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.