Slippery slopes
If you're appealing a case, there are two questions you don't want to hear a judge asking you in oral argument: whether if the court rules in your favor, it'll be opening "the floodgates of litigation," or it will be setting up a "slippery slope."
Wednesday's argument in the Supreme Court in J.D.B. v. North Carolina featured the latter.
Police in Chapel Hill had suspicions that J.D.B. and two other boys had been involved in a burglary of a house, so a police investigator went to the school where the 13-year-old boy was attending special education classes in the 7th grade. The boy was taken out of class by a police officer and brought to a conference room where the investigator, the principal, and the principal's administrative intern were waiting. The door was closed, and during an interrogation that lasted 30 to 45 minutes, the boy made several incriminating statements, and a written one as well.
J.D.B. appealed his resulting juvenile delinquency adjudication, claiming he should have been advised of his Miranda rights. The North Carolina courts ruled that his interrogation wasn't custodial, and the issue presented to the Supreme Court on Monday was whether the boy's age should have been considered as a factor in determining that issue.
A person's age, as well as other characteristics such as intelligence and prior experience with the judicial system, have always been considered in determining whether a Miranda waiver was valid, or whether a confession was voluntary. Whether a suspect is in custody, however, is determined objectively: whether a reasonable person in the suspect's position would believe that he was free to leave. The Court's forays into the question of whether a suspects's tender years is disregarded in this calculus has been very limited. The key case is Yarborough v. Alvarado, where the police interrogated a 17-year-old about a shooting. The California courts held the interrogation wasn't custodial, but the 9th Circuit ultimately granted habeas relief, holding that Alvarado's age and inexperience with the justice system was so substantial that it turned the interview into a custodial one. The Court reversed, with language reaffirming that the test is objective. Yarborough was a habeas case, though, where the key question was whether the state court's holding was unreasonable in light of "clearly established Federal law"; given the dearth of decisions on the subject, the state was guaranteed to win that one.
But J.D.B. presents the issue on direct appeal, and his lawyer had gotten two paragraphs into his oral argument before Scalia interrupted and posed the question he believed was predominant:
I'm not clear on what you are proposing. Is there to be one different Miranda requirement rule for all minors, or is there to be one for, what, 20-year-olds, 19-year-olds, 18-year-olds, 17, 16? This one is 13, do we calibrate it that finely?
Scalia later posed the question of what to do about mental deficiencies, and suggested the real problem: the inquiry of whether a person was in custody was being turned from an objective one into a subjective one: "whether the particular individual regarded him or herself as being in custody."
The Court's conservative bloc echoed that concern. Alito suggested the problems this might pose for trial judges:
When you take a particular set of circumstances, and the judge would say, if I were 13, I would not understand that I could go. However, if I were 15, I would understand I could go. Can you slice it like that?
The liberal bloc was having none of it, though. Breyer postulated the hypothetical that above the interrogation room was a big sign saying, "You are free to leave whenever you want," and got the North Carolina attorney to agree that, in determining whether a suspect felt free to leave in that situation, a court could take into consideration the fact that the suspect spoke only Spanish. Why should age be different?
That left Kennedy in the middle, and he made inquiries of both attorneys, but without giving much clue as to how he was leaning. At one point he suggested that what the North Carolina attorney was arguing was that a judge should consider what a 25-year-old sitting at a 7th grader's desk would think, but that's as close as he got to indicating support for J.D.B.'s position.
So how's it going to come out? Hard to say, and I'm not sure the argument that age shouldn't be a factor makes much sense. There's some merit to the concern that adoption of age as a consideration would force the police to guess whether they were dealing with a 15-year-old or a 17-year-old, but that was hardly the situation here; as Kagan pointed out, the investigator knew exactly who he was going to be dealing with when he drove out to the school. There doesn't seem to be much logic in holding that age can be used as part of the "totality of circumstances" in determining whether the suspect waived of Miranda rights or the voluntariness of his confession, but not in determining whether he believed he was in custody.
And there was a bit of an air of unreality to the whole debate, too. In a case involving interrogation of a student at a school in a system of compulsory education, what exactly does "freedom to leave" mean? As Roberts pointed out, what if the 13-year-old is told he is free to leave by the police officer, but with his principal sitting there, figures that he may get in trouble if he leaves?
That plays into one of the problems I have with all this: I'm not sure how meaningful it would be if age were adopted as a factor, with the effect that juveniles were more frequently advised of their Miranda rights. J.D.B.'s brief contained extensive references to the literature on police interrogation, and officers are given special training in questioning juveniles, with key emphasis on the fact that juveniles tend to be much submissive to authority. As I mentioned in this post a while back, a substantial majority of adult suspects readily waive their Miranda rights. If telling a 30-year-old who's been through the justice system several times that he has a right to remain silent doesn't shut him up, I'm not too sanguine about the likelihood that it will have a different effect on a 15-year-old kid.
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