permitted the child witness to whisper several of his answers to the court which the court then repeated back for the parties that hear this procedure was problematic because it did not i responded and counsel the ability to listen to the manner in which those answers were being communicated the only supreme court people view often held that the right to confront witnesses includes the right to hear and to see them as they test the witness testify and observe his the meaner the defendant was not and this quite possibly prejudiced the defendant by not allowing him to suggest possible lines of questioning for cross examination and what we have here is more serious than what happened in the offing because not only was responded unable to listen to those answers but trial counsel was as well this is important because as this court held in people we hadn't spoken language contains more communicative function than words it contains paralleling and that includes the rate of speech the quality of voice stress emphasis of least ten years i believe and so for the last two years the state or rather the court has had a means by which under illinois law to do what should have been done could have been done in this case yes i believe it may have been active even earlier than that it was i believe soon after the marilyn b craig decision where the us supreme court upheld a similar provision that maryland had and soon after that states across the united states began acting similar provisions and the problem here is that responded in council were really unable to hear if say the witness hesitated on a word repast long enough the child victims of testimony just of noting that the child whispered to the crowds of what how do you characterize what the trial court said in court was a testimony i think it might even be hearsay and well you've got the trial judge not a sworn witness this is almost along the lines  of testimony that comes by way of an interpreter of of but here you have a witness whispering into the trial judges here in the trial judge indicating what the witness  and denied responded a fair trial because of the procedure the court employ he the witness was not able to effectively cross him because how would that process even work would be would counsel ask the court how the witness may have relayed those answers it's really like the procedure is so unusual that we know that i have not put it that i was not you will find any case law on this and that's why i walk then is the most analogous situation because i'm often there was a visual barrier and here there was a listening area and like a lot them the procedure here did not allow for active cross examination and to ensure that what was said was revival if it even was evidence and this is reviewable under both problems of the plain error dr under seventy this is closely balance this is a contest credibility on one side we have the respond on the other side we have the witness neither version is fanciful and neither reason is supported by any sort of corroborating evidence or i believe clear and i believe the strongest argument at this point because under study this is a contest of credibility and as such it is necessarily closely balance and it's also reviewable under the second prong because this i responded to a fair trial these answers these whisper answers were not in response to innocuous questions such as age or his hobbies but the questions went to the very heart of the conduct in this case cross examine as to those two statements should that be of concern in this court i don't think so because your honor the way the our adversarial process works is that we test a witness credibility through their entire city we don't have the witness get on the stand answer questions regarding only essential elements of the offense and then sit down we look to the statement and the testimony as a whole to judge that credibility and here we have three questions i believe that went to the very heart of this matter that we don't know how the witness relayed those an on as if there are no further questions i would ask this court reversed for a new trial all right you have rebuttal mr building yes you've been before this court many times yes and always argued effective what possible reason would there be be for us to not  expedient and gracious during the christmas season i'll save maybe he even thought that he was doing a good that but he ignored what ought to be done  see what the law but the question your honor i believe would be whether or not there was a reason that all accommodation for a child united states supreme court has of course or has he indicated that there can be reasonable accommodation for a child witness i mean i think that's reasonabl clear second the purpose of the confrontation clause is to ensure that testimony or evidence is reliable and subject to  did testify in the spine of the president and he was subject to cross examination these are factors which i would suggest the words are then of or certain words are then spoken by the trial counsel and says this is what the child witness said how can that be characterized as evidence  saying that the childhood was put in the year of the prosecutor and the prosecutor could have done the same thing and it still would have been adams because the prosecutors an officer of the court about the i would suggest back to trial judge in this case the there is a difference between the trial court and the guardian ad litum prosecutor defense counsel in terms of the but would be something like with the translator translators repeat from a foreign language but cannot be understood probably by anyone else in the courtroom court although we do not so hold these assurances of reliability an adversary in its are far greater than those required for admission of hearsay testimony under the confrontation clause where there are confident that the use of the one way closed circuit television procedure were necessary to further important state interest does not impede upon the truth seeking or symbolic purposes of a confrontation clause as indicated the substance of his contested states to a police officer the police officer then testifies a trial as to the substance of the state then testifies but there's not testify as to the substance of those statements this would be i would suggest it miscible under one fifteen hash ten witness is subject to cross examination is testified in response to present and testifies under oath so for those reasons i would suggest that statements are deemed reliable because of the circumstances of those folks usually a dying declaration excited utterance in contrast trial testimony is not automatically deemed reliable and must be tested through confrontation and that's the situation we have here and although maryland v craig like discussed here say in the procedure that the u s supreme court in your libby craig found constitutional preserve the basic elements outside a face to face competition of the confrontation clause which was the ability to listen in to see the witness testify albeit through a close circuit television regarding one fifteen ten the court must still it's my understanding that for one fifteen and hearing if the witness is available then for testifying then or only if the witness is unavailable your honour's is that hearsay allowed and that was not the case here because the witness was available and subject to cross examination that you whispered into the judge's year you know i'm not sure i know that the court was very forceful in its defense of how it received the evidence and well as well i used the word brave ye that he may be forceful in protecting the procedure that he acted i had spent i knew that i was asked to respect the living there