Big Brother’s Eye in the Sky: Use of Red-Light Cameras in Accident Litigation

Intersection accidents represent a disproportionate share of vehicle crashes and, therefore, a disproportionate share of litigated cases. Credible witnesses are the key to winning cases, but credible witnesses are rare, can be cross-examined, and are often reluctant to cooperate. The growing ubiquitous presence of red-light cameras and traffic surveillance are beginning to serve as rock-solid witnesses in these often tragic incidents – witnesses who won’t recant, move to Mexico, or crater on the witness stand. Even the most agnostic juries tend to believe their own eyes.

With the help of research by Melissa Fischer, a Marquette law student and MWL law clerk, let’s take a closer look at how you can take advantage of this under-utilized and undisputable evidence.

There were nearly 6,420,000 auto accidents in the U.S. in 2005 alone. The financial toll resulting from these accidents was more than $230 billion. Nearly 3 million people were injured and 42,636 people killed. About 115 people die every day in vehicle crashes in the U.S. – one death every 13 minutes. In the overwhelming majority of these accidents, there is at least one party at fault. For virtually every one of these accidents, a policy of auto insurance provides some sort of claim payments or benefits. In 2007, approximately 2.4 million intersection-related crashes occurred, representing 40 percent of all reported crashes and 21.5 percent of traffic fatalities. In 2009, there were more than 113,000 people injured or killed in red-light running and intersection-related accidents. Nearly two-thirds of these victims were people other than the individual who ran the red light, such as pedestrians, bicyclists, and occupants of other vehicles.

Although they have been around for more than 40 years, red-light cameras have gained most of their popularity in the last decade. Some states utilize red-light cameras solely to catch red-light violations. These states include California, Delaware, Florida, Georgia, New Jersey, North Carolina, Pennsylvania, Rhode Island, Texas and Virginia. Others utilize red-light cameras to prosecute speeders. The states which issue citations for red-light violations as well as speeding include Alabama, Arizona, Colorado, District of Columbia, Illinois, Iowa, Louisiana, Maryland, Missouri, New Mexico, New York, Ohio, Oregon, Tennessee and Washington. Although the use of red-light cameras to prosecute for speeding is not as common, the trend is increasing.

Red-light cameras are usually mounted on poles at all four corners of intersections in order to obtain photographs from multiple directions and different angles. They are meticulously maintained and engineered to accurately capture red-light running violations and intersection collisions. The technology is complex. There are three essential elements associated with red-light cameras: (1) one or more cameras, (2) one or more triggers and (3) a computer. There are typically two induction loop triggers located underground near the crosswalk or stop line, which are used to detect when a vehicle moves past a specified point on the road. This is known as the “detection zone.” The computer serves as a monitor between the triggers and traffic lights. When a vehicle drives over the triggers in excess of a certain speed while the light is red, the triggers are set off and essentially send a signal to the computer to initiate the cameras to photograph the vehicle as it proceeds through the intersection. To trigger the computer, a vehicle must travel over both induction loop triggers at a particular speed. The computer superimposes information onto each photograph such as the date, time, location, speed the vehicle was traveling and the elapsed time between the light turning red and the vehicle entering the intersection. Accordingly, the computer is also programmed to ignore the triggers during the period of time when the lights are green or yellow. There is usually a grace period of approximately half a second once the light turns red, along with a particular speed which a vehicle must be traveling at, to help the computer differentiate between vehicles who are simply attempting to stop and make a right turn on red and those who are clearly running a red light.

Red-light cameras are designed to capture multiple types of violations including turning right without coming to a complete stop, illegal right-hand turns, turning left on a red light, and going straight through a red light. They also catch motorists who violate traffic regulations by blocking intersections, failing to stop at stop signs or behind a stopped school bus, failing to pay a toll, or disobeying railroad crossing signals. Many jurisdictions treat citations issued in accordance with a red-light camera image in much the same way as a general parking ticket; typically, the registered owner of the vehicle is liable regardless of who was driving. Points are generally not assessed against the driver nor does the violation show up on the motorist’s driving record. Citations are issued only upon clear evidence of a traffic violation. Tickets are not automatically issued to every vehicle captured by the red-light cameras. Rather, a trained police officer or other authorized person must review the photos or video footage prior to any citation being issued. Depending on the particular state laws, red-light cameras may be set up to photograph only the rear license plates of the violating vehicles. In the alternative, some states require an actual photograph of the driver.

As you might imagine, most intersection accidents involving the running of a red light will engage the aforementioned triggers and are likely to produce photographic evidence which can prove one party to the accident a victim and the other a liar. It is like Christmas for trial lawyers.

Long gone are the days of utilizing 35mm cameras to produce images of traffic violations. The digital era is here and, consequently, the two main types of cameras used for enforcement of traffic violations are digital and video. There are certain benefits that digital images provide, as opposed to those produced by a 35mm camera, but there is also a significant disadvantage associated with digital images as well. Beginning with the benefits, digital images produce higher resolution and more sharply detailed photographs, and they prevent any reflections or smearing within the image. Digital images provide for much easier and more expedient collection and processing of photographs and, ultimately, a much more timely process of citation distribution. The disadvantage comes into play with regard to admissibility of the image. Courts may be reluctant to allow these images as evidence because of the ease with which they can be tampered with as opposed to 35mm images.

Video has also been used in a number of jurisdictions for many of the same purposes as red-light cameras. Video has primarily been used to determine the speed at which a vehicle approached an intersection or to predict whether a vehicle was going to stop for a red light. If the vehicle does not stop, the video camera tracks it through the intersection and records footage of the violation. Videos have also been useful for non-enforcement activities as well. These activities include monitoring traffic, incident response and crash reconstruction.

As mentioned above, red-light cameras are used in 25 states across the country. The fines associated with violations differ from state-to-state, but can be up to as much as $500 per violation in California. Normally, however, the fines do not exceed $100. As with most new technological developments, there are supporters of red-light cameras as well as many opponents. Those who support the use of red-light cameras say that their purpose is to reduce accidents at intersections while opponents contend that they actually have very little effect on reducing accidents and are merely an income generator. According to the Insurance Institute for Highway Safety (IIHS), red-light cameras have lowered red-light violations by approximately 40-50 percent and have also reduced injury-related crashes by 25-30 percent. Some studies have indicated that there has been an increase in rear-end collisions since red-light cameras have become prevalent, but the IIHS stated that the economic costs incurred from the rear-end collisions were more than offset by the economic benefits from the decreased frequency of right-angle crashes that were experienced after red-light cameras were implemented. Besides the U.S., red-light cameras are used worldwide in countries such as Australia, New Zealand, Canada, United Kingdom, Singapore, Israel and China. The primary U.S. suppliers of the red-light technology are American Traffic Solutions and Redflex Traffic Systems.

There is an ongoing debate as to whether red-light cameras violate constitutional laws protecting the public. As far as privacy goes, the IIHS stated that red-light cameras do not violate the privacy of motorists because driving is a regulated activity on public roads; a regulated activity which drivers agree to abide by when they obtain a driver’s license.

Red-light cameras are similar to traditional enforcement of traffic regulations because they are simply another mechanism to catch those who break the rules. The main legal issues surrounding the admissibility of images produced by red-light cameras are hearsay issues and those involving Confrontation Clause rights. The California Supreme Court recently upheld the admissibility of images and footage produced by red-light cameras in People v. Goldsmith, 59 Cal. 4th 258, 326 P.3d 239 (2014). The Court determined that the photographs are not hearsay because they are not statements made by a person, which is required under the statutory definition of “hearsay.” Therefore, the Court held that machine-created evidence is not hearsay. Additionally, the Court rejected the defendant’s contention that admission of the photographs violated her constitutional right to confrontation. The Court cited to People v. Lopez, 55 Cal.4th 569, 583 (2012) and concluded that because a machine cannot be cross-examined, the introduction of images produced by the machine does not violate the Confrontation Clause of the Sixth Amendment. These issues are undoubtedly dealt with differently from state-to-state.

So effective are these cameras in helping law enforcement catch and convict speeders and red-light runners that entire markets have been created for products which will help motorists avoid them. An example is “Photo-Blocker” – an aerosol spray which places a glossy coating on license plates so that when the camera flashes the license plate is over-exposed and cannot be read. However, the legality of such products is highly questionable. Florida’s § 316.605 states that “Nothing shall be placed on the face of a Florida plate except as permitted by law…”

Obviously, the importance of these cameras in claims handling and litigation lies in our ability to utilize the story a picture tells as evidence in a particular case. As is often the case in our system of federalism, we can have as many as 50 different answers to the same question, depending on the state involved. The admissibility of the photographic and video evidence can mean the difference between winning a case and losing. In Pennsylvania, § 3116(c), which governs automated red-light systems in “first class cities,” states that a recorded image which depicts a violation will be admissible in any judicial or administrative proceeding to determine the liability for the violation. Likewise, § 3117(d) states that a recorded image of a violation shall be admissible for other municipalities which implement the red-light technology as well. In Washington, the admission of the images and videos obtained from red-light technology as evidence is allowed in a court proceeding. In Wisconsin, § 349.02(3)(b) states that “the state and local authorities may not use photo radar speed detection to determine compliance with any speed restriction imposed by §§ 346.57, 346.58, 346.59, 346.595 or 349.11 or a local ordinance in conformity therewith.”

According to the National Conference of State Legislatures (NCSL), the use of speed and red-light cameras in Wisconsin to prosecute speeders is prohibited, but it is unclear as to whether a private citizen could obtain and use the evidence in civil litigation.

In California, statutes provide that “the confidential records and information [. . .] may be retained for up to six months from the date the information was first obtained, or until final disposition of the citation, whichever date is later, after which time the information shall be destroyed in a manner that will preserve the confidentiality of any person included in the record or information.” West’s Ann. Cal. Vehicle Code § 21455.5(d)(3).

Pennsylvania says that recorded images acquired by an automated traffic enforcement system in a first class city “shall be destroyed within one year of final disposition of any recorded event.” 75 Pa. C.S.A. § 3116(e)(4). 75 Pa. C.S.A. § 3117(f)(4), which governs automated red-light systems in certain other municipalities, states that the recorded images shall be destroyed within 30 days following the final disposition of any recorded event.

In Washington, § 46.63.170(g) does not specify a time period in which the images will be stored, but it states that they will not be “retained longer than necessary to enforce this section.”

Insurance claims professionals and subrogation practitioners would be well advised to thoroughly check into the presence of any photograph equipment soon after a loss, before the evidence is destroyed forever.

California’s § 21455.5(g) provides that “[T]he registered owner or any individual identified by the registered owner as the driver of the vehicle at the time of the alleged violation shall be permitted to review the photographic evidence of the alleged violation.” Section 3116(h)(3) in Pennsylvania says that “[t]he notice of violation shall have attached to it a copy of the recorded image showing the vehicle; the registration number and state of issuance of the vehicle registration; the date, time and place of the alleged violation; that the violation charged is under § 3112(a)(3); and instructions for return of the notice of violation.” The same information required for “first class cities,” including a copy of the recorded image depicting the violation, must be attached to the notice of violation under 75 Pa. C.S.A. § 3117(i)(3)(i) for other municipalities.

Washington’s § 46.63.170(e) states that “[t]he photographs, microphotographs, or electronic images evidencing the violation must be available for inspection and admission into evidence in a proceeding to adjudicate the liability for the infraction.” For example, if someone in Seattle wants to view the images or video clip of the violation, they can go to www.ViolationInfo.com and enter the Notice Number and Pin Number printed on the front of their notice. This portends to the possibility of a litigant obtaining the same information through discovery or Freedom of Information requests. Video and still images of an incident are submitted as evidence in municipal court proceedings for prosecution of the violations.

If it looks like a camera and sounds like a camera and acts like a camera, it isn’t necessarily a camera. In speaking with Mequon, Wisconsin Police Chief Steve Graff for purposes of this article regarding the cameras mounted near the top of traffic poles at some of Mequon’s busy intersections, he stated that those cameras are placed there merely to monitor motion and determine when the traffic signals should change. So, not everything that appears to be a possible source of evidence will produce a solid electronic witness in your case. Chief Graff said that these cameras are used instead of the traditional sensors underneath the road because motorcycles were sometimes not heavy enough to set them off, and this would allow traffic to be monitored more accurately. These traffic surveillance cameras ensure that the traffic signals are changing at appropriate intervals based on how heavy the traffic flow is at any given time. The devices are essentially cameras that sense motion and do not record or store any footage. Red-light cameras usually have some size to them, like a big boxy metal case. This is to keep these cash cameras safe from natural elements and from people taking baseball bats to them because they just received a $300 red-light violation fine.

The technology of red-light cameras and their implementation in traffic safety enforcement is relatively new, and the law surrounding its use in court is just now being developed. Just last month the California Supreme Court concluded that the evidence generated by an Automated Traffic Enforcement System (ATES) was adequately authenticated by the testimony of a city officer, and that the ATES evidence did not constitute hearsay. People v. Goldsmith, supra. Case law is not well established, as admitted by the National Highway Traffic Safety Administration (NHTSA) in their 2003 report, Guidance For Using Red Light Cameras.

Red-light cameras raise a number of legal issues and potential challenges, but confronting those challenges is worth it considering the potential value of what that evidence might contain. The most important is whether a jurisdiction treats a red-light camera violation as a civil or criminal offense. Other legal questions could involve a photograph’s authenticity; the distribution or misuse of photographs; violation of a criminal defendant’s right to confront a witness (this was the issue in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 [Supreme Court 2009]); privacy concerns; allegations that the system is primarily designed to generate revenue rather than enforce the law; and presuming that a vehicle’s registered owner is driving when the violation occurs.

Staying on the cutting edge of litigation and evidentiary issues remains the challenge of lawyers, insurance claims professionals,and subrogation practitioners across the country. There can be no doubt that the use of red-light cameras as conclusive evidence in intersection collision cases will prove to be both a valuable resource and a challenge for many years to come.