What if a child can’t testify? The Supreme Court will decide

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Supreme Court - courtesy of the United States Department of Agriculture

Supreme Court - courtesy of the United States Department of Agriculture

Last week, the United States Supreme Court heard arguments in a case that will have significant implications on child abuse prosecutions. Here is a snapshot of what it’s all about…

On March 17, 2010, a three-year-old boy arrived at day school with visible whip marks on his face and upper back. When a concerned teacher asked the young boy what had happened, he responded that “Dee Dee” had caused the injuries.   The school immediately contacted law enforcement and it was discovered that the mother’s boyfriend, Darius Clark (“Dee Dee”) had not only abused the three-year-old boy, but had also beaten and burned his 22-month-old sister.

During the trial, the judge ruled that the three year old was not allowed to testify due to his young age. However, the teacher who initially spoke to the child testified and told the jury what the child had said regarding being hit by “Dee Dee”.   Darius Clark was convicted of these horrific crimes and sentenced to prison for 28 years. Unfortunately, that is not the end of the story.

Clark’s conviction was reversed by the appellate court, which ruled that since the child was not able to testify, the teacher’s testimony about what the child had disclosed violated the defendant’s constitutional right to confront his accuser. The Ohio Supreme Court upheld the reversal and the case eventually crawled its way up to the United States Supreme Court.

The Law

Knowing that most reading this post are not lawyers (that’s not necessarily a bad thing!), I will do my best to keep this explanation of the law as simple as possible. ‘Hearsay’ is defined as any out of court statement being admitted in court for the purpose of proving the matter asserted in the statement. For example, I mention to a friend that I just ate a red apple. My comment is considered hearsay if that friend comes into court and testifies about what I said in order to prove that I actually ate a red apple. Hearsay statements are generally considered to be less reliable than the original statement. The thought is that it’s more reliable to call me into court to testify about eating the red apple since it provides the defendant the ability to actually cross-examine me about the reliability of my original statement.

In 2004, the U.S. Supreme Court held a “testimonial” hearsay statement can only be admitted in court if the defendant has had the opportunity to “cross examine” the one who made the original statement. The Court held that this opportunity to “cross-examine” is a constitutional right of every defendant. In short, the Court ruled that a “testimonial” hearsay statement is not admissible if the original declarant doesn’t testify in the trial. By way of illustration, if a robbery victim reports the crime to a police officer but dies before trial, the police officer would not be able to testify about what the victim reported.

Supreme Court - courtesy of the United States Department of Agriculture

Supreme Court – courtesy of the United States Department of Agriculture

By now, you may be asking yourself, what did the Court mean by the term “testimonial”. If so, that’s a great question! Unfortunately, the Court did not provide a specific definition for what is a ‘testimonial’ statement? However, it did provide some clues. Amongst other things, it mentioned that a statement is ‘testimonial’ “when it is made “under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” For example, statements made to judges or even police officers will often be classified as ‘testimonial’ as such statements are often used in later trials. In recent years, the Supreme Court has narrowed its definition of ‘testimonial’ as it relates to statements made to law enforcement. The Court has ruled that a statement provided to police is not ‘testimonial’ if its “primary purpose” is to “enable police assistance to meet an ongoing emergency”. For example, a statement given to a police officer at a crime scene will most likely not be ‘testimonial’ if its “primary purpose” is to assist law enforcement during an emergency. On the other hand, a statement is considered ‘testimonial’ if there is no ongoing emergency and the “primary purpose” of the interrogation is to “establish or prove past events potentially relevant to later criminal prosecution.” It is very important to note that subsequent court decisions have found that any person acting as an agent of law enforcement is considered to be “law enforcement” when determining whether a statement is ‘testimonial’.

The most significant implication of this ‘testimonial’ hearsay rule is that it requires a child to testify in court as a condition of admitting any out of court statement that child made to a law enforcement officer. Due to the fact that some children have a very difficult time testifying in court, the determination of who constitutes law enforcement can have significant implications for child abuse prosecutions.

The Case

At this point, you may be wondering what’s the big deal about the Clark case. It’s a big deal because the Supreme Court will decide whether to significantly expand the definition of “law enforcement” for the purpose of the ‘testimonial’ hearsay rule. The Court will decide whether mandated reporters are now considered agents of law enforcement and thus whether a child’s disclosure to a mandated reporter is defined as ‘testimonial’. Such a ruling will severely limit the admissibility of these very powerful out of court statements made by children who are often incapable of testifying in court. As a prosecutor, I remember cases where a very young child or a very emotionally vulnerable child made a compelling disclosure of abuse to someone they trusted in a private place. Oftentimes, those same children were not emotionally equipped to repeat the same disclosure to a prosecutor, judge, and jury in a crowded courtroom.

If a child’s abuse disclosure to a mandated reporter is considered ‘testimonial’, prosecutors will have an even more difficult time proving child abuse cases, especially when the victim is very young or emotionally vulnerable. As a result, more offenders will avoid prosecution and will be emboldened to continue victimizing children. My fear is that such a ruling will encourage offenders to focus on victimizing younger and more emotionally challenged children, knowing that many of their out of court disclosures won’t be admitted since they are less able to testify in court.

I remain hopeful. I remain hopeful that the Supreme Court will rule that designating someone as a mandated reporter does not automatically make him or her an agent of law enforcement. If anything, it makes them an agent of a society that cares for the protection and welfare of a child. Such a ruling will continue to allow some of the most powerful pieces of evidence to continue being considered by juries in cases that are the most difficult to prosecute. Such a ruling will respect the constitutional rights of defendants and allowing them to continue cross-examining any witness who testifies about a child’s out of court statement. Ultimately, such a ruling will continue to provide a voice to little ones who often find themselves silenced when sitting in an intimidating courtroom, filled with strangers, and only feet away from their offender.

My hope is that more of us  will understand the importance of this case and will step forward to speak on behalf of children who could be silenced in the courtroom by the decision of nine justices. Let’s be hopeful that they do the right thing.  In the meantime, let’s continue to be committed to reporting suspected abuse, regardless of whether or not a law requires us to do so.



  • Keith Bkankenship

    Would you advocate extending this hearsay exception to forensic interviews conducted at child advocacy centers?

  • Keith Blankenship

    Typo by me re;surname.

  • Sheryl Essenburg

    Keith, I don’t know if all states have addressed that but in Illinois, CAC forensic interviews have been ruled to be testimonial. They are admissible only when the child testifies.

  • samuel Johnston

    Hi Boz,
    I practice law in Alabama. A woman came to my office and told me that her ex-husband’s girlfriend had reported her as a child abuser – out of spite. Over her protest, her child was taken out of school and interviewed, and she was called in from work for an interview. Now the process was being repeated, so she consulted me. I called the Agency in question and asked if the complainant was the girlfriend. They stonewalled me, maintaining that complaints were taken confidentially. I then called the attorney that represented the agency, and told him that my client would no longer comply with the agency’s directives, without a Court Order. The Agency backed down.
    Much as I wish that all those who abuse children be accountable, I fail to see how 2 and 3 year olds can be reliably interviewed by anybody. Good intentions do not insure good results.
    When my daughter was around age four, our local TV channel bombarded the children’s program with the “Patch the Pony” campaign, telling children to beware of strangers. My daughter became so frightened, that she refused to get out of the car unless we accompanied her to the door. Children often do not “get” the message that we think we send. Their testimony is simply not reliable, much as we wish it were.

  • Garson Abuita

    Was there other evidence against the defendant or was the child’s report to the teacher the sole evidence of abuse? It sounds like the latter. If it had been the former, you’d think limiting instructions could have been given to the jury not to take it for the truth of the matter but only to show how the investigation developed. Hopefully the Supreme Court will decide that mandated reporters like teachers are at least not per se agents of law enforcement. Or that this was not testimonial — it was a “cry out” to a teacher.

  • Keith Blankenship

    Sheryl: That is similar to Virginia, i.e. one might get it in if the child took the stand. Frustratingly, it seems that someone has been giving children and their parents the idea that if they participate in the forensic interview, the child’s testimony won’t be required at trial. Do you see that in your jurisdiction?

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