for one for evidence rule for one for says that in a child molestation case the sex case then you go to these other purposes and you look at these other things and  getting a prejudicial amount when they keep talking that it needs to be said once as to each of the girls the two victims and how many total that actually were admitted i guess that the question should be w admitted there's quite a number i can count of there is that about right and that's why i wanted to go through that because there's actually quite a few more if you look at them when i was when i did my brief unfortunately i listed the ones that were not litigated but i didn't list the ones that were litigated and word made and then i contend were improperly admitted so we have with samantha who had the one count this what we have is in that we had touching on the past which was the charge defense but we also have the putting on of clothing being pushed down and sat on top of on bed which is like a kidnap which was big deal with the clothing i didn't understand that my my thought was when there are a bunch of kids people often ask you to try and other kids clothing through see if they can avoid buying new clothes because your clothes  her put on these clothes and so did the other girl and had him walk around and he would stare at her with the testimony of him and he would stare at her and then he took her back to the bedroom and that's when we have this allegation of kid yeah and in fact there were a lot of kids here but this is about a much younger child clothes being put on and so the allegation is that he's got skin tight clothes so he can see her form it's a little hard to argue if you look at how the government is arguing we have all of this mountain of evidence coming in and you have the blending of all three and the argument of all three girls they saw three girls that you would think  but if i can go back here we have a number of other things we have the edition we have three and then why do you think i want to rape you and that  said you can't bring in without talking to the court first and asking just brought right in followed by the forgive me fuck me which wasn't litigated we have the funneling of  time it ever came out it was ever said and we found out later on page four four and my index that the prosecutor knew about that ahead of time the generic killing what you refer to as generic hitting came into i have some difficulty so the testimony i couldn't understand what the problem was actually one of the problems with the o t and forgive me one of the problems with this case is that we had so many surprises coming up at one point the this was coming and so i'm asking you what is the challenge exactly the challenge is that this was not was not let me get ahead of time this was not clarif my understanding is a couple may mean more than two but several popped up during the trial my reading of the record what it was that she excluded that evidence that mohnish the jury not to consider in the trial moved on is that not granted the we also had the instan we mean we normally assume that when something like that happens in a trial when an issue pops up and it shouldn't be there and the judge immediately says that's out of the record turns to the jury and says you're to disregard this our case as we assume that the jury understood the instruction and followed it and didn't consider that evidence isn't there or that is the case the reference to after all why did you think i always think i'm going to the extent counsel can anticipate evidence that may raise the legal questions the questions can be answered without the interruptions but when you make it difficult for the jury to follow the evidence but  many or most evidence for your issues are decided as they come during trial and you can eliminate motions orders are often changed during trial because context changes you understand what i'm missing i just with a whole litany of laundry list reasons why and then four eleven the problem with the four for all four b is that it was meant to be brought in for any of these number of different things but when you look at some of the closing argument it was never argued for that it was argued instead as propensity evidence that what she said is these children were molested and abused over a period of time they were molested mean the ones that you know about and argued about before the  ways judge and i well it does give me the opportunity to say well you bring up things later we need to have more and more of an accumulation of bad acts being brought on in in the absence of something like what judge hawkins described in order by the judge saying either the bad act either the prior bad act is advice to pass on and ruled upon pretrial or doesn't come in in the absence of that it strikes me as totally out of traction of all provided that it wasn't litigated in advance provided that it doesn't otherwise fall afoul of the rules of evidence i'm thinking supposed intersection collision no skid marks described in the police report we spent testifies on the witness stand there were skid marks says how long they were in th pictures that somebody was speeding crossing center line or something and my thought was always there is no evidence three objects and if there is an objection it's going to be  overruled and the policeman can be cross examined well how can you remember that now since it wasn't in your police report why is this different what am i missing this is different for several reasons i know my time's past but i want to answer your stomach bouncing incident ons stephanie if you look at the lane by her and reaching between her legs with stephanie and if you look at the watching pornography siniora none of those are like first of all like the other charge tax so they don't meet that let me issue second of all what we also have is that under four one for we also have the problem did this happen how do we know these happened without a standard of proof of course we have a greater more difficulty the standard of proof issuing and i know that since january you've hardly heard that without the word booker in the same sentence but the standard of proof issue that we had here and that i brought up is that what we have is not why you are instances prior offenses but same time same persons very weak evidence on either side just these allegations of the girls and other allegations being used to bootstrap each it's the same person the same offense rather than a prior one then you don't have satisfaction of the word another and for fourteen a correct they should not have been a minute well if you don't have a mother in four fourteen a then the disclosure requirement of four working wouldn't apply the another act these are the same victims but these are have these acts that i'm talking about are happening at different times over about a one year period so they aren't all happening necessarily at the same time it's not all these things happen one day here this happened here this happened here this happened here is the charge defense here this happened some of them are not even crime or some of them are subsequent and the prior notice i think matters a lot in this but in any event the four one four issue problem then is the necessity of this evidence what is our necessity when we get to the standard of proof and i think the more interesting issue for this is should there be some sort of standard of proof other than just the implied huddleston standard which was imposed in this case who are the  a number bad acts with very little proof and these girls all saying them these girls have been together all saying them around the same time we have  there is exceptions for clearing convincing and beyond reasonable doubt those standards may be necessary to satisfy that evidence coming in just in terms of booker and i'm alive three standards we don't have set yet nonetheless for four valving allegations of child molestation the danger which is recognized in the rule of recognized in cases is that the jury will go back in the jury room and said well if he did it before he must have done this and that's impermissible and in that circumstance even though judge murkier may not have told the government that she wanted all of it to come out before wasn't that implicit in what went on with the motion imminent shouldn't the government have disclosed everything you know your honor the district court made a very clear and conscientious ruling wasn't the there and it was a bit of a geisha on the part of the government to bring to judgment years attention prior to trial all of the known prior bad act testimony it wanted to rely on the known that evidence of physical abuse that could go to the issue of fear whether or not the victims were afraid to tell was agnes temple and judge were gear to find and introduce additional acts that would come under those laws no you are not disclosed to the defense no your honor and in fact as the record reveals the believed that the information had been ruled dime but on the other incident it was a clear surprise to the prosecutor and she even ed acknowledged on the record that that was a surprise she did not expect  you have the incident of your opponent mentioned an incident that was allowed in was that one of the ones that was not objected to sorry i don't remember which question the prosecutor and the prosecutor expected the witness to say because he abused me of what he did to me not what he did to my older sister and that w abuse of i don't like dark well because my older sister and this court knows that in a trial everyone is surprised from time to time at what the witnesses come up with we never really know what they're going fourteen and the district court has specifically ruled that these prior bad acts were at miscible alternatively under rule four fourteen but also this court must remember that of these three child victims at the time of trial the oldest was just fifteen and act the time of the offenses of which the defendant was convicted the most serious being sexual intercourse with a ten year old child so we are not talking about adults who can't pause before they answer and think in a way what they're about to say and necessarily follow directions we're talking about young nervous children and the court is well aware that even seasoned adult experienced adults would get nervous on the witness stand under the pressure of such an incident but we we have clearly more than this unsubstantiated in you wendell that the defense is trying to argue here on appeal we had the victim witness this who testified themselves this court has held that if the witness is testifying that that because you had child victims and as this court has held when you have child victims with limited cooperation that don't believe that if you help a little bit on the interaction here between help me on the interaction between four and four and four fourteen certainly as i understand it the judge said i don't have to decide burden of proof under fo fourteen because i'm letting it in under four or four and there are still some for fourteen disclosure deadlines i'm a little confused about how to put it all together ok first  be your honor so just that answer the question clarified now under for the prior sexual bad acts yesterday what's controlled by that fifteen day deadline and for fourteen and what isn't your honor all of the evidence all of the prior acts which the government wish to use worst admitted to the court and to the defense in writing in a timely fashion the government did not violate any of the to do about the surprises no surprises still fell under the rulings made by the district court there was no violation of the rulings so therefore the government would submit that those  so if i understand this right the surprises come in under four of four yes your honor that's correct under the court the district court rulings they would have fell under the why wouldn't the earlier there were five instances that the defendant ways this on appeal three of those incidents there was no objection to there was an objection and cautionary instructions were immediately given to the jury and they were struck from the record and this court held under us a lot to say that the cautionary instruction is the preferred and it wasn't disclosed fifteen days in advance and the defendant object that a trial that would have struck and told the jury to disregard that is correct ok that's correct attracting and that were brought in which was the halloween attempt to find a brass incident the threats about breaking legs watching pornography  every single thing out of stephanie's mouth was introduced for other bad act purposes all for five things the second thing i wanted to mention is the district court did not let in prior bad acts when there's only a child stay so is because you have some certainty that prior molestation occurred what we have when we're just doing all these allegations were repeatedly being molested and finally i do note that although the children were getting nervous and and came out with unexpected things time after time after time those things were very prejudicial