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State v. Byard

Superior Court of Delaware

May 1, 2018

STATE OF DELAWARE,
v.
KWAREASE A. BYARD, Defendant.

          Submitted: April 25, 2018

         Upon the Defendant's Motion to Exclude Expert Testimony

          Michael B. DegliObizzi, Esquire, Department of Justice, Wilmington, Delaware, Attorney for the State

          Michael W. Modica, Esquire, Wilmington, Delaware, Attorney for Defendant

          OPINION

          The Honorable Mary M. Johnston Judge

         FACTUAL AND PROCEDURAL CONTEXT

         The Court held a Daubert hearing on April 25, 2018. The hearing concerned the admissibility of data collected from a car's crash sensing device, more commonly known as an Event Data Recorder ("EDR"). This is an issue of first impression in Delaware.

          The Defendant, Kwarease Byard, is alleged to have been in a one car accident. In connection with that accident, Byard was charged with assault, reckless driving, speeding, driving during suspension, and failure to show proof of insurance. In advance of trial, the State notified Byard that it intended to introduce the expert testimony of Corporal Joseph Aube of the Delaware State Police. Aube is expected to testify that the data recovered from the EDR demonstrates the speed Byard was traveling immediately before the accident.

         Byard has moved for the exclusion of this testimony absent a showing by the State that the EDR evidence is sufficiently reliable to be admissible under the Delaware Rules of Evidence.[1]

         ADMISSION OF EXPERT TESTIMONY STANDARD

         The Delaware Supreme Court has adopted the Daubert standard to determine the admissibility of expert testimony.[2] Under this standard, the Court asks whether: (i) the witness is "qualified as an expert by knowledge, skill, experience, training or education;" (ii) the evidence is relevant and reliable; (iii) the expert's opinion is based upon information "reasonably relied upon by experts in the particular field;" (iv) the expert testimony will "assist the trier of fact to understand the evidence or to determine a fact in issue;" and (v) the expert testimony will not create unfair prejudice or confuse or mislead the jury.[3]

         When assessing the second factor of the Daubert standard-the reliability of the expert's opinion-trial courts consult a non-exclusive list of four more questions: (1) whether the opinion at issue is susceptible to testing and has been subjected to such testing; (2) whether the opinion has been subjected to peer review; (3) whether there is a known or potential rate of error associated with the methodology used and whether there are standards controlling the technique's operation; and (4) whether the theory has been accepted in the scientific community.[4]

         ANALYSIS

         Though the admissibility of data retrieved from an EDR is a question of first impression in Delaware, several other jurisdictions have considered the issue. It would appear that EDR evidence has been admitted in every instance in which it was challenged. The majority of these cases, however, reached this conclusion under the Frye, rather than the Daubert standard. Nonetheless, these cases are instructive. The Frye standard's sole focus-the general acceptance of the evidence in the particular field in which it belongs[5]-is analogous to Dauberfs inquiry into the acceptance of the subject of the testimony within the scientific community. These Frye cases uniformly declare that EDR evidence is generally accepted as reliable, primarily because the EDR's underlying technology is not novel.[6]

         The Court has located only three appellate cases that did not analyze the admissibility of EDR evidence under Frye. Though well-reasoned, two of the three cases do not walk the same path through Daubert that this Court must under Delaware law.

         The first of these two cases is Commonwealth v. Zimmerman, [7] a case decided under Massachusetts law. The Supreme Judicial Court of Massachusetts has "accept[ed] the basic reasoning of Daubert because it is consistent with [Massachusetts'] test of demonstrated reliability."[8] That test, however, is more akin to a Frye-Daubert hybrid than a Delawarean wholesale adoption of Daubert. In Massachusetts, the proponent of the evidence "may lay a foundation by showing that the underlying scientific theory is generally accepted within the relevant scientific community, or by showing that the theory is reliable or valid through other means."[9]

         In Zimmerman, the Appeals Court of Massachusetts applied this hybrid test in affirming the trial's court decision to admit EDR data. The Appeals Court explained that the expert testified:

that the technology behind the EDR had been known for many years; that he and others had tested the speed of motor vehicles by other methods to compare information provided by the EDRs and had found the EDRs to be reliable; that EDRs need no maintenance and calibration for ten years; and that his calculations based on the physical and other evidence in this case were consistent with the EDR data from the defendant's vehicle.[10]

         However, the trial court "did not refer to the alternate prongs" of Massachusetts' hybrid test in its decision, leaving the appeals court to conclude that the trial court only "implicit[ly]" decided that the expert's testimony indicated EDR data's "validity, "[11] unfortunately without providing any substantive analysis. The appeals court went on to affirm the admissibility of the EDR data on the alternative ground that there was " general acceptance of data from motor vehicle crash recorders in the relevant scientific community."[12] Though Massachusetts is ...


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