first case are called a gender number one number one five three one four and one zero five three one six consolidated people of the state of illinois versus they're all public or determination that mr gen x out of court statements made in the ambulance or testimony under crawford and davis i will first address the remain and issue your honor so there is no question the mistakes were made below during the course of people have the equal and corresponding right to admit competent evidence and that much avoid such a hearing defendant raises several procedural bars to the people's claim the fighting first argues that this is not a proper intellectually appeal and that the people have forfeited their claim serranos the public court properly rejected both defendants jurisdictional argument and and forfeiture forfeiture our claims and consider the merits of the people's argument doctrine also the doctrines of collateral and so therefore the issues here shouldn't should be considered by the score collateral stoppel and rested caught up as shields to protect the defining from abusive practices or repetitive litigation here we've not had a f and i'm not sure i understand your question but their admission well i'm trying to figure out how i mean that's one at least one very important part of your argument of the rule with respect to independent recall yes right how does this court there was no hearing below we were denied the hearing so they won and made it however they were referred to in the public court and they are evidence that they did their evidence to indicate that mr janick did have a post surgery which triggers which took place seven years after you participated participated him in hypnosis is if it is a product of his pre socratic recall or a product of hypnosis also there is no expert purpose circumstances a course of rheims over a period of time the key is now rather than a crime is completed facebook a is whether the police are facing an ongoing emergency one phrase used by the united consider in determining whether an ongoing merge and see  it should be considered by looking at the totality of the circumstances including the nature of the fans and circumstances and davis are dramatically different in those in this case in davis it was a domestic violence case with only one intended victim the girlfriend the fans allegedly took place in the confines of a home there is nothing in davis to suggest that anyone but the girlfriend was in any danger so when the boyfriend left to r facing an isolated incident or if this was the beginning of some horrific crime spree immediately after speaking to janet the police radio laying a description how to be understood description was general a reasonable officer would w to make sure that bad information is received is accurate the police would not want to and perhaps the wrong person so therefore the officer rightly question mr janick in the ambulance information that mr genic gave concerning the location of address i'm going to emergency and the more information that they had the better suited they would be to address that emergency how would you how would you limit it or if over here if at all by the fact that i mean every kind of that unsolved violent crime you have those similar issues ok actually you know getting more information so is that circumstances are extraordinary the unusual they don't happen every day but we have a combination of such a extreme violence and so you can look at hindsight you have to look at the objective circumstances that were facing the police at that in order to silence opinion is amply supported by the record moreover define a request this court finding issue has been procedurally defaulted first of all the evidence that at trial and at the pretrial hearings establish that no hearing is necessary and the state's repeated given a suggestion of a hypnotherapist by a friend of his because he wanted to recall and i'm his the night of the offense therefore it's clear that posts february twenty eighth janick still do not have a memory of that night now this is for the crowd rated by his testimony that he regained his recollection of the offender while he was in therapy several months later this testimony is corroborated by the doctors notes which are included in the record from the pretrial hearing report isn't even part of the record so we don't know what that information is actually says what it's based on it was used to refresh at a texas recollection and the sketches the states are doing with regard to the sketches you know more speculative the detective when he first saw the sketch to not even know when it was created he just guessed that it was it that it was created prior to hypnosis because it was the tash this report but just based janick had actually testified that he remembered making that sketch he testified that the sketch solely rooted in korea not recall especially with the with the witness themself testifies that the recollection of the offender occurred during hypnosis and the president the state relies on wilson which is completely distinguishable because fought against the presentation of expert witnesses at all the hearings involved and specifically stated that expert testimony so expert testimony could not clarify this issue and actually that position does those correspond with this which stated that an expert could never testified any suggestion took place because it's oftentimes subconscious i'd like to move on to my argument regarding the prior statements the trial court properly included the barred on those grounds first should this court find that they are spontaneously made they should also be bar because these are testimonial statements that the defendant will not have the opportunity to cross examine the witness on this court emergency and for the definition of i'm going to merge and see i think the davis course discussion of the nine one one calls instructive there the court held that the statements made on the scene were testimonial or i'm sorry not testimonial because the  was making statements while the offender was threatening here the statements constituted cries for help the statements were made as the as the emergency was happening and they were in response to the question what is happening rather than what happened  they were not describing a past crime but they were describing ongoing about its therefore they were present tense statements and the court held that those statements were nonsense demonio but that once the offender left the scene and the declarant was no longer facing a threat the statements became testimony on the state and the court said that the conversation evolved into one giving testimony of statements and from this analysis you can tell that the court drew the line of demarcation between analysis of that of the nine one one call where the court said if the four factors it relied upon for declaring this to be an on going see it so the described events as they were happening here janet was describing events that happened in the past any time the offenders on the loose the statements would be testimonial i'm sorry non testimonial regardless of whether they are an analog of courtroom testimony and therefore that the when the statements given to a police officer the line under crawford constitution may not require successful cross examination but it requires that the time defendant have the opportunity for effective cross examination and i think this court's holding and sizes instructive where this court held that previously hypnotized witnesses by its very definition hypnosis includes alterations to memory increase the billeted just suggestion production of responses and ideas unfamiliar to him and his unusual in his usual state on line and this is this goes beyond the restored memory and therefore the reasons that the memory loss cases do not control is because in all once the court held that the defendant would have unfettered cross examination of the weight of the forgetful witness and the witness's testimony would  meaningless in this case the defendant doesn't know if he's telling the truth or not with regard to the demeanor of the witness this was one of the court's primary reasons for holding not actually influence testimony to be per illinois the witness thinks it the witness says restore confidence in his memory and he can't differentiate between information suggested and information arising or hypnosis sessions therefore the trier of fact cannot adequately judge his demeanor he's subject to cross examination for purposes of the confrontation clause is not the case owns itself noted that the possibility that limitations on the scope of examination me undermine the process to such agree that meaningful cross examination this issue initially there's a causation issue here because the defendant was not arguing that the witnesses unavailable due to his amnesia which was the result of the gunshot wound the defendant is arguing that the witnesses the unavailable because he underwent hypnosis secondly the state cannot demonstrate forfeiture as contemplated by the u s supreme court trials and as and as set forth by this court and  minutes the statement despite the fact that the defendants to lodge a kind i could reasonably have expected to cause trauma to the child witness and making that witness unavailable and on top of that the defendant in that case made the witness swear not to tell anyone but this court found no evidence that that act well there could be there could be statements as for instance in the home by the by the defendant for instance stating that tended to well i don't testify against me and i think in it was a borderline case there because the defendant actually went up to the witness and said don't testify against me and i also note that and most of those those common law cases those english cases and an american early american cases where the just those cases involve actual intimidation and bribery and not necessarily actual murder so it was it was a witness tampering where you actually have a witness who's about to testify against you and yours case but as far as the statements themselves i don't think he's ever recalled making them also do we know the specific moment when he lost his memory how they were does it possible that he had his memory at the time of the ambulance statements in mos some time before he woke up in the hospital well i think i think he did i mean when he was when he was answering the police question in the ambulance he could recall the events obviously he gave a extensive narrative of what happened and those cross examination to explore the witnesses memory to probe recollections to compare statements made to rely on the old taken by the witness and to rely on the witnesses demeanor there because the witness was subjected to hypnosis on the very subject matter of those prior statements any answers he gives with regard to the accuracy of his prior statements will be influenced by hypnosis and so on that and i and those grounds i submit that the defendant cannot adequately cross examine the witness under the sixth amendment in the states with the record i'm going emergency the state argues that the statements here were close to the crime but they were not during they were not during the crime and that's the that's the standard set forth by davis the as i said the line drawn by the davis car was when the offender left the scene once a defender leaves and the defendant is providing service to clarence providing statements describing past events that if not for the gunshot wound one lost his memory if not for it and lose its memory it would have had to some it's a hypnosis again that that's an intervening cause similar to the cases in which the defendant stands a while he's while he's he's doing his trial a witness dies there's a side of causal connection there as far as the case the state's reliance on reynolds reynolds is an exact witness tampering case the confrontation clause is designed  a what was was a victim of the crime with which i was charged and convicted simply a witness and furthermore that he was in the front not interfering with a crime and not interfering with shapes and what was the purpose for shooting well i don't think there's a distinction between i mean it was all one crime at all the shooting i guess depending on which version you you listen to the shooting occurred either before the sexual assault or after there as i st there's could be there's different reasons that this that janet could have been shot whether it was to subdue him so he could accomplish this crime or whether to get away i mean it's  just one of many reasons and the state's reliance on inference shows that it can't prove that by a preponderance of the evidence that this act was done to prevent a witness from testifying at trial there's not as a way industry there's no evidence that there's the act w thank you both counsel cases number one zero five three one four one zero five three