here to this court today has to do with the evidence sherry problems that arise from the interception of federal rules of evidence to dealing with inadmissi one any lay witness opinion must be a rationally based on perception of the witness one on his perception and it must be helpful in determining a fact in issue and the fact in issue in this case it issue you're arguing is that the record doesn't support a ruling that the witness had sufficient knowledge of the defendant to be able to testify and identify late opinion testimony and if you tell pull to the jersey it would be admissible if he doesn't know any more than the jurors there's no point in getting his opinion so that's why we're concentrating i was concentrating you know more than the jurors and it seems to me it's quite possible that somebody would now even from the back the way someone moves their shape there's something about them that could possible for that person identify that person however if he doesn't know the person more than the jurors view his opinion it's not going to be helpful so i guess what judge reinhardt was concentrating on when i am is is there not to yes i think that he would have to at least be able to demonstrate that he's had face to face interaction and then beyond that i think what that interaction consisted of would be important because we would want to know you know was he one on one was he focusing on on this person space or bill or was it you know was it down were you just you know get i mean have we have a record as to what he knew about the am not satisfied from reading the transcript which i have read several times quite a few times that that it was established that he ever actually personally met with cain he talked about his usual procedure and it's certainly part of his job and his job description to meet with as many of the inmates when they first come into atwater as possible i think the testimony was that there were sixteen hundred inmates in the prison and in the shoe area the question how many times in the time prior to june twenty seventh i'm going to have my client got there had used boken with him in person there would be a minimum of at least two times  usual practices he talks about the fact that when inmates come in and that's one that's one interaction that he has that's one conference and then often another a second but that's not saying on the united states government that's something that we believe the government should should have brought in to prove that there was at least some contact he also said that his contacts were average five to five to ten minutes or a five five to fifteen minutes so if there were two contacts you average it out it's a total of about ten minutes that he spent with mr cain and i would submit to the court that that is just not sufficient contact and in a prison environment where so many of these inmates they're all tattooed many of them have shaved heads they have loyalty i think that there really is  very valid argument to be made that mistaken identity can occur unless you're truly familiar with the person you know something about the personality as you said the way that person walks kind of an attitude that's shown has no more questions i'll turn it over to argument about the identification one should step back for a minute this is a unique crime if it takes place literally in a cage there's one person who's attacked five people who could have done it a univers who identified the defendant in the videotape identified him from the back is somewhat misleading the witness testified that he had reviewed that tape approximately thirty times and the question was as someone is depicted coming into the cage t i think when i read you that many times in the time prior to june twenty seventh and the time my client got there had you spoken with him in person there would be a memo at least two times is there anything other than that one stent statement about with the defendant but i mean having seen the defendant other than yes interviews people generally when they come in but he doesn't know whether he interviewed the defendant right that's what i was going to write so there's one that's if he doesn't know whether he interviewed the defendant that they were interviews with the defendant there's no statement of that he spent more than ten seconds with the defendant and either of those two times he spoke with them there's no indication of what he's speaking with him meant whether it means he walked by him and a yes and it seems to me i mean i don't know what your view of this is but you know when he said he met with some amendment two times wasn't really talking about his practice rather than his recollection i don't see anything in here where he says i remember him while he was talking about i would have met with him a minimum of two times when i took that was it was a minimum of two times like this court's got it's called record and what we're looking at it is an abuse of discretion standard and that's of course important to remember the half the most significant thing though is the well for example me you start off and you end the cross examination when did you interview my client the specific date i'm not sure of that would have been the computer you bring it up on how good it is or not but it's just it's a relatively good good visual depiction the core and i don't want to stand here and tell you i don't how we would quantify good or bad there's a record reflect what kind of machine it you can the only thing you can do is circumstantially of course you can hear what counts are arguing you can see it and then of course the standard of review is good any rational jury from these facts reache it's hard for us to tell what the facts are without knowing what it was played out and if you look at it i can normal computer in your office you couldn't tell anything i can tell anything from the courtroom and perhaps i don't know if we want to  know there's a big there's a big screen behind defense table which is a normal television screen no bigger than that where behind this bench  in very very roughly estimating fifteen feet wide nine feet high maybe maybe not that high but i would say at least fifteen feet wide knight's maybe the size of the decorative  ework behind the fan chair or the the point at which the district court wouldn't let the identification fee made the ears for inmates walking in a line up and down there is walking up and in the record is that this in many was one of the one hundred thirty five or one hundred forty inmates in the secure housing unit and the witness testified that he went through and explore what was going on with each of those witnesses in a week each of those inmates in the shoe in weekly meeting every single week he went through what was on going on with those people and that's that's what's been the record and that's to reporters transcript skill at recognizing people based on their computer their computer imaging draws a quarter circle we played it apparently played it on your own computers you couldn't tell much i think one the presentation the court was back is to be the controlling catch yes and that parents of the witnesses familiarity with the defendant's appearance at the time the crime was committed is familiarity with the defendant has very manner of record that mr kroll you did not hear the tape until after he had been told by other officers who was in the cage so he when he initially saw that what was on the tape he already had a preconceived idea he certainly universe had been limited to these five people and so if you get an idea in your head and then you watch the tape thirty times would seem to me you're just reinforcing  alone i would probably tend to agree with you but i think that all harkens back to the sufficient contact you know where all we go back to that and even if we assume for the sake of argument that he did meet with cain two times one or two years ago and then there was testimony that there was a second or that there would have been a second but there was no testimony as to the timeframe of that so if we look at the usual practice and say well ok let's say there was this one meeting back regarding the identity of the weekly status meetings kane was not present at them and i don't care how familiar he is with computer technology and the digital system and viewing digital images that in the case of mr ben the witness had met with the defendant four times in a two month period for a total of seventeen months and that didn't stablished just in contact even if we were to say that there were two contacts with kane and it would have been over a two year period for about fifteen twenty minutes of that i don't think those two are analogous at all and furthermore in henderson a similar case dealing with this issue seem to me that probative value of the money is greatly outweighed by the unfair prejudice of who he was after all this was a witness and the victim merely said that he had an argument over a ball game with king the other four inmates were not as witnesses they were there they were percipient but they don't we don't know what they would have said they may not have wanted to be involved in might have said we don't know we don't know but whatever they want to says they want to have the credibility of cole who's been in law enforcement for seventeen or eighteen years he was working for the air and was in the air you have this core of high moral authority attached to him which was very persuasive and i think unfairly prejudicial thank you