good morning and i've been venire hoffman for plaintiff appellant john smith i'm going to attempt to reserve five minutes before that happens john smith's met nearly twenty years wrongly imprisoned for a murder he did not commit before his actual innocence was a stablished by thorough reviews conducted by the los angeles district attorney the california attorney general and the state victim compensation board but wasn't the issue in the one nine hundred eighty three action whether or not the investigating homicide detectives knew that they were framing an innocent man no actually the issue in the one thousand nine hundred three suit was whether the officers engaged in misconduct suggestive identifications coersion or they don't need to know as apologize they don't need to know that he's innocent they need to have engaged in the misconduct and there was no dispute that the entire trial came down to two different competing versions of events and it all depends on  was the district court wrong in saying look we're not going to retry the murder case here what we're going to do is examine what the investigative detectives knew and whether or not their actions resulted in dispute that going into the photo array the defendants police officers already suspected john smith there's no dispute that at the end of the photo array the surviving victim of mba identifies john smith and there's no dispute that move now he never saw the shooter he had no independent basis to identify him and the only reason he identified him was because of the suggestion and coersion by the detectives and there's other thing but the civil jury heard all that evidence did they not  returned a difference verdict they hurt which to my mind says they heard the evidence but they didn't think that it was credible and that the investigating detectives did not misspeak as seven circuits including this one have found in the defense of plans and nothing contradicting that innocence evidence on its own can be critical circumstantial evidence affecting very want to introduce evidence of the administrative agency ruling in order to influence the jury's decision the district court said no i'm not going to let you do that because i don't think that's that's proper but i will allow you to introduce the evidence through the testimony of the witnesses which you were permitted to do so i'm i just don't see the error here how did the district court of uses discretion in telling the jury we're not going to retry the and also several decisions prior decisions of this court including johnson the city of present and keep the ball pay the supreme court in beach that make clear that each aircraft make clear that eight administrative decision like the one in the from the victim compensation board is admissible evidence for its truth there is an adversary proceeding as the did the officers have a right to counsel is there somebody on behalf of the state arguing that damning witnesses i can't tell from the record exactly what happened other than the fact that the agency issued a decision and wrote a check there is an adversarial proceeding the state's interests are represented by the california attorney general these are hotly contested there it's very difficult to get a finding from the victim compensation ford of innocence and compensation and what evidence is there in the record other than the final ruling by the agency and the there within the record at that you look at e r i believe it's five five seven which is within the victim compensation board record it indicates that that both the district attorney and the california attorney general conceded innocence which is incredibly rare in this case  keep giving me conclusions and what judge o'connell was wrestling with was i don't know enough about the proceedings of these agencies in order to determine whether or not the administrative agency ruling is properly admissible and under the rules she's permitted to determine that this is not a reliable or trustworthy source of information without knowing more about how the conclusion is  and case law hold that otherwise admissible record can still be excluded if the district judge determines that it's not reliable that so the the ninth circuit exactly i don't believe that's true what it says is that the there is a presumption of trustworthiness and it just the burden shifts to the party opposing the introduction of this evidence to show to introduce evidence showing why it's not trustworthy and the record is clear that first of all the district court was using the wrong legal standard which is per se abuse of discretion also to the extent she mentioned eight zero three eight at all she said that the administrative law judge is not a public agency because it's not elected to office that's complete legally wrong that has nothing to do with the test under eight zero three eight and then she said plaintiff you have not introduce sufficient evidence that shifting the burden to the point of and this court has reversed district courts before even when they actually identify eight zero three eight for improperly shifting the burden on to the party seeking the introduction of the evidence that's what it did in johnson the city of pleasanton and we cited some additional authority examples of that in our great council what exactly were you it would be possible to say certain sections of the report the whole thing is admissible under eight zero three eight you could do a line by line and say certain parts of it should not come in under four or three but what you can't do is say that and again this is not what the court did because the court didn't apply it or three it it all but what you can't do is say i'm going to disagree with the policy judgment underline eight zero three and say on my own that i don't think public records are admissible under four or three because i'm making my own judgment about you know whether it's fair to allow in a public record that policy judgment that those records are presumed reliable and that they should be generally ignace of all absent evidence showing that they're not trustworthy and by the way there is no good evidence that this report is not trustworthy there are a multi year investigations by parties that have every incentive to oppose a finding of innocence as well when the jury in this case have understood that there were other third parties who  evaluated crile that led to the murder conviction other third parties who had evaluated that evidence and concluded that that evidence was not legally sufficient to support a conviction and the jury understood all of that even without the to the exoneration now that's not a fair statement because they didn't know that the conviction itself was overturned on the basis that movember as testimony at the first trial had been perjured but there is a far cry but the between saying that  basis to convict and saying that john smith is actually innocent and in order to circumstantially prove the misconduct or to corroborate the testimony from movember about what happened during that key interaction it is critical to know movember did not identify john smith because you'd actually seen him which is what the defendants argued during their closing argument he could not have identified him because not only was he not able to see the perpetrator john smith was not there he's not the one who did the shooting so the only logical explanation for how movember identifies the same person that the defendant admittedly already suspected the same wrong person is exactly what movember said which is that there was a suggestion and coersion during that  procedure and there's no dispute that if what movember says happened is true that he's proved his claim there's no dispute about that the entire case came down to which version of events is the jury going to credit and given that even defendants admit their whole argument is of course you can't let in this innocence evidence because it's going to prejudice us the jury is going to come to a different verdict that shows that the exclusion of the evidence is prejudicial which is and will necessitate provisional if you were allowed to all the witnesses themselves recant their testimony recant their identification from the lineup i mean in essence what you're arguing is you wanted this record to come in to corroborate the testimony of your witnesses at trial and the district court said i'm not going to allow this report and i'm going to allow you to introduce the evidence and the jury the jury heard your client say or agreed with your client's testimony because obviously the testimony from an accused that he didn't commit the crime when that's the only evidence offered to support that is not nearly as convincing it does not have nearly as much probative value as an independent evaluation from adverse parties who have every reason to dispute it who say we did it a multi year investigation and also it is not true that the district court said that we can introduce all evidence supporting innocence what she said was innocence is not relevant i'm not going to have you relive again the only evidence that came in on this point was the prior testimony which the l a p d l a d a california a g superior court all agreed was perjured which defendants argued for the truth which they're not precluded from doing but that's the evidence that they use novembers prior testimony and then there was limited testimony from john smith that he did not commit the crime you want to reserve i do yes thank you evidence and made the correct decision based on for zero three and i said in essence the court assumed that it was not hearsay evidence we're dealing with that it had already gotten past the eight zero three eight analysis a public record and then weighed the probative value versus the prejudice she didn't allow the plaintiff to argue it to use the term innocence similarly the defense was not able to use the term guilt i think there are different arguments going on here there's one argument about whether they can actually use certain words and then there's an argument about the admissibility of the document from the victim's compensation from the board when you say two or three are you saying that essence and part of the confusion i think came up because it was raised in different manners below as the case progressed and mischel a in the first motion in limine a plaintiff counsel asked for preclusion the facts of the defense could not  argue guilt and they had asked for collateral estoppel then in response to the defense motion in lemonade that the term innocence not be used they argued that it was relevant but it was not overly prejudicial and there was only one line mentioning the public records act eight zero three eight on the second day of trial plaintiff's counsel filed a supplemental brief asking for admission of the victim's compensation claim or decision under eight zero three eight and that's really the first time that that issue was raised squarely in the court i think it a good analogy is for example in internal affairs reports when a an agency like l a p d says a shooting was within policy for example that really never comes into evidence at trial but it's not because it's not a reliable public record of an agency that the agency is required to maintain in those cases the district court skips over that analysis and goes straight to for zero three because that's really the issue is it more probative or more prejudicial and in those cases that it doesn't come in because it's too prejudicial for the jury to hear that there's a finding that essentially usurp some of its decisions and so to in this case the core properly balanced and there are some comments that the judge made such as commenting on trustworthiness where we can infer that there was some thought process on that eight zero three eight  and guilt that with a strict for three analysis with you there we can debate whether that was correct or not but as for the report are you saying that the district court essentially contests are treated and said it's not judicial finding it's an agency that's essentially making a decision on the money and everyone conceded there was no hearing that was done and in the concessions that were done by the district attorney's office and l a p d it was that they had no faith in the verdict anymore after movember had said he committed perjury at the first trial to be clear they did not say they thought he was innocent there was no exoneration that occurred  here i don't think even plaintiff's counsel would have wanted the whole document to come into evidence because it talked about mr smith being given six hundred thirty five thousand dollars from the claimed board and it would open the door to the fact that he did try in superior court for the fourteenth eighty five point five factual innocence finding and that was denied i guess what you want us to affirm in this case right clearly ok so if we are if we're if we want to agree with you i'm trying to figure out what are you asking us to say are you asking us as it is to court correctly excluded the report under eight or three eight or the district or correctly excluded the report under four or three because for us it's a different analysis depending on which rule you think is in play here so which which is the which is the way we should look at this as to the report not the words the words i get about the report well the report honestly i think the court skipped to the crucial factors here and sort of assumed ok well even if it comes in under a public record it's too prejudicial to be admitted then we would for your view of the case and we would need to review the admissibility of report under four hundred three and not eight zero three eight correct but if you want to reach an alternate grounds i think there are indications in the record based on her comments about the trustworthiness that it was not a judicial finding that you could find on that basis so there's this case a state of things called beribboned which may limit our ability to do  that i was looking at this case and i was surprised that for the case holds but that does seem to be what it holds and it makes it tougher for us to do an alternative holding here i mean look i think you have a good i think you actually have a good argument that this well the court did let plaintiff the court let smith present alibi evidence suggest an alternative suspect the jury was read the b s finding that the conviction was vacated that love them but had testified falsely so there was substantial evidence admitted into trial that you know that this report would have been essentially cumulative and it would have been more prejudicial than probative to get into the multi page report about and the multiple layers of hearsay that it involved light from the l a district attorney's b s litigation unit was allowed to come in and testify about his investigation the number of witnesses he interviewed the lack of confidence in the verdict at that point and the l a p d witness abdulrahman came in and testified that he agreed that he no longer had confidence in the verdict and they conceded and that led to the to the conviction being overturned so all of this evidence was before the jury i think it's important to note also that there is no malicious prosecution claim so guilt and innocence were not required for the elements of any of the claims brought against the detectives here many more details about how he knew the guy from junior high school that he had run track that he was very fast runner that he had gotten medals things that were not information that the detectives even knew about should be your proof as there is a preponderance of the evidence that he did not commit the crime with which he is charged and convicted i mean that sounds to me very much like a factual finding by the board which would be admissible under the hearsay rule you characterize that as a legal conclusion which is not covered by the you see that as a legal conclusion while saying he didn't commit the crime you know it sounds  i suppose you could argue it's a factual finding but it's based it's based it's a conclusion really based on the fact that mr movember recanted his testimony and said that he had t estified falsely before so it necessarily implies some credibility determination about when he's telling the truth is it is he lying now was he lying then and so it's really a conclusion more akin to like an internal affairs investigation is making findings and those in the cases where those kind of investigations come in it's usually the the statement of the witness but not the conclusion that admissible into evidence and so i would compare it to that in addition the victim's compensation claim board it's a board that decides whether to grant persons money it's not a judicial there's not a judicial officer involved and so i would argue it's less trustworthy than for example the superior court which you know he was procedurally barred that was denied and then judge a said there was insufficient evidence to determine that he was innocent it was is that what judge o'connell was referring to it we are five and six where she talks about judge snags making no finding on factual innocence and then goes on to address the fact that she's been presented with no facts as to how the b c b reached that conclusion and she doesn't know whether or not witnesses were cross examined what went on there i'm reading from the top of page six and i'm not going to have any evidence of the victim compensation board given your proffer to me that looks like a reliability concern with regard to how that conclusion was reached and then she goes on on page six to move to the four or three and correct and that's where i indicated that the court could infer that there was an analysis of the trustworthiness and whether that was a proper finding that's intitled to the miss ability so the only the only judicial officer that consider this judge leg said that she didn't have enough to make a finding of factual innocence so the forty nine the fact that they forty nine hundred claymore and found that there was enough to award the money is different and not reliable in terms of eight zero three eight being admissible of a finding the jury had everything that plaintiff would have wanted to admit in terms of you know his claims that he did not commit the crime that that he wasn't there that will recanted all of the things that they would have liked to admit the cases that appellant cited to in their brief on innocence being relevant when you look at those actual cases they talk about for example d n a evidence coming in to show that someone's innocent and setting the backstage here if there had been d n a evidence plaintiff would have been allowed to presented a trial he was able to to present witnesses to show you know he wasn't there he testified he wasn't there he presented evidence of an alternative  suspect so how do you how do you respond your opponents argument you clearly very much did not want this report to come in you worried about its impact on your case and yet you now seem to be arguing that well even if it was wrongly excluded it doesn't matter it strikes me as a contradictory position how do you reconcile those two positions but just to be clear i'm arguing that was properly excluded  on several grounds but i understand that but if we were to disagree with that but a lot of the substance did come into evidence and i think that it could be a harmless error if it came in because some of those witnesses did testify in fact if whole report came in and we were entitled to get into the fact that he was awarded money and that this was not a judicial officer that made this determination it was a claim board and when he went to the superior court to get an a finding a factual innocence that was denied it could still be harmless error the fact that that report came in but it there's double layers of hearsay and there's reasons why the report was not trustworthy and it was more prejudicial than probative and i think that's why you can't plaintiffs counsel wants the report and initially argued for the close of effect because they want the jury to have this backdrop where they're told mr smith is innocent he was exonerated which is not factually the case here it's not that's not actually accurate to say he was exonerated and we looked high and low for any case where the victim's compensation claim board finding of innocence was admitted in a court and have not been able to find one decision where that was admitted but the reason they wanted so strongly this to come in is they believed it would color the jury's decision and then the detectives will not get a fair shot to explain what they did and have the jury evaluate whether they committed misconduct that the conviction or not and here the court did a proper balancing of letting the substantive testimony and through witnesses without you know given the judicial finding that might overly affect the the opposing counsel suggested that if mr smith that had d n a evidence were and other kinds of evidence of innocence that that would have been permitted to be admitted in this case that is not what the district court ruled with the district court ruled it was she was not merely excluding the terms innocence and guilty although she did regionally say that she specifically there was a quest request for clarification does that mean the underlying evidence can come in and she said no those are not the issues that this case you cannot allow that evidence and so for example saying hipaa like the da investigator who did this extensive investigation was not permitted to testify about his ultimate conclusions about innocence and i want to clear something up the l a p d and the l a initially at the time that they were letting mr smith out of prison where he'd been from one thousand years made a representation to the district court merely that there was no credible or corroborating evidence to support the conviction which is undeniably true because it was based solely as testimony subsequent to that there was extensive additional investigation and that is when the l a d a and the california attorney general specifically represented on top of that it's not just that we don't know what happened and we don't have a basis to keep this man in prison anymore is that we believe the factual finding he is actually innocent he did not commit this crime and that was what was presented originally to the district court and i'm excited to the superior court this is the time when there was the l a d a said specifically we believe that he has he has and can prove innocence however based on the change in the statute we don't think this is the proper forum we believe he can get a finding of innocence in the for the victim compensation board and so are we are requesting that you deny the finding here but he will get it in the victim compensation board and then the california attorney general submitted a thirty five page brief and sixty exhibits saying we think he's innocent and they gave this to the victim compensation board summarizes it it talks about how the does the da had conceded to the superior court that there with you could make a finding of innocence and then it says that the california attorney general had specifically conceded to the victim compensation board that  mr smith was entitled to a finding of innocence that this entire victim compensation board along with a trial brief was filed in the district court the i'm not sure i don't remember off the top of my head where but i believe that the the hay b s memorandum which was prepared by saint hill that was also is was in before the district court below and there was briefing on motions in limine a about whether the substance of that could come in there was also evidence before the district court of the time of summary judgment about the for example same headlights testimony about how skeptical they were how originally he you know because he's a career d a he's looking at a a a report that a if you don't what what does this have to do with what the officers knew and did at the time they investigated the murder what you're telling me is events that happen but twenty years after the crime was investigated the issue that the jury had to decide as i think the district court focused on was whether or not the officers acted in a reasonable fashion or whether they violated your client's constitutional right absolutely and as the court after court has held compelling evidence of innocence is relevant to a jury's a terminations of what happened and is this as the ninth circuit is held when in the original devereaux case it is unusual although we have in this case to have direct evidence a fabrication of evidence almost always you're going to have to prove it circumstantially because police officers don't usually get up on the stand and admit that they coerced a witness or they fabricated evidence so you're going to need circumstantial evidence and powerful circumstantial evidence but i thought the witness testified to that the witness who recanted the jury heard him say that the detectives leaned on me right he did but the most powerful corroborating evidence that would change the jury's evaluation there's no question that they were really want in a conclusion twenty years later by a different police detective i believe that witness when he says that is that what you are asking the district court to know it's not it is not merely a credibility finding about movember it is the result of a multi year investigation establishing innocence i have i'm just a little bit at a loss here i thought that the role of the i guess what i'm having the trouble with your argument is is that the report from the board is not what i think of as evidence it is certainly an analysis of evidence and it's an opinion on what the evidence is it's different then  recanting it's you know it would be akin to let's say the new york times did an exhaustive one year study of a criminal case and they wrote a series of articles saying how and and the opinion of all these reporters this guy in fact didn't do it how is how is this different than that new york times article scenario because the federal rules of evidence have specifically made that policy determination about whether this type of evidence is reliable enough that there should be a presumption that it's admissible but again how is that evidence that they think under it's under eight fact this report is someone's opinion maybe the correct opinion i'm not i'm not in any way discounting what the report the conclusion report came to but we do have case on the circuit that says conclusions legal fact you know it's an eyewitness is a factual testimony this is someone's analysis facts and they a pine so this that was answered specifically in the supreme by the supreme court in beach aircraft and it says just because it's could be characterize conclusion was inadmissible there are subsidiary findings of fact there's no question by both the victim compensation board and the heaviest investigation that particularly given the nine hour trial court limitations and also the difficulty in getting witnesses for example the confidential informant who refused to testify other people who cooperated with the investigation by the attorney general and the da who we could not get present in the court but there was a separate finding by the court that she actually was not going to permit in any evidence related other then she permitted mr smith to say that he didn't commit the crime and critically movember because he did not see who actually committed the crime he couldn't say that john smith was innocent all he could say was i didn't see it i