I previously wrote (here) about the U.S. Supreme Court’s recent cert grant in Ohio v. Clark, a case in which the Court will decide whether a three-year-old child’s statements to his preschool teachers are testimonial. Hiding in plain sight in that case is an issue as interesting as the Crawford question that the Court will decide. In Clark, the Ohio Supreme Court held that the child’s statements to his teachers identifying the defendant as the perpetrator were testimonial. It further held that the trial court violated the defendant’s confrontation clause rights when it admitted the child’s out of court statements to his teachers at trial, after finding the child—L.P. —incompetent to testify. L.P. was found to be incompetent six months after uttering the statements at issue. Because Clark’s focus is on the confrontation issue, little attention is given to the hearsay exception that allowed for admission of L.P.’s statements under the evidence rules. In child abuse cases, the most commonly applicable hearsay exceptions are the excited utterance exception, the statement for purposes of medical examination and treatment exception, and the residual exceptions. It’s not clear from the state court opinion but it doesn’t appear that a foundation was laid for admission under the excited utterance or medical examination and treatment exceptions. That leaves the residual exceptions and gets us to the issue hiding in plain sight: If L.P. was incompetent to testify, should his statements have been admitted under the residual exceptions? In North Carolina, before admitting proffered hearsay evidence pursuant [...]
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