A civil case decided by the court of appeals last week, Blackwell v. Hatley, addresses when a witness may testify as to his or her opinion of how fast a vehicle was traveling. In Blackwell, the court held that an accident report prepared by a town police officer estimating the defendant’s speed at the time of the crash was inadmissible because the officer had not seen the accident. The court likewise held inadmissible testimony about the defendant’s speed proffered by the plaintiff’s accident reconstruction expert on the basis that the expert had not seen the accident, which occurred in 2004. The date of the crash was significant with respect to the latter ruling as the court recognized that N.C. R. Evid. 702 was amended in 2006 to permit a witness qualified as an expert in accident reconstruction who has performed a reconstruction of a crash or who has reviewed the report of investigation, with proper foundation to give an opinion as to the speed of a vehicle—even if the witness did not observe the vehicle moving. See N.C. R. Evid. 702(i). Because the Blackwell accident occurred before the effective date of this provision (August 21, 2006), the court applied the rule from pre-amendment case law that permitted the admission of such evidence only if the expert witness saw the accident.
State v. Davis, ___ N.C. App. ___, 678 S.E.2d 385 (2009) demonstrates how Rule 702(i) applies in a criminal case involving a post-amendment crash. In Davis (discussed here), a state trooper who did not see the accident was qualified as an expert witness in accident reconstruction. Based upon his investigation, which included measurements and analysis of the weight of the vehicle in involved, the trooper testified as to his opinion of the speed the defendant’s vehicle was traveling just before the collision. See Defendant-Appellant’s Brief at 6; Brief for the State at 8, available here. The admissibility of this evidence was not challenged on appeal.
So, under current law, a witness qualified as an expert in accident reconstruction may, upon meeting other foundational requirements, give an opinion as to the speed a vehicle was moving, regardless of whether the expert saw the vehicle moving. Any other person may only testify as to his or her opinion of a vehicle’s speed if the witness saw the vehicle in motion.
What about lay witnesses? Can a person with no training in estimating speed testify about how fast a vehicle was moving? You betcha. The state supreme court has explained that “a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed.” Insurance Co. v. Chantos, 298 N.C. 246, 250, 258 S.E.2d 334, 336 (1979). Indeed, in Blackwell, the court held admissible testimony from two lay witnesses who saw the accident from across the street and estimated the defendant’s speed.
But wouldn’t evidence of speed based upon a radar reading be better? Not necessarily . G.S. 8-50.2 provides that the results of the use of “radio microwave, laser, or other speed-measuring instruments” are admissible as evidence of the speed of an object “for the purpose of corroborating the opinion of a person as to the speed of an object based on the visual observation of the object by such person.” Indeed, in State v. Jenkins, 80 N.C. App. 491, 342 S.E.2d 550 (1986), the court granted the defendant a new trial based upon the trial court’s intimation, in response to a question from the jury, that defendant could be convicted solely upon the radar measurement of his speed. The Jenkins court explained that “[t]he General Assembly has provided that the speed of a vehicle may not be proved by the results of radar measurement alone and that such evidence may be used only to corroborate the opinion of a witness as to speed, which opinion is based upon actual observation.”