In the preschool lunchroom, a teacher notices that a three-year-old pupil has an eye that looks bloodshot. She asks him what happened; he says nothing, then claims that he fell. Shortly after, in a better-lit classroom, the teacher notices a series of marks on the boy. She gets other teachers involved, and they discover even more injuries. They ask the boy who hurt him. He mentions his mother’s boyfriend. The teachers, legally obligated to report suspected abuse, notify the authorities.
The boy cannot testify at the boyfriend’s trial for felony child abuse because of a state law about children younger than ten taking the stand. But state law allows prosecutors to introduce reliable hearsay by child abuse victims. The question is whether, despite the hearsay law, a teacher testifying to what the boy said violates the defendant’s right to confront the witnesses against him.
On June 18, in a case involving essentially the facts above, the U.S. Supreme Court answered this query in the negative. The Ohio v. Clark majority held that this kind of hearsay evidence doesn’t violate the Sixth Amendment’s Confrontation Clause. (576 U. S. ____ (2015).)
The Confrontation Right
In a 2004 decision, Crawford v. Washington, the U.S. Supreme Court limited the opportunities for prosecutors to use out-of-court statements to get convictions. (541 U. S. 36 (2004).) That case rested on the Confrontation Clause, which says, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
Specifically, Crawford established that prosecutors can’t introduce a witness’s “testimonial” out-of-court statements unless:
- the witness isn’t available to testify and
- the defendant had an earlier chance to cross-examine the witness.
The Court explained that a statement gets the “testimonial” tag if the main purpose of the conversation that produced it was to create evidence that could be used in lieu of the witness testifying at trial. Think of a police officer interviewing a witness at the stationhouse.
Not Testimony, but “Testimonial”?
In the Clark case, like so many others involving Crawford issues, the defendant hadn’t had a prior opportunity to cross-examine the now-unavailable witness. So, the admissibility of the child’s statements turned on whether they were testimonial.
The Clark Court decided that they weren’t, that their primary purpose wasn’t to create evidence to use against the defendant. The majority reasoned that the statements came about because of an “ongoing emergency” of potential child abuse. The teachers’ questions and the boy’s answers “were primarily aimed at identifying and ending the threat.”
The Court also cited the fact that:
- the teachers didn’t tell the boy that his answers would be used to either arrest or prosecute the defendant
- the boy never indicated that he intended for police or prosecutors to use his statements
- the conversation was “informal and spontaneous,” and
- the teachers asked about the injuries as soon as they discovered them, in an informal school setting (rather than, for instance, the setting of a police station).
The Court additionally noted the relevance of the boy’s youth: Because they don’t “understand the details of our criminal justice system,” very young children will “rarely, if ever” give “testimonial” statements. They simply don’t know enough to form intent that their statements be used as substitutes for trial testimony.
Another key point of the Clark decision was the role of the teachers—not police officers—as interviewers. The Court didn’t go as far as saying that statements to people other than law enforcement officers are never testimonial. But it came close: “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.”