want to review a few of the chief events that happen below and inform the legal issues before the court first day forensic toxicologist from the montana flying lab which is where merely by looking at that residue or even by taking the next step and smoking that you have to do there's no way that you could tell that that was marijuana that's the scientist from the montana state crime lab that at some point  after by her experience smoking marijuana thousands of times that by looking at a residue she could tell that it was marijuana and then by smoking that residue she could also tell it marijuana the court as i said it jenna fired her first as a key witness then quite twice called her an expert and then in the court's finding of facts at yard two twenty six and then that this nichols was never qualify this next for witness she was proffered as a witness under rule seven a one which is the court knows since it's amended in two thousand requires three thresholds to be met in order for the at it from the perspective of the crime lab or at least based on specialized knowledge in her specialized knowledge was demonstrated by the government who made a point to inquire with mr nichols about her  non expert preg i'll just make an example entirely outside of the context of this case let's have a fishing case and the issue is whether or not the fisherman caught three  honor here the problem is we're not dealing with marijuana in its common state your green levy but i think that i think many people who have never been exposed to marijuana may be able to identify it through education they had regular marijuana we're talking about a burnt residue in the idea that someone could simply look at a pipe we've all seen pipes and say oh i can tell that the residue that in there is marijuana or tobacco or some other product that's specialized knowledge background that evidence was combined with the corroborative evidence of the landlord who smelled the marijuana in the house at the time of the social workers who observe the behavior of the eighteen month old toddler so in this case the issue is whether randy nichols and her testimony really was sufficient for the judge to find interesting of guilty reading the transcript which is what you will do just as i did he did not appear to me that her testimony was that no one could ever look at resin in a long and say that it's marijuana or that small being yet no one could ever say that it's marijuana this is again in the context of her expertise and what she knew and what she could do she was not a marijuana smoke herself and was answering those questions by her expertise and what she could that was the reading that i reading from the transcript of her testimony ms nichols clearly had all that the judge needed in terms of her background in terms of her bill of the to proceed in terms of what she herself did in her conduct in this case for the judge to find her a credible require inhalation in the view of the united states the distribution took place when the marijuana was ingested by the baby when she read but it seems to me pretty obvious that this qualifies as a small amount not distributed for money and therefore the maximum sentence there's one year to actually double the reasoning that and it would have to say that it would you would be violating it forty one a one and eight fifty nine because it doesn't say because there's an additional element that subsection d does not apply element to the crime of eight forty one in one and it's not honor it's hard to contest that because you have to district judges who actually decided the issue differently if you look at the record when i was going to the first judge decided that one way with the government's position and then actually the sentencing district judge he thought he smelled marijuana at the house so i can't the governments can tell you that you didn't use mr nichols as an expert that i was the district court that characterized her as an expert in marijuana if the government wasn't using this nichols that as an expert o two procedures the albert procedure ideally one of the benefits of expert witnesses is they don't have axes to grind in litigation they are coming there representing their expertise and merely providing  qualified under seven o two and b that's exactly the sort of bias that a gatekeeping function is supposed to preclude from ever getting to the fact finder finally with respect to the toxicologist and what her testimony was regarding the visual inspection of the is now and i'm not sure i'm pronouncing it right lisa nurses communication workers