1The January 22, 2008 order entered by our court vacated the September 7, 2007, opinion

filed in this cause, granted petitioner-appellee The People of the State of Illinois' petition for

rehearing and remanded the cause to the circuit court for an evidentiary hearing on the limited

issue of the equitable doctrine of forfeiture by wrongdoing, in compliance with a previous

mandate of the Illinois Supreme Court (In re T.T., 224 Ill. 2d 575 (2007)). 

FIFTH DIVISION

July 25, 2008

No. 1-03-0551

In re T.T., a Minor ) Appeal from the

 (The People of the State of Illinois, ) Circuit Court of

) Cook County.

Petitioner-Appellee, )

)

v. ) No. 01 JD 2958

)

T.T., ) Honorable

) Rodney H. Brooks,

Respondent-Appellant). ) Judge Presiding.

PRESIDING JUSTICE FITZGERALD SMITH delivered the modified opinion of the court:

Following a bench trial, respondent T.T. was adjudicated delinquent of two counts of

aggravated criminal sexual assault and sentenced to five years of probation. On appeal, respondent

contends the trial court erred in finding the complaining witness, G.F., unavailable to testify at trial so

as to warrant the preclusion of cross-examination. Furthermore, respondent, citing Crawford v.

Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), argues that G.F.'s statements to

a police detective, a Department of Children and Family Services (DCFS) investigator, and a

physician were testimonial in nature, and that the admission of those statements pursuant to statutory

hearsay exceptions in the absence of an opportunity to cross-examine G.F. violated respondent's right

to confrontation.

We note here that the Illinois Supreme Court has entered a supervisory order (In re T.T., No.

106081 (May 30, 2008)) directing this court to vacate our previous order of January 22, 20081 in this

matter and reinstate our September 7, 2007 opinion. In compliance with the Illinois Supreme Court's

supervisory order, we reinstate our September 7, 2007 opinion herein, but modify it to provide for a

remand to the circuit court for a hearing on the State's claim regarding the doctrine of forfeiture by

wrongdoing.
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As we concluded previously, we hold, for the following reasons, the trial court properly

determined that G.F. was unavailable. We also find that G.F.'s statements to the police detective and

DCFS investigator were testimonial, and her statement to the physician identifying respondent as the

perpetrator was testimonial. Because G.F. was not cross-examined at trial, her testimonial statements

were not admissible where respondent had no prior opportunity for cross-examination. Because the

trial court considered testimonial evidence in the absence of a prior opportunity for crossexamination, we reverse the judgment of the trial court and remand the cause for further proceedings

not inconsistent with this opinion.

BACKGROUND

On May 24, 2001, the State filed a petition for adjudication of wardship of respondent,

alleging he was delinquent by reason of committing two offenses of aggravated criminal sexual

assault. Prior to trial, the State filed a motion under section 115-10 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/115-10 (West 2000)) to admit G.F.'s out-of-court statements through

her mother P.F., DCFS investigator Gloria Lewis, and Chicago police detective Patricia Dwyer. 

Section 115-10 provides, in relevant part, that in a prosecution for a sexual act perpetrated against a

child under the age of 13, the testimony of the child's out-of-court statements describing any

complaint of such an act or matter or detail pertaining to any act which is an element of the charged

offense is admissible as an exception to the hearsay rule. 725 ILCS 5/115-10(a) (West 2000). Such

testimony is only admitted if the court finds in a pretrial hearing that the time, content and

circumstances of the statement provide sufficient safeguards of reliability and the child either testifies

at the trial or is "unavailable as a witness" and there is corroborative evidence of the act which is the

subject of the statement. 725 ILCS 5/115-10(b) (West 2000).

At the section 115-10 motion hearing, P.F., Lewis and Detective Dwyer testified generally

consistently concerning G.F.'s statements about the events in December 2000, when she stayed for 21⁄2

days at the home of Denise T., her babysitter and respondent's mother. G.F. was seven years old at the

time. Another girl, respondent's niece A.W., age six, was also there. During G.F.'s stay, respondent,

then age 14, allegedly penetrated G.F.'s vagina and anus with his penis.
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Specifically, P.F. testified she left G.F. at Denise T.'s home for babysitting on Monday

afternoon, December 18, 2000. G.F. had known respondent for four years and called him "Pooh." 

G.F.'s sister picked G.F. up on Wednesday and returned her home about 11 a.m. As soon as G.F.

entered the home, she told P.F., without prompting or questioning, that "Pooh" had "juiced" her and

put his "ding-a-ling" in her "bootie" and her "fannie." Based on G.F.'s prior use of those terms, P.F.

understood her to mean that respondent had sexual intercourse with her and put his penis in her

buttocks and vagina. G.F. told P.F. that respondent did this to her on Monday and again on Tuesday,

that it hurt at the time but not anymore, and that he said he would kill her if she told. G.F. said that

respondent also "did" A.W. and that when G.F. told Denise T. and respondent's sister about the

incidents, they bathed her. Then, P.F. asked G.F. if respondent put his "ding-a-ling" in her mouth, and

G.F. answered no. P.F. did not contact the police or take G.F. for medical treatment. G.F. was not

examined by a physician until May 7, 2001, after DCFS contacted P.F. DCFS investigator Lewis

went to P.F.'s home on May 4, 2001, and spoke to P.F. and G.F.

DCFS investigator Lewis testified that she worked for the child protection unit for several

years. Lewis estimated that 95% of her cases involved investigations of allegations of sexual abuse,

and she had investigated hundreds of such cases. In March 2001, she received G.F.'s case based on a

hotline report indicating G.F. told the reporter that her vagina had been penetrated with a finger. On

March 8, 2001, Lewis spoke by telephone with the reporter and learned G.F. told the reporter that

respondent put his finger in G.F.'s vagina. Lewis attempted to contact G.F. within 24 hours to assess

her safety, but was not able to locate her. On March 12, 2001, Lewis was interviewed by a Ms. Bates,

to whom Lewis conveyed the reporter's March 8 statement. Lewis went to P.F. and G.F.'s home

several times and left letters, but never made contact with either of them until she drove to their home

on May 4, 2001, and saw them leaving the residence. Lewis interviewed G.F. in Lewis's car while

P.F. sat in the backseat. Lewis introduced herself to G.F. and asked her several general questions

regarding her age, school and the color of clothing to determine how credible she was in her

statements. Lewis determined that G.F. knew the difference between telling the truth and a lie. G.F.

was talkative, quickly volunteered information, and gave detailed accounts.
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Lewis testified that G.F. said she was at Denise T.'s house and playing with A.W. During the

daytime, Denise T. went to the store and left G.F. and A.W. in the care of respondent's older sister,

but she stayed in her bedroom with the door closed. Respondent entered the living room and told G.F.

and A.W. that they were going to play wrestling. Respondent took G.F. into Denise T.'s bedroom and

removed G.F.'s one-piece pajama outfit. When respondent pulled her panty down, G.F. tried to pull it

back up. Respondent wore pajama bottoms and pulled them down to his thighs. G.F. told Lewis

"Pooh" stuck his "thing" in her "fannie" and in her, pointing to indicate her vaginal area. G.F. said a

"thing" was a "ding-a-ling." Respondent also took G.F. into the bathroom and stuck his "thing" in her

"bootie." On another occasion, respondent had G.F. and A.W. in Denise T.'s bedroom. Respondent

had A.W. in a closet and put G.F. on the bed and kissed her on both cheeks. Then, respondent put

G.F. in the closet and A.W. on the bed. When G.F. tried to peek to see what respondent was doing to

A.W., he threw a cover on her head so she could not see. Respondent told G.F. that if she told

anybody, he would kill them, but G.F. told Denise T. and respondent's sister and told her mother as

soon as she saw her. Lewis testified that P.F. did not participate in anyway when G.F. made her

statement to Lewis. Moreover, Lewis never told G.F. what to say and never had to prompt her.

Detective Dwyer testified that she was investigating the sex crime involving respondent and

met G.F. and P.F. at headquarters on May 23, 2001. Detectives Dwyer and Collins interviewed G.F.

while P.F. sat right outside the open door of the conference room. The detectives told G.F. that they

were police officers and were assigned to investigate sex crime cases. They asked G.F. general

questions and determined she was credible, articulate and knew why she was there. The detectives

asked G.F. what happened at Denise T.'s house, and G.F. said that respondent brought her into Denise

T.'s bedroom and pulled her pants and panty down. When G.F. pulled them back up, respondent

pulled them down again, put G.F. on the bed, and put his "thing" in her "privates." G.F. said a "thing"

is what boys pee from and "privates" are what girls pee from, and she pointed to indicate her vaginal

area. G.F. said that respondent then brought her into the bathroom and put his "thing" in her "bootie"

and in her "privates." G.F. pointed to her behind to indicate what a "bootie" was. When the

detectives asked how G.F. felt after that, she responded that it hurt her. G.F. said the next day
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respondent did it to her again in his bedroom and caused pain, and that A.W. was there in the closet. 

G.F. said respondent threatened to kill her if she told anybody, but she told Denise T. and respondent's

sister. Dwyer testified that the detectives asked G.F. specific questions and she answered them very

matter-of-factly.

At the conclusion of the section 115-10 motion hearing, the State informed the court that it

anticipated that G.F. would testify at trial. The trial court held that G.F.'s statements to P.F., Lewis,

and Detective Dwyer would be admissible at trial because the time, content and circumstances of the

statements provided sufficient safeguards of reliability.

At the trial in August 2002, Dr. Michelle Lorand testified as an expert in the area of pediatric

medicine and child abuse and neglect. Dr. Lorand was an attending pediatrician and the chair, since

1992, of the division of child protective services in the pediatric department of Cook County Hospital. 

Also, she was currently the medical director of the medical clinic at the Chicago Children's Advocacy

Center, which was run by Cook County. Dr. Lorand met G.F., who was accompanied by P.F., on May

7, 2001, in the emergency room. They had been referred by DCFS for a medical evaluation of alleged

sexual abuse. Dr. Lorand introduced herself and explained she would conduct a physical exam of

G.F., including everything that is generally incorporated into a pediatric physical exam and a careful

examination of the genital and rectal areas. Dr. Lorand spoke first to P.F. alone, then spoke to G.F.

alone to hear in her own words what, if anything, happened to her, and then examined G.F. with P.F.

in the room.

When Dr. Lorand asked G.F. if she knew why she was at the hospital, G.F. said to be checked. 

Dr. Lorand asked if anybody had ever hurt her in her private parts or in the butt or buttocks area, and

G.F. said yes. Over the defense's objection, Dr. Lorand testified that when she asked G.F. who hurt

her, she responded "Pooh" and explained that he was the son of her mother's friend. Dr. Lorand asked

what happened, and G.F. responded that he pulled her pants down to her knees and stuck his "thing"

in front and in back, pointing to indicate her genital and rectal areas. G.F. said he put baby oil on his

"thing," that it happened one time, that she told her mother when it happened, and she had not seen

the person since then. G.F. said it hurt worse when he stuck it in back than in front. G.F. and her
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mother reported that G.F. never complained of any hard stool or bowel movement problems, and there

was no bleeding or discharge from her vagina or anus.

Dr. Lorand then performed the physical exam. G.F.'s vaginal exam was normal, but her rectal

exam revealed two scars, which indicated some tearing or laceration highly suspicious for penetratingtype trauma. Dr. Lorand explained that the vaginal area healed more quickly than the rectum, and

some children healed completely from penetrating injuries to the vagina. Based on G.F.'s statement to

Dr. Lorand and the physical exam, Dr. Lorand concluded that the injuries were older than two weeks

and that G.F. was sexually abused.

When trial resumed in November 2002, the parties stipulated to the testimony of P.F., Lewis,

and Detective Dwyer from the section 115-10 motion hearing. G.F. testified that she was nine years

old. On direct examination, she answered general questions about her address, school, and family

members and demonstrated she knew the difference between the truth and a lie. G.F. identified

respondent in court and explained she had known him for some time as the son of her mother's friend,

Denise T. In December 2000, G.F.'s mother took her by bus to Denise T.'s house. Although G.F. was

supposed to stay there only one day, she stayed three days, sleeping in the living room with A.W.

G.F. testified that when she, A.W. and respondent were play-wrestling in Denise T.'s bedroom,

respondent tried to unbutton G.F.'s pants. G.F. remembered how respondent did that, but then said

"No," when the prosecutor asked her to tell the judge how respondent did that. When the prosecutor

asked G.F. what happened next, G.F. did not respond. The prosecutor told G.F. that it was "okay to

tell the judge exactly what happened," but G.F. said, "Nothing."

G.F. testified that the next day she and A.W. were sleeping in the living room, respondent was

behind her but did "Nothing," and then the three went into Denise T.'s bedroom. G.F. did not respond

when asked what happened next, but said "Yes," when asked if she wanted to take a break. The judge

admonished the parties not to speak to G.F. regarding the case, but stated that G.F.'s mother could

comfort her during the break. Before resuming, the prosecutor relayed G.F.'s request to testify from

the witness stand, explaining G.F. "prefers to be behind here as long as she can be heard and seen." 

The trial court granted the request.
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G.F. testified that respondent unbuttoned her pajama suit in Denise T.'s bedroom, but G.F.

would not respond when asked what happened next. Several times during direct questioning, the

court sustained defense counsel's objections to the prosecutor's leading questions or comments to G.F.

that it was "okay to talk about it," and to "be honest." G.F. testified that something happened after

respondent unbuttoned her pajama suit, but she would not respond when asked what happened next. 

During a sidebar, the prosecutor argued that he was entitled to lead the witness, but the trial court,

acknowledging the sensitive nature of the proceedings, stated that G.F. must present the evidence

without being led. Upon resumption of questioning, the following occurred:

"MR. HARVATH [Assistant State's Attorney]: Did anything else happen in Denise's

room?

G.F.: Yes.

MR. HARVATH: Can you tell the judge what happened? It's okay.

MS. DAGO [defense counsel]: Judge, again I would object to comments by counsel.

THE COURT: Sustain.

MR. HARVATH: Can you tell the judge what happened? Can you tell the judge yes or

no? Judge, I'm going to ask this witness be deemed and declared unavailable at this time." 

Defense counsel argued G.F. was responsive, said that nothing happened, and "her demeanor

was one of kind of giggling at times or smiling." The trial court found that G.F. was unavailable

where she "froze," noting she would not say anything after she testified that respondent unbuttoned

her pajama suit. Defense counsel then sought clarification that G.F.'s responses "that nothing

happened" would stand in the record. Initially, the trial court responded that none of G.F.'s testimony

would be considered, but when the State argued there was no basis to strike G.F.'s testimony where it

indicated she was competent but became unavailable to discuss the assault allegations, the court ruled

that "it will stand." Defense counsel did not object or move to strike G.F.'s testimony.

The State rested, and the defense moved for a directed finding, arguing that G.F. said nothing

happened and her testimony was inconsistent. The trial court denied the motion, stating the out-ofcourt statements were reliable and corroborated by Dr. Lorand's testimony. Thereafter, defense
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counsel stated she wanted to call G.F. to lay a foundation for Denise T.'s testimony that G.F. recanted

her allegations four months after the alleged assault. The trial court reiterated its ruling that G.F. was

not available.

Denise T. testified G.F. never complained in December 2000 that respondent touched her. 

After December 2000, Denise T. and P.F. remained friends, played cards, and saw each other almost

daily. Denise T. spoke with G.F. and P.F. in a parking lot one evening in April 2001 and asked G.F. if

respondent touched her. According to Denise T., G.F. replied "no," and grinned, laughed and put her

hand over her mouth. Denise T. testified that P.F. heard this conversation but made no comment.

In rebuttal, P.F. acknowledged having a conversation in April 2001 with Denise T. but

testified that G.F. was not present. Moreover, P.F. never heard G.F. tell Denise T. that the incident

with respondent did not happen. P.F. and Denise T. lived in the same neighborhood and sometimes

saw each other or went shopping, but they did not see each other for several months because of the

case.

In closing argument, defense counsel argued G.F.'s testimony during direct examination that

"nothing happened" contradicted her out-of-court statements alleging respondent sexually assaulted

her. The trial court found respondent delinquent, and respondent appealed, challenging only the trial

court's determination that G.F. was unavailable. While this appeal was pending, the Supreme Court in

Crawford departed from its prior confrontation clause analysis and announced a framework for

evaluating confrontation claims that differed significantly from the analysis that was applicable at the

time of respondent's trial. The parties submitted supplemental briefs on the effect of Crawford on the

admissibility of G.F.'s out-of-court statements.

ANALYSIS

I. G.F.'s Unavailability

Respondent first contends the trial court erroneously determined that G.F. was unavailable to

testify after she made allegedly exculpatory statements during direct examination, and then erred by

denying respondent an opportunity to cross-examine her. A trial court's rulings on evidentiary matters

will not be reversed absent a clear abuse discretion, whereas evidentiary rulings involving questions
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of statutory interpretation or other questions of law are reviewed de novo. People v. Hall, 195 Ill. 2d

1, 20-21 (2000).

Our supreme court found unavailability to be a narrow concept, subject to a rigorous standard. 

People v. Johnson, 118 Ill. 2d 501, 509 (1987). Child sexual abuse cases present special problems

where the child victim may be unable to testify adequately due to fear, guilt or intimidation. Child

witnesses are considered unavailable if it is demonstrated to the trial court that the children were

unwilling or unable to testify because of fear, unable to communicate in the courtroom setting, or

declared incompetent because they were incapable of expressing themselves concerning the matter so

as to be understood. People v. Coleman, 205 Ill. App. 3d 567, 583 (1990); People v. Rocha, 191 Ill.

App. 3d 529, 539 (1989). The trial court properly applied this unavailability definition in the instant

case considering G.F.'s tender years and the circumstances.

G.F. was either unable or unwilling to testify due to fear or an inability to communicate in the

courtroom setting. The fact she testified for a short time on direct examination prior to stopping does

not change that conclusion. In Coleman, the six-year-old witness was properly declared unavailable

after she testified that the defendant had given her a "bad touch" more than once but then froze up and

would answer no more questions. Coleman, 205 Ill. App. 3d at 573. The trial court attempted to

speak to the child during a recess, but during the court's questioning and on cross-examination, the

child responded to general questions by either shaking or nodding her head and would not respond to

questions concerning the sexual abuse. Coleman, 205 Ill. App. 3d at 573. We reject respondent's

argument that Coleman should be read narrowly to hold that, before a child witness can be found

unavailable, the defense must have an opportunity to cross-examine her or the trial court must

personally question her. The Coleman court specifically noted that "[o]nce a child witness is unable

to proceed with his or her testimony, whether that point occurred prior to taking the stand or

subsequently, he or she is properly considered unavailable." Coleman, 205 Ill. App. 3d at 583.

Here, G.F. responded to general questions about her family and school, demonstrated she

knew the difference between the truth and a lie, identified respondent in court, and explained how she

came to be at his home on the dates of the alleged assaults. However, as soon as the questions
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became more specific about the assault, G.F. stopped answering questions. G.F. stated that

respondent tried to unbutton her pants and she remembered how he did that, but then she retreated

from that answer and said she did not remember. G.F. twice said something unusual happened next,

but retreated and responded, "Nothing," when asked to tell the judge exactly what happened. 

Concerning the second day at respondent's house, G.F. said something happened, did not respond

when asked what happened, then said respondent was behind her, but said, "Nothing," when asked,

"What did he do?" G.F. stopped answering questions and was allowed to take a recess, have her

mother comfort her, and testify from behind the witness stand when direct examination resumed. G.F.

testified that respondent unbuttoned her pajama suit but would not respond when asked what

happened next. Like the child in Coleman, G.F. froze when asked to recount the alleged incidents of

sexual assault.

Despite the best efforts of the prosecutor, G.F. ceased testifying. The prosecutor repeated and

rephrased the questions, but G.F. did not answer. The trial court was mindful of the sensitive nature

of the proceedings and careful to afford G.F. a fair opportunity to testify without being unduly led. 

The trial court granted her request for a recess, allowed her mother to comfort her, and acquiesced

when G.F. asked to testify from behind the witness stand instead of the center of the room. In

addition, the trial court conducted a sidebar with counsel to discuss G.F.'s silence and the State's

request for leeway in questioning her. The trial judge was in the best position to observe G.F.'s

demeanor and note the duration of her pauses or silence in response to the prosecutor's questions. The

decision whether G.F. froze involved fact-finding and the trial court's exercise of discretion based on

the specific circumstances of the case. Thus, the trial court's evidentiary ruling is accorded deference

on review. See Hall, 195 Ill. 2d at 21. We find that G.F. was properly considered unavailable.

Because the record supports the trial court's determination that G.F. was unavailable,

respondent's argument that he was prejudiced by the preclusion of her cross-examination after her

limited direct testimony lacks merit. On appeal, the defense is adamant that "respondent does not

assign any error to the trial court's decision to allow G.F.'s direct testimony into evidence." In

addition, the record is clear that both the State and defense counsel wanted the trial court to allow
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G.F.'s limited testimony on direct examination to stand. Defense counsel did not move to strike G.F.'s

testimony but, rather, utilized it. Specifically, defense counsel argued in both the motion for a

directed finding and closing argument that G.F.'s "nothing" responses meant respondent did nothing to

her other than unbutton her pants. The defense cannot change that strategy on appeal to claim

respondent was prejudiced by G.F.'s testimony.

II. Confrontation Clause Violations

Respondent next challenges the admission, pursuant to statutory hearsay exceptions, of G.F.'s

statements to Detective Dwyer, DCFS investigator Lewis, and Dr. Lorand. Respondent, citing the

new rule announced in Crawford, claims those statements constituted testimonial evidence and

violated his right to confrontation because G.F. was not subject to cross-examination at trial and there

was no prior opportunity to cross-examine her. We reject the State's argument that respondent waived

this issue. Judicial opinions announcing new constitutional rules applicable to criminal cases are

retroactive to all cases pending on direct review at the time the new constitutional rule is declared. 

People v. Ford, 198 Ill. 2d 68, 73 (2001). Moreover, a party may challenge the constitutionality of a

statute at any time. People v. Wagener, 196 Ill. 2d 269, 279 (2001). Furthermore, the record

establishes the defense stipulated at trial to the admission of the testimony from the section 115-10

motion hearing to avoid unnecessary repetition.

In Crawford, 541 U.S. at 51-54, 158 L. Ed. 2d at 192-94, 124 S. Ct. at 1364-66, the Court

noted two principles central to the meaning of the confrontation clause's guarantee that "[i]n all

criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses

against him" (U.S. Const., amend. VI), namely: (1) the confrontation clause was directed against the

civil-law mode of criminal procedure, particularly the use of ex parte examinations as evidence

against the accused, and (2) the Framers would not have allowed the admission of the testimonial

statements of a witness who did not appear at trial unless he was unavailable to testify and the

defendant had a prior opportunity for cross-examination. The Court asserted that its case law had

been consistent with these principles but acknowledged its rationales had not, as demonstrated in

Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980), which
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conditioned the admissibility of hearsay evidence, regardless of its testimonial nature, on whether it

demonstrated adequate indicia of reliability. Crawford, 541 U.S. at 55-59, 158 L. Ed. 2d at 196-97,

124 S. Ct. at 1367-69. Where testimonial statements are concerned, the Court renounced the

unpredictable, amorphous, subjective Roberts test, stating that courts cannot replace the confrontation

clause's prescribed procedure of cross-examination with a procedure of their own devising. Crawford,

541 U.S. at 61-62, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370. The Court, however, reiterated that the

confrontation clause places no constraints on the use of the declarant's prior testimonial statements

when he appears for cross-examination at trial and is present to defend or explain the statements. 

Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 197 n.9, 124 S. Ct. at 1369 n.9.

The Court did not spell out a comprehensive definition of testimonial, but concluded that

"[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and to police interrogations." Crawford, 541 U.S. at 68, 158

L. Ed. 2d at 203, 124 S. Ct. at 1374. The Court noted that various formulations of the core class of

testimonial statements exist. Specifically, petitioner's brief suggested that testimonial meant " 'ex

parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial

examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial

statements that declarants would reasonably expect to be used prosecutorially.' " Crawford, 541 U.S.

at 51, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364 (quoting Brief for Petitioner at 23). The amici curiae

brief of the National Association of Criminal Defense Lawyers (NACDL) suggested the following

definition: " 'statements that were made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later trial.' " Crawford, 541

U.S. at 52, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364 (quoting Brief for NACDL et al. as Amici Curiae

at 3). However, another formulation contained in an earlier Court concurring opinion was limited to 

" 'extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits,

depositions, prior testimony or confessions.' " Crawford, 541 U.S. at 51-52, 158 L. Ed. 2d at 193, 124

S. Ct. at 1364 (quoting White v. Illinois, 502 U.S. 346, 365, 116 L. Ed. 2d 848, 865, 112 S. Ct. 736,

747 (1992) (Thomas, J., concurring in part and concurring in judgment, joined by Scalia, J.)). The
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Crawford Court, without commenting on the merits of any of the above formulations, noted that they

"share[d] a common nucleus and then define[d] the Clause's coverage at various levels of abstraction

around it." Crawford, 541 U.S. at 52, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364.

We note, however, that in White, Justice Thomas found problematic the approach of applying

the confrontation clause to testimony made in contemplation of legal proceedings. Justice Thomas

cautioned that such an approach might prove difficult to apply and would entangle courts in a

"multitude of difficulties" in attempting to draw a line between statements made in contemplation of

legal proceedings and those not so made where it was not clear whether the declarant or the listener

must be contemplating legal proceedings. White, 502 U.S. at 364, 116 L. Ed. 2d at 864-65, 112 S. Ct.

at 747 (Thomas, J., concurring in part and concurring in judgment, joined by Scalia, J.). Justice

Thomas urged that the confrontation clause should not be construed to extend beyond the historical

evil to which it was directed, noting that not even statements made to the police or government

officials could be deemed automatically subject to the right to confrontation, like the victim who

blurts out an accusation to a passing police officer or the unsuspecting social worker who is told of

possible child abuse. White, 502 U.S. at 364-65, 116 L. Ed. 2d at 864-65, 112 S. Ct. at 747 (Thomas,

J., concurring in part and concurring in judgment, joined by Scalia, J.).

Along the same vein, the Crawford Court rejected the notion that ex parte testimony could be

admissible against a criminal defendant if it was elicited by government officers neutral to the

declarant. Crawford, 541 U.S. at 66, 158 L. Ed. 2d at 202, 124 S. Ct. at 1373. The Court also

rejected an analysis that assessed the testimonial nature of the declarant's statement based on her

perception of her situation, finding that such a determination could only be revealed by crossexamination. Crawford, 541 U.S. at 66, 158 L. Ed. 2d at 202, 124 S. Ct. at 1373. Crawford indicates

that governmental involvement in some fashion in the creation of a formal statement is necessary to

render the statement testimonial in nature. When other factors are also present (the statement

substituted for the declarant's testimony at trial, was produced ex parte, and was accusatory when

made), the confrontation clause's guarantee of cross-examination is triggered. Crawford, 541 U.S. at

56 n.7, 158 L. Ed. 2d at 196 n.7, 124 S. Ct. at 1367 n.7 ("Involvement of government officers in the
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production of testimony with an eye toward trial presents unique potential for prosecutorial abuse

***").

We find that G.F.'s statement to Detective Dwyer was testimonial. Although some types of

hearsay statements, like an offhand, overheard remark or a casual remark to an acquaintance, are not

the sort of statements at which the confrontation clause was directed, "[s]tatements taken by police

officers in the course of interrogations are *** testimonial under even a narrow standard." Crawford,

541 U.S. at 52, 158 L. Ed. 2d at 193, 124 S. Ct. at 1364. According to Crawford, interrogation is

meant in a colloquial rather than a technical, legal sense, and the police officer's function is essentially

investigative and prosecutorial. Crawford, 541 U.S. at 53, 158 L. Ed. 2d at 194, 124 S. Ct. at 1365. 

Thus, the witness's recorded statement knowingly given in response to structured police questioning

in Crawford qualified as testimonial under any conceivable definition. Crawford, 541 U.S. at 53 n.4,

158 L. Ed. 2d at 194 n.4, 124 S. Ct. at 1365 n.4. 

Detective Dwyer testified that she and her partner were investigating the sex crime involving

respondent and interviewed G.F. at headquarters six months after the alleged assault. The detectives

told G.F. they were police officers assigned to investigate sex crimes. Detective Dwyer testified that

G.F. "knew why she was there" and was asked specific, rather than open-ended, questions during the

interview. The day after the detectives interviewed G.F., the State filed the delinquency petition

against respondent. G.F.'s accusatory statements made to the police during the interview and naming

respondent as the perpetrator clearly implicate the confrontation clause's core concerns. Respondent

had no opportunity to cross-examine G.F. regarding the statements she made to the detectives. Based

on the trial court's ruling that G.F. was unavailable, she did not complete direct examination at trial

and was not subject to any cross-examination. Accordingly, introduction of her statements to the

detectives violated respondent's right to confront the witnesses against him.

We also find that G.F.'s statements to DCFS investigator Lewis were testimonial. Given that

child abuse has both criminal and social welfare implications, DCFS and the State's Attorney may

naturally share some involvement in a particular case. We recognize that our supreme court, in

addressing whether responsibility for destruction of evidence by DCFS could be imputed to the State's
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Attorney, rejected the notion that child protective service investigators are a prosecutorial arm of the

State simply by virtue of their mandate to investigate reports of suspected child abuse and neglect. In

re C.J., 166 Ill. 2d 264, 269 (1995). However, where DCFS works at the behest of and in tandem with

the State's Attorney with the intent and purpose of assisting in the prosecutorial effort, DCFS

functions as an agent of the prosecution. In re C.J., 166 Ill. 2d at 270. To determine, for purposes of a

confrontation clause analysis, the extent to which Lewis was working to assist the prosecutorial effort,

we review Lewis's testimony in the context of the mechanics of the DCFS investigatory process.

Certain statutory provisions and regulations indicate that DCFS investigators may work in

conjunction with law enforcement in assisting the prosecutorial effort. Specifically, DCFS

immediately refers reports of alleged child sexual abuse to the police and State's Attorney for

consideration of a criminal investigation or other action. 325 ILCS 5/7 (West 2000); 89 Ill. Adm.

Code §300.70 (2000). DCFS may delegate the investigation of the report to the police or State's

Attorney when they are concurrently conducting a criminal investigation of the same incidents and

allegations. 325 ILCS 5/7.3 (West 2000); 89 Ill. Adm. Code §300.80 (2000). In conducting a formal

investigation, the DCFS investigator will, after seeing to the safety of the child, interview the people

residing in the child's home, the alleged perpetrator and other people who may be helpful to the

investigation. 325 ILCS 5/7.4(b)(3) (West 2000). Once the investigator has gathered the important

facts from the people involved, a decision or finding must be made by the investigator pending review

by a supervisor. 325 ILCS 5/7.12 (West 2000). Where it is not possible to complete an investigation

within the time prescribed, DCFS may, for good cause shown, extend the period for making a finding. 

325 ILCS 5/7.12 (West 2000). Good cause may include a request from the police or State's Attorney

to delay making a determination due to a pending criminal investigation, or because medical reports

necessary for a determination are still pending. 89 Ill. Adm. Code §300.110(i)(3)(D) (2000).

Here, Lewis was not able to see G.F. within 24 hours of the March hotline report, but talked to

the reporter and learned that respondent allegedly penetrated G.F.'s vagina with his finger. Lewis

apparently determined that the report was made in good faith and began a formal investigation. After

several unsuccessful attempts to contact G.F. and her mother, Lewis eventually interviewed G.F. in
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May during an unscheduled visit to their home. Lewis introduced herself to G.F., assessed G.F.'s

credibility and then interviewed her utilizing open-ended questions. During this interview, G.F.

accused respondent of the above-mentioned acts of sexual assault. The record does not indicate that

G.F. was at imminent risk or taken into protective custody, but she was referred to the hospital

emergency room for diagnosis of and treatment for sexual assault. In the context of a confrontation

clause analysis, where the focus is on whether the declarant is bearing witness against a criminal

defendant when making a formal statement to a government officer with an eye toward prosecution,

G.F.'s statements to Lewis were testimonial. See People v. Sisavath, 118 Cal. App. 4th 1396, 13 Cal.

Rptr. 3d 753 (2004) (statements of child victim to investigating officer and to an interviewer at a

facility specially designed to interview children who are suspected victims of child abuse were

testimonial); Snowden v. State, 156 Md. App. 139, 846 A. 2d 36 (2004) (out-of-court statements

describing sexual abuse made by children during an interview with a social services investigator were

testimonial).

The State argues that certain factors--Lewis's impromptu interview of G.F., the neutral

location, the open-ended questions, the absence of any police officer or State's Attorney, the

occurrence of the interview prior to the filing of the delinquency petition, and the declarant's age and

state of mind--indicate that G.F. was not making a formal, official statement. Those factors, however,

were more the result of P.F.'s reluctance to cooperate with DCFS's requests to interview G.F. and do

nothing to alter the testimonial nature of G.F.'s statements to Lewis. Moreover, a court's attempt to

fashion such factors into some type of litmus test for testimonial evidence would undermine the

confrontation clause's protections. Vague standards are manipulable, and the neutral motives of the

government official toward the declarant are irrelevant. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at

202, 124 S. Ct. at 1373.

Section 115-10 addresses difficulties inherent in child abuse prosecutions, such as the

susceptibility of the child witness due to normal developmental limitations, to forget details when

there is a substantial delay between the event and the request to recall it at trial. Section 115-10

allows the testimony of those who heard the child's statements describing any complaint, matter or
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detail pertaining to the criminal offense. If the child is not available for cross-examination and the

defense has not secured that absence, then the State must lose the advantage of admitting the hearsay

that is testimonial. We assign no ill motives to the State, but if the State could simply use the

surrogate testimony of social workers provided that certain formalities--like a scheduled interview at a

government office in a question-and-answer format--were absent, then prosecutors would have less

motivation to acclimate the child witness to the courtroom setting, prepare them for the trial and make

them available for the rigors and trauma of cross-examination.

We do not hold that all statements made to a social worker are per se testimonial under

Crawford. We think it possible that a scenario could arise in which a report to the DCFS hotline (see

People v. Moscat, 3 Misc. 3d 739, 777 N.Y.S. 2d 875 (2004) (call to 911 by domestic assault

complainant was not testimonial)), or statements of sexual abuse overheard by a social worker (see

People v. Bowen, 183 Ill. 2d 103, 107 (1998)), would be admissible as nontestimonial hearsay.

Regarding G.F.'s hearsay statements to Dr. Lorand, we find that G.F.'s statements describing

the cause of symptoms or pain or the general character of the assault were not testimonial in nature. 

However, G.F.'s statement identifying respondent as the perpetrator was testimonial, and the

admission of Dr. Lorand's testimony regarding G.F.'s statement of identification violated respondent's

right to confrontation where G.F. was not available at trial for cross-examination.

Dr. Lorand was a member of a child abuse protection unit at the hospital and had previously

testified as an expert witness in child abuse cases. DCFS referred G.F. to Dr. Lorand for diagnosis

and evaluation of sexual abuse six months after the alleged assault. At trial, Dr. Lorand recounted her

physical findings in addition to what G.F. told her about where on her body she had been hurt, the

offender's use of a lubricant, the pain, the absence of any blood or discharge, and the identity of the

offender.

We do not find controlling the fact that G.F.'s medical exam was the result of a referral from

DCFS. The record established that G.F.'s mother failed to take her for any medical treatment or

evaluation after the alleged assault. Moreover, government officials like police officers commonly

take sexual assault victims to the hospital for treatment and evaluation. We also find unpersuasive
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respondent's assertion that the relationship between DCFS and Dr. Lorand at the time of the

examination indicated that she constructively acted as the government's agent in interrogating G.F. 

Dr. Lorand's exam was for a diagnostic purpose, and G.F.'s statement was the by-product of

substantive medical activity. Although Dr. Lorand may have been part of a child abuse trauma team,

she was not charged with facilitating the prosecution of the case against respondent. As a medical

expert with a professional interest in a patient's treatment, Dr. Lorand's primary investment in

cooperating with law enforcement agencies was in facilitating the least traumatic method of diagnosis

and treatment for the alleged victim, rather than a specific interest in enforcing sexual abuse laws

against respondent. In contrast to government officers like the police or DCFS investigators, medical

personnel who treat and diagnose sexual assault victims do not take on a similar investigatory or

prosecutorial function. Certainly, the medical examination of the victim involves the collection of

evidence for later use at a trial, because the victim's body and the injuries sustained may provide

evidence of the crime. Moreover, the medical evaluation undoubtedly becomes a component in the

determination by the police, State's Attorney, or DCFS investigator regarding whether the alleged

assault merits further investigation or prosecution.

Nevertheless, a victim's statements to medical personnel regarding "descriptions of the cause

of symptom, pain or sensations, or the inception or general character of the cause or external source

thereof" (725 ILCS 5/115-13 (West 2000)), are not testimonial in nature where such statements do not

accuse or identify the perpetrator of the assault. G.F.'s statements explaining how she was penetrated,

the pain, and the offender's use of a lubricant are relevant in assessing how Dr. Lorand reached her

opinion that G.F. sustained sexual abuse and are in accord with the statutory hearsay exception for

statements, made by a patient with a selfish interest in treatment, for the purpose of medical diagnosis

and treatment. Those statements were not accusatory against respondent at the time made and, thus,

do not trigger enhanced protection under the confrontation clause. Respondent's primary focus on

G.F.'s entire statement to Dr. Lorand as testimonial, because an objective witness would reasonably

believe the statement would be available for use at a later trial, misses the mark. Such an analysis

overlooks the crucial "witnesses against" phrase of the confrontation clause and casts too wide a net in
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categorizing nonaccusatory statements by sexual assault victims to medical personnel as implicating

the confrontation clause's core concerns regarding government production of ex parte evidence against

a criminal defendant.

To the extent that G.F.'s statements responded to Dr. Lorand's questions regarding the nature

of the alleged attack, the physical exam, and complaints of pain or injury, such statements remain

governed by the medical treatment hearsay exception statute. However, G.F.'s accusatory statements

identifying respondent as the perpetrator do implicate the core concerns protected by the confrontation

clause. When the content of G.F.'s statement concerned fault or identity, then such testimonial

statements are only admissible through Dr. Lorand if G.F. testifies at trial and is subject to crossexamination.

We find unpersuasive respondent's apparent contention that Crawford's questioning of the

continued viability of its holding in White indicates the Court would deem testimonial a child sexual

assault victim's statements to an examining physician made for purposes of medical diagnosis or

treatment. In White, the Court held that the prosecution need not produce the declarant child victim

and the trial court need not find her unavailable before her out-of-court statements to her babysitter,

mother, the investigating police officer, and the emergency room nurse and doctor would be admitted

under state-law hearsay exceptions for spontaneous declarations and statements made in the course of

securing medical treatment. White, 502 U.S. at 349, 116 L. Ed. 2d at 855, 112 S. Ct. at 739. The

Court held that when the proffered hearsay has sufficient guarantees of reliability to come within

firmly rooted exceptions to the hearsay rule, the confrontation clause was satisfied. White, 502 U.S.

at 357, 116 L. Ed. 2d at 860, 112 S. Ct. at 743. Although the Crawford Court subsequently

questioned White, it did so in the context of acknowledging that White's holding admitting a child

victim's statement to an investigating police officer as a spontaneous declaration was in tension with

the Court's faithful adherence to the Framers' understanding that testimonial statements of witnesses

absent from trial were admissible only where the declarant was unavailable and the defendant had a

prior opportunity to cross-examine. Crawford, 541 U.S. at 58 n.8, 158 L. Ed. 2d at 197 n.8, 124 S. Ct.

at 1368 n.8. Further, the Crawford Court stated that it need not resolve whether White's holding,
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which rejected the academics' proposal to apply the confrontation clause only to testimonial

statements and leave the remainder to regulation by hearsay law, survived the Crawford decision. 

Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 198-99, 124 S. Ct. at 1370. In White, the Court did not

reach the issue of medical personnel's testimony regarding the perpetrator's identity, and Crawford's

criticism of White did not specifically address more than White's admission of the child's statement to

the investigating police officer.

The confrontation clause errors in this case were not harmless beyond a reasonable doubt. See

Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). In People v. Wilkerson,

87 Ill. 2d 151, 157 (1981), our supreme court noted three approaches for measuring error under

Chapman: (1) focusing on the error to determine whether it might have contributed to the conviction;

(2) examining the other evidence in the case to see if overwhelming evidence supports the conviction;

and (3) determining whether the evidence is cumulative or merely duplicates properly admitted

evidence. Here, P.F. provided testimony describing G.F.'s outcry that respondent had "juiced" her. 

The evidence also included Dr. Lorand's physical findings and expert opinion that G.F. was sexually

abused. However, at trial, G.F. was not able to testify about the incidents of alleged abuse during her

limited direct examination before she froze, and Denise T. testified that G.F. recanted her allegations

against respondent. The testimonial statements made by G.F. to Detective Dwyer, DCFS investigator

Lewis, and Dr. Lorand were the only other evidence presented at trial to identify respondent as the

perpetrator. Moreover, those testimonial statements provided significantly more detail about the

assault than did P.F.'s testimony regarding G.F.'s statements. There is a reasonable probability the

admission of the testimonial evidence contributed to the adjudication of delinquency. In addition, the

evidence in this case was not overwhelming.

Retrial is not barred on double jeopardy grounds, because the evidence was sufficient to

support respondent's adjudication of delinquency. See People v. Dean, 175 Ill. 2d 244, 261 (1997). 

After reviewing the evidence in the light most favorable to the prosecution, we find a rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt. People v.

Olivera, 164 Ill. 2d 382, 393 (1995). We consider all the evidence introduced at the original trial,
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even if erroneously admitted. Olivera, 164 Ill. 2d at 393-94. P.F.'s testimony regarding G.F.'s

accusations against respondent was consistent with Dr. Lorand's findings that G.F. sustained sexual

abuse. In addition, P.F. rebutted Denise T.'s testimony that G.F. recanted her accusations against respondent.

Therefore, we reverse the judgment of the circuit court of Cook County and remand this cause

for proceedings consistent with this opinion. Accordingly, pursuant to the Illinois Supreme Court's

supervisory order noted at the outset of this opinion, we clarify again that we vacate our January 22,

2008 order in this matter and reinstate our September 7, 2007 opinion with the modification that this

cause is to be remanded to the circuit court for a hearing on the State's claim of doctrine of forfeiture

by wrongdoing. This hearing is to be held within 45 days of the entry of the instant opinion. Because

we have concluded that remand to the circuit court for a hearing on the State's claim of forfeiture by

wrongdoing is appropriate, we further provide, as required by the supervisory order of the Illinois

Supreme Court, the following direction to the circuit court on remand, pursuant to People v. Stechly,

225 Ill. 2d 246 (2007):

1. On remand, a factual determination should be made as to whether the State

can show by a preponderance of the evidence that defendant forfeited his confrontation

claim by intentionally intimidating G.F. not to talk about the offenses, since the

charges for which there was sufficient admissible evidence could be reinstated if there

was such a forfeiture; 

2. If, upon completion of the Stechly hearing, the circuit court finds there was

no such forfeiture by defendant, there should be a new trial to be held within 60 day of

such finding, at which the hearsay found testimonial in our September 7, 2007 opinion

should be excluded unless G.F. testifies and a legal basis can be provided by the

prosecution for the admission of the hearsay previously found testimonial and

inadmissible in our September 7, 2007 opinion.

In addition, we retain jurisdiction and require that a status report be filed by both parties as to the

progress of these hearings. That is, the parties are required to file with our court a status report within

14 days following the conclusion of the circuit court's hearing and its factual determination regarding
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the issue of forfeiture by wrongdoing to inform our court of the subsequent actions both parties will

take pursuant to the circuit court's ruling.

Reversed and remanded, with directions.

GALLAGHER, J., concurs.

O'MARA FROSSARD, J., specially concurs.

JUSTICE O’MARA FROSSARD, specially concurring:

I write to emphasize that whether a statement is testimonial in nature cannot be answered in a

vacuum, but requires examination of the totality of the circumstances surrounding the statement. I

further emphasize, as recognized by this opinion, not all statements made to a DCFS investigator or

social worker are per se inadmissible testimonial evidence under Crawford.

As noted by the opinion, section 115-10 allows the testimony of those who heard a child’s

statement describing any complaint, matter, or detail pertaining to the criminal offense regardless of

the testimonial nature of the child's statement. Section 115-10 was designed to address the difficulties

inherent in prosecuting cases involving child victims. However, such prosecutions are now required

to be undertaken consistent with the Crawford limitations as articulated by the United States Supreme

Court. Those limitations will impact application of section 115-10 in cases involving child victims. 

The Crawford decision significantly changed the application of the sixth amendment's confrontation

clause and the relationship of that clause to various rules of evidence regarding hearsay and hearsay

exceptions. 

Under Crawford, the sixth amendment's confrontation clause precludes the use of a

"testimonial" statement made by a witness who does not testify at a criminal trial, unless the 

witness is unavailable to testify at trial and was previously subjected to cross-examination. Crawford,

541 U.S. at 67-68, 158 L. Ed. 2d at 202-03, 124 S. Ct. at 1373-74. However, where the statement is

not "testimonial" in nature, the confrontation clause is not implicated and the statement's admissibility

is determined by applying evidentiary hearsay rules and various hearsay exceptions. Crawford, 541

U.S. at 67-68, 158 L. Ed. 2d at 202-03, 124 S. Ct. at 1373-74.

In the instant case, application of section 115-10 conflicts with the holding in Crawford. 
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Crawford recognized that such a conflict could occur but, as to nontestimonial evidence, concluded

that the states are entitled to determine the admissibility of statements consistent with the hearsay

rules and hearsay exceptions. Crawford, 541 U.S. at 67-68, 158 L. Ed. 2d at 203, 125 S. Ct. at 1374. 

Regarding the admissibility of testimonial evidence, Crawford requires adherence to the demands

imposed by the sixth amendment as indicated by the following: 

"Where testimonial evidence is at issue, however, the Sixth

Amendment demands what the common law required:

unavailability and a prior opportunity for cross-examination. We

leave for another day any effort to spell out a comprehensive

definition of 'testimonial.' " Crawford, 541 U.S. at 68, 158 L. Ed.

2d at 203, 124 S. Ct. at 1374.

While Crawford did not provide a comprehensive definition of “testimonial,” it did

recognize the following:

"Whatever else the term covers, it applies at a minimum to prior

testimony at a preliminary hearing, before a grand jury, or at a

former trial; and to police interrogations. These are the modern

practices with closest kinship to the abuses at which the

Confrontation Clause was directed." Crawford, 541 U.S. at 68,

158 L. Ed. 2d at 203, 124 S. Ct. at 1374. 

Chief Justice Rehnquist’s concurring opinion in Crawford criticizes the majority opinion

for failing to provide a more comprehensive definition of a testimonial statement: 

"[T]housands of federal prosecutors and *** tens of thousands of

state prosecutors need answers as to what beyond the specific kinds

of ‘testimony’ the Court lists *** is covered by the new rule. They

need them now, not months or years from now. Rules of criminal

evidence are applied every day in courts throughout the country,

and parties should not be left in the dark in this manner." 
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Crawford, 541 U.S. at 75-76, 158 L. Ed. 2d at 207-08, 124 S. Ct. at

1378 (Rehnquist, C.J., concurring, joined by O’Connor, J.)

The instant case underscores the significance of the concerns expressed by the Chief

Justice. Crawford requires testimonial evidence of an unavailable witness to be previously

subjected to cross-examination as a prerequisite for admissibility. Section 115-10 requires the

statement to provide sufficient safeguards of reliability but, contrary to Crawford, does not

require previous cross-examination of the testimonial evidence as a prerequisite for admissibility.

In Illinois there are hundreds of cases every year involving child victims where a child makes

statements to investigators, DCFS workers, and medical personnel relied upon by the State to

prosecute the alleged offender. Those statements are seldom, if ever, previously subjected to

cross-examination as now required under the Crawford standards for admissibility. 

The case law and the legal literature reflect that most often child victims, due to their

tender years, are unavailable to testify at trial. The problem presented by child victims of crime

who are unavailable to testify due to their tender age was resolved by section 115-10, which

allows in evidence children’s statements to investigators, DCFS workers, or medical personnel,

without prior cross-examination, providing they are found reliable by a judge in a pretrial

hearing. That approach was specifically rejected in Crawford: "Admitting statements deemed

reliable by a judge is fundamentally at odds with the right of confrontation." Crawford, 541 U.S.

at 61, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370. Under Crawford, if the unavailable child's

statement is testimonial, then the statement is inadmissible unless the statement was previously

cross-examined. 

Since Crawford was decided on March 8, 2004, a small number of cases from other states

have attempted to provide a definition of a testimonial statement. In People v. Moscat, 3 Misc.

3d 739, 777 N.Y.S.2d 875 (2004), the court found that "[a] testimonial statement is produced

when the government summons a citizen to be a witness." Moscat, 3 Misc. 3d at 745 , 777

N.Y.S.2d at 879. In support of that definition, the court in Moscat noted that a "person who

gives a formal statement, or deposition, or affidavit is conscious that he is bearing witness, and
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that his words will impact further legal proceedings." Moscat, 3 Misc. 3d at 746, 777 N.Y.S.2d

at 880.

In People v. Sisavath, 118 Cal. App. 4th 1396, 13 Cal. Rptr. 3d 753 (2004), the court

found a statement given by a victim to an investigating officer to be testimonial as it was given

knowingly in response to structured police questioning. Sisavath, 118 Cal. App. 4th at 1402, 13

Cal. Rptr. 3d at 758. Sisavath further found a victim's statement to a forensic interview specialist

to be testimonial. The court noted that the victim's statement was made under circumstances

which would lead an objective witness reasonably to believe the statement would be used at trial.

Sisavath, 118 Cal. App. 4th at 1402, 13 Cal. Rptr. 3d at 7858. Similarly, in Snowden v. State of

Maryland, 156 Md. App. 139, 846 A.2d 36 (2004), the court found statements by the children

victims to social workers were "testimonial" and their admission in evidence violated defendant's

sixth amendment right to confrontation. In support of that finding, the court in Snowden noted

that the children were interviewed by a social worker for the express purpose of developing their

testimony for trial. Snowden, 156 Md. App. at 157, 846 A.2d at 47.

The critical question regarding G.F.'s statements to DCFS investigator Lewis is whether

those statements were testimonial. DCFS is a legislatively created agency responsible for

protecting and promoting the welfare of the children of Illinois. In re C.J., 166 Ill. 2d 264, 268

(1995). Crimes against children implicate both criminal and social welfare concerns. DCFS and

the State's Attorney may share involvement in cases involving child victims; however, that factor

does not render all statements made to a DCFS investigator per se testimonial under Crawford. 

The question of whether a statement made by a child is testimonial in nature cannot be answered

in a vacuum, but requires examination of the totality of the circumstances surrounding the

statement. Whether G.F.'s statement is testimonial requires a close examination of the testimony

provided by DCFS investigator Lewis and the totality of the circumstances surrounding the

statement. 

Lewis testified that she was an investigator with the division of child protection for

DCFS. She was conducting "an investigation of child sex abuse with the victim by the name of
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G.F." She received the initial report in March of 2001, but first spoke to G.F. on May 4, 2001. 

After introducing herself she testified that she "asked several questions in order to do what we

call qualify her as a victim – an alleged victim." That testimony by DCFS investigator Lewis

could be considered as demonstrating the involvement of a government officer in the production

of testimony with an eye toward trial. In reviewing such testimony which had not been

previously subjected to cross-examination, Crawford noted "Involvement of government officers

in the production of testimony with an eye toward trial presents unique potential for prosecutorial

abuse ***." Crawford, 541 U.S. at 56, 158 L. Ed. 2d at 196 n.7, 124 S. Ct. at 1367 n.7. In the

instant case, after Lewis found that G.F. understood the difference between telling the truth and

telling a lie, G.F. spoke to DCFS investigator Lewis in detail about the incident involving the

minor-respondent T.T. 

The substance of the information provided by G.F. in her conversation with DCFS

investigator Lewis reflected that the declarant G.F. was bearing witness against the minorrespondent and that information was generated with an eye toward prosecution. Due to the

tender age of G.F., she may not have fully appreciated the fact that she was bearing witness

against the minor-respondent. That fact is not particularly significant because Crawford has

indicated that the perception of the witness can only be revealed by cross-examination. 

Crawford, 541 U.S. at 66, 158 L. Ed. 2d at 202, 124 S. Ct. at 1373. As previously noted, G.F.

was never cross-examined. 

Based on the totality of the circumstances, the statements made by G.F. to DCFS

investigator Lewis were testimonial. A review of the testimony provided by DCFS investigator

Lewis together with the totality of the circumstances in the context of the confrontation clause

analysis articulated by Crawford demonstrated that G.F.’s statements to DCFS investigator Lewis

were inadmissible testimonial evidence.

However, as recognized by this opinion, not all information provided to DCFS is per se

inadmissible testimonial evidence under Crawford. In Moscat, 3 Misc. 3d at 746, 777 N.Y.S.2d

at 875, the 911 call of a domestic violence victim who did not testify was found to be admissible. 
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The court rejected the defendant’s argument that such a call was testimonial under Crawford,

recognizing that such a call is the "electronically augmented equivalent of a loud cry for help." 

Moscat, 3 Misc. 3d at 746, 777 N.Y.S.2d at 880. A report to the DCFS hotline may not

necessarily implicate testimonial concerns under the Crawford confrontation clause analysis.

The Crawford confrontation clause analysis should not undermine the admission of a cry

for help by a child victim when such a cry does not qualify as testimonial. Where 

nontestimonial evidence is at issue, it is consistent with the purpose of the United States

Constitution to exempt such statements from confrontation clause scrutiny and "afford the States

flexibility in their development of hearsay law." Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203,

124 S. Ct. at 1374. The holding of the instant case should be narrowly construed in the context

of the facts presented and the principles articulated in Crawford.
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__________________________________________________________________________________________________________________________

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

 (Front Sheet to be Attached to Each Case)

_________________________________________________________________________________________________________________________

Please use the following

form In re T.T., a Minor 

(The People of the State of Illinois,

Petitioner-Appellee,

v.

 

T.T.,

Respondent-Appellant).

_____________________________________________________________________________________________

 No. 1-03-0551

 Docket No.

 Appellate Court of Illinois

COURT First District, FIFTH Division

 Opinion 

 Filed July 25, 2008 

 (Give month, day and year)

 __________________________________________________________________________________________ 

 PRESIDING JUSTICE JAMES FITZGERALD SMITH DELIVERED THE MODIFIED OPINION OF 

 THE COURT:

 JUSTICES GALLAGHER, J., concurs,

 O'MARA FROSSARD, J., specially concurs.

 Lower Court and Trial Judge(s) in form indicated in margin:

APPEAL from the

Circuit Court of Cook Appeal from the Circuit Court of Cook County.

County; the Hon________

Judge Presiding. The Hon. RODNEY H. BROOKS, Judge presiding.

__________________________________________________________________________________________________________________________

 Indicate if attorney represents APPELLANTS or APPELLEES and include attorney's of counsel. Indicate the word or

FOR APPELLANTS NONE if not represented.

John Doe, of Chicago

For APPELLEES, : APPELLANT: OFFICE OF THE STATE APPELLATE DEFENDER, Chicago, IL Michael J. Pelletier, Deputy Defender;

Maya Szilak, Assistant Appellate Defender

 _________________________________ __ 

Smith and Smith of 

Chicago, APPELLEE: STATE'S ATTORNEY, COUNTY OF COOK, Chicago, IL Richard A. Devine, State's Attorney; Renee 

Goldfarb, Janet Powers Doyle, Ericka Graunke, Assistant State's Attorneys

 __________________________________________________________________________________________________

(Joseph Brown, of counsel)

Add attorneys for thirdparty appellants and/or 

appellees.