the prosecutor's case against rose was misleading to the point of being false rose couldn't defend himself because he was arbitrarily prevented from introducing evidence that was necessary to rebut these allegations rose's trial violated well established principles of due process and the court should grant the read so that it was to have a fair trial that the pattern of misleading evidence in the preclusion the defense applies to both of the major categories of the evidence that was introduced against throws at his trial the accusations of the children and mr rose's own statements and i want to address both in the time that i have because both are important and i'd like to start with the accusations of the children which is the first ground we raised in the complaint which is the uncertified issue the court indicated that they wish to discuss at this hearing  the central figure in this case there are multiple children who made accusations against mr rose but the central figure was a child who we refer to as da throughout the briefing in this case she was the first child who accused mr rosier at least told an adult about this who got the investigation rolling it turned out that before she'd ever met mr rose she had been abused by her own father the claims that she made against jeff rose as they came out of the trial were demonstrably false for example she claimed that she had been overread as house between fifty and one hundred times and that she had been abused on at least twenty separate occasions but according to all the other evidence including her own mother she'd only been over at that house three or four times the jury acquitted mr rose of all counts involving d n a however it also came out at the trial the d a had influenced other children in particular she had claimed that she saw mr rose molest other children who were regularly staying over at the house and she stated that she had discussed these allegations or these proport events with these children before any adults that ever learned about this and that in her words they were exchanging stories to help them remember before the second trial mr rose represented himself at this first trial where he was acquitted or  to show was either false or extremely unlikely because of the timing of it they hung on most of the charges involving the other two girls and the second trial though the jury didn't hear we've heard almost nothing about da were z b the prosecution was allowed to present the case as if a c and c c were the only two kids involved with us and in doing so it pretty presented the case in a fundamentally misleading and unfair fashion that the prosecutor was able to exploit for example one of the issues here was a lack of corroboration for any of these claims and that the prosecutor's argument was well these these kids these two remaining kids had no reason to  lie or no reason to make false statements well there was a reason that everybody knew about from the first trial but mr rose wasn't allowed to go into that there was a substantial delay in reporting here the sleep overs began in one nine hundred ninety nine the accusations came out to the adults in july of two thousand and two the prosecutor's argument was well there was no way these kids were going to discuss this with anyone else but in fact from da the jury could have learned that they were discussing it amongst themselves for quite some time before the second trial the defense had noticed an expert named dr esplin who was a forensic child psychologist who is an expert on child suggestibility who could have talked about how all these factors that the children talking with each other and also the way that they were interviewed could have created unique issues of suggestibility could explain why children were saying things that were not true and rebutted the prosecutor's main  point the state courts ruling was essentially that all this you know the b b b evidence of the other children was more prejudicial than probative on its face that ruling doesn't make sense as a da is the central figure here having a trial without her would be like staging a production of hamlet without having hamlet in it there's just no fair way you can present the evidence even more to the point everybody recognized the da was important because the prosecutor was allowed to admit her testimony at the first trial when they thought that this context would be helpful to them i've gone through my briefings sort of the different due process cases that are established by the supreme court but the one i'd start with really is washington versus texas which establishes that a state rule is arbitrary when there's a double standard involved and that's exactly what's happening here in nevada law let's prosecutors bring in evidence of other accusations to corroborate the credibility and for numerous other purposes under no that is equivalent to four hundred four b and it did do that at rose's first trial but at the second trial when rose's attorneys realized that this was helpful to him and wanted to do exactly the same thing all the sudden they couldn't do it that's exactly the same constitutional violation that the supreme court recognized in washington versus texas and that reason alone is a basis to grant the read so that mr rose can have a fair trial according to courts where they'll have to have an opportunity to brief the issue after the argument so i thought that point i certainly made they should have a chance to address it and i would have a chance to reply under the court's order but what i would ask the court to do is to c away on the issue because it is at least debatable but then to grant relief because the way this evidence was presented was clearly in violation of well established constitutional argument and th it but the what the court state courts always said was more prejudicial than probative unfair prejudice waste of time and so forth and again even if there were any merit to that argument and i would say there is not there still is this double standard issue because all of this was perfectly fine for the prosecutor to get into at the first trial when the prosecutor thought that this context would help them good because those those charges were still in the case i mean he could bring in evidence about d n a because da was one of the purported victims the jury acquitted so at trial number two d a is not one of the ported victims the subject of the charges so could this day have brought in allegations of misconduct with regarding still other children in the first trial even if they're on charge there are a number of nevada cases and i go through them in the briefing i think it's on page fifty six or fifty seven a where nevada law allows you to do just that i mean it would be strange if you know rose would be prejudiced by the fact that he was acquitted of these charges of the first trial i want to make clear i'm not necessarily saying that the defense had a right to bring in the fact of the acquittals that may present a different issue to what we're talking about is the full context of the allegations that's necessary to explain what happened here or real problem may be that under after you've got to find a supreme court case it's close enough and even if we think that something was really outrageous we're still locked into and here it's hard to it's hard to it seems to me from his perspective it's hard to put on a meaningful defense when imprudent have the entire context of the situation in front of the which is crane versus kentucky which talks about the right to bring in the full context of evidence even if it meets the threshold level of admissibility that's the crux of the confession or you're allowed to explain the context of the defendant correct in that in that case the lower court ruled well i find the statement voluntary so that if she's decided so you can argue in front of the jury but the supreme court said no i mean that's just a threshold determination you still get to argue the issue and that is i think what's fundamentally wrong with the way that these statements are admitted at trial i mean in the briefing we do raise this voluntariness issue how there should have been this threshold determination made that the statements were voluntary and that didn't happen because the court never completed this jackson be danno hearing that it started but even if we agree that there isn't a threshold voluntariness issue mr rose still had a well established right to bring in the full context of these statements that he may and just as there was no way to talk about the children's allegations without mentioning d n a there was no way to talk about what mr rose said to gordon moore without bringing up the fact that this involved a polygraph specifically mr moore claimed that he did a polygraph with  with mr rose and i say claimed reported because there is substantial reason to believe that this was all root of a polygraph and the and the dialogue leading up to the statements made by mr rose that mr rose now argues look i had to say something to him this is what i came up with the time that it wasn't true and so you're arguing the context of that needed to be offered up to the jury as well so that the statements can be put into context exactly he couldn't do that because he couldn't bring up the most important fact which is that i mean more you know says ok i know you flunked this polygraph i know therefore you must have touched a child's  you're a child molester or maybe you did just by accident unless you tell me is the latter i'm going to assume that was the former and it was in that context and with a lot of suggestibility and this went on for pages and pages eventually got him to make these statements which everybody now agrees aren't true so that's the context that mr rose needed to present to fairly explain all this and that's what he was prevented from doing i would thank you morning on starting with the voluntariness of mr rose's statements to investigator more mr rose's main argument against and you heard again this morning against admission of those statements is that this was a quote nothing more than a ruse to get roast himself at work this is your day again this morning and it was in the opening brief on page seventeen the problem with that is that courts regularly allow detectives to participate in all kinds of dreams as we see them on t v all the time which doesn't make it right but it happens in real life two in the people vs mays case the california case courts famously upheld the conviction where detectives gave a murder suspect a completely fake lie detector test although most of those cases produce confessions i can't put into context why i said what i said which i now deny was the truth in which nobody the state's not charging him with what it is they extracted or mr moore extracted from this dialogue the state appears to be offering this up not as a confession but as a way to weaken the credibility of of mr rose but the problem remains that if the context of how he came to say those statements isn't put in front of the jury and the district court kind of truncated the hearing or the whatever the trial court t hearing at which those statements were being examined out of what apparent was exasperate not having the tapes but in the context where rose never got to cross examine more isn't there something missing well you're on a couple responses to that so i would do on top of the hearing such but the people versus mays case is actually right on point from the from the california courts because it is actually a case where somebody was accused of murdering somebody to jack in the box and they thought they had video some video of the person being there and the person said i wasn't there at all and then after they gave me a completely fake lie detector test and said we think you fell on like i don't think that this was a complete test but there they conceded it was just a completely it was a total ruse and after the texas did that then the person came said ok i was there but i didn't murder the person so again it wasn't a confession it was just a changing of the story just like here and then the california courts upheld it and then this court in a decision by coerced this is eight eight zero seven f three d nine sixty eight no four just as in mays i think that's probably enough to get a case certified obviously that's that's standard meets that requirement is certified but it's it actually after a partial hearing and that's not actually accurate your honor i think first of all there were three hearings there was there was three hearings and only the third hearing that roast focuses on it in his in his there was actually three hearings rose  well i'm sorry of this august address that what with regard to your concern about and we heard again as this morning rose seems to be almost making a facial attack on the ability to use these kind of statements that are there gotten in the context of a lie detector examination because he says i can't you can't ever give the context because just like here a defendant is never going to want to allow that context to come out the problem with that is as i think of i mean i don't understand he he can't succeed on a facial attack and he hasn't shown how anything here in this he hasn't shown how the how the nevada court's judgment which is a very factual judgment of architecture lies judgment than about a courts of have we're hearing roe say oh i wanted them to hear that whole context i wanted to hear that or i couldn't provide that context and but it at that obviously at the trial rose was very clear if you look at excerpts the record twelve or one rose emphasized in the brief to the court the huge potential prejudice of the jury learned that mr rose took a lie detector examination at the first trial he was actually the court the judge said listen if you if you want to bring in that context you can it's up to you to open the door but it's up you get a choice as to where they want to well according to according to the testimony at the second dental hearing what the what the problem what mr moore said is i had told him that some of the results seem to indicate that you were being deceptive was what mr of mr moore said he was going to testify about at the second general hearing and so let me let me describe these three hearings because i do want to i do want to respond that your honor the just this idea that he didn't get here what happened was at the first trial they're having the trial remember the roses represent himself to send out the jury and rowe says i want to i want to make a motion to not have these statements come in and there's a hearing at the first trial of his experts a record ten twenty three around those pages where the judge in the first trial discusses it and they have are you back and forth and they then they  they the judge denies his motion to suppress goes forward roast testifies i mean more testifies rose has an opportunity to cross examine more then as you all know that the he was acquitted of the charges on the two girls and the other the other two girls a i want you to suppress those statements again because of their involuntary they have a significant hearing in front of the same district court judges out over the first trial and the district court judge after the hearing says i don't want to i'm not going to  suppress the statements because i do i think they were voluntary part of the reason is because they're collaborated by this detective importantly rosa's counsel times i want to have an evidentiary hearing and the judge remember this is the judge's sat through the whole really that's what rose is argument devolves to is that i needed to dyno requires me to be able to have an evidentiary hearing but again there is no clear supreme court or to the says you have to have an evidentiary hearing especially in circumstances like this where the judge actually heard all the dispute you mean during that during from this testimony that i gave him or i don't think anybody this was never used by the prosecution as a confession that's why that's why rose points out that nobody disagreed these forced stories were fake it's the same it's basically the point was detect he changed his story he he gave divergent testimony that was the point of this so nobody was saying that he actually did the two things that he ended up saying he did that was it wasn't presented to the jury that way so i don't i don't see i think i saw this a confession you're on the road the prosecutor crane gives us a rule saying that if an inch is allowed to put in the context of a confession would that rule apply here even though this wasn't as you describe it a confession i unknown number one it wasn't a confession but number two i don't think the rule would apply here because it's just to generalize you know express anger at but i guess i'm if you layer on epa again you've got at least three of the states i didn't do a conference of research to see if more of it i'm sure more the states in the ninth circuit probably allowed three of them california nevada oregon all allow this sort of testimony and of course u s foreign court has never said you can't the question i'm posing is not about allowing the testimony either because you there's a ruse or because to whether it's it's voluntary the additional argument that being is being made is that this is presented to the jury without letting me have a con the opportunity given the full context the the statements leave out a whole lot of the dialogue leading up to me making the statements that are being offered up as evidence against me and i've got the right to put it all into context now rosa's argued that crane is the supreme court case that gives him the right to put into the context and i'm trying to see if if you're distinguishing crain because this wasn't actually a confession i think there have to be one of two tests your honor one that one tested b you just can't ever bring this stuff in because you because a defendant just like mr rose is never going to want to get into that mr rose is keep in mind as i've said excerpts are record ten twenty five excerpts record twelve o one mr rose was given an opportunity to bring in this context if you want to you know he pretends like he wanted to bring in a context you never want to bring in and defend and that's been it never will want to bring in that context so you either have to rule the says you just never going to be able to bring in this kind of testimony that can't be right there on a second because there's no u s supreme court because already on point and there's there are state court cases allow that i think that actual  talking about here then i'm speaking not just about the admission of the statements in the first place there's with the corollary if the statements are going to come in and i have to be allowed to put them into the full context of what happened leading up to that but i'm saying here i think the problem with with trying to isolate those two things and make them two separate things is that a defendant is always going to have exactly the same argue that mr rose has sure they'd rather not have the confession come in in the first place but if it does defendants argue in the alternative all the time which is that if you if you're going to admit this evidence against me i'm allowed to put in the context which will explain to the jury why you shouldn't take those statements literally given to be clear mr were not submitted with anything that explained they were redacted by statements so and i do want to dress that real quick because i think that's a little bit deceptive i mean that mr mr rose and his counsel knew that this this was that this was given in the context of a giving of a lie detector examination they knew that if a lie detector examination they knew that the portions about the lie detector examination how do have been taken out of those otherwise they would have this is what i meant by damned if you do damned if you don't otherwise we'd be here arguing today that they were allowed to put the context in there they were allowed to tell the jury that he had taken a lie detectors emanation him and told that he was that his responses were measuring up and so so they knew that that was missing i mean there's nothing i've looked i don't see a thing on the record about that but i don't know how we can imagine that mr rose's counsel didn't know that the transcript that was given to the jury i mean if you look at the care person at that mr rose as helpfully provided in these proceedings the stuff that's gone is the stuff about the lie detector test and the no no that's not really true i there's a lot that i look at the reply brief for example on page starting on page seven they give us a comparison which i haven't independently verified of the redacted transcript and on redacted transcript and and leading me to say look there are there are paragraphs missing where the word paragraph or other word the progress is never meant much you know but that if you look around on page seven he says what you're doing is you're giving me something for me to explain away what's occurring on the charts again that that's a reference to the polygraph and so and i think i think you know again we could we can it is possible that you can quibble here or there with what was take out but i think it's pretty clear to me and i would urge the court to look at it like what's the stuff that's missing and the stuff that's  there is is that what they were trying to do which is take out not just obviously take out the word polygraph because mr rose would never been happy which is that but they were trying to take out to make sure that mr rose there was no reference at all that could be considered by mr rose to be referring to the fact that th just been discussing here is obviously with relation to the certify that she was there won't be any more briefing on but i think i think i've addressed most if first of all if there's any questions on that that often result they'd be happy to respond to them and then i guess the second it i want to give you a chance because they start to blur together so what we've talked about in the certified issue i've made references to and realize that you haven't had a chance to respond in a comprehensive fashion to the arguments with regard to to mr moore's testimony regarding the polygraph testing and the whole thing about the allegations that fence counsel didn't know until late what the tape said and so for the night i want to hear what you have to say about that but probably in a more this i think i may be hearing is that in the supplemental briefing you would like to hear more about the about the certified issue well pray for examples issue four seems to relate but mr moore the mr moore i think he was the polygraph operator his background and so forth and so there's overlap in my mind between issues one and four because it speaks to what the impact of the alleged misconduct there is not misconduct with the alleged error was so night i think you probably should focus in the limited space we've given you on the uncertified issues but in trying to respond to us today on the certified issue we've tiptoed across the line to some of the others because there's overlap and i'd like to hear from what you have to say with regard to those uncertified issues including where there's overlap to date your honor correctly is that correct but you'd i certainly don't have any problem with addressing the uncertified issues it is pointing to the courts briefing schedule but i would like to point out that almost all of what the states addressed today has to do with the certified issue which they've had a fair opportunity to address already and that much of what is now being said is being said for the first time in the history of these proceedings i mean our claim has always been the same about the different aspects for why this the state was improperly admitted i've heard the state mentioned a case called people versus maids that i don't see anywhere there answering brief i don't know exactly what that case says although it appears from the discussion that i think it involves this completing of the threshold admissibility versus admitting the whole context of the case there's also an argument being made now that either rose shouldn't have were didn't actually want the polygraph evidence admitted at his trial that that's something they haven't raised before again whatever prejudicial effect might have come in from knowing about this polygraph it was better to have an explanation than no explanation at all which is what he was struck with the way the evidence was presented at the trial now we have of course read your you briefing is there are just a quick answer is there any supreme court precedent that addresses the prosecution's use non confessions to make them appear to be false confessions i don't mean who are or federal law off the top of my head i can't i can't think of any supreme court case i don't think is in so far as the issue is the application of crane versus kentucky there should be any difference it's still a statement by the defended which the prosecution is using as inculpatory evidence so in that sense it's essentially when we step back and look at the certified issue and the question of standard  review and whether there was an abuse of discretion here if there is no case directly precedent directly on point either supreme court or federal directly our case i would say that crane is directly on point i think we were you know we a confession is a statement by the defendant that the prosecution used against him as inculpatory evidence and that's what they did with these statements i mean in a sense it's even more troubling because we have statements that everybody agrees are false so the question isn't whether he made false statements but why he made them and again the way the prosecutor is setting this up is the only reason he could have said this was it's because you're a child molester you have consciousness of your guilt when there was another explanation that mr rose was unable to provide and just one last thing if i if i could address it you know i think the state several times raise this darned if you do darned if you don't situation that mr rose might be and but that's not his fault i mean if there is if where we end up with is there's just no fair way to admit the statement without unfairly prejudicial credit prejudic