1. Does an individual’s obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause?
2. Do a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause?
Lower court opinion: State v. Clark, 999 N.E.2d 592 (Ohio 2013)
In all fifty States, certain individuals—usually teachers, social workers, and medical professionals—have a mandatory duty to report suspected child abuse that they notice in the course of their work. (Wisconsin’s mandatory reporting law is § 48.981.) In this case, the Ohio Supreme Court held that this mandatory-reporting duty turned daycare teachers in this case, who asked questions of a child aimed at inquiring into possible criminal acts, into “agents of the state for law-enforcement purposes” and that the child’s out of court statements to the teachers qualified as “testimonial” under the Confrontation Clause, even though there was no police involvement in the encounter between the child and the teachers. Other courts considering this issue have held that a mandatory reporting statute doesn’t transform a person subject to the statute into a law enforcement officer when there is little or no police involvement, so a child’s statement to such a person is non-testimonial and not subject to the Confrontation Clause, e.g., Seely v. State, 282 S.W.3d 778 (Ark. 2008); State v. Spencer, 169 P.3d 384 (Mont. 2007); State v. Krasky, 736 N.W.2d 636 (Minn. 2007). Wisconsin appellate courts have not addressed this issue, so the decision in this case will be important to establish whether, and when, a child’s statements to a mandatory reporter might become testimonial for purposes of the Confrontation Clause.
Beyond this narrow issue, however, the Court may take the opportunity to provide more explanation of when a statement is “testimonial.” Crawford v. Washington, 541 U.S. 36, 68 n.10 (2004), declined to provide a “comprehensive definition” of this key concept, leaving it for another day. So far that day hasn’t arrived, and in the meantime there’s been some, but not much, case-by-case development. We do know that not every statement to police accusing someone of a crime is testimonial, as the concept is roughly limited to statements that have the primary purpose of establishing or proving past events relevant to a criminal prosecution, e.g., Davis v. Washington, 547 U.S. 813, 822 (2006). Thus, for instance, statements to police who ask questions to deal with an ongoing emergency aren’t testimonial because the primary purpose is not criminal prosecution, Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). And in Williams v. Illinois, 132 S. Ct. 2221 (2012), the Court’s last foray into the Confrontation Clause, the Court was deeply and seemingly irreconcilably divided by vastly different views of the meaning of testimonial. Four dissenting justices applied the established purpose test, while a four-justice plurality applied a very limited test requiring the statement to have the primary purpose of accusing a targeted individual and to be in some way “formalized”; one justice (Thomas) agreed with the established purpose test, but would hold a statement is testimonial only if it is sworn or certified. (We offer further analysis here, and Confrontation guru Richard Friedman’s take on the case is here.)
Perhaps the Court can resolve Clark’s case by grounding its analysis on the greater latitude allowed for the admission of statements by children, as suggested by one commentator; but it may be that this will be the case in which five justices coalesce around a single, more restrictive notion of “testimonial” that has been in the offing as more justices have seemed to step away from Crawford. A case to watch, then, because the decision could sweep considerably broader than the simple question of whether statements made by children to mandatory reporters are testimonial.
