{"id":24684,"date":"2015-06-26T21:28:57","date_gmt":"2015-06-27T02:28:57","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=24684"},"modified":"2015-06-26T21:28:57","modified_gmt":"2015-06-27T02:28:57","slug":"ohio-v-clark-the-supreme-courts-latest-pronouncement-on-the-confrontation-clause","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2015\/06\/ohio-v-clark-the-supreme-courts-latest-pronouncement-on-the-confrontation-clause\/","title":{"rendered":"Ohio v. Clark: The Supreme Court\u2019s Latest Pronouncement on the Confrontation Clause"},"content":{"rendered":"

By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial. Importantly, though, the Confrontation Clause only limits the use of statements that are \u201ctestimonial\u201d in nature. A pair of Supreme Court cases from 2006 clarified what makes a statement testimonial, but left an important question unanswered. Last week, the Court finally provided an answer (sort of) in Ohio v. Clark<\/em>.<\/p>\n

Clark<\/em> featured an unusually unsympathetic defendant who was convicted of physically abusing his girlfriend\u2019s two very young children. \u00a0<\/p>\n

The older child, three-year-old L.P., attended a preschool, where his teachers noticed his injuries and asked him who did it. He replied, \u201cDee,\u201d which was the nickname of the defendant Darius Clark. The teachers alerted the authorities, which eventually led to charges against Clark.<\/p>\n

At trial, L.P. could not be called to testify against Clark because of his age, but state law permitted his out-of-court statement to the teachers to be introduced into evidence through an exception to the hearsay rule. Clark invoked the Confrontation Clause, but without success in the trial court. However, the state appellate courts overturned his convictions, holding that L.P.\u2019s statement should have been excluded. The U.S. Supreme Court then took the case and reversed, ruling against Clark and reinstating the convictions.<\/p>\n

Clark<\/em> required the Supreme Court to address a question that had been left unanswered by the two 2006 cases, Davis v. Washington<\/em> and Hammon v. Indiana<\/em>. Both involved statements made by victims of domestic abuse to law enforcement officers. In order to decide whether these statements were testimonial, the Court developed the primary purpose test. This test asks whether the primary purpose of the statement at issue was to enable a response to an ongoing emergency, or establish past events that may be relevant to a future criminal prosecution. Using this test, the Court held in Davis<\/em> that a victim\u2019s statements during a 911 call in the midst of a violent attack were not \u201ctestimonial\u201d and could be used against the attacker. On the other hand, the Court held in Hammon<\/em> that a victim\u2019s statements made to police after she had been isolated from the attacker were testimonial and subject to exclusion under the Confrontation Clause.<\/p>\n

Clark<\/em> squarely presented a question that was reserved in Davis, Hammon<\/em>, and other earlier cases: whether the Confrontation Clause analysis applies to statements made to people who are not law enforcement officers. Recall that the statement at issue in Clark<\/em> was made to teachers.<\/p>\n

The Court answered this question with a \u201cyes, but . . .\u201d<\/p>\n

Here\u2019s what Court said:<\/p>\n

Because 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\u2019s reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers.<\/p><\/blockquote>\n

That question resolved, the Court considered whether L.P.\u2019s statements were testimonial under the primary purpose test. In concluding not, the Court emphasized these considerations:<\/p>\n

    \n
  1. There was an ongoing emergency involving suspected child abuse, and an immediate need to determine whether it was safe to send L.P. home at the end of the school day; the Court thus analogized L.P.\u2019s statement to the 911 call in Davis<\/em>.<\/li>\n
  2. There was no indication by anyone that the statement would be used in connection with a criminal prosecution. Neither the teachers nor L.P. himself ever said anything about a potential arrest or charges.<\/li>\n
  3. The conversation between the teachers and L.P. was spontaneous and informal; this was specifically distinguished from the police interrogation in Hammon<\/em>.<\/li>\n
  4. L.P. was only three. The Court said, \u201cStatements by very young children will rarely, if ever, implicate the Confrontation Clause. . . . [I]t is extremely unlikely that a 3-year-old child in L.P.\u2019s position would intend his statements to be a substitute for trial testimony.\u201d<\/li>\n
  5. Statements like L.P.\u2019s would probably have been admissible at common law.<\/li>\n
  6. Teachers, not police, elicited the statement. The Court said, \u201cStatements 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.\u201d<\/li>\n<\/ol>\n

    What we see here then, is a totality-of-the-circumstances analysis that highlights several different considerations. Although some of the Court’s language casts doubt on whether the Confrontation Clause would ever keep out statements made to people who are not law enforcement officers, the Court\u2019s discussion of a variety of diverse considerations creates possibilities for defense counsel to try to distinguish Clark<\/em> in future cases.<\/p>\n

    Cross posted at Life Sentences.<\/p>\n","protected":false},"excerpt":{"rendered":"

    By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial. Importantly, though, the Confrontation Clause only limits the use of statements that are \u201ctestimonial\u201d in nature. A pair of Supreme Court cases from 2006 clarified what makes a […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[126,30,122,24],"tags":[],"class_list":["post-24684","post","type-post","status-publish","format-standard","hentry","category-constitutional-law","category-criminal-justice","category-public","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/24684","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=24684"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/24684\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=24684"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=24684"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=24684"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}