In 2004, in Crawford v. Washington, 541 U.S. 41, the U.S. Supreme Court barred the use of “testimonial statements” by nontestifying witnesses unless the witness was unavailable to testify and the defendant had a prior opportunity for cross-examination. Crawford created the “primary purpose” test—a statement became testimonial if the purpose of the conversation was the creation of an out of court substitute for trial testimony. Crawford however did not provide an exhaustive definition of “testimonial statement”. In any event, it was thought that Crawford would hamper prosecutors generally, especially when the complaining witness was a child.

Attorney talking to a child witness in California

Last week the Supreme Court clarified some of the uncertainty created by Crawford in an opinion that will have serious implications for the prosecution of crimes in which a child is a nontestifiying witness, including prosecutions where the nontestifying witness is the child/victim. The facts ofOhio v. Clark, 576 U.S. _____ , 2015 U.S. LEXIS 4060, are straightforward. L.P. was a three year old preschooler who along with an 18 month old sister was being cared for by Clark, while their mother was away prostituting herself. One day, L.P.’s pre-school teachers noticed marks on him that led to their asking L.P. what had happened. L.P.’s answers revealed that he had most likely been injured by Clark. L.P.’s answers to the teachers’ questions were ruled nontestimonial and were admitted. Clark was convicted. The conviction was reversed by the state appellate court and affirmed by the Supreme Court of Ohio based on Clark’s argument that L.P.’s statements to the teachers were “testimonial” and barred by Crawford.

In a unanimous decision (albeit with three Justices concurring only in the judgment but not in the majority’s reasoning), the Court reversed and ruled that L.P.’s statements were not testimonial and could be admitted. In doing so the Court addressed several significant issues. With regard to the “primary purpose” test the Court concluded that the teachers were not gathering evidence for the future prosecution of Clark but were questioning L.P. to deal with an ongoing emergency involving suspected child abuse. Therefore, the primary purpose of the questioning was the protection of L.P. from future imminent harm at the hands of an abuser. This made L.P.’s answers nontestimonial and admissible under Crawford. In so far as the age of the nontestifying witness was relevant the court noted that as a three-year-old L.P. could hardly be seen to be making statements that he knew would be used by police or prosecutors.

In addition, the Court shed some light on two other issues that arise in Crawford cases—who is eliciting the statements and where is the questioning taking place. In this regard the court noted that the fact that the teachers were “private persons” and not law enforcement officials and that L.P. was questioned in a school and not in a police station lent support to the conclusion that the statements were not created as a substitute for trial testimony.

Clark will be carefully scrutinized, especially by those who are involved in the investigation and prosecution of child abuse.