The U.S. Supreme Court Revisits Hearsay and the Sixth Amendment

Earlier this month, the U.S. Supreme Court granted review in a case about the meaning of the Sixth Amendment Confrontation Clause. The case, Ohio v. Clark, involved a criminal defendant who was convicted of physically abusing two children, ages (approximately) three and two. Though the trial court deemed the older child incompetent to testify, it admitted the testimony of various (competent) witnesses who repeated the child’s out-of-court statements identifying the defendant as the cause of the child’s injuries. The testimony challenged in this appeal came from a school teacher who, along with another teacher, had questioned their student to find out what had happened to his eyes and face. The teacher testified that the boy responded “Dee Dee,” a nickname for the defendant, who was the boyfriend of the child’s mother.

On appeal, the Supreme Court of Ohio affirmed the appellate court’s reversal of Clark’s conviction, holding that the introduction of the teacher’s testimony impermissibly infringed upon the defendant’s Sixth Amendment right to be confronted with the witnesses against him. The evidence violated the Sixth Amendment because it offered the jury “testimonial” statements without giving the defendant any opportunity to cross-examine the three-year-old child who had made the statements.

The Supreme Court granted review on two questions about the child’s out-of-court statements: (1) As mandatory reporters of child abuse, were the teachers who questioned the child effectively law enforcement officers conducting an interrogation?, and (2) Did the child’s statements to his teachers qualify as “testimonial” for purposes of the Sixth Amendment Confrontation Clause? This column will suggest that in considering how to answer these two questions, the Court may properly see fit to revisit its approach to hearsay and the Sixth Amendment right of confrontation.

Hearsay and the Confrontation Clause

To understand this case, it is useful to review the connection between hearsay and the Sixth Amendment, a connection that has changed over time. The Sixth Amendment text provides a right on the part of a criminal defendant to “to be confronted with the witnesses against him.” This has long been understood to mean, at the very least, that when the prosecution offers testimony by a witness in court, the defense has the right to cross-examine that witness. If, for some reason, the defense cannot conduct cross-examination (e.g., if the witness dies immediately after direct examination), then the jury must be told to disregard the witness’s testimony, and the judge may need to declare a mistrial.

Hearsay presents a special challenge to the confrontation principle. Hearsay is an out-of-court statement (that is, a statement made outside of the proceeding at which it is offered in evidence) that is introduced as proof of what the declarant (the person who made the out-of-court statement) intentionally asserted in the statement. For instance, Penelope Plaintiff calls Wally Witness, who testifies “My friend Darlene Declarant told me that the light was red when David Defendant entered the intersection.” In this scenario, if Penelope Plaintiff is introducing Wally Witness’s testimony to prove that the light really was red when David Defendant entered the intersection, just as Darlene Declarant claimed in her out-of-court statement, then the testimony is hearsay.

Hearsay potentially implicates the Confrontation Clause of the Sixth Amendment because the person who makes the out-of-court statement is very much like a witness. In our scenario above, Darlene Declarant may not be in the courtroom, but her statement about the car accident is offered to the jury as an accurate and truthful account of what occurred, much like an in-court witness’s testimony would be. If Darlene were in court, she would be sworn to tell the truth, visible to the jurors while she made her statements, and—most importantly, for our purposes—subject to cross-examination by the defendant.

When Darlene Declarant’s statements are offered through Wally Witness’s testimony, however, there is no opportunity for David Defendant to cross-examine her and thereby to expose any weaknesses in her statement. Because of this missing opportunity, the law of evidence has long regarded hearsay with suspicion and has excluded it unless it fit within one of a long list of hearsay exceptions. But when offered in a criminal case against a defendant, such hearsay does not just run into an evidentiary rule; it may also implicate the criminal defendant’s constitutional right of confrontation.

Under another Ohio case that the U.S. Supreme Court decided in 1980, Ohio v. Roberts, the Court dealt with hearsay under the Confrontation Clause by holding that so long as it is very reliable (and the declarant is unavailable to testify), hearsay may come into evidence against the criminal defendant without the need for cross-examination. If hearsay fell within a “firmly rooted” exception to the hearsay rule, it would be presumed sufficiently reliable to qualify for this treatment. If, on the other hand, a particular item of hearsay fell outside the scope of the firmly exceptions to the rule, then it could come into evidence without the opportunity for cross-examination of the declarant only if the hearsay showed “particularized guarantees of trustworthiness.”

This system was simple to apply when hearsay fit within a firmly rooted exception. A court could just name the traditional exception and then admit the evidence without further Sixth Amendment analysis. But complications arose in the cases in which the applicable law of evidence permitted admission of hearsay against the defendant under either a generic “catchall” exception to the hearsay rule or under a relatively new exception that fell outside the “firmly rooted” category. In such situations, the Supreme Court called for an assessment of whether the hearsay was sufficiently reliable to come in without cross-examination. The Court had a difficult time developing a consistent and sensible approach to judging reliability in this class of cases and eventually, the Court scrapped the reliability test altogether.

Crawford and Testimonial Statements

In an opinion by Justice Scalia in Crawford v. Washington in 2004, and a series of cases that followed, the Supreme Court held that some hearsay offered against a criminal defendant is “testimonial” in nature and thus requires an opportunity for cross-examination by the defendant, even if the hearsay is very reliable and falls within some firmly rooted hearsay exception. To paraphrase Justice Scalia, the Sixth Amendment may be aimed at reliability, but it does not require reliability; what it requires is confrontation—cross-examination—as a method of ensuring reliability. Therefore, even if testimony is extremely reliable, it cannot come in absent cross-examination. Similarly, Justice Scalia pointed out, even though criminal trials are meant to ensure that a defendant is really guilty, we cannot dispense with a criminal trial just because it is obvious in a particular case that the defendant is guilty; that is because the Constitution guarantees the right to a trial. The Constitution thus mandates the procedures provided in its text, even when we might have an alternative method of assuring a desirable outcome.

The new Confrontation Clause approach to hearsay meant that the existence of a firmly rooted hearsay exception would no longer (except in a few limited circumstances) exempt an out-of-court statement from Confrontation Clause scrutiny. Much more hearsay would therefore be potentially excludable under the Sixth Amendment, regardless of what the law of evidence might have to say about it. But at the same time, not all hearsay would qualify as “testimonial” and accordingly subject to the Confrontation Clause. Thus the determination of what is and what is not “testimonial” became the complicated inquiry under Crawford that the determination of “reliability” for nontraditional hearsay exceptions had previously been under Roberts.

From the progeny of Crawford, we know that if people are just talking casually and one says something to another, introduction of this out-of-court statement at a criminal trial will not trigger application of the Confrontation Clause. To be testimonial, there has to be some thought to preserving what is being said for introduction at a future trial as evidence. At first, the Supreme Court said (in Crawford itself) that statements made to a police officer during an interrogation would qualify as testimonial. But in later cases, it became clear that if the primary purpose of the conversation is something other than evidence gathering, such as addressing an ongoing emergency situation in the course of a 9-1-1 call, then the resulting hearsay will not trigger application of the Sixth Amendment and will be admissible (assuming no sub-constitutional evidentiary objections).

What remained to be seen was when statements to non-police might qualify as “testimonial” and how broadly the Court would draw the category of statements to police that do not qualify as “testimonial.” Though the Court used the phrase “primary purpose,” moreover, it failed to make clear whether the important inquiry was the police officer’s (or other questioner’s) primary purpose, the speaker’s primary purpose, or some combination of the two. In the meantime, various Justices who had originally joined Crawford began to express doubts about its workability.

Enter Clark

In Clark, the case before the Supreme Court with which I began this column, questioning by the out-of-court declarant’s teachers led up to his statement implicating the defendant as a child abuser. Under the Crawford line of cases, the question, then, is whether the child’s statements in response to his teachers’ inquiries were testimonial—whether they were the equivalent of testimony such that they should have been excluded from the defendant’s trial given the lack of any opportunity for cross-examination.

Were it not for the mandatory reporting law, it would seem that the primary purpose of a conversation between teachers and an injured child at school about how the child came to be injured would not be to gather evidence in anticipation of a criminal prosecution. The primary purpose would instead be to help determine what happened to the child in the teachers’ care so that the teachers could help him return to classroom activities in safety and in good condition.

In this case, however, the teachers were obligated under the law to report any suspected child abuse to the authorities. According to the Ohio Supreme Court majority, this obligation transformed the student/teacher exchange into a law enforcement interrogation aimed primarily at gathering evidence against the perpetrator of child abuse. The reason for this transformation, according to the Ohio court, is that a private person who is required to gather information for law enforcement becomes an agent of law enforcement when carrying out that requirement. And when there is no pressing emergency, as there was not in this case, the purpose of the mandatory reporting obligation is plainly to help law enforcement gather evidence of child abuse.

One could argue, as the dissent in Clark argued ably, that just because a school teacher has a mandatory reporting duty does not necessarily change her primary purpose in asking a child in her care what caused his injuries. Part of the job of being a teacher is ensuring the comfort and safety of one’s charges, regardless of what reporting duties one might have, and helping injured children is integral to that aspect of the job. Where reporting duties run counter to one’s ordinary objectives—such as where a therapist who is ordinarily dedicated to keeping all disclosures confidential must report threatening statements by a patient—it might be more plausible to claim that a reporting requirement best explains an interrogation. But where reporting requirements simply affirm what one’s own professional obligations would demand anyway—in the case of a teacher, to care for children—then it is more of a leap to presume that law enforcement motivations lie behind a conversation between a teacher and a student about the student’s injuries.

If the Supreme Court nonetheless finds the Ohio court’s reasoning convincing, then it would seem to follow doctrinally that the primary purpose of the interrogators is what matters in Confrontation Clause analysis. That is because a three-year-old child is presumably not “primarily” trying to build an evidentiary case for trial against his mother’s boyfriend when he responds to his teachers’ inquiries about his injuries, no matter what the mandatory reporting requirements might be. The child’s goal is almost certainly to please his teachers by answering their questions correctly or perhaps to tell trustworthy grownups about something scary and painful that happened to him.

If the Supreme Court affirms the holding and reasoning of the Ohio high court, it would accordingly appear that the U.S. Supreme Court shares the view that the relevant intention when applying the Sixth Amendment to hearsay is the intention of the person asking rather than the person answering the questions. In an earlier case, Michigan v. Bryant, Justices Scalia and Ginsburg indicated (in their dissents) their view that the opposite is true, that the speaker’s intent is what ought to matter.

Purpose Inquiry Exposes Oddity of Determining When a Statement Is “Testimonial”

The reason to ask whether a statement is “testimonial” or not, in determining whether the Sixth Amendment applies, is that the Sixth Amendment literally provides that a defendant must be confronted with the “witnesses” against him. If an out-of-court statement is not “testimonial”—the argument would go—then the individual who made the statement does not become a “witness” that must be subject to cross-examination. For formal statements made under oath or in response to a formal interrogation, it seems sensible to treat them as tantamount to having a witness testify in court.

Once we get beyond the very formal statements of the sort that Justice Thomas has said, in a concurrence in Illinois v. Williams, constitute the entire category of testimonial hearsay subject to the Sixth Amendment, it is difficult to explain why the interrogator’s purpose should matter at all. If the worry is reliability, then it would appear that casual comments made to a friend would be far less reliable—and therefore in greater need of cross-examination—than statements made with the express purpose of preserving information for later use. And if the worry is testimony-like statements, regardless of their reliability, then why would the apparent intentions of the parties (rather than, say, the formality of the setting) be determinative?

Furthermore, even if we think that testimonial intent matters, isn’t it the speaker’s intent that determines the “testimony-like” quality of her responses to questions, rather than the interrogator’s intent? If the speaker, for example, has no idea that she is talking to a police officer, because the officer is working undercover, then the U.S. Supreme Court has said, in Illinois v. Perkins, in the Fifth Amendment Miranda context, that there is no interrogation. Wouldn’t it therefore seem similarly sensible in the Sixth Amendment context to focus on what is happening for the would-be witness rather than focusing on the objectives of the questioner, who may, indeed, have a whole array of different purposes and whose purposes may be completely opaque to the subject of interrogation?

Several Justices have already expressed misgivings about the Crawford framework, given the potential arbitrariness and indeterminacy of any test for what does or does not count as “testimonial.” Though the Roberts reliability test was imperfect, the Court might choose either to return to it or to figure out some alternative means of resolving Confrontation Clause issues around hearsay in a categorical rather than (its current) piecemeal fashion. My prediction and hope, at this point, is a move back to the more predictable and workable Roberts approach.