In the spring of 1993, Judge Ted Duncan, Joe Laraia, and I gave a presentation to the DuPage County Bar Association regarding accident reconstruction. The essence of the presentation was the necessity of laying the proper foundation for reconstruction testimony in various areas of law. At that time, it was a rather novel concept to provide a computer simulation of a collision or other significant event. Simulations have now become the norm in major civil trials.
I set forth the necessary elements to lay a foundation for reconstruction. Although the technology has changed, the basics of laying a foundation have not. However, when we discuss utilization of technology in simulations, “unmanned aircraft systems,” i.e., drones, are now relevant to areas of litigation that were unforeseen. For example, drones may now be utilized in matters involving invasion of privacy, surveillance, dissolution proceedings, trespass, neuroscience, fire origin, automobile collisions, and other areas unthought of in the past. As a trial attorney, one must be prepared for presentation of such evidence.
In the fall of 1992, Mr. Laraia and I were fortunate enough to have the cooperation of an accident reconstructionist who was in the forefront of computer re-enhancement. At that time, as far as potential litigation, we discussed the basics of foundation for computer simulation. Various matters were provided, including the following:
• Discretion relative to the points selected for a field leading to contours in the occurrence
• Topography and aerial observation creating an accurate scene; this includes inputting information into the computer that are identical to the grid for the occurrence
• Potential biases for the program that is being utilized
• The thought process that the computer is being told to connect dots or lines, called vectors; this included discretion by the programmer as to what vectors were created, i.e., what bias was utilized for input
• The fact that the program lays a skin on a grid in colors. This was a camera view at a point of time at 1/30 x a second. This was static, not moving. The program automatically gave it color and shading.
• The input provided could determine the light source, i.e., daylight, night, and weather
• Objects surrounding the occurrence
• Movements surrounding the event
• The crushability of the vehicles involved
• The view selected for the simulation. These were the significant considerations for the broad spectrum of cases, with each case varying as to each criteria
At that time, considering that a party may introduce this type of evidence, the question became how that presentation would be attacked via cross-examination. First, there is the issue of qualifications. Is the individual who presented the simulation qualified not only as to the simulation, but also as to background in the area involved, be it reconstructionist, engineer, etc. Second, and most importantly, what input was discretionary? In other words, were the materials inputted for creation of the simulation credible or biased?
In light of technology, computer enhancement and simulation have become normal and customary. However, with the advent of unmanned aircraft systems, i.e., drones, there are new factors and considerations. In preparation for this article, I met with the experts at Professional Analysis and Consulting located in Naperville, Illinois. The individuals who met with me included Roch J. Shipley, Ph.D., FASM, P.E., Michael G. Koehler, Ph.D., Timothy M. Hicks, P.E., and John W. Kidd, Director of Field Services. Hours were spent watching drones conducting a demonstration. This included flyovers, potential monitoring, reconstruction, and general surveillance. The detail of the film footage was much more definitive and distinct. In addition, what previously took hours, now takes minutes. Subsequently, I came to the conclusion that the bases for admission into evidence for trial is, in essence, the same as it was in 1993. Also, at the time of writing this article, I did not find an Illinois statute regarding restrictions on unmanned aircraft in Illinois as it pertained to civil matters. However, there is a slight limitation as to criminal matters, as stated in 725 ILCS 167/1, et seq., (2014). There are questions as to whether the local, county, state, and federal governments must permit or sanction a drone before its use. There is no clear answer to this question in Illinois. Accordingly, I refer you to the basic cases in accident reconstruction, those being:
• Miller v. Pillsbury, 33 Ill.2d 514 (1965)
• Plank v. Holman, 46 Ill.2d 465 (1970)
• McGrath v. Rohde, 53 Ill.2d 56 (1972)
• Olson v. Bell Helmets, 195 Ill.App.3d 20 (1st Dist. 1990)
• Rios v. Navistar, 200 Ill.App.3d 526 (1st Dist. 1990)
• Colonial Trust v. Kasman, 190 Ill.App.3d 967 (3rd Dist. 1989)
• Strickland v. Chapman, 197 Ill.App.3d 385 (5th Dist. 1990)
• Augenstein v. Pulley, 191 Ill.App.3d 664 N.E. (5th Dist. 1989)
• Ketchum v. DuraBond Concrete, 179 Ill.App.3d 820 (2nd Dist. 1989)
The summary of these cases states the rule that is a two part test for admissibility of the evidence as to an expert who may testify: (1) is the expert qualified in the field; (2) will the expert’s testimony aid the fact finder in the resolution of the dispute?
This test was commonplace until computer simulations became involved, then the main case relied upon was that of Watkins v. Schmitt.1 To summarize, Watkins basically held that only reliable computer simulations could be utilized at trial. Those that were shown to be “garbage in, garbage out” were inadmissible. In other words, if an individual provided unreliable data into the program, the results of the computer simulation would be inadmissible. This, however, was substantially changed by the case of Turner v. Williams.2 This case involved that of an automobile collision where the defendant proffered the testimony of a reconstruction expert whose testimony was barred due to unreliability. The Second District reversed, stating that the opinion testimony of an expert is admissible if an expert is qualified by knowledge, skill, experience, training or education, and has “at least a modicum of reliability,” and the testimony would assist the jury. Although the expert’s opinion is only as valid as the reasons for the opinion, if the information provided to the expert is reliable, the expert’s opinion will be admissible. However, there must be sufficient data about the accident in evidence to provide the reasonable basis for the opinion. This is within the sound discretion of the trial court. If, however, the expert opinion is pursuant to Frye v. United States3, which allows for the admission of evidence when the scientific principle that forms the basis of the opinion has achieved general acceptance in the evidence’s particular field, then the court should admit the evidence. In other words, basically everything will be admitted.
The above raises the question as to the admissibility of drone simulation. The operator of the drone still inputs the information to the drone as to what the drone is to observe and where it is to go. In other words, the operator controls the focus of the drone. After the drone obtains the information input by the operator, the information is then transferred to a reconstruction expert, if necessary. Otherwise, in cases such as invasion of privacy, surveillance, and those mentioned in the initial paragraph of this article, it may stand alone. However, if a simulation is necessary, there will, in all likelihood, be two experts required. Both must testify as to their input and opinions, and their testimony must be based upon the factual evidence that is to be presented at trial through witness testimony. There must be an accurate chain of evidence trail presented. If not, there may be an attack upon which cross-examination can proceed, or a motion in limine.
To summarize, I believe the basic principles of reconstruction and foundation apply to the utilization of drones. Nonetheless, this is evolving. I anticipate a great deal of legislation as time proceeds, and frankly, I think the courts will be ahead of the legislative process. It is, therefore, essential that in whatever area you practice, you understand the great effect drones may have upon your case, both beneficial and detrimental, and how to utilize said information.4
1. 172 Ill.2d 193, 665 N.E.2d 1379 (1996).
2. 326 Ill.App.3d 541 (2nd Dist. 2001).
3. 293 F.1013 (D.C. Cir. 1923)
4. Once again, I wish to thank the individuals from Professional Analysis and Consulting for their assistance as to preparation of this article. They provided their time voluntarily and without limitation.
T. Patrick Rice received his JD from John Marshall Law School and is a past president of the DuPage County Bar Association. Pat concentrates his practice in claims involving personal injury, wrongful death, medical malpractice and other incidents that cause harm. He has conducted over one hundred jury trials concerning civil law matters.