Some Observations on Ohio v. Clark

Update: on June 18, 2015, the U.S. Supreme Court issued a merit decision in this case.  Read the analysis here.

On March 2, 2015, the U.S. Supreme Court heard oral argument in Ohio v. Clark. The two specific questions involved are

  1. Does an individual’s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause?
  2. 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?

Case Facts

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. said “Dee did it.”

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 found the statements to relatives inadmissible under Evid. R. 807, and the rest inadmissible under the Confrontation Clause.

The only statements at issue in the appeal to the Supreme Court of Ohio were L.P.’s statements to his teachers.

Supreme Court of Ohio Merit Decision

The merit decision in this case, State v. Clark, 2013-Ohio-4731, was handed down on October 30, 2013. In a 4-3 decision written by Justice Terrence O’Donnell, for himself and Justices Paul Pfeifer, Sharon Kennedy and Bill 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 Maureen O’Connor wrote a very heated dissent, for herself and Justices Judy Lanzinger and Judi French. They would find the statements nontestimonial and thus admissible for use against Clark.

The Testimonial/Nontestimonial Distinction

This jurisprudence has evolved since the seminal case of 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.

In 2006, on the same day, the U.S. Supreme Court decided Davis v. Washington, 547 U.S. 813 (2006) and Hammon v. Indiana, 547 U.S. 813 (2006), a pair of domestic violence cases 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. Since then, the U.S. Supreme Court has continued to develop this area of case law.  In Michigan v. Bryant,  562 U.S. ___ (2011) the Court greatly expanded the concept of an ongoing emergency in allowing the admission of a statement of a dying man at the scene identifying his killer in response to police questioning, noting that context very much matters.  Key factors the Court found highly important were the victim’s urgent medical condition, the threat to the public of a shooter still at large, and the lack of formality of the police questioning.  Taken together, the primary purpose of the questioning was to meet an ongoing emergency. Thus the statement was nontestimonial, and admissible.

In making this testimonial/nontestimonial distinction, three factors are now key—the intent of the declarant (which is the most significant, and the starting point,) the intent of the questioner, and the circumstances of the questioning.

Back to Ohio—the Mandatory Abuse Reporting  Statute

In Ohio, as in most states, teachers are among those mandatorily required to report suspected cases of child abuse.  To the Clark majority, the primary purpose test, which applies to statements made to law enforcement agents, applies here because teachers become agents of the police because of this mandatory reporting obligation.  The primary purpose here was to help prosecute Clark.

To the dissent, teachers do not become agents of law enforcement just because of the mandatory duty to report.  The objective witness test, not the primary purpose test should apply here, where questioning does not involve law enforcement. Looking at the situation objectively, the purpose of this questioning was to protect L.P. Thus the statements were nontestimonial and admissible.

Pertinent Ohio Evidence Rules

Evid.R. 601(A)

Presumes children under ten who “appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly” are incompetent to testify.

Evid. R. 807

Provides special hearsay exception for statements of children under twelve in abuse cases. In order to be admissible, four requirements must be met: 1) the statement must be trustworthy, (2) the child’s testimony must be unavailable, (3) independent proof of the act must exist, and (4) the proponent must notify all other parties ten days before trial that such a statement will be offered in evidence.

State v. Clark Case Syllabus,

  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 2007-Ohio, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534. (Siler also involved statements made by a three-year-old, to the police, implicating his father in the murder of his mother.)

At the U.S. Supreme Court

Attorneys arguing

Matthew E. Meyer, Assistant Cuyahoga County Prosecutor, for the State of Ohio

Ilana Eisnestein, Assistant to the Solicitor General, as amicus for the State of Ohio

Jeffrey L. Fisher, Professor of Law at Stanford University and Co-Director of the school’s Supreme Court Clinic, for Darius Clark

Ohio’s Argument

The teachers here were strictly private parties. The Ohio Supreme Court erred when it held they were transformed into law enforcement agents for purposes of Confrontation Clause analysis strictly because of their mandatory duty to report abuse. Teachers only have a duty to report, not to investigate, and their duty does not even require them to call the police—calling a social worker is sufficient.

The Confrontation Clause does not apply to statements meant solely for private parties without any police direction. Statements to private parties fall outside the clause, and that was the case here. The rules of evidence should govern these kinds of statements.

Statements made by a child found too young to testify should clearly be found nontestimonial. The fact that the child was found incompetent to testify should mean the child’s statements were not “witness-equivalent” and thus should be deemed nontestimonial.

Even if the primary purpose test is applied, the statements were nontestimonial. L.P. didn’t make the statements to create evidence.  The teachers’ intent was to protect L.P. And the questioning occurred in a roomful of students—scarcely the formality associated with custodial interrogation.

Solicitor General’s Argument in Support of Ohio

The Ohio Supreme Court erred in finding teachers to be agents of law enforcement. They were just doing their regular jobs caring for children.  Teachers aren’t in the business of prosecution or of collecting evidence. The questioning here was informal and spontaneous, not formal or solemn.  The teachers’ obligation here was to call social services, not the police.  The issues in this case should be governed by the hearsay rules, not the Confrontation Clause.

Clark’s Argument

The Supreme Court of Ohio was correct in finding L.P.’s statements to his teachers to be testimonial.  It makes no difference that the questioners were teachers and the accuser a young child. Introduction of L.P.’s statement through the teachers violated Clark’s rights under the Confrontation Clause.

Historically, with the exception of excited utterances, it has long been the case that a child’s statements describing past abuse were inadmissible unless the child testified. Ohio’s special hearsay rule for child witnesses is especially unhelpful—it “dispenses with cross-examination precisely where it is needed most.” Ohio’s special evidence rules on child competency are both unnecessary and totally unfair, and give the state a double advantage. Children must be allowed to give testimony, even if it is outside the courtroom in a therapeutic setting, with  age-appropriate accommodations made, and the defense must be allowed to participate in the process.

What Was on Their Minds

Determining the Intent of Three Year Old

Justices Scalia, Sotomayor, Kagan, Ginsburg and Alito all questioned how on earth a three year old could have intent, as required to apply the primary purpose test. I’ve been wondering that same thing since this decision came out.  “We can all obviously agree that three year olds don’t form any kind of intent to make testimonial statements,” commented Justice Kagan.

Testimonial and Non-Testimonial Statements

What is it about the statement to the teacher that makes it testimonial, asked Justice Sotomayor? Is it the fact that she is a mandatory reporter?

Purpose of this Questioning

Law enforcement or ongoing emergency, asked Justice Sotomayor? Doesn’t deciding the intent of the declarant involve looking at what everyone else is doing?

Can’t a person have both safety and the possibility of criminal prosecution concerns at the same time, asked Justice Alito? How is it realistic to try and determine which purpose is primary? Mirroring the same concern, in a key question, Justice Kennedy asked, “what are we supposed to do if we think 50% of the motivation was to comply with the statute and her duty as a teacher not to send this kind home, and 50% was in order to fulfill the reporting obligation to the police.  Then what do we do?”

A Different Test?

Should there be a different test for people with diminished capacity, Justice Kagan asked? Then, in a key exchange of the day, noting that the primary purpose test doesn’t really fit here, she commented to Professor Fisher:

“It seems to me that the strongest part of your case goes something like this. This is a statement that is going to come in and is going to have great consequence in a trial. It is going to function as the most relevant kind of testimony imaginable, it’s an accusation.  In a case like this, there are two potential parties that could be accused.  Essentially, this is fingering one of them, and it’s being done by a three year old. And the question of whether that’s a particularly reliable way to choose between which of these two potential people did it is like a little bit scary.  And then you’re not being able to question it, you’re not being able to do the things that you normally do.”

Mandatory Duty to Report or Primary Duty to Protect?

When a teacher talks to a student—at least an older one-isn’t the involvement of the police in the back of both of their minds, asked Justice Kagan? Are the police routinely involved when there is any kind of serious injury?

Isn’t protecting a child different from protecting an adult, asked Justice Sotomayor?

In Ohio, does the teacher fulfil her obligation to report simply by telephoning social services, asked Justice Kennedy? Is it a legal requirement in Ohio for social services to report to the police?

Since a three year old has no conception about using the statement in court to prosecute an offender, isn’t the teacher’s concern just the child’s safety, asked Justice Alito? Justice Ginsburg asked almost the same thing, suggesting a teacher’s first thought isn’t prosecution, but protection of the child.  “If you have to decide what is the prime purpose, it seems to me that the well-being of the child has got to be the first thing in the mind of the teacher,” she added later.

Aren’t there states in which all citizens are required to report abuse, asked Justice Kennedy?

The Intersection of Hearsay and Confrontation

Can this statement still be deemed inadmissible under other well-settled hearsay principles, asked Justice Kennedy? Is the Due Process clause implicated as well as the Confrontation Clause?

Was there a hearsay exception involved here, asked Justice Ginsburg?

Isn’t all admissible hearsay a substitute for in-court testimony, asked Justice Alito?

Justice Breyer expressed his concern that the Confrontation Clause would swallow up all the exceptions to the hearsay rule, suggesting the situation was “tailored made for the Due Process Clause,” allowing the individual states to experiment with how best to handle the kinds of issues that have come up in this case.

Incompetency of Child Witnesses in Ohio

If a three year old is incompetent to testify in Ohio in court, why isn’t the statement also incompetent out of court, asked Justice Ginsburg?  How can a substitute be permissible? What good would it do to cross examine a three-year-old? How would cross examination be useful here?

If the child were allowed to testify, could the statement to the teacher also come in, asked Justice Kennedy?

How it Looks From the Bleachers

To Professor Bettman

I won’t even pretend to read these tea leaves.  This jurisprudence is messy, messy, messy.  Several things were evident.  The primary purpose test, with its fundamental emphasis on the intent of the declarant, just doesn’t work well when the declarant is three years old.  And in their reporting role, teachers clearly have mixed purposes-concern with the protection of the children, but also in sending along the information they got for further investigation in deciding whether to prosecute offenders. How to determine which is primary–also a factor in the testimonial/nontestimonial equation, when these intentions are so clearly mixed?

Justice Kagan seemed most sympathetic to the defense argument; Justice Alito, the least, and the most aligned with Chief Justice Maureen O’Connor’s position in the dissent in the Ohio opinion.

The SG suggested one way out–letting the hearsay rules, not the Confrontation Clause, govern the issues here. If the Court does go that route, that clearly favors the state in this case.

Professor Fisher, though, clearly sees Ohio’s Evidence Rule 807 as designed to evade the Confrontation Clause.  He sees a different way out–finding the children competent and letting them testify, under special protective circumstances in which the defense is allowed to participate.

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