to keep your voices up when you argue th confrontation clause issue and this case comes down to whether that's prior potentially a false allegation of sexual assault is relevant enough and important enough to the defense to outweigh the state's interest in keeping it out the kentucky supreme court was objective lee relevant it was essential to mr genesis defense and rd the commonwealth counter argument is based on an inconsistent or an incorrect reading of the circuit and supreme court precedent in this case there was sufficient evidence from w true the kentucky supreme court itself noted two additional points that are relevant to the likely hood of falsity of this prior allegation the kentucky supreme court recognized that the child had a lively imagination and fact the investigator noted in the report that as she had bizarre and imaginary comments during the interview she hadn't made it made statements including the fact that her sister turned into a ghost at night the allegations here were simply impossible on their face and included such bizarre statements as this for our purposes can be not just fine but also being confuse or misunderstanding the point is that the alleged victim in this case made a previous allegation in all likelihood was not true let's assume you're right about all that why isn't boggs dispositive here and i know you take issue with box in your brief but it's still binding precedent over court your honor it is a case about when about the court being able to limit the extent of cross examination when it was just repetitive and like i don't know that it was repetitive in fact the bogs incident right was one month before he made a false allegation and so it seems to me that's much different than a toddler making a false allegation when there are five or six and then when there are a lab and making a completely different allegation against someone completely different i mean that's separated by six years they've lived twice their life at this point five year olds are much different than eleven year olds it seems to go to general credibility and if it goes to general credibility it that evidence of the prior accusation was just more proof that that she was lying about this allegation so that the defense had already had substantial opportunity to call her credibility and question isn't that your theory here that because the toddler made one up because the child made one up as a toddler she made one up as a child of defense was that she had fabricated this current allegation at the behest of her older sister and we thought to introduce the evidence of the previous allegation as evidence of motive or bias because she had made a similar accusation have virtually no other way to defend himself and the key point that the st circuit made and that case was that when there are factual similarities between the two accusations you certain just dismiss them as general credibility evidence is that it is considerably more powerful than that because it suggests a mood but here it has to be clearer there has to be i understand you're pointing to a st circuit case but what's not clear to me is i'm just having a hard time disentangle owing our analysis and bogs and the super and how we can find it post in a post bogs world where we have to assume it's right that it violates the standards under add does that make sense as my question makes sense in other words it's got to be clear that no reasonable read it to you can because you know it bogs as general credibility no protection by us motive protection that's why you're trying to shoehorn this which makes perfect sense it's a great tactical strategy in the bias were completely absolute with no exceptions this case would be very easily decided but that's not the case however this court does not need to address this case on the merits because of the clear procedural bar that exists that was recognized by both the kentucky supreme court and the magistrate judge below the kentucky supreme court recognized this supreme court in their opinion page four hundred and seventy six they stated that dennis contends that even if he is not entitled under the kentucky rules of evidence he is entitled to do so under the th amendments confrontation clause this argument was not presented to the trial court and in any event in light of their previous discussion on the merits it is patently without merit and that in your view a holding by the kentucky supreme court relying on procedural default yes it really pressed their decision on an adequate independent state ground which is the kentucky rules of evidence carry for twelve and although the supreme court went into a long discussion under of this this case under the th amendment if there is an adequate state procedural bar that is dispositive issue what so a i may have just missed it but the only reference to that that i saw is what you just read i don't remember the court saying and therefore this is barred or something like that to which we could refer to say you know clearly they rested a on an adequate and independent state ground in the magistrate judge acknowledged that there was a procedural bar as well well but the magistrate judge was looking at what the kentucky supreme court did right and i'm just trying to figure out how that really qualifies as a procedural bar in cases where in the  land breaks versus singletary what plan breaks stands for is the proposition that a case can be decided on the merits and a procedural bar in a court can deny the petition based on either the merits or the procedural bar but what it does not stand for is the proposition that a that this court can grant the petition if the procedural bar also exists and based on what the supreme court held that this claim was not raised before the trial court and therefore it's not we're going to analyze it on the merits but the fact that it was not raised before the trial court means that under the standard of a de this court cannot reach that issue acknowledge that davis makes two distinctions of her but david goes and say general credibility no protection there is no supreme court case i can find that says that in clearly under the original meaning of the confrontation clause that can't be right so what do we do with that well the fact that there's no supreme court case directly on point would mean that any decision that says that the six women rights confrontation is completely absolute with no exceptions that is clearly that would be clearly contrary to what the supreme court has that's what they're asking for i mean what they're asking for is that general credibility they make a bias argument but what they're asking for is not unreasonable that general credibility is in compas within the confrontation clause it is but that a general just a general credibility attack to say that someone is a liar is not has never been has a channel credibility i mean this is this case deals with children makes it a little bit different and isn't it very relevant to the question whether this is a child who understands what a sexual assault is who who or has has trouble distinguishing reality dreams in this particular context while that may be relevant the issue is would it be barred under the state rule and if it's if it's prior evidence of sexual assault unless it's demonstrably false then the state rules would prohibit it the issue is is that on a reasonable and based on supreme court precedent it's not unreasonable the supreme court has even extended further protections to minors who are victims of sexual assault and that's one thing to keep in mind in this case this is a this is a case involving a minor this isn't a case an issue of an allegation of sexual assault made by an adult against another adult this case involves a minor and the supreme court has extended further protections which may infringe on a defendant  confrontation clause permits the state to say that this type of evidence can't come in yet the issue is whether it's an unreasonable application and various restrictions that have been placed right to confrontation the issue is whether the the state the state rules would be greater than the the restriction on the defendant's right nothing in the soup in supreme court precedent has held that this is an unreasonable application and based on what this court has to decide under the episode this is not reasonable what what was the harm the harm is that it was it may not have been a false allegation what what this court's precedents have said is in order to get the state rule if it serves the purpose of present preventing und prejudice to witnesses it can be restricted on cross examination if this prior assault or this prior allegation actually did occur as the child said it did what would be more embarrassing to a minor victim of a sexual assault than be confronted with another prior sexual assault that nobody believed and that's why demonstrably false is an appropriate standard because in order in order to introduce it it must be shown that it isn't true and that that would that would be a reasonable limit  the investigator didn't think it had actually happened well it was the investigator believed it was unsubstantiated i don't know that their findings were that it didn't actually happen and just because  you know as as as this would have to show what what would be permissible would be to show bias in other words her her motive to testify falsely not necessarily the false testimony and what what's magic i know the cases we've d heard to it but why are those elements or those factors magic and this notion that the witness doesn't understand what a real sexual assault is i mean why isn't that protected the same way the bias or mode of those those questions can be i believe can be properly a deuced on cross examination without getting into prior false allegations you could ask a child witness on cross examination where should this child would define a sexual assault i don't think you have to get into you made a prior false allegation so how do you know what it is i believe that those can be explored on cross examination getting into prior without getting into prior alley accusations so this is certainly the strongest and the most persuasive evidence of that it could be it could be but that doesn't necessarily mean that it comes in there are other ways to show bias to yes there are other ways to show bias and what that what the case is that if they've shown that it placed or that the scream cord have said those came in in the in camera hearing that the trial court had after the st appeal i believe some of this came from the all of it came from the investigator the c h f s investigators actually came in in the trial or if it was a matter for the in camera hearing and i don't know if it's odd that we don't have a record the the record can be made available i believe in this case it's all on v h s tape so it can be made available if if the court would like the supreme court has never specifically allowed a particular attacks on credibility it all has to go to to bias what they've established as a general rule that is applied to general rule that is applied to specific facts of the case for example in the white case as cited by petitioner which was the st circuit the facts of the prior accusations were so similar to the present ones that they held that it was it was a violation of the th amendment so when you have a general rule as applied to specific facts that implies that there is leeway given to the state courts to determine if that general rule applies to the to specific facts of the case and that's what the what the kentucky supreme court and the district court have done here can you ever have a reasonable work with haitian of this type of rule i would i would assume you could i can't at the moment think of something that would it would be on reasonable i mean if the argument is that the supreme court has never gotten that specific about this and that it's a it's a case by case right issue so how can you ever have another reasonable application i mean if it if it's would be similar to  similar to to an existing case what has to be in i would think that would be in the supreme court i would think that would be an on reasonable application based on the facts of the case based on the facts of this case this is not an unreasonable application by either the kentucky supreme court or the the district court like to talk with a little bit about the judge what you asked specifically a question about whether there has been finding of of an unreasonable interpretation of supreme court precedent and why investors are actually both examples of at the cases where there was such a finding and that's part of the reason why we find it to be such an important case under three factors of reasonable probability of a prior accusation factual similarities between the prior accusations and the fact that there is virtually no other way for the similar so the similarity between the two accusations primarily is that they were both against father figures at a time when there was u ncertainty and confusion in a changing household and just to go over to the timeline that you mentioned judge the part the accusation that she made against her father was in two thousand and one and at the dentist actually moved into the said it happened back then she said it happened back then but we believe that this shows that there's sort of the history of whether it's confusion or uncertainty or struggling with dealing with family dynamics there is in some way there that points to the father figure in the home presenting a difficulty we also believe the importance of asking her goes to the question of how her sister would be implicated because her original accusation in two thousand and  used her sister back in two thousand and one when she was how will fire a six years old how does have does that affect the credibility of the later allegation even if her sister was involved in the scene causing the allegation that mean what what's the logical inference that makes that fact  so we believe that we're in state to be asked whether she stood by that accusation against her sister a response either yes or no would give the jury plenty to think about with what would give the jury plenty to think about and would and would  because she would have admitted that the accusation was false you don't have to live with her answer i'm sorry or don't you have to live with her answer i mean is it air so if she says no you live with the answer if she says no than than that would have been the answer that that that we know i understand but that's it so if she said did your sister do you intend to use experience of evidence to that point to prove it up  explain to me the trial strategy so she gets on the stand you say did you accuse your sister sexual assault now what do you do then you would follow up and ask her then do you stand by the prior accusation that you made so you do you want to get into the prior accusation no matter what happens with that answer yet ok and if she answered yes i thought you said one question so i was just trying to understand go ahead  and then if she answered yes that she stood by the prior accusation then there would be a question of her relationship with her sister and then the defense would hopefully have the opportunity to question l a about that accusation but isn't that the side trial the district their trial courts are trying to avoid that the supreme court said perfectly permissible and doesn't this shouldn't this worry us with rape shield laws even the now we're getting into whether some allegation years before is going to be used to essentially dissuade people from testifying about sexual assault so there is an outer limit to the approach that way i would recommend there's another st circuit case where there's the defendant tries to bring bring in false accusations against him from other members of the family and we believe that that would be a clear example i mean one had a pattern of false accusations that was occurring in the years leading up to the allegation and by the same people gets multiple people right i mean wasn't there that pattern that distinguishable here i recognize you're trying to take this crime and say hey this lasted for a long time so it's up it's kind of a pattern but really it's not there to kind of isolated events and she doesn't make this these allegations till five years later and the government  evidence of these allegations so i mean they seem materially distinguishable i think those are important arguments that would be worth a jury considering i think there's a reasonable back and forth about the importance of that evidence but we believe that that's something that the jury o opportunity to consider both sides whereas the commonwealth didn't want that conversation to happen i'd also like to talk a little bit about the procedural bar  that the independent adequate state grounds requirement precludes a finding of the fall when the decision the state's decision rests primarily on or is in or of a woman with federal law and the state supreme court decision