Constitution Allows Children’s Out-of-Court Statements, Supreme Court Decides

Ohio v. Clark (2015)

by David S. Marshall

The U.S. Supreme Court has decided that the constitution permits children’s out-of-court statements to be admitted in criminal trials. It so decided June 18th inOhio v. Clark, 2015 WL 2473372.

In the case, preschool teachers asked a small boy about injuries they saw on him. He told them his mother’s boyfriend, Clark, had caused the injuries. The teachers repeated what the boy said at Clark’s trial for assault and child abuse, and he was convicted.

On appeal, Clark argued that letting the teachers do that violated his right to confront witnesses against him, guaranteed by the Confrontation Clause of the constitution.

Not so, the Supreme Court decided.

The Confrontation Clause generally prohibits the use by the prosecution of “testimonial” statements made outside the courtroom. The Supreme Court reinterpreted the Clause that way in the 2003 case of Crawford v. Washington. Just what makes a statement “testimonial” is something the courts have been deciding on a case-by-case basis in the dozen years since the Crawford decision. (I’ve written many times about the Crawford case and cases elaborating on its interpretation of the Confrontation Clause. See, for example, Crawford Decision Means Children Must Testify, Most Child Statements to Police Now “Testimonial”).

In Ohio v. Clark, the nine justices didn’t seem to agree on how to determine whether an out-of-court statement is “testimonial,” but they agreed that statements by small children would virtually never be. Small children’s understanding of the criminal justice system—in particular, of how their statements could be used in a criminal trial—is too weak for their statements to be deemed “testimonial.”

But this does not mean that small children’s out-of-court statements are always admissible at trial. Most out-of-court statements are hearsay. They may be admitted only if they fit one of the exceptions to the rule against hearsay.

Many states have a hearsay exception for children’s statements reporting child abuse. Washington State’s exception, for example, is found in Revised Code of Washington 9A.44.120. It permits admission of children’s hearsay only when it meets certain standards of reliability.