On June 18th the U.S. Supreme Court decided Ohio v. Clark, 576 U.S. __, 135 S. Ct. 2173 (2015), holding that a child abuse victim’s statements to his preschool teachers were non-testimonial under the Crawford confrontation clause analysis. As the first Crawford case addressing statements by a child victim, Clark is an important decision for child abuse prosecutions. Also, because it’s the Court’s first case assessing the testimonial nature of statements made to persons other than the police or their agents, it has broader significance for the Crawford analysis.
The defendant in Clark, who went by the nickname “Dee,” was caring for three-year-old L.P. and his 18-month-old sister A.T. The defendant was the children’s mother’s boyfriend and her pimp. The defendant was taking care of the children after having sent their mother out of town on prostitution work. After the defendant left L.P. at preschool, L.P.’s teacher, Ramona Whitley, observed that L.P.’s left eye was bloodshot. When Whitley asked him “[w]hat happened,” L.P. initially said nothing. Eventually, however, he told Whitley that he “fell.” Once in brighter lights, Whitley noticed “[r]ed marks, like whips of some sort,” on L.P.’s face. She notified the lead teacher, Debra Jones, who asked L.P., “Who did this? What happened to you?” L.P. “said something like, Dee, Dee.” Jones asked L.P. whether Dee is “big or little;” L.P. responded that “Dee is big.” Jones then brought L.P. to her supervisor, who lifted the boy’s shirt, revealing more injuries. Whitley called a child abuse hotline to alert authorities about suspected abuse.
The defendant was charged with abusing both L.P. and A.T. At trial L.P. did not testify, having been found incompetent to do so. Over the defendant’s confrontation clause objection, the State introduced L.P.’s statements to his teachers as evidence of guilt. The defendant was convicted and appealed. The Ohio Supreme Court held that L.P.’s statements were testimonial, reasoning that the primary purpose of the teachers’ questioning was not to deal with an emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution. Because Ohio has a mandatory reporting law requiring preschool teachers and others to report suspected child abuse to authorities, the Ohio court concluded that the teachers acted as agents of the State.
The U.S. Supreme Court granted review and reversed. It held:
In this case . . . [w]e are . . . presented with the question we have repeatedly reserved: whether statements to persons other than law enforcement officers are subject to the Confrontation Clause. Because at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, we decline to adopt a categorical rule excluding them from the Sixth Amendment’s reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers. And considering all the relevant circumstances here, L.P.’s statements clearly were not made with the primary purpose of creating evidence for [the defendant’s] prosecution. Thus, their introduction at trial did not violate the Confrontation Clause.
135 S. Ct. at 2181. The Court reasoned that “L.P.’s statements occurred in the context of an ongoing emergency involving suspected child abuse.” Id. The Court continued, concluding that “[t]here is no indication that the primary purpose of the conversation was to gather evidence for [the defendant’s] prosecution. On the contrary, it is clear that the first objective was to protect L.P.” Id. Additionally, the conversation was “informal and spontaneous.” Id. The Court found that L.P.’s age fortified its conclusion that the statements were non-testimonial, stating: “Statements by very young children will rarely, if ever, implicate the Confrontation Clause.” Id. at 2182. The Court noted that as a historical matter, there is strong evidence that similar statements were admissible at common law. It continued: “although we decline to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, the fact that L.P. was speaking to his teachers remains highly relevant.” Id. It explained: “Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.” Id. The Court rejected the defendant’s argument that Ohio’s mandatory reporting statutes made L.P.’s statements testimonial, concluding: “mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.” Id. at 2183.
So what are the main take away points from Clark for child abuse prosecutions and Crawford issues more generally?
- The Davis primary purpose test still reigns. at 2181. Under that test, “‘[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’” Id. at 2179-80 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).
- Although in dicta, the Court reaffirmed the dying declaration and forfeiture by wrongdoing exceptions to the Crawford rule. Id. at 2180.
- While it declined to adopt a categorical rule excluding statements made to persons other than law enforcement officers or their agents from the scope of the Sixth Amendment, the Court stated that “such statements are much less likely to be testimonial than statements to law enforcement officers.” at 2181.
- Though again not adopting a categorical rule, the Court made clear that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” at 2182.
- And finally, mandatory reporting statutes alone do not make a child’s statements to a private person testimonial. at 2183.
It’s also worth noting that six Justices joined the Court’s opinion. Scalia, joined by Ginsburg, concurred in the judgment but wrote separately “to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford.” Id. at 2184 (Scalia, J., concurring). Thomas also wrote separately concurring in the judgment and arguing, as he has before, for a confrontation analysis that focuses on the degree of solemnity associated with the statement.