“How do you discern whether a child makes a voluntary statement?”

Justice Stewart, to the Assistant Prosecutor

 “How do you think the age of this defendant weighs in here in the totality of the circumstances?”

 Chief Justice O’Connor, to the Deputy Solicitor General

 On April 29, 2020, the Supreme Court of Ohio heard oral argument in In re: M.H., 2019-0621. At issue in this case is whether a juvenile’s confession was involuntarily made and should be suppressed.

Case Background

On December 2, 2015, in response to a referral to the Cuyahoga County Department of Children and Family Services (“CCDCFS”) regarding an alleged rape, a CCDCFS social worker interviewed M.H., a thirteen-year-old child. During the interview, M.H. admitted that he had had sex with his twelve-year-old “half-sister.”

Before the interview, M.H.’s mother did not know the reason for the interview but had some suspicions about what was going on. M.H.’s mother drove M.H. to the interview, which took place inside a government building. When they arrived, the social worker took M.H. to a private room where she interviewed him for forty minutes. Other than the social worker and M.H., no one else was present inside that room.

On August 24, 2016, M.H. was charged in Juvenile Court with two counts of rape and two counts of gross sexual imposition. The State filed a motion in limine to use M.H.’s admissions from the interview. M.H. filed a motion to suppress his statements. The trial court granted M.H.’s motion to suppress.

The Appeal

In a split decision the Eighth District Court of Appeals reversed the trial court’s decision to suppress M.H.’s statements made to the social worker. In so holding, the majority, while acknowledging it found the totality of the circumstances here troubling, found that M.H. was not subjected to custodial interrogation as contemplated by Miranda. First, the court ruled that the social worker was not an agent of law enforcement. Second, the court found that M.H. was not in custody because he had not been restrained and a reasonable juvenile in his circumstances would have felt free to leave the interview. Additionally, the majority held that M.H.’s statements were freely and voluntarily made and therefore no due process violation had occurred.

The concurring judge wrote separately to express her concerns over the social worker’s role in this situation, and the information that a parent or guardian of a child suspected of a sex offense should receive. She would find that a reasonable person in the mother’s situation would not have understood the circumstances surrounding the interview. She also saw the potential for abuse by law enforcement in using social workers as their agents to obtain information they could not get so easily.

The dissenting judge would affirm the trial court’s judgment to suppress M.H.’s statements to the social worker because the social worker was acting as the functional equivalent of law enforcement, and further finding that credible evidence in the record suggested that M.H.’s due process rights had been violated and that his statements should be inadmissible.

Read the oral argument preview of the case here.

Key Precedent

*U.S. Constitution, Amendment V (“No person . . . shall be compelled in any criminal case to be a witness against himself . . .”)

*R.C. 2151.421 (A social worker who knows, or has reasonable cause to suspect, that a child has suffered or is threatened by any physical or mental abuse shall immediately report that knowledge to the appropriate authority.)

*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.”)

*In re Gault, 387 U.S. 1 (1967) (“If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.”)

*Mathis v. United States, 391 U.S. 1 (1968) (Statements made by an inmate to a government agent without being informed of Miranda rights are inadmissible.)

*State v. Bolan, 27 Ohio St.2d 15 (1971) (A social worker is an agent of law enforcement where the social worker acts under the direction or control of law enforcement.)

*State v. Gallagher, 38 Ohio St. 2d 291 (1974) (Statements made by parolee to parole officer about the parolee’s involvement in a crime without being given Miranda warnings violated the parolee’s privilege against self-incrimination.)

State v. Edwards, 49 Ohio St.2d 31 (1976) (When considering whether a statement was voluntarily given, courts should examine the totality of the circumstances, which include “the age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of interrogation; the existence of physical deprivation or mistreatment; and the existence of threat or inducement.”)

*State v. Barker, 53 Ohio St. 2d 135 (1978) (When an individual voluntarily comes to a sheriff’s office and is free to leave, and the officer never conveyed any intention to arrest the individual, the individual’s statements are considered voluntary and admissible.)

*Estelle v. Smith, 101 S.Ct. 1866 (1981)  (“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.”)

California v. Beheler, 463 U.S. 121 (1983) (The ultimate inquiry about whether a suspect was in custody at the time of the interrogation is whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.)

*State v. Clark, 38 Ohio St. 3d 252 (1988) (The right to counsel attaches “as soon as, but not before, adversary judicial proceedings between the state and the defendant begin ‘by way of indictment, information, arraignment, or preliminary hearing.’ Once the right attaches, police may not elicit statements from the accused that incriminate him as to the crime charged. However, ‘[i]ncriminating statements pertaining to other crimes, as to which the Sixth Amendment right to counsel has not yet attached, are, of course, admissible at a trial of those offenses.[O]nce the right to counsel has attached and been asserted by an accused, he may not be interrogated unless he initiates the conversation.”)

*In re Watson, 47 Ohio St. 3d 86 (1989) (Miranda does not require that a minor’s parents understand and waive the child’s constitutional rights.)

State v. Foust, 2004-Ohio-7006 (holding that Miranda requires that law enforcement officers and their agents inform a suspect that: (1) he has the right to remain silent; (2) his statements may be used against him at trial; (3) he has the right to have an attorney present during questioning; and (4) if he cannot afford an attorney, one will be appointed.)

State v. Hoffner, 2004-Ohio-3430 (In determining whether an individual is in custody for Miranda purposes, “courts must first inquire into the circumstances surrounding the questioning and second, given those circumstances, determine whether a reasonable person would have felt that he or she was not at liberty to terminate the interview and leave.”)

State v. Jones, 2004-Ohio-5205 (8th Dist.) (“[I]n certain circumstances a social worker may be required to provide Miranda warnings, i.e., when acting as an agent of the police.”)

State v. Coonrod, 2010-Ohio-1102 (12th Dist.) (“In general, Ohio courts have held that social workers have no duty to provide Miranda warnings because they are private individuals without the power to arrest.”)

*J.D.B. v. North Carolina, 564 U.S. 261 (2011) (Although a child’s age is not determinative in every case, a “child’s age properly informs Miranda’s custody analysis.”)

Howes v. Fields, 132 S.Ct. 1181 (2012) (In resolving the issue of custody, courts consider certain factors relevant to this determination: (1) the location of the questioning; (2) the duration of the questioning; (3) statements made during the interview; (4) the presence or absence of physical restraints; and (5) whether the individual was released at the end of the interview.)

*In re M.W., 2012-Ohio-4538 (2012) (“[A] juvenile does not have a statutory right to counsel at an interrogation conducted prior to the filing of a complaint or prior to appearing in juvenile court.”)

State v. Montague, 2012-Ohio-4285 (8th Dist.) (In determining whether there was a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest, the court must “examine the totality of the circumstances from the perspective of a reasonable person in the suspect’s position.”)

In re: R.S., 2014-Ohio-3543 (3rd Dist.) (“[A] juvenile’s age may be considered in the Miranda analysis, so long as the juvenile’s age was known to the officer at the time of questioning or would have been objectively apparent to a reasonable officer. . . . While a juvenile’s age may be considered in the Miranda custody analysis, the Supreme Court cautioned that this does not mean that a child’s age will be a determinative, or even a significant, factor in every case.”)

State v. Johnson, 2016-Ohio-7266 (12th Dist.) (“The Due Process Clause requires an inquiry, separate from custody considerations, concerning whether a defendant’s will was overborne by the circumstances surrounding the giving of his confession.”)

In the matter of: D.B., 2018-Ohio-1247 (10th Dist.) (holding that factors suggesting no custodial interrogation include the interview being conducted at a social services station rather than police station, an unlocked room, and the juvenile leaves with a parent.)

*State v. Jackson, 2018-Ohio-2169 (“[T]he Miranda requirements do not apply to admissions made to persons who are not officers of the law or their agents,” even if an individual’s efforts aid in law enforcement.)

*Relied on by counsel during oral argument

At Oral Argument

Arguing Counsel

Paul A. Kuzmins, Office of the Public Defender, Cuyahoga County, for Appellant, M.H.

Jennifer M. Meyer, Assistant Prosecuting Attorney, Cuyahoga County, for Appellee State of Ohio

Samuel C. Peterson, Deputy Solicitor General, Office of the Ohio Attorney General, as amicus in support of the State of Ohio

M.H.’s Argument

As the U.S. Supreme Court said in In Re Gault, in discussing constitutional rights of juveniles and statements made by juveniles without the assistance of counsel, great care must be taken to make sure that statements and admissions were not the product of coercion or suggestion, and not the product of ignorance of rights or fright, adolescent fantasy, or despair. Yet that is exactly what we have in this case. A 13-year-old child was driven to an unfamiliar building with unfamiliar surroundings by his mother, then separated from his mother, and told that there was going to be a private conversation which took place in a room with closed doors.  This child was not told the nature or purpose of the questioning nor was he ever informed of any constitutional rights or that he had the right to walk away and not answer any questions. This case thus presents the question of whether statements made by this child under these circumstances were coerced or suggested or a product of the ignorance of his rights.

Two different areas of the law overlap in this case. There are Fifth Amendment issues, and whether Miranda warnings should have been given, but there is also a due process component, whether these statements were made of the child’s free will.

This Court’s recent decision in Jackson does not set forth the exclusive test for determining when a state actor like the social worker in this case is acting at the behest of law enforcement. Having some sort of control over the investigation is only part of the equation. The statute in this case requires not only mandatory reporting, but also mandatory investigation, which is done in connection and cooperation with law enforcement.  In this case, the detective did not do any formal kind of investigation. It was the social worker who instructed the alleged victim to file a police report and then interviewed that child’s mother. The social worker here did the entire investigation, which is a distinction from what happened in Jackson.

This Court’s decision in Roberts is instructive. Roberts involved questioning by a probation officer, involving a relationship built on trust. That trust can be ripe for abuse not unlike the trusting relationship here with M.H.’s mother who turned M.H. over to the social worker who had informed her this was going to be a private meeting. In Roberts, this Court also recognized that one of the overarching principles in Miranda is to protect against the appearance of deception. This case was ripe with deception, beginning with the social worker’s deception with M.H.’s mother and continuing through her lack of candor with M.H. in the case.

In Gallagher this Court also found that a parole officer interviewing somebody on parole needs to give Miranda warnings. The Court discusses the heavy psychological pressure placed on an adult parolee by this unique relationship.  There is a trusting relationship just as there is with the probation office, and oftentimes the parolee may think that his or her comments to the parole officer are confidential.

In this situation, the social worker assured M.H.’s mother this was a private conversation. M.H.’s mother said she had some inkling of what was going on. She said she knew what the allegations had been. But there’s no evidence that she knew this was a criminal investigation. She is steadfast in her insistence that she was never told by the social worker what this was about, although the social worker has a different story.

The U.S. Supreme Court decision in Mathis is also instructive. So, Jackson is not the final word on all of the tests; it’s not the exclusive test for when Miranda warnings must be given.

Finally, DJB informs how due process should be applied. In that case the U.S. Supreme Court held it is beyond dispute that a juvenile is unlikely to feel free to leave and terminate an interrogation. That informs the voluntariness of any interactions between an interrogator and a juvenile.  While the state keeps referring to a lack of coercion here, it is the psychological vulnerability of children that is in play. There is no need for coercion in interrogating a child. Children are prone to comply with authority figures, they are prone to listening, they are apt to give up their rights because they don’t know their rights even when they are informed of them. So, you don’t need a rubber hose as suggested by the government in order to have a due process violation in interrogating children.   

But even following the test that is announced in Jackson, this case is different in many regards. In this case, the social worker did the entire investigation unlike in Jackson, where the detective went to interview Jackson in jail and then 5 days later the social worker went in. Jackson involved two parallel investigations, while this case involved a single investigation. In this case, there was also an exchange of voicemails between the detective and the social worker. But equally important is the fact that the Memorandum of Understanding between law enforcement and CCDCFS mandates that if law enforcement wants to be solely in charge of interviewing any alleged perpetrators, they must so advise CCDCFS within 10 days.

Jackson makes it unequivocally clear that the statute that requires cooperative investigations and requires mandatory reporting does not automatically put this under the purview of the Fifth Amendment. But Jackson encourages gamesmanship in situations where the government can get an unwarned statement through a social worker it could not get otherwise. Social workers often have dual purposes. In this case, the second justification, to create a safety plan, is dubious at best because M.H. wasn’t interviewed for several months. What does a 13-year-old child in that situation have to do with a safety plan? Those are questions better served for the adults in that child’s life than the child. The overarching reason for the social worker’s investigation here was in fact the criminal investigation.

State’s Argument

(The state shared its oral argument time with its amicus, the Office of the Ohio Attorney General)

M.H.’s statements to the social worker should not be suppressed. There is no agency relationship between the social worker and the police.  R.C. 2151.421(F)(1) does not create such an agency relationship. This Court has already held that the statutory requirement under 2151.421 is not sufficient in itself to create an agency relationship. There must be other factors that create an agency relationship between law enforcement officers and the social worker. If the law enforcement officer had called the social worker and asked her to talk with M.H. about specifics, that would be at the direction and control.  But that was not the case here. The police were not even aware at the time that the social worker had already interviewed the victim and that she had also interviewed M.H. So there’s no evidence in the record that law enforcement influenced or directed or controlled the social worker.

There is no evidence that the officers had direct control or advised the social worker in her investigation. The record contains evidence to the contrary. There was not a custodial interrogation by the social worker.  M.H. was driven to the center by his mother, not by law enforcement officers. There was no police presence at the time.  M.H. was not coerced by the social worker.  He was not under arrest. Even after his admission, he was still not under arrest. He was free to leave.

The social worker did testify that she did not tell M.H. why he was there or that he was free to leave. Instead, she decided to take a friendly approach in the conversation with M.H., which is another example of why this wasn’t coerced in any sort of way.

The totality of the circumstances test controls here. The fact that the individual being questioned is a minor is one of the factors, but not one of the determining factors. The interview was only 40 minutes, which has been determined not to be lengthy.  Nor was the interview intense. M.H. did not have to be told specifically that he could leave. The letter his mother had received made it clear the conversation was voluntary. When the social worker spoke to M.H.’s mother, the social worker also made it clear this was voluntary, but that she wanted to talk to M.H. M.H.’s mother said that she would bring him down the next day. The social worker did not make any threat of violence, coercion, or state that M.H. was going to be arrested. The social worker asked M.H. if he was sexually active, and he said yes. She did not say, did you do this to the victim?  When she asked with whom he had been sexually active, he then named the victim. Those were voluntary statements, not statements coerced by the social worker.

The Roberts and Gallagher cases are distinguishable because those cases involve parole officers. The individuals in those cases were already under arrest at the time. That was not the case here. M.H. was not under arrest. He was not even arrested after his admission. According to the record, M.H.’s mother did know about the allegations. Initially she said didn’t know anything about the allegations, but then she backtracked and said she did know, because the victim’s mother had told her. According to the social worker, there was quite a lengthy conversation between M.H.’s mother and the social worker before M.H.’s mother brought him down.

Attorney General’s Argument

The Jackson decision is not incomplete, as M.H.’s counsel suggests. The syllabus of Jackson is unequivocal.  It says that the statutory duty to cooperate and share information with law enforcement does not make the social worker an agent of law enforcement. There must be other evidence that demonstrates that the social worker acted at the direction and control of law enforcement.

If the Court wishes to adopt M.H.’s reading of Miranda, it must overrule Jackson. Jackson has already distinguished cases like Roberts, Estelle, and Mathis.  Jackson, which was also a sex abuse case, has already addressed the obligation to share information between social workers and law enforcement. So those statutory obligations and memorandums of understanding, were all already addressed in Jackson. M.H.’s argument here would necessarily conflict with Jackson.

In this case, there is no evidence of coordination or communication that occurred after M.H. was interviewed. The social worker did not say she was seeking to do a criminal investigation.  She simply articulated what her job was and then what her statutory duty was which was to convey anything criminal to law enforcement. That does not mean she has a law enforcement purpose. 

Turning to the due process clause and the voluntariness questions, what is needed to find an involuntary statement is something above and beyond Miranda. This Court in 1988, in State v. Clark, listed such things as physical abuse, threats, deprivation of food, medical treatment or sleep. More recently, in State v. Barker, the Court talked about the totality of the circumstances test, the same totality of the circumstances test the Court adopted in In Re Watson in 1989.  That test already accounts for age, but it also looks to physical deprivation or mistreatment and the existence of threat or inducement. JDB did not change this test. There was widespread agreement in JDB that age is a relevant consideration under the due process clause and under the totality of the circumstances test. The only question was whether age could also be a factor for Miranda and the custodial analysis. The majority said yes, age did matter for Miranda, the dissent said no it shouldn’t, but both agreed that the due process clause already accounts for age and this Court said the same thing in Barker.

Age is certainly something that must be considered, but the appeals court did consider it in this case. In their Miranda analysis for example, they gave great weight to M.H.’s age, but said there was no allegation, let alone evidence, of threats or the type of intimidation that goes with an involuntary statement.  A statement cannot be involuntary just because its custodial. That would render every interview with a juvenile inadmissible, even when Miranda was applied, and properly followed, so that cannot be the test.

The court of appeals should be affirmed. M.H.’s statement is not barred either by the Fifth Amendment and Miranda or by the Fourteenth Amendment and the Due Process Clause. What a social worker must say to a juvenile or when juvenile statements must be barred when made to a social worker are public policy questions best left to the General Assembly.

What Was On Their Minds

Jackson

Would we necessarily have to overrule Jackson, asked Justice Donnelly? Couldn’t we look at just the facts in this particular case and come to the same conclusion that the dissenting judge did–that in this case the sole purpose of the questioning was to determine whether or not some inappropriate sexual behavior happened between the two of them and if anything criminal happened to then pass that on to law enforcement? It wasn’t like a situation where the two were in the house and the immediate priority for the social worker was an overall safety issue, he commented.  The social worker just wanted to find out what happened and, if criminal, pass it over.

Interaction Between Social Worker and Police

Isn’t a preliminary issue whether the social worker in this case was an agent of law enforcement, asked Justice Fischer?

Wasn’t the social worker mandated to give her report to the police, asked Chief Justice O’Connor? Which she did? But the detective didn’t question M.H., correct? So, every time a social worker interviews someone in a situation where there is potential criminal activity, even though they are mandated to turn that report over to the police, they are an agent of the police? Has this Court ever found that?

If the detective had done some investigation after getting the social worker’s report, would that have made a difference, asked Justice Stewart? Wasn’t there was an understanding that the social worker would supply the police officers with whatever she got from her investigation? So why does it matter that the social worker wasn’t controlled by law enforcement?

Mother’s Involvement and Understanding of the Situation

Did the mother know what the subject of the conversation was going to be about, asked Chief Justice O’Connor? Did the social worker tell the mother that this sexual activity was illegal?

M.H.’s Understanding of the Situation

Was M.H. ever explicitly told we are here to talk, you can leave at any time, asked Chief Justice O’Connor? How should he know that? Did his mother tell him? Nothing in the record supports that, does it? Shouldn’t a social worker tell anybody they are discussing potential criminal activity with that he or she is free to leave?

When we look at voluntariness, there must be an understanding that the person has an option not to say anything, noted Justice Stewart.  Is there any evidence that M.H. was told he did not have to talk to the social worker or answer any of her questions, or that he could have his mother with him?

Totality of the Circumstances Test

How does M.H.’s age weigh here in the totality of the circumstances, asked Chief Justice O’Connor? If the social worker never says, to the child or the mother, you are free to go at any time, you are not mandated to come in here and talk with me, if that is never mentioned to them, does that factor into the totality of the circumstances?

How it Looks from the Bleachers

To Professor Emerita Marianna Bettman

There must be a reason the Court took this case because otherwise I think that Mr. Patterson, the Deputy Solicitor is right, we have just been through all this with Jackson, at least on the issue of finding the social worker not to be an agent of law enforcement. The main difference there was that the defendant was an already arrested adult. And also the fact that in this case, unlike that one, the social worker did the entire investigation, for whatever that is worth.

I think M.H.’s best chance may be with his due process voluntariness argument. I see at least three votes for suppressing M.H.’s statements on that basis—the Chief, and Justices Stewart and Donnelly. Justices Fischer and French also voted to take the case, so maybe one of them will agree suppression was proper. Justice French has been receptive in the past to a compelling due process argument. But other than one question by Justice Fischer, the two were silent during the argument, as were Justice DeWine and of course, Justice Kennedy. I see Justices DeWine and Kennedy voting to uphold the appeals court. Also, the high-water mark of protection of juveniles was when now retired Justices Pfeifer, O’Neill and Lanzinger were still on the bench, joining Chief Justice O’Connor in expanding rights of juvenile offenders. Not so much, since then.

I completely agree with M.H.’s lawyer Mr. Kuzmins that you don’t need a rubber hose to have a due process violation in interrogating children, who are indeed prone to comply with authority figures. Why would a 13-year-old in this situation know he was free to go? I’m also troubled with the mother’s lack of understanding of what was really happening here. For the state, Ms. Meyers conceded that the record shows that the social worker did not tell M.H. why he was there or that he was free to leave, and that she was not aware if the mother had been told that.  All of that should matter. Judge Kathleen Ann Keough did a compelling job setting forth her concerns about this in her separate concurrence in the court of appeals decision, even though she voted to overturn the motion to suppress. Given her concerns, I’m surprised at her vote.  Judge Keogh was particularly concerned that “M.H.’s mother stated that she did not know that the meeting with the social worker was voluntary and she did not ask to be present during the interview because she thought it was not permissible,” and over the fact that “M.H.’s mother further stated that had she known about the purpose and nature of the meeting, and potential consequences, she would have had an attorney present.”

The Court could require extra weight be given to age (especially this young) in the totality of circumstances equation. Perhaps the Court could add the independent advice/interested adult factor, rejected in Watson, as an additional factor in the totality of the circumstances test.

To Student Contributor Maria Ruwe

I think that the Court will find for M.H. and suppress the statements made to the social worker. Mr. Kuzmins, arguing for M.H., emphasized the circumstances surrounding the interrogation. Especially compelling was the fact that M.H. was never informed that he may leave the interrogation at any time or could refuse to answer questions. These comments seemed to resonate with the justices.

I think the toughest part of M.H.’s case is to surmount Jackson, which held that a statute that requires a social worker to report any criminal findings to law enforcement does not transform a social worker into law enforcement. Although M.H.’s attorney went into greater detail in his brief, M.H.’s attorney distinguished Jackson in his oral argument by noting that there were two parallel investigations occurring in Jackson. But in M.H.’s case, the social worker was conducting a singular investigation into M.H., entirely by herself.

Mr. Peterson, arguing for the state, asserted that suppressing M.H.’s statements would require the court to overrule Jackson. However, Justice Donnelly seemed to disagree and suggested that the court could find for M.H. without overruling Jackson. Because the social worker did the entirety of the investigation herself, and M.H. himself was never informed that he could leave the interrogation, I think the court will find for M.H.