the victim in this case time and clark she was accompanied by her father in this case the defendant was significantly the only adult with her for the last day and a half officer he was that was immediately summoned to that ambulance to look at the glaring obvious signs of physical abuse afflicted that baby she had bite marks covering her chest her arm and to her head both her eyes were blackened and bruised she'd swelling to her face additionally she had whipped marks crisscrossing her i'm back in her thighs were also defensive wounds and other injuries of bruising the defendant told the officer on the scene the baby had fallen in the bath tub earlier the previous afternoon that he did not bite her and that he had to whip her because she had vomited her cereal on his bed is a form of punishment that the baby was taken to the hospital along with the defendant where she later died of massive internal injuries to both her body and her what has never been contested in the trial courts or ever is the defendant is the person who killed that baby the only issue decided on appeal and before this court is the voluntariness of the defendant's videotape statement  specifically addressing that he was struck in the lockup by a guard for hours prior to interrogation before any attempt of a ride on the scene both sides agree this question is governed by the federal due process clause embodied in the fourteenth amendment and it can't be disputed in all voluntary inus questions the ultimate issue is whether the defendants will was over born at the time he confessed another words is that statement a product of free will that test requires an assessment of the totality of the circumstances in each and every case which necessarily includes the allegations made by defendants to make that assessment and answer that question the burden is always on the people and usually it's by a preponderance of the accidents however when a defendant while in custody has sustained physical injuries and he's made an allegation of physical coercion based upon those injuries the burden is heightened to clear and convincing to be perfectly clear that people make no effort here today to diminish that burden to alter it to shift it in any way with people take great disputes with the defendant's position and that of the appellate court is that the remaining to tally of the circumstances and not only irrelevant but they are to be ignored as a question of law by the courts of review and the circuit court make that determination and the only question is how and why those injuries were inflicted position has already been explicitly rejected by this court and people versus wards moreover there is absolutely no basis to do so as defendants do not have a right to have injured might entirely on the answer to put it's a stink what the state's attorney said at the motion to suppress statements this isn't a question of whether the next not the defendant was struck while in police custody by somebody employed by the police department the question to be answer is whether or not that has done away with his voluntariness if you look at the totality the circumstances he answer is a resoundingly no in this case so to look for justification which the people absolutely do not only can child but yes he was an automatic transfer he was an adult court but he was sixty he was sixteen hundred sixty one i q your honor i'm glad you brought that up the defendant's mental state has that i or any diminished capacity the question of him being mentally retarded was never an issue litigated in this case nor was there ever an x expert opinion defining it as such that issue makes its way into the record in the pre sentence investigation one the psychologist who interpreted those results made in equivocal it's a defendant appears to be retarded based upon the test scores but he also said that it  appears it was in a certain finding and that wasn't his full report and that could write a yes q one more time yes or was it sixty one i don't know the answer to that because when you look at the doctor's report he said it may be in on he specifically qualifies may have underestimated the defendant's i q and no question we're not talking about somebody that would not necessarily fall into borderline i'm intelligence range but looking at the other factors this was also not it's ok there was no well before the statement the defendant's mother testified exactly as to the circumstances of that injury that she had laughed at that the police station to verify that her son was in fact i'm sixteen years old and that seventeen years old is the police had been led to believe or had a question and she'd only been crying for twenty minutes at hollywood turning she heard her son yelling and screaming profanities in the hallway directed at someone she ran through an open door and saw her son and at this point he had an injury to his side in that point she asked her son what happened in the defendant replied quote unquote that mother hit me and the mother demanded to see somebody and mother asked who did this he pointed to  that the defendant made a videotape statement which offers this court a window by which to view the interrogation process where instead of paying lip service or looking to what a defendant had to say about any certain injuries you now have an absolute window into the interrogation where you can see that this defendant is certainly articulate suffering from no one panelist does not appear to be in pain disoriented confused and in fact is quite animated describing because i believe that they stated that the defendant couldn't separate the fear associated by being punched in the lock up for many subsequent it interactions with police officers or or detectives so and i get i don't think strike to the face of the defendant was not at the time the statements were given that's correct it was four hours before and when the appellate court made the determination that the defendant might not be able to separate the fear that was not the basis of allegations or the focal point it anytime the defendant absolutely has no burden but our law does require he files a written policy and in fact in this case the people asked repeatedly the defendant to specify he certainly and there would be no reason for him not to include that number one in the o p s complaint or later in his motion so the court basically raised an issue on behalf of defendant that was not part of the litigation or an allegation by the because the subjective state of the rock up keeper is not the focal point is that of the defendant and it is not reasonable to assume that it was part of the process when you look at all that happened the immediate reaction of the defendant in the police a sergeant in a uniform came and he took the report of the defendant and from other promptly addressed it he notified the watch commander there can be no question  i don't know the answer to that and i believe the record would be quite that because the parties were prepared to stipulate to portions of the o p s record and i can only speculate that the reason they didn't is because the focal point of the allegations never turn this person there was immediate outcry that with the proper police response i submit it's not reasonable and there was never any allegation that that was part of the process simply against the detectives that the defendant's own mother crashed allegations defendant it in even trial counsel said consider the freestanding injury within the totality of the circumstances there never was any allegation  in an effort to elicit a statement fact it did not he didn't make a statement none was taking in the law so you could assume several things that he might attempt to justify and that's what he said to o p s which we don't make the allegation that he punched him because he was outraged by his crime or perhaps he meant to try and help detectives who he did not know that were not even in the police station and not assigned that case but as i stated this court's starry decisis says that does have an inquiry you look that is that is the state's argument that's part of the statement but that's part of it and i don't say that that's the only thing this court should look to but you should certainly look to the defendant stating that and his demeanor while he said i would expect bad to be part of the applications which were not made in this case and i also say when the appellate court reached that conclusion it really purposefully ignored everything else at  and he didn't testify to anything different which is why the subjective statement what had happened there was no point to go into it other than to offer a mere denial by the walkup keeper say he hit him just because he wanted to or maybe even if he d his mother were but in fact and undermined the allegations that were before and that the people were attempting to bring back so it is part of the equation and certainly the burden is raised to clearing convincing mr chief justice and may it please the court my name is melissa chang and i represent andre richardson this case is about police brutality and physically coerced confessions your power quote properly recognised that videotaped statement should have been suppressed as a product of the physical abuse he received while in police custody even the state's evidence shows that he was physically injured at the hands of the police before he gave any statements and so because he was injured  defendant's burden to allege particularly who caused this injury and to get the name of the rank of officer who caused these injuries to him as long as they allege that the confession was coerced and as long as there are some there is evidence of physical abuse then it becomes the state's burden to explain those injuries so they don't meet the so the defendant doesn't need to lead who did it or that is particularly bad because of these injuries the confession had been issued two days a week to use your position then that in each of those instances they would have to explain the strike even if everything else that's in the record would point to the voluntar confession they would still have to address the fact that that strike seven days earlier had nothing to do with the confession well you know i did the test and thomas and if the defendant is injured in place custody and he's held in the same place confinement and held under the same constraints then that is involuntary now if you were released if he was given you know counsel or if he was given any indication that this wouldn't happen to him again maybe it would be a  we have a sixteen year old kid who's punched by a police officer at the police station and he hasn't given any indication that this wouldn't occur again when the o p s investors investigators come to talk to him they prevent him from doing so court certainly agreed with you and seems like they felt that there was no way of telling that this defendant who gave the confession four hours later wasn't thinking about the strike that happened four hours earl r what if at all what import if at all does the fact that the testimony related to any reaction by the defendant to that strike with anger and what he said to his mother  that the injury occurred exactly four hours before the first confession because a huge part of the problem is we don't know exactly when the injury occurred we know it occurred roughly between six and seven thirty and that he was first interrogated at nine o'clock but we don't have a very specific timeline i won that injury occurred number two as to his reaction to it this court made it really clear and woods that you're not supposed to focus on the defendant's reactions because the circumstances surrounding the confession itself that is relevant to determination of voluntariness and you do have to tell you the circumstances under normal circumstances but under the woods wilson test if there is an injury before the and that he had a knot in his eye that he was crying and he was very upset we don't have his direct testimony but under the woods well sometimes it's not his burden it's it's not his burden to remember exactly what happened and testify exactly how that affected him and to explain in perfect detail what happened it's the state's burden to come forward with that evidence and the reason is because the state is in a superior position to get that evidence they have better access to proof and so we put that burden on the state charley circumstances but if there is an injury then the state must explain the manner of their occurrence and they must prove by clear and convincing evidence that they were inflicted to induce a confession so this is a necessary step before you get to the the circumstances and i our position is certainly that even if you do consider that to tell you the circumstances there is no question that this is involuntary as well because for me but for the fact is when we said earlier that he was sixteen years old that necessary because it's really not up to the defendant underwood's wilson does the defendant doesn't have to remember you know what happened and they don't have to you know right after he's been deemed to get a name and rank of that officer in one of the other officers who are present it's not his burden and this is exactly why because he shouldn't be have be held to that standard when he's the one being held in police custody under sixty years of this court's president that's the only question that they have to answer if they don't answer that question they can't get much to tell you the circumstances so they don't explain if they don't give a neutral explanation and show that it was completely unrelated to trying to get a confession then they fail to meet their b suppressing the confession this court should also add here to it's sixty years of precedent that once it is determined that a physically course confession was improperly made a trial a new trial is required period there are no exceptions and the reason is because police brutality on any level is unacceptable and at the end of the day both you trial and so both of these issues come down to one question is it ok for the place to injure someone to get a confession and the answer has to be no and so if the state can explain why someone was injured number one they can't use the confession  trial and number two if they do use the confession there has to be a new trial because this court has to be clear that there's no gray area no mounted police brutality is acceptable and so if there is right ryan a rules of exclusion that suppress the voluntary statements and sweep groggily to prevent to require reversal of cases of overwhelming and evidence is not the answer in fact that i thwart the search for truth in that does it cost a disservice to the administration of justice and that is why we have harmless error analysis and there's no question that when you look at this case a coercion a confession  which has been overruled by arizona versus formality which this court has yet to address but has embraced in other realms specifically the fourth amendment and the sixth amendment and other fifth amendment concerns it makes no sense to factor either rather harmless error analysis with in the fourth amendment other areas the fifth amendment with counsel you don't see police officers trampling through people's homes you know and on in response to allowing harmless  it's beyond a reasonable doubt moreover the probative value of a statement is always quite high so it would be the only the rarest and most extreme appropriate cases but how most error analysis would apply additionally any concerns with respect to deterrence has already been answered by that court deterrence belongs in the exclusionary rule that has no place in answering a harmless based upon the heightened burden we already have in illinois for clear and convincing evidence that should adequately address those concerns and we have more transparency and the laws with respect to mandated videotape statements we know that the office of professional standards have acted we have civil remedies one nine hundred eighty three as well as criminal prosecutions that is what we should be deterring improper police misconduct not suppressing voluntary statements to punish the police which as i said words the search for the truth or tak change the rules because of the nature of this case what i'm saying is because of the nature of this case it would be harmless it's a forensic case where the medical evidence speaks volumes as to that defendant's attack and what you'd be  if if we do not know what the cause of the injury was how can we say that it was not clear and convincing they say it was not to affect the ultimate outcome of this case and to coerce a confession  because you've already recognized that you don't need that people versus wards that you don't need to explain every injury in the remaining to tally the circumstances absolutely demonstrate was when we do that through the calculus i don't i don't know which one of you use that term it's a nice one where you do the calculus necessary in court that the people absolutely must answer ok so he had the defendant said that look hooper said punch me if you don't cooperate with those detectives with him we would have to demonstrate that it was not part of some sort of ten team approach with his lawyers there isn't some evidence that courts in that direction you don't have the answer no we need to show that this defendant statement was voluntary and we do that by the remaining circumstances in as they stated assuming a worst case scenario was fo emotive of the officer designed to coerce that doesn't enter inquiry because the ultimate question is whether or not that statement was voluntary and the best way to ensure that the rights of defendants are balance against the truth seeking process is to look to the totality of the circumstances and fairly answer that question so i ask this court to clarify that there is no automatic rule of exclusion in core statements with respect to the heightened burden when it is triggered