attorney conceded didn't know the difference between a truth and a lie there are two statements that are involved in this case one the recorded statement when she was four years old and second her six year old trial testimony  because her trial testimony wasn't even consistent with the judge conducted a lengthy hearing and concluded that the child was competent to testify so i don't know whatever you say the district attorney may or may not have considered it doesn't seem to me to be relevant so you're out of the the t was really focused on whether she was competent to testify at six years old the only inquiry as for her competency and ability to detect distinguish truth from fantasy at four years old was the recorded statement i do have some response to the six year old statement or the statement incompetency when she was six because she was really much more focused on pleasing and  responding in a way that people appreciated but because the because the six year old trial testimony wasn't really even consistent with the physical evidence i think the more troublesome swan is the recorded statement wh for years the galley damning case says that as long as the jury has a chance to evaluate the problems with testimony in the defendant has the opportunity to rebut evidence there's the due process issue is not really a problem but it seems to me that you had both here the jury heard the good in the bad and you had a chance to challenge jane do testimony so how do you get around that secure honor when we're dealing with someone who can't who can't distinguish between truth and fantasy the judge has to serve his gate well but some of her statements were i mean i plausible and some of them were implausible but she did give some plausible statements and she did answer some of them correctly understand she didn't answer competency of a witness and and plausible or consistent doesn't tell us whether or not somebody appreciates the obligation to tell the truth because  perhaps the hackneyed example of a broken clock is perceptive appears to be accurate twice a day but it's not accurate it's a broken clock it's pure happenstance that happens to be speculate simply because it's to use magical thinking oh it's consistent the the little girl at some point says some things that are consistent even i guess even if we agreed with you that there convictions so what is your response to her so so two things one is sufficiency isn't is the standard first why i guess there's a few things first of  all this court's review under brecht is independent and so let's start with that but also sufficiency isn't the test for harmless error when we're dealing with an error the next question comes to did that error contribute or affect the verdict did it have an influence on it and here jane doe is the only person who claims to be an eyewitness who claims to be able to say this is how that death happened she's the only one there is no other information in the record there's circumstantial evidence here in the lot of cases in fact murder cases can people get convicted on based on circumstantial evidence certainly so certainly but but that doesn't mean but it but the circumstances don't indicate who did it in this case well he was the last seen with the baby because he came the only thing that is undisputed about him being the last one is that he cried out help the baby is not responding as far as when the child was actually injured and how the child was actually injured there's no independent corroborated evidence about that in so and there's nothing in the record to establish that any f on reasonable so what in its decision so they i don't recall that they actually did go to a harmless aspect of it but sufficiency simply saying if we remove this evidence is there still sufficient evidence that's that's not the right standard it's very clear and that could have been it should have been a chapman standard but when there was chapman or under the state harmless error standard it would have been a contributing to the verdict but this is a constitutional issue and so it should have been chapman or but even in practice the question still comes to did it contribute to the verdict and the state court did not did not confront  t to the extent they even talked about sufficiency they talked about things like well he was inquisitive as any as any person would be as any adult responsible caretaker would be he was  and and she had a cooperation requirement she had to testify against danny and she had there were some letters in the record there was a letter introduced in the record and she  acknowledged it where she's had wrote to him apologizing for what she was doing saying i'm sorry i should be there not you it's my fault and this was in she acknowledged that she did though the letters were were really quite clear but at the if i could talk about some of the factors i mean the trial judge said what he focused on in her in finding her competent was that was continued consistency and as i mentioned the broken clock and there was a lack of suggestibility but if jo understood her duty to tell the truth and that was the standing garcia who testified at trial two years later her dad danny farnham that's my client the petitioner here who's been in prison for over a decade he was dead she does not possibly appreciate a duty to tell the truth these from the from the four year old recorded statements her brother joe joe died and and in terms of well maybe it was just a freddie and wish book the other thing is that there are two giotto's there are two judges she doesn't have two brothers both named jo jo she has a sister who's who's the same age as her but it's not her twin it's her fantasy life she can't distinguish and the judge relies on facts right she should be going to school when she gets her shots but there's no evidence that she's not going to school no evidence that she has or hasn't gotten her shots you can't credit that and he says well her teacher is going to be named shelley but that's the same name she gives to imaginary baby we have no idea on the record what her teacher's name is going to be are there kids at her school she says she's been there i guess she doesn't know she likes a cartoon movie and the judge is impressed she likes it hard to movie she likes sponge bob and spider man and doris she's a four year old that's fine but that doesn't mean she appreciates it you need to tell the truth in terms of reliability joe was a stance a belief in the best possible position to know that joe joe died why because she said jo jo said only an adult could have caused the injuries that resulted in death what do we do with that information isn't that powerful circumstance and circumstantial evidence of that that corroborates the testimony of the minor that  us with two possible suspects your honor and that's what the trial was about two adults were present and it wasn't necessary the only thing that put danny farnum as the only person present present at the one who found the child though he did not say he was the only one present he did say that that's the way it came out he did say you know i'm the one who found the child and brought it out and that looks really bad that makes me look bad  i'd like to say that with regard to joe's testimony about joe joe's death and and juggles death and the baby's death it makes as much sense to credit those statement that foreigner was roughhousing with baby doe as it does you credit those statement that she killed joe joe these are merely consistent and one has to assume that the prosecutor's theory is correct in order to go to that point  so your your point is that there were two adults present and the other adult may have been the one responsible for the baby's yeah sharda over speak your honor but that was the theory of defense that was the theory of defense at trial raise any cognizable federal claim second the state court's ruling that there was competent comports with due process of law this court cannot second guess and is bound by the discretion of the state courts determination doe was competent and that there was no violation of california evidence code turning to due process the trial court held a lengthy hearing on the issue of competency exploring all of the facts and circumstances surrounding that witnesses competency specifically there was a pretrial hearing where the court again asked the witness many questions she undersea said she understood her duty to tell the truth she said she would not guess if she did not know an answer and she showed some understanding with the difference between truth and lie the court had pause when it considered the statements when she was four years old and reasonably so although the child cannot understand abstract concepts concepts such as death truth and why ultimately the court after considering and exploring all of the facts and circumstances determine that doe was still a competent and reliable witness because she was able to accurately relate what she personally observed her understanding of her duty to tell the truth is further evidence outside of her ability to define truth and why she was able to correct the interviewer when she was four years old when the interviewer mistakenly how did your brother joe joe di so said no not my brother the interviewer said ok how did joe joe joe i know not joe joe it was baby doe this evidence is joe's understanding that she's supposed to tell the interviewer and the court what she saw what she personally observed later during the four o two during the pretrial hearing and during trial so answer is multiple times i don't know two questions evidence seen are complying with the trial court's instruction that she should says no i didn't have anything to do with it they think you had something to do with it but says i of course because i was the last one around he admits that he's going to be blamed because he was the last one with the b b the evidence was sufficient to convict petition there was no doubt that the baby died from an intentional attack by an adult and the evidence showed that that adult was petitioner the pathologist testified that the baby suffered an extensive fracture and he died as the result of abusive head trauma to the head the pathologist testified this could not have happened from an accident from an injury from a two year old or four year old child and it could not have happened from suffocation petitioner was the one with the opportunity he was again as he admitted the last person with the baby during the only time period the death could have happened petitioner have the motive he was dealing with the first the baby and present testified that she had seen petitioner in the past have a short fuse with children and petition er evidenced consciousness of guilt with this statement following the baby's death first he had no explanation for how the baby could have died then later he came up with multiple implausible theories including that the baby tripped and hit his head on a sliding glass become unconscious within seconds and died shortly thereafter there is no doubt that president preston the child's mother was away at the store for anywhere between twenty five to forty five minutes and when she returned home she said she did not see the baby alive all were himself preston and his two children and he also acknowledges that preston goes to the store for a short period of time taking they get pushed putting that aside there's also dos testimony she describes the exact type of attack that b does that and she identifies the attacker she says my dad was mad because the baby was crying my dad shook the baby hit his head on the crib the baby stopped crying and my dad placed the baby back in consistent with what the pathologist supine happened the baby had to have died from shaking or forceful blow and would have become conscious unconscious almost immediately just as joe said she personally personally observed what's your position whether to know where review applies to the due process question what's your position on it is not your honor this court has previously recognized and wholly very verses yarbrough the supreme court has never held th evidence of this type of video evidence of this type violates is in violation of the supreme court in violates deep due process for that reason alone there is no way for the california supreme court's determination to be an unreasonable application of supreme court precedent and for that reason the standard of review applies and not to no review to conclude unless this court has any further questions federal relieve its precluded because the state courts determination and denial of petitioners claims was not an unreasonable application and was not contrary to well established supreme court just to jump to the due process i'm i'm not making a state law claim here is a due process question what the trial judge asked about was limited to state law issues he didn't address fair trial or d say they should have adjudicated so on that prog putting aside your due process argument so in that case why don't we just send it back your honor the that has to do with the standard of review twenty two fifty four says if there's been an adjudication on the merits then twenty three fifty four d the limits the scope of review if there hasn't been adjudication on the merits you want us to review it you know that is correct we also have d c versus arms and i think the other case was the wielder case was so those are those are both u s supreme court case address and child competency that's correct that is correct i'd have to look at it in my brief is certainly d c versus arms and there was a second case and i think it was wheeler just i wanted to briefly respond the judge did give joe credit for correct supposedly correcting  interviewer's statement that or assumption that joe joe had died even though of course that is what don't said but what she corrected wasn't that joe joe hadn't died she didn't say that she stuck with that she said joe joe wasn't pommy been shaken so there was just a different correction and as far as to how the death happened the coroner said no shaking was not likely the cause of this there was some sort of forceful trauma there is no evidence that he was dealing with a fussy baby there is no evidence at all other than what we have from doe and in fact what is doe say like a sponge bob cartoon the little child was being twirled by his ankles child witness for competency  from my reading of this case it didn't involve a child witness it was about someone who is alleged to be insane but perhaps you saw something i haven't  was ok so i'm sorry it wasn't child competency we were is the case that with child competency arms dealt more generally with competency and again i think we're going to you will or versus united states think armed has a better statement because yes i mean arms has a statement of competency and that there that the witness must have sufficient and i have at pages five twenty one to twenty two the witness must and i'm now quote have sufficient understanding to apprehend the obligation of an oath and be capable of giving a correct x account of the matters which he has seen or heard in reference to the questions that issue i think that's appreciate the obligations and know apprehended appreciate the obligation i want to pose when we're dealing with a young child you send demeanor and a very important part of that t terminations the child may respond casually to certain questions may respond with confusion as to others but still can demonstrate that he or she knows how to tell the truth when really  focused and that's the kind of thing that a the trial judge would be uniquely in a position to assess that doesn't mean there is no case that the trial judge can't be reversed but it certainly means that  there must be a foundation and here there is none as specially as to the four year old statement and there also must be a consideration of the relevant factors and it least not rejecting or completely ignoring those important factors and he