dissenting.
The right to a fair trial is of the nature of the crime or the age of the victim. On that simple *309principle rests the integrity and reliability of every criminal trial. Constitutional rights should not melt away when the accused is charged with a particularly vile crime, even when that crime is against a child. Evidence rules should not be placed in a state of suspended animation, even when a child victim evokes universal sympathy. The Sixth Amendment’s right to confrontation applies whether the accuser is four years old or forty years old. Testimonial evidence whether from the mouth of a child or an adult must be subject to cross-examination.
By admitting the child’s statements against defendant without requiring the child’s appearance as a witness, the majority ignores not only the dictates of the United States Supreme Court’s recent decisions in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), but also this Court’s own precedent in State v. Branch, 182 N.J. 338, 865 A.2d 673 (2005), which cautioned against expanding the excited utterance exception to the hearsay rule beyond its intended purpose. By denying defendant his right of confrontation and upholding his conviction, the majority dilutes both federal constitutional and state law protections aimed at ensuring that only reliable evidence is admitted in a criminal trial. For those reasons, I respectfully dissent.
I.
October 2002 Statement
I disagree with the majority that N.M.’s answers to the questions posed by the Division of Youth and Family Services (DYFS) supervisor, particularly N.M.’s answer to the question, “Did anybody beat you?,” can be classified as excited utterances. I also disagree that N.M.’s responses to the DYFS was working hand-in-hand with the prosecutor’s office investigating possible criminal nontestimonial. Because N.M.’s statements dealt with “what happened” and not “what was happening,” and because he was in no immediate danger while he spoke with the DYFS worker, given the police presence in the *310hospital and his separation from defendant, his statements were testimonial for Sixth Amendment purposes. In my opinion, defendant had a right to cross-examine the child whose statements directly implicated him in a crime. To elucidate those points, it is necessary to examine the facts more fully.
On October 18, 2002, N.M., who was nearly four years old, spent the day at home with defendant. At about 6:00 p.m., when C.M. arrived home from work, N.M. was calmly watching television. Approximately an hour later, C.M. observed a “big red mark on the back of [N.M.’s] neck” and became frantic. C.M. and defendant immediately drove N.M. to the Community Medical Center, only a few minutes from their home.1
Approximately ninety minutes later, after N.M. had been examined, treated, and given a number of tests, including a CAT scan, a physician called the Dover Township Police Department and DYFS’s Child Abuse Control unit to report that N.M. was a possible child abuse victim. N.M. had suffered multiple, serious injuries to his body. The Police Department in turn contacted the Ocean County Prosecutor’s Office. Investigator Kenneth Hess, assigned to the Child Abuse/Sexual Assault Unit of the Prosecutor’s Office, responded to the hospital at approximately 8:45 p.m. A few minutes after his arrival, Investigator Hess saw N.M. on a stretcher and explained “who [he] was, where [he] worked, and things like that.” In response to a few casual inquiries from the investigator about how he was doing, N.M. replied, “my heart hurts,” at which point the child was in tears.
At about 9:20 p.m., Miriam Nurudeen, a supervisor in DYFS’s Special Response Unit, arrived at the hospital to investigate the report of possible child abuse. She did not follow her usual protocol of calling the prosecutor’s office because she was told that the police department had done so. At the hospital, Nurudeen first spoke to Investigator Hess “to find out how he want[ed] to proceed.” As she explained, in an abuse case, “[w]e will interview *311with the prosecutor or the prosecutor’s office will do the interview.” She also indicated that “normally, the prosecutor’s office is supposed to interview the child first, or sometimes they will ask us to interview the child.” Apparently, because Investigator Hess was talking to defendant, he “asked [Nurudeen] to go talk to [the child].”
Along with N.M.’s grandparents, who had arrived at the hospital earlier, Nurudeen entered a hospital room where she found N.M. on a bed. At first, the grandparents spoke with N.M., who was crying and saying that he wanted to go home with them. The DYFS supervisor allowed the grandparents to calm N.M. down and then asked them to leave the room so that she could question him alone.
Nurudeen initially asked N.M., “[W]hat happened?” Because “he didn’t answer,” she asked again. N.M. then replied, “I fell down in my room.” When she followed up with, “How did you fall down?,” N.M. responded that “he wanted to go to grandma’s.” Nurudeen assured N.M. that she would “let him go to grandma, or bring grandma to him, but [she] need[ed] to know what happened to him so this won’t happen again.” N.M. responded once more that he “fell down in his room.” The dialogue continued:
Nurudeen: “Okay. I understand you fell. How did you fall?”
N.M.: “From my bed.”
Nurudeen: “What were you doing?”
N.M.: [No answer]
Nurudeen: “Did anybody hit you? Did anybody beat you?”
N.M.: “Dad says nobody beats me. I fell when I was sleeping in my room.”
During this exchange, N.M. was “crying” and “scared” and continued to ask for his grandparents.
A.
While no one could disagree with the majority’s observation that N.M.’s final response to the DYFS supervisor was “heartwrench-ing,” I cannot conclude, even under the deferential abuse-of-discretion standard, that it was an excited utterance, an. exception *312to the hearsay rule. N.J.R.E. 803(c)(2). The excited utterance exception provides that “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate” is admissible. N.J.R.E. 803(c)(2).
I begin by noting that the majority mistakenly suggests that defendant had the burden of showing that the child “had the opportunity to deliberate or fabricate,” ante at 298, 949 A.2d at 774, when, in fact, the State bore the burden of proving that the child did not have the opportunity to deliberate or fabricate. The burden of persuasion rests with the proponent of hearsay evidence to show that it falls within an exception to the hearsay rule. State v. Miller, 170 N.J. 417, 426, 790 A.2d 144 (2002).
In Cestero v. Ferrara, 57 N.J. 497, 273 761 (1971), we discussed the qualifications that need to be met before an excited utterance is introduced into evidence. There, we stated that the stress or shock caused by the event must “ ‘still[ ] the reflective faculties ... so that the utterance which then occurs is a spontaneous and sincere response to the ... external shock,’ ” and the “ ‘utterance [must be] made under the immediate and uncontrolled domination of the senses.’ ” Id. at 502, 273 A.2d 761 (quoting 6 Wigmore on Evidence § 1747). We also noted that “[i]t must appear that the statements were unpremeditated emanations of the event and so connected with it as to preclude the idea that they were products of’ contrivance or calculation. Ibid.2
*313In Branch, supra, we held inadmissible as excited utterances a seven-year-old girl’s statements to an investigating detective describing a burglary suspect because (1) the burglary had occurred twenty minutes earlier; (2) the girl had already discussed the incident with her mother and another officer; (3) the detective ferreted out through questioning information that had not been spontaneously given to her mother or the other officer earlier; and (4) the words did not come “gushing out ... in an excited, unreflective manner.” 182 N.J. at 343, 365-67, 865 A.2d 673. We accepted in Branch that the girl’s “statement related ‘to a startling event,’ i.e., the burglary,” and that she “was still ‘under the stress of excitement caused by the event’ fifteen to twenty minutes after the burglary when the detective questioned her while she sat on her mother’s lap.” Id. at 365, 865 A.2d 673. We concluded, however, that the girl’s statement was not made “ “without opportunity to deliberate,’ ” an essential element of an excited utterance. Id. at 365-67, 865 A.2d 673.
I do not see a sufficient distinction between the facts in Branch and this case that would justify a different result. In the present case, N.M.’s injuries, as the trial court observed, occurred hours before the questioning by the DYFS supervisor. Before Nuru-deen’s interview of N.M., his mother, grandparents, a physician, and the prosecutor’s investigator had spoken with the child. Nurudeen had to extract responses from N.M. through repeated direct questions, and the words did not come cascading from him.
In Branch, we cautioned that “we should not dilute our eviden-tiary requirements and admit at trial an out-of-court [statement] that does not satisfy each element of the excited utterance doctrine, particularly when the declarant is not called as a witness and is available to testify.” Id. at 367, 865 A.2d 673 (emphasis *314added). In the present case, there is no suggestion that N.M. was unavailable as a witness. In Branch, in detailing the history of the excited utterance rule, we noted the American Bar Association’s observation that courts had “ ‘invoke[d] tortured interpretations of the “excited utterance” exception in order to sustain the admissibility of a child’s out-of-court statement.’ ” Id. at 362, 865 A.2d 673 (quoting State v. D.R., 109 N.J. 348, 361, 537 A.2d 667 (1988)); see also D.R., supra, 109 N.J. at 375-78, 537 A.2d 667. We also recognized in Branch, as we had suggested in D.R., that “courts, perhaps even unconsciously, felt pressed to distort the analysis of the excited utterance exception in order to justify the admission of evidence necessary to uphold convictions for particularly repugnant crimes.” Branch, supra, 182 N.J. at 362, 865 A.2d 673.
Without acknowledging so, the majority has decided to part ways with Branch, which warned about “the increasingly frequent use of the excited utterance exception as the vehicle for introducing past narratives from non-testifying declarants.” Id. at 365, 865 A.2d 673. However distressed N.M. must have been at the time he was questioned by the DYFS supervisor, given the nature of the interview and the passage of time, the statements were not a spontaneous response to an “ ‘external shock’ ” or “ ‘made under the immediate and uncontrolled domination of the senses.’” Cestero, supra, 57 N.J. at 502, 273 A.2d 761 (quoting 6 Wigmore on Evidence § 1747). As the DYFS supervisor acknowledged, N.M. did not “want to talk to [her],” which required her to ask direct questions. His responses revealed, to the degree a child of tender years can do so, reflection. That the DYFS supervisor performed her job in a proper and commendable manner does not mean that a hearsay statement is rendered admissible. The State could have called N.M. to the stand, permitting defendant the right of cross-examination, or chosen not to use the child’s statement.
Because I believe that the result in this case is dictated by Branch, I respectfully dissent from the majority’s conclusion that *315the October 18th statement to Nurudeen was an excited utterance. I would reverse defendant’s conviction because the admission of the child’s damning statements violated our evidence rules, denying defendant a fair trial. Ordinarily, that would end my analysis. However, the majority erroneously concludes that the child’s statements also do not offend the Sixth Amendment. Therefore, I now analyze those statements through the prism of the Confrontation Clause.
B.
Under both Crawford and Davis, N.M.’s answers to the DYFS supervisor’s which were intended to elicit information about a possible testimonial statements. Because N.M. was never subject to cross-examination and was apparently available as a witness, the admission of those hearsay statements violated the Sixth Amendment’s Confrontation Clause.
That constitutional provision prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford, supra, 541 U.S. at 53-54, 124 S.Ct. at 1365, 158 L.Ed.2d at 194 (emphasis added). To determine whether N.M.’s statement was testimonial, we must begin with how the United States Supreme Court has defined the term “testimonial.”
In Crawford, the Court indicated that a statement is testimonial when it is “made for the purpose of establishing or proving some fact,” such as in the case of “[a]n accuser who makes a formal statement to [a] government officerf ].” Id. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192. “Statements taken by police officers in the course of interrogations,” the Court suggested, were properly classified as testimonial. Id. at 52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193.
In Davis, the Supreme Court refined that test by defining when a statement made to the police is nontestimonial and when such a statement is testimonial. A statement is not testimonial when it is *316“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.” Davis, supra, 547 U.S. at 822, 126 S.Ct. at 2273, 165 L.Ed.2d at 237. A statement is testimonial when it is made in “circumstances objectively indicat[ing] 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.” Id. at 822, 126 S.Ct. at 2273-74, 165 L.Ed.2d at 237.
Davis makes clear that an ongoing emergency relates to events that are happening at the moment, not events that have occurred in the past. Thus, a statement relating to an ongoing emergency is a cry for statement made for the purpose of stopping a crime in a narrative of a crime already committed that can be used in a future prosecution. See id. at 827-78, 126 S.Ct. at 2276-77, 165 L.Ed.2d at 240-41. In Davis, the Supreme Court concluded that the statements made by the domestic violence victim to the 911 operator, identifying her husband as her assailant, were nontestimonial because her husband was in the process of beating her and because the “primary purpose” of the statements was to resolve an emergency in progress rather than to give information about a crime that had occurred earlier. Ibid. On the other hand, in Hammon v. Indiana, a companion case to Davis, the Court held that the oral report and affidavit provided by the domestic abuse victim to the police who responded to her home were testimonial because the police were investigating a crime that had already happened and because “there was no immediate threat” to the ongoing that the abusive husband had been separated from his wife while she made her statements. Id. at 829-30, 126 S.Ct. at 2278, 165 L.Ed.2d at 242.
The majority finds that the child’s statement to the DYFS supervisor, “seeking to end' defendant’s then-present reign of terror,” was “no different than the domestic violence abuse victim’s 911 call” in Davis. Ante at 308, 949 A.2d at 780. But there *317is a difference. The victim in Davis, supra, was being beaten as she spoke with the 911 operator. 547 U.S. at 827, 126 S.Ct. at 2276, 165 L.Ed.2d at 240. Here, unlike in Davis, N.M. did not make his statements to the DYFS supervisor to stop a beating that was happening at the moment. See ibid. Instead, his statements implicated defendant in a crime that defendant allegedly had committed hours earlier.
Indeed, the facts in this case are most similar to those in Hammon. After the prosecutor’s investigator and the DYFS supervisor arrived at the hospital in response to the call that N.M. was the possible victim of child abuse, there was no immediate danger to N.M. In addition to Nurudeen and Investigator Hess, present at the hospital to protect N.M. were a Dover Township police detective, hospital personnel, and N.M.’s grandparents. As in Hammon, N.M. was separated from his suspected abuser. See ibid. The purpose of the DYFS supervisor’s interrogation was to determine what had happened to N.M., how his serious injuries were to gather information to resolve a crime in progress.
Moreover, the statement made by N.M. is no less testimonial for Sixth Amendment purposes because the DYFS supervisor conducted the interrogation rather than the prosecutor’s investigator, who gave her permission to talk to the child. See Crawford, supra, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192 (“An accuser who makes a formal statement to government officers bears testimony[.]”). As Nurudeen explained, she conducts child abuse investigations jointly with the prosecutor’s office. According to Nurudeen, “when we respond to any child abuse cases, we are supposed to call the prosecutor’s office, and they would normally tell us how to proceed.” Sometimes she interviews a child together with a prosecutor’s investigator and sometimes the investigator speaks with the child. In this case, Nurudeen was acting jointly with Investigator Hess; there was no question that they would be sharing information. Whatever they learned would be put to two purposes: child safety, i.e. removal of the child from *318the home, if necessary, and potential criminal prosecution of the abuser.3
In my view, a DYFS supervisor who conducts an interrogation in connection with an ongoing criminal investigation by a prosecutor’s office may be considered, under certain circumstances, an agent of law enforcement for Sixth Amendment purposes. Although the United States Supreme Court in Davis, supra, noted that it was “unnecessary to consider whether and when statements made to someone other than law enforcement personnel are ‘testimonial,’ ” it did find that “[i]f 911 operators are not themselves law enforcement officers, they may at least be agents of law enforcement when they conduct interrogations of 911 callers.” 547 U.S. at 823 n. 2, 126 S.Ct. at 2274 n. 2, 165 L.Ed.2d at 238 n. 2. Just as a 911 operator would be expected to report to law enforcement officers any information learned about a past crime, undoubtedly, Investigator Hess expected Nurudeen to determine through questioning N.M. the cause of N.M.’s injuries.
In light of the facts presented to us, I can only conclude that the DYFS supervisor, for the limited purpose of questioning the child about the source of his injuries, was acting as an agent of Investigator Hess. Clearly, Nurudeen, who was collaborating with Investigator Hess, had dual primary purposes when questioning N.M.: to protect him from future harm and, if necessary, remove him from his home for his safety, and to elicit information about a possible crime. In the circumstances here, protection of the child and prosecution of the offender were inextricably intertwined.
*319I understand that the notion of dual primary purposes was not addressed in Davis. Indeed, the United States Supreme Court specifically emphasized that the test set forth in Davis “suffice[d] to decide” those eases. Id. at 822, 126 S.Ct. at 2273, 165 L.Ed.2d at 237. The Court was prescient to foresee that a multitude of variations on the theme would arise and did not expect a court, such as our own, to apply its words mechanistically to reach a result contrary to the logic of its holding. The majority’s interpretation of Davis provides an invitation to law enforcement to do an end-run around the Confrontation Clause by sending DYFS workers in to do the initial questioning in every child abuse case.4
I am not saying that persons mandated by law to report information about a crime become agents of law enforcement for Confrontation Clause purposes in every case or even most cases. However, I would hold that when a government employee, such as the DYFS supervisor here, collaborates regularly with law enforcement and, at its direction, conducts an interview of a child “to establish or prove past events potentially relevant to later criminal prosecution,” id. at 822, 126 S.Ct. at 2273-74, 165 L.Ed.2d at 237, regardless of whether the questioner had multiple purposes, the statements elicited are testimonial and must be subject to cross-*320examination. See People v. Stechly, 225 Ill.2d 246, 312 Ill.Dec. 268, 870 333, 365-67 (2007) (holding that child’s statements to registered nurse and social worker were testimonial both because they were mandated reporters and because they were cooperating with law enforcement); State v. Justus, 205 S.W.3d 872, 880-81 (Mo.2006) (concluding that statement made by'four year old to child protective services worker in interview setting was testimonial).
II.
July 2002 Statement
I disagree with the majority’s conclusion that the trial court properly analyzed N.M.’s unprompted statement in the car as an excited utterance.
C.M. testified that on July 3, 2002, at approximately 9 a.m., she was driving N.M. to her sister’s house when she heard N.M. say from the backseat, “Daddy beat me.” C.M., somewhat shocked, replied, “What?” C.M. recalled only that N.M. said “something about the nighttime.” C.M. then suggested to N.M. that he might have had a dream, and dropped him off at her sister’s house. Later that day, while playing with N.M., his grandfather noticed “hand marks on his behind.”
A.
The trial court admitted the child’s hearsay statements as excited utterances. See N.J.R.E. 803(c)(2). As previously indicated, “[t]he essential elements of an excited utterance are 1) ‘[a] statement relating to a startling event or condition’; 2) ‘made while the declarant was under the stress of excitement caused by the event or condition’; and 3) “without opportunity to deliberate or fabricate.’ ” Branch, supra, 182 N.J. at 365, 865 A.2d 673 (quoting N.J.R.E. 803(c)(2)). In my opinion, the trial court’s findings were inadequate to support the conclusion that at the time the child made the statements he was “under the stress of excitement *321caused by the event” and did not have “the opportunity to deliberate.”
First, without any supporting evidence, the trial court “infer[red] ... that the statement was made the morning after [N.M.] received [his] injuries.” The record, however, does not reveal when the “event” causing his injuries occurred. No evidence was presented concerning what activities N.M. had been engaged in before he made the statement, who had been watching him earlier that morning, what time he had gone to bed on July 2nd, whether defendant had been with N.M. the previous night, or whether N.M. was even talking about the previous night. No evidence or argument was presented regarding whether N.M. was for some reason unable to other words, unable to think about his injury as a child would during the intervening making the statements.
Second, the court found that the child was under the “[n]ervous excitement” of the event, even though the court stated it had no reason to believe that N.M. “was visibly upset or in any sort of distress” while making the statement. Although the court correctly maintained that “[n]ervous excitement” could be indicated by “a myriad of ways reflecting a person’s age, experience and psychological makeup,” without a factual or legal basis, it held that a “blurted out ... statement without prompting or questioning” was sufficient to meet the requirement of excitement in light of N.M.’s “tender age of 3.”
In determining whether a witness is still under the stress of an event and had an “opportunity to deliberate,” the court should have considered the following factors: “the time elapsed between [the] event and [the] statement, the continuing influence of the excitement caused by the [event], the circumstances surrounding the taking of the statement, and whether the statement was in response to questions.” Id. at 366, 865 A.2d 673. The court failed to analyze the issue in accordance with that standard.
The majority states that “no fair quarrel can be had that that statement possesses the spontaneity that rests at the core of the *322excited utterance exception.” Ante at 296, 949 A.2d at 773. The majority believes that because N.M.’s “blurt out” was spontaneous, it was therefore necessarily nontestimonial. Ibid. To the extent that that statement suggests that “spontaneity” trumps the three essential elements defining an “excited utterance,” I disagree. Although spontaneity may inform the discussion of those elements, it is not a substitute for them.
I would remand for a new N.J.R.E. 104 hearing for a determination concerning whether the child’s statement in the car meets the standard for admission as an excited utterance.
B.
I agree with the majority’s conclusion that the child’s remark to his mother in the car was not a testimonial statement as defined in Crawford and therefore its admission does not violate the Confrontation Clause. Because I part with the majority on the basis for reaching that conclusion, I express my reasons separately.
As explained in Crawford, supra, the Framers intended the Confrontation Clause to prohibit the introduction at trial of out-of-court testimonial statements untested by cross-examination. 541 U.S. at 53-54, 124 S.Ct. at 1365, 158 L.Ed.2d at 194. Such statements include affidavits, depositions, grand jury testimony, and certain “[statements taken by police officers in the course of interrogations.” at 51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193. The Confrontation Clause’s principal purpose was not to interdict the introduction of “[a]n off-hand ... remark” or a “casual remark to an acquaintance,” but rather those statements elicited during certain ex parte examinations that were not subject to cross-examination. Id. at 50-51, 124 S.Ct. at 1363-64, 158 L.Ed.2d at 192; see also Davis, supra, 547 U.S. at 830, 126 S.Ct. at 2278, 165 L.Ed.2d at 242. The statement at issue here was a child’s unprompted remark to his mother in the privacy of a car, not “[a]n accuser[’s] ... formal statement to government officers.” Crawford, supra, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 192; see also Stechly, supra, 312 Ill.Dec. 268, 870 N.E.2d at 366 *323(holding that statement to mother was nontestimonial because mother “was in no way acting on behalf of law enforcement, attempting to gather evidence for a future prosecution”). By the standards enunciated in Crawford and Davis, N.M.’s statement cannot be deemed testimonial.
To the extent that the majority suggests that spontaneous statements are per se nontestimonial, I disagree. Ante at 303-05, 949 A.2d at 777-78. Indeed, Davis refutes that suggestion. The United States Supreme Court specifically noted in that case that “[t]he Framers were no more willing to exempt from cross-examination volunteered testimony ... than they were to exempt answers to detailed interrogation.” Davis, supra, 547 U.S. at 822 n. 1, 126 S.Ct. at 2274 n. 1, 165 L.Ed.2d at 237 n. 1 (emphasis added). The statements made by the domestic violence victim to the 911 operator in Davis were nontestimonial not because she was speaking spontaneously, but because she was describing an ongoing husband’s assault upon it was “actually happening.” Id. at 827, 126 S.Ct. at 2276, 165 L.Ed.2d at 240. The statements given to the police by the domestic abuse victim in Hammon were testimonial, regardless of whether they were spontaneous, because the victim was relating ‘“what happened’ ” rather than “ Vhat [was] happening’ ” and because there was no “immediate threat” to her given the police presence in her home. Id. at 829-32, 126 S.Ct. at 2278-80, 165 L.Ed.2d at 242-43.
Nonetheless, for the reasons I have stated, I do not find that the admission of the child’s statement would violate the Confrontation Clause.
III.
The Confrontation Clause demands that when the State offers a testimonial statement against the accused, the reliability of that statement must be tested in the crucible of cross-examination. The Sixth Amendment does not exempt a child’s testimonial statements from its sweep. From the viewpoint of the accused who, if convicted, is facing prison, it makes no difference whether *324the testimonial statement that damns him comes from the mouth of a child or an Sixth Amendment guarantees him the right to confront his accuser. In this case, the State presented N.M.’s out-of-court testimonial statements as evidence against defendant, without giving defendant the opportunity to cross-examine him. The introduction of those statements contravened the Confrontation Clause. The result the majority reaches today, in its haste to uphold defendant’s conviction, is driven by a distorted analysis of the precedents of the United States Supreme Court and this Court.
Because certain statements by N.M. were admitted into evidence in violation of our hearsay rules and the Sixth Amendment, defendant’s convictions should be reversed. For the reasons I have expressed, I respectfully dissent.
Justices LONG and WALLACE join in this opinion. For affirmance in Part/reversal in Justice RABNER, Justices LaVECCHIA, RIVERA-SOTO and For LONG, ALBIN andThey may have arrived at the hospital as early as 6:30 p.m.
For purposes of analyzing whether the child's answers to the DYFS supervisor's questioning were excited utterances, the majority confounds the “startling beating hours the mother’s screams on learning that her child was injured, the frantic rush to the hospital, and the child's treatment at the hospital. The child's statements must relate to the startling event itself. See State v. Long, 173 N.J. 138, 158-60, 801 A.2d 221 (2002) ("The Rule requires that ... the statement [be] related to that event_ The hearsay statement need not be contemporaneous with the startling event ... as long as there is a showing that the interval was brief and the excited state of the declarant continued." (quotation omitted)). It bears repeating that the child was watching television, calmly, on his mother's return home. In order for the child's *313responses to the DYFS supervisor to be “excited utterances,” the child must have been under the continuing stress and excitement caused by the beating, not caused by the mother's discovery of the child's injury, which the majority describes as the "intervening action-filled chaos.” Ante at 297, 949 A.2d at 773. The "intervening action-filled chaos" is not a substitute for the startling event.
The majority suggests that the DYFS supervisor was the caseworker for the child for a period "of at least three-and-one half months after [the child’s] release from the hospital.” Ante at 305, 949 A.2d at 778. However, the supervisor's involvement in the case was limited to the events beginning on the evening of October 18, 2002 into the morning of October 19, 2002. That DFYS took the necessary steps to protect the child in the following months in no way alters the supervisor’s collaborative role with law enforcement on the evening she questioned-the child. Although there is nothing wrong with such collaboration, the statements elicited from the child are nonetheless testimonial.
The majority appears to be out of step with other state courts that have interpreted Crawford. For example, other courts have held that a social service worker may have more than one primary purpose in conducting an interview with a child, potentially making the statements elicited in the interview testimonial in nature. Compare In re S.P., 218 Or.App. 131, 178 F.3d 318, 328 (2008) (holding that statement made to child protective services intake worker who was collaborating with law enforcement was testimonial, noting that in such circumstances child protective workers have "concurrent 'primary purpose[s]' " and that "where an interview or evaluation process serves multiple purposes, the nature and extent of police or prosecutorial involvement in that process is a very substantial ... consideration"), with Seely v. State, 373 Ark. 141, — S.W.3d -, -, 2008 WL 963516 (Ark.2008) (holding that in case in which child sexual abuse victim was questioned by social worker prior to being given medical treatment, statement was not testimonial because social worker was not acting "as a government agent,” because no "police officer or other law-enforcement official instigate[d], observe[d], or participate^] in ... interview" and purpose of questions was to "defin[e] the scope of [a] medical examination”).