*1 Leffler, Attorney, appellee. for Prosecuting County Huron Russell V. Wiedemann, Gamso; Hiltz, Gamso, Jeffrey M. and & Hoolahan and Helmick Allton, Co., L.P.A., appellants. D. for and John Allton & Koch for Chaiten, reversal urging A. Radigan, and Louis Elizabeth C. Day, Jones Assault, for the Treat- Association Against Sexual Iowa Coalition amici curiae Center, A. Detective Robert Abusers, Wetterling Resource Jacob ment Sexual Assault, Against Texas Association Against Sexual Shilling, Coalition California Assault, to End Violence. and National Alliance Sexual Sexual Defender, T. and Tobik, Martin Public and John Cuyahoga County L. Robert Defenders, amicus curiae reversal for urging Public Sweeney, Assistant Cullen County Public Defender. Cuyahoga Friedman, Assoc., L.L.C., urging Ian reversal and N.
Ian N. Friedman & Lawyers. of Defense amicus curiae Ohio Association A. Defender, K. and Katherine Kelly Curtis Young, Ohio Public Timothy curiae Ohio Public Defenders, reversal for amicus Szudy, urging Public Assistant Defender. Mason, H. Prosecuting Attorney, Mary Cuyahoga County D.
William curiae McGrath, Attorney, affirmance for amicus Prosecuting urging Assistant County Prosecuting Attorney. Cuyahoga O’Brien, Attorney, Taylor, Franklin L. County Prosecuting and Steven
Ron affirmance for amicus curiae state Attorney, urging Prosecuting Assistant Ohio. General, General, Mizer, Benjamin C. Solicitor Cordray, Attorney
Richard
General,
Lieberman,
Schimmer,
M.
Solicitor
David
Deputy
Alexandra T.
Chief
Solicitor,
A.
Solicitor,
Conomy,
P.
Assistant
James
Deputy
Christopher
Attorney
affirmance for amicus curiae Ohio
General.
Hogan, urging
Appellant.
Arnold,
Ohio, Appellee,
The State
Arnold,
290,
year-old daughter, M.A. Arnold argues statements that M.A. made to social worker Kerri Marshall at the Center for Child and Family Advocacy at Nation- (“CCFA”) wide Children’s Hospital were contrary rights admitted to his under the Confrontation of Clause the Sixth Amendment to the United States Constitu- tion and Section Article I of the Ohio Constitution. The court appeals conviction, affirmed Arnold’s that Marshall holding agent did not act as an police when she questioned M.A. and that during M.A.’s statements the interview were nontestimonial. In CCFA, M.A. at interviewing Marshall occupied capacities: dual
she was both a forensic collecting interviewer information for use by and a medical eliciting interviewer information necessary diagnosis treatment. We hold statements made to interviewers at child-advocacy centers that are made for medical diagnosis and treatment are nontestimonial Thus, and are admissible without offending the Confrontation Clause. we affirm judgment the court of appeals the extent that M.A.’s statements to Marshall for the medical treatment and properly admitted. We further hold that statements made to interviewers at child- advocacy centers that serve primarily forensic or investigative purpose are Clause. We the Confrontation pursuant and are inadmissible
testimonial admitting the forensic the trial court erred with Arnold that agree insofar as it held that the court of appeals and reverse by M.A. Marshall made However, because the court of statements were admissible. these forensic of M.A.’s forensic statement whether the admission did consider appeals harmless, case to the court of consider appeals we remand this Marshall issue. this Background
Relevant Hilliard, together in Wendy lived Arnold and Otto December 3}{¶ awakening upon one Ohio, young their children. Otto testified two M.A., were four-year-old daughter, their she discovered Arnold and night, door, unlock the and when he that Arnold in bedroom. Otto demanded locked *3 Otto observed that did, halfway his boxer were off. also she observed that shorts abuse, sexual demand- suspected around ankles. She underwear was her M.A.’s immediately. called Arnold left premises, Arnold the 9-1-1. ed that leave arrived, present. were M.A. told paramedics many police time officers By the in her private Fritz that she had been touched Charles firefighter-paramedic area. Hospital, where took Otto and M.A. Nationwide Children’s Paramedics
4}{¶ was advised to hospital, for a kit was While the Otto evidence collected. rape this the next The record is unclear whether advice day. take M.A. to CCFA personnel, or some other source. At police, paramedics, hospital from the came that was point night, M.A. released. some part The is morning, The Otto took M.A. the CCFA. CCFA next
5} {¶ from the main At Hospital hospital. and is across street located Children’s CCFA, Marshall, interviewed Hospital employee, a Nationwide Children’s indicated that she had been questions M.A.’s to Marshall’s responses M.A. interview at the heart of Arnold’s Confrontation Clause sexually abused. This claim. For variety example, of relevant information. yielded The interview
{¶ 6} Arnold’s “pee-pee” “pee-pee” stated Arnold’s went inside M.A. necessary for M.A.’s “pee-pee.” touched her These statements mouth questions But M.A. also answered evaluation and treatment. investigation. response For to Marshall’s example, to the ongoing related and locked the bedroom door before M.A. that Arnold closed stated questions, her and that Arnold removed her underwear. raping Marshall, by examined physically M.A. was After the interview 7} Horner, worked in employee Gail who hospital nurse pediatric practitioner, concluded had hymen, to M.A.’s which she Horner found two abrasions CCFA. trauma, likely been acute from within by penetration, previous caused 72 hours. Horner testified that the sexual “diagnostic” abrasions were abuse. information, including testimony, Based on this and other Otto’s Arnold was on two rape indicted counts of violation of R.C. 2907.02. The first count intercourse; charged rape by vaginal by charged rape cunnilingus. second trial, At the court testify. determined M.A. was unavailable to After Marshall, the DVD watching recording M.A.’s interview with the court determined that statements had been for the of medical made 803(4). hearsay and were admissible under Evid.R. The court also that the by determined statements were not barred Confrontation Clause. Accordingly, DVD played jury. intercourse, jury guilty by found of rape vaginal Arnold but not
guilty of rape cunnilingus. R.C. 2907.02. Arnold was sentenced life in prison. On the Tenth District appeal, affirmed Arnold’s conviction. State v.
Arnold,
07AP-789,
App.
Analysis
*4
Clause
Confrontation
“The
that,
Sixth Amendment’s
provides
Confrontation Clause
all
‘[i]n
* * *
prosecutions,
criminal
the accused shall enjoy
right
the
to be confronted
with the
against
witnesses
him.’ We have
that
procedural
held
this bedrock
guarantee
Texas,
to both
applies
federal and state
v.
prosecutions. Pointer
380
400, 406,
1065,
(1965).”
U.S.
85 S.Ct.
L.Ed.2d
13
923
v. Washington
Crawford
(2004),
36, 42,124
1354,158
10,
U.S.
S.Ct.
177.
L.Ed.2d
“Section Article I [of
the Ohio
provides
greater
no
right
Constitution]
confrontation than the Sixth
(1990),
73,
Amendment.” State v.
79,
56 Ohio St.3d
violence 819-820. complainant the victim at the of the incident and who witnessed who interviewed scene an affidavit the abuse testified trial in order complete sign concerning (1) Id. at 820. The court determined authenticate the affidavit. not what interrogation sought happened, happening, determine what had (3) (2) interrogation was not emergency, there was no ongoing (4) “formal interrogation *5 an that was emergency, needed resolve in a from the enough” separate complainant’s that it was conducted room entirely at that clear from “[i]t husband. Id. 830. The court concluded an investigation possibly that the was into interrogation part circumstances as, indeed, acknowledged.” officer past testifying expressly criminal conduct— hearsay that Accordingly, at 829. the court concluded evidence Id. Id. at therefore, Amendment. and, by that it was barred Sixth testimonial 834. when made are nontestimonial held that “[statements The court that the objectively indicating under circumstances police interrogation
course of assistance to meet is to enable interrogation of the primary purpose objectively circumstances are testimonial when the emergency. They ongoing primary purpose and that the ongoing emergency, that is no such indicate there relevant to past potentially events interrogation prove is to establish Siler, 39, 2007- Accord 116 Ohio St.3d criminal Id. at 822. prosecution.” later Ohio-5637, syllabus. N.E.2d one of the paragraph Muttart,
Stahl,
and Siler
Stahl,
by
rape
statements
hearsay
In
this court considered whether
at a hospital
a medical examination
DOVE1
practitioner during
victim to a nurse
Stahl,
at trial.
testify
unit
admissible when the victim was not available
¶
186,
sheriffs
39,
Other State Comi Decisions Crawford, many Since state courts have supreme considered whether centers, by during child-advocacy statements made children interviews at or their equivalent, functional are testimonial and whether statements child victims of sexual abuse for medical and treatment are testimonial. that a recognize We number of those decisions held that statements by victims at child-advocacy
child-sexual-abuse centers their functional equivalent and, therefore, are testimonial inadmissible pursuant the Confrontation Clause opportunity when the defendant has no to cross-examine victim Crawford See, (Fla.2008), 896; at trial. v. e.g., State Contreras 979 So.2d v. Hooper State (2007), 139, 911; (2008), 145 13, Idaho 176 P.3d In re Rolandis G. 232 Ill.2d 327 (Iowa 479, 600; 2007), 296; Ill.Dec. v. Bentley State 739 N.W.2d State (2007), 267, 776; v. Kan. Henderson 284 160 P.3d State v. Snowden 385 314; (Mo.2006), 872; Blue, Md. 867 A.2d State Justus 205 S.W.3d State v. cases, 2006 ND N.W.2d 558. But in each of these the interviews were solely conducted purposes. forensic The situation we are presented with this case is distinct from those considered the above-cited cases. Here we are asked to determine whether statements that contain distinct forensic and medical diagnostic information. and were during made to social worker one interview Contreras, implicate the Confrontation example, Clause. For the Florida that a Supreme Court held statement taken the coordinator of a “child (“CPT”) protection team” was testimonial. Id. at 905. The interview was violence, conducted and at a videotaped shelter for victims of domestic and a officer was connected electronically the CPT coordinator in order to Id. There no suggest questions. was evidence the child received medical treatment based on the interview. court if primary, held “the not the sole, purpose of the CPT interview to investigate was whether the crime of child occurred, sexual abuse had and to establish facts relevant to a potentially later criminal prosecution.” Id. in a statements made Court excluded Similarly, Supreme the Illinois * * * “absolutely [the] no indication interview when there was
forensic * * * rather than conducted, degree, for treatment to substantial interview G., Ill.Dec. 232 Ill.2d at In re Rolandis investigative purposes.” *7 him to case, perform that an older child forced stating 600. In that after N.E.2d fellatio, center and was interviewed child-advocacy a was taken to a six-year-old recorded and observed at 19. The interview was video by a child advocate. Id. Contreras, no there was one-way a mirror. Id. As with by through a detective on the a medical evaluation or treatment based indication that the child received place that “the interview took The Illinois Court concluded Supreme interview. sexual alleged that a more detailed account of the at the behest of the so videotape” and memorialized on by could be obtained a trained interviewer abuse testimonial. Id. at 32. and held that the child’s statements were in a video- Supreme In the Idaho Court excluded statements Hooper, Response at a Trauma Abuse Center recorded forensic interview taken Sexual (“STAR”). 141,176 case, to the P.3d 911. In that a child was taken 145 Idaho child and her father locked STAR center after her mother discovered the arrival at the Upon sexual abuse. Id. at 140. STAR suspected bathroom center, with a the doctor conducted a sexual-abuse the child met doctor and examination, examination. Id. at 141. After the medical a forensic interviewer child, conducted video-recorded interview with the which a detective observed via a occurred after the child system. closed-circuit Id. Because the interview by met with and was examined interview served a physician, subsequent forensic, treatment-oriented, not a or purpose. vein, In the same that a child’s Supreme Kansas Court held worker, during by
statements
interview conducted
detective and
social
Unit,
Exploited
Missing
both members of the
Children
were testimonial.
Henderson,
Henderson,
294,
In
statements obtained
interviews at CACs or their functional
when the declarant is unavailable
result
violations of the Confrontation Clause
solely
at trial arise from scenarios
which the statements
issue were
than for
ones.
purposes,
therapeutic
forensic
rather
ameliorative
made
category,
the latter
our sister courts hold
for the
of medical
and treatment are
purpose
child-sexual-abuse victims
and, therefore,
not testimonial
do not
the Confrontation
even if
implicate
Clause
(2008),
subsequently by
Seely
are used
the state
v. State
prosecution.
(holding
373 Ark.
statements to Marshall were
identify
primary
we must
the
of
purpose
the statements. Statements made for the
of
purpose
diagnosis
and
Muttart,
5,
39,
interviews.’ 2003) (June 1. A child- Child Protection on the Road to Performance-Based “ ” a trauma to child-abuse goal’ one is to reduce advocacy center’s ‘number professionals multiple include from by coordinating the interview to victim turn, and which, number of interviews needed can reduce the agencies, the recommendation investigation, diagnosis, and improve quality “ avoid trauma Additionally, ‘[t]hey help at 323. children for treatment. Id. ” path.’ Id. story stops along legal judicial at various repeating their professionals, prose- These teams often include law-enforcement interdisciplinary cutors, advocates. at 324. personnel, medical and mental-health child Id. CCFA, Marshall, Nationwide employed At the social worker or suspected physical children who are victims Hospital, Children’s interviews much information as gather sexual abuse. The of the interview is as on a DVD and transmitted to another possible. The interview is both recorded doctor, a nurse Typically, practitioner room via closed-circuit television. caseworker, children’s watch representative services law-enforcement that the separate interview from a room. Marshall does inform child interview, team are but does tell him or that he or she watching members be or nurse the interview. will examined doctor after child, she or nurse After Marshall interviews meets with doctor to review child’s perform who will the medical examination practitioner *9 appropriate statements. The nurse or doctor conducts the medical examination or during based on child’s statements the interview. The nurse doctor relies the obtained interview to determine what examina- during on information Marshall’s example, identity and For information the of regarding tion tests are needed. alleged, perpetrator, age perpetrator, type of the of abuse frame the doctor nurse to to test time of the abuse allows or determine whether child sexually for transmitted infections. Capacity
The Interviewer’s Dual Child-advocacy are unique. Multidisciplinary cooperate centers teams story that the and will not have to retell the only so child interviewed once autonomy. Neither multiple times. Most members team retain their However, of other. agents nor medical become police personnel officers interview, the only the child victim one interviewer goes through ensure that in a possible single elicit much information from child as interview must as gather and must Thus, information needed each team member. (1) interview serves dual purposes: gather forensic information to investigate (2) potentially prosecute defendant for the offense and to elicit information necessary diagnosis treatment of the victim. The interviewer acts as an of each agent member of the multidisciplinary team. Certainly, some of the statements that M.A. made to Marshall primarily
served forensic or investigative purpose. Those statements include M.A.’s assertion that Arnold shut her; and locked the bedroom door before raping descriptions of where her mother and brother were while she was the bedroom Arnold, shorts, of Arnold’s boxer them, of him removing and of what like; Arnold’s “pee-pee” looked and her statement that Arnold removed her underwear. These likely were not necessary for medical Rather, treatment. they related primarily to the state’s investigation. Marshall effectively acted as an of agent police for the of obtaining these statements. Because Marshall acted an agent as in obtaining these statements, Siler, pursuant to Davis and employ we must the primary-purpose “
test to determine whether the primary purpose of the interrogation was
‘to
”
enable police assistance to meet an ongoing
Siler,
emergency.’
39,
ongoing emergency rather, to further the state’s forensic investigation. *10 Thus, these statements were testimonial in nature and their admission without prior opportunity for cross-examination prohibited by the Confrontation Clause. Crawford, 68,124 1354,158 U.S. S.Ct. L.Ed.2d 177. interview of M.A. Marshall’s during the statements obtained Although thus and are testimonial investigation forensic to the state’s primarily
that related that information provided other statements Crawford, pursuant inadmissible during history obtained treat M.A. The medically necessary diagnose was an to make practitioner or nurse for the doctor important interview is are neces- and treatment what evaluation and to determine diagnosis accurate to toe” examination conducts “head nurse example, practitioner For sary. disclose sexual area of who children, genital patients only all but examines injury sustained trauma or identify any exam is to portion That of the abuse. alleged abuse. during performed, acts that Arnold that described the M.A.’s statements inside Arnold’s went “pee-pee” “pee-pee,” that Arnold touched her
including “butt,” that Arnold’s hand her Arnold’s touched “pee-pee” “pee-pee,” thus were “pee-pee” Arnold’s mouth touched her and that “pee-pee,” touched her treatment of M.A. diagnosis medical necessary proper for the troubled our dissent, states that he is In Justice Pfeifer his had necessary because M.A. medically conclusion that these statements However, although M.A. rape. of the hospital night at the on the been examined only establishes rape, of the the record night taken to the on the hospital was was examined for she performed, that a examination was rape-kit further to the CCFA for M.A. was referred diagnosis or treated. nurse also contends that the Pfeifer medical examination and treatment. Justice all medical- interview would have asked who examined M.A. after the practitioner history This is not true. during the examination. ly questions relevant practitioner for the nurse necessary interview was during obtained Marshall’s necessary. to determine what treatment diagnosis make an accurate M.A., that the “forensic Horner, examined testified practitioner the nurse who I or not need to test in that it lets me know whether guides my interview exam instance, that a says if a child infection. For sexually the child for transmitted me that I need to test to make sure vagina, touched their it means to penis sexually transmitted infection.” get child didn’t statements, Marshall acted as medically necessary eliciting these M.A., investigating police not of the nurse who examined
agent
practitioner
of the
obtaining
act as an
agent
Marshall did not
officers. Because
Stahl, 111 Ohio
statements,
to Davis.
pursuant
are not inadmissible
these
¶
basis in the law for
concluding
capacity
Marshall’s dual
renders statements
made M.A. for the
of medical
purpose
diagnosis and treatment
inadmissible
Davis,
pursuant
Indeed,
to the Confrontation
in
Clause.
the United States
Supreme Court
that the
acknowledged
interrogation
same interview or
might
Davis,
produce both testimonial and nontestimonial statements.
that although M.A.’s forensic testimonial, statements to Marshall were statements for the purpose diagnosis medical and treatment were properly Davis, First, admitted. Justice Pfeifer argues pursuant to when evidence statements, includes testimonial and nontestimonial the testimonial statements must be redacted or excluded violating to avoid right defendant’s to confront witnesses him. against agree We that M.A.’s testimonial statements should have excluded, been 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 reliance on Davis is erroneous because we that our argue 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 may those that properly However, be admitted. our guiding consideration is the made, for which the statements are not the order in which they are obtained. Finally, both note that unlike in there was no ongoing dissents and, emergency therefore, in this case there nowas occasion for the questioning in this case to evolve from nontestimonial to testimonial. Our decision is not based on statements, the evolution of M.A.’s but on fact that the statements were made for different purposes. The fact that Davis involved an evolution from nontestimonial to testimonial preclude statements does not application its instances in which an interview simultaneously serves dual purposes. Further, the fact that police officers watched the interview and that it
was recorded
change
does not
the fact that the statements were necessary for
M.A.’s
diagnosis
medical
and treatment.
Similarly, the fact that
information
for
gathered
medical purposes
subsequently
used
the state does not change
the fact that the statements were made for
diagnosis
medical
and treatment.
Muttart,
5,
Conclusion
CCFA,
occupied dual
M.A. at the
she
Marshall
interviewed
When
*12
for use
collecting
by
information
interviewer
capacities: she was both a forensic
diagnosis
necessary for
information
eliciting
and a medical interviewer
child-advocacy
made to interviewers
and
We hold that statements
treatment.
and treatment are nontestimonial
diagnosis
are made for medical
centers that
Thus, we affirm
offending the
Clause.
and are admissible without
Confrontation
statements to
the extent
M.A.’s
appeals
of
court of
to
judgment
properly
and
were
purpose
Marshall for the
of
treatment
made
interviewers
child-
We further hold
statements
admitted.
or
are
primarily
investigative
that serve
a forensic
advocacy centers
when the
pursuant
and are
to the Confrontation Clause
testimonial
inadmissible
trial.
with Arnold
agree
cross-examination at
declarant
is unavailable for
We
by
made M.A. to
admitting
court
the forensic statements
the trial
erred
it held that
appeal’s judgment
reverse
insofar as
these
Marshall and
the court
However,
appeals
court of
did
were admissible.
because the
forensic statements
forensic statement to Marshall was
not consider whether the admission M.A.’s
v.
214,
Judgment in part, and reversed and cause remanded. JJ., Lundberg concur. Stratton, Lanzinger, Cupp, JJ., dissent. O’Donnell, Pfeifer J., not participating. C.
Brown, J., dissenting.
Pfeifer, in reaching case law majority opinion applicable The misconstrues the I cannot be both testimonial its conclusion. conclude that forensic interview right violating Sixth Amendment and nontestimonial without defendant’s witnesses him. against confront the law of Amendment’s majority ably explains the Sixth opinion The
{¶ I will not cases. Confrontation Clause as elucidated various federal Ohio fairly characterizes case majority also opinion redescribe these cases. The law from states that it summarizes in section titled “Other State other dissent, Supreme majority opinion’s Decisions.” I on the Court based law, majority applies of the understanding way opinion but because law to this case. majority many opinion acknowledges questions The asked interviewer, Marshall, “to gather
the forensic Kerri were asked forensic informa- are, therefore, In Washington tion” and testimonial. Davis U.S. 813, 828-829, 126 S.Ct. L.Ed.2d the court held that statements of a witness who is unavailable for cross-examination should be or redacted excluded violating right avoid the defendant’s to confront witnesses him. against Furthermore, testimonial statements this case were not redacted excluded. the testimonial statements in this case are different from those discussed Davis. the testimonial statements were made after a series of interrogator nontestimonial statements had concluded. Id. The in that case had police meeting elicited statements assist the ongoing emergency: those nontestimonial, and their as permissible. admission evidence was *13 statements, Id. eliciting After the initial interrogator the asked series of questions attempting alleged elicit information crime. Id. at about 828. The court “no great found problem” approach this because the nontestimoni- al separate statements were and distinct from the testimonial statements. Id. at 829. The court stated that from an questioning addressing could evolve emer- gency eliciting forensic According information. Id. at 828. to the Supreme Court, may testimonial not if they statements be introduced as evidence are document, part transcript must other Id. at 829. redacted. majority opinion First, makes creative of the opinion. use Davis it the concept concludes that of nontestimonial evolving statements into testimonial statements when an dual applies interrogator has a Davis purpose. does not support this interrogator conclusion. The Davis did not dual purposes: have separate she had two purposes. completed questions She regarding the ongoing emergency then moved on to elicit information that be could used as questions, elicited, evidence. Marshall’s which opinion in the of the majority, statements, both testimonial nontestimonial were interspersed, rendering it difficult distinguish those should that be redacted from those that need not be Second, in redacted. this there was ongoing emergency. case no The emergency before, night occurred the so there was no questioning occasion to evolve Third, from nontestimonial eliciting eliciting statements to testimonial ones. case, exist, testimonial statements in which majority opinion this concedes majority were not redacted. The opinion relies on but to the extent only that its purposes. Davis suits of appeals the court cause to enable remanding the Although harmless, we it finding than is harmless is better whether the error
determine
was not
in this case
record that the error
It is clear from the
do neither.
should
they may helpful, have been done and asked That doctor would have evening. the previous examined M.A. (2007), 145 v. Hooper M.A. at that time. See State necessary to treat everything states, “Because 139, 141, majority opinion about which the Idaho 176 P.3d and was examined after the child met with occurred interview forensic, not a medical or treatment- interview served a subsequent physician, below, Second, oriented, as discussed Majority opinion purpose.” would have She questioning. examined M.A. after Marshall’s practitioner nurse during her examination. medically questions asked all relevant redacted nor in this case were neither The testimonial statements Nevertheless, the testimonial majority opinion concludes harmless. I witnesses. will now right the defendant’s to confront statements do violate Marshall were I that all of the statements elicited why believe explain therefore, and, admitted into evidence. improperly testimonial M.A.
Marshall’s Interview with by CCFA as employed Marshall is a licensed social worker Kerri *14 job interviewing duties as interviewer. Marshall described medical forensic abuse. She testified physical to be victims of sexual or alleged children who are that she customarily observe the interviews personnel law-enforcement being are observed. and that the children are not aware conducts to another contemporaneously with M.A. was broadcast Marshall’s interview television, by people, several where it was viewed room over closed-circuit on a DVD. detective. It was also recorded including police M.A., about many questions with Marshall asked During her interview were not relevant questions Some of the previous evening. the events of the Marshall example, or to medical treatment. For emergency ongoing touch M.A., daddy’s pee-pee off?” “Did your get “How did underwear asked pee- daddy played or when you laying sitting up down your pee-pee?” and “Were 306
pees you?” interview, Marshall subsequently prepared report of the entitled “Medical Forensic Interview In Summary.” report, this Marshall noted that Arnold “fled the by stealing home and her car” purse [Otto’s] after Otto confronted him. Marshall recommended that M.A. be from “protected any contact with alleged perpetrator as this investigation continues.” made in police interrogation
Statement
the course of a
case,
Siler,
The issue
this
it
as was
Stahl and
is to determine
whether
hearsay
by
were offered
the prosecution and that
the defendant argued
right
violated his
under the Sixth Amendment to confront a
however,
witness are testimonial. A
question,
threshold
is whether the state-
Davis,
ments were made in the
a police
course of
interrogation. See
at
U.S.
822,
2266,
224; Siler,
126 S.Ct.
39,
165 L.Ed.2d
interrogation case; in this social worker Kerri Marshall conducted the interroga- tion. The question becomes: was Marshall an agent of law enforcement when she conducted the interrogation? follow, Id. For the reasons that I conclude that she was. Although the state argues apply only Davis when Crawford officer,
interviewer is a law-enforcement
the cases do not
such a
support
narrow
interpretation.
I am persuaded that
and Davis
define
broader
Crawford
constitutional protection from out-of-court statements that are obtained primarily
to assist in a
prosecution,
criminal
regardless of whether the interrogator
is a
police
agent
officer or an
police.
822-823,
307 the (1) establishment pertinent the Florida statutes the effect of factors are (2) CAC], and a the nature of equivalent the CPT Florida functioning [the and of of child [the in the examination the law involvement of enforcement extent (3) performed the the of examination hospital], purpose at practitioner] [the nurse (4) CPT, and the a of the capacity in her as member practitioner] nurse by [the nurse conducted practitioner] [the at time any ongoing emergency of absence v. the child.” Hernandez State (Fla.App.2007), So.2d her examination of test, helpful factors are 1270,1280. I this Although adopt four-part would not she police as of the when acting agent was an determining whether Marshall interrogated M.A. of First, creation CACs statutory that authorized the scheme link and enforcement. between the CACs law provisions
contains
establish
Second, police
2151.427. See Ohio Adm.Code 5101:2-33-26.
R.C. 2151.426 and
and
interrogation
happening
interrogation
as it was
watched
detective
Third,
on issues that were
focusing primarily
saved to a DVD.
was recorded and
medical,
as a “Medical Forensic Interview
not
interview was memorialized
forensic,
Fourth,
not
there
that the
was
medical.
Summary,”
purpose
suggesting
emergency
no
while the interview was conducted.
ongoing
Furthermore,
job
title
professional;
Marshall is
a medical
“Forensic” means
in or suitable
courts
“[u]sed
“medical forensic interviewer.”
(9th Ed.2009) 721. The
Dictionary
law
Black’s Law
public
of
debate.”
goal
of a
of Human
has stated
forensic
Michigan Department
“[t]he
Services
* * *
accurate
support
from a child
that will
interview is
obtain
statement
justice
systems,”
fair
in the criminal
and child welfare
decision-making
of
process.”
Michigan,
is not
of a treatment
State
part
that “the interview
Protocol,
Interviewing
http://www.michigan.gov/documents/dhs/DHS-
at
Forensic
2010).
(accessed
25,May
PUB-0779_211637_7.pdf
police
an
of the
when she conducted
agent
I conclude
Marshall was
Blue,
558, 14-16,
134,
ND
717 N.W.2d
of M.A. See
her forensic interview
therein;
593, 101
State Mack
337 Or.
P.3d
cases cited
proxy
police).
of
caseworker was a
(Department Human Services
Application
primary-purpose
test
primary
step
is to determine whether
The next
ongoing emergency.
to meet an
was to enable
assistance
interrogation
Siler,
39,
discharged hospital previous evening. argument, from the counsel no time of emergency conceded that medical existed the Marshall’s interview. Third, to an questioning necessary emergency the was resolve because there formal, was no interview was rather more akin ongoing emergency. Finally, the to to 9-1-1 videotaped, planned the interview of than the frantic call or Crawford sequestered spur-of-the-moment the but interview recounted in Davis. Each factor independently suggests that there was no ongoing emergency; collectively, the is conclusion manifest. primary purpose Because the of the Marshall interview not to was meet
an emergency, the next to ongoing step entirety evaluate of the factual surrounding circumstances interview establish whether its primary pur pose past was “to establish or events relevant later prove potentially criminal Davis, 822, 126 prosecution.” 2266, 165 547 U.S. at S.Ct. L.Ed.2d only A CAC can agency, be established a services law children’s enforcement, or a prosecutor, and the CAC is responsible assembling a 2151.427(A). team. multidisciplinary R.C. 2151.426 and multidisciplinary The team must include law enforcement and prosecuting attorneys as members. Id. statutory connection between suggests CACs law enforcement CACs solely are not medical-treatment providers and that CAC interviewer can an agent be the police. The circumstances the interview indicate its
was “to establish or prove past
potentially
events
relevant
to later criminal
Davis,
822, 126
prosecution.”
2266, 165
Siler,
547
atU.S.
S.Ct.
L.Ed.2d 224. See
39,
and similar to the questions asked in a
in judicial proceed-
direct examination
ing.
See
U.S.
S.Ct.
to assist
*17
connection with the or were made for the seeking medical treatment). supreme At least nine state courts have concluded that out-of-court by child victims to personnel sexual-assault non-law-enforcement are (Fla.2008), 896; v. 139,
testimonial. State Contreras
979
145 Idaho
Hooper,
So.2d
G.,
911;
13,
479,
600;
176
re
P.3d
Rolandis
232 Ill.2d
Ill.Dec.
N.E.2d
327
902
(Iowa 2007),
296;
(2007),
State v. Bentley
739 N.W.2d
State v. Henderson
284
267,
776;
64,
314;
Kan.
160 P.3d
Snowden
385
State v.
Md.
867 A.2d
State
(Mo.2006),
872; Blue,
134,
558;
Mack,
Justus
205
ND
S.W.3d
2006
717 N.W.2d
337 Or.
Conclusion I conclude that of Marshall’s forensic interview {¶ 70} to prove past establish or potentially events relevant to later criminal prosecution. conclude, therefore, I the statements were testimonial and that their admission violated the Confrontation Clause of the Sixth Amendment to the United States I Constitution. would reverse decision of the court of appeals. I dissent. J.,
O’Donnell, dissenting. The issue this case concerns whether the trial court violated Michael Arnold’s right constitutional to confront the witnesses him against when it hearsay admitted four-year-old M.A., statements that Arnold’s daughter, made to Marshall, Kerri a medical forensic interviewer at the Center for Child and Family Advocacy at Nationwide Hospital, Children’s who part interviewed M.A. as of investigation allegations into of sexual agree abuse. I majority Marshall as an agent acted of law enforcement when she interviewed M.A. because Marshall had to collect information for the police. use However, majority simultaneously because the also decides Marshall acted as an of medical agent professionals, rendering M.A.’s statements relevant nontestimonial, diagnosis and treatment Marshall’s notwithstanding primary pur- pose to collect that same information for the I dissent. police, respectfully History
Facts Procedural Michael Wendy Arnold and Otto married their teens and had two M.A., case, girl, years children: a who was four old the time relevant to this M.S.A., a boy, who was five. The had a volatile which couple relationship, violence, physical included accusations of infidelity, and an unsubstantiated claim mother, that Arnold had abused M.S.A. According Wendy Arnold’s had made stories up involving get the children to back at Arnold for on cheating her. After Wendy July However, filed for divorce in Arnold moved to Ohio. the two reconciled, and November she him followed to Ohio. 7, 2005, the evening Wendy On of December fell asleep living M.S.A., her,
room with but noises upstairs woke and she went to the bedroom Arnold, however, investigate. door, had locked the bedroom and she for yelled did, him it. open Once he she saw his halfway “boxers off on his side” and M.A. on lying couple’s air mattress. pulled She blanket off of M.A. and daughter’s discovered her underwear around her ankles. At that point, she told Wendy Arnold to leave. He told that nothing happened, but he left the house when she called 9-1-1. responded, Paramedics and officers and M.A. told firefighter-paramedic Fritz Charles that someone touched private area. Fritz took Wendy and both children to emergency room at Children’s where Hospital, performed authorities a rape-kit examination on M.A. Wendy received instructions take M.A. to the Center Child and (the “CCFA”)
Family Advocacy at Hospital Children’s morning. the next 2151.425(A) center, CCFA is a child-advocacy which is defined R.C. to mean “a * * * center operated by participating entities to perform functions and activities * * * * * * and provide services regarding reports alleged sexual of a abuse *19 child or type 2151.426(A), another of abuse of a child.” Pursuant to R.C. participating operating entities a child-advocacy may center include children’s services, enforcement, law prosecuting attorney. and the The Columbus Police Department, prosecutor, and children’s all in services have offices the CCFA building. Marshall, Kerri a CCFA, medical forensic working interviewer for the
interviews children when there are allegations physical sexual or abuse. These interviews are recorded on DVD and on observed closed-circuit television examination, nurse or doctor perform enforcement, who will a physical law caseworker, children’s services and sometimes a prosecutor. According to Mar- shall, her interview is for purposes of medical and treatment. Howev- detectives, nurses, children’s doctors, having
er, purpose explained she also all “Before we were the interview: caseworkers, watch prosecutors services I would know, process. do the same we would You building. in same We would exam done. their medical would have They children. interview the have to services, They will law enforcement. on to medical reports forward our way in this we the child. So have to interview may law enforcement review [ ]— child won’t have interview. The through one go child will have upit so the set having the other —the really that’s story again. So to relive the Thus, goal the interview had watching the interview.” there people other not have to reinterview would that law enforcement information so enough obtain child. Nommay, police Horner, a Monte case, practitioner, nurse In this Gail Dunn, advocate, a children’s and Vanise detective, Nielson, a victim Joelle M.A. in a Marshall interviewed caseworker, the interview. observed services ask that she would explained to M.A. with DVD cameras. She room separate attempted and she check-up, her a give and that a nurse would some questions however, quickly the interview introductory questions; rapport build events: prior night’s focused on the you? care of
“And who takes dad. My my
“A. mom and care— your mom and dad take “Q. Your my not at home. my “A. But dad’s come? your not at home? How
“Q. Your dad’s jail. got “A. Because he jail? daddy him What did got How come
“Q. jail. Okay. Him got do? just jail.” Nothing. got
“A. He jail, and M.A. why gone Arnold had asking continued M.A. Marshall fighting. had Wendy been something that he had done explained door and that neither she had locked the bedroom stated that Arnold M.A. also room, M.A. revealed questioning, further upon were in the but Wendy nor sleeping Arnold on the bed. in the bedroom with she had been stalled, M.A. whether she Marshall asked questioning that line of When “Today.” When check-up. responded, for a M.A. to a doctor had ever been did said, hurting.” Marshall my legs “Because why, M.A. Marshall asked returned the focus but instead complaint, of M.A.’smedical the source explore arrest: to Arnold’s *20 Now, legs hurting? Okay. daddy you daddy
“Your when said — home, jail jail? to him at to daddy went who took Cops. “A.
“ * * *
“Q. cops? Who called the My
“A. mom.
“Q. call Why cops? did she
“A. Because them fighting.” why Marshall asked had to call police, Otto and continued: “I your don’t understand what mom and dad were about. fighting Were they fighting about to I something happened you? Okay. just Yeah? want truth, you to tell the that’s all I want you Okay. any to do. You are not Okay? truth, [M.A.], trouble. I am going you you tell and I want to tell me the truth. Okay? your your So mom and dad were fighting something about happened you.
“A. I say can’t—I can’t it.”
Marshall then out a brought picture girl identity and had M.A. of her parts body. She then continued M.A.: questioning would if you do someone touched of your private parts?
“[W]hat one you What would do? get
“A. You in trouble.
“Q. gets Who trouble?
“A. Him.”
Upon further questioning, M.A. denied that anyone put had touched or anything private parts. Marshall anyone then asked whether had asked her to keep secret: your
“Has mom you ever told a secret? keep “A. Yeah.
“Q. What secret did mom your you keep? tell (Inaudible.) “A.
“Q. your How about dad? Did your you keep dad ever tell a secret? “A. No.
“Q. anyone you No? Has ever told not to tell?
“A. No.
“Q. Well, I No? don’t understand how cops your come there were house last and how night you go come had to to the doctor’s across the street.
“A. Because.
“ * * * locked when the door was the bedroom
“Q. mommy Did ever come ever in? Did mom come you sleeping? and dad were when Oh, yeah. “A. she in? did mom see when came
“Q. Yeah. What off. My “A. underwear was underwear off? Okay. your get off? How did
“Q. Your underwear was off. my took them “A. Because dad dad Oh, happened your your when took okay. And then what
“Q. what really my happened? it fast ear you say Do want to underwear off? underwear off? your After dad took (Inaudible) My
“A. dad-— off? And then what? “Q. your Took underwear (Inaudible) and with me. “A. pee-pee your pee-pee? off and touched
“Q. daddy your Your took underwear doing pee-pees. And was “A. No. what?
“Q. And was doing pee-pees But he was touching my pee-pee. “A. Him was jail.” why got me. he That’s “pee-pee” Arnold’s went explained further M.A. questioning,
On hand, her with his that he “pee-pee” inside he had touched “pee-pee,” her had while that his touched pee-pees,” “pee-pee” of her top “playing had been on “butt,” “pee-pee.”2 mouth had her Once her and that his touched outside of information, any ask other instances of did not M.A. about Marshall had this she abusers, on rather remained focused Arnold and other but any potential abuse or of abuse. specific reconfirmed this instance Horner, nurse, for a physical exam. then took M.A.
Marshall would have head-to-toe exami- testimony, Horner’s she conducted According to questions, answers to Marshall’s but she regardless nation of M.A.’s of M.A. my in that it lets me know guides “that forensic interview exam explained sexually transmitted infection.” The I to test the child for whether or not need “butt,” green, touched “pee-pee” that his needle 2. M.A. that Arnold’s “butt” also said “[M.A.], responded, this stuff is “pee-pee,” touched her to which Marshall and that his ears important.” consistent with hymen on the of M.A. revealed abrasions exam physical injury. penetrating two counts of interview, charged state Arnold with on this Based trial court found M.A. be objection, the in violation of R.C. 2907.02. Over
rape nontesti- to Marshall were hearsay and that her unavailable for trial the interview for recording the video played monial and admissible. The state Tenth rape. guilty vaginal which found Arnold jury, subsequently and that affirmed, agent was not an holding District Marshall were not testimonial. M.A.’s statements *22 inter- to determine whether Marshall’s accepted appeal We Arnold’s
{¶ 131} subject to Clause. elicited testimonial statements the Confrontation view The Clause Confrontation provides that The Amendment to the United States Constitution Sixth {¶ 132} * * * enjoy right shall to be prosecutions, all criminal the accused “[i]n 2004, Supreme him.” Prior to Court of against confronted with the witnesses the state to interpreted permit had the Confrontation Clause the United States at trial if the appear statements of a declarant who did not hearsay use if it hearsay exception” within “a rooted or otherwise bore hearsay firmly fell See, (1980), v. Roberts “particularized guarantees e.g., of trustworthiness.” Ohio 56, Thus, 66, 2531, 597. statements made for 448 U.S. 100 S.Ct. 65 L.Ed.2d notwithstanding treatment admissible purposes of medical (1992), v. Illinois inability of the accused to cross-examine the declarant. White 346, 356-357, 736, 848, 112 116 L.Ed.2d and fn. 8. 502 U.S. S.Ct. 36, 1354, (2004), 124 v. 541 U.S. S.Ct. 158 Washington Crawford 177, however, that of the Sixth recognized interpretation
L.Ed.2d the court reconciled with the historical Amendment articulated Roberts could be It held that the Sixth Amendment underpinnings of the Confrontation Clause. reliable, “commands, reliability that be [hearsay] not that evidence be but in a manner: in the crucible of cross-examination.” particular by testing assessed right at the accused’s guarantees 61. Because the Sixth Amendment Crawford admission of testimony,” confront those who “bear the Confrontation Clause bars or, if is unless the witness at trial the witness appears testimonial statements unavailable, at 51. opportunity the accused had a for cross-examination. Id. prior covers, it explained [‘testimonial’] The court else the term “[w]hatever grand at a before a prior testimony preliminary hearing, at a minimum to applies trial; at interrogations.” or at a and to Id. 68. jury, police former Washington v. The Court revisited the issue Davis Supreme held, 813, 2266, court are 165 L.Ed.2d “Statements 547 U.S. S.Ct. under circum- police interrogation when made in the course of nontestimonial interrogation is to indicating primary objectively stances They are testimonial emergency. an ongoing to meet assistance police enable ongoing is no such there objectively indicate circumstances when the to establish or interrogation that the emergency, and at Davis prosecution.” to later criminal relevant potentially events prove past during police made operator to a 9-1-1 that statements court held 822. The nontestimonial; are ongoing emergency to an response conducted interrogation had ended are testimoni- emergency however, made to after police al. Muttart,
Stahl,
and Siler
Davis to determine
applied
has previously
This court
Crawford
or nontestimonial.
at trial were testimonial
admitted
whether statements
{¶ a child’s statements to social we examined the issue whether 875 N.E.2d in Toledo Mercy Hospital Children’s at the Maltreatment Clinic worker Child personnel made to medical We held “[statements were testimonial. Crawford, under because or treatment are not inadmissible of purposes that the Clause was related to the evils Confrontation remotely are not even ¶ fact the also noted that “[t]he avoid.” Id. at 63. We designed to subsequently in this case was personnel the medical gathered by information not made for the fact that the statements were change state does not used the however, law had not been Notably, enforcement use.” Id. the state’s or examination. involved in the interview Siler, 39, 2007- distinguished court Stahl State 534, and, primary-purpose held that the
Ohio-5637,
relying on
determined
police
made to
or those
to a child declarant’s statements
applies
test
“
when the circumstances
are testimonial
agents:
‘[Statements]
be
* * *
and that
the
ongoing emergency,
no
there is
objectively indicate
interrogation
past
of the
is to
or
events
prove
establish
”
¶ 30,
prosecution.’
quoting
relevant to later criminal
Id. at
Davis v.
potentially
Washington,
The Majority’s Dual-Capacity Test however, Today’s majority, charts a course from the different Confron- jurisprudence tation Clause Supreme of the of the Court United States and adopts its own dual-capacity test which interrogation is examined on a question-by-question basis to determine whether interviewer acted as an of law agent agent enforcement or as an entity some other when eliciting test, particular statement. Applying this it that testimonial and finds nontestimo- nial interspersed throughout statements are Marshall’s and that Mar- interview variously shall acted as an of law agent enforcement and a medical as examiner. This analysis contrary to United States Court Supreme jurisprudence, which directs that we should look primary to the interrogation, not the secondary tertiary purpose. Here, Marshall as an agent acted law enforcement when she *24 141} M.A.,
interviewed as she of questions asked on behalf the in the police absence of ongoing an to or emergency prove establish events relevant to later past criminal prosecution. solely The interview she conducted on confirming single focused the instance of sexual abuse that Wendy had accused Arnold of committing: the history child’s medical night before, went no further than Marshall did not any ask M.A. prior experienced, about instances of sexual she abuse had and Marshall it did not evaluate would to return to whether be safe the child live with Wendy. Further, as majority explains, formal, “the interview rather akin more to the videotaped, planned interview of than to the frantic 9- Crawford in interview recounted but sequestered spur-of-the-moment call or the 1-1 ¶at 35. Majority opinion Davis.” that that M.A.’s statement holds majority properly therefore where her inside, descriptions of door with her her locked the bedroom
Arnold and looked “pee-pee” and what Arnold’s boxer shorts and were mother brother his underwear had both and her like, that Arnold removed and her statements for medical necessary were likely “[t]hese are testimonial because investiga- to the Rather, primarily related state’s or treatment. diagnosis ¶at 34. Majority opinion tion.” an acted as of medical agent determines that Marshall majority Yet the 143}
{¶ way diagnosis in to medical and questions any when relevant she asked providers that treatment, performed, that “described the acts Arnold so that the statements went inside ‘pee-pee’ that Arnold’s ‘pee-pee,’ that Arnold touched her including ‘butt,’ Arnold’s touched her that hand ‘pee-pee’ that Arnold’s ‘pee-pee,’ her were that mouth touched her thus ‘pee-pee,’ her and Arnold’s ‘pee-pee,’ touched According and to medical treatment M.A.” necessary proper diagnosis for the statements, acted medically necessary these Marshall majority, eliciting “[i]n M.A., not of investigating who practitioner an of the nurse examined agent as Majority opinion at 40. officers.” police view, that relevant for my enough it is not these statements were 144}
{¶ rather, the circum- totality is whether diagnosis; question of the interview was to indicate that the objectively stances or prove and it was establish facilitate medical treatment whether criminal potentially prosecution. events relevant to later past allega- questions sought It is confirm manifest Marshall’s would relevant at a proving past and that these events be tions of sexual abuse of the circumstances totality and indicates prosecution, criminal investigative prosecutorial purpose. primarily interview whole served questions asking why to a Notably, response M.A. the abuse series revealed house, why had her Arnold why the come to parents fighting, her her doing pee-pees” that Arnold jail, had and M.A. stated “was gone jail.” got he why “[t]hat’s live, Thus, in- functionally M.A.’s recorded statements “are identical ” on testimony, a witness does direct examination.’ doing ‘precisely court what — 2532, U.S.-, 129 S.Ct. Melendez-Diaz v. Massachusetts L.Ed.2d 224. 126 S.Ct. quoting L.Ed.2d U.S. “ state- ‘striking the same resemblance’ Her statements share Crawford court Davis: recognized examinations” parte ment to civil-law ex from mother for the interview but not separated M.A. Marshall recounted, exam, police questioning, “deliberately response M.A. physical
319
potentially
past
criminal
and
and the interview
began
progressed,”
how
events
830.
any
exigencies
occurred after the incident and
had ended. Davis at
related
Further, the CCFA
the interview for trial.
perpetuated
the
for
questions may
The fact that
answers to Marshall’s
also be used
a nontestimonial
does not mean that M.A.’s statements are not testimoni
purpose
that
precedence.
al or
As the
purpose
Eighth
nontestimonial
takes
Circuit
(C.A.8,
of Appeals
2005),
Court
v.
explained United States Bordeaux
400 F.3d
548, 556, “That
may
child’s] statements
have also had a medical
does
purpose
[the
change
testimonial,
not
the fact
that
were
because
does not
Crawford
indicate,
dictate,
not
that
be
logic
multi-purpose
does
statements cannot
(2007),
267, 293,
testimonial.” Accord
v.
284 Kan.
160
State Henderson
P.3d
(“while one
purpose of
interview was
enable some assistance to
child
[the
victim], the
of
objectively
circumstances
this case
indicate that
its primary
purpose
past
was to establish
to a
potentially
events
relevant
later criminal
Henderson”);
of
prosecution
State ex rel. Juvenile
v.
Dept.
Cty.
Multnomah
592, 624,
S.P.
346 Or.
215
(recognizing
P.3d 847
that statements to a child-
abuse-evaluation team served dual
purposes
providing treatment
the victim
accused,
obtaining
against
that
holding
evidence
but
“statements in
formal
setting,
response
questions
events”
past
structured
about
asked
testimonial).
enforcement,
who
persons
were
for law
proxies
assertion,
Contrary to the
majority’s
Davis does
support
148}
{¶
is no
proposition
concluding
basis in the law for
dual
“[t]here
Marshall’s
capacity renders statements made
for
by M.A.
of medical
and treatment
pursuant
inadmissible
to the
Majority
Confrontation Clause.”
Rather,
at 41.
opinion
Supreme
United States
Court Davis emphasized
it
had not
“a
held that
conversation which
as an
begins
interrogation
cannot,
determine the need
emergency
assistance
as the Indiana Supreme
it
put
State],
Court
[in Hammon
‘evolve into
testimonial statements’
N.E.2d,
added.)
once that purpose has been achieved.” (Emphasis
U.S.
S.Ct.
addressing
753;
1396, 1402,
v.
(2004),
Cal.Rptr.3d
13
State
118 Cal.App.4th
v. Sisavath
(2008),
(2007),
139, 146,
911;
232
176 P.3d
In re Rolandis G
145 Idaho
Hooper
(Iowa 2007),
32-33,
479,
600;
v.
13,
Bentley
Ill.Dec.
State
327
Ill.2d
267, 293,
776;
296,
(2007),
Kan.
160 P.3d
302;
v. Henderson
284
State
739 N.W.2d
239, 245;
v.
State
Justus
(Ky.2009),
v.
S.W.3d
Commonwealth
Hartsfield
872;
Blue,
at 17-
(Mo.2006),
State v.
ND
N.W.2d
S.W.3d
586, 593, 101
(2004),
18;
v. Mack
337 Or.
P.3d
State
against
that “evidence admitted
Clause ensures
Confrontation
testing that is the norm
subject
rigorous
is
to the
adversarial
accused
reliable and
Craig
497 U.S.
proceedings.” Maryland
criminal
Anglo-American
845-846,
evil at
principal
Ron Attorney, Prosecuting appellee. Assistant for Defender, Venters, Strait, and L. County R. Franklin Public David
Yeura Defender, Public for appellant. Assistant Sater, L.L.P., Reisz, Pease, and Melissa J.
Vorys, Seymour & Lisa Pierce Mitchell, for urging Hospital affirmance amici curiae Nationwide Children’s and Family Advocacy. for the Center Child Mizer, General, General, Benjamin Attorney
Richard C. Solicitor Cordray, Thomas, Solicitor, Solicitor, A. and Rebecca L. Assistant Long, Deputy Elisabeth Attorney amicus General of Ohio. affirmance for curiae urging Curtis, Defender, K. Public Kelly Public Assistant Timothy Young, Ohio Defender, curiae Ohio Public Defender. urging reversal amicus Nemecek, Associates, Friedman, Eric C. urging & Ian N.
Ian N. Friedman Lawyers. of Criminal Defense for amicus curiae Ohio Association reversal