Under our Constitution, the condition of being a boy does not justify a kangaroo court. In re Gault, 387 U.S. 1, 28 (1967). Neither the Fourteenth Amendment nor the Bill of Rights is for adults alone. Id. at 13, 33-34, 41, 55, 57.
A 15-year-old boy sat in a room until the police showed up. He asked the boy to follow him into another room where more adults were present. The 15 year old's parents were not one of these adults. The 15 year old was questioned about the boy's involvement in a series of home burglaries while the other adults encouraged the boy to tell the truth. The boy then implicated himself in the home burglaries, acts for which he was later taken to juvenile detention. He claimed that as the officers did not read him his Miranda rights, his statement could not be used against him. At first glance, it would appear his privilege against self-incrimination had indeed been violated. Unfortunately, a court would find that the 15 year old had no Miranda rights since he was in school when the police interrogated him and therefore not in custody. Cf., In re J.H. 928 A.2d 643, 650–51 (D.C. 2007) (police did not improperly fail to Mirandize a student before interrogating him at school about sexually abusing his three-year-old sister.)
School atmosphere today is different than in the past. Law enforcement and school administration cooperate, and from a student’s perspective, against students. Paul Holland, Schooling Miranda: Policing Interrogation in the Twenty-First Century Schoolhouse, 52 Loy. L. Rev. 39, 76-77 (2006); Michael Pinard, From the Classroom to the Courtroom: Reassessing Fourth Amendment Standards in Public School Searches Involving Law Enforcement Authorities, 45 Ariz. L. Rev. 1067, 1079 (2003) That feeling is justified since students’ behaviors are being reported to the police more frequently than ever. Pinard, at 1079–80. A student today perceives little difference between a school administrator and the police. Holland, at 76–77. Over-Policing in Schools on Students’ Education and Privacy Rights, N.Y. Civ. Liberties Union, http://www.nyclu.org/content/over-policing-schools-students-education-and-privacy-rights (noting that the over-policing of schools “foster[s] environments where children perceive that they are being treated as criminals . . . consequentially, [students] cultivate negative attitudes toward their schools”)
Under Miranda v. Arizona, 384 U.S. 436 (1966) incriminating statements made during custodial interrogations are inadmissible unless the individual is first advised that he has the right to remain silent, right to consult with counsel and to have counsel present during the interrogation, and right to have an attorney provided if he cannot afford one. Experience and reading cases interpreting Miranda indicate that courts will speak about how important Miranda is and then promptly say Miranda does not apply or has been waived. See, Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam) (police do not have to give Miranda warnings to everyone they question). This judicial hostility to Miranda is exemplified by statements suppressed because of Miranda violations can still be used to impeach respondents who testify at trial. Oregon v. Hass, 420 U.S. 714, 722-24 (1975); Harris v. New York, 401 U.S. 222, 226 (1971). Likewise, in Chavez v. Martinez, the Court held that the failure to give Miranda warnings during a custodial interrogation is not a constitutional violation of the Fifth Amendment where the non-Mirandized statements are not used against the suspect in court. 538 U.S. 760, 764, 767 (2003). The opinion again refers to Miranda as a prophylactic rule, weakening the argument that Miranda is a constitutional rule as expressed in Dickerson v. United States, 530 U.S. 428, 444 (2000).
Before Miranda was decided, the Supreme Court recognized additional protections for juveniles subject to police interrogations. Haley v. Ohio, 332 U.S. 596, 601 (1948). In Haley, the Court held that a child cannot be held to the same standards as an adult in interrogations because a fifteen-year-old defendant “cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.” Id.
Courts use the following objective test to determine whether a custodial interrogation took place:
- Whether a reasonable person would feel that he or she was not at liberty to terminate the interrogation and leave. Thompson v. Keohane 516 U.S. 99, 112 (1995). Whether there is a “formal arrest or restraint on freedom of movement” of the degree associated with a formal arrest. California v. Beheler, 463 U.S. 1121 1125 (1983).
Factors in the custody analysis:
AGE: J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011).
- This is separate from age in the context of a voluntariness test.
- “children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them.” Id. at 2403 "The common law has reflected the reality that children are not adults," at 2404. "A reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis." Id at 2403.
- Child’s age has a bearing on the Miranda analysis if the child’s age was known to the officer, or was objectively apparent to a reasonable officer.
- “A child's age is far ‘more than a chronological fact.’ It is a fact that ‘generates commonsense conclusions about behavior and perception.’ Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.” (internal citations omitted). So age is not a matter of chronological fact but more a measure of the intellectual ability to understand Miranda warnings given? Interestingly, 63.3 percent of children misunderstood at least one word that is critical to the meaning of the Miranda Thomas Grisso, Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134, 1153-54 (1980) Similarly, 44.8 percent of children, compared with 14.6 percent of adults, did not understand the warning that they have the right to consult with an attorney before interrogation and to have an attorney with them during interrogation. Id. About 24 percent of children, compared with 8.5 percent of adults, did not understand what it means that anything you say can be used against you in court. Id. at 1154. See, Kelli L. Ceraolo, Custody of the Confined: Consideration of the School Setting in J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), 91 Neb. L. Rev. (2013). The risk of false confessions increases with juveniles as “[t]hey think less strategically and more readily assume responsibility for peers than do adults,” Barry C. Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and Practice, 97 J. Crim. L. & Criminology 219, 244-46 (2006). and “are more likely to comply with authority figures and to tell police what they think the police want to hear.” Id.
- But see, Yarborough v. Alvarado, 541 U.S. 652, 663-665 (2004) holding that it was reasonable for lower court not to consider defendant’s age in finding that 17-year-old defendant was not in custody for Miranda purposes because he was not threatened with arrest, was offered breaks, his parents were just outside in the lobby, and he was released home. Though the Court held that the state court’s failure to consider Alvarado’s age for purposes of custody inquiry was not unreasonable, five Justices did endorse the proposition that age should be generally taken into account in the Miranda analysis of custody.
- Compare People v. Croom, 883 N.E.2d 681, 689 (Ill. App. 4th Dist. 2008) (declining to adopt a modified reasonable person standard to account for the juvenile’s youth and experience on the grounds that such a modification “incorporates a subjective factor into an objective test”); In re Interest of Tyler F., 755 N.W.2d 360, 370-371 (Neb. 2008) (declining to consider suspect’s age in a custody inquiry); State v. Turner, 838 A.2d 947, 965 n. 17 (Conn. 2004) (rejecting the defendant’s “age, his unfamiliarity with our criminal justice system, [and] his presence in this country for two years” as relevant to the objective Miranda custody inquiry) with In re R.H., 2008 WL 501595 at*5 (Ohio App. 2008) (expressly acknowledging the 11-yr-old suspect’s youth as relevant to the custody inquiry); M.B. v. State, 927 So.2d 219, 223 (Fla. App. 2d Dist. 2006) (accounting for the juvenile suspect’s age and experience with law enforcement as part of a custody analysis); Commonwealth v. A Juvenile, 402 Mass. 275, 277 (1975) (The test for custody is how a reasonable person in the juvenile’s position would have understood his/her position)(emphasis added).
In what capacity is the school official acting? For an educational purpose? “A principal, acting alone and without invoking or outwardly benefiting from the authority of any law enforcement officer may question a student without complying with Miranda’s requirements. A student’s answers to such questions will be admissible at subsequent juvenile or criminal proceedings.” Paul Holland, Schooling Miranda: Policing Interrogation in the Twenty-First Century Schoolhouse, 52 Loy. L. Rev. 39, 40–41 (2006). For analysis of the requirement of Miranda warnings when school administrators “act as law enforcement,” see generally id. This distinction between law enforcement and school administrators acting pursuant to their administrative duties is like allowing warrantless school searches to maintain school discipline. New Jersey v. T.L.O., 469 U.S. 325, 342 (1985)
- Who was present for the interrogation? Police / SRO presence increases likelihood of custodial finding. State v. Doe, 948 P.2d 166, 173 (Idaho 1997) (holding Miranda applied to fifth grader’s statements made during questioning by SRO because student reasonably believed he was in custody when he received a mandatory directive to report to faculty room, he knew the interviewer was a police officer, and he was not informed that he could leave or refuse to answer questions); In re Welfare of D.J.B., 2003 WL 175546 (Minn. App. 2003) (unpublished opinion) (interrogation of student by SRO was custodial even though SRO told student he was free to leave because student was pulled out of class without explanation, SRO shut the door and sat between the student and the door during the interrogation, student was not informed of his right to an attorney or to have his parents present, and interrogation was recorded; the “soft Miranda” rights the SRO office gave were not proper because a reasonable person would have believed he was in custody)
- Where was the questioning done? Was the student mandated to report to the office? California v. Beheler, 463 U.S. 1121, 1122, 1125 (1983) (questioning in a police station interrogation house was not found to be custodial where the interrogated appeared in the station voluntarily); Orozco v. Texas, 394 U.S. 324, 325-27 (1969) (holding Orozco was in custody when he was questioned in his bedroom by multiple officers); Husband v. Turner, 07-CV-391-bbc, 2008 WL 2002737, at *3 (W.D. Wis. 2008) (finding that minor who was questioned by police at school was in custody because he was escorted to a closed room by security and never told he was free to leave or to refrain from answering questions).
- Circumstances of questioning