Evidentiary Loophole

The triangular construct of Mathews v. Eldridge, is used to determine whether someone was afforded “the opportunity to be heard `at a meaningful time and in a meaningful manner'” before they were divested of their protected interest.  One a person’s protectable interests have been shown, it remains to be shown below that the procedures were constitutionally insufficient to protect against an erroneous deprivation of those interests.

Massachusetts motorists are afforded a hearing and subsequent appeals prior to any deprivations.  Yet, we insist that CMVI hearings are unfair due to (1) the unconstitutional lack of an evidentiary safeguard under G.L. c. 90, § 17, and (2) a constitutionally defective evidentiary standard under G.L. c. 90C, § 3.  Should this prove true, a motorists’ anger at otherwise being found responsible for Speeding is entirely understandable.

The risk of erroneous deprivation due to a phony speed limit sign is well-nigh certain.  To begin with, phony speed limit signs have the insidious effect of conning motorists into forgoing legitimate CMVI appeals.  Motorists generally waive their right to appeal and pay bogus speeding tickets when they reasonably (but incorrectly) assume that the posted speed limit sign was legit.  “To mount a judicial challenge to a traffic citation takes time and money (almost certainly exceeding the fine), and often involves a great deal of aggravation. In the context of a $40 noncriminal fine, those factors bear much greater weight than the righteousness of one’s cause.” Lepage v. Bumila (“Common experience demonstrates that the payment of a traffic citation is simply a matter of expedience.”).

G.L. c. 90, § 17 sets forth prima facie evidence of a Speeding violation in order to assist the Commonwealth in carrying its burden of persuasion on the issue of “reasonable and proper” speed. Commonwealth v. Whynaught.  Because a posted speed limit has extremely persuasive force as prima facie evidence, it shifts the burden of production to the motorist affirmatively to prove the sign is phony.  This unfortunately handicaps the motorist’s defense, because exculpatory evidence that the speed limit is phony – i.e., lack of a requisite Special Speed Regulation – is readily available to the State, but not readily available to the motorist.  See Care and Protection of Erin, quoting Santosky v. Kramer (State’s ability to assemble its case dwarfs defendant’s).

In Whynaught, the Supreme Judicial Court established an evidentiary safeguard “that some foundation requirement pertaining to the accuracy of the particular radar instrument is appropriate in order to ensure that the persuasive force of scientific results is not improperly triggered.”  Since the introduction of phony speed limit signs as prima facie evidence is even more damaging than inaccurate radar evidence, due process therefore requires commensurate evidentiary safeguards to protect motorists’ rights.  But there’s a simple fix.

All that is needed to eradicate this scourge is to require some evidentiary foundation that a posted speed limit is “duly established,” i.e., the production of the requisite Special Speed Regulation from the Commonwealth’s records.  Such an evidentiary rule would ensure that the persuasive force of prima facie evidence is not improperly triggered by phony speed limit signs.