Clark lived with his girlfriend and her young children, including three-year-old L.P. When Clark dropped L.P. off at preschool, teachers noticed L.P.'s bloodshot eye and marks on his face, asked what happened and who did it, and L.P. responded in a way identifying "Dee." The teachers suspected abuse, reported it through the child-abuse hotline, and later gave formal statements to police. L.P. was declared incompetent to testify at trial, but the trial court admitted testimony about his out-of-court statements to the teachers.
Issue
Whether admitting L.P.'s out-of-court statements to his preschool teachers violated Clark's Sixth Amendment right to confront witnesses against him. More specifically, the question was whether statements elicited by teachers who are questioning a child about suspected abuse under their statutory reporting duty are testimonial.
Rule
At a minimum, when questioning a child about suspected abuse in furtherance of a duty pursuant to R.C. 2151.421, a teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes. Statements elicited from a child by a teacher are testimonial when, viewed objectively, there is no ongoing emergency and the primary purpose of the questioning is to establish or prove past events potentially relevant to later criminal prosecution, including identifying the perpetrator.
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At a preschool in Toledo, teacher Nina Flores noticed dark bruises on four-year-old Evan’s upper arm when he took off his coat. Evan was calm, breathing normally, and did not ask for help. Because school staff are required to report suspected abuse, Nina took him to an empty reading corner and asked, “Who did that to you?” and “When did it happen?” Evan answered, “Mason hit me at home.” Evan was later found incompetent to testify at trial.
If the prosecution offers Nina’s testimony about Evan’s statements at Mason’s assault trial, are the statements most likely testimonial under the governing rule?
Explanation. Under the majority rule, at a minimum a teacher acts in a dual capacity, including as an agent of the state for law-enforcement purposes, when questioning a child about suspected abuse in furtherance of the reporting duty. The statements are testimonial when, viewed objectively, there is no ongoing emergency and the primary purpose is to gather information about past criminal conduct and identify the alleged perpetrator. Evan was calm, not in medical distress, and the questions focused on who caused prior injuries and when. The child’s later incompetency does not cure the Confrontation Clause problem.