In early October the Supreme Court granted certiorari in an Ohio case, State v. Clark, 999 N.E.2d 592 (Ohio 2013), cert. granted __ U.S. __, 135 S. Ct. 43 (2014), that will require it to decide two questions. First, whether a person’s obligation to report suspected child abuse makes the person an agent of law enforcement for purposes of the confrontation clause. And second, whether 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. The case is important for a number of reasons. One is that like Ohio, North Carolina has a mandatory child abuse reporting statute. G.S. 7B-301. North Carolina’s statute is incredibly broad—it applies to everyone, not just teachers and doctors but also to family members, neighbors, and friends. Id. (“[a]ny person or institution”). Thus, an answer to the first question could have significant impact in North Carolina. The case also is important because Crawford has raised difficult questions in child abuse prosecutions about the testimonial nature of children’s statements to a host of people, including teachers, nurses, doctors, and social workers. Clark is the Court’s first Crawford case involving child abuse and many hope that its decision will provide answers to those questions.
The facts of the case are as follows. Darius Clark lived with his girlfriend, T.T., and her three-year-old son, L.P. After Clark dropped L.P. off at preschool one day, Ramona Whitley, one of L.P.’s teachers, saw that L.P.’s eye was bloodshot and bloodstained. She asked him, “What happened?” At first L.P. said nothing but then replied, “I fell.” Whitley asked L.P. how he fell and hurt his face and L.P. answered, “I fell down.” When Whitley looked at L.P. in a brighter room, she saw “[r]ed marks, like whips of some sort” on his face. Whitley brought the matter to the attention of the lead teacher, Debra Jones, who also asked L.P. who had hurt him. L.P. said something like “Dee, Dee.” Jones brought L.P. to her supervisor, who instructed that Whitley should report the suspected child abuse. Whitley complied and a social worker subsequently brought L.P. to the hospital, where a doctor determined that L.P. had bruising in various stages of development and abrasions consistent with having been struck by a linear object. Clark was charged with felonious assault, endangering children (L.P. and his sister, A.T.), and domestic violence.
At trial L.P. didn’t testify but his out-of-court identification statements at preschool were admitted. The jury found Clark guilty and he appealed, arguing that admission of L.P.’s out-of-court statements violated his confrontation rights. The Ohio Supreme Court agreed. The court noted that Ohio law imposes a mandatory “duty on all school officers and employees, including administrators and employees of child day-care centers, to report actual or suspected child abuse or neglect.” Against this statutory backdrop, the court turned to an inquiry as to whether L.P.’s statements to his teachers were testimonial. It concluded:
Applying the primary-purpose test to L.P.’s statement compels the conclusion that it was testimonial; no ongoing emergency existed, nor had L.P. complained about his injuries or needed emergency medical care. Rather, his teachers acted to fulfill their duties to report abuse. In fact, Whitley testified that “when the children come in, we’re supposed to always observe them, look for different things, what’s going on with them.” At a minimum, when questioning a child about suspected abuse in furtherance of a duty pursuant to [the Ohio statute], a teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes.
Here, the nature and focus of the questions asked indicate a purpose to ascertain facts of potential criminal activity and identify the person or persons responsible. Thus, because the teachers acted as agents of the state for law-enforcement purposes, the appropriate test to be applied is the primary-purpose test. [Under that test] the statements and actions of an interrogator as well as a declarant must be examined to determine the primary purpose of the declarant’s statements.
The record reveals that no emergency existed either at the time Whitley observed L.P. or when Jones questioned him. His teachers were “shocked” by his injuries and immediately suspected child abuse; they separated L.P. from other students and in a formal question-and-answer format, they sought facts concerning past criminal activity to identify the person responsible, eliciting statements that are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.
Thus, the primary purpose of that inquiry was not to extricate the child from an emergency situation or to obtain urgently needed medical attention, but rather was an information-seeking process to determine what had occurred in the past and who had perpetrated the abuse, establishing past events potentially relevant to later criminal prosecution. L.P.’s statements identifying Clark as responsible for his injuries are therefore testimonial and should have been excluded from evidence pursuant to the Confrontation Clause.
Clark, 999 N.E.2d at 600 (quotation and citations omitted).
Crawford has had significant impact on cases involving forensic science, domestic violence, and child abuse. Cases involving forensic science have been affected because of the difficulty of procuring the lab analysts’ testimony at trial. Domestic violence and child abuse cases have been affected because of the difficulty of procuring the victims’ testimony at trial. And of course, under Crawford if the prosecution wants to introduce testimonial statements by witnesses who don’t testify it trial, it must show unavailability and a prior opportunity to cross-examine. Clark is the first child abuse case to be considered by the Court post-Crawford. Although Clark deals with a child’s statements to teachers, many hope that it will provide guidance on how to analyze statements made by children to others, including nurses, doctors, and social workers.
I’ll post an update when the case is decided.