Fare v. Michael C.

PETITIONER:Kenneth F. Fare, Acting Chief Probation Officer
RESPONDENT:Michael C.
LOCATION:Van Nuys Police Station

DOCKET NO.: 78-334
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Supreme Court of California

CITATION: 442 US 707 (1979)
ARGUED: Feb 27, 1979
DECIDED: Jun 20, 1979
GRANTED: Oct 30, 1978

ADVOCATES:
Albert J. Menaster – for respondent
Mark Alan Hart – for petitioner

Facts of the case

The defendant, in this case, was suspected of involvement in the murder committed in Los Angeles, CA. Michael was a minor, had previously been brought to criminal responsibility and at the time of detention was under the supervision of an authorized officer of juvenile affairs. During the detention, he was informed of all his rights as a detainee, including the right to counsel and the ability to remain silent. He expressed a desire to see his officer, but at that moment it was impossible. After receiving the refusal, he began to testify about the murder committed.

During the trial, he changed his point of view and began to assert that his testimony had no legal effect since he testified without the presence of a lawyer, another adult responsible for him or an authorized officer. The court of first instance dismissed these claims on the grounds that the accused refused legal assistance at the time of detention and also did not realize his right to silence. During the revision of the decision by the Supreme Court, the previous one was extended. The court ruled that the provisions of the Fifth Amendment had not really been violated. It was also noted that the officer for the affairs of minors could not act as a minor’s lawyer in this case since he has other powers.

Thus, a precedent was created according to which the testimony given by the minor accused is valid in case he was informed of his rights and opportunities, but refused to use them.

Question

Does a juvenile’s request for his probation officer trigger the Fifth Amendment privilege against self-incrimination?

Warren E. Burger:

We’ll hear arguments in Fare against Michael C., beginning at 1 O’clock.

Mr. Hart, you may proceed whenever you’re ready.

Mark Alan Hart:

Thank you, Your Honor.

Mr. Chief Justice and may it please the Court.

I am Mark Alan Hart, Deputy Attorney General of the State of California, appearing as counsel for petitioner.

Miranda versus Arizona opened a new chapter in the law of confessions, a chapter that began with precise rules to guide law enforcement in the conducting of a custodial interrogation but has over the years been read with some different and expanded interpretations.

In the case at bar, the California Supreme Court has applied the strict Miranda rules with one addition, that a juvenile who requests his probation officer per se invokes his Fifth Amendment right to be silent, no less than if he asks for an attorney, and that his statements must be suppressed without regard to whether or not they were in fact involuntary.

The operative facts are brief.

On the evening of January 19, 1976, Robert and Helen Yeager were on their way to their home in the San Fernando Valley section of Los Angeles.

Unbeknownst to them, respondent and two of his friends were following in a pickup truck being driven by respondent.

They were looking for someone to rob.

They were looking for money and they had a gun.

The Yeager’s arrived home.

Respondent and his friends approached the house, approached Mr. Yeager and during the course of an attempted robbery, one of the other minors shot Mr. Yeager and killed him.

Respondent was apprehended and brought into the police station for questioning.

He was 16 years old at the time of the offense and he had had prior experience with the juvenile court system including serving some time in a youth camp.

He was given the standard Miranda admonition.

He was told that he had a right to remain silent, was told that anything he said could and would be used against him in a court of law, that he had a right to an attorney, that if he could not afford one, one would be appointed for him at — without his expense and that he had a right to have the attorney present during all stages of interrogation.

He was asked if he understood his rights and if he wanted to talk to the officers.

He indicated that he did and that he might talk but when asked if he would give up his right to an attorney present, he responded, “Can I have my probation officer here?”

To this, the officers replied, “Well, no.

We can’t call your probation officer right now, but you have a right to an attorney.”

And, respondent’s response was, “Well, how do I know you guys won’t — pull no police officer in and then tell me he’s an attorney?”

And, to this, respondent was re-admonished as to the standard Miranda rights.

He was told, “You can have an attorney.

You don’t have to talk to us at all if you don’t want to.

If you want to talk to us without an attorney present, you can talk to us.

If you don’t want to, you don’t have to.

That’s your right.

Do you understand that right?”

Mark Alan Hart:

Respondent indicated that he did understand that right and, when asked if he would talk to him without — talk to them without an attorney present, respondent replied, “Yeah, I want to talk to you.”

Later during the interview, respondent confessed to having participated in the offense.

Juvenile court proceedings were instituted.

Respondent’s confession was admitted into evidence and several other things were established during the proceedings, including the fact that respondent had been on probation that his probation officer had counseled him as to some family problems, but that the probation officer under California law was a peace officer and that respondent was told this.

The trial court made a finding of voluntariness.

Respondent was declared a ward of the court for having committed a murder.

In reversing the judgment, the California Supreme Court has taken the Miranda exclusionary rule and applied the language dealing with request for legal counsel one step further.

They’ve applied it to probation officers, by statute peace officers, in California.

It is positioner– petitioner’s position, the instant confession was obtained after a fully informed waiver of Fifth Amendment rights, including the right to legal counsel, that the admonitions — both admonitions given to respondent in his statements, before and after each, indicate a knowing and intelligent waiver and that the statements were properly admitted.

Respondent’s request to see his probation officer was at most an ambiguity at the waiver stage.

And it was clarified by the further admonition in the additional waiver obtained that respondent had a clear desire to speak.

Petitioner suggests to this Court the following rule or the following approach to this kind of situation.

That when interrogating officers are faced with an ambiguous response to a Miranda advisement they should be permitted to clarify the statement with further questioning in order to determine whether or not in fact the suspect is expressing an unwillingness to speak or merely making an information or request.

If upon asking those clarification questions it is clear the suspect is not invoking his Fifth Amendment right as is the case here then police should be com — permitted to begin an interrogation.

There are several things in the instant case, the petitioner submits.

Give this Court an indication of the voluntariness of respondent’s statement.

And that we submit is the only permissible goal under the Fifth Amendment whether the statement was voluntary product not obtained by overriding the suspect’s free will and based on an informed waiver of rights.

Number one, respondent nowhere alleges that it was an uninformed waiver or that he did not understand his right to an attorney or anything about the Miranda rights was unclear to him.

William H. Rehnquist:

Well, you don’t suggest, do you, Mr. Hart, that if there had been no Miranda warning, a finding of voluntariness would save the case under Miranda?

Mark Alan Hart:

Well, Mr. Justice Rehnquist, respectfully, while that issue need not be reached in this case, we would suggest that the Miranda warnings are not necessarily applicable to juvenile proceedings.

This Court has noted and respondent has conceded in his briefs on the merits that this Court has never specifically applied the precise Miranda exclusionary rule to juvenile court.

William H. Rehnquist:

What if this were an adult proceeding?

Mark Alan Hart:

In an adult proceeding, the Miranda rule is presently the law of the land and the Miranda admonitions would, of course, apply.

They are perhaps —

Thurgood Marshall:

He wasn’t in the juvenile court when he made this question in his answers, right?

Mark Alan Hart:

Yes, he was.

Thurgood Marshall:

This one —

Mark Alan Hart:

This was in —

Thurgood Marshall:

— with the police?

Mark Alan Hart:

When he made the questions and answered the police, he was arrested as a juvenile suspect.

Mark Alan Hart:

He was —

Thurgood Marshall:

Well, was it the same police that arrested other suspects?

Mark Alan Hart:

Yes, it was, Your Honor.

Thurgood Marshall:

So, what’s the difference about Miranda applying?

It’s the same officer.

Mark Alan Hart:

The difference is this.

Thurgood Marshall:

(Voice Overlap)

Mark Alan Hart:

Juvenile proceedings, while adversary in nature, are interested in some different societal goals in the adult criminal —

Thurgood Marshall:

Including a statement — confession out of him?

Mark Alan Hart:

Certainly not.

Thurgood Marshall:

Right.

Why certainly not?

Mark Alan Hart:

Because the Fifth Amendment prohibits coercion.

Thurgood Marshall:

He was different, the juvenile would —

Mark Alan Hart:

Correct.

Thurgood Marshall:

The Fifth Amendment does apply to juveniles, right?

Mark Alan Hart:

The Fifth Amendment does apply to juveniles, as this Court said so in, In re Gault.

Thurgood Marshall:

I thought so.

Mark Alan Hart:

We would concede the Fifth Amendment applies to juveniles.

Thurgood Marshall:

That’s what I thought.

Mark Alan Hart:

However, we take the following position by analogy to McKeiver versus Pennsylvania.

What applies to juveniles are the essentials of fairness within the Due Process Clause, not necessarily all of the procedural formalities that would apply in adult court because juvenile proceedings, although adversary in nature, are instituted on behalf of the minor.

The concern of the court is to find what the best disposition is for the minor.

Thurgood Marshall:

And you —

Mark Alan Hart:

As such —

Thurgood Marshall:

Is that a state matter?

Mark Alan Hart:

Well, that was — that —

Thurgood Marshall:

Is that a state matter?

Mark Alan Hart:

Juvenile proceedings in California, and I believe in most states, are instituted in — on behalf of the minor.

Thurgood Marshall:

Yes, but I mean —

Mark Alan Hart:

This Court —

Thurgood Marshall:

The question as to what type of procedure is used for a juvenile is, first of all, a state matter, and this is — the State Supreme Court passed on that, doesn’t it preclude us —

Mark Alan Hart:

Not necessarily.

Thurgood Marshall:

— in that one point?

Mark Alan Hart:

Yes.

Thurgood Marshall:

On that one point?

Mark Alan Hart:

Not necessarily Your Honor.

If the court looks at the proceedings in California as adversary in nature but not strictly criminal then based on In re Gault and McKeiver versus Pennsylvania, what the court wants to apply to juveniles is the essentials of fairness.

Now, if we can have a voluntary statement that is the product of an informed knowledgeable waiver but there has been a technical Miranda defect, that doesn’t necessarily violate the Fifth Amendment’s prescription against compelled confessions.

Particularly the case where we’re concerned — what we’re dealing with the system that isn’t strictly criminal, we’re instituting proceedings on the minor’s behalf and we’re looking for the best disposition for the minor.

In that case, artificial barriers to the truth seeking process should be eliminated.

We submit that the strict Miranda exclusionary rule is, at times, an artificial barrier.

This case is a perfect example.

The California Supreme Court says, “Per se, a juvenile who asks for his probation officer is invoking his Fifth Amendment right and we don’t need to consider whether the statement was in fact voluntary.”

If there is that statement, it must be suppressed.

I submit that is an artificial barrier to voluntariness and it results in an otherwise permissible confession under the traditional Fifth Amendment view, the view — the pre-Miranda view being excluded.

There is no basis for that kind of application in this case — to — in the juvenile court.Of course in this case our position is the minor was fully Mirandized.

He was given the standard Miranda warnings and there’s no basis for extending Miranda beyond that.

Warren E. Burger:

Do you say the strict Miranda rule as you put it should not be applied to juveniles because they are not exposed to a criminal punishment, is that your —

Mark Alan Hart:

What we say is that we shouldn’t have artificial barriers to the truth seeking process.

Warren E. Burger:

Well, I was putting the question in another way.

Mark Alan Hart:

Okay.

Warren E. Burger:

And you mean?

Mark Alan Hart:

Our position is that while they are in a sense subject to custody, there are other societal values at stake that do not necessarily exist in the adult system.

The disposition in California is supposed to be on the minor’s behalf, and the gravity of the offense doesn’t necessarily determine what the ultimate disposition of the minor would be.

Now, if a technical Miranda defect bars the court from reaching the true decision as to what’s best for the minor, we submit that’s wrong and we submit that it isn’t justified by the Fifth Amendment.

All we need provide the minors under McKeiver and Gault — yes, Your Honor?

John Paul Stevens:

Is it not correct that what you’re arguing is that even if he’d asked for a lawyer, the Miranda should not have applied?

Mark Alan Hart:

Well —

John Paul Stevens:

That it’s still the same technical obstacle.

Mark Alan Hart:

Certainly, if he conditioned his willingness to talk on the presence of a lawyer.

John Paul Stevens:

It was — instead of — everything is exactly the same in the transcript, except he says, “I want a lawyer” instead of, “I want a probation officer.”

You’d still say Miranda should not apply because it’s a juvenile.

Mark Alan Hart:

I submit that —

John Paul Stevens:

That’s your submission.

Mark Alan Hart:

A strict Miranda exclusionary rule should not apply.

John Paul Stevens:

In other words —

Mark Alan Hart:

If he would — if he says, “Can I have my lawyer present?”

And then he says, “Then, I want him here before you question me,” certainly that’s an invocation.

But, if he says, “Can I have my lawyer present?”

And they say, “Yes, you can.”

And he says, “Well, I’ll go ahead and talk to you anyway,” that’s not an invocation.

But we submit that the strict exclusionary rule which excludes otherwise voluntary statements because the suspect has uttered magic words —

John Paul Stevens:

Oh, well, supposing he said, “I want my lawyer present now.”

And they had said, “Well, we’re sorry, we can’t reach him right now.

Do you mind going ahead with the questioning?”

And he said, “Well, okay, if you can’t get him, I’ll go ahead with the questioning.”

Mark Alan Hart:

We submit that’s permissible.

John Paul Stevens:

That would be permissible?

Mark Alan Hart:

That’s permissible.

Potter Stewart:

But would it —

Mark Alan Hart:

We —

Potter Stewart:

— would it be with an adult under —

Mark Alan Hart:

Each —

Potter Stewart:

Okay —

Mark Alan Hart:

— our position is that —

Potter Stewart:

Is that the Miranda case?

Mark Alan Hart:

— it should be.

Potter Stewart:

Well, maybe it should be, but except in the Miranda case, would it be?

Mark Alan Hart:

Alright, except in the Miranda case, I think it that would still be a permissible type of questioning.

Mark Alan Hart:

Under Miranda, certainly, if the suspect asks for a lawyer and wants him present during interrogation, interrogation has to cease.

But —

Potter Stewart:

Doesn’t the Miranda say if he asks of a lawyer, interrogation must cease until he gets a lawyer?

Mark Alan Hart:

There is language to that effect, but it isn’t necessary to the disposition granted.

Potter Stewart:

Well, there’s a lot of language that’s not necessary to the decision in the Miranda cases.

Mark Alan Hart:

We would submit — we would offer the following example.

There’s a case in California upon which this case built, People versus Randall, which held that any indication which recently — reasonably appears inconsistent with the present willingness to discuss the case freely is an invocation of the right.

In Randall, the suspect was arrested and Mirandized and asked to call his attorney.

He called his attorney, spoke to his attorney, told his attorney the situation, and the attorney did not advise him to remain silent.

After that the suspect, I believe, was re-Mirandized and agreed to talk to the officers.

Now, there’s an indication where the suspect clearly wanted his —

Byron R. White:

Is that a new word in law enforcement jargon?

Mirandized, is that it?

Mark Alan Hart:

Excuse the colloquial.

He was admonished per the Miranda opinion as to what his rights were under the Fifth Amendment.

Byron R. White:

Well, you certainly did save a lot of wind by saying Mirandized.

Mark Alan Hart:

Thank you Your Honor.

In any case, the suspect in Randall, and by the way that confession was excluded by the California Supreme Court but we submit, it was voluntary under Fifth Amendment standards.

Potter Stewart:

Well, that’s not the Miranda test though.

Mark Alan Hart:

That’s true, that’s true and to that extent the Miranda test is a departure from the lauadble goals of the Fifth Amendment and the goals that I think this Court was attempting to pursue in the Miranda opinion.

Warren E. Burger:

But it is a step and it has been taken.

Mark Alan Hart:

That’s true and certainly the decision in this course — in this case doesn’t turn on whether or not there was a technical Miranda defect because, as far as the admonitions required in the Miranda opinion, those were complied with in this case.

Beyond that, there were a number of other considerations of voluntariness.

Thurgood Marshall:

Do I understand you to say that there is a case in California where a lawyer told the guy, under Miranda ruling, “Don’t talk?”

Mark Alan Hart:

No.

The lawyer did not —

Thurgood Marshall:

Then he told him, “Go ahead and talk,” didn’t he?

Mark Alan Hart:

No, he didn’t say one thing or another.

Thurgood Marshall:

He didn’t tell him not to talk, did he?

Mark Alan Hart:

Right.

Thurgood Marshall:

So, what happens to all that I — was been made to read and don’t let them talk to the lawyers, but the lawyer automatically tell him to shut up?

What happens to all of that theory we argued here every day?

Mark Alan Hart:

Well, I think the pre —

Thurgood Marshall:

I guess it’s gone, isn’t it?

Mark Alan Hart:

The presence of a lawyer during an interrogation is not necessarily so that the lawyer would —

Thurgood Marshall:

When, he said one case that says so —

Mark Alan Hart:

But there may be occasions when it will be to the suspect’s advantage to talk particularly if he had a good alibi and the lawyer —

Warren E. Burger:

Wasn’t that said along before Miranda?

Mark Alan Hart:

Certainly.

Warren E. Burger:

I believe Mr. Justice Jackson said any lawyer worth this all who’s going to tell the client not to talk until he, the lawyer, knows in private what he’s going to say.

Mark Alan Hart:

Well, we submit Your Honor that there might be indications where a lawyer would not make that statement to his client.

Warren E. Burger:

Perhaps after he’d had the private conversation.

Mark Alan Hart:

But along those lines Your Honor, returning to this case, certainly a probation officer is not going to be in the same position.

As a matter of fact is, California’s Justice Mosk noted in his concurring opinion in this case, the probation officer as a peace officer is probably under an obligation to counsel his charge to cooperate fully with law enforcement officials.

This probation —

Warren E. Burger:

You could hardly expect this respondent here to know about that obligation of the probation officer, would you?

Mark Alan Hart:

Well, number one, Your Honor, the record indicates that respondent was aware of the fact that his probation officer was a peace officer.

Number two, the record indicates, and the trial court made a finding, that this respondent had prior experience with the juvenile court system, presumably had an attorney at that prior experience and understood what he was waiving.

Number three, respondent nowhere alleges in any of his briefs that he didn’t understand what an attorney was or what an attorney could do for him or that he thought his probation officer could perform the functions of legal counsel.

But, number four, there is no justification for the per se rule adopted by the California Supreme Court below.

It cannot be said that any juvenile who asks for the presence of his probation officer is invoking the legal counsel language of Miranda.

And it’s interesting, the California Supreme Court in the opinion below, distinguished or attempted to distinguish this kind of request from a request say for a clergyman or a football coach, and said that since the probation officer is someone who has a legally recognized relationship with the minor, request for a probation officer would be reasonably interpreted as a request for counsel within the meaning of Miranda.

Petitioner submits that that conclusion does not follow from their analysis.

The clergyman, for example, also in California, has a legally recognized relationship with a particular penitent.

There is a penitent privilege.

Warren E. Burger:

Yes, but the clergyman would surely be bound by confidence with respect to anything imparted to him, whereas the probation officer would be in a contrary position, would he not?

He’d be bound to report this to the courts —

Mark Alan Hart:

Exactly, which — by statute in California, the probation officer investigates — alleges a — allegations against minors, brings the — sources those investigations to the District Attorney or to the local prosecuting authority.

At the time this instant case began in the juvenile court the probation officer by statute actually filed the petition alleging that the minor was a ward of the court and had committed a certain offense.

Warren E. Burger:

Would you hazard a guess or you don’t have to if you don’t want to, as to what the Supreme Court of California might have done if the probation officer had indeed come in response to a call and privately advised the respondent to tell everything and then it came to the California Supreme Court in that posture.

Mark Alan Hart:

Okay, two responses to that without making a guess.

Warren E. Burger:

Would it not be the State of California advising the man to surrender his rights?

Mark Alan Hart:

It would be, certainly.

First of all under California law —

Warren E. Burger:

Do you think — when you say “certainly,” do you mean that’s probably what the Supreme Court of California would decide?

Mark Alan Hart:

Well, I’m not sure what they would decide.

I would say, first, under California —

Warren E. Burger:

That’s a dangerous guess anyway.

Mark Alan Hart:

Okay, let me inform the court of the premise for my guess.

First, under California law, the probation officer would have to advice the minor of his constitutional rights himself as a peace officer.

Number two, again referring to Justice Mosk’s opinion, he speculates as to just that problem and talks about the Mutt-and-Jeff situation that this Court referred to in Miranda where you have a friendly peace officer and an adversary peace officer working at odds with each other, and he says “the case is going to come to us and surely, when it does, I don’t know what we’re going to do with it.”

Now, with that premise in mind, my guess would be that the California Supreme Court would find that by statute the probation officer is a peace officer and that in that kind of situation the advice the minor receive from the probation officer was not the advice of counsel and did not comply with the requirements of Miranda.

And that it would be just what the Court suggested that it would be a peace officer or the State of California advising the minor to cooperate.

That’s the prob —

John Paul Stevens:

Another aspect of it, he was suspicious that the person the police might bring in might not in fact be a lawyer.

Mark Alan Hart:

That’s true.

John Paul Stevens:

If the probation officer had assured him that this third party was in fact a lawyer perhaps he wouldn’t have had that concern because presumably he trusted his probation officer.

Mark Alan Hart:

Well, that’s a possibility except, I think the fact that he was re-admonished after he made that suspicion and told that he didn’t have to talk at all, that was his right.

John Paul Stevens:

Why do you suppose he asked for a probation officer?

What do you suppose motivated it?

Mark Alan Hart:

Personally, Your Honor, I think it was just an informational question.

(Voice Overlap) —

John Paul Stevens:

You know, I followed his statement, I don’t think I could trust whoever you’d bring in, that I — did — isn’t it fair to infer that he thought he could trust —

Mark Alan Hart:

Well, there’s some indication in the record Your Honor that he had been told by the probation officer to contact the probation officer whenever he had law enforcement contact.

And certainly any offense that he might have committed would’ve potentially been a violation of the conditions of his probation and the probation officer would’ve wanted to know about it.

So that perhaps is the reason although I really can’t speculate.

Thurgood Marshall:

Perhaps he really trusted the probation officer.

Mark Alan Hart:

I think there’s some indications he trusted the probation officer and I think that the trust would’ve been misplaced if he felt that — if he wanted the probation officer to act as counsel.

Thurgood Marshall:

Well, he might have wanted to — the police — the probation officer to tell him whether he was a counsel.

Mark Alan Hart:

True.

Thurgood Marshall:

Or whether this guy was a phony.

Mark Alan Hart:

True.

Petitioner doesn’t suggest that looking at all of the minor’s statements and the totality of the circumstances and his prior experience with the law enforcement officials that the trier of fact could not have found, based on the totality of the circumstances, that this minor was invoking his right to silence.

But the rule is, in California, that any minor who asks for his probation officer per se invokes his right to silence under Miranda.

But if he asks for any other confidant, a clergyman or a football coach the court will look at the totality of the circumstances.

The Fifth Amendment and Miranda do not justify that kind of approach.

Moreover, the —

William H. Rehnquist:

In form — the question was, as you say, just a request for information, “Can I have my probation officer here?”

Mark Alan Hart:

Yes, and he was told he couldn’t.

Potter Stewart:

And that — formally at least, was not a request, it was just a —

Mark Alan Hart:

That’s correct.

Potter Stewart:

To have the probation officer there was just a request for information, “can I?”

Mark Alan Hart:

That’s correct, Mr. Justice Stewart.

Potter Stewart:

But you don’t quarrel with the Supreme Court’s equating that with a request for the probation officer, do you?

Mark Alan Hart:

Well, if it was a request —

Potter Stewart:

“May I” or “I would like to have my probation officer here.”

Mark Alan Hart:

He certainly didn’t condition his willingness to talk on the presence of a probation officer.

Potter Stewart:

But you don’t quarrel with their equating that with, “I request that my probation officer be here.”

Mark Alan Hart:

Well, we do quarrel with it.

We quarreled with it below.

We claimed that it was an information or request.

Potter Stewart:

Do you here too?

Mark Alan Hart:

And we do here, too.

We don’t believe that this —

Potter Stewart:

So, you think there should perhaps be one rule if he just says, “Can I have my probation officer here?”

And another rule, “I request that my probation officer be here”?

Mark Alan Hart:

Not unless —

Potter Stewart:

Then why do you quarrel with it?

Mark Alan Hart:

Well, we quarrel with it because —

Potter Stewart:

If you think there are two different cases?

Mark Alan Hart:

If he said —

Potter Stewart:

I mean, if you think he’s not speaking —

Mark Alan Hart:

If he says, “Can I have my probation officer here and I’m conditioning my acceptance to speak on the presence of the probation officer.”

That’s one thing.

Other than that there isn’t any distinction and we wouldn’t quarrel with it.

Warren E. Burger:

Do you think this fellow in this posture would be inclined to have all these nuisances that a lawyer or a law student might put in?

Mark Alan Hart:

Perhaps not, nor would an adult criminal offender necessarily have all of the nuisances, but —

Thurgood Marshall:

Mr. Attorney General, in order he says, “Can I have my probation officer here?”

“Well, I can’t get a hold of your probation officer right now.

You have the right to have an attorney.”

And then, he said, “How will I know you guys won’t pull no police officer in and tell me he’s an attorney?”

He tells you why he wants a probation officer there, to make sure you don’t pull a phony on him.

He said so right here, doesn’t he?

Mark Alan Hart:

Then, in that case, Mr. Justice Marshall —

Thurgood Marshall:

Doesn’t he say right in the next sentence?

Mark Alan Hart:

That’s correct, and we submit that —

Thurgood Marshall:

That’s what he was talking about.

Mark Alan Hart:

His further waiver in agreement to talk is all the more voluntary because he fully understood.

Thurgood Marshall:

(Voice Overlap) “We will get you your probation officer.”

Mark Alan Hart:

Our position is at most —

Thurgood Marshall:

Didn’t he say that, they would get it?

Mark Alan Hart:

He was told that he could not have the probation office there.

Thurgood Marshall:

“Well, I’m not going to call Mr. Christiansen tonight.

There’s a good chance we could talk to him later.”

So, they gave him a good little idea that the events that they would — they dangled it in front of him, didn’t they?

Mark Alan Hart:

Following that, Mr. Justice Marshall, he was told, “Look, you don’t have to talk to us at all if you don’t want to.”

Thurgood Marshall:

(Voice Overlap) to show over and over again, which constantly is —

Mark Alan Hart:

At most, the request for —

Thurgood Marshall:

— doing what Miranda said, “don’t do.”

Mark Alan Hart:

At most, that was an ambiguous statement which police sought to clarify.

Mark Alan Hart:

The interrogation — the process of interrogation had not begun at that point.

The police were seeking to clarify whether this minor was invoking his right to silence.

Thurgood Marshall:

Question, “Will you talk to us without an attorney present?”

That’s — there’s nothing ambiguous about that, is there?

Mark Alan Hart:

The question is not ambiguous.

Thurgood Marshall:

That’s right, because they had led him up to it.

They told him they’ll get his probation officer later on.

Mark Alan Hart:

And they told him he didn’t have to talk right then at all.

Thurgood Marshall:

And after they told him they would get the probation officer.

Mark Alan Hart:

Right.

Thurgood Marshall:

After.

Mark Alan Hart:

And — I submit the minor fully understood and the trial court found that he fully understood that he didn’t have to talk to them then if he didn’t want to without the presence of the probation officer, and he agreed to talk to them at that time and the trial court found that that was a complete waiver.

We submit that the laudable goals of this Court in Miranda protecting against compelled confessions and insuring that a suspect who waives his Fifth Amendment rights is fully informed as to what he’s doing.

Those goals were fulfilled in the instant case.

This confession was absolutely voluntary and there is no justification for the per se rule that any minor who asks for his probation officer is asking for counsel within the meaning of Miranda.

We will reserve the balance of our time for rebuttal.

Thank you Your Honor.

Warren E. Burger:

Very well.

Mr. Menaster, you may proceed.

Albert J. Menaster:

Mr. Chief Justice and may it please the Court.

Albert Menaster, Public Defender’s Office, County of Los Angeles, for the minor, Michael C., respondent in this Court.

I’d like to start out by telling this Court about another youngster, this one named Joseph.

Joseph said, “I want to be an adult.

Treat me like an adult.

Use the Miranda rules that apply to adults.

Use every rule that applies to adults, please.

In every way I want to be an adult.

I don’t want to be protected.

I don’t want things done on my behalf.

I want to be treated just like an adult.”

Albert J. Menaster:

And Joseph prosecuted his case through every layer of court and one day reached this Court and this Court decided Joseph’s case by saying, “You don’t get to be an adult, Joseph.

You don’t get your jury trial.”

And the case was McKeiver versus Pennsylvania.

This Court said in McKeiver that there was something different about juveniles, something that is not the same as to an adult.

And that difference justified denying Joseph a right every adult in this country has and that’s the right to a jury.

Michael comes to this Court any — and on his behalf I read briefs by the petitioner and I have trouble with those briefs.

I can’t find the word “minor” in those briefs.

I keep hearing about defendants and suspects and what the rules ought to be, and it’s all very interesting and —

Warren E. Burger:

Well, what difference does it make whether they used the term or not, counsel?

Albert J. Menaster:

Well, the difference is that, beyond not using the term, petitioner never focuses on —

Warren E. Burger:

We all know he’s a minor.

There’s no dispute about that.

Albert J. Menaster:

Well, the problem is that petitioner fails to argue the application of the Miranda rules to juveniles.

They go off on their theories of ambiguity and their theories of totality of circumstances always focusing on the suspect, never addressing the reality that a juvenile is involved in this case.

Now, the importance — I’m glad the court asked the question, the importance is the Supreme Court of California has recognized that when a juvenile is involved, a 16-year-old as in this case, a 14-year-old, a 10-year-old, is a 10-year-old going to hire an attorney, “Oh, call up Mr. Bailey, I’d like to have him as my attorney now.”

That’s not realistic.

That does not take into account the reality of minority.

Potter Stewart:

What if he’d ask, “Can I have my teddy bear?”

Albert J. Menaster:

Well, I guess it depends on whether it’s a live teddy bear, but I think that the answer —

Potter Stewart:

Well, why — why should it?

He’s a juvenile by definition.

Albert J. Menaster:

Okay.

Potter Stewart:

Let’s say this is a nine-year-old juvenile.

Albert J. Menaster:

The answer is that a request for a teddy bear would be one of the totality of circumstances that — where the court should take into account in ascertaining whether or not that youngster was really voluntarily waiving his rights or not.

Potter Stewart:

Do you think a request in other words is the equivalent of saying, “I refuse to answer relying upon my right under the Fifth and Fourteenth Amendment.”

Albert J. Menaster:

Well, not for the teddy bear request.

That would be one of the totality factors.

As to request for a probation officer, that’s quite different.

Potter Stewart:

The court — the California Supreme Court has held that a request by a juvenile to have his probation officer or more accurately in this case, a request of whether he could have his probation officer here was the equivalent of saying, “I refuse to answer your questions based upon my rights under the Fifth and Fourteenth Amendments.”

Albert J. Menaster:

That’s correct, and that —

Potter Stewart:

Per se?

Albert J. Menaster:

Yes, that is —

Potter Stewart:

Not just one of the circumstances —

Albert J. Menaster:

That’s right.

Potter Stewart:

— in the totality?

Albert J. Menaster:

And the reason for that decision, the California Supreme Court is very careful to note and distinguish.

They distinguished music teachers, clergymen and if they thought of it they would’ve distinguished teddy bears, I guarantee you.

Potter Stewart:

And dentists, I suppose and doctors and —

Albert J. Menaster:

Yes.

I think that the line the Supreme Court is drawing is a very clear line.

Potter Stewart:

Older brothers and sisters?

Albert J. Menaster:

Older brothers and sisters.

Parents, however, would be different because the California Supreme Court in People versus Burton held —

Thurgood Marshall:

Who was he to ask for a prosecutor?

Albert J. Menaster:

Well, if he got this prosecutor, he’d be in trouble, but I think that if he’d ask for a prosecutor, he would not be invoking what Miranda talks about and affirm the —

Thurgood Marshall:

What’s the difference between a prosecutor and a probation officer?

Albert J. Menaster:

A big difference, the world of difference, and I’d like to take issue with the statement at hand —

Thurgood Marshall:

They’re both paid by the same people.

Albert J. Menaster:

It’s not true.

It is not true.

Potter Stewart:

Of course, you’re paid by the same people too, aren’t you?

Albert J. Menaster:

Yes, we all are paid by the same people.

Thurgood Marshall:

What?

Where do you get the —

Albert J. Menaster:

I suppose everybody here is paid by the same people.

Thurgood Marshall:

Where do you get —

Albert J. Menaster:

That is the people.

Thurgood Marshall:

The one point that I’m interested in right now is why is a probation officer singled out as the only person?

Suppose the guy had said, “I’d like to talk to the magistrate” or “I’d like to talk to a judge” or “I’d like to talk to a professor of law.”

Why the probation officer?

Albert J. Menaster:

Well, professor of law would be an attorney.

If he wants an attorney, that’s Miranda.

Warren E. Burger:

You mean (Voice Overlap) —

Albert J. Menaster:

There is something —

Thurgood Marshall:

There are some professors of law that are members of the Bar of this Court.

Albert J. Menaster:

Well, the California Supreme Court answered that question by very carefully delineating what it was about the probation officer that made a request for that person a natural Miranda invocation.

Thurgood Marshall:

That was only Judge Mosk’s opinion, wasn’t it?

Albert J. Menaster:

No, no, I’m talking about the majority opinion at pages 476 and 477.

The court recited —

Thurgood Marshall:

Well, give me your idea of it.

Albert J. Menaster:

I’d be glad to and it can happen — the match up with the California Supreme Court’s idea.

The probation officer in California plays a unique role.

Probation officer has a statutory duty on behalf of the minor “to act in the interests of the minor.”

It’s clearly a parens patriae attempt on the part of California to take away from parents who failed and give control to a probation officer who becomes a substitute parent in every sense of the parens patriae concept.

And, it’s that fact that distinct —

Thurgood Marshall:

It takes the place of the parents?

Albert J. Menaster:

Yes, it’s that distinctive feature of the probation officer in California in this case that made the California Supreme Court draw that line.

Thurgood Marshall:

So that — this case wouldn’t be present in any place than California?

Albert J. Menaster:

Well, I agree with that.

I — in fact —

Thurgood Marshall:

Do you agree with that?

Albert J. Menaster:

— it’s only (Voice Overlap) three years ago in California of the statutes there.

Thurgood Marshall:

Look, do you agree with that or not?

Albert J. Menaster:

It cannot be more than precedent in California.

In fact, it’s only dicta as to California.

Potter Stewart:

Did this —

Albert J. Menaster:

Because the statute as to the role of the probation office has changed since this case.

Potter Stewart:

Did your client have — was he an orphan?

Albert J. Menaster:

I don’t believe so.

I don’t think it’s in the record but I think that —

Potter Stewart:

He did have a mother.

Albert J. Menaster:

I think there were parents.

Potter Stewart:

Did he have a mother and a father?

Albert J. Menaster:

Yes.

Potter Stewart:

Then why was there any occasion of a in loco parentis?

Albert J. Menaster:

Well —

Potter Stewart:

If there were true parents?

Albert J. Menaster:

When the court — the juvenile court takes control over a minor in California and I can’t speak for the rest of the country.

The juvenile court makes a specific finding and the court can find those findings in Welfare Institutions Code Sections in California 726 through 731 removing the care, custody, and control of the minor from the parent and placing it in the probation officer.

And the court tells the minor “the probation officer is now going to be in charge of you.”

Potter Stewart:

I see.

Albert J. Menaster:

Sometimes, that means — sometimes that removal from the home.

Potter Stewart:

I see.

Albert J. Menaster:

Sometimes it doesn’t.

Thurgood Marshall:

Well, did —

Albert J. Menaster:

But that probation officer is in charge.

Thurgood Marshall:

Didn’t it in this case it said — all such papers in this record?

Albert J. Menaster:

It is clear that the minor was on probation.

Thurgood Marshall:

Are there such papers in this record?

Albert J. Menaster:

Your Honor it is clear that the minor was on probation and 726 through 731 of the Code requires that you can’t be put on probation unless that finding were made.

So that has to be true in this case.

Thurgood Marshall:

It has to?

Albert J. Menaster:

It has to be true.

The findings had to be made for the minor to be placed on probation in this case.

Thurgood Marshall:

You say this — in California he’d be all that but we have great difficulty — I have great difficulty in assuming that.

Albert J. Menaster:

Well, again it — the code sections that I’ve referred to clearly delineate the required findings that a court must make in order to place a minor on probation.

Thurgood Marshall:

Well, when was this — when was this done in his case?

Albert J. Menaster:

Well, I don’t think the record is clear as to that.

All we know is that he wasn’t —

Thurgood Marshall:

Well, (Voice Overlap) what am I suppose to understand?

Thurgood Marshall:

You don’t even know when.

Albert J. Menaster:

Your Honor, it’s not in the record.

Thurgood Marshall:

You don’t know where, when, where or why.

Albert J. Menaster:

Your Honor, it’s not in the record.

Thurgood Marshall:

Is that right?

Albert J. Menaster:

Yes, it is.

However the minor was on probation.

That is uncontested in this case and he can’t be in probation unless one of those findings was made.

He had to be removed from the care, custody and control of his parent and the probation officer had to be a substitute parent or he couldn’t be on probation.

That is required in the State of California and reading of the code sections that I’ve mentioned will clarify that.

I’d like to indicate that the petitioner in this case has managed in his summary of facts to leave out what I think is a critical fact.

It’s interesting because it’s not left out in the briefs.

It was left out in oral argument and that is this probation officer was not some artificial probation officer that the minor simply inquired of because he couldn’t think of anything else to do.

This probation officer had told Michael.

“When you get arrested, you call me up.

You demand that you be allowed to call me.”

And he was asked, oddly by the District Attorney, he was asked why he said that, what reasons were they.

And the answer was, “So I could advice Michael of his rights and make sure he understood his rights.”

The request for the probation officer in this case wasn’t an academic request.

He was complying with an order of his probation officer.

Warren E. Burger:

Do you suggest that this record does not show that he was advised of his rights by an officer of California?

Albert J. Menaster:

The record does show an advisement by police officers in California of a number of Michael’s rights.

I think that it’s —

Warren E. Burger:

Well, aren’t they the — you say a number, do you exclude from that the critical advice that we’re here talking about?

Albert J. Menaster:

There’s no question that a complete Miranda advisement was given in this case, I’m not arguing that.

But of course, an advisement from the police doesn’t mean an understanding on the part of the recipient of that advice.

Warren E. Burger:

So, you’re going to apply that generally or just to this juvenile?

Albert J. Menaster:

Well, if there’s no question that this Court has said over and over again that it must be a knowing, intelligent, and voluntary waiver of the suspect, not of the police.

The police understand the rights perfectly well.

It’s the waiver that has to be voluntary and knowing and intelligent.

Warren E. Burger:

(Voice Overlap) much use on your theory, there isn’t much use in giving the warning.

It’s a — it’s just redirect.

Albert J. Menaster:

No, it’s not redirect.

It would — the facts of this case clearly showed that Michael was given an advisement of his rights and in response to that he did not say, “Yes, I’d like to give up my rights.”

He said — he asked some questions about it.

He showed his fear.

He showed that he wasn’t sure what he was getting into.

I think the record is clear on that point and therefore, in this case what Michael was doing was asking for help to get a further understanding of what he was getting into so he wouldn’t get tricked which is exactly what he said to the police.

And a page later they say, “Well, we don’t always play fair, do we?”

Certainly, not something that’s not going to make Michael feel confident.

Thurgood Marshall:

Well, what do you do with, “Okay, will you talk to us without an attorney?”

Answer, “Yes.”

Albert J. Menaster:

Well, eventually — well, Michael says a lot of things in this record.

At one point, he says, “Yes, I want to talk to you.”

He also says, “I want my probation officer.”

He also says, “I don’t know if — how do I know you won’t bring in a police officer and tell me he’s an attorney?”

He eventually — he first — initially, when he was first asked to wait —

Thurgood Marshall:

And, at the end, he says, “Yes.”

Albert J. Menaster:

Well, I don’t think that’s the end.

After he says, “Yes,” there are three — situations — there are three occasions after that before he makes an admission where he says, “no” in response to the question, “Do you want to talk to us?”

He finally only talks after being threatened and promised and crying and breaking down in this case.

I suggest that there are no fewer than eight indications of Michael’s intention in this record.

One of which is an equivocal waiver, but the other seven aren’t and in fact, several of those are unequivocal assertions in the Fifth Amendment.

Thurgood Marshall:

Well, do you take the position that the state could’ve done one of two things till they give him a probation officer or a lawyer?

Albert J. Menaster:

Well, the police —

Thurgood Marshall:

Or did he had to get a probation officer or nothing?

Albert J. Menaster:

Well, I think that they could’ve given him a lawyer.

However, I think —

Thurgood Marshall:

Would that been alright?

Albert J. Menaster:

— we’d — might be mistaken.

Albert J. Menaster:

He wouldn’t have trusted that lawyer very much.

I don’t think that would’ve complied with the spirit of Miranda.

I think they had to bring his probation officer.

Thurgood Marshall:

So, the lawyer wouldn’t have been satisfactory?

Albert J. Menaster:

Well, if the lawyer talked with the minor, and the minor then is —

Thurgood Marshall:

Well, what are you going to do with Miranda now?

Miranda said lawyer.

Albert J. Menaster:

Yes.

Thurgood Marshall:

Now, you’re going to substitute probation officer for the lawyer and rewrite Miranda.

Albert J. Menaster:

No, I don’t want to rewrite Miranda.

Thurgood Marshall:

Please don’t.

Albert J. Menaster:

I vote not to rewrite Miranda.

However, Miranda has never been applied to a juvenile, and that’s the point I made at the outset.

If we’re going to say that only if a juvenile uses certain words, “attorney,” a word that adults would use, does the Fifth Amendment become invoked?

Then we are ignoring the reality that Michael wasn’t an adult.

He was a juvenile.

Juveniles aren’t expected, I don’t expect juveniles, to ask for attorneys and let alone understand their rights sufficiently to be able to assert them.

And therefore, this Court has to decide one of two things.

Either, we ignore the fact that Michael is a juvenile and require him to comply with adult standards.

In which case I guess you got to give us a jury because that’s only fair.

Either Michael is an adult or he’s not.

Potter Stewart:

Also, the state would be free to put him in the gas chamber and kill him too on conviction —

Albert J. Menaster:

That’s right.

Potter Stewart:

— if he was an adult.

Albert J. Menaster:

That’s right.

Fair is fair.

Either we get the rights or we don’t.

Either Miranda applies differently to juveniles or it doesn’t.

William H. Rehnquist:

Doesn’t Miranda say that the police must advice him of his right to an attorney, not that he — they can question him only if he raises it on his own motion, so to speak?

Albert J. Menaster:

Yes.

William H. Rehnquist:

So, it isn’t a question of the juvenile having to think up a right to an attorney.

The police have to tell him that.

Albert J. Menaster:

Yes, but the reality — it’s not a question of the minor understanding that he has a right to an attorney.

It — some 10-year-old is going to get on the phone and call up an attorney and say, “I hereby hire you.”

That’s just not realistic.

William H. Rehnquist:

Well, Michael —

Albert J. Menaster:

Who’s going to get the attorney?

William H. Rehnquist:

Michael wasn’t a 10-year-old, was he?

Albert J. Menaster:

He was a 16-year-old who’s on probation and afraid the police were going to trick him and they sure did, didn’t they?

William H. Rehnquist:

I don’t think they did.

Albert J. Menaster:

Well, they told him he was going to be better off.

He’s sitting in custody in California right now and he doesn’t think he got the best into that deal.

First, who fired the gun is still on the streets, but that’s another point.

The point is that the fact of the matter of advising the minor as an attorney doesn’t satisfy the requirement.

The youngster doesn’t know how to get an attorney.

We don’t expect 16-year-olds, 10-year-olds to know attorneys off the top of their heads, let alone even to know about public defender systems.

William H. Rehnquist:

Well, how does a 22-year-old necessarily know how to get an attorney?

Albert J. Menaster:

Well, we draw a line somewhere, I admit.

And, I think that the rules of the system in California drawing a line at 18 between juveniles and adult is a recognition that with majority comes maturity and certain requirements are — we assume are going to be applicable to a person who’s an adult.

To a person who’s a juvenile, it is unrealistic.

As the Supreme Court of California said in Burton, it is unrealistic to expect that a youngster is going to ask for an attorney and be able to get one.

He’s going to get his parents to get him an attorney or as in this case a probation officer to with was suggested earlier, ensure that the attorney that’s brought in is a bona fide attorney and not a sham.

I think that’s quite clear from this record.

I would like to stress one further point and that is, we have heard over and over again about how this probation officer was a peace officer.

The California Supreme Court expressly relied on the California statute, Welfare and Institutions Code Section 280, which says that the minor — that the probation officer is required to act in the interests of the minor.

That’s statutory duty, that is mandated by a California Code Section, was construed by the court in California as the reason why a request for a probation officer in this case invoked Miranda.

And I want to disagree with something else the petitioner has said.

Petitioner said, “any request by a minor for any probation officer invokes Miranda per se, according to the California Supreme Court.

That is not true.”

It is clear from the California Supreme Court’s language.

Albert J. Menaster:

They were saying, “Michael’s request in California for a probation officer in this case, remember the background, the probation officer advising the minor to call him so he could advice him of his rights and help him understand the rights, obviously help him ensure the trustworthiness to make sure that an attorney was reliable and not a sham artist, that was what the California Supreme Court relied on.

Warren E. Burger:

What would you say counsel if the probation officer had come, had a private conversation with the young man for a half hour or an hour then came in and said, “I’ve advised my client or my — whatever they call him, patient or my charge to tell you the whole story.

I think in the long run that’s going to be the best thing for him.”

And then he told the whole story.

What would you say about that?

Albert J. Menaster:

Well, let me point out that this Court doesn’t have to reach that issue but I would like to answer it.

Warren E. Burger:

Well, no.

We ask a lot of hypothetical questions.

Albert J. Menaster:

I’d be glad to answer it.

I think that a statement under those circumstances would not be admissible because the minor asking for the probation officer, asking for that person prescribed by the Court to act on his behalf.

He thinks he’s getting somebody acting on his behalf.

If the probation officer comes in and plays the role of prosecutor, becomes an agent of the prosecution just like the sham attorney.

Warren E. Burger:

Do you think a lawyer who advises his client to tell the truth and throw himself on the mercy of the court is acting like a prosecutor in every case?

Albert J. Menaster:

No.

No and I think the difference is that the attorney has a duty on behalf of the youngster.

If a probation officer fulfills that duty on behalf of the youngster and the result is the minor should make a statement, that’s one thing.

But if he acts as a prosecutor and enhances the ability of the prosecution to get a statement from the minor when the minor doesn’t really want to make a statement then he’s contradicting that role.

Then he’s been duped.

Then he has the equivalent of a sham attorney that Michael was so worried about.

William H. Rehnquist:

Mr. Menaster, a moment ago I thought you said that the California’s Supreme Court’s decision turned on the facts of this case.

Perhaps I misunderstood you.

I want to ask you about the language at page 25 of the petition for writ of certiorari where they say, “Here, however, we face conduct which regardless of considerations of capacity, coercion, or voluntariness, per se, invokes he privilege against self-incrimination.

Thus, our question turns not on whether the defendant had the ability and capacity or willingness to give a knowledgeable waiver and henceforth he acted voluntarily but whether when he called for his probation officer he exercised his Fifth Amendment privilege.”

That sounds to me like a per se rule not under these particular facts of this particular —

Albert J. Menaster:

Oh, I don’t agree.

The first word in that sentence is the crucial word and it’s the word “here.”

The California Supreme Court discussed the dynamic of this relationship, the extraordinary unique facts involving this case in fashioned rule that I submit is a very narrow rule.

Now, I would be glad to have this Court of the California Supreme Court fashion it really broadly, but all that the California Supreme Court did in its writ — read the opinion over and over again.

They say, “Michael’s request in this case was for his probation officer invoked his right.”

They repeatedly used that phrase.

Warren E. Burger:

You have emphasized that under this California statute the probation officer must act in loco parentis in every situation.

Suppose you had a 16-year-old was — not on probation, no prior criminal record, in the same posture and he said, “I want to talk to my father first and my mother.”

And the father and mother are brought in.

They spend an hour talking alone and I’m sure you can find many cases on record precisely to this effect, and then they come out and the father says, “We have decided to tell Joseph to tell everything.

We think that’s in his best interest.”

And then he tells everything.

Albert J. Menaster:

Well, the critical —

Warren E. Burger:

Is suppressible?

Albert J. Menaster:

The critical question is exactly what role the parents played.

There is a case in California involving —

Warren E. Burger:

Well, they played the role that I’ve just described.

Albert J. Menaster:

There’s a case in California involving an attorney who talks to a suspect because the police asked him to and the police say, “Listen, if you get this suspect over here to make a statement, we’ll let your client out.”

Attorney says, “Oh, goody,” goes in and gets the person to make a state —

Warren E. Burger:

That’s another case.

I —

Albert J. Menaster:

No, but the point is —

Warren E. Burger:

Would you care to address my question?

Albert J. Menaster:

The point is that the role the attorney — the parents play is the critical question.

If the parents advise a minor of his rights, assist him in understanding his rights, in other words, assist what Miranda is trying to get at that understanding a waiver of rights, there’s nothing wrong with it.

The parents act on behalf of the police to get a statement out of the minor, analogous to the attorney example I just gave then it’s not a valid waiver because he’s been duped.

That’s the critical difference.

Thurgood Marshall:

Mr. Menaster, suppose the — a very simple case, hypothetical and I hope, suppose the probation officer dropped dead.

He couldn’t question him, right?

Albert J. Menaster:

Right.

Thurgood Marshall:

He couldn’t question him.

Albert J. Menaster:

Right.

Thurgood Marshall:

Where in the world can you get support for that?

Albert J. Menaster:

Well, it’s just a hypothetical.

It seems to me that the logic of what the re — the significance of the minor’s request is what we’re focusing on.

And if the minor shows that he doesn’t trust the police.

Albert J. Menaster:

He’s not sure he’s going to get the advice and the cooperation that he needs to really make a waiver that whatever else happens doesn’t matter.

That minor has asserted his rights under the Fifth Amendment.

Thurgood Marshall:

So, you can’t — nothing he says can be used against him.

Albert J. Menaster:

That’s right.

Thurgood Marshall:

Forever?

Albert J. Menaster:

Well, perhaps in the next crime.

I don’t know.

The —

Thurgood Marshall:

Oh, no, the probation officer is still dead.

Albert J. Menaster:

Well, he’s going to get another one eventually, I suppose.

Thurgood Marshall:

Yes, but I mean, he could go out there and commit three more crimes.

He could be convicted of anything in your book.

Albert J. Menaster:

That would — that same rule would be true.

Thurgood Marshall:

Until the probation officer was reincarnated.

Albert J. Menaster:

The same rule would be true of course, if the defendant said, “I want Mr. Bailey as my attorney.”

In fact Mr. Bailey was his attorney and Mr. Bailey dropped dead.

If he’s — he keeps asking for his attorney, the police can’t say, “Well, he’s dead, therefore, we get to question you.”

I think that’s a clear violation of Miranda and that’s the same question.

Thurgood Marshall:

Are you saying the probation officer (Inaudible) the moment he’s dead.

Albert J. Menaster:

I don’t.

Thurgood Marshall:

They are two different animals.

Albert J. Menaster:

California Supreme Court has held —

Thurgood Marshall:

The California’s — well, is the probation officer member of the bar?

Albert J. Menaster:

No.

Well, some are, but I presume that this one wasn’t.

Thurgood Marshall:

Well, there’s a difference between members of the bar and lawyers.

Albert J. Menaster:

Right.

Thurgood Marshall:

Do you recognize that difference?

Albert J. Menaster:

Yes.

Thurgood Marshall:

Alright.

Thurgood Marshall:

Is he a lawyer?

Albert J. Menaster:

I assume not.

Thurgood Marshall:

Right.

Albert J. Menaster:

But of course that’s not the point.

Thurgood Marshall:

But he has —

Albert J. Menaster:

Neither is the parent and the California Supreme Court has said that if a you — if a youngster —

Thurgood Marshall:

I’m not interested in any question from you.

When you answer my question, please answer it and don’t ask me another one.

Albert J. Menaster:

I wasn’t asking a question.

Thurgood Marshall:

Because I don’t get paid to answer your question.

Albert J. Menaster:

Well, I hope I get paid to answer them.

And my answer is that the same would be true if a youngster asks for an — for his parent instead for an attorney.

If a youngster shows in a way that a youngster would that that youngster wants help in understanding his rights, then that’s an invocation of the Fifth Amendment.

It’s not fair to juveniles.

It misses the point of McKeiver to say that the youngster can only assert his rights by using an adult formulation.

The reality is that youngsters are young persons, and young persons ask for things in a different way.

It would be like making up a special word, a long word that had to be said and youngsters couldn’t say the word.

Youngster could — knows that he has a right to an attorney, but he also knows that he can’t hire an attorney.

That’s what he has to have a parent or probation officer for.

He knows that if they bring an attorney, he’s never heard of him, he doesn’t know whether he’s going to be tricked or not.

In fact the police are threatening this minor.

I think it’s quite clear that Michael was terrified of the police.

He wants somebody to give him a guarantee that that attorney is on the up and up, and that’s why he’s asking for his probation officer in this particular case.

I’d like to turn to another point, which I think has not been stressed nearly sufficiently in this case and that is that beyond the technical Miranda issue in this case there is a further issue.

An issue not referred to at all in petitioner’s opening argument and that is that independent of the Miranda grounds there is a second issue here concerning the voluntariness of the confession apart from the request for the probation officer.

Michael repeatedly is asked, in fact he’s asked within half a page of this supposed waiver, “Do you want to tell us about the murder?”

Answer, “No.”

Petitioner says that’s ambiguous, I’ve been figuring — trying to figure out how that could possibly be ambiguous and I still can’t figure it out.

Perhaps petitioner will tell us.

Three or four pages later, he’s asked, “Do you want to tell us what happened?”

Albert J. Menaster:

He says, “No.”

Three to four pages after that, they said, “Do you want to tell us what happened?”

He says, “Can’t.”

Finally, after 10 pages of exchange in which Michael makes no admission, no confession of any kind, it wouldn’t be usable worth a wit in any proceeding before he makes any kind of statement, the police finally say, “Okay, that’s it.

Somebody is going to come out of this pretty good and the one who tells us what happen is the one who’s not going to get hassled.”

Michael then — there’s been a pause in the recording and, during that pause described by both trial counsel and the trial court, that’s characterized as crying.

So, Michael’s threatened.

He cries.

He breaks down and then he immediately makes the statement.

That’s the form — forms the basis for this confession.

Now, I find it hard to believe that that’s not an involuntary statement forgetting Miranda.

Just on the standard voluntariness totality of circumstances test.

It seems to me, the petitioner has not dealt with that problem and that petitioner needs to.

Let me go back then to the critical issue that I think applies to this case.

This Court has to decide whether juveniles are going to be treated like juveniles when it comes to jury trials perhaps bail.

But, when it comes to Miranda, we’re going to make juveniles be adults and use adult words in order to invoke a right when they clearly are terrified, they’re being threatened, they’re asking for help.

I find it amazing, amazing that petitioner characterizes this as simply an informational inquiry.

I suppose Michael — the theories that Michael would like to come before this Court and go to the police station and say, “Well, I have an academic question.

I’m writing kind of a thesis on constitutional rights.

Could you just tell me what you think the Supreme Court will decide and whether I have the right to a probation officer or not?”

I think that that’s an incredible reading of this record, unbelievable reading of this record.

And I think that a fair reading of this record is that Michael wanted help because he wanted to make sure he wasn’t going to be tricked.

In fact, he got tricked I contend.

The point is that Michael ought to be treated as a juvenile because he was a juvenile at the time of this case.

He was treated as a juvenile and it is artificial and unrealistic to expect that only a request in adult terms is sufficient to satisfy what Miranda was talking about when it was talking about protections.

Incidentally, I would like to disagree with petitioner on one further point and that is I think Miranda applies to juveniles.

We have yet a further extension by petitioner in this case.

Petitioner wants this Court to treat juveniles like juveniles when it comes to jury trials but don’t treat them like adults even if they ask for attorneys, a request which would invoke Miranda in any adult case.

It’s an incredible position, a position not mentioned in the briefs incidentally and one which I think this Court should summarily reject.

This Court has to decide in this case how to apply Miranda to juveniles.

Albert J. Menaster:

This is not an extension of Miranda.

It is an application of Miranda.

This Court will choose either to apply Miranda in such a way as to make it artificial and require juveniles to be adults when they’re not required anywhere else to be adults where it will recognize the realities of a juvenile situation.

And it will conclude that where a juvenile shows that that juvenile wants help, that it is not fair, it is a violation of the Fifth Amendment for the police to continue to interrogate him.

I’d like to close with just two thoughts.

First of all, the incredible argument by petitioner that there was an equivocal waiver in this case and true, once Michael says, “yes,” sandwiched in between all of these no’s and what about being tricked and that sort of thing reminds me of a wizard of a cartoon where the king says to the lawyer, “Your client confessed,” and the lawyer says, “How do I know it was voluntary?”

And the king says, “Because look, there’s your client’s signature right there underneath the bloodstains.”

It seems to me that in this situation Michael made an equivocal waiver but he did everything else he could possible think of to say he didn’t want to waive.

He showed fear.

He showed anxiety.

He asserted his rights under the old involuntariness test, I submit, that Michael clearly asserted his rights sufficiently to invoke the Fifth Amendment, apart from any Miranda consideration.

I think that the bottom line of this case is that petitioner in this case is arguing that because of the technical nature of Miranda we have to be very cautious in analyzing what kinds of things we’re going to technically invoke.

It reminds me of a quotation from Justice Wisdom who said that if police efficiency were the only important thing then the rack would be alright.

There are things more important than police efficiency, and they happen to be listed in the Bill of Rights.

I charge this Court with deciding whether juveniles are juveniles.

Whether Miranda applies to juveniles and recognizes the reality of juveniles or whether this Court will hide its head in the sand, pretend juveniles are adults, deny them rights when that argument is made, but deny them rights when they assert what are juvenile rights in the same context.

And I would ask the Court to carefully consider the decision in this case for the impact it will have on probation systems on juvenile systems throughout this nation.

Warren E. Burger:

Do you have anything further, counsel?

Mark Alan Hart:

The problem with the magic words approach adopted by the California Supreme Court that a request for a probation officer is per se a Fifth Amendment invocation is that it does not necessarily bear any relationship to the Fifth Amendment.

We submit that this approach of attempting to determine or predict the subjective intent of any minor who asks for his probation officer takes away the traditional role of the trier of fact to determine if in a given instance a minor is making a voluntary statement.

The critical factor in Miranda was whether a suspect wanted to speak.

This Court found that a request for an attorney is reasonably an indication that a suspect doesn’t want to speak.

There is no basis for the same reasonable per — the same conclusion and the same per se rule with respect to probation officers.

This Court noted that in, In re Gault when the State of Arizona attempted to argue that they didn’t have to provide the minor with counsel because the probation officer could provide him all of the services of the attorney and this Court rejected that.

Noted that probation officers in the Arizona scheme were also peace officers and that they initiate proceedings involving the minor and they could not provide the same assistance.

If a probation officer cannot fulfill the traditional goals of legal counsel then a rule which said any minor per se invokes his Fifth Amendment right by asking for his probation officer bears no relation to the goals of the Miranda Court and bears no relation to the Fifth Amendment.

I’d like to talk just briefly about the other contention of respondent that indications in the record, apart from the request of the probation officer, indicate that the minor was invoking his rights.

Respondent isolates all of those statements from the context of the record, and I think we’ve discussed it pretty well in our brief.

For example, the first one that respondent mentioned where he was asked about the murder and he says, “No.”

What he said was, “No, I don’t know anything about it.”

Mark Alan Hart:

Now, it seems to me that in the course of any interrogation or any conversation there are going to be times when there’s a hesitation.

There are going to be times when a suspect may deny participation in an offense but each one of those is not a separate invocation of the Fifth Amendment.

It’s something for the trier of fact to look at.

The trier of fact in this case and the California Court of Appeals and the California Supreme Court, all found that none of those were indications of the Fifth Amendment invocation.

The sole issue in this case is whether the request for the probation officer was such an invocation.

We submit that it was not.

We submit that the standard with respect to juveniles should be voluntariness based on the totality of the circumstances, a standard employed by the trial court in the instant case.

And we would submit the matter if there are no more questions from the bench.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.