robbery the court denied mr books written for all our objections to that only being allowed he would have to strike both before pretrial three times whether it's the court should defer to that ruling or whether it should be reviewed under a dyno of the standard and we think there are five reasons why it should be reviewed no the first is that the court when it did that held the july that it it he would have problems cross examining these witnesses and that indicates that the court itself recognizes there may be problems for the witnesses being influenced by the worst questions disclosure third is that are material differences between the witnesses pretrial statements statements right at the time right after the robbery took place that the police took where they hedge their language and their testimony of the you know the full statement that was given but rather just on cross examination to limit the questioning too didn't the detective detective parks wasn't it detective parks inform me that mr brooks arrested for robbing this bank why not just set the line of cross up that you know and see why you necessary why the cross with necessarily had to disclose the content of the confession so the problem with that europe honor is that mr brooks has a right under the confrontation clause this is a separate issue to be able to put his full theory before the court before the jury as to whether there was whether their identification was reliable and his theory would have been this that they had limited ability to see the robber he was in there for twenty seconds he was disguised of course he didn't cross examine them about that but just through the witnesses information that they should have been kept out after i'd like to move you to this issue of the waiver that the government needs its brief and specifically i'm referencing record seventy two any purpose in a criminal case are we correct to understand then that the two parties have differing views as to whether or not the fifth amendment self incrimination ruling implicates physical evidence or not meeting the government government of the defendants and they have to show that there are sources is an independent source it's usually by preponderance of the evidence i don't think the government can shoulder that burden i think that the difference is the material differences between the statements  given to police at the beginning before we before trial just after the robbery and there stands the trial show you that there's a material difference in because of that you actually have to have to think about striking that testimony now cover about in terms of this that the leaders the courts confession they use it as a reason to tell the judge that you are quite likely to perjure himself and they obtain a ruling based upon may please the court i submit that defendant is asking this court to lose the forest for the trees scott brooks was convicted of robbing the end of like a credit union because the evidence against him was struck by the jury that convicted him learn that one morning of the robbery  acquaintance i wonder what i think i should write today to mr brooks was in dire financial straits three history books his car matched the robbers vehicle and most importantly how he bateman the teller at the land of lincoln credit union recognized mr brooks the moment he walked in the door there interacted previously because mr books had an account of the land of lincoln credit union she knew his mannerisms she was going and she knew he was the rock she said as much the moment the robbery ended she said she was ninety nine percent sure kastigar says that the question is whether the evidence that issue has a wholly independent basis from the offensively inappropriate government conduct judge men below tell what the defendant in his opening brief characterized as a cast  god like hearing and then at the conclusion of that hearing were any heard from both the tellers and effective part judgment explicitly found that the identification testimony tissue had a quote truly independent basis that satisfies cassock our standard not been and i have not uncovered assertion in my research and mr chandran that point of this court to a decision where n a federal court of appeals investigated the factual finding a cast our hearing in a district court for anything other than clear that's a standard that to the extent this court is inclined to apply kastigar are that should be applied and i would draw the court's attention to the notion that mr trying to also suggest that the admission of the teller's identification testimony violated the confrontation clause but in his briefing he acknowledges that confrontation plus we outlined earlier the litany of evidence that the jury could have based its could have and did apparently basis for it on this case i am struck by the a little more broadly than you do based on your questioning i think that wilson pretty clearly states that the loose rule applies to constitutional claims and i don't disagree with them and i think that's for good reason i think it's worth remember mining ourselves of the concerns that animated the imposition of the loose rule in the first instance right we have no way of knowing for example why the defendant didn't actually take the stand it might have been because of judge names conditional pretrial ruling regarding the use of the subject in might very well lost then because the defendant knew that he was likely to be impeached with his felony conviction it might very well have been because the defendant decided that he didn't have a good answer if government counsel cross examine him regarding his financial difficulties with a text message and it's disgusting again a record seventy two you know that the court is there's a there's a final discussion of the state of play if my memory serves but that's correct that the identification issues were queued up prior to the whether the government would have actually proceeded to impeach the defendant with the objective evidence that was discussed at that pretrial hearing as the court explain again it loosened olor government counsel might have seen after the clues of its case in chief that the evidence came in cleanly the jury understood the story they were trying to tell and that discretion was the better part of valor they might have very well decided that it would at best and more prudent to keep their powder dry not present that objective evidence that found on the stand and thereby avoided injecting  the stand that pretrial ruling has no effect and your honors this is a far cry from even the causal standard that's outlined and will soon be williams judge member low didn't say mr brooks if you take the stand you are liable to be impeached with this objective evidence in such and such a said was to the extent the government intends to proceed with this cross examination to the extent the government tends to utilize the subjective evidence should mr brooks take the stand it first needs to preview to me the of it you know we're going to have to work out at trial if and when we get there but i think what i'm concerned about is that the defendant sitting there hearing that would have thought there is going to be some impeachment on the fruits issue extent that concern did animate the defendant's decision to not take a stand in this case he was free to highlight that issue again during his colloquy with judge ma'am at the conclusion of the government's case in chief as we were counted in our brief judgment went through the routine  ultimately the defendant has made a litany of constitutional arguments and i suggest that the court should resist as in the case under this ticket i think that his first two arguments regarding the objective evidence can be rejected because they were waived and i think that his third coerced confessions because it doesn't need to decide that because even under the cast of our standard judgments finding that the benefit cations were truly independent controls it satisfies classes are reviewed for clear air and it pursu is the southern district of new york and then the law just in the twenty seven thousand decision from the second circuit where in the second circuit so the analogous position of the what i'm advocating now it declines to announce in the first instance whether or not casting our strong medicine should be applied to the presson from the one nine hundred seventy s and we don't have a case on point applying to the context of course confessions after a great many years i think it's telling that that precedent doesn't exist i think that that absence should counsel prudence and i think the court should take the path of least resistance when it is confronted with these novel constitutional claims of the defendants making thank you