The U.S. Supreme Court in Ohio v. Clark decided on June 18, 2015, addressed admissibility of the non-testimonial statements in the context of child abuse investigation.

Clark was trusted with care of his two children L.P., age 3 and A.T. eighteen months while their mother was engaged in prostitution at the direction of Clark. L.P. was observed at school with a black eye, belt marks on his back and stomach, and bruises all over his body. A.T. after further investigation had two black eyes, a swollen hand, and a large burn on her cheek, and two pigtails had been ripped out at the roots of her hair.

Clark was convicted of several criminal counts at the trial based on the statement of L.P. to his teacher inquiring as to how the child had received the injuries.

The Supreme Court in delivering the opinion carefully reviewed all current cases decided and relating to out of court testimonial v. non-testimonial statements.

The Confrontation Clause prohibits the introduction of “testimonial” statements by a non-testifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” However, a statement qualifies as testimonial if the primary purpose of the conversation was to create an out-of-court substitute for trial testimony.

The Court has generally and firmly held that statements are non-testimonial even when made in the course of police interrogation when the primary purpose of the interrogation has been to enable police to assist or to address an ongoing emergency.

Statements are testimonial on the other hand when the circumstances dispositively show that there is no ongoing emergency, that the primary purpose of the interrogation is to elicit evidence used in the ensuing criminal prosecution.

Applying the legal precedent to the facts of the case, the Court held that the child’s statements were not testimonial in nature. The statements were not made with the primary purpose of creating or compiling evidence for Clark’s prosecution. There were made by a child to a teacher concerned over visible and extensive injuries the child exhibited. The dialog was informal and spontaneous.

Moreover, statements by young children rarely invoked the Sixth Amendment confrontation clause, they lack the aforethought, intent or purpose to be testimonial or to be directed or used at a criminal prosecution.

Also the Court was cognizant that the statement was between a school teacher and a young student and as a public policy such discourse although not always protected does not rise to a level to violate the confrontation clause.

The Court was also not persuaded that because teachers in Ohio are mandatory reporters that teachers are de facto state agents and thus a higher scrutiny applies. Here clearly the statement was elicited to assist and assess condition of a child visibly injured.

Specifically, the Court elaborated: “L.P.’s statements occurred in the context of an ongoing emergency involving suspected child abuse. When L.P.’s teachers noticed his injuries, they rightly became worried that the 3-year-old was the victim of serious violence. Because the teachers needed to know whether it was safe to release L.P. to his guardian at the end of the day, they needed to determine who might be abusing the child. Thus, the immediate concern was to protect a vulnerable child who needed help.”

The mitigating factors here were the age of the child, the severity of the injuries, the circumstances in which the statements were made, and although not expressed in the opinion the home environment of the children.

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