related to howard well in order to in order to prevail on that issue yeah you have to demonstrate you know on the evidence presented by the prosecution not that it was wonderful but that it was so bad that they couldn't even make the problem with any case that's necessary to get beyond the of the entry ruling threshold so that they put in this evidence from the officer who says kelly well he says you know i know this guy's voice i know his i know lots of things about him i can identify as a voice from my experience we are the other fellows says here's how i call them and his voice i do know who was speaking on now a jury may not believe that but that's not the question the question is could a jury conceivably believe that isn't it jury does have that opportunity to decide reliability and it's possibly conceivable that they could make that determination but i think the reliability evidence is weak if you look at the reliability evidence here you base the and more importantly in the courts words he said and more importantly the content of the cars that i view the biggest factors the continent the called is not relevant in that analysis i'll concede that it isn't relevant is relevant the continent of the post is relevant in the straightforward nine zero one analysis but when you're into the constitutional standard i don't think it's relevant and then what's standing last then is his identification of the voice and that evidence is not very strong at all i don't think it's strong enough to overcome the suggestive gene because he says the voice is distinctive he can't say in any way why it's think that other than the fact that you know what i'm saying and that's obviously not unique to howard kelly says you know a lot and also meathead on the tenses i mean you need to put the color you know it's unique the way this guy doesn't he's like one of those people who uses  saying it repeatedly you know you know what i'm saying and it's like saying minute you need to use the phrase like well you know a lot of teenagers or a lot of people use the phrase like repeatedly repeatedly and that's just not that's not something that really describes the voice it may identify as you're indicating that there is a sort of speech pattern but i actually don't think that that telling testimony on a point is very convincing at all and i certainly don't think that that you can sort of point to that as strong enough in this case to overcome what is a very very suggestive idea process again he says it's really life that as i can find when that actually happened how long after his encounters with the defendant that was so if you have this tape and you're told this is the person and then you invest two to three weeks of your life listening to those tapes that that's just a power i don't think you can overcome it because that's just a moment in your mind and gives you a commitment to this person the person i think is on these tapes is that person and then i think it's but you also have the government saying repeatedly you know all throughout the case and especially if you look at that closing argument i mean this is really the big selling point this is howard this is howard this is howard i think by this time a jury instruction i'm not sure that they can speak about the jury selection and they admit they can see that they don't have to scream or intent so that's not an issue that doesn't trigger reversal next they spoke about the attempt in the state of nevada and obviously that decision the court held that the harm with any error was harmless given the weight of the evidence and the fact that the captain could've qualify right as an expert it found that those two conditions found that it was which is the think the characteristics the state had to stink the characteristics in the tapes how we spoke about the exact how what he was wearing what happened what was the range of the nine zero one five speaks about the recording and the voice he even said to the court i don't know the man's voice i can't identify what identifying the phone number so therefore the suggest that what he told kelly that's what he told the court but what was kelly's understanding when he got the tape factors would go to reliability first of all how it jenna finds himself six times according to kelly's record number two howard speaks about meeting with kelly he talked about the text of coming and discussed discussing specifically the issue of the car number three the reliability as kelli listen to it for i guess what ninety calls over a three week period and that was within the timeframe when he had met with them kelly's personally met with howard over four times your honor from forty five minutes up to an hour and the argument that somehow the government was able to brainwash if you will the jury by saying it was howard well i would just argue with what was the government to refer to mr x i mean that's proper argument for the government to refer to due process violation happens when there is the likelihood of mistake and if we can from the front id process now i think the hardest question in this case i think it's clearly is suggestive and i'm happy to refer the court back to kelly he says i believe these are howard that are one ninety three the most troubling question though is how relevant is the content of the tapes i think because they're that's where i believe you have the division between the no one standard and the biggest factors constant is relevant under ninety one if you look at those biggest factors they go to the past of the witnesses to identify