Could He See In The Dark? (or Conspicuity Issues)

A few weeks ago, I discussed a case in which night visibility evidence was addressed and the testimony of an expert was excluded. The following is follow up to that post, giving you some ideas on issues to cover to lay a foundation for Daubert challenge.
The trial court is charged with a”gatekeeping responsibility” to ensure that all expert testimony is “not only relevant, but reliable.” The factors to be considered by the trial court in determining whether the reasoning or methodology underlying an expert’s testimony is scientifically valid and can be applied properly to the facts at issue include: 
1. The “testibility” of the expert’s theory or technique;

2. . Whether the theory or technique has been subjected to peer review and publication;
The known or potential rate of error; and
3. Whether the methodology is generally accepted in the scientific community.

“Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgment–often of great consequence–about a particular set of events in the past. We recognize that in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.”

If an expert has never performed any night visibility study, how can he make a determination as to what drivers should or should not have seen? There is no way to test the reliability of his methodology for reaching his conclusions, because he did not employ any such methodology. Accordingly, the “methodology” does not meet the reliability standards set forth in Daubert and Foret. Therefore, it is impossible to determine whether his opinions and conclusions were formed in a scientifically credible manner or are nothing more than speculation and conjecture unsupported by reliable scientific evidence.
The following are just a few foundational questions that may be useful in evaluating if night visibility photography can pass muster in a Daubert challenge.

1. When were you called out the accident site?

2. When did you come upon the scene of the accident?
3. What time?
4. Did you personally observe the vehicles from the same angles as is depicted in the photographs on the night of the accident?
5. Do these photographs accurately depict the condition of the vehicles on the night of the accident?
6. On what date were the photographs taken?
7. Who took the photographs?
8. Under whose direction where these photographs taken? For what purpose were these photographs taken?
9. What were the lighting and weather conditions when the photographs were taken?
10. What time of day were the photographs taken?
      Were the photographs taken at twilight?
      Were there stars or was the moon visible?
11. Any other details of what could be seen:
12. How many photographs were taken?
13. What was the condition of the highway at the time the photographs were taken?
14. What was the condition of the tractor when the photographs were taken?
15. What was the condition of the trailer when the photographs were taken
16. What distance from the truck and at what angle were the photographs taken?
17. What distance from the ground was the camera when the photographs were taken?
18. Do the photographs depict the truck and the conditions as you observed them at the scene of the accident?
18. Do the photos accurately depict the tractor and trailer as you saw it when the photographs were taken?
Of course, there are many more relevant questions in a given situation, but this gives you a few ideas to use. I hope you continue to find some value from this blog and will encourage others to read it and join if there are relevant discussions for you.
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Daubert, 509 U.S. at 597, 113 S. Ct. at 2798.


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