Ohio v. Clark

The parties in this case disagree over whether a child’s out of court responses to his teachers questions regarding suspected child abuse qualify as testimonial statements under the Confrontation Clause. Statements are testimonial if they are formally given during questioning to prove facts or evidence possibly applicable to a later criminal prosecution, and testimonial statements qualify as an out-of-court replacement for testimony. The Confrontation Clause of the Sixth Amendment allows a defendant to cross-examine the witnesses against him or her and governs testimonial statements of a witness who does not appear at trial.

Ohio contends that L.P.’s statements to his teachers are not testimonial under the Confrontation Clause because L.P. is too young to testify and his statements were made informally to his daycare teachers in a classroom, rather than formally in the courtroom, to the police, or to formal investigators. Further, Ohio also argues that when L.P’s statements are applied under the primary-purpose test, which evaluates whether out-of-court statements uttered under questioning were made with the main goal of producing testimony for trial, L.P.’s statements are not testimonial because L.P. made them informally and his teachers were questioning him in order to protect him and the classroom environment.

In contrast, Clark asserts that L.P.’s statements are testimonial under the Confrontation Clause because through the teachers being mandatory reporters of child abuse, the statements given to the teachers are akin to statements given to the police. Thus, Clarke argues that the primary-purpose test is satisfied here; L.P.’s statements and his teachers’ questions to him were to collect evidence that he had been abused, which would implicate criminal prosecution, and as such, Clark can cross-examine L.P. Clark claims that L.P. is mature enough to testify, that L.P.’s statements were made to his day care teachers who are authority figures, and that a ruling that L.P.’s statements are testimonial will uphold cross-examination and the adversarial process.

ARE A CHILD’S STATEMENTS TO PRIVATE PARTIES TESTIMONIAL UNDER THE CONFRONTATION CLAUSE?

Ohio maintains that L.P.’s statements to his day care teachers are not testimonial under the Confrontation Clause because L.P.’s statements were not given to the police in an official setting, such as a courtroom or police station. Additionally, Ohio asserts that L.P.'s statements are not testimonial because L.P. was only answering his teacher’ vague questions about his injuries and retelling alleged events. Ohio also contends that L.P.’s responses were not meant to be formal statements designed to support evidence of the alleged child abuse that L.P.’s teachers were asking him about. Rather, Ohio argues that L.P. spoke to two private individuals that fit under the category of friends and neighbors (two daycare teachers), and it was impulsively done in the informal setting of a classroom. Further, Ohio emphasizes that allowing statements to private parties to be testimonial frustrates the purpose of the Confrontation Clause, which is to uphold confronting witnesses through cross-examination to find the truth rather than relying on affidavits and depositions.

Clark counters that L.P.’s statements are testimonial evidence and do implicate witness testimony because they were given to his teachers who are L.P.'s authority figures, not his friends and neighbors, and at three years old, L.P.’s perception of his teachers as authoritative figures is even stronger. Additionally, Clark argues that L.P.’s statements that he gave to his teachers identifying Clark as abusing him were testimonial. Clark argues that L.P.’s statements are testimonial for a number of reasons. First, Clark notes that the teachers questioned L.P. to investigate who his abuser was. Next, Clark points out that the teachers were required to question L.P. under Ohio law. Finally, Clark argues that because the teachers then contacted Ohio authorities to aid them in finding L.P.’s alleged abusers, these constitute actions that are relevant to provide evidence for criminal prosecution and are thus testimonial in nature. Additionally, Clark argues that if L.P.’s statements are testimonial, Clark can cross-examine L.P. Furthermore, according to Clark, cross-examination is particularly helpful in this context due to the vague questions the teachers asked L.P. and the vague answers L.P. gave, raising the risk that Clark is not the one who harmed L.P.

DOES A CHILD’S STATEMENTS TO PRIVATE PARTIES APPLY UNDER THE PRIMARY PURPOSE TEST?

Ohio contends that under the primary purpose test for police questioning, which examines L.P.'s exchange with his teachers, if L.P. made his statements intending to use them for trial testimony, then his statements are testimonial. On the other hand, if L.P. did not intend to use his statements for trial testimony, then they are non-testimonial. Ohio argues that L.P. did not intend for his statements to be used as trial testimony and his statements are therefore non-testimonial. Ohio argues that this is because when L.P.’s teachers questioned him about his injuries, they were questioning L.P. to protect him and the classroom, not to investigate who hurt L.P. Additionally, Ohio asserts that because L.P. is three years old, his purpose during the exchange with his teachers was not to pursue criminal action, and due to his young age, his responses were automatic and influenced by his teachers’ leading questions. Ohio further argues that the questions that the teachers used were based on their roles as educators, and that neither of the teachers were the ones who called the police; rather, the supervisor did.

In contrast, Clark argues that the primary purpose test does apply to L.P.’s day care teachers because the Confrontation Clause implicates whether L.P.’s day care teachers were conducting investigative tasks that were related to the police, and not police conduct itself. Specifically, Clark states that the teachers questioned L.P. to find out who his abuser was, and while the teachers did want to protect L.P. and maintain safety in the classroom, their main purpose, as required by law under Ohio R.C. 2151.421, was to perform an investigative function similar to law enforcement. Clark further argues that the courts should focus not only protecting children, but also on the criminal prosecution for those that commit child abuse. Clark admits that it is rare for a non-police member to conduct investigative tasks but that it does happen occasionally, as in the situation here with L.P.'s day care teachers, and when non-police members do perform investigative tasks, the statements they collect are testimonial. Further, Clark asserts that it does not matter whether the individual making the statements had the intent to generate evidence for trial or not.

ARE YOUNG CHILDREN TOO YOUNG TO TESTIFY?

Ohio claims that young children, such as L.P., are too young to provide testimony and their statements are thus non-testimonial. Specifically, Ohio argues that under the Ohio R. Evid. 601(A), children younger than ten-years-old are too young to testify if they cannot recall evidence, remember facts, and give truthful accounts. Additionally, Ohio argues that young children are especially vulnerable to questioning patterns involving recurrence, selective reinforcement, and suggestion.

Clark counters that young children, such as L.P., are not too young to testify because like L.P., they can understand and respond to questions relating to serious issues. Clark also asserts that young children tend to be particularly brazen due to being less aware of bias and societal norms than adults, and thus young children are possibly more reliable on the witness stand. Clark also claims that jurors, like everyone else, regularly interact with young children and can read them well. Clark notes that although Ohio believes it is trying to prosecute child abuse cases through testimony from mandatory reporters so that children can avoid the trauma of testifying on the stand, rather than pushing to eliminate cross-examination and confrontation completely, Ohio should instead attempt to change the methods that children subject to testifying must endure.