one issue and that's the first issue in the case relating to the use of a closed circuit t v system to present the testimony of two of the children who were involved in the case  it's our position that there are two fundamental flaws in what happened regarding the use of the closed circuit system the first is that the testimony of the expert witness presented by the government in support of the need for this system in order to protect the children was inadequate because he was not properly qualified and did not present testimony that established a need and the second is that the district court did not make findings based upon objective evidence that made this necessary now i would note that when the issue arose and a hearing was conducted pretrial that the government's expert mr irwin appeared he was the only expert for either side he testified that he was a he was a licensed licensed in the state of michigan to provide services counseling services he was involved in a ph d program although the d program was geared toward supervising other counselors not geared toward trying to determine whether or not findings or testimony like he would give would be appropriate irwin said that he had testified one hundred fifty times he had never testified on this issue never this was the first time he essentially worked for a state court agency located in jackson michigan called  some point where his counseling services and his testimony would relate to generally child protective services issues and a very very in my point opinion very different type of issue than we had here just to get me oriented your your folks on the close circuit t v or testimony point but you're not challenging marilyn versus craig i mean i don't think so it's it's not that you can't do it it's how they did it that's your own not exactly right it's how they did it's how they did it's not whether they had a right to do it at all my position is they had a right to do it but they only had a right to do it if they did it in conformance with section thirty five or not which was followed so let's say you're right about the evidence that he said he had done this a lot he hadn't done at all how did that what's the prejudice how did that prejudice things well at some point in order for the district court to even get to its own analysis the way i read the statute and and believe the statute needs to be interpreted for the district court even get to the analysis there has to be some initial showing from an expert that there will be damage and that expert showing needs to be based upon competent evidence and these be based upon persuasive evidence it needs to be based upon evidence presented by an expert who is qualified to offer this testimony this particular expert had barely seen these children he speed was very clear and very candid in talking about how heavy his caseload was and how difficult this case logos and how they had a full day and how he had taken over for someone else and i had seen the children and the is i could out there point that in other words he was an expert he was qualified what i'm really getting to is that an abuse of discretion standard terms what the district court did well i think that there's a component of that because oh but rather than rather than dealing with the question whether he should be allowed to offer opinion whatsoever i think my more specific argument i made below and that i think god and making here and i'm kind of pinned into here is that in fact regardless of what he said it was not persuasive in order to trigger further questioning under the statute so there year we're view is that until there's some kind of better evidence than you think was here from the expert the judge couldn't even on his own query the children about how they would respond or what their feelings were i think under the statute i think there has to be some expert testimony you know certainly there  something the answer the answer to the question your honor is yes the answer is yes i'm sorry to answer that simply the answer is yes there's got to be something more than what we have here because the statute says there has to be something from an expert now in this case the way i read the record i think there can only be one reading and that is this mr ron took a categorical approach that children should not testify in front of the alleged they use the term abuser because it doesn't matter whether it's in this case or a c p s case and state quarter of a divorce case or a custody case that he took a categorical approach and that's not what should happen or should have happened here his primary finding was that these two children needed one particular thing in this case and that was closure they needed closure well we're going to get closure which they were going to get one trial occurred and a verdict ultimately was was reached  they're going to get closure they're going to get it whether they testify via closed circuit or whether they testify live and i believe that he was  essentially there to protect the children in any way he could and in fact did that by trying to keep them out of the courtroom during testimony and that again not is not the key issue is it just to make sure i'm getting michigan law on in this process  from what i know about the confrontation clause part of this what i'm just speculating and assuming i'm curious what the usa will say is that this michigan procedure is designed to honor marilyn versus craig because maryland craig doesn't just say hey you can just get up there and say we're this child is doing this by closed circuit because we think they should you have to have expert testimony and so i guess what i'm interested in is to the extent you have an  expert that just automatically says this it does seem to violate state law but more fundamentally it would violate the sixth amendment i grew that i announced state law question which i can't answer definitively i think that there's a different standard that applies in these in these in these civil proceedings i think that the c p s proceedings and the other proceedings i've mentioned relating to custody etc are civil proceedings i think we're dealing with a confrontation clause issue here and the statute that follows craig and whether it's proper properly applied in this case requiring the use was it raised below to the trial judge that he said he'd done this one hundred fifty times and never done it  for what for what value it had when the district court moved on to talk with the children the children certainly indicated that they were going to have some problems telling their story that's not surprising in a situation like this but the way i read the record they never said that it would be more difficult to tell the story in the room that they happened to be sitting in when they were talking with judge than in what they referred to as the small which everyone knew was going to be a ctually the jury room for a magistrate judge located on the same floor so the real question becomes we know they're going to have difficulty we know it's going to be hard but what does the government need to show in order to the stablished that they can't do it in this court room in which the defendant is present and there was the way i read the record no evidence showing that they couldn't do it perhaps perhaps they preferred not to be in that room but that's not the standard the standard is would they be so traumatized that in fact it's unfair for them to have to attempt to give that testimony in the larger courtroom would they be so traumatized and i don't see evidence in this record that they would be so traumatized that they couldn't attempt to tell the story nor realize are some danger here if in fact an attempt is made to have them tell the story in the larger courtroom and and they're obviously so upset that you know that they can't go forward that there's a bit a bit of danger here but that was danger that the defendant was willing to seven two and it's hard to see those two cases is having the same analytical framework but one thing i'm curious about is whether the literature about the psychiatry of this kind of a trauma  testifying talking to police first is talking to a judge versus talking in front of the villain what the literature says and how much it's changed in twenty five years if it's changed at all do you know if there's anything out there i'm sorry your honor i don't know i don't know what with or don't know the state of it or what changes have been made i do know that here for example if there if it had been clear that there was clear evidence of potential trauma maybe that would become that type of issue to be come more relevant but here i don't think they ever got past the threshold good morning me please the court my name is shawn lewis i'm appearing on behalf of the united states in this case i like to respond to the points that mr graham raised the first being his challenge the qualifications of mr irwin first of all i would point out that he's waived that argument he did not challenge the qualifications of mr irwin below he did not challenge his qualifications in his lead brief he didn't challenge hearing about the challenge to the qualifications is today at oral argument that argument is waived beyond that it just has no merit there are no legs to that argument counsel suggest that mr irwin falsely was in this case cox's case but he had testified in his capacity as a mental health professional in those prior cases though about the sixth amendment requirements no or no when he circuit t v no and he didn't though in terms of his qualifications no it is not the qualifications when one looks at craig and then one looks at the articulation of the necessary qualifications in moses those qualifications were important they are is that the expert be a mental health professional one that two he or she have a particular training knowledge or experience in the field of trauma and mr irwin in his work and in his testimony dealt on a daily basis with children who are traumatized by sexual assault so that set of qualifications that experience is what made him qualified under the relevant standard because he had specialized training he had specialized experience with hundreds of children who had been traumatized by sexual abuse those are the relevant or you know i know we were required to follow craig but wouldn't you agree there's a little tension between crawford and craig i don't think i don't think there is because what we have in creg is the procedural safeguards of cross examination are still intact there are layers all you're missing is the confrontation well the word in the constitution it but there is there is as craig points out there is still confrontation i that the whole point is that it's certainly the ideal but are there other procedural safeguards like cross examination like under thirty five zero nine there being a two way video conference and then the additional layers of procedural safeguards in this case where even before testimony began the children were informed you can see mr cox there he can see you the screen violence the value of the testimony versus the procedural safeguards with the present the way you're thinking about it with a procedural unsing the value of the testimony it's a victim truth versus the procedural safeguards i e this form of cross examination that's the way you're looking at it that i think yes under craig understanding the court correctly under craig those of the two components there has to snow and i'm the reason i'm using the word balance is that's exactly the roberts framework which was overruled in crawford that was exactly the problem the the the framers did the balancing and they told us the best procedural safeguard was if you're going to testify against someone in a criminal trial the person to testify against has to be there when you testify trauma no trial well i think one craig rightly balance that and remains good law at this report didn't suggest in crawford that they were in any way undermining craig what it does make you wonder why the government felt the need to do it here i mean when  get two hundred forty years couldn't we left a few of these charges on the side so you don't have this funny procedure well i think that that really is a separate issue about whether  this pattern of conduct that the defendant gaijin whether there was accountability for it certainly looking back with the benefit of hindsight we can say the government presented a compelling case the government got a sentence that is going to ensure that he cannot harm any more children but we didn't have the luxury of that assurance going into it we had a man who had preyed on children for years and years who had shown through his conduct he would not be stopped and the government had to try to hold him accountable present the evidence to the jury we can see now yes we succeeded in holding him accountable but there was no way at the time to know that  and proceeding with those charges that the government applied it by the paradigm as established by the supreme court and established through the expert testimony the perquisites under craig is no longer good law if thirty five zero nine is unconstitutional and if children can no longer testify by closed circuit television then no the come over that's not quite true instead of marilyn versus craig protecting the children the government would be in a position to protect the children because the government could be the ones to decide whether this is worth it or not or we could examine what the psychological literature is and whether it's changed in twenty five years and i don't know i know what the literature says i'm not an expert but it's i won't say it's self evident to me because i would think it's quite traumatic to talk to anybody about this and it's there there are two points there in terms of the last one whether there's trauma involved in talk to anyone about these events that is true  younger went through any peel back the layers counsel mentioned the closure layer and judge john who went through that in a strip that away and said ok of course there's going to be some trauma related to the absence of closure strip that away is there still trauma here is there trauma that's just going to relate a result from talking about this sexual b s yes there is let's peel that away underneath those layers of trauma that are going to be inherent in any situation where a child's testifying about sexual abuse the court looked under there and said yes there is still compelling evidence here that the trauma that is going to resolve the significant level of trauma is going to be from testifying in the courtroom in the defendant's presence uncle was very careful and very thorough in making a record in this case to go through work through those layers of trauma get down to the heart the knot of what thirty five zero nine and craig is about and make he's does what he wanted to argue about so we'll talk about it but i've been baffled by what seems to me a big assumption in the case yes if you've been traumatized in this way and been victimized in this way it would be very traumatic to testify in front the villain if some really did do this terrible thing but that assumes the person's guilty that's not how we're supposed to do this flip it that someone's lying up that you can get a lot of psychological experts to say it's very traumatic to lie in front of the person you're accusing of something they didn't do but that's more traumatic and i don't know i don't think the test distinguishes those the test assumes the person did it that's what the test so i don't know i just can't we know scalia wrote one we know he dissension the other i find the frameworks completely at odds with each other this is a case where it would not have made a difference in my view american versus cra other way this there's enough here i'd be shocked and might not be a two and forty year sentence but i'd be shocked if this person would be in a position to attack anybody again so i don't know it's a head scratcher but it's above our pay grade were that if i could just hit a few of the points attacking whether or not that mr irwin analysis was i think counsel phrased it was not persuasive because he said mr owen had barely seen the children i mean that is simply not accurate i set out in my brief at the time that mr irwin spent with the children in fact he had started counseling these children for the trauma related sexual abuse wholly apart from any criminal proceeding or a civil proceeding he was providing therapy and it was only late in that in that process that he learned oh i'm going to have to testify which i would took a categorical approach for instance he mr irwin also treated child who who did testify at trial not with close circuit mr irwin said i think i think child two could testify in open court and in fact he did so it's simply not accurate that monsieur took that categorical approach and in any event judge on her very carefully again peeled through those layers and said even if in most  didn't take away the children's fear it didn't take away the nightmares it didn't take away the threats it didn't take away the difficulties they were suffering in school and at home it didn't take away the weak family support systems the cognitive delays that hold that call of factors that went into this analysis so might my final point unless the court has further questions is that counsel said there is simply no evidence that they couldn't testify in mr cox's presence and that is simply again inaccurate i would just know page two thousand and nine and two thousand and fifteen in the transcript where mr irwin opined very directly those children each one child one who'd done in his opinion testify in the presence of the defend it crystal clear same thing at page two thousand and fifteen with regard to child seven so unless the court has further question i would ask that the judgment regarding the first point about how many times during testified i pollard jives if i was if i misstated things i don't dispute at all that he had testified somewhere in some type of proceeding one hundred fifty times so i'm sorry if i was not clear my point was he had never testified on this particular issue did you raise that in the court only in terms of the persuasiveness of his opinion not in terms of his qualification to testify why well  because he certainly was seeing the children he was seeing the children there was there was no doubt about that the question was here i think i even may have misunderstood your complaint about him in the first place i thought your complaint about him was not so much the he doesn't testify about exactly this kind of stuff i thought your complaint was that he really didn't have the experience to testify about this kind of stuff and it seems to me you're backing off of that no i'm sorry your honor i'm sorry i'm not i'm not backing off at all on that has seen children he has seen different children he's made certain findings about those children he's made findings about whether or not they should go home whether or not they should be was certain parents whether or not they should live in certain circumstances he's made findings about what treatment might be needed to help them all of those things have nothing to do with the question of whether they will be there's a substantial danger of trauma if they testify so i'm not backing off that point at all i apologize i'm not not backing off at al was not qualified to offer that opinion here and i think the record reflects the fact that when he goes back and talks about his experiences about other chords he can think of one occasion particular never in this particular arena so i guess the real question becomes how what was presented to demonstrate that there was a substantial danger of trauma and i think the record is very clear kids didn't want to testify didn't want to testify at all they would have some problems but why was it any different in the courtroom as opposed to in a different in a different setting and i don't think that was ever established and