In October 2014, the Supreme Court agreed to hear an appeal of the Ohio Supreme Court’s decision, in State v. Clark, to overturn a man’s convictions for child abuse. The Court will have to decide two issues in the case: whether a mandatory reporter of child abuse acts as an agent of law enforcement for the purposes of the confrontation clause, and whether admission at trial of a child’s hearsay statements made to his teachers violates a defendant’s sixth amendment right to confront the witnesses against him.
The case arose after a preschool teacher noticed whip-like marks and other injuries on one of her three-year-old students at school. After asking the three-year old some questions about the marks, she got the other teachers involved, and they came to suspect that the child had been abused. Some of the child’s answers to the teachers implicated his mother’s boyfriend, Mr. Clark, as the abuser. One of the teachers, in accordance with her mandatory duty to report child abuse, called the child abuse hotline and child protective services investigated the matter. Mr. Clark was later arrested for child abuse and at trial, the court found the three-year old incompetent to testify, but permitted his teachers to testify to the child’s statements. Mr. Clark was convicted of four counts of felonious assault, two counts of child endangering resulting in serious physical harm, and two counts of domestic violence, and was sentenced to 28 years in prison.
Mr. Clark appealed his convictions, arguing that the admission of the child’s statements at trial violated his 6th Amendment right to confront the witnesses against him. The Ohio Court of Appeals agreed with him and overturned his convictions, stating that teachers serve dual functions as both instructors and agents of law enforcement when acting in accordance with a mandatory duty to report child abuse. The court also stressed that a child’s statements to his teachers about child abuse are testimonial when the statements were not made during an ongoing emergency and the primary purpose of the teachers’ questioning was to identify a suspect and gather information related to past conduct. The Ohio Supreme Court agreed with the appellate court’s decision and affirmed its ruling.
Case law seems to go both ways on the issue of whether teachers act as agents of law enforcement by virtue of their mandatory duties to report child abuse. On one hand, several courts have held that a mere duty to report child abuse does not transform a non-law enforcement professional into a law enforcement agent. For example, in State v. Krasky, the Minnesota Supreme Court held that a nurse was not acting as an agent of law enforcement simply because she was required to report child abuse. The court stressed that the purpose of the mandatory reporting requirement was to protect children who may be suffering abuse, not to aid in criminal prosecutions. In State v. Spencer in Montana and in United States v. Squire, a military decision, the courts also agreed that mandatory reporters are not agents of law enforcement, stating that there was no indication that the legislature intended the mandatory duty to report to have that effect.
However, some courts have found that mandatory reporters do act as agents of law enforcement when reporting child abuse. For example, in State v. Justus, the Missouri Supreme Court held that a social worker was acting as an agent of law enforcement when questioning an abuse victim because the social worker’s interview was done on behalf of law enforcement and family services had a duty to turn their information over to police officers. Moreover, in Michigan v. Bryant, the Supreme Court discussed the dual functions of police officers as both responders to emergencies and as criminal investigators. In Davis v. Washington, the Court seemed to expand this notion of dual functionality to 911 operators, stating that 911 operators also may serve as both responders to emergency and as agents of law enforcement when questioning 911 callers. Thus, it is possible that courts will place mandatory reporters of child abuse under the category of law enforcement agents as well.
However, not only will the Supreme Court have to consider whether the teachers were acting as agents of law enforcement; the Court will also have to consider whether Mr. Clark had a right to confront the child’s statements at all. In Crawford v. Washington, the Supreme Court held that a defendant only has a right to confront statements that are testimonial in nature. In Davis, the court attempted to distinguish testimonial statements from non-testimonial statements by creating the primary purpose test. Under the primary purpose test, a statement is non-testimonial if the primary purpose of the questioning is to meet an ongoing emergency, and a statement is testimonial if the primary purpose of the questioning is to prove past conduct or to gather evidence for a criminal trial.
If the Court finds that in State v. Clark, the teachers were responding to an ongoing emergency when reporting their suspicions of the three year old’s abuse, then the child’s statements will qualify as non-testimonial statements that Mr. Clark did not have a right to confront either in or out of court. However, case law appears to be somewhat stringent on what constitutes as an ongoing emergency; reserving that title for circumstances in which it is clear that the victim is under an imminent threat of future harm. In Davis, the Supreme Court held that a woman’s statements to a 911 operator were made in the context of an ongoing emergency, and thus, were non-testimonial, because the woman had just been assaulted by her boyfriend and she was unsure of whether he would return to assault her again. However, in Hammon v. Indiana, the Court held that a domestic abuse victim’s statements to the police were not made during an ongoing emergency, and thus were testimonial, because at the time the victim made the statements, the police officers had separated her away from her husband.
Still, it is important to note that the Court appears to be moving away from its strict definition of what constitutes an ongoing emergency. In a 2011 decision in Michigan v. Bryant, the Court expanded its definition of what constitutes as an ongoing emergency. In Bryant, police officers questioned a victim who had been shot and was lying in a gas station parking lot. The victim died from his injuries and police officers were permitted to testify to his statements at trial. The Court held that the primary purpose of the police officers’ questioning was to respond to an ongoing emergency. The Court stressed that because the shooter was on the loose, there was a continued threat to the public, and the officers asked the questions to assess danger to the victim and to ensure their own safety.
Consequently, it is unclear how the Supreme Court will decide the issues posed in State v. Clark. It is apparent, however, that the ruling will have ramifications for both children suffering abuse and for defendants accused of child abuse. If the Court finds that the preschool teachers’ mandatory reporting requirements made them agents of law enforcement, the effect would be that all professionals listed under mandatory reporter statutes would become law enforcement agents. In most states, mandatory reporting requirements extend to a broad range of professionals, such as, physicians, therapists, employees of child day-care centers, school teachers, nurses, etc. This would mean that these professionals would not likely be allowed to testify to children’s statements of child abuse. For young children, who may be found incompetent to testify at trial, this would increase the possibility that their abusers would go free.
On the other hand, if the court finds that the child’s statements were made in the context of an ongoing emergency, that categorization could lead to a slippery slope. If child abuse in itself constitutes as an ongoing emergency, why shouldn’t sexual assault or domestic abuse also qualify as ongoing emergencies? If the Court does qualify child abuse as an ongoing emergency, then defendants will not have a right to confront a child’s hearsay statements of abuse in court. This would increase the possibility of an innocent defendant being convicted of child abuse, when the child may have been mistaken or simply was not telling the truth about how he or she had been harmed.
The Supreme Court heard oral arguments for this case on March 2, 2015. If the Court decides to affirm the Ohio State Supreme Court’s ruling, then in child abuse cases where the child is either unavailable or has been found incompetent to testify, prosecutors will not be allowed to admit evidence of the child’s hearsay statements into court. In that event, prosecutors will have to find other means to prove a defendant committed child abuse and to ensure that victims of child abuse remain safe. However, if the court reverses the decision to overturn Mr. Clark’s convictions, then defense attorneys will have to fight harder to avoid their clients’ convictions. Because child abuse cases tend to appeal to jurors’ emotions and defense attorneys would not be able to cross examine the child’s hearsay statements, presenting a defense for a client accused of child abuse under those circumstances would become increasingly difficult.
In this case, the Court will have to balance the importance of protecting children from child abuse against the importance of ensuring that a defendant receives his Sixth Amendment right to confront the witnesses against him. In whichever way the Court decides the case, it is apparent that the effect will be that either prosecutors or defense attorneys will have a harder time proving their cases in court—at least where child abuse is concerned.
Senior Editor, Criminal Law Practitioner
Photo by Patrik Nygren via Flickr.