The right to confront witnesses by cross-examination is essential to due process. Forman v. Creighton School Dist. No. 14, 87 Ariz. 329, 333, 351 P.2d 165, 168 (1960); Harries v. United States, 350 F.2d 231 (9th Cir. 1965); Pointer v. Texas, 380 U.S. 400 (1985).
In traditional traffic violation cases, the statutes provided that the Rules of Evidence need not apply because a trained, experienced police officer’s testimony carries significant credibility and reliability. See A.R.S. §§ 28-1596 and 28-1597.
An automated traffic violation system generating a traffic ticket is different. Where an officer is involved, an accused can meaningfully cross-examine the officer about their personal observations. The officer may also be cross-examined regarding their experience and training.
With a computer-generated ticket, no such witness is available for cross-examination. Typically the government is permitted to introduce generated records and photographs through a civilian, as opposed to a police officer. In almost every case, this employee has no personal knowledge of the events at issue (because they were not present at the time and place of the alleged violation).
No foundation to establishing the reliability or authenticity of any introduced evidence, except the civilian employee’s hearsay, will be offered. Without foundation, a defendant is unable to effectively challenge the accuracy or authenticity of the evidence, as the employee has neither personal knowledge of the events in question, nor any personal knowledge of the state of the automated traffic equipment on the day of the alleged violation.
The due process right to test the reliability of the government’s evidence through cross-examination is effectively denied when a trial court permits a witness without personal knowledge to introduce hearsay evidence. In most photo radar civil traffic trials, the equipment cannot be cross-examined (nor is it available for testing or inspection), the actual equipment operator does not appear, nor does anyone from the equipment operator’s company appear.
Nobody with personal knowledge as to the calibration, maintenance, operation, and accuracy of the equipment testifies, although often enough the civilian employee tries to introduce hearsay evidence which cannot be cross-examined. The government’s only testifying witness, a civilian employee, has no personal knowledge of the facts of the events or the state of the equipment on the day of the alleged violation.
Under such circumstances, defendants are routinely denied their confrontation and due process rights to cross-examine any proper witnesses against them, and denied due process in that evidence will be admitted, despite objection, without proper foundation.
The government could easily cure the problem by calling a representative from the equipment operator, who possesses personal knowledge of the facts in the case. In all other settings, where the government attempts to introduce evidence generated by the means of technology, they are required to lay proper foundation, by an appropriate witness with the requisite personal knowledge, before such evidence may be admitted.
None of the government’s evidence should be admitted under such circumstances. Without such fatally flawed evidence, no credible evidence against a defendant would be admitted, and the case would have to be dismissed.
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