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 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 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. 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 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 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, 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 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. 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 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 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 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.

{¶ 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 —

{¶ 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 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.

{¶ 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 touched the outside of her "butt," and that his mouth had touched her "pee-pee." 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 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 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 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 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.

{¶ 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 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-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, 126 S.Ct. 2266, 165 L.Ed.2d 224.

{¶ 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 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.