the Confrontation Clause of the Sixth Amendment

Ohio v. Clark

Despite passing on the chance to apply First Amendment principles in Elonis, the Supreme Court often must apply Constitutional scrutiny to criminal proceedings. One important case addressed a previously unresolved question about the scope of protection offered by the Confrontation Clause in the Sixth Amendment. In Ohio v. Clark, a man convicted of child abuse sought to have certain statements used as evidence presented against him at trial deemed inadmissible because the speaker was a minor child (the victim) who was ruled not competent to testify and therefore not subject to cross-examination by the accused. [Read our Preview here.] The Court considered whether or not statements made in this circumstance—that is by a minor to adults such as teachers or day care workers who have a statutory obligation to investigate suspected child abuse—were primarily “testimonial” in nature. If so, then the Confrontation Clause bars their admission into evidence, and they cannot be used against the defendant. Both the state appellate court and the Ohio Supreme Court ruled that the minor’s statements were testimonial and therefore should not have been admitted into evidence. All nine Justices disagreed, though their reasoning differed substantially. Justice Alito authored the majority opinion, which was joined by Justices Breyer, Kagan, Kennedy, Sotomayor, and Chief Justice Roberts. The majority drew its definition of what constitutes a testimonial statement from the 2011 case of Michigan v. Bryant: testimonial statements are those where the “primary purpose” of the conversation was intended to “creat[e] an out-of-court substitute for trial testimony.” The Court explained that just because a statement may meet the primary purpose test, that does not necessarily mean the Confrontation Clause bars it from introduction into evidence, ruling that the statements at issue in this case were not testimonial because they occurred in the context of an ongoing emergency regarding suspected child abuse. The teachers’ questions and the child’s answers “were primarily aimed at identifying and ending the threat” of additional harm to the child, and there was “no indication that the primary purpose of the conversation was to gather evidence for Clark’s prosecution.”