Ohio v. Clark , 135 S. Ct. 2173 ( 2015 )


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  • (Slip Opinion)              OCTOBER TERM, 2014                                       1
    Syllabus
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
    being done in connection with this case, at the time the opinion is issued.
    The syllabus constitutes no part of the opinion of the Court but has been
    prepared by the Reporter of Decisions for the convenience of the reader.
    See United States v. Detroit Timber & Lumber Co., 
    200 U.S. 321
    , 337.
    SUPREME COURT OF THE UNITED STATES
    Syllabus
    OHIO v. CLARK
    CERTIORARI TO THE SUPREME COURT OF OHIO
    No. 13–1352. Argued March 2, 2015—Decided June 18, 2015
    Respondent Darius Clark sent his girlfriend away to engage in prosti-
    tution while he cared for her 3-year-old son L. P. and 18-month-old
    daughter A. T. When L. P.’s preschool teachers noticed marks on his
    body, he identified Clark as his abuser. Clark was subsequently tried
    on multiple counts related to the abuse of both children. At trial, the
    State introduced L. P.’s statements to his teachers as evidence of
    Clark’s guilt, but L. P. did not testify. The trial court denied Clark’s
    motion to exclude the statements under the Sixth Amendment’s Con-
    frontation Clause. A jury convicted Clark on all but one count. The
    state appellate court reversed the conviction on Confrontation Clause
    grounds, and the Supreme Court of Ohio affirmed.
    Held: The introduction of L. P.’s statements at trial did not violate the
    Confrontation Clause. Pp. 4–12.
    (a) This Court’s decision in Crawford v. Washington, 
    541 U.S. 36
    ,
    54, held that the Confrontation Clause generally prohibits the intro-
    duction of “testimonial” statements by a nontestifying witness, unless
    the witness is “unavailable to testify, and the defendant had had a
    prior opportunity for cross-examination.” A statement qualifies as
    testimonial if the “primary purpose” of the conversation was to
    “creat[e] an out-of-court substitute for trial testimony.” Michigan v.
    Bryant, 
    562 U.S. 344
    , 369. In making that “primary purpose” de-
    termination, courts must consider “all of the relevant circumstances.”
    
    Ibid. “Where no such
    primary purpose exists, the admissibility of a
    statement is the concern of state and federal rules of evidence, not
    the Confrontation Clause.” 
    Id., at 359.
    But that does not mean that
    the Confrontation Clause bars every statement that satisfies the
    “primary purpose” test. The Court has recognized that the Confron-
    tation Clause does not prohibit the introduction of out-of-court
    statements that would have been admissible in a criminal case at the
    2                             OHIO v. CLARK
    Syllabus
    time of the founding. See Giles v. California, 
    554 U.S. 353
    , 358–359;
    
    Crawford, 541 U.S., at 56
    , n. 6, 62. Thus, the primary purpose test
    is a necessary, but not always sufficient, condition for the exclusion of
    out-of-court statements under the Confrontation Clause. Pp. 4–7.
    (b) Considering all the relevant circumstances, L. P.’s statements
    were not testimonial. L. P.’s statements were not made with the
    primary purpose of creating evidence for Clark’s prosecution. They
    occurred in the context of an ongoing emergency involving suspected
    child abuse. L. P.’s teachers asked questions aimed at identifying
    and ending a threat. They did not inform the child that his answers
    would be used to arrest or punish his abuser. L. P. never hinted that
    he intended his statements to be used by the police or prosecutors.
    And the conversation was informal and spontaneous. L. P.’s age fur-
    ther confirms that the statements in question were not testimonial
    because statements by very young children will rarely, if ever, impli-
    cate the Confrontation Clause. As a historical matter, moreover,
    there is strong evidence that statements made in circumstances like
    these were regularly admitted at common law. Finally, although
    statements to individuals other than law enforcement officers are not
    categorically outside the Sixth Amendment’s reach, the fact that L. P.
    was speaking to his teachers is highly relevant. Statements to indi-
    viduals who are not principally charged with uncovering and prose-
    cuting criminal behavior are significantly less likely to be testimonial
    than those given to law enforcement officers. Pp. 7–10.
    (c) Clark’s arguments to the contrary are unpersuasive. Mandato-
    ry reporting obligations do not convert a conversation between a con-
    cerned teacher and her student into a law enforcement mission aimed
    at gathering evidence for prosecution. It is irrelevant that the teach-
    ers’ questions and their duty to report the matter had the natural
    tendency to result in Clark’s prosecution. And this Court’s Confron-
    tation Clause decisions do not determine whether a statement is tes-
    timonial by examining whether a jury would view the statement as
    the equivalent of in-court testimony. Instead, the test is whether a
    statement was given with the “primary purpose of creating an out-of-
    court substitute for trial testimony.” 
    Bryant, supra, at 358
    . Here,
    the answer is clear: L. P.’s statements to his teachers were not testi-
    monial. Pp. 11–12.
    
    137 Ohio St. 3d 346
    , 2013–Ohio–4731, 
    999 N.E.2d 592
    , reversed and
    remanded.
    ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
    and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J.,
    filed an opinion concurring in the judgment, in which GINSBURG, J.,
    joined. THOMAS, J., filed an opinion concurring in the judgment.
    Cite as: 576 U. S. ____ (2015)                              1
    Opinion of the Court
    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash-
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 13–1352
    _________________
    OHIO, PETITIONER v. DARIUS CLARK
    ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO
    [June 18, 2015]
    JUSTICE ALITO delivered the opinion of the Court.
    Darius Clark sent his girlfriend hundreds of miles away
    to engage in prostitution and agreed to care for her two
    young children while she was out of town. A day later,
    teachers discovered red marks on her 3-year-old son, and
    the boy identified Clark as his abuser. The question in
    this case is whether the Sixth Amendment’s Confrontation
    Clause prohibited prosecutors from introducing those
    statements when the child was not available to be cross-
    examined. Because neither the child nor his teachers had
    the primary purpose of assisting in Clark’s prosecution,
    the child’s statements do not implicate the Confrontation
    Clause and therefore were admissible at trial.
    I
    Darius Clark, who went by the nickname “Dee,” lived in
    Cleveland, Ohio, with his girlfriend, T. T., and her two
    children: L. P., a 3-year-old boy, and A. T., an 18-month-
    old girl.1 Clark was also T. T.’s pimp, and he would regu-
    larly send her on trips to Washington, D. C., to work as a
    prostitute. In March 2010, T. T. went on one such trip,
    ——————
    1 Like the Ohio courts, we identify Clark’s victims and their mother
    by their initials.
    2                      OHIO v. CLARK
    Opinion of the Court
    and she left the children in Clark’s care.
    The next day, Clark took L. P. to preschool. In the
    lunchroom, one of L. P.’s teachers, Ramona Whitley, ob-
    served that L. P.’s left eye appeared bloodshot. She asked
    him “ ‘[w]hat happened,’ ” and he initially said nothing.
    
    137 Ohio St. 3d 346
    , 347, 2013–Ohio–4731, 
    999 N.E.2d 592
    , 594. Eventually, however, he told the teacher that he
    “ ‘fell.’ ” 
    Ibid. When they moved
    into the brighter lights of
    a classroom, Whitley noticed “ ‘[r]ed marks, like whips of
    some sort,’ ” on L. P.’s face. 
    Ibid. She notified the
    lead
    teacher, Debra Jones, who asked L. P., “ ‘Who did this?
    What happened to you?’ ” 
    Id., at 348,
    999 N. E. 2d, at 595.
    According to Jones, L. P. “ ‘seemed kind of bewildered’ ”
    and “ ‘said something like, Dee, Dee.’ ” 
    Ibid. Jones asked L.
    P. whether Dee is “big or little,” to which L. P. responded
    that “Dee is big.” App. 60, 64. Jones then brought L. P.
    to her supervisor, who lifted the boy’s shirt, revealing
    more injuries. Whitley called a child abuse hotline to alert
    authorities about the suspected abuse.
    When Clark later arrived at the school, he denied re-
    sponsibility for the injuries and quickly left with L. P. The
    next day, a social worker found the children at Clark’s
    mother’s house and took them to a hospital, where a phy-
    sician discovered additional injuries suggesting child
    abuse. L. P. had a black eye, belt marks on his back and
    stomach, and bruises all over his body. A. T. had two
    black eyes, a swollen hand, and a large burn on her cheek,
    and two pigtails had been ripped out at the roots of her
    hair.
    A grand jury indicted Clark on five counts of felonious
    assault (four related to A. T. and one related to L. P.), two
    counts of endangering children (one for each child), and
    two counts of domestic violence (one for each child). At
    trial, the State introduced L. P.’s statements to his teach-
    ers as evidence of Clark’s guilt, but L. P. did not testify.
    Under Ohio law, children younger than 10 years old are
    Cite as: 576 U. S. ____ (2015)            3
    Opinion of the Court
    incompetent to testify if they “appear incapable of receiv-
    ing just impressions of the facts and transactions respect-
    ing which they are examined, or of relating them truly.”
    Ohio Rule Evid. 601(A) (Lexis 2010). After conducting a
    hearing, the trial court concluded that L. P. was not com-
    petent to testify. But under Ohio Rule of Evidence 807,
    which allows the admission of reliable hearsay by child
    abuse victims, the court ruled that L. P.’s statements to
    his teachers bore sufficient guarantees of trustworthiness
    to be admitted as evidence.
    Clark moved to exclude testimony about L. P.’s out-of-
    court statements under the Confrontation Clause. The
    trial court denied the motion, ruling that L. P.’s responses
    were not testimonial statements covered by the Sixth
    Amendment. The jury found Clark guilty on all counts
    except for one assault count related to A. T., and it sen-
    tenced him to 28 years’ imprisonment. Clark appealed his
    conviction, and a state appellate court reversed on the
    ground that the introduction of L. P.’s out-of-court state-
    ments violated the Confrontation Clause.
    In a 4-to-3 decision, the Supreme Court of Ohio af-
    firmed. It held that, under this Court’s Confrontation
    Clause decisions, L. P.’s statements qualified as testimo-
    nial because the primary purpose of the teachers’ ques-
    tioning “was not to deal with an existing emergency but
    rather to gather evidence potentially relevant to a subse-
    quent criminal 
    prosecution.” 137 Ohio St. 3d, at 350
    , 999
    N. E. 2d, at 597. The court noted that Ohio has a “manda-
    tory reporting” law that requires certain professionals,
    including preschool teachers, to report suspected child
    abuse to government authorities. See 
    id., at 349–350,
    999
    N. E. 2d, at 596–597. In the court’s view, the teachers
    acted as agents of the State under the mandatory report-
    ing law and “sought facts concerning past criminal activity
    to identify the person responsible, eliciting statements
    that ‘are functionally identical to live, in-court testimony,
    4                      OHIO v. CLARK
    Opinion of the Court
    doing precisely what a witness does on direct examina-
    tion.’ ” 
    Id., at 355,
    999 N. E. 2d, at 600 (quoting Melendez-
    Diaz v. Massachusetts, 
    557 U.S. 305
    , 310–311 (2009);
    some internal quotation marks omitted).
    We granted certiorari, 573 U. S. ___ (2014), and we now
    reverse.
    II
    A
    The Sixth Amendment’s Confrontation Clause, which is
    binding on the States through the Fourteenth Amend-
    ment, provides: “In all criminal prosecutions, the accused
    shall enjoy the right . . . to be confronted with the wit-
    nesses against him.” In Ohio v. Roberts, 
    448 U.S. 56
    , 66
    (1980), we interpreted the Clause to permit the admission
    of out-of-court statements by an unavailable witness, so
    long as the statements bore “adequate ‘indicia of reliabil-
    ity.’ ” Such indicia are present, we held, if “the evidence
    falls within a firmly rooted hearsay exception” or bears
    “particularized guarantees of trustworthiness.” 
    Ibid. In Crawford v.
    Washington, 
    541 U.S. 36
    (2004), we
    adopted a different approach. We explained that “wit-
    nesses,” under the Confrontation Clause, are those “who
    bear testimony,” and we defined “testimony” as “a solemn
    declaration or affirmation made for the purpose of estab-
    lishing or proving some fact.” 
    Id., at 51
    (internal quota-
    tion marks and alteration omitted). The Sixth Amend-
    ment, we concluded, prohibits the introduction of
    testimonial statements by a nontestifying witness, unless
    the witness is “unavailable to testify, and the defendant
    had had a prior opportunity for cross-examination.” 
    Id., at 54.
    Applying that definition to the facts in Crawford, we
    held that statements by a witness during police question-
    ing at the station house were testimonial and thus could
    not be admitted. But our decision in Crawford did not
    offer an exhaustive definition of “testimonial” statements.
    Cite as: 576 U. S. ____ (2015)           5
    Opinion of the Court
    Instead, Crawford stated that the label “applies at a min-
    imum to prior testimony at a preliminary hearing, before a
    grand jury, or at a former trial; and to police interroga-
    tions.” 
    Id., at 68.
       Our more recent cases have labored to flesh out what it
    means for a statement to be “testimonial.” In Davis v.
    Washington and Hammon v. Indiana, 
    547 U.S. 813
    (2006), which we decided together, we dealt with state-
    ments given to law enforcement officers by the victims of
    domestic abuse. The victim in Davis made statements to a
    911 emergency operator during and shortly after her
    boyfriend’s violent attack. In Hammon, the victim, after
    being isolated from her abusive husband, made state-
    ments to police that were memorialized in a “ ‘battery
    affidavit.’ ” 
    Id., at 820.
       We held that the statements in Hammon were testimo-
    nial, while the statements in Davis were not. Announcing
    what has come to be known as the “primary purpose” test,
    we explained: “Statements are nontestimonial when made
    in the course of police interrogation under circumstances
    objectively indicating that the primary purpose of the
    interrogation is to enable police assistance to meet an
    ongoing emergency. They are testimonial when the cir-
    cumstances objectively indicate that there is no such
    ongoing emergency, and that the primary purpose of the
    interrogation is to establish or prove past events poten-
    tially relevant to later criminal prosecution.” 
    Id., at 822.
    Because the cases involved statements to law enforcement
    officers, we reserved the question whether similar state-
    ments to individuals other than law enforcement officers
    would raise similar issues under the Confrontation
    Clause. See 
    id., at 823,
    n. 2.
    In Michigan v. Bryant, 
    562 U.S. 344
    (2011), we further
    expounded on the primary purpose test. The inquiry, we
    emphasized, must consider “all of the relevant circum-
    stances.” 
    Id., at 369.
    And we reiterated our view in Davis
    6                      OHIO v. CLARK
    Opinion of the Court
    that, when “the primary purpose of an interrogation is to
    respond to an ‘ongoing emergency,’ its purpose is not to
    create a record for trial and thus is not within the scope of
    the [Confrontation] 
    Clause.” 562 U.S., at 358
    . At the
    same time, we noted that “there may be other circum-
    stances, aside from ongoing emergencies, when a state-
    ment is not procured with a primary purpose of creating
    an out-of-court substitute for trial testimony.”        
    Ibid. “[T]he existence vel
    non of an ongoing emergency is not
    the touchstone of the testimonial inquiry.” 
    Id., at 374.
    Instead, “whether an ongoing emergency exists is simply
    one factor . . . that informs the ultimate inquiry regarding
    the ‘primary purpose’ of an interrogation.” 
    Id., at 366.
       One additional factor is “the informality of the situation
    and the interrogation.” 
    Id., at 377.
    A “formal station-
    house interrogation,” like the questioning in Crawford, is
    more likely to provoke testimonial statements, while less
    formal questioning is less likely to reflect a primary pur-
    pose aimed at obtaining testimonial evidence against the
    accused. 
    Id., at 366,
    377. And in determining whether a
    statement is testimonial, “standard rules of hearsay,
    designed to identify some statements as reliable, will be
    relevant.” 
    Id., at 358–359.
    In the end, the question is
    whether, in light of all the circumstances, viewed objec-
    tively, the “primary purpose” of the conversation was to
    “creat[e] an out-of-court substitute for trial testimony.”
    
    Id., at 358.
    Applying these principles in Bryant, we held
    that the statements made by a dying victim about his
    assailant were not testimonial because the circumstances
    objectively indicated that the conversation was primarily
    aimed at quelling an ongoing emergency, not establishing
    evidence for the prosecution. Because the relevant state-
    ments were made to law enforcement officers, we again
    declined to decide whether the same analysis applies to
    statements made to individuals other than the police. See
    
    id., at 357,
    n. 3.
    Cite as: 576 U. S. ____ (2015)            7
    Opinion of the Court
    Thus, under our precedents, a statement cannot fall
    within the Confrontation Clause unless its primary pur-
    pose was testimonial. “Where no such primary purpose
    exists, the admissibility of a statement is the concern of
    state and federal rules of evidence, not the Confrontation
    Clause.” 
    Id., at 359.
    But that does not mean that the
    Confrontation Clause bars every statement that satisfies
    the “primary purpose” test. We have recognized that the
    Confrontation Clause does not prohibit the introduction of
    out-of-court statements that would have been admissible
    in a criminal case at the time of the founding. See Giles v.
    California, 
    554 U.S. 353
    , 358–359 (2008); 
    Crawford, 541 U.S., at 56
    , n. 6, 62. Thus, the primary purpose test is a
    necessary, but not always sufficient, condition for the
    exclusion of out-of-court statements under the Confronta-
    tion Clause.
    B
    In this case, we consider statements made to preschool
    teachers, not the police. We are therefore presented with
    the question we have repeatedly reserved: whether state-
    ments to persons other than law enforcement officers are
    subject to the Confrontation Clause. Because at least
    some statements to individuals who are not law enforce-
    ment officers could conceivably raise confrontation con-
    cerns, we decline to adopt a categorical rule excluding
    them from the Sixth Amendment’s reach. Nevertheless,
    such statements are much less likely to be testimonial
    than statements to law enforcement officers. And consid-
    ering all the relevant circumstances here, L. P.’s state-
    ments clearly were not made with the primary purpose of
    creating evidence for Clark’s prosecution. Thus, their
    introduction at trial did not violate the Confrontation
    Clause.
    L. P.’s statements occurred in the context of an ongoing
    emergency involving suspected child abuse. When L. P.’s
    8                           OHIO v. CLARK
    Opinion of the Court
    teachers noticed his injuries, they rightly became worried
    that the 3-year-old was the victim of serious violence.
    Because the teachers needed to know whether it was safe
    to release L. P. to his guardian at the end of the day, they
    needed to determine who might be abusing the child.2
    Thus, the immediate concern was to protect a vulnerable
    child who needed help. Our holding in Bryant is instruc-
    tive. As in Bryant, the emergency in this case was ongo-
    ing, and the circumstances were not entirely clear. L. P.’s
    teachers were not sure who had abused him or how best to
    secure his safety. Nor were they sure whether any other
    children might be at risk. As a result, their questions and
    L. P.’s answers were primarily aimed at identifying and
    ending the threat. Though not as harried, the conversa-
    tion here was also similar to the 911 call in Davis. The
    teachers’ questions were meant to identify the abuser in
    order to protect the victim from future attacks. Whether
    the teachers thought that this would be done by appre-
    hending the abuser or by some other means is irrelevant.
    And the circumstances in this case were unlike the inter-
    rogation in Hammon, where the police knew the identity
    of the assailant and questioned the victim after shielding
    her from potential harm.
    There is no indication that the primary purpose of the
    conversation was to gather evidence for Clark’s prosecu-
    tion. On the contrary, it is clear that the first objective
    was to protect L. P. At no point did the teachers inform
    L. P. that his answers would be used to arrest or punish
    his abuser. L. P. never hinted that he intended his state-
    ments to be used by the police or prosecutors. And the
    ——————
    2 In fact, the teachers and a social worker who had come to the school
    were reluctant to release L. P. into Clark’s care after the boy identified
    Clark as his abuser. But after a brief “stare-down” with the social
    worker, Clark bolted out the door with L. P., and social services were
    not able to locate the children until the next day. App. 92–102, 150–
    151.
    Cite as: 576 U. S. ____ (2015)            9
    Opinion of the Court
    conversation between L. P. and his teachers was informal
    and spontaneous. The teachers asked L. P. about his
    injuries immediately upon discovering them, in the infor-
    mal setting of a preschool lunchroom and classroom, and
    they did so precisely as any concerned citizen would talk
    to a child who might be the victim of abuse. This was
    nothing like the formalized station-house questioning in
    Crawford or the police interrogation and battery affidavit
    in Hammon.
    L. P.’s age fortifies our conclusion that the statements in
    question were not testimonial. Statements by very young
    children will rarely, if ever, implicate the Confrontation
    Clause. Few preschool students understand the details of
    our criminal justice system. Rather, “[r]esearch on chil-
    dren’s understanding of the legal system finds that” young
    children “have little understanding of prosecution.” Brief
    for American Professional Society on the Abuse of Chil-
    dren as Amicus Curiae 7, and n. 5 (collecting sources).
    And Clark does not dispute those findings. Thus, it is
    extremely unlikely that a 3-year-old child in L. P.’s posi-
    tion would intend his statements to be a substitute for
    trial testimony. On the contrary, a young child in these
    circumstances would simply want the abuse to end, would
    want to protect other victims, or would have no discernible
    purpose at all.
    As a historical matter, moreover, there is strong evi-
    dence that statements made in circumstances similar to
    those facing L. P. and his teachers were admissible at
    common law. See Lyon & LaMagna, The History of Chil-
    dren’s Hearsay: From Old Bailey to Post-Davis, 
    82 Ind. L
    . J. 1029, 1030 (2007); see also 
    id., at 1041–1044
    (exam-
    ining child rape cases from 1687 to 1788); J. Langbein,
    The Origins of Adversary Criminal Trial 239 (2003) (“The
    Old Bailey” court in 18th-century London “tolerated fla-
    grant hearsay in rape prosecutions involving a child victim
    who was not competent to testify because she was too
    10                     OHIO v. CLARK
    Opinion of the Court
    young to appreciate the significance of her oath”). And
    when 18th-century courts excluded statements of this sort,
    see, e.g., King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202
    (K. B. 1779), they appeared to do so because the child
    should have been ruled competent to testify, not because
    the statements were otherwise inadmissible. See Lyon &
    
    LaMagna, supra, at 1053
    –1054. It is thus highly doubtful
    that statements like L. P.’s ever would have been under-
    stood to raise Confrontation Clause concerns. Neither
    Crawford nor any of the cases that it has produced has
    mounted evidence that the adoption of the Confrontation
    Clause was understood to require the exclusion of evidence
    that was regularly admitted in criminal cases at the time
    of the founding. Certainly, the statements in this case are
    nothing like the notorious use of ex parte examination in
    Sir Walter Raleigh’s trial for treason, which we have
    frequently identified as “the principal evil at which the
    Confrontation Clause was directed.” 
    Crawford, 541 U.S., at 50
    ; see also 
    Bryant, 562 U.S., at 358
    .
    Finally, although we decline to adopt a rule that state-
    ments to individuals who are not law enforcement officers
    are categorically outside the Sixth Amendment, the fact
    that L. P. was speaking to his teachers remains highly
    relevant. Courts must evaluate challenged statements in
    context, and part of that context is the questioner’s iden-
    tity. See 
    id., at 369.
    Statements made to someone who is
    not principally charged with uncovering and prosecuting
    criminal behavior are significantly less likely to be testi-
    monial than statements given to law enforcement officers.
    See, e.g., 
    Giles, 554 U.S., at 376
    . It is common sense that
    the relationship between a student and his teacher is very
    different from that between a citizen and the police. We
    do not ignore that reality. In light of these circumstances,
    the Sixth Amendment did not prohibit the State from
    introducing L. P.’s statements at trial.
    Cite as: 576 U. S. ____ (2015)           11
    Opinion of the Court
    III
    Clark’s efforts to avoid this conclusion are all off-base.
    He emphasizes Ohio’s mandatory reporting obligations, in
    an attempt to equate L. P.’s teachers with the police and
    their caring questions with official interrogations. But the
    comparison is inapt. The teachers’ pressing concern was
    to protect L. P. and remove him from harm’s way. Like all
    good teachers, they undoubtedly would have acted with
    the same purpose whether or not they had a state-law
    duty to report abuse. And mandatory reporting statutes
    alone cannot convert a conversation between a concerned
    teacher and her student into a law enforcement mission
    aimed primarily at gathering evidence for a prosecution.
    It is irrelevant that the teachers’ questions and their
    duty to report the matter had the natural tendency to
    result in Clark’s prosecution. The statements at issue in
    Davis and Bryant supported the defendants’ convictions,
    and the police always have an obligation to ask questions
    to resolve ongoing emergencies. Yet, we held in those
    cases that the Confrontation Clause did not prohibit in-
    troduction of the statements because they were not pri-
    marily intended to be testimonial. Thus, Clark is also
    wrong to suggest that admitting L. P.’s statements would
    be fundamentally unfair given that Ohio law does not
    allow incompetent children to testify. In any Confronta-
    tion Clause case, the individual who provided the out-of-
    court statement is not available as an in-court witness,
    but the testimony is admissible under an exception to the
    hearsay rules and is probative of the defendant’s guilt.
    The fact that the witness is unavailable because of a dif-
    ferent rule of evidence does not change our analysis.
    Finally, Clark asks us to shift our focus from the context
    of L. P.’s conversation with his teachers to the jury’s per-
    ception of those statements. Because, in his view, the
    “jury treated L. P.’s accusation as the functional equiva-
    lent of testimony,” Clark argues that we must prohibit its
    12                     OHIO v. CLARK
    Opinion of the Court
    introduction. Brief for Respondent 42. Our Confrontation
    Clause decisions, however, do not determine whether a
    statement is testimonial by examining whether a jury
    would view the statement as the equivalent of in-court
    testimony. The logic of this argument, moreover, would
    lead to the conclusion that virtually all out-of-court state-
    ments offered by the prosecution are testimonial. The
    prosecution is unlikely to offer out-of-court statements
    unless they tend to support the defendant’s guilt, and all
    such statements could be viewed as a substitute for in-
    court testimony. We have never suggested, however, that
    the Confrontation Clause bars the introduction of all out-
    of-court statements that support the prosecution’s case.
    Instead, we ask whether a statement was given with the
    “primary purpose of creating an out-of-court substitute
    for trial testimony.” 
    Bryant, supra, at 358
    . Here, the an-
    swer is clear: L. P.’s statements to his teachers were not
    testimonial.
    IV
    We reverse the judgment of the Supreme Court of Ohio
    and remand the case for further proceedings not incon-
    sistent with this opinion.
    It is so ordered.
    Cite as: 576 U. S. ____ (2015)                              1
    SCALIA, J., concurring in judgment
    NOTICE: This opinion is subject to formal revision before publication in the
    preliminary print of the United States Reports. Readers are requested to
    notify the Reporter of Decisions, Supreme Court of the United States, Wash­
    ington, D. C. 20543, of any typographical or other formal errors, in order
    that corrections may be made before the preliminary print goes to press.
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 13–1352
    _________________
    OHIO, PETITIONER v. DARIUS CLARK
    ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO
    [June 18, 2015]
    JUSTICE SCALIA, with whom JUSTICE GINSBURG joins,
    concurring in the judgment.
    I agree with the Court’s holding, and with its refusal to
    decide two questions quite unnecessary to that holding:
    what effect Ohio’s mandatory-reporting law has in trans­
    forming a private party into a state actor for Confronta­
    tion Clause purposes, and whether a more permissive
    Confrontation Clause test—one less likely to hold the
    statements testimonial—should apply to interrogations by
    private actors. The statements here would not be testi­
    monial under the usual test applicable to informal police
    interrogation.
    L. P.’s primary purpose here was certainly not to invoke
    the coercive machinery of the State against Clark. His age
    refutes the notion that he is capable of forming such a
    purpose. At common law, young children were generally
    considered incompetent to take oaths, and were therefore
    unavailable as witnesses unless the court determined the
    individual child to be competent. Lyon & LaManga, The
    History of Children’s Hearsay: From Old Bailey to Post-
    Davis, 
    82 Ind. L
    . J. 1029, 1030-1031 (2007). The incon­
    sistency of L. P.’s answers—making him incompetent to
    testify here—is hardly unusual for a child of his age. And
    2                      OHIO v. CLARK
    SCALIA, J., concurring in judgment
    the circumstances of L. P.’s statements objectively indicate
    that even if he could, as an abstract matter, form such a
    purpose, he did not. Nor did the teachers have the pri­
    mary purpose of establishing facts for later prosecution.
    Instead, they sought to ensure that they did not deliver an
    abused child back into imminent harm. Nor did the con­
    versation have the requisite solemnity necessary for tes­
    timonial statements. A 3-year-old was asked questions by
    his teachers at school. That is far from the surroundings
    adequate to impress upon a declarant the importance of
    what he is testifying to.
    That is all that is necessary to decide the case, and all
    that today’s judgment holds.
    I write separately, however, to protest the Court’s shov­
    eling of fresh dirt upon the Sixth Amendment right of
    confrontation so recently rescued from the grave in Craw-
    ford v. Washington, 
    541 U.S. 36
    (2004). For several dec­
    ades before that case, we had been allowing hearsay
    statements to be admitted against a criminal defendant if
    they bore “ ‘indicia of reliability.’ ” Ohio v. Roberts, 
    448 U.S. 56
    , 66 (1980). Prosecutors, past and present, love
    that flabby test. Crawford sought to bring our application
    of the Confrontation Clause back to its original meaning,
    which was to exclude unconfronted statements made by
    witnesses—i.e., statements that were 
    testimonial. 541 U.S., at 51
    . We defined testimony as a “ ‘solemn declara­
    tion or affirmation made for the purpose of establishing or
    proving some fact,’ ” ibid.—in the context of the Confronta­
    tion Clause, a fact “potentially relevant to later criminal
    prosecution,” Davis v. Washington, 
    547 U.S. 813
    , 822
    (2006).
    Crawford remains the law. But when else has the
    categorical overruling, the thorough repudiation, of an
    earlier line of cases been described as nothing more than
    “adopt[ing] a different approach,” ante, at 4—as though
    Crawford is only a matter of twiddle-dum twiddle-dee
    Cite as: 576 U. S. ____ (2015)            3
    SCALIA, J., concurring in judgment
    preference, and the old, pre-Crawford “approach” remains
    available? The author unabashedly displays his hostility
    to Crawford and its progeny, perhaps aggravated by in-
    ability to muster the votes to overrule them. Crawford
    “does not rank on the [author of the opinion’s] top-ten list
    of favorite precedents—and . . . the [author] could not
    restrain [himself] from saying (and saying and saying) so.”
    Harris v. Quinn, 573 U. S. ___, ___ (2014) (KAGAN, J.,
    dissenting) (slip op., at 15).
    But snide detractions do no harm; they are just indica­
    tions of motive. Dicta on legal points, however, can do
    harm, because though they are not binding they can mis­
    lead. Take, for example, the opinion’s statement that the
    primary-purpose test is merely one of several heretofore
    unmentioned conditions (“necessary, but not always suffi­
    cient”) that must be satisfied before the Clause’s protec­
    tions apply. Ante, at 7. That is absolutely false, and has
    no support in our opinions. The Confrontation Clause
    categorically entitles a defendant to be confronted with the
    witnesses against him; and the primary-purpose test sorts
    out, among the many people who interact with the police
    informally, who is acting as a witness and who is not.
    Those who fall into the former category bear testimony,
    and are therefore acting as “witnesses,” subject to the
    right of confrontation. There are no other mysterious
    requirements that the Court declines to name.
    The opinion asserts that future defendants, and future
    Confrontation Clause majorities, must provide “evidence
    that the adoption of the Confrontation Clause was under­
    stood to require the exclusion of evidence that was regu­
    larly admitted in criminal cases at the time of the found­
    ing.” Ante, at 10. This dictum gets the burden precisely
    backwards—which is of course precisely the idea. Defend­
    ants may invoke their Confrontation Clause rights once
    they have established that the state seeks to introduce
    testimonial evidence against them in a criminal case
    4                      OHIO v. CLARK
    SCALIA, J., concurring in judgment
    without unavailability of the witness and a previous op­
    portunity to cross-examine. The burden is upon the prose­
    cutor who seeks to introduce evidence over this bar to
    prove a long-established practice of introducing specific
    kinds of evidence, such as dying declarations, see Craw-
    
    ford, supra, at 56
    , n. 6, for which cross-examination was
    not typically necessary. A suspicious mind (or even one
    that is merely not naïve) might regard this distortion as
    the first step in an attempt to smuggle longstanding hear­
    say exceptions back into the Confrontation Clause—in
    other words, an attempt to return to Ohio v. Roberts.
    But the good news is that there are evidently not the
    votes to return to that halcyon era for prosecutors; and
    that dicta, even calculated dicta, are nothing but dicta.
    They are enough, however, combined with the peculiar
    phenomenon of a Supreme Court opinion’s aggressive
    hostility to precedent that it purports to be applying, to
    prevent my joining the writing for the Court. I concur
    only in the judgment.
    Cite as: 576 U. S. ____ (2015)           1
    THOMAS, J., concurring in judgment
    SUPREME COURT OF THE UNITED STATES
    _________________
    No. 13–1352
    _________________
    OHIO, PETITIONER v. DARIUS CLARK
    ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO
    [June 18, 2015]
    JUSTICE THOMAS, concurring in the judgment.
    I agree with the Court that Ohio mandatory reporters
    are not agents of law enforcement, that statements made
    to private persons or by very young children will rarely
    implicate the Confrontation Clause, and that the admis-
    sion of the statements at issue here did not implicate that
    constitutional provision. I nonetheless cannot join the
    majority’s analysis. In the decade since we first sought to
    return to the original meaning of the Confrontation
    Clause, see Crawford v. Washington, 
    541 U.S. 36
    (2004),
    we have carefully reserved consideration of that Clause’s
    application to statements made to private persons for a
    case in which it was squarely presented. See, e.g., Michi-
    gan v. Bryant, 
    562 U.S. 344
    , 357, n. 3 (2011).
    This is that case; yet the majority does not offer clear
    guidance on the subject, declaring only that “the primary
    purpose test is a necessary, but not always sufficient,
    condition” for a statement to fall within the scope of the
    Confrontation Clause. Ante, at 7. The primary purpose
    test, however, is just as much “an exercise in fiction . . .
    disconnected from history” for statements made to private
    persons as it is for statements made to agents of law en-
    forcement, if not more so. See 
    Bryant, supra, at 379
    (THOMAS, J., concurring in judgment) (internal quotation
    marks omitted). I would not apply it here. Nor would I
    leave the resolution of this important question in doubt.
    Instead, I would use the same test for statements to
    2                       OHIO v. CLARK
    THOMAS, J., concurring in judgment
    private persons that I have employed for statements to
    agents of law enforcement, assessing whether those
    statements bear sufficient indicia of solemnity to qualify
    as testimonial. See 
    Crawford, supra, at 51
    ; Davis v.
    Washington, 
    547 U.S. 813
    , 836–837 (2006) (THOMAS, J.,
    concurring in judgment in part and dissenting in part).
    This test is grounded in the history of the common-law
    right to confrontation, which “developed to target particu-
    lar practices that occurred under the English bail and
    committal statutes passed during the reign of Queen
    Mary, namely, the civil-law mode of criminal procedure,
    and particularly its use of ex parte examinations as evi-
    dence against the accused.” 
    Id., at 835
    (internal quotation
    marks omitted). Reading the Confrontation Clause in
    light of this history, we have interpreted the accused’s
    right to confront “the witnesses against him,” U. S. Const.,
    Amdt. 6, as the right to confront those who “bear testi-
    mony” against him, 
    Crawford, 541 U.S., at 51
    (relying on the
    ordinary meaning of “witness”). And because “[t]estimony
    . . . is . . . a solemn declaration or affirmation made for the
    purpose of establishing or proving some fact,” 
    ibid. (inter- nal quotation
    marks and brackets omitted), an analysis of
    statements under the Clause must turn in part on their
    solemnity, 
    Davis, supra, at 836
    (opinion of THOMAS, J.).
    I have identified several categories of extrajudicial
    statements that bear sufficient indicia of solemnity to fall
    within the original meaning of testimony. Statements
    “contained in formalized testimonial materials, such as
    affidavits, depositions, prior testimony, or confessions”
    easily qualify. White v. Illinois, 
    502 U.S. 346
    , 365 (1992)
    (THOMAS, J., concurring in part and concurring in judg-
    ment). And statements not contained in such materials
    may still qualify if they were obtained in “a formalized
    dialogue”; after the issuance of the warnings required by
    Miranda v. Arizona, 
    384 U.S. 436
    (1966); while in police
    custody; or in an attempt to evade confrontation. Davis,
    Cite as: 576 U. S. ____ (2015)            3
    THOMAS, J., concurring in 
    judgment supra, at 840
    (opinion of THOMAS, J.); see also 
    Bryant, 562 U.S., at 379
    (same) (summarizing and applying test).
    That several of these factors seem inherently inapplicable
    to statements made to private persons does not mean that
    the test is unsuitable for analyzing such statements. All it
    means is that statements made to private persons rarely
    resemble the historical abuses that the common-law right
    to confrontation developed to address, and it is those
    practices that the test is designed to identify.
    Here, L. P.’s statements do not bear sufficient indicia of
    solemnity to qualify as testimonial. They were neither
    contained in formalized testimonial materials nor obtained
    as the result of a formalized dialogue initiated by police.
    Instead, they were elicited during questioning by L. P.’s
    teachers at his preschool. Nor is there any indication that
    L. P.’s statements were offered at trial to evade confronta-
    tion. To the contrary, the record suggests that the prose-
    cution would have produced L. P. to testify had he been
    deemed competent to do so. His statements bear no “re-
    semblance to the historical practices that the Confronta-
    tion Clause aimed to eliminate.” 
    Ibid. The admission of
    L. P.’s extrajudicial statements thus does not implicate the
    Confrontation Clause.
    I respectfully concur in the judgment.