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The legal system is supposed to arrive at “the truth, the whole truth, and nothing but the truth,” but in practice it is a mix of rules requiring the divulgence of data and those permitting its concealment: the fourth and fifth amendments, attorney/client and work product privileges, medical privacy rules, reporter shield laws, and such. The latest battleground in this area is the use of data stored in Event Data Recorders (EDRs) or “black boxes” on automobiles, where a series of laws, regulations and court decisions are beginning to define how they can and cannot be entered as evidence in both civil and criminal cases.
EDRs are devices about the size of a pack of playing cards which are usually located under a seat or behind the dashboard. Despite their name, “black boxes” are not black, but silver. While the specifics vary from one unit to another, their basic function is to record a variety of data inputs from sensors located throughout the vehicle, registering items such as vehicle speed, engine speed, throttle, acceleration/deceleration, braking, and whether the driver and front passenger are wearing seatbelts. The units record the data on a continuous five-second loop, and stop recording once the air bags are triggered, or shortly thereafter.
Following an accident, investigators can download this data onto a computer for analysis and compare it with other forensic evidence and witness statements as an aid in determining what occurred immediately before a crash. The idea of using such devices is far from new. Airplanes and trains have used more sophisticated versions for decades. For automobiles, however, their use grew out of using on-board computers to improve the safety of air bags. Initial air bag designs sometimes caused deaths rather than preventing them, so computers were installed on cars to analyze the vehicle dynamics and whether the driver was wearing a seatbelt in order to adjust air bag deployment. From there it was an easy step to add a chip to store the data for analysis later. General Motors was the first manufacturer to start using EDRs in the 1990s and many others have since followed suit. According to Kevin Mixer, an analyst for AMR Research in Boston, Mass., nearly two-thirds of all new vehicles sold in this country now have EDRs.
DISCLOSURE AND PRIVACY
As EDRs have become more prevalent, so has their use in the courtroom by prosecutors, plaintiffs and defendants as one more piece of hard evidence to demonstrate what occurred in a crash. The first use in a civil case was when the survivors of pro football player Jerome Brown sued GM stating that the airbag in his Corvette deployed when he hit a pot hole in the road, causing him to lose control of the vehicle and crash into a tree. GM used data from the airbag control unit to show that the airbag deployed upon striking the tree, not earlier. Prosecutors have begun using the data to show criminal negligence, but the data can be just as useful to the defense.
In March, for example, CNET News reported that a truck driver facing vehicular homicide charges in Tennessee was planning to use the black box to show that he was traveling the legal speed limit, not the 80 mph or more alleged by the police. Since it is a new area of evidence, there is little case law governing the use of EDR data, but court decisions have tended to favor its use as long as normal rules regarding obtaining the data and maintaining its chain of custody are followed. In January, for example, acting Nassau County, New York, Supreme Court Justice Alan M. Honor allowed its admission in a case (People v. Slade) following a Frye hearing. He also rejected the defense’s privacy argument holding that the defendant’s act of racing on a public highway was not a private matter. But legislatures are taking steps to keep that data private, or at least under the control of the driver or car owner.
California became the first state to enact a law covering the area. On July 1, 2004, Vehicle Code Section 9951 went into effect which states, in part:
“(c) Data described in subdivision
(b) that is recorded on a recording device may not be downloaded or otherwise retrieved by a person other than the registered owner of the motor vehicle, except under one of the following circumstances:
(1) The registered owner of the motor vehicle consents to the retrieval of the information.
(2) In response to an order of a court having jurisdiction to issue the order.”
Acceptable uses also include anonymous safety and medical research, as well as vehicle diagnostics and repair. Other states with legislation pending include Alaska, Arkansas, Montana, New Hampshire, New York, North Dakota, Texas and Virginia.
OBTAINING THE EVIDENCE
As EDR data finds its way into more cases, attorneys need to be prepared. “The biggest concern now is that the attorney is not aware that it is in a car for a case he is working on,” says James Harris of Harris Technical Services in Port St. Lucie, Fla. “He can invest a great deal of time and money in a case only to find out later he is about to get shot down.” Harris has been doing accident reconstruction for 28 years and has prepared hundreds of reports using EDR data. He also posts information on court decisions, legislation and best practices regarding obtaining EDR information on his website, www.harristechnical.com. He says that use of the data leads to earlier settlements of civil cases: while he has written hundreds of reports and been deposed a few times, none of the cases have gone to court. “Most go away when you hand over the report,” he explains.
Vetronix Corporation, a vehicle diagnostics products firm, sells a module and software to download and analyze EDR data for $2495. But, like other forms of electronic evidence, EDR data should be downloaded and analyzed by an expert to prevent its accidental loss or corruption, and to document the chain of custody. While the data can answer many questions, it is still very limited and doesn’t replace other forms of evidence. “Units will be accurate as to what the sensors are seeing, but may not be accurate to what the car is doing,” Harris cautions. “If the wheels lock up it would say I am going zero miles per hour, but I am still skidding down the road.” So, it still requires comparison with other evidence such as skid marks, witness statements and vehicle damage to obtain a complete picture.