High court weighs limits on child abuse evidence

WASHINGTON (AP) – The Supreme Court is considering limits on the type of evidence that can be used in child abuse cases, a move that could hamstring prosecutors in domestic violence trials.

The justices on Monday debated whether out-of-court statements that children make to their teachers about abuse can be used as evidence if a child is unable to testify in person.

The case involves Darius Clark, a Cleveland man convicted of abusing his girlfriend’s three-year-old son. Clark says allowing the trial court to consider statements the boy made to teachers denied him the constitutional right to confront his accuser.

The Supreme Court has previously said that statements about abuse that children make to law enforcement officials are not admissible on their own because they were gathered as evidence and, if used, would amount to hearsay.

During a one-hour argument, several justices seemed concerned about the role played by teachers and others who are not law enforcement officials, but have a legal duty to report allegations of abuse to authorities.

Chief Justice John Roberts said questions the teacher asked the boy about who caused the injuries “seem to be designed to compile a case.”

Justice Sonia Sotomayor said the question is whether the statement was intended to substitute for testimony later on.

“So whether it’s given to a private individual or a police officer is irrelevant,” Sotomayor said.

Ohio officials and children’s advocacy groups say the primary purpose of having teachers disclose possible abuse is to protect children from immediate harm and remove them from danger, not to compile evidence for a criminal prosecution.

Matthew Meyer, an assistant prosecuting attorney representing Ohio, said the 6th Amendment right to confront accusers applies only when government agents investigate for purposes of a criminal prosecution. If there’s no direction by police, he said it’s simply a conversation between a teacher and student.

“These are just the basic questions a teacher would ask when a student comes to school with a bruise on their face,” Meyer said.

Clark’s attorney, Jeffrey Fisher, said his client was not asking for a ban on use of children’s statements about abuse to teachers. But he insisted a defendant must be allowed to confront the accuser.

“How can there be a question of cross-examining a 3-year-old?” Justice Ruth Bader Ginsburg asked.

Fisher said the child could be interviewed in another setting, possibly by an expert.

“If by interviewing the child outside the courtroom in a more therapeutic setting is more likely to be able to enable the child to tell his story and to answer questions, then that’s what confrontation is all about,” Fisher said.

The case began in March 2010 when preschool teachers at a Head Start program questioned the boy about bruises and welts they saw around his left eye when Clark dropped him off. Asked who caused the injuries, the boy said “Dee,” referring to Clark.

Clark was later indicted, and at trial, the court allowed the teachers to discuss statements the boy made identifying Clark. But the boy was deemed “incompetent” to testify. Clark was convicted of felonious assault and child endangering.

A state appeals court overturned Clark’s conviction and the Ohio Supreme Court affirmed by 4-3 vote, finding that teachers are in the same position as law enforcement officials when they question children if they are legally bound to report possible cases of abuse.

Forty-two states filed a brief supporting Ohio. They argue that excluding from evidence the statements children make to teachers, counselors and others who must report abuse will only protect abusers and impair the ability of states to protect children.

The National Association of Criminal Defense Lawyers says children are susceptible to suggestion and unreliable testimony.