rejecting this claim that was standing the fact that there is controlling authority in the circuit and in particular i'm stupid for society have a better record and even more particularly which the statement wasn't years so i mean i had to said to chavez decision has caught complicated and convoluted would be an understatement but i don't think that there's a there's there's two of the three crucial elements are admitted there were no one in the waters no understand it's bad there's no dispute about the fact that his statement was used in a criminal proceeding it was and so the only issue that we should have had to prove was whether he was in custody and instead of only having to prevent an issue which is what our proposed jury instruction would have d we were required to prove corrosion and that's a completely different case so there's no way that it could be shared in that situation it was basically recheck a claim asked to decide that question but also they were asked to decide whether there was a correction and due to the factors that the court gave and so there's no way of knowing whether the jury decided dead he was in custody but what happened wesson coercive you just can't tell because they were not given an instruction that required them to just decide whether he was in custody or nat had some jury questionnaire separate jury instruction or you know something that focused their attention on that issue a lot and then you might know that but you can't have that in the situation where we don't have a problem with the factors that were in the ultimate jury instruction about whether he's in custody but that was added to  question of the instruction so you can't tell whether the jury decided he was in custody in which case we would have had a complete violation and of section one thousand nine hundred and three claim versus the other finding you just you just can't tell you so that's another reason why i say it can't be chance to be a harmless error that the judge should have given the instruction that we propose which was a proper instruction under the law and the nd and the jury should have been given an opportunity to decide whether he was in custody should i switch to statement and as i read the cases you can actually trim tab whether he was in custody or not and so i remain and we would at least have the option if you overturned based on expert for trial well i would go back trying to try but it would go back for it it could go back for a new trial on both aspects of the claim right other words it could go there could be alternative theory is that what could be advanced of it to the jury one of them testimony was really the kind of course confession testimony that is given pretty routinely and in criminal cases and in some civil cases that we've stated obvious that the jury doesn't need an expert in order to be able to understand why god would be coercive well but really the question is whether it's helpful to understand the evidence current issue in that case right under seven o two subtle and the fact that there are subtle doesn't mean that they would not lead to a correct confession and what dr brende on that one can do and was prepared to do was to explain i some of the techniques that mr tito was going to testify about well exactly the kinds of techniques ted and resort and psychological coercion that would lead an innocent person perhaps  that can lead innocent people to sign a statement because i think it's i can be a problem that the video is going to show that i'm not guilty and then of course there isn't a video or minimisation techniques to say well that's not such a big deal you know maybe you know you don't have a girlfriend that kind of thing maximisation techniques threatening someone with deportation someone from another country seminal event with uncertain immigration status on what she would have been able to do is provide the science that shows people crewed in a situation like this even if the church energy didn't believe testimony and understand the situation and then the stand that at least there's a possibility that these kinds of techniques might lead an ensign person to sign a statement like that and that's the kind of testimony that's given  case pretty routinely and is often a basis for reversal when it's not given because of how important it is and because ordinary people don't understand that innocent people do this kind of thing now and the judged could it have limited to testimony in any way the judge thought was appropriate and if there was concern about making that giving testimony about ult is relevant to the question of the credibility of mr chico's account which was the crucial issue in the case and there really wasn't any good reason to have kept it out a district judge said that she was and all because the cations to be an expert witness there is no question about that i don't think there's any challenge to scientific methods that there's not a diction really because this kind of science is introduced routinely in many cases she chose the fed and thirty seven criminal cases including the criminal case in this case and  this goes to the very heart of the plaintiff's case i don't put an issues with no reason to keep it out there's no force really issue here and for that reason it was it was not harmless error it was the kind of thing that was crucial for the jury's understanding about how or to resolve the credibility decisions that had to resolve about the facts in the case i think i may be i'm not sure  jury it spoken and rendered ebadi i found that case they found the plaintiff evidence and credibility regarding the case of him being arrested and prosecuted for sexually assaulting a female patient and it cut thirty then acquitted and then claiming that the his appeal placing blame for the verdict on the district court and claiming it abused its discretion to disingenuous with this record of careful and repeated in fact on seven different occasions repeated consideration of the matters on a and the record is strong and clear to the people i would really seeking a rd bite at the apple and if i position that the jury verdict and the district court reasonable discretion should be a fund now i'm going to proceed differently than my colleague mr hopman because you don't don't spend much time in your briefing explaining why the jury instruction properly articulated a lot articulate not sucks i want to understand your position you agree with me and i think standing the clerk's being in jackson we think that the court can find several things st that it is harmless error because one does not model jury instruction on it secondly in terms of that question a question that the court w ask for a letter he didn't ask to leave he didn't they didn't engage in any question of behavior so absolutely your honor we think that the case did not incompatible with jackson because ultimately it comes down to a credibility determination between determination of fact that we're not able to do it if we find that there that instruction was was wrong it was problematic so i guess i'm trying to figure out i mean and then beyond that looks like if the instruction should have been that there is a there is a way to go forward one thousand nine hundred and eighty three claim based on a violation operand not sure i understand how we would be able to make that determination and it's very likely that the jury could have determined that he was incrusted without a violation with that without his miranda rights being given are deemed and  you know based on the feeling in jackson we think here that the court can step find that it's not necessarily harmful because at that that this entire case is disputed it's coming down to entirely too greatly different but the incident that the jury was instructed to either believe or not believe whether or not the instruction could have been better while there can be argument forever on that point but our in terms of jackson here we think your honor that you know in terms of what the supreme court authority starting with chavez denying the facts of the preselected rule and then and all of the cases except for jackson's bad by planted there were a corrosive interrogation element then when you get into jackson where the court may really have changed the outcome and here we think it would not because this case comes down entirely to credibility and the jury influences your response you know rise and fall on your interpretation  review was that there was a majority opinion in is twenty minutes per side all right thank you  planned that point i can't argue against that however well we can argue here and then that we do submitted that even though we still think that the but the in the record serves to show that it would have changed the outcome here because so the jury did not have to find him a miranda violation i mean however you know but you know instead of coercion all they needed to do was find a miranda violation instead of coercion it could come out differently here violation so i guess i'm trying to what are you relying on to suggest that the jury found no miranda violation other than an assumption about who the jury found credible i don't know if that's this technological participation