we'll hear arguments first this morning in case twelve six o nine kansas versus cheever please the court once the respondent made the trial decision to make his mental status an issue and then supported his argument by introducing as evidence the testimony of a mental health expert who had examined the defendant he no longer could properly claim the protection of the fifth amendment to avoid li rebuttal by another court appointed expert when the kansas supreme court allowed the respondent to do just that it committed constitutional error and should be reversed for three reasons first this court cases point to the opposite conclusion second allowing this mental for mental expert rebuttal is consistent with this court's precedent with the purposes of the fifth amendment and it is fair and third a holding that is consistent with the kansas supreme court rule would have the effect of undermining the truth seeking function of the trial by excluding relevant evidence from the jury especially in the mental health context where the jury has to make an assessment of a source not of that it be true the last would be true even if the defendant had not sought to introduce expert evidence of his own right if that would be true your honor we're not asking for a rule that that is that broad we're asking for a rule of parity that allows that once the defendant has opened the door by putting his own expert on the government may respond it went well but just kind of justice scalia i mean that makes your case easier but it seems to me that the senate puts his mental capacity in issue and then testifies him self no expert the state can still call its own expert and so far as a prosecutor far as the federal constitution is concerned there might be some kansas rules about your honor that may well be true in the language of this court's precedent through smith and buchanan for example suggest that the rule may be broader than the minimum that we're asking of course the issue is not whether the stake call its own expert the issue is whether the state can to speak to its expert yes your without which the expert can't testify yes your honor the fifth the member of course is implicated when we're talking about a mental health expert who has conducted an examination of the defendant the respondent that's what we believe is appropriate here in terms of the parity rule once the defendant puts on his expert who has done so the government may responding well that is if i could just make that it's it seems to me that it's not necessary to make our decision depend on whether or not another expert has been called that makes your case easier and sometimes when we write opinions we take the easiest route but i take it under your theory even if the defendant had not called his own expert we would still have the same issue before the court and you would take the position that a prosecution expert can testify now whether or not he can use the previous statements that's that's that's the second point in your honor that the hypothetical you are posits is closely related to the second question kansas presented which was not granted in this case which would be the a peach might use wants to defend himself as testified that he didn't defendant would have to introduce the issue of his mental state either by his own testimony or not but there's an oddity about this case do i understand correctly general smith that if they had never been a federal proceeding if this case had preceded from start to finish in the kansas court they would have been you know well in their evidence they would have been no prosecution expert because that wouldn't have been allowed under kansas on move your out of kansas law makes the distinction between voluntary intoxication as a defense and mental disease or defect as a defense and it does provide a mechanism under mental evaluation that is correct the reason i didn't merely say yes is we do have some disagreement with the other side that would be dealt with in the courts below as to whether this truly was a voluntary intoxication defense since the other side's expert did put the long term effects on the bennetts metal capacity and issue based on his methamphetamine use of it and i long to think that the issue in this case is whether there was compulsion at the time when the statement was made to the  court ordered expert just that was the issue it's not it wouldn't be a question of whether there was a violation of the fifth amendment privilege at the time when the statements were later introduced in the kansas trial isn't very well settled in this court's precedents that the introduction of statements obtained a law that the introduction of statements out of trial is not does not implicate the fifth amendment privilege well your o compulsion question is a threshold question and to the extent this court has recognized for example in cases like bench was that there are truly compelled statements up for tasher means the sort of circumstance that threshold issue would result and this is not that case in fact any compulsion that might be involved here is much closer to what happens when a defendant makes a trial decision to offer himself as a witness and go on the stand and then as a matter of operation of wall must subject themselves well that's the issue as i see it but maybe i'm long correct me if i'm wrong maybe mr cal will that the issue was whether there was whether unconstitutional compulsion at the time when the statements were obtained but i thought it was very well settled that if there was a compulsion at that time in the interim the later introduction of the statements into the into evidence at the trial does not implicate the privilege against self incrimination that would certainly be true justice alito absence of what happened in state court really is irrelevant to this this is everything  that everything important here was done under rule twelve point two of the federal rules of criminal procedure and that's the and that's the issue if the compulsion test settles the matter of justice alito yes that is correct even if it doesn't settle the matter we think  but insofar as the federal constitution is concerned why doesn't it i think it can there is some dispute between the parties on whether there is a sort of category of compulsion called something else perhaps which doesn't rise to the constitutional bar standard for example the respondent has argued that although this may not be like british immensely there is still nonetheless some inappropriate burden upon the choice that was made that that is somehow constitutionally suspect so i'm merely trying not to  grounds that even if and i agree with you there was not constitutionally barred compulsion here still there is a way for kansas to prevail in the case i'm coming back to it justice ginsburg's question of the kansas supreme court held that the introduction of the can allegedly compel testimony given to the to the psychiatry violated the federal constitution but why didn't the kids the supreme court simply hold that there was no no right on the part of the prosecution to up jane that rebuttal evidence or to introduce it since this was a case of voluntary intoxication you tell me that kansas does not allow this just for voluntary intoxication and that was the that was the defense he was raising right your honor i don't know why the kansas supreme court chose to settle this by interpret in the fifth amendment in a manner that we believe is incorrect but nonetheless that's what they did that's what they did so when we sent it back is it still open to them to decide that under kansas determination made by the kansas court that the fifth amendment keeps our rebuttal witness off the stand at all and we have to get past that in order to get to related question and that is as you say a question of cancer slow so the odds for us to resolve  any way we are right i think that is a question of fifth amendment law the kansas supreme court interpreted the fifth amendment as creating a bar upon dr welner so i'm saying the question of whether the the cross examination went beyond the scope of the direct and whether that invalidated that that wouldn't be resolved under the federal rules of civil procedure but rather under kansas lower your i believe that is correct as a practical matter this court has recognized in the fifth amendment contacts that there are outer constitutional balance with respect to scope for example the relevancy statute you recognized in both brown and the golf but those are not implicated here and as a practical matter the sorts of allegations that respondent is now making although they weren't objected to a trial unusual people who's actually exposed to would for audi of different people in his life he had people who were criminal types who were drug users he found himself identifying and looking up to people alternatively described as bad boys are was looking up to them being impressed in all by them and in certain circumstances wanting to do them that doesn't seem to have much to do to the with the issue that the defendant put in to the he  wanted to put in the federal court which was he wanted to ask about his mental about his words exactly are a defense of insanity which can be interpreted broadly namely whether he's insane or not so we both have the government experts saying no he's not intervene in the government expert going on to give an explanation of why he shot the sheriff so is that is that in your opinion something we should say that's a serious question whether to be because they have introduced the what we'd say is the defense has introduced a an argument that even if it's proper for the introduction of the government's expert witnesses under the fifth amendment it still cannot be beyond go beyond what is what's your exact word reasonably reasonably related was the phrase reasonably related to the defense of insanity that the defendant himself raised and that would be an issue for the kansas court to d can i go back to the line during just a question that some of my colleagues have focused on if you were to say that this was not compelled speech presumably there be no reason the government couldn't use this record whether or not the defendant put his or her mental state at issue because if it's not compelled you can use it as affirmative evidence correct if it is not constitutionally impermissible in the nature of a compulsion honor seems a somewhat if i may finish off from assuming that i'm troubled by that holding then what's the line we draw or with respect to the question expert but the broader question of if he puts his mental state at issue without an expert could you do it could you still put on his examination not sure you've really answer that question you have leadership is how broadly do we hold there's a waiver whenever you put in your mental state at issue or is it a waiver only when you use an expert and then this case and this expert from the government came in when the case was in the federal system the federal system has a rule that when the i believe what we would what it would see there are other circumstances where it might be constitutionally permissible mr chief justice with permission i'd like to reserve the balance of the time thank you harshly mr chief justice and may it please the court when a defendant puts his mental state an issue through the testimony of an expert whose examined him the state member but that testimony with its own expert who examined the defendant fifth amendment does not allow a defendant to put on his side of the story and then deprive the prosecution of any meaningful chance to respond and we think the close an allergy here is the situation where a defendant himself takes the stand to the extent that the question to the court has questions about scope of the government's ability to respond we think that those are answered like the general said by the questions about when the defendants takes the stand reasonably related to the subject matter that the defense put on even if that even if the defendant does not submit  puts i think that that's a different case the court cases a stele buchanan powell have addressed an expert for expert situation and the specific rationale there is that this mental health opinion testimony is different in that you really can't have an expert give an opinion without examining the defendant if we're talking about the defendant's testimony he's not qualified to be an expert he can give factual statements about what happened to him and what was happening at the time of the crime but he's not giving an expert opinion so to us it does seem to be a different question about whether it's really reasonable to have an expert to rebut that testimony the court just doesn't need to decide that question this case there's also a second question that the general routed to which is if he makes factual statements during his mental examination the going not terribly pertinent to the mental diagnosis but valuable evidence and the defendant takes the stand can the government call his person he happens to be the doctor that took the the examination but he learned some things here that we think are helpful i think this goes back to the questions that justice alito starr and started asking about which have to do with where there is compulsion here if at all this is a unique situation in that there is a court ordered mental exam but it only happens as a result of the defendant's choice to get the notice of putting on the defense and then the evidence for the exam at least under the rules never comes in intel he puts on his evidence first it's really a parity principle that the court recognized in a style and in buchanan in those cases we read them to for the court to have said that there is sufficient compulsion in the ordering of the exam to raise fifth amendment questions but when the defendant opens the door the fifth amendment just doesn't give him any right to stop the prosecution from responding but if the court wanted to find that there was no compulsion in these statements could be used for any purposes we think that would be more than the court said in those prior cases but this is a different situation in that it is the defendant's choice that that affects whether this is ever going to come in this is not the type of  compliance with rule twelve point two of the federal rules of criminal procedure so if there's in so far as the taking of the statement his concern which i'm suggesting is the issue and not the later introduction of the kansas court am on the if the question is is will point twelve constitutional we think the answer is pretty clearly yes if you look at the way that that rule is evolved it's evolved in response to this court's decisions and about the understanding of the fifth amendment that there's a like for like principle that when the defendant puts now here that's not the case the defendant has asked for something and has opened the door conceivably but the examination that we're talking about is one the state has compelling that the defendant does not wish to undergo that's a big difference between this case and all the ones you rely on that's a factual difference from for example you can and and but we think the principle is the one that comes through in the court's cases that if the defendant opens the door the state can respond and we think that the court  repeated that principle numerous times and buchanan it's then on page four twenty five the decision defense counsel is i notice that if you open the door the government can rebut and it's actually interesting i think every member of the court understood although it wasn't clear from the majority opinion that that could mean a separate examination and i would point the court to justice marshall's dissent of no five where he says of course you could have your own separate examinations going seems to me to bring this but the bolding of the case is that the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested right that that was the specific holding based on the facts to back case but because the court i mean i guess the question is that you say is a factual difference it might be a factual difference between compulsion state has the same access to the defendant as the defense expert had because the state's expert is unable to come up with an opinion without a personal examination of the defendant this was explained very well in your decision for the plurality of the d c circuit in buyers which is  say that he's been compelled we've called it a waiver by the defendant's conduct for two reasons one that's what this court called it in pa when it was describing its holding in buchanan two that's what this court as it's called it may point you to page fifteen of the gray brief in the cases about what happens when a defendant takes the stand but in the act of taking the stand he has waived his fifth amendment rights but you don't have to call it a waiver the point is that the fifth amendment does not extend so far as the defendant claims it doesn't allow him to both put on his side of the story and then claim that the government can't have a chance for any meeting for a bottle so you know we really don't think that that label matters we think that the buyer's d c circuit we think that the pope decision that was well before this court's decision by then judge blackman which said you know call it either way you know the result is the same which is  experts and then the government can claw experts and is not to say that it defendant simply offers his own testimony the government can do something that the defense has not opened the door to that's right the state has an expert who examined the government the defense has an expert who examine the defendant the speaking use an expert who examine the defendant it's a parody principle there it's a different question about trying to revive her impeach the defendant's own statements well i'm presuming that if  takes the stand and says something completely contrary to what he tells the government psychiatry's that you would rely on the brown line of cases that you could cross examine him on the psychiatrist again we think that's the second question presented that the court didn't grant them but there are good arguments for why the defendant once he opens the door should not be able to slam it shut also we think this court's cases like ventris that have to do with the recent cases on impeachment would go to thank you mr chief justice and may it please the court the state is trying to use scott cheever's words to execute him that's wrong for many reasons but the simplest one is that whatever the scope of the fifth amendment waiver may be in this case the violates the fifth amendment when the mental examination was ordered in the federal court after the defendant said i am going to put on a couple of witnesses expert witness small part of the application of twelve point two two d and for that reason we think that the court should avoid that constitutional question by focusing on the scope question which is a federal fifth amendment question justice scalia not one kansas law and if i could walk you through a twelve point two thinking pro point two d excludes testimony from the defense expert or maybe it's permissive and so to the extent that a trial judge a federal judge excluded evidence that the defendant wanted to put on because he didn't because he didn't submit to the exam or the like we do think that that application would be violated and that would the that's not a comparison a self incrimination question though isn't it it's  a due process question it's an unreasonable limitation on the defendant's ability to put on a defense your honor if the clash between it's just like symonds it's a clash between two different constitutional rights the right to put on an effective defense on the one hand testify about mental condition period that's it that raises the due process issue and maybe there would be a serious due process question right out it ok quite right up to that point we're not yet at the flight right around here but when a state like kansas offers the voluntary intoxication defense makes it part of the if the state's burden to prove is an element of the offense and then conditions that by saying well if you put that evidence on you then have to pay the price admit to a five and a half hour on agreeing on a legal then why are we here we have already agreed well that it that is ultimately what we think it avoids a constitutional question by the by doing that in this case is never square this court has never squarely held that the legal proposition that both sides are now in agreement with cantor's decided the constitutional question and we can't send it back unless we reverse the supreme court of kansas so use it we were going to dodge the constitutional question how can we i think it with that it is that it reached to ultimately decide this constitutional question on twelve point two they don't have that that's that's error i mean i understand it's general policy you know reach a constitutional question once you have to but i've never heard  proposition that if a court unnecessarily reaches a constitutional question it can be reversed and we can send it back and say don't reach that course journalists really think that's available to particular in the context of this case in which there's such an interlaced friendship between and they wouldn't get to it unless they held that yes you can have this one but both testimony then the next question is if you can have it how far can  side that what's at issue here is not whether or not the states care whether or not the state can follow where the defenses lead but rather how can they follow in here the state is doing something that there is literally that this court has never small part can you be explicit in rural as i understand it says if the defendant is going to introduce evidence concerning his mental state then the government has a right to have the government's expert examine the defendant and rebut what the defendant's expert say that's what the viewer says and then he says you can go beyond the scope of that issue of the mental state i think that's mostly right if i could be a little bit break down the rule little bit twelve point two d has the provision which says that if you that the price of not so many into the exam is the exclusion of the defense expert so we think about that if it's a permissible but if it's applied we think that's unconstitutional there are other parts of twelve point to which it always was constitutional to say to the defendant you have a choice the that the state can introduce expert testimony on an issue were guarding mental condition on which the defendant has introduced evidence and it's not clear to me whether or not that's talking about a you can in situation one in which the defense has requested the exam or not it's on which the dependent has introduced evidence the evidence it depends expert exactly and so to the extent your honor that it to use the two to introduce as it was in this case  time the defendant chooses to testify so louis need not to testify but if he introduces that evidence he must submit to cross examination and has to incriminate himself and this is seems to me quite similar he need not introduce the evidence of a psychiatry is but if he does he has to forfeit his fifth amendment right not to talk to a psychiatry when we were the first seventy five percent of that that is that certainly it's the case that when the defendant takes the stand they're subject to cross examination cheever took the stand be subject to cross examination cheever's expert takes the stand evidence he subject to cross examination but the question here is whether or not the state can go further and force someone to submit to a mental health evaluation and use that against them in owner stammered but it still it's still the same the same call relative  one accounting case a criminal accounting case in the defendant had talked to the c e o of the company talked to an accounting expert walk them through all the books and so on and said here's what happened and so on and the expert took the stand i don't think the state could mind when he is when he is raising a mental capacity defense and justice scalia that's precisely cuts the other way this court in couch versus united states said that's the heart of what the fifth amendment is about the intrusion into defendants by been here this case is a perfect illustration of the it's just the fact that the evidence here is based on the defendant's statements if you had a physical object you wouldn't say it's the the murder weapon you wouldn't say that if the defendant submitted a study about the murder weapon the ballistics this in that you wouldn't say well all the government can do is cross examine the defendant's expert you say no they get to do their own study the reality that makes this different is that here when you're submitting and preparing psychiatric evidence it's based on the ballistics testing is statements from from the defendant and it's seems to me unfair to say the defendant expert has access to that ballistics evidence but the state chief justice i think what does the work in your ballistics example is precisely that it isn't the defendant's own words it's some else and so it's wholly outside of the fifth amendment what we're talking about here in this circumstance is scott cheever's own words  there's no i understand and put it just so happens that the way you do the testing on the evidence when you're talking about psychiatric evidence is to ask questions of the defendant that's how you do it that's the parallel to whatever ballistics tests they do on the on the fight against but i think the fifth amendment imposes a different value judgment of our founders based on this type of situation in which you aren't hearing into the defendant's mind i think that's what the language and couch versus united states is all about that there is a difference well we're going we're what i was saying to justice ginsburg that this choice the simmons like choice was forced upon the defendant he could i just put on his toe and you're in your if you in your view the defendant can be interviewed by his own psychiatry's but not in a prosecution for  disagree your honor with the bottom line holding in the buyer's case that yourself and justice scalia was on we think that that reasoning the way that the court got there was to say that there was a policy based reason under the fifth  amendment that allowed this so wasn't waiver what you've been hearing about it was a policy based reason and frankly i think that ultimately this is a good the government's argument both governments is an argument in search of a theory we've heard a bunch of different ones we've heard the buyers one about i'm not waving my fifth amendment privilege wouldn't matter if he said it a hundred times he would be exposed to cross examination by justice ginsburg we think that byers ultimately the language the way it got there was purely policy and we think that this court has in the thirty years since buyers really changed to the game on the use of policy based reasoning when it comes to the fit of that policy why isn't the cross examination analogy policy as well i mean they are both based on some notion of what is parity and what's reciprocity and what's you know what's appropriate to ask the defendant to bear once the defendant the science to become a witness  proceed and so they're both the same kind of policy you want to call it that but it's it's one is no more policy than the other i don't quite think that's right the text of the fifth amendment is that a defendant can't be equal compelled to be a witness and once a defendant takes the stand and acts as a witness then it seems to me that his behavior inconsistent is burglarized versus thompson suggests with the invocation of the fifth amendment privilege and you've got to be like can you give me the black letter formulation are asking this court to adopt it but only if the fifth amendment when and when a defendant is forced to undergo a psychological examination as the price for putting on his mental state defense at least least one is an element of the offense without that you have to get into his or brief explains affirmative defenses like the federal defense and what you say as the price of putting on each defense you meet as the price for introducing the testimony over the psychological that is correct justice  already so that is what it's several key but i think sentences the best case justice harlan's opinion for seven july means that you know the obvious it's not a question of policy but one thing the fifth amendment grants you from being a witness against yourself you didn't take a stan so what you did was introduced recycle august and they said this man was totally insane he could from no will whatsoever totally and say the government says we have seven psychologists who would like to examine this man impossible position the defense is allowed witnesses who have examined the defendant and you mean the defeat your only limited to the case for the defense witnesses don't examine the defendant saying that if that in a circumstance that mad all right that's his conclusion based on the examination psychiatry's be who works for the government has examined the witness under compulsion and he's done it under the authority of twelve point t because the defendant justice here made a twelve point two motion and said that this was a right just like here he examines it he comes to the conclusion this man is as sane as whatever the most same thing right talk to your psychiatry to be introduced his own words against him that's what the fifth amendment is about now understand sure the government isn't going to have the evidence that it wants it's going to be the price of the fifa suppose we as a person we grieve with you and the response is the adoption of a new federal rule of evidence or a stable of evidence that says that evidence of a better expert who testifies for the defense as to the mental can the insanity or mental state of a defendant is very unreliable if there is has not been an opportunity for the defendant to be examined by another this the the defense says my defense will consist of the fact demonstrated by an expert that my heart is too weak to have made it up the stairs and i have dr smith was examined my heart and i he will testify it's impossible i could have been on the third floor i would have been dead so the government says we would like to have you examined by our doctor d know lack of compulsion theory and pick one and tell us the the reason why that's preferable to the other certainly i think lack of compulsion is not something that really is being advanced by the government in this case even their opening lines that they were argument are focusing on wafer and not that and i think it would raise any number of concerns like the ones you suggested to go on a compulsion theory that will allow the introduction of evidence even if the defendants hasn't led in that direction but i would like to try and take another shot at it persuading your colleagues i thank you and i go back to the cross examination analogy because you say your case is different but i guess you'll have to explain that one to me it seems to me the cross examination cases say you can't become a witness halfway once you've decided to become a witness you have to subject yourself to all the things that every other witness is subjected to and it seems to me that while you haven't convinced me that the same point isn't true here that the person mr cheever has decided to become a witness essentially by giving an interview to his own expert and allowing his own expert to speak about what mr keefer has told him and so you know he can't do it halfway now the government has to get its shot same one i don't quite think that the cross examination cases go so far as to say that it leads to the same way in it and gets you so far as to say that if someone testifies if an expert testifies using the defendant's own words that that opens the door to the prosecution doing so there's something unique about the fifth amendment and the idea that the government can peer into someone's mind and extract information out of mirandized five and a half hour session and have that used against him a trial and the price that she ever paid here was an extraordinary and he put on a defense that has been a defense for hundreds of years the idea of voluntary intoxication and he was told the cost of doing that was that this exam took place and all of this evidence ranging about outlaws and so on was introduced well that's something of an overstatement because he also ha just the fact that the defendant with the defense expert testified to voluntary incapacitation under methamphetamine and certainly the prosecution expert did that as well but then the prosecution expert went a lot further to talk about how his an anti social personality disorder to suggest i was in the i was evidence was introduced by the state first in the context that is so it's not right but i do think it does bear on when you think about whether the simmons analogy makes benenson want to put on a defense a mental state you can't put it on unless the government can put it on it is when i'm not sure that they would favor it or not an argument is simply that when a state such as kansas recognizes the voluntary intoxication defense and doesn't have all these witness rules that cheever's entitled to put on that effective defense and not have that right flash against his fifth amendment right and indeed the fact that the state has all sorts of options available to it like expert like expert evidentiary rules or even abolishing the voluntary intoxication defense all together is the true answer to the policy concerns not trying to jigger into the fifth amendment is somehow some exception that allows for psychiatric exams by criminal defendants a bitch of the prosecution would accept your alternative in a heartbeat if there were no no no defendant can introduce any psychiatric evidence that's a good deal for the prosecution maybe it may not be that something the legislature would hammer out but i think that's where the modifying the voluntary intoxication defense possibly making it an affirmative defense we're putting restrictions on experts any number things that may be possible in that circumstance or the legislative process not through some fifth amendment interpretation of this court to try and deal with the policy of clothes that were is there really a huge difference between mental state as an element of the offense and mental state as an affirmative defense i mean in reality it doesn't doesn't the mental state argument i've heard you defend that function as an affirmative defense to premeditated murder versus davis i think explains that in a circumstance like this like voluntary intoxication the defendant is not interjecting some new issue into the trial the defendant is simply rebutting the premeditation argument which  burden to prove and if you accept their argument here you're essentially saying that the defendant's own words can be used by the state to shoulder the load against him and that is something for him to the fifth amendment it may be something you want to do for policy reasons i understand that but it is not something this court has ever accept there are no the questions thank you mr contrail general schmidt you have four minutes remaining famous to chief justice i would just like to refocus on what has happened in this case the kansas supreme court interpreted or we believe misinterpreted the fifth amendment to say that once the defendant had put his own expert on the stand to testify in support of his mental health claim after that expert had examined the defendant the government couldn't responding and it's that bar on our participating in the fact finding in front of the jury we're seeking to have over the same is that look in simmons there's a fourth amendment problem in the event that wants to testify in a fourth amendment hearing and if he does the state will take that statement and use it at the trial so because of the reasons i'd say the policies underlying the fourth amendment the court says that's wrong he can go testify at the suppression hearing and then they can use the statement later so by analogy he says it's really a similar situation he says that the all the see behind the fifth amendment that says that if you're going to go see the government under compulsion the psychotic you shouldn't be able to introduce that later i mean i think that's looking out them because i'm trying to see if i got the argument basically right which is what i wanted to find out and now what's the response to that particular argument i think your honor the symons circumstance is not applicable here and in fact the court would have to substantially expand symons in order to find it to fit these facts we have to say then there's a difference between the fifth amendment and the fourth amendment and that difference would be what well you're out in the simmons case what the government sought to do was to take the defendant's unvarnished statements from the prior hearing and to introduce them without the defendant having put those issues into the fact finding portion of the trial as affirmative evidence in the government's case in chief in that regard it is much more like smith on his facts where the court said even in the circumstances we're confronted with here on those facts can't do it the court specifically said later in the case that it hadn't addressed the question in simmons as to whether or not the government could use that evidence from the suppression hearing for impeachment purposes which is much more analogous here so it's an open question even under symons even if it applied and the court have to extend it in that regard the court i would suggest shouldn't extend symons in that regard different i understand terminator and they say well look you know we get to put your expert in who wants just you know particular questions what happens then well on particular questions i suppose the respondent could invoke at that time but more importantly before any of that could be introduced at trial there would be a report generated by the expert in all counsel including the respondents counsel would have the ability to review it and seek some sort of pretrial order to keep out of it particularly offensive material there are mechanisms to resolve any problems like that that might arise not quite sure i understand why we shouldn't follow the since analogy is as i understand it just we haven't ruled on the last question of whether you can use the compelled statements and some pietschmann but if we assume that to be the case in those circuits who have addressed the issue and i think it may be all of them have said you can because there's a waiver of your fourth amendment right when you take the stand to impeachment why couldn't the key difference and simmons and the reason it's reasoning shouldn't be applied here is that the distinction we've been drawing from the start of this case is that what we want is a rule of parity we want to be able to rebut what the defended himself put in issue in front of the jury and that's not sentence thank you counsel cases submitted