Miranda Rights: Potential Improvements

Please note: This entry is the second part of a discussion regarding difficulties associated with children enjoying the full protection of Miranda rights and some methods that might help improve this problem. To read the first portion, click here.

Miranda rights can be invoked in two ways: by asserting the right to remain silent or requesting an attorney. An attorney once trained her niece and nephew that if they were ever to be stopped by a police officer or any other law enforcement agent, they should state the magic words—“I want to speak with my lawyer”—and then refrain from saying another word. This training may seem comical and unlikely to ever be needed by most kids, but perhaps more significantly, it is a lesson most children are never taught. Thus, the likelihood that a child understands how to make a law enforcement agent’s incessant questioning halt is dubious. For many children, this may mean that they are willing to offer the answers they deem will help them end the affair altogether, irrespective of the truth behind those statements. The likelihood of a false confession is further increased by a child’s desire to please an authority figure.

Given the many obstacles associated with Miranda rights, some jurisdictions take different approaches when explaining this treasured protection. For example, although cops may be authorized to give a child her Miranda rights, other jurisdictions may require that a judge or an attorney give the Miranda rights. A more rare alteration is for a child to never be able to waive the right to an attorney under Miranda. State statutes may also outline other factors, such as the requirement that a parent be present prior to any questioning.

In Michael C. v. Fare, when confronted with a case in which a confession occurred after an alleged waiver of the defendant’s Miranda rights, the United States Supreme Court opted to apply the totality of the circumstances approach. Under this framework, any factor that can affect a child’s ability to fully understand and consequently provide a voluntary, knowing, and intelligent waiver should be weighed. These items may include the child’s age and experience—such as previous encounters with the law, education, circumstances, and sophistication. An effective lawyer can highlight the attributes that might cast doubt on whether the child truly understood what she was agreeing to by waiving her Miranda rights. For example, if the sixteen year-old child is in Special Education classes with a third grade reading level and was given a written statement, one could infer that the child did not understand the written statement that explained her Miranda rights.

These tactics may help reduce the number of false confessions by children. Because children are more susceptible than adults, however, Justice Marshall believed that their request to speak with a trusted adult should invoke Miranda protections as well. Consequently, he dissented in Michael C. v. Fare opining that Michael’s request for his probation officer should have been sufficient to trigger his Miranda rights. A main difficulty with this approach is that even a parent’s conversation with their child does not enjoy protections from mandated disclosure. Attorneys are uniquely positioned to invoke the attorney-client privilege, which guarantees that those conversations can be kept confidential. But maybe allowing a trusted adult to at least explain or reassure the child that she can exercise those entitlements would help protect kids further.

The bottom line, however, is that recent events, like the confessions of Brendan Dassey and the release of his interrogation videos, serve as reminders that although the case of Michael was decided many years ago, children’s susceptibility to providing confessions without fully understanding the accompanying repercussions continues to be a problem. As a result, efforts to adopt and enforce appropriate protections regarding the interrogation of children should be prioritized.

 

Kid Interrogated

Photo courtesy of http://juvenilejusticeblog.web.unc.edu/2012/08/07/the-role-of-the-parent-during-juvenile-interrogation/.

 

Weekly Roundup

Juvenile and Female Offenders, Live Law

The theme of this paper is aimed at providing evidential information indicating the lawful actions of the government in the tour of offering safety and protection to juvenile and female offenders.

Administrators shouldering blame for bad education policy, OCRegister

In April, a California appeals court overturned the 2014 ruling in Vergara v. California that declared that a number of California policies deprived students of their constitutional right to an education, striking down teacher tenure, as well as layoff and dismissal laws.

[. . .]

I was disappointed in this ruling and the judges’ reasoning behind it. The administrators cannot be blamed for statutes that make it extremely difficult to get rid of grossly ineffective teachers.

Nigeria: Girl-Child Education – An Issue With Growing Silence, AllAfrica.com

The issue of girl-child education has been the subject of debate in many fora in Nigeria; from the drafting of policy papers to setting up women right groups. [Yet is] an issue which has not received the desired attention and support.

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Weekly Roundup

The Battle Against Prisons for Kids, The Nation

In the two centuries since its formal birth, the juvenile-justice system has changed radically, while youth prisons have hardly changed at all. It’s as if the clock on reform stopped in the turn-of-the century Progressive Era and has only recently started shakily ticking again.

Making Obama’s Last Lap Count for Kids, The Chronicle of Social Change

The president recently initiated a number of policy positions, executive orders, and other concrete actions to rectify long-standing inequities in the [juvenile justice] system and speed critical reform.

Time Out: Group Says Schools Suspend Too Many Students, Seven Days

Parents said they want better communication with the schools when problems begin. They also asked for a reduction in out-of-school suspensions that disrupt student learning and often force parents to stay home from work. . . The push for reforms in Burlington echoes calls for change at the national and state levels. Education policy makers are responding to increasing evidence that serious punishment — and especially encounters with law enforcement — have a criminalizing effect on young people, a phenomenon known as the “school-to-prison pipeline.”

Leamer: Stop trying Michigan 17-year-olds as adults, The Detroit News

[P]olicymakers are working alongside criminologists and economists to alleviate prison overcrowding, reduce high recidivism, and remedy state and local budget crunches.

But there is one glaring area where Michigan state law lags behind roughly 40 other states — the policy of automatically trying 17-year-olds in the adult court system.

Transform policies into practices and use jobs to fulfill various needs of tribal children, Merinews

The case of rampant child labour in Rajasthan has come to the fore once again, Delhi-based lawyer Shehzad Poonawalla. . . [stated that] even the National Commission for the Protection of Child Rights (NCPCR) has indicated that a large number of children from southern Rajasthan tribal districts, such as Udaipur, Banswara and Dungarpur were being trafficked and sold for work in Gujarat.

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