Engineering Standards for Forensic Application

Engineering Standards for Forensic Application

Editors

Richard W. McLay

University of Iowa, Iowa City, IA, United States

Robert N. Anderson

RNA Consulting, Inc., Los Altos Hills, CA, United States

Table of Contents

Cover image

Title page

Notices

List of Contributors

Biography

Preface

Acknowledgment

Section I. Fundamentals

Chapter 1. Case Studies in Engineering Evidence

Two Initial Definitions

Introduction

Orthotropic Materials

Relevance

Definitions of the Terms in Evidence

Qualifying an Engineering Expert

Types of Evidence

Evidence used as the Basis of Opinion by an Expert

A Prima Facie Case

Hearsay

Case Studies

Case Study: The Testimony of a Witness to a Semi/Car Accident

Case Study: The Alleged Trip and Fall of an Elderly Person

Case Study: The Electric Shock of a Workman

Case Study: The Failure of a Weld in a Pressure Vessel

Case Study: Surveillance Tape Evidence

Case Study: A Jack Failure

Case Study: An Electrical Fire

Case Study: An Automotive Fire

Case Study: A Natural Gas Explosion

Case Study: The Fall of a Child from a Chair

Case Study: A Parasailing Accident

Case Study: Evidence of Bullet Hole Sequence

Case Study: Injury from a Closing Elevator Door

Case Study: Who Was Driving?

Chapter 2. Assessing Methodology of Engineering Experts

Introduction

Qualification of an Expert Witness

Issues for Forensic Engineering Expert Testimony

Falsifiability and Testability of the Underlying Theory or Technique

Error Rate

General Acceptance and Peer Review

Conclusion

Chapter 3. The Breadth of Engineering Standards

Introduction

Definitions

General Admissibility of Standards

Standards as the Basis of an Expert’s Opinion

Standards as Basis for Finding No Liability

Standards Used to Satisfy the Daubert Requirement of Reliability

Engineering Comment

Challenging the Sufficiency of an Standard

Standards Used to Establish an Express Warranty

Discussion

Chapter 4. Forensic Engineering Standards Seminars and Legal Seminars Focusing on Forensic Engineering

Chapter Initiatives

An Introduction to Two Seminar Types

An Example Using Wiitala Versus FORD

Federal Motor Vehicle Safety Standard 209 and the Two Seminar Types

A Comparison of Materials for Forensic Engineering and Legal Seminars

FMVSS 571.209: Possible Materials for a Litigator’s Seminar

Some Issues Impacting a Legal Seminar Using Wiitala

A Review of Some Available Resources

Closure

Chapter 5. An Environmental Engineering Case Study

The Case Background

Environmental Standards

The Standards-Setting Process

Engineering Practices

Closure

Section II. Disciplines

Chapter 6. Engineering Standards in Electric Shock

Anatomy of Electric Shocks: An Introduction

Codes, Standards, and Generally Accepted Principles

De facto Standards and Design Alternatives: Industry Awareness

A Case Study

Closure

Closure

Chapter 7. Carbon Monoxide, HVAC Standards, and Building Envelope Litigation

The Case

Definitions

Ventilation and Filtration

Observations

The Final Investigation

Further Case Studies

Closure

Chapter 8. Standards in Slip, Trip, and Fall Litigation

A Trip and Fall Case Study

Walking Surface Slip Resistance

Rubber Friction Theory

Visualizing Slip Resistance Using the FT Force

Calculating the Microhysteretic Slip Resistance Force, FHs

Slip Resistance Requirements for Pedestrian Ambulation

Quantifying Slip Resistance Scientifically Using Eq. (8.3)

Possible Use of the British Pendulum Device to Measure FHs

A Slip and Fall Case Study

Legal Standard

Court’s Discussion

Court’s Conclusion

Forensic Analysis on the Basis of the Empirical, Coefficient of Friction Approach

Accounting for Unrepresentative, Wet, Coefficient of Friction Test Results

Relevance of the Sticktion Issue to the Frazza Case

Nationally Recognized Standards for the Use of Mats

Closure

Chapter 9. Engineering Standards in Construction Litigation

Engineering Standards on the Construction Site

The Project Engineer and Compliance

Ensuring Compliance

A Classic Example of Power Line Equipment Contact

A Case Study in Construction Accident Litigation

A Case Study Illustrating the Dangers of Construction Maintenance

Causal Connection

An Engineering Evaluation of the Document

Questions for Review by the US Supreme Court in Collins

The Summary of Argument

Conclusion

Closure

Chapter 10. Engineering Standards in Transportation Litigation

Introduction

Case Studies

Closure

Chapter 11. National Fire Protection Association Standards in Fire Litigation

Introduction

Important

NFPA 58 and the History of Odorization

Unknown Dangers to the Consumers of Gas Products

Propane: A Colorless, Odorless, and Tasteless Gas

A Brief Look at the Chemistry of the Life of Mercaptan Odorants

Odorant Loss From Absorption/Adsorption

Combustible Gas Indicators

Kirk Versus ACME Propane et al.: A Case Study of a Propane Gas Explosion

Opinion

The State Adoption Table

Discussion

Overview

Outcome

Notes

Emphasis

Closure

Dissent

Chapter 12. Engineering Standards in Electrical Fire Investigations

Introduction

Investigation

Case Studies

Chapter 13. Engineering Standards in Geotechnical Investigations

Introduction

Case Studies

Mat Bearing Capacity and Settlement

Cold Region Foundation Design and Permafrost Engineering

Closing Comment on This Hypothetical Case Study

Chapter 14. Engineering Standards in Weld Failure

A History

Failures of Weldments in Service

Standards and Industry Practices

In-Service Failures

An Initial Case Study in Welding Failure

The State of the Art

Facts and Testimony

Engineering and the Testimony of the Experts

Case Summary

Opinion by Circuit Judge Moore

The Facts

The Plaintiff’s Case Against Kewanee

Kewanee’s Case Against Burnham

The Law of the State of New York

Applying the Law of the State of New York

Closure

Chapter 15. Engineering Standards in Highway Design Litigation

Introduction

Questions That Can Be Asked of Anyone in the Highway Design Field

State Roadway Design Manuals

Resources

Decisions Prior to the Design Process

Types of Highway Design Projects

Work Zone Safety

Modern Studies, Analyses for Highway Design

Design Exceptions

Highway Design Litigation

AASHTO, The Green Book, ITE, and the Evolution of Highway Design

Tort Law and Traffic: The Rise and Fall of Sovereign Immunity

Analysis: Does Tort Law Really Mandate High-Speed Street Design?

Discretionary Function Immunity

The Broad Policy Factors Test

Relevant Case Law

The Role of Institute of Transportation Engineers Guidelines

Can American Association of State Highway and Transportation Officials Guidelines Prevent Reliance on Discretionary Immunity?

Even in the Absence of Immunity, the Green Book Allows Pro-pedestrian Design

The Policy Issue: Why Bother?

Closure to This Review

Section III. De Facto Engineering Standards

Chapter 16. De Facto Engineering Standards

What Is a De Facto Industry Standard?

Thomas Versus Hallberg Construction and Supply, Inc. and Fruehauf

Plaintiff’s Expert A Testimony (Truncated at Points for Clarity)

Closure

Chapter 17. Industry Standards in Computing Litigation

Introduction

The Testimony Proving Windows Is a De Facto Industry Standard

Mr. Warren-Boulton Then Gives His Arguments in the Case

Another Event of Interest in Our Study of Windows

A De Facto or Industry Standard in the Computing Area

Closure

Chapter 18. Electric Power Industry Standards

Introduction

The Northeast Blackout: 2003

Litigation Following the Blackout

The Analysis of Electric Power Distribution

How Electric Power Standards Are Used in the Court System

Case Studies

Closure

Chapter 19. De Facto Standards in Tire Friction

Introduction

Engineering Calculation of Tire Friction

Pavement Testing Using Eq. (19.3)

Case Study

Misapplication of the De Facto Coefficient of Friction Standard

Examination of the Martinez Accident Using Friction Forces

Closure: Demonstrating an Unreasonably Dangerous Condition

Chapter 20. A Patent as a De Facto Standard

Introduction

The Technology of a Tire Bead

The 1958 Patent

A Case Study

Closure

Chapter 21. Forensic Economics—Always There

Introduction

Individual as Compared With Society Economics

A Basic Review

Economic Models

Insurance

US Army Corps of Engineers Economics Study

Closure

Chapter 22. De Facto Standards in Accident Reconstruction

Questionable Dynamics Models

The State’s Case

Sample Questions for Experts

Closure

Appendix

Section IV. Basic Sciences/Basic Engineering

Chapter 23. Examples in Biomechanics

Chapter 23.1. The Passenger’s Head Impacts the Instrument Panel (An Example of Traumatic Brain Injury)

Chapter 23.2. The Driver’s Body Impacts the Seat Belt and Shoulder Harness

Chapter 23.3. Bloodshot Eyes in the Rollover of a Van

Chapter 23.4. The Driver’s Body Is Struck From Behind by the Seatback

Chapter 23.5. A Child’s Injury and Death

Chapter 23.6. The Death of a Geriatric Driver

Chapter 23.7. A Crippling Injury With a Missing Reference Point

Chapter 23.8. A Chance in a Million

Chapter 23.9. Brain Injury Without Head Contact

Chapter 23.10. Injury Causation as a Reconstruction Tool

Chapter 23.11. A Question of Marijuana

Chapter 23.12. A Hit and Run

Chapter 23.13. Animal Testing and a Question for the Expert

Chapter 23.14. Transportation in an Ambulance

Chapter 23.15. Three Young Women in a Falcon

Chapter 23.16. A Broken Arm, a Death

Chapter 23.17. Embezzlement, a Burned Car, and Alice Springs, Australia—A Case of Forensic Odontology

Chapter 23.18. The Brain, an Impact, and an Investigation

Chapter 23.19. An Apparent Stabbing and a Murder Indictment

Chapter 24. Human Factors in Accident Analysis

Introduction

How Human Factors Experts Do Their Work

Human Sensation, Perception, and Attention

Paying Attention

Human Attention Allocation

Sensation, Perception, and Warnings

Perception/Response Time and Warnings

Warnings and Other Facilitators

Human Error

Why Did He Do That?

Human Decision-Making

Human Physical Capabilities and Motor Control

Human Factors and Training

Human Factors and the Environment

Human Factors in Highway Design—Leading to an Example

Carl Richard Cook versus State of IOWA

Closure: The Human Factors Testimony—Given Without an Accident Reconstruction

Chapter 25. Standards in Human Vibration Litigation

Introduction

Whole-Body Vibration

A Graphical Summary for Whole-Body Vibration

Chapter 26. Products Liability

Introduction

Typical Restraint Hardware

The Engineering of Inertial Release

Investigating Wiitala versus ford

What the Record Showed for Wiitala

The Moffatt Paper—The Hidden Results

The Plaintiff’s Trial Strategy Used in Wiitala versus FORD

A Question of Design—The Designer Must Work With the Analyst

The State of Michigan Court of Appeals

The Problem of Accident Reconstruction

The Racketeering Influenced and Corrupt Organizations Act

Section V. Engineering Standards— The Forensic Future

Chapter 27. The Future of Forensic Methods

Chapter 27.1. Introduction

Chapter 27.2. As Brain Injury Is Admitted by the NFL, the Finding That Helmets Do Not Help Is Disturbing

Chapter 27.3. A National Dental X-Ray Register

Chapter 27.4. The Flint, Michigan Analysis

Chapter 27.5. An Oil Pipeline/Railway Transport Reliability Study

Chapter 27.6. Dog Bites: The Causes and Litigation

Chapter 27.7. Autonomous Vehicles

Chapter 27.8. A Review of Vehicle Impact Analyses With a Focus on the CRASH Algorithm

Index

Copyright

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Notices

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List of Contributors

Adam K. Aleksander,     Aleksander & Associates, P.A., Boise, ID, United States

Carlos E. Alvarez,     Nationwide Children’s Hospital and The Ohio State University Columbus, OH, United States

Robert N. Anderson

RNA Consulting, Inc., Los Altos Hills, CA, United States

Donald J. Anderson †

David C. Averill,     Averill & Averill, Burlington, VT, United States

Richard D. Brugger,     Professional Engineer, Erie, PA, United States

Edward M. Buturla,     Retired IBM, Milton, VT, United States

Joe S. Cecil,     Federal Judicial Center, Washington, DC, United States

Lawrence Copp,     Economic Policy Resources, Inc., Williston, VT, United States

Joseph M. Cornwell,     The Ohio State University College of Veterinary Medicine, Columbus, OH, United States

Thomas J. DiNovo,     O’Connell & Aronowitz Law Firm, Albany, NY, United States

John C. Gordon,     The Ohio State University College of Veterinary Medicine, Columbus, OH, United States

Jesse A. Grantham,     Welding & Metals Expert, Frederick, CO, United States

Klas C. Haglid,     Haglid Engineering, Ridgewood, NJ, United States

Robert T. Hintersteiner,     Transportation and Forensic Engineer, Boynton Beach, FL, United States

Robert J. Johnson,     The University of Vermont, Burlington, VT, United States

Paul Kamen,     Surface Propulsion Analysis, Berkeley, CA, United States

Michael Kravitz,     Consulting Forensic and Civil Engineer, New York, NY, United States

Lila Laux,     Human Factors Consulting, Denver, CO, United States

John Leffler,     FORCON International, Atlanta, GA, United States

Michael Lewyn,     Touro Law Center, Central Islip, NY, United States

Laura L. Liptai,     BioMedical Forensics, Moraga, CA, and Orlando, FL, United States

David V. MacCollum,     Past President of the American Society of Safety Professionals

Richard W. McLay,     University of Iowa, Iowa City, IA, United States

Joel A. Miele †

Harry Miles,     Green Miles Lipton, L.L.P., Northampton, MA, United States

James P. Olson,     University of Vermont, Burlington, VT, United States

Karen S. Pedersen,     IEEE-USA Past President, San Antonio, TX, United States

James A. Petersen,     Petersen Engineering, Texarkana, TX, United States

Dave V. Scott,     Author of the amicus curiae brief for Kumho Tire vs, Carmichael, New Albany, IN, United States

Thomas P. Shefchick,     Shefchick Engineering, Rio Vista, CA, United States

Robert H. Smith,     Rob Smith Associates, Muklteo, WA, United States

David G. Wilder,     University of Iowa, Iowa City, IA, United States

†  Deceased.

†  Deceased.

Biography

Robert N. Anderson, Ph.D., P.E.

Dr. Anderson is the president of RNA Consulting, Inc., a forensic engineering consulting corporation that specializes in materials engineering and sciences.

His expertise is the analysis of the behavior of materials, such as metals, plastics, glass, wood, and ceramics, in their related environments.

Dr. Anderson’s experience is in the materials and metallurgical engineering aspects of accident analysis and failures, including the areas of industrial equipment, industrial materials applications, design failures, corrosion issues, and water system failures.

Dr. Anderson holds a Ph.D. in Applied Earth Sciences, Metallurgy, from Stanford University, M.S. and B.S. degrees in Chemical Engineering from the University of California at Berkeley, and a B.S. in Chemistry from the University of San Francisco.

He has published in the areas of thermodynamics, corrosion, surface chemistry, fire analysis, and understandings of archeological materials. He is a diplomate and past president of the Board of Directors of the International Board of Forensic Engineering Sciences (IBFES)—the IBFES board certifies engineering sciences forensic experts.

He has both plaintiff and defense experience in civil and criminal matters; he is experienced as a court-appointed expert. He has designed and led workshops in presentation of evidence to the jury.

Dr. Anderson is

• Past member of the Board of the American Academy of Forensic Sciences (AAFS).

• An elected fellow/past president of the National Academy of Forensic Engineers (NAFE).

• A founding member/past president of the Society of Forensic Engineers and Scientists (SFES).

• Emeritus Professor, Department of Materials Engineering, San Jose State University, San Jose, California.

In the community of Los Altos Hills, he is a member of the board and past president of the Board of Directors of the Purissima Hills Water District (PHWD), and on the Board of the Bay Area Water Supply and Conservation Agency (BAWSCA), which serves the agencies that subscribe to the Hetch Hetchy water system of the San Francisco Public Utilities Commission (SFPUC).

Dr. Anderson and his family have resided in Los Altos Hills since 1986 and previously lived in Palo Alto. His wife, Dru, is a consultant in lifecycle process management and communications and the vice president of business and technical operations of their company, RNA Consulting, Inc.

Richard W. McLay, Ph.D., P.E.

Dr. McLay is retired. He is the former president of STARK rxp, Inc., a forensic engineering consulting corporation that specialized in the development of restraint systems for motor vehicles, structural analysis of the human body, software development in biomechanics, structural analysis of vehicles, vehicle dynamics, forensic animation, and vision and perception in human factors.

His expertise is the analysis of vehicles and the human body in the related environments of vehicle accidents and crashes of all types.

Dr. McLay’s experience includes simulation in accident analysis and design failures. He is a consultant in his specialty areas and a testifying expert witness in accident reconstruction, with over 40   years of experience serving courts in the United States.

Dr. McLay holds M.S. and Ph.D. degrees in Engineering Mechanics with a related B.S. in Mechanical Engineering from the University of Wisconsin.

He has published in the areas of forensic animation; accident reconstruction; perception, reaction, and conspicuity; engineering evidence and lay testimony; forensic air bag analysis methods; the use and misuse of engineering standards; his forthcoming book: Engineering Standards for Forensic Application; and a series of papers on biomechanics.

He has both plaintiff and defense experience in civil and criminal cases. He has worked for the State of Vermont in accident reconstruction cases. He has worked pro bono on cases of indigent defendants. He has designed and led seminars and workshops on forensic methods for both engineers and attorneys.

Dr. McLay is

• A current faculty member of Biomedical Engineering at the University of Iowa.

• Former member of the American Academy of Forensic Sciences.

• A fellow of the National Academy of Forensic Engineers.

• A holder of the patent: Target Standoff Sensor for Shaped Charge Warhead, U.S. Patent No. 4567829.

In the community of Essex Junction, Vermont, he is a former member of the Planning Commission.

Dr. McLay and his wife of 58   years have resided in South Burlington, Vermont, since 2006. His wife, Daren, a medical technologist, has been the business manager for the forensic work, beginning in 1990.

Preface

For better or worse, our group of contributors has been called on to tell the story of forensic engineering and how case studies and standards can be used in court: what we saw, how it developed, what the science and engineering was, what cases have influenced that development, and what the courts have decided as the evidence has been presented.

We have relied on experience, observation, analysis, testing, and reflection. Inevitably, it is a history as seen through our eyes—a portrayal of what we saw and thought and did—and of course, to fit into one volume, it had to be selected and compressed.

A complete record of what can be possible in the field must await the results of other tests, analyses, investigations, and the exploration of new theories—not all known as of yet. At the time of this writing, the Federal Government is in the process of reviewing all aspects of Forensic Sciences and Engineering. Our contributions to the larger current of scientific and forensic engineering thought we leave to more detached, possibly less-tolerant observers.

This, to repeat, is a monograph on what the coauthors saw or learned. It is not, we hasten to say or at least urge, an end-all to the subject. We are concerned here with the main elements of forensic engineering; there are many lesser matters on which we do not dwell. This is intentional. For the most part, we have sought to avoid language and explanation peculiar to the forensic engineering field. It has long been our view that there is no forensic engineering evidence that cannot be put in clear language, cannot be made accessible to the literate and interested attorney reader, and, in the end, cannot be put into stated definitions. Such attempts, however, do not justify error or oversimplification. In writing for the litigator, one cannot claim exception from accuracy of argument or conclusion.

During the period that new forensic investigative methods, such as the application of DNA to forensics in injury causation, were developed, and America saw an increase in the number of its citizens incarcerated in 2013 to 716 per 100,000 of the national population. It is the highest in the world. While evidence is supposed to be blind, it can occur that a suspect with means may avoid imprisonment through the proper development of evidence for defense; thus, in some instances, the economically poor suspect might not have the same defensive resources as the more economically well off. A further problem is when law enforcement is shielded by sovereign immunity. When, in some instances, law enforcement is shown to be wrong, not scientific, and stretching evidence to the point of fabrication, the jury can be convinced that the defendant is innocent. However, when the next case emerges, the pattern continues; there are no consequences for false testimony by the police.

For some, the treatment in this volume of controversial matters will be a view of forensic methods, which is completely unfamiliar to them. To the forensic engineering reader, however, much of what is shown here will be a breath of fresh air. And to the interested litigator, it might be a warning of what to avoid in the choice of an expert.

As a nation we must understand that serious people are found on both sides of every issue in a court of law. The training and experience of these people, both experts and litigators, however, will vary dramatically. Of course, there always will be a question of ethics in these discussions.

In writing these chapters, our contributors have tried to keep reliance on memory to a minimum. The scientific and engineering literature has been researched to support the methods put forth and, in some cases, described in depth. The case studies presented have been carefully chosen to illustrate the application in a court. In one instance, we have presented a complete overview of an actual case from the evidence to the court’s decision. Such is what is found in Chapter 26, in which we review Wiitala versus FORD, a presentation that ends with comments about the Racketeering Influenced and Corrupt Organizations Act. In keeping with the spirit of the monograph, we reflect on what FMVSS 209 would have contributed to the case; it was not introduced into evidence or used as the basis of an opinion. There is obviously a question of relevance in the presentation. In this, the reader will have to trust our group to have done what is right.

One of the paradoxes of the age of simulation and of imaginative testing to the extreme is that the presentation of scientific and forensic engineering evidence may have become nearly impossible. The methods in, for example, the plastic deformation of a vehicle structure or electronic control theory for an air bag issue require a graduate level understanding to study and interpret the evidence for a court. Only a broad-brush treatment of these methods is possible for a court to understand. This is complicated by the selective study and presentation of documents, some of them not peer-reviewed.

The expert participating in a controversial case is, of course, not immune to temptation when the analysis is done and writes a report. Obviously, the perspective will be influenced by the involvement; the impulse to explain merges with the impulse to defend the report. But the expert has at least vital contributions to make in preparing for testimony: determine which of the many parts of the evidence in fact influenced the opinions given; the analysis must be in view with nothing hidden; the revealing tests must be carefully examined; documents that reflect the reality of the case must be studied in depth; and the expert will recall which evidence was taken seriously, which evidence was rejected as being questionable, and which evidence was found to be contrived. The reasoning behind the opinions given must be clear and understandable. And the expert is compelled by ethics to disclose whatever is referenced/tested in the examination of the matter.

Nothing from the above can prove that the judgment of the expert was right—only what it was based on. If the work was done with detachment, an expert’s document from memory may help future scientific and engineering studies in the field of enquiry, especially when, in time, more evidence becomes available about further events and cases. It is our guiding confession that we believe the greatest error in forensic engineering is in seeing the field as a fixed, immutable structure.

This work is not a history of forensic engineering in the usual sense of the subject. We did not attempt to tell all of what happened in every analysis, every test, or every case study. We feel that it is a manifestly worthy and useful effort, but it is not ours alone. We owe a deep debt of gratitude to the people at ASTM International. Kathy Dernoga, the Managing Editor, a friend, confidant, and invaluable associate, provided materials for studying the application of engineering standards in the courtroom.

The editors wish to acknowledge the many contributors and their efforts in preparing the chapters that comprise this document. This book has resulted from a collaboration of engineers, scientists, academics, judges, and attorneys.

We thank the editors’ wives, Daren and Drucilla, who encouraged us with advice and love, respectively. As always, they served as our collective conscience.

Richard W. McLay, and Robert N. Anderson, Co-editors

Acknowledgment

The authors wish to acknowledge the many people who worked on, advised, contributed ideas to, internally reviewed, and supported in many ways the writing of this monograph over a 10-year period, including the staff of the American Society for Testing and Materials International, who critiqued the basic outline and supplied many of the resources.

We appreciate the hours and talents of the many hands that helped to sculpt and shape this work from the publication professionals, authors, staff, skilled family and friends who generated concepts and reviews, and, modestly, our coeditors, who diligently coaxed, commended, critiqued, and pursued what has resulted in an epic work of value and contribution to forensic sciences and engineering, to law resource, and to education of our future professionals.

Our heartfelt thanks to all who have been touched by this work.

Your co-editors

Richard W. McLay, PhD, and Robert N. Anderson, PhD, PE.

Section I

Fundamentals

Outline

Chapter 1. Case Studies in Engineering Evidence

Chapter 2. Assessing Methodology of Engineering Experts

Chapter 3. The Breadth of Engineering Standards

Chapter 4. Forensic Engineering Standards Seminars and Legal Seminars Focusing on Forensic Engineering

Chapter 5. An Environmental Engineering Case Study

Chapter 1

Case Studies in Engineering Evidence

Richard W. McLay ¹ , Michael Kravitz ² , Robert N. Anderson ³ , Adam K. Aleksander ⁴ , Richard D. Brugger ⁵ , Jesse A. Grantham ⁶ , Paul Kamen ⁷ , John Leffler ⁸ , Dave V. Scott ⁹ , Laura L. Liptai ¹⁰ , Harry Miles ¹¹ , Thomas P. Shefchick ¹² , and David C. Averill ¹³       ¹ University of Iowa, Iowa City, IA, United States      ² Consulting Forensic and Civil Engineer, New York, NY, United States      ³ RNA Consulting, Inc., Los Altos Hills, CA, United States      ⁴ Aleksander & Associates, P.A., Boise, ID, United States      ⁵ Professional Engineer, Erie, PA, United States      ⁶ Welding & Metals Expert, Frederick, CO, United States      ⁷ Surface Propulsion Analysis, Berkeley, CA, United States      ⁸ FORCON International, Atlanta, GA, United States      ⁹ Author of the amicus curiae brief for Kumho Tire vs, Carmichael, New Albany, IN, United States      ¹⁰ BioMedical Forensics, Moraga, CA, and Orlando, FL, United States      ¹¹ Green Miles Lipton, L.L.P., Northampton, MA, United States      ¹² Shefchick Engineering, Rio Vista, CA, United States      ¹³ Averill & Averill, Burlington, VT, United States

Abstract

This chapter is an overview of evidence, with examples, to give readers a sense of what the fundamental engineering terminology for standards in evidence is, its likely application, and the problems that can occur when a standard is misused in a court of law. We emphasize that engineering standards are useful as expressing a consensus view of the profession. This would appear to be the reason that courts give them so much weight. However, standards may be too general or they may be overly influenced by special interest groups. There is also considerable variation in how courts give deference to standards as an authoritative statement of profession consensus, especially when voluntary standards are developed by small groups of professionals. The chapter begins with an introduction to the evidence of engineering standards. The definitions of the terms of evidence follow. Next, engineering case studies are presented as examples. The objective of this chapter is to provide an engineer reader with definitions and substantive examples of the variants in types of evidence and their use. These are the tools necessary to understand the evidence concepts in the detailed discussions of the following chapters.

Keywords

Demonstrative evidence; Engineering standard; Evidence; Evidence used as the basis of an opinion by an expert; Hearsay; Prima facie case; Relevancy; Substantive evidence

Two Initial Definitions

Two basic definitions are essential to the beginning of this chapter ¹,² :

Evidence—Something (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact. ³

Engineering standard—The definition of standard according to Black’s Law Dictionary is A model accepted as correct by custom, consent, or authority. ⁴ We would add to this … in the engineering area.

Introduction

The purpose of this engineering monograph ⁵ is to provide a specialist in the field with easy access to technical information on standards and forensics. A monograph on engineering standards, especially one focusing on the application of those standards to forensic engineering, ⁶ is unusual because of the diversity of thought and activities undertaken by engineers in the various fields.

Engineering standards can be both helpful and troublesome. We know, for example, that business people, scientists, engineers, architects, and designers from various disciplines all can use a given engineering standard. Employed correctly, that standard thus becomes a guideline to sound analysis. It gives confidence that a lot of people have used the technology of the standard, a lot of people have passed that way before, and the chance of success using the standard is very high. The problems come in forensic engineering when a standard is misused in a court of law, e.g., it is not relevant to the subject at hand. ⁷

When an engineering standard is introduced into evidence, the assumption is that the document represents the best that is known about the subject at hand. Let us look at the standard ASTM E8M-04, Standard Test Methods for Tension Testing of Metallic Materials. ⁸ The use of ASTM E8M-04 for the tensile testing of metals gives credibility to the testing procedures used in evaluating the evidence of the case. A great deal of work went into the creation of E8M-04. It is based on firm theories in mechanics, especially engineering plasticity, and a long history of experience in the laboratory. ⁹ Suppose, however, that it is applied to something that was never accounted for in the original development, for example, an orthotropic material. ¹⁰

Figure 1.1 A fiberglass tensile specimen cut from an auto body.

Orthotropic Materials

An orthotropic material is defined as one in which the elastic constants vary with orientation. ¹¹

Let us imagine that an issue arises in a case in which the strength of an orthotropic material is in question. A good example is the composite fiberglass body of a Corvette. ¹² The testing of such a material cannot be done using the methods of E8M-04.

Suppose that an expert performs a test on a fiberglass sample using E8M-04. He cuts the sample from the fiberglass body and shapes it according to the requirements of E8M-04, as shown in Fig. 1.1. The requirements for shaping the test specimen are illustrated on the sample, taken from the standard. The specimen is in the shape of a dog bone and the requirements for the size and shape of the specimen are listed in the standard as it was developed and recorded for application.

Because the composite fiberglass is an orthotropic material, the results of the tensile testing will depend on how the specimen is cut from the auto body, i.e., the orientation of the specimen.

Standard ASTM E8M-04 does not apply to the testing of the orthotropic composite material in this composite auto body. Instead, ASTM D 3039/D 3039M, Standard Test Method for Tensile Properties of Polymer Matrix Composite Materials, should be used, including all of the requirements for specimen orientation. In the coming chapters we will see many of these problems in the application of engineering standards to forensic methods.

Relevance ¹³

Before we discuss the important concepts and definitions of evidence, we need an understanding of relevancy. Does an engineering analysis or test have a tendency to provide information to a case? If so, it is relevant.

Subject to some exceptions, all relevant evidence is admissible and evidence that is not relevant is not admissible. Federal Rule of Evidence 401 ¹⁴ states:

Relevant evidence means evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

A good example of relevancy of engineering evidence is the result of a basic experiment run by a retired policeman who wished to estimate the speed of a vehicle just prior to a collision at an intersection. An analysis of the example involves an application of Federal Rule of Evidence 402. ¹⁵ The evidence the policeman was attempting to introduce was not relevant.

In running the basic experiment, the policeman took a radar gun to the accident scene and measured the speeds of several vehicles coming through the intersection in the direction of travel that the subject car was moving just prior to the accident. When the policeman attempted to present the results of an average speed from these tests for the subject car, there was an immediate objection. ¹⁶ The testing was found by the court to be not relevant to the case. The testing would have had to have been done at the scene at the time of the accident and would have to have measured the actual speed of the subject vehicle, an impossible task.

To make any scientific or engineering evidence relevant to the case, the policeman would have had to have used an accepted method to estimate the speed of the car, such as a momentum investigation ¹⁷ of the collision of the vehicles coupled with the determination of the pre- and postimpact trajectories from photographs or the police measurements.

The action of the policeman in the above example had no appreciable probative ¹⁸  value. In engineering terms, the test could not be applied to the problem at hand. The federal courts, post Daubert, are tightening the standards for qualifying an expert. ¹⁹

Definitions of the Terms in Evidence

This section will give an introduction to the definitions of terms in evidence. We will start by examining the qualifications of an expert. Next, we will look at the definition of the word foundation. We will then discuss exhibits. Finally, we will define each of the types of evidence.

Qualifying an Engineering Expert

At the outset, there must be some evidence to show that by virtue of the engineer’s knowledge, skill, experience, training, or education, the engineer has the background to be an expert on the subject on which the testimony will be given, i.e., that the expert is qualified. That education or experience gives the expert the knowledge or skill to draw an inference completely beyond the competence of a layperson or to draw the inference much more reliably. The court alone decides whether the expert is admitted to testify. Federal courts are governed by the Rules of Evidence. Forty one states have adopted evidence codes modeled more or less directly after the Federal Rules of Evidence (FRE). In federal court, ²⁰ a key rule of evidence in establishing qualification is 702. ²¹

Rule 702 sets down the requirements for testimony of an expert:

If scientific, technical, or other specialized knowledge will assist the trier of fact [this can be either a judge in a bench trial or a jury in a jury trial] to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the case.

Once the forensic engineer has been qualified under FRE 702, the engineer may give opinions based on FRE 703:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Rules 702 and 703 were changed to their present form in 2000 to harmonize the rule with the United States Supreme Court’s decisions in Daubert, ²²  Joiner ²³ , and Kumho Tire. ²⁴ These three decisions form the core of the analytic framework in all federal courts and 70% of the state courts.

Analysis of these three decisions leads to four basic conclusions. First, the trial judge in federal court and some state courts has the obligation to insure that all expert testimony is reliable in all aspects. ²⁵ However, most judges are not going to subject the proponent’s expert testimony to Daubert scrutiny absent an objection. ²⁶ Second, the judge’s decision will not be set aside absent an abuse of discretion. Third, the "Daubert factors" are not to be applied to every expert in every case and finally, the context of the testimony that will control its analysis.

The Federal Judicial Center’s Reference Manual on Scientific Evidence, Second Edition

The second edition of the Federal Judicial Center’s Reference Manual on Scientific Evidence was released in late 2000, after Kumho Tire was decided. The third edition will soon be released. The Manual will be the primary reference source for federal judges ruling on the admissibility of expert testimony. Kumho is important because it is the only decision of the three specifically addressing engineering testimony. The Manual interprets two very important aspects of the Kumho decision.

The Role of the Daubert Factors

A problem with Kumho Tire is that many judges do not fulfill Kumho’s mandate that a trial judge’s gatekeeper role extended to all expert testimony. The court in Kumho made it clear that the "Daubert factors" ²⁷ did not constitute a check list to be given wooden application, to all expert testimony, in all cases. Despite this, many courts still use these factors to judge all expert testimony.

The Manual makes it quite clear that the role of these factors is limited to those situations where they truly apply.

The defendant had stated at oral argument that the factors discussed in Daubert were always relevant. Justice Bryer’s opinion rejects this notion categorically.

Determining which factors are indicative if reliable in a particular case cannot be accomplished solely by categorical a priori characterizations about the particular field in question. The court explained: Engineering testimony may rest upon scientific foundations, the reliability of which will be at issue in some cases. In other cases, the relevant reliability concerns may focus upon personal knowledge or experience. ²⁸ (Emphasis supplied)

²⁸   Reference manual on scientific evidence. 2nd ed. pp. 18, 19. Copies of Manual may be downloaded from: http://www.fjc.gov/library/fjc_catalog.nsf.

In its analysis of the trilogy of Daubert, Joiner, ²⁹  and Kumho, the Manual addresses the impact Kumho has on the two prior decisions. Again, the first point made is Kumho’s impact on the "Daubert factors."

Certainly the Court’s opinion does not support those who construed Daubert as creating a four-factor test for scientific evidence or those who thought that the court might in subsequent cases articulate classification schemes for other fields of expertise.

It appears less interested in a taxonomy of expertise and more concerned about directing judges to concentrate on the particular circumstances of the particular case at issue. This flexible, nondoctrinaire approach is faithful to the intention of the drafters of the Federal Rules of Evidence, who viewed Article VII as setting forth flexible standards for courts to apply rather than rigid rules. ³⁰ (Emphasis supplied)

³⁰  See footnote 29, at p. 21.

Unfortunately, many writers have replaced the four-factor test with other checklists, one of which contains as many as 30 factors. For its part, the Manual does not attempt to replace one rigid group of factors with another.

The Role Real-World Experience Plays in the Admissibility of Engineering Testimony

A concern by practicing engineers was that pre-Kumho decisions were not giving proper weight to the role experience plays in engineering analysis. Clearly Kumho addressed this and the authors of the Manual elaborated.

In Kumho, the Court contemplated that there will be witnesses whose expertise is based purely on experience," and although it suggested that Daubert’s questions may be helpful in evaluating experience-based testimony, it did not single out testability as the preeminent factor of concern as it did in Daubert. ³¹

One critical aspect of Kumho is referred to in the Manual as intellectual rigor. It refers to the following passage in Kumho:

The objective of that requirement is to ensure the reliability and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. ³² (Emphasis supplied)

If all engineers in a particular field handle a problem in the specific manner or use a particular methodology, that practice or methodology can be a benchmark for both the admissibility and exclusion of testimony.

It is not enough, therefore, under the intellectual rigor test for experts to venture hunches that they would never express or act upon in their everyday working lives. Experts must show that their conclusions were reached by methods that are consistent with how their colleagues in the relevant field or discipline would proceed to establish a proposition were they presented with the same facts and issues. ³³

There should be no difference between the way an expert reaches an opinion in court and the actual practice of his profession. The caveat here is that the expert who is offering opinion testimony based on experience or following procedures utilized by a particular industry or profession must document that the industry does, in fact, follow the procedure or methodology proposed. The mere fact that an engineer follows procedures or uses a methodology in court in a manner consistent with every day practice will not guarantee admissibility if those practices themselves are sloppy and therefore unreliable.

Weisgram v. Marley Company

A fourth important case is Weisgram v. Marley Company. ³⁴ It adds nothing to the criteria for admissibility, but it enhances the consequences if proper care is not taken to establish the reliability of expert testimony. ³⁵ The Supreme Court held that if the trial court allowed an expert to testify and the reviewing court determined that a plaintiff’s experts’ testimony was not reliable, the reviewing court did not have to send the case back to the trial court for a retrial. The appellate court could set aside the verdict and enter judgment for the defendant! ³⁶ If the exclusion of the evidence renders the plaintiff’s case legally insufficient to support a judgment, the plaintiff does not get a second chance to present a legally suffice case.

If the requirements of these rules are met, then the expert testimony may be received as evidence. Our next task is to define and discuss the exhibit, a physical object and/or visual illustration used at trial, such as an actual machine or vehicle part, photograph, scale model, document, or other item of evidence or a record of evidence. Before we discuss the exhibit, we need to define the term foundation.

Figure 1.2 A driveshaft exhibit (simulated).

Foundation

The term foundation refers to the basis on which something is supported. ³⁷ The presentation of foundational testimony is a condition precedent to the introduction of the item of evidence. For forensic engineering work, a foundation for the evidence is generally found in witness statements and the investigative and analytical work carried out by the expert and investigator working with and for the expert. Initially, during testimony on the technical facts, the expert will provide a summary of the foundation. Laying the foundation ordinarily has to precede the formal admission of the evidence.

Identification, Authentication of Exhibits

³⁸

Testimony or other evidence must be used to disclose what the exhibit is and must show that the exhibit is what it is claimed to be, i.e., authenticate it.

The techniques for introducing exhibits are illustrated in detail in the books by Imwinkelried, ³⁹ Haydock and Sonsteng, ⁴⁰ and Mauet. ⁴¹

An example of an exhibit is the driveshaft of a vehicle involved in a collision, obtained from a wrecking yard, illustrated in Fig. 1.2. The purpose of introducing the part into evidence was to show to the court that the dimension between the forward universal joint and the aft prominence along the driveshaft exactly matched the dimension between two gouge marks in the pavement at an accident scene.

The testimony by either of two people could be used to authenticate the driveshaft as an exhibit:

• the operator of the wrecking yard could be called to testify as a fact witness,⁴² identifying the driveshaft through the vehicle identification number (VIN) and the ownership of the vehicle or

• the expert who purchased the driveshaft from the wrecking yard could testify that it came from the vehicle identified by the VIN being a unique number identifying the vehicle, usually from the police accident report.

For issues such as this driveshaft, the parties ⁴³ often stipulate, ⁴⁴ in engineering terms, agree to, the authentication of the exhibit.

Types of Evidence

There are a number of types of evidence including substantive evidence, demonstrative evidence, and evidence used as the basis of an opinion by an expert.

Substantive Evidence

Evidence offered to help establish a fact in issue ⁴⁵ [such as a murder weapon] is called substantive evidence, real evidence, or original evidence.

Substantive evidence serves as proof of the historical facts or events in dispute. Substantive evidence can be used to defeat a motion for a directed verdict in the trial court and to support a judgment on appeal. The driveshaft in Fig. 1.2 would constitute substantive evidence, from which the engineering expert measured the distance between the forward universal joint and the aft prominence. At time of trial, the driveshaft could be brought into the courtroom to show to the jury. When substantive evidence is too large to bring into a courtroom, such as an entire vehicle or machine, the jury can be brought to the evidence in a supervised visit with the judge in attendance, a jury view. ⁴⁶ Alternatively, demonstrative evidence can be used.

Demonstrative Evidence

Demonstrative evidence illustrates testimony. ⁴⁷ It can come from the case itself or result from work done by the engineering expert in investigating and analyzing the engineering evidence of the case. It merely illustrates the testimony of an expert rather than evidence that has independent probative value. ⁴⁸

Demonstrative evidence aids the trier of fact in understanding the witness’s testimony. In contrast, the witness’s testimony is the real, substantive evidence.

Demonstrative evidence is limited only by imagination. It can consist of maps, models, enlarged copies of photographs, and copies of documents placed in large poster format, typically 24 by 36   inches in size so that the jury can see the drawings, numbers, or statements easily from where they are sitting. The potential for exhibits like these for helping jurors understand testimony explains their widespread use. ⁴⁹

Let us return to the driveshaft as shown in Fig. 1.2. Suppose that the driveshaft is covered with grease and would be difficult to bring into a courtroom. ⁵⁰ Once the measurement on the driveshaft is made by the engineer, the expert can testify as to the measurement, but to illustrate how that measurement was made, a photograph of the driveshaft could be used. That photograph would be demonstrative evidence.

Evidence used as the Basis of Opinion by an Expert

Opinion evidence is the province of the expert. Opinion evidence is a witness’s belief, thought, inference, or conclusion concerning a fact or facts. ⁵¹ Federal Rule of Evidence 703 ⁵² states:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Federal Rule of Evidence 703 governs the way the attorney feeds the case-specific information to the expert. ⁵³ Under 703, there are three possibilities: the expert acquires personal knowledge, the attorney uses a hypothetical question, or the expert relies on a hearsay report if it is customary practice of his/her specialty to consider information from such sources.

A forensic engineering expert can give opinions based on a wide variety of types of information: photographs, surveys, analyses of impact, simulations of vehicle movement, basic experiments in lighting, witness statements, weather data, the calculated position of the sun relative to the horizon, a crash test run by the National Highway Transportation Safety Administration, and an endless list of other evidence.

A Prima Facie Case

Although the classification of evidence into substantive or demonstrative relates to the type of evidence, the next expression relates to the quantity of evidence. A prima facie case is enough evidence to establish a fact or sustains a judgment unless contradictory evidence is produced. ⁵⁴ It is the quantum of evidence adequate to sustain a judgment. To a forensic engineer, the concept means that when we first look at the evidence we can immediately draw a conclusion from it. From a practical standpoint, if a forensic engineer can view the evidence and realize that it is adequate to show a fact, augmenting that evidence with further analysis is not necessary although an attorney may choose to introduce further evidence as corroboration.

Hearsay

The definition of hearsay ⁵⁵ is given by Article VIII of the FRE. ⁵⁶ The study of hearsay is extremely complex. We will attempt here to introduce the idea for a forensic engineer by using a simple example, leaving the more complex issues to attorneys and members of the judiciary. The reader with a great interest can find a deeper understanding in the appendix on the subject.

To understand hearsay we first need several definitions:

Statement: A statement is (1) an oral or written assertion (a declaration or affirmation) or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.⁵⁷

Declarant: A declarant is a person who makes a statement.⁵⁸

Hearsay: A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Hearsay (1) is an assertive statement [801(a)]; (2) is offered for the truth of the assertion [801(c)]; (3) is an assertion by a human declarant rather than being computer generated [801(b)]; and (4) if the declarant becomes a witness at trial, in some circumstances the witness is no longer considered an out-of-court declarant [801(d)]. If any element of this definition is missing, the testimony does not constitute hearsay, and the proponent may introduce the testimony without showing that the testimony falls within a hearsay exception.

To illustrate the definition of hearsay we examine an engineering example to make the essential concept clear.

In a case in one state, forensic engineer A performed a basic test for lawyer client. The test yielded results. A verbal report was given as to the results and an invoice for services submitted for the testing. There was an argument about the bill and the client refused to pay. Forensic engineer A resigned from the case. No written technical materials were released by the forensic engineer.

The lawyer retained a second forensic engineer B who was acquainted with forensic engineer A. After being briefed by the client, forensic engineer B called engineer A on the phone and had a detailed discussion about the case without revealing that he had been retained to work on it. The discussions turned to the results of the testing, including the data recorded from a vibrating table test. After the phone call, forensic engineer B felt he had adequate data from the conversation to give an opinion on the case, and he did so.

At trial, forensic engineer B attempted to introduce the evidence that he had obtained over the phone from forensic engineer A as evidence used as the basis of an opinion by an expert. There was an immediate objection that the phone conversation was not such evidence as is reasonably relied on by experts in the field. The court agreed.

Testimony by an opposing expert established that for testing on a vibrating table, the data were produced in tabular form, were lengthy, and could be misinterpreted in a phone call. In addition, opinions given would have to be checked against the data. There was no way that a proper cross-examination could take place because the data were not available. Because the information could not be used for the limited purpose of showing the basis for the expert opinion, it had to be admitted, if at all, as hearsay. However, the proponent had not shown that the testimony satisfied any hearsay exception.

Comment

An attorney is not permitted to use one expert as a conduit for filtering a second expert’s hearsay on the same topic to the jury.

This is an interesting case for a forensic engineer. We can all identify with what happened. The forensic engineer and his client both fell into the trap of believing that technical data passed verbally without documentation and a proper foundation for the introduction of the evidence were adequate for an opinion.

Most of the hearsay exceptions are set out in Federal Rules 803 and 804. However, there is a residual or catch-all exception in Rule 807. Rule 807 reads:

A statement not specifically covered by Rule 803 or Rule 804 but having equivalent circumstantial guarantees of trustworthiness is not excluded by the hearsay rule if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purpose of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent’s intention to offer the statement and the particulars of it, including the name and address of the declarant.

Committee Note: This rule transfers identical provisions Rule 803(24) and Rule 804(b)(5) to a new Rule 807 to reflect the organization found in the Federal Rules of Evidence. No substantive change is intended. This rule is the federal rule, verbatim.

Hearsay is strongly suggested when

• a witness is asked to tell what someone else said,

• a witness is asked to tell what he/she said at another time or place,

• a writing is offered, or

• during the witness’s testimony, the witness relates what he/she read, heard, or said elsewhere.

The hearsay rule is an exclusionary rule based on good common sense. The primary concern is that the proponent of the statement is not available for cross-examination. Expert testimony by a forensic engineer is presented in court and does not meet the definition of hearsay. Therefore, it need not fall within any hearsay exception listed in Rules 804, 804, or 807 to be admissible. Most of the hearsay exceptions are set out in Federal Rules 803 and 804. However, there is a residual or catch-all exception in Rule 807. Rule 807 reads, however, according to Federal Rule of Evidence 703, forensic engineering experts may rely on hearsay if it is of a type reasonably relied upon by experts in the particular engineering field.

Case Studies

The following is a series of case studies illustrating the various types of evidence. Each case is a summary of the salient features pertinent to the study of evidence. After finishing this section, the reader will have seen practical applications in which the concepts of evidence are explained using examples.

Case Study: The Testimony of a Witness to a Semi/Car Accident

This case study illustrates all three main forms of evidence: substantive, demonstrative, and evidence used as the basis of opinion by an expert.

A witness was filling her car with gas at a service station. A simulated view of the service station is shown in Fig. 1.3. In this personal injury case, ⁵⁹ the witness testified that she heard an accident at an intersection 832   feet away, behind her.

A portion of the direct testimony ⁶⁰ at trial of the witness shown in Fig. 1.3 was as follows:

Figure 1.3 Service station with witness filling car (simulated).

Following this direct testimony, the cross-examination ⁶¹ went as follows: