The U.S. Supreme Court on Monday waded with trepidation into the subject of educators’ interactions with students about possible abuse at home, and whether a child’s statement to a teacher may be used in a criminal case without the accused having a chance to cross-examine the child.
“Ohio’s teachers, I think, are horrified to learn that the Supreme Court of Ohio [views] them no [differently] than cops when they’re talking to the children in their classrooms,” Matthew E. Meyer, an assistant prosecuting attorney in Cleveland, told the justices in a case in which Ohio is appealing a ruling by its highest court that the state’s mandatory-reporting duty for teachers to report child abuse turns them into agents of law enforcement.
But Jeffrey L. Fisher, a Stanford University law professor who is representing a man convicted of child-abuse charges based largely on a 3-year-old victim’s statements to two of his day-care teachers, said he was not asking for a rule that would bar prosecutors from using the testimony of young victims of abuse.
“All we are asking for is that a state not to be allowed to have it both ways, introducing such evidence while at the same time prohibiting the defense from any form of confrontation whatsoever,” Fisher said during the March 2 arguments in Ohio v. Clark (Case No. 13-1352).
Fisher argues that the state’s use of statements to the teachers by the 3-year-old child identified as L.P. violated the Sixth Amendment right of the defendant, Darius Clark, to confront the witnesses against him.
L.P. arrived at his Head Start center one day in 2010 with a bloodstained eye. Two teachers at the center questioned the boy about “who did this to you?” and whether it was “someone big or little” before L.P. identified “Dee,” in reference to Clark, who was his mother’s boyfriend.
The teachers, Ramona Whitley and Debra Jones, contacted Ohio’s child-welfare agency, which began an investigation that led to charges against Clark of felony assault and endangering children.
At Clark’s trial, L.P. was held to be too unreliable a witness, based on his testimony at a pretrial hearing and the state’s high bar for allowing children to testify at all. So prosecutors relied on the boy’s identification of Clark in the statements to his teachers.
The Ohio Supreme Court last year affirmed a midlevel appeals court’s decision to throw out the conviction because Clark’s confrontation-clause rights were violated since his lawyers could not cross-examine the child. The state high court went on to hold that the mandatory duty on teacher to report child abuse effectively made them agents of law enforcement because the state expected them to help identify the perpetrators of abuse.
The state high court ruling was alarming to education groups, and the National Education Association, the American Federation of Teachers and the National School Boards Association (and its Ohio affiliate) filed a friend-of-the-court brief urging the U.S. Supreme Court to reject that intepretation. (See my Education Week story previewing the case.)
The ‘Routine Role’ of Teachers
Meyer, arguing on behalf of Ohio, told the justices that “Ohio law does not impose upon any mandatory reporter a duty to investigate” suspected abuse.
The state had an ally in President Barack Obama’s administration, with the U.S. solicitor general’s office also arguing that the Ohio supreme court erred in finding that a mandatory-reporting duty turned teachers into the equivalent of the police.
“Teachers aren’t in the business of prosecution,” Ilana Eisenstein, an assistant to the U.S. solicitor general, told the justices in court. “They’re not in the business of collecting evidence, and as such, this court can generally presume that when they inquire of their students as to how they got hurt, they are asking out of a concern for welfare, safety, and out of their normal, routine role, not as a means of collecting evidence.”
Justice Elena Kagan asked her whether the context might be different if the student was a 13-year-old instead of a preschooler and the teacher informed the student of her mandatory-reporting duty to the point where “it’s pretty clear to both the teacher and the student that at the back of that conversation, is the presence of police.”
Eisenstein said that could be different under the Supreme Court’s confrontation-clause jurisprudence, which involves whether an out-of-court statement sought to be used by prosecutors is “testimonial” in nature.
Chief Justice John G. Roberts Jr. suggested that when a teacher goes from asking, “Who did this to you?” and determining that person is not an immediate threat, to “Has he done this before?”, that a line has been crossed.
“It’s not related to the immediate concerns or immediate safety but seems to be designed to compile a case,” he told Eisenstein.
Justice Ruth Bader Ginsburg, stressed to Fisher, the defendant’s lawyer, that the first reaction of a teacher to signs of abuse is to “get that child out of harm’s way.”
“So the teacher, I would think, is not thinking about prosecution down the road,” Ginsburg said, but rather, “‘What can I do to assure the safety of this child right now?’”
Fisher pointed to advice the state of Ohio gives to teachers in a guide on the mandatory duty to report, which includes “information which might be helpful establishing the cause of the abuse” and “the identity of the perpetrator,” as the guide puts it.
“So [the teacher] is gathering evidence,” Fisher said. “That’s what she’s told to do.”
“We don’t dispute that a teacher has a protective purpose, partly, in mind,” Fisher added. “And I think it’s absolutely natural that the teacher would. But the problem is, and our position is, that is inextricably intertwined with criminal prosecution as well.”
Fisher told the justices that the state of Texas has the rule that Ohio is effectively seeking in this case, which is a special child hearsay statute that allows only the first person to whom a child discloses abuse to repeat that extrajudicial accusation in court. The Texas attorney general’s office has advised teachers that they “may have an especially important role to play in subsequent legal proceedings,” as a 2005 document from the office puts it. The document also advises teachers that “important testimony could be lost” if they pass the child off to another person, because of the “first person” hearsay rule, Fisher’s merits brief pointed out.
“So you have already a system set up for prosecution by out-of-court ... accusation,” Fisher told the justices in court. “And that is exactly what the confrontation clause is designed to prohibit.”
A decision in the case is expected by late June.
A version of this news article first appeared in The School Law Blog.