In the context of the Sixth Amendment's Confrontation Clause, regarding the primary purpose test, one additional factor is the informality of the situation and the interrogation. 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 purpose aimed at obtaining testimonial evidence against the accused. And in determining whether a statement is testimonial, standard rules of hearsay, designed to identify some statements as reliable, will be relevant. In the end, the question is whether, in light of all the circumstances, viewed objectively, the “primary purpose” of the conversation was to create an out-of-court substitute for trial testimony.
Respondent Darius Clark sent his girlfriend away to engage in prostitution 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 Amendments Confrontation 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.
Does the introduction of a child’s statements at trial violate the Sixth Amendment’s Confrontation Clause even if the child does not physically testify?
The Court held that the introduction of the child’s statements at trial did not violate the Confrontation Clause. Considering all the relevant circumstances, the Court ruled that child’s statements were not testimonial since they were not made with the primary purpose of creating evidence for the respondent’s prosecution - they occurred in the context of an ongoing emergency involving suspected child abuse. The Court noted that the child’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. Moreover, in the informal and spontaneous conversation between the child and his teachers, the former never hinted that he intended his statements to be used by the police or prosecutors. The child’s age further confirms that the statements in question were not testimonial because statements by very young children will rarely, if ever, implicate the Confrontation Clause.