On June 18, 2015, the U.S. Supreme Court handed down a merit decision in Ohio v. Clark. In a unanimous decision written by Justice Alito, in which Justice Scalia, joined by Justice Ginsburg, concurred in judgment only, and Justice Thomas wrote a solo separate concurrence in judgment only, the Court held that the admission of a young child’s out-of-court statements to his teachers identifying the defendant as his abuser did not violate the Confrontation Clause, even though the child did not testify at the trial.
Darius Clark, known as “Dee,” lived with his girlfriend T.T. and her two children L.P., a then three year old boy, and A.T., a then 18 month old girl. Only L.P. is involved in this case.
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 had happened and who had done this to him, L.P. said something like “Dee Dee.” When Jones asked if Dee were big or little, L.P. said Dee was big. Further examination of L.P. revealed more injuries. Whitley called the authorities to report the suspected abuse.
When Clark later arrived at the school, he denied any responsibility for what had happened, and quickly 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. L.P. did not testify at Clark’s trial, because the trial court found him incompetent to do so under Ohio Evid.R. 601(A), which 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.
Clark moved to exclude L.P.’s out-of-court statements to his teachers on the grounds they violated his rights under the Confrontation Clause. The trial court denied the motion. The trial court allowed the state to introduce L.P.’s statements to his teachers pursuant to Ohio Evid. R. 807, a special hearsay exception for child statements in abuse cases. The rule allows the admission of reliable hearsay by child abuse victims.
The jury found Clark guilty of all but one charge. He was sentenced to twenty-eight years in prison.
On appeal, Ohio’s Eighth District Court of Appeals reversed, finding the introduction of L.P.’s statements to his teachers violated the Confrontation Clause. In a 4-3 decision, in State v. Clark, 2013-Ohio-4731, the Supreme Court of Ohio agreed, holding 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. Ohio’s Chief Justice Maureen O’Connor wrote the dissent, finding the statements nontestimonial, and thus admissible.
Supreme Court of Ohio Decision
The Supreme Court of Ohio majority held two things, (these holdings form the syllabus of the case), both of which were declared incorrect by the U.S. Supreme Court decision: first, that when questioning a child about suspected abuse, pursuant to a teacher’s statutory duty to report abuse, a teacher acts in a dual capacity as both an instructor and as an agent of law enforcement. Second, the statements made in this case were testimonial because they were made to the teachers for the primary purpose of helping gather evidence to identify and prosecute the offender, and were made in the absence of any ongoing emergency.
Analysis of U.S. Supreme Court Decision
Part I is the Case Background
Part II A
In this part of the opinion, the Court reviews the basic Confrontation Clause jurisprudence from Crawford v. Washington, 541 U.S. 36 (2004) to the present. In Crawford, the 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.
That future development came in a pair of domestic violence cases decided the same day, Davis v. Washington, 547 U.S. 813 (2006) and Hammon v. Indiana, 547 U.S. 813 (2006). In those cases the Court formulated 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.
The Court again addressed the primary purpose test in 2011 in Michigan v. Bryant, 562 U.S. 344 (2011). The Court greatly expanded the concept of an ongoing emergency and held that context very much matters. The primary purpose inquiry must include all relevant circumstances, of which an ongoing emergency is just one factor. A very important additional factor is the formality of the interrogation. A formal station house interrogation is more likely to produce testimonial statements, while less formal questioning is less likely to do so. The touchstone here is whether the primary purpose of the questioning was to “create an out-of-court substitute for trial testimony” (Bryant, at 358).
All of the statements in these precedential cases were statements to law enforcement. Justice Alito notes that the Court had not yet addressed the question of whether similar kinds of statements made to non-law enforcement personnel raised similar Confrontation Clause concerns. It addresses that question in this case.
There is one other very striking finding in this part of the opinion, which Justice Scalia later pounces on. Justice Alioto wrote, quoting from Bryant, “[A]nd in determining whether a statement is testimonial, ‘standard rules of hearsay designed to identify some statements as reliable, will be relevant.’” Does this sound like Ohio v. Roberts sneaking in the back door, I wrote in my margin notes when reading this.
So, then, the Court concludes this section with two important holdings. One, if the primary purpose is not testimonial, the “admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” And two, the primary purpose test is a necessary, but not always sufficient basis on which to preclude admission of those out-of-court statements. So the question becomes, if the primary purpose test isn’t always sufficient, what else is needed?
Part II B
The Court here tackles the question it has previously reserved—how to characterize statements made to persons other than law enforcement, in this case teachers. The Court refused to write a bright line rule that no statements made to non-law enforcement personnel raise Confrontation Clause concerns. But the Court found that they are less likely to be testimonial than statements made to law enforcement personnel.
The holding here is that, in considering all relevant circumstances (remember, Bryant requires that) L.P.’s statements to his teachers were not made for the primary purpose of prosecuting Clark; thus their introduction at trial did not violate the Confrontation Clause.
The Court found that L.P.’s statements did occur in the context of an ongoing emergency—clearly rejecting the Supreme Court of Ohio finding that they did not. The Court noted that as in Bryant, the emergency here was ongoing and the circumstances unclear. And the Court adopted one of Ohio Chief Justice Maureen O’Connor’s main dissent points—that the main objective of the teachers’ questioning was to protect L.P., not to collect evidence to prosecute Clark.
Once again, the Court emphasized that context matters. The questioning here occurred in an informal setting—a preschool lunchroom and classroom. This was nothing like a formal station house interrogation. That tilts toward non-testimonial, as does the fact that the statements were made to teachers. It is not the job of teachers (notwithstanding the mandatory abuse reporting requirements) to dig up evidence to prosecute people.
Another key finding incorporated the concerns expressed by many of the justices during the oral argument of this case about how in the world a little kid forms a primary purpose. After all, that test is supposed to be applied from the point of view of the declarant. Here is what the Court said about that:
“L.P.’s age fortifies our conclusion that the statements in question were not testimonial. Statements by very young children will rarely, if ever, implicate the Confrontation Clause.”
And, Justice Alito also threw in a little originalism, noting that historically, “there is strong evidence that statements made in circumstances similar to those facing L.P. and his teachers were admissible at common law.” And he provides that evidence.
This part of the opinion refutes the arguments made by Clark. The Court rejected Clark’s argument (accepted by the Supreme Court of Ohio majority) that the mandatory reporting obligation made teachers law-enforcement agents. The Court held that mandatory reporting duties do not “convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.” Teachers are nurturing, and their main concern was to protect L.P. and get him out of harm’s way. The fact that the questioning ultimately led to Clark’s prosecution was both irrelevant and inevitable.
Clark was also wrong to argue that the admission of the statements was fundamentally unfair because Ohio law does not allow incompetent children to testify. That problem is handled by Ohio’s special hearsay exception for child abuse statements. Finally, the Court rejected Clark’s position that the primary purpose of the questioning should be evaluated from the perspective of whether the jury would view the statements as the equivalent of in-court testimony.
L.P.’s statements to his teachers were not testimonial. Judgment reversed and case remanded.
Justice Scalia’s Separate Concurrence in Judgment Only
Scalia agrees that because of L.P.’s age his primary purpose was not to “invoke the coercive machinery of the State against Clark.” He also agreed that L.P.’s conversation with his teacher lacked the solemnity necessary for testimonial statements, and that their primary purpose was to protect L.P. from harm.
Scalia said that he wrote separately “to protect the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington.” He criticizes Justice Alito for his hostility to Crawford, and for an attempt to sneak back to Ohio v. Roberts.
Justice Ginsburg joined this separate concurrence in judgment only.
Justice Thomas’ Separate Concurrence in Judgment Only
Justice Thomas agrees that mandatory reporters of abuse do not become agents of law enforcement here, that statements made to private persons or by very young children will rarely implicate the Confrontation Clause and that the admission of the statements in this case did not.
As he has said before, though, he would find the proper touchstone to be whether statements made—be it to private persons or law enforcement-have sufficient indicia of solemnity to qualify as testimonial. These clearly did not.
This case is certainly a big win for Ohio’s Chief Justice Maureen O’Connor. She wrote a blistering dissent in Ohio’s 4-3 decision in State v. Clark, emphasizing the primary role of teachers as protectors, not law-enforcement agent prosecutors. She urged the state to take this case up to the U.S. Supreme Court in her dissent, and she has surely been vindicated.
Here’s how her dissent began:
“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.” She emphatically disagreed with the majority that teachers become agents of law enforcement merely because they are required to report child abuse. She also questioned the use of the primary purpose test when the questioner is not a member of law enforcement, suggesting the objective witness test instead. Although she didn’t get that from the U.S. Supreme Court, she got the equivalent or better, particularly with the finding that the statements of very young children will rarely implicate the Confrontation Clause. That should help with some of Ohio’s messy jurisprudence on child witnesses. Most of all, though, the U.S. Supreme Court clearly saw the teachers as protectors in an ongoing emergency here, which was one of her overarching points.