Friday, 27 August 2010 00:00
The Village Courts in Nassau preside over violation cases including allegations involving the State’s Vehicle and Traffic Laws occurring within our borders. We are local criminal courts and as such the Criminal Procedure Law and rules of evidence that apply in the case of misdemeanor and felony courts also apply to them. So too do the Constitutions of the United States and the State of New York both of which have right of confrontation clauses contained within their Bill of Rights provisions.
The Bill of Rights, adopted in 1791 as the first 10 amendments of our federal constitution and similar provisions adopted by our State in its own Constitution in 1967 were geared to thwart convictions based upon hearsay and innuendo. This point is driven home, not merely by the constitutional debates of those eras but also by more contemporary examples such as the Broadway play, The Crucible, where rumors allowed for the convictions of humans and animals in Salem, Massachusetts based upon the allegations that they were possessed by evil spirits or witches. The hangings and other executions that then occurred were the by-product of hearsay and trials lacking in the component of cross-examination or juries representing a fair cross-section of the community or even judges who might fairly decide the facts and the law. Certainly defense lawyers and their function of testing the prosecution’s case were non-existent.
Similarly, the red light cameras that have been installed present problems in that the photographs themselves cannot be cross-examined and therefore the burden of proof of beyond a reasonable doubt is easily established by the prosecution. While legislation has allowed for these cameras to be implemented as revenue and safety measures, they cannot presently pass constitutional scrutiny for anyone who wishes to challenge them based upon their assertion of constitutional rights including the right of confrontation. In order for that to occur under our rules of evidence, photos have to be properly authenticated and introduced by someone authorized to take them such as a police officer, who can attest to his or her personal knowledge of the violation. Much like a breath technician in DWI cases, operators of the cameras or equipment should be certified and also capable of testifying about the calibration and operating records of the cameras. This will reduce revenue, increase costs for the prosecution of these cases and reduce the number of convictions. But that is a cost that we must pay if we plan to continue to uphold, protect and defend the Constitutions of the United States and the State of New York. Naturally these constitutional protections should only apply to those asserting them but all others may avail themselves of pleas of guilty. That may save them time and money but it will not help to preserve our constitutional rights.