A three year old child is brutally beaten by his mother’s boyfriend and then threatened to remain quiet or he’ll get another beating. One morning following another beating, the child goes to school with bruises on his face and is questioned by a concerned teacher. Petrified and not knowing what to do or say, the little boy eventually discloses the horrific abuse to the teacher who calls the police. It is later discovered that this boy had belt marks on his back and stomach, and bruises all over his body. Police also find his 22-month old sister with black eyes, burn injuries, a swollen hand, and two pigtails having been ripped out of their roots. The abuser, Darius Clark , is arrested and charged with aggravated child abuse. Justice seems to be having its way until shortly before the trial when the judge decides that the child isn’t capable of testifying against the defendant.
At trial, the judge did allow the teacher to testify about what the child had told her regarding being hit by the defendant. Fortunately, the defendant was convicted of these horrific crimes and sentenced to prison for 28 years. Unfortunately, just when it seemed as if justice had finally been served, the appellate court reversed the defendants’ conviction. The court ruled that since the child was not able to testify, the teacher’s testimony about what the child had reported violated the defendant’s constitutional right to confront his accuser.
Was the court saying that abused children who are unable to confront their abusers are simply out of luck? Was the court siding with those who hurt little ones? Where is the justice in that?
Fortunately, the appellate court didn’t have the last word. That last word was published last week in a Supreme Court decision getting a bit less attention than others, but no less important. A decision that has the potential to bring much needed justice to abused children around the country.
Before going further, let’s take a brief (and hopefully understandable) look at the law.
As explained in an earlier post, the Supreme Court previously held that a “testimonial” out of court statement can only be admitted in court if the defendant has had the opportunity to cross examine the one who made the original statement as required by the Sixth Amendment. In short, the Court ruled that a “testimonial” out of court statement is not admissible if the original declarant doesn’t testify in the trial. Generally, this seems like a pretty good rule that protects the accused from being convicted without having an opportunity to test the validity of the testimony and the credibility of the witness. However, there are times when such a confrontation is impossible for the witness.
Unfortunately, the Supreme Court has never specifically defined “testimonial” in relation to this issue. However, it has given us a few helpful hints. For example, it has defined a statement as “testimonial” when it leads “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 Court has held that an out of court statement is not “testimonial” if its primary purpose is to “enable police assistance to meet an ongoing emergency”. On the other hand, a statement is considered “testimonial” if there is no ongoing emergency and the primary purpose of questioning is to prepare for an upcoming hearing or trial.
Until last week, it had been unclear whether or not an out of court abuse disclosure by a child is considered “testimonial”. Such an interpretation would prohibit adult witnesses from testifying about what a child abuse victim had reported unless that same victim also testified in court. Without a doubt, this would have encouraged abusers to take whatever measures necessary to frighten children from walking into court. In short, such an interpretation would have emboldened abusers and silenced children.
The Supremes Speak
Last week, as many were waiting for decisions on the Affordable Care Act and same sex marriage, the Supreme Court released its decision in Ohio v. Clark. The Court unanimously ruled that the disclosure of abuse by the 3 year-old boy to his teacher was not “testimonial”. The Court held that allowing the teacher to tell the jury what the child had reported was not a violation of the defendant’s Sixth Amendment right to confront even when the child did not testify at trial.
The conviction of Darius Clark was reinstated. Justice served!
This decision not only brings justice to a little boy and his sister, it will also be the fuel that brings justice to many other abused children who bravely speak up, but then find themselves too young, too scared, or too fragile to testify in court against those who have hurt them. The Court made at least three points that should have a significant positive impact on the admissibility of abuse disclosures made by little ones:
- Suspected child abuse is an ongoing emergency. In deciding that the out of court statement by the 3 year old to his teacher was not “testimonial”, the Court held that the primary purpose of asking the child about suspected abuse was to identify and end a threat. In other words, the suspicions of child abuse created an ongoing emergency, which provided the basis for allowing the child’s out of court statement to be admissible in trial even though the child never testified. Defining suspected child abuse as an ongoing emergency significantly increases the likelihood that a statement by a child made in relation to abuse is not “testimonial”, and thus can be considered by the jury without requiring the child to confront the offender in the courtroom. This is good news for kids and bad news for those who hurt them!
- Statements by very young children will seldom be considered “testimonial”. In its decision, the Court wrote, “…research on children’s understanding of the legal system finds that young children have little understanding of prosecution.” Thus, it is highly unlikely that a young child makes an abuse disclosure for the primary purpose of preparing for an upcoming trial. On the contrary, the Court writes, “….a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all." This means that most out of court abuse disclosures by young children are not “testimonial” and can be admissible without requiring them to testify. This is good news for kids and bad news for those who hurt them!
- The primary purpose test is not exclusive. The Court seems to back away from making the primary purpose test the exclusive determiner on whether a child’s statement is “testimonial”. In the majority opinion, Justice Alito writes, “Thus, the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause.” The Court then proceeds to partially base its decision on historical precedent, not the primary purpose test. Alito writes, “As a historical matter, moreover, there is strong evidence that statements made in circumstances similar to those facing L.P. [3 year old] and his teachers were admissible in common law.” Though the decision leaves much room for further clarification, it is pretty clear that the Court leans towards a less restrictive approach for determining the admissibility of child statements made out of court. This is good news for kids and bad news for those who hurt them!
In order for this important decision to make a difference in the lives of children, need to make sure prosecutors read and understand it. Taking a moment out of our day to reach out to our local prosecutor’s office with a copy of this case (or at the very least, a copy of this post) could deliver very good news to a child longing for justice.
In a week of historical Supreme Court decisions, this one could very well make the most difference in the lives of hurting children. For that, I am grateful.