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, Washington,
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 Alito delivered the opinion of the
Court.

															Darius Clark sent his girlfriend hundreds of
miles away 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 Clause and therefore
were admissible at trial.

															I

															Darius Clark, who went by the nickname “Dee,”
lived in 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 regularly send her on trips to Washington,
D. C., to work as a prostitute. In March 2010, T. T. went on
one such trip, and she left the children in Clark’s care.

															The next day, Clark took L. P. to preschool. In
the lunchroom, one of L. P.’s teachers, Ramona Whitley, observed
that L. P.’s left eye appeared bloodshot. She asked him
“ ‘[w]hat happened,’ ” and he initially said nothing. 137
Ohio St. 3d 346, 347, 2013–Ohio–4731, 999 N. E. 2d 592, 594.
Eventually, however, he told the teacher that he
“ ‘fell.’ ” Ibid . When they moved into the
brighter lights of a classroom, Whitley noticed “ ‘[r]ed
marks, like whips of some sort,’ ” on L. P.’s face. Ibid. She notified the lead teacher, Debra Jones, who asked
L. P., “ ‘Who did this? 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 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 authorities about the suspected
abuse.

															When Clark later arrived at the school, he
denied responsibility 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 physician
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 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.

															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 teachers as evidence of
Clark’s guilt, but L. P. did not testify. Under Ohio law, children
younger than 10 years old are incompetent to testify if they
“appear incapable of receiving just impressions of the facts and
transactions respecting 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 competent
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.

															Clark moved to exclude testimony about L. P.’s
out-of-court statements under the Confrontation Clause. The 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 sentenced 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
statements violated the Confrontation Clause.

															In a 4-to-3 decision, the Supreme Court of Ohio
affirmed. It held that, under this Court’s Confrontation Clause
decisions, L. P.’s statements qualified as testimonial because the
primary purpose of the teachers’ questioning “was not to deal with
an existing emergency but rather to gather evidence potentially
relevant to a subsequent criminal prosecution.” 137 Ohio St. 3d, at
350, 999 N. E. 2d, at 597. The court noted that Ohio has a
“mandatory 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 reporting law and “sought facts
concerning past criminal activity to identify the person
responsible, eliciting statements that ‘are functionally identical
to live, in-court testimony, doing precisely what a witness does on
direct examination.’ ” Id., at 355, 999 N. E. 2d,
at 600 (quoting Melendez-Diaz v. Massachusetts , 557
U. S. 305 –311 (2009); some internal quotation marks
omitted).

															We granted certiorari, 573 U. S. ___
(2014), and we now reverse.

															II

															A

															The Sixth Amendment’s Confrontation Clause,
which is binding on the States through the Fourteenth Amendment,
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 reliability.’ ” 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 “witnesses,” under the Confrontation Clause, are
those “who bear testimony,” and we defined “testimony” as “a solemn
declaration or affirmation made for the purpose of establishing or
proving some fact.” Id., at 51 (internal quotation marks and
alteration omitted). The Sixth Amendment, we concluded, prohibits
the introduction of 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
questioning at the station house were testimonial and thus could
not be admitted. But our decision in Crawford did not offer
an exhaustive definition of “testimonial” statements. Instead, Crawford stated that the label “applies at a minimum to
prior testimony at a preliminary hearing, before a grand jury, or
at a former trial; and to police interrogations.” 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
statements 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 statements to police that were memorialized
in a “ ‘battery affidavit.’ ” Id., at 820.

															We held that the statements in Hammon were testimonial, 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 circumstances 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 statements 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 circumstances.” Id., at 369. And we reiterated our
view in Davis 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 circumstances, aside from ongoing emergencies, when a statement is
not procured with a primary purpose of creating 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
purpose 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 objectively, the “primary
purpose” of the conversation was to “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 statements were made to law enforcement officers, we
again declined to decide whether the same analysis applies to
statements made to individuals other than the police. See id., at 357, n. 3.

															Thus, under our precedents, a statement cannot
fall within the Confrontation Clause unless its primary purpose 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 –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
Confrontation Clause.

															B

															In this case, we consider statements made to
preschool teachers, not the police. We are therefore presented with
the question we have repeatedly reserved: whether statements to
persons other than law enforcement officers are subject to the
Confrontation Clause. Because at least some statements to
individuals who are not law enforcement officers could conceivably
raise confrontation concerns, we decline to adopt a categorical
rule excluding them from the Sixth Amendment’s reach. Nevertheless,
such statements are much less likely to be testimonial than
statements to law enforcement officers. And considering all the
relevant circumstances here, L. P.’s statements 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 emergency involving suspected child abuse. When L. P.’s
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 ] Thus, the
immediate concern was to protect a vulnerable child who needed
help. Our holding in Bryant is instructive. As in Bryant , the emergency in this case was ongoing, 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
conversation 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 apprehending the abuser or by
some other means is irrelevant. And the circumstances in this case
were unlike the interrogation 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 prosecution.
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 statements to be used by the
police or prosecutors. And the 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
informal 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 children’s
understanding of the legal system finds that” young children “have
little understanding of prosecution.” Brief for American
Professional Society on the Abuse of Children 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 position 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 evidence 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 Children’s Hearsay:
From Old Bailey to Post- Davis , 82 Ind. L. J. 1029, 1030
(2007); see also id., at 1041–1044 (examining 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 flagrant hearsay in rape prosecutions involving a
child victim who was not competent to testify because she was too
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 understood 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 statements 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
testimonial 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.

															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 introduction
of the statements because they were not primarily 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
Confrontation 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 different 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
perception of those statements. Because, in his view, the “jury
treated L. P.’s accusation as the functional equivalent of
testimony,” Clark argues that we must prohibit its 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 statements
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 substitutefor 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
inconsistent with this opinion.

															It is so ordered. Notes 1 Like the Ohio courts, we
identify Clark’s victims and their mother by their
initials. 2 In 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,
150–151. 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, Washington,
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 transforming a
private party into a state actor for Confrontation 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
testimonial 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 inconsistency of L. P.’s answers—making
him incompetent to testify here—is hardly unusual for a child of
his age. And 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 conversation have the
requisite solemnity necessary for testimonial 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 shoveling of fresh dirt upon the Sixth Amendment right of
confrontation so recently rescued from the grave in Crawford v. Washington , 541 U. S. 36 (2004) . For several
decades 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 Clause back to its original
meaning, which was to exclude unconfronted statements made by witnesses — i.e., statements that were testimonial . 541 U. S., at 51. We defined testimony as
a “ ‘solemn declaration or affirmation made for the purpose of
establishing or proving some fact,’ ” ibid. —in the
context of the Confrontation Clause, a fact “potentially relevant
to later criminal prosecution,” Davis v. Washington ,
547 U. S. 813, 822 (2006) . Crawford remains the law. But when else
has the categorical overruling, the thorough repudiation, of an
earlier line of cases been described as nothing more than
“adopt[ing] a different approach,” ante, at 4—as though Crawford is only a matter of twiddle-dum twiddle-dee
preference, and the old, pre- Crawford “approach” remains
available? The author unabashedly displays his hostility to Crawford and its progeny, perhaps aggravated by in-ability
to muster the votes to overrule them. Crawford “does not
rank on the [author of the opinion’s] top-ten list of favorite
precedents—and . . . the [author] could not restrain
[himself] from saying (and saying and saying) so.” Harris v. Quinn , 573 U. S. ___, ___ (2014) (Kagan, J.,
dissenting) (slip op., at 15).

															But snide detractions do no harm; they are just
indications of motive. Dicta on legal points, however, can do harm,
because though they are not binding they can mislead. Take, for
example, the opinion’s statement that the primary-purpose test is
merely one of several heretofore unmentioned conditions
(“necessary, but not always sufficient”) that must be satisfied
before the Clause’s protections apply. Ante, at 7. That is
absolutely false, and has no support in our opinions. The
Confrontation Clause categorically entitles a defendant to be
confronted with the witnesses against him ; and the
primary-purpose test sorts out, among the many people who interact
with the police informally, who is acting as a witness and who
is not . Those who fall into the former category bear testimony,
and are therefore acting as “witnesses,” subject to the right of
confrontation. There are no other mysterious requirements that the
Court declines to name.

															The opinion asserts that future defendants, and
future Confrontation Clause majorities, must provide “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.” Ante , at 10. This dictum
gets the burden precisely backwards—which is of course precisely
the idea. Defendants may invoke their Confrontation Clause rights
once they have established that the state seeks to introduce
testimonial evidence against them in a criminal case without
unavailability of the witness and a previous opportunity to
cross-examine. The burden is upon the prosecutor who seeks to
introduce evidence over this bar to prove a long-established
practice of introducing specific kinds of evidence, such as
dying declarations, see Crawford , supra, at 56,
n. 6, for which cross-examination was not typically necessary.
A suspicious mind (or even one that is merely not naïve) might
regard this distortion as the first step in an attempt to smuggle
longstanding hearsay exceptions back into the Confrontation
Clause—in other words, an attempt to return to Ohio v. Roberts .

															But the good news is that there are evidently
not the votes to return to that halcyon era for prosecutors; and
that dicta, even calculated dicta, are nothing but dicta. They are
enough, however, combined with the peculiar phenomenon of a Supreme
Court opinion’s aggressive hostility to precedent that it purports
to be applying, to prevent my joining the writing for the Court. I
concur only in the judgment. 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 Thomas, concurring in the
judgment.

															I agree with the Court that Ohio mandatory
reporters are not agents of law enforcement, that statements made
to private persons or by very young children will rarely implicate
the Confrontation Clause, and that the admission of the statements
at issue here did not implicate that constitutional provision. I
nonetheless cannot join the majority’s analysis. In the decade
since we first sought to return to the original meaning of the
Confrontation Clause, see Crawford v. Washington , 541
U. S. 36 (2004) , we have carefully reserved consideration of
that Clause’s application to statements made to private persons for
a case in which it was squarely presented. See, e.g., Michigan v. Bryant , 562 U. S. 344 , n. 3
(2011).

															This is that case; yet the majority does not
offer clear guidance on the subject, declaring only that “the
primary purpose test is a necessary, but not always sufficient,
condition” for a statement to fall within the scope of the
Confrontation Clause. Ante, at 7. The primary purpose test,
however, is just as much “an exercise in fiction . . .
disconnected from history” for statements made to private persons
as it is for statements made to agents of law enforcement, if not
more so. See Bryant , supra, at 379 (Thomas, J.,
concurring in judgment) (internal quotation marks omitted). I would
not apply it here. Nor would I leave the resolution of this
important question in doubt.

															Instead, I would use the same test for
statements to private persons that I have employed for statements
to agents of law enforcement, assessing whether those statements
bear sufficient indicia of solemnity to qualify as testimonial. See Crawford, supra, at 51; Davis v. Washington ,
547 U. S. 813 –837 (2006) (Thomas, J., concurring in judgment
in part and dissenting in part). This test is grounded in the
history of the common-law right to confrontation, which “developed
to target particular practices that occurred under the English bail
and committal statutes passed during the reign of Queen Mary,
namely, the civil-law mode of criminal procedure, and particularly
its use of ex parte examinations as evidence against
the accused.” Id. , at 835 (internal quotation marks
omitted). Reading the Confrontation Clause in light of this
history, we have interpreted the accused’s right to confront “the
witnesses against him,” U. S. Const., Amdt. 6, as the right to
confront those who “bear testi-mony” against him, Crawford ,
541 U. S. , at 51 (relying on the ordinary meaning of
“witness”). And because “[t]estimony . . . is
. . . a solemn declaration or affirmation made for the
purpose of establishing or proving some fact,” ibid. (internal quotation marks and brackets omitted), an analysis of
statements under the Clause must turn in part on their solemnity, Davis , supra, at 836 (opinion of Thomas, J.).

															I have identified several categories of
extrajudicial statements that bear sufficient indicia of solemnity
to fall within the original meaning of testimony. Statements
“contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions” easily qualify. White v. Illinois , 502 U. S. 346, 365 (1992)
(Thomas, J., concurring in part and concurring in judgment). And
statements not contained in such materials may still qualify if
they were obtained in “a formalized dialogue”; after the issuance
of the warnings required by Miranda v. Arizona , 384
U. S. 436 (1966) ; while in police custody; or in an attempt
to evade confrontation. Davis , supra, at 840 (opinion
of Thomas, J.); see also Bryant , 562 U. S., at 379
(same) (summarizing and applying test). That several of these
factors seem inherently inapplicable to statements made to private
persons does not mean that the test is unsuitable for analyzing
such statements. All it means is that statements made to private
persons rarely resemble the historical abuses that the common-law
right to confrontation developed to address, and it is those
practices that the test is designed to identify.

															Here, L. P.’s statements do not bear sufficient
indicia of solemnity to qualify as testimonial. They were neither
contained in formalized testimonial materials nor obtained as the
result of a formalized dialogue initiated by police. Instead, they
were elicited during questioning by L. P.’s teachers at his
preschool. Nor is there any indication that L. P.’s statements were
offered at trial to evade confrontation. To the contrary, the
record suggests that the prosecution would have produced L. P. to
testify had he been deemed competent to do so. His statements bear
no “resemblance to the historical practices that the Confrontation
Clause aimed to eliminate.” Ibid. The admission of L. P.’s
extrajudicial statements thus does not implicate the Confrontation
Clause.

															I respectfully concur in the judgment.