U.S. Supreme Court rules that a teacher’s in-court testimony regarding out-of-court statements made by a minor student about suspected child abuse did not violate Sixth Amendment’s Confrontation Clause
Ohio v. Clark, No. 13–1352 (U.S. Jun. 18, 2015)
Abstract: The U.S. Supreme Court, in a unanimous judgment, has ruled that a teacher’s in court testimony regarding out-of-court statements made by a minor student regarding alleged physical abuse does not violate the Sixth Amendment’s Confrontation Clause. The Court indicated that a statement qualifies as testimonial if the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.”
The Court determined that statements to individuals who are not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than those given to law enforcement officers. It stated that “the test is whether a statement was given with the primary purpose of creating an out-of-court substitute for trial testimony.”
Justice Alito, joined by Chief Justice Roberts and Justices Kennedy, Breyer, Sotomayor, and Kagan, delivered the Court’s opinion. Justice Scalia, joined by Justice Ginsburg, filed an opinion concurring in judgment. Justice Thomas filed an opinion concurring in the judgment.
Facts/Issues: L.P., a minor who was three years old, was left by his mother in the care of her boyfriend, Darius Clark. Teachers subsequently discovered red marks on L.P. and a bloodshot eye, both of which appeared to be signs of abuse. The teachers questioned the L.P. and he identified Clark as his abuser. During a subsequent visit to the kids, which took place at Clark’s mother’s home, a social worker noticed that L.P. and his sister, A.T., both had injuries and took them to a hospital. A physician discovered additional injuries suggesting child abuse.
A grand jury indicted Clark on five counts of felonious assault (four related to A. T. and one related to L. P.), two counts of endangering children (one for each child), and two counts of domestic violence (one for each child). At trial, the State introduced L. P.’s statements to his teachers as evidence of Clark’s guilt, but L. P. did not testify.
Under Ohio law, children younger than 10 years old are incompetent to testify if they “appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly.” Ohio Rule Evid. 601(A) (Lexis 2010). After conducting a hearing, the trial court concluded that L. P. was not competent to testify.
Clark moved to exclude testimony about L. P.’s out-of-court statements under the Confrontation Clause. The trial court denied the motion, ruling that L. P.’s responses were not testimonial statements covered by the Sixth Amendment. The jury found Clark guilty on all counts except for one assault count related to A. T.
An Ohio appellate court reversed on the ground that the introduction of L. P.’s out-of-court statements violated the Confrontation Clause. The Ohio Supreme Court affirmed. It held that, “under this court’s Confrontation Clause decisions, L. P.’s statements qualified as testimonial because the primary purpose of the teachers’ questioning was not to deal with an existing emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution.”
Ruling/Rationale: The United States Supreme Court, with all the justices agreeing in the judgment, reversed the Ohio Supreme Court’s decision. Justice Alito issued the Court’s opinion. Justice Scalia, joined by Justice Ginsburg filed an opinion concurring in the judgment. Justice Thomas also filed an opinion concurring in the judgment. At issue was whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing the child’s out-of-court statements to his teachers when the child was not available to be cross-examined.
Justice Alito first pointed out U.S. Supreme Court precedent established that testimonial statements made to law enforcement officers implicate the Confrontation Clause, but the question of whether similar statements to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause had been reserved. Reviewing the Court’s Confrontation Clause jurisprudence, he found that the Confrontation Clause does not bar every statement that satisfies the “primary purpose” test. Alito concluded 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.”
Justice Alito announced the Court would not adopt a categorical rule excluding such statements from the Sixth Amendment’s reach “[b]ecause at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, we decline to.” However, he emphasized “such statements are much less likely to be testimonial than statements to law enforcement officers.” As a result, Alito held: “L. P.’s statements clearly were not made with the primary purpose of creating evidence for Clark’s prosecution. Thus, their introduction at trial did not violate the Confrontation Clause.”
Justice Alito, based on the relevant facts, found there was “no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecution.” Instead, he determined that the teachers’ “first objective was to protect L. P.” He also pointed out that L. P.’s age supported the “conclusion” that the statements in question were not testimonial, noting that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” In addition, he bolstered his reasoning by stating that “there is strong evidence that statements made in circumstances similar to those facing L. P. and his teachers were admissible at common law.”
Lastly, after reiterating that the Court was declining to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, Justice Alito stressed “the fact that L. P. was speaking to his teachers remains highly relevant.” He posited:
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. See, e.g., Giles, 554 U. S., at 376. It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police.
Alito rejected Clark’s argument that the state’s mandatory reporting obligations made teachers the functional equivalent of law enforcement when dealing with suspected child abuse. He found, instead, that “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.”
Alito also found Clark’s assertion that admitting L. P.’s statements would be fundamentally unfair given that Ohio law does not allow incompetent children to testify was unavailing. He stated, “The fact that the witness is unavailable because of a different rule of evidence does not change our analysis.” Finally, Alito rejected Clark ‘s argument that because the “jury treated L. P.’s accusation as the functional equivalent of testimony,” it should be barred. He responded that courts “do not determine whether a statement is testimonial by examining whether a jury would view the statement as the equivalent of in-court testimony.”
Justice Scalia’s concurrence took the Alito majority to task over what he perceived as it “shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington, 541 U. S. 36 (2004).” He contended that the primary purpose test is the sole means of determining if an individual is acting as a witness. Scalia said, “The Confrontation Clause categorically entitles a defendant to be confronted with the witnesses against him; and the primary-purpose test sorts out, among the many people who interact with the police informally, who is acting as a witness and who is not.”
According to Scalia, the majority opinion’s assertion “that future defendants, and future Confrontation Clause majorities, must provide ‘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,” got “the burden precisely backwards.”
Justice Thomas refused to join with the majority’s opinion because the majority failed to “offer clear guidance on the subject, declaring only that ‘the primary purpose test is a necessary, but not always sufficient, condition’ for a statement to fall within the scope of the Confrontation Clause. ” He wrote his own concurring opinion, but unlike Scalia Thomas found the primary purpose test “an exercise in fiction . . . disconnected from history for statements made to private persons as it is for statements made to agents of law enforcement.”
Thomas stated that instead of that test he “would use the same test for statements to private persons that I have employed for statements to agents of law enforcement, assessing whether those statements bear sufficient indicia of solemnity to qualify as testimonial.” He “identified several categories of extrajudicial statements that bear sufficient indicia of solemnity to fall within the original meaning of testimony.” For example, statements “contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.”
That several of these factors seem inherently inapplicable to statements made to private persons does not mean that the test is unsuitable for analyzing such statements. All it means is that statements made to private persons rarely resemble the historical abuses that the common-law right to confrontation developed to address, and it is those practices that the test is designed to identify.
He determined that “L. P.’s statements do not bear sufficient indicia of solemnity to qualify as testimonial,” because “[t]hey were neither contained in formalized testimonial materials nor obtained as the result of a formalized dialogue initiated by police.”
Ohio v. Clark, No. 13–1352 (U.S. Jun. 18, 2015)
[Editor’s Note: NSBA, who along with the Ohio School Boards Association filed an amicus brief in support of Ohio, issued a press release applauding the U.S. Supreme Court’s decision. NSBA Executive Director Thomas J. Gentzel said, “The Court properly recognized that school teachers who ask children questions about suspected child abuse are not acting as law enforcement officers. We are pleased with the Court’s decision recognizing that school officials who question students in compliance with reporting requirements are acting to keep children safe.” According to NSBA General Counsel and Associate Executive Director, Legal Advocacy, Francisco Negrón, “The Court’s decision rightfully takes into account the special context of school personnel who question students out of concern for the child’s welfare as much as out of the mandatory duty to report child abuse.” Negrón added, “The Court’s decision is a win for NSBA and our co-signatories, but more importantly, a win for the many children protected from further abuse when a teacher asks them what’s wrong,”
In March 2015, Legal Clips summarized an article in Cleveland.com reporting that the U.S. Supreme Court had heard oral argument in Ohio v. Clark. Cuyahoga County Assistant Prosecutor Matthew Meyer and Assistant U.S. Solicitor General Ilana Eisenstein told the the Justices that the lower court rulings misinterpreted the Constitution by “viewing teachers as police,” as Eisenstein put it. When Justice Ginsberg asked Meyer why statements by a child deemed too unreliable to testify in court should be deemed reliable enough to admit as court evidence if they’re from teachers, Meyer said it would be a mistake to decide that anything such a small child says is unreliable. “It’s a choice between hearsay and nothing when dealing with a three-year-old,” Meyer replied. Meyer argued that teachers who are concerned about their charges’ well-being would ask them about noticeable injuries even if they weren’t required to report the abuse to authorities. “Ohio’s teachers are horrified to learn that the Ohio Supreme Court views them as cops when talking to students,” he told the Justices.
In November 2014, Legal Clips published a Sua Sponte item reporting that The National School Boards Association (NSBA) and the Ohio School Boards Association (OSBA) had joined the National Education Association (NEA) and the American Federation of Teachers (AFT) in an amicus brief in Clark v. Ohio, No. 13-1352, urging the U.S. Supreme Court to reverse the Ohio Supreme Court’s holding:
(1) that teachers are acting as agents of law enforcement when questioning a minor student regarding suspected child abuse pursuant to Ohio’s mandatory reporting law for purposes of the Sixth Amendment’s Confrontation Clause; and
(2) that out-of-court statements to a teacher in response to the teacher’s concern about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.]