The U.S. Supreme Court today, October 2, 2014, granted cert. in Ohio v. Clark. 13-1352. The two specific questions presented are:
- Does an individual’s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause?
- Do a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause?
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. At the end of her dissent, the Chief invited the state to take the issue to the U.S. Supreme Court of whether the mandatory duty to report turns the civilian reporter into a law enforcement agent for the purposes of the Confrontation Clause. Her wish has been granted.
Read an analysis of the merit decision in Clark here.