rules of evidence apply to all evidence or is there a separate less stringent set applicable evidence offered by the defendant gentleman collector would you a britain thousands of opinions and every one of those opinions you stated explicitly or by implication that the rules were the same for both sides nevertheless crown argues that the mcknight substantial similarily similarity analysis for application of roof or o three relating to the admission of video accident reconstruction experiments does not apply to the a t p madam o evidence that was the heart of its case and that night b johnson controls the score to help a court may properly admit experimental evidence if the test were conditions substantially similar to the actual conditions this rule provides clear guidance to  big night substantial similarity test similar to the rule required the district court to properly exercise its discretion to do so it had to use a two step process in deciding whether to admit this  test the alternative design and situations that are entirely different to determine whether that alternative design is feasible you are that entirely true but if that testing process replicate and a bit in this case and off dock a bit and a tip over of that board can be shown to the jury it still must comply with the midnight substantial similarity test so that test  court before allowing it recreate that was the part of the defendant to cannes to be seen by the jury the court had the st class father was this really presented as a recreate or was it presented as recreate is the right word because really creation implies something already happened you're going to recreate it isn't this more of a hypothetical what would happen if we had a different design in a person in the forklift in a certain event happen in the future well you are i mean i'm not sure there isn't i don't understand there to be evidence that this actually happened before and you're recreating it oh it's happened many times never with a door but their point is for clues go off loading docks they were trying to recreate what that would look like to the jury the words they used to the jury were to the court and their arguments w we need to show the jury what this looks like that implies we need to recreate it for the jury to take them there so that they will understand our position on how this happened when mcknight talks about experimental evidence it talks about all experimental evidence sure and that case they were talking about a battery but there was no limitation the rules only apply to the vet that is the plaintiff's causative abet it would be the wild west for overalls when they tape it's hands down when they use the portal it and put it over it's so close to reality that you have to then look even closer the nd part of this evidence that the district court didn't do demonstrated by complete failure to apply the mcknight test it instead only applied for a one for a two relevance test it never got into the heart of poor through which had it done so would have used the substantial similarity test we know this because when we look at the videos whether they were the crown videos that went out the jury or other videos they saw the the dummies were made to look like like even to the point of zooming in on them as they laid in a crumpled position on the floor they did everything that could take human eyes that they played the sounds that the jury would hear help violent it is the dummies your honor we're just going to wonder what that means is if i was perfectly adjusted to one and i put that out on my head i would collapse hear underlying incident russians say that that needs to be substantially similar not necessarily the feasibility of an alternative design you're out of that really is the rule but if you are recreating and a bit as part of your defense the substantial similarity test would have to apply to all of it but i'm scared what i'm what i'm lost on in your terminology what are they recreating they're not recreating the underlying incident that your client was involved in right that's absolutely true ok but did they recreate him it seems to me what they're doing is testing the feasibility of that ahead or they are recreating an accident and valving an happen if we had a door and your decision is the hypothetical creation it doesn't isn't substantially similar to what would really happen and therefore it's misleading to the jury to call that i think  think that my use of two letters are and are probably misplaced i think you've hit the nail on the head if you create an experiment that you show to the jury and that experiment looks like a creation of an a vet that is relevant to the case is relevant to your defense here look part of your defense you must make sure that that complies with the mic night substantial similarity rule if it does not we have a rule for three problems because it is likely that simply mislead and confuse the jury as we did here so now that we've established that if you're asking us then to extend mcknight beyond recreate sions of the incident that happened to the plaintiff two of these hypothetical scenarios that are part of the defense and the question would be why should we extend mcknight to ned and why isn't cross examination and the other things the district court mentioned sufficient to guard against misleading material were to able for example to cross examine here establish that a real person wouldn't act the same way that a dummy works and there are different arms on different types of forklifts and so for there to answer to that force i don't believe mcknight could ever be read is limited only to one lot of evidence produced by one side the nd is we learn from the united states supreme court and dog cross examination test to a science that could be misleading that is junk science is not an adequate protection for the jury the judge is still have to exercise their gate keeping role and the case the judge never exercises gatekeeping role because he never went through the work if they're going to operate for scientific principle they never identify the scientific principles if they're going to offer it for the creation of an a bit for the jury to consider they have to show this is how it would actually happen i can't unredeemed a bell of a good you know analysis we know this from numerous cases throughout the country plus commentators who write about it you know testimony video experiment shown by well qualified experts are so powerful that cannot be fixed as the judge as our trial judge said weather and canny in the cases that say if you preemptively introduce evidence that the defense is likely to introduce you forego your opportunity for appeal the supreme court in only rejected the argument that that's not fair and said that everybody's got to make trial based on the pros and cons why isn't this a case where you had to make a strategic decision about whether to go forward with your expert tocking about these videos before the defense put them on and your kind of stuck with that decision there was no mystery about what the defendant was going to use and this is how we were going to use objection was required to preserve it under rule one of three but the question is whether affirmatively pursuing it is a waiver they opened it they showed it to the jury in their many opening and they did a explicit and direct description of it and their primary opening it was before the jury furthermore we believe that the method and manner in which this trial judge managed h against our motions and lemony it was fair game and that is why defense counsel had no problem showing it in the opening because they knew it was already admitted as the defendants opening couldn't be more clear on what they were going to do this is a question where there was a there was some he would put it to another crime and we don't know what the state's going to use it or not and the then that predictably gets out in front of it here there was no question or use that they had already not did i really don't think all are turned on any mystery about whether the government will be cross examined defendant with his prior felony convictions and it's a no brainer that they would do that and the and the present presentation of actual evidence but don't the advisory committee notes for one hundred and three cut against you as well i don't think so i think in a situation where as here there is an explicit ruling against us whereas here that ruling let us everyone believe the sadness was admitted and where it was indeed used and described explicitly by the defendant in their openings it was our obligation to respect those rulings by the trial court and proceed accordingly well i laid it on the evidence is part of the problem and you can respect the ruling without offering the evidence you have to i respect the fact that the fence could that is my understanding that would up a little if that's the case then i think you're still in a situation where it's it's not really in the record into all one of the parties makes use of it and it sounds like the  one to make use of it we never asked for it to go up during iraq we went from soup to nuts explicitly and as as we pointed out to the district court as you i didn't hear if you were if you were trying to interrupt me there or not go ahead ok and this evidence that was he was absolutely heart of our defense  establish that the alternative design proposal if it which is the burden to propose under i will all would in fact according to the instruction introduced dangers of equal or greater magnitude but why should mcknight also apply to evidence that's offered for the purpose of showing hypothetically what would happen with a different design if you're trying to convince the jury you put a door on it's st circuit as well as other law and they were they tell me that scientific principles when demonstrated in a fairly abstract way are quite unlikely to be confused with the events on trial but more troublesome cases however ones like this one whether it's to recreate so when you have a situation where they're demonstrating science they're testing an alternative design you have to evaluate that out of the judge but it did under a relevant standard the same back that we would be attempting to recreate a left leg injury a collision accident but just showing general scientific principles but the quick note was the closer you get to attempting to recreate the accident plaintiff is complaining  proposed by mr ryan art and his council was reasonable did not create additional dangers that was the concept of our argument and that was what judge bennett ruled was when he looked at those doubts he looked at the methodology he heard from witnesses who said this methodology was acceptable that used to be t v to demonstrate injury potential to operators moving pieces of testimony that this was a reasonably reliable scientific princip where that decision was made and your honor i would say i don't i don't see that precise language either i'm not going to try to sidestep that issue but i will tell you i don't think any rational d sure individual could even contemplate that we were using that evidence as they recreate of mr ryan our tax code and that is in fact the standard and if you read the clear way in which a big might make nice they say that it does not apply in a situation where you're not attempting to recreate what is not and i don't think there's even a rational argument that crown was introducing evidence to pull it off the docks to recreate apart and to at least to that question but that was not in any way done here and that was not the purpose of the evidence and just but it was clear up you knew that and i want to take one minute and then i want to come back to mcknight and i also want to ruling and they cite the same types of cases which have been held there are clearly in the circuit mr warschauer understood we all this trial lawyers understand when you introduce the evidence into the trial the only thing i have done i practice about emission of exhibits we had well back and forth mr warschauer and when we find the explanation of that rule of that practice and the fact in particular about when the exhibits go to the jury if was not went back to the jury but i thought mr marsh are green with that i'm just asking you where we can is there something written down from the district court that explains how this is handled or is this just something that was automatically it made it into evidence without any further action by counsel i think what the what the practice was i understood it if the parties agreed there would be no need to you know or you get in front of the court that you could not to use them then they would not be in the record that's absolutely correct they would not have been introduced if we had not used them now i'll be honest with the court i was it was overkill to use the but if we had not for whatever reason and in think it would be a better argument but even that we always hope that the pictures came from the videos that they are yes they will actually no the pictures were taken the same time i'm not trying to be cute there but it wasn't like they were stills of the video there were pictures taken at the time of the testing as well so we had an opportunity and a mini opening just to show the jury what the case put them out and we could use for the pieces of information to further describe have asked by young people got it but there is not a case in the country that we found that that applies to the substantial similarity test to scientific evidence which is used to show i will ask your honor just to look at what judge bennett did he could not have been more discretionary he could not have done more to painstakingly analyze these issues and in fact believe me there were many pieces of evidence we did not get in error would be harmless or prejudicial you know i certainly read judge bennett's statement as most are permitted a new trial and i do think he supports that he made the correct decision i will tell you there was overwhelming evidence and i would these trucks shall be designed with an open operator or not with the door that it will want a lot of people can say this truck not only meets the standard but if you put a door on it it does not meet that standard i would contest not substantially influence the verdict but you can write out the evidence you think it's like that so thank you for it argument we give you three minutes on that of all i would be wonderful your honor thank you very much i want to start off with argument about scientific principle through this motion through this minute i have yet to hear what that scientific principle of scientific principles are proved sample and the shadow case which involve claims in opening statement open the door for the other party to do introduce evidence otherwise inadmissible i would also argue that to the extent that we might see that what i did is a mistake this court has written in u