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Certiorari Grants from the Long Conference

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The U.S. Supreme Court issued its short orders list from the "long conference" two days later than usual this year.  Among the cases taken up is Ohio v. Clark, No. 13-1352.  The Questions Presented are:

1. Does an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause?

2.  Do a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as "testimonial" statements subject to the Confrontation Clause.

Also granted is Rodriguez v. United States, No. 13-9972.  The Question Presented is:

This Court has held that, during an otherwise lawful traffic stop, asking a driver to exit a vehicle, conducting a drug sniff with a trained canine, or asking a few off-topic questions are "de minimis" intrusions on personal liberty that do not require reasonable suspicion of criminal activity in order to comport with the Fourth Amendment. This case poses the question of whether the same rule applies after the conclusion of the traffic stop, so that an officer may extend the already-completed stop for a canine sniff without reasonable suspicion or other lawful justification.

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As I noted in my comment on The Confrontation Blog (confrontationright.blogspot.com), the teachers who questioned the child in Clark were not "state actors" and, therefore, the Confrontation Clause (CC) cannot serve as a bar to the introduction of the child's hearsay statements at the defendant's criminal trial. I also noted that, even if the Confrontation Clause applied, the child was not a "witness against" the defendant (within the meaning of the CC) because (1) the primary purpose of questioning the child was not to accuse a targeted person of a crime and (2) there was no formality/solemnity attending the giving of the hearsay.

This is a very important CC case (especilly the "state action" question) that has far-reaching implications to the criminal justice system in general and crime victims in particular. Thus, I hope that the CJLF will be filing an amicus brief. To the extent that CJLF is interested, I am willing to assist in the drafting of that brief, as I previously did in the Davis & Hammon cases (before the Supreme Court) and in the Cage case (before the California Supreme Court). (I would note that the "primary purpose" test adopted by the Court in Davis/Hammon was the product of my assisting in the drafting of the briefs in those cases. And the "accuse a targeted person of a crime" test adopted by four justices in Williams was formulated by me in pre-Williams postings on The Confrontation Blog.

I know Kent is brilliant. But if he would like my assistance in drafting an amicus in Clark, let me know. I am particularly interested in the "state action" aspects of the case.

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