Thoughts on Clark: If L.P. were grown up

    Here are some thoughts on the Clark case prompted by reading the reply brief.

    For those who are not yet familiar with the facts of the case:  L.P., a boy not yet 3½, came to preschool with marks on his face suggestive of physical abuse.  Ultimately, when asked by a school administrator, he said something to the effect that “Dee” – Clark, his mother’s boyfriend – had caused the injuries.  L.P. was deemed in competent to testify at trial, but the trial court admitted evidence of his statement identifying Clark.  The Ohio Supreme Court held that this violated the Confrontation Clause.

    In this post I will address issues that I hope the Supreme Court doesn’t reach in Clark.  These are issues that have nothing to do with the fact that the declarant, L.P., was a very young child.

    So let’s suppose that L.P., instead of being just three years old and in preschool, was, say, 18 and in high school, and that everything else was the same in the actual case.  Then I think L.P.’s statement to a school administrator, identifying Dee as the source of his injury, should clearly be considered testimonial.  Note several points along the way to this conclusion.

    First, the proper perspective for determining whether the statement is testimonial is from the vantage point of a reasonable person in the position of the declarant.  I think this is always true.  I don’t think there’s any incompatibility between this position and the position taken by the Supreme Court in Michigan v. Bryant, that the perspectives of both the declarant and the interrogator (assuming there was one) should govern:  Ultimately, it is the declarant’s perspective that matters, but the apparent purpose of the questioner is a key determinant of what the declarant understands the likely consequences of the statement to be.   By the way, note the irony that usually, as in Bryant, it is the defendant who wants the Court to emphasize the declarant’s perspective (because at the outset the declarant understands better than does the questioner that what the declarant is about to say has significance for prosecution), but in the context of a child’s statement, as in the actual Clark case, it’s the prosecutor who wants to emphasize that perspective (because, while the questioner may understand the significance for prosecution of what the child says, the child is clueless).  See p. 8 of the reply brief.

    Second, in the hypothetical setting of the 18-year-old, I think the statement would fall within the “primary purpose” test.  Looming over everything would be the realization, on the part of L.P. as well as of the administrator, that L.P. was making an accusation of a serious crime to a person who would likely pass the accusation on to the police.  The State’s suggestion, p. 18 pf the reply brief, that the statement’s “primary purpose” is not prosecutorial because it was informal should be rejected on grounds already indicated in Davis v. Washington – what maybe considered the informal manner in which the statement was solicited and made does not alter the reality that it was made with the understanding of the significant legal consequences that it might cause.  And the State’s argument, also on p. 18 of the reply brief, that the statement was not testimonial because the primary purpose was a protective one should also be rejected, if for no other reason that the principal way in which the victim would likely be protected would be through the adjudicative system.

    Beyond that, though, I wish the Court would stop talking about purpose and instead talk about reasonable anticipation.  For one thing, I think it is incoherent, or at least nearly so, to speak about the primary purpose of a reasonable person in the position of the declarant.  The reasonable person is not the particular declarant but a hypothetical person in the same situation.  How can one say what the primary purpose of such a person would be in making a statement?  One can imagine different reasonable people being primarily motivated by different purposes to make a given statement.  Furthermore, it is often difficult at best to determine which of several purposes may have primarily motivated a given person.  And most significantly, I don’t think purpose is what determines the testimonial quality of a statement; anticipation is.  If the declarant knows that by making a statement he is creating evidence that will be used in prosecution, than he is testifying, whether he is pleased by that result or not.  I elaborated on this point years ago in an article titled Grappling with the Meaning of "Testimonial", 71 Brooklyn L. Rev. 241, 251-53 (2005).  Clearly an 18-year-old talking to a school administrator about a physical assault committed on him would anticipate the likelihood that the statement would be passed on and be used by the criminal justice system.  If there is any doubt about that now, there wouldn’t be if administrators could testify at trial about such statements without constitutional constraint, because such uses would soon become common knowledge (not only through actual trials but through TV shows and other popular media).

    Third, much of the reply brief reads as if the State is assuming that only statements made in response to interrogations can be testimonial.  But that is not true, and the Supreme Court has made this clear.  Davis, footnote 1.

    Even within the set of statements made in response to interrogation, the State appears to be trying to confine the category of testimonial statements to those made to the police.  See p. 8 of the reply brief.  There is no basis for such a limitation.  Indeed, testimonial statements should not be limited to statements made to governmental agents. The question throughout – a coherent one that usually will yield clear answers, though naturally there will be close and debatable cases – is whether a reasonable person in the position of the declarant would anticipate prosecutorial use.  (The result in Davis, that the very stressed statements made at the beginning of the 911 call there were not testimonial, can be fit within this framework by viewing the matter from the vantage point that the declarant actually occupied, speaking in the heat of the moment, rather than as if she considered the probable use of her statement after the fact, reflecting calmly while sitting in an armchair.  I argued this in Crawford, Davis, and Way Beyond, 15 J. L. & Policy 553, 562-63 (2007).)

    Limiting the category of testimonial statements to those made to police officers makes no sense at all, and would be an obvious invitation to abuse.  Bear in mind that there were no police forces or prosecutors in the modern sense in the centuries leading up to the Confrontation Clause.  Clearly the right existed in Biblical times.  If we were to return to a time when all of government but some adjudicative system were eliminated, the argument in favor of a right to have adverse witnesses brought face to face would remain undiminished.  And if the set of testimonial statements were limited to those made to some defined category of government employees, then prosecutors would have an incentive to gather evidence through agents not fitting within that category.

    But beyond that, if only statements to government agents could be considered testimonial (as the State seems to assume, in its first Question Presented and elsewhere), then a whole cottage industry would grow up of private evidence takers – that is, people who would offer to take (presumably on videotape) statements by victims and other observers and then relay them to court, without the makers of the statements ever having to take an oath or face the accused or the jury or be subjected to cross-examination.  I have raised this prospect many times.  I am not sure anybody has ever argued in response that this prospect is not realistic, or that it would be a tolerable result.   Indeed, it seems to me that the result would be inevitable, and that it would essentially turn the confrontation right into a matter of choice by the declarant.

    The key here, as always, is to understand the systemic consequences of any rule that is chosen.  A rule that statements to private people are not testimonial allows a system in which one can talk to a private person in the full knowledge (and even with the sole purpose) that the statement will be used in prosecution.  How is that not testifying?  And how can that possibly be acceptable?  Any attempt to salvage a government-audience-only rule by attaching to it an exception for bad-faith attempts at evasion (comparable to the evasion rule suggested by Justice Thomas in Davis, 547 U.S. at 838, 840, as a safety valve for the very rigorous formality test on which he insists) would be inadequate, unless bad faith were interpreted so loosely as to make the rule meaningless.

    Fourth, in determining the reasonable expectations of the speaker, all the circumstances are relevant – and that includes the content of the statement itself.  The State is just plain wrong when it says, p. 5 of the reply brief, that the accusatorial nature of the statement is irrelevant to whether the statement is testimonial.  True, a statement does not have to be accusatory to be testimonial.  If, for example, a speaker says to a known police officer investigating a notorious murder (readers of a certain age will recognize the reference), “I saw my neighbor drive quickly to his house, park the car at an odd angle, rush into his house, rush out a few minutes later, and drive quickly away,” there is nothing accusatory about the statement.  But it certainly should be considered testimonial in the circumstances; the speaker understood that she was providing information of use to the prosecutorial system, and if the substance of her statement is presented at trial without her coming to court she has been able to testify by talking to a police officer out of court.  That does not suggest, however, that the accusatory nature of a statement has no bearing on whether it is testimonial.  A statement that is accusatory may be objectively likely to be used for prosecutorial purposes even though made in circumstances in which a non-accusatory statement would not be likely to be used for such purposes.  Suppose someone comes home after a weekend away and twenty minutes later calls a non-emergency police line.   A statement, “There’s a cat trapped in a tree” should not be considered testimonial. A statement, “My house has been burgled.  Here’s what is missing . . . .” should be.  Similarly, a statement by our posited 18-year-old to a school administrator,“I don’t like my English teacher and would like to switch” is not testimonial; a statement, “Dee punched me repeatedly,” is testimonial.

    I think it would be unfortunate if the Court decides any of these issues in the context of the Clark case.  The inclination to admit the statement by the real (three-year-old) L.P. is understandably very strong, especially given the trial court’s ruling that he was not competent to be a trial witness – and perhaps also given a desire not to compel children in a position like his to be trial witnesses.  If the Court believes that the only way to allow admission of his statement without him being a trial witness is to hold his statement to be nontestimonial, and that the only way to do that is by a generally applicable ruling that narrows the category of testimonial statements, then the general standards for statements being deemed testimonial will be drawn too narrowly.  (I think this is closely analagous to what happened in Michigan v. Bryant.  The impulse to admit the statements there -- in which a shooting victim identified his assailant several hours before dying -- should have been addressed as a matter of forfeiture.  But the decision in Giles v. California had foreclosed this result, and the Bryant court compensated by adopting an unduly narrow conception of what is testimonial.)  I am hoping that in Clark the Court decides issues bearing only on statements by young children.  Of course, I think the best way to resolve the case is in accordance with the theory laid out in the amicus brief I did with Steve Ceci and the essay from which it was drawn.  I hope to post more comments later on child-specific issues.

   A few stray points:  (1) The State says in the reply brief, p. 6, that the aim of the Confrontaiton clause was to prevent ex parte examinations.  That is wrong, or at least subject to misunderstanding.  The Clause was not meant to constrain investigative behavior.  There is nothing wrong with the authorities examining a witness behind closed doors.  The confrontation right means that such an examination can't be used at trial in lieu of live testimony.

   (2) The Raleigh case involved what all acknowledge to be a violation of the confrontation right, use against Raleigh of the out-of-court testimonial statement by Lord Cobham.  It also involved testimony by one Dyer to a casual-seeming statement by an unknown Portuguese gentleman to the effect that Raleigh was in a conspiracy with Cobham.  The State contends, p. 8 of the reply brief, that Dyer's testimony did not create a confrontation problem.   Subject to some qualification, I agree.  I have recently stated my reasons in The Mold That Shapes Hearsay Analysis, 66 Fl. L. Rev. 433, 459-62 (2014).

   (3) The State is also right, of course, that unreliability shouldn’t trigger Confrontation Clause analysis.  P. 11 of the reply brief. Sometimes, though, those who argue for applicability of the confrontation right in a given case feel the need to point out that the statement involved is not particularly reliable; doing so responds to the concern that if the Court believes the statement is very reliable it will have a strong impulse to hold it admissible, and perhaps to approach skeptically any theory of the Clause that would exclude it.