concept of a limiting instruction was crucial to the supreme court's holding in richardson versus marsh that holding its expressly conditioned upon the giving of a limit instruction that is an instruction to the jury as to disregard a statement given by a codefendant in considering another defendant's guilt i mean the whole point of the richardson holding in the richardson decision was expressly conditioned upon the giving of a limiting instruction what was the statement that you're referring to that extent and again the statement that the introduction of the fact of the statement made by a coke participant is sufficient to to establish a brew violation it is that right under the circumstances of this case that's that's my argument because everyone knew what the statement was everyone knew everything you just lost me how the jurors know what the statements and because of the circumstances of the case it was clear that elder witness who was allowed to testify to it as an admission this business about his part that is the sheriff looking for me why would the sheriff be looking for you well i shot this guy and i think the guy in was with me and read it on me or mean it's an admission properly before the jury was that your client's statement to a witness is that he feared that law enforcement was looking for him because he had been involved in the shooting in the fellow that was with  a statement and information in an ordinary criminal case of a law enforcement officer takes the stand and is then asked what did you do what will i interviewed witnesses a b and c and what did you do next well i assemble the information i had from those interviews and them i talked with the assistant d a and then we asked for a arrest warrant and i went on the rest of the defendant that's pretty standard stuff as well i'd agree with you there but in this case it was california court of appeal to apply the richardson exception to the bruton rule under the circumstances that this case and it was there are some cases i think out in other circuits that have adopted this argument that the admission of the fact of a statement without its content can under certain circumstances constitute a brute violation or any of those  any of them post and i don't know i wish i could answer that if the court would like me to brief that issue i'd certainly be willing to look into it aware of any cases that in the hay b s cont much more powerful in the admission of the statement well ok and you don't object to that so i do need to address the issue of prejudice and the problem that you've got the cole testimony was known basically known by the trial judge before it was decided to introduce this statement it was clear that the that the prosecutor was going to introduce the statement he not only  the credibility of mr cole but to establish that mr clinton had actually implicated mr mr mason i mean there was evidence that mr mason had a motive to kill the three and a half hours before the homicide occurred and there was conflicting testimony as to the color of the getaway vehicle with one witness testifying that it must have been a light colored car and another witness testifying that it was a dark  was the shooter and did participate in the homicide it must have contributed to that decision i don't you have about thirty seconds that you want to save a little time to rebut like this they have a little time for rebuttal but that's why i the statement was never used for that purpose rather confessed and it was pretty clear can a confession to valerie cole the only ambiguous part of that confession was who his victims w the statement was introduced well actually i'm trying to show that the statement was it was offered for a proper purpose it was properly admit it and we don't have a confrontation problem because it's not always the case in britain states that we're putting in a for a different reason and the test under br incriminating statement here there was no statement minute in evidence right i agree with you on that but it started off by saying we have knitted this evidence and it was there was there was no doubt in incriminated the defendant that's true but not in a confrontation sort of way it tied the defendant to the two older fenton and placed him at the scene of the crime and showed a guilty mind when he confessed to the the law enforcement officer who offered the fact fintan statement yes had he also interviewed cool i don't believe not at that at the time there was a warrant and the final time she called i believe someone called her back and i can't say who i think it was somebody different then and then the person who actually interviewed appellant but i can't say for we don't know with the he said i shot a man in stockton and the man molested my sister and the person i was and i think the guy i was with has squealed on and since all the fenton talk to the police it was it was reasonable for a pilot to believe that he squealed on him but but it doesn't matter what the statement was see if we assume that the jury this you know back in the old days before past sexual conduct  admission in rape cases was resolved in him in the way it is today and it's not uncommon for defense attorneys to try to put a witness on the stand with talk about the sexual proclivities of the victim and when the judge would say you can't do that turn to the audience and ask five men sitting in the audience to leave no testimony would come in but the clear implication to the jury was that if allo he would put five other men on the stand and talk about the sexual proclivities that if that was widely frowned on how is that what happened here different than there i mean you don't put the statement in but it is absolutely clear why you're offering the testimony and what implication the jury will take  a if i understand your question correctly i think that in other words can the circumstances be such that the offering of the fact of a statement by a co participant is the same thing as going ahead and having him say we did it because it doesn't matter whether or not the statement was true it doesn't matter what happened said it just doesn't they could have he and the police officer could have exchanged cooking recipes for seven hours and the jury couldn't believe that one hundred percent and this evidence still would have been extremely relevant to tie appellant to the murders in terms of explaining who he was with and who his victims were limiting instruction without redaction without redaction i don't know what the statement is so if we if we assume that the statement when he slid into stockton and i was with him when he shot this guy no that would not and that he was interrogated for seven or eight hours whatever it was and we don't know what was said we don't know if it was recorded that's true that was calculated by the prosecution because of this very problem is it a problem or does that make it worse i mean let's assume taking your hypothetical that they were just exchanging cooking recipes and there's well if the jury had known that they might have reached a different conclusion what this evidence appears to have been put in for the purpose was to leave the impression that phantom had implicated mason right june early in june about a week later appellant made his confession to valerie cole now the assumption that the prosecutor undoubtedly wanted the jury to make is a week after all defendant made a statement a out that's one thing i don't know it's it seems to me take it it's taken that the call testimony by itself is which came in with really without objection it's pretty powerful this is this you say it's of supposed to bolster are where we're fearing that the jury might have used this information for an improper purpose that is the proper arena for a limiting instruction which the appellant did not request the constitution is loath to place a sewer spon duty on the trial court to offer up with an instruction that the that the defendant doesn't even request and so if the appellant fear that he would that the jury would use properly admitted evidence for an improper purpose then it was it was his duty to request a limiting instruction and let me ask one of the question yes at the time the fact of the statement was being listed from the police officer what's your best case that what happened here violated the clearer federal standards there are federal standards well it's a case  recommendations and i was i believe it was briefed in the california court of appeal and that's the case i find most similar i think is a lily versus virginia and i mean that the statement could not have been considered in a joint trial without a limiting instruction thought and the content of the statement was made clear there was in the prosecutor urged the jury to use it for that purpose and it must have contributed to the verdict so without also the minute thank you case just argued will be submitted for a decision and will proceed to the next case on the argument calendar