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SCOTUS’s application of “primary purpose” test presages a narrowing of what is “testimonial” for Confrontation Clause purposes

Ohio v. Darius Clark, USSC No. 13-1352, 2015 WL 2473372 (June 18, 2015), reversing State v. Clark, 999 N.E.2d 592 ((Ohio 2013); Scotusblog page (including links to briefs and commentary)

A unanimous Supreme Court holds that statements a child made to his teachers about who was physically abusing him were not “testimonial” for purposes of the Confrontation Clause. The Court agrees that the Confrontation Clause may apply (at least in the abstract) to statements made to someone other than a law enforcement officer; however, a majority of the Court says that, in general, statements made to someone who is not a law enforcement officer “are much less likely to be testimonial than statements made to law enforcement officers” and, with regard to children in particular, “[s]tatements made by very young children will rarely, if ever, implicate the Confrontation Clause.” The decision is therefore likely to lead to a more restrictive application of the Confrontation Clause jurisprudence adopted in Crawford v. Washington, 541 U.S. 36 (2004), and thus more frequent admission of out-of-court statements of witnesses.

Preschool teachers discovered various injuries on 3–year–old L.P., so they asked him what happened; he eventually identified Clark as his abuser. After L.P. was deemed incompetent to testify, the state was allowed (over Clark’s objection) to introduce L.P.’s statements to his teachers. The Ohio Supreme Court held those statements were “testimonial” and, therefore, introducing them into evidence violated Clark’s right to confrontation. (Slip op. at 1-3). The Supreme Court reverses.

When the Court repudiated its prior Confrontation Clause jurisprudence in Crawford v. Washington, 541 U.S. 36 (2004), it declined to provide a “comprehensive definition” of what it means for a statement to be “testimonial.” Id. at 68 n.10. But in the cases since Crawford, the Court has applied what is often called the “primary purpose” test. That test asks whether, viewed objectively, the statement has the primary purpose of establishing or proving past events relevant to a criminal prosecution, as opposed to some other purpose—e.g., aiding police dealing with an ongoing emergency. Davis v. Washington and Hammon v. Indiana, 547 U.S. 813, 822 (2006); Michigan v. Bryant, 562 U.S. 344, 358 (2011). Applying that test here, the Court concludes that “considering all the relevant circumstances here, L. P.’s statements clearly were not made with the primary purpose of creating evidence for Clark’s prosecution.” (Slip op. at 7).

The reasoning for this conclusion is worth quoting at length as it will figure in future arguments about whether a statement is “testimonial” for Confrontation Clause purposes:

  • First, like Davis and Bryant, L.P.’s statements occurred in the context of an “ongoing emergency” involving suspected child abuse:

There is no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecution. On the contrary, it is clear that the first objective was to protect L.P. At no point did the teachers inform L.P. that his answers would be used to arrest or punish his abuser. L.P. never hinted that he intended his statements to be used by the police or prosecutors. And the conversation between L.P. and his teachers was informal and spontaneous. The teachers asked L.P. 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. This was nothing like the formalized station-house questioning in Crawford or the police interrogation and battery affidavit in Hammon. (Slip op. at 8-9).

  • Second, the fact that L.P. was speaking to his teachers is another “highly relevant” part of the context:

…. Courts must evaluate challenged statements in context, and part of that context is the questioner’s identity. See [Bryant, 562 U.S.] at 369. 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. …. It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police. We do not ignore that reality. …. (Slip op. at 10).

  • Third, L.P.’s age is important for assessing the purpose of the statements:

…. 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.” …. Thus, it is extremely unlikely that a 3–year–old child in L.P.’s position would intend his statements to be a substitute for trial testimony. On the contrary, a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all. (Slip op. at 9).

Justice Scalia (joined by Justice Ginsburg) concurs, agreeing that the application of the primary purpose test shows L.P.’s statements weren’t testimonial. (Scalia concur. at 1-2). But he stresses that is all the judgment holds. (Id. at 2). In his typically tart style, Justice Scalia says the majority’s author (Justice Alito) “unabashedly displays his hostility to Crawford and its progeny, perhaps aggravated by inability to muster the votes to overrule them” and attacks and then debunks the dicta in the majority opinion that might mislead readers. (Id. at 3-4).

Justice Thomas also concurs, applying his own unique test for whether a statement is “testimonial,” the sum and substance of which is assessing whether the statement bears “sufficient indicia of solemnity to qualify as testimonial.” (Thomas concur. at 2). L.P.’s statements don’t meet his test, as “[t]hey were neither contained in formalized testimonial materials nor obtained as the result of a formalized dialogue initiated by police. …. Nor is there any indication that L.P.’s statements were offered at trial to evade confrontation. …. (Id. at 3).

We noted at the outset that this decision will likely lead to a more restrictive application of Crawford and a greater latitude in the admission of out-of-court statements of witnesses, especially “very young children.” That is because the decision signals to the lower courts that statements should generally not be considered “testimonial” if the police aren’t taking the statement. The first signal is the majority saying this case presents the question of “whether statements to persons other than law enforcement officers are subject to the Confrontation Clause.” (Slip op. at 7 (emphasis added)). The majority then says that “[b]ecause at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, we decline to adopt a categorical rule excluding them from the Sixth Amendment’s reach.” (Id.).

Of course, if only “some” statements to non-law enforcement “conceivably” raise an issue, then most statements to non-law enforcement won’t raise an issue. Indeed, the majority decision explicit says that: Statements to non-law enforcement personnel “are much less likely to be testimonial than statements to law enforcement officers.” (Id.). And: “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.” (Id. at 10). Thus, while the decision may not be categorically excluding from the Confrontation Clause statements to someone who’s not a police officer, it assuredly puts a thumb on the “primary purpose” scale in favor of finding that such a statement is not testimonial. The same is true with respect to statements from at least some children, given that the majority says that “[s]tatements made by very young children will rarely, if ever, implicate the Confrontation Clause.” (Id. at 9 (emphasis added)).

Practically speaking, then, when arguing that a statement made to someone other than a police officer is “testimonial,” you will need to focus on whether there’s something that can be characterized as an “ongoing emergency”; on the age, sophistication, and understanding of the person making the statement; and on who was doing the questioning of the witness. Note, however, that the other big issue posed by this case (discussed in our post on the cert. grant) was whether someone who is a mandatory reporter of child abuse is like a law enforcement officer, thus making statements to that person more likely to be for the purpose of prosecution and therefore more likely to be testimonial. All the Justices rejected that line of argument. As the majority put it, the preschool teachers’  mandatory reporting obligation did not make L.P.’s teachers equal with the police or turn their “caring questions” into “official interrogations.” Instead, “[t]he teachers’ pressing concern was to protect L.P. and remove him from harm’s way. Like all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse. And mandatory 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.” (Slip op. at 11).

UPDATE (6/19/15): Confrontation guru Richard Friedman comments on the case here.

UPDATE (6/23/15): Some additional thoughts on the impact of the decision are here.

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