- The Washington Times - Monday, August 30, 2010

A Supreme Court ruling last year requiring that scientists be made available to testify in court cases about lab evidence they prepare may have the added effect of curtailing the use of automated traffic-enforcement cameras to assess criminal penalties.

Two California judges this month tossed out batches of red-light camera tickets, citing a 5-4 decision by the high court in a Massachusetts case.

California is one of 23 states and the District of Columbia that operate red-light camera programs, but in 21 of those jurisdictions — including Maryland, Virginia and the District — violations generated by the cameras are civil infractions, like a parking ticket, issued to the vehicle’s owner instead of criminal violations levied against the driver.

The California judges, ruling in separate cases in San Diego and Orange counties, said companies that operate cameras need to make available to testify the technicians who maintain their equipment in the same way that forensic scientists and lab workers can be called by defense attorneys for cross examination.

The absence of the camera technicians in criminal cases, the judges said, violates the 6th Amendment’s Confrontation Clause of the Bill of Rights, which guarantees criminal defendants the right “to be confronted with the witnesses against them.” The Confrontation Clause — and the court decision — only applies to criminal cases.

Commissioner Karen A. Riley of the San Diego Superior Court Central Traffic Division said in a 20-page Aug. 16 opinion that affidavits submitted to the court by Arizona-based American Traffic Solutions Inc. that attest to methods for obtaining, transmitting and storing information about infractions are “not admissible in the absence of a live witness with personal knowledge” of the procedures.

She also noted there was “virtually never an appearance in this court by any photo red-light company employee.”

In dismissing eight cases before her after a motion to suppress the affidavits, Ms. Riley stopped short of declaring the system of issuing red-light-camera tickets illegal, saying only the government would be unable to prove its cases beyond a reasonable doubt without live witnesses.

“The court points out that it is not ruling against the red-light-camera system as a whole,” she said. “Rather, it is a ruling that sufficient foundation and evidence must be presented and appropriate witnesses must be present at trial to testify and be subject to cross-examination by the defendants.”

Mitchell Mehdy, a Southern California lawyer who argued the San Diego case, said the decision could have far-reaching implications.

“I think the camera companies are put on notice with this decision that it’s not business as usual,” he said. “You’ve got to change the way you do business.”

An ATS spokeswoman said the company was studying the decision.

In an Aug. 19 opinion in a different case, Superior Court Judge Peter J. Wilson in Orange County dismissed seven violations in which photographs or video from Australia-based Redflex Traffic Systems Inc. provided the only evidence linking the defendants to a violation.

He dismissed an officer’s testimony in support of the traffic tickets, saying the officer only established general information about how the photo-enforcement system “is supposed to work, and that, had it worked as it was supposed to, it should capture videos and photographs like the one before the court.” He said the officer provided no direct testimony whatsoever about the particular defendant or the particular infraction.

Judge Wilson said declarations submitted to the court by the private enforcement company to support the red-light infractions “contain testimonial hearsay,” without which the officer cannot identify the photographs as taken by the company, cannot attest they pertain to any actual traffic violation and cannot say with certainty the camera equipment was in working order at the time of the violation.

The opinions were first reported in the online driving journal, thenewspaper.com.

Leslie Blakey, executive director of the Washington, D.C.-based National Campaign to Stop Red-Light Running, said requiring photo-enforcement technicians to testify in a similar manner as lab technicians would be difficult since they often work at facilities at great distances from the jurisdictions where the cameras are operated.

Her group expressed concern in July 2009 that photo-enforcement technicians could be required to testify at trials in light of the Supreme Court decision in Melendez-Diaz vs. Massachusetts.

In that case, Luis Melendez-Diaz challenged a lab analysis that confirmed cocaine was in plastic bags found in the car in which he was riding. Massachusetts courts rejected his claim that he should be allowed to question the lab scientist about testing methods, but the Supreme Court overruled it.

The Supreme Court’s ruling wrought havoc for state prosecutors, who scrambled in its aftermath to accommodate requests for scientists to appear in court and provide testimony.

The amount of money involved in automated enforcement has led to widespread criticism that the cameras are a cash cow for local governments more interested in revenue than public safety.

Redflex claimed revenue of $136 million last year, according to a shareholders’ report, and Washington, D.C., which implemented a red-light-camera program in 1999, has collected more than $22 million since the beginning of fiscal 2007 on 49 red-light cameras.

• Matthew Cella can be reached at mcella@washingtontimes.com.

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