as well if either of my colleagues or i are asking you questions and the time has run out please finish answering the questions even if it's a hard question you can't say my time's up and run back to dear to your desk but on the other hand feel free to  finish answering the question if we're if we're in the middle of a because i want to make sure my colleagues have an opportunity and i to have all our questions answered because we want to make sure before we decide your case we've asked all our questions so good morning erred when it allowed the government to prove alleged probation violations against mr cha by introducing hearsay statements of the alleged victims of mr ties conduct his wife and mother in  law obviously this case involves the commuter simmons right cause weighing test in terms of the introduction of your salvation violation right yes so on a probation violation we're not talking about the exact same that we're talking about in the trial so certain hearsay can come in but depending on analyzing it and i notice that the court mentioned kmita but also did a confrontation analysis is well right yes so the confrontation analysis is actually is more advantageous to you but under either of those the court went against you correct that's correct and you know even if the hearsay is otherwise reliable and might be admissible at trial the court still needs to conduct the right cause balancing evaluation of the hearsay right so i'm understanding from your briefing is that the judge satisfied herself maybe  fear i don't know if it shows and i don't know if it shows anything having to do with fear what i intended to begin with was actually by going to that the cause analysis and what the district court it's entire analysis of the government's good cause and it's written orders two sentences and the court says on page eight of the electronic record the government has shown good cause for denying the defendant the right to confront ms lie and miss low at the revocation hearing which is that both witnesses fear for their safety it's not a case of mere inconvenience or expense but the altogether unfortunate familiar difficulty of securing testimony from victims it's a pretty classic case of domestic violence i mean anyone that's handled domestic violence cases knows it's not uncommon to have recantations after you but and the nine  right to get to the hearing so your argument is we don't have a record about how whether she was frightened and still frightened and willing to testify then is that right yes ok so because i i done a lot of work with domestic violence as well as that former state court judge so that that seems to be you know very well established i was looking here to see whether there's a history of domestic violence as was with the judge aware or told anything about whether this this couple had a history well what the person in this case who apparently spoke to you sly the wife was the pretrial services officer we know the probation officer never talked to her apparently they usa never talked to her and when the probation officer when the pretrial services officer to talk to ms lie she said this is never happened before so who was it the talk to her when he was getting going to get out of jail because i think there's the nine hundred and eleven tape and then there's the statement that you just referred to and there's also a contact made to her when he was going to be released from expressed some apprehension about having him come back home she was concerned who be you know angry with her because he had spent a week in jail who was that contact that was the pretrial services officer that you just said the pretrial services offered hadn't talked with a probation officer had all spoken to my see in this case is you can't have a blanket exception for domestic violence cases you can't say in every domestic violence case or alleged domestic violence case we're going to say the government doesn't have to call the witness or the victim or the alleged victim because we know that in some domestic violence cases or a lot of domestic violence cases the victim is fearful of her attacker if the government rely on the marital privilege to not as a reason for not having called these folks or pinning them the government at the july th hearing which was the the court apparently didn't rely on that because it's not in the order and we know that the marital privilege adverse spousal testimony privilege doesn't apply in this situation because it doesn't apply when the spouse is the victim of the alleged cond let the mother in law i forgive me going to have that will get it when i'm done so why aren't you just asking us to apply the standards have this been a jury trial i mean obviously it's a probation violation it's a different standard  and there are different rules that apply i mean and that's what seems to be unfortunate for your client if this were if this had been a jury trial and the exact thing thing had happened your arguments would be stronger right i think my arguments would be stronger but what val devious says is without the talks about is hearsay exceptions and why in this context we don't just say this falls within hearsay exception so we're going to let it in which some some circuits do say that but this circuit very clearly does not say that and the reason why is there are additional protections in the jury trial context that don't apply in this context there's this is a prohibition against introducing testimonial hearsay there's a for a one for three balancing test so in this case if this was a jury trial the judge might say yes we have this nine hundred and eleven call but we also have statements from the person who made the nine hundred and eleven call subsequently prejudicial or it would confuse the jury if the jury's not going to find out that this person subsequently made recantations of what happened nine hundred and eleven call and more importantly the defendant doesn't have the opportunity to cross examine the person about the reasons why they made those  but i think we're missing a few points that we need to focus on in this case what if one thing that maybe gets a little bit lost here is that the number eleven call is hearsay as many hearsay exceptions are but because it is not a testimonial under davis versus washington in a trial setting there would be no confrontation i have to go through a balancing test and commute and so the question is let's say we assume we agree with but you would agree that there has be some showing a good cause on the other side of the equation when you are are you saying that any call under these circumstances would require no justification or no showing of good cause on the part of government i believe that we win either way but i think that there is a good argument that we don't need to do the balancing test here i'm not sure that matters because once we do the balancing test the governor when he says matters to me what is the reason for  guaranteed right of confrontation against the government's good cause for denying and i can see the absolutely that with respect to the police reports there is absolutely a constitutionally guaranteed right of  go forward as my adversary points out it's not clear to me from velda via that that necessarily applies where the admissible hearsay is also known testimonial mentions to say to follow up on chance question you know you really are advocating what opposing counsel said why would there be a domestic violence exception and that's really what you're asking for because that's the way that's going to play out in all these cases where i shouldn't say all they'll be a common occurrence where we have this domestic violence cycle which is really and we've acknowledged a domestic violence incident and then a recantation that's how that's going to play out and that's really concerning to me he makes an argument opposing counsel makes an argument about the recantation that i thought was noteworthy and that is that one could recant because one is afraid and has been a domestic violence victim or one could recant because one has as you know falsely testified and even either way that person could be frightened in the aftermath so i'm i'm concerned about that you could i get your response i have no dispute with iran or that under some circumstances and one has to look in the case law is clear about that at the specific facts of this case i do not believe that there is a domestic violence exception what i believe is that the facts help i don't think the reliability of it which will cause my hang up that it's the government has to under commute you know this what why aren't we bringing this person who's local we know right where she is and there's two of them by the way when that doesn't begin to have a marital privilege why aren't those folks being subpoenaed to testify two months later there are essentially two reasons in this case and one is the reliability and the case law is clear that that is  there's there's no evidence in the record of fact there may have been but there's no evidence of the written record of a history at all of this is the way that the record reads it appears as if it came out of nowhere what  unavailable only in the sense of unwillingness we know that and i shouldn't say it only that the the both of these witnesses were clearly unwilling to testify in the revocation he me that once they have in fact recanted and we have nothing in the in the record that indicates that that's not the case the government knows that if the government puts those witnesses on the stand they are not going to what that's fair but at this point since we have met our brady obligation to disclose that fact to that that they recanted that they will not to the best of our knowledge support the original story at this point the witness is available to both sides the the what we have is a situation in which we have a highly reliable initial statement based on all of the circumstances and an unwillingness to testify on the part of these witnesses i guess i guess the whole thing based on what my colleagues i mean we don't discuss these cases before we come in so it's like i i they express what their views are or can be hypothetical with respect to the police report she did express lee make that analysis with respect to the nine hundred and eleven call she did not articulate it because she understood it i assume that she did that silently and she recognized the the importance of the reliability of that nine hundred and eleven call the fact that there is no confrontation right with respect to that now is there anything in the record that shows with what words were made to secure the testimony of either ms lawyers other than the the fact that there was communication with ms lies a tree there is no there is nothing in the record to my knowledge that indicates that the government passed understanding that these witnesses have recanted there's no indication that the government continued to pursue their testimony that we don't have anything for the mother in law  thank you obviously i'll be brief so i want to talk a little bit about the reliability and i want to call because i think that that really segues into why confrontation was so important in this case part of the reason why we're saying the nine hundred and eleven call or people are saying and i want one call is so reliable because you got to listen to the call you get to see the witnesses but you get to hear then you get to see their emote hear their motions you got to hear exactly what they said now imagine that nine hundred and eleven call instead of getting to listen to it horribles that didn't happen so what you're saying now what i'm saying is that's what we have for the recantation we have an e mail from a prosecutor who is biased and the judge is saying i'm finding the nine hundred and eleven call credible and i'm not finding the recantation credible based on a cold record because mr chai never had the opportunity to confront these witnesses to have the judge see their demeanor when they testified he never got to ask them any questions about court's error i don't think mr chais obligated to thereby to then cure the court's error by calling the witnesses that the court allowed the government to refuse or not affirmatively on the government to satisfy both sides of the commute yes