or the court used three and two to reverse the conviction and and the main one is the silence post arrest prima random about four years ago this court determined that an officer police officer cannot even testify as to the silence or lack of physical and emotional reaction of  arrest and indeed a majority of the circuits have held that post arrest prima random violence cannot be used in the case in chief but this is collateral review on hay vs and consequently the fact that the california court found the defendant's silence in the circumstances of this case could be used is to be reviewed by this court to see if it is contrary to or an unreasonable application of federal law as determined by the united states supreme court within the meaning of twenty to fifty four days and help be analytic that this one is a little tricky because it's an unreasonable application in that california court of appeal applying general principles of constitutional law where there is no united states supreme court authority in other words valentine cannot point to a case and he cannot even point to a clear federally stablished principle that is involved here because this case lies somewhere between the fifth amendment right to silence and miranda griffin and doyle and there's no question the state was wrong deeper does not require a state to follow the rulings of the circuit or even the majority of the circuits it's there as federal law as determined by the united states supreme court and  misapplied in other words we are asking this court to rule that no federal court on hey b s review should grant relief and overrule the state's holding if any reasonable all relevant evidence is admissible absent absent statutory or constitutional prohibition second silence is ambiguous there is no clear supreme court ruling on it and both sides have valid argument so our position is that when both sides have valid arguments until the supreme court decides the issue the states are free to make any reasonable decision within within the general principles of that is correct your honor but there is no clear principle in this case and that some of the circuits that have decided this issue have used miranda some have used growth and some of used oil and there is not a clear answer to this question furthermore there are there are enough states and circuits that have decided in conformity with the california ruling that we cannot find that it's objective leon reasonable perhaps congress wanted supreme court authority so that one circuit would not be ruling that the decisions of another circuit are unreasonable or to limit that to limit situation this this this case has other reasonable courts that have agreed with the california supreme court in that the fourth eighth and and eleven circuit and the states of michigan have also come to the same conclusion i wanted to touch briefly on the other two issues raised and that is the district court found the that cross examination had been limited as to detective dawson and that business records exception did not cross examination of the d cross examination was insignificant for two reasons first of all the jury knew that the detective had gone to the jail with a tape recorder and had tape recorded the conversation what the defendant wanted to do however is his ask this is get before the jury that he asked questions you know order to indicate that he had not meticulously followed the  out to be cross examined on what was said that wasn't on the tape that's correct your honor there were two aspects of it one was what was said that was on the tape were there questions asked that would make the detective look include incredible as to his statement that there were no questions asked when this confession was made spontaneously the tape was not played and then the second one was the five minute gap jury knew that that the officer went in that they also taped but also that another detective heard the confession so that so that the cross examination of this person as to what questions he asked concede that it wasn't hearsay because that's not what was being offered it wasn't being offered for that purpose your honor but her hearsay objection is interesting because she felt that what the defense was really trying to do was to get the denial been tape recorded and furthermore you're on it the questions asked seem far attenuated both from confrontation and credibility what he asked was do you remember not did you kill the person or not did you do such and such or did you fail to do such and such but do you remember and it's it's our contention that it's just that it's just as reasonable the type of was so blown up by the conduct and the spontaneous evidence and it's rather than the denial of cross examination the d n a case frankly i think the district court was flat wrong on this one because it's routine that d n a evidence and blood evidence comes in through an expert who uses business records furthermore it's not a constitutional issue the only supreme court case i did is palmer versus hoffman and that in turn discuss an ohio case both of those cases are decided on statutory grounds as rules the federal rules of evidence regarding fab the federal statutes in other words us supreme court is not going to decide for all states for all reasons what constitutes a business record they did not find the business records were constitutionally mandated they were it was interpretations of statutes finally out i'd like to say that on the cumulative area shoot that is a little difficult because there's not a single error of a quality to be reversible by definition so the question is do we have to knock out one or two of the three reasons to to get this court to reverse i believe that even combined these are harmless there is because the defendant had motive opportunity and three hours of furtive behavior at the house when police arrived before his arrest and there are six reasons why i did not affect the jury the confessed one the confession was heard by two detectives and incidentally by the overlays that indicated that the wound on the mother's cheek was made by a specific brand of fourteen inch range the blood evidence was very strong third the jury argued before we feel that that was a reasonable doubt decision based on the fact that the fourth eight eleven and michigan have reached the same result and fourth this would be admissible evidence under so we have so we would argue that it was cured by the defendants testifying once the defendant testifies there are cases that say that the prosecutor can ask questions about his post arrest silence cre that would have left the confession in the blood evidence totally unchallenged so then if the time the confrontation issue can be seen as an evidence issue and a second detective heard the confession and finally business reference is not constitutionally mandated so on that basis we would contend that even if all three of these errors are upheld that it should still not be reversed for judge judge jones carefully considered a very large record and a complicated case with both judges a very fine judge of the problem though is ed and what do we do with the fact  that this is an unusual twist we don't see very many claims that i don't need to speak for my more experienced colleagues but in my time on the bench i think this may be the first case i've seen where there's a challenge to the refusal by by the state court to extend a principle into an area where the supreme court has yet to opine but the circuit court seems to be sort of mounting up on both sides on these i touched on one let me address that in this way first of all although we argued in response that this the claim that an extension of supreme court law to a new aerial is not improper which they seem to suggest even though the language of williams that you cited just judge nelson says exactly that that the refusal to extend your principle to an area where it should be a violation hearsay that what i heard her say was because it's an extension and there has to be some great deference paid to the state's refusal to boldly go where the supreme court has yet to go th is my point the supreme court has gone there they've done their best forty years ago we got miranda and we got a grip and we've got doyle and you certainly can't be arguing that there's a case right on point that the right i'm sorry go ahead from miranda and we cited it several times in the brief and that is a very clear and to my mind's eye explicit and i don't think it you may be reading more into miranda than i am maybe i'm misreading rand wh we cited on pages thirty four and thirty five of our brief this is the language in accordance with our decision today it is impossible to penalize an individual for exercising his fifth amendment privilege when he is under police cars study interrogation the prosecution may not therefore use at trial the fact that he stood mute or claimed his privilege in the face of you say can be used against you the state given there and expressed promise and isn't that what the supreme court talk you know that is the issue in dorrell and actually let me take a step back and make a distinction between two uses of science one of which is clearly permissible and the other of which the vast majority of cases and clearly the reasonably decided cases the night circuit rule you know the ninth circuit posed a rast response or lack there of to the events surrounding the arrest which may not even involve interrogation and me simply as in this case be you are under arrest for murder and the jury is asked to draw some kind of an inference from the fact that the defendant did or said something or nothing in response to that let me draw this distinction we have three periods of handcuffed put in the police car had been there for five or ten minutes before donaldson is marvin sense that you litigated that on three five hearing or whatever you call fifty thirty eight point five uranium yes and i'm just representing what the facts are in other words he was in custody but had not been given miranda fletcher versus we are sense when caldwell says in such a case if a defendant goes to trial and testifies and says something bag i didn't know what it was then the state is permitted to say just one second before you were given your right you didn't proffer this explanation which should have been property in light of your trial testimony and worth or under any other supreme court case committed as a substantive proof of guilt but it's not prohibited that's the problem that we have here is that the supreme court has yet to extend those principles to use during the cases well let me bring it this way and miranda i believe and in question the general rule is silence in the face of an accusation may not be used and fletcher versus we're represents the supreme court's footnote and limitation or modification of that rule so that  not be used we believe that language in miranda is very clear and glisten is very clear silence in the face of official accusation may not be used it is li doyle especially in the culture in which everybody or most everybody who watches t v knows you have a right to remain silent a policeman arrests you and accuses you and you are silent now does that mean i'm because i'm guilty and i'm not going to tell you anything i'm silent because a reasonable person would answer but i'm not going to or does that mean the person is watched law and order and c s i one two one three because all i as the the sense that the fact that the defendants said nothing that we cannot be used against them that's the principle that happens to be invited in this specific law already but that the constitutional amendment stands to protect us and we have cited the who are case from the district of columbia the site of many many years ago the seventh circuit case of savory and they all say that the state's argument that we can use silence not to impeach him and not what other states or other federal circuit courts of appeal say well i think they are saying what the supreme court said itself that we've just discussed which is the principal must be fairly derived from existing supreme court precedent and i think it is fair to say that federal super supreme court jurisprudence from the last fifty years and certainly after for impeachment only exactly in the light exactly and the jury is instructed you may consider his silence for the purpose of determining the truthfulness or lack of it of the testimony he gave whereas in this case they went even beyond that in other words the state's argument is well he took the stand it could have come up then anyway not true because he gave an adult with admission instruction which said in essence you may consider the this case is wrong normally it public it refers to a much broader area of evidence where somebody is walking on the street they say did you do that if you do this in the person this time it was well i don't want to i don't want you to call your time on the fifth amendment issue i could you examination record can ever be inadmissible business for purposes of criminal trials without the testimony of the actual technician who conducted the report just tell me he court below said that when you are dealing with the d n a evidence of a highly complex nature in which the reliability of the test is critically tied to what steps are done in the testing process narcotics laboratory technician conducting a gas chromatograph evaluation of suspected narcotics involving multiple staffs with fairly sophisticated equipment which really mean d n a evaluation involve a few more steps but it's it's you know pretty complicated stuff the answer to your question is generally the chemistry does the test is required to testify in federal courts but method of laboratory reports question the reliability of the results reflected in the tests no thanks comment when we need to know whether in step number three whether the technician did this or that which could have resulted in the several bands and person that they called said i have no idea i didn't watch it i didn't even do the immediate supervision that was done by second person and the third level and i am testifying to you about the test that was done by my company which is a for profit company and i'm tell i'm reading from the results that this third person got the best you can do is do it with from her an admission on cross examination that if it isn't done right then you outer bands can have can be an indication that the testing was contaminated absolutely followed by her statement but i'm sure they did it right i'm sure she did it by because we're very good at what we do with the fact that i said you had the test results in advance of the trial you could have subpoenaed the the lab technician to put him on as an adverse witness and ask her the question you say you were precluded from asking because of the manner in which is evidence there is no requirement constitutional or anyplace else for the defendant to the magistrate and the district articulated this is a declaration that the test results themselves are not properly and under recognized exception to the hearsay rule that's exactly right and under supreme court law ohio versus roberts which says that for evidence to be admissible against a sixth amendment objection there has to be a showing of two things one on reliability and two an availability i'm sorry an availability in the department available and cross examined by you on all these because the results of the test would were determined the initial report was written and the test itself was conducted by a person and it is that person's credibility actions and conclusions which are being edited into this trial and it's that person's credibility which cannot be confronted goes to the weight to be given because as long as the item of evidence can be interviews and a proper foundation laid for it under the existing exception to the hearsay rule it comes in that it not should the other side choose to call them otherwise for instance in a murder case they can say i got the pathologist report and who am i i'm just a custodian of records i'm going to read you this report well in this where you say the cause of death is position is right then they can evade cross examination of any expert finding my saying it's a business record of a look at the record the basis of the cross examination and the use was  to my recollection but the problem is in the reason why it was so important that one of the results not of miss peer who was the one from san diego who did the test for the police department but of the lab  cellmark lab showed that there was a slight admixture of what was probably the mother's blood with the father's blood and alex's d n a that that was the critical piece of evidence and that  while complaining that it's not his d n a he's saying it is but here is how it happened to be there isn't that the way the trial played that yes judge parrish but the reason why there is prejudice is the way the appeal really out and when you came into court you convince somebody that the problem was supervised no the problem is that that is the way it played out but it relied upon an attack and the prosecution's theory that he had murdered both the mother and father and that's why the admixture of the mother and father was found on exactly right and that's why it was so critical that we determine was this result and you'll see this is the whole of the record and i'm going to try to answer according to my recollection i think i called her and she said to me you have the report from some marks are you just redirect or no which i mean i she was both professional i don't mean to suggest that she was improper in her behavior toward me and she had a right not to be interviewed but that's that's what it was and to tell you the truth i think that the person that i talked to was the technician and for whatever just a little bit with this i think this same lab changed its name slightly and recently according to an article that i submitted to the court now the record is closed and i submit it for what it's worth and if you tell me it's dog or the record shut up i will do that but this same lab just caught a lab technician who had gone lead up dummied up the results and nine cases you are for the spirit court of los angeles that they had to throw out the convictions and my point in that regard is this where it is the work and the credibility of the person who does the test which is really what is being introduced into evidence the sixth amendment to start the law at the time ohio versus right it's and not critical evidence they have to without calling the person who the credibility and statements that issue that we are basically telling every state and federal criminal court in the jurisdiction of the night and not rely on laboratory test results in any criminal case without the technician who actually perform the task appearing as a witness at trial judge coleman let me just say that i do not ask for so grand a principle i don't see how i write this position without that principle carrying the day because it has to be a constitutional prints let me write it for you it says that in a critical case where scientific evidence and the testing technique of the scientific evidence is critical to the reliability of the evidence and that evidence itself is critical to the result then a report of a second or third person or the testimony of a fourth person about the actions and the results determined by a technician well true or not but most nor participated in at all here the rule you just articulated and conclude that in every case you have to call the person who conducted that not only that they have to take another step you can know in advance what the report will fray and you can have all the questions you want about the report and you are not obligated and of course you're not because the state must prove its case beyond a reasonable doubt so you are not obligated to rebut it but if you elect not to re because i don't mean to sound outrageous in saying this but under the discovery rules of nearly every state in the federal government you're entitled to all of that your title to report an adventure in title to do all these things and i'm suggesting you've got it and you know you're going to question it yes sir well what happened in this trial is we didn't have that advance notice you're suggesting we were told that one of the you got the test was coming and then at the last minute we decide in all probability for sure let me just say this first of all there's no obligation or not i don't mean to be hyper technical point but why do i have to call the you know what you don't you don't and you didn't she that this evidence stood there that he was going to have to meet of course so he he wasn't surprised by it when he got on the stand to testify in his defense he knew that established through the testimony of these witnesses the suggestion that there was an admixture there which was consistent with the prosecution's theory that when he drove home after the murders he was covered in the blood of both  that he had it's in some way and that's how it ended up on the steering wheel and so on and that's exactly right judge tolman and i argued and i debated and i suggested that it was an invalid result because it was a so called think really can see do you on the cross examination i have no idea what's fair and what you wanted to do and why you couldn't do it with the witnesses they call and when it is that when it is not the credibility of their expert but the issue much once the subject matter has been determined to be appropriate under fire in the federal court under guard then there need not be any other fight here and it's just that the particular results of being proffered the person who got the results who did the test and but by the way i think the focus of the question seemed to be that this is just a bizarre thing that i'm i'm suggesting in fact  how did the father's blood get in the drain of the defendant's shower on his clothing and on the steering wheel of his truck that was the issue at trial not whose blood was furthermore the expert testified in this case that if proper protocol and cleanliness is not used you may get no d n a result but you do not get the wrong d this little lab is for profit as the defense of said but i'm not sure it knows who's who in there in this situation when they have three samples to run and the lab exonerates as as well incriminates so i would argue that this was not for that the blood was run not for litigation so much as for investigation the spot far as that's trying to figure out how the lab is concerned to figure out how we could write the opinion in the way that mr ayers errol wants and the analogy that came to my mind was what do we do with a for profit hospital that routinely analyzes blood and other bodily fluids for all sorts of things they charge the patients for it and there may come a time in a criminal case when what that blood contains would be the subject of evidence a prosecutor would introduce in the case in chief with the defendant drunk with the under the influence of narcotics at the time and if the defendant had been admitted to the hospital on the night of the crime that may become an issue does that mean that we can't trust a for profit hospital laboratory result and the business the business records can be used and i and we can speculate as to why the d a did not call the actual lab  well it didn't take a rocket scientist to see that that was going to be the defense because as you as you remember from the facts of the case the mother and father were killed sometime after four thirty pm and before midnight on the second of august the body was found nine am on the third and the taps were at the at the family home at two am with the arrest happening at three am the defendant chit chatted a lot with the transporting officer and during the course of events kept saying he didn't know what was going on gument is that miranda talks about not using the silence of the person justice scalia tells us that this is victim miranda but more important this is referring to silence after and in vocation griffen tells us that the prosecutor cannot test cannot comment on the defendant's failure to testify in court and it can be used for impeachment if he does take the  there is no question in this case that it was staged a decision contrary to the ninth circuit's view of this issue and to the majority view of this issue law become binding on the states well according to a deed whenever only when it's unreasonable the district court said well it's a tall one so it must be unreasonable first of all to quibble about a little little thing it's seven to one because the seventh assumed without deciding that that silence couldn't be used but even if we say it's eight to one i don't think this court or anyone else can assume that one circuit of the united states court of appeals is unreasonable you may you may conclude that they're wrong but you're not suggesting  that because of the fact that reasonable judges might differ over an issue that we still couldn't declare that a principle was so clearly established that it should have been extended to the situation i'm not your honor in that and that was my point when i said there's no there's no case supreme court case on the issue and there's no clearly established principle on the issue the answer lies somewhere between the fifth amendment and these three cases and it's not so clear that we can say that the california decision was unreasonable ok i think we unless you have something else i think we have i think we have it your honor the circuit courts may show a direction or a trend but they're not binding and our position remains that unless and until the supreme court decides this issue the states are free to make any reasonable conclusion that they that they feel is is appropriate to the circumstances of the case thank you for taking both the arguments with very helpful the case just argued is submitted and puzzle our way through it as quickly as we can let me just inquire with regard to the first case calendar that we skipped over this morning is there anyone here on alverez versus f d relief from deportation in this case the first is that the government failed to prove quite clear convincing and unequivocal evidence that mr alvarez was convicted of a firearms  the second was that mr alvarez did not receive the effective assistance of counsel and was therefore deprived of