Oral Argument Preview: Voluntariness of a Juvenile Confession. State of Ohio v. Tyshawn Barker.

Update: On April 28, 2016, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On November 17, 2015, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Tyshawn Barker, 14-1560. At issue in this case is whether the statements of a juvenile made during custodial interrogation may be presumed voluntary if they are recorded.

Case Background

On October 17, 2011, detectives interrogated Tyshawn Barker about his involvement in two murders. Barker, who was 15 at the time of the killings, had an IQ of 69 and word recognition skills at a third grade level. The detectives read from a Cincinnati Police Department Notification of Rights form advising Barker of his Miranda rights. The form was read without stopping, and Barker was asked to sign to confirm that he understood his rights. After Barker signed the rights form, Barker told the detectives that his co-defendants shot the victims, and implicated himself by admitting to knowing what the co-defendants planned to do, and participating in the offenses.

Later that day, Barker was again questioned about the murders. This time, Barker told the detectives that he had been advised to call his attorney. The detectives asked Barker the name of his attorney, but he did not know her name. When asked if he would like to have an attorney present, Barker told the detectives to proceed with their questioning.

As a result of the statements obtained from Barker and the two other boys accused of the killings, the State charged Barker with one count of murder and one count of aggravated murder in Hamilton County Juvenile Court. After an amenability hearing, the juvenile court judge ordered Barker to be transferred to the Hamilton County Court of Common Pleas for criminal prosecution, where he was indicted for aggravated murder with firearm and witness specifications, conspiracy with firearm and witness specifications, aggravated robbery, and tampering with evidence.

Barker, through counsel, filed a motion to suppress his statements as obtained in violation of Miranda v. Arizona. Counsel argued that Barker did not knowingly, intelligently, and voluntarily waive his Miranda rights. The state argued that the statutory presumption of voluntariness under R.C. 2933.81(B) applied to this case, but when the trial court overruled the motion to suppress, it did not rely on the statute in finding that the statements were voluntarily made. After a no contest plea, the trial court sentenced Barker to an aggregate prison term of 25 years to life.

On appeal, the First District Court of Appeals, in a unanimous decision written by Judge Pat DeWine, and joined by Judges Lee Hildebrandt and Sylvia Hendon, held that defense counsel was not ineffective at either the amenability or the suppression hearing, and that the trial court did not abuse its discretion when it denied Barker’s motion to suppress his statements to police. While the appeals court considered whether Barker waived his Miranda rights, it applied the statutory presumption of voluntariness in R.C. 2933.81(B), which  shifted the burden to Barker to prove that his statement was voluntary, and found that Barker had not met this burden.

Key Statutes and Precedent

R.C. 2933.81(B) (All statements made by a person who is a suspect in a homicide offense, rape, attempted rape, or sexual battery are presumed to be voluntary if the statements made by the person are electronically recorded. The person making the statements has the burden of proving that the statements were not voluntary.)

Miranda v. Arizona, 384 U.S. 436 (1966) (A suspect must be warned that he has the right to remain silent and the right to appointed counsel, which he may exercise prior to, or at any time during questioning. The state cannot use the custodial statements of defendants made in response to interrogation by the police without first advising them of their constitutional rights and obtaining a waiver of those rights.)

State v. Melchior, 56 Ohio St.2d 15 (1978) (When a defendant challenges the admissibility of the defendant’s prior statements to law enforcement, the statements may only be admitted against the defendant if the state meets its burden of proving that those statements were voluntarily given by showing that the defendant was not influenced by threats or improper inducements.)

Lego v. Twomey, 404 U.S. 477 (1972) (When a confession is challenged by a defendant as involuntary, he is entitled to a reliable and clear-cut determination that the confession was in fact voluntarily rendered. The prosecution must prove by a preponderance of the evidence that the confession was voluntary. States are free to adopt a higher standard.)

Jackson v. Denno, 378 U.S. 368 (1963) (A defendant’s statements may only be admitted against the defendant if the interrogation comparts with due process. States must prove that such statements were voluntarily given.)

J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011) (To determine whether a confession is voluntary, courts take into account both the details of the interrogation and the characteristics of the accused, then weigh the circumstances of pressure against the power of resistance of the person confessing. Along with the suspect’s particular characteristics, anything else that might have affected the individual’s capacity for effective choice is relevant in determining whether the confession was coerced or compelled.)

Gallegos v. Colorado, 370 U.S. 49 (1962) (Children require greater protections than adults in interrogations because they are inexperienced, immature, easily subjected to pressure from authorities, and are often unable to comprehend the consequences of self-incrimination.)

State v. Edwards, 49 Ohio St.2d 31 (1976) (In determining whether a confession was voluntary, the reviewing court must consider the totality of the circumstances, including the defendant’s age; mentality; prior criminal experience; the length, intensity, and frequency of the interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.)

Barker’s Argument

Barker argues that he did not knowingly, intelligently, and voluntarily waive his Miranda rights. Shifting the burden to a child to prove that statements elicited during a police interrogation are voluntary under R.C. 2933.81(B) violates due process. Shifting the burden to a child is especially problematic as children require greater protections when subject to interrogation by law enforcement.

Further, Barker argues that the statutory presumption under R.C. 2933.81(B), that an electronically recorded statement is presumed voluntary, has no bearing on whether a Miranda waiver is knowing, intelligent, and voluntary, and is not constitutionally permissible. In its ruling, the First District improperly conflated the statutory presumption of voluntariness with the constitutional requirement under Miranda that a defendant knowingly, intelligently, and voluntarily waived his Miranda rights before his statement may be used against him. The state had the burden of proving that Barker knowingly, intelligently and voluntarily waived his Miranda rights, and failed to do so.

The presumption of voluntariness in R.C. 2933.81(B) applies only to certain homicide and sexual assault offenses. According to Barker, this distinction is illogical, and lacks any constitutional justification for depriving suspects of their Miranda rights.

Finally, Barker argues that all these issues are properly before the court as they arose from the First District’s opinion and reasoning in the case below.

State’s Argument

The State argues that Barker failed to raise a due process claim in the trial court or on appeal and cannot pursue it now. Barker’s claim regarding the constitutionality of R.C. 2933.81(B) is barred by res judicata because he did not raise it in the trial court, and could have done so. He has waived this claim.

Even if Barker’s claim is reviewable, the State argues that Barker was not prejudiced by the trial court’s holding because it never applied the statutory presumption that Barker asserts is unconstitutional. According to the State, the record does not show that the trial court applied R.C. 2933.81(B) to its review of Barker’s statement. Instead, the trial court properly applied a totality of circumstances test.

In any case, the State asserts, R.C. 2933.81’s presumption of voluntariness is constitutional. The concerns of the Miranda court revolve around police violence and coercion. Closed-doors interrogations present major difficulties in protecting the due process rights of the defendant. Recorded interrogations, according to the State, lessen the need for concern, and are equally as effective as Miranda warnings. R.C. 2933.81 reflects the legislature’s understanding that the burden on the state to demonstrate the voluntariness of a  defendant’s statement can be lessened slightly. Furthermore, during the suppression hearing, the State presented evidence that Barker was properly advised of his rights. Nothing in the record shows that Barker did not understand his Miranda rights. Suppressing Barker’s statements serves no constitutional purpose.

Barker’s Proposed Proposition of Law 1

When applied to a child, the statutory presumption that a custodial statement is voluntary under R.C. 2933.81(B) violates due process. Fifth and Fourteenth Amendments to the U.S. Constitution; Article I, Section 10, Ohio Constitution.

Barker’s Proposed Proposition of Law 2

The statutory presumption of voluntariness created by R.C. 2933.81(B) does not affect a reviewing court’s analysis of whether a defendant waived his Miranda rights. Fifth and Fourteenth Amendments to the U.S. Constitution; Article I, Section 10, Ohio Constitution.

State’s Proposed Counter-Proposition of Law 1

Barker waived his claim that the presumption of voluntariness created by R.C. 2933.81 is unconstitutional, and his request for a ruling on this issue by the court is merely a request for an advisory opinion because the statutory presumption was not applied by the trial court. Moreover, the statutory presumption created by R.C. 2933.81 is constitutional.

State’s Proposed Counter-Proposition of Law 2

The presumption of voluntariness created by R.C. 2933.81 in videotaped interviews can be overcome by a juvenile defendant through proof that his age rendered his Miranda rights invalid. If Barker had not knowingly waived his Miranda rights, the result in this case would have been different.

Amici In Support of Barker

Amici Curiae Juvenile Law Center, Northwestern University School of Law’s Center on Wrongful Convictions of Youth, the Children’s Law Center, Inc., and the National Juvenile Defender Center argue that R.C. 2933.81(B) is unconstitutional. Contrary to the State’s assertion, the electronic recording of interrogations cannot serve as a proxy for voluntariness, and is just one factor in determining whether a statement was voluntarily made. Finally, amici place significant importance on Barker’s minority, highlighting the vulnerability of children and teenagers in interrogations. Youths are afforded special protections, as the danger of involuntary or false confessions is higher with children.

Student Contributor: Michael Elliott

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