We posted previously on some Sixth Circuit cases that will get attention from the Supreme Court this term. In addition to those, the Supreme Court granted cert last week in another case of interest from within the Circuit – the Ohio Supreme Court’s 4-3 decision in Ohio v. Clark, which held that a preschooler’s identification of his abuser was “testimonial”—and therefore inadmissible under the Confrontation Clause. The court held that the teacher’s statutory mandate to report suspected abuse rendered the teacher an “agent of law enforcement,” and therefore applied the more demanding “primary purpose” test (rather than the “objective witness” test that would have applied to a non-agent of law enforcement).

Mandatory reporter duties—which in most states apply to protect not only children, but also the elderly and/or disabled—vary widely across states. If the Supreme Court held that such a duty automatically makes one an agent of law enforcement, the term might cease to have meaning in the many states whose laws require members of the general public to report abuse. However, statutes are worded differently—not all contain the additional provision in the Ohio statute stating that “children services agencies shall investigate each report of known or suspected child abuse in cooperation with law enforcement,” which the Ohio Supreme Court cited as support for its decision. Thus, the Supreme Court could affirm the Ohio Supreme Court’s “agent of law enforcement” analysis, while narrowly limiting it based on the statutory language in a manner that sends a clear message to states about how they could revise their statutes to avoid similar outcomes.