that there are just two prerequisites to the admission of lay opinion testimony and those are that if you birth rationally based on the perception of the witness and second that be helpful to a clear understanding of the witnesses testimony or the determination of this court would be very helpful for that reason but other illinois courts have ruled on it and fortunately the level of evidence seven to one which was adopted in two thousand and eleven is identical to the federal about seventy one and this court has ruled in a similar circumstance dealing with the classification all that where they want to go in the parable by the same it is helpful to look at those federal authorities so we have a wealth of authority from around the nation and from other states that also have an identical version of  and those cases when they're looking at helpfulness and talking about the type of player opinion here which is to say opinion identifying someone in surveillance footage they say that the single most important factor in determining helpful developed in any number of ways and indeed only piece like this senator does is it more familiarity than the jurors have this might seem like a low standard the reason for that is simple that's the same as in most areas of evidence we've moved away issues with that or with that evidence the jury is given the chance to assess the evidence give it the appropriate weight and courts have ruled at the defense about the extent of the witnesses familiarity with the defendant about the extent of contacts between that a witness might have some suggestion of bias but we don't say we're not to let you take the stand instead we say we're going to rely on cross examination to bring out any potential issues of bias and the jury decide what weight his testimony  should be get say it's very similar principle this is the modern trend in the admission about it and it's been recognized nationwide so that's why the standard is what it is and again very small amount of prior familiarity is enough so to the extent that there isn't there is not more evidence of familiarity in the record again that is something that should be held against the defendant defendant as the proponent of this argument having responsibility for it the record for and are free to people be given this from this court like with much evidence the evidence comes in unless there is an objection and there is discussion on the issue of course there could be a proffer in that situation or here but that wasn't the issue that was presented as there was no opportunity to raise th  their case this is jeff cation issue that was at issue so basically what you're saying is because if the police officers who rest of the defendant and interviewed him now have had contact him then they will always seven i want to buy abuse of discretion standard and that really that makes sense given that there are factual determinations involved in that in that decision but i think indeed that's what the defendant is arguing here in part is that there were there was we needed more facts about who knew the defendant when and under what circumstances so clearly there are facts to be heard and and wait making this analysis that standards of programs which i've not seen the video yes hopefully we all have their chance to that before this case is resolved is there any question about the fact that it's crystal clear i think i would not use the term crystal clear i would not i think that you think in my mind their own determination as to whether that's the person the video why do they need help well respectfully around to the standard isn't whether they need help it's whether it would be helpful it doesn't mean it's essential it just needs to be something that is helpful and it is helpful no matter how strong your own opinion of that issue is it's always helpful to hear someone else's opinion or i hope so otherwise i mean the wrong place i think that it's important to allow the jury the chance to view is a video on its own which it did in this case and the record reflect the jury had its own opinion but it could still be helpful to hear what other individuals who had this prior familiarity think about it is certainly not dispositive the jury was told that again the jury was given the opportunity to hear that testimony and give it i wish i could say that wasn't me but it it's even said the photo was pretty cool asked if you could have a copy and it would be in the newspaper so he very thoroughly admitted the issue is to which this alleged ever consider in light  be in that surveillance because i was in custody in another county on that date when they followed up with that county he was not in custody take it been released some three days prior to trial so then a trial defendant altered crime and moreover as i've mentioned the alibi defense was impeached by his own earlier state where he gave two differing accounts of his whereabouts at the time of the crime so in light of all of this any   the underlying question here is whether the late in testimony was helpful to the jury under rule seven zero one however federal courts and the times in court and people versus mr in people versus stark's place a standard on what under what circumstances is a witness's testimony helpful to the jury and the standard from these courts have developed better able to correctly identify the defendant then it does not meet the helpful to the jury standard under rule seven zero one it is not admissible is there anything mr o'neil in seven on one that  defendant's appearances changed between the time of the recording and where the video was unclear or a limited depiction that we've we've heard before is there anything in the language of seven zero one which would limit it to those two situations i'd say no your honor and i in my position is this toxic or did not hold that either one of those two conditions must be present for later and testimony to be admissible whole we look through the entire record and find no reason there is no reason why any of these witnesses are better able to than the jury to correctly identify mr thompson on surveillance video therefore it does not meet the helpful to the jury requirement under rule seven zero one so the toxic court did not hold that either one of those two conditions must be present but this may best be some places in the record to a steps so you're separate yourself a little bit standpoint it i disagree with the counsel that the times in court held that those two conditions are required that and that is that there is language in the times and case it supports that where the court look throughout the entire record so it is your testimony about the identity of the person the picket in the surveillance footage then the state is the offering party state it was the party seeking to present this late opinion testimony and it was their burden to demonstrate a reason why this testimony was helpful to the jury why this testimony why these witnesses were more likely correctly identified mr townsend and the and the jury because again if the juror it was the state's burden to establish that at that motion the lemonade here likely to correctly identified the defendant in other words mere familiarity in itself is not does not meet the requirement of help from his to the jury it is improper under the federal case law  demonstrates that the witness has some special familiarity with the define such as he observed defendant over a period of time and was aware of some distinctive physical characteristics of the defendant it is revealed on the video the surveillance video but is not known by the jury in these circumstances a witness would be more likely to correctly identify the defendant the defendant then the jury and thus meet the helpful to the jury requirement under rule seven zero one people versus starts provides a good example of this special familiarity that allowed the late pinioned witnesses to testify starts involve a prison guards identify movements and their body mannerisms because the guards were familiar with the body movements and body may have risen to the defendant that the jury was not in also in the context of the video depicting of the prison the guys were familiar with that they think the prison guards were in a better position to correctly identify the defendants in the video and thus they met the requirements of helpfulness to the jury under rule seven zero one in this case the record is this is the types of court held the record is not just demonstrate any reason why any of these witnesses were level of familiarity made them more likely to correctly identify mr townson and the jerk none of the witnesses indicate characteristics that formed the basis of his of his identification kevin jackson stated that he did originally he didn't initially recognize mr townson in a still photo taken from the surveillance footage but one week before trial testimony made her better able to the jury to correctly identify mr times and also brian office officer brian huff testified that he was familiar with mr thompson from previous dealings but he did not explain anything about how many times he had seen mr townson or under what circumstances or india or that he observed any spectacular characteristics and form the basis of the identification so none of these witnesses the record position to identify the mr townson the dead who have only seen him from a photograph actually the jury was disappear your position to identify mr thompson because they see the video and they see him in the courtroom more than these witnesses testimony the finding that it goes to the weight of the evidence and any deficiencies in good in the witnesses level of familiarity can be brought out on cross examination in this case we have spent especially this we saw officers identifications to reinforce the state's argument that mr thompson was the person depicted in the surveillance footage not of the witnesses were more more likely to correctly identify discretion but under any standard of reviewing this case yeah this is not demonstrate that the witness for witnesses level of familiarity with sufficient to make them more likely to correctly identify this two times and then the jury so your argument would be the same well your honor is depends on if you are whether the offer and party can establish a sufficient level of familiarity with the defendant that makes that witness more likely to correctly identify and in this case none of the work that's the problem in the end there's no submit your honor that she would have a factor of four witnesses in three police officers identify mr townson on the surveillance footage in addition to disparaging mr thompson's character with insinuations  prior criminal history and drug use was so crazy additional that it made other evidence in consequential and whatever race any reasonable doubt the jury might otherwise have hell then the jury was presented with two conflicting statements by mr townson while that was meet the other no that wasn't every can't get well this this creates a question of credibility mr thompson's credibility evidence fingerprint evidence any other witness identifying mr townson to be connecting him to the high risk plans mr townson presented an alibi so when you consider all that lack of were you ask it is not even to look at the other side of the evidence to find whether it's closely balanced you keep saying that the the cumulative idea evidence was so prejudicial it could never be deemed harm you know i think that you're taking out of at that are you saying that it's it is so one constable to to have these four id witnesses that it doesn't matter what the evidence is it's well my first response would be your honor the yes the evidence the cumulative effect of this evidence so think that the jury that erased there is there's there's maybe other evidence in consequential so yes the first first answer would be yes the cum effect of this in itself it with police officers for with this is piling on identification testimony yes that is in itself enough to fight it is something that occurred throughout this case however i recognize that  the harmless error doctrine that you know this court will will have to address those that question but in that regard the burden is on the state to prove beyond a reasonable doubt that the error was harmless and not under any and improper one when it concerns the the ultimate fact and ultimate fact for the jury and secondly when it comes from police officers in both of those facts are our presence here as to the ultimate issue this state case regarding ip identification was based upon the surveillance footage in closing argument the prosecutor told the jury you saw the photographs you had several police officers identified mr townson and witnesses already better positioned to identify him than the jury because they have that our military having seen him before or they are better able to reach back in their memory banks and say that's the guy it's like we're with this is making in person identification on this yes and that is consistent with those cases like united states x l united states jackson that rely on a very limited contact even just the viewing of video or listening to audio i had a job there this is entirely consistent with this rule that we place how long ago all of these days without touching on the fact that some of those contacts may have been in the context of a criminal investigation or even harassed the mistress so doesn't the presence of a police officer alone give the end friends that there was some criminal background or some other background itself without even having to ask that question does not your honor and this court has previously recognized this i don't have a citation with me it is in our brief that the mirror and the mere fact that there's no implication that anyone the police officer knows he knows because that person is a criminal that's that i think there's already in our brief or that point from this court defendant also argues that there well yes but they don't say you must be especially helpful it doesn't say familiarity it up you're right it's just as helpful so if the witness is helpful that's the end of the story it doesn't have to be based on a special familiarity if you look at the case law that's what you see but there