sukharev said:
I see your point. How then does the prosecutor proove that this procedure was sufficient to serve as proof of speeding?
We don't have a prosecutor in traffic infractions. The basic foundation for the presented evidence has to do with road surveys, the officer's training on the device, maintenance and/or pre and post shift testing of the device, and the officer's testimony as to his observations.
It's like watching a vehicle roll through a stop light or a stop sign ... we testify as to what we saw. In the case of radar or lidar, the technical aspects can be challenged. However, visual estimation can be a tough nut to crack provided the training is there.
I think that unless officer or someone else testifies to the accuracy of lidar, the method itself cannot be found reliable (unlike radar, which is nowadays taken for granted when tested properly).
That's not reasonable as the officer is not trained in the technical details of it's operation. It's like the breath machines we use - the Praeger E-PAS ... I'm trained in its operation and the theory as to how it functions, but I am not qualified to explain the technical details of it's operation. If the defense wishes to challenge the device they can subpoena the DOJ labs to provide an expert. The same holds true with the radar/lidar ... if the defense wants to challenge the veracity of the device they can subpoena the manufacturer's expert. In case the defense intends to call an expert of their own, our radar and lidar providers (for my agency) have experts that we can tap at little or no cost.
Therefore, prosecutor needs either judicial notice or expert testimony, doesn't he?
It is already accepted in my state that radar and lidar is accurate. If the defense wishes to contest this, it is their burden to do so. Whether this has to asked of the judge to accept this formally or not, I don't know. I'm not familiar with the specific process. But, I do know that Judicial Notice has been granted for these devices and we have not had to go in to court to present evidence of their accuracy for many, many years - except in response to a valid defense claim.
And what about visual estimation? How can prosecutor prove it was reliable?
As with anything else, it is a matter of credibitility for the trier of fact. Either it is believed that I saw you speed, or it is not. Either the court believes I saw the dope in your pocket, or it doesn't.
It would be wise for the officer in such a case to set the foundation of his training and experience in this area (and radar certification out here requires training and success in visual estimation to +/- 3 MPH, I believe). I have actually had my visual estimations accepted in court simply due to my age and experience (years driving and years in Patrol). Whether this would hold true in every court is questionable - but it does here.
In my case, officer testified that it was part of his training, and therefore he can reliably estimate speed within 3 mph. I believe that this is physically impossible, at least at distance of 1600 feet and ~65 mph, but I am not an expert, just a driver with experience. Why would officer's word be enough, when there should be a record of his training that is a proof? Doesn't this violate rules of evidence?
It can certainly be challenged. But, as with any testimony, it is a matter of credibility. If the court believes that the officer's training and experience is sufficient to grant him that ability then it's in (and I suspect the judge knows the radar training and that it requires what I believe is a 100% success rate in the visual estimation portion to within +/- 3 MPH).
- Carl