The Show

9 January 2010

Robert E. Cooper Jr.

Attorney General and Reporter

P.O. Box 20207

Nashville, TN 37202

Dear General Cooper,

On 7 December 2009, I sent to your office, several general questions concerning the issue of traffic cameras. I had hoped to have those questions answered prior to our last Transportation Committee Meeting. As of today, your opinion has yet to arrive.

In the earlier letter, I asked general questions concerning the broad concepts of burden of proof, privacy, statewide standards, and custody of evidence. Today I want to focus my questions on various aspects of this issue that have been found unconstitutional in other states and by the U.S. Supreme Court. I recognize that Tennessee is sovereign and certainly protects the constitutional rights of our citizens independent of other states, but it does beg the question that if other states present cogent arguments concerning violations of their citizen’s constitutional rights, should we not at least consider the same on behalf of our citizens? I think we must.

In a 2009 U.S. Supreme Court ruling, Melendez-Diaz vs. Massachusetts, the court found that traffic light cameras depend heavily on legal faith in a certificate that claims to confirm the total reliability of a machine. In the Melendez-Diaz case, the high court ruled that merely producing such a certificate in court is insufficient. The court went on to say that a defendant has the right to cross-examine any individual who claims to have certified evidence.

In this ruling, it appears that the court is opening the pathway for lawsuits to challenge the constitutionality on the basis of our right to challenge the human elements of the evidentiary chain. The 6^th Amendment to the U.S. Constitution that guarantees our right “… to be confronted with the witnesses against [us]…” is violated by current traffic camera related court proceedings.

Some have argued that the issue of the evidentiary chain only applies to criminal proceedings. Traffic camera firms believe that Constitutional protections may not apply in states where photo tickets have been made “civil” violations. It is my belief that the U.S. Constitution does not differentiate between the offense levels, thus the Constitution applies and the traffic cameras related to the court proceedings violate the 6^th Amendment.

Justice Antonin Scalia wrote the majority opinion in Melendez-Diaz, a 5-4 case that dealt with a laboratory analysis of drug evidence. The defendant argued that he had a right to question the lab worker who signed a piece of paper that certified the substance he had been carrying was cocaine. The majority agreed that despite the possible hassle involved in confirming each fact at trial, it is essential to the integrity of the court system that questioning of the evidence be allowed.

“The certificates are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination,” according to Justice Scalia. He went on to say, “Respondent and the dissent may be right that there are other ways-and in some cases, better ways-to challenge or verify the results of a forensic test. But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available.”

Question 1) Do current Tennessee laws and the procedures and processes as applied to traffic light cameras violate the Confrontation Clause?

Scalia further argued that the ability to confront witnesses is essential to ensuring that the potential for bias or error in scientific testing is uncovered. “Nor is it evident that what respondent calls neutral scientific testing is as neutral or as reliable as respondent suggests,” Scalia wrote. “Forensic evidence is not uniquely immune from the risk of manipulation… and because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency. A forensic analyst responding to a request from law enforcement officials may feel pressure-or have an incentive to alter the evidence in a manner favorable to the prosecution…the prospect of confrontation will deter fraudulent analysis in the first place.” Justice Scalia struck a blow to the traffic camera industry that by payment methodology has “incentive” to defraud and by contract relationship has “pressure” to perform for its contracting customer.

Question 2) Does the current contractual relationship between camera vendors and cities provide incentive to defraud as Justice Scalia suggests?

Under the high courts ruling, it now clearly is the burden of the state or local authority to ensure that photo enforcement company employees and local law enforcement officers who evaluate the photo evidence must both be present to testify in court in order to satisfy that the constitutionally mandated “confrontation” is allowed to occur. Failure by the state or local authority to comply with this constitutional confrontation causes the proceeding to be repugnant to the U.S. Constitution and as a result mandates that the evidence be excluded and likely results in acquittal.

Question 3) Does the High Courts ruling establish that without the provision of the Confrontation Clause, traffic camera court procedures are unconstitutional?

The Minnesota Supreme Court in a 2007 unanimous decision upheld a September 2006 Court of Appeals decision that found traffic cameras Minnesota violated state law. I recognize that this ruling has no standing in Tennessee, but I respectfully ask your opinion of the arguments presented in Minnesota and their potential application in Tennessee.

The Minnesota ruling found that the City of Minneapolis had disregarded a state law imposing uniformity of traffic law across the state. The justices opined that the photo ticket program offered the accused fewer due process protections than available to motorists prosecuted for the same offences in the conventional manner by a police officer. The court further argued that the city had created a new type of crime: “owner liability for red-light violations where the owner neither required nor knowingly permitted the violation.”

The Minnesota Court emphasized in Duffy that a driver must be able to drive throughout the state without risk of violating an ordinance with which he is not familiar.

The following questions seem appropriate,

Question 4) Did the local jurisdictions disregard uniformity of traffic laws in Tennessee?

Question 5) Do the disregards of uniformity of traffic laws create a conflict in the concept of equal protection in Tennessee?

Question 6) Do the traffic camera laws and the processes associated with the collection of evidence, processing of evidence, notification of violation and related court procedures offer fewer due process protections for Tennessee motorists?

Question 7) Did the Legislature create a new type of crime in Tennessee-Owner liability for red-light violations where the owner neither required nor knowingly permitted the violation?

The Minnesota Supreme Court also struck down the rebuttable presumption doctrine upon which their civil enforcement ordinance was based. According to the Minnesota Justices, “The problem with the presumption that the owner was the driver is that it eliminates the presumption of innocence and shifts the burden of proof from that is required by the rules of criminal procedure.” As a consequence, the Justices conclude that the Minnesota camera law provided less procedural protection to a person charged with a traffic camera violation.

Question If the rebuttable presumption doctrine is unconstitutional in Minnesota, why is it not unconstitutional in Tennessee?

Question 9) Does rebuttable presumption eliminate the presumption of innocence in Tennessee?

Constitutional rights, it now seems, are infringed upon by the enforcement of the camera programs. A strong case exists that the constitutional violations on both procedural and substantive issues included in the Confrontation Clause, self-incrimination, search and seizure, equal protection, and most significantly, due process, by shifting of the burden of proof to the defendant to prove innocence does, in fact, exist. In March 2008, Judge Thomas Phillips of the U.S. District Court for Eastern Tennessee sent a clear message regarding the constitutionality of these devices in Williams vs. Redflex. In his order granting the dismissal of the case on procedural grounds, Judge Phillips stated, “Although this plaintiff lacks standing, the court is constrained to observe that the Red Light Photo Enforcement Program raises numerous Constitutional questions.”

Most Tennessee communities have drafted civil, as opposed to criminal, statutes to prosecute these cases. Civil infractions are not reportable on driving records; hence in these instances, communities count on Tennesseans to not challenge the system. Further, the linguistic maneuvering permits cities to skirt various constitutional protections offered criminal defendants (including motorists cited for speeding violations) that are not invoked in civil cases. However, Tennessee case law seems to negate the criminal vs. civil distinction. The ultimate question is not the language, but whether the fine serves to remedy a violation (civil-like, thus fewer constitutional implications) or whether it is punitive in nature (criminal-like, thus invoking additional constitutional rights).

Red light camera citations certainly fit within this criminal paradigm, because fining an individual who has already run a red light punishes that person for doing so, even if the end goal is to deter future violations. Further evidence of the criminal paradigm posture is that the specific violation itself cannot be remedied. Though cities argue these fines are civil, like a zoning ordinance violation that can be remedied, these fines are in fact punitive and as a consequence trigger additional constitutional protections.

Judge Phillips made a note of this in Williams vs. Redflex stating that “[t]he key issue which must be resolved in these cases in whether the penalty imposed is civil or criminal. If the penalty is indeed criminal, then a panoply of federal constitutional rights, including rights to confrontation and rights against self-incrimination…” must be considered.

Another critical issue to consider is the lack of compliance with the Federal and Tennessee Rules of Evidence which require a party offering photographic evidence into trial to authenticate the photograph. Unfortunately, a very relaxed standard is used in traffic courts concerning evidentiary requirements. In most cases judges do not require the municipality to lay evidentiary foundation before photographs are submitted as conclusive evidence that the defendant is guilty of the violation. Such a lax attitude violates individual rights and erodes the integrity of the judicial system.

Question 10) Do current procedures and processes related to traffic light cameras violate individual rights and/or erode the integrity of the judicial system?

The most insidious issue arising from the application and process surrounding traffic cameras is the unconstitutional shifting of the burden of proof to the defendant. A prevalent notion in the minds of Americans is that in the justice system of this country defendants are innocent until proven guilty. This single fact is an affront to both the U.S. and Tennessee Constitutions.

Question 11) Do current traffic light camera procedures and processes shift the burden of proof to the defendant?

Question 12) If current Tennessee law shifts the burden of proof to the defendant, does this violate the constitutional guarantees of innocent till proven guilty?

Sincerely,

Tony Shipley

State Representative

Related posts:

1. Rep. Tony Shipley has open forum on red light cameras
2. Truth, fairness victims of red-light cameras
3. Rogersville City Attorney Bill Phillips, traffic cameras violate law
4. Tennessee attorney taking Redflex to court!
5. City officials set to discuss red light camera issues