“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).
So, why is the Bell decision so bad? Bell permits probation officer testimony that cannot be subject to any sort of meaningful cross-examination. It does this by permitting a VOP conviction for dirty urine–with the only evidence being two hearsay statements previously not admissible. First, Bell accepts a probation officer’s reading of an on-site test kit result. In other words, the only way a probation officer knows that a probationer’s urine tested positive for marijuana is because the probation officer read that the urine dip stick’s ‘blue line’ indicates the presence of weed in the urine. This testimony was hearsay, up until a few days ago. Actually, it still is hearsay in most of Florida. By permitting the probation officer’s testimony regarding his reading of the on-site test kit results, the 5th DCA is pretending that the officer’s interpretation of the test results constitutes actual evidence–as opposed to hearsay. This err is compounded further by the admission of subsequent, confirming, laboratory test results. This is legal bootstrapping magic act, the likes of which would fool Penn & Teller. Well, this may be an insult to magicians, as they pride themselves on their honesty–you know in advance you’re about to be tricked. Not so in the court system. A bit of legal slight of hand, and the once banned testimony of a probation officer is now perfectly acceptable.
To understand the problem, let’s use a real life example. Say I’m defending a kid who violated his probation with dirty urine. The process begins when the probation officer dips a test stick in urine. The probation officer waits for a result, and sure enough, a blue line appears. Do you know what a blue line means, versus a pink line? I don’t, and neither does probation, but for the fact that the probation officer has read the instructions which accompany the on-site test kit and that document tells the probation officer that a blue line means my client had weed in his urine. The probation officer will then tell the court what he read from the test-kit pamphlet regarding the blue line (it would be a different story if the probation officer knew, chemically, what the blue line indicated, but trust me, there are no chemists/probation officers–I’m just saying). Next, the probation officer sends the urine off to the lab, and some lab in Virginia (typically) confirms the initial findings of the on-site urine kit. They use a totally different scientific method for arriving at their result, but usually, their result matches the probation officer’s crude onsite dip stick test.
Now, here comes the fun part. At the violation hearing—according to Bell—the probation officer need only testify that he has used this test kit thousands of times, and that the lab results have confirmed the test kit thousands of times. The probation officer doesn’t need to know anything about the test. And so, without such knowledge, there’s no meaningful cross-examine of the probation officer. The probation officer doesn’t know why, or how, the test kit came up with the results it did. The court doesn’t care, seriously, as you can see from the following quote: “So, the question, then, is what level of training or experience is necessary before a person can reliably interpret these preliminary drug tests. As already discussed, the relevant literature confirms the answer to be “very little.” This is because these tests are designed to be simple to use and understand, with minimal training. So, assuming that the result of one of these presumptive tests would be relevant and otherwise admissible under the rules of evidence, we believe that any person with the minimal training, experience, or both, needed to understand these tests and how to read and explain their results would qualify to testify to the results under section 90.702, Florida Statutes.” Id. at 2o. Yikes. The tests are designed to be simple, so we only need simple testimony, and most probation officers can provide that in spades. The Bell court’s circular logic is the likes of which I haven’t heard since Bible school, when I was told that the Bible is the word of God because the Bible says so, right there in the Bible. (Yes, I have come to believe this to be true, but for reasons apart from the fact that the Book claims to be self-authenticating).
The 5th DCA in Bell makes an error I’d expect from an undergrad simply because they skipped Philosophy 101. The court confuses correlation for causation. The probation officer is clueless as to causation, and can only testify as to the correlation between administering a urine test he knows nothing about, and reading confirming lab results he (still) knows nothing about. Witness testimony must address causation, not just correlation, if a defendant is ever to be afforded due process. The fact that a probation officer repeats a urine test a thousand times gave the Bell court the impression that the officer understands how the test works and why it is accurate. My 75 year old mom loves her iPad and iPhone, but she can’t testify as to how and why it works. My Mom can’t be called as a witness in Samsung’s law suit against Apple just because my mom has used these devices thousands of times and correlations have developed based on repeated actions.
Correlation is everywhere, but only those with knowledge can testify as to causation. One famous correlation involves the fact that highway deaths in the United States have declined in exact proportion to the tons of lemons imported from Mexico. Every time we import more lemons, our highway deaths go down in direct proportion. Correlation, yes. But is this correlation accurate and useful? No, because it says nothing of causation. The logic from the Bell opinion would have us believing that there is some sort of causation between lemons from Mexico, and highway safety.
In the same way, every time a probation officer sends off a urine kit to be tested by the lab, the lab confirms the test kit. Ok, but so what? Is there anyone in court who can testify as to what this means? Sure, you’ve got a correlation between two drug test results, but there’s still no witness testifying as to the accuracy of either test. Actually, there’s no witness testifying as to what either test really is. Now, if a witness can explain what causes these lab results–you’ve got relevant testimony that is no longer hearsay. The Second District Court of Appeals has already called out the 5th DCA’s flawed logic in a previous case, finding that the Fifth DCA “incorrectly equates the probation officer’s expertise in performing a field test with scientific testimony about how the test works to establish the test’s reliability”. Queior, at 375, discussing Terry v. State, 777 So. 2d 1093 (Fla. 5th DCA 2001).
Yes, there’s more to this story, but I’m done writing for today.
[PIC: from Cedar Key, earlier this year]