This column’s initial outing promised a focus on “true-to-life” situations at the intersection of criminal law and mental health. One instance in which well-intended notions founder upon proven realities of criminal practice involves the role of the “interested adult” in juvenile interrogations. Let’s examine how defense counsel might consult with a reputable forensic psychologist when an example of alleged client protection actually winds up making a bad situation worse.
Counsel: I hope I didn’t catch you at a bad time. Do you have a few minutes?
Doctor: 480 a day, actually. We’re selling them in bundles of six.
Counsel: Well, then, let me get right to the point. How do you feel about working with kids?
Doctor: How many minutes do you have?
Counsel: I think there are five left in my first bundle, so fire away.
Doctor: The stories are always sad, the kids always arrive late and unfed because transportation is a burden for families, and I have to hang around the courthouse all afternoon waiting to testify.
Counsel: I appreciate your honesty as much as your concision.
Doctor: While we’re being honest, let me add one more thing: I love working with kids. Talk about keeping it real . . . and sometimes you can really make a difference.
Counsel: Well, maybe you can make a difference in my latest case. It’s a juvenile interrogation matter, involving parents who . . .
Doctor: Wait, let me guess. The kid isn’t talking, so the parents say, “you tell the officer everything you know, and then later you and I are going to have a little discussion of our own.”
Counsel: Exactly . . . so is this your way of telling me you’ve already been retained by the state in this case?
Doctor: No. But whenever an attorney mentions “parents,” it’s almost always the same deal.
Counsel: That’s actually true. It certainly never helps me in my job because whether the parents are essentially working hand in glove with the police or not, the judge tends to rule that “procedures were followed” and the statement comes in.
Doctor: And the same with “false confession” as well as Miranda cases, right?
Counsel: Yes. I get told that the presence of the parents reduces the likelihood of inaccurate statements, and I also get reminded that this is why the “interested adult” statute was promulgated in the first place.
Doctor: That second part is true, at least. Every jurisdiction that drags the parents into these situations always insists at the outset that it’s for the good of the kids.
Counsel: It sounds like you’ve investigated this stuff before.
Doctor: Yes. It comes up a lot in Miranda waiver and false confession cases, and there’s quite a bit of literature out there on this topic.
Counsel: Law review articles?
Doctor: Yes, but social science research, too. You and I are far from the first ones to become interested in this issue.
Counsel: How long has this research been going on?
Doctor: For at least four decades. The article that kicked off a lot of discussion was by Grisso and Ring back in 1979, entitled “Parents’ Attitudes Towards Juveniles’ Rights in Interrogation.” I’ve actually got a copy right here . . . hang on. Okay, it asks: “Does requiring the presence of parents at pretrial interrogations of juveniles ensure adequate protection of juveniles’ rights to silence and to retain legal counsel?”
Counsel: I think we all know the answer to that.
Doctor: Yes, but 40 years ago most people didn’t. The authors wrote that “the results of this study are in marked contrast to the assumption, stated by many courts, that parents can provide adequate advice and interrogation for juveniles in interrogation.”
Counsel: Sure, but that sounds like it’s mostly about whether the parents can give good advice. What about situations where mom and dad are sophisticated enough to “get” Miranda, but they have their own agenda when it comes to instructing their kids?
Doctor: That’s in there, too, with references to a “generalized negative attitude toward juveniles’ self-determination in settings usually controlled by authority,” and to a “belief that juveniles should cooperate to the extent of self-incrimination.” The authors also observed that “even those who recommend silence would expect their child to answer the questions of the police eventually.”
Counsel: Great stuff, but 1979 was a long time ago, right? Even the kids in that study must be in, what, their mid-50s by now? What if I needed to bring something a bit more up-do-date into court?
Doctor: I’ve got an article here, written by Oberlander and Goldstein in 1999, on “Contemporary Approaches to Evaluating Miranda Comprehension.”
Counsel: Okay, you’re getting warmer.
Doctor: These authors claim that “research has shown that the interested adult requirement does not result in a greater number of adolescent refusals to waive Miranda,” that “parents often believe they should pressure their children to cooperate,” and that “while absolute silence was common during the conversations . . . when advice was given, it favored waiving rights by a ratio of three to one.”
Counsel: I love it. How about something from this century?
Doctor: There was a review article in Criminal Justice in Winter 2015, on “Juveniles and Miranda.”
Counsel: Now you’re talking.
Doctor: It cites all manner of modern studies and maintains that “a review of these waivers reveals that they strongly emphasize parental consent and cooperation with interrogation, as opposed to advocacy for youths in custody,” that “the involvement of parents and guardians does not support a primary objective of protecting juveniles,” and that “although the original purpose was to provide broader representation than that found with general warnings, the reality is far different.”
Counsel: This is really helpful—particularly in cases where false confession is the issue. By the way, there’s a special twist to the case I want send you.
Doctor: What’s that?
Counsel: In this one, after the Miranda rights are read, it’s the mother who says, “okay, he’ll speak with you” and then signs the waiver form herself.
Doctor: That’s binding in this state, right?
Counsel: I suppose, but even though permission has technically been granted, I’m still itching to speak to the court—or, even better, to have you speak to the court—about what this does and doesn’t tell us about the kid’s grasp of what was really going on.
Doctor: In six minutes?
Counsel: This is a privately funded matter. I’ll see if I can get you 12 minutes.
Our readers were also promised a “balanced approach,” so here goes: Prosecutors can’t do much to cure the unhelpful direction taken by the social science research and scholarly legal commentary in this area, but they can certainly construct a line of questioning—as always—that encourages expert witnesses on either side of the aisle to tie their conclusions to the facts of the actual matter at hand. Is it ever the case, for example, that parents urge silence, but the child elects to speak anyway?
Please feel encouraged to contact Dr. Drogin at email@example.com with any questions about the role of “interested adults” in juvenile interrogation matters, or with any suggestions for future topics.