please the court samuel walk on behalf of santa moseby i'd like to reserve five minutes we will grant you the mistake that the trial court made in deciding whether to admit what i mean by that is instead of admitting the recorded statement and letting the jury decide whether or not the statement was trustworthy but judge decided himself whether or not the statement was trustworthy as to why the record statements should have been admitted on the wall a little for number one the statement was a statement against interest number two the statement was not offered the most number three there were corroborating circumstances and number four as i said it is the jury's role ultimately to the charming trustworth question that the court resolved in such a way that the statement did not come in the court resolve that question in the panni i was favor the court did did find that that that i don't think there's any import to that to that the fact that he stated it was not this is i mean why doesn't that go to the trustworthiness i'm puzzled by your opening argument because you say that trustworthiness is a matter for the jury but isn't it true that rule eight zero four b three specifically says in subsection v that it's supported by corroborating circumstances th clearly indicate it's trustworthiness right but the operative the operative words in that sentence that you read was whether the statement that the statement whether they are corroborating circumstances the operative terms is not whether it's trustworthy if you have corroborating circumstances clearly indicates it suggests that the statement is trustworthy i think that's that's a bit of judgment i'm i'm asking you the threshold question which you addressed in your opening argument namely who decides as i understood your opening argument you're saying that this is for the  challenging you on that because as i read the rule it seems to suggest that this is a gate keeping function for the trial judge in the first instance before we get to the jury is that wrong well the good keeping function is for the judge to determine whether there are corroborating circumstances whether they exist right in here did the trial judge not say that the overwhelming weight of the evidence that the circumstances were that there were four actors involved at least four actors for example if the evidence had shown a lone gunman right then perhaps the trial judge would have said well there are sufficient corroborating circumstances to allow this paniagua theory to commit but as i understand it the judge said well this there's no way to reconcile this man theory with what we know to be four shooters in th case right right and what i'm suggesting in terms of if you read the rule if you if you and if you appreciate it from the perspective of the right to a jury trial you will you will recognize that what the rule the gate keeping function is for the judge there to sort of gate keeping function and to keep it keeping functions one to the time and whether it's a statement against interest that if the statement is a statement against interest that goes to the trustworthiness of the statement but the judge is not entering into a weighing of the evidence to determine whether or not the statement is is trustworthy he simply looking at the record and is that evidence that this statement is a statement against interest yes and then you ask is it supported by corroborating circumstance now that the judge has to make that designing and what is the judge who was wrong in this case to say that there's no way to reconcile actors with the lone hitman theory i'll tell you exactly why you are because the judge entered into a weighing of the evidence awaiting of the evidence is the role of the jury the judge should simply have looked at the evidence the record and the term and just like when you when you look at whether there whether it's a statement against interest you don't get into a weighing of the evidence it's a statement against in clearly support its trustworthiness lies for the judge to consider and whether to admit it or not doesn't that put the burden on the judge to determine whether the corroborating circumstances  clearly support the trust absolutely not your honor the judge here is determining in this case the judge determined whether the statement was trustworthy are not so and that's not for the judge to do what the judge will say that that is the function which in fact does do i'm suggesting your honor that that's not what the rule sets the rule requires the court as a gatekeeping function to determine whether there exist  testimony has to be considered in evaluating the corroborating evidence is it consistent with what we know about what that evidence that you're referring to your honor is aren't that's the role you but you seem from the start to be trying to turn this into almost a seventh amendment issue of a right to a right to a jury trial when you know he says on eight o fo b three have introduced a totality of the circumstances element to the equation that the trial judge is to use that's classic weighing of evidence is not right and i think the classic weighing of evidence that has that has gone on by the courts most of the courts make the same mistake they weigh the evidence as opposed to simply perform the gate keeping function of determining whether or not there's corroborat circumstances and then let the jury weigh the evidence that's classically the role of the jury to see that my time has expired you have or you have rebuttal i misspoke a moment when i was referring to the constitutional issue i assume that you were turning this into which which to me makes it sound like you're arguing a fair trial issue but we'll hear you again on on the bottle so thank you very much the question before the court is if it's an evidence review issue yes it's abuse of discretion and so the question then becomes whether as the court has discussed whether  were certain if you will representations that were made by mr moseby than counsel and when the court actually the trial court actually reviewed the tape it became apparently clear to the court that what was represented on the tape was really not what was is i'm sorry is that a fire alarm