Update: On April 28, 2016, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
“Where in this record can I look at this mentally challenged 15 year old who said, yeah I talked to a lawyer but I don’t know what a lawyer is. Where do I know that he has intelligently waived his right to counsel?” Justice O’Neill, to the prosecutor.
“The recording might show there wasn’t misconduct, but why does the recording show that it (the confession) was voluntary?” Justice French, to the prosecutor.
On November 17, 2015, the Supreme Court of Ohio heard oral argument in the case of State of Ohio v. Tyshawn Barker, 14-1560. At issue in this case is whether the confession by a 15 year old juvenile with an IQ of 69 was voluntary.
Tyshawn Barker, then just fifteen, was taken from his house and into custody by police near midnight. The detectives told him they were going to get some information from him. They read to him from a police notification of rights form, which he signed. After Barker signed the form, a detective asked him if he was familiar with the form and aware of his rights. He told the detective he wasn’t, that it was his first time. An officer asked if he was familiar with Miranda from TV and he said he was. Barker then 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. This interview was recorded by audio and video. The recordings were later admitted into evidence.
Later that day the police questioned Barker a second time. They indicated they were going to read him his rights again, but Barker stopped them and told them he had seen an attorney—“whatever that is.” But when asked if he would like to have an attorney present, Barker told the detectives to go on and 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, at which no evidence was presented on behalf of Barker, 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. Defense counsel argued that Barker did not knowingly, intelligently, and voluntarily waive his Miranda rights, but presented no evidence or witnesses at the hearing. 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, nor did it find that the burden had shifted to the defendant to prove voluntariness. 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, 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 also 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. The court also reviewed the video recording and concluded that the trial court’s finding that Barker had voluntarily, knowingly and intelligently waived his Miranda rights was supported by the record.
Read the oral argument preview in this case here.
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.)
Haley v. Ohio, 332 U.S. 596 (1948) (Courts should take special care in scrutinizing a purported confession made by a child in absence of counsel.)
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. 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.)
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. When the accused is a juvenile, age is a highly relevant factor in the equation.)
In re C.S., 2007-Ohio-4919 (It is commonly recognized that courts should take special care in scrutinizing a purported confession or waiver by a child. In determining whether a juvenile’s waiver of counsel is valid under the totality of the circumstance, the court must consider the age, intelligence, and education of the juvenile; the juvenile’s background and experience generally and in the court system specifically; the presence or absence of the juvenile’s parent, guardian or custodian; the juvenile’s conduct; the juvenile’s emotional stability; and the complexity of the proceedings.)
At Oral Argument
Sheryl Trzaska, Assistant State Public Defender, Office of the Ohio Public Defender, Columbus, for Appellant Tyshawn Barker.
Rachel Lipman Curran, Assistant Prosecuting Attorney, Hamilton County, for the Appellee State of Ohio
The United States Supreme Court has long held that the state has the burden of proving that a statement elicited from a defendant during a custodial interrogation is voluntary in the sense that it is the product of a free and unconstrained choice to give that statement. The state has the burden of proving that a defendant knowingly, intelligently and voluntarily has waived those rights before questioning may proceed. What the Miranda waiver requires are an understanding of the nature of the right the person has, and a decision to speak with an understanding of the consequences of giving the statement. R.C. 2933.81(B) places the burden on a defendant in a custodial interrogation to prove that his statement was voluntary and removes that burden from the state.
In addition to asking questions to determine whether the accused was sober, the state has to show that the accused understood what his rights were and that he made a decision to abandon those rights. There is no waiver on this record. Simply being advised of one’s rights isn’t sufficient to prove a valid waiver. There has to be a demonstration that the person understood the consequences of that waiver, using a totality of the circumstances test. Just being given one’s rights doesn’t mean a person—especially a child-understands those rights.
Because it applied the presumption of voluntariness in R.C. 2933.81(B), the court of appeals never gave an appropriate consideration to the required constitutional test. This statute is unconstitutional as applied to a child.
Barker signed a piece of paper that he never had the chance to read and was never asked a single question to demonstrate that he understood what he was giving up. This was his first time with law enforcement. He could read at a third grade level. He admitted he had seen Miranda stuff on TV. In the first interrogation, when Barker gave his entire statement, what the video shows is an officer telling him to sign this form, he signed the form and the police immediately proceeded to question him. The law requires special protections for children. The officer should have further inquired to determine if Barker understood what a lawyer was, and was for.
This court has held in In Re CS that when a child waives his right to counsel, there has to be a demonstration of understanding. There was none here. And the form itself just doesn’t do the job here.
Before R.C. 2933.81(B) was enacted, to pass constitutional muster, the state had to prove that a defendant voluntarily, knowingly, and intelligently gave his statement. In a suppression hearing the state has to prove that by a preponderance of the evidence. The state did so in this case.
Even after the defendant had talked with an attorney, he still chose to talk with the police. He was willing to give information and it seemed like it was his choice. Barker had spoken with an attorney, the attorney had told him to refuse to answer questions, and even after that, the officers went beyond what they are required to do and actually asked Barker if he wanted to talk to an attorney or to talk to them. Any refusal to answer questions has to be unequivocal. But Barker said no, let’s talk, and went on with the interview. There is no requirement for police to actually get to that level of specificity, and yet they did.
Furthermore, the constitutionality of R.C. 2933.81(B) was not raised by the defendant in either the trial court or the appeals court. The trial court did not apply it, although the state had asked it to. Instead, the court properly used a totality of the circumstances test in finding the waiver of rights. Age and IQ are factors in that totality of circumstances. But at the suppression hearing, the defense never put on any information, never put on an expert indicating that the defendant had a low IQ. The defendant himself did not testify. The defense never put forth any information regarding how Barker’s youth would have made his statement involuntary. None of this was raised below.
What Was On Their Minds
Here are the two views of this case. Take your pick.
“So what I am looking at is, officers notified him of his rights, he signed a paper that acknowledges that he knew them, they had an interrogation of some sort, and then he had the opportunity to consult with an attorney, and then when the officers came back, they said do you want to get an attorney and he said, no we can just go on—is that fair? Is that factually correct?”
“So the state comes up short in the following respects-you (defense counsel) argue that the form he (Barker) signed and the way it was presented, all he acknowledged was that you’ve shown me this form, he did not formally waive his right to counsel, and it was midnight and he was without his parents, he was unsophisticated and he had a level of intelligence that is borderline mentally retarded and on top of all of that, you (defense counsel) argue that the state has the burden of the burden to prove and instead it is upside down here. Your client was thrown the burden of proof.”
Confessions and Juveniles
Can a 15 year old waive a constitutional right absent the presence of a parent, asked Justice O’Neill? (yes, said defense counsel) What do we know about Barker’s reading skills? Do we know from the record where his parents were when they took him out of his home at midnight?
Does his IQ of 69 raise the bar substantially for the state in this particular case at least, asked Justice Pfeifer? Wouldn’t the normal protocol be to bring a parent along?
In a very interesting question, Chief Justice O’Connor asked whether there is any colloquy that has been sanctioned by a court anywhere that provides a format for law enforcement under these circumstances. Later she asked if the detectives involved had any training in the interrogation of juveniles.
Shall the court say that anytime there is a juvenile, the state has the burden to prove everything, other than using the statutory presumption, asked Justice Lanzinger? But in this case the state failed to meet that burden?
Exactly What Happened During the Police Questioning
Didn’t the defendant inform the police that he had consulted with a lawyer who wanted to be present, and they said that’s nice let’s go on with the questioning, asked Justice O’Neill? Are we looking for magic words here?
The original questions asked by the police were to make sure the defendant was straight and sober and could understand what they were reading him, correct, asked Chief Justice O’Connor? (answer: yes) But the defense argues that the signing of the form was just an acknowledgement that he was read those rights, not that he understand them? (answer: yes) What more should the detective have done here? What is the evidence that he understood? Presumably, he remembered what they said from the first interview, which would be, these guys are my friends, they are going to try and help me get out of this trouble, she commented. Later, she asked if the second session had been recorded, but the prosecutor did not know.
After the detectives advised Barker of his rights, did he sign a document indicating that he had waived those rights, asked Justice O’Donnell? What was it that he signed? Did Barker have the opportunity to speak with an attorney? Was he advised of his rights on two separate occasions? Did he sign two different forms? Is the defense quarrel with the way that Barker’s rights were explained to him? Or with the form that was utilized? Is there a statement on the form that “I waive my rights and I agree to continue” or some words to that effect?
Was the only thing the defendant admitted that the notification of rights document was read to him, asked Justice Pfeifer?
Waiver of Rights Requirements
Is there a distinction to be made between waiving rights and making voluntary statements, asked Justice French? The statutory language speaks to all statements made in a custodial interrogation. Does that include the waiver of rights, or are those two different concepts? Later, she commented that she got the difference between Miranda and the basis for Miranda but noted that that related to the actions of police officers, not the mindset of a 15 year old.
Shouldn’t the defendant’s IQ and past experience with the law be considerations, asked Chief Justice O’Connor?
One reading of the statute, to make it constitutional, or at least partially so, would be to say that it doesn’t apply to waivers at all, commented Justice French. We cannot take away Miranda rights, and so this can only apply to statements made after there is a valid waiver? Later, she asked whether the trial court had applied the statutory presumption of voluntariness. (both counsel agreed it had not.) While the factual issues presented may go to whether the statements were voluntary or not, the statute doesn’t do that, she noted. After admitting that she was struggling with the justification for the presumption in the statute, she asked, in a key question of the day, what it was about a recording that made a child’s statement voluntary? The Chief later commented the only thing a recorded statement would show was the absence of police coercion, but that it was an ineffective method of determining the other factors that go into voluntariness.
There was no constitutional challenge in the suppression hearing, just a statutory one, asked Justice O’Donnell?
The Procedure in this Case
In a lifeline thrown to the prosecutor, which she didn’t seem initially to recognize as such, Justice O’Donnell asked the prosecutor what weight the court should give the appellate decision that said that based on a review of the recording, it concluded the trial court’s finding that Barker had voluntarily knowingly and intelligently waived his Miranda rights, was supported by the record. She got more clued in when he went on to ask if the issue of the constitutionality of the statute was raised in the trial court. Later, he asked if any of this was litigated by the trial court or reviewed by the court of appeals, and the prosecutor said it was not.
When did the defendant’s IQ come into play, asked Justice Pfeifer? Well beyond the suppression hearing? If so, doesn’t that bring in ineffective assistance of counsel?
If this comes up on ineffective assistance of counsel, is the court just back to square one, asked Chief Justice O’Connor?
How it Looks From the Bleachers
To Professor Bettman
I have no doubt that all the justices who spoke except Justice O’Donnell clearly feel this defendant did not knowingly, voluntarily and intelligently waive his Miranda rights. His age, IQ, the time of night of the questioning, absence of a parent, and his lack of understanding of what a lawyer even is militate against that. But the problem is what exactly was raised below and what is now before the court.
The court seemingly accepted the case on whether the statutory presumption of voluntariness under R.C. 2933.81(B) violates due process as applied to a child, but both counsel agreed the trial court never applied that statute in making its ruling in the suppression hearing, nor, apparently, did the defendant raise this issue on appeal. The court of appeals, however, made it a part of its decision finding Barker’s statements were voluntarily made, which is the fly in this ointment. How that shakes out in the Supreme Court is going to be interesting. Personally, I don’t see how that statute can pass constitutional muster, especially as applied to a minor, but the court may well duck that issue completely as not being properly raised and preserved for appeal. If the court does decide to consider the statute, I think Justice French nailed it when she commented that although a recording can show lack of coercion, what is about a recording that shows voluntariness?
If the statute is set to one side, the court could still find, consistent with In Re CS, there was no voluntary, knowing, intelligent waiver in this case under the totality of the circumstances, IF all of those circumstances are properly before the court. But again, assuming the prosecutor is correct on this point, it sounds like none of the specific information about this particular defendant that was so clearly disturbing to Justices O’Neill, Pfeifer, French, and the Chief was brought up by trial counsel at the suppression hearing. Surely that would be grounds for an ineffective assistance of counsel finding, but that’s not before the high court at this point. Justice O’Donnell, always unsympathetic to special treatment for violent juvenile offenders, is likely to find a valid waiver here, or that Barker failed to raise any of this below.
In sum, a majority would like to find for the defense, but whether and how that can be done on this record is an interesting question.
One last thing-I found the Chief’s question about whether any court had approved some kind of special colloquy for juveniles quite interesting. This court hasn’t hesitated to go out on a limb for juveniles before.
To Student Contributor Michael Elliott
It sounds like the court is leaning in favor of Barker, with a majority of justices in favor of finding R.C. 2933.81(B) unconstitutional as it applies to juveniles.
Justices O’Neill and Chief Justice O’Connor seem to be strongly against a finding that Barker intelligently waived his rights. At the outset, Justice O’Neill challenged counsel for the state to find proof in the record that Barker made an intelligent decision to waive his rights, while the Chief Justice hinted that Barker could have easily been misled during interrogation. She questioned the prosecutor as to why no determination was made into whether he understood his rights, describing video recordings alone as “an ineffective method of determining… [that a waiver was made] knowingly and intelligently.” Justices French and Pfeifer questioned the justification for the voluntariness presumption in the statute, with Justice French asking, “What about a recording… makes this kid’s statements voluntary?”
There was much more that could have been done to assure that Barker fully understood his rights. They could have assured that Barker’s attorney was present, or at a bare minimum, brought in his parents. My bet is that the court is unwilling to allow lower courts to assume that juveniles understand and waive their Miranda rights simply because a waiver of those rights was electronically recorded.