In a previous post entitled “Interpreting Video Images: The Role of the Forensic Video Analyst,” I discussed the important role that a forensic video analyst can play in providing expert interpretive evidence in court. The analyst’s job is to assist attorneys and the court in drawing informed and correct conclusions regarding the video evidence. This expert assistance will serve to maximize the evidential value of the video evidence.
Central to this role is that the proffered expert must actually be a fully trained, competent forensic video analyst. All too often an “expert” is tendered before the court as a “forensic video analyst” when that person has no relevant scientific training, academic background or practical experience. The recent (April 19, 2018) decision of Patel v. City of Madison, Alabama and Parker in the United States District Court for the Northern District of Alabama (Case 5:15-CV-0253-VEH) is illustrative of this problem.
The plaintiff commenced a lawsuit against the City of Madison and Officer Parker, a police officer employed by the City. The plaintiff alleged that he was going for a walk when Officer Parker stopped him without reasonable suspicion or probable cause. The plaintiff further alleged that after being searched for weapons, Officer Parker “restrained [his] arms and slammed [him] face first into the ground.” He alleged that this use of force was unnecessary and excessive and that he suffered significant injuries as a result. The plaintiff asserted federal claims for illegal seizure, unlawful search and excessive force and state claims for illegal search, assault and battery, false arrest, false imprisonment and excessive force.
The plaintiff planned to call two expert witnesses as part of his case. The defendants filed a motion to exclude both experts. This article will focus on the expert who claimed to be a forensic video analyst.
The Federal Rules of Evidence establish a baseline for expert testimony, stated in Rule 702 as follows:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Rule 702 must be read in conjunction with three seminal decisions of the Supreme Court that address expert testimony: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); Gen. Elec. Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997); and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999).
In Daubert, the Supreme Court stated that judges must be the gatekeepers who determine the threshold admissibility of expert evidence by examining whether the proffered evidence is scientifically valid and reliable. Only if threshold admissibility is achieved will the trier of fact receive the evidence.
The burden to establish that a proposed expert witness meets the minimum legal standard set out in Rule 702 is on the party tendering the witness. The court must be satisfied that the proposed expert is qualified to testify on the relevant issues, that the expert’s opinion is sufficiently reliable and that is will assist the trier of fact.
The Plaintiff’s Proposed Expert
Dr. Jeremy R. Cummings was tendered by the plaintiff as an expert in biomechanics and forensic video analysis. Dr. Cummings has a PhD in biomedical engineering and a BS degree in applied and materials science with minors in physics and chemistry. He works in areas of biomedical engineering, accident reconstruction and is the principal consulting scientist of his own company. He advised the court that he has been deposed approximately 100 times and has testified as an expert approximately 50 times.
It was proposed that Dr. Cummings would provide evidence of the calculated velocity of the plaintiff’s head during the “takedown,” “the biomechanical aspects of the takedown,” and assistance to the jury in understanding the in-car camera video evidence of the incident obtained from the police vehicles. He offered a series of opinions in his expert report, including:
- Injury causation;
- The amount of torque required to cause such injuries;
- That the plaintiff was not walking away from the police when Officer Parker swept his legs and “slammed” him to the ground; and
- That the leg sweep caused the plaintiff’s head to accelerate faster than gravity alone would permit.
In arriving at his opinions, Dr. Cummings reviewed police in-car camera videos of the incident, medical records, trial testimony, an acquittal memorandum, an investigative report, and several publications. A central feature of Dr. Cummings’s report was still images taken from the COBAN in-car videos which he used to calculate the velocity of the plaintiff’s head, contrasted with calculations of a fall caused solely by gravity. He stated that he used photogrammetry to calculate head velocity using still images.
The defendants challenged Dr. Cummings’s qualifications and methodology under Federal Rule of Evidence 702, relying upon Daubert and Kumho Tire. Specifically, the defendants challenged Dr. Cummings’s claimed expertise in forensic video analysis. The Court examined the defendants’ expert evidence and the submissions of counsel in deciding on the admissibility of the evidence of Dr. Cummings.
Issue 1 – Is Dr. Cummings Qualified to Offer Opinions Based on Video Evidence?
The defendants sought to rebut Dr. Cummings’s opinions by presenting expert evidence from Grant Fredericks, a highly qualified forensic video analyst. The defendants argued that Dr. Cummings lacked the necessary qualifications to conduct forensic video analysis. Among the points made by Mr. Fredericks were the following:
- Dr. Cummings had limited technical knowledge of the video evidence;
- The COBAN in-car video could not be used for the purpose of calculating head velocity as it was not sufficiently accurate for that purpose; and
- Dr. Cummings was unaware of any peer-reviewed scientific publications which would support the use of compressed video to calculate the velocity of a falling person.
On the issue of qualifications, the Court found that Dr. Cummings was not qualified to calculate head velocity from video images. He lacked the necessary technical knowledge of the video evidence which a true forensic video analyst would possess. Dr. Cummings also admitted that there were no peer-reviewed publications that supported his methodology.
At page 14, the Court stated:
For these reasons, Dr. Cummings is unqualified to do the sort of scientific analysis that he purported to perform in this case. Under these facts, the Court is compelled to exercise its role as “gatekeeper.” See 509 U.S. at 592–93, 113 S. Ct. at 2796. Dr. Cummings may be an expert in some areas, but he is not an expert in the photogrammetry of a video system he does not adequately understand. (Cummings Deposition at 176) (lacking understanding of the video encoding process). His deposition displays a worrisome deficiency in the knowledge expected from an expert. (Cummings Deposition 269, 271) (displaying an inadequate knowledge on issues such as GOP and predictive vs. bidirectional frames); (see also Fredericks Report at 34-37).
The Court noted that in his deposition, Dr. Cummings stated that there was very little forensic video analysis training available and that video analysis “isn’t any different from regular photogrammetry.” He had no forensic video analysis training or certifications. Issue 1 was therefore decided in favor of the defendants.
Issue 2 – Did Dr. Cummings Employ Reliable Methodology?
The defendants claimed that Dr. Cummings’s methodology was unreliable. Among the problems pointed out were the failure to properly consider and account for bidirectional and predictive images, de-interlacing, aspect ratio, and field of view. They further argued that the measurement points that Dr. Cummings placed on the video images were unreliable and that his error rate for the methodology employed was too high.
In response, the plaintiff argued that such issues should go to weight, not admissibility. Prior to Daubert, this argument may have had more traction. In Daubert, the Supreme Court mandated that trial judges undertake the important role of gatekeeper in order to ensure that only validated, reliable science is presented to the trier of fact. It is not appropriate for parties to put unreliable “expert” evidence before the trier of fact in the hopes that it will be accepted. In this case, the Court found that the methodology employed by Dr. Cummings was not reliable and therefore Issue 2 was decided in favor of the defendants.
Issue 3 – Will the Evidence of Dr. Cummings Assist the Jury?
The plaintiff argued that:
Dr. Cummings’s “frame-by-frame analysis” is “not easily duplicated in the jury room” and “lay persons would not ordinarily have the education, training, and experience to fully understand the forces involved in the takedown or the significance of all of the biomechanical components of it.”
The Court ruled that Dr. Cummings’s opinions based on his review of the video evidence are not helpful to the jury. He was in no better position to observe, understand or interpret the contents of the video than the jury. Where proffered expert testimony adds nothing to what the attorneys will argue to the jury, the evidence is not helpful. The Court found that the jury was perfectly capable of watching the video and reaching its own opinion based on that. Issue 3 was therefore decided in favor of the defendants.
The Court therefore excluded the evidence of Dr. Cummings, meaning that the jury would never hear any of his evidence. This ruling was based on his lack of qualifications, unreliable methodology and unhelpfulness. A second witness tendered by the plaintiff before the Court as an expert in use of force was similarly challenged by the defendants and following the required analysis, the Court excluded his evidence as well.
In its concluding comments, the Court stated at p. 37:
“[T]he trial judge’s role as gatekeeper is designed to ensure that the jury, in carrying out its prescribed role, bases its determinations on relevant and reliable evidence, rather than on speculation or otherwise unreliable conjecture.” See Frazier, 387 F.3d 1244, 1272. In performing this role, the Court “must not ‘supplant the adversary system or the role of the jury.’” Id. This is a role that the Court takes very seriously, conscious of the impropriety of overstepping. However, Patel has not made the requisite showings required to admit either Dr. Cummings or Jerry Wiley as an expert in this case. Ultimately, Patel carried the burden on these two witnesses, a burden that he fell well short of meeting.
What are the Implications of this Decision?
The Patel v. City of Madison and Parker decision is illustrative of a more endemic problem in North American civil and criminal litigation. There is an apparent misperception that no expertise is required in order to properly evaluate and interpret video evidence and draw correct conclusions as to what the video evidence shows or does not show. While all people with sight can view video evidence, not everyone can form a correct judgment as to what they are actually seeing. There have been troubling examples of unqualified people giving “expert” evidence in court, or attempting to do so, without having any forensic video training, education or experience. Contrary to what Dr. Cummings claimed, there is robust forensic video analysis training available. The Law Enforcement and Emergency Services Video Association International Inc. (LEVA) is a prime example of such a training program leading to certification.
Typically, people who claim to be forensic video analysts have a production video background without any forensic training. A production video background can be a helpful adjunct to competent and thorough forensic video analysis training but is not by itself sufficient to conduct meaningful and defensible analysis.
A further concerning issue that the Patel decision demonstrates is when qualified experts in one field of expertise decide, with no basis for so deciding, that they are also experts in forensic video analysis. In Patel, it was an expert in biomechanics making critical findings based largely on video evidence with no expertise in forensic video analysis. This problem is much broader than the Patel case. We also see qualified experts in use of force, gait analysis, accident reconstruction, among other fields of expertise, writing expert reports and giving expert testimony containing opinions based on their understanding of video evidence. Without fully understanding such technical topics as:
- Image compression;
- De-interlacing of video images;
- Predictive images;
- Image resolution;
- The impact of frame rate on interpreting action;
- Aspect ratio; and
- Field of view;
an expert in another field of expertise is bound to err when supposedly determining precisely what happened in a video recorded incident, determining gait characteristics, conducting speed determination of vehicles, the movement of individuals, and other findings premised on video interpretation.
This is not a problem without a solution. In fact, the solution is quite simple. Rather than claiming expertise that is not present and reaching conclusions that are not defensible, experts need to understand the limitations of their expertise. No one expects an expert witness to know everything about every possible topic. Expert witnesses have a professional and ethical obligation to stay within their area of expertise and to only provide opinions in keeping with their specific expertise. Therefore, when an expert in a different area of expertise encounters a situation where the analysis and interpretation of video evidence is central to forming opinions and conclusions, a properly qualified and competent forensic video analyst must be consulted. It is not a weakness for an expert to bring in a second expert in a different area of expertise. To the contrary, it shows that the expert wants to provide his/her client with the most informed, scientifically valid and defensible opinion possible. A client is entitled to that and an expert is obliged to provide it.
Clients and attorneys may understandably assume that their “expert” is actually able to do everything the expert claims to be able to do. There are far too many cases of experts exceeding their true expertise and giving opinions that do not withstand scrutiny. This does a disservice to the client, the attorney, the court and the administration of justice. Where there is no expert to assist an attorney in evaluating and responding to opposing expert evidence, there being no contrary view, the court may wrongly conclude that the expert evidence is admissible when in reality it should be excluded. This is not the fault of the court as the court must evaluate the evidence presented. Judges are not technical experts. That is not their role. They assess the case that is presented before them.
When uninformed and misleading (intended or not) expert evidence is presented to the trier of fact, we run the risk of the trier reaching the wrong conclusion and therefore a miscarriage of justice occurs. The goal of all litigation should be to ascertain the truth and then determine what legal consequences flow from that factual assessment. Winning at all costs has no place in a just society. Expert witnesses play an integral role in litigation and in the court system. Experts should always strive to give opinions that are informed, scientifically valid and within their area of expertise and competency.