MAY IT PLEASE THE COURT. MY NAME IS JAMIE SPIVEY. I AM A LAWYER WITH THE PUBLIC DEFENDERS OFFICE AND I AM HERE TO DAY , IT IS MY PRIVILEGE TO REPRESENT THE RESPONDENT, MR . MORON I LOPEZIN THIS CASE.

CHIEF JUSTICE: I KNOW WE HAVE LIMITED TIME BUT YOU CAN SLOWDOWN IN YOUR PRESENTATION .

JUSTICE: IS N'T THE REAL PROBLEM HERE , THE FLY IN THE PROVERBIAL O INTMENT , THE Q UESTION OF WHETHER OR NOT THIS WAS AN EXCITED UTTERANCE , BECAUSE THIS COURT HAS DEFINED AN EXCITE ED UTTERANCE , IF THE STATEMENTWAS MADE BEFO RE THERE WAS TIME FOR REFLECTION. NOW, IF THE STATEMENT IS MADE BEFORE THERE IS TIME FOR REFL ECTION , THEN ITSEEMS TO ME THAT IT IS CIRCULAR TO SAY THAT IT IS IN CONTEMPLATION OF THE FACT THAT IT IS A GOING TO B E USED IN A JUD ICIAL PROCEEDING, SO IT SEEMS TO ME WE HAVE CONTRADICTORY DEFINITIONS.

WELL , IT SEEMS THAT THE RELIABILITY QUESTION IS THAT JUS TICE ANS TEAD BROUGHT UP IS THE KEY HERE. O NCE YOU START ANALYZINGWHETHER OR NOT IT IS EXCITED UTTERANCE , YOU GET INTO THAT PROBLEM OF RELIABILITY. THE SUPREME COURT IN CRAWFORD V WASHINGTON SAID THAT IS NO LONGER A V ALID TEST. THAT WILL NOT PROTECT THE CONFRONTATION RI GHTS ANY LONGER, SO TA LKING ABOUT WHETHER IT IS EXCITED UTTERANCE OR NOT -- JUST JUST BUT THE SUPREME COURT COURT HAS NOT AT LEAST AS WE SIT HERE ON MAY 4, SAID THAT AN EXCITED UTTERANCE , ADMISSION OF AN EXCITED UTTERANCE IS IN VIOLATION OF THE CONFRONTATION CLAUSE.

I AM JUST SAY ING, YOUR HONOR , ANAL YSIS OF EXCITED UTTERANCE DEPEN DS UPON RELIABILITY . THE STATE I S SAYING THIS IS A REL IABLE STATEMENT , EXCITED UTTERANCE , AND THESUPREME COURT SAID THE RELIABILITY TEST IS JUST NOTSUFFICIENT TO PROTECT CONFRONTATION RIGHTS , WHERE TESTIMONIAL EVIDENCE IS INVOLVED, AND HERE WE HAVE ABSOLUTE TESTIMONIAL EVIDENCE .

CHIEF JUSTICE: FOLLOWINGYOU UP ON JUSTICE WELLS , EXCITED UTTERANCE MADE BEFORE THE TIME FOR REFLECTION, AND THIS IS REALLY WHAT MS. WILCOX WAS S AYING IS BY THAT NATURE,THERE IS NO TIME FOR REFLECTION, THEN WOULD A REASONABLE DECLARANT SIMILARLY , SITUATED IN THE SAME SITUATION , HAVE THE CAPACITY TO APPRECIATE THE L EGAL RAMIFICATIONS OF THE STATEMENT? ARE THE TWO MUTUALLY EXCLUSIVE , OR DO YOU SEETHAT THE INQUIRY IS DIFFERENT?

I SEE IT THAT EVERY TIME SOMEBODY MAKES AN ALLEGATION LIKE THAT, THEY HAVE GO T TO KNOW THAT IT IS GOING TO BE USED. IT MAY BE PROVED THAT THEY ARE EXCITED , BUT THE FACT THAT THEY ARE EXCITED DOESN'T MEAN THAT THEY AREN'T, ALSO , REASONABLY ON NOTICE, REASONABLY CONSCIOUS AND REASONABLY UNDERSTAND THAT MR . LOPEZ, THAT MANRIGHT THERE POI NTED A GUN AT ME. YOU HAVE GOT TO KNOW THAT.

JUSTICE: ISN 'T THERE REA LLY A DIFFERENCE BETWEEN HE HAS GOT A GUN AND MR . LOPEZ KIDNAPPED ME AND HE HAS GOT A GUN AND A FULL DESCRIPTION , AND THE SAME TIME PERIOD? SO YOU SEEM TO BE URGING THAT AN EXCITED UTTERANCE I S ALWAYS TESTIMONIAL , IF IT JUST RELY ACE SOME FACTS, SO IT SEEMS TO ME - - IF IT JUST RELAYS SOME FACTS, SO ITSEEMS TO ME THAT THE RULE EITHER WAY MAY NOT BE THEREAL ANSWER HERE.

I THINK EXCITED UTTERANCE , THE DEFINITION GIVEN TO EXCITED UTTERANCE IS WAY TOOMUCH IN ALL OF THESE CASES. I DON'T THINK IT IS SO IMPORTANT THAT THE PERSON , W HAT THE PERSON 'S INTENT WAS. THEY MAY HAVE , THEIR INTENT MAY HAVE BE EN TO GET HELP, B UT THAT DOE SN'T BE LIE THEFACT THAT THEY ARE REASONABLY CONSCIOUS OF WHAT IS GOING TO HAPPEN WHEN THEY USE THOSE WO RDS. A GAIN, WHEN YOU GET FO CUSED ON EXCITED UTTERANCE ANALYSIS, A GAIN, YOU YOU ARE INVOLVED IN A RELIABILITY TEST AND YOU ARE SAYING,WELL, BECAUSE IT IS RELIABLE , IT MUST NOT BE TESTIMONIAL. BUT THE RELIAB ILITY IS NOT GOOD ANY MORE .

CHIEF JUSTICE: WHAT JUSTICE CANTERO POIN TED TO , WHICH IS THAT REALLY AND I HAVE SEEN THIS FOR THE LAST 12 YEARS, THAT THERE IS SOMUCH OF A TENDENCY ON THEPART OF THE ST ATE TO USE EXCITED UTTERANCE WHEN THEYARE REALLY NOT. SOMEONE CO MES TO THE DOOR AND THEY , IT IS 20 MINUTESAFTER AND THERE AREQUESTIONS AND ANSWERS AND --

ALWAYS GETS IN.

CHIEF JUSTICE: IT IS EXCITED UTTERANCE AND IT REALLY, PROB ABLY, THAT IS A VERY NA RROW EXCE PTION WHEN SOMEBODY IS , YOU SEE SOMEONE DRIVING BY IN A C AR AND YOU SAY THEY ARE SPEE DING , AND THAT WAS THE KIND OF EXCITED UTTERANCE, NOT THE WHOLE STORY OF HOW THE CRIME OCCURRED.

RI GHT.

JUSTICE: AND IN MOST CASES , EXCITED UTTERANCES ARE INTRODUCED , THE IS SUE OF UNAVAILABILITY IS NOT REALLY THERE.IN A LOT O F CASES, YOU WILL INTRODUCE EXCITED UTTERANCES , AND THE DECLARANT IS PRESENTIN THE COURTROOM AND TO INTRODUCE AS IMPEACHMENT OR FOR OTHER REASONS. HERE WE ARE TALKING ABOUTTHE NARROW CASE WHERE THE DECLARANT IS UNAVAILABLE .

I WOULD LIKE YOU TO DEFINE AS BROADLY AS POSSIBLE, G IVING AS LITTLE DEFERENCE TO EXCITED UTTERANCE IN ANY CASE , BUT IN THIS CASE WE REALLY HAD TESTIMONIAL STATEMENTS.

CHIEF JUSTICE: WHAT IS THE SI XTH A M ENDMENT VALUE? THERE IS -- THIS IS WHERE I AM HAVING DIFFICULTY , THE EXCITED UTTERANCE THAT SMAD TO A NEIGHBOR , AND THE N THE OTHER -- THAT IS MADE TO ANEIGHBOR, AND THEN THE OTHER EXCITED UTTERANCE IS MADE TO A POLICE OFFICER, BUT THEY ARE BOTH MADE UNDER THE SAME CIRCUMSTANCES AND YET IN ON E THE SIXTH AMENDMENT IS GOING TO DMAEND THIS OPPORTUNITY FOR CROSS-EXAMINATION AND -- DEMAND THIS OPPORTUNITY FORCROSS-EXAMINATION AND THEOTHER IT ISN'T. IT SEEMS LIKE WE WILL SEE WHAT PART TWO O F CRAWFORD COMES OUT WITH, BUT THEY ARE NOT REALLY GI VING U S A LOT OF GUID ANCE AS TO YOU HOW , REALLY , TR ULY TO PROTECT THE DEFENDANT'S RIGHTS, HO W WE ARE TO GO ABOUT THIS.

I THINK IT IS A VALID DISTINCTION.WHAT THEY ARE TALKING ABOUTIS, IF A POLICE OFFICER COMES ON TO THE SCENE AND HE HEARS SOMEBODY S HOUT "HELP ME, HE HAS GOT A GUN" BUT NOT NECESSARILY TALKING TO THE POLICE OFFICER. HE DOESN'T KNOW THAT THEPOLICE OFFICER IS THERE.THAT IS NOT TESTIMONIAL, BECAUSE IT IS NOT INVOLVING AN AGENT, A POLICE OFFICER OR AN A GENT. THEY OVER HEAR THAT. WE ARE CONCERNED ABOUT STATEMENTS MADE TO POLICEOFFICERS OR OTHER AGENTS OF THE STATE. IT MI GHT BE A CHILD PROTECTION TEAM .

CHIEF JUSTICE: ARE YOU A SKING NOW , IT SEEMS LIKE EVERYONE IS ASKING FOR PE R SE RULES THIS MORNING AND THOSE ARE NICE , PER SE RULES, BUT ARE YOU ASKING FOR A PER SE RULE THAT, IF THAT EXCITED UTTERANCE IS MADE TO A POLICE OFFICER, IT IS ALWAYS TESTIMONIAL?

I AM SAYING THAT THE ISSUE OF WHETHER IT IS TESTIMONIAL , YES, IF IT IS MADE, IF IT IS A STATEMENT MADE TO THE POLICE OFFICER,I AM FOR A PER SE RULE THAT SAYS WHETHER OR NOT IT IS EXCITED UTTERANCE . WE WILL PAY ATTENTION TO THAT.

CHIEF JUSTICE: AS OPPOSEDTO THE TR IAL JUDGE MAKING TWO SE PARATE INQUIRY , ONE AS EXCITED UTTERANCE AND TWO MEETING THE STANDARDS OF CRAWFORD. SHOULDN'T , HAVING SOME OF THE CASES SAID , YOU HAVE GOTTO REALLY LOOK AT THEM.

I AM BECAUSE OF WHAT JUSTICE ANS TEAD REFERRED TO , THAT ONCE YOU GET TO THAT , YOU SHOU LD START WITH WHETHER IT IS TESTIMONIAL IN YOUR ANALYSIS AND YOU SHO ULD END YOUR ANALYSIS ON WHETHERIT IS TESTIMONIAL. IF YOU GET INTO EXCITED UTTERANCE , YOU GET INTO RELIABILITY .

JUSTICE: CRAWFORD REF USED TO ARTICULATE A DEFINITION OF WHAT TESTIMONIAL IS , CORRECT?

WELL, IT GAVE A LI MITED DEFINITION .

JUSTICE: THEY SAY WE L EAVE FOR AN OTHER D AY HOW TO SPELL OUT THE COMPREHENSIVE DEFINITION OF TESTIMONIAL , AND I T SEEMS ONE OF THEPROBLEMS IN ALL OF THESECASES THAT I AM LO OKING AT F ROM FLORIDA COURTS, IS THEY ASSUME THAT THESE TH REE FORMULATION S THAT CRAWFORD ARTICULATED , WERE INTE NDED TO BE A PRESCRIPTION FOR HOW COURTS ARE TO LOOK A T STATEMENTS , WHEN THE WAY I READ CRAWFORD , I T IS ONLY A DESCRIPTIVE STATEMENT OF HOW SOME PE OPLE HAVE FORMULATED THE DEFINITION , AND IT SAYS VARIOUS FORM ULATIONS OF THIS CORE CLASS OF TESTIMONIAL STATEMENTS EX IST , AND THEN IT QU OTES , FOR ARE TWO OF THE THREE TESTS , IT -- FOR TWO OF THE THREE TESTS ANDIT Q U OTES THE BRIEFS FILED IN THE CASE AND SAYS THESE C ASES ALL SHARE COMMO N NUCLEUS AND SAYS VARIOUSLEVELS OF AND EXTRACTION AROUND IT, REGARDLESS OF THE PRECISE ARTICULATION , SOME STATEMENTS QUALIFY UNDER ANY DEFINITION, FOR EXAMPLE EX P ARTE TESTIMONY AT A PRELIMINA RY HEARING, SO IT SEEMS PRETTY CLEAR TO ME , GIVEN THAT STATEMENT AND A L ATER STATEMENT THAT THEY LEAVE A COMPREHENSIVE DEFINITION THAT , THEY DENIED INTENT FOR LO WER COURTS TO A PPLY THIS 3- PART TEST TO DETERMINE WHETHER STATEMENTS WERE TESTIMONIAL. CAN YOU ADDRESS THAT?

THIS 3-PART TEST , I --

JUSTICE: WELL, THE COURT BELOW FOR EXA MPLE , DETERMINED WHETHER THEY USE ONE TEST, WHETHER STATEMENTS THAT WERE MADE UNDER CIRCUMSTANCES WHICH WOULD LEAD AN OBJECTIVE WITNESS REASONABLY TO BELI EVE THAT THE STATEMENT WOULD BE AVAILABLE FOR LATER USE AT A LATER TRIAL, AND THEY SAY THAT CRAWFORD RE QUIRES CONSIDERATION OF THAT FACTOR , WHEN IN FACT THE WAY I READ CRAWFORD, IT WAS SI MPLY QUOTING FROM THE BRIEF FOR THE NA TIONAL ASSOCIATION OF CRIMINAL DEFE NSE LAWYERS AS AN EXAM PLE OF ONE DEFINI TIONTHAT HAS BEEN USED .

THERE WERE LOTS OF SOURCES OF MATERIALS THAT WENT INTO CRAWFORD, AND THEY TALKED ABOUT WHAT THE FRAMERS ' ORIGINAL INTENT WAS, AND THEY DIDN'T WANT SE CRET TESTIMONY. THEY DIDN'T WANT WITN ESSES SAYING THIN GS AGAINST OTHERPEOPLE AND THEN NOT HAVING TO COME TO COURT AND SAYING THEM UNDER OATH IN FRONT OF A JURY WHERE THEY COULD HAVE PROPER CONFRONTATION.

JUSTICE: PART OF CONCERN THAT I HAVE IS, IF YOU ACCEPT THAT LAST DEFINITION THAT JUSTICE CA NTERO WAS JUST TALKING ABOUT , IF YOU HAD A CHILD IN A SCHOOL SITUATION GIVE A STATEMENTTO THE PRINCIPAL OR TEA CHER AT SC HOOL , WOULD THAT BE TESTIMONIAL ?

IT WOULD DEPEND ON WHETHER OR NOT THE TEACHER OR THE PRINC IPAL WAS ASKING AS AN AG ENT FOR THE STATE.

CHIEF JUSTICE: IT SEEMS LIKE WHAT YOU ARE SAYING AS I HEAR JUSTICE CANTERO , IS THAT THEY DIDN'T GIVE US, THIS IS THREE AND THAT I S NOT GOING TO , S ORT OF LIKE STAY TUNED AND LUCKILY W E WILL BE AB LE TO HEAR THE N EXT EPIS OD E IN JUNE AS TO WHAT THEY --

I AM LOOKING FORWARD TO THAT, MYSELF.

JUSTICE: I AM NOT AS CONFIDENT AS YOU SEEM TO BE THAT THEY HELD THE EV IDENCE CODE UNCONSTITUTIONAL, EITHER, WHICH WOULD A FFECT THE READ ING OF CRAWFORD , WHICH DE ALT OUT HERE SAY -- HEARSAY , THROW OFF HEARSAY.

CHIEF JUSTICE: I DON'T KNOW IF YOU --

WELL , WE WOULD LIKE , IN SUM, I WOULD LIKE YOU TO AFFIRM THE FIRST DISTRICT'S HOLDING IN OVER TON AND QUA SH THE FI FTH DISTRICT DECISION.

CHIEF JUSTICE: THA NK YOU. THANK YOU.