half hour so when you begin if you it benefit yourself and tell us we represent and this evidence was it was clearly in contradiction of that there was also a lack of additional probert of evidence such as semen or d n a in the area despite the police's search quite extensively for such evidence they couldn't find any this so strongly indicates that however our supreme court's cases on the subject have been quite clear that that just doesn't matter here the statutory language is so crystal clear in the two exceptions are so crystal clear that you don't even get to the question of what the statutory intent was it was an absolute violation and it was absolutely barred because neither of the two exceptions applied in this close on the magic reversal quickly here no it's not automatic reversal it's reversal because as we just discussed justice cunningham the evidence in question was very damaging to mr freeman because it helped the state prove its case against him and that's in this case because of the conflicting evidence it's when the tip the scales of justice against him there would be there are certainly cases where the violation would be harmless error if the evidence is overwhelming section of the code section one fifteen dash thirteen states in a prosecution for a violation of section including are section twelve fourteen point one of the code statements made by the victim to medical personnel of medical diagnosis or treatment including descriptions of the cause of the symptom pain or sensations or the inception or general character of the cause or external source they were insofar as reasonably p diagnosis or treatment shall be admitted as an exception to the hearsay rule i think the most important phrase in that statute is as an exception to the hearsay rule the problem with this evidence in this case is not that it was hearsay or that violated the hearsay rule the problem is that there's a statute that specifically bars this kind of evidence it is a statute that specifically says this kind of statement to either one is that one desk thirteen was enacted as a specific specifically to deal with hearsay problems with regard to such evidence there had been like a lot of cases where such evidence had been admitted and had been found improperly admissible because it was a highly the hearsay rule and thus that statute was an active however it doesn't really talk about the inherent harms in this kind of evidence which is the reason that the rape shield statute was enacted so we have to look at the public policy behind both of the statute i think to some extent you do however i think that was that there's a case that specifically talks about this type of evidence in the rape shield statute i think that has to trump the  hearsay statute which is clearly dealing with different subject matter that's a different concern that issue in that particular statute and that is the stream court does not address this right in the cases that you're talking about where they talk specifically about the rape shield act they don't of it does not matter it doesn't matter who it do is to it's absolutely barred unless it meets one of the two exceptions now if the legislature wanted to go by back to the drawing board and try to make these two statutes more clearly reconcilable with each other you could certainly draft a third exception that says you know hear they passed that statute don't you think if the soon that they're kind of thinking globally i think there was a statutory construction require that you try to read statues in conjunction with with one another and try to come up with a something that you know upholds the purposes of all statutes but in this case the fact that the racial statute is so clearly with this type of evidence and it's clearly enacted to deal with it i think that trumps the hearsay rule exception because that is dealing with a completely different to the second prong that also warns reversal as well here we have a case where the legislature enacted a very specific statute to keep evidence like this out and even the trial court and the prosecutor indicated below that they knew that that was the case and they knew that under th reversal mr freeman clearly didn't get a new trial under these circumstances because the evidence prejudiced him and the second prong also included implicates protecting the integrity of the judicial process and this kind of situation where the trial cour picking and choosing which statutes it wants to follow i think that you cannot say that the integrity of judicial process looks very good in this situation accordingly we ask that you would reverse mr freeh his conviction under either was b s age which was an improper factor we can't know precisely how much weight the court gave this factor at this point because it didn't say so but it's constant repetition indicates that it was rather significant you probably remedy other people because over in similar evidence on the specific ground that it was a sixth amendment violation under proffer out of an abundance of caution the trial that starts rectify the error by allowing defense counsel to recall the victim and allow her to be subject to cross examination about the statement that she had not had sex with anyone prior to the incident that occurred and defense counsel waived waived the ability for the victim to be recalled therefore defendant has forfeited this argument and  honor no not in this case because although the judge did concede in that statement that the rape shield statute was being violated and the specific purpose of the evidence was being side to be admitted by the prosecution in this case it was not a violation of the ratio of statu diagnosis you can bring up how we deal with it the judge is saying i have knowledge of this is wrong this evidence should not be admitted therefore i'm going to loan it but what i would do with that it's because as was previously stated we do have a situation of competing statutes the racial set your birth is the statute with the law as the testimony for the purpose of medical diagnoses and the two statutes need to be read harmoniously in this case one cannot be clean of the admission of the evidence where the purpose of the admission of the evidence is to lend credence to the existence of ratio which was not to completely forestall the victim's interests but to seek justice for the victim of the same time balancing that against defendant's constant constitutional rights t state ever argue this is admissible under the treatment diagnosis exception that the prosecution stated that that was going to be the purpose of its admission that it had come to her knowledge when she was preparing the witness and he was going to make this statement and then she says but i know this however and that was the purpose of the admission of the evidence the prosecution didn't dwell on it wasn't brought in front of the jury to inflame their passions it wasn't brought out to say that the victim was a virgin prior to her encounter with this defendant it was strictly brought out to say there was no understand of all strictly speaking it is but i understand those the supreme court allows if there are exceptions for when this sort of evidence should be admissible especially where it tends to wind credence to the diagnosis in a rape case santos states that there are several different jurisdictions that allow the admission of testimony after medical diagnoses and invests case based the victim's state of the torn hymen is a perfect example of why that particular evidence should be admitted for the limited purpose which is why the judge attempted to limit the purpose of the admission by saying don't dwell on and the prosecution did not dwell on it was again not right in front of the jury for the sole purpose of inflaming their passions to say that this victim had was purer and this defendant violated her it was to say that there was no twenty hymen before this incident occurred and now there is a torn hymen and based on dr hannah's testimony that a hero heal within a seventy two hour period and that had it occurred prior to the alleged incident there would have been a tag or a previous hilmer so all of that went to state that the tear was consistent with the victim's account of a sexual penetration which had recently occurred and that was the purpose of the admission of the evidence sealed it's just it doesn't have any limitations for example which would state that a crime occurred the purpose was again to balance justice in this case for child victim against the defendant's right to a fair trial and by suggesting that the evidence would just be plainly inadmissible under a very narrow reading and there are situations in which the the defendant's rights and technically the case law falls on the side of allowing the defendant to introduce evidence of the victim's prior sexual history in order to balance his right to a fair trial there's not been a situation where we're asking for the evidence to be admitted to the victim's rights to a fair trial as we are here and that is the purpose but that's not the idea here is not one of the exceptions and the legislature is  but in this case the evidence wasn't closely balance notwithstanding the evidence of the tear we don't have a situation where the evidence was closely balanced there was an eyewitness to the assault there was an immediate outcry to two different individuals and the defendant himself confessed to the police when he was arrested now granted defendants the radius of the attack as it occurred to the police is different from the theory that was presented at trial however the defendant did admit to penetration of the child victim which in this case the defendant was charged with predatory criminal sexual second issue is defined and has razor says the sentencing argument people don't believe that this was a case where the sentence was tainted by the trial court's mention of the victim's age once again this was a predatory criminal sexual assault cas sentencing hearing he really he repeatedly comes back to the fact that this the if you're so easy in the space of one paragraph you say i counted when i was reading it he says that maybe seven or eight textually if you read the entire sentencing and although the trial judge does return to be age when he's mentioning it it's almost used as a now almost his but it is a bolster for the reasoning that he actually has an effect some well have a possible to assume that the judge cannot just completely ignore the victim's age when he was speaking it was the only offense with which the defendant was charged in this case there wasn't a laundry list of sexual offenses there was a single charge it was for predatory criminal sexual assault n that shows that it was very harmful and helped to tip the scales of justice against him the state mention his it freeman statement at the police station however again this is completely it could not be reconciled with what d a said or what the state's theory of the case was and such of it if anything it really just confusing matters for the jury and didn't add much to the state's case and with the second problem once again the state the court wasn't concerned with a conflict of statutes or of whether the purpose of the statute was it issue here it simply said it's a violation but you can go and it had to do said this is a clear breakdown of the judicial integrity and this court needs to act to make sure that that doesn't happen again and finally go to sentencing the sense was significant in this case and this court would have to assume that despite mentioning the age fourteen times and sentencing the court in place and able and sidewall that's not an acceptable assumption or reasonable assumption on this record thank you very much rather thank you we will take