universally nearly one hundred percent of murders robberies kidnappings go reported i asked rhetorically why the two thirds of rapes going reported two reasons still he was on track to becoming a statistic a part of this statistic until she read a newspaper article about her assailant the defendant in this case hecht she read in the newspaper that mr hecht had violently criminally assaulted another woman however the district court applied a blanket evidentiary exclusionary practice to evidence in this case and the jury was not allowed or permitted to understand why mr kelly can forward in subjected herself to what all victims of sexual assault are subjected businesses tiredly fair is i think it's fair to say that the district court did allow this daily to say why she came forward that it was based on an article what he didn't allow the jury to find out was it was because of a of another allegation of harassment which he said would be unfairly had read about mr hecht in a newspaper but she was not allowed to describe her what her motivation was in coming forward which left the jury to speculate what was in the article and also gave defense counsel the opportunity to impugn the motivations of mr elie in this case why was it an abuse of discretion for the district court to say i am going to allow the jury to find out that she didn't come forward for the substantial period of time and the reason for it is that they were she was alerted to something what it's over half the jury was led to speculate but w was it an abuse of discretion for the district court to say well you know when a jury you're going to be confined to that to whether or not he committed a rape in this case whether or not he committed a sexual assault on somebody else would be incredibly unfairly prejudicial because then the jury could could as we know could speculate in the jury room that well he must have done it this time because he had done it before and which is exactly your question in a second but let's just assume for a second that i refuse to answer your question right now and i tell you i'm not going to tell you i'm not going to answer your question just trust me i'm not going to answer your question because it's not relevant and after you decide the disposition of this appeal i will explain to you why didn't answer your question that's exactly what happened to mr shelley in this case because of the use of the  questions went directly to mrs daly in the inquired this daily what did you read in the newspaper that prompted you to come forward in call the sheriff two years after the sexual assault in this daily what did you read in the newspaper that prompted you to come forward and report the sexual assault to the district attorney well let's talk about that for a moment because that sort of goes to your issue of the judge allowing the jurors to ask questions at all  that's correct and in person however you agreed in that two to an instruction i mean you per you proposed your own instruction did and you're an agreed upon instruction to the jurors about those questions that that's incorrect counsel had stipulated to jury instruction in this case however the district court disregarded that stipulation and instead decided to stipulation between counsel for that matter in your view permitted that which was disregarded by the district court correct well well but you are you agreed that the instruction may have been disregarded but you agreed that the jurors could ask the questions correct there was never there any old amount so so the next step to that is you know once you would read they can ask the questions i mean how can you complain about the fact that they did well when the stipulations were entered into between counsel there were thirteen motions in limine name which had not yet been ruled on in this case and it was not foreseeable at that time at least to counsel perhaps it was to the district court that the jury would be probing into the victim or motivations for coming forward in this case but one has let me ask you this did you tell the district judge after he rejected your stipulated your stipulation judge since you've rejected that stipulation we don't think proper for the jurors to ask questions anymore there was not an objection preserved for the judge's use in practice of soliciting juror questions for witnesses however objections ward  to in the limiting motions and with respect to them in a rulings with respect to several of the juror questions that were asked in this case of the witnesses which the district court refused  to the fact that you were going to ask questions and now you're saying but we didn't object to on the in limiting motions duce to the idea that the judge was going to refrain from asking some questions another word effect but with that with respect to specific questions the error would then the relevance that the jury was asking what motivated mrs daly to come forward two years afterward and the judge not allowing her to tell the jury why she did and i would like to answer your initial question which was and which was an important one which was the evidence of what was in the article was not being offered for the truth of the matter asserted it was being offered to show what mr daly state of mind was in coming forward like so many other victims of sexual assault misfit daily can forward after she realized that she was not the only one she saw that other women were being criminally assaulted at least that's what she believed whether or not that was true or not could have been corrected by a jury instruction by the district court but the compound in the facts of this blanket exclusionary contrary position though isn't there from the district courts point of view you are letting her testify about this article and what it said about him committing other assaults the district court felt like that might turn this into a trial on his character where the jury would be deciding the case not on the evidence of what he did with respect to this plaintiff but maybe with what he had done to others in the pass that's correct that was the district court's logic however for purposes of this appeal it's critical that your honor i understand that there's a distinction between unfair prejudice in fair prejudice and in this case evidence of mrs daly's motivations for coming forward was fair prejudiced her state of mind her motivation what prompted her when she wasn't i mean she didn't rule on it because it would be unfair to a did it because he thought it would be unfair to the defendant the prejudice was flowing to the defendant but this was their prejudice that should have come in and that was error could have been cured with an instruction that information was not in the article was not being offered for the truth of the matter asserted so you do agree that this is reviewed under an abuse of discretion review with respect to the jury questions in this list patient of jury questions for witnesses the panel has three mrs daly's de lay it's important to remember that there are two different aspects to the way the first is the reason she delayed for more than a year to come forward after the alleged assault and then there's a separate issue which is why did she ultimately come forward there's no dispute that mrs daly was given unfettered ability to explain why she delayed for a full year and a half before coming forward to the police she told them that she didn't want to embarrass her mother that she didn't want to get the mexican authorities involved that she talked to a counsellor who encouraged her to have to put this event behind her and she was so that she thought it was so important with the event under the chin intentionally destroyed the only physical evidence in this case so she was able to explain why she waited a year and a half to come forward then we get to the question of why didn't she open come forward which is what this newspaper article is about  bacharach you're right she was able to say well i read about him in the newspaper but in reality she was able to say much more than that through clever questioning as judge jackson noted she was able to essentially give the jury a clear sense of what the newspaper said without going into details she even said that the sheriff and the da if you need me to testify i'm willing to come help which senate put pretty clear message that jury what that article was about but more important than that she was asked by her counsel why are we here in other words why did you file a lawsuit why are we in litigation and she was able to answer that question now as i read her brief she says what i wanted to be able to say is i'm here because i want to protect other women from harm and she could have said that she had the opportunity to give that answer but she didn't when asked why we're here why she filed a lawsuit she said because i'm angry i'm gra and she said quote i did it for me and quote that's it a five sixty four so she was six able to explain bowl sides of this equation why she delayed in coming forward and why she she told the complete story like now shift gears if i may to the first two arguments in the defendant's brief which relates to drug use i think it's important to acknowledge that these two issues while somewhat related are separate and distinct and have to be addressed separately the first issue relates to mr hex prescription drug use on the day of the incident and they argue that it was an abuse of discretion under rule for three to exclude that evidence because the prescription medicine mr x was taking could have impaired his ability to perceive of vents and to remember things so was there any evidence in the record that showed that his drug use could affect his memory of the events in question none your honor which is why judge jackson ruled the way he did it's icy and so tell so tell me about procedurally how that went down below because i think i do recall the judge may have even invited them to put forth some evidence that that could cause memory loss or impair their their his ability to remember things and then what just nothing happened after that that's exactly right your honor judge jackson when this issue was presented to him acknowledge that this court's precedents show that drug use at the time of an incident can be relevant but here there was no evidence that mr hecht was impaired or intoxicated mr mr daly who had a chance to observe him so he didn't appear to be intoxicated so we're in a very unique position the relevance here was very very minimal the risk of prejudice of talking about a defendant not a third party witnesses was the case if you've got an expert who can come in and say that five milligrams of percocet could affect someone's memory or ability to perceive events bring them forward not let the evidence in planet didn't accept that invitation they never designated an expert didn't do that they never made a proffer of the water an expert which last but not least carson we kindly designated an expert to testify about the impact of prescription medication on mr daley  we did that before the expert deadline and our expert said that the prescription medication she was taking could have impacted her memory and so not only to judge jackson give them an invitation in his order and lemony to come forth with an expert candidly and argue they should have designated such an expert long prior to that date so that's the first issue on prescription drug use the second issue is an entirely different issue it relates to mr betts historic drug use it's not related to the day in question it's that he's taken drugs allegedly throughout the course of his life this is purely a rule six zero eight issue missed a lee claims that they should have been allowed to impeach mr hecht their terminology basically what they're saying is he gave one answer in a deposition in this case not a trial one answer in a deposition in this case that was inconsistent with an answer he gave in another case and that somehow shouldn't come  incorrect for several reasons the first of which is under rule six so weight evidence of of the specific conduct in the past is only admissible if it relates to truthfulness and this court has made clear that answers and under sunder wrote that that is relevant what they could have asked under six away but didn't is the strict in it true that you lied in your deposition isn't it true that you gave inconsistent answers in your no position that wouldn't it perfectly permissible under that though is if your client had said no i didn't then it ends it right there right hon six oh wait that's correct and our client may well have said you know what the questions that you asked were made i think there may have been some inconsistency that would have ended it as well the fact of the matter is we don't know because i didn't ask the question ok go ahead i'm sorry your honor now you're fine i don't have any further remarks today unless the court has questions i will see the remainder  gun was there a stipulation by the parties to permit the jurors to ask questions there was your honor we submitted a stipulated jury instruction to the court judge jackson said i agree with that in concept but i'm going to use my own language to do so he then prepared his own instruction that he tendered to the parties that we reviewed and there was no objection from a state where he then gave that instruction in trial and there was no  the jury then asked questions and i think helpful over there were thirteen questions or ultimately submitted to the jury and she objected to none of them they raised this argument for the first time on appeal which we think is improper when the jurors asked the question about what was in the newspaper article what was the colloquy between the parties in the court over that issue do you recall the court as i recall your honor was concerned of the issue you discussed earlier which is if we get into the substance of the newspaper article this this misdemeanor charge for domestic violence where he pulled woman's purse strap that we're going into for a for b land we're going into issues for zero three precludes it was going to be incredibly prejudicial that had all been dealt with on a on a limb a neat motions and and of the it's interesting to me that this david doesn't seem to be objecting to asking this court to rule on the substance of that ruling on this appeal they're trying to do an end run around it do you have any comments on the issue about the judge making  disputed issue as to what occurred in the trial court and under rule ten misstating was required to raise that's with the trial court not asking this court to be a fact finder and so she failed to do that we'd also note that this is the substance of this argument even in the affidavit or in the record has been waived according to the affidavit itself the paralegal brought this alleged statement to the attention of the was made but they didn't raise an emotion for a new trial nor did they ask the trial court to correct the record which is really the problem from our perspective this statement had been made to something that could have been resolved through a curative struction i believe they didn't give the judge the opportunity to do that because they failed to object they haven't asked the court to remand this matter to the trial court to resolve this dispute so i don't think that's before the court but i would also note that it would be grossly unfair i believe to judge jackson to do that at this point we're now sixteen months out fifteen months perhaps when this issues raised for the first time and as judge jackson who has a very very busy docket and tries a lot of cases to search as memory to try to sort out this issue now fifteen months after the fact is unfairness exactly why we require contemporaneous objections on issues like that thanks thank you  i want to follow up on the questioning by the jury is it what is your issue on that point are you contending that it was error for the court to permit your questioning or are you contending fair to submit and permit the questions that were asked we have are we challenging the process or the question themselves both your honor and nay take it one of the time so in the first instance we agree with the second circuit in the arms all cases in which the court applied a standard of reversible error but we also believe that this court has the ability to reverse based on planar should the court wish to adopt a per se rule which is in its discretion to do it could adopt the same rulings of the minnesota supreme court which does not play which does not apply a harmless analysis test in determining but to be clear i thought that you and and your opposing counsel agree before trial to this procedure that the court could do this because we see questions from the jury and respond to them and have them is that true there was a stipulated jury instruction that was disregarded in exchange for the district court using its own instructions but generally what you're saying is correct ok it was an agreement and it's our position that it was not foreseeable the prejudice that would be fall well ms kelly on the women a rulings and i would also like to add in response to my adversaries position that the fact that the defendant was a drug fueled a wife beating abuser of women who had consistently perjured himself under oath permeated every aspect of his life and was entered twined with the evidence of this sexual assault and the jury was told by the judge that they could ask questions and they did ask questions of witnesses probing into the this use yet the judge did not answer those questions and the laws of human nature have not been repealed the jury wanted to know what motivated mr daly to come forward and with that i'll rest thank you thank you counsel thank you both for your arguments this morning the case is submit