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    I encountered the article below in my reading today. It relates a recent Supreme Court ruling ( Melendez-Diaz v. Massachusetts ), which dealt with evidence in
    Message 1 of 1 , Jul 31, 2009
      I encountered the article below in my reading today.  It relates a recent Supreme Court ruling (Melendez-Diaz v. Massachusetts), which dealt with evidence in a drug case, to the rapidly growing business of issuing speeding or red light tickets based on automated cameras.  However,  I see a potential for a much more important application of this ruling.  Federal District Courts and the U.S. Tax court have been routinely accepting secondary and even tertiary evidence of assessment in income tax cases in violation of Rule 1002, Federal Rules of Evidence and ignoring the specific requirements of the law (26 USC 6203) and  regulations (26 CFR 301.6203 -1).   The ruling in Melendez-Diaz v. Massachusetts should now make it possible to force the IRS/DOJ to produce not only a signed assessment and it supporting documents but also the "Assessment Officer" who signed the assessment to testify concerning it.  The cited regulation requires: 
      301.6203-1   Method of assessment.

      The district director and the director of the regional service center shall appoint one or more assessment officers. The district director shall also appoint assessment officers in a Service Center servicing his district. The assessment shall be made by an assessment officer signing the summary record of assessment. The summary record, through supporting records, shall provide identification of the taxpayer, the character of the liability assessed, the taxable period, if applicable, and the amount of the assessment. The amount of the assessment shall, in the case of tax shown on a return by the taxpayer, be the amount so shown, and in all other cases the amount of the assessment shall be the amount shown on the supporting list or record. The date of the assessment is the date the summary record is signed by an assessment officer. If the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed.

      Since 2000 there have been no district directors nor directors of regional service centers, and there is no other regulation which has replaced this one.  While I would not characterize any relationship in an administrative hearing or in court with the IRS as "fun," watching them try to get out of complying with the law and the Supreme Court ruling in Melendez-Diaz might come as close to "fun" as one could get.



      US Supreme Court Threatens Speed Camera Industry

      By The Newspaper
      July 31, 2009

      Red light camera and speed camera manufacturers fear that last month’s US Supreme Court ruling in the case Melendez-Diaz v. Massachusetts could create legal turmoil for the industry. The National Campaign to Stop Red Light Running issued a statement yesterday warning that the ruling has armed motorists with a greater ability to challenge the basis of automated traffic citations. Speed cameras, for example, depend heavily on legal faith in a certificate that claims to confirm the total reliability of a machine’s speed reading. In the Melendez-Diaz case, the high court ruled that merely producing such a certificate in court is insufficient. Defendants have the right to cross-examine any individual who claims to have certified evidence.

      “Violators often object that they cannot challenge their accuser if it is a camera,” Leslie Blakey, executive director of the National Campaign to Stop Red Light Running said. “This new ruling may spur more court cases and lawsuits on the basis of the right to challenge the human elements of the evidentiary chain.”

      Blakey is principal of the Blakey and Agnew public relations firm that five of the top photo enforcement companies — Affiliated Computer Services (ACS), CMA Consulting, Gatso of the Netherlands, Lasercraft of the UK and Redflex of Australia — paid to create the National Campaign to lobby on their behalf. Each of these firms could face a tremendous challenge if their methods are brought into closer scrutiny, although Blakey believes that this constitutional protections may not apply in states where photo tickets have been made “civil” violations.

      Justice Antonin Scalia wrote the majority opinion in Melendez-Diaz, a 5-4 case that dealt with a laboratory analysis of drug evidence. The defendant argued that he had a right to question the lab worker who signed a piece of paper that certified the substance he had been carrying was cocaine. The majority agreed that despite the possible hassle involved in confirming each fact at trial, it is essential to the integrity of the court system that questioning of the evidence be allowed.

      “The ‘certificates’ are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination,” Scalia wrote. “Respondent and the dissent may be right that there are other ways — and in some cases better ways — to challenge or verify the results of a forensic test. But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available.”

      Scalia further argued that the ability to confront witnesses is essential to ensuring that the potential for bias or error in scientific testing is uncovered.

      “Nor is it evident that what respondent calls ‘neutral scientific testing’ is as neutral or as reliable as respondent suggests,” Scalia wrote. “Forensic evidence is not uniquely immune from the risk of manipulation…. And because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency. A forensic analyst responding to a request from a law enforcement official may feel pressure — or have an incentive — to alter the evidence in a manner favorable to the prosecution… the prospect of confrontation will deter fraudulent analysis in the first place.”

      These concerns are especially apt with respect to the photo enforcement industry. In April, for example, lawmakers in France began to raise questions after learning that the private, for-profit company that operates the speed cameras, Sagem, is solely responsible for calibrating the units and certifying their accuracy. The situation is the same in the US, where companies that are in most cases paid on a per-ticket basis, are solely responsible for determining the accuracy of their own machines.

      Under the ruling, it becomes the burden of the state or local authority to ensure photo enforcement company employees show up to testify in court. Failure to testify would result in the evidence being excluded and a likely acquittal.

      “We’re concerned about the potential impact of this ruling on photo enforcement programs across the country,” Blakey said. “We don’t want to see anything jeopardize the public safety benefit of automated enforcement.”

      A copy of the supreme court decision is available in a 350k PDF file at the source link below.

      PDF File Melendez-Diaz v. Massachusetts (Supreme Court of the United States, 6/25/2009)

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