INSIGHT: Like Viral Videos, Technology Can Help Prove Financial Crimes

In “street crimes” cases—murders, assaults, carjackings, and the like—a video recording of what happened can make all the difference.

In recent weeks we’ve seen two high-profile incidents where video evidence has played and will continue to play a critical role. How these cases developed are instructive in terms of the importance of where a crime occurs, but they also raise an interesting question about the emerging importance of high-tech evidence for other kinds of criminal activity, including financial crimes, in an age of ever-increasing technological capacity.

On Feb. 23 in Georgia, Travis McMichael shot and killed Ahmaud Arbery as Arbery jogged, unarmed, down a residential street in a rural neighborhood. McMichael and his father, purportedly believing Arbery was implicated in nearby burglaries, had armed themselves and chased Arbery down, then started a confrontation that ended with Arbery dead on the ground. A third man followed in his own vehicle, and recorded the confrontation and Arbery’s killing.

Despite the existence of the recording, which was apparently possessed by investigating authorities shortly after the incident but was not made public until many weeks later, the case bounced around different district attorneys offices for the next two months. Finally—and only after the video became public—charges were filed in May against the McMichaels and the third man with the camera, William Bryan, for Arbery’s killing and related offenses.

The Killing of George Floyd

Then, on May 25 in Minneapolis, a man named George Floyd was killed during an arrest by police officer Derek Chauvin, who placed a knee on the handcuffed Floyd’s neck until Floyd lost consciousness, even though Floyd repeatedly said he could not breathe, and multiple bystanders pleaded with the officers on the scene to stop.

In contrast to the Arbery case, the Floyd killing happened in an urban setting in front of numerous bystanders. The bystander witnesses, not surprisingly, were recording the incident on their cellphones, and those recordings immediately became public. Moreover, additional recordings have and will continue to become public, including surveillance videos from nearby businesses and government surveillance sources like police body cameras and possibly other devices.

Because of the prompt release of video of Floyd’s death, reaction was instantaneous: Protests erupted, spreading to cities around the nation, the four officers involved were quickly fired, and by the end of the week, Officer Chauvin had been arrested and charged with third degree murder.

It is clear that recordings like those of the Arbery and Floyd killings are game-changers for those cases. But what if a crime isn’t the kind that can be deemed open and shut from a short video? Are fraudsters and other white collar defendants in the same boat as the McMichaels possibly thought they were on their quiet, rural Georgia road: In a position to assume there will be no recordings of their misdeeds absent the bad luck of a co-conspirator recording what happened?

Other Useful Tools

Nope. While it’s virtually unheard of in a white collar case to find a recording of the defendant actually committing the crime—and what a long and boring video that would be—law enforcement officials have many tools at their disposal to prove financial crimes in the same incontrovertible way as the Arbery and Floyd videos seem to do. As trial lawyers say, “It’s hard to cross examine a document.” And technological advances in recent years have made those tools more effective than ever before.

Some of these tools exist pursuant to statute. For example, the Bank Secrecy Law requires banks to file Suspicious Activity Reports and Currency Transaction Reports, notifying law enforcement of possible criminal activity, and the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) assists police and prosecutors around the nation in sorting through financial transactions to identify and build cases in a wide variety of financial crimes areas, including not only traditional fraud but money laundering, broker dealer cases, tax crimes, and many more.

Other tools come into play once a target is identified, and help authorities gather evidence to use at trial. These can include tools applicable to all types of criminal activity, like those related to gathering communications-related evidence such as phone records, wiretaps, pen registers, and trap-and-trace devices, devices that track a cellphone’s location by using its communications with cellphone towers, GPS tracking systems, and the like.

Also becoming more prevalent, albeit also more controversial, is facial recognition technology, which compares photographs or video surveillance with databases of millions of faces to try to identify the person of interest. (Note that many jurisdictions have or are considering legislation to outlaw the use of such technology.)

Finally, in all kinds of investigations, digital evidence—evidence found on or transmitted by or to computers and other electronic devices—can be critical, and investigators have become expert in using it. One huge wrinkle with this kind of evidence, of course, is that to use it, authorities must be able to extract it; encryption software for computers available for purchase by end users, and the device encryption that some cellphone manufacturers are utilizing have made this more of a challenge for law enforcement.

‘Follow the Money’

More specific to financial frauds, however, are those tools and systems that help authorities “follow the money” of a particular person, group, or entity, allowing authorities to draw links between criminals and their networks and thereby broaden their investigations, and to find criminal assets that might be used as evidence or be seized.

Investigators look at numeric-based documents like bank statements, utility bills, receipts, insurance documents, and much more. They review non-financial records like emails, Word documents, and pdfs. And while this information previously was reviewed piecemeal, using agents with particular expertise where necessary, the invention of software programs that sort and organize large volumes of data to find connections and search out patterns has made this work much more efficient and effective.

Such systems, originally created by and for the private sector, are now widely used by law enforcement authorities to investigate fraud and other white collar offenses.

This kind of evidence—like a video recording of a violent crime—is incredibly powerful when it is properly explained to a jury. Bank records and other similar pieces of evidence can’t lie, they have no bias, and there can be no perception issues with their identification of the defendant as the responsible party.

As a result, with the power behind the technological advances in the field of organizational and search software for large data sets, authorities have a stronger hand than ever before in investigating financial crimes, notwithstanding the lack of viral videos.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Jennifer Rodgers is a lecturer-in-law at Columbia Law School where she teaches courses in the public corruption field and the former executive director of the Center for the Advancement of Public Integrity at CLS. She is also a CNN legal analyst and a former federal prosecutor.

Joel Cohen is senior counsel at Stroock & Stroock & Lavan LLP. Previously, he served as a prosecutor at the New York State Special Prosecutor’s Office and at the Department of Justice’s Organized Crime & Racketeering Section. He is an adjunct professor of law at both Fordham and Cardozo law schools, teaching “How Judges Decide,” a class based on his book, “Blindfolds Off: Judges on How They Decide” (ABA 2014). He is also the author of the recently published “I Swear: The Meaning of an Oath” (Vandeplas Publishing, 2019).