“The age-old tool for ferreting out truth in the trial process is the right to cross-examination. For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.” United States v. DiLapi, 651 F.2d 140, 149-151 (2d Cir. 1981)
“Cross-examination is the principle means by which the believability of a witness and the truth of his or her testimony are tested.” Davis v. Alaska, 415 U.S. 308, 316 (1974).
How do we really know something is true? This question dates back to Plato, and even though we haven’t made much progress philosophically, our legal system provides various rules designed to ferret out the truth. At its core, evidence against a citizen is tested by cross-examination. If you limit cross-examination, you have effectively slowed down “the greatest legal engine ever invented for the discovery of truth”. The recent decision in Marquis Bell v. State has dumbed down the violation of probation process, devolving judges into rubber stamps for law enforcement. 2015 Fla. App. LEXIS 14993 (Fla. 5th DCA October 9, 2015). To understand what went wrong in Bell, let’s get back to the basics.
How can you test if a person is being truthful? Cross-examination. How can you test a document for truthfulness and accuracy? Cross-examination. If a lab report accuses a probationer of testing ‘positive for the presence of Marijuana’—how do you know the document is accurate? Well, you can test the lab report’s accuracy by cross-examining the lab technician. For two hundred years, when a document accuses somebody of wrongdoing, the state must provide a live witness who can verify the truth of what is contained within that document. Legislatures have attempted to get around this live testimony requirement in various ways. Yes, this issue is closely related to your Sixth Amendment right to confront an accuser, but the Sixth Amendment doesn’t apply to VOP hearings. (Nonetheless, you may want to check out my articles Lab Reports Suck, and Surrogate Testimony). Putting aside for the moment any issues regarding confrontation, truth seeking is still troublesome in violation of probation hearings because a certain amount of hearsay is tolerated. This tolerated hearsay, however, is constrained by the rule that this “hearsay must be corroborated by non-hearsay.” J.F. v. State, 889 So. 2d 130, 131-32 (Fla. 4th DCA 2004).
Typically, our court system does not permit testimony regarding what someone else said, as this hearsay evidence is deemed weak because it cannot be cross-examined. For example, if I want to show that Steve tested positive for cannabis, I cannot testify that “Frank told me that Steve tested positive for cannabis”. In the same fashion, I cannot testify that “I read a lab report that indicated cannabis was in Steve’s urine”. That too is hearsay. And, if the lab report is subsumed into the urine test itself, I cannot testify that “I read the test strip which I dipped in Steve’s urine, and the test strip indicated the color blue, and I read on the test kit that this color indicates Steve’s urine contained cannabis”. Again, all of this used to be hearsay, and still is in most of Florida. Unfortunately, the Fifth District Court of Appeals has decided to stand in direct conflict with every other district court in Florida by permitting this sort of testimony. See Carter v. State, 82 So. 3d 995 (Fla. 1st DCA 2011), or Queior v. State, 157 So. 3d 370 (Fla. 2nd DCA 2015), or Weaver v. State, 543 So. 2d 443 (Fla. 3d DCA 1989). Continue Reading