A Presumptive In-Custody Analysis to Police-Conducted School Interrogations

By Sally Terry Green*

Volume 40.2

*Associate Professor, Thurgood Marshall School of Law, Texas Southern University; J.D., 1990, Tulane University Law School, New Orleans, Louisiana; B.A., 1987, Stanford University, Stanford, California.


A child and his parent anticipate an array of experiences that the child might encounter on any given school day.  Some experiences are beyond their reasonable expectation.  For instance, being subjected to police questioning incident to an active police investigation is not usually within the scope of educational experiences that either the parent or the child would anticipate.  Nevertheless, police questioning in the schoolhouse is becoming more common as the incidents of crimes committed by children increase.[1]  Because police investigations increasingly involve interrogation of child suspects in schools, consideration for their constitutional rights is crucial.  While the constitutional protections afforded by the United States Supreme Court in Miranda v. Arizona[2] have provided protection for adults against self-incrimination, the custodial analysis has not always afforded the same to child suspects.[3]  Specifically, the reasonable person’s belief that he or she is free to leave police-initiated interrogations is not qualitatively the same for a child suspect.[4]  The special circumstances presented by the school setting further complicate the determination of what a reasonable child suspect believes when confronted with police questioning.[5]  Children will not likely assess the legal consequences of making statements to the police.[6]

Additionally, the risk of self-incrimination and the evolution of legal jurisprudence relevant to false confessions foundationally explain how even children who commit crimes are incapable of fully understanding the consequences of their actions.[7]  State statutes generally provide age limits[8] when determining a child’s ability to comprehend his or her constitutional rights under the Fifth Amendment, as well as the child’s ability to knowingly waive them.[9]  Age limits are especially important when children operate under the false perception that they are not under the authority of the police, as in school interrogation situations.[10]  The United States Supreme Court addressed application of the Miranda custody analysis in its recent ruling, J.D.B. v. North Carolina,[11] where the Court determined that “age may indeed be relevant” when affording children Fifth Amendment protections against self-incrimination during police-conducted school interrogation.[12]  Certainly, age is relevant when determining whether it is cruel and unusual punishment to impose the death penalty on juveniles or to impose life without parole sentencing[13] based on the legally recognized theory of diminished culpability.[14]  The Court’s age-is-relevant ruling, however, does not sufficiently protect children during in-school interrogations where they might operate under the false perception that their statements and actions are not made under the authority of the police.[15]  The States should therefore adopt a presumptive in-custody determination that eliminates the two-step totality of circumstances and reasonable child test.[16]  Each state should amend its juvenile Miranda statute[17] or adult Miranda statute, as the case may be, to include a presumption that children should be provided Miranda warnings when questioned in the school setting.[18]  The police authorities may interview children at school, but no statement made to the police can be admissible under the proposed presumption unless it is made in the presence of a parent, guardian or attorney.  In effect, the child suspect would have to be escorted to the police station since a parent, guardian or attorney is not likely to be present at the school.  While in the presence of a parent, guardian or attorney, the police can provide proper Miranda warnings to the child suspect before any statements can be admitted into evidence or any determinations are made regarding the waiver of rights.  By amending statutes to include a presumption that a child is in custody,[19] the states would extend a heightened level of constitutional protection that is necessary given the enhanced risk of false statements made in the school setting.[20]

The United States Supreme Court’s jurisprudence has recognized a heightened risk of coercion and subsequent false confessions by juveniles during interrogation, yet the J.D.B. Court held that considering age as a relevant factor is enough to address these risks.[21]  In the school interrogation context, obtaining a knowing, intelligent, and voluntary confession is inextricably linked to the custodial interrogation analysis.  Consequently, the law addressing the voluntariness of confessions must necessarily be considered when applying legal protections to children in the school setting.[22]  This Article will address how school interrogations substantially amount to a “custodial interrogation” and how the reasonable child test supports the adoption of a presumptive in-custody approach.

Part IIprovides a case summary of the J.D.B. opinion.  Part III explains the long-standing U.S. Supreme Court jurisprudence that articulates constitutional standards for protecting juveniles from self-incrimination.  The reasonable-person standard determines whether the suspect is in custody for Miranda purposes, and the totality-of-circumstances test considers the immaturity of the child and other relevant factors.[23]  The totality of circumstances in the school setting presumptively amounts to in-custody interrogation for Miranda purposes.[24]  Part IVargues that the totality of circumstances in police-conducted school interrogations uniquely compels the reasonable child to make potentially false statements.  Accordingly, the States’ juvenile Miranda statutes provide the appropriate forum for ensuring that juvenile suspects receive adequate protection when the police interrogate them at school.  Part V reviews Texas and other state statutes and case law that support the adoption of a presumptive in-custody approach.  The following case summary provides context for the relevant issues surrounding school interrogations.

[1].Children often do not sufficiently understand the gravity of their potentially criminal actions, as well as the constitutional rights afforded them under the law.  Trey Meyer, Testing the Validity of Confessions and Waivers of the Self-Incrimination Privilege in the Juvenile Courts, 47 U. Kan. L. Rev. 1037, 1050–51 (1999); see also Meg Penrose, Miranda, Please Report to the Principal’s Office, 33 Fordham Urb. L.J. 775, 785–88 (2006); Stephanie Forbes, Reading, Writing, and Interrogating: Providing Miranda Warnings to Students in Schoolhouse Interrogations, 47 Ct. Rev. 68, 68 (2011); Lee Remington, Note, The Ghost of Columbine and the Miranda Doctrine: Student Interrogations in a School Setting, 41 Brandeis L.J. 373, 373–75 (2002).

[2].384 U.S. 436 (1966).

[3].See Pamela M. Henry-Mays, Farewell Michael C., Hello Gault: Considering the Miranda Rights of Learning Disabled Children, 34 N. Ky. L. Rev. 343, 343–44 (2007) (arguing that adults are sufficiently apprised of their Fifth Amendment protections when Miranda warnings are given,and noting that the U.S. Supreme Court in “In re Gault recognized that children required special consideration when under interrogation because theycould be overwhelmed by the will of an adult”).

[4].See infra notes 36–48 and accompanying text.

[5].See Henry-Mays, supra note 3, at 357(“[J]uveniles have great difficulty foreseeing what waiver of their Miranda rights may mean to them in the future.  When asked about their reasons for waiving their rights, most juveniles were more concerned with their immediate detention or release.”).

[6].Id. at 349–50.

[7].State v. Benoit, 490 A.2d 295, 300 (N.H. 1985) (discussing studies showing the failure of juveniles to fully comprehend the substance and significance of waiving their constitutional rights).

[8].See, e.g., N.M. Stat. Ann. § 32A-2-14 (2010); Conn. Gen. Stat. § 46b-137(c) (Supp. 2012).

[9].Meyer, supra note 1, at 1051.

[10].The lines between school officials’ authority and the local police authority have been blurred in cases where the validity of a child suspect’s confession made to the school administration is challenged.  See State v. Tinkham, 719 A.2d 580, 584 (N.H. 1998) (holding that the principal was not operating as a law enforcement officer or an agent of the police when he obtained a child’s confession regarding possession of marijuana).  States have litigated the issue of agency relationships between the police and school authorities in the context of such school interrogations.  Paul Holland, Schooling Miranda: Policing Interrogation in the Twenty-First Century Schoolhouse, 52 Loy. L. Rev. 39, 61 (2006).  A critical distinction must be made between a school “importing” local police authority versus a law enforcement agency “exporting” local authority to the school.  Id. at 73.  Officers who are hired by the school are generally not required to provide Miranda warnings.  See Peter Price, Comment, When is a Police Officer an Officer of the Law?: The Status of Police Officers in Schools, 99 J. Crim. L. & Criminology 541, 551 (2009); see also Farmer v. State, 275 S.E.2d 774, 776 (1980).

[11].131 S. Ct. 2394 (2011).

[12].Id. at 2405.  The Court considered the issue of age and other psychological factors impacting the child’s mindset to be irrelevant in its precedent case, Yarborough v. Alvarado, 541 U.S. 652 (2004).  In Alvarado, these factors were considered as subjective rather than objective.  Id. at 668.  However, in J.D.B., the Court views its ruling as consistent with Alvarado by stating that age is different because it does not involve a subjective determination about the mindset of the child.  J.D.B., 131 S. Ct. at 2404.

[13].Graham v. Florida, 130 S. Ct. 2011, 2016 (2010).

[14].Id. at 2038 (Roberts, C.J., concurring); see Henry-Mays, supra note 3, at 350 (“Children are different from adults with low intelligence as they lack the worldly experience and the knowledge time will bring.”).

[15].Indeed, even courts have wrestled with the issue of whether police in the school setting are acting in their capacity as police or as “school officials.”  See Remington, supra note 1, at 379–80 (“[C]ourts across the nation have been confused as to which standard applies when police officers, such as on-site school resource officers or officers acting on behalf of school authorities, conduct searches or seizures of students on school grounds.  Courts have had to determine whether police officers are to be considered as ‘school officials’ and therefore allowed to conduct searches and seizures based upon the lesser standard of ‘reasonable suspicion.’”).

[16].See J.D.B., 131 S. Ct. at 2402.  The Court describes two independent questions used to determine whether a suspect is in custody:  “[F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave.”  Id.  If “in custody,” the child is entitled to the Miranda warnings, which are pivotal to the child’s protection under the Constitution.  Id.  However, the Court regards the child’s ability to comprehend the warning when given as without merit if the circumstances do not amount to a custodial interrogation.  Id. at 2401.

[17].See, e.g., N.C. Gen. Stat. § 7B-2101 (2011) (requiring that juveniles be Mirandized before questioning when in custody, and prohibiting the use of a confession from a minor under 14 years old unless a guardian or attorney is present).

[18].In Minnesota, a juvenile is afforded the same protections against self-incrimination as an adult.  Minn. R. Juv. Del. P. 5.07 subd. 3. (“At the beginning of the detention hearing, the court shall advise all persons present of: (A) the reasons why the child was taken into custody; (B) the allegations of the charging document; (C) the purpose and scope of the detention hearing; (D) the right of the child to be represented by counsel at the detention hearing and at every other stage of the proceedings, and the right of a child alleged to be delinquent to counsel at public expense; and (E) the right of the child to remain silent.”).  Similarly, a juvenile in Washington is also protected against self-incrimination.  Wash. Rev. Code  § 13.40.140(8) (2004).

[19].For examples of statutes that give constitutional protections to juveniles in custody, see Colo. Rev. Stat. § 19-2-511 (2005); Conn. Gen. Stat. § 46b-137(c) (Supp. 2012); Ga. Code Ann. § 15-11-7 (2012); N.M. Stat. Ann. § 32A-2-14 (2010); N.C. Gen. Stat. § 7B-2101 (2011); Wash. Rev. Code § 13.40.140 (2004).

[20].See Henry-Mays, supra note 3, at 357 (discussing how a child does not anticipate the impact of statements made to the police, or the long-term consequences of a waiver of rights, thereby leading to high rates of false confessions).

[21].J.D.B., 131 S. Ct. at 2401–02; see also Stansbury v. California, 511 U.S. 318, 322–25 (1994) (discussing the inquiry necessary to determine whether an individual is in custody and therefore entitled to Miranda warnings).

[22].See Meyer, supra note 1, at 1048(commenting on the use of a totality of circumstances test by federal courts and state courts to evaluate the admissibility of a custodial statement under the due process standard).

[23].See infra Part III.

[24].See infra Part III–IV.

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