The Age Of The Child* Interrogating Juveniles After Roper v. Simmons

WASH. & LEE L. REV. 385 (2008)

The Age Of The Child* Interrogating Juveniles
After Roper v. Simmons
Tamar R. Birckhead∗


The differences in the psychological and brain development of adolescents
versus adults go a long way to explaining how, in the context of police
interrogation, these common characteristics of adolescence can translate into
attitudes, behaviors, and beliefs that compromise a juvenile’s ability to resist
suggestive questioning techniques.119 For instance, because children and
adolescents have a different sense of time than adults—they live in the present
without much consideration for the long-term consequences of their actions—
studies have shown that it is not uncommon for juvenile suspects to waive their
detailed the 1998 murder of twelve-year-old Stephanie Crowe in her bedroom in Escondido,
California. Her fourteen-year-old brother, Michael, was interrogated by police after he told
them that he had walked by Stephanie’s room that morning but did not see her body. Mark
Sauer & John Wilkins, Haunting Questions: The Stephanie Crowe Murder Case,
SIGNONSANDIEGO.COM, May 1999, at pt. 1 http://www.signonsandiego.com/news/reports/
crowe/crowe1.html (last visited Jan. 12, 2008) (on file with the Washington and Lee Law
Review). Although Michael initially denied any involvement in the crime, after many hours of
interrogation in which the police falsely claimed there was incriminating evidence against him
and promised that Michael would receive "help" instead of jail, he falsely confessed. Id. at pt. 2.
Two of Michael’s teenage friends were also interrogated and falsely confessed to participating
in the crime. Id. at pt. 4. During pretrial motion hearings, Michael’s confession was suppressed
after the judge found that the interrogation techniques had been coercive. Id. at pt. 6. Months
later, Stephanie’s blood was found on the sweatshirt of Richard Tuite, a mentally ill, homeless
man who had been seen in the area on the day of the crime. Id. These developments led to the
eventual dismissal of murder charges against Michael and his friends. Id.
118. See, e.g., Bill Moushey, False Confessions: Coercion Often Leads to False
Confessions, PITTSBURGH POST-GAZETTE, Aug. 31, 2006, http://www.post-gazette.
com/pg/06243/717790-84.stm (last visited Mar. 3, 2008) (citing that 42% of wrongful
convictions of juveniles involved false confessions and that police interrogation techniques can
be coercive but not explaining how or why) (on file with the Washington and Lee Law Review);
Henry Weinstein, Panel Seeks to Curb False Confessions, L.A. TIMES, July 26, 2006, at 3
(characterizing juveniles as being among those most vulnerable to making false confessions but
not discussing why); John Wilkens, Untrue Confessions, SAN DIEGO UNION-TRIB., Apr. 15,
2004, at E1 (stating only in passing that police use coercive tactics during interrogations and
that juveniles are particularly vulnerable to them).
119. It is important, however, to acknowledge that there is a distinction between the role
that brain development plays when determining an adolescent’s culpability and the weight to be
given to the suggestibility or impulsivity of that adolescent during interrogation. There is not, at
this time, scientific evidence to support the claim that the ways in which adolescent brain
development make the death penalty inappropriate also produce systemic unreliability in terms
of adolescents’ responses to interrogation. In other words, evidence that an adolescent’s brain
may be less culpable than an adult’s is not necessarily evidence that an adolescent brain is more
suggestible than an adult’s. It is hoped that such inquiries will be pursued in the near future by
those in the fields of neuroscience and developmental psychology.


THE AGE OF THE CHILD 417
right to an attorney and to falsely confess in order to be released from custody
and allowed to go home.120 Similarly, because juveniles are particularly
susceptible to pressure from authority figures, research has found that they are
more compliant and open to suggestion, repetition, and other social influence
tactics than adults, meaning that a teenage suspect is more likely than an adult
to agree to a false or inaccurate version of an event when interrogated by a
police officer.121
A related problem with the traditional investigative techniques used during
police questioning is that juveniles, as a result of their youth and because of
their very nature, often exhibit behaviors that investigators are trained to
associate with deception.122 For instance, studies have found that although
adolescents have difficulty understanding legal terminology, they rarely ask
questions or request clarification and instead pause, hesitate, or equivocate
before answering.123 It has also been shown that teenagers, as a result of lack of
confidence and general anxiety during questioning, avoid making eye contact,
qualify their statements, respond in monosyllables, and provide nonlinear
narratives that are difficult to follow.124 As discussed previously, all such
characteristics should be considered as indicators of deception according to the
Reid Technique, which offers very little in the way of precautions or guidelines
for investigators who must evaluate the behaviors of adolescents.125 Therefore,
120. See Marty Beyer, Immaturity, Culpability & Competency in Juveniles: A Study of 17
Cases, 15 CRIM. JUST. 26, 28–29 (2000) (discussing a thirteen-year-old who falsely confessed
because he was "desperate to go home" and "believed he could take back his false confession
later"); Kassin & Gudjonsson, supra note 26, at 52 (describing a 1981 study which found that
over 90% of juveniles who are questioned waive their Miranda rights, motivated primarily by
the potential for release from detention).
121. Id. (citing studies from 1995, 1999, and 2003 that found that juveniles are particularly
susceptible when interrogated by police and others in positions of authority).
122. Related to this phenomenon is the law’s expectation that children and adolescents
who have committed serious crimes will demonstrate appropriate levels of remorse. See Martha
Grace Duncan, "So Young and So Untender": Remorseless Children and the Expectations of
the Law, 102 COLUM. L. REV. 1469, 1473 (2002) (drawing on psychology, sociology, and
literature to challenge the law’s view of remorse as an emotional state that "decent" people—
regardless of age—demonstrate after committing a heinous offense, and explaining that for
developmental reasons, adolescents "may show less grief than the system demands").
123. See, e.g., Marty Beyer, What’s Behind Behavior Matters: The Effects of Disabilities,
Trauma and Immaturity on Juvenile Intent and Ability to Assist Counsel, 58 GUILD PRAC. 112,
112 (2001) (discussing that 17%–53% of juveniles charged with criminal offenses have learning
disabilities and that this often results in difficulties processing information).
124. Id.
125. See supra note 95 and accompanying text (listing behaviors that are considered signs
and signals of deception according to proponents of Reid). The 2004 edition of the text on the
Reid Technique has a short chapter that lists factors that may lead to the misinterpretation of
behaviors during the pre-interrogation interview, including two paragraphs that mention that
418 65 WASH. & LEE L. REV. 385 (2008)
it stands to reason that because police officers do not consciously recognize,
and do not control for, the fact that adolescents—by simple virtue of their
adolescence—often talk and behave in ways that are otherwise consistent with
deception, juveniles are more likely to be deceptive in the pre-interrogation
interview than adults.126
There are several procedural aspects of traditional police interrogation that
also contribute to the particular vulnerability of juveniles. Much has been
written by both legal scholars and social scientists regarding the difficulties that
young people have understanding the language and meaning of Miranda rights,
rendering the warnings almost completely ineffectual in serving their stated
purpose—at least for juveniles.127 In addition, empirical studies have shown
caution must be used when evaluating behaviors of children less than nine-years-old. INBAU,
REID, BUCKLEY & JAYNE, supra note 93, at 155–71. The only mention within the chapter of
juvenile subjects older than nine is a single paragraph that includes the pejorative statement:
"Ordinarily it seems to matter rather little to these subjects whether what they say is truthful or
untruthful; they tend to envision themselves as socially unaccountable for their conduct. As a
consequence, their behavior symptoms tend to be unreliable." Id. at 168.
126. Owen-Kostelnik, Repucci & Meyer, supra note 27, at 293. In recent years there have
been a number of well-publicized cases in which police investigators have wrongly found
juveniles to be deceptive during the initial stages of an investigation, leading to coercive and/or
suggestive interrogations that result in false confessions. See, e.g., Steven A. Drizin & Beth A.
Colgan, Tales from the Juvenile Confession Front: A Guide to How Standard Police
Interrogation Tactics Can Produce Coerced and False Confessions from Juvenile Suspects, in
INTERROGATIONS, CONFESSIONS, AND ENTRAPMENT, supra note 114, at 127, 130–51 (discussing
several recent cases in which the police, driven by interviewer bias, conducted investigations
that led them wrongly to suspect that the children they interrogated were involved in the
crimes); see also supra note 117 (discussing the specifics of several recent cases in which
children wrongly confessed as a result of coercive interrogation techniques).
127. A 1981 study of juveniles’ comprehension of Miranda rights concluded that juvenile
detainees aged fourteen and younger were significantly less likely to comprehend their
interrogation rights than older teens and adults. These results were complemented by a study
that found that intelligence strongly correlates with the understanding of one’s legal rights, a
significant finding given that many juvenile offenders have been found to be of low intellect.
See, e.g., THOMAS GRISSO, JUVENILES’ WAIVER OF RIGHTS: LEGAL & PSYCHOLOGICAL
COMPETENCE 39–93, 109–60 (1981) (describing previous research assessing juveniles’ ability to
understand and waive Miranda rights and reporting the results of his own study on this subject);
Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and
Adults’ Capacities as Trial Defendants, 27 LAW & HUM. BEHAV. 333, 333–63 (2003) (finding
that adolescents performed more poorly than adults on a test used to measure competence to
stand trial); Thomas Grisso, Juveniles’ Capacities to Waive Miranda Rights: An Empirical
Analysis, 68 CAL. L. REV. 1134, 1134–66 (1980) (describing the methodology and results of
empirical studies conducted to assess the capacity of juveniles and adults to knowingly waive
their Miranda rights); see also Barry C. Feld, Police Interrogation of Juveniles: An Empirical
Study of Policy and Practice, 97 J. CRIM. L. & CRIMINOLOGY 219, 233 (2006) (finding that
juveniles aged fifteen and younger showed the "clearest and greatest disability" in exercising
their Miranda rights and their adjudicative competence and that while juveniles aged sixteen
and older appeared to function comparably with adults, "many still exhibited significant deficits
THE AGE OF THE CHILD 419
that adolescents are particularly vulnerable to the classic interrogative
techniques of confronting the suspect with false evidence and utilizing other
forms of "trickery."128 There has also been recent research demonstrating that
the presence of an "interested adult"—such as a parent, guardian, or friend—
which is required by some states to protect juveniles during interrogation, has
no impact on the rate at which juveniles waive their rights, as many parents
assume a passive role during questioning or, instead, strongly urge their
children to "do the right thing" and cooperate.129
The majority holding in Roper v. Simmons, therefore, is instructive in
delineating the central reasons why juveniles are particularly vulnerable to
standard police interrogative techniques. Because adolescents are impulsive,
highly suggestible, and susceptible to the influences of authority figures, the
effects of interviewer bias, guilt-presumption, and the Reid Technique can be
especially pernicious. Further compounding the inherently problematic nature
of interrogation, police often mistake the traits and behaviors naturally
which could increase their vulnerability during interrogation"); King, supra note 108, at 458–62
(discussing the difficulties that adolescents have understanding their Miranda rights and their
resultant inability to make a knowing and intelligent decision to waive them); Redlich et al.,
supra note 114, at 112–14 (discussing contemporary empirical studies, including those
conducted by Grisso, that have investigated juveniles’ comprehension of Miranda rights); infra
notes 172–76 and accompanying text (discussing the distinctions drawn between the
comprehension of "younger" versus "older" adolescents and the significance of such for the
arguments advanced in this Article).
128. See Patrick M. McMullen, Comment, Questioning the Questions: The
Impermissibility of Police Deception in Interrogations of Juveniles, 99 NW. U. L. REV. 971, 992
(proposing a per se bar on all police deception in interrogations of juveniles). But see Feld,
supra note 127, at 312–13 (stating that while deceit, trickery, and false evidence play a
"significant role" in eliciting some false confessions and that Miranda does not "significantly
restrain" the interrogation practices police use following waivers, more empirical research is
needed in this area).
129. See Kassin & Gudjonsson, supra note 26, at 52 (citing a 2001 study finding that the
presence of an "interested adult" does not lower the waiver rate for juvenile suspects); see also
Barry C. Feld, Juveniles’ Waiver of Legal Rights: Confessions, Miranda, and the Right to
Counsel, in YOUTH ON TRIAL, supra note 1, at 105, 116–18 [hereinafter Feld, Juveniles’ Waiver]
(discussing that the presence of a parent during interrogation may increase, rather than decrease,
the coercive pressure on a juvenile); Barry C. Feld, Juveniles’ Competence to Exercise Miranda
Rights: An Empirical Study of Policy and Practice, 91 MINN. L. REV. 26, 36 (2006) [hereinafter
Feld, Juveniles’ Competence] (stating that approximately twelve states have a per se rule
requiring a parent, guardian, or other interested adult at interrogation and before rights are
waived and citing examples of such). As of the end of the 2002 legislative session, eleven states
had adopted an "interested adult test," requiring that juveniles have an opportunity to consult
with a parent or other interested adult before or during an interrogation. National Center for
Juvenile Justice (NCJJ), Frequently Asked Questions, http://ncjj.servehttp.com/NCJJWebsite/
faq/legislation5.htm (last visited Jan. 12, 2008) (on file with the Washington and Lee Law
Review).
420 65 WASH. & LEE L. REV. 385 (2008)
exhibited by adolescents for conscious signs of deception, heightening the
potential for interviewer bias and for false statements by juveniles.
The next subpart addresses the disparity that exists between the number
and quality of procedural protections offered to child witnesses and victims
during questioning and the lack of similar safeguards for juvenile suspects.
C. Young Victims and Suspects: Same Posture, Different Treatment
1. Safeguards for Some but Not Others
Extrapolating the holding and bases of Roper v. Simmons to the area of
juvenile interrogation crystallizes the ways in which juvenile suspects are
particularly vulnerable to the implicit biases and standard questioning
techniques of police investigators. The conundrum is that while the criminal
justice system has not, as of yet, acknowledged or directed its attention to what
is known about the suggestibility of juvenile suspects during questioning,
extensive reforms and procedural safeguards have been developed to reduce the
likelihood that unreliable or inaccurate information will be elicited from young
victims and witnesses of crimes.130 Clinicians, for instance, are trained not to
use leading questions, to video or audiotape the interview, and to avoid
intimidating the child by exerting "undue influence."131 Law enforcement
officers often receive specialized training in child development, child
psychology, and the sociology of the family in preparation for interviewing
child victims and witnesses, and they are taught to avoid suggestive or leading
questioning and to limit the total number of interviews conducted with any one
child.132 Judges have also been educated regarding the special issues that may
arise with child witnesses, including the use of alternative procedures designed
130. See Redlich et al., supra note 114, at 122–23 (arguing that while numerous reforms
and accommodations exist for the questioning of child victim/witnesses, there has been very
little done regarding the interrogation of youthful suspects); see also Feld, Juveniles’ Waiver,
supra note 129, at 106 (discussing the "procedural disparity" that occurs given "the two
competing and conflicting images of young people" contained within American law and culture,
which presents them alternately as "innocent, vulnerable, fragile, and dependent children" and
as "vigorous, autonomous, responsible, almost adult-like people from whose criminal behavior
the public needs protection").
131. NANCY W. PERRY & LAWRENCE S. WRIGHTSMAN, THE CHILD WITNESS: LEGAL ISSUES
AND DILEMMAS 236–46 (1991).
132. Id. at 248–50; see also At This Prosecutor’s Office, A Furry Soft Spot for Kids,
A.B.A. J., July 2007, at 18 (describing a prosecutor’s office in Seattle that utilizes service dogs
to assist child victims and witnesses during the legal process—training the dogs to stand by the
children during the initial forensic interview, sit with them during trial, and even accompany
them to the witness box when they testify).
THE AGE OF THE CHILD 421
to reduce trauma to the child, the appointment of experts to inform the court as
to how children process memories and understand language, and the
importance of instructing the jury about children’s abilities and shortcomings as
witnesses.133
In addition, in each of the fifty states, judges have written opinions and
legislators have drafted statutes delineating the basic requirements for the
competency of child witnesses.134 Some states hold that children below a
specified age—usually ten, twelve, or fourteen—are presumptively incompetent
to testify, unless a trial judge finds otherwise.135 Other states require the child
to indicate that she understands the difference between the truth and a lie and to
agree to tell the truth while testifying.136 In recent years, an increasing number
133. PERRY & WRIGHTSMAN, supra note 131, at 250–52.
134. Owen-Kostelnik, Repucci & Meyer, supra note 27, at 288; see PERRY &
WRIGHTSMAN, supra note 131, at 41; see also, e.g., In re J.M., 2006 OH Ct. App. 1203, ¶ 26
(reversing a sixteen-year-old juvenile’s delinquency adjudication for rape and remanding to the
trial court to conduct a more complete competency hearing to determine whether the twelveyear-
old complaining witness was competent to testify).
135. PERRY & WRIGHTSMAN, supra note 131, at 41; see, e.g., COLO. REV. STAT. § 13-90-
106 (2002) (providing a rebuttable presumption that children under the age of ten may not
testify, except in cases involving abuse); IDAHO CODE ANN. § 9-202 (2004) (creating a similar
presumption of incompetence for children under ten years of age and providing that the trial
judge may assess the competency of a child under the age of ten individually); LA. REV. STAT.
ANN. § 15:469 (repealed 1988) (providing that children under the age of twelve must be
evaluated by the court); MO. REV. STAT. § 491.060 (West 1996 & Supp. 2007) (same, also
providing an exception for victims under the age of ten); N.Y. CRIM. PROC. LAW § 60.20
(McKinney 2003 & Supp. 2008) (creating the same rebuttable presumption of incompetence for
people under the age of nine).
136. See PERRY & WRIGHTSMAN, supra note 131, at 43–45 (explaining that this
requirement is also characterized as appreciating "the duty to tell the truth" which is a corollary
of the traditional testimonial oath requirement); see also, e.g., Suggs v. State, 879 S.W.2d 428,
431–32 (Ark. 1994) (holding that the trial court did not abuse its discretion in finding child
witnesses competent where two boys, ages five and seven, showed the ability to distinguish
between the truth and a lie and additionally promised to tell the truth); Z.P. v. State, 651 So. 2d
213, 213–14 (Fla. Dist. Ct. App. 1995) (reversing and remanding the trial court’s decision in a
case where the trial court failed to inquire into whether a child witness knew the difference
between a truth and a lie "in addition to whether the child ha[d] a moral sense of the duty to tell
the truth"); State v. Ransom, 864 P.2d 149, 156–57 (Idaho 1993) (holding that the trial court did
not abuse its discretion in allowing the testimony of a child victim where she testified that she
could distinguish between the truth and a lie and additionally promised to tell the truth);
Commonwealth v. Monzon, 744 N.E.2d 1131, 1135 (Mass. App. Ct. 2001) (discussing whether
a child witness has the "understanding sufficient to comprehend the difference between truth
and falsehood, the wickedness of the latter and the obligation and duty to tell the truth, and, in a
general way, belief that failure to perform the obligation will result in punishment" (citations
omitted)); People v. Shavers, 613 N.Y.S.2d 393, 393–94 (N.Y. App. Div. 1994) (holding that a
child’s testimony at trial was properly admitted where the child "knew the difference between
the truth and a lie and that the word ‘swear’ means that ‘you will always tell the truth’").
422 65 WASH. & LEE L. REV. 385 (2008)
of states have adopted some form of the Federal Rules of Evidence, under
which the judge determines the witness’s competency, while the jury
determines the credibility and weight of that testimony.137 Similarly, we have
seen the development and increasing availability of "taint hearings," in which
defense attorneys can request that an evidentiary hearing be held to determine if
the child’s testimony has been improperly "tainted" by suggestive interviewing
techniques or practices.138 Crawford v. Washington139 provided further
137. See PERRY & WRIGHTSMAN, supra note 131, at 45–47 (discussing Rules 601 and 603
of the Federal Rules of Evidence and the difficulties that states have had in meaningfully
interpreting these rules); see, e.g., ALA. CODE § 12-21-165 (LexisNexis 2005) (providing that
the trial judge determines the competency of potentially incompetent witnesses, including
children); MICH. R. EVID. 601 (stating that everyone is competent to testify as a witness, unless
the trial judge determines otherwise); N.C. GEN. STAT. § 8C-1, Rule 601 (2007) (same); TENN.
R. EVID. 601 (same); TEX. R. EVID. 601 (same). In states where trial judges have such broad
discretion, a finding of competency can only be overruled on appeal if it can be determined that
it was unreasonable for the trial judge to find that a witness was competent. See State v. Hicks,
352 S.E.2d 424, 426 (N.C. 1989) (stating that "[a]bsent a showing that the ruling as to
competency could not have been the result of a reasoned decision, the ruling must stand on
appeal"). Additionally, "[t]he test of competency is the capacity of the proposed witness to
understand and to relate under the obligation of an oath facts" that will enable the jury to decide
a case. State v. Turner, 150 S.E.2d 406, 410 (N.C. 1966). The Turner court, in interpreting the
North Carolina Rules of Evidence, further observed that "[t]here is no age below which one is
incompetent, as a matter of law, to testify." Id.
138. Owen-Kostelnik, Repucci & Meyer, supra note 27, at 288. Taint hearings in child
sexual abuse cases were first adopted in New Jersey, following the highly publicized New Jersey
case of State v. Michaels. See Julie A. Jablonski, Where Has Michaels Taken Us?: Assessing
the Future of Taint Hearings, 3 SUFFOLK J. TRIAL & APP. ADVOC. 49, 50–57 (1998) (describing
the procedure for pretrial taint hearings in New Jersey following Michaels); see also Clayton
Gillette, Comment, Appointing Special Masters to Evaluate the Suggestiveness of a Child-
Witness Interview: A Simple Solution to a Complex Problem, 49 ST. LOUIS U. L.J. 499, 520–37
(2005) (describing the Michaels solution for suggestive interviewing techniques and expanding
on it). But see John E.B. Myers, Taint Hearings for Child Witnesses? A Step in the Wrong
Direction, 46 BAYLOR L. REV. 873, 899 (1994) (describing the procedure adopted by the
Michaels court but asserting that pretrial taint hearings compromise the prosecution of
legitimate sexual abuse cases). Although only a couple of states expressly allow for pretrial
taint hearings, several others address the issue of taint in separate pretrial hearings; these states
include New Jersey, New York, Pennsylvania, and Wyoming. See State v. Michaels, 642 A.2d
1372, 1382 (N.J. 1994) (holding that where a defendant can show that there is sufficient
evidence of unreliability of a child witness’s statements, the state must conduct a pretrial taint
hearing); People v. Michael M., 618 N.Y.S.2d 171, 180 (N.Y. Sup. Ct. 1994) (holding that in
some cases it is appropriate for the court to order a hearing to assess whether trial testimony has
been tainted); Commonwealth v. Delbridge, 855 A.2d 27, 39–40 (Pa. 2003) (holding that "taint
is a legitimate question for examination in cases involving complaints of sexual abuse made by
young children" and that the proper way to explore potential taint is in a pretrial competency
hearing); English v. State, 982 P.2d 139, 146–47 (Wyo. 1999) (holding that taint should be
addressed in a pretrial competency hearing).
139. See Crawford v. Washington, 541 U.S. 36, 68–69 (2004) (finding a Sixth Amendment
violation and holding inadmissible an out-of-court, adverse statement made by petitioner’s wife
THE AGE OF THE CHILD 423
guarantees for the reliability of children’s testimony, holding that out-of-court
statements of witnesses can be admitted only if the speaker is unavailable and
the accused had a prior opportunity for cross examination.140
In comparison, few, if any, protections have been developed to ensure that
the information elicited from juvenile suspects is reliable; in fact, prior to Roper
v. Simmons, the last major decision that protected the rights of juvenile suspects
was In re Gault, decided over forty years ago.141 Gault was preceded by Haley
v. Ohio142 and Gallegos v. Colorado,143 opinions which recognized that young
people, based on their age and relative immaturity, needed explicit protections
under the law, particularly in the context of criminal interrogation.144 Four
where the petitioner had no opportunity to confront the evidence).
140. Id. See generally Robert P. Mosteller, Crawford v. Washington: Encouraging and
Ensuring the Confrontation of Witnesses, 39 U. RICH. L. REV. 511 (2005) (discussing how
Crawford v. Washington radically changed Confrontation Clause doctrine and proposing how
the doctrine should develop in response). Crawford and its progeny have rejected any policybased-
child-hearsay exceptions to this firm rule of exclusion, with one state supreme court
recently noting that "[e]ven though there are sound public policy reasons for limiting a child
victim’s exposure to a potentially traumatizing courtroom experience, we nonetheless must be
faithful to the Constitution’s deep concern for the fundamental rights of the accused." Snowden
v. State, 867 A.2d 314, 329 (Md. 2005). See also Daniel E. Monnat & Paige A. Nichols, The
Kid Gloves Are Off: Child Hearsay After Crawford v. Washington, CHAMPION, Jan.–Feb. 2006,
at 18, 18 (discussing Crawford v. Washington from the perspective of the criminal defense
attorney and offering arguments for keeping accusatory child hearsay out of court).
141. See supra note 8 and accompanying text (discussing the holding and significance of In
re Gault for the development of the rights of juvenile suspects). Gault emphasized that "the
greatest care must be taken to assure that [a minor’s] admission was voluntary." In re Gault,
387 U.S. 1, 55 (1967).
142. See Haley v. Ohio, 332 U.S. 596, 598–99 (1948) (plurality opinion) (holding that a
confession obtained from a fifteen-year-old boy without the benefit of counsel and through the
utilization of coercive techniques failed to comport with due process).
143. See Gallegos v. Colorado, 370 U.S. 49, 55 (1962) (plurality opinion) (concluding that
the totality of circumstances surrounding the confession of a fourteen-year-old, including his
age, his prolonged detention, and the failure to provide him with counsel or a friendly adult,
violated his due process rights).
144. Gallegos, 370 U.S. at 51–55; Haley, 332 U.S. at 599–601. The paternalistic language
used to describe the vulnerabilities of youth in these two cases is striking. In Haley, in which
the U.S. Supreme Court reversed a murder conviction based on the coerced confession of a
fifteen-year-old African-American boy, Justice Douglas wrote for the plurality:
What transpired would make us pause for careful inquiry if a mature man were
involved. And when, as here, a mere child—an easy victim of the law—is before
us, special care in scrutinizing the record must be used. Age 15 is a tender and
difficult age for a boy of any race. He cannot be judged by the more exacting
standards of maturity. That which would leave a man cold and unimpressed can
overawe and overwhelm a lad in his early teens. This is the period of great
instability which the crisis of adolescence produces . . . . He needs counsel and
support if he is not to become the victim first of fear, then of panic.
Id. at 733 (Powell, J., dissenting).
153. Id. at 724–25. Research has shown that juveniles are "more prone than adults" to
confuse their right to an attorney with a right—which they do not have—to a social worker or
other service provider. Redlich et al., supra note 114, at 112.
154. Michael C., 441 U.S. at 730 (Marshall, J., dissenting). Justice Marshall observed that:
A juvenile in these circumstances will likely turn to his parents, or another adult
responsible for his welfare, as the only means for securing legal counsel.
Moreover, a request for such adult assistance is surely inconsistent with a present
desire to speak freely. Requiring a strict verbal formula to invoke the protections of
Miranda would "protect the knowledgeable accused from stationhouse coercion
while abandoning the young person who knows no more than to ask for the . . .
person he trusts."
Id. (Marshall, J., dissenting) (quoting Chaney v. Wainwright, 561 F.2d 1129, 1134 (5th Cir.
1977) (Goldberg, J., dissenting)); see also Ellen Marrus, Can I Talk Now?: Why Miranda Does
Not Offer Adolescents Adequate Protections, 79 TEMP. L. REV. 515, 518–22 (2006) (discussing
major cases that have impacted the law of juvenile interrogations, including In re Gault,
Gallegos v. Colorado, Haley v. Ohio, and Fare v. Michael C.).
See Brief for Juvenile Law Center, et al. as Amici Curiae Supporting Respondent at
25–26, Yarborough v. Alvarado, 541 U.S. 652 (2004) (No. 02-1684), 2003 WL 23055034
(describing statutes that require the presence of an interested adult during interrogations of
minors). In states employing the "interested adult" test, most consider either a parent/guardian
or an attorney to be a satisfactory "interested adult," and very few specifically require an
attorney. Id. In Illinois, minors under a certain age must be represented by counsel during the
entirety of a police interrogation; in Texas, written waiver of one’s Miranda rights is required
from both the child and her attorney. Id. at n.15. In most other states with "interested adult"
requirements, representation by counsel can be waived by a parent or guardian, the juvenile may
waive it herself as long as a parent or guardian is present, or the presence of a parent or guardian
may simply replace the "required" presence of counsel. Id.
158. See Feld, supra note 127, at 226 (finding that approximately one dozen states require
the presence of either a parent or guardian or another "interested adult" presence during police
interrogations, in order to ensure a valid waiver of Miranda rights); see also supra note 129 and
accompanying text (noting that a parent’s presence during interrogation of his/her child may, in
fact, increase the pressure on the juvenile to confess).