S056089, Opinion — State ex rel Juv. Dept. v. S. P.

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Argued and submitted January 13, decision of Court of Appeals affirmed; finding of
juvenile court of jurisdiction on ground that youth engaged in conduct that, if
committed by an adult, would constitute first-degree sodomy reversed;
finding of juvenile court of jurisdiction on other grounds affirmed, and
case remanded to juvenile court for further proceedings August 13, 2009

In the Matter of S. P.,
a Youth.

STATE ex rel JUVENILE DEPARTMENT
OF MULTNOMAH COUNTY,
Petitioner on Review,
v.
S. P.,
Respondent on Review.
(CC 2004812301; CA A129435; SC S056089)
215 P3d 847

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CJS, Infants § 51.

# En Banc

On review from the Court of Appeals .*

Janet A. Metcalf, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.

Rebecca Duncan, Assistant Chief Defender, Salem,
argued the cause and filed the brief for respondent on review.
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.

DURHAM, J.

The decision of the Court of Appeals is affirmed. The find-
ing of the juvenile court of jurisdiction on the ground that
youth engaged in conduct that, if committed by an adult,
would constitute first-degree sodomy is reversed. The finding
of the juvenile court of jurisdiction on other grounds is
affirmed, and the case is remanded to the juvenile court for
further proceedings.

\* Appeal from Multnomah County Circuit Court, Katherine Tennyson, Judge.
218 Or App 131, 178 P3d 318 (2008).

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# DURHAM, J.

This juvenile court delinquency proceeding comes
before us on a question of federal constitutional law. In
Crawford v. Washington, 541 US 36, 124 S Ct 1354, 158 L Ed
2d 177 (2004), the United States Supreme Court held that
the Sixth Amendment to the United States Constitution for-
bids the admission of testimonial hearsay in a criminal trial,
unless the declarant is unavailable and the defendant has
had a prior opportunity to cross-examine.1 See also Melendez-
Diaz v. Massachusetts, 557 US_, 129 S Ct 2527, 174
L Ed 3d 314 (2009) (applying Crawford). In this case, we are
asked to determine whether hearsay statements, made by a
three-year-old victim of sexual abuse to staff members at the
CARES Northwest2 program, are "testimonial." The Court of
Appeals determined that such statements are testimonial,
and held that the juvenile court erred in admitting them at
youth's hearing to determine the court's jurisdiction. State ex
rel Juv. Dept. v. S. P., 218 Or App 131, 178 P3d 318 (2008).
We review that decision for errors of law. ORS 19.415(4).3 For
the following reasons, we affirm the decision of the Court of
Appeals.

# I. FACTS

On June 10, 2004, the victim, N, visited the home of
his paternal grandparents. Youth, an acquaintance of the
family, also was present. At some point that day, youth and N

1 The Confrontation Clause of the Sixth Amendment applies to delinquency
proceedings in a state's juvenile court. In re Gault, 387 US 1, 56-57, 87 S Ct 1428,
18 L Ed 2d 527 (1967). See also Carey v. Population Services International, 431 US
678, 692 n 14, 97 S Ct 2010, 52 L Ed 2d 675 (1977) (confirming right of minors to
"the rights to notice, counsel, confrontation, and cross-examination, and not to
incriminate oneself, * * ** citing Gault). The parties in this case have proceeded on
the assumption that youth is entitled to the protection of the right of confrontation
under Article I, section 11, of the Oregon Constitution, and we adopt the same
assumption.

2 CARES is an acronym for "Child Abuse Response Services," according to wit-
ness Dr. Heiferman. The Court of Appeals described an earlier meaning of the acro-
nym as "Child Abuse Response and Evaluation Services." State ex rel Juv. Dept. v.
S. P., 218 Or App 131, 133 n 1, 178 P3d 318 (2008).

3 ORS 19.415 provides, in part:

"(4) When the Court of Appeals has tried a cause anew upon the record,
the Supreme Court may limit its review of the decision of the Court of Appeals
to questions of law."

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were alone together in a bedroom, watching television, while
the adults were in another room. That evening at home, N
stated to his parents, without prompting, "I don't want to bite
[youth's] penis." N's parents asked N to repeat what he had
said, and N repeated that he did not want to bite youth's
penis. N also stated that youth had touched his penis. When
N's father asked if anything else had happened, N put his
hand down the front of his diaper and touched his penis.

That evening, N's father called the Department of
Human Services (DHS). DHS instructed N's father to take N
to a pediatrician for a referral to CARES. The following day,
N's mother took N to his regular pediatrician. During that
visit, N did not make any statements about being touched.
The pediatrician advised N's mother to schedule an evalua-
tion with CARES.

N's mother contacted CARES and reported what had
happened to an intake worker. The intake worker also spoke
with a DHS representative, McCarthy, who faxed a report to
CARES describing the earlier report from N's father. McCarthy
also stated that she would cross-report the matter to the
Multnomah County Child Abuse Team. CARES staff dis-
cussed the case and determined that because N "was not
talked to in the context of the exam and because DHS needs
clarification of the allegations," it was appropriate to sched-
ule an evaluation of N. The intake worker then contacted N's
mother and scheduled an evaluation for that same day. The
worker also called DHS to confirm that McCarthy would
attend the evaluation.

The evaluation team consisted of Heiferman, a
pediatrician, and Findlay, a social worker. McCarthy and
another DHS worker attended, but were unable to stay for
the entire evaluation. A Clackamas County Sheriff's Deputy,
Krummenacker, also attended the evaluation "as a courtesy
to the Portland Police Bureau." N's mother filled out a writ-
ten questionnaire and answered several questions regarding
N's medical and personal history. Krummenacker was not in
the room with N's mother during that part of the evaluation,
but observed it through a one-way mirror.

Heiferman and Findlay then conducted an exami-
nation and interview with N, without his mother present.

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Again, Krummenacker was not in the room, but was able to
monitor the evaluation by microphone. Heiferman conducted
a physical examination of N and found nothing abnormal.
She then conducted what she called a "body review," which
consisted of a series of questions to N. Heiferman asked N if
anyone had hurt various parts of his body, such as his head,
eye, neck, or belly. N answered "no" to each question. She
asked if anyone had touched his penis or his buttocks, and
again, he answered "no." She asked if his mom was worried
about him, and he answered "no." She asked if there was any-
one that he was afraid of, and he said, "No. I got a jellyfish at
home." N continued to respond "no" to various questions
about his home and friends.

At that point, Heiferman and Findlay became con-
cerned that N was giving what they referred to as a "pat-
terned response," meaning that N was giving the same
answer to the questions without understanding them.
Findlay then told N that N's mother was worried that some-
one had touched his penis, and asked N if anyone had done
that. N responded that youth "already did" and that youth
"was trying to suck it." When Findlay asked what youth tried
to suck it with, N responded, "His mouth." Findlay asked if
youth had sucked it, and N said "yes." N also made repetitive
grabbing motions to his crotch and indicated that youth had
grabbed it. At that point, N said that he wanted to see his
mother, and Findlay ended the interview.

Heiferman and Findlay then met to review their
findings and discuss treatment recommendations. They were
joined by Krummenacker and by Smith, another social
worker. Heiferman's diagnosis was "highly concerned for sex-
ual abuse." The evaluation team recommended no further
contact between N and youth, and advised that N's parents
monitor his behavior, but did not recommend therapy. The
team also recommended "further investigation by DHS and
law enforcement into these allegations of abuse." The team
then provided N's mother with a summary of the evaluation.
Deputy Krummenacker did not participate in making treat-
ment recommendations, but did meet with N's mother "to
discuss the ongoing investigation."

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Subsequently, detectives assigned to the Multnomah
County Child Abuse Team interviewed youth. CARES had
provided the detectives with a copy of the CARES evaluation
report, and the detectives referred to it during the interview.
Youth initially denied any sexual contact with N, but ulti-
mately admitted to touching and sucking on N's penis.

The state filed a petition in juvenile court, alleging
that youth had committed acts that, if performed by an adult,
would constitute first-degree sodomy and first-degree sexual
abuse. The case proceeded to trial and the parties stipulated
that N lacked competency as a witness and, for that reason,
would be unavailable to testify. The state announced its
intent to offer into evidence the statements that N had made
during his evaluation at CARES, and statements that he had
made to his parents. Youth objected, arguing that both
groups of statements were inadmissible under the Oregon
Evidence Code, and that admission of the statements to
CARES would violate the Confrontation Clause of the Sixth
Amendment, as interpreted in Crawford.

The juvenile court ruled that all of N's statements
were admissible under the Oregon Evidence Code. The court
further held that the bulk of N's statements to CARES was
not barred from evidence by Crawford, because they were not
testimonial statements; as an exception, however, the court
determined that N's identification of youth as the perpetrator
was a testimonial statement. After the presentation of evi-
dence, the court found that youth was within its jurisdiction
for acts that, if committed by an adult, would constitute first-
degree sodomy and first-degree sexual abuse.

Youth appealed, arguing that the juvenile court had
erred in admitting the statements described above. First,
youth argued that N's statements to his parents and to
CARES were hearsay and not admissible under the exception
for statements concerning acts of abuse, OEC 803(18a)(b).
Specifically, youth argued that, under State v. Campbell, 299
Or 633, 705 P2d 694 (1985), the trial court erred by accepting
the parties' stipulation that N was unavailable as a witness,
rather than making an independent determination as to N's
unavailability. Second, youth argued that N's statements to
CARES were inadmissible under the hearsay exception for

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statements for purposes of medical diagnosis and treatment,
provided at OEC 803(4). Finally, youth renewed his argu-
ment that N's statements were "testimonial" under the Sixth
Amendment and, as such, were not admissible because youth
had not had a prior opportunity to cross-examine N.

The Court of Appeals held that youth's arguments
based on OEC 803(18a)(b) and Campbell were unpreserved
and declined to review them as error apparent on the face of
the record. Because the Court of Appeals upheld the juvenile
court's ruling that N's statements were admissible under
OEC 803(18a)(b) and Campbell, youth's argument regarding
OEC 803(4) was of no consequence. However, the Court of
Appeals then held that youth's statements to the CARES rep-
resentative were testimonial, and thus inadmissible under
the Confrontation Clause of the Sixth Amendment. The court
determined that, under Davis v. Washington, 547 US 813,
126 S Ct 2266, 165 L Ed 2d 224 (2006), "the purpose of the
questioner in eliciting statements is a key focus of the
inquiry" as to whether a statement is testimonial. S. P., 218
Or App at 145. However, the court went on to observe that,
when an interview serves more than one purpose, "the
nature and extent of police or prosecutorial involvement in
that process is a very substantial-indeed, potentially deci-
sive-consideration" as to what that purpose was. Id. at 149.
Likewise, under certain circumstances, the declarant's rea-
sons for making a statement also could be relevant to the
question of whether a statement is testimonial. Id. at 145.

The court then examined both the interview in this
case and the CARES program in general, and determined
that the interview served two purposes: to obtain information
for a medical diagnosis of abuse, and to preserve an accurate
account of that abuse for possible future prosecutions. Those
two purposes were "concurrent and coequal; both are 'pri-
mary' in the sense that neither takes precedence over the
other." Id. at 154. Because a primary purpose of the interview
was to "establish or prove past events potentially relevant to
later criminal prosecution," the Court of Appeals determined
that N's statements during that interview were testimonial.
Id. at 154-55 (quoting Davis, 547 US at 822). Likewise, the
court determined that N's purpose in making his statements
was immaterial, "[p]utting aside the difficulties of assessing

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the mind of a three-year-old (much less one stipulated to be
unavailable to testify at the juvenile hearing six months later
'by reason of competency') * * *. " Id. at 155.

Accordingly, the Court of Appeals determined that
the juvenile court erred by admitting N's statements to
CARES into evidence. The Court of Appeals then vacated the
juvenile court's finding of jurisdiction based on conduct that,
if committed by an adult, would constitute first-degree sod-
omy. Id. at 158. However, the Court of Appeals affirmed the
juvenile court's finding of jurisdiction based on conduct that,
if committed by an adult, would constitute first-degree sexual
abuse; the Court of Appeals determined that other evidence
established that basis for jurisdiction beyond a reasonable
doubt. Id. at 157.

The state seeks review of the decision of the Court of
Appeals, advancing three primary arguments for reversal.
First, the state argues that only statements made to police
officers and government officials are "testimonial" under
Crawford and Davis. Because N made the statements at
issue to a pediatrician and a social worker, the state asserts
that his statements were not testimonial. Second, the state
argues that statements made during an interview are testi-
monial only if the "primary purpose" of the interview is to
establish past events relevant to criminal prosecution. In the
instant case, the state asserts that N's statements were not
testimonial, because the primary purpose of his interview at
CARES was to diagnose sexual abuse and make treatment
recommendations. Third, the state argues that whether a
statement is testimonial depends on the purpose of the
declarant, not the questioner. The state asserts that there is
"nothing to suggest" that N's purpose "was anything other
than to undergo a medical examination and to answer the
questions first put by the doctor and then by the social
worker."

Youth responds that N's statements were testimo-
nial, because they were formal statements made to persons
conducting interviews about potentially criminal past con-
duct in coordination with the police. Youth asserts that nei-
ther the declarant's intent nor the questioner's is dispositive

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as to whether a statement is testimonial. Rather, "the fun-
damental question is whether the statement is a formal
assertion of historical fact."

# II. DISCUSSION

## A. Issues of Oregon Law

On review, the parties focus their arguments on the
Confrontation Clause of the Sixth Amendment. However, we
will address arguments based on the laws of our state before
reaching a claim that those laws fall short of a federal consti-
tutional requirement. Otherwise, we risk "wast[ing] a good
deal of time and effort of several courts and counsel and need-
lessly spur[ring] pronouncements by the United States
Supreme Court on constitutional issues of national impor-
tance in a case to whose decision these may be irrelevant."
State v. Kennedy, 295 Or 260, 264-65, 666 P2d 1316 (1983).
We will not allow parties, by the manner in which they frame
the issues on review, to "force the court into a position to
decide that the state's government has fallen below a nation-
wide constitutional standard, when in fact the state's law,
when properly invoked, meets or exceeds that standard." Id.
at 266-67.

Accordingly, we begin by addressing youth's argu-
ment that N's statements to CARES constituted inadmissible
hearsay, and that those statements were not admissible
under OEC 803(18a)(b) and Campbell. The thrust of youth's
argument is that, under Campbell, the trial court was obli-
gated to make an independent determination that N was
unavailable as a witness, rather than accepting youth's own
stipulation to that fact.4

Campbell presented a set of facts similar to those at
issue here. Before the defendant's trial for first-degree sod-
omy, the defendant and the state stipulated that the three-
year-old-victim lacked competency to testify as a witness.
The state then introduced hearsay statements that the vic-
tim had made to her mother, implicating the defendant. On

4 Youth cites OEC 803(18a)(b), but bases his appellate argument almost
entirely on Campbell, and does not explain how OEC 803(18a)(b) would result in
the exclusion of N's statements to CARES. Accordingly, we do not separately ana-
lyze that rule.

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review, this court held that those statements were admissible
under the existing version of OEC 803(18a), as "complaints of
sexual misconduct." Campbell, 299 Or at 646.

The defendant then argued that admission of the
child's statements violated his right to confrontation under
Article I, section 11, of the Oregon Constitution. To analyze
that question, this court adopted the since-rejected reasoning
of the United States Supreme Court in Ohio v. Roberts, 448
US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980):

"In Ohio v. Roberts, supra, the United States Supreme
Court established a two-part test for determining whether
admission of out-of-court statements of a witness who does
not testify at trial satisfies the defendant's right to confron-
tation. First, the declarant must be unavailable and, sec-
ond, the declarant's out-of-court statements must have
'adequate indicia of reliability.' Justice [Blackmun] stated
with apparent concurrence of the entire court that
'[r]eliability can be inferred without more in a case where
the evidence falls within a firmly rooted hearsay exception.'
He added that in other cases the evidence 'must be
excluded, at least absent a showing of particularized guar-
antees of trustworthiness.'"

Campbell, 299 Or at 648 (citing Roberts, 448 US at 66).5
Using that test, this court determined that complaints of sex-
ual misconduct fell within an "ancient and firmly rooted
hearsay exception," and, therefore, had adequate indicia of
reliability. Id. at 650.

That left the question of whether the declarant was
"unavailable." As mentioned above, the parties had stipu-
lated to the fact that the victim was incompetent to testify.
The defendant, however, insisted that he had not stipulated
to the victim's unavailability, and accordingly, he had not
waived any right to confront her. This court determined that
the defendant's stipulation had no effect, because it was the
trial court's responsibility to ensure that the witness was
unavailable:

" In Melendez-Diaz, the United States Supreme Court describes Ohio v.
Roberts as resting on a "since-rejected theory that unconfronted testimony was
admissible as long as it bore indicia of reliability * * * " 557 US ._ , 129 S Ct
at 2533.

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"We believe that the question of unavailability of a hear-
say declarant supposedly due to incompetency should not
be left to the advocates in a criminal trial. The prosecution
would be relieved from calling the witness and the defense
relieved from having the witness appear for trial. If the
court is going to admit hearsay statements against a defen-
dant to satisfy the confrontation rights of an accused, the
court must ensure the declarant is in fact unavailable.

"We hold, therefore, that before any out-of-court decla-
ration of any available living witness may be offered
against a defendant in a criminal trial, the witness must be
produced and declared incompetent by the court to satisfy
either Article I, section 11, of the Oregon Constitution, or
the Sixth Amendment to the United States Constitution.
This ruling on competency was not undertaken in this case
and, therefore, the case must be reversed and remanded to
the trial court for such a determination."

Id. at 651-52 (footnote omitted).

In this case, youth argued to the Court of Appeals
that, even though he had stipulated to N's unavailability as a
witness in the juvenile court, Campbell required the juvenile
court to evaluate N and determine whether he was compe-
tent to testify. Youth insisted that, because the juvenile court
had failed to do so, the Court of Appeals had to remand the
case for a new trial.

The state responded that, for a variety of reasons,
youth failed to preserve that argument and that it was not
reviewable as error apparent on the face of the record. The
Court of Appeals came to a similar conclusion. First, the
Court of Appeals stated that youth's argument primarily
relied on OEC 803(18a)(b), rather than on the Confrontation
Clause of Article I, section 11, as the argument in Campbell
had. The court also noted that Campbell did not address the
question of whether the defendant had preserved or invited
the trial court's error. Finally, the court observed that subse-
quent decisions of this court appeared to contradict an
implicit premise of Campbell in holding that "criminal defen-
dants routinely waive trial-related constitutional rights for a
variety of tactical and strategic reasons." S. P., 218 Or App at

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140-41. For those reasons, the court concluded that the juve-
nile court had not made an error that was apparent on the
face of the record, because the proper application of Campbell
was not "obvious" and was "reasonably in dispute." Further-
more, the court held, in light of the "manifest potential" that
youth had made a strategic decision to stipulate to N's una-
vailability, the court held that it would not exercise discretion
to review such a claim of error. Id. at 142.6

The state's argument requires that we examine
Campbell to determine whether the court reached a hold-
ing-that is, a legal determination that carries precedential
effect-on the question whether a party asserting on appeal a
violation of the state and federal confrontation clauses must
have preserved that argument below. Campbell held that the
state and federal confrontation clauses required a trial court,
before admitting out-of-court declarations of any potentially
available living witness in a criminal trial, to examine the
witness and declare the witness incompetent and, therefore,
unavailable. Campbell also held that the trial court was
bound by that requirement even though the defendant had
stipulated to the incompetence of the witness. The court rea-
soned that reversal was necessary solely because the trial
court had not determined whether, on the basis of an exami-
nation by the trial court, the witness was incompetent to
testify:

"This ruling on competency was not undertaken in this
case and, therefore, the case must be reversed and
remanded to the trial court for such a determination."

Id. at 652.

It is clear that, in Campbell, this court provided
guidance to trial courts regarding the correct administration
of the confrontation right. It is equally clear that Campbell
does not address expressly the question whether a party
asserting on appeal that a trial court failed to follow the

6 An appellate court will not review an unpreserved claim of error unless the
error (1) is an error "of law," (2) is "apparent," meaning that it is obvious or not
reasonably in dispute, and (3) appears "on the face of the record." Ailes v. Portland
Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). Even if an error meets
those criteria, the decision to review the error remains in the discretion of the
appellate court. Id. at 382.

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directives in Campbell first must demonstrate that the claim
of error was preserved in the trial court. The Campbell
court's disposition-reversing and remanding the case for a
trial court determination on witness competency notwith-
standing the parties' stipulation that the witness lacked com-
petency-creates an implication that the court did not
require preservation of the asserted error. But, despite that
permissible inference, we are reluctant to ascribe the prece-
dential effect of a holding to what is at most an ambiguity
that the Campbell opinion does not address or otherwise
resolve. Instead, in our view, the state's objection to youth's
failure to preserve the question below, and youth's response
that Campbell describes trial court obligations that require
no demand or objection by youth, together pose an open ques-
tion to this court.

This court will determine, sua sponte, whether the
issues before it were preserved at trial. See State v. Wyatt,
331 Or 335, 345-47, 15 P3d 22 (2000) (holding that the Court
of Appeals should not have considered an unpreserved claim
of error, even though the parties had stipulated that the
claim was preserved). We take on that responsibility to serve
two policy goals. First, the preservation requirement is
important to judicial efficiency. If a party objects to an action
or decision of the trial court, the party must "permit the trial
judge a chance to consider the legal contention or to correct
an error already made." Shields v. Campbell, 277 Or 71, 77,
559 P2d 1275 (1977). Second, the preservation requirement
promotes fairness to the adversary parties. State v. Hitz, 307
Or 183, 188, 766 P2d 373 (1988).

Ignoring the preservation of error requirement in
this context, in our view, would frustrate both of those goals.
Youth did not notify the trial court, through an objection or
otherwise, that, in his view, the court's administration of his
confrontation right, including acceptance of the parties' stip-
ulation, fell short of the requirements stated in Campbell.
Likewise, youth did not alert the state regarding his claim
that the trial court had to make an independent determina-
tion of N's competence until he filed his appellate brief. Had
youth raised his objection in the trial court, it is likely that
the state would have made a different record on the question.

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Those facts support the Court of Appeals' view that the pres-
ervation principle applies to a claim on appeal that a trial
court's administration of the confrontation right fell short of
the requirements stated in Campbell.

Finally, we recently have held that, under other cir-
cumstances, a defendant may forfeit the right of confronta-
tion by "affirmatively establishing" that a decision of the trial
court is "not objectionable":

"There is nothing unlawful about the admission of hearsay
evidence, even in a criminal case where the constitution
affords a right of confrontation. A lawyer's deliberate deci-
sion not to require that a witness testify in person at trial
may benefit the defendant in many circumstances. For
instance, an adverse declarant's testimony may have a
more persuasive effect in person than it would when
relayed by a third party. Or, a defendant may not contest
the testimony of the declarant, and, in that circumstance,
defense counsel may wish to avoid the time and attention
that in-person testimony would entail. When the record dis-
closes, as it does here, that a lawyer for a defendant has
made an explicit decision not to make an evidentiary objec-
tion that otherwise could have been asserted, reviewing
courts will not provide refuge from that deliberate choice on
direct appeal."

State v. Steen, 346 Or 143, 155, 206 P3d 614 (2009) (footnote
omitted). We cannot reconcile that passage from Steen with a
rule that would allow a party, after making an "explicit deci-
sion" to stipulate to the incompetence of a witness at trial, to
argue that the trial court's decision, in consequence of the
stipulation, to declare that a witness lacks capacity and is
unavailable as a witness is a basis for reversal on appeal.

In light of the foregoing, the Court of Appeals did not
err in concluding that youth's Campbell-based objection was
unpreserved. The Court of Appeals also concluded that
youth's objection is not reviewable as error apparent on the
face of the record. See ORAP 5.45(1), which provides, in part:

"No matter claimed as error will be considered on
appeal unless the claimed error was preserved in the lower
court and is assigned as error in the opening brief in accor-
dance with this rule, provided that the appellate court may
consider an error of law apparent on the face of the record."

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This court has determined that it will not exercise its discre-
tion to review an asserted plain error if the party seeking
review encouraged commission of the error in question or
made a strategic choice not to object. State v. Fults, 343 Or
515, 523, 173 P3d 822 (2007). In Clay/Luttrell v. Pay Less
Drug Stores, 276 Or 673, 677, 556 P2d 125 (1976), this court
said that "invited error is not a basis for reversal." In view of
those authorities, the Court of Appeals correctly declined to
review youth's objection under Campbell as error apparent
on the face of the record. To paraphrase Steen, youth made an
explicit decision to stipulate to N's unavailability at trial, and
he may not seek refuge from that deliberate choice on appeal.

To summarize, the trial court held that N's hearsay
statements to both his parents and to CARES were admissi-
ble as statements concerning sexual abuse under OEC
803(18a)(b). Because youth failed to preserve his challenge to
that ruling, we do not disturb it on review. Accordingly, we
need not consider youth's alternative argument that N's
statements to CARES were not admissible under OEC
803(4).7

As part of the "first things first" methodology, we
also consider state constitutional issues before we consider
federal claims. Campbell, 299 Or at 647. Here, however,
Campbell forecloses any such claim. As mentioned earlier,
Campbell held that under Article I, section 11, of the Oregon
Constitution, a child's complaints about another's sexual
misconduct have adequate indicia of reliability, because
those complaints fall within an ancient and firmly rooted
hearsay exception. Id. at 650-51. Such complaints are admis-
sible at trial if the declarant is unavailable as a witness. Id. at
648. Youth stipulated to N's unavailability at trial, and is

7 Youth appears to base his argument regarding the unavailability of the wit-
ness entirely on Campbell, and does not identify any statutory basis under OEC
803(18a)(b) for holding that the trial court was required to reject his stipulation to
N's unavailability. Accordingly, we do not address any such argument. We note,
however, that OEC 803(18a)(b) provides that a trial court "shall" examine a declar-
ant in chambers to determine whether the declarant is unavailable, "unless other-
wise agreed by the parties."

Youth did argue, before the Court of Appeals, that the juvenile court's findings
concerning "indicia of reliability" under OEC 803(18a)(b) were insufficient. The
Court of Appeals rejected that argument without discussion. On review, we do the
same.

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precluded from challenging that stipulation on appeal.
Therefore, Campbell appears to allow for the admission of N's
statements under Article I, section 11, and neither youth nor
the state argues that Campbell was wrongly decided.8
Accordingly, we turn to the question of whether the admis-
sion of N's statements violated the Confrontation Clause of
the Sixth Amendment.

## B. Issues of Federal Law

The Sixth Amendment to the United States Consti-
tution provides, in part:

"In all criminal prosecutions, the accused shall enjoy the
right * * * to be confronted with the witnesses against him

In Crawford, the United States Supreme Court held that the
Sixth Amendment prohibits the admission of "testimonial"
statements of witnesses absent from a criminal trial, unless
the declarant is unavailable and the defendant has had a
prior opportunity to cross-examine. 541 US at 59. The Court
fashioned that holding in order to address the "principal evil"
targeted by the Confrontation Clause, which was the "use of
ex parte examinations as evidence against the accused." Id. at
50.

The Court did not offer a comprehensive definition of
a "testimonial" statement, but it did offer suggestions as to
the meaning of that term. The Court observed that "testi-
mony" is "[a] solemn declaration or affirmation made for the
purpose of establishing or proving some fact." Id. at 51 (inter-
nal quotation marks omitted). A "formal statement to govern-
ment officers" constitutes testimony, while a "casual remark

8 As mentioned above, Campbell held that Article I, section 11, of the Oregon
Constitution allows the admission of hearsay in a criminal trial when the declarant
is unavailable and the declarant's statements have adequate indicia of reliability.
That holding was based on the decision of the United States Supreme Court in
Roberts. The Court of Appeals correctly has observed that "in Crawford, the United
States Supreme Court abandoned the Confrontation Clause test from Ohio v.
Roberts on which Campbell was predicated." S. P., 218 Or App at 140. See also 346
Or at 601 n 5 (quoting Melendez-Diaz). Because neither party has raised the ques-
tion, we do not determine, at this time, whether Crawford and Melendez-Diaz cast
doubt on the continued validity of Campbell's analysis of the Confrontation Clause
of Article I, section 11. We point this out "so that our decision is not misunderstood
to foreclose any potential issue of state law for the future." Kennedy, 295 Or at 268.

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to an acquaintance" does not. Id. at 51. The Court then
offered two examples of statements that would qualify as tes-
timonial "under any definition": ex parte testimony at prelim-
inary hearings, and statements taken by police officers in the
course of interrogations. Id. at 52. The Court noted that such
formal statements were testimonial whether they were taken
by justices of the peace or police officers:

"The involvement of government officers in the production
of testimonial evidence presents the same risk, whether the
officers are police or justices of the peace."

Id. at 53. See also Melendez-Diaz, 557 US at __ , 129 S Ct at
2532 (applying Crawford in the context of laboratory ana-
lysts' affidavits confirming results of drug tests).

In Davis v. Washington, the Court offered an
expanded discussion of what constitutes a "testimonial"
statement. Davis consolidated two criminal cases, Davis v.
Washington and Hammond v. State, which dealt with the
admissibility of hearsay statements to a 9-1-1 operator and
hearsay statements to police officers investigating a report of
domestic disturbance.

The Court opened its analysis by offering the follow-
ing definition of testimonial statements:

"Statements are nontestimonial when made in the course of
police interrogation under circumstances objectively indi-
cating 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."

Davis, 547 US at 822. Although that definition focused on the
purpose of an "interrogation," the Court emphasized that
statements made in the absence of interrogation were not
necessarily nontestimonial: "[I]t is in the final analysis the
declarant's statements, not the interrogator's questions, that
the Confrontation Clause requires us to evaluate." Id. at 822-
23 n 1.

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The Court then applied that analysis to the facts of
the cases. The declarant in Davis had made her statements
over the phone in response to a 9-1-1 operator's questions,
stating that the defendant was "here jumpin' on me again"
and that he had "just r[un] out the door." As a preliminary
matter, the Court noted that "[i]f 9-1-1 operators are not
themselves law enforcement officers, they may at least be
agents of law enforcement when they conduct interrogations
of 9-1-1 callers." For purposes of the opinion-and without
ruling on the issue-the Court considered the acts of the 9-1-1
operator in Davis to be acts of the police. Id. at 823 n 2.

That said, four factors led the court to conclude that
the declarant's statements to the 9-1-1 operator were not tes-
timonial. First, the declarant was describing events "as they
were actually happening," rather than events that had
occurred in the past. Second, a reasonable listener would rec-
ognize that the declarant was "facing an ongoing emergency."
Third, the statements elicited from the declarant were nec-
essary to resolve a "present emergency," rather than "simply
to learn * * * what had happened in the past." Finally, the
declarant had not made her statements in a formal police
interview: rather, they "were provided over the phone, in an
environment that was not tranquil, or even * * * safe." Id. at
827 (emphasis removed). From those four factors, the Court
concluded that the primary purpose of the declarant's inter-
rogation by the 9-1-1 operator was to enable the police to deal
with an ongoing emergency. The declarant's statements were
not testimonial because she "simply was not acting as a wit-
ness; she was not testifying. * * * No 'witness' goes into court
to proclaim an emergency and seek help." Id. at 828 (empha-
sis in original).

In contrast, the declarant in the companion case had
made her statements to officers responding to a domestic dis-
turbance call when there was no emergency in progress. The
declarant's statements described "possibly criminal past con-
duct," after that conduct had occurred. There was no ongoing
emergency; the interrogating officer "had heard no argu-
ments or crashing and saw no one throw or break anything,"
and the declarant told the officers that there was "no imme-
diate threat to her person." The officers' interrogation of the
declarant was "formal" in that it took place in a separate

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room, away from the defendant; the declarant "deliberately
recounted, in response to police questioning, how potentially
criminal past events began and progressed"; and the interro-
gation took place after the end of the events that the declar-
ant was describing. Id. at 829-30. From those factors, the
Court concluded that the declarant's statements were testi-
monial, because "they do precisely what a witness does on
direct examination * * *. " Id. at 830 (emphasis in original).

From those cases, we draw two preliminary conclu-
sions regarding the arguments presented in this case. First,
the Court has not stated, explicitly, whether a statement can
be "testimonial" if it is made to anyone other than a judge or
a law enforcement officer. However, the Court in Davis was
willing to consider statements testimonial when the declar-
ant made them to someone acting as an agent of a law
enforcement organization, e.g., a 9-1-1 operator.

Second, although Davis holds that the testimonial
nature of a statement is determined by the "primary purpose
of the interrogation," it also holds that "even when interro-
gation exists, it is in the final analysis the declarant's state-
ments, not the interrogator's questions, that the Confrontation
Clause requires us to evaluate." Id. at 822, 823 n 1. In other
words, when the Court inquires into the primary purpose of
an interrogation, it does not focus exclusively on the ques-
tions asked or the subjective intent behind them.9 Rather, the
Court infers the purpose of the interrogation by objectively
examining the statements that the declarant makes and the
circumstances under which the declarant makes them. The
Court then determines whether those statements "do pre-
cisely what a witness does on direct examination," and
whether the circumstances of the statements are similar to
the ex parte examinations condemned in Crawford. Id. at
830. From that analysis, the Court infers the primary pur-
pose of the interrogation in much the same way that, for

9 That is not to say that the questions asked, or the subjective intentions of the
questioners, are not relevant to this inquiry. For example, the Davis Court noted in
its analysis of the companion case that one of the officers "expressly acknowledged"
that his questions were "part of an investigation into possibly criminal past con-
duct." Davis, 547 US at 829. Furthermore, any inquiry into the circumstances
under which a declarant made a statement, by definition, would have to include
consideration of questions to which the declarant was responding.

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example, a jury might infer a defendant's intentions from the
results of his actions.

Our cases have applied those principles. In State v.
Mack, 337 Or 586, 101 P3d 349 (2004), we considered a fac-
tual scenario nearly identical to that presented in Crawford.
Police attempted to interview a three-year-old child about an
alleged murder that he had witnessed, but they could not
establish a dialogue. A DHS caseworker assumed the pri-
mary role in questioning the child, while police videotaped
the interview. This court held that the child's statements fell
within the "core class" of statements that were testimonial
under Crawford, because for all intents and purposes, they
were made during police interrogation of a witness. Id. at
593.

Mack rejected a series of arguments similar to those
that the state raises here. First, the state asserted that the
child's statements to the caseworker were not testimonial,
because the caseworker was not a police officer. This court
responded that the caseworker was acting as an agent, or a
proxy, for the police when she elicited the statements from
the child. Second, the state asserted that the caseworker's
interview of the child lacked the "formality" that character-
izes testimonial evidence. This court responded that the
DHS caseworker had structured the interview "in an age-
appropriate way to elicit information from [the child] rele-
vant to the police investigation," and that she had done so "at
the request of the officers while they videotaped the inter-
views." For those reasons, this court concluded, the interview
was not meaningfully different from the interrogations in
Crawford. Id. at 594.

Finally, the state argued that whether or not the
child's statements were testimonial was a question of the
child's intent. This court responded that "the primary focus
in Crawford was on the method by which government offi-
cials elicited out-of-court statements for use in criminal tri-
als, not on the declarant's intent or purpose in making the
statement."10 This court acknowledged that in some situa-
tions, such as an unsolicited statement or an emergency call

10 In Crawford, the United States Supreme Court noted that, in White v.
Illinois, 502 US 346, 352-53, 112 S Ct 736, 116 L Ed 2d 848 (1992), the Court had

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to a government official, a declarant's intent may be relevant.
Mack, however, did not present such a scenario, and this
court concluded that the child's statements to the DHS case-
worker were testimonial. Id. at 594-95.

State v. Camarena, 344 Or 28, 176 P3d 380 (2008),
dealt more directly with the question of what makes a state-
ment "testimonial." The declarant, during a 9-1-1 call, stated
that the defendant had assaulted her "[l]ike a minute" before
the call. This court, as did the Court in Davis, assumed that
the 9-1-1 operator acted as an agent of the police. Id. at 37.
The Court of Appeals had held that the declarant's state-
ments were not testimonial, because the 9-1-1 operator's
questions were "calculated to determine whether an emer-
gency existed and the nature and extent of [the declarant's]
need for immediate assistance." Id. at 39-40 (quoting State v.
Camarena, 208 Or App 575, 589, 145 P3d 267 (2006)) (inter-
nal quotation marks omitted). In other words, the Court of
Appeals had attempted to follow the Supreme Court's direc-
tive to inquire into the "primary purpose of the interrogation"
by focusing on the intentions behind the questions asked.

On review, this court rejected the analysis used by
the Court of Appeals, emphasizing the Court's statement in
Davis that the Confrontation Clause requires analysis of "the
declarant's statements, not the interrogator's questions." Id.
at 40 (quoting Davis, 547 US at 822-23 n 1). This court then
applied the four factors listed in Davis to the facts of the case,
and found that: (1) the lapse of time between the assault and
the call was "insufficient to suggest that the danger of a
renewed assault had fully abated"; (2) a reasonable person
could infer "from [the declarant's] responses" that she faced
an emergency; (3) the declarant's responses were necessary
to help end that emergency; and (4) the environment from
which the declarant was calling was not tranquil or safe. In
short, an analysis of the declarant's statements, and the cir-
cumstances under which she made them, revealed that the
primary purpose behind her 9-1-1 interrogation was to
respond to an ongoing emergency. Accordingly, this court

considered but rejected a proposal to strictly confine the Confrontation Clause of
the Sixth Amendment to testimonial statements. Crawford, 541 US at 61.

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held that the declarant's initial 9-1-1 responses were nontes-
timonial, but the rest of her responses were testimonial,
because they were not necessary to resolve that emergency.
Id. at 40-41.

Thus, in Mack and Camarena, this court empha-
sized that whether a statement is testimonial depends on an
objective analysis of the contents and circumstances of the
statement, rather than an attempt to determine only the sub-
jective intentions of the questioner or the declarant. We infer
the purpose of an interrogation from the totality of the cir-
cumstances in which it took place and the results that it
yielded.

## C. Application to the Instant Case

With those legal principles in mind, we turn to our
analysis of the facts of this case. We begin, as did the Court of
Appeals, with a description of the CARES program. CARES
provides a setting for the diagnosis of whether a child has
been abused. The program is located in a medical office build-
ing across the street from Emanuel Hospital. The CARES
office consists of a waiting room and a series of rooms used for
examinations and interviews of children. The interview
rooms are equipped with one-way mirrors; observers may
watch interviews in secrecy from an adjacent viewing area.
The examination rooms do not have one-way mirrors, but
they are equipped with microphones in the ceiling that allow
others to listen to statements and audible sounds occurring
during an examination.

CARES personnel are trained to gather information
from children. Heiferman testified that her training in that
capacity is more than what a general pediatrician would
have. Both Heiferman and Findlay testified that it is very
common for law enforcement personnel to observe the staff
gathering information from parents, and interviewing possi-
ble victims, by means of the one-way mirrors and micro-
phones that are installed in the interview and examination
rooms.

After an evaluation is complete, the CARES staff
will make referrals to various treatment providers, based on
the victim's needs. CARES itself does not provide treatment,

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but provides the family of the victim with treatment recom-
mendations. CARES also routinely will provide law enforce-
ment with the results of its evaluations. In turn, law enforce-
ment personnel will send possible abuse victims to CARES.
Heiferman testified that approximately one-third of CARES
clients are referred by law enforcement, and another third
are referred by DHS.

Heiferman testified that the purpose of the CARES
program is the diagnosis and treatment of child abuse.
Findlay stated, more specifically, that one of the program's
goals is to "centralize" the process of interviewing abused
children:

"[O]ne of the primary goals of CARES is to sort of, I
guess you could say, centralize the evaluation process when
there is a concern of abuse, so that law enforcement and
DHS, other sort of members of the community that are also
going to be involved in the sort of the evaluation investiga-
tive process will be there present to hear firsthand what the
child says, so if they have specific questions from what a
child has said, they were there, they heard it.

"They may not have to, say, reinterview the child
themselves."

When asked why it was important to minimize the number of
interviews with a child, Findlay responded:

"Sometimes it's upsetting for a kid. Sometimes, you know, if
a kid is-we like to minimize the number of interviews, too.
If the kid is highly suggestible or has been asked a whole
bunch of very leading questions or something like that. So
that it will lessen the likelihood that the child's sort of state-
ments are going to be contaminated."

Against that background, we examine the circum-
stances of N's evaluation by CARES. After N made his initial
statement to his parents-"I don't want to bite [youth's]
penis"-his father telephoned DHS, who directed him to take
N to a pediatrician and obtain a referral to CARES. N's
mother took N to a pediatrician, who also suggested an eval-
uation at CARES. When N's mother contacted CARES for an
evaluation, the CARES intake worker contacted DHS. DHS,
in turn, reported the matter to the Multnomah County Child
Abuse Team. CARES staff discussed the case and decided to

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schedule an evaluation of N because "DHS needs clarification
of the allegations."

As noted above, Heiferman and Findlay took N's his-
tory from his mother and conducted their examination of N,
while Deputy Krummenacker observed from another room.
The deputy was present for N's treatment recommendations,
but did not participate. Afterwards, however, the deputy met
with N's mother to "discuss the ongoing investigation."
CARES provided a comprehensive written report of its find-
ings to the lead detective in N's case, who reviewed that
report before speaking with youth, and used statements from
that report to contradict youth when youth denied abusing N.

From those facts, the Court of Appeals drew two fac-
tual conclusions. First, the court observed that the CARES
interview process "serves multiple concurrent purposes."
One of those purposes is to determine whether a child has, in
fact, been sexually abused, in order to provide effective med-
ical and psychological treatment for the child. However,
CARES also enables police and child welfare authorities to
obtain credible evidence of abuse by minimizing the number
of interviews of a child victim, thus limiting the child's expo-
sure to suggestive questions and reducing the likelihood that
the child will make contradictory statements to different
interviewers.

Second, the Court of Appeals observed that the
involvement of law enforcement in the CARES process is
"pervasive." The court noted that a deputy had observed the
evaluation of N and the evaluation team's discussion of treat-
ment recommendations, and that he had met with N's
mother immediately afterwards to discuss the investigation.
The court also observed that, as a routine matter, CARES
provides police agencies with complete copies of its evalua-
tion reports. CARES had done exactly that in this case, and
one of the "treatment recommendations" in that report was to
urge "further investigation by DHS and law enforcement into
these allegations of abuse."

In addition to the evidence that was before the Court
of Appeals, youth submits further materials for this court's
consideration. First, youth offers, as additional authority, a
series of statutes from ORS 418.746 to 418.790, which

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describe the formation of multidisciplinary teams for the pur-
pose of investigating child abuse. Second, youth asks this
court to take judicial notice of a fiscal report filed in 2008 with
the Child Abuse Multidisciplinary Intervention (CAMI)
Program of the Oregon Department of Justice. The state does
not object to, or argue against, our consideration of either of
those materials.

We begin with the statutes. ORS 418.783 establishes
the CAMI program as a part of the Department of Justice.
That program serves the following purposes, listed under
ORS 418.783(1):

"(a) Establish and maintain a coordinated multidisci-
plinary community-based system for responding to allega-
tions of child abuse that is sensitive to the needs of children;

"(b) Ensure the safety and health of children who are
victims of child abuse to the greatest extent possible; and

"(c) Administer the grant programs established under
ORS 418.746 and 418.786."

The "grant programs established under ORS 418.746" exist
in order to fund, from money appropriated to the Department
of Justice, multidisciplinary teams (MDTs) at the county
level. ORS 418.746 provides, in part:

"(1) The Child Abuse Multidisciplinary Intervention
Account is established separate and distinct from the
General Fund. Interest earned, if any, shall inure to the
benefit of the account. All moneys deposited in the account
are continuously appropriated to the Department of Justice
for the purposes of ORS 418.751 and this section.

"(2) The Child Abuse Multidisciplinary Intervention
Program, with the advice of the Advisory Council on Child
Abuse Assessment, created by ORS 418.784, shall allocate
moneys from the Child Abuse Multidisciplinary Intervention
Account to eligible county multidisciplinary child abuse
teams formed under ORS 418.747, or entities designated by
the teams, serving the counties from which the moneys
were collected. * * * "

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ORS 418.747, in turn, describes the requirements of
those MDTs. Subsection (1) provides that the district attor-
ney of each county is responsible for developing those teams
and that they shall consist of:

"law enforcement personnel, Department of Human
Services child protective service workers, school officials,
county health department personnel, county mental health
department personnel who have experience with children
and family mental health issues, child abuse intervention
center workers, if available, and juvenile department rep-
resentatives, as well as others specially trained in child
abuse, child sexual abuse and rape of children investi-
gation."

Subsection (2) requires the teams to develop a written proto-
col "for immediate investigation of and notification proce-
dures for child abuse cases and for interviewing child abuse
victims." Subsection (3) requires that team members, includ-
ing personnel who conduct interviews of child abuse victims,
"shall be trained in risk assessment, dynamics of child abuse,
child sexual abuse and rape of children and legally sound and
age appropriate interview and investigatory techniques."
(Emphasis added.)

ORS 418.746(7) requires the members of MDTs to
submit annual reports to the team, and requires the MDTs to
submit reports to CAMI, describing how they spent funds
from the CAMI program and "to what extent the services
were able to meet anticipated outcomes in terms of benefits
to children and families." ORS 418.746(5) also requires
MDTs to submit a "coordinated child abuse multidisciplinary
intervention plan" to CAMI at least once per biennium. The
report that youth submits for judicial notice appears to be one
such plan, sent from the Multnomah County Child Abuse
Team to CAMI, for the time period from July 1, 2003 to June 30,
2004. Again, the state has not objected to the submission of
the report. Facts stated by the report appear to be "[c]apable
of accurate and ready determination," and the report itself
appears to be a source "whose accuracy cannot reasonably be
questioned." OEC 201(b). Accordingly, we take notice of the
report. See OEC 201(f) (providing that judicial notice may be
taken "at any stage of the proceeding").

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The report consists of a group of fiscal reports sub-
mitted by different members of the Multnomah County MDT,
including the district attorney's office, the Portland Police
Bureau, and CARES. The report submitted by CARES indi-
cates that "[i]n the fiscal year ending June 30, 2004, approx-
imately 40% of the cost related to providing child abuse
medical evaluations was paid * ** by CAMI funds from
Clackamas, Multnomah and Washington counties." The
report identifies CARES' "community partners" as "law
enforcement, District Attorney offices, DHS, medical and
mental health providers."

A report submitted by the Multnomah County dis-
trict attorney's office states that one of its goals is to
"[r]esearch and provide to the CARES Northwest Program
the dispositions of criminal cases regarding children who
have been referred for assessment of child abuse." The report
reveals a twofold reason for that research:

"The collected data is used by the CARES Northwest
Program to send a required bi-annual statistical report in
support of their grant from the National Children's Alliance
Program Support Grant, of which the CARES Northwest
Program is a Full Member. The data is also used by the
CARES Northwest Program to measure the usefulness of
their evaluation process. Their evaluations strengthen the
prosecution's cases concerning child abuse, thus reducing
child abuse."

The district attorney's office performed such queries on 589
cases between July 1, 2003 and June 30, 2004. The results
were reported to CARES "to assist in their measurement of
the usefulness, and possible adjustments, of their evaluation
process whereby the prosecution's cases concerning child
abuse may be strengthened." (Emphasis added.)

Those materials support the Court of Appeals' find-
ing that law enforcement involvement in CARES is perva-
sive, and that CARES evaluations serve a forensic purpose in
addition to any diagnostic purpose. CARES receives nearly
half of its funding from an account that is administered by
the Department of Justice. It partners with local police and
the district attorney's office. Its members are trained in inter-
view and investigatory techniques that are, among other

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things, "legally sound." ORS 418.747(2) suggests that
CARES' protocol for interviewing child abuse victims was
developed by "teams," i.e., the local MDT in which CARES is
a partner. In other words, that statute provides an opportu-
nity for the district attorney's office and the police to partici-
pate in the development of the protocol that CARES uses to
interview the victims of child abuse. Indeed, the district
attorney's office reports the results of cases to CARES for the
express purpose of enabling CARES to "adjust" its process of
evaluating child victims, in order to "strengthen the prose-
cution's cases concerning child abuse."

With that in mind, we direct our attention to the
arguments that the state presents for reversal of the decision
of the Court of Appeals. The state first argues that under
Crawford, a statement is not "testimonial" if it is made to
anyone other than a police officer or a government official. In
this case, N made statements to Heiferman, a pediatrician,
and Findlay, a social worker, both of whom are employed by
CARES. The state insists that there is a "world of difference"
between an examination at CARES and a police inter-
rogation.

We disagree with that statement, and conclude that
Heiferman and Findlay both acted, at least in part, as proxies
for the police when they questioned N about whether youth
had abused him. In Mack, we held that a DHS caseworker
was acting as a "proxy for the police" when the caseworker
interviewed a child about a crime that the child had wit-
nessed. The caseworker acted at the behest of the police, who
observed and videotaped the interview. Mack, 337 Or at 593.

This case presents a similar set of facts. First, as the
Court of Appeals observed, the involvement of law enforce-
ment in CARES is pervasive. CARES made the decision to
evaluate N "because DHS needs clarification of the allega-
tions," and recommended, at the end of the evaluation, "fur-
ther investigation by DHS and law enforcement into these
allegations of abuse." In other words, CARES apparently was
acting, at least in material part, in concert with, and for the
benefit of, law enforcement agencies in an investigation of
conduct that could lead to a loss of youth's liberty. Second,
when Heiferman and Findlay began to ask N questions about

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whether anyone had touched or sucked his penis, they were
inquiring about past conduct that potentially could lead to a
loss of the perpetrator's liberty, as police officers do when
they interview the victims of crime. Finally, as in Mack, a
police officer observed the entire process of evaluation,
including Heiferman's and Findlay's inquiry into whether N
had been abused. After the evaluation, that officer spoke
with N's mother about the "ongoing investigation." We do not
perceive any material difference between these facts and
those presented in Mack.

Service as a proxy for the police appears to be a pri-
mary function of CARES. CARES receives a significant
amount of its funding from the Department of Justice. As a
condition of receiving those funds, CARES must train its
workers in "legally sound" interview techniques. ORS
418.747(3). As Findlay stated in his testimony, a goal of
CARES is to "centralize" the process of interviewing child
abuse victims and allow "law enforcement and DHS" to be
"present to hear firsthand what the child says," so that they
do not need to "reinterview the child themselves." In other
words, an interview by CARES staff acts as a substitute for
an interview with the police. In addition, CARES receives
reports on the outcomes of child abuse cases in which it has
evaluated the victim so that it may reassess its evaluation
techniques in order to strengthen the prosecution's case. In
light of all of those facts, we conclude that, when Heiferman
and Findlay interviewed N, they were acting as proxies for
the police. To use the language of Davis, N made the state-
ments at issue in the course of something materially indistin-
guishable from "police interrogation."

The state asserts that the United States Supreme
Court has held that statements to medical workers are not
testimonial. In White v. Illinois, 502 US 346, 112 S Ct 736,
116 L Ed 2d 848 (1992), the defendant sought to exclude
statements that the victim had made to, among others, a
nurse and a doctor who had examined her at a hospital a few
hours after the defendant had sexually assaulted her. The
Court rejected the defendant's Sixth Amendment challenge

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to that testimony, holding that statements made for the pur-
pose of providing medical treatment carry "special guaran-
tees of credibility," and thus were not barred by the Confron-
tation Clause. White, 502 US at 356-57. In Crawford, the
Court stated that other aspects of White were "arguably in
tension" with the holding of Crawford. However, the Court
focused its analysis on the admission of the victim's state-
ments to a police officer, and did not discuss the admission of
her statements to the nurse and the doctor. Crawford, 541
US at 58 n 8. We noted, in Mack, that the Court "referred
only to the statements that the child made to the officer as
testimonial." Mack, 337 Or at 593 n 9. The state infers, from
the discussion of White in Crawford, that a victim's state-
ments to a nurse and doctor, made in the course of receiving
medical treatment, are not considered testimonial.

Whatever the merits of that argument, it addresses
an issue that is not presented by this case. As stated above,
when Heiferman and Findlay asked whether N had been sex-
ually abused, they were not acting solely as medical person-
nel. They also were acting as proxies for the police. The Court
has stated that "[t]he involvement of government officers in
the production of testimonial evidence presents the same
risk, whether the officers are police or justices of the peace."
Crawford, 541 US at 53. We cannot see why the involvement
of physicians and social workers, if those physicians and
social workers are acting as proxies for police officers, pres-
ents any less risk. Accordingly, we reject the state's first
argument.11

1ª In the Court of Appeals, the state suggested that a physician at CARES is
"indistinguishable from an individual pediatrician who is subject to mandatory
obligations to report suspected child abuse." The Court of Appeals rejected that
argument, drawing several distinctions between CARES workers and individual
pediatricians. On review, we decline to address the question of whether a legally
imposed obligation to report child abuse, without further ties to the state, makes a
physician a proxy for the police. That question is not presented by the facts of this
case. We think that it suffices to say that, for the reasons presented above, CARES
acted as a proxy for the police.

We note that in Giles v. California, 554 US
128 S Ct 2678, 171 L Ed 2d
488 (2008), the Court considered whether a defendant forfeits his federal right of
confrontation when the defendant kills the witness, preventing her from testifying
at trial. The Court observed, in dicta, that the federal Confrontation Clause would
not exclude "[s]tatements to friends and neighbors about abuse and intimidation,
and statements to physicians in the course of receiving treatment * * *. " Id. at

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The state's second argument is that, under Davis,
whether or not a statement is testimonial is governed by "the
primary purpose of the interrogation," and not by any second-
ary or alternative purpose. Davis, 547 US at 822. In the
instant case, the state asserts, the primary purpose of the
examination of N was "to diagnose and treat the abuse [that
he] had suffered." The state raises several challenges to the
Court of Appeals' evaluation of the role and purpose of
CARES, arguing that the court exaggerated the forensic pur-
pose of N's examination and understated the medical pur-
pose. As an alternative argument, the state contends that,
even if the Court of Appeals was correct in holding that the
examination of N had a dual purpose, any forensic purpose
was secondary, and the purpose of medical diagnosis was
primary.

As we have stated above, we infer the primary pur-
pose of an interrogation from the contents and circumstances
of N's statements. First, we note that, when N made the
statements at issue, he was describing past events. He told
Heiferman and Findlay about acts that youth had committed
the day before N's evaluation. Second, a reasonable person
could infer two conclusions from N's statements to Heiferman
and Findlay: either that N was responding to a doctor's exam-
ination, or that N was responding to a police interrogation. N
made statements about acts of sexual abuse that he had suf-
fered: He described what the abuser had done, how many
times the abuser had done it, and identified who the abuser
was. Those statements are relevant to the question whether
N needed medical or psychological treatment for the abuse
that he suffered. They are also relevant to the question of the
potential bases of the trial court's jurisdiction over the
alleged perpetrator of the abuse. Third, for similar reasons, a
reasonable person could infer that N's statements were nec-
essary both for determining whether he needed treatment for
the abuse and for pursuing his abuser in juvenile court.
Finally, N made his statements within the tranquility of a
formal setting similar to that at issue in Crawford. At the

128 S Ct at 2692-93. Again, however, the facts of this case do not present
the question whether statements made to a private physician, for the purpose of
receiving medical diagnosis and treatment, are testimonial.

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time of the statements, N was in an examination room, sep-
arated from his mother, from youth, and from anyone except
Heiferman and Findlay-and, of course, the officer who was
listening in via microphone. N described, in response to
structured questioning by Heiferman and Findlay, the
details of past events with serious consequences for youth,
including a potential loss of liberty. And N did so about
24 hours after those events had taken place.

Given the content and circumstances of N's state-
ments, we find that the Court of Appeals was correct to con-
clude that the evaluation of N served a dual purpose. N's
statements were necessary to provide an accurate diagnosis
of whether N had been abused, but they were also necessary
to develop and preserve evidence of the alleged abuse for
later presentation in juvenile court. The two purposes "are
concurrent and coequal; both are 'primary' in the sense that
neither takes precedence over the other." S. P., 218 Or App at
154. The facts of this case thus present a problem requiring
further analysis, because either of those purposes can be
described as "primary" under Davis.

To resolve that problem, we turn to another aspect of
Davis. In its analysis of the facts of both Davis and Hammon,
the Supreme Court concluded by asking the same question:
was the declarant testifying? In other words, was the declar-
ant's statement a "solemn declaration or affirmation made
for the purpose of establishing or proving some fact"?
Crawford, 541 US at 51 (defining "testimony") (internal quo-
tation marks omitted). In Davis, the Court concluded that a
woman who made a 9-1-1 call, seeking help for a present
emergency, was "not acting as a witness; she was not testify-
ing. * * * No 'witness' goes into court to proclaim an emer-
gency and seek help." Davis, 547 US at 828 (emphasis in orig-
inal). On the other hand, in Hammon, a woman describing an
incident of domestic violence that had ended minutes or
hours ago "deliberately recounted, in response to police ques-
tioning, how potentially criminal past events began and pro-
gressed." Her statements were "an obvious substitute for live
testimony, because they do precisely what a witness does on
direct examination * * *. " Davis, 547 US at 830 (emphasis in
original). In other words, the Court concluded its discussions

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of both Davis and Hammon by inquiring whether the declar-
ant's statements were the equivalent of "testimony."

If that is the ultimate question that the Supreme
Court instructs us to ask when a declarant makes statements
in response to police interrogation or its equivalent, then we
must conclude that N's statements to CARES were testimo-
nial. Obviously, no witness goes into court to seek medical
treatment. But witnesses do go into court to describe past
sexual misconduct, and that is exactly what N did at CARES.
N made his statements in a formal setting, in response to
structured questions about past events with potential serious
consequences for youth, as we have noted. From a functional
standpoint, N's examination was similar to the ex parte
examinations condemned in Crawford. N acted as a witness;
he bore testimony against youth.

As stated above, we acknowledge that N's evaluation
served two purposes. CARES sought to produce statements
that it could use against youth in this proceeding, and it also
sought to determine the extent of N's abuse in order to
recommend treatment. Those are laudable goals, but they
do not change the fact that CARES conducts the sort of
ex parte examinations that trigger the right secured by the
Confrontation Clause. Accordingly, we hold that, for the pur-
poses of Davis, the "primary purpose" of N's examination,
which, as already noted, was conducted by persons acting as
proxies for the police, was to establish or prove past events
relevant to determining the trial court's jurisdiction over
youth. In short, N's statements to CARES-both describing
the abuse committed and identifying youth as the perpetrator
-were testimonial.12

12 The state also asserts that, in both Davis and Camarena, the 9-1-1 operators
had dual purposes-both to resolve present emergencies and to make records for
future criminal investigation-and yet, both this court in Camarena and the Court
in Davis held that the declarant's statements were nontestimonial. For that rea-
son, the state asserts that, if an interrogation serves dual purposes, then state-
ments made during that interrogation are not testimonial-in other words, the
nonforensic purpose controls. We reject that argument. As we have explained,
Davis and Camarena focus primarily on the content and circumstances of the
declarant's statements, not the subjective intent of the questioner. The Court did
not hold that statements to a 9-1-1 operator, made during an emergency, were non-
testimonial because the operator had a dual purpose. Rather, it held that the state-
ments were nontestimonial because a declarant who proclaims a present emergency
does not bear testimony; the declarant is not describing past events with potential
criminal consequences.

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For its third argument, the state asserts that
whether a statement is testimonial is determined by the pri-
mary purpose of the declarant. The state makes that argu-
ment based on the Court's statement that "it is in the final
analysis the declarant's statements, not the interrogator's
questions, that the Confrontation Clause requires us to eval-
uate." Davis, 547 US at 823 n 1.

The state also points to Bourjaily v. United States,
483 US 171, 107 S Ct 2775, 97 L Ed 2d 144 (1987), as an
example of a case in which the declarant's intent was dispos-
itive. In Bourjaily, an FBI informant arranged to sell a kilo-
gram of cocaine to the declarant. The declarant, unaware
that he was speaking to an informant, made statements on
the telephone suggesting that the defendant was interested
in distributing the cocaine. The trial court admitted
those statements as statements of a coconspirator,
and the Supreme Court confirmed that the admission of
coconspirators' statements, made in the course and in fur-
therance of a conspiracy, did not violate the Confrontation
Clause under Roberts. Bourjaily, 483 US at 183-84. In Davis,
the Court cited Bourjaily as a case in which "the statements
at issue were clearly nontestimonial." Davis, 547 US at 825.
The state asserts that the informant in Bourjaily "undoubt-
edly acted with the primary purpose of obtaining statements
that could be used to investigate and prosecute criminal
acts." Accordingly, the state asserts, it must have been the
primary purpose of the declarant-who had no idea that he
was speaking to an informant-that determined whether the
statements at issue were testimonial.

We already have explained that whether a statement
is testimonial is determined by its content and the surround-
ing circumstances. Thus, in examining all the circumstances,
the knowledge and intentions of all persons involved in the
interrogation are pertinent to the court's inquiry. We reject,
as we did in Mack, the argument that a declarant's intent
alone is dispositive of the testimonial nature of his or her
statements. The focus in Crawford and Davis is on the
method by which the police obtain a declarant's statements
or, as Davis puts it, by the "primary purpose of the interro-
gation." We cannot imagine why the Court would have used

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that phrase if it had meant to refer only to the primary pur-
pose of the declarant.

Bourjaily is not to the contrary. These are the rele-
vant facts of that case:

"In May 1984, Clarence Greathouse, an informant working
for the Federal Bureau of Investigation, arranged to sell a
kilogram of cocaine to Angelo Lonardo. Lonardo agreed that
he would find individuals to distribute the drug. When the
sale became imminent, Lonardo stated in a tape-recorded
telephone conversation that he had a 'gentleman friend'
who had some questions to ask about the cocaine."

Id. at 173. When we examine the facts of Bourjaily, we find
that it does not, in fact, establish that the purpose of a declar-
ant alone determines the primary purpose of an interroga-
tion. Rather, Bourjaily is consistent with the Court's state-
ment that a declarant's statements are not testimonial when
the declarant is not acting as a witness. Lonardo, the declar-
ant in Bourjaily, stated to the informant that "he had a 'gen-
tleman friend' who had some questions to ask about the
cocaine." The actions described in that statement do have
criminal consequences, but they do not describe past events.
Instead, they are an invitation to future criminal activity.
Although Lonardo's statements were tape-recorded by the
police, it is highly unlikely that Lonardo made them in a for-
mal setting. Moreover, Lonardo was conversing with an
informant. It is unlikely that the conversation between
Lonardo and the informant resembled the structured ques-
tioning at issue in Crawford, Davis, or this case. Lonardo was
not making formal assertions about past events. In short,
Lonardo was not acting as a witness.

We acknowledge, as we did in Mack, that a declar-
ant's purpose in making a statement may determine whether
the statement is testimonial. The instant case, however, does
not present such a situation. The instant case presents an ex
parte examination that is "effectively indistinguishable" from
those "that Crawford places at the heart of the Confrontation
Clause protections." Mack, 337 Or at 594-95.

In conclusion, we hold that N's statements to
CARES, in which he identified youth as his abuser and
described the occurrence and extent of the abuse, are

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testimonial. Because youth had no prior opportunity to
cross-examine N, the Confrontation Clause of the Sixth
Amendment bars admission of those statements in this pro-
ceeding. The Court of Appeals, in reaching that conclusion,
determined that, once N's statements to CARES were
excluded, there remained sufficient evidence to assert juris-
diction over youth for conduct that, if committed by an adult,
would constitute first-degree sexual abuse, but not first-
degree sodomy. S. P., 218 Or App at 157-58. Neither party
argues that the Court of Appeals erred in reaching that con-
clusion, and we see no reason to disturb it.

The decision of the Court of Appeals is affirmed. The
finding of the juvenile court of jurisdiction on the ground that
youth engaged in conduct that, if committed by an adult,
would constitute first-degree sodomy is reversed. The finding
of the juvenile court of jurisdiction on other grounds is
affirmed, and the case is remanded to the juvenile court for
further proceedings.