In Crawford v. Washington, 541 U.S. 36, 53-54 (2004), the U.S. Supreme Court held the federal Confrontation Clause bars “admission of testimonial statements of a witness who did not appear at trial,” unless that witness was unavailable to testify and the defendant had a prior opportunity to cross-examine him or her. In a post-Crawford string of Confrontation Clause decisions the Supreme Court as well as the Court of Appeals have labored to flesh out what it means for a statement to be “testimonial.” Recently, the Supreme Court and the Court of Appeals handed down decisions in Ohio v. Clark, 135 S.Ct. 2173 (2015) and the cases People v. Garcia and People v. DeJesus (one decision), 25 N.Y.3d 77 (2015), respectively, which further address this issue.

Both decisions merit attention, the former as it is a major step forward by the Supreme Court in clarifying the meaning of “testimonial,” and the latter as it shows the strong commitment by the Court of Appeals to policing prosecutorial efforts to evade the Crawford rule.

'Ohio v. Clark'

Clark featured, as depicted by the Supreme Court, an unusually unsympathetic defendant, Darius Clark, who was convicted of physically abusing his girlfriend's two young children, “L.P.,” a 3-year old boy and “A.T.,” an 18-month old girl. L.P. attended a preschool where a teacher observed a suspicious bruise on his face. She asked him how he got the bruise, and he replied “Dee,” which was Darius Clark's nickname. Upon further inquiry additional injuries were found on his chest. The teacher called a child abuse hotline to alert authorities about the suspected abuse, as required by Ohio's mandatory reporting law.