Ohio v. Clark: The Supreme Court’s Latest Pronouncement on the Confrontation Clause

By guaranteeing criminal defendants the right to confront their accusers, the Sixth Amendment limits the ability of the government to use hearsay evidence against defendants at trial.  Importantly, though, the Confrontation Clause only limits the use of statements that are “testimonial” in nature.  A pair of Supreme Court cases from 2006 clarified what makes a statement testimonial, but left an important question unanswered.  Last week, the Court finally provided an answer (sort of) in Ohio v. Clark.

Clark featured an unusually unsympathetic defendant who was convicted of physically abusing his girlfriend’s two very young children.  


The older child, three-year-old L.P., attended a preschool, where his teachers noticed his injuries and asked him who did it. He replied, “Dee,” which was the nickname of the defendant Darius Clark. The teachers alerted the authorities, which eventually led to charges against Clark.

At trial, L.P. could not be called to testify against Clark because of his age, but state law permitted his out-of-court statement to the teachers to be introduced into evidence through an exception to the hearsay rule. Clark invoked the Confrontation Clause, but without success in the trial court. However, the state appellate courts overturned his convictions, holding that L.P.’s statement should have been excluded. The U.S. Supreme Court then took the case and reversed, ruling against Clark and reinstating the convictions.

Clark required the Supreme Court to address a question that had been left unanswered by the two 2006 cases, Davis v. Washington and Hammon v. Indiana.  Both involved statements made by victims of domestic abuse to law enforcement officers. In order to decide whether these statements were testimonial, the Court developed the primary purpose test.  This test asks whether the primary purpose of the statement at issue was to enable a response to an ongoing emergency, or establish past events that may be relevant to a future criminal prosecution. Using this test, the Court held in Davis that a victim’s statements during a 911 call during a violent attack were not “testimonial” and could be used against the attacker. On the other hand, the Court held in Hammon that a victim’s statements made to police after she had been isolated from the attacker were testimonial and subject to exclusion under the Confrontation Clause.

Clark squarely presented a question that was reserved in Davis, Hammon, and other earlier cases: whether the Confrontation Clause analysis applies to statements made to people who are not law enforcement officers. Recall that the statement at issue in Clark was made to teachers.

The Court answered this question with a “yes, but . . .”

Here’s what Court said:

Because at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, we decline to adopt a categorical rule excluding them from the Sixth Amendment’s reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers.

That question resolved, the Court considered whether L.P.’s statements were testimonial under the primary purpose test. In concluding not, the Court emphasized these considerations:

  1. There was an ongoing emergency involving suspected child abuse, and an immediate need to determine whether it was safe to send L.P. home at the end of the school day; the Court thus analogized L.P.’s statement to the 911 call in Davis.
  2. There was no indication by anyone that the statement would be used in connection with a criminal prosecution. Neither the teachers nor L.P. himself ever said anything about a potential arrest or charges.
  3. The conversation between the teachers and L.P. was spontaneous and informal; this was specifically distinguished from the police interrogation in Hammon.
  4. L.P. was only three. The Court said, “Statements by very young children will rarely, if ever, implicate the Confrontation Clause. . . . [I]t is extremely unlikely that a 3-year-old child in L.P.’s position would intend his statements to be a substitute for trial testimony.”
  5. Statements like L.P.’s would probably have been admissible at common law.
  6. Teachers, not police, elicited the statement. The Court said, “Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.”

What we see here then, is a totality of the circumstances sort of analysis that highlights several different considerations. Much of the language seems quite discouraging of the possibility that the Confrontation Clause might keep out statements made to people who are not law enforcement officers, but, at the same time, the Court’s highlighting of various considerations creates many possibilities for defense counsel to try to distinguish Clark in future cases.