Evidence must be flawless


POSTED: Tuesday, October 06, 2009

Advances in technology have produced valuable tools in law enforcement, resulting in evidence recognized by judges and juries to be virtually flawless. The state Supreme Court issued a reminder last week that devices used to collect that evidence — in this case proof of highway speeding — must be proven to have been tested and operated correctly.

The high court reversed the speeding conviction of Abiye Assaye, who was indicated by a police laser gun to have been driving 90 mph in a 55 mph zone on H-1 freeway near the Radford pedestrian overpass two years ago. The ruling should force police to take steps to prove in court that they have operated the laser gun and trained officers to use it according to the manufacturer's recommendations.

Honolulu Prosecutor Peter Carlisle complained that the ruling “;will open up a whole new can of worms,”; but that is not necessary. Police routinely abide by similar requirements for the use of breathalyzer test results in drunk driving cases.

Showing adherence to laser gun manufacturer's recommendations need not be onerous. The Supreme Court issued a similar edict for use of radar guns 20 years ago.

Officer Jeremy Franks testified in the Assaye case that he conducts four tests of a laser gun to determine that it is working properly before putting it to use. That may or may not have been consistent with the manufacturer's recommendation, but no testimony or other evidence was presented to indicate as much.

Nor did the prosecutor present evidence that Franks was qualified “;by training and experience”; to use the laser gun, conforming to Hawaii's high court standard for evidence captured by a radar gun.

Franks testified that he had taken a four-hour class on how to use the laser gun and was “;certified”; to do so. That also may or may not have conformed with the manufacturer's recommendation, which was not presented in court.

Carlisle said Honolulu police have been using the laser devices to catch speeders in tens of thousands of instances since acquiring them in 1996. That may be because the stakes were too low to appeal convictions to the Supreme Court.

In this case, Assaye was represented by the state Public Defender's Office, obviously to set a precedent that will benefit future defendants in similar cases.

Police and prosecutors belatedly will need to present evidence in those cases to meet the Supreme Court's requirements.