examination of a critical prosecution witness on facts unrelated to the charges but related to the witnesses reliability in the case in question now the reliability problems that were presented in those three  reliability in the van arsdale case the court explained further that the central question is whether the jury was permitted to accurately assess witness credibility and the question is whether or confrontation purposes the question is whether the jury if it had received the defense evidence would have had a significantly different view of the witnesses credibility now let's talk about what those reliability issues were in the cases because i think the reliability of that identification not biased against this particular defendant not fabrication of evidence but the reliability of the id the defense wanted to say this was an identification made in haste because the juvenile was afraid he would get his own probation revoked if you didn't cooperate with the police or that he might be a suspect because his probation was for theft in then ours are we also have a fact witness and the issue was whether that witness w cooperating with the prosecution invested in helping to obtain a conviction because the witness had gotten an unrelated charge dismissed in exchange for that cooperation in all then we had an entirely different situation that what the defense called a false cry of rape and what the defense saw as a consensual case the facts had to do with a relationship between the complaining witness and another fact witness the two of them in fact have been having an affair at the time and the defendant the complainant lovers half brother it's a bit hard to follow but the defense theory was that she had lied and accused a man of rape after consensual sex so that her lover would not find out she had slept with his half brother a very different type of deliberately lying the defense theory was that in that case we had a very young child who for reasons that are not apparent from the record had fantasies about adults performing sexual acts and it has such fantasies about her own mother which raised reliability questions in law joy almost inverse fact there had been actual sexual abuse but knowledge of the fact that this child had been exposed to direct sexual abuse herself would help to explain a slightly different situation but the same rule that governed each of those questions required the court to permit mr fowler to cross examine the complaining witness about the fact that she had previously made accusations against the mother's boyfriend for touching her crotch over her clothes while touching her in a way that the man acknowledged had happened but did not involve any genital contact and what do we do with the judges and i was the sacramento county superior court trial judges all men that if i'm going to allow this evidence then we're not going to have a mini trial within the major trial because it's not clear that there is some indication that a touching occurred but it's not clear that it was necessarily a false accusation and now we're going to have to ask this trial jury to go back and relive it be that prior incident in order to decide whether or not she was telling the truth you question raises two points w address in reverse order i'll start with one i think you were who could sing on which is confusion of issues and taking up too much time the other issue has to do with whether or not it was a false accusation and what that means and you would concede would you know that the supreme court has said even doing the shoplifting incidents because the girl had stolen from some stores he was allowed to cross examine her about that much less probative after as to her reliability regarding sexual matters but the same thing could have been happened defense lawyer cross examine girl did this happen did you say x y z initially and did you then we can't a few months ago find out what she has to say if she testifies differently than the documentary evidence the documents in this case bakersfield police reports and the transcript of her later revision of that incident could be used directly in cross examining her defense also sought to put on if necessary if she flat out denied everything and in his view was perjuring it i don't want to go on more than an hour and i'm not going to let mr hendricks testify we probably would not be here but he wasn't even allowed to ask the question did you you accuse one of your other mothers your mother our mothers other boyfriends of touching you in a similar way didn't you tell the officer in bakersfield this didn't you say more recently being interviewed that you didn't really think it happened like that after all that you maybe were exaggerating those are the questions that needed to be  yes the question i'm getting through is have there been a definitive showing that she had lied and i understand what you're saying had the court conducted a hearing outside the presence of the jury where that could have been determined we'd know the answer but as i understand what the trial judge was saying is depending on how she answers that question we may very well may very well find ourselves having to litigate the veracity of that prior incident and try and figure out whether she was lying or telling the truth well i think it's important to bear in mind that the theory that the defense theory about her unreliability didn't turn narrowly on construing her prior statements as lives meaning specifically he grabbed and squeezed my crotch four times that's not just fighting an accidental bumping that's describing a deliberate touch to her genitals she then later said he was flying me into bed that i might have thought bed when the child for this happened she said she did not see any such contact further evidence before the superior court that the initial allegations of the child were not accurate were not necessarily made up whole cloth but were because she had been previously molested and the jury knew none of this it would have been highly relevant to assess her reliability and the judge didn't allow her to go there and by not even considering under van arsdale the defense lawyer  policy considerations they may not trump confrontation rights it's when you have those considerations that the judge can exercise discretion in limiting the cross saying you need to stop now mr ross trials don't badger the witnesses but we have to let the jury know that this is out opportunity of taking on direct appeal to the u s supreme court precisely the confrontation clause question that would be an extension of old and davis the van arsdale we are now here being asked to second guess the california courts on a matter which the the supreme court has this confrontation clause rights are very important we take them very seriously but nevertheless we understand that trial judges must have broad discretion in admitting evidence and there's a number of considerations that he could take into account including such things as whether this would be a distraction to the jury because we're conducting a mini trial as to whether the evidence is not terribly relevant and so the trial judge seems to have conscientiously tried to have fit this case into those preexisting categories of the supreme court has recognized so what you're up against here is trying to demonstrate that this is not simply wrong which would be  was able to say ok we can prevent a mini trial here simply by limiting how long you cross examine her about the shoplifting incidents and they did so successfully but when it came to an issue where mr fowler had a confrontation right th know it's important that the presentation i hate be used to the california supreme court was based on the trial record there was no attempt to raise any new or any additional facts so it's our position that  he's right that would be you know the decision itself would indicate obviously the decision then supreme court could consider that as it shows i'm having i'm what what the way as to the prejudice here was of the prejudice that is to the victim was the prejudice to some other in arrest what was a prejudice here keeping proposition eight the courts have said that impeachment whether witness or a witness with a crime involving moral turpitude is proper and one of the one of the things in california absolutely no effect on the case involving mr fowler you have to get to the inference that the victim said something false about this prior incident otherwise it has no effect on the current case and i think that is one of the things the jury's going to wonder why we're here trying this seven year old case and in fact the defense theory was this was part of a hatter and that was touched by the tommy incident which was a genuine molests and so in order to show the pattern you have to show a very in fact there was a time the incident and there may be different ways of doing that but in fact you do have to show evidence of that so you have potentially a third witness involved or at least  witness is on a prior that similar charge she has exaggerated you saying that that is not as to what she saying similar charges just we just put that before the jury and let them let them work through that juries are perfectly capable of understanding what it means to be wearing blue jeans as opposed to a little summer dress because the trial judge has the discretion under state law  to determine that there was little or no probative value to the evidence that there is some danger of confusion of the issues that there is some danger and waste of time and therefore exclude the evidence and we think that the main standard is whether the the trial courts were unreasonable in their application of the u s supreme court precedent counsel let me let me ask a different a completely different line of question mr fowler was charged with sexual battery and with anno this incident he drove miss laura and engaged in sexual banter and some sexual discussion of porn graphic videos and how she might handle masturbation how what she might do if she was engaging in sex and so on with that conduct as to which mr fowler at mess be sufficient to convict him of annoying or molesting a minor a possible counselor that the jury didn't believe her evidence about him touching her but that it found that the evidence as to which mr fowler concedes this inappropriate discussion was sufficient to convict him on prosecutor never argued it and i've never argue never argued the theory that the sexual battery constituted the annoying or molesting now presumably the jury could could return a verdict on something other than what the there is that reasonable that the standard thrown in there and there's also a requirement of sexual intent that i believe has been read into the law by the california supreme court some time ago so normally that would immunize school teachers from from such thing henderson seems to think that if the trial court had permitted any cross examination regarding the prior exaggeration it would have thereby abdicated the ability to control any excessive cross examination or keep the reins and if things got out of hand in fact as regarding the shoplifting incident the superior court indicated it was perfectly capable of preventing cross examination for impeachment on collateral matters to get out of hand there to the defense had r effect on the verdict as necessary for hey this release i want to emphasize the course of deliberations in this case it is very clear that this was a closed credibility contest the jury heard evidence for two days and it deliberated for fo it came back half way through saying we are hung up on both counts and that is after having had mr fowler's testimony read and the testimony of both police officers which included testimony regarding contradictory statements that charlotte had given about m fowler after the incident with him they then came back on the friday of that week the case having gone to the jury on tuesday saying we have been able to reach a verdict on only one count that indicates that this was a very very close case and that the evidence and annoying does not is touch the prosecutor in closing arguments was using the lotion application as the basis for both counts with the conversation only a circumstantial evidence of lewd intent as to the touching a fowler in his own testimony judge by he denied that he had talked about masturbation or the video in that conversation he testified that they merely talked about her hand up with her brothers and in fact the defense lawyer was precluded from eliciting more details about exactly what was said on the prosecutor's hearsay objection and you know that's a whole other kettle of fish but the girl was allowed to testify he said this in the car i said that he said this i said that mr fowler was not allowed to testify as to what was said between them although he was able to get in the suggestion that he was trying to counsel her about sexual misconduct and very briefly as to the issue about exhaustion and procedural default this case w