Age of Intimidation: Why the Supreme Court Got it
Right in J.D.B. v. North Carolina
John M.P. Wesley*
ABSTRACT
In June of 2011, in a groundbreaking case for Juvenile Justice, the
Supreme Court, five-to-four, held that age must be considered in the
custody determination for police questioning of children. The Court
concluded that the age of a juvenile properly informs the Miranda warning
analysis since children are more easily intimidated by authority and would
feel obligated to submit to police when an adult in similar circumstances
would feel free to leave. The facts of the case are compelling and involve
the un-Mirandized questioning of a thirteen-year-old boy, pulled out of his
seventh grade classroom by police.
This Comment argues that the majority opinion here was correct and
long overdue. This change will not burden police or dramatically alter the
traditional custody test, as the four-vote dissent argues. The author
analyzed the persuasive Amici briefs filed on both sides of the dispute in
reaching his conclusion. Justice Sotomayor, writing for the majority, held
that the legal distinction between children and adults is well defined in
Supreme Court jurisprudence and should be equally defined in the Miranda
analysis. This age distinction has been cemented by law regarding consent
to marry, property ownership, and the consideration of age in the tort
"reasonable person" standard; the cognitive, physiological, and
psychological differences between children and adults are equally
confirmed by scientific study.
* Juris Doctor, cum laude, New England Law I Boston (2012). Member of the New York
Bar. B.A., English, Wesleyan University (2006). I would like to thank Julie Peterson and
Jack Wesley for their unyielding support and encouragement. I would also like to thank Liza
Cantor for being there for me at all times, without her you would not be reading this. This
article is dedicated to the children of Roxbury, Massachusetts, and Brattleboro, Vermont.
CRIMINAL AND CIVIL CONFINEMENT
Vol. 39:269
I. INTRODUCTION
On June 16, 2011, the Supreme Court of the United States decided
J.D.B. v. North Carolina,holding that a child's age "properly informs" the
custody analysis for Miranda purposes. 1 This adds a new element to the
traditional analysis2 used by police when determining whether a suspect3
should be read his or her Miranda rights preceding custodial interrogation.
Justice Sotomayor, writing for the five-vote majority, explained, "[i]t is
beyond dispute that children will often feel bound to submit to police
questioning
when an adult in the same circumstances would feel free to
4
leave."
The petitioner J.D.B. was a thirteen-year-old boy in seventh grade.5 He
was removed from his social studies class by a police officer in uniform
and brought to a "closed-door conference room" where he was questioned
by police about break-ins at homes in the area for thirty to forty-five
minutes. 6 J.D.B. was questioned in the presence of two police officers, an
administrative intern, and the assistant principal.7 At no time did the
officers inform the boy of his Miranda rights, or his freedom to leave the
room and stop the questioning, nor did they give him a chance to contact
his legal guardian. 8 The boy initially denied police allegations that he stole
items from certain houses, but after continued pressure from the officers
and the administrators, and threats of juvenile detention from one officer,
J.D.B. confessed to the break-ins. 9 Only after hearing this confession did
the police inform J.D.B. that he could refuse to answer any questions and
10
leave at any time.
J.D.B. was charged with larceny, and breaking and entering.'1 His
motion to suppress was denied, the trial court judge finding that J.D.B. was
not in custody during the police questioning and that his statements were
1.
J.D.B. v. North Carolina, 131 S. Ct. 2394, 2399 (2011).
2. The custody test requires an objective analysis which considers the circumstances
surrounding the interrogation and whether a reasonable person would have felt he or she
was free to leave or end the questioning. Thompson v. Keohane, 516 U.S. 99, 112 (1995).
"A formal arrest or equivalent restraint on freedom of movement" establishes police
custody. Id.(internal quotations marks omitted).
3. Miranda v. Arizona, 384 U.S. 436, 445-58 (1966).
4.
J.D.B., 131 S. Ct. at 2398-99.
5. Id. at 2399.
6.
Id.
7.
8.
Id.
Id.
9.
10.
Id.at 2399-2400.
Id.at 2400.
11.
Id.
2013
AGE OFINTIMIDATION
voluntary. 12 The North Carolina Court of Appeals affirmed the trial court's
adjudication finding J.D.B. delinquent. 13 The state's highest court "held,
over two dissents, that J.D.B. was not in custody when he confessed" and
14
did not give consideration to age in the Mirandacustody analysis.
The Supreme Court of the United States ruled in favor of J.D.B., holding
that courts should "tak[e] account of all of the relevant circumstances of the
interrogation, including [the defendant's] age at the time," when certain
criteria are met.1 5 While the Supreme Court's holding in J.D.B. alters the
custody analysis under Miranda, it does not compromise the inherent
objective nature of the test, nor does it make it more difficult or confusing
for police to apply. Despite complaints from the dissent that the
consideration of a juvenile's age will destroy the "one-size-fits-all
reasonable-person test" and undermine the "clarity and precision" of the
Miranda analysis for whether a suspect is in custody, the majority's
holding maintains the relative simplicity of the custody analysis while
staying true to the objective test. The holding merely acknowledges the
commonsense reality, already enshrined in case law and legislation, that
children are vastly different than adults and cannot be treated as "miniature
adults" through use of a custody analysis which uses a distinctly adult
17
standard.
The Court and the amici in support of J.D.B. were correct that age
should be evaluated in making a determination of whether a juvenile
suspect is in police custody; this will not burden police or dramatically
change the traditional objective custody test. Part II of this Case Comment
provides a brief overview of Miranda and the relevant cases establishing
the custody analysis. Part III discusses the Supreme Court's treatment of
age distinctions in its jurisprudence and references to scientific evidence of
youth vulnerability compared to adults. Part IV describes the rationale of
J.D.B. v. North Carolina and its dissent. Part V analyzes the amici curiae
briefs in support of Respondent North Carolina. Part VI analyzes the amici
curiae briefs in support of Petitioner J.D.B. Finally, Part VII explains why
amici in support of J.D.B. are correct and ultimately guide the Court's
decision.
12.
13.
14.
Id.
Id.
Id.
15.
Id. at 2408. "So long as the child's age was known to the officer at the time of the
interview, or would have been objectively apparent to any reasonable officer," none of the
traditional concerns of police speculation would be compromised. Id. at 2404.
16.
17.
Id. at 2409, 2413-14 (Alito, J., dissenting).
See id. at 2404 (citing Eddings v. Oklahoma, 455 U.S. 104, 115 (1982)).
CRIMINAL AND CIVIL CONFINEMENT
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II. THE CUSTODY ANALYSIS UNDER MIRANDA AND ITS PROGENY
The Miranda Court held in 1966 that the privilege against selfincrimination embodied in the Fifth Amendment applies during custodial
interrogation. 18 Acknowledging the "inherently coercive nature of custodial
interrogation,"' 19 the Miranda Court authored protections to safeguard
suspects in custody from police violation of their rights. 20 Before custodial
police interrogation, the suspect must be warned of his or her "right to
remain silent," that any statements made could be used against him or her,
and that he or she has the right to "retained or appointed" counsel.2 '
Later Supreme Court decisions established that the warnings required
under Miranda are mandatory where there has been a restriction on the
suspect's freedom so as to render him or her "in custody. 22 The analysis
for determining whether a suspect is in custody involves a two-step
objective test. The first step of this objective test is to consider all the
"circumstances surrounding the interrogation." 23 The second step is to
have
inquire whether under the circumstances "a reasonable person would
24
leave."
and
interrogation
the
terminate
to
liberty
at
was
she
or
felt he
All of the circumstances of the interrogation must be considered to
determine custody, including any circumstance "that 'would have affected
how a reasonable person' in the suspect's position 'would perceive his or
her freedom to leave."' 25 However, the subjective views of both the
interrogating police officers and the suspect are not to be considered.2 6 The
27
objective custody test is meant to give "clear guidance to the police."
Through this objective analysis, police have an established framework to
determine when to give Miranda warnings to suspects being questioned.28
The objective analysis is meant to avoid the difficult task of police officers
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
18.
19. JD.B., 131 S. Ct. at 2401 (discussing Miranda,384 U.S. 436).
20.
Miranda,384 U.S. at 444.
21.
Id.
22.
See Stansbury v. California, 511 U.S. 318, 322 (1994) (internal quotation marks
omitted) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)).
Thompson v. Keohane, 516 U.S. 99,112 (1995).
23.
Id.
24.
25.
J.D.B. v. North Carolina, 131 S. Ct. 2394, 2402 (2011) (quoting Stansbury, 511
U.S. at 325).
26.
27.
Id. (citing Stansbury, 511 U.S. at 323).
See Yarborough v. Alvarado, 541 U.S. 652, 668 (2004).
28.
See id.
2013
A GE OF INTIMIDATION
attempting to 2 interpret
the internalized psychological "idiosyncrasies" of
9
every suspect.
III. DISTINCTIONS BETWEEN CHILDREN AND ADULTS IN SUPREME COURT
JURISPRUDENCE, LAWS, AND MODERN SCIENTIFIC STUDIES
As the majority opinion in J.D.B. v. North Carolina emphasized, the
Supreme Court has repeatedly distinguished between children and adults in
many different areas of the law throughout the Court's history:
"Addressing the specific context of police interrogation, we have observed
that events that 'would leave a man cold and unimpressed can overawe and
overwhelm a lad in his early teens."' 30 Beyond the Court's own treatment
of children as separate from adults, there are general legal limitations
placed on children through laws across the nationL. Children are limited in
"their ability to alienate property, enter a binding contract enforceable
against them, and marry without parental consent." 32 Children are also
treated differently under common law, where the youth of a child is
considered in applying the "reasonable person" standard in tort cases when
determining whether negligence exists. 33 Two recent cases from the
34
Supreme Court's Eighth Amendment jurisprudence, Roper v. Simmons
35
and Graham v. Florida,
clearly illustrate the profound differences
between children and adults and support the notion that children deserve
36
unique treatment under the law.
A.
Distinctions of Age in Roper v. Simmons
In Roper v. Simmons, the Supreme Court held that imposing the death
sentence on an offender who committed his or her crime while under the
age of eighteen is unconstitutional under the Eighth and Fourteenth
Amendments. 37 This case involved then seventeen-year-old Christopher
Simmons, a high school junior in Missouri who planned and executed the
murder of Shirley Crook.38 In analyzing proportionality of crime to
punishment, Justice Kennedy, writing for the majority in Roper,
29.
(1984)).
30.
31.
32.
33.
34.
J.D.B., 131 S. Ct. at 2402 (citing Berkemer v. McCarty, 468 U.S. 420, 430-31
Id. at 2403 (quoting Haley v. Ohio, 332 U.S. 596, 599 (1948)).
Id.
Id.
37.
Id. at 2404.
Roper v. Simmons, 543 U.S. 551 (2005).
Graham v. Florida, 130 S. Ct. 2011 (2010).
See generally Roper, 543 U.S. 551; Graham, 130 S. Ct. 2011.
See Roper, 543 U.S. at 578-79.
38.
Id. at 556-57.
35.
36.
CRIMINAL AND CIVIL CONFINEMENT
Vol. 39:269
emphasized that juvenile offenders are inherently less culpable than adults
because of their developmental immaturity. 39 Kennedy pointed to three
general differences between juveniles under eighteen and adult offenders:
(1) parents, as well as sociological and scientific studies, confirm that a
"lack of maturity," "underdeveloped sense of responsibility" and
heightened "reckless behavior" are found in youth more than in adulthood;
(2) juveniles are "more vulnerable... to negative influences and outside
pressures," including peer pressure, and the young are "most susceptible to
influence and to psychological damage"; and (3) the character of a juvenile
is "not as well formed as that of an adult" and is "more transitory, less
fixed. 40 Kennedy further illustrated this distinction by pointing out that
juveniles are denied many of the legal privileges and benefits of adults
purely because of their age: "In recognition of the comparative immaturity
and irresponsibility of juveniles, almost every State prohibits those under
18 years of
age from voting, serving on juries, or marrying without parental
41
consent."
Roper has been used by some legal scholars to question and criticize the
use of adult interrogation techniques by police on juvenile suspects,
arguing for unique treatment of juveniles subjected to police
interrogation. 42 Roper can be used to support the assertion that child and
adolescent suspects are more vulnerable in life generally, making them
more susceptible to interrogation by authority figures than their adult
counterparts because of their developmental status.43 Juveniles are
"suggestible" and "impulsive," making them more easily manipulated by
police.44 This heightened suggestibility promotes bias against juvenile
suspects, encouraging a presumption by police that the youth suspect is
guilty right away.
Juvenile vulnerability to police interrogation
techniques deserves procedural protection for suspects being questioned,
especially since such protection is offered for child victims and child
witnesses:
Extrapolating the holding and bases of Roper v. Simmons to the area of
juvenile interrogation crystallizes the ways in which juvenile suspects
39.
Id.at 569-70 (citations omitted).
40.
41.
42.
Id. (citations omitted).
Id.
at 569 (citations omitted).
See generally Tamar R. Birckhead, The Age of the Child: InterrogatingJuveniles
After Roper v. Simmons, 65 WASH. & LEE L. REV. 385 (2008) (exploring the cognitive and
social differences between children and adults brought to light in Roper in the context of
police interrogation ofjuvenile suspects).
43.
See id.
at 420-21 (citing Roper, 543 U.S. at 568-70, 572).
44.
Id.at 419-20.
45.
Id.
2013
A GE OF INTIMIDATION
are particularly vulnerable to the implicit biases and standard
questioning techniques of police investigators. The conundrum is that
while the criminal justice system has not, as of yet, acknowledged or
directed its attention to what is known about the suggestibility of
juvenile suspects during questioning, extensive reforms and procedural
safeguards have been developed to reduce the likelihood that unreliable
or inaccurate information will be elicited from young victims and
witnesses of crimes ....
Law enforcement officers often receive
specialized training in child development, child psychology, and the
sociology of the family in preparation for interviewing child victims and
witnesses, and they are taught to avoid suggestive or leading
to limit the total number of interviews conducted with
questioning and
46
any one child.
B.
Distinctions of Age in Graham v. Florida
Graham v. Florida extended the argument that juveniles are inherently
more vulnerable and less culpable than adult offenders, holding that an
offender may not be sentenced to life imprisonment without the possibility
of parole for a non-homicide offense committed before the age of
eighteen. 47 This bolsters the notion presented in Roper that juvenile
than adult offenders and thus
offenders are less developmentally functional
48
less culpable for their criminal activity.
In Graham, Justice Kennedy, again writing for the majority (joined by
Justices Stevens, Ginsburg, Breyer, and Sotomayor), pointed out the
developmental differences between children and adults. 49 He emphasized
that "because juveniles have lessened culpability they are less deserving of
the most severe punishments." 50 This lessened culpability derives from
51
immaturity, lack of responsibility, and vulnerability to bad influences.
Justice Kennedy explained the developmental differences between
adolescents and adults, confirmed by scientific studies: "As petitioner's
amici point out, developments in psychology and brain science continue to
show fundamental differences between juvenile and adult minds. For
involved in behavior control continue to mature
example, parts of the brain
' 52
through late adolescence.
As evidenced in Roper and Graham, children cannot be treated the same
46.
47.
48.
49.
50.
51.
52.
Id. at 420-2 1.
Graham v. Florida, 130 S. Ct. 2011, 2033-34 (2010).
See Roper, 543 U.S. at 569-70.
Graham, 130 S. Ct. at 2026 (citations omitted).
Id. (citing Roper, 543 U.S. at 569).
Id.
Id. (citations omitted).
CRIMINAL AND CIVIL CONFINEMENT
Vol. 39:269
as adults in the criminal justice system for a variety of reasons. Lessened
culpability, potential for rehabilitation, inferior cognitive development, and
vulnerability to external pressure from authority all contribute to the
reasoning for special treatment for juveniles in the system. This general
juvenile vulnerability merits unique treatment of juveniles during police
interrogation as well as criminal sentencing. For these reasons, Roper and
Graham are instructive in framing the important distinction between adults
and juveniles long recognized in case law and statutes, and rearticulated in
J.D.B. v. North Carolina through an addition to the Miranda custody
53
analysis.
IV. THE REASONING OF THE COURT IN J.D.B. V. NORTH CAROLINA
The majority in J.D.B. v. North Carolina held that the inclusion of an
evaluation of a child's age in the "custody analysis is consistent with the
objective nature of that test." 54 Dismissing the argument from the State that
age has an internal impact on the perception of whether a suspect is in
custody and thus is a subjective characteristic, the Court emphasized that "a
child's age, when known or apparent, is hardly an obscure factor to
assess." 55 The majority similarly rebuffed the State's argument that the
consideration of age in the custody test will undermine the clarity of the
Miranda analysis and the clear framework it offers to police during the
questioning of a suspect: "Just as police officers are competent to account
for other objective circumstances[,] ...
so too are they competent to
56
evaluate the effect of relative age."
The dissent by Justice Alito, joined by Chief Justice Roberts and Justices
Scalia and Thomas, decried the Court's "extreme makeover of Miranda,"
focusing on the need for retaining the clarity and simplicity of the custody
analysis and arguing that minors are already protected from coercive
interrogation by "the constitutional voluntariness standard" anchored in the
Due Process Clause of the Fifth and Fourteenth Amendments. 57 Alito
mourned the altering of the custody analysis: "Today's decision shifts the
Miranda custody determination from a one-size-fits-all reasonable-person
test into an inquiry that must account for at least one individualized
characteristic .
. . ."58
Alito and the dissent found the consideration of age
to be an arbitrary inclusion of a personal characteristic, while other
characteristics, such as intelligence, education, experience with police, and
53.
54.
See J.D.B. v. North Carolina, 131 S. Ct. 2394, 2399 (2011).
Id. at 2406 (citation omitted).
55.
56.
57.
58.
Id. at 2407.
Id.
Id. at 2409-10 (Alito, J., dissenting).
Id. at 2409.
AGE OFINTIMIDATION
2013
occupation are ignored in the custody analysis. 59 The dissent viewed the
addition of age to the analysis as a "complicating factor into what had been
60
a clear, easily applied prophylactic rule."
V. AMICI BRIEFS IN SUPPORT OF NORTH CAROLINA
The amici curiae briefs filed in this case are important because they
represent the views of large stakeholders. On the one hand, there are the
stakeholders that favor strong law enforcement and easier access to
information for successfully prosecuting criminal activity. 61 This interest
is represented through the amici briefs in support of the respondent, North
Carolina, from parties such as the National District Attorneys Association,
the United States itself, and many individual states wishing to retain the
traditional Miranda custody test and not alter it. 62 On the other hand, there
are the stakeholders that favor robust juvenile rights and special procedural
safeguards for children, believing children to be fundamentally different
than adults in their perception of police authority. 63 This latter interest is
represented through the amici briefs in support of the petitioner, J.D.B.,
from parties such as the American Bar Association, the National
Association of Criminal Defense Lawyers, the American Civil Liberties
64
Union, and the Juvenile Law Center.
This section will focus on the interest in retaining the traditional custody
analysis in order to maintain potent law enforcement powers. It is
articulated in three points pertaining to this case: (1) there is no need to
change the custody analysis here because Miranda rights were not
implicated since the juvenile was never in custody in the first place; 65 (2)
59.
Id.
60.
Id.at 2417.
61.
See Brief of the National District Attorneys Ass'n as Amicus Curiae Supporting
Respondent, J.D.B., 131 S. Ct. 2394 (No. 09-11121); Brief of the States of Indiana et al. as
Amici Curiae in Support of Respondent, J.D.B., 131 S. Ct. 2394 (No. 09-11121); Brief of
the United States as Amicus Curiae Supporting Respondent, J.D.B., 131 S. Ct. 2394 (No.
09-11121).
62.
See id.
63.
See generally Brief of the ABA as Amicus Curiae in Support of Petitioner, J.D.B.,
131 S.Ct. 2394 (No. 09-11121); Brief Amicus Curiae of the ACLU in Support of Petitioner,
J.D.B., 131 S. Ct. 2394 (No. 09-11121); Brief of Center on Wrongful Convictions of Youth,
et al. as Amici Curiae in Support of Petitioner, JD.B., 131 S. Ct. 2394 (No. 09-11121);
Brief of Juvenile Law Center, et al. as Amici Curiae in Support of Petitioner, JD.B., 131 S.
Ct. 2394 (No. 09-11121); Brief of the National Association of Criminal Defense Lawyers as
Amicus Curiae in Support of Petitioner, J.D.B., 131 S.Ct. 2394 (No. 09-11121).
64.
See id
65.
Brief of the National District Attorneys Ass'n as Amicus Curiae in Supporting
Respondent at 4, J.D.B., 131 S. Ct. 2394 (No. 09-11121).
CRIMINAL AND CIVIL CONFINEMENT
Vol. 39:269
age is a subjective factor, and consideration of age violates the objective
Miranda custody test and undermines its clarity and simplicity; 6 6 and (3)
the consideration of age will create a slippery slope, eventually allowing
for the consideration of other individualized characteristics such as mental
and cultural background, unnecessarily
health status, intelligence,
67
analysis.
the
complicating
A. The Argument That J.D.B. Was Not in Police Custody
The amicus brief from the National District Attorneys Association
(NDAA) is adamant that this case should never have taken up the question
of whether age informs the custody analysis because J.D.B. was never in
police custody when he was questioned. 6 8 The NDAA distinguishes
Miranda's goal, ensuring that a suspect detained for interrogation is clearly
informed of his or her constitutional rights, from J.D.B.'s situation,
claiming that J.D.B. was not held for interrogation at all in this case and
was never taken into custody. 69 Instead, the NDAA argues that no custodial
interrogation took place because J.D.B. was not removed from his "normal
70
environment," questioned forcefully, or otherwise dominated by police.
The brief points to the presence of the two school administrators in the
room during the questioning of J.D.B. and to the fact that J.D.B. was
eventually allowed to leave to catch his bus (after having confessed) as
evidence that he was "not left to the mercies of the police."7 1 What the
NDAA refused to consider is whether a boy pulled from his seventh grade
social studies class by a uniformed officer would have felt he was free to
leave or end the questioning under those circumstances.
B.
The Argument That the Consideration of Age Violates the
Objective Miranda Custody Test and Undermines Its Clarity and
Simplicity
The amici in support of North Carolina agree with each other that the
See Brief of National District Attorneys Ass'n as Amicus Curiae Supporting
66.
Respondent, J.D.B., 131 S.Ct. 2394 (No. 09-11121); Brief of the States of Indiana et al. as
Amici Curiae Supporting Respondent, J.D.B., 131 S. Ct. 2394 (No. 09-11121); Brief of the
United States as Amicus Curiae Supporting Respondent, J.D.B., 131 S.Ct. 2394 (No. 0911121).
See Brief of the United States as Amicus Curiae Supporting Respondent at 28-29,
67.
21
J.DB., 131 S. Ct. 2394 (No. 09-111 )
68.
Brief of the National District Attorneys Ass'n as Amicus Curiae in Supporting
Respondent at 4, J.D.B., 131 S. Ct. 2394 (No. 09-11121).
Id.
69.
70.
71.
Id.
Id.
2013
A GE OFINTIMIDATION
addition of an age assessment to the custody analysis introduces a purely
subjective factor into what is supposed to be an objective test. 72 In
emphasizing the importance of clarity within the custody analysis, the
amici brief for the thirty states (plus Guam and Puerto Rico) insists that the
law enforcement interests within the states must be weighed in a delicate
balance:
The [s]tates have a strong interest in promoting policies that strike a
reasonable balance among three competing concerns created by this
case: law enforcement's need to question juveniles appropriately, the
burden placed on police by special and complex rules, and
73 desire to
protect juvenile rights in interactions with law enforcement.
As this brief and the Court have noted, the Fifth Amendment already
provides a mechanism for the courts to consider a defendant's age and
whether statements given to police should be excluded because they were
coerced or given involuntarily. 74 Amici would prefer that the Court stick
with the "totality of the circumstances" test used to determine
a suspect's
75
voluntariness, rather than adding age to the custody test.
Amici for North Carolina warned the Court that the addition of age
analysis to the custody test would upset the objective standard that has
always embodied it.76 The traditional custody analysis considers the
circumstances of the interrogation in question, but never considers the
personal traits of the suspect. 77 The amicus brief for the United States
likens consideration of age during the custody test to the consideration of
inner-psychological factors. 78 The United States argues that this would
force police to conduct a psychological analysis on each young suspect,
72.
See Brief of National District Attorneys Ass'n as Amicus Curiae Supporting
Respondent, J.D.B., 131 S. Ct. 2394 (No. 09-11121); Brief of the States of Indiana et al. as
Amici Curiae Supporting Respondent, J.D.B., 131 S. Ct. 2394 (No. 09-11121); Brief of the
United States as Amicus Curiae Supporting Respondent, JDB., 131 S. Ct. 2394 (No. 0911121).
73.
Brief of the States of Indiana et al. as Amici Curiae in Support of Respondent at 1,
J.D.B., 131 S. Ct. 2394 (No. 09-11121).
74.
Id. at 13-14; See Dickerson v. United States, 530 U.S. 428, 444 (2000) ("The
requirement that Miranda warnings be given does not, of course, dispense with the
voluntariness inquiry.").
75.
Brief of the States of Indiana et al. as Amici Curiae in Support of Respondent at
13-14, J.D.B., 131 S. Ct. 2394 (No. 09-11121) (citing Gallegos v. Colorado, 370 U.S. 49,
53-54 (1962); Haley v. Ohio, 332 U.S. 596 (1948)).
76.
Brief of the States of Indiana et al. as Amici Curiae in Support of Respondent at
23-28,J.D.B., 131 S. Ct. 2394 (No. 09-11121).
77.
Id. at 28-29.
78.
Brief of the United States as Amicus Curiae Supporting Respondent at 9-11,
JDB., 131 S. Ct. 2394 (No. 09-11121).
CRIMINAL AND CIVIL CONFINEMENT
Vol. 39:269
forty-five years of Miranda case law and upsetting the objective
disrupting
7
N
test.
The amicus brief of the United States relies on Yarborough v. Alvarado,
where the Court held that a suspect's age and experience with law
enforcement were internal subjective factors and thus should not inform the
custody analysis. 80 The United States argues that Alvarado clearly
established that police officers should not be expected to consider
individualized psychological factors when determining whether a suspect
should be read his or her rights under Miranda.8 1 This refutes J.D.B.'s
argument that a juvenile suspect's age is an external and objective factor
that fits in perfectly with the objective custody analysis. Although the pure
chronological use of age may be objective, the use of age to determine how
one perceives his or her surroundings and interactions with authority is
subjective. 82 "'Age' in that sense is a psychological factor akin to the ones
that the Court has excluded from the custody test (drunkenness, emotional
distress, experience with police) and unlike the sort of objective factors
(e.g., location, physical restraint, length of time) the Court has heretofore
included. 8 3
C.
The "Slippery Slope" Argument
Another argument proposed in support of North Carolina is that if age
can be considered in the custody analysis, why not other individual
characteristics like intelligence, cultural background, or the mental health
status of the suspect? 84 This would open the floodgates to mandatory
consideration of a host of complex personal factors to consider. 85 This
would also make the custody test unwieldy, overcomplicated, and difficult
for police to navigate successfully. 86 If all personal factors were required to
be taken into account by police when determining custody, then the
exhaustive due
custody test "would become indistinguishable from the
87
process voluntariness test from which Miranda evolved.",
The amici point out that many people, adults included, have certain
psychological characteristics that might affect whether they feel police
79.
80.
Id.
Id. (citing Yarborough v. Alvarado, 541 U.S. 652, 667 (2004)).
Brief of the United States as Amicus Curiae Supporting Respondent at 19, JD.B.,
81.
131 S. Ct. 2394 (No. 09-11121) (citing Alvarado, 541 U.S. at 666-67).
82.
See id at 20-21.
83.
84.
Id. at 21.
See id. at 28-29.
85.
Id.
86.
87.
Id. at 30-32.
Id at 29.
2013
A GE OFINTIMIDATION
88
have restricted their freedom of movement or ability to end questioning.
"Individuals with low intelligence, people with mental infirmities, and
people whose cultural background encourages compliance with police
requests or causes them to view police with suspicion, for example, all
might read into their interactions with police coercion that is not apparent
from the objective circumstances." 8 9 But consideration of all of these
internal traits would be difficult for police to process. Amici in support of
North Carolina contend that adding age consideration to the custody
analysis would open the door to this difficult burden on police, forcing
officers to assess a panoply of human idiosyncrasies each time a suspect is
questioned. 90
VI. AMIcI BRIEFS IN SUPPORT OF PETITIONER J.D.B.
The arguments of the amici in support of the juvenile J.D.B. focus on
several key points favoring the addition of age to the Miranda custody
analysis: (1) without an assessment of a suspect's age in the custody
analysis, juveniles will be deprived of the prophylactic shelter of the Fifth
Amendment; (2) science and neurological studies confirm that children are
simply different than adults and this has been recognized by Supreme Court
decisions; (3) precedent supports a Supreme Court holding that
acknowledging age is an objective means of considering whether a
reasonable person would have felt free to refuse a police interrogation; (4)
juveniles are proven to be more susceptible to outside pressure,
suggestibility, and coercive interrogative techniques, leading to increased
false confessions amongst young suspects; and (5) age is a clear and
obvious characteristic that police officers can easily consider and many
state statutes and police manuals already require officers to treat youth
adult suspects since youth respond differently to police
differently than
91
questioning.
88.
89.
90.
Id.at 28.
Id.(citing United States v. Salyers, 160 F.3d 1152, 1159 (7th Cir. 1998)).
See id. at 10.
See generally Brief of the ABA as Amicus Curiae in Support of Petitioner, JD.B.
91.
v. North Carolina, 131 S.Ct. 2394 (2011) (No. 09-11121); Brief Amicus Curiae of the
ACLU in Support of Petitioner, J.D.B., 131 S.Ct. 2394 (No. 09-11121); Brief of Center on
Wrongful Convictions of Youth, et al. as Amici Curiae in Support of Petitioner, J.D.B., 131
S. Ct. 2394 (No. 09-11121); Brief of Juvenile Law Center, et al. as Amici Curiae in Support
of Petitioner, JD.B., 131 S.Ct. 2394 (No. 09-11121); Brief of the National Association of
Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner, J.D.B., 131 S.Ct.
2394 (No. 09-11121).
CRIMINAL AND CIVIL CONFINEMENT
Vol. 39:269
A. The Argument That Without a Consideration of Age, Juveniles
Will be Effectively Excluded from Fifth Amendment Protections
Amici for J.D.B. point out that one of the most critical aspects of
Miranda v. Arizona was the recognition that "rights declared in words
might be lost in reality." 92 They argue that since juveniles do not perceive
police authority and questioning the same way as adults, specific
procedural protections are needed to ensure that the Fifth Amendment
rights of juveniles are not lost in reality. 93 A consideration of age in the
custody analysis ensures that youths understand their rights under Miranda
and are properly warned of these rights when custodial conditions are
triggered.9 4 An adult's understanding of when he or she is in custody and
not free to leave is different than a child's, especially given the intimidating
presence of uniformed police officers. 95 "It can hardly be disputed that a
reasonable thirteen-year-old will behave differently than a reasonable
adult." 96 Using the "reasonable adult" standard on a juvenile enables
officers to create a coercive atmosphere without protections against selfincriminating statements 9 7obtained by taking advantage of the
vulnerabilities of childhood.
The American Civil Liberties Union (ACLU) filed an amicus brief in
support of J.D.B.,9 s arguing that children find little protection in the adult
92.
Brief of the Juvenile Law Center et al. as Amici Curiae in Support of Petitioner at
2, JD.B., 131 S. Ct. 2394 (No. 09-11121) (quoting Miranda v. Arizona, 384 U.S. 436, 443
(1966)).
93.
Id. at 4.
94.
See id. at 4-5.
95.
Id. at 15.
96.
See id.
97.
Id. at 7-8.
98.
Brief Amicus Curiae of the ACLU in Support of Petitioner, J.D.B., 131 S. Ct.
2394 (No. 09-11121). The main focus of the amicus brief from the ACLU is on the danger
associated with an increased presence of police in schools across the United States, which
the Court did not address directly in its holding or discussion:
Students are not free agents in school. They are not free to leave their classrooms,
they are not free to leave the principal's office, and there is no reason for a child to
believe that he or she is free to leave a police interrogation conducted in school as
part of a law enforcement investigation... [W]e respectfully submit this brief to
draw the Court's attention to the increasing prevalence of police in schools, the
criminalization of student behavior that was previously treated as a school
discipline problem, and the importance of safeguarding the Miranda rights of
children who are subject to police interrogations in school that can and often do
lead to criminal arrests.
Id. at5.
A GE OF INTIMIDATION
2013
"reasonable person" Miranda custody analysis. 9 9 "Even in circumstances
where an adult may understand that he is free to terminate a police
interrogation, it defies common sense to suggest that00the reactions of a
the same."'
child, no matter how young, are likely to be
B.
The Argument, Backed by Supreme Court Precedent, That
Science and Neurological Studies Confirm That Children Are
Cognitively Different Than Adults
Amici in support of J.D.B. agree on the simple reality that children are
different than adults. 1 1 This doctrine has been embraced by the Supreme
Court in cases such as Graham v. Floridaand Roper v. Simmons: "In recent
years, the doctrine [that juveniles are inherently different than adults] has
been buttressed by a burgeoning body of social science and neurological
research demonstrating that the differences between youth and adults are
02
rights are
psychological and physiological, as well as social." 1 Miranda
10 3
analysis.
the
in
considered
is
age
unless
not "a reality for youth"
The same characteristics distinguishing children from adults that the
Court identified in its Eighth Amendment jurisprudence, Roper and
Graham, apply equally when a child is the subject of a Miranda custody
analysis.' 0 4 The ABA's amicus brief points out that the Court has
acknowledged that a child's "immaturity, impetuous decision-making, and
great susceptibility to influence and pressure" are serious vulnerabilities
10 5
The unique developmental impairment of
during police interrogations.
10 6
The
children should be recognized within the Miranda custody test.
to
susceptible
"more
are
children
that
showing
research
to
points
ABA also
99.
100.
Id. at 9.
Id.
Brief of the Juvenile Law Center et al. as Amicus Curiae Supporting Petitioner at
101.
2, J.D.B., 131 S. Ct. 2394 (No. 09-11121); See also Brief of the Center on Wrongful
Convictions of Youth et al. as Amicus Curiae Supporting Petitioner at 12, J.D.B., 131 S. Ct.
2394 (No. 09-11121).
102.
Brief of the Juvenile Law Center et al. as Amicus Curiae Supporting Petitioner at
2, J.D.B., 131 S.Ct. 2394 (No. 09-11121) (citing Graham v. Florida, 130 S.Ct. 2011
(2010); Roper v. Simmons, 543 U.S. 551 (2005)).
Id.
103.
Brief of the ABA as Amicus Curiae Supporting Petitioner at 6-7, J.D.B., 131 S.
104.
Ct. 2394 (No. 09-11121).
Id. at 7 (citing Gallegos v. Colorado, 370 U.S. 49, 54 (1962)).
105.
106.
at 11.
Id.
CRIMINAL AND CIVIL CONFINEMENT
interrogation
07
confess."1
techniques than
adults ...
and
[thus]
Vol. 39:269
more
likely to
Developmental psychology studies have concluded that juveniles are
less capable of understanding "long-term consequences" and therefore
unable to communicate with their best interests in mind-even when
speaking to their own lawyer.' 0 8 In addition to increased vulnerability,
"juvenile offenders typically exhibit low levels of achievement and
cognitive function compared to adults and even compared to their
peers. '' 109 The American Bar Association recently concluded that a
Miranda warning with simplified language should be established for youth
arrestees. 110
C.
The Argument That the Consideration of Age in the Custody
Analysis Is Objective
Age is an objective and obvious classification; it is not some hidden
"personal idiosyncrasy."' 1 1 Amici asserted that the Supreme
Court has
clearly articulated that the custody rule must protect those with
characteristics of vulnerability. 1 12 In Miranda, the Court noted the
importance of discouraging police from "giv[ing] in to 'the temptation to
press the witness unduly, to browbeat him if he be timid or reluctant, to
push him into a corner, and to entrap him into fatal contractions."' 1 13 And
while the custody rule cannot force police to determine all of the
107.
Id. (citing Thomas Grisso et al., Juveniles' Competence to Stand Trial: A
Comparison of Adolescents' and Adults' Capacities as Trial Defendants, 27 LAW & HUM.
BEHAV. 333, 357 (2003)).
108.
Id. (citing Patrick M. McMullen, Comment, Questioning the Questions:
Impermissibility of Police Deception in Interrogationof Juveniles, 99 Nw. U. L. REv. 971,
995 (2005)).
109.
Id. at 15 (citing TEXAS YOUTH COMMISSION, COMMITMENT PROFILE FOR NEW
COMMITMENTS: FISCAL YEARS 2005-2009. (2009) available at http://www.tyc.state.tx.us/
research/profile html); see TEXAS YOUTH COMMISSION, STRATEGIC PLAN FOR FISCAL YEARS
2005-2009, at 11 (2004), available at http://www.tjjd.texas.gov/archive/stratjplan/strategic
_lan_05-09.pdf (discussing the several instructional challenges faced by new youth
commitments).
110.
Brief of the ABA as Amicus Curiae Supporting Petitioner at 15, J.D.B. v. North
Carolina, 131 S. Ct. 2394 (2011) (No. 09-11121) (citing ABA Report with
Recommendation, No. 102B (2010) (policy adopted Feb. 2010), available at
http://www.americanbar.org/content/dam/aba/migrated/
leadership/2010/midyear/dailyjourmal/102B.authcheckdam.pdf).
111.
Brief of the Juvenile Law Center et al. as Amicus Curiae Supporting Petitioner at
21, J.D.B., 131 S. Ct. 2394 (No. 09-11121).
112.
113.
Id. at 22.
Id. at 22-23 (citing Miranda v. Arizona, 384 U.S. 436, 443 (1966)).
2013
AGE OF INTIMIDATION
unknowable characteristics of every person,"14 a juvenile's age is not
incomprehensible, but clearly visible and immediately apparent. 115 The
Juvenile Law Center's brief distinguishes age from internal characteristics,
such as an individual suspect's criminal past, which have been excluded
police cannot reasonably be expected to
from the custody analysis because
116
interpret such traits on the spot.
The Juvenile Law Center argues that a juvenile suspect's age is not
hidden or unknowable but rather "an easily identifiable, categorical and
objective factor for the police to consider."' 1 7 The dangers of ignoring age
when determining whether a suspect is in custody are severe. An example
is provided by the Juvenile Law Center:
A reasonable blind suspect cannot be expected to read a typed
document advising him that he is free to leave. A reasonable deaf
suspect cannot be expected to have heard an oral warning. Similarly, a
to understand his options in the
reasonable child cannot be expected
118
same way that an adult would.
The amicus brief from the National Association of Criminal Defense
Lawyers (NACDL) in support of J.D.B. asserts that age is a clearly
119
objective category and will not upset the objective custody analysis.
NACDL distinguishes Yarborough v. Alvarado by pointing out that the
Supreme Court held that the lower court did not "unreasonably apply ...
clearly established Federal law" by not considering age in its Miranda
custody analysis. 120 This holding "left open the question of whether a court
may consider age... [and] under what circumstances." '2 This allows
whether age may be included in the
ample room for the Court to determine 122
custody analysis as an objective factor.
114.
115.
116.
117.
Id. at 23 (citing Berkemer v. McCarty, 468 U.S. 420, 442 n.35 (1984)).
Id.
Id. (citing Berkemer, 468 U.S. at 430-32).
Id. The Juvenile Law Center relied on Justice Breyer here: "[a]ge 'is not a special
quality, but rather a widely shared characteristic that generates commonsense conclusions
about behavior and perception."' Id. (citing Yarborough v. Alvarado, 541 U.S. 652, 674
(2004) (Breyer, J., dissenting)).
118.
Id.
119.
Brief of the National Ass'n of Criminal Defense Lawyers as Amicus Curiae
Supporting Petitioner at 6-11, J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011) (No. 0911121).
120.
Id. at 2 (alteration in original).
121.
122.
Id.
Id.
CRIMINAL AND CIVIL CONFINEMENT
Vol. 39:269
The suspect's age, when apparent to the questioning officer, is not a
subjective topic open to debate.' 2 3 Age isno less objective than any other
circumstance which the Court has approved as part of the custody test, such
as the length or location of the interrogation in question. 124 Age should not
be left out in considering the objective circumstances surrounding whether
12 5
a reasonable person would have felt free to leave or end questioning.
D. The Argument That Juveniles Are More Susceptible to Outside
Pressure and Coercive Interrogation Techniques, Leading to
Increased False Confessions
Amici point to evidence that juveniles are vulnerable and easily
suggestible during police questioning. 126 Amici emphasize that the
Supreme Court considers a suspect's age to be important. 12 7 The Court has
accepted that age is "highly relevant in determining the voluntariness of an
adolescent's confession and recognized that minors are more susceptible
than adults to coercion during a police interrogation." 128 An example of
this wisdom from the Supreme Court is found in Haley v. Ohio, in which
the Court observed that "a teenager, too young to exercise or even
comprehend his rights, becomes an 'easy victim of the law."' 129 The
amicus brief in support of J.D.B. filed by the Center on Wrongful
Convictions of Youth (the Center) focuses particularly on the increased risk
of false and unreliable
confessions as a result of police interrogation of
30
juvenile suspects. 1
The Center's brief makes the argument that young suspects are more
vulnerable to the significant pressures of police questioning, pressures
aggravated when age is not taken into account during the Miranda custody
analysis. 13 1 "Standard police interrogation tactics-which in all probability
were designed with the hardened adult suspect in mind-are frequently
123.
124.
Id. at 2-3.
Id. at 4-5 (citations omitted).
125.
Id. at 11-16.
126.
See Brief of the Center on Wrongful Convictions of Youth et al. as Amici Curiae
Supporting Petitioner at 11, J.D.B., 131 S. Ct. 2394 (No. 09-11121).
127.
Brief of the Juvenile Law Center et al. as Amicus Curiae Supporting Petitioner at
8, J.D.B., 131 S. Ct. 2394 (No. 09-11121).
128.
129.
Id.
Id. (quoting Haley v. Ohio, 332 U.S. 596, 599 (1948) (holding that a fifteen-year-
old's murder confession was obtained involuntarily through coercive methods including
interrogation by police in shifts from midnight until 5AM)).
130.
See Brief of the Center on Wrongful Convictions of Youth et al. as Amici Curiae
Supporting Petitioner at 11, JDB., 131 S. Ct. 2394 (No. 09-11121).
131.
Id. at 14-18.
2013
AGE OFINTIMIDATION
deployed against far softer targets: children and adolescents."'132 The
argument is that children are simply no match for the imposing presence of
police officers, and are thus easily intimidated and less likely to assert their
rights in the face of such authority, feeling overwhelmed and compelled to
talk. 13 3 The brief uses Supreme Court precedent to back up this claim, in
which the Court expressed skepticism of juvenile confessions obtained
through police interrogation techniques,
doubting the reliability and
134
trustworthiness of confessions by youth.
Recent decisions from the Court provide further evidence that youths are
more likely to make unreliable or false statements during police
interrogation; Roper and Graham are the most prominent examples. 135 In
these cases, the Court concluded that juveniles are more vulnerable than
adults when faced with external pressure, children being "suggestible,
impulsive, eager to -please authority figures, and hampered by immature
decision-making." 136 Even proponents of the "Reid Technique," a popular
interrogation technique used by police, admit that juveniles are more at risk
for false confessions, advising interrogators
to exercise "extreme caution
137
youth.
with
dealing
when
care"
and
Studies of false confessions prove the greater susceptibility of young
people. 13 8 A leading study cited by the Supreme Court revealed that out of
125 proven false confessions, 63% came from suspects under twenty-five
years old and 35% were under eighteen years old. 139 Another respected
study looked at 340 exonerations and found that youths under eighteen
140
years old were three times as likely as adult suspects to falsely confess.
A majority of the juveniles in an age suggestibility study agreed to sign a
false confession "without uttering a word of protest."'14 1 In 2010, another
132.
Id. at 18.
133.
Id. at 19.
134.
Id. (citing In re Gault, 387 U.S. 1, 52 (1967) (holding that the privilege against
self-incrimination extends to children)).
135.
Id. at 20 (citing Roper v. Simmons, 543 U.S. 551, 569 (2005); Graham v. Florida,
130 S.Ct. 2011, 2026 (2010)).
136.
Id. (citing Roper, 543 U.S. at 569; Graham, 130 S. Ct. at 2026, 2032).
137.
Id.
(quoting
Critics
Corner,
JoHN
E.
REID
&
ASSOCIATES,
INC.,
http://www.reid.com/educational-info/criticfalseconf.html (last visited Nov. 2, 2011)).
138.
Id. at 21.
139.
Id. (citing Steven A. Drizin & Richard A. Leo, The Problem of False Confession
in the Post-DNA World, 82 N.C. L. REv. 891, 945 (2004)).
140.
Id. (citing Samuel R. Gross et al., Exonerations in the United States, 1989
Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 523-53 (2005)).
141.
Id. (citing Allison D. Redlich & Gall S. Goodman, Taking Responsibility For an
Act Not Committed: Influence ofAge and Suggestibility, 27 LAW & HuM. BEHAV. 141, 150-
51(2003)).
CRIMINAL AND CIVIL CONFINEMENT
Vol. 39:269
study revealed
that the younger the accused, the higher the chance of false
142
confession.
The Center's brief concludes by saying that vulnerable and innocent
youths must be protected from incriminating themselves and tough
Miranda safeguards are necessary to guarantee this protection. 143 To this
end, the "Miranda custody determination
should include a commonsense
144
age."
suspect's
the
of
consideration
E. Age Is an Obvious Characteristic Which Police Can Easily
Consider and Many State Statutes Already Require Special
Treatment for Youth
Requiring consideration of age during the Miranda custody analysis
improves guidance to the police, rather than frustrating the process. 145 In
knowing he or she must consider the age of a juvenile suspect in
determining whether the suspect is in custody, a police officer is provided
146
with clear guidance concerning an obvious and visible characteristic.
Whether legislatively or judicially, most states acknowledge that juvenile
suspects require unique protections. 147 "At least eighteen state statutes and
twelve appellate decisions require special practices for the interrogation of
adolescents. In many of these states, age is an explicit component of the
custody determination."' 148 Some states use a custody test that asks whether
"a reasonable child of the same age [as the juvenile suspect] would
149
believe... [his] movement was significantly restricted.
Certain states already prohibit police interrogation of a child without the
150
presence or notification of a parent, interested adult, or legal custodian.
States with laws requiring such parental notice or presence before police
142.
Id. at 22 (citing Joshua A. Tepfer, Laura H. Nirider & Lynda Tricarico, Arresting
Development: Convictions of Innocent Youth, 62 RUTGERS L. REv. 887, 904-05 (2010)).
143.
Id. at 29.
144.
Id.
145.
Brief of the Juvenile Law Center et al. as Amicus Curiae Supporting Petitioner at
21-22, J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011) (No. 09-11121).
146.
See id
147.
Id.at 25.
148.
Id.at 25-26 (citations omitted).
149.
Id.at 26 (citing In re L.M, 993 S.W.2d 276, 288-89 (Tex. App. 1999); People v.
Ward, 95 A.D.2d 351, 353-54 (N.Y. App. Div. 1983)).
150.
Id. at 27-28; cf Commonwealth v. A Juvenile (No. 1), 389 Mass. 128, 133-34
(1983) (holding that in Massachusetts, in most cases, a knowing and intelligent waiver of
Fifth Amendment rights by a juvenile can only be established for use of juvenile's
statements in court when a parent or interested adult was present for Miranda warnings,
understood warnings, and had a "meaningful" opportunity to explain these rights to the
juvenile).
2013
A GE OF INTIMIDATION
interrogation of children include Colorado, Connecticut, Kansas, Maine,
Oklahoma, and Iowa. 15 1 If police in these states can be expected to
determine whether the suspect is a juvenile and in need of heightened
protections, amici argue that the consideration of age should not add any
burden to police in the custody analysis. 152 Additionally, this should not be
difficult because officers are constantly required to make age assessments;
police officers "must routinely consider a child's age at the time of
interrogation to enforce certain laws, such as truancy laws or curfew laws,
or to direct the child's case for juvenile or adult prosecution."' 153 Many
police manuals include language requiring officers to afford special
treatment to juvenile suspects and assess a child's age before
commencement of questioning. 154 The amici brief of the Juvenile Law
Center points out that the applicable police manual for Chapel Hill, North
includes such
Carolina, used by the police who interrogated J.D.B.,
55
language urging special treatment for juvenile suspects. 1
The consideration of age as part of the custody analysis is consistent
with Miranda's policy goal of establishing clear guidance to law
enforcement and is not a burden on police. 156 By disregarding age
completely, officers are put in "the odd position of having to ignore certain
facts about the suspect that would have bearing on the interrogation
environment." 157 J.D.B. was a young student interrogated in a middle
school during school hours; age was an obvious and inescapable part of the
circumstances of the interrogation from the moment the juvenile was pulled
from his classroom. 158 Given the reality of the circumstances of any
juvenile interrogation, a consideration of age in the custody test is a logical
addition to the analysis, one that can be easily incorporated into existing
police procedure.
VII.
WHY AMICI IN SUPPORT OF
J.D.B.
ARE CORRECT AND ULTIMATELY
GUIDE THE COURT'S DECISION
The holding of J.D.B. v. North Carolina rightfully provides much
needed protection for children because children do not respond to police
Brief of the Juvenile Law Center et al. as Amicus Curiae Supporting Petitioner at
151.
27-28 n.21, J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011) (No. 09-11121).
See id at 28-29.
152.
153.
Id. at 29.
Id.
154.
155.
Id. at 30.
Brief of the NACDL as Amicus Curiae Supporting Petitioner at 5, J.D.B., 131 S.
156.
Ct. 2394 (No. 09-11121).
157.
158.
Id.
See id;J.D.B., 131 S. Ct. at 2399.
CRIMINAL AND CIVIL CONFINEMENT
Vol. 39:269
authority in the same way as adults. The practice of reading Miranda rights
to a suspect in custody is rendered meaningless for juveniles when the
vulnerability of youth is not taken into account in the initial custody
analysis. Amici supporting J.D.B. make this critical argument with
conviction. 159 The majority cites to one of these briefs almost immediately
after discussion begins, 160 evidence as to how heavily the Court relied on
the persuasive and compelling briefs. 16 1 Justice Sotomayor, delivering the
opinion of the Court, relies on the Center's brief, which focused primarily
on research indicating that juveniles face an increased risk of falsely
confessing when interrogated: "[the risk of false confession] is all the more
troubling-and recent studies suggest, all the
more acute-when the
162
ajuvenile."'
is
interrogation
custodial
subject of
Following the guidance of amici in support of J.D.B., the Court made
the argument that juveniles are effectively excluded from Fifth Amendment
protections without a consideration of age in the Mirandacustody analysis:
"To hold ... that a child's age is never relevant to whether a suspect has
been taken into custody-and thus to ignore the very real differences
between children and adults-would be to deny children 163
the full scope of
procedural safeguards that Miranda guarantees to adults."'
The Supreme Court also follows the lead of amici supporting J.D.B. in
acknowledging the reality, confirmed by cognitive science and social
science studies, that children are simply different from adults and perceive
their world differently. 164 The majority also concluded that the
consideration of a child's age constitutes the analysis of an objective
factor. 165 Finally, the majority again relied upon an argument put forward
by the amici for the juvenile in asserting that an inclusion of age in the
custody test will not undermine clarity, but will be logical and easy for
police to execute. 16 6 The Court concluded this line of the argument
eloquently, no doubt inspired by the passionate words presented in the
amici briefs:
In short, 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
159.
See supra Part VI.
160.
J.D.B., 131 S. Ct. at 2401.
161.
See generally id at 2394.
162.
Id. at 2401 (citing Brief of the Center on Wrongful Convictions of Youth et al. as
Amici Curiae Supporting Petitioner at 21-22, J.D.B., 131 S. Ct. 2394 (No. 09-11121)).
163.
J.D.B., 131 S. Ct. at 2408.
164.
See id. at 2403 n.5.
165.
Id. at 2406-07.
166.
Id. at 2407.
2013
AGE OF INTIMIDATION
a [seven]-year-old is not a
simply need the common sense to know that
167
[thirteen]-year-old and neither is an adult.
VIII. CONCLUSION
The decision in J.D.B. v. North Carolina represents a long overdue
victory for the rights of juveniles in the United States and those who
support juvenile rights. The allies of the nation's youth are the ones who
presented the most sincere argument to the Supreme Court; this is
evidenced in the amici briefs from the American Bar Association, the
National Association of Criminal Defense Lawyers, the American Civil
Liberties Union, the Juvenile Law Center, and the Center on Wrongful
Convictions of Youth. 168 The Court clearly was moved by the compelling
arguments from these youth advocates and determined the holding of the
case accordingly.
The addition of age to the objective Miranda custody analysis makes
sense because it supports the rights of juvenile suspects and gives them
access to full Miranda protections, thus improving the integrity of the
criminal justice system as a whole. By simply inserting an evaluation of a
child's age into the custody determination, the system will be one step
closer to protecting the rights of all criminal suspects, not just "reasonable"
adults. This is an important benchmark of progress within the Fifth
Amendment Mirandajurisprudence.
Beyond the clear improvement to criminal procedure, this decision is
right because it will prevent children from being intimidated into
sacrificing their own constitutional rights. The Court has recognized that
the inherent power imbalance between a minor and a uniformed police
officer cannot be exploited by law enforcement. This will help to prevent
countless traumatic experiences and false confessions when police question
children. While there will always be abuses of authority from law
enforcement, this decision gives juveniles one additional defense against
such conduct. The youth population is one that is too often neglected: many
juvenile suspects have low levels of achievement and "limited verbal
comprehension.' 169 Given the vulnerability of such a population, any
added protection is one that may discourage unfair treatment of youth at the
hands of persons with far superior power and authority.
The Supreme Court should be commended for holding that police and
the courts should no longer "blind themselves to that commonsense reality"
that juveniles will often feel compelled to submit to police authority when
167.
168.
169.
Ct. 2394
Id.
See supra Part VI.
See Brief of the ABA as Amicus Curiae Supporting Petitioner at 15, J.D.B., 131 S.
(No. 09-11121).
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an adult would feel free to leave. 170 It is indeed commonsense that a child's
age should inform the Miranda custody analysis. Children across the
United States would be grateful to understand that someone is speaking up
for them.
170.
J.D.B., 131 S. Ct. at 2403 (citing Eddings v. Oklahoma, 455 U.S. 104, 115-16
(1982); Bellotti v. Baird, 443 U.S. 622, 635 (1979)).