Merit Decision: Court OK’s Admissibility of Radar and Laser Speed Tests Without Expert Testimony or Judicial Notice of the Science. Brook Park v. Rodojev.

By Marianna Bettman on June 17, 2020

“We are satisfied that the scientific principles underlying laser speed-measuring devices are sufficiently reliable and hold that the results of a laser speed-measuring device are admissible in Ohio courts without expert testimony establishing their reliability or the court taking judicial notice of the scientific principles underlying that technology.”

Justice Stewart, Majority Opinion

“Because the majority gives the state a free pass on one of the most essential parts of proving its case for a speeding offense—the reliability of the device that produced the results that will in effect determine the defendant’s guilt or lack of guilt—I dissent.”

Justice Kennedy, dissenting opinion

On June 10, 2020, the Supreme Court of Ohio handed down a merit decision in Brook Park v. Rodojev, Ohio-3253. In a 6-1 opinion authored by Justice Stewart, the Court held that the results of radar or laser speed-measuring devices are admissible in court without expert testimony or judicial notice of the reliability of the underlying scientific principles. Justice Kennedy dissented. The case was argued January 28, 2020.

Case Background

Using an LTI 20/20 laser speed detection device, a city of Brook Park police officer issued a speeding ticket to Appellant Joseph G. Rodojev for driving 15 miles over the posted speed limit in violation of a city ordinance. At a bench trial in the Berea Municipal Court, the trial court admitted and considered the results of the laser device without expert testimony establishing the reliability of the scientific principles underlying the device’s technology. The trial court also did not take judicial notice of the reliability of the device. The court convicted Rodojev, who appealed.

The Appeal

In a unanimous decision, using plain-error review because of Rodojev’s failure to object to the court’s reliability determination, the Eighth District affirmed Rodojev’s speeding conviction. Based on the reasoning in E. Cleveland v. Ferell, the appeals court found that because laser speed detection works on the same principles as radar speed detection, expert testimony establishing the reliability of the scientific principles underlying the radar-gun technology is not required to admit the results from the device into evidence. Device-specific challenges as to proper maintenance and use and challenges to the qualifications of the operator of the device go to the weight, not the admissibility of the evidence. The appeals court found that the reliability of modern laser or radar speed-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 in agreement with the Rodojev case and is also in conflict with Z.E.N.)

Read the oral argument preview of the case here and the analysis here.

Key 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. 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.)

Merit Decision

Analysis

How Does the Court Answer the Certified Question?

In the affirmative

Rodojev’s Position

Rodojev challenges the admissibility of the test results and argues the certified question should be answered in the negative. He urged the Court to hold that the reliability of the scientific principles underlying laser speed measuring devices must be established either by expert testimony or by judicial notice under Evid. R. 201. The Court rejects this position, but recognizes, as did the appeals court, that the high court has not addressed the reliability of the scientific principles underlying the radar speed-measuring devices since it decided Ferell in 1958. It proceeds to do so in this case.

Ferell

In Ferell the Court took judicial notice of the reliability of the scientific principles underlying stationary speed-measuring devices and allowed the results of radar speed measuring devices to be admitted without expert testimony, just as photographs, x-rays, EEGs and speedometer readings had been. The Court also held in Ferell that the sufficiency of the evidence about the accuracy of the device and the qualifications of the operator of the device were to be determined by the factfinder on a case by case basis.

The Science of Speed Measuring Devices

Justice Stewart explains in some detail the science of how stationary and moving radar and laser speed-measuring devices work. You can read that for yourselves if that is your thing.

What Still Need to be Proven in Every Case

Any other substantive challenges to the results of a laser-speed measuring device goes to the weight of the evidence not its admissibility. Stewart gives as examples the angle at which the officer held the device vis a vis the targeted vehicle, the device’s accuracy-validation algorithms, calibration and maintenance schedule, and the qualifications of the officer using the device. All of these are to be determined on a case-by-case basis.

Justice Kennedy’s Dissent

Justice Kennedy accuses the majority of making a policy decision making it easier for the state to convict defendants charged with speeding offenses by allowing the state not to have to prove the reliability of the device that produced the results. She chides the majority for rejecting the methods Ohio courts have been using for years to evaluate the evidence from laser speed measuring devices—that a trial court may consider expert testimony about the device’s reliability pursuant to Evid. R. 702 or taking judicial notice of the reliability of the device either in a reported trial court decision, a reported or unreported case from the appellate court, or previous expert testimony about a specific device that was noted in the trial court record.

Rejecting Ferell

Kennedy chides the majority for “dusting off” Ferell which involved radar technology and applying those principles to laser technology. “In doing so, the majority follows Ferell’s dubious reasoning and converts the role of the trial court from gatekeeper to facilitator,” Kennedy wrote. She also criticizes the Ferell decision as being “tied more to convenience than to science and the law.” These are her other criticisms of Ferell

It was decided before the Ohio Rules of Evidence were adopted
The Court cites but then fails to follow what Wigmore required at the time regarding the use of scientific instruments in Court.
Unlike the authority relied on from case law in New York and New Jersey, Ohio courts were not regularly taking judicial notice of the reliability of speed-measuring devices which they had found reliable in previous cases.

Bottom line to Kennedy: “Ferell was decided relatively early in the development of speed-detection technology and before the adoption of the Ohio Rules of Evidence. The rationale in Ferell does not fit today.

But wait. Kennedy has a lot more criticisms.

Ferell was decided at a time when there was a different standard for expert scientific testimony. The leading test was from Frye v. United States which required a scientific principle be generally accepted in its field. That test has been superseded by the requirements of Evid.R.702 and is no longer good enough. Kennedy chides the majority opinion for not being tied to that evidence rule.

Kennedy notes that while the general scientific reliability of laser speed-measuring devices may be settled, that doesn’t mean that any device the state claims is a laser speed-measuring device actually uses that settled science.

Kennedy is also critical of the majority’s acceptance of the reasoning in Ferell that accepting the reliability of radar speed-measuring devices is the same as accepting x-rays, EEGs and photographs because she notes that those instrumentalities were designed for every day purposes outside the courtroom, not to convict people.

Finally, Kennedy observes that there isn’t a judicial tidal wave allowing the admission of laser speed-measuring devices without first establishing the device’s reliability, noting that some states have chosen to deal with this issue legislatively, which she thinks is the better way to go. (She usually does). Absent such legislation the state should have to prove that the laser speed-measuring devices it uses to convict a defendant in a given case is reliable. Once the reliability of a given device has been established through expert testimony, the court can thereafter take judicial notice of the reliability of that device.

So, Kennedy would find that the lack of the proper foundation from an expert regarding the reliability of the speed measuring device in this case was plain error. She would vacate Rodojev’s conviction.

Case Disposition

The judgment of the court of appeals is affirmed. Rodojev’s conviction is upheld.

Case Syllabus (Aren’t These Rare!)

The results of a speed-measuring device using either radar or laser technology are admissible in court without expert testimony establishing, or the court taking judicial notice of, the reliability of the scientific principles of that technology. However, the factfinder is required to determine whether the evidence presented concerning the accuracy of the particular speed-measuring device and the qualifications of the person who used it is sufficient to support a conviction based on the device’s results. (E. Cleveland v. Ferell, 168 Ohio St. 298, 154 N.E.2d 630 (1958), approved and followed.)

Trial Court Judge (Affirmed)

Berea Municipal Court Judge Mark A. Comstock

Eighth District Panel (Affirmed)

Opinion written by Judge Sean C. Gallagher, joined by Judge Anita Laster Mays, and joined in judgment only by Judge Frank D. Celebrezze, Jr.

Concluding Observations

Both student contributor Maria Ruwe and I correctly called this for Brook Park. The city waived oral argument, which I noted at the time is far from a walk in the park for the other side, because that leaves only the person arguing, here counsel for the defendant, for the justices to fire all their questions at. This one didn’t ever really seem in doubt, although I’m glad to see Justice Kennedy take such spirited exception to going easy on the state in meeting its burden of proof.