Update: On June 10, 2020 the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read and analysis of the argument here.

On January 28, 2020, the Supreme Court of Ohio will hear oral argument in City of Brook Park v. Joseph G. Rodojev, 2019-0056. At issue in this case is whether the results of any speed measuring device, using either radar or laser technology, is admissible without expert testimony establishing, or the taking of judicial notice of, the scientific reliability of the principles underlying the technology.

Case Background

A Brook Park city police officer issued a speeding ticket to Appellant Joseph G. Rodojev. Using an LTI 20/20 laser speed detection device, the officer confirmed that Rodojev was driving 75 m.p.h. in a 60 m.p.h. zone. The laser speed detection device was calibrated and working properly at the time of the stop. The officer was certified to use the device. Rodojev did not object to officer’s reliance on the speed measuring device at trial. Rather he argued it was improperly used.

The prosecution did not elicit expert testimony or secure judicial notice to establish the reliability of laser technology. Nonetheless, Berea Municipal Court Judge Mark A. Comstock convicted Rodojev of speeding.

The Appeal

In a unanimous decision written by Judge Sean C. Gallagher, joined by Judge Anita Laster Mays, and joined in judgment only by Judge Frank D. Celebrezze, the Eighth District affirmed Rodojev’s speeding conviction. In so holding, the appeals court found that the reliability of modern laser or radar measuring devices that use the same principles that have already been deemed scientifically sound do not need to be re-established in subsequent cases. Rather, the extent of the analysis should be about the qualifications of the operator of the device, the maintenance of the device, and the techniques used when operating the device. The appeals court also noted that virtually everyone agrees that the scientific principles underlying laser speed measuring devices are valid and not created from junk science.

The appeals court sua sponte certified a conflict with its decision and the decision in State v. Cleavenger, 2018-Ohio-446, (7th Dist.) with In re Z.E.N., 2018-Ohio-2208 (4^th Dist.)

Votes to Accept the Case

Yes: Chief Justice O’Connor* and Justices French,* Stewart,* DeWine, Donnelly, Kennedy, and Fischer

*Chief Justice O’Connor and Justices French and Stewart would have certified the conflict only as to In re Z.E.N., 2018-Ohio-2208.

Certified Conflict Question

Whether the results of any speed measuring device, using either radar or laser technology, is admissible without expert testimony establishing, or the taking of judicial notice of, the scientific reliability of the principles underlying the technology.

Conflict Cases*

In re Z.E.N., 2018-Ohio-2208 (4th Dist.) (Lack of expert testimony establishing the reliability of a speed measuring device constitutes plain error due to insufficient evidence.)

*State v. Cleavenger, 2018-Ohio-446 (7th Dist.) (Expert testimony is not required to admit the results of a radar speed measuring device.) (This case is also in conflict with Z.E.N.)

Key Statutes and Precedent

Evid.R. 201 (A court may take judicial notice of unquestionable, adjudicative facts.)

City of East Cleveland v. Ferell, 168 Ohio St. 298 (1958) (Readings from speed measuring devices may be admitted into evidence without establishing the scientific reliability of each new model of the device that captures the images.)

State v. Bonar, 40 Ohio App. 2d 360 (7th Dist. 1973) (Evidence suggesting that the equipment was properly set up and in working order and the operator was qualified to use the device implicates the sufficiency—not the admissibility—of the evidence.)

City of Shaker Heights v. Coustillac, 141 Ohio App.3d 349 (8^th Dist. 2001) (Holding that the defendant waived any error regarding reliability and accuracy of the laser speed measuring device by failing to file a motion to suppress or to object to the testimony.)

State v. Adams, 2004-Ohio-5845 (Any challenges to the individual scientific procedures—such as user or calibration errors— address the weight of the evidence, not its admissibility.)

State v. Wiest, 2008-Ohio-1433 (1st Dist.) (The scientific principle underlying a device’s reliability—not the specific model—must be judicially tested.)

State v. Starks, 2011-Ohio-2344 (12th Dist.) (Even though the underlying principles of laser technology are the same across all devices, judicial notice regarding the reliability of a speed-measuring device is generally device-specific.)

City of Cleveland v. Craig, 2013-Ohio-5742 (8th Dist.) (The reliability of the scientific principles underlying the use of radar can be established without expert testimony or the taking of judicial notice.)

State v. Rogers, 2015-Ohio-2459 (Plain error should be invoked with the “utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice.”)

State v. Clinton, 2017-Ohio-9423 (Scientific evidence must be deemed relevant and reliable to be admitted into evidence.)

Rodojev’s Argument

Before results from a laser speed detection device may be admitted as proof for a speeding conviction, expert testimony or judicial notice must establish the underlying reliability of the device’s technology. Neither occurred here. The lack of a proper foundation establishing the reliability of the laser technology in this case constitutes plain error.

Because the device’s reliability was not established, Brook Park had insufficient evidence to convict Rodojev. Before using the results from the speed detection device as evidence against Rodojev, Brook Park must first have established the device’s reliability by securing judicial notice or eliciting expert testimony. Judicial notice can be established through a reported municipal court decision, a reported or unreported appellate decision, or the previous consideration of expert testimony about a specific device where the trial court notes it on the record. None of these were present here.

Evid. R. 201(D) provides that courts must take judicial notice upon a party’s request and if supplied with the necessary information.  Since the judge in this case had previously declared the device reliable, Brook Park could have asked for judicial notice of the reliability of the device in this case but did not do so.

As a defendant, Rodojev had no obligation at trial to object to the lack of evidence. Brook Park was responsible for presenting sufficient evidence to convict Rodojev. Because Brook Park failed to do so, this Court should vacate Rodojev’s conviction.

Requiring either expert testimony or judicial notice to establish a technology’s reliability prevents unreliable technologies from creeping into the justice system. Robust gatekeeping is important to ensure the reliability of new, advanced technologies that will likely be used in the future.

Brook Park’s Argument*

The trial court did not commit plain error by convicting Rodojev. In a 1993 case, the Berea Municipal Court took judicial notice of the reliability of the Laser LTI device in State v. Crumpton, 93TRD01878-01. In Crumpton, the court entered an order that found the LTI 20/20 unit to be “accurate and reliable to measure vehicle speed.” Although Brook Park admittedly failed to ask the trial court to make the Crumpton finding part of the record in this case, the prior taking of judicial notice of the accuracy and reliability of the equipment in Crumtpon is sufficient to convict Rodojev.

Once judicial notice of the operation and reliability of a radar device is taken, the court need only determine that (1) the radar device was in good operating condition and properly calibrated when it was used; (2) the operator was qualified to use the device; and (3) the operator properly used and read the radar device. Here, the accuracy and reliability of the laser technology was established by the trial court’s previous taking of judicial notice.

Additionally, Rodojev waived his defense of insufficient evidence because he failed to object to the testimony presented at the trial court. Further, Rodojev could have questioned the reliability of the device by retaining an expert, procuring an expert report, and presenting the expert testimony to the trial court. However, he failed to take any of those measures.

Finally, the plain error doctrine should be employed with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. Because no such circumstance exists here, this Court should affirm Rodojev’s speeding conviction.

*Brook Park has waived oral argument in the case.

Amici in Support of the City of Brook Park

Both amici urge the Court to affirm Rodojev’s conviction.

City of Columbus, et al.

The Cities of Columbus, Barberton, Lima, Upper Arlington, New Albany, Athens, and Delaware (“The Cities”) filed an amicus brief in support of the City of Brook Park. The Cities prosecute misdemeanor offenses throughout Ohio. Each of these cities have issued hundreds of speeding tickets and therefore want to ensure the efficient, just, and final disposition of speed traffic offenses.

The Cities urged the Court to recognize a court’s authority to take judicial notice of other courts’ decisions regarding the reliability of laser speed devices, and to hold that expert testimony or judicial notice are not needed each time an updated version of an old technology is introduced to the market.

Cuyahoga County Prosecutor’s Office

The Cuyahoga County Prosecutor’s Office filed an amicus brief in support of the City of Brook Park. The Prosecutor’s Office is interested in this case because it prosecutes speeding offenses every day.

The Prosecutor’s Office argued that once expert testimony or judicial notice establishes the reliability of a general category of a speed measuring device, each specific device within that general category should be deemed reliable. While speed measuring device technology has advanced, the underlying scientific principles have remained the same. Requiring that each individual device must be proved reliable would squander judicial resources.

 Amicus Cuyahoga County Prosecutor’s Office’s Proposed Proposition of Law

The results of any speed measuring device, using either radar or laser technology, is admissible without expert testimony establishing, or the taking of judicial notice of, the scientific reliability of the principles underlying the technology.

Student Contributor: Maria Ruwe