Argued on March 2, 2015, Ohio v. Clark marks a crossroads in modern Confrontation Clause doctrine.  Roughly, the question is whether a mandated reporter – in this case, a schoolteacher – becomes an agent of law enforcement when questioning a child about the cause of the child’s abuse.  If he is an agent, and the interrogation of the child is performed for purposes of obtaining evidence for a future criminal prosecution, the child’s responses are testimonial, and admission of those statements absent the opportunity to cross-examine the child would violate the Confrontation Clause.  If, on the other hand, the mandated reporter is not an agent of law enforcement, and is interrogating the child for purposes of resolving an ongoing emergency (viz., the child’s abuse), the child’s statements are not testimonial, and may be admitted without affording the defendant the opportunity to cross-examine his accuser.

Teachers at Cleveland’s William Patrick Day Head Start Center are required to report instances of child abuse or neglect, and the Center trains its teachers to question potentially abused or neglected children about the sources of their injuries, including any individuals responsible.  On March 17, 2010, a three-year-old child came to school with facial injuries.  His teacher asked him how he got his injuries, and the child responded that his mother’s boyfriend, Darius Clark, had caused them.  The teacher duly reported this information, and precipitated in the arrest and charging of Mr. Clark for child abuse.  Before trial, a judge found the child incompetent to testify, but permitted inclusion of the child’s identification to his teacher of Mr. Clark as his abuser.

The Confrontation Clause provides, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”  (Emphasis added.)  Now, I referred to the current approach to the Confrontation Clause as “modern;” this is, however, something of a misnomer.  It is certainly the newer of the interpretations of the Confrontation Clause, but it is by no means “modern” – rather, it purports to adopt the “original” understanding of the Sixth Amendment, which prohibited “testimonial” hearsay.  That is to say, the Framers drafted Sixth Amendment to exclude out-of-court sworn testimony procured for no other purpose than prosecution; such statements were admissible in England beginning with the reign of Queen Mary.  See Crawford v. Washington, 541 U.S. 36, 43 (2004).  The Framers found the admission of such statements without affording the defendant the opportunity to challenge the declarant’s statements via cross-examination; and so the Confrontation Clause was born.  Thus, only statements made with the principal purpose of furthering a criminal prosecution qualify as “testimonial” hearsay within the meaning of the Sixth Amendment; if the statement is not “testimonial” – that is, was made to resolve an ongoing emergency – it is not testimonial.  For example, in Michigan v. Bryant, 131 S. Ct. 1143 (2011), the Court found that the statement of a fatally wounded man regarding the whereabouts of his assailant was non-testimonial, because it was made to resolve an “ongoing emergency” (namely, the fact that an armed man was running about Detroit).

Which brings us to the question: was the child’s statement, made at the formal questioning of his teacher, designed primarily for the purpose of prosecution, or for resolving an ongoing emergency?  Mr. Clark’s counsel, Jeffrey Fisher (who has argued nearly every major Crawford case, including the first) struggled under what appeared to be the ire of a skeptical Court: surely, the Justices seemed to say, the teacher was only interested in bringing the kid into safety, rather than prosecuting Mr. Clark!  The following colloquy, 35:22-36:20, illustrates the point.

MR. FISHER: . . . We don’t dispute that the teacher has a protective purpose, partly, in mind.  And I think it’s absolutely natural that the teacher would.  But the problem is, and our position is, that is inextricably intertwined with criminal prosecution as well.  That’s what the Ohio Supreme Court said, construing Ohio law, is that one of the chief methods of protection is prosecution.  And —

JUSTICE GINSBURG: Much too late.MR. FISHER: Well, it might be too late.  But, Justice Ginsburg, it doesn’t make it that much different than the situation you had in Hammon[ v. Indiana, 547 U.S. 813 (2006) (finding that a 9-1-1 call was testimonial because the crime had already happened and the call was made for purposes of prosecuting the offender)] involving domestic violence.  It doesn’t make it – that much difference in a situation you have with a police officer or someone else trying to get a drug dealer off the corner, to try to get a white-collar criminal to stop embezzling money.  All of those things are ongoing crimes, but gathering statements that help both stop the harm that’s occurring and are useful in the criminal justice proceeding, we think, are testimonial when that criminal incentive and purpose is intertwined with the protective purpose.

There are many other issues to discuss in Clark, but a potentially decisive one is whether the dominant purpose of asking the abused child who abused him was either (a) to prevent future abuse, or (b) to facilitate a future criminal prosecution.

To me, a central question is whether the proffered hearsay (namely, the Clark’s identity) is more relevant to resolving an ongoing emergency, or more relevant to facilitating a future criminal prosecution.  If, upon discovering that the abuse did not happen at school (which the record shows it clearly had not), then if all the teacher wanted to do was protect the child, she would have kept the child at school, called the relevant state or local children’s services organization, and reported suspected abuse at home.  In this scenario, the actual identity of the abuser is only marginally relevant to the non-testimonial purpose of asking for the abuser’s identity.  On the other hand, the actual identity of the abuser is categorically relevant to any future criminal prosecution, and the teacher was trained to obtain that information for that purpose alone.  Framed in this fashion, shouldn’t the case be a slam dunk for Mr. Clark?

Perhaps not.  Mr. Clark’s already got one certain vote against him – Justice Thomas’s interpretation of Crawford is so narrow (and so sui generis), that it simply could not countenance the child’s statement as testimonial.  So, if four Justices are prepared to say that the primary motive was to protect the child (which Justices Ginsburg, Kennedy, Alito, and possibly Sotomayor seem to think so, judging from the questioning), that’ll be that.  Worse, if the Court is interested in taking a test case to determine the status of statements made to non-law-enforcement actors, this is as unsavory a test case as one might desire to find.  The Justice’s (entirely warranted) sympathies for victims of domestic abuse seemed to be clouding the issues in the case, and it may well be that they won’t want to exclude the three-year-old’s statement purely on intuition.  Mr. Fisher probably felt as much when he found himself comparing the three-year-old victim of child abuse to an informant trying “to get a white-collar criminal to stop embezzling money.”  Constitutionally, he’s right; but the image war may be harder to win.