Release Date:  February 28, 2015
Contact:  Michael Rushford
(916) 446-0345

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Oral Argument in Ohio v. Clark scheduled for Monday, March 2

The U. S. Supreme Court will hear oral argument Monday to review a divided Ohio Supreme Court ruling which overturned a child abuser's conviction because the trial judge allowed testimony of a teacher who reported the victim's injuries.

At issue in the case of Ohio v. Clark is whether the testimony of the teacher about what the victim told her should be allowed, if the victim, a three-year-old child, was considered incompetent to testify. The Ohio Supreme Court held that allowing the teachers to give that testimony violates the Constitution's Confrontation Clause.

The California-based Criminal Justice Legal Foundation has joined this case to argue that when someone other than a police officer believes a crime has occurred and asks the victim "what happened," the statements made by the victim should be considered "non-testimonial," i.e., not made for the purpose of being used as evidence at a trial. In this case, the teachers wanted to know if someone was abusing the child in order to protect him from further injury. Such testimony does not violate the confrontation clause because the teacher is a legitimate witness who can be confronted by the defense.

The case involves the 2010 conviction of Darius Clark of multiple counts of felony assault, child endangerment and domestic violence stemming from the physical abuse of his girlfriend's 3-year-old son and 2-year-old daughter. Facts introduced at trial indicate that on March 16, 2010, the children's mother, who was a prostitute, took a bus to Washington to meet with clients, leaving her two children with Clark, who was also her pimp. She testified later that when she left, her children were unharmed.

The next day, Clark dropped off the son at his pre-school. One of the child's teachers, Ramona Whitley, noticed that one of his eyes was bloodshot and that there were red marks and welts on his face. After Whitley pointed this out to the lead teacher Debra Jones, Jones asked the child "who did this," to which he answered "Dee Dee." Dee was the child's nickname for Darius Clark. To determine weather Dee Dee was an adult or another child, Jones asked "is he big or little," to which the child answered, "Dee is big."

Jones took the child to her supervisor's office, where they removed his shirt and found more injuries. The injuries were reported to the county child services agency which conducted an investigation. The next day both children were taken from the home of Clark's sister to a hospital where serious injuries were found on the 2-year-old child including two black eyes and a burn on her cheek.

Following his conviction, Clark won an appellate court ruling which found the statements the child made to the teachers were "testimonial," the requirement established by the Supreme Court for the constitutional right of confrontation to apply. Based upon this holding, the Court concluded that the teachers' testimony was unconstitutional, because the defense was unable to cross-examine the child. The Ohio Supreme Court later upheld that ruling, finding that when the teachers questioned the child about possible abuse, they were acting as an agent of state law enforcement because of the state's mandatory abuse reporting law.

When the U. S. Supreme Court agreed to consider the state's appeal, the Foundation joined the case to encourage a decision reinstating Clark's conviction. In a scholarly amicus curiae (friend of the court) brief, the Foundation argues that the answers the child gave to the teachers were not testimonial because the teachers sought to determine if that child or other children were in danger, not to gather evidence for the prosecution of a, yet unknown, defendant for a, yet unknown, crime. The teachers and not the child should be considered the witnesses in this case for the purpose of the constitutional right of confrontation. As such, the Constitution is satisfied by the defendant's ability to confront the teachers at trial. The CJLF argument noted that Supreme Court precedent in this area is confused and more clarity is need. A statement made to a first responder, whether a policeman or someone else, is not the same as a statement taken by an investigator building a case against a known suspect. The statement to the investigator is "testimonial" as that term is used by the Supreme Court, and the statement to the first responder is not.

For statements that are not "testimonial," the question of whether they are admissible is one to be decided by state courts and legislatures under the state's hearsay evidence rules. It is not a question for the federal courts.

A decision favoring the Foundation's position would prevent the suppression of important evidence that a jury should be allowed to consider.

"It is critical to the fact-finding process for juries to hear the best available evidence," said Foundation Legal Director Kent Scheidegger. "In cases such as this, the statements of abused children are valid evidence, and excluding them would let abusers go free," he added.

CJLF Legal Director Kent Scheidegger is available for comment at (916) 446-0345.
The Foundation brief in this case is available at: