reserved five minutes judge and i'll get right to the crux of the argument will say that this is a sad case would be a best an understatement and because this case is so sad the over the over running theory in or argument is that because of the nature of this case and the said this is the case that the trial court should have been much more observant of due process procedures and rules of evidence and what we have seen here well i mean if somebody commits a completely monstrous crime i mean the nature of the crime is fair prejudice really unfair it is your honor but we're not let me just say i know you have a tough tough situation yes or you're representing here yes but i submit to the court that the to testimony from past alleged victims of this defendant photographs life and death photographs of the child which us mitt romney necessarily get to that more and then the testimony of  was the wife and mother of this of this trial judge her testimony i mean just asserted deal with that right off the bat i mean i think i know the testimony you're talking about about how it's sort of lose control themselves yes or i mean there was  a young woman who i think testified the same to the same fact about you know him doing the same thing to her i think when she was six years old or nine years old or something so  evidence here that the very strongly in play we got for twelve for thirteen year from first twelve to four four fifteen zero get that in a second then for all three the government in their response brief relied heavily on for thirteen specifically as far as allowing the past victims one of them who whose out geishas were going back to nine hundred ninety nine and two well that testimony and without rigorous cross examination of that particular person under four twelve we submit it was an exercise of congress to override and substitute its judgment for what for all three should have been which we submit the analysis should have been under for all three of th evidence is that when congress and acted those those rules of evidence they've basically took away from the judiciary and from the expert in the cloak room as to the balancing test and so on which have been the trial court took away that power admissions or refusals denials of admissions of evidence can give rise to a due process violation and what we're saying here is that when congress in acted those rules and over ruled for all three events it ness and made it a field day you know open open of the hunting ground day to allow any kind of testimony back from any victim no matter how attenuated by time we've got in essence a trial within a trial when we do that is exactly what happened here without the ability to cross examine these supposed victims as to their ability to sexual history judge and to determine through that examination whether these suppose that victims they were victims under four twelve under the definition or mixing up memories we have somebody that at the time was six in one nine hundred ninety nine now in two thousand and twelve when this case was tried there any any evidence any proper anything in the record that shows somebody else rape her when she was six or use and that she had some other sexual history as to that particular it but if the point is i want to make the jury think she's confusing a rape by doing in with a rape by somebody else then what it at that stuff doesn't really go go to that confusion issue but it goes to the credibility of the witnesses in credibility not that she's lying but that can she fully recall from nearly twelve years twelve years prior you know from a six year old's perspective i mean here she is an adult trying to recall ever recall what happened to her back when she was six i barely remember anything knows that you know and you can argue that close and then i would submit to the court that it would be difficult argue that closing you're not allowed to bring it up at trial what question do you think the defense lawyer should have been able to ask but wasn't able to ask what specific question specifically to go into how many other times she may have been rape from any other time she had may have had sexual encounters of when she's six or nine or even ten eleven twelve and two whether her ability or whether those memories from those other instances if there weren't any were getting clouded over in overlaid with what happened when she supposedly was six because arguably the older you get you  the more you're able to remember events i mean i remember events when i was fifteen a lot better than i did was fox in that i believe when you take away that ability to probe that takes away a due process procedure from the from any defended as to cross examination to put the government to its burden to determine whether this testimony should come in and should be believe bought by a jury you know if we go in to was for three analysis rather than four for b we think that given looking at the breed the government's proof of page one of the government noted that the trial court did not want  you know that they did not want to bring that testimony in for a prior bad act but to show a tendency the tendency that's for for be territory and as we argued that there was there was no meaningful jury out hearing that testimony from his mate when these other two victims the photographs are highlighted in their prejudice of prejudicial effect when you look at the weakness of the evidence from their own experts case there was a lot of evidence against the defendant in this case and the challenge for the government in this case is simply to get the jury to understand this sort of crime could happen and there was a lot of evidence that it did to the fact that there is some similar testimony by one of the child victims known as s p or shauna and that testimony is and page id eleven eighty one it is almost identical to the testimony that nat offered with regard to the defendant's tendency to become to lose control and how this could have happened so it was offered as intrinsic evidence and i think it was really opening statement which was you need to be looking throughout this trial for evidence of motive how could this defendant have done this to his infant daughter when there's no other that can be any other evidence before you that he was abusive toward her or otherwise intended to harm her how could he have done this crime wouldn't he at least have stopped short of killing this infant even if he was otherwise predisposed to engage in this behavior with her and so that was the purpose for which it was offered it was not offered to show that he did these other acts with his wife and it was made very clear that it was consensual even if distasteful for her that he had a bad character and so he must have they're for done this or in this terrible crime against its infant daughter that's just not why it was offered so you're of similar not quite as point but very similar testimony from the other child and in light of all of the other evidence against the defendant in th case we went through all of the evidence in our brief i think in great detail but i'm happy to talk about the evidence the court has any concerns about whether any error will be harmless in this case or otherwise has any questions i do want to talk about though before i do want first place and he talked about how there can be due process concerns about that in this case there was a very very thorough for us rebalancing undertaken by the district court district where issued a written opinion that explain why he thought that this word who were adults in the time of their testimony about their having been victimized by the defendant and there went really there really isn't a good record to review that issue and because the defense never raised the issue  repeatedly the defense was asked are you going to seek to try to get into this other sort of subject on cross examination he didn't file a motion as a specifically required by the rule the whole purpose of the rule so there can be this sort of full vetting if the defense wants to get into that off the record and that there can be a clear a clear understanding of what the evidence is and whether there's a need for it that wasn't done here and the defense had a lot of latitude that she was sexually abused by another person at the same time and so to the extent there might have been some crossover memory concerns that was fully explored and direct and on cross and that was all before the jury always acts i mean you're saying maybe it shouldn't have but the government said that in fairness because these events occurred exactly the same time and it was the government's understanding that there might have been some crossover specific crossover memory concerns that because of due process concerns that we would not object and we would in fact elicit that testimony so that that would be before the jury so there was some testimony the defense wanted to get into other made other accusations against other individuals that there might have been other sexual abuse that kercher claims that she had made well outside this time frame so that's all it page id roughly twenty two ninety eight ninety nine and there's a person question i would like to ask you is specifically what was the purpose of moving the photographs and what do they tend to make more like what relevance to the more likely well there's two categories a there's two photos that are pre mortem into that are postmortem and they serve different purposes the two pre mortem photos are offered for the purpose of showing the baby roughly before at or around the time that she die because a significant issue in the case was what stage of development was the baby in you know there's a lot of change that happens from the time a baby is born until they're fifteen weeks and then changes that occur later so for example the whole defense theory was that this baby who had never been seen to roll roll over by her father by her mother by anyone somehow had gotten from the middle of this bed and rolled over several times surmounting the comforters and pillows that had been surrounded her and landed on the floor somehow exactly right on this condom that she in death did and that was the entire theory of the defense so it was entirely proper for the government to put in a photo or two to show the baby and what she looked like and give the jury some context to determine whether her sayable or not reserve foundation that those photographs were close in time to when evaluate the testimony that being given being does that show how difficult or less difficult it is no but it gives the jury some context in which to see this is what happened in his time testifying about it in any event there was not a lot of use of those photos at all during the entire course of the trial and we submit that the court did not abuse its discretion considerable discretion in allowing essentially the same photo  was not harmful error in this case  person and that person was dead that jury should have even been panel so this to while these kind of photographs when he had ample testimony as my colleague pointed out had an empty talk about what happened describe the at six b has a victim with another small child in their legislative foundations like right in there it leads to the outrage more than it does any kind of probative value of what the show if we get back into the four twelve argument the macall colleagues raised and it's harmless error i would submit that it's not harmless error if as the court agrees with us that the forensic evidence alone in this case was rather weak in actually diminish the government's case then all these other things eviden issues that we raise would have an actual non harmless impact and i would like to touch briefly in response to my colleague talk about that if you wish victims and in this case there's there's no real definition rule four twelve as to the definition of a victim and whether it's a victim of that particular case or even them in general well you know i'd come a quarrel with you on that it doesn't say the victim says and an alleged victim so it's not a definite article it's it's basically any im a colleague did make a very good point in their response brief about that using those terms and but if we were to take a look at then this analysis should have come under for world three and as a court knows we've got to you know one rule of evidence doesn't necessarily exclude the other rule the evidence but here w allow us to do things you know look but don't touch touch but don't taste so what we're saying here is that the government can bring in the us maybe say ok as my colleague lou to well we've brought out