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Arizona Criminal Law and Procedure Blog

Confrontation Clause Narrowed - Alito's Opinion Suggests Broad Opening for a Child's Hearsay

Posted by Adam Bleier | Jun 22, 2015 | 0 Comments

In Ohio v. Clark, the Supreme Court may have significantly narrowed the scope of its previous Crawford decision.  The decision may have significant implications for child abuse and child molest cases at the trial court and appellate levels.

The case involved comments that a three-year-old boy made to his teachers about physical abuse by the defendant.  Prosecutors used what the boy had said to his teachers evidence to help convict the defendant.  Under Ohio law, children under age ten are considered too young to be able to give testimony in court, so the boy was not called to the stand.  In addition, teachers are mandatory reporters, meaning that under Ohio law they have to report to law enforcement suspected abuse.

Clark's lawyers argued that using what the child told his teachers as evidence violated his constitutional rights to confront witnesses against him.

In the Crawford case 10 years ago, the Supreme Court barred out-of-court statements accusing someone of a crime if that person is not available to testify. It had left largely undecided whether that ruling applies when the statements were made to someone other than police.

In Thursday's ruling, the Court did not give a hard-and-fast answer to that question, but it did say that there could be circumstances — and the Cleveland case presented one such scenario — in which an out-of-court statement to someone other than police could be used at trial without violating the Confrontation Clause.  And, the opinion written by Justice Samuel A. Alito, Jr., went on to indicate that a child's out-of-court accusations almost never would be excluded from the trial under theCrawford precedent.

In general, Alito wrote that statements given to people other than the police “are much less likely” to be the kind of statements that would be barred under the Confrontation Clause.   The use of the boy's accusations. according to the ruling, did not violate Clark's Sixth Amendment rights.

The case has broad implications for defendants in child abuse and child molestation cases involving young accusers who are unavailable to testify.  If you are accused of such an offense, please contact the office of Sherick and Bleier at 520-318-3939.

About the Author

Adam Bleier

Mr. Bleier devotes 100% of his practice to criminal defense. He defends clients in state and federal court at both the misdemeanor and felony level. He also takes on appeals and post-conviction cases.

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