Further Update: on June 18, 2015, the U.S. Supreme Court reversed the Supreme Court of Ohio in this case. Read the analysis here.
Update: On October 2, 2014, the U.S. Supreme Court granted cert. in this case, now captioned Ohio v. Clark. 13-1352.
On October 30, 2013, the Supreme Court of Ohio handed down a merit decision in State v. Clark, 2013-Ohio-4731. In a 4-3 decision written by Justice O’Donnell, for himself and Justices Pfeifer, Kennedy and O’Neill, the Court held that 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. Chief Justice O’Connor wrote a very heated dissent, for herself and Justices Lanzinger and French. The case, one of the oldest submitted cases, was argued January 23, 2013, and continues an on-going disagreement among the justices on this topic, particularly in regard to statements of non-testifying children. To better understand the background underlying this merit decision, please read this In Sharper Focus post.
Three year old L.P. and his two year old sister lived with their mother and her boyfriend Darius Clark. One day at school, one of L.P.’s preschool teachers, Ramona Whitley, noticed that L.P.’s left eye was bloodshot and bloodstained. In better light, Whitley noticed other marks on his face. Whitley contacted the class lead teacher, Debra Jones, who contacted her supervisor. Upon questioning by the teachers about what happened, L.P. mentioned the name Dee, whom he said was a “big” person.
As a person required by law to report suspected child abuse, Whitley contacted the authorities. A social worker arrived at the school. As the social worker was questioning L.P., Clark arrived, denied any responsibility, and left with L.P. The next day a social worker found both children at the home of Clark’s mother, and took them to the hospital, where a doctor determined both had been abused.
Ultimately, Clark was charged with multiple counts of child endangerment, felonious assault, and domestic violence. The trial judge found L.P. incompetent to testify at trial, but 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. Only the ruling on L.P.’s statement to his pre-school teachers is challenged in this state’s appeal. Read the oral argument preview of the case here and the analysis of the oral argument here.
All the relevant precedent for this case is analyzed in this In Sharper Focus post
List of those required to report known or suspected child abuse.
Justice O’Donnell’s majority decision begins with the fact that school teachers are among those required by statute to report known or suspected child abuse. A key purpose of the mandatory reporting statute is the prosecution of offenders who abuse children. Another purpose, of course, is the protection of children. This point, while obvious, forms a major point of disagreement between the majority and the dissent in this case.
Majority Applies the Primary Purpose Test; Find Statements Testimonial
Ohio adopted the primary purpose test in 2007 in State v. Siler adopted from Davis v. Washington. The majority applied this test, reaffirmed in this case, because when questioning a child about suspected abuse, teachers acts in a dual capacity-as instructors and, because of their duty to report abuse, as agents of the state for law enforcement purposes.
The Court found that the primary purpose of the teachers’ questioning in this case was to gather evidence for a subsequent criminal prosecution. There was no ongoing emergency at the time the teachers questioned L.P. L.P. did not complain of his injuries, had no need for immediate medical attention, and none was provided. Thus, the statement L.P. made to his teachers was testimonial, and its admission violated the defendant’s rights under the Confrontation Clause.
Here is how Chief Justice O’Connor began her dissent:
“The majority decision creates confusion in our case law, eviscerates Evid.R. 807, and threatens the safety of our children. Not surprisingly, it is also wrong as a matter of federal constitutional law.”
Strong opinion to follow.
Majority Applied the Wrong Test. Statements Clearly NonTestimonial.
The key disagreement with the majority in this case is the test to be applied to the statement at issue. Chief Justice O’Connor emphatically disagreed that teachers become agents of law enforcement merely because they are required to report child abuse. She believes the objective witness test, adopted by the Court in 2006 in State v. Stahl, applies when the questioner is not an agent of law enforcement. Under that test, she would find the statements non-testimonial because “no objective witness could reasonably believe the interviews served a prosecutorial purpose rather than a protective one.” Thus the child’s statements to his teachers were nontestimonial, and their admission did not violate the defendant’s rights under the Confrontation Clause.
Existing Precedent and The Open Question
Chief Justice O’Connor emphasized the fact that the U.S. Supreme Court has held that not all statements to police officers are testimonial (citing Michigan v. Bryant ). And she believes that the determination of whether statements are testimonial when made to someone other than law enforcement personnel is an open question under federal law. She notes that the U.S. Supreme Court—which has an extensive, developing body of precedent on this subject—has not decided whether the mandatory duty to report turns the civilian reporter into a law enforcement agent for purposes of the Confrontation clause. By the end of her dissent, she invites the state to take this question up to the U.S. Supreme Court.
O’Connor is convinced that under state law, (and she has authored some of the most pertinent cases on this subject, as has Justice O’Donnell) the test to be applied when the questioner is not someone in law enforcement is the objective witness test, reviewing state precedent on this point (see, In Sharper Focus post). Under the objective witness test, statements made to persons other than law enforcement personnel are testimonial only if “an objective witness would reasonably believe that the questioning served primarily a prosecutorial purpose,” citing Stahl. That is the proper test to apply in this case.
Ohio’s Mandatory Reporting Statute
O’Connor emphatically believes that “a person who asks a child questions about an injury is not acting on behalf of law enforcement merely because she is required to report abuse or suspicion of abuse.” She thinks that this decision by the majority turning a teacher into an agent of law enforcement because of the mandatory reporting duty is the only case so holding in the country. To O’Connor, the primary purpose of the reporting statute is to protect abused and neglected children, not to punish those who maltreat them. Taking care of the children is first; any prosecutorial purpose is secondary.
The Role of Teachers Here.
Teachers required to report are already responsible for the care and protection of children, and the statutory duty to report does not change the main purpose of their interaction with children. O’Connor criticizes the majority for assuming that the only reasons the teachers had for interacting with L.P. were to resolve an emergency or to create evidence against Clark. To her, the teachers were questioning L.P. to protect him and to maintain a safe and structured environment, not to create evidence for use at Clark’s trial.
Why this Case is Unlike Crawford or Hammond
Context matters, wrote the Chief. The questioning of L.P. took place in a classroom, not a police station, nor at a crime scene, nor on a 9-1-1 call. No police were present at the questioning. The questioning was informal, suggesting the teachers were trying to protect L.P. It was fluid and confusing. It took awhile to understand that an adult was involved. An objective witness would reasonably believe the purpose of this questioning was to assess the risk of harm to L.P. and other children, to understand how he had been injured, and if necessary to protect him. It was not to create evidence to prosecute Clark.
Impact of the Majority Decision
O’Connor believes that the majority has effectively overruled Muttart and modified Stahl. She also sees it as undermining Evid. R. 807, which 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. She concludes: “More troubling, the majority creates a beneficial catch-22 for pedophiles and other abusers of children. The very people who have the expertise and opportunity to recognize child abuse are now prohibited in Ohio from testifying about any out-of-court statements that a child makes about abuse or neglect when the child, for whatever reason, is unable to testify.”
Justice O’Donnell’s Rejoinder to the Chief
“The passionate rant of the dissent and its parade of horribles to the contrary, today’s majority decision supports a basic constitutional right guaranteed to all accused of crime by the Sixth Amendment of the United States Constitution: “the right * * * to be confronted with the witnesses against him.” In this case, a three-year-old allegedly uttered a statement identifying Clark but never testified in court because the judge determined him to be incompetent to testify at trial six months after he had uttered the identification.
“Statements elicited from a child by a teacher in the absence of an ongoing emergency and for the primary purpose of gathering information of past criminal conduct and identifying the alleged perpetrator of suspected child abuse are testimonial in nature in accordance with Davis v. Washington, and State v. Siler.”
1. At a minimum, when questioning a child about suspected abuse in furtherance of a duty pursuant to R.C. 2151.421, a teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes.
2. Statements elicited from a child by a teacher in the absence of an ongoing emergency and for the primary purpose of gathering information of past criminal conduct and identifying the alleged perpetrator of suspected child abuse are testimonial in nature in accordance with Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534.
I thought the state was going to win this one. Interestingly, Justice Kennedy went with the majority (if she hadn’t, the line-up would have been the men against the women). She was once a police officer. I suspect that if Justices McGee Brown, Stratton and Cupp had still been on the Court, this case would have gone the other way. I’m casting no value judgment here. I’ve been troubled by how to categorize questions by those serving in a dual capacity. I thought Stahl and Arnold were wrongly decided.
At oral argument the state argued that the primary purpose test was the correct test, which the dissent, siding with the state, rejected. But the state had also argued that the primary purpose of the questioning was to look out for the child’s health and well being—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. Chief Justice O’Connor agreed with all of this, except rejected the primary purpose test in this situation in favor of the objective witness test. At argument the Chief asked whether teachers can’t just be nurturing? Did performing the nurturing role suddenly become a testimonial event?
The Evid. R. 807 issue really didn’t get off the ground here. The trial court never did an 807 analysis on L.P.’s statements, but the court of appeals found the statements improper under that evidence rule. The majority doesn’t mention it at all, because it wasn’t necessary to its holding. I thought the dissent made more of it than the situation warranted. I also thought the dissent went overboard in subsection D, in extending the discussion to persons with developmental disabilities and the elderly. There is no question, though, that questioning of young children raises more nettlesome problems than questioning of adults.
The question of the interplay between the mandatory abuse reporting statutes and the testimonial/non-testimonial distinction is a fascinating one. I hope the state takes up the Chief’s offer and tries to get this into the U.S. Supreme Court.