State v. Snowden

HARRELL, J. In this case we consider whether statements made by child abuse victims to a social worker, though hearsay, may continue to be admitted at a criminal trial through the social worker under Maryland’s “tender years” statute, Md.Code (2001), § 11-304 of the Criminal Procedure Article, in light of the U.S. Supreme Court’s ruling in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). We shall hold that they may not. I. The events giving rise to this case began in late January 2002, when then 10 year old Tiffany P., 10 year old Megan H., and 8 year old Raven H. approached Tiffany’s mother, Vicki P., and told her that the man the girls knew as “Uncle Mike,” Michael Conway Snowden, had touched them in an inappropriate manner. 1 Vicki P., who provided after-school care in her ⁶⁹ home for the three girls, recently had allowed Snowden and his girlfriend to live in her residence because they were experiencing financial difficulties. Vicki P. testified that, upon hearing the allegations from the children, she called Snowden home from his work and, with Tiffany present, confronted him.

Snowden denied the allegations. Soon after, however, Vicki P. called the police. A joint investigation by the Montgomery County Police Department and the Child Protective Services for Montgomery County resulted. 2 On 4 February 2002, at the request of Detective Jackie Davey, the children were interviewed by Amira AbdulWakeel, a sexual abuse investigator for the Montgomery County Department of Health and Human Services. 3 With Detective Davey present, Wakeel separately interviewed Vicki P., Tiffany, Megan, and Raven at the Juvenile ⁷⁰ Assessment Center in Rockville. At the beginning of each interview, Wakeel asked each girl whether she knew why she was being interviewed.

Each responded that she was aware that she was being interviewed as a result of her accusations against Snowden. 4 During her interview, Tiffany stated that, on one occasion, Snowden entered her bedroom purportedly to return a telephone. Snowden began to touch her on her breasts and on her vagina, and then touched her buttocks as she left the room. Megan told Wakeel that Snowden approached her as she was coming down the stairs one day in the home. In the course of attempting to pick her up, Snowden intentionally touched her chest and vaginal area.

Megan told Wakeel that she was not particularly close to Snowden, and only knew him because he was staying at her babysitter’s house. Megan also ⁷¹ stated that Snowden would “hit her a lot ... on the face and on the arms.” Raven told Wakeel that, one day while she was watching television in Vicki P.’s house, Snowden came into the room and sat down on the bed with her. Snowden pulled her arm so that she became seated between Snowden’s legs. Snowden then “put his arms around her and placed his hands in her vaginal area and rubbed his private area against her buttocks.” On 14 February 2002, Snowden was arrested on a warrant issued based on information obtained during Wakeel’s interviews with the children.

While in police custody, Snowden denied the allegations of child abuse. At the suggestion of the police, however, he wrote a letter of apology to the girls, expressing his desire for the girls’ forgiveness for what he characterized as accidental touchings. On 16 May 2002, Snowden was indicted 5 on one count of child abuse 6 and six counts of third degree sexual offense. 7 ⁷³ Immediately prior to trial, the State filed a motion to invoke Md.Code (2001), § 11-304 of the Criminal Procedure Article, otherwise known as Maryland’s “tender years” statute. The statutory scheme of § 11-304, if properly invoked and applicable, allows the prosecution to substitute a health or social work professional’s testimony for that of the children if, among other things, the trial court interviews the children in a closed hearing and makes a finding on the record that the victims’ statements possessed “specific guarantees of trustworthiness.” The trial judge here examined the children, and ruled that Wakeel’s testimony of their accounts as told to her satisfied the requirements of the statute.

Snowden objected to the admittance of Wakeel’s testimony, arguing that its allowance violated his Sixth Amendment right to confrontation guaranteed by the federal Constitution and the Maryland Declaration of Rights. The trial judge overruled Snowden’s objection. The children, who the State represented were present, were allowed to depart and did not testify. Based largely on Wakeel’s testimony, Snowden was found guilty by the trial judge on all counts. 8 Snowden timely ⁷⁴ appealed to the Court of Special Appeals.

Oral argument in the intermediate appellate court was held on 5 February 2004. Approximately one month later, on 8 March 2004, the U.S. Supreme Court decided Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), which held generally that testimonial statements may not be admitted in evidence through non-declarant witnesses unless the declarant is unavailable and there is a prior opportunity for cross-examination. On 5 April 2004, Maryland’s intermediate appellate court filed its opinion in Snowden’s appeal and held that, in light of Crawford , Wakeel’s testimony violated Snowden’s right to confrontation because the children were available to testify and their statements during the interview with Wakeel were sufficiently testimonial in nature. Snowden v. State, 156 Md.App. 139, 157 , 846 A.2d 36, 47 (2004).

The State sought review in this Court by petition for writ of certiorari. We granted its petition, 381 Md. 677 , 851 A.2d 596 (2004), in order to decide the following question, which we have rephrased for clarity: Did the Court of Special Appeals err in holding that the introduction of hearsay evidence, pursuant to Md.Code (2001), § 11-304 of the Criminal Procedure Article, violated Snowden’s right to confrontation under the Sixth Amendment to the United States Constitution in light of Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004)?

II

The Confrontation Clause of the U.S. Constitution 9 provides that “[i]n all criminal prosecutions, the accused shall ⁷⁵ enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend.

VI

Although the Confrontation Clause appears to guarantee a defendant the right to confront his or her accusers face-to-face at trial, the Supreme Court has stopped short of proclaiming this right absolute. See Maryland v. Craig, 497 U.S. 836 , 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990) (holding that the Confrontation Clause is not violated when the State presents the testimony of a child victim through the use of closed circuit television). In Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), for example, the Supreme Court considered the impact of the Confrontation Clause on the admissibility of hearsay declarations in criminal trials. The Supreme Court held that when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable.

Even then, his statement is admissible only if it bears adequate “indicia of reliability.” Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Id. at 66 , 100 S.Ct. at 2539 , 65 L.Ed.2d 597 . Following Roberts , many States enacted statutes allowing the admission into evidence of certain hearsay statements in criminal trials.

In 1988, Maryland enacted its tender years statute, first codified at Md.Code (1973, 1989 Repl.Vol.), § 9-103.1 of the Courts and Judicial Proceedings Article. 10 The tender years statute allows a court to admit into evidence in a juvenile proceeding or criminal trial hearsay statements by victims 11 of child abuse if the statements were made to certain ⁷⁶ health or social work professionals 12 in the course of their professions. Md.Code (2001), § 11-304 of the Criminal Procedure Article. The legislation was enacted in response to concerns that child abuse and sexual offenses were not being prosecuted adequately due to many child victims’ inability to testify as a result of their young age or fragile emotional state. See Letter from J. Joseph Curran, Jr., Attorney General of Maryland to the Honorable Walter Baker, Chairman of the Senate Judicial Proceedings Committee (Senate Bill 66 of 1998) 1 (3 February 1988) (on file at Maryland State Law Library) (finding that “a hearsay exception is necessary in cases where the age or emotional state of the child precludes the child from testifying”).

The statute eliminated this concern by allowing the evidence to be presented by someone other than the vulnerable or legally incompetent child. To satisfy the constitutional requirements of Roberts , the Maryland Legislature imposed safeguards in the tender years statute intended to insure that any admitted statement possessed “particularized guarantees of trustworthiness.” Md. Code (2001), § ll-304(d)-(f) of the Criminal Procedure Article. First, the statute requires that, if the child does not testify at trial, the State must produce corroborative evidence demonstrating that the defendant had the opportunity to commit the alleged abuse. 13 Id. § ll-304(d)(2). The statute also requires that the trial court conduct a hearing to deter ⁷⁷ mine whether the proposed statements possess “particularized guarantees of trustworthiness.” Id. § 11-304(e)-(g).

The statute contains a list of non-exclusive factors that the judge must consider in making this determination. 14 Id. § 11— 304(e)(2). The judge must examine the child victim in chambers, closed to all except the judge, the victim, the victim’s attorney, and one attorney each for the defendant and the prosecution. Id. § ll-304(g). The judge must then make a finding, on the record, as to “the specific guarantees of trustworthiness that are in the statement.” Id. § 11 — 304(f)(1).

The defendant also has an opportunity to depose the health or social work professional whose testimony the State intends to offer. Id. § 11 — 304(d)(4). In the original enactment of the statute, the statements of the health or social work professional could be admitted only if the child was available and testified at the criminal proceeding or was unavailable due to death, absence from the jurisdiction, serious physical disability, or inability to communicate due to severe emotional distress. Md.Code (1973, 1989 Repl.Vol.), ⁷⁸ § 9-103.1(c)(2)(i) of the Courts and Judicial Proceedings Article.

In 1994, the Legislature amended the statute so that it could be utilized regardless of whether the child was available to testify. 1994 Md. Laws, Chap. 169, § 1. In Prince v. State, 131 Md.App. 296 , 748 A.2d 1078 (2000), the Maryland tender years statute was found constitutional by the Court of Special Appeals under the then-extant Supreme Court Confrontation Clause jurisprudence, principally relying on Roberts . On 8 March 2004, the Supreme Court fundamentally altered its Confrontation Clause jurisprudence when it decided Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). In Crawford , the defendant, Michael Crawford, had been found guilty of assault based on a tape-recorded statement by his wife made to the police.

Id. at 1357-58. Crawford’s wife was unavailable to testify at trial. Crawford objected to the use of his wife’s statement, arguing that the admission of her statement without any ability to cross-examine her violated his rights under the Confrontation Clause. Id. at 1358.

The trial court admitted into evidence her recorded statement, based on a recognized hearsay exception, even though the defendant did not have an opportunity to cross-examine her. Id. at 1357-58. On direct appeal, the Washington Court of Appeals reversed Crawford’s conviction, finding that his wife’s statements, under a Roberts analysis, did not bear particularized guarantees of trustworthiness. Id. at 1358.

The Washington Supreme Court, however, reinstated Crawford’s conviction, relying also on a Roberts analysis, but concluding that his wife’s statements were indeed sufficiently trustworthy. Id. at 1358-59 The Supreme Court in Crawford held that the introduction of the wife’s recorded statements violated the defendant’s rights under the Confrontation Clause. Id. at 1374. After tracing the origins of the Clause, the Court concluded that the Roberts test was fundamentally incompatible with the Framers’ vision and interpretation of the Clause.

Id. at 1369-74. The Court instead held that the Confrontation Clause mandates that testimonial statements may not be offered into ⁷⁹ evidence in a criminal trial unless two requirements are satisfied: 1) the declarant/witness is unavailable, and 2) the defendant had a prior opportunity to cross-examine the declarant/witness. Id. at 1874. The Supreme Court found fault with the perceived unpredictability and subjectivity of the “indicia of reliability” test in Roberts .

In overruling Roberts , the Court stated: Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.

Id. at 1370. Crawford also drew a sharp distinction between those out of court statements that may be classified as “testimonial” and those that may not. Id. at 1363-65. Finding that the “principal evil at which the Confrontation Clause was directed was ... [the] use of ex parte examinations as evidence against the accused,” the Court rejected the notion that the Clause merely applied to in-court testimony.

Id. at 1363-64. Instead, the Clause’s mention of “ ‘witnesses’ against the accused” was interpreted to include, at the very least, those who “bear testimony.” Id. at 1364 (citations omitted). Therefore, the Court found that when an out-of-court statement qualifies as testimonial, the Constitution conditions its admission on the unavailability of the witness and a prior opportunity to cross-examine. 15 Id. at 1365-67. ⁸⁰ Although the Supreme Court declined to frame a “comprehensive” definition of “testimony,” it listed several characteristics of a testimonial statement. The Court began by addressing what is “testimony”: “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.

Id. at 1364 (citations omitted). Rather than articulate a singular standard, the Court offered three proposed formulations to exhibit the “core class” of what is “testimonial” for Confrontation Clause purposes: ⁸¹ “[1] ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” [2] “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,”; [3] “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.” Id. (citations omitted). As the Court noted, these standards share a common nucleus in that each involves a formal or official statement made or elicited with the purpose of being introduced at a criminal trial.

Id. at 1364, 1367, n. 7 (finding that statements are testimonial where “government officers [are involved] in the production of testimony with an eye toward trial”). Although these standards focus on the objective quality of the statement made, the uniting theme underlying the Crawford holding is that when a statement is made in the course of a criminal investigation initiated by the government, the Confrontation Clause forbids its introduction unless the defendant has had an opportunity to cross-examine the declarant. Id. at 1364. The introduction of a witness’s statements made during police interrogation was offered as a prime example of the potential abuses that the Clause was intended to prevent.

Id. at 1364-65. The Court emphasized the nature of statements made to police officers in the course of an investigation as being especially testimonial: Statements taken by police officers in the course of investigations are also testimonial under even a narrow standard. Police interrogations bear a striking resemblance to examinations by justices of the peace in England. The state ⁸² ments are not sworn testimony, but the absence of oath was not dispositive.

That interrogators are police officers rather than magistrates does not change the picture either. Justices of the peace conducting examinations under the Marian statutes were not magistrates as we understand that office today, but had an essentially investigative and prosecutorial function. England did not have a professional police force until the 19th century, so it is not surprising that other government officers performed the investigative functions now associated primarily with the police. The involvement of government officers in the production of testimonial evidence presents the same risk, whether the officers are police or justices of the peace.

In sum, even if the Sixth Amendment is not solely concerned with testimonial hearsay, that is its primary object, and interrogations by law enforcement officers fall squarely within that class. Id. at 1364-65 (citations omitted). The Court clarified that its use of the term “interrogation” was not meant in its legal or rigid sense, but rather its colloquial or general meaning. Id. at 1365 n. 4.

The Court, however, did emphasize the formal nature of police questioning in its articulation of when an “interrogation” occurs. Id.; Hammon v. State, 809 N.E.2d 945, 952 (Ind.Ct.App.2004) (finding that the “common denominator underlying the Supreme Court discussion [in Crawford ] of what constitutes. a ‘testimonial’ statement is the official and formal quality of such a statement”). This characterization is buttressed by the most commonly understood sense of the verb “interrogate”: “to question formally and systemically.” Merriam Webster’s Collegiate Dictionary 612 (10th ed.1993). Several courts have relied on this formality of interrogation to distinguish whether a statement to government agents or employees is testimonial.

See, e.g., People v. Cage, 15 Cal.Rptr.3d 846, 856-57 (Cal.Ct. ⁸³ App.2004), cert, granted, 19 Cal.Rptr.3d 824 , 99 P.3d 2 (Cal. Oct. 13, 2004) (finding a child’s statement to a police officer at a hospital was not formal and therefore nontestimonial under Crawford because the statements were made in a public, neutral location, there was no “structured questioning,” and the statements occurred in the course of determining whether a crime had been committed and before any arrest had been made). Other courts have excluded from their definitions of interrogation statements made during investigatory or on-the-scene questioning by police officers responding to an emergency call. See, e.g., Fowler v. State, 809 N.E.2d 960, 964 (Ind.Ct.App.2004) (finding that a police officer’s “questioning of [the victim] at the scene of the incident just minutes after it occurred does not qualify as classic, ‘police interrogation’ as referred to in Crawford ”).

Virtually all courts that have considered the matter in a post -Crawford setting, however, have interpreted an “interrogation” to include any formal police questioning that occurs after charges are filed or a police report has been made. See, e.g., People v. Sisavath, 118 Cal.App.4th 1396 , 13 Cal.Rptr.3d 753, 758 (2004) (finding significant, for purposes of determining whether statements made during an interview were testimonial under Crawford, the fact that the statements were made after a prosecution was initiated). In the context of “police interrogations,” we are directed by Crawford to conclude that the proper standard to apply to determine whether a statement is testimonial is whether the statements were made under circumstances that would lead an objective declarant reasonably to believe that the statement would be available for use at a later trial. 16 Crawford, 124 S.Ct. at 1364 . ⁸⁴ III. Using these objective standards in the present case, it is clear that an ordinary person in the position of any of the declarants would have anticipated the sense that her statements to the sexual abuse investigator potentially would have been used to “prosecute” Snowden.

The interview questions posed by Wakeel, and the responses elicited, were in every way the functional equivalent of the formal police questioning discussed in Crawford as a prime example of what may be considered testimonial. Id. at 1364-65. Most telling is the fact that Wakeel’s participation in this matter was initiated, and conducted, as part of a formal law enforcement investigation. The children were interviewed at the behest of Detective Davey of the Montgomery County Police Department, who was actively involved in the investigation.

Unlike some cases in which statements to investigators were deemed nontestimonial because they were in the course of ascertaining whether a crime had been committed, Hammon, 809 N.E.2d at 952 , the children’s statements were elicited by Wakeel subsequent to initial questioning of them by the police and after the identity of a suspect was known. See Sisavath, 13 Cal.Rptr.3d at 757 (finding that statements objectively could be expected to be used later at trial where complaint and criminal information had been filed, and a preliminary hearing had been held). Indeed, Wakeel testified that she began her investigation with a police report in hand, which stated that “Michael Snowden had sexually abused these children.” During Wakeel’s interviews, each child also stated that she was aware of the purpose of the questioning, and through each of her answers indicated that she was aware of the illegal (or at least morally or ethically wrong) nature of the touching attributed to Snowden. This awareness of the prosecutorial purpose of the interviews not only satisfies any objective formulation of what is “testimonial,” but, in our opinion, demonstrates that the children actually were aware ⁸⁵ that their statements had the potential to be used against Snowden in an effort to hold him accountable for his conduct.

The State argues that the nature of the interviews and the interviewer’s employment compel the conclusion that the children’s statements were not made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 124 S.Ct. at 1364 . We disagree. Even if we were inclined to ignore the children’s actual awareness of the purpose of the interviews, any argument as to the logistics or style of the interviews blatantly disregards the undeniable fact that the express purpose of bringing the children to the facility to be interviewed was to develop their testimony for possible use at trial. See State v. Bobadilla, 690 N.W.2d 345, 349 (Minn.Ct.App.2004) (finding, post-Crawford, that because “the interview was conducted for [the] purpose of developing a case against [the defendant], ... the answers elicited were testimonial in nature”).

Although the trial court in this case made no express finding whether the children’s statements were testimonial, it made the following observation: The children were interviewed for the expressed purpose of developing their testimony by Ms. Wakeel, under the relevant Maryland statute that provides for the testimony of certain persons in lieu of a child, in a sexual abuse trial.... The State asks us to ignore this finding, even though it is a factual finding upon which the intermediate appellate court relied almost exclusively to conclude that the children’s statements, in light of Crawford , were testimonial. Snowden, 156 Md.App. at 157 , 846 A.2d at 47 . Although not dispositive of the question before us, the trial court’s finding that the interviews were made for the express purpose of satisfying the requirements of the tender years statute supports strongly our conclusion that the interviews were conducted, and the statements made, in contemplation of a later trial, and thus are testimonial in nature.

Moreover, we find that the structure, location, and style of the interviews actually support the notion that the children’s ⁸⁶ interviews were a formal and structured interrogation where the responses reasonably would be expected to be used at a later trial. The fact that the interviews were conducted by a licensed sexual abuse investigator, rather than a police officer, is of little persuasive weight in our analysis. The Crawford Court uniquely was aware of the danger of confining testimonial statements to those made to police when it stated: Involvement of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse-a fact borne out time and again throughout a history with which the Framers were keenly familiar. Crawford, 124 S.Ct. at 1367 n. 7.

Wakeel’s role as interviewer was little different from the role of a police officer in a routine police interrogation. Wakeel became involved only after being contacted by the Montgomery County Police Department, which informed her of the substance of the children’s accusations. Because Wakeel was performing her responsibilities in response and at the behest of law enforcement, she became, for Confrontation Clause analysis, an agent of the police department. 17 See State v. Mack, 337 Or. 586 , 101 P.3d 349, 352 (2004) (rejecting State’s argument that child’s statements during an interview with a social worker were not testimonial under Crawford, based on the finding that the social worker “was acting as an agent for the police ...”); In re T.T., 351 Ill.App.3d 976 , 287 Ill.Dec. 145 , 815 N.E.2d 789, 801 (2004) (finding post -Crawford that “where [a social worker] works at the behest of and in tandem with the State’s Attorney with the intent and purpose of assisting in the prosecutorial effort, [the social worker] ⁸⁷ functions as an agent of the prosecution”). Although it is preferable for victims of crime to be questioned by law enforcement personnel who have experience in evaluating evidence and witnesses with an eye toward prosecution, because of the nature of child victim witnesses as particularly emotionally fragile, it may be necessary to utilize other personnel possessing training in questioning children that may otherwise be traumatized.

See People v. Vigil, 104 P.3d 258 (Colo.Ct.App.2004), cert, granted, No. 04SC532, 2004 WL 2926003 (Colo. Dec.20, 2004) (finding the fact that the interview was conducted by an investigator trained to interview children did not alter the court’s finding that a child’s interview was an interrogation under Crawford). Wakeel had extensive training in investigating and interviewing abused and neglected children, as well as testifying in court concerning the results of those investigations. As part of her official responsibilities, she worked closely with the Montgomery County law enforcement and judicial systems, not only in this case, but in several other matters.

Wakeel’s dual roles as interviewer and ultimate witness for the prosecution confirm her function as an arm of the police investigation in this case. Furthermore, even were we to accept the State’s argument that Wakeel’s responsibility was simply to “assess [the] safety of children in sexual abuse and neglect cases,” the presence of Detective Davey during the interviews, and the children’s awareness of the detective’s presence, overwhelms any argument that the statements were not testimonial because they were not in response to police questioning. Bobadilla, 690 N.W.2d at 349 ; Sisavath, 13 Cal.Rptr.3d at 758 . The State also argues that the children’s statements during the interview are not testimonial due to the “neutral” location of the interview 18 and the “nonauthoritarian” demeanor of the interviewer.

To the contrary, the interviews did not take place at a “neutral” location, but at a County-owned and ⁸⁸ operated facility unfamiliar to the children and used for the purpose of investigating and assessing victims of child abuse. Although the Juvenile Assessment Center in Rockville may bear little resemblance to the torture chambers of the dread Lord Jeffreys, 19 the Center’s express purpose, in a significant way, was to provide a controlled and structured environment for the questioning, or interrogation, of the children about their accounts of a possible crime. Furthermore, the asserted lack of an “authoritarian demeanor” on the part of the interviewer in this case does not negate the underlying purpose of the interview and all the participants’ awareness of the potential use of the information elicited. Statements in response to structured police interrogation are no less testimonial because the police interrogator expresses empathy or friendship for the interviewee.

See Vigil, No. 02CA0833, 104 P.3d at 262 (finding that “[ajlthough the interview in this case was conducted in a relaxed atmosphere, with open-ended, nonleading questions, and although no oath was administered at the outset, it nevertheless amounted to interrogation under Crawford”). By analogy, the statements made to a sexual abuse investigator are no less testimonial because the investigator uses non-intimidating, age-appropriate interview techniques designed to limit retraumatization. See In re R.A.S., No. 03CA1209,—P.3d-, ⁸⁹ slip op. at 7, 2004 WL 1351383 (Colo.Ct.App. June 17, 2004) (finding that a child’s statements were testimonial under Crawford in the context of age-appropriate questioning by an investigating officer). The record here shows that, even if the atmosphere during the questioning was relaxed, Wakeel impressed upon the children the “serious” and “businesslike” purpose of the interviews.

The American Prosecutors Research Institute’s amicus brief argues that the limited cognitive and developmental skills of young children must be taken into account when determining whether a child’s statement is testimonial. Although cautious not to dismiss out of hand the research concerning child development pointed to in the amicus brief, we conclude nonetheless that these contentions are not relevant in this case because each child was able facially to give a full and complete account of their experiences with Snowden. This is made apparent by the trial court’s findings, based on Wakeel’s testimony and the judge’s interviews of the children, for purposes of the tender years statute, that the statements of each of the children exhibited “particularized guarantees of trustworthiness.” We therefore are reluctant to accept amicus’s generalized contentions that a young child’s statement may never be testimonial. Although we recognize that there may be situations where a child may be so young or immature that he or she would be unable to understand the testimonial nature of his or her statements, we are unwilling to conclude that, as a matter of law, young children’s statements cannot possess the same testimonial nature as those of other, more clearly competent declarants.

Indeed, other courts have found to be testimonial statements by children as young as three years old. Mack, 101 P.3d at 349 ; See also In re R.A.S., No. 03CA1209, -P.3d-, slip op. at 1, 2004 WL 1351383 (involving a four year old declarant); Sisavath, 13 Cal.Rptr.3d at 755 (same); but see Cassidy v. State, 74 Md.App. 1, 29-30 , 536 A.2d 666, 679-80 (1988) (finding that a statement by a two year old declarant was not admissible under the Statements made to a Treating Physician exception to the Hearsay Rule because the ⁹⁰ child “did not understand the nature or purpose of her interview with [the physician]”). This concern for the testimonial capacity of young children overlooks the fundamental principles underlying the Confrontation Clause. Even though there are sound public policy reasons for limiting a child victim’s exposure to a potentially traumatizing courtroom experience, we nonetheless must be faithful to the Constitution’s deep concern for the fundamental rights of the accused.

Although the Supreme Court has recognized that the interest of protecting victims may triumph over some rights protected by the Confrontation Clause, it also has concluded that such interests may never outweigh the explicit