good morning your honors my name is chris nelson i represent plant talent in this case mr thomas lovelace the big issue in this case was whether my client was beaten or not by correctional officers the district court without good reason excluded two pieces of evidence that went to that core issue and whether my client's story was credible first the court redacted a note showing mr lovelace complained to a treating psychologist about the beating it was not hearsay and even if it was done within an exception when when that statement was offered did loveless rely on rule of evidence kato to be one b that's the one that allows that says that prior consistent statements are not hearsay no your honor love is about right that's that has to be the best argument for admitting that bit of evidence it's defined in the rule as not hearsay correct but if this isn't your fault you've got to do this much later but usual way we say the district judge needs to be alerted to the rule under which something is admissible and i would agree with that they're made for the purpose of medical diagnosis or treatment or we did not raise i found in the foundation for that exception is more elaborate prior inconsistent statement or prior consistent statements are routinely admitted agreed that's the path of least resistance to campus and had that been raised with the trial court that we would be able to argue that position today we have before the court today the issue of the city itself and not being hearsay because as i said it was not presented to prove the truth of the you're you have to show in order to introduce the prior consistent statement you have to show that the witnesses credibility has been attacked but most certainly the defendants attack global issues credibility absolutely  specifically against that issue though of the seven not being hearsay it was not introduced to prove the truth of the matter asserted the statement was only when the ceo's kicked my ass in the same as not being offered to prove that assertion therefore the same was not hearsay it did also fall under the exception afforded by rule eight zero three four which allows a statement into evidence that's provided for the purpose of medical diagnosis or treatment in this case the court the defendant's and doctor both acknowledge that the statement was reasonably pertinent to mr love lace's treatment the defendant's argued however that statement was not made for the purpose of diagnosis at that argument belies common sense and the doctor's notes themselves the position of the offended state is that treatment for frustration about a grievance related to the beating somehow does not fall under eight zero three four while a statement about treatment for the beating itself would fall into that state now the reason why that belies common sense is because when you're treating something like frustration the cause of that frustration obviously matters the cause was something like a correctional officer belittling an inmate then the treatment might differ from anxiety created by something like a beating and so that's even reflected in dr who he makes notes when you look at the notes themselves the reason why she specifically quoted mr lovelace a statement was because it was pertinent to her treatment which in the know is suggestive counseling that was the treatment that she thought was appropriate based on what mr lovelace told her in the mr lewis is frustration about the grievance process related to his now that reaction was not harmless error in this case in this case every piece of evidence and every witness mattered as the court recognized and it's very difficult for inmates to taint third party evidence when they are incarcerated and defendants were able to use that in this case to their advantage they argued that the lack of a reference in the notes prepared by the nurses about the beating meant that the beating something such as that an inmate was freed and their notes because mr lovelace was prevented from showing that specific note in this case he was unable to fully show why it was suspicious that the beating was not reference in other notes and mr lovelace had a complaint that he filed shortly after the beating he had a grievance shortly after the beating and there are other notes including the note prepared by dr larson that big muddy river correctional facility the preferred of the day with all these pieces of evidence mr lovelace trying to show that it was suspicious that the treating did not come up in the nurse's nose having that statement from dr levine taken and the statement from a treating medical professional at the dixon prison facility would have helped make that argument more forceful  another major ounce like an argument that the doctor's notes show that the beating did occur and while it where it's being offered for the truth it showed that mr lovelace sought treatment for the beating and sought treatment because of his frustration with the beating itself and what that would have affected for mr lovelace would have been the ability to better corroborate his story by showing that there was third party documentation that he was complaining about to be to other people is not necessarily showing you know that the core statement that was in that note that was  when the correctional officers beat my ass was true but rather that there was a a trail of evidence showing that mr lovelace was seeking treatment and complaining about the beating to other professionals and other individuals within the prison facility which would have corroborated his story anything to the jury it could have meant that the correctional officer was mean to him one day when he was being moved from one cell to another the jury had no way to place the context of the treatment for mr edwards for what dr penis was doing in the trial thought process the defendants argued at trial that mr lovelace had mental health issues and that the beating could have been a figment of his imagination if we had been able to have testimony from the doctor that that credibility of mr sullivan the court erred in excluding that testimony because the testimony was extraordinarily important to establishing the credibility of the only nonparty eyewitness to the beating now the basis for the court's decision to exclude that statement is not entirely clear it was a decision made the morning of when mr sullivan's deposition testimony was read but it appears that the court bases decision on the prejudicial impact of the state of the statement was minimally prejudicial to the defendants because the statement was about the illinois department of corrections in general not about any of the individual defendants or even correctional officers specifically and the statement that mr sullivan put forward was that he was nervous about possible retaliation in his transfer back to dixon which is something that the defendants may not have been involved with whatsoever such prejudice did not substantially outweigh the probative value statement credibility was paramount in this case because the statement was not introduce the court centrally allied allowed a one sided attack on mr sullivan is credibility well just his statement was introduced just that cover things up well it was the same about idea of c sticking together didn't specifically refer to the correctional officers but it the need in general in just as his statement about the general motives of correctional officers when confronted with what the court indicated before mr sullivan steps that she was read however that only provided a superficial analysis of its credibility the reason why this statement was significantly important was that for one mr sullivan was not present before the jury that day and therefore the jury could not assess credibility to pull since he was unavailable and so the deposition was read from the bench from the witness stand and as a result any testimony that was in the deposition that went to credibility was crucially important because the jury didn't have much shows that mr sullivan had skin in the game to the testimony and that he wouldn't be testifying if he didn't truly believe in what he was saying he was risking his own well being the statement was not cumulative because it was the only portion of the position was incredibly crucial statement to mr lovelace this case because it went to the credibility of a witness who if the jury believed would have found for mr lovel defendants happily over the course of the four day trial the district court made several evidentiary rulings only two of which are relevant to the subpoena first the district court excluded as hearsay a notation contained and exhibit thirty eight which was not covered by any exception and three for as a statement made for purposes of diagnosis and treatment second the court excluded a deposition statement from an unavailable witness that was prejudicial to defendants speculative and  full version of exhibit thirty eight is found on page fourteen of the apple is appendix the full statement was that the end may discuss discussed his frustration with what he perceives as the lack of attention to the grievance he filed when the ceo's kicked my ass he stated that the warden in springfield keeps sending him back the statement about the correctional officers kicking my ass is hearsay the statement itself was offered for truth as the matter of the  that an assault occurred when correctional officers beat the and me it was not offered to prove a symptom like frustration over the fight it presumes that the beating indeed in did indeed did happen it is also not qualify under the hearsay exception in rule eight zero three four as a statement made for diagnosis and treatments because it is not reasonably person to medical diagnosis or treatment whether something is reasonably pertinent to diagnosis and treatment is taken from the physician's viewpoints and that's from this court's case in cook vs hoppen the statement the correctional officers kicked my ass was not relevant to psychologist dr but  checks and treatment of mr lovelace as was explained i'm pages five and six of the transcripts she had stated that it was not related to his medical condition because he was quote not talking about any symptom of the mental health problems related to being assaulted he's talking about his frustration with not having a response to his grievance about the situation and that he wasn't talking about any symptom that arose because of the situation he but because of frustration with the grievance process and bureaucratic red tape he was not describing the subject matter of degree events with his own symptoms or elements stemming from the beating and so it does not meet this exception in addition the district court did not abuse its just question when it excluded additional speculative prejudicial and cumulative statements from sullivan's deposition from being brought in at trial during his deposition the attorneys asked so of and whether there was any reason he would not be able to tell the truth today he responded no i just hope i don't get into trouble for my doc you know this is my bed time and i doc i've been here quite a bit since i was an adult and i know they kind of like to cover things stick together and cover things up and i don't want to i'm supposed to get transferred back to texas and i don't want to affect me going back there this material was properly excluded because it was speculative it speculates about potential retaliatory action by the departments and it's baseless with absolutely no support in the record it's also prejudicial because it could lead jurors to believe that because some other staff at some other point stuck together to cover something up in some other case then these defendants here would have done the same thing instead of looking at what the defendants actually testify to the truth of this statement no there was no reason that you want to be able to testify truthfully today was right and at the deposition in addition jurors were told on pages three sixty six and sixty seven of the transcript that this witness was placed under oath to tell the truth before that deposition was rather not trial and they were reminded during jury instructions that he was placed under oath to tell the truth and that's at pages five forty two and forty three of the transcripts ultimately because there was no briefly your honour's statement was not hearsay because was not offered to prove the truth of the matter asserted it was offered in the context of showing that mr lovelace was seeking medical treatment as a result of this frustration about the prisons handling of his beating  purpose in addition defendants again draw this distinction between whether the frustration resulted from the grievance process or the beating itself which as we are going to revisit distinction without a difference  what matters in terms of treating frustration is the cause that's why the doctor wrote the specific calls down because the treatment could differ depending on what the cause of the frustration is on mr sullivan sussan only we've argued why the testimony is not cumulative it's asked once and supposition and a response once as to why there are reasons why he might have issues providing truthful testimony the statement was not substantially prejudicial over its probative value given the importance of mr seldon's credibility to lovelace case and it was not speculative because the statement that was based on mr sullivan is particular experiences within dixon and that addressed the concern that he had about his potential transfer back to the prison thank you very much counsel and we mr nelson we appreciate your willingness to accept the appointment in this case and the assistance both you and your ball firm have provided to your client in the court thank you very much the case has taken o