1. CONFRONTATION CLAUSE UPDATE Matthew Meyer and T. Allan Regas Cuyahoga County Prosecutor’s Office

2. 6TH AMENDMENT OF THE UNITED STATES CONSTITUTION In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

3. 18 th Century English Common Law: Blackstone and the Old Bailey Cases In the first edition of his Commentaries, Blackstone suggested that the law “allow[ed] what the child told her mother, or other relations, to be given in evidence, since the nature of the case admits frequently of no better proof.” This view is evident in 18th-century practice. When judges found children incompetent, they “were disposed to compensate by allowing the mother, a surgeon, or others to whom the child had spoken contemporaneously upon the happening of the events to give an account of what the child had then said.” * * * Child hearsay was thus common ‘from 1684 to 1789.’” See Lyon and LaMagna, The History of Children's Hearsay: From Old Bailey to Post-Davis, 82 Ind. L.J. 1029, 1038 (2007), surveying available records of all Old Bailey rape cases from 1684 to 1788, finding 22 instances of admitted child victim hearsay.

4. 18 th Century English Common Law: Blackstone and the Old Bailey Cases Why does it matter? From Clark: “As a historical matter, moreover, there is strong evidence 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 Children’s Hearsay: From Old Bailey to Post-Davis, 82 Ind. L. J. 1029, 1030 (2007); see also id., at 1041–1044 (examining 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 flagrant hearsay in rape prosecutions involving a child victim who was not competent to testify because she was too young to appreciate the significance of her oath. * * * It is thus highly doubtful that statements like L. P.’s ever would have been understood to raise Confrontation Clause concerns.”

5. Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895) Facts: Defendant was prosecuted for murder, which was reversed. At the retrial, it was shown that two of the government witnesses died after the first trial. The notes of their testimony, taken by the stenographer were admitted at the retrial.

6. Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895) “We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject -- such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a Bill of Rights are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected.” 156 U.S. 237, 243

7. Mattox v. United States, 156 U.S. 237, 15 S. Ct. 337, 39 L. Ed. 409 (1895) Why it matters: In Crawford, the Court adopted Justice Scalia’s originalist view of what types of evidence would have been commonly admitted under common law at the time of the founding. Mattox explicitly provides foundation for this view, and recognizes the principle underlying it.

8. Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) Facts: The daughter of the victims testified that Defendant was permitted to use her apartment, but did not admit on examination by defendant’s counsel at a preliminary hearing that her parents checks and credit cards for which defendant was accused of forgery possession were his to use. At trial, the daughter did not appear. Defendant testified he had the victim’s daughter’s permission to use the checks and credit cards. The state introduced the testimony from the preliminary hearing.

9. Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) Holding: Justice Blackmun delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Rehnquist, JJ. joined. The introduction of the testimony from the preliminary hearing was constitutionally permissible and that “when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable.

10. Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) Holding: Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” 448 U.S. 56, 66.

11. Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) Why it matters: Roberts was used at criminal trials in order to enter hearsay evidence where it was admissible under a firmly rooted exception to the hearsay rule or itself exhibited sufficient indicia of reliability. The opinion did not confine those exceptions to those in existence at the time of the founding of the country.

12. CRAWFORD AND ITS LIMITS Right to Confrontation Redefined in the New Millennium

13. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) Facts: Crawford stabbed Kenneth Lee, a man he claimed tried to rape his wife. During Crawford's trial, Crawford’s wife did not testify on spousal-privilege grounds. Instead, prosecutors played for the jury Crawford’s wife's tape-recorded statement to the police describing the stabbing. The statement contradicted Crawford's argument that he stabbed the man in defense of his wife. Crawford was convicted of assault.

14. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) Holding: In a 9-0 opinion, the Court sided with Crawford and ruled that the Sixth Amendment's Confrontation Clause gives defendants the right to confront witnesses and cross-examine them, including testimony obtained by the police. The Court reasoned that the Framers intended the Confrontation Clause to prohibit out-of-court testimony as evidence against defendants. By allowing out-of-court testimony if it was "reliable," the Roberts decision departed from the Framers' intent.

15. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) Holding:"Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Notably, the Court did not define testimonial beyond stating that testimonial statements are formal declarations, i.e. those made to law enforcement or government personnel. The Court focused heavily on the use of ex parte affidavits during Sir Walter Raleigh’s trial for treason against the crown as an example of “the principal evil” the confrontation clause was designed to prevent.

16. Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) Why it matters: This is the case that changed the analysis of the Confrontation Clause in criminal trials. It defined the scope of the clause as reaching only “testimonial evidence’ leaving open for lower courts – and very quickly the Supreme Court - to further refine the meaning of testimonial.

17. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) Facts: In Davis v Washington, a domestic violence case, the state used portions of a 911 call in which the victim reported the events and in which the victim identified the defendant as the perpetrator. In Hammon v Indiana, the police responded to a domestic violence call and the victim made statements and signed and affidavit as to the events.

18. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) Holding: Justice Scalia wrote the opinion for the Court and was, joined by Roberts, Ch. J., and Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ. The Court affirmed the Washington Supreme Court’s judgment, but reversed the Indiana Supreme Court.

19. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) Holding: The Court held that statements are not testimonial when made during a police interrogation where the circumstances objectively indicate that the primary purpose of the interrogation is to allow police to deal with and ongoing emergency but they are testimonial when the circumstances objectively indicate that there is no ongoing emergency and when the primary purpose of the interrogation is to prove facts relevant for trial.

20. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) Rationale: Testimonial statements are not limited to those statements that are solemn declarations or affirmations to prove a fact and prior sworn testimony. Instead, the interrogation in these cases was to be viewed to whether the primary purpose of the questioning sought to respond to an ongoing emergency or whether they were designed to produce statements to prove facts for later prosecution..

21. Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) Why it matters: In this case, the statements at issue would be admissible under hearsay exceptions; however, they were the product of police questioning and were used to prove facts for the purposes of prosecution. This case matters as it created a limit on Crawford’s open definition of testimonial.

22. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Facts: Police in Massachusetts arrested Melendez-Diaz for selling cocaine and found several bags of cocaine apparently discarded by Melendez-Diaz while detained inside the police car. At trial, bags of the cocaine that police attributed to Melendez-Diaz were introduced into evidence along with drug analysis certificates prepared by the lab technician who analyzed the drugs and identified them as cocaine.

23. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Facts: The technician’s certificates of analysis contained the results of the forensic analysis performed on samples of the cocaine, contained the weight of the seized bags and identified the substance found was cocaine. The certificates of analysis were sworn before a notary public.

24. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Holding: A laboratory report prepared for use in a criminal prosecution is "testimonial" evidence and therefore governed by the Sixth Amendment Confrontation Clause, as explained in Crawford. Justice Scalia wrote for the majority and explained that the lab reports constitute affidavits which fall within the "core class of testimonial statements“ covered by the Confrontation Clause. When Melendez- Diaz was deprived of his right to confront the persons who created the lab reports used in testimony, his Sixth Amendment right was violated.

25. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Holding: The majority emphasized the strictly-testimonial purpose of the sworn certificates of analysis: “[N]ot only were the affidavits “‘made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,’” * * *, but under Massachusetts law the sole purpose of the affidavits was to provide “prima facie evidence of the composition, quality, and the net weight” of the analyzed substance.” [Citations omitted].

26. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Dissent: Justice Kennedy, joined by Justices Roberts, Breyer, and Alito, wrote that the majority had too-easily rejected the long held rule that scientific analysis could be introduced into evidence without testimony from the analyst who produced it. In an unusually blunt opinion, Justice Kennedy, condemned the majority opinion as “formalistic and pointless,” and wrote that “We learn now that we have misinterpreted the Confrontation Clause—hardly an arcane or seldom- used provision of the Constitution—for the first 218 years of its existence.

27. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Dissent: The immediate systemic concern is that the Court makes no attempt to acknowledge the real differences between laboratory analysts who perform scientific tests and other, more conventional witnesses—“witnesses” being the word the Framers used in the Confrontation Clause.”

28. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Dissent: Justice Kennedy emphasized that he believed the Confrontation Clause should be read to apply to traditional witnesses rather than scientific experts, and that other procedural safeguards, such as compulsory process, would safeguard a defendant’s right to challenge laboratory results in trial.

29. Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) Syllabus Facts: Michigan police dispatched to a gas station parking lot found Anthony Covington mortally wounded. Covington told them that he had been shot by respondent Bryant outside Bryant's house and had then driven himself to the lot. At trial, which occurred before Crawford and Davis were decided, the officers testified about what Covington said. Bryant was found guilty of second-degree murder.

30. Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) Holding: Justice Sotomayor wrote the opinion of the Courtjoined by Roberts, Ch. J., and Kennedy, Breyer, and Alito, JJ. The holding as reported at the Syllabus reads: Covington's identification and description of the shooter and the location of the shooting were not testimonial statements because they had a “primary purpose... to enable police assistance to meet an ongoing emergency.” Davis, 547 U.S., at 822

31. Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) Rationale: In Davis, the Court explained that “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the [interrogation's] primary purpose... is to enable police assistance to meet an ongoing emergency,” but they “are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the [interrogation's] primary purpose is to establish or prove past events potentially relevant to later criminal prosecution.” 547 U.S. at 822.

32. Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) Rationale: This primary purpose test is therefore to be conducted in light of all the circumstances, to include the statements and actions of both the declarant and the interrogators; these being “objective evidence of the primary purpose of the interrogation.” 562 U.S. 344, 367-368.

33. Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) Dissent: Justices Scalia dissents, finding that the court’s test should be based from the declarant’s point of view, not the interrogators’. He notes that such inquiry would lead to consistent results and notes the Court adopts a test that looks to the purposes of both police and declarant.

34. Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) Dissent: Justice Ginsburg agreed with Justice Scalia’s dissent finding the statements testimonial, but further noted that it may be an issue as to whether the historical exception to the confrontation clause, the dying declaration, would still be viable under the current jurisprudence of the Court.

35. Michigan v. Bryant, 562 U.S. 344, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011) Why it matters: The exact objective circumstances that are used to determine whether or not a statement is testimonial, in light of the test adopted in Davis are at issue in the Court. As illustrated by the dissent, the emphasis of any inquiry as to whether or not a statement is testimonial should be determined from the perspective of the declarant – not the interrogator.

36. Bullcoming v. New Mexico, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) Holding: A blood-alcohol test admitted without the actual testimony of the person who prepared the results can violate a criminal defendant's Sixth Amendment Confrontation Clause rights. The use of a testimonial surrogate to admit the blood-alcohol test did not distinguish the case from the prosecutor’s use of forensic test affidavits in Melendez-Diaz.

37. Bullcoming v. New Mexico, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) Dissent: Kennedy, Roberts, Alito, and Breyer. Justice Kennedy, writing for the dissent, reasoned that the prosecution’s use of “a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report” was “fully consistent with the Confrontation Clause and with well-established principles for ensuring that criminal trials are conducted in full accord with requirements of fairness and reliability and with the confrontation guarantee.”

38. Bullcoming v. New Mexico, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011) Why it matters: The dissenting justices would not strictly find that the Confrontation Clause is limited by history, and its exceptions.

39. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015)

41. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Syllabus Facts: 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.

42. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Syllabus Facts: 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 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.

43. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Procedural History: The trial court denied Clark’s motion to exclude L.P.s statements under the Confrontation Clause. The Eighth District Court of Appeals reversed the conviction on Confrontation Clause grounds, determining the primary purpose of the day care teachers was to produce testimonial statements. The Supreme Court of Ohio, in a divisive opinion, affirmed the Eighth District’s opinion, holding that teachers, by virtue of being mandatory reporters of child abuse were taking testimonial statements..

44. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Holding: Justice Alito delivered the opinion, with which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ. joined.

45. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) The Court applied the primary purpose test, noting that a statement is testimonial where 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, 131 S. Ct. 1143, 179 L. Ed. 2d 93.

46. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) The Court added that the test is to consider all relevant circumstances, but found that even though the test is met, not every statement will be barred, noting that the Confrontation Clause does not prohibit statements otherwise admissible at that time the Constitution was adopted. The Court declined to restrict the Confrontation Clause analysis to all statements not taken by private parties.

47. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Rationale: The Court continued to apply the primary purpose, with the consideration of all relevant circumstances, L.P.s statements to the daycare teachers were not testimonial. The child’s primary purpose in the statement was not prosecution, but were made in the context of an ongoing emergency, in which the teachers suspected child abuse. The questions did not inform L.P. that Clark would be arrested or punished and L.P. never raised these issues. The conversation was also informal and spontaneous.

48. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Rationale: Moreover, L.P.’s young age was a factor because statements by very young children will rarely be testimonial. Further, there is evidence that statements in similar circumstances were regularly admitted at common law. Finally, the Court noted that statements not made to law enforcement or others principally charged with uncovering and prosecuting crimes are less likely to be testimonial.

49. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Concurrence: Justice Scalia, joined by Ginsburg, J concurred in judgment but wrote separately to iterate that Crawford remains the law and the opinion’s dicta should not be read to further erode Crawford, noting that the dicta indicates that the primary purpose test is only one of several not yet determined conditions that would render statements non-testimonial.

50. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Concurrence: Justice Thomas concurred in judgment and urged that the test to be applied to determine whether statements are testimonial are whether they bear sufficient indicia of solemnity to fall within the original meaning of testimony. Justice Thomas has been consistent in this regard noting that affidavits, depositions, prior testimony, or confessions would qualify as testimonial under the Confrontatiion Clause

51. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Why it matters: The Clark majority distanced itself from a rigid and inflexible approach and applied a “totality of the circumstances” test for determining whether a statement was testimonial. Significantly, the Court seemed to flirt with re-incorporating a Roberts type reliability analysis when it explained that “in determining whether a statement is testimonial, standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”

52. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Why it matters: Although the Clark majority declined to hold that statements made to private individuals are categorically non- testimonial, it emphasized that such statements are rarely likely to be testimonial.

53. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Why it matters: The Clark majority also made it clear that the analysis to determine whether a statement was testimonial was not limited to the intent of the declarant or the questioner, and that courts must examine the statement within its proper context to determine whether it is testimonial.

54. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Why it matters: A child’s spontaneous statements to his teachers about injuries the teachers observed in school simply don’t fit the definition, even if the teacher has a mandatory duty to report child abuse to the state.

55. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Why it matters: Justice Scalia, in his concurrence, was aghast that the Clark majority was undermining his decision in Crawford by attempting, “to smuggle longstanding hearsay exceptions back into the Confrontation Clause—in other words, an attempt to return to Ohio v. Roberts.”

56. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) Why it matters: Justice Scalia, in his concurrence, was aghast that the Clark majority was undermining his decision in Crawford by attempting, “to smuggle longstanding hearsay exceptions back into the Confrontation Clause—in other words, an attempt to return to Ohio v. Roberts.”

57. OHIO SUPREME COURT CASE LAW

58. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834 (2006) Facts: A.M. reported to the police that her boyfriend’s boss (Stahl) had orally raped her. She was taken to the hospital and signed a consent to forensic exam form. The nurse and A.M. spoke during the exam. A.M. died before trial and the nurse testified. The nurse testified at a pre-trial hearing that A.M. told her that she had been raped by Stahl.

59. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834 (2006) Holding: Statements were non- testimonial under Confrontation Clause. Justices O’Donnell, Resnick, Lundberg Stratton, and O’Conner

60. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834 (2006) Rationale: The Court held that Crawford did not apply: the statements were made to a medical professional during an emergency room examination, not a police officer during a police interrogation. The Court distinguished Davis and Hammon from Stahl as those other cases involved statement to police officers.

61. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834 (2006) Rationale: The Court adopts the objective witness test: a testimonial statement includes one made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

62. State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834 (2006) Dissent: Justice Lanzinger, Pfeifer and Chief Justice Moyer. The dissent would hold that whether the statement is testimonial is determined by the declarant’s expectation. The dissent believes A.M. reasonably believed that her statements could be used later at trial. The dissent also points out that A.M. was not seeking diagnosis or treatment.

63. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742 (2010) Facts: Advocacy center has a purpose “’to provide a comprehensive, culturally competent, multidisciplinary response to allegations of child abuse in a dedicated, child friendly setting.’” Arnold, 2010-Ohio-2742, at ¶ 29 (Quoting Nancy Chandler, Children’s Advocacy Centers: Making a Difference One Child at a Time (2006), 28 Hamline J.Pub.L. & Policy 315, quoting National Children’s Alliance, Accreditation Guidelines for Children’s Advocacy Centers (2004).)

64. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742 (2010) Holding: 1.Statements made to interviewers at child-advocacy centers that serve primarily a forensic or investigative purpose are testimonial and are inadmissible pursuant to the Confrontation Clause when the declarant is unavailable for cross- examination. 2.Statements made to interviewers at child-advocacy centers that are made for medical diagnosis and treatment are nontestimonial and are admissible without offending the Confrontation Clause.

65. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742 (2010) Rationale: The Court looked to the primary purpose of the interview to determine whether M.A.’s statements were testimonial or not. It held that because the social worker acted in a dual capacity, the questions asked of M.A. must be examined to determine the primary purpose; if questions were made for the purpose of medical treatment and diagnosis, then the answers are admissible; if the questions were made to serve a primary purpose of a forensic or investigatory nature, the answers are testimonial and inadmissible because they are testimonial.

66. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742 (2010) Dissents: Justice Pfeifer would apply the primary purpose test and not parse the interview into segments and would find that a forensic interview cannot be both testimonial and nontestimonial without violating the Sixth Amendment right to counsel.

67. State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742 (2010) Dissents: Justice O’Donnell would not adopt a dual capacity test and parse the examination, finding that Marshall simply acted as an agent of law enforcement where the interview was conducted with no ongoing emergency and focused solely on confirming past events, especially where the medical history obtained by Marshall did not go further than the one given before.

68. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019. Facts: Charles Maxwell fatally shot Nichole McCorkle, who was a witness against him in a prior felonious assault and domestic violence case. Dr. David Dolinak performed the autopsy of Nichole McCorkle in 2005 and prepared the autopsy report. Dolinak then left the Cuyahoga County for a medical examiner’s job in Austin, Texas.

69. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019. Facts: The State introduced the autopsy report as a business record and had Dr. Joseph Felo testify about the autopsy. Felo based his testimony on examination of autopsy photographs and x-rays, as well as microscopic specimens taken during the autopsy, as well a review of Although Dr. Dolinak’s findings. Felo provided his own opinion concerning cause and manner of death, stating, "The cause of Nichole Anna Maria McCorkle's death is gunshot wounds of [the] head * * *. The manner of death is a homicide."

70. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019. Holding: For purposes of the Confrontation Clause, generally, autopsy reports are not (1) prepared for the primary purpose of accusing a targeted individual; or (2) prepared for the primary purpose of providing evidence in a criminal trial.

71. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019. Rationale: The Court looked to the primary purpose of the autopsy report. The court emphasized that the coroner’s statutory remains the same, regardless of whether there is a criminal case or not, to document the circumstances of a death.

72. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019. Rationale: An autopsy report that is neither prepared for the primary purpose of accusing a targeted individual nor prepared for the primary purpose of providing evidence in a criminal trial is nontestimonial and its admission into evidence at trial under Evid. R. 803(6) as a business record does not violate a defendant's Sixth Amendment confrontation rights.

73. State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019. Petition for writ of certiorari to the Supreme Court of Ohio denied. Maxwell v. Ohio, 2015 U.S. LEXIS 1194, 135 S. Ct. 1400, 191 L. Ed. 2d 372, 83 U.S.L.W. 3677 (U.S. 2015)

74. After Clark: Where do we go from here?

75. Justice v. Parris, 2015 U.S. Dist. LEXIS 105096 (W.D. Tenn. Aug. 11, 2015) In Clark, the Supreme Court addressed whether the Confrontation Clause barred admission of a child's statements to his preschool teacher identifying the defendant as the person who had caused his injuries. Although the Supreme Court "decline[d] to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment noted that:

76. Justice v. Parris, 2015 U.S. Dist. LEXIS 105096 (W.D. Tenn. Aug. 11, 2015) “[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than are statements made to law enforcement officers. It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police.”

77. Jones v. Lewis, 2015 U.S. Dist. LEXIS 112682 (C.D. Cal. July 14, 2015) Report and Recommendation of Magistrate Judge Paul Abrams (Adopted by court in Jones v. Lewis, 2015 U.S. Dist. LEXIS 112670 (C.D. Cal. Aug. 21, 2015))

78. Holloman v. Commonwealth, 65 Va. App. 147, 775 S.E.2d 434 (Va. Ct. App. 2015) “"[A] statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial." [Clark] Testimonial statements are the "sort [that] cause the declarant to be a 'witness.'" [Davis] Statements are testimonial when made during a police interrogation and "'the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.'" [Clark] Statements made "to individuals who are not law enforcement officers... are much less likely to be testimonial than statements to law enforcement officers." [Clark]

79. Holloman v. Commonwealth, 65 Va. App. 147, 775 S.E.2d 434 (Va. Ct. App. 2015) Certain documents, like medical reports created for treatment purposes, are nontestimonial. Sanders, 282 Va. at 164-65. "This is so because statements made for medical treatment purposes are not made in anticipation of or for use in an investigation or prosecution of a crime." Id. Similarly, business records are not testimonial because they are "created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial." Melendez-Diaz, 557 U.S. at 324.

80. Holloman v. Commonwealth, 65 Va. App. 147, 775 S.E.2d 434 (Va. Ct. App. 2015) “The gang notebook was used within the criminal organization for purposes of the gang and its members. Manning explained that she had been tested on its contents. The record does not reflect any reason to believe that the notebook was created for the purpose of a criminal investigation or prosecution. Consequently, the notebook was not testimonial and its admission, as well as the testimony about it, did not violate the appellant's Sixth Amendment right to confront witnesses against him.”

81. After Clark: Where do we go from here? Is the question of whether a statement is testimonial an adequate measure for reliability concerns?

82. After Clark: Where do we go from here? What is the future of the hearsay rules, and how should reliability concerns get raised?

83. After Clark: Where do we go from here? Due Process

84. After Clark: Where do we go from here? How do you determine whether a statement is testimonial?

85. Ohio v. Clark, 135 S. Ct. 2173, 192 L. Ed. 2d 306 (2015) WHAT DOES THIS MEAN?? 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, 131 S. Ct. 1143, 179 L. Ed. 2d 93. In the end, the question is whether, in light of all the circumstances, viewed objectively, the “primary purpose” of the conversation was to “creat[e] an out-of-court substitute for trial testimony.” Id., at 358, 131 S. Ct. 1143, 179 L. Ed. 2d 93.