Argument preview: Youth and Miranda rights
At 11 a.m. on Wednesday, the Supreme Court will hold one hour of oral argument on whether children being interviewed by police at school have a right to be warned about their constitutional rights, under Miranda v. Arizona (1966). The new case is J.D.B. v. North Carolina (09-11121). Arguing for the youth involved will be Barbara S. Blackman, an assistant appellate public defender from Durham, N.C. The state of North Carolina will be represented by its Attorney General, Roy Cooper. He will divide time with Eric J. Feigin, an assistant to the U.S. Solicitor General, who will have 10 minutes to argue for the federal government in support of the state’s position.
In the 45 years since the Supreme Court, in Miranda v. Arizona, required police to warn suspects they were holding about their constitutional rights before questioning could begin, the Court has never said whether that requirement should be tailored differently when the suspect was a minor. The Court came close to answering that question “No” in a 5-4 decision in 2004, Yarborough v. Alvarado, but technically it did not actually do so. Even so, the North Carolina Supreme Court, in a 2009 decision now under review by the Justices, did answer “No,” saying that it found the Yarborough decision to be “persuasive.”
Although the Court has said that a minor’s young age should be a factor for some constitutional purposes — for example, minors cannot be executed for a murder they committed — it had not said how far that special consideration of vulnerability and immaturity is to extend. The case of J.D.B. v. North Carolina is expected to provide an answer, at least for the Miranda warnings equation.
The answer appears to turn on whether the Justices see youthful age as influencing the decision on whether a person was “in custody” by police. Officers have no constitutional obligation to tell individuals about their rights unless that person actually is being detained by police — that is, the person is not free to get up and leave. When a person is in custody, the Court has reasoned, the psychological effects of being unable to get free of that atmosphere may well affect whether a confession that a suspect gives was given voluntarily or coerced. Thus, with a custody finding goes the duty to warn about the right to remain silent, the right to have a lawyer, and so on, as Miranda specified.
The Court now has what appears to be an ideal case to test two aspects of the custody question: does a suspect’s youthful age make a difference, and does the fact that police questioning takes place at the youth’s school make a difference?
In September 2005, an investigator of juvenile crime for the Chapel Hill, N.C., Police Department, Joseph DiCostanzo, was looking into break-ins in two Chapel Hill homes. Among the items stolen were a digital camera, a cellphone, and some jewelry. Another officer had told DiCostanzo that the other officer had talked to two juveniles, including one said to be named Jason, about “peeping” into homes in the same neighborhood. DiCostanzo learned from one of the homeowners that a boy (since identified in court papers only as J.D.B.) had mowed her lawn. From a yearbook picture from Smith Middle School, the investigating officer identified J.D.B. as a 13-year-old, who was a special education student.
Officer DiCostanzo also was told by a police officer assigned to that school that a parent had brought a digital camera to school that might match the stolen one. Those two officers met with school officials, telling them that they had information linking J.D.B. to the break-ins. The boy was taken out of class, and escorted to a conference room; his grandmother (J.D.B.’s legal guardian) was not notified. After discussing neutral topics, Officer DiCostanzo got around to the investigation. J.D.B. was not told about his rights, and was not told then that he was free to leave the encounter.
Ultimately, the youth was told that police had the digital camera that had been stolen. An assistant principal in the gathering told the boy that he wanted him to “do the right thing,” and that “truth always comes out in the end.” The boy then asked if he would still be in trouble if he brought back the items. The officer said that would help, but that the boy needed to make the situation “right.” Soon after that, the boy was told he did not have to talk and that he could get up and leave, but the officer said that he wanted the youth to listen to what the officer had to say. J.D.B. then confessed to taking the camera, and said another boy had stolen a cellphone. He blamed the other boy for planning the break-ins.
The officer drew from the boy further details about both break-ins, and then asked J.D.B. to write down what he recalled about the incident; the boy did so. The officer asked the boy to promise never to do such a thing again, and the boy agreed. The boy was then allowed to go to catch the school bus home; the interview had lasted between 35 and 45 minutes.
Later, two charges of juvenile delinquency were filed against J.D.B., each for breaking and entering and for larceny. A lawyer for J.D.B. sought to block the use of the boy’s confessions and of the stolen goods, but the trial judge refused, saying J.D.B. was not in custody during the school interview, so the evidence could be used against him. The boy was formally ruled a delinquent, and placed on probation.
The case then proceeded through state appeals courts, with the North Carolina Supreme Court, in a 4-3 ruling on December 11, 2009, deciding that J.D.B. was not in custody and therefore was not entitled to “Miranda warnings” before he could be questioned. The state court majority concluded that, in the school setting, students are under restrictions but that those do not amount to limitations on their freedom of movement. For Miranda to apply, it said, the police would have to have explicitly imposed restraints on the youth’s freedom to leave, and it found that that did not happen in this case.
The state court majority went on to rely upon the reasoning of the Supreme Court in the 2004 decision in the Yarborough v. Alvarado case. Under that decision, the state judges noted, the question of whether an individual is in police custody is supposed to be entirely an objective one, so the question does not turn on any judgment as to the effect of a youth’s age or status as a student. Subjective mental characteristics, like the immaturity of youth, have no place in the objective assessment of whether a reasonable person would have felt free in the circumstances to get up and leave, the state court said.
Yarborough was a federal habeas case, and the Court’s comments about the necessity of keeping the custody issue as an objective assessment came in the context of deciding that a state court had not unreasonably applied prior Supreme Court precedent in concluding that the suspect’s age and prior experience with law enforcement need not figure in the custody analysis. The strength of the majority opinion in that case was somewhat qualified because then-Justice Sandra Day O’Connor, while joining that opinion, wrote separately that there could be circumstances in which a suspect’s age would count in the custody calculation.
That O’Connor opinion, plus the fact that Yarborough did not explicitly settle the age issue as a general constitutional matter under Miranda, provided the rationale for J.D.B.’s lawyer to take the case on to the Supreme Court.
Petition for Certiorari
Asking the Supreme Court to settle the age issue, J.D.B.’s petition for review contended that that question was still an open one for the Court, but noted that the lower courts had grown divided over it. Before the Yarborough decision, the petition asserted, “all jurisdictions that had addressed the issue” had ruled that juvenile status was a proper factor in the custody analysis. Since Yarborough, it added, some lower courts have continued to consider age either as a factor in the “totality of circumstances” review or as a factor in determining whether “a reasonable juvenile” would feel free to leave in the circumstances. But, elsewhere, courts concluded that Yarborough barred such considerations of age.
The petition also sought to exploit the fact that Justice O’Connor had written separately in Yarborough, and argued that, since the Court was split 5-4, the O’Connor opinion was actually the controlling one under the interpretive theory that such a middle-ground decision straddles between the majority and the dissent.
Age, the petition asserted, is not a subjective fact, but an objective one. “Children,” it said, “are not the same as adults,” and they “are more susceptible to police coercion than adults….Recent research indicates that children under the age of 15 are substantially more likely to be intimidated by authority than are older adolescents and young adults.”
The state of North Carolina waived its right to respond to the appeal, but the Court then asked it for a response.
In replying, the state urged the Court not to hear J.D.B.’s appeal, relying heavily upon its argument that the Yarborough decision had settled the question, and had held that “the objective Miranda custody analysis does not include consideration of subjective individual characteristics, including age.” It quoted Justice Anthony M. Kennedy’s main opinion in that case: “There is an important conceptual difference between the Miranda custody test and the line of cases from other contexts considering age and experience. The Miranda custody inquiry is an objective test.’ ”
If a suspect’s age and experience are put into the constitutional calculus, the state contended in J.D.B.’s case, that “would require speculation by police officers as to how such factors would affect the suspect’s state of mind, thereby turning the inquiry into a subjective one.” And, the state’s opposition argued, Justice O’Connor in her separate opinion had acknowledged that ” ‘even when police do know a suspect’s age, it may be difficult for them to ascertain what bearing it has on the likelihood that the suspect would feel free to leave.’ ”
There also would be a problem, the state argued, when the suspect was close to 18 years old, but still legally a minor, and that, too, would complicate the task of police in knowing whether or not such a youth was in custody and thus had to be warned before questioning could occur.
The Juvenile Law Center, in an amicus brief, urged the Court to hear the case, making the argument that children are different, and should be treated as such for purposes of the custody question.
The Court granted the case for review on November 1.
The youth’s brief on the merits again attempted to get around the Yarborough decision’s insistence that the Miranda custody question is an “objective test,” by insisting that the Court “has never excluded any objective circumstance from the custody analysis,” and that “a child’s age is readily observable,” thus making it an objective fact. Because the status of being a minor “renders a child particularly susceptible to the coercive techniques of police interrogation,” the brief asserted flatly that “no statement obtained from a juvenile could truly be the product of his free choice.”
The brief, though, also relied on the “totality of the circumstances” prong of custody analysis. It ticked off 15 specific aspects of Officer DiCostanzo’s actions at the schoolhouse, each put forth as an indication that J.D.B. was being held against his will and in circumstances that would overwhelm his adolescent capacity to make a free choice. The list was a combination of purported attempts to win J.D.B. over by “building rapport,” threats of what might happen to the boy, and assertions that the boy had been caught red-handed.
The brief also made heavy use of the Supreme Court’s decision in 1967 in In re Gault, for the first time extending the Fifth Amendment’s privilege against self-incrimination to juveniles. Even before that decision, however, the brief said, the Court had counseled “special caution” when confronted with admissions and confessions made by minors.
At some points, the brief appeared to be hinting at a narrower rule of Miranda law when a child is as young as J.D.B. — 13 — and when police questioned such a youth at a school where the pupils’ age clearly would not be in doubt — an elementary or middle school. This was part of an overall argument about the susceptibility of children so young to potential coercion and intimidation.
The state of North Carolina’s brief on the merits was a straightforward plea to keep the Miranda equation simple: it should be confined, the brief asserted, to such objective facts as “the length and location of the interrogation, the use of handcuffs or other restraints, and whether the suspect was informed that he or she was free to leave.” If officers were compelled to look beyond such facts, and instead to focus on “personal characteristics,” the brief said, it would “require them to step into the shoes of a suspect and speculate how that unique individual may subjectively evaluate whether he or she is free to leave.” That, it argued, “is not fair to law enforcement officers.”
Tying the duty to provide warnings about rights to a judgment about “what the suspect may be thinking,” the state brief contended, would run completely counter to the Supreme Court’s repeated emphasis on keeping the custody inquiry an objective one, readily applied by police operating in the field.
The state’s brief did not argue that minors should simply be abandoned to the sensibilities of interrogating police officers. It is always open to a defense lawyer for a minor, the brief noted, to challenge a confession given by a youth as involuntary. Indeed, it noted, it would be entirely proper to take a youth’s minor status into account as a factor in the voluntariness inquiry. That serves an entirely different purpose from Miranda, it argued. The question of voluntariness necessarily is keyed to the suspect’s individual characteristics; the question of custody for Miranda purposes is designed to “cut through the difficulties of making such a subjective determination,” according to the brief.
The Justice Department, lined up on the state’s side of the case, argued in its amicus brief that the Supreme Court adopted the Miranda approach precisely because the prior focus under the Due Process Clause upon the question of voluntary or involuntary confessions had led to the possibility of the admission in court of in-custody confessions that were involuntarily given. “In order to counteract that risk,” the brief said, “Miranda adopted an additional procedural rule” to provide “police and courts with clear guidance about how questioning must be conducted in order for statements obtained to be admissible.” The Yarborough decision, the brief added, stressed that an objective test of custody “plays a critical role in maintaining the clarity of the Miranda rule.”
The government brief sought to persuade the Court that ruling as J.D.B. had requested would be a major departure from 45 years of post-Miranda jurisprudence, by introducing the highly variable inquiry into “the suspect’s psychological vulnerability.”
J.D.B. has the support in amici briefs filed by the American Bar Association and the Juvenile Law Center, as well as civil liberties organizations and criminal defense lawyers, as well as a group named the Center on Wrongful Convictions of Youth joined by other groups and individual advocates for youth. Supporting North Carolina are 31 states and Puerto Rico, as well as a prosecutors’ organization, the National District Attorneys Association.
The Court’s membership has changed significantly in the seven years since Yarborough v. Alvarado was decided, but three members of the majority remain — Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas. If they are inclined to see that precedent as having gone far toward defining the basic essence of the Miranda custody inquiry, it is not difficult to imagine that they could draw in support from Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., and make a solid majority against including the age factor as part of that inquiry.
There is, of course, language in Justice Kennedy’s opinion in that 2004 decision that suggests a conception of the custody test that does not allow for any subjectivity to enter in. And so that might indicate that, unless Kennedy can be persuaded that age is an “objective” fact, as J.D.B.’s lawyers seek to portray it, the Yarborough decision could turn out to be a more binding opinion on just what Miranda means.
Remaining on the Court are two of the dissenters in Yarborough, Justices Stephen G. Breyer and Ruth Bader Ginsburg, already firmly on record in favor of treating a youth’s age as “a relevant factor” in the custody equation. And, it is not difficult to imagine that they could attract Justices Elena Kagan and Sonia Sotomayor to that perception. But, to prevail, that combination, if it existed, would have to find a fifth vote. Perhaps, the most likely candidate for that vote might well be — perhaps a bit surprisingly — Justice Kennedy.
He is the author of the Court’s most protective decisions for the rights of minors in the criminal justice system, including, of course, the conclusion that it is unconstitutional to impose a death sentence for a murder committed by a person when still a minor. He has adopted much of the modern social science and other behavioral studies on the comparative incapacity of juveniles to make mature choices about criminal matters. That, of course, forms a major part of the advocacy on J.D.B.’s side of the case.
It could be, then, that — as often is the case — observers of oral argument in this case will focus quite closely on what Justice Kennedy has to say.
Recommended Citation: Lyle Denniston, Argument preview: Youth and Miranda rights, SCOTUSblog (Mar. 22, 2011, 5:51 PM), http://www.scotusblog.com/2011/03/argument-preview-youth-and-miranda-rights/