Criminal Law Update: Supreme Court Rules that Child’s Statements to Teacher do not Implicate the Sixth Amendment’s Confrontation Clause

Jul 06, 2015   

July 6th, 2015

On June 18, 2015, the Supreme Court in Ohio v. Clark (slip opinion available here), held that the Sixth Amendment’s Confrontation Clause applies to out-of-court statements by unavailable witnesses to persons other than law enforcements officers. However, while the Court held that such statements are “much less likely to be testimonial than statements to law enforcement officers,” the Court analyzed the statements at issue using the same “relevant circumstances” test it had previously established for analyzing out-of-court statements to law enforcement. In sum, the Court found that to whom the out-of-court declarant was speaking is a relevant consideration in assessing whether the out-of-court statement is “testimonial” in nature, thus triggering the protections of the Sixth Amendment. In its ruling, the Court held that a three-year old’s out-of-court statement to a teacher was not testimonial, and thus, admission of such statements into evidence did not violate the Sixth Amendment. Through this case, the Supreme Court continues to refine the bounds of the Confrontation Clause when dealing with hearsay statements.  In order to fully understand the implications of Ohio v. Clark, a brief primer on recent Supreme Court Confrontation Clause jurisprudence is necessary.

The Confrontation Clause vs. Admissible Hearsay Statements of Unavailable Witnesses

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This is known as the Confrontation Clause. This clause of the Sixth Amendment allows those standing in a criminal trial the right to cross-examine, question, or confront a witness who is testifying against him.

However, out-of-court statements by unavailable witnesses were historically admissible regardless of whether the out-of-court declarant had ever been subject to cross-examination so long as the statement bore adequate “indicia of reliability.” As Ohio v. Roberts, 448 U.S. 56 (1980) made clear, such reliability could be inferred without more in cases where the out-of-court statement by an unavailable witness fell within a firmly rooted hearsay exception.

The position of the Supreme Court regarding the breadth of the Confrontation Clause was refined inCrawford v. Washington, 541 U.S. 36 (2004), when the Supreme Court “held that the Confrontation Clause generally prohibits the introduction of ‘testimonial statements by a nontestifying witness, unless the witness is ‘unable to testify, and the defendant had had a prior opportunity for cross-examination.’” 541 U.S. at 54. The Supreme Court in Crawford declared that “‘witnesses against the accused” are “‘those who bear testimony’” and testimony is “a solemn declaration or affirmation made for the purpose of establishing or proving some facts.” 541 U.S. at 51. Therefore, the Confrontation Clause, per Crawford, only applies if a witness’s statements are sought to be admitted into court and the witness is unavailable to testify, or the defendant has not had a right to previously cross-exam the unavailable witness. In other words, under Crawford, where an out-of-court declaration is testimonial, the Confrontation Clause prohibits its use at trial unless the declarant is made available for cross-examination regardless of how “reliable” that out-of-court statement may be.

However, the Supreme Court in Crawford failed to define what statements were “testimonial.”  In Davis v. Washington, 547 U.S. 813 (2006) and Hammon v. Indiana, the Supreme Court expanded Crawford to define “testimonial” statements by ruling the following:

[s]tatements are nontestimonial when made in the course of police interrogations under circumstances objectively indicating that a 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 not such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

547 U.S. at 822.

This is known as the “Primary Purpose” test. To implicate the Confrontation Clause, a court must decide if the statements given were of the primary purpose to create a record for trial. If the primary purpose was to create a record for trial, then the statements are considered testimonial. If the primary purpose of the statements was not to create a record, then those statements are not considered testimonial. In establishing the primary purpose test, Davis and Hammon help flesh out the Confrontation Clause in relation to persons who are law enforcement officers. However, these cases fail to elucidate the test regarding statements made to those outside of law enforcement.

In the 2011 Supreme Court decision, Michigan v. Bryant, 562 U.S. 344 (2011), the Court further clarified the primary purpose test. The Court held that the primary purpose test is not one-factor determinative. Rather, “[i]n determining whether a declarant’s statements are testimonial, courts should look at all of the relevant circumstances.” 562 U.S. at 369 (emphasis added). The Court in Bryant explained that “all relevant circumstances” matter because “there may be other circumstances aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony.” 562 U.S. at 358. Therefore, ongoing emergencies are a factor, but not the only factor in the primary purpose test. An additional factor is “the informality of the situation and the interrogation.” 562 U.S. at 377. Under Bryant, to apply the primary purpose test, a court must view objectively all relevant circumstances to rule if the purpose of the conversation was to create an out-of-court substitution for trial testimony.  If the Primary Purpose test does not apply thereby not invoking the Sixth Amendment’s Confrontation Clause, then “the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause.” 562 U.S. at 358-359.

While the line of Confrontation Clause cases previously discussed help shape the limits of the clause’s implication, the Court until Ohio v. Clark failed to address statements given to individuals outside of law enforcement.

Ohio v. Clark

A Factual Overview:

In March 2010, Darious Clark pimped out his girlfriend—the mother of two young children—to Washington D.C. to prostitute herself. The two young children, a 3-year-old-boy and an 18-month-old girl were left in Clark’s care. Clark sent the oldest child to preschool with a black eye and markings on his body. When his teacher noticed the marks on him, the teacher asked the child what happened. The child responded saying it was Clark who caused them . Upon finding more bruising on the boy, school officials notified the child abuse hotline to alert authorities about the suspected abuse. Clark was subsequently indicted on multiple counts of felonious assault, endangering children, and domestic violence.

At Clark’s trial, “the State introduced [the child’s] statements to his teachers as evidence of Clark’s guilt, but [the child] did not testify.” 576 U.S. at 2. The child did not testify because “under Ohio law, children younger than 10 years old are incompetent to testify if they ‘appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or relating them truly.” 576 U.S. at 2-3.

Clark motioned the trial court “to exclude testimony about [the child’s] out-of-court statements under the Confrontation Clause.” 576 U.S. at 3. The trial court denied the motion, ruling that the statements were not testimonial. After the jury found Clark guilty on all counts but one, Clark “appealed his conviction, and a state appellate court reversed on the ground that the introduction of [the child’s] out-of-court statements violated the Confrontation Clause.” 576 U.S. at 3. The Supreme Court of Ohio affirmed the state appellate court’s decision stating that “teachers acted as agents of the state” and “the primary purpose of the teachers’ questioning ‘was not to deal with the existing emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution.’” 576 U.S. at 3.

The Court’s Rationale

The Supreme Court ruled that the statement given by the child was not testimony. In doing so, the Court looked at the earlier precedent set by the Court. The Supreme Court, through its precedent stated “the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause.” 576 U.S. at 7. This case is different than the precedent before it though, because the statements given were not given to a law enforcement officer, instead the statements were made to a teacher. Therefore, the Court was “presented with the question [it] [had] repeatedly reserved: whether statements to persons other than law enforcement officers are subject to the Confrontation Clause.” 576 U.S. at 7.

In its holding, the Court did not “adopt a categorical rule excluding” statements to individuals who are not law enforcement officers “from the Sixth Amendment’s reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers.” 576 U.S. at 7. Therefore, when considering all of the relevant circumstances before them, the Court found that the child’s “statements clearly were not made with the primary purpose of creating evidence for Clark’s prosecution. Thus, their introduction at trial did not violate the Confrontation Clause.” 576 U.S. at 7.

The Primary Purpose of the Child’s Statements 

When evaluating an out-of-court statement under the Primary Purpose test, the imminence of an ongoing emergency helps determine the context of the statement. The Court found in this instance that the child’s statements “occurred in the context of an ongoing emergency involving suspected child abuse.” 576 U.S. at 7. It was important for the school to determine “whether it was safe to release [the child] to his guardian at the end of the day, they needed to determine who was abusing the child.” 576 U.S. at 8. Using the precedent set forth in Bryant, the Court ruled, “[t]hus the immediate concern was to protect a vulnerable child who needed help . . . [T]he teachers’ questions were meant to identify the abuser in order to protect the victim from future attacks.” 576 U.S. at 8.

The Court noted that there is also “no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecution.” 576 U.S. at 8. The teachers never eluded to or informed the child what the intent of their questioning was or what the statements made would amount to. Further, the “informal and spontaneous” conversation between the child and the teacher was conducted in the same manner “as a concerned citizen would talk to a child who might be the victim of abuse.” 576 U.S. at 8. The dialogue was in no way formal, as the questioning in Crawford was, the setting was first in a preschool lunchroom and then classroom. The informal atmosphere coupled with the ongoing emergency lead the Court to rule that the primary purpose of the questioning was to protect a child who potentially was a victim of abuse. However, the Court does create dictum when it writes, “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause.” 576 U.S. at 9. This statement implies that there may be an age cut off before the Confrontation Clause can be invoked.

Clarke’s Rebuttal

In its opinion, the Court refutes Clark’s effort to analogize teachers with police due to Ohio’s mandatory reporting status. In response, the Court says

[l]ike 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 students into a law enforcement mission aimed primarily at gathering evidence for a prosecution. 576 U.S. at 11.

Moreover, the Court emphasized that the mandatory reporting law is irrelevant because the child who gave incriminating statements would be unable to testify due to Ohio’s laws of evidence under which, he is deemed incompetent.

The Post-Clark Confrontation Clause

The Supreme Court’s most recent ruling regarding the Confrontation Clause (Ohio v. Clark) adds one more level to the Confrontation Clause scheme. For the first time, the Supreme Court addressed the confrontation clause out of the law enforcement context. While the court fails to adopt a bright-line rule, the court does set some boundaries, to wit:

  1. The primary purpose test is not rigid, and the entire context of the situation must be analyzed.
  2. Statements made to non-law enforcement officers may be subject to the Confrontation Clause, even though such statements are much less likely to be considered testimonial.
  3. The way in which the questioning was conducted (formal v. informal, spontaneous v. planned, location) influences the analysis as to if the statement is considered testimonial.
  4. The relationship between the individual giving the statement and the individual listening matters.
  5. Young children who give statements will likely not implicate the Confrontation Clause because a young child’s understanding of the criminal justice system is not developed.

The attorneys at Fuerst Ittleman David & Joseph have extensive experience in the areas of white collar criminal defense, criminal appellate practice, and litigating against the U.S. Department of Justice. Should you have any question or need further assistances, please contact us by email at or telephone at 305.350.5690.