135 S. Ct. 2173 (2015)
In March 2010, Darius Clark sent his girlfriend T.T. hundreds of miles away to Washington, D.C., to engage in prostitution while he cared for her two young children in Cleveland, Ohio: three-year-old L.P. and eighteen-month-old A.T.1
The next day Clark took L.P. to preschool.2 Teacher Ramona Whitley noticed that L.P.'s left eye appeared bloodshot.3 When they moved into the brighter lights of a classroom, Whitley noticed red marks like whips of some sort on L.P.'s face.4 After Whitley and lead teacher Debra Jones questioned him, L.P. identified his abuser as Dee and indicated that Dee was big. Jones's supervisor lifted L.P.'s shirt and found additional injuries; Whitley then called a child-abuse hotline.5
When Clark arrived at the school he denied responsibility and left with L.P.6 The following day a social worker located the children at Clark's mother's house and took them to a hospital, where a physician documented extensive injuries on both children, including black eyes, belt marks, bruises, a swollen hand, a large burn, and two pigtails ripped out at the roots.7
A grand jury indicted Clark on five counts of felonious assault, two counts of endangering children, and two counts of domestic violence.8 At trial the State introduced L.P.'s statements to his teachers, but L.P. did not testify because the trial court found him incompetent under Ohio Rule of Evidence 601(A).9 The court admitted the statements under Ohio Rule of Evidence 807 after finding sufficient guarantees of trustworthiness and denied Clark's motion to exclude them on Confrontation Clause grounds.10 The jury convicted Clark on all counts except one assault count related to A.T. and sentenced him to twenty-eight years' imprisonment.11
A state appellate court reversed the conviction on Confrontation Clause grounds.12 In a four-to-three decision the Supreme Court of Ohio affirmed, holding the statements testimonial.13 The United States Supreme Court granted certiorari.14
Whether L.P.'s out-of-court statements to his preschool teachers were testimonial under the Confrontation Clause?15
Under Crawford v. Washington and its progeny, the Confrontation Clause prohibits introduction of testimonial statements by a nontestifying witness unless the witness is unavailable and the defendant had a prior opportunity for cross-examination.16 A statement is testimonial when the primary purpose of the conversation, viewed objectively and considering all relevant circumstances, was to create an out-of-court substitute for trial testimony.17 The existence of an ongoing emergency is one factor but not the touchstone; informality of the situation and the relationship between declarant and questioner are also relevant.
No. L.P.'s statements to his preschool teachers were not testimonial.18 The statements occurred in the context of an ongoing emergency involving suspected child abuse after teachers noticed bloodshot eyes and whip-like marks on the three-year-old.19 Teachers questioned L.P. immediately in the informal preschool lunchroom and classroom setting to identify the abuser and protect the child, without informing him that answers would be used for prosecution.20 L.P. never indicated any intent to create evidence for police or prosecutors, and his young age made it extremely unlikely he understood the statements as a substitute for trial testimony.21
L.P.'s statements were not testimonial, and their admission at Clark's trial did not violate the Confrontation Clause.22
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Joined by Justice Ginsburg
Justice Scalia concurred in the judgment.23 He agreed that L.P.'s age and the informal circumstances showed the statements were not testimonial even under the usual test for police interrogation.24 Scalia protested the majority's dicta that the primary-purpose test is necessary but not always sufficient.25
He argued this distorts the categorical right to confrontation and improperly shifts the burden to defendants to prove historical exclusion practices.26 Scalia emphasized that the Confrontation Clause categorically entitles a defendant to confront the witnesses against him, and the primary-purpose test merely sorts out who is acting as a witness.27
Justice Thomas concurred in the judgment on the ground that L.P.'s statements lacked sufficient indicia of solemnity to qualify as testimonial.28 He would not apply the primary-purpose test to statements made to private persons. Instead he would ask whether the statements were contained in formalized materials or obtained through formalized dialogue, which these preschool-teacher questions were not.29
Thomas stressed that statements to private persons rarely resemble the historical abuses the Clause was designed to address.30
Whether statements made to individuals other than law enforcement officers can implicate the Confrontation Clause?31
Yes. The Court declined to adopt a categorical rule excluding statements to non-law-enforcement officers from Sixth Amendment scrutiny.34 At the same time, the identity of the questioner remains highly relevant.35 Statements to individuals not principally charged with uncovering and prosecuting crime are far less likely to reflect a primary purpose of creating evidence for trial.36
Statements to individuals other than law enforcement officers can implicate the Confrontation Clause, though L.P.'s statements to his teachers did not.37
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Justice Thomas concurred in the judgment but would have resolved the question by applying his solemnity test rather than the primary-purpose test.38 He noted that statements to private persons rarely resemble the historical abuses the Clause was designed to address.39 Thomas would assess whether the statements bear sufficient indicia of solemnity to qualify as testimonial, such as being contained in formalized materials or obtained through formalized dialogue.40
He emphasized that the primary purpose test is an exercise in fiction disconnected from history for statements made to private persons.41 Thomas stressed that the test is designed to identify historical abuses under the English bail and committal statutes.42
Whether Ohio's mandatory reporting law transforms preschool teachers into agents of law enforcement for Confrontation Clause purposes?43
Mandatory reporting obligations alone do not convert a conversation between a concerned teacher and student into a law-enforcement mission aimed primarily at gathering evidence for prosecution.44
No. The teachers' immediate objective was to protect L.P. from harm and determine whether it was safe to release him at the end of the day.45 They would have asked the same questions regardless of any statutory duty to report.46 The natural tendency of their questions to result in prosecution does not change the primary purpose of the conversation.47
Ohio's mandatory reporting law does not transform preschool teachers into agents of law enforcement for Confrontation Clause purposes.48