Judge Says No Pinch-to-Zoom of Images Without Expert Testimony: eDiscovery Trends

I’m not a political guy and this is not a political post. It’s a post about technical competence of lawyers and judges that relates to the Kyle Rittenhouse trial currently underway. In that trial, Judge Bruce Schroeder ruled last week that prosecutors would have to introduce an expert to prove that images taken from a drone were not distorted if they used the pinch-to-zoom function on an iPad to make them easier to see.

As reported by Ars Technica, Judge Schroeder prevented Kenosha County prosecutor Thomas Binger from pinching and zooming after Rittenhouse’s defense attorney Mark Richards claimed that when a user zooms in on a video, “Apple’s iPad programming creat[es] what it thinks is there, not what necessarily is there.” Richards’ objection was as follows:

“I don’t know what the state’s going to do next, but I suspect that it’s something along the lines of… they’re going to use the iPad, and Mr. Binger was talking about pinching the screen. iPads, which are made by Apple, have artificial intelligence in them that allow things to be viewed through three dimensions and logarithms.”

As the article states: Richards was apparently trying to say “algorithms.” When asked to repeat himself, he called them “alogarithms” and added, “I don’t understand it all, either.” (Gee, you think?)  Richards then claimed that pinch-to-zoom on an iPad screen adds things that aren’t actually there into an image, and he asked the judge to disallow it.

Binger responded that pretty much everyone who owns a smartphone has zoomed in on photos and videos and understands that doing so doesn’t change the image in any fundamental way, stating:

“I think everybody in this room has a smartphone, whether it’s an Apple iPhone or some other device, and I think we’ve all taken a photograph or a video at one point or another and used the pinch-to-zoom feature. This is a common part of everyone’s everyday life. In the olden days, you had a photograph and a magnifying glass, right? That doesn’t change the photograph. When you use a magnifying glass to look at words on a paper or a photograph, the magnifying glass doesn’t change the image. It doesn’t change the pixels on a paper, it doesn’t change the words in the book. All it does is make them easier to see. The pinch-to-zoom feature on the iPad or the iPhone or Android phone—whatever device everyone in this room has—does that exact same thing.”

In response, Judge Schroeder said:

“Well, I don’t know. When I put the magnifying glass up, it’s enlarging the image, it is not altering the image. What [the defense attorney is] saying, I think, and I know less than anyone in the room, I’m sure, about all of this stuff, but I’m hearing him to say that they are actually artificially inserting pixels into there, which is altering the object which is being portrayed.”

Despite that fact that Binger pointed out that “the defense has taken videos and photos and cropped them and zoomed in on them on many exhibits in this trial…We had a guy coming in yesterday with Walgreens prints. This is what is done with photographs all the time, there’s enlargements done in the lab. It doesn’t change the pixels”, Judge Schroeder ultimately ruled he would not allow Binger to “amplify” the video—meaning, zoom in on the video—unless he got an expert to testify that doing so wouldn’t alter the video. After a recess, Binger cross-examined Rittenhouse and displayed the drone video on a 4K TV hooked up to a Windows computer instead.

Wow.

There’s a lot more to the discussion in the article — check it out for more of the back and forth discussion. And hat tip to Carolyn Southerland of CDE Legal for the heads up on the story – I missed it when it happened last week.

So, what do you think?  Do you agree with the defense attorney and the judge that the “logarithms” that Apple uses in its pinch-to-zoom feature can distort the image? 😮  Please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © New Line Cinema

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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