i think trial counsel also here when he said that along with the judge but what travel counsel was was asking for in effect was a friday hearing for him to say i'm not looking for a fry hearing but i want you to exclude this as a motion in l but i still think it's right ok don't you is this person a yes or you know i don't know the first time i heard about it was when i read the transcript in this case a few months ago so  without a fight the  least considered using that because the price standard is the illinois standard i don't know what other way the trial court could look at a motion in limine a or any other motion regarding stati even some guidance whether he thought the trial court thought it met the frye standard or did so it's hard to review at this point in our our point it is merely that he should have looked at of course we those kinds of issues ah i raise those in every if you like done on these kinds of cases and i realise the hope in that argument is somewhat foreign born i have not we have not reached it but the recent us supreme court case u s free comstock at all would probably deal with the issues that i've raised in my third issue and of course in that case the supreme court has upheld the constitutionality of a very similar law in the federal court is similar to the illinois law but nevertheless the courts consistently go with i talk for a living actuarial review based on percentages of workers what concerns me and the reason i ask for oral argument in this particular case is the first point we raised having to do with all the appointed doctor dr jekyll was asking for assistance in his opinion evaluating donald stewart who deals with these actuarial static ninety seven are all the other actuarial zz because dr jekyll is not an expert in those areas and he found himself with an opinion that mr stewart was not or does not fit the definition of sexually violent person under the act in his affidavit indicates his opinion would be more three almost immediately dr jekyll is well known in champaign county all in the reason we point that out is this isn't a case where the defense attorney went hunting for  said well they have to why can't i have two and the appellate court in that case said well it's not quantity and quality there are other methods of balancing two against one things like that  i need extra help it's as if he was a brain surgeon and he wanted a second opinion from another doctor or he wanted an m r i from brief point out well gee his opinion excluded that field and therefore what difference does it make what the actuary and you know that's kind of true but the problem is that could because he's not an expert couldn't explain why his opinion was superior to the other opinions and explain it by discussing the actual variables it's not his area the other problem in terms of harmless error is the motion in limine by the state forbidding dr jekyll to talk about his inability to do this and court turning down maps that the state couldn't really go into if they had gone into it the court ruled well if you go into it you're opening the door and i'm going to let them tell you that it wasn't a d that extra help so what happened was the state was allowed to present all this flashy science actuarial and the defendant was unable to  counteract that with testimony except that the fairly abstract argument well he's since he's not a paedophile all the all the testimony that he's bound to repeat his behavior doesn't really mean anything because stuart was on able to counteract that very powerful evidence from the state and the state despite many silent on the subject  yes dr jekyll never said i want assistance for the following five reasons but my assumption was that the psychologist that  was asking for was somebody who was an expert in actuarial and so dr jekyll would have consulted him on those points and modify his opinion according to if if necessary or also have dealt with the actuarial evidence i know that the court in allen thought gee all you have to do is cross examine an expert balances the field but usually the best way to counteract expert testimony is with your own expert testimony it's not probably very few experts stop take you know you're right i'm absolutely wrong in this whole thing i'm that someone from the h s examined the person as well in preparation for the s b trial so that's why the state has two experts and we know from in ray allen that there is no constitutional requirement of the record and if the court examines that it's an affidavit with only three points and the doctor only stolz the court that he has a pending evaluation and report that he believes would be court and it was also presented to the trial court in the form of the attorney's motion for funds first second expert but it was never presented to the court in the affidavit or testimony from deny funds for a second expert where the first expert doesn't state anywhere that he's unable to complete his evaluation for any specific reason just stating that it would be much more complete is not sufficient to say that the trial court has abused its discretion the trial court was even presented from argument from respondents counsel before deciding this is on the record by him for page nine and here counsel he argued to the trial court that they were not asking for a second opinion but that dr jekyll simply believed his report could be benefited by the second opinion of a psychologist and it would be more beneficial to his name i'm not going to the discussion of the court's ruling on this issue before the jury but that isn't the question under review the question or view is whether or not the trial court's ruling at this time at the pretrial stage was an abuse of discretion  only facts again presented to it or that doing so would make his report more complete or be more beneficial and simply it simply couldn't be an abuse of discretion for a truck or to deny such a motion when there's no actual  facts it would be a different case if dr jekyll it specifically said i'm lacking in these three areas are these four areas and my report won't go into those areas and i feel that they're important to him as he case then we would be presented with completely different facts  those facts are not presented here and therefore can't be an abuse of traction and moreover even if this court disagreed with that proposition would be harmless in this case where dr jekyll did present a complete report or started off with regarding the actuarial instruments the static ninety nine provision took place according to the new york court their factual findings that took place in february one thousand nine hundred nine and that's consistent with dr clarke and revision was made in the year prior to trial in this case but again this issue is controlled by simon simons didn't limit itself to saying we're ruling that the minnesota test and that the static ninety nine older version or admissible in a court of law what simon's held was that actuarial instruments in general are admissible and indeed the reasoning that they applied in that case would apply equally here what they said is that frye only demands a hearing where the scientific methodology is considered new or novel in that it is original were striking and does not resemble something formerly known or used and that some age five heard she's eleven eighty nine of the northeastern reporter of simons what the court is getting at there is that actuarial instruments have been around for a long time new tragedy was presented to the jury and it can't be an abuse of discretion to fail to adopt what responding concedes is a redundant jury instruction plus the court has any further questions the people would rest on the points presented in their brief and asked the court to affirm the so using the seven standard we still should have had a right hearing on the setting and counsel of made a similar mistake that i did i said set it ninety nine are came out a few pay for true experts but in ray allen also stands for the proposition that s v p defendants still are required to have the same basic rights as everyone else have a right to to preserve the rights one expert was good enough and if the defendant wanted the higher more that's fine but in reality does not stand for the proposition that  defendant is not entitled to present an effective defense and that's our point is that because dr jekyll was unable to have the extra help the trial but it is not a trivial point that the trial court first thought of dr jekyll when he thought of expert in this field and it was readily agreed to by trial counsel  so while dr jekyll may be talking in psychiatric code to the court still the request is plain there is an expert highly regarded by the court