bollard issue it's a matter of discretion now there is no police law in massachusetts at the scribes what the discretion of the judge is company does is supposed to decide and his or her discretion what for sure so it is true that it is a discretionary and struction in massachusetts with no guidance as to when discretion should be used or not used but whatever massachusetts position is because an identification instruction or a alibi instruction both of which massachusetts requires those things go to who is the perpetrator and that's wh so i agree your honor those are two separate issues unless the constitution requires an instruction on a topic that's a quote unquote recognize the facts so i wondered matthews this is a instruction for identification they require the instruction for alibi and this is the exact same theory which is i've got a basis for claiming and arguing to the jury and the jury under message to supply has a basis for concluding that my guy is not the perpetrator because of the nature of the police investigation it was a chance to talk about some of  should so i would like to contrast this one with my consciousness of guilt argument now here the s j c feels that it's totally appropriate to give to pick out one piece of evidence in a case of the fact that he may have misstated something to the police during his initial interview and to inform the jury that on that evidence by itself by itself they should not convict alone should not be sufficient to convict they should come the record for some other tidbit because with another tidbit that is sufficient to convict so i'm back to bow to the theory is no justification for not giving a boat an instruction and i think that the u s a c knows there's no justification because they lay out no rule no test to apply when when it should be given in  shouldn't be given how to exercise your discretion and in my case itself they say yeah that was the main defense i'm just curious are sick of this the choice of the prosecution to focus on no testimony that there was the sort of personal interaction between a single justice of the r c c and rather vicious as the estrus equally recognized was wrong for the prosecutor to suggest that there was when there was no record support for that but of course second the prosecutor's baseliner gist of his message was that the order immunity required the witness to come in and testify truthfully the question being have federal courts have that that kind of baseline personalized form it was not in that personalized form she expressed they said that the prosecutors personalized version of immunity was wrong and then she went on to explain correctly we're going to guess to see the immunity process under state law so given  and then finally on the issue of the view the judge took the appropriate and cautious step here that discourse and has endorsed the supreme court's indoors of calling all the jurors in council was present when counsel asked the judge to ask another follow up question to the jury the judge asked another follow up question to the juror and after she went through this entire process the judge found that the jurors remained in different position hasn't come forward with anything to rebut that no clear and convincing evidence or about those in one of the cases had to be disqualified for cause because of the publicity reporters had overtaken the courtroom jurors were allowed to make telephone calls during deliberations this case does not approach that this case was an instance of inexperience influence reaching the jury