On 2 October, the Supreme Court granted certiorari in a case that might have important ramifications for military justice – Ohio v. Clark. And it is a source for potential motions going forward, regardless of CAAF’s recent Squire opinion. Here is the question presented.
Whether an individual’s obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child’s out-of-court statements to a teacher in response to the teacher’s concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.
So you can see where I am going.
- All military members, and certainly those in the Department of the Navy by specific regulation have an obligation to report known offenses.
- There is a family advocacy program that routinely receives and investigates reports of domestic violence, including child abuse and spouse abuse.
- Medical providers undergo credentials reviews and adverse actions, which can sometimes parallel criminal investigations.
Clark presents a split in state supreme court practice. As a result of Clark, “the Ohio Supreme Court held both that this mandatory-reporting duty turned daycare teachers into “agents of the state for law enforcement purposes” and that a child’s out-of-court statements to the teachers qualified as “testimonial” Under the Confrontation Clause.” Pet. at i.
The state advanced four reasons for a grant: (1) prior Supreme Court cases have yet to address statements to non law enforcement personnel, (2) there is a split with other states (see pet. beginning at 18 for discussion of the other state resolutions0, (3) the issues is a reoccurring one involving child safety, and (4) this is a good case to decide.
The state specifically mentions United States v. Squire, 72 M.J. 285 (C.A.A.F. 2013), as being contrary to the Ohio Supreme Court holding. See Zach’s analysis of Squire here. Appellee makes the point that five of the eight cited cases by the state involve medical providers in the course of a medical examination “addressing immediate health needs.” As Appellee points out, that’s Squire.
Should the Supreme Court side with Appellee, Squire is likely to remain good law for military justice practitioners, because there is a significant distinction between a child or other person presenting to a medical provider for medical care and a teacher or FAP person seeking information. The really interesting point will be how leaders may be affected.