1. Appeals Court of Massachusetts, COMMONWEALTH, Northern District of Middlesex County v. Irwin SCHWARTZ (2008 WL 1869073 [Mass. App.Ct.] - For opinion see 897 N.E.2d 618) – 3/21/2008 [Appellee Brief]:
- No calibration method offered in evidence and unverified estimation of the speed of passing cars should not pass muster.
- No expert testimony concerning use of a particular moving radar device was offered and should not have been admitted as evidence.
- Submission of citation alone not sufficient to establish violation. Officer Richardson had no recollection of how far past Swartz's vehicle he traveled before turning around, whether other vehicles had to stop to permit him to turn around, how far he had to go south on Union Street before pulling Swartz over, or what his speed was in catching up to Swartz. Accordingly the trial court should not have relied upon Officer Richardson's testimony, which was limited to interpreting the notes he wrote on the citation.
- Judicial notice given to general reliability of laser devices.
- State must establish that spotting officer must be qualified to operate a laser device.
- State must establish that laser device unit was properly maintained or used correctly.
- Chase officer's testimony to spotter's speed reading from laser device is HERESAY in court; the spotter has to testify to the speed read by the spotting officer.
- Trial court improperly shifted burden of proof from prosecution to defendant in regard to demonstrating accuracy of particular radar unit involved, as evidenced by the court's statement that defendant had no proof in regards to his claim that radar was inaccurate, “[Defendant] has no proof now or during trial in regards to his claim that radar is inaccurate if patrol vehicle is in motion.”
- Testimony of police officer that moving radar disclosed defendant's speed as 51 mph in a 30 mph zone was insufficient to sustain conviction, absent testimony from police officer or other proof that radar was used in an area posing a minimal risk of misidentification or distortion, i.e., from heavy traffic, large trucks or large roadside objects such as billboards.
- The trial court may make its determination as to the admissibility of novel scientific evidence from evidence presented to it at trial by the parties; in this regard, expert testimony may be of value, or the court may base its determination on exhibits, treatises or the rationale of cases in other jurisdictions.
- Once novel scientific evidence has been recognized in a substantial number of courts, a trial judge may judicially notice, without receiving evidence, that the procedure has been established with verifiable certainty, or that it rests upon the laws of nature.
- After a bench trial, David Izer was found guilty of speeding. He appeals from the conviction, claiming that evidence obtained from a laser speed detection device should not have been admitted because the state failed to introduce any evidence establishing the reliability of laser-based speed measuring techniques. We agree.
5. Court of Appeals of Virginia, COMMONWEALTH of Virginia v. Ronald W. MYATT (397 S.E.2d 275) – 10/9/1990:
- Driver was entitled to present expert testimony to rebut prima facie speeding case by showing that radar reading was not reliable indicia of speed of driver's automobile because of the reflective quality of driver's vehicle, presence of tractor-trailer truck behind driver's vehicle, angle of radar unit with respect to highway, and height of radar unit above highway.
- There was insufficient evidence of accuracy of radar where certificate used to show reliability of calibrating tuning forks was inadmissible hearsay limited to the testimony of the officer that the radar device had responded appropriately to two tuning forks, the accuracy of which was not established.
6. Court of Appeals of New York, The PEOPLE of the State of New York v. Samuel N. KNIGHT (530 N.E.2d 1273) – 10/27/1988:
- Underlying scientific principles of moving and stationary radar were the same, evidence derived from either should be admissible without need for expert testimony explaining the scientific principles on which such radar measurements are founded.
- Since potential for error is greater when moving radar, instead of stationary radar, measurements are involved, prosecution bears greater burden of proof in demonstrating accuracy of particular radar unit involved when moving radar measurements, and must show that police officer independently verified speed of patrol vehicle and that radar was used in area posing minimal risk of misidentification or distortion, as well as establishing that moving radar was in proper working condition and was operated correctly by one who was qualified and experienced in operation of traffic radar.
- Evidence including moving radar speed measurements was sufficient to sustain speeding conviction.
- Police officer's testimony was insufficient to establish the accuracy of a radar gun used to register defendant's speed, where he did not state the results of the test he conducted establishing that the gun was functioning properly and where he failed to indicate when and where the gun was tested.
- Held that there was not sufficient proof of the accuracy of a radar reading of defendant's speed. Proof of accuracy of particular scientific measuring device used is required as prerequisite to admissibility of results obtained therefrom.
- The accuracy of the particular speedometer should be established by more than one test. If a tuning fork is used, the accuracy of the tuning fork must be established. Either more than one tuning fork at different frequencies or speeds must be used, or in addition to one tuning fork, a patrol car with a calibrated speedometer (certified) should be driven through the “zone of influence” at various speeds.
- As a general rule, in order for the reading speedometer to be admissible into evidence, it should be established that: (1) the device is scientifically reliable; (2) the particular speedometer used in the case being tried is accurate; (3) the operator was qualified; (4) the device was operated properly in the case being tried.
- The qualification of the operator may be shown by his completion of a training program given by qualified instructors.
- The proper operation of the device must be proved, usually by detailed reference by the qualified operator to the procedure called for by the manufacturer of the particular device.
9. The People of the State of New York, District Court of Suffolk County, First District v. Irving PERLMAN (392 N.Y.S.2d 985) – 3/16/1977:
- Is not found guilty of speeding since the radar device was not properly externally tested before and after the setup of the radar unit.
- The police officer's estimate of the speed of defendant's vehicle as seen through his rear view mirror is insufficient corroboration to sustain a conviction for speeding on the basis of the reading of an untested device.
10. Supreme Court of Virginia, CITY OF LYNCHBURG v. Paul WHITEHEAD (195 S.E.2d 858) – 4/23/1973:
- Evidence in speeding prosecution that the uncalibrated speedometer of police car which had been used to test radar unit had been calibrated was insufficient to show speedometer was accurate.
11. Supreme Court of Minnesota, STATE of Minnesota v. David Arnold GERDES (191 N.W.2d 428) – 10/29/1971:
- Trial court could properly take judicial notice of underlying principles and reliability of properly tested and operated radar devices for determining speed of motor vehicles without requiring expert testimony concerning theory and mechanics of a particular unit but that where only means of testing accuracy of radar device with which defendant was timed was internal mechanism which was an integral part of the device, conviction could not be sustained in absence of evidence other than radar reading that defendant had been driving at speed in excess of limit.
12. Court of Appeals of Kentucky, COMMONWEALTH of Kentucky v. Erna Elijah HONEYCUTT (408 S.W.2d 421) – 12/16/1966:
- Courts will take judicial notice of fact that properly constructed and operated radar device is capable of accurately measuring speed of a motor vehicle.
- Court will not take judicial notice of the accuracy of the particular instrument employed on a specific occasion, but will treat, as sufficient evidence of accuracy, uncontested testimony that the instrument was tested within a few hours of its specific use, and found to be accurate, by use of a calibrated tuning fork and by a comparison with the speedometer of another vehicle driven through the radar field.
- It is sufficient to qualify the operator that he have such knowledge and training as enables him to properly set up, test, and read the instrument; it is not required that he understand the scientific principles of radar or be able to explain its internal workings; a few hours' instruction normally should be enough to qualify an operator.
13. Supreme Court of Connecticut, State of Connecticut v. Michael R. TOMANELLI (216 A.2d 625) – 2/1/1966:
- The scientific accuracy of the Dopplershift principle for measurement of speed, if principle is correctly applied, is, in the discretion of the court, a proper subject of judicial notice so that, especially where no evidence attacking it is proffered, expert testimony in explanation of principle is not necessary to preclude to introduction of police radar evidence.
- The tuning forks themselves must be shown to be accurate if they are to be accepted as valid test of accuracy of police radar instrument.
- Conviction could not be sustained on basis of a reading obtained on a radar speedometer where no test of the accuracy of the speedometer was made at the site where the speedometer was set up, or immediately preceding defendant's arrest, and where the only test of the speedometer made was at some unknown time and at some undisclosed place through the use of a tuning fork.
15. Supreme Court, Erie County, New York, PEOPLE v. OFFERMANN (204.Misc. 769) – 10/21/1953:
- Evidence which included readings from radar device used to measure speed of automobiles, was not sufficient to sustain conviction when HERESAY of during testimony of one officer taking the word of another officer about a speed reading.
16. Superior Court of Delaware, Kent County, STATE v. MOFFITT (100 A.2d 778) – 9/23/1953:
- Electronic radar speed meter, if properly functioning and properly operating, is a device that the jury may find to be a correct recorder of speed of one charged with operating an automobile at unlawful speed of rate.
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