Oral Argument Preview: The Crawford Testimonial Tangle: Are a Student’s Statements to his Teachers Regarding Abuse Testimonial or Non-Testimonial? State v. Darius Clark.

Update: On October 30, 2013 the Supreme Court handed down a merit decision in this case. Read the analysis here.

Read the analysis of the oral argument here.

On January 23, 2013, the Supreme Court of Ohio will hear oral argument in the case of State v. Clark, 2012-0215.  At issue in this case is whether a child’s statement to his teachers regarding physical abuse constitute testimonial evidence barred by the Confrontation Clause when the child is unavailable to testify.


Minors L.P. and A.T. lived with their mother, Tahaim Traywick, and her boyfriend, Darius Clark.  Traywick would occasionally leave town for extended periods of time, leaving the two children in Clark’s care.  On March 16, 2010, Traywick left the children with Clark for an indeterminate length of time.  On March 17, 2010, L.P.’s preschool teachers, Ramona Whitley and Debra Jones, notice welts on L.P.’s face.  Whitley and Jones asked L.P. what happened.  L.P. responded with several different answers – one of which was “Dee did it,”  “Dee” is what L.P. called Clark.  Pursuant to the mandatory reporting requirements, Whitley and Jones notified the proper authorities of the situation.  L.P. and A.T. returned home with Clark.

On March 18, 2010, Sarah Bolog, a social worker, went to Clark’s mother’s home to find the children.  L.P. and A.T. were taken to the hospital.  L.P. had bruises in various stages of development and abrasions consistent with being whipped by a belt.  A.T. had bruises, burn marks, a swollen hand, and marks on her hairline consistent with her braids being ripped out.  These injuries occurred between February 28, 2010 and March 18, 2010.  More than one caregiver had access to the children during this period.

Clark was charged with multiple counts of child endangerment, felonious assault and domestic violence. The trial court found three-year-old L.P. incompetent to testify, and denied Clark’s motion to exclude L.P.’s out of court statements identifying “Dee” as his abuser. The trial judge allowed seven witnesses—including his preschool teachers, police officers, social workers, his grandmother and his aunt to testify as to what L.P. had told them. The jury found Clark guilty of all but one charge.  He was sentenced to twenty-eight years in prison.  Clark appealed his conviction.

Court of Appeals Decision

The Eight District Court of Appeals overturned the conviction and remanded the case for a new trial.  The appeals court found that all of L.P.’s out-of-court statements were inadmissible. Only the statements to his teachers are at issue in this appeal. As to those statements, the appellate court expressly found that the statement “Dee did it” was testimonial because the primary purpose of the preschool teachers’ questioning was to report the potential child abuse to law enforcement.

Key Precedent

Crawford v. Washington, 541 U.S. 36 (2004).

In Crawford, the U.S. Supreme Court rejected the reliability rationale of Ohio v. Roberts.  Where testimonial evidence is at issue, the Sixth Amendment demands that if the declarant is unavailable, the defendant must be given a prior opportunity for cross examination.  But Crawford did not define “testimonial,” leaving that for future development.

Davis v. Washington, 547 U.S. 813 (2006). Hammon v. Indiana, 547 U.S. 813 (2006).

In 2006, the U.S. Supreme Court decided this pair of domestic violence cases the same day to further flesh out the distinction between testimonial and nontestimonial statements by formulating what has become known as the primary-purpose test.

Statements are non-testimonial when their primary purpose is to help police respond to an ongoing emergency.

By contrast, statements are testimonial when their primary purpose is to gather evidence to help prove a crime.

Four factors guide the evaluation of the testimonial character of statements: 1) was the declarant speaking about events as they were happening; 2) was the declarant facing an ongoing emergency; 3) were the statements necessary to resolve a present emergency; 4) the formality of proceedings.

Read more about Crawford and progeny here.

State v. Arnold, 126 Ohio St.3d 290 (2010).

The Ohio Supreme Court held that statements to interviewers at a child advocacy center made for medical diagnosis and treatment are non-testimonial and are admissible.  However, statements made at the child advocacy center primarily for forensic or investigative purposes are testimonial and are inadmissible.  The original purpose for which the statement was made is controlling.  The members of the child advocacy center retain their autonomy and neither police officers nor medical professionals become agents of the other.

Evid. R. 807 provides that any out-of-court statement provided by a child under 12 is excluded as hearsay unless four requirements set forth in the rule are met.

State’s Argument

The State argues that L.P.’s statements to his pre-school teachers are non-testimonial since L.P. did not intend his statements to be used as part of an investigation for use at trial.  Rather, L.P was responding to inquires by his teachers regarding his health, safety, and welfare.  The identity of L.P.’s abuser was not sought after but spontaneously volunteered by L.P.  Under Crawford and Davis, statements are testimonial only if the individual making the statement would objectively believe the statement was primarily for the purpose of assisting in an investigation for later use at trial.  The purpose of the questioner is only relevant if it would affect the purpose of the person making the statement. Here the primary purpose of the teachers was L.P.’s continued health, safety and welfare.

L.P.’s statement identifying Clark as his abuser was thus a non-testimonial statement.  To assure that L.P. and A.T. did not return to a dangerous situation, the identity of their abuser was imperative.  No evidence suggests that an objective three year old would expect his statements to a teacher to later be used at trial.  Under Arnold, the fact that the teachers were mandatory reporters of child abuse does not transform L.P.’s non-testimonial statement into a testimonial one, since the purpose of the teacher’s questioning would not have influenced L.P.’s statement.

Finally, the state argues that while the Court of Appeals did analyze L.P.’s statements to his aunt and grandmother under Evid. R. 807, it never reviewed the statement made by L.P. to his teachers under the rule, and only the statement to the teachers is before the high court. Therefore, Clarks argument that this appeal was improvidently allowed is without merit.

Clark’s Argument

Clark argues that the State’s appeal was improvidently allowed since the State only challenges the Eighth District’s conclusion that L.P.’s statements are barred by the Confrontation Clause and does not challenge the appeals court’s determination that the statements were inadmissible under Evid. R. 807 because they lacked “particularized guarantees of trustworthiness.”  Regardless of whether the statements are barred by the Confrontation Clause, the statements are still inadmissible under Evid. R. 807.  The State simply seeks an advisory opinion.

The Eighth District concluded that L.P.’s  statements to his grandmother and aunt did not meet the first of the four requirements for admission under Evid. R. 807 – particularized guarantees of trustworthiness – since he was not even deemed competent to testify.  Applying this reasoning to L.P.’s statements to his teachers, the statements are equally devoid of guarantees of trustworthiness and must be barred.  Since the state did not challenge the Eighth District’s Evid. R. 807 holding, the State, by implication, concedes its validity. On remand, regardless of whether L.P.’s statements to his teachers violated the Confrontation Clause, they are still inadmissible under Evid.R. 807.

Furthermore, the State’s Proposition of Law should be rejected.  The teachers were acting as agents of law enforcement when they questioned L.P. The law imposes a mandatory reporting requirement on teachers who suspect child abuse; under theses circumstances, the teachers are an extension of law enforcement.  The primary purpose of the teachers’ questions was to establish or prove past events for later use at trial.  The primary purpose of the interrogation should focus on the statement itself and the objective circumstances surrounding it – not the intent and expectations of the person making the statement.  Here, the teachers understood their duty to report abuse and L.P.’s statement was made in response to a question to indentify his abuser – information relevant at a later trial.  The teacher’s primary purpose was not for medical diagnosis or treatment but rather purely investigative.  Although the teachers may have a dual purpose to care for the safety of L.P. and A.T., the issue is whether the teacher’s question triggered the Confrontation Clause despite a concurrent non-testimonial purpose.

State’s Proposed Proposition of Law

Statements made to teachers by children during an interview to identify suspected child abuse and protect the future safety and welfare of that child, are non-testimonial and thus are admissible without offending the Confrontation Clause.

Clark’s Proposed Counter Proposition of Law

Whatever decision this Court reaches with respect to the State’s Proposition of Law, that decision will have no bearing on the outcome of Mr. Clark’s case.  As a consequence this court should dismiss the State’s appeal as improvidently allowed.

Amicus Brief in Support of the State of Ohio

An amicus brief was filed by the Ohio Attorney General in support of the State of Ohio.

Attorney General’s Proposed Proposition of Law:

Statements made by a child in response to questions asked by a teacher, without participation by law enforcement, for the purposes of ensuring the child’s health and safety and eliminating the threat of future harm, are non testimonial for purposes of the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

The amicus brief argues that teachers are the equivalent of first responders addressing an ongoing emergency.  Thus, when a teacher asks a child about suspected abuse the teacher is doing so to protect the child and prevent the child from being returned to the person abusing them, not to prosecute the offender.  The primary purpose of the law mandating teachers to report suspected abuse is to protect children, not to punish offenders.  The admissibility of L.P.’s statement turns on the primary purpose of the questioning by Whitley and Jones, which was to identify the cause of L.P.’s injuries and protect him from future injury, not establish or prove past events for later use at trial.  Additionally, statements to teachers do not bear any of the characteristics traditionally associated with testimonial statements made for use at trial.  That a teacher is required to report suspected abuse does not convert otherwise non-testimonial statements into testimonial ones.

If the state does prevail in its appeal, the trial court will have to determine for the first time whether L.P.’s statements are admissible as a hearsay exception under Evid. R. 807.

Amicus Brief in Support of Clark

An amicus brief was filed by the office of the Ohio Public Defender (“OPD”) in support of Clark.

The amicus brief argues that L.P.’s statement to Whitley and Jones was not made for a medical diagnosis or treatment, nor was the statement made during an ongoing emergency, therefore, the statement was testimonial and inadmissible.  The speculative, future threat of potential child abuse does not rise to an ongoing emergency.  The teachers were not asking ‘what is happening’ but rather ‘what happened.’ To allow the latter would destroy the subtle balance created by Davis and Hammond.  Furthermore, given the teachers’ requirement to report abuse, the primary purpose of their questioning was to report the abuse to law enforcement.  Coupled with the teacher’s mandatory requirement to report, the absence of medical or emergency purposes makes the primary purpose of the teacher’s questions investigative.

Student Contributor: Katlin Rust

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