Hi everybody and welcome to this weeks bonus content. We're actually almost completed with the course. We are now at week five out of six. We hope that you've been enjoying the lecture so far and all the bonus content. And from what we've been able to see on the discussion forums, you've really taken this course and made it your own, so we are very pleased with all of the feedback and comments that we've seen on the, the different postings. I thought this week that we could talk a little bit further about the exclusionary rule under the Fourth Amendment that Professor Omar mentioned. And also to talk about another exclusionary rule that is actually going to be decided upon by the Supreme Court when they hear an upcoming case. So first, you might recall that Professor Amar mentioned that the Fourth Amendment Exclusionary Rule is something that the war and court in the 1960s decided to implement. Essentially what that rule says is if there is an unreasonable search and seizure by the police of my effects. Or if they go into your home without some sort of reason to be there. And they recover something and want to use that in a trial against you. The court is going to exclude that type of evidence. Professor Amar actually has a few objections to using an exclusionary rule in that type of context and his basic argument is this. Professor Amar says that that type of rule where you're going to exclude evidence in the Fourth Amendment context is benefiting only someone who is guilty. His basic example is, if the government or a police officer knows that somebody's innocent, and just wants to hassle that person. Or maybe that person, or excuse me, maybe the police officer's discriminatory. Or maybe the police officer just wants to show off the government's power. But if that police officer knows the person that he is about to search, is innocent. An Exclusionary Rule is not going to deter that type of behavior. If the police officer searches somebody's house or searches somebody's person not expecting to find anything, then a rule excluding evidence that the police officer doesn't expect to find or the police officer doesn't find isn't going to change his behavior. So, that's Professor Amar's basic, the basic contours of his argument. Now, some of the postings have actually raised some good counter points, essentially saying, well, we have to have something that will deter police officers or the government from unreasonably searching our effects, our houses, our cars, things like that. And I think we'd all agree, Professor Amar would agree with that point, too. There are, there is a statute under federal law, section 1983, which does allow for some lawsuits against government actors. But I think Professor Amar's argument would be, if we're going to get rid of the Exclusionary Rule, which doesn't actually protect innocent people, we'd have to have some stronger mechanism in place to replace the Exclusionary Rule and do what this more in court, originally wanted to do. Which was to prevent these unreasonable searches. Now, this is actually an interesting issue, the Exclusionary Rule, because there are other types of exclusionary rules out there. One of them is actually found under the Sixth Amendment. If you've looked at the Constitution in the, the Bill of Rights, the Sixth Amendment is, is the one that really did, deals with the rights of a criminal defendant. When somebody is about to be put on trial for a crime. There are some rights that are guaranteed to that criminal defendant. And one of those is guaranteed by the Confrontation Clause, which reads that, the right to be confronted with the witnesses against him in all prosecutions, is something that the constitution is going to protect. The Confrontation Clause, really what it means, is if somebody is going to testify against you, you as the defendant have the right to confront that witness. And then to be able to cross examine that witness, to question how good is their memory, maybe what motives do they have to testify against you. So that you have an opportunity to speak and defend yourself. Now, the Exclusionary Rule is applicable here. Because if something falls under the Confrontation Clause, essentially what the court will say is, if you are not able to confront a witness, that witnesses' statements cannot be brought in the court and be used against you. There's some history to the Confrontation Clause, which might be useful before we actually talk about the case that the Supreme Court's going to discuss. Essentially, there's a set of federal rules of evidence, which govern all the types of evidence that can come in to evidence, that can be heard by the jury. And then, the same rules will say what kind of evidence should not be allowed before the jury. Some of these rules will be based on the reliability of the evidence, maybe the proprietary problems with where the evidence came from, authenticity, things like that. And one of them is called Hearsay. What the Federal Rules of Evidence say is you can't usually, this is a rule that has exceptions, but usually you can't bring into court a statement that somebody made outside of the court room and then give it to the jury and tell them to believe the content of that statement. The Hearsay rule governs statements that are made by an out of court speaker or document offered for the truth of the matter asserted. Essentially that would mean that the prosecutor might get up and say to a witness, What did Bob tell you. And then the witness will say, Well Bob told me that he saw the defendant commit the crime. That testimony would not be permissible, because it's offered from a witness who is talking about someone who is not in the courtroom, who did not speak in the courtroom. And the statement itself, that he saw the defendant commit the crime. That's being offered for the truth. It's something that the jury would listen to and say, well, we probably think that means the defendant committed the crime. Now before this case, before the Supreme Court is going to hear this case, there was a radical shift in the development of the Confrontation Clause. Because before 2004, essentially the Hearsay Rule and this constitutional right to confront your witnesses of these out of court statements, the Hearsay rule actually govern both of those areas. And the basic idea was if the statement was unreliable then it wouldn't come in, but if it was reliable then the statement probably would be allowed. But then in 2004, the Supreme Court in a case called Crawford versus Washington kind of reformulated the doctrine. You might actually recall that Professor Amar's talked about the value of precedent, and this is a good example of the Supreme Court re-fashioning the doctrine of prior cases and creating a new rule. And what the court said there is they're going to allow statements under the Confrontation Clause, even if the witness or the person that made the statement is not going to be in the courtroom and not going to be available for cross examination. That person's statements can be used in court as long as they are not testimonial. That is these are statements that were not made for the purpose of preserving testimony on the record or for the purposes of helping the police to start an investigation or further an investigation. So in 2004 the Supreme Court creates this dichotomy, this split between testimony, or statements that are testimonial. Things that will be used in the purposes of a police investigation or to preserve a record. To have some sort of accusation that a prosecutor could later refer to and statements that are not testimonial. A few examples that the Supreme Court has given of statements that are okay to be put into the record. Statements that aren't testimonial are things like statements during a 911 call where you're just describing events as they're going on, or statements during an emergency situation where you're trying to tell the 911 operator exactly what the problem is, or whether there's an immediate threat. Or even statements that you're making to a private citizen, a cursory statement that you make in a private conversation without any sort of intent that the police are going to further an investigation or start an investigation. So with that background in place, the Supreme Court has actually been working through what is testimonial, what is not testimonial, trying to create more case law to help shape the contours of this new rule it created in 2004. In a new case Ohio vs Clark is going to be heard this term. And there are two basic issues. One is whether a teacher in a preschool, or a, a childcare center, or a daycare, whether that person, if required by state law to report any sort of accusations of abuse to a police officer or to a state official, whether that person is actually working as an agent of the police. And then also whether a small child's accusation that maybe his or her father or mother has been abusing him, whether that kind of statement is considered testimonial. Whether that's the kind of statement that would require the child to be put on the witness stand, so the defendant could at some point cross-examine, or just question that child about the statements that he made. >> The problem here is that every single state in the United States has some sort of law that requires a teacher or maybe a daycare worker to report claims of abuse by a child. So, this is a case that depending on how the Supreme Court decides, could affect every single state, every single child care worker or teacher when it comes to abuse of small children. And one of the important arguments that is going to be made both by the government of Ohio, so Ohio has its own representatives that are going to, to give an argument before the Supreme Court. The United States itself has an interest because the rule the Supreme Court is about to declare is also going to affect all federal trials. And then the defendant himself, the the individual the defendant, his last name is Clark, his attorneys are also going to give arguments. And one of the things that they're going to be discussing is whether the statements by that child count as testimonial. Whether the purpose of that statement was to create a record for trial. And when the Supreme Court's going to examine whether they should exclude the statements by the child, they're going to actually use a test that they've developed, and it's called the, the Primary Purpose test. They're going to ask whether the statements by that child, whether the primary purpose of those statements was, to create a record for trial, to provide evidence, or to substitute for trial, trial testimony. Perhaps you can think of an example where I might not want to testify a trial so I would tell a police officer that that person injured me and stole my wallet. And I could say that to a police officer with the explicit purpose of having the police officer later testify in trial and tell the jury what I had said but I don't want to testify myself. That's something that would be testimonial, something that the Supreme Court or any court would say violates the confrontation clause. If that evidence is going to be brought before the jury, I have to be present and the defendant has to be able to cross examine me. It gets a little trickier, though, when we're dealing with a child. So, the facts in this case is there was a three year old child that had some, some injuries. His eye was bloodshot. He had a, some bruising around his face. And one of his preschool teachers asked him, hey what's going on? Are you hurt? And then the, the child explains that, somebody hurt him, he tells them that it was the, the father. And then the teachers, by law, have to go and report that and eventually there's a criminal investigation and the defendant is arrested, he's tried and he's convicted for child abuse. So, in this case, the question is going to hinge on whether or not the child was making testimonial statements. Whether the child was speaking with the purpose of preserving some sort of record for a criminal trial. The Supreme Court is actually going to go through a number of factors. They have, a multi-factor test. And one of those is, just, looking at the content of the statement. It's an objective test, so you have to look at the statements themselves, and say. If an objective person is saying this, what do we think the purpose of those statements are? So a statement saying the defendant hurt me or the defendant is the one who hit me. That might be something that the Supreme Court will consider and suggest to the Supreme Court that that might be testimonial. But then there are also going to be other factors the court has to consider as well. One of these is going to be whether the description is talking about past events, things that happen far in the past, or there's something that's a little more continuous and ongoing in the present tense. And again, when the court is going to look at the statements that were involved in this case, it might cut either way. The court will hear that the child was describing something that had happened very recently because the teachers had not noticed any injuries the day before but then they see when the child comes back that there are these injuries on the child's face and body. The other factors that the Supreme Court might look as well is whether this was an emergency situation. And this is something that the, the government of Ohio and the United States Government have argued as well. And their going to focus on this fact, if this is an emergency situation if, if the statements are not for the purpose of preserving some sort of trial record but instead for resolving a dangerous or an imminent threat. Then it's more likely to be admissible. It's not going to be testimonial. It's going to have another purpose that does not actually trigger the Confrontation Clauses Exclusionary Rule. So what the state and the U.S. Government's going to argue is that the statements made by the child is actually part of this ongoing threat. The, the teachers when they ask the student, who hurt you, or what happened? They might have been concerned that it might have actually been another student in the pre-school that had caused the injuries. And then, on top of that, even if it were a parent that caused them, that's something that the daycare providers have to consider as well. Because if they then release the child back home, where all these injuries occurred, that's something that could be an imminent threat or an ongoing situation as well. So, the teachers have to consider whether the child is going to be in danger if they then, at the ring of the bell, send that kid back into the situation that caused the injuries in the first place. And that's something that we'll expect the, the government side to argue is something that the Supreme Court should put a lot of weight in, and the Supreme Court should decide based on that fact that this wasn't testimonial and the evidence does not violate the Confrontation Clause. The last factor that the Supreme Court has mentioned in some of its cases when dealing with statements like these is to look at the, the setting of, of the statements themselves. Where were they said, to whom, and how formal was the situation? So an example that would, that would violate the, the Confrontation Clause is if you can imagine that you're under the lights in an interrogation room and there's a police officer sitting across from you. And then, they're asking you all these statements and you're giving formal statements that are maybe being recorded on video. Or, maybe there's a, somebody that's recording on a, with a, with a recorder, typing in everything into a formal record. Those kind of statements are probably going to be more testimonial, they're going to be more like what you'd see with a court reporter, something in a courtroom setting, something that's a little bit more formal. And it's going to have a greater, greater weight for the Supreme Court in deciding well maybe this was testimonial, maybe the purpose of those statements weren't to resolve some sort of dangerous imminent threat or an emergency. But rather, this is something that you interpret, you thought was going to be used in a, in a trial. But, in this case, the government's going to focus on the fact that this was a, a classroom. The statements were made during the school day, in the classroom. And they were made to a, a teacher, not a police officer. Not somebody that's officially affiliated with the state. So, when you look those kind of factors, I think the Supreme Court is going to look at that and say, this is probably a situation that is not going to trigger the Confrontation Clause, it's not necessarily going to be something that's testimonial, that's not a formal setting. But there is an interesting issue with the second point that the Supreme Court has to consider. And that's the state statute that says, even if your not a police officer a, a teacher has an obligation to report any sort of accusations of abuse to a police officer. So in that sense maybe the teacher is acting as an agent of the state. So while the official check that the, the teacher receives from the mail isn't going to say police officer on it. They're acting in an official, state sanctioned capacity to, to be an investigator, or some sort of police representative. So what the defendant's claim is going to be, what their argument will say is that when these teachers were asking the student about what happened, and where did the injuries come from, and then the teacher reported it. They're going to say that the teacher is trying to illicit this type of information because a teacher was representing the state as a part of a, a police force investigation. The government's going to counter of course and say, well the purpose of the statement again was not to be part of an investigation. There was no police investigation yet. The statements were merely to establish what happened and whether there's an ongoing threat that has to be resolved and whether the teacher is going to feel comfortable or whether it's safe to send to the child back either to the playground or even home. So again, the, the main primary purpose of not only the statements by the child, but also the questions asked by the teacher, whether it was investigative or maybe whether it was just protective, that's going to be another issue on which the case is going to hinge. Now I think with, with all the participation we've had on the discussion forum. This would be an, a very good opportunity just to hear your thoughts. I'm very interested to hear what you think the Supreme Court might do with this general cursory overview of what the Confrontation Clause is all about. You can also go online and search for the case again. It's Clark versus Ohio. This is a type of case that is going to invoke an Exclusionary Rule or the potential use of an Exclusionary Rule. Even if you disagree with what the court decides ultimately, it might also be interesting to talk about what is the nature and the value of having an Exclusionary Rule with a Confrontation Clause. What is the purpose of having a, a Confrontation Clause where a defendant has the right to confront somebody that has accused him of doing something. So I think those are some questions that you might be interested in discussing. I'm looking very much forward to seeing all of your ideas. They've been fantastic to this point. And I hope you are enjoying the course. We have just one week left, and I hope to see you online. [MUSIC]
