State v. Shabazz
| Decision Date | 21 November 2005 |
| Docket Number | DOCKET NO.: 05-03-00372-I. |
| Citation | 946 A.2d 626,400 N.J. Super. 203 |
| Parties | STATE of New Jersey, Plaintiff, v. Larry R. SHABAZZ, Defendant. |
| Court | New Jersey Superior Court |
Bruce Holmes, Assistant Prosecutor for plaintiff.
Joseph P. Depa, Jr., for defendant.
The State filed a motion for a Rule 104 (N.J.R.E. 104) hearing regarding the admissibility of automobile "black box" evidence. It is asserted by the State, in this death-by-auto charge, that the vehicle driven by defendant at the time of the collision was equipped with what is commonly known as a "black box," or a computerized data recorder. This "black box" is similar to the data recorder in the aeronautic industry that is often sought after an airplane crash to determine various items of data, to wit; altitude, latitude, speed, and other mechanical operation data within the aircraft. The State seeks to introduce into evidence the data recorded, together with expert witness testimony to prove an element of the crime charged. To prove death by auto under N.J.S.A. 2C:11-5, the State must establish the following elements:
1) Defendant was driving an automobile, (a "means of conveyance propelled otherwise than by muscular power"
2) The motor vehicle caused the death of the victim, and
3) Defendant operated his vehicle recklessly.
It is undisputed that the vehicle in question was an automobile and was operated by defendant, and that on September 14, 2004, the vehicle, a 2003 Hummer H2, ran over a Honda Civic from the rear, while the victim was stopped for a red light on an off-ramp of Route 278. The victim was pronounced dead at the scene. To prove the third element of the crime, recklessness, the State seeks to introduce into evidence the data retrieved from the "black box."
The prosecution, pursuant to a warrant issued on November 17, 2004, seized the "black box" in defendant's vehicle and had the recorded data retrieved by a New Jersey State Trooper, utilizing download equipment. The data downloaded purported to show that defendant's vehicle was operating at seventy-six miles per hour within five seconds prior to the accident and at sixty-seven miles per hour at the time of impact. Additionally, the data purported to show that the brakes were not applied until zero-to-one second before impact, and that there were no mechanical defects in the vehicle. It is the State's position that this scientific evidence is sufficiently reliable and trustworthy to allow it to be presented, through expert testimony, to a jury. This is a case of first impression in New Jersey regarding the use of this scientific data against a defendant in a criminal case.
The Rule 104 hearing was held on October 21, 2005, at which time the State presented one witness, W.R. Haight1, as an expert in accident reconstruction and data recording devices in motor vehicles. For the reasons stated below, the State's motion to permit the use of the "black box" data and expert testimony at time of trial is granted because the State has clearly established, by a high level of proof, the general acceptance of its technology in the automotive field, since it has passed from the experimental to the demonstrable stage.
Crash-sensing devices are commonly used throughout the automobile industry. They have multiple functions, including: (1) determining if a severe enough impact has occurred to warrant deployment of the air bag; (2) monitoring the air bag's components; and (3) permanently recording information pertaining to the operation of the vehicle. The crash-sensing device on General Motors (GM) vehicles is known as the Sensing and Diagnostic Module (SDM); these devices have been installed on GM vehicles since 1994.2 The SDM contains software that analyzes the deceleration of a vehicle to determine whether a deployment event (usually a crash) has occurred. When the SDM senses a deployment event, or a deceleration that is not severe enough to deploy an air bag (a near-deployment event), it records that information to the microprocessor's electrically erasable programmable read-only memory (EEPROM). Data that the SDM records includes:
(1) Vehicle speed five seconds before the deployment or near-deployment event;
(2) Engine speed five seconds before the deployment or near-deployment event;
(3) Brake status five seconds before the deployment or near-deployment event;
(4) Throttle position five seconds before the deployment or near-deployment event;
(5) Engine revolutions (RPM) at the time of the deployment or near deployment event;
(6) Status of the driver's seat belt switch (on or off) at the time of deployment or near-deployment event;
(7) Status of the brake switch (on or off) during the five seconds before the deployment or near-deployment event;
(8) Time from maximum deceleration to vehicle impact;
(9) Time from vehicle impact to air bag deployment;
(10) Maximum deceleration for a nondeployment event;
(11) Diagnostic trouble codes present at deployment;
(12) The time the deployment or near-deployment event occurred.
[Bachman v. GMC, 332 Ill.App.3d 760, 267 Ill.Dec. 125, 776 N.E.2d 262 (2002)]
On GM vehicles, the Vetronix Crash Retrieval System (CDR) consists of hardware and software that downloads pre-crash and crash data from the SDM to a laptop computer. Since mid-2000, the Windowsbased CDR software presents this data in easy-to-read graphs and tables. The CDR is known generically as an Event Data Recording device (EDR), or "black box."
New Jersey Rule of Evidence 702 governs the admission of expert testimony. The Rule provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact 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.
Three requirements must be met before expert testimony can be admitted:
[State v. Harvey, 151 N.J. 117, 169, 699 A.2d 596 (1997); (quoting State v. Kelly, 97 N.J. 178, 208, 478 A.2d 364 (1984)); N.J.R.E. 702, 1991 Supreme Court Committee Comment.]
It is not disputed that the subject matter is well beyond the ken of the average juror. For instance, someone would need to understand both the precision and accuracy of an EDR in order to be knowledgeable about the reliability of the data taken from it. In order to understand precision, someone would need to know the basic operation and data collection capabilities of the device.3 In order to understand accuracy, one would need to know, among other things, about the sources of potential error in EDR devices, their physical memory limitations, and how the data collected from crash tests differs from data collected from "real world" crashes. One can assume few individuals possess such knowledge.
The qualifications of the State's expert are not in dispute. He has given expert witness depositions, affidavits and/or trial testimony in Arizona, California, Connecticut, Georgia, Michigan, Missouri, New York, Pennsylvania, ^Texas, Washington, Australia and Singapore. He is also one of two experts in the country certified to teach classes on data recorders placed into newer vehicles. Haight appears to have sufficient expertise to explain the intended testimony.
The remaining factor is whether EDR technology is at a state of the art such that an expert's testimony could be sufficiently reliable to present to the jury. N.J.R.E. 703 provides:
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.
State v. Kelly, supra, 97 N.J. at 209, 478 A.2d 364. In criminal cases, the Supreme Court of New Jersey applies the general acceptance or Frye test for determining the scientific reliability of expert testimony:
[W]hile courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs.
[State v. Harvey, supra, 151 N.J. at 169, 699 A.2d 596 (citing Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (D.C.Cir.1923)).]
Although general acceptance does not require complete agreement over the accuracy of the test or infallibility, it encompasses "an extraordinarily high level of proof based on prolonged, controlled, consistent, and validated experience." Rubanick v. Witco Chem. Corp., 125 N.J. 421, 436, 593 A.2d 733 (1991).
New Jersey courts recognize three ways the proponent of expert testimony can prove general acceptance of a new field or technique, and thereby, its reliability:
(1) by expert testimony as to the general acceptance, among those in its profession, of the premises on which the proffered expert witness based his or her analysis;
(2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and
(3) by judicial opinions that indicate the expert's premises have gained general acceptance.
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...Mass.App.Ct. 357, 873 N.E.2d 1215 (2007) ; Matos v. State , 899 So. 2d 403 (Fla. 4th Dist. Ct. App. 2005) ; State v. Shabazz , 400 N.J.Super. 203, 946 A.2d 626 (Ct. Law Div. 2005) ). Such evidence may be subjected to rigorous cross-examination at trial. See, e.g., In re Melton , 597 A.2d 89......
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Vitela v. State
... ... collision case, for example, is not new or novel. See ... id. (citing Commonwealth v. Zimmermann , 873 ... N.E.2d 1215 (Mass. App. Ct. 2007); Matos v. State , ... 899 So.2d 403 (Fla. Dist. Ct. App. 2005); State v ... Shabazz , 946 A.2d 626 (N.J.Super. Ct. Law Div. 2005)) ... Such evidence may be subjected to rigorous cross-examination ... at trial. See, e.g., In re Melton , 597 A.2d 892, ... 903-04 (D.C. 1991). But objections to its reliability will ... most likely go to the weight of the ... ...
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Vitela v. State
... ... Introducing black box evidence in a ... collision case, for example, is not new or novel. See ... id. (citing Commonwealth v. Zimmermann, 873 ... N.E.2d 1215 (Mass. App. Ct. 2007); Matos v. State, ... 899 So.2d 403 (Fla. Dist. Ct. App. 2005); State v ... Shabazz, 946 A.2d 626 (N.J.Super. Ct. Law Div. 2005)) ... Such evidence may be subjected to rigorous cross-examination ... at trial. See, e.g., In re Melton, 597 A.2d 892, ... 903-04 (D.C. 1991). But objections to its reliability will ... most likely go to the weight of the ... ...
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...a "black box"); Commonwealth v. Zimmerman, 873 N.E.2d 1215, 1217-18 (Mass. App. Ct. 2007) (discussing EDRs); State v. Shabazz, 946 A.2d 626, 628 (N.J. Super. Ct. Law Div. 2005) (referring to GM's CDR system); Bachman v. General Motors Corp., 776 N.E.2d 262, 280-83 (Ill. App. Ct. 2002) (anal......