With all due respect to Judge Reinhardt and the rest of the panel, when I read this opinion, my reaction was: "Miranda, Schmiranda."
Which is just a (totally un-)fancy way of saying that I care very little about whether the child here was given his Miranda rights, because in my mind, his "confession" was completely involuntary anyway.
You've got to read the opinion to believe it. To set the scene: there's a five-year old girl and her four-year old brother and a twelve-year old male cousin outside, with a grandmother and grandfather inside a trailer on a reservation in Arizona. The grandmother and grandfather radically disagree on what the other did and said -- a dispute that creates yet more controversy in this case -- but the underlying issue is simply whether the twelve-year old (who's on trial) touched the five-year old. There's no evidence at all with respect to this issue other than the testimony of the children: no physical evidence, nothing.
I'll not go into what the various children say at trial, though lots of this is in Judge Reinhardt's opinion, and it's fascinating stuff. Particularly look at the problems with the four-year old's testimony. Which is about as helpful as testimony from . . . a four-year old.
Clearly, the most damning evidence against the defendant is his confession. That's why there's this whole fight about whether this twelve-year old kid was in "custody" and was given his Miranda rights etc. Because absent that confession, it's unambiguously a whole different ballgame.
I'm not saying that there's anything at all in Judge Reinhardt's opinion with which I disagree. Because there's lots of good stuff in there.
I just take a slightly different approach.
Put me -- an untrained civilian -- alone with a twelve-year old boy in a small, six-by-six foot room in a police station, and let me see if I can get a "confession" out of him. Let's have the kid -- as here -- be a twelve-year old who's in special education classes and who reads at a second grad level. Let me kick the mother out of the room, shut the door, and "talk" to the kid, especially after he denies that he did anything wrong. Let me tell him that what he's done "isn't really a big thing" but will become a "big thing if you're not going to be honest." Let me tell the kid -- a kid who doesn't even know his own address -- everything he needs to say to get out of here if he'll just confess. Let me especially work this kid if he's incredibly troubled and emotionally vulnerable; for example, if he's been abused himself and, especially, if he's witnessed his father try to kill his mother. All of which are true here.
Oh, one other thing will help too. Let me lie. Let me tell the kid that his grandfather -- the only stable role model in his life, the person who he calls "Dad" -- has sworn that he saw the kid molest his cousin. Let me repeatedly hammer this home to the kid: Let me repeatedly tell him that by denying the offense he's calling his grandfather a liar, remind him that he's admitted that his grandfather doesn't lie, and use every conceivable machination to point out to the kid that the only way he can tell a story that doesn't make his grandfather into a liar is to say he touched his cousin. Never mind that none of this is true: that the grandfather never said anything at all even approaching what I'm telling the kid. It's the only way out of the tiny room. Especially since the kid's already admitted that anything the grandfather says is the truth.
I'll get that twelve-year old to confess. Truly I will. Even if, unlike the officer here, I don't have a gun at my side. Because I can play on the mind of a child -- especially a child like this -- even a fraction as well as the officer here did, and I can get a confession. Even more so if, like the officer here, this isn't my first interrogation rodeo. And I can maybe even do it with a clean conscience if I testify -- as the officer does here -- that he's never even heard of a false confession.
Here's an empirical test for you. You take 10 adults and beat them with a hose. I'll take 10 children and interrogate 'em like the officer did here. We'll both try to get 'em to confess to a crime we know they didn't commit.
I bet I win that competition every single time.
Confessions are -- and should be -- excluded when they're involuntary. That's Due Process. Sure, we've got the "prophylactic" Miranda rule, and maybe that was violated here. But there a core Due Process problem as well. And when you've got a "confession" obtained in circumstances like this one, I'm not sure if it's not better to go right to it. Because if there's ever a case in which I really, really do not like the tactics that the officer elected to employ -- because they may well result in convicting an innocent child -- this one's a perfect example.
And that has very little to do with whether I read the kid what's on a tiny index card; rather, it has to do with psychologically manipulating the child into saying whatever I want him to say.
That's my slightly different perspective on the case.
