Dual Function?: Supreme Court Grants Cert in Confrontation Clause Case

Today, the Supreme Court granted cert in Ohio v. Clark, a case involving these 2 issues:

(1) Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.  

The Supreme Court’s opinion can be found here. The relevant facts of the case as they relate to the Confrontation Clause are as follows:

Darius Clark lived with his girlfriend, T.T., her three-year-old son, L.P., and her two-year-old daughter, A.T. On March 17, 2010, Clark dropped off L.P. at the William Patrick Day Head Start Center in Cleveland. While in the center’s lunchroom, one of L.P.’s preschool teachers, Ramona Whitley, observed that L.P.’s left eye appeared bloodshot and bloodstained. She asked him, “What happened?” and L.P. at first said nothing but then replied, “I fell.” Whitley asked, “How did you fall and hurt your face?” and L.P. answered, “I fell down.”

On arriving in the brighter light of the classroom, Whitley looked again at L.P. and saw “[r]ed marks, like whips of some sort” on L.P.’s face. Whitley, “in shock,” got the attention of the class’s lead teacher, Debra Jones.

When Jones saw L.P.’s eye, she said, “He needs to go to Ms. Cooper, my supervisor. After I looked at him, I said, you know, I’m going to take him to Ms. Cooper.” Jones then asked, “Who did this? What happened to you?” L.P. “seemed kind of bewildered. He said something like Dee, Dee.” Jones described L.P. as “Out. Staring out. And I was asking him—he almost looked uncertain, but he said, Dee.” Because L.P. had only attended the school for a short time, Jones could not be certain that the child understood her questions. Jones escorted L.P. to the school office. She testified that when the supervisor, Cooper, observed L.P.’s injuries, she said, “Whoever seen [sic] him first got to make the call.” As a result, Whitley called 696–KIDS and made a report of suspected child abuse.

In response, the Cuyahoga County Department of Child and Family Services (“CCDCFS”) sent a social worker to the school to question L.P. 

The prosecution admitted L.P.’s statements at trial without calling L.P., but the Court of Appeals reversed, concluding

that the trial court abused its discretion when it permitted Detective Remington, Bolog and Little (the social workers), and Whitley and Jones (the preschool teachers) to testify regarding L.P.’s statements, because they were testimonial and their admission violated the Confrontation Clause.

In agreeing with the Court of Appeals, the Supreme Court of Ohio cited to the dichotomy created by the Supreme Court in Davis v. Washington:

Statements are nontestimonial 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 the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Applying this dichotomy, the Ohio Supremes concluded that

The record reveals that no emergency existed either at the time Whitley observed L.P. or when Jones questioned him. His teachers were “shocked” by his injuries and immediately suspected child abuse; they separated L.P. from other students and in a formal question-and-answer format, they sought facts concerning past criminal activity to identify the person responsible, eliciting statements that “are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’”…

Thus, the primary purpose of that inquiry was not to extricate the child from an emergency situation or to obtain urgently needed medical attention, but rather was an information-seeking process to determine what had occurred in the past and who had perpetrated the abuse, establishing past events potentially relevant to later criminal prosecution. L.P.’s statements identifying Clark as responsible for his injuries are therefore testimonial and should have been excluded from evidence pursuant to the Confrontation Clause.

It seems pretty clear to me that there was no “ongoing emergency” in Clark, at least as that phrase is defined in the context of the Confrontation Clause. The tougher question is whether the court was correct that

At the time Jones questioned L.P., she acted as an agent of the state for purposes of law enforcement because at a minimum, teachers act in at least a dual capacity, fulfilling their obligations both as instructors and also as state agents to report suspected child abuse pursuant to R.C. 2151.421, which exposes them to liability if they fail to fulfill this mandatory duty.

It is clear that, in most cases, a teacher does not qualify as an agent for law enforcement. For example, the Supreme Court of California noted in People v. Lopez, 301 P.3d 1177 (Cal. 2013), that

Under the circumstances of this case, Mindy’s recording of the day’s events in her private diary and her disclosure of the incident to a trusted teacher, like other “informal statement[s] to a person not affiliated with law enforcement,” fall outside the scope of the confrontation clause, which is  concerned with “formal and solemn accusatory statements…in the context of criminal investigations or inquiries.”

But is a teacher like Jones more like a nurse performing rape kit that is directed toward collecting evidence that will be admissible at a subsequent trial? Because, if that’s the case, courts such as the Supreme Court of Kansas in State v. Miller, 264 P.3d 461 (Kan. 2011), have concluded that such nurses are agents of law enforcement.

(Hat tip to Derek Black for the link)

-CM