uncorroborated confession was the only of events that a crime was actually committed in this case that's the court is aware and twin care of cases from the supreme court in one nine hundred fifty four smith and author of the laws been very clear for a long time that an un understand you you sort of make this distinction between the what i will talk about as the act and the mental state by the act here is understand the crime this charge is the fault filling out before to purchase a much that's the allegation and in fact that's the conviction the jury fam so what we have here is a lot of corroboration that he made a statement and it was on right that that is you agree is well corroborated what's your questioning is that the third element that is the knowingly or that that part is what's not corroborate and the second element which is falsity the statements of the three elements this is in the jury instructions actually in the case case which is j h fifty five and fifty six there are three elements as the story was instructed the statement that he was the actual buyer in connection with the sale so the statement on the form the statement was fal so that our judge listed his three elements and we're we're alleging in our argument that both the second and third elements are uncorroborated and those are those are both mental states rights to the falsity is a little bit more than a you don't have to cry break the mental state that then that's the basic idea that comes out of opera's that you don't have to crop rape every element of the offense you agree with that right and so the question i've got and i was i'm really into a curious from your perspective so there's let's assume that i found that there was corroboration of the statement right element one as you describe it but there's corroboration of that that's sufficient but i accept at least for this question that there's no corroboration of the second and third right well what is that matter in the opera because we've corroborated the trustworthiness of the statement because he made the actual  before the court is not as the government would have it whether there was sufficient evidence to convict including sperling's admissions but whether there is sufficient independent independent evidence to corroborate those admissions that as he did appoint i mean that the government here i feel is bootstrapping using the confessions to corroborate the confessions which i don't think is appropriate under our so in that case the person again was caught with a gun and confessed to having used drugs and they hunted a canine that alerted on the call but there were  but even the canine alert was not enough to corroborate his confession to being a drug user because there are no actual drugs but because you don't have to act in that instance you don't have any aeration that he actually possessed or distributed whatever the chro i thought the district court gave contra factual sware such testimony might well be helpful they just didn't exist here i guess i want to push back a little bit on that particular characterization because i think that that makes a difference it's not for all in all circumstances for all purposes that such testimony wouldn't be admissible it just wouldn't be useful here because well for a couple reasons if it appears to it on its face it looks as though it does tend to at least intrude on in the province of the jury in determining facts but also it's a say and perhaps not very well i feel like to say that you might allow it just if somebody is severely mentally ill but not a case for someone's not it's just a democrats not but that isn't i think or at least that's not how i read it in the i'm not sure that that's how we but they don't that happened in this case it's the second half mindedness can split it doesn't it it has no i would not know quite what to make of that or how do you do once so i can see i'm sympathetic to the judge determination that that is potentially very confusing for you and i reached that conclusion because i found it very i'm not sure i would have understood quite how to factor that into an analysis so leaving aside the per se aspect of his ruling or not would like to emphasize that our primary complaint about the reasoning of the judge is that he hit he had legal and factual errors in his analysis but he did not analyze the actual basis of dr color testimony he thought he relied only on a certain kind of social research slate up in detail in our brief wasn't presented at the hearing and so in that sense the judge i think was just relying on and and i understand the courts are busy but relying on an analysis he had done previously instead of looking at the way that this testimony as proposed differed perhaps from just when he'd been offered before or that the court had been offered before which is one of the reasons that we think it was an abuse of discretion perhaps there's a way he could have analyzed the testimony that would have analyzed it as offered that he could have excluded and it wouldn't have been a special but this analysis didn't match the testimony offered so and long son in the litmus test is trustworthiness whether there was sufficient evidence in the record to corroborate the confession such that the confession could be deemed trustworthy here there were a number of facts independent of the confession that corroborated the trustworthiness of those statements one the defendant purchased who got us two guns are significant in that here you have an  we seem problematic to the defendant because during his confession during a statement to the to the officers to the a t f agents who had come to visit him at his home his mother's house sat on a table completely voluntary coercion no no entrapment type of questions anything anything to to see justice anything but voluntary explains that he bought one gun first went to the ra jammed went back later want to second that is demonstrably so weak we have a statement about two guns that is a provable life because the transaction for the two guns occurred at the same time he bought two guns at the same time and he lied about that that was an independent fact provable independently to he could not the difficulty that i have here is that it seems to me that it would have been a fairly easy matter for the government to get something from rhonda in court that incarcerated there could have been it could not have been that much of a challenge to get something other than to support the confession other than the fact that the compaction and it would clear that the corroborating evidence we're talking about here that it that it must be admissible so does duncan asked the question earlier about the hearsay statement that was admitted not for the truth right that this came from the informant who called earth not i'm not going to try to pronounce the name calling you right does it yeah but why so you know if we're thinking about two different ideas  question we're just simply trying to say is the confession itself reliable and so i get it that's not admitted for the truth of the matter arguably the four hundred four b you want to talk about it maybe that would allow  bolster the trustworthiness of the confession but i don't see anywhere when i look at the want of case law is op or telling us that the only corroborating circumstances you can look at are those that were both admit that we are using to consider this news why isn't it it was never the test of it in evidence the background for this your honour's is this is a murder investigation this this was not a gun purchase investigation and the source of that information the information being the guy who committed the murder want to get it from the surreal was not in a position to be used in our trial because of the deed to use that source commit murder trial so or to interview that person anything like that so that's why i'm saying that i gree with the legal proposition but we never attempted use a staple in that manner we felt we had the the fact of the purchase of two guns the fact that guns could not be produced and i disagree with your honor that that is not helpful in that there's only a few explanations for not having the guns one they were purchased for someone else there's also a criminal explanation which helps corroborate his statement that it was in fact criminal he went into an explanation of these guns were stole when he was asked who went well around the time of my birth when was that that was in november well did you report the police we asked did you talk to police know my mother did did you follow up no i've never followed up how do you know there were still well a month after they were probably still in there went to my closet and they were there why why did you wait a month my closet was messed up why was your closet messed up my dog messed up it became very comical this explanation of why and you go back to his original story over that was stolen he didn't come up with another reason he was able to explain it in the exact same way as he did first i'll be happy yes answer questions on the first issue of court has them i agree with your honor's current position that the judge or brady did not make a person a fight he went through a list of factors that is opinion might rise to the level of allowing this type of testimony much like in in the us vs below where you have mental health issues you might have contrary evidence issues the money trail d n a you might have purchasing the two guns in one transaction statements about to disappear to the guns didn't make allies and the second interview with with the a t f agents which par can i ask a like slightly odd question but it's one i thought about and since i think the sort of intercession question if if a court let in on falls confession testimony with that require us to rethink  polygraph prohibition so if once we go down this sort of or old and we entered into a world of introducing false confession evidence then could the government not respond by just as an being able to put on the friends and courts discuss that there's a broad range of analysis within the soft sciences the social sciences and they point out that on the one  but there doesn't seem to be any disagreement in the various decisions that yes you can create a per se rule that is just filed i think here one of the problems you see in the case of hall for example   cited twenty years in the twenty years since hall has been very little progress in terms of coming to a consensus either a legal consensus or a scientific consensus of where this testimony should l decisions they're very critical of the empirical analysis that was that is used by dr leo so among the scientists there is a wide disparity in terms of how they would structure of their testimony and their opinions and tomorrow but does that go to the question that we have to decide which is whether or not there's more i think i thought the whole point  second confession was consistent with first or under rule twenty not that's the procedural posture and stand it's an opera claim but it's still a sufficiency of the evidence claim and evidence that is not admitted for the truth of the matter asserted is not evidence of the truth of the matter asserted in the literal sense of that statement which is why it's not needed for the truth of the matter asserted there is no evidence of a homicide detective told holder that isn't needed for the truth because we have never had the ability to test that we have we i'll say me because it's not in the record and i was on trial the lie when you say that he lied about having two guns on at the same time that is part of the confession they only know that it's part of his statement that is a part of the confession that cannot solve all star his inability to produce the cuts they only know that because he said he did not get a search warrant this is one of these things leak and one of the other cases where follow up investigation by the police could have corroborated if he did he's are all part of his statements that they're trying to use or crockery statements and under  corroborate the confession as opposed to not possessing the guns the independent evidence would have been getting a search warrant searching the house and not finding the guns so that the test is corroborated evidence has to be substantial independent evidence is evidence from his statements themselves the other day about wouldn't be from the statement it would be from the receipt showing the guns were purchased on different occasions that's why i'm having a little but they're putting it together with his statement to show a la the part that they think it's corroborated is it's is intertwined with the statement the only independent evidence the form is not there's nothing sketchy about the form unless they're combining it with his confession that's corroborated the exact statements as admissions or confessions all of them are treated the same for purposes of this rule it's called which receives don't have to be crop rated any less than confessions or admissions which i think is a critical point of the government is over looking and trying to use statements that the good parts of the statement to corroborate the bad part of the this discussion it if you go back to my drug example where i'm on the street and they catch me with a bag of marijuana  i go in and i confess that i intend to distribute this marijuana they charge me with a forty one pm do you agree that my and that's all the evidence goes i got a marijuana even if it's a small