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In the News:  

Process of accident reconstruction involves interpreting evidence -- and laws of physics

By ANDREW WOLFE Staff Writer,

from www.nashuatelegraph.com

Accidents happen, but accident reconstruction experts prefer not to call them that.

"There were days when everything was called 'accidents,' " said Nashua Police Lt. John Fisher, head of the department's accident reconstruction unit.

"In crash investigations, the term is 'crash' or 'collision.' In most of the cases, there is fault of some sort," Fisher said.

When a collision is severe and fault is unclear, the case may well wind up in court, where a dozen people will have to sort out who's to blame. Chances are good that jurors will hear from at least two accident reconstruction experts, with two differing explanations of what happened.

Having covered two such cases of late, The Telegraph asked various experts and lawyers what such disputes say about the science of accident reconstruction.

"Accident reconstruction is a tool, just like a hammer or a firearm or a computer. Like any tool, it can be used wisely and effectively or it can be used improperly and dangerously," said Richard Lehmann, the lawyer who represented a Nashua man accused of killing a pedestrian near the University of New Hampshire in 2004.

"It's presented to the jury as science. In a courtroom, it takes good lawyering to be a check on it being used dangerously."

Crash reconstruction isn't so much a science as an amalgamation of many different scientific methods and disciplines applied toward the study of motor vehicle collisions.

Experts liken the process of accident reconstruction to putting together a jigsaw puzzle with no edge pieces, no box and no photo to show how it should look when it's finished.

"Accident reconstruction, as a profession, is a blend of both science and 'art,' " wrote Bruce McNally, of McNally & Associates Accident Reconstruction Services of Rochester. "The science of accident reconstruction is grounded in Newtonian physics, and is generally beyond reproach.

"However, the 'art' of accident reconstruction is dependent upon the individual expert's understanding of the laws of physics and his/her interpretation of the physical evidence."

Reconstruction experts typically start by diagramming the scene to show the road and all its features, noting weather, lighting and other such conditions. They put each piece of potential evidence in its place, from the vehicles and occupants to any bits of debris scattered by the crash and traces such as tire or impact marks. Then, they work backward to figure out how things got there, experts say.

Certain aspects of crash investigations are fairly simple, Fisher said. Experts will seldom disagree greatly on their estimates of a vehicle's speed, for instance; interpreting the marks that tires leave on pavement is so fundamental that it rarely leads to dispute.

"Ninety-nine percent of our collisions, I would say there's really no disagreement on how the collision occurred or what the factors were," Fisher said. "More factors in a collision makes for a much more involved investigation and reconstruction."

A car that caroms off several objects, for example, will have a far more complex trajectory and set of forces exerted on people and things inside it, experts say. Crashes involving many vehicles are more complicated, and crashes with no clear roadway evidence -- tire marks or other indicators of what caused a loss of control -- can be more puzzling, too.

Still, no matter how complex, Strafford County Sheriffs Capt. Joseph DiGregorio said, every accident is simply a series of discrete events involving objects, all of which can be gauged and quantified.

"It all boils down to Newtonian physics, when you think about it," said DiGregorio, a certified reconstructionist.

(Fisher and DiGregorio worked on fatal crashes that The Telegraph covered, in which they and opposing experts reached different conclusions. Both cases remain before the courts, and Fisher and DiGregorio declined to discuss those cases specifically.

Drivers and other eyewitnesses are the least reliable source of information, reconstruction experts agree."Witness statements are nice, but I don't read them," said one expert, Carl Lakowicz, of Northpoint Collision Consultants in Gilmanton.

When people see something unfold quickly and dramatically, their brains tend to trick them into thinking they caught all of the action by filling in any gaps to make sense of what they've seen, Fisher noted.

"Humans, by nature, want to make what they don't know turn into a video," Fisher said. "Sometimes, witnesses to car collisions will speak fairly adamantly to something . . . it turns out probably didn't happen."

When witnesses' statements match the physical evidence, on the other hand, that can be powerful proof, Fisher said.

"We're careful. We look at both," he said.

Police investigate all serious collisions, by law, and most accident reconstruction experts are either active-duty or retired police officers, but some also come to the field from engineering backgrounds.

Because so many collisions result in insurance claims and lawsuits, there is a great deal of business for experts who can draw authoritative conclusions about who and what caused a crash.

Police officers learn basic accident investigation during their training with the state's police academy, Fisher said, and those who work in accident reconstruction units go through additional classes.

Police in New Hampshire generally go through courses run by the Institute of Police Technology and Management, which sends instructors to Nashua for its two-week courses. IPTM also offers weeklong courses in areas such as motorcycle crashes and collisions involving pedestrians, Fisher said.

There is an organization that accredits and certifies accident reconstruction experts, the Accreditation Commission for Traffic Accident Reconstruction, but the accreditation process takes time, money and no small amount of brainpower, and it isn't in any way mandatory to have such accreditation in order to work in the field.

You can get a couple of classes," DiGregorio said, "and dive into the accident reconstruction world."

For those reasons, active-duty police are less likely to be certified than those who work in the private sector, experts say.

"ACTAR accreditation wasn't a big deal when I got into it," but it has become more so, Fisher said of accident reconstruction. Two officers on the Nashua Police reconstruction team are currently working toward certification, he said.

"It does take a lot of study time," Fisher said. "You could be an SAE-certified engineer and not pass the ACTAR test."

Applicants can't even take the ACTAR test until they have a fair amount of training and experience. The test includes a written portion, followed by a full day spent diagramming and diagnosing simulated crash scenes, Bartlett said.

"I would say that one-day tests like this are the best we've got for distinguishing somebody who has minimal competence versus sub-minimal competence," Bartlett said, adding later, "The ACTAR test is a good effort to separate wheat from chaff."

However, while the test can weed out incompetence and single out top performers, Bartlett said, that leaves a lot of room for variety among the masses of reconstruction experts, certified and not. Bartlett said he has seen certified experts reach conclusions he found "inexplicable," and also encountered uncertified experts "who are quite competent."

"I think it's important to recognize that egalitarianism is inappropriate here: Not all 'experts' are equal," Bartlett wrote. "Training, experience, understanding of underlying principles and even ethics can come into play, and equal weight should not be given to every opinion by everyone on every topic."

DiGregorio, one of the few active-duty law enforcement officers in the state who is also ACTAR certified (Hudson Police Lt. David Bianchi is another), said he believes certification carries some clout.

Lawyers who work with such evidence in the courtroom disagree on the importance of an expert's resume. Crash reconstruction is well established and widely accepted as science, despite the lack of mandatory standards and certifications, lawyers said. Judges rarely refuse to accept experienced investigators as experts.

"Accreditation in and of itself is not the answer," Manchester attorney Paul McDonough said. "I think that jurors look at the quality of the testimony rather than the letters following the person's name.

"It's not unusual to have two experts from opposite sides testify to opposite conclusions based on the same set of facts," McDonough said, and jurors simply have to decide for themselves which is right.

"I think jurors have to perform that same function whether it's two experts testifying or two eyewitnesses testifying," he said.

Attorney Gordon Rehnborg, of Manchester, agreed that disagreements are common, but added that in his view, "The expert's total credential resume, their CV (curriculum vitae), is very important."

it's their job to enforce society's laws, police have to decide relatively early in their investigation whether they have evidence to justify arresting someone or to require a blood sample, Fisher said. If there is evidence of intoxication, however, police can always charge a driver with DWI and continue to review the crash, he noted.

Some experts in the private sector suggest police can be swayed by the need to figure things out fast and the human tendency to want to hold someone accountable when something awful happens.

"You want to do the right thing . . . and you lose objectivity," said Lakowicz, himself a retired Concord police officer.

"If a reconstructionist finds an answer that's convenient, they may simply stop digging. This is a trap that a lot of officers fall into. . . . They come to a conclusion within a half an hour and they decide, 'This is what happened.'

"We go into it kind of blindly, not having the energy and the anger and the compassion that police officers have when they show up at these terrible accidents."

Fisher and DiGregorio dispute the idea that police are inherently biased toward finding fault, although they say all experts agree with the need for objectivity. Police get paid for their time all the same, regardless of whether or whom they arrest, he notes.

"There are no bonus points for a yes or no," Fisher said.

Although police are responsible for enforcing the laws, he said, "It can't create bias. If it does, you're not doing your job.

"We've got to look into everything, and there's just no easy way out of it," Fisher said. "You can't, and we don't, jump to conclusions about these things."

Fisher recalls investigating a collision on Lake Street. A woman in the neighborhood had been broadsided by another vehicle, the driver of which was intoxicated, as witnesses at the scene clamored to point out to police.

The thing was, Fisher recalls, the woman had run a stop sign. The other driver was charged with DWI, but the crash wasn't his fault, Fisher found.

If anything, DiGregorio said, police reconstructionists are biased toward the accused. Once they estimate the probable speed of a vehicle, for instance, the expert will assume a speed at the low end of the range to give a person the benefit of doubt.

"As a police investigator, it's up to me to interpret the evidence in the best light for a defendant," DiGregorio said. "No reconstructionist wants to falsely accuse anybody of anything.

"\When two experts look at the same crash and disagree on what happened or who caused it, experts say, either there isn't enough evidence for anyone to tell what happened or one of them is wrong.

"It is true that an investigator can sometimes read more into the evidence than it can support, or may fail to recognize what it's telling us, but the science is solid when there's relevant evidence," wrote Wade Bartlett of Rochester, a mechanical engineer and ACTAR-certified specialist in motorcycle collisions. "It's up to the investigator to find it, document it and interpret it correctly without bias.

"In my experience, if experts from both 'sides' get all the same information, and the information set is sufficient to draw conclusions, the experts agree to a much greater extent than they disagree. Evidence doesn't lie, but there are some cases where there is insufficient information to come to a conclusion that's confidently 'beyond a reasonable doubt' (criminal matters) or even 'more likely than not' (civil matters)."

Knowing what can -- and can't -- be known is a big part of the job, McNally wrote.

"The limitations of any given reconstruction are based upon how much physical evidence is available in a case, how well that evidence was documented and how well that evidence is interpreted by the expert," McNally wrote. "It is up to the individual expert to understand what the limitations are in a given incident, and not exceed those limitations."

Of course, getting one case wrong doesn't mean an expert is incompetent.

DiGregorio noted, "You can be the best surgeon in the world and make a wrong diagnosis."

In lawsuits and some other types of hearings, judges and jurors decide what happened and who is to blame based on "a preponderance of the evidence," or more likely than not.

In criminal cases, cases must be proven "beyond reasonable doubt," so a tie goes to the defendant.

"If you have two theories and they are both plausible, there's got to be a not guilty; otherwise, you risk convicting innocent people," Lehmann notes.

"There's a very strong impulse to want to hold somebody responsible when something bad happens," Lehmann said. However, he added, "There's such a thing as accidents." 

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As Self-Driving Cars Near, Washington Plays Catch-Up

The Shift

By KEVIN ROOSE JULY 21, 2017 The New York Times

Self-driving cars are zooming at breakneck speed toward America’s roadways, and Washington is finally reaching for its seatbelt. For years, the race to create fully autonomous vehicles went mostly unnoticed by federal lawmakers, who tended to speak of self-driving cars (if they spoke of them at all) as something out of “The Jetsons.” It was an odd blind spot, given how close companies in Silicon Valley and Detroit were to creating mass-market autonomous vehicles, and how many important industries — taxi driving, long-haul trucking and shipping among them — stood to be drastically transformed as a result. But now, lawmakers are taking cautious steps toward the driverless future. On Wednesday, a House Energy and Commerce subcommittee voted to advance a bill that would speed up the development of self-driving cars and establish a federal framework for their regulation. The bill, known as the Highly Automated Vehicle Testing and Deployment Act of 2017, is the first major federal effort to regulate autonomous vehicles, and would give the National Highway Traffic Safety Administration broad oversight of the self-driving car industry. A full committee vote on the measure is expected next week, and the bill could go before the entire House this fall. The Senate is also playing catch-up. Last month, a bipartisan group of senators announced that it was working toward its own version of an autonomous vehicle bill, which would prioritize “safety, fixing outdated rules, and clarifying the role of federal and state governments” in regulating self-driving cars. Senator John Thune, Republican of South Dakota, is working on the bill with two Democratic senators, Gary Peters of Michigan and Bill Nelson of Florida, and said he expected to release a draft of proposed rules this month. It’s rare to find an issue with true bipartisan consensus in Washington. But self-driving cars have been praised by members of both parties, who see the technology as a way to spur job creation while preventing many of the roughly 40,000 motor vehicle deaths that occur on American roads each year. According to the National Highway Traffic Safety Administration, 94 percent of traffic deaths involve human error, including distracted driving and driving while intoxicated. Self-driving cars would obviate those problems, even if they would introduce new fears. (One well-publicized accident, a fatal 2016 crash involving a Tesla that was set to “autopilot” mode by its owner, sparked worries among regulators, who later concluded that Tesla’s driver-assistance system was not to blame for the accident.) Representative Debbie Dingell, a Michigan Democrat who supports the House’s self-driving car bill, told me that lawmakers had been prompted to act by concerns about economic competitiveness, in addition to the promise of safer roads. “These vehicles are going to be developed, and I want to make sure we’re developing them in this country, not China, India or the European Union,” said Ms. Dingell, a former auto lobbyist and General Motors executive whose district includes the headquarters of Ford Motor Company. “The challenge for this country, period, is how we stay at the forefront of innovation and technology.” While not yet commercially available, self-driving cars are being tested in several states, and semi-automated cars capable of piloting themselves on the highway, such as Tesla’s Model S, are already on the roads. Some experts predict it could be a decade or longer until cars are capable of full autonomy in every driving condition, but several major auto manufacturers, including Ford and Toyota, say they’re on track to release cars capable of limited autonomy within the next four years. In the absence of federal guidance, many states have started developing their own laws for self-driving cars. California’s Department of Motor Vehicles recently released a series of proposed rules, and the state is beginning to modify its roads to make them easier for the sensors in autonomous vehicles to analyze. Michigan passed a package of bills last year that made it easier for auto manufacturers to experiment with self-driving cars on public roads. And Florida passed a law that legalized truly self-driving cars, with no human operator behind the wheel. While engineers race to bring self-driving cars to market, Silicon Valley companies and Detroit automakers have been lobbying Congress for federal laws that would replace many of the existing state-by-state regulations and allow them to experiment more freely with new autonomous systems. Ford, Google, Uber, Lyft and Volvo have teamed up to form the Self-Driving Coalition for Safer Streets, an industry group that has pressed for a clear set of national standards. Regulating self-driving cars is a tricky balancing act. Crack down too hard, and you risk stalling the development of a potentially lifesaving technology. Go easy, and you risk letting unsafe vehicles onto public roads before they’re adequately tested. There are cybersecurity risks to address, too, since autonomous vehicles will be connected wirelessly to the internet and could be susceptible to hacking. The House bill would require manufacturers of new autonomous systems to submit security plans for their self-driving cars, as well as meet basic safety standards. Many states have opted for a permissive stance on self-driving cars, hoping to land a piece of an emerging multibillion-dollar industry. Elon Musk, the chief executive of Tesla, recently told a National Governors Association meeting that within 10 years he expected “almost all” new cars produced in the United States would be fully autonomous. Making people comfortable with robotic chauffeurs, of course, is another matter. According to a poll conducted this year by AAA, 78 percent of drivers in the United States are afraid to ride in a self-driving car, and 54 percent would feel less safe sharing the road with one. “People want to feel like they’re in control of their destiny,” said Elliot Katz, a lawyer at DLA Piper who works on self-driving car issues. Mr. Katz said federal regulation could help convince consumers that autonomous vehicles are safe. “We need rules and regulations so that the driving public knows this isn’t just the Wild West,” he said. Right now, the benefits of self-driving cars are clear and concrete — fewer traffic deaths, easier commutes, the ability to safely use your phone while you drive — while the costs remain largely theoretical. But experts have warned that the self-driving car revolution could usher in sweeping economic changes, including the displacement of millions of workers. Roughly 1.7 million Americans drive long-haul trucks for a living, and another 1.7 million people drive taxis, buses and other commercial vehicles. When autonomous vehicles render many of those jobs obsolete, politicians will have a much bigger set of problems to contend with. “Governments have largely focused on the legality of automated driving,” said Bryant Walker Smith, an assistant professor at the University of South Carolina School of Law who focuses on autonomous driving. “They should also pay attention to the broader challenges and opportunities of automated driving — what it means for our lives, our governments, our land use, our cities, our social services, our jobs and how we live.” The politics of autonomous driving will almost certainly become messier as self-driving cars edge closer to widespread use. There will be safety and security worries, intra-industry squabbles and backlash from driver unions concerned about job loss. The self-driving car could become a politically polarizing symbol, with some Americans cheering it as a technological miracle and others viewing it as a nanny state intrusion into individual liberty. It’s not hard to imagine that one day a politician might run for office on a “Make America Drive Again” platform.  But for now, as self-driving cars peek over the horizon and gridlock seizes Capitol Hill, lawmakers just seem happy to have found something — anything — to agree on. “It’s sexy, and that carries issues a long way,” Mr. Smith said of the self-driving car movement. “A hot, potentially even bipartisan subject can be more appealing than the mundane.”

A version of this article appears in print on July 22, 2017, on Page B1 of the New York edition with the headline: Cars of Future? Lawmakers (Gasp!) Agree. © 2017 The New York Times Company

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US road safety: Deaths lowest in more than 60 years. How we got there.

By Daniel B. Wood, Christian Science Monitor, December 10, 2012

In 2011 the number of fatalities per vehicle miles traveled was the lowest ever, the Department of Transportation said. Technology and education are credited with the improved US road safety.

Improved technologies and education made America’s roads safer in 2011 than they’d been in more than 60 years, especially for occupants of passenger vehicles, the US Department of Transportation (DOT) reported Monday, and the number of fatalities per vehicle miles traveled was at its lowest level ever.

But DOT’s National Highway Traffic Safety Administration (NHTSA) cautioned that the good news was no reason for American drivers to lower their guard, saying fatalities were still on the rise in some categories, for example for cyclists of all stripes – pedal and motor – and as a result of distracted drivers.

According to NHTSA, traffic fatalities fell to 32,367 in 2011, a 1.9 percent drop over 2010 and the lowest since 1949.  Experts say the reasons for the decline are better seatbelt and airbag technologies, improved driver behaviors on the highways, and more safely designed cars. There has also been more emphasis in recent years on formal official programs to improve safety.

“We’re confident that NHTSA’s 5-Star Safety Ratings Program and nationwide collaborations like ‘Click It or Ticket’ and ‘Drive Sober or Get Pulled Over’ have played a key role in making our roads safer,” said NHTSA Administrator David Strickland.  But they are being careful not to overstate the case. There is still much improvement to be made.

Here are their findings released Monday.

• Fatalities declined by 4.6 percent for occupants of passenger cars and light trucks (including SUVs, minivans and pickups).

• Deaths in crashes involving drunk drivers dropped 2.5 percent in 2011, taking 9,878 lives compared with 10,136 in 2010.

• While Americans drove fewer miles in 2011 than in 2010, the nearly two percent drop in roadway deaths significantly outpaced the corresponding 1.2 percent decrease in vehicle miles traveled. According to updated Fatality Analysis Reporting System (FARS) information released Monday, 2011 saw the lowest fatality rate ever recorded, with 1.10 deaths per 100 million vehicle miles traveled, down from 1.11 deaths per 100 million vehicle miles traveled in 2010.

• Fatalities increased for the occupants of large trucks (20 percent), pedal cyclists (8.7 percent), pedestrians (3.0 percent), and motorcycle riders (2.1 percent). NHTSA said it is working with the Federal Motor Carrier Safety Administration to gather more detailed information on the large truck occupant crashes to better understand the increase in fatalities in 2011.

 • The number of people killed in distraction-affected crashes rose to 3,331 in 2011 from 3,267 in 2010, an increase of 1.9 percent. NHTSA believes this increase can be attributed in part to increased awareness and reporting of the phenomenon.

“Even as we celebrate the progress we’ve made in recent years, we must remain focused on addressing the safety issues that are continuing to claim more than 30,000 lives each year,” Mr. Strickland said.

While experts are quick to admonish that citizens should not make too much of the figures and therefore let down their guard – which is the standard cycle for statistics like these – others are being careful to give credit where credit is due.

“The record low fatalities in 2011 are a reflection of the strong progress that's been made in traffic safety,” says Sharon Berlin, a senior research analyst in traffic safety at the American Automobile Association.

“However, our work is far from over,” Ms. Berlin adds. “Motor vehicle crashes remain a public health threat, and we have an obligation to continue investing in making drivers, vehicles, and our roads more safe.”

US Transportation Secretary Ray LaHood expressed similar sentiments, saying seat belt use continues to be an issue.

“The latest numbers show how the tireless work of our safety agencies and partners, coupled with significant advances in technology and continued public education, can really make a difference on our roadways,” he said.

“As we look to the future, it will be more important than ever to build on this progress by continuing to tackle head-on issues like seat belt use, drunk driving, and driver distraction.

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(CNN) -- A Massachusetts teen was convicted Wednesday of homicide as a result of texting while driving and will serve one year in prison.

In a landmark case for the state, Aaron Deveau, 18, was found guilty on charges of vehicular homicide, texting while driving and negligent operation of a motor vehicle in a 2011 crash that fatally injured Donald Bowley, 55, of Danville, New Hampshire, and seriously injured a passenger in Bowley's car.

"I made a mistake," Deveau said Wednesday after his mother told the district court in Haverhill, Massachusetts he would not intentionally hurt anyone. "If I could take it back, I would take it back."

Judge Stephen Abany sentenced the teen to two and a half years on the vehicular homicide charge and two years on the texting and causing injury charge. He will serve one year concurrently on both charges and the balance of both charges is suspended for five years. His license will be suspended for 15 years.

"There are no winners today," Essex County District Attorney Jonathan Blodgett said in a statement. "A beloved grandfather is dead. A once active woman can no longer work and is still racked with pain from her injuries and a young man is going to jail. When we get behind the wheel of a car, we are obligated to drive with care. ... As we saw in this case, in a split second, many lives are forever changed."

The risks of texting while driving

In the February 20, 2011, accident, prosecutors said, Deveau's car crossed the center line on a street in Haverhill, which is in northeast Massachusetts near New Hampshire, and hit the vehicle Bowley was driving.

Bowley's girlfriend, Luz Roman, 59, was in his car with him and suffered serious injuries.

Haverhill Detective Thomas Howell testified the impact left the two "almost folded into the floorboards."

Bowley died March 10, 2011, after he was taken off life support.

"My brother received such head trauma that ... there was no hope for him," Bowley's sister, Donna Burleigh, said in court.

Roman talked about the incident's continued impact.

"Loss of sleeping, loss of my boyfriend. So many losses, I can't tell you how many," she told the judge.

Essex Assistant District Attorney Ashlee Logan argued that Deveau may have erased some of his texts or lied to police after the accident about when he was texting.

Deveau said after the crash in a taped interview with police, which was played in court, "I was tired. I was distracted. When I looked away for one quick second, I came too close to her and I was trying to hit my brakes."

His defense lawyer said authorities set out from the beginning to link texting to the crash, a cause-and-effect relationship that he contends is not valid.

Some 38 states ban text messaging for all drivers, while 31 prohibit all cell phone use by "novice drivers," according to the Governor's Highway Safety Association.

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from The New York Times

February 9, 2012

  Front-Center Air Bags Make Debut in General Motors Crossovers 

 By Cheryl Jensen

General Motors Simulation of the front-center air bag in the 2013 GMC Acadia.

Digital evidence becoming central in criminal cases

By Mike Brunker
msnbc.com

November 11, 2011

If you are unfortunate enough to land in court after a serious automobile accident, the star witness against you may not be an eyewitness or even a human being. It could be your car.

Today’s high-tech automobiles increasingly rely on computers to maximize performance and monitor operating systems. But while the under-the-hood computers are doing that, they may also be recording data about your driving.

Typically, that information is collected by a vehicle’s “event data recorder,” or EDR, a computer module that is often compared to the “black box” on a commercial airliner. Among other things, EDRs are capable of recording a number of driver behaviors, including brake application, steering, speed at time of impact in the event of a crash and whether the driver and passengers were using seatbelts.

Such information is primarily intended to help improve federal safety standards, but increasingly it is being used in court cases in which vehicles were involved in a serious accident or the commission of a crime.

For example, electronic evidence played a key role in a criminal case at the center of Friday night’s “Dateline NBC” (10 p.m. / 9 p.m. Central). The case involves a heartbroken Montana teenager, a dangerous stretch of highway and some ominous text messages.

A deadly crash on a notorious stretch of highway forever changes the lives of two Montana families. Dateline NBC's Keith Morrison reports.

“Essentially, vehicles nowadays are a huge conglomeration of computer chips and modules,” said Mike McCullough, a retired Phoenix police detective who investigated serious crashes for many years. “And the electronic data they collect is going to become more and more common as evidence down the road.”

Among the drivers of that anticipated growth are new National Highway Traffic Safety Administration regulations that take effect next year.

The rules do not require EDRs – already in use in more than 85 percent of U.S. vehicles – but they mandate that in cars that have them, the devices must capture and preserve at least 15 types of crash data, including pre-crash speed, engine throttle, changes in forward velocity and airbag deployment times. And one day, the agency noted in its final rule, they may even play a role in getting emergency medical service quickly dispatched to the scene of an accident by automatically sending a 911 alert.

'Staggering' amount of information
Even now, however, such information could be cross-checked with information from devices like cellphones and GPS units to build what could be an air-tight court case.

“Now you’re in a situation where, if someone has the time and expertise, they can say you drove from here to there at this speed, you parked at Whole Foods, here’s what you bought, then you got back in your car and drove here and made a call to this number,” said Dean Gonsowski, eDiscovery counsel with Clearwell, which is part of the security firm Symantec. “... It’s staggering how much information can be collected.”

“You want to have the equipment examined to determine the reliability, both from a chronological and content standpoint,” he said. “And there are times when that evidence is of an exculpatory nature, so you want to make sure that you gain access to it – whether it’s a computer or an iPhone or whatever – and that you preserve that evidence immediately.”Drew Findling, an Atlanta attorney and chairman of the National Association of Criminal Defense Lawyers’ Forensic  Disciplines Committee, notes that e-evidence might just as easily create an unshakable alibi, which is why he routinely hires experts to examine equipment and data.

Courts already are wrestling with the challenges presented in general by electronic evidence, which has become almost ubiquitous in both civil and criminal cases.

“Electronic evidence is admitted in almost every trial in America, whether it’s a phone bill or electric bill or a document that’s created, stored or transmitted electronically,” said Mark D. Rasch, director of cybersecurity and privacy consulting at the technology services company CSC and former head of the Justice Department’s computer crime unit. “… When you think about it, even a crime scene photograph is electronic evidence now.”

The increasing use of digital evidence has spawned a new legal specialty – e-discovery – and has added layers of complexity that didn’t exist when cases were won or lost on paper documents. In some cases – particularly those involving corporations – the amount of digital data that must be retrieved and sorted through prior to trial is immense.

“State crime labs are adding high-tech pieces, but if you think it’s hard to examine urine and blood samples, try working through a zip drive, a hard drive or an iPhone,” said Findling, the defense attorney.

Evidentiary laws also have failed to keep pace with rapidly changing technology, said Rasch.

 “We changed the discovery laws eight or 10 years ago, but we need to change a bunch of different laws, including electronic privacy laws,” he said. “And we need to continue to tweak the laws on chain of custody, validation and verification, authentication, corroboration and the scope and extent of discovery.”

While lawmakers struggle to catch up, judges and courts are taking wildly varying positions on the reliability and admissibility of digital evidence.

“Right now it depends on the state, depends on the judge,” said McCullough, president of the Southwestern Association of Technical Accident Investigators. “A lot of information has to be established to show that it’s reliable.”

Gonsowski said much of the variation is attributable to the differing technology comfort levels among judges, prosecutors and defense counsels.

“You see some inconsistent decisions because a case may require that the litigants and the judge all understand how Facebook works, for example,” he said. “…  So there’s a lot of sort of groping around – not quite the blind leading the blind, but folks wrestling with these new technologies as they apply to traditional legal concepts.”

Stricter rules for digital evidence
Experts have different views of those to-and-fro battles.

Rasch, the former Justice Department official, said that courts often impose higher requirements on digital evidence than they do with physical documents, such as letters.

“We demand a (greater) degree of certitude for certain kinds of electronic evidence than is demanded in the physical world. … A lot of it has to do with the general unease we have with electronic evidence. We’re not sure it’s reliable, that it hasn’t been tampered with.”

But others worry that current laws – and the judges who enforce them – have failed to adequately consider that electronic evidence is “inherently malleable or ephemeral.”

Among them is Steven Teppler, a partner in the Chicago law firm Edelson McGuire and co-chair of the American Bar Association’s Digital Evidence Committee. He is part of what he describes as a growing movement within the legal profession to have digital evidence deemed “hearsay,” and thus generally inadmissible in legal proceedings unless its reliability can be demonstrated.

“Unless we change the rules of evidence to require a higher level of reliability, you have this built in problem where people say, ‘It comes out of the computer, therefore it must be reliable,’” he said.

But that doesn’t account for the fact that programmers create the software that instructs those machines to generate data, Teppler said.

“Computers will repetitively create bad information if they are programmed incorrectly,” he said. “Just because a computer generates it doesn’t mean it’s true.”

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April 12, 2011

From the New York Times

' “We take care of a lot of people injured in car accidents, and distracted driving is a substantial contributor to these accidents,” Dr. Daniel Berry, president of the academy, said in an interview. “If we could get rid of this part of our practice, it would be a great service to the people we care for.”
Orthopedists would do very well, thank you, without the business generated by the 307,369 crashes that have occurred so far this year, according to estimates from the National Safety Council, involving drivers talking on cellphones or texting.' 

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March 19, 2011, Cortez, Colorado

from Cortez Journal.com, by Reid Wright

Riffey found not guilty    

"Christopher Gayner, an accident reconstructionist testifying for the defense, argued Riffey's injuries indicate he was hurt by the seat belt on the passenger's side - a point contested in testimony from an emergency room doctor, forensic pathologist and a crash scene reconstructionist with the Colorado State Patrol".

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Articles:

"Legislation regulating transportation safety is saving lives and reducing serious injuries in motor vehicle collisions year after year.  In 1966 the U.S. Congress passed the Highway Safety Act, which led to the formation of the National Highway Traffic Safety Administration (NHTSA).  The 40^th anniversaries of these events recently passed unbeknownst to most people, yet the ongoing societal benefits give cause for reflection and recognition of the thousands of lives saved and .... "  (MORE ... Read Entire Article).

Source: Christopher Gayner, MSME, San Luis Obispo County Bar Bulletin

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