A. INTRODUCTION

In North Carolina, there is an interesting situation involving the admissibility of expert opinion evidence of speed. The first modern case to discuss the issue is the Hicks case discussed below.

Hicks held that neither lay nor expert witnesses may give opinion evidence of speed a vehicle traveled at the time of an accident unless that witness visually observed the moving vehicle at the time of the accident. In addition, no published case in North Carolina has held that an accident reconstructionist can testify, over objection, about the speed of a vehicle. Yet accident reconstruction engineers frequently testify, over objection, in North Carolina state courts about the speed a vehicle traveled at the time of an accident. So, the Hicks decision, read alone, does not provide the full context of the law of admissibility of opinion evidence on speed.

The proper context is supplied by reading the entire body of cases dealing with reconstructionist testimony and by gaining familiarity with the practice in the modern trial courts.

B. DISCUSSION

1. Controlling Cases in North Carolina

(a) Hicks v. Reavis Any argument for blanket prohibition of speed testimony from an accident reconstruction expert will undoubtedly rely on Hicks v. Reavis, 78 N.C.App. 315, 337 S.E.2d 121 (1985). The court of appeals held that the trial court properly refused to allow a highway patrolman to give his opinion of speed.

In Hicks, the trial court found that the highway patrolman was an expert in “accident investigation.” The patrolman “investigated the accident and found skid marks measuring eighty-nine feet left by defendants’ Camaro. Both cars were extensively damaged. The steel frame of the left side of the Cutlass was pushed in twenty-two inches.”

The trial court excluded “opinion testimony from the investigating officer that the defendants’ car was travelling 85 miles per hour at the time of impact, with that opinion being based solely on his investigation after the accident occurred.”

The Court of Appeals found no error in the exclusion of the testimony. It concluded its discussion of that issue by stating, “. . . with respect to the speed of a vehicle, the opinion of a lay or expert witness will not be admitted where he did not observe the accident, but bases his opinion on the physical evidence at the scene. North Carolina Rules of Evidence, Rule 702 does not change the rule of law.” It is significant that Hicks involved a patrolman’s opinion based on his own investigation of the scene. Contrast this to the expert witness with an engineering background with special training and experience in the science of accident reconstruction. (Note: The Fourth Circuit has allowed a patrolman to testify about speed based on the patrolman’s analysis of skid marks. Sparks v. Gilley Trucking Co., Inc., 992 F.2d 50 (4th Cir. 1993). (b) State v. Purdie State v. Purdie, 93 N.C.App. 269, 377 S.E.2d 789 (1989), explicitly rejected the reasoning of the Hicks panel and allowed expert reconstruction testimony. But speed was not at issue in Purdie. Hicks involved only speed. So, technically the two decisions are not in conflict. (The decisions were separated by a period of over three years. My speculation is that the Purdie decision represents a natural progression of jurisprudential acceptance of reconstruction science instead of a living conflict between appellate panels. Judge Becton, one of today’s presenters, wrote the Purdie opinion, and maybe we can get some historical perspective from him.)

Purdie involved a DWI-manslaughter appeal. At trial, an accident reconstruction expert testified for the State. The expert was a civil engineer with extensive experience in the investigation and reconstruction of accidents.

The expert interviewed the investigating officer and examined the police accident report, photographs of the scene and transcripts of witness testimony. He also listened to trial witnesses. He based his testimony on information gathered by these activities.

The expert testified, over objection, that the collision occurred in the decedent’s lane of travel, not the defendant’s lane of travel. The court of appeals found no error in the admission of this reconstruction expert opinion.

Some final comments on the tension between Hicks and Purdie. Hicks may still be reliable law if applied to the same facts involving the testimony of a law enforcement officer. If a properly qualified engineer has performed a proper investigation, then Hicks probably loses relevance and Purdie’s reasoning should override. (The defendant-appellant in Purdie did not challenge the witness’s qualifications, so the decision does not offer any teaching on the sufficiency of education, training or experience necessary to qualify as a reconstruction expert.)

(c) Pelzer v. United Parcel Service In Pelzer v. United Parcel Service, 126 N.C.App. 305, 484 S.E.2d 849 (1997), the court of appeals agreed with the trial court that the offered opinion testimony of a licensed professional engineer was not admissible. But the court’s discussion implies that properly qualified reconstruction testimony is admissible.

In Pelzer, the engineer, who was not a “certified accident reconstructionst” was offered to testify that the plaintiff’s injuries were consistent with the physics of the accident. He was also offered to testify that the defendant violated a standard of care. He was not offered to establish speed or location of the accident on the roadway or the relative positions of the vehicles at the time of the collision.

The court of appeals held that an expert may not testify that a certain legal standard has been met.

The court of appeals, in holding that this engineer was not qualified to testify about the mechanism of injury, observed that:

“[the engineer] first visited the scene of the accident nearly five years after it occurred and after the configuration of the roadway had been changed. He had never seen either of the vehicles involved in the accident and, in fact, had been provided conflicting information as to the type of UPS truck driven by defendant McGee. He took no measurements and had seen no photographs of the scene as it existed on the date of the accident. He testified that his understanding of how the accident occurred was based solely upon the investigating officer’s report.

“ . . . he made no calculations as to the velocities of either vehicle prior to or at the time of the collision, and had made no calculations to determine the amount of kinetic energy involved in the collision.”

The court expressly mentions the lack of “calculations as to the velocities of either vehicle prior to or at the time of the collision” as a deficiency in the basis of the engineer’s testimony.

The implication, though not the holding, of the Pelzer opinion is that a properly qualified expert can calculate velocities and perform other investigation which will allow testimony on the mechanism of injury. 2. Practice In The Trial Courts

(a) At least two published cases recite facts involving accident reconstruction engineer testimony on speed.

Hales v. Thompson, 111 N.C.App. 350, 432 S.E.2d 388 (1993), is a wrongful death case arising out of an intersection collision. Both parties used engineer’s testimony on speed. The admissibility of that testimony was not an issue on appeal.

State v. Hudson, 123 N.C.App. 336, 473 S.E.2d 415 (1996), is a manslaughter case arising out of a “DWI boating” collision between two private boats on Lake Wylie. The defendant’s evidence included the use of two accident reconstruction experts who testified as to their opinions of the speeds of each boat at the time of the collision. As in the Hales case above, the admissibility of those opinions was not at issue on appeal.

(b) Anecdotal Evidence – Engineers On informal inquiry, one North Carolina engineer has stated that he has given opinion testimony on speed 50 or more times over objection in North Carolina state trial courts. He said that he has never been prevented from testifying about speed.

Two other engineers said that they had seen the trial courts go both ways. They both recited instances where a judge would not allow opinion testimony about speed based on skid mark analysis, but in both instances the expert was allowed to say that, based on published technical charts, the defendant’s car, if moving “speed limit” miles per hour would have needed XYZ feet to stop and that the skid marks were XYZ++ feet long as measured by the investigating law enforcement officer.

There was a common feeling among the engineers that North Carolina was stricter than other states on the admission of speed testimony.

(c) Anecdotal Evidence- Lawyers

A knowledgeable academician stated that it was his suspicion that the dearth of reported opinions on this issue was the result of widespread acceptance in the trial courts of the admissibility of speed testimony when offered through qualified experts.

C. REFERENCES 29 A.L.R.3d 248 (1970) (Supp. 1988)

93 A.L.R.2d 287 (1964) (Later Case Serv. 1983) (Supp. 1988)

Brandis & Broun on North Carolina Evidence, Sec. 183 (Especially footnote 165.)

Expert Testimony Regarding The Speed Of A Vehicle: The Status Of North Carolina Law And The State Of The Art, Campbell Law Review Volume 16, Page 191

West Key No. Evidence 555.8(2) D. CONCLUSION

A proponent of accident reconstruction opinion testimony on speed needs to be prepared distinguish Hicks and Purdie. Hicks does not involve testimony from an engineer. The court’s holding, in this writer’s opinion, is dictum to the extent that its use of the word “expert” includes engineers with special training and experience in the established science of accident reconstruction.

Hicks will probably still prevent a patrolman from giving opinion testimony on speed based on his observation of skid marks.

Purdie allows reconstruction expert opinion testimony on the issue of location of an accident on the roadway.

Purdie explicitly excludes speed testimony from its discussion, but the reasoning in Purdie is in direct conflict with the reasoning in Hicks.

Anecdotal information provided by practicing lawyers, accident reconstruction engineers and reported decisions such as Hales and Hudson indicate that many, but certainly not all, trial courts are choosing Purdie as the fitter of the two opinions.

-- Robert Holmes (holmes23@bellsouth.net), February 22, 2001