The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant the right to confront and cross-examine adverse witnesses against him. The amendment is made applicable to the States by virtue of the Fourteen Amendment.


However, there are some exceptions to this valuable right.


In 1980, the Supreme Court in Roberts v. Ohio held that the Sixth Amendment permits out-of-court statements by an unavailable witness, so long as the statements bear “adequate ‘indicia of reliability.’” In reaching this conclusion, the Roberts court said such an indicia is present if “the evidence falls within a firmly rooted hearsay exception” or satisfies “particularized guarantees of trustworthiness.”


The Roberts decision produced considerable confusion, as well as controversy. In 1990, the Supreme Court again entered the Confrontation Clause waters with Maryland v. Craig which reaffirmed the Roberts’ premise that a defendant’s right to face-to-face confrontation must give way when “necessary to further an important public policy [if] the reliability of the testimony is otherwise assured.”


In 2004, with Crawford v. Washington, the Supreme Court was again called upon to establish some rules of engagement in the Confrontation Clause arena. The Crawford court defined “witnesses” as those who “bear testimony” and defined “testimony” as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” The court then tried to clarify the difference between “testimonial” and “non-testimonial” out-of-court statements. The introduction of testimonial statements by a non-testifying witness, the court said, violates the Sixth Amendment, unless it can be shown that the witness is “unavailable to testify, and the defendant had a prior opportunity for cross-examination.”


The Supreme Court soon realized, however, that the Crawford decision did not offer an “exhaustive” definition of testimonial statements, thereby creating the need for further clarification. Two cases in 2006, Davis v. Washington and Hammon v. Indiana, sought to provide that clarification. Both cases involved statements made to law enforcement by domestic violence victims. Davis dealt with statements made by a victim to a 911 emergency operator during and shortly after her attack while Hammon dealt with statements made by the victim to law enforcement after she had been separated from her abusive husband. The court held that the statements in Hammon were testimonial and those made in Davis were not.


The Hammon court offered the preferred clarification by establishing what is now known as the “primary purpose” test.


“Statements are nontestimonial,” the court explained, “when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”


Again, the Supreme Court did not get it right. The Davis and Hammon courts said their ruling only applied to statements made to law enforcement, not to similar statements made to non-law enforcement individuals.


In 2011, the Supreme Court in Michigan v. Bryant elected to “expound” on the primary purpose test by saying the test’s inquiry must consider “all of the relevant circumstances.” The Bryant court harken back to Davis by saying that when “the primary purpose of an interrogation is to respond to an ‘ongoing emergency, its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause.’”


But the Bryant court only managed to further cloud the parameters of the Confrontation Clause by pointing out that the ongoing emergency criteria is not “the touchstone of the testimonial inquiry;” that “whether an ongoing emergency exists is simply one factor … that informs the ultimate inquiry regarding the ‘primary purpose’ of the interrogation.”


And as if this was not confusing enough, the Bryant court said another factor to be considered in the primary purpose test inquiry is “the informality of the situation and the interrogation.” The court said that in determining whether a statement is testimonial, “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.” The court concluded that after objectively viewing the totality of the circumstances, the question is whether the “primary purpose” of a conversation is to create “an out-of-court substitute for trial testimony.”


Against this backdrop, the Bryant court decided that the dying statements of a victim about his assailant are non-testimonial because they were made to assist a law enforcement emergency in capturing an armed suspect, not to establish evidence for the prosecution.

Still, the Supreme Court refused to expand the “primary purpose test” to statements made to individuals other than law enforcement in an ongoing emergency situation.


Historically, under the aforementioned and other Supreme Court precedents, the admissibility of such statements rested with state and federal rules of evidence, not the Confrontation Clause. But this term the Supreme Court in Ohio v. Clark changed the constitutional landscape with this finding:


“But that does not mean that the Confrontation Clause bars every statement that satisfies ‘primary purpose’ test. We have recognized that the Confrontation Clause 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 … Thus, the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause.”


With that, the Supreme Court found that statements made to a preschool teacher, not a law enforcement officer, in a child abuse context were not barred by the Confrontation Clause because the “statements clearly were not made with the primary purpose of creating evidence for Clark’s prosecution.”


We strongly disagree with the Court.


A preschool teacher noticed the child had a bloodshot eye. She asked him what happened to which he did not reply. She pressed the child who then told the teacher he “fell.” Later, in the classroom, the teacher noticed red marks, “like whips of some sort,” on the child’s face. She then notified the “lead teacher,” who said the child seemed “bewildered” but she continued to question him anyway. The child then indicated the red marks were caused by his stepfather. The lead teacher took the child to her “supervisor,” who raised the child’s shirt and saw more injuries. The supervisor called a “child abuse hotline” so proper authorities could be alerted about “the suspected abuse.”


A social worker later visited the home of the child where the stepfather denied inflicting any abuse. The social worker took the child to a hospital where an examination determined his injuries were caused by physical abuse. The stepfather was indicted on five counts of felonious assault and four other related domestic violence counts. At the trial, the State introduced the statements the child made to the teachers “as evidence” of the stepfather’s guilt.


After a hearing, the trial court determined that the child was unavailable to testify, because of incompetency, and allowed the statements under an Ohio rule of evidence that allows admissibility of hearsay statements of child abuse victims.


The Supreme Court elected to reverse a decision by the Ohio Supreme Court which had reversed the stepfather’s conviction on the premise that the primary purpose of the statements was to create evidence of child abuse against the stepfather to be used in his prosecution by the State.


With the Clark decision, the Supreme Court has opened the door to the use of virtually every statement a child may make about physical or sexual abuse to non-law enforcement individuals. The Ohio Supreme Court sought to avoid this. It’s well-reasoned decision that because Ohio has a “mandatory reporting” law that requires certain professionals, including preschool teachers, to report suspected child abuse to “government authorities,” they are acting as agents of the state” trying to establish evidence “concerning past criminal activity to identify the person responsible” and that statements made in this context “are functionally identical to live, in court testimony, doing what a witness does on direct examination” by the prosecution.


We agree with the Ohio Supreme Court.


We have argued in the past that rules and statutes that are intended to make it easier for prosecutors to prove their case, such as those that allow hearsay statements of children to be admissible, contribute to innocent people being convicted of crimes and sent to prison. The Clark decision by the U.S. Supreme court, we fear, will allow prosecutors to continue to do just that, send innocent people to prison. There is no doubt that individuals will be found guilty because of statements made by children to professionals, like preschool teachers, will be used to bolster the state’s case without the ability to cross-examine the child witness in the presence of the jury.