before coming into open court this morning we had the opportunity to have the next party hearing in the robe and as part of that hearing mr stern and his coll s gave us the benefit of the views all of this material being under seal until further order of the court order time permitting your honour's and with your permission i would like to address two core issues in the case one of which is the clearly erroneous failure of the district court to consider the whole record on the issue of suggestive identification and its omission of salient facts that were reduced in that record of suggestive identification and indeed his consideration according to his opinion of matters outside the record which were not introduced during the week hearing and to the failure of the court to apply to i preclusion of defense cross examination of the fingerprint expert its own rule which it invoked in favor of the prosecution that when the jury would struggle enormously with its biases and preconceptions on a matter it should be allowed to hear about other cases that it dress that bias and that preconception the st of these issues is the one which as i understand it the court will address in closed session  balanced its rule its own rule that it created in this case and i'm using its words when the jury would struggle enormously quote unquote with its preconceptions about whether or not a clean cut kid could become a terrorist an issue which as i understand it wasn't even raised in the case then the government would be allowed to bring in an expert to testify about other cases to tell the jury that in fact essentially a clean cut kid could become a terrorist hence permitted the testimony of an expert named the dino to testify that he did interviewed thirty people thirty other terrorists and he concluded that  anybody essentially could be a terrorist but when it came to the fingerprint request during the examination of the print fingerprint expert for the prosecution that the defense wanted to question the expert about the now famous mayfield incident and the report by the f b i which involved the f b i s conclusion for many many months that two people two different people had the same thing or print when the defense asked to bring and that report to the attention of the jury through cross examination of the fingerprint expert given the bias in the preconceptions that juries have that fingerprint evidence is infallible that it's a science that there's absolute certainty about it notwithstanding that preconception and that bias and the fact that the jury would struggle enormously to overcome that the corporate clouded it mission of the mayfield report or cross examination of the fingerprint witness about the mayfield report both situations  testimony about his interviews with thirty terrorists and the mayfield report deal with another case and other cases and this was the reason the court said it was precluding examination using the mayfield report that it's another case it's going to distract a jury with other cases well with with the d no he didn't say i interviewed this person and i found x y and z and then i talked to this other person and these were her characteristics he didn't go into he just said there is no stereotype of who becomes a terrorist  can be anybody and what you wanted to do is not just introduce that there could be a mistake with fingerprints you got in on cross but in that particular case using different agents they had made a mistake and it would have required some background into those individual characteristics of what happened in that case so it is are those differences to asians or how would you harmonize just a general opinion no stereotype of a terrorist as opposed to going into the specifics of a case of talking about what happened there what was wrong there i think your honor that the what was supposedly a no profile testimony the dino became a profile testimony in that now the court's question could a clean cut kid as apparently mr for it looked like to the jury  become a terrorist the answer which is is according to our profiles a clean cut kid can be a terrorist so indeed these other cases inform this profile which was presented to the jury don't worry about that this defendant could be a terrorist as much of the other evidence in the case was about could be could be this could be that could be his  be his hand writing no definite opinions but a lot of could be here with the mayfield report which to water which the f b i itself in the report said is a watershed shared at least ten points of characteristics at least the experts thought so for many many months until finally the f b i with droom the mayfield identification but for many many months contrary to everything that juries have heard since since their childhoods my childhood i think the courts as well i think a prince don't lie well here were two people with the same fingerprints according to the f b i and according to the spanish authorities in fact your honour's the f b i met with the spanish authorities and were not convinced at st that their conclusion was wrong it was important absolutely important for the jury to know this if that was going to be any substance to cross examination of a fingerprint expert in fact the perceptions are so strong that this court in the case of farhang said that it was plausible for a prosecutor to use a batson challenge against a juror who watched a lot of television forensic science shows it was ok to excuse that juror because he was going to expect infallibility infallible scientific testimony in the case th the american association for the advancement of science has repeatedly said that the public perception has been shaped by decades of overstatement by fingerprint experts most people think fingerprints are infallible the f b i itself said that fingerprints are the gold standard of forensic science absolute certainty now what about the significance of that the government cites the case of united states against michel martin in the th circuit a case in which there was a full blown attempt by the defense in that case to make a daubert finding that fingerprints were not science and shouldn't be admitted as such the conclusion in the case was well most factors don't disfavor the admission of fingerprints however in that case which was handed down before the mayfield report there were both in the th circuit actually which is upheld the preclusion of the mayfield report but in one of them called reversed defense counsel was allowed to address all of the mistakes and the problems that the mayfield report brought up but that the preclusion was about the mayfield report words itself there's another one in the th circuit called bonds from two thousand and nineteen actually but they haven't had that right court didn't have the advantage of the american association for the advancement of sciences recent report and seventeen based on mayfield concluding finally fingerprints are not science plain and simple that there is no scientific basis for concluding that two people can't may please the court my name is richard tucker i'm an assistant united states attorney in the eastern district of new york i also represented the government at trial in this matter i think the court has as  responses on these two tenuously related issues dealing st with the fingerprint evidence i think it's important to note just from the outset that the mayfield case which as your honor noted involved different f b i personnel  different facts including and this is the point i want to make in that particular instance in the mayfield case there is a single fingerprint match and in this instance the government a deuce the trial evidence that there were eighteen fingerprint matches that is fingerprints from think the argument itself illustrated it takes a substantial amount of time to even explain the facts of the mayfield case and in a case like this where the defendant's conduct spanned continence and more than almost a decade judge cohen correctly ruled that allowing this frolic into a completely unrelated case was going to run the risk of potentially confusing the jury and  complicated facts before it now that said judge kogan was careful to permit defense counsel to pursue the substantive lines of cross examination that i think mr stern has articulated here today and and the theme throughout much of the defense in this case was one of subjectivity that theme was to route the cross examination of the fingerprint evidence and continue through the closing argument the idea that mistakes could happen was  licit and the fingerprint expert did not contest that that there was an element of subjectivity in her process she explained her process in detail and she had knowledge that mistakes could happen there's absolutely no basis to overturn judge kogan is ruling that precluded defense counsel from pursuing this totally unrelated constellation of facts involving different people with a significantly smaller quantity of evidence just because dr videos testimony was raised i'd like to address that briefly and your honor again anticipated my points dr videos testimony the vast majority of it related to questions about the history of al qaeda the structure of al leadership the location of the training facilities and the means by which individuals traveled to those facilities the discussion about whether there was a specific profile for an individual who could radicalize was at the very conclusion of his direct examination was really not a core part of what his testimony involved and also as your own identified and just so everyone's clear there was absolutely no discussion of other terrorists that dr vino had interview specifically by names with the nature of their conduct and judge kogan again was extremely careful both with respect to dr video and with respect to the testimony of our other witnesses to make certain that we stayed focused as much as we could on the facts involving this case again to avoid undue delay and complicating what is already a factually rigorous case so i think the analogy fails here i do not believe that the idea of allowing this one bit of testimony from d vino which as judge kogan noted had some probative impact and almost no prejudicial effect is in any way comparable to the court's ruling excluding this completely unrelated incident with different people and a different  the fingerprint expert was able to testify without challenge that fingerprint experts and fingerprint examination know that fingerprint examiners make mistakes but that but she also presented herself and five times it was referred to she referred to herself as a forensic scientist five times in the record she introduced herself she was questioned as a forensic scientist when mayfield and its progeny say there's no science to it because there is no evidence that in fact two people don't share the same thing or prince she was able to say that she may decide by side comparison of mayfield's print with the latent prints when in fact that very thing that the mayfield report criticized the f b i for doing it's a confirmation bias when the suspects print is compared to the weight and she was able to  say that the ten point comparison is a legitimate basis when mayfield said ten point comparison in both cases didn't sufficiently identify the prints she was able to say that no two people have the same print which may feel the itself said it's extraordinarily rare but it happened in this case that as far as our analysis t people did have the same print at least until they finally said no research has shown she said that that this is accurate and reliable evidence but the national association the american association they all say there's no reason to believe that at all but we were precluded from bringing that to the jury she was able to say that herc findings was an identification she made an identification that to frick friction ridge prince originated from the same source that should not be said says the the advance  american association for the advancement of science all of these things work precluded because we couldn't show the very report from which this extraordinary as the f b i itself said extraordinary evidence watershed evidence of how fingerprints are not scientific and the jury shouldn't expect them to be infallible thank you very much mr now and i want the record this court and how kentucky set forth the requirements the court needs the findings the court must make to properly seal a district court i presume those rules would apply here your honor will tell me if i'm presuming that and this is a joint motion and i think we're in agreement that all of the factors probability that the public argument would prejudice a compelling interest of the government the parties or a rd party that's the factual point that i want to make in our sealed in the tucker affidavit which is part of the court sealed appendix that page is sealed five and six we identify that individuals in similar circumstances as the witness in the deposition have been in danger and their family members have been in danger in the past if the fact of their cooperation was made known i also would just make a note for the record that certain techniques employed here are potentially sensitive and there is a compelling u s government interest to avoid those becoming public i believe that there is no reasonable alternative to closure in this matter given the dynamic nature or oral argument and the importance that appellant's counsel have the ability to answer your honor's questions i believe that we have devised a narrowly tailored approach to this in as much as we've had some oral argument in open court already and i would submit that the prejudice is overriding of the qualified st amendment right to access so i think if your honor agrees with those propositions of fact and i think the record is more than adequate review members of the court do agree and it is the case is it not you asserted the state secret doctor thank you anything else to be put on the record mr boyle mr stern thank you very much where the court is in recess until we reconvene as quickly as possible thank you