answer questions on the rest your honor is every criminal defendant has a right to a fair trial by a jury properly instructed on all relevant law mr connelly did not receive this history received an incomplete instruction on a critical issue in the case whether the child complainants actually made numerous alleged statements to doctors that implicated connally in the church runs the statements of issue were all hearsay and the complainants testified at trial that they did do you i'm not sure i understand the time frame here but the it appears that in two thousand and one or beginning before that but it thousand and one is when both of these children were taken to the hospital they've made statements regarding the offenses and so that that's when the actual outcry statements w timeframe that he was arrested in two thousand and six yes your honor was he out of what was i not sure i didn't get that from the reading of things it's actually a time lag i'm not sure the jury would have gotten it either  think they did i'm just saying you know what is your understanding because they testified it almost ten years later so it's kind of understandable that they may not have remembered things that they said to actors from ten years that's all that's true you honor today the time lag it's a little bit unclear but there was there was a police investigation or something and shortly after the statements which the statements at issue are were made in february and march of two thousand and one there was a police investigation was he actually arrested sometime in two thousand and six he was arrested in two thousand and six because police there was an active and investigative alert for him and police stopped him simply because he was walking in the middle of the street and traffic a police officer stopped condit's desire to represent himself there is a change of judge as there were many motions filed so there was again another significant delay the trial for to may of two thousand so sometimes you know there's cases where the children would indicate that they don't remember what they said because their tender age like a six year old might not remember say something or maybe they never set off to but here we have people that are with the trial actually takes place there twenty and you're twenty and twenty one and seventeen and they they basically said they could remember statements they've made ten years for which is sort of a completely different situation than some of these other situations where you see a statement i don't remember saying that do you want to meet i do your honor and that's true that is more relevant to the portion of the jury instruction that the jury did receive which is what weight to give reach but it's also there is also evidence that no one took her begum notes at the time of the statements and that's very crucial here because we do have a very long lapse in time which is not really attributable to anyone  one's fault but at the time of the trial no one can remember what was said and both of the doctors admitted that verbatim notes were not taken and in fact dr epstein who conducted the victim sensitive interviews of both complain testified that it with respect to the interview of m l which most of the charges are against conley out pertaining to and now the note taker in that case did not do what he was supposed to do he was supposed to take forbade him notes and he did not and dr epstein testified that it was clearly not it was is it was supposed to be the notes of that interview and that's very relevant to there's no question that the interviews took place and that some statements were made but the particular statements are pretty crucial here and that's what we don't have we don't have evidence of exactly what was said and that's why the jury should have been instructed that it was up to them to determine whether the specific statements were made but they were instructed according to the the jury should have received the instruction so that he could be allowed to weigh the credibility of the statements and told how to do that they jury was the dependent never allege that it was an error that he did not receive instruction that it was allowed to determine whether the statements were made so surgeons a little bit of those addressed the same jury instruction it's not really on point as far as the legal analysis of his shoulder do you think that was something that didn't need to be discussed after the state's response brief relied heavily on  sergeant to say that this doesn't fit within the second prong of the plane or rule that this isn't really a fundamental right this particular instruction you don't think that that that was something we might want to have heard from you before you came here desk that's the case here our i don't think it's something that would have needed to have been discussed because it says this is not a fundamental right so are you saying it is a fundamental right when the bracket terminus the authority for that and that was decided after sergeant by this court just last year right that term and involves a defendant statement and there were other were there not there were other errors in that case your honor but the fact that this court in term and held that the failure to give the bracketed portion of the instruction it issue in this case was plain error under the second prong and denied the defendant a fair trial and that is our contention here as far as the facts that term an address the defendant's statements and in this case we're discussing a witness statement if anything it is more important to give the instruction when witnesses statements are an issue why isn't it i would think that it's much more important that the instruction be given in the case of it and state your honor the bracketed portion of the instruction must be given unless according to the committee comments unless the defendant admits this th statements were made and it's easier for a defendant to do that where to deny that the statements were made when we're talking about a defendant's own statements because he can he has the ability to take the stand and either admit or deny the statements here we're talking about witness statements that were made essentially in private where the defendant certainly had no opportunity to be present for them and he couldn't have affirmatively denied that the statements were made because he had no witnesses he could have called he certainly couldn't take the stand and say you know personal knowledge about whether the statements were made you know the instruction in sergeant a couple of things the court discusses one there was a i'm hearing under one point yes which we have here that tells the jury that they are the sole arbiter of the credibility of witnesses that that actually emphasizes that larry i mean that that is exactly why sergeant is not on point serge i'm not really sure i do know this the statute that directs the the that surrounds this one one says what's the instruction must say now neither of you the real question here is whether the failure to give the practical portion really amounts to a structural error fundamental right in this particular case richmond address the bracketed portion of hope alive in point six excuse me of the of the corresponding jury instruction three point zero six zero seven and you're saying sergeant doesn't really dispose of this because it e statute requires that the jury be told that they are to consider the weight is for you to determine what weight should be given to the state i mean that's what the language of the statute requires and this was actually  heed to the actual committee comments justice also went on to know that the committee's note regarding the bracketed phrase was not in the nature of a recommendation but it was in the nature of the requirements the supreme court has designated determine whether error occurred and here to stay there's really no argument that mr connelly it made it that the statements occurred he did not he cross examined thoroughly on it and he introduced evidence through the process of them a nation of the doctors that they did not remember exactly what statements were issue it's particularly relevant when we're discussing things like the penetration counts because the state relies heavily on the doctors use of the word in when it's really when and now they're not even testified to that at trial and when the doctor admitted that she did not take the bait of notes and she's merely really relying on summaries from ten years earlier when you look at the instruction itself the bracket it's the it seems to me you know i'm just the good to see my best option all that applies in certain circumstances and that circumstance would be when there's evidence that the state was not me and i think the point that just the right questions here this is not a affirmative evidence that the statements were not made if you're going to call the line that it it instructions to bracket a portion of the instruction were only tendered when the defendant is able to admit or deny at himself that it would be  honor what mr connelly is relying on is the fact that they that nobody remembered it and that the doctors admitted that they did not take necessary they didn't actually forbade him notes and when you're tired so we're not contesting that sustainment for may but that the specific statements the state relies on for proof particularly of counts one against and now alleging you know penetration the back for take your statement was made that actually is there is affirmative evidence by virtue of the testimony on cross examination of dr they said this is not fundamental right for purposes of the play here rule and i just don't think you can read this to say oh they were only talking about they were talking about the whole instruction being missing you're talking about a bracket so i don't really see how you really get it sergeant turban is not we are bound by sergeant this is a supreme court statement about this particular under the second right and that's the only problem you've relied erect your honor i cannot disagree with the court's reading of sergeant except to point out that the defendant in that part never contested never argued that the failure to tender that  act the people the state of illinois you are absolutely correct and your reading of sergeant when the entire instruction was missing the court still didn't find it was funny a fundamental right had been violated here did not concede that the committee notes for three point zero six three point zero seven applied here it was just as a form of guidance as something that was similar but it is interesting that that same comment is not in eleven point six six the committee did not include the same committee comment that was in three point zero six that applies to penn and statements here so what is the point of the bracket language here certainly not as the i p i is to it that the state is more significant than or witnessed absolutely and why why would it be because you're dealing with a defendant statement which is more damaging than just a witness stand in order to present some evidence you didn't make the statement if the cases are clear correct but as the concurrence in richmond said and in acol sag it needs to be more than cross examination about did you video record it did he make a written statement which is basically the kind of cross examination that was done here so we really have to get that in light of sergeant if we actually do not and in the turning case they found that the evidence did i thought you might be able to help me out but believe it yes you do with that did it infect the entire trial process as opposed to one part of this that doesn't deal with like  a defendant's right not to testify that this is a witness who actually did not say that they didn't make the statement you were correct in saying it wasn't that the statement was never made their it and that goes to the weight not as to whether they made the statement or not the way he got on the stand and said they didn't make a statement they just said i'm memories of faded a little bit but to be quite honest the basic information that was introduced was basic and it you didn't really need more than knack you didn't need to know exactly where in the house the event occurred what time one day what was the lighting like they was there another in a question where the jury said we are really having a problem back here judge give us a little help what is reasonable doubt being ok so now right now if there was more than one error and the f not with the state but you know the legislature when they allowed for the introduction of these states specifically the end dated what the instruction should say and they the  the jurors are to be told that they are the they are to determine the weight to be given any particular testimony and the credibility of witnesses there to be considered the factors such as the person's think the idea instruction when the jury is told twice that they're the sole arbiters of the wait to be given testimony they can decide whether to either take it or reject it portion certainly add something to that but but in this situation it actually doesn't yeah the whole lie because nobody's disputing that they made statements it's a question of the memory of what those statements  so therefore the packet is is in a pickle and it should only be considered a way as to whether the memory was good and i think you wish to add unless you have any other questions we ask that you have from the consider this matter indeed there is broad language saying that the entire the entire missing instruction in the context of that case was not a fundamental error we would say that it was here and that sergeant should have considered he said he never had the opportunity to consider whether they pointed out that one fifty one fifteen hearing did not take place and in this particular case the jury was left without any obstruction because they have the want to three think they did have one one point  it should find the error occurs when the bracketed portion is not given and that's that's different the main i agree with you there you can always say that if the bracketed portion suggest it should be given  suggesting that these statements were given but that's that whole that's a that's an issue that in my opinion we don't really need to reach if we can't say that this is say what that meant right whether error occurred and here i did but i say then you have to decide whether that error whether this error amounted to the denial of a fundamental right so that in fact th entire trial is so if if you can't see a day when the supreme court has already said you know when the whole instruction is missing we don't have this fundamental right under the second  g that's what i'm talking you know this is whether or not it was contested it's like yes we could go into this whole discussion but do we need to do this if we can't say that when it's all of us if it's not right at the very least your honor i think it in this court should do so as to count one of the indictment against him now because that is the count we raise reasonable doubt on the evidence was very yes i agree with you but the terms of you know proceed you see an order and everything else you have raised this in the context of the second prong of the claim here and i don't think it's fair to say now we should look at this under the first crime i mean that's really just totally it's not like i don't i'm not going to i mean if you're asked just do that we're certainly not going to do that now we didn't raise them and it's you know we're at oral argument so i'm not going to be i just don't think that's right for