and i think she would have just turned nine at the time of trial is there to be shewed that she didn't remember worship just didn't want to testify it is unclear how she some statement she denies making some statement she said she d or i don't know that she was reluctant to testify be because she is now and who are under oath and she was had chance to repeat statements she had made prior because they weren't true we don't know to say that it was a crime scene in her testimony needs to be something beyond sake that nothing happened here she said you know he didn't touch me  place that he shouldn't touch me i mean we have to go by a language in the words that she's using because that you know that and he charged her age how do we know that means here's the problem that i'm having she's eight going on nine this happened when she was maybe seven he is her father figure as you've indicated mom works nights a fee and so she gives her mom works mornings but he's either getting away for better getting up in the morning one of the two he's giving her dress he's doing all of these things and he may do it over a period of time how does she know it's wrong and how does she know that she needs to repeat that in order to be accusatory bullshit you know what she had to ask i'm sorry can you know the statement she made for and she would know why why would she know what she said but i can you you know what you have to lunch yesterday what i'm saying is how does this child know what she said to someone else even if it is true if  you're asking her she might have talked to that person about a lot of things and without leaving her all the i did it take to believe they did but without leading her how do you get there and then when you triggers a hostile witness how do you keep she was putting her head down and she was hesitating she wasn't responding and it wasn't until the statements of love to meet her that she answered no no yes no to the questions despite that the poor i mean she  accuse she never made any accusatory statements and as word spread if there is that is if the only person who can excuse the defendant is this child witness she besides the witness who's saying doesn't happen in order for this statement to come it watch she said no but she did remember other things why can't the conversations that she has a conversation with c r such is the question to her i think it's of the you know does your daddy touch you this way i mean to me that indicates that she's just confused at that point and she does this you besting specific statements at trial she's denying that she asked her about that on and so the problem is that at trial there's there's nothing to cross examine her about because she hasn't said that a crime happened in fact she said a crime didn't happen are you learn i mean i am unfortunately rather familiar with learning and not a fortunate because i still think it's the right decision in that case that child testified to about  about what her grandmother slept that she had and that he was the was married to jimmy she didn't particularly like jenny but she couldn't tell anybody why and every time somebody asked her a question according to the record that might relate to the incident she put her head down and she cried and according to the judge he said although i found her to be competent and she didn't testify as to proceedings he doesn't say anything about what she testified to he says but she was every time somebody a limited question she began to cry again and it was not a light crying by a child she didn't testify to anything that related to this except to people who might you know who who are family members here we have significantly more information from her on the stand that we got from our or our with victim or well i would agree that this isn't exactly like learned certainly there's there's more and more she answered more questions  than the victim and learned it but that doesn't mean that the word doesn't apply entirely here we still have the issue of her not giving it she's a jury testimony and her meaning only person besides hearsay reporters that could give accusatory testimony and that and that's our main point yeah although she may not have she may answer more questions than the work one message she didn't shut down entirely but specially given when she something to that fact i mean that's that's different here here we have a conversation supposedly taking place between these cars a few months after this happened and it's not quite clear she  it kind of the definition of this teacher decision as to whether or not to cross examine but it's almost no there's no there's no decision to make i mean what defense attorney would say see indicated she didn't tell her cousin anything didn't she in fact asked her cousin about things of this nature specifically didn't she say something about or did she tells that problem here which is look point to this testimony become sufficiently accusatory meter is what a witness appears at trial from there are many dimensions to this the chief complaint from the defendant is that because of her testimony in this case c was according to the deal with the trial the council didn't have an opportunity to exercise any form of discretion as to whether on tails it would cross examine the strategically i would submit to you that's just not the case i don't think that there is any better testimony for the defendant so to say that the defendant was there not enough to cross examine the witness in this case is just not the case defendant chose not to and i think that was a sound choice because what cross examination could have been better than what had already been elicited on but i think maybe maybe the point is all companies seem disqualification you know at the point where the witnesses testimony or the witnesses so we will testify that he or she should not be on the witness stand but otherwise i said before what better testimony could you have than a witness availability for him for confrontation purposes i mean i've done whatever our concerns are for the confrontation cause being able to confront this witness on cross exam mission to make sure that they're very truthful testimony i mean if you witness goes up there is your questions about the a child sex case under one fifteen ten or that your memory loss is you wonder section one fifteen ten point one of these issues of confrontation and availability is something that has a lot of different dimensions to it witness obviously was allowed to but that's all that's required constitutionally so in the case of the potential flipper were there maybe you refusal to answer any questions