roberts or crawford it is crystal clear that his rights under the confrontation clause were violated when the trial court  not you know your honor i think we win either way i think we have a very compelling case you know what you have more compelling evidence of course i was i was very pleased when davis came down there's no question about i'd i could the judge said love the nine eleven call she was called by then so the nine eleven call doesn't come in so this is not a judge who said well anything that happens in twenty four hours an event is going to being cited now think you are because ultimately it's your province to determine reliability and if you know we start from the premise that the supreme court has held of conclusions by the california courts and there are fast people were upset emotionally upset to the point of shaking their fall and so by what lever do we get in there and do that on the ground that it's not support law but the question of whether the statements fall within a firmly rooted hearsay exception for the confrontation clause purposes is a question of federal law yes is not the answer i think that  i think that's one of the ones that's long established i mean and you don't look at every dime they go racing to see whether or not the person really really was dying or really very it was alive a lot of those circumstances for example in boxing i don't think there is any question that if the court if the supreme court holds that the barking is not retroactive that the that the petition is there is going to be able to go back itself was and it was inadmissible was the most calm statement he'd ever heard of a nine eleven call and then there's six hours ago by and then you have dickinson coming in and interviewing the mother and he says she was almost shaking at what is that almost shaking i mean the characterization and the words that are used it seems to me that the very problem the court addressed is that you shouldn't have an opportunity to reflect on what had happened earlier and then have that come in as a spontaneous declaration and isn't that what happened here not only do you disagree your honor the nine one one call the court  your question regarding what didn't they have the opportunity to reflect i think that's where all the factors come in to determine that that exact question you know was there time to reflect and in answering that question the lapse of time is not the only making the determination as to whether or not there was a clear view regarding supreme court authority white says that the point of the time factor is that the declarant must not have an opportunity to reflect six case there was that if you see that husband who overheard his wife and her lover plotting to kill him and he had made statements to two different lawyers and two separate times i think one of the lawyers he spoke to was a day before he was actually killed and we telling them about his fear of what he had overheard so in that case the court without talking about the time factor went through the three different elements under the federal rules of evidence exception and found that especial cases spouses want to nothing to do with the court trying to run trying to rope them and drag them into court was damn near impossible that may happen that maybe what happened in this case isn't that this point the six not may not may be testimonial however a this court also stated that in especially in time in cases involving domestic violence that initial increase by officers may also being on testimonial depending on the the what the state court here did was make an unreasonable determination of facts in light of the evidence and you know correctly a law that misapplied the fact good on the fact that that's not i don't believe that that's the type of ongoing emergency the quote was speaking of and why you know you had a protective order that this guy obviously has decided he's going to pay no attention to and one of the most dangerous situations that any police officer will tell you is just and that's problems between husbands and wives are ex husbands and wives there's a protective order she's gone to court she's tried to get the law on her side the law now is that the police have no legal obligation to protect her and this guy's right mackellar sounds like that might make somebody pretty anxious well that this it but it doesn't have to do with her anxiety the issue is whether the police at the time they're questioning her ar quoting or addressing a pressing life threatening or you know physical harm threatening situation i'm not saying you know it doesn't happen the issue isn't whether the  behavior was bad or frightening the issue is whether you know what the police are doing at the time they're questioning the woman and what you know what is in her mind it's not it's more where correct a rational judge could have ruled that too much time had passed and kept it out the problem here as i said before is you've got a definitive factually based statement from state court that said no this qualifies as a problem you know your absolutely do i absolutely do and i'm getting people into counseling and and i've dealt with some of them some clients or people play and know exactly what the court this is talking about the let me let me just go back to something about just about this exception crawford and in davis for the for the spontaneous statement exception and and every enunciation of the what if yes talks about the reflective capacities being still to know that the statement has to be made so hard feelings of the exciting event that we have confidence that there was no opportunity for the was was you know when he went through the history of the confrontation clause and they are there jurisprudence with respect to testimonial evidence he's dad well there is there is only one case in which it is even arguable that we the supreme court may have may have issued a ruling that would permit testimonial evidence to be admitted without cross examination and that was that was why in the spontaneous statement here that he went back and quoted the sixteen th admit it but we don't know one single solitary thing about what happened between eleven and the morning and find whatever it was four or forty  the comments nine one one tapes this judge had ever heard of how is that possible no matter how agitated parrish appeared to be at the time of the incident and i think that at the time of the invest in the questioning by the officer to some minds from that agitation that her reflective capacity with still during that entire five and a half hour interval there is no rational basis for drawing that kind of a conclusion there's no there is no evidence at all the only evidence we have it is the opposite it's just that she was she was so confident this you know here we've got something that's actually