Prior to 2015 those seeking to protect young, abused children often ran into trouble proving the case when the only witness to the abuse was the child him or herself. They we got Ohio v. Clark.  In 2010, Darius Clark was convicted of felonious assault and child endangering for abusing a three-year-old boy, his girlfriend’s son. Because the boy was deemed “incompetent” to testify due to his very young age, prosecutors called the boy’s Head Start Program teacher to testify, to provide information as to who had caused the bruises and the swelling on the boy’s face one day. The teacher stated that when the boy was asked who had hurt him, the boy stated it was Clark.
This case reached the U.S. Supreme Court because Clark claimed that the trial court made an error in allowing the teacher to provide that testimony. It was an error, he believes, because it denied him his 6th Amendment right to confront his accuser, the young boy. As a result, the court had to decide whether “out-of-court statements that children make to their teachers about abuse can be used as evidence if a child is unable to testify in person.”
Previously, the court had held that such statements, if made to law enforcement officers, would be hearsay, and thus would not be admissible. Because teachers are legally required to report suspected child abuse to law enforcement, Clark’s attorneys argued that “teachers are in the same position as law enforcement officials when they question children” in these situations. The Ohio state Appeals Court and the Ohio Supreme Court agreed, overturning his conviction.
In response, the lawyers representing Ohio asserted that the right to confront accusers applies only if (1) it is a government official or one of their agents talking to the child, and (2) the official or agent is talking to the child in preparation for a criminal prosecution. Where teachers are talking to students, he posited, “it's simply a conversation between a teacher and student;” such conversations are to “protect children from immediate harm and remove them from danger, not to compile evidence for a criminal prosecution.” This is an opinion shared by forty-two other states, citing concerns that to rule otherwise would shield abusers from prosecution.
SCOTUS held that such statements from a child to their teacher were non-testimonial, and thus their use did not violate the confrontation clause. This was so because the totality of the circumstances indicated that the main purpose of the conversation was to respond to the “emergency situation” presented to the teacher when a potentially abused child may be sent home to their abusive parents/guardians, not to create an out-of-court substitute for trial testimony. Further, the court stated that as children are relatively unfamiliar with the way our court systems worked, it was improbable that the child thought they were speaking for the purpose of creating evidence.
 Ohio v. Clark, 576 U.S. ___(2015).
 This argument has faced challenges from legal scholars who note that “ not one state court has previously made a child’s intent or purpose (or lack thereof) the linchpin of a decision.” (See Ohio v. Clark, Response by Professor Joan S. Meier, The George Washington Law Review at https://www.gwlr.org/ohio-v-clark/)
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