Teacher’s Testimony Recounting Child’s Allegations of Abuse Violates Confrontation Clause
The Supreme Court of Ohio ruled today that the Confrontation Clause of the U.S. Constitution bars the admission of statements made by a 3-year-old child to a preschool teacher identifying an alleged perpetrator of child abuse when there is no ongoing emergency and when the teacher acts with the primary purpose of gathering information related to past criminal conduct.
In a majority opinion authored by Justice Terrence O’Donnell, the court held that a teacher acts in a dual capacity as an instructor and as an agent of the state for law enforcement purposes when questioning a child about suspected abuse in furtherance of the teacher’s mandatory duty to report child abuse.
The 4-3 decision affirms the judgment of the Eighth District Court of Appeals, which reversed the convictions of Darius Clark of Cleveland for felonious assault, endangering children, and domestic violence and returned the case to the common pleas court for a new trial.
Clark lived with his girlfriend, her 3-year-old son, L.P., and her 2-year-old daughter, A.T. In March 2010, Clark dropped off L.P. at a Cleveland preschool center. One of his preschool teachers, Ramona Whitley, observed that L.P.’s left eye appeared bloodshot and bloodstained, and she noticed welt marks on his face. Whitley notified the class’s lead teacher, Debra Jones, who asked L.P., “Who did this?” Jones testified that L.P. “seemed kind of bewildered. He said something like Dee, Dee.” Suspecting child abuse, Whitley reported it to the county department of child and family services. A social worker confronted Clark when he came to pick up the child from school. Clark denied responsibility for L.P.’s injuries and left with the child.
The next day, another social worker located the children and took them to the hospital. The physician who examined them suspected that both children had been abused. The state identified Clark as “Dee” and charged him with felonious assault, endangering children, and domestic violence.
At trial, the court declared L.P. incompetent to testify but permitted his out-of-court statements identifying Clark through witnesses, including Whitley and Jones. The jury found Clark guilty, and the court sentenced him to a 28-year prison term.
Clark appealed to the Eighth District Court of Appeals, claiming that the trial court violated his Sixth Amendment right to confront witnesses when it allowed various individuals to testify about identifying statements that L.P. had made to them.
The appellate court reversed Clark’s convictions and remanded the case for a new trial. The state appealed the decision to the Supreme Court. The court agreed to hear only the issue of whether the teachers’ testimony about L.P.’s statements was testimonial and therefore inadmissible pursuant to the Confrontation Clause.
In the majority opinion, Justice O’Donnell explained that Ohio law (R.C. 2151.421) imposes a duty on teachers to report actual or suspected child abuse and expressly contemplates prosecution for criminal acts of abuse as a means of protecting children. He stated that when a teacher suspects child abuse and questions the child to identify the perpetrator in furtherance of the duty established by R.C. 2151.421, “[the] teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes.”
Justice O’Donnell noted that in Davis v. Washington (2006) the U.S. Supreme Court enunciated the “primary-purpose test” to determine whether a statement made during an investigation to a law-enforcement officer or an agent of law enforcement is testimonial hearsay that implicates the confrontation rights of the accused. According to the primary-purpose test: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
In analyzing the U.S. Supreme Court directive regarding whether a statement is testimonial or not, Justice O’Donnell stated: “Although a teacher’s questioning of a child about suspected injury is consistent with a duty to report potential abuse and arises from a concern to protect a child, the United States Supreme Court’s Confrontation Clause analysis requires that we ascertain the ‘primary purpose’ for the questioning.” Here, he continued, “[t]he record reveals that no emergency existed either at the time Whitley observed L.P. or when Jones questioned him. His teachers were ‘shocked’ by his injuries and immediately suspected child abuse; they separated L.P. from other students and in a formal question-and-answer format, they sought facts concerning past criminal activity to identify the person responsible.”
“Thus, the primary purpose of that inquiry was not to extricate the child from an emergency situation or to obtain urgently needed medical attention, but rather was an information-seeking process to determine what had occurred in the past and who had perpetrated the abuse, establishing past events potentially relevant to later criminal prosecution. L.P.’s statements identifying Clark as responsible for his injuries are therefore testimonial and should have been excluded from evidence pursuant to the Confrontation Clause.”
The court’s majority opinion was joined by Justices Paul E. Pfeifer, Sharon L. Kennedy, and William M. O’Neill.
Chief Justice Maureen O’Connor dissented in an opinion joined by Justices Judith Ann Lanzinger and Judith L. French.
In her dissent, Chief Justice O’Connor wrote: “The majority decision creates confusion in our case law, eviscerates Evid.R. 807, and threatens the safety of our children. Not surprisingly, it is also wrong as a matter of federal constitutional law.”
“A teacher is not an agent of law enforcement for the purpose of determining whether a statement is testimonial under the Confrontation Clause merely because that teacher has a statutory duty to report child abuse,” she explained. “On the record before us, there is no basis from which to conclude that the injured child’s teachers acted on behalf of law enforcement. Therefore, there is no support in the law or on these facts for the conclusion that the statements made to the teachers by L.P., the injured child, or similar statements made to teachers in any Ohio schoolroom, should be scrutinized under a test that is otherwise applicable only when the interviewer is an agent of law enforcement.”
“Instead, statements to teachers should be scrutinized under the objective-witness test, which is applicable when the questioner is not an agent of law enforcement,” the chief justice reasoned. “In this appeal, the teachers questioned L.P. about his injuries to protect L.P. and possibly other students from additional injury, and to maintain a secure and orderly classroom in which learning could take place. No objective witness could reasonably believe that the interviews served a prosecutorial purpose rather than a protective one.”
“The majority’s holding is, in reality, an attack on Evid.R. 807, which permits admission of certain hearsay statements made by child victims about physical or sexual abuse,” she continued. “Even though the state-law evidentiary issue is not before us, it occupied more than half of the oral-argument time in this case. The majority’s insistence on undermining Evid.R. 807 wreaks havoc on our Confrontation Clause analytical framework. … The very people who have the expertise and opportunity to recognize child abuse are now prohibited in Ohio from testifying about any out-of-court statements that a child makes about abuse or neglect when the child, for whatever reason, is unable to testify. … Children in Ohio will go unprotected.”
The chief justice concluded: “Thus, under the law of this court and the United States Supreme Court, I would hold that the classroom statements made by this small child, L.P., to his teachers are nontestimonial and thus are not excluded by the Confrontation Clause.”
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