crash were testimony and while the supreme court declined to give us an exact definition of what testimony only this we know the testimonial features at least two actual hits both of which are clearly here we get testimonial i mean i guess it's more than just hearsay because hearsay would embrace you know offhand remarks things that the supreme court told us and cooperate that wouldn't be embraced in the definition of testimonial but i think that when we're talking about a confession of the defendant who's in custody talking about the historical narrative of a crime that has occurred it would shock the court in crawford it would shock the framers it would shock all of the historical precedent to say that the helpful for my position were taught rush to find to be a government agent but i don't think i'm going to get that finding so i think that it is true that a statement is necessarily testimonial if it's made to a government agen investigating a crime that is already completed and you know it is if that were the case we wouldn't be talking about whether this was testimony or not but just because as is always the case that a government agent investigating a crime means something is testimonial that doesn't strictly defined the parameters of what constitutes testimony as i said in my brief were the tests that simple i assume the stream court with a told us that you know at the end of cooperate they say that you know we're going to leave the exact definition of testimonial for another day but i think it's interesting that within the historical precedent cited by the court the fenwick case the pain case the trial of some walter raleigh we're talking about the civil law the with the of the admission of evidence is what the supreme court was concerned with and proffered and it's hard to see the statements of mr taylor to mr rash being analytically different than a deposition or an affidavit taken by a party or an attorney of his own party and that's where the evidence would not have been admissible at the comp well i mean that's the exact sort of abuse that animated r relied on maddox and finding that you know that proper was going to be retroactive and i just want to quote briefly from that it's the prime primary object of the confrontation clause was to present prevent depositions or ex parte affidavits being used against prisoners in lieu of a personal examination and cross examination of the witness and which the accused has an opportunity not only of testing the reckless recollection and sifting the conscience of the witness stand but compelling him to stand face to face with the jury nor they may look at him and judges demeanor so they're talking about depositions affidavits that has nothing to do with the identity of the person who's taking the deposition e statements of george taylor are excised from the record and this whole case falls apart for the prosecution their whole theory on both murder that's not the test though he's not one of the testimony is important when there was  for the subsequent killing of george taylor so if you take that out all you have left are the statements of my client who consistently denied understanding anything that was going on and given that he was nineteen years old he was consistently under the influence it may well be the case that they had a real good case against shelby harrison they had a real good case against lisa james because of their the letters that were exchanged between them which is incredible backing of itself please the court scott taylor california get the attorney general i think it's inescapable the irony of this case which is that an appellant who brought a man out into the desert shot him in the back of the head without warning a man who was a friend of his now comes into court and complains that he has if he hasn't had his right to confrontation being that as it may the supreme court in crawford i think if they were looking for an example of non testimonial they couldn't find one more to the extreme of not has demonio then the statements by john by george taylor to his attorney in crawford they talk about the abuse that they're trying to correct were statements that were intentionally brought into a later trial without the witness being present the justices of the peace that did this were government officers and that's what they talk about they talk about government officers or other people to take statements with the idea that they're going to bring him into the morgue later and to be presented against the accused in this case we don't have a government officer we don't have a police officer the very broadest definition that you can take out crawford the very broadest is any statement where the declaring believe that the statement may later be used in an in some sort of litigation or proceed even that broad definition doesn't apply here george taylor never believed that his statements would be used they were given to an attorney in a privileged setting he specifically said it was attorney i never want anybody to find out about this given everything he said  attorney and given that broad definition the broadest definition of the formulations that the supreme court gave us it is certainly can't be deemed a testimonial statement now i want to talk briefly about it and urge you to apply forfeiture by wrongdoing in this case where else i mean this again this is the perfect case for this we have a factual finding by the jury as the circumstance  only get to that issue if we determine he states his testimony that's true or you know which came first the chicken or the egg i suppose you could come to the conclusion that he's forfeited any confrontation right by his wrongdoing and therefore not get to the issue of testimonial i think both of them are very very strong issues for us but here you have a factual finding by a jury that not only did this appellant kill the declarant but what i see what you're saying and then sort of goes the harmless error analysis i mean jumping over there for a second one thing is the murder of george taylor his statement did nothing to help that in terms of the proof i mean we have this terrence bledsoe who was there at the time and watch the appellant shoot george taylor in the back of the head we had all these different statements and different evidence that connected them george taylor statement about the kevin james murder had nothing to do with his own heart and even if this court found it testimonial decided not to use the forfeiture by wrongdoing it's certainly harmless error on the wre standard in terms of the murder of george taylor because that statement did nothing counsel suggest that it provided motive well there's certainly plenty of evidence to show that that group of people was involved in a conspiracy in the murder of kevin james so when you have an eyewitness that and all the ballistics evidence and all the statements by mr jensen it's clear that the statement of judge george taylor to his attorney had nothing to do with the proof of his of george taylor's own murder but just to go back to work with you my wrongdoing there could be a case where this should be applied more we have a factual finding that the declarant was killed because he was a witness we know the gents and shot him in the back of the head based on evidence other than the statements or taylor and in proffered the u s supreme court has told us we have set the doctored of forfeiture of five wrongdoing we've started a number of federal cases that accept that so given all that that california exception is a hearsay exception it's not a confrontation clause exception the confrontation clause exception which proffered steps and other federal courts of accepted is one where confrontation clause is waived if you forfeit by wrong doing and i think some of the elements are that you had to have the intent to stop a witness from testifying that you in fact did commit the murder all of those factual findings  already made that made here the the evidence code section that was referred to by counsel and his reply brief is a hearsay exception which allows statements to come in if you meet certain qualifications and you go down a list of different qualifications that allows for a hearsay exception certainly i believe if you meet that hearsay exception you would also get the confrontation clause exception but this confrontation clause exception for forfeiture vi wrongdoing is much broader than that and you don't have to meet all of the procedural hoops that the california statute requires no what's the what's the history of that issue this mother was raised in the state court no it wasn't  where was it raised it was raised in the district court you know it was raised in his court so how do we get it in other words you know we're not a trial court and we take cases that come to us we look at the record that comes with them and it's pretty tough for us to pick up a brand new issue that nobody's ever raised before well i could see that point your honor i guess the point that i would make is that the first time crawford has been raises in this court as well so it seems to me inherently in funfair that you retroactive so it is not really a flick of all but here we have a situation where for the first time appellant is asking you apply crawford and apply it retroactively it seems to me inherently unfair that for the first time if you're going to apply crawford retroactively that the respondent one be allowed to bring up forfeiture by wrongdoing which in fact is a defense or a waiver of the confrontation clause under crawford movie that we can if we needed to  case what they talk about is they talk about the evil that they're trying to get at is a government intentionally going to a here say the clerical person a witness taking the statement with them with the eye towards bringing that in later when they talk about all the different things they talk about different trial testimony preliminary hearing testimony testimony before a grand jury and police interrogations they also talk about situations where the re lease interrogations applies because they say the justice of the peace which is a government officer than a police officer is just the same sort of government officer as the justice of the peace so it goes to the heart of that but they also recognize that there's a whole group of but statements that are going to be non testimony of the kinds of statements that were that the framers didn't intend to identify as statements that they didn't want to use here what you have is you have a statement made to an individual forget from home and the argument about him being a officer of the i don't think that holds any water if you have a private person in a setting of a perk of in custody where it's privileged and it can't be told anybody it could never be used in another in another proceeding except for the fact that the declarant winds up being killed by the appellant in this case so what they talk about in crawford is you know there's of punch a different formulations and clearly they haven't given us much guidance in that regard but they go from justice scalia and justice thomas and white talking about only formalized statements to the broad range of any statement i think as professor friedman that talks about any statement that's that the declarant have is objectionably reasonably believes it's going to be used and for the proceeding even if you use that that formulation this way on the outside in terms of over inclusive it doesn't this doesn't apply george taylor under no circumstances would have thought that this would be used in the future proceeding and it's funny because even if you believe that mr rash was a government agent if george taylor didn't know that it's still not testimony because the broadest definition of testimonial is any statement where the cleric believes it might be used in the proceeding and clearly this knew that it would never be used in any sort of proceeding and it's not a government office or one thing i'd like to add here in this i think we've all talked about how ohio versus roberts this is reliable ok testimonial our position is ohio versus roberts the even apply i think there's a lot of language in crawford and from other cases that a follow crawford this says if it's testimonial it has confrontation cl scrutiny if it's not testimonial confrontation clause doesn't apply and you're really left to the state hearsay rules to decide admissibility and i would suggest that in this case where it's not testimonial you don't even use the ohio versus roberts reliability standard trial court at that point the government had every ability and incentive to argue for sure it did not mr de of jeanson appealed to the california court of appeals at that point the government had every villainy to argue for sure it did not get to the district court they didn't argue for food again the confrontation issue has been consistently raised by mr jensen now it's true to say that mr jensen did not have the foresight to say that crawford was in a come down the way it did however confrontation and now crawford gives this court the extension of what confrontation means so it's not a case to say that well this is really unfair to apply a waiver doctrine to the government as they couldn't h crawford well you know ultimately if we're talking about fairness in the context of a death we're talking about who waives what i mean come on a hades petition or waste pretty much anything they don't with strictly legal issue ultimately what you have here is the jury that convicted mr jensen of this killing did so in the context of hearing these are george taylor statements this is why he did what he did you know we didn't even at the trial court didn't make some initial and bledsoe in the vehicle and lot so i mean in terms of reliability he's got to be one of the least reliable witnesses you're ever going to see repeatedly said that kevin james was killed by jamaicans he said that oscar hernandez had killed george taylor he said george pulled a gun on shelby harris he said he knew where the gun was hidden but the police month there no one there i mean this case came down to two interlocking you know states and those are the statements of bledsoe and the statements