As a criminal lawyer in Fort Lauderdale, I periodically have clients arrested for driving while under the influence or possession of drugs ask me, “Can the police testify in Court as to the results of a radar gun to show the speed of my vehicle or rely upon a caller ID display to prove that I made a phone call? … Shouldn’t this evidence be considered inadmissible hearsay?” According to Bowe v. State, 785 So.2d 531 (Fla. 4th D.C.A., 2001), radar gun readouts and caller ID displays are not considered inadmissible hearsay and the police can (and routinely) introduce this type of evidence in Court.
The Florida Evidence Code (90.801(1)(c)) defines hearsay as an out-of-court statement of a “declarant” offered to prove the truth of the matter asserted. A declarant is a “person” who makes a statement. Therefore, only statements made by persons fall within the definition of hearsay. This distinction is crucial when determining what testimony is considered inadmissible hearsay.
Radar gun readouts are often relied upon by police officers to prove an individual’s speed of travel in Courtroom proceedings for driving while under the influence. Surprisingly, radar guns do not generate paper printouts for police officers to introduce into evidence. Instead, police officers testify in Court as to what the radar gun registered to prove an individual’s speed.
Similarly, caller ID displays are occasionally relied upon by police officers to prove an individual’s knowledge or involvement in a crime. For example, a police officer may testify in Court that a caller ID readout 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 purchase drugs. Caller ID displays are also relied upon by police officers in domestic violence, stalking, and assault cases.
In both instances, Courts have held that neither the radar gun readouts nor the caller ID displays are considered hearsay because of their designation as machines, and not “persons”, capable of being a declarant within the definition of hearsay. Importantly, these statements (i.e. actual radar readings) are not generated by persons. Conversely, out of court statements generated by persons (i.e. email strings) offered to prove the truth of the matter asserted are considered hearsay. For example, a witness testifying to statements he/she read from an email would be considered hearsay as 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 decalrant 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 cross-examines the person who operated or maintained the machine. In cases involving a radar gun readout or caller ID display, the information introduced is limited to numbers generated by machines, not persons. Additionally, this information cannot be influenced or manipulated by other individuals. As a result, the proper remedy to challenge the evidence is by either: attacking the reliability of the declarant’s statements (i.e. a declarant may have a reason to lie to bolster his case or justify an arrest); highlighting that the declarant could have misread or improperly transcribed the numbers; attacking the reliability of the machine, if applicable; attacking the declarant’s ability to read/understand the machine’s results (i.e. complicated program to interpret retina scans); or by challenging the relevancy of the evidence.
As nothing can be more damning evidence at trial then a radar gun readout or caller ID display, it is important to immediately contact an experienced criminal defense attorney to review such evidence and attack its admissibility or weight at trial.