N.C. v. Commonwealth

VENTERS, J.,

Dissents:

I agree with Justice Cunningham that the ordinary Miranda-analysis to determine if a statement was made while “in custody” is not required where a minor admits to a public offense in response to questioning by a school authority about a school-related issue. However, I would go further. For the reasons set forth below, I am recommending that this Court chart a new course.3

LIMITED APPLICATION OF THE EXCLUSIONARY RULE

In juvenile delinquency cases (“public offense actions”4) adjudicated in the juvenile division of the District Court, we should exclude probative evidence under the exclusionary rule only where it “serves to deter deliberate, reckless, or grossly negligent” police conduct5 and, in the case of Fifth Amendment violations, only where the circumstances indicate the statement was actually involuntarily given or was produced under circumstances that cast doubt upon its reliability. In such circumstances, and in youthful offender cases transferred to circuit court for an adult-like trial, the exclusionary rule would apply in its traditional form. Otherwise, however, the exclusionary rule should not apply in a juvenile court adjudication. The rule I propose does not conflict with any provision of the Kentucky Revised Statutes, or any published opinion of a Kentucky court.6 It does not offend any part of the Kentucky Constitution or the Constitution of the United States.

The United States Supreme Court has never explicitly determined that the exclusionary rule must be applied in typical juvenile court delinquency cases. That *872Court’s well-established pattern of applying the exclusionary rule only when the benefit of its deterrent effect outweighs the social costs incurred when valuable evidence is ignored, has never been applied to this question. I believe that when that balancing test is applied, it quickly becomes obvious that the broad, unlimited use of the rule, exacts too high of a cost upon both the troubled youth and the community that surrounds him, and it fails to deliver upon the promise of deterring bad police behavior.

In short, the exclusionary rule is antithetical to the overarching principles for which Kentucky’s juvenile court system was established. On the one hand, it is questionable whether use of the exclusionary rule actually serves its intended purpose — deterring future misconduct by police, which is the only rationale given to support the rule. On the other hand, it cannot be reasonably doubted that allowing a juvenile offender to elude responsibility for his misdeeds teaches the misleading lesson that sometimes you really can “get away with crime;” and that, on occasion, “crime really does pay.” Applying the exclusionary rule in a juvenile court public offense action makes sense only to those who believe that children benefit from the lesson that suppressing the truth is a good thing, and that slapping a police officer’s wrist is more important than providing a wayward child with the treatment and tools he needs to lead a responsible life.

As noted, I readily distinguish the typical public offense action processed to conclusion in the juvenile court from the youthful offender cases that are transferred to circuit court for trial. Obviously, these two very different processes are driven by opposing social policies — the former is driven by what treatment is in the child’s best interest; the latter is driven by what punishment is adequate, in society’s best interest, to vindicate the peace and dignity of the Commonwealth. That critical difference substantially alters the calculus by which we weigh the efficacy of the exclusionary rule. Given that difference, it is absurd to say that because the exclusionary rule applies in the latter case, it must also apply in the former. I would also submit that under the prevailing U.S. Supreme Court analysis, it is necessary to draw a distinction between the cases in which a juvenile’s inculpatory statements, though ill-advised or uninformed, were nonetheless voluntarily made, and the cases in which circumstances, like coercive police conduct, cast reasonable doubt upon the voluntariness of a youngster’s custodial confession. In exclusionary rule analysis, deterrence of improper police conduct is balanced against the cost to justice of sacrificing probative proof. It follows that when the police misconduct is more offensive, the need to secure personal liberty makes us more willing to pay the cost of excluding valuable evidence. Therefore, I would apply the exclusionary rule when the objective of the case is the prosecution of a youthful offender, and in cases where the police acted with a purposeful or a grossly neglectful disregard of constitutional liberty. In juvenile court delinquency (or “public offense”) actions, where we must focus on the child’s best interest and provide treatment needed to improve his condition, we cannot afford to exclude evidence from the judge’s consideration simply because, as in this case, a child was not advised of his right to remain silent.

A fair consideration of this view must begin with a brief overview of the exclusionary rule’s development.

I. DEVELOPMENT OF THE EXCLUSIONARY RULE: OPINIONS OF THE UNITED STATES SUPREME COURT

The exclusionary rule is a judicially created means of deterring police misconduct *873that violates Fourth and Fifth Amendment protections. Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (citing United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974)). It is not a. personal constitutional right in itself; it was not designed to redress the injury of constitutional violations; instead, the rule operates to deter future violations by depriving the government of the fruits of such infringements. Withrow v. Williams, 507 U.S. 680, 686, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993) (quoting Stone v. Powell, 428 U.S. 465, 486-93, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) and Linkletter v. Walker, 381 U.S. 618, 637, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965)); see also Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (“The rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.”).

The exclusionary rule has been a reluctantly-applied, “last resort”7 measure imposed in criminal cases despite its substantial costs to justice and public safety, because it is necessary in the long term to protect constitutional liberty from governmental abuse. A review of the rule’s development typically begins with Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).

In Weeks, a United States marshal in the company of local police officers, without a warrant, “invade[d] the house and privacy of the accused” while he was away and seized his documents. The United States Supreme Court held that the purloined papers should have been returned to the accused, and could not be used as evidence in a federal criminal trial. Id. at 398, 34 S.Ct. 341. The Supreme Court noted that the Fourth Amendment’s “limitations” restrained only the conduct of federal officials, not state officials. Id. In Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), the Supreme Court applied the exclusionary rule to Fourth Amendment violations by state officers. Just before Mapp, the Court reached the same conclusion with respect to the Fifth Amendment right against involuntary self-incrimination. It held in Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961) that a confession “not freely self-determined” because it was obtained by conduct of state law enforcement officials intended “to overbear a suspect’s will to resist” violated the Fifth Amendment and could not be admitted in state court criminal trials.

Rogers set the stage for the well-known Miranda v. Arizona decision, in which the Supreme Court resolved that unless an individual in custody was “warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires ... no evidence obtained as a result of interrogation can be used against him.” Miranda, 384 U.S. 436, 479, 86 S.Ct. 1602 (1966).

In subsequent cases, the Supreme Court has refused to apply the exclusionary rule in the following kinds of cases:

a. Grand Jury Proceedings—United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974);
b. Deportation Proceedings—INS v. Lopez-Mendoza, 468 U.S. 1032, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984);
*874c. Parole Revocation Hearings—Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998);
d. Civil Tax Proceedings—United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976);
e. Officer’s Good Faith Action—United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); see also Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (the exclusionary rule was not applicable where police conducted a search pursuant to an arrest warrant, not knowing that the warrant had been withdrawn.).
f. Violations of the knock and announce rule—Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).

The determination of whether and when the exclusionary rule is applied is not random. The Supreme Court has determined that whenever it considers whether to extend the exclusionary rule beyond its traditional criminal trial origin, it will subject the competing societal interest to a balancing test.

II. EXTENSION OF THE EXCLUSIONARY RULE — A BALANCING TEST

Because the purpose of the rule is to act as a deterrent, “it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons.” Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Instead, its application “has been restricted to those areas where its remedial objectives are thought most efficaciously served.” Calandra, 414 U.S. at 348, 94 S.Ct. 613. In Janis, the Court said, “[i]f ... the exclusionary rule does not result in appreciable deterrence, then, clearly, its use in the instant situation is unwarranted.” 428 U.S at 454, 96 S.Ct. 3021. Because “the [exclusionary] rule is prudential rather than constitutionally mandated” the Court “held it to be applicable only where its deterrence benefits outweigh its ‘substantial social costs.’ ” Scott, 524 U.S. at 363, 118 S.Ct. 2014 (citing United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)).

This cost vs. benefit test for determining where the exclusionary rule applies remains the critical factor in Supreme Court analysis. For example, when the Court rejected the application of the exclusionary rule to “knock-and announce” violations by police in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), it said:

Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,” which sometimes include setting the guilty free and the dangerous at large. We have therefore been “cautio[us] against expanding” it, and “have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application.” We have rejected “[ipidiscriminate application” of the rule, and have held it to be applicable only “where its remedial objectives are thought most efficaciously served,” — that is, “where its detemnce benefits outweigh its ‘substantial social costs [.]’ ”

Id. at 591, 126 S.Ct. 2159. (citations omitted)(emphasis added).

“Proposed extensions of the exclusionary rule to proceedings other than the criminal trial itself have been evaluated and rejected under the same analytic [balancing test] approach.” Leon, 468 U.S. at 909.104 S.Ct. 3405. Noting again that the benefit of deterrence achieved by exclud*875ing valuable evidence must be weighed against its substantial social costs, the Court, in Herring reiterated that the exclusionary rule “serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” 555 U.S. at 144, 129 S.Ct. 695. The Court then added: “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Id. (emphasis added).

The United States Supreme Court has yet to consider explicitly whether the exclusionary rule should be applied to exclude the un-Mirandized statements of a juvenile suspect from a “public offense action” (or routine delinquency case). The Court has never conducted the analysis required by Hudson, Leon, Herring, Scott, Stone, Lopez-Mendoza, and • Calandra; that is, it has never weighed the likely deterrent benefits of applying the rule against the societal costs of depriving juvenile court judges and caseworkers of essential evidence needed to stop the descent of a young person into a criminal lifestyle. The Court has also not evaluated the effect of the exclusionary rule upon the strong public policies expressed by state legislatures, such as the policies codified in Kentucky’s Unified Juvenile Code.

The Supreme Court approached the issue of the juvenile courts’ use of the exclusionary rule in Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). However, its decision in that case affirmed the juvenile court’s determination that the child’s rights were not violated and thereby eliminated any exclusionary rule concerns. In the case of New Jersey v. T.L.O, 469 U.S. 825, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) the Supreme Court granted certiorari to address that very question of exclusionary rule applicability in the juvenile court setting. Again, the Court concluded that no constitutional rights of the child had been violated, and so it declined to address the broader issue of the exclusionary rule. Most recently, in J.D.B. v. North Carolina, — U.S. —, 131 S.Ct. 2394,180 L.Ed.2d 310 (2011), the Court held that the age of a child questioned by police should factor into the determination of whether the child was in “custody” for purposes of providing Miranda warnings. The child’s age mattered, the Court said, when deciding if the juvenile’s “will was overborne” by the circumstances of the police interrogation. The Court’s concern arose from its observation that “the pressure of custodial interrogation” can be so immense as to induce a “frighteningly high percentage of people to confess to crimes they never committed[,]” a risk all the more troubling and acute when the subject being interrogated is a juvenile. Id. at 2401. By remanding the case for the state courts to determine whether the child was “in custody,” the Court again evaded the larger question of whether the exclusionary rule should bar the juvenile court’s consideration of every un-Mirandized statement in a juvenile case.

One could, upon conjecture, speculate that the Court would not have remanded the case if it had thought the exclusionary rule was inapplicable in the juvenile proceeding. But, of course, if the child was not in custody the question of excluding un-Mirandized evidence is immaterial. A more plausible assessment might be that since the Court has never applied its prescribed balancing test to determine if the exclusionary rule applies in a juvenile court case, the Court has purposefully left that question unresolved. In any event, nothing in J.D.B. is inconsistent with the directive in Herring, supra, that “to trigger the exclusionary rule, police conduct *876must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”

The question that remains is whether likely benefits to constitutional liberties that might be derived from deterring the un-Mirandized interview of juvenile suspects is worth the price paid first, by juvenile offenders who thereby evade the therapies of the juvenile court system, and second, by the community at large, which ultimately bears the costs of un-atoned juvenile delinquency.

III. APPLICATION OF GAULT— RIGHTS OF JUVENILE SUSPECTS

The position asserted herein is in no part dependent upon the supposition that the juvenile has no cognizable Fourth and Fifth Amendment Rights, and Due Process Rights under the Fourteenth Amendment. Unquestionably they do. But having such constitutional protections does not equate to having the “benefits” of the exclusionary rule. If it did, the rule would extend universally to deportation hearings, parole revocations, civil actions, and wherever else one may suffer the use of ill-gotten evidence.

The landscape of juvenile court adjudication changed for the better with the Supreme Court decision in Application of Gault,8 387 U.S. 1, 17, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Gault established with clarity that the Fourth Amendment protection against unreasonable search and seizure, the Fifth Amendment protection against being compelled to give evidence against oneself, and the Right to Due Process9 are shared by all, adult and minors alike. Id. at 31-57, 87 S.Ct. 1428. These basic constitutional rights include the right to notice of charges, the right to counsel, the privilege against self-incrimination, and the right to confrontation. The Court in Gault intimated, but did not explicitly state, that evidence obtained in violation of the juvenile’s rights could be excluded from the evidence used to determine his guilt. The Court based its conclusion upon the fact in Gault that the juvenile being “tried” was exposed to very adult-like punishment. Even though the juvenile would not be “convicted” of a crime like an adult, but would merely be labeled as “delinquent,” the child in Gault was “subjected to the loss of his liberty for years[,T a punishment the Court found to be “comparable in seriousness to a felony prosecution.” Id. at 36, 87 S.Ct. 1428.

Gault was a 1967 case, and since then much has changed in juvenile adjudication, in large part because of Gault. Under modern juvenile justice codes, the juvenile would be subjected to the youthful offender process, as provided for in KRS Chapter 640. Under the view I assert herein, the exclusionary rule would apply in cases like Gault, what we call youthful offender prosecutions, just as it applies for any adult being prosecuted for a felony in circuit court. But a different procedure driven by a different legislative policy drives the typical juvenile court “public offender action” in Kentucky, where KRS 635.060 limits the public offender’s punishment of *877detention, regardless of the seriousness of the offense, to “an approved secure juvenile detention facility, juvenile holding facility, or approved detention program” for a period of not more than forty-five days for children between fourteen to sixteen years of age, and not more than ninety days for sixteen and seventeen year olds. The dissimilar treatment reflects the different social policy at work, and thus is tried under a different procedure that merits special consideration of what and when the court must ignore highly probative evidence. The point is, as Gault well-establishes, juveniles have constitutional protections akin to those of adults, and when they are confronted with adult-like criminal prosecution and adult-like punishment, the exclusionary rule applies. But when different circumstances exist, different considerations are present, and different rules apply — as in the deportation, parole revocation, and tax cases.

IV. KENTUCKY LAW — APPLYING THE BALANCING TEST

We cannot properly apply the exclusionary rule in Kentucky juvenile court actions without having considered its effects and its social costs on the important public policy objectives embedded in Kentucky’s juvenile code. This Court has previously recognized the distinct policy goals that distinguish the adult justice system from the juvenile justice system. “The Juvenile Code was enacted with the stated goal of rehabilitating juvenile offenders, when feasible, as opposed to the primarily punitive nature of the adult penal code.” Phelps v. Commonwealth, 125 S.W.3d 237, 240 (Ky.2004) (emphasis added).

As discussed above, the United States Supreme Court cautions against over-extending the exclusionary rule because of its “costly toll upon truth-seeking and law enforcement objectives.” Hudson, 547 U.S. at 591, 126 S.Ct. 2159. In juvenile court public offender actions, “truth-seeking” is not just a laudable goal, a hoped-for result; it is the statutorily-mandated, “law enforcement objective” of the juvenile court judge. KRS 610.080(1) directs that “[t]he [public offender] adjudication shall determine the truth or falsity of the allegations in the petition [.]” (emphasis added). In an adult prosecution or a youthful offender trial the jury determines only if guilt has been established beyond a reasonable doubt. The jury never determines if the charge is, in fact, “true or false.” The purpose of the juvenile court statutes is to “promote the best interests of the child through providing treatment and sanctions to reduce recidivism and assist in making the child a productive citizen by advancing the principles of personal responsibility, accountability, and reformation, while maintaining public safety, and seeking restitution and reparation[.]” KRS 600.010(2)(e). Therefore, finding the “truth or falsity” of the accusation is absolutely critical to providing the effective and responsible treatment directed by the legislature.

When the truthfulness of the juvenile adjudication is skewed by the artificial rejection of credible and highly-probative evidence, the social policy to be implemented by the statute is thwarted. Ignoring a fact so important as a credible, but ill-advised and uninformed admission in a juvenile action also impedes that directive of KRS 600.010(2)(d) that mandates, “[a]ny child brought before the court under KRS Chapters 600 to 645 shall have a right to treatment reasonably calculated to bring about an improvement of his or her eondition[.]” It can fairly be said that depriving the juvenile court of critical information about a wayward child’s expression of culpability defeats the court’s ability to deliver “treatment reasonably calculated to bring about an improvement” in the child’s *878condition. It is worth noting that our system of criminal justice for adults has no analogous public policy. Forcing Kentucky’s district court judges and juvenile court caseworkers to ignore the most probative proof of a juvenile’s wrong-doing, simply because he was not informed of his Miranda-rights, defeats that strong policy and makes it nearly impossible to provide the treatment and sanctions needed to serve the “best interests of the child.”

In Kentucky, juvenile adjudications are not considered criminal matters, they are civil cases. They do not result in the permanent stigma that attaches by way of a criminal “conviction” or judgment. See Manns v. Commonwealth, 80 S.W.3d 439, 445 (Ky.2002) (“a juvenile adjudication is not a criminal conviction, but an adjudication of a status.”). KRS 635.040 provides:

No adjudication by a juvenile session of District Court shall be deemed a conviction, nor shall such adjudication operate to impose any of the civil disabilities ordinarily resulting from a criminal conviction, nor shall any child be found guilty or be deemed a criminal by reason of such adjudication.

What, then, is the beneficial deterrent effect to be gained by applying the exclusionary rule in juvenile court cases? It would certainly be no greater than the beneficial deterrence achieved by enforcing the exclusionary rule in adult cases. So, with a greater public policy at work in juvenile cases to favor inclusion of “tainted” but credible evidence, and no offsetting increase in the beneficial deterrent effect of exclusion, the scale tips against the use of the exclusionary rule in juvenile court cases. One scholarly article even suggests the deterrence effect would be even less effective.10 Professor Rosenberg suggests that beneficial deterrence of the exclusionary rule may diminish in juvenile cases because police officers, recognizing the heightened importance of arresting a juvenile for criminal conduct, may proceed with a warrantless or otherwise doubtful search, in order to “protect a youngster,” trusting that parents or court officials can still find a way to render appropriate corrective measures. Rosenberg also suggests that the juvenile adjudications have a lesser “cachet” for police than adult convictions. As a result they may be less concerned about upholding the validity of a juvenile adjudication, therefore less likely to be deterred by the threat of evidence suppression. The fact that children in juvenile court receive milder “punishment” than adult offenders leads some police officers to be indifferent about winning a “conviction” and consequently, less apt to be careful in perfecting their collection of evidence.

For me, the balancing test weighs heavily in opposition to applying the exclusionary rule in juvenile court cases, except as noted in the opening section of this opinion. My opinion is informed not only by my review of the applicable opinions. of other courts, but also by my experience as district court judge presiding over countless juvenile court adjudications between 1979 to 1984. I am aware that much has changed since then concerning the law and the culture in which children learn the habits that will either make them trustworthy, responsible and productive adults or will make them criminals; however, I do not believe that basic human nature has changed. I realize that limiting the exclusionary rule as I propose may result in many children crying “foul” and saying “it’s not fair”11 when wrongful invasions of their privacy or their un-Mirandized statements are used by the juvenile judge to apply corrective treatment. But with maturity, they will recognize the greater les*879son learned was in becoming responsible for their own conduct. On the other hand, when the exclusionary rule is applied, and the child sees his own admissions of culpability, or the stolen goods found in his car, being swept under the rug as if they never existed, a different lesson is learned — the lesson that they can get away with a crime or that crime does pay off in the end. I would urge the Court to adopt the policy that teaches the former lesson, and avoids the latter lesson.

V. CONCLUSION

In “public offender actions” adjudicated in the juvenile division of the district court, probative evidence should be excluded by the exclusionary rule only where it “serves to deter deliberate, reckless, or grossly negligent” police conduct12 and, in the case of Fifth Amendment violations, only where the circumstances indicate the statement was actually involuntary given or was produced under circumstances that cast doubt upon its reliability. Of the few states that have explicitly addressed the issue as I have framed it, I have found none that limit the use of the exclusionary rule as I suggest. But the same was true of every “landmark” decision when it was made. After all, the purpose of a landmark is to show others the way.

Compelling the use of the exclusionary rule in juvenile court cases like the one at hand sacrifices important policy objectives designed to improve the condition of troubled youths for the dubious expectation that it will improve the conduct of police officers. For the reasons stated above, I dissent.

CUNNINGHAM and SCOTT, JJ., join.

. Attribution for the general information used in this opinion is given to two scholarly articles: Irene Merker Rosenberg, A Door Left Open: Applicability of the Fourth Amendment Exclusionary Rule to Juvenile Court Delinquency Hearings, 24 Am. J.Crim. L. 29 (1996), and to a lesser extent, Bryan Stoddard, New Jersey v, T.L.O.: School Searches and the Applicability of the Exclusionary Ride in Juvenile Delinquency and Criminal Proceedings, 2011 B.Y.U. Educ. & L.J. 667 (2011).

. As used in Kentucky’s Unified Juvenile Code, a "[pjublic offense action” is "an action, excluding contempt, brought in the interest of a child who is accused of committing an offense under KRS Chapter 527 or a pub-lie offense which, if committed by an adult, would be a crime” excluding actions alleging that a child of sixteen years or older has committed a motor vehicle offense. KRS 600.020(48).

. Herring v. United States, 555 U.S. 135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009).

. In Welch v. Commonwealth, 149 S.W.3d 407, 411-12 (Ky.2004), this Court ordered the suppression of a juvenile's confession. Welch, however does not conflict with the view I herein espouse because the juvenile in Welch was being tried as an adult, not as a public offender in juvenile court.

. Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006).

. This case is often referred to as “In re Gault." Westlaw designates the style of the case as "Application of Gault" and I adopt that convention herein.

. Due Process includes the right to fair notice of the charges, an opportunity to be heard, a right to legal counsel, the right to confront witnesses, and in juvenile adjudications, the "beyond reasonable doubt standard” of proof. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

. Irene Merker Rosenberg, supra note 1.

. Irene Merker Rosenberg, supra note 1.

. Hening, 555 U.S. at 144, 129 S.Ct. 695