all right our fourth case for this morning is muhammad's against  confront his accusers were violated by the wisconsin court's fabrication of the rape shield law to bar him from presenting incredibly critical evidence in his defense and i believe that i'd like to me to get some sense of why the points you're making are different from the points that would normally be paid by somebody who was blocked by rape shield law because you know  has never said that these laws violate the sixth amendment confrontation rights or or any such broad rulings so that's a problem yes i agree with you on that point as to the general application but in this case i believe that there was a violation under chambers because first off the wisconsin supreme court never considered it the chamber's argument that was made to the court which is important in this case because of the way but it's really somewhat different from that because they put it wad of weight on it looking at the general good or the government interests in weighing this evidence as is being inherently prejudicial so it already court found that the acts the prior consensual sexual acts that were attempted to be admitted into evidence were profoundly dissimilar in circumstances from nonconsensual intercourse following a knife fight but why isn't that a fact based conclusion i mean i'm going to first think that comment that if you look at this that sort of flipping around if you look at that was constant supreme court's opinion it's clear beyond any doubt that they know that they are dealing in part with a constitutional right to present a defense to confront adverse witnesses they talk about that and given all the things the u s supreme court has said that the state supreme court doesn't even need to write that down sixth amendment chambers but that's not necessary i agree with that however in this case there was no consideration i believe chambers acts as a backstop to the barring of evidence so in this case the there was an application of using the rape shield law to bar evidence but you know i mean you have to take the wisconsin court's analysis within the confines of the rape shield law the prior acts were nonviolent supposedly loving acts they were fully consent will this was an adult young woman at the time she comes from pakistan with her father they don't look at all like coming in you know with a mask on a knife and blood all over the place and you know all the rest of the details of this assault well your honor that assumes that what she's saying is true and there's a reason a lot all over the place made it seems quite a that well your honor i believe that the issue of admitting this evidence really goes to the credibility of the two parties because and it's only marginal evidence right because evidence in about the about the nature of the relationship it's really actually the final graphic details that are kept out well they were allowed to admit evidence all the way up to the fact that mr sarfraz is wife found both i and him in bed with their pants down but they weren't able to fully explain the actual nature of their relationship and i think that's why i'm saying yes the final i'm not going to repeat it it's in the briefs enough but the final graphic details are in fact kept out that why isn't that just a state court drawing reasonable  i don't believe that is a reasonable evidentiary line because they never considered the issue under chambers they gave it very short shrift they talked about it and mentioned that the confrontation clause is not absolute that  looking at the issue of of whether there was actual reason consideration and i think when you look at the supreme court opinion in this case there really wasn't reasonable consideration of the things that this court has looked at in both coop and also sussman we're looking at whether the application to bar is really the first step the second step would be reviewing whether under chambers that evidence should be allowed in because of its importance that it was defense for team precluded from presenting because this particular evidence didn't come in he presents evidence that it was a an intimate relationship maybe it was just sitting in bed together without certain clothing you know that he presents they just that they had a loving relationship and so it's inconsistent heat suggests to the jury with the assault well i think when the jury was weighing the credibility first off the the trial judge in this case allowed the jurors to submit questions and one of the questions that the jurors submitted asked about what is the actual had they had anything other than hugging and kissing as far as a sexual relationship so it obviously was something that was weighing on one juror's mind and when it comes down to a credibility battle like this to describe the reason or the probative value merely by saying that just because like a propensity type argument under for a for b where just because she consented to these other sexual acts with and she consented in this case that's not the real argument that we are making in this case the probative value really is weighed in looking at the way that it fit into the entirety of his defense because there was a piece missing a very critical piece which would have allowed the jury and the court of appeals decision wisconsin court of which is at page one sixty seven of the separate appendix explains why this evidence was so critical and really of course the wisconsin supreme court doesn't see it that way and that's the court that we are responsible for looking at i agree on a but whenever the court looked at the dissent he's third prong and applied it in such a way to basically act as a bar because i don't think there really any scenarios where if you're weighing it against that he did not have to conceal his identity and forces way into the apartment that they had discussed marriage that they also that she consented and perhaps initiated the sexual intercourse that occurred in this case and so those are the reasons why i think it goes beyond just a general bar and i think if you look at the wisconsin supreme court opinion that it sets up a standard that is very difficult for a defendant to me thank you ok thank you i'm african american males because that seems far more damaging to his own niece than any of thinks your honor i agree that it is a bad fact however i think that that raises the importance and makes it even more probative and more necessary in order for him to receive a fair trial that this type of evidence would get into because he did lie but he could still be found credible based on the other factors that are considered and the other evidence that would be in there thank you thank you  judge to conclude that to allow in evidence of there were mantic relationships that included hugs and kisses but to exclude under wisconsin's rape shield law the sexual fondling that mr starr present taints occurred in that relationship the wisconsin supreme court acted in an objective we resemble manner when it up held that discretionary determination by the trial judge and determined that the low probative value of this evidence as to whether the victim consented to the violent things and only intercourse on may fifteenth two thousand and ten failed to substantially outweigh its presumed prejudicial impact under wisconsin's rates shield law so mr bryan i would like your comment on what we've been talking about the wisconsin supreme court does drop the ball on the sixth amendment aspect to mention said and then it turns to the wisconsin rape shield law and then it says though it forgot that it was in there and we don't know whether it thinks these are the same standards if so are they well first of all the way it was argument was conscious for what was essentially under the wisconsin statutes and the wisconsin case law the coolest sano in the jackson cases in the standards that are to be a clock and a paragraph thirty seven of the opinion those conses from court clearly discusses both the federal and state constitutional protection and the right to presented offense across examine and confront the accuse constitutional test and so i would suggest that that the opinion does more than satisfy the a dressing the federal constitutional standard you know order to comply with the a a and to deserve deference under it less than a line of cases is the chamber's baseline of cases and the court interprets that state constitution in a similar way to the federal constitutional right correct yes so so it's chambers is embedded in that line of cases and and in fact is cited in the wisconsin supreme court's decision in this case it is it can't be said to have been overlooked no as a reasonable policy decision which checked sexual assault victims from harassment well we don't care if we don't have an attack on the rape shield law that's correct it is and that is not really the issue the issue is whether this was proper and i don't want the application of chambers round the hearing to vs rector presumption applies even if the court didn't separately analyze the federal claim it was clearly aware of that wrong and and and if the decision was can be preceding it it was constant supreme court as in those cases did not in reason apply chambers to mississippi and davis we alaska and any of the other controlling supreme court six men are precedents holds  it failed that test and the court's decision obviously acknowledge that this evidence was material to the defense that the defendant was offering in the case and so recognized the should that play into the a now if this i i don't think it should play at all and i think the jurors are allowed to ask questions that doesn't mean that they're going to always ask relevant questions or pertinent questions and oftentimes i think jurors are wondering what's missing or what else happened but evidence is excluded for all sorts of reasons you know sometimes against the state under the fourth amendment sometimes like here against the defendant in a rape shield law that the jury just can't ask that i can't get and it is not allowed to have an answer to question if you assume the doesn't it i guess i guess it probably dykey i can't speak for him but i know he relied on that in his opening remarks and you know again i have never been on a jury  never senate deliberations and i don't know what kind of questions are asked during deliberations but i would imagine that sometimes people touch on irrelevancies or matters that are too prince additional and should be considered and so just the fact that this was asked in open court know i you know again i don't think there's a logical connection between that the and the violent vegetal intercourse that occurred here and that rape shield law is designed to disabuse jurors of making those kind of collective peripheral matters that may be so prejudicial that you know that that this then as i pointed out to my brief that paints the victim here as if you know if you put this  in that it could paint her as you know some person of poor character who is out to have sex with married men against their his wishes and things of that nature that are not pertinent to the central issue here which is whether this woman was sexually assaulted violently against her will and may fifteenth two thousand and ten and i would maintain that that question probably properly would be just one point in the briefing at the wisconsin supreme court we discussed at length the pulitzer i don't test which acts as a backstop but chambers backstop to if evidence is being barred and that was not considered an honest case at all the of the factors there's a lengthy set of factors that the court must consider none of those were considered in this case and i believe that that is is truly  it decided the issue on the merits if it was presented and it was presented yes and then we were to imagine whether there are good reasons implicit in the court's decision to find a reasonable application the constitutional standard just very briefly to that point there the final factor that they considered if you look at the factors under dissent is that they considered they were different than the considerations and pull it sounds so that is where i believe that the court failed to adequately address that issue but they're not different from chambers while they they are not simply really different from chambers they're somewhat different in the in the sense that they don't wait the scale against the admissibility so it doesn't require the court to say that this is inherently prejudicial so that that that is just an attack on the rape shield principle no  it's not it's there are certain instances where the rape shield law would properly bar evidence from getting in but in a case like this where the assumption that it's being based off of meeting what the probative that value is being weighed against is that a that there was a violent sexual encounter is going to be impossible for any defendant to meet because of course it's going to be dissimilar that's the reason why your attempting to admit that in the evidence thank you all right thank you very much thanks