cases there are that would suggest that a statement of such a young kid who i thought was maybe five to one statement of a little kid to the police if taken down should be viewed as testimonial i'm not aware of any specific cases you're out on that point nor am i aware of any exceptions to the rule we know that in such cases we routinely park children to get on the stand that are in this age range and there was no indication that this child did not know what the truth was or anything along those lines the confrontation clause the sixth amendment does not make any exception for age except for the fact if we have a witness use that as a testimonial statement i think your honor i understand your point but to the contrary this kind of a statement if it's used is legal dynamite because number one there's a lot of people out there that still believe that children don't lie and if there's no way to a cross examine that statement and of course the government doesn't have to put the statement on they could use that statement to develop other investigative lea well there's no doubt in this case your honor the truck council for my client completely dropped the ball this is classic quote essential examples of i c and i think i cited in the reply brief the best that i could the fact that once the superior court judge examines this and decides to address the son the merits this basically dissipates the procedural bar and there's also a law that says that i see by its own definition goes around the procedural bar i mean it kind of begs the question of the  it's i think it is completely unreasonable for also for the reasons i pointed out of my brief there was no longer any kind of an emergency you know it's clear from the record in this case that my kind of been arrested and he was arrested somewhere to towards the same ground action the child's evidence i think again for the reasons i previously indicated was absolutely the most important in the entire case the government themselves indicated i forget what's  prejudiced question here again i would point out that the that moment of the boy almost ducktails a lot of these particular charges it goes right to a threat you know that he had hit his mother he said he could kill mom when everyone it ok one of those convictions is for just with this winning a witness by use of force or threat i mean that's really going right to the ultimate issue there the d a in opening statement talks extensively about the five year old boy statement and talks again about it very extensively in closing argument and indicating that none of the parties are saying that the boy here is even lying there's a read back of officer floor says testimony which contains in it the statement of the boy in this particular case so seems like all of that you know it just it would it's a real stretch to say that this is harmless that it certainly had a substantial injurious cool if you're when you finish on on the harmlessness issue i have a fairly precise legal question for you about aid about the a d p i don't know if you had or reviewing a state prisoners kind so the question i have is is there clearly established supreme court authority on whether a young child statements can be viewed as testimonial within the meaning of the confrontation clause that's one question and then a follow up question and my my understanding that's why i asked a question earlier is i'm not aware of resolve whether a kid statements were testimonial and if that's true if they granted cert in the case to address that wouldn't that suggest that the law isn't clearly established i'd appreciate it if this becomes the pivotal point in the resolution of this case i would certainly request to have an opportunity to look at that closer i just i guess the sum up at this point in the last day on it has to be this just seems to be class the confrontation it's they presented a witness and there was no opportunity at all to get at that witness to find out again we have these things taking place over a time period it is like it happened on and off an hour an hour and it could be we have a five year old child and we have a five year old child that could have been angry with his father because he witnessed some these things and so this is the danger that crawford goes on and talks about not need to be cooperated the jury at trial heard the evidence that challenge her challenge her testimony and they evidently believed that much of it was true well you very briefly i would just reiterate that i think crawford and the doctors that we're talking about arched removed while stablish with the supreme court is probably no clear areas of law there's nothing in the constitution it's about specific ages or children or individuals now if the court is going to carve out something and change the well stablished law that may be what happens here but at least up to this point we do have a confrontation clause and we don't have any exceptions for older or younger individuals in this  case looking at this from a pretty different perspective the entire case how would this case before trial attorney i would submit that assume that statement comes then by that five year old kid it's over that in and of itself is pretty much really all you need to make the case michael becomes surplusage not the other way around it's not a question across racial in this particular case it's a question of he was the best witness and he was the unsworn witness in the end present witness there was lots of evidence about the problems with monica and her schizophrenia and her inconsistencies but the five year old kid sealed the deal and there was no way that the fence could rebut that testimony so for these reasons it is harmful error and it should be reversed