early things he taught me which i'm sure is probably not a unique thing among lawyers is that when you have the facts you argue the facts and when you don't have the facts you argue the law and they don't have the facts or the law you wave the bloody for the united states of america and i would suggest to you that this case doesn't it tanny flag waving from our perspective because this case is grounded in the was because the mother of the victim had taken her child to go confront another boy who supposedly had showed some sexual interest in this girl and he was and she wanted to confront that boy and when she confronted that boy she wanted her daughter's phone and a daughter said at that point you're not going to like what you see on the phone and what was on the phone was an accusation from another girl about her having had consensual officials and spoke to each of those three school officials telling them and and maybe not quite certain terms but in very understandable terms that the sex was consensual i would suggest that that that beginning alone says you can't just simply rely on this adage that like if she can identify him and she says sex that's  for the information gathered on the c b c interviews interesting and interesting from this perspective they are the sers had information that they knew that this woman had made previous claims that the sex was consensual and consent i would tell you differentiates this case from every single rape case that has come up on on and on and a claim and he and ineffective are unconstitutional argument and we are dealing a separate matter because again the case law says that if you've got a minor who's making these accusations you need more about just that you have her view excuse me all of the olds cases are dealing with minors that a bit least the ones i read who appear to be under the age of seven and there's a there's no britney as competency issue that's going on in those cases it clearly isn't going on here right so if you look at the cases that say well if you're under seven we need corroboration that's really more about the witness is competent so three year old testifies in their description is open to interpretation you look to other evidence in order to make that determination is that ar cases just entirely different or is there a principle there and should roll here i think there's a principle that says when before you turn of legal age your not capable of making those same kind of decisions obviously there has to be some kind of sliding scale to take a nick into account the statement of a three year old compared to the statement of a fifteen year old i think that's common sense but it still doesn't reach the final hurdle which says that ration and all of those cases there's injury there's a hospital records there's there's all sorts of things that simply aren't present here what kind of corroboration would there be one i'll just described as a date rape where there where you're not going to have the physical injuries and no witnesses so you really do have two people the any one of these three school counselors they would have been under a legal obligation to report that and they obviously did so that's the kind of corroboration if it's a consistent story that might be enough to be if you look through the state's brief they don't address a single one of the facts we laid out that the cops van that the police knew at the time of this arrest in addition all of arrangement but she was afraid to tell her overbearing mother second she told her best friends it was a consensual sexual encounter and that she was proud of it and that she and then she was happy that it purposely they were asked to take the phone by the victim's family and they didn't they allowed her to screen shot what she wanted to scream shot out of it none of which of course indicates either rape or let me st it is for a question close by judge kelly judge kelly you posed the question what kind of corroboration in a case like this maybe d in a he's said she said situation d would give rise to i took it the probable cause to make this case more insignificant and it is our answer this way the probable cause the police found by looking at the same record sexual assault nurse report done or himself that afternoon this briefing by my opponent has emphasized in and out and over again that there's been no corroboration the strongest corroboration like the case be fore are the lies that were told by cantor his parents let him talk to the police that recording is available for you to watch and i certainly hope you do because  for feeling the evidence most favorable to theater it dissolves when you look at that video harriers video explains the st half but he's lying outright i was never there i don't know or etc et but then when the police finally get him to admit what he did the lie that he admits is even worse and this is the corroboration judge kelly the corroboration is to say she raped me she wanted the sex i was forced to go along with it she bragged me into her bedroom she turned on the music and she mic me do it when asked why didn't you get stuck up if you didn't want to be raped while i was just into the moment and that's a quote which means of course he could not control his body at least two officers could believe that it was some remote probable cause evidence to believe they have a right made in on the right occasion what troubles me ove where here is the mix in stories you judge kelly and your honour's there has been a prevalent in the subsequently learned is immaterial nothing has changed in that regard i hope that answers your question  let me go on to say that i'm also concerned about the intrusion of this subset of due process toward into the fabric of probable cause or arguable probable cause in this case and if you assume that none of that gave rise to probable cause then it seems to me own believable to consider can to even view the possibility that arguable probable mcneil is what we have precisely going on in this case i'm also concerned that the intrusion of this substantive due process tort whereby the discovery order document thirty dollars allows for mental intrusion into the minds the officers so that proof of some mens rea has can be proved to substantiate the th amendment claim is then used and turned around as witnesses to the event and no other evidence should we be looking at these kinds of cases differently and requiring anything in addition to just justice and as you know i'll say just to a statement well the videotape i certainly think will help all three of you please watch it because there you can study the demeanor of the youngster to enter with it and i understand so you're saying then that purpose was up perhaps having sex and he turns around and accuses again woman has never had sex of raping him and he scribes that in the particular terms that he did oh she mounted me she wanted i  probable cause based on credibility that certainly yes that certainly helps there's no question about that ma'am one of the things that troubles me about this too is that this clash between  the absence of probable cause or the presence of it and the difficulties that it creates when for example in the eaves case they finally decided well if you're going to come in and prove th amendment  you think about this case in terms of the clearly established law this circuit has made since one thousand nine hundred and eighty seven let me read it to you from your matthew's case the clearly established law by about six or seven cases it is that law enforcement officers are entitled to rely on information supplied by the victim of a crime some indication the information is not reasonably reliable d or trustworthy well our st of all i think it's interesting that the knowledge meant about probable cause based on credibility because here you got five statements including one made to her mother that the sex was consensual carries the day and i and mr frank said to i thought she ended up telling her mother that it it when she was far something and that's how we ended up that the law enforcement took the statements and this is how it goes on she told her that it was consensual everybody assumed it was consensual and then mom found out that they did not use a contraceptive screech the car in the middle of the street screamed up to this young girl and that when the st story came out that he did it anyway she gave no details statement it's about how the sex occur how did think sex occur i was just leaning and i so different because mcnair and mcneill the cops knew that the victim was displaying behaviors consistent with having been sexually just be used abused none of that here she gave a detailed the abuse that didn't happen here and there was medical evidence can come from and the abuse that didn't happen here the medical report simply says as far as any kind of  coal observation of the victim's body it was remarkable so there's literally no corroboration no way and there's clear crab aeration from people they knew about they didn't know what the is going on she's never crossed on any of those because the c b c officer doesn't really know what the cops are in the next room with the phone and can tell them and they don't capture him then and the next room can say procedures where they noted that the officers need it made a point of not talking to the girl all and i assumed there was a procedure that they'd like to send it to the c p c since it was a minor and that they are more they were trained to to conduct those kinds of interviews but when you send it there's c p c you have to give them all the information and they didn't they purposely withheld that because they have that actually came from the victim because this is a this is an alleged victim interview and it seems to me that if you're going to have this neutral examination and you've told the mother not to talk to that to the child anymore and and you don't want anyone to taint what so they're beyond words already been tainted i mean if you come in and taint the examiner doesn't that sort of defeat the whole purpose of the objective interview by a person who's an expert in dealing with children even in the c p c examination they say she bring things up on her own that hey i spoke with three people at school and told them and a way that they knew it was consensual that's why provided to the court in conjunction with the briefing this considered in the case will take it under advisement renew decision to course