And the hits keep coming for the Confrontation Clause....one of my favorite clauses of all the clauses.
Today’s United States Supreme Court decision in Ohio v. Clark is another of the now, all-too-common, blows to the Confrontation Clause. The Confrontation Clause isn’t mysterious – the name says it all – it is the right to confront one’s accuser. And it’s a right that resonates with just about everyone: should you be able to ask questions of the person that is making accusations about you (especially if there is no corroborating evidence that you’re the villian)? Most people answer with a resounding, “YES! Absolutely!”
Unfortunately, a case like Ohio v. Clark, is bad news for folks that like that right. The case doesn’t have the best facts. It’s easy to wonder if the outcome might have been different if the first line of the opinion wasn’t, “Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town…” but instead, “Darius Clark sent his girlfriend hundreds of miles away for a relaxing, spa retreat and agreed to care for her two young children while she was out of town because he was staying at home to work on his acceptance speech for the Nobel Peace Prize…”
Nevertheless, the facts are what they are, and Clark was his girlfriend’s pimp, sending her to D.C. on a different type of business trip. (He is the worst kind of man – an abuser of women and children.) The children, ages 3 years and 18 months, went to school the next day. A teacher noticed the three year-old (L.P.) had a bloodshot eye, and after initially saying he “fell” she noticed whip marks on the child’s chest and back. The child “seemed bewildered” and “said something like Dee, Dee” and that “Dee is big.” As required by law, the teacher called a child abuse hotline. Clark picked up the children from school and denied the abuse.
The next day a social worker took that the 18 month-old had two black eyes, a swollen hand, a pigtail ripped out of her head, and a burn on her cheek. (Remember, Clark is the worst kind of man.)
At trial, the child did not testify. Ohio Law deems children less than 10 incompetent to testify if they are “incapable of receiving just impression of the facts and transactions…” and L.P. was deemed incompetent. However, his statements to the teacher were admitted due to an Ohio rule of evidence allowing reliable hearsay of children. (Come ON, OHIO!) The Ohio Supreme Court held in a 4-3 decision that L.P.’s statements to his teacher were testimonial in nature, and his lack of testimony violated the Confrontation Clause. According to the state supreme court, L.P. was “doing precisely what a witness does on direct examination,” – making an in-court identification.
SCOTUS has already said statements given to law enforcement officers by victims of domestic abuse were testimonial. The deciding factor is whether those statements are giving for the purpose of meeting an ongoing emergency (non-testimonial) or whether they are “to establish and prove past events potentially relevant to later criminal prosecution.” See Hammon and Davis. Later in Michigan v. Davis, the factor of “the informality of the situation and the interrogation” was added as another factor in the testimonial v. non-testimonial debate. Was the primary purpose of the conversation to “create an out-of-court substitution for trial testimony?”
While the Court says it’s not making a categorical rule about whether statements to non-law enforcement members would be testimonial (thereby falling under the shield of the Sixth Amendment), it sure feels pretty categorical to me. And that's my problem with this case - I fear the floodgates of child-witness hearsay are about to be opened. Here, the question is where L.P.’s statements to his preschool teacher - someone required to report child abuse - are subject to the Confrontation Clause. “… Such statements are much less likely to be testimonial than statements to law enforcement officers.”
The USSC easily concluded that the primary purpose of L.P.’s statements was not to create evidence for Clark’s prosecution and that the statements were made in the ongoing emergency of suspected child abuse. The court cited the informal questioning by the teacher as “nothing like the formalized station-house questioning in Crawford.” The Court also says, “Statements by very young children will rarely, if ever, implicate the Confrontation Clause.” (I’d like to confront the USSC about how alarming I find this statement.) The Court concluded that three year-old L.P. didn’t intend for his statements to be used at trial – he didn’t think they would be used as testimony and a three year-old “would simply want the abuse to end, would want to protect other victims, and would have no discernible purpose at all.” (Clearly these justices know some very thoughtful, talented kids.)
Finally, Scalia writes a lovely concurrence, where he agrees with the holding, but adds:
I write separately, however, to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right to confrontation so recently rescued from the grave in Crawford v. Washington. For several decades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore “indicia of reliability.” Prosecutors, past and present, love that flabby test…
Crawford remains the law. But when else has the categorical overruling, the thorough repudiation, of an earlier line of cases been described as nothing more than “adopting a different approach,” as though Crawford is only a matter of twiddle-dum twiddle-dee preference, and the old pre-Crawford “approach” remains available?
AND ALL THE PEOPLE SAY AMEN. (Including Ginsburg.)
If you missed it above, here's the link.
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