In Ohio v. Clark, a 6-member majority of the United States Supreme Court agreed that introduction of incriminating statements made to a school teacher by a three-year-old boy indicating that a specific person was responsible for abusing him was admissible and not a violation of the Confrontation Clause. Three other members concurred in the judgment, but wrote separately to express their frustration at the majority’s attempt to undermine the Court’s recent decision in Crawford v. Washington and its strong embrace of the Constitutional right to confront one’s accuser.
In Crawford, the Court held that the Confrontation Clause generally prohibits the introduction of “testimonial” statements by a non-testifying witness, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross examination. By “testimonial” the Crawford court meant a statement whose “primary purpose” is to create an out-of-court substitute for trial testimony. In this case, the Court further described what it meant by “testimonial” statements.
The background behind the decision was as follows. The preschool teacher of L.P., a three-year old Ohioan (unnamed as is standard practice for a child actor) noticed one day that the boy’s left eye appeared bloodshot. Initially, the boy stated that he fell, but subsequently admitted that “Dee, Dee” did it. The teacher asked whether Dee was big or little, and the boy said “big.” The teacher then brought the student to her supervisor, who lifted the boy’s shirt and saw further injuries. The teacher proceeded to call the hotline for suspected child abuse cases. Clark later took the child home after denying responsibility. The next day, a social worker found the children and took them to a hospital where a doctor found further evidence of child abuse, including a black eye, belt marks, and bruising. L.P.’s sister had two black eyes, a swollen hand, a large burn on her cheek, and two pigtails had been ripped out at the root of her hair. Clark was eventually indicted for felonious assault, endangering children, and two counts of domestic violence. At trial, the prosecution introduced the boy’s statements to his teacher as evidence of guilt, but the boy did not testify because, pursuant to Ohio law, children under ten are incompetent to testify. The trial court admitted the statements under a corollary rule allowing admissions of reliable hearsay by child abuse victims. Clark was found guilty.
Justice Alito, a former U.S. Attorney and strong supporter of prosecutors, writing for the 6-member majority, stated that considering all the relevant circumstances, the statements made by L.P. were not made with the primary purpose of creating evidence for Clark’s prosecution, but rather occurred during an on-going emergency involving suspected child abuse. The child was unaware that his statements would be used to arrest or punish his abuser, and the child never hinted that this was his purpose.
Further, Justice Alito stated that a child’s out-of-court statements will almost never be subject to the Confrontation Clause. Generally, statements made out-of-court, but not to those charged with uncovering and prosecuting criminal behavior, are significantly less likely to be testimonial, and thus banned by the Confrontation Clause, than those given to law enforcement. However, the Court declined to adopt a categorical rule that statements to those not in law enforcement are outside the scope of the Confrontation Clause.
In his defense, Clark argued that the fact that the teacher was a mandatory reporter obligated to report the child’s statement turned her into a law enforcement-type officer. The majority disagreed. Furthermore, Justice Alito explained that the test is not how the jury would view the statement, but rather how the out-of-court declarant intended it–viz. its “primary purpose.”
Interestingly, Court conservative Justice Scalia and liberal darling Justice Ginsburg concurred together to assert that much of the majority opinion relating to Crawford must be read as dicta, and not any attempt by the court to return to a pre-Crawford era, which Justice Scalia described as a “halcyon era for prosecutors.”
As prominent defense attorney Jules Epstein points out, Rule of Evidence 806 – the right to impeach a hearsay declarant the same as if the declarant testified at trial – remains fair game for exposure, and potential impeachment to the jury. Factors such as the age of the declarant and the reliability of the statement may be relevant to the “testimonial” issue. Finally, the Court did not address the possibility for multiple “primary purposes” or at what age or ability a child may learn that his statements will have legal consequences subjecting his statement to the Confrontation Clause.
The outcome in this case may have never been in question, but those interested should always be worried about the next case coming after. In circumstances such as that in Ohio v. Clark, the jury will never be able to see the speaker and use its collective judgment to assess credibility and veracity. Similarly, the incriminating statements will be elicited by those untrained (here, the preschool teacher) to do so, through leading questions of a boy who in the court’s eye cannot be trusted. This decision, although joined by all nine Justices, has the potential to undermine the strong, vital right established in Crawford, in a return to the “halcyon” days prior to that decision. Defense attorneys ought to strategize their defense theories and investigation fully cognizant of this possibility.