Metropolitan News-Enterprise


Friday, July 23, 2010


Page 3


Court Rejects Use of Hearsay in Red Light Camera Case


By a MetNews Staff Writer


The use of photographs and a police officer’s declaration to prove that a motorist ran a red light violated the Evidence Code and the driver’s constitutional right to confront his accuser, the Orange Superior Court Appellate Department has ruled.

In a May 21 decision, the panel ordered that a photo enforcement citation issued to Tarek Khaled be dismissed. The ruling is now final after the Court of Appeal denied transfer, and was posted yesterday on the state courts website.

Khaled received a citation from Santa Ana police in August 2008. At trial, the prosecution sought to admit photographs that allegedly showed the defendant running a red light.

The defense objected on the ground that the photographs, which had certain information entered on them, such as the time and date they were taken, were inadmissible hearsay. Orange Superior Court Commissioner Daniel Ornelas disagreed, admitted the photos and a supporting declaration, and found the defendant guilty.

But the appellate panel, comprised of Judges Gregg L. Prickett, Gregory H. Lewis and Karen L. Robinson, said the objection should have been sustained.

Generally, the judges explained, admission of a photograph or videotape requires testimony from the photographer or the person who took the video, or from a person who was present and witnessed the event that the photograph or video purports to depict, or from someone who has personal knowledge as to when the camera was started or stopped.

In this case, however, the panel explained, the prosecution sought to admit the photos through the testimony of a police officer who was familiar with the intersection at which the photo was taken and the procedures used by his department in issuing red light camera tickets, but who “could not establish the time in question, the method of retrieval of the photographs, or that any of the photographs or the videotape were a ‘reasonable representation of what it is alleged to portray.’”

The judges rejected the argument that the photos could be admitted under the business records or official records exceptions to the hearsay rule, because foundational requirements were not met.

“The person or persons who maintain the system did not testify,” the panel explained. “No one with personal knowledge testified about how often the system is maintained. No one with personal knowledge testified about how often the date and time are verified and corrected. The custodian of records for the company that contracts with the city to maintain, monitor, store and disperse these photographs did not testify.”

While the officer who testified could provide general information on how system worked based on his training, the judges wrote, “he was unable to testify about the specific procedure for the programming and storage of the system information.”

The judges reasoned:

“The foundation for the introduction of the photographs and the underlying workings of the Redflex Traffic Systems was outside the personal knowledge of Officer Berg.  If the evidence fails to establish each foundational fact, neither hearsay exception is available....Accordingly, without such foundation, the admission of exhibits Nos. 1 and 3 was erroneous and thus the trial court abused its discretion in admitting these exhibits. Without these documents, there is a total lack of evidence to support the Vehicle Code violation in question.”

The case is People v. Khaled, 30-2009-304893.


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