next case in our call this morning is one zero eight nine eight six people who state of illinois versus robert  and his decision to admit the september one thousand state ensnared by the victim were well reasoned well founded in the record far from arbitrary fanciful or objective way and reasonable and therefore did court found explicitly both that dr okas testimony was not valuable in light of its simplicity and in light of its ability to be replaced by cross examination in closing argument and it found that the testimony severely or would have severely infringed on the on the duty of the jury to determine the credibility of the victim and again these decisions these determinations well founded in the record first this decision is subject to an abuse of discretion review is this court held in people versus enos is court also held in that case that through a court has broad discretion when determining the admissibility of expert testimony and that its decision on such a matter will not be overturned unless the decision is arbitrary fanciful or objectively and reasonable  experts testimony would have been extremely high the it's important to note that before the one fifteen dash ten hearing included dr oakley's testimony and this was her offer of proof this was defendant's offer proof as to what she would testify to a trial and dr oakleigh was warned as was defense counsel by the court before the hearing that and i'm quoting here an expert witness has to walk a real tight rope end quote to avoid infringing on the province of the jury to judge witnesses credibility while still attacking the techniques used to question that witness so before the one fifteen to ten hearing the trouble the trial court is already warning both defense counsel and the expert that comments on the propriety of the questioning is one thing but that the expert cannot cross that line and comment directly on the credibility of the victim and the expert witness in this case proved repeatedly that she was either unable or unwilling to stay within those boundaries she commented the defense counsel and defense expert tried to mask her comments on the victim's credibility with a great deal of semantic camouflage but what her opinion boiled down to was you cannot believe what this child the same her testimony is not worthy of belief and this is this is a direct comment on the witness credibility and of course expert comment on when his credibility is prohibited just some examples of oak was direct testimony showing that the trial court's decision here was well founded and this is again after the warnings direct examined dr oakley the court examined dr oakleigh itself and one of the questions the court asked because he was trying to get out whether dr oak was testimony was going to infringe on the province of the jury to determine credibility was and this is a quote from the court i suppose that if you're testifying at trial this young girl gets up and testifies that you believe based on everything that has transpired with her in terms of questioning that she can't even give us a reliable statement in person on the stand dr oakley's answer was not now that's correct that's my belief dr okola also dismissed the value of cross examination of the of the victim by saying  was not being offered discuss the types of things that could affect the credibility of the child witness say she was being offered to  both your honor and and she was commenting both on the questioning techniques that were that were used and the improprieties therein but she was also repeated after having been warned not to also repeatedly commented directly on the on the victim's credibility and saying that the victim could not be believed that the statements that she made on the stand both both the statements  at issue under one fifteen dash ten and statements that she would make at trial as a witness could not be believed and that process emanation could not could not solve the problem is determination that the hearsay statements from him because it's reliable does that or close that issue then it's reliable that there still is an issue of credibility decide in a hearing before the trial whether or not the the statements are reliable enough given the circumstances surrounding them to place before the jury but once the jury  is is the trier of fact the law protects the sanctity of its determination regarding the credibility of witnesses and the court was very cognizant of the sanctity of that  function and its decision was based on an effort to protect the sanctity of the jury's function so you know it makes a determination the court makes a determination before the trial regarding the reliability of the statements but the jury makes its own determination regarding the credibility of the witnesses and how much how much stock to place in the one fifteen to ten state so again these decisions were made side by side to allow dr oakley to testify regarding the reliability of statements under one fifteen to ten and the decision that in a thoughtful well reasoned decision on the court's part that walt acceptable for that purpose is an acceptable and appropriate for the purpose of a commenting on the witnesses credibility and and that's why it's  the average juror would know well the concepts that were actually applied in this case were extremely simple commonsense subjects that were gussied up with a lot of technical discussed the be prejudicial effect of of the doctor statements but that goes to the lack of the dot of probative value that doctors testimony had because the phenomena that she was discussing  were very easily understood commonsense and easily exploitable in plain language by defense counsel in closing argument so so i agree with  informational input let's say is not a basis upon which to distinguish between dr oakley's testimony and closing argument the jury is free to disregard the opinion of the expert as well so you know and here's an important point the reason the jury is protected from expert testimony on topics that it could well decide for itself new parents of her ability to offer opinions beyond the ken of the normal juror and the law does not want the jury to abandon it duty to determine credibility to think for itself on issues that are well within its ability to understand so again the simplicity of the concepts dr oakl the court explicitly held going back for a moment to prejudice the effect that the testimony dr oakley would have provided significantly infringes upon the jury's duty to assess for itself the weight and the credibility of the victim statements  and in offering an expert opinions no expert opinion on the victim's credibility to testify accurately defendant is directly attacking the victim's credibility there is no other possible inference any concerns regarding inappropriate influence on the jury but as we see in this case defense counsel repeatedly assured the court that the defendant the doctor who would not testify regarding credibility and yet she did so repeatedly in terms of certain and uncertain indeed at the end of her testimony  stated now it's too late for us to go back and say which of these things are true or false because she's heard it so many times it does educate you hopefully about all the reasons why you should or should not put weight on her credibility one way or another so unlike  founded as justice and i were just discussing the probative value of his testimony was also love as the concepts at issue were simple easily understood and easily explained on closing argument court recognize the simplicity of these concepts a layperson doesn't need an expert to understand that an interview method can affect the information gathered jurors can access can assess flaws that dr oakley discussed using common sense gleaned from quote every day life and then quoting the wilson court the trial court stated limited limited cognitive abilities of children are well known and any jury can be expected to take that factor into account when determining a child's credibility  the court also explicitly held that cross examination and closing argument would suffice to bring before the jury the points that defense was trying to establish determining the admissibility of a statement under one fifteen dash ten spontaneity is one of them and the record establishes that these statements which were i miss my daddy but he hurt my front bottom and also i'm afraid that he will come and hurt my front bottom when she's being put to bed that night were entirely unprompted by questioning entirely unprompted by the topic of conversation that she that she interrupted so these spawn eighty was clearly weight is a factor that weighed in favor of their admission consistent repetition these statements were as the appellate court helped identical to the statements in the first statement she made about this issue in the bath tub on april twenty first two thousand and three that hurt my front bottom substantively identical to the appellate court and defense argue that the addition of her expression of fear of her father i'm afraid daddy will come and hurt my foot bottom somehow indicates that she was subject to suggested questioning we submit that that is not a reasonable basis upon which to infer that a question to place of course the child is going to be afraid of an adult who has hurt her by sexually abusing her so that is not if there is no evidence when you compare the initial statement on april twenty one to the statements  issued here that suggest the question had any effect because the statements are identical so yet another factor in favor of admission of these statements again way which expected of a child of similar age is another factor  may please the court helpful i'm sarah shop from northwestern university's legal clinic and along with my colleague jeff reading we represent the at pelly robert bakker there is so much wrong with this case for this former family for the truth seeking function of our system of justice and for my client rob becker who has denied his right to a fair trial so the appellate court correctly found that the trial court erred in depriving mr becker of his expert at trial and it is meeting unreliable and prejudicially cumulative hearsay testimony turning first to the exclusion of defects expert dr catherine this court should have firm the appellate court for three minimum constitute a purse say abuse of discretion second as a model matter of policy an application upholding the trial court's approach here would not only contravene the weight of authority but it would create a categor ban on certain types of expert testimony in a wide range of cases and it would exclude an entire array of evidence in cases that boil down basically to two competing stories of what occurred finally the trial court would inevitably comment on a living has credibility and it erred in concluding that cross examination of the state's lay witness and closing argument were adequate equivalent of evidentiary substitutes for doctoral them now before i touch on these and just a little more detail i want to clear up just a couple points from the state's brief an argument first the state's brief and to me it's the abuse was a foregone conclusion in this case in fact the physical evidence and medical proof in this case we're three of the four medical professionals who examined the expert was second it's very important to clear up the state's repeated and continual assistant insistence here that dr openly directly and repeatedly opined that she somehow couldn't help herself from doing so in the one fifteen ten none of the examples that the state quotes as direct comments on her credibility came from her direct testimony during one fifteen ten but rather from questions that the state elicited on cross examination and that the trial court asked itself of her afterwards so the state of the trial court asked these questions required her to answer them she was under oath and then turned around and claimed that she must be excluded from testifying on trial based on this this information they specifically her to get if you look at defense counsel's direct examination its offer of proof during the one fifteen ten you'll notice that it was very narrowly circumscribed to the interviews in concert with the science and offering an opinion that that one fifteen that there has to be a determination of reliability before trial so i believe you want to just say that if indeed the job was found reliable if indeed outside the jury's presence of one fifth and hear what's wrong with his or well what's wrong with his argument is that the concept of reliability in one fifteen ten is a completely different concept from what happens at trial the juries actually do assess the evidence for reliability and credibility don't get that second by drawing this artificial distinction between reliability determinations as the sole province of the judge and credibility determinations as the sole province of the jury ignores the fact that one fifteen ten reliability determinations serve a very limited purpose to establish a threshold admissibility for hearsay statements but that says nothing to the fact that the jurors that a trial also in in their task of weighing all of the evidence and examining all the evidence they have to engage in reliability determinations reliability meaning the accuracy the underlying methodology that underlies evidence those kinds of things and those are the price precise kinds of things that dr oakleigh is going to testify about so the jury looks at that those kinds of things and then also does weigh credibility that is believe ability so the dissent and the state and the trial court erred in drawing this artificial distinction that shoves all reliability for all purposes on one side and credibility on the other side because it wouldn't be proper for the expert to offer an opinion as to the credibility of the witness well i t i think that this court's precedent would support it merchants in toronto would support it as does i think the impending codification of the rules of evidence in the state this court doesn't need to reach that question because there are  evidence you know jurors if this this comment that the state has about this expert sheen and being prejudicial first of all that's that's not what prejudice means in the fourth rebalancing so it's prejudice to a party and the fact that  they have a concern of the trial court had a concern that the jurors would unduly credit an expert belies what jurors do every day jurors often have to choose between two experts in a case and if they were overwhelmed by an expert cian they would not be able to choose between expert testimony testimony furth fully satisfied these requirements the trial court explicitly knowledge did they called her testimony valuable but then the trial court were not to simply not apply this tell us and to therefore deprive the jury of of important tools that they needed to decide this case its second related error was to view this case not through enos and jordan and miller but through the fourth district case and wilson which articulate a different test a wrong test from this court standard and also erred in looking at this through the one fifteen ten hearsay statute which is irrelevant as to whether doctorow clothes admissible at trial which also gets to sort of the dissents point here wilson is a case that standard and the impending codification of these roles that the proposed rule seventy four for example deals specifically with experts able to offer an ultimate opinions in a case and what's interesting is the analog the federal analogue to propose zero four explicitly discusses this notion of invading the province of the jury to decide credibility explicitly considers that an explicitly rejects it as quote empty rhetoric and are our is consistent with that position in any of that wilson is internally inconsistent and so it's also legally wrong for that it says on the one hand that expert testimony that is too generalized isn't probative because and i quote from wilson here it would have nothing to do with the credibility of the children but then in the same breath just a little later down in the paragraph wilson turns around and says that comments on credibility improperly impinge on the proper province of the jury so it's unclear how you use credibility under wilson's own terms it's also a case that creates confusion and is difficult to apply because courts interchangeably and inconsistently decide define the terms credibility and reliability and it's especially problematic when as here it leaves trial courts to apply the one fifteen ten hearsay statute to the question of expert admissibility in this case the trial court linked its decision about dr no less than four times in its orally written rulings to the statute to one fifteen ten says explicitly in its written order the starting point for this analysis is one fifteen ten so like to just have the trial court through this artificial distinction between balancing reliability determinations and balancing credibility determinations and as i mentioned juries actually make their own reliability determinations in oakleigh would have helped with that so it was not only this artificial demarcation this reliance on what one fifteen time was not only legal there but it was arbitrary and unreasonable in an abuse of discretion in any event even if this court were to find that wilson applies in some cases it doesn't apply in this case because it's factually distinguishable wilson by its very terms only applied to very generalized testimony of experts when you talk about general things that were not tailored to the exact children in this case dr oakland corps looked at the specific interviews the iraq dettori episodes and the science underlying them and applied them in this case second turning to the broader implications of this case which is important it's an it was error for the trial court to completely exclude dr oakleigh because this was tantamount to a categorical categor any expert testimony not only in this case in cases like it but in cases where an expert's testimony is used to shed light on witness perception on a witness is behavioral or emotional or mental  physical limitations that impact how that individual perceives or remembers or response to events this was where you know in this case no she was not she was a defense expert  in addition under the trial court's approach no evidence could ever come in within a case where two people claim to totally different stories are competing stories of the same events in such cases every single piece of evidence goes to  undercut and comment on the credibility of one side or the other under the trial court's approach had it been applied consistent consistently in this case none of the medical evidence the exculpatory medical evidence could have come in because nor could have mr becker's own testimony where he vehemently did deny touching his daughter that couldn't have come in either because in the trial court's own words quote boiled down to its core the credibility is being challenged finally alongside these many legal errors the trial court committed a number of fact based errors that also warranted her personal concluding that not one bit of dr o was testimony was outside the church common knowledge the best concrete example from this case is the protocols which you mentioned before even detective adelman a juvenile detective who by his count had conducted hundreds if not close to a thousand child interviews even he acknowledged that he didn't know the governing protocols he knew some of their principles he knew no details about them he was outside of his coming knowledge as a juvenile detective if it's outside of his com harbor a good example from this case is is the impact of repeated questioning for an adult the belief is the truth is the truth is the truth no matter how many times you ask the question it might have surprised those jurors to learn that based on the science children react differently when you repeatedly ask a child the same question those children tend to believe that their first answer was wrong and change subsequent answers and not only what you have described as scientific principle she would have actually applied it in this case just pacific examples such as our eight thirty one where she pointed out that detective adelman first also libya did you tell anybody and she said no and then he responded no did you tell your mommy repeating the question and she said yes third the trial court failed to recognize that oakley had value not only in identifying this miss these missteps and questioning in the suggestive principles but also in quantifying their impact and explaining their damage in a way that no one else could do a trial certainly not at home and so although juries for example might suspect that false allegations might be higher in a contentious divorce only dr open could have told them that the quantify it it was actually it's actually six times higher and and she and this was a divorce case a contentious divorce case similarly all the juries might have a general idea and the state confuses oh it's all common sense and and it's just stuff everybody have to understand but that's not the case i mean they might have a general sense that if you ask a leading question you're going to change an answer but what they might not know about are the concepts of psychological her syllabus mousetraps study that i believe we talked about in our brief where children were interviewed suggestively a number of times and told they got their fingers caught  mouse trap and then thirty four percent of them after that insisted that it happened when it was all just a fiction so oakleigh could have discussed these things and then again she could have linked it to precise examples in this case for example she did link the mouse trap through cross examination of the state's witnesses if erred in assuming that adelman was a precise evidentiary substitute for open scientific in depth an expert testimony which is what the cases require the supreme court decision  chief requires and i quote the same or greater probative value for any substitute evidence but adelman could provide neither the breath nor the death of dr opus testimony not the breath because he admitted he didn't know any of the details  not only about the protocols but about the science underlying any of the suggestive techniques that he even acknowledged nor did he have the depth of knowledge of dr oakleigh because he could not quantify the impact of these questions similarly he also lacked breath because he couldn't comment on any of the other into rocketry episodes to which she was subjected he admitted that he didn't know any of the details about the other interview so only dr oakland was the only person who could have testified at his trial how the other interviews and therapy sessions and so on might have impacted olympias reporting now the state actually admits in its brief it was not an equivalent substitute but then goes on to claim that edelman plus the defense lawyers closing arguments something that the jury was repeatedly warned was not evidence and could be disregarded it will dr oakland's expert testimony but all she requires evidence and this court has made clear in west the closing arguments are not evidence nor can you equate dr oklo which the jury can disregard with disregarding closing arguments dr oakleigh was evidence so if they disregarded their free to rejected by if they did so and reasonably they would be subject to a manifest weight of the evidence challenge that's not no such difference holds true for closing argument finally no it was erred in showing that finally arrogance in concluding that she was going to offer a bear comment on credibility as we said she wasn't going to do that and that nothing short of a total exclusion applicable testimony about children who have sexually transmitted diseases but tonight views the fact that this state explicitly used the jury's testimony to bolster olivia's credibility during its closing rebuttal something that the defense could never respond to and especially in light of the exculpatory medical evidence in this case now turning briefly to the september nineteenth statements the appellate court correctly found that the state had failed to meet its burden by failing to show that the additional police interviews and therapy sessions which occurred but for which the state did not present any evidence did not impact the lives reporting that her reports were not the result of adult prompting and really manipulation these are precisely the kinds of iraq atory episodes that spawn so much false reporting so this gaping admission of these important interviews created the very same kind of silent record that troubled this court and so forth escaping hole combined with the fact that the trial court made no findings and combined with the fact that were several factors that indicated unreliability namely that the child's story had morphed over the five months between the initial reporting the september nineteenth she claimed her mother did it she claimed her friend granted it she denied abuse she said her dad did it the fact that she added the element of fear the fact that there were five months the appellate court correctly termonde that it could not affirm on the silent record in any event the state waived harmlessness and any argument that this evidence was cumulative they declined to address in any way touch on the credibility of a witness with a trial court said before the one fifteen to change hearing is that the expert could testify regarding the questioning techniques but that this expert had to stop short of commenting directly on the credibility of the witness now this is something again that dr okla proved repeatedly unable to do defense counsel stated that  comment directly on the credibility of the witness but only in response to cross examination in the court's own examination first of all it doesn't matter to the jury whose hearing this evidence how it is elicited second of all  the questioning had affected her ability to testify accurately regarding the events which is again semantically different but substantively identical comment that she could not be believed that you could not believe the words that she would speak on the stand or the statements that she made and that were in the civil under one fifteen to ten so this is not a categorical ban this is the court conducting a balancing test the appropriate test the court did not apply one fifteen to ten in conducting this balancing test in an inter meeting that oakley's testimony was not admissible it applied the balancing test prescribed by this court  and mentioned in wilson and it is up to the to the judge's discretion and in this case the court's determination was reasonable far from arbitrary or fanciful because oakleigh again repeatedly commented directly on the credibility of the witness and i should say defense counsel answer the question is it appropriate for an expert to comment directly on the credibility of the witness in the affirmative that is clearly contrary to illinois law and it is also contrary to the notion that the jury should be left to make its own decisions when its own abilities to understand the subject matter i inappropriate for for an expert to comment directly on the credibility of the witness and because the expert in this case repeatedly did so in fact it was it was at the heart of her testimony that that the statements of the live you would make on the stand or before trial were and were not accurate that she could not be accurate which is the same thing as saying that she is not to be believed that her account of the assault is not to be   they're the state has never said that every bit of dr of his testimony was really was replaceable by cross examination closing argument but it was largely substitute is not determinative the court determined that it was largely an evidentiary substitute cross examination closing argument would largely substitute for it and indeed it's fighting was vindicated because many of the flaws that okla would have testified to were elicited on cross examination of detective edelman and exploited by defense counsel in closing argument in plain language that your average juror could easily understand issue here is whether it was reasonable for the court to fear the invasion of the province of the jury to determine credibility to the extent that that danger twenty one the initial disclosure of abuse so there is absolute consistency regarding the statement issued statements issued here the september nineteenth statements and the initial statement that occurred before any of the questioning victims were did not identify the defendant there as her saillant until she had been interviewed by three separate people in this case before a interview the victim identified the defendant in addition the court swartz said that it was particularly important to know the content of the interviews that had intervened between the incident and the statement at issue because the victim was not available at trial in this case the victim was subject to cross examination and most importantly perhaps the content of the examinations in the interviews of the victim in this case were largely were largely  introduced into evidence and the court was able to consider them says warrant is is far from on all fours with this with this case indeed in this court in people versus west where the child implicated the defendant immediately which is what we have in this case and where most of you dull to talk with the victim testified and were subject to cross examination at trial again  ground upon which to exclude something under one hundred ten one hundred one fifteen to ten requires the court to determine its reliability that is the that is the only criteria based on the circumstances and these statements were live defended had attacked any backers credibility and she was the one who testified to the initial outcry and to several subsequent outcries that were admitted under one