three before the trial started before a juror was sworn before any evidence was heard and before in the language of rule fifty plaintiffs had been fully heard on the issue or heard it all on the issue of qualified immunity plaintiff's evidence was not presented at all hence the motion should have been denied subject of course to raising it after plaintiff had presented his evidence which in the words of the actions defendants in the instant case contend that a district court may enter judgment as a matter of law at any time they have no authority for that position while subsection two of rule fifty  one of the questions that occurred to me is that was a jones act seaman that claims look and fall does that make it difference that we're dealing with an issue qualified immunity that the supreme court has told us on more than one all at the earliest possible instance in civil litigation because it is opposed to an affirmative defense a complete defense and that the the officers need not suffer the indignities of having to stand trial if they have a legitimate claim of you understand i don't think it makes any difference at all for purposes of rule fifty there were a number of procedural  motions that could have been raised by the defendants had they wished to bring the matter of qualified immunity to the court's attention for a resolution or potential resolution before the first before the jury was to be sworn and they failed to do that could have brought a motion the dismissal on likely that would have resulted in anything in their favor they could have brought a summary a summary judgment motion in a timely way they didn't they could have asked the court for permission to bring a summary judgment motion even after the deadline set by the district court and they didn't do that although they did ask this report to bring a summary judgment motion on a collateral stoppel issue but not that and so you know i don't think it makes a difference in this case because the timing of the procedurally correct pretrial motion for deciding or considering the issue of qualified immunity was entirely within the defendant's purview they could have done it at a  appropriate time they did but more importantly a summary judgment motion which would have tendered the issue would have been on the basis of evidence and they would have had to either produce evidence or point to something in the record showing the absence of evidence deadlines and so on had passed then there was a flurry of deposition activity expert witnesses by both sides then there were the typical rule sixteen pleading that were filed basically summarizing the contentions of the party listing the witnesses and what they would testify to and there was a motion filed by the city on the morning that you thought the trial was going to start but it turned out that they'd of to be in the next part continuance of the trial was actually not going to start until a week later so am i correct in assuming that judge klausner had read the file in preparation for the start of the file and looked at the summary of the evidence that was going to be approved by the plaintiff and the defense and then in response to the city's rule fifty motion decided that there might be a serious question as to whether you could meet your burden of proof  sure about one part of that i don't know what your class not considered or looked at in anticipation of the trial and there were a flurry of motions in limine that were also decided on what was supposed to be the first day of trial  what judge closer actually considered or looked at as far as we can tell and so far is all opinion is concerned only pointed to the worth of the motion and to the opposition to the rule fifty motion that he had been timely filed  to be the first day of jury selection he said he was kind of tentative about whether he wanted a response and didn't want a response and said we could fire want if we wanted to and we did find one to which he didn't want to do because he had a very packed trial schedule and he told us that if we continue to the week we were going to be facing two other trials that he had committed to try the week that he was going to continue with you what was your estimate of the credible once was oak what was silent in terms of devereaux in a number of other cases but that the motion under rule fifty had to be granted because he did not see any evidence in the record to support the theory the plane it's intended to then what and that's what prompted my earlier question because i'm wondering what is it that you were looking at in the only thing i could find in the court file was was nothing else he could have been looking at and i'm not sure based on what he said from her in his or ruling that he was even looking at the rule sixteen pleadings i do know that he was looking at mr macquarie's prior convictions because he mentioned and i do know that he reached the conclusion somehow that the rule fifty motion which was a summary judgment motion had to be granted because quote the court finds at this time there has been no such evidence presented and that was evidence of fabrication or using evidence that they knew was false to charge an innocent man so you know it seems to me that there can't be any basis for this court to sustain a rule fifty motion a trial motion that the advisory committee said has to be done after evidence is presented  just don't believe that witness then even and the theory is found in your closet or acknowledge the theory was sound that the disputed facts quote should have been submitted to the jury even if qualified immunity from suit was an issue issues of credibility belong to the trier of fact the seventh amendment to the constitution so requires i mean it may be that at the end of our presentation of our direct evidence the district judge will entertain a rule fifty motion again but then there will be an evidentiary record on which to rule and there is no evidence for the record in this case to rule on rule fifty or even  and have the innocent man arrested was constitutionally viable this court another court had made that clear so the only other question is whether it was clearly established law at the time of the can't use the will fifty motion to basically invade work product and how we were going to produce how we were going where the evidence is there every speck the body has to depositions everybody has the documents you know how that's presented and what inferences we're going to ask the jury to draw not the oral argument that led to cleanse the problem and i was hoping that the parties would have given us the full transcript and you know what we intended to and i'm just not sure why that is but nevertheless there was a discussion and then he had to decide whether there was any evidence presented that it wasn't clearly established as a one nine hundred eighty eight and that nobody has ever argued in this case that it was not that rule of law on qualified i mean it was not clearly established in one thousand eight collected at the scene and his confession that confirmed in virtually every single respect all the evidence that had been gathered from the victim immediately after the crime and from the victim's  brother immediately after the crime and from purported eye witness immediately after the crime that contradicted completely he was that was collected six eight weeks later and ten weeks later from the victim in all this you know this was this was evidence that would have been presented in a summary fashion it wouldn't even have increased enhanced or lengthen the trial by any material issue and it seems to me and we never did argue the prejudice problem to the district judge so the balancing that the district judge did didn't include that i mean that the judge had simply said that it was not relevant because it was in two thousand and one and not nine hundred eighty eight but the evidence was highly probative and can and corroborated the all of the early to all of the early  decided whether whatever the state of the record was and anything and i'm investigating records that whatever information was supplied was not susceptible to the conclusions that attended classes designed specifically to training them how to elicit information from from from child witnesses and evidence that will show that they understood in one thousand and eighty eight that the first evidence obtained from the first interview the first evidence is the most reliable evidence so we're going to have experts say that that's what they were taught and that's the state itself the expert yes i know but but but but the experts are going to say that that that that evidence is highly reliable and here we have cooperation of the experts evidence that in fact it is highly reliable and here is the guy did it well that is in every respect the evidence that the young are going to get is that the child get another child in another witness case so corroborates the expert testimony and also supports the testimony i look this is a national identification which the defense will try to undercut they're going to say they're going to have witnesses that say oh no and what we are relying on is the portion of the rule fifty motion was particularly appropriate in this situation particularly in light of the wollongong versus the u s immigration and naturalization service from the circuit which was decided this past december and it goes into the tension between qualified immunity the early had to look at what it had before do you agree with that yes absolutely and what it had before it was a description of a child which you know a reasonable person would have thought that the technique and the interview of the child which result unusual to have disparity in initial descriptions however we then follow this up where two hundred views in the hospital with a photo six pack as i believe it is called there are witnesses there when the police officer is interviewing this six year old little girl  and she says in front of the public defender who defended mr make cheri i chose the wrong person because i was afraid and the real person she identifies as was to make sure then w of the grandmother's house was so detailed that she wanted to know who's been in my house and even to the blue sheets well when that happens and we have a record where as i think we clear the police officer been a constitutional right to have a particular manner or technique or method in which ication and the way in which is identification came about and if you then apply the brawl which says we also persuaded however that there is no constitutional due process right to have child witnesses and a child sex abuse investigation interviewed in a particular manner or to have the investigation carried out a particular way you've been around long enough to know exactly why this plan is necessary and then the other point devereaux and that's the point that i raise and ask you about and if it's thank you what do we do about it well it is certainly a point that is there that is one of the things that they're complaining about but the problem that the plaintiffs have in this situation is in having had to labor through the rule sixteen in putting all the pretrial things together there's no simple task it is requires great detail requires that you put in the facts not just a brief summary of the witnesses what concern that maybe you will fifty motion well i believe so your honor because  amendment to the rule when you apply that rule to our situation coupled with the public policy or the policy rather that is a tach to  qualified immunity there's no doubt here that the use of the rule as judge kosner employed in this situation was correct that that's a really a case two is that any time any means also has been fully heard and that isn't what the rule says nor does the advisory committee comment suggests that  i don't believe that it requires that there be any hearing that there be any evidence submitted or the trial has to even says well the evidentiary phase of trial starting decision with respect a specially qualified immunity well except in this case as as the questions from judge fair point out in order to determine qualified immunity you have to consider the evidence with regard to the actual investigation that was conducted and i'm the concern i have here is a procedural one that if the court was really intending to convert the rule fifty motion into a rule fifty six motion which he could have done wasn't it incumbent upon the court to give notice to the plaintiff that that's what he intended to do so that rather than simply waffling about well maybe i need a response in opposition i mean you know he should have said to what mr borenstein i think that the city may have a good point here and i'm going to treat this as a summary judgment motion in your opposition and you better lay out the evidence that you have to defeat a motion for judgment on qualified immunity and i mean i suppose he could still do that grant mr borenstein the relief that he's requesting and send it back we don't have to send it back to try and send it back for such for the proceedings as a district court  trying to decide based upon all the guidelines that have been set forth by the u s supreme court and what he had before him and if you have an issue it is much like a summary judgment and there is a lot of the case law that deals with qualified immunity says this that if you have any question about disputed facts what you do is you assume the facts most favorable to the plaintiff now under the circumstances he had the pleadings the pretrial matters well before him rule fifty six motion will do that but were the case was how is this that you can make the decision on qualified immunity before going to ever does it entry stage or trial that's a middle of the plaintiff's case and i think i saw a case that if you can do it at the close of the opening statement although that would give them pause but i've never seen one before the first well that i think is because in most the cases including answering the motion wasn't made until after there had been some evidence introduced now if you play this case i think right now if we don't have a factual situation or any case it's going up on appeal where nobody has done that until that point in time taking into consideration the policy issues that we're dealing with on qualified immunity i mean i think that's the whole point of this matter and you know as a practitioner i think if i've come up with a process and procedure just because nobody else has thought of using it and it is permissible i don't think it's a great step for the night circuit to say know i don't know and there's not nothing in the record that says that judge clouds are actually reviewing the pretrial papers before he made a decision as i noted that the oral opinion that he gave doesn't refer to them at all but you know it's just a glimpse by by counsel underlies our point your evidence respects here in dispute there are facts that need to be resolved not so much just because they're in dispute but at a trial where a jury can look at the witnesses the last point there was a point that we raised in our in our brief and i think that the record is so clear that judge klausner has prejudged this case he has decided that the only relevant fact here was the prior conviction and not and didn't even promote the introduction of evidence that shows how the prior conviction actually supports an inference of fabricated evidence and it seems to me under this this the facts of this case the arb