What’s on Their Minds: Does a Juvenile Have the Right to Counsel at the Interrogation Stage of the Proceedings? In re M.W.

On Oct. 3, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here

On December 6 the Supreme Court of Ohio heard oral argument in the case of In re M.W., 2011-0215.  The issue in this case is whether an interrogation of a juvenile as allowed under R.C. 2151.311 constitutes a “stage of the proceeding” against the juvenile under R.C. 2151.352 and requires the child to be counseled by a parent or an attorney before waiving his or her right to counsel under Miranda.  

Fifteen year old M.W. was taken into custody for his role in an armed robbery. He was not given the chance to consult with a parent or a lawyer before he was questioned by the police.  He waived his Miranda rights with no advice from a parent or a lawyer. Read the complete oral argument preview of this case here.

 R.C. 2151.311 governs the procedure upon taking a child into custody, and allows a child to be questioned. R.C. 2151.352 governs the right to counsel, and provides that a child is entitled to representation at “all stages of the proceedings” under Chapters 2151 and 2152. “All stages of the proceedings” is not defined.

 M.W.s attorney argued that children are entitled to advice from a parent or a lawyer during custodial interrogation, which is a “stage of the proceedings” under Chapter 2151 of the Code. Nowhere in the statute is “stage of the proceedings” limited just to court proceedings. If the General Assembly had intended for R.C. 2151.352 to apply only to “court proceedings” or “hearings,” it would have said so. But it didn’t. Interrogation is a stage of the proceeding and therefore covered under R.C. 2151.352.

 M.W.s lawyer argued that children are not allowed to waive their right to counsel in a delinquency proceeding in court without the advice of a parent or a lawyer.  So why should they be allowed to do that earlier, at the even more arguably adversarial interrogation stage of the proceedings? There should be a bright line rule here.  A child cannot waive his Miranda rights without first getting advice from a parent or a lawyer.

Amicus National Juvenile Defender took the rebuttal portion of appellant’s argument. She didn’t get a chance to say much, but  she did make her point emphatically, that only a lawyer can fill the role of giving a child meaningful advice about whether to proceed with or without counsel in an interrogation.  She asked the Court to write a bright line rule that children have the right to counsel at the interrogation phase of the proceedings, before any waiver of Miranda rights.

 The prosecuting attorney disagreed with M.W.’s statutory interpretation, arguing that custodial interrogation is not a stage of the proceedings, and that appellant has expanded that term beyond its intended meaning. The presence of a parent or an attorney is not required before a juvenile can waive his Miranda rights.  The constitutional right to counsel attaches at the hearing stage, not before. A juvenile can waive his right to counsel without first consulting a parent, adult custodian, or a lawyer. The validity of that waiver—a different issue–is to be evaluated under a totality of the circumstances test.

 The prosecutor made clear several times that the state is not opposed to a change in the law by the General Assembly, noting that a number of states have adopted age-specific statutory provisions requiring the presence of an attorney or parent during a child’s interrogation. But as things stand now in Ohio, the right to this advice is limited to court actions. He also effectively parried the concerns of a number of the justices about limiting parental involvement by staying on message that there is no prohibition about parental involvement at the interrogation phase, it just isn’t required under the existing statute.

 Isn’t This Clearly a Policy Choice for the General Assembly?

Justice Stratton immediately noted that most of M.W.’s arguments deal with policy choices for the General Assembly, not a constitutional requirement. 

 Chief Justice O’Connor also asked why not just ask the legislature to expand the right to counsel for juveniles.

 How Far Back Does This Right to Counsel Attach? And How Does it Attach?

Justice Stratton asked whether the right would attach only when the child is in custody and Mirandized, or on the street or in the police cruiser?

Justice O’Donnell asked how a child would actually get a lawyer at a custodial interrogation? (answer—just like a grown-up—by asking for one)

The social science literature does suggest that kids are different

Justice Stratton noted that constitutional protections have been evolving, particularly for the mentally retarded and disabled.  The social science literature is strong that children are easily manipulated—isn’t it time to decide if there should be constitutional protections here since science tells us children don’t make rational decisions the way adults do. 

 Chief Justice O’Connor also acknowledged the validity of the social science literature about the difference in the child’s not-yet-fully-developed brain and rash decision making.

Statutory Construction? 

Justice Stratton suggested that the defendant’s lawyer was trying to make the initial interview with a child into a “proceeding” to reach her position.

 Chief Justice O’Connor noted that given the “gold standard” of a knowing and intelligent waiver, combined with what science tells us about child development, why couldn’t the court read the statute to allow for a consultation with a parent or lawyer about whether to waive Miranda rights? She later commented that the constitutional right to be mirandized attaches at interrogation—was the state saying the constitutional right to counsel doesn’t? (state—don’t confuse the 5th amendment protection against self-incrimination with the  6th amendment right to counsel )

 Justice Lanzinger asked if the whole matter boiled down to whether a child needs a lawyer or parent to help that child decide whether to have a lawyer for any future questioning?

 When should parents get involved?

Justice O’Donnell asked whether the Court was being asked to write a rule that every time a child is taken to the police station, parents must be summoned. He later asked if it was the state’s view that the police should be questioning juveniles without their parent being present or at least notified? (state’s answer: no it wasn’t). At what stage should the parent be brought into the proceeding? And should the police have a duty to contact the parent before any questioning begins?

 Chief Justice O’Connor asked whether it wouldn’t at least make sense that a parent be notified before a child is interrogated? And was there any prohibition against have a parent talking with the child before interrogation (state’s answer: no, but it isn’t required under the existing statute).

 What Exactly Can Parents or Lawyers Do for Children in hearings?

Justice Pfeifer noted the informal nature of juvenile proceedings compared with adult court and asked if the child, without any assistance of a parent or lawyer had already waived his Miranda rights and confessed, what was left for the lawyer or parent to do? Serve as some kind of mitigation advocate?

How it Looks from the Bleachers

It takes a lot of steps to give the statutes the construction urged by the appellant, and I don’t think a majority of the justices are likely to buy that argument. But Justice Stratton and Chief Justice O’Connor (and probably several others—Justice McGee Brown, for example, was not present, but will be participating in the decision according to the Chief Justice) are clearly concerned with the law being out of sync with what social science has made abundantly clear—kids are not little adults, they can be easily manipulated by authority figures, especially in custodial settings, and trying to make a decision as important as waiving Miranda rights without help is a policy that needs re-examining.  Any decision is likely to fully explore the scientific data on this point. The Court may not buy the appellant’s proposition of law, but it is likely to send a very clear signal in its opinion that this is something the legislature really needs to take another look at, and consider joining the states that have chosen greater protection for juveniles at the interrogation stage of the proceeding.

 

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