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Another go on Crawford

On the surface, Ohio v. Clark presents a simple question.  A three and a half year old son came to school one day with some serious bruises.  The teacher asked who did it.  The boy said that Dee -- Darius Clark, his mother's boyfriend -- did it.  At trial, the teacher's statements, along with the boy's statements to various family members, the social worker, and the police, came in.  The boy's testimony did not; the judge ruled he was incompetent to testify.  Clark was convicted and sentenced to thirty years in prison.

The 8th District reversed, finding that the statements to the family members didn't qualify under EvidR 807, and that the statements to the others were "testimonial" under Crawford v. Washington.  The statements to the police and social worker were easy calls there, but the court also held that teachers, by virtue of their statutory duty to report abuse, were "government agents," and thus statements to them were testimonial as well.  The Ohio Supreme Court affirmed, and the Potomac Nine took it in, and heard argument on the case on Monday, on the simple question of whether the teachers should have been regarded as "government agents."

Of course, it wasn't that simple.  My takeaways, in order of importance:

Are statements made to non-government agents covered by CrawfordThat was one of the questions that the Court's never directly addressed, although it hinted in one case that statements to neighbors or family members would be covered, "if it all," by the State's hearsay rules.  The reason for that is the historical underpinnings of the Confrontation Clause, as explained in Crawford:  the purpose was to prevent the English practice of the King's agents taking statements from witnesses and then testifying to them at trial, preventing the defendant from confronting the person who actually made the statement.

But that was barely mentioned in oral argument.  One instance came from Scalia, in which he got the State's attorney, Cuyahoga County assistant prosecutor Matt Meyer, to acknowledge that answers to questions asked in a civil deposition could fall under Crawford, even though the questioner was a private person.  Another was Sotomayor's statement that "whether it's given to a private individual or a police officer is irrelevant.  The question is, was it intended to substitute for testimony to be used later?"

That's not to suggest that the ultimate opinion isn't going to address that issue; both Meyer and the Assistant Solicitor General harped on that, and it's an easy doctrinal line to draw.  I'm not sure it's that important to the case, though, because it avoids the central question of how the mandatory reporting requirement affects the status of the teachers.

So if the private/government agent distinction isn't relevant, what is?  Rather than draw the distinction the State wanted, the justices seemed more inclined to analyze whether the statement was testimonial under Crawford and its progeny.  The formulation in Crawford for what constituted a "testimonial statement" was vague:  a statement which the declarant would objectively believe would be used in later prosecution.  Obviously, no three-year old is going to understand that.

But the formulation in Crawford was vague because it could be -- the statement there, a written four-page statement produced as the result of police interrogation in the stationhouse -- was testimonial under any conceivable definition.  Later cases, though, involving 911 calls and a dying victim's responses to police questions as to who had shot him, developed the "primary purpose" test:  whether the primary purpose of interrogation was to respond to an ongoing emergency (non-testimonial) or to gather facts for investigation and prosecution (testimonial). 

That's to be determined by the "totality of the circumstances":   the intent of the declarant, the intent of the questioner, and the circumstances of the situation.  As in so many applications of the "totality of the circumstances" test, it's more helpful in theory than in application.  And the biggest problem is that the test a binary one:  either the questions and answers are intended to respond to the emergency, or to investigate the crime.  As Alito and Kennedy pointed out, that's not how it works in real life:  what happens when fifty percent is for safety and fifty percent for investigation?  That's arguably true here:  the whole purpose of the mandatory reporting statutes is to ensure that the authorities are brought into the picture, not only to protect the child but to prosecute the perpetrator. 

What's more, ignoring the investigative aspect ignores the realities of how that can be abused.  Clark's attorney pointed to the manual issued by the Texas attorney general, instructing teachers in such situations to get all the information they can from the child, on the basis that statements made to teachers won't be excluded, while statements made to social workers and police will.

So what's going to happen?  You're really sifting the goat entrails to figure how this is going to come down.  Several of the justices appeared to be discomfited by the prospect of a man spending thirty years in prison based solely on the statements of a child who was never cross-examined and who was found incompetent to boot.  That's mitigated by the fact that whatever happens, Clark's going to get a new trial:  the reversal because of admission of the testimony of the police, social worker, and family members will stand, regardless of what the Court does with the testimony of the teachers.

One thing that's probably not going to happen is the demise of Crawford.  As I've mentioned before, while Crawford was a 9-0 decision, several justices have become increasingly uneasy with its application.  Breyer and Kennedy are almost sure votes to overrule it.  Breyer made some noises about it, but it looks like Crawford will live for another day.  Whether Clark will clarify its application is another matter.

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