Friday, June 24, 2011

US Supreme Court Upholds Right to Confront Accuser

The US Supreme Court has upheld the right to confront and accuser in a ruling that could have broad implications for photo radar cases, according to an article in
In a decision that has wide-ranging implications for photo enforcement, speeding tickets and driving under the influence of alcohol (DUI) charges, the US Supreme Court yesterday reconfirmed the Sixth Amendment right to confront one's accuser applies to analysts who claim to have certified evidence from a machine. The 5-4 decision concluded that "stand-in" expert witnesses are not a substitute for the individuals who actually conducted the tests. The decision broadens the applicability of the landmark Melendez-Diaz ruling from 2009, which has already led to appellate division cases in four California counties to throw out red light camera evidence.
"Suppose a police report recorded an objective fact -- Bullcoming's counsel posited the address above the front door of a house or the read-out of a radar gun," Justice Ruth Bader Ginsburg wrote for the majority. "Could an officer other than the one who saw the number on the house or gun present the information in court -- so long as that officer was equipped to testify about any technology the observing officer deployed and the police department's standard operating procedures? As our precedent makes plain, the answer is emphatically 'No.'"

The court majority noted that using a surrogate witness would conceal any lapses or lies on the part of the certifying analyst. It also noted that the burden on the prosecution from the requirement of live testimony could have been cured by having Razatos retest the blood sample, which was preserved in accordance with New Mexico law.
The decision represented a rare coalition of the most liberal and most conservative members of the court. Ginsburg and President Obama's nominees to the court, Justices Sonia Sotomayor and Elena Kagan, were joined by Justices Antonin Scalia and Clarence Thomas.
Read the full article and court decision on

The decision could have relevance to cases of denied due process and denied right to face an accuser in Maryland.  Under Maryland law, drivers may request the "speed monitoring system operator" to appear in court.  However this person may or may not have anything to do with the actual operation of the device, and defendants have been given no right to confront the camera contractors who build, install, maintain, and process violations from the cameras in exchange for a percentage cut of the revenue. Furthermore, in 2009 the law was changed to modify the definition of a speed monitoring system operator from "an individual who operates a speed monitoring system" to "a representative of an agency which operates a speed monitoring system", an obvious effort by some Maryland lawmakers to provide cover for jurisdictions who choose to present someone with no responsibility for running the machines in court.

Even this right to face the operator has not been consistently upheld in Maryland.  When operators have failed to appear upon request, drivers are typically forced to prove they requested the operator with something like a certified mail receipt, and even in those cases district courts have not always dismissed the cases on that basis.  In particular Montgomery County on several occasions asserted that they do not need to present the operator in court for fixed-pole speed cameras.  This policy was adopted some time after one camera operator from Gaithersburg admitted in court that he was not working on the date of a violation, causing the judge to throw out the case.  Earlier this year tried to obtain documents pertaining to the basis for the policy of refusing to present the operator, under the Maryland Public Information. Montgomery County officials obstructed this request, stating that they would only release such records after a 6 month search to be begun only after they received a massive $43,000.00 payment.  When asked several times for and explanation of this expense, Montgomery County failed to respond.

We hope Montgomery County and other jurisdictions will reconsider the denial of the constitutional right to confront the accuser in light of the Supreme Court's decision.