Video evidence is a digital representation of encoded light signals captured by a video camera. Captured data is stored and later presented in the courtroom as video evidence. On the other hand, humans process video evidence quite differently. We gather light data, but that data is not encoded. We choose our focus based on circumstances around us.

While video evidence can be acquired using legal authority, concerned citizens can also provide it voluntarily. In current times, citizens have the ability to post video evidence and stream it live to networks such as Facebook, Instagram, and other social media networks. As a result of the evidence flooding our feeds, it is impossible to ignore.

Combined with the biased intentions I outline further below, the ability to capture and publish video evidence frequently finds these videos being used as a weapon inside and outside of the courtroom. Follow along to explore two ways in which video evidence is used as a weapon.

Opposing counsel and the general public frequently take the position of “the video speaks for itself” or “you can clearly see what the officer did here.” However, as video recording technology advances and emotions are heightened, bias develops and subject reasoning controls an investigation. 

This is why an investigator must receive proper training to review video recordings. A forensic video analyst has the training and tools to dig deeper into a video recording’s data in order to answer the complicated questions accurately. On the other hand, a lay person will interpret the video for face value; watching and listening to the audio and video signals. 

As a forensic video technician and expert witness, I review video recordings every day. These include recordings for the defense and law enforcement in criminal cases, as well as for the plaintiff and defense in civil litigation. The most important part of my job as an investigator is to stay objective as I review recordings that could potentially influence my emotions and, ultimately, my opinions. 

The Oxford Dictionary defines bias awareness as; “Inclination or prejudice for or against one person or group, especially in a way considered to be unfair.” Bias awareness is the most important part of the investigation process in forensic video analysis. 

I am not saying investigators cannot become biased. However, a properly trained investigator has the necessary training and tools to effectively minimize the possibility of bias. One of the best methods to verify an investigator’s analysis and opinions is to submit the report for peer review by a colleague or an outside expert. This peer review verifies the scientific method used. Below are a few of the major types of bias a forensic analyst can experience without proper training.

“A consequence of cognitive biases is that science is misused, and sometimes even abused, in court.” Biases in Forensic Experts, Science Magazine 

According to the Oxford Dictionary, cognitive bias is “the way a particular person understands events, facts, and other people, which is based on their own particular set of beliefs and experiences and may not be reasonable or accurate.” Cognitive bias is often unconscious or unintended. They are based in processing information through personal likes, dislikes, and experiences on a pre-programmed level. In reality, cognitive bias is a distortion in how we perceive facts. It is based on subjective reasoning and, in turn, threatens objectivity.

Dr. Itiel Dror is an expert in the field of cognitive bias and a senior cognitive neuroscience researcher at University College London. His work focuses on the dangers to bias in forensic sciences, namely cognitive biasing. In forensic science, cognitive biasing can take on many forms as a technician, analyst, or expert. One such form is contextual bias, which is shaped by the background information experienced prior to an investigation. A second type of cognitive biasing is motivational bias, which I’ll explore more below.

We frequently see a type of bias known as anchoring or focalism. This is the tendency to rely too heavily on one piece of information when making decisions or generating opinions. Often in an authentication investigation, a digital signature may indicate that a third party software program interacted with the video file. However, that doesn’t provide sufficient support that the digital video file has been edited. In fact, the digital video file may have been opened with the third party software program. This results in mishandling of evidence, not editing. Thus, the first piece of information in an authentication investigation must not be relied upon in arriving at a conclusion and further testing of the equipment is required. Furthermore, subsequent observations are then affected by that information (LEVA Level 4 Training 2019).

“We define motivational biases as those in which judgments are influenced by the desirability or undesirability of events, consequences, outcomes, or choices.” Bias in Decision and Risk Analysis

Motivational bias is mostly conscious decision making as our subjective reasoning convinces our mind to think and react based on our own agenda. This also includes desiring or expecting a certain outcome in litigation. One of the most common motivational biases in experts is desiring or expecting a certain outcome of the forensic investigation in order to please one side of the litigation process or the client. This could even include a reward based on the work provided.

When their attention is otherwise engaged, people sometimes fail to notice a salient and fully visible but unexpected object or event. This is a phenomenon known as inattentional blindness. Inattentional blindness can be viewed as a byproduct of attentional selection. Our ability to focus attention enables us to ignore irrelevant or distracting information, but it occasionally leads us to miss items that we might have wanted to experience. An example of inattentional blindness in a investigative application is featured below:

I recently participated in training provided by one of the leading companies in video analysis software for law enforcement, InputAce. The training is intended for all walks of investigative life. Throughout the week, we were presented various video recordings involving excessive use of force that have surfaced on social media and made national news. Although event circumstances varied, the contention stayed the same.

Lack of training, bias, and subjective reasoning frequently transform cases from a criminal investigation into systematic injustice. Examples of such cases include George Floyd, Laquan McDonald, and Trayvon Martin. In other words, the general public and the media became investigators all at once, without the necessary training experience and qualifications for a criminal investigation. 

More than 800,000 law enforcement officers were reported on duty in 2019. And an estimated 10 African American deaths were reported due to excessive use of force. Although there is evidence of systematic injustice in our judicial system as a whole, this leaves little room for objective reasoning in a criminal investigation when isolated and magnified by the media. This is easily discernible when we examine the video evidence from the George Floyd case in Minneapolis, Minnesota. 

The following information provided by Primeau Forensics is not intended to be used as expert opinions or a complete forensic analysis. The following information provided is intended as a preliminary analysis based on the video evidence obtained from the internet to display the differences between an objective and subjective analysis of video evidence.

The focal point of the public’s investigation was a 0:10 minute clip that surfaced immediately after the incident. Next, a second 7:53 minute video surfaced. This second video included a look into the arresting officer’s use of force on Mr. Floyd’s neck. At this point, we do not see the additional events produced from the CCTV video surveillance system recorded at the intersection of the traffic stop and arrest. Video events captured by the various CCTV surveillance systems have since been released as a video of a video. In other words, we lack the original video evidence to interpret crucial facts. Such facts include the speed of the officers while using force, clarity of the events for enhancement, or the authentication of date and time. 

When assembled in a linear fashion, we see there were video events missing between the time that Mr. Floyd was taken out of the police car and the time that a concerned citizen began recording on a mobile device. This time gap is significant in understanding what took place throughout the course of the criminal investigation. A subsequent subjective statement is that the video events clearly indicate that the force applied to Mr. Floyd’s neck was the cause of death. And therefore, this is evidence that he was murdered. However, it is impossible to interpret the amount of force that was used or the position of the officers through the video evidence. The other officers are positioned behind the police vehicle and the force applied to Mr. Floyd’s neck has no numerical value of intensity. 

A quote provide provided by a judge sums up another important point. A law enforcement officer has seconds to make a decision in a life-threatening situation. Whereas investigators can have days, weeks, and even potentially months to review the video events that we see take an officer a split second. A judge summarizes this notion in the quote from Horton v Pbjecky below:

Although there are additional areas of the investigation that require our attention, we simply do not have the time and resources to explore them all. However, the conclusion remains. The video evidence available from George Floyd’s investigation is insufficient to form opinions on. There is more information than meets the eye throughout the evidence. 

I was recently interviewed by The Associated Press to discuss how body camera footage from George Floyd’s arresting officers could shape the future of the investigation. Read the article in its entirety by following this link. 

In order to combat the creation and use of an inaccurate video witness in the courtroom, Primeau Forensics and Chalogianis Consulting LLC have created two educational blog posts. These posts equip concerned citizens with the most effective methodology for recording law enforcement. Visit videoforensicexpert.com to explore “Your Legal Right to Video Record Police” and “5 Techniques for Video Recording Police“. 

For more information on bias awareness or how to safely and legally video record police, contact the experts at Primeau Forensics.