State v. Arnold

[Cite as State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742.]

THE STATE OF OHIO, APPELLEE, v. ARNOLD, APPELLANT.

[Cite as State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742.]

Statements made to interviewers at child-advocacy centers that serve primarily a

forensic or investigative purpose are testimonial and are inadmissible

pursuant to the Confrontation Clause — Statements made to interviewers

at child-advocacy centers that are made for medical diagnosis and

treatment are nontestimonial and are admissible without offending the

Confrontation Clause.

(No. 2008-1693 — Submitted September 1, 2009 — Decided June 17, 2010.)

APPEAL from the Court of Appeals for Franklin County,

No. 07AP-789, 2008-Ohio-3471.

__________________

SYLLABUS OF THE COURT

1. Statements made to interviewers at child-advocacy centers that serve primarily

a forensic or investigative purpose are testimonial and are inadmissible

pursuant to the Confrontation Clause when the declarant is unavailable for

cross-examination.

2. Statements made to interviewers at child-advocacy centers that are made for

medical diagnosis and treatment are nontestimonial and are admissible

without offending the Confrontation Clause.

__________________

O’CONNOR, J.

{¶ 1} Appellant, Michael Arnold, appeals his conviction for raping his

four-year-old daughter, M.A. Arnold argues that statements that M.A. made to

social worker Kerri Marshall at the Center for Child and Family Advocacy at

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Nationwide Children’s Hospital (“CCFA”) were admitted contrary to his rights

under the Confrontation Clause of the Sixth Amendment to the United States

Constitution and Section 10, Article I of the Ohio Constitution. The court of

appeals affirmed Arnold’s conviction, holding that Marshall did not act as an

agent of the police when she questioned M.A. and that M.A.’s statements during

the interview were nontestimonial.

{¶ 2} In interviewing M.A. at the CCFA, Marshall occupied dual

capacities: she was both a forensic interviewer collecting information for use by

the police and a medical interviewer eliciting information necessary for diagnosis

and treatment. We hold that statements made to interviewers at child-advocacy

centers that are made for medical diagnosis and treatment are nontestimonial and

are admissible without offending the Confrontation Clause. Thus, we affirm the

judgment of the court of appeals to the extent that M.A.’s statements to Marshall

for the purpose of medical treatment and diagnosis were properly admitted. We

further hold that statements made to interviewers at child-advocacy centers that

serve primarily a forensic or investigative purpose are testimonial and are

inadmissible pursuant to the Confrontation Clause. We agree with Arnold that the

trial court erred in admitting the forensic statements made by M.A. to Marshall

and reverse the court of appeals insofar as it held that these forensic statements

were admissible. However, because the court of appeals did not consider whether

the admission of M.A.’s forensic statement to Marshall was harmless, we remand

this case to the court of appeals to consider this issue.

Relevant Background

{¶ 3} In December 2005, Arnold and Wendy Otto lived together in

Hilliard, Ohio, with their two young children. Otto testified that upon awakening

one night, she discovered that Arnold and their four-year-old daughter, M.A.,

were locked in a bedroom. Otto demanded that Arnold unlock the door, and when

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he did, she observed that his boxer shorts were halfway off. Otto also observed

that M.A.’s underwear was around her ankles. She suspected sexual abuse,

demanded that Arnold leave the premises, and called 9-1-1. Arnold left

immediately. By the time paramedics arrived, many police officers were present.

M.A. told firefighter-paramedic Charles Fritz that she had been touched in her

private area.

{¶ 4} Paramedics took Otto and M.A. to Nationwide Children’s Hospital,

where evidence for a rape kit was collected. While at the hospital, Otto was

advised to take M.A. to the CCFA the next day. The record is unclear whether

this advice came from the police, paramedics, hospital personnel, or some other

source. At some point that night, M.A. was released.

{¶ 5} The next morning, Otto took M.A. to the CCFA. The CCFA is part

of Children’s Hospital and is located across the street from the main hospital. At

the CCFA, Marshall, a Nationwide Children’s Hospital employee, interviewed

M.A. M.A.’s responses to Marshall’s questions indicated that she had been

sexually abused. This interview is at the heart of Arnold’s Confrontation Clause

claim.

{¶ 6} The interview yielded a variety of relevant information. For

example, M.A. stated that Arnold's “pee-pee” went inside her “pee-pee” and that

Arnold’s mouth touched her “pee-pee.” These statements were necessary for

M.A.’s medical evaluation and treatment. But M.A. also answered questions that

related to the ongoing investigation. For example, in response to Marshall’s

questions, M.A. stated that Arnold closed and locked the bedroom door before

raping her and that Arnold removed her underwear.

{¶ 7} After the interview with Marshall, M.A. was physically examined by

a pediatric nurse practitioner, Gail Horner, a hospital employee who worked in the

CCFA. Horner found two abrasions to M.A.’s hymen, which she concluded had

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been caused by acute trauma, likely from penetration, within the previous 24 to 72

hours. Horner testified that the abrasions were “diagnostic” of sexual abuse.

{¶ 8} Based on this and other information, including Otto’s testimony,

Arnold was indicted on two counts of rape in violation of R.C. 2907.02. The first

count charged rape by vaginal intercourse; the second charged rape by

cunnilingus.

{¶ 9} At trial, the court determined that M.A. was unavailable to testify.

After watching the DVD recording of M.A.’s interview with Marshall, the court

determined that the statements had been made for the purpose of medical

diagnosis and were admissible hearsay under Evid.R. 803(4). The court also

determined that the statements were not barred by the Confrontation Clause.

Accordingly, the DVD was played for the jury.

{¶ 10} The jury found Arnold guilty of rape by vaginal intercourse, but not

guilty of rape by cunnilingus. R.C. 2907.02. Arnold was sentenced to life in

prison.

{¶ 11} On appeal, the Tenth District affirmed Arnold’s conviction. State

v. Arnold, Franklin App. No. 07AP-789, 2008-Ohio-3471. We accepted Arnold’s

discretionary appeal to determine whether, in a criminal prosecution, the out-of-

court statements made by a child to an interviewer employed by a child-advocacy

center violates the right to confront witnesses provided by the Sixth Amendment

to the United States Constitution and Section 10, Article I of the Ohio

Constitution. State v. Arnold, 120 Ohio St.3d 1452, 2008-Ohio-6813, 898 N.E.2d

967.

Analysis

Confrontation Clause

{¶ 12} “The Sixth Amendment's Confrontation Clause provides that, ‘[i]n

all criminal prosecutions, the accused shall enjoy the right * * * to be confronted

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with the witnesses against him.’ We have held that this bedrock procedural

guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380

U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).” Crawford v. Washington

(2004), 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177. “Section 10, Article I

[of the Ohio Constitution] provides no greater right of confrontation than the

Sixth Amendment.” State v. Self (1990), 56 Ohio St.3d 73, 79, 564 N.E.2d 446.

{¶ 13} In Crawford, the Supreme Court of the United States considered

whether the introduction of a hearsay statement admissible under state law

violated a defendant’s Sixth Amendment right to confront the witnesses against

him. The court held that out-of-court statements violate the Sixth Amendment

when they are testimonial and the defendant has had no opportunity to cross-

examine the declarant. 541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177. See

also State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, ¶ 21-26.

The court did not comprehensively define “testimonial” but stated that the core

class of testimonial statements includes statements “ ‘that were made under

circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial.’ ” Crawford, 541 U.S. at

52, quoting Brief of Amicus Curiae National Association of Criminal Defense

Lawyers 3. Accord State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855

N.E.2d 834, paragraph one of the syllabus. The court emphasized that the

objective-witness test was but one of many possible ways to determine whether a

statement is testimonial, and it expressly stated, “We leave for another day any

effort to spell out a comprehensive definition of ‘testimonial.’ ” Crawford, 541

U.S. at 68.

{¶ 14} Two years later, in Davis v. Washington (2006), 547 U.S. 813,

821, 126 S.Ct. 2266, 165 L.Ed.2d 224, the court considered whether a caller’s

responses to a dispatcher’s interrogation during a 9-1-1 telephone conversation

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were testimonial when the caller failed to appear to testify at trial. The court

stated (1) that the statements described the events as they were happening, as

opposed to explaining events that had happened in the past, (2) that any

reasonable listener would conclude that the statements were made in the face of an

ongoing emergency, (3) that the interrogation was objectively necessary to resolve

the ongoing emergency, and (4) that the interrogation was informal because it was

conducted over the phone and the answers were provided frantically while in an

unsafe environment. Id. at 827. The court concluded that the circumstances

surrounding the interrogation “objectively indicate [that] its primary purpose was

to enable police assistance to meet an ongoing emergency. [The caller] simply was

not acting as a witness; she was not testifying.” (Emphasis sic.) Id. at 828.

Accordingly, the court concluded that the caller’s hearsay statements were not

testimonial and, therefore, that they were not barred by the Sixth Amendment. Id.

at 829.

{¶ 15} In Davis, the court also considered a second case in which a

domestic-violence complainant did not appear at trial. Id. at 819-820. The police

officer who interviewed the victim at the scene of the incident and who witnessed

her complete and sign an affidavit concerning the abuse testified at trial in order to

authenticate the affidavit. Id. at 820. The court determined (1) that the

interrogation sought to determine what had happened, not what was happening,

(2) that there was no ongoing emergency, (3) that the interrogation was not needed

to resolve an emergency, and (4) that the interrogation was “formal enough” that it

was conducted in a room separate from the complainant's husband. Id. at 830.

The court concluded that “[i]t is entirely clear from the circumstances that the

interrogation was part of an investigation into possibly criminal past conduct – as,

indeed, the testifying officer expressly acknowledged.” Id. at 829. Accordingly,

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the court concluded that the hearsay evidence was testimonial and, therefore, that

it was barred by the Sixth Amendment. Id. at 834.

{¶ 16} The court held that “[s]tatements are nontestimonial when made in

the course of police interrogation under circumstances objectively indicating that

the primary purpose of the interrogation is to enable police assistance to meet an

ongoing emergency. They are testimonial when the circumstances objectively

indicate that there is no such ongoing emergency, and that the primary purpose of

the interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” Id. at 822. Accord Siler, 116 Ohio St.3d 39, 2007-Ohio-

5637, 876 N.E.2d 534, paragraph one of the syllabus.

Stahl, Muttart, and Siler

{¶ 17} In Stahl, this court considered whether hearsay statements by a rape

victim to a nurse practitioner during a medical examination at a hospital DOVE1

unit were admissible when the victim was not available to testify at trial. Stahl,

111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶ 1. The defendant

argued that the statements violated his Sixth Amendment right to confront

witnesses. Id. at ¶ 1, 9. This court distinguished Davis, stating: “They involve

statements made to law-enforcement officers, while the statement at issue here

covers one made to a medical professional at a medical facility for the primary

purpose of receiving proper medical treatment and not investigating past events

related to criminal prosecution.” (Emphasis sic.) Id. at ¶ 25. We concluded that

the primary purpose of the examination was to receive medical treatment, not to

investigate past events, applied the objective-witness test outlined in Crawford,

and held that the challenged statements were nontestimonial. Id. at ¶ 47, 48.

1. “DOVE” stands for “Developing Options for Violent Emergencies.” Stahl, 111 Ohio St.3d

186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶ 2. The unit specializes in health-care services for

victims of sexual assault and domestic disturbances. Id.

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{¶ 18} In State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d

944, a child victim of sexual abuse was interviewed by a social worker at a child-

advocacy center. Id., ¶ 14-15. As in the case before us now, the social worker

interviewed the child before she was examined by a doctor. Id., ¶ 15. During the

interview, the child disclosed to the social worker that her father had put his penis

in her mouth and had “ ‘put his pee-pee in her pee-pee.’ ” Id., ¶ 16. The child

also disclosed that similar conduct had happened “ ‘a whole bunch of times.’ ” Id.

We held that the child’s statements were nontestimonial because “[s]tatements

made to medical personnel for purposes of diagnosis or treatment are not

inadmissible under Crawford.” Id., ¶ 63. This is true because statements for

medical diagnosis and treatment “are not even remotely related to the evils that

the Confrontation Clause was designed to avoid.” Id.

{¶ 19} In Siler, we considered whether statements made by a child to a

sheriff's deputy in the course of a police interrogation were testimonial. Siler, 116

Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, at ¶ 2. We concluded that “the

statements made to the deputy sheriff were testimonial because the circumstances

objectively indicate that no ongoing emergency existed and that the primary

purpose of the police interrogation was to establish past events potentially relevant

to a later criminal prosecution.” Id. We held that courts in Ohio should apply the

primary-purpose test set forth in Davis to determine “whether a child declarant's

statement made in the course of police interrogation is testimonial or

nontestimonial.” Id. at paragraph one of the syllabus, citing Davis, 547 U.S. at

821-822, 126 S.Ct. 2266, 165 L.Ed.2d 224.

Other State Supreme Court Decisions

{¶ 20} Since Crawford, many state supreme courts have considered

whether statements made by children during interviews at child-advocacy centers,

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or their functional equivalent, are testimonial and whether statements by child

victims of sexual abuse for medical diagnosis and treatment are testimonial.

{¶ 21} We recognize that a number of those decisions held that statements

by child-sexual-abuse victims at child-advocacy centers or their functional

equivalent are testimonial and, therefore, inadmissible pursuant to the

Confrontation Clause and Crawford when the defendant has no opportunity to

cross-examine the victim at trial. See, e.g., State v. Contreras (Fla.2008), 979

So.2d 896; State v. Hooper (2007), 145 Idaho 139, 176 P.3d 911; In re Rolandis

G. (2008), 232 Ill.2d 13, 327 Ill.Dec. 479, 902 N.E.2d 600; State v. Bentley (Iowa

2007), 739 N.W.2d 296; State v. Henderson (2007), 284 Kan. 267, 160 P.3d 776;

State v. Snowden (2005), 385 Md. 64, 867 A.2d 314; State v. Justus (Mo.2006),

205 S.W.3d 872; State v. Blue, 2006 ND 134, 717 N.W.2d 558. But in each of

these cases, the interviews were conducted solely for forensic purposes. The

situation we are presented with in this case is distinct from those considered in the

above-cited cases. Here we are asked to determine whether statements that contain

distinct forensic and medical diagnostic information and were made to a social

worker during one interview implicate the Confrontation Clause. For example, in

Contreras, the Florida Supreme Court held that a statement taken by the

coordinator of a “child protection team” (“CPT”) was testimonial. Id. at 905. The

interview was conducted and videotaped at a shelter for victims of domestic

violence, and a police officer was connected electronically to the CPT coordinator

in order to suggest questions. Id. There was no evidence that the child received

medical treatment based on the interview. The court held that “the primary, if not

the sole, purpose of the CPT interview was to investigate whether the crime of

child sexual abuse had occurred, and to establish facts potentially relevant to a

later criminal prosecution.” Id.

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{¶ 22} Similarly, the Illinois Supreme Court excluded statements made in

a forensic interview when there was “absolutely no indication that * * * [the]

interview * * * was conducted, to a substantial degree, for treatment rather than

investigative purposes.” In re Rolandis G., 232 Ill.2d at 33, 327 Ill.Dec. 479, 902

N.E.2d 600. In that case, after stating that an older child forced him to perform

fellatio, a six-year-old was taken to a child-advocacy center and was interviewed

by a child advocate. Id. at 19. The interview was video recorded and observed by

a detective through a one-way mirror. Id. As with Contreras, there was no

indication that the child received a medical evaluation or treatment based on the

interview. The Illinois Supreme Court concluded that “the interview took place at

the behest of the police so that a more detailed account of the alleged sexual abuse

could be obtained by a trained interviewer and memorialized on videotape” and

held that the child’s statements were testimonial. Id. at 32.

{¶ 23} In Hooper, the Idaho Supreme Court excluded statements in a

video-recorded forensic interview taken at a Sexual Trauma Abuse Response

Center (“STAR”). 145 Idaho at 141, 176 P.3d 911. In that case, a child was taken

to the STAR center after her mother discovered the child and her father locked in

the bathroom and suspected sexual abuse. Id. at 140. Upon arrival at the STAR

center, the child met with a doctor and the doctor conducted a sexual-abuse

examination. Id. at 141. After the medical examination, a forensic interviewer

conducted a video-recorded interview with the child, which a detective observed

via a closed-circuit system. Id. Because the interview occurred after the child met

with and was examined by the physician, the subsequent interview served a

forensic, not a medical or treatment-oriented, purpose.

{¶ 24} In the same vein, the Kansas Supreme Court held that a child’s

statements during an interview conducted by a detective and a social worker, both

members of the Exploited and Missing Children Unit, were testimonial.

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Henderson, 284 Kan. at 294, 160 P.3d 776. In Henderson, a mother took her

three-year-old daughter to a medical clinic after noticing discharge from the

child’s vagina and after the child complained that her “potty place” hurt. Id. at

269. Test results revealed that the child had gonorrhea. Id. After learning about

the test results, the detective and social worker interviewed the child, who

disclosed that her mother’s boyfriend had “touched her ‘potty in a bad way.’ ” Id.

at 270. This interview was video and audio recorded. Id. Again, there is no

indication that the child received additional medical treatment based on the

interview.

{¶ 25} These cases that stand for the proposition that the admission of

statements obtained during interviews at CACs or their functional equivalents

result in violations of the Confrontation Clause when the declarant is unavailable

at trial arise from scenarios in which the statements at issue were solely for

forensic purposes, rather than for ameliorative or therapeutic ones.

{¶ 26} In the latter category, our sister courts hold that statements made by

child-sexual-abuse victims for the purpose of medical diagnosis and treatment are

not testimonial and, therefore, do not implicate the Confrontation Clause even if

they are used subsequently by the state in a prosecution. Seely v. State (2008),

373 Ark. 141, 282 S.W.3d 778 (holding that a child’s statements about abuse to a

social worker at a children’s hospital before the child was examined by a doctor

were nontestimonial); State v. Arroyo (2007), 284 Conn. 597, 935 A.2d 975

(holding that statements made to a social worker were nontestimonial because the

primary purpose of the interview was to provide medical assistance to the child);

State v. Krasky (Minn.2007), 736 N.W.2d 636 (holding that a child’s statements

to a nurse alleging sexual abuse were nontestimonial because the nurse’s primary

purpose was to assess and protect the child’s health and welfare); State v. Spencer,

339 Mont. 227, 2007 MT 245, 169 P.3d 384 (holding that statements to a

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counselor regarding sexual abuse were nontestimonial); People v. Vigil

(Colo.2006), 127 P.3d 916 (holding that responses to questions by a doctor as part

of a sexual-assault examination were nontestimonial); Commonwealth v.

DeOliveira (2006), 447 Mass. 56, 849 N.E.2d 218 (holding that statements to a

physician were made for the purposes of medical evaluation and treatment and

were not testimonial); Hobgood v. State (Miss.2006), 926 So.2d 847 (holding that

a child’s description of sexual abuse to his doctor was not given for the purpose of

prosecuting the accused and was not testimonial); State v. Vaught (2004), 268

Neb. 316, 682 N.W.2d 284 (holding that a child’s statements to an emergency-

room physician identifying the perpetrator of sexual assault were nontestimonial).

{¶ 27} With this background in mind, we turn to whether M.A.’s

statements to Marshall were testimonial.

{¶ 28} Pursuant to Stahl, Muttart, and Siler, to determine whether M.A.’s

statements to Marshall were testimonial, we must identify the primary purpose of

the statements. Statements made for the purpose of medical diagnosis and

treatment are nontestimonial. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875

N.E.2d 944, ¶ 63. However, statements made to agents of the police for the

primary purpose of forensic investigation are testimonial. Siler, 116 Ohio St.3d

39, 2007-Ohio-5637, 876 N.E.2d 534, at ¶ 2.

Child-Advocacy Centers and the CCFA

{¶ 29} The objective of a child-advocacy center like the CCFA is neither

exclusively medical diagnosis and treatment nor solely forensic investigation. “

‘The purpose of a Children’s Advocacy Center is to provide a comprehensive,

culturally competent, multidisciplinary response to allegations of child abuse in a

dedicated, child friendly setting.’ ” Nancy Chandler, Children’s Advocacy

Centers: Making a Difference One Child at a Time (2006), 28 Hamline J.Pub.L.

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& Policy 315, quoting National Children’s Alliance, Accreditation Guidelines for

Children’s Advocacy Centers (2004) 5.

{¶ 30} “Prior to the development of the Children’s Advocacy Center

model, ‘traditional child abuse investigations often subject(ed) the child to

multiple interviews.’ ” Id. at 332, quoting Lisa Snell, Child Advocacy Centers:

One Stop on the Road to Performance-Based Child Protection (June 2003) 1. A

child-advocacy center’s “ ‘number one goal’ ” is to reduce trauma to a child-abuse

victim by coordinating the interview to include professionals from multiple

agencies, which, in turn, can reduce the number of interviews needed and improve

the quality of the investigation, the diagnosis, and the recommendation for

treatment. Id. at 323. Additionally, “ ‘[t]hey help children avoid the trauma of

repeating their story at various stops along the legal and judicial path.’ ” Id.

These interdisciplinary teams often include law-enforcement professionals,

prosecutors, medical and mental-health personnel, and child advocates. Id. at 324.

{¶ 31} At the CCFA, Marshall, a social worker employed by Nationwide

Children’s Hospital, interviews children who are suspected victims of physical or

sexual abuse. The purpose of the interview is to gather as much information as

possible. The interview is both recorded on a DVD and transmitted to another

room via closed-circuit television. Typically, a nurse practitioner or doctor, a

children’s services caseworker, and a law-enforcement representative watch the

interview from a separate room. Marshall does not inform the child that the team

members are watching the interview, but does tell him or her that he or she will be

examined by a doctor or nurse after the interview.

{¶ 32} After Marshall interviews the child, she meets with the doctor or

nurse practitioner who will perform the medical examination to review the child’s

statements. The nurse or doctor conducts the appropriate medical examination

based on the child’s statements during the interview. The nurse or doctor relies

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on information obtained during Marshall’s interview to determine what

examination and tests are needed. For example, information regarding the identity

of the perpetrator, the age of the perpetrator, the type of abuse alleged, and the

time frame of the abuse allows the doctor or nurse to determine whether to test the

child for sexually transmitted infections.

The Interviewer’s Dual Capacity

{¶ 33} Child-advocacy centers are unique. Multidisciplinary teams

cooperate so that the child is interviewed only once and will not have to retell the

story multiple times. Most members of the team retain their autonomy. Neither

police officers nor medical personnel become agents of the other. However, to

ensure that the child victim goes through only one interview, the interviewer must

elicit as much information from the child as possible in a single interview and

must gather the information needed by each team member. Thus, the interview

serves dual purposes: (1) to gather forensic information to investigate and

potentially prosecute a defendant for the offense and (2) to elicit information

necessary for medical diagnosis and treatment of the victim. The interviewer acts

as an agent of each member of the multidisciplinary team.

1

{¶ 34} Certainly, some of the statements that M.A. made to Marshall

primarily served a forensic or investigative purpose. Those statements include

M.A.’s assertion that Arnold shut and locked the bedroom door before raping her;

her descriptions of where her mother and brother were while she was in the

bedroom with Arnold, of Arnold’s boxer shorts, of him removing them, and of

what Arnold’s “pee-pee” looked like; and her statement that Arnold removed her

underwear. These statements likely were not necessary for medical diagnosis or

treatment. Rather, they related primarily to the state’s investigation. Marshall

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effectively acted as an agent of the police for the purpose of obtaining these

statements.

{¶ 35} Because Marshall acted as an agent of the police in obtaining these

statements, pursuant to Davis and Siler, we must employ the primary-purpose test

to determine whether the primary purpose of the interrogation was “ ‘to enable

police assistance to meet an ongoing emergency.’ ” Siler, 116 Ohio St.3d 39,

2007-Ohio-5637, 876 N.E.2d 534, at paragraph one of the syllabus, quoting

Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224. We hold that it was

not. First, the statements involved a description of past events. The alleged abuse

occurred the previous evening, and the questioning specifically attempted to

obtain a description of the abuse. Second, a reasonable observer would not

perceive an ongoing emergency at the time of questioning. The patient had been

discharged from the hospital the previous evening. At oral argument, counsel

conceded that no medical emergency existed at the time of Marshall’s interview.

Third, the questioning was not objectively necessary to resolve an emergency

because there was no ongoing emergency. Finally, the interview was rather

formal, more akin to the videotaped, planned interview of Crawford than to the

frantic 9-1-1 call or the sequestered but spur-of-the-moment interview recounted

in Davis.

{¶ 36} The primary purpose of that portion of the interview was not to

meet an ongoing emergency but, rather, to further the state’s forensic

investigation. Thus, these statements were testimonial in nature and their

admission without a prior opportunity for cross-examination is prohibited by the

Confrontation Clause. Crawford, 541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d

177.

2

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{¶ 37} Although the statements obtained during Marshall’s interview of

M.A. that related primarily to the state’s forensic investigation are testimonial and

thus inadmissible pursuant to Crawford, other statements provided information

that was necessary to diagnose and medically treat M.A. The history obtained

during the interview is important for the doctor or nurse practitioner to make an

accurate diagnosis and to determine what evaluation and treatment are necessary.

For example, the nurse practitioner conducts a “head to toe” examination of all

children, but only examines the genital area of patients who disclose sexual abuse.

That portion of the exam is to identify any trauma or injury sustained during the

alleged abuse.

{¶ 38} M.A.’s statements that described the acts that Arnold performed,

including that Arnold touched her “pee-pee,” that Arnold’s “pee-pee” went inside

her “pee-pee,” that Arnold’s “pee-pee” touched her “butt,” that Arnold’s hand

touched her “pee-pee,” and that Arnold’s mouth touched her “pee-pee,” were thus

necessary for the proper medical diagnosis and treatment of M.A.

{¶ 39} In his dissent, Justice Pfeifer states that he is troubled by our

conclusion that these statements were medically necessary because M.A. had been

examined at the hospital on the night of the rape. However, although M.A. was

taken to the hospital on the night of the rape, the record establishes only that a

rape-kit examination was performed, not that she was examined for medical

diagnosis or treated. M.A. was referred to the CCFA for further medical

examination and treatment. Justice Pfeifer also contends that the nurse

practitioner who examined M.A. after the interview would have asked all

medically relevant questions during the examination. This is not true. The history

obtained during Marshall’s interview was necessary for the nurse practitioner to

make an accurate diagnosis and to determine what treatment was necessary.

Horner, the nurse practitioner who examined M.A., testified that the “forensic

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interview guides my exam in that it lets me know whether or not I need to test the

child for sexually transmitted infection. For instance, if a child says that a penis

touched their vagina, it means to me that I need to test to make sure that child

didn’t get a sexually transmitted infection.”

{¶ 40} In eliciting these medically necessary statements, Marshall acted as

an agent of the nurse practitioner who examined M.A., not of the investigating

police officers. Because Marshall did not act as an agent of the police in

obtaining these statements, they are not inadmissible pursuant to Davis. Stahl,

111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶ 25, 36.

{¶ 41} Statements made for medical diagnosis and treatment are

nontestimonial. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶

63. There is no basis in the law for concluding that Marshall’s dual capacity

renders statements made by M.A. for the purpose of medical diagnosis and

treatment inadmissible pursuant to the Confrontation Clause. Indeed, in Davis,

the United States Supreme Court acknowledged that the same interview or

interrogation might produce both testimonial and nontestimonial statements.

Davis, 547 U.S. at 828-829, 126 S.Ct. 2266, 165 L.Ed.2d 224. As the court stated

in Davis, “This presents no great problem.” Id. at 829. “[T]rial courts will

recognize the point at which, for Sixth Amendment purposes, statements in

response to interrogations become testimonial. Through in limine procedure, they

should redact or exclude the portions of any statement that have become

testimonial, as they do, for example, with unduly prejudicial portions of otherwise

admissible evidence.” Id.

{¶ 42} Both dissents criticize our reliance on Davis in support of our

conclusion that although M.A.’s forensic statements to Marshall were testimonial,

her statements for the purpose of medical diagnosis and treatment were properly

admitted. First, Justice Pfeifer argues that pursuant to Davis, when evidence

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includes testimonial and nontestimonial statements, the testimonial statements

must be redacted or excluded to avoid violating the defendant’s right to confront

witnesses against him. We agree that M.A.’s testimonial statements should have

been excluded, and we remand the case to the court of appeals to determine

whether the admission of M.A.’s testimonial statements was harmless error.

Next, both dissents argue that our reliance on Davis is erroneous because we

examine the statements on a question-by-question basis and the testimonial and

nontestimonial statements were interspersed, rather than being obtained in

separate and distinct portions of the interview. Justice Pfeifer argues that this will

make it difficult to distinguish the statements that should be redacted from those

that may be properly admitted. However, our guiding consideration is the purpose

for which the statements are made, not the order in which they are obtained.

Finally, both dissents note that unlike in Davis, there was no ongoing emergency

in this case and, therefore, there was no occasion for the questioning in this case

to evolve from nontestimonial to testimonial. Our decision is not based on the

evolution of M.A.’s statements, but on the fact that the statements were made for

different purposes. The fact that Davis involved an evolution from nontestimonial

to testimonial statements does not preclude its application in instances in which an

interview simultaneously serves dual purposes.

{¶ 43} Further, the fact that police officers watched the interview and that

it was recorded does not change the fact that the statements were necessary for

M.A.’s medical diagnosis and treatment. Similarly, the fact that information

gathered for medical purposes is subsequently used by the state does not change

the fact that the statements were made for medical diagnosis and treatment.

Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 62. M.A.’s

statements that were necessary for medical diagnosis and treatment were

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nontestimonial and were properly admitted without violating Arnold’s

Confrontation Clause rights.

Conclusion

{¶ 44} When Marshall interviewed M.A. at the CCFA, she occupied dual

capacities: she was both a forensic interviewer collecting information for use by

the police and a medical interviewer eliciting information necessary for diagnosis

and treatment. We hold that statements made to interviewers at child-advocacy

centers that are made for medical diagnosis and treatment are nontestimonial and

are admissible without offending the Confrontation Clause. Thus, we affirm the

judgment of the court of appeals to the extent that M.A.’s statements to Marshall

for the purpose of medical treatment and diagnosis were properly admitted. We

further hold that statements made to interviewers at child-advocacy centers that

serve primarily a forensic or investigative purpose are testimonial and are

inadmissible pursuant to the Confrontation Clause when the declarant is

unavailable for cross-examination at trial. We agree with Arnold that the trial

court erred in admitting the forensic statements made by M.A. to Marshall and

reverse the court of appeal’s judgment insofar as it held that these forensic

statements were admissible. However, because the court of appeals did not

consider whether the admission of M.A.’s forensic statement to Marshall was

harmless, see State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d

996, we remand the case to the court of appeals to consider this issue.

Judgment affirmed in part

and reversed in part,

and cause remanded.

LUNDBERG STRATTON, LANZINGER, and CUPP, JJ., concur.

PFEIFER and O’DONNELL, JJ., dissent.

BROWN, C.J., not participating.

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__________________

PFEIFER, J., dissenting.

{¶ 45} The majority opinion misconstrues the applicable case law in

reaching its conclusion. I conclude that a forensic interview cannot be both

testimonial and nontestimonial without violating a defendant’s Sixth Amendment

right to confront the witnesses against him.

{¶ 46} The majority opinion ably explains the law of the Sixth

Amendment’s Confrontation Clause as elucidated by various federal and Ohio

cases. I will not redescribe these cases. The majority opinion also fairly

characterizes the case law from other states that it summarizes in the section titled

“Other State Supreme Court Decisions.” I dissent, not based on the majority

opinion’s understanding of the law, but because of the way the majority opinion

applies the law to this case.

{¶ 47} The majority opinion acknowledges that many of the questions

asked by the forensic interviewer, Kerri Marshall, were asked “to gather forensic

information” and are, therefore, testimonial. In Davis v. Washington (2006), 547

U.S. 813, 828-829, 126 S.Ct. 2266, 165 L.Ed.2d 224, the court held that

statements of a witness who is unavailable for cross-examination should be

redacted or excluded to avoid violating the defendant’s right to confront witnesses

against him. The testimonial statements in this case were not redacted or

excluded. Furthermore, the testimonial statements in this case are different from

those discussed in Davis. In Davis, the testimonial statements were made after a

series of nontestimonial statements had concluded. Id. The interrogator in that

case had elicited statements to assist the police in meeting an ongoing emergency:

those statements were nontestimonial, and their admission as evidence was

permissible. Id. After eliciting the initial statements, the interrogator asked a

series of questions attempting to elicit information about the alleged crime. Id. at

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828. The court found “no great problem” with this approach because the

nontestimonial statements were separate and distinct from the testimonial

statements. Id. at 829. The court stated that questioning could evolve from

addressing an emergency to eliciting forensic information. Id. at 828. According

to the Supreme Court, testimonial statements may not be introduced as evidence

and if they are part of a transcript or other document, they must redacted. Id. at

829.

{¶ 48} The majority opinion makes creative use of the Davis opinion.

First, it concludes that the concept of nontestimonial statements evolving into

testimonial statements applies when an interrogator has a dual purpose. Davis

does not support this conclusion. The interrogator in Davis did not have dual

purposes: she had two separate purposes. She completed the questions regarding

the ongoing emergency and then moved on to elicit information that could be used

as evidence. Marshall’s questions, which elicited, in the opinion of the majority,

both testimonial and nontestimonial statements, were interspersed, rendering it

difficult to distinguish those that should be redacted from those that need not be

redacted. Second, in this case there was no ongoing emergency. The emergency

occurred the night before, so there was no occasion for the questioning to evolve

from eliciting nontestimonial statements to eliciting testimonial ones. Third, the

testimonial statements in this case, which the majority opinion concedes exist,

were not redacted. The majority opinion relies on Davis, but only to the extent

that Davis suits its purposes.

{¶ 49} Although remanding the cause to enable the court of appeals to

determine whether the error is harmless is better than finding it harmless, we

should do neither. It is clear from the record that the error in this case was not

harmless. In State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d

996, ¶ 78, we stated that the determination of whether a constitutional error is

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harmless “is not simply an inquiry into the sufficiency of the remaining evidence.

Instead, the question is whether there is a reasonable possibility that the evidence

complained of might have contributed to the conviction.” It is patently obvious

that the testimonial statements in this case “might have contributed to the

conviction.”

{¶ 50} Another troubling aspect of the majority opinion is its implicit

conclusion that Marshall’s questions were medically necessary. Although I

concede that they may have been helpful, they were not necessary. First, a doctor

had examined M.A. the previous evening. That doctor would have done and

asked everything necessary to treat M.A. at that time. See State v. Hooper (2007),

145 Idaho 139, 141, 176 P.3d 911, about which the majority opinion states,

“Because the interview occurred after the child met with and was examined by the

physician, the subsequent interview served a forensic, not a medical or treatment-

oriented, purpose.” Majority opinion at ¶ 23. Second, as discussed below, a nurse

practitioner examined M.A. after Marshall’s questioning. She would have asked

all medically relevant questions during her examination.

{¶ 51} The testimonial statements in this case were neither redacted nor

harmless. Nevertheless, the majority opinion concludes that the testimonial

statements do not violate the defendant’s right to confront witnesses. I will now

explain why I believe that all of the statements elicited by Marshall were

testimonial and, therefore, improperly admitted into evidence.

Marshall’s Interview with M.A.

{¶ 52} Kerri Marshall is a licensed social worker employed by CCFA as a

medical forensic interviewer. Marshall described her job duties as interviewing

children who are alleged to be victims of sexual or physical abuse. She testified

that law-enforcement personnel customarily observe the interviews that she

conducts and that the children are not aware that they are being observed.

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Marshall’s interview with M.A. was contemporaneously broadcast to another

room over closed-circuit television, where it was viewed by several people,

including a police detective. It was also recorded on a DVD.

{¶ 53} During her interview with M.A., Marshall asked many questions

about the events of the previous evening. Some of the questions were not relevant

to an ongoing medical emergency or to medical treatment. For example, Marshall

asked M.A., “How did your underwear get off?” “Did daddy’s pee-pee touch your

pee-pee?” and “Were you laying down or sitting up when daddy played pee-pees

with you?” Marshall subsequently prepared a report of the interview, entitled

“Medical Forensic Interview Summary.” In this report, Marshall noted that

Arnold “fled the home by stealing [Otto’s] purse and her car” after Otto

confronted him. Marshall recommended that M.A. be “protected from any

contact with alleged perpetrator as this investigation continues.”

Statement made in the course of a police interrogation

{¶ 54} The issue in this case, as it was in Stahl and Siler, is to determine

whether the hearsay statements that were offered by the prosecution and that the

defendant argued violated his right under the Sixth Amendment to confront a

witness are testimonial. A threshold question, however, is whether the statements

were made in the course of a police interrogation. See Davis, 547 U.S. at 822,

126 S.Ct. 2266, 165 L.Ed.2d 224; Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876

N.E.2d 534, at ¶ 30-31. What constitutes “police interrogation” for purposes of

Confrontation Clause analysis has not been addressed by the United States

Supreme Court. See Davis at 823, fn. 2.

{¶ 55} It is, of course, plainly obvious that a police officer did not conduct

the interrogation in this case; social worker Kerri Marshall conducted the

interrogation. The question becomes: was Marshall an agent of law enforcement

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when she conducted the interrogation? Id. For the reasons that follow, I conclude

that she was.

{¶ 56} Although the state argues that Crawford and Davis apply only

when the interviewer is a law-enforcement officer, the cases do not support such a

narrow interpretation. I am persuaded that Crawford and Davis define a broader

constitutional protection from out-of-court statements that are obtained primarily

to assist in a criminal prosecution, regardless of whether the interrogator is a

police officer or an agent of the police. Davis, 547 U.S. at 822-823, 126 S.Ct.

2266, 165 L.Ed.2d 224; Crawford, 541 U.S. at 51-53, 124 S.Ct. 1354, 158

L.Ed.2d 177. See Crawford at 50 (“the principal evil at which the Confrontation

Clause was directed was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence against the accused”).

{¶ 57} In Siler, we stated that “courts have consistently applied the

primary-purpose test to statements that a child declarant made to police or those

determined to be police agents.” Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876

N.E.2d 534, at ¶ 29. In one of those cases, the Supreme Court of North Dakota

stated, “In cases since Crawford, other states with the functional equivalent of the

Children’s Advocacy Center (‘CAC’) involved in this case have held that similar

statements made by a child with police involvement inevitably are testimonial.”

State v. Blue (2006), 199 N.D. 50, 717 N.W.2d 558, ¶ 15. A Florida court of

appeals has considered four factors to determine whether the interrogation at issue

was “the functional equivalent of a police interrogation. These four factors are (1)

the effect of the Florida statutes pertinent to the establishment and functioning of

the CPT [the Florida equivalent of a CAC], (2) the nature and extent of law

enforcement involvement in the examination of the child by [the nurse

practitioner] at [the hospital], (3) the purpose of the examination performed by

[the nurse practitioner] in her capacity as a member of the CPT, and (4) the

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absence of any ongoing emergency at the time [the nurse practitioner] conducted

her examination of the child.” Hernandez v. State (Fla.App.2007), 946 So.2d

1270, 1280. Although I would not adopt this four-part test, the factors are helpful

in determining whether Marshall was acting as an agent of the police when she

interrogated M.A.

{¶ 58} First, the statutory scheme that authorized the creation of CACs

contains provisions that establish a link between the CACs and law enforcement.

R.C. 2151.426 and 2151.427. See Ohio Adm.Code 5101:2-33-26. Second, a

police detective watched the interrogation as it was happening and the

interrogation was recorded and saved to a DVD. Third, focusing primarily on

issues that were not medical, the interview was memorialized as a “Medical

Forensic Interview Summary,” suggesting that the purpose was forensic, not

medical. Fourth, there was no ongoing emergency while the interview was

conducted.

{¶ 59} Furthermore, Marshall is not a medical professional; her job title is

“medical forensic interviewer.” “Forensic” means “[u]sed in or suitable to courts

of law or public debate.” Black's Law Dictionary (9th Ed.2009) 721. The

Michigan Department of Human Services has stated that “[t]he goal of a forensic

interview is to obtain a statement from a child * * * that will support accurate and

fair decision-making in the criminal justice and child welfare systems,” and that

“the interview is not part of a treatment process.” State of Michigan, Forensic

Interviewing Protocol, at http://www.michigan.gov/documents/dhs/DHS-PUB-

0779_211637_7.pdf (accessed May 25, 2010).

{¶ 60} I conclude that Marshall was an agent of the police when she

conducted her forensic interview of M.A. See Blue, 2006 ND 134, 717 N.W.2d

558, ¶ 14 – 16, and the cases cited therein; State v. Mack (2004), 337 Or. 586,

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593, 101 P.3d 349 (Department of Human Services caseworker was a proxy for

the police).

Application of the primary-purpose test

{¶ 61} The next step is to determine whether the primary purpose of the

interrogation was “ ‘to enable police assistance to meet an ongoing emergency.’ ”

Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, at paragraph one of

the syllabus, quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224.

First, the interview involved a description of past events. The alleged abuse had

occurred the previous evening, and the questioning specifically attempted to

obtain a description of the abuse. Second, a reasonable observer would not

perceive an ongoing emergency at the time of questioning. The patient had been

discharged from the hospital the previous evening. At oral argument, counsel

conceded that no medical emergency existed at the time of Marshall’s interview.

Third, the questioning was not necessary to resolve an emergency because there

was no ongoing emergency. Finally, the interview was rather formal, more akin

to the videotaped, planned interview of Crawford than to the frantic 9-1-1 call or

the sequestered but spur-of-the-moment interview recounted in Davis. Each

factor independently suggests that there was no ongoing emergency; collectively,

the conclusion is manifest.

{¶ 62} Because the primary purpose of the Marshall interview was not to

meet an ongoing emergency, the next step is to evaluate the entirety of the factual

circumstances surrounding the interview to establish whether its primary purpose

was “to establish or prove past events potentially relevant to later criminal

prosecution.” Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224.

{¶ 63} A CAC can be established only by a children’s services agency, law

enforcement, or a prosecutor, and the CAC is responsible for assembling a

multidisciplinary team. R.C. 2151.426 and 2151.427(A). The multidisciplinary

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January Term, 2010

team must include law enforcement and prosecuting attorneys as members. Id.

The statutory connection between CACs and law enforcement suggests that CACs

are not solely medical-treatment providers and that a CAC interviewer can be an

agent of the police.

{¶ 64} The circumstances of the interview indicate that its primary

purpose was “to establish or prove past events potentially relevant to later

criminal prosecution.” Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224.

See Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, paragraph one of

the syllabus. Police observed the interview, which the state concedes is a

customary practice. A DVD recording of the interview was preserved, a strong

indication that the purpose of the interview was to obtain evidence for use by the

prosecution. I am unaware of doctors videotaping patient interviews to assist

them in medical treatments or of doctors allowing police officers to routinely

observe them when they examine their patients.

{¶ 65} Furthermore, many of the questions asked were investigatory in

nature and similar to the questions asked in a direct examination in a judicial

proceeding. See Davis, 547 U.S. at 830, 126 S.Ct. 2266, 165 L.Ed.2d 224. For

example, questions about how the underwear was removed, who did so, and the

specific positions – standing up or lying down – in which the alleged abuse

occurred represent an attempt to gain specific details of past events. If the

questions have a medical purpose, it is secondary to their investigatory purpose. I

might view Marshall’s questions differently if she were a nurse, as in Stahl, but

she is not. Furthermore, the nurse practitioner would have made all inquiries

relevant to medical treatment during the physical examination after the social

worker questioned M.A. That the nurse practitioner stated that Marshall’s

interview “guides my exam” is no doubt true to some degree. But nurse

practitioners are highly educated professionals; they do not need an intermediary.

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In my opinion, the intermediary was interjected in order to elicit forensic

evidence, not to assist in the medical examination.

{¶ 66} It is objectively apparent from the record that Marshall asked

questions to assist in the police investigation. The circumstances of this case are

quite different from State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875

N.E.2d 944, ¶ 62, in which hearsay statements obtained by medical personnel in

the course of treatment survived a Sixth Amendment challenge. In Muttart, police

did not observe the interview and the interview was not videotaped. The state

argues that the questions that Marshall asked M.A. helped to assess the need for

future counseling but fails to show whether any counseling occurred. Even if it

had occurred, a recommendation for counseling alone would be insufficient to

establish that the interview was primarily for medical purposes.

{¶ 67} The critical evidence in this case is Marshall’s report, something

the majority opinion does not address. It uses the words “perpetrator” and

“allegations” and includes a witness list, an item typically not found in a medical

report. The report states that the patient should have no contact with the “alleged

perpetrator as this investigation continues.” The report indicates that Marshall

believed that she was assisting an ongoing investigation targeting a particular

criminal suspect. When interviewers believe themselves to be participants in an

investigation that has targeted a particular criminal suspect, they conduct precisely

the type of ex parte examinations that the Confrontation Clause protects against.

Crawford, 541 U.S. at 50-53, 124 S.Ct. 1354, 158 L.Ed.2d 177.

Conclusions reached by sister states

{¶ 68} Since Crawford was decided, many state supreme courts have

addressed the issue before us. In at least eight cases, state supreme courts have

concluded that out-of-court statements by child sexual-assault victims to various

non-law-enforcement personnel were nontestimonial. Seely v. State (2008), 373

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January Term, 2010

Ark. 141, 282 S.W.3d 778; People v. Vigil (Colo.2006), 127 P.3d 916; State v.

Arroyo (2007), 284 Conn. 597, 935 A.2d 975; Commonwealth v. DeOliveira

(2006), 447 Mass. 56, 849 N.E.2d 218; State v. Krasky (Minn.2007), 736 N.W.2d

636; Hobgood v. State (Miss.2006), 926 So.2d 847; State v. Spencer (2007), 339

Mont. 227, 2007 MT 245, 169 P.3d 384; State v. Vaught (2004), 268 Neb. 316,

682 N.W.2d 284. Each of these cases turned on factual determinations that are

not present in this case. See, e.g., Seely, 373 Ark. at 156, 282 S.W.3d 778 (the

primary purpose of an interview conducted by a social worker “was medical

treatment”); Vigil, 127 P.3d at 927 (statements to doctor were for purposes of

medical diagnosis); Hobgood, 926 So.2d at 852 (statements were made to people

who “were not working in connection with the police” or were made for the

purpose of seeking medical treatment).

{¶ 69} At least nine state supreme courts have concluded that out-of-court

statements by child sexual assault victims to non-law-enforcement personnel are

testimonial. State v. Contreras (Fla.2008), 979 So.2d 896; Hooper, 145 Idaho

139, 176 P.3d 911; In re Rolandis G., 232 Ill.2d 13, 327 Ill.Dec. 479, 902 N.E.2d

600; State v. Bentley (Iowa 2007), 739 N.W.2d 296; State v. Henderson (2007),

284 Kan. 267, 160 P.3d 776; State v. Snowden (2005), 385 Md. 64, 867 A.2d 314;

State v. Justus (Mo.2006), 205 S.W. 3d 872; Blue, 2006 ND 134, 717 N.W.2d

558; Mack, 337 Or. 586, 101 P.3d 349. Each of these cases involves an

interviewer who performed in circumstances substantially similar to the facts

before us. See, e.g., Blue, 2006 ND 134, 717 N.W.2d 558, ¶ 2-3 (a forensic

interviewer conducted the interview while a police officer watched; the officer

was given a videotaped recording of the interview); Contreras, 979 So.2d at 905

(interview by child-protection-team coordinator was watched by police officer and

recorded); Bentley, 739 N.W.2d at 297, 300 (interview by counselor at child-

protection center was watched by police officers, who took videotaped copy of

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interview with them). My conclusion in this case is bolstered by the fact that the

majority of our sister courts that have considered substantially the same issue have

reached the same conclusion that I reach.

Conclusion

{¶ 70} I conclude that the primary purpose of Marshall’s forensic

interview was to establish or prove past events potentially relevant to later

criminal prosecution. I conclude, therefore, that the statements were testimonial

and that their admission violated the Confrontation Clause of the Sixth

Amendment to the United States Constitution. I would reverse the decision of the

court of appeals. I dissent.

_____________________

O’DONNELL, J., dissenting.

{¶ 71} The issue in this case concerns whether the trial court violated

Michael Arnold’s constitutional right to confront the witnesses against him when

it admitted hearsay statements that Arnold’s four-year-old daughter, M.A., made

to Kerri Marshall, a medical forensic interviewer at the Center for Child and

Family Advocacy at Nationwide Children’s Hospital, who interviewed M.A. as

part of the investigation into allegations of sexual abuse. I agree with the majority

that Marshall acted as an agent of law enforcement when she interviewed M.A.

because Marshall had a purpose to collect information for use by the police.

However, because the majority also decides that Marshall simultaneously acted as

an agent of medical professionals, rendering M.A.’s statements relevant to

diagnosis and treatment nontestimonial, notwithstanding Marshall’s primary

purpose to collect that same information for the police, I respectfully dissent.

Facts and Procedural History

{¶ 72} Michael Arnold and Wendy Otto married in their teens and had two

children: a girl, M.A., who was four years old at the time relevant to this case, and

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a boy, M.S.A., who was five. The couple had a volatile relationship, which

included physical violence, accusations of infidelity, and an unsubstantiated claim

that Arnold had abused M.S.A. According to Arnold’s mother, Wendy had made

up stories involving the children to get back at Arnold for cheating on her. After

Wendy filed for divorce in July 2005, Arnold moved to Ohio. However, the two

reconciled, and in November 2005, she followed him to Ohio.

{¶ 73} On the evening of December 7, 2005, Wendy fell asleep in the

living room with M.S.A, but noises upstairs woke her, and she went to the

bedroom to investigate. Arnold, however, had locked the bedroom door, and she

yelled for him to open it. Once he did, she saw his “boxers halfway off on his

side” and M.A. lying on the couple’s air mattress. She pulled a blanket off of

M.A. and discovered her daughter’s underwear around her ankles. At that point,

she told Arnold to leave. He told Wendy that nothing happened, but he left the

house when she called 9-1-1. Paramedics and officers responded, and M.A. told

firefighter-paramedic Charles Fritz that someone touched her private area. Fritz

took Wendy and both children to the emergency room at Children’s Hospital,

where authorities performed a rape-kit examination on M.A.

{¶ 74} Wendy received instructions to take M.A. to the Center for Child

and Family Advocacy at Children’s Hospital (the “CCFA”) the next morning.

The CCFA is a child-advocacy center, which is defined by R.C. 2151.425(A) to

mean “a center operated by participating entities * * * to perform functions and

activities and provide services * * * regarding reports * * * of alleged sexual

abuse of a child or another type of abuse of a child.” Pursuant to R.C.

2151.426(A), the participating entities operating a child-advocacy center may

include children’s services, law enforcement, and the prosecuting attorney. The

Columbus Police Department, the prosecutor, and children’s services all have

offices in the CCFA building.

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{¶ 75} Kerri Marshall, a medical forensic interviewer working for the

CCFA, interviews children when there are allegations of sexual or physical abuse.

These interviews are recorded on DVD and observed on closed-circuit television

by the nurse or doctor who will perform a physical examination, law enforcement,

a children’s services caseworker, and sometimes a prosecutor. According to

Marshall, her interview is for purposes of medical diagnosis and treatment.

However, she also explained the purpose of having doctors, nurses, detectives,

children’s services caseworkers, and prosecutors watch the interview: “Before we

were all in the same building. You know, we would do the same process. I would

interview the children. They would have their medical exam done. We would

forward our reports on to medical services, law enforcement. They will have to

review [—] law enforcement may have to interview the child. So in this way we

set it up so the child will have to go through one interview. The child won’t have

to relive the story again. So that’s really the purpose of having the other — the

other people there watching the interview.” Thus, the interview had a goal to

obtain enough information so that law enforcement would not have to reinterview

the child.

{¶ 76} In this case, Gail Horner, a nurse practitioner, Monte Nommay, a

police detective, Joelle Nielson, a victim advocate, and Vanise Dunn, a children’s

services caseworker, observed the interview. Marshall interviewed M.A. in a

separate room with DVD cameras. She explained to M.A. that she would ask her

some questions and that a nurse would give her a check-up, and she attempted to

build a rapport with introductory questions; however, the interview quickly

focused on the prior night’s events:

{¶ 77} “And who takes care of you?

{¶ 78} “A. My mom and my dad.

{¶ 79} “Q. Your mom and your dad take care –

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{¶ 80} “A. But my dad’s not at my home.

{¶ 81} “Q. Your dad’s not at your home? How come?

{¶ 82} “A. Because he got in jail.

{¶ 83} “Q. Him got in jail. Okay. How come him got in jail? What did

daddy do?

{¶ 84} “A. Nothing. He just got in jail.”

{¶ 85} Marshall continued asking M.A. why Arnold had gone to jail, and

M.A. explained that he had done something to Wendy and that they had been

fighting. M.A. also stated that Arnold had locked the bedroom door and that

neither she nor Wendy were in the room, but upon further questioning, M.A.

revealed that she had been in the bedroom with Arnold sleeping on the bed.

{¶ 86} When that line of questioning stalled, Marshall asked M.A. whether

she had ever been to a doctor for a check-up. M.A. responded “Today.” When

Marshall asked why, M.A. said, “Because my legs were hurting.” Marshall did

not explore the source of M.A.’s medical complaint, but instead returned the focus

to Arnold’s arrest:

{¶ 87} “Your legs were hurting? Okay. Now, when daddy — you said

daddy went to jail and him not at the home, who took daddy to jail?

{¶ 88} “A. Cops.

{¶ 89} “* * *

{¶ 90} “Q. Who called the cops?

{¶ 91} “A. My mom.

{¶ 92} “Q. Why did she call the cops?

{¶ 93} “A. Because them was fighting.”

{¶ 94} Marshall asked why Otto had to call the police, and continued:

{¶ 95} “I don’t understand what your mom and dad were fighting about.

Were they fighting about something that happened to you? Yeah? Okay. I just

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want you to tell the truth, that’s all I want you to do. Okay. You are not in any

trouble. Okay? I am going to tell you the truth, [M.A.], and I want you to tell me

the truth. Okay? So your mom and your dad were fighting about something that

happened to you.

{¶ 96} “A. I can’t – I can’t say it.”

{¶ 97} Marshall then brought out a picture of a girl and had M.A. identity

the parts of her body. She then continued questioning M.A.:

{¶ 98} “[W]hat would you do if someone touched one of your private

parts? What would you do?

{¶ 99} “A. You get in trouble.

{¶ 100} “Q. Who gets in trouble?

{¶ 101} “A. Him.”

{¶ 102} Upon further questioning, M.A. denied that anyone had touched or

put anything in her private parts. Marshall then asked whether anyone had asked

her to keep a secret:

{¶ 103} “Has your mom ever told you to keep a secret?

{¶ 104} “A. Yeah.

{¶ 105} “Q. What secret did your mom tell you to keep?

{¶ 106} “A. (Inaudible.)

{¶ 107} “Q. How about your dad? Did your dad ever tell you to keep a

secret?

{¶ 108} “A. No.

{¶ 109} “Q. No? Has anyone ever told you not to tell?

{¶ 110} “A. No.

{¶ 111} “Q. No? Well, I don’t understand how come there were cops at

your house last night and how come you had to go to the doctor’s across the street.

{¶ 112} “A. Because.

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{¶ 113} “* * *

{¶ 114} “Q. Did mommy ever come in the bedroom when the door was

locked when you and dad were sleeping? Did mom ever come in?

{¶ 115} “A. Oh, yeah.

{¶ 116} “Q. Yeah. What did mom see when she came in?

{¶ 117} “A. My underwear was off.

{¶ 118} “Q. Your underwear was off? Okay. How did your underwear get

off?

{¶ 119} “A. Because my dad took them off.

{¶ 120} “Q. Oh, okay. And then what happened when your dad took your

underwear off? Do you want to say it really fast in my ear what happened? After

dad took your underwear off?

{¶ 121} “A. (Inaudible) My dad —

{¶ 122} “Q. Took your underwear off? And then what?

{¶ 123} “A. (Inaudible) and pee-pee with me.

{¶ 124} “Q. Your daddy took your underwear off and touched your pee-

pee?

{¶ 125} “A. No. And was doing pee-pees.

{¶ 126} “Q. And was what?

{¶ 127} “A. Him was touching my pee-pee. But he was doing pee-pees

with me. That’s why he got in jail.”

{¶ 128} On further questioning, M.A. explained that Arnold’s “pee-pee”

went inside her “pee-pee,” that he had touched her “pee-pee” with his hand, that

he had been on top of her while “playing pee-pees,” that his “pee-pee” had

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touched the outside of her “butt,” and that his mouth had touched her “pee-pee.”2

Once Marshall had this information, she did not ask M.A. about any other

instances of abuse or any other potential abusers, but rather remained focused on

Arnold and reconfirmed this specific instance of abuse.

{¶ 129} Marshall then took M.A. to Horner, the nurse, for a physical

exam. According to Horner’s testimony, she would have conducted a head-to-toe

examination of M.A. regardless of M.A.’s answers to Marshall’s questions, but

she explained that “that forensic interview guides my exam in that it lets me know

whether or not I need to test the child for sexually transmitted infection.” The

physical exam of M.A. revealed abrasions on the hymen consistent with a

penetrating injury.

{¶ 130} Based on this interview, the state charged Arnold with two counts

of rape in violation of R.C. 2907.02. Over objection, the trial court found M.A. to

be unavailable for trial and that her hearsay statements to Marshall were

nontestimonial and admissible. The state played the video recording of the

interview for the jury, which subsequently found Arnold guilty of vaginal rape.

The Tenth District affirmed, holding that Marshall was not an agent of the police

and that M.A.’s statements were not testimonial.

{¶ 131} We accepted Arnold’s appeal to determine whether Marshall’s

interview elicited testimonial statements subject to the Confrontation Clause.

The Confrontation Clause

{¶ 132} The Sixth Amendment to the United States Constitution provides

that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be

confronted with the witnesses against him.” Prior to 2004, the Supreme Court of

the United States had interpreted the Confrontation Clause to permit the state to

2. M.A. also said that Arnold’s “pee-pee” was green, that his “butt” and a needle touched her

“butt,” and that his ears touched her “pee-pee,” to which Marshall responded, “[M.A.], this stuff is

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January Term, 2010

use the hearsay statements of a declarant who did not appear at trial if the hearsay

fell within “a firmly rooted hearsay exception” or if it otherwise bore

“particularized guarantees of trustworthiness.” See, e.g., Ohio v. Roberts (1980),

448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597. Thus, statements made for

purposes of medical diagnosis or treatment were admissible notwithstanding the

inability of the accused to cross-examine the declarant. White v. Illinois (1992),

502 U.S. 346, 356-357, 112 S.Ct. 736, 116 L.Ed.2d 848, and fn. 8.

{¶ 133} In Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354,

158 L.Ed.2d 177, however, the court recognized that the interpretation of the

Sixth Amendment articulated in Roberts could not be reconciled with the

historical underpinnings of the Confrontation Clause. It held that the Sixth

Amendment “commands, not that [hearsay] evidence be reliable, but that

reliability be assessed in a particular manner: by testing in the crucible of cross-

examination.” Crawford at 61. Because the Sixth Amendment guarantees the

accused’s right to confront those who “bear testimony,” the Confrontation Clause

bars admission of testimonial statements unless the witness appears at trial or, if

the witness is unavailable, the accused had a prior opportunity for cross-

examination. Id. at 51. The court explained that “[w]hatever else the term

[‘testimonial’] covers, it applies at a minimum to prior testimony at a preliminary

hearing, before a grand jury, or at a former trial; and to police interrogations.” Id.

at 68.

{¶ 134} The Supreme Court revisited the issue in Davis v. Washington

(2006), 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224. The court held,

“Statements are nontestimonial when made in the course of police interrogation

under circumstances objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet an ongoing emergency. They

important.”

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are testimonial when the circumstances objectively indicate that there is no such

ongoing emergency, and that the primary purpose of the interrogation is to

establish or prove past events potentially relevant to later criminal prosecution.”

Davis at 822. The court held that statements to a 9-1-1 operator made during a

police interrogation conducted in response to an ongoing emergency are

nontestimonial; however, statements made to police after the emergency had

ended are testimonial.

Stahl, Muttart, and Siler

{¶ 135} This court has previously applied Crawford and Davis to

determine whether statements admitted at trial were testimonial or nontestimonial.

{¶ 136} In State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855

N.E.2d 834, we considered whether statements made by a rape victim to a DOVE-

unit nurse in the presence of a police officer were testimonial. There, we

“adopt[ed] the ‘objective witness’ test in Ohio. For Confrontation Clause

purposes, a testimonial statement includes one made ‘under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use at a later trial.’ ” Id. at ¶ 36, quoting Crawford, 541 U.S. at 52,

124 S.Ct. 1354, 158 L.Ed.2d 177. We concluded that the victim’s statements to

the nurse were nontestimonial because the victim could reasonably have assumed

that repeating to a nurse or other medical professional the same information

provided to police served a separate and distinct medical purpose from the

criminal investigation. Id. at ¶ 46.

{¶ 137} Following Stahl, in State v. Muttart, 116 Ohio St.3d 5, 2007-

Ohio-5267, 875 N.E.2d 944, we examined the issue whether a child’s statements

to a social worker at the Child Maltreatment Clinic at Mercy Children’s Hospital

in Toledo were testimonial. We held that “[s]tatements made to medical

personnel for purposes of diagnosis or treatment are not inadmissible under

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Crawford, because they are not even remotely related to the evils that the

Confrontation Clause was designed to avoid.” Id. at ¶ 63. We also noted that

“[t]he fact that the information gathered by the medical personnel in this case was

subsequently used by the state does not change the fact that the statements were

not made for the state’s use.” Id. at ¶ 62. Notably, however, law enforcement had

not been involved in the interview or examination.

{¶ 138} The court distinguished Stahl in State v. Siler, 116 Ohio St.3d 39,

2007-Ohio-5637, 876 N.E.2d 534, and, relying on Davis, held that the primary-

purpose test applies to a child declarant’s statements made to police or those

determined to be police agents: “ ‘[Statements] are testimonial when the

circumstances objectively indicate that there is no * * * ongoing emergency, and

that the primary purpose of the interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.’ ” Id. at ¶ 30, quoting Davis v.

Washington, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224. The court

rejected the argument that because of a child’s limited understanding of the

system of criminal justice, the child could not reasonably expect his or her

statements to be used at a later trial, and therefore, the child’s statements to police

interrogators are nontestimonial under the primary-purpose test.

{¶ 139} Our cases applying Crawford and Davis thus recognize the use of

different standards when the interviewer is an agent of law enforcement and when

the interviewer is an agent of a medical provider. When the questioner is an agent

of law enforcement, the court, in accordance with Siler, looks to whether the

primary purpose of the interrogation is to establish or prove past events potentially

relevant to later criminal prosecution. When the questioner is a medical

professional not related to law enforcement, the court, following Stahl, applies the

objective-witness test and determines whether the circumstances would lead an

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objective witness reasonably to believe that the statement would be available for

use at a later trial.

The Majority’s Dual-Capacity Test

{¶ 140} Today’s majority, however, charts a course different from the

Confrontation Clause jurisprudence of the Supreme Court of the United States and

adopts its own dual-capacity test in which the interrogation is examined on a

question-by-question basis to determine whether the interviewer acted as an agent

of law enforcement or as an agent of some other entity when eliciting a particular

statement. Applying this test, it finds that testimonial and nontestimonial

statements are interspersed throughout Marshall’s interview and that Marshall

acted variously as an agent of law enforcement and as a medical examiner. This

analysis is contrary to United States Supreme Court jurisprudence, which directs

that we should look to the primary purpose of the interrogation, not the secondary

or tertiary purpose.

{¶ 141} Here, Marshall acted as an agent of law enforcement when she

interviewed M.A., as she asked questions on behalf of the police in the absence of

an ongoing emergency to establish or prove past events relevant to later criminal

prosecution. The interview she conducted focused solely on confirming the single

instance of sexual abuse that Wendy had accused Arnold of committing: the

child’s medical history went no further than the night before, Marshall did not ask

M.A. about any prior instances of sexual abuse she had experienced, and Marshall

did not evaluate whether it would be safe to return the child to live with Wendy.

Further, as the majority explains, “the interview was rather formal, more akin to

the videotaped, planned interview of Crawford than to the frantic 9-1-1 call or the

sequestered but spur-of-the-moment interview recounted in Davis.” Majority

opinion at ¶ 35.

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January Term, 2010

{¶ 142} The majority therefore properly holds that M.A.’s statement that

Arnold locked the bedroom door with her inside, her descriptions of where her

mother and brother were and what Arnold’s boxer shorts and “pee-pee” looked

like, and her statements that Arnold had removed both his and her underwear are

testimonial because “[t]hese statements likely were not necessary for medical

diagnosis or treatment. Rather, they related primarily to the state’s investigation.”

Majority opinion at ¶ 34.

{¶ 143} Yet the majority determines that Marshall acted as an agent of

medical providers when she asked questions in any way relevant to medical

diagnosis and treatment, so that the statements that “described the acts that Arnold

performed, including that Arnold touched her ‘pee-pee,’ that Arnold’s ‘pee-pee’

went inside her ‘pee-pee,’ that Arnold’s ‘pee-pee’ touched her ‘butt,’ that

Arnold’s hand touched her ‘pee-pee,’ and that Arnold’s mouth touched her ‘pee-

pee,’ were thus necessary for the proper medical diagnosis and treatment of M.A.”

According to the majority, “[i]n eliciting these medically necessary statements,

Marshall acted as an agent of the nurse practitioner who examined M.A., not of

the investigating police officers.” Majority opinion at ¶ 40.

{¶ 144} In my view, it is not enough that these statements were relevant

for medical diagnosis; rather, the question is whether the totality of the

circumstances objectively indicate that the primary purpose of the interview was

to facilitate medical diagnosis and treatment or whether it was to establish or

prove past events potentially relevant to later criminal prosecution.

{¶ 145} It is manifest that Marshall’s questions sought to confirm the

allegations of sexual abuse and that proving these past events would be relevant at

a criminal prosecution, and the totality of the circumstances indicates that the

whole interview served primarily an investigative and prosecutorial purpose.

Notably, M.A. revealed the abuse in response to a series of questions asking why

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her parents were fighting, why the police had come to her house, and why Arnold

had gone to jail, and M.A. stated that Arnold “was doing pee-pees” with her and

that “[t]hat’s why he got in jail.”

{¶ 146} Thus, M.A.’s recorded statements “are functionally identical to

live, in-court testimony, doing ‘precisely what a witness does on direct

examination.’ ” Melendez-Diaz v. Massachusetts (2009), ___ U.S. ___, 129 S.Ct.

2527, 2532, 174 L.Ed.2d 314, quoting Davis, 547 U.S. at 830, 126 S.Ct. 2266,

165 L.Ed.2d 224. Her statements share the same “ ‘striking resemblance’ of the

Crawford statement to civil-law ex parte examinations” that the court recognized

in Davis: Marshall separated M.A. from her mother for the interview but not for

the physical exam, M.A. “deliberately recounted, in response to police

questioning, how potentially criminal past events began and progressed,” and the

interview occurred after the incident and any related exigencies had ended. Davis

at 830. Further, the CCFA perpetuated the interview for trial.

{¶ 147} The fact that the answers to Marshall’s questions may also be used

for a nontestimonial purpose does not mean that M.A.’s statements are not

testimonial or that the nontestimonial purpose takes precedence. As the Eighth

Circuit Court of Appeals explained in United States v. Bordeaux (C.A.8, 2005),

400 F.3d 548, 556, “That [the child’s] statements may have also had a medical

purpose does not change the fact that they were testimonial, because Crawford

does not indicate, and logic does not dictate, that multi-purpose statements cannot

be testimonial.” Accord State v. Henderson (2007), 284 Kan. 267, 293, 160 P.3d

776, (“while one purpose of the interview was to enable some assistance to [the

child victim], the circumstances of this case objectively indicate that its primary

purpose was to establish past events potentially relevant to a later criminal

prosecution of Henderson”); State ex rel. Juvenile Dept. of Multnomah Cty. v. S.P.

(2009), 346 Or. 592, 624, 215 P.3d 847 (recognizing that statements to a child-

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January Term, 2010

abuse-evaluation team served dual purposes of providing treatment to the victim

and obtaining evidence against the accused, but holding that “statements in a

formal setting, in response to structured questions about past events” asked by

persons who were proxies for law enforcement, were testimonial).

{¶ 148} Contrary to the majority’s assertion, Davis does not support the

proposition that “[t]here is no basis in the law for concluding that Marshall’s dual

capacity renders statements made by M.A. for the purpose of medical diagnosis

and treatment inadmissible pursuant to the Confrontation Clause.” Majority

opinion at ¶ 41. Rather, the United States Supreme Court in Davis emphasized

that it had not held that “a conversation which begins as an interrogation to

determine the need for emergency assistance cannot, as the Indiana Supreme

Court put it [in Hammon v. State], ‘evolve into testimonial statements,’ 829

N.E.2d, at 457, once that purpose has been achieved.” (Emphasis added.) Davis,

547 U.S. at 828, 126 S.Ct. 2266, 165 L.Ed.2d 224.

{¶ 149} However, by the majority’s reckoning, the converse occurred here:

an interrogation eliciting testimonial statements (i.e., that Arnold locked the door

and pulled down M.A.’s underwear) evolved into a conversation to obtain

medically necessary statements (i.e., Arnold raped the child). Further, the United

States Supreme Court in Davis did not perform the question-by-question analysis

that the majority undertakes in this case; rather, the court focused on whether the

totality of the circumstances indicate that “the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.” Davis at 822.

{¶ 150} In my view, the primary purpose of Marshall’s questioning was to

establish what had been done to M.A. and who had done it. Accordingly, M.A.’s

statements are testimonial and their admission at trial without a prior opportunity

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to cross-examine M.A. violated Arnold’s right to confront the witnesses against

him.

{¶ 151} Tellingly, this view that statements elicited by interviewers

cooperating with law enforcement are testimonial is supported by the weight of

authority addressing similar circumstances. See, e.g., Bordeaux, 400 F.3d at 556;

People v. Sisavath (2004), 118 Cal.App.4th 1396, 1402, 13 Cal.Rptr.3d 753; State

v. Hooper (2007), 145 Idaho 139, 146, 176 P.3d 911; In re Rolandis G (2008),

232 Ill.2d 13, 32-33, 327 Ill.Dec. 479, 902 N.E.2d 600; State v. Bentley (Iowa

2007), 739 N.W.2d 296, 302; State v. Henderson (2007), 284 Kan. 267, 293, 160

P.3d 776; Hartsfield v. Commonwealth (Ky.2009), 277 S.W.3d 239, 245; State v.

Justus (Mo.2006), 205 S.W.3d 872; State v. Blue, 2006 ND 134, 717 N.W.2d 558,

at ¶ 17-18; State v. Mack (2004), 337 Or. 586, 593, 101 P.3d 349.

{¶ 152} The Confrontation Clause ensures that “evidence admitted against

an accused is reliable and subject to the rigorous adversarial testing that is the

norm of Anglo-American criminal proceedings.” Maryland v. Craig (1990), 497

U.S. 836, 845-846, 110 S.Ct. 3157, 111 L.Ed.2d 666. Because the principal evil

at which the Confrontation Clause is directed is the use of ex parte examinations

as evidence against the accused such as occurred in this case, I would reverse the

judgment of the court of appeals.

__________________

Ron O’Brien, Franklin County Prosecuting Attorney, and Kimberly Bond,

Assistant Prosecuting Attorney, for appellee.

Yeura R. Venters, Franklin County Public Defender, and David L. Strait,

Assistant Public Defender, for appellant.

Vorys, Sater, Seymour & Pease, L.L.P., Lisa Pierce Reisz, and Melissa J.

Mitchell, urging affirmance for amici curiae Nationwide Children’s Hospital and

the Center for Child and Family Advocacy.

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January Term, 2010

Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,

Elisabeth A. Long, Deputy Solicitor, and Rebecca L. Thomas, Assistant Solicitor,

urging affirmance for amicus curiae Attorney General of Ohio.

Timothy Young, Ohio Public Defender, and Kelly K. Curtis, Assistant

Public Defender, urging reversal for amicus curiae Ohio Public Defender.

Ian N. Friedman & Associates, Ian N. Friedman, and Eric C. Nemecek,

urging reversal for amicus curiae Ohio Association of Criminal Defense Lawyers.

______________________

45