38 Brief 11 (2008-2009)
Criminalization in Aviation - Are Prosecutorial Investigations Relegating Aviation safety to the Back Seat

handle is hein.journals/tbrief38 and id is 157 raw text is: AIre Prosecutoriai Investig ations Relegating
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By Richard M. Dunn, Sherril M. Colombo, and Allison E. Nold

viation accident investigations around the
world traditionally have fallen under the
purview of administrative agencies. In the
United States, the National Transportation Safety
Board (NTSB) handles aircraft accident investiga-
tions to uncover the reasons for crashes and attempts
to ensure that such accidents do not recur. Yet recent
years have witnessed criminal investigative agencies
and their prosecutorial arms launching aviation acci-
dent investigations as well. In that process, prosecutors
worldwide have often transformed merely negligent
conduct into something more, charging aviation
employees, from mechanics and pilots to business
executives and aviation oversight officials, with crimi-
nal conduct. Oftentimes these employees face serious
time in jail, hefty fines, or both. Some speculate that
fear of such criminalization issues contributed to the
decision of C. B. Sullenberger-the pilot who success-
fully landed an Airbus A320 in the Hudson River and
was immediately hailed as a hero-to delay any public
discussion of that incident for weeks.
Given the current economic and regulatory envi-
ronment, with its demands for greater transparency
and the oversight of corporate entities, the prosecu-
torial trend in aviation investigations is unlikely to
change significantly in the short term. And yet we
must ask ourselves, what does this trend accomplish?
Are we safer by trying to understand accidents and
the reasons why they occur or by threatening aviation
executives and w  orkers with jail and jeopardizing the
very investigations that may preclude such accidents
from happening again?
While some would cast this as a false dichotomy,
human nature and actual facts suggest otherwise. If
mechanics, pilots, and other business and aviation offi-
cials are faced with the possibility of prosecution-and
these are the very people we rely upon to supply critical

information in administrative safety investigations-
can we not expect them to be less willing, or even
unwilling, to cooperate for fear of self-incrimination?
The inevitable outcome is that investigations will be
undermined and critical information necessary for
preventive action delayed or irretrievably lost. Further,
the tension between criminal and administrative avia-
tion investigations has already reared its head. As one
example, Italy's Agenzia Nazionale per la Sicurezza del
Volo (ANSV), the Italian Air Safety Board, reported
that it is unable to conduct a thorough investiga-
tion into the February 7, 2009, fatal accident involv-
ing a Cessna 650 Citation III near Rome.' Why?
For one thing, the cockpit voice recorder and flight
data recorder were seized for a judicial inquiry, '' For
another, the Italian agency was required to relinquish
documents vital to the investigation because present
regulations in Italy give primacy to the investigation
of the prosecutor, whose work takes precedence over
ANSV investigations. The Italian Ministry of Justice
subsequently attempted to suppress its intrusion on the
ANSV investigation by stipulating that no tampering
with or alteration of the evidence would occur. The
Ministry further agreed that, compatibile with public
safety requirements, the recovery of wreckage would
be coordinated with ANSV personnel4 Despite these
offerings, a month later (and at the time of this writ-
ing) the cockpit voice recorder and the flight data
recorder data of the accident were still exclusively in
the hands of the responsible judicial authority.
The aviation industry, and more importantly the
worldwide public, cannot afford this dangerous result.
Criminal enforcement of traditionally civil wrongs
should not be placed above aviation safety The sig-
nificant number of fatalities that unfortunately follow
air disasters do not justify the overcriminalization of
conduct that falls squarely within the civil domain.

photograph from AP Images


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