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White Paper: Forensic Lip Reading
- Oct 9, 2019
- Latest News
This paper is intended to clarify the reliability and process of forensic lip reading, the proper application of this skill for the Court, what to look for in a good lip reader, and how to produce video material that is more useful to a lip reader.
Forensic lip reading
Lip reading is analysing the movements of the face and neck, expression, and context, not just looking at the lips. Forensic lip reading (or speechreading) is the application of this skill for information or evidential purposes, analysing minutely what is seen on video material rather than a one-off attempt in real-time.
An expert witness is one who gives their opinion as an expert in this field, whose expertise is outside the field of a judge or jury. The opinion of an expert is unnecessary if a judge or jury can form their own conclusions on the proven facts.
Lip reading is a skill recognised by the court and lip reading from video footage is the application of this skill.
Whether a witness is competent to give evidence as an expert is for the judge to determine.
“Courts in England and Wales have been left, unassisted legislatively, to determine ad hoc, the relevant expertise and the qualifications for the provision of the expertise… The quality of the expertise, however, may emerge only as a result of an assault by the opposing advocate, on the basis of specialized knowledge from the opponent’s expert.”
- Sir Louis Blom Cooper, Experts in the Civil Courts (2007)
The party wishing to call the expert must satisfy the judge that the witness is indeed an expert. No formal qualifications are required by law as constituting “expertise”. Experience may suffice. According to Malcolm Gladwell it takes an average of 10,000 hours of practice to achieve mastery in a field, equivalent to 90 minutes per day for 20 years. Not only the quantity of hours spent practicing but also the quality of that practice is important. Therefore a person who relies on lip reading as their primary communication tool will be a far more proficient lip reader than someone who does not.
Guidance from the Director of Public Prosecutions to prosecutors and the police is that the judge should satisfy themselves as to the qualifications, experience and expertise of the proposed expert, looking for clarity, impartiality, objectivity and certainty. Prosecutors and police are cautioned to recognise that a witness may be more firm and confident in a written report or pre-trial conference than they might turn out to be at trial under cross-examination. Any solicitor wishing to instruct an expert will also have those qualities at the forefront of their considerations.
When seeking to instruct an expert, solicitors are encouraged to find out:
On what basis the ‘expert’ feels qualified to advise in a particular case
The expert’s recognised qualifications
The expert’s practical experience
The expert’s accreditation
How to instruct an expert witness forensic lip reader
A solicitor acting under a Representation Order can obtain a written expert witness report by applying to the Legal Aid Agency (LAA) for prior authority. In order to make such an application, the solicitor must complete and submit form CRM4.
Prior authority to incur such expenditure will usually be granted if the Area Committee is satisfied that the steps are necessary for the proper conduct of the proceedings and are reasonable in the circumstances. Applications must be made in good time and with sufficient information to allow the Area Committee to make a decision.
The expert lip reader must provide the following information to the solicitor:
Name and address.
A detailed preliminary quote including charging rates (ex VAT) per hour for preparation, travel time, work, and court attendance.
Details of the type of expertise, qualifications, experience and accreditation that the expert possesses.
Where there is an instruction as a single joint expert, that appropriate air locks have been put in place, i.e. no information is relayed to the expert which could potentially influence their reading.
A full CV.
It is always useful if the expert can also give a preliminary view on how his report can assist the defence case. For expert lip readers, however, this is unlikely to be possible since to protect the integrity of their report it is important if not vital that they be told nothing or as little as possible about the nature of the case they are examining much less the issues likely to arise in it.
Attending court as an expert witness
Court attendance fees cannot be authorised in advance as they are payable out of central funds rather than through prior authority or on taxation. A solicitor should obtain an expert’s charging rates for attending the trial to give evidence, and seek confirmation from the court taxation office that the fees are likely to be paid.
The expert should notify the solicitor of their diary commitments and availability at the outset, and before accepting instructions. The solicitor and expert should liaise to confirm the expert is available to attend the trial dates where lip reading evidence may need to be given.
Duty of a forensic lip reader
The airlock and confidentiality
When presenting expert opinion, it is important to distinguish between those topics which are scientific and those which are skills, typically based on experience. In a properly validated scientific method, two observers would at least normally come to the same conclusion about the data, otherwise there would be a question as to the objectivity of the observations. Lip reading does not fall within this area; it is ‘a well recognised skill and lip reading from video footage was no more than an application of that skill’.
In the Luttrell case, attempts were made to convince the Court of Appeal to issue ‘good practice guidelines’. While the Court of Appeal declined to issue guidelines and procedures, those that were drafted are to be highly recommended and should serve as the watch-words by which lip reading experts are instructed and accept instructions.
The draft procedures should as a minimum include the following:
1. Assure that all attempts to get a useable speech record have been made. This should, where possible, be an audio-visual record. A record of speech where the audio component alone is inadequate can still be useful, since visible speech actions complement those that are hearable.
2. Preparation of the video record. The video record to be used by the expert must have a visible clock counter indicating seconds, minutes, hours. This may be added digitally to a copy if it is not present on the original. It is strongly recommended that whenever possible, the lip reader is given access to the original copy of the recording. Videos can be enhanced to improve the quality of the image for the lip reader. Where the video record has been edited, this should be clearly indicated. Importantly, particularly for the initial viewing and first report, the video record to be used by the expert should be labelled with the case / police reference number BUT NO FURTHER INFORMATION WHATSOEVER. All further references to the video record should be to this case number and not to a case name.
3. Initial presentation of the video record to the expert. Here, the prime consideration is to avoid any (witting or unwitting) contamination in presenting material to the expert. Solicitors instructing the expert must be vigilant to ensure that nothing contained in their letter of instruction (or oral instructions) might compromise the integrity of the lip reader’s initial viewing of the video recording. It is of paramount importance that the initial viewing be totally unbiased and impartial and not leading (or perceived to be leading). No briefing material should be given to the expert and, equally important, no feedback whatsoever concerning its content.
4. Provided the expert deems the video record to be of use, the expert may then undertake to prepare a detailed report. It is important that the expert keep a contemporaneous log of his viewing including preliminary interpretations. The log must be available for disclosure if required, together with any briefing letter or oral instructions.
5. Oral briefings to the expert or his associates should be avoided. All responses from the expert should be in a recorded format. There must be no feedback concerning the fit of any provisional interpretations by the expert to the information sought by those instructing.
6. The expert’s transcript should be printed, should clearly indicate the setting of the speech and define each of the speakers using appropriate conventions. Where the interpretation is uncertain, this must be indicated. Where alternative interpretations are made these should be clearly indicated. Where specific briefing material was incorporated by the expert to achieve an interpretation, this should be indicated.
7. The transcripts should be headed with the case number and date at which it was finalised, and should be signed and dated by the expert as a final interpretation.
8. Any reports on independent lip reading tests that the expert has undertaken should be disclosed.
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