Teacher, Teacher: Professor Marianna Brown Bettman Posts About Confrontation Clause Case From Ohio
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. Notsurprisingly, 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 ofdetermining whether a statement is testimonial under the Confrontation Clausemerely because that teacher has a statutory duty to report child abuse. On therecord before us, there is no basis from which to conclude that the injured child’steachers acted on behalf of law enforcement. Therefore, there is no support in thelaw or on these facts for the conclusion that the statements made to the teachersby L.P., the injured child, or similar statements made to teachers in any Ohioschoolroom, should be scrutinized under a test that is otherwise applicable onlywhen 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 theobjective-witness test, which is applicable when the questioner is not an agent oflaw enforcement. In this appeal, the teachers questioned L.P. about his injuries toprotect L.P. and possibly other students from additional injury, and to maintain asecure and orderly classroom in which learning could take place. No objectivewitness could reasonably believe that the interviews served a prosecutorialpurpose rather than a protective one. Thus, under the law of this court and theUnited States Supreme Court, I would hold that the classroom statements made bythis small child, L.P., to his teachers are nontestimonial and thus are not excludedby 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.
-CM