## Facts

- Joe Vigil, John Kohl, and Brett Brown drank at Brown’s home while Brown’s seven-year-old son, J.W., was present.
- Brown later found Vigil and J.W. partially undressed with their bodies touching; Vigil fled.
- J.W. cried and told Brown and Kohl that Vigil had sodomized him and that his “butt hurt.”
- Police located Vigil; he said he had “done bad” and then stabbed himself.
- At a hospital exam, J.W. responded to the treating doctor’s questions about pain by indicating his anus; the exam revealed semen.
- J.W. did not testify at trial; the prosecution offered (1) J.W.’s statements to Brown and Kohl, (2) J.W.’s statements to the treating physician, and (3) a videotaped forensic interview conducted by a police investigator.
- Vigil was convicted of sexual assault on a child.

## Issues

1. Whether a child victim’s statements to a treating physician for medical diagnosis or treatment are “testimonial” under the Sixth Amendment Confrontation Clause as construed in *Crawford* when the child does not testify and there was no prior cross-examination.
2. Whether admission of a videotaped, police-conducted forensic interview of the child (testimonial hearsay) required reversal under plain-error review when no confrontation objection was made at trial.

## Decision

- The court held that the child’s statements to the treating physician were not testimonial and were properly admitted.
- The court held that the videotaped police interview was testimonial and its admission violated the Confrontation Clause.
- Because the confrontation claim as to the videotaped interview was unpreserved, the court applied plain-error review and found no plain error given the strength of the remaining evidence.
- The court reversed the court of appeals in part and reinstated the conviction.

## Legal Principles

- The Confrontation Clause bars admission of testimonial hearsay unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.
- Statements made primarily for medical diagnosis or treatment to a treating physician, rather than to create evidence for prosecution, are generally non-testimonial and may be admitted without violating the Confrontation Clause.
- A police-conducted forensic interview designed to establish past events for potential prosecution is testimonial; admitting it without cross-examination is constitutional error.
- Unpreserved Confrontation Clause violations are reviewed for plain error; reversal is not required unless the error is obvious and so undermines trial fairness as to cast serious doubt on the reliability of the conviction.
- Confrontation Clause violations are trial errors subject to harmless-error or plain-error analysis, depending on preservation.

## Conclusion

The court distinguished medical-treatment statements from investigative police questioning after *Crawford*, holding that a child’s statements to a treating doctor were non-testimonial and admissible, while a videotaped police forensic interview was testimonial but its erroneous admission did not warrant reversal under plain-error review due to substantial independent evidence of guilt.


People v. Vigil, 127 P.3d 916 (Colo. 2006)