By Elizabeth Kruska
Kids aren’t miniature adults. Conceptually, we all know this. There are some things kids understand, and there are some things that we, as adults, have to explain to kids in different ways so that they understand. I often tell people that the so-called Miranda warnings are the best recognized piece of American criminal procedure, but they’re also the most commonly misunderstood. I’d be rich if I had a dime for every person who said to me, “well, they never read me my Miranda rights, so that means I win automatically, right?” That happens because people don’t understand Miranda. And imagine – if grown-ups are saying that, how confusing it might be for kids.
That’s why we have slightly modified expectations when it comes to the use of Miranda for kids. And that’s also why E.W.’s delinquency case got reversed.
Here’s the skinny. E.W. was a fifteen year old kid who was suspected to be involved in the theft of a vehicle in the Northeast Kingdom. The State Police came to talk to him (the opinion notes that it wasn’t clear if the Trooper was in uniform and had a gun – that can make a difference for the custody analysis the court needs to do). At the time of this conversation, E.W., was in DCF custody and had been living in a foster home for several weeks. When the Trooper arrived to talk to E.W., the foster parent had some reservations about what to do and reached out to E.W.’s guardian ad litem (GAL) for guidance about what to do. The GAL said that usually the child’s attorney would want to be present for something like this. They tried to reach the attorney but couldn’t get through.
The call with the GAL happened while the Trooper was there. The GAL again advocated for waiting until the child’s attorney could be reached. The Trooper’s response was to say that a nice family was missing their car and that E.W. knew where it was. The GAL then advised the Trooper to go forward with the interview but to make sure the foster parent was there.
Then the foster parent talked to E.W. privately before E.W. talked to the Trooper. The foster parent denied that he told E.W. to talk to the Trooper, although there was some suggestion that he told E.W. to “be honest” with the Trooper.
So, the interview went forward. It was not recorded. Recorded interviews are the best way to go; I’m not sure why this one wasn’t. The interview started inside the foster parent’s house and then moved outside to a nearby vegetable stand. The foster parent was there the whole time. On a couple different occasions during the conversation E.W. and the foster parent spoke separately when it looked like E.W. was going to make admissions to the incident surrounding the stolen car as well as to other things. E.W. ended up getting charged with something like eleven delinquency counts for various crimes.
E.W. and his attorney moved to suppress his confession under both the Fifth and Sixth Amendment rights to counsel, as well as under Chapter I, Article 10 of the Vermont Constitution. The Fifth Amendment right to counsel attaches when someone is in custody and subject to interrogation. The Sixth Amendment right attaches at the time someone has been charged and the case is at a so-called critical stage. The facts of this case are about whether or not E.W. was in custody (not DCF custody, but custody for purposes of interrogation), so this is largely a Fifth Amendment analysis.
The trial court did not suppress his statements, saying he was not in custody at the time of the interview. So E.W. appealed.
When SCOV examines this kind of issue, they have to look at both law and fact. The reason is because although there’s a heck of a lot of law on the Fifth and Sixth Amendment, the court actually has to take a look at all the factual circumstances surrounding the issue itself. Here, SCOV has to decide if the trial court made a clear error in analyzing the facts in order to support its decision.
It’s really clear that E.W. was interrogated, within the meaning of the word. The Trooper came to the foster home with the goal of asking E.W. questions (or making statements he knew would be designed to elicit an incriminating response, if you want to get all definition-y about interrogation). The Trooper didn’t run into E.W. at the local pizza shop and make idle chit-chat about the weather; his goal was to get E.W. to say what he knew or what he did in connection to the stolen car.
Vermont has long recognized that kids need some special help when it comes to their constitutional rights. We have a case that says kids can certainly talk to the police in custodial interrogation settings, so long as they’ve had an opportunity to consult with a disinterested adult who is aware of the child’s rights. Still, though, the interrogation has to be done in a custodial setting, not just a casual conversation like in the pizza place example I noted above, in order to trigger Miranda warnings.
So, how do we know if someone is “in custody” for purposes of Miranda? Generally, it’s when a reasonable person in the same circumstances would not feel that he or she is free to leave. The court has to look at all the facts surrounding the interrogation to see if the person would feel free to leave. The US Supreme Court decided a case called J.D.B. v. North Carolina a few years ago that dealt exactly with kids in custodial interrogation situations. SCOTUS said that courts should consider not just the external factors – location, number of people present, whether there is a parent present, etc., but also the child’s age. SCOTUS said it’s common sense that kids perceive things differently than do adults. When there are adults talking to a child and asking questions, it’s really possible that a child, because of his or her age, really might not feel like it’s possible to walk away from the adults.
SCOV takes a look at the facts in this particular case. First, it was pretty clear that the Trooper never told E.W. or the foster parent that they were free to end the conversation. Second, the Trooper was pretty clear that he thought E.W. was guilty of stealing the car. Third, is E.W.’s age. Just because he was 15 doesn’t mean he wouldn’t have the maturity to know he could end the interview, but he might not. And it’s a little unclear whether the foster parent was an independent adult. In fact, although E.W. was in a home, it wasn’t his home – it was a foster home, where he was placed as a ward of the state. It might be a reasonable inference to draw that if E.W. was in a foster home, he might have been given the impression that he’s always got to do what the adults say.
SCOV looks at all these factors together and determines that E.W. would not have reasonably felt free to leave. Therefore, he was in custody. Since he was in custody, the interrogation would have required a warning of his rights, pursuant to Miranda v. Arizona. SCOV finds that didn’t happen, and as a result, the confession he gave must have been suppressed.
Justice Dooley disagrees with the majority and writes a dissent. He looks at the same factors, but a little differently, and concludes that a reasonable fifteen-year old in E.W.’s situation would have felt that he could have left the interview at any point, and so Miranda wasn’t needed. He agrees that the court’s job is to consider all the factors surrounding the interview to determine if it was custodial in nature or not.
The dissent suggests that SCOV did a little too much second-guessing when it came to the analysis of the facts below. Furthermore, there just weren’t enough facts to make the finding of custody.
Justice Dooley just isn’t seeing that the interview was coercive in any way. It took place either inside the foster home, or just outside. He also disagrees with any notion that just because E.W. was a child that that factor alone is determinative of custody. It seems like Justice Dooley’s issue with the reversal is that there wasn’t enough evidence to support the determination that E.W. was in custody. His reading of the facts – the fact the interview took place in a familiar setting, and with a familiar adult present, would tend to show that in fact, E.W. would have felt free to leave.
So, maybe if there had been more evidence before the court to support the custody argument, maybe Justice Dooley would have found a custodial interrogation. But, on the record established, he felt there wasn’t enough.