good morning may it please the court the district court erred in excluding the expert testimony of dr kimberly mack on an expert and eye witness identification role seven o two is meant to be a rule of inclusion allowing expert testimony when it is both progs of rule seven zero two first her testimony was based upon scientific knowledge now would not this doesn't appear to be strongly contested on appeal or was it before the district court but her testimony was clear a case that doesn't control here that we why now because i thought it did it does not here because in that case there were problems with how it was presented to the district court and it's difficult to take those principles and apply them going forward because there really wasn't any proffered like we have in our case there the defense attorney all that was done was putting in the c v of dr gary wells and just more jet it was really what there wasn't any proffer like there was in this case their defense attorney just put in the c v of dr gary wells that just discussed generally articles and the general science behind eyewitness identifications here there was a very thorough by the very thorough testimony by dr maclin about the science behind i witnessed identifications and the study of it and how that is done in her scientific field under the second prong at seven o two it would have helped the jury to understand or determine a fact an issue case law more recent case law makes clear that expert testimony and i would not identify cations can be but not always based upon is based upon common reversed based on that right the only federal circuit the arizona supreme court has reversed as well let's stick circuits for a second supreme court has addressed it right that's correct thank you the fifth what did they really do do you what the fifth really did i thought of the knowledge but they don't reverse or do anything i think that's fair and i have question marks my notes on it but my recollection or my thought was maybe that was harmless air and i think this goes to blurs the question between is it harmless air or is it abuse of discretion because this testimony was admissible and i think that's where maybe some of the confusion comes from that more case out of the fifth circuit but my interpretation of it was that it decided  discretion because we can see that the district court went through this very thorough analysis and considered it and ultimately determined that it should not be admissible either under seven o two or under rule for all three we don't have this here and in fact unnecessary because mr thompson had prior experience with mr nicholas so we don't need this expert testimony in fact dr dr macklin's testimony stated that's incorrect and that is a common myth that her testimony and expertise could have dispelled for the jury that in fact when someone knows someone else it's more of a confirmatory identification and it was plus reliable than a stranger identification good you know there's a couple things going on here that the this is in some ways an emerging science right i mean because if you look at historically there was sort of a movie or videotape view of memory that in fact that what happened is memories were implanted on your brain and the is played back sort of like a videotape and if you had good recollection then that was it and if you knew somebody and if the circumstances were the kinds of things were quite memorable  then that would happen well well as science has emerged we've we've come to a new understanding of how memory works and and it's become more apparent that memory is a creative act and then what ends up happening is not so much that you replay videos in your brain as it is that your brain recalls bits pieces and flashes and then you fill in the gaps right and that's kind of the science that that was laid in and what was proffered here ok now that runs flat up against like oh about one hundred years of jurisprudence where we said hey that invades the province of the jury that we know how our memories work and therefore we should be able to do to allow the jury to decide that there nothing significant about this that really assists the jury and in fact it has the potential to confuse the jury to allow that testimony in and so we really run into here is emerging science is apparently at odds with the this is longstanding lin of cases the standard of review is abuse of discretion this is a judge who went through kind of in detail made some statements says doesn't come in under seven o two you contend that she didn't really understand the science i'm pretty sure he's going to deny that all right and then the next thing that happens you say but but even so she also gets to the four hundred series objections and she says i'm not let it in anyhow because it misleads confuses the  jury and it invades their province as well so she got all three of the the the suspenders and boot straps tossed in it now in order for you to get by on the abuse of discretion we've got to show that that you've got to show the weave that the judge abuse discretionary each one of those steps ok so would you just tell me if you're in question takes twelve hours and i'm going to ask you to answer thirty two seconds what are the what are your three best arguments as to why she's wrong in each of those points well seven martin indicated no that's not a basis for excluding expert testimony and that's something that could be dealt with in cross examination and a jury instruction that was given in this case that state's expert testimony should be considered like every other witness if there are no furthe please court i'm arguing this case on behalf of emilie nytol in our office who was the trial attorney i think it's important to keep in mind the standard of review it is abuse of discretion you know on this record it should be clear judge reed did not abuse her very broad discretion in deciding whether to admit evidence we all sort of told him told the trial court that we don't over turn a jury verdict when i was in law school that this was a really easy question if somebody put a psychologist on to talk about memory we just said go away that invades the province of the jury that's just a done deal but if you start looking at it as a science is kind of a merger you look at what courts are doing now the courts are all over the place but we're still back to the discretion of the trial judge and letting it in and the question really becomes at that point does this judge explain enough for us to say that it's no abuse of discretion or did this judge fail to explain enough so that it must be an abuse of discretion well and certainly as the court has noted the judge did give several grounds but the court can also affirm on basis of any facts in the record or any any basis in the record and i think you do need to look at the record here respectfully the record here is very strong what the defendant wants is this is this expert to say this was a confirmatory identification of the defendant there was no question that the defendant was at the party the defendant admitted he was at the party he admitted he was what he was when he was arrested he was wearing a red sweatshirt so there was no dispute about him being at the party he admitted his nickname was chocolate that's how the primary witness in this case identified him as chocolate so there's no dispute about this confirmatory identification there's nothing that the expert was going to add on that point the expert would also say that the stereotypes in the witnesses thompson's expectations might have been colored by the fact that she knew him from high school blue she knew him from high school blue she knew that he was a member of a gang called young money which she believed was associated with firearms so that's the other that's the other part of this but ultimately the expert's opinion here the expert's opinion was there is a high probability that it is possible that she misconstrued some object like a phone as a gun a high probability that it is possible that means like it's possible that it's possible that this person misconstrued an object as a gun right sounds like reasonable  well it sounds like it sounds like good to me frankly your honor like dunn no doubt it's possible that somebody misconstrued an object as a gun and the defense attorney can argue that that's certainly appropriate and cross examination effective cross examination i would argue took place here mr nathan a very accomplished defense attorney did a tremendous job in cross examination in fact he he impeached the government's main witness here miss thompson on several points she initially identified this person as having the first name of darion semi guarding from his quick here for a second well i'm saying that there were a number of there were a number of effective points on cross examination but that sounds like maybe the expert might have helped a little bit well but the jury doesn't need the expert testimony it is cumulative in effect in the cases of suggested that where there is  in particular where the witness is not the only witness on the point the fifth circuit case and more i think the court was concerned about you know is it a critical is this the only witness is expert testimony maybe critical to counter that only witness and  get that and i think you're right but i'm cut you off because here's what i wonder if this isn't really part of the analysis as well and that is what the juries know may not be what the science really supports and that's really i think part of the question here as well as that you know we believe the miss that that memory can be frail and we believe people make mistakes but some of the things that we believe that confirm it make it more likely that some memory is true turns out under the science or actually things that are more likely to make that memory untrue for example we believe that if someone is any gun in our faces that our memory is going to be really better because you're never going to forget that yet as you study the science you start to find that no actually your brain starts to really desperately want to fill in the gaps as to what's happening when you're in a life threatening situation and that sometimes it erroneous lee fills in those gaps and the question really is is that science helpful to the jury in evaluating the well moment well it may be but on this record did the court abused its discretion given the substantial evidence that is here given the admissions made by the defendant that he was present at the scene given given the fact that he admits his nickname is chocolate given the fact that there were multiple witnesses there were five witnesses and then the defense argues in their brief that there was one witness who identified the defendant that actually is the others say that it's either at the others identified clothing the others identify chloe being right and there was no other and they identified the man with the red clothing silver gun ran up the steps outside people outside say a man and red clothing came out the police chase him and there's a silver gun man in red clothing i think it's a stretch to say that they didn't sure nobody else identified him by name but that is very common bank robber comes into a bank how is he identified by clothing that's not that's not to say that witness didn't identify and they don't know his name this so there was abundant evidence here of people saying that was the guy and so in terms of what this what this possible there's a possibility strong possibility that it was possible that this person maybe it  was a cell phone or maybe it's a handgun i mean that's speculation you're basically having expert testimony to invite the jury to speculate and i dare say your honor with regard to your point about the i mean certainly the science is what it is but you know a traumatic events impression on the brain you know where was i when j f k died i could tell you exactly where i was when j f k died what i remember where was i on nine eleven and th on the top floor of the courthouse in st louis there are things a very traumatic that i would submit i could probably find an expert that would say those things are imprinted in interim mattick situations you're not going to forget that  distinction is whether you're personally in a life threatening situation or in the zone a danger that that is in fact and that's you know and it is that's a complete apples and oranges for to this case bunch saying you know what i'm saying is that lots of what we believe about have pretty mean i know where i was when j f k was assassinated i mean and i just do i could you know i could actually drive you to the place but in the end that's a different thing than if i was in the  car we're john connally was sitting and what my recollection might be at that point for perhaps maybe perhaps but i'd submit it may be able to find an expert and then what do we have got battling experts telling the jury how to view things that the court instructed on also somewhat invades the courts province to instruct the jury and really it's a bit unseemly to me frankly that you would have experts testifying perhaps competing experts testifying when the court instructs on credibility the court instruct impeachment and if the court should add another line and it's in its instruction that maybe recognizes some principle of science perhaps that's the way to go but i submit this is not based upon data it's not based upon  that's found in argues there's two prongs to seven o two there's actually four parts to seven o two in the first part is that it's there will help the jury decide i don't think it was necessary to help the jury decide in this case particularly given the facts i mean  you know the defense was on instagram photo of him in a red sweatshirt with a silver got i mean this is and the and the expert says well those facts don't make any difference if just because something is true doesn't make any difference to my theory well effects do make a difference it may not make a difference in a lab you can't replicate the circumstances in a lab these dramatic events you can you just can't make a difference in the lab to the theory but here the court is the jury is called upon to make a decision based upon the facts that they as the sole trier of facts it's in their ability and they could do that here that's all i have and thank you for your argument this quick limited however as effective as an attorney mr nathan obviously is he can't bring in yes but her identification is less reliable because she knew him that's why they needed expert testimony he can say through cross examination of miss thompson yes but based off of your prior knowledge of mr nicholas how your brain process the information and how you perceived it and stored it in your memory that could have a impacted your identification of this as a firearm so while there was cross examination it was limited by the absence of this expert testimony and then again to address the prosecutor's argument on other witnesses and they identified him in fact the two security guards identified other people as individuals with the firearm one and identified korean pursley who is the individual that mr nicholas was with while he was walking near what was where the firearm was found and those inconsistent and just quite frankly unreliable identifications that did not even identify mr nicholas are not enough to get over harmless error any abuse of discretion issues that existed by excluding this expert testimony on mr thompson's identification which was without a doubt the most damaging to the defense's case if there are no let me ask you because i bet you know is just a sort of my or the only supreme court justice has written on this issue she has a separate opinion doesn't she but i witness yes she does she does that you know where she was joined by anybody else right i don't believe to have opinion and no one else has written to your knowledge to my knowledge once to mind thank you very much a case seventeen dash thirty seven fifty is submitted for decision by the court