Accident Investigation Expert Witness On Evidence Collection Part 1
In Event Data Recorders: Proper Evidence Collection in Criminal, Insurance and Tort Liability Investigations, accident investigation expert witness Shawn Gyorke 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 ¹.
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 continuous 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 5/116-4 (a)2.
Shawn Gyorke is a Certified Accident Reconstructionist with education, training and experience in the investigation, reconstruction, and analysis of personal injury and fatal traffic crashes. His company is Crash Data Services, LLC.