intensively through several stages of litigation and really brings to mind the defendants suffering st from wish a shield and then a sword there were two ways this came up initially through motions for requests for records the motions were different and the records that they sought and the underlying relevance would impact the trial differently the st set was related to post defense diagnosis and treatment that was denied  citing privacy interests and other concerns the nd was for priya fence diagnosis and health conditions most notably bipolar and depression and recent treatment prior to the offense that was denied specifically on grounds as the government communicated the court that the victim would assert privilege the rd way this came up was and i think this is the most illustrated that leads to the problem the trial is through a motion and eliminate that the government filed in which they sought to prohibit any reference to k p the ledge victims mental health records at trial there were again were two ways that this came up there was the bipolar diagnosis which would have occurred pretty offense and then there was an all encompassing you shouldn't be allowed to do this at all and in that motion they accuse the defense counsel of soling the victim and they again say that this is irrelevant and that the to fit him will continue to assert privilege throughout the trial court split the baby a little bit says it will allow very limited questioning on bipolar disorder having allowed that the natural inference is that all of the other question is off limits and the government has said that we're going to exercise privilege and then then we're going to say it's irrelevant and and if you bring this up you're trying to sell a victim when you go to trial get a different story not only not only do they not exercise privilege they directly introduce evidence of this post offense diagnosis of p t s d and anxiety so no longer are we doing the this is this evidence is irrelevant this evidence is privileged we're saying we're directly introducing it to times through direct examination p t s d and anxiety and that itself i think is is the core error that we're asking for reversal on is the admission of that testimony over defense counsel objection this was an appropriate bolstering this is a case where there was no physical evidence this is a case where there were no witnesses so the conviction  anxiety yes because what that does is and it really it is i mean the record there is long so it is there's a lot of things going on but the core  testimony of p t s d leads to the inference that a doctor saw her diagnosed her with that witnessed symptoms consistent with that so when she says i've been treated for p t s d that's not just i think i have it there is a licensed professional out there who not only saw me witness a hearsay objection well there was not a hearsay objection there was a there was an objection inappropriate bolstering in a lot it seems to me that we you object it becomes in that no you can't i mean what do you do with cross examination i mean it seems to me like ordinarily would p t s d is laid out on the table you always have the psychologically and we don't even know what's even humanly possible here because as i look at it no one's ever seen the records the records were never produced to the court i never saw the records we don't know what's in there and you know because it just think about all the cases that men tried in all the land where there's been a little girl was that five raped again by some other relative at eleven and you know at fourteen and you've got this medical history and if that's out there people routinely present that in rape cases as saying you know how can we be sure that she's reliables witness right right that comes in right i mean generally yes in this case we don't know if anybody but you know nobody even exists and you can't possibly know it exists because the only people who have seen the records have refused to produce a my we don't have no evidence that the prosecution has the records we have no evidence that the court's father records we know you didn't see the records and so we're being asked now to make some kind of decision based on a complete big box that's filled with something and no one knows what's in it right and and to further illustrate that problem as soon as this happens defense counsel immediately moves for a reproduction of the records the records had previously been denied because it was a killer of a fishing expedition but now we've got a point where we have testimony that's been admitted that deemed relevant where's the do that what page of the record i remember move from mistrial yeah there's oh yes for the records sure so there's there's there is the there is the initial  motion for a mistrial that is handled and then the witness finish testifies they break for the day and then on the very next day in the front of transcript two and i have a affirmatively state the trial court you know be used its discretion because it does two things it says well st she didn't wave privilege and that was the previous grounds for denying a motion for a mistrial well they and they put into the record and made her p t s d an issue at this trial that is a clear waiver of privilege the nd is that this is no longer a fishing expedition these are records that are that are there have been would be call into question  direct testimony and doing so the court also confuses the issues of the victim's mental health in this trial because it says well you i'm allowing you to examine about bipolar disorder and judgment the district court here says the court concludes that a witness answering a question posed her during trial while under oath about mental health after the incident does not waive a privilege you think that is then relevant evidence of that trial and they've put it in issue who's they that the government put in issue they don't have the privilege sure and well i mean there are two things when you read that when you read that question and you're saying that this seventeen year old by answering a question under oath waived waived her privilege to her medical privacy because these issues were put in the litigation because this was made an issue in the litigation would be similar to like when we had was she supposed to do say i refused to answer that question under oath because it would cause me to waive my privilege she certainly could have done that and earlier in the in the in the proceedings the district court instructed and ordered the united states attorney's office to talk to her about her privilege and indicate whether she would assert or not assert so it's not as if she had you know if they follow the district court's order it's not as this is a new issue that she might have privilege on previous conditions of her mental health because they were ordered to talk to her about it beforehand the other issue i want to talk about that i think the judge ever offered to review the records in camera he did not we asked for that in both of our motions and asked for it i believe in that in that renewed motion that happened orally look if you don't want to give them to us we're human camera never considered because he privilege privilege is there and that this was all of limited relevance and i allowed you to question about bipolar but there's that fundamental disconnect about bipolar versus a post post defense p t s d diagnosis but what would the in the way that it was offered i don't think in it because the only thing that's offered is she suffered from p t s d yeah it's got a flow is a natural consequence of the assault right is you it's evidence of injury we certainly don't have there's certainly no evidence that the jury gets that would give us any other inference that there was any other cause because otherwise you know people with p t s d you people are a insures you know on cross examination you might be able to raise those as questions because they are saying you're not reliable or impeaching your credibility as a witness but when you offer the witness what would be the relevance of offering that other than to bolster i don't see any and i think that's our chief complaint here is that it's offered to bolster and it's offered to bolster after they've affirmatively said she's going to assert privilege and this is all irrelevant and you're trying to sell a the victim and i mean that the p t s d does infer that there was trauma it's tied in the questioning particularly particularly and specifically post offense there are no other things and defense count about the fact that the judge we think of a curative instruction a judge is telling the court or the jury you cannot consider that so there's unclear or there's very clear direction here the judge says it's of limited relevance will limit on audience who he says it's extremely limited but there's no problem with that i mean if you take stream limited relevance don't you have to say what we're cabin ing it to mean as a trial judge my theory always was it comes in and if it should bend there yes strike it and you tell him to disregard it if it has relevance you say it's relevant to this issue this issue only i have never in my life seen a judge he says as extremely limited relevance if any particularly light of the fact that we say that they are alternately the arbiters of all credibility in the w and credibility to give the evidence right because we haven't told them what they're supposed to consider it for why they should consider it i mean what's with that exactly it doesn't cabinet it invades the province the jersey it's arguably be contrary to other instructions that you should ignore our rulings or our statements as lawyers and judges and it doesn't cabinets anything so there's nothing to stop a juror from saying well yeah it's extremely limited it's limited to the extent that i can consider it as bolstering for the victim there's nothing that that instruction does to stop that problem and i'll reserve the rest of my time for a person foremost as to the nd issue the victim did not waive her privilege regarding her communications to her therapist about any sort of diagnosis she reached she answered a question a line of questioning that was deemed to exist because of the litigation in this case and the district court allowed questioning of certain matters and those matters included cross examination or examination of her mental health her diagnoses if any leading up to or after the assault and they were allowed to provide expert testimony about bipolar disorder generally among other things what was the relevance of the p t s d so the relevance was her troubles at home she there was any minute note on the medical record that was post dated the medical exam that took place at the stanford clinic in fargo the only reference about diagnoses at that point was quote unquote bipolar and eggs a mum ok so even at that point there was no mention of p t s d but all of the medications against guests were cross examined  the victim was cross examined about and how they had an effect on her ability to perceive the events to recall these events and that's what really this is about none of the question was you asked since the assault have  spend with something else right that was our touchstone was was this this marker of the assault and may two thousand and fifteen but she had there was testimony by her mother and leading up to that question by the victim of troubles at home and so what's the relevance to that you know what element of the crime does that go to how does it make the crime more likely to have been committed the not committed or the merely bolstering it was not will it was not about bolstering it was about to explain her affect and her demeanor at the jury trial the jury was there to weigh her credibility to weigh the testimony that she was providing as the victim and she it's hard to read on a cold record but she was very  traumatized even at the jury trial the limited purpose was to explain her af ect in her testimony absolutely and theirs and why wasn't that given as a limiting instruction i think it was i don't know i can  ask for that woman instruction there was no question about eliminating instruction with regard to that but it was obvious on from the stand about how her mental health what her effect rather was and so when this  opened up right now you've got out there by a fact afaik has been affected by by that what's happened to me right that's the only explanation right and the troubles and have been going on at home th disconnect with the father the father volunteering certain things to the nurse all of this all of these surrounding hurricane if you will concerning her home life in addition to the rape why isn't at that  point why aren't the records produced for in camera inspection i mean it just strikes me that that you know once you've put this mental health issue firmly in front of the jury there there's a right to cross examination right there you have to right to cross examine the witness in th this privilege you know if this was an adult i think to be an easy question to say you chose to answer this question you've waived whatever privilege you have in your medical records you say that i've been diagnosed after an incident of some disorder you've waived it at least as to that disorder now i get that whether it gets to the jury or not it at least gets to the judge so someone can look at it now minor might be different but i'm i'm having a hard time here because and even after it became an issue nobody's ever bothered to produce a twenty one even knows what's in those records i mean if you ever see don't know and so it fails on several grounds the request for these records one it failed at the outset with the st district judge who  need to focus on after the question was and asked and answered in the trial not the original fishing expedition argument you need to focus on why it wasn't yeah i think op or to order the records after you asked have you been diagnosed with something after the incident i think you brought it up sure i think well i think it's going to be brought up no matter what that was that was in the district court judge's order at docket one hundred and seventy dollars the judge is going to allow all this questioning the district court was like question the questioning about mental health but if the cause if it shows up on cross the no problem i mean if you raise it somebody has a has a post existing condition you waived any harm at that point in different when the government offers it and the defendant has no right to effectively cross examine it isn't it i think they had a ample time and opportunity opportunity is a how do we know that we don't even know what the records show they they crossed her extensively about her medications and those things that affected her mental health that may have an opportunity to affect her her or her but her action whether to recall those sorts of things all of that was was laid out including her demeanor in front of the jury there at his opportunity was ample and well and how do we know when we don't know what was in the box right i mean you could go back in those records the maybe reports of prior sexual assaults there may be a reports of prior suicide attempts there may be reports of prior hallucinations there may be prior mental health hospitalized patients i mean we don't have any idea what's in there right and how can we honestly say that there's no harm in this and he had ample opportunity to cross examine we have no idea what we're talking about well the he offered expert testimony on these on these matters to to rebut into to  it's my body but a human being's life their psychological help us health is put together by a whole series of events that occurred to him right and you just pull out this diagnosis and you throw it on the table don't you see that there might be some question about there maybe some other bases for that diagnosis that that that somebody else is prior to that the witnesses prior life may somehow impact you know because we don't get the cabin like like all of my problems are the result of either i have a bad relationship at home this kind of strain with my parents or i was salt i mean they don't live in a vacuum you know there's a there's a whole there's the people are bullied people are assaulted people are and you know people who are victimized unfortunately often preyed upon by multiple people because of just their personalities i mean you write that mean you've seen these cases because you've prosecuted where some poor little girl has been assaulted over a period of many years b different people because they're just victims right i mean they will they they're they're easily preyed upon right agreed how do we know that this couldn't be one of those cases and it might not matter well she there the opportunity under richie was to cross examine and the records were on cross exam was not effective in whatever way and whatever method he was allowed to cross examine her impeach her which which she did which he did on her on the matters that were subject to impeachment which were perception things recall he was also she also was cross examined on the medications that she took all of those medications related to  predated the sexual assault and post dated any mention of the p t s d post dated in italy the assault but he also posted or was there was no mention of it even after at the post exam mental health was actually that the topic of the issue of those sorts and even not waived deprived of the opportunity to meaningfully cross examined isn't the answer is the strike the evidence instruct the jury to disregard it or if it's prejudicial and not harmless to say new trial try again well i don't think an error occurred i think that the judge instructed appropriately what kind of an instruction was or what that it exactly tell the jury to do victim of and then that it didn't happen or on the other hand that she consented in some way he was playing both cards so then you have this quasi irrelevant are not relevant sort of defense posture they offer an expert that has really no bearing on on this victim on this actual victim with regard to depression his testimony then varies from the motion hearing their offer of proof from depression to then shoehorn in that depression may cause in extreme senses some sort of hallucinations there is no evidence whatsoever about any of that sort of mental incapacity lastly well remember there's no good faith basis because they didn't know what was what the impeach or cause to make up or to misconceive allegations of assault sexual assault or physical assault bipolar depression to the the timing of the diagnosis which in my estimation under this record was as it was after june of two thousand and fifteen so we were talking about her perception and her ability to recall and perceive in may have twenty early may have tw their own expert said that depression and bipolar disorder will not impact or cannot be a victim cannot make up allegations of assault or rape their own expert even though the the court to your question question the relevance of their purported or their offered proffered expert at the st instance and lout allowed the just the defendant to present this testimony i think in just good in good measure to give him a some sort of some sort of semblance of living the baby if you will i think that term was used i don't remember which of you said it but i also think that the that the victim's perception was was available for the jury to assess whether that goes to the to the flat affectation but also her ability to perceive and recall the specifics of the sexual assault under in the jury trial transcript thirty eight through forty six you you will read her ability to recount in great detail which as an aside goes to harmless error if the court gets there i urge that it not but there was ample evidence of the sexual assault in any event the touching she heard her breasts were grabbed he kissed snack hand on her underwear she was digitally penetrated he put his mouth put his fingers on her genitalia he says she smelled beer she perceived the window being open that window was open she could tell that the sun was coming up and that was an early morning hour of the sexual assault the sun was rising she knew that the time of day was it was going from dark to the light she was hearing him breathe she was hearing the squeak of the bed she articulated that she felt pain during the assault her arm was stuck and then that her arm was scarred because of the defendant's actions now that all goes to perception and ability to perceive and recall the events at issue and i think those also go into judge what you're suggesting let's say for argument's sake that the district courts have said something a little bit more while this trial was going it's harmless it goes to the harmless error analysis and that there was ample evidence in addition to victim's testimony others who perceived or others who cooperated the testimony in the facts giving rise to the three allegations in the night i do have one question about one of the other issues that i just wanted what was the before that but that goes to her ability to perceive someone trying to shoehorn as quickly as possible the facts that support her testimony but also get that were subject to cross examination and then not to opportunity cross examine in accordance with with richie i'm sorry judge it yeah and my my question really was about the other prior sexual act evidence that came in it looks to me like the trial judge judge lang said that the that the two reasons that he allowed the two witnesses to testify and excluded the other was because of the similarities which he described as trying to get somebody into a private place and he'd been drinking right trying to get them alone someplace there one else around you and that they were drinking and it seemed to me that that sounds like a description of basically every sexual assault that i've ever seen in my years as a lawyer or a judge and so was there anything more than that because you know as i look at the victims they don't seem to be similar age the witnesses and their jury trial transcripts of all three witnesses and there was ample overlap between all of them alcohol was involved the access and opportunity that they can you discuss the time of night all all involve for of varying degrees in the defendant's brief it makes light of that the victim didn't resist enough and that i find that factually offensive but also legally inaccurate under the  satisfied all fourteen for thirteen d a through d are satisfied and sums all of in all of those sexual assaults our mid and while i'm here and i'm talking about i'll say that the district court balance did the balancing test under forty three appropriately each that the district court struck three of the five noticed witnesses two are allowed to testify because of their substantial or sufficiently similar conduct my hear from you are a bottle very briefly address a harmless they're the only evidence of the assault as the testimony of the victim the there was a lot of discussion and there's been a lot of discussion about the expert testimony of the bipolar diagnosis that's conflating the issue with p t s d i polar occurred before p t s d occurred later the p t s d diagnosis necessarily thank you the case is submitted in the court file an opinion and due course that concludes the argument calendar for the day the court will be in recess until further call the doc