“BRAKES” ARE NOT A FULL STOP ON
RED LIGHT CAMERA PROSECUTION
AN UPDATE
August 31, 2010
On August 13, 2010, a Client Alert was published that offered a briefing and analysis of People v. Khaled, Appeal Case No. 30-2009-00304893 (Client Alert Memorandum, Volume 25, No. 14). The purpose of the Alert was to provide a “heads up” to clients since, at least, this one case created concerns which needed to be addressed.
However, the Client Alert generated many questions, concerns and hypothetical situations raised by public and private agencies regarding procedures and possible ramifications of the case holdings. It is the purpose of this Client Alert to try to address and clarify these issues.
HOLDING AND SUMMARY
The seminal holding rendered in Khaled was that hearsay exceptions, specifically the Business Records and Official Records exceptions, require strict foundation before demonstrative evidence produced through private vendors can be entered as exhibit evidence.
In Khaled, the Appellate Panel ruled that the testifying officer’s testimony did not present sufficient foundation to allow photographs and declarations from the vendor to be admitted into evidence. The Panel ruled that the evidence presented was hearsay and that no exception allowed the admissibility of the photographs and declarations in the manner presented in that case.
Clearly, the Khaled Panel was telling us that a proper evidentiary foundation for demonstrative evidence must be laid before the photos and declarations can be entered into evidence. Further, the Panel suggested, in dicta, as to how that foundation could be laid by the vendor’s custodian of records and/or an officer who was well trained and readily familiar with the workings, maintenance and the operations of the vendor’s equipment and operational methodology.
SUBSEQUENT ORANGE COUNTY TRIALS
Subsequent to the Khaled decision, Orange County Courts were following the decision closely. In one Superior Court case, People v. Soriano, case no. SA151252PE (this is not a published case and therefore, cannot be cited as case authority), the defendant was found guilty for failing to stop for a red light. The violation was substantiated via red-light camera enforcement (automatic traffic enforcement – ATE). The defendant filed a Motion for Reconsideration and asked the court to use the Khaled decision in reviewing and analyzing his case. In a very well written and well-reasoned decision, Commissioner Carmen Luege ruled that the testifying officer was so well trained and familiar with the vendor’s operations and equipment, that he laid sufficient foundation to overcome the Khaled hearsay issues.
In another Orange County ATE case that was tried after the Khaled decision, a Commissioner indicated strongly that to overcome the hearsay objections espoused inKhaled, the vendor’s custodian of records was necessary to supplement the citing/testifying officer’s testimony. Additionally, anticipating that the defendant in that case may allege untoward maintenance issues with the equipment, the maintenance technician/custodian of maintenance records also testified. In finding the defendant guilty, the Commissioner found specifically that all hearsay objections noted in Khaled were eliminated in this Defendant’s case because of the direct testimony of the vendor’s agents.
FOUNDATION CAN COME IN DIFFERENT FORMS
Subsequent to the previous Client Alert, agencies and vendors were concerned as to whether or not the vendor’s agent/employee would have to testify in every case. As illustrated in the Sorriano case, a vendor does not necessarily have to testify to establish enough foundation to overcome hearsay objections. However, what is just as illustrative is that the testifying officer must be extremely familiar with the vendor’s equipment and operations.
Some agencies are sending their ATE traffic officers to the vendor’s home site for intense training, while other agencies report that they have had the vendor come to their agency to train the officers. But whether the testimony comes from the vendor or an appropriately trained officer, someone competent to overcome hearsay objections needs to be ready to testify.
It appears that vendor’s have records that demonstrate the preventive maintenance and repairs that have been done to the equipment installed. Technicians, in the normal course and scope of their employment, regularly and routinely include information in the maintenance records. If a defendant claims that the equipment was not working properly before he or she was cited for the red light offense, the prosecutor may have to offer the maintenance records or other admissible evidence to overcome the defense.
Some agencies report having their officers intimately involved with the vendor in the vendor’s inspection, repair and maintenance operations. By being so involved in the maintenance process, it is reported that the maintenance records are not needed for the prosecution. Others agencies agree that the introduction of maintenance records would need a vendor representative to introduce the business records. In any case, it seems necessary that there needs to be an evidentiary plan by agencies on how they intend to introduce evidence that the equipment was operating properly just before a violation occurred.
PERSUASIVE AUTHORITY, NOT BINDING
Contained within the Khaled Appellate Panel Minute Order dated May 25, 2010, the Court ordered the case to be published. The Court stated that Khaled can be cited as authority throughout California (CRC 8.1105(c)(2) and (c)(6)).
Notwithstanding the Court’s order, the Khaled holding is not “binding” on other courts, but can be cited as “persuasive authority.”
Additionally, it has been reported that there is an effort to de-publish the Khaled case. If that happens, it would be inappropriate for the case to be cited as case authority from that point on.
HOW THIS AFFECTS YOUR AGENCY
It is true that bare photographs and videos, without narrating testimony, are not writings that contain out of court statements which are subject to the hearsay rule. However, an inscribed data bar which states the date, time and location of the incident appearing on the photos and videos may well require evidence which lays a proper foundation for those out of court statements.
Further, maintenance records or other like information must also be considered when prosecuting an ATE case. If your agency has a successful protocol in place which addresses these foundational evidentiary issues, your agency has overcome the Khaled problems and you have no reason to discontinue your current practices. However, if your ATE traffic officers have not been well trained by your ATE vendor, the foundational issues cited in Khaled should be discussed and analyzed.
As in all matters involving the law, it is imperative that you confer with your agency’s legal counsel to secure advice and guidance on how it will impact on your agency. However, as always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446-1400 or via e-mail at dlp@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.