The defense team didn't introduce the animation during the trial and says it did not authorize Roder to release it. It is outraged that Roder would have shared it with the media (it's not yet clear whether Roder sold it but the defense believes he was paid.) The defense says it had a non-disclosure agreement with the Evidence Room that prohibited it from disclosing its work.
“We wish to make it very clear that the material that has been aired was obtained illegally and in breach of the non-disclosure agreement with the Evidence Room,” said one of Pistorius’ lawyers, Brian Webber, in a statement Sunday.
An article in the West Australian says:
Seven kept the existence of the footage secret until just hours before the show aired, sparking a frenzy in the US, Britain and particularly in South Africa, where the Olympic athlete's marathon murder trial is continuing.
Mr Pistorius' legal team tried to stop the video being aired, claiming that it had been given to Seven by a US-based forensic animator against their wishes.
That would account for the statement by another Pistorius representative that that they were in contact with Seven News before the airing:
It has come to our attention that Channel Seven purchased this footage unlawfully. In addition, during our engagement with Channel Seven, we received an undertaking that they would not air any of the material before the end of the trial." (my emphasis).
More from the defense statement:
"Its usage also constitutes a breach of privilege as this material was produced for trial purposes on the instructions of a commissioner, and the ownership of the copyright vests in the commissioner. No permission for the disclosure thereof has been given."
It's not clear when they got this "undertaking" or to whom it was given -- Roder or the defense team.
Since there's no jury, and it hasn't been admitted, I doubt it will affect the trial. If it was obtained in violation of the attorney-client privilege, the prosecution can't use it:
Stephen Tuson, an associate law professor at the University of the Witwatersrand in Johannesburg, said....
"If it was produced by the defence as part of their investigation and preparation for the trial, it's strictly privileged, it's confidential and it can not be used," said Tuson.
The Telegraph says the video doesn't match Oscar's trial version entirely. But, it also says:
However, it is possible The Evidence Room filmed Pistorius re-enacting both his own version and the state’s, in order to show which was more feasible.
It's also possible they played the parts with Oscar moving back and forth on his stumps in fast-motion. From the promo, it seems to me like they did.
(The voice-over on the promo is absolutely ghoulish -- very low and ominous, like we're about to see a horror movie.) Here's the cover shot for the promo:
The defense statement says the defense had not yet seen the footage and could not say whether it was a true reflection of Oscar's account.
My speculation: It sounds like the defense caught wind of the show only when Seven News started advertising it, hours before it aired, and called Roder, who told them the network had promised him it wouldn't air it until after trial, and then called the network to try and dissuade them from airing it, threatening legal action.
One question that comes to mind: Did the defense know Roder agreed to a paid interview, to be aired after the trial, and approve, having no idea Roder would share the ultimate work product with them as part of the interview? I think that's possible. Why would the defense do that? Perhaps Roder's company was still owed money for its work on the case and this was a way it could get paid. Oscar's been running low on funds and had to use the proceeds from the sale of his house to pay his lawyers. But I think the defense is being truthful that it had no idea the animation was going to be shared with the network.
It is also quite possible that Roder didn't give the network a copy of the animation or sell it, as opposed to letting the network view it as he was being interviewed, and that the network, in taping Roder, recorded the animation as it was being displayed on the screen. He may have been paid for the interview, not the copy of the animation.
While the show isn't available for viewing in the U.S., I have been able to watch a 10 minute segment with Roder available in Australia in which he explains the animation. (There are internet programs and apps that allow you to watch videos that are blocked in your country. I'm not going to mention their names here.)
From the segment:
In addition to taking the interviewer though the animation, Roder also plays sounds and shows images of experiments he did with gunshots and cricket bats -- he even plays a recreation of the sound of the magazine rack moving. Here's Roder doing a gunshot experiment and playing the sound of the bat:
Roder seems like a very earnest and competent expert and he's clearly trying to convince the reporter Oscar is innocent. I don't think he thought he was doing anything wrong. He may have gotten hoodwinked.
But whatever Roder's ultimate version is, the fact remains he agreed to an interview, showed the network the work he had done for the defense, and played his independent testing of gunshots and sounds. Even if he got hoodwinked as to the timing of the airing, I think it reflects poorly on his company and is likely to create trust issues, resulting in lawyers who might have hired him deciding to use a different expert.
The Seven News Network says it acted fairly, but it hasn't denied promising someone -- either Roder or the defense team -- that the interview wouldn't air until after the trial. Mostly it justifies airing the video by saying it was in the public interest and it presented both sides.
As to the poll that ran after the show in which 51% of the million votes thought Oscar was guilty, I suspect that was in large part due to the sequence of the segments. First it aired Roder and his video, then it aired a segment with a different guy arguing for guilt, and ended with friends of the victim crying about their loss. By the time the viewing public finished watching the tears, they probably didn't even remember what Roder had said almost an hour beforehand. Pretty cheesy, if you ask me.
In other Oscar news, the defense agreed to the release of the full 50 page psychiatric report. You can view it here via Scribd.