6.3 Interrogation of Juveniles; Confessions

• Library: Juvenile Law and Practice in Virginia (Virginia CLE) (2018 Ed.)

6.3 INTERROGATION OF JUVENILES; CONFESSIONS

6.301 In General. Since juveniles often make incriminating statements when confronted by the police, it is absolutely essential that counsel representing children have a thorough understanding of the rules that govern the interrogation of juveniles. Are the rules different from those that apply to adults? Do the police have to provide an opportunity for a parent or guardian to be present before questioning a juvenile? Does questioning of the juvenile have to stop if the presence of a parent or guardian is requested? Must police advise the child of his or her rights in language tailored to the age and understanding of the juvenile? Only a few courts have recognized the anomaly involved in treating a juvenile as inherently incompetent to make other critical legal decisions and yet allowing that juvenile to waive the right to counsel or the privilege against self-incrimination.

Although it is true that juveniles have the same constitutional rights and protections as those afforded to adults in the context of interrogation and confession, the protections afforded to juveniles in this area should in practice actually be greater than for adults. Given the particular vulnerability of children

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and their susceptibility to coercion by adults in positions of authority, great care must be taken to ensure that any incriminating statement of a juvenile client was made only after every required constitutional precaution was exercised. But the case law in Virginia on confessions by juveniles, although quite extensive, is not very protective of young people. It seems to take little account of their unique characteristics and developmental stages and is indeed quite harsh compared to most other states. The Virginia courts have consistently upheld the confessions of juveniles as constitutional following motions to suppress such statements, even when, for example, the factual situation involves telling a 15-year-old that he is an adult for these purposes and refusing to allow him to see his parent. ²⁷

Counsel should ensure that both the waiver of constitutional rights and any following statements made by juvenile clients to the police were knowing and voluntary. Viewing any video or listening to recorded statements from the interviews should be part of counsel's trial preparation. Facts such as the age of the child, the demeanor of the officers, the length of the interrogation, and the absence of the child's parents should all be before the court.

6.302 Voluntariness. The earliest United States Supreme Court cases focused on the question of the voluntariness of the confession as an essential element of Fourteenth Amendment due process protection. Later cases shifted that focus to the Sixth Amendment guarantee of the right to counsel and then to the Fifth Amendment privilege against self-incrimination, as in Miranda v. Arizona. ²⁸Brown v. Mississippi²⁹ was the first decision in which the Court expressed its concern with the admissibility of confessions in state prosecutions. The Court found that convictions predicated on the admission of confessions extracted from three black defendants by physical brutality lacked the essential elements of due process. A little more than 20 years later, in Fikes v. Alabama, ³⁰ the Court shifted its focus from the conduct of the police to the characteristics of the accused. The defendant in Fikes was an uneducated, intellectually disabled African-American who had confessed after days of questioning while detained in a prison far from his family and without the advice or guidance of counsel, family, or friends. ³¹

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The Court in Fikes reviewed the confession cases following Brown and concluded that the overarching principle governing those cases was whether the "totality of circumstances" exhausted the accused of his ability to resist confessing. ³² The totality of circumstances remains the critical test governing voluntariness determinations, and the cases have recognized three general factors in applying this test: police conduct, special characteristics of the accused, and the youth of the accused. ³³ Of course, in a given case there may be a combination of these elements.

Brown focused on police misconduct in obtaining the confessions through physical brutality and torture, although later cases have examined more subtle forms of coercion. If police conduct is sufficiently offensive, a finding that the confession is the product of that coercion will generally result in its exclusion. ³⁴ An inquiry into police misconduct that may render a confession involuntary should examine: (i) the use of physical or psychological pressure; (ii) the isolation of the accused from counsel, family, or friends; (iii) the length of the interrogation; (iv) the deprivation of basic amenities such as food and drink, cigarettes, or sleep; and (v) the use of other similar techniques to overcome the will of the accused. The violation of a statute or court rule governing the handling of juveniles taken into custody may not be sufficient by itself to exclude the confession, but it may become an important factor in determining voluntariness if other coercive circumstances are present.

Another major factor to be weighed in the "totality of the circumstances" analysis is the special characteristics of the person interrogated. In Fikes, the Court looked at the defendant's mental deficiency and lack of education. ³⁵ Apart from mental deficiency, the presence of mental illness or emotional disturbance is an important factor. In Blackburn v. Alabama, ³⁶ the Court recited the defendant's mental history in considerable detail and judged that he was probably not mentally competent when he gave his confession. ³⁷ Many youths involved in the juvenile justice system are emotionally disturbed, intellectually disabled, learning disabled, or suffering from attention-deficit

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hyperactivity disorder (ADHD), and these characteristics may be especially crucial to a determination of voluntariness. Studies have shown that there is a significantly higher incidence of emotional or mental disabilities in an adjudicated delinquent population than in the population at large. ³⁸ Accordingly, school records, which may reveal these disabilities, should be an important starting point for counsel in any factual investigation into the voluntariness of a confession.

Similarly, the physical condition of the accused at the time of the interrogation may be critical. Was the suspect fatigued by continuous questioning or lack of sleep? Was he or she physically ill, under the influence of drugs (whether for medical treatment or otherwise), intoxicated, injured, or wounded? ³⁹ Were there any special or unique characteristics of the accused that made him or her more susceptible to pressure to confess or that impaired the suspect's "powers of resistance to overbearing police tactics"? ⁴⁰

The two earliest Supreme Court cases involving juveniles, even before Kent v. United States⁴¹ and In re Gault, ⁴² dealt with the admissibility of confessions obtained from youths tried as adults. In Haley v. Ohio, ⁴³ a 15-year-old boy was arrested at midnight on a murder charge and questioned by relays of police from shortly after his arrest until 5 a.m. without benefit of counsel or any family or friends to advise him. He signed a confession typed by police when confronted with the alleged confessions of his purported accomplices. The Supreme Court reversed his conviction on involuntariness grounds despite the fact that the boy was advised of his rights. Justice Douglas, for the Court, stated:

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

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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. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight to 5:00 a.m. But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. No friend stood at the side of this 15-year-old boy as the police, working in relays, questioned him hour after hour, from midnight until dawn. No lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion. No counsel or friend was called during the critical hours of questioning. A photographer was admitted once this lad broke and confessed. But not even a gesture towards getting a lawyer for him was ever made.

This disregard of the standards of decency is underlined by the fact that he was kept incommunicado for over three days during which the lawyer retained to represent him twice tried to see him and twice was refused admission. A photographer was admitted at once; but his closest friend—his mother—was not allowed to see him for over five days after his arrest. It is said that these events are not germane to the present problem because they happened after the confession was made. But they show such a callous attitude of the police towards the safeguards which respect for ordinary standards of human relationships compels that we take with a grain of salt their present apologia that the five-hour grilling of this boy was conducted in a fair and dispassionate manner. When the police are so unmindful of these basic...