Crawford takes another beating
I was a little surprised when the 8th District reversed Darius Clark's conviction for child abuse. I was very surprised when the Ohio Supreme Court, in a 4-3 decision, affirmed the 8th District. I wasn't at all surprised when the United States Supreme unanimously reversed the Ohio courts last week in Ohio v. Clark.
Clark was convicted of several felonious assault counts for the brutal beating of two children, a 3-year-old boy and an 18-month-old girl. (To cement his status as a Really Bad Human Being, Clark had been left alone with the children because he was the pimp for their mother, whom he regularly sent to Washington, D.C., to work as a prostitute.) At issue in the case was the admissibility of statements made by the boy to two teachers, telling them that "Dee Dee" did it when they saw bruises on him and asked how he got them.
The child was found incompetent to testify, but the judge let the teachers' statements in. The 8th District, and the Ohio Supreme Court, determined that because the teachers were under a mandatory duty to report child abuse they were acting as agents of law enforcement, rendering any statements made by the child testimonial and thus barred by Crawford v. Washington.
Four takeaways from the SCOTUS decision:
● The evolution (elimination?) of the primary purpose test. Crawford used an "objective" test for determining whether a statement was testimonial: would a person objectively believe that his statement would be used at trial? Subsequently, the Court moved to the "primary purpose" test: was the statement made in response to police questioning about an ongoing emergency, or to establish facts for use at trial?
In Michigan v. Bryant, the Court expanded the primary purpose test, saying that that question had to be decided from the "totality of the circumstances." That continues apace in Clark, where we learn that one of those circumstances doesn't need to be that there is indeed an emergency; "whether an ongoing emergency exists is simply one factor" to be considered. Another is the "formality" of the inquiry: a police station interview is more likely to be found testimonial than on-the-scene questioning.
But the Court goes much further: the Confrontation Clause does not bar "every statement that satisfies the 'primary purpose' test"; it "does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding."
This is dicta, because the Court then easily concludes that the primary purpose of the teachers' questioning the child was "in the context of an ongoing emergency involving suspected child abuse." But it's worrisome dicta nonetheless; if Crawford is going to be unmoored from the primary purpose test, and we're left with vague interpretations of what would have been admissible 250 years ago, it's hard to see what future guidance Crawford will provide.
● "Government" v. "non-government" agents. One of the lingering questions in Crawford jurisprudence, and one the Court has repeatedly ducked, is whether statements to anyone other than police officers can be testimonial. The Court ducks it again, sort of, declining "to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment." But it comes close:
Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers. It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police.
I think that statements made to, say, a social worker charged with investigating child abuse could still fall within Crawford, but I'm not nearly as sure about that as I was two weeks ago. And then there's this:
● Can statements by a child ever be regarded as testimonial? The Court certainly doesn't duck that one: "Statements by very young children will rarely, if ever, implicate the Confrontation Clause." That's because
Few preschool students understand the details of our criminal justice system. Rather, research on children's understanding of the legal system finds that young children have little understanding of prosecution. Thus, it is extremely unlikely that a 3-year-old child in L. P.'s position would intend his statements to be a substitute for trial testimony.
It's hard to overstate the significance of this. One of the issues the Court has also skirted has been whether the "primary purpose" of the questioning is to be viewed from the perspective of the questioner or the respondent. Here, the Court looks at it solely from the viewpoint of the child, and since the child doesn't have any concept of what a trial means, any statements he makes can't be for purposes of preserving facts for later use at trial. Combined with the Court's earlier holding that an "emergency" is not a sine qua non for avoiding the testimonial tag, this means that any statement by a very young child, even to a police officer or someone else intending to ferret out facts for prosecution, comes in. I'm not sure how young you have to be to qualify as a "very young" child, but I wouldn't be surprised if courts used the age for presumption of incompetency -- under ten -- as the cutoff.
● Whither Crawford? Maybe that should be "wither Crawford." I've written before that the Court has spent the eleven years since Crawford in a hurried retreat from it; numerous justices, like Alito, have expressed open hostility to it. (And since the Chief Justice chose Alito to write the opinion -- that's a call the Chief gets to make, unless he's in the minority, that says something about Roberts' attitude toward Crawford as well.) Scalia, Crawford's author, picks up on that, concurring only in judgment, taking issue with the dicta on the primary purpose test, and castigating Alito for secretly pining for the days of Ohio v. Roberts, where admissibility of hearsay was decided by whether it was reliable. He closes by saying that "there are evidently not the votes to return to that halcyon era for prosecutors."