A Comment on the Supreme Court's Decision in Ohio v. Clark

the court's confrontation clause jurisprudence evolves

In Ohio v. Clark, decided this week, the U.S. Supreme Court held admissible in defendant’s criminal trial for child abuse, a teacher’s testimony that the three-year-old victim, upon being pressed for an answer, told his pre-school teacher that the defendant was responsible for the physical abuse noted by the teachers on the child. This on-the-stand report of the child’s out-of-court statement, was admissible even though the child did not take the witness stand for possible cross examination and jury scrutiny of his demeanor to gauge his accuracy.

Background of the Case

The Supreme Court was reviewing defendant’s state court conviction of child abuse. At that state trial, the child had been held incompetent to testify in person, so the teacher took the witness stand and recounted what the child had said to her. The defendant was convicted largely because of this recounting of the child’s statement (which statement had been somewhat reluctant, hesitant, and unclear).

Defendant appealed to the Supreme Court on the basis of the requirement in the U.S. Constitution that criminal defendants must be confronted with the “witnesses against” them (the so-called “Confrontation Clause”). Defendant had not been confronted by the child at trial—that is, had not been able to face and cross examine the child because the child was not (and could not be) put on the witness stand.

Under the Confrontation Clause, “witnesses against” a defendant does not mean merely witnesses who take the witness stand, but can include people who spoke only out-of-court, like the child did here. The Supreme Court had previously held (in the case of Crawford v. Washington in 2004 and subsequent cases) that the confrontation requirement applies to statements made or gathered out-of-court with a “testimonial” purpose (like statements garnered by police from eye-witnesses and others in order to get possible evidence for a prosecution, as in Crawford itself). The “testimonial purpose” requirement was arrived at by the Court by focusing on the word “witnesses” in the constitutional clause. Crawford explained that “witnesses” means those who “bear testimony”, which connotes something more formal and intentional than just friends casually talking to friends without ulterior motives.

Thus, the main issue in Clark was whether the conversation between the child and the teacher had a testimonial purpose. The defendant argued that indeed it did—that it was like the out-of-court police interrogation of an eye witness in Crawford, which had been held “testimonial” and thus inadmissible. The teacher, defendant Clark argued, was like the police in Crawford because the teacher, in addition to being a teacher, had a law-enforcement-like function: the teacher was under a state statutory duty to report child abuse (like teachers and other professionals in most states), making the case near enough to Crawford to result in exclusion of the evidence as testimonial.

The Court's Opinion

The Supreme Court did not see it that way. It decided against the defendant, holding that the child’s statement as recounted by the teacher, was admissible insofar as the Confrontation Clause is concerned. The teacher, the Court said, was principally concerned with ascertaining the facts and the abuser’s identity in order to immediately protect the child and siblings (and perhaps other children) from having further contact with the abuser. The focus was on preventing (through social service intervention or the like) any opportunity for further abuse and preventing returning the child after school to an abusive situation.

The Court added that the child also probably wished only to prevent further abuse, or may have had no ascertainable purpose at all.

For these reasons, the Court, per Justice Alito (writing for Justices Roberts, Kennedy, Breyer, Sotomayor, and Kagan) held that the primary purpose of the conversation between teacher and child was not to gather evidence for prosecution (the testimonial purpose that would make the child’s statement inadmissible) but rather was to protect against further abuse by identifying and removing the abuser relatively immediately from further contact. This was so even if there was awareness that the natural result would also be ultimate prosecution.

The situation in Clark was analogized to two previous post-Crawford cases where the purpose of official questioning was held by the Court not to be gathering evidence for prosecution (the testimonial purpose), but rather primarily to resolve an ongoing emergency (a non-testimonial purpose). In one of these cases (Davis v. Washington) a 911 caller seeking immediate help identified her domestic partner as someone who was currently (or a few seconds ago) perpetrating an attack. In the other (Michigan v. Bryant), a severely injured shooting victim described the attack and the attacker to police as he lay bleeding. The shooter was at large with a gun. In both these cases, the Supreme Court held that the purpose of the exchange with the victim was to resolve an on-going emergency, not a testimonial purpose, and the out-of-court statement was admissible.

The Court in Clark ridiculed the notion that the function of the teacher was in any measure like police or law enforcement, who are heavily and repeatedly tasked with bringing people to justice. The Court indicated that the status of the questioner as private or law enforcement or governmental bears on the likelihood the statement had a testimonial purpose. A finding that the statement is testimonial is more likely when the conversation was with law enforcement, although governmental or law enforcement involvement is not essential for such a finding. The teacher here was essentially a private person, the Court says, and this militates against finding the child’s statement to be testimonial.

The Clark decision supports its result of constitutional admissibility on a second ground, in addition to the “primary purpose” ground.

This second ground starts with the proposition that a primary purpose to gather or provide evidence for prosecution is a necessary condition for a conversation to be deemed testimonial, but not a sufficient condition. In other words, an out-of-court statement where the primary purpose is not to gather or provide evidence for prosecution, as was the case here, cannot violate the Confrontation Clause; but an out-of-court statement is not necessarily constitutionally suspect just because the primary purpose is to gather or provide evidence for prosecution. So even if the primary purpose here were to secure evidence for prosecution, there are circumstances under which the child’s statement still would not be testimonial. And those circumstances are present here, the Court says, as will be described below.

A Novel Proposition

This idea that admittance of a statement that had a primarily testimonial purpose may not be violative of the Confrontation Clause is a relatively new notion for the Court. It considerably narrows the reach of the Confrontation Clause. As an example of this new principle, the decision in Clark says that if there are out-of-court statements whose purpose was to gather or provide evidence for prosecution, but which were admissible historically at the time the Confrontation Clause was adopted, then they continue to be admissible today. Clark, the Court declares, involves a statement that was historically admissible. The decision cites some (slim) authority that child statements of the kind involved in Clark were admissible at common law prior to the adoption of the Confrontation Clause. So this is Alito’s second reason for admissibility.

Alito’s novel proposition (that the primary purpose test is not entirely definitive) provides a great escape hatch from the applicability of the Confrontation Clause as interpreted by Crawford.

The proposition makes Justice Scalia (the author of Crawford) apoplectic. In his separate opinion in Clark (joined by Justice Ginsburg) he concurs with the result that the child’s statement was constitutionally admissible, but only because the primary purpose was not testimonial, not because the primary purpose test has an exception for historically admissible statements as Alito declares in his second rationale.

But perhaps Scalia forgets that he opened the door to Alito’s novel proposition and the historical argument when he wrote in Crawford that the dying declaration exception to the hearsay rule may be exempt from Confrontation Clause scrutiny because of the historical reception of statements made while on one’s deathbed, even if the statement was made with a primarily testimonial purpose.

It is clear that Justice Alito, in writing the decision for the majority of the Court in Clark, is definitely looking to provide future escape hatches from a straightforward interpretation of Crawford. I have elsewhere written (in Rothstein, “Unwrapping the Box the Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations over Confronting the Confrontation Clause”, Howard Law Journal, Vol. 58, 2015, forthcoming, currently on SSRN since 2014) that many of the current justices on the Court are eager to find an escape from the corner they have painted themselves into with Crawford. They are in search of a way to narrow Crawford, whose logical implications they now have come to believe will deprive prosecutors of too much important and reliable evidence.

Justice Alito in Clark also provides another escape hatch for future cases—one that is clearly dictum and not really involved in the present case. He states that traditional exceptions to and exemptions from the hearsay rule provide some guidance as to what statements are not covered by the Confrontation Clause.

Justice Scalia waxes apoplectic over this suggestion as well. He regards it as a return to the Ohio v.Roberts case, which Crawford overruled. Roberts pretty much equated the hearsay rule with the Confrontation Clause: if an out-of-court statement satisfied a “firmly rooted” hearsay exception, it cleared not only the hearsay rule, but also the Confrontation Clause. Scalia regards Alito’s suggestion as a step backward toward Roberts—that is, as an abandonment of the primary purpose test spawned by Crawford.

In my view, Scalia is not necessarily correct here. The primary purpose test and consideration of hearsay exceptions may be reconcilable. The hearsay exceptions are fashioned on the notion that certain out-of-court statements are trustworthy. In many of the hearsay exceptions, the trustworthiness consists of an absence (on the part of the maker of the out-of-court statement) of a litigation, law enforcement, or prosecutorial purpose -- purposes that were particularly suspect at common law. See, for example, the hearsay exceptions for statements made for purposes of medical diagnosis or treatment, for business records, for excited utterances, and for present sense impressions. See also the co-conspirators’ statement exemption from the hearsay rule, which exemption requires that the purpose of the out-of-court statement be to further the conspiracy (rather than in derogation of it such as statements made to provide evidence against another conspirator in order to appear co-operative with and get favorable treatment from police and prosecutors). Thus, the hearsay exceptions and exemptions may be good indicators of what kinds of statements have been found to be free of testimonial (or prosecutorial) purpose. I conclude that the return to consulting hearsay exceptions in confrontation analysis, may be consistent with the “primary purpose” testimonial approach of Crawford, so long as the hearsay exceptions are just considered, not slavishly followed in the confrontation analysis.

It is worth noting that Justice Alito in writing Clark uses a technique he utilized in a previous confrontation case, Williams v. Illinois (2012). As noted above, he bases the decision in Clark on two independent grounds, which is the same thing he did in writing Williams. In Clark, the two grounds are the “purpose” grounds and the “historical” grounds described supra. When there are two grounds for a decision, it raises a question for future cases as to whether the decision would have been the same if only one of the grounds had been present on the facts. Either of the two rationales could be regarded as dictum (not essential to the decision, and thus not really precedent). From the way Clark is written, it seems that Alito intended the historical rationale to be secondary. That is therefore probably the one that would be deemed dictum, especially since it is new and not really supported by other decisions.

Points and Questions

Several other features of the Clark decision are worth mentioning:

--One somewhat appealing argument of defendant was that it was fundamentally unfair to admit the child’s statement when the child was declared incompetent to testify. To this argument, Alito has an incomprehensible and untrue response: that all the confrontation cases involve unavailable witnesses! “Unavailable” in this area does not mean merely not called to the witness stand. It means cannot be called, owing, for example, to death, sickness, or inability to locate despite diligent effort. That is not the kind of unavailability one inevitably finds in the confrontation cases.

--In response to defendant’s argument that because the jury would perceive a statement as equivalent to testimony, it is testimonial and therefore inadmissible, Alito notes that if that were the case, all hearsay statements used against the accused would be testimonial, which is not what the Supreme Court has held. This is better than his response to the unfairness point immediately above.

--Justice Alito also says that statements by young children usually will not be testimonial because a child would not normally have the testimonial purpose. This seems to place emphasis on the purpose of the speaker rather than the questioner, contrary to the rest of the opinion and other post-Crawford Supreme Court cases, which suggest that the purpose of both must be considered.

I have previously set forth (in Rothstein, “Ambiguous-Purpose Statements of Children and Other Victims of Abuse under the Confrontation Clause”, Southwestern University Law Review, Vol. 44, 2015, forthcoming, currently available since 2014 on SSRN) a series of then-open questions in Confrontation Clause jurisprudence, some of which I hoped Clark might shed light on when it came down. It has now come down. Here are those questions, with notations on each in italics, indicating whether the Clark decision answered them, and if so, how:

(a) What makes a purpose “primary” when there are mixed purposes? No answer.

(b) In determining purpose, what exactly is the dichotomy the Supreme Court has drawn between a purpose to “gather evidence of past fact” and a purpose to “resolve an emergency?” On which side of the line is preventing further abuse—say protecting a child or siblings from a parent by gathering evidence potentially usable in removal-of-the-child-from-the-home proceedings or preventing visitation or other contact? Answered: Protecting is not a testimonial purpose.

(c) Whose purpose—declarant or questioner—is the most significant when the purpose of each is materially different? Fudged: The Court analyzes the purpose of both and finds them consistent. Speaks of the purpose of the “conversation” which also fudges the question.

(d) What exactly is meant when the Supreme Court says the purpose is to be determined “objectively” from the standpoint of the reasonable person in the same circumstances? Not really addressed.

  1. Are we to consider the objective questioner, or the objective declarant? Implication is that both should be considered. But then says it is important that the CHILD, i.e., the declarant, usually has no testimonial purpose. On the other hand, there is much discussion of the teacher’s protective purpose.
  2. How much of the particular circumstances, experiences, sophistication, etc., of each are to be taken into account? The age of the declarant (child) should be taken into account. Or, if it is an outside observer, again, an observer with what experience, sophistication, and other characteristics? Does not talk as if it is an objective outside observer observing from outside the conversation. Speaks in terms of both participants.
  3. Is an objective child different from an objective adult? Apparently yes.
  4. Will an actual, express purpose, say to legally implicate somebody, or to obtain medical treatment, prevail over a presumed “objectively appearing” purpose? Apparently so, since the Court speaks in terms of the actual participants in the conversation.

(e) Should a statement be broken into parts when applying the primary purpose test, so that scrutiny of the purpose of each segment of a statement is necessary? This is not addressed, because probably not of significance in this case.

(f) Before there can be a Confrontation issue, is a connection to law enforcement or government required on the part of the person to whom the statement is made, and, if so, which is it, and how substantial a connection? Neither is absolutely required. For example, would an obligation to report child abuse be enough? No. Would it be enough that police often refer victims to this professional for treatment? Not addressed. Is there an independent requirement of such connection, or is the connection significant only to determining the purpose of the exchange? Significant only to the purpose or perhaps to other factors in the determination of testimoniality such as formality or historic reception of the evidence. Is a connection with a non-law-enforcement part of the government (as, e.g., a state social worker) distinguishable from a connection to law enforcement? Possibly. The decision mentions the heavily law enforcement orientation of police.

(g) Does a different test of purpose apply if the statement is made to someone who is not connected with law enforcement (assuming law enforcement connection is not an absolute requirement)? Declines to directly address—probably not a different LEGAL TEST, but an evidentiary factor. May have legal significance under the historic escape hatch or other factor considered in determining testimoniality such as formality. Does a different test apply if the recipient is not connected with government in any way? Same answer.

(h) Can volunteered statements without questioning or interrogation violate the Confrontation Clause? Not addressed.

(i) Under what circumstances, if any, can expert testimony relying on the child’s or victim’s statement circumvent the applicability of the Confrontation Clause to the statement? This possibility is raised by the plurality decision in the Court’s Williamscase in 2012. Not addressed.

(j) Under what circumstances, if any, is a statement made before police suspect a particular person subject to the Confrontation Clause, another factor suggested by Williams? Not addressed.

(k) Does the formality of the child’s or adult victim’s statement make a difference (and if so, what is meant by formality)? Does make a difference, but maybe only in the purpose calculation, and also maybe under the historical escape hatch. (Justice Thomas in his concurrence in Clark relies exclusively on the lack of formality/solemnity in the interview in the school between the teacher and the child. This lack is sufficient in his view to make the child’s statement non-testimonial and admissible because it was only certain formal solemn governmental sessions and civil-law type government gathering of evidence that were suspected at common law and that can properly be called “testimony”. Justice Thomas rejects the primary purpose test.)

In sum, there is still considerable work to be done by the court in fashioning its Confrontation Clause jurisprudence.