IN THE SUPREME COURT OF IOWA
No. 14–0357
Filed April 1, 2016
Amended June 14, 2016
IN THE INTEREST OF J.C., Minor Child
J.C.,
Minor Child,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Scott County, Christine
Dalton, Judge.
A youth adjudicated as a delinquent seeks further review of a court
of appeals decision affirming the adjudication. DECISION OF COURT
OF APPEALS AND JUVENILE COURT JUDGMENT AFFIRMED.
Timothy J. Tupper, Davenport, for appellant.
Thomas J. Miller, Attorney General, Bruce L. Kempkes, Assistant
Attorney General, Michael J. Walton, County Attorney, and Elizabeth J.
Cervantes, Assistant County Attorney, for appellee.
2
MANSFIELD, Justice.
This appeal from an adjudication of delinquency requires us to
determine whether a violation of the Confrontation Clause occurred when
the juvenile court admitted out-of-court statements of a four-year-old
child victim. The child made some of the statements during a medical
assessment performed by a physician; others were made in the course of
a recorded interview conducted by a forensic interviewer. Both the
physician and the interviewer testified at the hearing.
Applying recent authority of the United States Supreme Court, we
find that admission of the physician’s testimony and report did not
violate the Confrontation Clause. We also conclude that any error in
admission of the forensic interviewer’s testimony was harmless beyond a
reasonable doubt in light of other overwhelming evidence that the
respondent committed the charged conduct. For these reasons, we
affirm the judgment of the juvenile court and the decision of the court of
appeals.
I. Facts and Procedural Background.
On July 2, 2013, twelve-year-old J.C. visited the home of his friend
K.W. An extended family lived in the home, including K.W.’s sister E.W.,
K.W.’s brother I.W., and their four-year-old niece A.W.
That afternoon a number of the children were playing outside.
J.C. tried to take pictures with a cellphone of E.W.’s chest and tried to
touch her. J.C. also attempted to show photos of his penis to E.W. On a
previous occasion, J.C. had written a note to E.W. asking to have sex.
After dinner, I.W. walked into an upstairs bedroom unannounced.
He saw J.C. pulling down A.W.’s underwear and saying, “It’s time to go to
sleep.” A.W. was lying on her back; J.C. was on his knees over her. The
underwear was halfway pulled down when I.W. arrived. I.W. yelled at
3
J.C. and pulled him off of A.W. J.C. denied that anything was going on,
turned red, and ran out of the house.
Meanwhile, E.W. and her friend M.M. had been downstairs. M.M.
heard A.W. scream. She and E.W. ran upstairs and entered the
bedroom. I.W. was already in the room. According to M.M., J.C. had
A.W. pinned on the bed and was on top of her. J.C. was taking off A.W.’s
clothing, and A.W.’s shirt was already on the floor. J.C. soon left the
house.
E.W. also recalled hearing commotion and going upstairs with
M.M. She arrived to see J.C. on the bed with A.W. and his arm on her.
To E.W.’s recollection, A.W. was still dressed.
The two older girls—E.W. and M.M.—grabbed A.W. and brought
her downstairs to her mother who was doing chores at the time. The
mother called the police and filed a report. The police later directed
A.W.’s parents to the Child Protection Response Center for interviewing.
The police also obtained K.W.’s cellphone, which J.C. had been
using that day. The cellphone was found to contain photos of J.C.’s
penis, a video of J.C. masturbating, and a video taken by J.C. of K.W.
with J.C.’s voiceover stating that K.W. was going to suck his penis that
evening.
A.W. does not speak very clearly. A.W. is in speech therapy and,
according to A.W.’s mother, talking to her is like talking to a two-year-
old.
On July 10, A.W. was brought to the Child Protection Response
Center by her parents. At that time A.W. was interviewed by Michele
Mattox—a forensic interviewer with the Child Protection Response Center
and a former twenty-five-year employee of the Iowa Department of
Human Services. Mattox had a referral sheet that said, “Rule out sex
4
abuse by older child . . . .” The interview was recorded on DVD, and
Mattox also prepared a report. Mattox recalled that A.W. “had a definite
speech and language problem and delay.” In the interview, A.W. said
that J.C. had touched her “pee” and that her clothes were off and J.C.’s
were on. Law enforcement observed the interview. 1
Additionally, Dr. Barbara Harre, a physician and the medical
director of the Child Protection Response Center, saw A.W. on July 31.
Her meeting was not recorded, but she dictated a report. Dr. Harre’s
report explained, “I was asked to complete a medical assessment for
[A.W.]” A.W.’s father brought her to the appointment, but Dr. Harre
spoke to A.W. alone. No one from law enforcement was present.
Dr. Harre took notes and then prepared a report addressed to the
assistant county attorney who later prosecuted the case.
Dr. Harre initially reviewed truth–lie concepts and conducted a
medical review of A.W.’s systems for any areas of discomfort or signs of
illness. Dr. Harre then asked A.W. if she could remember what had
happened with her brother’s friend when he was at her place. A.W.
stated, “Me upstairs. Pulled underpants off.” Dr. Harre asked if her
underpants came all the way off or down to her knees or something else.
A.W. stated, “To knees.” In response to a question whether she had been
touched, A.W. said, “Touched me boob. One. Two.” While saying this,
A.W. pointed to both sides of her chest.
Dr. Harre asked if the brother’s friend touched her anywhere else.
A.W. stated, “Touched back bottom,” while pointing to her rear. Dr.
Harre asked again if he touched anywhere else. A.W. stated, “Touched
1At one point, law enforcement sent in questions requesting more detail in one
subject area, and those questions were put to A.W. by Mattox and answered.
5
front bottom.” Dr. Harre asked A.W. what he touched her body with, and
A.W. said “Wawa,” apparently a reference to a dinosaur toy she used to
have. Dr. Harre asked if the touching hurt or felt good or tickled or
something else. A.W. said, “Hurt.” Dr. Harre asked A.W. if anybody else
had ever touched her in a way that made her uncomfortable or hurt or
something else. A.W. said, “No one else.”
After Dr. Harre finished asking these questions, she conducted a
full medical exam of A.W., with her father now present at A.W.’s request.
Dr. Harre found nothing abnormal in the physical exam. When asked
during the medical exam to indicate where she had been touched, A.W.
pointed to her front bottom area and her anal area. According to Dr.
Harre, it was “moderately” difficult to understand A.W. throughout the
interview and exam. Dr. Harre had not received any information
concerning Mattox’s interview before she saw A.W.
The State filed a delinquency petition and the case proceeded to
hearing. A.W.’s mother testified that A.W. would be traumatized by
testifying and might not even be able to speak. A psychologist, Catherine
Jackson, also testified that the trauma to a child of this age would
outweigh any benefit from the testimony. The State did not call A.W. to
testify. However, other witnesses for the State included I.W., E.W., M.M.,
Mattox, and Dr. Harre. J.C. testified on his own behalf and denied
assaulting A.W.
J.C. objected to testimony from Mattox and Dr. Harre describing
A.W.’s statements on the basis of hearsay and the Confrontation Clause. 2
2J.C.’scounsel did not specify whether he was referring to the Confrontation
Clause of the United States Constitution or that of the Iowa Constitution.
6
J.C. also objected to the admission of their written reports and the DVD
of Mattox’s interview with J.C.
The juvenile court sustained the objections to Mattox’s written
report and the DVD. The court admitted Dr. Harre’s written report. The
court also permitted both Dr. Harre and Mattox to testify regarding their
interviews of A.W. The court found beyond a reasonable doubt that J.C.
committed assault with intent to commit sexual abuse in violation of
Iowa Code section 709.11 (2013) and adjudicated J.C. a delinquent child
as defined by section 232.2(12).
The court noted that J.C.’s testimony “is inconsistent with A.W.[’s]
statements to Dr. Harre, and eyewitness accounts by I.W., E.W., M.M.,
and K.W. who saw A.W. and [J.C.] together. The eyewitness accounts
alone are quite persuasive in this case and appear credible due to the
differences which are explained by the order they entered the room.”
J.C. appealed. He argued that the court erred in admitting certain
testimony due to insufficient notice of the witness. He also urged that
the court should have excluded any evidence of A.W.’s statements to Dr.
Harre and Mattox as violating the Confrontation Clause. Lastly, he
argued that evidence of A.W.’s out-of-court statements to Dr. Harre and
Mattox should not have been admitted because A.W. was incompetent to
testify.
We transferred the case to the court of appeals. The court of
appeals affirmed, with one judge on the panel dissenting. J.C. filed an
application for further review, which we granted.
II. Standard of Review.
“We review constitutional questions de novo.” Clarke Cty.
Reservoir Comm’n v. Robins, 862 N.W.2d 166, 171 (Iowa 2015). Our
7
review of evidentiary claims is for abuse of discretion. State v.
Harrington, 800 N.W.2d 46, 48 (Iowa 2011).
III. Analysis.
On further review, we have discretion to let the court of appeals
decision stand as the final decision on an issue. See State v. Walker, 856
N.W.2d 179, 184 (Iowa 2014). We do so here with respect to the
inadequate notice argument and turn to the remaining issues.
A. Confrontation Clause—Dr. Harre. Both the Sixth Amendment
of the United States Constitution and article I, section 10 of the Iowa
Constitution preserve an accused’s right “to be confronted with the
witnesses against him.” This right of confrontation applies to juvenile
delinquency proceedings. In re Gault, 387 U.S. 1, 56, 87 S. Ct. 1428,
1459, 18 L. Ed. 2d 527, 562 (1967). Even though J.C.’s appellate brief
refers to both the Sixth Amendment and article I, section 10 of the Iowa
Constitution, he has not argued for a particular test or standard under
the Iowa Constitution. In fact, he has only cited caselaw decided under
the United States Constitution. We will therefore follow the approach we
took in State v. Kennedy:
“[W]e jealously protect this court’s authority to follow an
independent approach under our state constitution” for
provisions of the Iowa Constitution that are the same or
nearly identical to provisions in the United States
Constitution. However, in his appellate brief, [the appellant]
does not propose a specific test we should apply under
article I, section 10 of the Iowa Constitution. Rather he only
cites caselaw analyzing the Confrontation Clause under the
United States Constitution. Thus, under the facts of this
case, we choose not to interpret the Iowa Constitution any
differently from the United States Constitution.
846 N.W.2d 517, 522 (Iowa 2014) (first alteration in original) (citation
omitted) (quoting State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011)).
8
Under the Sixth Amendment, the fundamental question we must
answer is whether the out-of-court statements were testimonial in
nature. See State v. Bentley, 739 N.W.2d 296, 298 (Iowa 2007). “If the
statements are testimonial, they are inadmissible against [the defendant]
at trial; but if they are nontestimonial, the Confrontation Clause does not
prevent their admission.” Id. The burden is on the State to prove by a
preponderance of the evidence that a challenged statement is
nontestimonial. State v. Schaer, 757 N.W.2d 630, 635 (Iowa 2008).
In our determination of what constitutes testimonial evidence, the
United States Supreme Court’s decision in Crawford v. Washington
provides direction. 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004). As we have said concerning that decision,
[T]he Court indicated that, at a minimum, there were four
types of evidence that met the definition of testimonial:
grand jury testimony, preliminary hearing testimony, former
trial testimony, and statements resulting from police
interrogations. These are the types of evidence with the
“closest kinship” to historical “abuses at which the
Confrontation Clause was directed.”
In addition to these four categories of evidence, the
Supreme Court provided three “formulations” to aid courts in
determining whether other types of statements are
testimonial. The first formulation involved ex parte in-court
testimony or its functional equivalent where the declarant
would reasonably expect the statements to be used at trial
and where the defendant was unable to cross-examine the
declarant. The second formulation involved formalized
testimonial materials such as confessions and depositions.
The third and most open-ended formulation included
statements made under circumstances that would lead
witnesses to objectively believe the statements might be used
at trial.
State v. Shipley, 757 N.W.2d 228, 235 (Iowa 2008) (citations omitted)
(quoting Crawford, 541 U.S. at 51–52, 68, 124 S. Ct. at 1364, 1374, 158
L. Ed. 2d at 193, 203).
9
Our decision in Bentley involved the admissibility of an interview
with a ten-year-old girl. 739 N.W.2d at 297. The interview was
conducted by a counselor at a child protection center but was arranged
by police and DHS personnel and monitored by them through an
observation window. Id. During the interview, the girl made numerous
statements alleging the defendant had sexually abused her. Id.
We determined in Bentley that use of the interview violated the
defendant’s Confrontation Clause rights under the Sixth Amendment.
Id. at 302–03. After carefully reviewing the facts and circumstances, we
found that “[t]he extensive involvement of a police officer in the interview
leads us to conclude [the girl’s] statements were in effect ‘taken by [a]
police officer[] in the course of [an] interrogation[].’ ” Id. at 299 (last four
alterations in original) (quoting Crawford, 541 N.W.2d U.S. at 52, 124
S. Ct. at 1364, 158 L. Ed. 2d at 193). Among other things, we
emphasized the “close, ongoing relationship” between local law
enforcement and the child protection center; the participants’
acknowledgment that the interview “served an investigative function for
the State”; the disclosure to the girl at the beginning of the interview that
police and DHS were listening through the observation window
accompanied by the interviewer’s explanation that “it’s just really
important the police know about everything that happened”; and the
interviewer’s mid-interview consultation with the police and DHS
representatives to obtain more questions. Id. at 299–300.
Since Bentley, we have determined in two cases that statements to
medical personnel were not testimonial. In Schaer, the victim spoke to
treating medical personnel in an emergency room before police arrived,
identifying the defendant as her attacker. 757 N.W.2d at 632. We noted
that the statements “were not solemn declarations made for the purpose
10
of proving some fact” or “made under circumstances that would lead an
objective person to reasonably believe the statements would be available
for use at a later trial.” Id. at 636. The interview “lack[ed] the indicia of
formality” evident in Bentley, and there was “no indication in the record
of any relationship between the emergency room personnel and law
enforcement authorities that would support a finding the medical
providers’ questioning of [the victim] as to the cause of her injuries was ‘a
substitute for police interrogation at the station house.’ ” Id. at 637
(quoting Bentley, 739 N.W.2d at 299).
Likewise, in State v. Harper, we held that a victim’s statements to
hospital staff that the defendant had raped her, tied her, and set her
house on fire were nontestimonial. 770 N.W.2d 316, 322 (Iowa 2009). A
doctor had asked the badly burned victim what had happened to her and
the victim responded. Id. at 323. “The primary purpose of the
statements was to assist the physicians in treating her.” Id.
The question we confront today is whether the statements of a
four-year-old to (1) the medical director of the Child Protection Response
Center and (2) a forensic interviewer employed by the same organization
were testimonial. The statements were made on different visits that
occurred on different dates. Law enforcement observed the forensic
interview but not the interview conducted by the medical director. It is
clear that the police arranged the forensic interview, but less clear how
the subsequent meeting with the medical director came about. 3
3Dr. Harre testified that A.W. “was referred from the . . . emergency room where
she was seen on July 3.” Her report, however, indicates that Mattox made the referral
following the forensic interview. A police officer, meanwhile, testified that he directed
A.W.’s parents to Dr. Harre’s office so A.W. could be examined. However, A.W.’s mother
testified that “the hospital told me to make an appointment with the doctor lady to talk
to her and find out if there was anything else going on, and that’s what I did.”
11
For additional guidance we turn to the United States Supreme
Court’s recent decision in Ohio v. Clark, 576 U.S. ___, 135 S. Ct. 2173,
192 L. Ed. 2d 306 (2015). Because of its recent vintage, we have not
previously considered or discussed this case. In addition, the court of
appeals did not have the benefit of Clark when it rendered its decision in
this case.
In Clark, the defendant was alleged to have physically abused his
girlfriend’s two young children, one of whom was a three-year-old boy,
L.P. Id. at ___, 135 S. Ct. at 2177–78, 192 L. Ed. 2d at 312. The boy was
found not competent to testify, but his statements to two teachers
identifying the defendant as the person who had caused his injuries were
admitted by the trial court. Id. at ___, 135 S. Ct. at 2178, 192 L. Ed. 2d
at 312–13.
On appeal, both the Ohio Court of Appeals and the Ohio Supreme
Court found that the admission of the young boy’s statements to his
teachers violated the Confrontation Clause. Id. at ___, 135 S. Ct. at
2178, 192 L. Ed. 2d at 313. Noting that the teachers were under a legal
obligation to report child abuse to government authorities, the Ohio
Supreme Court found that the statements qualified as testimonial
because the primary purpose of the teachers’ questioning “was not to
deal with an existing emergency but rather to gather evidence potentially
relevant to a subsequent criminal prosecution.” Id. The United States
Supreme Court reversed and found no violation. Id. at ___, 135 S. Ct. at
2179, 2181, 192 L. Ed. 2d at 313, 315. 4
4The reversal was unanimous. Clark, 576 U.S. at ___, 135 S. Ct. at 2177, 192
L. Ed. 2d at 311. Justice Alito wrote the opinion for the Court, which a total of six
justices joined. Id. Justice Scalia wrote a separate opinion concurring in the judgment.
Justice Thomas also wrote a separate opinion concurring in the judgment. Id. Justice
Ginsburg joined Justice Scalia’s separate opinion. Id.
12
The Court’s opinion first summarized the Court’s Confrontation
Clause precedents, including Crawford, which announced and
expounded on the primary-purpose test. Id. at ___, 135 S. Ct. at 2179–
81, 192 L. Ed. 2d at 313–15. The Court then went on,
Thus, under our precedents, a statement cannot fall
within the Confrontation Clause unless its primary purpose
was testimonial. “Where no such primary purpose exists,
the admissibility of a statement is the concern of state and
federal rules of evidence, not the Confrontation Clause.” But
that does not mean that the Confrontation Clause bars every
statement that satisfies the “primary purpose” test. We have
recognized that the Confrontation Clause does not prohibit
the introduction of out-of-court statements that would have
been admissible in a criminal case at the time of the
founding. Thus, the primary purpose test is a necessary,
but not always sufficient, condition for the exclusion of out-
of-court statements under the Confrontation Clause.
Id. at ___, 135 S. Ct. at 2180–81, 192 L. Ed. 2d at 315 (citations omitted)
(quoting Michigan v. Bryant, 562 U.S. 344, 359, 131 S. Ct. 1143, 1155,
179 L. Ed. 2d 93, 107–08 (2011)). In short, the Court made clear that
out-of-court statements could fail the primary-purpose test and still be
admissible notwithstanding the Confrontation Clause.
Applying these principles to Clark’s prosecution, the Supreme
Court majority first examined the primary-purpose test. It found that
the boy’s statements “clearly were not made with the primary purpose of
creating evidence for Clark’s prosecution.” Id. at ___, 135 S. Ct. at 2181,
192 L. Ed. 2d at 315. Rather, as the Court explained,
L.P. statements occurred in the context of an ongoing
emergency involving suspected child abuse. When L.P’s
teachers noticed his injuries, they rightly became worried
that the 3-year-old was the victim of serious violence.
Because the teachers needed to know whether it was safe to
release L.P. to his guardian at the end of the day, they
needed to determine who might be abusing the child. Thus,
the immediate concern was to protect a vulnerable child who
needed help.
13
Id. at ___, 135 S. Ct. at 2181, 192 L. Ed. 2d at 315–16 (footnote omitted).
The Court went on,
There is no indication that the primary purpose of the
conversation was to gather evidence for Clark’s prosecution.
On the contrary, it is clear that the first objective was to
protect L.P.. At no point did the teachers inform L.P. that
his answers would be used to arrest or punish his abuser.
L.P. never hinted that he intended his statements to be used
by the police or prosecutors. And the conversation between
L.P. and his teachers was informal and spontaneous. The
teachers asked L.P. about his injuries immediately upon
discovering them, in the informal setting of a preschool
lunchroom and classroom, and they did so precisely as any
concerned citizen would talk to a child who might be the
victim of abuse.
Id. at ___, 135 S. Ct. at 2181, 192 L. Ed. 2d at 316.
Yet the Court did not leave the analysis there. The Court stated
that “L.P.’s age fortifies our conclusion that the statements in question
were not testimonial. Statements by very young children will rarely, if
ever, implicate the Confrontation Clause.” Id. at ___, 135 S. Ct. at 2181–
82, 192 L. Ed. 2d at 316. The Court commented that “it is extremely
unlikely that a 3-year-old child in L.P.’s position would intend his
statements to be a substitute for trial testimony.” Id. at ___, 135 S. Ct. at
2182, 192 L. Ed. 2d at 316. Additionally, the Court emphasized that in
the eighteenth century, out-of-court statements by children who were
incompetent to testify due to their youth were regularly admitted in
criminal cases. Id. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 316–17.
Therefore, in the Court’s view, “It is . . . highly doubtful that statements
like L.P.’s ever would have been understood to raise Confrontation
Clause concerns.” Id. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 317.
Also, the Court reiterated that the statements were made to teachers, not
law enforcement officials:
14
Statements made to someone who is not principally charged
with uncovering and prosecuting criminal behavior are
significantly less likely to be testimonial than statements
given to law enforcement officers. It is common sense that
the relationship between a student and his teacher is very
different from that between a citizen and the police.
Id. (citation omitted). The Court concluded, “In light of these
circumstances, the Sixth Amendment did not prohibit the State from
introducing L.P.’s statements at trial.” Id.
Based on the Supreme Court’s opinion in Clark, we do not believe
admission of Dr. Harre’s testimony and report violated J.C.’s rights of
confrontation under the Sixth Amendment. Several points must be
noted. A.W. is a very young child, and the Supreme Court said in Clark
that “[s]tatements by very young children will rarely, if ever, implicate the
Confrontation Clause.” Id. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at
316. The Court supported this statement with historical evidence
including an approving citation to a law review article. Id. at ___, 135
S. Ct. at 2182, 192 L. Ed. 2d at 316–17 (citing Thomas D. Lyon &
Raymond LaMagna, The History of Children’s Hearsay: From Old Bailey to
Post-Davis, 82 Ind. L.J. 1029 (2007) [hereinafter Lyon]). The article
makes clear that in eighteenth century Britain, “the hearsay of
unavailable child witnesses was routinely admitted.” Lyon, 82 Ind. L.J.
at 1030. Thus, A.W.’s age alone may settle the Sixth Amendment
inquiry. 5
5In his separate opinion concurring in the judgment, Justice Scalia gave primacy
to the primary-purpose test. Clark, 576 U.S. at ___, 135 S. Ct. at 2184–85, 192 L. Ed.
2d at 319–20 (Scalia, J., concurring in the judgment). He explained,
The Confrontation Clause categorically entitles a defendant to be
confronted with the witnesses against him; and the primary-purpose test
sorts out, among the many people who interact with the police
informally, who is acting as a witness and who is not. Those who fall into
the former category bear testimony, and are therefore acting as
“witnesses,” subject to the right of confrontation.
15
Also, A.W.’s statements were made to a physician, with no law
enforcement representative in the room or even observing the encounter
remotely. In Clark, the Supreme Court stressed “that the relationship
between a student and teacher is very different from that between a
citizen and the police.” Id. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at
317. The same is true of the relationship between a small child and
physician.
Under a pure primary-purpose test, the issue would undoubtedly
be closer—certainly closer than Clark. 6 Yet even here a number of
___________________________________
Id. at ___, 135 S. Ct. at 2185, 192 L. Ed. 2d at 320. Justice Scalia concurred in the
result because, in his view, the primary-purpose test had not been met. Id. at ___, 135
S. Ct. at 2184, 192 L. Ed. 2d at 318–19. He also criticized parts of the majority opinion
going beyond the primary-purpose test as “dicta” that in his view were “not binding.”
Id. at ___, 135 S. Ct. at 2184, 192 L. Ed. 2d at 319.
The academic community is only just starting to weigh in on Clark. The only
published law review article we have been able to find by a law professor—as opposed to
a blog or a law student note—reviewed the Court’s entire opinion and then concluded,
“Which of these points was essential to the Court’s conclusion that the Confrontation
Clause did not apply was not obvious.” David L. Noll, Constitutional Evasion and the
Confrontation Puzzle, 56 B.C. L. Rev. 1899, 1917 n.158 (2015).
Furthermore, “[c]arefully considered language of the Supreme Court, even if
technically dictum, generally must be treated as authoritative.” United States v. Oakar,
111 F.3d 146, 153 (D.C. Cir. 1997) (alteration in original) (quoting Doughty v.
Underwriters at Lloyd’s, London, 6 F.3d 856, 861 n.3 (1st Cir. 1993)).
It is also noteworthy that Justice Scalia—widely known as an originalist—did not
reject the possibility that out-of-court statements by small children would be admissible
today based on their admissibility at common law, even if they were deemed testimonial
under the primary-purpose test. All he said was that once evidence is “testimonial,”
i.e., as determined under the primary-purpose test, the burden rests with the
prosecutor “to prove a long-established practice” of introducing this category of evidence
“for which cross-examination was not typically necessary.” Clark, 576 U.S. at ___, 135
S. Ct. at 2185, 192 L. Ed. 2d at 320. Justice Scalia also cited the Lyon and LaMagna
article with approval. Id. at ___, 135 S. Ct. at 2184, 192 L. Ed. 2d at 319. So it is
entirely plausible that Justice Scalia would have agreed: Out-of-court statements by
very young children who are not competent to testify do not raise Confrontation Clause
concerns today because they did not raise admissibility concerns in the eighteenth
century.
6For one thing, A.W.’s statements were not made “in the context of an ongoing
emergency,” but well after law enforcement had commenced their investigation. Cf.
Clark, ___, U.S. at 135 S. Ct. at 2181, 192 L. Ed. 2d at 315.
16
factors weigh against a Confrontation Clause violation. The primary-
purpose test asks whether the main purpose of the conversation was to
“creat[e] an out-of-court substitute for trial testimony.” Id. at ___, 135
S. Ct. at 2180, 192 L. Ed. 2d at 315 (alteration in original) (quoting
Bryant, 562 U.S. at 358, 131 S. Ct. at 1155, 179 L. Ed. 2d at 107. At the
outset, we need to ask, “Whose primary purpose?” A.W.’s or Dr. Harre’s?
The Court applied the primary-purpose test by considering the matter
from the perspective of both interviewer and interviewee. See id. at ___,
135 S. Ct. at 2181, 192 L. Ed. 2d at 316 (noting that “the first objective
was to protect L.P.” and L.P. “never hinted that he intended his
statements to be used by the police or prosecutors”). The Court also
stressed that the conversation was “informal and spontaneous.” Id.
Weighing all the circumstances here, and considering the role of
both participants in the conversation, the following factors support a
determination that the Confrontation Clause was not violated under the
primary-purpose test: First, it is obvious that A.W.’s purpose was not to
make a statement to Dr. Harre that could be used to prosecute J.C.
Second, the setting was informal. Dr. Harre and A.W. met by themselves
at Dr. Harre’s office. Dr. Harre first asked A.W. to make letters on an
easel board, and went over truth–lie differences. She then conducted a
“medical review of systems,” asking A.W. about areas of discomfort or
signs of illness. After doing so, she asked A.W. if she could remember
what happened with her brother’s friend. Dr. Harre then conducted a
full physical exam, at that point with A.W.’s father present. Dr. Harre
took notes throughout the entire process, but no recording took place.
Dr. Harre later dictated from her notes. The discussion of the incident
with J.C. represented a single paragraph in the five-page report.
17
Third, while it appears that law enforcement made the original
referral that led to Mattox’s forensic interview in early July, any law
enforcement role in arranging Dr. Harre’s session with A.W. in late July
would have been more attenuated. The two encounters took place three
weeks apart, and Dr. Harre did not have access to the forensic interview
when she examined and spoke with A.W. Furthermore, according to Dr.
Harre, she receives referrals from “police department[s], [DHS], other
physicians, therapists, [and] emergency rooms,” and she performed the
standard evaluation with A.W. that she would perform with “any other
child.”
To be fair, when we view the matter from Dr. Harre’s perspective
alone, the session likely served “two purposes”—analyzing A.W.’s medical
condition and memorializing her story. See State ex rel. Juv. Dep’t of
Multnomah Cty. v. S.P., 215 P.3d 847, 865 (Or. 2009) (en banc) (finding,
pre-Clark, a Sixth Amendment violation when a three-year-old’s
statements during an interview with a child abuse response center were
admitted at trial). Dr. Harre was providing medical assessment, but her
report was addressed to the assistant county attorney who later
prosecuted the case.
However, when we consider the totality of circumstances under the
primary-purpose test, as well as the additional points emphasized by the
Supreme Court in Clark, we find no Sixth Amendment violation. Several
things distinguish this case from Bentley and the Oregon Supreme
Court’s decision in S.P. No law enforcement personnel attended or
monitored Dr. Harre’s session with A.W. Cf. Bentley, 739 N.W.2d at 297;
S.P., 215 P.3d at 860. In fact, a recorded forensic interview with law
enforcement on site had already occurred when Dr. Harre met with A.W.
without law enforcement. Moreover, A.W. was considerably younger than
18
the ten-year-old victim in Bentley 7—an important consideration
according to the Clark Court.
Finally, and crucially, we cannot ignore the Supreme Court’s
pronouncement that “[s]tatements by very young children will rarely, if
ever, implicate the Confrontation Clause,” as well as the Court’s reliance
on the historical record, which indicates that hearsay statements of child
witnesses who were incompetent to testify were admitted at common law.
Clark, 576 U.S. at ___, 135 S. Ct. at 2181–82, 192 L. Ed. 2d at 316–17.
Since J.C. does not urge us to apply a different approach under
article I, section 10 of the Iowa Constitution, we decline to do so in this
case. Thus, we find that admission of Dr. Harre’s testimony and written
report did not violate J.C.’s confrontation rights under either the Sixth
Amendment or article I, section 10 of the Iowa Constitution.
Still, we close our discussion of Dr. Harre’s interview with a few
words of caution. Under a primary-purpose test, we do not believe an
interview whose primary purpose is testimonial generally can be salvaged
just because it is wedged inside a medical exam. The primary-purpose
test applies to “the interrogation” that is at issue. Id. at ___, 135 S. Ct. at
2180, 192 L. Ed. 2d at 314. In addition, we do not believe that arranging
a prior recorded forensic interview necessarily insulates a subsequent
less-formal interview from attack under the Confrontation Clause.
Lastly, as stated already, we jealously guard our authority to interpret
the Iowa Constitution independently in a future case, particularly if a
litigant argues such an interpretation in her or his briefing.
7We noted in Bentley that the victim functioned at a seven-year-old level, see
739 N.W.2d at 300, but this is still much older than A.W.’s chronological age or the
level of her communication skills.
19
B. Confrontation Clause—Mattox. We now turn to whether the
admission of Mattox’s testimony violated J.C.’s Confrontation Clause
rights. Despite A.W.’s very young age, we will assume without deciding
that a violation occurred. Mattox’s job title is “forensic interviewer.” See
Bentley, 739 N.W.2d at 299 (noting that the interview was described by a
police officer as a “forensic interview”). Law enforcement made a referral
call for Mattox’s interview of A.W., and law enforcement was present
when it occurred. The interview was recorded, and the recording was
provided to the county attorney’s office. See id. at 300 (noting that a
copy of the tape was provided to police and marked as evidence).
Having said this, we agree with the court of appeals that any error
was harmless. See Kennedy, 846 N.W.2d at 527 (“The erroneous
admission of evidence in violation of the Confrontation Clause is a
constitutional error subject to a harmless-error analysis.”). To find a
constitutional error harmless, “[w]e are required to ask whether the force
of the evidence ‘is so overwhelming as to leave it beyond a reasonable
doubt that the verdict resting on that evidence would have been the
same’ without the erroneously admitted evidence.” Id. at 528 (quoting
Yates v. Evatt, 500 U.S. 391, 405, 111 S. Ct. 1884, 1893, 114 L. Ed. 2d
432, 449 (1991)). In this context, harmless error means “no reasonable
possibility that [the erroneously admitted] evidence might have
contributed to the [adjudication].” Id. (quoting State v. Hensley, 534
N.W.2d 379, 383 (Iowa 1995)). The State bears the burden of
establishing harmless error. Id. at 527.
Here, the other evidence against J.C. was quite strong. Unlike in
many child abuse cases, there were other eyewitnesses to the act of
abuse besides the victim—namely M.M., I.W., and E.W. As the juvenile
court put it, “The eyewitness accounts alone are quite persuasive in this
20
case and appear credible due to the differences which are explained by
the order they entered the room.” Furthermore, as noted by the juvenile
court, there was recorded evidence of J.C.’s “heightened interest in
sexual activity on the date in question.” J.C.’s testimony that he was
trying to get A.W. out of the room was contradicted by the eyewitnesses;
furthermore, J.C. had no explanation for the cell phone recording. And
Dr. Harre’s testimony and report provided further confirmation that an
assault with intent to commit sexual abuse had occurred. In short, the
remaining evidence was so strong that we see no reasonable possibility
Mattox’s testimony might have contributed to the adjudication. See id.
at 528.
C. Competency of A.W. J.C. also challenges the admission of
A.W.’s out-of-court statements to Dr. Harre on the basis that A.W. was
incompetent to testify herself and, thus, Dr. Harre should not have been
allowed to testify regarding A.W.’s statements. We will assume for the
purposes of this analysis that A.W. was incompetent to testify. We have
not previously addressed whether out-of-court statements made by
incompetent witnesses may be admissible under exceptions to the
hearsay rule.
Dr. Harre’s testimony and her report of her interview with A.W.
were admitted under Iowa Rule of Evidence 5.803(4) as statements made
for the purpose of obtaining medical diagnosis or treatment.
Significantly, J.C. does not appeal that ruling. Also, in Clark, the United
States Supreme Court implicitly rejected the argument that a child’s
incompetence to appear as a trial witness foreclosed the admission of
that same child’s out-of-court statements:
Clark is also wrong to suggest that admitting L.P.’s
statements would be fundamentally unfair given that Ohio
law does not allow incompetent children to testify. In any
21
Confrontation Clause case, the individual who provided the
out-of-court statement is not available as an in-court
witness, but the testimony is admissible under an exception
to the hearsay rules and is probative of the defendant’s guilt.
The fact that the witness is unavailable because of a different
rule of evidence does not change our analysis.
Clark, 576 U.S. at ___, 135 S. Ct. at 2183, 192 L. Ed. 2d at 318. In
addition, the Supreme Court has rejected the argument that an
incompetent declarant’s out-of-court statements are “presumptively
unreliable.” Idaho v. Wright, 497 U.S. 805, 824, 110 S. Ct. 3139, 3151,
111 L. Ed. 2d 638, 658 (1990).
Other courts have reached similar conclusions. See Morgan v.
Foretich, 846 F.2d 941, 949 (4th Cir. 1988) (“The fact that a young child
may be incompetent to testify at trial affects neither prong of the two-part
test for admitting evidence under 803(4).”); Borchgrevink v. State, 239
P.3d 410, 423 (Alaska Ct. App. 2010) (“[C]ourts have admitted hearsay
under this exception even when the person who made the out-of-court
statement was incompetent to testify.”), overruled on other grounds by
Moreno v. State, 341 P.3d 1134 (Alaska 2015); State v. Waddell, 504
S.E.2d 84, 90 (N.C. Ct. App. 1998) (rejecting the argument that the
child’s incompetence rendered his out-of-court statements for purposes
of medical diagnosis or treatment inadmissible); State v. Muttart, 875
N.E.2d 944, 954 (Ohio 2007) (“[R]egardless of whether a child less than
ten years old has been determined to be competent to testify . . . , the
child’s statements may be admitted at trial as an exception to the
hearsay rule pursuant to [rule] 803(4) if they were made for purposes of
medical diagnosis or treatment.”). But see B.B. v. Commonwealth, 226
S.W.3d 47, 51 (Ky. 2007) (holding that a child victim’s out-of-court
statements should have been excluded because “the immaturity that
22
rendered her incompetent at trial would have existed at the time of the
interview as well”). As one treatise has said,
Out-of-court statements for purposes of medical
diagnosis or treatment may in some instances be admissible
despite lack of testimonial competence when the statement
was made. Statements for purposes of diagnosis or
treatment are considered reliable because the patient has an
incentive to be truthful with the physician. A child who
lacks one or more elements of testimonial competence may
nevertheless possess the incentive required by the diagnosis
or treatment exception.
John E.B. Myers, Myers on Evidence of Interpersonal Violence, Child
Maltreatment, Intimate Partner Violence, Rape, Stalking, and Elder Abuse
§ 7.20 (2016) (footnote omitted).
We affirm the juvenile court’s ruling that A.W.’s incompetence to
testify at trial did not render Dr. Harre’s testimony and report per se
inadmissible.
IV. Conclusion.
For the foregoing reasons, we affirm J.C.’s adjudication.
DECISION OF COURT OF APPEALS AFFIRMED AND JUVENILE
COURT JUDGMENT AFFIRMED.
All justices concur except Cady, C.J., who concurs specially, and
Wiggins, J., and Hecht and Appel, JJ., who dissent.
23
#14–0357, In re J.C.
CADY, Chief Justice (concurring specially).
I join in the opinion of the majority, but would not place weight on
the eighteenth century practice of admitting statements of very young
children. I otherwise agree the totality of the circumstances supports the
conclusion that the primary purpose of the interview by Dr. Harre was
not testimonial.
24
#14–0357, In re J.C.
WIGGINS, Justice (dissenting).
I dissent. I disagree with the majority opinion’s analysis
concerning the significance of A.W.’s age in determining whether the
introduction of her statements violated J.C.’s rights under the
Confrontation Clause contained in the Sixth Amendment to the United
States Constitution. Additionally, I disagree with the conclusion reached
in the majority opinion and the special concurrence as to the primary
purpose of A.W.’s statements. Because the primary-purpose test
requires a court to consider the purposes of all participants involved in
eliciting a statement as part of the totality of the circumstances, it is
evident that A.W.’s statements were testimonial.
Ohio v. Clark is the only case in which the United States Supreme
Court has addressed whether statements a victim made to someone
other than a law enforcement officer may violate the Confrontation
Clause. 576 U.S. ___, ___, 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306,
314–15 (2015). In Clark, the Court recognized “at least some statements
to individuals who are not law enforcement officers could conceivably
raise confrontation concerns.” Id. at ___, 135 S. Ct. at 2181, 192 L. Ed.
2d at 315. The Court also affirmed that determinations as to whether
such statements are testimonial turn on the primary-purpose test. Id.
The primary-purpose test requires a court to determine “whether,
in light of all the circumstances, viewed objectively, the ‘primary purpose’
of the conversation was to ‘creat[e] an out-of-court substitute for trial
testimony.’ ” Id. at ___, 135 S. Ct. at 2180, 192 L. Ed. 2d at 315 (quoting
Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 1155, 179 L. Ed.
2d 93, 107 (2011)). As the Court has previously explained,
25
[T]he relevant inquiry is not the subjective or actual purpose
of the individuals involved in a particular encounter, but
rather the purpose that reasonable participants would have
had, as ascertained from the individuals’ statements and
actions and the circumstances in which the encounter
occurred.
Bryant, 562 U.S. at 360, 131 S. Ct. at 1156, 179 L. Ed. 2d at 108–09.
The primary-purpose determination demands objective analysis of
the circumstances of the encounter and the statements and actions of
both interviewer and interviewee. See id. at 360, 131 S. Ct. at 1156, 179
L. Ed. 2d at 108. In other words, a court must look to the totality of the
circumstances and consider the purposes of all participants involved in
obtaining a statement when deciding whether a statement’s primary
purpose was testimonial.
The Clark Court made two additional observations concerning
application of the primary-purpose test. First, statements made to
persons who are “not principally charged with uncovering and
prosecuting criminal behavior are significantly less likely to be
testimonial than statements given to law enforcement officers.” Clark,
576 U.S. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 317. Second, a very
young child who is being abused is “extremely unlikely . . . [to] intend his
statements to be a substitute for trial testimony.” Id. at ___, 135 S. Ct. at
2182, 192 L. Ed. 2d at 316.
I agree with most of the majority opinion’s analysis of Clark.
However, the majority opinion essentially reads Clark as holding
statements by very young children never implicate the Confrontation
Clause, unless (perhaps) such statements were made to or in the
presence of a law enforcement officer. 8 The Clark Court stopped far
8When no single rationale explaining the result enjoys the assent of a majority of
the Justices sitting, the holding of a fragmented court is the position taken by the
26
short of adopting such a rule. The age of the three-year-old child, L.P.,
who made the statements at issue in Clark merely “fortified” the Court’s
conclusion that the statements he made were nontestimonial insofar as
his youth made it “extremely unlikely” he intended those statements to
serve as a substitute for trial testimony. Id. at ___, 135 S. Ct. at 2181–
82, 192 L. Ed. 2d at 316. Although the Court acknowledged it was
doubtful statements a three-year-old child made to his teachers would
have been understood to raise confrontation concerns at the time of the
founding, the Court concluded the statements at issue were
nontestimonial by relying on the primary-purpose test. Id. at ___, 135
S. Ct. at 2181–82, 192 L. Ed. 2d at 315–16; see id. at ___, 135 S. Ct. at
2184–85, 192 L. Ed. 2d at 319–20 (Scalia, J., concurring in the
judgment) (discussing the majority holding and pointing out that the
burden is upon the prosecutor who seeks to introduce testimonial
evidence despite the Confrontation Clause “to prove a long-established
practice of introducing specific kinds of evidence, such as dying
declarations, for which cross-examination was not typically necessary”
(citation omitted)).
The Clark Court acknowledged the existence of “strong evidence
that statements made in circumstances similar to those facing L.P. and his
teachers were admissible at common law” and indicated it is “thus highly
doubtful that statements like L.P.’s ever would have been understood to
raise Confrontation Clause concerns.” Id. at ___, 135 S. Ct. at 2182, 192
L. Ed. 2d at 316–17 (majority opinion) (emphasis added). However, the
___________________________________
Justices who concurred in the decision on the narrowest grounds. Marks v. United
States, 430 U.S. 188, 193, 97 S. Ct. 990, 993, 51 L. Ed. 2d 260, 266 (1977).
27
Court in no way suggested historical evidence was critical to its holding,
let alone adopted a categorical rule that statements made by very young
children do not raise confrontation concerns.
For this reason, most legal scholars to consider Clark thus far have
recognized as dictum the language in Clark suggesting the fact that an
out-of-court statement’s primary purpose was testimonial as “necessary,
but not always sufficient” for its exclusion under the Confrontation
Clause. See Richard D. Friedman, Ohio v. Clark: Some Initial Thoughts,
The Confrontation Blog (June 19, 2015, 1:09 AM),
http://confrontationright.blogspot.com/2015/06/ohio-v-clark-some-
initial-thoughts.html (acknowledging the “necessary but not always
sufficient” language as “potentially dangerous” dictum); Paul F.
Rothstein, A Comment on the Supreme Court’s Decision in Ohio v. Clark:
The Court’s Confrontation Clause Jurisprudence Evolves (2015),
http://ssrn.com/abstract=2627748 (noting Clark provides an “escape
hatch for future cases—one that is clearly dictum”); see also Chad
Squitieri, Note, Confronting Big Data: Applying the Confrontation Clause to
Government Data Collection, 101 Va. L. Rev. 2011, 2022 n.71 (2015)
(describing the “necessary, but not always sufficient” language as
dictum). Justice Scalia, joined by Justice Ginsburg in an opinion
concurring in the result, agreed. Clark, 576 U.S. at ___, 135 S. Ct. at
2184–85, 192 L. Ed. 2d at 318–20 (Scalia, J., concurring in the
judgment).
In my view, the majority opinion rests on an expansive reading of
dictum in Clark to adopt the very rule the Clark majority refused to
adopt. Simply put, the Clark majority declined to hold that statements
made by very young children or statements made to individuals other
than law enforcement officers never implicate the Confrontation Clause.
28
Rather, as the Clark majority explained, “Courts must evaluate
challenged statements in context, and part of that context is the
questioner’s identity.” Id. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at
317 (majority opinion).
Of course, the analysis in Clark concerning whether the statements
at issue in that case were testimonial is instructive. Because the three-
year-old child who made those statements was so young, in applying the
primary-purpose test the Court focused on the objective circumstances
indicating the purpose his teachers had in eliciting them. Id. at ___, 135
S. Ct. at 2181, 192 L. Ed. 2d at 315–16. The Court concluded the
statements were nontestimonial because his teachers were responding to
an “ongoing emergency involving suspected child abuse” and sought to
“protect the victim from future attacks.” Id. In short, there was simply
“no indication that the primary purpose of the conversation was to gather
evidence for Clark’s prosecution” given that the conversation between the
child and his teachers was “informal and spontaneous.” Id. at ___, 135
S. Ct. at 2181, 192 L. Ed. 2d at 316.
In applying the primary-purpose test, it is important to consider
objectively all the circumstances surrounding the statements at issue,
not just those suggesting the statements were nontestimonial. Here, two
objective circumstances weigh in favor of the conclusion that A.W.’s
statements were nontestimonial. First, Dr. Harre is not a police officer.
Second, A.W. was only four-and-a-half-years old when she made the
statements to Dr. Harre.
On the other side of the scale are several circumstances suggesting
“in light of all the circumstances, viewed objectively, the ‘primary
purpose’ of the conversation was to ‘creat[e] an out-of-court substitute
for trial testimony.’ ” Id. at ___, 135 S. Ct. at 2180, 192 L. Ed. 2d at 315
29
(quoting Bryant, 562 U.S. at 358, 131 S. Ct. at 1155, 179 L. Ed. 2d at
107). In contrast to Clark, there was ample circumstantial evidence to
suggest the purpose of the individuals who elicited the statement at issue
was to create an out-of-court substitute for trial testimony and virtually
no evidence to suggest they had any other purpose.
First, it is clear law enforcement instructed A.W.’s parents to take
her to Dr. Harre’s office. Detective Robinson testified as follows:
Q. When did you first become involved with the [J.C.]
case? A. I don’t remember the exact date, but it was
assigned to me at a certain time. That’s when and how I
became involved in it.
Q. Do you know if the family of [the victim] made
initial contact with you or did they make initial contact with
another officer? A. They made initial contact with the front
desk of our police department and filed a report there.
Q. And when was it assigned to you? A. I do not
know off the top of my head.
Q. But would it have been shortly after they made
contact? A. Yes. Yes, within a couple days.
Q. And what’s sort of the standard procedure for
investigating this type of case? A. Usually, after I receive
the initial case, I’ll read the report and find out who I have
involved in that investigation, and we’ll call each one in as a
witness.
With this particular case having a victim, especially a
young victim, I got ahold of her mother and father and had
them take her down to the Child Protection Center where
Dr. Harre’s office is to be examined by her, and also
specifically interviewed by Michele Mattox, who is a child
forensic interviewer through that same department as well.
Q. And did you interview the other children involved
in this situation? A. I did.
Thus, Detective Robinson testified he sought to have Dr. Harre’s office
perform the investigative task of interviewing A.W. because she was so
30
young. In contrast, Detective Robinson interviewed the older children
present at the time of the alleged delinquent act himself. Moreover, as
his testimony makes clear, Detective Robinson instructed A.W.’s parents
to take her to Dr. Harre because doing so was part of the Davenport
Police Department’s “standard operating procedure for investigating this
type of case.”
The fact that the Davenport Police Department regularly utilizes
Dr. Harre’s office to interview young children who are suspected victims
of abuse suggests Dr. Harre’s office acts on behalf of the police in
conducting such interviews. The Code actively encourages the police and
others involved in prosecuting suspected child abuse to work
cooperatively with medical and mental health professionals such as
Dr. Harre to conduct child abuse investigations and make child abuse
assessments. The Code provides,
4. a. A child protection assistance team involving the
county attorney, law enforcement personnel, and personnel
of the department of human services shall be established for
each county by the county attorney. However, by mutual
agreement, two or more county attorneys may establish a
single child protection assistance team to cover a
multicounty area. A child protection assistance team, to the
greatest extent possible, may be consulted in cases involving
a forcible felony against a child who is less than age fourteen
in which the suspected offender is the person responsible for
the care of a child, as defined in section 232.68. A child
protection assistance team may also be utilized in cases
involving a violation of chapter 709 or 726 or other crime
committed upon a victim as defined in subsection 1.
b. A child protection assistance team may also consult
with or include juvenile court officers, medical and mental
health professionals, physicians or other hospital-based
health professionals, court-appointed special advocates,
guardians ad litem, and members of a multidisciplinary team
created by the department of human services for child abuse
investigations. A child protection assistance team may work
cooperatively with the early childhood Iowa area board
31
established under chapter 256I. The child protection
assistance team shall work with the department of human
services in accordance with section 232.71B, subsection 3,
in developing the protocols for prioritizing the actions taken
in response to child abuse assessments and for law
enforcement agencies working jointly with the department at
the local level in processes for child abuse assessments. The
department of justice may provide training and other
assistance to support the activities of a child protection
assistance team.
Iowa Code § 915.35(4)(a)–(b) (2015).
Second, the evidence confirms the forensic interviewer also referred
A.W. to Dr. Harre’s office. As the majority points out, Dr. Harre testified
that A.W. was referred to her by the emergency room that saw A.W. on
July 3, 2013. However, Dr. Harre stated in her report that A.W. was
referred to the center by the emergency room. Dr. Harre indicated in the
second sentence of her report that A.W. was referred to her office by the
forensic interviewer. Moreover, as the majority opinion acknowledges,
the forensic interviewer only got involved in the investigation after the
police “made a referral call.”
The further significance of the fact that the forensic interviewer
also referred A.W. to Dr. Harre lies in Dr. Harre’s recognition that the
forensic interviewer’s primary concern is investigative, not diagnostic or
therapeutic. Dr. Harre testified as follows concerning the role of the
forensic interviewer in child abuse investigations:
Q. And is the forensic interview helpful in pursuing a
diagnosis and treatment for the child? A. It’s helpful in the
investigative aspect. Michele does—if she does recognize
that there are concerns that would benefit from a medical
assessment, she will indicate that she definitively thinks that
a medical assessment should be included in the process to
the investigative team and to the family.
32
If the purpose of referring a child for a medical assessment is purely
diagnostic or therapeutic, there would be no need for the forensic
interviewer to alert “the investigative team” of anything.
Third, the timing of the conversation between Dr. Harre and A.W.
and the information available to Dr. Harre before that conversation took
place suggests her primary concern was not diagnostic or therapeutic. If
the purpose of Dr. Harre’s conversation with A.W. was diagnostic or
therapeutic, common sense suggests Dr. Harre would have sought, or
the forensic interviewer would have provided, a copy of the forensic
interviewer’s report or a copy of the recorded interview before Dr. Harre
met with A.W. Yet Dr. Harre testified she had no knowledge of the
statements A.W. made to the forensic interviewer prior to speaking with
A.W.:
Q. What information were you provided—let me
rephrase that. Were you provided a copy or information
regarding Michele Mattox’s interview of the child prior to
your interview? A. No.
Q. So you weren’t familiar at the time of the interview
with any of the statements that were made by [A.W.] to
Michele Mattox? A. Correct.
The fact that Dr. Harre remained unfamiliar with the content of the
forensic interview is particularly conspicuous in light of the surrounding
circumstances. Dr. Harre and the forensic interviewer both work at the
Child Protection Response Center. Thus, when Dr. Harre examined
A.W., she had available to her a complete account of what happened to
A.W. in her own words prepared by someone who worked in the very
same office. The forensic interviewer recorded her interview with A.W. on
July 10. Dr. Harre met with A.W. on July 31, three weeks after the
33
forensic interviewer conducted the interview and forwarded her notes to
law enforcement.
Similarly, the delay that occurred between the alleged delinquent
act on July 2 and the conversation between Dr. Harre and A.W. suggests
the purpose of that conversation was not diagnostic or therapeutic. If
Dr. Harre’s purpose had been to assess whether A.W. required medical or
mental health treatment due to the alleged delinquent act, it seems
unlikely that Dr. Harre would have assessed A.W. on July 31, nearly a
full month after J.C. allegedly committed the delinquent act.
Fourth, Dr. Harre sent her report to the county attorney’s office.
This fact weighs significantly in favor of concluding the statements at
issue were testimonial because it confirms that Dr. Harre understood
herself to be cooperating with law enforcement in the investigation of the
allegations against J.C. In fact, Dr. Harre not only sent the report to the
office charged with prosecuting the alleged delinquent act, she also
addressed it to the very individual responsible for prosecuting J.C. This
fact belies any claim that Dr. Harre did not have a primary purpose of
assisting law enforcement in prosecuting J.C.
Finally, the circumstances existing when the conversation between
Dr. Harre and A.W. occurred are unlike those the Supreme Court relied
upon to conclude the statements in Clark were nontestimonial. Notably,
Dr. Harre interviewed and examined A.W. long after the police
department had opened an investigation into the alleged delinquent act.
In Clark, the victim made statements to his teachers prior to the
initiation of any investigation. 576 U.S. at ___, 135 S. Ct. at 2178, 192
L. Ed. 2d at 312.
Furthermore, because Dr. Harre and A.W. spoke nearly a month
after the alleged delinquent act occurred, the statements A.W. made
34
during that conversation were neither made nor elicited “in the context of
an ongoing emergency” in which “the immediate concern was to protect a
vulnerable child” from the threat of future abuse. Id. at ___, 135 S. Ct. at
2181, 192 L. Ed. 2d at 315–16. There is no evidence to suggest
Dr. Harre’s questions “were primarily aimed at identifying and ending the
threat” to A.W. in order to protect her from immediate harm. Id. at ___,
135 S. Ct. at 2181, 192 L. Ed. 2d at 316.
Additionally, the conversation between Dr. Harre and A.W. was far
from spontaneous or informal. Cf. id. A.W. made the statements at
issue in response to questions posed to her by an unfamiliar person in
an unfamiliar setting. Dr. Harre is not a teacher or primary care
physician who had a preexisting relationship with A.W. Dr. Harre’s office
is not a preschool classroom where A.W. was accustomed to spending
time. Though the conversation with Dr. Harre was unlike a formal
interrogation in that a law enforcement officer was not present, it was not
entirely informal. For example, Dr. Harre discussed the concept of
truthfulness with A.W. near the start of their conversation.
As the majority opinion points out, A.W. was very young when she
made the statements at issue in this case, and she made them outside
the presence of the police or the prosecutors charged with prosecuting
the case. I also agree with the majority opinion’s conclusion A.W.
certainly did not make the statements with the intent that they be used
to prosecute J.C. However, nothing in Clark suggests these facts are
adequate to decide this case. On the contrary, Clark acknowledges the
primary-purpose test is a necessary component of the analysis when a
defendant raises a confrontation challenge to determine whether the
statement at issue was testimonial or not. Id. at ___, 135 S. Ct. at 2180–
81, 192 L. Ed. 2d at 315.
35
In contrast to Clark, the facts of this case suggest the primary
purpose of the conversation between Dr. Harre and A.W. was to obtain
statements from A.W. that the county attorney could introduce in court.
The primary purpose of Dr. Harre’s conversation with A.W. was to gather
evidence to be supplied to the very individual tasked with prosecuting
J.C. The evidence indicates Dr. Harre understood herself to be
cooperating with law enforcement in their investigative efforts. Law
enforcement regularly relied upon her office as a tool in those efforts as
part of its standard operating procedure. Had the police department
anticipated the information Dr. Harre obtained would not be made
available for use in its investigation, surely at least one of the officers
within the department would have interviewed A.W. Though A.W. does
not speak clearly, she was able to communicate effectively to Dr. Harre
and the forensic investigator. There is no reason to believe she would
have been unable to communicate during an interview with a police
officer, or before the court in a juvenile proceeding, if appropriate
safeguards were in place.
Accordingly, because the totality of the circumstances indicate the
conversation during which A.W. made the statements contained in
Dr. Harre’s report and testimony was intended to generate a substitute
for trial testimony, I conclude those statements were testimonial. Police
officers cannot enlist third parties to act on their behalf in order to gather
statements to be used in court and later claim the statements were
nontestimonial.
For the same reason, I conclude the statements contained in
Michelle Mattox’s report and testimony were testimonial. As the majority
opinion acknowledges, Mattox conducted a forensic interview of A.W.
after police “made a referral call, and law enforcement was present when
36
it occurred.” Additionally, Mattox recorded the interview and provided a
copy of the recording to the county attorney’s office. Mattox also sent a
copy of the report she generated after the interview to both the assistant
county attorney in charge of prosecuting J.C. and the detective assigned
to investigate him. In short, the evidence indicates Mattox intentionally
played an investigative role in the law enforcement investigation into the
alleged delinquent act.
For these reasons, I would reverse the finding of delinquency and
remand the case for a new hearing.
Hecht and Appel, JJ., join this dissent.
Amended June 14, 2016 in the Interest of J.C., Minor Child J.C., Minor Child
Combined Opinion