Thursday, October 02, 2014

Supreme Court grants cert in a confrontation Clause case involving a child

The Supreme Court granted certiorari today in Ohio v. Clark, a case involving a statement by a three-year-old child.  As it happens, Steve Ceci and I have used this case as the touchstone for discussion in an article soon to be published in the University of Chicago Law Review, The Child Quasi-Witness.  I'll have more to say later about the case! 


paul said...

The teachers who questioned the child were not "state actors." They were not employed by a public school. The fact that they were required to "report" any suspicions that they had that the child had been molested to the authorities didn't transform their questioning of the child into the conduct of a "state actor." (They were required to "report." But were not requied to "question.")

Conduct by a "state actor" is required before the Sixth Amendment's Confrontation Clause (CC) applies. That clause is applicable to the states only because it was "incorporated" via the Fourteenth Amendment's Due Process Clause (DPC). And the DPC only applies to "state action." Thus, the CC can't serve as a bar to the introduction of hearsay in a criminal case unless the hearsay was the product of some conduct by a "state actor."

The child's hearsay statements to his teachers were not the product of any conduct by a "state actor." The CC has no applicability to this case.

Even if the CC was applicable, the child's hearsay statements are not barred from introduction into evidence by that clause. The primary purpose of the teachers' questions was not to accuse a targeted person of a crime nor to try and build a case against a particular person. And there was no formality/solemnity surrounding the acquisition of the statements. Absent both of these requirements, the child was not a "witness against" anyone within the meaning of the CC. Or, stated in the jargon of Crawford, his statements were not "testimonial."

I believe, based on his most recent writing on the subject of very young child declarants, Professor Friedman also believes that the child in the Clark case is not a "witness" within the meaning of the CC. But he reaches that conclusion in far different manner than me.

Looking forward to reading Professor Friedman's analysis of Ohio v. Clark.

Anonymous said...

The argument that paul makes about the state actor issue is frankly ridiculous. I'm confident SCOTUS feels the same way--if they had wanted to strike it down on that grounds the would have limited the grant to the first question. The question as to whether the child's statement is testimonial is a much closer question. Personally, I think it is. I've read the professor's comments in this regard in the past and remain wholly unconvinced.

In any event, I have no doubt as a descriptive matter the court took the case to overturn it. The only remaining question in my mind is how much violence they are going to do to the Constitution in the process....probably a lot.

paul said...

@Anonymous 9:46 PM,

Even Justice Scalia -- the number one advocate for a broad reading of the scope of the CC -- isn't convinced that hearsay that is not the product of some conduct by a state actor (as opposed to a private party) is within the reach of the CC. (See Michigan v. Bryant, 131 S.Ct. 1143, 1169, fn.1 ["I remain agnostic about whether and when statements to nonstate actors are testimonial."].)

Even if, as you surmise, cert. was granted so that the Ohio Supreme Court's opinion could be revesed, there was no reason to limit the grant to the first question because, at this stage of the proceedings, no one knows how the votes will come down on the state actor issue.

Richard D. Friedman said...

I won't speculate as to why the Court granted cert. And at least for the most part I'll refrain from speculating as to the outcome. But I think it is clear that if the statement were made in a comparable setting by an adult, or say by a teen, it should be considered testimonial. I really hope the Court doesn't say anything in this case that would preclude that result. The fact that it was made by a very small child who presumably had no clue of the possible consequences of the statement alters the situation considerably. I'll have more to say later.

paul said...

I agree with Professor Friedman's statement that the fact that very young children presumably have no clue of the possible consequences of their statement alters the situation considerably.

In order for any hearsay declarant (adult or child) to be a "witness against" someone (within the meaning of the CC) they must have some rudimentary understanding that their accusatory statement would (or at least could) be used against the person they are accusing of wrongdoing.

Most, if not all, very young children (how you define that category is another matter) don't have this knowledge. But some may. For those who do, the knowledge element is simply one prerequisite for a hearsay declarant to be deemed a "witness against" within the meaning of the CC.

Anonymous said...

The requisite governmental action comes from the court being involved. If, as Scalia has suggested, we need state actors (and we might), it's not because of the incorporation element.

Brian S. said...

If statements made by an injured party to someone with an obligation to report such statements are testimonial, that makes some statements made in hospitals interesting (but not problematic) because of state law duties to report gunshot, knife, and other wounds. I agree with Professor Friedman that this case would seem to be a testimonial situation if it was a teen or adult, but the very young child could change the calculus.

I look forward to hearing your thoughts on the case.

paul said...

@ Anonymous @ 8:45 PM,

If hearsay is not "fairly attributable" to some action by the government, (1) the declarant is not a witness within the meaning of the CC (because the circumstances surrounding the production of the hearsay do not sufficiently resemble the abusive government practices that gave rise to the inclusion of the CC in the Bill of Rights), and/or (2) the CC is inapplicable (because state action -- required by the due process clause and, in turn, the "incorporated" CC -- is absent).

(1) & (2) are not mutually exclusive. And, thus far, the Court has not directly addressed either proposition, although its dictum would appear to exempt hearsay by one private party to another private party from the reach of the CC.

Whether (1) and/or (2) are the basis for this exemption should be addressed in the Clark case. But the Court can avoid the state action issue entirely by simply concluding that the primary purpose of the questioning teachers (even assuming that they were "state actors") was not to elicit a statement designed to accuse a targeted person of a crime or to build a case against a suspect. But, rather, was primarily intended to provide for the safety of the injured child declarant and/or the safety of others who might be endangered by the unkown assailant, i.e. there was an "ongoing emergency," as that term was broadly interpreted in Bryant.

Richard D. Friedman said...

A few responses to Paul's latest comments: (1) If the CC were limited as he suggests, to statements fairly attributable to some governmental actor, it would become virtually a dead letter, because there would quickly arise a community of private testimony-takers who could videotape testimony for trial.

(2) It's important to bear in mind that before the time of the CC most prosecution of crime was private. I believe the confrontation right was well understood to apply to some statements made to private actors.

(3) Putting aside the fact that the speaker here was a child, the ultimate question in determining whether a statement was testimonial should depend on the anticipation of the speaker, not on that of the questioner, if there is one. I don't believe this is incompatible with the Court's language in Bryant: The intention of the questioner, where there is one, is obviously a crucial factor in determining the anticipation of the speaker.

paul said...

In response to Prof. Friedman:

(1) Even if the CC is inapplicable regarding private party hearsay, the due process clause might bar such hearsay from admission, especially if the hearsay was so unreliable that its admission would undermine a defendant's right to a fair trial. (Simply stated, the fairness that is rightfully demanded by the Constitution of all criminal proceedings is not defined by the application of the CC.)

(2) I don't dispute that the CC applies to some statements made by state actors to private actors. My point is that it doesn't apply to any statement made by a private actor to another private actor, such as occurred in Dutton v. Evans.

(3) I read Bryant differently than Prof. Friedman. From my reading, Bryant clearly rejects the anticipation-of-the-speaker test in favor of the primary purpose of the (government) questioner perspective. But, as I have previously stated, a declarant is not a CC witness unless, based upon an objective evaluation of the surrounding circumstances, the defendant can establish that the declarant had some basic understanding/knowledge that their statement might be used against the person that they were implicating.

(4) I am still waiting for Prof. Friedman to post on this blog his analysis why a very young child can't be a CC witness. And how he would determine which children fell in the "very young" exception. (I have read a pre-publication of Prof. Friedman's Child Quasi Witness article. And, respectfully, I don't believe that his formulation would persuade a single member of the Court. But I may be wrong.)

Anonymous said...

"The intention of the questioner, where there is one, is obviously a crucial factor in determining the anticipation of the speaker. "

The problem here is that this effectively would create a "childhood exemption" to the CC when no such exemption appears in the text. It's vital to remember in this context that the Founders had a completely different conception of childhood than we do to day. From a Originalist point of view there is no distinction between a child and an adult because the Framers had no concept of childhood being a developmental state. The beginning of our modern notions of childhood didn't really begin to take shape until the Victorian era and wasn't solidified in any academic way until the work of Jean Paiget in the 1900s.

In this regard I give Paul credit--at least the "ongoing emergency" test has some foundation in the law. The difficulty with that exception in this case, however, is that it is difficult to see how a child who comes to school--who is obviously alert and ambulatory--meets the criteria for an on-going emergency. Heck, the school didn't even bother to call 911-they called CPS instead.

paul said...

@ Anonymous @ 9:31 PM

1. For a blistering critique of Prof. Friedman's "very young child" CC exception, see Prof. Mosteller's article Confrontation In Childern's Cases: The Dimensions Of Limited Coverage, footnote 30.

2. As defined in Bryant, the concept of an "ongoing emergency" is very broad. It extends beyond any contiuning danger that an assailant poses to his immediate victim. It includes the danger he poses to the health and safety of any other person who might come in contact with him before he is apprehended.

This broad concept of "ongoing emergency" clearly encompass the Clark scenario where, at the moment the teachers posed their questions, the cause of the child's injuries were unknown and, therefore, could have been inflicted by an unknown adult (including a member of the child's household) who, given the nature and extent of the injuries to the 3 year-old, posed a significant danger to the health and welfare of other children (including other children who may reside in the injured child's home).

These objective circumstances are more than sufficient to establish an "ongoing emergency," as that term is explicated in Bryant. In fact, the danger posed by the unknown person who beat the child (especially if that person was not a classmate but was an adult with access to other children) was equal to, if not greater than, that posed by the unknown assailant in Bryant. If there was an "ongoing emergency" in Bryant, there was one in Clark.

3. Your thoughts on the "state actor" issue would be appreciated.

Anonymous said...


Your on-going emergency test reads Byrant too broadly and if upheld by the court the exception would swallow the rule. “An on-going emergency” must mean a crisis that is not only continual by also a genuine emergency. Equating emergency with any potential threat or danger, real or imagined, simply isn't the definition of an emergency. In my view the critical piece of evidence that undermines your claim that this was an on-going emergency is the behavior of the teachers themselves—they didn't treat the incident as an emergency. They didn't call 911 and say,”we are worried about an abuser being on the loose.” If they had done that then maybe your claim would have merit. But if the people who were Johnny-on-the spot saw no emergency I fail to see how the court can second guess that decision and claim there was one.

As for the state actor question it is helpful to take a step back and see that issue in a broader context: what does the state need to do to delegate its authority to another person or group? When looked at from this broader perspective we have an oral argument just yesterday that is directly on point. The discussion in North Carolina vs FTC in my view foreshadows some of the arguments that will be seen in Ohio vs Clark (

If one accepts the arguments of the state of North Carolina than it is a slam dunk that teachers are state actors for purposes of the CC. After all, the state argues that all it needs to do is delegate its authority to anyone and that person becomes a state actor by that virtue of that delegation alone. The state simply has to tap someone on the shoulder and let them loose. Teacher certification certainly meets that standard. But even if one takes the broader reading urged by the FTC, that in order to delegate power the entity must be under “active supervision” by the state, teachers still qualify simply because they are under active supervision of the state by virtue of their legal requirements to engage in continuing education. But what is especially clear is that none of the justices think that the only people who can be state actors are those specifically hired by the state to be so. And I cannot think of any good reason to treat a bunch of dentists any differently in this regard than a bunch of teachers.

paul said...

@ Anonymous @ 2:16 PM

Respectfully, I don't believe that the Court will apply its "state action" jurisprudence regarding the applicability of the Sherman Act to the Clark case. Instead, the Court is more likely to determine if the questioning of the child by the private school teachers is "fairly attributable" to the state of Ohio simply because of that state's mandatory reporting law. (NOTE: Some states' mandatory reporting laws extend to all of its residents. Are they all transformed into "state actors" simply because of their state-imposed duty to report suspected child abuse? I don't believe that the Court will follow this far-reaching, illogical conclusion.)

The "fairly attributable" standard is used by the Court in making the "state action" determination in the context of section 1983 civil actions. And has been used by lower federal courts in 1983 lawsuits brought against mandatory reporters. In the latter cases, every federal court to address the issue has concluded that private persons (such as doctors) designated as mandatory reporters (under state law) are not "state actors" (for purpose of section 1983's "color of law" requirement -- a requirement that the Court has concluded is the same as the requirement of "state action" set forth in the 14th Amendment's Due Process Clause (DPC).)

Accordingly, private persons (such as the teachers in Clark) are not "state actors" (for purpose of the DPC and, in turn, the Confrontation Clause that was "incorporated" via the DPC). There conduct in "questioning" a child who they suspect might have been abused is not "fairly attributable" to the state simply because the state has designated them mandatory "reporters."

Indeed, even without Ohio's mandatory reporting law, the teachers (who questioned the child in Clark) had a separate, independent, superseding, primary duty (as teachers) to ensure the health and safety of children in their care and custody. This duty to question the injured child was not created by, or "fairly attributable to," Ohio's mandatory reporting law. It existed, based upon common law principles, simply because they were teachers in loco parentis with the injured child.

Bottom line: I have no doubt that the Court will hold that the teachers' questioning of the injured child was the action of "private parties," not conduct "fairly attributable" to the state. And the accusatory hearsay of the private person/child to the private person/teachers was (like the private person-to-private person accusatory hearsay in Dutton v. Evans and most of the accusatory hearsay in White v. Illinois) not barred from admission at the defendant's trial by the Confrontation Clause.

We shall see.

P.S. Your insightful comments are appreciated and respected.

Richard D. Friedman said...

I'll pitch in only to say this: Whoever the immediate audience of a statement may be, there is no question of a lack of state action that might make the Due Process Clause, and so the Confrontation Clause in a state prosecution, inapplicable. The state action consists of using a (hypothetically) testimonial statement against the accused as proof at trial, and ultimately convicting him at least in part on the basis of that statement, without affording him the right to be confronted with the maker of the statement.

It's a separate question whether, or in what circumstances, a statement made to a private person may constitute a testimonial statement for purposes of the Confrontation Clause. I think state involvement in the creation of the statement is a factor that may help show the speaker understood the statement to be testimonial. But it is by no means necessary. If someone observes a crime and makes a videotaped statement describing it and then sends that statement to the authorities, knowing full well that it will be used in prosecution, the statement should clearly be deemed testimonial even though state actors played no role in its creation.

paul said...

The admission of evidence, including hearsay, in court, standing alone, is insufficient state action to trigger application of any exclusionary rule found in the 4th Am., 5th Am., or 14th Am. Due Process Clause (which made the 6th Am. Confrontation Clause applicable to the states). (c.f. Colorado v. Connelly, 479 U.S. 157.)

The only exception to the state action requirement is where the conduct of a private party (in producing, eliciting or obtaining the evidence in question, including hearsay) "shocks the conscience." In that extreme instance the Constitution, in particular principles of substantive due process, would bar admission of the evidence so obtained, notwithstanding the absence of state action.

Anonymous said...

The Ohio Supreme Court (OSC) held that the teachers in this case are state actors as defined by state law. This holding is clearly explained on page six of the court's opinion. That is the problem with paul's “fairly attributable” discussion—it is inapposite because the OSC has already held that as a matter of state law the teachers are acting on behalf of the state of Ohio. One can disagree with that holding but it nonetheless remains the holding of the OSC. In that regard there may even be an AEDPA deference issue lurking. In short, the teachers are state actors not because I say so but because the majority of OSC says they are. It is worth nothing that even the dissent in the OSC bases its argument that the teachers are not state actors in Ohio law. The only part of the dissent that is grounded in federal constitutional law is its discussion of whether the child's statements are testimonial for CC purposes.

Nevertheless, the fact that the OSC has held that the teachers are state actors under state law is not dispositive of the question of whether they are state actors as a matter of federal constitutional law. This is the heart and soul of the discussion in North Carolina vs FTC. Even though that case involves the Sherman Act the animating concern is when should SCOTUS defer to a state's own determination of who is a state actor. Because if SCOTUS is going to rule that the teachers in this case are private parties it has to find some federal hook to overturn the OSC's own interpretation of its own law. My view of the discussion in North Carolina vs FTC is that none of it is favorable to paul's position. In the end, I think the SCOTUS is going to defer to the OSC interpretation of its own law and find they are state actors.

paul said...

@ Anonymous @ 2:09 AM

1. The OSC's opinion is not supported by adequate and independent state grounds regarding either issue upon cert. was granted; and

2. AEDPA is irrelevant

Anonymous said...


Obviously the OSC felt it had "adequate and independent state grounds" otherwise it wouldn't have ruled the way it did. In fact, the court specially says that it is holding that the Ohio state legislature /intended/ the teachers to become state actors. If interpreting the legislature's intention regarding its own laws isn't an independent ground then no state court ruling would be safe because interpreting the law of the state is precisely what state courts do all the time. And again, your point is not even raised by the dissent--the dissent simply disagrees with the holding, it never claims it is inadequate.

Honestly, at this point I think you're just fishing for bites. Not even the cert petition by Ohio tries to make your claim. Maybe the merits briefs will but until those briefs are in and I can evaluate their logic I'm done commenting regarding question one.

Anonymous said...

@Anonymous @ 3:11 PM

Just because neither the OSC nor Ohio raised the argument promoted by Paul does not mean the argument will not carry the day. For example, In Williams v. Illinois, Alito concluded the trier of fact did not have to consider DNA report in question for its truth in order to credit the testifying expert's opinion of a match because the source of the DNA profile matched to the defendant's was established through circumstantial evidence. The Illinois Supreme Court's opinion did not hint at such a basis for its ruling, and Illinois never raised such an argument either before SCOTUS or in the state courts. Rather, the argument was raised for the first time by the U.S. Solicitor General in its SCOTUS brief.

paul said...

@Anonymous @ 11:23 PM

Thank you for you pointed comments.

It should also be noted that in Williams none of the parties argued that a hearsay declarant is a "witness against" (within the meaning of the CC) only if the primary purpose of the questioning (by a state actor) was to accuse a "targeted" person of a crime. This was the test set forth by Justice Alito writing on behalf of the four dissenters. Justice Kagan asked where Alito came up with this formulation? The partial answer was, yours truly. (If interested, type the word "targeted" into the search box on this blog, for more details.)

I would also note that Isssue # 1 (in the cert. grant) should have been phrased differently. Instead of reading "Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause." The phrase "an agent of law enforcement" should be replaced by the broader, more encompassing, phrase "a state actor."

Based on agency principles, the Court can easily conclude that the teachers who questioned the injured child were not "agents of law enforcement" simply because they were mandatory reporters (under Ohio law). But that only begs the key question: Were they "state actors" at the time they questioned the child given the state-imposed duty to report suspected child abuse. A person can be a "state actor" without also being "an agent of law enforcement." The former category is what matters for CC purposes.

And, as I stated in prior comments, the teachers were not state actors because, inter alia, their action in questioning the child isn't "fairly attributable" to the state of Ohio. Rather, as teachers in loco parentis with the child, they had an independent, overriding/primary duty to find out how the child's injuries occurred, regardless of the mandatory reporting law.

Anonymous said...

Paul, I'm interested in how your state action requirement theory addresses the rest of the incorporated rights. Where is the state action when a court deprives someone of a jury trial or of counsel and when courts resolve religious disputes by interpreting doctrinal differences? Also, I appreciate the cite to Colorado v. Connelly, but assuming you meant the Cf. signal you used, do you perhaps have any other authority for that claim that isn't tangential? I would like to read it if so.

Anonymous said...

Oh, and nevermind the First Amendment question. That occurred to me as soon as I hit post (declarative action in the resolution).

paul said...

Anonymous @ 6:06 PM,

Take the 6A right to a speedy trial. If, after the state charged a defendant with a felony, the defendant was kidnapped by a nonstate actor and held against his will for a decade before escaping from his captors, the requisite state action would be absent should the defendant assert that his 6A right to a speedy trial was violated. Or, stated differently, the 6A's speedy trial guarantee, like the 6A's confrontation guarantee, requires state action. And as the Connelly case holds (albeit in the context of due process) a trial court's admitting the contested evidence does not, by itself, constitute the requisite state action.

The entire state action concept depends upon who is responsible for the alleged constitutional deprivation. In my opinion, history establishes that the CC was only intended to apply where the state/government (or their agent) was responsible for creating/eliciting/generating/producing the hearsay. That same history (in particular Raleigh's Trial) establishes that the deprivation consists of the creation of the hearsay by the state/government and its use at trial against an accused. Both creation and use are necessary to trigger application of the CC. Use without state/government creation (of the hearsay) is, like Connelly holds, insufficient to trigger constitutional protection.

paul said...

The 1A (when read together with the due process clauses) only prohibits the state/government from depriving a
person of their claimed right to speak or assemble. If a purely private person is solely responsible for any such deprivation, the 1A is inapplicable.