oos E-Newsletter #183: The Confrontation Clause v. Traffic Enforcement Cameras


The Sixth Amendment to the U.S. Constitution states, “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …”

Known as the Confrontation Clause, this idea that a defendant should have the ability to face his accusers in order to cross examine them is a pillar of the due process rights enshrined in Western legal tradition. And it is at the heart of many of today’s courtroom battles over the constitutionality of automated photo enforcement—otherwise known as red-light cameras and speed cameras.

At issue is the fact that cameras cannot be confronted or cross examined; there is no one to testify to the circumstances of the alleged violation or to how the camera “evidence” (photos and video footage) was collected, analyzed or transmitted.

The good news is that the Confrontation Clause has gained traction as a legitimate defense against camera tickets. , the Superior Court of California found camera-based data inadmissible as evidence because nobody with firsthand knowledge of how the data were generated or processed was in court to testify or to be cross examined.

In February of this year the  ruled camera evidence was insufficient to convict a driver because there was no technician from the camera company present to testify to the analysis of the evidence. However, shortly after that ruling, another three-judge panel from the same court upheld camera evidence as sufficient for a conviction.

These conflicting decisions are one signal that the Confrontation Clause many not be the panacea many traffic defendants and defense attorneys had hoped for.

Another cause for concern comes from the U. S. Supreme Court itself. Previously, the Supreme Court, through the 2009 Melendez decision, had upheld the requirement for third-party technical personnel to testify to how certain data were compiled and analyzed. By highlighting the pertinence of the Confrontation Clause, this decision has had far-reaching ramifications for photo enforcement and has been used by several appellate courts throughout California to throw out camera-based evidence.

However, another more recent decision may diminish the importance of the Confrontation Clause. , the Supreme Court found that DNA information could be admitted into evidence without the testimony of the technician responsible for the analysis.

This is clearly welcome news for the camera companies and for local law enforcement officials. The Confrontation Clause has become such a stumbling block that camera companies, in order to prevent dismissal of camera tickets, have been flying technicians from Arizona to testify in local Florida traffic courts. They would surely love to stop this expensive practice and get on with the wholesale fleecing of American motorists.

But, before we give up on the Confrontation Clause, let’s take a closer look at the Williams case. First off, the  as the product of a fragmented court, generating little consent among the justices in the plurality and more lucid arguments from those who dissented. One could argue that for these reasons, its power to set precedent may be less than otherwise expected.

Second, from the oos’s perspective, there’s a big difference between the Williams case, which involved a serious crime and presentation of complicated DNA evidence, and a routine red-light camera case. In the former, the evidence in question represented only part of the case against the defendant. In the latter, the camera-produced information is the only “evidence.” Its careful examination should therefore be regarded as vital to the outcome of the case. And that requires the presence of a technician to testify and to be cross examined.

We can’t predict the long-term ramifications of the Williams decision, but it is certain that the Confrontation Clause is under attack. Motorists’ ability to defend themselves against camera citations will depend on who wins this battle—those who believe traffic defendants deserve all the due process protections guaranteed by the Constitution or those who want to “simplify” courtroom procedures as a way to process as many cases as possible.

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