IN THE SUPREME COURT OF IOWA

No. 14–0357

Filed April 1, 2016

Amended June 14, 2016

IN THE INTEREST OF J.C., Minor Child

J.C.,

Minor Child,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Scott County, Christine 

Dalton, Judge.

A youth adjudicated as a delinquent seeks further review of a court 

of appeals decision affirming the adjudication. DECISION OF COURT 

OF APPEALS AND JUVENILE COURT JUDGMENT AFFIRMED.

Timothy J. Tupper, Davenport, for appellant.

Thomas J. Miller, Attorney General, Bruce L. Kempkes, Assistant 

Attorney General, Michael J. Walton, County Attorney, and Elizabeth J. 

Cervantes, Assistant County Attorney, for appellee.
2

MANSFIELD, Justice.

This appeal from an adjudication of delinquency requires us to 

determine whether a violation of the Confrontation Clause occurred when 

the juvenile court admitted out-of-court statements of a four-year-old 

child victim. The child made some of the statements during a medical 

assessment performed by a physician; others were made in the course of 

a recorded interview conducted by a forensic interviewer. Both the 

physician and the interviewer testified at the hearing.

Applying recent authority of the United States Supreme Court, we 

find that admission of the physician’s testimony and report did not 

violate the Confrontation Clause. We also conclude that any error in 

admission of the forensic interviewer’s testimony was harmless beyond a 

reasonable doubt in light of other overwhelming evidence that the 

respondent committed the charged conduct. For these reasons, we 

affirm the judgment of the juvenile court and the decision of the court of 

appeals.

I. Facts and Procedural Background.

On July 2, 2013, twelve-year-old J.C. visited the home of his friend 

K.W. An extended family lived in the home, including K.W.’s sister E.W., 

K.W.’s brother I.W., and their four-year-old niece A.W.

That afternoon a number of the children were playing outside. 

J.C. tried to take pictures with a cellphone of E.W.’s chest and tried to 

touch her. J.C. also attempted to show photos of his penis to E.W. On a 

previous occasion, J.C. had written a note to E.W. asking to have sex.

After dinner, I.W. walked into an upstairs bedroom unannounced. 

He saw J.C. pulling down A.W.’s underwear and saying, “It’s time to go to 

sleep.” A.W. was lying on her back; J.C. was on his knees over her. The 

underwear was halfway pulled down when I.W. arrived. I.W. yelled at 
3

J.C. and pulled him off of A.W. J.C. denied that anything was going on, 

turned red, and ran out of the house.

Meanwhile, E.W. and her friend M.M. had been downstairs. M.M. 

heard A.W. scream. She and E.W. ran upstairs and entered the 

bedroom. I.W. was already in the room. According to M.M., J.C. had 

A.W. pinned on the bed and was on top of her. J.C. was taking off A.W.’s 

clothing, and A.W.’s shirt was already on the floor. J.C. soon left the 

house.

E.W. also recalled hearing commotion and going upstairs with 

M.M. She arrived to see J.C. on the bed with A.W. and his arm on her. 

To E.W.’s recollection, A.W. was still dressed.

The two older girls—E.W. and M.M.—grabbed A.W. and brought 

her downstairs to her mother who was doing chores at the time. The 

mother called the police and filed a report. The police later directed 

A.W.’s parents to the Child Protection Response Center for interviewing.

The police also obtained K.W.’s cellphone, which J.C. had been 

using that day. The cellphone was found to contain photos of J.C.’s 

penis, a video of J.C. masturbating, and a video taken by J.C. of K.W. 

with J.C.’s voiceover stating that K.W. was going to suck his penis that 

evening.

A.W. does not speak very clearly. A.W. is in speech therapy and, 

according to A.W.’s mother, talking to her is like talking to a two-yearold.

On July 10, A.W. was brought to the Child Protection Response 

Center by her parents. At that time A.W. was interviewed by Michele 

Mattox—a forensic interviewer with the Child Protection Response Center 

and a former twenty-five-year employee of the Iowa Department of 

Human Services. Mattox had a referral sheet that said, “Rule out sex 
4

abuse by older child . . . .” The interview was recorded on DVD, and 

Mattox also prepared a report. Mattox recalled that A.W. “had a definite 

speech and language problem and delay.” In the interview, A.W. said 

that J.C. had touched her “pee” and that her clothes were off and J.C.’s 

were on. Law enforcement observed the interview.1

Additionally, Dr. Barbara Harre, a physician and the medical 

director of the Child Protection Response Center, saw A.W. on July 31. 

Her meeting was not recorded, but she dictated a report. Dr. Harre’s

report explained, “I was asked to complete a medical assessment for 

[A.W.]” A.W.’s father brought her to the appointment, but Dr. Harre 

spoke to A.W. alone. No one from law enforcement was present. 

Dr. Harre took notes and then prepared a report addressed to the 

assistant county attorney who later prosecuted the case.

Dr. Harre initially reviewed truth–lie concepts and conducted a 

medical review of A.W.’s systems for any areas of discomfort or signs of 

illness. Dr. Harre then asked A.W. if she could remember what had 

happened with her brother’s friend when he was at her place. A.W. 

stated, “Me upstairs. Pulled underpants off.” Dr. Harre asked if her 

underpants came all the way off or down to her knees or something else. 

A.W. stated, “To knees.” In response to a question whether she had been 

touched, A.W. said, “Touched me boob. One. Two.” While saying this, 

A.W. pointed to both sides of her chest.

Dr. Harre asked if the brother’s friend touched her anywhere else. 

A.W. stated, “Touched back bottom,” while pointing to her rear. Dr. 

Harre asked again if he touched anywhere else. A.W. stated, “Touched 

1At one point, law enforcement sent in questions requesting more detail in one 

subject area, and those questions were put to A.W. by Mattox and answered.

 
5

front bottom.” Dr. Harre asked A.W. what he touched her body with, and 

A.W. said “Wawa,” apparently a reference to a dinosaur toy she used to 

have. Dr. Harre asked if the touching hurt or felt good or tickled or 

something else. A.W. said, “Hurt.” Dr. Harre asked A.W. if anybody else 

had ever touched her in a way that made her uncomfortable or hurt or 

something else. A.W. said, “No one else.”

After Dr. Harre finished asking these questions, she conducted a 

full medical exam of A.W., with her father now present at A.W.’s request. 

Dr. Harre found nothing abnormal in the physical exam. When asked 

during the medical exam to indicate where she had been touched, A.W. 

pointed to her front bottom area and her anal area. According to Dr. 

Harre, it was “moderately” difficult to understand A.W. throughout the 

interview and exam. Dr. Harre had not received any information 

concerning Mattox’s interview before she saw A.W.

The State filed a delinquency petition and the case proceeded to 

hearing. A.W.’s mother testified that A.W. would be traumatized by 

testifying and might not even be able to speak. A psychologist, Catherine 

Jackson, also testified that the trauma to a child of this age would 

outweigh any benefit from the testimony. The State did not call A.W. to 

testify. However, other witnesses for the State included I.W., E.W., M.M., 

Mattox, and Dr. Harre. J.C. testified on his own behalf and denied 

assaulting A.W.

J.C. objected to testimony from Mattox and Dr. Harre describing

A.W.’s statements on the basis of hearsay and the Confrontation Clause.2 

2J.C.’s counsel did not specify whether he was referring to the Confrontation 

Clause of the United States Constitution or that of the Iowa Constitution.

 
6

J.C. also objected to the admission of their written reports and the DVD 

of Mattox’s interview with J.C. 

The juvenile court sustained the objections to Mattox’s written 

report and the DVD. The court admitted Dr. Harre’s written report. The 

court also permitted both Dr. Harre and Mattox to testify regarding their 

interviews of A.W. The court found beyond a reasonable doubt that J.C. 

committed assault with intent to commit sexual abuse in violation of 

Iowa Code section 709.11 (2013) and adjudicated J.C. a delinquent child 

as defined by section 232.2(12).

The court noted that J.C.’s testimony “is inconsistent with A.W.[’s] 

statements to Dr. Harre, and eyewitness accounts by I.W., E.W., M.M., 

and K.W. who saw A.W. and [J.C.] together. The eyewitness accounts 

alone are quite persuasive in this case and appear credible due to the 

differences which are explained by the order they entered the room.”

J.C. appealed. He argued that the court erred in admitting certain 

testimony due to insufficient notice of the witness. He also urged that 

the court should have excluded any evidence of A.W.’s statements to Dr. 

Harre and Mattox as violating the Confrontation Clause. Lastly, he 

argued that evidence of A.W.’s out-of-court statements to Dr. Harre and 

Mattox should not have been admitted because A.W. was incompetent to 

testify.

We transferred the case to the court of appeals. The court of 

appeals affirmed, with one judge on the panel dissenting. J.C. filed an 

application for further review, which we granted.

II. Standard of Review.

“We review constitutional questions de novo.” Clarke Cty. 

Reservoir Comm’n v. Robins, 862 N.W.2d 166, 171 (Iowa 2015). Our 
7

review of evidentiary claims is for abuse of discretion. State v. 

Harrington, 800 N.W.2d 46, 48 (Iowa 2011).

III. Analysis.

On further review, we have discretion to let the court of appeals 

decision stand as the final decision on an issue. See State v. Walker, 856 

N.W.2d 179, 184 (Iowa 2014). We do so here with respect to the 

inadequate notice argument and turn to the remaining issues.

A. Confrontation Clause—Dr. Harre. Both the Sixth Amendment 

of the United States Constitution and article I, section 10 of the Iowa 

Constitution preserve an accused’s right “to be confronted with the 

witnesses against him.” This right of confrontation applies to juvenile 

delinquency proceedings. In re Gault, 387 U.S. 1, 56, 87 S. Ct. 1428, 

1459, 18 L. Ed. 2d 527, 562 (1967). Even though J.C.’s appellate brief 

refers to both the Sixth Amendment and article I, section 10 of the Iowa 

Constitution, he has not argued for a particular test or standard under 

the Iowa Constitution. In fact, he has only cited caselaw decided under 

the United States Constitution. We will therefore follow the approach we 

took in State v. Kennedy:

“[W]e jealously protect this court’s authority to follow an 

independent approach under our state constitution” for 

provisions of the Iowa Constitution that are the same or 

nearly identical to provisions in the United States 

Constitution. However, in his appellate brief, [the appellant]

does not propose a specific test we should apply under 

article I, section 10 of the Iowa Constitution. Rather he only 

cites caselaw analyzing the Confrontation Clause under the 

United States Constitution. Thus, under the facts of this 

case, we choose not to interpret the Iowa Constitution any 

differently from the United States Constitution.

846 N.W.2d 517, 522 (Iowa 2014) (first alteration in original) (citation 

omitted) (quoting State v. Pals, 805 N.W.2d 767, 771 (Iowa 2011)).
8

Under the Sixth Amendment, the fundamental question we must 

answer is whether the out-of-court statements were testimonial in 

nature. See State v. Bentley, 739 N.W.2d 296, 298 (Iowa 2007). “If the 

statements are testimonial, they are inadmissible against [the defendant] 

at trial; but if they are nontestimonial, the Confrontation Clause does not 

prevent their admission.” Id. The burden is on the State to prove by a 

preponderance of the evidence that a challenged statement is 

nontestimonial. State v. Schaer, 757 N.W.2d 630, 635 (Iowa 2008).

In our determination of what constitutes testimonial evidence, the 

United States Supreme Court’s decision in Crawford v. Washington

provides direction. 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 

(2004). As we have said concerning that decision, 

[T]he Court indicated that, at a minimum, there were four 

types of evidence that met the definition of testimonial: 

grand jury testimony, preliminary hearing testimony, former 

trial testimony, and statements resulting from police 

interrogations. These are the types of evidence with the 

“closest kinship” to historical “abuses at which the 

Confrontation Clause was directed.” 

In addition to these four categories of evidence, the 

Supreme Court provided three “formulations” to aid courts in 

determining whether other types of statements are 

testimonial. The first formulation involved ex parte in-court 

testimony or its functional equivalent where the declarant 

would reasonably expect the statements to be used at trial 

and where the defendant was unable to cross-examine the 

declarant. The second formulation involved formalized 

testimonial materials such as confessions and depositions. 

The third and most open-ended formulation included 

statements made under circumstances that would lead 

witnesses to objectively believe the statements might be used 

at trial.

State v. Shipley, 757 N.W.2d 228, 235 (Iowa 2008) (citations omitted)

(quoting Crawford, 541 U.S. at 51–52, 68, 124 S. Ct. at 1364, 1374, 158 

L. Ed. 2d at 193, 203).
9

Our decision in Bentley involved the admissibility of an interview 

with a ten-year-old girl. 739 N.W.2d at 297. The interview was 

conducted by a counselor at a child protection center but was arranged 

by police and DHS personnel and monitored by them through an 

observation window. Id. During the interview, the girl made numerous 

statements alleging the defendant had sexually abused her. Id.

We determined in Bentley that use of the interview violated the 

defendant’s Confrontation Clause rights under the Sixth Amendment. 

Id. at 302–03. After carefully reviewing the facts and circumstances, we 

found that “[t]he extensive involvement of a police officer in the interview 

leads us to conclude [the girl’s] statements were in effect ‘taken by [a]

police officer[] in the course of [an] interrogation[].’ ” Id. at 299 (last four 

alterations in original) (quoting Crawford, 541 N.W.2d U.S. at 52, 124 

S. Ct. at 1364, 158 L. Ed. 2d at 193). Among other things, we 

emphasized the “close, ongoing relationship” between local law 

enforcement and the child protection center; the participants’ 

acknowledgment that the interview “served an investigative function for 

the State”; the disclosure to the girl at the beginning of the interview that 

police and DHS were listening through the observation window 

accompanied by the interviewer’s explanation that “it’s just really 

important the police know about everything that happened”; and the 

interviewer’s mid-interview consultation with the police and DHS 

representatives to obtain more questions. Id. at 299–300.

Since Bentley, we have determined in two cases that statements to 

medical personnel were not testimonial. In Schaer, the victim spoke to 

treating medical personnel in an emergency room before police arrived, 

identifying the defendant as her attacker. 757 N.W.2d at 632. We noted 

that the statements “were not solemn declarations made for the purpose 
10

of proving some fact” or “made under circumstances that would lead an 

objective person to reasonably believe the statements would be available 

for use at a later trial.” Id. at 636. The interview “lack[ed] the indicia of 

formality” evident in Bentley, and there was “no indication in the record 

of any relationship between the emergency room personnel and law 

enforcement authorities that would support a finding the medical

providers’ questioning of [the victim] as to the cause of her injuries was ‘a 

substitute for police interrogation at the station house.’ ” Id. at 637 

(quoting Bentley, 739 N.W.2d at 299).

Likewise, in State v. Harper, we held that a victim’s statements to 

hospital staff that the defendant had raped her, tied her, and set her 

house on fire were nontestimonial. 770 N.W.2d 316, 322 (Iowa 2009). A 

doctor had asked the badly burned victim what had happened to her and 

the victim responded. Id. at 323. “The primary purpose of the 

statements was to assist the physicians in treating her.” Id.

The question we confront today is whether the statements of a 

four-year-old to (1) the medical director of the Child Protection Response 

Center and (2) a forensic interviewer employed by the same organization 

were testimonial. The statements were made on different visits that 

occurred on different dates. Law enforcement observed the forensic 

interview but not the interview conducted by the medical director. It is 

clear that the police arranged the forensic interview, but less clear how 

the subsequent meeting with the medical director came about.3

3Dr. Harre testified that A.W. “was referred from the . . . emergency room where 

she was seen on July 3.” Her report, however, indicates that Mattox made the referral 

following the forensic interview. A police officer, meanwhile, testified that he directed 

A.W.’s parents to Dr. Harre’s office so A.W. could be examined. However, A.W.’s mother 

testified that “the hospital told me to make an appointment with the doctor lady to talk 

to her and find out if there was anything else going on, and that’s what I did.”

 
11

For additional guidance we turn to the United States Supreme 

Court’s recent decision in Ohio v. Clark, 576 U.S. ___, 135 S. Ct. 2173, 

192 L. Ed. 2d 306 (2015). Because of its recent vintage, we have not 

previously considered or discussed this case. In addition, the court of 

appeals did not have the benefit of Clark when it rendered its decision in 

this case.

In Clark, the defendant was alleged to have physically abused his 

girlfriend’s two young children, one of whom was a three-year-old boy, 

L.P. Id. at ___, 135 S. Ct. at 2177–78, 192 L. Ed. 2d at 312. The boy was 

found not competent to testify, but his statements to two teachers 

identifying the defendant as the person who had caused his injuries were 

admitted by the trial court. Id. at ___, 135 S. Ct. at 2178, 192 L. Ed. 2d 

at 312–13.

On appeal, both the Ohio Court of Appeals and the Ohio Supreme 

Court found that the admission of the young boy’s statements to his 

teachers violated the Confrontation Clause. Id. at ___, 135 S. Ct. at 

2178, 192 L. Ed. 2d at 313. Noting that the teachers were under a legal 

obligation to report child abuse to government authorities, the Ohio 

Supreme Court found that the statements qualified as testimonial 

because the primary purpose of the teachers’ questioning “was not to 

deal with an existing emergency but rather to gather evidence potentially 

relevant to a subsequent criminal prosecution.” Id. The United States 

Supreme Court reversed and found no violation. Id. at ___, 135 S. Ct. at

2179, 2181, 192 L. Ed. 2d at 313, 315.4

4The reversal was unanimous. Clark, 576 U.S. at ___, 135 S. Ct. at 2177, 192 

L. Ed. 2d at 311. Justice Alito wrote the opinion for the Court, which a total of six 

justices joined. Id. Justice Scalia wrote a separate opinion concurring in the judgment. 

Justice Thomas also wrote a separate opinion concurring in the judgment. Id. Justice 

Ginsburg joined Justice Scalia’s separate opinion. Id.

 
12

The Court’s opinion first summarized the Court’s Confrontation 

Clause precedents, including Crawford, which announced and 

expounded on the primary-purpose test. Id. at ___, 135 S. Ct. at 2179–

81, 192 L. Ed. 2d at 313–15. The Court then went on,

Thus, under our precedents, a statement cannot fall 

within the Confrontation Clause unless its primary purpose 

was testimonial. “Where no such primary purpose exists, 

the admissibility of a statement is the concern of state and 

federal rules of evidence, not the Confrontation Clause.” But 

that does not mean that the Confrontation Clause bars every 

statement that satisfies the “primary purpose” test. We have 

recognized that the Confrontation Clause does not prohibit 

the introduction of out-of-court statements that would have 

been admissible in a criminal case at the time of the 

founding. Thus, the primary purpose test is a necessary, 

but not always sufficient, condition for the exclusion of outof-court statements under the Confrontation Clause.

Id. at ___, 135 S. Ct. at 2180–81, 192 L. Ed. 2d at 315 (citations omitted) 

(quoting Michigan v. Bryant, 562 U.S. 344, 359, 131 S. Ct. 1143, 1155, 

179 L. Ed. 2d 93, 107–08 (2011)). In short, the Court made clear that 

out-of-court statements could fail the primary-purpose test and still be 

admissible notwithstanding the Confrontation Clause.

Applying these principles to Clark’s prosecution, the Supreme 

Court majority first examined the primary-purpose test. It found that 

the boy’s statements “clearly were not made with the primary purpose of 

creating evidence for Clark’s prosecution.” Id. at ___, 135 S. Ct. at 2181, 

192 L. Ed. 2d at 315. Rather, as the Court explained,

L.P. statements occurred in the context of an ongoing 

emergency involving suspected child abuse. When L.P’s

teachers noticed his injuries, they rightly became worried 

that the 3-year-old was the victim of serious violence. 

Because the teachers needed to know whether it was safe to 

release L.P. to his guardian at the end of the day, they 

needed to determine who might be abusing the child. Thus, 

the immediate concern was to protect a vulnerable child who 

needed help.
13

Id. at ___, 135 S. Ct. at 2181, 192 L. Ed. 2d at 315–16 (footnote omitted). 

The Court went on,

There is no indication that the primary purpose of the 

conversation was to gather evidence for Clark’s prosecution. 

On the contrary, it is clear that the first objective was to 

protect L.P.. At no point did the teachers inform L.P. that 

his answers would be used to arrest or punish his abuser. 

L.P. never hinted that he intended his statements to be used 

by the police or prosecutors. And the conversation between 

L.P. and his teachers was informal and spontaneous. The 

teachers asked L.P. about his injuries immediately upon 

discovering them, in the informal setting of a preschool 

lunchroom and classroom, and they did so precisely as any 

concerned citizen would talk to a child who might be the 

victim of abuse.

Id. at ___, 135 S. Ct. at 2181, 192 L. Ed. 2d at 316.

Yet the Court did not leave the analysis there. The Court stated 

that “L.P.’s age fortifies our conclusion that the statements in question 

were not testimonial. Statements by very young children will rarely, if 

ever, implicate the Confrontation Clause.” Id. at ___, 135 S. Ct. at 2181–

82, 192 L. Ed. 2d at 316. The Court commented that “it is extremely 

unlikely that a 3-year-old child in L.P.’s position would intend his 

statements to be a substitute for trial testimony.” Id. at ___, 135 S. Ct. at 

2182, 192 L. Ed. 2d at 316. Additionally, the Court emphasized that in 

the eighteenth century, out-of-court statements by children who were 

incompetent to testify due to their youth were regularly admitted in 

criminal cases. Id. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 316–17. 

Therefore, in the Court’s view, “It is . . . highly doubtful that statements 

like L.P.’s ever would have been understood to raise Confrontation 

Clause concerns.” Id. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 317. 

Also, the Court reiterated that the statements were made to teachers, not 

law enforcement officials:
14

Statements made to someone who is not principally charged 

with uncovering and prosecuting criminal behavior are 

significantly less likely to be testimonial than statements 

given to law enforcement officers. It is common sense that 

the relationship between a student and his teacher is very 

different from that between a citizen and the police.

Id. (citation omitted). The Court concluded, “In light of these 

circumstances, the Sixth Amendment did not prohibit the State from 

introducing L.P.’s statements at trial.” Id.

Based on the Supreme Court’s opinion in Clark, we do not believe 

admission of Dr. Harre’s testimony and report violated J.C.’s rights of 

confrontation under the Sixth Amendment. Several points must be 

noted. A.W. is a very young child, and the Supreme Court said in Clark

that “[s]tatements by very young children will rarely, if ever, implicate the 

Confrontation Clause.” Id. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 

316. The Court supported this statement with historical evidence 

including an approving citation to a law review article. Id. at ___, 135 

S. Ct. at 2182, 192 L. Ed. 2d at 316–17 (citing Thomas D. Lyon & 

Raymond LaMagna, The History of Children’s Hearsay: From Old Bailey to 

Post-Davis, 82 Ind. L.J. 1029 (2007) [hereinafter Lyon]). The article 

makes clear that in eighteenth century Britain, “the hearsay of 

unavailable child witnesses was routinely admitted.” Lyon, 82 Ind. L.J. 

at 1030. Thus, A.W.’s age alone may settle the Sixth Amendment 

inquiry.5

5In his separate opinion concurring in the judgment, Justice Scalia gave primacy 

to the primary-purpose test. Clark, 576 U.S. at ___, 135 S. Ct. at 2184–85, 192 L. Ed. 

2d at 319–20 (Scalia, J., concurring in the judgment). He explained,

The Confrontation Clause categorically entitles a defendant to be 

confronted with the witnesses against him; and the primary-purpose test 

sorts out, among the many people who interact with the police 

informally, who is acting as a witness and who is not. Those who fall into 

the former category bear testimony, and are therefore acting as 

“witnesses,” subject to the right of confrontation.

 
15

Also, A.W.’s statements were made to a physician, with no law 

enforcement representative in the room or even observing the encounter 

remotely. In Clark, the Supreme Court stressed “that the relationship 

between a student and teacher is very different from that between a 

citizen and the police.” Id. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 

317. The same is true of the relationship between a small child and 

physician.

Under a pure primary-purpose test, the issue would undoubtedly 

be closer—certainly closer than Clark.6 Yet even here a number of 

Id. at ___, 135 S. Ct. at 2185, 192 L. Ed. 2d at 320. Justice Scalia concurred in the 

result because, in his view, the primary-purpose test had not been met. Id. at ___, 135 

S. Ct. at 2184, 192 L. Ed. 2d at 318–19. He also criticized parts of the majority opinion 

going beyond the primary-purpose test as “dicta” that in his view were “not binding.” 

Id. at ___, 135 S. Ct. at 2184, 192 L. Ed. 2d at 319.

The academic community is only just starting to weigh in on Clark. The only 

published law review article we have been able to find by a law professor—as opposed to 

a blog or a law student note—reviewed the Court’s entire opinion and then concluded, 

“Which of these points was essential to the Court’s conclusion that the Confrontation 

Clause did not apply was not obvious.” David L. Noll, Constitutional Evasion and the 

Confrontation Puzzle, 56 B.C. L. Rev. 1899, 1917 n.158 (2015).

Furthermore, “[c]arefully considered language of the Supreme Court, even if 

technically dictum, generally must be treated as authoritative.” United States v. Oakar, 

111 F.3d 146, 153 (D.C. Cir. 1997) (alteration in original) (quoting Doughty v. 

Underwriters at Lloyd’s, London, 6 F.3d 856, 861 n.3 (1st Cir. 1993)).

It is also noteworthy that Justice Scalia—widely known as an originalist—did not

reject the possibility that out-of-court statements by small children would be admissible 

today based on their admissibility at common law, even if they were deemed testimonial 

under the primary-purpose test. All he said was that once evidence is “testimonial,” 

i.e., as determined under the primary-purpose test, the burden rests with the 

prosecutor “to prove a long-established practice” of introducing this category of evidence 

“for which cross-examination was not typically necessary.” Clark, 576 U.S. at ___, 135 

S. Ct. at 2185, 192 L. Ed. 2d at 320. Justice Scalia also cited the Lyon and LaMagna 

article with approval. Id. at ___, 135 S. Ct. at 2184, 192 L. Ed. 2d at 319. So it is 

entirely plausible that Justice Scalia would have agreed: Out-of-court statements by 

very young children who are not competent to testify do not raise Confrontation Clause 

concerns today because they did not raise admissibility concerns in the eighteenth 

century.

6For one thing, A.W.’s statements were not made “in the context of an ongoing 

emergency,” but well after law enforcement had commenced their investigation. Cf. 

Clark, ___, U.S. at 135 S. Ct. at 2181, 192 L. Ed. 2d at 315.

___________________________________
16

factors weigh against a Confrontation Clause violation. The primarypurpose test asks whether the main purpose of the conversation was to 

“creat[e] an out-of-court substitute for trial testimony.” Id. at ___, 135 

S. Ct. at 2180, 192 L. Ed. 2d at 315 (alteration in original) (quoting 

Bryant, 562 U.S. at 358, 131 S. Ct. at 1155, 179 L. Ed. 2d at 107. At the 

outset, we need to ask, “Whose primary purpose?” A.W.’s or Dr. Harre’s? 

The Court applied the primary-purpose test by considering the matter 

from the perspective of both interviewer and interviewee. See id. at ___, 

135 S. Ct. at 2181, 192 L. Ed. 2d at 316 (noting that “the first objective 

was to protect L.P.” and L.P. “never hinted that he intended his 

statements to be used by the police or prosecutors”). The Court also 

stressed that the conversation was “informal and spontaneous.” Id.

Weighing all the circumstances here, and considering the role of 

both participants in the conversation, the following factors support a 

determination that the Confrontation Clause was not violated under the 

primary-purpose test: First, it is obvious that A.W.’s purpose was not to 

make a statement to Dr. Harre that could be used to prosecute J.C.

Second, the setting was informal. Dr. Harre and A.W. met by themselves 

at Dr. Harre’s office. Dr. Harre first asked A.W. to make letters on an 

easel board, and went over truth–lie differences. She then conducted a 

“medical review of systems,” asking A.W. about areas of discomfort or 

signs of illness. After doing so, she asked A.W. if she could remember 

what happened with her brother’s friend. Dr. Harre then conducted a 

full physical exam, at that point with A.W.’s father present. Dr. Harre 

took notes throughout the entire process, but no recording took place. 

Dr. Harre later dictated from her notes. The discussion of the incident 

with J.C. represented a single paragraph in the five-page report. 
17

Third, while it appears that law enforcement made the original 

referral that led to Mattox’s forensic interview in early July, any law 

enforcement role in arranging Dr. Harre’s session with A.W. in late July

would have been more attenuated. The two encounters took place three 

weeks apart, and Dr. Harre did not have access to the forensic interview 

when she examined and spoke with A.W. Furthermore, according to Dr. 

Harre, she receives referrals from “police department[s], [DHS], other 

physicians, therapists, [and] emergency rooms,” and she performed the 

standard evaluation with A.W. that she would perform with “any other 

child.”

To be fair, when we view the matter from Dr. Harre’s perspective 

alone, the session likely served “two purposes”—analyzing A.W.’s medical 

condition and memorializing her story. See State ex rel. Juv. Dep’t of 

Multnomah Cty. v. S.P., 215 P.3d 847, 865 (Or. 2009) (en banc) (finding,

pre-Clark, a Sixth Amendment violation when a three-year-old’s 

statements during an interview with a child abuse response center were 

admitted at trial). Dr. Harre was providing medical assessment, but her 

report was addressed to the assistant county attorney who later 

prosecuted the case.

However, when we consider the totality of circumstances under the 

primary-purpose test, as well as the additional points emphasized by the 

Supreme Court in Clark, we find no Sixth Amendment violation. Several 

things distinguish this case from Bentley and the Oregon Supreme 

Court’s decision in S.P. No law enforcement personnel attended or 

monitored Dr. Harre’s session with A.W. Cf. Bentley, 739 N.W.2d at 297; 

S.P., 215 P.3d at 860. In fact, a recorded forensic interview with law

enforcement on site had already occurred when Dr. Harre met with A.W.

without law enforcement. Moreover, A.W. was considerably younger than 
18

the ten-year-old victim in Bentley7—an important consideration 

according to the Clark Court.

Finally, and crucially, we cannot ignore the Supreme Court’s 

pronouncement that “[s]tatements by very young children will rarely, if 

ever, implicate the Confrontation Clause,” as well as the Court’s reliance 

on the historical record, which indicates that hearsay statements of child 

witnesses who were incompetent to testify were admitted at common law. 

Clark, 576 U.S. at ___, 135 S. Ct. at 2181–82, 192 L. Ed. 2d at 316–17.

Since J.C. does not urge us to apply a different approach under 

article I, section 10 of the Iowa Constitution, we decline to do so in this 

case. Thus, we find that admission of Dr. Harre’s testimony and written 

report did not violate J.C.’s confrontation rights under either the Sixth 

Amendment or article I, section 10 of the Iowa Constitution.

Still, we close our discussion of Dr. Harre’s interview with a few 

words of caution. Under a primary-purpose test, we do not believe an 

interview whose primary purpose is testimonial generally can be salvaged 

just because it is wedged inside a medical exam. The primary-purpose 

test applies to “the interrogation” that is at issue. Id. at ___, 135 S. Ct. at 

2180, 192 L. Ed. 2d at 314. In addition, we do not believe that arranging 

a prior recorded forensic interview necessarily insulates a subsequent 

less-formal interview from attack under the Confrontation Clause. 

Lastly, as stated already, we jealously guard our authority to interpret 

the Iowa Constitution independently in a future case, particularly if a 

litigant argues such an interpretation in her or his briefing.

7We noted in Bentley that the victim functioned at a seven-year-old level, see 

739 N.W.2d at 300, but this is still much older than A.W.’s chronological age or the 

level of her communication skills.

 
19

B. Confrontation Clause—Mattox. We now turn to whether the 

admission of Mattox’s testimony violated J.C.’s Confrontation Clause 

rights. Despite A.W.’s very young age, we will assume without deciding 

that a violation occurred. Mattox’s job title is “forensic interviewer.” See 

Bentley, 739 N.W.2d at 299 (noting that the interview was described by a 

police officer as a “forensic interview”). Law enforcement made a referral 

call for Mattox’s interview of A.W., and law enforcement was present 

when it occurred. The interview was recorded, and the recording was 

provided to the county attorney’s office. See id. at 300 (noting that a 

copy of the tape was provided to police and marked as evidence).

Having said this, we agree with the court of appeals that any error 

was harmless. See Kennedy, 846 N.W.2d at 527 (“The erroneous 

admission of evidence in violation of the Confrontation Clause is a 

constitutional error subject to a harmless-error analysis.”). To find a 

constitutional error harmless, “[w]e are required to ask whether the force 

of the evidence ‘is so overwhelming as to leave it beyond a reasonable 

doubt that the verdict resting on that evidence would have been the 

same’ without the erroneously admitted evidence.” Id. at 528 (quoting 

Yates v. Evatt, 500 U.S. 391, 405, 111 S. Ct. 1884, 1893, 114 L. Ed. 2d 

432, 449 (1991)). In this context, harmless error means “no reasonable 

possibility that [the erroneously admitted] evidence might have 

contributed to the [adjudication].” Id. (quoting State v. Hensley, 534 

N.W.2d 379, 383 (Iowa 1995)). The State bears the burden of 

establishing harmless error. Id. at 527.

Here, the other evidence against J.C. was quite strong. Unlike in 

many child abuse cases, there were other eyewitnesses to the act of 

abuse besides the victim—namely M.M., I.W., and E.W. As the juvenile 

court put it, “The eyewitness accounts alone are quite persuasive in this 
20

case and appear credible due to the differences which are explained by 

the order they entered the room.” Furthermore, as noted by the juvenile 

court, there was recorded evidence of J.C.’s “heightened interest in 

sexual activity on the date in question.” J.C.’s testimony that he was 

trying to get A.W. out of the room was contradicted by the eyewitnesses; 

furthermore, J.C. had no explanation for the cell phone recording. And 

Dr. Harre’s testimony and report provided further confirmation that an 

assault with intent to commit sexual abuse had occurred. In short, the 

remaining evidence was so strong that we see no reasonable possibility 

Mattox’s testimony might have contributed to the adjudication. See id.

at 528.

C. Competency of A.W. J.C. also challenges the admission of 

A.W.’s out-of-court statements to Dr. Harre on the basis that A.W. was 

incompetent to testify herself and, thus, Dr. Harre should not have been 

allowed to testify regarding A.W.’s statements. We will assume for the 

purposes of this analysis that A.W. was incompetent to testify. We have 

not previously addressed whether out-of-court statements made by 

incompetent witnesses may be admissible under exceptions to the 

hearsay rule.

Dr. Harre’s testimony and her report of her interview with A.W. 

were admitted under Iowa Rule of Evidence 5.803(4) as statements made 

for the purpose of obtaining medical diagnosis or treatment. 

Significantly, J.C. does not appeal that ruling. Also, in Clark, the United 

States Supreme Court implicitly rejected the argument that a child’s 

incompetence to appear as a trial witness foreclosed the admission of 

that same child’s out-of-court statements:

Clark is also wrong to suggest that admitting L.P.’s

statements would be fundamentally unfair given that Ohio 

law does not allow incompetent children to testify. In any 
21

Confrontation Clause case, the individual who provided the 

out-of-court statement is not available as an in-court 

witness, but the testimony is admissible under an exception 

to the hearsay rules and is probative of the defendant’s guilt. 

The fact that the witness is unavailable because of a different 

rule of evidence does not change our analysis. 

Clark, 576 U.S. at ___, 135 S. Ct. at 2183, 192 L. Ed. 2d at 318. In 

addition, the Supreme Court has rejected the argument that an 

incompetent declarant’s out-of-court statements are “presumptively 

unreliable.” Idaho v. Wright, 497 U.S. 805, 824, 110 S. Ct. 3139, 3151, 

111 L. Ed. 2d 638, 658 (1990).

Other courts have reached similar conclusions. See Morgan v. 

Foretich, 846 F.2d 941, 949 (4th Cir. 1988) (“The fact that a young child 

may be incompetent to testify at trial affects neither prong of the two-part 

test for admitting evidence under 803(4).”); Borchgrevink v. State, 239 

P.3d 410, 423 (Alaska Ct. App. 2010) (“[C]ourts have admitted hearsay 

under this exception even when the person who made the out-of-court 

statement was incompetent to testify.”), overruled on other grounds by 

Moreno v. State, 341 P.3d 1134 (Alaska 2015); State v. Waddell, 504 

S.E.2d 84, 90 (N.C. Ct. App. 1998) (rejecting the argument that the 

child’s incompetence rendered his out-of-court statements for purposes 

of medical diagnosis or treatment inadmissible); State v. Muttart, 875 

N.E.2d 944, 954 (Ohio 2007) (“[R]egardless of whether a child less than 

ten years old has been determined to be competent to testify . . . , the 

child’s statements may be admitted at trial as an exception to the 

hearsay rule pursuant to [rule] 803(4) if they were made for purposes of 

medical diagnosis or treatment.”). But see B.B. v. Commonwealth, 226 

S.W.3d 47, 51 (Ky. 2007) (holding that a child victim’s out-of-court 

statements should have been excluded because “the immaturity that 
22

rendered her incompetent at trial would have existed at the time of the 

interview as well”). As one treatise has said,

Out-of-court statements for purposes of medical 

diagnosis or treatment may in some instances be admissible 

despite lack of testimonial competence when the statement 

was made. Statements for purposes of diagnosis or 

treatment are considered reliable because the patient has an 

incentive to be truthful with the physician. A child who 

lacks one or more elements of testimonial competence may 

nevertheless possess the incentive required by the diagnosis 

or treatment exception.

John E.B. Myers, Myers on Evidence of Interpersonal Violence, Child 

Maltreatment, Intimate Partner Violence, Rape, Stalking, and Elder Abuse

§ 7.20 (2016) (footnote omitted).

We affirm the juvenile court’s ruling that A.W.’s incompetence to 

testify at trial did not render Dr. Harre’s testimony and report per se 

inadmissible.

IV. Conclusion.

For the foregoing reasons, we affirm J.C.’s adjudication.

DECISION OF COURT OF APPEALS AFFIRMED AND JUVENILE 

COURT JUDGMENT AFFIRMED.

All justices concur except Cady, C.J., who concurs specially, and 

Wiggins, J., and Hecht and Appel, JJ., who dissent.
23

#14–0357, In re J.C.

CADY, Chief Justice (concurring specially).

I join in the opinion of the majority, but would not place weight on 

the eighteenth century practice of admitting statements of very young 

children. I otherwise agree the totality of the circumstances supports the 

conclusion that the primary purpose of the interview by Dr. Harre was 

not testimonial. 
24

#14–0357, In re J.C.

WIGGINS, Justice (dissenting).

I dissent. I disagree with the majority opinion’s analysis 

concerning the significance of A.W.’s age in determining whether the 

introduction of her statements violated J.C.’s rights under the 

Confrontation Clause contained in the Sixth Amendment to the United 

States Constitution. Additionally, I disagree with the conclusion reached 

in the majority opinion and the special concurrence as to the primary 

purpose of A.W.’s statements. Because the primary-purpose test 

requires a court to consider the purposes of all participants involved in 

eliciting a statement as part of the totality of the circumstances, it is 

evident that A.W.’s statements were testimonial.

Ohio v. Clark is the only case in which the United States Supreme 

Court has addressed whether statements a victim made to someone 

other than a law enforcement officer may violate the Confrontation 

Clause. 576 U.S. ___, ___, 135 S. Ct. 2173, 2180, 192 L. Ed. 2d 306, 

314–15 (2015). In Clark, the Court recognized “at least some statements 

to individuals who are not law enforcement officers could conceivably 

raise confrontation concerns.” Id. at ___, 135 S. Ct. at 2181, 192 L. Ed. 

2d at 315. The Court also affirmed that determinations as to whether 

such statements are testimonial turn on the primary-purpose test. Id. 

The primary-purpose test requires a court to determine “whether, 

in light of all the circumstances, viewed objectively, the ‘primary purpose’ 

of the conversation was to ‘creat[e] an out-of-court substitute for trial 

testimony.’ ” Id. at ___, 135 S. Ct. at 2180, 192 L. Ed. 2d at 315 (quoting 

Michigan v. Bryant, 562 U.S. 344, 358, 131 S. Ct. 1143, 1155, 179 L. Ed. 

2d 93, 107 (2011)). As the Court has previously explained,
25

[T]he relevant inquiry is not the subjective or actual purpose 

of the individuals involved in a particular encounter, but 

rather the purpose that reasonable participants would have 

had, as ascertained from the individuals’ statements and 

actions and the circumstances in which the encounter 

occurred. 

Bryant, 562 U.S. at 360, 131 S. Ct. at 1156, 179 L. Ed. 2d at 108–09. 

The primary-purpose determination demands objective analysis of 

the circumstances of the encounter and the statements and actions of 

both interviewer and interviewee. See id. at 360, 131 S. Ct. at 1156, 179 

L. Ed. 2d at 108. In other words, a court must look to the totality of the 

circumstances and consider the purposes of all participants involved in 

obtaining a statement when deciding whether a statement’s primary 

purpose was testimonial.

The Clark Court made two additional observations concerning 

application of the primary-purpose test. First, statements made to 

persons who are “not principally charged with uncovering and 

prosecuting criminal behavior are significantly less likely to be 

testimonial than statements given to law enforcement officers.” Clark, 

576 U.S. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 317. Second, a very 

young child who is being abused is “extremely unlikely . . . [to] intend his 

statements to be a substitute for trial testimony.” Id. at ___, 135 S. Ct. at 

2182, 192 L. Ed. 2d at 316. 

I agree with most of the majority opinion’s analysis of Clark. 

However, the majority opinion essentially reads Clark as holding 

statements by very young children never implicate the Confrontation 

Clause, unless (perhaps) such statements were made to or in the 

presence of a law enforcement officer.8 The Clark Court stopped far 

8When no single rationale explaining the result enjoys the assent of a majority of 

the Justices sitting, the holding of a fragmented court is the position taken by the

 
26

short of adopting such a rule. The age of the three-year-old child, L.P., 

who made the statements at issue in Clark merely “fortified” the Court’s 

conclusion that the statements he made were nontestimonial insofar as 

his youth made it “extremely unlikely” he intended those statements to 

serve as a substitute for trial testimony. Id. at ___, 135 S. Ct. at 2181–

82, 192 L. Ed. 2d at 316. Although the Court acknowledged it was 

doubtful statements a three-year-old child made to his teachers would 

have been understood to raise confrontation concerns at the time of the 

founding, the Court concluded the statements at issue were 

nontestimonial by relying on the primary-purpose test. Id. at ___, 135 

S. Ct. at 2181–82, 192 L. Ed. 2d at 315–16; see id. at ___, 135 S. Ct. at 

2184–85, 192 L. Ed. 2d at 319–20 (Scalia, J., concurring in the 

judgment) (discussing the majority holding and pointing out that the 

burden is upon the prosecutor who seeks to introduce testimonial 

evidence despite the Confrontation Clause “to prove a long-established 

practice of introducing specific kinds of evidence, such as dying 

declarations, for which cross-examination was not typically necessary” 

(citation omitted)). 

The Clark Court acknowledged the existence of “strong evidence 

that statements made in circumstances similar to those facing L.P. and his 

teachers were admissible at common law” and indicated it is “thus highly 

doubtful that statements like L.P.’s ever would have been understood to 

raise Confrontation Clause concerns.” Id. at ___, 135 S. Ct. at 2182, 192 

L. Ed. 2d at 316–17 (majority opinion) (emphasis added). However, the 

Justices who concurred in the decision on the narrowest grounds. Marks v. United 

States, 430 U.S. 188, 193, 97 S. Ct. 990, 993, 51 L. Ed. 2d 260, 266 (1977).

___________________________________
27

Court in no way suggested historical evidence was critical to its holding, 

let alone adopted a categorical rule that statements made by very young 

children do not raise confrontation concerns. 

For this reason, most legal scholars to consider Clark thus far have 

recognized as dictum the language in Clark suggesting the fact that an 

out-of-court statement’s primary purpose was testimonial as “necessary, 

but not always sufficient” for its exclusion under the Confrontation 

Clause. See Richard D. Friedman, Ohio v. Clark: Some Initial Thoughts,

The Confrontation Blog (June 19, 2015, 1:09 AM), 

http://confrontationright.blogspot.com/2015/06/ohio-v-clark-someinitial-thoughts.html (acknowledging the “necessary but not always 

sufficient” language as “potentially dangerous” dictum); Paul F. 

Rothstein, A Comment on the Supreme Court’s Decision in Ohio v. Clark: 

The Court’s Confrontation Clause Jurisprudence Evolves (2015), 

http://ssrn.com/abstract=2627748 (noting Clark provides an “escape 

hatch for future cases—one that is clearly dictum”); see also Chad 

Squitieri, Note, Confronting Big Data: Applying the Confrontation Clause to 

Government Data Collection, 101 Va. L. Rev. 2011, 2022 n.71 (2015) 

(describing the “necessary, but not always sufficient” language as 

dictum). Justice Scalia, joined by Justice Ginsburg in an opinion 

concurring in the result, agreed. Clark, 576 U.S. at ___, 135 S. Ct. at 

2184–85, 192 L. Ed. 2d at 318–20 (Scalia, J., concurring in the 

judgment). 

In my view, the majority opinion rests on an expansive reading of 

dictum in Clark to adopt the very rule the Clark majority refused to 

adopt. Simply put, the Clark majority declined to hold that statements 

made by very young children or statements made to individuals other 

than law enforcement officers never implicate the Confrontation Clause. 
28

Rather, as the Clark majority explained, “Courts must evaluate 

challenged statements in context, and part of that context is the 

questioner’s identity.” Id. at ___, 135 S. Ct. at 2182, 192 L. Ed. 2d at 

317 (majority opinion). 

Of course, the analysis in Clark concerning whether the statements 

at issue in that case were testimonial is instructive. Because the threeyear-old child who made those statements was so young, in applying the 

primary-purpose test the Court focused on the objective circumstances 

indicating the purpose his teachers had in eliciting them. Id. at ___, 135 

S. Ct. at 2181, 192 L. Ed. 2d at 315–16. The Court concluded the 

statements were nontestimonial because his teachers were responding to 

an “ongoing emergency involving suspected child abuse” and sought to 

“protect the victim from future attacks.” Id. In short, there was simply 

“no indication that the primary purpose of the conversation was to gather 

evidence for Clark’s prosecution” given that the conversation between the 

child and his teachers was “informal and spontaneous.” Id. at ___, 135 

S. Ct. at 2181, 192 L. Ed. 2d at 316. 

In applying the primary-purpose test, it is important to consider 

objectively all the circumstances surrounding the statements at issue, 

not just those suggesting the statements were nontestimonial. Here, two 

objective circumstances weigh in favor of the conclusion that A.W.’s 

statements were nontestimonial. First, Dr. Harre is not a police officer. 

Second, A.W. was only four-and-a-half-years old when she made the 

statements to Dr. Harre. 

On the other side of the scale are several circumstances suggesting 

“in light of all the circumstances, viewed objectively, the ‘primary 

purpose’ of the conversation was to ‘creat[e] an out-of-court substitute 

for trial testimony.’ ” Id. at ___, 135 S. Ct. at 2180, 192 L. Ed. 2d at 315 
29

(quoting Bryant, 562 U.S. at 358, 131 S. Ct. at 1155, 179 L. Ed. 2d at 

107). In contrast to Clark, there was ample circumstantial evidence to 

suggest the purpose of the individuals who elicited the statement at issue 

was to create an out-of-court substitute for trial testimony and virtually 

no evidence to suggest they had any other purpose.

First, it is clear law enforcement instructed A.W.’s parents to take 

her to Dr. Harre’s office. Detective Robinson testified as follows:

Q. When did you first become involved with the [J.C.] 

case? A. I don’t remember the exact date, but it was 

assigned to me at a certain time. That’s when and how I 

became involved in it.

Q. Do you know if the family of [the victim] made 

initial contact with you or did they make initial contact with 

another officer? A. They made initial contact with the front 

desk of our police department and filed a report there.

Q. And when was it assigned to you? A. I do not 

know off the top of my head.

Q. But would it have been shortly after they made 

contact? A. Yes. Yes, within a couple days.

Q. And what’s sort of the standard procedure for 

investigating this type of case? A. Usually, after I receive 

the initial case, I’ll read the report and find out who I have 

involved in that investigation, and we’ll call each one in as a 

witness.

With this particular case having a victim, especially a 

young victim, I got ahold of her mother and father and had 

them take her down to the Child Protection Center where 

Dr. Harre’s office is to be examined by her, and also 

specifically interviewed by Michele Mattox, who is a child 

forensic interviewer through that same department as well.

Q. And did you interview the other children involved 

in this situation? A. I did. 

Thus, Detective Robinson testified he sought to have Dr. Harre’s office 

perform the investigative task of interviewing A.W. because she was so 
30

young. In contrast, Detective Robinson interviewed the older children 

present at the time of the alleged delinquent act himself. Moreover, as 

his testimony makes clear, Detective Robinson instructed A.W.’s parents 

to take her to Dr. Harre because doing so was part of the Davenport 

Police Department’s “standard operating procedure for investigating this 

type of case.” 

The fact that the Davenport Police Department regularly utilizes 

Dr. Harre’s office to interview young children who are suspected victims 

of abuse suggests Dr. Harre’s office acts on behalf of the police in 

conducting such interviews. The Code actively encourages the police and 

others involved in prosecuting suspected child abuse to work 

cooperatively with medical and mental health professionals such as 

Dr. Harre to conduct child abuse investigations and make child abuse 

assessments. The Code provides,

4. a. A child protection assistance team involving the 

county attorney, law enforcement personnel, and personnel 

of the department of human services shall be established for 

each county by the county attorney. However, by mutual 

agreement, two or more county attorneys may establish a 

single child protection assistance team to cover a 

multicounty area. A child protection assistance team, to the 

greatest extent possible, may be consulted in cases involving 

a forcible felony against a child who is less than age fourteen 

in which the suspected offender is the person responsible for 

the care of a child, as defined in section 232.68. A child

protection assistance team may also be utilized in cases 

involving a violation of chapter 709 or 726 or other crime 

committed upon a victim as defined in subsection 1.

b. A child protection assistance team may also consult 

with or include juvenile court officers, medical and mental 

health professionals, physicians or other hospital-based 

health professionals, court-appointed special advocates, 

guardians ad litem, and members of a multidisciplinary team 

created by the department of human services for child abuse 

investigations. A child protection assistance team may work 

cooperatively with the early childhood Iowa area board 
31

established under chapter 256I. The child protection

assistance team shall work with the department of human 

services in accordance with section 232.71B, subsection 3, 

in developing the protocols for prioritizing the actions taken 

in response to child abuse assessments and for law 

enforcement agencies working jointly with the department at 

the local level in processes for child abuse assessments. The 

department of justice may provide training and other 

assistance to support the activities of a child protection

assistance team.

Iowa Code § 915.35(4)(a)–(b) (2015).

Second, the evidence confirms the forensic interviewer also referred 

A.W. to Dr. Harre’s office. As the majority points out, Dr. Harre testified 

that A.W. was referred to her by the emergency room that saw A.W. on 

July 3, 2013. However, Dr. Harre stated in her report that A.W. was 

referred to the center by the emergency room. Dr. Harre indicated in the 

second sentence of her report that A.W. was referred to her office by the 

forensic interviewer. Moreover, as the majority opinion acknowledges, 

the forensic interviewer only got involved in the investigation after the 

police “made a referral call.”

The further significance of the fact that the forensic interviewer 

also referred A.W. to Dr. Harre lies in Dr. Harre’s recognition that the 

forensic interviewer’s primary concern is investigative, not diagnostic or 

therapeutic. Dr. Harre testified as follows concerning the role of the 

forensic interviewer in child abuse investigations:

Q. And is the forensic interview helpful in pursuing a 

diagnosis and treatment for the child? A. It’s helpful in the 

investigative aspect. Michele does—if she does recognize 

that there are concerns that would benefit from a medical 

assessment, she will indicate that she definitively thinks that 

a medical assessment should be included in the process to 

the investigative team and to the family. 
32

If the purpose of referring a child for a medical assessment is purely 

diagnostic or therapeutic, there would be no need for the forensic 

interviewer to alert “the investigative team” of anything.

Third, the timing of the conversation between Dr. Harre and A.W. 

and the information available to Dr. Harre before that conversation took 

place suggests her primary concern was not diagnostic or therapeutic. If 

the purpose of Dr. Harre’s conversation with A.W. was diagnostic or 

therapeutic, common sense suggests Dr. Harre would have sought, or 

the forensic interviewer would have provided, a copy of the forensic 

interviewer’s report or a copy of the recorded interview before Dr. Harre 

met with A.W. Yet Dr. Harre testified she had no knowledge of the 

statements A.W. made to the forensic interviewer prior to speaking with 

A.W.:

Q. What information were you provided—let me 

rephrase that. Were you provided a copy or information 

regarding Michele Mattox’s interview of the child prior to 

your interview? A. No.

Q. So you weren’t familiar at the time of the interview 

with any of the statements that were made by [A.W.] to 

Michele Mattox? A. Correct. 

The fact that Dr. Harre remained unfamiliar with the content of the 

forensic interview is particularly conspicuous in light of the surrounding 

circumstances. Dr. Harre and the forensic interviewer both work at the 

Child Protection Response Center. Thus, when Dr. Harre examined 

A.W., she had available to her a complete account of what happened to 

A.W. in her own words prepared by someone who worked in the very 

same office. The forensic interviewer recorded her interview with A.W. on 

July 10. Dr. Harre met with A.W. on July 31, three weeks after the 
33

forensic interviewer conducted the interview and forwarded her notes to 

law enforcement. 

Similarly, the delay that occurred between the alleged delinquent 

act on July 2 and the conversation between Dr. Harre and A.W. suggests 

the purpose of that conversation was not diagnostic or therapeutic. If 

Dr. Harre’s purpose had been to assess whether A.W. required medical or 

mental health treatment due to the alleged delinquent act, it seems 

unlikely that Dr. Harre would have assessed A.W. on July 31, nearly a 

full month after J.C. allegedly committed the delinquent act.

Fourth, Dr. Harre sent her report to the county attorney’s office. 

This fact weighs significantly in favor of concluding the statements at 

issue were testimonial because it confirms that Dr. Harre understood 

herself to be cooperating with law enforcement in the investigation of the 

allegations against J.C. In fact, Dr. Harre not only sent the report to the 

office charged with prosecuting the alleged delinquent act, she also 

addressed it to the very individual responsible for prosecuting J.C. This 

fact belies any claim that Dr. Harre did not have a primary purpose of 

assisting law enforcement in prosecuting J.C. 

Finally, the circumstances existing when the conversation between 

Dr. Harre and A.W. occurred are unlike those the Supreme Court relied 

upon to conclude the statements in Clark were nontestimonial. Notably, 

Dr. Harre interviewed and examined A.W. long after the police 

department had opened an investigation into the alleged delinquent act. 

In Clark, the victim made statements to his teachers prior to the 

initiation of any investigation. 576 U.S. at ___, 135 S. Ct. at 2178, 192 

L. Ed. 2d at 312.

Furthermore, because Dr. Harre and A.W. spoke nearly a month 

after the alleged delinquent act occurred, the statements A.W. made 
34

during that conversation were neither made nor elicited “in the context of 

an ongoing emergency” in which “the immediate concern was to protect a 

vulnerable child” from the threat of future abuse. Id. at ___, 135 S. Ct. at 

2181, 192 L. Ed. 2d at 315–16. There is no evidence to suggest 

Dr. Harre’s questions “were primarily aimed at identifying and ending the 

threat” to A.W. in order to protect her from immediate harm. Id. at ___, 

135 S. Ct. at 2181, 192 L. Ed. 2d at 316. 

Additionally, the conversation between Dr. Harre and A.W. was far 

from spontaneous or informal. Cf. id. A.W. made the statements at 

issue in response to questions posed to her by an unfamiliar person in 

an unfamiliar setting. Dr. Harre is not a teacher or primary care 

physician who had a preexisting relationship with A.W. Dr. Harre’s office 

is not a preschool classroom where A.W. was accustomed to spending 

time. Though the conversation with Dr. Harre was unlike a formal 

interrogation in that a law enforcement officer was not present, it was not 

entirely informal. For example, Dr. Harre discussed the concept of 

truthfulness with A.W. near the start of their conversation. 

As the majority opinion points out, A.W. was very young when she 

made the statements at issue in this case, and she made them outside 

the presence of the police or the prosecutors charged with prosecuting 

the case. I also agree with the majority opinion’s conclusion A.W. 

certainly did not make the statements with the intent that they be used 

to prosecute J.C. However, nothing in Clark suggests these facts are 

adequate to decide this case. On the contrary, Clark acknowledges the 

primary-purpose test is a necessary component of the analysis when a 

defendant raises a confrontation challenge to determine whether the 

statement at issue was testimonial or not. Id. at ___, 135 S. Ct. at 2180–

81, 192 L. Ed. 2d at 315.
35

In contrast to Clark, the facts of this case suggest the primary 

purpose of the conversation between Dr. Harre and A.W. was to obtain 

statements from A.W. that the county attorney could introduce in court. 

The primary purpose of Dr. Harre’s conversation with A.W. was to gather 

evidence to be supplied to the very individual tasked with prosecuting 

J.C. The evidence indicates Dr. Harre understood herself to be 

cooperating with law enforcement in their investigative efforts. Law 

enforcement regularly relied upon her office as a tool in those efforts as 

part of its standard operating procedure. Had the police department 

anticipated the information Dr. Harre obtained would not be made 

available for use in its investigation, surely at least one of the officers 

within the department would have interviewed A.W. Though A.W. does 

not speak clearly, she was able to communicate effectively to Dr. Harre 

and the forensic investigator. There is no reason to believe she would 

have been unable to communicate during an interview with a police 

officer, or before the court in a juvenile proceeding, if appropriate 

safeguards were in place.

Accordingly, because the totality of the circumstances indicate the 

conversation during which A.W. made the statements contained in 

Dr. Harre’s report and testimony was intended to generate a substitute 

for trial testimony, I conclude those statements were testimonial. Police 

officers cannot enlist third parties to act on their behalf in order to gather 

statements to be used in court and later claim the statements were 

nontestimonial. 

For the same reason, I conclude the statements contained in 

Michelle Mattox’s report and testimony were testimonial. As the majority 

opinion acknowledges, Mattox conducted a forensic interview of A.W. 

after police “made a referral call, and law enforcement was present when 
36

it occurred.” Additionally, Mattox recorded the interview and provided a 

copy of the recording to the county attorney’s office. Mattox also sent a 

copy of the report she generated after the interview to both the assistant 

county attorney in charge of prosecuting J.C. and the detective assigned 

to investigate him. In short, the evidence indicates Mattox intentionally 

played an investigative role in the law enforcement investigation into the 

alleged delinquent act. 

For these reasons, I would reverse the finding of delinquency and 

remand the case for a new hearing.

Hecht and Appel, JJ., join this dissent.