By Taylor Sisk
â€œYou have the right to remain silent. Anything you say can and will be used against you â€¦â€
Itâ€™s the Miranda warning, and weâ€™ve most all heard it dozens of times on TV and in the movies. Miranda was instituted in 1966 to help protect criminal suspects against self-incrimination. It must be read before a suspect in custody is interrogated.
Last Wednesday, though, some interesting questions were raised before the Supreme Court regarding the application of Miranda to adolescents. At the center of it all was the question of whether age should be a factor in determining if itâ€™s necessary to read a suspect his or her Miranda rights.
The case is J.D.B. v. North Carolina, and the argument began its path to the Supreme Court on Sept. 29, 2005 at Smith Middle School in Chapel Hill.
On that day, a then seventh-grade special-education student, identified today only as J.D.B., was taken out of his social studies class and interrogated in a conference room by a Chapel Hill police investigator concerning some recent residential break-ins. Three other adults, including the school resource officer and assistant principal, were present. The door was closed but not locked.
J.D.B. confessed to having entered a home, but did so without having been read his Miranda rights. The authorities argued that J.D.B. was never in custody â€“ was free to leave at any moment â€“ and that they thus werenâ€™t required to read him his rights.
J.D.B.â€™s attorney filed a motion to have the confession suppressed, arguing that the youth couldn’t reasonably have been expected to think he could walk away from two uniformed police officers and two school officials. But the courts, up to the state Supreme Court, ruled that he had confessed voluntarily.
According to the law, custodial interrogation is â€œquestioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.â€
If a â€œreasonableâ€ person feels he is free to go, heâ€™s not in custody, and neednâ€™t be read his rights.
But last Wednesday before the Supreme Court, Assistant Appellate Defender Barbara Blackman argued that there are cognitive differences between children and adults in both perception and understanding, and that in failing to consider age when deciding whether to read the Miranda warning â€œwe are requiring these children to be someone that they never could be, and that is reasonable adults.â€
Several justices expressed concern that introducing subjectivity into the determination of when Miranda should be read would make law enforcementâ€™s job too difficult.
â€œThe whole point of the Miranda rule, I thought, was to provide clear, objective guidelines about what the police are supposed to do,â€ Chief Justice John Roberts told Blackman. â€œAnd it seems to me that one of the difficulties with your rule, however clear it may seem in this case â€¦ is that that’s off the table.â€
North Carolina Attorney General Roy Cooper, who argued the stateâ€™s case, said that introducing age as a factor would turn Miranda â€œupside down.â€
Justice Elena Kagan disagreed.
â€œThere are all manner of circumstances which go into the determination of whether a person would feel free to leave â€“ how many people are in the room, how long the interrogation is, where the interrogation is, the particular circumstances of the interrogation,â€ Kagan said.
The Miranda rule is not a â€œbright-line test,â€ Kagan said. Consideration of age would be one more objective factor in an â€œalready multifaceted inquiry.â€
Justice Stephen Breyer asked what if â€œUkrainian is the only thing he speaksâ€ or â€œthere are very steep steps and he’s in a wheelchair. Are you willing to take that into account?â€
Cooper replied that he would, but asserted that the way age factors in is more elusive.
Cooper further allowed that Miranda has gray areas, but that â€œit’s informed with 45 years of case law. And officers now have a pretty good idea as to what combination of factors constitutes custody for Miranda purposes.â€
Several justices suggested that requiring a police officer to consider age when deciding whether to read Miranda would require that officer to climb inside the head of an adolescent to determine whether he understood he was free to go.
Orange County District Attorney Jim Woodall said this week that both defense and prosecution teams will sometimes bring in psychologists who conduct many hours of interviews and tests and still disagree on a suspectâ€™s mental state.
â€œAnd you want officers to make that determination?â€ Woodall said. â€œThey canâ€™t do it. We need an objective standard.â€
But Breyer suggested in the hearing that, â€œNobody has to think like anybody. All they have to think is â€˜let’s err somewhat on the safe side.â€™â€
Law-enforcement officers â€œdonâ€™t get inside adultsâ€™ heads either,â€ Blackman said this week. â€œThey just need to make general assumptions.â€
Another concern raised by several justices was whether it was reasonable to expect an officer to be able to determine a young personâ€™s age.
â€œWhen the policeman sees him, he’s dressed in baggy jeans, you know, down around his thighs, and when the judge sees him he’s wearing a Buster Brown jumper suit,â€ said Justice Antonin Scalia. â€œYou don’t really think that it’s going to be equivalent?â€
Limit consideration of age to when the age is known, or is readily apparent, said Justice Ruth Bader Ginsburg.
If the officer â€œnot only knows he’s dealing with a seventh-grader but he decides the venue for the questioning is going to be a room in the school,â€ Ginsburg said, â€œit’s not a mystery. It’s not a guess. He knows he’s dealing with a seventh-grader.â€
Which way Kennedy?
â€œThe court seems completely divided on this,â€ said Barbara Fedders, a clinical assistant professor in the UNC School of Law and co-author of a brief on behalf of J.D.B. â€œWhatâ€™s uncertain is what Justice Kennedy is thinking.â€
As is so often the case, Justice Anthony Kennedy is expected to be the swing vote. Heâ€™s come down on the side of juveniles in two high-profile decisions, but itâ€™s unclear where he may stand on Miranda.
Fedders, who was present for the argument, said that at times Kennedy seemed sympathetic to J.D.B.
â€œI guess part of my problem is it’s just in some respects hard to put the Miranda in the context of a 13-year-old alone,â€ Kennedy said. â€œIt may be that Miranda warnings, â€˜You have a right to remain silent, anything you say can be used against you,â€™ might terrify the kid just to hear about it.
â€œI’m just wondering how the Miranda warning works here anyway. The school is in loco parentis [in place of the parent], it has certain obligations and privileges with respect to the student.â€
But at another point in the proceedings, Kennedy seemed to suggest he felt protection of youth was sufficiently provided under the rule of voluntariness, in which a judge decides whether a confession is in fact voluntary.
What was apparent, Fedders said, was that the justices were truly engaged by this case: â€œThey seemed really invested in this.â€
Blackman agreed: â€œClearly, they had been arguing [the issue] with each other before entering the room.â€
â€œItâ€™s a good thing that the Supreme Court is weighing in on this,â€ Woodall said. â€œItâ€™s a unique question.â€
A decision will most likely come down in May or June.