The Stuntman as ExpertAuthor(s): John MerrittSource: Litigation, Vol. 9, No. 2, EVIDENCE (Winter 1983), pp. 36-37, 63Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29758771 .

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The Stuntman as Expert

by John Merritt Jurors inch up to the edge of their seats as the qualifica? tions of the expert are played before their eyes on television monitors: cars careen off a cliff, vault through the air across a fallen span of bridge, or crash into a semi-trailer; a motorcycle and its rider skid sideways on the pavement and roll end over end.

They then watch the same driver as he takes the plain? tiffs vehicle around a curve and into mid-air before it crashes. Thus occurs a strange marriage of law and

Hollywood razzle-dazzle: the Stuntman testifying as a re? creation expert.

This idea was born while I watched "Hollywood Stunt

Competition" on television and agonized over a personal injury file. The client needed to prove that a car could fly through the air a substantial distance even though it had not been speeding before takeoff. The experts were sure to

disagree and confuse the jurors. The plaintiff, a paraple? gic, was in danger of losing even though his story was true.

A convincing method of proof appeared on the televi? sion screen. Alan Gibbs, a Stuntman for such Hollywood actors as Burt Reynolds and Charles Bronson, shot

through the air at speeds like that of my client when his ac? cident occurred.

To put theories of physics into practical form and cap? ture the imagination of the jury in the process, I placed a call to the stunt association that represents most Holly? wood Stuntmen and located Alan Gibbs (who drove the Trans-Am in the movie Smokey and the Bandit). Two days later, Gibbs was on the scene of the accident to determine if the plaintiffs theories were practical realities. He de? cided they were and agreed to testify.

I was not sure whether Gibbs would be qualified to

testify, or, for that matter, on what basis to offer his

testimony. It would be most effective if the Stuntman could re-create the accident, but perhaps his evidence would be limited to a demonstration of the principles of physics.

Moreover, it was not clear whether an accident could be re? created. I discovered that Gibbs could indeed re-create the

The author is a partner in the firm of Buck, Merritt & Hoyt in

Oklahoma City.

accident and the Stuntman has now become a routine part of my demonstrative repertoire.

Judges welcome a fresh approach. All too often, they preside over an indeterminable struggle between the ex?

perts on either side. Re-creation of an accident turns

theory into reality and offers a reliable tool in the jury's search for truth.

Situations that might call for a stunt performer in? clude:

o Demonstrating the distance a car travels at certain

speeds after a crash; o Rolling a tractor to demonstrate rollover protec?

tion; o Crashing a car to demonstrate crashworthy

features or the need for additional safeguards; o Operating a vehicle while a steering or other com?

ponent is disconnected to demonstrate the trajectory of the vehicle;

o Putting a vehicle through its turning radius while it overturns to demonstrate its lateral instability;

o Operating a semi-trailer with a load creating a high center of gravity through a sharp curve to demonstrate its propensity to roll over; and

o Operating a boat in a sudden sharp turning move? ment to demonstrate the forces that throw an operator overboard.

Seldom are Stuntmen physicists or otherwise qualified by formal education to opine on the speed and trajectory of vehicles. They do have impressive practical experience with the dynamics of vehicles and other equipment. Although the camera sometimes exaggerates the dramatic effects of the stuntman's feats, his life is often on the line. As a result, the stunt performer has a strong interest in his technical skills and expertise, a fact that should be em?

phasized in qualifying a Stuntman. You should obtain film clips of feats performed by the

Stuntman, along with his professional movie and television credits. Play an edited videotape of the clips to the court on voir dire.

Stunt performers who are recognized as "stunt coordin? ators" have a qualifying advantage. Coordinators,

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although not physicists, plan stunts for movies and televi? sion. The planning involves consideration of the principles of physics. Coordinators may have a greater understand?

ing of the scientific principles than does an ordinary stunt

performer. The qualification of your expert depends not on the

stuntman's understanding of physics but on his practical experience. Over-qualifying the Stuntman in the science of

physics, in which he is not formally trained, will expose him to embarrassing cross-examination over textbook

principles of physics. At any rate, an expert's experience may qualify his

testimony even in the absence of formal training. One state court allowed, for example, as expert testimony, a drug user's opinion that a substance he and the accused had consumed was LSD. State v. Johnson, 54 Wis. 2d 561,196 N. W.2d 717,719 (1972). This expert qualified on the basis of some 130 LSD trips as well as observed actions of other users. The court said, "experience in some cases may be the more important element of expertise."

Similarly, mErvin v. Gulf States, Inc., 594 S.W.2d 134 (Tex. Civ. App. 1979, writref dn.r.e.), the court allowed a

witness to testify that the defendant in a personal injury suit appeared to have been smoking marijuana before the accident. The witness had used marijuana regularly for 24

years and "[w]as familiar with its smell, the characteristic appearance of marijuana cigarettes, and the manner in which they are generally smoked." 594 S. W.2d at 137. In

People v. Smith, 142 Cal. App. 2d 287, 298 P.2d 540 (1956), the court held a laboratory technician for 16 years qualified by his experience in the use of microscopes to

testify that fibers from the defendant's clothing matched those taken from the scene of the crime. With the proper preparation, these precedents should

help you qualify an experienced stunt coordinator to

testify about the handling characteristics of vehicles, after-crash movements, crush characteristics, and speed. You will have to decide whether to re-create the accident or demonstrate the principles of physics involved. You will find it easier to stage a demonstration of the scientific prin? ciples, and the court is more likely to admit a demonstra? tion. See Millers' National Insurance Co. v. Wichita Flour

Mills Co., 257 F.2d 93 (10th Cir. 1958). For example, a Stuntman could operate a car on a ramp at a predeter? mined speed and make the car catapult into the air to de? monstrate the distance it will travel under such conditions. Here there is no attempt to re-create the accident, but only to demonstrate that cars can travel airborne even at or?

dinary speeds. The court may exclude a re-creation. See Streit v.

Kestel, 108 Ohio App. 241, 161 N.E.2d 409 (1959). That should not discourage the trial lawyer convinced of the

validity of his physicist's reconstruction. Remember that it is not necessary that the re-creation portray what actual?

ly happened; it is sufficiently relevant if offered to show what could have happened. See Nordstrom v. White Metal

Rolling & Stamping Corp., 75 Wash. 2d 629,453 P.2d 619 (1969).

Thus the legal test for admissibility is a "substantial"

similarity of circumstances. See Streit v. Kestel, supra; Breimon v. General Motors Corp., 8 Wash. App. 747,509 P.2d 398 (1973). If the lawyer decides to offer a re

creation, great care must be taken to reproduce the occur? rence with substantial similarity. Any differences in the

roadway, vehicles, or other objects at the accident site must be carefully documented and explained at trial. If

fully explained to the court, differences like these will

generally not forestall the re-creation. See Lampley v.

Waygood, 57 Tenn. App. 610, 422 S.W.2d 708 (1967). In re-creations of automobile accidents, obtain

automobiles with the identical weight, center of gravity, suspension system, engine, transmission, and so on. Dif? ferences in color, trim, and seat coverings will usually be insubstantial, but the weight of the fuel could be import? ant. The identical roadway should be used, if possible, and any changes in the roadway identified.

The angles of collision can be determined by the posi? tions of the crashed vehicles. These angles can be repro? duced by tracks that guide the test vehicles into one another or by tape placed on the roadway. The tape guides the Stuntman, who drives along the marked path. The

speed of the vehicles should be determined from the

testimony. It will be a dramatic revelation to the jury to see two test vehicles travel a substantial distance after the crash when the opposing counsel's expert has already testified that such travel was a physical impossibility.

To prepare for our trial, we re-created an accident in?

volving the mother of a three year old. The mother had been killed on a motorcycle with defective handlebars. The case turned on whether skid marks found at the scene were those of the crashing motorcycle, as the plaintiff alleged,

The Stuntman crashed a

motorcycle as the cameras rolled* creating skid marks that were photographed*

or of another vehicle, as the police reported. For this trial

testimony, the Stuntman crashed a motorcycle while the cameras rolled, creating skid marks that were photo? graphed. The skid marks from the re-creation compared closely to those found at the scene. The case was settled before trial.

In another case, the defendants alleged that the distance traveled by the plaintiffs' vehicle after crashing into a concrete culvert proved that the plaintiffs had been

driving too fast. A stuntman crashed an identical vehicle into a culvert fashioned after the one in question. The crash angle was substantially the same. The re-creation showed no excessive speed.

If the re-creation fails to prove the plaintiffs theory of the case, you can probably avoid discovery. In most states and under the Federal Rules of Civil Procedure, experi? ments and tests carried out by private consultants to the

lawyer are work product and generally cannot be discov? ered until the consultants are identified as witnesses. Fed. R. Civ. P. 26.

The lawyer should employ a physicist. The physicist and (Please turn to page 63)

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these rules replaced, prior inconsis? tent statements did not serve as substantive evidence at all. Thus Pro? fessor Cleary, Judge Weinstein, and the Senate Judiciary Committee could declare that evidence admitted under Rule 801(d)(1)(A) need not support a verdict by itself.

All these rules render an implicit judgment about the value and dan?

gers of evidence of prior inconsistent statements. The creators of the federal rules recognized the dangers. In my opinion, Wigmore overstated the value of these statements. Ex? amination of the person who made the statement does not eliminate the

hearsay dangers of the evidence. Scholars like Wigmore have as?

serted that the right to cross-examine solves all hearsay problems. They have an oversimplified view of witness examination. In two ways, cross

examination of the maker of the prior inconsistent statement does not

equate to ordinary cross-examina?

tion. First there will have been no direct examination. Although lawyers sometimes ignore the rules of direct examination, a witness must or?

dinarily testify to a fact before he can be cross-examined. Under this rule, the evidence comes in on cross outside the scope of any direct examination. In other words, the witness might not have testified about the fact at issue on direct. The right of cross-exami? nation does not solve that problem.

Second, the cross-examination comes too late. Cross-examination at trial cannot destroy the out-of-court statement.

The witness is treated as if he were two witnesses?one outside the court? room and one inside. If you destroy the witness inside the courtroom, you have helped the witness outside the courtroom. Nothing that happens to the witness inside the courtroom can

prevent the jury's believing the witness outside the courtroom. If the examiner attacks the witness inside the courtroom with the usual devices and shows him untrustworthy, that

merely makes all the more likely the

jury's belief in the prior statement.

Exactly that happened in the Green case, both at the trial and when the

Supreme Court of California con? sidered the sufficiency of the evidence. A prior inconsistent state

ment had been used to convict the defendant Green. The witness Porter had first testified that Green had sup? plied him 29 baggies of marijuana that Porter picked out of the bushes at the home of Green's parents. That was at the preliminary hearing. At trial, Porter said he had taken LSD and could not remember the events. The opinion of the Supreme Court of California pointed out the trial

judge's reaction:

[T]he court expressed deep concern over the probative value of the

testimony of this youth "who comes in here and defies the Court and counsel with his nonresponsive, in? solent answers." In explaining his decision to find defendant guilty, the court again emphasized "the small probability attached to the veracity of this young renegade.

The California court upheld the

sufficiency of the evidence against Green. The deficiencies of the witness ?

destroyed only his in-court denials and not his proper accusation. The court said:

The evidence is not insufficient as a matter of law to support the finding of guilt: despite certain inconsis? tencies between Porter's

preliminary hearing testimony and his declaration of Officer Wade, both statements unequivocally identify defendant as his supplier of marijuana. Far from being themselves inherently incredible, the statements depict, as charac? terized by the Attorney General, "a

dismally common story" of the ex?

ploitation of youth for the purpose of peddling contraband drugs. Even discounting Porter's low level of credibility, the trial court could

properly conclude from all the evidence that "I am satisfied myself that Porter dealt with [the defen?

dant], used [marijuana,] and sold it. ..." 3 Cal.3d at 991, 92 Cal.

Rptr. at 500, 479 P.2d at 1004. It may have been proper to create a

hearsay exception for these state? ments. But this exception, like others, has weighed the danger of the evidence against its value. When a

prior inconsistent statement provides the only evidence on a vital point, the

dangers will almost certainly out?

weigh the value.

Stuntman

as Expert

(Continued from page 37) the stunt performer should discuss

any proposed re-creation, and the

feasibility of the re-creation should be a joint determination. The lawyer should give great weight to the stunt man's judgment, even if the physicist does not agree. Someone with prac? tical experience may be a better judge of a re-creation's feasibility.

It is important to have the physicist present during the re-creation or the demonstration. If there are any ques? tions about the stuntman's qualifica? tions, the physicist can testify. The better rule is to have both testify.

Some danger accompanies the re? creation of a serious or fatal accident. Stunt performers are well-trained and aware of the risks they will encounter and the safeguards necessary to pre? vent serious injury. The stuntman will

usually require that safety equipment be built into the crash vehicle so that the risk is eliminated or at least

substantially reduced. As one stunt

performer put it, "You practice law?I'll decide whether the stunts are too dangerous."

Document the demonstration with color movies or videotape, and care?

fully edit them for clarity. The ad

missibility of film and videotape is controlled by the same rules of evi? dence applicable to pictures in gener? al. Lampley v. Waygood, supra; Thus the court will admit motion pictures and videotapes if relevant and veri? fied. Haywood v. Ginn, 306 P.2d 320

(Okla. 1957). Editing a film goes only to its weight, not to its admissibility.

Millers National Insurance Co., v.

Wichita Flour Mills Co., supra; Pritchard v. Downie, 326 F.2d 323

(8th Cir. 1964). But edit as little as

possible and only for the removal of ir? relevant segments.

Use of the stunt performer is limited

only by the imagination of the trial

lawyer. Whenever a case turns on prin? ciples of physics, filmed demonstra? tions and accident re-creations can of? fer powerful means of proof.

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