please the court counsel my name is liam myers from the illinois attorney general's office on behalf of the people of the state of illinois this case presents several issues connected to the seminal united states supreme court case of crawford versus washington and although this case could be resolved on either harmless error or forfeiture by wrongdoing grounds i'd like to begin my time and focus my time on the question of whether certain statements were testimonial and necessitating cross examination under crawford in this case the six year old vaughn came home to tell his mother about abuse that he had suffered the mother called the police and police officer robert cure responded to the scene and vine made a second set of statements to him about a week later ron was taken to a child advocacy center where he was interviewed by jackie webber a child abuse advocate and that interview was recorded during the bench trial which was before crawford was issued the state proceeded with these three sets of hearsay statements which were admitted under section one fifteen ten of the code of criminal procedure in that the mother testified officer cure testified and the videotape of the interview with weber was played here the parties are in substantial agreement about the status of many of these statements the parties agree that the testimony by the mother constituted non testimonial hearsay so it was admissible under section one fifteen ten and the parties agree that the statements to officer  testimonial and in violation of crawford the crux of the dispute then is over the status of the statements to weber the child abuse advocate in two thousand and seven this court in people versus statute addressed a somewhat similar child abuse well because the parties proceeded under the assumption that the child was unavailable and actually before this court the parties do not dispute the on availability of the child so that is not it an issue at this stage of the appeal i think one of of the mother's testimony was not only to recount the hearsay that she heard but also her observations of his strange behavior before he spoke and his strange behavior of coughing renting out his mouth  of not wanting to go back outside on a summer day which is uncharacteristic all matched up with the allegations that he later made and certainly crab aeration is not a high standard simply something to further support the hearsay and so  again the parties don't dispute that that was sufficient provocation here as myers what about these factors and have a impact upon that statement defendant swanberg arrange the interview actually that is a point that we disputed is true she was wearing an earpiece respondent points to a moment in terms of the tape where respondent alleges that there was a male voice whispering when i read watch the tape at that moment and turn it up as high as my best what i could hear was static it was not clear that it was a male voice and in addition the two people in the observation room where a center employee as well as the police officer so it's not clear who if anybody was communicating with whether it could have been the identified some of the ways in which the police were connected to this interview however people put forth that that should be a totality of the circumstances test and in both is a royal court from kind of case from connecticut and state versus boby of the minnesota supreme court noted that just interaction and communication with police should not be sufficient to render a statement to a child abuse advocate testimonial because that in and of itself has a dual purpose when you add to the factors that are just in the barracks in this case which i mean that could include that there isn't any dispute is there that the interview the worries between the worker in the victim in this particular case only related to what the respondent did right there one questions relating to the well being generally victim were and no but it's true that that doesn't mean that there couldn't have been a purpose to help the victim at that time the juvenile petition had not been filed so it makes sense that they were trying to determine what happened and what happened is relevant both to whether or not a case will go forward but also to what kinds of services down the road might need to be provided because the record is silence of silent about what other types of treatment might have been provided this court should not simply presume that nothing occurred as being someone whose job it is to make sure children are safe she said nothing about police she said nothing about judges are getting someone in trouble or punishing someone she said it is her job to keep kids safe which shows a child welfare concern we also know that the center website in addition to that phrase about investigation present but outside the room yes he was observing through a one way mirror that's true but the child the police officer was never referenced he was never seen so it was not something that would've we should presume have been aware of at the time these are this or is there evidence the record that this this interview was titled the forensic interview in the paperwork i don't think that paperwork is in the record it is unclear and because of the fact that this trial happened before crawford there is no need to document that type of information certainly every man for exploration of these issues could be could be occur could happen however we do have more information about whether in addition to what she said on the tape we know that carolyn center on its web site does acknowledge investigation and prosecution but every other sentence every other kind ever all the other content of the website addresses child welfare in fact it says quote the main goal of the center is to help reduce trauma by improving the efficiency of the systems that respond to cases of child abuse now this directly references the fact that there's a multi disciplinary approach in illinois to responding to child abuse cases and yes the police and prosecutors have a role but other people are involved such as child advocates to ensure that the way in which the process goes forward is minimally traumatic for the child so just because the police are present on this team shouldn't mean that they dominate everyone on the team  instead the center's role was to worry about the child's welfare during the process and because the question is what was weber's perspective when questioning farm certainly the focus is on her or her intent her primary purpose in conducting that and in an objective manner and it's important to consider so that's true looking at the declare its intent certainly we would we would support the three justice pluralities position of looking at a reasonable child not a reasonable dealt with them to clare perspective as being the appropriate stance because the weight of the authority supports this and as this court can see through the brief filed in support of the people here and the appendices that were also filed there is in pure a cli a great difference between what a young child understands about the criminal justice system and one an adult understands and to say what would a reasonable six year old child be intending when talking to webber in this interview certainly that factor in the totality of the circumstances heavily weighs in favor of finding it's been on testimonial because there's simply no evidence in the record that vine would have been a reasonable six year old child would have been making a statement and in anticipation of its you said a trial and certainly also again looking at the carolyn's hunters website we know their concern was for her child welfare we also know the center was accredited by the national children's alliance which is and accrediting national organization that requires ten tenants to give accreditation standard status to a particular center and of these ten tenants their focus also is on child welfare and when they note forensic interviews it is not simply to view them as a way of getting information for police but instead says that they need to be neutral in investigations or interviews and also that one purpose is that they need to be coordinated in order to make sure that second and third interviews don't have to happen down the road and that is why sharing information with police in and of itself is a mixed factor because yes that advocate knows the police may use that statement for a future prosecution but they also want to share that information so that the police do not have to re interrogate the child at a future date because those future interviews might not take place in a child friendly environment they might not take place by a person who's trained to appropriately interview a child and because of the fact this information sharing has a mixed purpose it certainly should not overwhelm what we do know about whether as an individual about her job and her training and her employer which all show a primary purpose of child welfare respondent sites other factors in support of the assertion that weber should be viewed as a cleese agent but these are actually irrelevant to determining the purpose she cites the fact that the interview took place in a question and answer format but this in and of itself tells us nothing about what the purpose of the interview would be a person can ask questions to get answers but the question really is what are those answers going to be used for are they going to be used to figure out how to best protect the child's welfare or are those answers going to be used to develop a case for a future prosecution therefore the format of the interview in and of itself and enough itself tells us nothing about the purpose of the interview and secondly respondent cites the fact that there was no ongoing emergency and the fact that past events were discussed these factors certainly reference back to the case of davis versus washington from the united states supreme court which were two consolidated cases that both involved police questioners now the holding in that case was that if objective circumstances indicate the primary purpose of the police questioner was to get answers for to help resolve an ongoing emergency then that's non testimonial hearsay whereas if the objective circumstances indicate the police officer was apt asking questions about past events that that would be testimonial statements now the united states supreme court prefaced this holding by saying we don't mean to say that this standard applies to non police statements because in fact those two elements don't readily transport themselves into a non play situation yes a police officer wants to help the victim during an emergency but as soon as the emergency has passed then he'll resume his duties of investigating crime and promoting a future prosecution in contrast a child advocate such as weber is never just catch to the scene of emergency she's never going to be there while an ongoing emergency still exists so she's always going to be discussing past events that mere fact tells us nothing about the purpose of the interview the question again is what are those past events what is that information going to be used for is it going to be used to determine how to protect the child's welfare or are the past events going to be used to develop  trial and certainly this court could look to both the arroyo case from the connecticut supreme court and the boat media case from minnesota because in both of these cases those supreme courts rejected this type of interaction and communication with police as being sufficient to render a statement testimonial because of this dual purpose behind that communication in the absence of stronger or other factors for example many of the cases that respondent cites where child abuse  statements were decided to be testimonial in most cases there was more dominant police roles perhaps the you know in one case the advocate testified that the purpose of the interview was to get information from the police and another case the police or during the interview the advocate said you need to answer this question for me because the police are watching and the police need this information and in other cases the police met with the advocate both before and after the interview to shape the the course of the interview we have none of that here we simply have passive observance by the police officer and in contrast in the boat with the a case in that case the police officer was sitting in the room at the time of the interview and the interview took place at a place that was called the law enforcement center which is certainly a more obvious situation of police involvement and yet the minnesota supreme court there found that statement tonight to be non testimonial so again it really is a totality of the circumstances test and because what we know about six year old victims intent primary purpose of making the statement does not at all support a finding of testimonial hearsay and because what we know about weber as the  questioner as an individual her training her job her employer the accrediting body of her employer all supports a finding that she primarily was worried about the child's welfare and yes there was communication with the police but there is no evidence in the record that the sort of a station house interrogation type question in answer situation it took place in a room that was like a play room it had a cartoon poster on the wall the table and chairs were child sized it was a person who had no kind of outfit or other showing of authority and the way she was dressed and or in her manner she used techniques that were often used by child advocates in terms of making sure does the child know his colors his numbers talked about the family it was very informal in that sense that it had more of a conversation to it it was not simply sort of an adult enforcing a station house like interrogation so it is a little more complex than question and answer tells you one thing in a play room and tell you another this is sort of in the middle ground sure yes sure i like to preface it very quickly by saying perhaps this court should wait until the united states supreme court the south decides giles versus california which is expected in june to address whether intent to silence is required and forfeiture by wrongdoing present and certainly by analogy the high incidence of post traumatic stress disorder of difficulties with child abuse victims similar these shows a reasonable forseeable cause a connection between abuse and the inability of the child to testify later but even if this court doesn't want to presume intent under these circumstances we do have facts here to support that finding we have the fact that the interaction between the two began with the threat of hitting van with a stick well that's true although because the parties agree that the mother's testimony is admissible here that's what raises the harmless error question the parties agree that that evidence was properly admitted then whatever this court decides was improperly admitted whether it's only the officer statement or also the videotape this court would initially have to decide whether the air any error was harmless error before reaching the constitutional question that certainly in this court's ability in its case lacks using forfeiture for uniformity of precedent  grounds and because i know i'm about to run out of time i just briefly like to say to point to the briefs and the five corroborating factors supporting a finding of her month's notice in the mother's testimony and on that basis the people would ask that this court reversed the appellate court concerning child advocacy centers those policy considerations are irrelevant in this case because whatever was not acting consistent with those policy considerations when she interviewed von she was acting on behalf of the police to gather information pertinent to the investigation and prosecution of her landis if webber's purpose of the interview was to protect vaughn's general wellbeing if the police officer the police officers present behind the glass certainly is a factor that weighs in favor of finding out the statement is testimonial it's also important to mind that the officer didn't play a passive role in this case the officer was the one who initiated the interview the officer conferred with whatever during the interview and this is very evident from the video if you watch the video webber at one point during an interview pauses and listens to a male voice and then starts asking the wrong questions about it and on a different topic the officer also was involved in the decision making process as to when the interview should end the officer inventory involved and he the police questioned him at his home about the incident the level of police involvement isn't the only factor that weighs in favor finding the statement is testimonial the interview was all it was a very from one i mean it occurred in an interview room interview from room number two not a play room as a state claims additionally the state was elicited in a question and answer format and the scene was recorded there was no ongoing emergency when interview occurred it occurred one week after the incident and we can't discount webber's role as a forensic interviewer in this regard there is evidence in the record that she was conducting a forensic interview it's on page seventeen of my brief c thirty the record says that she was conducting a forensic interview and that she was a frantic interviewer these objective circumstances make clear that when was acting on behalf of the police when she questioned on and she did so to gather information relevant to the investigation and prosecution a relentless because of that van's age is irrelevant but that's what this court held instead when the when the interviewers acting on behalf of the police together information relevant to a criminal prosecution interviewed the victim after the victim was brought to the hospital and she brought the victim to the emergency room after that interview to be examined by dr none of that occurred here the only purpose of this interview was a gather information relevant to the investigation and prosecution her lantus and there's no doubt that some statements by child abuse victims to trial at the centers will be deemed testimonial that should not foreclose prosecution of these types of cases this whooshing the crawford is not the witness is unavailable to trial and there's simply no evidence that ruinous acted with that requisite intent in this case that one is allegedly threatened vaughn with a stick is irrelevant because he threatened him with the stick to force him to submit to the sexual act not to prevent him from testifying against him the most to say can come up with is this supposed pinky swear between these two boys but that's not evidence that willingness acted with the intent to prevent ron from testifying against him at most it's a a mere agreement between two boys not to tell before we deprive a defense or are you saying that we can't take into account the fact that there was a threat even showing that the threat to force someone to commit the sexual act is relevant to or indicative of proof that the that the defendant acted with the intent to prevent the witness from testifying i mean the intent was to more than than a pinky swear furthermore if this court follows the causal connection test there is absolutely no evidence in this record that vons on availability was caused by landis when started testifying on direct examination the prosecutor asked him are you scared and ron said no he's an availability is that most do do is embarrassing and i mean you look at the video and you can see that van was not traumatized by this  had no qualms about talking about the incident the only problem was in ordering certain words and it embarrass him and so he would only say them if he could whisper them to others so imagine how he felt coming into court and having to say certain things in front of a judge in front of a prosecutor you agree with the state that we should wait for the u s supreme court's ruling in giles or giles i don't think god will necessarily resolve this issue because giles involves a murder case and as this court held and secondly murder cases are very different assault cases in murder cases the person knows that the witness isn't going to testify against women and in an assault case the witness may the witness may not testify against him so i think there are totally different contacts and i don't think i will testify before a court can remain for a fourth year and there needs to be some evidence in the record to support the forfeiture argument otherwise a defendant could lose his right to compensation based on a witness claim six years after the fact that he was scared to testify against  we need some reasonable basis to support the claim in the record and there is absolutely no evidence in the record there's one of this kind i did not cause vons on availability and because there's no evidence to support the s rebuttal yes thank you i'd like to make several points in rebuttal first concerning the testimonial analysis here the fact that the interview by weber mostly discussed what happened is should not be determinative of the fact that no treatment being invision by weber before any treatment could be provided or a plan could be made it is necessary to determine what exactly happened the fact that past events are discussed is not does not show that there is no treatment motivation behind weber's questioning and in fact the connecticut supreme court and the royal quite case how does much better friends it interview or first discuss discusses past events but that can be for the purpose of determining how to address the child's welfare not simply to develop a case for a trial disarray a case is an important precedent for this court to consider because in that case the police retained an audio tape immediately afterwards in that case the police were observing on the other side of a one way mirror and yet in that case the connecticut supreme court found this  presence of police to be insufficient to render the statement testimonial and that is what we have here we have the police watching outside the window but we have no evidence that bond was aware that the police were involved during that interview and that's the question during the interview with webber what did vonn know what did the questioner intend yes the police were involved the week before but the question is what happened at this interview at the time certainly respondent keeps insisting that u is not relevant the first point is that only three justices supported this way of analysis of analyzing testimonial hearsay number one and number two that presumes without proving that webber should be considered a police agent webber  not employed by the rockford police department she was employed by a separate nonprofit body she was conducting the interview separately from the police the police were not there although responded insists that a male voice can be heard on the videotape objective lee as an officer of the court i listened to the tape again turn it up as loud as i could and i could not identify a male voice certainly this court can listen to the tape and make its own judgment but should not presume that there was indeed a male voice meeting the police officer feeding questions to rubber at the time and and that shows that and compared to the statute case or speckly the nurse groat testified that the reason the interview was taken place with the police watching outside to that one way mirror was for the benefit of police that's an important distinguishing factor we did not have that same kind of factor in this case and finally then turning to the forfeiture by wrongdoing issue certainly the threat with the stick should be considered the people did provide authority that this should be considered on page eighteen of the reply brief we cited the west virginia supreme court case of state versus not showing in that case it was a domestic violence case the the west virginia supreme court acknowledged that the prior interaction between the husband and wife actually might have been a boyfriend and girlfriend prior threats and prior physical harm is certainly relevant to what that person is thinking at that specific moment after the specific abuse in question and so certainly the dynamics of the relationship are relevant factor to consider and yes respondent tries to dismiss letters yes can you give me an example we're under your hypothetical there is a case that i found and i wish i could remember the specific case cite where the child marched up to the mother and said we need to call the police because so and so did this to me the person objective lay show show or road her knowledge of the police i believe it was a younger child i believe is a five year old and if i can i can check that specific site and supplement the to the court but if if there is any of evidence that that child is aware of the police and is aware of prosecution as a as a important factor that would be different we don't have that here the word police was never mentioned during the entire interview between whenever and fon they simply were talking about what articles that an abuse cases domestic violence and child abuse cases there is often a cause a link between the trauma suffered from the abuse and the inability to testify since crawford hinges everything on cross examination and testimony certainly it is important to view to explore whether the wrongdoing caused that person's inability to testify at trial it's true the record could be better here since this occurred before crawford we all that respond or opposing counsel does a sort of speculate as to why and he may or may not have been able to testify at trial his questions speculate one way or the other what we do know are the facts of the interaction  and this court shouldn't hesitate to have a broad forfeiture by wrongdoing case because in the name forfeiture by wrongdoing a defendant should not benefit if his wrongdoing gives him the kind of reward or benefit of not being to have this hearsay testimony come in when that person unavailable to testify because of that wrongdoing it's an equitable principle that goes back to the nineteenth century and has been acknowledged in both davis and crawford as being relevant in this area and certainly giles while it is a murder case it is potentially relevant here because if intent to silence is not required that will inform this case even if it's an abuse case and at the very least since it's due in three months it isn't that much of a wait to see whether or not giles will be helpful in that regard and finally as to whether or not the people forfeited both this forfeiture and this harmless error and now issue even besides the issue of excus forfeiture this court and its supervisory authority certainly has the power to go ahead and address these issues and because of the importance of crawford here it is it is important that this court take its opportunity to provide guidance to the lower courts in illinois and by looking at how for at harmlessness and forfeiture first before the crawford issue that's what we're going to expect the lower courts to do in future cases and so certainly this would be a good candidate for this court to issue to use its supervisory authority to excuse