Accident Reconstruction Expert Witness On Event Data Recorders Part 1

In Event Data Recorders: Proper Evidence Collection in Criminal, Insurance and Tort Liability Investigations, accident reconstruction expert witness Shawn Gyorke, Crash Data Services, LLC, writes:

Over the last several years, the landscape of traffic accident reconstruction and insurance claims investigations has changed dramatically at the hands of technological advances such as event data recorders (vehicle black box technology). This technology has been challenged on numerous occasions and generally been found to be reliable and admissible under both Frye and Daubert paradigms.

The requirement for law enforcement and private insurers to collect and consider this type of evidence in their investigations has not been clearly defined. Law enforcement, insurance investigators and litigators may need to heighten their efforts in the preservation of this critical evidence A failure to properly memorialize this evidence may ultimately result in evidence spoliation claims by criminal defendants, as well as claims of bad faith by parties involved in civil litigation.

When a law enforcement officer reconstructs a collision with the intent of utilizing the results of the investigation for the furtherance of a criminal prosecution (beyond the scope of a traffic citation or other petty offense) then that officer should preserve any event data recorder (EDR) information. However, this obligation does not normally come at the hands of legislative rule. Only in extreme cases, could law enforcement professionals be statutorily required to preserve EDR data. In Illinois, officials investigating a reckless homicide (reckless use of a vehicle causing the death of another person) are required to ” preserve, subject to a continuos chain of custody, any physical evidence in their possession or control that is reasonably likely to contain forensic evidence” according to statute 725 ILCS Chapter 5/1164 (a)2.

The mandatory terms of this type of legislation, which demands the preservation and production of all forensic evidence, can be reinforced by the explicit terms of a corresponding criminal code, wherein law enforcement can be found criminally culpable for failures in compliance. Under the Illinois statute, it is “unlawful for a law enforcement agency or an agent acting on behalf of the lawenforcement agency to intentionally fail to comply with the provisions of subsection (a) of Section 116.” A violation of this statute constitutes a Class 4 Felony for which an Illinois law enforcement official could be fined up to $25,000 and/or imprisoned for 1 to 3 years.

Many other states, including Alaska, Arkansas and South Carolina, have similarly worded procedural codes requiring the preservation of all forensic evidence on serious crimes. However, the list of states with legislative requirements for the preservation of evidence expands to an overwhelming majority wherein specific biological or DNA evidence could be collected. While the scope of this additional legislation is not discussed within the confines of this article, it could be argued that only on the rarest of occasions, is blood or other biological material not deposited at the scene of a fatal traffic crash.