By Jordan W. Charness

In the late 1990s, automakers began to install “Black Boxes” in some of their vehicles to collect information about certain driving habits of the people who purchased their cars. These Black Boxes, technically known as event data recorders, are part of the airbag control system and they are designed to supply the manufacturer of the car with critical information about what the vehicle was doing when its airbag deployed. That’s all it was designed to do.

Nonetheless, the information that was recorded in a Black Box in an accident was used to help convict a driver of dangerous driving causing death.

In this particular case there were no eyewitnesses aside from the driver of the vehicle who could testify as to what happened. The driver of the second vehicle was killed in the crash. The survivor claimed that the other driver had gone through a red light and that he was driving normally when he smashed into the other car. The Crown did not believe him and charged him with dangerous driving and with criminal negligence.

In many incidents of this nature there are no surviving witnesses or other eyewitnesses who can tell the police what happened and who caused the crash. The surviving driver often has no interest in telling what happened since it could get him into trouble. At that point it is left to the skilled police detectives to piece together the available evidence and form a picture of what happened on that day.

The key evidence is usually the length of the skid marks left by the cars as well as the position of the vehicles at the end of the crash. The forensic investigators can use this and other information to come up with a fairly clear idea of whether or not someone should be criminally charged for causing the accident. In this case however, there were no skid marks. There were other clear indications that at least one of the cars was moving very quickly at the time the crash.

Knowing that the Black box existed and could be of assistance, the police investigators examined the information it contained and sought to introduce it as evidence in the criminal case against the driver. The driver’s attorneys asked the court not to accept the introduction of this information into evidence and a three-day mini hearing on the legality of Black Box information was held before the judge. In the end the judge decided to allow the information contained in the Black Box to be used at the trial. Not only was it used, it was one of the key elements that led to the driver’s conviction.

This raises some serious technical and legal questions. In the first place, the Black Box was not designed to be used as a tool for law enforcement. It was designed to be part of the airbag control system and to record the car’s speed, its engine speed, brake application, the throttle position, and whether or not seat belts were fastened in the five seconds before the airbag deployed. The reason for its design and installation in cars was to help manufacturers create safer airbags and restraint systems.

In this case, the judge allowed a machine that was designed for another use to be used as evidence that could send a person to jail.

In our legal system, most evidence is given by people through their testimony. The judge can appreciate the quality of the testimony and opposing counsel may cross-examine the witness.

There are some machines that are given the stature of valid legal evidence in criminal trials. These include breathalyzers and radar or laser machines. In both of these instances only specific machines that are on an approved list of well-tested devices may be used to introduce this type of evidence into court. In addition they were designed specifically for law enforcement use and must be run by a trained operator who is licensed in that particular make and model of machine.

The technician must be available for cross-examination and must testify that he or she has checked the machine to be sure that it was functioning properly at the time of the test. After all, people’s rights are at stake and the possibility that they will be sent to jail looms large over the whole issue.

On the other hand, the Black Boxes that are installed in cars when they are manufactured are neither checked before or during their use at the time of an accident to make sure that it was operating correctly. Black Boxes that were installed at the end of the 1990s will have been in a car for four or five years and have recorded and deleted hundreds of thousands of five second blocks of information. Who’s to say that at the time of an accident it was working perfectly? Was it working well enough to send a person to jail?

There are also privacy issues to be looked at. If the Black Box is part of our car, then it belongs to us and should not be released to police to use against us. In addition most people don’t know that they have a Black Box in their car watching and recording what they do.

For these reasons the American Civil Liberties Union has called the use of the Black Box “a gross invasion of privacy akin to a Big Brother (of Orwellian fame) in the car.” The State of California has a law qualifying just how information in a Black Box can be used and by whom.

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