the statements being testimonial hearsay and the court's procedure was to make a preliminary determination and submit the ultimate issues jory for its determination and this case actually presents three issues as i'm sure you're aware although not briefed in order i think probably from a practical standpoint the court but most would address first the last issue which is  they also took shuttle shuttle advantage of her it's very possible your honor as i'm sure you can see from looking through the records there is no evidence that these any of the police officers who were present ever addressed her specifically and asked her do you want to talk to us again she was very clear at the end of the first interview on january fifteenth two thousand and three i don't want to talk to you anymore the interview was ended they did on her her decision at that point time transported her along with her boyfriend mr mitchell to the coconspirator whatever you want to call it is beginning the discussion and is saying let me have a chance what is a police officer to do other than to let him have a chance to talk with the police officers white's rights and i think she signed a waiver of one of the not she did she said we may sell it at one o'clock is that right on the fifteenth yes you talk that second interview notice for the second interview which is one o'clock on the fifteenth the fact that there is a five o'clock on the fifteenth will at that point time they did yes but later no they did not and what are they doing in your judgment wearing her down yes they repeat the question for now three times within the course of several days about the same criminal incident not this is different from mostly where the supreme court said all right you the police officers have scrupulously honor the defendant's right to remain silent by giving a new set of miranda warnings and questioning him about a separate incident so they did forty minutes they question her or question them in the room at five o'clock so about right it was about an hour about an hour what and during the course of that time she she did she didn't say i don't want to be here she didn't say like she did it one o'clock that i'm invoking my right to remain silent and in fact after about the first eight minutes she began to nod and answer certain points or clarify certain point that mitchell was making didn't she she did but your honor her testimony was later the suppression hearing that she felt she had no choice she had already told them i don't want to talk to you she simply custody she's kept in police custody she's transported back put in the room with her boyfriend and she's never they ask him on the record at the beginning the interview dave are you willing to give up he had actually invoked his right to an attorney do you want to waive that right the least any of these officers have time to be there for police officers w i'm sorry you know the words she is protected to the extent that the amendment protections are in term show scrupulously preserving her right after remain silent absolutely gone and in fact it seems that the government is trying to shift the burden to the defendant that when she was approached when her boyfriend said i want to be interviewed again and the police took them that she had some duty to say i don't want i'm still invoking my right to remain silent the law is  the supreme court has established once a defendant invokes their right to remain silent the police officers have a duty to scrupulously honor that right they cannot then attempt through someone else or through themselves to to wear down the defendant's  decision to assert their constitutional right now  currently district court the second issue is is the confrontation clause violated by the admission of mr mitchell's testimonial statements where he is available to testify because he has pled guilty and therefore way obviously you have to look at this police were interrogating mr mitchell and this lafferty to inquire about past events for future prosecution this was not response to an emergency situation as was present in the subsequent supreme court case davis and they were very clear that the constitution the sixth amendment demands two things an availability and a prior opportunity for cross examination mr mitchell for whatever reason the government is not has chosen or apparently chose not to call him as a witness but her sixth amendment right to confront him requires that he be brought before the jury and in fact the district court notes i believe it's in footnote for it lafferty one that there was evidence of mitchell or influenced by law enforcement as influence by law enforcement could destroy the adoptive admission there's no way to put that evidence without the opting to cross examine mr mitchell there's no way to even inquire as to whether this this sort of evidence existed previously if you had a statement made to someone who was a declarant who was in the presence of the defendant and the defendant doesn't say anything that silence would come in as an adoptive in the old days that that would mean well i guess you wouldn't either way whether it's hearsay or not you would you would you would say that if it just comes in because she was there it could still come in your honor under an adoptive admission if it's there's a little you know the government is attempting to use a legal fiction in the rules of evidence in order to allow this evidence to come in but in fact there's really no way around the reality that that is testimonial hearsay and that the supreme court in crawford is very very clear that you must have an availability and a prior opportunity for processing of a nation and that the sixth amendment should not be left of a guarantee of evidentiary law that is in fact what's happening with the introduction of mitchell statements before hearsay purposes or just to provide context i think it's quite clear they are they have proof beyond just the they are for hearsay purposes that she in fact was involved in the barkley of the mountain our statements here his statement i'm sorry well mitchell states mitchell statements yes they're not the government argues they're not introduced for hearsay purposes they're under introduced for the purpose of giving context to the adoptive admission of lafferty i think if you read the transcript of the joint interrogation it's very clear that these this is more than just contacts and what he was telling them way back when with respect to hearsay or adoptive admissions i think it's well established adoptive admissions has been  an exception to the hearsay rule based upon the determination which judge mckeon your recent opinion in the non presidential web case reflected the fact that an adopted admission is t lafferty testified at the suppression hearing and made no assertion that she was in any way course by mr mitchell that's only part of miranda the other part is right to counsel and she was never warned again she just placed in a room granted no suggestion that the boyfriend's suggestion she's placed in a room after having previously invoked her right to cut off questions she's in a vote in or placed in a room under it so it is a very bizarre maybe they do things differently in pittsburgh which he's put in a room the boyfriend starts talking she starts flushing out some of what he's saying and then we're going to situation with the trial court says that when it gets to trial she will instruct the jury that if they she didn't speak up or if her going on with a boyfriend statement would under normal circumstances suggest she would meet with the boyfriend was sign it becomes an adopted mission and her own statement is that what happened here absolutely not i think what the court where it's reasonable to assume that a person would have spoken up had to statement of the declare it not been true or act but don't the fifth amendment i didn't see the times this morning is that still and we're still living in the fifth amendment is how are we not using her silence against her we're saying if she doesn't speak up because we're clearly not doing that this is not a case where where miss lafferty was silent it's words in custody once why do you say that why do you honor what does that mean to you in a constitutional shunts in terms of interrogation of an individual who up to that point has remained shot she was advised again before the second january five o'clock they didn't read her miranda rights i mean they did the record is clear they did they did they did but what she did she did not she's been asked to sign another waiver form at five o'clock what is this a matter if you don't succeed try try again is that is that what the picked a valid point out what are the police supposed to do and mr mitchell has asked for an opportunity to talk back you know actually that was a softball because the answer maybe they should have they should have go into the magistrate because it already been away outside the magistrate presence for how long after the arrest the point well they were they were at police headquarters for two hours preparing the documents to go to the maddest they were on their way they didn't they haven't a how do you distinguish our court's decision in tyler which says that and this is judge mckeon writing the appropriate inquiry under miranda and its progeny is not simply whether the defendant knowingly waived his rights after receiving appropriate warnings rather the inquiry is whether the police scrupulously honored his assertion of his right to remain silent i think they scrupulously one hundred miss lafferty's request she it that's a tough adverb for i think you know it's tough but it's in the context of a request by mr mitchell to speak with his girlfriend and give us an opportunity to talk again in they did that in private and they did that if i knew for ten minutes and they gave them miranda advisements counsel what does that mean the girlfriend i mean we're talking about a defendant here earlier today cut off your right to cut off the question you need to understand that if you come back into the room and interact with mr mitchell or if you say something in response to something mr mitchell is saying that also could constitute a statement by you that can be used as evidence against you you have a right not to be present during the course of his statement you have a right not to say anything during the course of a statement and then further which gets to this this request procedure if you like not to say think the findings of fact by the by the trial judge here fully support the fact that the circumstance had changed police officers reasonably respond to those changed circumstances and allowed these two individuals to speak to each other and within a always have to be weighed and determine whether or not there has been a scrupulous honoring of the right to remain silent she walked out of the one o'clock meeting say i don't want to talk anymore she had previously waived her right under the fifth amendment why isn't that respected that it was respected she was on her way to the city magistrate's office and this circumstance changes and the police response to that circumstance i think the police were going to criticize if i have not allowed these two to speak they could but that's not the point we could have allowed them to speak the problem is what happens after that with a situation where she's put in a room where the police have got to forsee the fact that this woman may well say something during the course of mitchell's statement and maybe they figure well this is her lucky day we can get around miranda that way maybe they are doing this in good faith whatever it doesn't seem to matter because again he turned back this year scrupulously honoring her right to  of questioning questions and remain silent and she's put into a situation where the dynamic she said she felt she had no choice but to come in and if you look at the circumstances she's being questioned by four or five police officers in a room with  who are running i suggest that the opposite is true based on his record i think it's clear that she made her decision to participate in the joint interrogation with mr mitchell having previously ha already warned them in the defendant knows that he was she doesn't really have to say anything they've already cut off the right to question and you don't have to read a warning signal that's where your argument takes us i think the law is clear that change circumstances may require contact out the request of mr mitchell and we have a request from the police to both of them knowing your rights under miranda you wish to give a statement and they do so now we know suggest and this record that the police took advantage of mr mitchell in fact mr mitchell if you read the statement mr mitchell and just laughed at me we're trying to get the russells brought into this as a focus of police investigation but is there evidence to show that the police took advantage of her as a defendant there is or that they're caught i suggest there is not ok and i think the record will bear me out of that there's nothing to suggest that she other than her statement that she felt compelled which you know i can take it for what it is there's nothing that she's testifies to that says she felt compelled because of mr mitchell and so there's no working she talked about i think i quoted in my brief on page eighteen that the actual statement that she made with regard to the russells warming drugs and they wanted to  get proceeds from the guns of brussels have left the car that we used that was used in the burglary of the gun shop and it's clear this statement was intended to bring in the culpability of others and to get some assistance from the statement of mitchell and lafferty is a proper be admitted and the district court was attempting to establish a procedure whereby consistent with the same procedure that's followed in jackson versus demo hearings you have a right to have a court rule on a matter of evidence pretrial and then you have a right to have the jury determine whether or not they can they should reject that evidence on the basis of a conclusion and have the court instruct the jury that this is  little ruling with regard to what on top of admission is and you as jurors can reject that adopted admission even though look it has been admitted it and the evidence that's clearly the kind of procedure that i think should be fall california falls that i think it's the appropriate should be reviewed is whether or not the adopted admission was a stablished by the government and whether or not based on that adoptive admission being potentially a new support trial the guilty plea that was entered the only issue preserved for a before this court is whether or not that adoptive admission is subject to crawford and i suggest that the record below that the record before this court the appellate brief and the issue preserved suggests that the  in finding that the initial reliability which the constitution the sixth member requires is simply not present in this case it's an inappropriate procedure in this court should find so government represented there is evidence that she orally waive those i have not found any evidence in the record to support that there is evidence that she was given the miranda warnings but again in your case i'm always just can't remember video that's simply can't be enough to allow the police to come back and give miranda warnings she is good she was this test i believe the court realizes the test is not where she's smart enough that she have the wherewithal appendix g which is the first lafferty one case the defendant and mitchell spoke together for approximately fifteen minutes will got asked twice if they were ready to talk and they said no but on the third time the defendant and mitchell indicated to willcox that they were ready to talk this is being there's a logical disconnect here is the what they the government was attempting to put in adoptive admissions by her statements and or silence effected that's correct then the how was mi statements nothing more than context the mitchell statements weren't for that he was in his adoptive and now that mitchell statements themselves are or are not admitted for their truth detail that she provided on occasion throughout this interrogation that she was effectively adopting his statements as her own which of course but but but but but his statements themselves they're not admitted for their truth they're hearsay his statements what they're prepared to put in his her reaction to his statements being admitted but you're saying this is an adoptive admission case she adopted things that he admitted that's the way he said he admitted however isn't admitted for truth it is if the jury finds that she adopted it and that's just a legal fiction no doubt that but that but then she's adopting it as if she say i understand but you're on i believe that that just is a fiction under the rules of evidence which is exactly what crawford said is not sufficient under the constitution under the sixth amendment right to confront witnesses against you know we have a situation where if the if the jury finds that she adopted these statements then they can men if the jury finds that she didn't because they're there under the rules of evidence her statements she is of course not the actual physical declarant but under the rules of evidence she's deemed to be ok all i'm saying logically it is that what mitchell says is what she does in reaction to what mitchell says that they're trying to use against her that's true that's true but and then it goes in so far as testimonial hearsay is concerned only testimony of hearsay and in fact the two cases that the government relied on and which ironically stayed in my reply brief that you couldn't tell whether they were testament or not just in fact it's clear from the context of those cases i read read them last