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Florida has had a running battle over red light tickets based on photographic evidence. Most of the debate is cast as a driving safety issue. Taken on this level, the question is how many accidents might be prevented compared to the costs incurred by taxpayers to install the cameras. But there are two costs that have nothing to do with money. One is the very existence of a constant stream of surveillance to which government has access. England largely tolerates this despite the echo of George Orwell’s warning that “Big Brother is watching you.” In England, most areas under surveillance are high-risk areas for violent crime such as parking garages. With these types of cameras, the photographic or film evidence would be supplemented by human testimony about the actual events, somewhat similar to the use of amateur film in police assault cases in California. Police also have used film as supplemental evidence against combative drivers in traffic stops.

The fundamental difference with the red light tickets is that there is normally no human witness to supplement the photograph. Thi separates these cases from the controversy over breath test issues in DUI cases. There is no cross-examination of a mere photograph. In effect, the machine is being permitted to testify against a defendant without challenge. To illustrate, let us imagine a talking red light photographic machine in court with a reasonably alert defense counsel:

Prosecutor: Were you at the intersection of U.S 41 and Cochran on July 4, 2020 at 11:12 AM?

Machine: I was.

P: How were you calibrated at that time?

M: You would have to ask Sgt. Williams. He was the technician who set me up.

P: How long was this before the photograph in this case?

M: To answer that I would have to check his records.

P: Did you take a photograph which is marked for identification as Exhibit 1 for the State?

M: Yes

P: What does this photograph show?

M: An orange Corvette in the intersection.

P: Why did you photograph this particular Corvette — because of its looks?

M: Because it ran the red —–

Defense Counsel: Objection! The machine is drawing a conclusion! The answer is also argumentative and invades the province of the court.

P: The machine should be able to testify as to what it saw, your Honor.

Defense Counsel: The machine cannot give an opinion on the ultimate issue that this Court must resolve. The question itself only asked why the photograph was taken, so an answer about a red light would also be non-responsive.

Judge: The machine’s belief that the Corvette had run a red light might be responsive to the question of why the photograph was taken, but Defense Counsel is correct that the machine cannot decide this case nor give an opinion on the ultimate issue in the case unless it is qualified as an expert. So the Machine’s last answer as given will be stricken. Prosecutor, you may proceed.

P: Do you take pictures of every car passing through your intersection?

M: No. I take a picture when my sensor is triggered.

P: Was your sensor triggered by the orange Corvette in the photograph?

M: Yes.

P: What causes your sensor to be triggered?

Defense Counsel: Objection! The machine has already denied that it knows how it has been calibrated. By analogy to speeding cases, we do not convict by radar alone but must have proof of calibration plus tuning fork checks at the start and close of each shift as well as the testimony of an officer.

Judge to prosecutor: Do you have any witnesses besides the machine?

P: No, your Honor.

Judge: In that case the objection must be sustained. Do you have any other evidence?

P: No, but I would point out that the Court’s ruling makes it impossible to prosecute contested cases based on photographic evidence.

Judge: You are entirely correct, and the United States Constitution is intended to stop prosecutions like this. Every defendant, from an accused driver to an accused murderer, is entitled to cross-examine the witnesses against him. Since the machine cannot speak to its calibration nor to possible error factors, that right of cross-examination is being denied by attempts to proceed by machine alone. We cannot know why the machine’s sensor was triggered from the bare photograph. There is even the possibility, not explored here, that the date and time were caused to be in error by electrical surges or outages.

We did not get this far, but there would have been other difficulties with identifying the driver. The photograph had a license plate, but do we know beyond a reasonable doubt that the owner was driving the car when the photograph was taken? What if it were the owner’s brother or son or a neighbor? And what if there are two owners? Or if the car had been sold recently and not yet transferred? What if a prospective purchaser was taking the Corvette on a test drive? For future reference, your office needs to remember that each Defendant’s personal guilt must be established beyond a reasonable doubt. That standard is fixed in the Constitution and cannot be lowered by statute.

Case dismissed with prejudice! … The Court will stand in recess. (Bailiff) All Rise!

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