(Slip Opinion)
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` OCTOBER TERM, 2014
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`Syllabus
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`1
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` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
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` being done in connection with this case, at the time the opinion is issued.
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` The syllabus constitutes no part of the opinion of the Court but has been
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` prepared by the Reporter of Decisions for the convenience of the reader.
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` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
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`SUPREME COURT OF THE UNITED STATES
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` Syllabus
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` OHIO v. CLARK
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`CERTIORARI TO THE SUPREME COURT OF OHIO
` No. 13–1352. Argued March 2, 2015—Decided June 18, 2015
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`Respondent Darius Clark sent his girlfriend away to engage in prosti-
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`tution while he cared for her 3-year-old son L. P. and 18-month-old
`daughter A. T. When L. P.’s preschool teachers noticed marks on his
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`body, he identified Clark as his abuser. Clark was subsequently tried
`on multiple counts related to the abuse of both children. At trial, the
`State introduced L. P.’s statements to his teachers as evidence of
`Clark’s guilt, but L. P. did not testify. The trial court denied Clark’s
`motion to exclude the statements under the Sixth Amendment’s Con-
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`frontation Clause. A jury convicted Clark on all but one count. The
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`state appellate court reversed the conviction on Confrontation Clause
`grounds, and the Supreme Court of Ohio affirmed.
`Held: The introduction of L. P.’s statements at trial did not violate the
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`Confrontation Clause. Pp. 4–12.
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`(a) This Court’s decision in Crawford v. Washington, 541 U. S. 36,
`54, held that the Confrontation Clause generally prohibits the intro-
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`duction of “testimonial” statements by a nontestifying witness, unless
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`the witness is “unavailable to testify, and the defendant had had a
`prior opportunity for cross-examination.” A statement qualifies as
`testimonial if the “primary purpose” of the conversation was to
`“creat[e] an out-of-court substitute for trial testimony.” Michigan v.
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`Bryant, 562 U. S. 344, 369. In making that “primary purpose” de-
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`termination, courts must consider “all of the relevant circumstances.”
`Ibid. “Where no such primary purpose exists, the admissibility of a
`statement is the concern of state and federal rules of evidence, not
`the Confrontation Clause.” Id., at 359. But that does not mean that
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`the Confrontation Clause bars every statement that satisfies the
`“primary purpose” test. The Court has recognized that the Confron-
`tation Clause does not prohibit the introduction of out-of-court
`statements that would have been admissible in a criminal case at the
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`OHIO v. CLARK
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`Syllabus
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` time of the founding. See Giles v. California, 554 U. S. 353, 358–359;
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` Crawford, 541 U. S., at 56, n. 6, 62. Thus, the primary purpose test
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`is a necessary, but not always sufficient, condition for the exclusion of
`out-of-court statements under the Confrontation Clause. Pp. 4–7.
`(b) Considering all the relevant circumstances, L. P.’s statements
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`were not testimonial. L. P.’s statements were not made with the
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`primary purpose of creating evidence for Clark’s prosecution. They
`occurred in the context of an ongoing emergency involving suspected
`child abuse. L. P.’s teachers asked questions aimed at identifying
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`and ending a threat. They did not inform the child that his answers
`would be used to arrest or punish his abuser. L. P. never hinted that
`he intended his statements to be used by the police or prosecutors.
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`And the conversation was informal and spontaneous. L. P.’s age fur-
`ther confirms that the statements in question were not testimonial
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`because statements by very young children will rarely, if ever, impli-
`cate the Confrontation Clause. As a historical matter, moreover,
`there is strong evidence that statements made in circumstances like
`these were regularly admitted at common law. Finally, although
`statements to individuals other than law enforcement officers are not
`categorically outside the Sixth Amendment’s reach, the fact that L. P.
`was speaking to his teachers is highly relevant. Statements to indi-
`viduals who are not principally charged with uncovering and prose-
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`cuting criminal behavior are significantly less likely to be testimonial
`than those given to law enforcement officers. Pp. 7–10.
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`(c) Clark’s arguments to the contrary are unpersuasive. Mandato-
`ry reporting obligations do not convert a conversation between a con-
`cerned teacher and her student into a law enforcement mission aimed
`at gathering evidence for prosecution. It is irrelevant that the teach-
`ers’ questions and their duty to report the matter had the natural
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`tendency to result in Clark’s prosecution. And this Court’s Confron-
`tation Clause decisions do not determine whether a statement is tes-
`timonial by examining whether a jury would view the statement as
`the equivalent of in-court testimony. Instead, the test is whether a
`statement was given with the “primary purpose of creating an out-of-
`court substitute for trial testimony.” Bryant, supra, at 358. Here,
`the answer is clear: L. P.’s statements to his teachers were not testi-
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`monial. Pp. 11–12.
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`137 Ohio St. 3d 346, 2013–Ohio–4731, 999 N. E. 2d 592, reversed and
`remanded.
`ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
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`and KENNEDY, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J.,
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`filed an opinion concurring in the judgment, in which GINSBURG, J.,
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`joined. THOMAS, J., filed an opinion concurring in the judgment.
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` Cite as: 576 U. S. ____ (2015)
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`Opinion of the Court
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`1
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` NOTICE: This opinion is subject to formal revision before publication in the
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` preliminary print of the United States Reports. Readers are requested to
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` notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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` ington, D. C. 20543, of any typographical or other formal errors, in order
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` that corrections may be made before the preliminary print goes to press.
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`SUPREME COURT OF THE UNITED STATES
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`_________________
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` No. 13–1352
`_________________
` OHIO, PETITIONER v. DARIUS CLARK
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`
`ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO
`[June 18, 2015]
`JUSTICE ALITO delivered the opinion of the Court.
`Darius Clark sent his girlfriend hundreds of miles away
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`to engage in prostitution and agreed to care for her two
`young children while she was out of town. A day later,
`teachers discovered red marks on her 3-year-old son, and
`the boy identified Clark as his abuser. The question in
`this case is whether the Sixth Amendment’s Confrontation
`Clause prohibited prosecutors from introducing those
`statements when the child was not available to be cross-
`examined. Because neither the child nor his teachers had
`the primary purpose of assisting in Clark’s prosecution,
`the child’s statements do not implicate the Confrontation
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`Clause and therefore were admissible at trial.
`I
`Darius Clark, who went by the nickname “Dee,” lived in
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`Cleveland, Ohio, with his girlfriend, T. T., and her two
`children: L. P., a 3-year-old boy, and A. T., an 18-month-
`old girl.1 Clark was also T. T.’s pimp, and he would regu-
`larly send her on trips to Washington, D. C., to work as a
`prostitute. In March 2010, T. T. went on one such trip,
`
`——————
`1Like the Ohio courts, we identify Clark’s victims and their mother
`by their initials.
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`OHIO v. CLARK
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`Opinion of the Court
`and she left the children in Clark’s care.
`
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`The next day, Clark took L. P. to preschool. In the
`lunchroom, one of L. P.’s teachers, Ramona Whitley, ob-
`served that L. P.’s left eye appeared bloodshot. She asked
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`him “‘[w]hat happened,’” and he initially said nothing.
`137 Ohio St. 3d 346, 347, 2013–Ohio–4731, 999 N. E. 2d
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`592, 594. Eventually, however, he told the teacher that he
`“‘fell.’” Ibid. When they moved into the brighter lights of
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`a classroom, Whitley noticed “‘[r]ed marks, like whips of
`some sort,’” on L. P.’s face. Ibid. She notified the lead
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`teacher, Debra Jones, who asked L. P., “‘Who did this?
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`What happened to you?’” Id., at 348, 999 N. E. 2d, at 595.
`According to Jones, L. P. “‘seemed kind of bewildered’”
`and “‘said something like, Dee, Dee.’” Ibid. Jones asked
`
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`L. P. whether Dee is “big or little,” to which L. P. responded
`that “Dee is big.” App. 60, 64. Jones then brought L. P.
`to her supervisor, who lifted the boy’s shirt, revealing
`more injuries. Whitley called a child abuse hotline to alert
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`authorities about the suspected abuse.
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`When Clark later arrived at the school, he denied re-
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`sponsibility for the injuries and quickly left with L. P. The
`next day, a social worker found the children at Clark’s
`mother’s house and took them to a hospital, where a phy-
`sician discovered additional injuries suggesting child
`abuse. L. P. had a black eye, belt marks on his back and
`stomach, and bruises all over his body. A. T. had two
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`black eyes, a swollen hand, and a large burn on her cheek,
`and two pigtails had been ripped out at the roots of her
`hair.
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`A grand jury indicted Clark on five counts of felonious
`assault (four related to A. T. and one related to L. P.), two
`counts of endangering children (one for each child), and
`two counts of domestic violence (one for each child). At
`trial, the State introduced L. P.’s statements to his teach-
`ers as evidence of Clark’s guilt, but L. P. did not testify.
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`Under Ohio law, children younger than 10 years old are
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`Opinion of the Court
`incompetent to testify if they “appear incapable of receiv-
`ing just impressions of the facts and transactions respect-
`
`ing which they are examined, or of relating them truly.”
`Ohio Rule Evid. 601(A) (Lexis 2010). After conducting a
`hearing, the trial court concluded that L. P. was not com-
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`petent to testify. But under Ohio Rule of Evidence 807,
`which allows the admission of reliable hearsay by child
`abuse victims, the court ruled that L. P.’s statements to
`his teachers bore sufficient guarantees of trustworthiness
`to be admitted as evidence.
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`Clark moved to exclude testimony about L. P.’s out-of-
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`court statements under the Confrontation Clause. The
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`trial court denied the motion, ruling that L. P.’s responses
`were not testimonial statements covered by the Sixth
`Amendment. The jury found Clark guilty on all counts
`except for one assault count related to A. T., and it sen-
`tenced him to 28 years’ imprisonment. Clark appealed his
`conviction, and a state appellate court reversed on the
`ground that the introduction of L. P.’s out-of-court state-
`ments violated the Confrontation Clause.
`
`In a 4-to-3 decision, the Supreme Court of Ohio af-
`firmed.
`It held that, under this Court’s Confrontation
`Clause decisions, L. P.’s statements qualified as testimo-
`nial because the primary purpose of the teachers’ ques-
`tioning “was not to deal with an existing emergency but
`rather to gather evidence potentially relevant to a subse-
`quent criminal prosecution.” 137 Ohio St. 3d, at 350, 999
`N. E. 2d, at 597. The court noted that Ohio has a “manda-
`tory reporting” law that requires certain professionals,
`including preschool teachers, to report suspected child
`abuse to government authorities. See id., at 349–350, 999
`N. E. 2d, at 596–597. In the court’s view, the teachers
`acted as agents of the State under the mandatory report-
`ing law and “sought facts concerning past criminal activity
`to identify the person responsible, eliciting statements
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`that ‘are functionally identical to live, in-court testimony,
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`OHIO v. CLARK
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`Opinion of the Court
`doing precisely what a witness does on direct examina-
`tion.’” Id., at 355, 999 N. E. 2d, at 600 (quoting Melendez-
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`Diaz v. Massachusetts, 557 U. S. 305, 310–311 (2009);
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`some internal quotation marks omitted).
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`We granted certiorari, 573 U. S. ___ (2014), and we now
`reverse.
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`II
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`A
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`The Sixth Amendment’s Confrontation Clause, which is
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`binding on the States through the Fourteenth Amend-
`ment, provides: “In all criminal prosecutions, the accused
`shall enjoy the right . . . to be confronted with the wit-
`nesses against him.” In Ohio v. Roberts, 448 U. S. 56, 66
`(1980), we interpreted the Clause to permit the admission
`of out-of-court statements by an unavailable witness, so
`long as the statements bore “adequate ‘indicia of reliabil-
`ity.’” Such indicia are present, we held, if “the evidence
`falls within a firmly rooted hearsay exception” or bears
`“particularized guarantees of trustworthiness.” Ibid.
`In Crawford v. Washington, 541 U. S. 36 (2004), we
`adopted a different approach. We explained that “wit-
`nesses,” under the Confrontation Clause, are those “who
`bear testimony,” and we defined “testimony” as “a solemn
`declaration or affirmation made for the purpose of estab-
`lishing or proving some fact.” Id., at 51 (internal quota-
`tion marks and alteration omitted). The Sixth Amend-
`ment, we concluded, prohibits the
`introduction of
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`testimonial statements by a nontestifying witness, unless
`the witness is “unavailable to testify, and the defendant
`had had a prior opportunity for cross-examination.” Id., at
`54. Applying that definition to the facts in Crawford, we
`held that statements by a witness during police question-
`ing at the station house were testimonial and thus could
`not be admitted. But our decision in Crawford did not
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`offer an exhaustive definition of “testimonial” statements.
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`Opinion of the Court
`Instead, Crawford stated that the label “applies at a min-
`imum to prior testimony at a preliminary hearing, before a
`grand jury, or at a former trial; and to police interroga-
`tions.” Id., at 68.
`
`Our more recent cases have labored to flesh out what it
`means for a statement to be “testimonial.” In Davis v.
`Washington and Hammon v. Indiana, 547 U. S. 813
`(2006), which we decided together, we dealt with state-
`ments given to law enforcement officers by the victims of
`domestic abuse. The victim in Davis made statements to a
`911 emergency operator during and shortly after her
`boyfriend’s violent attack. In Hammon, the victim, after
`being isolated from her abusive husband, made state-
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`ments to police that were memorialized in a “‘battery
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`affidavit.’” Id., at 820.
`
`We held that the statements in Hammon were testimo-
`nial, while the statements in Davis were not. Announcing
`what has come to be known as the “primary purpose” test,
`we explained: “Statements are nontestimonial when made
`in the course of police interrogation under circumstances
`objectively indicating that the primary purpose of the
`interrogation is to enable police assistance to meet an
`ongoing emergency. They are testimonial when the cir-
`cumstances objectively indicate that there is no such
`ongoing emergency, and that the primary purpose of the
`interrogation is to establish or prove past events poten-
`tially relevant to later criminal prosecution.” Id., at 822.
`Because the cases involved statements to law enforcement
`officers, we reserved the question whether similar state-
`ments to individuals other than law enforcement officers
`would raise similar issues under the Confrontation
`Clause. See id., at 823, n. 2.
`In Michigan v. Bryant, 562 U. S. 344 (2011), we further
`expounded on the primary purpose test. The inquiry, we
`emphasized, must consider “all of the relevant circum-
`stances.” Id., at 369. And we reiterated our view in Davis
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`OHIO v. CLARK
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`Opinion of the Court
`that, when “the primary purpose of an interrogation is to
`respond to an ‘ongoing emergency,’ its purpose is not to
`create a record for trial and thus is not within the scope of
`the [Confrontation] Clause.” 562 U. S., at 358. At the
`same time, we noted that “there may be other circum-
`stances, aside from ongoing emergencies, when a state-
`ment is not procured with a primary purpose of creating
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`an out-of-court substitute for trial testimony.”
`Ibid.
`“[T]he existence vel non of an ongoing emergency is not
`the touchstone of the testimonial inquiry.” Id., at 374.
`Instead, “whether an ongoing emergency exists is simply
`one factor . . . that informs the ultimate inquiry regarding
`the ‘primary purpose’ of an interrogation.” Id., at 366.
`
`One additional factor is “the informality of the situation
`and the interrogation.” Id., at 377. A “formal station-
`house interrogation,” like the questioning in Crawford, is
`more likely to provoke testimonial statements, while less
`formal questioning is less likely to reflect a primary pur-
`pose aimed at obtaining testimonial evidence against the
`accused. Id., at 366, 377. And in determining whether a
`statement is testimonial, “standard rules of hearsay,
`designed to identify some statements as reliable, will be
`relevant.” Id., at 358–359. In the end, the question is
`whether, in light of all the circumstances, viewed objec-
`tively, the “primary purpose” of the conversation was to
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`“creat[e] an out-of-court substitute for trial testimony.”
`Id., at 358. Applying these principles in Bryant, we held
`that the statements made by a dying victim about his
`assailant were not testimonial because the circumstances
`objectively indicated that the conversation was primarily
`
`aimed at quelling an ongoing emergency, not establishing
`evidence for the prosecution. Because the relevant state-
`ments were made to law enforcement officers, we again
`declined to decide whether the same analysis applies to
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`statements made to individuals other than the police. See
`id., at 357, n. 3.
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`Opinion of the Court
`Thus, under our precedents, a statement cannot fall
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`within the Confrontation Clause unless its primary pur-
`pose was testimonial. “Where no such primary purpose
`exists, the admissibility of a statement is the concern of
`state and federal rules of evidence, not the Confrontation
`Clause.” Id., at 359. But that does not mean that the
`Confrontation Clause bars every statement that satisfies
`the “primary purpose” test. We have recognized that the
`Confrontation Clause does not prohibit the introduction of
`out-of-court statements that would have been admissible
`in a criminal case at the time of the founding. See Giles v.
`California, 554 U. S. 353, 358–359 (2008); Crawford, 541
`U. S., at 56, n. 6, 62. Thus, the primary purpose test is a
`
`necessary, but not always sufficient, condition for the
`exclusion of out-of-court statements under the Confronta-
`tion Clause.
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`7
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`B
`In this case, we consider statements made to preschool
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`teachers, not the police. We are therefore presented with
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`the question we have repeatedly reserved: whether state-
`ments to persons other than law enforcement officers are
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`subject to the Confrontation Clause. Because at least
`some statements to individuals who are not law enforce-
`ment officers could conceivably raise confrontation con-
`cerns, we decline to adopt a categorical rule excluding
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`them from the Sixth Amendment’s reach. Nevertheless,
`such statements are much less likely to be testimonial
`than statements to law enforcement officers. And consid-
`ering all the relevant circumstances here, L. P.’s state-
`ments clearly were not made with the primary purpose of
`creating evidence for Clark’s prosecution. Thus, their
`introduction at trial did not violate the Confrontation
`
`Clause.
`L. P.’s statements occurred in the context of an ongoing
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`emergency involving suspected child abuse. When L. P.’s
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`Opinion of the Court
`teachers noticed his injuries, they rightly became worried
`that the 3-year-old was the victim of serious violence.
`
`Because the teachers needed to know whether it was safe
`to release L. P. to his guardian at the end of the day, they
`needed to determine who might be abusing the child.2
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`Thus, the immediate concern was to protect a vulnerable
`child who needed help. Our holding in Bryant is instruc-
`tive. As in Bryant, the emergency in this case was ongo-
`
`ing, and the circumstances were not entirely clear. L. P.’s
`
`teachers were not sure who had abused him or how best to
`secure his safety. Nor were they sure whether any other
`children might be at risk. As a result, their questions and
`L. P.’s answers were primarily aimed at identifying and
`ending the threat. Though not as harried, the conversa-
`tion here was also similar to the 911 call in Davis. The
`teachers’ questions were meant to identify the abuser in
`order to protect the victim from future attacks. Whether
`the teachers thought that this would be done by appre-
`hending the abuser or by some other means is irrelevant.
`
`And the circumstances in this case were unlike the inter-
`rogation in Hammon, where the police knew the identity
`of the assailant and questioned the victim after shielding
`her from potential harm.
`There is no indication that the primary purpose of the
`
`conversation was to gather evidence for Clark’s prosecu-
`tion. On the contrary, it is clear that the first objective
`was to protect L. P. At no point did the teachers inform
`L. P. that his answers would be used to arrest or punish
`his abuser. L. P. never hinted that he intended his state-
`ments to be used by the police or prosecutors. And the
`——————
`2In fact, the teachers and a social worker who had come to the school
`were reluctant to release L. P. into Clark’s care after the boy identified
`Clark as his abuser. But after a brief “stare-down” with the social
`worker, Clark bolted out the door with L. P., and social services were
`not able to locate the children until the next day. App. 92–102, 150–
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` 151.
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`Opinion of the Court
`conversation between L. P. and his teachers was informal
`and spontaneous. The teachers asked L. P. about his
`injuries immediately upon discovering them, in the infor-
`mal setting of a preschool lunchroom and classroom, and
`they did so precisely as any concerned citizen would talk
`to a child who might be the victim of abuse. This was
`nothing like the formalized station-house questioning in
`Crawford or the police interrogation and battery affidavit
`in Hammon.
`
`L. P.’s age fortifies our conclusion that the statements in
`question were not testimonial. Statements by very young
`children will rarely, if ever, implicate the Confrontation
`Clause. Few preschool students understand the details of
`our criminal justice system. Rather, “[r]esearch on chil-
`dren’s understanding of the legal system finds that” young
`children “have little understanding of prosecution.” Brief
`for American Professional Society on the Abuse of Chil-
`
`dren as Amicus Curiae 7, and n. 5 (collecting sources).
`
`And Clark does not dispute those findings. Thus, it is
`extremely unlikely that a 3-year-old child in L. P.’s posi-
`tion would intend his statements to be a substitute for
`trial testimony. On the contrary, a young child in these
`circumstances would simply want the abuse to end, would
`want to protect other victims, or would have no discernible
`
`purpose at all.
`
`As a historical matter, moreover, there is strong evi-
`dence that statements made in circumstances similar to
`those facing L. P. and his teachers were admissible at
`common law. See Lyon & LaMagna, The History of Chil-
`dren’s Hearsay: From Old Bailey to Post-Davis, 82 Ind.
`L. J. 1029, 1030 (2007); see also id., at 1041–1044 (exam-
`ining child rape cases from 1687 to 1788); J. Langbein,
`The Origins of Adversary Criminal Trial 239 (2003) (“The
`Old Bailey” court in 18th-century London “tolerated fla-
`grant hearsay in rape prosecutions involving a child victim
`who was not competent to testify because she was too
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`OHIO v. CLARK
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`Opinion of the Court
`young to appreciate the significance of her oath”). And
`
`when 18th-century courts excluded statements of this sort,
`see, e.g., King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202
`(K. B. 1779), they appeared to do so because the child
`should have been ruled competent to testify, not because
`
`the statements were otherwise inadmissible. See Lyon &
`LaMagna, supra, at 1053–1054. It is thus highly doubtful
`that statements like L. P.’s ever would have been under-
`stood to raise Confrontation Clause concerns. Neither
`Crawford nor any of the cases that it has produced has
`mounted evidence that the adoption of the Confrontation
`Clause was understood to require the exclusion of evidence
`that was regularly admitted in criminal cases at the time
`of the founding. Certainly, the statements in this case are
`nothing like the notorious use of ex parte examination in
`Sir Walter Raleigh’s trial for treason, which we have
`frequently identified as “the principal evil at which the
`Confrontation Clause was directed.” Crawford, 541 U. S.,
`at 50; see also Bryant, 562 U. S., at 358.
`
`Finally, although we decline to adopt a rule that state-
`ments to individuals who are not law enforcement officers
`are categorically outside the Sixth Amendment, the fact
`that L. P. was speaking to his teachers remains highly
`relevant. Courts must evaluate challenged statements in
`context, and part of that context is the questioner’s iden-
`tity. See id., at 369. Statements made to someone who is
`not principally charged with uncovering and prosecuting
`criminal behavior are significantly less likely to be testi-
`
`monial than statements given to law enforcement officers.
`See, e.g., Giles, 554 U. S., at 376. It is common sense that
`
`the relationship between a student and his teacher is very
`
`different from that between a citizen and the police. We
`do not ignore that reality. In light of these circumstances,
`the Sixth Amendment did not prohibit the State from
`introducing L.P.’s statements at trial.
`
`
`
`
`
`
`
`10
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`
`

`
`
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`
`
` 11
`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`Opinion of the Court
`
` III
`Clark’s efforts to avoid this conclusion are all off-base.
`
`He emphasizes Ohio’s mandatory reporting obligations, in
`an attempt to equate L. P.’s teachers with the police and
`their caring questions with official interrogations. But the
`comparison is inapt. The teachers’ pressing concern was
`to protect L. P. and remove him from harm’s way. Like all
`good teachers, they undoubtedly would have acted with
`the same purpose whether or not they had a state-law
`duty to report abuse. And mandatory reporting statutes
`alone cannot convert a conversation between a concerned
`teacher and her student into a law enforcement mission
`aimed primarily at gathering evidence for a prosecution.
`It is irrelevant that the teachers’ questions and their
`
`duty to report the matter had the natural tendency to
`
`result in Clark’s prosecution. The statements at issue in
`Davis and Bryant supported the defendants’ convictions,
`and the police always have an obligation to ask questions
`to resolve ongoing emergencies. Yet, we held in those
`cases that the Confrontation Clause did not prohibit in-
`troduction of the statements because they were not pri-
`marily intended to be testimonial. Thus, Clark is also
`
` wrong to suggest that admitting L. P.’s statements would
`be fundamentally unfair given that Ohio law does not
`allow incompetent children to testify. In any Confronta-
`tion Clause case, the individual who provided the out-of-
`court statement is not available as an in-court witness,
`but the testimony is admissible under an exception to the
`hearsay rules and is probative of the defendant’s guilt.
`The fact that the witness is unavailable because of a dif-
`ferent rule of evidence does not change our analysis.
`
`Finally, Clark asks us to shift our focus from the context
`of L. P.’s conversation with his teachers to the jury’s per-
`ception of those statements. Because, in his view, the
`“jury treated L. P.’s accusation as the functional equiva-
`lent of testimony,” Clark argues that we must prohibit its
`
`
`
`
`
`
`
`
`
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`
`
`
`

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`12
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`
`OHIO v. CLARK
`
`Opinion of the Court
` introduction. Brief for Respondent 42. Our Confrontation
`
`Clause decisions, however, do not determine whether a
`statement is testimonial by examining whether a jury
`would view the statement as the equivalent of in-court
`testimony. The logic of this argument, moreover, would
`lead to the conclusion that virtually all out-of-court state-
`ments offered by the prosecution are testimonial. The
`
`prosecution is unlikely to offer out-of-court statements
`unless they tend to support the defendant’s guilt, and all
`such statements could be viewed as a substitute for in-
`court testimony. We have never suggested, however, that
`
`the Confrontation Clause bars the introduction of all out-
`of-court statements that support the prosecution’s case.
`Instead, we ask whether a statement was given with the
`“primary purpose of creating an out-of-court substitute
`for trial testimony.” Bryant, supra, at 358. Here, the an-
`swer is clear: L. P.’s statements to his teachers were not
`testimonial.
`
`
`
`
`IV
`
`We reverse the judgment of the Supreme Court of Ohio
`and remand the case for further proceedings not incon-
`sistent with this opinion.
`
`
`It is so ordered.
`
`

`
`
`
`
`
` Cite as: 576 U. S. ____ (2015)
`
`SCALIA, J., concurring in judgment
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash­
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 13–1352
`_________________
` OHIO, PETITIONER v. DARIUS CLARK
`
`
`ON WRIT OF CERTIORARI TO THE SUPREME COURT OF OHIO
`[June 18, 2015]
` JUSTICE SCALIA, with whom JUSTICE GINSBURG joins,
`
`
`concurring in the judgment.
`I agree with the Court’s holding, and with its refusal to
`
`
`decide two questions quite unnecessary to that holding:
`what effect Ohio’s mandatory-reporting law has in trans­
`forming a private party into a state actor for Confronta­
`tion Clause purposes, and whether a more permissive
`Confrontation Clause test—one less likely to hold the
`statements testimonial—should apply to interrogations by
`private actors. The statements here would not be testi­
`monial under the usual test applicable to informal police
`interrogation.
`L. P.’s primary purpose here was certainly not to invoke
`
`the coercive machinery of the State against Clark. His age
`
`refutes the notion that he is capable of forming such a
`purpose. At common law, young children were generally
`considered incompetent to take oaths, and were therefore
`unavailable as witnesses unless the court determined the
`individual child to be competent. Lyon & LaManga, The
`History of Children’s Hearsay: From Old Bailey to Post-
`
`
`
`Davis, 82 Ind. L. J. 1029, 1030-1031 (2007). The incon­
`sistency of L. P.’s answers—making him incompetent to
`testify here—is hardly unusual for a child of his age. And
`
`
`
`
`
`
`
`
`

`
`2
`
`
`
`
`
`
`OHIO v. CLARK
`
`SCALIA, J., concurring in judgment
`
` the circumstances of L. P.’s statements objectively indicate
`that even if he could, as an abstract matter, form such a
`purpose, he did not. Nor did the teachers have the pri­
`mary purpose of establishing facts for later prosecution.
`Instead, they sought to ensure that they did not deliver an
`abused child back into imminent harm. Nor did the con­
`versation have the requisite solemnity necessary for tes­
`timonial statements. A 3-year-old was asked questions by
`his teachers at school. That is far from the surroundings
`adequate to impress upon a declarant the importance of
`what he is testifying to.
`That is all that is necessary to decide the case, and all
`
`that today’s judgment holds.
`
`I write separately, however, to protest the Court’s shov­
`
`eling of fresh dirt upon the Sixth Amendment right of
`confrontation so recently rescued from the grave in Craw-
`ford v. Washington, 541 U. S. 36 (2004). For several dec­
`
`ades before that case, we had been allowing hearsay
`statements to be admitted against a criminal defendant if
`they bore “‘indicia of reliability.’” Ohio v. Roberts, 448
`U. S. 56, 66 (1980). Prosecutors, past and present, love
`that flabby test. Crawford sought to bring our application
`of the Confrontation Claus