Ohio Supreme Court Limits Use Of Child Abuse Reports to Teachers

The Ohio Supreme Court has held that when questioning a child about suspected abuse a teacher acts in a dual capacity as both an instructor and as an agent of the state for law-enforcement purposes.  This means that statements elicited from a child by a teacher in the absence of an ongoing emergency and for the primary purpose of gathering information of past criminal conduct and identifying the alleged perpetrator of suspected child abuse are subject to the Confrontation Clause of the Constitution.

The case is State v. Clark,  Slip Opinion No. 2013-Ohio-4731.

The case involved the use at trial of hearsay statements that a three-and-a-half-year-old made to his preschool teacher in response to questions asked about injuries to his eye and marks on his face observed upon his arrival at a preschool day care.

The legal background turns on the Supreme Court’s interpretation of the Confrontation Clause.  The Court has held that statements made to law enforcement when the primary purposes of the questioning is to establish or prove past events potentially relevant to later criminal prosecution are “testimonial” and, therefore, may not be used in a trial unless the person who made the statements is available for testimony and cross-examination.

This case started when the defendant’s girlfriend’s son was dropped off at a Head Start Center in Cleveland. One of the preschool teachers observed that the child’s left eye appeared bloodshot and bloodstained. She asked him, “What happened?” The child at first said nothing but then replied, “I fell.”   Later, the child made statements that appeared to implicate the defendant.

Later, the teachers observed more injuries and reported the matter to a supervisor and then the Department of Child and Family Services.

The trial judge declared that the child was not competent to testify at a trial, but allowed the jury to hear the statements made to the instructors.  The court explained that these statements were “testimonial” because they were not designed to deal with an emergency, but were aimed at gathering information about what had occurred.

Here, the circumstances objectively indicate that the primary purpose of the questions asked of [the child] was not to deal with an existing emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution. His teachers reacted to manifest signs of child abuse and complied with their statutory and professional duties to report it to child-protection authorities. They did not seem to believe his story that he had fallen and instead focused on who caused the injuries. . . . .

Here, the information also led to criminal prosecution, and therefore the use of the child’s statements implicates the defendant’s constitutional rights. When teachers suspect and investigate child abuse with a primary purpose of identifying the perpetrator, any statements obtained are testimonial for purposes of the Confrontation Clause.

For this reason, the admission of the child’s statements to the teacher violated the defendant’s right to confrontation.

The Chief Justice vigorously dissented:

The majority decision creates confusion in our case law, . . . and threatens the safety of our children.”  The dissent said:

The majority reaches an illogical result, the straightforward application of which dictates that when a teacher notices that a child is hungry and asks whether the child had breakfast, the teacher is a police interrogator because the child might disclose reportable neglect. When a licensed psychologist questions a child about insomnia, the majority would conclude, the psychologist is a police interrogator because the child might disclose reportable abuse. When a dentist observes an injury in a child’s mouth and asks the child “what happened,” under the majority holding, the dentist is an agent of law enforcement for Confrontation Clause purposes. Common sense dictates that those conclusions are incorrect

. . . More troubling, the majority creates a beneficial catch-22 for pedophiles and other abusers of children. The very people who have the expertise and opportunity to recognize child abuse are now prohibited in Ohio from testifying about any out-of-court statements that a child makes about abuse or neglect when the child, for whatever reason, is unable to testify.  Child abusers often evade prosecution because the victims are unable to disclose the abuse, let alone testify.

The majority of the court referred to the dissent as a “passionate rant” and defends its decision as supporting “a basic constitutional right to all accused of crime by the Sixth Amendment of the United States Constitution.  “In this case, a three-year-old allegedly uttered a statement identifying [the defendant] but never testified in court because the judge determined him to be incompetent to testify at trial six months after he had uttered the identification.”


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