which weren't corroborated now officers of the state's attorney testified that mr wetherspoon made it missions of course as you noted those admissions weren't memorialized in any way there was no indication that officers of the state's attorney asked him to more and more lies them and he refused so you know it was a credibility contest between the allegations of the accused and mr wetherspoon and when you can sit and that's and when you consider the evidence that was  excluded i think certainly there would that would have made a big difference because as i explained it there was an alternative source for the physical evidence as well as the jury never heard the circumstances of the highly probative initial court so well recognized that the first outcry pro and again this case is rather unique because of the timing of the i'll cry and the evidence that was excluded was part of that timing and just the circumstances themselves suggest a motive that there was a theory that the defense could not present was that there was a year old that he was in but there's nothing to in the record indicate what happened with those as in regard to day eighteen year old grandson you know we just know from that pretrial motion  that was litigated the prosecutor's statements about you know that the grandmother found her eighteen year old grandson in bed with the accuser and that's that's a second says that triggered the initial outcry there was nothing additional about what happened to the grand on her grandson eighteen years old flown to bed with the fourteen year old and then immediately the focus shifts shifted to the stepfather and the eighteen year old we never heard from again that's what will go with the record it is certainly not clear presenting this evidence at trial there were it wasn't completely unknown who this person was the doctor was not able to say for how long she believed this child it's actually i know she was on it she said that  in no in terms of what was there any indication of force used she said that it's sometimes things can heal over time but she wasn't i don't know her pain wasn't specific about you know it had to hurt over this period of time or  that period of time necessarily as much as you know this long ago or or a specific time she wasn't able to give you one how do you get over the repeal the rape shield statute sure i'd be happy to make it more clear for the court the rape shield statute as you noted there's an exception for when it's constitutionally required including the rights of her present a complete defense and confront the allegations against against him against the defendant and when there's when the evidence that such to be admitted is directly relevant and probative matters at issue not collateral then that's when the rape shield statute yield so that the defendant can constitutional rights to present a complete defense and confront the allegations against him and again here that would be you know to present to rebut the strong presumption that the source of the physical evidence of sexual activity had to have only come from mr wetherspoon and in this circumstance the initial outcry which are considered to be highly probative of the reliability of those allegations that you know to present a theory of that those allegations were not reliable based on the timing that they were made and that there was circumstances to suggest a motive to deflect attention away from the situation she was found in so it's under those theories are dead opinion wasn't fully presented to the jury so i think the circumstances of this case it really doesn't aid the jury in answering that question so it really is the word of the complainant versus the on the word of the alleged statements which words memorialized counsel this there's several cases that hold that where you know if this is an attempt to just interviews another relationship to tarnish the character of the complainant there has to it has to be directly related to you know matters at issue  matters at issue heart here are there's you know the jury heard that there was physical evidence of sexual activity and it's that powerful presumption that triggers the the need to when there is an alternative source for that information for that evidence that penny has a right to present that alternative source and as well as you know when this is complete initially outcry there were circumstances under which where she was intending to  a motive to deflect attention away from herself so i think the evidence here is is directly related to you know relative relevant and probative matter is at issue and that the constitution requires know whether it was immediately at that point you know that's when she pointed the finger at mr weatherstone it may have happened you know you know she discover what's going on and then there was questioning about it means that have been a half an hour it could have been  exactly precisely and so and after the grandmother of the eighteen year old found out about it then the mother of the child found out about it correct  until two weeks later that karen clarke was told about it yeah weeks later weeks later there was you know karen quite testified that weeks later she had a conversation we're from the time of the initial outcry was made it's it's weeks and weeks later telling the jury that they had heard the course of how the outcry had come out in bed the complaint was consistent throughout this ordeal when when in fact they had not heard how the course of the outcry had come out and not heard they they were unable to determine you know if the prosecutors telling the jury that she was consistent although we don't know the precise content of the statements that she made when she initially accused mr wetherspoon to the neighbor to the to her mother and then weeks later even to the to the teacher although you know when the teacher test by she did disclose the content of the statements the prosecutor filled in the blanks essentially by saying you know that completes me consistent this entire time and so i think the exclusion of the evidence is enough to to reverse mr weathers for his conviction but when you consider the fact that the prosecution capitalized on it  think it's very clear that this these errors are not harmless beyond a reasonable doubt i just like to finish by saying bet the truth of the allegations in this case were not tested relevant probative information was kept away from the jury on issues directly related to these allegations the rape shield statute should shield the complainant from the relevant evidence but not used as a sword to defend to deny the defendant's constitutional rights good morning honors again they please the court my name is carol games and i represent the people of the state of illinois this issue came before the trial court and comes before this court under the rape shield statute and in order for circumstances surrounding the victim's outcry to her neighbor and in may of two thousand and six you have to look at whether or not under the rape should see action there was any evidence even shown at the beginning of sexual activity between the victim and this eighteen year old boy initially the defendant moved in linae and this is about the rape shield statute whether this evidence can come in under that particular statute the defendant moved in when they need to admit evidence that when she first accused the defendant of having sex with her since she was nine years old that she was found naked in bed with her neighbor's eighteen year old grandson there was no formal offer of proof or any ability that the they were they were found naked found naked was not the functional equivalent of any act of sexual penetration in fact defense counsel before judge hill at trial conceded conceded that there was no evidence of  record is not complete as to what exactly she saw maybe she said get out of bed and pull back the covers and didn't see what you have no idea this record does not bear out what occurred between the eighteen year old eighteen year old boy and the victim pacific that's missing from the record concern anybody i think it shouldn't terms of it and fact with the tragedy center when he when he initially judge obus when he looked at our whether or not there was some alleged sexual activity between the victim and and the boy that it would have been relevant at all to whether or not she made the allegation at that time against the defendant you had lucy come into if you want to believe it was if you believe what was at least discussed about it lucy how did you and says you know why aren't you bleeding and her response immediately is because the defendant's been having sex with me between for the last five years so that that particular piece of it before you can even get to the right she'll stance you is whether or not there was even any sexual activity are between between the eighteen year old at and the victim in that you're good or  liver i think when you're talking about what evidence can come in before trial or factor under gas that's the whole part of it is there cannot be a reasonable inference there has to be there has to be evidence of it there has to be evidence of sexual activity that's exactly what the rape shield statute household's is inadmissible is the prior sexual activity or reputation of the victim the only exceptions again where there's which isn't which isn't it issue here or where it is constitutionally required to be admitted in order for it to be constitutionally required to be admitted it has to be a relevant and b it has to be relevant to either a motive or a child who is going to the period of time to benefit her creating whatever atmosphere she desires with anybody hitting on it immediately before she implicate him at the time that she's confronted with you know some activity with someone else then it is shown absolutely no nexus between when she says so lucy and murders to implicate initially abused by him the first time when she was nine and he told her not to tell anybody and not to tell anybody about what had happened her mother asked her on several occasions and she didn't tell her and she did say that she heard her mother in the defendant her mother was never around first of the mother was never around she did hear her mother and the defendant fighting occasionally she was afraid for her mother she didn't want to say she didn't want to really ruffle any feathers is why she didn't she want to ruffle any feathers about it but her motive well it may also  that she just didn't like him because he fought with her mother again that was it that was it that was that was a question for the trier of fact to make that determination one you also have to consider the fact that quite honestly that the defendant i mean he's saying that she had a motive to fabricate told it to two detectives in a state's attorney the fact that it wasn't a teary allies or it was a materialize in written or signed does not defeat the fact that he made it in mission and that would totally defeat any more the actor sexual penetration with this victim and that it mission would certainly undermine his claim that she had a motive to fabricate that he had been sexually abusing her it would certainly undermine that his admission that he in fact had sex with or excuse me the the way that the state's attorney memorialized that statement first of all the statement by the defendant was not under oath and on when he was under oath in court tonight it is to correct that's correct ok and secondly wasn't there some confusion about when he was actually under arrest and whether or not there was actually a warrant to arrest him there was some there was ocean or something but it was an honor motion to sequester essence precedence was presented and it why aren't you bleeding why are you a virgin while i'm not a virgin because the defendant has been having sex with me since i was nine years old i don't think that would i think that would have been detrimental to the defendant's case and certainly wouldn't have been well certainly that examination which would be inconsistent with the one that you just for respect for your honor i disagree i don't think there's any way to get that evidence out other than in that manner unless called lucy would call for a hearsay  state's not looking to elicit an outcry and hearsay the hearsay nature of what her outcry was the defense is looking to bring that the end it's going to call for a hearsay response maybe the state doesn't want it but it may be evidence that she was making bad with a teenage boy under the bridge she'll say it how would that then affect or hinder or limit or or prevent him from presenting his theory of doesn't hasn't shown that there's any reason that she would frame him that there was any reason she would testify or she would had a motive to fastly implicate him then according to him they had a close relationship and they even had sex on one occasion  occasion so that i would say your honor that that undermines his claim that she has a motive to foster a implicate him in any way shape or form and she doesn't this theory of defense has not been hindered and has not been limited by she's mean this victim appears to be at the time of trial she was sixteen she had two years to  get more mature and who knows who she talked to she also by when she was fourteen apparently was i would say pretty sophisticated based on the testimony she have about what was what was going on  her life when she was fourteen the defense you don't think the defense had a right to figure out to to ask her the circumstances of her being felony and whether or not she for example knew that if she was in bed having sex with an eighteen year old that that would cause him the eighteen year old some problems again your honor not if it's violative of the rape shield stand but isn't the gag motive to snick go to her motive to create an alternative reality no the case no i don't believe it does in a case where you have such as here i mean you can't bring in this evidence to say you know because she's she's sleeping with if in fact i still submit that it was an established if you find she's sleeping with the boy next door and even the boy next door and even the boy next door evidence of a child engaging in other sex acts or being molested by other people it is not relevant and does not establish just because it occurred that the defendant didn't also sexually abuse her it doesn't mean under the rape shield statute just because she has some other relationship even of a sexual nature that the defendant did not do of we're not suggesting that was he just you know it is possible that the defense in this case had and should have had an opportunity to question her more thoroughly about the circumstances of their outcry to go to the motive for it and again my position is that it would not have been you know there was no motive they could not establish a motive for there is no nexus between her what is she doing whatever the record has was not identified by name he wasn't identified by any kind of police report any kind of anything anything anything just the record doesn't doesn't bear that out runners but under the rape shield statute and just just so i want to make sure that i'm clear under the rape shield statute that the motive to fabricate there has to be some kind of bias or motive on her part to show that when she's asked why did you bleeding and she says right away because the defendant's been having sex with me for the last five years of my life that there's no connection between whatever it is you might think she was caught doing and it may have been raised during his motion for the trial but they were not complained of it at that they were not complained of on at the time they were made and i would argue that they were waived i would also argue that to the extent that she was found in that in that position and again just naked in bad she was asked why aren't you bleeding and that was what she did in fact i'm for the first time say because the defendant has been sexually assaulting me for the last five years of my life for these excludes sexual evidence of sexual conduct but i think that's an inconsistent position to make race something though that i keep going back to when i came to conflict with my two fellow justices i think that had it come  it would have convicted him marcel that's what the states and other words everything she said and everything that occurred would have come in there for well want to make you know it again it's it is the timing beds of the al credit that's so critical in the jury's understanding of the entire case would have been entirely different you know th the way the evidence was presented that there was a final saul and then the next day she goes and it all comes out suggesting that she finally had enough but that would that was not that's not the facts of this case it was the timing and we don't know that was immediately oh mean making up this entire story on the spot so you know i don't i think the journey certainly would have heard a different version i mean i think it's been a pristine entire case in a different light and again my second point about relying on  realized the statement they needed to to a you know exaggerate or you know somehow putting tallit on the fact that he made these admissions well then that looks entirely different when the jury had no idea how weak the state's case was because there was this there was no evidence to rebut the powerful presumption that the physical evidence of sexual activity had to come from the cheers that's well recognized in the cases and that was something that you know the doctor's notes indicated that she had engaged in consensual sex and the other point the other point of the circumstance and initial outcry i mean and again i made as my first point you know what exactly happened it's the timing that matters and then there's the timing you know something is discovered and then the al qaeda al qaeda comes out and given the circumstances that the state the prosecutor below agreed to during the offer proof before trial certainly i think provides a reasonable inference to say that there was an intent motive to deflect attention away from the situation she was found in and those are those relevant appropriate matters were constitutionally required to be admitted in this case and that's why the rape shield statute should have you would it allow defense counsel present what i would say about the doctor's testimony is you know the doctor told the jury that her findings hopefully this answers some of the concerns that you have and if there's a more specific point that you would like more clarity with but the doctor  told the jury that her her physical you know the findings of her physical examination were not consistory inconsistent with the allegations yet told the jury her conclusion was that they were consistent with the complainant statement jury hears all the statements all the allegations of abuse all over again and then the doctor tells the jury that it's my conclusion that her statements are consistent but you know during the sidebar it's it's it's shown beta basis of this x risk conclusion was that what was consistent were certain certain evidence that suggested physical you know other sexual activities not just her statements as well as the doctor noted that the pain that the complaint had and gazing consensual sex so i mean the doctor's testimony you know this is excluded the evidence that was excluded that was kept from the jury gives both the state and the depends after two days to explore other possibilities that morning explored ray i guess maybe i don't fully understand and that was never explored the importance of it or an importance of it was not explored the relationship of that to the child and or to the defendant was not explored correct i mean it's a concern to me yes i mean i understand the court's concern i think you know today i'm emphasizing the doctors knew about consensual sex because i think it goes directly to alternative sources of this evidence but as well as the evidence of the sexually transmitted disease was not i'm certain central sex i don't know how a doctor could have told been under that conclusion unless the child told her that i mean just from the physical exam i don't know how you would know that but from a physical exam you would know whether or not there was a sexually transmitted disease at the time that the child was examined in july seventeenth right now that doesn't tell you anything about what happened between the time the defendant moved out and the child was examined and it probably can't tell you very much about what happened before unless the defendant had also been examined but because this evidence was excluded there is i understand it there was no exam done on that event and that avenue was entirely not developed so doesn't tell us everything but it is possible that it tells you something is it correct to say it's another part of the theory that the defense counsel cannot present and before trial that was something the state for you know went first and said we want to keep this first i think the way that the state explained it before trial and the trial court were is not consistent with the state's position on appeal and the state's position appeals to minimize and muddy up what the prosecutor agreed at that pretrial proceeding but i didn't what exactly happened you know and i think there's certainly enough details to understand what was going on but what exactly happened is what's relevant about that is not to just dirty up the complaint it is meant to show the timing and the timing you know it was that discovery of what was going on is what triggered this outcry  cannot recall whether anybody established why the mom didn't call detectives when she became aware of this in may of two thousand and six there's no i don't think there's any development in the record about that  because then the presumably the exam would have been closer in time to when the outcry have right but those are facts are unknown the mother was told there's evidence of that but there's no evidence about why the