The Road to Understanding the Confrontation Clause: Ohio v. Clark Makes a U-Turn

AuthorJulien Petit
PositionJ.D./D.C.L., 2017, Paul M. Hebert Law Center, Louisiana State University.
Pages175-208
The Road to Understanding the Confrontation
Clause: Ohio v. Clark Makes a U-Turn
INTRODUCTION
A police officer, a psychologist, and an emergency room doctor
walked into a bar. The three took their seats near the back of the bar, where
the front area was no longer visible. While waiting for their first round, a
man burst into the bar, mugged a patron, and ran out the door. Although
none of the three saw the mugger or the victim, they heard the mugging
and reacted. All three rushed to the front of the bar and saw the victim
standing in shock. The patron clutched his chest and began to have a heart
attack. The officer, doctor, and psychologist all asked the patron, “What
happened?” With his dying breath the patron said, “John Johnson.” Later,
the police arrested John Johnson after determining that not only was John
in the area that night, but the patron owed him a large debt. No witnesses
saw John mug the patron. The only direct evidence that linked the arrestee
to the crime was the patron’s dying statement: “John Johnson.” Before
determining whether this out-of-court statement is admissible under a
hearsay exception, it must first meet the scrutinizing standards of the
Confrontation Clause.1
The United States Supreme Court held i n Ohio v. Clark that the
primary purpose of a statement determines whether said statement is
testimonial, which in turn determines whether under the Confrontation
Clause it enters into evidence at trial.2 The purpose of the questioner and
the speaker in an interrogation are both relevant.3 If the primary purpose
of the questioning was to create a substitute for in-court testimony, then
the statement cannot enter into trial without the presence of the declarant
or a prior opportunity to cross-examine him or her.4
Looking to the purpose of the three patrons’ conversation with the
victim, the doctor likely wanted to render medical assistance to a person
clutching his chest, not elicit statements that would lead to prosecution.
Copyright 2016, by JULIEN PETIT.
1. U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall . . .
be confronted with the witnesses against him . . . .”). The focus of this Comment is on
the admissibility of statements under the Confrontation Clause, not whether a
statement meets a hearsay exception or the consequences of hearsay statements.
2. Ohio v. Clark, 135 S. Ct. 2173 (2015). Assuming the statement also meets
one of the hearsay exceptions and meets the Confrontation Clause’s requirements,
it will enter into evidence.
3. Michigan v. Bryant, 562 U.S. 344, 367–68 (2011).
4. See discussion infra Part I.C.1.
176 LOUISIANA LAW REVIEW [Vol. 77
The psychologist could have been asking the victim what happened to him
for a multitude of reasons. The officer’s purpose could have been one of
two possible reasons: to assist in the ongoing emergency of the patron’s
heart attack or to identify the perpetrator. Although the mugger’s freedom
to move freely and commit future crimes could be a threat to the public,
rendering this emergency ongoing, police officers have a duty to
investigate and arrest criminals, which points to a prosecutorial purpose.5
Since Crawford v. Washington,6 lower courts have struggled to apply
the testimonial standard and the Supreme Court has attempted to clarify
its interpretation of what statements are testimonial.7 Most of the Court’s
rulings reference only certain principles in Crawford applicable to the
circumstances of the case without referencing the other jurisprudence
available. Lower courts have interpreted these selective holdings to mean
that the Supreme Court prioritized one aspect of the Crawford ruling and
purposefully omitted other parts of the ruling from the analysis.8
In 2015, in Ohio v. Clark, the Supreme Court addressed some of these
issues arising from Crawford and subsequent cases.9 Although the Court
attempted to provide clarity, its most recent ruling created more
complexity and vagueness in the analysis of testimonial statements. A
clearer analysis is needed to mitigate the interpretive problems that courts
confront under the Confrontation Clause.
Part I of this Comment discusses the Confrontation Clause and
summarizes the state of the law before Ohio v. Clark. Part II explains the
holding and reasoning of the Court’s decision in Ohio v. Clark. Part III
analyzes the problems that the decision caused and how these problems
affect t he admissibility of statements into evidence. Part IV proposes a
two-part test to be applied under the Confrontation Clause, eliminating
confusion and providing a clear analysis for lower courts to adopt.
5. See discussion infra Part I.C.1.
6. Crawford v. Washington, 541 U.S. 36 (2004).
7. Andrew W. Eichner, The Failures of Melendez-Diaz v. Massachusetts and
the Unstable Confrontation Clause, 38 AM. J. CRIM. L. 437, 441 (2011). The Supreme
Court declined to articulate an all-encompassing definition of “testimonial.” See
Crawford, 541 U.S. at 68.
8. See Clark v. State, 199 P.3d 1203, 1208 (Alaska Ct. App. 2009) (stating
that the objective witness test was improper to use based on a recent Supreme
Court ruling).
9. Ohio v. Clark, 135 S. Ct. 2173 (2015).
2016] COMMENT 177
I. BACKGROUND: EVOLUTION OF THE CONFRONTATION CLAUSE
The Sixth Amendment, which contains the Confrontation Clause,
provides important rights to defendants in criminal trials. The Sixth
Amendment provides the following:
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
[defense].10
The procedural protection “to be confronted with the witnesses against
him” is known as the Confrontation Clause11 and applies to criminal cases
in both federal and state court.12 The underlying purpose of the
Confrontation Clause is to allow a criminal defendant to cross-examine a
witness testifying against him.13 The right to cross-examine the
prosecution’s witness during a criminal case guarantees the defendant’s
fundamental life and liberty14 and is an essential safeguard of a fair trial.15
A. The Confrontation Clause and Hearsay Exceptions
Initially, the Confrontation Clause was not controversial.16 The Clause
applied only to federal matters because the Bill of Rights was not
10. U.S. CONST. amend. VI (emphasis added).
11. Id.; Ohio v. Roberts, 448 U.S. 56, 62–63 (1980), abrogated by Crawford,
12. Crawford, 541 U.S. at 42 (citing Pointer v. Texas, 380 U.S. 400, 406
(1965)); see also Roberts, 448 U.S. at 62 (stating that the Fourteenth Amendment
renders the Confrontation Clause applicable to the states).
13. Pointer, 380 U.S. at 406–07. The right to confront a witness is
fundamental, and “certainly no one . . . would deny the value of cross-examination
in exposing false hood and bringing out the truth in the trial of a criminal case.”
Id. at 404.
14. See discussion infra Part I.A.
15. Pointer, 380 U.S. at 410 (Goldberg, J., concurring) (first citing Kirby v.
United States, 174 U.S. 4 7, 55 (1899); and then citing Alford v. United States,
282 U.S. 687, 692 (1931)).
16. Richard D. Friedman, Crawford, Davis, and Way Beyond, 15 J.L. &
POLY 553, 553 (2007).

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