7.7Statements Made by Juveniles¹

A.Major Felony Recordings

“A law enforcement official^[2] interrogating an individual in custodial detention^[3] regarding the individual’s involvement in the commission of a major felony^[4] shall make a time-stamped, audiovisual recording of the entire interrogation.^[5] A major felony recording shall include the law enforcement official’s notification to the individual of the individual’s Miranda^[6] rights.” MCL 763.8(2).⁷ 

“The requirement in [MCL 763.8] to produce a major felony recording is a directive to departments and law enforcement officials and not a right conferred on an individual who is interrogated.” MCL 763.10. In addition, “[a]ny failure to record a statement as required under [MCL 763.8] or to preserve a recorded statement does not prevent any law enforcement official present during the taking of the statement from testifying in court as to the circumstances and content of the individual’s statement if the court determines that the statement is otherwise admissible. However, unless the individual objected to having the interrogation recorded and that objection was properly documented under [MCL 763.8(3)], the jury shall be instructed that it is the law of this state to record statements of an individual in custodial detention who is under interrogation for a major felony and that the jury may consider the absence of a recording in evaluating the evidence relating to the individual’s statement.” MCL 763.9.

“With MCL 763.8, the Legislature codified its preference for recorded statements. With MCL 763.9, the Legislature set forth the remedy for violating the prior section–a jury instruction. The Legislature did not codify an exclusionary rule for the part of the interrogation that was recorded,” and the Court of Appeals refused to create one. People v Clark, 330 Mich App 392, 424 (2019) (the trial court did not err “by not instructing sua sponte the jury in accordance with MCL 763.9,” where it was assumed that a missing minute or so of the defendant’s interrogation fell within MCL 763.8, because “the absent instruction did not affect defendant’s substantial rights”).

“[F]ailure to comply with [MCL 763.8 and MCL 763.9] does not create a civil cause of action against a department or individual.” MCL 763.10.

The trial court erred in its conclusion that MCL 763.7(f)—which defines place of detention for purposes of applying the requirements of MCL 763.8 and MCL 763.10—“was dispositive regarding whether or not [the] defendant was in custody” for purposes of Miranda, 384 US 436, at the time of his questioning; “[t]he fact that a police station is a ‘place of detention’ is a fact that should be considered among the totality of the circumstances, but [MCL 763.7] also makes clear that a person can be in a police station without necessarily being in custody.” People v Barritt (Barritt I), 318 Mich App 662, 672, 673 (2017), vacated in part on other grounds by People v Barritt (Barritt II), 501 Mich 872 (2017).⁸ See also People v Barritt (Barritt III), 325 Mich App 556, 569 n 4 (2018), which rejected the portion of the trial court’s analysis that implied “that questioning a suspect in a police station, by itself, can provide a legal basis for a finding that a person is ‘in custody,’” because it “runs afoul of [Oregon v Mathiason, 429 US 492 (1977).]”⁹ 

B.Use of Improper Confession

An involuntary statement may not be used for any purpose. People v Tyson, 423 Mich 357, 377 (1985). “A confession . . . must be made without intimidation, coercion, or deception, and must be the product of an essentially free and unconstrained choice by its maker.” People v Akins, 259 Mich App 545, 564 (2003) (internal citation omitted). “The burden is on the prosecution to prove voluntariness by a preponderance of the evidence.” Id. at 564.

C.Determining Admissibility Under Miranda¹⁰

The Miranda rules apply to juveniles.¹¹ See JDB v North Carolina, 564 US 261, 264 (2011) (the age of a child subjected to police questioning is relevant to the Miranda custody analysis); Fare v Michael C, 442 US 707, 717 n 4, 725 (1979) (a juvenile’s request to speak with his probation officer did not constitute an invocation of the juvenile’s rights to counsel and to remain silent); People v Anderson, 209 Mich App 527, 530–35 (1995).

The age of a child subjected to police questioning “properly informs the Miranda custody analysis.” JDB v North Carolina, 564 US 261, 264 (2011). In JDB, 564 US at 264-267, a uniformed police officer removed a 13-year-old student (“JDB”) from his seventh-grade classroom and escorted him to a conference room, where, upon interrogation by police, he confessed his involvement in two home break-ins. In the ensuing juvenile proceedings, JDB sought suppression of his statements, asserting that he had been subjected to a custodial interrogation without being afforded Miranda warnings. Id. at 267-268. The United States Supreme Court, addressing the state supreme court’s refusal to “‘extend the test for custody to include consideration of [a suspect’s] age[,]’” held that JDB’s age at the time of the interrogation was relevant to the custody analysis. Id. at 268, 277, 281 (internal citation omitted). “[A] reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. . . . [C]ourts can account for that reality without doing any damage to the objective nature of the custody analysis.” Id. at 272. Although officers are not required to consider a suspect’s subjective state of mind or other unknowable circumstances, a child’s age is a fact that “yields objective conclusions” that “are self-evident to anyone who was a child once . . . , including any police officer or judge[;]” thus, “a child’s age differs from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person’s understanding of his [or her] freedom of action.” Id. at 271-272, 275. Cautioning that “a child’s age will [not] be a determinative, or even a significant, factor in every case[,]” the Court concluded that “so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test.” Id. at 277.

See also People v White, 493 Mich 187, 203 (2013) (holding that “the mere fact that [the] defendant was 17 years old and inexperienced in the criminal justice system [did] not mean that he was ‘peculiarly susceptible to an appeal to his conscience’ or ‘unusual[ly] susceptib[le] . . . to a particular form of persuasion[]’ [within the meaning of Rhode Island v Innis, 446 US 291, 302 (1980)][]”).

“[W]hile the fact that police questioning occurred at school or in a principal’s office alone is not dispositive of custody, it is still a highly relevant factor to consider in a Miranda custody analysis involving juveniles at school.” In re NC, ___ Mich App ___, ___ (2023). “[T]hat a juvenile was interviewed by law enforcement at school or in a principal’s office, along with the circumstances surrounding the questioning, are relevant considerations in a custody analysis.“ Id. at ___ (noting “questioning a juvenile in a school or a principal’s office” was an issue of first impression in Michigan). In In re NC, a 13-year-old boy was removed from his class by the principal, who was accompanied by an armed police officer in full uniform, and escorted “to the main office without explanation, where he was required to wait with an officer nearby.” Id. at ___ (noting “[t]he backdrop was a school in lockdown; students were not free to leave or move about the school”). The principal’s “office doors were closed throughout the questioning” and NC’s father “believed that he was not free to withdraw NC from the interview and leave, and that he was permitted at the interview only as a silent observer.” Id. at ___. The Court of Appeals held that “the location of the interview, NC’s young age, the manner in which the interview was initiated and conducted, the school’s lockdown, and the failure to inform NC that he was free to leave or free to refuse to answer [the police officer’s] questions support that NC was in police custody.” Id. at ___. Because “[t]hese facts sufficiently support that [the police officer] subjected NC to a custodial interrogation,” “the trial court properly suppressed NC’s statements” because “he was not given Miranda warnings.” Id. at ___. The Court of Appeals held that the trial court “did not ignore the totality of the circumstances and unduly rely only on that fact that NC was never advised that he was free to leave.” Id. at ___ (observing that the trial court “explicitly mentioned various facts weighing against NC being in custody”).

D.Determining the Voluntariness of a Juvenile’s Confession¹²

1.Factors

“The voluntariness of a Miranda waiver is evaluated under a totality of the circumstances test, but also includes additional safeguards for juveniles.” People v Eliason, 300 Mich App 293, 305 (2013). “The admissibility of a juvenile’s confession depends upon whether, under the totality of the circumstances, the statement was voluntarily made.” People v Givans, 227 Mich App 113, 120 (1997). “The test of voluntariness is whether, considering the totality of all the surrounding circumstances, the confession is the product of an essentially free and unconstrained choice by its maker, or whether the accused’s will has been overborne and his [or her] capacity for self-determination critically impaired.” Id. at 121. In Givans, 227 Mich App at 121, the Court of Appeals set out a nonexhaustive list of additional factors to be used to determine whether a juvenile’s statement was voluntarily made:

•whether Miranda¹³ requirements were met,¹⁴ and whether the juvenile clearly understood and waived those rights;¹⁵

•the degree of police compliance with MCL 764.27 and the “juvenile court rules”;¹⁶

•the presence of an adult parent, custodian, or guardian;

•the juvenile defendant’s personal background;

•the juvenile’s age, education, and intelligence level;

•the extent of the juvenile’s prior experience with the police;

•the length of detention before the statement was made;

•the repeated and prolonged nature of the questioning; and

•whether the juvenile was injured, intoxicated, in ill health, physically abused or threatened with abuse, or deprived of food, sleep, or medical attention.

See also Eliason, 300 Mich App at 305-306.

Other factors that may be considered include a promise of leniency, People v Conte, 421 Mich 704, 711-712, 751, 761-762 (1984), and police misrepresentation, People v Hicks, 185 Mich App 107, 113 (1990).

2.Presence of Adult Parent, Guardian, or Custodian

The Court of Appeals has suggested that a juvenile must request the presence of a parent or other adult before the absence of such a person should be considered as having a negative impact on the voluntariness of a juvenile’s confession. See Givans, 227 Mich App at 121-122 (the juvenile’s failure to ask for the presence of his mother during interrogation was one factor supporting the trial court’s finding that his statements were voluntary).

3.Evidentiary (“Walker”) Hearing

A defendant may move to suppress his or her statement, either because it was involuntary or because it was otherwise obtained in violation of his or her constitutional rights. The prosecution bears the burden of showing the admissibility of a confession. Brown v Illinois, 422 US 590, 604 (1975).

A hearing on the admissibility of a confession, typically called a Walker hearing,¹⁷ must be conducted outside the presence of the jury. MRE 104(c). With the exception of the rules of evidence regarding privilege, the rules of evidence do not apply to Walker hearings. MRE 104(a); People v Richardson, 204 Mich App 71, 80 (1994). By testifying at a Walker hearing a defendant “does not become subject to cross-examination on other issues in the case.” MRE 104(d).

4.Standard of Review

“A trial court’s findings of fact following a suppression hearing will not be disturbed by an appellate court unless the findings are clearly erroneous. The trial court’s factual findings are clearly erroneous if, after review of the record, th[e reviewing c]ourt is left with a definite and firm conviction that a mistake has been made.” Givans, 227 Mich App at 119 (internal citations omitted).

E.Limitations on Use of Statements Made by Juveniles During Informal Proceedings

1.Diversion¹⁸

A diversion conference may not be held until after any questioning of the minor has been completed or after an investigation has been made concerning the alleged offense. MCL 722.825(2). “Mention of, or promises concerning, diversion must not be made by a law enforcement official or court intake worker in the presence of the minor or the minor’s parent, guardian, or custodian during any questioning of the minor.” Id. Information given by the minor during the conference or after the diversion is agreed to, but before a petition is filed with or authorized by the court, must not be used against the minor. Id.

2.Consent Calendar¹⁹

MCL 712A.2f(12) permits the court, “[i]f it appears to the court at any time that proceeding on the consent calendar is not in the best interest of either the juvenile or the public[,]” to transfer the case to the formal calendar. See also MCR 3.932(C)(9). Once the case is transferred to the formal calendar, the juvenile is entitled to the full panoply of rights under the court rules, In re Chapel, 134 Mich App 308, 312 (1984), and the court must “proceed with the case where court proceedings left off before the case was placed on the consent calendar[,]” MCR 3.932(C)(9). Statements made by the juvenile during consent calendar proceedings must not be used at a trial on the formal calendar that is based on the same charge. MCL 712A.2f(13); see also MCR 3.932(C)(9)(b)(i).