In ‘Oh, Really?’ the Biederman Blog’s editors — voracious consumers of all matters pop culture — cast a curious, skeptical, fun and smart end-of-the-week eye on popular productions, sharing their keen observations about legal matters these raise.

The Big Bang Theory is a sitcom featuring Sheldon and Leonard, best friends and socially awkward physicists, and their neighbor, the blonde waitress and aspiring actress Penny. In the episode titled   The Excelsior Acquisition, Sheldon, the eccentric, nerdy know-it-all, decides to challenge his red-light-camera ticket in court.  He presents three separate defenses for his violation: 1. He argues that the proceeding is unjust because he cannot confront his accuser (the camera) 2. He asserts the legal doctrine of necessity and 3. He simply asserts, “Penny made me do it.”  Each defense, of course, is immediately dismissed by the judge in comic fashion. But, in fact, in a real court, would a judge snicker or find merit in his geeky defenses?

In arguing that his violation should be tossed because he cannot confront his mechanized accuser — the red light camera — Sheldon asserts the Constitutional Sixth Amendment right, known as the confrontation clause.  See Sixth Amendment.   However, Sheldon’s argument lacks merit because a photograph is not testimonial evidence and thus, the Sixth Amendment right does not apply.   See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (holding that the confrontation clause only applies to testimonial evidence); People v. Cooper, 56 Cal. Rptr. 3d 6, 17 (2007) (holding that photographs are not testimonial evidence). However, Sheldon’s argument does not have to rest on the confrontation clause alone.  He should have applied the hearsay doctrine to seek exclusion of the evidence because the state failed to produce non-hearsay evidence to lay the proper foundation to admit the photograph.  Two recent California Court of Appeals cases discuss this very issue and come to two sharply different conclusions.

In People v. Borzakian, decided on Jan. 23, the higher court reversed the lower court holding on the grounds that prosecutor failed to authenticate red-light photos; the appellate court ruled that the evidence relied on by the lower court was inadmissible hearsay evidence. People v. Borzakian Cal.Rptr.3d (2012) available at 2012 WL 171751.  The court found that the maintenance logs of the automated red-light system were inadmissible because a police officer was not qualified to testify about the logs so the could fall under the Business Records Exception to the Hearsay Rule.  Id.  Here, Sheldon might be able to get his ticket tossed if he could show that police called to testify about his red-light photo were unqualified to authenticate it.

But the Court of Appeals, in People v. Goldsmith, decided on Feb. 28, concluded differently. The judges here affirmed a lower court ruling a defendant violated Vehicle Code 21453 by failing to stop at a red light. People v. Goldsmith,  Cal. Rptr.3d, (2012) available at 2012 WL 662290.  The court rejected Goldsmith’s argument that the automated photo is hearsay evidence that should have been barred as evidence.  The court directly rejected any arguments based on a hearsay theory, saying that “as “demonstrative evidence” photographs . . . are not hearsay.” Id. (citations omitted).   The court also rejected the authentication argument raised in Borzakian and disagreed with that court’s ruling. Id.  Thus, under this analysis, Sheldon could not refute the admissibility of the photographic evidence.

 His next argument is based on necessity.  Vehicle Code Section 21462 allows for a necessity defense, saying an individual may disobey any traffic signal “. . .when it is necessary for the purpose of avoiding a collision or in case of other emergency . . . .” Vehicle Code § 21462.  A judge may find an emergency if an ordinary, prudent person would have disobeyed the signal in the same situation as the defendant. Bilyeu v. City of San Diego, 272 P.2d 789 (1954). The emergency, judges have said, does not have to be wholly unexpected but may include an event that call for immediate action. People v. Ausen, 105 P.2d 321 (1940).  In Sheldon’s case, his need to race Penny to the hospital may have constituted an emergency under the statute.  An ordinary, prudent person might have disobeyed a signal to speed a friend to medical care.

As for Sheldon’s last-ditch bleat that “Penny made me do it,” well, this is not a pure legal argument but might be based in the legal doctrine of duress.  He possibly could advance this if, for example, he could show that had he failed to follow her command to run the stoplight, he might be subject to bodily harm.  It may seem ludicrous that Sheldon could be intimidated by Penny. But consider: his character is the prototypical pencil-necked nerd and Penny is a strong, resilient Midwestern gal. But, really, Sheldon, aren’t you a scientist? And isn’t Penny, your best friend’s honey, really your bff? Even in your comic world, it’s hard to twist facts to support this legal argument of duress.