have reviewed the record there are multiple places where that position taken he states have a record of one point that we concede that the victim was subject to cross examination we can see that he was here and available so my other thing if if the past year changed and the witness was suddenly gonna fail then should the defense attorney still proceed with the strategy that perhaps is a very good sound one or to the judge judge we want a new hearing out outside the presence of the jury because we truly believe that this witness is not available and that's up to cross examination so that the court in its wisdom could correct the error of  ways in other words the court here ruled that this these statements were going to be allowed if the witness testified and was available so if if the defense attorney feel suddenly that you know i don't have any opportunity to cross examine but the state was not in a position to proceed back way because everyone had framed this differently is it unfair to the traffic court now to say you should have done something different when no one was jumping up and screaming and saying he years old doesn't really want to hear anything with this fact now there's multiple cases now that say if crawford is not violated here because that that child was there whether they give you what you want or whether they are able to answer your questions if they're there and you can ask them questions and you don't then there is no violation of property because there was a bail ability the person testified in court number we have here well in this we're going sort of off the record with this occurred now if there had been this hearing where the judge could have determined that the child was not available then the state would have been required to to use those statements there would have to be been under the impression that there was going to be it on availability probably a lack of ability to cross examine could the court can then require the state to submit other proof that would be required w i know that it didn't seem that anyone really addressed this question that i'm raising and that is the health of when everybody's posture first certain type of proceeding and what we've got is a situation where in the land us you have the state making a concession on appeal that no one can understand but they do that there was here in that same proceeding because you took a position inconsistent with here so it is sort of a variation of a waiver argument but it's generally this notion that if you try case and you present it as you know the five was there he he didn't tell you anything you didn't there's no evidence of the crime you should believe the act and believe his testimony that then he can't come here and say well you know what he really wasn't available clearly argue and many good fine professional attorneys have argued that this child that happens and that he told you to act when he testified i'm not suggesting for one second   we can't we can't talk about proper racial and no one know what brought this notion to the court at any time before or after even in the motion for a new trial so well i think there was i think that  understand your argument now that there was no testimony that that frank heard from anyone so that's but now i mean we really do have to hear from the other side in the last there's something more that you need to tell us about that you're basically arguing none of these require i don't recall i don't recall i don't recall you say he still available because the defendants had an opportunity or the defense attorney had an opportunity to tease the information out of but he decided to cross examination i hose a real problem because when the supreme court says that you know memory loss is often the very result sought to be produced by cross examination and can be effective  destroying the force the prior state that these cases are you have a child can't remember anything and then you're using these other statements from other witnesses to present your case but the to rehabilitate it in order to ensure availability when what he's trying to convince everybody of is the biggest that available why should he have to say anything other then after you directly examined  judge we we should put on some rock radio evidence should we try to get that brother who saw this coming and this is this the kind of situation that we should be you know reaching when everybody kind of  let it go so should we now say that the trial should have been conducted with a different fashion where the trial judge who's in charge of conducting this is never given the opportunity to faced this issue was this trial truly unavailable instead we're being asked to now redo something that could have been addressed at the trial of a right as proper right now it's an adequate opportunity to cross examine and when looking at the defense counsel's cross examination he was given adequate opportunity and for whatever reason he pursued it in the direction he did but i just want to show that this porch is visible this child testified that i was touched and that he was touched by the it if they have a hearing did that did they stop and say that they did they say that this victim is unavailable that's a very good question i'm pretty sure i can