IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 92,251
STATE OF KANSAS,
Appellee,
v.
ELROY D. HENDERSON,
Appellant.
SYLLABUS BY THE COURT
1. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "'[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" The Sixth Amendment is applied to the States through the Fourteenth Amendment. Similarly, the Kansas Constitution Bill of Rights, § 10, provides a criminal defendant the right "to meet the witnesses face to face."
2. Whether a defendant's right to confrontation has been violated is a question of law subject to unlimited review.
3. If the declarant is unavailable to testify at trial, and the declarant's statement is testimonial, then the testimony is not admissible unless the defendant had a prior opportunity to cross-examine the declarant.
4. In determining whether a statement is testimonial, an appellate court applies an objective, totality of the circumstances test.
5. Confrontation Clause violations are subject to the constitutional harmless error analysis under Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967).
6. Under the doctrine of forfeiture by wrongdoing, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.
7. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
8. Under the facts of this case, a videotaped interview with the purported victim, a 3-year-old girl, was testimonial. Because the victim did not testify at trial, the district court erred in allowing the jury to watch the tape, and the defendant's right to confrontation was violated.
9. Under the facts of this case, absent the videotaped interview, a rational factfinder could have found the defendant guilty beyond a reasonable doubt from the remaining evidence. Remand was therefore proper.
Review of the judgment of the Court of Appeals in 35 Kan. App. 2d 241, 129 P.3d 646 (2006). Appeal from Sedgwick district court; JOHN J. KISNER, JR., judge. Judgment of the Court of Appeals reversing and remanding with directions to the district court is affirmed. Judgment of the district court is reversed and remanded with directions. Opinion filed June 22, 2007.
Roger L. Falk, of Law Office of Falk & Owens, P.A., of Wichita, argued the cause, and Christopher Hughes, of the same firm, was with him on the briefs for appellant.
David Lowden, chief appellate district attorney, argued the cause, and Charles L. Rutter, assistant district attorney, Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the briefs for appellee.
Alice Anna Phillips, senior attorney, of American Prosecutors Research Institute, of Alexandria, Virginia, was on the brief for amicus curiae American Prosecutors Research Institute.
The opinion of the court was delivered by
NUSS, J.: A jury convicted Elroy D. Henderson of one count of aggravated indecent liberties with a child. On appeal, Henderson primarily argued his confrontation rights were violated when the jury was allowed to watch a videotaped interview of the 3-year-old victim without her testifying at trial. The Court of Appeals agreed. After holding that sufficient evidence remained to support his conviction, it reversed and remanded for a new trial. State v. Henderson, 35 Kan. App. 2d 241, 129 P.3d 646 (2006). Both the State and Henderson petitioned this court for review under K.S.A. 20-3018(b).
The issues on appeal, and our accompanying holdings, are as follows:
1. Was Henderson's right to confrontation violated when the jury watched the videotaped interview? Yes.
2. Did Henderson forfeit his right to confrontation by essentially making the victim witness unavailable to testify due to her young age? No.
3. Absent the videotaped interview, is the remaining evidence sufficient to support Henderson's conviction? Yes.
Accordingly, we reverse and remand for a new trial.
FACTS
At the end of February 2003, Jami I. (Mother) noticed a discharge from the vagina of her 3-year-old daughter F.J.I. In addition to the discharge, F.J.I. had complained her stomach and "potty place" were hurting. Because Mother believed F.J.I. probably had a bladder infection, she scheduled an appointment at the Wichita Clinic for March 3. The examination that day revealed a urinary tract infection. Test results available 3 days later revealed F.J.I. had gonorrhea. Mother was informed of these results on March 6 by the clinic's nurse practitioner, Jean Harris.
Harris suspected child abuse. Because she knew she was required to report her suspicions and would be asked by Child Protective Services about possible perpetrators, Harris asked Mother if she knew of any possible molester of her daughter. According to Harris, Mother said that only her ex-boyfriend Elroy D. Henderson, a/k/a "Donte" or "Tae," had had unsupervised access to F.J.I.
According to Mother's later trial testimony, early in the morning on February 24, 2003, she and Henderson had had unprotected consensual intercourse at her house. Later that day while Mother was at work, Henderson and F.J.I. were alone together from 8:30 a.m. to 3 p.m.
After Mother's discussion with Harris on March 6 at the clinic, while there she submitted a vaginal culture of her own for testing. That same day Harris called Child Protective Services of the Kansas Department of Social and Rehabilitation Services (SRS) to make her report. According to Mother's testimony, Mother called SRS and was later contacted by Detective Cherney of the Sedgwick County Sheriff's Office. As confirmed by Detective Cherney's later probable cause affidavit, on that day he and SRS social worker Lori Chandler – both members of the Exploited and Missing Children Unit (EMCU) – were notified of a 3-year-old female, F.J.I., who had been diagnosed with gonorrhea.
According to Cherney's affidavit, the next day, March 7, he and Chandler interviewed F.J.I.'s mother. The interview occurred at a state office building in Wichita. The affidavit asserted that Mother told Cherney that she had brought her 3-year-old daughter to the Wichita Clinic on March 3 because she was complaining about pain in her vaginal area. Mother gave Cherney a copy of the test results which showed positive for gonorrhea.
Cherney's affidavit also asserted that Mother asked F.J.I. who touched her "potty in a bad way." F.J.I. replied, "Tae touched my potty with his ding ding." Mother told Cherney and Chandler that "Tae" was the nickname of her ex-boyfriend Henderson.
According to the affidavit, Mother told Cherney that she had broken up with Henderson in January 2003, but got back together with him the following month. Henderson came to her house around February 24, 2003, to baby sit F.J.I. and her son, and Mother had unprotected sexual intercourse with him during the week of February 24. Mother told Cherney that Henderson had been alone with F.J.I. and her son at her house.
F.J.I. was also interviewed at the state office building by Cherney and Chandler. Mother was present during the interview, which was video and audiotaped. At trial, Mother denied making any attempt before the interview to tell F.J.I. who had molested her, to suggest Henderson was the perpetrator, or to indicate in any fashion what to tell the detectives.
During the interview, F.J.I. was asked to name various parts of the body based upon a drawing of a girl; F.J.I. identified several parts. She called her backside a "body" and her front genital area a "potty."
The following then occurred, as transcribed by Cherney from the tape:
"LC [Chandler]: Are you a girl?
"FI [victim]: Uh huh (positive).
"LC: You are? Did you know that girls have three parts that nobody should touch?
"FI: No.
"LC: You didn't know that, okay. Well you know what? There's three. Look this one. What's this?
"FI: Hhm, I told you it's a body.
"LC: A body, you're right. That's what you said. It's a body and that nobody is supposed to touch us on our body. Did you know that?
"FI: Tae touched my body and it was hurting.
"LC: He did?
"FI: With the ding ding.
"LC: With the ding ding?
"FI: Uh huh (positive).
"LC: What's a ding ding?
"FI: It goes on my body.
"LC: Okay.
"FI: It goes on [F.J.I.'s] body.
"LC: On [F.J.I.'s] body?
"FI: Uh huh. (Positive)."
When asked where she was when Tae touched her, F.J.I. responded that she was hiding behind her mother's bed at her Grandma's house because she "[did not] want Tae to touch [her]."
Chandler also presented a diagram of a male to F.J.I..
"LC: Okay, I'm going to show you a picture of a boy, okay?
"FI: Okay.
"LC: . . and I want you to show me where, what a ding ding is, cause I don't know what a ding ding is. Will you help me with that?
"FI: Uh huh (positive). What's on your page?
"LC: Okay, I want you to help me with this one.
"FI: Okay.
"LC: Okay, where, what is a ding ding? What's a ding ding?
"FI: Hhm, look.
"LC: What? What's that?
"FI: I don't know.
"LC: You don't know?
"FI: That's a hot dog.
"LC: A hot dog?
"FI: Uh huh (positive).
"LC: Oh, right here.
"FI: It's a hot dog.
"LC: Hot dog. Okay, I'll write that. Hot dog, okay. Where is the ding ding?
"FI: It's lives in the boys body.
"LC: It's in the boys body right there by the hot dog?
"FI: Uh huh (positive).
"LC: Okay, okay so did you see Tae's ding ding?
"FI: Uh huh (positive).
"LC: You did?
"FI: Yeah.
"LC: What did it look like?
"FI: He pushed it down and put it on [F.J.I.'s] body.
"LC: He pushed it down and put in on [F.J.I.'s] body?
"FI: Uh hun (positive)."
F.J.I. later identified the front genital area of her body when asked where the "ding ding" touched her. She stated that she took her diaper off and let Tae touch her body. F.J.I. further stated that Tae had green hair; however, based on further questioning, she could not correctly identify colors.
Detective Cherney participated to a much lesser extent than Chandler in the interview. He primarily asked F.J.I. to demonstrate with his pen and folder what she meant by "top," "inside" and "beside." In response, she only put the pen on top of the folder, moving it around several times.
Three days after the interviews of Mother and F.J.I., on March 10, 2003, Mother learned from her lab test results that she too had gonorrhea. That same day she notified Cherney of the results.
On October 20, 2003, Cherney filed his affidavit, dated October 17, in a criminal case, stating that he had probable cause to believe that Henderson had committed the offense.
Chandler and Cherney were unable to locate Henderson until 3 days later, October 23, when he turned himself in to the Wichita Police Department. During this interview, Henderson initially denied babysitting F.J.I. on February 24, 2003; he later, however, admitted that he had. He also admitted having consensual, unprotected intercourse with Mother but denied that he had sexually abused F.J.I. When discussing the allegations, Henderson referred to his penis as a "ding-ding," as F.J.I. had.
Henderson admitted that he had sought treatment for a sexually transmitted disease more than once. His medical records revealed that he had been treated for chlamydia in October 2001. Henderson also stated that he had an appointment to be tested for sexually transmitted diseases on February 18, 2003, but he had skipped it for lack of money. According to Chandler, Henderson said the missed appointment had been to test for gonorrhea. However, Detective Cherney could not remember whether Henderson said he was to be specifically tested for gonorrhea or sexually transmitted diseases in general.
That same month, Henderson was charged with one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(3)(A).
On January 21, 2004, pursuant to K.S.A. 60-460(dd), the State moved to admit two statements made by F.J.I. First, the State sought to admit F.J.I.'s statements made on March 6, 2003, during her follow-up visit to the Wichita Clinic. According to the State's proffer of Harris' testimony, after receiving the news of F.J.I.'s positive test for gonorrhea, Mother "turned to F.J.I. and asked, 'Did Tae hurt you, did Tae mess with you?' F.J.I. nodded in the affirmative that that had happened." Second, the State sought to admit the March 7 videotaped interview conducted by Chandler and Cherney.
At the motion hearing, F.J.I. was asked a series of questions outside of the jury. After F.J.I. was dismissed, the district judge determined that she was unavailable as a witness:
"[I]t's my belief that from the testimony in the courtroom, in the presence of counsel and the defendant, [F.J.I.] is unable to really understand completely the questions. She is unable to understand the importance of this proceeding, and particularly it's apparent to me that she is unable to understand the application of the oath, the relevance of the oath or the requirement to tell the truth; and so I'm going to find that she is incapable of fully understanding the duty of a witness to tell the truth pursuant to K.S.A. 60-417, subsection (b), and will declare her and disqualify her from testifying in this case and will find her to be unavailable as a witness pursuant to K.S.A. 60-459 and pursuant to the case law with regard to K.S.A. 60-460(dd)."
In the court's second step of analysis, it considered the reliability of F.J.I.'s statements. It refused to admit F.J.I.'s affirmative responses to her Mother's questions in Harris' presence, holding they did not possess a particularized guarantee of trustworthiness because F.J.I. demonstrated that "she could be led to agree with clearly incorrect statements." However, the court held that F.J.I.'s statements during the videotaped interview did possess the requisite trustworthiness and would be admitted. Henderson was granted a continuing objection to admission of the videotaped interview, primarily on Confrontation Clause grounds.
At trial Mother, Harris, Chandler, and Cherney testified for the State as to the previous events. During Cherney's testimony, the videotape was played to the jury.
Dr. Katherine Melhorn also testified for the State. She described how gonorrhea is transmitted and how it manifests itself with children. According to the doctor, although gonorrhea is spread through mucosal contact, it does not require actual intercourse or penetration; rather, close contact with the penis or vagina is often enough. Because gonorrhea dies rapidly when outside of the body, Dr. Melhorn testified that it is unlikely a child could contract gonorrhea by sitting on a toilet seat recently used by a carrier. However, she did acknowledge that gonorrhea could possibly be passed by a washcloth if it was shared within a short period of time.
Henderson testified on his own behalf. He stated that February 24, 2003, he was dating a woman named Eva Shunatona but acknowledged that around 3 a.m. he went to Mother's house and engaged in consensual intercourse with her. Later that morning, Mother asked him to babysit F.J.I., as well as her younger brother. Before Mother left for work, she changed F.J.I.'s diaper and stated that she thought F.J.I. had a yeast infection or a urinary tract infection and that she was taking F.J.I. to get checked at the end of the week. Henderson noticed a yellowish discharge coming from F.J.I.'s vagina.
After that day, Henderson did not see Mother again until June or July 2003. On that occasion, Henderson asked Mother why she gave his name to the detectives for something she knew he did not do. According to Henderson, Mother apologized and said that the matter had been dropped.
Henderson testified that he babysat F.J.I. again in September 2003, and she called him "Daddy" because of their father/daughter type of relationship. According to him, after he found out he was wanted by police, he turned himself in to the authorities. While he admitted testing positive for chlamydia twice, he denied ever having gonorrhea. Henderson also denied touching F.J.I. in any way with his penis.
Henderson's former girlfriend, Eva Shunatona, and his current girlfriend, Miranda Helphingtine, also testified that they engaged in unprotected sexual intercourse with him. Both women denied contracting a sexually transmitted disease from him; however, only Helphingtine had been tested. Helphingtine also testified that she and Henderson had seen F.J.I. in August, September, and October 2003 with Mother's knowledge.
The jury found Henderson guilty of aggravated indecent liberties with a child. Henderson was sentenced to 59 months' imprisonment, with 36 months of postrelease supervision.
Henderson appealed. During the time between his January 26-27, 2004, jury trial and the March 10, 2006, Court of Appeals decision, the United States Supreme Court released Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), which dealt with the Confrontation Clause of the Sixth Amendment to the United States Constitution. Accordingly, the Court of Appeals addressed Crawford, holding that admission of the videotape violated Henderson's confrontation rights. It reversed his conviction but held that sufficient evidence remained to support his conviction, allowing remand for a new trial. Henderson, 35 Kan. App. 2d 241, Syl.¶ 1.
Three months later, on June 19, 2006, while both parties' petitions for review to this court were pending, the United States Supreme Court released Davis v. Washington, ___ U.S. ___, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), another Confrontation Clause case. We granted review, and the State filed a supplemental brief addressing Davis.
Additional facts will be supplied as necessary to the analysis.
ANALYSIS
Issue 1: Henderson's right to confrontation was violated when the jury watched the videotaped interview.
Standard of review
The State argues the Court of Appeals erred in reversing Henderson's conviction and remanding for a new trial by holding F.J.I.'s videotaped statement was testimonial. Henderson responds that the statement was testimonial and should have been excluded. Both sides essentially acknowledge that although Davis, 165 L. Ed. 2d 224, and Crawford, 541 U.S. 36, postdate Henderson's trial, both decisions apply to the instant case. See State v. Meeks, 277 Kan. 609, 613-14, 88 P.3d 789 (2004) (applying Crawford to direct appeals pending at the time the decision was issued).
The Sixth Amendment's Confrontation Clause provides that "'[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" Crawford, 541 U.S. at 42. The Sixth Amendment is applied to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403-06, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). Similarly, the Kansas Constitution provides a criminal defendant the right "to meet the witnesses face to face." Kan. Const. Bill of Rights, § 10. Whether a defendant's right to confrontation has been violated is a question of law subject to unlimited review. See State v. Nguyen, 281 Kan. 702, 714, 133 P.3d 1259 (2006) (when the underlying facts are undisputed, this court's review of whether a Confrontation Clause issue arose is de novo).
The test for "testimonial"
In Crawford, 541 U.S. 36, the defendant was charged with assault and attempted murder for stabbing Kenneth Lee, who had allegedly tried to rape Crawford's wife. After he was arrested, both Crawford and his wife gave statements to police. At trial, Crawford's wife did not testify due to the marital privilege. When Crawford asserted self-defense, the State sought to rebut Crawford's theory with his wife's recorded statement to police that she did not see anything in the victim's hand when Crawford attacked him. The trial court admitted the statement, finding that there were "adequate indicia of reliability" as required by Ohio v. Roberts, 448 U.S. 56, 66, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980).
The United States Supreme Court reversed Crawford's conviction and clarified the test for confrontation issues: If the declarant is unavailable to testify at trial, and the declarant's statement is "testimonial," then the testimony is not admissible unless the defendant had a prior opportunity to cross-examine the declarant. 541 U.S. at 59. The Court opined: "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." 541 U.S. at 69. In Meeks, 277 Kan. at 613-14, we acknowledged that Crawford "substantially altered the Confrontation Clause analysis" of Ohio v. Roberts, 448 U.S. 56, and Roberts' resultant Kansas case law.
Because (1) F.J.I.'s videotaped statement was made out of court, (2) she was unavailable due to her inability to fully understand the duty to tell the truth, and (3) Henderson had no opportunity to cross-examine, the parties agree that per Crawford, the dispositive issue for this court to determine is whether F.J.I.'s statement was testimonial. While Crawford expressly declined to provide a comprehensive definition, it observed that at a minimum the term included "statements taken by police officers in the course of interrogations." 541 U.S. at 52.
The Crawford Court also held that various formulations of the core class of testimonial statements included "pretrial statements that declarants would reasonably expect to be used prosecutorially" and "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." 541 U.S. at 51-52. We focused on this Crawford language in State v. Lackey, 280 Kan. 190, 201, 120 P.3d 332 (2005), cert. denied 164 L. Ed. 2d 399 (2006), to hold that an officer's interview with a witness conducted during the police investigation resulted in a testimonial statement because "an objective witness would think [it] would be used for trial and could arguably be construed as a police interrogation."
Two years after Crawford, the United States Supreme Court revisited the Crawford testimonial analysis in Davis, 65 L. Ed. 2d 224. That case actually involved two consolidated cases: Davis v. Washington and Hammon v. Indiana.
In Davis, the statement at issue was a portion of the victim's 911 call. The caller told the 911 operator that defendant Davis had hit her; later in the conversation she stated that Davis had "'just r[un] out the door.'" 165 L. Ed. 2d at 234. At trial, although the victim did not testify, the statement was admitted over Davis' objection that it violated his right to confrontation.
In Hammon, the statement at issue was made to officers at the victim's home. After police responded to a reported domestic disturbance, the victim wrote a statement detailing Hammon's abusive conduct. The victim did not testify at trial. Nevertheless, an officer authenticated the statement and also testified about what the victim told him. Hammon repeatedly objected to admission of the evidence.
In analyzing the facts of Davis and Hammon, the Supreme Court again expressly declined to provide a comprehensive definition of "testimonial." 165 L. Ed. 2d at 237. However, the Court enunciated a general test to help resolve the specific facts presented there:
"Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Emphasis added.) 165 L. Ed. 2d at 237.
The Davis Court clarified that in Crawford it had considered testimonial hearsay in the context of law enforcement officers' interrogations: "interrogations solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator. The product of such interrogation . . . is testimonial." 165 L. Ed. 2d at 239-30. It also observed that "'[a]n accused who makes a formal statement to governmental officials bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.'" 165 L. Ed. 2d at 238 (quoting Crawford, 541 U.S. at 51).
The Court observed that the inquiry in both the Davis and Hammon cases also took into account several factors, including: (1) whether the declarant was speaking about events as they were actually happening, instead of describing past events; (2) whether the declarant made the statement while in immediate danger, i.e., during an ongoing emergency; (3) whether the statement was made in order to resolve an emergency or simply to learn what had happened in the past; and (4) the level of formality of the statement. 165 L. Ed. 2d at 240. After looking at these factors, the Court concluded that the victim's statement in response to a 911 operator's interrogation (Davis) was not testimonial; however, the woman's written statement to police (Hammon) was testimonial. 165 L. Ed. 2d at 240-42.
In the instant case, the parties contend that the Davis/Hammon test controls, which they characterize as determining whether, objectively considered, the interview's primary purpose is to establish or prove past events potentially relevant to later criminal prosecution. We generally agree. As the United States Supreme Court stated:
"The question before us in Davis, then, is whether, objectively considered, the interrogation that took place in the course of the 911 call produced testimonial statements. . . .
. . . .
"We conclude from all this that the circumstances of McCottry's interrogation [in Davis] objectively indicate its primary purpose was to enable police assistance to meet an ongoing emergency. . . .
". . . Objectively viewed, the primary, if not indeed the sole, purpose of the investigation [in Hammon] was to investigate a possible crime–which is, of course, precisely what the officer should have done. . . .
". . . [T]hese features certainly strengthened the statements' testimonial aspects [and] made it more objectively apparent . . . that the purpose of the exercise [in Hammon] was to nail down the truth about past criminal events." (Emphasis added.) 165 L. Ed. 2d at 239-42.
Indeed, at least one commentator has observed that Davis evidenced a fundamental shift in the guidance provided by Crawford :
"The Davis . . . reasoning represents a conspicuous departure from the Crawford ruling. The Crawford Court had focused on the mindset of the declarant: Did she give her statement under circumstances in which she could foresee the later prosecutorial use of her words? [Citing 541 U.S. at 65-69.] The Davis opinion shifted the focus from the declarant's state of mind to the officers' purpose in questioning the declarant." Lininger, Reconceptualizing Confrontation after Davis, 85 Tex. L. Rev. 271, 280 (December 2006) (citing Davis, 165 L. Ed. 2d at 237).
Davis did not address, however, what part, if any, the mindset of the declarant still plays in the testimonial calculus, much less the mindset of a child declarant as in the instant case. On the one hand, the Missouri Supreme Court has characterized the Davis test as "an objective, totality of the circumstances test" and apparently still considered in its calculus the 4-year-old victim's awareness that her statements could be used to prosecute. State v. Justus, 205 S.W.3d 872, 879 (Mo. 2006); see People v. Learn, 371 Ill. App. 3d 701, 712-20, 863 N.E.2d 1173 (2007) (Grometer, J., specifically concurring) (young age of declarant apparently no obstacle to examining her state of mind or how a reasonable person in her position would regard the statement).
On the other hand, the Idaho Court of Appeals has held that the test based upon the declarant's expectations has been discredited by Davis. State v. Hooper, 2006 WL 2328233, unpublished opinion filed August 11, 2006 (Idaho App. 2006), rev. granted January 18, 2007. In between these two viewpoints is State v. Rangel, 199 S.W.3d 523, 532-35 (Tex. App. 2006), rev. granted December 20, 2006, which considered the 4-year-old declarant's expectations. Then, in the alternative, it essentially determined the expectations unnecessary under its facts and a state statute: "[R]egardless of what the 4-year-old girl thought her statements would be used for, i.e., that they could be used against appellant as evidence in a criminal case, they were clearly admitted at trial to function as testimony against appellant." 199 S.W.3d at 535.
The amicus American Prosecutors Research Institute urges us to adopt an age-equivalent standard when determining whether a child's statement is testimonial. In support, it cites six studies evaluating what children understand about court and court-related concepts. Like the Court of Appeals, we expressly reject its specific argument that the videotaped interview was not testimonial solely because a 3-year-old child would have no reasonable expectation her statements will later be used at trial. We observe that its arg