“Because the child-abuse investigator in this case was neither a law- enforcement officer nor acting under the direction or control of the police, she was not required to provide M.H. with the Miranda warnings and his confession was not obtained in violation of his due-process rights.”
Justice Kennedy, lead opinion
“In light of the totality of the circumstances surrounding Bradley’s interrogation of M.H., it strains credulity to say that M.H.’s statements to her were voluntary…In fact, at no point during the questioning did Bradley even explain to M.H. why he was in the interrogation room with her.”
Justice Stewart, dissenting opinion
On December 3, 2020, the Supreme Court of Ohio handed down a merit decision in In re M.H., 2020-Ohio-5485. In an opinion written by Justice Kennedy, joined by Justices DeWine and Fischer, in which Justice French concurred in judgment only, the Court held that a child-abuse investigator who works for a county children-services agency does not need to give Miranda warnings before questioning a 13-year-old child suspected of committing child abuse, and that the admission of statements made by the child during this questioning does not violate due process. Justice Stewart dissented on the due process part of the opinion, joined by Chief Justice O’Connor and Justice Donnelly. The case was argued April 29, 2020.
Case Background
A referral was received by the Cuyahoga County Department of Children and Family Services (“CCDCFS”) reporting that 13-year-old M.H. had engaged in sexual activity with 12-year-old J.M., the daughter of M.H.’s mother’s boyfriend. Esther Bradley, a child-protection specialist with CCDCFS (and who had once been employed as a police detective) interviewed J.M. and advised J.M.’s mother to submit a police report.
Bradley opened an investigation into this incident and left a letter at M.H.’s mother’s (“Mother”) residence setting a time and place for Bradley to interview M.H. Although Mother was aware of the allegations against her son, Mother claimed that neither the letter nor Bradley in a later telephone call informed her that M.H. was a suspect in this investigation, nor did Mother know she could decline the interview with her son and Bradley.
Mother brought M.H. to CCDCFS to be questioned. Mother had been told by Bradley that this would be a private interview and that she would not be allowed to be present. M.H. was taken to a closed-door room by Bradley. Mother was left in a waiting room. Bradley did not advise M.H. of his Miranda rights before the interview. During the interview, M.H. admitted that he had engaged in sexual activity with J.M. Bradley prepared a report for the police.
Cleveland police Detective Christina Cottom was assigned to the case. Cottom filed a juvenile delinquency complaint alleging that M.H. had committed two counts of rape and two counts of gross sexual imposition. The state filed a motion in limine to admit M.H.’s incriminating statement. M.H. moved to suppress the statement on the grounds that it was involuntary and he had not been advised of or waived his Miranda rights, and that the probative value of the statement was outweighed by its prejudicial effect.
At the suppression hearing, Bradley testified that she had a dual purpose in interviewing M.H.—to determine if any inappropriate sexual activity had occurred, and if it did, to report this to law enforcement, and also to ensure J.M.’s safety. Bradley acknowledged the relationship between CCDFCS and law enforcement. She admitted that when she questioned M.H. a police report had been filed, that a detective had been assigned to the case and that criminal charges were a “strong possibility.” But Bradley testified that in her work for CCDFCS she was not law enforcement, did not have powers of arrest, and that her only role was to make sure families and children received the services they needed.
Detective Cottom testified that she normally coordinates with CCDFCS to interview the alleged victim jointly, but that Bradley had interviewed both before Cottom was able to contact her. Cottom never interviewed M.H. nor did she direct Bradley to do so or tell Bradley what to ask. Cottom was unaware the interview had occurred until after she received Bradley’s report a couple months later.
The trial court denied the state’s motion in limine, and granted M.H.’s motion to suppress, finding that M.H.’s statement had been obtained in violation of his due-process rights. The court also found the statement inadmissible under Evid.R. 403.
The Eighth District reversed in a split decision. While acknowledging that a social worker may have a duty to give a suspect Miranda warnings when acting under the direction or control of law enforcement, the lead opinion nonetheless concluded that there was no evidence Bradley was doing so when she interviewed M.H., nor was M.H. in custody when interviewed. The lead opinion further found that M.H. was not under arrest when his mother brought him to the interview, the door to the interview room was not locked, and M.H. was free to leave the building when the interview was over. The appeals court also found there was no evidence of coercion by Bradley. The lead opinion concluded Bradley had not compelled M.H. to incriminate himself in violation of his due-process rights. The appeals court also found that the statement was not inadmissible under Evid.R. 403.
Read the oral argument preview of the case here and the analysis here.
Key Precedent
U.S. Constitution, Amendment V (“No person . . . shall be compelled in any criminal case to be a witness against himself . . .”)
U.S. Constitution, Amendment XIV, Section I (“No state shall make or enforce any law which . . . shall deprive any person of life, liberty, or property, without due process of law . . .”)
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.”)
Michigan v. Tucker, 417 U.S. 433 (1974) (Courts should examine “the circumstances of interrogations to determine whether the processes were so unfair or unreasonable as to render a subsequent confession involuntary.”)
Colorado v. Connelly, 479 U.S. 157 (1986) (“Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” Also, coercive police activity is a prerequisite to finding that a confession was involuntary.)
State v. Osie, 2014-Ohio-2966 (An interrogator’s use of “an inherently coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep)” triggers the due-process analysis of the totality of the circumstances.)
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. A social worker employed by a children-services agency is neither a law enforcement officer nor an agent of law enforcement when cooperating with law enforcement regarding child-abuse investigations.)
State v. Myers, 2018-Ohio-1903 (The due-process analysis of the totality of the circumstances 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.”)
M.H.’s Propositions of Law Accepted for Review
(1) The statement of a child to a government social worker may be involuntary and violate due process even when the government social worker was not required to give Miranda warnings.
(2) A child does not feel free to leave when he is driven to a government agency for questioning by a parent and separated from that parent and interrogated in a private interrogation room without being told he is free to leave and free to not cooperate.
(3) A child-suspect must be provided Miranda warnings when that child is interrogated by a social worker who is exercising her statutory duty to investigate child abuse allegations and does so cooperatively with the police on a regular and institutional basis.
Does the Court adopt M.H.’s proposed propositions of law?
- There could be occasions when this is true, but it was not true in this case.
- No
- Only if the social worker is acting at the direction and control of law enforcement, which was not the case here.
Merit Decision
Position of the Parties
M.H. argues that children his age should be presumed unable to give a voluntary statement because the brain science about adolescence suggests a developmental risk of providing involuntary or false confessions. He also argues his statement was made under highly coercive circumstances: both his mother and Bradley were authority figures, Bradley was a former homicide detective trained in coercive interrogation techniques, and that he was separated from his mother in a government building staffed by armed guards. M.H. argues a child would not feel free to walk away from an interview with a government worker, and thus he was subjected to custodial interrogation. M.H. also argues Bradley was acting as an agent of law enforcement when she questioned him. She was a state actor required by Ohio law to investigate allegations of child abuse and report the results of that investigation to law enforcement, and Bradley knew his unwarned statements would be used in the police investigation and subsequent prosecution.
The state argues there is no evidence in the record that M.H. was unaware of his rights, that Bradley coerced him into giving a statement, or that the interview was inherently coercive. The state emphasizes that M.H. wrongly conflates the fact that Bradley is a government agent as a child-protection specialist with her being an agent of law enforcement. The state relies on precedent from the Ohio high court holding that an interview is not a custodial interrogation unless done by police or at their direction or control, and there is no evidence in this case that Bradley was acting as an agent of law enforcement.
Issues in the Case
Kennedy identifies these as the two related issues in the case:
- is a child-abuse investigator employed by a county children-services agency required to provide the Miranda warnings before questioning a child suspected of committing child abuse?
- does the Due Process Clause of the Fourteenth Amendment to the United States Constitution restrict the admission at trial of an incriminating statement made by a child suspect to a county child-abuse investigator during questioning?
Kennedy writes that binding precedent answers both questions. In 2018, in State v. Jackson, the Court held that a social worker who, as in this case, was also employed by CCDFCS was neither a law-enforcement officer nor an agent of law enforcement when interviewing an alleged adult perpetrator in a child-abuse case. Because the social worker had not interviewed the suspect at the direction or control of the police, she was not required to give Miranda warnings before questioning the suspect involved. And in 1986, in Colorado v. Connelly, the U.S. Supreme Court held that “absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.”
Analysis
Protections Against Self-Incrimination
Kennedy reviews a lot of black letter law. Anyone who watches cop shows on TV knows the Miranda warnings: the right to remain silent, any statement may be used against the accused, and the right to a lawyer, retained or appointed. These warnings must be given before a custodial interrogation or the prosecutor cannot use these uncautioned statements against the accused at trial. OK, we all know all this.
Law enforcement of course includes police, but it can also include those acting at the direction and control of law enforcement. As was true with the social worker in Jackson, Bradley was neither a law-enforcement officer nor an agent of law enforcement, and therefore was not required to advise M.H. of his Miranda rights. Also, Kennedy (a former police officer herself) adds that the fact that Bradley was a former police officer is irrelevant here.
Federal Due Process Protection
Due process precludes the use of coerced confessions as fundamentally unfair. But to find a due process violation in this context, there must be a finding of coercive police activity. And here M.H.’s confession was not causally related to police conduct since Bradley was not a law-enforcement officer nor acting at their direction or control. To Kennedy, this is fatal to M.H.’s claim under Connelly. She writes that M.H. “does not point to a single case in which the United States Supreme Court held that a confession obtained by a public employee who was not a member of law enforcement must be suppressed as violative of due process.” So, the lead opinion finds that since there was no coercive police activity, the confession in this case was not involuntary.
Nor was M.H.’s Statement Coerced
Even if Bradley’s position triggered due process protections in interviewing M.H. the lead opinion finds any incriminating statements M.H. made were not involuntary in the constitutional sense. Looking at the totality of the circumstances in the case, the record shows that M.H.’s mother brought him to CCSCFS to be questioned and that Bradley took him into a room and closed the door, and separated him from his mother. Neither M.H. nor his mother objected. M.H. was not informed of his right to remain silent, or to leave the interview. M.H. answered all questions asked of him in the single 40-minute session. Cross-examination of Bradley at the suppression hearing, at which M.H. did not testify, established no improper threats, mistreatment, or the like. Ultimately, the lead opinion finds M.H. failed to show that the interview offended notions of fundamental fairness, and rejects M.H.’s per se rule that any questioning of a 13-year-old is presumptively coercive based a child’s degree of cognitive and behavioral development.
“Without any overreaching by Bradley, M.H. cannot establish that his confession was involuntary for purposes of due process,” wrote Kennedy.
Bottom Line
“Absent evidence that a child-abuse investigator employed by a county children-services agency is a law-enforcement officer or an agent of law enforcement acting under the direction or control of the police, an interrogation is not subject to the strictures of the Supreme Court’s decision in Miranda,[citation omitted] nor does federal due process restrict the admission at trial of an incriminating statement made to the investigator during that questioning,” wrote Kennedy.
Justice French concurred in judgment only without an opinion.
Justice Stewart’s Dissent
One Point of Agreement: Miranda Warnings Not Required
Stewart agrees with the majority that Bradley was not required to give the Miranda warnings to M.H. before questioning him, because the warnings are not required if the suspect is not in custody or the questioner is not an agent of law enforcement. Here, the Jackson case establishes that Bradley was not an agent of law enforcement or acting at their direction when she questioned M.H. pursuant to her statutory duty to investigate. But from there, the dissent strongly disagrees.
Due Process
“The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a defendant from coercive state action that results in an involuntary confession. It is not limited to coercive actions taken by police,” Stewart notes. She would find that because Bradley is a state actor and because the evidence shows Bradley acted coercively in getting involuntary statements from M.H. Stewart agrees with the trial court that the motion to suppress should have been granted on due process grounds.
Stewart strongly disagrees with the lead opinion that the U.S. Supreme Court holding in Colorado v. Connelly only limits Fourteenth Amendment due-process protections to involuntary statements obtained through coercive police conduct. She reads the decision more broadly, as applicable to non-police state actors where the circumstances surrounding the confessions showed they were compelled and were therefore involuntary. She also reads Connelly as being based on the absence of government coercion, and not the title of the state actor involved, who just happened to be a police officer in that case, but that was not what was outcome determinative. She agrees with, and cites, those cases that hold that “for due process protections to apply, the interrogation ‘must be at the hands of a government actor whose questioning is of a nature that reasonably contemplates criminal prosecution.’”
Zeroing in on Bradley
When Bradley questioned M.H., she was acting in her official capacity as an agent of Cuyahoga County in the Sex Abuse Intake Unit of CCDCFS. In that role, Bradley had a statutory duty to investigate reports of child abuse and to report those findings to law enforcement. At the suppression hearing, Bradley admitted that when she first met with J.M. and her mother, she advised J.M.’s mother to file a police report. At the time she questioned M.H., she knew a police report had been filed, knew a detective had been assigned to the case, and that criminal charges were, in her words, “a strong possibility.” Bradley testified that one of her main purposes in questioning M.H. was to find out if he had engaged in any criminal sexual activity with J.M., and if so to send the information to the police. Further, although Cleveland Police Detective Christina Cottom had been assigned to the case since mid-October of 2015, Cottom had not conducted any interviews in the case, but rather relied on the ones Bradley had conducted. Although Cottom neither directed nor controlled Bradley’s interviews, because of the relationship between CCDCFS and the police, Cottom knew she would be receiving Bradley’s report and that it would be used in furtherance of the criminal investigation.
“These facts demonstrate that Bradley’s questioning of M.H. was designed in large part to assist the state in its investigation and prosecution of M.H.,” wrote Stewart, in concluding that the Due Process Clause of the Fourteenth Amendment was implicated here.
Read Those Footnotes! Gloves Are Off!
In concluding that the Due Process clause is implicated here, Justice Stewart writes this in footnote two of her dissent:
“If a certain state actor is authorized to act in a way that mirrors law enforcement and that person wrings a confession out of the mouth of a suspect so that it may later be used against the suspect at trial, that action should be subject to constitutional scrutiny. The lead opinion offers no clear doctrinal explanation for rejecting that conclusion, because there is none.”
Dissent Finds M.H.’s Statements to Bradley Were Involuntary
If a defendant challenges the voluntariness of a confession, the burden is on the state to establish that the confession was voluntarily made, using a totality of the circumstances test. Factors to be considered are the “age, mentality, and prior criminal experience of the accused; the length, intensity, and frequency of [the] interrogation; the existence of physical deprivation or mistreatment; and the existence of [a] threat or inducement.” This is especially true where juveniles are concerned.
M.H. Was Never Advised of His Rights
Here, the dissent finds that based on the totality of the circumstances, M.H.’s statements to Bradley were involuntary. There is nothing in the record to show that Bradley or anyone else made sure that M.H. knew he even had rights, let alone that he understood them. In fact, Stewart observes, at no point during the questioning did Bradley ever explain to M.H. why he was there. She certainly never told him he didn’t have to speak with her. She didn’t think she had to.
The record does show that before the questioning began, Bradley informed M.H.’s mother “to some extent” that sexual-assault allegations had been filed against her son, but also that her testimony at the suppression hearing shows Bradley never candidly informed Mother of the nature of the questioning she intended to do. The letter Bradley originally left at Mother’s residence (when Mother was not home) was “cryptic and vague.” Stewart observes that it was apparent from Mother’s testimony that Mother did not see this questioning as optional, and when Mother called Bradley to discuss this further, Bradley never told Mother that she, Bradley, was obligated to report M.H.’s answers to law enforcement. While Bradley told Mother the questioning would be “private,” Mother did not understand that meant she wouldn’t be allowed in the room with M.H. during the questioning. Had she known this, Mother testified that she would not have allowed the questioning to proceed without first getting M.H. a lawyer. Mother only learned of CCDCFS’s regular practice of not allowing parents in the interrogation room when she got to the county building with her son, and then she thought it was too late to stop the questioning. To Stewart, as to the concurring judge in the appellate decision, the record shows that Mother understood the “private” nature of the questioning to mean Bradley would not be sharing the information she got from M.H. with anyone else, especially law enforcement. And if M.H.’s mother didn’t understand this, M.H. certainly would not have, either.
Stewart also criticizes the state for taking the position that nothing in the record shows that M.H. was ignorant of his rights when it is the state’s burden to show the voluntariness of an inculpatory statement it wishes to use at trial. To Stewart, the fact that M.H. was never informed of his rights and was only 13 is evidence that M.H. (not to mention his mother) did not know or understand the rights he was giving up when he answered Bradley’s questions. This weighs against voluntariness and leads the dissent to conclude M.H.’s statements to Bradley were not voluntarily made.
The Coercive Setting
The dissent also concludes that the setting of the interrogation and the events leading up to it resulted in an inherently coercive environment for a 13-year-old. There was no way M.H. would have felt free not to answer Bradley’s questions, or to get up and leave. The questioning occurred in a government building with police officers present. M.H. had never met Bradley before, and he was immediately separated from his mother when he arrived. He was taken to a secluded room to be questioned behind closed doors by a total stranger. No adult was present to look out for his interests.
Although Kennedy, in the lead opinion, found the fact that Bradley had once been police officer to be irrelevant, Stewart does not. To Stewart it was significant that Bradley had been professionally trained in law enforcement, especially with her awareness of “rapport building questions.”
“It must be noted that although Bradley’s job title at CCDCFS was child-protection specialist and she was not an employee of a law enforcement agency, both the interrogation atmosphere and Bradley’s structuring of her questions are strikingly similar to the type of police interrogation practices that the Supreme Court found inherently coercive in Miranda,” Stewart wrote. There was just no way M.H. would have thought he could leave or not answer Bradley’s questions.
Finally, Stewart takes issue with the way Bradley scheduled the interrogation, suggesting that Bradley intentionally took advantage of M.H.’s mother’s parental authority to ensure M.H.’s cooperation. Bradley let Mother make all the arrangements for her son without even telling Mother that she, Bradley, had a duty to report her findings to the police or that M.H. did not have to speak with her at all.
“Under these circumstances, I cannot agree with the state’s position that M.H. had the agency to make a free and voluntary statement to Bradley, when he never had a choice whether to attend the interrogation,” Stewart wrote.
Bottom Line, Dissent
This case implicates the Due Process Clause’s protections against coercive state action. Under the totality of the circumstances, statements made by M.H. during the interrogation were involuntary and should have been suppressed.
Case Disposition
The judgment of the Court of Appeals overturning the granting of the motion to suppress is affirmed.
Trial Court Judge (reversed)
Cuyahoga County Juvenile Court Judge Alison Floyd
Eighth District Court of Appeals Panel (Majority Affirmed)
Opinion written by Judge Tim McCormick, separate concurrence by Judge Kathleen Ann Keough
Dissent written by Judge Larry A. Jones
Concluding Observations
As I wrote after argument, the justices were surprisingly quiet, with few questions asked. That is all the more surprising in hindsight, given the extent of the opinion.
Here’s some of what I wrote after argument:
“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… Justice French has been receptive in the past to a compelling due process argument…. 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.” Well, it didn’t to Justice Kennedy, for the lead opinion. I found her opinion dense and unpersuasive. By contrast, I think this is one of Justice Stewart’s strongest opinions to date that the blog has covered. And I was particularly disappointed in Justice French, who has often championed due process, going with the lead opinion in her waning days on the Court when this case seemed like such an obvious due process violation. It will be interesting to see what happens in the area of juvenile rights when Justice French is replaced with Justice-elect Brunner in January. I suspect this case, for one, would have gone the other way.