State v. Stokes

Decided: March 27, 2023

James Scott, Assistant Prosecutor, for plaintiff (Angelo J. Onofri, Mercer County Prosecutor, attorney).

John S. Furlong, for defendant (Furlong & Krasny, attorney).

LYTLE, J.S.C.

I.

Yuell Moore was shot and killed in broad daylight on Hudson Street in the City of Trenton on March 25, 2020. The Defendant, Ravel Stokes, was arrested in connection with the murder on February 5, 2021. On July 20, 2021, the Mercer County Grand Jury returned Indictment 21-07-0507, charging the Defendant with First Degree Murder (Count I), Second Degree Possession of a

Weapon for an Unlawful Purpose (Count II), and Second Degree Unlawful Possession of a Firearm (Count III). He subsequently entered a not guilty plea to the charges.

The State filed the instant Motion to Admit Expert Testimony Pursuant to N.J.R.E. 702 on January 5, 2022, at which time this case was being overseen by another judge. By way of the motion, the State seeks to introduce at trial the testimony and opinions of its proposed expert, Detective Brandon Epstein. If allowed, the detective will opine that an individual captured in a surveillance video taken from a camera located at 60 Hudson Steet seconds before the homicide is of a similar height as the Defendant. The motion raises an issue of first impression because the detective's opinion is based on a technique known as reverse projection photogrammetry, which has never been admitted before in this State.

On December 7, 2022, the court conducted a N.J.R.E. 104 hearing where the State elicited testimony from its proposed expert. The defense did not call any witnesses at the hearing. On December 8, 2022, the court entered an Order inviting the parties to submit additional briefs, which the State provided on January 9, 2023.

On February 17, 2023, the New Jersey Supreme Court issued its decision in State v. Olenowski, 253 N.J. 133 (2023). The Court in Olenowski abandoned

the Frye "general acceptance" test for use in criminal cases to evaluate the admissibility of expert evidence under N.J.R.E. 702 and replaced it with principles similar to the standard outlined by the United States Supreme Court in Daubert. Id. at 138-39; See also In re Accutane Litig., 234 N.J. 340 (2018). Compare Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) with Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Stated otherwise, Olenowski represents a shift in this State's criminal jurisprudence from the exclusive reliance on Frye's "general acceptance" standard to determine the reliability of expert testimony to a methodology-based approach that is guided by a nonexhaustive list of factors set forth in Daubert. Olenowski, 253 N.J. at 151-52.

The Court emailed the parties immediately following the release of the decision in Olenowski to determine if they wished to submit additional briefing and both declined. This decision, granting the State's motion, follows.

II.

Detective Brandon Epstein was the only witness to testify at the N.J.R.E. 104 hearing. The motion papers included a copy of his curriculum vitae and expert report, the latter of which was admitted into evidence for purposes of the hearing. The State proffered Detective Epstein as an expert in digital forensics.

During the detective's testimony, he did not contradict himself, he listened carefully to all questions, and his responses appeared to the court to be

thoughtful and candid. He readily acknowledged weaknesses in his analysis and opinions. Throughout his testimony on both direct and cross-examination, he demonstrated a demeanor of measured, careful confidence and displayed a good recollection of his participation in the case. He also possessed the ability to process his recollection into responsive answers to questions at the hearing. As such, the court finds that Detective Epstein was a credible witness.

Detective Epstein began his law enforcement career with the City of New Brunswick Police Department ("NBPD"). He was employed by that agency between April 2007 and January 2019, beginning as a patrolman until he was transferred to the Street Crimes Unit and later to the Major Crimes Unit within the department. Detective Epstein's interest in the field of digital forensics began in 2014 while he was assigned to the Major Crimes Unit. According to his testimony, law enforcement at that time was seeing a major influx of video evidence but lacked sufficient resources to handle the data. As a result, early in 2014, Detective Epstein petitioned his administration for training and equipment to improve the manner in which digital evidence was processed. He thereafter helped develop the Digital and Multimedia Evidence Laboratory within the NBPD - acting as its Laboratory Director from January 2017 to January 2019 -which was responsible for performing the video forensics work for all the law

enforcement agencies within Middlesex County. Since that time, Detective Epstein has spent the vast majority of his career performing digital forensics.

Detective Epstein left the NBPD for the Middlesex County Prosecutor's Office ("MCPO") in 2019. Throughout the detective's career with the MCPO, he has been assigned to that agency's Digital Forensics Laboratory ("DFL") within the Technical Operations Unit. According to Detective Epstein, the DFL is responsible for the extraction and analysis of digital evidence from electronic devices (e.g., cell phones, computers, video recording devices) for use in criminal investigations and prosecutions. He testified that his current specialty is in forensic video analysis, which he defined as the scientific examination, evaluation, and/or comparison of video in legal matters. While at the MCPO, Detective Epstein estimated that he spends fifty percent of his time on digital video forensics and the other fifty percent on other forms of digital forensics.

Detective Epstein received a Bachelor of Science Degree in Criminal Justice from American Intercontinental University in 2017. He thereafter received a Master of Science Degree in Recording Arts, with an emphasis in Media Forensics, from the National Center of Media Forensics at the University of Colorado at Denver in December of 2020.^[1] He described the Master's

Program as a hybrid that involved both online and in-person coursework. It began with foundational instruction on the fundamentals of digital forensics and research, which was subsequently built upon with semesters of instruction in specific disciplines, including image, audio, video, and cell phone forensics. The program concluded with what he described as a capstone semester of report writing and testimony involving various case scenarios. During that same semester, the detective was required to complete and defend a Master's thesis which focused on video authentication and source identification of video files transmitted to Apple iPhone devices.

In addition to his formal education, Detective Epstein has received training in digital video analysis, primarily from an organization known as the Law Enforcement Emergency Services Video Association ("LEVA"). He described LEVA as a non-profit industry organization comprised of federal, state, and local law enforcement participants, as well as private examiners, members of the judiciary, and academics.

According to Detective Epstein, his LEVA training consisted of four week-long training courses in forensic video analysis. The first week of training covered the fundamentals of acquiring, extracting, and copying video from

digital video recorders. The second week focused on processing the video to allow for playback. The next week of training centered on image analysis and comparison of objects in recorded imagery and comparing them to known objects in the real world. The final week concentrated on advanced video forensics though case scenarios that required him to produce a report and present it in a moot court setting. Detective Epstein explained further that throughout the four weeks of training, there were various other assignments that he had to complete and examinations that he had to pass in order to receive credit. In addition to this four-week course, Detective Epstein also attended the annual digital forensics conference held by LEVA in October of 2022 and a conference held by the American Academy of Forensic Sciences in February of 2022.^[2]

As a result of his education, training, and experience, Detective Epstein has become a Certified Video Forensics Analyst through LEVA and a Certified Forensics Video Examiner through the International Association for Identification ("IAI"). To maintain these certifications, he has been required to take approximately forty (40) hours of additional continuing education. Notably, given the subject of Detective Epstein's proposed testimony, he also

holds a forensic video and crime scene photogrammetry certification from Cognitech Incorporated.^[3]

The detective is also an adjunct instructor at the New Jersey Institute of Technology. There, he teaches 400-level courses in mobile device forensics and video forensics. He has also developed various other courses on the same subject matter.^[4]

Detective Epstein currently sits on the Digital Evidence Subcommittee for the National Institute of Standards and Technology ("NIST"), as well as the Computer Crimes and Digital Evidence Committee for the International Association of Chiefs of Police. He is also a member of the Forensic Video

Certification Board of the International Association for Identification and has authored the following two peer-reviewed scientific publications:

(1) Brandon Epstein &Bryce Garreth Westlake, Determination of Vehicle Speed from Recorded Video Using Reverse Projection Photogrammetry and