concurring in part and dissenting in part.
{¶ 48} I concur in the judgment and in paragraph two of the syllabus only, because the majority unduly limits the primary-purpose rule stated in paragraph one by referring only to a “child” declarant and expands the scope of the opinion beyond the stated issue.
*52{¶ 49} As we elaborate our understanding of Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, and our examination of Ohio law regarding what statements are testimonial for purposes of the Confrontation Clause, I believe we should articulate clear guidance for judges who must make these decisions initially. In State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, we declined to expand the definition of “testimonial statements” to include statements made to a medical professional for purposes of receiving medical treatment or diagnosis. In Stahl, we adopted the “objective witness” formulation set forth in Crawford to discover whether statements were made “ ‘under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ” Stahl at ¶ 36, quoting Crawford, 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177. We adopted the objective-witness test not because the declarant was an adult but because of the identity of the questioner — a medical professional, rather than a law enforcement officer.
{¶ 50} In analyzing whether statements are testimonial, the identity of the questioner is the first issue to resolve. Whenever the interrogators are members of law enforcement, the rule regarding any statements made by a declarant in response is governed by the primary-purpose test, as explained in Davis v. Washington (2006), 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224. If the primary purpose of the police questioning is to elicit statements that relate to an ongoing emergency, the statements are nontestimonial; if the primary purpose is to prove past events that relate to a potential criminal prosecution, they are testimonial. I agree with paragraph two of the syllabus, which makes it clear that age is irrelevant when a declarant is under police interrogation. In other words, the primary-purpose test is used if the police are questioning.
{¶ 51} Assuming the questioner is not a member of law enforcement, as was the case in Stahl, the objective-witness standard (at least for an adult) applies: whether the statement was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177.
{¶ 52} The majority opinion frames the issue of the instant ease to set forth “an appropriate test for courts to apply when faced with a Sixth Amendment challenge to statements made by a child declarant in response to police interrogation.” (Emphasis added.) Thus, to the extent that the majority discusses consequences of statements made by children to interrogators who are not law enforcement, the opinion exceeds its self-imposed boundary.
{¶ 53} In my view, it is still an open question whether children, by virtue of their reasoning abilities, should be subject to the objective-witness standard as expressed in Stahl when they are questioned by those other than police officers. *53We should hesitate to express dicta on this issue when the ramifications on any-ruling regarding testimonial statements can be so great, particularly where the child is the victim as well as the witness, in, for example, sexual abuse cases. I therefore dissent as to the portion of the opinion that exceeds the issue of the police interrogation of children.
Ramona Francesconi Rogers, Ashland County Prosecuting Attorney, and Joyce Anderson, Assistant Prosecuting Attorney, for appellant. David H. Bodiker, Ohio Public Defender, and Jill E. Stone and Craig M. Jaquith, Assistant Public Defenders, for appellee. Alice Anna Phillips, urging reversal for amicus curiae, American Prosecutors Research Institute. Lundberg Stratton, J., concurs in the foregoing opinion.