RECONSTRUCTION EVIDENCE

1. RECONSTRUCTION EVIDENCE Judge Lynn M. Egan Mr. Gary W. Cooper March 28, 2014

2. WHAT IS IT? “Reconstruction testimony attempts to recreate the accident.” Wade v. City of Chicago Heights , 295 Ill.App.3d 873 (1st Dist., 1998) IT INCLUDES: • Point of Impact • Who hit whom & how fast the parties were going • Where plaintiff’s body impacted with defendant’s auto

3. Who Is Qualified To Offer Such Evidence? An individual will be allowed to testify as an expert if: • Hisexperience & qualifications afford him knowledge that is not common to laypersons AND • Such testimony will aid the trier of fact in reaching its conclusions.

4. KEY POINTS ABOUT EXPERTS • Need only have knowledge & experience beyond that of the average citizen. • No predetermined formula for how an expert gains specialized knowledge or experience. Can be through practical experience, scientific study, training or research. NOTE: Academic qualifications NOT mandatory. The lack of such training only goes to weight, not admissibility of the testimony. Same for Illinois licensure.

5. WHEN IS RECONSTRUCTION TESTIMONY APPROPRIATE? • When the expert is qualified in the field & the testimony will assist the jury. (This is true for both civil & criminal cases.) • The testimony will assist the jury “ONLY when it is necessary to rely on knowledge & application of principles of physics, engineering, & other sciences beyond the ken of the average juror.” Watkins v. Schmitt, 172 Ill.2d 193 (1996)

6. FACTORS TO CONSIDER: • The complexity of the subject involved; • The purpose for which the opinion is offered; • Its relation to the ultimate issue to be determined; • The danger of unfair prejudice Wade v. City of Chicago Heights, 295 Ill.App.3d 873 (1st Dist., 1998)

7. WHAT IF EYEWITNESS TESTIMONY IS AVAILABLE? DOESN’T MATTER… So long as the expert offers “knowledge & application of principles of science beyond the ken of the average juror.” Zavala v. Powermatic, Inc., 167 Ill.2d 542 (1995). See also, Watkins v. Schmitt, 172 Ill.2d 193 (1996).

8. WHAT DOES MATTER? That the expert reconstruction testimony be of ASSISTANCE to the jury in making the necessary factual determinations. Importantly, this is NOT synonymous with being necessary for the jury to reach a verdict. Augenstein v. Pulley, 191 Ill.App.3d 664 (5th Dist., 1989).

9. THE EXCEPTION TO THE RULE:OPINIONS ABOUT SPEED The Illinois Supreme Court has unequivocally declared that “the speed of an automobile is not a matter beyond the ken of the average juror.” Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353 (1979). WHY? Because jurors do not need “specialized knowledge in engineering or to perform scientific calculations to estimate the speed of an automobile.” Watkins v. Schmitt, 172 Ill.2d 193 (1996).

10. FOUNDATION REQUIREMENTS Beyond the threshold requirements of expert qualifications & a finding that the testimony will aid the jury, the proponent of the testimony must also show: • The information upon which the expert bases his opinion is RELIABLE. This is a question of law & means the Court must be persuaded that there is a sufficient amount of physical evidence to provide the data necessary to reconstruct the occurrence.

11. COURT IS THE GATEKEEPER • Courts cannot “blindly” accept an expert’s claim that opinions have an adequate foundation. • Instead, courts “must look behind the expert’s conclusion & analyze the adequacy of the foundation.” Hudson v. City of Chicago, 378 Ill.App.3d 373 (1st Dist., 2008). Inadequate foundation = speculation = INADMISSIBLE

12. EVIDENCE PRODUCED BY COMPUTERS • Must distinguish between computer-generated vs. computer-stored information because the former is admissible but the latter is not unless a hearsay exception applies. Anderson v. Alberto-Culver, USA, 337 Ill.App.3d 643, 667 (1st Dist., 2003). NOTE: Merely because an expert’s computer analysis omits certain information elicited during discovery is not a reason to bar the expert’s testimony. Turner v. Williams, 326 Ill.App.3d 541 (2d Dist., 2001).

13. EXPERIMENTS • Experimental or reenactment evidence must reveal that the conditions of the experiment are substantially similar to the actual occurrence. • Conditions do NOT need to be identical, but must duplicate the “essential conditions” that existed at the time of the occurrence. First Midwest Trust Co. v. Rogers, 296 Ill.App.3d 416 (4th Dist., 1998). BUT… DON’T FORGET FRYE

14. FRYE CONCERNS • Basic accident reconstruction testimony does NOT need to satisfy Frye. • However, a unique computer analysis or experiment may result in a different conclusion. First Midwest Trust Company v. Rogers, 296 Ill.App.3d 416 (4th Dist., 1998)

15. INVADING THE PROVINCE OF THE JURY? • Expert testimony about an ULTIMATE issue in the case does not invade the province of the jury because the jury is not required to accept the expert’s opinion. People v. Terrell, 185 Ill.2d 467 (1998). See also, People v. Richardson, 2013 IL App (2d) 120119, ¶ 19. • Illinois Rule of Evidence 704: “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”

16. IF YOU READ ONLY 1 CASE READ THIS: Augenstein v. Pulley, 191 Ill.App.3d 664 (5th Dist., 1989)