Police interrogation of juveniles: an empirical study of policy and practice.

• Author: Feld, Barry C.

1. INTRODUCTION

   [B]y any standards of human discourse, a criminal confession can never truly be called voluntary. With rare exception, a confession is compelled, provoked and manipulated from a suspect by a detective who has been trained in a genuinely deceitful art. That is the essence of interrogation, and those who believe that a straightforward conversation between a cop and a criminal--devoid of any treachery--is going to solve a crime are somewhere beyond naive. If the interrogation process is, from a moral standpoint, contemptible, it is nonetheless essential. Deprived of the ability to question and confront suspects and witnesses, a detective is left with physical evidence and in many cases, precious little of that. Without a chance for a detective to manipulate a suspect's mind, a lot of bad people would simply go free. (1) Interrogation manuals and training programs teach police to use psychological tactics and strategies to heighten suspects' stress and anxiety and to manipulate their vulnerabilities to obtain confessions. (2) Most people would regard as reprehensible some of the deceptive techniques that police routinely use if employed by their acquaintances in everyday life. (3) Misrepresenting facts, presenting false evidence, lying, and deceit are part and parcel of the interrogation process. (4)

   A suspect's self-incriminating statement leads almost ineluctably to a plea or conviction. (5) A relationship exists between certain types of interrogation tactics, false confessions, and wrongful convictions. (6) Cases abound of innocent people who are wrongly convicted based solely on false confessions of dubious reliability. (7) Aggressive or manipulative techniques may be especially dangerous when police employ them with vulnerable suspects, such as those with mental retardation or juveniles. (8)

   Despite youths' vulnerability in the interrogation room, courts treat them as the functional equivalents of adults and use the adult legal standard--"knowing, intelligent, and voluntary under the totality of the circumstances"--to gauge their waivers of Miranda rights and the voluntariness of confessions. Interrogation manuals recommend that police use the same techniques with children as with adults, despite developmental psychologists' doubts that juveniles possess the cognitive ability or judgment necessary to function on par with adults. (9)

   We know remarkably little about how police actually question delinquents. Most of what the legal community--judges, law professors and criminologists, and policymakers--and the public know about interrogation practices derives from anecdotal cases of police abuse and false confessions often elicited from young, unsophisticated children. Dramatic portrayals of police interrogation in movies and television programs bear scant relationship to the mundane reality most criminal suspects experience. Four decades after the Supreme Court decided Miranda, we still have remarkably few empirical studies by criminologists or legal scholars about how police actually question suspects. Police departments are extremely reluctant to grant researchers unrestricted access to interrogation rooms. Concerns about confidentiality and protection of human subjects make it even more difficult to obtain empirical data or to directly observe police questioning juveniles.

   This Article presents the first systematic quantitative and qualitative data--interrogation tapes and transcripts, police reports, juvenile court filings, and probation and sentencing reports--about how police question juveniles. Section II summarizes the law governing police interrogation of juveniles. Section III examines developmental psychological research on juveniles' competence to exercise legal rights. Section IV reviews empirical studies of police interrogation, social psychological research on interrogation, and analyses of practices associated with eliciting false confessions. Section V describes the methodology and data in this study. Section VI analyzes routine police interrogation of juveniles sixteen years of age or older and charged with felony-level offenses. An earlier article analyzed sixty-six juveniles' competence to exercise Miranda rights. (10) This Article examines how police interrogated the fifty-three juveniles who waived their rights. It describes the techniques police used, how juveniles responded to those tactics, the length of interrogations, and the fruits of those efforts. Section VII discusses three policy issues: recording, interrogation length, and use of false evidence during questioning.

2. LEGAL FRAMEWORK GOVERNING INTERROGATION OF JUVENILES

   The Supreme Court in In re Gault granted juveniles the Fifth Amendment privilege against self-incrimination in delinquency proceedings. (11) As a result, the Court assumes that police should administer a Miranda warning to juveniles prior to custodial interrogation. (12) Decades earlier, in Haley v. Ohio (13) and Gallegos v. Colorado, (14) the Court warned trial courts to carefully evaluate the impact of youthfulness and inexperience on the voluntariness of confessions and excluded statements coerced from fourteen- and fifteen-year-old youths. Gault reaffirmed that children are not the functional equivalents of adults when interrogated by police. (15)

   In Fare v. Michael C., (16) the Court ignored its earlier concerns about youths' vulnerability and endorsed the adult waiver standard--"knowing, intelligent, and voluntary under the totality of the circumstances"--to evaluate juveniles' waivers of Miranda rights. (17) The Court denied that developmental and psychological differences between children and adults required different procedures for youths. (18) Fare asserted that the adult waiver standard provided judges with the flexibility needed to assess juveniles' invocations or waivers of Miranda rights. (19) In Yarborough v. Alvarado, (20) the Court held that the "custody" sufficient to require a Miranda warning (21) reflected objective factors indicating a restraint of liberty and found that youthfulness or inexperience with police had no bearing on whether a reasonable person would feel free to leave. (22) Alvarado acknowledged that the voluntariness of juveniles' Miranda waivers and confessions included subjective elements like youthfulness and inexperience. (23)

   Trial judges consider both subjective and objective factors when they decide whether a juvenile made a "knowing, intelligent, and voluntary" waiver or gave a voluntary confession. The inquiry includes both offender characteristics--age, education, IQ, and prior contact with law enforcement--and features associated with the interrogation--location, methods employed, and duration of questioning. (24) The "totality" approach gives judges broad discretion theoretically to protect youths without unduly restricting officers' ability to question them. (25)

   About a dozen states require the presence of a parent or other "interested adult" when police interrogate juveniles as a prerequisite to a valid Miranda waiver. (26) Those states assume that most juveniles require an adult's assistance to effectively exercise Miranda rights. (27) They presume that a parent will enhance a juvenile's understanding of and ability to exercise rights (28) and reduce coercive pressures. (29) Courts recognize that juvenile justice policies have become more punitive and that youths require additional safeguards to achieve functional procedural parity with adults. (30) Commentators generally support parental presence safeguards, (31) even though they recognize the limited utility of such safeguards. (32)

   Like most states, Minnesota allows judges to decide whether a juvenile made a "knowing, intelligent, and voluntary" Miranda waiver under the "totality of the circumstances." (33) The Minnesota Supreme Court reaffirmed the "totality" approach after Fare and has repeatedly rejected juveniles' claims for a parental presence rule. (34) A parent's absence undermines a waiver only if a juvenile repeatedly requested to speak with his parent both before and after he received his Miranda warning. (35) Federal and Minnesota law treat juveniles as equal to adults in the interrogation room. Youthfulness, inexperience, or parents' absence are simply some of the factors judges consider when they assess Miranda waivers.

3. DEVELOPMENTAL PSYCHOLOGICAL RESEARCH ON JUVENILES' COMPETENCE

   Developmental psychologists strongly question whether juveniles are competent to make "knowing, intelligent, and voluntary" waiver decisions. Thomas Grisso has studied juveniles' legal competencies for three decades and reports that many do not understand the language of a Miranda warning well enough to make a valid waiver. (36) Because many juveniles do not understand the Miranda warning, they cannot exercise their rights as effectively as adults, who better understand the warnings. (37) Although juveniles consistently underperformed when compared with adults, they most frequently misunderstood their fight to consult with an attorney and to have one present during police questioning. (38) In studies, competence correlated with age; younger juveniles understood Miranda warnings even less often than did mid-adolescents. (39) Juveniles sixteen years of age and older understood Miranda warnings about as well as did adults, although substantial minorities of each group misunderstood some components. (40)

   Even youths who understand the words of a Miranda warning may not be able to exercise them effectively. Juveniles do not appreciate the function or importance of rights as well as adults. (41) They have greater difficulty than adults conceiving of a right as an absolute entitlement that they can exercise without adverse consequences. (42) Rather, they regard a right as something that authorities allow them to do, but which officials can unilaterally retract or withhold. (43)

   Social expectations of obedience to authority and children's lower...