As a Fort Lauderdale criminal attorney, I periodically have clients arrested for driving under the influence or possession of drugs who ask me, “Can the police testify in court about the results of a radar gun to show the speed of my vehicle or trust on a caller ID screen to prove that I made a phone call?…Shouldn’t this evidence be considered impermissible hearsay?” According to Bowe v. Express785 So.2d 531 (Fla. 4th DCA, 2001), radar gun readings and caller ID screens are not considered impermissible hearsay and police can (and routinely) present this type of evidence in court. .
The Florida Evidence Code (90.801(1)(c)) defines hearsay testimony as an out-of-court statement by a “declarant” offered to prove the truth of the matter asserted. A filer is a “person” who makes a statement. Therefore, only statements made by individuals fall within the definition of hearsay. This distinction is crucial in determining what testimony is considered impermissible hearsay.
Police officers often rely on radar gun readings to prove an individual’s travel speed in court proceedings for driving under the influence. Surprisingly, radar guns do not generate paper printouts for police officers to present as evidence. Instead, police officers testify in court about what the radar gun recorded to prove an individual’s speed.
Similarly, police officers occasionally associate caller ID screens to demonstrate an individual’s knowledge of or involvement in a crime. For example, a police officer may testify in court that a caller ID read of an individual’s assigned telephone number on an undercover police officer’s cell phone corroborates that the individual was conspiring with the undercover police officer to sell or buy drugs. Caller ID screens are also linked to police officers in cases of domestic violence, stalking, and assault.
In both cases, the courts have held that neither the radar gun readings nor the caller ID screens are considered hearsay due to their designation as machines, and not “persons,” capable of being declarants within the definition of hearsay. . It is important to note that these statements (ie actual radar readings) are not human generated. In contrast, human-generated extrajudicial statements (ie email chains) offered to prove the truth of the matter asserted are considered hearsay. For example, a witness testifying about statements he read from an email would be considered hearsay since the email was generated by a person, not a machine.
The main justification for the hearsay rule is to provide a defendant the opportunity to cross-examine a deponent who made an out-of-court statement offered to prove the truth of the matter asserted. Remembering that one does not cross-examine a machine; one interrogates the person who operated or maintained the machine. In cases involving a radar gun reading or caller ID screen, the information entered is limited to machine-generated numbers, not human-generated ones. Furthermore, this information cannot be influenced or manipulated by other people. As a result, the appropriate recourse to challenge the evidence is: to attack the reliability of the deponent’s statements (ie, a deponent may have a reason to lie to strengthen their case or justify an arrest); noting that the declarant may have misread or incorrectly transcribed the numbers; attack the reliability of the machine, if any; attack declarant’s ability to read/understand machine output (ie complicated program to interpret retinal scans); or questioning the relevance of the evidence.
As nothing can be more damning evidence in a trial than a radar gun reading or a caller ID screen, it is important to immediately contact an experienced criminal defense attorney to review such evidence and attack its admissibility or weight at trial. .
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