good afternoon in may please the court jeffrey jones for the appellate richard johnson in maryland versus crag the supreme court held that traditional cross examined traditional cross examination when that when it to have the opportunity to observe the witness his demeanor as she as she makes his or her statement while in the act of testifying here that third element of effective confrontation was missing the store special procedure did not allow the jury to meaningfully observe the witness demeanor while she was answering the questions when she when the when the jury heard defense counsel's questions on cross examination the witness was bent over a notepad writing out her answer and when the jury heard that written answer recited recited by the tr the the witness was sitting silently and preggers marilyn and i'm not sure this makes any difference as the judge was reading the answers that had been written because the record tell us whether the jury can observe the face of the finding made that she was not always in the presence of the jury a lever isn't that true not there was no finding that she was ever not in the presence of the jury so how do you focus on this third point about observing the demeanor but what do you do in the case of a deaf witness for example that doesn't sign because you know we know from signing that there's a lot of expression in signing a deaf witness that doesn't sign but can only transcribe an answer what's the difference there i think it's i think the supreme court has said it's a difference and there is no supreme court authority addressing a witness who's d because i understand why you've taken the best supreme court case you have but it doesn't seem under in the habeas kind xed that we have to thread this needle of controlling supreme court authority i think the case of a of a hearing impaired had a situation where the the defendant in the witness couldn't see each other because of a screen and the dissent had made the point what about what about a witness to can't see what if the witness was blind similar analogy and the majority wrote the distance of impaired witness might have testified and what i think that goes to the reason that's not a posit is because the confrontation clause is flexible if you have a witness that literally can't testify because they're not physically able to the confrontation clause will accommodate that this is a situation where you talked about a physical inability but there's an emotional psychological inability to testify in the normal context so had we had this procedure and the answer was written as out in your view would it have made a difference if someone other than the judge had read the answer i think i don't i think that would have made a difference that i don't think that's the dispositive question i think the judge having read it made it worse so what i'm just trying to do is get closer to a supreme court case which we're trying to rely on to look to and rely on and you do have these variations on the theme of which suggest in that there's not a controlling supreme court case so that that's really my i see concern and i and i the i think the argument is very appealing that you've made i'm just trying to fit it in the construct that were deciding it under yes i understand and i think that's what you're the point you just made shows that that craig merrill versus craig isn't all for it's not precisely on point and i would just point out that under  novel proposition then the court might well have had an interest in developing the kreg koyo line of line of cases and but and now you've been put in the awkward position of having to come and tell us well the california court of appeal didn't look at those cases closely enough because it's obviously wrong and that's very difficult argument to make if i think believe that finding finding krag not to be on point in this case is objective and reasonable because craig craig addresses a situation where you have in it you have a child witness who cannot testify just in this case and you adopt an alternative procedure that supplants traditional cross and i just but the difference were we able to decide just an overall instead of out of the differential stand by that might i might give a different answer but the difference here is that the witness is in full view the witness the jury can see the witness writing it out the at least some of the reactions my guess is that at some point the witness turns your face so the jury can see and there's nothing in the record to suggest i wouldn't be true who isn't crazy they can't even see the witness at all he's behind a screen it relies on california green and maddox versus united states in both cases the jury must observe the witness while in the act of testifying it's they the court says that a bunch of different ways it was it wasn't craig that said something to the effect that you need to be facts specific in how you craft the procedure one of the cases uses that phrase and it seems to me here that the court is faced with a situation and it's trying to be fact specific about how the court can make sure the witness will testify but also protect the fragility of the witness so if the court doesn't have some leeway in that how what do we do with this admonition that you need you can use that specific circumstances i think the court does i think the court must have leeway and it does but the real believe when everything up to the point where she starts writing her answers that they've seen they've seen the colloquy between between the witness and the judge and and counsel they have seen her distress and are perfectly capable of making a judgment as to why she might be so distressed as and you know i think since i haven't seen her i have no idea whether whether she appeared credible art or not credible to the to the jury from its verdict we assume that they have the they thought that she was credible in her in her distress and that it was for a particular reason but they did get to see all of that so they were the ones who designed a complication in that sense they didn't get to see cross examination they got to see the witness and they got to see that she was distressed and i don't think there's any indication that she wasn't legitimately honestly distressed and certainly but there was no cross examination essentially in the meaning in the meaning of the marijuana versus crack the cross examination was silent and the witness she was needed to be confronted about prior inconsistent made to potentially exonerat statements and she was she couldn't ultimately couldn't be confronted about those statements and the judge read the answers about those her denial she denied she denied having made those statements but the jury didn't get to evaluate her credibility on that very very court charity with me on behalf of respondent the attorney general there was no confrontation clause or in this case all of the essential elements of confrontation as laid out by the united states supreme court if there was no constitutional error at all then it was certainly reasonable of the state court to determine such as well we have a strong level of deference and the cases of as of course you know but we believe that it's very clear that there was no confrontation or here as the for the by arguing that there's no constitutional or at all you are you inviting this court to decide that question a new oh well this court can of course take the prerogative to do as it will however it is bound by  this case and so the question is whether or not the state court was objective leon reasonable here but to cut to the issue as petitioner has framed it there's simply all of the central elements of confrontation were met in this case including the observation of demeanor by the trier of fact the jury was able the state court did find it and the record does show that the jury was able to observe the victim's demeanor at the time she was testifying and the state court even explained that they were able to observe her demeanor when she was writing down answers because her voice was not the factor that goes into  observation of demeanor the jury was also able to see for instance her posture they were able to hear her crying they were able to see her facial features and so far she faced towards the gallery they were able to evaluate her attitude towards the court and her attitude towards the questions being asked and all of these things are components of what make up demeanor of a witness when being assessed for credibility unless this court has any questions not well in that case thank you very much your hono kreg decision quoting medics versus united states and discussing the requirement that the jury is able to observe the witnesses demeanor the jury must be able to serve with the man of the what the jury must be able to serve as a quote the manner in which he gives his testimony whether these were worthy of belief here the jury did not get to observe the manner in which she gave her testimony on cross examination and with regard to the point that they saw her while she was writing to the extent they could how do you observe someone's credibility while they're writing something down i'm not i don't think anyone knows what the difference between a liar writing and a truthful person writing on a notepad looks like and i think the jury was deprived this right to evaluate her her credibility in the manner that it should have and therefore that it was an unreasonable flirtation of greg thank you very much thank you thank both of you for the argument this afternoon johnson versus mcdowell has submitted the last argument this afternoon is united