How can NTSB reports be used as evidence (or to gather evidence) for use in civil or criminal proceedings?
Tl,dr • NTSB reports usually turn into roadmaps for follow-on research and investigations that cover the same ground, but only their factual accident reports may be used for legal purposes. Facts are facts, NTSB interpretations of those facts are out of bounds in a courtroom.The rules governing the NTSB and the use of its work products draw a clear distinction between “factual” reports and materials that interpret or analyze factual information. Both of the following definitions come from Part 835 of Title 49, Code of Federal Regulations:“Board accident report means the report containing the Board's determinations, including the probable cause of an accident, issued either as a narrative report or in a computer format (“briefs” of accidents). Pursuant to section 701(e) of the Federal Aviation Act of 1958 (FA Act), and section 304(c) of the Independent Safety Board Act of 1974 (49 U.S.C. 1154(b)) (Safety Act), no part of a Board accident report may be admitted as evidence or used in any suit or action for damages growing out of any matter mentioned in such reports.“Factual accident report means the report containing the results of the investigator's investigation of the accident. The Board does not object to, and there is no statutory bar to, admission in litigation of factual accident reports. In the case of a major investigation, group chairman factual reports are factual accident reports.”So, what’s the real, practical difference between these two similar-sounding products? The simplest and best example I can offer to explain the distinction drawn is to refer to the Air Force’s “safety investigation” and “accident investigation” model. In the U.S. and many other countries, prevention oriented “safety” investigations take priority over all other investigations in terms of controlling and collecting evidence. The relationship between the former and the latter is exemplified by the Air Force approach to serving separate consumers of the same body of knowledge.An Air Force “safety” investigation is conducted to determine what happened as quickly as possible so any immediate threat to readiness (say, the need to ground an entire fleet of aircraft for a previously unrecognized problem) can be remedied as quickly as possible. The safety board gets first dibs on everything related to the aircraft and its crew • maintenance and training records, loading manifests, the results of toxicological testing, physical evidence, etc.Air Force safety investigation boards (SIB) also are allowed to obtain unsworn testimony (i.e., testimony which may not be used against the participant or witness) with a “promise of confidentiality” to understand what happened, who did what, and if perhaps somebody did something they weren’t supposed to or vice versa. The latter is particularly important, if there’s a known issue that requires a specific procedure to be followed and it isn’t, it’s useful to know that up front before wasting time exploring why the procedure didn’t prevent a bad outcome. Similarly, if a pilot did something dumb and admits to it, no time or resources are wasted chasing down various possible mechanical failures that might have led to the observed outcome.According to Air Force Manual 91–223, Aviation Safety Investigations and Reports, “Formal reports present both factual and analytical information for Class A and Class B mishaps. The SIB normally produces a formal safety report with two parts: Part 1, Facts, and Part 2, Board Analysis, Conclusions, and Privileged Material.” SIB reports of aircraft accidents usually contain the following releasable (Part 1) information:Tab A - Safety Investigator InformationTab D - Maintenance Report, Records, and DataTab F - Weather and Environmental Records and DataTab G - Personnel Records (pilot flight and training records, maintenance training records, etc.)Tab H - Egress, Aircrew Flight Equipment (AFE), Impact, and Crashworthiness Analysis (This analysis is accomplished by the AFE member or technical experts and is limited to simply analyzing evidence rather than trying to relate what that evidence might suggest about how the whole sequence of events played out.)Tab I - Deficiency ReportsTab J - Releasable Technical Reports and Engineering Evaluations (Tab J reports are factual and consist of observations (what parts are bent, broken, or burned, etc.), analysis (whether it happened before, during, or after the mishap, and how), conclusions (effect on system function, etc.), and recommendations (methods to prevent the observed condition from re-occurring, etc.). Analysis, conclusions, and recommendations are based on physical evidence, other factual data, and statements made without a promise of confidentiality. They do not include any opinion as to whether or not a particular failure contributed to or caused the mishap.)Tab K - Mission Records and Data (flight plan and flight orders, weight and balance forms, etc.)Tab L - Factual Parametric, Audio, and Video Data from On-board RecordersTab M - Data from Ground Radar and Other SourcesTab N - Transcripts of Voice CommunicationsTab O - Additional Substantiating Data and Reports (think of this as a bibliogrpahy of references used • operating instruction, technical orders, aeronautical charts, etc.)Tab P - Damage Summaries (property losses, clean-up costs, etc.)Tab Q - AIB Transfer Documents (memorandum from SIB President to AIB President regarding the location and disposition of all non-privileged evidence, wreckage, and components involved in the mishap sequence, list of witnesses interviewed by the SIB)Tab R - Releasable Witness Testimony (Testimony from all individuals involved in the mishap and those who were witnesses to the mishap who were not granted a promise of confidentiality.)Tab S - Releasable Photographs, Videos, Diagrams, and Animations (unstaged photos, cockpit diagrams, impact area, route of flight, etc.).Separate from SIBs, Air Force accident investigation boards (AIB) are convened to investigate major mishaps involving loss of life or destruction of/major damage to aircraft, missiles and the like. They follow strict rules regarding the use of evidence and the gathering of testimony.By and large, SIB reports themselves are not releasable to the public, although all of Part I usually appears in its entirety in the subsequent AIB report. The Air Force goes to extreme lengths to keep a firewall between safety investigations and accident investigations, to the point of foregoing the former altogether if the circumstances surrounding a given event are such that significant public interest is expected and accountability demanded as quickly as possible.(Two examples where a safety investigation could have been conducted but wasn’t (and which might have resulted in better “preventive” actions in their respective aftermaths) were the 1994 Black Hawk shootdown incident and the 1996 Croatia USAF CT-43 crash involving the death of Commerce Secretary Ron Brown and thirty-four others. In both cases, a single AIB was convened • the former with Army members, the latter with NTSB support • and all documentation, including testimony was made public upon their completion.)The reason I went into this level of detail is to show that, in the Air Force, two different investigative processes are governed by different rules and have different objectives, but both rely in the same physical and documentary evidence and require access to the same witnesses to function properly. Since the SIB gets everything first, they are obliged to protect the chain of custody of relevant materials, then, having gathered everything they deemed relevant to their investigation, they bundle up all of the factual materials they collected and hand them over to the AIB to help the latter get a running start on their investigation. The AIB may re-interview witnesses or find new ones, they may dig up their own documentary evidence. However, they draw their own fact- and evidence-based conclusions.Now, circle back to the NTSB reports. You should think of the NTSB “board accident reports” as Air Force SIB reports • they blend factual data with interpretations and deliberations on what that factual data tells the NTSB members en banc and their staff about the accident as a whole. On the other hand, NTSB “factual accident reports” are pretty much like Part 1 of an Air Force SIB report, plus anything that’s been placed on the public dockets associated with individual accidents. Like Air Force AIB reports, they’re fair game to use as a starting point for follow-on inquiries by law enforcement, litigants, reporters, or whoever else might have an interest in overlaying their own interpretation on the factual foundation put together from the first moments after the occurrence onward.