the civil lawyer could do you're out of the right arises from the due process clause so it is a right that applies to both civil and criminal it against it as it is has this court ever applied it in a civil context yes  decision in the f c c versus coverage decision well did it apply it or did it presume it applied and decided in that case there wasn't a problem we read it to say that it applied it i don't understand how you read it but you're familiar with this court's memorandum dispositions and it's not unusual for a court this court to take the easy route to a result and not deal with the hard question and that unpublished decision there was no discussion as to the wisdom or merit of the rule that it would apply in the civil context it simply said what happened here was invalid shing applying the criminal test for what's vouching so i go back to the question in your brief properly explores the universe and gives a seven circuit case but i don't see anything there that suggests published  that the ninth circuit has ever articulated the view that it applies in the civil context is that the case with respect your honor because court could have said we're assuming for the sake of argument that about you dr applies here and then go on to make it's really kind of good but it just combs gives us a well established doctrine that certainly the california attorney general's office was aware of since then it's like you're taking a pretty lengthy detour and then trying to call about playing air the kind of thing a trial judge sitting there minding his or her own business who was the trial judge here i guess her own business is supposed to have picked up on and energy acted when the dancer your client didn't make any objection inject herself into a closing argument that happened very often so why should the judge of said oh my god that's vouching and that's not appropriate in this case and i should interrupt we are in fact the judge did interject yourself in the closing argument was mr macdonald's closing argument she was concerned about his statements given argument to the juror evidence of the jury even if we were to soon that the batching doctrine applies in civil cases where was there prejudice here the prejudice your honor is this statement only occurs one time in the government in the  closing argument and it's in bedded in in a series of statements where she's going through the evidence and pointing to other factors that would lead the jury to gleaned or to come back with a verdict in favor of the essentially a swearing contest between defendants were prison guards and mr macdonald and his inmate witnesses so credibility was key it went directly to the knowledge issue as a result the not much of a paper trail so he was relying on his witnesses credibility and anything that really added to that in this way  fielded a rule fifty motion of the very end of trial it was on punitive damages but encapsulated within that motion she concluded that there was enough evidence for reasonable jury to conclude that mr macdonald had made a claim and find out find on that fact that there was evidence in the record that reasonable jurors could have could have relied upon but i do want to switch briefly to the doctor to the point of counsel issue before i run out of time and just address two quick points the test is of course two prongs that are viewed together likelihood of success on the merits and difficulty in trial we can also look to the fact that if he'd had an attorney at trial he would have had a chance to object to the valjean when it occurred so there was you know an attorney would have made a significant change in this in this context and finally your honor is to to discuss and i would also this if you were let's say a law clerk or how would you write graft and that perhaps an opinion distinction in this case from the hundreds of other cases must have motions for time would point to the likelihood of success three different judges found that mr macdonald had sufficient merit to his claims to proceed on the path the trial judge wingard judge o'neil and judge of character i would also point to the fact that mr macdonald has a seizure condition and he had difficulty presented evidence at trial as you can see from the papers we cited in a reply brief to defend it's actually cited ten new motions in their response and none of those motions were actually granted he had significant problems and his claims a trial so i think that when you look at all those things together you can find enough here connected to a material issue in the case and in fact defendants made similar arguments that you just raised before the judge and the judge said no that goes to weight so we would say that differences in our officer works in the prison there's actually testimony from an inmate named record that when he was asked clearly the same vicinity as these guards it shows that some of the prison ministry can have some knowledge of mr obama's condition just six months before he fell didn't the judge ultimately let that document in for a limited purpose they were limited because she instructed judge of the jury that it was they can only consider it for that limited purpose prosecutor knows something more and can can and a wink and a nod to the jury is say i know stuff that you don't know and you can trust me on this on the government and are there some of the same concerns in a case where the defendant is as in this case our government officers and even if it wasn't told to the jury it wouldn't be a tough inference to believe that either the attorney is being provided by the government is from the a g s office or has been communicating with people within the government to find out about the case and might have outside information to bear on it different worlds your honor in the criminal context when law enforcement officers testify they are part of an investigation  and there appear to be disinterested witnesses to uncover the truth in the civil context the tables are turned it's the officers who are the accused they're accused of violating someone's constitutional rights and you know such a notion of a cover up is not unheard of in government well but you are in the civil context you know officers have every right and it's just as important as planes it's right to prosecute its case and the officers have a right to also defend against those charges and so they should be given wide good closing argument that tracks the jury instructions cannot possibly be in this conduct and at your three seventeen the district court instructed the jury in considering whether to believe the witness and how much we to give it the jury was asked to consider among other things the witnesses interest in the outcome of the case and any bias or prejudice the reasonableness of the witness's testimony in light of all the evidence other factors bearing on believability in her closing to the jury she told the jury that you know you look at all the evidence it's your job to decide who's telling the truth you know what she also conveys the idea that if these guys the evidence or inferences from the evidence the worst testimony that you know they're all employed by current valley state prison and never been disciplined or reprimanded for failing to calmly and inmates and housing restriction there is testimony plaintiff so that's all based on the evidence but that isn't what was said what was said is they risk their jobs they risk their livelihood was there any evidence about that well i think it's reasonable inference from the evidence that you know they're not going to risk their spotlight now is the additional statement that they're facing a loss of jobs facing perjury and i didn't see any evidence that specifically spoke to that now it may be a reference and inference the jury could draw on its own but here it was an argument being made by an attorney not figure this out for yourself it's here ya don't listen to me about this because these are possibilities that were talked about during the evidence but i'm going to talk to you about it now but you are just an don't trust their common sense in the courtroom i mean if the officer committing this kind of it's pretty obvious that this subject themselves to some kind of discipline even terminations so i think you know common sense place there but in any event i mean we are analyzing this under plain error and these lawyers you know the defendant is a churchgoing christian and he wouldn't live because it's against his religion know i don't know i mean i am i'm just sort of asking or what are the chances when is the last time a person got fired for for lying on the stand well i don't know the six by do you know that counsel they must have light at the scene they must have lied to you they must have lighted this judge they must have lied to me it must have lied to my agent and then he goes on to say i guess they're risking being prosecuted the the prosecutor also injected you know i don't believe we're going to win it i don't believe that witness is truthful and also brought up social ramifications for a guilty verdict and you compare that to the closing statement in this case and she emphasized that look based on all the evidence presented and the reasonable of the evidence was it reasonable she asked a jury you look at defense motive and compare that to the plaintiffs and i also want to emphasize that if you look at plaintiffs closing argument you know he v versus city of sonora that the plane there is standard in the civil context is similar to put stricter than the plane or standard in the criminal context and the reason is really the stakes are lower in the civil context and consequently plane errors shouldn't companies only reach the pinnacle of fall and i don't think we have that here one that's come a permanent at a time a jury verdict represents a great deal word on the part of a good many people and therefore it's a collective judgment  regarding the comment about perjury how perjury is common sense that is exactly the tact the judge trot took in his dissent and of course that since that issue was presented to the circuit and what has been it was rejected it shouldn't be revived in this context the argument about invited response of course was not raised in the brief whatsoever and as your honor suggested it seems somewhat in opposite to compare a pro se litigant statements that his witnesses are trustworthy guys to a statement by government attorneys saying there are professional and legal consequences