Embedded Software Under the Courtroom Microscope: A Case Study of the Toyota Unintended Acceleration Trial

Product liability trials involving embedded software, such as those in which an automobile driver alleges that faulty embedded software was responsible for an accident, require the same standard of proof as other civil trials. The plaintiff must convince a jury that the defendant (for example, the automobile manufacturer) more likely than not is responsible for the accident [1]-[4].1 This includes showing that the defendant failed to fulfill their duty, and that the defendant's failure was the cause of the accident (causation) [5]-[12]. The defendant may offer evidence to counter the plaintiff's arguments. For example, if the plaintiff's technical expert testifies that in his/her opinion it is more likely than not that a specific problem in the defendant's embedded software caused the accident, the defendant might identify flaws in the analysis. As will be shown, when a non-technical jury in such a trial is confronted with complex software issues, the verdict they deliver may not be supported by the facts. The jury can get it wrong.