Re: Washington State Radar (long)

["Linus D. Toy" <linust@interramp.com>]

At 06:14 PM 4/6/96 -0700, The Judge wrote:
>*****NOTE***** THIS IS NOT LEGAL ADVICE!!!!!!!!!!!!!!!

This applies to what I write below, too!

>While Linus was correct in citing the Peterson case, the case is now 11
>years old and has been pretty much been outdated by State of Washington
v.Roberts,
>73 Wash.App. 141, 867 P.2d 697 (Ct. of App. 1994).  This case allows radar
>use as admissible evidence IF AUTHENTICATED.  There is no language stating
>that radar gun readings are inadmissible evidence because of the lack of
>foundation problem.  If done right, the gun results are coming in, even by
>certificate if an expert does not testify (if the certificate is admissible
>itself, different problem).
>
>While I am unsure as to the actual procedures of the State of Washington,
>the Court of Appeal opinion from the Second District will most likely be
>binding upon all trial courts in the state.  That is the way it usually
>works.

The Judge was kind enough to forward the text of these two cases to me (I
had previously read the Peterson case, but haven't had need to research its
use or "Shepardize" it).  OK, my use of the term "foundation" may have been
a bit off.  However, I don't think Peterson is outdated;  I differ in my
opinion on the effects of the Roberts case.  my analysis:

First, nowhere in Roberts does the appellate court overrule Peterson.
Second, I also am not sure about the local court rules;  Roberts came from
Div II (olympia), Peterson from Div I (seattle);  the Roberts court cites
Peterson; cases may be advisory only, not binding on lower courts.  Even if
binding, I don't think Roberts undermines the theory in Peterson.

In the Peterson trial, he objected to the offering of radar evidence *at the
time it was offered* by the prosecutor.  His objection was overruled, the
court taking judicial notice [JN] on the accuracy of radar units. On appeal,
the appellate court holds that JN can be taken that science and the Doppler
effect exists, but part of Evidence Rule [ER] 901 requires any tool
employing such process or system to be proven that it is so designed and
constructed that the delievered results are accurate.  This means that the
prosecution, IF ASKED to do so by the defendant (which means following court
rules and such), must show that the *specific* radar unit, its design and
construction  apply the scientific principal (of which JN can be taken, but
safer for prosecutor to provide in this case) on which the readings are
based before the machine's results are admissable evidence.  Peterson must
have asked for such proof, the prosecutor didn't do so, Peterson won.

Roberts is distinguishable from Peterson on a number of points.  From the
facts recited in the appellate court decision, Roberts appears to have made
a serious tactical error during his trial, as well as not following/taking
advantage of  published court rules. (we'll come back to the court rules)

More damaging was his trial conduct:  Roberts DID NOT OBJECT to the offering
of radar evidence at the time offered by the prosecutor, so the evidence is
now properly before the court EVEN THOUGH IT SHOULD NOT HAVE BEEN ADMISSABLE
("can't unring the bell" as C.Z. Smith, a Washington State Supreme Court
justice has said) .  This was fatal.  Instead, he asked the court to dismiss
at the conclusion of the state's case.  In such a motion (for summary
judgement, failure to state a claim), any evidence before the court is
evaluated in the light most favorable to the non-moving party--in this case,
Roberts motioned, the admitted evidence (radar reading, officer's testimony)
is evaluated in favor of the State.  Again, the radar evidence, even though
it shouldn't have been there, was, so the court can consider it.  result:
conviction at trial. (Roberts appealed, won at the Superior Court, the state
appealed to the Court of Appeals, which issued this decision)

The question isn't so much "is radar admissable?" as "what can you do to
keep radar out?"   Key thought from the appellate court:  although required
by ER901, evidence of a process or system need not be authenticated when the
opponent *fails to make proper objection* stating the grounds of
authetication.  If no objection, the requirement is waived.  

Later in the opinion, the appellate court even alludes to ways to re-require
the authentication if you missed objecting at the proper time, by moving to
strike.  Roberts didn't do this either.

On the issue of a CERTIFICATE being used to authenticate the design and
construction of a speed measuring device, this is a part of the court rules
that says if you don't ask for the state to produce an expert (at least 7
days in advance), the court will accept a certificate to authenticate the
design and construction of the device.  This is NOT the same as the court
taking Judicial Notice on the admissability of radar, although in Roberts
case, the effect was the same.  Roberts flubbed this too, and passed on the
opportunity to require the state to produce the witness (court would have
allowed a continuance).

Not suprisingly, Roberts appeared _pro se_ before the Appellate Court, which
leads me to believe he also reprented himself at trial.  Peterson was
represented by counsel on appeal, and probably also so at trial.
oops...just saw that Roberts was an attorney (says so in the opinion).
mustn't be a litigator.  of course, as they say, the attorney who represents
himself has a fool for a client.

In summary, I don't believe there is any change in case law between Peterson
and Roberts.  Roberts simply screwed up.  What this does point out is the
need for a practiced attorney in the field of traffic citations.

*** remember, this is not legal advice ***
--linus
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* linus toy           email:  linust@interramp.com                   *
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