State of Connecticut v. Giovanni Pagan (2013)

MEMORANDUM OF DECISION

The defendant has been charged with sexual assault in the first degree in violation of General Statutes § 53a–70(a)(2);  three counts of risk of injury to a minor in violation of General Statutes § 53–21(a)(2);  and sexual assault in the third degree in violation of General Statutes § 53a–72a(a)(2).   The alleged victim is the defendant's son, F.P., who was between the ages of three and four at the time of the alleged sexual assaults.   The state expressed its intention of offering at trial statements made by F.P. during a forensic interview on February 28, 2011 at the Child Advocacy Center (“CAC”) at St. Francis Hospital accusing the defendant of acts of sexual assault.   On December 4 through December 6, 2013, this court held a hearing to determine whether F.P.'s statements were admissible under the statements regarding medical treatment and tender years exceptions to the hearsay rule.   See Connecticut Code of Evidence sections 8–3(5) and 8–10.¹

At the hearing, Erin Byrne, a clinical child interview specialist at CAC, testified that, on February 28, 2011, she conducted a diagnostic interview ² of F.P., who was four years old at the time of the interview.   Byrne interviewed F.P. alone, but the interview room was equipped with a one-way mirror which allowed Kathy Vera, an investigator for the Department of Children and Families (“DCF”), to observe and hear the interview.   The interview was also videotaped and recorded on a DVD. The DVDs of interviews at CAC are routinely made available to law enforcement;  in fact, CAC advises police to bring a writable DVD to the interview so that a copy of the interview can be made for them.   The interview is videotaped, according to Byrne, so that law enforcement can use the tape of the interview in its investigation and not have to re-interview the child.

F.P. was brought to the interview by his mother.   The interview of F.P. at CAC was scheduled at the request of DCF. F.P.'s mother had contacted the Vernon police after F.P. made disclosures of sexual abuse by the defendant.   The Vernon police referred the matter to DCF. Vera was investigating the matter for DCF to determine whether the sexual abuse allegations could be substantiated.   Vera made the appointment for the interview of F.P. at CAC. Prior to scheduling the appointment, Vera spoke with Detective Glimpse, the detective assigned to investigate the matter for the New Britain police department, to arrange a time for the interview that would allow Detective Glimpse to be present.   CAC records indicate that CAC also informed Detective Glimpse of the date of the interview.   Though Detective Glimpse was scheduled to be present at the interview, she did not appear.   Representatives from DCF and local law enforcement are invited to observe interviews at CAC in an effort to reduce the number of interviews conducted of children who allege sexual abuse.   CAC seeks to limit the number of interviews in order to avoid traumatizing the child through repetitive recitations of the abuse.

Byrne conducted the interview of F.P. using the RATAC protocol.   The RATAC protocol was developed by the staff of CornerHouse, a non-profit child abuse evaluation and training center in Minneapolis, Minnesota.   The protocol is designed to maximize the child's ability to communicate his or her experience of sexual abuse through questioning that is conducted in a child-friendly, developmentally appropriate manner.  “RATAC” is an acronym that stands for rapport, anatomy identification, touch inquiry, abuse scenario and closure.   The interviewer's goal is to invite the maximum amount of accurate information from a child during the forensic interview.   It is the role of the forensic interviewer to elicit a complete and accurate report and to collect the facts of the case.³

A nurse at CAC prepared an initial intake report that was shared with Byrne prior to her interview of F.P. The intake report disclosed that F.P.'s case was initially referred to CAC on February 21, 2011 by DCF. The report also stated that the matter involved a “joint DCF/police” investigation and identified the DCF investigator as Kathy Vera and the police investigator as Detective Glimpse of the New Britain police department.

Byrne interviewed F.P. for thirty-five minutes.   Byrne used anatomical drawings during the interview.   F.P. stated during the interview that the defendant had put his finger inside F.P.'s “butt,” “a lot of times.”   F.P. also said that the defendant put his arm and his hand inside F.P.'s butt.   F.P. further reported that he touched the defendant's genitals.   F.P. did not disclose where or when the sexual abuse occurred.   His mother however reported that the last contact that the defendant had with F.P. was in or around January 2011.   While no specific questions were asked by representatives of DCF or law enforcement during the interview of F.P., it is the practice at CAC for the interviewer to take a break during the interview to allow DCF and law enforcement to request that specific questions be asked during a child's interview.

Byrne prepared a report based on the interview.   According to Byrne, the report and the DVD of the interview were placed in F.P.'s medical records at CAC. A copy of the report was also given to DCF.

Prior to the interview, F.P.'s mother signed a release authorizing DCF and the police to observe the interview and authorizing the release of medical records, including the release of the written summary of the interview to DCF and the release of the DVD of the interview to law enforcement.   It is the practice of CAC to request such releases of parents and guardians prior to each interview.   Regina Dyton testified that if a parent or guardian refuses to sign the release, no interview will be conducted.

Byrne testified that she conducted the interview of F.P. for medical purposes.   She was endeavoring to determine what, if anything, happened to F.P. in order to insure that he received the appropriate medical treatment.   Because F.P. disclosed sexual abuse, Byrne recommended, after her interview with F.P., that F.P. receive a medical evaluation and therapy.   A medical examination of F.P. was conducted at CAC on March 15, 2011 by Audrey Courtney, a nurse.   A full physical examination was done and lab tests for sexually transmitted diseases and HIV were completed.   Courtney relied on the written report of the interview of F.P. to determine F.P.'s medical history.   Courtney did not review and did not rely on the DVD of the interview.

Regina Dyton, the program manager at CAC, concurred with Byrne that the interview of F.P. was conducted for medical purposes.   Dyton further testified that the child interviews at CAC involve a collaboration with DCF and law enforcement and that, prior to each interview, the interviewer will meet with DCF and law enforcement to share information on the case.   Information submitted from CAC's website disclosed that the center aims to minimize the trauma experienced by a child victim of sexual abuse “with a streamlined, multi-disciplinary approach that combines the forensic interview, medical examination, evidence collection and follow-up planning in a single, non-threatening visit.”   She also testified that staff, including forensic interviewers, from CAC participate in regional multidisciplinary teams.   Multidisciplinary teams coordinate services in cases of child abuse and include representatives from DCF, the state's attorneys office, local law enforcement, medical professionals and mental health professionals.   Dyton also stated that it was likely that a multidisciplinary team meeting occurred with respect to the sexual abuse allegations made by F.P.

Nancy Eiswirth, a clinical psychologist, who was recognized at the hearing as an expert in interviewing child victims of sexual abuse, also testified.   Eiswirth testified that she was familiar with the RATAC protocol and that it was initially developed in 1998 by CornerHouse with the assistance of the National District Attorneys Association and National Prosecutors Research Institute.   The RATAC protocol was developed for forensic purposes, that is, to obtain a clear statement from a child victim of sexual abuse that could be submitted to court.   In Eiswirth's experience, the RATAC protocol has never been used for clinical purposes.   Eiswirth emphasized a number of attributes of the interview protocol at CAC which support her determination that it is designed for forensic, rather than clinical, purposes.   First and foremost, the interviews conducted at CAC are not premised on an understanding that the information provided will be confidential.   Rather, parents and guardians are encouraged to sign a release before the interview begins authorizing disclosure of the substance of the interview to DCF and law enforcement.   In Eiswirth's opinion, an interview for medical purposes would never include a pre-interview request for the release of information, particularly one authorizing the release of information to the police.   In her view, informed consent is lacking when a release of information is signed prior to the interview because the parent does not yet know what information she is authorizing to be disclosed.   Other attributes which have no clinical utility in Eiswirth's experience are the use of anatomical pictures, the observation of the interview by non-medical personnel, and the recording of the interview.   Based on these factors and the use of the RATAC protocol, it was Eiswirth's opinion that the interview of F.P. at CAC on February 28, 2011 was for forensic purposes and not for medical purposes.

The state asserts that the statements made by F.P. during the interview at CAC on February 28, 2011 concerning the acts of sexual abuse by the defendant were statements for the purpose of obtaining medical treatment and admissible under section 8–3(5) of the Connecticut Code of Evidence.   The state further asserts that the same statements are admissible under the tender years exception to the hearsay rule.   See section 8–10 of the Connecticut Code of Evidence.   The state contends that the testimony of Byrne and Dyton establish that the interview of F.P. was conducted for medical purposes and not made in preparation of a legal proceeding.   That testimony is buttressed by the fact that a report of the interview was utilized for a medical examination of F.P. that was performed by a nurse at CAC approximately two weeks later.   The state also points to the lack of any law enforcement participation in the interview itself.

The defendant asserts that the evidence establishes that the primary purpose of the interview of F.P. was forensic, that is, to elicit information regarding sexual abuse for use in future court proceedings.   The defendant highlights the many attributes of the interview procedure at CAC that are inconsistent with an interview for medical purposes, including its coordination with DCF and law enforcement, the ability of DCF and the police to observe the interview, the recording of the interview and the absence of confidentiality.   The defendant also argues that the use of the RATAC protocol is evidence of the interview's forensic purpose as it was developed and designed to collect the facts of the case with an eye toward future prosecution.

The crux of the dispute between the state and the defendant regarding the admissibility of the statements made by F.P. centers on the primary purpose of those statements.   If, as the state claims, the statements were made for the primary purpose of obtaining medical treatment, then the statements are admissible pursuant to section 8–3(5) of the Connecticut Code of Evidence (statement for purposes of obtaining medical diagnosis or treatment).   They are also admissible under the tender years exception to the hearsay rule pursuant to section 8–10 of the Connecticut Code of Evidence because the statements would not have been made in preparation of a legal proceeding.   If, as the defendant claims, F.P.'s statements were testimonial, that is, their primary purpose is to assist an investigation into past criminal conduct, see Davis v. Washington, 547 U.S. 813 (2006), then those statements would not be admissible as evidence at trial as claimed by the state.   Based on the evidence presented to me at the preliminary hearing, I find that the statements made by F.P. during his interview at CAC on February 28, 2011 were made for the primary purpose of gathering evidence to assist in government investigations and for possible future court proceedings and therefore they are not admissible at trial under either exception to the hearsay rule suggested by the state.⁴

Before I elaborate on the factual circumstances of the forensic interview of F.P. which establish that his statements were testimonial, let me first address the state's contention that the outcome in this case is controlled by State v. Arroyo, 284 Conn. 597 (2007).   In Arroyo, the Supreme Court found that statements of a child regarding sexual abuse by the defendant made to a clinical social worker during a forensic interview at the Yale Sexual Abuse Clinic at Yale–New Haven Hospital were not testimonial because the primary purpose of the interview was to provide medical assistance to the child.   Arroyo does not mandate the result the state seeks for a number of reasons.   First, as the Connecticut Supreme Court has noted, Arroyo did not adopt a blanket rule of admissibility for all forensic interviews conducted by child sexual abuse clinics.  State v. Maguire, 310 Conn. 535, 564 (2013).   Rather, determining the primary purpose of the forensic interview is a fact based inquiry.   Decisive facts in Arroyo establishing the primary medical purpose of the interview were the absence of evidence that the interviewer cooperated or assisted in the investigation of the defendant, State v. Arroyo, supra, 284 Conn. 635;  “the purpose of the interviews was related solely to securing the welfare of the child,” id. (emphasis supplied);  and the repeated communications and consultations between the medical care provider and the forensic interviewer as well as the participation of the forensic interviewer in the ultimate diagnosis and formulation of a treatment plan for the child, id., 632–33.   None of these facts are present here.

Second, the Supreme Court in Arroyo did not have the benefit of the U.S. Supreme Court's decision in Michigan v. Bryant, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011), issued after Arroyo, which elaborated on the standard to be used for resolving when statements are testimonial.   In Arroyo, the court, relying on Crawford v. Washington, 541 U.S. 36 (2004), identified the crucial issue in determining whether out-of-court statements are testimonial as being whether the circumstances would lead an objective witness reasonably to believe that the statement would later be used in a prosecution.  State v. Arroyo, supra, 284 Conn. 630.   As the Connecticut Supreme Court subsequently recognized in State v. Cameron M., 307 Conn. 504, 523 n.20, and State v. Maguire, 310 Conn. 535, 568, the decision in Michigan v. Bryant, supra, shifted away from the declarant's intent toward including that of the interrogator in determining whether the primary purpose of the statement is testimonial.

In light of the above, it is incumbent upon me to analyze the factual circumstances surrounding the statements made by F.P. during the forensic interview using the standard enunciated in Michigan v. Bryant.   Under Crawford and its progeny, it is clear that, where the primary purpose of an interrogation ⁵ is to elicit statements regarding past events for use in a later prosecution, the resulting statements are testimonial.  Davis v. Washington, 547 U.S. 813, 822 (2006).   See also State v. Arroyo, supra, 284 Conn. 629 (“[S]tatements taken by government actors who are not members of law enforcement are testimonial if the interview is the functional equivalent of police interrogation with the primary purpose of establishing or proving past events potentially relevant to later criminal prosecution”).   In Michigan v. Bryant, the court clarified that, to determine the primary purpose of an interrogation, a court should “objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.”   Michigan v. Bryant, supra, 12.   The court emphasized that it is an objective inquiry, id., at 13, and a subjective analysis of the intent of the interrogator is improper, id., at 13 n.6. The court further explained:  “An objective analysis of the circumstances of an encounter and the statements and actions of the parties to it provides the most accurate assessment of the ‘primary purpose of the interrogation.’   The circumstances in which an encounter occurs e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards—are clearly matters of objective fact.   The statements and actions of the parties must also be objectively evaluated.   That is, the relevant inquiry is not the subjective or actual purpose of the individuals involved in a particular encounter, but rather the purpose that reasonable participants would have had, as ascertained from the individuals' statements and actions and the circumstances in which the encounter occurred.”  Id., at 13.

Turning to the interview of F.P., an objective evaluation of the circumstances in which the encounter occurred and the statements and actions of the parties reveals that the primary purpose of the interview was to establish past events to assist the governmental investigations of the defendant, both by DCF and the police, and for possible later use in court proceedings.   First, the statement by Byrne, corroborated by Dyton, that the interview was conducted for medical purposes is not dispositive.   Byrne's subjective intent in questioning F.P. plays no part in this inquiry.⁶  Michigan v. Bryant, supra, 13 n.6. Second, it is clear that there was no ongoing emergency.   F.P. was not living with his father and he had not had contact with his father for at least one month.   The purpose of the interview was undoubtedly to elicit information regarding past events.   Moreover, it is undisputed that the interview of F.P. involved a collaboration by CAC with DCF and law enforcement.   CAC was established so that child victims of sexual assault could be interviewed once regarding the assault and the results of that interview are shared with DCF and law enforcement to be used for their purposes.   This arrangement serves the laudable goal of reducing the number of times a child is interviewed thereby minimizing the trauma produced by repetitive recitations of the abuse.   It also has the inevitable result that a function of the interview is to gather facts for use in government investigations.   In fact, CAC describes itself on its website as “a safe place where children who are suspected victims of sexual abuse can get the support and treatment they need at the same time that evidence is gathered to stop the abuse and bring perpetrators to justice.”   In addition, an express purpose of the interview, according to the CAC website, is “evidence collection.”   Even if Byrne had her own medical purpose in interviewing F.P., by also interviewing F.P. to gather evidence to be used in governmental investigations and in a potential criminal prosecution, her interview was a substitute for and functioned as a police interrogation.   See Bobadilla v. Carlson, 575 F.3d 785, 793 (8th Cir.2009).   An objective review of the circumstances surrounding the interview and the interview itself make it crystal clear that evidence collection was, in fact, the overriding purpose of the interview.   See State v. Henderson, 284 Kan. 267, 293 (2007) (“While one purpose of the interview was to enable some assistance to [the child victim], the circumstances of this case objectively indicate that its primary purpose was to establish past events potentially relevant to a later criminal prosecution of Henderson”);  State ex rel. Juvenile Dep't v. S.P., 346 Or. 592, 624 (2009) (recognizing that statements to a child abuse evaluation team served dual purposes of providing treatment to the victim and obtaining evidence against the accused, but holding that statements in a formal setting, in response to structured questions about past events asked by persons who were proxies for law enforcement, were testimonial);  State v. Snowden, 385 Md. 64, 91 (2005) (“The fact that there is a therapeutic element to the interviews does not eclipse the overriding fact that the interviews were designed to develop testimony that may be used at trial”);  and U.S. v. Bordeaux, 400 F.3d 548, 556 (8th Cir.2005) (The fact that the statements of a child sexual abuse victim may have also had a medical purpose does not change the fact that they were testimonial).

F.P. had made allegations of sexual abuse against the defendant prior to the interview.   As a result, a joint DCF and police investigation was in process at the time of the interview.   In fact, Kathy Vera, a DCF investigator, arranged for the interview of F.P. at CAC. The interview was scheduled at a time to enable Detective Glimpse of the New Britain police department to be present to observe the interview.   It is the policy and practice of CAC to allow representatives from DCF and law enforcement to observe the interview through a one-way mirror and Vera did observe the interview of F.P. It is also the policy and practice of CAC to allow DCF and police officers to suggest questions for the interviewer to ask the child, including recessing the interview to accommodate such requests.⁷  The interview of F.P. was videotaped and a recording of the interview was copied on a DVD so that it could be provided to the police.   Prior to the interview of F.P., his mother was asked by CAC to sign, and she did sign, a release authorizing DCF and law enforcement to observe the interview and authorizing the release of information regarding the interview to DCF and the police, including the provision to the police of a DVD of the interview.   These facts establish that CAC was acting at the behest of DCF and law enforcement in scheduling, conducting and recording the interview of F.P. on February 28, 2011.   Byrne was serving as a proxy for DCF and the New Britain police in conducting the interview of F.P. and the interview itself functioned as a DCF and police interrogation.   See In re Rolandis G., 232 Ill.2d 13, 32 (2008) (the objective circumstances indicate that the statements of a child sex abuse victim to a forensic interviewer at a child advocacy center were the product of an interrogation conducted on behalf of the police intended to gather information for future prosecution where the interview took place at the behest of the police, was witnessed by the police, and a copy of the videotaped interview immediately turned over to the police upon completion of the interview);  and State of Oregon v. Pitt, 209 Or.App. 270 (2006) (Forensic interviewer at a child advocacy center was acting as an agent for the police where interviewer elicited statements from a young child for the express purpose of furthering a police investigation of sexual abuse, with a police officer recording the interview).

Further, the attributes of the interview itself establish that it was for forensic or litigation purposes, not for clinical or medical purposes.   Byrne, the interviewer, used the RATAC protocol in questioning F.P. Dr. Eiswirth testified that the RATAC protocol was developed for forensic purposes, that is, to obtain a complete and clear statement from a child victim of sexual abuse that could be submitted to court.   In Dr. Eiswirth's experience, the RATAC protocol has never been used for clinical purposes.

Moreover, there are aspects of the RATAC protocol that are neither appropriate to a medical history interview nor serve a medical purpose.   The RATAC interviewer is instructed in eliciting details of abuse to “understand the multifaceted perspectives of law enforcement, child protection, and prosecuting attorneys ․” “The Cornerhouse Forensic Interview Protocol:RATAC,” 12 T.M. Cooley J. Pract.   & Clinical L. 193, 299 (2010).   The RATAC protocol also requires interviewers to gather facts that can be corroborated.  Id., 306.   The protocol further suggests that interviewers “elicit information from the child, which in turn could be used for corroboration by investigators.”   Id., at 306–07.   The RATAC protocol includes interview aids, such as anatomical diagrams and anatomical dolls.  Id., at 307–12.   As Dr. Eiswirth testified, these aids have no clinical utility.

The interview of F.P. was conducted in a manner that supports the conclusion that it was performed for forensic, rather than medical, purposes.   The information obtained in an interview seeking a medical history is cloaked in confidentiality.   An interview for medical purposes would not be preceded by a request for the release of information, particularly one authorizing the release of information to the police.   In addition, medical professionals seeking a medical history from a patient would not allow their interviews to be observed by non-medical personnel, such as DCF and police officers.   Further, a medical professional would not routinely make a recording of a medical history interview and he would certainly not do so in order to provide a copy to law enforcement.   See State ex rel. Juvenile Dep't v. S.P., 218 Or.App. 131, 154, affirmed, 346 Or. 592, 624 (2009) (In distinguishing a forensic interview from the practices of an individual pediatrician, the court observed that an individual pediatrician does not as a matter of routine invite police officers to observe patient interviews from behind one-way mirrors;  generally does not send medical diagnostic reports to law enforcement agencies and does not seek and obtain information with the conscious concurrent purpose of preserving that information to assist possible future prosecutions).

The formality of the interrogation is a significant factor in the determination of the primary purpose of the questioning.  Michigan v. Bryant, supra, 19.   The videotaping of the interview strongly suggests that the questioning of F.P. was for a testimonial purpose.   R. Mosteller, “Testing the Testimonial Concept and Exceptions to Confrontation:  ‘A Little Child Shall Lead Them,’ “ 82 Ind. L.J. 917, 975 (2007) (“Even though not a per se indicator of the testimonial character of the statement, videotaping or other mechanical recording should be taken as a strong indicator of the questioner's testimonial purpose”).   The utilization of a structured questioning protocol, the use of an observation room to enable DCF investigators and the police to view the interview, and the practice of taking recesses to allow DCF and the police to suggest questions also add a formality indicative of a testimonial purpose.   See State v. Bentley, 739 N.W.2d 296, 300 (Iowa 2007) (The use of structured questions, an observation room and video equipment were all indicia of the formality of the questioning of child sex abuse victim and evidence of a testimonial purpose).

All of the above facts collectively establish that the overriding purpose of the questioning of F.P. was to gather facts to be used by DCF and the police in their investigations of F.P.'s claims of sexual abuse by the defendant, including the potential use of that evidence in court proceedings, be it a civil abuse and neglect proceeding or a criminal prosecution, or both.   Accordingly, the statements made by F.P. on February 28, 2011 are not admissible at trial as either statements made for purposes of medical treatment or as statements by a child under the tender years exception to the hearsay rule.

BY THE COURT

Jon M. Alander

Judge of the Superior Court

FOOTNOTES

FN1. Code of Evidence section 8–3(5) provides in relevant part that the following is not excluded by the hearsay rule:  Statement for purposes of obtaining medical diagnosis or treatment.   A statement made for purposes of obtaining a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or treatment.Code of Evidence section 8–10 provides in pertinent part:  (a) Notwithstanding any other rule of evidence or provision of law, a statement by a child under thirteen years of age relating to a sexual offense committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent authority over the child, shall be admissible in a criminal or juvenile proceeding if:  (1) The court finds, in a hearing conducted outside the presence of the jury, if any, that the circumstances of the statement, including its timing and content, provide particularized guarantees of its trustworthiness, (2) the statement was not made in preparation for a legal proceeding, (3) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement including the content of the statement, the approximate time, date and location of the statement, the person to whom the statement was made and the circumstances surrounding the statement that indicate its trustworthiness, at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and (4) either (A) the child testifies and is subject to cross-examination at the proceeding, or (B) the child is unavailable as a witness and (i) there is independent nontestimonial corroborative evidence of the alleged act, and (ii) the statement was made prior to the defendant's arrest or institution of juvenile proceedings in connection with the act described in the statement..  FN1. Code of Evidence section 8–3(5) provides in relevant part that the following is not excluded by the hearsay rule:  Statement for purposes of obtaining medical diagnosis or treatment.   A statement made for purposes of obtaining a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or treatment.Code of Evidence section 8–10 provides in pertinent part:  (a) Notwithstanding any other rule of evidence or provision of law, a statement by a child under thirteen years of age relating to a sexual offense committed against that child, or an offense involving physical abuse committed against that child by a person or persons who had authority or apparent authority over the child, shall be admissible in a criminal or juvenile proceeding if:  (1) The court finds, in a hearing conducted outside the presence of the jury, if any, that the circumstances of the statement, including its timing and content, provide particularized guarantees of its trustworthiness, (2) the statement was not made in preparation for a legal proceeding, (3) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement including the content of the statement, the approximate time, date and location of the statement, the person to whom the statement was made and the circumstances surrounding the statement that indicate its trustworthiness, at such time as to provide the adverse party with a fair opportunity to prepare to meet it, and (4) either (A) the child testifies and is subject to cross-examination at the proceeding, or (B) the child is unavailable as a witness and (i) there is independent nontestimonial corroborative evidence of the alleged act, and (ii) the statement was made prior to the defendant's arrest or institution of juvenile proceedings in connection with the act described in the statement.

FN2. Byrne described the interview as a “diagnostic interview.”   Both Byrne and Regina Dyton, the program manager for CAC, testified that the terms “diagnostic interview” and “forensic interview” are used interchangeably at CAC. For purposes of this hearing, the short hand term used to describe the interview at CAC is not determinative of the nature of the interview..  FN2. Byrne described the interview as a “diagnostic interview.”   Both Byrne and Regina Dyton, the program manager for CAC, testified that the terms “diagnostic interview” and “forensic interview” are used interchangeably at CAC. For purposes of this hearing, the short hand term used to describe the interview at CAC is not determinative of the nature of the interview.

FN3. Much of the information regarding the RATAC protocol is contained in “The Cornerhouse Forensic Interview Protocol:  RATAC,” 12 T.M. Cooley J. Pract.   & Clinical L. 193 (2010), which was submitted as an exhibit at the hearing..  FN3. Much of the information regarding the RATAC protocol is contained in “The Cornerhouse Forensic Interview Protocol:  RATAC,” 12 T.M. Cooley J. Pract.   & Clinical L. 193 (2010), which was submitted as an exhibit at the hearing.

FN4. The statements' testimonial purpose would mean that they were not made for purposes of obtaining medical diagnosis or treatment as required for admission pursuant to Code of Evidence sec. 8–3(5) and that they were made in preparation of a legal proceeding precluding their admission pursuant to Code of Evidence sec. 8–10..  FN4. The statements' testimonial purpose would mean that they were not made for purposes of obtaining medical diagnosis or treatment as required for admission pursuant to Code of Evidence sec. 8–3(5) and that they were made in preparation of a legal proceeding precluding their admission pursuant to Code of Evidence sec. 8–10.

FN5. The U.S. Supreme Court specifically did not define the term “interrogation,” but it did expressly note that it was using it in the colloquial sense, not in any technical legal sense.  Davis v. Washington, 547 U.S. 813, 822 (2006)..  FN5. The U.S. Supreme Court specifically did not define the term “interrogation,” but it did expressly note that it was using it in the colloquial sense, not in any technical legal sense.  Davis v. Washington, 547 U.S. 813, 822 (2006).

FN6. I do not doubt that Byrne had, as she testified, the subjective intent of gathering information for medical purposes.   The question, however, is what purpose a reasonable participant would have had in conducting the interview.  Michigan v. Bryant, supra, 13..  FN6. I do not doubt that Byrne had, as she testified, the subjective intent of gathering information for medical purposes.   The question, however, is what purpose a reasonable participant would have had in conducting the interview.  Michigan v. Bryant, supra, 13.

FN7. Such a recess did not occur during the interview of F.P., apparently, because F.P. abruptly ended the interview..  FN7. Such a recess did not occur during the interview of F.P., apparently, because F.P. abruptly ended the interview.

Alander, Jon M., J.