State v. Williamson

Judge LANSING,

concurring.

I concur with the conclusions of the majority, but write separately to further explain the legal standards that, in my view, are applicable when courts judicially recognize the accuracy of a scientific device, and to caution against the inappropriate loosening or disregard of those standards at the trial court or appellate court level.

Generally, where evidence derived from new technology or new scientific techniques is proffered, the foundation must include a showing that the methodology or scientific principle employed is reliable and yields accurate information or test results. See generally State v. Perry, 139 Idaho 520, 522-23, 81 P.3d 1230, 1232-33 (2003) (evidence of polygraph results); Swallow v. Emergency Medicine of Idaho, P.A., 138 Idaho 589, 592-93, 67 P.3d 68, 71-72 (2003) (medical opinion regarding effect of medication overdose); State v. Konechny, 134 Idaho 410, 417-18, 3 P.3d 535, 542-43 (Ct.App.2000) (methodological basis for counselor’s opinion that child was sexually abused). Over time, however, as a particular scientific methodology becomes less novel and more broadly accepted, appellate courts may determine that the methodology is rehable or, more precisely, may “take judicial notice” of that reliability. Such a determination by an appellate court reheves proponents of the evidence of the need to present foundational evidence in the trial court to show the scientific underpinnings and general reliability of the methodology-

Idaho ease law is not uniform in the terminology used when an appellate court deems a particular device or scientific principal reliable enough for the admission into evidence of its reports or results. Idaho’s appellate decisions have sometimes simply acknowledged or recognized the general acceptance and reliability of the principle or apparatus involved, State v. Rodgers, 119 Idaho 1047, 1049-51, 812 P.2d 1208, 1210-12 (1991) (blood spatter interpretation); State v. Garrett, 119 Idaho 878, 880-81, 811 P.2d 488, 490-91 (1991) (use of horizontal gaze nystagmus testing to show defendant under the influence of alcohol); State v. Hartwig, 112 Idaho 370, 732 P.2d 339 (Ct.App.1987) (use of Intoximeter 3000 to measure breath alcohol concentration), while at least one other decision has taken “judicial notice” of that reliability. State v. Kane, 122 Idaho 623, 624, 836 P.2d 569, 570 (Ct.App.1992) (use of radar to measure speed). In my view, the appellate court’s action in each such case amounts to taking judicial notice of foundational facts — a procedure that is permissible under Idaho Rule of Evidence 201 — regardless of whether judicial notice terminology was used in the opinion. The utilization of judicial notice in this context is explained in a well-known treatise as follows:

It is manifest, moreover, that the principle involved need not be commonly known in order to be judicially noticed; it suffices if the principle is accepted as a valid one in the appropriate scientific community. In determining the intellectual viability of the proposition, of course, the judge is free to consult any sources that he thinks are rehable, but the extent to which judges are willing to take the initiative in looking up the authoritative sources will usually be limited____ And, it should be noted that after a number of courts take judicial notice of a principle, subsequent courts begin to dispense with the production of these materials and to take judicial notice of the principle as a matter of law established by precedent.

2 McCormick on Evidence § 330 (Kenneth S. Broun ed., 6th ed.2006) (footnotes omitted).

As observed by McCormick in this passage, in evaluating whether to accept the general reliability of a scientific device or principle, appellate courts often rely heavily on decisions from other jurisdictions. In my judgment, that is appropriate only when it is apparent that there was a factual basis, either in their evidentiary records or in publications or other sources consulted by those courts, for the courts’ determinations of reliability. Indeed, our Supreme Court has warned that the acceptance of a particular methodology by other jurisdictions should not be followed in lock-step, but instead is persuasive only as those decisions “contain analysis and reasoning which recommends itself to this Court.” See Garrett, 119 Idaho at 880 n. 3, 811 P.2d at 490 n. 3. Appellate decisions that simply declare a device or scientific methodology reliable without explanation are of little value in this inquiry. It is principally this concern that causes me to write separately.

There are three decisions from other jurisdictions that I find provide a persuasive basis to take judicial notice that laser speed detection devices generally provide accurate measurement of vehicle speeds. One is Goldstein v. State, 339 Md. 563, 664 A.2d 375 (1995), where the court held that laser speed measurements are sufficiently reliable to be admitted into evidence. In the course of reaching that holding, the court explained that laser devices are technologically premised on well-understood scientific principles similar to those that underlie an older, widely accepted speed detection device, radar:

Our analysis begins by examining the operation of the LTI 20-20 [laser device]. The theory underlying the LTI 20-20 would be familiar to any student of high school physics. In fact, laser speed devices operate on the same principles as military radar (police radar works somewhat differently). See 1 McCormick on Evidence § 204, at 880 (J. Strong 4th ed.1992). McCormick explains military radar as follows:

The radar antenna transmits microwave radiation in pulses. The equipment measures the time it takes for a pulse to reach the target and for its echo to return. Since the radiation travels at a known speed (the speed of light), this fixes the distance to the target. The changes in the distances as determined from the travel times of later pulses permit the target’s velocity to be computed. Id. § 204, at 880 n. 17.

Laser speed measurements work exactly the same way, except that the device relies on lasers rather than microwave radiation. Laser is an acronym for “light amplification by stimulated emission of radiation.” 15 Funk & Wagnalls New Encyclopedia 410 (R. Phillips ed., 1983).

Lasers are devices that amplify light and produce coherent light beams, ranging from infrared to ultraviolet. A light beam is coherent when its waves, or photons, propagate in step with one another. Laser light, therefore, can be made extremely intense, highly directional, and very pure in color (frequency). Id.

Light and microwaves, the building blocks of lasers and radar, respectively, occupy different points on the electromagnetic spectrum but are otherwise similar. P. Tipler, Physics 852-54 (2d ed.1982). According to the State’s expert, the main advantage that lasers offer over radio-micro waves is that the beam is narrower and therefore easier to keep focused on the target vehicle.

Goldstein, 664 A.2d at 379.

Another particularly important decision is In re Admissibility of Motor Vehicle Speed Readings Prod, by the LTI Marksman 20-20 Laser Speed Detection System, 314 N.J.Super. 233, 714 A.2d 381 (Law Div.1998). There, a New Jersey trial court, in a special proceeding with participation of several defense attorneys serving as amici curiae, oversaw the extensive operational testing of a particular laser speed detector. The court’s opinion describes the testing techniques and results in detail, and concludes that the laser device produced reasonably reliable and uniform results.¹ The court explained the laser’s operation as follows:

A laser is an artificially generated and amplified light which is in the infrared light section of the electromagnetic wave spectrum. It is not visible to the naked eye. It is very concentrated. The laser speed detector fires a series of laser pulses at a selected remote target. When the laser light strikes the target, a portion of the light is reflected back to the detector. Since the speed of light is a known constant, by measuring the time it takes for the laser pulse to travel to the target and back, the detector is able to calculate the distance between the detector and the target. Each laser pulse which is fired and reflected back establishes one distance reading. The laser speed detector fires 43 laser pulses every time the trigger on the detector is squeezed. These 43 pulses are fired in a total period of approximately one-third of a second. If the target at which the laser pulses are fired is a stationary target, each of the 43 pulses will give the same distance reading to the target, and distance will be the only thing that the detector can tell us about the target. However, if the target is moving, each of the 43 pulses will give a slightly different distance reading and the detector can then compute the velocity or speed of the target from the changes in distance divided by the known elapsed time between the firing of each of the laser pulses. In simplest terms, this is the basic theory underlying the use of lasers to calculate speed, and there can be no dispute about its fundamental validity.

Id. at 383-84.

Finally, the Hawaii Court of Appeals in State v. Stoa, 112 Hawaii 260, 145 P.3d 803 (Ct.App.2006), surveyed appellate decisions of other states and also consulted other literature addressing the reliability of laser speed-measuring devices and their scientific underpinnings. That decision includes the following description of the similarities of and distinctions between radar and laser speed detection devices:

(1) The laser gun has a very narrow beam (about three feet wide at a distance of 1000 feet), so that it can pick out a single car for measurement, while the radar beam is roughly 100 times wider (about 300 feet wide at 1000 feet) and can easily have a dozen cars in its beam simultaneously.

(2) Laser speed guns make a direct measurement of how the position of the target changes in time ..., while radar infers the speed from the Doppler-shifted frequency of the reflected waves.

(3) The laser results are calculated and error-checked by a microprocessor, which verifies the individual measurements and the final speed result____

(4) Radar has the advantage of being better in poor visibility weather conditions (fog, rain, snow, etc.). However, the value of radar’s bad-weather capability is questionable, since traffic stops are less likely to be made under bad weather conditions for other reasons, primarily safety concerns.

(5) Radar speed guns can be set up to continuously monitor oncoming traffic without active operator attention, while the laser gun must be carefully aimed and triggered by the operator for each individual measurement.

(6) Laser speed guns are more immune to interference from natural and artificial environmental sources than radar guns____

Stoa, 145 P.3d at 810 (quoting 1 Campbell, Fisher & Mansfield, Defense of Speeding, Reckless Driving and Vehicular Homicide § 9a.02[6], at 9a-9 (2005)). The Hawaii court ultimately determined that it was appropriate to “join the other states that have taken judicial notice of the scientific acceptance of the accuracy and reliability of laser speed-measuring devices.” Id. at 811.

The factual investigations and analyses in the foregoing decisions convince me that this Court should also take judicial notice of the accuracy and reliability of laser speed detection devices just as we, fifteen years ago, took judicial notice of the reliability of radar used for speed measurements in Kane, 122 Idaho at 624, 836 P.2d at 570.

This judicial notice does not, of course, provide the full foundational basis for admission of the speed readings from laser devices. As noted by the majority, it remains necessary to also provide foundation showing that the officer was trained to operate the device, that the device was properly maintained, and that it was used correctly. Even when these foundational prerequisites are met, however, a laser reading is not conclusive of a vehicle’s speed. The opposing party may challenge the accuracy of the reading by showing that the accuracy is doubtful due to flaws in the individual device used, weather conditions, operator error, or other factors.

Lastly, I would note that our decision today applies to the general technique of laser speed measurements and not to a particular individual instrument. Indeed, the record before this Court does not disclose the brand or model of the device used here. A brand-by-brand approval of particularized laser devices should not be necessary to a finding of the general reliability of the overall scientific process. The lead opinion implicitly holds, and I would agree, that the adversarial process is the appropriate avenue to expose design flaws in any particular model of laser speed measuring device.² See Goldstein, 664 A.2d at 381; Stoa, 145 P.3d at 809.

In conclusion, it is my opinion that judicial notice of the accuracy and reliability of a scientific principle or methodology should not be lightly taken. That a few other jurisdictions have done so is not a sufficient basis unless those other jurisdictions present an adequate justification for their conclusions. Likewise, for trial courts, an adequate foundation is not drawn from the mere fact that a device is being used by local law enforcement agencies. This being said, I concur with the majority conclusion that the time has come to judicially recognize the general reliability of laser speed detectors, eliminating the need for detailed foundational evidence concerning their general accuracy or the underlying science.

1 . A New Jersey appellate court approved the trial court’s findings and conclusions. See State v. Abeskaron, 326 N.J.Super. 110, 740 A.2d 690, 694 (App.Div.1999).

2 . Perhaps the most effective and desirable method for assuring the accuracy and reliability of laser devices would be a state agency certification system similar to that which is currently provided for alcohol breath testing devices, see I.C. § 18-8004(4); IDAPA 11.03.01.013, but the Idaho legislature has not, to this point, called for such a certification process.