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The general rule in North Carolina has been that unless an accident reconstruction expert actually observes an accident, the expert may not testify as to the speed a particular vehicle was traveling before a collision. Hoffman v. Oakley, 647 S.E.2d 117, 121 (N.C.App., 2007) An accident reconstruction expert could testify about established principles of engineering and physics as well as the existence of signs, skid marks and conditions found at the scene of the accident, including damage to the vehicles involved. However, the expert could not provide testimony as to specific speed that the vehicles were traveling.

A recent amendment has been made to Rule 702 of the North Carolina Rules of Evidence. This amendment adds Rule 702(i) which provides "a witness qualified as an expert in accident reconstruction who has a performed a reconstruction of a crash, or has review the report of investigation with proper foundation, may give an opinion as to the speed of the vehicle even if the witness did not observe the vehicle moving."

The applicability of this new rule to any particular case is determined by the date that the accident occurred. Expert opinions specifically relating to speed will only be admissible in civil cases for claims that have arisen after December 1, 2006. In all cases in which an accident occurred prior to December 1, 2006, the unamended rule will apply, even if the action is filed after December 1, 2006.

The above referenced rule only affects the admissibility of expert testimony relating to speed. A lay witness has always and continues to be able to testify as to his or her opinion of the speed of a vehicle, provided that the lay witness had "a reasonable opportunity to observe the vehicle and judge its speed." McNeil v. Hicks, 119 N.C.App. 579, 581, 459 S.E.2d 47, 48 (1995). The trial court must also consider the "intelligence and experience" of the witness in determining whether there was a reasonable opportunity to judge the speed of the vehicle. State v. Grice, 131 N.C.App. 48, 57, 505 S.E.2d 166, 171 (1998).

By: Leila Rogers, October 1, 2008

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