think i think that this case in trying to apply ohio versus roberts in idaho versus right demonstrates why the supreme court has called those rules inherently unpredictable and i think the court didn't distinguish between the statements of the mother and the statements to the detective or the statements to the marriage and family therapist but in lumping them together the trial court said statements were placerville chronological be reviewing or as the supreme court was in idaho versus right where we're reviewing factual findings made by a trial court and then being reviewed biased by an appellate court and you being in the position where you can look to see how they unreasonable is that no point in that opinion is the word presumption mentioned because the nevada supreme court was doing exactly what it should not do which is simply deciding whether or not  u makes factual findings that were different or in addition to those which were made by the trial court and there are really three areas that i'd like to focus on today we have a number of arguments here but i think the three that i'd like to focus on  argument is the first is that there is some sphere amount of collapsing of the twos or two or three sets of statements frankly the statements of the marriage and family therapist in which the marriage and family therapist testified that during her repeated contacts with the statements were not spontaneous that can't be the case the detective testified that he previewed the trial before he turned on the tape to make sure that her facts would be would be stated chronologically and in order in fact and two occasions as i go back to reexamine the transcript the detective testifies that he turns on and off the tape before he has her demonstrate with the dollars he turns off the tape according to his testimony at trial so that he can talk to her about the dolls and then he turns the tape transcript i went up to the nevada supreme court i went through the record with a fine tooth comb which is where i found that notated opinion when when they got i don't first write back there is nothing in this record which would have right for instance the doctor's questioning was not taped either and there was no record in evidence but what you do find in the supreme court opinion is the number of quotes from the doctor as to the nature of the questions that he asked but you can't even distinguish it on that on the basis that they were in on leading questions because even in right to detective even when we when we aren't even in right when the doctor asked when the  spontaneously provided some information they analyzed that there were a series of statements that they found were prompted by the doctor it was a last statement which they which they had to analyze in which they say it was spontaneous because there was no evidence that there had been prior interrogation we can't even count that so i suggest to you that at least with regard to the detective statements you cannot distinguish the facts in right from the facts in this case and therefore with regard to detective statements which this court is already found was substantial and injurious and had an impact on the verdict that that that would require meaning of relief on that ground alone the other two areas which are applicable to all of the the facts and come to a different conclusion that's not what i'm suggesting you do because you can't do i am saying though in you have a court that is reviewing a lower court which has not only been silent about how it was conducting its analysis of the evidence that it had before it but a lower court the trial court in this case applying the wrong presumption there is no question that judge mostly said here's what presumption he was applying he was i don't find anything which takes this out of the out of this situation which the statute contemplated meaning that the child a child under ten need not testify so he's applying the wrong presumption the opposite  opinion and based upon what they did you can see that they did not apply a perception i suppose what your adversaries going to say when he stands up and you can rebut right now if you like it was that after in idaho against right after they talked about the various approaches they have an analysis that they set up and that he will say that in the supreme court in this case followed the same analysis whether comes out one way or another way the analysis was the same they don't have to mention the word presumption as long as they file the analysis comes from the prism of your response i think that if they actually conducted the correct analysis then maybe that argument would have some weight but they didn't even do that because what they didn't do was they didn't follow the structure of idaho versus right they didn't say we will we will separate out the evidence that that that that then we will separate out the evidence that is outside of the circumstances of the statements but what they did until the end was to also determine what those circumstances which detracted from the reliability of the  can give deference to state court opinion is that when you're analyzing a question and particularly in this case where they went on at winks when they say in the footnote we don't think that we can even consider marital discord here that what's happening with the nevada supreme court since they analysis ever mention those things which detract from the reliability of statements that you can you can look at that objective leaning say you know what in event of supreme court did not consider the fact that this child know sort of all golf or is consistent statement on at least two other occasions she was inconsistent and probably many more than that because the marriage and family therapist said i've saw her weekly but never defined how you know the state put the put this marriage and family therapist on this is not a doctor she paid you know service training with a with a victim's group something like that she was a d a s counselor and she they put that evidence on to say well the reason she's being inconsistent is because that's what child molestation victims do well of course if that's what we're going to do the reason that she's being inconsistent is maybe because this didn't happen it's sort of like saying the reason that we know that this child is telling the truth is because she expressed affection for mr bhakti or maybe the reason that she's saying now is because she loved mr bach to miss didn't happen maybe the reason that my my point is not to argue it but it's  very similar to other expert testimony as to why there's a lag in reporting in the years of wagon reporting for example you know for sexual offenses but with that evidence in the record  the court isn't isn't required to discount that evidence isn't necessarily in is that it's an explanation and if the court chooses to believe that explanation or to in footnote it tells you why because they believed they couldn't they mis understood idaho versus right they thought that what it was that what they were being directed to do was to only look at the circumstances surrounding the surrounding seems in couldn't even look at at marital discord in terms that couldn't look at the fact that laura backed into two days to take the child to the hospital after she's supposed to have been told these horrible things couldn't even look at the fact that laura batting left the child alone with marvin by acting as soon as he came home in the morning after these things were supposed to occur in the court the court doesn't mention any of those things and the court tells you in footnote eight what it's doing it tells you it's not doing it that's a structural objective error in their application of idaho versus right and this court has already found that you should look at those factors that you can look at those factors and i suggest to you then in the in this case the fact that they were hearing and i you know there are periods there is one two there's at least knowing very compelling facts that the court at least should have mentioned and rejected and i think that that's what you do on an  analysis of the high court of the state is you look to see not whether you would come to a different conclusion based upon those facts but you look to see whether or not they apply the law that they had before them in such a way that you know that you were able to say they did they applied the raw correctly objectively reasonably and correctly and i suggest you not looking at those detracting facts is extremely compelling in saying that objectively you cannot say that that's what happened with the nevada supreme court  i would like to at this point go through the five things that the court did or not and let me tell you why i think that it's important to do that is that because we're in this as a situation where none of the things that the nevada supreme court found were found by the reply to the detective statement at all and why why is functioning in fact it's a factor because there's no time to reflect we know that the detective rehearsed the trial he says he did he says he got the facts straight before he started the interview officially we have conflicting testimony with regard to whether the mother was present the mother present said during trial she was present during the interview with the detective we have state of mind education in fear or barking testified she looked like she just woken up from a detective she was happy throughout the interview and talkative so state of mind can't be good if both sets of statements come in because it's one way during one set of statements in another way during another knowledge of sexual contact  good afternoon thank you for having us back i think the difficulty that mr barak tang has in this case is that much of his argument flies in the face of the two controlling standards one of the standards of course standard under section twenty to fifty four d but the other standard is the standard that judge wallace alluded to which comes out of the right case supreme court was very explicit on a number of very important issues and the right  the doubt state courts and lower federal courts when they engage in the reliability analysis must be given quote considerable leeway and quote in how they consider the applicable facts the supreme court of course and idaho versus right specifically laid out for specific facts noted that some other cases have used other state cases have used more use different issues they came down with fo specific factors that they liked and then they said any other relevant factor going to reliability so they're allowing state courts to consider factors that they didn't even mention trusting i presume the corroborate or and the nevada supreme court's limitation of that i'm presuming came from judge kennedy's dissenting opinion he apparently had the same complaint that crowd rating evidence should be the state court did because they dropped that complaint in that footnote therefore there's something untoward about their their analytical process difficulty with that argument is they said like justice kennedy we disagree they looked at those four factors they did not look at corroborating factors which i would point out was the mistake that the idaho supreme court apparently made and the right case because they did look at the corroborat factors apparently and justice o'connor's opinion there's a policy determination that these factors like other hearsay exceptions have to focus only on the factual circumstances surrounding the they discussed the various issues and the structural and the analytical structure of idaho versus right in that case they applied those factors they applied the facts of the case and they came up with a decision it seems to me that when a state supreme court tells you that they are applying the decision that the u s supreme court just recently told them explicitly to apply that we have to take them at their word that they they conclude by saying that in viewing the totality of the circumstances surrounding the child's out of court statements as defined in right we conclude the district court did not air and findings to fish and particularized guarantees of trustworthiness to admit the proffered statements that's the last second to last paragraph in the nevada supreme court's opinion that to me they may not use the word that to me tells me that they thinks they're telling us came back and the child was crying when she came back from paying the rent she came back and the child was crying in the child said to her he i told him what happened he's leaving i know he's something to the effect  leaving or daddy said he has to leave now daddy told me to tell you that i lied but mommy i can't tell you that i lied because i was telling you the truth that is another confirmatory state well they certainly they i was did you ever come a child when you get in touch you no way you did not think he was supposed to touch you answer yes now you said there was a time you thought your daddy touched you that you didn't think you ought to touch you like that is that right answer yes do you remember when that was a long time ago do you remember was your mommy there pleasure mommy there know how about honesty was honesty there yes where was honestly in the same room with you know the answer she was in the living room and what were you when in the bathroom what happened when you were in the bathroom no response at this point in time once the details of the sexual assaults are being asked about pants he left on your pants witness nods head that isn't inconsistent stay calm and the whole thing goes on i'm not going to repeat like that what's difficult here is i think that statement may well be on the recitation of facts but then there's no dealing with the inconsistency in the opinion now so that that's really a number hurdle i'm trying to look at a great a number of the what i would call disconfirming evidence if you will for lack for just a creative shorthand is in fact mentioned either in the factual section of the of the opinion or it's mentioned  footnote the child's elevated knowledge of adult anatomy and seeing her parents shower together and walking in on her parents having sex that's mention watching television the specific testimony was that she looked like she had woken up from a bad dream what's a pretty good but we don't know if she had been engaging in a dream mothers the question that mother was answering was what did the child look like and i think she was trying to create a descriptive picture of the child she was of might she had woken up from a bad dream i don't think we know in fact that she was engaging in a dream the difficulty with the with the dream conjecture is it doesn't explain her detailed statements to detectives and of it well i'm not going to would respectfully disagree i don't think cross examination would have added anything because they'll ability issue i'm sorry and also go to an availability if she wouldn't testifying in effect or couldn't and i'm not clear on your question because of her well the state talked to took all the reasonable efforts they needed to take the good faith efforts to have her there at trial and under roberts they met they did their duty in getting her there the fact that the the fact that she broke down and was not able to continue i don't think in your rest of the state we have to i think we have to keep in mind the larger context this is a six year old girl who is a sexual assault victim adults don't like taking the stand thirty year old rape victims don't like taking the stand they don't like reliving the violence of that crime this was a six year old girl who in the first half of a preliminary hearing i would suggest w the child as being traumatized by the criminal justice system by being asked these details questions in a strange room in front of a roomful of strangers i would expect a six year old child to have problems being  these detailed questions well if the state doesn't have a right to put someone on the stand maybe the way the constitution w i hope you don't i i hope you don't hear my comments that way because my comments are made in the context of the fact that the nevada supreme court told us that they looked at the totality of the circumstances if in fact they did what they said they did as instructed by the u s supreme court in a published opinion where they actually discussed those factors in their case and talked about what i'm calling some of that disconfirming evidence in that case under the old law i mean the irony is it's not even the law me more but under the old law that's not quite dead yet they under the constitution those statements are admissible because the according to both roberts and according to crawford all hearsay is has never been inadmissible under the confrontation clause under crawford more hearsay comes in now than before under the way i see it and i think judge  commented on that in in our case but i'm not keen the let me let me make one let me make two very specific points on this disc confirmatory evidence issue that i think really go to the heart of this issue nothing in that opinion that says you may you may not look or you must look at disconfirm a tory evidence as a matter of fact if i can quote from idaho vs right what they specifically said was just the opposite we agree that particular eyes guarantees of trustworthiness must be shown from the totality of the circumstances but we think the relevant circumstances are limited to ways they include only those that surround the making of the statement nothing nil and second that render the declarant particularly worthy of belief there is nothing in idaho vs right that creates a duty on lower courts at the time in evidence problem with the rule as you state i if you had a child who is blind and she said i saw that guy he looked just like this and then the court fails to mention actually he's blind under your theory the fact that they failed to mention that she was blind would case that is relevant evidence i'm not i'm certainly not saying it's not relevant i don't think it's relevant to the reliability analysis but it's brady material and it certainly should come in similar to this case i'm not convinced under the standard of idaho versus right that the preliminary hearing in consistencies should be part and parcel of this analysis because they don't go to the worthiness of belief of the declarant now are they relevant absolutely their prior inconsistent statements and i would point out the judge mostly in this case saying that those were in conspire inconsistent statements it made it goes to trial so that the judge could the inconsistent statements with the consistent here's a statements right the scope of facts that are that a court has a duty to look at is very very narrow under th ed because both standards give the state courts leeway in how they apply those factors thank you thank you things your honour's first years is that they detected statements to the detectives and the u s supreme court has told us would not come in pretty crawford or post crawford no one question no one has there's never been disputed that the fact that those courts have been all over the board on the statements but their results have not been inconsistent with crawford if their testimony on that means that the detective statements would not come you should not commit secondly with regard to the utility of cross examination that is an expression of the presumption and i it is not you don't look at it from the point of view of would cross examination when the child will not be cross examined be it had any utility the interchange with regard to  cross examination would have had utility you can't just excuse the witness at that point and so i think it's an expression of the presumption and finally i don't think there's any question within about a supreme court and i think the you can only read the then i don't need to reemphasize it and i went point to the exactly the same language that the deputy attorney general mentioned with regard to what was the nevada supreme court doing with regard to the presumption that a very stream court said the district court did not air in