Reference no: EM133300214

Case: The Crawford Court left practitioners with a new approach which turns upon whether out-of-court hearsay statements are "testimonial" in nature. If the statements are testimonial, they are inad- missible absent the ability to cross-examine the declarant at trial. In Ohio v. Clark, 576 U.S. (2015), the Supreme Court addressed the use of out-of-court statements made by a three-year-old child to his preschool teacher regarding the identity of his abuser. The Ohio Supreme Court, overruling the trial court and reversing the conviction of Clark, deemed the statements testimonial and held that the statements (as testified to by the child's teacher) should have been excluded at trial because they violated the Sixth Amendment confrontation clause. The Ohio Supreme Court concluded that the preschool teachers were functioning, not in response to an existing emergency, but rather to gather evidence potentially relevant for future criminal prosecution. Following review, the United States Supreme Court focused on the intent of the declarant (child), as opposed to the witness (teacher) when assessing whether the statements were tes- timonial. Clark had argued that the mandatory reporting law which applies in suspected child abuse cases transformed the role of the teacher into an investigatory one with a purpose of assisting in future prosecution thus making elicited statements "testimonial" in nature. However, the United States Supreme Court did not accept this argument and held that the child, when responding to inquiry by his concerned preschool teacher, made non-testimonial statements designed only to be responsive to the concerns of those charged with his care. The Court con- cluded that the primary purpose of the questions by the child's teachers was not to gather evi- dence, but rather to address an ongoing emergency and make a determination whether it was safe to allow a child to return to his caretaker. Given the age of the child, it is not likely that the intent of the child was to make statements in preparation for future legal proceedings.

concerning Ohio v. Clark. (This is one of many cases arising after the landmark case of Crawford v. Washington). Remember that this is usually only an issue if the "declarant" (victim in this case) is not testifying at trial. The statement in question will then be used (in part) to convict the defendant. This hinges in large part on whether the statement is "testimonial." If it is, it is probably inadmissible absent the ability to cross-examine the witness. Determining if a statement is testimonial depends in part on the "primary purpose" of the interrogation. Were the statements made or elicited with the primary purpose of creating or gathering evidence for prosecuting the defendant? The intent of the declarant is also important in these cases, as pointed out by the Court.

Question 1: Now change the facts from Ohio v Clark. A) What about an emergency call into a dispatcher? B) What about responses to a police officer questioning witnesses at a crime scene? Are these testimonial statements? Why or why not? (Consider each in turn but don't worry about getting the "right" answer. Just consider the readings and support your answers).

Question 2:  In your opinion, does it still make sense to adhere to the hearsay rule, or can/should modern juries figure this out on their own, sifting out potentially unreliable statements on a case-by-case basis? Why or why not?