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January 21, 2020 Juvenile Justice

When Parents Are Not Enough: The Case for Counsel in Juvenile Interrogations

Laura Cohen

It is every parent’s nightmare. A call from the police, politely yet tersely stating that a child is in custody and “suggesting” that the parent come down to the stationhouse. Questions, disbelief, and confusion flood the parent’s mind as he or she rushes to the precinct. The sight of the child seated at a table, guarded by police officers and, perhaps, in handcuffs, unleashes a torrent of emotions. Love, anger, shame, and fear trigger primal parenting instincts: the parent wants and needs to protect the child and, at the same time, teach the child to tell the truth, take responsibility for his or her mistakes, and respect authority.

In almost every other situation, these goals are not mutually exclusive. In the interrogation room, however, they often are fundamentally at odds. Children and adolescents are far more vulnerable than adults to standard police interrogation techniques, less able to understand and knowingly waive their legal rights, and more than twice as likely to make false confessions. For these reasons, legal academics, juvenile defenders, and other policy advocates are beginning to make the case for consultation with counsel before any police questioning of youth, as well as the presence of counsel during such interrogations.

Developmental immaturity renders children and teens uniquely vulnerable in the interrogation room. According to renowned psychologist Laurence Steinberg, the hallmarks of psychosocial maturity include temperance, or impulse control; perspective, or the ability to evaluate decisions from both a short- and long-term point of view; and responsibility, or the ability to resist the influence of others and make independent decisions. (Laurence Steinberg et al., “Psychosocial Maturity and Desistance from Crime in a Sample of Serious Juvenile Offenders,” Juv. Just. Bull. (U.S. Dep’t of Justice, Office of Juvenile Justice & Delinquency Prevention), Mar. 2015.) Mature adults are able to weigh the potential consequences of their actions, exercise independent judgment, and make autonomous decisions. Adolescence, on the other hand, is defined by impulsivity, differential assessment of risk, lack of future orientation, and susceptibility to outside influences, rendering youth less adept decision makers than adults. And, because psychosocial development continues through the mid- to late-20s, even older teens process information and weigh the potential risks and benefits of their decisions differently from the way an adult would when faced with an identical choice.

Immaturity profoundly affects young people’s understanding and exercise of their legal rights. They are far less likely than adults, for example, to comprehend even the individual words of standard Miranda warnings, which generally require at least an eighth grade reading level, let alone the negative consequences of waiver. The comprehension gap is even wider among system-involved youth, who disproportionally read several years below their chronological grade level, have learning or intellectual disabilities, or have experienced trauma or mental illness. Children in police custody also are subjected to interrogation-related stress, which further undermines understanding. The leading study in this area concluded that only one-fifth of the adolescent participants exhibited an adequate understanding of their rights, and children under the age of 15 demonstrated even greater difficulties in comprehension. (Thomas Grisso, “Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis,” 68 Cal. L. Rev. 1134, 1143–47 (1980).)

Making matters worse, young people have neither the knowledge, nor the experience, nor the future orientation necessary to calculate or comprehend the risks of submitting to police questioning. Their decision to speak with the police often arises out of a naive and unrealistic assumption that, if they do so, the interrogation will end and they will be allowed to go home.

Many jurisdictions have statutes or judge-created rules compelling the presence of a parent during interrogations of minors. In order to serve as a true buffer or procedural safeguard before and during a custodial interrogation, however, a parent must have an informed understanding of the law and the potential harms associated with answering questions, a desire to protect the child from systemic abuses, and no conflicts of interest. But parents of children in police custody often are themselves frightened, intimidated, or unversed in police interrogation tactics and their children’s legal rights. Their interests do not necessarily align with those of their children. Like their children, they may lack the intellectual ability or education necessary to weigh the risks and benefits of submitting to interrogation. Interrogators also are professionally trained to marginalize parents by placing them at a distance from their children, instructing them not to speak, or conveying that they should remain passive. And, even when parents desperately want to act in their child’s best interests and believe they are doing so, the fundamental precepts of good parenting—demanding that children tell the truth and accept responsibility for wrongdoing—can and often do contravene effective legal decision-making. Regardless of whether a parent is present, then, children’s waivers of the privilege against self-incrimination are rarely knowing or voluntary.

Unknowing waivers of legal rights and the inability to withstand police questioning, in turn, breed false confessions. Numerous studies have demonstrated that widely accepted interrogation tactics can and often do elicit false or coerced confessions from children. According to the National Registry of Exonerations, 38 percent of exonerations for crimes alleged to have been committed by youth involved false confessions, compared to just 11 percent for those allegedly committed by adults. Robust protections, including a right to counsel prior to and during any interrogation, thus are essential to prevent both involuntary waivers and wrongful adjudications and convictions of youth.

Such particularized protections are not without precedent. As the United States Supreme Court observed in J.D.B. v. North Carolina, “The law has historically reflected the same assumption that children characteristically lack the capacity [to age 21] to exercise mature judgment and possess only an incomplete ability to understand the world around them.” (564 U.S. 261, 273 (2011).) Much of this attention has focused on the unequal power dynamic that exists between youth and the police. As early as 1948, the Court emphasized that adolescence left 15-year-old John Haley “an easy victim of the law” when he was held incommunicado for many hours, despite his mother’s and attorney’s efforts to intervene. (Haley v. Ohio, 332 U.S. 596, 599–600 (1948).) In suppressing his confession, the Court emphasized that it could not “believe that a lad of tender years is a match for the police” and that a child “needs counsel and support if he is not to become the victim first of fear, then of panic.” (Id.) Nearly two decades later, the Court made a similar observation in In re Gault: “With respect to juveniles, both common observation and expert opinion emphasize that the ‘distrust of confessions made in certain situations’ . . . is imperative in the case of children from an early age through adolescence.” (387 U.S. 1, 48 (1967).)

To countermand these profound dangers, the American Academy of Child and Adolescent Psychiatry has called for “meaningful attorney consultation” as a condition precedent to any waiver of Miranda rights by youth. Legal scholars, too, have argued that the most effective means to ensuring knowing and intelligent waivers of counsel would be a per se rule prohibiting children from waiving their Miranda rights without first consulting an attorney.

To that end, in 2018 California enacted Senate Bill 395, which requires that any child age 15 or younger consult with counsel in person or by video prior to waiving his or her legal rights and further prohibits waiver of that consultation. The preamble to that legislation recognizes the relevant developmental science and the high incidence of juvenile false confessions. As the New Jersey Supreme Court has observed, “Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts.” (State v. Presha, 748 A.2d 1108, 1116–17 (N.J. 2000).) It is imperative that we take collective heed and ensure that no child is left to navigate the roiling waters of interrogation without legal advice. It is only with such protections that false confessions by youth might be avoided and fidelity to the Constitution preserved.

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Laura Cohen

Laura Cohen is a distinguished clinical professor of law, the Justice Virginia Long Scholar, and the director of the Criminal and Youth Justice Clinic at Rutgers Law School.