Contesting a Red Light Camera "Civil" Violation

[rdubs]

My question involves traffic court in the State of: TEXAS

Hi everyone,
First a quick apology to the posting length; I am trying to be thorough mainly to help others in the future if they come across this in a search.

I recently received a red light camera ticket in the mail from a small city near Dallas. Basically it's signed on the front that some police officer from the city watched the video and determined I ran the light hence the ticket. The ticket is $75 but I have a huge problem with two things, first that cities like this are taking the copout of declaring the ticket a "civil" penalty so they don't have to prove it was you driving, and second, I feel this completely violates the Confrontation clause of the 6th Amendment. So I want to contest it based on hearsay (namely Melendez-Diaz v. Massachusetts) , foundation (prove the camera is accurate) and a few other things I think will come up based on discovery. But I have some questions on what other rules applicable in criminal cases are not applicable by calling this a civil case.

First question: I called the ticket center and asked if it is a judge or a Justice of the Peace who will preside over the case, they said neither; it is a "hearing officer" hired by the police department. To me that reeks of a kangaroo court where there will be huge potential for abuse of due process (since who is going to pay to appeal a $75 ticket?). Obviously there is a huge conflict of interest here; the city pays someone out of money the city gets by that someone finding other people guilty. Is there anything I can do to guard against if this unelected, unaccountable official basically ignores the due process that would be given if real lawyers and cameras were present?

Second: What aspects of judicial proceedings are different by these tickets being called civil cases as opposed to criminal? Does the whole process of Discovery still apply (I am crafting my Discovery letter now)? Do Rules of Evidence still apply? Especially if this ends up being a kangaroo court I expect everything I say to be met with "this is a civil trial and whatever motion or objection you have doesn't apply here." The lady on the phone made it sound like the way the "hearings" run is they put the video in, it shows the person running the light, and the hearing officer says okay now try to talk your way out of it.

Third: Who should I mail the discovery request to? When I called the ticket customer service and asked who the Prosecuting Attorney is, is it the D.A. or the City Attorney, they said neither, there isn't one "since it's a civil case". All who will be present are the hearing officer, the officer who watched the video and me. So who gets the request for discovery? (And by the way, just by calling the case civil does that mean the city can get away without having anyone on the prosecution side, and if they say it's the officer who reviewed the tape, can the person prosecuting the case also be the sole witness?)

Lastly: The Texas Transportation Code that governs red light cameras has wording in it I find amazing: First is says that the reliability of the red light camera system can be attested to by an affidavit of someone in the police department. Second it says that the affidavit of the officer who reviewed the tape counts as evidence of the facts on the tape. How on earth can these decrees be even remotely lawful or enforceable?

Thanks for bearing through the long post, know that any helpful response will probably help a lot of others as well.

[Mr. Knowitall]

If you don't like the outcome of the hearing, appeal the outcome.

Civil cases impose civil penalties, and are decided by a preponderance of the evidence. You get fewer protections in a civil case as less is at stake - the most obvious factor being you can't be sentenced to jail. A traffic ticket hearing may be deemed quasi-criminal, as it has some, but not all, of the qualities of a criminal prosecution.

What authority are you relying upon for discovery in a civil traffic matter?

The law can create presumptions, that you can attempt to overcome at trial through the presentation of evidence sufficient to overcome the presumptions. If you intend to appeal be sure that you properly preserve the issues of due process and confrontation in relation to any affidavits submitted in lieu of live testimony.

[rdubs]

If you don't like the outcome of the hearing, appeal the outcome.
...
What authority are you relying upon for discovery in a civil traffic matter?

Thanks for the reply Mr. Knowitall. I absolutely expect the hearing officer to not even listen to anything I have to say about hearsay, Melendez-Diaz v. Massachusetts, foundation, lack of discovery response, etc. so I am fully expecting to have to appeal this. Since the hearing officers are not accountable to anyone if they steamroll over someone's due process rights, the best I can do is try to make it as clear as possible those rights were violated or ignored during the hearing. Any thoughts you (or others) might have would be very much appreciated.

About the authority to require discovery, I believe that the same right of discovery which applies to criminal cases also applies to civil ones, and since these red light violations are treated as civil cases, discovery should still apply. However I always like knowing the actual foundation, and I believe it is Texas Rules of Civil Procedure, Section 9, Part B ("Discovery").

Do you need to be an attorney to file your own appeal? I don't believe so, but I know it isn't easy to draft.

Another quick question, if I want to cite the ruling from another court case (I plan to use both Melendez-Diaz and another, more recent red-light-specific case out in California), do I just read the ruling to the hearing officer or do I have to enter the printout of the ruling into evidence?

[blewis]

Another mis-application of Melendez-Diaz, eh? Melendez-Diaz is a CRIMINAL case, where the confrontation clause was applied to the officer or technician who USES a device to supply scientific evidence. The court ruled that that evidence MUST be introduced by the officer or technician who performed the test.

Your case is NOT criminal, however, and, by statute, the officer's affidavit can be entered into evidence against you WITHOUT the officer being present. Although, according to your post, the officer who issued the citation WILL be there, so it's a moot point. Argue Melendez-Diaz all you want, it won't help.

An appeal will simply result in a de novo hearing before a court, according to Texas statutes (see 707.016).

Barry

[rdubs]

Another mis-application of Melendez-Diaz, eh? Melendez-Diaz is a CRIMINAL case, where the confrontation clause was applied to the officer or technician who USES a device to supply scientific evidence. The court ruled that that evidence MUST be introduced by the officer or technician who performed the test.

Your case is NOT criminal, however, and, by statute, the officer's affidavit can be entered into evidence against you WITHOUT the officer being present. Although, according to your post, the officer who issued the citation WILL be there, so it's a moot point. Argue Melendez-Diaz all you want, it won't help.

I was running under the presumption that there were only a few things different regarding your rights pertaining to due process between a civil and criminal case. For example, from what I could find the Texas Rules of Evidence do not seem to make a distinction between hearsay as applied to civil vs. criminal. However I think what I was missing was right in the first part of the 6th Amendment: "In all criminal prosecutions, ...". So by simply taking the copout of declaring the infraction to be civil not criminal you lose the Confrontation rights. I knew that in California the red light camera tickets are treated as criminal cases which is why I was avoiding use of those cases (as you likely know those CA cases get turned over all the time on hearsay citing Melendez-Diaz). So you're definitely right on that.

However just to make sure you're clear, if it were a criminal case it wouldn't matter if the officer who issued the ticket was there or not because the evidence he watched would have been hearsay, so just because the officer who watched the tape shows up would not have made it admissible evidence (again, had Melendez-Diaz applied, which it doesn't).

I can still try to use the angle that the TX Rules of Evidence do not differentiate between civil and criminal in regards to hearsay, but that's clearly not as good as a constitutional right.

I am surprised at how you begin with "ANOTHER mis-application" [emphasis mine], as I only saw one other thread through searching that dealt with this, but it looks like you had quite the spat with one of the posters so maybe that's why.

Barry you definitely seem to know your stuff at least as it applies to this aspect of civil vs. criminal. Can you confirm if the right to Discovery still applies in civil proceedings? If I submit my discovery request and it is ignored (even after repeated requests), is that grounds for a mistrial or dismissing the case? I have a feeling given the small size of the police department, my request for discovery will be the first one they've seen and there's a good chance they'll blow it off.

Thanks much.

[blewis]

First of all, I have almost NO knowledge of TX law, court rules, or rules of evidence. So, I'm NOT qualified to answer most of your questions. I do know that failure to provide discovery in some states, such as WA, will result in a dismissal -- by court rule. In some other states, such as CA, it usually only results in the court "compelling" discovery. Then, and only then, if the discovery is not forthcoming, is a motion for dismissal granted.

However, if you believe that an officer who introduces a video into evidence is somehow "hearsay", you don't understand what "hearsay" is. As long as there is evidence that the video equipment functioned properly at the time of the infraction (no missing frames, etc.), "hearsay" has NOTHING to do with it.

This is a two step process. First, the officer reviews the video and determines that there is "probable cause" and issues a citation (or "summons and complaint" in some places). "Hearsay" has nothing to do with ANYTHING in this process. Then, at the hearing, the officer presents the video, attests to the accuracy of the video equipment, and the COURT determines whether the video should be admitted into evidence and then whether that evidence is sufficient for a conviction. Still no "hearsay" involved.

Melendez-Diaz ONLY requires that the technician or officer who USED a piece of equipment to acquire information (in that case, the chemical analysis of drugs), be in court to introduce those results into evidence, in order that they can be cross-examined about the "chain of evidence" and the procedure used for testing, for example. Note that the person who originally "calibrated" the test equipment is NOT required to be present.

However, TX law states that, since it is a "civil" matter, not even the officer who reviewed the video is required in the courtroom. An affidavit is sufficient to get the video introduced into evidence.

But, I'm probably wasting my time -- I doubt you'll believe me.

Good luck,
Barry

[rdubs]

Thank you for the reply Barry, especially the info regarding discovery.

I'm having trouble figuring out, in your discussion of hearsay, whether you are talking in absolute terms (i.e., hearsay as it relates to criminal cases), or as it relates just to civil cases. We both agree that the Confrontation clause is not applicable in civil trials (which prevents me from citing it in my hearing). Regardless, if an officer looks at the video tape and then makes a statement based on the video tape, such as the light was already red by 0.5 seconds as you can see on the video data readout, then that is hearsay.

Referencing Wikipedia:

However, most evidentiary codes defining hearsay adopt verbatim the rule as laid out in the Federal Rules of Evidence, which generally defines hearsay as a 'statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.'

The key word there is STATEMENT. As soon as the officer relies on the video equipment to make the statement that the red light had been run, at that point it is the VIDEO EQUIPMENT making a declarative statement and it is that which runs afoul of hearsay. Think about it like this: If the officer was not relying on the video equipment to determine whether an infraction occurred or not, why would he need to attest to the accuracy of the video equipment? Of course he is relying on the data coming out of the equipment, or the equipment itself - and at that point the equipment is making a statement, and at that point it is hearsay. Also any written certificate from the equipment company, once referenced by the officer, saying the equipment is in proper working order is hearsay because it is making a statement by someone not testifying. Again only applicable in criminal cases!!!

You seem fairly adamant that Melendez-Diaz only requires the person who USED, not maintained, the equipment be present. If this is the case, then it would not apply to red light camera systems since, according to you, only the officer who USED the equipment would need to appear correct? Well if that's what you believe, you might want to right letters to the gobs of judges in California who are throwing out red light camera cases in batches -and specifically citing Melendez-Diaz as the reason.

http://www.experiencedcriminallawyer...affic-cameras/

http://www.metnews.com/articles/2010/khal072310.htm

http://www.highwayrobbery.net/TrcDoc...ses2010Aug.pdf

And a good wrapup:
http://www.washingtontimes.com/news/...ameras/?page=1

"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.
...
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."

But I wouldn't want you to waste your time.

[blewis]

Contrary to the dissent’s suggestion, ... we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.

First of all, Melendez-Diaz applies in CA because traffic tickets are "criminal" in nature, unlike yours in TX. Second, in the cases you linked to, it talks about the ATS people who actually do the "analysis" and prepare a report. In CA, then, an officer would simply read the report. The courts have ruled that the people who USED the equipment -- the technicians at ATS who PREPARED the report -- should have been the ones who testified, NOT the officer who simply READ the report. This is consistent with what I have previously stated.

As far as your interpretation of "hearsay", no EQUIPMENT "is making a statement". Equipment does NOT talk. THERE IS NO HEARSAY.

Besides, think about it. What is the difference between an officer watching you run a light in person, watching you run a light on a "live" camera, and watching a recorded video of you running the light?

The only provision is that "foundation" must establish that the equipment -- the camera and recording equipment -- is reliable. Then the information (video, in this case) can be introduced into evidence. And in TX, the law allows:

(e) The reliability of the photographic traffic signal enforcement system used to produce the recorded image of the motor vehicle involved in the violation may be attested to by affidavit of an officer or employee of the local authority or of the entity with which the local authority contracts under Section 707.003(a)(1) who is responsible for inspecting and maintaining the system.

And, since it is not criminal in nature, Melendez-Diaz does NOT apply, and "foundation" can be established by affidavit. Once that foundation is complete, the video "speaks" for itself. It will show the date and time along with your car. The officer does not have to even speak to what's shown in the video -- the officer does not even have to be there. As long as the affidavit proves reliability (and you can certainly challenge the information in the affidavit for timeliness, thoroughness, traceability, etc.), the video will be admitted. No hearsay, no Melendez-Diaz.

So, my advice -- if you want to beat this -- is get off the "hearsay" and Melendez-Diaz kick. What you believe to be hearsay is NOT! Instead, be sure your discovery request asks for the equipment certification. Go over it thoroughly. Make sure it is signed under penalty of perjury, dated, etc. If you don't receive it, object to its admission because you weren't given opportunity to prepare a defense based on the equipment's reliability.

Then, when you lose (and you probably will) file your appeal. Because that will be in a Justice or Municipal Court, the defense loses a lot of the advantages that the Administrative Adjudication Hearing provided. Court Rules and the Rules of Evidence will apply -- plus, I don't think it will remain a "civil" matter (but I cannot confirm that).

Barry