that these are these are the types of things that can lead to an on written on reliable identification for example the fact that a gun is present but she went through all of these and then she catalogued all the things that were present in this case but my question to you is is just learn more really invision or even rule seven o four that in and i den of a haitian case where one witness is going to be there after four in a way that you agree it is that ever been interpreted is not and there are a number of cases that have always drawn the line about one witness testifying and i know your position is she wasn't going to opine about the credibility but but also reason for it the whole issue of identification and how we deal with them is all about yes i speak from personal experience that i raise this in two thousand for a murder case and twenty six can go through with you lately but the i think that you're asking us to go a little further than what is in vision and let's talk about seventy four again traditionally an expert can opine about the ultimate issue but we see that in medical cases in legal malpractise and medical negligence where one doctor gives an opinion that another doctor did not follow the standard here but i'm not sure that i understand your point go back to the armor problem of right so the court tells us that our standard view with regards to this type of testimony is abuse of discretion right and the court basically says that you have to look at whether or not there was a failure to volatile situation with this identification test judge gone i thought it as much as he thought he was going to let happen she was going to testify to all of these things that lead to an unreliable decide whether the facts for the court and then this court gets to do it you know review one thing that got i think to comment on that motion to suppress and and  and he was able to enlist two well there were two younger individuals i guess in the station one was seventeen nineteen and the defendant here was sixty right so there they were all within the same  race is to identify the suspect initially so that you can rule out certain people and then with a lineup the other the other one of the purposes is to ensure that if if the suspect can't be identified that he be release good morning again your honour's first off in regards to counsel's assertion that this is unchartered territory we would disagree it is true that lerma didn't specifically address the question of the scope of the expert identification testimony but it didn't need to because prior to learn much in people versus back or in two thousand and ten the only supreme court reiterated a longstanding rule that while an expert can testify to the ultimate issue comment i'm credibility it's a comment on whether or not the circumstances are such it would lead to an unreliable i can give you no credibility is one thing mistaken the mistake and i think it's a little bit different isn't it slightly  it's it that the expert to be allowed to stay with not in his or her opinion the identification was on reliable based on these facts and your honor and that's and i believe that's exactly what the expert was allowed to testify to and did she listed all the factors which she in her experience and her expertise says that an identification is that reliable and shouldn't be considered as frustrating she went through all those the only time that she was precluded from testifying this appears on pages five twenty two and five twenty three of the record the only time is when she express lee said mr vargas identification is unreliable when she directly said that his testimony after testify to the ultimate issue is the defendant guilty is the is the doctor liable although since but he's not allowed she's not allowed to testify about another witness's credibility can't say that her testimony should be disbelieved or h be is the defendant guilty now that is or is an identification under the circumstances reliable now is this witness testimony credible should be and that's the distinction that the law has always recognized and it's we're is some corroborating evidence regarding the the other defendant the other offender but even with that what we have is mr vargas this clear testimony as to how the defendant pedro correll was they're going to engage in the purchase of the marijuana i think he says five or six is my record for review for but it's not uncommon for a witness to not remember the exact number of shots and i believe he says that everything happens within a matter of seconds in that he's trying to run up to the back of the basement and try to go around the victim is having presence of the door and getting shot back but everything is happening very fast he may not have heard all the shots or he may not have remembered the number of shots but absolutely he does testify categorically that he case do you agree it's fars the motion to suppress identification that this standard is exactly the same for our purposes a preview or is there something slightly from the bottom of this press statements the burden of proof who has the burden in each instance what is your take on it middle in our brief we do identify the same standard as what the current emotional suppressive there's the manifest wait for the factual conclusions by the courts and then there is th the hearing on the motion would be binding have this court in the absence of showing that there gets rid of sway in the special findings were very important because one of the things the judge made at the hearing was that the ability to get the requisite number of fillers under the chicago police department directive for the lineup was impossible but the the detectives were doing the best they could they had to find young hispanic males of a certain way to a certain height within  planning he's going to also be in atlanta busy yes it's the one i'm not sure i understand is the sort of my recollection and i apologise i haven't read the statute recently but my recollection is that there is something in there about in order to ensure that there isn't a bias or in permissible suggestiveness that the police should do their best to ensure that the the person does not appear in the lineup in the same position that he appears except that but that's not what happened here anyway because in the photo array that was presented to the victim as i said we had five photos but it was three across the top with two underneath it the defendant was in the fourth photo but he was on the left and the second row whereas in the live line up the reform people in the room he was the standard is nat has every single step been taken it's is the line of identification is the identification procedure unnecessarily suggestive and what it is is a to tell you the circumstances test have the police and gave in a manner of procedure which would create a suggestive procedure unnecessarily so that it is the same thing that we use whether it's a show up a photo array or a line in the statute says that if the procedures aren't complied with you don't automatically suppress the identification instead there's a determination whether or not the suggest whether or not the identification itself has been tainted by the failure to  yes that's it we could prove both it was not unduly suggestive or we could prove that there is an independent basis for it to allow for you and so the the the legislature did impose new requirements with directions to ensure defense attorney brought up the statute the response was judge it didn't apply at the time of the judge says i know it didn't apply not going to hold them to a standard that that wasn't what will to them and what the judge found was that the detectives did their very best to find appropriate fillers to make it to allow for a proper investigate it into a dedication procedure and he said that the accident good faith they did appropriate the individuals that they found were well within the concept of similar nature in that sense  they were all within three years of age other than the law enforcement officer but they were all of generally similar height and weight it was it was appropriate identification procedure under the circumstances it was necessary and so therefore he found that mr vargas identification from the lineup and photo array were were probably admissible and then in trial mr vargas specifically identified the defendant and yes i understand that counsel is now running no no no he must have identified somebody else in the courtroom but the record doesn't bear that out what the record shows my understanding is when he was asked to make an identification he says somewhere out there because he didn't know where to go and that's immediately w nobody ever said wait a minute your honor he just identified somebody else and it is you know this was a very hard fought for a while with excellent attorneys on both sides the judge was very very cognizant about what was going on throughout the trial and putting several times pointing out to people in the gallery please stop talking no one ever said wait a minute this witness just identified somebody in the gallery and i have seen records in the past where that does occur but it didn't happen here and if nobody said it i find it hard to believe that frequently lately in the corner between the bench and where the defense table sits is where he would keep the the large screen for showing videos or pictures and so it's it gets brought into the well the courtroom or pushed back as need be in so it seemed to be that where the jerk where the witness is sitting here in the defense table is over here there's the screen is seemingly in the way but again so in the light most of a prosecution we have argus is happens immediately the jury heard all the jury heard all of the challenges by the defense as to why they shouldn't believe the other because that wasn't enough time because it wasn't reliable because he was focused on the weapon because he didn't see the actual shooting and not that i know of and i would be surprised if they would just the chicago police were much more concerned about solving a murder so they weren't going to necessarily bring charges against somebody for what would probably be the time of class for cannabis case maybe even just an  years but the fact is that when i did a vacation is the only evidence against an individual was the buck to be deprived of his liberty this kind of testimony this kind of opinion