Lisa M. Krzewinski*

Abstract:  Juveniles’ susceptibility to suggestion, coupled with their inherent naiveties and immature thought processes, raise considerable doubt as to their ability to understand and exercise their Fifth Amendment right against self-incrimination. Furthermore, they are extremely vulnerable to overimplicating themselves in crimes or, even more unfortunate for all involved, confessing to crimes they did not even commit. To protect the rights and interests of juveniles, states must enact several safeguards. This Note suggests, for example, that courts which currently use a totality of the circumstances test to determine whether a juvenile confession is voluntary, and thus not a violation of the Fifth Amendment, should abandon it in favor of a less-flexible per se rule. Additionally, states need to simplify the Miranda warning into language more conducive to juveniles’ comprehension. To increase the reliability of confessions and prevent false confessions altogether, interrogators need to cease using the same interrogation tactics, such as leading questions and the presentation of false evidence, on juveniles as they do on adults.


The juvenile court system is based on the premise that a juvenile is different physically, mentally, and intellectually from an adult.1 In the 1966 case In re Gault, the bedrock upon which modern juvenile law is based, the United States Supreme Court commented:

[i]f counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it [*PG356]was not the product of ignorance of rights or of adolescent fantasy, fright or despair.2

This statement implicitly recognizes two separate but related problems inherent in the interrogation of juveniles.3 First is the question of whether a juvenile has the capacity to understand his Fifth Amendment right against self-incrimination, which is “explained” to him through the standard Miranda warning.4 Furthermore, assuming the juvenile understands this right, will he successfully invoke it when he is alone in a small interrogation room, facing the accusatory questions of law enforcement officers?5

Second, even if a juvenile makes a statement “voluntarily, knowingly and intelligently,”6 the reliability of his statements may be questionable.7 For a variety of reasons, including an incapacity for adult reasoning, susceptibility to suggestion, and a value system misunderstood by adults, a juvenile may give a confession that can be anything from partly untrue to wholly false.8 This, of course, can have severe repercussions for the juvenile because a confession is an extremely powerful piece of evidence for the judge or jury to take into consideration when deciding whether to convict.9

When a juvenile is arrested, there may be conflicting public policies at work.10 Court officials must ensure the protection of a juvenile’s constitutional rights, as well as recognize his inherent naiveté and immaturity regarding these rights.11 At the same time, juveniles do sometimes commit heinous and horrible crimes.12 In such in[*PG357]stances, police and prosecutors must be allowed to hold the juvenile accountable for his acts in order to protect the community.13

This Note recognizes the tension between these goals and suggests ways to strike a better balance between them. Part I of this Note discusses ways in which juvenile statements may not be wholly truthful, as well as reasons behind the unreliability. Part II describes the debate about whether a juvenile can knowingly, intelligently, and voluntarily waive his Fifth Amendment right. Finally, using the context of In re B.M.B., Part III suggests various safeguards a juvenile court must implement to address a juvenile’s ability to waive his constitutional rights. The author suggests the abandonment of the totality of the circumstances test used by the majority of the states to determine whether a juvenile properly waived his rights and, instead, advocates the adoption of a per se rule of statement admissibility. Part III also explores ways to increase the reliability of a juvenile’s statement. For example, the author suggests the need for a police interview technique more in line with the psychological development of juveniles, as well as a waiver form written in language comprehensible to juveniles.

I.  The Unreliability of Juvenile Statements

Everyone involved in the juvenile justice system is familiar with the aftermath of the Ryan Harris tragedy.14 In 1998, two young boys, only seven and eight years of age, were charged with murdering an eleven-year-old girl, Ryan.15 The two boys confessed to Chicago Detective James Cassidy that they hit Ryan in the head with a brick in order to steal her bicycle.16 The country was horrified that such young children could commit such a heinous crime.17 Months later, however, the charges against the boys were dropped after DNA tests of the semen found on Ryan’s clothing linked the crime to an adult male.18

This was not the first time that Detective Cassidy obtained an untruthful confession from young children.19 Four years earlier, Detective Cassidy elicited a similar juvenile confession from a ten-year-old [*PG358]Chicago boy, A.M., who was eventually convicted of the murder of his eighty-four-year-old neighbor.20 Police charged the boy with the murder almost entirely based on his confession—the juvenile’s fingerprints were never found inside the victim’s home, despite the fact that it appeared to be ransacked; a bloody palm print and shoe print did not match to the juvenile; and the 173-pound victim was found bound with a telephone cord around her arms, neck, and hand, and was dragged throughout the house.21 At the time of the murder, the juvenile was an eighty-eight-pound ten year old.22

Almost a year after the murder, A.M.’s mother allowed him to go with Cassidy and another detective to police headquarters, believing that they wanted her son to look at photographs of possible suspects.23 She was later summoned to the police station and told her son had confessed to the murder.24 Upon seeing his mother, the first thing the juvenile said was, “I told them that I did it, but I didn’t do it.”25 He indicated to her that he had confessed so that he could leave the police station in time to attend a birthday party.26

In January 2000, a sixteen-year-old A.M. appealed his conviction, contending that he had been coerced into giving a false confession.27 He testified in federal court that Detective Cassidy had yelled and cursed at him, screaming out at various points, “I know you did it. I know you killed her.”28 He testified that Cassidy had patted him on the knee, saying, “God forgives you and we forgive you.”29 Most disturbingly, he testified that Cassidy had promised him that he would be released to attend his younger brother’s birthday party if he would just say what happened.30 A.M. said that he could not handle the pressure and eventually “just broke down” and confessed that he had committed the murder.31

The similarities between the two stories are striking: all three of the children, A.M. and the two young boys in the Harris case, are Af[*PG359]rican-American boys whose parents were initially told by police that their children were witnesses, not suspects.32 Consequently, all three spontaneously confessed without the presence of parents or a lawyer.33 All three immediately recanted once allowed to talk with their parents.34

These similarities also indicate the problems inherent in police interrogation of juveniles.35 Labeling a confession “coerced” conjures images of police brutality and violence or endless hours of interrogation without access to food or sleep.36 But, as these cases attest, coercive forces that lead to inaccurate or false juvenile confessions can be much more subtle, and they are often the result of inappropriate police tactics playing upon the immature thought processes and naiveties of juveniles.37

According to child witness expert Richard Leo, “[a] false confession is the natural consequence of police toughness on young adults.”38 Police tactics, including the use of leading questions and the presentation of false evidence, can be extremely persuasive to children, who are naturally susceptible to suggestion.39 Psychologist Stephen Ceci has conducted several studies that have shown that while the methods police use to interrogate suspects will elicit false confessions from both adults and children, children are particularly susceptible to manipulation and persuasion.40 And, Mark Chaffin, a child development specialist, recently testified that

[e]ven in situations less stressful and coercive than a stationhouse interrogation . . . substantial numbers of children will [*PG360]agree to things that are factually inaccurate . . . . If what one wants is a confession, [the type of interview technique currently used] will get it. It will unfortunately . . . get it from the guilty and get it from the innocent.41

Another danger in police interrogations is that juveniles will readily agree to an officer’s words without understanding the significant implications of these words.42 For example, one attorney described his experiences representing Latasha, a thirteen-year-old juvenile who was charged with first-degree murder.43 The police filled her confession with “planning words” and words suggesting “agreement” between Latasha and her codefendant.44 According to Latasha’s attorney, “[t]his common police practice is far too sophisticated for a kid to pick up as he or she readily initials each page of the confession, skipping over words that have no specific meaning to them.”45 Latasha, a thirteen-year-old charged with murder and interrogated without an attorney present, could neither convey nor understand the subtle distinction between what the police suggested happened—there was an “agreement” with her boyfriend to commit murder—and the “acquiescence” to an older boyfriend that her story suggested.46 This subtle distinction probably had a large impact on Latasha’s disposition, however, because mere acquiescence would have made her less culpable under criminal law.47 Instead, Latasha’s statement made it difficult for her attorneys to convince a jury that she did not have the requisite intent to be convicted on a charge of first-degree intentional homicide.48

Additionally, false confessions and admissions to inaccurate statements are often a juvenile’s reaction to a perceived threat.49 Children will take the blame for crimes they did not commit just to make the interrogation cease.50 According to child psychologist Marty Beyer, this is especially true for children of color (as A.M. and the boys in the Harris case were), as well as for victims of physical and [*PG361]sexual abuse.51 For example, several of the youths in Dr. Beyer’s study reported that a fear of police made them feel that they had to confess; she writes, “[h]aving been powerless when adults abused them in the past, these young people probably could not do anything but comply with police.”52 Furthermore, some adolescents, especially younger juveniles, may be excessively compliant.53 These juveniles may feel compelled to give answers adults want.54 This propensity may be especially strong when the adults are authority figures such as police officers.55

Finally, inaccurate statements may be the result of comparatively “immature” juvenile thought processes.56 Experts suggest that adolescents may see different options than an adult would when faced with a decision.57 Juveniles may also place a different value on their options than adults, such as emphasizing peer approval as a factor in the decision.58 Furthermore, juveniles differ in their identification of the possible consequences that may follow from the options they are considering.59 For example, younger adolescents may not be able to think “strategically” when making statements, especially in such emotionally charged circumstances as a police interrogation.60

Using Latasha to demonstrate these characteristics of a juvenile may be particularly helpful. When Latasha was initially interrogated without an attorney present, she made several confessions of various actions to which her co-defendant, an older boyfriend, also admitted.61 At one point, she said that she had found the cord used to strangle the victim from a room in her own house.62 Meanwhile, her seventeen-year-old boyfriend, who actually committed the murder, had already confessed that he had obtained the cord from a different [*PG362]room.63 After her lawyer “spent months in patient and often difficult discussions with Latasha in order to work through her teenage fears and misperceptions of reality,” he learned that this particular admission of Latasha’s was false.64

It seems that Latasha was simply protecting her boyfriend by assuming some of the responsibility of the crime, not an unusual occurrence in juvenile confessions.65 Some experts believe that instead of considering what an adult may view as the worst possible outcome—getting punished himself—a juvenile’s sense of morality may be overshadowed by a sense of loyalty to others.66 In one study, Dr. Beyer discusses one adolescent who thought falsely confessing and taking the blame for an adult friend was the “right” thing to do.67 This same friend assured him that because of his age and his lack of a delinquent record, he would get a mild juvenile sanction.68 Along the same lines, there is also a strong belief among juveniles that informing on others, such as a boyfriend or girlfriend or fellow gang member, is morally wrong, a concept that Dr. Beyer says many adults do not understand.69

Juveniles’ susceptibility to suggestion, coupled with their immature thought processes, has serious consequences when they are interrogated by individuals who do not recognize these limitations.70 Whether through leading and suggestive questions or because of a juvenile’s innate fears, if he is compelled to give answers he is uncomfortable giving, his constitutional right against self-incrimination may be violated.71 This is true regardless of whether the interrogation is objectively threatening.72 Furthermore, some crimes, such as the first-degree murder charge on which Latasha was convicted, require the establishment of premeditation and intent.73 However, “[d]etermin-ing intent in juveniles requires understanding adolescent development”74 in general and where a particular child is in his development. [*PG363]Investigators must realize that juveniles often follow others out of loyalty or are easily coerced into situations that they may not have anticipated or planned.75 Again, however, through the use of subtle coercion, such as leading questions and using “significant” words that kids may not understand, police officers may suggest or create the requisite intent for a serious criminal charge.76 In an era in which adolescents are increasingly tried as adults, juveniles may be, literally, signing their lives away.77 There is also the important consideration, of course, that “[s]ociety is no safer when a seven- or eight- year-old boy . . . is convicted of a crime the child didn’t commit because the police bullied a confession out of him” and the actual perpetrator remains free.78

II.  Misunderstanding Miranda

In Miranda v. Arizona, the United States Supreme Court determined that “[p]rior to any questioning, [a] person must be warned that he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”79 The Court’s decision was based on its belief that automatic procedures were necessary to ensure that an individual was aware of and understood his Fifth and Sixth Amendment rights.80

The United States Supreme Court has never specifically held that Miranda warnings apply to juveniles.81 However, one year after Miranda, the Supreme Court decided In re Gault, a landmark case in [*PG364]juvenile law.82 The Court’s lengthy discussion made clear that a juvenile has the right against self-incrimination and that “[t]he language of the Fifth Amendment . . . is unequivocal and without exception.”83 In a limited holding,84 the Court went on to decide that a juvenile who may be committed to a state institution, as well as his parents, must be advised of his right to representation by counsel.85 Furthermore, “an admission by the juvenile may [not] be used against him in the absence of clear and unequivocal evidence that the admission was made with knowledge that he was not obliged to speak and would not be penalized for remaining silent.”86

It is important to understand the basis upon which the Court came to this conclusion. The Court was deeply concerned that even in the then-rehabilitative and paternalistic atmosphere of the juvenile court, the reality was that a juvenile may be “committed to an institution where he may be restrained of liberty for years.”87 It emphasized that the Fifth Amendment protects against a defendant’s incriminating statement because of “the exposure which it invites” and the deprivation of liberties it may entail.88

In the thirty-five years since In re Gault, this discussion has become increasingly relevant.89 For example, legislatures in recent years have passed laws in all fifty states allowing juveniles to be tried in adult courts and sent to adult prisons.90 Furthermore, according to Amnesty International:

[*PG365]During the past 20 years, in response to public concern about the extent and nature of crimes committed by young people, [state] governments have significantly expanded the role of the general criminal justice system with respect to children and generally increased the severity of sanctions that courts may impose on children.91

The report goes on to say that, according to the most recent data available, “about 200,000 children a year are prosecuted in general criminal courts; more than 11,000 children are in prisons and other long-term adult correctional facilities; and, more than 2000 children are housed in the general population of adult prisons.”92

Simply put, juveniles have increasingly more liberty to lose when they are arrested and interrogated.93 Thus, state and federal courts have consistently warned that special care must be taken to ensure that a juvenile understands that he has a constitutional right against self-incrimination.94 Furthermore, when a juvenile makes incriminating statements, courts have consistently looked to whether the waiver of that right was made knowingly, intelligently, and voluntarily to ensure proper due process.95

[*PG366] Courts and legislatures have generally taken one of two approaches to determine whether a Fifth Amendment right was properly waived.96 The majority of states apply a totality of the circumstances test.97 This is modeled after the one used for adults to determine whether they properly waived their Fifth Amendment right.98 The Supreme Court adopted this approach in Fare v. Michael C., where it said that the “totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved.”99 Under the totality approach, courts have traditionally examined factors such as the suspect’s age, education, intelligence, whether he was advised of his constitutional rights, and the length and nature of detention.100 The factors that a particular court applies, as well as the weight judges assign to these factors, are usually matters of judicial discretion and vary among courts.101

Other states, however, have rejected the totality test and, instead, have adopted per se exclusionary rules.102 These rules are largely based on the Supreme Court’s discussion in Gallegos v. Colorado that adult advice is valuable in ensuring the voluntariness of a juvenile’s waiver and the Court’s recognition that immaturity may render a youth helpless to assert his rights.103 In states using a per se rule, a statement is rendered automatically inadmissible if it does not follow statutory guidelines, such as having a parent or another interested adult present when the statement is made.104 The per se rule is based on a public policy determination that juveniles do not have the capacity to understand or waive their right against incrimination and so they need an adult’s help to make this decision.105

[*PG367] The fact that several states have explicitly made this determination and adopted a per se exclusionary rule begs the question: Are juveniles capable of knowingly, intelligently, and voluntarily waiving their constitutional rights?106 Empirical studies emphatically suggest that the answer is no.107 For example, Dr. Thomas Grisso’s statistical evidence shows that a majority of delinquent youths are learning disabled, which compounds their problem of comprehension.108 Dr. Grisso’s studies also conclude, in part, that juveniles demonstrate less understanding of the wording in the Miranda warnings than do adults; that juveniles are more likely than adults to misunderstand the function of legal counsel, thus not realizing the benefits and protection that lawyers can give them; and, that many juveniles do not understand that they truly have a “right” to remain silent.109 He further notes that juveniles fifteen and younger are especially unable to comprehend the concepts involved in a Miranda warning.110

Dr. Grisso’s findings have been replicated in subsequent studies.111 For example, in Dr. Beyer’s study, ten of seventeen juveniles could not demonstrate an adequate understanding of the words of the Miranda warning.112 She describes how one fourteen year old explained “You have the right to remain silent” as “Don’t make noise.”113 He explained the phrasing “Anything you say can be used against you” as meaning “You better talk to the police.”114 Furthermore, there is evidence that juveniles may misperceive the function of counsel.115 One study found that one-third of the juveniles believed that it was important to be truthful because a lawyer could report the defendant’s guilt to the court.116

Finally, research suggests that young adolescents may not see a “right” as an entitlement but, instead, as something that can be taken away by authorities.117 These youths, then, may not realize that a [*PG368]“right” belongs to them and is something that they can assert.118 This becomes problematic during a juvenile interrogation because “[t]he accused who does not know his rights and therefore does not make a request may be the person who most needs counsel.”119

The Supreme Court, writing about criminal defendant Miranda himself, opined, “[t]he mere fact that he signed a statement which contained a typed-in clause stating that he had ‘full knowledge’ of his ‘legal rights’ does not approach the knowing and intelligent waiver required to relinquish constitutional rights.”120 In an akin situation, if a juvenile does not understand what his right to silence means or does not understand how a lawyer can help him or does not realize that his statements will be used against him—regardless of whether he recants upon being released or seeing his parents—it seems that these rights cannot have been waived intelligently and voluntarily.121

III.  Procedural Protections

Juveniles may not have the capacity to understand what their legal right against self-incrimination entails. Thus, if juveniles do not know what they possess in the first instance, they cannot properly waive this right, lending to a violation of the Fifth Amendment.122 Furthermore, because juveniles have immature thought processes that make them susceptible to suggestion and prevent them from realizing the long-term consequences of their statements, they are extremely vulnerable to overimplicating themselves or even making wholly false confessions.123

To protect the rights and interests of juveniles, states must enact several safeguards. First, courts which currently use a totality of circumstances test to determine whether the confession of a juvenile sixteen or younger is voluntary should abandon it in favor of a per se rule of admissibility.124 Such a per se rule would exclude the admissibility of any statements made by juveniles sixteen and under when an interested adult such as a parent, guardian, or lawyer is not present.125 [*PG369]Additionally, the Miranda warning must be explained and understood by both the juvenile and adult.126 If such an adult was present when an incriminating statement was made, the burden is on the defense to show that the statement was not voluntary. For instance, the defense could present evidence that a juvenile’s parent compelled him to speak to an officer or that the interested adult did not comprehend the concepts in the Miranda warnings well enough to render advice.127

For juveniles older than sixteen, the per se rule should not apply.128 Instead, there should be a rebuttable presumption based on the preponderance of the evidence standard that the statement was not given voluntarily. Prosecutors can overcome this presumption by showing that an interested adult was present and that the adult had a meaningful consultation with the juvenile.129 Also, showing that a juvenile’s parent or guardian was aware of his arrest and that the juvenile was given the opportunity to have such a person present would also strongly favor overcoming the presumption.130 On the contrary, a prosecutor could not overcome this burden if there is evidence that the police deliberately excluded a juvenile’s parent or legal guardian from the interrogation.131

Finally, states need to enact procedural safeguards to ensure that constitutional rights are waived properly and that statements are reliable. For instance, the Miranda warning needs to be simplified into language more appropriate for juveniles and incorporated into a juvenile waiver form.132 Additionally, interrogators need to cease using the same tactics on children as they do on adults, such as the use of leading questions and presentation of false evidence.133

[*PG370]A.  Abandon the Totality Test

1.  The Case of B.M.B.

The totality test currently used by states to determine if a waiver was proper is problematic for several reasons.134 First, as several commentators have pointed out, it only serves to protect a juvenile retrospectively, after he may have improperly waived his rights.135 In effect, the totality test serves as a remedy rather than a safeguard.136 In Miranda, however, the Supreme Court’s entire premise is that an individual’s Fifth Amendment right is “fundamental to our system of constitutional rule” and, therefore, great care must be taken to ensure the State does not infringe upon this right.137 Because a per se rule acts prospectively to prevent such an infringement in the first place, it encompasses a value system more in line with constitutional intent.138

Another problem with the totality test is that the determination of whether a juvenile’s rights were disregarded is entirely based on the discretion of judges, which leads to inconsistency from case to case.139 Police interrogators are then left with only rough guidelines, which may be too flexible to be useful and which may allow police to take advantage of a youth’s immaturity.140 Another way in which the totality test falters concerns the factors that are used to analyze whether a confession is voluntary.141 For instance, many courts look to a juve[*PG371]nile’s prior arrest experience, theorizing that if he has been previously exposed to an arrest and a Miranda warning, he has a better understanding of what rights are implicated the next time.142 However, research has shown that a juvenile’s repeated exposure to a Miranda warning does not necessarily make it more understandable.143

Additionally, courts often analyze whether a juvenile was advised of his rights.144 However, just because a Miranda warning is given and a juvenile indicates that he understands his rights does not mean that this is necessarily the case.145 Again, even if a juvenile realizes that “These statements may be used against you,” he may not understand the long-term consequences of his statements or may not understand that a right is something that belongs to him and cannot be taken away by the law officer.146 As Dr. Grisso writes, even when juveniles are interrogated “under optimal conditions . . . [they are] not immune from comprehension inhibitions.”147

Finally, courts will often look to the age of the juvenile.148 However, Dr. Beyer argues that “adolescent development is not a linear progression tied to chronological age.”149 Just as a fifteen-year-old juvenile does not think like a twenty-year-old adult, he may not think in the same way as the fifteen year old with whom he was arrested.150 In addition, many arrested juveniles have suffered from physical or sexual abuse, which can delay adolescent development.151 Thus, many juveniles’ thought processes may be more immature than their chronological age would suggest.152

In re B.M.B., a 1998 decision of the Supreme Court of Kansas153 illustrates the problems inherent in using totality tests to determine whether a statement was voluntarily given. B.M.B. was a ten-year-old boy accused of sexually assaulting a four-year-old neighbor while they [*PG372]and her seven-year-old brother were playing together.154 At one point, while the two boys were burying the four year old in the sand, she got out and ran into the house screaming.155 Although the boys believed it was because she had seen a worm in the sand, when her mother asked her what happened, she said that “a boy” had tried to stick his “finger up [her] butt.”156 Police, believing that the girl had adequately identified B.M.B. as the assailant, attempted to question him.157 An investigator left several phone messages with B.M.B.’s mother, indicating that she should get in touch with the police.158 Finally, under the belief that B.M.B. would soon be leaving to spend the summer with an uncle, the officer removed him from his fourth grade class and took him for questioning—all without trying to contact his mother again.159

Once at the station, the officer had B.M.B. read the Miranda form, “going over each sentence with him,”160 and had B.M.B. initial each sentence, as if to indicate his understanding.161 Although the officer asked B.M.B. if he wanted his mother present, the ten-year-old indicated that he did not.162 The officer began questioning the boy, and, about twenty minutes later, the officer was told B.M.B.’s mother had called.163 However, the officer never told B.M.B. that his mother was on the way to the police station.164 Instead, he concluded the interrogation before B.M.B.’s mother arrived.165 B.M.B. was subsequently adjudicated as a youthful offender for the rape of the four-year-old.166 He appealed the adjudication, contending an erroneous admission of his confession.167

The trial court rejected B.M.B.’s motion to suppress his statements to the police.168 At the time of B.M.B.’s trial, Kansas courts applied a totality test, considering such factors as the age of the minor, [*PG373]the length of the questioning, the youth’s prior experience with the police, his education, and his mental state.169 However, when assessing these factors, the trial judge merely mentioned that B.M.B. was ten years old and admitted that “[she knew] nothing about [B.M.B.]’s maturity,” although she noted that he could read and write.170

The trial court judge never made any mention of B.M.B.’s prior experience with the police, supposedly one of the factors to be applied under this test.171 She emphasized, “I’m more impressed, however, with [B.M.B.]’s comment that he would simply do his homework while waiting for paperwork to be processed, rather than being described as tearful or overwrought. There is no indication at this point that [B.M.B.] had any hesitation with regard to speaking to this Detective.”172 The trial judge allowed all of B.M.B.’s incriminating statements into evidence.173

On appeal, the Supreme Court of Kansas took issue with the trial judge’s assessment of B.M.B.’s mental state, indicating that the fact that B.M.B. wanted to do his homework after the interrogation was of “questionable relevance.”174 The court also implicitly disagreed with the trial judge’s decision to place so much weight on B.M.B.’s apparent calm mental state.175 Furthermore, the opinion said that another “shortcoming in the trial court’s consideration” was its omission of the fact that the detective had deliberately continued and finished his interrogation before B.M.B.’s mother had arrived.176 The Supreme Court of Kansas subsequently held that B.M.B. did not, and, in fact, could not properly waive his constitutional rights, saying “[f]or all intents and purposes, the State and trial court treated B.M.B. as if he were an adult or at least a much older teenager.”177

In re B.M.B. highlights the fundamental problem of inconsistency in the totality test.178 The trial judge and the Supreme Court of Kansas examined the same set of circumstances and supposedly applied them to the same set of factors.179 Despite this fact, some factors, such as [*PG374]B.M.B.’s mental state, were evaluated differently based on subjective assessments of the judges.180 Whether individual factors should be considered at all and the determination of relative weight of the factors differed greatly from the trial judge to the Supreme Court of Kansas.181 If judges who “know” the law come to such dramatically different conclusions based on their discretion, it may be equally, if not more, difficult for the police officer who is conducting an interrogation to make an accurate prospective assessment of whether a juvenile intelligently and voluntarily waived his right against self-incrim-ination.182 Also troubling was the trial judge’s emphasis on the fact that B.M.B. had read the Miranda form and initialed it, indicating that he understood his rights.183 Again, reading about rights is not equivalent to comprehending them.184

2.  Adopting the Per Se Rule

The Supreme Court of Kansas implicitly recognized the problems involved in the totality test, “persuaded by what occurred in the present case.”185 After determining that B.M.B.’s waiver was not proper, the Court went on to set a new standard that no statement or confession from a child under the age of fourteen could be used against him unless he had consulted with a parent, guardian, or attorney, who also must have been advised of the child’s rights.186

The opinion stated:

We cannot ignore the immaturity and inexperience of a child under 14 years of age and the obvious disadvantage such a child has in confronting a custodial police interrogation. In such a case, we conclude that the totality of the circumstances is not sufficient to ensure that the child makes an intelligent and knowing waiver of his rights.187

[*PG375]Furthermore, it stated that requiring the advice of a parent or counselor is “relatively simple” and was “well-established as a safeguard against a juvenile’s improvident judicial acts.”188

Other jurisdictions have recently enacted similar safeguards, whether by statute or judicial decree.189 For example, in March 2000, the Supreme Court of New Jersey said in State v. Presha that “special circumstances exist when a juvenile is under the age of fourteen.”190 It held that, in such instances, an adult’s absence will render a juvenile’s statement inadmissible as a matter of law.191

Similarly, in April 2000, Illinois lawmakers passed a measure requiring anyone younger than age thirteen to have a lawyer before facing police questioning in homicide and sexual assault cases.192 The statute requires that the police, at the very least, allow the juvenile to speak with an attorney over the phone before the police can begin their interrogation.193 The legislation falters, however, in its failure to realize that the presence of a lawyer or other adult serves dual purposes.194 While a telephone call to an attorney, perhaps, can provide a juvenile help in understanding his constitutional rights, the juvenile will still be disadvantaged if an adult is not physically present to act as a buffer against coercion or intimidation.195 The original proposal for the legislation took this into consideration and mandated that statements taken without a lawyer present would be strictly inadmissible.196 [*PG376]It also required a lawyer for any criminal suspect younger than eighteen.197 However, law enforcement groups decried these strict proposals, maintaining that such restrictions would make it difficult for them to perform their jobs.198

As the above examples demonstrate, states that have enacted per se rules are not uniform in their requirements.199 The particular nuances and requirements of a statute are public policy determinations, which seek to balance the protection of a community against the protection of a juvenile’s constitutional rights.200 For example, some states require merely the immediate notification of a minor’s guardian or custodian if a minor is taken into custody so that statements made by juveniles where no notification has been made have been suppressed.201 However, because this standard does not require an interested adult’s presence for support and ongoing consultation, it does not provide adequate protection.202

Other states, such as Colorado and Indiana, have enacted statutes that render inadmissible any statement by a juvenile made during the interrogation outside the presence of an interested adult, such as a parent or attorney.203 This author believes that the latter view is the best way to provide protection for a juvenile. When an interested adult is present, such an adult can provide advice so that the juvenile better understands his rights, as well as protect the juvenile from the “compelling atmosphere” of custodial interrogation.204 Courts have noted that the presence of a parent to act as a “buffer” is especially [*PG377]significant now because there has been an increased focus on the apprehension and prosecution of youth offenders.205

The language used to require the consultation with or presence of an interested adult also varies from state to state.206 However, the requirement that the adult must be interested not only in the juvenile’s general welfare but also his legal welfare seems to be implicitly uniform.207 For instance, Vermont requires that a juvenile be given the opportunity to consult with an adult “who is not only generally interested in the welfare of the juvenile but completely independent from and disassociated with the prosecution.”208 As well, the Supreme Court, in Gallegos v. Colorado, advised that juveniles should receive aid from “someone concerned with securing him . . . rights.”209 It is apparent, then, that a lawyer would fall under the interested adult standard.210 Similarly, per se rules uniformly consider a parent or legal guardian to be an interested adult.211

[*PG378] In addition to the variation in who may be present in a juvenile interrogation, the age at which a per se rule applies varies across jurisdictions.212 For example, Colorado’s statute does not make reference to a specific applicable age, instead referring to “a juvenile.”213 As mentioned already, New Jersey’s per se court mandate only applies to juveniles under the age of fourteen.214 Interestingly, in Massachusetts the judiciary has created a two-tiered standard based on age.215 There, a juvenile under fourteen can only properly waive his Fifth Amendment right if he has an interested adult present during interrogation.216 For juveniles fourteen and over, however, there is a rebuttable presumption that a waiver of rights is improper.217 If such a juvenile demonstrates “a high degree of intelligence, experience, knowledge, or sophistication,” even if there is no interested adult present during the interrogation, the waiver is valid and any incriminating statements may be entered into evidence.218

Creating an age limit within a per se rule is a difficult determination because, as already noted, psychological development and conceptual understanding of rights do not necessarily correlate to chronological age.219 Although studies show that younger juveniles are the most vulnerable to confusion about their rights, these studies also show that “there is much more variability in capacities among youths” in the age range of fourteen to sixteen.220 Furthermore, [*PG379]“[t]his variability gradually decreases until, in the older adolescent years, it is about the same as one finds among adults.”221

Because of this variability, a Massachusetts-like per se rule that creates two distinct age-based tiers is necessary.222 Such a rule provides the optimal balance between recognizing cognitive limitations of younger juveniles and easing public fears that older “seasoned delinquent[s]” may be overprotected.223 The ideal per se rule requires the presence of an interested adult for any juvenile sixteen years old and under, as studies show this age group is the one most likely to misunderstand, or not have the capacity to understand, their rights.224

For juveniles over the age of sixteen, a rebuttable presumption that their constitutional rights were impermissibly waived most adequately affords constitutional protection. For an older juvenile who may not have an adult capacity to understand his rights due to a learning disability, mental disorder, or slow cognitive development, the prosecutor may not be able to overcome this burden if an interested adult did not consult with the juvenile.225 At the same time, such a rule recognizes that a mature juvenile only months away from adult status may not need an interested adult’s consultation in order to effectuate his rights.226

[*PG380] Notwithstanding the aforementioned advantages of the per se rule, opponents point out several flaws.227 For instance, the interested adult standard may require the same worrisome judicial discretion as the totality test regarding who qualifies as an “interested adult.”228 However, recognizing that parents may not always represent the best interests of their children and that an individual who is not a parent or guardian may be able to fulfill the role of an interested adult, this is a necessary danger.229 The possibility of an inconsistency is outweighed by the threshold of rights guaranteed.

Additionally, some critics believe that requiring the presence of an interested adult is too cumbersome and costly.230 Illinois lawmakers considered this a key factor when they scaled down their per se rule to include only juveniles under thirteen who were accused of committing specific crimes and required only that such juveniles have a chance for a telephone conversation with a lawyer.231 Courts have also expressed these same concerns.232 For example, Chief Justice Sanders, writing for the dissent in In re Dino, lamented that he was “not prepared . . . to fasten upon our law enforcement officers . . . inflexible rules . . . under [which], when parents are unavailable, an investigation must be halted. The requirement of the presence of an attorney [*PG381]adds one more costly burden to our already heavily burdened justice system.”233

However, the proposed per se rule does offer some flexibility in that if a parent cannot be located or the juvenile does not desire the parent to be present, it still allows interrogation if a lawyer is present. Thus, law enforcement officers will not be forced to waste valuable investigation time, or hold the juvenile for an unnecessarily long time, while they search for a juvenile’s parent.

In addition to the logistical burdens, other opponents express fear that per se rules will hamper police investigations.234 The Court in Fare v. Michael C., for instance, warned that a per se rule may impose “rigid restraints on police and courts” in dealing with juvenile investigations.235 Interestingly, observers expressed the same concerns when the Supreme Court first created the Miranda warning.236 However, its utility in allowing police to carry out their duties in a manner that protects constitutional rights has become so accepted that the Miranda warning is now “part of our national culture.”237

Like the Miranda warning, per se rules are procedural protections that “inform[s] police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and [they inform] courts under what circumstances statements obtained during such interrogation are not admissible.”238 These inflexible guidelines not only protect the juvenile but serve society’s interest as well.239 For example, although there are clearly instances when juveniles overimplicate themselves or confess to actions they did not take, at the same time, confessions that may be valid are getting thrown out under a totality of the circumstance test because police do not have a fixed [*PG382]standard to follow when determining if a waiver is proper.240 Again, this determination will be left up to the judiciary, which is not consistent in its application of subjective factors.241 Clearer guidelines, if they are followed, may prevent this from happening.

Opponents argue, however, that valid confessions still may be thrown out under per se rules—and juvenile delinquents may be set free—because of a “technicality.”242 This argument may be refuted when several premises are taken together and the language of Miranda v. Arizona is closely examined. First, and most importantly, under the Constitution, an individual’s Fifth Amendment right is by no means a mere technicality.243 The Supreme Court in Miranda discussed, at length, the historical foundation and application of the “long recognized”244 right that is a fundamental aspect of our adversary system.245 Additionally, the Court emphasized that individuals not only have this Constitutional right, but must be aware of it and understand it to effectuate the right.246 This is why the Court found it necessary to implement clear-cut procedures to ensure awareness and understanding in the form of the Miranda warning.247

[*PG383] When juveniles are involved, it is important to additionally factor in the previous discussion that juveniles do not fully understand what it means to have a constitutional right because of their psychological and cognitive development.248 To uphold Miranda’s intent that individuals must understand their rights, then, it is necessary to go beyond the per se warning required for adults when a juvenile is under interrogation.249 Thus, the implementation of a per se rule that requires the presence of an adult during interrogation for juveniles sixteen and under is not a technicality, but the means of ensuring that juveniles understand and apply a fundamental constitutional right.250 Any logistical or economic burden that such a rule imposes upon the juvenile justice system is a necessary one in light of its essential protective function.251

B.  Child-Proof Language

In addition to the per se rule, another interrogation safeguard that should be implemented by police officers during interrogations is the use of simple language that is more comprehensible to juveniles.252 Evidence suggests that Miranda rights should be modified when administered to juveniles to make them more comprehensible.253 In 1985, the Supreme Court of New Hampshire heeded this advice in State v. Benoit by suggesting that a juvenile needs to be informed of his constitutional rights in a language understandable to a child.254 The court suggested that a child should be told “You have the right to remain silent. This means that you do not have to say or write anything. You do not have to talk to anyone or answer any questions we ask you. You will not be punished for deciding not to talk to us.”255 A simplified warning, of course, does not “diminish the potentially intimidating nature of a police interrogation . . . .”256 This is why clear, understandable warnings must be used in conjunction with other [*PG384]safeguards, such as the required presence of an interested adult, to ensure that a juvenile fully understands his rights.257

Similarly, state legislatures need to mandate that state and local police departments research and develop an interview technique that is more reflective of a juvenile’s psychological development, and then train personnel in the implementation of these techniques.258 Although some states do have legislation regarding police training programs on the handling of juvenile matters, the legislation does not specifically address the issue of juvenile interrogation.259 For example, a Connecticut statute provides that “[e]ach police basic training program conducted or administered by the Division of State Police within the Department of Public Safety shall provide a minimum of twenty-seven hours of training relative to the handling of juvenile matters.”260 This statute, however, only makes the general requirement that part of this training must be related to “information relative to the processing and disposition of juvenile matters.”261 Likewise, Florida created a Juvenile Justice Standards and Training Commission “to enable the state to provide a systematic approach to staff development and training for judges, state attorneys, public defenders, [and] law enforcement officers” but, again, it never specifically mandates training procedures related to juvenile interrogation.262

Individuals working with juveniles in interrogations may find it useful to examine, for instance, the various protocols for proper questioning of children currently used in suspected child abuse situations.263 These protocols generally mandate that a mental health professional be present during questioning and prohibit the use of leading or suggestive questions.264 They were developed in large part in the wake of several high-profile child abuse cases, such as the California McMartin preschool case, in which children made false accusations of sexual abuse.265 It seems that the abundance of high-profile false confessions resulting from juvenile interrogations would warrant a similar solution.266

[*PG385] Again, a look at In re B.M.B. illustrates the need for this protocol.267 There, the Supreme Court of Kansas explicitly agreed that the taped transcript showed that the detective “[misled] B.M.B. into thinking that the situation was not serious by failing to tell [him] he was under arrest and facing a very serious charge and by acting as if he were a pal rather than a law enforcement officer.”268 After B.M.B. denies several times that he touched the girl, the detective clearly leads the boy, asking, “You didn’t mean to hurt her, did you? . . . I mean was it an accident?”269 When the juvenile starts to reply “I don’t see how I could have touched though cause all I was doing was putting sand on her . . . ,” the detective interrupts him to say, “but your hand touched her down there, didn’t it? You know, it’s okay . . . . [i]f you talk to me and let me know we can help.”270

At a hearing on the motion for a new trial, a psychiatrist testified that, “I have to say, unfortunately, [that this interview is] probably the worst I have seen in my career.”271 In reference to the use of suggestive and leading questions and comments, he said:

[t]hese are techniques that law enforcement people, to my knowledge, are trained to use with adult suspects . . . . They are wholly inappropriate for use with ten-year-old children. . . . Even in settings where less pressure, less suggestion and less coercion has been studied, we found substantial numbers of children will agree with things that are factually inaccurate . . . perhaps as many as half of all children interviewed in this way would have given some minimal agreement to what was being suggested to them . . . .”272

The Supreme Court of Kansas pointed out a further problem, explicitly mentioning that the detective and juvenile did not “shar[e] a vocabulary for the subject. [In fact] the transcript leaves the reader wondering if the two are talking about the same thing . . . .”273

Juvenile advocates warn that “it is imperative that everyone involved in the [juvenile] justice system reconsider the important role immaturity plays in a juvenile’s commission of a crime and compe[*PG386]tency to aid in his or her own defense.”274 This may require, for instance, evaluators “who are skilled at a culturally sensitive assessment of adolescent development . . . .”275 In terms of interrogation, this means that law enforcement officials need to use words that are not confusing to children when giving them a Miranda warning, as well as when questioning them.276 Law enforcement officers need to stop using leading questions filled with suggestive words that serve to manipulate a juvenile.277 They must not be allowed to suggest intent, as was the case with thirteen-year-old Latasha.278 Instead, police officers need to let a juvenile show, by answering with his own words, whether he “agreed” or “acquiesced.”279


In June 2000, an Ohio appeals court threw out a fourteen year old’s murder conviction because it believed the boy had been coerced into confessing.280 The court reasoned that the line of questioning the juvenile was subjected to would “lead any twelve-year-old to believe `that he had no choice but to submit and confess.”281 In April 1999, a Texas appeals court threw out the juvenile conviction and twenty-five-year sentence of Lacresha Murray, who was eleven years old when she confessed to the murder of a young toddler.282 An editorial in the Washington Post said that after reading the transcript of Lacresha’s interrogation, it was “hard to escape the conclusion that investigators were playing a sort of hardball to which no child should be subjected if the goal is to get the truth from her.”283

[*PG387] Cases similar to that of A.M. or Latasha or Lacresha will keep recurring unless steps are taken to prevent law enforcement officials and prosecutors from exploiting the inherent naivete and immaturity of juveniles.284 Instead, states must require them to take into consideration the nuances of adolescent psychological development. In terms of procedural protections, this means implementing per se rules and undertaking interviews with language that is comprehensible to juveniles. Only then will a juvenile’s Fifth Amendment right be protected.


?? ??