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