this appeal deals with several rulings on evidentiary issues made by the judge with we think result our result of an abuse of discretion along with comments made by the judge you realize of course that we give great deference to decisions on evidence but by the trial jurors yes i do understand the judge well i think in this case i think it's clear that the judge abuses discretion first of all any one of the three of denture issues stand on their own as an abuse of discretion that i think would warrant a remained but the combination of all three along with the judge's comments created an unfair imbalance of evidence in this case on one hand the judge people clued this boy from testifying and that in his initial disclosure he identified the perpetrator as an assistant teacher who worked at child of america who had braids in his hair that was excluded by the judge on the other hand the judge allowed the defendant's expert witness to testify that children are notoriously unreliable and that they're subject to implanted memories that created a vacuum that left really one conclusion the jury could make which is that somebody must have implanted this person in this child's head because they were he was unable to explain nor the witness is able to testify that you take less and use you say the judge was completely wrong as i read the question that you asked it's a somewhat ambiguous question that if it had been asked in a somewhat different form it would have been absolutely clear that the that the in the question that this actually happened if you would phrase the question saying dr you heard j s testify that these things were done to him assuming that were true would that be a bad thing for the child then there's no way the doctor could answer that question by by getting into children law because it's just not raised by the question but when you phrased the question saying that this sexual abuse was committed on him the question  arguably arguably proposes that that it was committed on him and and i can't agree that it was clearly outside the scope of the question for the doctor just to say first part of your suppose a response of answer by dr caplan in that that i can answer that i don't know if he was abused would have been fine but then he offers in an opinion about that goes really a credibility and there are several reasons why that does not come in first of all even if i open the door to a credibility issue which i don't think i did the law does not permit an expert then to go into that issue and take the place of the world the jury and talk about credibility issues that's number one number two the question i asked did not open the door and only to the extent which you're saying is that while he could have said yeah i don't know that he was abused but what he did is he went further and he said well children under torsionally unreliable that's a direct comment on the credibility in this that this that the second circuit has or has talked about then a similar case not only versus new york where an expert got up and testified that was dealing with about us any scientific study this was a complete surprise at trial some reference to what he was where we based on his training and experience well he said there was a famous book by by dr c c that doesn't mean a double standard in and  there could be and this was just a very generalized opinion this expert wasn't even talking about any factors in this case that would actually apply to suggestibility or an implanted memories or no facts in this case and so there's other reasons why why this evidence was inappropriate to come in as i said first of all this was a surprise this this testimony was not in the doctor's opinion and with regard to the implanted memory i have we have filed a motion in limine in which a court granted before the trial that the defendant was peak looted from raising this issue of an implanted memory yet the court allowed it and refused to strike it that was unfairly prejudicial to my client we were not able to defend that and as i said if you combine that allowing this testimony from dr kaplan suggesting that someone implanted this memory in this child's head and then the proof and the judge be clued to the plaintiff or the family who heard the initial disclosure from saying oh his original statement the the first day he said it was a man at the school creates this vacuum and so the jury is has to wonder how did he find all the sudden go from what was touched also and i was touched by a man at the school who fits th description it further complicated unfairly this case for the for the for the plaintiffs in that the court also precluded us from talking about providing evidence about  conviction that he was a pedophile because in explaining what happened when this child made the disclosure to his aunt and his cousin that he was abused by a teacher an assistant teacher at the school the aunt told his mother his mother called her friend who was a had child at the school and the friend said to the mother there's a man at the school who was just convicted of molesting another little boy so the mother take looks up this and looks at the name shows the picture to her son he says yeah that's the guy that's the man who touched me none of that information went to the jury and so there was no way the truth was going to given all these rulings i was a jury didn't have the facts they were unable to make that decision on top of that we then have the judge's comments where when talking about the child's testimony with the judge says well there's a credibility issue here totally inappropriate for a judge to say that the judge never said that about any other witness in the case yet he direct when he's talking about the testimony that's coming in from the boy and then further in talking about the defense's defense in this case as to whether or not there's a credible statement the judge was on to say that it's a legitimate defense this may please the court when he was david rather for them representing defended children of america nyack yellow sea on the point about dr kaplan's testimony this is a classic example of asking one too many questions on cross examination and not phrasing the question in the right way as your honor pointed out it was it was an ambiguous question the way to ask that question would have been to the extent you even needed that testimony but let's say you wanted to ask the question you ask it in a hypothetical dr assume the child was molested wouldn't that be a bad thing then that would have boxed him in to give the answer he gave but is judge  out in ruling on plaintiff's motion to strike what he was trying to do was box in the doctor to in effect saying this happened in the doctor pushed back against that when joe object to the question i didn't find i didn't i thought the doctor would handle it the way he handled it so i let it go and in fact he handled it exactly the way i thought he would so what he said was look sex abuse is terrible it's a crime but we don't know that happened here and we don't know what happened here because children who are three years old are unreliable now counsel talks about credibility those words were never used in the trial it was all about reliability the judge was very clear because we would have to go into this issue on the plaintiff's expert which was is he going to be able to say i treat sex abuse victims and i can tell you he's telling the truth and the judge said you that children of that age are on now you can talk about and the law is clear you can talk about reliability you can't talk about credibility and both the plaintiff's expert and our expert talked only in terms of reliability what's not mention is in the plaintiff's expert's testimony he was able to go in and say these what the plaintiff is describing is consistent with someone who has suffered sexual abuse he couldn't say i've evaluated kids who have sexual abuse and i'm telling you is tell me the truth and our guy didn't talk about i listen to the plaintiff he's lying that that's  the province of the jury and that was never invaded all he said is look this is the field these witnesses are unreliable and i can't i don't know what happened i mean he was cleared by saying we don't know what happened here argument evidentiary rulings are you know that it has to be a clear abuse of discretion they're generally left alone in this is a well thought ruling what was the basis for excluding the testimony about the identification of the agent the corporation ok so that's character evidence and character evidence is generally not as i understand there was some evidence proffered or proposed to be introduced before the jury that would say this is how this is what happened and how the child identified the person who abused him ok never an issue in this case the plaintiffs the child got up on the stand told what happened and told who did it too we never argued well if he was abused it wasn't abuse by mr said we that was not an issue identity but if you want to talk about identity first the child identified then we had the aunt come in and the aunt told the story about how he remembered it in the bathtub then we had the mother come in and the mother told how she identified him through a facebook picture so put before the jury were all these issues what they wanted to bring in was a video to kind of bolster all that which was unnecessary because they got in what happened through the boy how he remembered it through the aunt and how he was identified through the through the mother on the issue of the subsequent that goes through your happened and the testimony in the case was there were video cameras in every single room the teacher testified that she was with him during nap time every day there was never a time that she wasn't there there was other witnesses who came in and said jefferson cabrera was never in the room alone with children there was other witnesses you know whole mountain of reasons why this didn't happen and on the other side the only thing the only piece of evidence that the plaintiff put forward was that the child who never complained at the time remember three years later in the bath tub that this must have happened so the jury could have easily taken all his evidence looked at that and looked at this evidence and said you know what we believe that it didn't happen and that's where they came out now the issue of the subsequent conviction there's a you got to get by three different in order to get that in as judge a percentage point out you got to get by for fifteen you got to get by for zero for a b and then you got to get by for zero three and at each stage he went through why  doesn't qualify to come in under four fifteen why it doesn't qualify to come in under four hundred four and then even if you got by those he did a reasoned analysis of exactly why under four of three party piece wrong then you got to go to you still gotta get it in under four hundred four and for a three you got to go through each analysis so under four of four you've got it's character evidence and you know the  advisory committee when they passed four zero four it's very interesting what they said which is character evidence is of slight probative value and may be very prejudicial it tends to distract the trier of fact from the main question of what actually happened on the particular occasion it subtly permits the trier of fact to reward the good man to punish the bad man because of their respective characters despite what the evidence in the case shows actually happened now  just character it was convicted of the very offense that j s said he did to him but but the judge found well there's two things on first of all he when accused of the second offense which happened years later he admitted it and it was a different set of facts judge who said he actually went through and said i don't find these crimes to be substantially similar for these reasons the only thing i similar is that they both and or involve little boys that have their penises touch that's not enough because the way he did it was different and the case law says they have to be so similar that in effect it's like a signature it's like he uses this modus operandi each time and judge percent he performed that analysis and said i don't find it substantially similar and here he gave you know he gave his reasons and again the standard is such that those read ok in this context of this case the boy alleged that he was abused during naptime in front of a whole room of kids and on videotape that the molester reached under his pants while talking to him and touched him in the other case it was in a private setting in which the molester pulled down the kid's pants and distracting him with a cell phone so that it wouldn't realize what was going on and so judge present it but there are different that's not the signature that's not like the signature would be i always use my cell phone to distract the kids while i molest them the only time i'm sorry for these events of time one was alleged to have taken place in two thousand and ten and the other in two thousand and thirteen three years you can't change well then you won't use it for ammo or you'd only comes in if it's this to show ammo so if it's a different m o it take the touching of the pin difference well actually the case from this court case law from this court says to approve alleged similar acts share unusual characteristics much more is demanded than the mere repeated commission of crimes of the same it's for us to review right sure but that's for all for now even if you find that it would qualify under for all four you still got to be go beyond you still got to get by for a free and four zero three that's prohibitive versus prejudicial and what what the court found in this case was that i want the jury to consider what happened here i want them to weigh the evidence which is the video cameras in the teacher's there and him never being there but i don't think that the jury will ever get beyond the fact that he said later molested a kid they'll see him as a molester and never think about anything else and therefore i think the prejudicial part of that far outweighs the probative value which is that the only probative value is that he touched another good example use that this guy was touching the penises of little boys he touched the penis of one boy move that we know of no he didn't touch this boy in this case he said that and the jury found that it didn't happen so he's only touched as far as we know one voice but you know i didn't that's right denied in this case a jury weigh the evidence in this case and found that he did do it and the aunt both head and did come into court and testify about the disclosure and they didn't if a case in that's not true that's a false statement that's what this case is about the aunt and the mother were not allowed to testify about the identification all that the aunt was allowed to say in court was that the boy said his little sister touched him and they and said no one's supposed to  touch your privates and he said oh someone touch my privates that's all she was allowed to say what was excluded was the fact that the the the aunt and then it we didn't need to bring the video in we were content with just testimony about this but the aunt immediately brought it your adult son and they said what happened and he said a man in my old school my system teacher touched my privates and and he described him having braided hair that did not come in the trial despite that couns just said it did the second thing that he said was that the mother came in and testify how she identified him but that did not commend the mother because what really happened is the mother heard this and called her friend who had was at the school and said oh this guy a teacher fits this description was just convicted of molesting a little boy the mother looked it up saw the picture and showed that their son all that the jury was allowed to hear is that the mother heard someone touched her son and that the mother brought this picture out of nowhere and showed it to her son the story made no sense it makes no sense to hear it in a vacuum with all these other critical facts he was in the fight to the chain  going to the school finding out about the can have correct not allowed and never came in she was not allowed and then on the convictions themselves the standard isn't substantially similar we have under four fifteen zero four four b it's enough that the in congress has said we are going to in cases deal with sex abuse allow this corroborating evidence because it is relevant and it's not unfairly prejudicial and so under four fifteen and there  was a case we cite from another circuit the k f c case where they said it would make no sense to say you only in a in a in a civil case against the perps can you bring in evidence of other sexual abuse it certainly applies if the case you deal with sexual abuse of the cases against  corporation it should still apply and that makes sense but even under four for evidence in a sexual abuse case of another of another crime similar is admissible to corroborate the story and that was critical in this case because again there was no evidence about any implanted memory in this case there was no evidence or no facts that anyone suggested to this kid there were no facts that he implied anyone implanted a memory in this and council today this morning said he knew what his answer was going to be so i didn't object he knew that his a at dr kaplan was going to say there was an implanted memory despite the fact that this is in the record that there is a motion in limine and counsel understood in greed he would not raise implanted memories so it's a little thought that you told us that the aunt in the mother were both from in a trial to tell the entire story of how it came about that the the boy identified identified this person as the as the abuser and i was surprised when you said that because it was my hand and and that you said the only thing that was excluded were the video and our surprise because i thought that was not the case and you had history gets up and tells us that you misled us in saying that so what's your answer to the hansard is what i what i said was through the three witnesses i said the boy himself testified exactly what happened to him the aunt testified about what was remembered in the bath tub and the mother talked about identifying him through the picture and the friend so i didn't say the and he never said to the aunt that gave any identifying information it was the three my point to your honor's was through these three witnesses everything the video would have a stablished was a stablished through these three witnesses that's the point i was making thank you thank you both will reserve decision