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.