A couple weeks back I was bemoaning the fact that the Federal Supreme Court has left us without a standard for objectively determining whether a minor is in custody for Miranda purposes. While I was offering possible answers, Scott over at Simple Justice put his finger on the problem: it's based on "common sense." There's not a much more mushy standard than that. Personally, I got a few comments and emails which boiled down to "What's the big deal?" So I thought I'd spend some time spinning out the possibilities which now exist because of JDB.
It seems to me that we start with the standard reasonable person class; to begin with every person is assumed to be in this class. This is what we have from Whren and its progeny. Prior to JDB this class included all individuals. What the court has done in JDB is created at least one exception by class: minors. We perceive that minors have a different mindset than their elders and therefore, we are going to set a different standard for them. What standard will probably be played out over the next several years since the Court punted on that, but we know there is a lower standard of accountabilty.
The interesting part of this is how it effects the Whren standard. It could mean that Whren no longer applies to minors as a class and that the subjective state of mind of a minor is to be taken into account in every single case. That is the nightmare scenario which leads to arguments in every case in which the defense attorney tries to convince the trial court that his 17 year old client is as immature as a 4 year old while the prosecution tries to show that the kid is as more mature than the judge. Meanwhile, Judge Smith will find that everyone old enough to walk is mature enough to understand her right to walk away from questioning while Judge Jones will find everyone 1 tick of the clock short of 18 years of age is so immature that parents must always be present during questioning and Miranda must always be read. This, of course, would be a huge departure from the Whren and I suspect what will eventually wind up with is at least two classes of minors in which those under a certain age (say 16) which are suspected of a crime cannot be questioned without parents present and those 16 or 17 are treated as adults.
As some commenters on the last JDB post realize, another reason I find JDB interesting is that the logic behind it doesn't hold only for minors. Logically, if one class can be excepted from the reasonable person standard others can as well. All it takes to carve another exception from the Whren class is that society perceive that a class of individuals has a different mindset than the rest of humanity. That's not a high hurdle. An obvious class would be individuals with mental deficits. Another which might be carved out are women suffering from battered woman syndrome who are questioned by male officers. Then we can get to ethnic, racial, and religious perceptions. We could also overturn some longstanding law. Those in the class of intoxicated individuals have long been held to account based upon statements they made to officers while they were intoxicated. Now we have an obvious class of individuals who would have a difficult time being cognizant of their ability to walkaway from questioning. Of course, each of these potential classes carries its own constellation of issues in determining "objectively" that a person belongs to a particular class and whether "common sense" perceptions are realities or merely prejudicial perceptions imposed upon the class. In any event, logic dictates that the existence of one class exception means that others also exist and the reality is that we all belong to some class so this newly recognized set of "exceptions" could easily swallow the whole.
However, I have great confidence in the ability of courts to not follow logical reasoning. Trial courts will almost undoubtedly limit the interpretation of JDB to minors exclusively. Appellate courts will follow suit. That doesn't mean that sharp defense attorneys who are pushing the boundaries aren't going to use this opinion as the basis for all sorts of creative arguments.