second it was reversible error to instruct the jury that mr peterson could only recover if you can identify which specific defendant broke his arm and finally the district court made two flawed evidence yearly rulings at trial that admitted propensity evidence while excluding key testimony from m peterson's only witnesses your honour's in this case mr peterson had his arm broken by five correctional officers and was immediately placed in solitary confinement where he remained for two weeks before he received adequate medical treatment the guards admit to breaking his arm but claim the mr peterson had a knife and yet no video evidence has ever surface to show mr peterson with a knife in a video that was recorded immediately after the use of force as per prison policy the guards narrated on four occasions the events that led to the use of force and never once mentioned the presence of a knife in addition your honour's the correctional officers offered conflicting testimony at trial relating to when the alleged knife was discovered on mr peters and that of these matters are about about that for a second the video was played ri if the video doesn't reflect the officers mentioning a knife then turning to your evidentiary issue about the district court not allowing certain witnesses to testify about what was not said concerning a knife how do you show prejudice your honor the central issue in the underlying trial was the presence of a knife or the lack there of the entire case hinged on whether there was a knife in this case mr peterson attempted to elicit testimony from his only witnesses regarding whether the guards mentioned the presence of a knife while they were using force against him this was not wasn't the question of the question was did you hear anybody before during or after the incident mentioned i and i'm curious what the pro to value of that broad question you don't want that was a broad question in mr peterson did attempt to sharpen the question when he spoke to the judge sidebar and said judge the testimony i'm attempting to elicit is whether the inmates heard the guard say he's got a knife he's got a knife this was far more probative than the testimony that the guards or rather that the witnesses were able to provide when the judge allowed him to rephrase this question which was simply do you recall and me having a knife on the day of the incident this was key testimony because it was probative of whether mr peterson had a knife and whether the guards had mentioned anything at trial didn't the judge say if you was far more probative to introduce evidence that the guards themselves never mention the knife a reaction that you would certainly expect a correctional officer to have had an inmate charged out of a cell with a knife as was alleged in this case and while allowing his witnesses so what basis for that same and the are the guards were expected to make that statement during the during the incident and it could have and i can see the other side if they had mention oh he's got a knife then the defendant i wanted to  against him about a knife this was a reaction again that he would have expected the prison guards to have had he charged out of his cell with a knife he believe that this was probative to the point of whether he had a knife which was again the dispositive but there were a couple of other issues your honor that equally important in this case i'll go to the other evidence here and that was that the district court admitted propensity evidence in this case they admitted three disciplinary ports that mr peterson received on prior occasions for the possession rather for having a prison shank in his cell the defense attempted to a list of the seven sorts you admit this evidence under rule for a for be the judge denied this but then instructed the defendant's without them requesting that they could use these reports to impeach mr peterson's testimony if they wish to recall them to the witness stand as a witness on cross examination however your honor these reports were not admissible because the only possible grounds under which they could have been admitted was rule six b which is a very narrow exception that allows to be introduced if it is probative of a witness's character for truthfulness in this case or whether mr peterson had knives in his cell on prior occasions and received discipline airport but it was a discretionary call co yesterday it was you have to  examined him about the knife when he brings it up in the first place yes you're right but it is telling that telling the jury that he wouldn't have had a knife it's important to draw the distinction mr peterson did not challenge the admission of a disciplinary point that he received on the day of the incident he challenged the admission of three prior disciplinary ports i understand that but but they're cross examining him about his intent whether or not he would he is the sort of person that would have a knife was let me let me ask you a procedural question that maybe gets to part of what judge cho flood is trying to ask you mr peterson testified in his own case in chief at the beginning of trial right yes he was cross examined by the defendant at that point at that point he was not asked about the prior disciplinary report as accurate as correct  when did he get recalled back in the defense case it was the very last thing that happened before the jury was charged so i mean one possible hardiman is that you can't call a witness simply to impeach him if that's the only purpose for calling him and you've had your shot to impeach him then you may not be appropriate but you still have to get over the abuse of discretion standard yes your honor and that point is well taken and unfortunate that was not that we took in our brief however i would again point to the fact that this was an abuse of discretion because there is no legal standard or rule of evidence that admitted these the judge denied them under rule for a forby which goes to the intent and plan as judge joe f pretty soon so could you address the district court so called vicarious liability instruction yes i'd be happy to in this case the judge instructed the jury on the standard a vicarious liability and inform them that they could on aware of which foot struck the blow the brokers on the judge recognize from the defendant's mood for a judgment as a matter of law that it was quote insane to expect mr peterson to point to which specific defendant broca's not however later in trial the judge reverse himself and told the defendants i'm going to give the vicarious liability instruction this instruction read in part liability cannot be imposed on a defendant whose actions were not the proximate cause of any alleged injury this language is important because it did not say a proximate cause or one of multiple proximate cause but the sole proximate cause of an injury this was a misstatement of the law and was misleading to the jury because mr peterson did not suit the guards in an individual capacity or under the theory of responding superior mr peterson sue the prison guards as joint toward freezers for acting in concert to break his off this jury instruction for close mr peterson from holding them liable for acting together causing one indivisible injury how do you futility exception to rule fifty one which permits an individual rather which excuses an individual from failing to object to a jury instruction if the basis for that objection is already known to the court and the objection would be futile in this case your honor again we would point back to the judge's own statements at the when the defendant's move for a matter of law when he called this concept this exact theory of recovery quote insane the judge was aware of the problem with this jury instruction and thus mr peterson was excused from renewing his objection because it would have been been adequately able to convince the jury with a fair and impartial opportunity that he had the right to recover he was prejudiced by this and that  about let's talk about the questions about any observations concerning a knife yes your honor and put aside for now the issue of prejudice and put was that no one heard anybody say anything about a knife how is that hearsay your honor because the form of the question was not asked to say was there silence even assuming that silence you don't have to ask it that way if the question if the answer to the question was nobody said anything how could that be a hearsay answer what's the statement this statement as as appellant say is that one might expect there to be some statement regarding sure this sort of that's why it's probative but it doesn't say why it's hearsay tell me why that's hearsay because the silence is in fact a statement as it is implicitly a statement perhaps that there is no knife limited probative value we would argue but it is a statement in criminal cases all the time assuming miranda warnings are duly administered the government gets to ask a defendant who takes the stand why didn't you tell the police this why did you stay silent about that there are no hearsay issues with that sort of a question assuming there aren't any constitutional problems with the question itself during interrogation why is there a difference here honor are you asking about this if they're asking it defending my choice to state individuals who testify or sometimes asked why their position at trial wasn't mentioned at an earlier point in time someone who is accused of drug trafficking might say i was coerced into doing this and my family was threatened and if that person was administered miranda warnings upon arrest then the prosecutor can certainly ask that defendant who takes the stand why didn't you tell the police about that why did you remain silent why did you say nothing that's not a hearsay statement why is it a he y statement for mr peterson to ask about silence in this scenario your honor it's our position that in this case it was in fact it would be it was taken as as a statement that there was no knife and i know i mansur in your quit your question your honor about you know we would argue from a from a harmless error standpoint that ultimately all of these questions survive of discretion regarding evidence and more importantly ultimately as as an appellate court reviewing this case there was no ultimate deprivation of mr peterson step substantial right to a fair trial as to the specific hearsay issues regarding the existence of a knife he was able to elicit the same information from two of his witnesses mr new kirk and mr bowen and they were in the defendant's it's a lot different when you have witnesses who might be biased in your favor and whom you're calling for a specific reason the have them say that than to have the people who are being accused of using excessive force to say the same thing though those might have a little bit of a different impact on a jury but you've answered my question i thank you for doing that thank you and to that point but let me shift to the to the other evidentially issue and that is the the prior instance of possessing a knife what was the evidence or a basis for the admission of that testimony because the judge reversed himself on the four for b admission and said it's only admissible as impeachment what was the impeachment  record does not state the expressed basis on the same pietschmann it does not say which particular world evidence but our position is that because neither is in the prison environment are in fact contraband so there would be an element of as as we said it in our briefs that he had placed the existence of him having access to a knife generally at at issue and he had said that he didn't have a knife in this case and so the and the nature of a prison that this would've implicitly the jury could have found that that meant he never had knives and this would have been an instance when he did it to disprove his testimony that he didn't he didn't he didn't prince of saudi never had a knife before and i didn't have one of medication which would allow for him going to be impeached by and prior inconsistent statement or are showing that he that was false but where where was it that he said something or d something that would allow the an impeachment rather than for truth from us you've had not just before air go chances are very good that you had a knife this time your honor it was our position that based on the existence of prison rules and regulations regarding the knife possession that it should have come in in the first place under four four b and but it did come in as as impeachment evidence but it in this instance in this case based on the record as a whole event that we believe it survives an abuse of discretion standard but nonetheless he was not deprived of a substantial right to a fair trial there was ample evidence in the record to support the jury's verdict and perhaps more importantly from determining whether or not he had a fair trial he had a full and fair opportunity to present his case the jury made its decision and that jury decision should not be  there was an abuse of discretion that was harmful or as opposed to not harmful or your honor his possession or non possession of a knife was very relevant to the case that that's true your honor but regret regarding the harmful this or harmlessness it's important to remember as judge jordan it mentioned that the distance of the video and in fact the last thing the jury heard was not this testimony which it wasn't the disciplinary reports in the case but it was in fact the video the video which was brought in by the appellant was the last thing that the jury saw and not only did they see it as the last piece of evidence before they want to deliberations but they the record reflects that they brought it into deliberations with them so they saw it twice mr peterson also testified on his own behalf he presented five witnesses two of whom world to meet lee able to testify about the absence of a knife he cross examined the a pelleas including regarding two of the witnesses about the weapons issue he also cross examined mr thompson who was a witness that the police had brought in to impugn the implicitly the credibility of the four of the five eyewitnesses for appellant who had testified that they were in cells other than where they were assigned to i know this is not an issue that you had anything to do with but it's on appeal so i'll give you a chance to respond to it given all the conversations we're having about these issues isn't this a case where it might have been a good use of the district judge's discretion to appoint counsel for mr peterson your honor no because the decision would have been made prospect of lee th standard under kill go is whether or not the opponent was in a position to present the essential merits of his claim and that is almost exactly the finding that he made in his order to ninety a consul in the record it taps sixty five prior to trial the appellant had already soft discovery filed a motion to compel obtain the court assistance in locating two of the ap police that had difficulty locating well let's talk about that for a second the district court i think generously issued a subpoena to a witness and the subpoena was returned in a way that the witness was going to show up the day after the trial ended wouldn't a lawyer have  to make sure that that didn't happen perhaps your honor but as the court is the case is law recognize in bass both i think cited by both of both parties of course an attorney might have helped but that's not the standard did the judge abuse his discretion in deciding before the trial if he would if it appeared that he would be able to present the essential merits of his claim and answer that particular witness after snaky he came on to the scene after the incident in question so he would not have been able to testify to the precise incident in question it would have been largely duplicative of the video that is narrated by officer haskins another corrections officer who then that was the last thing that the jury had before them officer have to has been stabbed as he's escorting mr peterson away from the incident repeating lee repeatedly his description of the events as he understood them and not mentioning the existence of a knife the appellant had his his chance to present his side of the story he had a fair trial perhaps not a perfect one but that was not the standard and that's why this jury's verdict and this trial court's judgment was fair and should be affirmed let's talk about the jury instruction yes your honor ordered the jury instruction come from element of any claim yes in others that doesn't tell you how to get there you can have a conspiracy right you can have a one nine hundred three conspiracy you can have aiding and abetting liability in some rare circumstances or new under ninety three you can have joint action in concert under nine hundred eighty three so where do you get this jury instruction that says that an individual has to be  not a but the proximate cause of injury your honor that in substance is very similar to the pattern jury instruction on causation which is right in the eleventh circuit pattern jury instructions which was also given to the jury and the basis for both of these would be the cite their case which is directly in the commentary and regarding this instruction not only was it reflective of the law it's reflective of the particular evidence in this case you know mr peterson to raise any of these issues but obviously but even looking at these things in a vacuum the evidence showed that mr peterson testified that at least four or five people stomped or kicked on him he was not arguing some sort of aiding and abetting type of flight well let's let's talk about what the district judge initially thought about your theory your the district judge initially said it was  i think your colleague quoted him correctly he said it was quote insane unquote to to believe that if someone was being held down in a way that he or she couldn't see what was happening was being beaten by two or three or four people and couldn't identify the single blow that broke his arm that he or she could not impose liability why was the district judge wrong in his initial characterization of your position your honor i see my time is up but if i could answer your question i would appreciate it thank you your honor the answer to that is twofold first that when he made that when the trial court made that statement it was with respect to a directed verdict motion there as a as i just as the rift record reflects there was enough evidence to get this issue to a jury a directed verdict doesn't say that this is it went to the jury they made their decision and  second that it was specifically a pleasurable because that was not missed is that the evidence showed multiple possible outcomes for example officer blanton had testified that grow all this is going on he just went and protected the keys and essential he stayed out of the incident regardless of the level of force used it would have been unfair to punish him for any misconduct that the jury might have found for the defendants the jury ultimately had sufficient evidence before them to have a fair and impartial decision and they made their decision he may not have had a perfect trial but he had a fair one and therefore the jury's verdict and the prison guard vicariously liable for the acts of a correctional officer that was not the theory of mr peterson's case and thus relying on that case as a basis for this jury instruction was improper whose through each of the defendants acted and it's case show very clearly that mr peterson was alleging that the guards acted jointly and well i don't recall seeing that allegation in the complaint maybe i missed it but i didn't see that you are all mr peterson they all attacked him mr peterson's theory liability is that five prison guards acted in concert to cause one indivisible injury the breaking of his arm this was this theory inmate while he may not have used the proper terminology in framing this claim the facts of this case clearly when themselves to that jury instruction your honor it would also like to briefly point to the defendant's claim that mr peterson quote ably represented himself at trial the fact that i read this record twice that i think i think you did a commendable job he cross examined all the witnesses at peterson attempted to plead a delayed medical care claim because you sat in solitary confinement for two weeks with a broken arm before it was treated or you're talking about another matter altogether the medical bauder i'm talking about they'll solve your honor and in direct response to the assault there was conflicting testimony presented by the prison guards themselves regarding the knife mr peterson was not able to cross examine the witnesses effectively to bring that to the jury's attention your honor there was also a number of pieces of evidence that mr peterson sought to obtain including videotapes from within the cell block that mr peterson believed would have shown that he never had a knife he requested these they were not turned over he filed a motion they just it's unclear on if he thinks he thinks that we don't know preacher yes your honor and mr peterson filed a motion to compel discovery to obtain those tapes and the judge denied it seven months later claiming that mr peterson filed it too early for some and too late for others in this case that would have been incredibly productive evidence that mr peterson did not have a knife how do you obtain the video evidence that he believed would exonerate him your honour's given these facts had counsel been appointed to mr peterson he would have been able to secure evidence or if not obtain a spoliation sanction or an adverse inference for the jury to understand why that evidence was so important i think we have your go thank your inspiration it they're taking it has to versus city of atlanta