1 The January 22, 2008 orde r entered by

our court vacated the September 7, 2007, opinion filed in this cause, granted petitioner-appellee The People of the State of Illinois' pe tition for rehearing and remande d the cause to the circuit court for an evidentiar y hearing on the limited issue of the equitable doctrine of forfeiture by wrongdoing, in compliance with a previous mandate of the Illinois Supr

eme Court

( In re T.T. , 224 Ill. 2d 575 (2007)). FIFTH DI VISI ON July 25, 2008

No. 1-03-0551 In re T.T., a Minor ) Appeal from the (The Peo ple of the State of I llinois, ) Circuit Court of

) Co ok Co un ty. Petitioner-Appellee, ) ) v. ) No. 01 JD 2958 ) T.T., ) Honorab le ) Rodney

H. Broo ks, Respondent-Appellant). ) Judge Presi ding.

PRESID ING

JUSTICE

FIT ZGERAL D SMITH deliver

ed the mod

ified opin ion of the court: Following a bench trial, respondent T.T. was a djudicated delinquent of two counts of aggravated cr

iminal sexual assault and sentenced to five y ears of probation. On appeal, respondent contends the trial court er red in fin ding the complain ing witne ss, G.F., unavaila ble to test ify at trial s o as to w arrant the pr eclus ion o f cross -exam inati on. Fu rther more, respo ndent , citi ng Crawford v. Washington , 541 U.S. 3 6, 158 L . Ed. 2d 177 , 124 S. Ct. 13 54 (2004) , argues that G. F.'s st atements to a police detective, a Department of Children and F amily Services (DCF S) investigator, and a physician wer

e 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 rig ht to confrontation. We note here that the Illinois Supreme Court has enter ed a supervisory

order ( In re T.T. , No. 106081 (May 30, 2008))

directing this court to vacate our previous order of January 22, 2008 1 in this matt er and r einst ate ou r Sept ember 7 , 2007 opin ion. In compl iance w ith t he Illin ois S uprem e Cour t's supervisory orde

r, 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

.1-03-0551

-2-

As we con

cluded pr eviously , we hold, for the f

ollowing reasons , the tria

l court pr operly 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 phy sician identifying

respondent as the perpetr ator was testimonia

l. Beca use G.F. was not cross-exa mined at tr

ial, her testimonia

l stateme nts were not admissible where respondent had no prior opportunity for cross-examination. Because the trial cou rt consid ered te stimonial e

vidence in the abs ence of

a prior o pportunit y f or cross exam inati on, we revers e the j udgmen t of th e tria l cour t and r emand the cau se for f urthe r proce edings not inconsistent with this opinion. BACKGROUND On May 24, 2001, t

he State f iled a petition for

adjudica tion of wa

rdship of responde nt, 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 Proce dure o f 1963 (725 ILCS 5 /115 -10 (W est 20 00)) t o admi t G.F. 's out -of-co urt st ateme nts t hrough her mother P.F., DCFS investigator Gloria L ewis, and Chicago police detective Patricia Dw yer. Section 11 5-10 prov

ides, in r elevant part, tha t in a pros ecution f

or a sexua

l act per petrate d again st 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 whic

h is an element of the charged offense is admissible as an exception to the hearsay rule. 725 IL CS 5/115-10(a) (West 2000). Such testimony is only

admitted if the court finds in a pretrial hearing that the time, conte nt and circumstances of the statement provide sufficient safe guards of reliability and the child either testifies at the trial or is "unavailable as a witness" a nd there is corroborative evidence of the act which is the subject of the statement. 725 ILCS 5/115-10(b) (West 2000). At the sec tion 115-1 0 motion he aring, P.F., L ewis and Detecti ve Dwy er testif ied generally consistently concer

ning G.F.'s statements about the events in Dec ember 2000, when she stay ed for 21⁄2 days at the home of

Denise T., her baby sitter and respondent's mother. G.F. was seve n years old a

t the time. Anot

her gir l, respon dent's n iece A. W., age

six, was als o there. During G.F.' s stay , respond

ent, then ag e 14, alle gedly

penetra ted G.F. 's vagina and a

nus with his

penis.1-03-0551

-3-

Specifically, P.F. testified she left G.F. at Denise T.'s home for ba bysitting on Monday afternoon, De cember 18, 20 00. G.F. had k nown respon dent for four years and cal led him "Po oh." G.F.'s sister picked G.F. up on Wednesd ay and returned her home a bout 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 "di ng-a-ling" in her "bo otie" and her "fann ie." Based on G.F. 's prior use of t hose terms, P.F. understood her to mean that respondent had sexual intercourse with her a nd put his penis in her bu tt oc ks an d v ag in a. G. F. to ld P. F. th at re sp on de nt di d t hi s t o h er on Mo nd ay a nd ag ai n o n T ue sd ay, 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. a nd respondent's sister about the incidents, they bathed he

r. 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

phy sician un

til May 7, 2001, after DCF S contact ed P.F. D CFS invest

igator Lewis went to P. F.'s home on May 4, 2001 , and spoke t o P.F. and G. F. DCFS investigator Lewis testified that she worked for the child protection unit for several years. L ewis estimated that 95% of her cases involved investigations of a llegations of sexual abuse, and she had investigated hundreds of such ca ses. In March 2001, she re ceived G.F.'s case ba sed on a hotline report indicating G.F. told the reporter that her vagina had been penetrate d with a finger. On March 8, 2001, Lewis spoke by telephone with the reporter and learned G .F. told the reporter that responde nt put his fi

nger in G.F.' s vagina . Lew

is attempt ed to cont act G.F . within 24 h

ours to as sess her saf ety , but was not able to

locate her. On Ma

rch 12, 2 001, L ewis was

intervie wed by a Ms. Ba tes, to whom L ewis con

vey ed the re porter' s March 8 statemen t. Le wis went to

P.F. and G .F.'s home

severa l times and

left lette rs, but ne ver made contact with eithe

r of them u

ntil she dr

ove to the ir home on May 4, 2001, a

nd saw the

m leaving the resid ence. Lewis inte

rviewed G.F. in Lewis's

car whil e P.F. sat in the backseat. Lew is introduced herself to G.F. and asked her se veral general questions regarding her a

ge, school and the color of clothing to deter mine how credible she was in her statement s. Lewis determi ned that G.F. knew the diff erence between te lling the tr uth and a li e. G.F. was talka tive, quic kly voluntee red information, a

nd gave detailed accoun ts.1-03-0551

-4-

Lewis testified that G.F. said she wa s at Denise T.'s house and play ing with A.W. During the daytime, Denise T. went to the store and left G.F. and A.W. in the care of r espondent's older sister, but she st ayed in her bedroom wi th the door closed. Res pondent ent ered the livi ng room and to ld G.F. and A.W. that they were

going to play

wrestling. Respondent took G.F. into Denise T.'s bedroom a nd removed G.F.' s one-pie ce paja

ma outfit. When resp ondent pu lled her panty down, G.F . tried to p

ull it back up. Responde

nt wore p ajama bo ttoms and p ulled the m down to his

thighs. G .F. told Lewis "Pooh" stuck his "thing" in her " fannie" and in her, pointing to indicate her va ginal 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, re spondent 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 chee ks. Then, respondent put G.F. in the closet

and A.W. on

the bed. When G.F. tried to pe ek to see what res pondent w as doing

to A.W., he th

rew a c over on h er head

so she cou

ld not see . Responde

nt 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 a s soon as she saw her. Le

wis testified that P.F. did not participate in any way whe n G.F. made her statement to Lewis. Moreover, Lewis never told G.F. what to say and never had to prompt her. Detective Dwy

er testified that she was investigating the sex crime involving r espondent and met G.F. and P .F. at headquar ters on May 23, 2001 . Detectives Dwyer and Collins i nterviewed G. F. while P.F. sat right outside the open door of the confere nce room. The detectives told G.F. that they were police officers and wer e assigned to investigate sex crime cases. The y asked G.F . general questions and determined she was credible, articulate a nd knew why she was there. The detectives asked G. F. what happene d at Denis e T.'s house, and G.F. sa id that re spondent brought her into De nise T.'s bedroom and pulled her pants and panty down. When G.F. pulled them back up, respondent pull ed the m down again, put G. F. on t he bed , and p ut hi s "thi ng" in h er "pri vates ." G.F. said a "thin g" is what boys pee fr

om and "privates" are what g irls pee from, and she pointed to indicate her vaginal area. G.F. said that respondent then broug ht 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 tha t, she responded that it hurt her. G.F. said the next day1-03-0551

-5-

respondent did it to her again in his bedroom and caused pa in, and that A.W. was there in the closet. G.F. s aid res ponde nt th reaten ed to k ill h er if s he tol d anybody, bu t she t old De nise T . and r espon dent's sister. Dwyer

testified that the detectives asked G.F. specific que stions and she answered them very

ma tt er -o f- fa ct ly. At the con

clusion of the sect ion 115-10

motion hea

ring, the State in formed the court t hat it anticipa ted that G .F. would

testify at trial. The tria

l court he ld that G.F .'s stat ements to P .F., L ewis, and Detective Dwy

er would be admissible at trial because the time, content and circ umstances of the st at em en ts pr ov id ed su ff

ic ie nt sa fe gu ar ds of

re li ab il it y. At the tria

l in Augu st 2002, Dr . Michelle Lora nd testifi ed as an e

xpert in the

area of pediatr ic 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. L orand met G.F., who was accompanied by P.F., on May 7, 2001, in the emergency room. They had be en referred by DCFS for a medical evaluation of allege d sexual abuse. Dr. Lorand introduce d herself and explained she would conduct a phy sical exam of G.F., including every

thing that is generally

incorporated into a pediatric physical exam and a careful examinat ion of the geni tal and rectal areas. Dr. Lorand spo ke first to P.F. alone, then spoke t o G.F. alone to hear i n her own words what, if anything, hap pened to her, and then ex amined G.F. wi th 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 a

nybody had ever hurt her in her private par ts or in the butt or buttocks area, and G.F. said ye s. Over the defense's objection, Dr. L orand testified that when she asked G.F. who hurt her, she responded "Pooh" and explained that he wa s the son of her mother's friend. Dr. L orand asked what h appen ed, an d G.F. respo nded t hat he pull ed her p ants d own to her kn ees and stuck his "t hing" in front a nd in back , pointing

to indica te her g enital an

d recta l areas . G.F. sa

id he put ba

by o il on his "thing," that it happened one time, that she told her mother w hen it happened, and she had not seen the person since then. G.F. said it hurt worse when he stuck it in bac k than in front. G.F. and her1-03-0551

-6-

mother reported that G.F. never complained of any hard stool or bowe l movement problems, and there was no ble eding or discha rge fr om her va gina or anus. Dr. Lorand then per

formed the physica

l exam. G.F.'s vaginal exam was normal, but her rec tal

exam reveal ed two scars, which indi cated s ome te aring o r lacer ation highl y suspici ous fo r penet ratin gtype trauma. Dr . Lorand explained that the vag inal area healed more quickly than the rectum, and some child

ren hea led compl etely

from penetrating

injuries t o the vagina. Ba sed on G.F .'s stat ement to Dr. Lorand and the phy

sical exam, Dr. Lorand conclude d that the injuries were older than two weeks and that G.F. was sexually a bused. When trial

resumed in Novemb er 2002, the part ies stipula

ted to the testimony

of P.F., L

ewis, and Detective Dwy

er from the section 115-10 motion hearing. G.F. te stified that she was nine ye ars old. On dir

ect examination, she

answer ed general que stions abo

ut her ad dress, sc hool, and family members and demonstrated she knew the differe nce 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 Dece

mber 2000, G.F.'s mother took her by bus to Denise T.'s house. Although G.F. was suppo sed to

stay ther e onl y one da y, she s tay

ed th ree d ay s, sle eping in t

he liv ing r oom wi th A.W

. G.F. tes tified tha

t when she , A.W. and r

esponde nt were p lay-wrestl ing in De nise T.' s bedroom , responde nt tried to unbutton G .F.'s p ants. G.F . rememb ered how responde nt did that, but then sa

id "No," when the prosecutor aske d her to tell the judge how respondent did that. When the prosecutor asked G. F. what happene d next, G.F . did not re spond. The prosecu tor told G. F. that it

was "ok ay to tell the judge exactly w

hat happened," but G.F. said, "Nothing ." G.F. testified that the next day she a nd A.W. were sleeping in the living room, respondent was behind her but did "Nothing," and then the thre e went into Denise T.'s bedroom. G.F. did not respond when as ked wh at hap pened next , but said "Y es," wh en ask ed if s he want ed to t ake a br eak. Th e judge admonishe d the par

ties not to s

peak to G .F. reg arding

the case , but state d that G.F .'s mothe r could comfort her during the break. B efore resuming, the prosecutor r elayed G .F.'s request to testify from the witnes s stand, ex plaining G.F. "prefers to be beh ind here as lo ng as she can be heard and seen." The tria l court g ranted t he reque st.1-03-0551

-7-

G.F. testif

ied that res pondent un buttoned h er pajama sui t in Denise T.'s bedroom, but G.F. would not respond when asked what happened next. Several times during direct questioning, the court sust ained defense co unsel's obj ections to the prosecut or's leading ques tions or co mments 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 wha t happened next. During a sideba r, the pr osecutor argue d that he was entitle d to lead t he witnes s, but the t

rial cou rt, acknowledging the sensitive nature of the proceedings, stated that G.F. must present the e vidence without being led. Upon resumption of questioning, the following occur red: "MR. H ARVAT H [As sist ant S tate's Atto rney]: Di d anythin g else h appen in Den ise's room? G.F.: Ye s. MR . H AR VA TH : C an you te ll th e j ud ge wh at ha pp en ed ? It' s o ka y. MS. DAGO [de fense c ounsel]: Judg e, aga in I would objec

t to commen

ts by counsel. THE COURT: Sustain. MR. HARVATH: Can you tell the judge what happened? Can you tell the judge yes or no? J udge, I'm going to ask thi s witness b e deemed and decl ared unavailab le at this t ime." Defense counsel argue d

G.F. was responsive, said that nothing happened, a nd "her demeanor

was one o f kind of g

igglin g at time s or smiling ." The tr ial cour t found tha

t G.F. wa s unavail able where she "froze," noting she would not say any

thing after she testified that respondent unbuttoned her pajama suit. Defense counsel then soug ht clarification that G.F.'s responses " that nothing happened" would stand in the record. I nitially, the trial court responde d that none of G.F.'s testimony would be c onsidere d, but whe n the State

argue d there was no basi s to strike G.F.' s testimony

where it indicated she was competent but became unavailable to discuss the assault allegations, the court ruled th at "i t w il l s ta nd ." De fe ns e c ou ns el di d n ot ob je ct or mo ve to st ri ke G. F. 's te st im on y. The St ate res ted, a nd th e defen se mov ed for a direct ed fin ding, arguin g that G.F. said nothing happened and her testimonywas inconsistent. The trial court denied the motion, stating the out-ofcourt sta tements w ere re liable an

d corrob orated by D r. Lorand' s testimony. There after, defense1-03-0551

-8-

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 alleg ed assault. The trial court reiterated its ruling that G.F . was not available. Denise T. testified G.F. never complained in Dec ember 2000 that respondent touched her. After D ecembe

r 2000, De

nise T. an d P.F. re mained f riends, p layed card s, and saw each other almost daily . Denise

T. spoke w

ith G.F. a nd P.F. in a

parking lot one ev ening in

April 2001 and aske d G.F. if respondent touched her. According to Denise T., G.F. replied "no," and g rinned, laughed and put her hand ove r her mou th. Denise

T. testifi ed that P.F . heard t his conve rsation b ut made no

comment. In rebuttal, P.F. acknowle dged having a conversa tion in April 2001 with Denise T. but testified that G.F. was not present. Moreover, P.F. neve r heard G.F. tell Denise T. that the incident with respondent did not happen. P.F. and Denise T. lived in the same neighbor hood and sometimes saw each other or went shopping, but they did not see each other for several months beca use of the

case. In closing arg

ument, defense counsel argued G.F.'s testimony during direct examination that "nothing happened" contra dicted her out-of-court statements alleging respondent sexually assaulted her. The trial court found respondent delinquent, and re spondent appealed, challenging only the trial court' s determi

nation tha t G.F. wa s unavail able. While this appe al was pe

nding, the Supreme

Court in Crawford departed from its prior confrontation clause analy sis and announced a framework for evaluating confrontation claims that differed sig nificantly from the a

nalysis that was applicable at the time of respondent's trial. The parties submitted supplemental briefs on the ef fect of Crawford

on the admissibil ity o f G.F.' s out-of- court sta tements. ANA LYSIS I. G. F.'s U

navaila bility Responde nt first c ontends the trial c ourt err oneously determined that G. F. was un availab le to testify after

she made allegedly

exculpatory statements during direct examination, and then erred by denying respondent an opportunity to cr oss-examine her. A trial court's rulings on evidentiary matters will not be reversed absent a clear abuse discretion, whereas evidentiary rulings involving questions1-03-0551

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of statutory interpre

tation 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 rig orous standard. People v. Johnson , 118 Ill. 2d 501, 509 (1987) . Child sexua l abuse c ases pre sent spec ial proble ms where the child vi ctim may be unable

to testify adequa tely due to fe ar, gu

ilt or intimi dation. Ch

ild witnesses are considered unavailable if it is demonstrated to the trial c ourt that the children were unwilling or unable to testify be cause of fear, unable to communicate in the c ourtroom setting, or declar ed incomp etent be cause they were inc apable o f express ing them selves c oncerni ng the ma tter so as to be understood. People v. Coleman , 205 I ll. App. 3d 567, 583 ( 1990); People v. Rocha , 191 I ll. App. 3d 529, 539 (1989). The trial court properly applied this unavailability definition in the instant

case considerin

g G.F. 's tende

r y ears an d the cir cumstanc es. 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. I n Coleman , the six-y

ear-ol d witness was prope rly declar ed unava ilable after she testified that the defendant had given her a "bad touch" more tha n once but then froze up and would answer no more questions. Coleman , 205 I ll. App. 3d at 573. The trial c ourt atte mpted to speak to the child during a recess, but during the court's questioning and on cross-examination, the child re sponded to

gener al questions by

either shaking or nodding her hea d and woul d not resp ond to questions concerning the sexual abuse. Coleman , 205 Ill . App. 3d at 5 73. W e rejec t resp onden t's argume nt that Colemanshould be read narrowly to hold that, before a child witness can be found unavaila ble, the d efense must have

an oppor tunity to cross- examine he

r or the tr ial cour t must personally question her . The Colemancourt spe cifical ly noted that "[o]nce a child witness is una

ble to proceed with his or her testimony , whether that point occurred prior to taking the stand or subsequent ly, he or she is prop erly considered unavai lable." Coleman , 205 Ill. App. 3d at 583. Here, G.F. responded to ge neral questions about her family and school, demonstrated she knew the difference betwee n the truth and a lie, identified respondent in court, and explained how she came to be at his home on the dates of the allege d assaults. However, as soon as the questions1-03-0551

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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 r

emember . G.F. tw

ice said something

unusual ha

ppened 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 ha ppened, did not respond when asked what happened, then said responde nt was behind her, but said, "Nothing," when a sked, "What did he do?" G.F. stopped answering questions and was allowed to take a recess, have her mother comf

ort her, and t estify from behind the witnes s stand when direct exam ination res umed. 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 alleg ed incidents of sexual ass ault. Despite the best efforts of the prosecutor, G.F . ceased testify ing. The prosecutor repeated a nd rephrased the questions, but G.F. did not answer. The trial cour t was mindful of the sensitive nature of the proceedings and car eful to afford G.F. a fair opportunity to testify without being unduly led. The trial court granted her re quest for a recess, allowed her mother to c omfort her, and acquiesced whe n G. F. a ske d t o t est ify f rom beh in d t he w it nes s s tan d i nst ead of t he c ent er o f th e ro om . In addit ion, the tr ial co urt co nduct ed a si debar w ith co unsel to di scuss G.F.'s silen ce and t he St ate's reques t for l eeway in qu estio ning h er. Th e tria l jud ge was i n the b est po siti on to obser ve 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 defere nce on review. See Hall , 195 Ill. 2d at 21. We find that G.F. was proper ly considered una

vailable. Because the record supports the tria l court's determination that G.F. was unavailable, respondent's argument that he wa s prejudiced by the preclusion of her cross-examination after her limited direct testimony lacks merit. On appe al, the defense is adamant that "respondent doe s not

ass ign any e rro r to th e tr ial cou rt' s de cis io n t o al lo w G. F.' s di rec t t est im ony i nt o ev id enc e." In addition, the record is clear that both the State and defense counsel wanted the trial court to allow1-03-0551

-11-

G.F.'s limi ted te stim ony on di rect ex amina tion to st and. D efense couns el did not m ove to stri ke G.F. 's testimony but, rather, utilized it. Specifically, defense counsel argued in both the motion for a directe d finding

and closi ng arg ument tha t G.F.' s "nothin

g" re sponses me ant resp ondent did nothing t o her othe r than unb

utton her pants. Th e defen se cannot chang e that str ategy on appea l to claim

re sp on de nt wa s p re

ju di ce d b y G. F. 's te st im on y.

II . Confrontation Clause Violations Respo ndent next chall enges t he adm issi on, pu rsuan t to s tatut ory hearsa y excepti ons, o f G.F.'s statements to Detective Dwy er, DCFS investigator Le

wis, and Dr. Lorand. Respondent, c iting the new rule announced in Crawford , claims those statements constituted testimonial evidence and violated his right to confrontation because G.F. wa s not subject to cross-examination at trial and there was no prior opportunity to cross- examine her. We reject the State's arg ument that respondent waived this issue. Judicial opinions announcing new constitutional rules applicable to criminal cases are retroactive to all cases pending on direc t 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 principle s centra

l to the mea

ning of t he confr ontation c lause' s guara

ntee tha t "[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 ag ainst the civil-law mode of criminal procedure, particular ly 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 unava ilable to testify and the defendant had a prior opportunity for cross-examination. The Court asserted that its case law had been consistent with these p rinciple s but ackn

owledg ed its rat

ionales had not, as

demonstr

ated in Ohio v. Rob erts , 448 U.S. 56, 66, 65 L. Ed. 2d 597, 608, 100 S. Ct. 2531, 2539 (1980), which1-03-0551

-12-

conditioned the ad

missibility

of hearsay

evidenc e, reg ardless

of its test imonial na

ture, on w

hether i t 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 renounce d the unpredictable, amorphous, subjective Robertstest, stating that courts cannot replace the conf rontation clause's prescribed proce dure of cross-examination with a procedure of their own de vising. Crawford , 541 U.S. at 61-62, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370. The Court, however, re iterated that the confron tation cla use plac es no con straints on the use o f the dec larant' s prior te stimonial s tatement s when he appears for cross-e xamination 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] hatev er els e the t erm cov ers, i t appl ies at a mini mum t o prio r test imon y at a preli minar y hearing, before a grand jury, or at a fo rmer trial; and to poli ce interrogatio ns." 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 testimon ial statem ents exi st. Specif ically, petitio ner's brief suggeste d that test imonial m eant " ' ex parte in-court testimony or its functional equivale nt--that is, material such as affidavits, custodial examinations, prior testimony that the defendant wa s unable to cross-examine, or similar pretrial statement s that declar ants would reasonably expect t o be used pros ecutoriall y.' " 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) sugg ested the following definition: " 'st

atements that wer e made un

der cir cumstanc es which

would lea

d an objec

tive witne ss reasonably to believ e that the st atement wou ld be availab le for use at a l ater trial.' " Crawford , 541 U.S . at 52, 158 L. Ed . 2d at 1 93, 124 S. Ct . at 136 4 (q uot in g Bri ef f or N ACD L et al . as Amici Curiae at 3). However, another formulation contained in an e arlier Court concurring opinion was limited to " 'extr ajudicia l stateme nts . . . con

tained in formalize d testimoni al mater ials, such as aff

idavits, depositi ons, prior testimon y or confessions.' " Crawford , 541 U.S. at 51-52, 158 L. Ed. 2d at 193, 124 S. Ct . at 13 64 (qu otin g 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 concurr ing in judgment, joined by Scalia, J.)). The1-03-0551

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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 covera ge 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 apply ing the confrontation clause to testimony made in contemplation of legal proceeding s. Justice Thomas cautioned that such an approach might prove dif ficult to apply and would entang le courts in a "multitude of difficulties" in attempting to draw a line betwee n statements made in contemplation of legal proceedings and those not so made where it was not clear whether the de clarant or the listener must be contemplating legal proceeding s. White , 502 U.S. a t 364, 116 L . Ed. 2d at

864-65, 1 12 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 construe d 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. a t 364-65, 1 16 L. E d. 2d at 86 4-65, 112S. Ct. at 747 (Thomas, J., concurring in part and concurring in judg ment, joined by Scalia, J.). Along the same vein, the Crawford Court rej ected 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. a t 66, 158 L . Ed. 2d at

202, 124 S. C t. at 1373. The Court also rejected an analy

sis that assessed the testimonial nature of the declarant's state ment based on her perception of he

r situation, finding

that such a deter mination c ould only

be reve aled by

crossexamination. Crawford , 541 U.S. at 66, 158 L. Ed. 2d at 202, 124 S. Ct. at 1373. Crawford indicates that gov ernment

al involve ment in some

fashion i n the cre ation of a

formal st atement i s necess ary

to render the statement testimonial in nature. When other factors ar e 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 g uarantee of cross-examination is trigge red. Crawford , 541 U.S. at 56 n.7, 158 L. Ed. 2d at 196 n.7, 124 S. Ct. at 1367 n.7 ("I nvolvement of government officers in the1-03-0551

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producti on of test

imony with an ey

e toward trial pre sents uniq

ue potent ial for pr osecutor ial abuse ***"). We find that G.F.'s statement to Detective Dwy er was testimonial. Although some ty pes of hearsay statements, like an offhand, overheard rema rk or a casual remark to an acqua intance, are not the sort of statements at which the confrontation clause was dire cted, "[s]tatements taken by police officers in t he course of in terrogations are *** testi monial un der even a narrow s tandard." 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

colloquia l rather than a te chnical , legal

sense, a nd the poli ce offi cer's

function is essenti ally 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 knowing ly given in re sponse 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 Dwy

er testified that she and her partner wer e investigating the sex crime involving respondent and interviewed G.F. at headqua rters six months after the alleged assault. The detectives told G.F. they we

re police officers assigned to investig ate sex crimes. Detective Dwy er testified that G.F. "knew why

she was there" and was asked spe cific, 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 a ccusatory statements made to the police during the interview and naming respondent as the perpetrator clear ly implicate the confr

ontation clause's core concer ns. 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 una vailable, she did not complete direct examination at trial and was not subject to any cross-examination. Accordingly , introduction of her statements to the detectives violate d respond ent's r ight to c onfront t

he witnes ses aga

inst him. We also find that G.F.'s statements to DCFS investigator L ewis were testimonial. Given that child abuse has both criminal and social welfare implications, DCFS and the State' s Attorney may natural ly share some involve ment in a p articula

r case. We recog

nize that ou

r supreme court, in addres sing wh ether r espon sibi lity for d estru ction of evi dence b y DCFS cou ld be i mput ed to t he St ate's1-03-0551

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Attorney, re

jected the notion that child protective service investigators a re a prosecutorial arm of the State simply by

virtue of their mandate to investigate reports of suspec ted child abuse and neglect. In re C .J. , 166 I ll. 2d 264, 2 69 (1995) . Howeve r, wher e DCFS wo

rks at the behest of and in tan

dem with the State's A ttorney with the i ntent and pu rpose of assi sting in th e prosecutori al effort, DC FS functions as an agent of the prosecution. In re C .J. , 166 Ill. 2d at 270. To determine, for purposes of a confron tation cla use anal ysi s, the exte

nt to which

Lewis was wor

king to a ssist the pr

osecutor ial effort, we revie w Le wis's te stimony

in the con

text of the mechanic s of the DC FS investi gatory process . Certain s tatutory

provision s and reg

ulations in

dicate that DCFS investiga tors may work in conjuncti on with law enforcement i n assisti ng the prosecut orial effort. Specificall y, DCFS immediately refe

rs reports of alleged child sexual abuse to the police and State' s Attorney for consider ation of a criminal investig ation or o ther action. 325 I LCS 5/7(West 2000 ); 89 I ll. Adm. Code § 300.7 0 (200 0). DC FS may del egate t he inv estiga tion of the report to th e poli ce or S tate's Attorney when the

y are c oncurrently c onducting a criminal investigation of the same incidents and allegations. 325 ILCS 5/7.3 (West 2000); 89 Ill. Adm. Code §300.80 (2000). In c onducting a formal investig ation, the

DCFS inve stigator will, af ter see ing to the

safety of the ch ild, inter view the p eople residing in the child's home, the allege d perpetrator and other people who may be helpful to the investigation. 325 IL CS 5/7.4(b)(3) (West 2000). Once the investigator has ga thered the important facts from the people involved, a decision or finding must be made by the investiga

tor pending review by a supervisor. 325 I

LCS 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 IL CS 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 pendi

ng crim inal inve stigation, or bec ause med ical rep orts necessary for a determination are still pending. 89 Ill. Adm. Code §300.110(i)(3)(D) (2000). Here, Lewis was

not able t

o see G.F . within 24 h

ours of the March

hotline re

port, but t alked to the reporter and learne d that re spondent a lleged ly p enetra ted G.F. 's vagina with hi s finge r. Le wis apparently de

termined that the report was made in good faith and be gan a formal investigation. After

severa l unsucce ssful atte

mpts to con

tact G.F . and her

mother, Lewis eve

ntually intervie wed G.F . in1-03-0551

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May durin g an uns chedu led vi sit t o thei r home . Lewis i ntrod uced h ersel f to G. F., ass essed G.F.'s credibili ty and then intervi ewed her util izing open- ended questi ons. Durin g this inter view, G.F. accused respondent of the above-mentioned a cts 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. I n the context of a confrontation clause analy sis, where the focus is on whether the declara nt is bearing witness against a criminal defendant when making a formal state ment to a government officer with an ey e toward prosecution, G.F.'s statements to Le

wis were testimonial. See People v. Sisavath , 118 Cal. App. 4th 1396, 1 3 Cal. Rptr. 3d 75 3 (2004) ( statemen ts of child victim to in

vestiga ting off icer an d to an inte

rviewer at a facility specia

lly designed to inter

view children who are suspected victims of child abuse we re testimonia

l); Snowden v . State , 156 Md. Ap p. 139, 846

A. 2d 36 (2 004) (out-of-co urt state ments describing sexual abuse made by children during an interview with a social servic es investigator were testimonial). The State argues that certain fa ctors--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 f ormal, official statement. Those factors, however , were more the result of P.F.'s re luctance to cooperate with DCFS's re quests to interview G.F. and do nothing t o alter the testimon

ial natur e of G.F .'s stat

ements to L

ewis. Mor

eover, a court' s attempt t

o fashion such factors into some ty pe of litmus test for testimonial evidence would undermine the confrontation clause's protections. Vag ue standards are manipulable, and the neutral motives of the government official toward the dec larant 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 a s the susceptibility of the child witness due to normal deve lopmental limitations, to forget details when there is a substantial delay between the event and the request to rec all it at trial. Section 115-10 allows the testimony of those who hea rd the child's statements describing any complaint, matter or1-03-0551

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detail pertaining to the criminal offense. I f 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 hea rsay that is testimonial. We assign no ill motives to the State, but if the State could simply use the surrog ate testi

mony of socia l workers provide d that ce rtain for malities- -like a sc

heduled i ntervie w at a gover nment off ice in a q uestion- and-answer for

mat--we re abse nt, then pr

osecutors would ha

ve 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 87 5 (2004) ( call to 91 1 by domestic a ssault complainant was not testimonial)), or statements of sexual abuse overheard by a social worker (see People v. Bowen , 1 83 Ill . 2 d 1 03 , 1 07 (1 99 8) ), wo ul d b e a dm is si bl e a s n on te st im on ia l h ea rs ay. Regarding G.F.' s hearsay

statements to Dr. Lorand, we f ind that G.F.'s statements describing the cause of sy

mptoms or pain or the general charac ter of the assault were not testimonial in nature. However, G.F.'s statement identify ing respondent as the perpetrator wa s testimonial, and the admis sion of Dr. Lorand's testi mony regard ing G.F .'s st ateme nt of i denti ficat ion v iolat ed resp onden t's right to confrontation where G.F. wa s not available at trial for cross-examination. Dr. L orand wa s a membe r of a ch ild abuse protect ion unit at t

he hospita

l and had p

reviousl y testifie d as an expe

rt witnes s in child a

buse cas es. DCFS r

eferr ed G.F. to Dr. L orand for diagn osis and evaluation of sexual abuse six months after the alleged assault. At trial, Dr. L orand recounted her physical finding s in addition to what G.F. told her about where on her body she had been hurt, the offender's use of a lubrica nt, 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 medica l 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 evaluat ion afte r the alle ged as sault. Mor eover, governme

nt offici als like po lice off icers c ommonly take sexual assault victims to the hospital for treatment and evaluation. We also find unpersuasive1-03-0551

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respondent's assertion that the relationship between DCF S and Dr. Lorand at the time of the examination indicated that she constructively a cted 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 medica

l activity . Althoug

h Dr. L orand ma

y ha ve been part of a child abu se trauma

team, she was not charged with facilitating the prosecution of the case aga inst respondent. As a medical expert wit h a profe ssional int

erest in a patient' s treatme

nt, Dr. Lorand' s primary

investmen

t in coopera ting with law enforcemen

t agenc ies was in

facilita ting the least tra umatic me

thod of dia

gnosis and treatment for the alleged victim, rathe r than a specific interest in enforcing sexual abuse laws against respondent. I

n 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 investiga tory or prosecutorial function. Certainly , the medical examination of the victim involves the collection of evidence for later use at a trial, bec ause the victim's body and the injuries sustained may pr ovide evidence of the crime. Moreover, the me dical evaluation undoubtedly be comes a component in the determination by the police, State' s Attorney, or DCF S investigator regarding w hether the alleged assault merits further investigation or prosecution. Nevertheless, a

victim's statemen ts to medic al personnel reg arding "descr iptions of t

he cause of symptom, pain or sensations, or the ince ption or general characte

r of the cause or external source thereof" (725 I

LCS 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 rea

ched her opinion that G.F. sustained sexual abuse and are in accord with the statutory hearsay exception for statemen ts, made by a

patient w ith a self ish intere st in trea

tment, for the purpo se of med

ical diag nosis and trea tment. Tho se statements wer e not acc usatory against respond

ent at the time made

and, thus, do not trigger enhanced pr otection under the confrontation clause. Respondent's pr imary focus on G.F.' s entire statement

to Dr. L orand as

testimonia

l, becau se an obje ctive wit ness woul d reasonably believe the state ment would

be avail able for

use at a l ater tri al, misses the mark . Such an a

naly sis overlooks the cru

cial "w itnesses a gainst" phrase o f the confrontati on clause and cast s too wide a

net in1-03-0551

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categorizing nonaccusatory statements by sexual assault victims to medical personnel as implicating the confrontation clause's core c oncerns regarding government production of ex parte evidenc e aga

inst a crimina l defend ant. To the extent that G.F.'s statements responded to Dr. L orand's questions regarding the nature of the al leged a

ttack, th e phy sical exam , and comp laints of p ain or inju ry , such sta

tements r emain gover ned by the medic al treat

ment hea rsay exception

statute. H owever , G.F.' s accusa tory statemen ts identifying r

espondent as the perpetrator do implicate the core concerns protected by

the confrontation clause. When the content of G.F.'s statement conc erned fault or identity , then such testimonial statemen ts are on ly a dmissible t

hrough Dr. L orand if

G.F. tes tifies at

trial and is subjec t to crossexamination. We find unp ersuasi

ve respondent' s appare

nt conten tion 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 phy sician made for purposes of medical diagnosis or treatment. In White , the Cour t held tha t the pros ecution need not pr oduce the declar ant child victim and the trial court need not find her unavailable bef ore her out-of-court statements to her baby sitter, mother, the investigating police officer, a nd 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 prof fered hearsay

has suff icient g uarante es of re liability

to come wi

thin firmly rooted exceptions to the hear say rule, the c onfrontation clause was satisfied. White , 502 U.S. at 357, 116 L. Ed. 2d at 860, 112 S. Ct. at 743. Although the Crawford Court subse quently questioned White , it did so in t he context of acknowledgi ng that White' s holding

admitting

a child victim's statemen t to an inve stigatin

g police office r as a spontaneous

declar ation was in tension

with the Court's faithful adherence to the F ramers' understanding that testimonial statements of witnesses absent from trial were admissible only where the declarant was unava ilable and the defendant had a prior opportunity to cross-examine. Crawford , 541 U.S. a t 58 n.8, 15 8 L. E d. 2d at 19 7 n.8, 124 S. Ct. at 1368 n.8. Further, the Crawford Court stated that it need not resolve whether White 's hol ding,1-03-0551

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which rejected the academics' proposal to apply the conf rontation clause only to testimonial statements and leave the remainder to reg ulation by hearsa

y law, survived the Crawford decision. Crawford , 541 U.S. at 61, 158 L. Ed. 2d at 198-99, 124 S. Ct. at 1370. I n White , the Court did not reach the issue of medical personnel' s testimony rega rding the perpetrator's identity , and Crawford 's criticism of White did not specifically addr ess more than White 's admis sion of the child's statemen t to the investigating police officer. The confrontation clause errors in this case we re not harmless bey

ond a reasonable doubt. See Chapman v . Califor

nia , 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 cour t noted three approaches for measuring error under Chapman : (1) focusing on the error to determine w hether 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 evide nce is cumulative or merely duplicates properly

admitted evidence. Here, P.F. provided testimony describing G.F.'s outcry

that respondent had "juiced" her. The evid ence al so include d Dr. L orand' s phy sical fin dings an d expert op inion that G .F. was s exually 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. re canted her allegations against respondent. The testimonial statements made by G.F. to Detective Dwy

er, 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 signific antly more detail about the assault than did P.F.'s testimony re garding G.F.' s statements. There is a reasonable probability the admission of the testimonial evidence contributed to the adjudication of delinquency . In addition, the evide nce in this case wa s not overwh elmi ng. Retrial is not barr ed on doub le jeopa

rdy ground s, becau se the ev

idence was suffic ient 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 c rime beyond a r

easonable doubt. People v. Olivera , 164 I ll. 2d 382, 3 93 (1995) . We consid er all the evidenc e introdu

ced at the origi

nal trial ,1-03-0551

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even if erroneously

admitted. Olivera , 164 Ill . 2d at 393-9 4. P. F.'s te stim ony regardi ng G.F. 's accusations against respondent was consistent with Dr. L orand's findings that G.F. sustained sexual abuse. I n addition , P.F. re

butted De nise T.' s testimony

that G.F . recan

ted her a ccusati ons aga

inst respondent. Theref ore, we revers e the judg

ment of the

circuit c ourt of Cook County and rema nd this ca use for pro ceedin gs cons isten t wit h thi s opi nion . Accor dingl y, pursua nt to the Illi nois Supre me Cou rt's supervisory orde

r noted at the outset of this opinion, we clarify again that we vacate our January 22, 2008 orde

r in this ma

tter and reinstat e our Sep tember 7 , 2007 opin ion with the

modifica tion that th

is cause is to be remanded to the circuit court for a hearing on the State's claim of doctrine of forfeiture by w rongdo ing. Thi s hearin

g is to be held withi

n 45 day s of the e ntry of the ins tant opinion. Beca use we have concluded that remand to the circ uit court for a hearing on the State' s claim of forfeiture by wrongd oing is a ppropria te, we fu rther pr ovide, as require d by

the super visory order of the I llinois Supreme Court, the following direction to the circuit court on remand, pursua nt to People v. Stechly, 225 Ill. 2d 246 (2007): 1. On remand, a fa ctual determinat

ion should b e made a s to whethe r 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 ther e was such a forfe iture; 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 requir e that a status report be filed by both parties as to the progre ss of thes e heari

ngs. Tha t is, the pa

rties ar e requir ed to file with our c ourt a sta

tus repor t within 14 days following

the conclusion of the circuit court's hearing and its factual determination regarding1-03-0551

-22-

the issue of forf eiture by w

rongdo ing to inf

orm our c ourt of th e subsequ ent actio ns both par

ties will take p ursua nt to the ci rcuit court 's ruli ng. Reverse d and remanded, w ith directions. GALL AGHER, J., c oncurs. O'MARA FROSSARD, J., specia

lly c oncurs. JUS TICE O’M ARA FR OSSA RD, s pecial ly concurr ing: 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 te stimony of those who heard a child’s statement describing any

complaint, matter, or detail pertaining to the criminal offense r egardless of the testimonial nature of the child's statement. Section 115-10 was desig ned to address the difficulties inherent in prosecuting cases involving child victims. Howeve r, such prosecutions are now required to be undertaken consistent with the Crawford limitations

as artic ulated by the Unite d 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 confr ontation clause and the relationship of that clause to various rules of e vidence 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 unavaila ble to test ify at trial and

was previously subjected to cross-examination. Crawford , 541 U.S. a

t 67-68, 15 8 L. E d. 2d at 20 2-03, 124 S. Ct. at 137 3-74. However, w here the statemen t is not "tes timonial" in nature , the conf rontation clause i s not implic ated and the state ment's a dmissibility is determined by apply

ing 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 se ction 115-10 conflicts with the holding in Crawford

.1-03-0551

-23-

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 ame

ndment as

indicate d by

the follow

ing: "Where testimonia

l evidenc e is at issu

e, howev er, the Si

xth Amendment demands what the common law required:

unav aila bilit y a nd a p rior oppor tunit y f or cr oss-e xamina tion. We leave for another day

any eff ort to spell out a comprehensive definitio n of 'testim onial.' " Crawford , 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. While Crawford

did not provide a comprehen sive def inition of “

testimonia

l,” it did recogni ze th e foll owing:

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

hearing , before

a gran d jury , or at a former trial; and to police interrogations. These a re the modern practices with closest kinship to the abuses at which the Confrontat ion Claus e 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 fail ing to pr

ovide a more compr

ehensive definition of a tes timonial sta tement: "[T]housands of federal prosecutors and *** tens of thousands of state prosecutors need answers as to what bey ond the specific kinds of ‘testimony’ the Court lists *** is covered by the new rule. They need them now, not months or yea rs from now. Rules of criminal

ev id en ce ar e a pp li ed ev er y da y in co ur ts th ro ug ho ut th e c ou nt ry, and parties s hould not be left in t he dark in th is manner."1-03-0551

-24- 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 significa nce of the concerns expressed by the Chief Justice. Crawford

require s testimoni al evide nce of a n unavail able witness to be previousl y 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

re qu ir e p re vi ou s c ro ss -e xa mi na ti on of th e t es ti mo ni al ev id en ce as a p re re qu is it e f or ad mi ss ib il it y. In I llinois there are hundreds of cases every year involving

child victims where a child makes statemen ts to invest

igators, DCFS workers, a nd medica

l personnel relie d upon by the State to prosecu te the all eged o ffende

r. Those statemen ts are se ldom, if ever, pre viously subjecte d to cross-examination as now required under the Crawford standards for admissibility. The cas e law and the leg al litera ture re flect tha

t most ofte

n child victims, due to

their tender y ears, a re unava ilable to t estify at trial. The prob lem prese nted by child vic tims of cr

ime who are unavailable to testify due to their tender age was re solved by section 115-10, which allows in e

vidence childre n’s state ments to inv estiga

tors, DCF S workers, or medi cal per sonnel, without prior cross-examination, providing they are found reliable by

a judge in a pretrial hearing. That approach wa s specifically r ejected in Crawford : "Admitting statements deemed reliable by a judge is fundame ntally at odds wit

h the rig ht of conf rontation ." Craw ford, 541 U.S. at 61, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370. Under Crawford , if th e unav ailab le chi ld's statemen t is testimon

ial, then the state ment is ina

dmissible u

nless the statemen t was pre viously cross-examined. Since Crawford

was decided on March 8, 2004, a small number of ca ses from other states have attempted to provide a definition of a testimonial statement. I n 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 governm ent summo ns a citiz en to be a wit ness." 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 bea ring witness, and1-03-0551

-25-

that his wo rds will i mpact furth er legal proceedin gs." Moscat , 3 Misc. 3d at 746, 777 N.Y.S.2d at 880. In People v. Sisavath , 118 Cal. A pp. 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 re sponse to structured police questioning. Sisavath , 118 Cal. A pp. 4th at 1402, 13 Cal. Rptr. 3d at 758. Sisavath further found a victim's s tatement to a fore nsic inter view spe cialist to be testimonial. The court noted that the victim's statement was made under cir cumstances which wou

ld lead a n objecti ve witnes s reasonably

to believ e the sta

tement wo

uld be use d at trial

. Sisavath , 118 Cal. A

pp. 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 victi ms to socia l work ers wer e "test imon ial" an d thei r admi ssio n in ev idenc e viol ated d efenda nt's sixth amendment right to confrontation. In support of that finding, the court in Snowdennoted that the c hildren w ere inte

rviewed by a social worker for the expr ess purpo se of dev eloping 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 L ewis is whether those statements were testimonial. DCFS is a legislatively created agency

responsible for protecting and promoting the welfar e of the children of I llinois. In re C .J. , 166 Ill. 2d 264, 268 (1995). Crimes against children implicate both criminal and social welf are 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 e xamination of the testimony provided by DCFS investig ator Lewis and the totality of the circumstances surrounding the statement. Lewis testified that she was an investig ator with the division of child protection for DCFS. She was conducting "an investiga tion of child sex abuse with the victim by the name of1-03-0551

-26-

G.F." She received the initial report in Marc h 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 qua lify her as a victim – an

allege d victim." That test imony by D CFS invest

igator Lewis could be considered as demonstrating the involvement of a government officer in the production of testimony with an ey

e toward trial. In re

viewing such testimony w hich had not been previously subjected to cr oss-examination, Crawford noted "Involvement of government officers in the production of testimony with an ey e 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 Le

wis found that G.F. understood the difference be tween telling the truth and telling a lie, G.F. spoke to DCFS investigator L ewis in detail about the incident involving the minor-respondent T.T. The substan ce of the infor mation pro vided by G.F. in her con versation w ith DCFS investigator Lewis re flected that the declarant G.F. wa s bearing witness against the minorrespondent and that information was genera ted with an eye

toward prosecution. Due to the tender a ge of G .F., she

may not have f

ully apprec iated the

fact tha t she was b earing

witness against the minor-respondent. That fact is not particular ly significa

nt 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. 2 d at 202, 12 4 S. Ct. at 1373. As pre viously noted, G. F. was never cross-examined. Based on the to tality of the circum stances, th e statement s made by G.F. to DCFS investigator Lewis we

re testimonial. A review of the testimony provided by DCFS investig ator Lewis toget

her with t he totalit y of the circ umstance s in the context of the confron tation cla use

an al ysi s a rt ic ul at ed by Crawford demonstr

ated tha t G.F.’s statemen ts to DCFS in

vestiga tor L ewis were inadmissible testimonial evidence. Howeve r, as re cognize d by

this opinion , not all inf

ormation p

rovided t o 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.1-03-0551

-27-

The court rejected the defenda nt’s argument that such a call was testimonial under Crawford , recognizing th at such a call is the "electr onically augmented equ ivalent of a l oud 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 confron tation cla use anal ysi s. 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 flexibi lity in their deve lopment o f hearsay law." Crawford , 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at

1374. The h oldin

g of the in stant

case shoul d be n arrowly

cons true d in th e con

text of the facts presented and the principles ar ticulated in Crawford

.1-03-0551

-28- __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

(Front Sheet to

be Attached to Each Case)

_________________________________________________________________________________________________________________________ Please use

the follow

ing form In re T.T., a Minor

(The Peo ple of the State of I llinois, 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 pres iding.

__________________________________________________________________________________________________________________________ Indicate i f attorne

y repre sents A

PPELLANT S or APPELL EES and include

attorney 's of c ounsel. Indic ate the w ord or FOR APP ELLANTS NONE if not represe

nted. John Do e, of Chicago
For APPELLE

ES, : APPELLA NT: OFFICE OF THE STAT E APPELLA

TE DEFENDER, Chicag o, IL Micha

el J. Pellet

ier, Deputy

Defende r; Maya Szilak, Assista

nt Appellate Defender

_________________________________ __ Smith and Smith of Chicago , APPELLEE: STATE'S AT TORNEY, COUNTY OF COOK, Chicago, IL Richard A. Devine, State's Attorney ; Renee Gold farb , Jan et P ower s Do yle, Eri cka Gr aun ke, As sis tan t St ate' s Att orn eys

__________________________________________________________________________________________________ ( Joseph Brown, of counsel ) Add attorne

ys for thirdparty a ppellants a

nd/or appellees.