defendant detective mike civil executed a search warrants on nonparty charles patridge one bedroom apartment shortly before five am detective civil found another nonparty jose carlos being in the living room in a sleeping bag next to two ounces of marijuana actually arrives thirteen minutes later now later that night detectives civil signed a criminal court complaint that said that the marijuana he found was next both mr ashley and mr karr was in the living room he knew this was a false statement but he signed it under oath and back to back to the prosecutor without saying this has a mistake or this is false this set the criminal case in was probable cause for the arrest because it was made after the arrest and the rest was based on the circumstances in the apartment when detective several arrived and his prior visit to say is that correct you can read that well i partially agree with that i think that the false statement shows detective civil state of mind and in fact greatly calls his credibility into question now it's true that he does come up with all of these other facts to indicate that this is m room most of this shows up in litigation after mr ashley had testified under oath and the question professor arrest is what did detective civil know at the time when he was making the arrest one point before hand or at least he sometimes slept in the living room but and this is important detectives civil and his team had been watching the apartment for significant period of time and i think that it's fair for a jury to assume facts of what they found at the time of the raid but you have to but i stepped behind and other personal effects so we may have been sleeping in both places from time to time that doesn't mean he didn't have to main at the time and if you look at the documents if you look at which say what you are saying is one doesn't believe the tech will then there is no reason for detectives several  arrested without a warrant named him so the burden is on detective civil and what the district court did was take an element where detective civil had the burden and in fact make all these credibility finding in his favor and i believe that was an appropriate i don't recall this clarify we we have we have whether there was probable cause for the arrest and then we have the malicious prosecution and you know detective  participation and that through his false statement that i see those as potentially different standards that get applied and his and a different impact maybe you could clarify for me what the impact of his false statement right yes your honor and i would also say we also have a fair trial court in which i would like to discuss as well but going into the malicious prosecution claim i actually think that detective sibyl's an even worse position because if you look at the  case in order to have probable cause to initiate a prosecution you must have some reason to believe that the prosecution will be successful and if you look at new york mayor excuse me yes i think that for detectives civil side of the argument he's an even worse position for malicious prosecution because following the boyd case in order to have probable cause to initiate a pros you must have some reason to believe that that prosecution would be successful in the new york criminal court and here we have surely circumstantial case this is very rare the only evidence of  possession is purely circumstantial and if you go through the cases from the court of appeals and from some of the lower courts it is clear that finding drugs in somebody's house in a tom in a room like this will not sustain a prosecution meaning that the case is alternately going to be dismissed now it is true that maybe equates out and maybe that the prosecutor takes a shot at it but if you look at the criminal court judge in this case he really lectured the district attorney about this and said look the dismissal of these cases right it arraignment you can't control who brings what into the house and that's you know he was you know talking this underlying new york law that says you can't have a successful purely circumstantial prosecution in less you can prove to a moral certainty that the underlying fact of possession is true and here to drug say i think that that's slightly different than what i'm saying what i'm saying is that this was a dismissal with prejudice and that is what distinguishes it from an ordinary facial insufficiency dismissal where it's not with prejudice here the judge said you can you know the case was dismissed it's the cases feel you have to appeal i mean this is a dismissal with prejudice and that's what sets it aside from the ordinary favorable terminations are excused from the ordinary facial insufficiency determination that was being real buns before and i would like to discuss the fair trial playing if i may because i think that's an entire nother set of considerations that are covered by probable cause if that's ok i can other couple minutes cause such calibrates he was cut off earlier so  as a matter of law meaning that the false statement that mr ashley was next to the marijuana was likely to influence the jury's decision making process now it doesn't matter that the criminal court complaint is admissible evidence because what ashley went to court solely to stand against the false charges three separate times that was never in teach in fact it was a demolished in the summary judgment motion and they said maybe it was even four times so i believe in that sense causation with the stablished as a matter of law and it was also established because this is exactly what the detective civil set in motion when he signs the false complaint and said it and provided it to the prosecution knowing full well that it was going to the court that was the documents that was hanging over mr ashley had for all of the court appearances including the admission of knowledge about the mistake or a mistake i mean i think to address it is to say that your honor it's exactly right that by providing this instruction and this really goes into all of the problems the materiality instruction saying that this essentially telling the jury that a fair review of the evidence is to say this was the type of is fundamentally wrong in fact our position is is that materiality should have been charged to the jury by saying the statement must be material and that has been established as a matter of law just like we do lots of other elements of claims like saying that the color of law element is been established as a matter of law and this was in fact specifically requested by trial counsel and because of this uncertainty and the fact that they charged the jury with materiality even though that wasn't really in question defense counsel jumped into  and said that the criminal court defense attorney quote ended his client's claims when he admitted that the criminal court complaint was inadmissible now this is squarely against the law and in fact the it doesn't matter that the criminal complaint is inadmissible the fact that the you know detectives civil said i will testify to this by submitting it for the prosecution and so we have an inaccurate statement of the law regarding what your honor provided in even the fact which is where opposing counsel ended the simple fact was materiality was contested and went and when elements are contested and have not been ruled on by the by the district court it's appropriate to give an instruction that's not that's a distinction from for example the color of law example that got a counterpart to usually color of law stipulated to and that's why certain elements such as that are not included well still an appropriate instruction because even the opposing counsel even ashley acknowledges that a defendant must know that the information is inaccurate false and so but if you did he said he said that it was false so why wasn't that something that was not in dispute said i knew what was going on then saying it was a typo would be misleading wouldn't it were my all so your honor it's important for there are multiple statements that were at issue at the at the trial and  that texas civil conceded on one statement but contested the accuracy of the other statement which was the description of what mr ashley said when he entered the apartment and so it was important to give instructions that covered you must decide whether they were material or not agreeing with you for the moment that materiality is an open question with you and i'm inclined to agree but but separate effective civil understood that to be a flight discrepancy and the complaint and so i've got that that was my draft that was referring to but to get to the to get to the nd point with regard to the instruction if if that's the case your honor then there would have been no prejudice to such an instruction and in any case and this this court is charged with looking at jury instructions as a whole and judging whether that where ther court is clear that to show materiality in these fair trial claims be the evidence that the information must be likely to influence the jury's decision and this is an emphasized multiple times for example  here the criminal complaint which contained that one sentence could not go to the jury the both be detectible himself testified and if not does it doesn't matter whether you go to the your your not so so i would read i would answer your question to a st it has to at least impact the evidentiary record that would have gone to a hypothetical jury then secondly i would say even if in some circumstances or in some cases you could point to a criminal complaint and say it's possible that was affected a hypothetical jury's evidentiary record here this civil jury had such evidence that that would not have done so here they had the testimony of detective civil knowledge in that that was not an accurate  that yes your honor i would say that statement is still illegal one that uncontested that mr ashley was in fact arrested twice in that same apartment i think less than six november reasonable doubt all the cases to which he cites are in fact after trial and a concern and ultimate disposition of the case once the full records and put before a jury that's not the standard that should be applied here just turning returning briefly to the fair trial claim i'll just point out that even if the trial record and the jury instructions were not sufficient as they were that mr ashley claim would also be foreclosed by both the man well decision and the madonna decision from two minutes every pottle thank you your honor just at the outset if you would like additional briefing on that issue it's currently on appeal it'll be fully briefed probably by thanksgiving in smalls the city that's twenty c v one thousand and ninety nine dollars in the circuit and it is that issue is the only issue on appeal so there's forty pages of actually pretty thing on this exact issue but moving back to materiality you know i think that this established as a matter of law and here's why if you look at the circumstantial evidence instructions you know they really can't make it by just saying that maybe this was space at one point but he wasn't there and somebody else is next to the drugs so if they went to trial on the original criminal court complaint the district attorney's opening statements closing statement and a significant portion of their direct mr civil would be about finding the drugs to mr mr ashley so i think it's really in the story i could i i could hear that a significant portion would be about what if they went to trial on the criminal case on the original complaint the fact that mr ashley was next to the drugs would have been part of the opening statement detective civil direct and the closing statement because they needed to overcome the circumstantial evidence burden so i think to say things there's the fabrication that we've been discussing and then there's safety and alleged statement that mr ashley said you know this is this is what happens when you let strange people into the apartment now neither big charges could be brought again if you look at this case and what the judge actually said on the record this was a dismissal with prejudice the da had lots of options to fix that the facts really showed the detectives civil wasn't being truthful and the case got kicked out so i think it's a dismissal of prejudice they were told that they didn't like that they had to appeal not that they had another chance to and then to bring charges again so that is on the merits the medics they were both my clients and finally going back to the probable cause analysis one that that tip doesn't appear in the summary judgment records far as i can tell i just reviewed fifty six point one statement it was a part of the defendant's moving papers but more importantly it doesn't show up in the words application and it doesn't show up in the district attorney's notes that you have and the district attorney sits down with young that there are over the phone and writes up the complaint based on information provided and they take notes in the process and none of the evidence the detectives civil relies on them not the tip not being the quoting not the statement you made none of that appears in the district attorney's notes and i think that really does cast doubt into whether or not what detective that will be saying is accurate then finally on probable cause i'm sorry go ahead please please finish start sunday on probable cause mr ashley is testimony this is testimony after the fact this is information d provided after the fact not only after the arrest but after the criminal case was over and you cannot rely on that for a probable cause determination either with malicious prosecution or false arrest we have to