to hold apparently that the illinois supreme court wrongfully decided williams that which i've maybe you know better than i or our ability to make such a statement court but now with williams has been decided by the u s supreme court that we should pretty much put that issue aside well your honor is mr to run it knowledge is that the united states marine corps recently ruled and williams versus illinois that there was no confrontation clause violation on the critical issue there being that the report that the expert relied on was found not to be testimonial but aren't in our case we don't you that report that the expert relied on in our case was testimonial that's the critical t distinction be water our case and williams if you take a look at justice thomas concurrence and how he defines what is testimonial evidence what he says is required in order to make a report testimonial is that there be some kind of certification of the process and the results that the testers used and in this case what we had is exactly that gene up in ada in her testimony certify the accuracy of of that report she testified to the processes that the testers employ she was not in the lab but she says she she testified about what they did she vouch for their accuracy she testified about the quality control measures that   under to under justice thomas definition of west that's only his opinion the right one out of my well that's that's all that we need to get five to get five members of the jury to agree that this was testimony we know that it's hearsay because a plurality this is a jury trial here so we know that the jury was not able to to be able to discern what evidence was given for the basis of the opinion and persons was considered for the matter so the plurality agrees that this was considered for the truth of the matter so the only critical issue here is was a testimonial in thomas is the swing here and so under his definition of what is testimonial evidence your honor we argue that this case fits that and i'd like to remind the court that the court might even need to reach this issue because it is constitutional in nature you know and as if you if this court reverses on issue one there's no need to even reach the d n a issue and i'd like to go to issue state failed to lay an adequate foundation for his conclusion kovacs nearly half won the jury that he determined that there was a match but he did not disclose any points of comparison that he found between the two prints this court was case not only in this jurisdiction but in other jurisdictions but i'm sure those circumstances isn't the real question how much  someone must say i'm directly examination to be allowed to offer the opinion and not whether  and i aren't most cases talking about the weight that should be ascribed to the opinion which of course is a decision for the prior fact well this course said that when the number of points of comparison start nearing zero certainly fertile ground for cross examination of the person and allows for someone to have a a question about whether to accept the opinion offered by the expert what we're really talking about here is whether it should also be part of a gate keeping function to see if you don't say this in direct examination we're not going to allow you to offer your opinion and that's a much different issue is it not what you want as the issue here is whether or not the state provided any basis for the defendant to be able to cross examine how he reached the conclusion mr colfax went on at length about the methods that he testified he had no notes he did not count he did not know any president arafat or cross examination from the defendant you might get more ammo that way that's exactly what the defendant did cross examine him on but this court say it in separate  examination that occurs as to the absence of detail is hardly adequate to test the substance of examiner who shows again and that is exactly what we have here all vote all the defense counsel was able to cross examine him as to the lack of detail he was never able to get at fingerprint examiner produced a chart of the latent print and had a diagram of i'm sorry a photograph of the defendant's print presented that front of the jury she got off the witness stand into the jury well and pointed out specifically five points of comparison for them to see and then she stated to them that she had found thirteen points of comparison in total and total that is completely lacking right politically moved beyond the realm of fingerprint examiner and take the broader view of what good is a foundational requirement for expert witnesses to give their opinions such things his opinions as to say post traumatic stress disorder or things of that nature and look at what wilson versus clarke in its extensive progeny and said can you point to other areas where the courts of the state have been so stringent the foundational requirements for offering the opinion in the first place or even if you even if you go back to the case that you cite the wilson the bar case that's based on rule seven zero five and if you take a look at that rule that rule says that the expert does not have to  give his underlying basis on direct but he does have to give in on process if the defendant asks what in this case the defendant could not get at it the defendant cannot get to that underlying basis because kovacs said he had no way to get it to him he said i had no no limitation off the top of my head no i cannot but this what this case clearly held in safford is that some points of comparison need to be disclosed we don't know what kodak's found one we don't know if he found to we have no idea because callbacks cannot testify to what he saw and this issue is not forfeit as the say contends because defense counsel made an object sion right when officer called i'm sorry medical examiner burglary found on him and this this court found reversible error in safford and in that case there was significantly more evidence of guilt than in our case and separate there was an identification of the defendant by the victim there was an identification of the defendant by a witness and there was also testimony from someone who claimed to have sold the actual gun to the defendant and in this case we have only the d n a evidence which the jury we don't know how much weight that this is it not you know effect the jury's decision the d n a evidence i mean it's complex some people understand it some people don't they didn't have anybody to testify who actually test that the d n a and came up with  profile there was nobody to testify from cellmark who tested the the tissue so that the jury in their mind could have been thinking oh this evidence is not so reliable because all we have is you know made up valjean for what someone else did and so in this case we'd replied he used the quantitative qualitative a c e v method and he found a sufficient number of points of sufficient clarity and quantity and that's what makes this case different from safford he didn't give a specific number and when asked repeatedly on cross examination you know did you count how many points of comparison he made it very clear unlike the examiner in safford why he didn't count he talked about the complexity the overall assessment required where one of the key pieces of evidence is fingerprint or palm print they're going for patient either case that explaining the areas of similarity and maybe even showing exhibits demonstrating the similarity would be something that the careful prosecutor and a careful fingerprint examiner should do  think this examiner did what was required for direct i think under wraps he's like the lawyer asking the questions i mean there is such a thing as foundation and you're practically writing the brief for the defendant by not putting on some kind of foundation it doesn't seem that difficult to do it in this case the foundation was there for the admissibility of this testimony on cross examination could the defense attorney have asked him specifically you know where point a match is point b he laden and the standards in front of him and they didn't ask those questions and the reason they did that the defense did in that those questions is because he all they had is their trial strategy was reasonable doubt and in closing argument he said to the jury did you did you hear about any points of comparison do we trying to make maybe in articulately or in artfully is that that the state by not putting out much of a foundation i think that's generous is that only supply they defend it with the main argument that appealed also currently was the main argument in front of the jury you're saying we have that we allow that we have a trial but you know instead of enabling what this is going it by putting on some foundation certainly certainly as we argue in our brief in the mitchell case that was done that was done and that was very effective and our cases is not we didn't do it we did it mitchell but we didn't do it was done suffered either at the foundation was enough enough that the that the testimony in the opinion was admissible it went to the weight this is the way th testified explain his methodology was for the jury to decide his credibility and it was it was a trial strategy of the defense not to specifically have that comparison done that is that is true but this examiner unlike safir did explain at length in great detail the overall assessment that he did it wasn't a partial print it wasn't a finger tip it was a full palm print right hand and left hand and then a second set of  glass they got hung up on this the jury in our case deliberated for fifteen minutes they were confused they determine the credibility of this exam and they and they came to their conclusion that the testimony was credible if there are any more community the scientific community that's that's the commonly accepted method for comparing fingerprints and he explained that yes in conclusion this case is not safford our expert found a sufficient number of points of comparison of clarity and quantity he explained the basis of his opinion it was properly admitted to trial and the jury was properly able to weigh this this testimony we asked this court to affirm a defense conviction residential burglary thank you first the state mission mentioned that kovacs testified that there was a list the fish and number of points i'd like to mention however that kovacs did not say what is the fishing number was it could have been one it could have been two we have no idea and in this case the court is clear that once that number starts reaching the ro we have an m usability problem and that could have been the case here because we have no way we have no way to find out what his points of comparison w council also mention that kovacs went on at length describing the methodology i like to say that the examiner and sapper did the same she explained level one detail level to level three she said that once she got her results it was verified by someone else the same thing we're honest let's say this case going back on remember this defendant would be able to challenge the fingerprint evidence on whatever basis is available at that time whatever bases the trial attorney wants to challenge it she may challenge it on the reliability she may challenge it on this particular base the foundation whatever