Friday, March 28, 2008
The Accidental Expert: Missouri Court Finds Accident Reconstruction Report Partially Based Upon Hearsay To Be Inadmissible
According to the Court of Appeals of Missouri's recent opinion in State v. Bybee, 2008 WL 762224 (Mo.App. W.D. 2008), an accident reconstructionist cannot base a report or testimony upon the statements of eyewitnesses. In Bybee, Steven Bybee was convicted of involuntary manslaughter and two counts of assault in the second degree. These convictions were based upon a 2004 single car crash in which the then 16 year-old Bybee was allegedly the driver and one passenger was killed while Bybee and two other passengers were seriously injured. After the accident, Bybee denied being the driver of the car, but Bybee was given a blood sample, and testing indicated that he had a blood alcohol level of .079%.
Sergeant Brown of the Missouri Highway Patrol later conducted an accident reconstruction analysis of the crash. He determined that the car had been traveling at a minimum of 100 miles per hour when the right tires briefly went off the side of the road, the driver steered abruptly left and then overcorrected to the right, the car began to spin off the right side of the road until it hit a driveway embankment, the car went airborne at 91 miles per hour, and the car then rolled over 300 feet. In his report, Brown repeatedly referred to Bybee as the driver of the car.
On appeal, Bybee claimed that the trial court erred in admitting this reconstruction analysis into evidence because Brown's conclusion that Bybee was the driver of the car was based solely upon the hearsay statements of the other passengers. The Court of Appeals of Missouri agreed, finding that, with rare exception, an expert may not give an opinion based on hearsay. The court did note that Missouri law allows for experts to testify based upon inadmissible evidence such as hearsay if it is of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and otherwise reasonably reliable. The court, however, cited to previous cases such as Edgell v. Leighty, 825 S.W.2d 325, 328-29 (Mo. App. S.D. 2004), where Missouri courts had found that eyewitness hearsay testimony did not provide a foundation sufficiently reliable to support the admissibility of accident reconstruction reports.
The court found further support in the Advisory Committee Note to Federal Rule of Evidence 703, which, like Missouri law, allows expert opinions and reports to be admissible if they are based upon inadmissible evidence if that evidence is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." The Advisory Committee Note to Rule 703, however, indicates that this "language would not warrant admitting in evidence the opinion of an 'accidentologist' as to the point of impact in an automobile collision based on statements of bystanders, since this requirement is not satisfied." Based upon this Note and previous Missouri case law, it seems to me that the Court of Appeals of Missouri reached the correct decision.