Need advice on how to object/exclude evidence?

[tomekg35]

What is the name of your state (only U.S. law)? Maryland


Need advice on courtroom procedures and evidence /objections, and how to exclude evidence.

Maryland law states that when using photo radar these two sections below need to apply.

What if the annual calibration was NOT done by an independent laboratory as required by Maryland law but by the device manufacturer. Also what if the operator training wasn’t done by the manufacturer but by the the operators employer who is not the manufacturer.

The question is when or and how should I ask for this evidence to be excluded or can I object to the evidence being provided because it doesn’t follow the law in this situation?

Can I ask for the photo evidence to be excluded because of these two sections have not been followed?



(6) (i) A work zone speed control system shall undergo an annual calibration check performed by an independent calibration laboratory.

(ii) The independent calibration laboratory shall issue a signed certificate of calibration after the annual calibration check that:

1. Shall be kept on file; and
2. Shall be admitted as evidence in any court proceeding for a violation of this section.


(4) (i) A work zone speed control system operator shall complete training by the manufacturer of the work zone speed control system in the procedures for setting up, testing, and operating the work zone speed control system.

(ii) On completion of the training, the manufacturer shall issue a signed certificate to the work zone speed control system operator.

(iii) The certificate of training shall be admitted as evidence in any court proceeding for a violation of this section.

 

[wrongsometimes]

Well you are wise to ask these questions. Good for you. Now, you dont want the calibration certificates into evidence at all !

Object to them being introduced (once the DA asks for them to be considered as evidence in the record .. the DA can show the cop documents w/o offering the docs into evidence but to aid in establishing the foundation to get them admitted).

Now 99% of the time, in traffic court, they are very sloppy & dont lay a proper foundation for documents. Find out what proper foundation requirements are for your state (google scholar). Most states have similar requirements. You could also object on the grounds of not having the person who signed the document testify to its varacity see .. Melendez-Diaz v. State of Mass. (right to confront witnesses), see Crawford too (noted in Melendez). So youll have 2 points of objections: 1st) foundation 2nd) right to confront. Every time, every time I have made these objections the court refuses to rule on the right to confront but will always say the foundation has not been met (hence the right to confront is moot) & the documents are not admitted into evidence. There is an excellent case from HI going into radar or lidar cert. of cal. that details foundation requirerments very well.


Is this a civil or criminal case? What discovery are you allowed & pre-trial motions?

I think that "independent lab" means a lab outside the direct control law enforcement; so the manufacturer may be OK to do this work.

Also check and see if a Fry examination was done by your state's courts on this system... I see the sections of the law that regard the admittance of documents into evidence ... that does not mean that they cannot be attacked to exclude them .. you should get these "certificates" and post them here .. people here may find fatal flaws in them.

 

[tomekg35]

Thanks for the info.

A little additional information. This ticket was not issued by the government and/or police officer. A photo ticket is send to the owner a of the car. This is a private company named ACS, they bought their equipment from a German company named Vitronic. I don't understand how the manuf. of the equipment can test these device and certify them and be considered and "independent lab". Do you think they would admit that their equipment wasn't working correctly if there was a problem??

These tickets are handle as a civil case and there is no DA or any other State employee involved.

Basically, when the operator is testifying and is introducing the existence of these documents, do I object exactly at this moment? What do I say exactly?

Or do I wait until it is my time to speak and ask for the evidence to be excluded, but on what grounds? and how I would I word it?

I was sitting in in court yesterday just to see what exactly happens for these kind of tickets and I am NOT too happy. Basically the judge is finding everyone guilty even in situations where there was enough evidence to dismiss the case.

I am not too confident that I will win my case even though I have enough evidence to suggest that these speed devices are not working correctly and there are other issue with them too. There is a good chance that I will appeal if I don't win, therefore, I need to find out when and how to object to statements and/or evidence.

BTW, this is only a $40 without any points, etc. and it will cost me over $300 just to show up for trial, I am doing this purely on principle because I know from all the research I have done over the last 6 months that these specific speed measuring device are not accurate and reliable, and hundreds of innocent people are getting tickets.

What is worst though is the fact that his "Poliscan speed" device is a very complicated machine but the judge doesn't understand that. In his mind it works just like a regular LIDAR gun (which has judicial notice) as used by the police departments which is not correct. I would also like to point out that I am not aware of ANY independent company and/or institution in the USA ever testing this new "speed measuring device" for it accuracy and reliability.

 

[wrongsometimes]

You can argue that the device does not work properly during your presentation of the case; if you lose keeping out the evidence of a violation. But you will need an expert to bring that case to home plate.

But the Melendez-Diaz case I think will win and here is why: the law requires the system to be calibrated (to support convictions on speeding --- find a law noting this and you'll win easily); so the operator will be testifying that these are the calibration certificates of the system (certified by the company? - I see your point & that would be a 3rd objection as you noted). So the "operator" will testify to the accuracy of the certificate of calibration not knowing the qualifications of the person how signed the certificate, not being an expert in the system (does he have a BS degree?, written papers on the system?, etc. in discovery, ask for an expert witness list & any supporting documentation as to their expertise), not knowing how the system is calibrated, not knowing the requirements and actual test methods of testing, not knowing the actual results of the testing. Melendez actually places the burden of certificates back onto the state (before it was on the defendant to get the person who signed them into court).

And the certificate of training for the operator? You are just mandated to accept this into evidence under the law??

Lets face it, you are not going to get an expert witness to testify. And if you want to show the system does not work, that is what the judge would require. So, you win your case during the state's presentation of the case.

When the certificates are attempted to be entered into evidence, that is when you object (not during your presentation of the case, its too late then). If the judge says you can argue against the documents during your case presentation, press him that you don't believe that the documents can be introduced into evidence at all. When I was at my trial the judge tried to railroad me (not really but he was being tough) but I stuck to my guns.

I have my transcript of my speeding trial; it will show when to object. It would want it PM me & I'll shoot you an email.

And if this is a civil case, do you have all options of discovery available? A sneaky thing (legal but sneaky) to do would be to send them a request to admit (files w/DA & copying the court with the request & cert. of service) that you were going 55 MPH. If they dont answer in 30 days then its deemed admitted & you have another avenue before trial: motion to dismiss on the grounds that they admitted you were doing 55 MPH & that is not speeding.

Request for documents is in order asking for witness list, anything else you wish.

I still see the "independent lab" angle not being a winning argument; ACS did not calibrate the equipment themselves.

You may wish to do a FOIA request about the contracts involved with the state/ACS/manufacturer too ...

I have alot of information suggesting that LIDAR equipment can give bogus results but that is not how I attack the technology in court -- I attack the documentation that supports the equipment. I am not an "expert" although I fully understand the devices, read the patents, and can highlight errors of math & operation; but the court does not care unless you are an expert. And really, I guess thats the right way for the court to view information.

In reality, you must win this case during the state's turn at trial through objections & cross examination of witnesses (or before the trial begins). You should motion for a summary judgment (I did this in my case) after the state rests & before you say anything related to you defense... its a simple oral argument. If you lose a motion for summary judgment that means that the judge believes that the state has proven their case .. that would be bad news but at least you would know at that point what you are up against when you have to present your case. Your case would be: I was not speeding, the system does not work because of X,Y,Z although I am not an expert... Judge will come back & say "guilty".

Now if you have documents or other stuff you want to be accepted by the judge then the motion to admit is you only avenue (other than discovery & FOIA documents obtained) to get these into evidence. You can attach documents to the motion & ask them to admit stuff relating to them.

PM me & I can send you some documents to look at (transcript, court opinions).

 

[tomekg35]

I sent you a PM as I would very much be interested in the transcripts.

BTW I have used the Freedom of Information Act to get some information like, contracts between the State and ACS, copies of all certifications, etc. The last think I ask for was the operators manual for the speed measuring device. At first they didn't want to give it to me, their reason, "Industrial Trade Secrets". However after I pushed the issue a little, they finally did send it to me.

There are a few SOP's in there that I am sure the operator isn't following, I may be able to question him on those... Also an interesting section at the end of the manual, titled, " When picture evidence should not be used/submitted as evidence". Basically it gives examples when the pictures are valid and should be used and when they are not valid and should not be used (or ticket should not be given).

To summarize this section. (All the pictures show a square, or as they call it an evaluation template. The first few pages show and say that in order for the picture to be valid to be used in court, the whole license plate and at least part of one wheel/tire must be within in square. Examples are given.
The the last page says, "When not to issue a citation because of an invalid picture". It gives a few examples one of which says and shows this, "The bottom line of the square (evaluation template) MUST below the tires. If it is not the case there is no valid evidence. (or something like that). It shows a picture of a vehicle where the bottom line is not below the tires, but just slightly below where the license plate is - and specifically says that this cannot be used.

Funny thing, looking at the picture I have from my violation, the line is just below the license plate, and no where near "below the tires".

Therefore, according to their own operators manual for the device no ticket should be issued.

Can I used this court????????

Also can I attack the operators knowledge and competence and from yesterdays court cases, I don't think that he actually understands how to system works and has in fact given a few statements/answers that are completely wrong. I believe that they are poorly trained, and actually READ their whole testimony word by word from a piece of paper.

Thanks again,
Tom

P.S. can't use the trick with sending them a request to admit as my court date is January 4th, 2011. There isn't enough time.

 

[wrongsometimes]

I sent you a PM as I would very much be interested in the transcripts.

BTW I have used the Freedom of Information Act to get some information like, contracts between the State and ACS, copies of all certifications, etc. The last think I ask for was the operators manual for the speed measuring device. At first they didn't want to give it to me, their reason, "Industrial Trade Secrets". However after I pushed the issue a little, they finally did send it to me.

There are a few SOP's in there that I am sure the operator isn't following, I may be able to question him on those... Also an interesting section at the end of the manual, titled, " When picture evidence should not be used/submitted as evidence". Basically it gives examples when the pictures are valid and should be used and when they are not valid and should not be used (or ticket should not be given).

To summarize this section. (All the pictures show a square, or as they call it an evaluation template. The first few pages show and say that in order for the picture to be valid to be used in court, the whole license plate and at least part of one wheel/tire must be within in square. Examples are given.
The the last page says, "When not to issue a citation because of an invalid picture". It gives a few examples one of which says and shows this, "The bottom line of the square (evaluation template) MUST below the tires. If it is not the case there is no valid evidence. (or something like that). It shows a picture of a vehicle where the bottom line is not below the tires, but just slightly below where the license plate is - and specifically says that this cannot be used.

Funny thing, looking at the picture I have from my violation, the line is just below the license plate, and no where near "below the tires".

Therefore, according to their own operators manual for the device no ticket should be issued.

Can I used this court????????

Also can I attack the operators knowledge and competence and from yesterdays court cases, I don't think that he actually understands how to system works and has in fact given a few statements/answers that are completely wrong. I believe that they are poorly trained, and actually READ their whole testimony word by word from a piece of paper.

Thanks again,
Tom

P.S. can't use the trick with sending them a request to admit as my court date is January 4th, 2011. There isn't enough time.

With motion to admit, you can ask for continuance if you want; up to you.

But, yes, if they are not following the manual, you should cross examine the operator and see if he is following the manual ... ask him what are the requirements regarding the photo .. make HIM say what they are. Once you are done with this line of questioning then enter the FOIA request (and for it to be admitted, it must be all FOIA documents , your request, their reply); and continue to examine the operator showing him his mistakes & ask him "do you think you got adequate training?" "Who trained you?" "How do you know that this person qualified to train you?". FOIA requests are admissible in court - and try to do it during cross.