this is a jerry who heard -- jury who heard evidence about the boat manifesto, the respondent wrote after he ran over tamerlan in which he justified his actions on the basis of jihad and showed how proud he was of them. this after he needn't worry about tamerlan at all. he thought he was fine. ms. >> -- >> there's really an interesting sort of evidentiary question here and i would like your explanation of the standard that implies. this evidence is inadmissible many times over in a regular trial where we have rules of evidence. but in the mitigation phase of the penalty on a capital case may be the rule is anything goes. and if that is the case, that's what i want to know. is it really anything goes? suppose we had in this case was quintuple hearsay about something that tamerlan supposedly did years ago in russia. one person in russia told another person in russia told another person in russia down the line that he did certain things. and that is admitted. then what can he do in response? can you then introduce evidence to show that actually didn't happen or can you introduce evidence to

but that's what jerry is supposed to do isn't it. mr. feigin: unlike the other evidence you cited, there was going to be no cross-examination here. the only people who might've known what happened were -- and possibly tamerlan and both of them were dead. this investigation it hit the end of the road. there was no way to figure out what happened in the district court recently determined that. we are here and abuse of discretion review and moreover i think this is subject to harmless error analysis and if you look at the details the jury heard and i'm happy to list them all. >> along the same lines, you say on page 39 of the brief but under the federal death penalty act the countervailing interests that would justify excluding evidence, you can do that if they outweigh the information's probative value. on the other hand if the countervailing interest substantially outweigh, do you really think that's a difference in practice? i thought we would air the other way on the federal death penalty act we want the countervailing evidence that wou