witness yes with respect i would say with all due respect to you yes as to rebuttal evidence of well because the rule is now clear that if the state has rebuttal evidence they have to disclose it before of the trial professions of what was going through their minds as the truth in the situation and that's why this case law that indicates a review board looks at this to know determines really whether they have that intention or not so didn't have an adequate opportunity to determine how to present its case whether to put on certain witnesses were the to refrain from putting certain where the stronger image is the bottom line your trial strategy was changed the defense attorneys i would have looked at this case differently basically as what his conduct was and if i can just take grist for one home and for lack of a better term in the good old days also testified that he used a cane but he was able to walk without graft but infrequently yes and so what happened at the trial was of the defendant's wife gets on the stand and says you know he to compensate for these other medical problems by walking without the cane but when she does it in surrey bottle it looks like it's an excuse it looks like you're trying to cover for your earlier know the trial counsel i don't know exactly what would have been done i didn't consult with these people individually but perhaps there is a completely different defense perhaps in defense it is that the complaint when this is not believable she waits for years trying to recall i think they all indicated that it was a rare occurrence that was very difficult for him to walk on the system something to that effect and but that's the thrust of  defense was it's extremely difficult for him it's a rare event for him and he has all these medical problems that he had spinal bifida and so forth and that makes it difficult for him to stay in to walk to be on the system to his sexual relations there was a lot of discussion about what his capabilities were because of all of these conditions so what happens is before the wife has talked to the police well in advance of the trial when the defendant gets charged and she talks about his incapacity to have sexual relations they know and they ask for more discovery attorney and he says what do you think we should do and what does mr weiss say he says keep it in your breast pocket don't disclose it to them until their case is over so clearly they are ali wait to see what the defense exact testimony is going to be even though they know what the outline of the defense they have made a mistake they it could go the state it made a motion in limine e to try to get additional information with respect to the exact focus something defense is that correct right ok and the response was we're not going to give you any other information testify and the judge issued a ruling with respect to that did not i want to say your honor that there were some medical records exchanged there not in the record to my recollection perhaps they are but the point is there was a full disclosure of the fact that this was the defense and the and the state's argument on appeal is well we didn't know exactly what the defense witnesses are going to testify well of course that's always the case that's always the case you have to wait for the defense case in chief to know so the point is that the state knows this is going to happen waiting in the wings and now we're back to the good old days when it's just fine to develop mind clearly there is a discovery i don't think there should be any question about that the question is what's the appropriate sanction for it and if you say well we're going to  affirm the message is delivering you want to take your chances that million dollar corvo say oh it wasn't prejudicial or we don't know precisely what the defense would have been in this case it's hard to demonstrate extreme circumstances when you're talking about a discovery i don't think that this that's the case because some of the caseload side in this first argument are situations where  and i'll double check this again your honor but i don't think there is any substantial discussion of prejudice i think the question is what is the appropriate sanction once we find discovery violations let me ask you this  sure you know one of the myriad of sanctions the court can use and i know this was a bench trial this is not a jury trial is to give you ample time to address the new  that type of rommany comes about before the testimony is introduced so one side or the other becomes aware that suddenly there are some of the evidence they didn't know about earlier they object to the trial court and the trial court says ok wait a minute before i have a lot of test room testimony to go forward i'm going to give you exactly that opportunity you can investigate it cetera et cetera in this situation  judge gee you know if we had only known we wouldn't put mrs lives she would have testified to certain things that she didn't introduce so will you please just ignore what you heard i mean it can't be done going to make it easy for her than to not testify as to what she said that dunn was truthful well i have two problems with that number one criminal trials in particular are limited searches for the truth because we have things like the fourth amendment which excludes truthful testimony under certain circumstances we have other types of constitutional protections that ta e that that can in our ability to get everything we might otherwise get if we didn't have those protections so this so that's number one and number two is it's not just a question of whether this is lives he was truthful or what have testified to exactly the information that she did it's a question of what what is the right defense counsel to determine what he's going to put on have her testify or not testify so the funds counsel in this case standing in the shoes of the fund as if he were the family doesn't have their opportunity that's my that's my problem with your with your coming so basically here with respect to the defendant's purported ability to walk is shown in the video you again sit down here is the defense attorney miles are we saying then that the state has no right to anticipate what a defense might be what evidence they might need and they have to wait until the cas starts to prepare any possible rebuttal testimony and so they would be the one surprised if they waited until they heard that testimony to start and just generally to prepare or get a bottle possible rebuttal testimony in order they would be the one surprised and left with one hand behind their back the whole thing is strategy the strategy has to be on both sides and again the case law tells us that it's when the intent is for him to use it and again that's why the cases i believe talk about time perhaps to get a medical expert to come in to testify more specifically the aspect of the defense that really was key which was his ability to have to set to function many dozens of cases i know that good trial lawyers try to intice a paper with their opponent is going to do of course of course and if they know what the other side is going to they're going to prepare ahead of time to try to respond to that some way or to try to put on their evidence if they go for a shot to blow whatever it is might be what was true a medical defense is going to be presented in fear despite hearing apparently hundreds of pages of documents there was no discussion of a witness who would bring this stuff in which meant that it was essentially  ible there was no discussion even of defense treating physician coming in and so the people were left with no idea how with what we listed is that in their category a the defense could possibly be presented so if they had the tape and it was for two months before trial they didn't have any reason to know what would or would not be presented so within this tape would be thousand and six in two thousand and seven nothing was disclosed into how this medical evidence was presented openly was presented to the defendant's wife and basically the way she presented it disclosure about how his medical condition would have been supported by anything to account is medical or scientific or treatment or expert testimony so therefore she said that they knew they were going to use the evidence  and could have only been relevant in rebuttal when they didn't know how this particular defense was going to be rationally presented is simply that supported by the record and yes they talked to mr weiss about it mr weiss is their boss they i certainly concede that the record shows that they had said this was going to be their intent but where there was no way of how it's going to be presented or in what action also did the hundreds of pages of based on what was submitted to them before trial they didn't have any reason to know at least with any certainty what was going to be alleged what was going to be presented and there was going to shape up to a defense of physical the court focused were interpreted that to mean really that there was going to be a focus on iraq titled dysfunction i believe so i believe also of the despite necessarily tied to this for the reasons but in addition to the break which would allow them to consider this information who are also very specifically said without being my father had it as a separate bathroom because he has medical problems my father has great difficulty walking around the house he uses a cane a lot he has difficulty going up and down the manner in which he testified he did how he is that video and all detrimental or even relevant is supposed to come lateral to what the issues are given the testimony you just described because the wife  for this walmart video because the prosecutor is asking her all these questions he knows that's what's going to happen here and he knows he's got in his pocket he had video to contradict her if she says oh yeah he  the standard your standard is not your thing on with precision what the testimony is going to be the standard is do they know what the defense has said to them about the defense of the