language is that in addition to the state after the bird to prove beyond a reasonable doubt the element of course that when the defendant does put on some evidence of consents that then the state also has the burden to prove a lack of consent  if you look and also bit the second instance of hymns essentially sabotaging his defense was that he actually actively encouraged the states to put on prejudicial hearsay testimony bolstered the testimony of the complaining witness here and the defense counsel's rationale for why he wanted this testimony to come in you know language it's to make clear these drives that no matter what the officers say in this trial prior consistent statement it was him from the mouth of a police officer the jury is going to believe what it hears more than once and i think in afoul of the court's instructions isn't that what the cases teach us that generally speaking when a court strikes testimony that we help the push them over the top and say you know how to go point to testify that this is the police officer coming in and saying the exact same thing and yes the judge is telling me to disregard it but then in closing argument the defense counsel says it again it says he repeats this this defense theory that he had that no matter what the police officer say here it's based on what the complainants at but if he just would have objected to beth testimony  without letting any of that damaging in the miscible hearsay come in then he would have had to explain to the jury about this testimony from the police officer in the first place that just makes no sense as a legal theory how do you get evidence there was was was an overwhelming by any means there was that was an identification issue there was no d n a evidence that was admitted now because they can't they can try the other case there but there is no other cooperation and there was actually some of each  regarding what the whole the perpetrator was tried but it was it was a jeep cherokee versus a leaf or a monster i mean it's not that there are three different vehicles that were listed yet but they were it was white it was it was a whites and both of the victims that's true but getting getting back to the prejudice i mean just and this issue i mean this this and immiscible hearsay issue is just one prong well the the defense counsel did not want the jury specifically to not get the definition of consent and the language that he thought was problematic was the right but there's the second sentence in that instruction that says a lack of her physical resistance or submission by the victim does not constitute a sense he'd argue that that was not beneficial to the defense to have but there's a case that raises a state raised were the exact issue came up in people vers that's what the jury instruction says that's a fair and accurate representation representation of what the jury instructions should be on since that's all that they sense that you have to face that says that even though the attorney for the defendant and defended himself the court not to give the image truck it's been given so i can repeat the question are you headed case that says even though the defendant says he doesn't want the instruction and his attorney says he doesn't want t not to give consent but that case didn't involve the defense attorney saying you know we don't want that that language hurts us and then we have this property that i thought everybody is supposed to cite if it's against you things but then they they also look at other factors they look at the closeness of the evidence they looked at all the jury instructions that the jury got to make sure that the instruction was that whole accurately and fully apprised the jury what the legal issue was and then also look at what opening closing statements and the arguments were so what's notable notable about this case is that the jury got none of the things as i said they didn't get the bracketed language because that shifts the burden to the state's approval and consent they didn't get the fact that this was an affirmative defense and three they didn't get the definition in sense and all these other cases the jury got a couple of those pieces and roberts the only thing they didn't get was the crack of material but they were apprised of the fact that don't want this instruction what should the trial court say to them what he told the rules they're requesting gives it any well the judge should look at the eye and look at this link which is this and this is the fact that the defendant doesn't want the jury to hear this of was that the jury have all the law that's the most important component of it but we also have the second and this ineffectiveness argument regarding this prior consistent statement that makes this a very unique case and the court an all the element of force instruction allowed the jury to find the find it not guilty based on his defense in the context of criminal sexual assault the illinois supreme court has specifically stated that if the people prove the defendant use secondly the language contained within the consent structure was not favorable to the and in this particular case why wouldn't you say that about every case no there are this is that this is the law of illinois that he called the destruction can be chosen by a group now roberts didn't over rule it can't roberts was just another first district case they cite they do are c f but roberts was just another division disagreed with another division of the first  is arguing against the attorney who represented his client below and the state's attorney is defending the behavior of the defense attorney that's part of the problem with this whole issue of which was what was the opening statement it was clear from ways that the defense counsel intended counter this mountain of evidence by boiling the case down to the credibility of just two people the defendant and the victim and trying t counsel shoes at the time of trial and this was an incredibly difficult case he was dealing with the victims a very compelling testimony he was dealing with other times evidence that was in middleburg objection he was dealing with testimony that she was examined but there's testimony from that same it was stipulated that there's no evidence of physical injury ok but the doctor says that that doesn't mean there was a sexual assault but the testimony the stipulate to says no evidence of physical injury so he's got that going for he argues that he argues that this is a conception it's basically he said she said that's what his dissent you know his defense is so this language that he basically or in any way so that really in his mind and the judge's mind was not all too is the session because it would emphasize the  we take this well its approach which i think is the press approach it's not just the per se it's let's look at all the circumstances that the jury with all of your instructions that they got were they fully and fairly apprised of what the law and sent this no they didn't get either of the three short recess while we get set up and configured for the next case