The U.S. Supreme Court recently held in J.D.B. v. North Carolina that when police interrogate a suspect under the age of eighteen, the suspect’s youth bears on the question whether he was in “custody” at the time and therefore entitled to hear the Miranda warnings before questioning began.
The ruling was five-to-four with the predictable lineup on each side and an opinion for the Court written by Justice Sotomayor. The five liberal-to-moderate Justices – Breyer, Ginsburg, Kagan, and Kennedy, in addition to Sotomayor – thought that youth represented a factor weighing in favor of custody.
In contrast, Chief Justice Roberts and Justices Scalia and Thomas joined a dissent authored by Justice Alito that offered an unconvincing appeal to clarity and certainty as hallmarks of Miranda, while plainly exposing the four conservative Justices’ hostility to Miranda itself.
The Role of Custody and Interrogation in Miranda’s Protections
Just about everyone who has watched American television in the last forty years is familiar with the Miranda warnings, required by the Supreme Court in the landmark 1966 case of Miranda v. Arizona. Following this decision, police who arrest a suspect routinely warn her that she has the right to remain silent; that anything she says may be used against her in court; that she has the right to an attorney; and that if she cannot afford to pay a lawyer, she can have one appointed at the state’s expense. Less familiar to people outside legal circles are the precise circumstances that trigger a police officer’s obligation to give a suspect these warnings.
Police officers do not have to warn a suspect if they will not be interrogating her. The Supreme Court has required Miranda warnings only as a prelude to interrogation. As a result, the Court has had to clarify over the years what sort of police behavior does and does not count as “interrogation.” The Court has held that police engage in interrogation when they speak or act in a manner that they should know is “reasonably likely to elicit an incriminating response.”
Even if police do interrogate a suspect, moreover, Miranda does not apply unless the suspect is also in custody. For that reason, if police were to approach you on the street, say hello, and ask you questions (that is, “interrogate” you), they would not first have to give you any of the Miranda warnings. You, of course, would retain your Fifth Amendment right not to be compelled by police to incriminate yourself, but the police would not be obliged to tell you about that right, and if you voluntarily responded to their questions, your answers could still be “used against you in a court of law.”
Because custody, like interrogation, is a prerequisite to the application of Miranda, the Court has also had to clarify over the years what sorts of situations do and do not qualify as “custody.” As the Court has defined it, a suspect is in custody when a reasonable person in the suspect’s circumstances would not feel that she was at liberty to terminate the interrogation and leave.
In determining whether or not an interrogation is custodial, we ordinarily consider the external conditions that the suspect faces. Is the suspect surrounded by armed police officers? Has she been told that she is under arrest? Have the police questioned her for a long period of time? Is she in an unfamiliar environment, isolated from family and friends?
In contrast, the Court generally does not consider more internal, person-specific circumstances in deciding the custody issue: How “experienced” is the suspect with the criminal justice system? Does he suffer from a mental illness or other mental or cognitive disability? Is he well-educated? Does he in fact feel free to leave? These subjective questions have not been part of the legal test for custody.
The reason for the external focus is clear. The Court does not want police to have to conduct a complicated investigation of every individual suspect before determining what constitutional rights apply. Given the speed with which police must make important decisions, the Court has tried to create a framework in Miranda that protects suspects from coercion while simultaneously permitting police to do their jobs and know in advance what is and what is not permissible.
For a police officer, it is far easier to determine whether an external circumstance is present – such as whether a suspect is at the stationhouse or at home at the time of interrogation – than it is to figure out whether an internal condition is present – for example, whether the suspect has previously suffered from auditory hallucinations. External conditions are readily apparent to the police, while internal subjective states are usually unknown to them.
The Justices’ Split Regarding Whether a Suspect’s Youth Should Be a Factor in the Determination Whether He is in Custody
In the recent J.D.B. decision, the Supreme Court approved consideration of a suspect’s youth as a factor in the determination whether he is in custody. One could characterize youth as a person-specific factor, comparable to other idiosyncratic facts about the suspect’s interior world, like intelligence and anxiety level. Youth is manifestly different, however, from these sorts of person-specific facts, because for police to recognize that a suspect is a minor typically calls for no special insight or investigation into his internal world or past experience, in the way that determining mental health status or educational background would require. Knowing that a suspect whom police are interrogating is a minor is quite similar in that regard to knowing that the suspect is surrounded by police at the stationhouse rather than by family in his own home.
The dissenting Justices in J.D.B. did not see it this way, of course. They found the majority’s decision to be a major departure from the Court’s prior precedents considering only external circumstances in making custody determinations.
The dissent also reasoned that it would now be difficult for police to know whether someone under the age of 18 was or was not in custody. The dissenters expressed the fear that this uncertainty would in turn create an unfair risk that police would act professionally and appropriately, but would nonetheless find the evidence they had dutifully gathered excluded from consideration at trial.
The Dissent’s Emphasis on Clear Rules – and Its Dubiousness About Miranda Itself
The dissent reminded the majority that Miranda was meant to provide clear rules to the police, even at the expense of reaching undesirable results in particular cases. An undesirable result might ensue either because a suspect is especially vulnerable to interrogation and therefore needs more than the warnings that Miranda provides, or because a suspect is “seasoned,” knowledgeable, and confident and therefore does not need warnings at all.
In the former case (where a vulnerable suspect needed more than warnings), a statement might be admitted, even though the suspect subjectively felt coerced. In the latter case (where a seasoned suspect did not really need warnings), a statement might be excluded because police gave no warnings, despite the suspect’s subjective comfort and ease in answering the officers’ inquiries. The Miranda rules are in that sense both under-inclusive and over-inclusive and therefore sometimes generate flawed results in both directions.
From the perspective of at least two and perhaps all four of the dissenters in J.D.B., Miranda was wrong when it was decided and should have been overruled when the Court had the opportunity, in the 2000 case of Dickerson v. United States (in which Justices Scalia and Thomas dissented). Because the Miranda warnings are not expressly required by the Constitution, opponents of Miranda complain that the decision illegitimately and ill-advisedly extended greater protection to suspects than the Constitution warrants.
The dissenters in J.D.B. understand, however, that Miranda appears to be here to stay, so they do not argue that the majority’s opinion in J.D.B. is wrong just because Miranda is wrong. Instead, they claim that they are unhappy about the lack of clarity that the decision ushers in, and about the consequent need for police and courts to engage in person-specific inquiries. In other words, the dissenters say, even if one accepts Miranda, one should still reject J.D.B. because of the uncertainty it creates.
Yet this claim is disingenuous, because the dissenters exhibit their indifference to the uncertainty problem within the very same dissenting opinion – as well as in at least one recent majority opinion in which all four J.D.B. dissenters joined.
The Dissenters’ Indifference to Uncertainty
In Justice Alito’s dissenting opinion in J.D.B., he cites New York v. Quarles for the proposition that Miranda provides needed clarity and predictable guidance to police. Now consider the Court’s holding in Quarles. The police there had interrogated a suspect in custody without first providing Miranda warnings. Under the one-size-fits-all application of Miranda that the J.D.B. dissent urges, Quarles’s statements should have been suppressed, period, without further inquiry into the particular circumstances. Yet in real-life Quarles, the Court held that in an emergency, police may go ahead and question a suspect in custody without providing warnings, and when they do, the suspect’s responses will be admissible against him in court.
In Quarles, the Court wanted police to feel free to interrogate suspects without warnings in an emergency, so it deviated from the Miranda rules and announced a public safety exception. Believing that police should have the discretion to deal with emergencies effectively, the Court took a more nuanced approach than fidelity to the clear rules of Miranda would have allowed. This meant that instead of just asking “Is there custody?” and “Is there interrogation?” courts (and police themselves) would thereafter have to figure out as well whether the particular circumstances surrounding an arrest gave rise to a Quarles public safety situation. The Court in fact stated in Quarles that “[i]n recognizing a narrow exception to the Miranda rule in this case, we acknowledge that to some degree we lessen the desirable clarity of that rule.” The dissent in J.D.B., however, does not take issue with this decision but instead quotes from it with approval in singing the praises of clear, unambiguous rules that guide the police.
Put simply, the J.D.B. dissenters trumpet the virtues of clarity, while simultaneously relying on a prior case in which the Court frankly admitted that it had sacrificed clarity to other important values.
Justice Alito also cites Berkemer v. McCarty in his J.D.B. dissent. In McCarty, the Supreme Court specifically addressed the meaning of custody, as the majority does in J.D.B. When a police officer pulls over a vehicle for a traffic stop, the Court held in McCarty, the officer need not read the suspect Miranda warnings. Even though the officer has seized the suspect, who is therefore not free to leave, the character of a traffic stop, both in length and context, is very different from what suspects typically confront in an arrest. The Court found that a traffic stop therefore does not place a suspect in “custody,” such that warnings would be a necessary safeguard.
Again, it would have been a clear and predictable one-size-fits-all rule to say that there is custody whenever a reasonable person would believe that she is not free to leave, a test that obviously would apply when a driver is pulled over by police. But the Court chose instead to narrow the scope of Miranda and limit the definition of custody, thereby creating uncertainty about which non-arrest detentions would and which would not trigger the obligation to read Miranda warnings, all in the interest of giving police greater freedom in detention situations that are somewhat less coercive than arrests.
Similarly, in a decision from as recently as last Term, a majority in Berghuis v. Thompkins ruled that even if a suspect in custody says nothing explicit to waive his Miranda rights after the police have read them to him, police may still interrogate the suspect if he has waived his rights implicitly. Though prior case law had suggested that waivers would have to be explicit and clear, the Court nonetheless announced a test of waiver that would be harder to apply than simply requiring police to ask the suspect whether he wishes to waive his rights, a straightforward question that many police had already been routinely posing to suspects after providing the warnings. I wrote an essay discussing the perplexing nature of the Thompkins decision here.
Post-Thompkins, results now must turn on a fact-specific analysis of whether a suspect understood and implicitly waived his rights after receiving the warnings, rather than a far easier-to-apply, clear, across-the-board rule requiring an explicit waiver and thus providing unambiguous guidance to the police. Yet all four members of the dissent in J.D.B. joined the majority in Thompkins last term, and they now take issue with neither McCarty nor Quarles, the older cases sacrificing clarity for nuance. Creating uncertainty thus appears acceptable to the Court’s conservative Justices, sometimes.
I believe there are good competing arguments for favoring clarity and for focusing on individual circumstances, respectively. It is nonetheless difficult to take the J.D.B. dissent’s protests seriously, since the dissenters do not seem especially enamored of clarity in instances when clear rules would result in limits on the police and in the exclusion of incriminating evidence. In those instances, clarity gives way to a more results-oriented analysis.
A Plea For Honesty
The debate over clear rules versus flexible and nuanced standards is an important one that has relevance not only for Miranda but for virtually every area of law. The J.D.B. dissent’s gripe, however, evidently has little to do with this debate.
Instead, the J.D.B. dissenters seem uniformly to dislike Miranda in almost every case. They should admit as much and focus their discussion on why that is, rather than pretending that they truly want greater certainty and clarity in Miranda’s application.