Teacher's Testimony at Trials

            The U.S. Supreme Court held in Ohio v. Clark that a three-year-old's statements to his preschool teachers that his mother's boyfriend hit him could be admitted at trial even though the child did not testify.  At issue is the "confrontation clause" of the Sixth Amendment, which states that a criminal defendant has the right "to be confronted with the witnesses against him."

 

            The case arose when teachers noticed that the young boy was bruised and withdrawn.  The child reported to the teachers that his mother's boyfriend caused the injuries, and in further investigations they found that the boy's younger sister also showed signs of abuse.  The teachers testified at the boyfriend's trial about the child's report of abuse.  The child did not testify because of the Ohio state law presumption that children under age ten are incompetent to testify in court.  

 

            The Ohio Supreme Court found that the teachers' testimony about the child's statements violated the defendant's Confrontation Clause rights.  The Court decided that the teachers should be treated as law enforcement agents because of their statutory duty to report suspected child abuse or neglect.  Then the Ohio Court stated that the primary purpose of the teachers' questioning "was not to deal with an existing emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution."  In the Court's view, the teachers acted as agents of the state under the mandatory reporting law, and sought facts concerning past criminal activity to identify the person responsible, eliciting statements that are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.

 

            But the United States Supreme Court reversed Ohio's decision and held that the child's statements were not "testimonial" under the Sixth Amendment because they were made in response to his teachers' questions about his injuries and not for the purposes of criminal law enforcement.  To be testimonial, the Court looks to the 2004 Crawford v. Washington decision where it was held that witnesses under the Confrontation Clause are those "who bear testimony," where testimony is defined as "a solemn declaration or affirmation made to the purpose of establishing or proving some fact."  Applying that definition in the Crawford decision itself, the U.S. Supreme Court held that statements by a witness during police questioning at the station house were testimonial and thus could not be admitted.  But the Court goes on in Ohio v. Clark to explain the "primary purpose" test growing out of this constitutional line of reasoning:  "statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.  They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."  The Court discussed the post-Crawford jurisprudence requiring consideration of "all of the relevant circumstances" and "the informality of the situation and the interrogation."  The opinion stated that it was finally answering the question it has repeatedly reserved:  whether statements to persons other than law enforcement officers are subject to the Confrontation Clause. 

 

          The Court found it easy to determine that the primary purpose of the teachers securing the child's statements was not for the prosecution of the assailant, but to assess the safety of the student and how best to handle any threats to the student's safety.  The Court said the conversation was informal and spontaneous, and indicated that in most instances, statements of non-testifying young children to teachers can be admitted at trial without violating the Confrontation Clause.  The Court stated in dicta that mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.

 

            Justice Scalia was joined in a concurrence by Justice Ginsberg, where he protests the majority opinion that he describes as undermining the importance of Crawford, and where he criticizes the dictaon legal points as misleading so much so that he must concur the "aggressive hostility to precedent that it purports to be applying."  Justice Thomas expressed sentiments again showing frustration with the lack of clear guidance from the majority on the broader question of statements made to private persons and not just limited to those made by very young children to teachers.

 

            School district personnel often wonder to what extent they will be involved in the legal proceedings related to their students, and this case suggests that it will be constitutional for teachers to testify about what young children report to them in lieu of those young children taking the stand themselves.  When district personnel are asked to testify, a very specific legal analysis should be performed to assure that personnel are in compliance with FERPA and state Student Record Act requirements, even if the testimony is constitutional.  School districts must often educate prosecutors and other law enforcement officials on the multi-faceted requirements when asked to offer any information about students or their lives.