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Robert S. Peters v. State of Florida
SC06-341
PLEASE RISE. >> GOOD MORNING. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. >> OKAY. WE'RE READY FOR CASE OF PETERS VERSUS THE STATE OF FLORIDA. MR. DAVIS. GOOD MORNING, YOUR HONOR. IN THIS CRAWFORD ISSUE PHASE TWO FROM THE LAST, WHAT WE'RE HERE TODAY ON THE FIRST DISTRICT COURT OF APPEAL SAID IT DOES IN THE APPLY IN THE CONTROL THEY CERTIFYED A QUESTION TO YOU, WHETHER OR NOT CRAWFORD APPLIES. IN THE CASE, MR. PETERS WAS PLACED ON 12-MONTH PROBATION FOLLOWED BY 24 MONTHS SUSPENDS SENTENCE OF 24 MONTHS AND DURING THAT 12 MONTHS HIS PROBATION ORDER ORDERED A URINALYSIS TEST AND IT CAME BACK POSITIVE. THE REPORT THAT CAME BACK FROM A COMPANY CALLED FARM KIM THAT SHOWED IT TURNED UP POSITIVE. THE COURT REVOKED PROBATION. >> HOW WAS THAT RECORD PUT INTO EVIDENCE? >> THERE IT IS, YOUR HONOR. >> WHO PUT IT IN? >> THE STATE PUT IT IN. >> I DON'T UNDERSTAND. >> A STATUTORY REQUIREMENT SAYS, ACTUALLY STIPULATED AND AS RELIABLE EVIDENCE. IT CAME IN, STATUTORY REQUIREMENTS THAT THIS REPORT APPARENTLY MET AND CAME IN. >> SO THIS IS DIFFERENT. THIS IS UNDER THE 8036. >> WE HAVE A CERTIFICATION. YES. >> GIVE NOTICE. >> RIGHT. RIGHT. >> RIGHT. THE PROBLEMS YOU WERE HEARING ABOUT ARE NOT HERE. THIS IS CLEARLY BUSINESS INTRODUCED AS BUSINESS RECORD EXCEPTION. SO THE QUESTION, BUT THERE WAS DEFENSE COUNSEL SAID, I WE NEED TO BRING THAT ANALYSTS IN HERE TO TALK ABOUT THOSE SORT OF THINGS HE WENT THROUGH IN THE ANALYSIS. NO, YOU DON'T NEED TO DO THAT. CRAWFORD DOESN'T APPLY BECAUSE THIS IS NOT A CRIPPLE CALL PART OF THE CRIMINAL PROSECUTION WHICH THE 6 AMENDMENT SAYS AN ALL CRIMINAL PROSECUTIONS THE WAY TO CONFRONT THE WITNESSES AGAINST HIM. SO THAT IS THE FIRST DISTRICT, BUT THIS IS A POST, WHAT THEY CALL POST CONVICTION PRECEDINGS WHICH CRAWFORD DOESN'T APPLY. >> WHAT HAS BEEN THE CASE LAW ABOUT, AGAIN, BEFORE CRAWFORD, THE 6th AMENDMENT APPLY TO PROBATION HEARINGS? >> YOUR QUESTION REALLY IS DOES IT APPLY, I AM SORE RUSSIAN DOES IT AFLOIZ SENTENCING HEARING, THAT IS BECAUSE PROBATION IS A DEFERRED SENTENCING, SO THE QUESTION THEN IS REALLY, THAT IS WHAT THE QUESTION IS. THE QUESTION SHOULD ASK. THAT IS CERTAINLY THE QUESTION THAT SHOULD, THAT IS UNDERPINNING THIS WHOLE THING. IS PROBATION PART OF THE SENTENCING, YES, IT IS PART OF THE SENTENCING, YES, YOU HOLD THE CONFRONTATION APPLIES, IN FACT, NOT OM YOU HAVE, BUT THE U.S. SUPREME COURT, THE FLORIDA SUPREME COURT, DONALDSON, A COUPLE OF OTHER CASES AND IT APPLIES IN THE SENTENCING HEARINGS. NOW AN MY ARGUE AM IS VERY SHORT. THIS WAS PART OF THE PROBATION HEARING WAS PART OF THE SENTENCING AND CRIMINAL PROSECUTION INCLUDES SENTENCING AND FLORIDA LAW, NOW, THE PROBLEMNO CARRIERRINGCONNECT 115200 >> YES, YES. >> IT WAS NOT APPLIED TO PROBATION? >> WELL, I AM ASSUMING IT WOULD BE. >> WELL, YES, BEFORE CRAWFORD, AND OHIO, AS TO HEARSAY, HEARSAY OUT OF PROBATION, IT HAS TO SATISFY THE OHIO -- >> CERTAINLY, THERE ARE CASES OUT THERE BEFORE CRAWFORD APPLIED TO OHIO VERSUS RON BETTERS TO PROBATION? >> I DON'T KNOW. >> IT SEEMS -- I MEAN, WE HAVE HAD, WE HAVE HUNDREDS OF CASES IN FLORIDA ON PROBATION HEARINGS. CERTAINLY NOT ONE? >> I DON'T KNOW. >> THE AMENDMENT APPLIED OR NOT? >> I DON'T KNOW. I DON'T KNOW. MY FOCUS IS ON CRAWFORD. I WAYNE -- >>> WE HAVE APPLIED A LESSER DUE PROCESS STANDARD, DO WE NOT AS TO PAROLE AN PROCEEDINGS AND TO FULL CRIMINAL PROCEEDINGS? >> DUE PROS SENSE THE SENSE OF BURDEN OF PROOF, BUT THE TEN ATE GETS THE TROIINGT HAVE A JUDGE THERE AND COUNSEL AND HAS A RIGHT FOR THE STATE TO PROVE ITS CASE. THE ONLY -- >> HOW ABOUT THE ADMISSION OF HEARSAY EVIDENCE? >> WELL, HEARSAY IS ADMISSIBLE UNLESS IT BECOMES THE SOLE BASIS, THAT IS UP UNTIL CRAWFORD. THAT IS WHAT WERE YOU -- THAT IS THE STANDARD. >> SO WE HAVE APPROVED THE ADMISSION AND PROBATION PROCEEDINGS OF EVIDENCE THAT OTHERWISE WOULD NOT BE ADMISSIBLE UNDER HEARSAY ANALYSIS. >> YES. >> HAD CRAWFORD NOT DECIDED, THIS CASE WOULDN'T BE HERE. THIS CASE WAS ADMISSIBLE UNDER HEARSAY. AND YOU KNOW, THERE WOULD HAVE BEEN NO OBJECTION, THE OBJECTION HERE WAS CRAWFORD HAS CHANGED THINGS AN CRAWFORD SAYS THAT I HAVE, PETERSS THE RIGHT TO CROSS-EXAMINE, NOT SIMPLY THE PIECE OF PAPER. I MEAN, THAT IS NOT CROSS-EXAMINATION AS THE 36th AMENDMENT. HAD THE RIGHT FOR THE PERSON WHO PREPARED THIS REPORT. >> GIVEN THAT PROBATION PROCEEDING MAY BE DIFFERENT THAN A PAROLE VIOLATION HEARING OR PROCEEDING, IS IT TRULY A CONTINUATION, WHERE YOU MIGHT HAVE A SENTENCE OF IMPRISONMENT OKAY TO BE FOLLOWED BY A TERM OF PROBATION AND THEN WE HAVE AN ALLEGED PROBATION VIOLATION, BUT WE REALLY ALREADY HAD WHAT TRADITIONALLY BE CONSIDERED A SENTENCING HEARING IN WHICH PROBATION WAS DECIDED SIMPLY TO BE A PART OF THE SANCTIONS IMPOSED ON THE DEFENDANT, SO IS IT, IT IS IT TRULY A CONTINUATION? >> YES. THAT IS WHAT THIS COURT SAID, THAT PROBATION IS A DEFERRED SENTENCING, AND I THINK THE IDEA BEING IS, WE ARE GOING TO GIVE THIS MAN, IN THE CASE, PETERS, AN OPPORTUNITY TO PROVE HIMSELF. ON THE COURSE OF THE 12 MONTHS BEING PROVEEN, WE'LL DISCHARGE. >> SO THERE WOULD BE A DIFFERENT RULE FIT WAS SPLIT SENTENCE? >> A SPLIT SENTENCE BEING THEY CLARIFIED -- MY MINE IS OFF ON THAT. >> GO TO PRISON, AFTER PRICE ON, YOU SERVE A PERIOD OF PROBATION, IF YOU VIOLATE THAT PROBATION, YOU CAN GO BACK TO PRISON? >> RIGHT. NO. I THINK AT THAT POINT, THE WAY FLORIDA SANCTION 948.01 TALKS ABOUT THAT IT APPEARS THE COURT UPON HEARING THE MATTER NOT LIKELY AGAIN TO ENGAGE IN CRIMINAL CONDUCT, IT SHALL STAY, UNTIL PLACING ON PROBATION, SO I THINK WHEN HE GOES TO PRISON FOR AWHILE, THE CRIMINAL PROSECUTION CONTINUED BECAUSE THE COURT IS STILL SAYING, I STILL WANT TO LOOK AT IT SOME MORE. >> WOULD YOU PLEASE FINISH YOUR ANSWER TO JUSTICE PARIENTE WITH REGARD TO THE PRE-CRAWFORD STATUS OF THIS IDENTICAL FACT. >> THEN HE WOULD HAVE BEEN -- HE WOULD HAVE BEEN -- THERE WOULD HAVE BEEN NO OBJECTION ON THE SENSE IT WOULD HAVE BEEN HEARSAY AS BUSINESS RECORD. >> I AM CONFUSED ON THAT BECAUSE 8036 C APPLIES ONLY TO BUSINESS RECORDS. >> AND THAT -- >> AND YOUR BRIEF SAYS FINALLY THE LABORATORY REPORT COULD BE NOT CLASSIFIED AS A BUSINESS RECORD. >> WELL, OKAY. >> THIS IS THE SAME TIME, THE TYPE OF TEST AS WE HAD IN THE LAST CASE. IT IS A LAB REPORT THAT WAS DONE IN TEXAS LAB IN THE CASE, NOT EVEN A FLORIDA LABORATORY. IT IS NOT FDLE, THAT IS WHERE THE RESULTS ARE ACCEPT. >> OKAY. LET ME BACK UP AND REPHRASE THAT THEN. THIS WOULD NOT HAVE BEEN ADMISSIBLE SIMPLY BECAUSE IT IS PREPARED -- EVEN UNDER PRE-CRAWFORD. LET ME BACK UP, ERASE THAT PRIOR ANSWER. IT WOULD NOT HAVE BEEN ADMISSIBLE SIMPLY BECAUSE THIS WAS A REPORT PREPARED IN ANTICIPATION OF LITIGATION, AND THAT IS -- REPORTS PREPARED ARE NOT ADMISSIBLE AS A HEARSAY. >> THAT IS ARGUMENT MADE BELOW? >> NO. IT WAS NOT MADE. >> WAIT. >> THAT ARGUMENT WAS WAIVED BECAUSE -- >> HE SAID CONCEDED THAT THE 8036 C REQUIREMENTS. >> RIGHT. >> MY CONCERN IS SORT OF A CARRYOVER. YES. CRAWFORD CHANGED THE LEAGUE LANDSCAPE, BUT WE NEED TO LOOK AT WHAT WOULD HAVE BEEN THE SITUATION PRE-CRAWFORD AS TO WHAT WOULD HAVE BEEN ADMISSIBLE, WHAT WOULD HAVE NOT, I THINK OUR CASE IS SAYING THAT HEARSAY WAS NOT THE SOLE BASIS FOR ADMISSION COULD COME IN, IMPLIEDLY, WE ARE SAYING THE SAME SIX AMENDMENT GUARANTEES FOR TRIALS WOULD NOT BE -- IMMEDIATE TO BE MET IN PROBATION HEARING, DO YOU AGREE WITH THAT? >> AREA, I THINK SO. ASSUMING THEY ARE SATISFIED M. YES,. THINK THAT IS PROBABLY IT. I THINK CRAWFORD MADE A CHANGE IN THE LEGAL LANDSCAPE. WE START TALKING ABOUT CRIMINAL PROSECUTIONS. THE KEY IN THERE IS DOES IT HAVE THE RIGHT, DID THEY HAVE THE OPPORTUNITY TO CROSS-EXAMINE THE EVIDENCE IN PEOPLE THAT PRESENTED THE EVIDENCE IN PUTTING IN PRISON. SO I AM A LITTLE BIT MYSTIFIED WHY WE ARE GOING BACK BECAUSE CRAWFORD HAS CHANGED, CHANGED THE LEGAL LANDSCAPE ON THE SENSE THAT THIS IS NOW LOOKING AT A CRIMINAL PROSECUTION. THAT WAS THE KEY AND SEEMED TO RESOLVE THE ISSUE FOR THE FIRST DISTRICT IN THE CASE. >> IN CRAWFORD, WE DO TALK IN TERMS OF THESE, THE PRINCIPALS OF CRAWFORD BEING APPLICABLE IN A CRIMINAL PROSECUTION, CORRECT? >> YES. YOU ACKNOWLEDGED THAT IN, I BELIEVE THIS CASE, THE SUPREME COURT HAS SAID THAT A PREBATION LIKE THE PAROLE SPREADING, PROBATION SPREADING IS NOT A CRIMINAL, IS NOT CRIMINAL PROSECUTION, IS THAT NOT CORRECT? SO WOULDN'T CRAWFORD THEN BE ELIMINATING PROBATION AND PAROLE PROCEEDINGS? >> NO. WHAT THEY SAID -- THIS IS WHAT THEY SAID -- PROBATION LIKE PAROLE IS WHAT YOU ARE HINTING AT IS NOT A STAGE OF THE CRIMINAL PROSECUTION, BUT THE KEY CRAWL FY YOU HERE US THE FOOTNOTE 3 SAYS DESPITE THE UNDOUBTED MINOR DIFFERENCES ARE THE COMMENTATORS AGREE THAT PROBATION WERE SENTENCE HAS BEEN PREVIOUSLY, HAS BEEN IMPOSED PREVIOUSLY. >> SAY THAT AGAIN? YOU KEEP PUMP BLING IT. >> I AM SORRY. >> LET ME PICK UP. OKAY. WHERE ARE WE? DESPITE THE UNDOUBTED MINOR DIFFERENCES BETWEEN PROBATION AN PAROLE, THE COMMENTATORS HAVE AGREED THAT PROBATION WHERE SENTENCE HAS BEEN PREVIOUSLY -- I AM SORRY, WHERE SENTENCE HAS BEEN IMPOSED PREVIOUSLY IS CONSTITUTIONAL INDISTINGUISHABLE FROM PAROLE. OKAY. THE CASE IS, WHERE SENTENCE HAS BEEN PREVIOUSLY IMPOSED IN FLORIDA PROBATION IS A CONTINUATION OF THE HEARING. IN A SENSE THAT LIKE I WAS SAYING, THE PROBATION, THE TRIAL JUDGE WANTS TO GIVE THE DEFENDANT A CHANCE TO PROVE HIMSELF, IN THE CASE, GAVE 12 MONTH, SO UNTIL THAT PROBATIONARY PERIOD IS OVER, THE SENTENCING IS NOT OVER ITSELF. THAT IS THE TRUE TEST. THE SPLIT SENTENCE OR IN THE CASE WHERE HE JUST GAVE PROBATIONARY PERIOD. >> WELL, WE DON'T HAVE A SPLIT SENTENCE. >> MO. >> WOULDN'T A SPLIT SENTENCE THEN BE, YOU SAY IT IS A CONTINUATION, THEN, VIOLATION OF THAT SAME SPLIT NOTE IF YOU KEEP TALKING ABOUT WHICH TALKS ABOUT IN POSITION OF SENTENCE. AND IN A TRUE SPLIT SENTENCE, YOU HAVE HAD. >> FOLLOWED BY PROBATION WHICH IS, UNLESS YOU ARE GOING TO SAY THE SENTENCE, THEN THE QUESTION IS -- IN THE TRUE SPLIT SENTENCE, THERE IS A SENTENCE IMPOSED FOLLOWED BY A PERIOD OF PROBATION. I DON'T WANT TO GET OFF ON THE SENTENCE. SINCE WE ARE NOT DEALING WITH IT. >> OKAY. THAT IS WHAT YOU ARE HOLDING IS THAT PROBATION IS IN GREEN VERSUS STATE. PROBATION IS A DEFERRED SENTENCING. >> WHAT WERE THE CIRCUMSTANCES? >> WELL, THAT WAS SAID IN TERMS OF DOUBLE JEOPARDY. >> THAT IS A DOUBLE JEOPARDY CASE, DOUBLE JEOPARDY DIDN'T APPLY, BUT THE STATUTE ITSELF, 94801, THE RULE ALSO CLEARLY SAYING THAT -- LET'S SEE IF CAN I FIND IT. IT IS IN HERE SOMEWHERE. CLEAR LYNN KATES THAT THE SENTENCE HAS NOT -- WHAT DID DOW WITH IT? OH, HERE IT IS. IF IT APPEARS TO THE COURT UPON THE HEARING OF THE MATTER SHALL THE DEFENDANT IS NOT LIKELY AGAIN TO ENGAGE IN CRIMINAL COURSE OF CONDUCT, THE COURT SHALL STAY UPON SUCH DEFENDANT AND PLACE THE DEFENDANT ON PROBATION. SO THE COURT HAS NOT -- NOW IN FLORIDA, I AM MAKING THIS DISTINCTION, IN FLORIDA, THE COURT HAS NOT SENTENCED THE DEFENDANT WHEN HE PUTS HIM ON PROBATION, SO THE CRIMINAL PROSECUTION CONTINUES UNTIL TERMINATION OF A PROBATION BECAUSE THE COURT IS STILL GIVING THE DEFENDANT AN OPPORTUNITY TO PROVE HIMSELF DURING THIS CASE 12 MONTHS SO PROBATION IS PART OF THE SENTENCE AND CONFRONTATION APPLYS TO THE SENTENCING HEARING AND THEREFORE CRAWFORD APPLIES SO THE COURT IN THE CASE WAS WRONG AND SHOULD HAVE ALLOWED THE DEFENDANT TO CROSS-EXAMINE, NOT SIMPLY THE PAPER, BUT THE PERSON WHO PREPARED THIS REPORT AN I WOULD LIKE TO STEP BACK HERE AND TAKE A LOOK AT WHAT IS HAPPENING IN THE FIRST OPINION. IF WE, IF WE ALLOW THE FIRST DISTRICT OPINION TO STAND. IT IS A STRANGE PROCEEDING TO GO TO. YOU HAVE A DEFENSE LAWYER, YOU GOT A PROSECUTOR, YOU GOT A JUDGE, THEN YOU HAVE A PIECE OF PAPER. WHERE IS THE PROCEDURE HERE? THIS IS WHAT WE ARE TALKING ABOUT FUNDAMENTALLY, ARE WE GOING TO MAINTAIN A PROCEDURE IN THE CASE? WHEN THE DEFENDANT CAN'T SAY ANYTHING, CAN'T ATTACK THE CASE AGAINST HIM, IT REALLY PUTS A SHAMBLE? >> LET'S ADDRESS THAT POINT. UNDER 8036 C, THE DEFENDANT HAS AN OPPORTUNITY IF HE OR SHE QUESTIONS THE VALIDITY OF THE TEST TO HAVE A HEARING BEFORE THE JUDGE, TO IMPOSE THE WITNESSES THAT THEY WOULD HAVE TO MAKE IT AVAILABLE. WHAT I AM SAYING IS, THOSE CONFRONTATION CONCERNS OUR ADDRESS AND THAT RULE, AREN'T THEY? >> THE PRESUM SHUN THAT CRAWFORD USES THAT THESE WITNESS IS UNAVAILABLE. WHAT WE ARE SAYING HERE, IN THE CASE, THE WITNESS WOULD HAVE DONE THIS IS UNAVAILABLE. >> SO YOU WOULDN'T AGREE, THERE COULD BE SOME WAY AS LONG AS THE STATE PROVIDES AN OPPORTUNITY FOR THE CROSS-EXAMINATION IN THESE, IN THESE PROCEEDINGS, YOU WOULD STILL HAVE TO BRING THE WITNESS IN? >> STILL HAVE TO BRING HIM IN, YES? >> YOU ARE WELL INTO THE REBUTTAL? >> THANK YOU VERY MUCH. >> RIVERA? >> GOOD MORNING, MAY IT PLEASE THE COURT ON BEHALF OF THE STATE OF FLORIDA, THE STATE WAS FIRST ASKED THAT THE COURT TO LOOK AT THE PRESERVATION ISSUES HERE, TODAY MR. DAVIS IS MAKING QUITE AN ARGUMENT ABOUT WHETHER PROBATION HAS BEEN EQUIVALENT TO SENTENCING. THAT WAS NEVER RAISED. THE DEFENDANT NEVER CHALLENGED THE ADMISSION OF THIS. I WOULD FIRST ASK THE COURT TO LOOK AT THAT. >> THE FIRST QUESTION WHETHER THE 6th AMENDMENT APPLIES TO PROBATION PROCEEDINGS? >> ABSOLUTELY. >> THAT WOULD EXIST AS A QUESTION BEFORE CRAWFORD, CORRECT? >> ABSOLUTELY. >> ALL RIGHT. >> SO WE HAVE ANY CASES THAT TALK ABOUT WHETHER THE 6th AMENDMENT APPLIES IN PROBATION? >> STARTING WITH FEDERAL COURT, ABSOLUTELY. THIS COURT HAS ALSO -- HAS TREATED THIS AS A DUE PROCESS ISSUE. NOT A 6th AMENDMENT ISSUE. >> IN WHAT CASE HAVE WE DEALT WITH IT UNTHIS 14th AMENDMENT RATHER IN THIS THE 6th AMENDMENT. >> I AM DRAWING A TOTAL BLANK. >> IT USED TO BE IMPORTANT TO ME. >> WHAT I AM CONCERNED ABOUT, THERE COULD BE SOME ARGUMENTS THAT SENTENCING IN A CRIMINAL CASE IS SUBJECT THE 6th AMENDMENT, BUT I BELIEVE 1 OR 2 OF THE CASE, WE HAVE SAID THAT CRAWFORD WOULD APPLY TO SENTENCING WHICH IMPLIES IN THE 6th AMENDMENT APPLIES TO SENTENCING. I DON'T AGRI WITH THAT. I WOULD BE HAPPY TO CITE. THERE IS DIFFERENCE AS TO WHY WE TREAT THIS UNDER DUE PROCESS VERSUS CRIMINAL PROSECUTION. THERE ARE DIFFERENT BURDENS OF PROOF AT ISSUE. IT IS PRESURMED TO BE BE IN THE AS THE TIME WE GOES TO A PROSECUTION. THE BURDEN OF PROOF IS ON THE STATE TO COME FORWARD, TO PROVIDE EVIDENCE TO SUPPORT A FINDING OF GUILT. WHEN IT COMES TO DUE PROCESS, WHAT DOES DUE PROCESS TALK ABOUT? WE LOOK AT WHAT HE SAYS, HE IT IS ENTITLED TO AN OPPORTUNITY TO BE HEARD AP ONCE HE IS AT THAT. IT IS HIS OBLIGATION TO COME FORWARD AND SHOW THAT EITHER HE DID NOT VIOLATE THE CONDITIONS OR THAT HE IF CAN DID SO, THERE IS A REASON IN MITIGATION WHY HE SHOULD NOT HAVE PRIVILEGE REVOKED? THE LIBERTY INTERESTS ARE TOTALLY DIF RE. HERE, WE HAVE A LIMITED RIGHT OF LIP TY AND THAT LIMITED RIGHT IS PROPERLY KND UPON THE FACT THAT HE MUST MEET CERTAIN REQUIREMENTS THAT ARE IM PROPOSED FOR HIM TO REMAIN AT LIBERTY, SO IT IS A BURN OF PROOF DIFFERENCE. DUE PROCESS IS HISTORICALLY ALLOWED A MISSION OF BUSINESS RECORDS AS PROOF. HERE THERE IS NO QUESTION THIS WAS A BUSINESS RECORD. IT QUALIFY FORCE ADMISSION AN THE U.S. SUPREME COURT HAS SPECIFICALLY SAID THAT BUSINESS RECORDS ARE TEST RESULTS. THEY ARE THE SAME THING. THEY ARE ADMISSIBLE. THERE IS NO PROBLEMS. THERE IS NO CONFRONTATION ISSUE AT ALL. >> IF THESE TECHNIQUES WERE TO TESTIFY AT TRIAL. WOULD THEY BE CONSIDERED EXPERTS? >> I BELIEVE, THEY WOULD. I AM SURE THEY HAVE TO BE CERTIFIED TO RUN THE SPECIFIC CASE, THIS ISSUE. >> DOESN'T 8036 REQUIRE THAT IN ORDER TO ADMIT BUSINESS RECORDS BY EXPERTS THAT STATE AN OPINION OR DIEMOSIS, IT HAS TO COMPLY WITH 701 TO 705 AS WELL. YOU HAVE TO HAVE A CERTIFICATION THAT IN IN AIR ARDANCE WITH THE BUSINESS PRACTICE. >> THIS IS A DOCUMENT UNDER 9202 I BELIEVE IT IS. IT ALSO SAY, IT IS NOTED A MISSABLE. AN OPINION OR DIAGNOSIS IS NOT ADMISSIBLE UNLESS 701 TO 705 ARE ALSO COMPLIED WITH. >> THIS IS NOT -- ABOUT IT IS ALSO NOT INSTRUCTLY AN OPINION. THIS IS AS TEST RESULT, WE GET A YES. WE GET A MO. IT DUP MATTER WHO RUN THESE TEST. IT'S NOT A SUBJECTIVE ISSUE. THERE IS NO POSSIBILITY FOR BIAS OR PERSONAL OPINION IN HERE. IT IS A TEST RESULT, THAT IS WHAT IT IS. WHETHER I RUN IT OR YOU RUN IT OR SOMEONE ELSE RUNS IT. IT IS ALL THE SAME. IN THE CASE, THE APPELLANT NEVER CHALLENGED WHETHER OR NOT THERE WAS PROBLEM WITH HOW THIS TEST WAS RUN. EVEN IF YOU LOOK AT THIS AS A 6th AMENDMENT ANALYSIS. YOU HAVE TO MAKE THE ALLEGATIONS THAT YOU WERE DENIED THE RIGHT TO COMPEL THAT WITNESS. YOU CAN'T JUST SAY IT IS CONFRONTATION. WE LOOK AT OTHER CASES. >> THE SAME ANSWER OBTAIN IF WE WERE TALKING ABOUT DNA? >> I WOULD SAY THAT IT IS. THIS IS SOMETHING THAT NOW UNLESS YOU ARE CHALLENGING THE ACTUAL MANNER IN WHICH THE TEST IS RUN. I.E., A FLAW IN THE PROCEDURAL RUN OR SOME OTHER TYPE OF FLAW IS PRETTY MUCH ACCEPTED AS WHAT IT IS. >> I AM CONCERNED ABOUT YOUR ANSWER THAT THIS IS NOT. THAT IS WHOEVER DID THE ANALYSIS ENDS UP' RENDERING AN OPINION BASE ON THE TEST THAT THEY HAVE RUN AND THIS SUBSTANCE IS SUCH AND SUCH JUST AS THE DNA ANALYSIS? >> URINE ANALYSIS IS DIFFERENT FROM DNA FOR A COUPLE OF DIFFERENT REASONS. YOU ARE NOT DOING A PROBABILITY CALCULATION. YOU GET A YES OR NO ANSWER. YOU ARE NOT APPLYING STATISTICAL ANALYSIS. BUT I WOULD SUBMIT EVEN WITH DNA RESULTS, THE SCIENCE HAS GOTTEN TO THE POINT TODAY WHERE THE TEST IS RUN ACCORDING TO SPECIFIC PROCEDURE REGARDLESS OF WHICH LABORATORY DOES IT, THE PROCEDURE IS GOING TO BE THE SAME, ASSUMING THE SAME, AND THAT POINT, YOU PLUG IT INTO THE DATABASE, THEN, YOU GET A RESULT. IT IS MOT SOMETHING WHERE THERE IS A POSSIBILITY OPINION. AND THIS IS RECORD ALSO HELD TO FALL WITHIN THE PREVIEW OF MEDICAL DIAGNOSIS AND IF IT APPLIES TO MEDICAL DYING DIAGNOSES SIS, ARGUABLE, THERE WOULD BE A OPINION, DOCTORS WOULD HAVE A DIFFERENCE OF OPINION AND CERTAINLY IT WOULD QUALIFY HERE. THE STATE'S POSITION IS REALLY SIMPLE. IS IT A DUE PROCESS ANALYSIS? IT IS NOT A 6th AMENDMENT CASE. DUE PROCESS ALLOWS FOR ADMISSION OF THE DOCUMENT AS A BUSINESS RECORD. MR. DAVIS HAS ADMITTED TOO, THERE WAS NO OBJECTION TO THAT AS A BUSINESS RECORD. THE STATE WOULD SUBMIT THE F WAS CORRECTED AN USUALED THIS TO AFFIRM. THANK YOU. >> THANK YOU VERY MUCH. >> MR. DAVIS? >> WELL, IT IS NOT DUE PROCESS, IF YOU DON'T HAVE 6th AMENDMENT, WE LOOK AT DUE PROCESS. THIS IS FUNDAMENTALLY A 6th AMENDMENT CASE BECAUSE IT CRIMINAL PROSECUTION. WE DON'T SAY BECAUSE IT IS PROBATION, WE'LL DUE PROCESS, NO THIS IS 6th AMENDMENT. THIS IS A CRIMINAL. >> WELL, IF YOU LOOK AT THE 6th AMENDMENT. IN ALL CRIMINAL PROSECUTION, THE ACCUSED SHALL ENJOY THE RIGHT TO SPEEDY TRIAL BY AN IMPARTIAL JURY MOVEMENT RIGHT. >> IS IT YOUR ARGUMENT THAT -- SO TO MAKE IT CONSISTENT. WOULD YOU HAVE TO ARGUE A RIGHT TO A TRIAL BY YOU ARE JUR ZY WELL, I SUPPOSE, YOU MAYBE YOU MIGHT HAVE TO. I WILL NOT MAKE THAT ARGUMENT TODAY. WE ARE FOCUSING SOLELY ON CRIMINAL PROSECUTION AS APPLIED TO CONFRONTATION. >> IT WOULD APPEAR, WE ARE HAVING VOB SOME PROBLEMS THIS MORNING. MAYBE WE HAVE NOT PREEFED ALL OF THE SPECIFIC QUESTIONS THAT THE COURT HAS. WHAT I WOULD IS CERTAINLY PROVIDE YOU THE OPPORTUNITY, TEN DAY, TO PROVIDE A MEMORANDUM OR BRIEF STYLE TOLL THE COURT WITH REGARD TO THE APPLICABILITY OF THE 6th AMENDMENT OF THIS PROCEEDINGS, IF YOU NOT HAD AN OPPORTUNITY TO CLEARLY LOOK AT THAT, GIVE THE STATE TEN DAYS TO REPLY AND YOU ANOTHER 5 FOR A RESPONSE. >> WELL, YOUR HONOR, I THINK MY BRIEF DOES. >> THAT IS WHAT IT CLEARLY SAYS. >> YOU THINK YOU HAVE COVERED. >> YES, THAT IS FINE. >> THAT IS FINE. >> THIS IS A CRIMINAL PROSECUTION. PROBATION IS A DEFERRED SENTENCING. >> OKAY. >> THAT IS WHAT WE INTENDED. THE DUE PROCESS -- I MEAN THE CROSS-EXAMINATION IS PROCEED ALLIZED, THESE REPORTS MAY BE PERFECTLY OKAY, BUT THE DEFENDANT IS GIVEN THE OPPORTUNITY TO TEST THAT AND WITHOUT THE RIGHT TO CROSS-EXAMINE, IT IS A PIECE OF PAPER. HE HAS SOMETHING TO SAY. THANK YOU VERY. >> THANK YOU. THANK YOU VERY MUCH, COUNSEL, WE'LL TALK THE CASE UNDER ADVISEMENT.