Argument preview: The Confrontation Clause, once more

At 11 a.m. Monday, the Supreme Court will hold one hour of oral argument to continue to explore the constitutional right of an accused person to confront at trial the witnesses for the prosecution. Arguing for the state in Ohio v. Clark will be Matthew E. Meyer of Cleveland, an assistant prosecuting attorney, with twenty minutes of time. Ilana Eisenstein, an assistant to the U.S. Solicitor General, will have ten minutes to speak for the federal government as an amicus supporting the state. The accused individual in the case will be represented by Stanford law professor Jeffrey L. Fisher, with thirty minutes of time.

Background

For the past eleven years, the Supreme Court has been defining — one case at a case — how far the Sixth Amendment goes to protect a right of the accused person on trial to confront witnesses who will give evidence to support a guilty verdict. The process generally has expanded that right, by limiting the use of evidence coming from those who, for some reason, could not show up at the trial, when prosecutors want to use some of what those witnesses had said out of court.

Next week, the Court confronts the difficult question about what to do when the evidence at trial would be provided by school teachers and social workers who interviewed a three-and-a-half-year-old boy about alleged abuse, with the boy himself not appearing at the trial.

Courts and lawyers on both sides of criminal trials have been reluctant, at least as a routine practice, to call children to the witness stand when they are crime victims or have seen a crime being committed. Aside from sensitivity for the child’s discomfort about being in the witness chair, there is frequently concern about whether the child is mature enough to give reliable testimony, uninfluenced by those who might try to shape what they say and unaffected by the pressure of the trial setting. Influence might well be a factor in a case where a child was allegedly abused by a parent, making the youngster reluctant to say what parents may have done to him.

The Court, however, has not ruled out entirely the summoning of children as witnesses, and has approved ways to protect them, such as allowing them to be called but to appear behind a screen. A number of states also have been experimenting with using children as witnesses in settings that make them more uncomfortable, perhaps with a comforting parent, or a comforting toy or blanket, or with a trained counselor away from the courthouse.

The new case before the Court, however, comes from Ohio, which generally bars the testimony of any child witness under ten years old, unless they can be shown to understand what is going on in a trial and can tell the difference between truth and lies. In this case, the judge enforced that general ban for the boy, but allowed prosecutors to use at trial what the boy had said to teachers, social workers, a police officer, his grandmother, and a great-aunt.

The case began in Cleveland in March 2010, when the boy — identified in court papers only by his initials, “L.P.” — was living with his mother. When the mother made a trip to Washington, D.C., her boyfriend — Darius Clark — was left with the children. When Clark dropped the boy off at a day-care center, a teacher noticed red marks on his face, was not talkative, and refused to eat. Asked about his condition, he said he had fallen.

However, when another teacher talked to the boy, asking him who had hurt him, he replied: “Dee.” That turned out to be a name by which Clark was known to his girlfriend’s children. When a supervisor found bruises and other injuries on the boy’s body, they called an emergency telephone line for reporting child abuse.

A social worker interviewed the boy, who spoke again about abuse by “Dee.” Clark arrived at the center, and took the boy home, denying that he had any role in harming the boy. On further investigation, the boy’s younger sister was found to have two black eyes and a large burn on her cheek.

Ultimately, the investigation led to Clark being charged with assault on the boy, assault on the girl, endangering children, and engaging in domestic violence. (The children’s mother, identified as “Taheim T.,” was charged with similar crimes, pleaded guilty, and was sentenced to eight years in prison.)

Clark was tried, with the judge allowing, over the defense lawyer’s objection, the use of testimony from the seven people who had talked with the boy and heard of his alleged abuse by Clark. He was convicted and sentenced to twenty-eight years in prison.

An Ohio middle-level appeals court ruled that the testimony of five of those individuals should not have been admitted at the trial, finding a violation of the Confrontation Clause. The Ohio Supreme Court, splitting four to three, ruled that the two day-care teachers should be treated as law enforcement agents because of a duty imposed by state law to report information about child abuse or neglect. The boy’s statements to them qualify as a form of testimony, the state tribunal concluded, and thus they should not have been admitted at the trial, especially since there was no ongoing emergency that required their testimony. It ordered a new trial.

The state took the case on to the Supreme Court, with the support of twenty-nine other states. The petition raised two questions: whether an individual’s duty to report suspected child abuse made that person a law enforcement agent under the Confrontation Clause, and whether a child’s out-of-court statements qualified as “testimonial” evidence under that clause. The appeal noted that all fifty states have laws that impose a legal duty on private individuals to report to police when they learn, in the course of their normal duties, of suspected child abuse. Ohio law makes that a mandatory duty for school teachers and those who work at day-care centers.

The Justices granted review of the state’s appeal on October 2.

Briefs on the merits

In its brief on the merits, Ohio urged the Court to adopt a flat rule that the Confrontation Clause simply does not apply to statements “meant for private parties without any police direction.”

The brief said that the Court, in rulings on the Clause in recent years, had left open the question whether and when statements made to someone other than a law enforcement officer would be treated as “testimonial” and thus covered by the Court’s ruling going back to the first in the series, Crawford v. Washington, in 2004. That open question is presented clearly in this case, the state said.

If the Court does not go so far as the state would prefer, it should at least rule, the brief argued, that the statements originating with a child “found too young to testify” should not be treated as “testimonial” under the Court’s precedents. Instead, a child’s statements should be judged, for possible use at a trial, on whether that would violate rules against the use of hearsay or would violate the due-process rights of the accused. Rules about evidence, not the Constitution, should govern this issue, the brief said.

The primary purpose of the Confrontation Clause, according to the state’s filing, is “to prevent distinct government abuses.” That purpose is not served, it argued, by treating teachers as if they were “police agents.”

The brief on the merits filed by Darius Clark’s lawyers countered that the Confrontation Clause applies, under the Court’s precedents, to statements made to police that are used to show criminal conduct. It was clear in this case, the brief said, that the prosecution used the teachers’ accounts of what L.P. had said to them about use as evidence of a crime. What the boy said to them, the Clark brief added, “was a perfect substitute for trial testimony” that the boy would have given if called to the stand, so the teachers’ recounting should not have been allowed during the trial.

“Neither the fact that the questioners here were teachers nor that the accuser was a child renders the primary purpose test inapplicable,” Clark’s lawyers contended. “Teachers can undertake to elicit accusations identifying perpetrators of crime, thus generating statements that juries would perceive as substitute for live testimony.”

The brief went on to argue that the constitutional violation in this case “is all the more intolerable because L.P.’s unavailability for cross-examination was a problem, entirely of the state’s own making” — because of its law presuming that all children younger then ten are incompetent to testify in any manner. “There is no need for any such rule,” the brief contended.

The federal government entered the case, saying the issues at stake would have implications for conduct of federal criminal trials, especially in Washington, D.C., in the federal territories, and in the U.S. military justice system, where federal prosecutors pursue many cases involving child abuse.

Siding with the state’s challenge to its state supreme court ruling, the government brief on the merits argued that the state court operated on two “erroneous propositions”: first, that the state’s mandatory reporting duty transformed teachers into law enforcement agents; and, second, that the teachers primarily engaged in questioning of the boy to get evidence of a crime. Both propositions are wrong, the brief said, because, if all the circumstances of this case were taken into account, it is clear that the teachers were trying to deal with “pressing and immediate health and welfare concerns, not to provide evidence for purposes of prosecution.”

Ohio’s support from other states rises to forty-two plus Washington, D.C., among the amici filings. The state also is aided by children’s protective organizations, prosecuting attorneys, education organizations and teachers’ groups, and law-and-order advocacy organizations.

Darius Clark’s side of the case is supported by organizations of criminal defense lawyers, legal academics, the Innocence Network, and advocates for families.

Among the more challenging amicus briefs on Clark’s side is one by Harvard law professor Charles R. Nesson, joined by criminal appeals lawyer Fern L. Nesson, urging the Supreme Court to cast aside its jurisprudence going back to the Crawford decision, arguing that it gets wrong the core of the Confrontation Clause — that is, the Clause’s stress on the value of the chance to confront live witnesses, face to face in the courtroom. What the Court has been doing, this brief contended, is to turn the Clause into a constitutional vehicle for prosecutors to bring into trials evidence of what someone said outside the court. It puts too much focus, this filing contended, on whether statements have been subjected to cross-examination, and thus undercuts the need for testimony to be live and subject to direct challenge. Out-of-court evidence can be handled under hearsay rules, this filing asserted.

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