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Abused Child's Statements deemed Non-testimonial - No 6th Amendment Confrontation Clause Violati


In a truly horrific account of bruised and beaten children, the Supreme Court describes the abuser as someone who sent the mother of these children hundreds of miles away to prostitute herself. These children were in the care of Clark, also known as "Dee." Under his care, this woman's children suffered bruises, black eyes, belt marks, and bruises. One child had "two black eyes, a swollen hand, and a large burn on her cheek, and two pigtails had been ripped out at the roots of her hair." (Pp. 2). After the teachers questioned one of these children, they reported the abuse and Clark was arrested.

Clark was indicted on five counts of felony assault, two counts of endangering children, and two counts of domestic violence. At trial (T1), the children's statements to the teacher were introduced albeit that neither child testified. Ohio law provides that children under 10 are incompetent to testify in certain circumstances. After a hearing on the matter, the trial court concluded that one of the children (L.P.) was not competent to testify. The jury convicted Clark on all counts except for one, sentencing him to 28 years in prison. Clark ("Dee") appealed and the (T2) appellate court reversed on the grounds that the introduction of the out of court statements (L.P.) were a violation of the confrontation clause. The Ohio Supreme Court (T3) affirmed, holding that "under this Court's Confrontation Clause decisions, [the child's] statements qualified as testimonial because the primary purpose of the teachers' questioning 'was not to deal with an existing emergency but rather t gather evidence potentially relevant to a subsequent criminal prosecution.' " The Supreme Court (T4) reverses….

6th Amendment: " The Sixth Amendment’s Confrontation Clause, which is binding on the States through the Fourteenth Amendment, provides: 'In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.'" (Pp. 4). [In Crawford v. Washington, 541 U. S. 36 (2004), we adopted a different approach. We explained that “witnesses,” under the Confrontation Clause, are those “who bear testimony,” and we defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Id., at 51 (internal quotation marks and alteration omitted). The Sixth Amendment, we concluded, prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Id., at 54.] (Pp. 4)

Confrontation Clause & Primary Purpose Test: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Pp. 5, citing Davis v. Washington, 547 U.S. 813 (2006). In sum, when the statements are made in response to an ongoing emergency and not to create a record for trial, the statements will be admissible. What is an emergency must be determined by the facts - is there an ongoing emergency, the formalities of the situation, whether such statements are elicited for testimony and evidence for the prosecution. "[U]nder our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial." (Pp. 7). Yet, this rule does not displace the longstanding common law. Indeed, "the Confrontation Clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding." Id. (citing Giles v. California, 554 US 353, 358-359 (2008); Crawford, 541 US, at 56, n. 6, 62)).

Here, the statements were not made to the police, on someone's deathbed or in the context of ongoing domestic violence but rather to preschool teachers upon their questioning a child who was obviously beaten. The Court emphasizes the fact that these were teachers concerned for a child who was obviously injured by another person rather than a police officer investigating child abuse. Rather than adopt a categorical rule, the Supreme Court makes clear from the outset that "such statements are much less likely to be testimonial statements than statements to law enforcement officers." Finding that this was an ongoing emergency concerning child abuse, the Court notes that the teachers became worried and concerned whether they could release these children to their guardian, here Clark; "[t]hus, the immediate concern was to protect a vulnerable child who needed help." Pp. 8.

The Court found that the questions from the teachers and the responses from the child were spontaneous - "[t]he teachers asked [the child] about his injuries immediately upon discovering them, in the informal setting of a preschool lunchroom and classroom, and they did so precisely as any concerned citizen would talk to a child who might be the victim of abuse." Pp. 9. Without discussing the possibility for suggestion or the psychological limitations of child memory or ability to revisit traumatic situations, the Court states that the child's "age fortifies our conclusion that the statements in question were not testimonial." (Pp. 9).

Few preschool students understand the details of our criminal justice system. Rather, “[r]esearch on children’s understanding of the legal system finds that” young children “have little understanding of prosecution.” Brief for American Professional Society on the Abuse of Children as Amicus Curiae 7, and n. 5 (collecting sources).

The statements to the teachers are admissible. Alluding to the possibility that there may have been mandatory reporting requirements, the Court finds that "[s]tatements made to someone who is not principally charged uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers." Pp. 10. Indeed, "[m]andatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution." (Pp. 10).

The concurrence by Justice Scalia, with whom Justice Ginsburg joined, discusses some of the psychological implications of child testimony. This was not to invoke the "coercive machinery of the State" but rather the child's "age refutes the notion that he is capable of forming such a purpose." Id. Indeed, "[a]t common law, young children were generally considered incompetent to take oaths, and were therefore unavailable as witnesses unless the court determined the individual child to be competent." Id. (citing Lyon & LaManga, The History of Children’s Hearsay: From Old Bailey to Post-Davis, 82 Ind. L. J. 1029, 1030-1031 (2007)).

The child here was three years old. He was asked questions by his teachers at school. Although it is not discussed whether the teachers were appropriately trained to elicit such statements, one must assume that they were under these circumstances. The Scalia concurrence makes clear that the surroundings and nature of the statements are far from testimonial. Justice Scalia further states that the case here, like long standing precedent before Crawford, should focus on whether the statements bore the indicia of reliability. He states that although Crawford remains law, the pre-Crawford approach should remain available. Writing separately, Thomas concurs that young children will rarely implicate the Confrontation Clause yet writes to explain why the primary purpose test should not apply here: this was a private person, the teacher, not an arm of law enforcement.

Holding: The child's statements are non-testimonial and, thus, did not violate the Confrontation Clause.

The case is Ohio v. Clark, No. 1301352, 576 US ___ (June 18, 2015).

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