reading the transcript that there was a give and take an opportunity if someone did not understand what the judge told them that they could have spoken up but if it were the first couple words that you spoke for the answer to this issue  we do not look at how soon the error was the other words look at the particular facts and circumstances of this case to see how you are made out how the question may or may not or the error may or may not have not told that the defendant had the right not to present evidence on his own behalf but that has to be weighed with the fact that as you mentioned near the end just prior the defendant in this case did put on his o circumstances of every case that this must be reviewed as all other playing their cases and look at the totality of the circumstances this is not a structural there i simply and wholeheartedly disagree and i cited in very extensively the u s supreme court cases the only supreme court case its structural layers many of my two constitutional errors and then only to a very limited number of constitutional  rule for thirty one b questioning is not a constitutional right under the u s constitution not under the constitution what about doing what it is designed at least on its face intolerance to preserve and that is bigger and impartial jury jury for if you're an impartial trial that is a constitutional right correct yes it is and it is an important right as there is that it is essential that you have an unbiased jury but under a error nothing but and under a plain error analysis you have to look to see if there was that bias cherry defendant makes the argument that there was any bias there appears in the record to the state has reviewed no evidence that there was any bias the jury was impartial they looked at all of the information and they did not they found him not guilty as stated on several of the charges there is no evidence of bias and in that case it is fair for the state to argue as i do that the error occurred but it was harmless beyond a reasonable doubt and that again is based on all of the circumstances and the facts of this case that there was one juror actually who was  i know that some of this has to do with whether you find the way the trial court asked a question there are some interpretation of whether clearly the state believes that the way it was asked it was appropriate by my account in the record there were two that were thoroughly asked all questions and the other issue seated there as well the record reflects that there were certainly jurors sitting in the driver of the jury box who had not been accepted at that particular time who heard that exchange is that correct correct and during the trial court's initial comments to the entire year they were told of all four of their principals which again defendant's brief that is acknowledge and the end of the case the jurors who were seated were given in court and the instructions and at that time he did not get the instruction on the defendant's right not to present evidence because again he did so that was not a necessary instruction and when looking  totality again of the circumstances it is fair to look at the fact that they were told of all of these not during the questioning period but they were told initially and repeatedly throughout that initial addressed by the t they were instructed correctly at the end and the fact of the matter is the instruction that was left out was the fact that defendant didn't need to prevent it if he sent a defense and the fact is he did so this is why plane air is clearly not only the necessary reveal but the appropriate one structural they are as has been stated is such a enormous error that it does affect the integrity and so far the categories of structural they are included complete denial of counsel denial of self representation a trial trial for a biased judge not a public trial of racial discrimination in the selection of the jury and the defective reasonable doubt instruction  that does not even begin to compare to the error that happened here when what is your source for them list of this was taken out of a supreme court case in it was kind of conglomeration washington versus i don't know if i can fairly answer that i think that clearly where a defendant doesn't testify and the jury has been made aware of casting pensions that would play on his credibility and make them possibly emissions to litigants and things and in most of those decisions as i recall not using the exact words has not been a problem because sometimes the exact words are legal least it might not be understandable to someone standing in front of you what do you think about this particular situation i think that not the clearest words i mean i recognize that but i think that they still accurately reflect what was supposed to be told and i think they also accurately gave all of the jurors the opportunity to say i'm not sure if i understand that he didn't have to prove anything he didn't have to testify to anything it was very clear and that statement in a very brief way indicates it was the state's responsibility to prove the defendant guilty it was not the defendant's responsibility to do other things to prove his innocence did it cover i mean could it could it be reasonably said to cover all fo principles or would only cover up maybe not present evidence not testify on his own behalf do you think it could could be an umbrella to cover all four principles i think that it could i don't think in if and again i apologize if i have the facts wrong in this case my understanding is that that phrase was not used to apply to all four of them it was only applying to the not being required to i think just to testify and again acknowledging that it didn't apply to not having to present evidence since that was not asked i think it would be difficult if that was it would be a more difficult challenge on my part to say that it is correct it did apply to all of them but that was not  was in changing the rules if not to imply for me that there should be strict compliance with i agree the change in the supreme court rule was to put the burden on the judge to see that of the jurors were told of this rather than waiting for the defense counsel to ask for them but that being said as most supreme court rules are on the shoulders of the trial judge to give the admonishments to give the instructions in this case to give the fourth thirty as they said that they found these four questions to be important essential questions i and again the ship being there prior to that there was nothing importance placed on them and it was left to the defendant to decide whether he or she felt they were important enough to be presented to the jury i think clearly that the ruling indicates they are important and they are important in all cases to ensure a fair trial and that the jurors are fairly handled so that the defendant could get a fair trial that is the goal but as with other rules and here it is still it's not an hour for a defendant to sit back and say i recognize an air but it's not our responsibility to bring it to the trial court's attention when they fail to do that we still go through a plain error analysis when it isn't a structural there and this is not a structural there all other errors are amenable to harmless error analysis so we have as you said the first prong the closely balanced evidence is not an issue here under the second prong it is the defendant's burden to establish prejudice there's been no even attempt to establish prejudice simply rather they're relying on the fact that they disagree with my position in argue this is structural air this is case and the facts of this case are a prime example of why that is wrong yes there was air but it did not destroy the integrity of the process the error here was not telling the jury defendant didn't have to present evidence defendant's presenting evidence so what more again it would have it in hindsight been an instruction to the court that although it would have been proper and it was the right thing to do it would not have been something for the jury to consider during deliberations we need to keep in mind defendant doesn't have to present evidence because he did the exact reason that the instruction at the end prior to deliberation was not given it was moot we didn't need to instruct him about that and again i don't want this to be taken as the suggesting that the trial court should be given a pass but we do have to look at all of these facts and on these sets of facts there was no plane error there was no french this on another set of facts it may be the impaneled and this is one of the things that blair took issue with he said now and these are the rights you understand exactly during the panel where they're going to go no that's not what i understand so we don't have that situation here do not meet and get those instructions don't cure any error that did take place but they again are to be considered in determining whether the jury was biased whether the jury was fully informed and there simply are not facts here to support a finding that this should be reversible er and the fact that they held it is not a constitutional right to have for thirty one that's not limited to the way it was before and this is not limited to who has the responsibility to bring it to some of the ld doesn't have to be repeated then she each person is they come up or can the judge say did you hear me ask those questions the answer is yes do you have any issues with those