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Thursday, July 04, 2013

When Police Question Young Suspects

Two years ago, Justice Sotomayor delivered the opinion of the Court in JDB v. North Carolina, an important decision and one to which I had a personal connection.  When I had been practicing in the juvenile delinquency courts of North Carolina for only a year, UNC's Juvenile Justice Clinic was appointed to represent a young man who was the co-defendant to JDB, a 13-year-old special education student at one of our local middle schools (the one my older daughter currently attends).  Weeks earlier, the Chapel Hill juvenile police investigator at the time, DiCostanzo, had been stymied from questioning JDB at his home about a string of neighborhood burglaries (JDB's grandmother, who was his legal guardian, had not allowed it), so DiCostanzo went to Smith Middle School to talk to the boy there.  DiCostanzo had the school resource officer (a uniformed cop on detail to the school) take JDB out of his social studies class and bring him to a small conference room where they were joined by the assistant principal (the school disciplinarian) and another adult who was an administrative intern.  

Long story short -- the adults closed the door and began questioning JDB who initially denied any involvement in the crimes, but after they told him to "do the right thing" and threatened to place him in juvenile detention, he confessed.  Because DiCostanzo et al. didn't consider the questioning to be custodial, JDB's grandmother was never contacted (which was required for custodial interrogation of juveniles under the NC Juvenile Code), and he wasn't given Miranda or told he could leave, make a phone call, etc.  At the motion to suppress hearing in the local juvenile court, I sat and watched JDB's public defender expertly cross-examine DiCostanzo, clearly showing that as a result of JDB's age/youth/student status, no one in his position would have felt free to leave the conference room -- or, for that matter, challenge two police officers and school administrators.  Although I was angry when the suppression motion was denied, I was hardly surprised, as I had become long resigned to the fact that common sense rarely prevailed in juvenile court.  

About six years later, I paid the fee to join the USSC bar, drove up to D.C., and sat several rows away from the justices when the case was argued.  At one point, Justice Breyer asked with no small degree of sarcasm, "And what is the terrible thing, the awful thing that has to happen if the officer isn't sure whether this individual thinks he's in custody or not?  Suppose the officer just isn't sure.  What terrible thing happens?"  He paused and then said, "The terrible thing that happens is you have to give them a Miranda warning."  To which Justice Scalia responded, ""We don't want Miranda warnings to be given where they are unnecessary because they are only necessary to prevent coercion, and where there's no coercion, we want confessions, don't we?" To emphasize his point, he added, "It's a good thing to have the bad guys confess that they're bad guys, right?"  Breyer, of course, recognized the irony -- that giving Miranda has a negligible effect on most interrogations, particularly if the suspect is a 13-year-old boy questioned at school.  In contrast, Scalia didn't want criminal suspects -- no matter their age -- to have any perceived advantage.

I was heartened when the decision came down several months later and the liberal justices -- joined by Justice Kennedy -- reversed the denial of JDB's suppression motion (which the NC appellate courts had affirmed) and remanded the case to address whether interrogation was custodial taking into account the boy's age at the time.  In relying on Roper v. Simmons (ending the juvenile death penalty) and Graham v. Florida (ending JLWOP for non-homicide offenses), the Court held that "officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult." As can happen with even Supreme Court decisions, no action in the North Carolina courts has yet to be taken, as JDB is no longer a juvenile and perhaps feels no great incentive to pursue the matter.

I've been thinking of all of this of late, as I learned from Josh Tepfer and Steve Drizin of Northwestern Law's Center on Wrongful Convictions of Youth (CWCY) about several recent instances of interrogations of teenagers in Tennessee and elsewhere in which confessions were given in homicide cases only after the police made extreme threats, including promises that the suspect would face the death penalty if he didn't confess (a legal impossibility given Roper) or that the suspect would be raped in prison on a daily basis if he didn't confess.  The cases have been resolved in a variety of ways; in two matters the motions to suppress were supported by strong amicus briefs from CWCY, which led to favorable plea deals for the juveniles; in the case of 17-year-old Codey Miller, the confession was suppressed by the judge who called the interrogation practices of the police "mind-boggling"; in the case of 14-year-old Jonathan Ray, the confession was also suppressed, though the case has not yet been resolved; in the case of 19-year-old Carlos Campbell, the motion to suppress the confession was denied and it's unclear whether there will be an appeal; and in a recent decision by the Kentucky Supreme Court, the conviction of 17-year-old Garrett Dye was reversed and a new trial ordered after holding that his confession was involuntary.  

Because the fact patterns in these cases are clearly different than JDB, as the parties agreed that police questioning was custodial and Miranda warnings were given, the legal issues raised are also somewhat different (Was the Miranda waiver involuntary?  Was the right to counsel invoked?  Was the confession coered?), but the critical questions remain the same:  should the rules that apply to the questioning of juveniles, and the standards by which courts review interrogations of kids, be different than those for adult suspects?  If so, what should be different?  The principle reform has been mandatory recording (either audio or video) of the interrogations of suspects, whether juveniles or adults, something that has been successfully adopted in 17 states and Washington, D.C., either by legislatures or courts.  Mandating that juveniles be given counsel prior to custodial interrogation is a proposal that has yet to gain much traction (likely for pragmatic as well as philosophical reasons), with states preferring to provide "parental notification" before police can question youth, which rarely helps as most parents are as unfamiliar with how best to handle these situations as their children.  Given that most police officers receive fewer than 10 hours of juvenile interview and interrogation training over their entire careers, another proposal is that law enforcement should be regularly trained consistent with the best practices established by the International Association of Chiefs of Police and be directed not to use aggressive or deceptive strategies when questioning minors.  

Your thoughts?  Please share in the comments. 


Posted by Tamar Birckhead on July 4, 2013 at 01:55 PM in Constitutional thoughts, Criminal Law, Current Affairs | Permalink


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I'll certainly share a draft when it's ready. Your cynical response is the right one (it's the same reaction my LAPD relatives had to the idea). But maybe a world with such a void-the-waiver rule would give JDB some real bite. If age matters for determining custody, then far more juveniles should now be considered in custody than were previously, making it harder for police to secure a non-custodial confession. At the least, if the nature of the encounter changes such that cops are affirmatively saying to the juvenile "FYI, you are free to leave if you want", that would be a significant change because they are decidedly not telling people that now. But I find it hard to imagine that they'd choose that route.

Posted by: Kevin Lapp | Jul 7, 2013 12:12:13 AM

Thanks for this article. As a magistrate in a juvenile court I know the need for much greater debate about this issue.

Posted by: Katie Lenski | Jul 6, 2013 10:02:24 PM

How about not allowing juvenile suspects to be questioned without their parents and an attorney present if the juvenile is suspected of any crime that they could be charged as an adult for?

Posted by: Trucker Mark | Jul 5, 2013 6:49:42 PM

Kevin: Thanks for commenting. Interesting idea on allowing juveniles to void the Miranda waiver made during custodial interrogation; I'd like to see the draft of your article when it's ready. My cynical thought, however, is that police will then focusing on eliciting "non-custodial" confessions by questioning kids in settings where it's hard for the defense to show they didn't feel free to leave (and where the police will be certain to "tell" them they CAN leave if they want), and then using those confessions in court. I'm just not convinced that the police will fundamentally change their tactics based on outside forces/laws/legislation alone. I tend to agree instead that the key is changing the culture/attitude of law enforcement itself so that the impetus (more reliable leads, fewer false confessions, less contentious litigation) comes directly from them. This will undoubtedly take longer to accomplish but it may have more of a lasting impact.

In any event, I'm excited that you're exploring these issues and hope you take advantage of Josh's offer to share information, as he and Steve are grappling with all of this on the ground and can provide a helpful perspective.

Thanks again.

Posted by: Tamar Birckhead | Jul 5, 2013 12:35:25 PM

Please contact me directly -- [email protected] or 312-503-6298 -- if you feel the CWCY can be helpful in any of your cases or projects. You should also note that I have an article soon to be published in the Champion Magazine focused on defending juvenile confession issues that relates to many of the issues discussed by Tamar and in these comments. I can send you the article if you contact me. It is finished but the publication of the issue has been delayed.

Posted by: Josh Tepfer | Jul 5, 2013 11:49:08 AM

I am working on a project that explores this solution to the juvenile interrogation issue: allow juveniles to retract a 5th amendment waiver and thus make any confession secured during custodial interrogation inadmissible against them.

The basis for this? I'm still working on that. There are bits from all over the law that protect children from their own vulnerability and the consequences of their actions. For example, we allow children to enter into lawful contracts and then void them at will. The justification for that rule can overlap with the justification for a rule that allows children to void a waiver of their constitutional rights made during custodial interrogation. There's plenty evidence that shows that juveniles do not know/understand/appreciate what it is they were doing when they waived their 5th amendment rights, even if they say out loud that they do. When they later come to truly know/understand/appreciate it (outside the custodial interrogation setting; and after consultation with a non-adversarial adult/lawyer), then they should be allowed to void that waiver.

This avoids the expensive problem of providing counsel at interrogation, and makes the challenge of coming up with a workable Miranda form/recitation/ritual for juveniles unnecessary.

The prosecution would still be able to use at trial any statements made by the juvenile in a non-custodial setting, and the police would still be able to benefit from any investigatory leads and evidence that resulted from the interrogation. But the incentive to recite Miranda (to ensure admissibility) but nevertheless threaten/coerce/promise to get the confession would be greatly diminished because the payoff (an admissible statement) would not be there.

And such a rule might limit the number of juvenile proceedings that are self-hangings based on uncertain eyewitness testimony from a single witness and a factually complete confession from the juvenile (which, in my experience as a juvenile defender, too many of the cases were).

Posted by: Kevin Lapp | Jul 4, 2013 9:59:17 PM

Mike and Drew: Thanks so much for commenting. There is excellent research confirming the problems with the text of the typical Miranda warning given to children. For instance, a paper entitled, "Juvenile Miranda Warnings: Perfunctory Rituals or Procedural Safeguards?" was published by Dr. Richard Rogers et al. in the March 2012 issue of Criminal Justice and Behavior and available here: http://cjb.sagepub.com/content/39/3/229.

Here is the abstract:

"The American Bar Association, via its newly adopted policy, seeks fundamental changes in procedural justice with respect to juvenile Miranda warnings. It calls for understandable Miranda warnings to educate youth in custody regarding the relevant Constitutional protections. In surveying prosecutors and public defenders, the authors collected 293 juvenile Miranda warnings that are intended specifically for youthful offenders. Length and reading levels were analyzed and compared to an earlier survey. Nearly two thirds (64.9%) of these warnings were very long (> 175 words), which hinders Miranda comprehension. In addition, most juvenile warnings (91.6%) require reading comprehension higher than a 6th-grade level; 5.2% exceed a 12th-grade reading level. Combining across two surveys, more than half of juvenile Miranda warnings are highly problematic because of excessive lengths or difficult reading comprehension. However, simple and easily read Miranda components were identified that could be used to improve juvenile advisements. Breaking new ground, Miranda waivers were examined for both juveniles and their parents/interested adults. Interestingly, most juvenile versions emphasized waivers in positive terms (e.g., “an opportunity”) and downplayed the potential for negative consequences."

In fact, in the IACP guide for effective interviewing that I reference in the post itself, there are some excellent worksheets for police investigators to use in assessing competency as well as sample language to use with children, ensuring, for example, that the juvenile understands the following words in the context of Miranda: silent, court, lawyer, appointed, and judge.

Here's an excerpt from one of the model Miranda Warning forms:

"Fill in the juvenile’s response to your questions verbatim.
1. You have the right to remain silent. That means you do not have to say anything. Do you understand this? __________________________________
Juvenile’s Initials__________
2. Anything you say can be used against you in court.
Do you understand this? __________________________________ Juvenile’s Initials__________
3. You have the right to get help from a lawyer right now.
Do you understand this? __________________________________ Juvenile’s Initials__________
4. If you cannot pay a lawyer, we will get you one here for free.
Do you understand this? __________________________________ Juvenile’s Initials__________
5. You have the right to stop this interview at any time.
Do you understand this? __________________________________ Juvenile’s Initials__________
6. Do you want to talk to me?
Do you understand this? __________________________________ Juvenile’s Initials__________
7. Do you want to have a lawyer with you while you talk to me?
Do you understand this? __________________________________ Juvenile’s Initials__________
I have read the above statement of my rights and they have been read aloud to me. I understand what my rights are and I know what I am doing. I agree to answer questions. I do not want a lawyer at this time. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me."

Detailed guidelines are also provided for the interview itself. Of course, this is no replacement for having an attorney appointed to advise the youth, but it's a step in the right direction, as you both recognize. It's no surprise, then, that Steve Drizin and Josh Tepfer of CWCY played a large role in developing and writing the text of the IACP manual.

Thanks again for joining the conversation.

Posted by: Tamar Birckhead | Jul 4, 2013 7:04:58 PM

I have similar concerns. Here in Charlotte, the Miranda waiver used during custodial interrogations of children is nearly identical to that used for adults, except for an additional paragraph informing the child that she can have her parent present if she wants. It's amazing how quickly the police officers read this waiver to the children they're interrogating. Further, I doubt that many of the children understand the words used in the waiver, and I also doubt that they could even read the waiver if they were given time to.

I'm in favor of automatic appointment of attorneys for children who undergo custodial interrogation, but as you suggest, that seems impractical at this point. I wonder if a better Miranda waiver form could be written, though - using simplistic language that more children are able to understand. It'd be great if there could be psychological research testing the efficacy of the new waiver, too. Of course, I'd also like that waiver to make it very clear in very simple language that the decision to talk to the police is a choice.

I'd also like to require that children read aloud the waiver form. I realize that a child may be illiterate and yet still understand what her rights are, but those children would seem to be outliers.

Apologies if any of these ideas have been offered by scholars in published papers.

Posted by: Drew Kukorowski | Jul 4, 2013 5:19:56 PM

I've been thinking about similar issues lately as I prepared to cross examine a child protective services (CPS) worker about her questioning of my clients' children at their schools. The "investigator" testified that she routinely interviews children at school because "they feel safer there". School District policies in Massachusetts typically state that interviews of students for matters other than school matters should not be allowed except by court order or with written authorization from the student and parent or guardian.

Nonetheless, school administrators think they have to let CPS and police question their students at school without a court order, without parental authorization (or even notification) and without benefit of Miranda warnings. With the recent SCOTUS decision that remaining silent without specifically invoking Miranda can be held against you and since CPS interrogations are not even subject to an exclusionary rule when wrongfully conducted, the likelihood of young people successfully invoking their right to remain silent without counsel is increasingly slim.

As you point out, even "parental notification .. rarely helps as most parents are as unfamiliar with how best to handle these situations as their children". A combination of parent, police and youth education is needed along with reinforcement at the time of questioning by detailed written explanations in the parent's and youth's languages. The explanations should be required to be provided to them on camera. They should be read on camera. They should be read to them on camera. The explanation should include detailed Miranda-like warnings regardless of the custodial or non-custodial nature of the questioning. They should be told that they should consult with counsel of their choice (assuming pre-interrogation court-appointed counsel does not gain "traction") before giving up these important rights and submitting to questioning.

Posted by: Mike Rich | Jul 4, 2013 3:07:12 PM

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