State v. Snowden

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State v. Snowden, No. 42, Sept. Term 2004. Opinion by Harrell, J. CRIMINAL PROCEDURE - EVIDENCE - CONFRONTATION CLAUSE - TENDER YEARS HEARSAY EXCEPTION - WHEN A CHIL D ABU SE VICT IM S STATEMENT TO A HEALTH OR SOCIAL WORK PROFESSIONAL IS TESTIMONIAL, THAT STATEMENT MAY ONLY BE ADMITTED THROUGH THE HEALTH OR SOCIA L WORK PROFESSIONAL IF THE DECLARANT IS UNAVAILABLE AND THE DEFENDANT HAD A PRIOR OPPORTUNITY TO CROSS-EXAMINE THE DECLARANT Defendant was convicted of child abuse and sexual offenses based largely on a social worker s testimony concerning statements that the child victims made to her during interviews with each of the children. The testimony was admitted by the trial court, over the Defendant s objection, under Md. Code (2001), § 11-304 of the Criminal Procedure Article, which creates a hearsay exception for statements of certain child victim s, when m ade to enumerated health or social work professionals, and when the trial judge determines that the hearsay statements possess particularized guarantees of trustworthiness. Under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), however, when an out-of-court statement is testimonial, that statement may not be admitted unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the dec larant. A statement is testimonial under Crawford if, among other things, it is made during a police interrogation or under circumstances that would lead an objective witness to reasonably believe that his or her statement would be used at a later trial. In this case, the child victims were interviewe d by a social w orker for th e purpose of eliciting state ments about their allegations of abuse against the d efendan t. The social work er, at the time of the interviews, was participating in a joint investigation of the Defendant, whose alleged abuse of the victims was the subject of a police report su pplied to the soc ial wor ker. The formal style of the questioning, the nature of the interview facility, and the presence of a police officer during the interview all led to the conclusion that the children s interviews with the social worker were the f unctional e quivalent o f a police inte rrogation. T he children, a s demonstrated throug h their re sponse s, also actually were awa re of the po tential of their statements to be used at a later trial. An y therapeutic m otive or eff ect of the inte rviews is irrelevant, in terms of p roper Co nfrontation Clause an alysis, to the overarching investigatory purpose of the interview s, and th erefore testimo nial natu re, of the stateme nts elicite d. Furthermore, when a hearsay declarant is available to testify, a defendant does not waive his Confrontation Clause objections if he does not object to the State s failure to call the avai lable decl aran t to th e stand to testif y. IN THE COURT OF APPEALS OF MARYLAND No. 42 September Term, 2004 STATE OF MARYLAND v. MICHAEL CONWAY SNOW DEN Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: February 7, 2005 In this case w e consider w hether statem ents made by child abuse victims to a social worker, thou gh hearsay, ma y continue to be admitted at a criminal trial through the social worker under Maryland s tender years statute, Md. Code (2001), § 11-304 of the Criminal Procedure Article, in light of the U. S. Supreme Court s ruling in Crawford v. Washington, 541 U.S . 36, 124 S . Ct. 1354, 1 58 L. Ed . 2d 177 (2 004). We shall hold tha t they may not. I. The events giving rise to this case began in late January 2002, when then 10 year old Tiffany P., 10 year old Megan H., and 8 year old Raven H. approached Tiffany s mother, Vicki P., and told her that the man the girls knew as Uncle Mike, Michael C onway Snowden, had touched them in an inappropriate manner. 1 Vicki P., who pro vided afterschool care in her home for the three girls, recently had allowed Snowden and his girlfriend to live in her residence because they were experiencing financial difficulties. Vicki P. testified that, upon hearing the allegations from the children, she called Snowden home from his work and, with Tiffany present, confronted him. Snowden denied the allegations. Soon after, however, Vicki P. called the polic e. A joint investigation by the Montgom ery County Police Department and the Child Protective Services for Montgo mery 1 The three girls initially learned of each other s exp eriences w ith Snow den wh en, in the course of playing togeth er, Raven told Tiffany that Snowden had touched her on her vaginal area. Tiffany told Raven that Snowden had done the same to he r, and the tw o girls then spoke with Megan, who also shared that Snowden had touched her inappropriately. The three girls then informed Tiff any s older sister, LaShawna, of the inappropriate touchings. LaSh awna told the g irls that th ey defin itely need ed to tell th eir moth er. County resulted.2 On 4 February 20 02, at the req uest of D etective Jack ie Davey, the children were interviewed by Amira Abdul-Wakeel, a sexual abuse investigator for the Montgom ery County Department of Health and Human Services.3 With Detective Davey present, Wakeel separately inter view ed V icki P ., Tif fany, Megan, and Raven at the Juvenile Assessment Center in Rockville. At the beginning of each interview, Wakeel asked each girl whether she knew why she was being interviewed. Each responded that she was aware that she was being interviewed as a result of her accusations against Snowden.4 2 The collaboration between the police and Child Protective Services was occasioned by the familial relations between the alleged abuser, Snowden, and one of the victims. Snowden was Vicki P. s uncle, and thus Tiffany s great uncle. 3 Wakeel s job title was S ocial Wo rker II. She d escribed herself during her trial testimony as a sexual abuse investigator. At the time of trial, Wakeel had been in her position with M ontgom ery County for a pproxim ately one year, and had testified in Montgom ery County courts on four separate occasions in ex parte proceedings involvin g children. She testified here that her job responsibilities were to assess [the] safety of children in sexual abuse cases and neglect cases. She explained that this involved a structured interview procedure, and described her interview style as pleasant, yet busin esslike. Prior to her employment with Montgomery County, Wakeel was employed as a child ad voc acy social worker in Philade lphia, where she acted in the role of court representative, testifying in uncontested child welfare petitions. Wakeel also had prior experience as a social worker for the Philadelphia Department of Human Services, where she handled 40 to 60 child dependency cases per month, testifying in those cases three or four times per week. Wakeel stated that she also had extensive training in sexual abuse investigation, forensic interviewing, and sexual abuse interviewing. 4 Wakeel testified during the State s direct examination as to the girls responses during the interviews: (contin ued...) 2 During her interview, Tiffany stated that, on one occasion, Snowden entered her bedroom purportedly to return a telephone . Snowd en began to touch he r on her bre asts and on her vagina, and then touched her buttocks as she left the room. Megan told Wakeel that Snowden approached her as she was coming down the stairs one day in the home. In the course of attempting to pick her up, Snowden in tentionally touched her chest and vaginal area. Megan told Wakeel that she was not particularly close 4 (...continued) Q. How did you begin talking to [Tiffany] after you went through your preliminaries? A. I asked her if she knew why she was here. Q. W hat d id sh e say? A. She said, yes. Q. Okay, did she say anything else? A. She said, yes, because of Uncle Mike. Q. . . . What did she say about Uncle Mike? A. She stated that Uncle Mike had been touching her inap prop riate ly. Q. Did she a ctually use the w ord inapp ropriate ? W hat did Tiff any sa y? A. Initially, she said that he was touching h er. *** Q. What did you do af ter you reviewed the gen der-specific diagrams? A. I asked [Megan], did she know why she was here. Q. A nd w hat d id sh e say? A. Y eah, be cause a man to uched me ina pprop riately. *** Q. What did you do then after you asked [Raven] some preliminary questions? A. I asked her if she knew why she was here. Q. A nd w hat d id sh e say? A. B ecause Mike [Snow den] to uched us. 3 to Snow den, and only knew him because he was staying at her babysitter s house. Megan also state d that S nowd en wo uld hit h er a lot . . . on the fac e and o n the arm s. Raven told Wak eel that, one d ay while she w as watch ing television in Vicki P . s house, Snowden came into the room and sat down o n the bed with her. Snowden pulled her arm so that she became seated between Snowden s legs. Snowden then put his arms around her and placed his hands in her vaginal area and rubbed his private area against her buttocks. On 14 February 2002, Snowden was arrested on a warrant issued based on information obtained during Wakeel s inter view s wit h the child ren. W hile i n police c usto dy, Snowden denied the allegations of child abuse. At the suggestion of the police, however, he wrote a letter of apology to the girls, expressing his desire for the girls forgiveness for what he cha racterize d as acc idental to uching s. On 16 May 2002, Snowden was indicted5 on one count of child abuse 6 and six co unts 5 The charges consisted of one count of child abuse against Tiffany P. in violation of Md. Code (2002), § 3-601 of the Criminal Law Article (formerly Md. Code (1957, 1996 Repl. V ol., 2001 C um. Sup p.), Art. 27, § 35C), three counts of third degree sexual offense against Tiffany P. in violation of Md. Code (2002), § 3-307 of the Crimin al Law A rticle (formerly Md. Code (1957, 1996 Repl. Vol.), Art. 27, § 464B), one count of third degree sexual offense against Raven H., and two counts of third degree sexual offense against Megan H. 6 Snowden was charged under Md. Code (1957, 1996 R epl. Vol., 2001 Cum . Supp.), Art. 27, § 35C (recodified at Md. Code (2002), § 3-601 of the Criminal Law Article) which provides as follows: § 35C. Causing abuse to child. (contin ued...) 4 of third degree sexual offense.7 Immedia tely prior to trial, the State filed a motion to invoke 6 (...continued) (a) Definitions. (1) In this section the following words have the meanings indicated. (2) Abu se mean s: (i) The sustaining of physical injury by a child as a result of cruel or inhumane treatment or as a result of a malicious act by any parent or other person w ho has perman ent or temporary care or custody or resp onsibility for sup ervision of a child, or by an y household or family member, under circumstances that indicate that the child s health or welfare is harmed or threatened thereby; or (ii) Sexual ab use of a ch ild, whethe r physical injuries a re sustained or not. (3) Child means any individual under the age of 18 years. (4) Family member means a relative of a child by blood, adoption, or marriage. (5) Household member means a person who lives with or is a regular presence in a home of a child at the time of the alleged abuse. (6)(i) Sexual abuse means any act that involves sexual molestation or exploitation of a child by a parent or other person who has permanent or temporary care or custody or responsibility for supervision of a child, or by any hou sehold or family mem ber. (ii) Sexual abuse includes, but is not limited to: 1. Incest, rape, or sexual offense in any degree; 2. Sodomy; and 3. Unnatural or perverted sexual practices. (b) Violation constitutes felony; penalty; sentencing. (1) A parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child or a househo ld or family member who causes abuse to the child is guilty of a felony and on conviction is subject to imprisonment in the penitentiary for not more than 15 years. (2) If the violation results in the d eath of the victim, the pe rson is guilty of a felony and upon conviction is subject to imprisonment for not more than 30 years. (3) The sentence imposed under this section may be imposed separate from and consecutive to or concurrent with a sentence for any offense based upon the act or acts establishing the abuse. 7 Snowden was ch arged u nder M d. Cod e (1957 , 1996 R epl. Vol.), Art. 27, § 464B (recodified at Md. Code (2002), § 3-307 of the Criminal Law Article), which provides as follows: § 464B. Third degree sexual offense. (a) Elements of offense. A person is guilty of a sexual offense in the third degree if the person engages in: (contin ued...) 5 Md. Code (2001), § 11-304 of the Criminal Procedure Article, otherwise known as Maryland s tender years sta tute. The statutory scheme of § 11-304, if properly invoked and applicable, allows the prosecution to substitute a health or social work professional s testimony for that of the children if, among other things, the trial court interviews the children in a closed hea ring and m akes a find ing on the re cord that the victims statem ents possessed specific guarantees of trustworthiness. The trial judge here examined the children, and ruled that Wakeel s testimony of their accounts as told to her satisfied the 7 (...continued) (1) Sexual contact with another person against the will and without the consent of the other person, and: (i) Employs or displays a dangerous or deadly weapon or an article which the other person reasonably concludes is a dangerous or deadly weapon; or (ii) Inflicts suffocation, strangulation, disfigurem ent or serious physical injury upon the other person or upon anyone else in the course of committing that offense; or (iii) Threaten s or places th e victim in fear that the v ictim or any per son know n to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury, or kidnapping; or (iv) Commits the offense aided and abetted by one or more other persons; or (2) Sexual contact with anoth er person w ho is mentally defective, mentally incapacitated, or physically helpless, and the person kn ows or sh ould reaso nably know the other pe rson is mentally defective, mentally incapacitated, or physically helpless; or (3) Sexual contact with another person who is under 14 years of age and the person performing the sexual contact is four or more years older than the victim; or (4) A sexual act with another person who is 14 or 15 years of age and the person performing the sexual act is at least 21 years of age; or (5) Vaginal intercourse with another person who is 14 or 15 years of age and the person performing the act is at least 21 years of age. (b) Penalty. Any perso n violating th e provisions of this section is guilty of a felony and upon conviction is subject to imprisonment for a period of not more than 10 years. 6 requirements of the statute. Snowden objected to the admittance of Wakeel s testimony, arguing that its allowance violated his Sixth Amendment right to confrontation guaranteed by the federal Constitution and the Maryland Declaration of Rights. The trial judge overruled Snowden s objection. The children, who the State represented were present, were allow ed to depart an d did not testif y. Based largely on W akeel s testim ony, Snow den wa s found g uilty by the trial judge on all counts.8 Snowd en timely appe aled to the Court of Special Appeals. Oral argument in the intermediate appella te court w as held on 5 F ebruar y 2004. Approxima tely one month later, on 8 March 2004, the U. S. Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2 004), wh ich held ge nerally that testimo nial statemen ts may not be adm itted in eviden ce through non-d eclarant w itnesses unle ss the declara nt is unavailab le and there is a prior opportunity for cross-examination. On 5 April 2004, Maryland s intermediate appellate court filed its opinion in Snow den s app eal and he ld that, 8 The trial court imposed the following sentenc es: Count I (child abuse) - 1 0 years imprisonm ent, five years suspended with credit for time served; Count II (third degree sexual offense) three years to run co ncurrent with Cou nt I; Count III (same) - three years to run concurrent with Co unt I and II; C ount IV (s ame) - three years to run co ncurrent w ith Counts I through III; Count V (same) - five years, all but 18 months suspe nded, con secutive to Counts I through IV; Count VI (same) - five years, all but 18 months suspended, consecutive to Counts I through V; Count VII (same) - 5 years, all but 18 months suspended, consecutive to Counts I through V, concurrent with Count VI. The trial judge also sentenced Snowden, upon release, to 5 years o f supervise d probation , subject to spe cial condition s including requiring Snowden to register as a sex offender, and orderin g him to ha ve no con tact with the families of the three children and no unsupervised contact with children under the age of 16. 7 in light of Crawford, Wakeel s testimony violated Snowden s right to confrontation because the children were available to testify and their statements during the interview with Wakeel were sufficiently testim onial in nature. Snowd en v. State, 156 Md. App. 139, 157, 846 A.2d 36, 47 ( 2004) . The State soug ht review in this Court by petition for writ of certiorari. We granted its petition, 381 Md. 677, 851 A.2d 596 (2004), in order to decide the following question, whi ch w e hav e rep hras ed fo r clar ity: Did the Court of Specia l Appeals err in holding that the introduction of hearsay evidence, pursuant to Md. Code (2001), § 11-304 of the Criminal Procedure Article, violated Snowd en s right to confrontation under the Sixth Amendment to the United States Constitution in light of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 , 158 L. Ed. 2d 17 7 (2004)? II. The Confro ntation Clau se of the U . S. Constitu tion9 provides that [i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. U.S. Const. amend. VI. Although the Confrontation Clause appears to guarantee a defendant the right to confront his or her accusers face-to-face at trial, the Supreme Court has 9 The protections of the Confrontation Clause are applicable to the States through the Fourte enth A mend ment. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). Article 21 of the M aryland Declaration of R ights (MDR ) is Maryland s counterpart to the Confrontation Clause and provides that in all criminal prosecutions, every man h ath a right . . . to be confronted with the witnesses against him. This Court often has construed the Confro ntation Clau se and A rticle 21 of the MDR to be in pari mate ria. Simmo ns v. State, 333 Md. 547, 555 n.1, 636 A.2d 463, 467 n.1 (1994) (citing Craig v. Sta te, 322 Md. 418, 430, 588 A.2d 328, 334 (1991 )). 8 stopped short of proclaiming this righ t absolu te. See Ma ryland v. C raig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990) (holding that the Confrontation Clause is not violated when the State pre sents the testim ony of a child victim throu gh the use of closed c ircuit television). In Ohio v. R oberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), for example, the Supreme Court considered the impact of the Confrontation Clause on the admissibility of h earsay declara tions in crimin al trials. The Su preme C ourt held tha t when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even the n, his stateme nt is admissib le only if it bear s ade quate in dicia of re liabi lity. Reliability can be inferred without more in a case where th e evidenc e falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absen t a showing of p articularized guarantees of trustworthiness. Id. at 66, 10 0 S. Ct. a t 2539, 6 5 L. Ed . 2d 597 . Following Roberts, many States e nacted statu tes allowing the admission into evidence of certain hearsay statements in criminal trials. In 1988, Maryland en acted its tender years statute, first codified at Md. Code (1973, 1989 Repl. Vol.), § 9-103.1 of the Courts and Judicial Proceedings Article.10 The tender years statute allows a court to admit into evidence in a juvenile proceeding or criminal trial hearsay statements by victims11 of child abuse if the 10 The statute was moved in 1996 to Md. Code (1957, 1996 Repl. Vol.), Art. 27 § 775, and most recen tly recodified in 2001 at its current location, Md. Code (2001), § 11-304 of the Criminal Procedure Article. 11 The statute requires that the victim declarant be under the age of 12. 9 statements were made to certain health or social wo rk profess ionals 12 in the cours e of their professions. Md. Cod e (2001), § 11-304 of the Criminal Procedure Article. The legislation was enacted in response to concerns that child abuse and sexual offenses were not being prosecuted adequately due to many child victims inability to testify as a result of their young age or frag ile emo tional sta te. See Letter from J. Joseph Curran, Jr., Attorney General of Maryland to the Honorable Walter Baker, Chairman of the Senate Judicial Proceedings Committee (Senate Bill 66 of 1998) 1 (3 February 1988) (on file at Maryland State Law Libr ary) (finding that a hearsay exception is necessary in cases where the age or emotional state of the child precludes the child fro m testifying ). T he statute eliminated this concern by allowing the evidence to be presented by someone other than the vulnerable or legally incompetent child. To satisfy the constitutional requirements of Roberts, the Maryland Legislature imposed safeguard s in the tende r years statute intended to insure that any admitted statement possessed particularized guarantees of trustworthiness. Md. Code (2001), § 11-304(d)-(f) 12 Section 11-304(c) provides: (c) Recipients and offerors of statement. An out of court statement may be admissible under this section on ly if the statemen t was ma de to and is offered by a person acting law fully in the course of the person s profession when the statement was made who is: (1) a physician; (2) a psycholo gist; (3) a nurse; (4) a social worker; or (5) a principal, vic e principal, tea cher, or scho ol counse lor at a public o r private preschoo l, elementary sch ool, or secon dary school. 10 of the Crimin al Procedu re Article. First, the statute requires that, if the child does not testify at trial, the State must produce corroborative evidence demonstrating that the defendant had the opportunity to commit the alleged abuse.13 Id. § 11-304(d)(2). The statute also requires that the trial court conduct a hearing to determine whether the proposed statements possess particularized guarantees of trustworthiness. Id. § 11-304 (e)-(g). The s tatute contains a list of non-exclusive factors that the judge must consider in making this determination.14 Id. § 11-304(e)(2). The judge must examine the child victim in chambers, clos ed to all except the judge, the victim, the victim s attorney, and one attorney each for the defendant 13 In this case, the trial judge found that the credibility of the children and Tiffany s mother, combined with Snowden s letter of apology admitting to touching the girls, satisfied the requ iremen t of corr oborat ive evid ence. 14 These factors are: (i) the child victim s personal k nowled ge of the e vent; (ii) the certainty that the statement was made; (iii) any apparent motive to fabricate or exhibit partiality by the child victim, including interest, bias, corruption, or coercion; (iv) whether the statement was spontaneous or directly responsive to questions; (v) the timing of the statem ent; (vi) wheth er the child v ictim s young a ge make s it unlikely that the c hild victim fabricated the statement that represents a graphic, detailed account beyond the child victim s expected knowledge and experience; (vii) the appropriateness of the terminology of the statement to the child victim s age; (viii) the nature and dura tion of the a buse and neglect; (ix) the inner c onsistency an d coheren ce of the sta tement; (x) wheth er the child v ictim was s uffering p ain or distress w hen mak ing the statem ent; (xi) whether extrinsic evidence exists to show the defendant or child respondent had an opportun ity to commit the act comp lained of in the child victim s statement; (xii) whether the statement was suggested by the use of leading questions; and (xiii) the credib ility of the person testifying abou t the statemen t. Md. Code (2001), § 11-304(e)(2) of the Criminal Procedure Article. 11 and the pro secutio n. Id. § 11-304(g). The judge must then make a finding, on the record, as to the spec ific guaran tees of trustw orthiness that are in the statement. Id. § 11304(f)(1). The defend ant also has an oppo rtunity to depose the health or social w ork profes sional w hose te stimon y the State intends to offe r. Id. § 11-304(d)(4). In the original enactment of the s tatute, the statements of the health or soc ial work professional could be admitted only if the child was available and testified at the criminal proceeding or was unavailable due to death, absence from the jurisdiction, serious physical disability, or inability to communicate due to severe emotional distress. Md. Code (1973, 1989 Repl. Vo l.), § 9-103.1(c )(2)(i) of the Courts and Judicial Proceedings Article. In 1994, the Legislature amende d the statute so that it could be utilized regard less of wh ether the ch ild was available to testify. 1994 Md. Laws, Chap. 169, § 1. In Prince v. S tate, 131 Md. App. 296, 748 A.2d 1078 (2000), the Maryland tender years statute was found constitutional by the Court of Special Appeals under the then-extant Supreme Court Confrontation Clause jurisprudence, principally relying on Roberts. On 8 March 2004, the Supreme Court fundamentally altered its Confrontation Clause jurisprudence when it decided Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (20 04). In Crawford, the defendant, Michael Crawford, had been found g uilty of assault b ased on a tape-r ecorde d statem ent by his w ife mad e to the p olice. Id. at __, 124 S. Ct. at 1357-5 8, 158 L. E d. 2d 177 . Crawfo rd s wife w as unava ilable to testify at trial. Crawford objected to the use of h is wife s state ment, argu ing that the ad mission of her 12 statement without any ability to cross-examine her violated his rights under the Confro ntation Clause. Id. at __, 124 S. Ct. at 1358, 158 L. Ed. 2d 17 7. The trial co urt admitted into evidence her recorded statement, based on a recognized hearsay exception, even though the defendant did not have an op portunity to cross-examine her. Id. at __, 124 S. Ct. at 1357-58, 158 L . Ed. 2d 177. On direct appe al, the Washington Court of Appeals reversed Crawford s conviction, finding that his wife s statements, under a Roberts analysis, did not bear particularized guarantees of trustw orthine ss. Id. at __, 12 4 S. Ct. a t 1358, 1 58 L. E d. 2d 17 7. The Washington Supreme Court, however, reinstated Crawford s conviction, relying also on a Roberts analysis, but con cluding tha t his wife s sta tements w ere indeed sufficiently trustwo rthy. Id. at __, 124 S. Ct. at 1358-59, 158 L. Ed. 2d 177 The Supreme Court in Crawford held that the introduction of the wife s recorded statements violated the defendant s rights under the Conf rontatio n Clau se. Id. at __, 124 S. Ct. at 1374, 158 L. Ed. 2d 177. After tracing the origins of the Clause, the Court concluded that the Roberts test was fundamentally incompatible with the Framers vision and interpretation of the Clause . Id. at __, 124 S. Ct. at 1369-74, 158 L. Ed. 2d 177. Th e Court instead held that the Confrontation Clause mandates that testimonial statements may not be offered into eviden ce in a crimin al trial unless tw o requirem ents are satisfie d: 1) the declarant/witness is unav ailable, a nd 2) the defendant had a prior opportunity to crossexam ine the d eclaran t/witnes s. Id. at __, 124 S. Ct. at 1374, 158 L. Ed. 2d 177. 13 The Suprem e Court found fault with th e perceive d unpred ictability and subje ctivity of the indicia of reliability test in Roberts. In overruling Roberts, the Court stated: Admitting statements deemed reliable by a judg e is fundam entally at odds with the right of confrontation. To be sure, the Clause s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular m anner: by testing in the crucible of cross-examination . The Clause thus re flects a judgmen t, not only about the desirability of reliab le evidence (a point on which there could be little dissent), but about how reliability can best be determined. Id. at __, 124 S. Ct. at 1370, 158 L. Ed. 2d 177. Crawford also drew a sharp distinction between those out of court statements that may be classified as testimon ial and tho se that may no t. Id. at __, 124 S. Ct. at 1363-65, 158 L. Ed. 2d 177. Finding that the principal evil at which the Confrontation Clause was directed was . . . [the] use of ex parte examina tions as evid ence aga inst the accused, the Court rejected the notion th at the Claus e merely applied to in-co urt testim ony. Id. at __, 124 S. C t. at 1363- 64, 158 L. Ed. 2 d 177. I nstead , the Clause s mention of witnesses against the accused was interpreted to include, at the very least, th ose w ho be ar testim ony. Id. at __, 124 S. Ct. at 1364, 158 L. Ed. 2d 177 (citations omitted). Therefore, the Court found that when an out-of-court statement qualifies as testimonial, the Constitution cond itions its 14 admission on the una vailability of the w itness and a prior opportunity to cross-examine.15 Id. at __, 124 S. Ct. at 1365-67, 158 L. Ed. 2d 177. 15 The Court held that, where a statemen t is nontestimo nial, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law as does Roberts , and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Crawford, 541 U.S. at __, 124 S. Ct. at 1374, 158 L. Ed. 2d 177. Although Chief Justice Rehnquist, in a concurring opinion, argued that the Framers contemp lated that the C onfrontatio n Clause w ould not b e implicated by the inclusion of testimonial statements through certain hearsay exceptions, the Crawford majority found scant evidence that such testimonial statements would have been admitted in a criminal case at the time of the a doptio n of the Sixth A mend ment. Id. at __, 124 S. Ct. at 1367, 158 L. Ed. 2d 177. The majority found that most of the firmly-rooted hearsay exceptions, such as business records, or statements made in the furtherance of a conspirac y, were inhere ntly nontes timonia l and, thu s, their inc lusion w ould no t implica te the C lause. Id. In so holding, the Crawford Court cast doubt on its holding in White v. Illinois , 502 U.S. 346, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992), which involved the admittance of statements by a child victim to an investigating officer under the spontaneous declaration exception to the he arsay rule . Crawford, 541 U.S. at __, 124 S. Ct. at 1368 n.8, 158 L. Ed. 2d 177. T he Crawford Court found that the only question resolved in White was w hether the Confrontation Clause imposed an unavailability requirement on the types of hearsay at issue, and did not address the issue of whether testimonial statements could be admitted even if the witn ess wa s unav ailable. Id. The Crawford Court, howev er, did acknowledge one exception to its rule prohibiting testimonial hearsay without a finding of unavailability and a prior opportunity to crossexamine: The one devia tion we ha ve found involves dying declarations. The existence of that exception as a general rule of criminal hearsay cannot be disputed. Although many dying declarations may not be testim onial, there is authority for admitting even those that clearly are. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis . Id. at __, 124 S. Ct. at 1367 n.6, 158 L. Ed. 2d 1 77 (citations omitted). 15 Although the Supreme Court declined to frame a comprehensive definition of testimo ny, it listed several ch aracteristics of a testimonia l statement. The Court began by addressing what is tes timony : Testim ony, in turn, is typically [a] so lemn dec laration or affirmation made for the purpose of establishing or proving some fact. An accuser w ho make s a forma l statement to government officers bears testimony in a sense that a person who m akes a casu al remark to an acqua intance do es not. Id. at __, 124 S. Ct. at 1364 , 158 L. Ed. 2d 17 7 (citations omitted). Rather than articulate a singular stan dard, the C ourt offered three proposed formulations to exhibit the core class of what is testimonial for Confrontation Clause purposes : [1] ex parte in-court testimony or its fu nctional eq uivalent 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 reasonab ly expect to be us ed pros ecutoria lly, [2] extraju dicial stateme nts . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, ; [3] statemen ts that were made under circu mstances which w ould lead an objective witness rea sonably to belie ve that the statement w ould be av ailable for us e at a later trial. Id. (citations omitted). As the Court noted, these standards share a common nucleus in that each involves a formal or official state ment ma de or elicited with the purp ose of be ing introduc ed at a criminal trial. Id. at __, __, 124 S. Ct. at 1364, 1367 n.7,158 L. Ed. 2d 177 (finding that statements are testimonial where government officers [are involved] in the production of 16 testimony with an eye towa rd trial ). Althoug h these stan dards foc us on the o bjective qu ality of the statement made, the uniting theme underlying the Crawford holding is that when a statement is made in the course of a criminal investigation initiated by the government, the Confrontation Clause forbids its introduction unless the defenda nt has had an oppo rtunity to cross-e xamin e the de clarant. Id. at __, 124 S. Ct. at 1364, 158 L. Ed. 2d 177. The introduction of a witness s statements made during police interrogation was offered as a prime example of the potential abuses that the Clause was intended to prevent. Id. at __, 124 S. Ct. at 1364-65, 158 L. Ed. 2d 177. The Court emphasized the nature of statements made to p olice office rs in the cou rse of an in vestigation a s being esp ecially testimonial: Statemen ts taken b y police officers in the course of investigations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblan ce to examinations by justices of the peace in England. The statements are not sworn testim ony, but the abse nce of oa th was not dispositive. * * * That interrogators are police officers rather than magistrates does not change the picture either. Justices of the peace conducting examina tions unde r the Mar ian statutes were not magistrates as we understand that office today, but had an essentially investigative and prosecutorial function. England did not have a professional police forc e until the 19 th century, so it is not surprising that other government officers performed the investigative functions now associated primarily with the police. The involvement of government officers int the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace. * * * 17 In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcem ent officers fall squarely w ithin that class. Id. at __, 124 S. Ct. at 1364 -65, 158 L. Ed. 2d 177 (citations omitted). The Court clarified that its use of the term interrogation was not meant in its legal or rigid sense, but rather its colloquial or general mean ing. Id. at __, 124 S. Ct. at 1365 n.4, 158 L. Ed. 2d 177. The Court, however, did emphasize the formal nature of police questioning in its articula tion of w hen an interro gation occurs . Id.; Hammon v. State, 809 N.E.2d 945, 952 (Ind. Ct. App. 2004) (finding that the common denominator underlying the Supreme Court discussion [in Crawford] of wha t constitutes a te stimonial statement is the official and formal qu ality of such a statemen t ). This characterization is buttressed by the most commonly unde rstood sense of the ve rb interrogate : to question formally and systemica lly. Merriam We bster s Colle giate Diction ary 612 (10th ed. 1993). S everal cou rts have relied on this formality of interrogation to distinguish w hether a state ment to government agents or employees is testimonial. See, e.g., People v. Cage, 15 Cal.Rptr.3d 846, 856-5 7 (Cal. C t. App. 2 004), cert. granted, 99 P.3d 2 (Cal. Oct. 13, 2004) (finding a child s statement to a police officer at a hospital was not formal and therefore nontestimonial under Crawford because th e statemen ts were m ade in a pu blic, neutral location , there was no structured questioning, and the statements occurred in the course of determining wheth er a crim e had b een co mmitte d and b efore a ny arrest h ad bee n mad e). 18 Other courts hav e exclude d from the ir definitions o f interrogatio n statements made during investigatory or on-the-scene questioning by police officers responding to an emergency call. See, e.g., Fow ler v. State, 809 N.E.2d 960, 964 (Ind. Ct. App. 2004) (finding that a police officer s questioning of [the victim] at the scene of the incident just minutes after it occurred does not qualify as classic, police interrogation as referred to in Crawford ). Virtually all courts that have co nsidered th e matter in a p ost-Crawford setting, however, have interpreted an interrogation to include any formal police questioning that occurs after ch arges a re filed o r a police report h as been made . See, e.g., People v. Sisavath , 13 Cal.Rptr.3d 753, 758 (Cal. Ct. App. 2004) (finding significant, for purposes of determining whether statements made during an interview were testimonial under Crawford, the fact that the statements were made after a prosecution was in itiated). In the context of police interrog ations, we a re directe d by Crawford to conclude that the proper stan dard to apply to determine whether a statement is testimonial is whether the statements were made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial.16 Crawford, 541 U.S. at __, 124 S. Ct. at 1364, 158 L. Ed. 2d 177. 16 Amici supporting Respondent in the present case, the National Association of Criminal Defense Lawyers and the Maryland Criminal Defense Attorneys Association, propose in their brief that the proper standard for determ ining the testimonial nature of a statement should be the same standard used in the Supreme Court s Fifth Amendment jurisprudence. Had the Crawford Court intended to adopt such a standard, w e believe it would have done so explicitly. We also shall refrain from adopting such a standard. 19 III. Using these objec tive standard s in the present c ase, it is clear that an ordinary person in the position of any of the declarants would have anticipated the sense that her statements to the sexual a buse inve stigator poten tially would have been used to prosecute Snowden. The interview questions posed by Wakeel, and the responses elicited, were in every way the functional equivalent of the formal police questioning discussed in Crawford as a prime example of wh at may be consid ered tes timonia l. Id. at __, 124 S. Ct. at 1364-65, 158 L. Ed. 2d 177. Most telling is the fact that Wakeel s participation in this matter was initiated, and conducted, as part of a formal law enforcement investigation. The children were interviewed at the behest of Detective Davey of the Montgomery County Police Department, who was actively involved in the investigation. Unlike some cases in which statements to investigators were deemed nontestimonial because they were in the course of ascertaining whether a crime had be en com mitted, Hammon, 809 N.E .2d at 952, th e children s s tatements were elicited by Wakeel subsequent to initial questioning of them by the police and after the identity of a suspe ct was k nown . See Sisava th, 13 Cal.Rptr.3d at 757 (finding tha t statements objectively could be expected to be used later at trial where complaint and criminal information had been filed, and a preliminary hearing had been held). Indeed, Wakeel testified that she began her investigation with a police report in hand, which stated that Michael Snowden had sexually abused these ch ildren. During Wakeel s interviews, each 20 child also stated that she was a ware of the purpose of the questioning, and through each of her answers indicated that she was aware of the illegal (or at least morally or ethically wrong) nature of the to uching attribute d to Sn owde n. This awareness of the prosecutorial purpose of the interviews not only satisfies any ob jective form ulation of w hat is testimo nial, but, in our opinion, demonstrates that the children actually were aw are that their state ments had the potential to be used against Snowden in an effo rt to hold him accounta ble for his co nduct. The State argues that the nature of the interviews and the interviewer s employment compel the conclusion that the children s statements were not made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later tria l. Crawford, 541 U.S. at __, 124 S. Ct. at 1364, 158 L. Ed. 2d 177. We disagree. Even if we were inclined to ignore the children s actual awareness of the purpose of the interview s, any argument as to the logistics or style of the interviews blatantly disregards th e undenia ble fact that th e express p urpose of bringing the children to the facility to be interviewed was to develop their testimony for possible use at trial. See State v. Bobad illa, 690 N.W.2d 345, 349 (Minn. Ct. App. 2004) (finding, post-Crawford, that because the interview was conducted for [the] purpose of developing a case against [the defendant], . . . the answers elicited were testim onial in natu re ). Althou gh the trial cou rt in this case made no express finding whether the children s statements were testimonial, it made the following observation: The children were interviewed for the expressed purpose of developing their testimony by Ms. Wakeel, under the relevant 21 Maryland statute that provid es for the testim ony of certain person s in lieu o f a child , in a sex ual abu se trial . . . . The State asks u s to ignore this finding, even though it is a factual finding upon which the intermediate appellate co urt relied almo st exclusively to conclude that the children s statements, in light of Crawford, were te stimon ial. Snowden, 156 Md. App. at 157, 846 A.2d at 47. Although not dispositive of the question before us, the trial court s finding that the interviews were made for the express purpose of satisfying the requirements of the tender years statute supports strongly our conclusion that the interviews were conducted, and the stateme nts mad e, in con templa tion of a later trial, a nd thus are testim onial in n ature. Moreover, we find th at the structure, location, and style of the interview s actually support the notion that the children s interviews were a formal and structured interrogation where the responses reasonably would be expected to be used at a later trial. The fact that the interviews were conducted by a licensed sexual abuse investigator, rather than a police officer, is of little persua sive weig ht in our ana lysis. The Crawford Court uniquely was aware of the danger of confining testimonial statements to those made to police w hen it stated: Involvement of governme nt officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse - a fact borne out time and again throughout a history with which the Fram ers were keenly familiar. Crawford, 541 U.S. at __, 124 S. Ct. at 1367 n.7, 158 L. Ed. 2d 177. 22 Wakeel s role as interviewer was little different from the role of a police officer in a routine police interro gation. W akeel beca me involv ed only after b eing conta cted by the Montgomery County Police Department, which informed her of the substance of the children s accusa tions. Because Wakeel was performing h er responsibilities in response and at the behest of law enforcement, she became, for Confrontation Clause analysis, an agent of the police d epartmen t.17 See State v. Mack, 101 P.3d 349, 352 (Or. 2004) (rejecting State s argument that child s statements during an interview with a social worker were not testimonial under Crawford, based on the finding that the social worker was acting as an agent for the police . . . ); In re T.T., 815 N.E.2d 789, 801 (Ill. App. Ct. 2 004) (find ing postCrawford that where [a social worker] works at the behest of and in tandem with the State s Attorney with the inte nt and pur pose of a ssisting in the p rosecutorial e ffort, [the social worker] functions as an agent of the prosec ution ) . Although it is preferable for victims of crime to be questioned by law enforcement personnel who have experience in evaluating evidence and witn esse s wit h an eye toward prosecution, because of the nature of c hild victim witnesses a s particularly emotionally fragile, it may be necessary to utilize other personnel possessing training in questioning children that may otherwise be traumatized. See Peo ple 17 The American Prosecutors Research Institute, in its amicus brief supporting the State, points out that merely because the statements were made to an agent of the government is not enough to conclude that a statement is testimonial. Nonetheless, we find that where an objective person in the position of the declarant would be aware that the statement-taker is an agent of the government, governmental invo lvem ent is a rele vant, and inde ed w eigh ty, factor in determining whether any statements made would be deemed testimonial in nature. 23 v. Vigil, No. 02CA 0833, slip op. at 5-6 (Colo. Ct. App. J une 17 , 2004) , cert. granted, No. 04SC532 (Colo. De c. 20, 2004) (finding the fact that the interview was conducted by an investigator trained to interview children did not alter the court s finding that a child s interview was an interrogation u nder Crawford). Wakeel had e xtensive train ing in investigating and interviewing abused and neglected children, as well as testifying in court concerning the results of those inves tigations. As part of her official responsibilities, she worked closely with the Montgo mery County law enforcem ent and jud icial systems, not o nly in this case, but in several other matters. Wakeel s dual roles as interviewe r and ultima te witness for the prosecution confirm her function as an arm of the police inv estigation in th is case. Furthermore, even were we to accept the State s arg ument tha t Wakee l s responsib ility was simply to assess [the] safety of children in sexual abuse and neglect cases, the presence of Detective D avey during the interviews, and the children s a wareness of the d etective s presence, overwh elms any argu ment that the statements were not testimonial because they were not in response to police questio ning. Bobad illa, 690 N.W .2d at 349; Sisavath, 13 Cal.Rptr.3d at 758. The State also argues that the children s statements during the interview are not testimonial due to the neutral location of the interview 18 and the nonauthoritarian demeanor of the interviewer. To the contrary, the interv iews did n ot take place at a neutral 18 The actual room within the Juvenile Assessment Center where the interview s were conducted was described as small . . . with stuffed animals on the walls, a sofa, two chairs, basicall y; otherw ise non descrip t. 24 location, but at a County-owned and operated facility unfamiliar to the children and used for the purpose of investigating and assessing victims of child ab use. Altho ugh the Ju venile Assessment Center in Rockville may bear little resemblance to the torture chambers of the dread Lord Jeffreys,19 the Center s express purpose, in a significant way, was to provide a controlled and structured environment for the questioning, or interrogation, of the children about th eir acco unts of a possib le crime . Furthermore, the asserted lack of an authoritarian demeanor on the part of the interviewer in this case does not negate the underlying purpose of the interview and all the participants awarene ss of the po tential use of the inform ation elicited. S tatements in response to structured police interrogation are no less testimonial because the police interrogator expres ses em pathy or f riendsh ip for th e intervi ewee . See Vigil, No. 02CA0833, slip op. at 5 (finding that [a]lthough the interview in this case was conducted in a relaxed 19 Many of the protections in the American Bill of Rights mirror those found in the English Bill of R ights, w hich was enacted after James II of England was forced from the throne in 1689 by a protestant army led by William of Orange. Sources of Our Liberties 22244 (Richa rd L. Pe rry et al. eds ., 1959) . Many of the judicial reforms found in the English Bill of Rights cam e as a respo nse, in part, to the tactics and meth ods e mployed by Lo rd Je ffre ys when he presided over the Bloody Assizes of 1685. Following the unsuccessful rebellion of the Earl of Argyle and the Duk e of M onmou th in 1685, Lord Jeffreys, who was appointed by James II, conducted a campaign of illegal and corrupt trials of the insurrectionists and their supporters, and was infamous for his ruthless and mercile ss puni shmen ts. Id. at 226, 236 n.103. Lord Jeffreys is often invoked in American case law to exemplify the abuses which the Bill of R ights was d esigned to p revent. See, e.g., Crawford, 541 U.S. at __, 124 S. Ct. at 1364, 158 L. Ed. 2d 177 (invoking Jeffreys to find that the Framers would not have endorsed the indicia o f reliability test for C onfrontatio n Clause v iolations fou nd in Roberts). 25 atmosphere, with open-ended, nonleading questions, and although no oath was administered at the outset, it nevertheless amou nted to interrogation under Crawford ). By analogy, the statements made to a sexual abuse investigator are no less testimonial because the investigator uses non- intimidating, a ge-appro priate interview technique s designed to limit retraumatization. See In re R.A.S., No. 03CA1209, slip op. at 7 (Colo. Ct. App. June 17, 2004) (finding that a child s statements were testimonial under Crawford in the context of age-appro priate questio ning by a n inves tigating office r). The reco rd here sho ws that, even if the atmosphere during the questioning was relaxed, Wakeel impressed upon the children the serious and businesslike purpose of the interviews. The America n Prosecu tors Resea rch Institute s a micus brief argues that th e limited cognitive and developmental skills of young children must be taken into account when determining whether a child s statement is testimonial. Although cautious not to dismiss out of hand the research concerning child development pointed to in the amicus brief, we conclude nonetheless that these contention s are not relev ant in this case because e ach child was able facially to give a full and complete account of their experiences with Snowden. This is made apparent by the trial court s findings, based on Wakeel s testimony and the judge s interviews of the children, for purposes of the tender years statu te, that the statem ents of each of the children exhibited particularized guarantees of trustworthiness. We therefore are reluctant to accept amicus s generalized contentions that a young child s statement may never be testimonial. Although we recognize that there may be 26 situations where a child may be so young or im mature tha t he or she w ould be un able to understand the testimonial nature of his or her state ments, w e are unw illing to conclu de that, as a matter o f law, young children s sta tements cannot possess the sam e testimonial nature as those of other, more clearly competent declarants. Indeed, other courts have found to be testimonial stateme nts by child ren as you ng as th ree years o ld. Mack, 101 P.3d at 349; See also In re R.A.S., No. 03C A1209 , slip op. at 1 (invo lving a fou r year old declar ant); Sisavath, 13 Cal.Rptr.3d at 755 (sam e); but see Cassidy v . State, 74 Md. App. 1, 29-30, 536 A.2d 666, 679-80 (1988) (fin ding that a statement by a two year old declarant was not admissible under the Statemen ts made to a Treating P hysician exce ption to the H earsay Rule b ecause the child did not understand th e nature or purpose o f her interview with [th e physician] ). This concern for the testimonial capacity of young children overlooks the fundamental principles underlying the Confrontation Clause. Even though there are sound public policy reasons for limiting a child victim s exposure to a potentially traumatizing courtroom experience, we nonetheless must be faithful to the Constitution s deep concern for the fundamental rights of the accused. Although the Supreme Court has recognized that the interest of protecting victims may triumph over some rights protected by the Confrontation Clause, it also has conclude d that such in terests may never outweigh the explicit guarantees of the Clause, including the right to meet face to face all those who appear and give evidence at trial. Coy v. Iowa, 487 U.S. 1012, 1019-21, 108 S. Ct. 2798, 2802-03, 101 L. Ed. 2d 857 (1 988) (citation s omitted); but see Cr aig, 497 U.S. at 857, 110 S. Ct. at 3170, 111 27 L. Ed. 2d 666. To this end, the formulations in Crawford outlining what is testimonial not only take into account the intentions of the declarant, but also look to the intentions of the person eliciting t he statem ent. 541 U.S. at __, 124 S. Ct. at 1367 n.7, 158 L. Ed. 2d 177. To allow the prosecution to utilize statements by a young child made in an environment and under circumstances in which the investiga tors clearly contem plated use o f the statem ents at a later trial would create an exception that we are not prepared to recognize.20 Thus, we are satisfied that an objective test, using an objective person, rather than an ob jective child of that age, is the a ppropriate te st for determ ining wh ether a statem ent is testimon ial in nature. See Sisavath, 13 Cal.Rptr.3d at 758 n.3 (rejecting the notion that an objective witness should be taken to mean an objective witness in the same category of persons as the actual witness here, an o bjective four-year-old ). The State also seemingly relies heavily on the therapeutic nature aspect of the interviews to argue that the statements by the children here are not testimonial. The fact that there is a therapeutic element to the interviews does not eclipse the overriding fact that the interviews were designed to develo p testim ony that m ay be use d at trial. See People v. 20 The American Pro secutors Research Institute asks us to consider, when determining whether the children s statements are testimonial, the fact that this ca se involves vulnerable child witnesses. Whether the children s sta tements are testimonial, ho wever, is a question that has greater constitutional implications for the accused than for the child witness. Amicus s argument that children must be treated diffe rent ly in the court system generally only becomes relevant once the prosecutio n decides to call the ch ildre n to the stand to tes tify. Maryland v. Craig, 497 U.S. 836, 110 S. Ct. 3157, 111 L. Ed. 2d 666 (1990). In determining the testimonial q uality of a statement, however, it is the circumstances of the statement that is paramou nt, and not n ecessarily the na ture of som e inherent c haracteristic of the declaran t. 28 Warner, 14 Cal.R ptr.3d 419 , 429 (Cal. Ct. Ap p. 2004 ), cert. granted, 97 P.3d 811 (Ca l. Sept. 15, 2004) (fin ding that ev en though a social wo rker s interview is not intend ed solely as an investigative tool for criminal prosecutions, . . . [it is nonetheless] similar to a police interrogation . . . ). Although some co urts, post-Crawford, have fou nd stateme nts nontestimonial because they were made to a physician in the course of seeking and receiving medical treatme nt, State v. Vaught, 682 N.W.2d 284, 291-92 (Neb. 2004), we do not find that to be the case here. These children were brought into the interview facility not so much for a noninves tigatory purpos e, such as m edical or psych ological treatm ent, but rather to assist and develop an investigation initiated by the Montgomery County Police Departm ent. 21 Any therapeutic motive, or e ffect, of W akeel s invo lvement w ith the children is seconda ry, in terms of proper Confrontation Clause analysis, to the overarching investigatory purpose, and therefore testimonial nature, of the statements elicited during the interviews. Crawford s command in this regard is clear. No matter what other motives exist, if a statement is made under such circum stances that would lead an objective person to believe that statements made in response to government interrogation later would be used at trial, the admission of those 21 Undue focus on a therapeutic element in a testimonial analysis in this case would be myopic. The reco rd indicates th at although the interviews with the children brought out evidence of physical abuse, no investigation was made into these allegations because, as Wakeel testified, the sc ope of m y investigation w as the sexu al abuse. B y only pursuing that which is relevant to the ongoing police investigation, we are comfortable in arriving at our conclusion that the children s statements were taken, and given, in anticipation of their use at trial. 29 statements must be conditioned upon Crawford s requirem ents of unavailability and a prior oppor tunity to cro ss-exam ine. By resolving that Wakeel s testimony was admitted w rongly in Sno wden s tria l, we do not render useless Maryland s tender years statute. The statutor y framewo rk certainly contemplates other circumstances in which a child s non-testimonial statements could be supplied constitutionally by a health or social work pro fessional. See Pe ople v. G eno, 683 N.W.2d 687, 692 (Mich. Ct. App. 2004) (finding nontestimonial under Crawford a child s statement to the executive director of a children s ce nter whe re director w as not a government employee and child volunteered incriminating information). As one amicus notes, the tender years statute is limited to those medical, psychological, social work, and school-related professions whose primary role, in the context of children, is to promote safe ty, education, and healthy development. Md. Code (2001), § 11-304(c) of the Criminal Procedure Article. Statements made to a school principal conducting a casual chat with a student, for example, do not present necessarily the same potential constitutional abuses as when a child s statem ent is made to a health or social work professional that is working in tandem with law enforcement in furtherance of an ongoing and formal criminal investigation. We leave to another day the questio n of wh ether such n oninvestiga tory statements w ould be admissible in light of Crawford. IV. 30 The State also argues that e ven if the children s statements are testimonial, Snowden waived his rights und er the Con frontation C lause because the children were present in the courthouse, if not actually in the courtroom, and available to testify until released following the trial judge s ruling on the admissibility and receipt of Wakeel s testimony. To this end, the State suggests that Snowden s objections at trial were insufficient to preserve the Confrontation Clause issue because he did not object exp ressly to the State s fa ilure to call the children as witnesses. Although he may not have objected to the State s failure to place the children in the witness box, we find that Snowden s objections to the use of the social worker s testimony properly preserved his Confrontation Clause arguments for appellate review . At trial, the following colloquy occurred between the trial judge and Snowden s counsel: [DEFENSE COUNSEL]: Just so there s no misunderstanding, we are obje cting to t he proc edure its elf. We don t I don t kn ow wh ether this procedure has been reviewed by our Court of Special Appeals. THE COURT: Okay. Well, I ll note that there s an objectio n mad e to Crim inal Pro cedure 11-30 4. But, [Defense C ounsel], what I need to kn ow in ord er to appropriately rule on that is why it s defective. [DEFENSE COUNSEL ]: Well, you re taking away valua ble rights fro m the def endant. THE COURT : Well, other than the admissibility of hearsay evidence, which is the purpose of the section, the legislative intent of the section, what I need to know is whether or not you are asserting that it is unconstitutional in some fashion and spec ifically how, an d is there any support for such? 31 [DEFENSE COU NSEL ]: Well, the de fendant is n ot able to confront the witnesses. THE COU RT: So that [DEFENSE COUN SEL]: The Court is standing between the witness es and the d efendan t. THE COURT: You re asserting that the statute is void as a violation of Article [sic] 6 of the U.S. Constitution and Comparable Rights under the [DEF ENSE COU NSEL ]: 14th Amen dment. THE COU RT: Well [DEFENSE COUNSEL ]: As applied to the states and THE COURT: Well, the 14th Amendment, for sure, but what I m referring to are the Declaration of Rights within the State of Maryland. [DEFENSE COUNSEL]: That and the federal guarantees that a defendant has in this case or in any other case. THE COURT: Well, the Court will entertain any reasoning other than just the statement that it is unconstitutional and denies the guarantees of that amendment and any case law that might su pport that. I m not aware that, one way or another, w hether there s been a constitution al challenge to the statute, but I suspect by now there proba bly has been , to be hone st with you, but I don t know. [DEFENSE COUNSEL ]: Well, it s very unusual to take away the right of a defendant to confront his accusers. THE COURT: Well, the legislature of the State of Maryland recognized that child abuse circumstances w ere different an d unusua l. It provides th at the right is limited, it s done so only with the right to admit hearsay evidence, has done so only under very specialized circumstances, and the hearsay may be developed only from certa in persons a nd unde r the I think there are 12 conditions. The trustworthiness that had to be identified and reviewed by the Court as well as the in-camera interview. So, consequently at this point, I ll deny your motion to I ll grant the State s motion at least to interview the young ladies to determine whe ther or not I am satisfied that their testimony may be received throug h the social worker. 32 If I m not, then your client s rights have not been violated as you see it. I m not sure that they ve been violated at all because there is a right for the State to present this under the statute. All right. [DEFENSE COUNSEL ]: In any event, my ob jection is duly noted. THE C OUR T: Surely [DEFENSE CO UNSEL]: Thank you. Although it is clear from the record that Snowden objected based on the constitutiona lity of th e ten der ye ars statut ory framewo rk as utilized in this case, the S tate nonetheless argues that Snowd en s objectio ns are defic ient becaus e they wen t only to Ms. Wakeel s being allowed to testify to the children s out-of-court statements, not also to the fact that the childre n would not be called a s witne sses by the State. 22 The State s reliance, however, on Snowden s failure to insist that the State place the children on the stand ignores 22 The State uses as support for its argument Professor John G. Douglass s theories on the Confrontation Clause espoused in his 1999 law rev iew artic le, Beyond Admissibility: Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 Geo. Wash. L. Rev. 191 (1999). In his article, Professor Douglass proposes that the State shou ld be able to introduce the statements of an available hearsay declarant without running afoul of the Confrontation Clause, so long as the defen dant has the opportun ity to call the hearsay declarant as his or her own witness in lieu of cross-examination. Id. at 227-28. We believe Professor Douglass s proposal has significant constitutional shortcom ings, most im portantly relating to the burden of production that is placed on the State to p roduce af firmatively the witnesses needed for its prima facie showing of the defenda nt s guilt. See Lowery v. Collins, 988 F.2d 1364, 1369-70 (5th Cir. 1993) (rejecting as simply wrong the State s theory that the defendant waived his Confrontation Clause righ ts because h e did not ca ll his accuser to the stand). Furthermore, we doubt that Professor Douglass s pre-Crawford interpretation of the Sixth Amendment has much currency now. 33 the fundam ental principle of the State s threshold b urden to produce a prima fa cie case of the defenda nt s guilt. In a criminal trial, the State is required to place the defendant s accusers on the stand so that the defendant both may hear the accusa tions agains t him or her s tated in open court and have the opportunity to cross-examine those witnes ses. See, e.g., Coy, 487 U.S. at 1017, 108 S. Ct. at 2801, 101 L. Ed. 2d 857 (finding that the Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination (quoting P ennsylvan ia v. Ritchie, 480 U.S. 39, 51, 107 S. Ct. 989, 998, 94 L. Ed. 2d 40 (198 7)). In Snowd en s case, the State circumvented this right, through use of the tender years statutory framework, by having the social worker testify in place of the children. The burden, however, is on the State, not Snowden, to prove its case through production of witnesses and evidence that conform to the U. S. Constitution and Maryland D eclaratio n of R ights. See Lowery v. Collins, 988 F.2d 1364, 1369-70 (5th Cir. 1993) (rejecting the State s Con frontation Clause w aiver theory because it unfairly requires the defendant to choose between his right to cross-examine a complaining witness and his right to rely on the State s burden o f proof in a criminal case ). When the State un dertakes to d o this, it is the burden o f the defe ndant to ob ject properly to evidence or witnesses so as to preserve an issue for appellate review. In this case, Snowden objected to the use of the tender years statutory procedure because he felt it denied him the protections of the Co nfrontation Clause. Im plicit in that objection, if well taken, is the 34 demand that t he w ithheld d eclarants test ify. Although Snowden did not object directly to the State s failure to call the children to testify, it does not follow that a defen dant waiv es his or her objections simply because he or she failed to inform the prosecution which evidence or witnesses would be an acceptable substitute. The State also argues that Snowden s objections fail because they in no wise sounded the complaint raised by Sir Walter Raleigh, . . . [who] demanded that his accuser be called, saying let [Lord] Cobham be here, let him speak it. Call my accuse r befor e my fac e . . . . 23 23 The Crawford Court identified as the modern origin of the Confrontation Clause the series of statutory and judicial reform s that came in response to the judicial abuses that occurred during the trial of Sir Walter Raleigh in 1603. 541 U.S. at __, 124 S. Ct. at 1360, 158 L. E d. 2d 177 . The Co urt described Raleigh s p redicame nt: Lord Cobham, R aleigh s alleged accomplice [in his alleged plot against James I], had implicated him in an e xamination before the Privy Council and in a letter. At Raleigh s trial, these were read to the jury. Raleigh argued that Cobham had lied to save himself: Cobh am is absolutely in the King s mercy; to excuse me cannot avail him; by accusing me he ma y hope fo r favou r. Suspecting that Cobham would recant, Raleigh demanded that the judges call him to appear, arguing that [t]he Proof of the Common Law is by witness and jury: let Cobham be here, let him speak it. Call my accuser before my face . . . . The judges refused, and, despite Raleigh s protestations that he was being tried by the Spanish Inquisition, the jury convicted, and Raleigh was sentenced to death. Id. (citations omitted). The Crawford Court found that Raleigh s futile demands to confront and question Cobham during his trial exemplified the abuses that the Confrontation Clause was designed to preven t. Id. The State argues that Snowden did not in fact demand that his accusers be called, and further claims that Snowden in fact did not desire to question th e children a t all. (contin ued...) 35 Despite the State s contentions, Snowden s objections squarely implicate the fundamental complain ts voiced by Raleig h. Snowden made clear in his objections that, in allowing the State to present the children s accusations through the social worker, the trial judge, like the court in Raleigh s case, was standing between the witnesses and the defendant. Furthermore, Snowden s accusers, like Cobham in Raleigh s case, were not called to testify in court, yet their statements nonetheless were read into court as substantive inculpatory evidence withou t any opp ortunity to cross-e xamin e the de clarants . See Crawford, 541 U.S. at __, 124 S . Ct. at 1360, 1 58 L. Ed . 2d 177 (d escribing the judges ref usal in Raleigh s trial to bring Cobham before the tribunal for cross-examination, despite Ra leigh s objec tions to his accuser s confession being read to the court). Snowden s objections were in direct response to this inability to confront the children about their a ccusations , a scenario orchestrated by the State and sanctioned by the trial court through the allowance of the tender years statutory framework. Although Snowd en did not dema nd explicitly that th e State call the child ren to testify, we find it sufficient that, in his objections, he did insist that any accusations (including testimonial evidence) presented before the factfinder conform to the fundamental principles of the Confrontation Clause. 23 (...continued) We find, as discu ssed abov e, that Snow den s obje ctions at trial imp licated the State s declination to call his accusers, a right that Snowden possessed as a criminal defendant no matter w hat his u ltimate in tentions . 36 JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PA ID BY MONTGOMERY COUNTY, MARYLAND. 37

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