Ohio v. Clark: A Bit of Confrontation Clarification, A Few Tantalizing Hints
Mar 01, 2017
Examine the impact of Ohio v. Clark on the admissibility of out-of-court statements by non-testifying witnesses in light of the Sixth Amendment, where the declarant is a young child or otherwise incapable of understanding the concept of prosecution or where made to individuals who are mandatory reporters of abuse.
Resource type
Strategies in Brief
Author(s)
Teresa Garvey (Attorney Advisor, AEquitas)
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The United States Supreme Court decision in Ohio v. Clark has been heralded by many prosecutors and legal scholars as significantly broadening the admissibility of evidence under the Confrontation Clause, as interpreted by Crawford v. Washington and its progeny. The decision does not break startling new ground, however; rather, the Court’s decision is one that flows more or less naturally from the Court’s previous pronouncements about what it is that makes a hearsay statement testimonial, and therefore inadmissible at trial unless the witness is subject to cross-examination, either at trial or (in the case of a witness unavailable for trial) at a prior proceeding. This article reviews the opinion's direction and guidance to trial courts (and prosecutors) about the admissibility of statements made to individuals not affiliated with law enforcement, as well as statements made by children or others who may be limited in their ability to grasp the notion of potential future prosecution. The article discusses the importance of the opinion’s deviation from the language used in previous decisions—a distinction that promises to fuel the ongoing debate about the future of Confrontation Clause jurisprudence.