Friday, June 19, 2015

Ohio v. Clark: Some Initial Thoughts

A few thoughts on the decision in Ohio v. Clark:

1.  The result is totally unsurprising, and I was not even surprised by the unanimity as to the result; it was difficult at argument to perceive that any justice thought the statement was testimonial. 

2.  I don’t think the statement should have been considered testimonial: I don’t think three-year-olds have the capacity to make testimonial statements.  (Steve Ceci and I asserted this position in our amicus brief and in the law review article on which we based it.)  And I wish the Court had left it at that.  On p. 9, the Court does emphasize the age of the victim, saying that statements by very young children “will rarely, if ever, implicate the Confrontation Clause,” because of their cognitive limitations.  All correct, I think.  Future cases are going to have to work out what the boundary is as to when a child is old enough that his or her statements may fall within the Clause.

3.  Justice Scalia objects to Justice Alito’s treatment of Crawford as being just “a different approach” from Roberts, not emphasizing that it was a total repudiation.  But the fact is that the majority opinion deals entirely within the Crawford framework.  That’s good news.

4. At argument, several justices seemed to have doubts about the “primary purpose” test, but now eight of them double-down on it.  Too bad.  It really isn’t a coherent test, because so often purposes are joint and it’s really not possible to tell which is primary.  Consider Justice Alito’s statement, p. 11, that the teachers “undoubtedly would have acted with the same purpose [to protect the child and remove him from harm’s way] whether or not they had a state-law duty to report abuse.”  Well, you could flip that and say that they “undoubtedly would have acted with the same purpose [to aid in law enforcement] whether or not they had a protective purpose in mind” – if, for a gruesome example, the child seemed clearly on the verge of death.  And the “primary purpose” test is easily manipulable; we can anticipate that many statements will be funneled to professionals other than law enforcement and the state will cite some purpose other than law enforcement as primary.  I think there’s really only going to be clarity and a solid basis when the Court uses a test based upon reasonable anticipation, from the point of view of the speaker.  But we seem to be a long way away from that. 

5.  The Court indicates that the “primary purpose” test is a necessary but not always sufficient condition for a statement to be excluded by the Confrontation Clause.  P. 7.  This is, I suppose, dictum, as Justice Scalia says.  It’s potentially dangerous, though.  If it’s limited to the one kind of case Justice Alito mentions – “out-of-court statements that would have been admissible in a criminal case at the time of the founding”  – I suppose it’s not so bad.  What kinds of statements are those?  The only ones mentioned so far are dying declarations, which Crawford says are sui generis.  (I think dying declarations should be treated under forfeiture doctrine, but that’s another matter.)  But if the “not always sufficient” language becomes the excuse for the Court to say that even though the primary purpose of a statement was to create evidence for law enforcement, it still isn’t going to be treated a testimonial because, well the Court doesn’t want to treat it as testimonial, that could be a destructive wedge.  I’m hoping not.

I'll add in here a response to a question asked by Paul Vinegrad -- what do I think about Justice Scalia's comment on the defendant's "burden" to get the benefit of the Confrontation Claue's exclusionary rule.  I think that Justice Scalia sometimes has a tendency to read majority opinions with which he disagrees in what he considers the worst possible light -- which can have unfortunate results for him if his comments tends to be self-fulfilling prophecies.  I hope this is not such an instance.  He says, p. 3, that under the majority opinion future defendants and "confrontation Clause majorities" have a "burden" to provide “evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding."  But gee, I think all the majority said was that neither Crawford nor its progeny "has mounted evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding."  I think all that means is that if it is shown -- presumably by the prosecution or its backers -- that a given type of evidence was regularly admitted at the founding, then the Confrontation Clause presumably was not intended to admit it.  Nothing so dramatic there, and nothing that Justice Scalia should find particularly distasteful.  If evidence was regularly admitted at the founding, it's a pretty good indication that it was not considered testimonial in nature.  And the only type of statement that both (a) is testimonial and (b) was regularly admitted against criminal defendants at the time of the founding -- at least the only type discussed so far by the courts -- is dying declarations.  So I think Justice Scalia should have saved his powder there.

6.  The Court declines to adopt a categorical rule excluding statements not made to law enforcement officers from the reach of the Confrontation Clause.   That’s good.  It says that such statements are “much less likely to be testimonial than statements to law enforcement officers.”  I suppose that’s right.  (Statements to known law enforcement officers describing a crime are highly likely to be testimonial.)  But although the Court says such statements could “conceivably raise confrontation concerns,” I think some almost certainly do.  If we took a case very similar to Clark but made the victim an 13-year-old, as in a hypothetical posed by Justice Kagan at argument, p. 12 (I had mentioned a 18-year-old in a prior post), I think the case would have looked very different.

7.  Justice Alito says, p. 11, “It is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution.”  For support, he cites Davis and Bryant, in which statements were not testimonial though made to the police.  But “irrelevant” in the sentence I just quoted has got to be too strong; he might better have said “not completely dispositive”.
8.  Following that passage is this curious one:
Thus, Clark is also wrong to suggest that admitting L.P.’s statement would be fundamentally unfair given that Ohio law does not allow incompetent children to testify.  In any Confrontation Clause case, the individual who provided the out-of-court statement is not available as an in-court witness, but the testimony is admissible under an exception to the hearsay rules and is probative of the defendant’s guilt.  The fact that the witness is unavailable because of a different rule of evidence does not change our analysis.
I find this passage very difficult to understand.  (Jeffrey Bellin has also expressed uncertainty on EvidenceProfBlog about the meaning of this passage. What does Justice Alito mean by “any Confrontation Clause case”?  It does not seem that it could mean any case in which there is a violation of the confrontation right, for two reasons: 

(a) It is not true that in all such cases the maker of the statement is not available as an in-court witness.  There was no proof, for example, that those who made the key statements in Hammon v. Indiana, Melendez-Diaz v. Massachusetts, or Bullcoming v. New Mexico were unavailable.  Indeed, availability of the maker of an out-of-court testimonial statement in itself means that the Confrontation Clause renders the statement inadmissible.   Could Justice Alito be using “not available as an in-court witness” to mean “not testifying in court”?  That would not only be a failure to use ordinary terminology properly, but it would not help make any point, given that in Clark the maker of the statement could not be made a witness.

(b) If there is a violation of the confrontation right, then it makes no sense to say “the testimony is admissible under an exception to the hearsay rules.”  (Does he mean “would have been admissible but for the Confrontation Clause”?  But then what does the passage prove?)  If there's a violation of the Confrontation Clause, it doesn't matter what the hearsay rules would otherwise say.

So does “any Confrontation Clause case” refer to a case in which the accused makes a seemingly plausible yet ultimately failed contention under the Clause?  Again, it’s not true that in all such cases the declarant is unavailable; the declarant may be available but ultimately the statement is determined to be non-testimonial

And what of the last sentence in this passage and its reference to "a different rule of evidence"?  I don't think Justice Alito means to suggest that in most cases the maker of the statement is unavailable by virtue of a rule of evidence; that's simply not so.  I suppose "different" is in distinction to the reference to a hearsay exception in the prior sentence.  So maybe the passage is intended to mean something like, "Often, when an accused makes a failed Confrontation Clause argument, the maker of the statement is unavailable and yet that does not stop the statement from coming in.  So it doesn't matter that here the cause of unavailability is a state rule."But there is a very significant difference between the situation in which the maker of the statement is unavailable by reason of circumstances beyond the state's control and that in which a rule created by the state renders the maker unavailable.

9.  The point that the state rendered the child incompetent to be a witness is particularly important because, given the result in Clark, states may have an incentive to declare  broader category of children as incompetent to be witnesses.  If statements made by those children are not testimonial, then the Confrontation Clause provides no constraint on use of their statements, and the state may be delighted not to call the child as a witness nor to allow the defendant to do so.

10.  Due process arguments are not resolved by the case, and I hope that defense lawyers now recognize that they are what is left to them.  Steve Ceci and I have argued that, given that the child is not capable of being a witness, if the statement is to be offered, the accused should have a right to have the child examined out of court by a qualified forensic interviewer.  I believe it is now particularly important that defense lawyers now claim this right.  (The "fundamentally unfair" language quoted above does not stand in the way; our argument is not that it is fundamentally unfair that the statement be admitted given that the child is not competent to be a witness.  Rather, we say that, if the statement is to be admitted, given that the child is not competent to be a witness, it is unfair not to allow the defense the chance to have an out-of-court examination of the child, the source of the evidence, through a qualified forensic interviewer.)

11.  It seems to me that Justice Thomas as actually loosened up a bit.  Instead of talking in terms of formality, he talks about indicia of solemnity.  That seems reasonable, if solemnity is understood to mean understanding the gravity of the consequences of the statement.  I would like to think that perhaps Justice Thomas has second thoughts about the extreme test of formality he applied in Williams v. Illinois.  Time will tell.


Anonymous said...

If the primary purpose test is construed such that any statement created for multiple purposes is deemed nontestimonial because its is not completely clear what its primary purpose is, than only those statements made with the clear, singular purpose of creating evidence against the accused would be testimonial. It seems to me that the only types of statements that would be testimonial under the test would be things like sworn affidavits, certified statements, and the like---things that would also pass Thomas's solemnity test. Maybe I'm taking things to the extreme, but it appears to me that the primary purpose test and Thomas's solemnity test are converging to the same place, albeit for different reasons.

paul said...

What primary purpose test have six justices apparently agreed upon?

1. The "assisting in prosecution" test (p. 1);

2. The "gather evidence for prosecution" test (pp. 8 and 11); or

3. The "creating an out-of-court substitute for trial testimony" test (p. 12)

Even if when applying each test the Court will analyze the totality of the circumstances, including, but not limited to (A) the (objectively assessed?) state-of-mind of the declarant and/or the questioner (assuming there is one), (B) the declarant's age, (C) the declarant's understanding (or lack thereof) of the consequences of their statement(s), and (D) the identity of the questioner (if there is one) as either a private person or someone "principally charged with uncovering and prosecuting criminal behavior" (p. 10), the ultimate determination of whether the declarant was a "witness" (within the meaning of the CC) (or in Crawford parlance the declarant's statement was "testimonial" will arguably be different depending upon whether the "assisting," "gathering," or "creating" test applies.

Also, assuming the defendant can meet his burden (I agree with Justice Scalia that the Court has placed the burden on the defendant) of (1) establishing that the primary purpose (of the declarant and/or questioner) was to "assist," "gather" or "create" (depending upon which test actually applies?), he must also establish (2) that "at the time of the founding" the particular hearsay would have been inadmissible in a criminal case. (pp. 7 and 10.)

So, for example, a defendant can satisfy his historical burden (set forth in (2)) if he can show that the hearsay was created in circumstances that resemble/are sufficiently like those that resulted in Lord Cobham's hearsay accusation against Releigh. (p. 10.) In Clark, the defendant failed to meet his historical burden because "[a]s a historical matter [] there is strong evidence that statements made in circumstances similar to those facing L.P. and his teachers were admissible at common law." (p. 9.)

A careful reading of Clark establishes that the Court has significantly limited the reach of the CC -- That, going forward, the vast majority of hearsay that is admissible under an evidentiary hearsay exception will not be barred by the CC. The language used by the Court to state the primary purpose test, and the burden the Court has placed on defendants to satisfy that demanding test as well as establish that, historically, the hearsay would have been inadmissible results in a significant narrowing of the scope of the CC.

It will be interesting to see what the future holds in the everchanging world of the CC.

Richard D. Friedman said...

That's a very interesting insight. I hope that isn't what happens, because it would be very unfortunate. So what will happen with a case like Hammon v. Indiana? Eight justices thought it was clear that the oral statements made to a police officer there (not just the affidavit, which is what one might infer from the majority opinion in Clark, were testimonial. Justice Thomas didn't think so, on formality grounds; I wonder if his solemnity test would be so restrictive. Justice Alito has signaled that he isn't enthused about the result in Hammon. But I'd like to think that most of the Court recognizes that if those statements are not testimonial, there is very little constraint on the state; it could gather statements that everybody knows are produced for prosecution, and wave some formula about other purposes and lack of solemnity, and the Confrontation Clause would have nothing to say. That would be a really bad result!

Joan Meier said...

Hi Rich
I'm sorry my comments were so rushed and possibly unclear on today's radio "interview". I'd love to engage with you sometime about what I was getting at. I am somewhat nonplused at how everyone acts ike it's a no-brainer that childrens statements can't be testimonial - and it seems a bit slippery to me - ie, people know they would look like monsters if they advocated against admission of children's statements about abuse - but it seems to me inconsistent with the significant advocacy on the defense side to broadly construe the purpose test to look at who's ASKING, not just who's TALKING, and if you do that (as many states have) children's statements CAN be excluded.

That said, the decision does seem to me a concession (on the part of Scalia, for example - not you).

As for your proposed solution, I have two thoughts: First, would you be arguing that df has a constitutional confrontation right to have a forensic exam? Or are you just saying this would be a good (fair) state practice? Second, the concern I have is that the supposedly "expert forensic interviewers" of children are some of the most ideological and unscientifically trustworthy psychologists out there. You see this in the outrageous degree of junk science and junk pronouncements about children's (non) credibility in family courts. We are desperate to get them OUT of family court - I hope to god they do not get ushered INTO criminal court.

I am sympathetic to your fundamental concern - that df needs some way to challenge the child's statement. But I think that way has to be to challenge the teacher reporting it, the context in which it was elicited, the alternative explanations, etc. You're not going to get more credible or reliable information by a forensic interview after the fact with a three year old. There will be much more time for coaching, confusion, and memory fuzziness. The most credible statements are those made in the moment - as these were in Clark.

Joan Meier said...

I also agree entirely with "Anonymous" - the majority's "primary purpose" test and Thomas' "formality/solemnity" test are converging.

paul said...

Under the "assisting" test, the oral statements in Hammon are testimonial. Given the circumstances (i.e., a uniformed officer questioning a domestic violence victim about the details of the attack by a known assailant), (1) Amy clearly understood that she was "assisting" someone "principally charged with uncovering criminal behavior" with the prosecution of the identified defendant, and (2) The primary (if not sole) purpose of the officer's detailed questions (asked in non-emergency circumstances) was to "assist" in the prosecution of the known defendant.

I believe you get the same result under the "gathering" test.

But I don't believe Amy is a CC witness if you apply the "creating" test. Under that test, it must be established that the hearsay was created as a "substitute" for trial testimony. That test was met in Raleigh's Case where the Crown's interrogators were trying to get Cobham to (voluntarily or involuntarily) provide accusatory statements to use at Raleigh's trial as a "substitute" for Cobham's live testimony.

In Hammon, the circumstances of Amy's questioning don't lead to the conclusion that the questioning officer (or Amy) wanted to "create" a "substitute" for trial testimony. There is no indication that Amy or the officer believed that Amy's statements implicating the defendant would be used as a "substitute" for Amy's live testimony. If anything, the questioning by the officer would have led a reasonable person in Amy's position to believe that she would be required to testify at a future trial -- not that her statements could be used as a "substitute" for her live testimony.

Whether or not defendant Hammon could meet his additional "historical" burden, however, is an open question. Do the circumstances sufficiently resemble circumstances at common law under which the hearsay would have been excluded? Or at the founding would have Amy's accusatory statements have been admitted?

I am not sure if the majority of the Court would deem Amy a CC witness in light of Clark. If I had to venture a guess, I believe that the majority of the Court would, as a historical matter (regardless of whether or not the defendant could satisfy his initial primary purpose test burden) hold that the circumstances attending Amy's oral statements do not suuficiently resemble those in Raleigh's Case such that the defendant has failed to establish that Amy was a CC witness.

paul said...

And, yes, I agree with other commenters that Thomas's sufficient "resemblance" to "historical abuses" test (aka his sufficient "solemnity" test) is similar to the "historical" hurdle that the majority states a defendant seeking exclusion of hearsay on CC grounds must get over, in addition to the primary purpose hurdle.

When all is said and done has the ultimate question become: Do the circumstances under which hearsay is uttered sufficiently resemble those that existed in Raleigh's Case?

Anonymous said...

I'm actually not that happy to see people agreeing with me on the primary purpose/solemnity convergence (I argued Williams for petitioner, so I'm not thrilled with the chipping away at Crawford). However, even if I turn out to be right about the trend, I don't think there will be complete convergence. For example, had the record in Williams demonstrated that the authors of the report certified its contents, we would have likely picked up Thomas's vote, but I can't imagine that that would have swayed anyone in Alito's plurality.

Also, I pessimistically agree with Paul that Clark may lead courts (which, in my experience at least, tend to be hostile to CC claims) to burden defendants with proving up that the complained of out-of-court statements are of the type that would have been inadmissible at the time of the founding. If trial-level defense attorneys are going to be expected to engage in history projects, it's going to be rough.

paul said...


Perhaps it is time for a law review article which discusses the historical pedigree (or lack thereof) of every single hearsay exception? Because, as you state, trial-level counsel will be ill-equipped to perform that type of time-consuming research. And, even if the burden was in fact placed on defense counsel (by the Clark majority), dilligent prosecutors should not sit idly by and simply argue that the defense has not met its burden regarding the historical hurdle. Rather, they should also begin to gather historical evidence that each of the hearsay exceptions are consistent with founding-era practice.



Richard D. Friedman said...

I don't want to keep repeating myself, but I really don't think the Court envisions the type of burden, and particularly the type of historically oriented burden, that Paul sees. time will tell. But for now, I think all we can say is that if there was a regular practice of admitting a given type of statement at the founding, the Court is unlikely to regard that type of statement as testimonial. I don't think that defendants are going to have to find exact 18th-century analogies for their statements. And it bears emphasizing that the Raleigh case was just one of many in which the confrontation right was contested; there were nearly two hundred years of developments, many of which were much more salient to the Framers,after Raleigh's case.

Brian said...

Just to be clear, I wasn't speaking in terms of what the Court may or may not have intended, rather I was just stating how I believe Clark may be used in the trenches. If I were a prosecutor, I'd certainly point to Clark and argue that the defendant needs to demonstrate more than the primary purpose of the out-of-court statement. And my suspicion is that such arguments would be well received, at least in the trial court. Maybe I'm being overly pessimistic, but but that just comes from my experience in practice.

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