Ohio v. Clark: Statements by Non-testifying Witnesses Made to Persons Other Than Law Enforcement Are Subject to the Confrontation Clause, But More Likely to be Admissible

On June 18, the U.S. Supreme Court, in Ohio v. Clark, ruled that statements by non-testifying witnesses to persons other than law enforcement officers may be covered by the Confrontation Clause, but are much less likely to be considered “testimonial” than are statements to law enforcement.
The Court allowed a non-testifying child’s statement to his teachers, identifying his abuser, to be admitted.

Facts

Darius Clark lived with his girlfriend and her three-year-old boy and 18-month-old daughter. 

One day, teachers at the boy’s school noticed that he had a bloodshot eye and red, whip-like marks on his body.  They asked him what happened.  He seemed “bewildered,” and “said something like, Dee, Dee.”  Teachers asked if Dee is “big or little.” He said “big.”

Teachers reported the matter to a child abuse hotline.

Clark was ultimately charged with various counts of abuse of both children.

At trial, the boy did not testify.  The trial court ruled the boy was incompetent to testify under an Ohio statute, which deemed children under 10 incompetent in certain circumstances. 

The State sought to introduce his out-of-court statements to his teachers.

Clark moved to exclude the boy’s statements on grounds that they were barred by the Sixth Amendment’s Confrontation Clause.

The trial court admitted the boy’s statements.  The court ruled the statements were not “testimonial.”  The court further ruled that under Ohio’s hearsay rules, the statements bore sufficient indicia of trustworthiness to be admitted.

Ohio’s appellate courts reversed.  They held that admission of the boy’s statements violated the Confrontation Clause because the statements were “testimonial” in that the primary purpose of the statements was not to deal with an existing emergency, but to gather evidence relevant to a subsequent prosecution.

Holding 

            The Supreme Court granted cert. to answer a question left open by Crawford and its progeny – 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,” the Court held.  “Nevertheless, such statements are much less likely to be testimonial than are statements to law enforcement officers.”

The Court reversed Ohio’s appellate courts, and held that admission of the boy’s statements to his teachers did not violate the Confrontation Clause.
Reviewing its rulings since Crawford, the Court stated that the Confrontation Clause requires analysis of the “primary purpose” of a statement, plus “all of the relevant circumstances” surrounding the statement in determining its purpose.

Statements are nontestimonial when made under circumstances objectively indicating that the primary purpose of the interrogation is to enable the questioner to meet an ongoing emergency, the Court said.

Statements 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 a criminal prosecution.

But the Court said that there may be “other circumstances, aside from an ongoing emergencies,” when a statement is not taken with the primary purpose of creating an out-of-court substitute for trial testimony.  Whether an emergency exists is only “one factor” to be used in deciding the “primary purpose” of an interrogation.

In Clark’s case, considering all relevant circumstances, the Court concluded that the boy’s statements were not made with the primary purpose of creating evidence for Clark’s prosecution.  Instead, the Court found that the statements were made in the context of an ongoing emergency involving suspected child abuse.

Because teachers needed to know whether it was safe to release the boy to Clark, they needed to determine who might be abusing the boy, the Court said.  The teachers’ immediate intent was to protect the boy, and their questions “were primarily aimed at identifying and ending the threat.” 

“There is no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecution,” the Court said.

The Court added that statements by “very young children will rarely, if ever, implicate the Confrontation Clause” because young children do not intend their statements to be a substitute for prosecutorial trial testimony.

Lastly, the Court held that, as a “historical matter,” statements such as the boy’s would have been admissible at common law.  “Neither Crawford nor any of the cases that it has produced has mounted evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding.”

Concurring Opinion May Be Useful to Defense Counsel 

            Justice Scalia – the author of Crawford — wrote a concurrence, joined by Justice Ginsburg.  Although he agreed with the outcome of the case, he disagreed with much of the analysis and accused the majority of seeking to overrule Crawford by stealth. 

            Scalia’s opinion may be useful to defense attorneys confronted with a prosecution argument that statements should now be admissible under the majority’s opinion. 

Scalia called some of the opinion “nothing but dicta.” 

Regarding the majority’s discussion that the boy’s statements would have been admitted at common law, Scalia wrote that “[t]his dictum gets the burden precisely backwards.” 

            “Defendants may invoke their Confrontation Clause rights once they have established that the state seeks to introduce testimonial evidence against them in a criminal case without unavailability of the witness and a previous opportunity to cross-examine,”  Scalia said.  “The burden is upon the prosecutor who seeks to introduce evidence over this bar to prove a long-established practice of introducing specific kinds of evidence, such as dying declarations … for which cross-examination was not typically necessary.”

            Although Scalia accused the majority of trying to “smuggle longstanding hearsay exceptions back into the Confrontation Clause – in other words, an attempt to return to Ohio v. Roberts,” he said the “good news is that there are evidently not the votes to return to that halcyon era for prosecutors.”

            Justice Thomas concurred separately.