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




             THE STATE OF OHIO, APPELLEE, v. ARNOLD, APPELLANT.
         [Cite as State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742.]
Statements made to interviewers at child-advocacy centers that serve primarily a
        forensic or investigative purpose are testimonial and are inadmissible
        pursuant to the Confrontation Clause — Statements made to interviewers
        at child-advocacy centers that are made for medical diagnosis and
        treatment are nontestimonial and are admissible without offending the
        Confrontation Clause.
  (No. 2008-1693 — Submitted September 1, 2009 — Decided June 17, 2010.)
               APPEAL from the Court of Appeals for Franklin County,
                            No. 07AP-789, 2008-Ohio-3471.
                                  __________________
                               SYLLABUS OF THE COURT
1. Statements made to interviewers at child-advocacy centers that serve primarily
        a forensic or investigative purpose are testimonial and are inadmissible
        pursuant to the Confrontation Clause when the declarant is unavailable for
        cross-examination.
2. Statements made to interviewers at child-advocacy centers that are made for
        medical diagnosis and treatment are nontestimonial and are admissible
        without offending the Confrontation Clause.
                                  __________________
        O’CONNOR, J.
        {¶ 1} Appellant, Michael Arnold, appeals his conviction for raping his
four-year-old daughter, M.A. Arnold argues that statements that M.A. made to
social worker Kerri Marshall at the Center for Child and Family Advocacy at
                              SUPREME COURT OF OHIO




Nationwide Children’s Hospital (“CCFA”) were admitted contrary to his rights
under the Confrontation Clause of the Sixth Amendment to the United States
Constitution and Section 10, Article I of the Ohio Constitution. The court of
appeals affirmed Arnold’s conviction, holding that Marshall did not act as an
agent of the police when she questioned M.A. and that M.A.’s statements during
the interview were nontestimonial.
       {¶ 2} In interviewing M.A. at the CCFA, Marshall occupied dual
capacities: she was both a forensic interviewer collecting information for use by
the police and a medical interviewer eliciting information necessary for diagnosis
and treatment. We hold that statements made to interviewers at child-advocacy
centers that are made for medical diagnosis and treatment are nontestimonial and
are admissible without offending the Confrontation Clause. Thus, we affirm the
judgment of the court of appeals to the extent that M.A.’s statements to Marshall
for the purpose of medical treatment and diagnosis were properly admitted. We
further hold that statements made to interviewers at child-advocacy centers that
serve primarily a forensic or investigative purpose are testimonial and are
inadmissible pursuant to the Confrontation Clause. We agree with Arnold that the
trial court erred in admitting the forensic statements made by M.A. to Marshall
and reverse the court of appeals insofar as it held that these forensic statements
were admissible. However, because the court of appeals did not consider whether
the admission of M.A.’s forensic statement to Marshall was harmless, we remand
this case to the court of appeals to consider this issue.
                               Relevant Background
       {¶ 3} In December 2005, Arnold and Wendy Otto lived together in
Hilliard, Ohio, with their two young children. Otto testified that upon awakening
one night, she discovered that Arnold and their four-year-old daughter, M.A.,
were locked in a bedroom. Otto demanded that Arnold unlock the door, and when




                                           2
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he did, she observed that his boxer shorts were halfway off. Otto also observed
that M.A.’s underwear was around her ankles.        She suspected sexual abuse,
demanded that Arnold leave the premises, and called 9-1-1.            Arnold left
immediately. By the time paramedics arrived, many police officers were present.
M.A. told firefighter-paramedic Charles Fritz that she had been touched in her
private area.
         {¶ 4} Paramedics took Otto and M.A. to Nationwide Children’s Hospital,
where evidence for a rape kit was collected. While at the hospital, Otto was
advised to take M.A. to the CCFA the next day. The record is unclear whether
this advice came from the police, paramedics, hospital personnel, or some other
source. At some point that night, M.A. was released.
         {¶ 5} The next morning, Otto took M.A. to the CCFA. The CCFA is part
of Children’s Hospital and is located across the street from the main hospital. At
the CCFA, Marshall, a Nationwide Children’s Hospital employee, interviewed
M.A.     M.A.’s responses to Marshall’s questions indicated that she had been
sexually abused. This interview is at the heart of Arnold’s Confrontation Clause
claim.
         {¶ 6} The interview yielded a variety of relevant information.       For
example, M.A. stated that Arnold's “pee-pee” went inside her “pee-pee” and that
Arnold’s mouth touched her “pee-pee.” These statements were necessary for
M.A.’s medical evaluation and treatment. But M.A. also answered questions that
related to the ongoing investigation. For example, in response to Marshall’s
questions, M.A. stated that Arnold closed and locked the bedroom door before
raping her and that Arnold removed her underwear.
         {¶ 7} After the interview with Marshall, M.A. was physically examined by
a pediatric nurse practitioner, Gail Horner, a hospital employee who worked in the
CCFA. Horner found two abrasions to M.A.’s hymen, which she concluded had




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been caused by acute trauma, likely from penetration, within the previous 24 to 72
hours. Horner testified that the abrasions were “diagnostic” of sexual abuse.
          {¶ 8} Based on this and other information, including Otto’s testimony,
Arnold was indicted on two counts of rape in violation of R.C. 2907.02. The first
count charged rape by vaginal intercourse; the second charged rape by
cunnilingus.
          {¶ 9} At trial, the court determined that M.A. was unavailable to testify.
After watching the DVD recording of M.A.’s interview with Marshall, the court
determined that the statements had been made for the purpose of medical
diagnosis and were admissible hearsay under Evid.R. 803(4). The court also
determined that the statements were not barred by the Confrontation Clause.
Accordingly, the DVD was played for the jury.
          {¶ 10} The jury found Arnold guilty of rape by vaginal intercourse, but not
guilty of rape by cunnilingus. R.C. 2907.02. Arnold was sentenced to life in
prison.
          {¶ 11} On appeal, the Tenth District affirmed Arnold’s conviction. State
v. Arnold, Franklin App. No. 07AP-789, 2008-Ohio-3471. We accepted Arnold’s
discretionary appeal to determine whether, in a criminal prosecution, the out-of-
court statements made by a child to an interviewer employed by a child-advocacy
center violates the right to confront witnesses provided by the Sixth Amendment
to the United States Constitution and Section 10, Article I of the Ohio
Constitution. State v. Arnold, 120 Ohio St.3d 1452, 2008-Ohio-6813, 898 N.E.2d
967.
                                       Analysis
                                Confrontation Clause
          {¶ 12} “The Sixth Amendment's Confrontation Clause provides that, ‘[i]n
all criminal prosecutions, the accused shall enjoy the right * * * to be confronted




                                           4
                               January Term, 2010




with the witnesses against him.’ We have held that this bedrock procedural
guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380
U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).” Crawford v. Washington
(2004), 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177. “Section 10, Article I
[of the Ohio Constitution] provides no greater right of confrontation than the
Sixth Amendment.” State v. Self (1990), 56 Ohio St.3d 73, 79, 564 N.E.2d 446.
       {¶ 13} In Crawford, the Supreme Court of the United States considered
whether the introduction of a hearsay statement admissible under state law
violated a defendant’s Sixth Amendment right to confront the witnesses against
him. The court held that out-of-court statements violate the Sixth Amendment
when they are testimonial and the defendant has had no opportunity to cross-
examine the declarant. 541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d 177. See
also State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, ¶ 21-26.
The court did not comprehensively define “testimonial” but stated that the core
class of testimonial statements includes statements “ ‘that were made under
circumstances which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial.’ ” Crawford, 541 U.S. at
52, quoting Brief of Amicus Curiae National Association of Criminal Defense
Lawyers 3. Accord State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855
N.E.2d 834, paragraph one of the syllabus.       The court emphasized that the
objective-witness test was but one of many possible ways to determine whether a
statement is testimonial, and it expressly stated, “We leave for another day any
effort to spell out a comprehensive definition of ‘testimonial.’ ” Crawford, 541
U.S. at 68.
       {¶ 14} Two years later, in Davis v. Washington (2006), 547 U.S. 813,
821, 126 S.Ct. 2266, 165 L.Ed.2d 224, the court considered whether a caller’s
responses to a dispatcher’s interrogation during a 9-1-1 telephone conversation




                                        5
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were testimonial when the caller failed to appear to testify at trial. The court
stated (1) that the statements described the events as they were happening, as
opposed to explaining events that had happened in the past, (2) that any
reasonable listener would conclude that the statements were made in the face of an
ongoing emergency, (3) that the interrogation was objectively necessary to resolve
the ongoing emergency, and (4) that the interrogation was informal because it was
conducted over the phone and the answers were provided frantically while in an
unsafe environment. Id. at 827. The court concluded that the circumstances
surrounding the interrogation “objectively indicate [that] its primary purpose was
to enable police assistance to meet an ongoing emergency. [The caller] simply was
not acting as a witness; she was not testifying.” (Emphasis sic.) Id. at 828.
Accordingly, the court concluded that the caller’s hearsay statements were not
testimonial and, therefore, that they were not barred by the Sixth Amendment. Id.
at 829.
          {¶ 15} In Davis, the court also considered a second case in which a
domestic-violence complainant did not appear at trial. Id. at 819-820. The police
officer who interviewed the victim at the scene of the incident and who witnessed
her complete and sign an affidavit concerning the abuse testified at trial in order to
authenticate the affidavit.    Id. at 820.    The court determined (1) that the
interrogation sought to determine what had happened, not what was happening,
(2) that there was no ongoing emergency, (3) that the interrogation was not needed
to resolve an emergency, and (4) that the interrogation was “formal enough” that it
was conducted in a room separate from the complainant's husband. Id. at 830.
The court concluded that “[i]t is entirely clear from the circumstances that the
interrogation was part of an investigation into possibly criminal past conduct – as,
indeed, the testifying officer expressly acknowledged.” Id. at 829. Accordingly,




                                          6
                                   January Term, 2010




the court concluded that the hearsay evidence was testimonial and, therefore, that
it was barred by the Sixth Amendment. Id. at 834.
        {¶ 16} The court held that “[s]tatements are nontestimonial when made in
the course of police interrogation under circumstances objectively indicating that
the primary purpose of the interrogation is to enable police assistance to meet an
ongoing emergency. They are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and that the primary purpose of
the interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.” Id. at 822. Accord Siler, 116 Ohio St.3d 39, 2007-Ohio-
5637, 876 N.E.2d 534, paragraph one of the syllabus.
                                Stahl, Muttart, and Siler
        {¶ 17} In Stahl, this court considered whether hearsay statements by a rape
victim to a nurse practitioner during a medical examination at a hospital DOVE1
unit were admissible when the victim was not available to testify at trial. Stahl,
111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶ 1. The defendant
argued that the statements violated his Sixth Amendment right to confront
witnesses. Id. at ¶ 1, 9. This court distinguished Davis, stating: “They involve
statements made to law-enforcement officers, while the statement at issue here
covers one made to a medical professional at a medical facility for the primary
purpose of receiving proper medical treatment and not investigating past events
related to criminal prosecution.” (Emphasis sic.) Id. at ¶ 25. We concluded that
the primary purpose of the examination was to receive medical treatment, not to
investigate past events, applied the objective-witness test outlined in Crawford,
and held that the challenged statements were nontestimonial. Id. at ¶ 47, 48.



1. “DOVE” stands for “Developing Options for Violent Emergencies.” Stahl, 111 Ohio St.3d
186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶ 2. The unit specializes in health-care services for
victims of sexual assault and domestic disturbances. Id.




                                             7
                             SUPREME COURT OF OHIO




       {¶ 18} In State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d
944, a child victim of sexual abuse was interviewed by a social worker at a child-
advocacy center. Id., ¶ 14-15. As in the case before us now, the social worker
interviewed the child before she was examined by a doctor. Id., ¶ 15. During the
interview, the child disclosed to the social worker that her father had put his penis
in her mouth and had “ ‘put his pee-pee in her pee-pee.’ ” Id., ¶ 16. The child
also disclosed that similar conduct had happened “ ‘a whole bunch of times.’ ” Id.
We held that the child’s statements were nontestimonial because “[s]tatements
made to medical personnel for purposes of diagnosis or treatment are not
inadmissible under Crawford.” Id., ¶ 63. This is true because statements for
medical diagnosis and treatment “are not even remotely related to the evils that
the Confrontation Clause was designed to avoid.” Id.
       {¶ 19} In Siler, we considered whether statements made by a child to a
sheriff's deputy in the course of a police interrogation were testimonial. Siler, 116
Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, at ¶ 2. We concluded that “the
statements made to the deputy sheriff were testimonial because the circumstances
objectively indicate that no ongoing emergency existed and that the primary
purpose of the police interrogation was to establish past events potentially relevant
to a later criminal prosecution.” Id. We held that courts in Ohio should apply the
primary-purpose test set forth in Davis to determine “whether a child declarant's
statement made in the course of police interrogation is testimonial or
nontestimonial.” Id. at paragraph one of the syllabus, citing Davis, 547 U.S. at
821-822, 126 S.Ct. 2266, 165 L.Ed.2d 224.
                       Other State Supreme Court Decisions
       {¶ 20} Since Crawford, many state supreme courts have considered
whether statements made by children during interviews at child-advocacy centers,




                                         8
                                January Term, 2010




or their functional equivalent, are testimonial and whether statements by child
victims of sexual abuse for medical diagnosis and treatment are testimonial.
       {¶ 21} We recognize that a number of those decisions held that statements
by child-sexual-abuse victims at child-advocacy centers or their functional
equivalent are testimonial and, therefore, inadmissible pursuant to the
Confrontation Clause and Crawford when the defendant has no opportunity to
cross-examine the victim at trial. See, e.g., State v. Contreras (Fla.2008), 979
So.2d 896; State v. Hooper (2007), 145 Idaho 139, 176 P.3d 911; In re Rolandis
G. (2008), 232 Ill.2d 13, 327 Ill.Dec. 479, 902 N.E.2d 600; State v. Bentley (Iowa
2007), 739 N.W.2d 296; State v. Henderson (2007), 284 Kan. 267, 160 P.3d 776;
State v. Snowden (2005), 385 Md. 64, 867 A.2d 314; State v. Justus (Mo.2006),
205 S.W.3d 872; State v. Blue, 2006 ND 134, 717 N.W.2d 558. But in each of
these cases, the interviews were conducted solely for forensic purposes. The
situation we are presented with in this case is distinct from those considered in the
above-cited cases. Here we are asked to determine whether statements that contain
distinct forensic and medical diagnostic information and were made to a social
worker during one interview implicate the Confrontation Clause. For example, in
Contreras, the Florida Supreme Court held that a statement taken by the
coordinator of a “child protection team” (“CPT”) was testimonial. Id. at 905. The
interview was conducted and videotaped at a shelter for victims of domestic
violence, and a police officer was connected electronically to the CPT coordinator
in order to suggest questions. Id. There was no evidence that the child received
medical treatment based on the interview. The court held that “the primary, if not
the sole, purpose of the CPT interview was to investigate whether the crime of
child sexual abuse had occurred, and to establish facts potentially relevant to a
later criminal prosecution.” Id.




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       {¶ 22} Similarly, the Illinois Supreme Court excluded statements made in
a forensic interview when there was “absolutely no indication that * * * [the]
interview * * * was conducted, to a substantial degree, for treatment rather than
investigative purposes.” In re Rolandis G., 232 Ill.2d at 33, 327 Ill.Dec. 479, 902
N.E.2d 600. In that case, after stating that an older child forced him to perform
fellatio, a six-year-old was taken to a child-advocacy center and was interviewed
by a child advocate. Id. at 19. The interview was video recorded and observed by
a detective through a one-way mirror. Id. As with Contreras, there was no
indication that the child received a medical evaluation or treatment based on the
interview. The Illinois Supreme Court concluded that “the interview took place at
the behest of the police so that a more detailed account of the alleged sexual abuse
could be obtained by a trained interviewer and memorialized on videotape” and
held that the child’s statements were testimonial. Id. at 32.
       {¶ 23} In Hooper, the Idaho Supreme Court excluded statements in a
video-recorded forensic interview taken at a Sexual Trauma Abuse Response
Center (“STAR”). 145 Idaho at 141, 176 P.3d 911. In that case, a child was taken
to the STAR center after her mother discovered the child and her father locked in
the bathroom and suspected sexual abuse. Id. at 140. Upon arrival at the STAR
center, the child met with a doctor and the doctor conducted a sexual-abuse
examination. Id. at 141. After the medical examination, a forensic interviewer
conducted a video-recorded interview with the child, which a detective observed
via a closed-circuit system. Id. Because the interview occurred after the child met
with and was examined by the physician, the subsequent interview served a
forensic, not a medical or treatment-oriented, purpose.
       {¶ 24} In the same vein, the Kansas Supreme Court held that a child’s
statements during an interview conducted by a detective and a social worker, both
members of the Exploited and Missing Children Unit, were testimonial.




                                         10
                                January Term, 2010




Henderson, 284 Kan. at 294, 160 P.3d 776. In Henderson, a mother took her
three-year-old daughter to a medical clinic after noticing discharge from the
child’s vagina and after the child complained that her “potty place” hurt. Id. at
269. Test results revealed that the child had gonorrhea. Id. After learning about
the test results, the detective and social worker interviewed the child, who
disclosed that her mother’s boyfriend had “touched her ‘potty in a bad way.’ ” Id.
at 270. This interview was video and audio recorded. Id. Again, there is no
indication that the child received additional medical treatment based on the
interview.
       {¶ 25} These cases that stand for the proposition that the admission of
statements obtained during interviews at CACs or their functional equivalents
result in violations of the Confrontation Clause when the declarant is unavailable
at trial arise from scenarios in which the statements at issue were solely for
forensic purposes, rather than for ameliorative or therapeutic ones.
       {¶ 26} In the latter category, our sister courts hold that statements made by
child-sexual-abuse victims for the purpose of medical diagnosis and treatment are
not testimonial and, therefore, do not implicate the Confrontation Clause even if
they are used subsequently by the state in a prosecution. Seely v. State (2008),
373 Ark. 141, 282 S.W.3d 778 (holding that a child’s statements about abuse to a
social worker at a children’s hospital before the child was examined by a doctor
were nontestimonial); State v. Arroyo (2007), 284 Conn. 597, 935 A.2d 975
(holding that statements made to a social worker were nontestimonial because the
primary purpose of the interview was to provide medical assistance to the child);
State v. Krasky (Minn.2007), 736 N.W.2d 636 (holding that a child’s statements
to a nurse alleging sexual abuse were nontestimonial because the nurse’s primary
purpose was to assess and protect the child’s health and welfare); State v. Spencer,
339 Mont. 227, 2007 MT 245, 169 P.3d 384 (holding that statements to a




                                         11
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counselor regarding sexual abuse were nontestimonial); People v. Vigil
(Colo.2006), 127 P.3d 916 (holding that responses to questions by a doctor as part
of a sexual-assault examination were nontestimonial); Commonwealth v.
DeOliveira (2006), 447 Mass. 56, 849 N.E.2d 218 (holding that statements to a
physician were made for the purposes of medical evaluation and treatment and
were not testimonial); Hobgood v. State (Miss.2006), 926 So.2d 847 (holding that
a child’s description of sexual abuse to his doctor was not given for the purpose of
prosecuting the accused and was not testimonial); State v. Vaught (2004), 268
Neb. 316, 682 N.W.2d 284 (holding that a child’s statements to an emergency-
room physician identifying the perpetrator of sexual assault were nontestimonial).
       {¶ 27} With this background in mind, we turn to whether M.A.’s
statements to Marshall were testimonial.
       {¶ 28} Pursuant to Stahl, Muttart, and Siler, to determine whether M.A.’s
statements to Marshall were testimonial, we must identify the primary purpose of
the statements.   Statements made for the purpose of medical diagnosis and
treatment are nontestimonial. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875
N.E.2d 944, ¶ 63. However, statements made to agents of the police for the
primary purpose of forensic investigation are testimonial. Siler, 116 Ohio St.3d
39, 2007-Ohio-5637, 876 N.E.2d 534, at ¶ 2.
                     Child-Advocacy Centers and the CCFA
       {¶ 29} The objective of a child-advocacy center like the CCFA is neither
exclusively medical diagnosis and treatment nor solely forensic investigation. “
‘The purpose of a Children’s Advocacy Center is to provide a comprehensive,
culturally competent, multidisciplinary response to allegations of child abuse in a
dedicated, child friendly setting.’ ”      Nancy Chandler, Children’s Advocacy
Centers: Making a Difference One Child at a Time (2006), 28 Hamline J.Pub.L.




                                        12
                               January Term, 2010




& Policy 315, quoting National Children’s Alliance, Accreditation Guidelines for
Children’s Advocacy Centers (2004) 5.
       {¶ 30} “Prior to the development of the Children’s Advocacy Center
model, ‘traditional child abuse investigations often subject(ed) the child to
multiple interviews.’ ” Id. at 332, quoting Lisa Snell, Child Advocacy Centers:
One Stop on the Road to Performance-Based Child Protection (June 2003) 1. A
child-advocacy center’s “ ‘number one goal’ ” is to reduce trauma to a child-abuse
victim by coordinating the interview to include professionals from multiple
agencies, which, in turn, can reduce the number of interviews needed and improve
the quality of the investigation, the diagnosis, and the recommendation for
treatment. Id. at 323. Additionally, “ ‘[t]hey help children avoid the trauma of
repeating their story at various stops along the legal and judicial path.’ ” Id.
These interdisciplinary teams often include law-enforcement professionals,
prosecutors, medical and mental-health personnel, and child advocates. Id. at 324.
       {¶ 31} At the CCFA, Marshall, a social worker employed by Nationwide
Children’s Hospital, interviews children who are suspected victims of physical or
sexual abuse. The purpose of the interview is to gather as much information as
possible. The interview is both recorded on a DVD and transmitted to another
room via closed-circuit television. Typically, a nurse practitioner or doctor, a
children’s services caseworker, and a law-enforcement representative watch the
interview from a separate room. Marshall does not inform the child that the team
members are watching the interview, but does tell him or her that he or she will be
examined by a doctor or nurse after the interview.
       {¶ 32} After Marshall interviews the child, she meets with the doctor or
nurse practitioner who will perform the medical examination to review the child’s
statements. The nurse or doctor conducts the appropriate medical examination
based on the child’s statements during the interview. The nurse or doctor relies




                                        13
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on information obtained during Marshall’s interview to determine what
examination and tests are needed. For example, information regarding the identity
of the perpetrator, the age of the perpetrator, the type of abuse alleged, and the
time frame of the abuse allows the doctor or nurse to determine whether to test the
child for sexually transmitted infections.
                         The Interviewer’s Dual Capacity
       {¶ 33} Child-advocacy centers are unique.          Multidisciplinary teams
cooperate so that the child is interviewed only once and will not have to retell the
story multiple times. Most members of the team retain their autonomy. Neither
police officers nor medical personnel become agents of the other. However, to
ensure that the child victim goes through only one interview, the interviewer must
elicit as much information from the child as possible in a single interview and
must gather the information needed by each team member. Thus, the interview
serves dual purposes:     (1) to gather forensic information to investigate and
potentially prosecute a defendant for the offense and (2) to elicit information
necessary for medical diagnosis and treatment of the victim. The interviewer acts
as an agent of each member of the multidisciplinary team.
                                             1
       {¶ 34} Certainly, some of the statements that M.A. made to Marshall
primarily served a forensic or investigative purpose. Those statements include
M.A.’s assertion that Arnold shut and locked the bedroom door before raping her;
her descriptions of where her mother and brother were while she was in the
bedroom with Arnold, of Arnold’s boxer shorts, of him removing them, and of
what Arnold’s “pee-pee” looked like; and her statement that Arnold removed her
underwear. These statements likely were not necessary for medical diagnosis or
treatment. Rather, they related primarily to the state’s investigation. Marshall




                                         14
                               January Term, 2010




effectively acted as an agent of the police for the purpose of obtaining these
statements.
       {¶ 35} Because Marshall acted as an agent of the police in obtaining these
statements, pursuant to Davis and Siler, we must employ the primary-purpose test
to determine whether the primary purpose of the interrogation was “ ‘to enable
police assistance to meet an ongoing emergency.’ ” Siler, 116 Ohio St.3d 39,
2007-Ohio-5637, 876 N.E.2d 534, at paragraph one of the syllabus, quoting
Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224. We hold that it was
not. First, the statements involved a description of past events. The alleged abuse
occurred the previous evening, and the questioning specifically attempted to
obtain a description of the abuse.    Second, a reasonable observer would not
perceive an ongoing emergency at the time of questioning. The patient had been
discharged from the hospital the previous evening. At oral argument, counsel
conceded that no medical emergency existed at the time of Marshall’s interview.
Third, the questioning was not objectively necessary to resolve an emergency
because there was no ongoing emergency.         Finally, the interview was rather
formal, more akin to the videotaped, planned interview of Crawford than to the
frantic 9-1-1 call or the sequestered but spur-of-the-moment interview recounted
in Davis.
       {¶ 36} The primary purpose of that portion of the interview was not to
meet an ongoing emergency but, rather, to further the state’s forensic
investigation.   Thus, these statements were testimonial in nature and their
admission without a prior opportunity for cross-examination is prohibited by the
Confrontation Clause. Crawford, 541 U.S. at 68, 124 S.Ct. 1354, 158 L.Ed.2d
177.
                                        2




                                        15
                             SUPREME COURT OF OHIO




       {¶ 37} Although the statements obtained during Marshall’s interview of
M.A. that related primarily to the state’s forensic investigation are testimonial and
thus inadmissible pursuant to Crawford, other statements provided information
that was necessary to diagnose and medically treat M.A. The history obtained
during the interview is important for the doctor or nurse practitioner to make an
accurate diagnosis and to determine what evaluation and treatment are necessary.
For example, the nurse practitioner conducts a “head to toe” examination of all
children, but only examines the genital area of patients who disclose sexual abuse.
That portion of the exam is to identify any trauma or injury sustained during the
alleged abuse.
       {¶ 38} M.A.’s statements that described the acts that Arnold performed,
including that Arnold touched her “pee-pee,” that Arnold’s “pee-pee” went inside
her “pee-pee,” that Arnold’s “pee-pee” touched her “butt,” that Arnold’s hand
touched her “pee-pee,” and that Arnold’s mouth touched her “pee-pee,” were thus
necessary for the proper medical diagnosis and treatment of M.A.
       {¶ 39} In his dissent, Justice Pfeifer states that he is troubled by our
conclusion that these statements were medically necessary because M.A. had been
examined at the hospital on the night of the rape. However, although M.A. was
taken to the hospital on the night of the rape, the record establishes only that a
rape-kit examination was performed, not that she was examined for medical
diagnosis or treated.    M.A. was referred to the CCFA for further medical
examination and treatment.        Justice Pfeifer also contends that the nurse
practitioner who examined M.A. after the interview would have asked all
medically relevant questions during the examination. This is not true. The history
obtained during Marshall’s interview was necessary for the nurse practitioner to
make an accurate diagnosis and to determine what treatment was necessary.
Horner, the nurse practitioner who examined M.A., testified that the “forensic




                                         16
                                January Term, 2010




interview guides my exam in that it lets me know whether or not I need to test the
child for sexually transmitted infection. For instance, if a child says that a penis
touched their vagina, it means to me that I need to test to make sure that child
didn’t get a sexually transmitted infection.”
       {¶ 40} In eliciting these medically necessary statements, Marshall acted as
an agent of the nurse practitioner who examined M.A., not of the investigating
police officers.   Because Marshall did not act as an agent of the police in
obtaining these statements, they are not inadmissible pursuant to Davis. Stahl,
111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, at ¶ 25, 36.
       {¶ 41} Statements made for medical diagnosis and treatment are
nontestimonial. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶
63. There is no basis in the law for concluding that Marshall’s dual capacity
renders statements made by M.A. for the purpose of medical diagnosis and
treatment inadmissible pursuant to the Confrontation Clause. Indeed, in Davis,
the United States Supreme Court acknowledged that the same interview or
interrogation might produce both testimonial and nontestimonial statements.
Davis, 547 U.S. at 828-829, 126 S.Ct. 2266, 165 L.Ed.2d 224. As the court stated
in Davis, “This presents no great problem.” Id. at 829. “[T]rial courts will
recognize the point at which, for Sixth Amendment purposes, statements in
response to interrogations become testimonial. Through in limine procedure, they
should redact or exclude the portions of any statement that have become
testimonial, as they do, for example, with unduly prejudicial portions of otherwise
admissible evidence.” Id.
       {¶ 42} Both dissents criticize our reliance on Davis in support of our
conclusion that although M.A.’s forensic statements to Marshall were testimonial,
her statements for the purpose of medical diagnosis and treatment were properly
admitted. First, Justice Pfeifer argues that pursuant to Davis, when evidence




                                         17
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includes testimonial and nontestimonial statements, the testimonial statements
must be redacted or excluded to avoid violating the defendant’s right to confront
witnesses against him. We agree that M.A.’s testimonial statements should have
been excluded, and we remand the case to the court of appeals to determine
whether the admission of M.A.’s testimonial statements was harmless error.
Next, both dissents argue that our reliance on Davis is erroneous because we
examine the statements on a question-by-question basis and the testimonial and
nontestimonial statements were interspersed, rather than being obtained in
separate and distinct portions of the interview. Justice Pfeifer argues that this will
make it difficult to distinguish the statements that should be redacted from those
that may be properly admitted. However, our guiding consideration is the purpose
for which the statements are made, not the order in which they are obtained.
Finally, both dissents note that unlike in Davis, there was no ongoing emergency
in this case and, therefore, there was no occasion for the questioning in this case
to evolve from nontestimonial to testimonial. Our decision is not based on the
evolution of M.A.’s statements, but on the fact that the statements were made for
different purposes. The fact that Davis involved an evolution from nontestimonial
to testimonial statements does not preclude its application in instances in which an
interview simultaneously serves dual purposes.
       {¶ 43} Further, the fact that police officers watched the interview and that
it was recorded does not change the fact that the statements were necessary for
M.A.’s medical diagnosis and treatment. Similarly, the fact that information
gathered for medical purposes is subsequently used by the state does not change
the fact that the statements were made for medical diagnosis and treatment.
Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d 944, ¶ 62. M.A.’s
statements that were necessary for medical diagnosis and treatment were




                                         18
                               January Term, 2010




nontestimonial and were properly admitted without violating Arnold’s
Confrontation Clause rights.
                                   Conclusion
       {¶ 44} When Marshall interviewed M.A. at the CCFA, she occupied dual
capacities: she was both a forensic interviewer collecting information for use by
the police and a medical interviewer eliciting information necessary for diagnosis
and treatment. We hold that statements made to interviewers at child-advocacy
centers that are made for medical diagnosis and treatment are nontestimonial and
are admissible without offending the Confrontation Clause. Thus, we affirm the
judgment of the court of appeals to the extent that M.A.’s statements to Marshall
for the purpose of medical treatment and diagnosis were properly admitted. We
further hold that statements made to interviewers at child-advocacy centers that
serve primarily a forensic or investigative purpose are testimonial and are
inadmissible pursuant to the Confrontation Clause when the declarant is
unavailable for cross-examination at trial. We agree with Arnold that the trial
court erred in admitting the forensic statements made by M.A. to Marshall and
reverse the court of appeal’s judgment insofar as it held that these forensic
statements were admissible.     However, because the court of appeals did not
consider whether the admission of M.A.’s forensic statement to Marshall was
harmless, see State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d
996, we remand the case to the court of appeals to consider this issue.
                                                         Judgment affirmed in part
                                                               and reversed in part,
                                                              and cause remanded.
       LUNDBERG STRATTON, LANZINGER, and CUPP, JJ., concur.
       PFEIFER and O’DONNELL, JJ., dissent.
       BROWN, C.J., not participating.




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                                SUPREME COURT OF OHIO




                                 __________________
         PFEIFER, J., dissenting.
         {¶ 45} The majority opinion misconstrues the applicable case law in
reaching its conclusion. I conclude that a forensic interview cannot be both
testimonial and nontestimonial without violating a defendant’s Sixth Amendment
right to confront the witnesses against him.
         {¶ 46} The majority opinion ably explains the law of the Sixth
Amendment’s Confrontation Clause as elucidated by various federal and Ohio
cases.    I will not redescribe these cases.     The majority opinion also fairly
characterizes the case law from other states that it summarizes in the section titled
“Other State Supreme Court Decisions.” I dissent, not based on the majority
opinion’s understanding of the law, but because of the way the majority opinion
applies the law to this case.
         {¶ 47} The majority opinion acknowledges that many of the questions
asked by the forensic interviewer, Kerri Marshall, were asked “to gather forensic
information” and are, therefore, testimonial. In Davis v. Washington (2006), 547
U.S. 813, 828-829, 126 S.Ct. 2266, 165 L.Ed.2d 224, the court held that
statements of a witness who is unavailable for cross-examination should be
redacted or excluded to avoid violating the defendant’s right to confront witnesses
against him.     The testimonial statements in this case were not redacted or
excluded. Furthermore, the testimonial statements in this case are different from
those discussed in Davis. In Davis, the testimonial statements were made after a
series of nontestimonial statements had concluded. Id. The interrogator in that
case had elicited statements to assist the police in meeting an ongoing emergency:
those statements were nontestimonial, and their admission as evidence was
permissible. Id. After eliciting the initial statements, the interrogator asked a
series of questions attempting to elicit information about the alleged crime. Id. at




                                         20
                                 January Term, 2010




828.   The court found “no great problem” with this approach because the
nontestimonial statements were separate and distinct from the testimonial
statements. Id. at 829. The court stated that questioning could evolve from
addressing an emergency to eliciting forensic information. Id. at 828. According
to the Supreme Court, testimonial statements may not be introduced as evidence
and if they are part of a transcript or other document, they must redacted. Id. at
829.
       {¶ 48} The majority opinion makes creative use of the Davis opinion.
First, it concludes that the concept of nontestimonial statements evolving into
testimonial statements applies when an interrogator has a dual purpose. Davis
does not support this conclusion. The interrogator in Davis did not have dual
purposes: she had two separate purposes. She completed the questions regarding
the ongoing emergency and then moved on to elicit information that could be used
as evidence. Marshall’s questions, which elicited, in the opinion of the majority,
both testimonial and nontestimonial statements, were interspersed, rendering it
difficult to distinguish those that should be redacted from those that need not be
redacted. Second, in this case there was no ongoing emergency. The emergency
occurred the night before, so there was no occasion for the questioning to evolve
from eliciting nontestimonial statements to eliciting testimonial ones. Third, the
testimonial statements in this case, which the majority opinion concedes exist,
were not redacted. The majority opinion relies on Davis, but only to the extent
that Davis suits its purposes.
       {¶ 49} Although remanding the cause to enable the court of appeals to
determine whether the error is harmless is better than finding it harmless, we
should do neither. It is clear from the record that the error in this case was not
harmless. In State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d
996, ¶ 78, we stated that the determination of whether a constitutional error is




                                         21
                             SUPREME COURT OF OHIO




harmless “is not simply an inquiry into the sufficiency of the remaining evidence.
Instead, the question is whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.” It is patently obvious
that the testimonial statements in this case “might have contributed to the
conviction.”
       {¶ 50} Another troubling aspect of the majority opinion is its implicit
conclusion that Marshall’s questions were medically necessary.          Although I
concede that they may have been helpful, they were not necessary. First, a doctor
had examined M.A. the previous evening. That doctor would have done and
asked everything necessary to treat M.A. at that time. See State v. Hooper (2007),
145 Idaho 139, 141, 176 P.3d 911, about which the majority opinion states,
“Because the interview occurred after the child met with and was examined by the
physician, the subsequent interview served a forensic, not a medical or treatment-
oriented, purpose.” Majority opinion at ¶ 23. Second, as discussed below, a nurse
practitioner examined M.A. after Marshall’s questioning. She would have asked
all medically relevant questions during her examination.
       {¶ 51} The testimonial statements in this case were neither redacted nor
harmless.      Nevertheless, the majority opinion concludes that the testimonial
statements do not violate the defendant’s right to confront witnesses. I will now
explain why I believe that all of the statements elicited by Marshall were
testimonial and, therefore, improperly admitted into evidence.
                          Marshall’s Interview with M.A.
       {¶ 52} Kerri Marshall is a licensed social worker employed by CCFA as a
medical forensic interviewer. Marshall described her job duties as interviewing
children who are alleged to be victims of sexual or physical abuse. She testified
that law-enforcement personnel customarily observe the interviews that she
conducts and that the children are not aware that they are being observed.




                                        22
                                January Term, 2010




Marshall’s interview with M.A. was contemporaneously broadcast to another
room over closed-circuit television, where it was viewed by several people,
including a police detective. It was also recorded on a DVD.
       {¶ 53} During her interview with M.A., Marshall asked many questions
about the events of the previous evening. Some of the questions were not relevant
to an ongoing medical emergency or to medical treatment. For example, Marshall
asked M.A., “How did your underwear get off?” “Did daddy’s pee-pee touch your
pee-pee?” and “Were you laying down or sitting up when daddy played pee-pees
with you?” Marshall subsequently prepared a report of the interview, entitled
“Medical Forensic Interview Summary.”         In this report, Marshall noted that
Arnold “fled the home by stealing [Otto’s] purse and her car” after Otto
confronted him.     Marshall recommended that M.A. be “protected from any
contact with alleged perpetrator as this investigation continues.”
            Statement made in the course of a police interrogation
       {¶ 54} The issue in this case, as it was in Stahl and Siler, is to determine
whether the hearsay statements that were offered by the prosecution and that the
defendant argued violated his right under the Sixth Amendment to confront a
witness are testimonial. A threshold question, however, is whether the statements
were made in the course of a police interrogation. See Davis, 547 U.S. at 822,
126 S.Ct. 2266, 165 L.Ed.2d 224; Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876
N.E.2d 534, at ¶ 30-31. What constitutes “police interrogation” for purposes of
Confrontation Clause analysis has not been addressed by the United States
Supreme Court. See Davis at 823, fn. 2.
       {¶ 55} It is, of course, plainly obvious that a police officer did not conduct
the interrogation in this case; social worker Kerri Marshall conducted the
interrogation. The question becomes: was Marshall an agent of law enforcement




                                         23
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when she conducted the interrogation? Id. For the reasons that follow, I conclude
that she was.
       {¶ 56} Although the state argues that Crawford and Davis apply only
when the interviewer is a law-enforcement officer, the cases do not support such a
narrow interpretation. I am persuaded that Crawford and Davis define a broader
constitutional protection from out-of-court statements that are obtained primarily
to assist in a criminal prosecution, regardless of whether the interrogator is a
police officer or an agent of the police. Davis, 547 U.S. at 822-823, 126 S.Ct.
2266, 165 L.Ed.2d 224; Crawford, 541 U.S. at 51-53, 124 S.Ct. 1354, 158
L.Ed.2d 177. See Crawford at 50 (“the principal evil at which the Confrontation
Clause was directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence against the accused”).
       {¶ 57} In Siler, we stated that “courts have consistently applied the
primary-purpose test to statements that a child declarant made to police or those
determined to be police agents.” Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876
N.E.2d 534, at ¶ 29. In one of those cases, the Supreme Court of North Dakota
stated, “In cases since Crawford, other states with the functional equivalent of the
Children’s Advocacy Center (‘CAC’) involved in this case have held that similar
statements made by a child with police involvement inevitably are testimonial.”
State v. Blue (2006), 199 N.D. 50, 717 N.W.2d 558, ¶ 15. A Florida court of
appeals has considered four factors to determine whether the interrogation at issue
was “the functional equivalent of a police interrogation. These four factors are (1)
the effect of the Florida statutes pertinent to the establishment and functioning of
the CPT [the Florida equivalent of a CAC], (2) the nature and extent of law
enforcement involvement in the examination of the child by [the nurse
practitioner] at [the hospital], (3) the purpose of the examination performed by
[the nurse practitioner] in her capacity as a member of the CPT, and (4) the




                                         24
                               January Term, 2010




absence of any ongoing emergency at the time [the nurse practitioner] conducted
her examination of the child.” Hernandez v. State (Fla.App.2007), 946 So.2d
1270, 1280. Although I would not adopt this four-part test, the factors are helpful
in determining whether Marshall was acting as an agent of the police when she
interrogated M.A.
       {¶ 58} First, the statutory scheme that authorized the creation of CACs
contains provisions that establish a link between the CACs and law enforcement.
R.C. 2151.426 and 2151.427. See Ohio Adm.Code 5101:2-33-26. Second, a
police detective watched the interrogation as it was happening and the
interrogation was recorded and saved to a DVD. Third, focusing primarily on
issues that were not medical, the interview was memorialized as a “Medical
Forensic Interview Summary,” suggesting that the purpose was forensic, not
medical.     Fourth, there was no ongoing emergency while the interview was
conducted.
       {¶ 59} Furthermore, Marshall is not a medical professional; her job title is
“medical forensic interviewer.” “Forensic” means “[u]sed in or suitable to courts
of law or public debate.”     Black's Law Dictionary (9th Ed.2009) 721.         The
Michigan Department of Human Services has stated that “[t]he goal of a forensic
interview is to obtain a statement from a child * * * that will support accurate and
fair decision-making in the criminal justice and child welfare systems,” and that
“the interview is not part of a treatment process.” State of Michigan, Forensic
Interviewing Protocol, at http://www.michigan.gov/documents/dhs/DHS-PUB-
0779_211637_7.pdf (accessed May 25, 2010).
       {¶ 60} I conclude that Marshall was an agent of the police when she
conducted her forensic interview of M.A. See Blue, 2006 ND 134, 717 N.W.2d
558, ¶ 14 – 16, and the cases cited therein; State v. Mack (2004), 337 Or. 586,




                                        25
                              SUPREME COURT OF OHIO




593, 101 P.3d 349 (Department of Human Services caseworker was a proxy for
the police).
                    Application of the primary-purpose test
        {¶ 61} The next step is to determine whether the primary purpose of the
interrogation was “ ‘to enable police assistance to meet an ongoing emergency.’ ”
Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, at paragraph one of
the syllabus, quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224.
First, the interview involved a description of past events. The alleged abuse had
occurred the previous evening, and the questioning specifically attempted to
obtain a description of the abuse.    Second, a reasonable observer would not
perceive an ongoing emergency at the time of questioning. The patient had been
discharged from the hospital the previous evening. At oral argument, counsel
conceded that no medical emergency existed at the time of Marshall’s interview.
Third, the questioning was not necessary to resolve an emergency because there
was no ongoing emergency. Finally, the interview was rather formal, more akin
to the videotaped, planned interview of Crawford than to the frantic 9-1-1 call or
the sequestered but spur-of-the-moment interview recounted in Davis.         Each
factor independently suggests that there was no ongoing emergency; collectively,
the conclusion is manifest.
        {¶ 62} Because the primary purpose of the Marshall interview was not to
meet an ongoing emergency, the next step is to evaluate the entirety of the factual
circumstances surrounding the interview to establish whether its primary purpose
was “to establish or prove past events potentially relevant to later criminal
prosecution.” Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224.
        {¶ 63} A CAC can be established only by a children’s services agency, law
enforcement, or a prosecutor, and the CAC is responsible for assembling a
multidisciplinary team. R.C. 2151.426 and 2151.427(A). The multidisciplinary




                                        26
                               January Term, 2010




team must include law enforcement and prosecuting attorneys as members. Id.
The statutory connection between CACs and law enforcement suggests that CACs
are not solely medical-treatment providers and that a CAC interviewer can be an
agent of the police.
       {¶ 64} The circumstances of the interview indicate that its primary
purpose was “to establish or prove past events potentially relevant to later
criminal prosecution.” Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224.
See Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534, paragraph one of
the syllabus.   Police observed the interview, which the state concedes is a
customary practice. A DVD recording of the interview was preserved, a strong
indication that the purpose of the interview was to obtain evidence for use by the
prosecution. I am unaware of doctors videotaping patient interviews to assist
them in medical treatments or of doctors allowing police officers to routinely
observe them when they examine their patients.
       {¶ 65} Furthermore, many of the questions asked were investigatory in
nature and similar to the questions asked in a direct examination in a judicial
proceeding. See Davis, 547 U.S. at 830, 126 S.Ct. 2266, 165 L.Ed.2d 224. For
example, questions about how the underwear was removed, who did so, and the
specific positions – standing up or lying down – in which the alleged abuse
occurred represent an attempt to gain specific details of past events.      If the
questions have a medical purpose, it is secondary to their investigatory purpose. I
might view Marshall’s questions differently if she were a nurse, as in Stahl, but
she is not. Furthermore, the nurse practitioner would have made all inquiries
relevant to medical treatment during the physical examination after the social
worker questioned M.A.       That the nurse practitioner stated that Marshall’s
interview “guides my exam” is no doubt true to some degree.             But nurse
practitioners are highly educated professionals; they do not need an intermediary.




                                        27
                             SUPREME COURT OF OHIO




In my opinion, the intermediary was interjected in order to elicit forensic
evidence, not to assist in the medical examination.
       {¶ 66} It is objectively apparent from the record that Marshall asked
questions to assist in the police investigation. The circumstances of this case are
quite different from State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875
N.E.2d 944, ¶ 62, in which hearsay statements obtained by medical personnel in
the course of treatment survived a Sixth Amendment challenge. In Muttart, police
did not observe the interview and the interview was not videotaped. The state
argues that the questions that Marshall asked M.A. helped to assess the need for
future counseling but fails to show whether any counseling occurred. Even if it
had occurred, a recommendation for counseling alone would be insufficient to
establish that the interview was primarily for medical purposes.
       {¶ 67} The critical evidence in this case is Marshall’s report, something
the majority opinion does not address.        It uses the words “perpetrator” and
“allegations” and includes a witness list, an item typically not found in a medical
report. The report states that the patient should have no contact with the “alleged
perpetrator as this investigation continues.” The report indicates that Marshall
believed that she was assisting an ongoing investigation targeting a particular
criminal suspect. When interviewers believe themselves to be participants in an
investigation that has targeted a particular criminal suspect, they conduct precisely
the type of ex parte examinations that the Confrontation Clause protects against.
Crawford, 541 U.S. at 50-53, 124 S.Ct. 1354, 158 L.Ed.2d 177.
                      Conclusions reached by sister states
       {¶ 68} Since Crawford was decided, many state supreme courts have
addressed the issue before us. In at least eight cases, state supreme courts have
concluded that out-of-court statements by child sexual-assault victims to various
non-law-enforcement personnel were nontestimonial. Seely v. State (2008), 373




                                         28
                              January Term, 2010




Ark. 141, 282 S.W.3d 778; People v. Vigil (Colo.2006), 127 P.3d 916; State v.
Arroyo (2007), 284 Conn. 597, 935 A.2d 975; Commonwealth v. DeOliveira
(2006), 447 Mass. 56, 849 N.E.2d 218; State v. Krasky (Minn.2007), 736 N.W.2d
636; Hobgood v. State (Miss.2006), 926 So.2d 847; State v. Spencer (2007), 339
Mont. 227, 2007 MT 245, 169 P.3d 384; State v. Vaught (2004), 268 Neb. 316,
682 N.W.2d 284. Each of these cases turned on factual determinations that are
not present in this case. See, e.g., Seely, 373 Ark. at 156, 282 S.W.3d 778 (the
primary purpose of an interview conducted by a social worker “was medical
treatment”); Vigil, 127 P.3d at 927 (statements to doctor were for purposes of
medical diagnosis); Hobgood, 926 So.2d at 852 (statements were made to people
who “were not working in connection with the police” or were made for the
purpose of seeking medical treatment).
       {¶ 69} At least nine state supreme courts have concluded that out-of-court
statements by child sexual assault victims to non-law-enforcement personnel are
testimonial. State v. Contreras (Fla.2008), 979 So.2d 896; Hooper, 145 Idaho
139, 176 P.3d 911; In re Rolandis G., 232 Ill.2d 13, 327 Ill.Dec. 479, 902 N.E.2d
600; State v. Bentley (Iowa 2007), 739 N.W.2d 296; State v. Henderson (2007),
284 Kan. 267, 160 P.3d 776; State v. Snowden (2005), 385 Md. 64, 867 A.2d 314;
State v. Justus (Mo.2006), 205 S.W. 3d 872; Blue, 2006 ND 134, 717 N.W.2d
558; Mack, 337 Or. 586, 101 P.3d 349.         Each of these cases involves an
interviewer who performed in circumstances substantially similar to the facts
before us. See, e.g., Blue, 2006 ND 134, 717 N.W.2d 558, ¶ 2-3 (a forensic
interviewer conducted the interview while a police officer watched; the officer
was given a videotaped recording of the interview); Contreras, 979 So.2d at 905
(interview by child-protection-team coordinator was watched by police officer and
recorded); Bentley, 739 N.W.2d at 297, 300 (interview by counselor at child-
protection center was watched by police officers, who took videotaped copy of




                                         29
                               SUPREME COURT OF OHIO




interview with them). My conclusion in this case is bolstered by the fact that the
majority of our sister courts that have considered substantially the same issue have
reached the same conclusion that I reach.
                                    Conclusion
       {¶ 70} I conclude that the primary purpose of Marshall’s forensic
interview was to establish or prove past events potentially relevant to later
criminal prosecution. I conclude, therefore, that the statements were testimonial
and that their admission violated the Confrontation Clause of the Sixth
Amendment to the United States Constitution. I would reverse the decision of the
court of appeals. I dissent.
                               _____________________
       O’DONNELL, J., dissenting.
       {¶ 71} The issue in this case concerns whether the trial court violated
Michael Arnold’s constitutional right to confront the witnesses against him when
it admitted hearsay statements that Arnold’s four-year-old daughter, M.A., made
to Kerri Marshall, a medical forensic interviewer at the Center for Child and
Family Advocacy at Nationwide Children’s Hospital, who interviewed M.A. as
part of the investigation into allegations of sexual abuse. I agree with the majority
that Marshall acted as an agent of law enforcement when she interviewed M.A.
because Marshall had a purpose to collect information for use by the police.
However, because the majority also decides that Marshall simultaneously acted as
an agent of medical professionals, rendering M.A.’s statements relevant to
diagnosis and treatment nontestimonial, notwithstanding Marshall’s primary
purpose to collect that same information for the police, I respectfully dissent.
                          Facts and Procedural History
       {¶ 72} Michael Arnold and Wendy Otto married in their teens and had two
children: a girl, M.A., who was four years old at the time relevant to this case, and




                                         30
                                January Term, 2010




a boy, M.S.A., who was five. The couple had a volatile relationship, which
included physical violence, accusations of infidelity, and an unsubstantiated claim
that Arnold had abused M.S.A. According to Arnold’s mother, Wendy had made
up stories involving the children to get back at Arnold for cheating on her. After
Wendy filed for divorce in July 2005, Arnold moved to Ohio. However, the two
reconciled, and in November 2005, she followed him to Ohio.
       {¶ 73} On the evening of December 7, 2005, Wendy fell asleep in the
living room with M.S.A, but noises upstairs woke her, and she went to the
bedroom to investigate. Arnold, however, had locked the bedroom door, and she
yelled for him to open it. Once he did, she saw his “boxers halfway off on his
side” and M.A. lying on the couple’s air mattress. She pulled a blanket off of
M.A. and discovered her daughter’s underwear around her ankles. At that point,
she told Arnold to leave. He told Wendy that nothing happened, but he left the
house when she called 9-1-1. Paramedics and officers responded, and M.A. told
firefighter-paramedic Charles Fritz that someone touched her private area. Fritz
took Wendy and both children to the emergency room at Children’s Hospital,
where authorities performed a rape-kit examination on M.A.
       {¶ 74} Wendy received instructions to take M.A. to the Center for Child
and Family Advocacy at Children’s Hospital (the “CCFA”) the next morning.
The CCFA is a child-advocacy center, which is defined by R.C. 2151.425(A) to
mean “a center operated by participating entities * * * to perform functions and
activities and provide services * * * regarding reports * * * of alleged sexual
abuse of a child or another type of abuse of a child.”          Pursuant to R.C.
2151.426(A), the participating entities operating a child-advocacy center may
include children’s services, law enforcement, and the prosecuting attorney. The
Columbus Police Department, the prosecutor, and children’s services all have
offices in the CCFA building.




                                        31
                            SUPREME COURT OF OHIO




        {¶ 75} Kerri Marshall, a medical forensic interviewer working for the
CCFA, interviews children when there are allegations of sexual or physical abuse.
These interviews are recorded on DVD and observed on closed-circuit television
by the nurse or doctor who will perform a physical examination, law enforcement,
a children’s services caseworker, and sometimes a prosecutor. According to
Marshall, her interview is for purposes of medical diagnosis and treatment.
However, she also explained the purpose of having doctors, nurses, detectives,
children’s services caseworkers, and prosecutors watch the interview: “Before we
were all in the same building. You know, we would do the same process. I would
interview the children. They would have their medical exam done. We would
forward our reports on to medical services, law enforcement. They will have to
review [—] law enforcement may have to interview the child. So in this way we
set it up so the child will have to go through one interview. The child won’t have
to relive the story again. So that’s really the purpose of having the other — the
other people there watching the interview.” Thus, the interview had a goal to
obtain enough information so that law enforcement would not have to reinterview
the child.
        {¶ 76} In this case, Gail Horner, a nurse practitioner, Monte Nommay, a
police detective, Joelle Nielson, a victim advocate, and Vanise Dunn, a children’s
services caseworker, observed the interview. Marshall interviewed M.A. in a
separate room with DVD cameras. She explained to M.A. that she would ask her
some questions and that a nurse would give her a check-up, and she attempted to
build a rapport with introductory questions; however, the interview quickly
focused on the prior night’s events:
        {¶ 77} “And who takes care of you?
        {¶ 78} “A. My mom and my dad.
        {¶ 79} “Q. Your mom and your dad take care –




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       {¶ 80} “A. But my dad’s not at my home.
       {¶ 81} “Q. Your dad’s not at your home? How come?
       {¶ 82} “A. Because he got in jail.
       {¶ 83} “Q. Him got in jail. Okay. How come him got in jail? What did
daddy do?
       {¶ 84} “A. Nothing. He just got in jail.”
       {¶ 85} Marshall continued asking M.A. why Arnold had gone to jail, and
M.A. explained that he had done something to Wendy and that they had been
fighting. M.A. also stated that Arnold had locked the bedroom door and that
neither she nor Wendy were in the room, but upon further questioning, M.A.
revealed that she had been in the bedroom with Arnold sleeping on the bed.
       {¶ 86} When that line of questioning stalled, Marshall asked M.A. whether
she had ever been to a doctor for a check-up. M.A. responded “Today.” When
Marshall asked why, M.A. said, “Because my legs were hurting.” Marshall did
not explore the source of M.A.’s medical complaint, but instead returned the focus
to Arnold’s arrest:
       {¶ 87} “Your legs were hurting? Okay. Now, when daddy — you said
daddy went to jail and him not at the home, who took daddy to jail?
       {¶ 88} “A. Cops.
       {¶ 89} “* * *
       {¶ 90} “Q. Who called the cops?
       {¶ 91} “A. My mom.
       {¶ 92} “Q. Why did she call the cops?
       {¶ 93} “A. Because them was fighting.”
       {¶ 94} Marshall asked why Otto had to call the police, and continued:
       {¶ 95} “I don’t understand what your mom and dad were fighting about.
Were they fighting about something that happened to you? Yeah? Okay. I just




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want you to tell the truth, that’s all I want you to do. Okay. You are not in any
trouble. Okay? I am going to tell you the truth, [M.A.], and I want you to tell me
the truth. Okay? So your mom and your dad were fighting about something that
happened to you.
          {¶ 96} “A. I can’t – I can’t say it.”
          {¶ 97} Marshall then brought out a picture of a girl and had M.A. identity
the parts of her body. She then continued questioning M.A.:
          {¶ 98} “[W]hat would you do if someone touched one of your private
parts? What would you do?
          {¶ 99} “A. You get in trouble.
          {¶ 100} “Q. Who gets in trouble?
          {¶ 101} “A. Him.”
          {¶ 102} Upon further questioning, M.A. denied that anyone had touched or
put anything in her private parts. Marshall then asked whether anyone had asked
her to keep a secret:
          {¶ 103} “Has your mom ever told you to keep a secret?
          {¶ 104} “A. Yeah.
          {¶ 105} “Q. What secret did your mom tell you to keep?
          {¶ 106} “A. (Inaudible.)
          {¶ 107} “Q. How about your dad? Did your dad ever tell you to keep a
secret?
          {¶ 108} “A. No.
          {¶ 109} “Q. No? Has anyone ever told you not to tell?
          {¶ 110} “A. No.
          {¶ 111} “Q. No? Well, I don’t understand how come there were cops at
your house last night and how come you had to go to the doctor’s across the street.
          {¶ 112} “A. Because.




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                               January Term, 2010




       {¶ 113} “* * *
       {¶ 114} “Q. Did mommy ever come in the bedroom when the door was
locked when you and dad were sleeping? Did mom ever come in?
       {¶ 115} “A. Oh, yeah.
       {¶ 116} “Q. Yeah. What did mom see when she came in?
       {¶ 117} “A. My underwear was off.
       {¶ 118} “Q. Your underwear was off? Okay. How did your underwear get
off?
       {¶ 119} “A. Because my dad took them off.
       {¶ 120} “Q. Oh, okay. And then what happened when your dad took your
underwear off? Do you want to say it really fast in my ear what happened? After
dad took your underwear off?
       {¶ 121} “A. (Inaudible) My dad —
       {¶ 122} “Q. Took your underwear off? And then what?
       {¶ 123} “A. (Inaudible) and pee-pee with me.
       {¶ 124} “Q. Your daddy took your underwear off and touched your pee-
pee?
       {¶ 125} “A. No. And was doing pee-pees.
       {¶ 126} “Q. And was what?
       {¶ 127} “A. Him was touching my pee-pee. But he was doing pee-pees
with me. That’s why he got in jail.”
       {¶ 128} On further questioning, M.A. explained that Arnold’s “pee-pee”
went inside her “pee-pee,” that he had touched her “pee-pee” with his hand, that
he had been on top of her while “playing pee-pees,” that his “pee-pee” had




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touched the outside of her “butt,” and that his mouth had touched her “pee-pee.”2
Once Marshall had this information, she did not ask M.A. about any other
instances of abuse or any other potential abusers, but rather remained focused on
Arnold and reconfirmed this specific instance of abuse.
         {¶ 129} Marshall then took M.A. to Horner, the nurse, for a physical
exam. According to Horner’s testimony, she would have conducted a head-to-toe
examination of M.A. regardless of M.A.’s answers to Marshall’s questions, but
she explained that “that forensic interview guides my exam in that it lets me know
whether or not I need to test the child for sexually transmitted infection.” The
physical exam of M.A. revealed abrasions on the hymen consistent with a
penetrating injury.
         {¶ 130} Based on this interview, the state charged Arnold with two counts
of rape in violation of R.C. 2907.02. Over objection, the trial court found M.A. to
be unavailable for trial and that her hearsay statements to Marshall were
nontestimonial and admissible.            The state played the video recording of the
interview for the jury, which subsequently found Arnold guilty of vaginal rape.
The Tenth District affirmed, holding that Marshall was not an agent of the police
and that M.A.’s statements were not testimonial.
         {¶ 131} We accepted Arnold’s appeal to determine whether Marshall’s
interview elicited testimonial statements subject to the Confrontation Clause.
                                 The Confrontation Clause
         {¶ 132} The Sixth Amendment to the United States Constitution provides
that “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be
confronted with the witnesses against him.” Prior to 2004, the Supreme Court of
the United States had interpreted the Confrontation Clause to permit the state to


2. M.A. also said that Arnold’s “pee-pee” was green, that his “butt” and a needle touched her
“butt,” and that his ears touched her “pee-pee,” to which Marshall responded, “[M.A.], this stuff is




                                                36
                                January Term, 2010




use the hearsay statements of a declarant who did not appear at trial if the hearsay
fell within “a firmly rooted hearsay exception” or if it otherwise bore
“particularized guarantees of trustworthiness.” See, e.g., Ohio v. Roberts (1980),
448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597. Thus, statements made for
purposes of medical diagnosis or treatment were admissible notwithstanding the
inability of the accused to cross-examine the declarant. White v. Illinois (1992),
502 U.S. 346, 356-357, 112 S.Ct. 736, 116 L.Ed.2d 848, and fn. 8.
         {¶ 133} In Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354,
158 L.Ed.2d 177, however, the court recognized that the interpretation of the
Sixth Amendment articulated in Roberts could not be reconciled with the
historical underpinnings of the Confrontation Clause.        It held that the Sixth
Amendment “commands, not that [hearsay] evidence be reliable, but that
reliability be assessed in a particular manner: by testing in the crucible of cross-
examination.” Crawford at 61. Because the Sixth Amendment guarantees the
accused’s right to confront those who “bear testimony,” the Confrontation Clause
bars admission of testimonial statements unless the witness appears at trial or, if
the witness is unavailable, the accused had a prior opportunity for cross-
examination. Id. at 51. The court explained that “[w]hatever else the term
[‘testimonial’] covers, it applies at a minimum to prior testimony at a preliminary
hearing, before a grand jury, or at a former trial; and to police interrogations.” Id.
at 68.
         {¶ 134} The Supreme Court revisited the issue in Davis v. Washington
(2006), 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224.              The court held,
“Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They

important.”




                                         37
                             SUPREME COURT OF OHIO




are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.”
Davis at 822. The court held that statements to a 9-1-1 operator made during a
police interrogation conducted in response to an ongoing emergency are
nontestimonial; however, statements made to police after the emergency had
ended are testimonial.
                              Stahl, Muttart, and Siler
       {¶ 135} This court has previously applied Crawford and Davis to
determine whether statements admitted at trial were testimonial or nontestimonial.
       {¶ 136} In State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855
N.E.2d 834, we considered whether statements made by a rape victim to a DOVE-
unit nurse in the presence of a police officer were testimonial.         There, we
“adopt[ed] the ‘objective witness’ test in Ohio. For Confrontation Clause
purposes, a testimonial statement includes one made ‘under circumstances which
would lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.’ ” Id. at ¶ 36, quoting Crawford, 541 U.S. at 52,
124 S.Ct. 1354, 158 L.Ed.2d 177. We concluded that the victim’s statements to
the nurse were nontestimonial because the victim could reasonably have assumed
that repeating to a nurse or other medical professional the same information
provided to police served a separate and distinct medical purpose from the
criminal investigation. Id. at ¶ 46.
       {¶ 137} Following Stahl, in State v. Muttart, 116 Ohio St.3d 5, 2007-
Ohio-5267, 875 N.E.2d 944, we examined the issue whether a child’s statements
to a social worker at the Child Maltreatment Clinic at Mercy Children’s Hospital
in Toledo were testimonial.       We held that “[s]tatements made to medical
personnel for purposes of diagnosis or treatment are not inadmissible under




                                         38
                                January Term, 2010




Crawford, because they are not even remotely related to the evils that the
Confrontation Clause was designed to avoid.” Id. at ¶ 63. We also noted that
“[t]he fact that the information gathered by the medical personnel in this case was
subsequently used by the state does not change the fact that the statements were
not made for the state’s use.” Id. at ¶ 62. Notably, however, law enforcement had
not been involved in the interview or examination.
       {¶ 138} The court distinguished Stahl in State v. Siler, 116 Ohio St.3d 39,
2007-Ohio-5637, 876 N.E.2d 534, and, relying on Davis, held that the primary-
purpose test applies to a child declarant’s statements made to police or those
determined to be police agents:        “ ‘[Statements] are testimonial when the
circumstances objectively indicate that there is no * * * ongoing emergency, and
that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.’ ” Id. at ¶ 30, quoting Davis v.
Washington, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224. The court
rejected the argument that because of a child’s limited understanding of the
system of criminal justice, the child could not reasonably expect his or her
statements to be used at a later trial, and therefore, the child’s statements to police
interrogators are nontestimonial under the primary-purpose test.
       {¶ 139} Our cases applying Crawford and Davis thus recognize the use of
different standards when the interviewer is an agent of law enforcement and when
the interviewer is an agent of a medical provider. When the questioner is an agent
of law enforcement, the court, in accordance with Siler, looks to whether the
primary purpose of the interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.        When the questioner is a medical
professional not related to law enforcement, the court, following Stahl, applies the
objective-witness test and determines whether the circumstances would lead an




                                          39
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objective witness reasonably to believe that the statement would be available for
use at a later trial.
                         The Majority’s Dual-Capacity Test
        {¶ 140} Today’s majority, however, charts a course different from the
Confrontation Clause jurisprudence of the Supreme Court of the United States and
adopts its own dual-capacity test in which the interrogation is examined on a
question-by-question basis to determine whether the interviewer acted as an agent
of law enforcement or as an agent of some other entity when eliciting a particular
statement.     Applying this test,   it finds that testimonial and nontestimonial
statements are interspersed throughout Marshall’s interview and that Marshall
acted variously as an agent of law enforcement and as a medical examiner. This
analysis is contrary to United States Supreme Court jurisprudence, which directs
that we should look to the primary purpose of the interrogation, not the secondary
or tertiary purpose.
        {¶ 141} Here, Marshall acted as an agent of law enforcement when she
interviewed M.A., as she asked questions on behalf of the police in the absence of
an ongoing emergency to establish or prove past events relevant to later criminal
prosecution. The interview she conducted focused solely on confirming the single
instance of sexual abuse that Wendy had accused Arnold of committing: the
child’s medical history went no further than the night before, Marshall did not ask
M.A. about any prior instances of sexual abuse she had experienced, and Marshall
did not evaluate whether it would be safe to return the child to live with Wendy.
Further, as the majority explains, “the interview was rather formal, more akin to
the videotaped, planned interview of Crawford than to the frantic 9-1-1 call or the
sequestered but spur-of-the-moment interview recounted in Davis.” Majority
opinion at ¶ 35.




                                         40
                                January Term, 2010




       {¶ 142} The majority therefore properly holds that M.A.’s statement that
Arnold locked the bedroom door with her inside, her descriptions of where her
mother and brother were and what Arnold’s boxer shorts and “pee-pee” looked
like, and her statements that Arnold had removed both his and her underwear are
testimonial because “[t]hese statements likely were not necessary for medical
diagnosis or treatment. Rather, they related primarily to the state’s investigation.”
Majority opinion at ¶ 34.
       {¶ 143} Yet the majority determines that Marshall acted as an agent of
medical providers when she asked questions in any way relevant to medical
diagnosis and treatment, so that the statements that “described the acts that Arnold
performed, including that Arnold touched her ‘pee-pee,’ that Arnold’s ‘pee-pee’
went inside her ‘pee-pee,’ that Arnold’s ‘pee-pee’ touched her ‘butt,’ that
Arnold’s hand touched her ‘pee-pee,’ and that Arnold’s mouth touched her ‘pee-
pee,’ were thus necessary for the proper medical diagnosis and treatment of M.A.”
According to the majority, “[i]n eliciting these medically necessary statements,
Marshall acted as an agent of the nurse practitioner who examined M.A., not of
the investigating police officers.” Majority opinion at ¶ 40.
       {¶ 144} In my view, it is not enough that these statements were relevant
for medical diagnosis; rather, the question is whether the totality of the
circumstances objectively indicate that the primary purpose of the interview was
to facilitate medical diagnosis and treatment or whether it was to establish or
prove past events potentially relevant to later criminal prosecution.
       {¶ 145} It is manifest that Marshall’s questions sought to confirm the
allegations of sexual abuse and that proving these past events would be relevant at
a criminal prosecution, and the totality of the circumstances indicates that the
whole interview served primarily an investigative and prosecutorial purpose.
Notably, M.A. revealed the abuse in response to a series of questions asking why




                                         41
                              SUPREME COURT OF OHIO




her parents were fighting, why the police had come to her house, and why Arnold
had gone to jail, and M.A. stated that Arnold “was doing pee-pees” with her and
that “[t]hat’s why he got in jail.”
        {¶ 146} Thus, M.A.’s recorded statements “are functionally identical to
live, in-court testimony, doing ‘precisely what a witness does on direct
examination.’ ” Melendez-Diaz v. Massachusetts (2009), ___ U.S. ___, 129 S.Ct.
2527, 2532, 174 L.Ed.2d 314, quoting Davis, 547 U.S. at 830, 126 S.Ct. 2266,
165 L.Ed.2d 224. Her statements share the same “ ‘striking resemblance’ of the
Crawford statement to civil-law ex parte examinations” that the court recognized
in Davis: Marshall separated M.A. from her mother for the interview but not for
the physical exam, M.A. “deliberately recounted, in response to police
questioning, how potentially criminal past events began and progressed,” and the
interview occurred after the incident and any related exigencies had ended. Davis
at 830. Further, the CCFA perpetuated the interview for trial.
        {¶ 147} The fact that the answers to Marshall’s questions may also be used
for a nontestimonial purpose does not mean that M.A.’s statements are not
testimonial or that the nontestimonial purpose takes precedence. As the Eighth
Circuit Court of Appeals explained in United States v. Bordeaux (C.A.8, 2005),
400 F.3d 548, 556, “That [the child’s] statements may have also had a medical
purpose does not change the fact that they were testimonial, because Crawford
does not indicate, and logic does not dictate, that multi-purpose statements cannot
be testimonial.” Accord State v. Henderson (2007), 284 Kan. 267, 293, 160 P.3d
776, (“while one purpose of the interview was to enable some assistance to [the
child victim], the circumstances of this case objectively indicate that its primary
purpose was to establish past events potentially relevant to a later criminal
prosecution of Henderson”); State ex rel. Juvenile Dept. of Multnomah Cty. v. S.P.
(2009), 346 Or. 592, 624, 215 P.3d 847 (recognizing that statements to a child-




                                        42
                               January Term, 2010




abuse-evaluation team served dual purposes of providing treatment to the victim
and obtaining evidence against the accused, but holding that “statements in a
formal setting, in response to structured questions about past events” asked by
persons who were proxies for law enforcement, were testimonial).
       {¶ 148} Contrary to the majority’s assertion, Davis does not support the
proposition that “[t]here is no basis in the law for concluding that Marshall’s dual
capacity renders statements made by M.A. for the purpose of medical diagnosis
and treatment inadmissible pursuant to the Confrontation Clause.”          Majority
opinion at ¶ 41. Rather, the United States Supreme Court in Davis emphasized
that it had not held that “a conversation which begins as an interrogation to
determine the need for emergency assistance cannot, as the Indiana Supreme
Court put it [in Hammon v. State], ‘evolve into testimonial statements,’ 829
N.E.2d, at 457, once that purpose has been achieved.” (Emphasis added.) Davis,
547 U.S. at 828, 126 S.Ct. 2266, 165 L.Ed.2d 224.
       {¶ 149} However, by the majority’s reckoning, the converse occurred here:
an interrogation eliciting testimonial statements (i.e., that Arnold locked the door
and pulled down M.A.’s underwear) evolved into a conversation to obtain
medically necessary statements (i.e., Arnold raped the child). Further, the United
States Supreme Court in Davis did not perform the question-by-question analysis
that the majority undertakes in this case; rather, the court focused on whether the
totality of the circumstances indicate that “the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.” Davis at 822.
       {¶ 150} In my view, the primary purpose of Marshall’s questioning was to
establish what had been done to M.A. and who had done it. Accordingly, M.A.’s
statements are testimonial and their admission at trial without a prior opportunity




                                        43
                            SUPREME COURT OF OHIO




to cross-examine M.A. violated Arnold’s right to confront the witnesses against
him.
       {¶ 151} Tellingly, this view that statements elicited by interviewers
cooperating with law enforcement are testimonial is supported by the weight of
authority addressing similar circumstances. See, e.g., Bordeaux, 400 F.3d at 556;
People v. Sisavath (2004), 118 Cal.App.4th 1396, 1402, 13 Cal.Rptr.3d 753; State
v. Hooper (2007), 145 Idaho 139, 146, 176 P.3d 911; In re Rolandis G (2008),
232 Ill.2d 13, 32-33, 327 Ill.Dec. 479, 902 N.E.2d 600; State v. Bentley (Iowa
2007), 739 N.W.2d 296, 302; State v. Henderson (2007), 284 Kan. 267, 293, 160
P.3d 776; Hartsfield v. Commonwealth (Ky.2009), 277 S.W.3d 239, 245; State v.
Justus (Mo.2006), 205 S.W.3d 872; State v. Blue, 2006 ND 134, 717 N.W.2d 558,
at ¶ 17-18; State v. Mack (2004), 337 Or. 586, 593, 101 P.3d 349.
       {¶ 152} The Confrontation Clause ensures that “evidence admitted against
an accused is reliable and subject to the rigorous adversarial testing that is the
norm of Anglo-American criminal proceedings.” Maryland v. Craig (1990), 497
U.S. 836, 845-846, 110 S.Ct. 3157, 111 L.Ed.2d 666. Because the principal evil
at which the Confrontation Clause is directed is the use of ex parte examinations
as evidence against the accused such as occurred in this case, I would reverse the
judgment of the court of appeals.
                              __________________
       Ron O’Brien, Franklin County Prosecuting Attorney, and Kimberly Bond,
Assistant Prosecuting Attorney, for appellee.
       Yeura R. Venters, Franklin County Public Defender, and David L. Strait,
Assistant Public Defender, for appellant.
       Vorys, Sater, Seymour & Pease, L.L.P., Lisa Pierce Reisz, and Melissa J.
Mitchell, urging affirmance for amici curiae Nationwide Children’s Hospital and
the Center for Child and Family Advocacy.




                                        44
                              January Term, 2010




       Richard Cordray, Attorney General, Benjamin C. Mizer, Solicitor General,
Elisabeth A. Long, Deputy Solicitor, and Rebecca L. Thomas, Assistant Solicitor,
urging affirmance for amicus curiae Attorney General of Ohio.
       Timothy Young, Ohio Public Defender, and Kelly K. Curtis, Assistant
Public Defender, urging reversal for amicus curiae Ohio Public Defender.
       Ian N. Friedman & Associates, Ian N. Friedman, and Eric C. Nemecek,
urging reversal for amicus curiae Ohio Association of Criminal Defense Lawyers.
                          ______________________




                                       45
