Training ? - speed est. by eye

[CdwJava]

The Frye standard provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community.

In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the USSC determined that the Federal Rules of Evidence superseded Frye as the standard for federal courts. Some states utilize this federal standard, others still hold steady to the stricter Frye standard. CA still holds to the Frye standard.

Expert testimony and even lay opinion is often allowed in CA pursuant to Evidence Code 800-805. An officer with radar training would likely meet the Frye standard without difficulty. An officer without the training can be examined by the court to determine if he or she may testify as a subject matter expert, and a lot of this would depend on whether or not the defense objected or not. And, since the officer's opinion would not be based on scientific evidence Kelly/Frye might not apply. I have seen courts go in both directions on this, and these sorts of decisions are sometimes the basis for appeals.

The bottom line is that in CA an officer's visual estimation is generally accepted if trained in this technique (radar training and certification) and more vulnerable to defense challenge if no formal training or certification process has been put in place.

 

[wrongsometimes]

The Frye standard provides that expert opinion based on a scientific technique .... place.

I'll agree with that.

 

[AdivceGiver]

I'll agree with that.

I would disagree; unless a Frye test is performed in regards to the method(s) utilized then even an expert opinion would be stricken let alone a layperson's opinion.

I have spoken to several officers and asked about the training. For the officers I talked to they do this in a group setting and agree upon a speed of a moving vehicle & they see if they are correct. They do this several times & then they receive a passing grade. So officers are not individually trained & from what I can discern, the training is rather loose ... nobody fails.

 

[CdwJava]

I would disagree; unless a Frye test is performed in regards to the method(s) utilized then even an expert opinion would be stricken let alone a layperson's opinion.

I have spoken to several officers and asked about the training. For the officers I talked to they do this in a group setting and agree upon a speed of a moving vehicle & they see if they are correct. They do this several times & then they receive a passing grade. So officers are not individually trained & from what I can discern, the training is rather loose ... nobody fails.

What training have you observed? It certainly is not how it is done out here.

The formal training involves providing a visual estimation and then affirming it through the use of radar. There is no group guesswork involved.

Since visual estimation is accepted out here - at least for those with radar training - it would be incumbent upon the defense to raise reasonable doubt as to the officer's observations or evaluation. For those without the formalized training, the defense objections would likely gain greater traction. But, since most visualization of speed is not to obtain an exact speed, but an approximate speed, the leeway is a lot looser and may not even rise to the Kelly/Frye test.

For instance, I do not need to have specialized training to observe a car zipping through a 25 MPH residential neighborhood and estimate his speed to be about 50 MPH. Even if my estimate is off by a third, he is still driving too fast. That's where experience and training can come in.

 

[wrongsometimes]

..if my estimate is off by a third..

Anyone see the problem with this? Off by a third? I would the officer's entire statement as stricken if an officer actually said that in court.

 

[CdwJava]

Anyone see the problem with this? Off by a third? I would the officer's entire statement as stricken if an officer actually said that in court.

I'm just saying that one does not need to be an expert witness to know that someone is driving like a bat out of Hades, not that any officer would say that he could be off by such an amount. If he did say that, then it would certainly lend itself to issues of credibility with regards to speed.

The bottom line is that a visual estimate does not necessarily need to meet Kelly/Frye.

 

[wrongsometimes]

I'm just saying that one does not need to be an expert witness to know that someone is driving like a bat out of Hades, not that any officer would say that he could be off by such an amount. If he did say that, then it would certainly lend itself to issues of credibility with regards to speed.

The bottom line is that a visual estimate does not necessarily need to meet Kelly/Frye.

It is my thought that if a person is going to provide a value for a quantitative measurement then that person should be able to explain the methods that is utilized and be an expert in the method.

If there is not written method; then there are issues. Whose to say how effective and accurate the training results in? This is outside the question of law and becomes a scientific query. A judge is not a scientist.

 

[CdwJava]

It is my thought that if a person is going to provide a value for a quantitative measurement then that person should be able to explain the methods that is utilized and be an expert in the method.

If there is not written method; then there are issues. Whose to say how effective and accurate the training results in? This is outside the question of law and becomes a scientific query. A judge is not a scientist.

Training does not always require such an in depth inquiry.

For instance, I am trained as a Drug Recognition Expert. I have advanced training and experience in the observation, identification, and evaluation of someone being under the influence of drugs. While I can identify the signs and symptoms of a multitude of substances and testify as to my expert opinion, I am not required to explain the medical reasons for the symptomology. The DRE process is well established and accepted throughout the United States and the world.

Likewise with the radar training. The process is legally accepted nationwide.

But, like any testimony, it is subject to challenge and the raising of reasonable doubt.

Ultimately, it is up to a court to determine if the witness can testify as to his opinion or observation if it is objected to by another party. Some things require no specific training foundation: "He was going way too fast," and others might: "He was going 43 MPH."

 

[AdivceGiver]

Some things require no specific training foundation: "He was going way too fast," and others might: "He was going 43 MPH."

I would think that these two sentences would be legal conclusions.
The first one most clearly is. Legal conclusions are easy to strike.

 

[AdivceGiver]

Training does not always require such an in depth inquiry.

For instance, I am trained as a Drug Recognition Expert. I have advanced training and experience in the observation, identification, and evaluation of someone being under the influence of drugs.
"

But you could not say that the behavior you note is from illegal drugs just from your observations, correct? It would require an expert in the identification of drugs (likely from some type of physical testing of the subject). Nor can you identify the drug based on your drug recognition expertise, correct?

Your training is likely in identifying people who are likely under the influence of some substance, not in the actual determination of the drug or its actual use or of the substances legal nature.

And I would guess that it was just a course to detect the telltale signs of the effects of various substances ... like, how can you tell a habitual meth user? (Teeth) -- I simplified it here ,,,

 

[CdwJava]

But you could not say that the behavior you note is from illegal drugs just from your observations, correct? It would require an expert in the identification of drugs (likely from some type of physical testing of the subject). Nor can you identify the drug based on your drug recognition expertise, correct?

That is precisely what the training includes. I can testify that based upon my observations I formed the opinion that the subject was under the influence of [drug category]. I can testify that the person appeared under the influence of a CNS stimulant consistent with methamphetamine, but without a chemical test I could not say definitively that it WAS meth. Though after the arrest based on my opinion, the chemical test should affirm it.

Officers testify as to opinion all the time. DUIs, for instance. Public intoxication. Observations that are consistent with the objective signs of impairment or being under the influence are admissible and always have been even without training beyond the academy. Like any testimony, the observations and conclusions can be countered and are a legitimate line of inquiry on cross examination.

Your training is likely in identifying people who are likely under the influence of some substance, not in the actual determination of the drug or its actual use or of the substances legal nature.

Nope. I have training and experience in identification of persons under the influence of numerous categories of substances and can testify to that fact. In fact, when I was in San Diego County the state would prosecute based solely on the DRE evaluation even without a chemical test - which should say something of the validity of the program and the training.

And while I cannot state with certainty that observations of a subject under the influence of a narcotic analgesic was put into that state by heroin or by overdoing their prescription Hydrocodone, I can make a very educated guess depending on the results of the interview and observations.

And I would guess that it was just a course to detect the telltale signs of the effects of various substances ... like, how can you tell a habitual meth user? (Teeth) -- I simplified it here ,,,

Uh ... no ... the program I took is long and the validation process is rather hefty.

http://www.decp.org/experts/

There are shorter programs that consist of as little as 24 hours, but even the Basic Academy training is sufficient for an officer to testify as to their opinion that a person is under the influence of a controlled substance.