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

(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.