is reliability it has never once permitted the government to rely on hearsay in a revocation that it did not consider reliable even get to the question of good cause if the statements are non testimonial  we just know for the hypothesis that this particular statement is non testimonial in we would not have a right to confront before we get to anything about good cause and anything else you would not have a right to confront the person who makes the statement actual why would you necessarily have the right to confront under the due process clause in a revocation hearing well because he is under the even if you don't have a right under the th amendment right to get to confrontation you would still have in that case you would still have a about the right to confront at what was then a parole revocation hearing we know that that right whatever the content of it is it has to be narrower than the right to confront a trial has to be so then the before we get to good cause and all the rest of it just the act the th ing that was triggering the constitutional question not the rules of evidence not the due process but i'm just talking at the right to confront so i would think that we would have to start with the question is the statement at issue testimony well it is i w there is a model but that morris the statement that it is narrower than the six minute right to confrontation does not necessarily mean that it is a subset of the right to confrontation that something can be narrower than something else that does not completely overlap  essence of the due process protection is to make sure that we are not imprisoning people for conduct that that hasn't been established that we may not have done whereas the six minute right to confrontation as th is described in crawford in melinda's the as a those cases is is very much to restrain the government to make sure that the government doesn't have a wall in creating evidence against against the accused that that could expand its powers hammond in those cases this is not a situation where that they declare it has called to meet an ongoing emergency that would be this the case if she had called while she was in the car or maybe very shortly thereafter still in his presence this  is a situation where she is giving information to the police in order to assist them in making a case against them later i think that clearly in the distinction is drawn between davis payment system some of the statements she's making are our spir lee in the context of an ongoing relationship with the probation officer you know we call and talk about how things are going where is the defendant oh he's living with you oh that's interesting and it's not it's not in the context implied by the way the person is making the phone  call is the declarant it's not like the police are bring somebody in for an interrogation and they're trying to collect evidence in conducting an investigation it's just a conversation initiated by the girl from wife the declarant in the case so i would strike me that maybe it's or maybe it's not but the st question should be is it testimonial and then we have to go through and discuss each statement right to do that we would clearly have to excuse me i think the court would clearly have to reverse the case if the the statement related to the to the probation officer on the day after the assault and alleges salt and the statement made to the police officer immediately after it's all or testimony because those were the evidence that was the evidence that or if those were unconstitutional helping testimonial because those were the evidence that would that is the evidence of the most serious violation that is the violation it's triggered under seventy one  and and the ongoing discussion of the relationship with the probation officer it is it is impossible to say that that was not for an ongoing investigation when it was not occurring to meet an ongoing emergency if she's just talking to the probation officer a t not in an effort to initiate legal proceedings or income or where the probation officer is attempting to initiate legal legal proceedings in that situation then you might have a closer case but at a knowing more about the conversation with probation officer and the declarant motive in that situation we can't say that the government has met its burden to show that that was not for the purpose of an ongoing list let's assume argument that it was testimonial that tooth statements that you say are the most critical of the  findings against your client talk to us about the good cause haven't we found that fear is a good cause to appear i don't believe this court happens i would say that that's i would not think that there is any case think the government cannot cite a case in which this court has held that none of that testimony that is not in our court information that is not corroborated by scientific or physical evidence of some kind  that out of court test information may be admitted in a revocation hearing when it did not find that information to be reliable and don't your client statements given in  consistent with that and a cut on the cheek is not consistent with that and the declarant never indicated that mark that st of all nobody's ever seen that mark the police officer didn't didn't see that more on that that is touching as on the neck and not the cheek than than one person's passion touching maybe maybe another person's joking but that that's not what happened here and that the only illustrates i think the very strong interest that the defendant had in cross examination in this case because you know if we would have a question there about what that we could we could then ask the the declarant where was the mork was there a mark on your cheek why didn't she tell the put the police officer about judge things as question about fear the case that most clearly presents the question of whether fear may outweigh may constitute good cause in the absence of reliability is baker and which could in which case the a parole officer said that this the witness is hysterical and therefore withheld the right across examination in that case in this court reversed that case because it was not it was not considerable liable so now there may be there may come another case where there was a challenge there is a true collision between the government some overriding compelling interest of the government in admitting hearsay without without putting a witness on the stand and the defendant's right to cross examine somebody who has given information that is not held to be necessarily reliable but in that case you should hold the gun the government should at least do a bare minimum to demonstrate that that conflict is truly inevitable and that there is a true collision in this case in this case the government nobody attempts to contact the witness about testimony until four pm the day before their months and months of notice that the defendant wishes to call in cross examine this witness no subpoena is ever attempted and in it when the probation officer or not the government but the probation officer an officer of the court calls the witness to it to attempt to get her to testify in a symbol the government's case for it that officer doesn't ask the salient question of are you afraid of the defendant in order to testify the the declarant in this case told us gave us the reasons that she did not want to testify and it was not fear of the defendant in that case why didn't this case more like elizondo in reason there's there's a couple was so strong as to make close examination effectively support phyllis i don't think that we can we can remotely say that if is a clever than say an alleged mark on the cheek that nobody has ever observed means that the defendant didn't have any valuable cross examination that he could have engaged in that could change the album in addition some specific distinctions between those cases in elizondo the declarant in that case told a police officer  and acted consistently with that you would make an allegation and then it would become a parade and back you know and so that's very consistent with kind of the battered woman situation where you're right at the point of the batter and so after you come out and he's mad at you again then you back off and so on and so forth so why isn't that holistic picture relevant it would be relevant if the government had to test it we would at least be presented with that question if the government had asked and had bothered to ask a simple question do you wish to test do not wish to testify because the you were afraid of the defendant in the absence of at least asking the direct question we are there is nothing no objective fact in the record that would allay a concern and that she was left off the stand because the government didn't think that she would be credible in the case and not saying that that's what happened and those reputation the prosecutor below that's not my belief but a future prosecutor if the government wins this case will be able to point to that to to this record and say you know nothing in the record just to exclude the possibility that we are leaving her off the stand for a technical or a strategic or a strategic reason so that two very compelling interests between the fear of a witness of testifying and the defendant's right to cross examine and that the imperative that we have accurate facts finding that made that determination in specifically in baker and it has made it more globally when it has said over and over again that reliability is the linchpin of the of the of good cause and it has consistently held that that reliability is the most essential part of the defendant's due process right and so even if we were presented with that question i would submit that we would that we would win in that case and and the reason for that is if you look more globally at that that a legit pattern of abuse all of that is source to the to the victim in this case all that is is sourced to the declare none of it is corroborated by anything other then her statements and her behavior and in this case and so really what would the court would be doing at that time for the government's case would be court creating a blanket exception for domestic violence victims to good cause because it would be saying that even if the victim doesn't say they're afraid to testify even if they're not subpoenaed even if they are not asked whether they're afraid to testify that the court could leave them off the stand because it merely inferred as much and if you look at pages one hundred and sixty six to one hundred and sixty eight you see that that is very starkly the question that's presented the use in that kind of circular because their whole argument as he didn't do it and he's going to say he did it and if you say well her saying he did means he doesn't have to come testify to that then will we is is there ever a need for the good cause exception  domestic violence cases because it just won't ever be any testimony and certainly there is your honor and i don't think that this court takes away a big bright line standards and revocation cases this court of counsel district courts these are taken on a case by case basis it's a flexible requirement and in this case there's a great deal of evidence that demonstrates both fear on the defendant's part and i believe in this year of reliability about her story on march th so all of that taken together i don't think that that is going to be the situation in every case and i don't think that district courts or in this court have allowed district courts to take away those sorts of bright line rules in domestic violence cases but with this case clause that that's what he's arguing that if we were in your favor then we just open the door to pretty much every domestic violence case it would just be a matter of what did the victim tell the probation officer of the police officer or somebody of that nature and whenever hear from the victim i think only if future cases bear the same facts as this case which i think is highly unlikely livened well because there is a history of activity here there is the allegations that she made to police officers in january two thousand and thirteen there's the phone call there's restraining order there's future activity in october two thousand and eighteen there's a long standing relationship with her probation officer which she tells that probation officer time and time again she's fearful of the police officers who saw this alvarez on march th two thousand  was nervous kind of crying appeared scared so we've got a great deal of evidence and i think more evidence collectively about the type of relationship between these two folks than appeared to be an issue and you know reza real isn't over this court found good cause in the fairly similar to officer linda would not be the sorts of statements course of typically found to be testimony on i think that this court relied solely on that then you could find that the goes good cause it tested not necessarily need to be done that said i  probably would need to do a more fulsome bit of research on whether or not that question is ever arisen in the circuit i've never seen it arise in the circuit but the position of united states is that it has whatever the right is whatever the content of the right is at the revocation hearing it petition for revocation of the sentence there were several allegations of supervised release conditions that have been violated the one we've been focused on this morning obviously was the choking would any one of those be sufficient to uphold the revocation or do you have is there some suppose that suppose some of the conditions are violated and others may have this you know confrontation problem associated with them what would be the result well i will say that there are three violations that turn on this alvarez's testimony to the assault moving without telling the probation officer and also filling out reports are false based on having those all depend on myself he admitted to one i would say more technical violation page said it's your burden to show it wasn't testimonial i believe it is your so if you don't even raise it and you wait for a very smart judge to raise it then is that something we should  i certainly think it could be and i would like the opportunity of a court would allow that potentially write a supplemental brief on the subject and if i am given the opportunity i'll certainly dress the burdens as well but turning  it assuming are going to head pains mentioned that these statements were testimonial and we are operating as a court as previously operated just under the good cause standard i disagree with my friend mr page that this court has never found fear to be a sufficient for a witness not to come testify and i think that is borne out most explicitly in the residence issue now i agree that there are some factual distinctions but that said in the residence engine the victim in that case she provides a written statement to the police she doesn't come testify she government provides no reason why she doesn't come testify to what this court said in that decision i believe on page two hundred and forty two to seventy two rather is that the district court clearly found good reason why the government wouldn't want to call a domestic violence victim in that sort of setting i believe there what the court is saying is that fear can be inferred and it can be a good reason not to call the person at all you know here the government ma would not claim that this was a perfect process to to get this particular witness now i think the four o'clock timing is being a little bit overstated because what the record shows i believe is that effort started before four o'clock  and thirty i don't know i don't know what time your honor it could it could have been earlier that week but i mean i granted i have not been a federal prosecutor but i have done trials and i have presided over a lot of trials and usually you're not just deciding what witnesses you're going to call the afternoon before the trial completely agree expecting to win by doing well i agree your honor i will say miss lyndall lyndall has this phone number she's been in contact perhaps she believes it was possible to get contact with or to have  come i think that they discovered the phone number that was successfully used very close in times of the hearing itself government didn't just using known phone number and threw up their hands they tried to contact or they talked to or they asked her to come to the hearing i  on the th circuit and even in that case the court didn't require a subpoena to be issued an order to demonstrate good cause like i mentioned previously it's a flexible standard it's done on a case by case basis and what this court does is it weighs the interests of both parties and then test the statement for ind reliability i believe the court in resin the katyn that the government can have an interest in not bringing a domestic violence victim to testify in the court elizondo also indicated that the government has a significant interest in using evidence that was gathered immediately after the time of the assault and that's precisely what happened here  and the judge like to also add one point to a question you asked about the statement that mr album alvey are made to the probation officer up to the point in time when that statement was made which i believe i in november of two thousand and eighteen on page one hundred and two and the record off your little testified to the point that up to that point he had essentially denied anything and taken place and then the story shifts a bit and then he says oh i touched your neck caused a cut on her i'd also like to talk very briefly about the baker versus wainwright decision because in that case there's a number of added factors that simply are not present here in that case one of the reasons the court reversed was because it was a pro se defendant who had not been given counsel in this court found that was inappropriate in the pro revocation setting and in addition to that there had been no underlying the cause finding an autopsy of it the only claim that this witness was quote hysterical was based on something not brought out at the original state level parole revocation hearing but i believe that the state or rather than district court it was a self serving statement from one i'd also like to talk about the district court's fear decision because i agree in the context of just that one phone call that occurred the day before the revocation hearing in a vacuum it may not be able to infer fear based on that call but throughout the entire course of events between these two individuals i think the district court rightly relied on that in in its entirety to find why a witness like miss alvarez might rightly be fearful of are just to summarize in january of two rightly here i know that sounds like an objective test the question really was was he not willing to testify because it here statements miss alvarez made the day before because she said she was tire of shoot she had work afraid of public speaking but she never called her back and so from that judge boyle inferred fear on behalf of the victim here and that fear i think  was rightly held given the threat of new photographs being posted on the internet and that was i think importantly that threat was made after miss alvarez moves out because of the drug activities she says she wants to make a facebook account and she gets choked and threatened with murder as a result she gets a protective order there's a court order related to the choking incident but even despite that court order mr album is following her home and text messaging her so that entire course of conduct would cause fear in someone like  and finally i don't think again as i mentioned these cases it's very hard to draw a great deal from these cases when it comes to cases in the future because they are so fact intensive and because they could cause requirements flexible and as a result i don't believe that prosecutors will be encouraged not to make great efforts based on this decision given the fact that the prosecutors did make efforts in this case and it simply did not work out and given the i think fairly unique set of circumstances o'clock that day i don't think that the st successful call was made at four o'clock but again it was not a perfect process but efforts were were i think made in advance of that so if the court has a defendant is not defeat the right to of cross examination if it is important that's williams versus johnson and johnson to respond to my friend's discussion of raise a one important significant difference and in ra here in addition to the physical evidence is that the the razor court pointed out that the declarer in that case had given information that police had verified and found in the end found to be reliable and accurate in the past there is there's nothing like that here all both the good cause finding and all of the substantive information testimony that would result in a revocation were sourced exclusively the declarant in this case so if we take seriously the possibility that the defendant might be innocent of the conduct of which he has read pledged then there has to be some basis for him to come in and be and take a witness who appears to be one way on paper and determine whether the live flesh and blood witness is who they appear to be and on paper maybe on paper she appears to be the typical domestic violence survivor in that case who makes an allegation and then withdraws and makes no additional withdraws and subjected to a link the pattern of abuse but we if we take seriously the possibility that without knowing more about what the restraining order is we don't think that we can say that a restraining order may have been uncontested on him or that the restraining order is self i don't believe is in the record no your honor the fact that there was a restraining order is in the be the critical factor in determining a th amendment confrontation right has never has adjudicated many cases under this under the arising of the th amendment and has never discussed the testimony al the ordinary rule is that in briefing the failure to raise an issue in briefing is is a waiver of that a little different on a purely because we can affirm for any basis ordered by the record but i'm just wondering because you know this isn't a civil case and john for his jane this is a criminal case in which we have to look at the government's burden is the government's burden and proving lack of testament you know encompass having to raise it to did you do did you object that the statements that were offered were testimony you know so why would the government respond that well hold on and on testimonial well because the government would have the ability would have the right to introduce the yet right and therefore but quite apart from the the the their argument below the argument here is talk that speak english would say that with a new human the case for some reason that would be a very different thing than if you're trying to rely on the content of what he said and so it would be and i realize testimony ality is a step further than that but just even in the hearsay context even you know we're looking at why are we introducing this and so if it doesn't matter whether we need good cause and all of that i don't think we would have gone down that path that's what you're saying right and that's precisely and so if the government say look i mean why are we talking a good cause any testimony will you know have a nice day then that would have been addressed at that point but they didn't bring that up but it would be it would be particularly strange to impose a burden on the defense to argue an element that this court has never recognized as crawford in spite of our purses cooper jem