Prosecutors Say Confrontation Doesn't Apply To Child Victim's Replies to Teacher's Queries

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By Hugh Kaplan

March 2 — A 3-year-old boy's responses to his teacher's questions about who had injured him may be used to convict the man the child accused even though the man didn't have an opportunity to cross-examine or otherwise confront the child, prosecutors argued to the U.S. Supreme Court March 2.

The court's ruling in the case will be important not only for its potential to address the specific issue of child-victim hearsay, but also for its potential to clear up the confusion surrounding the more general issue of how to determine whether a statement is “testimonial” in nature.

Statements that are testimonial in nature are subject to the constitutional limits on hearsay announced in Crawford v. Washington, 541 U.S. 36 (2004), and its progeny.

Statements that aren't testimonial in nature aren't subject to Crawford's cross-examination requirement. Instead, such statements are regulated by the hearsay rules adopted by the states and the federal government.

Determining what kind of evidence is testimonial has divided the court. The justices' last exploration into determining testimoniality resulted in a disconnected 4-1-4 decision in 2012 that allowed out-of-court statements about DNA evidence. Even the court's prior Crawford decisions that enjoyed majorities were 5-4 rulings.

Are Children's Statements Testimonial?

Generally speaking, a statement is testimonial in nature when it is created with an eye toward later legal proceedings.

The court made some of its prior rulings on the testimoniality of statements by looking at the intent of the declarant, the intent of the questioner, and the totality of the circumstances.

This was the framework applied by the Ohio Supreme Court when it overturned the defendant's conviction for physically abusing a 3-year-old boy and his younger sister.

State and federal prosecutors told the U.S. Supreme Court that the state court got it wrong when it held that the confrontation clause should have kept out a teacher's testimony about the child's accusations without the defendant's opportunity to confront the child. The state high court emphasized the teacher's statutory duty to report suspected child abuse to authorities:

At the time [teacher] Jones questioned L.P., she acted as an agent of the state for purposes of law enforcement because at a minimum, teachers act in at least a dual capacity, fulfilling their obligations both as instructors and also as state agents to report suspected child abuse pursuant to R.C. 2151.421, which exposes them to liability if they fail to fulfill this mandatory duty. Because the circumstances objectively indicate that no ongoing emergency existed and that the primary purpose of the questioning was to establish or prove past events potentially relevant to a later prosecution, the statement L.P. made to his preschool teacher is testimonial in nature, and its admission into evidence violated Clark's right to confront witnesses under the Sixth Amendment to the United States Constitution.


Statements to Private Actors Aren't Testimonial 

Matthew E. Meyer, of the Cuyahoga County Prosecuting Attorney's Office, Cleveland, contended that one of the reasons why the primary purpose test is so difficult to apply in this case is that the court's other primary purpose cases involved state actors rather than private parties.

The primary purpose test asks whether an out-of-court declarant made a statement with a primary purpose of creating an out-of-court substitute for trial testimony.

The Supreme Court's prior cases applying the primary purpose test have involved law enforcement actors, and there should be a threshold inquiry as to whether someone asking a declarant questions was a law enforcement actor, Meyer said.

Speaking as a “boots-on-the-ground trial prosecutor,” Meyer said this threshold inquiry will lead to much more predictable results than endeavoring to apply the primary purpose test in cases involving private actors.

The Department of Justice, appearing in the case as amicus curiae, didn't support the state's bright-line rule for private parties, but it did support the state's argument that the teacher's purpose in questioning the child was primarily to address the immediate needs of the child rather than to gather evidence in anticipation of a later criminal prosecution.

Assistant to the Solicitor Ilana Eisenstein, Washington, said that once one strips away the question about the teacher's reporting obligation, one can see that the questions the teacher asked were aimed at responding to the child's needs rather than gathering evidence.

“Fundamentally, the type of fluid, informal, spontaneous conversation between the teachers and the students is far from resembling the type of core confrontation clause testimonial statements,” Eisenstein said.

State Has Stacked the Deck 

Professor Jeffrey L. Fisher, of the Stanford Law School Supreme Court Litigation Clinic, Stanford, Calif., appeared for the defendant. He maintained that the system Ohio has in place is—contrary to the prosecutors' arguments—precisely the type of scheme targeted by the confrontation clause: a system designed to create hearsay statements for use as a substitute for live testimony in later proceedings.

Fisher noted that Ohio has (1) a statute that makes children incompetent to testify, (2) a hearsay rule under which the out-of-court statements of these children are admissible without any opportunity for cross-examination, and (3) a reporting system in which teachers and other adults are directed to elicit these confrontation-proof statements from children for later trials.

“All we are asking for is that a state not be allowed to have it both ways,” Fisher said. A state shouldn't be allowed to prohibit an accused from cross-examining a child on the ground that the child's statements in court are unreliable, and at the same time allow prosecutors to automatically present that child's identical statements in court, Fisher argued.

He also pointed out that tender years hearsay exceptions are of relatively recent vintage (the 1980s) when compared to the hearsay exceptions addressed in the court's other cases.

Justice Ruth Bader Ginsburg asked Ohio's Meyer to address the “anomaly” of holding a child incompetent to testify but competent to make the same statement out of court.

The prosecutor responded that “it would be a mistake” to rule that a child's incompetence to testify in a trial setting “means that nothing he has ever said on planet Earth could be taken as a reliable statement.”

“Any parent knows,” Meyer said, that some things that a 3-year-old says can be relied upon, and other things can't.

Justice Elena Kagan posited a hypothetical scenario involving an older child in which it is clear that both the teacher and the child—unlike the 3-year-old in this case—understand that the child's statements will be sent to police.

Eisenstein said that when a teacher is the one who is asking the questions, the courts can presume that the teacher's intent is to protect the child rather than to collect evidence for a criminal prosecution.

When Chief Justice John G. Roberts Jr. asked about the basis for this assumption, the prosecutor turned to the facts of this case, including the teacher's need to determine whether to allow the child to go home with the defendant at the end of the day.

Too Close to Call 

Roberts and Justices Anthony M. Kennedy, Stephen G. Breyer, and Samuel A. Alito Jr. have generally opposed extending defendants' Crawford cross-examination rights in the court's prior cases.

Justice Clarence Thomas has taken an approach that focuses on the solemnity and formality of the out-of-court statements.

In contrast, Ginsburg, along with Kagan and Justices Antonin Scalia and Sonia Sotomayor, have supported broader interpretations of Crawford rights.

The oral argument did not provide much reason to believe the justices will line up differently in this case, at least with respect to the issue of whether the child's statements were testimonial.

Court May Look to Due Process, Therapeutic Exams 

On the steps of the Supreme Court building following oral argument, Professor Richard Friedman, of the University of Michigan, Ann Arbor, told Bloomberg BNA, “I wouldn't be surprised if the court said there was no confrontation clause violation in this case, but its the due process clause that applies here.”

Friedman is one of the principal architects of the confrontation framework that the justices adopted in Crawford. The court's opinion in Crawford specifically cited Friedman's writings on the topic when it justified its decision to abandon the reliability approach that Crawford replaced.

Friedman's comment about the due process clause coming into play was based on remarks by some of the justices that the tension in this case is related to concerns other than those protected by the confrontation clause.

For example, Breyer observed that “[t]his case involves tragedy either way”:

It's a tragedy to abuse children. It's a tragedy to put the wrong person in jail on the basis of unreliable testimony. Now with that kind of tragedy, it seems tailor-made for the due process clause, allowing states to experiment, allowing the bar to work out some of the things [the defense] say[s].


“What's at issue here to me,” Breyer revealed, “is the problem of not having the confrontation clause swallow up the 30 [hearsay] exceptions which are necessary in many instances for the justice of a trial.”

Kennedy, too, brought up the possibility of regulating this type of evidence through the due process clause.

Speaking more generally, Friedman said he was encouraged that none of the justices seemed to be interested in the state's proposal for a bright line between private individuals and state actors. Friedman noted that “no one appeared ready to say ‘Let [the statements] in,' and to forget about it. They said look at due process.”

Friedman insisted that children, even if not competent to testify, remain a significant source of evidence of crimes against children. In an amicus brief, he proposed an alternative to the cross-examination of children to provide defendants with confrontation. This alternative involves having the children interviewed in a therapeutic environment by an expert with input from the defense.

Kennedy asked about this possibility at oral argument, and Fisher responded that it would be a better system than the one that Ohio has in place.

To contact the reporter on this story: Hugh B. Kaplan in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

Transcript of oral argument at


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