You can't always predict the outcome of a case from the oral argument, but the operative word is "always." Usually, you have a pretty good idea.
Such was the case with Darius Clark. He'd been convicted of abusing his 3-year-old son based on statements the boy made to detectives, social workers, teachers, and relatives. The boy himself didn't testify; they judge found him incompetent. The 8th District reversed, concluding that the statements should have been admitted, but the state appealed the exclusion of the teacher's statements, and the Supreme Court agreed to review it.
It fell to my buddy, John Martin of the Cuyahoga County PD's office, to defend the result, and his contention was a simple one: since the teachers had a mandatory duty to report child abuse, they were agents of law enforcement, and therefore the boy's statements were testimonial under Crawford v. Washington.
To say that John encountered resistance from the justices to this proposition is akin to noting that Custer ran into a few more Indians than he'd anticipated. So hot was the reception Martin received that he quickly retreated to arguing that the statements should have been excluded under EvidR 807. The topper, he told me, was when he came home that night, and was greeted at the door by his 9-year-old daughter, who had watched the argument on the court's cable station. "Daddy, you lost," she merrily announced.
So last week, the Supreme Court came down with the decision in State v. Clark, and guess what? By a 4-3 vote, they held that the statements of the teachers were excludable because the teachers, as mandatory reporters, were state agents under Crawford.
The case revolved around what constituted a testimonial statement, and here's what you need to know about that:
The objective witness test. The first time the court looked at the issue, in Crawford, it didn't really need to define it: at issue there was a four-page written statement the defendant's wife had given during a police interrogation, and everybody agreed that would be "testimonial" under any conceivable definition of the term. But Scalia threw out a general definition, which included whether an objective witness would believe the information he provided was going to be used in subsequent prosecution.
The primary purpose test. Four years later, the Court decided Davis v. Washington and Hammond v. Indiana, two domestic violence cases. In Davis, the Court held that Davis' 911 calls describing how he was using her as a punching bag were not testimonial; the primary purpose of the call was to summon help for an ongoing emergency, not to make a statement which would be used for prosecution. In Hammond, they held that the statements the wife made to the police when they arrived were testimonial; the officer had taken the wife into the kitchen, by which time any emergency had ended.
O'Connor's dissent in Clark (for Lanzinger and French) makes the assumption that both tests are still operative: the primary purpose test is used where law enforcement agents are involved, and the objective witness test is used for non-law enforcement personnel. I think this is wrong. There's no test for when the statement is made to somebody who's not a law enforcement agent. The underpinning of Crawford, as in all Scalia opinions, is history: the right of confrontation developed to prevent the English practice of the government compelling witnesses to make statements, and then introducing the statements at trial without the opportunity of cross-examination of the witness. Allowing a statement made to a family member or friend may raise issues under the hearsay rules, but is simply not the "evil against which the Amendment is chiefly directed."
But that gets to the big issue, the one where the two sides really differ, which is whether the teachers were government agents by virtue of the mandatory reporting requirement. O'Donnell, who authored the majority opinion, is a thorough writer; his dissent in another Confrontation Clause case a few years ago, State v. Arnold (discussed here), was studded with case citations of courts which had held contrary to the majority's conclusion. No such citations in support of his argument appear here. O'Connor fares little better, managing to come up with a handful, none terribly authoritative. It appears that there's little law in this area, and Ohio's law is now that statements made to someone with a mandatory reporting requirement (and that could include workers in a facility housing disabled or elderly people) are testimonial under Crawford.
O'Connor blisters the majority for what she believes will be the result of the decision, contending that it will make the children of Ohio less safe. O'Donnell shrugs this off as a "parade of horribles," and the effect of the decision will probably be somewhat limited. After all, if the child appears and testifies, that satisfies the confrontation requirement, and then anything he told anyone else can come in, too, as long as it's permitted by the evidentiary rules.
The role of a Supreme Court is to enunciate broad rules of law, but those can still be affected by the facts, and I think that happened here. The reason the child didn't appear at trial wasn't because of illness or fright; it was because the judge, and a very prosecution-oriented one at that, examined the child right before trial and determined he was incompetent to testify. That doesn't necessarily preclude use of earlier statements: the court has held that statements can be admitted under the excited utterance and medical diagnosis exceptions to the hearsay rule even if the declarant is subsequently determined to be incompetent. But the whole idea behind the hearsay rule is that certain statements have enough indicia of reliability to warrant admitting them, and I'm sorry, it's a tough sell to argue that a child can be determined to be incompetent -- that is, incapable of giving reliable testimony -- but that statements the child made seven months before that can be deemed reliable.