which serious penalties are imposed fabricating evidence in support of the arrest of an innocent person for such a crime is itself a very serious wrong as well indeed one might say the more serious the alleged crime and the corresponding penalty the more wrong it is for an officer to fail to accurately report the facts and the statements of witnesses is this flores called nine hundred and eleven when his two month old son began coughing and gasping for air and he performed c p r to save his son's life this innocent father was then deprived of his liberty for two years separated from his son and his family while he faced prosecution for child abuse is done the investigating police officers also has and exaggerations which included blatant lies at the preliminary hearing let me ask you this  circuit there are three ways to establish a substantive due process fabrication of evidence claim the st way is by direct evidence that a witness statement was falsely reported or in fact was falsely reported that there are two circumstantial ways to that claim one is by showing that the officer had to liberate indifference with respect to the plaintiff's innocence or a rd way is that the officers interrogation tactics were abusive or coercive those are all still one claim but those are three different ways to return to prove that same claim and i think the central issue in the case is the district court determined that the errors are that the officers mistakes and errors were obviously the result of character or were the result of care and carelessness were trivial in consequential remember that you referred to well i think that one helpful reference point is the caldwell vs city and county of san francisco case where the court indicated that where the officers mistakes were not quote obviously the result of mere carelessness unquote then the question of whether the officers conduct amounts to deliberate indifference or mere negligence or carelessness is an issue for the trier of fact not appropriate resolution and summary judgment and our position of course is that this case too was for the trier of fact it was not appropriate for resolution on summary judgment and the way that we prove that i suppose is by showing that mistakes that were not of a trivial or in consequential character that were not the result of your carelessness i could begin with the question of the ten minute interval that was fabricated by the officer the officer indicated in his probable cause declaration in his preliminary hearing testimony and in his report that dr heiden had told him that the injury had taken place within ten minutes of the child's collapse and when i asked dr heiden if he had said that he said no i showed so he specifically said i did not give the statement and minutes in a subsequent colloquy he said if i hadn't said and minutes i would have said almost immediately what does that mean i'd like to refer to what the same doctor said the the criminal trial this is an excerpt of record and twenty four dollars he was asked the same question he said i can't give minutes it's usually right after an event occurs that there's a sudden change of neurological behavior so it could be within minutes to an hour now an hour is very different than ten minutes ten minutes excludes all other possible suspects because by then ten minutes of the collapse it was floor is the only one there are the house but if the entry is an hour then it does not exclude all of the other possible  suspects he has those floors is alone at the house from three forty pm on the day of the incident and the fire department arrives at four twenty pm an interval of forty minutes so if the injury could have happened within and it was gallant himself who's who testified when i asked about his deposition that the ten minute interval that he allegedly received from dr haydn was what he used to exclude all other possible suspects remember that when he conducted his interviews the there was he received information that the family that family members actually suspected the maternal grandmother of being too rough with the child so if the injury could have happened in a longer time frame then the  then the he exclusive the narrowing it down to playing to the mr flores only that inference dissipates as well as the significance of the ten minutes that's why ten minutes is important and i do think under what the statement is that attributed to the witness in the office report is not accurate and that is a prima facia fabrication of evidence claim and one case sorry that is  stanage versus department of social and health services quote an interviewer who deliberately mis characterizes witness statements in her investigative report commits a constitutional violation  something that's different i'm what i'm struggling with this is people are human people make mistakes and what i'm struggling with that is how do we determine whether what was it was an error  human error or was it you and then tension all fabrication well so that's i think what i'm what i'm trying to communicate is that where it plaintiff this court in spencer mistake was deliberate and i think in this case it wasn't just it wasn't just the ten minute figure there were numerous instances throughout the development of the investigation where the officer has his fingers down on the scales all of the errors or mistakes at the office are made with respect to the medical testimony tended to make the medical testimony more certain than it was and to make the time frame shorter than it was for these errors and mistakes were always on one side of the scales and not on the other and it's clear why the officer needed the time frame to be short as possible because that narrowed the list of suspects to one and the officer needed the medical evidence to be certain because that was the only thing i'm the plaintiff to any kind of a crime so that those an inference from those errors and omissions and mistakes is that they were intentional of the officer of whatever misguided reason wanted this prosecution to stick and there's also of course the issue of the video we don't just have witness statements that contradict one another we have the officer testifying in a preliminary hearing that the plaintiff that mr flores shook the dall bilingually so that the head was snapping back and forth while it was unsupported and the mr flores has discovered and submitted into evidence if video showing that that did not happen the officer testified specifically this is a sequence of events again that did not happen he says this at the preliminary hearing flores was holding the child as i recall facing him he stated that he started rocking him he was it wasn't working he got frustrated in short it started shaking while he was doing that the stuffed animal that he was holding the head was snapping violently back and forth you also testified that the child's head was unsupported the route the shaking this simply is not true is not even close and again unlike other cases that we have  cited it's not a matter of conflicting testimony we have a video that shows what the officer said was not true and when he was and confronted with the video at the criminal trial the officer admitted that his testimony at the preliminary hearing was untrue and so that under  immediately relate to the time between the injury and the call then there at the pole mary stress ok then there's another period that relates to testimony lines that i don't think the testimony lines up on that i think different people's a different things at different times which is the reason for the conclusion or good reason for the confusion on that score and i don't think that when i asked galland those questions that he had a an answer on that i think that's the that's one of the issues is that for a for a crime the serious and with a time frame so important it's frustrating that there was not more clarity and precision with respect to those differences i guess clarity imprecision is great but that's not the standard right well so that you have a standard is that where there are deliberate mischaracterizations witness statements as shown by witnesses submitting declarations or giving testimony that's not what they said our system of advocacy in our judicial system or each side is represented by counsel where there is a presentation of evidence witnesses by each side disputed testimony differences of opinion differences in interpretation of evidence differences in what with this is observed whether the light was red or green at the time of the accident is all part of the system but disputed and contrary evidence doesn't rise to the level of deliberate false or fabricated evidence in this case and that's where the district court judge was correct in her ruling on this case it was not fabricated that both doctors concluded that this two month old child only two months old was the subject of n accidental abuse over a period of time during the child's life both current and prior and it is not fabricated that the child demonstrated some girl brain bleeding multiple fractures torn ligaments in the neck bruising on the face that have been both prior and current that's not fabricated testimony that's a fact from witnesses other than the police it is not fabricated either that mr forrest admits that when the ambulance was called he was the only one with the child when the called on the grandfather this is not fabricated either the grandfather had witnessed mr forrest on previous occasions yell so yes loud at this two month old child the startled the child that's not fabricated mr force is friend krystal espinosa said that he admitted to her that he shook the baby that's not fabricated his own admissions that he was frustrated because he had to get to his lifestream video games is not is not fabricated it's not fabricated that check that go on in the big field these department didn't immediately arrest mr floors the incident occurred on may st when  the call was made it was eight days later that he was arrested after the officers spoke with the doctors on multiple occasions with family members on multiple occasions and let's not forget about the fact that the district attorney has the discretion to accept or reject the evidence being submitted by the police officer is if it is in a sense their job to determine whether or not the investigation was from an overzealous police officer and evaluate whether or not there is deficient evidence to prosecute mr florance i mean the issue of the timing i believe that the record is a little bit different than what counsel stated here the record is that mr forrest was alone with the child from two pm to three fifteen pm on may twenty one record is clear that he was also haven indicated that inheres view of these types of injuries can occur immediately if we accept that on its face and then that of course explains why mr floors immediately call the ambulance at that point but one thing that hasn't been standard dr nave and the e r doctor the initial doctor that concluded that the injuries and his view strongly showed that they were non accidental use he hearing judge or anyone that it was unequivocal that took the glottal was trying to represent the time elements that the doctors were telling him that injuries like this could occur and we know th officer draws his conclusions that may have just been his conclusions of what the doctor was saying it goes back to what judge smith was saying is does a mistake  mistake on the part of detective glaum that he used the word unequivocal you can't ignore even if you if you ignore that evidence is there still sufficient probable cause here for be misunderstanding but let me let me say this both doctors in my open yet now said that it was unequivocal that this child suffered from non accidental abuse your honor and that's what tech was referring to he never reported that they said it was unequivocally mr florists but even even if we ignore that word is there sufficient probable cause to proceed when you have a two month old child demonstrates injuries like this including torn ligaments in the neck and you have a detective that talks to other family members interviews them including the grandfather who relates  prior incident with mr floors yelling and startling this child that that evidence cannot be ignored it can't be ignored that crystal espinosa passed along the admission of mr floors to her he did admit that he own pinions from day one even four years after the incident these injuries were due to no one accidental abuse and detective glenn is not wrong and if you conclude that he is wrong your honor i mr force received an acquittal in regard to these charges here but to say that the text of the law and based on the record that exist in this court deliberately fabricated and created false evidence is simply point that you're making if justice fay's point of the use of the word unequivocal in in the report ignoring that then is there sufficient evidence to say that this prosecution was based on evidence that was accumulated by the police and if your answer to that is yes then then that's the law of the our system provides to everyone in this case not only mr floors but in the believed the pleas for fabricating creating misinterpreting arguing giving false opinions but that's where cross examination and the record and the trial the system works i do want to say this  well if mr florists he should have shared the evidence of his experts and he didn't do that so the evidence at the time of the criminal trial was based on expert testimony that was never shared with the prosecution or the police department at any time prior to the criminal trial and i find that significant your honor that if if this is a case of deliberate fabrication based on lawn then why go out and find and pay for experts who dispute how child abuse occurs but never share that evidence at all prior to the criminal trial fabrication of evidence claim requires a showing that but for the fabrication there's there would not have been probable cause this court in spencer versus peter's held that the lack of a probable cause to prosecute a defendant is not an element of a deliberate fabrication claim so that a deliberate ever cation claim stands whether or not there is probable cause and that makes sense because it's wrong to fabricate i think it evidence against guilty people just as much as it's wrong to fabricate evidence against innocent people so this is a freestanding claim i also agree i also submit that without in mind reading device it is going to be difficult to determine whether the officers conduct was deliberate in other words it's almost always going to be the officer state of mind is always going to be that the inference drawn from circumstantial evidence in this court said that evidence can be drawn again from this character as mischaracterizations of witness statements which we have deliberate indifference to the plaintiff's innocence which we have since the officer failed to consider alternative medical explanations for the child's condition and also from the conduct of the  have in this case i do want to also not fail to point out that in the case of roe versus county of san diego this court consider the sufficiency of the evidence with respect to a substantive due process claim based on the conduct of the investigate of the interrogation and this court concluded that there was a credible issue with reference to a declaration by dr richard leo an expert in coerced confessions and that was in tw now we have in this case the same doctor richard leo is reported begins on excerpts of record threes three o two and he opined in this case that the the quote the interrogation was coercive and abusive and prosecution but yet there was at least one deliberate provocation we didn't like any harm so then where are you well then there would be it would be a question of causation and there would be a dispute a fact for the well i suppose it would depend on the specifics of what was what was fabricated if he incurred i suppose additional costs or expense in defending his claim as a result of the fabricated claim being in there or if the claiming damages directly caused by a fabrication some sort of emotional distress separate from the government relations of liberty caused by the rest well to the extent that any such remedies are available