mentioning however that that five of the seven errors raised in the brief are all asking for a new trial the six one of the six there the status conceded although we disagree on the matter of whether or not that requires every man for resenten i'll be happy to answer any questions the court has and yeah let me start off with oh why did you need to get a d n a information why do we need the d n a of nation because we were confronted with a case where the only reason the charges were brought against harvey right in this case we're not i don't know what i want to know is what are you going to do if you receive the information what do you do with we're going to want to receive that information i mean obviously the first step is to get the information we can do it we now have a very probative relevant piece of evidence that when you're dealing with oh i want to know what you're going to do with the what are you going to do with we're going to have any information now as to how what's in t v only nine o'clock i'm actually at that that's how the whole block that rolling up that would be an assumption i mean that's that's a first assumption and again i mean this is beyond in terms of what obviously i'm not a information was granted over state's objection the almost in court overruled the state's objection in order that this test run the test was run the information was then provided to the the one that the jury basically they that what talk about why the product rule which is where you get these astronomical numbers why that is not the only question we need to be asking when you're dealing with a cold hit database case and so in this case where the only evidence that's linking our clients to the offense where you have no wired witnesses where you have no physical evidence beyond is forensic d n a evidence that this the product rule is not a fair or it's a wild wild west still accepting the fact that that's a true that wasn't a very reasonable doubt but it's we need to really question we have you know we have some issues here and there are a lot of holes or questions we have about this witness let's just give the opening there was actually a statement made that there would be a consent that there would be a consent of our let me ask you this mr man i want to understand what you understand certain that to me now as far as the initial there's evidence that was taken from  there was testimony that mr wright could not be it would as a donor of the d n a in the undergarment evidence they're correct that's correct and then the other expert went on to explain that the likelihood and this is how it's normally testified to five probabilities in the likelihood so he could not be excluded as a don't correct correct that doesn't mean that you were couldn't how we understand this testimony so that another expert says or maybe you say that the likelihood of another individual having the thirteen that were quadrillions all right now is that how you understand the testimony there is a critical distinction between those two just between those two probabilities ok the first probability is i believe the hispanic unrelated individuals cannot be excluded as the male contributors one in that many cannot be excluded and the reason why they cannot be excluded and this is where it's critical to look at this is a partial profile this is not a complete match in which in the way that it was for the rectal sample here you have on the first three illegals you have an incomplete sample you have one number and the wheel and then a second number you have an incomplete or anything was inconclusive results on the final four results you have findings that could either be a match for the order issues or a low increase or decrease the rage when you're working through the product rule if the product rule is there is this is time that we're starting off of for every additional lowside that you're testing you are than going to increase the probability of you're going to you're going to create a large you know what of those who cannot be excluded or the class from which that the other class that could be excluded when you have when you have a you know and exact match as we did with the first night on the rectal sample and this is again this is my best understanding of the evidence and this is why once we get to these findings coming out of arizona that's fine well doesn't it this isn't it  would be i would have to go to the string theory and get more universe all to to increase the yes but i don't think that's true and i think that what we're finding out currently i mean this is obviously this is  superior or universe of discourse these ratios hack mathematical based on the universe of discourse and would that change because the anecdotal immediate ratio is different are with that  mathematical notation it should and should it should they just go to and the anecdotal possibility that somehow or another these astronomical statistics but by coincidence upon a calculation of what they believe this how random a certain profile would be if you were to take a sampling of unrelated individuals and and determine how likely it is that these nine most i would would match up in the way they do now what's happened when they're starting to look at these data bases there's questions that are coming out and so first and foremost you're asking for math what's talked about in the brief is that there's probability is you have to deal with the fact that in a cold case where you don't have any other evidence that's that's pointing towards this being the offender and you're running a known sample against a database there's going to be states everyone is saying that you are going to be expected to find a match it wins a dental or or actual the larger the database froze and that's what happened when they ran the test and one mov found nine hundred three pairs of people that matched it not now to create a different manner of how is there any studies for this for the probability with a thirt they could i mean two of them could be an exclusion if it's sixty that he couldn't be but he could not be excluded based on their findings because there was so small sample that they were not able to determine if it was a six six or a six a what if it turned out to be unfortunate i think i'm doing the cross examination on the you know on what the state's evidence would have been had they've been had they been given the opportunity for a trial to to be able to actually confront the scientific evidence and what i'm saying is that there are questions to be asked and there are manners in which this evidence should be put forth in front of a jury because obviously this was found to be relevant here in another illinois case that was put forth by the jury put forth that what your understanding is that's not my understand what is your understanding my understanding would be obviously this is going to be a smaller number that says you know when we're dealing with nine hundred three pairs of people out of two hundred twenty thousand clearly that means that there are you know it's if if the chances of somebody else in this room matching up with the same night as as need probably isn't great but once you get to a set number at that point you're going to expect to find people that match up at a certain amount of profiles  and what you're seeing are or when you're looking at the underwear profile which is here in the third column the effect you match but there are two in which that their findings were three in which the findings were inconclusive and there were two in which it could be a match or could be an exclusion and that's where you get language such as the defendant could not be excluded as the sample so when the state is referring to this as a match that's not a fair assessment of the apple that was the problem the victim's underwear i think logically that that is that is very much a possibility and that's what but the bottom line and i mean what all this is about is that ordered the tester to proceed in that case which obviously the evidence was found relevant it missed will put forth to the jury computing experts were able to testify to its significance and that obviously is something when you're dealing with these partial proceeding on the on the pleadings and then made additional argument in and specificity but was primarily relying on the pleadings terms of what they were proceeding on at the end of that hearing they made it clear for the record they five minutes ago i ten minutes ago but if i don't she wind up in about a minute given the extraordinary power that d n a evidence has on juries thorough confrontation of the evidence is  critical to achieve a fair and reliable jury verdicts as a matter of practice we should be striving to characterize the probative value of evidence with as much transparency for sedition and conservatism as possible a statistical frequency and whether there's any problem with that defendant obviated the issue by switching to a consent defense that defendant claims that he was more or less forced to do so by adverse rulin from the court that is not true the defendant raised the motion raised in a motion to exclude evidence because of the destruction of a d n a sample as an alternative form or big that he be allowed to go into the codice database to detect whether or not there were nine low site errors however when the judge ruled against him on that motion he did not ask for the a ruling on the alternative form of relief he never addressed it when he asked when he asked the judge to reconsider the original ruling he did not address the alternative form of relief and on the morning of trial the morning that they were to to go to trial the defendant filed eight an amended  of the question if there is a problem with the statistical evidence and the method that we arrive at that statistical evidence it is incumbent upon the defendant to make a record you cannot so basically cause what you're doing with th intending to ask questions on cross examination on this issue now he did attempt to and the judge denied it because this was already agreed to so here we have it at defend it attempts to try a case under one theory whatsoever that he had any kind of expert testimony to criticism in a court testified under oath subject to cross examination that there was any problem whatsoever with the method of calculating these statistics and these statistics are damning and defendant doesn't argue otherwise the point of effect is this case tried under one theory all right and ben did not challenge that to challenge the evidence of his identity he only challenge whether or not the victim was lying about  review for abuse of discretion you do not have any evidence that you can review sworn evidence to testify testimony said cross examination if the subject of the mathematics that you could review is that the hearing where the judge denied i'll try to do it among the will except that you i think that the ruling was was actually had on the motions i mean when it particularly when at the conclusion of the the ruling to exclude the evidence based on i believe it's rule for us seven for fifty four seventeen but doesn't specifically make reference to the fact that within those motions is here is on the request for the testing on my database  and the thing i didn't mention while i was you started to indicate that if we don't take care of this matter now this this will just have to be addressed and post conviction proceeding of trial counsel in effectiveness we don't even have to go that far  part of the office and had he been able to present the contents of this to the trial court and if this were able to be brought forth to the judge i believe you know again he just says things would have been different but these matters were in front of the court before to cross examine the state's expert regarding the arizona study and that those trial it was you know it wasn't it wasn't properly written in defense counsel motion but the crank a motion which is issuing a brief that that matter should be when you think that you have to go to straight string theory in order to find someone else is going to match a nine most site and arizona they find one hundred forty four pairs of people that actually crime i think that that absolutely changes the the way the w