                 IN THE SUPREME COURT OF IOWA
                             No. 75 / 06-1000

                        Filed September 28, 2007

STATE OF IOWA,

      Appellant,

vs.

JAMES HOWARD BENTLEY,

      Appellee.


      Appeal from the Iowa District Court for Benton County and Linn

County, Denver D. Dillard, Judge.



      State appeals from the district court’s pre-trial ruling that admission

of a ten-year-old child’s videotaped statements at trial would violate the

defendant’s right to confront a witness against him under the Sixth

Amendment to the United States Constitution. AFFIRMED.



      Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney

General, David C. Thompson, Benton County Attorney, Harold Denton, Linn

County Attorney, and Nicholas Maybanks, Assistant Linn County Attorney,

for appellant.


      Thomas J. O’Flaherty of O’Flaherty Law Firm, North Liberty, for

appellee.



      Alice A. Phillips of American Prosecutors Research Institute,

Alexandria, Virginia, for amicus curiae.
                                           2

HECHT, Justice.

       The issue presented in this interlocutory appeal is whether the

videotaped statements of J.G., a ten-year-old child, are admissible under

the Confrontation Clause of the United States Constitution at James

Bentley’s trial on sexual abuse charges.             Because we conclude J.G.’s

statements are testimonial, J.G. is unavailable to testify at trial, and

Bentley had no opportunity for cross-examination, we affirm the district

court’s ruling that the videotaped statements are inadmissible under the

Confrontation Clause.

       I.     Factual Background.

       On November 16, 2004, J.G. was interviewed by Roseanne Matuszek,

a counselor at St. Luke’s Child Protection Center (CPC). 1 The interview was

arranged by Officer Ann Deutmeyer, an investigator employed by the Cedar

Rapids Police Department, and Pam Holtz, a representative of the Iowa

Department of Human Services (DHS).                Officer Deutmeyer and Holtz

watched and listened to the interview through an “observation window.”

During the videotaped interview, J.G. made numerous statements alleging

James Bentley sexually abused her. Bentley’s brother murdered J.G. on or

around March 24, 2005. Other facts relevant to the disposition of this

appeal will be presented below in our analysis of the legal issue presented.

       II.    Procedural Background.

       Two days after J.G.’s interview at the CPC, the Linn County Attorney

charged Bentley with the crime of sexual abuse in the second degree, in

violation of Iowa Code sections 709.1 and 709.3 (2003). Soon afterward, the

Benton County Attorney filed similar charges against Bentley.



       1Matuszek  holds a Master’s Degree in counseling and has interviewed nearly 3,000
children during her fourteen years of service at the CPC.
                                        3

      Bentley filed in both cases a motion for a preliminary determination of

the admissibility of J.G.’s videotaped interview under the Confrontation

Clause of the United States Constitution.             The district court ruled

admission of the videotape would not violate the Confrontation Clause.

After we denied Bentley’s application for review of that ruling, he filed a

motion in limine seeking to prevent the videotape’s admission at trial.

      After a hearing on the motion in limine, the district court held

admission of the videotape would violate Bentley’s constitutional right to

confront a witness against him. 2           The State filed an application for

discretionary review, which we granted.          We stayed the district court

proceedings pending resolution of this matter.

      III.   Standard of Review.

      We review de novo claims involving the Confrontation Clause. State v.

Hallum, 606 N.W.2d 351, 354 (Iowa 2000).

      IV.    Analysis.

      The Confrontation Clause of the United States Constitution

guarantees to Bentley the right “to be confronted with the witnesses against

him.” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 124

S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States Supreme Court

held tape-recorded statements police officers elicited during a custodial

interrogation of the defendant’s wife were inadmissible at the defendant’s

trial because they were testimonial, the declarant was unavailable at trial,

and the defendant had no prior opportunity for cross-examination. 541

U.S. at 38–40, 68–69, 124 S. Ct. at 1357, 1374, 158 L. Ed. 2d at 184–85,

203. The Court reasoned that the text and history of the Sixth Amendment

support two inferences: (1) “[T]he principal evil at which the Confrontation

       2By agreement of the parties, the hearing and ruling on the motion in limine

pertained to both the Linn and Benton County cases.
                                       4

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

particularly its use of ex parte examinations as evidence against the

accused”; and (2) “[T]he Framers would not have allowed admission of

testimonial statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant had had a prior opportunity

for cross-examination.” Id. at 50, 53–54, 124 S. Ct. at 1363, 1365, 158

L. Ed. 2d at 192, 194. Because the parties agree that J.G. is, tragically,

“unavailable,” and Bentley had no prior opportunity to cross-examine J.G.,

the admissibility of J.G.’s videotaped statements depends on whether they

are “testimonial” if offered against Bentley in this case. If the statements

are testimonial, they are inadmissible against Bentley at trial; but if they are

nontestimonial, the Confrontation Clause does not prevent their admission.

      Prior to Crawford, the government bore the burden of proving

constitutional admissibility in response to a Confrontation Clause

challenge.   United States v. Arnold, 486 F.3d 177, 213 (6th Cir. 2007)

(Nelson Moore, J., dissenting) (citing Idaho v. Wright, 497 U.S. 805, 816, 110

S. Ct. 3139, 3147, 111 L. Ed. 2d 638, 652 (1990); Ohio v. Roberts, 448 U.S.
56, 74–75, 100 S. Ct. 2531, 2543, 65 L. Ed. 2d 597, 613 (1980)). It does

not appear that Crawford altered this allocation of the burden of proof. Id.

Accordingly, we conclude the government bears the burden of proving by a

preponderance of the evidence that J.G.’s statements are nontestimonial.

      The Court’s view expressed in Crawford that the Framers intended

the Confrontation Clause to preclude admission of “testimonial” statements

made by unavailable witnesses who have not been subjected to cross-

examination was based, in part, on the Confrontation Clause’s express

reference to “witnesses against the accused”—that is, to those who “bear

testimony” against the accused, whether in court or out of court. Crawford,
                                      5

541 U.S. at 51, 124 S. Ct. at 1364, 158 L. Ed. 2d at 192 (internal quotation

marks and citations omitted).      One who “bears testimony” makes “[a]

solemn declaration or affirmation . . . for the purpose of establishing or

proving some fact.” Id. (internal quotation marks and citations omitted).

      The Court identified in Crawford “[v]arious formulations of th[e] core

class of ‘testimonial’ statements” that the Confrontation Clause was

intended to address: “ex parte in-court testimony or its functional

equivalent,” “extrajudicial statements . . . contained in formalized

testimonial   materials,”   and   “statements     that   were   made    under

circumstances which would lead an objective witness reasonably to believe

that the statement[s] would be available for use at a later trial.” Id. at 51–

52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193 (internal quotation marks and

citations omitted).   Although the Court did not offer a comprehensive

definition of “testimonial statement,” its opinion noted that even if a “narrow

standard” is used to determine whether statements are testimonial,

“[s]tatements taken by police officers in the course of interrogations,” such

as the declarant’s statements in Crawford, are testimonial. Id. at 52, 124

S. Ct. at 1364, 158 L. Ed. 2d at 193.

      As the court noted in Crawford, “one can imagine various definitions

of “interrogation.” 541 U.S. at 53 n.4, 124 S. Ct. at 1365 n.4, 158 L. Ed. 2d

at 194 n.4. Using the term in its colloquial sense, as the court did in

Crawford, see id., we conclude the interview of J.G. was essentially a

substitute for police interrogation at the station house. Representatives of

the police department and DHS were present and participated in the

interview. J.G. was informed at the outset of the conversation that a police

officer was present and listening. The questions posed were calculated to

elicit from J.G. factual details of the past criminal acts that Bentley had
                                      6

allegedly perpetrated against her. When the interview was concluded, the

officer left the CPC with a videotaped copy of the interview which she

considered evidence to be used against Bentley. The recorded interview

conducted with the participation of a police officer is in our view a “modern

practice[] with closest kinship to the abuses at which the Confrontation

Clause was directed.” Crawford, 541 U.S. at 68, 124 S. Ct. at 1374, 158

L. Ed. 2d at 203.

      Upon our de novo review, we conclude the government has not met its

burden of proving the recorded statements of J.G. identifying Bentley as her

abuser and describing his acts of alleged sexual abuse are nontestimonial.

The extensive involvement of a police officer in the interview leads us to

conclude J.G.’s statements were in effect “taken by [a] police officer[] in the

course of [an] interrogation[].” Crawford, 541 U.S. at 52, 124 S. Ct. at 1364,

158 L. Ed. 2d at 193.

      A “community task force steering committee,” which included some

law enforcement personnel, organized the CPC. The record discloses a

close, ongoing relationship has persisted between the CPC and

representatives of local law enforcement agencies. The CPC acknowledges

that one of its objectives is to provide centralized access to services,

including law enforcement services.       The police department’s standard

operating procedure calls for the referral of child victims of sexual abuse to

the CPC for “forensic interviews.”        Law enforcement officials make

continuing education workshops available to CPC employees, and Matuszek

has attended such seminars.

      Holtz and Officer Deutmeyer arranged the appointment for J.G.’s

interview at the CPC. Immediately before and after J.G.’s interview, a

“multi-disciplinary team,” which included Officer Deutmeyer, met to discuss
                                      7

the case.    Such meetings of CPC team members routinely include

discussions of whether crimes have been committed against the child-

interviewee and the identities of the perpetrators of those crimes.

      Officer Deutmeyer confirmed that CPC interviews with children

generally focus “on the alleged crime.” In fact, the interview of J.G. in this

case illustrates the typical CPC interview protocol.       Matuszek briefly

engaged in casual “rapport building” as the interview began, but the subject

of her questions and J.G.’s answers soon shifted and focused primarily on

the specific acts of sexual abuse Bentley allegedly perpetrated against J.G.

      The participants in the interview have acknowledged that the

interview served an investigative function for the State. Matuszek’s written

“patient interview report” described the interview as an “evidentiary

interview.” Officer Deutmeyer accurately described Matuszek’s conversation

with J.G. as a “forensic interview” and an “investigative tool.” J.G. was

informed of the involvement of the police department on three separate

occasions during the interview. Matuszek opened the interview by telling

J.G. a police officer and a DHS representative were listening on the other

side of the observation window. When J.G. subsequently indicated she

wanted to discontinue the interview, Matuszek specifically implored J.G. to

continue because “it’s just really important the police know about

everything that happened.” At a later point in the interview, Matuszek

encouraged J.G. to provide additional details because the police were

“probably going to want to know just a little bit more” about the

arrangement of Bentley’s apartment, where some of the alleged acts of

sexual abuse occurred.

      Officer Deutmeyer’s involvement in the interview was not limited to

mere observation. Toward the end of the interview, Matuszek told J.G. she
                                      8

was going next door to talk with the police officer and a representative of

DHS about whether she “forgot to ask . . . some questions.” When she

returned to the interview room, Matuszek asked J.G. additional specific

questions about Bentley’s conduct.         According to Officer Deutmeyer,

questions posed to the interviewee after such mid-interview consultations

between CPC staff and representatives of law enforcement are typically

directed toward obtaining more “specific information because the child has

given [the police] enough to believe that a crime has been committed,” but

the police need more evidence to substantiate the allegations and decide

what course to pursue in future investigations. After J.G.’s interview, the

CPC followed its protocol by giving a copy of the tape to Officer Deutmeyer.

The tape of the interview was marked as “evidence” and placed in the police

department’s evidence storage room. These factual circumstances make it

objectively apparent that “the purpose of the [recorded interview] was to nail

down the truth about past criminal events.” Davis v. Washington, 547 U.S.

____, _____, 126 S. Ct. 2266, 2278, 165 L. Ed. 2d 224, 242 (2006).

      Indicia of “formality” surrounding J.G.’s statements reinforce our

determination that J.G.’s statements were the product of a police

interrogation. J.G. spoke in a calm environment responding to a series of

structured questions posed by Matuszek. The statements constituted a

historical account of past events, deliberately provided in response to

questioning regarding past events.        The statements were made in an

environment designed and equipped to facilitate forensic interviews

calculated to collect evidence against those suspected of abusing children.

As we have already noted, the interview room included an observation

window that enabled police officers to watch and participate in the
                                             9

interview, and video equipment that was used to make a record of the

interview for use by law enforcement officers.

       The State asserts J.G.’s statements are nontestimonial because a

reasonable child of J.G.’s chronological age (10) and functional age (7)

would not have understood her statements would be used to prosecute the

defendant. We conclude, however, an analysis of the purpose of the

statements from the declarant’s perspective is unnecessary under the

circumstances presented here. J.G.’s testimonial statements lie at the very

core of the definition of “testimonial,” and fall within the category of ex parte

examinations against which the Confrontation Clause was directed. 3

       We also reject the State’s assertion that Bentley’s right to

confrontation in this case should yield to the interests of J.G. and the State

because the Confrontation Clause is not inflexibly applied. The United

States Supreme Court has concluded that “[a] State’s interest in the

physical and psychological well-being of child abuse victims may be


       3We  leave for another day the decision whether statements made by children during
interrogations conducted by forensic interviewers without police participation are
testimonial. As in Crawford, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 and Davis,
547 U.S. ____, 126 S. Ct. 2266, 165 L. Ed. 2d 224, our holding today makes it unnecessary
to decide whether and when statements made to someone other than law enforcement
personnel are “testimonial.” Courts addressing this question have reached disparate
conclusions. Compare United States v. Bordeaux, 400 F.3d 548, 556 (8th Cir. 2005) (child
sex abuse victim’s videotaped statements made to a forensic interviewer were testimonial);
Rangel v. State, 199 S.W.3d 523, 533–36 (Tex. App. 2006) (child’s statements made two
months after alleged abuse to child protective services investigator were testimonial); State
v. Buda, 912 A.2d 735, 745–46 (N.J. Super. Ct. App. Div. 2006) (child’s statements to
government-employed social worker were testimonial); State v. Hopkins, 154 P.3d 250, 257–
58 (Wash. Ct. App. 2007) (same), with People v. Geno, 683 N.W.2d 687, 692 (Mich. Ct. App.
2004) (statement to director of children’s assessment center was nontestimonial because
the interrogator was not “a government employee”); State v. Bobadilla, 709 N.W.2d 243,
254–56 (Minn. 2006) (child’s statements to protective service worker during risk
assessment interview were nontestimonial); State v. Sheppard, 842 N.E.2d 561, 566–67
(Ohio Ct. App. 2005) (statement to private clinical counselor in mental health interview was
nontestimonial); Commonwealth v. Allshouse, 924 A.2d 1215, 1222–24 (Pa. Super. Ct. 2007)
(child abuse victim’s statements to county youth services caseworker at the child’s home
were nontestimonial).
                                      10

sufficiently important to outweigh, at least in some cases, a defendant’s

right to face his or her accusers in court.” Maryland v. Craig, 497 U.S. 836,

853, 110 S. Ct. 3157, 3167, 111 L. Ed. 2d 666, 683 (1990). In Craig, the

Court held the Confrontation Clause does not “categorically prohibit[]”

testimony via closed circuit television by a child victim of sexual abuse if in-

court testimony would be traumatic for the child. Id. at 840, 110 S. Ct. at

3160, 111 L. Ed. 2d at 675. Although Craig does stand for the proposition
that the circumstances of the confrontation may be modified to protect

children, it does not support the State’s assertion that the right of

confrontation may be dispensed with altogether if the declarant is a child.

In Craig, the child victim testified under oath during trial and was subjected

to cross-examination through closed-circuit television. The circumstances

in the case now before the court are quite different, as J.G. is deceased and

therefore unavailable to testify against Bentley, who has no opportunity to

subject J.G.’s recorded statements to cross-examination. Bentley’s right to

confront a witness against him need not yield to the State’s interest under

the circumstances of this case.

      Our conclusion that J.G.’s statements are testimonial is consistent

with the decisions of other courts. L.J.K. v. Alabama, 942 So. 2d 854, 861

(Ala. 2005) (statements of four-year-old and six-year-old children to a state-

employed child abuse investigator were testimonial); T.P. v. State, 911 So. 2d
1117, 1123 (Ala. Crim. App. 2004) (child’s statements to a social worker in

the presence of a police investigator were testimonial); People v. Sisavath, 13

Cal. Rptr. 3d 753, 757–58 (Cal. Ct. App. 2004) (child’s statement to

interview specialist at a private victim assessment center, made in the

presence of the prosecuting attorney and district attorney’s investigator,

was testimonial); People v. Sharp, 155 P.3d 577, 579–82 (Colo. Ct. App.
                                     11

2006) (five-year-old’s videotaped interview with private forensic interviewer

was testimonial where a police detective arranged the interview and

interviewer asked questions requested by the detective); In re Rolandis G.,

817 N.E.2d 183, 188 (Ill. App. Ct. 2004) (statements to private child abuse

investigator while police officer watched through one-way glass were

testimonial); State v. Henderson, 160 P.3d 776, 789–90 (Kan. 2007)

(statements made by child sexual abuse victim to social worker and police

detective were testimonial); State v. Snowden, 867 A.2d 314, 325 (Md. 2005)

(child sex abuse victims’ statements during interview with DHS sexual

abuse investigator arranged by police detective were testimonial); Flores v.

State, 120 P.3d 1170, 1178–79 (Nev. 2005) (statements made by a child

describing child abuse to police investigator and child protective services

worker were testimonial); State v. Blue, 717 N.W.2d 558, 564 (N.D. 2006)

(statements to private forensic interviewer working “in concert with or as

agent of” the police were testimonial); State v. Mack, 101 P.3d 349, 352–53

(Or. 2004) (statements made by three-year-old during interviews with DHS

caseworker were testimonial, where police officers arranged the interviews

as a substitute for police interrogation, were present during the interviews,

and videotaped them); State v. Pitt, 147 P.3d 940, 944–45 (Or. Ct. App.

2006) (statements made to private forensic child interviewer while police

officer videotaped interview through one-way glass were testimonial), opinion

adhered to on reconsideration at 159 P.3d 329 (Or. Ct. App. 2007); In re S.R.,

920 A.2d 1262, 1264 (Pa. Super. Ct. 2007) (child sex abuse victim’s

statements made to a forensic interview specialist while police officer

watched through one-way glass were testimonial).
      We credit the State’s assertion that the CPC performs very important

and laudable services in furtherance of the protection of children. The
                                     12

child-friendly CPC facility includes a waiting room and play area with toys,

games, books, a fish aquarium, and a television.        The interview room

includes drawing supplies and is equipped to maximize children’s comfort.

It is beyond dispute that information gathered from J.G. in such a child-

friendly, safe environment could have been very useful in the treatment of

her well-documented psychological conditions. The work of the CPC and

the team of professionals who took J.G.’s statement is not impugned by our

characterization of J.G.’s statements as “testimonial.” The actors were

doing important work intended to investigate past alleged crimes and

prevent future crimes. Although one of the significant purposes of the

interrogation was surely to protect and advance the treatment of J.G., as we

have discussed above, the extensive involvement of the police in the

interview rendered J.G.’s statements testimonial. Therefore, the district

court correctly ruled the admission of the statements would violate

Bentley’s rights under the Confrontation Clause under the circumstances of

this case.

      V.     Conclusion.
      Bentley’s right to confront witnesses against him is an essential

constitutional right, and we must be vigilant in guarding against its erosion.

On this point, we share the opinion of Chief Justice Marshall, who wrote:

      I know of no principle in the preservation of which all are more
      concerned. I know none, by undermining which, life, liberty
      and property, might be more endangered. It is therefore
      incumbent on courts to be watchful of every inroad on a
      principle so important.

See Crawford, 541 U.S. at 73, 124 S. Ct. at 1377, 158 L. Ed. 2d at 206

(Rehnquist, J., concurring) (quoting United States v. Burr, 25 F. Cas. 187,

193 (C.C. Va. 1807) (No. 14,694)). Under the circumstances of this case,

the district court correctly concluded J.G. was a witness who bore
                                     13

testimony against Bentley in the recorded interview. Because Bentley has

no opportunity to cross-examine J.G., the admission of her testimonial

statements would violate Bentley’s right to confront witnesses against him.

We therefore affirm the district court’s ruling.

      AFFIRMED.
