                         Docket No. 99581.


                       IN THE
                  SUPREME COURT
                         OF
                THE STATE OF ILLINOIS



In re ROLANDIS G., a Minor (The People of the State of Illinois,
           Appellant, v. Rolandis G., Appellee).

                 Opinion filed November 20, 2008.



   JUSTICE BURKE delivered the judgment of the court, with
opinion.
   Chief Justice Fitzgerald and Justices Freeman, Garman, and
Karmeier concurred in the judgment and opinion.
   Justice Thomas specially concurred, with opinion.
   Justice Kilbride also specially concurred, with opinion.



                             OPINION

    Eleven-year-old Rolandis G. (respondent) was adjudicated
delinquent after a juvenile court judge, in the circuit court of
Winnebago County, found him guilty of the aggravated criminal
sexual assault (720 ILCS 5/12–14(b)(i) (West 2002)) of six-year-old
Von J. The appellate court reversed the adjudication and remanded
for a new trial, ruling that the hearsay testimony of two witnesses had
been improperly admitted under Crawford v. Washington, 541 U.S.
36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). 352 Ill. App. 3d 776.
The appellate court also held that the statute which permitted the
hearsay testimony to be admitted into evidence, i.e., section 115–10
of the Code of Criminal Procedure of 1963 (725 ILCS 5/115–10
(West 2002)), was unconstitutional “to the extent [it] permits the
introduction of [testimonial] statements” in violation of the
confrontation clause of the United States Constitution (U.S. Const.,
amend. VI). 352 Ill. App. 3d at 781.
    The State petitioned this court for leave to appeal, which we
granted. In this appeal we are asked to resolve a number of issues,
some of which were left open by our recent decision in People v.
Stechly, 225 Ill. 2d 246 (2007).

                            BACKGROUND
    On July 16, 2002, Rolandis G. was arrested and charged with the
aggravated criminal sexual assault of Von J. The following day, a
delinquency petition was filed wherein it was alleged that on June 25,
2002, Rolandis had forced Von to perform fellatio on him. The
petition asked that Rolandis be declared a delinquent minor and made
a ward of the court.
    On November 21, 2002, a trial was held on the delinquency
petition. Prior to trial, the State filed motions in limine pursuant to
section 115–10 (725 ILCS 5/115–10 (West 2002)),1 seeking to admit


   1
       Section 115–10 provides, in pertinent part:
               “(a) In a prosecution for a physical or sexual act perpetrated
            upon or against a child under the age of 13, *** the following
            evidence shall be admitted as an exception to the hearsay rule:
                   (1) testimony by the victim of an out of court statement
               made by the victim that he or she complained of such act to
               another; and
                   (2) testimony of an out of court statement made by the
               victim describing any complaint of such act or matter or detail
               pertaining to any act which is an element of an offense which
               is the subject of a prosecution for a sexual or physical act
               against that victim.
               (b) Such testimony shall only be admitted if:
                   (1) The court finds in a hearing conducted outside the
               presence of the jury that the time, content, and circumstances
               of the statement provide sufficient safeguards of reliability;
               and

                                      -2-
into evidence hearsay statements Von made to his mother and to
Officer Cure of the Rockford police department, as well as a
videotaped statement made to Jacqueline Weber, a child advocate at
Rockford’s Carrie Lynn Children’s Center. The court deferred ruling
on these motions until after hearing all of the testimony.
    The matter proceeded to trial and Von was called as the first
witness. Von answered a few preliminary questions about himself and
made an in-court identification of Rolandis, stating that Rolandis was
someone he had known from the neighborhood. However, when
asked about events that occurred on June 25, 2002, Von resolutely
refused to respond. Even after he was given a short recess to speak to
his mother and a child advocate, Von could not bring himself to
answer questions about the allegations concerning Rolandis. The
court offered defense counsel the opportunity to cross-examine Von,
but she declined to do so.
    The State then called Von’s mother, Jacqueline M., to the stand.
She testified that around 11 a.m. on June 25, 2002, her six-year-old
son, Von, went outside to play with the neighborhood children. She
said Von returned home shortly after noon, accompanied by Rolandis.
Upon entering the home, Von immediately went to the bathroom,
while Rolandis remained by the front door of the apartment. She
heard Rolandis call to Von and ask him to come back outside, but
Von refused and Rolandis left.


           (2) The child *** either:
                 (A) testifies at the proceeding; or
                 (B) is unavailable as a witness and there is corroborative
              evidence of the act which is the subject of the statement[.]
              ***
                                    ***
           (e) Statements described in paragraphs (1) and (2) of
        subsection (a) shall not be excluded on the basis that they were
        obtained as a result of interviews conducted pursuant to a protocol
        adopted by a Child Advocacy Advisory Board as set forth in
        subsections (c), (d), and (e) of Section 3 of the Children’s
        Advocacy Center Act [55 ILCS 80/3] or that an interviewer or
        witness to the interview was or is an employee, agent, or
        investigator of a State’s Attorney’s office.” 725 ILCS 5/115–10
        (West 2002).

                                   -3-
    Jacqueline testified that while Von was in the bathroom she saw
him coughing, spitting, and rinsing his mouth out with water. She
asked Von if something was wrong and Von told her that his “throat
was hot.” Von remained inside the apartment and, after a few
minutes, returned to the bathroom and started coughing and spitting
again. Shortly thereafter, Von came into the living room, where
Jacqueline was sitting, and told her, “Rolandis made me suck his
dick.” Jacqueline said she questioned Von and he told her that while
he had been outside that morning Rolandis had forced him into a
nearby wooded area and threatened him with a stick if he did not do
what Rolandis wanted. Von told her Rolandis called him names and
made him cry. Also, Von said that, after he did what Rolandis told
him to do, Rolandis made Von “pinky swear” not to tell anyone.
Jacqueline testified that, because of the “pinky swear,” Von did not
want her to tell anyone else what Rolandis had done. Nevertheless,
Jacqueline called the Rockford police department to report what had
happened and within 10 minutes Officer Robert Cure came to
Jacqueline’s apartment to speak to her and Von.
    Officer Cure was the next witness to testify. He told the court that,
on June 25, 2002, he responded to Jacqueline’s call to the Rockford
police department and spoke with Jacqueline and Von at their
apartment. Officer Cure testified that Von told him that Rolandis had
forced Von to “suck his dick” and that Rolandis had been holding a
stick in his hand when he forced Von to perform this act. Von also
told Officer Cure that he had choked while he was performing the act
and that a fluid had come out of Rolandis’ penis. Von told Officer
Cure that, after this happened, he came home and began to wash his
mouth out with water.
    The State’s last witness was Detective Paul Swanberg from the
Rockford police department. He testified that, on July 1, 2002, he
went to the Carrie Lynn Children’s Center in Rockford, a facility
which provides services to child victims of sexual and severe physical
abuse. Von J., accompanied by his mother, came to the Center that
day to be interviewed by child advocate Jackie Weber. Because
Weber was unavailable to testify at trial, Detective Swanberg, who
had observed the interview, testified regarding Weber’s interview
with Von.


                                  -4-
    Detective Swanberg testified that Von’s interview took place in
a room that was equipped with a one-way mirror and a hidden
audio/videotaping device. In accord with Center protocol, Weber’s
interview with Von was videotaped. Von and Weber were the only
people in the room when the interview was conducted. However,
Detective Swanberg and another staff person from the Carrie Lynn
Children’s Center observed the interview via the one-way mirror.
    Detective Swanberg testified that Weber asked Von to identify
various parts of a boy’s body using two anatomical drawings (front
and back). Weber then wrote down Von’s responses on the drawings.
At trial, Detective Swanberg identified the two drawings Weber had
marked and they were placed into evidence.
    Detective Swanberg also testified that when Weber completed her
interview with Von he took a copy of the videotaped interview into
custody. The videotape was placed into an evidence bag and kept at
the police department. At trial, Detective Swanberg identified the
evidence bag and the videotape. Subsequently, the videotape was
played in its entirety for the court. On the videotape, Von told Weber
about the incident with Rolandis, repeating what he had told his
mother and Officer Cure, adding some additional details in response
to Weber’s questioning.
    After presenting its evidence, the State asked for a ruling on its
motions in limine. The court heard the arguments of counsel and then
ruled, in accord with section 115–10(b)(1), that the time, content, and
circumstances under which Von’s statements were made to his
mother, to Officer Cure, and to Jackie Weber provided sufficient
indicia of reliability. The court further ruled that, even though Von
had been unable to answer questions at trial regarding Rolandis’
conduct, Von had “testified” within the meaning of section
115–10(b)(2)(A). Accordingly, the court held that the testimony of
Von’s mother and Officer Cure regarding Von’s out-of-court
statements, as well as Von’s videotaped interview with Jackie Weber,
were admissible as exceptions to the hearsay rule. The State then
rested.
    Defense counsel called Rolandis to testify on his own behalf.
Rolandis admitted that he had been playing with Von on June 25,
2002, and that he had walked Von home through a wooded area near
his home. He denied, however, that he had forced Von to perform any

                                 -5-
sexual acts and could offer no explanation as to why Von would make
up such a story. Defense counsel also called as witnesses Rolandis’
mother, Rolandis’ friend Jessie, and another friend’s mom, Jessica.
These witnesses provided no material evidence with respect to the
charged offense. Although Jessie had been with Von and Rolandis on
June 25, 2002, Jesse testified that he left before Rolandis walked Von
home. Defense counsel attempted to ask the other witnesses questions
about Rolandis’ general character, but the State objected to the line
of questioning and the evidence was ruled inadmissible.
    After hearing counsel’s arguments, the trial court held it was
“convinced beyond a reasonable doubt” that Rolandis was guilty of
committing aggravated criminal sexual assault. The court adjudicated
Rolandis delinquent, made him a ward of the court, and sentenced
him to probation for a period of five years.
    Rolandis appealed his adjudication. He initially argued, based on
section 115–10, that (1) the trial court erred in ruling that Von was an
available witness and (2) the State failed to meet its burden of
producing evidence to corroborate Von’s out-of court statements,
pursuant to section 115–10(b)(2)(B), which it was required to do
because Von was unavailable to testify.
    While Rolandis’ appeal was pending, the United States Supreme
Court filed its decision in Crawford v. Washington, 541 U.S. 36, 158
L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Rolandis then filed a
supplemental brief, claiming that Von’s statements to Officer Cure
and Jackie Weber were testimonial hearsay and, thus, improperly
admitted under Crawford. Rolandis also asked that the appellate court
declare section 115–10 constitutionally invalid to the extent that it
permits the introduction of testimonial out-of-court statements when
the accused has had no prior opportunity to cross-examine the
declarant, in violation of the confrontation clause of the United States
Constitution (U.S. Const., amend. VI).
    On appeal, the State conceded that Von was not available to
testify at trial. As to the remaining issues, the appellate court held that
Von’s statements to Officer Cure and Jackie Weber were
“testimonial” and inadmissible under Crawford because Von did not
testify at trial and respondent had no prior opportunity to cross-
examine him. The court also held that, to the extent that section


                                   -6-
115–10 permits statements such as these to be admitted into evidence,
the statute is unconstitutional.
    The appellate court further found that Von’s statement to his
mother was nontestimonial and sufficiently corroborated. Thus, the
appellate court ruled that Von’s out-of-court statement to his mother
was properly admitted under section 115–10 and Crawford. In
addition, the court held that, for purposes of double jeopardy, the
testimony of Von’s mother was sufficient to support a finding of
guilt. Accordingly, the appellate court reversed Rolandis’
adjudication, but remanded the cause for a new trial. 352 Ill. App. 3d
776.
    The State sought leave to appeal pursuant to Supreme Court Rule
315 (210 Ill. 2d R. 315), arguing that review by this court was crucial
to affirm the constitutionality of section 115–10 and to consider the
proper application of Crawford in situations involving young victims
of sexual crimes. We granted the State’s petition. We also granted the
National District Attorneys Association/American Prosecutors
Research Institute to file an amicus brief.

                               ANALYSIS
    There are three main issues raised by the State in this appeal.
First, the State asks that we find the appellate court erred when it
ruled on respondent’s confrontation clause claim and held that the
videotaped statement Von gave to child advocate Jackie Weber was
“testimonial” under Crawford v. Washington, 541 U.S. 36, 158 L. Ed.
2d 177, 124 S. Ct. 1354 (2004). The State asks that we reverse this
ruling and find that admission of the videotaped statement did not
violate respondent’s right of confrontation. The State maintains that
whether a statement is “testimonial” is a question of law and our
review, therefore, is de novo. See People v. Hall, 198 Ill. 2d 173, 177
(2001) (review of legal questions is de novo).
    The State’s remaining issues are presented as alternative claims
and are raised for the first time before this court. The State contends
that if we affirm the appellate court’s finding that Von’s videotaped
statement to Weber is “testimonial” we must consider: (1) whether
admission of Von’s hearsay statements to Weber and Officer Cure
was harmless error, and (2) whether, pursuant to the doctrine of

                                 -7-
forfeiture by wrongdoing, respondent should be precluded from
raising a confrontation clause claim. The State concedes that neither
of these issues was raised in the court below or in its petition to this
court for leave to appeal, but asks that we excuse any forfeiture of
these issues to promote a just result and to maintain a sound and
uniform body of precedent.

                       I. Confrontation Clause
                  A. Crawford, Davis, and Stechly
    In November 2002, when respondent’s adjudication trial took
place, the juvenile court judge employed section 115–10 to find
Von’s out-of-court statements to his mother, Officer Cure, and Jackie
Weber admissible. Section 115–10 is an Illinois statutory provision
which, when enacted by our legislature, was tailored to comport with
sixth amendment confrontation clause requirements (U.S. Const.,
amend. VI) as delineated in Ohio v. Roberts, 448 U.S. 56, 65 L. Ed.
2d 597, 100 S. Ct. 2531 (1980). See People v. Stechly, 225 Ill. 2d
246, 264 (2007). Under Roberts, it was not a violation of the sixth
amendment confrontation clause to admit out-of-court hearsay
statements into evidence as long as the statements were found to be
reliable, either because the evidence fell within a firmly rooted
hearsay exception or because there were other “particularized
guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 65 L. Ed. 2d
at 608, 100 S. Ct. at 2539.
    In 2004, while respondent’s appeal was pending in the appellate
court, the United States Supreme Court overturned Roberts and
devised a fundamentally new procedure for analyzing confrontation
clause claims. See Crawford v. Washington, 541 U.S. 36, 158 L. Ed.
2d 177, 124 S. Ct. 1354 (2004). In Crawford, the defendant claimed
that his sixth amendment confrontation rights had been violated
because his wife’s tape-recorded statement to police was admitted
into evidence at defendant’s trial although she did not testify at trial
due to defendant’s invocation of the spousal privilege. After engaging
in a lengthy examination of the historical underpinnings of the
confrontation right guaranteed by the sixth amendment, the Court
concluded that when an out-of-court statement is “testimonial” in
nature “the only indicium of reliability sufficient to satisfy


                                  -8-
constitutional demands is the one the Constitution actually prescribes:
confrontation.” Crawford, 541 U.S. at 68-69, 158 L. Ed. 2d at 203,
124 S. Ct. at 1374. Thus, the Court held that testimonial out-of-court
statements may be admitted as evidence at trial only if the declarant
testifies or the declarant is unavailable and the defendant has had a
prior opportunity to cross-examine the declarant. Crawford, 541 U.S.
at 53-54, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365-66. The Court
explained:
             “Where testimonial statements are involved, we do not
         think the Framers meant to leave the Sixth Amendment’s
         protection to the vagaries of the rules of evidence, much less
         to amorphous notions of ‘reliability.’ Certainly none of the
         authorities discussed above acknowledges any general
         reliability exception to the common-law rule. Admitting
         statements deemed reliable by a judge is fundamentally at
         odds with the right of confrontation. To be sure, the Clause’s
         ultimate goal is to ensure reliability of evidence, but it is a
         procedural rather than a substantive guarantee. It commands,
         not that evidence be reliable, but that reliability be assessed in
         a particular manner: by testing in the crucible of
         cross-examination. The Clause thus reflects a judgment, not
         only about the desirability of reliable evidence (a point on
         which there could be little dissent), but about how reliability
         can best be determined.” Crawford, 541 U.S. at 61, 158 L.
         Ed. 2d at 199, 124 S. Ct. at 1370.
    The Court then concluded, “[w]here nontestimonial hearsay is at
issue, it is wholly consistent with the Framers’ design to afford the
States flexibility in their development of hearsay law–as does
Roberts, and as would an approach that exempted such statements
from Confrontation Clause scrutiny altogether. Where testimonial
evidence is at issue, however, the Sixth Amendment demands what
the common law required: unavailability and a prior opportunity for
cross-examination.” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203,
124 S. Ct. at 1374.
    Although the Crawford Court held that sixth amendment
protections turned on whether or not the out-of-court statements
sought to be admitted are “testimonial,” the Court did not attempt to
define what it meant by “testimonial” hearsay. It held, however, that,

                                   -9-
at a minimum, it must include statements made in the course of police
interrogation, as well as statements that are the result of other types
of formal questioning–such as testimony given at a preliminary
hearing, before a grand jury, or at a former trial–where there was no
opportunity for defendant to cross-examine. Crawford, 541 U.S. at
68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.
     As noted above, in the case at bar the appellate court relied on
Crawford to reverse respondent’s adjudication, finding that Von’s
out-of-court statement to Officer Cure and his videotaped statement
to Weber were “testimonial” and, therefore, respondent’s sixth
amendment confrontation rights were violated by their admission.
The State timely filed a petition for leave to appeal from the appellate
court’s judgment. Initially, we held the State’s petition because we
already had before us a factually similar case, People v. Stechly, No.
1–01–2869 (2003) (unpublished order under Supreme Court Rule 23),
which we believed might resolve the issues raised in the case at bar.
While Stechly was before us, the United States Supreme Court
decided Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126
S. Ct. 2266 (2006), which provided additional insight into what the
Court meant by “testimonial” statements.
     In Davis, the Court considered whether statements made to law
enforcement personnel in two separate cases were “testimonial” and,
thus, subject to the requirements of the sixth amendment
confrontation clause. The first case involved statements made during
a tape-recorded call to a 911 emergency operator and the second case
involved statements made by the defendant’s wife to police officers
at the scene of a domestic battery after the altercation had ended. In
both cases the statements were held to be nontestimonial and
admitted into evidence although the declarant did not testify at trial.
     On review, the Court held that the statements made to police
officers at the scene of the domestic altercation were testimonial, but
that the statements made on the 911 tape recording were not. The
distinction was not based on the 911 operator’s status because the
Court assumed that the 911 operator was an agent of the police.
Rather, the Court explained that a statement to law enforcement
personnel will be deemed “nontestimonial” if the circumstances
objectively indicate that the primary purpose of the interrogation is to
gather information to meet an ongoing emergency. On the other hand,

                                 -10-
statements to law enforcement will be deemed “testimonial” if
circumstances objectively indicate there is no ongoing emergency and
the primary purpose of the interrogation is to establish or prove past
events to identify or convict the perpetrator. Davis, 547 U.S. at 826-
30, 165 L. Ed. 2d at 239-40, 126 S. Ct. at 2276.
    With the benefit of both the Crawford and Davis opinions, this
court filed its decision in People v. Stechly, 225 Ill. 2d 246 (2007). In
Stechly, the defendant challenged his convictions for predatory sexual
assault of a child and aggravated criminal sexual assault. He claimed
that, pursuant to Crawford, his sixth amendment confrontation rights
had been violated by the admission of out-of-court statements the
unavailable witness, five-year-old M.M., had made to three persons:
Joan G., M.M.’s mother; Ann Grote, a clinical specialist and head of
the child-abuse team at the hospital where M.M. was taken for
examination; and Perry Yates, the social worker at the school where
M.M. attended kindergarten.
    In a plurality decision, Stechly’s convictions were reversed and
the matter remanded to the circuit court with directions that a hearing
be held on the issue of forfeiture by wrongdoing. Applying Crawford
to the defendant’s confrontation clause claim, we first looked at the
threshold issue, i.e., whether the out-of-court statements were
“testimonial.” Six justices agreed that M.M.’s statements to her
mother were nontestimonial and that her statements to Grote and
Yates were testimonial. However, three of the six justices (Justices
Freeman, Fitzgerald and Burke) held that admission of the testimonial
statements could not be considered harmless error and that reversal
was required, while the other three justices (Chief Justice Thomas and
Justices Garman and Karmeier) dissented from the reversal, holding
that the admission of the testimonial hearsay did not amount to
reversible error “in light of the overwhelming evidence against
defendant that was properly admitted.” Stechly, 225 Ill. 2d at 330
(Thomas, C.J., dissenting, joined by Karmeier, J.). Justice Kilbride
agreed that reversal was required, but reached that conclusion for
reasons that were different from those expressed by the plurality.
Justice Kilbride held that M.M.’s statements should have been
excluded pursuant to section 115–10 because the evidence did not
adequately show that M.M. was “unavailable” to testify. Also,
employing an analysis that did not take into consideration the age of

                                  -11-
the child-declarant, Justice Kilbride found that all of M.M.’s
statements, including those made to her mother, were testimonial.
    After we filed our decision in Stechly, we granted the State’s
petition for leave to appeal in the case at bar. Crawford, Davis and
Stechly provide us with an understanding of the current parameters of
the confrontation clause guarantee. Keeping them in mind, we now
turn to the case at bar.

      B. Admissibility of Von’s Videotaped Statement to Weber
                              1. Forfeiture
    At the outset, the State presents a brief, one-paragraph argument
contending that respondent forfeited the right to raise a confrontation
clause claim by his failure to object at trial, on confrontation clause
grounds, to the admission of hearsay testimony. We rejected an
identical argument in Stechly and for the reasons expressed therein
reject the State’s claim here as well.
    As we explained in Stechly, Crawford announced a fundamentally
new rule regarding the effect of the confrontation clause on the
admission of hearsay statements and, thus, the rule should be applied
retroactively to all cases pending on direct review or not yet final
when Crawford was decided. Stechly, 225 Ill. 2d at 268, quoting
People v. Sisavath, 118 Cal. App. 4th 1396, 1400, 13 Cal. Rptr. 3d
753, 756 (2004). Moreover, as we recognized in Stechly, “it would be
manifestly unfair to hold defendant to have waived claims by not
raising them at trial when those claims are based on a rule which was
only announced during the pendency of his appeal.” Stechly, 225 Ill.
2d at 268. This reasoning is equally applicable to the case at bar.
Here, too, fairness requires a finding that respondent did not forfeit
the right to raise a confrontation clause claim by his failure to make
a more specific objection at trial to the admission of hearsay
testimony.

 2. Videotaped Statement to Weber: Testimonial or Nontestimonial
    The State agrees that, pursuant to Stechly, Von’s statement to his
mother was nontestimonial and his statement to Officer Cure was
testimonial. The State’s only challenge is to the appellate court’s
determination that Von’s videotaped statement to Weber was

                                 -12-
testimonial. The State asks that we reverse this determination,
maintaining that the videotaped statement is nontestimonial because
neither Von nor Weber was acting to a substantial degree to produce
a statement for future trial. In support of this contention, the State
maintains that: (1) there is no evidence to show Weber’s intent
because Weber did not testify at trial, (2) in general, the primary
concern of child advocates and child advocacy centers, such as the
Carrie Lynn Children’s Center here, is the physical, mental and
emotional welfare of child victims; (3) Weber’s interview occurred
prior to the time that Rolandis was arrested and the juvenile petition
was filed, indicating that the purpose of the interview was to assess
whether abuse occurred, rather than prepare for trial; and (4) Weber
was not acting as an agent of law enforcement because, as a child
advocate, her primary focus was the best interests of the child.
     The State admits that a majority of courts in other jurisdictions
have held statements made to child advocates, under circumstances
similar to those here, to be testimonial. However, the State argues that
these cases are distinguishable or wrongly decided. Further, the State
insists that the fact that Weber conducted her videotaped interview
with Von under the observation of a police officer does not mean that
Weber was acting as an agent of law enforcement. The State asks that
we take into consideration the fact that Weber’s interview was
conducted as part of a statutorily encouraged, multidisciplinary
response to child sexual abuse, the purpose of which is to reduce
trauma to child victims. The State contends that a failure to recognize
these multidisciplinary interviews as nontestimonial will “discourage
collaboration and video-taping, which is important in limiting the
trauma to which children are subjected when they are involved in
such investigations.”
     Finally, the State contends that, because Weber’s interview was
not police interrogation, we may consider the viewpoint of the
declarant, six-year-old Von J., in determining whether the statement
is testimonial. The State urges us to find that, in the case at bar, Von’s
videotaped statement is nontestimonial because a reasonable six-year-
old would not have anticipated that his statement to Weber would be
used for a future prosecution.
     In response, Rolandis argues that the circumstances of this case
objectively indicate that Weber was acting as an agent of the police

                                  -13-
and that the primary purpose of her interview was to establish or
prove past events that would be relevant in a future criminal
prosecution. Thus, respondent contends that the appellate court
correctly ruled that the videotaped statement to Weber was
testimonial and should not have been admitted. We agree.
     In Stechly, the plurality devised a framework for determining
whether an out-of-court statement is testimonial. It held that a
testimonial statement is one which is (1) made in a solemn fashion,
and (2) intended to establish a particular fact. In general, a statement
is testimonial if the declarant is acting in a manner analogous to a
witness at trial, describing or giving information regarding events that
have already occurred. Stechly, 225 Ill. 2d at 281-82. Of course, this
framework begs the question, “Whose intent is determinative–the
questioner or the declarant?” After reviewing Crawford and Davis,
the Stechly plurality concluded that, when the statement under
consideration is the product of questioning, either by the police or
someone acting on the behalf of law enforcement, it is the objective
intent of the questioner that is determinative. Stechly, 225 Ill. 2d at
284-85. However, where statements are not the product of law
enforcement interrogation, the proper focus is on the intent of the
declarant and the inquiry should be whether the objective
circumstances would lead a reasonable person to conclude that his
statement could be used against the defendant. Stechly, 225 Ill. 2d at
288-89. Moreover, the plurality held that, when the declarant is a
child, the child’s age may be “one of the objective circumstances to
be taken into account in determining whether a reasonable person in
his or her circumstances would have understood that his or her
statement would be available for use at a later trial.” Stechly, 225 Ill.
2d at 295-96.
     Applying this framework to the case at bar, we first must
determine whether Von’s tape-recorded interview with Weber
resulted in a testimonial statement, i.e., whether it was solemn
statement made with the intent of establishing facts regarding past
events. Pursuant to Stechly, the first step in this inquiry is to
determine whether Weber was acting as a representative of the police
when she obtained Von’s recorded statement.
     As the State points out, the Carrie Lynn Children’s Center, where
Von’s interview took place, is one of several accredited child

                                  -14-
advocacy centers in this state “established to coordinate the activities
of the various agencies involved in the investigation, prosecution and
treatment referral of child sexual abuse.” 55 ILCS 80/4(a) (West
2002). Weber, a child advocate and employee of the Center,
interviewed Von in furtherance of the “interdisciplinary, coordinated
systems approach to the investigation of child sexual abuse.” See 55
ILCS 80/4(c)(1) (West 2002). Although Weber did not testify and the
record is silent as to the actual purpose of her interview with Von, the
record, from an objective viewpoint, indicates 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. Moreover, because the interview was
witnessed by Detective Swanberg and a copy of the videotaped
interview immediately turned over to him “as evidence” upon
completion of the interview, the objective circumstances indicate that
Von’s statement was the product of an interrogation, conducted on
behalf of the police, intended to gather information and establish past
acts for future prosecution. Clearly, then, it must be concluded that
Weber was acting as a representative of the police, assisting in their
investigation of an alleged child sexual abuse, when she interviewed
Von.
    It is true that the purpose of this type of interdisciplinary,
collaborative protocol is to “minimize the stress created for the child
and his or her family by the investigatory and judicial process, and to
ensure that more effective treatment is provided for the child and his
or her family.” See 55 ILCS 80/3(d) (West 2002). However, there is
absolutely no indication that, in the case at bar, Weber’s interview of
Von was conducted, to a substantial degree, for treatment rather than
investigative purposes. Accordingly, we are compelled to conclude
that Von’s videotaped statement was testimonial in nature and,
because Von did not testify at trial and there was no prior opportunity
for cross-examination, it was improperly admitted in violation of
respondent’s confrontation rights. The appellate court’s judgment in
this regard must be affirmed.
    We note, additionally, that our conclusion here is supported by
decisions rendered in other jurisdictions. As the State concedes, “the
majority of courts to consider the question have found statements to
child abuse advocates such as social workers to be testimonial.” One

                                 -15-
such case is State v. Snowden, 385 Md. 64, 867 A.2d 314 (2005). In
Snowden, a social worker for Montgomery County Child Protective
Services in Maryland interviewed three minors (two 10-year-olds and
an 8-year-old) who were victims of sexual abuse. The interview took
place at the Child Assessment Center in Rockville and was part of a
joint investigation with the Montgomery County police department.
The Court of Appeals of Maryland held that the statements made to
the social worker (Wakeel) were testimonial, stating:
            “[W]e find that the structure, location, and style of the
        interviews actually support the notion that the children’s
        interviews were a formal and structured interrogation where
        the responses reasonably would be expected to be used at a
        later trial. The fact that the interviews were conducted by a
        licensed sexual abuse investigator, rather than a police officer,
        is of little persuasive weight in our analysis. ***
            Wakeel’s role as interviewer was little different from the
        role of a police officer in a routine police interrogation.
        Wakeel became involved only after being contacted by the
        Montgomery County Police Department, which informed her
        of the substance of the children’s accusations. Because
        Wakeel was performing her responsibilities in response and
        at the behest of law enforcement, she became, for
        Confrontation Clause analysis, an agent of the police
        department.” Snowden, 385 Md. at 85-86, 867 A.2d at 326-
        27.
    Similarly, in People v. Sisavath, 118 Cal. App. 4th 1396, 1402,
1400, 13 Cal. Rptr. 3d 753, 757, 756 (2004), the videotaped statement
of a four-year-old sex abuse victim was held to be testimonial. In that
case, the child was interviewed by a “forensic interview specialist” at
the Fresno County Multi-Disciplinary Interview Center, “a facility
specially designed and staffed for interviewing children suspected of
being victims of abuse.” The interview was observed by a district
attorney and a police officer. The court held that the videotaped
statement obtained at this interview was testimonial, stating:
        “Under these circumstances, it does not matter what the
        government’s actual intent was in setting up the interview,
        where the interview took place, or who employed the
        interviewer. It was eminently reasonable to expect that the

                                  -16-
        interview would be available for use at trial.” Sisavath, 118
        Cal. App. 4th at 1403, 13 Cal. Rptr. 3d at 758.
    More recently, a Florida appellate court reached the same
conclusion in Hernandez v. Florida, 946 So. 2d 1270 (Fla. App.
2007).2 In Hernandez, an officer investigating the alleged sexual
abuse of a child took the child and her parents to the local hospital. At
the hospital, a nurse, who was a member of the Child Protection
Team (CPT), physically examined the child and questioned her and
her parents about the alleged abuse. Because a week had passed since
the alleged abuse had occurred, no specimens were taken and no
treatment was provided. Also, no referral was made to a physician for
follow-up treatment or examination.
    The nurse’s testimony regarding the child’s responses to
questioning was admitted at trial pursuant to state statute. However,
on review, the court held that the child’s statement to the nurse was
testimonial and the nurse’s testimony was inadmissible because her
interview with the child and the child’s parents was “the functional
equivalent of a police interrogation.” Hernandez, 946 So. 2d at 1280.
The court noted four factors that contributed to its determination: (1)
the nurse, as a member of the CPT, was an arm of law enforcement,
statutorily bound to work with the police to provide various services
“directed to the detection, investigation, and prosecution of child
abuse”; (2) the nurse was working in concert with the police, as
evinced by the fact that after her examination and questioning of the
child, the investigating officer, who had remained at the hospital
during the interview, made the decision to charge the defendant; (3)
the primary purpose of the examination and questioning was to gather
facts for a potential prosecution; and (4) when the interview took
place the child was in a place of safety and there was no indication of
an ongoing emergency. Hernandez, 946 So. 2d at 1280-82.
    These same factors are present in the case at bar. The child
advocate who interviewed Von was employed by a licensed advocacy


     2
       In Hernandez, the court cited a number of cases from various
jurisdictions, including Snowden and Sisavath, which we have cited above,
wherein courts have found statements to be testimonial under facts similar
to those present here. See Hernandez, 946 So. 2d at 1284-85.

                                  -17-
center and, pursuant to the Children’s Advocacy Center Act, this
Center not only worked in concert with other agencies involved in the
investigation and prosecution of child sexual abuse, it was obligated
to share information it obtained with the police. See 55 ILCS
80/4(c)(2) (West 2002). Respondent was not charged until after
Weber’s interview took place and Detective Swanberg had retained
a copy of the videotaped interview as evidence. Furthermore, since
there is no indication that the primary purpose of the interview was
for treatment and because Von was no longer in any danger from the
respondent, it must be concluded that the main purpose of the
interview was to gather information about past events for potential
future prosecution. Thus, here, as in Hernandez, the only conclusion
we can reach is that the child’s statement to the child advocate was
testimonial.
    We are not unsympathetic to the State’s concern that child abuse
victims are often unavailable to testify because of their tender years
and, for that reason, “Crawford is incompatible with the realities of
child abuse prosecutions.” However, the Court in Davis, when faced
with a similar argument in regard to victims of domestic violence,
stated, “We may not, however, vitiate constitutional guarantees when
they have the effect of allowing the guilty to go free.” Davis, 547 U.S.
at 832-33, 165 L. Ed. 2d at 243-44, 126 S. Ct. at 2279-80. Thus here,
too, we may not abridge constitutional guarantees simply because
they are a hindrance to the prosecution of child sexual abuse crimes.

                   C. The State’s Alternative Claims
                  1. Procedural Default and Forfeiture
    As noted above, the State never argued in the appellate court, or
raised as an issue in its petition for leave to appeal, that the admission
of Von’s out-of-court statements to Weber and Officer Cure, though
improper, was harmless error. Nor did the State argue below, or in its
petition for leave to appeal, that respondent should be precluded from
raising a confrontation clause claim pursuant to the doctrine of
“forfeiture by wrongdoing.” The State concedes that by raising these
issues for the first time in its brief before this court, the issues may be
deemed forfeited and we need not consider them. The State, however,



                                   -18-
asks that we excuse the forfeiture and consider the issues on their
merits.
     Respondent does not contend that we should forgo addressing the
State’s alternative claims because they have been procedurally
defaulted due to the failure to raise them below. Nor does respondent
object to reaching the merits of the State’s claims on the ground that
the issues were not included in the petition for leave to appeal and are
being raised for the first time in the State’s brief before this court.
Thus, respondent has forfeited any procedural default or forfeiture by
the State.
     Nevertheless, in recently filed opinions of this court, the failure
to include a claim in a petition for leave to appeal has been raised sua
sponte by this court and relied upon to deny consideration of the
claim. See, e.g., People v. Whitfield, 228 Ill. 2d 502 (2007); People
v. Robinson, 223 Ill. 2d 165 (2006). Accordingly, one could interpret
these cases as suggesting that the failure to include an issue in a
petition for leave to appeal stands as an absolute bar to review by this
court. Such an interpretation of these cases, however, would be
incorrect. This court has long held that the failure to raise an issue in
a petition for leave to appeal is not a jurisdictional bar to this court’s
ability to review a matter but, rather, “a principle of administrative
convenience.” See Dineen v. City of Chicago, 125 Ill. 2d 248, 265-66
(1988). In other words, this court always has the authority to review
a matter not properly preserved, or may decline to do so, as a matter
of discretion. Although that discretion should not be exercised
arbitrarily, review of an issue not specifically mentioned in a petition
for leave to appeal will be appropriate when that issue is “inextricably
intertwined” with other matters properly before the court. Hansen v.
Baxter Healthcare Corp., 198 Ill. 2d 420, 430 (2002).
     In a situation, such as here, where a court of review determines
that certain evidence was improperly admitted at trial, it is entirely
appropriate to consider whether any exceptions to inadmissibility
apply and whether the admission of evidence, though error, was
harmless. These matters are inextricably intertwined with the
determination of whether the error that occurred requires reversal.
Thus, we consider the State’s alternative claims despite its failure to
present them in the petition for leave to appeal.


                                  -19-
                     2. Forfeiture by Wrongdoing
    The State asks us to find that respondent forfeited the right to
challenge the admission of Von’s testimonial hearsay statements on
confrontation grounds because respondent’s wrongdoing caused
Von’s unavailability. The State acknowledges that, in Stechly, this
court was split on the proper application of the forfeiture-by-
wrongdoing doctrine–four justices held that a defendant forfeits his
confrontation rights only if he acts with the intention of causing the
witness to be unavailable to testify and that it is insufficient to show
that the wrongful conduct was causally linked to the witness’
unavailability; two justices held that it was unnecessary to show that
the accused intended to prevent the witness from testifying when he
committed the wrong. The State contends, however, that even the
Stechly plurality recognized that most courts have held that intent
need not be proven and may be presumed when the wrongdoing is
murder. The State, therefore, asks that we expand on this concept and
hold that in child sexual abuse cases, as in murder cases, intent may
be presumed.
    The State explains its rationale, stating, “in child sexual abuse
cases, the abuse may well cause the victim to be unavailable to testify
at trial *** because of trauma, fear, or the victim’s predisposed
incompetence to testify.” The State also cites public policy and the
“high importance” society places on protecting children as additional
reasons for permitting courts to presume an intent to prevent the
witness from testifying when applying the forfeiture-by-wrongdoing
doctrine in child sexual abuse cases.
    As an alternative argument, the State contends that, even if we
decline to hold that intent may be presumed in child sexual abuse
cases, we should find that intent was proven in the case at bar. As
evidence that respondent intended to prevent Von from testifying, the
State points to the evidence that respondent made Von “pinky swear”
not to tell anyone about the abuse.
    The State’s arguments concerning forfeiture by wrongdoing were
presented in its brief, which was submitted prior to the time that the
United States Supreme Court released its decision in Giles v.
California, 554 U.S. ___, 171 L. Ed. 2d 488, 128 S. Ct. 2678 (2008).
Giles demonstrates the proper application of the forfeiture-by-
wrongdoing doctrine as it relates to an accused’s sixth amendment

                                 -20-
confrontation rights and resolves the debate over the necessity of
proving intent. In light of Giles, we must reject the State’s arguments
concerning the application of forfeiture by wrongdoing in the case at
bar.
    In Giles, the defendant shot and killed his ex-girlfriend, Avie,
outside defendant’s grandmother’s home. Although Avie was shot six
times, the defendant claimed self-defense, testifying that Avie was
jealous, that he knew her to have violent tendencies, and that Avie
had come to his grandmother’s that day and threatened to kill him and
his girlfriend. The prosecution introduced statements Avie had made
to a police officer three weeks prior to the shooting when the officer
had responded to a domestic violence call. The officer testified that
Avie told him defendant accused her of having an affair and had
choked her, punched her in the head, and threatened her with a knife,
saying that he would kill her if he found that she was cheating on
him. After defendant was convicted, he challenged the admission of
Avie’s out-of-court statement to the officer. On review, the California
Supreme Court ruled that the statement was admissible under
Crawford pursuant to the doctrine of forfeiture by wrongdoing. The
court held that defendant had forfeited his right of confrontation
because he committed the murder, an intentional criminal act, that
rendered Avie unavailable.
    The United States Supreme Court reversed, finding that the theory
of forfeiture by wrongdoing, which was employed by the California
Supreme Court to find the out-of-court statement admissible, was not
a recognized exception to the sixth amendment confrontation
requirement. The Court held that at common law an unconfronted
testimonial statement could not be admitted without a showing that
the defendant intended to prevent the witness from testifying. Giles,
554 U.S. at ___, 171 L. Ed. 2d at 497, 128 S. Ct. at 2684. In other
words, according to the Court, for forfeiture by wrongdoing to apply,
the evidence had to show that the defendant engaged in witness
tampering or some type of conduct designed to prevent the witness
from testifying, thwart the judicial process, or procure the witness’
absence from trial. Giles, 554 U.S. at ___, 171 L. Ed. 2d at 495-96,
128 S. Ct. at 2683. The Court further noted that it was not an accepted
practice at the time the Constitution was adopted to admit statements


                                 -21-
on the ground that the defendant’s crime was to blame for the
witness’ absence. The Court stated:
        “The notion that judges may strip the defendant of a right that
        the Constitution deems essential to a fair trial, on the basis of
        a prior judicial assessment that the defendant is guilty as
        charged, does not sit well with the right to trial by jury. It is
        akin, one might say, to ‘dispensing with jury trial because a
        defendant is obviously guilty.’ Crawford, 541 U.S., at 62.”
        (Emphasis in original.) Giles, 554 U.S. at ___, 171 L. Ed. 2d
        at 499, 128 S. Ct. at 2686.
    The Court’s majority also rejected a suggestion by the dissent that
special confrontation rules might be applicable based on the status of
the victims, for example, where the victims are women in abusive
relationships. The Giles majority stated:
            “The dissent closes by pointing out that a forfeiture rule
        which ignores Crawford would be particularly helpful to
        women in abusive relationships–or at least particularly helpful
        in punishing their abusers. Not as helpful as the dissent
        suggests, since only testimonial statements are excluded by
        the Confrontation Clause. Statements to friends and neighbors
        about abuse and intimidation, and statements to physicians in
        the course of receiving treatment would be excluded, if at all,
        only by hearsay rules, which are free to adopt the dissent’s
        version of forfeiture by wrongdoing. In any event, we are
        puzzled by the dissent’s decision to devote its peroration to
        domestic abuse cases. Is the suggestion that we should have
        one Confrontation Clause (the one the Framers adopted and
        Crawford described) for all other crimes, but a special,
        improvised, Confrontation Clause for those crimes that are
        frequently directed against women? Domestic violence is an
        intolerable offense that legislatures may choose to combat
        through many means–from increasing criminal penalties to
        adding resources for investigation and prosecution to funding
        awareness and prevention campaigns. But for that serious
        crime, as for others, abridging the constitutional rights of
        criminal defendants is not in the State’s arsenal.” (Emphasis
        in original.) Giles, 554 U.S. at ___, 171 L. Ed. 2d at 505-06,
        128 S. Ct. at 2692-93.

                                  -22-
     The Giles majority conceded that domestic violence might be a
relevant factor in determining whether the forfeiture-by-wrongdoing
exception is applicable, stating:
         “Acts of domestic violence often are intended to dissuade a
         victim from resorting to outside help, and include conduct
         designed to prevent testimony to police officers or
         cooperation in criminal prosecutions. Where such an abusive
         relationship culminates in murder, the evidence may support
         a finding that the crime expressed the intent to isolate the
         victim and to stop her from reporting abuse to the authorities
         or cooperating with a criminal prosecution–rendering her
         prior statements admissible under the forfeiture doctrine.”
         Giles, 554 U.S. at ___, 171 L. Ed. 2d at 506, 128 S. Ct. at
         2693.
     Based on the above, the Giles majority makes clear that,
regardless of how expedient or beneficial it might be to the victim to
permit his or her unconfronted, testimonial hearsay to be admitted at
trial, the right of confrontation guaranteed an accused by our
Constitution must take precedence. The doctrine of forfeiture by
wrongdoing may not be employed to deny an accused his
confrontation right absent evidence that, when committing the crime
or other wrongdoing, the accused was motivated by the desire to
prevent the witness from testifying against him at trial.
     Applying Giles to the case at bar, we find no evidence that
respondent ever committed any wrongdoing with the intended
purpose that Von be unavailable to testify at trial. It is true that sexual
abusers sometimes select children as their victims because children
are generally more vulnerable to threats and coercion due to their age
and immaturity. However, in the case at bar, there is no indication
that when respondent sexual assaulted Von, his assault was motivated
in any way by a desire to prevent Von from bearing witness against
him at trial. We recognize that, according to the record, after
respondent assaulted Von he made Von “pinky swear” not to tell
anyone what happened in an attempt to keep his crime a secret.
However, there is nothing in the record to indicate that when
respondent extracted the promise from Von, he did so in
contemplation of some future trial. Thus, whether Von’s refusal to
testify at trial was due to his embarrassment or because of his “pinky

                                   -23-
swear” to respondent is of no matter. Respondent’s confrontation
rights may not be abridged unless he acted with the intended purpose
of procuring Von’s absence from trial. Since there is no evidence that
respondent intentionally committed any wrongdoing for the purpose
of procuring Von’s unavailability at trial, the forfeiture-by-
wrongdoing doctrine is inapplicable to the case at bar. Having
reached this determination, we will go on to determine whether the
admission of the testimonial statements to Officer Cure and Jackie
Weber, though error, was harmless.

                            3. Harmless Error
    As noted in Stechly, Crawford violations are subject to harmless-
error review and the test is whether it appears beyond a reasonable
doubt that the error at issue did not contribute to the verdict obtained.
Stechly, 225 Ill. 2d at 304, citing People v. Patterson, 217 Ill. 2d 407,
428 (2005). When deciding whether error is harmless, a reviewing
court may (1) focus on the error to determine whether it might have
contributed to the conviction; (2) examine the other properly admitted
evidence to determine whether it overwhelmingly supports the
conviction; or (3) determine whether the improperly admitted
evidence is merely cumulative or duplicates properly admitted
evidence. Stechly, 225 Ill. 2d at 304-05, quoting Patterson, 217 Ill. 2d
at 428, citing People v. Wilkerson, 87 Ill. 2d 151, 157 (1981). In the
case at bar, we find that the properly admitted evidence
overwhelmingly supports the conviction and, for that reason, the
admission of Von’s testimonial statements to Officer Cure and Weber
was harmless beyond a reasonable doubt.
    Unlike the situation in Stechly, here there was no inconsistency
regarding the perpetrator’s identity. The properly admitted testimony
of Von’s mother, Jacqueline M., revealed that, on the day in question,
Von came home sometime after noon accompanied by respondent.
Jacqueline heard respondent, who waited at the door, call to Von and
ask him to come back outside. Uncharacteristically, Von declined and
respondent left. Von, immediately upon arriving home, went directly
to the bathroom and began to act strangely: coughing, spitting, and
washing his mouth out with water. After returning to the bathroom a
second time to wash his mouth out with water, Von spontaneously
revealed to Jacqueline that respondent had made him “suck his dick.”

                                  -24-
     Von’s actions upon his return home, which Jacqueline witnessed,
correlated to the type of sexual abuse Von said occurred and strongly
indicated that the abuse occurred very recently, at a time when Von
had been solely in respondent’s company. Respondent admitted at
trial that he alone walked Von home, through the wooded area. We
find that Jacqueline’s testimony about her observations of Von’s
behavior, in addition to her testimony regarding Von’s statement to
her, overwhelmingly supports the conviction in this case.
     We recognize that in Stechly, a case similar to the one at bar, a
plurality of this court found the improper admission of testimonial
statements by two witnesses was not harmless. However, the
circumstances in Stechly were considerably different and distinguish
Stechly from the case before us. In Stechly, the five-year-old victim,
M.M., did not make an immediate outcry. Brenda Galete, M.M.’s
babysitter, learned from M.M. on January 13, 1999, that “Bob” had
sexually abused M.M. nearly a month earlier, in December 1998.
Upon obtaining this information, Galete drove to where M.M.’s
mother, Joan, worked and insisted that M.M. be taken to the hospital.
At the hospital, M.M. told clinical specialist Ann Grote about the
sexual abuse by “Bob.” Grote did not inquire into who “Bob” was.
Instead, Joan identified “Bob” as defendant, Robert Stechly, who
lived in Joan’s apartment building and was, at that time, Joan’s
boyfriend. Subsequently, Stechly was arrested and charged with
predatory criminal sexual assault, criminal sexual assault, and
aggravated criminal sexual abuse of M.M.
     At trial, a serious question arose concerning whether M.M. had,
in fact, identified defendant as her abuser. Prior to defendant’s trial,
at the reliability hearing, Joan testified that, on January 13, 1999, after
Galete came to her place of employment and they were en route to the
hospital, M.M. described an incident of sexual abuse and told her that
“Bob” had been the perpetrator. Although M.M. only identified the
abuser as “Bob,” Joan said she had understood M.M. to mean the
defendant, Bob Stechly. At trial, however, Joan testified that, during
the trip to the hospital, M.M. actually told her that “Robert Stechly”
was the abuser, identifying him by name. This deviation in Joan’s
testimony became significant because Brenda Galete testified, in
contradiction to Joan’s testimony, that Bob Reilly, Joan’s nephew,
who also lived in an apartment in Joan’s building, babysat M.M. “a

                                   -25-
lot” and that M.M. “acted strangely” around men in November 1998,
long before the time in December 1998 when defendant babysat
M.M. and allegedly abused her. Brenda Galete also testified that, on
January 13, 1999, when M.M. told her about the abuse, M.M. never
specified who “Bob” was. Further, Galete testified that she did not
hear M.M. tell Joan anything about the abuse during the trip to the
hospital and that she believed that there were others who had
molested M.M., including Joan, M.M.’s mother. Also, although
defendant had confessed to sexually abusing M.M. after his arrest, the
confession was discredited at trial.
    It is clear from the facts above that, in Stechly, the testimony
concerning M.M.’s hearsay statements was, with respect to
defendant’s identity, both inconsistent and the subject of some
dispute. Also, as the Stechly plurality pointed out, defendant’s
original jury trial resulted in a mistrial because the jury was unable to
reach a consensus on any of the counts. Though not dispositive, the
plurality believed that this fact lent credence to the notion that the
evidence of defendant’s guilt was closely balanced, even when the
improperly admitted evidence was taken into account.
    Following the mistrial, defendant was found guilty after a
stipulated bench trial. The trial judge considered the same evidence
heard by the jury, including the improperly admitted testimony of the
hospital clinical specialist, Ann Grote, and the school social worker,
Perry Yates. Grote had testified that M.M. identified her abuser only
as “Bob,” but Yates had testified that when he interviewed M.M. at
school, he began the interview by asking M.M. to “tell me about
Robert Stechly.” The testimony of Yates, in particular, gave
heightened support to the notion that M.M. had identified defendant
as the perpetrator. For this reason, the improperly admitted evidence
tended to resolve the controversy over the identity of M.M.’s abuser
and, thus, was not simply cumulative to the properly admitted
evidence. Certainly, then, the properly admitted evidence, standing
alone, did not overwhelmingly establish the defendant’s guilt.
    Unlike the situation in Stechly, in the case at bar, the properly
admitted testimony of Von’s mother, Jacqueline, was clear and
uncontroverted. It overwhelmingly established respondent’s guilt.
The improperly admitted evidence was largely repetitive of the
evidence presented by Jacqueline and did not resolve any material

                                  -26-
issue. We conclude, therefore, that the admission of Von’s
testimonial statements made to Officer Cure and Weber, though error,
was, under the facts of this case, harmless beyond a reasonable doubt.

                II. Constitutionality of Section 115–10
    We note that the State argued in its petition for leave to appeal
and in its opening brief to this court that the appellate court below
found section 115–10 unconstitutional and, therefore, that it was
necessary for this court to consider whether the statute could be saved
by severing the offending portions of the statutory provision. In its
reply brief, however, the State concedes that there is no need to sever
any portion of the statute because the appellate court made only an as-
applied finding of unconstitutionality and, thus, the statute will
continue to be enforceable in circumstances where it is not
unconstitutional. The State cites People v. Brady, 369 Ill. App. 3d
836, 847-48 (2007), which held that when a statute is unconstitutional
as applied, the State may continue to enforce the statute in
circumstances where it is not unconstitutional.
    The State has withdrawn the part of its opening brief wherein it
addressed the constitutionality and severability of section 115–10.
Consequently, the issue is no longer before us.

                             CONCLUSION
     We agree with the appellate court’s ruling that Von’s videotaped
statement to child advocate Jackie Weber was testimonial under
Crawford and, for that reason, the admission of the statement at
respondent’s adjudication trial was in violation of respondent’s
confrontation right. We have found, however, that the error in
admitting this statement was harmless beyond a reasonable doubt
because the properly admitted evidence overwhelmingly supports
respondent’s conviction. Accordingly, we reverse the appellate court
judgment, which reversed respondent’s adjudication, and we remand
to the circuit court with instructions that respondent’s adjudication be
reinstated.

                                  Appellate court judgment reversed;


                                 -27-
                                                     cause remanded.

    JUSTICE THOMAS, specially concurring:
    I agree entirely with the outcome and analysis in this case,
including the conclusion that the erroneous admission of Von’s
statements to Cure and Weber was harmless beyond a reasonable
doubt. I write separately only to reaffirm my belief that the erroneous
admission of the statements at issue in Stechly was likewise harmless
beyond a reasonable doubt. See Stechly, 225 Ill. 2d at 346-53
(Thomas, C.J., dissenting, joined by Karmeier, J.).

     JUSTICE KILBRIDE, also specially concurring:
     I agree with the majority’s holding in all respects other than its
framework for determining whether the statement to child advocate
Jacqueline Weber was testimonial. As set forth in my dissent in
Stechly, I believe the proper focus of the inquiry is whether a
reasonable adult in the declarant’s position would anticipate that the
statement likely would be used in a criminal prosecution. Stechly, 225
Ill. 2d at 324-25 (Kilbride, J., concurring in part and dissenting in
part). Applying that standard to the facts of this case results in
agreement with the majority’s conclusion that the statement to Weber
was testimonial. Accordingly, I specially concur in the majority’s
decision.
     In Stechly, the plurality devised a test for determining whether a
statement is testimonial that shifts the focus from the declarant’s
intent to that of the questioner depending on the circumstances of the
case. See Stechly, 225 Ill. 2d at 284-92. The plurality held that the
objective intent of the declarant is the focus of the inquiry when a
statement is not produced by law enforcement interrogation. Stechly,
225 Ill. 2d at 289. The standard is whether the objective
circumstances would lead a reasonable person to anticipate that his or
her statement likely would be used in a criminal prosecution. Stechly,
225 Ill. 2d at 292. When a statement is produced by law enforcement
interrogation, however, the focus is on the questioner’s objective
intent in eliciting the statement. Stechly, 225 Ill. 2d at 284-85.
     The shifting focus of the inquiry from Stechly was based on the
plurality’s reading of the Supreme Court’s decision in Davis v.

                                 -28-
Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266
(2006). Stechly, 225 Ill. 2d at 267-68. The plurality acknowledged
that, prior to Davis, many authorities had concluded that the focus of
the inquiry was always on the declarant’s intent in giving the
statement. Stechly, 225 Ill. 2d at 290-91. According to the plurality,
though, Davis modified the analysis by indicating that when a
statement is the product of police questioning, the intent of the law
enforcement officer in taking the statement is the focus. Stechly, 225
Ill. 2d at 267.
     I continue to disagree with the plurality’s interpretation of Davis.
As explained in my separate writing in Stechly, the Supreme Court’s
decision in Davis did not change the focus of the inquiry for
determining whether a statement is testimonial. Stechly, 225 Ill. 2d at
324-25 (Kilbride, J., concurring in part and dissenting in part).
Rather, Davis indicated that the perspective of the declarant remains
the focus of the inquiry. As noted in Davis, “even when interrogation
exists, it is in the final analysis the declarant’s statements, not the
interrogator’s questions, that the Confrontation Clause requires us to
evaluate.” Davis, 547 U.S. at 822 n.1, 165 L. Ed. 2d at 237 n.1, 126
S. Ct. at 2274 n.1. Further, the Stechly plurality acknowledged
“ultimately it is the declarant’s intent to which the confrontation
clause looks.” Stechly, 225 Ill. 2d at 290. Thus, I continue to believe
that the intent of the declarant is always the proper focus in
determining whether a statement is testimonial.
     In Stechly, I also disagreed with the plurality’s conclusion that a
child’s age “is among the circumstances potentially relevant to
evaluating whether the objective circumstances of the statement
would have led a reasonable declarant to understand that his or her
statement could be used in a subsequent prosecution of the
defendant.” Stechly, 225 Ill. 2d at 296. In my view, the cases deciding
that a child’s age should not be considered are persuasive. Stechly,
225 Ill. 2d at 325 (Kilbride, J., concurring in part and dissenting in
part) (citing People v. Sisavath, 118 Cal. App. 4th 1396, 1402 n.3, 13
Cal. Rptr. 3d 753, 758 n.3 (2004), and State v. Snowden, 385 Md. 64,
90-91, 867 A.2d 314, 329 (2005)).
     Specifically, the Snowden court recognized that the confrontation
clause is designed to protect fundamental rights of the accused and
the interest in shielding victims from testifying may never outweigh

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the explicit constitutional right to be confronted with the witnesses at
trial. Snowden, 385 Md. at 90, 867 A.2d at 329, citing Coy v. Iowa,
487 U.S. 1012, 1019-21, 101 L. Ed. 2d 857, 866-67, 108 S. Ct. 2798,
2802-03 (1988). Accordingly, the court concluded that an objective
person standard, rather than an objective child of the witness’ age,
should be used in determining whether a statement is testimonial and
subject to the confrontation clause guarantee. Snowden, 385 Md. at
90-91, 867 A.2d at 329.
     As noted, the Stechly plurality held that a child’s age may be
considered in deciding whether a reasonable declarant would
comprehend that his or her statement could be used in a subsequent
criminal prosecution. Stechly, 225 Ill. 2d at 295-96. Thus, under the
plurality’s holding, the confrontation clause will not apply to certain
out-of-court statements by children simply because they are incapable
of anticipating that their statements could be used in a subsequent
prosecution. The confrontation clause provides, however, that a
criminal defendant “shall enjoy the right *** to be confronted with
the witnesses against him.” U.S. Const., amend. VI. The plain
language of the confrontation clause applies to all witnesses. The
Stechly plurality’s framework for determining whether a statement is
testimonial cannot be squared with the confrontation clause because
it exempts an entire category of out-of-court statements from
confrontation clause protections. Stechly, 225 Ill. 2d at 326 (Kilbride,
J., concurring in part and dissenting in part).
     Although testimonial out-of-court statements by child witnesses
clearly may not be exempted from the protections of the confrontation
clause, I emphasize that there are a number of ways to reduce any
impact of testifying. See Stechly, 225 Ill. 2d at 326-27 (Kilbride, J.,
concurring in part and dissenting in part). In particular, it may be
appropriate to expand the use of closed-circuit television as a way to
reduce or eliminate the impact of testifying. See 725 ILCS 5/106B–5
(West 2006). There may also be other ways to eliminate any adverse
effects of testifying in compliance with the confrontation clause. The
interest in shielding a witness from testifying, however, may not
outweigh a defendant’s constitutional right to be confronted with the
witnesses at trial. Snowden, 385 Md. at 90, 867 A.2d at 329, citing
Coy, 487 U.S. at 1019-21, 101 L. Ed. 2d at 866-67, 108 S. Ct. at
2802-03.

                                 -30-
     In sum, I contend the applicable standard for determining whether
Von’s statement is testimonial is whether a reasonable adult in his
position would expect that the statement likely would be used in a
subsequent criminal prosecution. Stechly, 225 Ill. 2d at 327 (Kilbride,
J., concurring in part and dissenting in part). Under that standard,
Von’s statement to Weber was testimonial. His statement was made
in an interview at a child advocacy center. The circumstances of the
interview were sufficiently formal and structured to result in a solemn
statement. I agree with the majority that there is no indication that the
primary purpose of the interview was for treatment or to protect Von
from an ongoing emergency. The interview was focused on
recounting past events. Thus, Von was acting in a manner analogous
to a witness at trial by describing past events. Also, a reasonable adult
may have recognized that the child advocate was a “mandated
reporter” obligated to share information with law enforcement. See
55 ILCS 80/4(c) (West 2002). Given these objective circumstances,
a reasonable adult in Von’s position would anticipate that his
statement likely would be used in a criminal prosecution.
     Thus, although I disagree with the majority’s framework for
determining whether a statement is testimonial, I agree that Von’s
statement to Weber was testimonial and was admitted in violation of
the confrontation clause. I also agree with the majority’s decision on
forfeiture by wrongdoing and harmless error. Accordingly, I specially
concur in the majority’s judgment.




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