The Supreme Court will hear oral arguments in Ohio v. Clark on March 2, 2015.
Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and whether a child’s out-of-court statements to a teacher in response to a teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause
On March 16, 2010, T.T. left for a Washington, D.C. trip and left her two children, L.P. and A.T. with her live in boyfriend, Darius Clark. L.P. is a three-year-old boy and A.T. is a two-year-old girl. The next day, Mr. Clark dropped off L.P. at William Patrick Day Head Start Center. While at school, Ramona Whitley, one of L.P.’s daycare teachers, noticed that L.P.’s left eye appeared bloodshot or bloodstained. She also noticed that L.P. had red marks and welts on his face. When asked what happened, L.P. said that he fell and hurt his face. Ms. Whitley also noticed that L.P. was quieter than usual and did not want to eat. Ms. Whitley told Debra Jones, the lead teacher, about L.P.’s injuries. Ms. Jones also asked L.P. what had happened and L.P. said “Dee Dee.” Dee is Darius Clark’s nickname. Ms. Jones took L.P. to her supervisor and the supervisor raised L.P.’s shirt and noticed more red marks on his body. The supervisor advised that the person who first noticed L.P.’s injuries should call Cuyahoga County Department of Children and Family Services (“CCDCFS”). As such, Ms. Whitley called 696-KIDS and reported suspected child abuse.
Howard Little, a CCDCFS social worker, came to William Patrick Day Head Start Center and asked L.P. about his injuries. L.P. again implicated Darius Clark. A little while after the social worker arrived, Darius Clark arrived to the school. Darius Clark denied responsibility for the injuries and took L.P. home. That evening, Mr. Little went to L.P.’s known residence and left material for the family to contact him. The following day, a different CCDCFS social worker, Sarah Bolog, was able to find L.P. and A.T. at Darius Clark’s mother’s house. This social worker confirmed L.P.’s injuries and also noticed serious injuries on A.T. A.T. had two black eyes and a large burn on her cheek. L.P., when asked, again implicated Darius Clark. The social worker called 911 and both L.P. and A.T. were taken to the hospital.
At the hospital, a physician determined that L.P. had numerous bruises that were in various stages of development. He also had abrasions that were consistent with having been struck by a linear object. A.T. had bruises, burn marks, a swollen hand, and a pattern of sores on her hairline. The physician suspected child abuse and estimated that the injuries occurred between February 28, 2010 and March 18, 2010. L.P. and A.T. were placed in their great aunt’s care. L.P. told his great aunt and his grandmother “Dee did it.”
At trial, Darius Clark moved to preclude testimony about L.P.’s out-of-court statements identifying “Dee” citing to the Sixth Amendment of the United States Constitution. He stated that L.P.’s statements were testimonial and he could not cross-examine L.P. because L.P. was deemed not competent to testify. The trial court denied Darius Clark’s motion and stated that the totality of the circumstances guaranteed that L.P.’s statements were trustworthy and that they were non-testimonial. As such, testimony from the social workers, L.P.’s teachers, and L.P’s great aunt and grandmother were allowed. The jury found Darius Clark guilty and he was sentenced to twenty-eight years imprisonment. The Ohio Court of Appeals reversed the conviction stating that L.P.’s statements to the social workers were testimonial because they were “[p] art of the preliminary investigation to aid law enforcement” and were not made during a medical emergency or needed for a medical diagnosis or treatment. The court also stated that L.P.’s statements to his teachers were testimonial because Ms. Whitley and Ms. Jones’ questions were to report potential child abuse to law enforcement. Finally, the Ohio Court of Appeals found L.P.’s statements to his grandmother and great aunt inadmissible because they lacked the guarantee of trustworthiness.
The Ohio Supreme Court affirmed that L.P.’s statements to his teachers were testimonial. It reasoned that L.P.’s teachers were police agents and as such applied the primary-purpose test to determine if L.P.’s statements were testimonial. The primary-purpose test dictates that a statement is testimonial if its purpose is “to establish or prove past events potentially relevant to later criminal prosecution.”
The State of Ohio would like the Ohio Supreme Court’s decision to be reversed because they do not believe the Confrontation Clause of the Sixth Amendment applies. They purport that the Confrontation Clause does not apply to individuals who are talking to their friends, coworkers, or teachers. They also state that statements made to private parties lie outside the scope of the Confrontation Clause. Additionally, the State of Ohio argues that incompetent witnesses, such as young children, could not be witness testimony, assuming that the Confrontation Clause’s testimonial rules track the state’s competency rules.
The State of Ohio also argues that the Ohio Supreme Court made a mistake in treating teachers’ duty to report child abuse as them being police agents. They analogized that just because people report crimes that doesn’t make them a police agent, is the same as when teachers report child abuse. They also made a distinction stating that the statute merely requires the teachers to report the child abuse and that it does not require them to investigate it. Furthermore, the State of Ohio compared the Confrontation Clause to the Fourth, Fifth, and Sixth Amendments, stating that reporters in each scenario involving the relevant Amendment did not become police agents.
In regards to whether L.P.’s statements were testimonial in light of the circumstances, the State of Ohio stated that it is not testimonial based on the fact that the teachers asked L.P. questions to protect him and secure the classroom, that L.P. was a young boy, and he was being questioned in a classroom full of students. As such, his statements were not made to create evidence.
Darius Clark would like the United States Supreme Court to affirm the opinion of the Ohio Supreme Court. Darius Clark argues that L.P.’s statements are testimonial because their purpose is to “establish or prove past events potentially relevant to later criminal prosecution.” Here, L.P.’s statements would be a substitution for live testimony and therefore the Confrontation Clause is invoked. Furthermore, the primary purpose test is satisfied because the teachers immediately suspected child abuse and reported it so that social workers and police officers could be involved. L.P.’s response that “Dee did it” is a substitute for trial testimony.
Additionally, Darius Clark argues that L.P.’s statements violate the Confrontation Clause because they do not fall within any of the hearsay exceptions permissible by the evidence rules of Ohio. The responses to L.P.’s teachers’ questions were not probing enough to determine if it was in fact Darius Clark who committed the injuries or if it was his mother, who also had a history of abusing the children.
Finally, Darius Clark argues that if the State were allowed to use L.P’s statements, it would undermine the adversarial system. It would not allow Darius Clark to cross-examine L.P., a safeguard built into the adversarial system to help determine the truth.
How the Court decides this case will dictate how future child abuse cases will be litigated. It will also affect future Confrontation Clause issues. If the Court rules that L.P.’s statements to his teachers, family, and the social workers is testimonial and subject to the Confrontation Clause, then in this case and other future cases may be hindered when trying to protect children from testifying about abuse they are subjected. While there are protections already in place to allow the child to testify without having to directly face their abuser in court, if they are deemed incompetent, like in this case, those statements will forever be barred from coming out in court and can significantly harm the prosecution’s case where the children are very young or are deemed incompetent. However, if the Court rules otherwise, that L.P.’s statements were not testimonial, and therefore, allowed to come in at trial, then it seems like a new hearsay exception, which already has been allowed in certain states, may become applicable federally.
By Cassandre Plantin
Photo by AyAres via Flickr Commons