that is integrated into the overall jury determinations as to the charge of crimes and we don't know what was utilized and i don't like the level of preponderance of her from the proof of any other circumstantial fact you don't have to prove was not given that element was not given separately beyond a reasonable doubt and they were never even told this is that had to be done beyond a reasonable doubt then i might i might concede some of the stuff that if they were told that that elements in every element ha happen and they excused it by saying to another mazing things number one there was a jury questionnaire the talk about resolve it out but again did not specify that each element must be proven beyond reasonable doubt and secondly the argument of counsel now we all know that number one argument of counsel cannot supplant for proper jury instructions we know that and certainly a jury questionnaire cannot supplant for these instructions and so that's how the california court of a one which i think does not really apply here because needed was a situation where the fertile judge took away the issue of materiality from the jury in a demand a jury trial and found it true beyond reasonable doubt so in reasonable doubt so if you're thinking about victor and sound of all of it did not deal with what we're talking about today whether those cases satisfy the wooden ship decision it took off on whether the nebraska instruction and the caliber instruction mr hanson if you could help me as well one of the the puzzles that i have is the standard that we are to apply in reviewing to follow a hunch as wrong as question assuming that we don't agree with your assessment that this was a structural error are we to engage in our own correct analysis in order to determine whether it was harmless beyond a reasonable doubt or under basis of the facts in this case that there was no reasonable likelihood that the jury misunderstood the instructions in an unconstitutional way the question is whether or not this case falls into the subset of cases  determination that there is no reasonable likelihood first is that the instruction is explicitly did you tell the jury that the prosecution had the burden of proving guilt beyond a reasonable doubt so those instructions comply fully with with victor and with a suitable second i think the the arguments that the instructions on instructions never said anything that contradicted the jury's obligation as set out in the reasonable doubt instructions to make a further determination of guilt beyond a reasonable doubt third i think the fact that the jury acquitted on two of the three charges realized and the claim that the jury somehow looked at the priors found them beyond found them proved by preponderance and then automatically found the defendant guilty the evidence of the priors was the same as to all three counts if the jury believed that preponderance finding on the priors suffice defendant guilty they would have found him guilty necessarily in all three counts i think fourth as the court of appeal of the state pointed out the arguments of counsel both the prosecutor and the defendant and and on the need of question as well any reason you will certainty about whether neater and harmless error analysis apply in this case i think goes by the wayside because that's a problem with your hands the only problem i have with your argument is and i respect your position because i find it very difficult to make the analysis that direct asks us to do because it really does ask us to sort of put ourselves in the jury room and view the record as a whole and try and determine whether or not there's a reasonable likelihood that this led to the error but there are a host of cases in which there were the facts in the instruction and yet the supreme court tells us that we must apply a harmless error analysis where we don't find the instructions to be structural so i guess my response to your your position is the supreme court doesn't seem to agree with you well i think it all depends on what we're talking about here here we're talking about a wind shift here for example meter meter could mean i agree with you if we decide its structural that's the end of the inquiries i understand the supreme court authority because it says that we presume  this was important because this was his that student description of what happened and that is important because it reflects on the moose statement of the facts by the court of appeal in finding  ruling by the state trial or the defendant's accident reconstructionist was not competent to testify to the evidence that you've just proffered and that we should grant he was really funny that fa absolutely and on him what authority do you have well you are right to do that under twenty two fifty five well the most recent example is the alcoholic case where he death penalty case the have nothing relevant to say about it about his defense you know that the supreme court basically says that's the job of the trial judge to make those kinds of information well as well as that decision reasonably made in this case again the fact i don't think that's the law is it counsel is that the question on an exclusion of an expert on grounds that he's not competent to offer an opinion and it's understand that the reason was he'd never gone to the accident scene he was relying on photographs that were taken after the vehicles had been moved basically what looked to me to be pretty legitimate reasons for saying to the expert you're not qualified to render an opinion i mean we don't rely on the pedicab itself was quote that it was returned to mr indian the owner here's the quote before she left is that a stance or i had an opportunity to have that not happen that's thirty or forty two no words for it and look at the pentagon right know even though this guy has a lot of experience with regard to vehicle vehicle accidents and vehicle progress in accidents he's not investigated vehicle panda cam accidents well of course the expert said this is a car on a bike who didn't get involved it was not in line he fit the right rear tire of the bike so i would say that the criticism that he hadn't done investigations of pedicab accidents per se would have gone to the way to exclude the testimony because we were reviewing a federal trial judge's ruling it would still be an abuse of discretion standard or not and you're on ed review here i mean which is angle and the articles in his the talking about this issue are innumerable and to exclude him as well as stating they have no pertinent experience was irrational and i think this is not rocket science first he said i want to say that the attorneys have told have allowed me to come in and say this to you so you give the juries the imprimatur that he's the defense counsel agreeing with him going in and telling them that this is not rocket science and common sense in your own common interpretation of the words will guide you through these instructions which i would say is well it may seem counterintuitive to argue to you that telling a jury to use the common had questions about these instructions and they heard the judge say you sure own meaning comma your own common sense meet these terms that gave them a license to use whatever they thought the terms that they had trouble with m or my question is yes yes it was a while for instructions and basically just decided whatever they fucking well they gave well one of the arguments with respect to the assault intent is that the felony that was given them didn't have an inten component in the in the prosecution saying well they went they have to go to the ally al to get the definition so there's a good reason why the jury came back and said we've got a problem with intent in this case because it's not in the felony instruction they could have used their common sense common meaning whatever that would have been on the assault the structure to convict of the assault with a deadly weapon the same would hold with respect to beyond reasonable doubt and celtic two nine zero which tells the jury that they can convict on satisfactory evidence if they have the feeling of an abiding conviction and the truth of that shark now that doesn't sound like what the supreme court term moral certainty which is a probability sneered the current you know i know goes you must have a feeling abiding conviction or used to say to a moral certainty it had a probability standard they that unfortunately the court remove those words so now we just have an abiding conviction which means a lasting belief and that your quest that you're given the wild card instructed by the judge to define those terms which you asked for some dictating here that you have to use express words and it seems to me that's the position that you're now there you're i have no quarrel with that because the supreme court has intimated that there may be no definition of beyond a reasonable doubt but once you instructions i've done a survey of all fifty states and there are numerous formulations reasonable doubt there are even cases that have approved the world certainly standard after victor they said well the supreme court found nothing wrong with the  is where counsel started off today saying that the state court of appeal made major factual errors we don't even have to reach that and we don't have to even reach that conclusion for the simple reason that such as this would typically arise and how it should be decided i find both the and the correct analysis we have a there is a conflict in the circus as to how this should be done we have an early decision by the sixth circuit and nevers deciding science determining that based upon that common understanding the jury would not have taken offense at this would not have determined that the court was attempting to cut off all further further discourse no individual judges you may well conclude well that's not the type of analysis that i would conduct but that's not the question the question is can it be said under under a chapman and deference the deference to the court that the ninth circuit's pattern jury instructions three point five on defining reasonable doubt that a reasonable doubt is a doubt based upon reason and common sense this is within the ninth circuit's had a jury instruction there was nothing due process and so i would submit that this course is bound by that handles determination as to that issue i would further i would further agree with the comments of judge holman for the fact that regarding the supreme court's determination in victory nebraska violation of due process thank you reach that that necessarily new to the in europe to the detriment of the i think well they would they would be upset so he's their questions were the questions they were asking concerned intent and the burden of proof beyond a reasonable doubt t