In this episode…

Mr. Primeau believes it’s important to only answer what is asked, “I’ve learned over the years that you never want to . . . try to follow where the attorney is going, whether that be on direct or cross. You want to just answer the question.” Furthermore, he states that a good attorney can provide cover to minor mistakes “. . .the attorney that has retained us is going to clean that up on redirect; you don’t have to necessarily worry about [small mistakes]”.

Additional topics include preparation, ethics, and report writing, as Michael states, “We don’t let our clients influence opinions. But the way things read; we can.”

 

Episode Transcript:

Note: Transcript has been lightly edited for clarity

Host: Noah Bolmer, Round Table Group

Guest: Michael Primeau, Owner of Primeau Forensics

Noah Bolmer: Welcome to Discussions at the Round Table. I am your host, Noah Bolmer, and I am excited to welcome Michael Primeau. Mr. Primeau owns Primeau Forensic, which specializes in the enhancement, authentication, and recovery of audio, video, and images. He is a sought-after expert witness with over eight years of experience. Thank you for joining me.

Michael Primeau: It is a pleasure to be here. Thank you for the opportunity.

Noah Bolmer: Absolutely. Let’s jump into it. You have a background in audio engineering, but it looks like you shifted to forensics. Tell me about your firm and how you became interested in forensic analysis.

Michael Primeau: Sure. My father started the firm back when I was a young tyke before I could get involved and saw an opportunity for me to rise through the ranks. I began showing signs of wanting to be an engineer when I was very young, taking apart toys and trying to figure out how they worked. The meat and potatoes of our business were in audio and video production, but Dad practiced audio and video forensics with that. He began growing the firm when there was an opportunity to shift more into the digital realm. When digital audio and video evidence started hitting critical mass, there were more recorders, cameras, and phones recording evidence, we went full-blown forensics, and I began my pursuit in audio engineering. Back in high school, I started learning more about studio recordings, production, and playing with microphones, and was also a musician, so, I pursued an undergraduate degree in audio engineering technology from the University of Southfield, Lawrence Technological University. Then I began my career in forensics by pursuing certifications through agencies like LEVA, which is the Law Enforcement and Emergency Services Video Association. I have some training from the University of Colorado Center for Media Forensics and then began getting training and tools that we use to provide digital media analysis. Some of the big names include Axon and the AMP product line. As more and more digital evidence started to be recorded, more and more needs began coming to our firm to clarify and authenticate those recordings.

Noah Bolmer: Along those lines, I would like to ask you, how do you remain an expert in your field? This technology is constantly evolving, and the way we did this stuff five or ten years ago was different from the way it is happening now. What does it mean to be a forensic expert and remain a forensic expert?

Michael Primeau: That is a great question. After getting my degree in audio engineering, I started practicing video forensics. Best practices were what we drooled over. People smarter than us were testing the tools, looking at how proprietary surveillance is created, along with how to unpack those recordings and make them more readily available to courts, and make sure that was done accurately so agencies like SWDGE, the scientific group working on digital evidence, pushed to promote and publish those documents in great lengths, which is where we live and rest our hats. I was recently asked on the stand, by the attorney I was working for “You know what? What is your opinion? What do you think?” I looked at him, the judge, and the prosecutor and said, “That is the best part about what I do. It does not matter what I think. It matters what the evidence says. It matters what the test result is. It does not put it on my shoulders. I am just interpreting that information for a trial, a judge, and a jury.” So, when technology evolves and we are on the front lines, like when there is an update with an app or there is a change in the way the camera works with the firmware. We test that information and have a known exhibit called an examplar to compare. Recently, I was appointed to the video committee. I joined SWGDE as a member, and I am currently serving as the video committee chair. I am so stoked. It is an honor to be a part of an agency that is generating these documents that I once drooled over at a young age. I started practicing very young and I testified for the first time when I was 21 or 22. I was scared, going up in front of the court. Best practices have led us through that because, at the end of the day, it does not matter what we do. It matters what the method says so that everyone can arrive at the same result. If someone like me has similar qualifications on the other side, we are going to arrive at the same result.

Noah Bolmer: Let’s talk about those first cases when you were young you were an audio engineer and then shifted to forensics. How did this become expert witnessing? What was your first engagement? Is it something that you were looking for or did it come to you out of the blue?

Michael Primeau: It kind of came out of the blue. We were advertising locally and nationally with Google. Many of our clients back then are still clients today. New clients come in from all over the country looking for investigative work or forensic work. My first case was an enhancement case. If I recall correctly, it was a stabbing, and we clarified the imagery so that you could see what had happened better from a distance. I was qualified as an expert and had the training to do the enhancement work. I told the attorney at the time, “I have never testified. Is that going to be a problem?” He said, “Everybody has a first time on the stand and the judge is going to be cognizant of that.” That is what the Daubert rules or the fry rules, depending on what state you are in, come into play. So. I was qualified as an expert. I explained to the court and the prosecutor came out on cross-examination and asked some very straightforward questions. “How do you explain this?” “How do you explain that?” “What did you do here?” I answered the questions and thought on my feet for the most part. In the end, I passed him after I got off the stand. And he said, “You know, I was trying to make sure you knew your stuff because I want to use you on another case.” He wanted to use me on the co-defendant’s case. We ended up being retained and there was no conflict there because it was a different defendant. We then worked for the prosecutor, and from there, it was all downhill. I was blown away that he had asked that question. We started doing more and more work in different areas other than enhancement. We did authentications and comparison analysis and began working on larger cases. From there, the CV just kept coming and here we are.

Noah Bolmer: Let’s talk about your preparation during those early cases. Did you feel prepared during that first case and other early cases to be cross-examined, to write a report, and do all the things that expert witnesses do, or has that evolved? What can attorneys do to better prepare newer or first-time? expert witnesses?

Michael Primeau: That is a great question. To answer your question, I do not think I was prepared to know what was to be asked during an investigation and cross-examination. I have learned that understanding the method goes further than you think. Depending on the situation, whether it be a rebuttal situation, getting an exhibit admitted, offering an expert opinion, or understanding the limitations of the methodology is important. Communicating all the aspects of the case with your Counsel is critical. There have been times when I left the stand shaking my head and saying, “I could have done better.” Unfortunately, it was due to Counsel and I not preparing enough or understanding where cross-examination was going, and understanding a minute detail I did forensically that I may not have thought important. We did not communicate so; we were on the same page.

Noah Bolmer: How has that improved going forward? What are the things you use these days to counter those possibilities that sometimes happen during a case?

Michael Primeau: With every investigation, we generate a list of questions. We go through those questions for direct testimony so both of us understand. It is like a script but more like bullet points. We know what to say, the technical terms we will use, and find any weaknesses. That is important. The uncertain things we may say. What components we may not have investigated thoroughly enough and may not have had that opportunity to do so. Preparation is the most important component of any testimony.

Noah Bolmer: Do you ever do mock cross-examinations?

Michael Primeau: I was prepping one of our technicians this morning. It was her first time testifying and she was nervous. Over-preparing is the most effective way to do it. We were told by Counsel there was not going to be a cross-examination. It is a specific type of case with a specific type of judge. This is not your normal encounter. I said, “That is great, but I think it is important for you to be over-prepared in this case. If something happens, you do not want to be blindsided when you testify with anything you do not know.” Equally, an attorney never asks a question that they do not know the answer to in court, which is dangerous. I have worked with many good trial attorneys. II you ask them a question like, “What do you think if this happens?” and, they say, “This is what we will do.” That is brilliant. They have 30 or 40 years of hardened experience that can explain how it is done to a young punk like me. You must have a middle ground. Where does the forensic meet the legal?  Where is the intersecting point? How are they going to shake hands? Can they shake as friends? So, I would say many of those are based on experience, and much of it is based on method. I always go back to the method especially, as a model witness when an expert may or may not be qualified to do the work is coming in and saying, “This is what I see.” or “This is what I hear.” or “This is my opinion.” It has to be objective. Otherwise, why are contracted? Why are we testifying? That is where the method comes in.

Noah Bolmer: Do you find yourself being passive during preparation and just letting counsel inculcate you with the wisdom that you need for the case? Do you find that you must question them often and figure out where that intersection point is? What are the possibilities of being cross-examined on something they may not have thought about? Do you feel that you are on the team, or are you there to answer questions and call it a day?

Michael Primeau: I think it depends on the type of case. At the beginning of the case, we have a team that will intake all of the notes and requests. So, our best practices say, “If you are a law enforcement officer and you are going to be doing this in a lab, you are going to get a request from your superior and it is going say, can you enhance this license plate, come back and say yes confidently. I have the ability to do so, let’s process it.” You get the recording and, in many cases, civil or criminal, it does not matter, the attorney has an abundance of information they want to share. We must stop them and say, “To mitigate cognitive bias, I want to know what you need, and we will do the testing. We can draft a report, have a discussion, and prepare for expert testimony.” In the beginning, we take that step to protect the forensic process. Then, depending on where the case goes, if it is going to a settlement conference, if it is going to trial, we can then lay back a little and collect some of the information they are offering us. Maybe there is something that needs to be examined in a police report, witness statement, or a deposition transcript. Then, when it is time to testify, I would say a majority of our clients look to our expertise. What do you want me to know? Where do you want this to go? How do you want to do this? Then they will put up a fence or guard rails like, “You can go down this road, but I do not want you going this way or that way.” We must have legal expert training in our certifications because we should have some training on how to testify. We should know what the Daubert Motion looks like. We should know from past example cases how experts have testified in our field. The second thing is to start talking legally. This is dangerous. I have that inclination.  The attorney practices the law because I am not a lawyer.

Noah Bolmer: Have you been the target of a significant amount of oppositional research? In other words, do they try to quote, unquote, or impeach the witness when you are under cross-examination or during a deposition? How do you deal with it when somebody says your expertise is insufficient, in the wrong area, or you do not know what you are talking about?

Michael Primeau: My father says you must have thick skin to be in this business. I do not have to perform in that scenario. I have learned over the years that you never want to follow where the attorney is going, whether that be on direct or cross-examination. You want to answer the question and understand what is being asked. During cross-examination, I get into these tit-for-tats, but I ask questions. If they pose a definition like a word term I say, “If it pleases the court, can you please provide me with a definition?” That word can mean many different things and sometimes that frustrates them. Other times, this is what the attorney that has retained us is going to clean up on redirect and you do not have to necessarily worry about those things. What can become frustrating is when the attorney asking you the questions claims to know more than you do. You must take a back seat and make sure you remain calm. You answer the question you are asked and make sure you prepared correctly. These are tips and tricks that I have learned along the way. Early in my career, I learned one of my most valuable lessons.  I had to do an eight-hour deposition for a big firm. I was prepping with the attorney beforehand. It was a pro bono case. He looked at me and said, “I do not care if you say things incorrectly or make a mistake. We will go back and correct the record if we must. Do not get rattled. They are going to try and rattle you for the next 8 hours of your life. You must sit here and remain calm. We had one attorney working for me, On the other side of the table, you had two attorneys, the client, and the client’s expert. They were all writing questions on little pieces of notepaper and throwing them at the lawyer. That was questioned. It was the wildest, craziest thing I have ever seen in a legal cutting. I had to stay calm and answer the questions. If they throw a punch oftentimes, they throw punches and try to twist things. One of the most valuable things that our best practices agency did was generate minimum requirements for training. We fall back on that. Is it not true that you are not qualified to say this because of X,Y and Z?  I fall back on those documents. I fall back on my training, and that takes that pressure off me.  I do not have to perform in that scenario. I have been under fire before, and it is painful working for both sides of the court. When working for a prosecutor, a civil defendant, or a civil plaintiff, attorneys want to twist things depending on the situation. Unfortunately, that is the way that the legal game works. I do not know if you want to include that. I do not know if they might find that. It is one of those things where it is a game. But staying focused on the question plays a huge role. Being properly prepared to answer those questions. Until a year ago, I had no idea there was a thing known as a hard cross and a soft cross. Understanding the difference between those two things and anticipating you are going to undergo a hard cross, we got to prepare you for little nuances like that in preparation can make all the difference. Being very well rested and being well caffeinated helps, I learned testifying after lunch, depending on the lunch, you get sleepy. Rest has played a huge role. If I am tired that day, I have a hard time focusing on details, and then depending on the rules, having notes or a report to fall back on. I was testifying last week and something I said in the report could have been interpreted differently, and I kept getting asked that question. Finally, I said, “You see my report, I do not remember reading that way.” Then I read that statement and opinion, looked at the jury, and said, “This was not intended to be read that way. This word meant this.” I clarified that for them. That 15 minutes of back and forth went away. Let’s go look at the report. That is okay to do. I have learned it is okay to stop everything and make sure that detail is correct. I looked at the judge and said, “Your Honor, I think I made a mistake early, and I need to correct the record.” I said, “They will go back and correct it. If they allow that. The only way to provide accurate testimony in forensic science is through detail and focus.”

Noah Bolmer: Let’s pivot to whether or not you accept a client. Do you turn down a significant number of engagements, or do you take most of them?

Michael Primeau: I will turn down engagements when we feel like it is not a good fit to apply the methodology and whatever comes out the other side is what comes out. I get many clients, attorneys, private citizens, or insurance adjusters who call and say something to the effect of authenticating the recording, and what can I say? Great. Right. So, I call them and say, “Great. Then I guess you do not need us because that is what we do.” I am not being snarky, but that is not what I do. I am not going to prove what you want to be true if it is not what the evidence says. I am going to know. With every authentication case, I make my clients aware of that. It could be this or it could be that and whatever the evidence represents is what I report. Where there are cases where you feel I am going to be a hired gun or that is what they are pushing for, and it may not be intentional. They come back and say, “No, that is not what I meant.” and that is fair. They have their opinion, but if they are looking to push their agenda, forensic science will not work. I am going to do it the way that it needs to be done and let the chips fall where they may.

Noah Bolmer: You have ethics. l does that come up often? Do you frequently have to tell somebody that it sounds like what they are asking for is unethical?

Michael Primeau: I would say in phone conversations, I have experienced it maybe one or two times a month with new clients.

Noah Bolmer: Okay.

Michael Primeau: It is not something we get often. We get more inquiries from our private clients seeing UFOs in their backyards or things like that. They take their cell phones out and record videos. My favorite one is DUI tapes. That is the one I get frequently, and you ask them how much they blew. We do not experience unethical situations in court often. I can only recall one case that happened, and it was an attorney who wanted us to do something unethical. I said, “I do not feel comfortable doing this. I need to do my testing.” and they never retained us. They never called back. What a weak lawyer. The opposing client called and said, “This is my case.” We looked at the legal requirements and said, “We are not conflicted. You can go ahead and retain us. That was difficult for the other side, but that is the way that it works. So, we do not experience ethics violations often, but my certifications and my SWGDE membership have ethical requirements. We sign something that says these are what we are going to comply with. We recognize there is an ethical requirement for experts so, I could not get paid to do whatever I wanted even if I tried.

Noah Bolmer: Let’s shift to report writing. Do you frequently get a skeletal outline for a report, or are you typically generating your report whole cloth?

Michael Primeau: We typically generate it whole cloth whenever a case like those we have done previously. We will go and revive those as a structure. The only time we receive something like that is maybe an affidavit where that jurisdiction has a specific and time effective. We do not go back and forth trying to make sure everything looks like it should for that county. The attorney will send something that says, “This is an accurate reflection of your report.”  With report writing, we typically start from scratch unless we have bones that we can work from. Reports are a tedious process because we are trying to map out all of the details and get everything in. After all, when it is time to testify, we need to get that right. Sometimes clients do not want that. They do not want a report and predictions. It is not a requirement for the admissibility of the testimony. I always make it clear to my clients that we can review reports. I am happy to change the way things are working. I do not speak legalese. Attorneys speak a different language than I do. I speak forensics. So, when I write it down, it might sound a little complicated when it comes to opinions. Those are bulletproof. We do not let our clients influence our opinions, but the way things read can be changed. We can go back and forth until we make sure it is clear enough for the court to understand.

Noah Bolmer: Along those lines, your expertise is very technical. How do you bring that down and make it more understandable for laypersons when you are in front of a jury? For instance, what techniques do you use to do that? Something is making the case for you but is understandable for the jury and the attorney who is not an expert in your area.

Michael Primeau: I watched a state police officer testify last week. He was testifying in digital forensics, a practice I do not do. While he was talking about digital forensics, I remember sitting there thinking, “I am having a hard time following him. I wonder if the jury is following.” I looked over to the jurors and they had a long week at trial, and that is how it goes. I speak slowly and intentionally. It helps me think. After working on a case for months, there are things I want to say, whether it is on the stand or during a deposition, I always want to rattle off stuff to get it out of my head and make everyone understand what I am thinking, what I have done, and to answer the questions giving them as much meat as I can. I try to maintain eye contact on the stand with the jury and the attorney and explain things clearly and slowly. The 6^th understanding rule applies. If I am using words like concatenate, sign, or waveform analysis, nobody knows or cares what that means. They want to know what else I am going to say. I try to paint pictures when I am explaining metadata analysis and container analysis. I use an example, like if you receive an Amazon package or something the judge and jury can relate to and conceptualize. It helps if you can see things in your head when you are talking about numbers in a computer program. I try to use examples as much as possible. I have been told by many of my clients, and I am not trying to brag, it is a useful technique. I use real-world examples to make things relatable so they can grasp and retain them because if I was listening to someone talk for three hours, I would go to sleep too. That sounds terrible to someone like me, to talk about something that is a fraction of a part of this huge timeline of a case.

 

Noah Bolmer: So, it is not just using smaller words, it is analogizing.

Michael Primeau: It is painting pictures with words. I think it is helpful to use illustrations if you can. Using PowerPoints and exhibits that you print on foam core. If you have a chance to make a video exhibit referencing a topic, an image or an exhibit can be helpful of course, keeping it short, I do not like monologuing for hours at a time. I know when I look over and see someone is not listening to me and that is okay. That is what the report is for. So, I try to make the court feel like I am not the King of the Room.  I am here to help you. That is my job. You are going to make the decision. Sure, if you ask me for my opinion, I may have one, or I may not. The judge may allow it or not, but you are the ones who are going to make this decision. So let me help you.

Noah Bolmer: Before we wrap up there are a few things that I like to ask everyone, and my favorite is does winnability factor into whether you take a case? How important is winning to you? Is it something that you take into consideration, or do you not care and are ready to move on to the next case? I have heard many different opinions on these.

Michael Primeau: I would say winnability does not factor into whether I take a case. I think it factors into whether or not a client will retain us because I get many advancement investigations where if you do not get anything. If we cannot enhance this then we will get our money back or we will be able to do this. I say “No, I mean I must do the work to understand if something is going to come out on the other end.” So, what I always try to make clear is I am only going to take a case if the forensics are helpful. Not necessarily helpful resolution like to help them, but if I can apply the method when we are doing a height analysis or a speed analysis, many factors go into an analysis like that. If the recording does not have all that information and creates more problems than it does solutions. I am going to tell the client, “What I am going to say may not work if this is a picture, of a picture, of a picture, we are not going to be able to do the analysis. So, I try to make it clear that when I am retained on a case if I cannot apply forensics, I do not want to take your money because it is not going to benefit either of us. Another thing I try to push is if we are getting pushed back on a case with results I say, “My integrity is one component I want to preserve, but I want to preserve the integrity of your case. Even if I do what you want me to do, it is going to self-destruct in court. That is the worst place to be. So, let’s go ahead and avoid that. Let’s do it, and if it is not a good fit then it is not a good fit. We do not have to be retained, and that is okay. So, no winnability is not a factor.

Noah Bolmer: There is one thing that I would like to go back to. You said you tend to get hired more or re-hired again if you are on the winning side of a case. Can you tell me more about that? Is that something that is a big factor? Do you find that rehires are much more frequent when you win? Do you find that word of mouth spreads and gets you more engagements when you win, or is that just one factor among many?

Michael Primeau: I would say most of our clients are new clients in the infancy of our field.

Noah Bolmer: Okay.

Michael Primeau: A small percentage of our clients come back years later because we are like an emergency room. They come to us when they need something, and they do not often have video surveillance recordings in their case. Helping them through the problem is why they would return if they had that problem again. I have had some clients who have told me we played a pivotal role in saving their clients, winning millions of dollars, or getting them off death row. If the client returns 15 times after that, I do not have that experience with clients. If the forensics win, I will get a return phone call, but I do not have a winnability streak. We work for different walks of litigation. I have been retained by pharmaceutical companies, and even when I have told them they do not need me, they could figure this out. They say, “We want you to come down to do this.” I have done work for the federal government. I have done work for all walks of courtroom life, state, and federal so, it depends on the situation. In general, even if I did get more clients to come back, I do not get paid more to win anyway. It is not much help.

Noah Bolmer: Let’s finish up with billing. I like to ask everyone because there are many different opinions out there. Do you prefer project-based billing? Do you prefer hourly? Do you take a retainer?

Michael Primeau: We typically take a project-based retainer with consulting agreements because we are working for a long period. We try to get that money approved upfront, so we are both on the same page for the scope of that project. For example, a site inspection will provide a proposal that has 2 days of work travel expenses. We return to the office, do more work, and then issue a report. When it comes to testifying or investigative work or analysis work that is billed hourly to put together a package. Then have some sort of retainer at minimum upfront. When you are working on a court-appointed case those rules are completely different. They have a limitation as to what they can do. For an hourly rate, when you are working on a civil investigation, maybe the insurance company does not want to cover the fees or whatever. There are different steps we take with that. It depends on the case, but for the most part, if we are providing a service like an enhancement that is based on an hourly amount, we try to get that approved upfront because some agencies take several months to provide funds. If I am working for someone like law enforcement or where they may have a net.60-degree turn, we try to be flexible with that as long as we agree on the money up-front. If we agree, we will proceed. Packages are used when we consult for large investigations.

Noah Bolmer: Mike, any last advice for newer experts or attorneys that you found to be helpful throughout your career?

Michael Primeau: I would say that it is always an enjoyable experience when my club tries to understand the work we do. We work more effectively together when they can understand it, maybe not all. We spend months studying it, reading books, and just asking questions, like what about that? Or that statement you made, Is there an opportunity for this or that? So, working together to have those conversations because I learned from reading a book recently that we think when we speak to each other when we have conversations when we go back and forth it helps both parties to think. especially when you are in litigation or pre-litigation. A couple hours of consulting, where we are talking about these things and understand at least the core components brings new heights to a case that we can continue to investigate, or we arrive at these conclusions. I would say having that interest level is important.

Noah Bolmer: Sage advice. Thank you, Michael Primeau, for joining me today.

Michael Primeau: Thank you, I appreciate it.

Michael Primeau, Managing Partner, Primeau Forensics

Our guest, Michael Primeau, is the managing partner of Primeau Forensics, a firm specializing in the enhancement, authentication, and recovery of audio, video, and images, and has over eight years of experience as an expert witness.