870 N.E.2d 333 (Ill. 2007)
We disagree with Savoca's premise and reasoning. First, even if the premise were correct, and all of the examples did share the trait the court observed, they were merely examples — the Court never stated any governmental involvement requirement and indeed, in Davis, made clear that it had not done so. See Davis, 547 U.S. at ___ n. 2, 126 S.Ct. at 2274 n. 2, 165 L.Ed.2d at 238 n. 2 ("our holding today makes it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are `testimonial'"). Moreover, we disagree with Savoca's premise that all of the examples are statements "made to an authority figure in an authoritarian environment" ( Savoca, 335 F.Supp.2d at 393 ), because one of the examples was a simple affidavit. Surely, although some notaries public might be "authority figures" they certainly are not all, nor do they all work in environments which can fairly be described as "authoritarian." The universal rule Savoca sought to infer simply is not there.
The Court has not as yet given any indication that testimonial statements must be made to a government officer, and our own review of the authorities and the historical background — specifically Raleigh's case — leads us to the conclusion that statements can be testimonial even if not made directly to agents of the state.
Accordingly, the question remains how to determine whether statements are testimonial when they are made outside this context. We believe that the only proper focus is on the declarant's intent: Would the objective circumstances have led a reasonable person to conclude that their statement could be used against the defendant?
The Davis Court's focus on the interrogator's motive when the statements are the product of police interrogation is not inconsistent with focusing on the intent or motive of the declarant in other cases. See, e.g., State v. Scacchetti, 711 N.W.2d 508, 513 (Minn.2006) (central question is "`whether either a declarant or a government questioner is acting, to a substantial degree, in order to produce a statement for trial'"), quoting State v. Bobadilla, 709 N.W.2d 243, 252 (Minn.2006) . Davis itself made clear that even with regards to questions elicited in the course of a police interrogation, "it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." Davis, 547 U.S. at ___ n. 1, 126 S.Ct. at 2274 n. 1, 165 L.Ed.2d at 237 n. 1 . Moreover, it is important to remember that in Davis the Court was dealing only with statements produced in response to police questioning. The Court clearly left for another day any discussion of rules for evaluating "whether and when statements made to someone other than law enforcement personnel" ( Davis, 547 U.S. at ___ n. 2, 126 S.Ct. at 2274 n. 2, 165 L.Ed.2d at 238 n. 2 ) or statements "made in the absence of any interrogation" ( Davis, 547 U.S. at ___ n. 1, 126 S.Ct. at 2274 n. 1, 165 L.Ed.2d at 237 n. 1 ) might be "testimonial."
We believe that by focusing on the interrogator's intent, the Court was most likely acknowledging the reality that when a declarant is supplying information in response to direct police questioning, the declarant is rarely "in the driver's seat." Although ultimately it is the declarant's intent to which the confrontation clause looks, it is governmental abuse against which the clause is designed to guard. Thus, given that the ultimate question is whether the statement is being made "`for the purpose of establishing or proving some fact'" ( Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 193, quoting 1 N. Webster, An American Dictionary of the English Language (1828)), like "what a witness does on direct examination" (emphasis omitted) ( Davis, 547 U.S. at ___, 126 S.Ct. at 2278, 165 L.Ed.2d at 242 ), it is the government's motives that are paramount when the government is directly involved in eliciting the statements at issue. This does not determine the proper focus when evaluating statements other than those produced by a government interrogation, however.
Before Davis was decided, many authorities concluded that the declarant's intent was paramount in all evaluations of whether a statement was testimonial. Authorities have noted that at least two of the three proposed definitions of "testimonial" in Crawford focus on the declarant's perspective in giving the statement. See, e.g., M. Raeder, Remember the Ladies and the Children Too: Crawford's Impact on Domestic Violence and Child Abuse Cases, 71 Brook. L.Rev. 311, 318 (2005); cf. People v. Vigil, 127 P.3d 916, 925 (Colo.2006) ("the `common nucleus' shared by the Supreme Court's three formulations of testimonial evidence [citation] centers upon the declarant's reasonable expectations"). The declarant-centered approach is favored by Professor Richard Friedman of the University of Michigan Law School, one of the scholars whose works Crawford relied upon (see, e.g., Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 198 ) "in framing its re-definition of the Confrontation Clause." United States v. Cromer, 389 F.3d 662, 673 (6th Cir.2004) . Friedman, who has been closely associated with the testimonial approach to the confrontation clause ( Cromer, 389 F.3d at 673 ), argues in favor of a definition of "testimonial" based on the declarant's anticipation that the statement would likely be used in prosecution. Friedman, 71 Brook. L.Rev. at 251-52, 255-59. Friedman asserts: "To be testimonial, it must appear from the perspective of the witness that the statement is transmitting information that will, to a significant probability, be used in prosecution." Friedman, 71 Brook. L.Rev. at 259.
An earlier version of this definition was adopted by the Sixth Circuit Court of Appeals in Cromer. After referring to pre- Crawford work by Friedman, Cromer concluded that his proposed definition of "testimonial" was "both well-reasoned and wholly consistent with the purpose behind the Confrontation Clause." Cromer, 389 F.3d at 674 . According to Cromer, the "proper inquiry" in a testimonial analysis "is whether the declarant intends to bear testimony against the accused." Cromer, 389 F.3d at 675 . This intent, Cromer held, "may be determined by querying whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Cromer, 389 F.3d at 675 . See also Vigil, 127 P.3d at 925 (quoting favorably Cromer's explanation of this "proper inquiry") (collecting cases).
We agree with Professor Friedman and the Cromer court that outside of the context of statements produced in response to government interrogation, it is the declarant's perspective which is paramount in a testimonial analysis.
However, even in this context we believe Davis can offer some guidance. There, the Court did not look to the actual subjective intent of the police officer conducting the interrogation leading to the statements in question. Rather, the Court clearly stated that the proper inquiry is what "the circumstances objectively indicate" the purpose of the interrogation to be. Davis, 547 U.S. at ___, 126 S.Ct. at 2273-74, 165 L.Ed.2d at 237 . There is no reason to believe that the applicability of the confrontation clause would depend on objective manifestations of intent when the statement is the product of police interrogation but would depend on actual subjective intent outside of this context. Accordingly, in our view, the proper question is not whether the declarant actually did intend or foresee that his statement would be used in prosecution. Rather, the question is whether the objective circumstances indicate that a reasonable person in the declarant's position would have anticipated that his statement likely would be used in prosecution. See Cromer, 389 F.3d at 675 ; Friedman, 71 Brook. L.Rev. at 252.
The fact that the instant case involves a child declarant complicates the issue, however. See Lagunas v. State, 187 S.W.3d 503, 519 (Tex.App.2005) ("Courts around the nation have struggled with the application of Crawford to child witnesses"). Application of the objective approach to child witnesses raises the question of whether the child's age ought to be taken into account. In other words, when we speak of an "objective person" in the declarant's position, does that mean an objective witness the same age as the child, or an objective adult? There is authority for both views. One case holding that age should not enter into the equation is Sisavath, 118 Cal.App.4th at 1402 n. 3, 13 Cal.Rptr.3d at 758 n. 3 (rejecting the notion that "an `objective witness' should be taken to mean an objective witness in the same category of persons as the actual witness — here, an objective four year old"). Citing Sisavath, the Maryland Court of Appeals has also concluded that a child's age should not play a part in resolving whether a statement is testimonial. See State v. Snowden, 385 Md. 64, 90-91, 867 A.2d 314, 329 (2005) (concluding that "an objective test, using an objective person, rather than an objective child of that age, is the appropriate test for determining whether a statement is testimonial in nature").
Both Snowden and Sisavath based their holdings on the important rights of criminal defendants which the confrontation clause serves to protect. However, the statements at issue in both cases were made in response to structured questioning which was clearly intended to produce testimony for trial. In Sisavath, for instance,
"[The interview] took place after a prosecution was initiated, was attended by the prosecutor and the prosecutor's investigator, and was conducted by a person trained in forensic interviewing. Under these circumstances, it does not matter what the government's actual intent was in setting up the interview, where the interview took place, or who employed the interviewer. It was eminently reasonable to expect that the interview would be available for use at trial." Sisavath, 118 Cal.App.4th at 1403, 13 Cal.Rptr.3d at 758 .
Similarly, in Snowden,
"[The interviewer's] participation in this matter was initiated, and conducted, as part of a formal law enforcement investigation. The children were interviewed at the behest of Detective Davey of the Montgomery County Police Department, who was actively involved in the investigation. * * *
Any argument as to the logistics or style of the interviews blatantly disregards the undeniable fact that the express purpose of bringing the children to the facility to be interviewed was to develop their testimony for possible use at trial. " (Emphasis added.) Snowden, 385 Md. at 84-85, 867 A.2d at 325-26 .
Because both Snowden and Sisavath predated Davis, the courts focused on the declarant's intent in making the statements at issue and believed that ignoring the declarant's age was the only way to protect the rights of the defendant. In the wake of Davis, however, the "objective circumstances" of the statements at issue in those cases would almost certainly lead courts to their being found testimonial without looking to the declarant's intent. Accordingly, we find Sisavath and Snowden to be of minimal guidance. After Davis, the means those courts chose — to disregard the age of the declarant — is no longer required to achieve the end the courts sought to serve — to protect the confrontation clause rights of defendants when police or their proxies question child victims.
On the other hand, numerous courts have held that in the case of a child's statement, age is among the circumstances which are relevant to evaluating whether the declarant would have reasonably anticipated that his statement would be available for use at subsequent trial. See, e.g., Scacchetti, 711 N.W.2d at 514 (victim's statements in earlier case were not testimonial because "the three-year-old victim was not acting to preserve testimony for trial because children of that age are simply unable to understand the legal system and the consequences of statements made during the legal process'"), quoting Bobadilla, 709 N.W.2d at 255-56 ; Vigil, 127 P.3d at 925 ("an assessment of whether or not a reasonable person in the position of the declarant would believe a statement would be available for use at a later trial involves an analysis of the expectations of a reasonable person in the position of the declarant. Expectations derive from circumstances, and, among other circumstances, a person's age is a pertinent characteristic for analysis"); In re D.L., 2005-Ohio-2320, 2005 WL 1119809, ¶ 20 (a child's statements are testimonial under Crawford if "the circumstances surrounding the contested statements led the three year-old to reasonably believe her disclosures would be available for use at a later trial, or that the circumstances would lead a reasonable child of her age to have that expectation' [citation]"); Lagunas, 187 S.W.3d at 519 (holding that a child's age and emotional state are factors to be considered in determining whether her statements were testimonial); State v. Brigman, 171 N.C.App. 305, 312-13, 615 S.E.2d 21, 25-26 (2005) (taking child's age into account in determining that her statements were nontestimonial).
In addition to the above authority, Professor Friedman has written directly on the issue of child witnesses:
"the younger and less mature and understanding a child is, the less likely her statement should be considered testimonial, subject to the Confrontation Clause, and therefore, all other things being equal, the more likely the statement should be admitted. This conclusion, however, is really not paradoxical at all. Even statements by very young children may be highly probative. But very young children are not yet at a stage where they can be expected to take the responsibility of being a witness — the responsibility of speaking under oath, subject to questioning by the accused, under the implicit injunction, `Look me in the eye and say that.' With respect to very young children — I will not try to say here just how young — we should admit their statements for what they are worth, without pretending that the children have the capacity to act like adults." (Emphasis omitted.) R. Friedman, The Conundrum of Children, Confrontation, and Hearsay, 65 Law & Contemp. Prob. 243, 251-52 (2002).
In accordance with the weight of authority, as well as Professor Friedman's analysis, we believe that the better view is to treat the child's age as one of the objective circumstances to be taken into account in determining whether a reasonable person in his or her circumstances would have understood that their statement would be available for use at a later trial.
Like other courts which have considered the issue of what makes a statement testimonial, we believe it would be fruitless to attempt to provide an exhaustive list of factors which may potentially enter into the "testimonial" calculus and the weight to be accorded them. See, e.g., United States v. Summers, 414 F.3d 1287, 1302 (10th Cir.2005) ; T.T., 351 Ill.App.3d at 991-92, 287 Ill.Dec. 145, 815 N.E.2d 789 ("Vague standards are manipulable, and * * * if the State could simply use the surrogate testimony of social workers provided that certain formalities — like a scheduled interview at a government office in a question-and-answer format — were absent, then prosecutors would have less motivation to acclimate the child witness to the courtroom setting"). As Crawford and Davis make clear, this determination must be made on a case-by-case basis. Each case must be resolved on its own merits, and a pertinent factor in one case may not carry much weight in another. In this case, because the parties differ on the issue of whether the age of a child declarant may ever be taken into consideration, and because there is a divergence of opinion on the topic amongst the courts of our sister states, we have held that factor may be considered. This is not to say that age will necessarily be determinative in every case. We have simply held that it is among the circumstances potentially relevant to evaluating whether the objective circumstances of the statement would have led a reasonable declarant to understand that his or her statement could be used in a subsequent prosecution of the defendant.
We turn now to an examination of the hearsay statements at issue in the case at bar to determine whether they are testimonial. As noted, M.M.'s statements to three persons were admitted at trial. Those individuals were Joan G., M.M.'s mother; Ann Grote, a nurse/clinical specialist in charge of the child-abuse team at Hope Children's Hospital; and Perry Yates, the school social worker at Lawn Manor Primary Center, where M.M. was in kindergarten in 1998-99. We first review the circumstances under which the statements were made.
On January 13, 1999, Brenda Galete drove M.M. to Joan's place of employment. Galete went inside to get Joan, and told her that M.M. was to be taken to the hospital. Joan went with Galete to the car, sat next to M.M., put her arm around her, and asked her what was wrong. M.M. told Joan that "Bob had done something to her." During the drive to the hospital, M.M. described the incident of sexual abuse. She also told Joan that her assailant had told M.M. he would hurt her if she told her mother about what had happened.
When they arrived at Christ Hospital, Joan and M.M. went to the emergency room. While they were there, Ann Grote, the clinical specialist in charge of the hospital's child-abuse team, came to the emergency room and met Joan and M.M. The responsibilities of Grote's position were to receive all referrals regarding any type of abuse, "whether it be physical or sexual abuse." Because there was potentially a two- to three-hour wait before M.M. could be examined, Grote took Joan and M.M. to her office in another building where Grote could speak to M.M., then bring M.M. back to the emergency room so she could be examined.
Joan waited in a nearby area while Grote took M.M. into a playroom that was connected to Grote's office. Grote began her interview with M.M. by asking her why she had come to the hospital. M.M. said "she was there because of what Bob had done to her." M.M. described for Grote the incident of sexual abuse that she had previously described to her mother. M.M. told Grote that she "didn't want to do it" but that Bob "made her do it." M.M. added that she "didn't like" Bob and she was "mad[] at him." At the conclusion of this interview, Grote took Joan and M.M. back to the emergency room, where M.M. was then examined by a doctor. After bringing M.M. back to the emergency room, Grote informed Joan that she would file a report, contact the police, and verify that the Department of Children and Family Services was notified.
The next day, January 14, 1999, Perry Yates, the social worker at M.M.'s school, received a telephone call from Joan G. Yates testified that the information Joan gave him "put [him] in a position where [he] had to make a mandated report based on the information that the mother had given [him]." Yates testified that he "had a legal obligation to check it out." Yates received Joan's permission to speak to M.M. individually, and he brought M.M. to his office, where he interviewed her. Yates began the interview by asking M.M., "[W]hat can you tell me about Robert Stechly[?]" M.M. then described essentially the same incident of sexual abuse that she had recounted for Grote and her mother.
Later that same day, at about 3 p.m., M.M. returned to the hospital for another interview with Grote. This interview was observed by an assistant State's Attorney and two police officers, who were seated behind a one-way mirror. Grote began the interview by asking M.M. if she could remember why she had come to the hospital the previous day. M.M. "said she could remember[;] it was because of what Bob had done to her." M.M. again described the incident of sexual abuse. At trial, Grote was asked if M.M. told her how she felt at the time of the incident. Grote stated: "She said she was mad, she said that she didn't like it, she didn't want to do it, but he told her she had to." At Grote's suggestion, M.M. took two anatomically correct dolls, undressed the male doll, and demonstrated the actions she had told Grote that defendant had forced her to perform.
We will begin with the clearest case: M.M.'s second conversation with Grote. At this time M.M. had already told Grote what happened. Based on what she had heard, Grote contacted the police department, and then conducted a second interview to review the same facts for the benefit of two police officers standing hidden behind a one-way mirror. The objective circumstances leave no room for doubt that at this time Grote was acting on behalf of the police in order to gather information for possible prosecution. Under Davis, this was unquestionably a testimonial statement.
We believe that M.M.'s first conversation with Grote and her conversation with Yates were also testimonial statements under Davis. Both Grote and Yates conducted their interviews of M.M. after Joan apprised them of some of what M.M. had told her — in other words, once they were aware that abuse may have occurred. Although Grote was a registered nurse, nothing in the record indicates that she conducted the first interview for purposes of treatment in this case. Grote did testify that one of her responsibilities was making sure that the appropriate follow-up medical procedures took place with the alleged child abuse victims in the hospital, but she also testified that in this case she told Joan after the first interview only that she would be notifying "the appropriate authorities," i.e., the Department of Children and Family Services and the police. Grote testified further that after the second interview, she did not know what happened with M.M., because her "piece was done." Yates testified that he only initiated the conversation because what Joan told him led him to conclude that he "had to make a mandated report" and "had a legal obligation to check it out." The record does not reflect any action by either Grote or Yates subsequent to their interviews other than informing the Department and/or the police of what they had learned. We believe that the objective circumstances indicate that the primary purpose of these interviews was to gather information for purposes of an investigation and possible prosecution of criminal conduct.
We do not hold that any person who conducts an interview in order to gather information for a possible future prosecution is necessarily acting as an "agent of law enforcement" at the time, such that his acts may be said to be "acts of the police." In this case, however, we believe that Grote and Yates were so acting. It is significant that in this case neither Grote nor Yates appears to have taken any action as a result of their interviews of M.M. other than contacting the authorities — the Department of Children and Family Services, law enforcement, or both. Their interviews appear to have been for the sole purpose of gathering information in order to pass it along to the authorities.
Our conclusion is supported by the fact that at the time of their interviews of M.M., Grote and Yates were both "mandated reporters." See 325 ILCS 5/4 (West 2000) (mandated reporters include, inter alia, any "hospital administrator and personnel engaged in examination, care and treatment of persons," "school personnel," "registered nurse," and "social worker"). This means that by virtue of their positions, they both had a legal obligation, under penalty of criminal law, to report to the Department of Children and Family Services once they had reasonable cause to believe that a child known to them in their professional capacity was abused or neglected. 325 ILCS 5/4 (West 2000). Mandated reporters are required to "testify fully in any judicial proceeding resulting from such report, as to any evidence of abuse or neglect, or the cause thereof." 325 ILCS 5/10 (West 2000). Moreover, the Department is required, "to the fullest extent possible," to
"cooperate with and * * * seek the cooperation and involvement of all appropriate public and private agencies, including * * * law enforcement agencies, [and] courts of competent jurisdiction * * *." 325 ILCS 5/7.1 (West 2000).
Thus, by virtue of their status as mandated reporters both Yates and Grote were legally required to report to the Department and then to testify, and the Department itself was also required to cooperate with law enforcement. These facts substantially buttress our conclusion that in this case, in conducting their interviews of the victim M.M., Grote and Yates were acting as agents of law enforcement for purposes of confrontation clause analysis. See T.T., 351 Ill.App.3d at 989-91, 287 Ill.Dec. 145, 815 N.E.2d 789 (taking into account statutes governing mandated reporters in holding that child's statement to social worker was testimonial for purposes of confrontation clause analysis). We are not holding that every mandated reporter acts as an agent of law enforcement in every interview, but merely that Grote's and Yates' status as mandated reporters supports our conclusion in this case based on the fact that their actions appear to have had no other purpose than to obtain information to pass on to the authorities.
However, M.M.'s statement to her mother is of a different nature. First, Joan was not acting as an agent of law enforcement. According to Joan's testimony, at the time this statement was made, Joan had only been told that her daughter needed to go to the hospital. Joan immediately left work and was sitting next to M.M. in the backseat of the car on the way there. When Joan asked M.M. "what happened," she surely would only have feared hearing how her child had been injured. Nothing suggests that Joan would have had any hint that M.M.'s response would recount a criminal act. Even assuming that Galete's contrary version of events was true, and that Galete did tell Joan of M.M.'s allegation of abuse before the ride to the hospital, we believe Joan's primary motivation was simple parental concern. On the facts of this case, Joan was in no way acting on behalf of law enforcement, attempting to gather evidence for a future prosecution.
Accordingly, we must look at the statement from the perspective of M.M., the declarant. M.M. was five years old. She was sitting next to her mother in the backseat of a car on a ride to a hospital. Her mother asked her what had happened. From M.M.'s perspective, she was explaining to her mother the reason for the trip to the hospital. We see nothing in these circumstances to support the conclusion that an objective declarant in M.M.'s position would have anticipated that her statement to her mother likely would be used in prosecution. We note that it is also debatable whether M.M.'s statement in this context was infused with sufficient solemnity to be deemed testimonial. See Davis, 547 U.S. at ___, 126 S.Ct. at 2276, 165 L.Ed.2d at 240 ; Davis, 547 U.S. at ___, 126 S.Ct. at 2282-83, 165 L.Ed.2d at 246-47 (Thomas, J., concurring in the judgment and dissenting in part) .
Accordingly, M.M.'s two statements to Grote and her statement to Yates were testimonial. Because defendant had no prior opportunity to cross-examine M.M. with regard to these statements, their admission was a violation of the confrontation clause under Crawford. M.M.'s hearsay statement to her mother, on the other hand, was not testimonial. Accordingly, the admission of this statement was not error under Crawford.
We feel compelled once more to note the limited extent of our holding. We do not conclude in this case that statements made to family members can never be testimonial, nor that statements given to social workers or medical personnel or other mandated reporters are always testimonial. Instead, we decide merely that, under the circumstances in this case, M.M.'s hearsay statements to Grote and Yates were testimonial, and her statement to her mother was not.
The State protests that neither Grote nor Yates, the school social worker, functions as "an arm of the prosecution" merely because they are mandated reporters, and calls our attention to In re C.J., 166 Ill.2d 264, 209 Ill.Dec. 775, 652 N.E.2d 315 (1995) . The State argues that we there clearly held that Department employees are not state agents simply because they are required to investigate suspected abuse and neglect. The State calls our attention to the specific statement that we "reject out of hand any notion that [Department] child protective service investigators, simply by virtue of their mandate to investigate reports of suspected child abuse and neglect, are a prosecutorial arm of the State." C.J., 166 Ill.2d at 269, 209 Ill.Dec. 775, 652 N.E.2d 315 .
The case is distinguishable. First, in this case, we have not found Grote and Yates to have been acting on behalf of law enforcement merely based on their status as mandated reporters. Our conclusion is instead based primarily on the circumstances surrounding the statements they took from M.M., especially the fact that they appear to have done nothing as a result of taking those statements other than contacting the authorities. The fact that they are mandated reporters merely buttresses our conclusion. Moreover, C.J. was an appeal from a circuit court ruling dismissing a delinquency petition because a Department investigator had destroyed potentially exculpatory material. We held it would be entirely unfair to impute responsibility for the destroyed evidence to the State's Attorney, especially in light of the fact that there was "no evidence to support the conclusion that the [Department] investigator here functioned, intentionally or otherwise, as an aid in the prosecution of this case." C.J., 166 Ill.2d at 270, 209 Ill.Dec. 775, 652 N.E.2d 315 . The situation here is different — in this case the question is whether it is fair for a criminal defendant to be tried based on hearsay statements without the opportunity to confront the declarant, when the persons taking the statements took no action other than to pass them on to the authorities, and moreover the persons taking the statements had a legal obligation to transmit them to the Department (325 ILCS 5/4 (West 2000)) and subsequently to testify in any case arising therefrom (325 ILCS 5/10 (West 2000)), and the Department had a legal obligation to cooperate with law enforcement agencies to the fullest extent possible (325 ILCS 5/7.1 (West 2000)). In addition to the statement from C.J. to which the State draws our attention, we also said in that case that "where DCFS acts at the behest of and in tandem with the State's Attorney, with the intent and purpose of assisting in the prosecutorial effort, DCFS functions as an agent of the prosecution. " (Emphasis added.) C.J., 166 Ill.2d at 270, 209 Ill.Dec. 775, 652 N.E.2d 315, citing People v. Robinson, 157 Ill.2d 68, 191 Ill.Dec. 107, 623 N.E.2d 352 (1993) (imputation of such knowledge requires an individualized focus on the factual circumstances). We do not believe that the framers intended to permit the government to evade the requirements of the confrontation clause by the simple expedient of placing responsibility for investigation with a separate agency of government with a legal responsibility to cooperate with law enforcement.
The State also argues that, if the statements at issue in the case at bar are deemed testimonial, the admission of these statements was harmless beyond a reasonable doubt. We disagree.
Crawford violations are subject to harmless-error analysis. People v. Patterson, 217 Ill.2d 407, 299 Ill.Dec. 157, 841 N.E.2d 889 (2005) . The test is whether it appears beyond a reasonable doubt that the error at issue did not contribute to the verdict obtained. Patterson, 217 Ill.2d at 428, 299 Ill.Dec. 157, 841 N.E.2d 889 . There are
"three different approaches for measuring error under this harmless-constitutional-error test: (1) focusing on the error to determine whether it might have contributed to the conviction, (2) examining the other evidence in the case to see if overwhelming evidence supports the conviction, and (3) determining whether the improperly admitted evidence is merely cumulative or duplicates properly admitted evidence." Patterson, 217 Ill.2d at 428, 299 Ill.Dec. 157, 841 N.E.2d 889, citing People v. Wilkerson, 87 Ill.2d 151, 157, 57 Ill.Dec. 628, 429 N.E.2d 526 (1981) .
Under none of the three approaches can the error in this case be considered harmless. The evidence in question consists of several adults who were unacquainted or only slightly acquainted with M.M. testifying as to her out-of-court statements regarding the precise conduct at issue. The statements were quite clear and were relatively consistent with each other and with the statement M.M. made to her mother. This was strong evidence which a fact finder would surely have taken into account. As we have noted, "[t]he statements of a victim identifying her attacker and describing the attack are extremely powerful evidence of a defendant's guilt. It would be difficult to argue that such statements did not contribute to [a guilty] verdict." Patterson, 217 Ill.2d at 436, 299 Ill.Dec. 157, 841 N.E.2d 889 . Nor is it fair to characterize the improperly admitted evidence as "merely cumulative" of Joan's testimony. It is true that M.M.'s two statements to Grote and statement to Yates were substantially similar to her statement to Joan. However, the fact that the testimony was coming from adults who had no personal stake in the matter at hand, no acquaintance with Joan or defendant, and little or no acquaintance with M.M., and the strong similarity of the statements, gave them a power beyond simple duplication of Joan's testimony as to what her daughter told her. Additionally, both Grote and Yates testified as to M.M.'s demonstration of the conduct at issue through the use of dolls, another fact reinforcing the believability of those statements and distinguishing them from M.M.'s statement to Joan. Moreover, and especially critically, the conversation between M.M. and Yates began with Yates simply asking M.M. what she could tell him "about Robert Stechly." That M.M. recounted the events in question in response to a generic query about the defendant is crucial evidence. The defense at trial was not that there was a question whether M.M. was the victim of abuse — defendant's expert agreed that she most likely was — but that there was a reasonable doubt as to the identity of her abuser. The improperly admitted statements cannot fairly be considered to be merely duplicative of properly admitted evidence.
This leaves the question whether the properly admitted evidence in the case constitutes "overwhelming evidence support[ing] the conviction," the sole remaining way in which this testimony might be found not to have contributed to the finding of guilt, and therefore be deemed harmless. Here we part company with the dissent. The dissent would find the error harmless because the properly admitted evidence, specifically the testimony of Joan, the testimony of Grote, and defendant's confession, is overwhelming. The dissent relies principally on defendant's statement to the police as well as Joan's testimony that in the car on the way to the hospital M.M. told her that "Robert Stechly" was the person who abused her. The dissent also notes that the abuse was described nearly identically in Galete's and Joan's trial testimony regarding what M.M. told them and in defendant's statement to the police. Examination of the record reveals some troubling inconsistencies in this evidence, however, which lead us to conclude that the evidence was not so overwhelming as to render it clear beyond a reasonable doubt that the constitutional error was harmless.
For example, although M.M.'s description of the abuse to Galete was very similar to what the child told her mother, there is a reason that Galete was a witness for the defense, rather than for the prosecution. Specifically, Galete testified that Bob Reilly, the victim's cousin, frequently babysat the victim, contradicting Joan's testimony that he never did so. Galete testified that M.M. only identified the abuser as "Bob," and Galete further testified that she had informed the police that she believed that people other than defendant, including Joan, the child's mother, had sexually assaulted her. Thus not only did Galete directly contradict Joan's testimony on the key point of whether Bob Reilly had babysat M.M. — Joan testified that he had never done so — Galete also implicitly made clear that she believed that M.M. had not told the complete truth about her abuse.
Moreover, although Joan testified that on the date that the victim was taken to the hospital Galete refused to tell her what was wrong, Galete testified that she did tell Joan that the victim had been sexually molested and that Joan "really didn't show any feeling in response." Finally, Galete testified that she did not hear any conversation between the victim and her mother in the car on the way to the hospital. Although she admitted that she was in the front seat and the victim and her mother were in the back, this does call into question the foundation of one of the primary pieces of competent evidence on which the dissent relies, namely, Joan's testimony regarding her conversation with M.M. on the way to the hospital. Galete's father, who was driving the car to the hospital, also testified that he heard no conversation between Joan and M.M. Galete's testimony that she did tell Joan about the abuse before they drove M.M. to the hospital is also supported by the testimony of Grote. Grote testified that when M.M. was brought to the hospital Joan recounted that M.M. had told Galete about having been abused. Grote testified that Joan did not tell her that M.M. had directly spoken to Joan about the matter, even though that conversation in the car would have occurred only minutes before. Joan never told Grote that she had spoken with M.M. in the car.
Moreover, Joan's testimony that M.M. identified her assailant as "Robert Stechly" — using not only defendant's last name, but his full first name — was in direct conflict with Joan's testimony at the section 115-10 hearing. There, Joan testified only that the child told her "Bob" had assaulted her. Joan testified four separate times on direct examination as to what M.M. told her "Bob" had done, and on cross-examination, engaged in the following exchange:
"Q. [defense counsel:] Now, in the car when you were on the way to the hospital, she told you what had happened, details of the incident?
A. Yes.
Q. Did she tell you who?
A. She told me in the back of the car that day.
Q. Who it was?
A. Who did that, yes.
Q. Who had sexual contact?
A. Yes.
Q. And she said Bob?
A. Yes.
Q. And you understood that to be Bob Stechly?
A. Yes sir." (Emphases added.)
This calls into serious question Joan's trial testimony that the child referred to defendant by his full first and last names. In this regard it is also noteworthy that no other witness ever testified that the child used defendant's full name, even though it would arguably have been more logical for the child to identify her assailant by his full name to a stranger, rather than to her mother, who was the defendant's girlfriend.
Defendant's confession, it is true, is surely strong evidence against him. However, at trial, defendant recanted his confession, claiming that he only made it because he was tired and believed that the truth would later come out. He introduced expert testimony to the effect that he was unable to understand his Miranda rights. In argument at defendant's bench trial, defense counsel noted, "I think, if you listen to him on the stand, he does have, how should I say, he does suffer from a mental disability, unfortunately." The members of this court are, of course, wholly unable to evaluate the accuracy of this description, as we were not present at defendant's trial to observe his demeanor, but we note that the State did not dispute this characterization in its argument in response.
The dissent implies a great deal of skepticism for defendant's recantation, but whether or not we personally find the recantation believable on the cold record before us is not the question we must answer, as we are not members of defendant's jury. The question before us is: Was the properly admitted evidence against defendant — consisting primarily of his confession, and the testimony of the mother and Galete — such compelling and overwhelming evidence of guilt that it is clear beyond a reasonable doubt that the improperly admitted evidence made no difference to the fact finder? That evidence being the testimony of impartial, neutral adults that the child told the exact same story as she told her mother three more times, demonstrating the conduct at issue with dolls — and that one of these recountings of what transpired was in response to the general question "what can you tell me about Robert Stechly"?
We must answer this question in the negative. The child's consistent repetition of the story strongly reinforced its believability. This reinforcement could easily have overridden any doubt which might have arisen in light of the significant conflicts and inconsistencies between Galete's testimony, the testimony of the victim's mother, and defendant's confession. The fact that M.M.'s statement to Yates was the product of a generic inquiry regarding defendant is evidence that it would be truly impossible for a fact finder not to have taken into account in this trial which turned on the identity of M.M.'s abuser. We cannot conclude that the properly admitted evidence was so overwhelmingly in favor of guilt that it is clear beyond a reasonable doubt that the child's repetition of the story on three separate occasions played no part in the fact finder's conclusion.
Our conclusion that the evidence against defendant was not overwhelming is buttressed by the fact that the jurors at defendant's first trial were unable to agree on a verdict. See People v. Gibson, 136 Ill.2d 362, 382-83, 144 Ill.Dec. 759, 556 N.E.2d 226 (1990) ("The jurors at the defendant's first trial were unable to agree on a verdict in the case, and the resulting mistrial illustrates fully the closeness of the evidence in the case"). The dissent argues that it is inappropriate to consider the fact that defendant's jury was unable to reach a verdict, suggesting that to do so is equivalent to the approach taken by the appellate court in People v. Nitz, 219 Ill.2d 400, 302 Ill.Dec. 418, 848 N.E.2d 982 (2006) . The situation in Nitz is not even remotely similar to the case at bar. There, the appellate court analyzed a jury's mix of guilty and not-guilty verdicts and "speculated" as to how the jury might have ruled on a question with which it was not presented after "purporting to read the minds of the trial jurors." Nitz, 219 Ill.2d at 413-14, 302 Ill.Dec. 418, 848 N.E.2d 982 . Here, by contrast, we are making the entirely unremarkable assertion that the fact that a jury of defendant's peers was unable to reach a verdict as to his guilt tends to show that the evidence against him was not utterly overwhelming. This fact is especially pertinent in light of the fact that the jury heard and took into account the strong and compelling evidence that we have now concluded was improperly admitted. Even with that evidence before it, the jury could not reach a verdict. Thus, it is a fair inference that the properly admitted evidence may not have been entirely overwhelming. Nor does the riposte that the circuit court was able to reach a finding carry much weight, in light of the fact that like the jury, the court had before it and considered the evidence we have now found inadmissible. In this case it would be inappropriate to apply the presumption that in a bench trial judges base their findings only on competent evidence ( People v. Todd, 178 Ill.2d 297, 330, 227 Ill.Dec. 516, 687 N.E.2d 998 (1997) ; People v. Tye, 141 Ill.2d 1, 26, 152 Ill.Dec. 249, 565 N.E.2d 931 (1990) ), in light of the fact that at the time of defendant's trial, Crawford had not yet been decided and thus the statements to Grote and Yates were competent, admissible evidence so far as the trial judge knew.
We cannot conclude beyond a reasonable doubt that the admission of these hearsay statements did not contribute to the finding obtained. The properly admitted evidence was certainly sufficient to sustain defendant's conviction, however, so there is no double jeopardy bar to retrying defendant on these charges. People v. Daniels, 187 Ill.2d 301, 310, 240 Ill.Dec. 668, 718 N.E.2d 149 (1999) . If the evidence is as overwhelming as the dissent believes, defendant will very likely be convicted once again. Moreover, defendant's convictions may be upheld without a retrial if on remand the circuit court concludes that defendant lost his confrontation rights pursuant to the doctrine of forfeiture by wrongdoing. But unless that doctrine is applicable, the admission of these statements was error of sufficient severity as to defy a characterization of harmlessness.
Accordingly, we remand to the circuit court for a hearing on forfeiture by wrongdoing. In this hearing, the State's burden of proof is a preponderance of the evidence. See Davis, 547 U.S. at ___, 126 S.Ct. at 2280, 165 L.Ed.2d at 244 (and authorities cited therein). The circuit court may take into consideration "`hearsay evidence, including the unavailable witness's out-of-court statements.'" Davis, 547 U.S. at ___, 126 S.Ct. at 2280, 165 L.Ed.2d at 244, quoting Edwards, 444 Mass. at 545, 830 N.E.2d at 174 . The question is whether defendant sought "to undermine the judicial process by procuring or coercing silence from" M.M. Davis, 547 U.S. at ___, 126 S.Ct. at 2280, 165 L.Ed.2d at 244 . If the court concludes that defendant did forfeit his confrontation clause claim by wrongdoing, then the conviction and sentence may be reinstated; otherwise, defendant must receive a new trial. At that trial, the statements to Yates and Grote must be excluded from evidence unless M.M. testifies.
Having concluded that M.M.'s hearsay statement to her mother is not testimonial, we must address defendant's argument that this statement did not meet the requirements of section 115-10 of the Code of Criminal Procedure (725 ILCS 5/115-10 (West 1998)), which is the statutory hearsay exception for sexual abuse victims under the age of 13. Under section 115-10, a child's out-of-court complaints of a sexual offense may be admitted if (1) the time, content, and circumstances of the statement provide sufficient safeguards of reliability, and (2) the child either (a) testifies at the proceeding, or (b) is unavailable as a witness and there is corroborating evidence of the act which is the subject of the statement. In the case at bar, the trial court found that the time, content, and circumstances of M.M.'s hearsay statements, including her statement to her mother, provided sufficient safeguards of reliability to be admissible. The trial court also found that M.M. was legally unavailable for trial.
Before this court, defendant argues that the State failed to meet its burden of establishing the reliability of M.M.'s hearsay statements, and the circuit court therefore erred in admitting these statements. Defendant also argues that the circuit court erred in declaring M.M. unavailable to testify. The appellate court below affirmed the circuit court's findings as to reliability and availability. We agree with the appellate court that, with regard to M.M.'s statement to her mother, the reliability and unavailability requirements of section 115-10 were met. A trial court's rulings on evidentiary matters will not be reversed absent a clear abuse of discretion. People v. Hall, 195 Ill.2d 1, 20-21, 252 Ill.Dec. 552, 743 N.E.2d 126 (2000) . Fear and youth are factors to be considered in determining whether a child witness is unavailable. T.T., 351 Ill.App.3d at 984, 287 Ill.Dec. 145, 815 N.E.2d 789 . Reliability is judged based on the totality of the circumstances ( Wright, 497 U.S. at 819-20, 110 S.Ct. at 3148-49, 111 L.Ed.2d at 654-55), but relevant factors include consistent repetition, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. People v. McMillan, 231 Ill.App.3d 1022, 1026, 173 Ill.Dec. 949, 597 N.E.2d 923 (1992) . There was ample evidence supporting the circuit court's rulings regarding reliability and unavailability, and we find no abuse of discretion in the circuit court's ruling admitting M.M.'s statement under section 115-10.
The partial concurrence argues that the circuit court abused its discretion in finding M.M. unavailable, relying on People v. Johnson, 118 Ill.2d 501, 115 Ill. Dec. 384, 517 N.E.2d 1070 (1987) . That case is distinguishable in critical respects. First, Johnson involved only Supreme Court Rule 414, a rule of general application to all criminal cases. In contrast, section 115-10 deals specifically with "the difficulty in convicting persons accused of sexually assaulting young children." People v. Holloway, 177 Ill.2d 1, 9, 224 Ill.Dec. 498, 682 N.E.2d 59 (1997) . The Johnson court expressly limited its holding importing the standards of Federal Rule 804 to proceedings involving Rule 414: "the mere unwillingness of an otherwise available witness to testify simply does not rise to the high level of the Federal Rule 804 standards. Hence, it cannot constitute excusable unavailability for purposes of our Rule 414. " (Emphasis omitted and added.) Johnson, 118 Ill.2d at 509-10, 115 Ill.Dec. 384, 517 N.E.2d 1070 . Neither Johnson, nor either of the post- Johnson cases on which the partial concurrence relies, involved section 115-10. See People v. Caffey, 205 Ill.2d 52, 100-01, 275 Ill.Dec. 390, 792 N.E.2d 1163 (2001) (adult witness asserting privilege); People v. Ramey, 152 Ill.2d 41, 70-73, 178 Ill.Dec. 19, 604 N.E.2d 275 (1992) (adult witness asserting lack of memory). This court has never invoked Federal Rule of Evidence 804 or relied on Johnson in reviewing the admission of statements pursuant to section 115-10. Indeed, Johnson could not have been intended to apply to statements admitted pursuant to section 115-10 because at the time Johnson was decided, section 115-10 did not permit introduction of the out-of-court statement of an "unavailable" child witness. People v. Rocha, 191 Ill.App.3d 529, 537, 138 Ill.Dec. 714, 547 N.E.2d 1335 (1989) .
Moreover, this court in Johnson invited legislative action to address reluctant child witnesses, thus suggesting that a specific statute to address that situation might merit a different result:
"[W]e feel compelled to acknowledge the special difficulties presented by cases such as these, where the witness in question is a young child whose fear and reticence is probably nonvolitional and hence understandable. However, it is our view that any attempts to resolve these difficulties must be initiated by the legislature." Johnson, 118 Ill.2d at 510, 115 Ill.Dec. 384, 517 N.E.2d 1070 .
As our appellate court has noted, the amendment to section 115-10 to permit the introduction of children's out-of-court statements when the child is unavailable appears to be precisely the legislative resolution for which this court called in Johnson. Rocha, 191 Ill.App.3d at 537, 138 Ill.Dec. 714, 547 N.E.2d 1335 . In cases involving section 115-10, our appellate court has declined to apply the broad Johnson holding that unwillingness can never constitute unavailability. See, e.g., People v. Coleman, 205 Ill.App.3d 567, 582-83, 150 Ill.Dec. 883, 563 N.E.2d 1010 (1990) ; Rocha, 191 Ill.App.3d at 536-37, 138 Ill.Dec. 714, 547 N.E.2d 1335 . This holding finds support in decisions of this court which have distinguished section 115-10 from other, analogous statutes. See People v. Bowen, 183 Ill.2d 103, 114, 232 Ill.Dec. 800, 699 N.E.2d 577 (1998) (" Bastien is not dispositive of this case, because of fundamental differences in both the provisions and purposes of section 115-10 and former section 106A-2"). In the context of child witnesses, numerous other jurisdictions have concluded that unwillingness or inability to testify should constitute unavailability. See Rocha, 191 Ill. App.3d at 537-38, 138 Ill.Dec. 714, 547 N.E.2d 1335, and cases cited therein. Our appellate court has concluded that by the amendment to section 115-10 the legislature intended "to include within the meaning of `unavailable' witnesses those children who are unable to testify because of fear, inability to communicate in the courtroom setting, or incompetence." Rocha, 191 Ill.App.3d at 539, 138 Ill.Dec. 714, 547 N.E.2d 1335 . See also T.T., 351 Ill.App.3d at 984, 287 Ill.Dec. 145, 815 N.E.2d 789 . We agree with these opinions. Notwithstanding our holding in Johnson that unwillingness to testify cannot constitute unavailability to testify for purposes of Rule 414, we believe that in the separate specific context of section 115-10, unavailability includes those child witnesses who are unable to testify because of fear.
The circuit court should not make an unavailability determination lightly, of course, but that brings us to the second critical difference between this case and Johnson. There, the circuit court received no expert testimony or evidence as to the child's unavailability. Indeed, the circuit court never even made a finding that the children were unavailable to testify. In the instant case, by contrast, Machonkin testified as an expert witness at the availability hearing. She stated that in her professional opinion, forcing M.M. to testify would inflict upon her "trauma symptoms." It is true that Machonkin acknowledged that there were steps the court could take to attempt to decrease the likelihood that the child would suffer psychological harm. However, she stated that it could take up to a year for such techniques to work and they might never work, a distinct possibility in light of the fact that Machonkin herself had never been able to persuade the victim to discuss what had happened.
Under these circumstances, we cannot find the circuit court to have abused its discretion in finding M.M. unavailable to testify.
We agree with the appellate court that the circuit court's decision that M.M.'s hearsay statement to her mother was admissible under section 115-10. However, we disagree with the appellate court that the circuit court properly found M.M.'s hearsay statements to Grote and Yates were admissible. Because the admission of the statements to Grote and Yates was not harmless error, we reverse the appellate court's judgment affirming defendant's conviction and sentence. This cause is remanded to the circuit court for a hearing on the issue of forfeiture by wrongdoing and for further proceedings in conformity with this opinion.
Appellate court judgment reversed; cause remanded with directions.
In my opinion, the statutory hearsay exception contained in section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 1998)), was not satisfied because the evidence presented at the hearing did not establish that M.M. was unavailable to testify. M.M.'s hearsay statements should have been excluded on that basis.
Moreover, in addressing the confrontation clause claim, I believe the plurality applies an incorrect standard for determining whether an out-of-court statement by a child declarant is testimonial. I would hold that the critical inquiry in determining whether a statement is testimonial is whether a reasonable adult in the declarant's position would have anticipated that his or her statement likely would be used in a criminal prosecution. A reasonable adult in M.M.'s position would have believed her statements to her mother, the registered nurse, and the school social worker identifying defendant as the perpetrator would be used in a prosecution against defendant. Thus, M.M.'s statements to each of those people were testimonial and should not have been admitted without satisfying the requirements of the confrontation clause.
In my view, the plurality's analysis of both the section 115-10 issue and the confrontation clause claim is faulty. I, however, agree with the plurality's ultimate holding on the confrontation clause claim that defendant's convictions must be reversed and the cause remanded for a hearing on forfeiture by wrongdoing. Accordingly, I concur in the judgment with respect to the confrontation clause claim and respectfully dissent on the section 115-10 issue.
The threshold issue in this case is whether M.M.'s statements are admissible under the statutory hearsay exception in section 115-10. See People v. Lee, 214 Ill.2d 476, 482, 293 Ill.Dec. 267, 828 N.E.2d 237 (2005) (courts should avoid addressing a constitutional question if a case can be decided on other grounds). Under section 115-10, a child's out-of-court statements concerning a sexual offense are admissible if: (1) there are sufficient safeguards of reliability; and (2) the child either testifies or is unavailable to testify and there is corroborating evidence of the act that is the subject of the statement. 725 ILCS 5/115-10(b) (West 1998).
Here, the plurality has failed to apply this court's established precedent to the unavailability determination. This court's decision in People v. Johnson, 118 Ill.2d 501, 115 Ill.Dec. 384, 517 N.E.2d 1070 (1987), as well as subsequent cases relying on Johnson, strongly support a finding that the circuit court abused its discretion in finding M.M. unavailable to testify.
In Johnson, the defendant was charged with aggravated indecent liberties with a child. The trial court ordered the testimony of the five-year-old victim and her seven-year-old brother to be recorded on videotape outside the presence of the jury. Johnson, 118 Ill.2d at 505, 115 Ill.Dec. 384, 517 N.E.2d 1070 . During her testimony, the victim became frightened and stopped speaking. At that point, the trial court granted the State's motion to remove defendant from the courtroom during her testimony. Johnson, 118 Ill.2d at 505, 115 Ill.Dec. 384, 517 N.E.2d 1070 . Defendant was allowed to view the testimony on a video monitor outside the courtroom. Johnson, 118 Ill.2d at 505, 115 Ill.Dec. 384, 517 N.E.2d 1070 . After defendant was removed, the parties completed the direct, cross, and redirect examination of the victim. Johnson, 118 Ill.2d at 505, 115 Ill. Dec. 384, 517 N.E.2d 1070 . The testimony of the victim's brother was recorded outside the presence of the jury, but with defendant present. Johnson, 118 Ill.2d at 506, 115 Ill.Dec. 384, 517 N.E.2d 1070 .
The appellate court held that the videotaping procedure was authorized under Supreme Court Rules 414 and 206(f) (87 Ill.2d Rs. 414, 206(f)). Johnson, 118 Ill.2d at 507, 115 Ill.Dec. 384, 517 N.E.2d 1070 . Rule 414 allows the trial court to order a deposition for use at trial in criminal cases when a substantial possibility exists that the testimony will be "`unavailable at the time of hearing or trial.'" Johnson, 118 Ill.2d at 507, 115 Ill.Dec. 384, 517 N.E.2d 1070, quoting 87 Ill.2d R. 414(a). Thus, the critical issue in Johnson was whether the children were "unavailable" to testify within the meaning of Rule 414. Johnson, 118 Ill.2d at 508, 115 Ill.Dec. 384, 517 N.E.2d 1070 .
This court rejected the appellate court's determination that the children were unavailable to testify because the trial court believed they would be fearful or unable to speak in front of the jury. Johnson, 118 Ill.2d at 508, 115 Ill.Dec. 384, 517 N.E.2d 1070 . This court held that unavailability "is a narrow concept, subject to a rigorous standard." Johnson, 118 Ill.2d at 509, 115 Ill.Dec. 384, 517 N.E.2d 1070 . The court looked to Federal Rule of Evidence 804 for examples of sufficient reasons for finding a witness unavailable. Under Federal Rule 804, a witness may be declared unavailable due to privilege, persistent contemptuous refusal to testify, lack of memory, death, or illness. Johnson, 118 Ill.2d at 509, 115 Ill.Dec. 384, 517 N.E.2d 1070 . Mere unwillingness or reluctance to testify does not constitute excusable unavailability under Federal Rule 804. Johnson, 118 Ill.2d at 509, 115 Ill.Dec. 384, 517 N.E.2d 1070 . Therefore, this court held that unwillingness to testify cannot be the basis for a finding of unavailability under Supreme Court Rule 414. Johnson, 118 Ill.2d at 509-10, 115 Ill.Dec. 384, 517 N.E.2d 1070 . This court concluded that "a witness' mere reluctance to testify cannot be accepted as a good enough reason to permit the use of out-of-court testimony." Johnson, 118 Ill.2d at 510, 115 Ill.Dec. 384, 517 N.E.2d 1070 .
Subsequent to Johnson, this court has continued to look to Federal Rule of Evidence 804 in determining whether a witness is unavailable to testify. See People v. Caffey, 205 Ill.2d 52, 100-01, 275 Ill.Dec. 390, 792 N.E.2d 1163 (2001) ; People v. Ramey, 152 Ill.2d 41, 70-73, 178 Ill.Dec. 19, 604 N.E.2d 275 (1992) . In this case, however, neither the appellate court nor the plurality has applied our established precedent.
The plurality asserts that Johnson "is distinguishable in critical respects." 225 Ill.2d at 313, 312 Ill.Dec. at 307, 870 N.E.2d at 372. But the distinctions noted by the plurality do not affect the core issue, the meaning of the term "unavailable" in the context of a child witness. Johnson is indistinguishable on that point because it involved whether child witnesses were unavailable to testify. The plurality also states that this court has never relied on Johnson in reviewing the admission of statements under section 115-10. 225 Ill.2d at 313-14, 312 Ill.Dec. at 307, 870 N.E.2d at 372. My research has not revealed any prior decision of this court specifically defining the standard for unavailability under section 115-10. That explains the plurality's reliance only upon appellate court cases for the applicable standard for reviewing the statements at issue here. The fact that this court has not previously relied on Johnson in this context is perhaps understandable given that this court has not addressed the definition of unavailability under section 115-10.
Further, the plurality claims that "the amendment to section 115-10 to permit the introduction of children's out-of-court statements when the child is unavailable appears to be precisely the legislative resolution for which this court called in Johnson. " 225 Ill.2d at 314, 312 Ill.Dec. at 308, 870 N.E.2d at 373. If the legislature intended to redefine unavailability of child witnesses in response to Johnson, however, one would expect an express statement in the statute redefining that term. Yet, there is nothing in section 115-10 indicating that a different standard for unavailability should be used than the one employed by this court in Johnson. See 725 ILCS 5/115-10 (West 1998). The amendment to section 115-10 does not indicate a legislative intent to alter the definition of unavailability in the context of child witnesses. To the contrary, the amendment without any change to the accepted standard in Johnson indicates the legislature's approval of this court's construction of that term.
I would also note that the plurality's ultimate conclusion on the standard to be applied is confusing. The plurality wavers between stating unwillingness to testify is sufficient to constitute unavailability and asserting inability to testify is required. 225 Ill.2d at 314-15, 312 Ill.Dec. at 308, 870 N.E.2d at 373. In fact, the plurality's final word on the matter is "[n]otwithstanding our holding in Johnson that unwillingness to testify cannot constitute unavailability to testify for purposes of Rule 414, we believe that in the separate specific context of section 115-10, unavailability includes those child witnesses who are unable to testify because of fear." (Emphasis in original.) 225 Ill.2d at 315, 312 Ill.Dec. at 308, 870 N.E.2d at 373. The plurality fails to recognize that unwillingness to testify and inability to testify are entirely different standards. In fact, the apparent standard adopted by the plurality of inability to testify caused by fear is consistent with Johnson because it requires more than mere reluctance or unwillingness. See Johnson, 118 Ill.2d at 509-10, 115 Ill.Dec. 384, 517 N.E.2d 1070 .
I would hold that the core rule in Johnson that unwillingness or reluctance to testify cannot constitute unavailability is applicable here. I agree that fear and other similar factors are proper in determining whether a child witness is unavailable to testify. To meet the standard in Johnson, however, there must be an inability to testify because of fear or another factor, not mere reluctance or unwillingness. As this court stated in Johnson, "mere reluctance to testify cannot be accepted as a good enough reason to permit the use of out-of-court testimony." Johnson, 118 Ill.2d at 510, 115 Ill.Dec. 384, 517 N.E.2d 1070 .
Here, the sole witness at the availability hearing was Nancy Machonkin, a clinical child psychologist hired by M.M.'s father to determine the potential impact of testifying upon M.M. As noted in the plurality opinion, Machonkin testified that M.M. expressed unwillingness and reluctance to testify. M.M. told Machonkin that she did not want to talk about the alleged abuse and would not talk about it. 225 Ill.2d at 254, 312 Ill.Dec. at 275, 870 N.E.2d at 340. Although Machonkin testified that M.M. would likely experience anxiety, sleep disturbance, and difficulty in concentrating if she were forced to testify, on cross-examination Machonkin acknowledged that there were steps the court could take to minimize the stress of testifying. Significantly, Machonkin testified that M.M. could possibly become acclimated to the courtroom in as little as two weeks by visiting the courtroom when it was empty, talking to the judge in chambers, and meeting the people who would be asking her questions.
Based on Machonkin's testimony, the trial court found M.M. unavailable to testify. The court noted that M.M. had refused to discuss the incident with Machonkin, and concluded that testifying would subject M.M. to fear and anxiety that would further traumatize her.
The evidence presented at the availability hearing essentially shows that M.M. expressed an unwillingness and reluctance to testify. There was no showing that M.M. was unable to testify because of fear or any other factor. In fact, Machonkin testified that the stress of testifying could potentially be overcome in as little as two weeks by acclimating M.M. to the courtroom and the trial process. Nevertheless, no effort was made to acclimate M.M. All of M.M.'s statements were admitted based solely on the trial court's acceptance of Machonkin's untested conclusion that testifying would subject M.M. to fear and anxiety. In contrast, in a case relied upon heavily by the plurality, the trial court determined that the child witness was unavailable only after she stopped testifying during direct examination, and after the trial court and the prosecutor made extensive efforts to get her to resume testifying. T.T., 351 Ill.App.3d at 985-86, 287 Ill.Dec. 145, 815 N.E.2d 789 .
In this case, M.M. did not testify at trial. I also note that the trial court did not have M.M. testify at the availability hearing to make a direct observation of her reported fear and anxiety. The trial judge did not even speak to M.M. in chambers to observe her demeanor. Instead, the court simply deferred to Machonkin's opinion that it was not in M.M.'s best interest to testify and that she was unavailable, despite the concession that M.M.'s stress could potentially be overcome in as little as two weeks. The evidence here shows a mere untested reluctance to testify. Reluctance alone is insufficient to support a finding of unavailability under the standard adopted by this court in Johnson.
The trial court's ruling was unsupported by application of this court's precedent. In my view, the failure to apply this standard was an abuse of discretion. The statutory hearsay exception in section 115-10 was not satisfied because the evidence does not establish that M.M. was unavailable to testify. M.M.'s hearsay statements should not have been admitted under section 115-10, and the trial court's ruling was prejudicial error. Thus, it is unnecessary to address whether admission of M.M.'s statements violated the confrontation clause. The plurality has, nonetheless, chosen to base its holding on defendant's confrontation clause claim. Therefore, I will also address that issue.
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court reaffirmed the importance of the constitutional right to confrontation. The Court held that a testimonial hearsay statement of a witness who is unavailable to testify may not be admitted against a criminal defendant unless the defendant had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203 . The Crawford Court explicitly declined to give a comprehensive definition of "testimonial statements." See Crawford, 541 U.S. at 68, 124 S.Ct. at 1374, 158 L.Ed.2d at 203 . Nonetheless, as noted by the plurality, many authorities have concluded that the focus in determining whether a statement is testimonial is always on the declarant's intent in giving the statement. 225 Ill.2d at 290-91, 312 Ill.Dec. at 294, 870 N.E.2d at 359. Significantly, "[t]he declarant-centered approach is favored by Professor Richard Friedman of the University of Michigan Law School, one of the scholars whose works Crawford relied upon [citation] `in framing its re-definition of the Confrontation Clause.'" 225 Ill.2d at 291, 312 Ill.Dec. at 295, 870 N.E.2d at 360, quoting United States v. Cromer, 389 F.3d 662, 673 (6th Cir.2004) . Professor Friedman has asserted that "[t]o be testimonial, it must appear from the perspective of the witness that the statement is transmitting information that will, to a significant probability, be used in prosecution." R. Friedman, Grappling With the Meaning of "Testimonial", 71 Brook. L.Rev. 241, 259 (2005). The plurality agrees that the declarant's perspective is the focus in a testimonial analysis outside the context of statements produced by government interrogation. 225 Ill.2d at 292, 312 Ill.Dec. at 295, 870 N.E.2d at 360.
The plurality, however, concludes that the Supreme Court's recent decision in Davis v. Washington, 547 U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), modified or clarified the analysis with respect to statements made to government officials. 225 Ill.2d at 267, 312 Ill.Dec. at 282, 870 N.E.2d at 347. According to the plurality, Davis held that the intent of a police officer in taking a statement determines whether the statement is testimonial. 225 Ill.2d at 267, 312 Ill.Dec. at 282, 870 N.E.2d at 347. I disagree with that conclusion.
In Davis, the Supreme Court held that:
"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, 547 U.S. at ___, 126 S.Ct. at 2273-74, 165 L.Ed.2d at 237 .
In my view, this holding does not indicate a shift in the focus to the intent of the police officer in taking the statement. Rather, the holding indicates that the perspective of the declarant is still the focus of the inquiry. The circumstances presented by the police interrogation are viewed from the perspective of the declarant, and the question is what those circumstances objectively indicate to the declarant concerning the primary purpose of the interrogation.
In Davis, the Court stated that "even when interrogation exists, it is in the final analysis the declarant's statements, not the interrogator's questions, that the Confrontation Clause requires us to evaluate." Davis, 547 U.S. at ___ n. 1, 126 S.Ct. at 2274 n. 1, 165 L.Ed.2d at 237 n. 1 . The plurality acknowledges that "ultimately it is the declarant's intent to which the confrontation clause looks." 225 Ill.2d at 290, 312 Ill.Dec. at 295, 870 N.E.2d at 360. I would hold that the focus in determining whether a statement is testimonial remains on the declarant's intent.
The plurality also concludes that a child's age "is among the circumstances potentially relevant to evaluating whether the objective circumstances of the statement would have led a reasonable declarant to understand that his or her statement could be used in a subsequent prosecution of the defendant." 225 Ill.2d at 296, 312 Ill.Dec. at 297, 870 N.E.2d at 362. In my opinion, the cases holding that a child's age should not be considered in determining whether a statement is testimonial are persuasive and should be followed. See People v. Sisavath, 118 Cal.App.4th 1396, 1402 n. 3, 13 Cal. Rptr.3d 753, 758 n. 3 (2004) ; State v. Snowden, 385 Md. 64, 90-91, 867 A.2d 314, 329 (2005) .
In Sisavath, the court rejected the notion that "an `objective witness' should be taken to mean an objective witness in the same category of persons as the actual witness-here, an objective four year old." Sisavath, 118 Cal.App.4th at 1402 n. 3, 13 Cal.Rptr.3d at 758 n. 3 . Instead, the court found that the Supreme Court likely meant that a statement is testimonial if its use in a criminal prosecution is reasonably foreseeable to an objective observer. Sisavath, 118 Cal.App.4th at 1402 n. 3, 13 Cal.Rptr.3d at 758 n. 3 .