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Thursday, December 08, 2016

A Bargaining Zone for Miranda Waivers

There has been a lot of action recently in the world of juvenile confessions. Some of it has garnered nation-wide attention, like Brendan Dassey, the 16 year-old from the Netflix documentary series Making a Murderer, who is currently trying to convince a judge to release him after a federal appeals court (finally) found his confession to murder to have been coerced and involuntary. Less newsworthy, but just as important, the U.S. Supreme Court refused to review a decision upholding as knowing, intelligent and voluntary a Miranda waiver by an abused and developmentally-delayed 10 year-old. In California, Governor Brown vetoed legislation that would have required counsel for those under 18 before custodial interrogation could begin.

Each of these developments occurred days or weeks after I submitted a paper that explores the state of the law regarding Miranda waivers by juveniles. Where others have convincingly argued that juveniles need (and perhaps the constitution demands) counsel before they can validly waive the 5th Amendment privilege against self-incrimination, my paper considers whether interrogation law should incorporate a rule akin to contract law’s infancy doctrine and permit individuals to retract uncounseled Miranda waivers.

This exploration of contract law's relevance to criminal procedure has me considering whether there is a bargaining zone for Miranda waivers.

The centuries-old infancy doctrine in contract law is based on the presumption that unequal bargaining power always exists between juveniles and adults, with the power, and therefore, the potential for overreaching, inuring to the adult. The infancy doctrine allows minors to void a contract at any time before reaching majority or within a reasonable time afterwards. This enables young people to escape agreements that they may not have fully understood or that were ill-advised. The doctrine exists, as one court put it, to protect minors from “foolishly squandering their wealth through improvident contracts with crafty adults who would take advantage of them." 

My paper argues that interrogation law should similarly permit individuals to retract uncounseled Miranda waivers elicited by law enforcement while they were juveniles, and thus make the custodial confession inadmissible at trial. When I presented the paper recently at the UCLA School of Law, Professor Russell Korobkin posed a contract-law-themed challenge to me: he asked if there is a bargaining zone for Miranda waivers where both law enforcement and the juvenile suspect benefit from the waiver AND where the juvenile suspect would not later choose to retract that waiver. If there is not (that is, if every juvenile suspect would take advantage of my proposed rule and retract a Miranda waiver), he suggested that the better rule would be to forbid Miranda waivers by youth entirely.

My first reaction was that the autonomy interests preserved by a retractable waiver rule (compared to a ban on waivers by youth) provided a justification for the rule even if all juvenile would retract their waivers. But it seems to me that there is a bargaining zone for Miranda waivers, whereby juvenile suspects gain something for their waiver. In less serious cases, a waiver and subsequent statement can result in the juvenile getting to leave the station house and go home. Even when a prosecution follows, that (often illusory, but sometimes real) benefit provides a reason to allow juveniles to waive their constitutional rights. Moreover, some of these juveniles might not later retract their waiver. For example, a suspect who makes incriminating statements but also explains that his participation was the result of duress, or who explains his minimal involvement, might very well wish to use that statement at trial. Therefore, there are situations where law enforcement and the juvenile suspect benefit from a waiver, and where the juvenile suspect would not retract that waiver and prevent the statement's admission at trial.

That said, I am not a contract law scholar. Nor do I often think about a law, and its value, by identifying bargaining zones or imagining its impact on rational actors who base their decisions on costs and benefits. As such, I am not sure that I have adequately responded to Professor Korobkin's challenge. If anyone has further thoughts, I'm all ears.


Posted by Kevin Lapp on December 8, 2016 at 02:06 AM | Permalink



that's right, though the fruits of statements that are involuntary under the due process clause are not admissible (the involuntariness of statements by juveniles, which was the basis for the federal court's decision on Brendan Dassey's confession, is a topic of a future paper; I chose to keep this one to Miranda). And I think it is a reason to favor retractable waivers over a "no-interrogations rule," by which I take you to mean a rule banning Miranda waivers by youth. I think it's also an advantage of retractable waivers over a rule requiring counsel at interrogation at youth (again putting due process aside), which many would consider to functionally be a no-interrogation rule as well.

Posted by: Kevin Lapp | Dec 8, 2016 11:30:29 AM

One difference would be that Miranda remedies can be fairly narrow. For example, physical fruits obtained in violation of Miranda rules are still admissible. Assuming your rule would borrow Miranda remedies, the government would conduct more interrogations and still be able to use more evidence than under a no-interrogations rule. (I'll leave aside the question of whether either rule is normatively desirable; I take your question to be more on what are the practical differences between them.)

Posted by: Orin Kerr | Dec 8, 2016 8:27:18 AM

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