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June 18, 2015

SCOTUS narrows reach of Confrontation Clause via Ohio v. Clark

The US Supreme Court has just handed down its opinion in the state criminal case of Ohio v. Clark, No. 13-1352 (S. Ct. June 18, 2015) (available here). Justice Alito wrote the opinion for the Court, which garnered no dissents but did prompt separate concurrences by Justices Scalia (joined by Justice Ginsburg) and Justice Thomas. The Court's opinion begins this way:

Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town.  A day later, teachers discovered red marks on her 3-year-old son, and the boy identified Clark as his abuser.  The question in this case is whether the Sixth Amendment’s Confrontation Clause prohibited prosecutors from introducing those statements when the child was not available to be crossexamined.  Because neither the child nor his teachers had the primary purpose of assisting in Clark’s prosecution, the child’s statements do not implicate the Confrontation Clause and therefore were admissible at trial.

Notably, Justice Scalia's concurrence reads a lot more like a dissent, as evidenced by this passage early in his opinion:

I write separately, however, to protest the Court’s shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington, 541 U.S. 36 (2004).  For several decades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore “‘indicia of reliability.’”  Ohio v. Roberts, 448 U.S. 56, 66 (1980).  Prosecutors, past and present, love that flabby test.  Crawford sought to bring our application of the Confrontation Clause back to its original meaning, which was to exclude unconfronted statements made by witnesses — i.e., statements that were testimonial.  541 U.S., at 51. We defined testimony as a “‘solemn declaration or affirmation made for the purpose of establishing or proving some fact,’” ibid.—in the context of the Confrontation Clause, a fact “potentially relevant to later criminal prosecution,”  Davis v. Washington, 547 U.S. 813, 822 (2006).

June 18, 2015 at 10:05 AM | Permalink


Justice Thomas's concurrence is not quite as scorching as the Scalia/Ginsburg one, but he also warns against Justice Alito's dicta trying to undermine Crawford.

Posted by: John Thacker | Jun 18, 2015 10:28:04 AM

Such games are tedious. It's a narrow issue; don't use it like that.

In a non-criminal case involving signs, also, the result was unanimous but six justices (three concurring only in result) concurred. Should be a way to avoid that sort of thing.

Posted by: Joe | Jun 18, 2015 11:03:28 AM

I am not surprised but still sickened. So it is ok to use children as a weapon but only for one side. Teachers are not neutral observers.

@Joe the reason that the three concurrences read like dissents is because they are dissents. The problem is that no one wants to look like they are "anti-child". In my view, this fact ALONE tell you everything one needs to know about the cultural milieu in which this trial was held. When fear rules the day even at the highest court in the land, how is anyone to get a fair hearing?

Posted by: Daniel | Jun 18, 2015 12:53:11 PM

They dissented in reasoning but they concurred in judgment. So, no, not a "dissent." This is not really that complicated. I can agree with someone about going to let's say a restaurant, but disagree with them on the reasons why.

The issue here was the reach of the Confrontation Clause not an open-ended "fair hearing" concern. In respect to that clause, there has to be a certain "testimonial" character. This is not only about children. Scalia was upset with the majority watering down stricter standards there in general and past conflicts there did not just concern children witnesses. He has in past cases strongly supported confrontation even for alleged child abuse victims required to face their alleged abusers. "No one"?

There is no special "cultural milieu" in the understanding that three year olds aren't "witnesses" for purposes of the clause that goes only one way here. Teachers have an obligation under the law to deal with possible child abuse. I'm very unsure if this translates them into agents of the state for Confrontation Clause purposes.

The resulting information could -- depending on the case -- be used by various sides. Here, it was used for the prosecution. Where did the opinion say that the defense could not use the unsworn statements for its own purposes? A teacher is not neutral, but in different cases would have different views. Some, e.g., might be more likely to believe certain parents over others. The resulting statements therefore very well can help the defense.

Posted by: Joe | Jun 18, 2015 2:20:05 PM


You don't have a clue, do you? (that's a rhetorical question, because that's how clueless you are.)

Posted by: Daniel | Jun 18, 2015 3:06:51 PM

well I guess parents can't complain about teachers anymore....they'll just make something up and say the kid said it.

Posted by: j | Jun 18, 2015 8:42:52 PM

Daniel doesn't actually want to substantively respond to my analysis. Again, a teacher can be biased in various directions. Refutation? None.

Also, the case involved a limited question. If someone wants to say that the defense should have a chance to have their own child therapist expert interview the child if such evidence is admitted, e.g., to have a chance to rebut it ... a "fair trial" due process claim, I would find it reasonable.

Finally, again, a claim that "no one" wants to look anti-child was made. Scalia repeatedly, including in dissent, demanded a child confront his/her accusers, even when confronting a father accused of molesting them. Again, no response to the argument that hyperbole is afoot.

Posted by: Joe | Jun 19, 2015 1:19:20 PM

It is impossible to get a conviction for molesting a child without a confession or without a recording of the crime. The child may be interviewed by video conferencing. It does not matter. The cross examination may begin with the question. Do you believe in Santa Claus (my famous cousin)? Once the child says, yes. Game over. The defense will then go on to show how the interrogators implanted a false memory into the mind of a person who believes mythical characters are real.

Adults and children making false allegations to any government official, which includes public school teachers, should be severely punished, preferably with cheap and effective caning. Teachers are mandated reporters. They have no choice, or they face criminal prosecution for failure to report. Nor are they supposed to make any judgement about whether any act is abusive. They are KGB snitches.

As with all things vile feminist lawyer, there is a huge racial disparity. The entire abuse industry is not to just produce government make jobs for vile feminists. It is to undermine and destroy the family, by entitling children to due process and ending all punishment. These measures have come together to destroy the black family, with its 70% bastardy. The white rate went from 5% to now, 40%.

Abuse in Delaware now includes, emotional abuse, namely any derogatory statement to the poor child victim. All people over 18 are mandated reporters, with a $10,000 for the first failure to report, and $50,000 for the second. So hear a mother say to a child, stop acting like a fool, better report her. OK, so no derogatory statements to children in Delaware. Just ignore bad behavior, to avoid rewarding it with attention. Ignoring is called emotional neglect, and must be reported.

In Pennsylvania, you set up a table at a high school football to sell hot dogs and T-shirts. You are a parent volunteer raising funds for uniforms for poor members of the team. You must get fingerprinted, and prove you are not a child abuser. I understood why when going to a UPS store and seeing a line of dozens of babysitters, parents, and others dealing with children. UPS is making $millions from this child abuse hysteria.

Posted by: Supremacy Claus | Jun 21, 2015 11:56:51 AM

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