Analysis
Seldom do the last five words spoken in a Supreme Court argument sum up, coincidentally, the whole hour of discussion, but that happened on Monday. An Ohio prosecutor, Matthew E. Meyer of Cleveland, commented just before sitting down at the end: “It’s just not the same.” He did not mean it this way, but it wrapped up the idea that the Court will look very differently at a case when it involves a three-and-a-half-year-old boy who had been physically abused. The evident anxiety over that lad’s plight dominated the hearing in Ohio v. Clark.
The case is another demonstration of the Court’s keen interest in the meaning of the Constitution’s Confrontation Clause — the guarantee that an accused at a criminal trial can face and answer prosecution witnesses against him.
The Court, it was once again obvious, is not entirely comfortable with the interpretations it has been handing down on that clause since 2004, and the hearing on Wednesday at times seemed like a search for new clarity, perhaps some brighter lines. Prosecutors, under those readings of the clause, are not allowed to bring into a trial statements that an absent witness had said out of court, if those statements qualify as “testimonial.” But can “testimonial” be defined meaningfully?
The Court has been looking at a variety of factual scenarios, trying to sort out just what it wants “testimonial” to mean. On Monday, they encountered a new scenario: a little boy, showing up at a day-care center with serious bruises on his body and bloodshot eyes, who lays the blame on his mother’s boyfriend. He is too little to go to court, but prosecutors want the teacher who heard his story to testify in his place, and relate his accusations.
Prosecutor Meyer came to the Court with a simple proposition: because the teacher is not a police officer, and not working for the police, she should be allowed to take the stand and recount the boy’s tale. The Confrontation Clause, he argued, should only bar the use of evidence gathered by government agents if they don’t come to court. A private citizen, he meant in his closing comment, is “just not the same” as a government agent like a police officer.
But Stanford law professor Jeffrey L. Fisher, speaking for the man convicted for harming that boy, asked the Court to provide a simple opportunity: give defense lawyers the same opportunity to talk with the little boy as the teacher, the police, and the prosecutors had as they prepared evidence for the trial. There are ways to conduct an interview with even a small child, Fisher said, that will be sensitive and caring, and have a chance to test the reliability of any story the child told.
Fisher’s own suggested approach to the Confrontation Clause was that, if an adult has heard the child’s accusations out of court, and was working within a system that ultimately leads those accusations to become evidence of a crime, the Confrontation Clause should govern.
Throughout both of their arguments, and the more abbreviated appearance of a Justice Department lawyer supporting Ohio, Ilana Eisenstein, an assistant to the U.S. Solicitor General, the analysis almost continuously focused on the small boy, who is known in the case only by his initials, “L.P.”
The Justices wondered how it was that his story would be considered credible if he was too young to be a witness, and whether the Confrontation Clause even applied to a potential witness who was too little to think about helping the police find the person who hurt him. But even when the questioning turned to the role of the teachers to whom the boy told his story of abuse, the Court’s members were much more intent on trying to sort out what a teacher’s first obligation would be.
If the child’s injuries were serious, would not the teacher be most concerned about keeping the child away from the assailant, rather than getting the police involved? How would a court know what was in the teacher’s mind at the time? “The teacher’s first reaction,” Justice Ruth Bader Ginsburg suggested, “was to get that child out of harm’s way.”
What kind of questions could a teacher ask of a child that would bring out potential criminal evidence? What should a court do if half of the teacher’s motive in talking to the injured child is to report the abuse to a child services agency and half was to report it to the police? When a child is the source of criminal evidence, is it awkward or unrealistic to ask whether what he said was “testimonial”? Is there another test that should be devised when it is a child who told the story of abuse?
Along the way, the Justices explored whether the Constitution’s due process protection might work better than the Confrontation Clause when a child is the absent witness, and wondered whether the question of using the child’s out-of-court statements would be better analyzed under traditional limits on the use of hearsay as evidence.
The constitutional understanding that the Court has been developing for the past eleven years, Justice Elena Kagan commented at one point, “doesn’t fit very well” when a three-year-old boy is the one whose evidence prosecutors want to lay before a jury.
But the hearing ended without any clarity on what an alternative analysis might be.
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