Update: On June 7, 2018, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.  

“Your argument is if the police pay an informant, they control him. Isn’t the parallel if the state pays an employee they control him, also?”

Justice Fischer, to the Assistant Prosecutor

On February 13, 2018, the Supreme Court of Ohio heard oral argument in State of Ohio v. Demetrius Jackson, 2017-0145. At issue in this case is whether a suspect’s rights have been violated when he is questioned, without being informed of his Miranda rights, by a children’s services social worker who must report her findings to a law enforcement agency.

Case Background

Jackson was arrested for raping a fourteen-year-old girl. After his arrest, Jackson was advised of his Miranda rights by a Cleveland Police detective. While being held in the Cuyahoga County Jail, Jackson was interviewed by a social worker from the Cuyahoga County Division of Children and Family Services. The social worker did not advise Jackson of his Miranda rights. Jackson admitted to having what he claimed was consensual sex with the minor girl, who he thought was an adult.

At a bench trial, over Jackson’s objection, the judge allowed the social worker to testify as to Jackson’s statements from the interview. Jackson was convicted of rape and related offenses, and sentenced to eleven years in prison.

In a split decision, the Eighth District Court of Appeals reversed Jackson’s conviction, holding that the social worker was acting as an agent of law enforcement, had conducted a custodial interrogation, and should have advised Jackson of his Miranda rights.

Read the oral argument preview of the case here. 

Key Precedent

Fifth Amendment of the United States Constitution (“No person shall… be compelled in any criminal case to be a witness against himself…”)

Sixth Amendment of the United States Constitution (“In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…and to have the Assistance of Counsel for his defense.”)

R.C. 2901(A)(11) (Definition of “law enforcement officer”)

R.C. 2151.421 Reporting Child Abuse or Neglect

(G) (“the public children services agency shall investigate . . . each report of child abuse or child neglect . . . . The investigation shall be made in cooperation with the law enforcement agency . . . . A representative of the public children services agency shall, at the time of initial contact with the person subject to the investigation, inform the person of the specific complaints or allegations made against the person. The information shall be given in a manner that is consistent with division (I)(1) of this section and protects the rights of the person making the report under this section. . . . The public children services agency shall submit a report of its investigation, in writing, to the law enforcement agency.”)

Mathis v. United States, 391 U.S. 1(1968) (Defendant was convicted through the testimony of an IRS agent, attained while the defendant was incarcerated for another crime. The Court held that despite the IRS agent questioning the defendant on a matter unrelated to his being in custody, the obligations of Miranda still remained.)

Miranda v. Arizona, 384 U.S. 436 (1966) (“[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”)

State v. Bolan, 27 Ohio St.2d 15 (1971) (“[T]he duty of giving ‘Miranda warnings’ is limited to employees of government agencies whose function is to enforce law, or to those acting for such law enforcement agencies by direction of the agencies.”)

State v. Watson, 28 Ohio St.2d 15 (1971) (Defendant challenged the trial court’s refusal to suppress in-custody statements to a newspaper reporter. “The Miranda requirements do not apply when admissions otherwise admissible are given to persons who are not officers of the law or their agents. . . . Although defendant was in custody, the statement in question was not the result of ‘questioning initiated by law enforcement officers.’ Therefore, it is of no consequence that the statement might have been influenced by earlier statements made by defendant to the police.”)

Estelle v. Smith, 101 S.Ct. 1866 (1981) (Defendant held in custody was compelled by the court to submit to a ‘mental status examination’ performed by a court-appointed psychiatrist. The Court concluded that, “when faced while in custody with a court-ordered psychiatric inquiry, [defendant]’s statements . . . were not ‘given freely and voluntarily without any compelling influences’ and, as such, could be used . . . only if [defendant] had been apprised of his rights and had knowingly decided to waive them.”)

State v. Roberts, 32 Ohio St.3d 225 (1987) (“[S]tatements by an in-custody probationer to his probation officer are inadmissible in a subsequent criminal trial, where prior to questioning, the probation officer failed to advise the probationer of his Miranda rights as required by Section 10, Article I of the Ohio Constitution and by the Fifth and Fourteenth Amendments to the United States Constitution.”)

Ohio v. Clark, 135 S.Ct. 2173 (2015) (“[M]andatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution.”)

At Oral Argument

The New Seating Chart

Every time a new justice joins the court, the seating arrangement changes. This is the first blog post on a case in which Justice DeGenaro participated.  So, as she has the least seniority, she now sits on the end where Justice DeWine had been sitting. Facing the bench, as if arguing, the configuration is now Justice DeWine, French, O’Donnell, the Chief, then Justices Kennedy, Fischer, and DeGenaro.

Arguing Counsel

Anthony T. Miranda, Assistant Prosecutor, Cuyahoga County, for Appellant State of Ohio

Jonathan N. Garver, Cleveland, for Appellee Demetrius Jackson

State’s Argument

A social worker’s statutory duty to share information with law enforcement does not transform her into an agent of law enforcement. The test, as previously articulated by this court, is whether the social worker is being controlled or directed by law enforcement. In this case, she was not.

The appellate decision finding no legitimate purpose for the social worker’s interview, other than to directly assist law enforcement in its investigation, was incorrect. It ignores the separate function that social workers serve, which is to substantiate abuse and neglect allegations. In this case, for example, the social worker learned after interviewing the defendant that he had contracted a sexually transmitted disease—at sentencing it was revealed that the 14 year old victim in this case had also contracted that disease.

The state asks the court to reject a bright-line rule and instead to adopt a test that considers all the facts surrounding a social worker’s interview of the defendant, which is a sounder approach than a bright-line rule.  Did the police set up the interview between the social worker and the defendant? Were the police present during the interview? Were they providing the questions to be asked?

The U.S. Supreme Court decision in Ohio v. Clark, while dealing with Sixth Amendment issues, is persuasive on these issues as well. There, the Court rejected the bright line rule that a teacher, because of a teacher’s mandatory reporting obligation, is an agent of law enforcement for purposes of the Confrontation Clause.  That is strong evidence to reject a bright-line rule in this case.

The concerns about coercion present in Miranda are not present in this situation.  The social worker did not have the power to arrest the defendant, there is no evidence in the record that she had the power to detain him beyond his wishes, or keep him in the room. Here, the social worker informed Jackson of the allegations, and asked him if he had anything to say, which suggests nothing more than a voluntary exchange of information.

Nor are the informant line of cases from the U.S. Supreme Court dispositive of these issues. They differ from this case in two important ways. First, an informant is paid by police, which is a level of direction and control between informant and police not found here. And second is the surreptitious nature of the conversations in those cases, not found in this case.

The state asks the court to adopt the test that considers all of the facts surrounding the social worker’s interview, and find there is no evidence of direction or control by police in this case.

Jackson’s Argument

Miranda both meets the legitimate needs of law enforcement and protects the interests of the accused. So, requiring children’s services investigators—who are, after all, state actors–to advise an accused of his Miranda rights will not prevent them from performing their job any more than requiring police officers to give those warnings has prevented them from doing theirs.

The court of appeals should be affirmed for two reasons. The first involves the existence of a mutual agency relationship between the children’s services agencies and law enforcement. The second deals with other considerations that were deemed important by the U.S. Supreme Court under Miranda.

Even under Ohio v. Clark, albeit in a Sixth Amendment context, the U.S. Supreme Court did not hold that private citizens are not agents of law enforcement under any and all circumstances. In Clark, what the Court held was that in determining whether an out-of-court statement is testimonial for purposes of the Confrontation Clause, Ohio’s mandatory reporting statute does not convert a private citizen, like the pre-school teacher in that case, into an agent of law enforcement. Here, however, in this context we are dealing with a state actor, not a private citizen.

A number of statutes affecting children’s service agencies other than the mandatory reporting statute come into play here, including those requiring the starting of an investigation within 24 hours, sharing the reports of its investigation with the police, and requiring children’s service agencies to enter into a memorandum with law enforcement and the local prosecutor setting forth the normal operating procedure to be employed by all concerned officials. Other statutes address the creation of a child’s advocacy center, use of a multi-disciplinary team, and establishing protocols and procedures for any and all referrals and investigations, and coordinating all these activities. So in this situation a mutual agency relationship has been established, much like the agency relationship that exists in a partnership. That mutual agency relationship is created by statutorily-mandated institutional relationships. So, there is no need to ask whether a police officer made a specific request of the agency to conduct this investigation, because the law requires it.

The other concern addressed in Miranda was the coercive nature of police questioning in a custodial interrogation. Here, the only function of the children’s service investigator is to interrogate alleged perpetrators. Since that is her only function, presumably she is just as trained and capable of interrogating a suspect as a police officer. Thus, the social worker in this case is an agent of law enforcement under the ambit of Miranda.

Finally, the possibility that exculpatory information might be revealed during an interrogation like this one does not negate the necessity for giving the accused Miranda warnings. In this case, it is likely the revelation of what might be described as exculpatory evidence put pressure on the defendant to testify at trial.

What Was On Their Minds

Ohio v. Clark

Doesn’t Ohio v. Clark tell us that just the fact that there is mandatory reporting doesn’t transform the person who has to report into an agent of law enforcement, asked Justice DeWine? Why would that be any different here?

Social Workers

Is there case law where a social worker in this kind of situation has been found to be an agent of law enforcement, asked Justice O’Donnell? Is there any case that holds that a social worker is an agent of law enforcement?

Isn’t the purpose of the investigation what is at issue here, asked Justice DeWine? Is this the functional equivalent of a police interrogation?

This Social Worker

Was the testimony clear enough about what the social worker in this case actually said to this defendant, asked Justice French, commenting that the trial court seemed to have trouble with what this social worker actually said to this defendant as opposed to what she does as a matter of protocol. Didn’t that have the consequence of forcing the defendant to testify in this case? Would he have testified were it not for the social worker’s testimony?

Isn’t the social worker paid by the state, asked Justice Fischer?

Isn’t questioning by a social worker more concerning for Fifth and Sixth Amendment purposes because it seems so unofficial, asked Justice DeGenaro? Didn’t Mr. Jackson refuse to speak to the detective after he was Mirandized, and then five days later the social worker showed up at the jail to interview him, where she indicated that her primary duty is to interview alleged perpetrators in a jail?

Is it the defense position that this social worker had a duty to advise of the Miranda warnings, asked Justice O’Donnell? (answer: yes)

Doesn’t the social worker need to know what’s going on in the home, and who may have allowed this, and other things the state should be concerned about, asked Justice DeWine? Isn’t this interview required to determine whether to remove the child from the home, and those sorts of things?

Wasn’t some of the information given to the social worker exculpatory, asked Chief Justice O’Connor? But there wasn’t any indication that Mr. Jackson changed his defense?

Law Enforcement

Is the social worker’s obligation to share information with law enforcement based on subpoena, asked Chief Justice O’Connor? (answer: no, it is statutory)

What Should Happen with this Appeal

If the court were to agree with the state that there needs to be some kind of multi-factored test in this situation, can the court apply it and decide it or must it go back to the appeals court, asked Justice Fischer? (answer: this court should apply the factors)

If the court does agree with the state, doesn’t the case have to go back to the appeals court to decide the other issues mooted by its disposition of the case, asked Justice O’Donnell? (state’s answer, yes, but after finding the social worker is not an agent of law enforcement here.)(Professor’s Note-the issues mooted were an evidentiary challenge to allowing the police officer to testify that the victim told him she had been raped, and that the conviction in this case was against the manifest weight of the evidence.)

How It Looks From The Bleachers

To Professor Emerita Bettman

To me this is a much closer question than Clark, because the social worker/child advocate in this case, unlike the teacher in Clark, is a state actor, and I thought Mr. Garver made a very effective argument about the institutional co-ordination and cooperation between the children’s services agency, the police, and the prosecution. Whether that is enough to swing four justices is another matter.

Justice O’Donnell was the author of State v. Clark, 2013-Ohio-4731, in which the Supreme Court of Ohio held, in a Sixth Amendment context, that the primary purpose of  questioning by teachers of a child victim of abuse was to gather evidence for a subsequent criminal prosecution, so statements of the child identifying his abuser could not be admitted through the teachers at trial. Joining O’Donnell were Justices Pfeifer, Kennedy and O’Neill.  That decision was unanimously overruled by the U.S. Supreme Court in  Ohio v. Clark, 135 S.Ct. 2173 (2015).  That might make O’Donnell gun-shy about buying the defense argument in this Fifth Amendment context. He kept pressing Mr. Garver for cases finding a social worker to be an agent of law enforcement. The Chief generally has been very protective of children, so their interests always trump with her. I’m putting her solidly in the state’s corner. Justice DeGenaro’s questions seemed most sympathetic to the defense position, which I think is a strong one, but I’m going to disagree with student contributor Mark Tassone, and call this for the state, even though I wouldn’t vote that way.

Justice O’Donnell’s question to Mr. Garver about cases finding social workers to be agents of law enforcement caused me to go back and review the Court’s 2010 decision in State v. Arnold, another Sixth Amendment case, which involved statements made by a child rape victim to a social worker at a child-advocacy center. The court in that 4-2 decision (then-Chief Justice Eric Brown did not participate in the case) got into a heated disagreement about whether the social worker in that case was an agent of law enforcement. The social worker was operating in a dual capacity as both a forensic interviewer collecting information for use by the police, and a medical interviewer getting information for diagnosis and treatment.

Then-Justice O’Connor, writing the majority opinion, found the statements made by the child about her father’s actions leading up to the rape were primarily forensic, and thus testimonial and inadmissible, but the statements describing the acts performed by her father were necessary to diagnose and medically treat the child. Those statements were nontestimonial, and were admissible. Justices Pfeifer and O’Donnell strongly disagreed in dissent, finding the social worker to be an agent of law enforcement the whole time.

To Student Contributor Mark Tassone

I cannot say this was among the more lively oral arguments I’ve witnessed.

The state’s argument seemed stagnant and flat. However, the state did make important points in justifying its interest in having social workers involved during alleged abuses of children (the possibility of sexually transmitted diseases as well as the possibility of the child being returned to a potentially compliant and unsafe guardian).

The Chief Justice’s question right out of the gate whether the reporting was done through subpoena or statute may have tipped her hand in Jackson’s favor.

However, the prosecutor did seem to bounce back by pointing out that there is no evidence that the social worker in question ever spoke to the police. Thus, the state attempted to draw a distinct line between this case and other Sixth Amendment cases.

The string of questions at the close of the state’s arguments demonstrate a likelihood of remand.

Jackson emphasized the relationship between the state agencies. I thought Jackson’s description of an “institutional arrangement” was his best swing for the fences. However, Jackson failed to answer Justice O’Donnell’s question pinning down a case in which a social worker has been found to be an agent of law enforcement. And I believe Jackson missed a real opportunity for a home-run.

On the whole, this was certainly not the warmest bench I’ve seen. However, my sense is that the court is very concerned by the state’s reporting requirement. And I foresee the court finding in Jackson’s favor with a remand to determine the unaddressed issues in the Eighth District’s decision.