prosecutorial misconduct violated the rules of professional conduct and undermine the basic integrity and fundamental fairness of the defendant's trial therefore the defendant request reversal of his  likes to defend about finding the complainants d n a and she writes the defendant by finally d n a purportedly showing that the defendant and the complainant had engaged in sexual relations although the defendant initially energy testimony that she lied on the witness stand she admitted lying at least seven times easter also testified that she was an employee investigator of the i will now discuss the rules of professional dogs and how they apply to this case to be clear i am not arguing that investigator east and by related to holes are all she is not an attorney is not and does not address whether the state's attorney violated the rules how were the rules violated in this case rule four point one eight prohibits the making of a false statement material fact to st rule eight  eight and particularly comments two and six to rule three eight make it clear that prosecutors are subject to rule five three which makes prosecutors responsible for the conduct of the not lawyers that work for their independent interests to preserve the air up to one and sure that criminal trials are conducted within the ethical standards of the legal profession in the alternative i'm relying on the nd form of the do you have any questions i do so your position is this is prosecutorial misconduct as opposed to any other theory correct prosecutorial misconduct under state law based on not rendered inadmissible based on deception by the law enforcement agency or investigator who took the statement it's not statement is not in admissible how can it be prosecutorial misconduct to admit the statement i'm not asking the court to suppress the statement i want to make their point clear because th that remedy so i'm not asking for suppression what the state did was prosecute the state has to comply with to us here they have to comply with federal law and they have to comply with state law so if the statements are not suppress a ball under the th amendment they have does not answer the question whether the state committed prosecutorial misconduct under state law so what i'm arguing here is the prosecutor committed directly address the issue so where do we get the authority to find that out by alicia and the code creates a remedy for the defendant in this case as opposed to a sanction to be imposed by the supreme court through the air d c on mr berlin because on it editions of the code we have rule six hundred and fifteen which allows review of course to reverse for prosecutorial misconduct on the nd prong so i'm not relying on the code exclusively i'm relying on the code in promenades sion with prosecutorial misconduct cases such as blue and johnson and the language mean that all of that case law from the supreme court of the united states in illinois that says a statement that's obtained by the simpson is not rendered inadmissible as a matter of law it would wipe out your argument then at any time the hypothetical question if a police officer was the one to lie then we would it's possible we might have a distinguishable situation because if the police officer is not employee of the state's attorney's office here we have the state's attorney's office itself committing the lies and deceptions in addition as i pointed out the it doesn't i respectfully disagree i don't think it wipes out the u s supreme court in illinois spring case law because those cases address the th amendment and those cases apply to totality of the circumstances approach when th amendment right issues are raised i  the court asked whether the prosecutor committed this conduct that undermines the integrity of the judicial process now that it has been a lot of artists that have held that even when the assistant state's attorney in one case told the defendant falsely that his fingerprints were found all over the victim's apartment that statement was still held at miscible so how did that how does that square with your theory that anytime an assistant state's attorney introduces a confession or a statement obtained cases the state's attorney has the comply with multiple laws they've got to comply with the th and that it's federal law but they also also have to comply with state law in this claims when raising a state law issue it has not been raised in a court case in the past so we're not quite using it as a state law but at the fundamental argument here is that if a statement is introduced that was obtained by the section as a matter of law the state's attorney knowing that state's attorney violates the rules by ratifying the conduct of its employees and also by failing to mitigate the consequences of his employees so that you know i thank you the question for the last time it's fraud or deception we're talking about the same thing the statement was obtained by not telling the defendant the truth direct by lying and deceiving the investigator working for the state's attorney sat on the witness stand i lied i lie and said that seven times she said very explicitly that she lied in the state's attorney closing argument stated easton lied so the state's attorney knew she lied and then the state's attorney said that that's a legitimate  alluded to the fact that the statement the conduct here was violet's of of the rules of professional conduct isn't that a matter to be decided by the air d c is it this is support for the authority authority for my proposition in addition in addition i'm sorry in addition what i'm really arguing is that the the rules not alone but in combination with rule six  blue the violation as i recall was that when state was objecting or state was interceding to address the court on an objection it didn't just say object irrelevant time ject you know leading he or she and i don't remember which actually testified to the office committing fraud to get statements and then the state's attorney handle the trial knowing that it's employee commits fraud and then saying that it's employee lied this ok but then tell me if you can how the assistant state's attorney saying that your fingerprints are all over that if the victim's apartment in believe it's cash money how is it that that did and that was not true did not require suppression of the statement that was admitted in cash me because in cache the majority for dollars was a forty three dollars case the majority found that it was required to apply the united states supreme court version of the th amendment which apply to totality of the circumstances approach but this case does not involve the  th amendment i'm not asking for suppression under the th amendment not seeking relief under the th and then i'm seeking relief under state law specifically the code blue in johnson and rule six hundred and fifteen in combination dissent three i know dissent is not the law but the dissent pointed out that the three dissenters pointed out that the totality of the circumstances should not be able to wash away or you made bad choice but isn't my responsibility or the responsibility of this court to determine that whether or not this confession was voluntary based upon all of the circumstances before it we can't just pop out and say now i can consider the th amendment we have to consider what if any impact this prosecutorial misconduct as you misconduct when there is an administrative agency whose primary job it is to do exactly that rule three point seven and although there is many there are many many issues besides the rule three seven they did consider the violation of the rule three dollars in determining whether  of criminal cases or even civil cases the purpose of the code is to correct or sanction inappropriate conduct by attorneys it is not and it is to punish them state sides know cases that hold that the code does not apply in determining the outcome of criminal cases no cases whatsoever i got together hand side kids is the child rico has been applied in civil cases in criminal cases the error it should be made clear again and highlighted that the blue decision did not find that a violation of a particular will specifically or will three dollars of the rules of professional conduct constituted cl error rather in its discussion of several errors that were cumulatively of have found to my mom is a structural error the court discussed the concept of testifying objections where the ethical wills that lawyers may not also act as witnesses so the state would dispute defendant's reliance on the move very brief reference to the rule as any type of authority for the fact that it is appropriate defendant to bring this type of claim before this honorable court but the state's position that any claims violation of the rules of professional conduct at the appropriate forum for that would be before the air d c or paralegal who was alleged to have taken money from that of state and the legal issue before the court and that case was whether the attorneys could be held responsible for the actions of non attorneys but even within that decision the court then specifically said that the remedy that the party would have in that civil action would be either through a malpractise to a malpractise suit and or a claim of an ethical violation before the air d c so again that defendant has cited not a single case or role that supports hi disseminate defendants arguments defendant while he is not now thank you not conceding the voluntariness of the statement he's also expressed we not asking this court to suppress the statement so even assuming for the sake of argument that th therefore by defendant logic we would be precluded from introducing that statement i read trial and if we did we would end up right back before this court with the same argument that defendant is now raising  volunteering or the state discusses entres in the brief obviously to make the point that the statement that was admitted was voluntary and that and basically the role that the deception used during the voluntary and therefore admissible but how do you answer defendants argument that even if it's voluntary under the system and then the question still remains as to whether it was procureur by honor i would submit that my response is that that argument is not appropriately made as it's being presented by the senate before this court but that would be an argument that would be made before the air d in criminal courts as far as i'm with you as well as potentially that will a complaint filed with the air to see if there was an intentional you know withholding of evidence or manufacturing of evidence but that's not life so you're arguing been magnitude of our of for the sake of argument here the method today of prosecutorial misconduct in other words a brady violation  manufacturing of evidence that is prosecutorial misconduct that might reduce reverse a conviction well i i think i don't think it's the magnitude i think it's the the the type of process of alleged state to utilize a statement that is a missile evidence that admissible at trial again maybe to highlight where there may be another logical flaw in defendant's argument is that by defendant's law or logic a defendant could challenge the voluntariness of his statement let's say through a pretrial motion the suppress statements which defendant did not do in this case the trial court could determine that that statement is that is admissible under the th amendment taking into account the totality of circumstances including let's say for the sake of argument deception during questioning but then and then the state could admit that and then seek reversal or excuse me face reversal because even though the true court determined it was voluntary by def misconduct although that was part of it prosecutorial misconduct was in the procurement of the statements and other words for an attorney and or his or her agent to use deception to procure the statements then secondarily to use the statement and i with response to that hello can you hear me yes i can thank you ok i would say again st and foremost it's our position that if there was such a claim under the rules that the property for it would be before the air d c but then i would also say that basically it's a theory of agency by combining several of the rules of professional conduct the defendant is claiming that because the investigator who did the questioning in this case happened to work for the state's attorney's office versus let's say a local police department that that's the have one question is for trouble mr levin has cited to the blue johnson decisions as supportive of his position in this case i'll do you distinguish blue and johnson on the facts of this case officer blood and brain matter the grafter and says during closing argument you know that were at issue about the family and things of that nature those those obviously are different than the claim here and i would also point out too and not that there is a distinction a defendant has a right to a fair trial before a jury or the bash but this was a bench trial and i think it's very clear that the trial here in specifically discussing defendant's argument because the defendant relied upon investigator easton's questioning style as one of the means of attacking the reliability or let's say or the value to be afforded or weight to his confession as evidence that the trial court made very clear that it took into consideration investigator easton's questions it also can they can support also took into the into consideration defendant's demeanor during those questions because the court had both the transcript and the video to watch so i would say that the that in addition to the fact that they're just completely factually and legally and opposite the fact that this was a bench trial and that the trial court was able to get to know the law presume to know the law and consider the questioning of investigator east and  the purpose of the trial of criminal trial because we'll stick with that at this point is to ascertain the truth about a certain circumstances certain incident a certain injury death whatever the the issue might be and in that regard then lead potenza lead to a conviction the conviction is certainly important but the truth is the primary importance in a trial so how does lying or using false statements and questions by the state or one of its representatives or the state itself really fit in to that important purpose of truth finding well i think obviously rule three as i said i don't think the rules should apply to create a long time about the rule but there is real three point eight which outline special responsibilities of prosecutors which is the rule that makes it clear that it's our duty to seek justice not merely to convict her so while a while i understand that in general  some kind of broad discussion of well how could you know withholding information or presenting misleading information to a potential suspect how could that be consistent with the truth seeking process i understand how that may sound inconsistent however i don't believe that it is i think that as long as any type of deception is used not to the point where a defendant's will was over boomer's but rather is used in further and of attempting to get to the truth and seek justice then it is consistent with the truth seeking process now in addition to obviously whether a confession is obtained via a police department or an employee of the state attorney's office the state's attorney's office always has the discretion if they were to see something that they believed was was not obtained truthfully obviously we have an obligation cannot present evidence that we believe to be false or that was obtained in violation of someone's rights so we would always have the option of not using it or not pursuing that that prosecution but then we also have that story there voluntariness analysis which is where this all comes into play really understanding and recognizing that sometimes to get to the truth and i think that's what the case loss of job as long as the defendants will is not overboard such that his statement is rendered involuntary that those types was brought in handcuffs to the child advocacy center as opposed to appearing you know by invitation or is he you know started to fidget or become frightened or inconsistent in his answers rather than being rather cavalier in some of the dancers especially the one that where he says something to the effect well if she really didn't like this all she'd have to say to me is please don't do this and i would move aside if those situations were not there and this was clearly not a situation where mr enrique cruz wanted to appear at the discipline conduct could there be an effective use of those rules then possibly again i think that i don't see how it could exist outside  some maybe different circumstances greg that what your honor is getting out i mean right here in if we look at this video and we have he's there voluntarily he's quite calm he makes some rather interesting statements he does not seem to be in any way concerned he says he's just did do this and it's later well you know i might have touched her or rubbed her but only when i was drunk and then we get to the point where she came to me and she wanted this from me and then you know and if she didn't i would have mean i i remember this language just it's like burned in my brain if she didn't like it she could have told me so and i would have moved aside he does not appear to be under any sort of concern for his safety for his future for anything that's going on here and now if we use this deceptive questioning at least seven times more of a problem i don't  don't i don't know if i would call it more of a problem i think it obviously is again it would be a factor to consider within the totality of circumstances i think that i don't i guess i don't to questioning can be utilized by a prosecutor or a police officer during questioning but that that is taken into consideration in the totality of circumstances so i don't think that is the test because that governs both the admissibility of the statement and then that also informs the product the propriety of the prosecutor using the state if that i don't know can and can't what you were getting  yes it did thank you didn't do either of my colleagues have any questions based upon those that they heard from me or from one another and all right thank you then mr levin you will disagree strongly that statement says lying is permissible it's not not even miranda stayed there so it's not what is is not ok under the th amendment and state law and in you said the line was quote unquote problematic he didn't like line either and but he applied a bit the better than elsa's and here we have a situation where i'm applying the state law  but the court you look at a multitude of factors or is no reason to analysis no logical reason why the code cannot be instructed to determining whether the court to the state committed d the court of the state mentioned the parade a violation of a situation where the code might be helpful in determining whether there was some misconduct no honesty and integrity in the criminal trial then that result is tainted in the conviction should be reversed and remanded for a new trial that's what i would ask for here thank you so much had justice jorgensen any questions and you so you're suggesting that there is some kind of the conflict between if the amendment voluntariness and and why i would argue lifters i would look at it as a constant i would analyze it in a different way that they're both that the they're both sources that they're both different effect what you're saying is that under no circumstances can in the course of interrogation can an investigator ever misrepresents at least the they are used in the future this may very well be an opinion so are you saying that an investigator for the state's attorney's office is held to a different standard than a police officer was not affiliated with the state's  to employees of the state's attorney's office that this will not apply to police officers it all depends on what kinds of arguments are raised in a future case but they can be limited to states attorney agents the the disregard the constitutional issue not argue it not concede it but not argue it and instead argue this novel unique and new state argument on behalf of your client at this point in the proceedings yes i do think it's good practice i don't concede statements voluntary of the man but the state has made a strong point of arguing that the state was admissible under the th and by not arguing the th amendment issue i emphasized clarify that my claim is not premised on the th amendment because of the state lives because there may be other factors that allow admission a statement like the reading of miranda rights so that's why perhaps why the state is arguing today that line is permissible it's definitely not is just what's  happening is that the state's state has gotten away with lying because there are other factors in the totality of the circumstances approach that suggest that a statement might be admissible and that they could get away with that but it lying is legally and morally wrong it's illegal under the th amendment it's illegal under the state law and i really want to make that point very clear is is there anything that would prevented you from arguing the answer to traditional and a state law in the alternative i chose you have to argue it because in my strategic decision was not to argue it because i felt that admissible under the th and the state law claim should be emphasized here because the th amendment analysis has absolutely no bearing on the state law but analysis they're not connected they protect different interests the th and then  pretext to defend its interest in volunteer enos and the state law claim guards against line deceit and prosecutorial misconduct they to protect different interests they don't conflict with each other there are different  different was that protect different interests and that i think is the way to look at it what one is the state has to comply with both theories of the law and so i chose to emphasize the lin issues the prosecutorial misconduct rather than a totality of the circumstances crotch i'm trying to avoid that approach i'm trying to persuade the court not to apply that because it doesn't apply in the state law context so by your statement that lying and deceit are illegal and have never been addressed by ellen noyo courts or in particular the illinois supreme court you are saying that when they mention that the police told one defendant that the other defendant was talking and you're not going to get a good deal if you don't talk to him in fact is dishonest or a lie that is not morally and legally repugnant and the state's attorney's offices are not allowed to lie and to see all right thank you how do either my colleagues have any questions based upon my questions here and you know i think you i counsel thank you very much for your arguments you know this morning we will indeed take them under advisement we will issue a decision in d course this case is now completed we will recess for another and i'm going to use a little presiding thought that we will confer in conference after our next case because we are a bit late so mr kaplan you can try to get everybody back on and each of my colleagues try to get back on for the next case assumes possible thank you very much