everyone we're ready to start this afternoon's proceedings i want to thank all the lawyers for being willing to participate by video we do appreciate that and this would be a good time just as a reminder for the way or so who are excluding evidence that the alleged victim had been sexually assaulted by another person on another occasion that he would only offer this evidence to rebut the government's to expert testimony about the facts of sexual assault the complete exclusion of this evidence details of a prior sexual assault when that evidence is on offer to provide an alternative explanation for the government's expert testimony about the effects of sexual assault here in the exclusion of any evidence that the alleged victim that suffered a different sexual  created a risk that the jury would match up the experts testimony about mental help substance abuse and emotional effects of sexual assault but the ledge victim's testimony about her drug use of cutting and mental health problems concluded the based on that match up that she had in fact been raped in the absence of any evidence of another perpetrator determined it was that year who did it and in fact the government invited the jury to do just that in the final lines of the closing argument and the government highlighted the expe and all the only purpose for this testimony was improper bolstering it wasn't testimony just testimony about things the jury might not understand otherwise i think that might delay reporting or change the details of the story over time or why there might be a lack of  was testimony linking the general characteristics of sexual assault with being at the time of such assault and here the expert went beyond that and even said that these negative attacks last longer can last longer if the victim recorded the incident and people didn't believe her timing issue and i know that the parties kind of assume that we certainly didn't everything that the prior incident was several years before the and in this case but i do want to make sure that we don't actually know when that it's the defense was recorded from asking the victim about it or asking any other witness about it so we actually don't have that detail about when it took place but looking at what we do know it may actually be closer in time then than we assume here that we think and i'm looking at the actual foreclosure notice th we already have about a year and a half between the mother saying several years ago there was another rape and when this incident was and so i think if you pieced all that together several years ago places this the prior assault closer in time than maybe it st appears by just distinguish fair steps in my case again was the timing out in there but that was offered for a different purpose in that case and the missing piece from that case that's present here is is the expert test i think the key thing that ties this case to bear stops is but there's an expert witness who is testifying about how these are these general characteristics of people who have been raped or assaulted and then we have that they've been coming in and testifying testifying about those general characteristics that wasn't present in the hot goes history any of those other cases  i have a question about your standalone argument that the expert testimony should not have been in that it off and you did make a distinction you said this is not the kind of situation where you're the expert is explaining why someone didn't believe something like that which i think maybe you're referring to are johnson case where we sort of extended this idea that her testimony from children to an adults do you know how what do you think your the identity of the expert witness and the testimony in johnson at least as we know from that opinion was very specific to a domestic situation and long standing domestic violence situation that did not have the involved aspects of sexual abuse but not just that and if you look at the court there said she was testifying about again like you were saying is why would you why would a person remain in it if you say relationship why wouldn't they report the abuse why would they attempt to state and that's not really an issue in this case at least with respect to  she emphasized people who have been sexually assaulted so that's not a test her testimony here wasn't really covered at all johnson and so i don't think that it precludes argument here and i also a distinction is that in the johnson is the government is using that mode but the thing that expert testimony and using it affirmatively to basically bolster the alleged victim's testimony that she suffered these these general mental health and substance abuse problems and those match up with victims of sexual assault interrogation had to stop and last year their counsel was made available or is that your himself reinitiate of the conversation and neither of those things happened instead it was the agents who review sheet of the conversation i immediately demanding that is that you're submit to a search warrant for his d n a and this was interrogated within the meaning of supreme court case meaning that the agents should have known or knew it was reasonably likely to elicit an incriminating response it was an immediate demand is that your system provide evidence from his body related to this investigation without any break in time in place or conversation when we wait by the follow up didn't the agent then say no no this is different i don't want you to this is and you have no choice here got to get the d n a i don't want that to influence your decision to to talk is that the kind of thing maybe you we should be encouraging agents to do it almost seems like at that juncture maybe that was the right thing for him to say voluntary xavier statements were later on or how and coerced in that context so i think it's it's that by rule of edward said it just isn't concerned with how polite and kind of follow up be that agent was later time as long mean this happened without a moment of silence and so again i would just reiterate that the officers the agents could have gotten him an attorney and they could refuse to take a statement and there was at least some cooling off period where they could awaited until he had his travel arrangement got his attorney and your honor my name is jennifer manning and i'm an assistant united states attorney in the district of south dakota superballs office and we are asking this court to affirm the decisions of the district court on the four issues raised by the sexual assault victims rd in barring evidence of a prior rape of the victim in this case and forth in instructing the jury as to silence and face of an accusation and i'll follow the order of that also found that exclusion of this evidence did not rise to the level of a constitutional violation which was the correct ruling in this case but also united states vs never misses a shot and united states  appropriate here as well what we're looking at here is d an allegation of a rape the exact statement from the mother was that she believed the victim had been d raped several years ago when she was younger by a different don't believe that it is because i think when we talk about their socks we were talking about the rape of the young boy that took place from their stops and then at the exact same oxman time he was going through the sexual  three older boy it's so we're talking about contemporaneous sexual assault going on here we had such a spread of time that went on that i don't know that we're looking at the same thing especially when we've got testimony about say i'm really concerned and i'm going to get the drugs and i understand that certainly i think that when we look at this case versus what we're looking at their stocks we're also looking at just a general different case in bear stops there wasn't any other evidence besides the young boy's own testimony that the rape had occurred here we're dealing with also an additional quantum of d n a evidence we have multiple witnesses that came in and testified talked about amelia's immediate reaction right after the ra told several people that she'd been raped by the defendant including other individuals who were at the home when this happened and her mother in law enforcement and nurse practitioner she never wavered on that we have a we're just looking at a different ultimately is where we end up i think on this case but i do understand you look at the various stops issue in of itself what you're saying with the expert testimony paired with the timing and the fact that she did say yes these effects last a long time however here we also had testimony and cost that was elicited from both the defendant and her mother about alternative reasons she might have these types of victim no other alternative reason for why she might have some of these p t s d asked type symptoms so there were alternative values the defendant was able to go down and talk about with the child because of sort of the unusual characteristics and things that had to be explained to the jury was just sort of general mental health problems that is significant and concerning but why is that outside the sexual assault because we didn't have just one victim of sexual assault testifying here we had three women testify that they had been sexually assaulted by this defendant and frankly their reactions to that ran the gamut not all of them react the same way not all of them just close at the same time not immediately wanted a more enforcement investigation into this and i believe it was helpful to the jury to understand that there is not one standard reaction and even if you're dealing with adults i think that johnson's extension of the rule that allows expert testimony and we're talking about child sexual abuse to adult sexual abuse  very helpful in these cases and it serves to show the juror the jury that there isn't just one way to ask if you've been great or one way to act if you're the victim of a attempted or effectuated sexual assault assault at the hand of the defendant where he had attempted to rape or actually did rape that while they were drunk which was very similar to the rape of a meal we were she was raped by force law she was asleep versus johnson on that testimony as to characteristics of adult sexual assault was upheld by this court it was not limited to only by the characteristics of the domestic assault victims o expert gave regarding the i guess increased x troubles of cell if the victim isn't believed that the criminal justice system doesn't go her way  doesn't that sort of tell that get the jury some kind of an indication that in order to withdraw you know make sure that this young person is ok they have to believe her as well isn't there a risk there there may be a risk there i certainly don't believe that that was so focused on her testimony that she did discuss numerous numerous i different i actually think she can take on four different factors that can influence one's ability to cope with and react to a sexual assault so it certainly wasn't highlighted along to you that it wasn't highlighted alone but it isn't a direct appeal to prejudice but isn't that a huge i do take that point i think that ultimately the breadth of her testimony went beyond just the cause of passion or call the prejudice and it truly did discuss that variety of reactions that individuals can have  testified alone about the death for money as the facts upon a person if they're not believed yes i can take your point wholeheartedly that that would be overly prejudicial testimony but in considering the again a harmless error miss your grave or her testimony really without it i don't believe there would have been a different result to the trial again and we have the multiple witnesses the d n a evidence own testimony and therefore thirteen witnesses as well i believe without this i don't think that we're looking at a different result com oh i do want to tartars very briefly about the understand eventually what happened is that there was a great deal of discussion in a couple of cases and they said well you know if the defendant then asks for the instruction biotic are you aware of any case anywhere in which this type of instruction has been given but i do is trick or the traction of the defendant i am not your honor i'm not aware of any case i really that takes up this type of pattern jury instructions say that this instruction is limited to only being requested by the defendant so it appears that the th circuit and the night circuits abrogated instruction limited in any instruct her limited as to prosecution would have been free to argue this in our closing argument without the jury having been instructed as to how they should you know that type of evidence so this was probably of a better benefit to the defendant to have the instruction then it would have had it not than i dressed at all if the jury was instructed that they needed to determine whether or not you heard this statement and then determine whether or not it was the type of statement that he should have denied it ear i think you need to and mutes here thank you sorry about that i'd like to start with the issue of heartless air st of all the exclusion of the rule for twelve evidence was a constitutional violation so any or  would have to be harmless beyond a reasonable doubt and i do not think the government has met that burden here but more generally this because there's really no to the experts testimony in the jury instruction and the exclusion of the port au prince we're just not heartless  those credibility in this case was the central issue the question here was not whether they were a sexual intercourse at all the question was was this a forcible rape within the meaning of the statute or was a consensual sex or something else that's less than the level of forcible rape and any evidence that bolstered the credibility of the complaining witness by saying by matching up her general description of her mental health her emotional impacts with being a victim of sexual assault that was just improper  during and it cannot be considered to be harmless in this case and the d n a evidence doesn't go to that central question that either it doesn't go to the question of whether whether this was a forcible rape or whether this was something something less and what happened in this case was that this expert witness was something that was evidence of a government brought out the government use that evidence as a sword it probably was marginal we would argue it wasn't relevant at all it's at most marginally relevant but the government did everything they could to match up that expert testimony to the alleged victim's testimony about her experiences after the assault but then cut off any efforts i sent here to her body against and say well there may be another reason why she had these experiences and just the general cross examination about well you know you grew up in a house that if you say relationship and parents use drugs and alcohol that just wasn't enough to cut back against the power of that expert testimony in this case and so we we do cement that that christie here groups money in general was unfairly prejudicial for  you talked about that especially combined with the exclusion of the rule for twelve evidence that there was in all likelihood another assault within the same general time period that could have explained some of these attacks and because they were they were constitutional eviden