Tuesday, November 12, 2013
Professor Marianna Brown Bettman has another terrific post up on her blog, Legally Speaking Ohio. This one concerns a Confrontation Clause case recently resolved by the Supreme Court of Ohio: State v. Clark. As Professor Bettman notes,
In a 4-3 decision written by Justice O’Donnell, for himself and Justices Pfeifer, Kennedy and O’Neill, the Court held that a child’s statement to his teachers about physical abuse constitutes testimonial evidence barred by the Confrontation Clause when the child has been found incompetent to testify. Chief Justice O’Connor wrote a very heated dissent, for herself and Justices Lanzinger and French.
Professor Bettman points out that the dissent might be the most interesting part of the case and not just because Justice O'Connor practically begs the United States Supreme to grant cert. What's even more interesting is the why. Here's the introduction to Justice O'Connor dissenting opinion:
The majority decision creates confusion in our case law, eviscerates Evid.R. 807, and threatens the safety of our children. Not surprisingly, it is also wrong as a matter of federal constitutional law. I dissent.
A teacher is not an agent of law enforcement for the purpose of determining whether a statement is testimonial under the Confrontation Clause merely because that teacher has a statutory duty to report child abuse. On the record before us, there is no basis from which to conclude that the injured child’s teachers acted on behalf of law enforcement. Therefore, there is no support in the law or on these facts for the conclusion that the statements made to the teachers by L.P., the injured child, or similar statements made to teachers in any Ohio schoolroom, should be scrutinized under a test that is otherwise applicable only when the interviewer is an agent of law enforcement. See Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
Instead, statements to teachers should be scrutinized under the objective-witness test, which is applicable when the questioner is not an agent of law enforcement. In this appeal, the teachers questioned L.P. about his injuries to protect L.P. and possibly other students from additional injury, and to maintain a secure and orderly classroom in which learning could take place. No objective witness could reasonably believe that the interviews served a prosecutorial purpose rather than a protective one. Thus, under the law of this court and the United States Supreme Court, I would hold that the classroom statements made by this small child, L.P., to his teachers are nontestimonial and thus are not excluded by the Confrontation Clause.
This is certainly a foundational issue that the U.S. Supreme Court should address and soon. We'll have to wait and see whether it does so or whether Justice O'Connor's plea falls on deaf ears.