July 01, 2015

Admitting Three Year Old's Statements to Teachers Did Not Violate Confrontation Clause

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Ohio v. Clark, 2015 WL 2473372 (U.S.).

Trial court in a criminal abuse case properly admitted child’s statements regarding abuse by his teachers. Several factors pointed toward the primary purpose of the questioning not being intended as a substitute for trial testimony, including the child’s young age, the relationship between him and his teachers, and the fact that they were trying to determine if there was an imminent threat to his safety. 

Preschool staff noticed bruises and whip marks on a three-year-old child. He identified his mother’s boyfriend as causing them. The next day, a social worker examined him and found more marks. The social worker also found his younger sister was being physically abused. 

At trial on criminal abuse allegations, the statements of the child’s teachers relating what the child said about his abuse were introduced. The child did not testify. The trial court denied the defendant’s motion to exclude the statements under the Sixth Amendment. The jury convicted the defendant on several counts and sentenced him to 28 years imprisonment.

The Ohio Court of Appeals reversed the conviction on Confrontation Clause grounds and the Ohio Supreme Court affirmed. The U.S. Supreme Court reversed. 

Testimonial evidence is generally inadmissible through nontestifying witnesses unless the witness is unable to testify and the defendant had a prior opportunity to cross-examine the witness. A statement is ‘testimonial’ if the primary purpose of the conversation was to create an out-of-court substitute for testimony. Courts look to all relevant circumstances in determining the primary purpose. 

In this case, the child’s statements were not primarily for the purpose of creating evidence to prosecute  a case against the defendant. Primarily, his teachers were attempting to determine if there was an emergency, a threat to his safety, and to ensure his safety. The conversation was informal and spontaneous. The lack of formality tends toward it being less likely to command oath-like responses.

Further at the age of three, the child was among very young children whose testimony would rarely implicate the Confrontation Clause. It would be rare for a three year old to intend his statements to be used as a substitute for live testimony.

The Court also found it was also significant that the child was talking to his teachers. While individuals other than law enforcement can act in a similar role and be subject to Confrontation Clause concerns, here the teachers were not focused on prosecuting criminal behavior. Mandatory reporting obligations do not change this fact. While it is true that teachers’ duty to report abuse might lead to a prosecution that does not change the main purpose a teacher has to protect a child.