Warning: count(): Parameter must be an array or an object that implements Countable in /nfs/c03/h08/mnt/52664/domains/childrenandthelawblog.com/html/wp-content/plugins/microkids-related-posts/microkids-related-posts.php on line 645
Upon entering the courtroom with his defense attorney, the child starts waving at the judge. When the defense attorney asks the child, “What are you doing?” The child replied, “I’m waving my rights.”
Across our country, children are being funneled through the juvenile justice system. The majority of these children have no real understanding of the court processes they are involved in or the legal consequences that may affect not only their juvenile record, but also their lives. Though juvenile courts are designed specifically for children, the language utilized by attorneys and judges is comparable to a foreign language to children that find themselves involved in the juvenile justice system.
Season 1, Episode 6 of the HBO series, The Wire, illustrates the type of legalese utilized in juvenile courts. At a juvenile court hearing, Bodie, a 16-year-old boy, attempts to follow the rapid-fire dialogue that is occurring between his attorneys, the prosecutor, and the judge. The judge and attorneys use terms such as “respondent,” “juvenile,” “delinquent petition,” “commitment hearing,” “assault,” “narcotics,” “transaction,” “remuneration,” “manipulated by traffickers,” and “home monitoring.” He seems to get lost in the flurry of legalese and technical terms. Bodie seems to have no concept of what this dialogue entails, what any of these terms mean in relation to him, or the potential consequences. He appears to leave the juvenile court hearing with no real comprehension or appreciation for the juvenile justice system. In fact, later in the episode, he remarks to Officer Carver and Officer Herc that “the juvenile system in this city is f*#$%@ up.” These are common scenes in most juvenile courts around the country. Though the juvenile courts are supposed to be designed specifically for children, they do not utilize language that is designed for children to understand the legal expectation placed upon them.
Scientific research and literature indicate that children do not easily comprehend abstract legal vocabulary and concepts. Even the concept of a “right” requires that the child “conceptualize a right as a legal entitlement, providing protection that authorities in the justice system cannot arbitrarily set aside.” A recent Massachusetts’ study illustrates this point. Researchers surveyed children who pled guilty in juvenile court. Overall, the study revealed that the children were “confused and mistaken… even after the words and concepts had been explained, and even among those who had previous juvenile court experience.”
Juvenile courts often confuse “being told” information for actual comprehension of the information. This discrepancy overshadows the crucial constitutional question, “Did the [child] actually understand?” When the time is taken to discover what children actually understand, then it becomes evident that there are significant discrepancies between what is told to the child and what they actually comprehend. For example, in that same Massachusetts’ study, children defined “disposition” as to be “positioned in a wrong place” or to be in a “bad position.”
Furthermore, scientific research has also revealed that an overrepresentation of individuals with language disorders and impairments exists within the criminal and juvenile justice systems. Within the juvenile justice system, the overrepresentation rate appears even greater than in the adult criminal system. Though this paper focuses solely on juvenile offenders and juvenile courts, adult criminal systems should also consider moving away from legalese and technical terms and towards a more plain language approach in order to communicate more effectively with adult defendants.
Communication disorders are defined as “an impairment in the ability to express, understand, and/or process thoughts and information.” These types of disorders affect a child’s ability to use language effectively and “to understand longer sentences and more complex concepts.” Moreover, juvenile offenders as a group tend to be academically deficient and have lower verbal IQs than non-offending juveniles. They tend to have problems receiving and expressing verbal information. In addition, children with language deficiencies often struggle with a lack of ability to deliver effective narratives.
In a recent study, juvenile offenders at the Mendota Juvenile Treatment Center in Wisconsin participated in a complex battery of tests. The tests were designed to assess the juvenile’s “ability to process, understand, and utilize spoken language.” The average age of the children tested was 16 years old. The results revealed that the juvenile offenders’ “spoken language competency” consistently fell below “the bottom one percent of the population at large.” Impaired language skills affect a child’s ability to understand the court processes, communicate with their attorney, understand and comply with the conditions of their release or probation, and to successfully complete any court ordered programs.
Juvenile court judges need to recognize that the language used in their courts is not suited for children. In addition, juvenile courts also need to realize the prevalence of language disorders and impairments among the children entering their doors. In the juvenile court hearings that I have observed, when a child expresses confusion, juvenile court judges often attempt to clarify by repeating the question slower or louder. If the child still expresses confusion, then the juvenile court judge will often direct the defense attorney to take the child outside of the courtroom and to provide explanation to their client. These tactics are not effective or efficient.
Due to the high volume of cases on juvenile court dockets, efficiency is important. Written forms can be efficient and effective if they are drafted in light of the intended reader’s actual ability to read and comprehend the language. Researchers suggest that juvenile court forms should be drafted at “the reading grade level to that of the average user of the document.” One researcher asserts that juvenile court forms “should not exceed an 8th grade difficulty level.”
Specifically, I assert that juvenile court forms should be drafted at a 3rd grade reading level. In most states, the juvenile courts have jurisdiction over children that range from 10 to 17 years old. Even older children who enter the juvenile justice system are not likely to be performing academically on grade level. In 3rd grade, students are usually 8 to 9 years old. Therefore, forms at a 3rd grade reading level are appropriate for a substantial amount of the children entering the juvenile justice system. Judges and attorneys should also utilize dialogue that is approximately at a 3rd grade reading level. Instead of asking children if they understand, judges should ask the child to paraphrase the relevant information in the child’s own words. Developing and utilizing courtroom colloquies in light of the intended audience’s actual ability to comprehend would promote efficiency and effectiveness. In addition, it might reduce recidivism among young offenders if they actually understood the expectations required of them.
Barbara Kaban and Judith Quinlan, Trends & Developments in the Juvenile Court: Rethinking a “Knowing, Intelligent, and Voluntary Waiver” in Massachusetts’ Juvenile Courts, 5 J. Center for Fam. Child. & Cts. 35, 35 (2004) [hereinafter Kaban].
 The Wire (HBO Series) (Season 1, Episode 6).
 See generally, Michele LaVigne and Gregory J. Van Rybroek, Breakdown in the Language Zone: The Prevalence of Language Impairments Among Juvenile and Adult Offenders and Why It Matters, 15 U.C. Davis J. Juv. L. & Pol’y 37 (2011) [hereinafter LaVigne]; Kaban, supra note 1.
LaVigne, supra note 6, at 71.
 Id.at 70; Kaban, supra note 1.
LaVigne, supra note 6, at 72; Kaban, supra note 1.
LaVigne, supra note 6, at 72.
Kaban, supra note 1, at 45.
LaVigne, supra note 6, at 43.
 Id. at 44.
 Id. at 49.
 Id. at 52.
 Id. at 94.
 Id. at 94-95.
 Id. at 86.
 Id. at 41.
 Id. at 114.
Kaban, supra note 1, at 48.
LaVigne, supra note 6, at 117.