The Supreme Court, in J.D.B. v. North Carolina, another 5-4 ruling, held that police should “take into account” the age of a person when determining whether it’s appropriate for Miranda warnings to be given.  Lyle Denniston at  SCOTUSBlog explains.

Repeatedly citing “common sense” as its guiding light, a closely divided Supreme Court ruled Thursday that police must take into account the age of a youth they are going to question, in order to decide whether to warn the boy or girl about their constitutional rights — including the right to remain silent.   The Court majority, speaking at length about the vulnerability of children, insisted it was not abandoning the simplicity of the “Miranda warnings”  requirement.  Still, it did not answer all the questions that its ruling may raise in the minds of police officers dealing with a youthful suspect.  Answers may have to come as lower courts apply the new ruling, issued in J.D.B. v. North Carolina (09-11121).

Justice Sonia Sotomayor wrote the majority opinion and, as Denniston says, grounded this emanation of the Constitution in no less sound a foundation than “common sense.”  It’s her life as a former prosecutor in New York that gives rise to this muddle.

Basically, what the Court did was to add to the Miranda equation a requirement that, if an officer knows at the time the actual age of the youth the police are about to question, or a suspect’s young age would have been apparent at the time, the officer must take that into account in deciding for or against a rights warning.   The Court did not say at what young age warnings would have to be given, nor did it say just how the officer was to translate a conclusion about a suspect’s age into a decision to give — or not to give — warnings.

While Miranda warnings never had the effect the court assumed they would have, of sufficiently alerting suspects in custody to the really sound idea that they say nothing and ask for a lawyer, it didn’t work out that way.  Apparently, the Supremes have a peculiar understanding of human nature, where people feel confident enough to assert their rights to police, and police are sufficiently professional that they won’t hold it against them (or beat them senseless). 

But resort to “common sense” signifies the court’s recognition that children are particularly vulnerable to influence and coercion.  It also signifies that Sotomayor was incapable of coming up with any intellectually sound distinction between children, mentally challenged, delicate teacups, habitual drunkards and a host of other people who can’t seem to behave the way Miranda anticipated they would.  Actually, almost no one reacts to Miranda warnings the way the Supremes assumed they would. What a surprise.

And indeed, children are special.  Not that others aren’t special, but children are children.  If only the courts would remember this when they sentence them as if they were adults, but that’s another matter.  Children are taught to respect authority, to be cooperative with adults, that cops are their friends.  We rarely teach them proper etiquette for dealing with custodial interrogation.  Very few schools have a course in this, and few cover it in assemblies along with Mothers Against Drunk Driving.

So what’s a cop to do, now that he should take age into account?  Speak slower as he gives the Miranda warnings?  Smile more?  Use a calming voice?  He can’t change the words to less sophisticated language, as the nature of the warnings are such that courts frown upon too much interpretation.  Better to read it off the card. Always.

Just use common sense, Justice Sotomayor implores.  Without citation.

Common sense  is not my favorite phrase.  It’s not that I have anything against it, as much as it doesn’t exist.  It’s the way people explain things for which they can’t find logical words.  It’s some vague notion that we all carry around within ourselves under the misguided assumption that my common sense and yours bear something in common.  And maybe they do, and maybe they don’t, but we’ll never know.  We just chalk up our belief that our way is the right way to common sense, and know that we’re right and everyone who disagrees is wrong.  It’s just common sense.

What it is not, unfortunately, is guidance.  When the Supreme Court decides to throw a monkey wrench, even if it’s a needed monkey wrench, into the works of something that’s had a pretty stable history, it needs to do more than chalk it up to common sense.  It needs to provide guidance about what it is telling police to do, and the rest of us to do in return.  If the police give the Miranda warnings to children and obtain a confession, have they complied with this decision?  What if they didn’t and obtained a confession, but acted in recognition of tender years.  Then did they comply?  And how do we contend they wrongfully extracted a confession if we don’t know the right way to do so?

Sure, we can argue that it’s just common sense.  So will the prosecutor, since she’s entitled to enjoy the benefits of common sense like anyone else.  In fact, given that the prosecution has taken ownership of common sense years ago, arguing it on a motion to suppress seems so natural.  But what’s the judge to do, with everyone in the room arguing common sense.  No matter what ruling she issues, she’ll claim it too is common sense.

The Sotomayor opinion sought to counter the foreboding of the Alito dissent, insisting that the Court was not inviting police to look at any personal characteristic of “meekness” or insecurity other than young age, that it was not saying that a child’s age would be the decisive factor in every case where giving or not giving warnings was at issue, that it would not be a difficult thing for police to figure out that the suspect they are about to question is a child, and that the bottom line of the ruling was simply that young age could not be totally left out of the custody calculus.

“Common sense” and “community experience,” Sotomayor wrote, make it possible for adults to understand objectively what is to be expected of children in a variety of different situations, and so it is also possible to do so with “children subjected to police questioning.”

Really?  It seems we all know the answer.  It’s just common sense.

This neither an endorsement of Miranda in practice or an anti-child perspective.  Quite the contrary.  We could resolve the custody perception issue (another ridiculous bit of Supreme Court Justices’ assumption of how real people behave) by not allowing police to question a child without a parent or guardian present, and not allowing a statement by a child under 16 to a police officer under custodial interrogation to be admitted in court.

This is an endorsement of the Supreme Court crafting some procedures to go along with their common sense.  You know, just in case common sense isn’t quite as common as Sotomayor says.