Friday, July 11, 2014

ARTICLE: Automobile 'Black Box' Information Ruled Admissible in Criminal Case

Automobile 'Black Box' Information Ruled Admissible in Criminal Case By

Daniel E. Cummins, The Legal Intelligencer
July 1, 2014
Republished here with permission by American Law Media. 
Daniel E. Cummins, Esq.
Scranton, PA

Every so often in Pennsylvania jurisprudence, an appellate court criminal law decision comes along that could serve to have a substantial impact on the litigation of Pennsylvania personal injury matters.
For instance, in the case of Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), which is currently on appeal and pending before the Pennsylvania Supreme Court, the Pennsylvania Superior Court treated text messages as "writings" subject to the same requirements for authentication of any other type of writing under Pennsylvania Rule of Evidence 901. Obviously, that issue could have an impact on the admissibility of such evidence, or other forms of social media evidence, in civil litigation matters.

With the increasing inclusion of event data recorders, more commonly known as "black boxes," in automobiles, the time is coming when information gathered by such devices may serve to make or break an auto accident personal injury case.

According to studies, event data recorders in automobiles are capable of recording a wide variety of information, such as whether the brakes were applied, changes in velocity, speed at the time of an impact, whether the cruise control or headlights were on, whether turn signals were activated, the angle of the steering wheel at impact, and whether the seat belt circuits signaled "buckled" or "unbuckled."

Surely, the admission of such objective, scientific and presumably indisputable evidence in support of the crucial facts of any given accident could definitively resolve the many typical factual disputes that make up an automobile accident case.

Novel Auto Accident Evidence
In its recent nonprecedential memorandum decision in the criminal case of Commonwealth v. Safka, 1312 WDA 2012 (Pa.Super. June 2, 2014), the Pennsylvania Superior Court ruled in a case of first impression that information retrieved from a vehicle's black box was admissible in a criminal court proceeding.

The Safka case arose out of charges of vehicular homicide and other moving violations. At trial, the defendant challenged the prosecution's admission of black-box evidence regarding speed. On appeal, the Superior Court ruled that the evidence was indeed admissible in that it was not a type of novel scientific evidence that needed to meet certain stringent expert evidentiary admissibility rules, such as the Frye test.

In his majority opinion, Judge Jack A. Panella noted that the prosecution presented evidence establishing "that the [black-box] technology has existed for almost 40 years, has been adopted by the major automobile manufacturers and has been recognized as an acceptable tool used by accident reconstruction experts to determine a vehicle's speed prior to an impact."

It is also noted that while Judge David N. Wecht dissented on a procedural issue, he otherwise joined in the majority decision that the offered event data recorder information secured from the vehicle at issue did indeed satisfy the Frye test so as to be admissible.

Although the Safka decision was for some reason posted as a nonprecedential decision, it has served to open the door for consideration of such novel evidence. Surely, it is only a matter of time before this rule of admissibility is also tested in the civil litigation context.

The expectation is that courts addressing the issue of the admissibility of this automobile black-box information in the context of the less stringent standards applicable to civil litigation matters would find such evidence to be admissible.

Open Questions

In addition to the test of admissibility, there may also arise questions as to how such black-box information is authenticated. This issue may implicate the ruling and rationale of the Koch case on the authentication of text-message evidence. In other words, the black-box information may be treated similar to documentary evidence being authenticated under Rule 901, titled "Authenticating or Identifying Evidence."

Another open issue may involve the credibility of attacks on the veracity of the information contained in the black box. For example, technological attacks against the device similar to the need for DUI breathalyzer devices to be calibrated or otherwise confirmed to be in proper working order may give rise to a new kind of expert witness who may become common in such cases.

Moreover, once black-box information is found to be admissible in auto accident personal injury matters, the issue becomes whether a party may assert a spoliation defense against an opposing party for failing to preserve such black-box information after a car accident.

If such a spoliation defense is found to be warranted, a court may grant a party an adverse inference jury instruction at trial stating that the jury may infer from the opposing party's failure to preserve the black-box information that such information would have been adverse to that party's position.
It is noted, however, that in at least one case—Parry v. Dyer, Nos. 07-00,445, 06-00,679 (C.P. Lycoming Co. 2007), where the issue of spoliation was raised with respect to the failure of a party to preserve the black-box evidence in a car accident case—the court ruled that neither party would be charged with destruction of the evidence as issues remained as to which party had control over the vehicle following the accident.

Trend Toward Preserving Evidence

Although unfortunately listed as nonprecedential, Safka represents at least a foreshadowing of a trend that can be expected to rise not only in criminal matters but also in civil litigation matters in the form of increasing references to and, eventually, reliance upon information gathered from motor vehicle black boxes relative to the facts of an automobile accident.

As such, it may be wise for litigants on both sides of the bar to consider developing procedures to preserve event data recorder information after an accident, particularly where a party denies that he or she was speeding or driving carelessly at the time of an accident.

Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at  Attorney Cummins focuses his practice on the defense of personal injury matters in the context of motor vehicle, premises liability, and products liability litigation.

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