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The Supreme Court officially begins its term today, but the term unofficially began a week ago Friday with "the long conference."  Yes, I know, it sounds like something out of The Last of the Mohicans (I'm trying to suppress the mental image of the justices sitting on the ground, passing a peace pipe around while Scalia mumbles something about "palefaces with talking sticks").  It probably is a long conference, because it's the session where the Group of Nine gets together to decide what to do with the petitions for certiorari which have piled up while they've been getting bitchin' tans by basking in the summer sun.  Plenty of work to do, and sure enough, the Court added eleven new cases to its docket.

Including Ohio v. Clark, which could prove very interesting.

Clark involved a nasty case of physical child abuse, with multiple witnesses testifying as to the numerous bruises and burn marks on a 4-year-old child.  The 4-year-old child wasn't one of those witnesses, though; the judge had found him incompetent to testify.  Clark was convicted and sent off to prison for 28 years, but the 8th District reversed, on the basis that the child's statements to several of the witnesses - a police officer, a social worker, and two teachers - were testimonial under Crawford v. Washington.

The police officer and the social worker were easy calls, but the teachers were another matter:  the court decided they were "government agents" within the meaning of Crawford, because they had a mandatory duty under statute to report child abuse.  The Ohio Supreme Court took the case in, and after watching my buddy John Martin get smacked around in oral argument like a red-headed stepchild, I figured it was a sure bet for reversal.  It would have been, if Chief Justice O'Connor, who's biting dissent made some of Scalia's look like they were penned by Mr. Rogers, been able to coax one more justice to her side.  Instead, the court affirmed by a 4-3 vote.

SCOTUS granted cert on two issues:

(1) Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as "testimonial" statements subject to the Confrontation Clause.

The two are intertwined; what the State's really seeking is clarification about whether Crawford applies to statements made to non-government agents.  I think there's a decent argument that it doesn't, given the historical underpinnings that Scalia used in the concept of "testimonial statements."  After all, the "chief evil" that the Confrontation Clause was designed to prevent, according to Scalia, was statements made to the King's agents, who would then testify about them at trial without the opportunity of the defendant to cross-examine the person who actually made the statement.  And then there's this little nugget of dicta from the Supreme Court's 2008 decision in Giles v. California:

... only testimonial statements are excluded by the Confrontation Clause. Statements to friends and neighbors about abuse and intimidation, and statements to physicians in the course of receiving treatment would be excluded, if at all, only by hearsay rules ...

Of course, this begs the question of whether a statute imposing a mandatory reporting duty on a teacher (or doctor or nurse) to report abuse makes them a government agent.  There's not a lot of case law on that one, but what there is probably doesn't bode well for Clark.  Still, it's not all gloom and doom for him; regardless of how the Potomac Nine come down on the issue, Clark still gets a new trial, because the 8th District held that certain statements made by the boy to relatives shouldn't have come in under EvidR 807.

The Supreme Court granted cert in another criminal case, Rodriguez v. US.  A cop had stopped Rodriguez for a traffic violation, then, after giving him a written warning, asked for consent to have a drug dog walk around the vehicle.  Rodriguez refused, so the cop called for backup.  The dog sniff was conducted about seven or eight minutes after the ticket was issued, but the 8th Circuit held that wasn't an "unreasonable" delay. 

That's the second 4th Amendment case on the Court's docket so far.  The first was Hein v. North Carolina, involving the question of whether a mistake of law by a police officer - believing that something's a traffic violation when it isn't - voids a stop.  That's the first case up for argument today, and we'll talk about that later in the week.  


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