it criminal defendant i understand this point is obvious but i'm highlighting this fact because i don't believe that it was obvious at the district court level in this court well knows the constitution requires that a criminal defendant be given a meaningful opportunity to present it complete defen counsel holds it's a fundamental right to present witnesses in the defendant's defense this court recently so i did this united states report on a evidence seemed to be of two types the policies and procedures of the chicago police to form the use of force and secondarily whether brown's use of force was fine on the ultimate question so what else could pharrell or ferals testimony was not limited to the subjects that that were cited by you with all due i would say that thompson does not does not necessarily say that in when i say that the government did a very good job of cherry picking language out of thompson and using that as a basis in certainly use that as well but there are important distinctions first of all counsel is a civil case it's a nine hundred eighty three case which the analysis for alba brown throughout the trial was really based upon an one thousand nine hundred three case because that's quite frankly what the census but the thompson case that cases actually supportive of our issue before the inclusion of john us testimony the thompson case the civil case the one nine hundred eighty three case where the defendant police officer faced the the most serious sanction that he would receive some type of a monetary penalty which  discharge in bankruptcy in our case where we have an individual like yellow brown who is undisputed out herbal dedicated police officer that was doing his job and that day here it's undisputed elbel brown was doing his job responding to the scene taking actions none of that is in dispute so the point is in this case it is critical chicago police department training academy sergeant campbell to come in in provide testimony about the use of force policy exactly what john farrell was going to provide testimony about what thompson did and what the government has relied upon somewhat out of context thompson said well they wanted to call this agent from the office of professional standards jim investigator who is going to talk about the general orders and that's what the court focused on the court focused on in this case they said that sergeant campbell answer who was the force would have been reasonable in a situation exactly the same as the issue here that's what we wanted john farrell to do exactly what you do the court in thompson said that text of the recently they talked about the testimony being ubiquitous in the trial regarding c p policies in our case we had we had nobody to talk about how l brown's actions were consistent with how the c with training and with the nationally recognized address inconsistency between mr brown statements and the video itself because there were not any inconsistency in his part is on incidences that's an observation you think it's inappropriate it was made by the district vast amount of resources that the utilized towards this case they did if you're brain jury subpoenas for various witnesses to suggest that john farrell should've gone out and interviewed people that were at the grand jury i believe shifts the burden a little bit well no i just to buttress the the way that would be necessary for admissibility of of an opinion wouldn't it have to be based on as broad a factual observation  interview these witnesses i don't think the government would have been too happy about that there probably would have been issues there which the court recognizes but john farrell knew what what these people said because it was in it was essentially the charge was bro based upon what mr howard said and what these witnesses said so quite frankly you can read the charges and you can listen to to the states for the government's proffer in you know exactly what these witnesses said including the victim so it was no need for j was the basis for count two of the indictment which alleged defendant made a false statement essentially what this report does is set out what the actions of the subject or in this case the victim wor and then what the corresponding use of force was and they're there categorize based on what's considered proportional and what's considered acceptable based on the training that the police officers receive there's no there's no testimony or consideration as to what's reasonable or not but in order for the jury to understand for purposes of evaluating count two and whether the defendant falsely filled out that report what the terms were and their relationship on that form and that was the basis for his explanation of the different control techniques the police officers are taught and when they are taught that they can use them so he never provided any type of opinion as to the reasonableness of the defendant's actions he simply explained this is the curriculum and this is the way that the report reads and these are the terms as if you make that which may be terms of art as as contained in the report essentially that there's really a fundamental commonsense component to this case that can't be understated which is basically that a video depicts a chicago police department officer walk up to a man who at his instruction has lowered his pants and his lip you know his shirt and he's standing still and just punches him in the face that's what the evidence was at the trial and that after he punches him in the face he and kicks him in the rims that's what the evidence was and what the defense wanted was john farrell to go through that video and give the jury reasons why under use of force model the defendant was justified in doing that not only is that completely unreliable on health but it was it was vouching it was vouching for the defendant's versions of events regarding purported statements that were made by the victim why is it why is it inappropriate for that because defense in a criminal case to offer an explanation for the officers actions it's not inappropriate it's inappropriate to provide opinion testimony that's unreliable  unhelpful well under the guise of district court didn't didn't reject the expert on expertise grounds or reliability grounds but on irrelevance grounds well i think in this case that the type of expert testimony and subject matter is use of cour which this court ensnare has indicated it's not a particularly complicated subject area it is technical and it is specialized in some ways in some circumstances in particular instances where there's a use of weapons or there is some type of struggle or aggressions agree that's appropriate but in an instance like this one where there's there's just no provocation there's no there's no basis for police up in a punch somebody in the face it's not a particularly technical or complicated question now that said it's still proper for the defense and for the governor back to present evidence as to you know what control techniques are available essentially with what the court has indicated but what's improper is to do that in a form that's intentionally biased confusing and in many ways cumulative of what the evidence the government's evidence already was regarding your natural history of the video is graphic  feral has a background in law enforcement or challenge of those credentials or is it fair to say that a jury would  the first one is there's the risk depending on which version of the proffered expert testimony was going to be used at trial so i guess i'd like to address that first and then just the general risk in terms of confusion and prejudice with respect to the first part the first version or the first proffered version of ferals testimony was essentially that based on the defendant's out of court statements to mr farrow mr farrel pines that specific verbal exchanges took place in the store which justified the defendant walking up to a man who is not depicted speaking on the video and punching him in the face but the second version was it was going to be  analysis that he was going to consider the video but that the basis for his opinion was going to be on defense in court testimony regarding what statements the victim made and what his understanding and perception of the victim's moments and threats were at the time and then the latest is that the last of the versions that was proffered was that it was going to be based on the video as well as the use of force model and why the defendant's actions were consistent with this use of force not which again bears does not bear on the fourth amendment analysis under all three of them the risk was not just that the defendant was going to be able to but i'm sorry that farrel was going to be able to vouch for the defendant's actions in a manner that was unreliable but it was also that they were going to be introducing and admitting statements potentially and making inferences on behalf of the defendant that were not supported by the actual data by the actual video by the testimony of the witnesses w y provide and the problem with this is this the defendant's arrest reports which were created at the time of the incident indicated one version of events which was that he approached the victim at the convenience store and the victim by the way w an employee at the convenience store he was at work this was in the middle of the day q purchased this employee within the store and the employee said i have i have read on the zero and your perch a person for the purpose of a field interview and yet the supposedly said i got read on me and reached for his pocket and as a result of that the defendant sog on and felt he q was compelled to act to protect themselves so that was version number one version number two which was the out of court statements to ferrol in july two thousand and fifteen which were but what was disclosed in the expert disclosure is the basis for his opinion was that he approached the vids and because he had heard a heated conversation between the victim and his partner and as a result of that the words that the victim was using with his partner he approached the victim and asked him if he had a gun and that the victim responded that he he didn't he had some weed and that then the victim positioned themselves so that the the defendant could not see the gun or reach for the gun and as a result he acted and the third version which was his attack the police officers so once again the usual and i agree i think the issue of under seventy two and four three is pretty much the same in this case which is is it probative is it helpful and is it prejudicial because it's unreliable and i think in light of the underlying data it was unreliable in light of the fact that they only considered a portion of the data that was favorable to the defendant it was unreliable but the to answer the court's original question to the response reports because counts two and three of the indictment allege that he had falsified those reports intentionally so that that testimony was confined to just how once for minutes after action report the testimony was confined to what our recruits taught at the chicago police department academy what was the curriculum at the time that the defendant intended were gardy completing reports on the use of force they testified as fact witnesses and that's one only that but that when the defendant testified in his own defense he said he complied with his training so there was never there was never any defense raise it somehow he was mis trained and that he acted out as a misunderstanding instead the testimony was consistent the curriculum at the c p d academy was that they must provide truthful reports they must document the use of force with specific terms and then the government argued and presented evidence based on the video and the testimony of the in court witnesses  the defendant did not do that because instead the terms that he used were inconsistent with what actually happened in the store what we heard here was exactly what the government did at the at the criminal trial look at the video that's all you need to look at it's wrong well something's improper because you heard a lot of arguments about how the government would have been put in this horrible something happened here which is very telling they talk about the risk of having feral testify well guess what they could have alleviated that risk they ranger read and they identified a potential expert witness in larry snelling there was a deadline for us to disclose witnesses we disclosed our expert witness they chose not to disclose an expert witness why not because he couldn't give them the opinion that they wanted in that's that bears out in the testimony if you look at the cross examination of larry snelling in the parts i was about to cross on him he was starting to give testimony that was completely supportive of what john farrell would testify to of course it was cross examination i was stuck within the confines of the questions asked of the government and i was certainly cut off from developing it further but something is fishy here this witness who was identified as a potential expert witness didn't give an expert testimony why not because he could because his testimony would have been the same as john fair us in the fact that we weren't allowed to present john farrell's testimony and the fact that we couldn't get into the information that they're those potential expert we could challenge that as a criminal defendant we were completely deprived of our right to fair trial in this case if we would just ask that the court take a look at this  anxiety or fear or whatever you want to describe it that mr brown face because of the others in the game and in the store i mean what what what what were you what were the limits of what you were going to present just for whatever the court was multiple people that were not handcuffs they were bad neighborhood and there was reports about guns being there there was clearly drugs being soul so clearly that was part of it but john farrell's testimony would have been based i'm a number of factors