Thoughts on Ohio v. Clark: Predictable but with a Twist

The Supreme Court handed down its decision in Ohio v. Clark today, holding that there was no confrontation clause violation when the prosecution introduced a non-testifying child’s out-of-court statement identifying his abuser.  There is no real surprise here, unless you view consistency from the Court as surprising. 

The decision in Ohio v. Clark tracks my view of where the post-Crawford Court has settled.  As I argued in The Incredible Shrinking Confrontation Clause, 92 B.U. L. Rev. 1865, 1870 (2012):

[In the cases after Crawford,] a new majority of the Supreme Court seized the evolving jurisprudence . . . and, while claiming fidelity to Crawford, constricted the definition of “testimonial” statements to its minimalist core: statements “procured with a primary purpose of creating an out-of-court substitute for trial testimony.” . . . .  Together, Bryant and Davis work a dramatic curtailment of the post-Crawford confrontation right.  The current Supreme Court's conclusion that the Confrontation Clause addresses only “testimonial” statements, in concert with its pointed narrowing of the definition of “testimonial,” results in the elimination (not strengthening) of the constitutional restrictions on the bulk of admissible hearsay.  As Bryant itself declares, statements admitted under many commonly utilized hearsay exceptions - for example, excited utterances, present sense impressions, co-conspirator statements, statements for medical diagnosis or treatment - will rarely be testimonial and consequently are now completely unregulated by the Confrontation Clause.

This is precisely what happened in Ohio v. Clark.  The Court simply applied its shrinking definition of “testimonial.”  The child’s statement, admitted under Rule 807 (the residual hearsay exception), was not  “procured with a primary purpose of creating an out-of-court substitute for trial testimony.”  End of analysis.

I argued in The Incredible Shrinking Confrontation Clause that narrowly defining testimonial statements and excluding those that fall within the definition makes sense historically and logically.  However, the Court’s complete abandonment of unconfronted, non-testimonial hearsay is not justified.  In light of text, history and reason, constitutional regulation is required although the regulation can be much more permissive:

As the admission of nontestimonial statements does not strike as closely to the historical and textual core of the confrontation right, it need not be restricted as severely (that is, excluded absent confrontation). Rather, prior to admitting such evidence, courts can enforce a constitutional preference for live testimony - as they have in other contexts - by requiring the prosecution to demonstrate the out-of-court declarant's “unavailability.”  ICC at 1870.

The Supreme Court could have applied my unavailability requirement to the non-testimonial hearsay in Ohio v. Clark (and reached the same result) by noting that the 3-year old declarant, who had been deemed incompetent to testify by the trial court, was “unavailable.”  Cf. Haggins v. Warden, 715 F.2d 1050, 1055 (6th Cir. 1983) (“Since the declarant in this case was ruled incompetent to testify, she was clearly unavailable.”); Idaho v. Wright, 497 U.S. 805, 816 (1990) (“we assume without deciding that, to the extent the unavailability requirement applies in this case, the younger daughter was an unavailable witness within the meaning of the Confrontation Clause”).

But, of course, the Court did not apply my test.  Yet, the majority seems to ponder unavailability in its opinion, suggesting that either it agrees with my sentiment, thinks my test is unnecessary, or doesn’t really get how hearsay works.  To provide context, defendant-Clark complains that it was “fundamentally unfair” to permit the hearsay here because “Ohio law does not allow incompetent children to testify.”  (p. 11)  The Court responds:

“In any Confrontation Clause case, the individual who provided the out-of-court statement is not available as an in-court witness, but the testimony is admissible under an exception to the hearsay rules and is probative of the defendant’s guilt.  The fact that the witness is unavailable because of a different rule of evidence does not change our analysis.”  p.11

Whoah!   The notion that declarants are always “unavailable” in Confrontation Clause cases would be a surprise to the defendants in the Supreme Court’s other Confrontation Clause cases, including Davis v. Washington where in both consolidated cases, the hearsay declarants appear to have been “available” to testify.  As the Supreme Court explained: (Davis at 819-20):

“McCottry presumably could have testified as to whether Davis was her assailant, but she did not appear.” 

“Amy was subpoenaed, but she did not appear at his subsequent bench trial.”

In other cases, like Bullcoming v. New Mexico and Melendez-Diaz v. Massachusetts, the declarant-analysts were also similarly “available.”  They simply were not called due to a tactical decision by the prosecution.

The majority’s suggestion that Confrontation Clause issues arise only when the declarant is “not available as an in-court witness” could mean a couple of things. 

First, the majority could be using “not available” and “unavailable” here to mean “did not actually testify.”  That would be an awkward turn of phrase given the technical meaning in both hearsay and confrontation doctrine of the term “unavailable.”  It would also be a weak response to the defendant’s assertion that he was treated unfairly because the child was legally barred from testifying – which is different from the parties electing not to procure the witness.

Second, the majority could be secretly sending me a message that they have adopted my argument that unconfronted hearsay can only be admitted over a Confrontation Clause objection when the declarant is unavailable, with a caveat for hearsay that “would have been admissible in a criminal case at the time of the founding.”  P. 7; cf. Incredible Shrinking Confrontation Clause at 1904-10 (suggesting historical exception for business records, etc.)  If so, cool!

Third, it could just be an error – a mistaken assumption that Confrontation Clause cases only arise when the declarant is "unavailable."

It will be interesting to see what becomes of the Court’s statement.  I am hoping for option 2, but fearing option 3.