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The Oklahoma Legal Group Blog

"He Hurt Me." Is It Hearsay or Testimony When a Student Tells a Teacher About Child Abuse?

Adam Banner - Wednesday, September 17, 2014

A case pending before the United States Supreme Court could have a significant impact on defendants in child abuse cases.

While people in general have a moral obligation to report suspected child abuse, certain professionals, including doctors and teachers, are required by law to report suspected abuse. This puts them in a unique situation, serving as both civilians and as law enforcement agents, according to a state court ruling in Ohio v. Clark. Because of this, a child’s statements to a teacher may be considered testimony, and therefore subject to the Confrontation Clause of the United States Constitution. While the Ohio Court ruled that a child’s statements to a teacher are testimonial, other state courts have ruled opposite. These courts find that teachers and day care workers are not acting as law enforcement in questioning children about suspected abuse, and therefore, the child’s statements are neither testimonial nor subject to the Confrontation Clause.

Now, with state courts at odds on this issue, the case is headed to the Supreme Court, with the petition to be considered at the Court’s “long conference” at the end of this month.

To understand the petition before the Supreme Court, let’s look at the details of the case.

Darius Clark was arrested and charged with five counts of felonious assault, two counts of endangering children, and two counts of domestic violence involving his girlfriend’s 3-year-old son and 2-year-old daughter. Clark first came under suspicion when a day care teacher noticed an injury to the 3-year-old’s eye and asked him what happened. The boy replied, “I fell,” but seemed withdrawn, and the teacher was not satisfied with his answer. Upon returning to a brighter classroom, the teacher noticed additional injuries and pointed them out to the class’s lead teacher. That teacher asked, “Whoa, what happened? Who did this?” At that point, the preschooler implicated Clark.

Although Clark was able to leave the day care with the child, a social worker found him the next day at his mother’s house. The social worker confirmed the injuries to the 3-year-old child and identified significant injuries to the boy’s younger sister. The girl was transported to the hospital where a doctor ruled her injuries consistent with child abuse.

Prior to Clark’s trial, the 3-year-old was ruled incompetent to testify, yet his testimony to the teacher was admitted as evidence. Clark argued that the child’s statement was improperly admitted because it was testimonial in nature, but the defense was deprived the right to cross-examine, thereby violating the defendant’s Constitutional rights under the Confrontation Clause of the Sixth Amendment.

The majority opinion of the Supreme Court of Ohio agreed, issuing the following two findings in the Syllabus of the Court:

1. At a minimum, when questioning a child about suspected abuse in furtherance of a duty pursuant to R.C. 2151.421, a teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes.

2. Statements elicited from a child by a teacher in the absence of an ongoing emergency and for the primary purpose of gathering information of past criminal conduct and identifying the alleged perpetrator of suspected child abuse are testimonial in nature in accordance with Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and State v.Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534.

Not every justice on Ohio’s Supreme Court agreed, and the ruling hinged on a 4-3 decision. In the minority position, Chief Justice Maureen O’Connor dissented. She argued that no reasonable person would assume that a teacher’s questioning of a child about possible abuse “served a prosecutorial purpose rather than a protective one.”

She continued, “The majority decision creates confusion in our case law, eviscerates Evid.R. 807, and threatens the safety of our children. Not surprisingly, it is also wrong as a matter of federal constitutional law.”

Now, at the end of the month, the U.S. Supreme Court will consider whether the Ohio court’s ruling is, in fact, a violation of federal constitutional law, or whether the court was right in determining that teachers and day care workers serve a dual role as both educators and law enforcement officers in investigating child abuse.

As a criminal defense attorney in Oklahoma, I’m interested in the outcome of this case. Our state in 2012 reported a child victim rate of 10.3 of every 1,000 children, which placed Oklahoma 20th in state child abuse rankings. Whether the statement of a child who does not testify is considered hearsay or testimony subject to cross-examination could have a significant impact on how these child abuse cases are handled at trial.

 






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