Tuesday, September 21, 2010

Judicial Activism and Police Authority, or, I Lost in Traffic Court and Now I Want to Grouse About It

-- Posted by Neil H. Buchanan

Early in August, I was stopped in Ithaca for a traffic violation. The officer said that I had failed to stop at a stop sign. I told him that I did stop, and he tried a number of tactics designed to get me to admit that I did not. When none of those ploys succeeded, the clearly-frustrated officer gave me the ticket anyway; but he did tell me that I could contest the ticket in court. Based on Professor Dorf's recent experience with a nearby town's traffic court, as well as word of mouth from other friends and colleagues who live in other New York towns, I had reason to believe that there is a semi-formal plea bargaining system at work in most of the state's traffic courts; so I thought I would go through the process to see what would happen. I also thought that it would be interesting just to see it all through to the end, even if there was no offer-in-compromise forthcoming. (Being on sabbatical has its advantages.)

There are actually some pretty troubling legal issues involved in this otherwise-mundane incident. As an initial matter, the traffic stop includes some rather interesting Miranda-type questions. The officers in Ithaca are apparently trained to get motorists to make statements that could be construed as admissions of guilt. For example, the officer who stopped me said, "You know why I stopped you, right?" and, "Maybe you think that just stepping on the brake counts as stopping?" and, "I'm going to give you a ticket. Is that OK?" Any of these questions could induce a flustered and unwary motorist to say things that would look bad in court. It turns out that a traffic ticket in Ithaca includes a section filled out by the officer that includes any statements made by the motorist that could be deemed incriminating; and the ticket -- which the motorist receives after the contact with the officer -- warns the motorist that that section of the ticket constitutes a deposition admissible in court. In my case, however, none of these tactics worked. My only statement entered on the deposition section was: "I stopped. I don't roll stop signs." Why he put anything in that section is a mystery.

In the first week of September, I went to the traffic court hearing, at which I expected either to be offered a deal or given the opportunity to contest the violation. Neither happened. Instead, it turned out to be a simple plea hearing, after which I was given a trial date. I considered simply paying the fine at that point, but the judge told me that the standard of proof was beyond a reasonable doubt, and he did not seem annoyed by the idea that I was insisting on my day in court. If nothing else, I thought, I would have a story to tell my students about New York State's odd system of local courts (which I discussed in a post during Dorf on Law's infancy).

The trial was handled very informally by an avuncular judge (although I am not sure if he was an actual judge or merely a non-lawyer "justice" in the local system, the court's website providing no relevant information). The judge explained how the trial would work, reiterating the standard of proof, and the officer then recited the circumstances of the traffic stop. I was then sworn under oath and testified that I did, indeed, stop. I also offered testimony that is too personal to relate here, but it was medical information supporting my position. As one would imagine, this entire process lasted only a few minutes.

The judge then said that he was finding me guilty. His explanation was fascinating. He told me that my testimony did not create reasonable doubt, because I was a self-interested party and thus could be expected to lie (although he did not use that word). He then said that my medical information was insufficient, because I would have had to bring in an expert witness (to traffic court!) to testify that there was "no doubt" that my testimony was accurate.

Therefore, assuming that the judge's comments accurately reflected his reasoning, he based his verdict on two very disturbing premises: (1) Everyone who testifies on their own behalf in traffic court is a perjurer, meaning that he does not need to worry about assessing witnesses' credibility or any of the other duties that we normally associate with triers of fact, and (2) The burden of proof is not merely reversed, but is actually higher than the reasonable doubt standard, i.e., a "no doubt" standard that can only be met by expert witnesses -- although it is unclear if even an expert could meet that standard, if the judge felt that an expert that I hired would be presumptively biased in my favor.

As a matter of policy, I could well imagine a regime in which traffic tickets are viewed under different legal standards. It is easy to imagine word getting out that all one must do to beat a ticket is to be willing to spend some time in court and then lie on the stand. We routinely offer a great deal of discretion to police officers, and juries typically believe their testimony in much more serious cases. If we allow traffic court judges to start saying, "I don't believe police officers, even some of the time," the public could come to view the traffic laws with even less respect than they already do.

On the other hand, with constantly-improving technology, it is easy to see how any jurisdiction could solve this problem. We have videos of police stops in most jurisdictions, cameras mounted on traffic lights to catch violators, and so on. Making a video of a stop sign violator should not be difficult for an officer assigned to a particular intersection. Moreover, it actually does take a lot of time to go through the system. Two court appearances, including waiting through other hearings, is more of a commitment of time than many people would be willing or able to undergo, especially since there is no guarantee that the judge would view their testimony as credible (for legitimate reasons, not as a presumption). It does not seem, as a predictive matter, that actually taking the legal standards seriously would lead to lawlessness.

In any event, this is a classic case where a judicial actor has usurped a legislative role. If it does not make sense to try traffic cases on the beyond-a-reasonable-doubt standard, or to believe that people who testify under oath are telling the truth, then it is the state legislature that should say so. No matter where one stands on, say, Griswold, nearly everyone with legal training would view this as rank judicial activism. Low-bore judicial activism, to be sure, but clearly judicial activism.

Returning from this simple legal theory discussion for the first week of 1L, I should add that this loss was otherwise easy for me to take. The judge reduced my fine in recognition of my time spent in court (although he did not tell me what the full penalty would have been, making it impossible for me to know how much leniency was bestowed upon me); and it turns out that violators can erase the "points" from their driving record by taking an on-line defensive driving course. As disappointing outcomes go, this will not keep me awake at night.

Moreover, as a career academic who has never practiced law (and never will), I now have a courtroom war story. And I am retiring with a perfect trial record!