Lidar cases about to get Frye-d

In his November 6 Sun-Times column, Mark Brown revealed that anybody showing up in Cook County Traffic Court to contest a Chicago speeding ticket, with or without a lawyer, was likely to have the ticket dismissed -- at least if the basis of the ticket was one of those "high-tech LIDAR speed detectors" introduced by the Chicago Police Department three years ago. (Brown's column noted that tickets "based on the reading from traditional radar devices are not being routinely dismissed.") Lidar is an acronym for "Light Detection and Ranging Device." It isn't radar; it allegedly can function like radar in determining the speed of a moving car.

Apparently the City didn't mind dismissing Lidar speeding tickets that much -- at least before Brown's November 6 column -- because, according to that column, "the vast majority of accused speeders [disposed] of their tickets by just mailing in the fine or going to traffic school."

The City began dismissing Lidar speeders after defense attorneys began challenging the admissibility of the Lidar, demanding that local prosecutors "hold a special hearing to prove the scientific basis behind LIDAR before using it as evidence."

That "special hearing" is called a Frye hearing. The name refers to the case of Frye v. United States, 293 F. 1013 (D.C.Cir. 1923). In Illinois, "scientific evidence" such as a Lidar speed reading "is only admissible at trial if the methodology or scientific principle is based is 'sufficiently established to have gained general acceptance in the particular field in which it belongs.'" Snelson v. Kamm, 204 Ill.2d 1, 787 N.E.2d 796, 809 (2003), quoting Frye, internal quotation marks simplified.

Brown's November 6 column said the City 'hadn't gotten around to' asking for a Frye hearing on the admissibility of Lidar evidence. Brown reports that a City Law Department spokesperson told him that "one of the problems is that -- in the cases where it has called a defendant's bluff and agreed to a Frye hearing -- the defendant gives up rather than put up a huge legal fight over a little speeding ticket."

Brown reported in a November 15 follow-up column that the City had stopped routinely dismissing Lidar tickets. Presumably, once Brown spilled the beans, people stopped pleading guilty... and revenue dipped perceptibly. (The Tribune picked up the story on November 9.) Today, Megan Twohey reports in the Chicago Tribune that the Cook County State's Attorney is also pursuing a Frye hearing in a Lidar speeder case.

So the question of the admissibility of Lidar results will soon be determined.

I wanted to check out the case that Brown referred to in his first column on the subject. Brown said it was a Downstate case involving a Naperville lawyer, Michael Canulli, "who was driving with his family to a girls' softball tournament in Springfield nine years ago when he was ticketed on I-55 near Lincoln, where State Police had sprung a massive speed trap. Incensed by their tactics, Canulli took the case to court."

The reported case is People v. Canulli, 341 Ill.App.3d 361, 792 N.E.2d 438 (4th Dist. 2003). The Appellate Court noted that, "No reported cases in Illinois address the admissibility of Lidar laser evidence to measure the speed of vehicles. Where the question of the general acceptance of a new scientific theory is raised, the court is oftentimes asked to establish the law of the jurisdiction for future cases." (792 N.E.2d at 444.)

The Canulli court found "the use of Lidar laser technology to measure the speed of an automobile constitutes 'new' or 'novel' evidence. Therefore, a Frye evidentiary hearing was necessary to determine whether these instruments were admissible as a matter of law. The trial court erred in admitting the results of the Lidar laser unit without conducting a Frye hearing. Because the only evidence of the speed of defendant's vehicle was obtained through the use of a Lidar laser unit, whose general acceptance has not been thoroughly litigated in precedential cases, defendant was denied a fair trial." (792 N.E.2d at 445.)

The Circuit Court of Downstate Logan County had not ignored Frye in convicting Mr. Canulli of speeding. However the Appellate Court determined that the trial court erred in relying on the outcome of a Frye hearing in another case heard in the circuit court, particularly because that hearing "was conducted at the sentencing hearing after defendant pleaded guilty, involved different parties, and the testimony centered on the reliability of the LTI 2020 (a laser-based speed-detection system manufactured by Laser Technology, Inc.), rather than the Lidar laser unit used here. In addition, the record indicates that defendant was not aware that a Frye hearing was going to be conducted prior to the sentencing hearing and, therefore, did not present any evidence or have an expert present." (792 N.E.2d at 444-445.) For these reasons, the Canulli court found that the question of the scientific reliability of Lidar evidence had not been adequately litigated in the prior hearing. The court stated that "relying exclusively upon prior judicial decisions to establish general scientific acceptance can be a 'hollow ritual' if the underlying issue of scientific acceptance has not been adequately litigated." (792 N.E.2d at 445, citation omitted.)

There are only two other Illinois cases in which Lidar is even metnioned. The first of these, People v. Sparks, 335 Ill.App.3d 249, 780 N.E.2d 781 (2nd Dist. 2002), did not involve speeding. Instead, the case concerned the alleged delivery of a controlled substance within 1,000 feet of a church and the Lidar was one of two devices used to measure the relevant distance. The Appellate Court found that the defendant waived the issue of the admissibility of the Lidar evidence. (780 N.E.2d at 784.)

The only other Illinois case to even mention Lidar is People v. Berrier, 362 Ill.App.3d 1153, 841 N.E.2d 1117 (2nd Dist. 2006). In this case, however, Lidar is mentioned only because is was the subject of the Canulli case. The Berrier court cited to Canulli on the question of whether the State is permitted to reopen its proofs after it rests its case and, if so, in what circumstances.