Thanks to the San Francisco Daily Journal for soliciting, publishing, and permitting me to share this piece with Huff Post readers.
On October 2 the Supreme Court agreed to review a decision from Ohio which could help make abused children safer, or not. The case raises the question of whether children's statements to adults reporting their own abuse can be heard in court.
In this case, a 3 year old boy ("L.P") was asked at daycare where he had received his visible bruises. On the day in question the teacher (Ms. Whitley) noticed that the child'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." When they reached the brighter lights of the classroom Ms. Whitley also noticed red marks "like whips" on L.P.'s face. When the class's lead teacher asked "who did this to you?" the child, while "staring out" said "Dee, Dee." Not knowing whether "Dee" was a child or an adult, the teacher asked "Is Dee big or little?" L.P. replied "Dee is big." "Dee" was the name of his mother's boyfriend (Darius Clark), who lived with L.P., L.P.'s 22 month old sister, and their mother.
The teachers called child protection services. A social worker arrived at the school and questioned the child again. However, Mr. Clark arrived and left with the child before they could stop him. The next day a social worker brought both children to the hospital. A physician determined that L.P. had bruising in various stages of development and abrasions consistent with having been struck by a linear object and that A.T. had bruising, burn marks, a swollen hand, and a pattern of sores at her hairline. The physician suspected child abuse and estimated that the injuries occurred between February 28 and March 18, 2010.
Mr. Clark was indicted for multiple felonious assaults against both children, child endangerment, and "domestic violence." At trial, the trial court ruled that the three year old was not competent to testify. However, it ruled that the child's reports to the teachers naming his abuser were admissible. (It excluded the testimony of the police officers and social workers about the child's statements.) This is the legal question now before the Supreme Court.
The over-arching constitutional right at stake is a criminal defendant's "right to confront the witnesses against him" under the Sixth Amendment. Until 2004, the Supreme Court had held that the confrontation clause posed no obstacle to out of court statements if they bore "adequate 'indicia of reliability,' a standard which could be met by meeting the state's law of hearsay exceptions. Ohio v. Roberts, 448 U.S. 56 (1980). However, in 2004 the Court abandoned the Roberts rule. Instead, the Court in Crawford v. Washington, 124 S Ct 1354, emphasized the need to interpret the clause as it was understood at the time of the Framers. The archetypal source of the confrontation right, the Court said, was the early English case in which Sir Walter Raleigh was sentenced to death for treason, after demanding "[c]all my accuser before my face . . ." Despite his demand, Raleigh was convicted based on the "testimony" by his alleged accomplice in a letter and an out of court examination. The Supreme Court, led by Justice Scalia, thus abandoned the Roberts rule. The Court ruled that statements that are "testimonial," as in that case, given to a police investigator, are not admissible if the defendant has no opportunity to confront and cross-examine the accuser.
In a subsequent case, Davis v Washington, the Court clarified the new standard for confrontation rights, holding that:
Statements are non-testimonial 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.
The "primary purpose" test has been amplified and developed in subsequent cases, all of which have involved either police officers or other government officials as interrogators or reporters.
Ohio v. Clark thus is the first case both to address children's statements, and statements made to non-government personnel. First, because the primary purpose test requires an "objective" analysis of whether the circumstances indicated that the statements were made for "testimonial" reasons, or to seek help in an "ongoing emergency," children's statements are necessarily a different kettle of fish from adults' statements. Many courts have wrestled with whether the intent of the speaker, the listener, or both must be factored into the analysis. But unlike with adults, we cannot infer children's awareness or intent to report to law enforcement, so the objective determination of "purpose" must be made without that input.
Second, the primary purpose test was designed for statements to police or law enforcement. Until now, no state court has previously held that the mere fact that a questioner is a mandatory reporter makes a child's report of abuse "testimonial." Rather, the fact that most such mandatory reporters are in a "helping" position vis a vis the child, has led a majority of state courts to find that the "primary purpose" of the exchange is equally or more likely to be protection. Courts that have gone the other way have looked at how specifically coordinated the mandatory reporter's activities are with the police, and other factors, to find that such reports were testimonial.
The Ohio Supreme Court held that, since the teachers are mandated by state law to report to the State any suspected child abuse, they essentially are acting as law enforcement agents of the State. Because the injuries were "past," there was purportedly no "ongoing emergency," and the child's statements were purely identifying the perpetrator, these statements were necessarily "testimonial," made to an agent of the State for purposes of the very prosecution which followed, and were thus inadmissible.
In opposition, the State points out that even the Ohio Supreme Court majority acknowledges that the "primary purpose of reporting is to facilitate the protection of abused and neglected children rather than to punish those who maltreat them." Echoing the dissenter, who stated that, if the majority's ruling is upheld, "children in Ohio will go unprotected" the State emphasizes how important it is to be capable of prosecuting child abuse, and how essential such reports are to such prosecutions.
Obviously, this case pits the power of the State, exercised on behalf of vulnerable children, against individual defendants facing loss of liberty. Many will lean to one or the other side based purely on which seems more in need of protection. However, as one who filed an amicus brief in support of certiorari, and will file another on the merits soon, I think it is important to expand the lens in deciding this case.
First, the "ongoing emergency" standard needs to be construed in a more realistic manner. Just because the child was not being whisked to the hospital that day does not mean that every night he spends with his abuser is not an "emergency" in need of intervention. With domestic abuse, the emergency never stops, until the victims are, at least, no longer living at the mercy of a violent perpetrator.
Second, what is at stake here is not just criminal prosecutions of child abusers but also civil protection proceedings to keep children safe. On its face, the confrontation right does not apply in civil proceedings - but as DV LEAP's first Brief argues, civil courts hearing custody, visitation, and civil protection order cases, will be directly affected by the ruling here. Even civil courts tend to treat child abuse allegations with kid gloves, sometimes explicitly and sometimes implicitly raising the bar for proof of child abuse above a normal preponderance standard, and even adopting a confrontation right to protect the accused within the civil setting. Of course, by raising the bar for a finding of child abuse even in a civil proceeding, these courts have raised the bar for protection of children who are at risk of abuse. Unlike in a criminal proceeding, civil protective proceedings are a zero sum game: to whatever extent the accused benefits, the at-risk child loses.
Finally, given the weight the Supreme Court has been placing on history to determine the scope of the confrontation right, the following should be significant: Professors Thomas Lyon and Raymond LaMagna's superb research into how children's hearsay was treated historically demonstrates that in a striking exception to common treatment of the confrontation right, numerous courts admitted children's reports of rape to a variety of adults, including their mothers, their aunts, their doctors, and others. (Lyon and LaMagna, 2007). If the Framing era was capable of recognizing a need to admit such evidence rather than to leave such crimes unaddressed, surely the modern Court can do the same. Whether it will remains to be seen.