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>> before closing arguments, the prosecutor had one more card to play in the form of a surprise rebuttal witness who could unravel tom's alibi. >> please state your name for the record. >> amber rappeljay. >> out of the presence of the jury, dar's niece told the court that one week before dar was murdered she went to the farm to babysit. >> she told us not to go out on the back door without shoes because tom had dropped a frame and there could be glass still out there. >> the judge ruled that amber's testimony was hearsay and therefore inadmissible. the jury never heard her challenge tom's cla...

>> very much so. >> did you have anything to do with her death? >> not at all. >> before closing arguments, the prosecutor had one more card to play. in the form of a surprise rebuttal witness who >> please state your name for the record. >> amber rappeljay. >> out of the presence of the jury, dar's niece told the court that one week before dar was murdered she went to the farm to babysit. >> she told us not to go out on the back porch without shoes because tom had dropped a frame and there could be glass still out there. >> but the judge ruled that amber's testimony was hearsay and therefore ...

But you had sex with tom in his living room? >> he tried to and it was stopped. >> who tried and who stopped? >> he tried and we both stopped. >> you don't have a sexual relationship with somebody within two weeks after your wife's been murdered in that house. >> reporter: but the jury never heard marion crandall's testimony. because there was no indication of a romantic relationship prior to dar's murder, the judge ruled just as he did in the first trial -- that her testimony was prejudicial and therefore inadmissible. it was a huge blow to the prosecution's case. >> it supports the position ...

>> did you love her on february 7, 2009? >> very much so. >> did you have anything to do with her death? >> not at all. >> reporter: before closing arguments, the prosecutor had one more card to play. in the form of a surprise rebuttal witness who could unravel tom's alibi. >> please state your full name for the record. >> amber rapelje. >> reporter: out of the presence of the jury, dar's niece told the court, that one week before dar was murdered, she went to the farm to babysit heath. >> she told us not to go out in the back porch without shoes because tom had dropped a frame and there might...

The day dar was killed. >> last year at church camp, went for one of our activities, we fired shotguns. that most resdembled that sound. >> reporter: then it was time for heath to take the stand. the last time tom had seen his boy was at a hearing in court almost a year earlier. >> while you are in the barn, do you hear something? >> yes. i thought it was maybe skylar ran into a wall. either that or a gun shot. >> reporter: you think the boys were not if not eyewitnesses then ear witnesses. >> to what happened. >> reporter: tom shaffer knew if he had any hope of getting tom foley acquitted, he...