IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 50523
STATE OF IDAHO, )
)
Plaintiff-Respondent, ) Boise, September 2023 Term
)
v. ) Opinion filed: February 8, 2024
)
WILLIAM NORWOOD PARSONS, ) Melanie Gagnepain, Clerk
)
Defendant-Appellant. )
Appeal from the District Court of the Fourth Judicial District of the State of Idaho,
Ada County. Samuel Hoagland, District Judge.
The judgment of the district court is vacated and remanded.
Erik R. Lehtinen, State Appellate Public Defender, Boise, for Appellant. Elizabeth
Allred argued.
Raúl R. Labrador, Idaho Attorney General, Boise, for Respondent. Mark Olson
argued.
_______________________________________________
MOELLER, Justice.
Defendant William Parsons was found guilty by an Ada County jury on three felony counts
of lewd conduct with a minor under sixteen and one misdemeanor count of disseminating harmful
material to a minor. On appeal, he challenges the trial court’s admission of two recorded interviews
with the victim, who did not testify. He argues the video evidence was testimonial and admitted in
violation of his Sixth Amendment rights under the Confrontation Clause because he was afforded
no opportunity to confront his accuser. We agree that the videos were submitted to the jury in
violation of the Sixth Amendment. Accordingly, we vacate the conviction and remand for further
proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant “Bill” Parsons was convicted by a jury of three felony counts of lewd conduct
with a minor under sixteen, I.C. § 18-1508, and one misdemeanor count of disseminating harmful
1
material to a minor, I.C. § 18-1515. The offenses occurred between September 2018 and
September 2019 while Parsons was living with his then-girlfriend and her daughter, K.B.1 K.B.
was four years old when Parsons moved in. While living together, Parsons would often watch K.B.
in the afternoons between her return from daycare and her mother getting home from work. There
was also a three-month period during the winter where Parsons watched K.B. full-time.
On September 8, 2019, K.B., then five years old, disclosed to her mother that she had been
sexually abused by Parsons when the two of them were home alone together. K.B.’s disclosures
occurred when her mother was taking K.B. to a friend’s home for a play date. Mother and daughter
were discussing “safe touching” in the car. K.B. then told her mother that Parsons had “touched
her down there.” K.B.’s mother asked clarifying questions and K.B. made additional disclosures
indicating that Parsons had rubbed K.B.’s vagina with his fingers. She then took her daughter to
the emergency room where K.B. received medical care and was diagnosed with a urinary tract
infection. She and her mother also met with a social worker and made contact with local police
who were dispatched to the hospital. That night, K.B. and her mother moved out of their shared
apartment with Parsons.
Law enforcement later set up an appointment for K.B. with St. Luke’s Children at Risk
Evaluation Services (“CARES”) at its Regional Medical Center in Boise, Idaho. CARES provides
evaluations and treatment for children reporting abuse and neglect. It also specializes in forensic
interviewing. A CARES evaluation generally consists of three stages: (1) a forensic interview with
a medical social worker, (2) a psychosocial assessment by the same social worker, and (3) a
medical examination conducted by a certified child abuse pediatrician. All interviews are
conducted in accordance with the protocols of the National Institute of Child Health and Human
Development (“NICHD”). A CARES interview can be observed by referring agents and medical
providers through a closed-circuit television system to reduce the number of times a child must
make traumatic disclosures.
On October 2, 2019, about 24 days after K.B.’s initial disclosure, K.B. met with Lara
Foster, a medical social worker, for her CARES interview. Foster began the meeting by telling
K.B. “that after speaking with her, she would see a nurse, and that it was their job to make sure
1
To protect the privacy of the minor child, initials will be used in place of her name.
2
that the child’s body is safe and healthy.” As Foster established rapport with the child, K.B. told
Foster she was “the best doctor ever.” Foster responded by telling K.B. she was actually a social
worker who works with nurses and doctors. Foster reminded K.B. that she would meet with a
doctor after they talked. The investigating officer was able to watch the full interview through a
closed-circuit television monitoring system.
During the interview, Foster asked a range of questions pursuant to NICHD protocols that
would elicit statements from K.B. so that Foster, the CARES medical staff, and law enforcement
would “fully understand what[] happened” to K.B. The questioning elicited multiple disclosures
of sexual abuse. K.B. described instances where Parsons would remove her pants and rub her
vaginal area with his hand, perform cunnilingus on her, or would force K.B. to use her hands or
mouth on his penis until he ejaculated. K.B. also stated that Parsons showed her pornographic
videos, including child pornography, on the television in her mother’s bedroom.
Following the CARES interview, K.B. underwent a psychosocial assessment and medical
examination. Dr. Amy Barton, who performed K.B.’s medical exam, watched both of K.B.’s
interviews via closed-circuit television to gather information that would assist her medical
evaluation. Although no physical injuries were found in the examination, specialized counseling
services were recommended.
On December 10, 2019, a grand jury indicted Parsons on all counts. K.B. testified in the
grand jury proceedings, restating the same disclosures of abuse she had made to Foster in the
CARES interview. An arrest warrant immediately issued. A few days later, on December 17, 2019,
K.B. made new disclosures to her mother regarding sexual abuse by Parsons. Her mother reported
that while K.B. was looking for her cat under her mother’s bed, she saw a box containing a pink
vibrator, which K.B.’s mother and Parsons had used in their relationship. K.B. told her mother she
found something Parsons used “to hurt her,” describing and referencing the vibrator.
A second CARES interview was set up for January 9, 2020, and K.B. was again
interviewed by Foster. An investigating officer watched the interview via closed-circuit television.
K.B. told Foster that the vibrator was pink, had buttons, turned on and off, and made a motor noise.
She drew a picture of it for Foster and explained that Parsons would use the device to “tickle” her
“private part.” K.B. also repeated many of her earlier disclosures of sexual abuse by Parsons. At
one point, K.B. told Foster that Parsons’ penis touched her, and the officer watching the interview
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flashed a light to interrupt the interview’s process. On a break from the questioning, the officer
asked Foster to direct her questions to clarify from K.B. what she meant when she said that
Parsons’ penis “touched” her. At another point in the interview, K.B. danced around and told
Foster that Parsons had been put in jail because of her disclosures.
Following his arrest, Parsons pleaded not guilty and waived his right to a speedy trial. On
March 17, 2020, the State filed a notice of intent to introduce K.B.’s CARES interview and medical
records from October 2, 2019, at trial, arguing the materials—though hearsay—were admissible
under the medical diagnosis and treatment exception under Idaho Rule of Evidence 803(4).
Anticipating Parsons would raise an argument under the Confrontation Clause, the State added
that it “anticipates that K.B. will testify at trial” but argued that if she did not, the CARES
interviews were still admissible as they were “generally nontestimonial.” Parsons responded that
he “[had] no objection to the State using the CARES report to supplement [K.B.’s] testimony,”
but objected to the interviews’ admission in the event K.B. did not testify. He argued that this
would be a violation of the right to confront and cross-examine his accuser. Of note, the State
explained in its motion that it “[was] not seeking to introduce the interview video from the January
9, 2020 CARES interview.”
The district court overruled Parsons’ objection and determined that the CARES interview
and medical records from October 2, 2019, were admissible because their primary purpose was to
“provide medical care to K.B.” rather than to “establish or prove past events that were potentially
relevant to criminal prosecution.” In reaching its decision, the court emphasized the factors of
K.B.’s age, her lack of familiarity with the criminal justice system, that the interviews were
conducted by a social worker, and that the purpose of the interviews and subsequent exams were
to ensure K.B. was “safe and healthy.” The court explained:
K.B. is only five years old and there is no evidence (or assertion by the Defendant)
that she is familiar with the criminal justice system or intended her statements to be
a substitute for trial testimony. On the contrary, as in Ohio v. Clark, it is likely that
a young child in K.B.’s “circumstances would simply want the abuse to end, would
want to protect other victims, or would have no discernible purpose at all.” See
Clark, 135 S. Ct. at 2182. In addition, the interviews were conducted by CARES
employees, not law enforcement. K.B. was informed that the purpose of the
interviews and the medical examination were to make sure that she was safe and
healthy. Considering all of these factors, the [c]ourt concludes that K.B.’s
statements made during the course of the CARES interviews and medical
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examination were non-testimonial. Therefore, the introduction of these materials
(regardless of K.B.’s availability) does not violate the Defendant’s rights under the
Confrontation Clause.
The district court also noted in its decision that “[s]hould the Defendant have objections to specific
portions of the CARES interviews or record, he should so object at trial.”
On February 25, 2021, about two weeks before trial, Parsons filed a motion to continue so
that he could pursue evidence of an alternate perpetrator. Defense counsel explained to the district
court that Parsons informed him that K.B.’s “biological father was possibly a convicted juvenile
sex offender, or least that was what [Parsons] had been told by [K.B.’s mother].” Parsons claimed
that he raised the issue with his attorney a year prior, but counsel stated he did not remember that
conversation. Parsons explained that K.B. stated in the CARES interview that she was three years
old at the time of her abuse, which is when she was living with her biological father. In his motion,
Parsons told the court that he wanted “to seek to unseal the biological father’s juvenile sex offense
case, to subpoena any records from the department of health and welfare regarding any alleged
abuse that the biological father may have inflicted on the victim, and to do any other investigations
regarding this new information in order to prepare the Defendant’s defense.” The district court
denied this motion, determining that the defense could not assert an alternate perpetrator theory,
especially this late and close to trial, but they could present an alibi defense.
Parsons’ trial took place from March 8 to March 10, 2021. The State listed K.B. as a witness
and obtained the district court’s approval for a courthouse support dog to accompany K.B. during
her testimony, a motion which was granted to alleviate the child’s anxiety. However, the State
later opted not to have K.B. testify during the trial. Instead, the State offered both of her CARES
interviews as evidence under Idaho Rule of Evidence 803(4). The district court admitted both
interviews and allowed them to be shown to the jury without objection by the defense.
For the State, K.B.’s mother, the investigating officer, and K.B.’s daycare provider each
took the witness stand to corroborate the disclosures K.B. made in the CARES interviews. During
the mother’s testimony, Parsons objected to a statement concerning an incident with K.B. where
the child spontaneously compared a popsicle she was eating to Parsons’ genitals.
THE WITNESS: I was doing the dishes. And I hear her come up behind me,
because I had just given her a popsicle. And she said, “Mom, look, it looks like a
penis. It looks like Bill’s penis.”
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Parsons objected to this portion of the mother’s testimony, arguing it was hearsay. The district
court overruled his objection.
Foster also testified for the State, explaining her training, the CARES interview process,
and that the closed-circuit system was available for referring agencies “to learn about what has
happened to the child.” She explained:
Obviously there are varying reasons and there are these different entities who have
different reasons and motivations to learn about what has happened to the child.
We need to be sure that this child is not further traumatized through this
process, that we’re able to fully understand what’s happened. And so reducing the
number of times the child is talked to and making sure that the person who does
talk to the child is trained, educated and knows an appropriate way to go about it.
....
. . . we [CARES] understand why they [law enforcement] need to know this
information. So they’re at the table, they’re watching this interview, but if they want
questions to be asked that are not appropriate or do not fit within the scope of what
we’re doing for this child or just is not appropriate to ask the child, then those
questions are not asked.
When asked about the lights flashing during the second interview with K.B., Foster explained that
the detective wanted clarification on K.B.’s statements that Parsons’ penis touched her.
After the State rested, Parsons filed a Idaho Criminal Rule 29 motion for judgment of
acquittal, arguing that there was insufficient evidence to sustain a conviction. His motion rested in
large part on the fact that the CARES videos had been admitted even though K.B. did not testify.
The district court denied the motion, explaining that the weight of evidence and the credibility of
witnesses were matters for the jury. Parsons then took the witness stand and testified that he was
innocent. He explained that he had a “surrogate father” relationship with K.B. While recognizing
that K.B. was undoubtedly abused, the defense maintained that Parsons was not the one who
abused her.
During closing arguments, the State explained why it did not call K.B. as a witness. The
State told the jury that it was “not about to put [K.B.] through more trauma and mak[e] her recount
sexual abuse in a room full of 12 strangers,” when the CARES interviews already uncovered the
evidence of child abuse “in the least traumatic way possible for the child.” The State also noted
that “the defense has the same exact subpoena power as the State has” and could have called K.B.
as a witness.
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The jury found Parsons guilty on all charges. The district court then sentenced Parsons to
concurrent 40-year sentences, with 20 years fixed, on his three felony offenses for lewd conduct
with a minor. A shorter concurrent sentence was imposed for the misdemeanor offense of
disseminating harmful material to a minor.
Parsons appealed and the Idaho Court of Appeals affirmed his judgment of conviction. The
Court of Appeals determined that the admission of the CARES interviews did not violate Parsons’
rights under the Confrontation Clause because the primary purpose of the CARES interview was
for K.B.’s physical health and safety. Parsons then timely filed a petition for review with this
Court, arguing that the Court of Appeals’ decision is in direct conflict with State v. Hooper, 145
Idaho 139, 176 P.3d 911 (2007), and that the CARES interviews were testimonial and admitted in
violation of the Confrontation Clause. Parsons also maintains that the Court of Appeals’ decision
was clearly in error because “it relied upon evidence that did not exist” in the record. For example,
he notes that the Court of Appeals’ opinion references and relies on trial testimony from “K.B.’s
grandmother,” who never testified at Parsons’ trial. This Court granted the petition for review.
II. STANDARDS OF REVIEW
When a case comes before this Court on a petition for review from the Court of Appeals,
“this Court gives serious consideration to the views of the Court of Appeals, but directly reviews
the decision of the lower court.” State v. Ochoa, 169 Idaho 903, 912, 505 P.3d 689, 698 (2022)
(quoting State v. Oliver, 144 Idaho 722, 724, 170 P.3d 387, 389 (2007)).
The question before this Court is whether the admission of a recorded CARES interview
violated the defendant’s right to confront an adverse witness under the Confrontation Clause, as
contained in the Sixth Amendment of the United States Constitution. As a constitutional issue, this
is a question of law freely reviewed by this Court. See State v. Stanfield, 158 Idaho 327, 331, 347
P.3d 175, 179 (2015); Hooper, 145 Idaho at 142, 176 P.3d at 914. However, even when a
constitutional right is asserted, this Court defers to the trial court’s factual findings unless those
findings are clearly erroneous. Hooper, 145 Idaho at 142, 176 P.3d at 914.
III. ANALYSIS
Parsons asserts several errors on appeal, asking this Court to vacate his conviction and
remand for a new trial. He first argues that “the district court violated his Sixth Amendment right
to confront the witnesses against him by admitting K.B.’s CARES interview.” Citing to Hooper,
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145 Idaho 139, 176 P.3d 911, Parsons argues that K.B.’s statements in the interview were
testimonial in nature because “they were made for the primary purposes of criminal investigation
and prosecution.” The State responds that the Confrontation Clause only applies to testimonial
statements and contends K.B.’s interviews were conducted for medical treatment and diagnosis.
While not addressed by the parties in their briefing, save for a footnote from the State, there is an
additional preservation issue that was discussed by the Court of Appeals as to whether Parsons
objected to the admission of both CARES interviews or only to the first. As that issue impacts the
scope of Parsons’ arguments before this Court, we will address it first.
A. Parsons failed to object to the admission of the second CARES interview, thus waiving
that issue for appeal.
“This Court will not consider issues raised for the first time on appeal.” State v. Jeske, 164
Idaho 862, 868, 436 P.3d 683, 689 (2019) (citation omitted). This Court recently held that “a party
preserves an issue for appeal by properly presenting the issue with argument and authority to the
trial court below and noticing it for hearing . . . .” State v. Miramontes, 170 Idaho 920, 924–25,
517 P.3d 849, 853–54 (2022). A party may also preserve an issue for appeal when the trial court
issues an adverse ruling. Id. As we have explained:
To properly preserve and present to this [C]ourt claimed errors of this nature, timely
and proper objection should be made, first so the trial court may have an
opportunity to prevent or if possible eradicate such error by admonition or
instruction, and second, that there be adverse ruling or action by the trial court for
review by this court.
Id. at 925, 517 P.3d at 854 (alteration in original) (quoting Stewart v. City of Idaho Falls, 61 Idaho
471, 478–79 103 P.2d 697, 700 (1940)). Where “a party fails to preserve an issue for appeal via a
timely objection, the issue will only be reviewed and reversed on appeal if it constitutes
fundamental error.” State v. Sheahan, 139 Idaho 267, 280–81, 77 P.3d 956, 969–70 (2003)
(quoting State v. Lovelass, 133 Idaho 160, 167, 983 P.2d 233, 240 (Ct. App. 1999)).
Parsons did not object to the admission of either CARES interview during his trial. He
expressly consented to each admission and their publications to the jury. However, prior to trial,
he did object to the admission of the first “CARES report” from October 2, 2019, when the State
brought its motion in limine. Parsons argues that his pretrial objection implicitly extended to the
second CARES interview from January 9, 2020. We do not agree.
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The State’s first motion in limine expressly stated that it was only seeking to introduce the
first CARES interview. As the State explained in its motion: it “[was] not seeking to introduce the
interview video from the January 9, 2020 CARES interview.” Parsons’ pretrial objection
references the “CARES report” or “CARES interview” only in the singular. He filed the objection
in response to the State’s notice, which was only seeking to admit the first interview. While the
district court’s decision referred to “interviews” and “reports” in the plural, we do not agree that
this changes Parsons’ failure to object to the second interview’s admission at trial because the
plural usage by the court in its ruling plainly references only the medical, psychosocial, and
forensic interviews and examinations conducted by CARES on October 2, 2019. There is simply
no objection to the second interview to be found anywhere in the record. Indeed, the district court
never made a ruling on the admissibility of the second interview because the issue was never
presented to it before or during the trial.
Therefore, we conclude that the admissibility of the second CARES interview, lacking both
an objection and an adverse ruling, has been waived for review on appeal. Parsons has also failed
to raise fundamental error. Accordingly, we will limit the scope of our constitutional examination
to the first CARES interview.
B. By admitting the first CARES interview, the district court violated Parsons’ rights
under the Confrontation Clause because the primary purpose of the interview was
investigatory rather than medical.
Parsons alleges a violation of his Sixth Amendment right under the Confrontation Clause
of the U.S. Constitution. The Idaho Constitution “does not contain a confrontation clause similar
to that found in the United States Constitution; therefore, this issue is analyzed solely under the
United States Constitution.” State v. Stanfield, 158 Idaho 327, 332, 347 P.3d 175, 180 (2015). The
Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him.” U.S. CONST. amend. VI. Confrontation is a
fundamental right that applies equally to state prosecutions. Stanfield, 158 Idaho at 332, 347 P.3d
at 180. The U.S. Supreme Court has explained that the Confrontation Clause was directed “at the
principal evil” of the “civil-law mode of criminal procedure, and particularly its use of ex parte
examinations as evidence against the accused.” Crawford v. Washington, 541 U.S. 36, 50 (2004).
Thus, “[t]he Sixth Amendment must be interpreted with this focus in mind.” Id.
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Because the Confrontation Clause applies only “to ‘witnesses’ against the accused—in
other words, those who ‘bear testimony,’ ” the Confrontation Clause is restricted to “statements
that are testimonial.” Stanfield, 158 Idaho at 332, 347 P.3d at 180 (first quoting Crawford, 541
U.S. at 51; and then citing Davis v. Washington, 547 U.S. 813, 823–24 (2006)). “ ‘Testimony,’ . . .
is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving
some fact.’ ” Crawford, 541 U.S. at 51 (brackets in original) (quoting 2 N. Webster, An American
Dictionary of the English Language (1828) (brackets in original)). Thus, “[a]n accuser who makes
a formal statement to government officers bears testimony in a sense that a person who makes a
casual remark to an acquaintance does not.” Id. The decision in Crawford “limited the
Confrontation Clause’s reach to testimonial statements and held that in order for testimonial
evidence to be admissible, the Sixth Amendment ‘demands what the common law required:
unavailability and a prior opportunity for cross-examination.’ ” Michigan v. Bryant, 562 U.S. 344,
354 (2011) (quoting Crawford, 541 U.S. at 68). If the statement is determined to be testimonial,
“then its admission is permitted only if the declarant is unavailable and the defendant has had a
prior opportunity to cross-examine the declarant.” Stanfield, 158 Idaho at 332, 347 P.3d at 180. If
nontestimonial, the admissibility of a statement is governed by state and federal rules of evidence.
Bryant, 562 U.S. at 359; Stanfield, 158 Idaho at 332, 347 P.3d at 180.
In Crawford, the United States Supreme Court did not provide an exhaustive definition or
list of “testimonial” statements, but left formulating a comprehensive definition for “another day.”
541 U.S. at 68. Instead, the Supreme Court provided a “core class” of testimonial statements,
including ex parte in-court testimony or its functional equivalent, extrajudicial statements in
formalized testimonial materials, and “statements that 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.” 541 U.S. at 51–52. The Supreme Court has continued to build on this list over
the years, most recently articulating that a statement is testimonial where “in light of all the
circumstances, viewed objectively, the ‘primary purpose’ of the conversation was to ‘create an
out-of-court substitute for trial testimony.’ ” Ohio v. Clark, 576 U.S. 237, 245 (2015) (internal
brackets omitted) (quoting Bryant, 562 U.S. at 358) (internal brackets omitted). Thus, “[w]hether
a statement is testimonial is determined by looking at the statement’s primary purpose and its
similarities to traditional testimony.” Stanfield, 158 Idaho at 332, 347 P.3d at 180 (emphasis added)
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(citing Davis, 547 U.S. at 822). This “primary purpose” test requires a court to examine all the
objective circumstances and determine whether “the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.” Hooper, 145
Idaho at 143–44, 176 P.3d at 915–16.
This inquiry is objective and wholly depends on “matters of objective fact.” Bryant, 562
U.S. at 360. It does not delve into a subjective analysis of the statements and parties to establish
the actual purpose or motive of the individuals involved in a particular encounter. Id. Thus, a
court’s relevant inquiry to determine the “primary purpose of the interrogation” is to assess “the
purpose that reasonable participants would have had, as ascertained from the individuals’
statements and actions and the circumstances in which the encounter occurred.” Id. “[T]he most
important instances in which the [Confrontation] Clause restricts the introduction of out-of-court
statements are those in which state actors are involved in a formal, out-of-court interrogation of a
witness to obtain evidence for trial.” Id. at 358. There are compelling reasons for this restriction:
Even where such an interrogation is conducted with all good faith, introduction of
the resulting statements at trial can be unfair to the accused if they are untested by
cross-examination. Whether formal or informal, out-of-court statements can evade
the basic objective of the Confrontation Clause, which is to prevent the accused
from being deprived of the opportunity to cross-examine the declarant about
statements taken for use at trial.
Id.
For instance, in Davis, the U.S. Supreme Court distinguished nontestimonial statements
from testimonial ones in the context of abuse victims through several objective factors. The facts
in Davis established that there was an ongoing emergency where a woman called 911 to report a
domestic disturbance with her former boyfriend, Davis, “usin’ his fists” and “jumpin’ on [her]
again.” 547 U.S. at 817–18. Important to the Court’s analysis was that the victim described events
as they were happening over a 911 call, the statements were informal, and the statements were
elicited to resolve the present emergency. Id. at 827–28. Thus, the primary purpose of the
statements made during the 911 conversation in Davis was to respond to an ongoing emergency—
not to prepare testimony for a later trial. Id. This was in contrast to a simultaneous decision from
the U.S. Supreme Court in Hammon v. Indiana, where the objective factors indicated the primary
purpose for questioning a domestic abuse victim, by law enforcement, was to establish or prove
past events potentially relevant to later criminal prosecution. 547 U.S. at 822. In Hammon, there
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was no emergency in progress. The officer was establishing what had happened, rather than what
was happening. It was a formal interrogation in the victim’s living room and her husband was kept
in a separate room by another officer. Finally, the statements recounted how potentially criminal
past events began and progressed—a purpose “the testifying officer expressly acknowledged.” 547
U.S. at 829–32.
As the Supreme Court has acknowledged, “there may be other circumstances, aside from
ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-
of-court substitute for trial testimony.” Bryant, 562 U.S. at 358 (emphasis in original). When
“making the primary purpose determination, standard rules of hearsay, designed to identify some
statements as reliable, will be relevant.” Id. at 358–59. Additionally, “the statements and actions
of both the declarant and interrogators provide objective evidence of the primary purpose of the
interrogation,” as do the circumstances in which an encounter occurs. Id. at 367. Ultimately, the
question before us is whether, in light of all the objective circumstances, “the primary purpose of
the interrogation is to establish or prove past events potentially relevant to later criminal
prosecution.” Hooper, 145 Idaho at 143–44, 176 P.3d at 915–16. See also Clark, 576 U.S. at 244
(citation omitted); Bryant, 562 U.S. at 357 (citation omitted). “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.” Bryant, 562 U.S. at 359.
Parsons points to State v. Hooper, where this Court previously addressed the question of
whether videotaped statements made by a child during a forensic interview at a sexual abuse
response center were testimonial for purposes of the Sixth Amendment. 145 Idaho at 141, 176 P.3d
at 913. In Hooper, we recognized that “such interviews” can have a two-fold purpose: “medical
treatment and forensic use,” with statements made to medical professionals having “frequently
been held to be nontestimonial when the primary purpose was treatment, even where police
officers referred the child to the medical personnel.” Id. at 145, 176 P.3d at 917. However, the
Hooper Court ultimately determined that the child’s statements in her forensic interview were
testimonial and had been admitted by the trial court in error where the defendant had no
opportunity to cross-examine the witness. Id. at 141, 145–46, 176 P.3d at 913, 917–18. This
Court’s decision turned on the primary purpose test as outlined in Davis, with the totality of the
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circumstances “indicat[ing] that the interview was geared toward gathering evidence, rather than
providing medical treatment.” 145 Idaho at 145, 176 P.3d at 917.
In Hooper, a mother discovered her six-year-old child and the father locked in a bathroom,
and she suspected sexual abuse had occurred. Id. at 140, 176 P.3d at 912. She contacted police and
they arranged for a medical examination and forensic interview at the Sexual Trauma Abuse
Response (“STAR”) Center in Ontario, Oregon. Id. During the medical examination, a doctor
discovered “breaking and swelling in the rectal area.” Id. at 141, 176 P.3d at 913. A nurse and
forensic interviewer then conducted a videotaped interview with the child while a detective
observed the questioning from another room via a closed-circuit system. Id. The State later served
notice of its intent to introduce the videotaped interview and the child’s hearsay statements based
on Idaho Rules of Evidence 803(24) and 804(5). Id. After the child was declared unavailable
(having been unable to take the oath), the trial court admitted the videotaped interview over the
defendant’s objection. Id.
On appeal, several factors from these events were important to this Court in reaching its
determination that the forensic interview in Hooper implicated the Confrontation Clause. Id. at
146, 176 P.3d at 918. In questioning the defendant, detectives told him that further action in the
investigation would depend on what his daughter revealed in the STAR Center interview. Id. at
145, 176 P.3d at 917. The detective was able to watch the interview via a closed-circuit system.
The nurse conducting the forensic interview informed the child that there was a camera in the room
that would record everything, and that “her friend John [Detective Plaza] [was] watching to make
sure that [she] remember[ed] to ask all the questions [she] need[ed] to ask.” Id. The nurse also
emphasized that the child needed to tell the truth. During the course of the interview, the nurse
asked details about the event in question—including the identity of the perpetrator—but never
inquired as to the child’s medical condition. Id. At the interview’s conclusion, the nurse left the
room to consult with the detective and then returned to ask more questions. Physical evidence,
including swabs, were taken at the end of the interview. Finally, while the interview occurred soon
after the mother contacted police, this Court determined that there was “no evidence” that the
interview was done to assist police in an ongoing emergency. Id. at 145–46, 176 P.3d at 917–18.
We agree with Parsons that Hooper is controlling here and that many of these same factors
are present. For example, both cases dealt with a forensically trained interviewer conducting an
13
examination that was arranged, and observed, by law enforcement. K.B. and the child victim of
Hooper were close to the same age (five and six years old, respectively). Both were taken by their
mothers to a center specializing in treatment and evaluations for sexual abuse. Like in Hooper,
Foster’s questioning asked details about the alleged abuse, including the identity of the perpetrator,
where acts of abuse occurred, how often acts were done, and so on. The interview’s purpose was
for CARES and law enforcement “to fully understand what’s happened” to K.B. In short, Foster’s
questioning was not only used for diagnostic purposes, but was a mechanism to build a criminal
case against Parsons, who had already been identified as the prime suspect 24 days earlier.
The timeline of K.B.’s treatment also places this case in line with Hooper. In Hooper, the
medical examination preceded the child victim’s forensic interview, which indicated the primary
purpose of the nurse’s later questioning was purely forensic and “would provide a substitute for
the child’s live testimony in court.” 145 Idaho at 146, 176 P.3d at 918. In some contrast here, Dr.
Barton observed K.B.’s interviews to better inform her upcoming medical examination and
treatment of K.B., who underwent both physical and psychological evaluations. Importantly,
however, K.B. had already received medical care at the emergency room when she first disclosed
the abuse, nearly a full month before the CARES examinations. Not only was there no evidence
of an ongoing medical emergency, K.B.’s interview occurred 24 days after she had already
received medical attention. Hence, we cannot agree with the State’s contentions—or the dissent’s
conclusions—that K.B.’s statements were made primarily for a medical purpose. Quite the
opposite—the questioning was forensic and elicited to establish or prove past events potentially
relevant to a later criminal prosecution. While K.B. may have referred to Foster as the “best doctor
ever,” and was assured that the CARES team would make sure K.B.’s body was “safe and healthy,”
these factors do not outweigh the evidence that K.B. was brought to CARES at the arrangement
of law enforcement with a primary purpose of “gathering evidence, rather than providing medical
treatment.” Id. at 145, 176 P.3d at 917. This conclusion is reinforced by the fact that K.B. had
already received medical care in the weeks prior, a factor that the dissent’s analysis does not
consider.
Our decision today is not altered by this Court’s recent decision in State v. Christensen,
166 Idaho 373, 380, 458 P.3d 951, 958 (2020), or the United States Supreme Court’s decision in
Ohio v. Clark, 576 U.S. 237 (2015). Both decisions followed Hooper and dealt with hearsay
14
statements from a child—either in the context of hearsay exceptions (Christensen) or the
Confrontation Clause (Clark). Both of these decisions are also cited by the parties as either
controlling or inapplicable to the case at bar. While each provides guidance, neither abrogates
Hooper or dictates that we vary from its application.
In State v. Christensen, we examined the admissibility of two recorded CARES
interviews—both performed by Lara Foster, the same interviewer here—of twin sisters who were
inappropriately touched by their step-grandfather. 166 Idaho at 375, 458 P.3d at 953. We
ultimately concluded that the twins’ statements were admissible under Idaho Rule of Evidence
803(4) because they had been made for the purpose of medical diagnosis or treatment. Id. at 376–
78, 458 P.3d at 954–56 (discussing State v. Kay, 129 Idaho 507, 518, 927 P.2d 897, 908 (Ct. App.
1996)). Importantly, Christensen did not implicate the Confrontation Clause because both girls
testified at trial. Id. at 376, 458 P.3d at 954. The decision concerned only whether the district court
abused its discretion in admitting the CARES interviews under the hearsay exception for
statements made for the purpose of medical diagnosis or treatment. Id. at 376–78, 458 P.3d at 954–
56.
Pertinent to this case was our determination in Christensen that the twins’ statements from
the CARES interviews were admissible “because their statements . . . [were] gleaned from a
process designed to aid and inform treatment and diagnosis of the child’s medical condition.” Id.
at 379, 458 P.3d at 957. We recognized that “CARES interviews serve a dual medical and forensic
purpose,” noting that in the hearsay context, “the ‘forensic’ moniker given to these interviews does
not supplant the prevailing medical underpinning which supports their admission under Rule
803(4).” Id. at 379–80, 458 P.3d at 957–58. “Stated another way, while there is clearly a dual
purpose to CARES interviews, to both gather information and inform medical treatment, the
information-gathering purpose does not override the medical necessity of such interviews.” Id. at
380, 458 P.3d at 958. We stressed that the CARES interviews have a dual purpose—serving both
medical and forensic needs—but that the CARES interviews in question were predominantly
medical for purposes of Rule 803(4). This decision was on par with our statement in Hooper that
“such interviews” have a two-fold purpose: “medical treatment and forensic use,” with statements
made to medical professionals having “frequently been held to be nontestimonial when the primary
15
purpose was treatment, even where police officers referred the child to the medical personnel.”
145 Idaho at 145, 176 P.3d at 917.
Our decision in Christensen remains the rule when addressing CARES interviews in the
hearsay context. However, while the State would have us read Christensen as recognition that
CARES interviews are purely or predominantly medical in purpose, we have not abandoned our
prior statements that CARES interviews—as well as similar interviews of abuse victims—serve
dual purposes, both medical and forensic. Christensen may be generally instructive here to
understand and distinguish the dual medical and forensic nature of such interviews, and informs
our analysis of K.B.’s interview under the primary purpose test, but it is not a case that stands for
letting a medical hearsay exception eclipse a defendant’s Sixth Amendment right to confront the
witnesses against him.
“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.” Clark, 576 U.S. at 253
(Scalia, J., concurring). Undoubtedly, CARES provides a crucial service to our state and
community by helping children disclose horrific abuse and begin treating their trauma. To reduce
the need for a child to repeat the story—and incur that trauma—multiple times is a noble and
challenging mission. Yet the weight of the factors before us establishes that K.B.’s statements in
the first CARES interview were primarily for a testimonial purpose of establishing and gathering
evidence against Parsons rather than treating K.B.’s medical needs, and thus implicated the
defendant’s constitutional rights. To accept the State’s argument and tip the scale the other way
risks “smuggl[ing] longstanding hearsay exceptions back into the Confrontation Clause,” see id.
at 253, and undermining a fundamental right that predates our Constitution. It is only outside the
scope of the Confrontation Clause that the admissibility of a statement becomes the concern of our
state rules of evidence. Bryant, 562 U.S. at 359.
Also pertinent to our decision today is Clark, where the U.S. Supreme Court addressed
hearsay statements from a victim of child abuse, and whether the child’s statements to his teachers
were testimonial and implicated the Confrontation Clause. 576 U.S. 237. The Clark decision dealt
with two small children (L.P., a 3-year-old boy, and A.T., an 18-month-old girl) who were
violently abused by the mother’s boyfriend, Clark, when they were left in his care. Id. at 240–41.
16
While at preschool, teachers noticed marks on L.P.’s body that indicated abuse. They asked, “Who
did this? What happened to you?” L.P. indicated Clark was his abuser, and the teachers contacted
a child abuse hotline. Id. When Clark came to collect L.P. from school, Clark had a “ ‘stare-down’
with the social worker,” and “bolted out the door with L.P.” Id. at 246 n.2. Social services found
the two children the next day and took them to the hospital for treatment of multiple injuries. Id.
at 241, 246 n.2. L.P. did not testify at trial, but the State introduced his statements to his teachers
as evidence of Clark’s guilt. Id. at 241. Clark moved to exclude L.P.’s statements under the
Confrontation Clause, which was denied by the trial court. Id. at 242. A jury convicted Clark on
multiple counts of abuse and the trial court sentenced him to 28 years imprisonment. Id. On appeal,
Clark’s judgment of conviction was reversed by the Ohio Supreme Court, which ultimately
determined that “L.P.’s 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 U.S. Supreme Court reversed this decision. It applied the primary purpose test,
explaining that “[i]n the end, the question is 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 245 (brackets in original) (quoting Bryant, 562 U.S. at 358). The
Supreme Court focused on several factors to conclude that L.P.’s statements were not testimonial.
First, L.P.’s statements occurred in an ongoing emergency where his “teachers needed to know
whether it was safe to release L.P. to his guardian at the end of the day,” and “they needed to
determine who might be abusing the child.” Id. at 246. The immediate concern and purpose of the
questioning “was to protect a vulnerable child who needed help” by “identifying and ending the
threat.” Id. at 247.
Likewise, in Clark there was no indication that the conversations were to gather evidence
for the abuser’s prosecution. Indeed, the fact that L.P. was speaking with his teachers, rather than
law enforcement, was a “highly relevant” factor to establish the nontestimonial context of the
child’s statements. See id. at 249. The Court explained that “[s]tatements 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.” Id. L.P.’s age was also
an important factor to the Court because “[s]tatements by very young children will rarely, if ever,
17
implicate the Confrontation Clause.” Id. at 247–48. Part of this reasoning was that “[f]ew preschool
students understand the details of our criminal justice system.” Id. at 248.
In sum, like Christensen, Clark is distinguishable by its facts from the case at bar. Clark
contemplated an ongoing emergency where teachers needed to quickly ascertain whether it was
safe to release a three-year-old boy into the hands of his caretaker at the end of the day. The
statements were informal and made to protect a vulnerable child from an imminent threat. While
the dissent analogizes K.B.’s situation to L.P.’s, it fails to frame Clark in this emergency light.
There is simply no evidence that K.B.’s CARES interview was part of an ongoing emergency or
that she was at risk of imminent harm. K.B.’s interview occurred well after her emergency room
visit and first contact with police, and weeks after her mother had left the apartment they shared
with Parsons. K.B. had been removed from her abuser’s reach and investigations were proceeding
against him. Further, while still a young child, K.B. was two years older than L.P. at the time she
made her statements. As any parent knows, there is a significant difference between the awareness
and understanding of a five-year-old and that of a three-year-old. This was evidenced in the second
CARES interview when K.B. danced for Foster to celebrate the fact that her statements put Parsons
in jail. K.B. may have initially thought she was talking to a doctor, but many of the things she was
asked to discuss were not medical.
We also note with concern that the district court’s analysis, as well as the State’s argument
on appeal, improperly introduce a subjective factor to conclude that K.B.’s statements were not
testimonial because she did not intend them to be a substitute for trial testimony. We recognize
that Clark states that “it is extremely unlikely that a 3-year-old child in [the victim’s] position
would intend his statements to be a substitute for trial testimony,” and that “a young child in these
circumstances would simply want the abuse to end, would want to protect other victims, or would
have no discernible purpose at all.” 576 U.S. at 248 (emphasis added). However, the Supreme
Court’s mention of a child’s intention was clearly not meant as a subjective finding about the
specific three-year-old child in that case; it was just a general example used to explain the
justification for the rule. As was established by the U.S. Supreme Court in Bryant, the primary
purpose test is objective, not subjective, and Clark should be read in that light. A court’s relevant
inquiry in assessing the “primary purpose of the interrogation” is to determine “the purpose that
reasonable participants would have had, as ascertained from the individuals’ statements and
18
actions and the circumstances in which the encounter occurred.” Bryant, 562 U.S. at 360. Courts
should not engage in a subjective analysis of whether a participant’s statements were actually
intended to be used for prosecution, or not. Id.
Based on the foregoing facts, the videotaped statements made by K.B. in the CARES
interview were testimonial. We reach this conclusion based on our decision in Hooper, as well as
the decisions of Crawford, Davis, Bryant, and Clark. This is not the “application of hindsight” by
the majority, based on the mere fact that because the statements were ultimately presented to a jury
“they were obviously testimonial,” as suggested by the dissent. Rather, the totality of the
circumstances shows that the primary purpose of eliciting K.B.’s statements during the first
CARES interview was to establish or prove past events potentially relevant to later criminal
prosecution rather than to provide medical care, as the State contends. Thus, K.B.’s statements are
admissible only if she were unavailable and only if Parsons had a prior opportunity to cross-
examine the witness. Crawford, 541 U.S. at 68 (“[T]he Sixth Amendment demands what the
common law required: unavailability and a prior opportunity for cross-examination”); Hooper,
145 Idaho at 146, 176 P.3d at 918. Since Parsons had no prior opportunity to cross-examine K.B.,
it was error to admit the CARES interview at trial. Of note, the State was well prepared to have
K.B. testify at trial, much like she had at the grand jury proceedings, and this time with the
assistance of a support dog. Had the State proceeded with its original course, and pursuant to
Hooper, we would likely have no error to review.
We caution that this decision should not be read as being hostile to victim interviews like
the CARES interview at issue here. We reiterate that such interviews can serve important “dual
medical and forensic purposes.” Christensen, 166 Idaho at 379–80, 458 P.3d at 957–58. As we
explained in Hooper and Christensen, such interviews are admissible at trial when properly
conducted and offered as evidence in a manner consistent with the defendant’s Sixth Amendment
rights. Here, the circumstances surrounding this interview and its admission at trial fall short of
the Sixth Amendment standard, requiring us to vacate the judgment of conviction. Because this
issue is dispositive to the case at bar, we need not address Parsons’ remaining issues on appeal.
IV. CONCLUSION
For the foregoing reasons, we conclude that the introduction of K.B.’s statements from the
first CARES interview violated Parsons’ rights under the Confrontation Clause. Based on the
19
totality of the circumstances, the interview—conducted 24 days after the victim was first seen by
medical personnel—was testimonial in nature because it was conducted for the primary purpose
of developing evidence in an ongoing criminal investigation. Inasmuch as K.B. was an available
witness, admitting this video without providing the defense an opportunity to cross-examine her
was an error of constitutional magnitude and warrants a new trial. Accordingly, we vacate the
judgment of conviction and remand for proceedings consistent with this opinion.
Justices BRODY, ZAHN and STEGNER CONCUR.
BEVAN, Chief Justice, dissenting in part.
This appeal involves Parsons’ Sixth Amendment right under the Confrontation Clause to
confront his five-year-old accuser, K.B., about two recorded CARES interviews admitted at his
trial. I agree with the majority’s conclusion that Parsons’ challenge to the second CARES interview
is not preserved. That said, because I believe that K.B.’s statements during the first CARES
interview were not testimonial, I respectfully dissent from the majority’s holding that those
statements implicate the Confrontation Clause.
“The Confrontation Clause provides that ‘[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with witnesses against him.’” State v. Spencer, 169 Idaho 505,
512, 497 P.3d 1125, 1132 (2021) (quoting State v. Stanfield, 158 Idaho 327, 332, 347 P.3d 175,
180 (2015)); see U.S. CONST. amend. VI. “A reviewing court’s inquiry under the Confrontation
Clause focuses on the nature of the statements being made and whether the statement was
testimonial.” Id. (citing Davis v. Washington, 547 U.S. 813, 824 (2006)). “Also, the Confrontation
Clause is not triggered unless such testimonial statements are being offered for the truth of the
matter asserted in them.” Id. (citing Williams v. Illinois, 567 U.S. 50, 57–58 (2012)).
Although the Supreme Court has not provided a comprehensive definition of “testimonial,”
the Court has offered some guiding principles, including what it considers a “core class” of
testimonial statements. A non-exhaustive list of statements within that class includes:
[E]x parte in-court testimony or its functional equivalent—that is, material such as
affidavits, custodial examinations, prior testimony that the defendant was unable to
cross-examine, or similar pretrial statements that declarants would reasonably
expect to be used prosecutorially; . . . “extrajudicial statements . . . contained in
formalized testimonial materials, such as affidavits, depositions, prior testimony,
or confessions,” White v. Illinois, [502 U.S. 346, 365 (1992)] (THOMAS, J., joined
20
by SCALIA, J., concurring in part and concurring in judgment); “[and] statements
that 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[.]”
Crawford v. Washington, 541 U.S. 36, 51–52 (2004) (citations to briefs omitted).
One notable point from this pronouncement nearly 20 years ago is that these “core” types
of statements are viewed from what “declarants would reasonably expect . . .” or statements that
an “objective witness” would believe about her or his statement’s availability for later use at trial.
Id. (emphasis added). This focus on declarants or an objective witness should not be lost on this
Court when analyzing statements made by children to third parties. The declarant’s state of mind,
(while viewed objectively) should be part of this equation. As Justice Scalia reminded us in
Crawford, “[t]he constitutional text, like the history underlying the common-law right of
confrontation, thus reflects an especially acute concern with a specific type of [testimonial] out-
of-court statement.” Id. at 51 (emphasis added). That acute concern is especially borne out in cases
involving children, as the Supreme Court noted in Ohio v. Clark, 576 U.S. 237, 244 (2015).
In cases after Crawford, the Court developed the “primary purpose” test to determine
whether a non-core statement is testimonial. See Davis v. Washington, 547 U.S. 813 (2006), and
Hammon v. Indiana, 547 U.S. 813 (2006). In developing this area of the law, the Court recognized
that in applying the primary purpose test, a reviewing court must consider “all of the relevant
circumstances.” Michigan v. Bryant, 562 U.S. 344, 369 (2011). Then in Ohio v. Clark, a case
involving a child’s statement to his teachers, the Court elaborated that a statement is testimonial if
the circumstances objectively demonstrate that the “primary purpose” of the statement “is to
establish or prove past events potentially relevant to later criminal prosecution.” Clark, 576 U.S.
at 244. If that purpose is not present, the statement is non-testimonial, and its admissibility is
governed by state and federal rules of evidence, not the Confrontation Clause. Bryant, 562 U.S. at
359. As applied here, I disagree with the majority that the primary purpose of K.B.’s statements
during the first CARES interview was to establish or prove past events potentially relevant to a
later criminal prosecution. Absent that primary purpose, Parsons’ right to confront K.B. is not
violated by admission of her statements to the CARES interviewer.
I view the primary purpose test as recognizing that a statement may be given under
circumstances that have more than one purpose. We recognized this truth in State v. Christensen,
166 Idaho 373, 379, 458 P.3d 951, 957 (2019) (“CARES interviews serve a dual medical and
21
forensic purpose. . . .”). The majority glosses over the “primary” nature of the analysis. “Primary”
means “of first rank, importance, or value: PRINCIPAL” (Primary, MERRIAM-WEBSTER (2022)).
In maintaining that the primary purpose of the first CARES interview was to gather
statements that would substitute for K.B.’s testimony in court, Parsons argues, and the majority
agrees, that State v. Hooper, 145 Idaho 139, 176 P.3d 911 (2007), controls this case. Parsons argues
that “just like in Hooper”: (1) “the examination was arranged by police detectives”; (2) the
examination was “conducted by forensically trained personnel”; (3) the detective observed the
examination; (4) K.B. “was presented with a series of rules about telling the truth”; (5) “the
interviewer consulted with the detective during the interview”2; (6) the interviewer did not ask
K.B. about any physical injuries; and (7) “there was no evidence presented that the detective
observed the medical portion of the exam.”
But we explained in Hooper that “referral by police officers, in and of itself is not of great
significance, absent evidence of the purpose of the referral.” Hooper, 145 Idaho at 145, 176 P.3d
at 917. Along similar lines, we made clear that “the fact that an interviewer has forensic training,
does not, in and of itself, make the statements ‘testimonial’ in nature.” Id. Indeed, that the
interviewer was trained (a fact we welcome in any case involving interviewing children) and that
the interviewer discussed the importance of telling the truth (again, an important factor in any
child’s interview), doesn’t transform this exercise into a testimonial setting in which five-year-old
K.B. assumed the role of an in-court accuser. Thus, I would conclude that Parsons’ first, second
and fourth arguments are of little moment.
Even setting aside these points, I would note that no evidence established that the STAR
interview in Hooper was intended to assist in medical treatment, whereas the CARES interview
was conducted for that purpose here. Of importance are two distinctive facts in Hooper that never
occurred in K.B.’s first interview: (1) A.H.’s interview occurred after her medical examination,
not before; and (2) the nurse/interviewer left the child alone in the interview room to consult the
detective and then returned to ask more questions.
K.B.’s first CARES interview was entirely different. It was conducted by Lara Foster, a
trained medical social worker. Dr. Amy Barton observed the interview via closed-circuit television
2
While the interviewer spoke with the detective during K.B.’s second interview, there is no evidence that the detective
interrupted the first interview.
22
and established the scope of the medical services K.B. needed based on K.B.’s answers to Foster’s
questions. This information-gathering step was followed immediately by Dr. Barton’s medical
examination and a psychological examination. None of these facts are present in Hooper.
Moreover, before the interview, K.B. was told that the purpose of the interview was that Foster
was working with the nurses and doctors to “help make sure that [children’s] bodies are safe and
healthy.” K.B. understood this, remarking to Foster that she was “the best doctor ever.” Thus, as
the district court found, “the interviews were conducted by CARES employees, not law
enforcement,” and there is no evidence that law enforcement interfered or intruded in the first
interview whatsoever. No questions were suggested by law enforcement, and law enforcement was
not involved in the process, other than scheduling the interview and observing it from another
room via closed-circuit television. These factors also readily separate this Court’s holding in
Hooper from this case.
In Hooper, six-year-old A.H. was never told that the purpose of the STAR interview was
medical. And this Court concluded that the circumstances of the interview demonstrated its
primary (if not only) purpose was to “establish or prove past events potentially relevant to later
criminal prosecution,” rather than meeting the child’s medical needs. Hooper, 145 Idaho at 145–
46, 176 P.3d at 917–18. Indeed, at the beginning of the interview, A.H. was shown the camera at
the STAR Center and told
[t]hat’s where my special camera is and that makes it so I don’t have to write
everything down we talk about, cause I forget stuff sometimes, okay? . . . [A]nd my
friend John [Detective Plaza] is watching to make sure that I remember to ask all
the questions I need to ask, okay?
145 Idaho at 145, 176 P.3d at 917. This focus on the forensic nature of the interview, with no
reference to any of the medical factors present here, makes Hooper an entirely different case than
this one. Rather than what A.H. knew during her interview in Hooper, K.B. was unaware that law
enforcement participated in “keeping her safe” in any way. Detective Raddatz testified that she set
up the CARES interview, but that before seeing K.B. at the first CARES interview, Raddatz had
never met K.B., and she did not believe that K.B. saw her before that interview started.
In addition, the district court noted,
K.B. is only five years old and there is no evidence (or assertion by the Defendant)
that she is familiar with the criminal justice system or intended her statements to be
a substitute for trial testimony. On the contrary, as in Ohio v. Clark, it is likely that
23
a young child in K.B.’s ‘circumstances would simply want the abuse to end, would
want to protect other victims, or would have no discernible purpose at all.’ [quoting
Clark, 135 S. Ct. at 2182]. In addition, the interviews were conducted by CARES
employees, not law enforcement. K.B. was informed that the purpose of the
interviews and the medical examination were to make sure that she was safe and
healthy.
Thus, K.B.’s CARES interview, while observed by Detective Raddatz, was not directed by
the detective. Instead, Dr. Barton watched K.B.’s first interview via closed-circuit television to
gather information that would assist her medical evaluation that immediately followed, as I have
noted. Dr. Barton testified at trial that her observations during the first interview “identified
disclosure of child sexual abuse.” Based on the interview, Dr. Barton recommended that K.B.
receive counseling services by a therapist with experience in treating abused children. These facts
place this case not just in another lane than the one in which Hooper traveled–they place this case
on another roadway altogether; a roadway that leads to but one conclusion: the primary purpose
of the CARES interview, and of obtaining K.B.’s statements, was to inform those viewing the
interview and particularly to enlighten the medical provider entrusted to “keep her safe.” See Clark,
576 U.S. at 245.
It is also worth mentioning that Hooper was decided before the United States Supreme
Court’s decision in Clark and this Court’s decision in Christensen. Clark involved statements
made by a three-year-old to a preschool teacher alleging abuse. Clark, 576 U.S. at 246. The
circumstances there involved pre-school teachers who needed to know whether it was safe to
release the child. The later questions from the teachers, according to the Court, were intended to
identify who was abusing the child and to protect the child from further abuse; the teachers’ intent
was not to create an out-of-court substitute for trial testimony. Id. at 247. In reaching that decision,
the U.S. Supreme Court declined to adopt a categorical rule that would exclude statements to non-
law enforcement from the Confrontation Clause, yet the Court noted that “such statements are
much less likely to be testimonial than statements made to law enforcement officers.” Id. at 245.
The Court also explained that “[i]n the end, the question is 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 245. The child’s young age helped evaluate the
primary purpose of the statement. The Court explained: “Statements by very young children will
rarely, if ever, implicate the Confrontation Clause.” Id. at 247-48. Indeed, the Court elaborated
24
that it was unlikely that a young child who is the victim of sexual abuse would intend her
statements to be a substitute for trial testimony and, instead, “would simply want the abuse to end,
would want to protect other victims, or would have no discernible purpose at all.” Id. at 248.
Justice Scalia, with whom Justice Ginsberg concurred in the judgment in Clark, also noted
the inability of a young child to form a subjective purpose of invoking the “coercive machinery of
the State against the defendant” (while focusing, again, on the child’s subjective views in giving
his statement):
L.P.’s [the child’s] primary purpose here was certainly not to invoke the coercive
machinery of the State against Clark. His age refutes the notion that he is capable
of forming such a purpose. At common law, young children were generally
considered incompetent to take oaths, and were therefore unavailable as witnesses
unless the court determined the individual child to be competent. Lyon & LaMagna,
The History of Children’s Hearsay: From Old Bailey to Post–Davis, 82 Ind. L.J.
1029, 1030–1031 (2007). The inconsistency of L.P.’s answers—making him
incompetent to testify here—is hardly unusual for a child of his age. And the
circumstances of L.P.’s statements objectively indicate that even if he could, as an
abstract matter, form such a purpose, he did not. Nor did the teachers have the
primary purpose of establishing facts for later prosecution. Instead, they sought to
ensure that they did not deliver an abused child back into imminent harm. Nor did
the conversation have the requisite solemnity necessary for testimonial statements.
A 3–year–old was asked questions by his teachers at school. That is far from the
surroundings adequate to impress upon a declarant the importance of what he is
testifying to.
Clark, 576 U.S. at 251–52 (Scalia, J. and Ginsburg, J., concurring in the judgment). This logic is
indistinguishable from what occurred here, other than K.B. was two years older than L.P. at the
time of making her statements. This view supports my own, that when dealing with interviews
involving young children it is imperative to consider the age of the declarant, and that here, K.B.
was absolutely incapable of forming a purpose to make statements that were testimonial. As noted
above, the district court recognized this truth as well in analyzing K.B.’s statements.
The majority rejects this “subjective” information being considered when determining the
primary purpose of K.B.’s statements; but the age of the child was a critical factor in Clark, both
for the majority and for the concurring justices just cited, as persuasive evidence in analyzing the
federal Confrontation Clause. Given the makeup of the Court in reaching the Clark decision, each
justice supported the notion that “statements by very young children will rarely, if ever, implicate
the Confrontation Clause.” Id. at 238. We state courts would do well to follow suit, and I
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underscore these principles as part of the totality of the evidence we must consider in making this
decision.
After the U.S. Supreme Court decided Clark, this Court addressed a case with similar
undertones in State v. Christensen, 166 Idaho 373, 458 P.3d 951 (2020). Though Christensen was
not a case about the Confrontation Clause, this Court explained that a CARES interview, which
consists of a forensic interview, a psychosocial assessment, and a medical examination, “is not
primarily designed to gather evidence, though that is one of its byproducts; it is to help inform the
medical process that takes place with the child throughout their experience at CARES.” Id. at 380,
458 P.3d at 958. The Court noted in conclusion:
Finally, and most importantly, even though CARES interviews serve a dual medical
and forensic purpose, A.M.O. and A.G.O.’s statements were admissible because
their statements remain inherently reliable; they are gleaned from a process
designed to aid and inform treatment and diagnosis of the child’s medical condition.
In these circumstances, the child would “still have the requisite motive for
providing the type of ‘sincere and reliable’ information that is important to that
[medical] diagnosis and treatment.”
Id. at 379, 458 P.3d at 957 (internal citation omitted). We thus made clear that, in evaluating
whether statements made during CARES interviews are admissible as statements made for medical
treatment, the focus is on the nature of the interview and its “primary purpose,” not the byproduct
that the same information can also inform law enforcement about the extent of the crimes that have
occurred in such cases.
While the majority endeavors to distinguish Clarke and Christensen from this case, when
the focus is on the primary purpose test in a case involving a five-year-old child, the outcome is
indisputable: K.B.’s interview’s primary (not sole) purpose was to inform her medical care.
Coupling this reasoning with the views of the Court in Clark, I would hold that the primary purpose
of K.B.’s first CARES interview was not to create an out-of-court substitute for trial testimony.
K.B. was a five-year-old child speaking to a social worker about the abuse she sustained.
She was not an adult, who, while speaking with law enforcement, could perceive that her
statements would be useful at a future trial as evidence against Parsons. The purpose of K.B.’s
statements during her interview was to inform providers about the medical treatment she needed,
based on the abuse she incurred (again, she thought the interviewer was a doctor), while also
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informing Detective Raddatz (unbeknownst to K.B.) of the scope of the abuse in determining the
nature of the criminal acts that Parsons committed.
I recognize that CARES interviews serve dual purposes, but this case is entirely different
from Hooper, and the primary purpose was medical, as borne out by the record before us. Given
the facts here, can it reasonably be said that the primary purpose of the CARES interview was to
preserve testimony, through the majority’s application of hindsight, simply relying on something
akin to “well, K.B.’s answers to interview questions were presented to the jury, so they were
obviously testimonial”? This smacks of determining the primary purpose of the interview after-
the-fact, rather than based on an objective analysis of what actually occurred at the time of the first
CARES interview. Hooper remains good law when an interview is a mere substitute for law
enforcement’s need to preserve out-of-court testimony for later use; but there are no facts here that
support such a conclusion.
In short, I wholeheartedly join with the majority’s acknowledgment of the value of
processes like CARES to protect children: “CARES provides a crucial service to our state and
community by helping children disclose horrific abuse and begin treating their trauma. To reduce
the need for a child to repeat the story—and incur that trauma—multiple times is a noble and
challenging mission.” Ante, p. 16. But the majority turns this recognition on its head, reasoning in
almost the same breath that this case “risks smuggl[ing] longstanding hearsay exceptions back into
the Confrontation Clause,” Clark, 576 U.S. at 253. Agonizing over smuggling hearsay exceptions
into the Confrontation Clause misses the point when the Confrontation Clause is not implicated in
the first place. Thus, I would hold that Parsons’ rights under the Confrontation Clause are not
implicated here.
In addition, I would also hold, as the district court found, that
[b]ecause the Confrontation Clause is not implicated, the admissibility of the
CARES interviews is governed by the Idaho Rules of Evidence. See Michigan v.
Bryant, 562 U.S. 344, 359 (2011) (“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.). The plain language of Rule 803 permits the
introduction of material that qualifies under Rule 803(4) “regardless of whether the
declarant is available as a witness.” Pursuant to Rule 803(4) and Christensen, the
CARES interview is admissible.
Accordingly, I dissent.
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