Update: On October 30, 2013 the Supreme Court handed down a merit decision in this case. Read the analysis here.
On January 23, 2013, the Supreme Court head oral argument in State v. Darius Clark, 2012-0215. The issue in the case is whether a child’s statement to his teachers about physical abuse constitutes testimonial evidence barred by the Confrontation Clause when the child has been found incompetent to testify.
Darius Clark was charged with multiple counts of child endangerment, felonious assault, and domestic violence of his girlfriend’s children, A.T, and L.P. After a hearing by the trial judge, L.P., then aged four, was found incompetent to testify. L.P. told a number of people that “Dee (which is what L.P. called Clark) did it.” The trial judge allowed seven witnesses—including his preschool teachers, police officers, social workers, his maternal grandmother and his maternal great 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.
On appeal, the Eighth 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. Because L.P. was not available for cross examination, the appeals court held the admission of L.P.’s statements to his teachers–the only ones challenged in this state’s appeal– violated Clark’s confrontation right pursuant to the Sixth Amendment to the United States Constitution and Article I Section 10 of the Ohio Constitution. Read the oral argument preview of the case here.
At Oral Argument
An assistant Attorney General—amicus in the case—argued for the state. He was to divide time with the county prosecutor’s office, but because of an illness, the assistant AG took the entire argument.
The state argued that under Crawford and progeny, and under the Ohio Supreme Court’s decision in State v. Arnold, the admissibility of out of court statements is analyzed by the primary purpose test. When a teacher observes an injured student, and asks the student how those injuries occurred, any resulting statements are non-testimonial and their admission is not barred by Confrontation Clause. The statements are non-testimonial because the primary purpose of the questioning was not to create evidence for later use at trial. Rather, it was to identify how the child became injured, then to determine what immediate steps needed to be taken to address those injuries, and finally, to determine what needed to be done to protect the child from future injury. Just because a statement may have a secondary purpose doesn’t change its primary purpose, which was to look out for the children’s health and well being.
Further, while the Court of Appeals found the admission of L.P.’s statements to his grandmother and great aunt improper under Evid. R. 807 —the hearsay exception for child statements in sex abuse cases—no Rule 807 analysis was ever done on L.P.’s statement to his teachers. That finding cannot be used to include L.P’s statement to his teachers, because Evidence Rule 807 requires an individual analysis of each specific statement.
While it is true that teachers are among those who must report suspected child abuse pursuant to R.C. 2151.421, the appeals court was incorrect when it created a bright line rule that all statements to mandatory reporters are testimonial. The case must be reversed, and remanded for a proper 807 analysis on the statement LP made to his teachers.
Defense counsel agreed that there should not be a bright line rule that any statement made to a mandatory reporter is testimonial evidence, but disagreed that the Court of Appeals created such a rule. Rather, the Court of Appeals correctly held that in this case, L.P.’s statement to his teachers was testimonial because the primary purpose of the questioning was to channel the information to law enforcement for later use at trial. The questioning focused solely on the past, and not on any ongoing emergency, as demonstrated by the fact that the teachers let L.P. return home with Clark.
Defense counsel also argued that the case should be dismissed as improvidently allowed, because the trial court’s finding about L.P.’s incompetence to testify is the law of the case, and any attempt to re-raise the issue is res judicata. Furthermore, the trial court has already found the child’s statements to his great aunt and grandmother incompetent, and found the child incompetent to testify at trial, so it would be inconceivable that the child’s statement about two weeks after the statements to his great aunt and grandmother is suddenly reliable.
Admissibility requires two things—compliance with the Confrontation Clause and Ohio’s rules of evidence. This is an out of court statement offered for its truth, and therefore it needs a hearsay exception. The only pertinent exception here is Evidence Rule 807, and the appeals court has affirmed the fact that the child was incapable of making an 807 statement—a finding the state did not challenge on appeal. In fact, the state could have taken an interlocutory appeal on this point, but did not.
What Was on Their Minds
The Evidence Rule 807 Issue
Aren’t the statements to the teachers going to be barred anyway under this evidence rule, Justice French asked the AG right out of the box. Later she got defense counsel to concede that the appeals court did not analyze the statements to the teachers under Evid.R. 807. Should the high court infer that the appeals court would have made the same determination about the statements to the teachers? When defense counsel answered yes, she asked if it wouldn’t be better to send the case back and let the court make its own determination, noting that the state’s proposition of law did not involve the evidence rule.
Chief Justice O’Connor and Justice Lanzinger also noted that the appeals court had not analyzed the statements here at issue under Evid. R. 807.
Would the state be prevented from offering any other reasons for allowing the statements in on retrial, asked Justice Lanzinger?
Chief Justice O’Connor noted that any time a statement is allowed into evidence other than by the declarant, the crucible of cross-examination is missing—why is this different?
Was defense counsel suggesting that if a child is declared incompetent to testify at trial, nothing that child said could ever be admitted, asked Justice O’Neill? (no, he wasn’t going that far, nor had the appeals court.) And did the AG agree that the Evid. R. 807 issue was res judicata? (only the statements to the great aunt and the grandmother, he replied).
Could the statement have come in under another hearsay exception, asked Justice Lanzinger?
Testimonial versus Non-Testimonial—How Does the Trial Court Decide?
Does the attempt to figure out what happened in the past remove them from the non-testimonial category, asked Justice Lanzinger? And does the primary purpose test even make sense with a very young child?
What record evidence was there for the appeals court to determine the primary purpose, asked Justice O’Donnell?
Must there always be an ongoing emergency to make statements non-testimonial, asked Chief Justice O’Connor?
Can’t Teachers Just Be Nurturing?
Asked Chief Justice O’Connor. Does performing the nurturing role suddenly become a testimonial event? And did they even have the right to refuse to send the children home with Clark?
Involving Law Enforcement
Different result if the teachers had called law enforcement and the investigators asked the questions, asked Justice Lanzinger? (absolutely, the state conceded.)
Were the teachers acting as agents of the state and of the police in their questioning, asked Chief Justice O’Connor?
Are we now saying that every time a teacher says good morning to a student she is trying to elicit evidence of abuse, asked Justice O’Neill? How did the court find that the primary purpose was to gather evidence?
Justice Pfeifer, who dissented in Arnold, discussed how troubling he found cases with such severe penalties being bolstered by the testimony of the professional—here a teacher—rather than having the jury see the child, whose actual statement may have been much softer and more equivocal. Should there be a relaxed standard in juvenile court for the removal of a child in an endangered situation, but a much more stringent standard to convict someone in criminal court based on the statement of a three year old?
What Rule Should We Write?
Asked Justice O’Donnell, as he almost always does. Is there anything new to say other than what we said in Arnold? (he also dissented in Arnold).
How it Looks from the Bleachers
To Professor Bettman
This case was exceptionally well argued by both sides, but looks like a win for the state on the admission of the child’s statement to his teachers. Factually, this case is much simpler than Arnold, with its dual capacity issues. The Court is clearly going to reject a per se rule that any statement made to a mandatory reporter is testimonial—neither side took that position, although the defense argued that it was “part of the calculus. ” And a majority is likely to find that the primary purpose here was the well-being of the children, not to preserve testimony for later use at trial.
The Evidence Rule 807 issue is trickier. The Court is unlikely to dismiss the case as improvidently allowed, or to accept the defendant’s res judicata or law of the case argument. A remand for a specific determination of the statements to the teachers under Rule 807 is likely. It is clear that that the appeals court did not make that determination as to those statements, and the court is not going to infer that determination from the finding as to the aunt and the grandmother. But still, the defense has a very strong point that it would seem impossible for the statements to the teachers to be competent and reliable, when statements two weeks earlier were not, nor was L.P. competent to testify at the time of trial.
Justice Pfeifer may well dissent and further pursue his dual track thoughts.
To Student Contributor Katlin Rust
This one looks like a resounding victory for the State. It appears that the Court did not accept Clark’s proposition that the statements made by L.P. to his teachers were testimonial. Justice O’Neill questioned how the Eighth District determined that the principle purpose of the statements was testimonial. Clark’s response, the teachers asked “what happened” and did not follow up with questions. At this point the Chief Justice vocally chimed in that, yes, in fact the teachers asked a series of questions to get more information on L.P.’s injuries. Justice French was concerned about the Eighth District’s lack of a hearsay analysis on the statements to the teachers. Justice O’Neill voiced concern about a blanket rule that if a child was not found competent to stand trial, anything they said in the past would be excluded also.
The State asked the Court to 1) hold that a mandatory reporting requirement does not automatically render all statements to that individual testimonial and 2) apply Arnold, unless the statements primary purpose is to gather testimony, than the statement is non-testimonial and there is no Confrontation Clause issue. It looks like the State is going to get what it asked for. The only hurdle here is the hearsay ruling that the child’s statements are not reliable because the child is incompetent to testify at trial. For L.P.’s statements to pass the hearsay exception test, it looks like the Court will have to go a bit farther and hold that a determination of incompetence for trial does not automatically render all statements made unreliable for purposes of hearsay rules. Given the State’s appeal, the Court may not be able to go this far.