In March 2010, preschool teachers in Cleveland, Ohio, noticed injuries on the face of a 3-year-old student. After first claiming that he fell, the boy eventually indicated that his mother's boyfriend was responsible. In accordance with Ohio law (which requires all school employees to report suspected child abuse), the teachers forwarded their concerns to state agents. Ultimately, the boyfriend, Darius Clark, was charged with child abuse.
At Clark's trial, the court determined that the boy was too young to testify, but it allowed seven witnesses to state that the boy identified Clark as the abuser. Clark was convicted and sentenced to 28 years in prison. On appeal, Clark argued that the trial court violated his Sixth Amendment right to confront the witnesses against him by allowing the boy's accusations to be relayed to the jury through the testimony of others.
The Sixth Amendment's Confrontation Clause ensures that evidence against a criminal defendant can be subjected to rigorous cross-examination before the trier of fact (Maryland v. Craig, 1990). If a witness is unavailable to testify at trial, "testimonial" statements from that witness cannot be considered unless the accused had a prior opportunity to cross-examine the witness (Crawford v. Washington, 2004). Although the term "testimonial" has not yet been defined comprehensively, the Supreme Court has explained that certain statements made during police interrogations are testimonial. Specifically, if the interrogation is being conducted to establish events relevant to a criminal prosecution, the witness's statements are testimonial (Michigan v. Bryant, 2011). Conversely, if the primary purpose of an interrogation is to allow the police to address an ongoing emergency, the witness's statements are not testimonial.
The Supreme Court of Ohio accepted Clark's argument that the boy's statements were testimonial and therefore barred by the Sixth Amendment. In so doing, the court found that the primary purpose of the teachers' questions was not to remove the child from an emergency situation or obtain urgently needed medical attention for him, but rather to seek information that could be used later in a criminal prosecution. The case is now on appeal before the U.S. Supreme Court.
Clark's case raises significant issues for psychologists. First, the confrontation issue stems from courts' general reluctance to allow young children to serve as witnesses in criminal cases. Is the child mature enough to give honest answers? Can the child withstand the pressures of the trial, including the stress of confronting the perpetrator (who may be a family member)? Are the safeguards that have been attempted by courts — such as allowing children to testify remotely, or from behind a screen, or with assistance from a comforting relative or object — adequate to protect the child without affecting the accuracy of the testimony or violating the defendant's confrontation rights? As the courts adapt and experiment, psychologists can provide insights about the legitimacy of the courts' concerns and the effectiveness of their adaptations.
Second, the Supreme Court will soon determine whether a teacher's obligation to report suspected child abuse makes that teacher an agent of law enforcement for the purposes of the Confrontation Clause. This decision could have broad implications for a wide variety of people who have legal obligations to report child abuse. All 50 states have some type of mandatory reporting law, and in many states these laws cover psychologists who work in school settings or in general clinical practice. What will a clinician's obligations be if an adult client admits during therapy that he or she has neglected or abused a child? In the eyes of the law, does the "primary purpose" of the session shift from treatment to law enforcement? Will counselors need training about law enforcement roles, evidence preservation and Miranda warnings? These and many other questions will require thoughtful consideration if the Ohio decision is affirmed. A decision is expected by summer.
"Judicial Notebook" is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
