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

On January 28, 2020, the Supreme Court of Ohio heard 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 the 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, the trial judge convicted Rodojev of speeding.

The Appeal

In a unanimous decision, the Eighth District affirmed Rodojev’s speeding conviction. 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.)

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.”)

At Oral Argument

Arguing Counsel

Andrew R. Mayle, Mayle LLC, Perrysburg, for Appellant Joseph D. Rodojev

Brook Park waived oral argument in this appeal

Rodojev’s Argument

The conflict in this case is over whether, in a prosecution that completely hinges on the use of technology, the state must prove that the technology is reliable. In this case the speed device goes toward the speed which is the essential gist of the element of the whole offense.

This is not, as the state and its amici assert, simple and undisputable technology. The manufacturer of the LTI/2020 device, in its own marketing materials, says this machine uses sophisticated algorithms. But even if this was simple technology, that should not be a basis to do away with judicial notice. It is doubtful that any lawyer in Ohio could get up before this tribunal and really explain how any particular device actually works.

The defendant is not asking for much here. Mr. Rodojev asks that the state do one of two things- prove reliability either through expert testimony or through judicial notice.  Judicial notice can be proven in one of three ways. The trial court can rely on expert testimony that the court heard in a prior case, the trial court can point to a decision finding the device to be reliable in another case from that court, or from a court of appeals decision in the same district that affirmed the reliability of the device.

This case does not involve a failure to object by the defendant. It involves a failure of proof by the state, which has the burden of establishing the elements of the offense. The defendant’s not guilty plea preserves the defendant’s right to put the state to its burden on each and every element of the case. The entire case rests upon proving speed, which in turn, hinges on the device. That is the only purpose of a laser device. In this situation, the officer needs to be trained. The device needs to be calibrated. But those things only matter if the manufacturer’s device is reliable. The officer would testify as to his or her training, the officer or another witness would testify to the calibration and that evidence would come in. Then the prosecutor could either elicit expert testimony or ask the court to take judicial notice in one of the ways the defendant has argued.

If this Court in this case whittles away at reliability issues, there will be a host of unintended consequences down the road where new technologies may come out and the Court has said the state does not have to use expert testimony any more or require judicial notice.

Another example of the reliability of a device being at issue is in the OVI area. In Cincinnati v. Ilg, for example, the defense was not permitted to get any discovery about the reliability of the Intoxilizer 8000.  This Court rejected the state’s arguments in that case and sided with Ilg, holding that Ilg was entitled to discovery about the reliability of the device.  After that decision, Ohio basically stopped using the Intoxilizer.

The Ferell case, which predates the rules of evidence and the judicial notice rule, discussed radar generally. But this is not a radar case, it is a laser case. It’s the device that must be proven reliable.  In this case, that means the LTI/2020 has to be shown to be generally reliable.

This would be a terrible time to lessen the reliability requirements in criminal cases because of the advent of the proliferation of technology.  That’s why Mr. Rodojev asks that the court of appeals decision be reversed.

What Was On Their Minds

Technology

Don’t government prosecutions depend on technology all the time without the government having to prove its reliability, asked Justice DeWine? If the defense has a copy of a document, the government doesn’t have to prove the copy machine works, he commented. You don’t have to bring in the underlying scientific principles of a copy machine. What if it was an offense where a stopwatch or a clock was critical evidence? There could be a murder case where the time someone was in a certain place established an alibi. Under the defense scenario why wouldn’t someone have to come in and explain how a clock worked? Is the distinction whether it is patented? (Mr. Mayle suggested it was) Any patented technology?  That should be the rule? The scientific basis for any patented technology has to be explained?

Failure to Object

What about the defendant’s failure to object to the introduction of the evidence, asked Chief Justice O’Connor? Did Mr. Rodojev object to the officer’s reliance on the device? Was there a motion to dismiss after the completion of the state’s case?  At the end of the trial?

What Must Be Proven, and How

Is there a difference between proving or demonstrating accuracy through calibration records and testimony from the officers in charge of those devices and what the defense is arguing here, asked Chief Justice O’Connor? She noted that the appellate court found that expert testimony on the scientific principles involved in speed detection should no longer be required for modern laser or speed measuring devices that work on the same principles deemed scientifically established in Ferell over 60 years ago. So that suggests to me the only thing that can be legitimately challenged is calibration and expertise or training of the officer, she added. Is the challenge here to the actual device used? Not the general 100 different devices?

Can judicial notice be raised on appeal, asked Justice Donnelly? Can a Municipal Court that handles thousands and thousands of these types of cases a year just put in a standing order about the technology that is used? (defense answer:no).

Analogies?

Are there any other situations like this, asked Justice French? What about child pornography? That relies solely on images.  Do we have to talk about the technology of the camera and how those images are produced?

When Mr. Mayle raised the Intoxilzer from the Ing case during his argument, Chief Justice O’Connor challenged him immediately. That was a discovery issue, she noted.  It wasn’t a what-are-you-going-to-present at trial issue, adding that there was no challenge to the reliability of the laser prior to the hearing in this case like there was with the Intoxilizer in the Ilg case, where the defense was questioning the actual scientific principles of the measuring device.

How it Looks from the Bleachers

To Professor Emerita Marianna Bettman

Let me start with an observation I have made before.  Anyone who thinks they have caught a break when an opponent waives oral argument best think again. I think having to argue without an opponent is much harder—the only person the justices have to home in on is you.  I think Mr. Mayle must have felt that way in his argument. I give him credit for showing a certain good nature in the face of what looked like fairly uniform skepticism.  I am going to call this one for Brook Park, although I really think this is an area that can use some tidying up, in terms of what needs to be established, when, and how.

The Chief clearly thinks, as her questions suggested, that the only thing that can be legitimately challenged is calibration and the expertise or training of the officer. And despite Mr. Mayle’s insistence that the defendant did not have to object to what he characterized as the state’s failure to prove the essential element of speeding, I think the lack of objection will hurt here. The Chief also clearly agrees with the appeals court that establishing reliance on a technological device does not need to be device-specific.

To Student Contributor Maria Ruwe

Even though Brook Park waived oral argument, I think the Court will affirm Rodojev’s conviction and find for Brook Park. The Court seemed apprehensive about agreeing with Rodojev’s argument because of the potential for broad implications resulting from such a holding. For example, Justice DeWine asked whether the State should have to prove the underlying reliability for stopwatches and clocks. Justice French asked the same question about cameras used in child pornography cases. Rodojev tried to rebut these concerns by emphasizing that obtaining judicial notice is not “asking a lot.” Rodojev also noted that establishing the reliability of technology is especially important today because of the prolific outpouring of new technologies. However, because the reliability of these laser devices has been established in prior cases, I don’t think the Justices see any reason why the reliability needs to be reestablished in subsequent cases. Therefore, I think the Court will find for Brook Park.