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  1. #11
    Join Date
    Feb 2010
    Location
    CT & IL
    Posts
    5,273

    Default Re: Moving Violation Washington State

    I also see where he testifies to two vehicle speeds: 65 MPH and 73 MPH ... he offers no reason for the difference.

    So, he is actually guilty of perjury in the strictest sense.

  2. #12
    Join Date
    Jan 2012
    Location
    Silicon Valley
    Posts
    532

    Default Re: Moving Violation Washington State

    Quote Quoting supralover23
    View Post
    I see where you and BJK are coming from, but it seems remiss of the state to allow a loophole of that magnitude. Under that logic, any SMD-issued speeding citation would have to be dismissed, assuming that argument was brought up.
    I don't understand your position at all. You're saying that the expert witness can file an affidavit saying that the radar equipment meets the testing standards before he has actually tested it? This flies in the face of common sense and the scientific method. You're supposed to test your hypothesis to see if it's correct or not. Creating an experiment to validate your theory isn't scientifically sound. The way for the expert witnesses to solve this problem would be to test the devices first, then write the affidavit after the test.

    I'm not an expert on WA State law, so Barry, Brendan, or Speedy, feel free to correct / dope-slap me. However, there's a substantial amount of case law that shows that SMD devices must be authenticated before the evidence is admissible. Further, IRLJ 6.6 is a hearsay exception that is only valid if the certification complies with the requirements of the rule.

    Let's start at the top. Seattle v. Peterson holds that for radar evidence to be admissible, it must be authenticated in accordance with ER 901.

    The People need not authenticate the SMD unless the defendant makes a timely objection. In State v. Roberts, the court held that the prosecution's authentication requirement was waived because Roberts did not offer a timely objection. This forfeited Roberts grounds to raise the issue on appeal.

    Bellevue v. Mociulski describes the requirements when the People use IRLJ 6.6 in lieu of expert testimony, for the purposes of authenticating a SMD. The central argument in Mociulski, that's quoted in other cases, is the following:

    In fact, the authentication of the speed measuring device involves a compound determination. Before the machine is deemed reliable, the witness testing the machines or monitoring the testing must first show his/her qualifications to make and/or evaluate the tests. The witness must first qualify as an expert via knowledge, skill, experience, training, or education. ER 702. After the witness has qualified as an expert, he/she must show that the machines passed the requisite tests and checks. Only then can the speed measuring devices be deemed reliable. Again, the questions concerning the expert's qualifications are preliminary matters governed by ER 104.

    That is, the affidavit must show that the witness tested the device, the witness is an expert, and that the machines passed the requisite tests. This means that if you want to preserve your right on appeal, force the prosecution to authenticate the SMD, or have any doubts that the expert testimony meets the requirements in Mociulski, you should offer a timely objection. If there's any doubt about the requisite tests and checks, or who performed those tests, then it's on point to cite Mociulski to support your objection. How could the expert witness reliably authenticate a SMD if the affidavit stating that the requisite tests and checks were performed was signed and dated before those same tests were ever performed?

    Bellevue v. Hellenthal affirms the holdings in Mociulski. In Hellenthal, the court writes that, "the certificate must provide sufficient information, substantially as set out in IRLJ 6.6(b), to enable the trial court to readily make this compound determination of authenticity." How can this certificate substantively meet the requirements of IRLJ 6.6, if the document was completed before the testing ever occurred?

    IRLJ 6.6 is very similar to CrR 6.13. Both are statutory hearsay exceptions that provide a method for admitting scientific evidence without requiring an expert witness to testify in court. In State v. Neal, the WA Supreme Court conducted an En Banc review of an appeals court decision about the form and admissibility of these affidavits from experts. CrR 6.13 also prescribes the format of the document in much the same way that IRLJ 6.6 does. The WA Supreme Court reversed the lower court's decision, and held that the trial court abused its discretion when it admitted a lab report with a non-compliant certificate.

    The Court of Appeals found the court had not abused its discretion. The court reasoned that the language "shall be admitted" in CrR 6.13(b) means that if the certificate strictly complies with the content requirements, admission of the report is "mandatory" while admission of a noncompliant certificate is "discretionary." [...]

    We disagree. If the certification strictly complies with the requirements of the rule, the report is admissible (even over objection) without further proof or foundation. See CrR 6.13(b)(1). "Shall be admitted" thus means that a certificate that strictly complies with the rule qualifies as a hearsay exception and will survive a hearsay objection. The converse is that a certificate that does not strictly comply with the rule is hearsay. In the face of a validly stated objection that the certificate is defective, the report is hearsay evidence and further proof or foundation in the form of witnesses is required.

    The WA Supreme court then went on to say that:

    [A]llowing courts discretion to admit hearsay evidence not in compliance with the rule creates a "catch-all" exception to the hearsay rule. This state declined to adopt any catchall provision similar to Fed.R.Evid. 803(24) which provided for admission of hearsay when the trial judge found it was created under circumstances which provided guaranties of trustworthiness similar to established hearsay exceptions.

    If you accept the premise that IRLJ 6.6 and CrR 6.13 are equivalent types of hearsay exceptions, then a non-compliant certificate means that the SMD is inadmissible without additional testimony from an expert witness. This kind of evidence doesn't even survive other hearsay exceptions. In State v. Nation, the court considered a case around CrR 6.13 where the certification was insufficient. Because the document had been prepared for the purposes of litigation, and the document was not prepared at the time that the test occurred. The court ruled that the evidence was inadmissible under both ER 703 and RCW 5.45.020. The business records exception is especially germane here, because in this case too, the affidavit wasn't completed at the time the act it is offered to prove occurred.

    IMHO, Brendan is right on the money.

  3. #13
    Join Date
    Aug 2012
    Posts
    115

    Default Re: Moving Violation Washington State

    I could definitely be wrong, since I'm certainly not an expert on law, much less Washington law.

    That said, I look at the SMD homepage and I see Laser Exhibit A, and note that it's signed by both experts on 10/29/12, go down to page 12 and find L-1198, and see that it's certified on 3/19/12 by AFH (Andrew Hillock), which is before the 10/29/12 signature dates for the certificates. If the officer brings that in, or the court already has it on hand, it would seem like Brendan's argument about time falls apart, no?

    Some of the other links from that home page link to archived versions of the engineers' signed statements, dated every 6 months or so. Now, I didn't look super closely to make sure that they're all word-for-word, but they seem identical apart from the signature dates. I'm not familiar with how the WSP-SMD database stores the calibration information, but I can't imagine that each calibration record also contains copies of those signed statements. It seems much more likely that all the database contains is the stuff listed in the Laser Exhibit A chart (sans signed statements), and that when you do the records search for a particular SMD, it pulls up the records from that database, and also pulls up a copy of those signed statements from somewhere, sticks them together, and that's what you get. My guess is that the code that does that for you hasn't been updated to keep up with the new revisions of the signed statements, and is instead pulling what it thinks is the current version, because it hasn't been pointed to something more up to date. If that's the case, then you're just getting off on a software/coding error.

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