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National Crime Victim Law Institute

Ohio v. Clark, 135 S. Ct. 2173 (2015) & Elonis v. United States, 135 S. Ct. 2001 (2015).

September 04, 2015

Ohio v. Clark, 135 S. Ct. 2173 (2015).  Defendant was convicted after a jury trial of multiple counts arising from the abuse of two child-victims, a 3-year old and an 18-month old.  Defendant appealed the trial court’s decision to allow the state to introduce the 3-year old’s out-of-court statements to his preschool teachers—statements that identified defendant as the cause of his visible injuries—after the child-victim was deemed legally incompetent to testify under state law.  Defendant argued that the trial court violated the Confrontation Clause because the statements are “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004),and its progeny.  The intermediate appellate court agreed and reversed the conviction.  The Supreme Court of Ohio affirmed, concluding that the child-victim’s statements are testimonial because the primary purpose of the teachers’ questioning was to gather evidence for a subsequent criminal prosecution rather than to deal with an existing emergency.  The United States Supreme Court disagreed, holding that the introduction of the child-victim’s statements did not violate the Confrontation Clause.  In reaching this holding, the Court discussed its Confrontation Clause cases since Crawford, and explained that the relevant inquiry 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.’”  The Court stated that the existence of an ongoing emergency “is simply one factor … that informs the ultimate inquiry regarding the ‘primary purpose’”; another factor is the formality of the situation—the more formal “‘station-house interrogatory’” situations are more likely to reflect a primary purpose aimed at obtaining testimonial statements.  Citing Giles v. California, 554 U.S. 353 (2008), the Court observed that the Confrontation Clause does not bar all statements that meets the “primary purpose test”; such out-of-court statements may nevertheless be admissible if they would have been admissible in a criminal case at the time of the founding of this country.  Applying these standards, the Court concluded that the child-victim’s statements “clearly were not made with the primary purpose of creating evidence for [defendant’s] prosecution.”  Rather, they were made “in the context of an ongoing emergency involving suspected child abuse” because the primary objective of the questions and answers were to identify the abuser and protect the child-victim.  In reaching its conclusion, the Court observed that the conversation occurred in an informal and spontaneous fashion in a preschool lunchroom and classroom.  The Court reasoned that “[s]tatements by very young children will rarely, if ever, implicate the Confrontation Clause” because it is extremely unlikely that a child in this position “would intend his statements to be a substitute for trial testimony” in a criminal prosecution.  The Court noted that “there is strong evidence” that similar statements made by young children were generally admissible in criminal cases under common law at the time of the nation’s founding.  Although declining to adopt a rule that all statements made to non-law enforcement individuals fall outside the Sixth Amendment, the Court emphasized that “[c]ourts must evaluate challenged statements in their context,” and “[s]tatements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers.”  The Court rejected defendant’s argument that Ohio’s mandatory reporting law, which requires the teachers to report suspected child abuse, makes the teachers functionally equivalent to law enforcement agents.  The Court stated that mandatory reporting laws “alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission,” and “[i]t is irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in [defendant’s] prosecution.”  For these reasons, the Court reversed the judgment of the Supreme Court of Ohio and remanded the case for further proceedings in a manner consistent with this decision. 

Elonis v. United States, 135 S. Ct. 2001 (2015).  Defendant was convicted of violating 18 U.S.C. § 875(c), which makes it a crime to transmit in interstate commerce “any communication containing any threat … to injure the person of another,” after he posted threats against his wife, police officers, the FBI, and Kindergartners on Facebook.  The jury instructions required that they find that defendant intentionally made a statement that a reasonable person would regard as a threat.  On appeal, defendant argued the statute and/or the First Amendment also requires that the defendant intend to make a threat.  The United States Court of Appeals for the Eighth Circuit (along with eight other circuits) disagreed, holding that the only intent required is that the defendant intend to communicate words that the defendant understands.  The Supreme Court granted certiorari.  The Court first concluded that facially the statute did not contain a particular mental state requirement.  It continued that when interpreting a federal criminal statute that is silent on the required mental state, the Court will read into the statute the mens rea necessary to separate wrongful conduct from otherwise innocent conduct.  In this case “‘the crucial element separating legal innocence from wrongful conduct’ is the threatening nature of the communication.”  Therefore, the Court concluded that “[t]he mental state requirement must … apply to the fact that the communication contains a threat.”  Because defendant’s conviction was based solely on how his posts would be understood by a reasonable person without any requirement that defendant was aware of his wrongdoing, the statute was incorrectly applied.  However, the Court failed to determine what mental state should apply—specifically, whether a finding of recklessness would be adequate for liability under the statute.  The decision was reversed and the case remanded for further proceedings consistent with the opinion.  Justice Alito, concurring in part and dissenting in part, objected to the majority’s refusal to address whether recklessness would be sufficient to establish liability, stating that the decision “is certain to cause confusion and serious problems.”  He would have found that recklessness is enough to convict.  He rejected defendant’s argument that the threats should be considered protected art under the First Amendment because they were similar to the lyrics of famous rappers.  Giving examples of the threats defendant made, and noting that the threats terrified defendant’s ex-wife, Justice Alito stated: “Threats of violence and intimidation are among the most favored weapons of domestic abusers, and the rise of social media has only made those tactics more commonplace.  A fig leaf of artistic expression cannot convert such hurtful, valueless threats into protected speech.”  In dissent, Justice Thomas also looked unfavorably on the Court’s failure to adopt a standard to resolve the conflict among the circuits, and stated that he would have relied on historical legal principles to apply a general intent standard.  He noted that to do otherwise would result in an arbitrary distinction between threats and other forms of unprotected speech:  “Had [defendant] mailed obscene materials to his wife and a kindergarten class, he could have been prosecuted irrespective of whether he intended to offend those recipients or recklessly disregarded that possibility.  Yet when he threatened to kill his wife and a kindergarten class, his intent to terrify those recipients (or reckless disregard of that risk) suddenly becomes highly relevant.  That need not—and should not—be the case.”