Ohio v. Clark (13-1352)

argument 13-1352

Ohio v. Clark

Supreme Court of the United States 57 min 7 speakers 8 chapters transcribed 4 days ago official recording ↗

▲ 0

Transcript

jump: chapters · speakers · find in transcript

Transcript

Transcript generated automatically by AI and may contain errors.

What is the central legal issue in Ohio v. Clark regarding the Confrontation Clause?

John G. Roberts 0:00

We'll hear argument next this morning in case 13-1352, Ohio v. Clark. Mr. Meyer.

Unknown 0:08

Thank you, Mr. Chief Justice, and may it please the Court. In cases of foul acts done in secret where the child is the party injured, the repelling of their evidence entirely is in some measure denying them the protection of the law. That 254-year-old passage, I think, quite accurately predicts the situation we find ourselves in in Ohio following the decision of the Ohio Supreme Court in this case, we believe, misapplying the Sixth Amendment Confrontation Clause to these facts. We believe the Ohio Supreme Court erred in two fundamental ways. First, when it held that private parties who are acting with no police involvement are by virtue of their mandatory reporter status, are transformed into law enforcement agents or agents of the government for purposes of the confrontation clause analysis.

Antonin Scalia 1:07

Do you have to be an agent of the government for the confrontation clause to kick in?

Unknown 1:14

Based on this Court's post-Crawford decisions, We believe that that is the primary

Antonin Scalia 1:21

analysis that should be conducted. Not primary. I'm asking, is it exclusive that no person who's not an agent of the government can trigger a confrontation clause protection? I mean, that's clearly not true. I mean, you can have a cross-examination in a civil case. A lawyer in a civil case has somebody on the stand.

Unknown 1:48

Well, in a civil case, I would agree that that is testimonial evidence, but purely private people. That's a private person. Well, in a civil case, Your Honor, I believe that official solemnity that attaches to the oath that a witness is taking and understanding —

Antonin Scalia 2:04

Well, it's a question of solemnity. But solemnity has nothing to do with whether you're a civilian or a policeman.

Unknown 2:12

Well, going back to Crawford itself and what this Court explained was the purpose — behind the Sixth Amendment when the framers adopted it was to prevent a very specific kind of abuse, and that's government agents who are investigating crimes for purposes of a criminal prosecution. And when you reduce it to the level of a three-and-a-half-year-old child talking to his daycare teacher, I would submit that that is — Far removed.

Elena Kagan 2:41

Isn't the test whether the statement is intended to be testimonial in nature?

Unknown 2:48

Yes, Justice Sotomayor.

Elena Kagan 2:50

So whether it's given to a private individual or a police officer is irrelevant. The question is, was it intended to substitute for testimony, to be used later?

Unknown 3:00

That is the test that this Court has announced in Davis, certainly. But we have submitted, I think, perhaps a threshold statement formulation maybe, before you get to primary purpose, and this Court has consistently applied it to law enforcement actors, when you talk about private persons, I think that is an easier test. Coming from this as a boots-on-the-ground trial prosecutor and trying to predict the way that primary purpose test is going to be applied, I would suggest the private party analysis as a first step would lead to more predictable results. Certainly-

Ruth Bader Ginsburg 3:36

Mr. Meyer, could you explain one anomaly in this case? The child, three and a half years old, is incompetent to appear in court as a witness. How can the substitute- be permissible. If the child is incompetent to testify in court, why isn't the child incompetent to testify to make the same statement out of court?

Unknown 4:09

Respectfully, Justice Ginsburg, I think it would be a mistake to say that his incapability, his incompetence for purposes of the courtroom setting means that nothing he's ever said on planet Earth could be taken as a reliable statement. Any parent knows that talking to their three-year-old, certain things they say can be relied upon. The Ohio rule, Evidence Rule 807, which is modeled, I think, off of this Court's opinion in Idaho v. Wright somewhat, applies very rigorous factors to determine reliability. And so I think the choice for a prosecutor is not between live testimony and hearsay, I think when you deal with a three-year-old, it's a choice between hearsay and nothing.

Antonin Scalia 4:54

Well, that goes to the hearsay rule.