By Justice Paul E. Pfeifer
July 11, 2014
In Ohio, state law imposes a duty on all school officers and employees – including administrators and employees of daycare centers – to report actual or suspected child abuse or neglect. That’s why a preschool teacher at the William Patrick Day Head Start Center in Cleveland notified her supervisor when she spotted the left eye of a three-old boy in her care. The incident eventually gave rise to a case that came before us – the Ohio Supreme Court.
The case involved a man named Darius Clark, who lived with his girlfriend, T.T., her three-year-old son, L.P., and her two-year-old daughter, A.T. On March 10, 2010, Clark dropped off L.P. at the daycare. When a teacher observed that L.P.’s eye appeared bloodshot and bloodstained, she asked what happened.
At first the boy said nothing, but then replied, “I fell.” Another teacher asked L.P “Who did this? What happened to you?” According to that teacher, L.P. “seemed kind of bewildered. He said something like Dee, Dee.”
The school reported the suspected abuse to the Department of Child and Family Services. A social worker was at the school questioning L.P. when Clark arrived. Clark denied responsibility for L.P.’s injuries and left with the child.
The next day, a social worker took L.P. and A.T. to the hospital. A physician determined that L.P. had bruising in various stages of development and abrasions consistent with having been struck by a linear object and that A.T. had burn marks, a swollen hand, and a pattern of sores at her hairline. The physician suspected child abuse and estimated the injuries had occurred within the past month.
A grand jury indicted Clark on several counts relating to child abuse and domestic violence. The trial court declared L.P. incompetent to testify in the trial, but it denied Clark’s motion to exclude L.P.’s out-of-court identification statements. Seven witnesses testified regarding L.P.’s statements, including a police detective, social workers, teachers, and the children’s maternal grandmother and great-aunt.
The jury found Clark guilty, and the court sentenced him to a 28-year prison term.
Clark filed an appeal, claiming that the trial court violated his right to confrontation by allowing witnesses to testify about the statements L.P. made to his teachers. The right to confrontation derives from the Sixth Amendment of the United States Constitution, which provides: “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…”
The court of appeals concluded that the trial court abused its discretion when it permitted the detective, the social workers and the teachers to testify regarding L.P.’s statements, because they were testimonial and their admission violated the Confrontation Clause. The court of appeals reversed Clark’s convictions. After that, his case came before us for a final review.
Teachers and daycare employees have a duty to report abuse in part because they are among the “most likely and qualified person to encounter and identify abused and neglected children” and have “the necessary training or skill to detect the symptoms of child abuse.”
In a 2004 case we noted that “while…the primary purpose of reporting is to facilitate the protection of abused and neglected children rather than to punish those who maltreat them, it is clear that the General Assembly considered identification and/or prosecution of the perpetrator to be a necessary and appropriate adjunct in providing such protection…”
Thus, prosecution for criminal acts of child abuse is expressly contemplated by the reporting law as a means of protecting children. In writing the majority opinion for this case, Justice Terrence O’Donnell said, “Although a teacher’s questioning of a child about suspected injury is consistent with a duty to report potential abuse and arises from a concern to protect a child, the United States Supreme Court’s Confrontation Clause analysis requires that we ascertain the ‘primary purpose’ for the questioning.”
The United States Supreme Court has held that the Sixth Amendment “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Because the Sixth Amendment guarantees the accused’s right to confront those who “bear testimony,” the Confrontation Clause bars admission of testimonial statements unless the witness appears at trial or, if the witness is unavailable, the accused had a prior opportunity for cross-examination.
To determine whether statements are “testimonial,” the court formulated the “primary-purpose test.” “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”
Applying the primary-purpose test to L.P.’s statement compels the conclusion that it was testimonial. No ongoing emergency existed, L.P. hadn’t complained about his injuries nor did he need emergency medical care. Rather, his teachers acted to fulfill their duties to report abuse.
His teachers immediately suspected child abuse, separated L.P. from other students and, in a formal question-and-answer format, sought facts concerning past criminal activity to identify the person responsible. In doing so, they drew out statements that “are functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’”
Thus, we concluded, “the primary purpose of that inquiry was not to extricate the child from an emergency situation or to obtain urgently needed medical attention, but rather was an information-seeking process to determine what had occurred in the past and who had perpetrated the abuse, establishing past events potentially relevant to later criminal prosecution.”
L.P.’s statements indentifying Clark as responsible for his injuries were therefore testimonial and should have been excluded from evidence in accordance with the Confrontation Clause.
We therefore concluded – by a four-to-three vote – that the admission of L.P.’s statements violated Clark’s right to confrontation. We affirmed the judgment of the court of appeals and sent the case back for a new trial.