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People
v.
Khaled
(30-2009-304893 – Orange County Super.Ct.,Ap.Div.)
In a written opinion filed May 25, 2010, the Orange County Superior Court appellate panel ruled that automatic photographs of drivers running red lights are hearsay and, absent sufficient foundation, are inadmissible to support a California Vehicle Code violation.
Factual Background
On August 2, 2008, the Santa Ana Police Department issued a traffic citation to Appellant Khaled for driving through an intersection against a red light. No police officer witnessed Khaled allegedly running the red light. Instead, an automatic intersection camera captured the purported violation via digital photograph.
Khaled challenged the violation and a traffic trial was held on the matter. To establish the violation, the prosecution relied primarily upon the declaration of a Santa Ana police officer. The police officer testified about the general area depicted in the photograph; the private company that contracts with the city to install, maintain, and store digital photographs of the intersection; and the police department’s periodic receipt of the photographs from the private company. No individual on behalf of the private company with knowledge of the specific procedures for programming and storage of the automatic photograph system testified at trial.
Khaled objected to introduction of the photograph and police officer declaration at trial as inadmissible hearsay evidence and violative of his confrontation rights. The trial court overruled Khaled’s objections and admitted the photographs as business records, official records, and because a sufficient foundation had been made based upon the police officer’s declaration. The traffic court ruled that Khaled violated the traffic code. Khaled appealed the court’s ruling.
The Appellate Panel reversed the traffic court’s judgment, holding that the photograph was inadmissible hearsay and could not be introduced as evidence under any hearsay exception relied upon by the prosecution.
Legal Analysis
In reaching its decision, the Appellate Panel first discussed the two (2) types of situations where a videotape or photograph is typically admitted into evidence where the photographer or videographer does not testify. The first situation involves a surveillance camera at a commercial establishment. Here, a person usually testifies to being in the building and recounts the events depicted in the video. The video or photograph is admitted if it is a “reasonable representation of what it is alleged to portray.” The second situation involves a “nanny cam” (where the camera is hidden in a room and retrieved at a later time). Here, the video or photograph is admissible in court when the person that hid the camera establishes the time and placement of the camera.
The Panel determined that neither of these situations was analogous to Khaled’s situation, as the police officer could not establish the time in question, the method of retrieval, or that the photograph was a reasonable representation of what it is alleged to portray. Thus, the prosecution failed to lay a proper foundation to introduce the photograph as evidence. Consequently, the photograph contains hearsay evidence.
Finally, the Panel ruled that the photograph could not be introduced as evidence by either the “Official Records” or “Business Records” exception to the hearsay rule. Under the “Official Records” exception, the document in question must be made by a public employee under a legal duty to make such document or report. Here, because no employee of the private photography contractor provided testimony that the company is a public entity or that any of its employees is employed by public entity, the “Official Records” exception does not apply.
For the “Business Records” exception to apply, a witness must be called to lay the proper foundation for admission of the record. The Panel noted that any witness with the requisite firsthand knowledge of the business’ record-keeping procedures may so qualify. Here, the police officer did not qualify as an appropriate witness and did not have the necessary knowledge of underlying workings, maintenance, or record keeping of the private contractor’s system.
Based upon the foregoing, the Appellate Panel ruled that admission of the intersection photograph and police officer declaration was erroneous and an abuse of discretion by the trial court. Because these documents are inadmissible hearsay, the judgment against Khaled must be reversed, as there is a total lack of evidence to support a vehicle code violation.
BY Frank T. Sabaitis
Brad A. Byszewski
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