In J.D.B. v. North Carolina, 564 U.S. 261 (2011), the Supreme Court ruled that when the police interrogate a child, the child’s age must be considered in determining whether the child was in custody during the interrogation. This determination can have massive repercussions, because when the police question someone without placing that person in custody, they need not warn the person of his or her rights, and prosecutors can use anything the person said to police against him or her in court. Young people are especially vulnerable to the pressures of a police interrogation, in particular to false confessions. In 2013, the National Registry of Exonerations reported that in the past 25 years, 38 percent of the exonerations of crimes allegedly committed by youth involved false confessions. But the question of whether a young person’s confession can be used against the young person in court depends entirely on the circumstances surrounding police questioning, beginning with whether the young person was in official police custody.
Before J.D.B., the standard to determine whether any person—including a child—was in custody was a “totality of the circumstances” test. In this test, courts would look to whether a reasonable person in the suspect’s shoes would have felt free to terminate the encounter with the officers. If so, then the person was not in custody and therefore did not need to be informed of his or her Miranda rights. In this “totality” analysis, courts often considered a broad set of factors—the setting of the questioning, whether officers used force against the person, the length of the questioning, and whether the person was arrested, among other considerations.
In J.D.B., the Court concluded that because a young person’s age gravely affects how the young person perceives interactions with law enforcement and others with a severe power imbalance, the totality test should take age into account. Relying on both adolescent brain science and “commonsense conclusions,” Justice Sotomayor, writing for the majority, observed that children are generally less mature than adults, are more vulnerable than adults to outside pressures, and may make decisions without fully thinking through their consequences. The Court demanded that the law reflect what is universally known to be true: Young people are not simply miniature adults.
J.D.B. asked courts to include a young person’s age as a consideration when asking whether a reasonable person in the suspect’s shoes would have felt free to terminate the encounter with law enforcement. Rather than a general reasonable person test, J.D.B. demanded a reasonable child standard. This conclusion was a crucial paradigm shift.
Yet, though J.D.B. appeared as a landmark case on the rights of children, case law applying J.D.B. in the custody context is scant, and its overall impact seems minimal. In the 13 years since the Supreme Court seemingly strengthened legal protections for children in the criminal context, only 15 state supreme courts have cited J.D.B. in youth custody determinations. This result is surprising because, intuitively, a significant change in the law should have far-reaching impacts on lower courts, developing a deeper body of case law to explore the contours of the legal development. The limited case law citing J.D.B. and the fact that that the majority of those cases don’t engage with the requirements of J.D.B. beyond a mere surface-level approach suggest a surprising and disappointing question for children’s rights advocates: Was J.D.B. not a significant change in the law after all?
A review of cases across the 50 states shows that, despite the directive from the Supreme Court to weigh age as part of the custody test, particularly in the form of a “reasonable child” standard, state courts cite J.D.B. largely without analyzing the impact of adolescent brain development—youth’s susceptibility to adult pressure, the expectation that they follow adult instructions, and their difficulty weighing the risks of speaking with police, among other vulnerabilities. Most courts recite the principle from J.D.B. that age should be a factor and then dismiss it because J.D.B. concluded that age, while important, is not a dispositive factor. See J.D.B., 564 U.S. at 277.
For example, the Colorado Supreme Court in People v. N.A.S., 2014 CO 65, 329 P.3d 285 (2014), found that, despite school administrators removing a student from class and taking the student to the principal’s office for questioning by a school resource officer, the student was not in custody. The court reached this conclusion by considering that a principal and not a police officer removed the student from class and the fact that an adult relative was present in the office. The court also factored in the officer’s tone and lack of force, and the length of the interview. In considering age, the court recognized only “that N.A.S. felt intimidated and scared and that such emotions are perhaps typical of a 13-year-old.” Yet, it found that “mere fear does not place a juvenile in custody.” Thus, even though fear would likely prevent a young person from feeling free to leave, and even though the dispositive question is whether a reasonable 13-year-old would feel free to leave, the court found that fear typical of young people did not affect its decision.
Similarly, in Connecticut, in State v. Castillo, 329 Conn. 311, 186 A.3d 672 (2018), the state supreme court found that a young person was not in custody; the court listed 10 factors (including the setting, the length of the interview, the presence of armed officers, the nature of the questions, and whether the officers restrained the person) and then briefly mentioned age. In determining whether the appellate court had properly applied J.D.B., the court noted that “‘[t]he defendant was nearly seventeen years old at the time he was questioned, and there was no indication that he was poorly educated or developmentally challenged.’” Id. Thus, the court concluded that simply noting the young person’s age fulfilled J.D.B.’s requirement to consider a defendant’s age in the custody analysis. Other states—Illinois, Maine, New Hampshire, Rhode Island, and Virginia—and the District of Columbia have also made only cursory mentions of age in their youth custody cases. See In re D.L.H., 2015 IL 117341, 392 Ill. Dec. 499, 32 N.E.3d 1075 (Ill. 2015); In re A.J., 63 A.3d 562 (D.C. 2013); State v. Jones, 2012 ME 126, 55 A.3d 432 (Me. 2012); In re E.G., 171 N.H. 223, 194 A.3d 57 (N.H. 2018); In re Frances G., 30 A.3d 630 (R.I. 2011); Argueta-Diaz v. Commonwealth, No. 1141-18-2, 2019 Va. App. LEXIS 248 (Va. Ct. App. Nov. 5, 2019).
To be clear, J.D.B. requires not just a consideration of age as an independent factor but a consideration of how age interacts with the other factors in the totality. Especially when it comes to setting, the Supreme Court emphasized, “the effect of the schoolhouse setting cannot be disentangled from the identity of the person questioned. . . . Without asking whether the person ‘questioned in school’ is a ‘minor,’ the coercive effect of the schoolhouse setting is unknowable.” J.D.B., 564 U.S. at 276 (internal citations omitted).
Neither Castillo, nor the Illinois, New Hampshire, or Virginia cases analyze how the age of the young person alters the effects of the other factors. Courts that have considered age with the depth J.D.B. requires, especially in the way youth interact with a setting, have tended to find that the young person was in custody. These courts spend significantly more time on age, diving deeper into how a youth in the child’s position would feel and what knowledge the child had about the questioning, but few cases actually reach this level of protection.
In Kalmakoff v. State, 257 P.3d 108 (Alaska 2011), the Alaska Supreme Court found that police officers placed a 15-year-old in custody by removing him from school and driving him in their truck to an interrogation room. The court considered the student’s age and “sophistication,” as well as “an adolescent’s status as a secondary school student.” In B.A. v. State, 100 N.E.3d 225 (Ind. 2018), the Indiana Supreme Court similarly considered a 13-year-old’s status as a student in its custody determination. The court noted, in addressing whether a reasonable child in the student’s position would have felt free to leave, “Of course, no student feels free to just walk out of the principal’s office.”
It is clear that the setting where a child is questioned is paramount in the determination of whether the child feels free to leave, as young people’s freedom of movement is more restricted than adults’, from parental rules to school rules resulting in discipline for students who leave class or campus, to the simple commonsense knowledge that young people have less experience going places independently. In In re Joseph H., 237 Cal. App. 4th 517, 188 Cal. Rptr. 3d 171 (2015), for example, a California appellate court found that a child under 14 was in custody when police questioned the child alone in a police car. The court reasoned that a “significant factor” pointing to custody was the detective’s knowledge of the young person’s age.
Two state appellate cases provide additional insight, particularly into the status of young people as students. In In re J.J., 651 S.W.3d 385 (Tex. App. 2022), the Texas court remarked, “[J]uveniles, unlike adults, are always in some form of custody.” And in In re D.A.H., 277 N.C. App. 16 (2021), the North Carolina appeals court found that the presence of a school resource officer in an interrogation, even though a school administrator questioned the student, was an important factor. The court found that there was “no doubt that educators and law enforcement are increasing their collaboration in the school setting and that school officials are increasingly becoming active participants in the criminal justice system.” Where young people inherently have less freedom than adults, of course young people would feel very differently about whether they are free to leave a school, a police car, or any interaction with an officer present. These cases are much more faithful to the opinion in J.D.B. and should be the standard for child custody determinations across jurisdictions.
But most courts seem not to consider the profound effect that a young person’s age and status as a youth in society may have on the young person’s ability to understand his or her experiences and make decisions based on them. In Michigan, a state appeals court considered whether a 16-year-old was in custody when questioned at home. See People v. Altantawi, No. 346775, 2019 Mich. App. LEXIS 5230 (Ct. App. Sept. 5, 2019). Peculiarly, this court did not consider the juvenile’s age in the analysis at all. The dissent relies heavily on J.D.B., but the majority refers to it only in a footnote acknowledging the case exists. The opinion does not ever consider a crucial question: If a child is at home, where would the child feel free to leave to? And so often, when a child’s home is not a domain the child controls, and is instead the child’s parents’ or guardian’s (haven’t we all heard the saying My house, my rules?), would a child ever feel the authority to demand that a police officer leave? There already exists a power imbalance between an officer and an adult civilian. A young person’s age only exacerbates that dynamic.
Many states do not cite J.D.B. at all. Some of those states seem not to have any court opinions determining whether a young person was in custody for Miranda purposes since 2011. The others determine whether police officers were required to give Miranda or Miranda-like warnings while questioning youth without citing J.D.B. and sometimes without considering age at all. For example, no New Mexico court has cited J.D.B. in order to make a custody determination of a young person. Yet, the absence of this case law does not mean that children are being questioned without protections. In fact, New Mexico has greater statutory protections for youth who are being questioned, even if they are not in custody for Miranda purposes. State v. Filemon V., 2018-NMSC-011, 412 P.3d 1089, found that New Mexico law “does not require that a child be subject to custodial interrogation in order for the protections of the statute to come into force” and that youth must be “warned of the statutory right against self incrimination when subject to a limited scope encounter known as an ‘investigatory detention.’” Separately, in 1987, a New York case reached the same conclusion as J.D.B., carving out a “reasonable 10-year-old” subset for custody analysis. See In Matter of Chad L., 131 AD.2d 760, 761, 517 N.Y.S.2d 58 (N.Y. App. Div. 2d Dep’t 1987). In contrast to states that apply J.D.B. in only a cursory manner and therefore have hardly changed their overarching custody analysis, these states are examples of jurisdictions unchanged by J.D.B. because the state law was already protective.
Because there are few cases, no obvious pattern arises, except the disappointing conclusion that a requirement to consider the age of the child being questioned has not dramatically altered the custody analysis. However, states that found in favor of custody for a youth interrogation tended to dig deeper into the salient question of whether a reasonable young person in the defendant’s shoes would have felt free to leave. In the face of unfriendly courts, defense attorneys must emphasize arguments based on adolescent brain science so that judges are forced to reckon with youth development in depth. Defense attorneys should also remind courts that they must consider how young people’s lack of maturity interacts with every other facet of the totality test. The analysis of each circumstance, from setting to length of questioning, to officer tone and the presence of weapons, must be considered in light of age. That is what J.D.B. demands, and courts must be held to its high and protective standard.
