The appeal here comes from a conviction, after a jury trial, of predatory sexual assault against a child and course of sexual conduct against a child in the first degree. The defendant here was infected with a certain sexually transmitted disease (STD) that was proved at trial albeit without testimony. The issue becomes whether there is a confrontation clause issue.
Recently, the Supreme Court held that no Confrontation Clause violation occurred when the statements of a three year old child, who did not testify, were admitted into evidence against a defendant. The Court held that these statements by a child to a teacher were made to address an ongoing emergency: child abuse. Since Crawford v. Washington, Courts have struggled with what is barred by the Sixth Amendment’s Confrontation Clause. Criminal defense attorneys know that the issue is daunting and the Crawford decision has led to much confusion.
The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” Like any good rule, however, there are exceptions. In Ohio v. Clark, 135 S.CT. ___ (June 18, 2015), the Supreme Court of the United States reversed: holding that the introduction at trial of statements made by a three-year-old boy to his teachers identifying his mother’s boyfriend as the source of his injuries did not violate the Confrontation Clause, when the child did not testify at trial, because the statements were not made with the primary purpose of creating evidence for prosecution.
Later decisions would clarify what was and what was not testimonial. The Supreme Court made clear that “if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” In Bullcoming, a Driving While Intoxicated (“DWI”) prosecution, the Court evaluated whether a blood analysis was testimonial even though it was made in the regular course of DWI prosecutions. Although this occurs quite regularly in criminal trials, the Supreme Court held that “[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because— having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial—they are not testimonial.” more