morning on the lower court's refusal to consider the testimony of dr king in this case and what effect that refusal had on mr what will it save the refusal to to consider his testimony in the absence of  one of the major hurdles you have to overcome is that down there there really shouldn't be any difference between a jury trial and a bench trial and unless you're advocating that there be a jury instruction that when he witness takes the fifth amendment that the jury be instructed that he negative inference should arise from that certain fifth amendment right  again i've not heard arguing the negative inference must be drawn what i'm arguing his is really we have a a conflict here between two fundamental rights we have the defendant's rights to compel testimony in his own  game correct mr gainers no jeopardy i'm not asking that mr gainer i'm going to be held against him well and i want to be clear about lisa the moment he was that are you saying that he the state would have been precluded from every charg we do this already in the civil context and understand we're not in the civil context now but i would submit to the court that the reason that the inferences are not permitted in criminal cases really to protect the  defendant i think allowing the fact finder to drop whatever inference they see arising from that that if you just brings the two rights closer to parity it's courts came to this exact conclusion herb where in this case where are the defense is that this witness is the one who really committed the crime there is there potentially belly in the witnesses repeal testified and they made that point that there assuming we agree with your characterization of both the merely decision in the west virginia decision you would concede that there's no illinois case law strictly correct i would concede that your hon that one other point that i would like to make is that the questions put to dr king and this is a bit of an unusual situation in that documentary took the stand in the lower court permitted defense counsel to ask a series of questions that making his ruling say that i'm lying in this case or my position that i am not going to drown him because i'm compelled to do so by i this case i don't believe you did your i don't believe he said one way or the other what he what he said was i'm not going to consider dr interception of his fifth amendment rights for any purpose that the only reason or the only consideration he gave to it was to determine the doctor h really the heart of this issue is the defendant's right to put forward favorable evidence and dr gainer was really the only person available that could have corroborated all of mr fallacious tests and many times he was the only other witness to conversations they had and in fact the only other witness that could testify to his home downloading of the question dr game really severely prejudiced this aaa because there was all this evidence favorable to him that he just couldn't get now again i'm not suggesting that that doctor going to be forced to waive his fifth amendment rights what i'm asking is that the court balances to rights and allow a doctor going to be questioned and allow the fact finder to dr francis from that gainer refused he contacted the police and told him that dr kedar hand this these awful depictions on his computer and wanted him investigated that's true and what do you think the point of that dr gainer it has full use of his fifth amendment rights and refused to testify i'm not suggesting the state if they choose to charge dr gainer for these crimes could go back and use this this testimony against but let me ask you this mr scott's office assuming we agree with everything that you have suggested for the purposes of argument on this issue of balancing the two rights the fifth amendment right used in your client's six a right isn't that wholly in exclusively the province of our supreme court to carve out such a dramatic sea change if you will in terms of criminal process come procedure i don't think it is your i don't think the supreme court has spoke to this question and i think your characterization of it as a sea change is not entirely correct i think lies a very narrow exception i think this doesn't arise very often evidence by the fact that that the court hasn't ruled on this issue that to my knowledge no illinois court has ruled on this issue and as far as i can tell there are only two or three states that have all this issue two of them being west virginia and maryland intermediate a white court i believe rejected this interpretation but this really is a very narrow exception that requires very narrow facts that just don't rise to i'm going to think it's entirely within the right of in fact that it was in front of a jury which is a bit of a different situation and whose trust was that it was the defendant's rights in gray and in here or not and here to him he had to waive his right to a jury trial before he could proceed to a bench trial of course judge but we do treat judges and juries differently you know the judge in this case was the fact finder but we have to at least take the judge's word for it that he's not looking at this testimony his sophisticated fact finder who we have to assume can can separate the two and all we do treat juries differently we you know in a typical case we don't allow the jury even to understand it wasn't in this case and i raise it only to sort of bring home this point if this were a jury trial jury would never have known that mr boyo even attempted to call dr king the jury very well may have gone into deliberations thinking you know he put all this on dr gainer he didn't even bother to call him i think that shows the weakness of his case  that that was a concern in the gray case and i know that we don't have a jury in this case but it is a concern like i said i don't think that we need to separate this out from there have a different rule for for a bench trial a witness to come before a jury for the sole purpose of invoking his fifth amendment rights and then gray there is a footnote that suggests that there are several jurisdictions in this country they do not allow the calling the witness in front of victory the sole purpose of invoking their fifth amendment rights and it lists illinois being one of extended to defend it a on this point about we don't know what the inference to be drawn was that we don't know if doctor testimony would have been that is true i'm not suggesting that a failure brought up regarding whether this court kept him issue a ruling contrary to what the state of lawyers already know on the way counsel for the state argued that exception to the rule that was put in place for a very different reason the reason you don't drive inferences from the witness in fuel testify is to protect the defendant suppress it and in some cases the witness is right from prosecution from incriminating himself in this case that reasoning just doesn't apply in this case the prejudice that is actually to the defense so i don't think it would be overruling the supreme