of the defendant to fulton county police officers that tape interview was videotaped was of the defendant in may twenty ten just a week or so after the complaining witness here had first approached the  whatsoever in his remarks to the police and he said we don't have anything that the defendant that what we do have is something that's completely prejudicial and that is the officers opinion the officer statements of all of the evidence against the defendant consider a motion and lemonade or even a motion to suppress that was brought during trot the state also said while the prejudice could was not as bad as it could have been because they didn't overemphasize the evidence that they hey and finally officers are granted a considerable amount of leeway in connecting and interrogates the court does not specifically address any of the points raised by either party simply allow to be play yet at least in part to the if you're really short instruction given after that portion of the people's play the defense returned to the this point in his post trial motion and strenuously argue that there was error in the introduction of the videotape interview we continue to press that argument now feel as it turns out now on appeal and for the very first time the state gives us what they were asked to acquiesce in the accusation the trial judge at the same time must make a preliminary determination that a person in the defendant's position at that time would naturally have to respond so they both the jury and the judge had things to do with that point the state's failure to raise the tacit admission as a basis here or as a basis for admission of this videotape prevented both the judge and the jury from heart case is that that was not a plead related discussion which would be inadmissible under rule world two the court went on to briefly address with and put to one side the  mccormick the pros mccormick makes the same point and that is that it passes ignition should be only rarely use in especially in the situation where it is supposedly a cur while the reason is because the defendant is given miranda warnings at the beginning of that facility on therapy he's told if you have the right to remain silent he's not told you have the right to remain silent unless there is an accusatory accusation in which case under the expedition rule you better on he's told that anything you say here can and will be used against you in a court of law well actually should also be told anything you don't say can and will be when they're asked to produce a basis for admission so of a sip responses he did not directly respond i don't know if it was a vase of in the sense of the heart case where when he was asked he we know you did it and he much progress but what we certainly know is that there was a great deal of credit because within this case interview the police over and over again referred to prior consistent statements made by the complaining witness they talked about what told him they talked about what she had told the the child advocacy center with it was not a matter of evidence because it was not in this world for one fifteen when they talk about she made allegations they referred to her making heavy certain of their you can dance all you want to but we know that through if you go to the courthouse they're going to look at you like you're alive if you keep telling the story this is what you're saying obviously it's an opinion of the defendants you appeal we argue that if this man first insists this court should reverse the conviction outright for the reasons we set forth in issue number one and record for it if not actually go on to reverse the conviction innocent person it may be considered terminating and here let's look at what the finance responses were early on the recording to find it was told are only actions of a sexual nature specifically inappropriate touching later when he's asked if he had any type of sexual person would be expected to reply that it was that was the at the end of the chords discussion of the problem with using passive ignitions in a criminal case now whether the defendant was under arrest here specific advice of miranda warnings which makes the tacit admission theory so questionable in a criminal case as i outlined earlier east only has a right to remain silence to remain silent well no you don't have a right to remain silent because we've got of people's perceptions even without the miranda warnings that they do have a right to remain silent the tacit admission theory is extremely questionable in criminal cases that's the point of that's the point of gra forever is that it's a statement but how can that how can it come in because and you don't want to if the defendant may want to use that i suppose to demonstrate that he's a religious man the state may want to use it because of all this guy came off y a religious religious man but he looks more like to me a teacher than anybody else he was smarmy and this was he was using his religion as a feel for what he was doing just because the defendant has said something doesn't mean that it can come in and again here the he was responding to the questions he could have responded more directly but the state has not still a significant instruction the short instruction that was given to the jury after this tape was fight i was at please submit that is that's instruction within to respect and adequate and then at least ones that dead wrong it was in adequate because it did tell them who ignore statements to the police didn't regard to the evidence and then the judge gave an example of well if they tell you for example that they've got really great evidence you can ignore that well that's not really the problem here they didn't go there if they were referring to things that the jury knew they would have had they were referring to text messages and the jury knew there were text messages so that it was not something that they were making up or are referring to really great evidence and may have been exaggerated they were talking about things they hand well first acts precisely the problem with prior consistent state when they are about what they  of the defendant but they were given no further off in instruction in terms of what to do and they certainly were not given any instructions of on the tacit admission here about what they have to