supreme court rule or thirty one pm the duty upon the trial court judges to ask attentional jurors where the whether they both understand and accept or fundamental principles of criminal law their principles but here the trial court judge asked only if the instructing jury because and the concern the defense attorneys would merely sit on their hands and allow errors like this to occur hoping to letter to later get a benefit on appeal would be fanciful and here it does percentages to apply to define reasonable doubt defense counsel affirmatively told the court couldn't give a definition and the trial court agreed and that was the instruction given to the jury but then when he got up to the appellate court downs argued that the answer erroneous lead to find reasonable doubt because it didn't tell the jury to disregard the percentages now that's dance is clearly a case of wave downs created but the illinois supreme court addressed this is a substantial defect in criminal jury instructions which are not waived by failure to make timely objections if the interest of justice require their point there dressed under supreme court rule or fifty one c and the court and seventy is found that is their violation is it impacts the manner in which a jury is instructed to evaluate the evidence therefore this issue of deficient their ammunition even if it is way can be addressed by this court under rule or fifty one c as an instructional  correct grave errors and errors that are so factually close the fundamental fairness requires it be properly instructed in the supreme court went on to say that for fifty one c is coextensive with the plain error clause of six fifteen a limitation on the parties ability to raise an issue not on the sports ability to consider it and yesterday i was trying to think of situations that are similar to this and it's very difficult what we have here is a supreme court rule a mandate for ho question and instruct the jury and we have a mandate that's within the trial courts control and i was trying to think of other situations and i came up with a couple that are in the trial for control they can still be influenced somewhat by defense court does apply the closely balance from the plane air test i do believe that what we have here are the kind of closely balanced facts that sebi talks about and in seventy they talk about how the closeness of the facts alone are going to establish the prejudice here what we're looking at here but the critical factual question is is whether cody was justified in his use of force at the very moment of the shooting and the evidence in that regard is closely balanced where there are two opposing versions of events with no extensi evidence presented to corroborate or contradict either version then we've got you credible versions of the facts in closely balanced evidence and what we have here is cody and his brother testifying consistently they testify that walton threatened them he threatened to have porch he told cody he'd better kill him or he was going to go get his cut his gun from his car and return and kill them all now we know from the entire record the walton didn't have a car with him so she was that might look and reasonable that if you're that you know are that this guy shows up you're in the house you're sponsible for these kids the presence of passed out you don't know these teenage girls no one's going to come and take the boys out of the situation even though they've been calling and threatens the boy and once he was outside again he told the boys he would get a gun from his heart kill them cody's actions that night have to be seen in light of the facts that he knew that were in his own mind the only the testimony of the three teenage girls to tell us what happened during the altercation the girls to consistently say they didn't see walton's threaten or injure cody and that cody was not defending himself or david and the girl's testimony is very contradictory and their actions in locations they all three seem to be kind of putting themselves in the middle of it and you can't you really can't make all of that reconcile however they're very consistent on the issue of who was the aggressor so their testimony is also possible and credible under sabby so what we have here are two sets of balance families and under savvy once we have clear air which the state has not argued that the procedure here is air if you do choose to addresses under plane air your honor i would like for you to consider these facts and especially i mean to me and i know that said he doesn't require a finding of prejudice but what we have here is we have a close case where a jury was not properly instructed and one of things i love about seventy is they talk about the scales of justice and there's errors in giving juror giving jurors evidence it's going to tip the scales back and forth but this is really telling the jurors how to balance the scales how to put those facts together the cody does not have to put on evidence that cody does not have to present more evidence and the state has to present enough evidence to get those scales up of course those are as to the instructions i want to presuming it wasn't an issue in this case so i haven't seen the record in a while but i'm presuming that the jury got the requisite expressly agrees to an error at trial and say well he didn't really know well you're right but here's the problem the supreme court has made it clear don't be doing it this way trial judge and then you would have to ask for acquiescence from the suit from defense counsel with regard to your improper questioning and they have the highest authority in the state they said it's improper there were three strong the for the reasons you argue how do we get to stop it as far i mean i think this judge was even trying to cover all the bases by asking this question and still he used the wrong well there's a wonderful lot of like instruction which as you know guarantees pretty much guarantees you're not going to be found in or if you find follow it in just go ahead and do it otherwise why why would you even think such a thing should just hold off the shelf and use it and here supreme court has been concerned about these admonitions abroad here for a long time i mean these are cases a long time always there was a long time ago i feel like that it has been an evolving body whereas substantial versus strict compliance has been concerning as part of the case law it's clear now that this exact wording do you disagree that's been held to be insufficient for strict compliance with the rule for thirty one b i think sooner rather than later is going to make my job a lot easier sooner rather than later the the  analyze this under plainer of course belknap and sebi both say the only prong available is the closely balanced evidence wrong here if there was any closely balanced evidence it was in the debate whether this was first degree murder second degree murder clearly even by diff in defendant's account i'm guessing we're debating whether his belief was reasonable but at the time of the killing you believe the circumstance would be such that if they existed would justify the killing even by  brother's account there was no imminent danger here there was no effort there was never a debate this guy had a gun this was two on one in a fight there was even if defendant did believe this who was among reasonable belief of course the state's witnesses described a fat on account of basically first degree murder and although that it would support first three murders also supports the unreasonable is in the belief that if in a had this feeling was justified also we look definitive behavior directly after the shooting he instantly ran away and hid in a garage if you believe this was self defense believe this was justified presumably you would have stuck around and told the story directly after he was arrested he was interviewed for over an hour never says the wal threatened them or anything like that this was overwhelming evidence and clearly not as close as needed under this plane air prong of seventy seven involved multiple credible witnesses on both accounts and  a direct element of the actual crime here different it was convicted a lesser charge so it's hard to argue that there was close evidence as to the second degree murder charge and plaine i would just note your honor when you say how do we get the trial judges to stop this this was spring of two thousand and fifteen the courts are go back and forth for a while about substantial compliance for compliance wilmington is two thousand and thirteen they'll just took a very long time to put teeth and so and the problem is with the gang disagreed does it say it better is it to say it faster but when you ask them just it does if you disagreed it leaves out that element of do you understand it's and there's that there's some fascinating language and savvy about is it almost insulting to ask the jury do you understand this but then once you get through a trial much she gives the jury instructions and question start coming back from the jury you recognize that concepts that we think are easily understood should be easily understood aren't concepts that everyday people who end up serving on a jury worry about puzzle over in their daily life and so asking them these very specific things also gives them an opportunity if they're confused if they have questions to raise them early on with the judge and it's that struck compliance that question and answer giving them both opportunities that is wired and i just liked to address again the issue of closely balanced evidence that my client somehow getting second degree instead of first degree that's all he should  were reasonable and his fear there was justified and reasonable his reaction wasn't an overreaction so when we're talking again about whether or not he felt imminent danger when he's on the porch  again we know the facts because we've had the entire record we've heard everybody talking and we've had a chance to put the record together and say in a fax from that but if you're cody mcguire you're in the nowhere in a home you've never been in before in a community you're not familiar with you don't have to wait and when this man is saying that he has a gun in his car and he's going to come right back and kill you and shoot up tell you and your brother he's already threatened to have his brothers come and shoot up the house eminent danger can you get the police there in time there's three you know there's three girls in that house and his little cousins junaid cousins are both passed out so i think that when you look at this in terms of what he's what he was thinking i do believe that the evidence of what