Andrea L. Westerfeld
Ever since Crawford v. Washington reinvigorated the Confrontation Clause, practitioners have struggled with how to decide whether a statement is “testimonial” for purposes of invoking the Confrontation Clause. Out-of-court statements are often vital in domestic violence and child abuse cases, and often such statements are given to social workers, teachers, or counselors in settings far removed from the police station interrogation of Crawford. To what extent does the Confrontation Clause apply to these types of statements? The Supreme Court again waded into the discussion in Ohio v. Clark and delivered an opinion with many useful arguments for prosecutors.
Crawford and the Confrontation Clause
In 2004, Crawford v. Washington changed the landscape of criminal trials as it moved the focus of the admission of hearsay away from the reliability of the statement and instead considered whether the defendant had the opportunity to confront the declarant.1 Because the Confrontation Clause applies only to “witnesses against [the defendant],” Crawford held that any “testimonial” statements could not be introduced without giving the opportunity for the defense to cross-examine the declarant. But Crawford left one crucial point unclear: What exactly is a testimonial statement? The Court concluded that “at a minimum,” it is testimony at a preliminary hearing, before a grand jury, or at a prior trial and a declarant’s statements during police interrogation.2 But the decision left it to future courts to determine what else did or did not count as testimonial.
Further cases helped define testimonial for confrontation purposes. In Davis v. Washington, the Court laid out the “primary purposes” test.3 Statements are testimonial when made in the course of police interrogation whose primary purpose is to establish or prove past events relevant to future prosecution. But statements made for the primary purpose of responding to an ongoing emergency, even in the course of police interrogation, are not testimonial. In other words, an assault victim’s 911 call or initial statements to police at the scene are generally admissible, whereas further questioning after the victim is separated from the abuser is not.
Michigan v. Bryant also elaborated on the primary purposes test, confirming that it was not limited solely to ongoing emergencies.4 The Court recognized that there may be other circumstances in which a statement is not made with the primary purpose of creating a substitute for trial testimony. Instead, a court should consider “all of the relevant circumstances.” Thus, a dying declaration made by a shooting victim at the scene was not testimonial because it was aimed at helping the police find a shooter who was still at large.
Preschool teachers uncover child abuse
Under this backdrop, the Ohio courts considered the case of Ohio v. Clark.5 Three-year-old L.P. lived with his mother and her pimp, Darius Clark. When his mother went out of town to work as a prostitute, L.P. and his little sister A.T. stayed with Clark. One morning when L.P. went to preschool, his teachers noticed his left eye was bloodshot. One of them asked what happened, and L.P. said “nothing” and that he fell. When they reached the brighter lights of the classroom, the teacher noticed red, whip-like marks on L.P.’s face. She asked him, “Who did this? What happened to you?” L.P. replied that “Dee”—Clark—did it. The teacher called a child abuse hotline to report the conversation. Ultimately the children were removed from the home with more signs of abuse—including black eyes, belt marks, bruises, a burn, and 18-month-old A.T.’s pigtails ripped out at the root.
Clark was indicted for various charges of child abuse. L.P. was found incompetent to testify due to his age, but Ohio law permits the admission of “reliable hearsay” by child abuse victims, and L.P.’s statement to his teacher that “Dee” was responsible was admitted. Clark argued, at trial and on appeal, that L.P.’s statement to his teacher violated the Confrontation Clause because the teachers, as mandatory reporters of child abuse, were acting as agents of the State and acted for the purpose of gathering evidence. The Supreme Court of Ohio agreed and reversed Clark’s conviction.
The primary purpose test and beyond
The key issue when the Supreme Court granted cert of Clark was whether L.P.’s statements counted as “testimonial.” If not, the Confrontation Clause did not apply and state hearsay laws governed. The first issue was one that the Court had avoided in all previous Confrontation Clause cases: Must a statement be made to the police to be testimonial? Previous Confrontation Clause cases involved statements made to the police, so the Court had refused to address whether this was a necessary requirement. Here, L.P.’s statement was made to his preschool teachers, which, the State had argued, categorically removed it from the ambit of the Confrontation Clause, while Clark argued that because teachers were mandatory reporters of child abuse, they became state agents. The Supreme Court refused to adopt a categorical rule, noting that there may be some statements made to non-law enforcement that “could conceivably raise confrontation concerns.”6 But the Court did note that non-law enforcement statements are much less likely to be testimonial.
The main focus of the opinion was on the primary purposes test, and the Court ultimately concluded that L.P.’s statement to his teachers was not testimonial. First, as in Davis, the statement here was made during an ongoing emergency.7 The Court noted that the teachers’ concern was to “protect a vulnerable child who needed help.” They did not know who had hurt him, whether it was safe to release him to his guardian at the end of the day, and whether any other children were in danger. Their questions were aimed toward “identifying and ending the threat.”
The Court also pointed out that there was no indication either L.P. or his teachers intended to gather evidence for prosecution.8 The teachers did not tell L.P. that they were going to arrest or punish his abuser. The conversation was “informal and spontaneous.” Most importantly, the Court considered L.P.’s age. It noted that young children “have little understanding of prosecution,” and a young child in L.P.’s circumstances would be interested in ending the abuse or “have no discernible purpose at all.”9 In other words, a child might simply be answering his teacher’s questions without any intent to punish or prosecute anyone. The Court did not quite introduce a categorical rule that young children’s statements can never be testimonial, but it found that their statements “rarely, if ever, implicate the Confrontation Clause.”
In all, the Court found that L.P.’s statement to his teachers was not given for the primary purpose of prosecution. The child’s age, the informality of the questioning, the fact that questioners were not police officers, and the ongoing emergency were all factors.
On a final note, however, the Court observed that the primary purpose test is “a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause.”10 Even if the primary purpose of the statement was for future prosecution, the Confrontation Clause nonetheless did not bar the introduction of statements “that would have been admissible in a criminal case at the time of the founding.”11 The Court examined a variety of common law cases from the 17th and 18th Centuries to conclude that L.P.’s statements would have been admissible at the time the Constitution was written.12 In these cases, courts tolerated “flagrant hearsay” from child victims considered too young to testify because they could not appreciate the significance of their oath. Because the framers of the Constitution would have considered this type of hearsay admissible, the Confrontation Clause should not bar L.P.’s statement in this case.
Ohio v. Clark is an excellent ruling for the State and contains some very exciting language for future possibilities. It is important not to overstate the importance of this case: It does not give carte blanche to introduce hearsay statements despite the Confrontation Clause. But it does give prosecutors some very important arguments to make in many cases, and let’s hope that it allows the introduction of many more statements. A few key points to consider are:
• There is a great deal more leeway now in introducing child hearsay. The Court backed off of a blanket rule, but its broad language that statements of “very young children will rarely, if ever, implicate the Confrontation Clause” certainly gives a lot of breathing room.13 The main limitation is that it applies to “very young” children, not all children. Certainly teenagers and pre-teens in most cases can be found to understand that their statements could be used to arrest and prosecute an offender. Be prepared to argue the child’s specific age and level of understanding in a particular case.
• The Court also seemed to draw the definition of “ongoing emergency” fairly broadly.14 L.P. was in a classroom environment where he was not around his potential abuser, so the situation would seem to be more akin to Hammond v. Indiana, where a domestic violence victim had been separated from her abuser before giving a statement, and that separation was used to conclude the situation was no longer an ongoing emergency. Pay close attention to the factors the Court used here, including that the teachers needed to know if it was safe to release L.P. at the end of the day. The Court also pointed out that the circumstances were “not entirely clear,” so the perspective of the questioners at the time of questioning can make a difference—whether they already know anything about the situation or if there are many possibilities that might require immediate reaction.
• Circumstances matter. The Court repeatedly noted that lower courts must consider all “relevant circumstances” in considering the primary purpose of the statement.15 This is a good totality of the circumstances argument that will allow prosecutors to raise any other issues that might be relevant to the state of mind of either the declarant or the witness. Factors such as the declarant’s age or ability to understand, whether the questioner ever said that he was interested in arresting or prosecuting the offender, the informality of the situation, the spontaneity of the questioning, and the declarant’s stated purpose were all factors the Court considered here.
• Whether the testifying witness was a member of law enforcement is a relevant circumstance.16 Although the Court backed off the categorical rule, it did repeat several times that the fact that the teachers in Clark were not law enforcement officers contributed to the conclusion that L.P.’s statement was not testimonial. Statements made to non-law enforcement personnel are “significantly less likely” to be testimonial.17
• It does not matter that the questions did ultimately end up resulting in Clark’s prosecution, or even if the teachers could have foreseen that it would.18 Merely because the teachers knew they would be reporting any allegations of abuse to the state did not mean that was their primary purpose in asking the questions.
• The Court’s consideration of the admissibility of the statements at the time of the founding is interesting but should not be taken too far. Justice Scalia wrote a heated dissent,19 and courts are unlikely to consider admissibility at the time of founding as a stand-alone argument for avoiding the Confrontation Clause. But it can, as in this case, be useful as an additional argument.
In all, Ohio v. Clark is not a trump card, but it does add arrows to our quiver and should be very useful in cases involving children and statements to non-police witnesses.
1 Crawford v. Washington, 541 U.S. 36, 51-54 (2004).
2 Id. at 68.
3 Davis v. Washington, 547 U.S. 813, 822 (2006).
4 Michigan v. Bryant, 526 U.S. 344, 369.
5 Ohio v. Clark, 135 S.Ct. 2173 (2015).
6 Id. at 2181.
9 Id. at 2182.
10 Id. at 2180-81.
11 Id. at 2180.
12 Id. at 2182.
14 Id. at 2181.
15 Id. at 2180, 2182.
16 Id. at 2182.
17 Id. at 2181.
18 Id. at 2183.
19 Id. at 2183-85 (Scalia, J., concurring).