penetration well now you're out of the testimony at trial there were conflicting statements from both witnesses that's part of the reason why this was a real credibility battle but i think he said that following up on what my colleague didn't he in his statement to the investigators has confessed if you will that she was groggy and was became aware of his being there when he was in the sexual act that's correct that's where his statements to the agents but his sworn testimony is a difficult case so you're discounting that well i did say that of course the jury had to take all of that it worked that way and the same thing with the complaining witness she made contradictory statements to the investigators that were different  case it's a real he said she said well it's a little more than that and i mean usually he said she said there's absolutely nothing to contradict and here you've got statements by the defendant where at least before the investigators he in effect admits that what he was charged with doing he did that that's really out of it that was explained by the testimony and i think that really the evidence here is kind of an aqua poise as far as a a task for the jury because they had they had one side that had inconsistent contradictory statements between the investigation and on the stand and on the same side on the other side is exactly the same thing and juries are far that's correct your honor but i'm just talking about the situation that was presented here at the time  mistrial was requested and that's the problem that's the thing that tipped the balance here unfairly and prejudicially because there was a intense emotional outburst by the key prosecution witness presumption that juries follow the instructions of the court the court obviously visited with the jurors whether it was how they reacted to it got no negative reaction gave them instructions then gave instruct later on that they were to pay no attention to that is that the defense's position that that is all of no effect and that we should order a new trial because of the outburst yes your honor it is because i'm a unique inquiry get in korea itself worsen the problem so the courts in the group inquiry made this a bigger problem than it might have been have a court for instance done individual sequestered comprehensive inquiry of each of the jurors what he did was a group inquiry with all the jurors sitting there the first thing he says is he describes the very conduct that he's inquiring into from his own observations and from others and then he asked each of the percipient jurors to describe what they saw in front of all the other jurors so number one so if he's reinforcing and trenching those who did see something and if there are any jurors who didn't see anything they've now been and it's now been broadcast to every member of the jury that is a very deficient in court of the court should not have done that well suppose that this outburst actually occurred when she  d and she was highly emotional it would that have been automatic grounds for mistrial doesn't that happen in a lot of trials that there is great emotion demonstrated by a victim she's testifying how in the position to second guess that well i because i would say you know that looking at this case again i i would think that really the unique facts of this case move this situation closer to what we would call  chance is that how much does the conduct the outbursts reflect some of the testimony here it was very reflective and so the jurors were in a situation where here we have a very close case where they're looking at some sort of conduct but really what they're doing is you're seeing new evidence new extrinsic evidence and when we in extrinsic evidence cases the standard is dispositive here because extrinsic evidence if there's any reasonable possibility that the extrinsic evidence affected the verdict then there should be a mistrial or a reversal and in that case it's also clear the standard of review is the government must prove beyond a reasonable doubt that there was no reasonable possibility so you take the position that instead of our reviewing what the district court did here is an abuse of discretion that in fact you have the criminal standard you have to show from your perspective the government has to show beyond a reasonable doubt that the outburst did not change the result that i believe so your honor because of the unique facts of this case but everybody says every case is unique you know here that the previous case well you know i  of the reasons what's so unique about this case that's so different from any of the case law that's been cited number one is that the intensity of this outburst is something very different from other cases a lot of cases just talk about a witness weeping on the stand yes it is your position that a mistrial would have been required not automatically and i agree that there should be a proper inquiry into the effect but that's just the that's just the situation here the judge here did not make a proper  the judge didn't even consult with counsel to decide how should we proceed he just moved ahead and did this group inquiry what's your best case to back up your point that this converted an outburst in the hallway two extra inch of evidence we had the different standard of review what's your best case for that and i haven't seen any cases that particularly link it normally by yes and in fact that's the problem is the case law on these out a key prosecution witness that the jury had to evaluate and as it happens in this case that behavior mirrored and kind of reacted as i said in the brief reenacted some of the testimony not only of the complaining witness but testimony of other witnesses this was a instance where the outburst wasn't just something that happened like where a victim's relative comes in and it's shouts out something to the defendant defense this was a witness the jury had to evaluate and her behavior not only mirrored what her testimony and other witnesses testimony but here's one key way in which this prejudice the whole defense theory the defense theory was that she consented and then regretted afterwards and raised a complaint but this kind of behavior was very extreme this conduct this her emotion up this was very intense it would prejudice that defense theory completely biased a juror thinking someone who simply regretted having sex and had sex and then regretted doing that would not behave in this way this conduct extremely emotional outburst on the evening that this happened well yes there were there was testimony to emotional outbursts from the complaining witness on more than one occasion during that night but that's the very point here is that here was a reenactment of that very behavior that was testified to that could have no effect on the jury except to say hum that must really be true that's just like what we've heard from the stand so the problem was that this behavior as the district judge himself that i don't expect you're going to be able to erase this from your mind and he's actually correct you can't erase it but they're going to feel like this is exactly this thing that i heard testified to and why would she be so emotional i simply regretted having consented to sex with this what was she emotional when she was on the stand it's hard to say i mean the judge and counsel talk about her being emotional on the stand but i went through the record and maybe learned counsel has other citations but all i could find was one instance where the court had to pause during the proceeding even though judge burton says we had to pause a couple of times i didn't find any place in the record except one time where they paused and i know what happened by talking to trial counsel and i can make represents haitians in the court but reading the record it doesn't look like there was constant stopping pausing or anything that the if you mentioned that she was emotional while she was testifying and no problem there nobody of course defense counsel raise no mistrial motion on the basis of emotion is the important thing is how is it objectively going to be have an effect on the jerks the jurors now have heard all of the jurors thanks to judge burns procedure of the group inquiry all the judge jurors now know that there was this violent intense outburst that required a new query from the court we all heard the details of it because the judge asked all the jurors to repeat it in front of the other jurors and now they were saying like she  her testimony about this that could only have the effect of bowstring the credibility her testimony of other witnesses testimony of her version of events and particularly it would undermine the defense theory that she simply consented and regret it because nobody acts so violently i mean most people would not react that violently to something that they just simply regret it afterwards this would be a way of please be undermining the defense theory that is extremely prejudicial this is denied mr already on a fair trial going forward the only way to solve it at this stage especially after the judge had telegraphed all of this behavior to the jury made it into deficient please the court i j krishnamurthy for the united states with the court's permission i'd like to start by addressing the mistrial issue first the final premise of mr henri on his argument to begin with is that any outburst necessarily in or to his detriment in the victim's benefit but under the facts and circumstances of this case there's no logical reason that's true and that's because the defense wasn't just that the victim consented it was also the victim drummed up a false complaint because she was seeking attention that comes through in all the cross the court also already noted that the idea of bolstering is a little bit hard to square with the facts of this case because there is no dispute about those outbursts at the time of the incident everyone agree that the victim in this case was it could be heard from outside in the hall even though it was in the bathroom but you government can see that there are that there could be conduct on the part of a victim that would rise to such a level that it would impede the ability of the jury to dispassionately weigh her testimony i agree that there may be some circumstances where that may be a concern but i don't think this is such a case the first is what i've prejudice if any exists so i want to be sure i understand your your earlier point i think you said that the one of the alternative theories of the defense was basically this is a very dramatic demonstrative individual she be attention of her boyfriend and that this was just more of the same conduct which would bolster the one of the defense's theory that your position yes i think they did make that they didn't make the argument that the s only the portions that were actually made it into evidence right you know so sometimes you play a portion of the video and that portion is admit it but the actual video contains much more than that that's not and i just want to say i think the council's admission that this false accusation is the heart of the defensive here and that's exactly what this went into is that this demonstration was bolstering the fact that this was not a false accusation this is someone who is really agreed and very upset and emotionally distraught by what happened that boaster her version of events and counter or possibly one of yours at least according to one he's well i we share his attempting to help me but we don't believe th the first juror out the door he's the first one that heard this juror then the complaining witness was moved out in the hallway was seen being comforted and then was taken into the bathroom this all took some time you're more said that he heard a noise from the bathroom which means the jurors were still in the area while this whole concept was going on from the court room to the hallway to the bathroom and so this was something that jurors were exposed to for significant amount of time this is such a case where given all of the specific unique cases of this that this requires unique remedy of a mistrial because of the defective inquiry and because of the defective remedy which i didn't get