JurisdictionUnited States
AuthorCrane, Megan Glynn
Date22 September 2017

    Childhood trauma is increasingly recognized as an all-too-common part of the childhood experience in our country. (1) Recent scholarship has highlighted this tragic reality and begun the work of identifying the myriad ways that childhood trauma is relevant to youths' interactions with our criminal justice systems. On a parallel track, burgeoning social science and neuroscientific research make clear that the impact of childhood trauma is profound, tangible, and can endure into adulthood. Momentum is thus building for a research-based, trauma-informed approach to juveniles caught in the web of our juvenile and criminal justice systems.

    While much has been written on how and why childhood trauma increases the likelihood that a youth will end up involved with the criminal justice system--and some has been written on how traumatized youth should be treated once their case is adjudicated and they are sentenced--comparably little has been said about how prior trauma actually impacts a youth's interactions with the players of the criminal justice system and the likely outcomes. This article will focus narrowly on one aspect of a youth's early interactions with the criminal justice system during a critical phase that is often outcome-determinative: the police interrogation.

    It is now widely recognized that modern police interrogation is an inherently psychologically coercive process that can, and all too often does, result in coerced and false confessions from innocent people. In the wake of Netflix's Making a Murderer, the public is also now keenly aware that youth are more vulnerable in the interrogation room and at greater risk for involuntarily and falsely confessing to crimes that they did not commit--even very serious, horrific crimes. (2) Consider Brendan Dassey, the sixteen-year-old subject of Making a Murderer, who confessed in graphic detail to the rape and murder of a twenty-five-year-old woman, but whose conviction was vacated last year by a federal judge (3) in a decision affirmed by the Seventh Circuit Court of Appeals. (4) The Seventh Circuit concluded that Brendan's confession was coerced by two police interrogators who promised him leniency and fed him details of the crime. (5) Also consider Robert Davis, who falsely confessed at the age of eighteen to killing a mother and her child and then burning down their house to cover up the crime, after police lied that his DNA placed him at the scene and threatened him with the death penalty. (6) Robert was finally pardoned by the governor of Virginia and released from prison in 2015 after thirteen years of wrongful incarceration, and fully exonerated in 2016. (7) Sadly, Brendan and Robert are not anomalies; their stories are all too common.

    With this backdrop in mind, what has yet to be adequately researched or addressed by the courts is the interplay of trauma and youth in the interrogation room. While some social science research has been conducted, it has been geographically limited, conducted by a single research team in a foreign setting. (8) This research relied on self-reporting by the subjects and focused on psychological theories, without addressing the ways in which trauma physically changes the brain of a child. (9) While not specifically focused on the interrogation setting, there is now ample neuroscientific evidence establishing that childhood trauma alters the developing brain of a youth in significant ways. We know that youth are already inherently vulnerable in the interrogation room; this article posits that a childhood history of abuse, neglect and/or trauma puts youth at an even greater risk of making an involuntary and/or false confession when interrogated by police.

    The rapidly evolving field of neuroscience has shown that youth are categorically less culpable and more capable of rehabilitation than adults. (10) Principles now recognized by the United States Supreme Court, (11) as well as research on the brains of adolescents and young adults, prove that youth are different in ways that are critically--and constitutionally--relevant to how they respond in an interrogation setting. Neuroscientific research on the brains of victims of childhood maltreatment and trauma also now shows that their brains are different in significant ways than those of non-traumatized youth. (12) Thus, where a juvenile suspect has a personal history of abuse, neglect, and or trauma, courts should consider that history as a factor in the totality of the circumstances voluntariness analysis when determining whether the elicitation of a confession violated a juvenile defendant's constitutional due process rights. (13)

    Childhood trauma is pervasive among American youth--and particularly prominent in the juvenile justice population. Simultaneously, increasing awareness of the vulnerability of youth in the interrogation room creates a ripe environment for a rigorous study of childhood trauma as a risk factor for coerced and false confessions. Such research is necessary for defense attorneys in the courtroom and policymakers in the legislature to advocate for childhood trauma to be included as a factor in the totality of the circumstances test used by courts when determining whether a juvenile confession is voluntary. (14) This is not a radical proposition, nor is it a novel approach; it is grounded in well-established and peer-reviewed research. Moreover, it is a logical extension of the Supreme Court's recent approach to juvenile criminal cases: one that recognizes the constitutional relevance of neuroscience of the adolescent brain. (15)

    This article begins with an explanation of the genesis of this writing, followed by an overview of the pervasive problem of trauma among our country's youth. It then examines the current social science regarding trauma as a risk factor for false and coerced confessions, and the current neuroscientific research on the effects of childhood trauma on the a developing brain. Next, an explanation of police interrogation tactics and youths' inherent vulnerability in the interrogation room sets the stage for the argument that a prior history of childhood trauma will increase a juvenile suspect's risk of coerced and false confession. Finally, this article surveys the current case law addressing childhood trauma as it relates to interrogations and confessions. This article concludes with an argument for courts to include a history of childhood trauma as a factor in the totality of the circumstances analysis used to evaluate confessions by juvenile criminal defendants.


    At the Center on Wrongful Convictions of Youth ("CWCY"), a project that I co-direct at the Northwestern Pritzker School of Law, we represent individuals convicted as juveniles of serious crimes that they did not in fact commit. We specialize in cases where kids have actually confessed--falsely and involuntarily--to such crimes. For these clients, the police interrogation was absolutely the turning point for their cases because their confessions essentially sealed the deal on their ultimate conviction. (16)

    I was inspired to write this article by the story of one of our clients. This client confessed as an adolescent to a very serious crime--a crime that carried a potential life sentence. Before he was picked up by police, his life was colored by neglect, maltreatment, and several specific incidents of trauma. His father had never been in the picture and he was raised by a crack-addicted mother, sometimes with the help of his crack-addicted grandmother. In the months leading up to his arrest, he had been breaking into his neighbors' homes to steal food because his mother had spent all of their money on drugs instead of groceries. My client's school records and documented comments from his teachers indicated that what he endured at home had a pervasive and ongoing impact on his cognitive, emotional, and social functioning.

    Yet, when he was picked up and repeatedly interrogated by the police over the course of two days--including middle-of-the-night interrogations, without a parent or any other interested adult present--no one paused to consider how this history, not to mention his young age, might change the way in which the police should conduct their interrogations. Even worse, despite access to detailed information regarding the sad history of his childhood, neither his defense attorney, nor the forensic psychologist who examined him, nor the judge who admitted and found his confession credible, recognized that my client's traumatic history might have made him vulnerable in the interrogation room. Each and every player failed to recognize that interrogation tactics will likely land differently on a traumatized youth than an average adult, and that the police practices used to elicit my client's confession thus required heightened judicial scrutiny.

    Before I joined the CWCY, I represented death row inmates in California in their post-conviction proceedings. Much of my capital work was dedicated to mitigation, which required an investigation of the personal histories of my clients, their families, and how their experiences--particularly traumatic ones--impacted their functioning and culpability. This work required an appreciation of the debilitating power of trauma and the profound damage that trauma can wreak on an individual's cognitive functioning and behavior. Coming to my CWCY client's case with this professional background, it was immediately apparent that prior trauma and neglect undoubtedly rendered him more vulnerable to the police's psychological manipulation.

    To some extent, this did not even require my prior experience, because is it not just common sense that a kid who has been forced to steal to eat would be easily won over by the police's offer of a cheeseburger and fries from his favorite fast food restaurant? Is it not common sense that a kid who rarely gets to...

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