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March 2014 , Page 20 

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Defending Juvenile Confessions After J.D.B. v. North Carolina

By Joshua A. Tepfer

The landmark trilogy of juvenile sentencing decisions by the U.S. Supreme Court1 has led to calls for systematic changes to many other aspects of the juvenile justice system. Whether it is challenging other draconian sentences as applied to juveniles,2 abolishing transfer or waiver to adult criminal court,3 or myriad other creative ideas, the possibilities are seemingly endless.

But perhaps no other area remains riper for reform in light of the new juvenile sentencing jurisprudence than the custodial interrogations of children and adolescents. Indeed, even after just the first in this trilogy — the Roper v. Simmons4 decision abolishing the juvenile death penalty — scholars argued that the decision paved the way for changes in the way law enforcement investigates and interrogates juveniles suspected of crimes.5 Juvenile justice litigators and advocates could turn to long-ago U.S. Supreme Court decisions such as Haley v. Ohio,6Gallegos v. Colorado,7 and even the seminal In re Gault,8 all of which explicitly recognizedthe differences between youth and adults in this context. While the cases were from another era, the new “juveniles are different” sentencing decisions gave modern meaning to juvenile interrogation-related quotes such as the following: “we cannot believe that a lad of tender years is a match for the police [during custodial interrogations],”9 or “authoritative opinion has cast formidable doubt upon the reliability and trustworthiness of ‘confessions’ by children.”10 

In 2011, with the decision in J.D.B. v. North Carolina,11 the hope for advancing top-down juvenile justice reform in the interrogation room came to fruition. Using the bricks it laid in Roper and Graham, the Supreme Court saw no need to “blind themselves to the commonsense reality” that children “will often feel bound to submit to police questioning” when an adult would not, ultimately holding that a police officer must consider a suspect’s age when weighing whether he is in custody and entitled to Miranda warnings.12 With the language in J.D.B. as a guide, there is now an open door that litigators can walk through to make a variety of challenges when a seasoned law enforcement officer questions an immature child.

Police Interrogations, False Confessions, and the New Juvenile Jurisprudence

Almost five decades ago, in Miranda v. Arizona itself, the U.S. Supreme Court explained that police interrogations entail “inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.”13 To elucidate its point about the “heavy toll” of custodial interrogation, the Court cited interrogation-training programs such as the Reid Technique14 — which to this day markets itself as “the most widely used approach to question subjects in the world.”15  

The Reid Technique teaches a nine-step interrogation method to extracting confessions.16 At the outset, interrogators isolate the suspect from family or support, during which time they repeatedly challenge any claims of innocence by accusing the suspect of lying and exuding unwavering confidence in his guilt.17 When the suspect feels hopelessly trapped, interrogators offer confession as a carrot. Through a process scholars call minimization, interrogators indicate that the benefits of confessing outweigh the costs of maintaining innocence.18 They may ask the reluctant suspect, for example, whether the suspect intended merely to scare the murder victim, and the gun accidentally went off. Ultimately, when interrogators successfully obtain an admission, they are taught to elicit a narrative and detailed version of the criminal act.19 

While no doubt effective in eliciting true confessions, the U.S. Supreme Court has recognized that these interrogation tactics can be so psychologically powerful as to elicit false confessions at a “frighteningly” high rate.20 Whether it is a lead segment on 60 Minutes21 or a front page article in a local paper, stories of likely false confessions have become ubiquitous in the news cycle.

In addition, the interrogation tactics described above may be employed on even the youngest of suspects. While officers may generally recognize that juveniles are more vulnerable or suggestible,22 in practice, manyofficers simply do not alter their methods when interrogating a young suspect.23 Ultimately, due to juveniles’ “vulnerab[ility]or susceptib[ility] to … outside pressures,”24 their “difficulty in weighing long-term consequences,”25 and their “limited understandings of the criminal justice system and the roles of the institutional actors within it,”26 the majority of the J.D.B. justices recognized the increased risk of false confessions from youth.27 

The question for defenders is how to give life to this case law when representing a young person who made admissions to the police during a custodial interrogation. This article offers some tips for keeping triers-of-fact from hearing a young client’s confession or casting doubt on the statement’s reliability.

Suppressing the Juvenile’s Statement

When faced with a young client who confessed, a defender’s first thought should be to try to keep that confession from the jury. Indeed, in reverence to the evidentiary power of a confession, a leading legal manual once remarked that “the introduction of a confession makes the other aspects of a trial in court superfluous.”28 Examples abound of innocent confessors being convicted even in light of overwhelming evidence of innocence, such as seminal DNA from a minor sexual assault-murder victim that excludes the confessor.29 

A confession must be suppressed when it is obtained in violation of Mirandav. Arizona or is otherwise “involuntary.” For a statement to be admitted into evidence in compliance with Miranda, a suspect must knowingly, intelligently, and voluntarily waive his right to remain silent and right to an attorney when subject to a custodial interrogation.30 The voluntariness of a confession is evaluated using a totality of the circumstances test that considers both the individual vulnerabilities of the suspect and law enforcement’s tactics in eliciting the confession.31 Each of these factors must be analyzed more rigorously when the confessor is a juvenile.

The Miranda Question: Custodial Interrogation

Sometimes, a law enforcement officer will elicit a confession from a juvenile without ever giving Miranda warnings at all, reasoning that he did not need to because the child was either not in custody or was not interrogated. The custody inquiry asks courts to consider whether an objective person would have felt free to leave under the circumstances.32 

This custody question was at the forefront of J.D.B. In that case, a 13-year-old seventh grader suspected of burglary was in social studies class when an investigator arrived at the school and informed administrators, including the assistant principal and a uniformed school resource officer, that he needed to question the boy.33 The resource officer then went into the social studies classroom and removed the suspected student, taking him into a closed-door room where he was met by the assistant principal and the investigator.34 After some small talk, the investigator — with aid from the assistant principal — questioned the boy, leading him to confess to the burglaries.35 No Miranda warnings were ever read.36 

The admissibility of the schoolhouse confession became the centerpiece of the litigation: three North Carolina courts affirmed its admissibility by ruling that J.D.B. was not in custody at the time of the admissions while refusing to consider the child’s age as part of the inquiry.37 The U.S. Supreme Court, however, disagreed, reversing and ordering a reconsideration of the custody determination to account for all relevant circumstances, including the suspect’s age.38 

The import of a consideration of age in this custody calculus cannot be understated. The average young person likely has no idea that he could ever, under any circumstances, choose to terminate an encounter with a law enforcement officer. Kids are taught from birth to respect the authority of adults and punished when they do not — even more so when the elder is a police officer. Unless he clearly understands his right to do so, it is difficult to imagine that any juvenile would ever even comprehend that he could choose to simply ignore an officer’s wishes to speak to him and unilaterally end the encounter.

After J.D.B., defenders must rigorously question any admission obtained by police without Miranda warnings regardless of where, when, or how it was obtained. Traditional questions of whether the suspect was handcuffed, or even whether an adult concerned with the welfare of the child was present, remain important but may be secondary to the simple fact that the suspect is a kid. Any Miranda-less confession at a school is clearly in play after J.D.B., where a child would not only have to have the wherewithal to withstand the investigator but most likely the orders of school administrators or resource officers to cooperate. Even police questioning of a young person in the living room of his own home, with his mother by his side, raises the question of whether a reasonable child has the ability to say to the officer, “I don’t want to answer your questions and would like you to leave.” After J.D.B., defenders must force judges to answer this question and seek to suppress any interrogation-induced statements obtained without the benefit of Miranda warnings.

The question of what constitutes an “interrogation” to a juvenile suspect also comes into play after J.D.B. An interrogation occurs when police should have known that their words or actions were likely to elicit an incriminating response.39 Therefore, even if a suspect is in custody, any Miranda-less admission he makes is admissible if it was not made in response to an interrogation. Where an officer knows he is dealing with a juvenile, the question becomes whether “words or actions” that would not constitute an interrogation for an adult suspect would for a juvenile.

This very question is at issue in the Michigan case of People v. White.40 Seventeen-year-old armed robbery suspect Kadeem White was taken into custody, given his Miranda warnings, and asserted his right to remain silent. Shortly thereafter, the officer said, “Okay. The only thing I can tell you is this, and I’m not asking you any questions, I’m just telling you. I hope that the gun is into a place where nobody can get a hold of it and nobody else can get hurt by it, okay. All right.” Kadeem responded with a brief admission that the state successfully sought to introduce into evidence.41 

While a five judge panel of the Michigan Supreme Court affirmed the admissibility of the confession, it did so over the vigorous dissent of two justices. Citing J.D.B. and other authority, Justice Kelly argued that the investigator “should have recognized that defendant’s age made him especially susceptible to subtle compulsive efforts and that such conduct would likely elicit an incriminating response.”42 Justice Cavanaugh explained that Kadeem’s youth and inexperience increased the likelihood that he would feel compelled to respect the officer and perceive the officer’s statements as requiring a response.43 

While the White case continues, defenders must question claims by law enforcement that police words or actions that led to statements by juveniles were not “interrogations.” Whether the police action took place without Miranda warnings given — or, if they were made after an invocation of rights by the minor as in WhiteJ.D.B. provides a basis for arguing that words or actions that may not constitute an “interrogation” to an adult do to a child.

The Miranda Question: The Waiver of Rights

The question of whether a suspect knowingly, intelligently, and voluntarily waives his Miranda rights is a separate inquiry that is governed by a totality of the circumstances test that has long included the suspect’s age.44 After J.D.B., defenders must be more vigorous than ever in scrutinizing police waivers from juvenile suspects.

At the outset, when a defender takes on a case involving a juvenile confession, it is advisable to have the child quickly evaluated by a psychologist and be administered tests in an effort to determine whether he even had the ability to understand and apply his rights at the time he was questioned. Three decades ago, in a renowned study, psychologist Thomas Grisso concluded that the majority of juveniles under age 15 simply did not understand at least one of their Miranda rights even when properly read to them.45 Even with the increased exposure of Miranda on television shows, more recent studies have replicated these findings.46 And so-called “juvenile Miranda warnings,” which law enforcement often claims are simpler, more kid-friendly warnings that ensure a proper waiver, generally use language that can require at least an eighth-grade educational level, far above the intelligence level of many young confessors.47 

Consider an 11-year-old Florida murder suspect who was administered Miranda warnings slowly and carefully prior to his questioning and admission. Three experts, including one retained by the state, all independently concluded that despite these precautions, this boy simply could not understand his rights. The boy’s confession was thereby suppressed, which ultimately led to a very favorable plea deal for the child.48 A 12-year-old honor roll student in Arkansas initially signed a waiver and made a confession even though during later questioning he made clear that he had no idea what the word waiver meant. When the law enforcement officer misinformed the boy of the word’s meaning, his confession was suppressed and the murder charges eventually dropped.49 Even older juveniles, such as almost-17-year-old Nga Troung, have had their confessions suppressed despite properly-read Miranda warnings when the administration of the rights was downplayed to the unsophisticated minor.50 

The lesson of these cases and the Grisso study is that for certain juveniles, defenders and judges should presume that the suspect could not properly waive his rights. In close cases or with older juveniles, a close to contemporaneous expert evaluation could significantly aid defense counsel’s efforts in keeping out the confession.

Helpful cross-examination tools are available to the defender that should be used when questioning police confession-takers at Miranda suppressionhearings. The International Association of Chiefs of Police (IACP), in conjunction with the Office of Juvenile Justice and Delinquency Adjudication, published a best practice guide to juvenile interviewing and interrogating.51 In regards to Miranda warnings, the guide advises officers to “read each warning slowly, stopping to ask the child after each individual warning to explain it back in his or her own words.” The guide also offers proposed language in administering the rights,52 including a requirement to inform young suspects of the possible adult criminal consequences of the crime. Should officers stray from these guidelines, defenders should argue that they violated law enforcement’s own best practices.

Defenders also must take to heart the “totality of the circumstances” approach when it comes to juvenile waivers. A body of case law is developing that demonstrates the importance of considering the entirety of the interrogation, not just the admonitions and the waiver itself, when it comes to this analysis. In Hart v. A.G.,53 for example, the interrogator “went to great lengths” to explain the Miranda warnings to the suspect; the confession was suppressed, however, where the interrogator later told the suspect that “honesty wouldn’t hurt him,” which the court recognized was incompatible with Miranda. Other videotaped interrogations have shown investigators telling a suspect that “he is going to talk” immediately prior to reading warnings that were supposedly meant to relay to the suspect he had a right not to talk.

When the right case arises, creative juvenile defenders must also lay the groundwork for appellate challenges to established U.S. Supreme Court precedents like Davis v. United States54 and Berghuis v. Thompkins.55 Those cases require suspects to unambiguously invoke their right to silence or an attorney. Both cases, however, involve adult suspects, and categorical statements about juveniles made the by the High Court explaining, for example, their “limited understanding[] of the criminal justice system and the roles of the institutional actors within it” — not to mention the obvious fact that many youth simply do not speak in such a clear or assertive manner — are incompatible with requiring such steadfast assertions from kids. Therefore, if a juvenile says almost nothing for hours on end — like 17-year-old Jonathan Doody56 did — or makes an equivocal request for counsel, defenders should not hesitate to challenge the application of Davis and Thompkins to a young confessor. Indeed, the same holds true when a juvenile asks for and is denied another trusted adult such as a parent; Fare v. Michael C.,57 which held that a request for a probation officer by a young suspect did not invoke Miranda, is now four decades old and decided well before the High Court’s new juvenile jurisprudence.

The Voluntariness Question: Individual Vulnerabilities and Questionable Tactics With Kids

Separate and apart from Miranda questions, if there is coercive police activity, due process requires the suppression of a confession when the totality of the circumstances, including the individual vulnerabilities of the suspect, renders the confession involuntary.58 The recent juvenile jurisprudence affects both the inquiry into individual vulnerabilities and coercive police activity when it comes to young suspects.

As to the former, while young age has always been considered a vulnerability during interrogation, the J.D.B. decision and sentencing jurisprudence re-invigorates the fact that age is more than a number. Even the four J.D.B. dissenters agreed with the majority that juveniles “were more susceptible to police pressure.”59 Indeed, so does law enforcement, including the proprietors of the Reid Technique: they explain that juveniles are more suggestible and advise interrogators to exercise “extreme caution and care” when interrogating them.60 Defenders should not hesitate to make officers articulate, with specificity, what special cautions they took when questioning a youth. And be sure to push back when the presence of a “youth officer” or parental consent — or even parental-presence during the interrogation — is the so-called “special precaution.” Courts have recognized that a police officer who is forced to alter roles and suddenly act in the best interest of a child as a “youth officer” may be no more help than a “potted plant;”61 at the same time, scholars have persuasively argued that the presence of even a well-meaning parent can actually add to the coercive nature of the interrogation for a child.62 

The question of whether certain police tactics are acceptable for adult suspects, yet too coercive for a child, is the more robust inquiry. To this end, practitioners should rely heavily during cross-examinations and suppression arguments on the IACP best practices guide. This executive police guide provides a detailed account of how (and how not) to question juvenile suspects — everything from ensuring police do not make false assumptions from common adolescent behaviors or language; to limiting the questioning to an hour during the day time; to using only open-ended questions; to refraining from suggestions of “help” in exchange for a confession.63 When officers stray from these guideposts, the judge must know about it. Calling an expert on police interrogations of juveniles can be a powerful way to highlight an investigator’s violations of best practices.

Finally, while the Reid Technique talks in general terms about using caution when questioning kids, it is generally silent on what to do differently. There is, however, one notable exception: Whereas the Supreme Court has said interrogators are permitted to deceive suspects during questioning — and the Reid Technique offers this option to interrogators as well — Reid draws a line at using this tactic with children.64 If evidence surfaces that police used deceptive tactics on a young client — whether it be false claims that other witnesses have named the client or even suggesting that there would be lesser consequences resulting from confessing due to the suspect’s youth — defenders must cross-examine on this point and explain that the tactic contradicts Reid training.

Creating Reasonable Doubt With a Confession

Even if a defense lawyer is unsuccessful in keeping the confession out of the trial, there are steps the lawyer can take to make the jury question the statement’s veracity. J.D.B’s assertion that the risk of false confession is “all the more acute” with a juvenile suspect is well-based in research: The Court relied on a brief submitted by the Center on Wrongful Convictions of Youth (CWCY) that pointed to a series of empirical and laboratory studies that show juveniles falsely confess at a significantly greater rate than adults.65 These confessions, moreover, can be startlingly detailed. Nearly one-fifth of DNA exonerations, for example, include false confessions, and 95 percent of those confessions included descriptive facts that seemingly only the true perpetrator would know.66 Defenders should point to these statistics to make sure the jury knows that the defense’s false confession argument is neither unusual nor surprising. Once again, a police interrogation expert, or in some cases, an amicus brief from a third-party organization like the CWCY, may be a good means of relaying this point.

With adequate preparation, however, there is far more a defense attorney can do. The defense should begin by closely examining the confession itself to determine if it “fits” with the physical evidence, other witness statements, and the state’s overall theory of the crime. Every detail, big and small, should be scrutinized. In the category of big, the Texas Court of Criminal Appeals recently ordered a new trial for 16-year-old confessor Daniel Villegas in part because his confession named co-perpetrators whose participation was impossible because they were in custody at the time of the crime.67 In other questionable confessions, however, smaller details, such as the location in the house of the crime, were inconsistent with the physical evidence. In these cases, defenders must force the jury to answer tough questions: Why would a true confessor be unable to accurately relay facts about the crime scene? Why would the suspect truly confess to a heinous crime yet lie about mundane details such as the exact location of the offense?

After determining which facts do not “fit,” defenders must closely examine the accurate details. This process involves analyzing the confession for contamination — or the disclosure of crime scene facts to the suspect prior to the confession. A confession can be “contaminated” by neighborhood gossip, or, in more high-profile cases, through media reports. When investigating the case, a defender must carefully examine what information was in the public domain; if the confession only contains details already known to the general public, a defender should vehemently argue that the confession proves nothing. The same holds true for accurate details that could be explained through innocent knowledge: a young confessor who was also the first person to come upon a dead body and report it to police, for example, would be able to describe the deceased’s clothes or body position even if he did not commit the murder.

By far the most common source of contamination, however, comes from the interrogators themselves. During a pressure-packed interrogation, police investigators may unintentionally reveal crime scene facts to the suspect. Investigating this source of contamination can be done accurately only when the interrogation is recorded in full. In such a case, defenders must vigorously examine the confession to determine if the source of each detail truly and originally came from the confessor or the interrogator. Some confessions literally include no details that were not first proffered by the questioner, and appellate courts have placed the burden on the state to prove a lack of contamination in order to uphold a conviction based mostly on a confession.68 Regardless, defenders must argue that a highly contaminated confession is wholly unreliable.

In the case of an unrecorded interrogation, defenders should examine all police reports, medical examinations, witness interviews, and any other information that reveals what details the police knew prior to the interrogation. If the only accurate details in the confession were already known by law enforcement, this is, at least, circumstantial proof of contamination. And of course the defense attorney should cross-examine investigators as to why they chose not to record such a crucial component of the investigation, again pointing out that the IACP best practices guide recommends full video recording of interrogations of juveniles. More and more courts have taken investigators to task for failing to record.69 

Finally, in presenting the complicated issue of contamination to a jury, defenders should strongly consider using demonstrative exhibits or the videotaped interrogation itself. For the former, a chart detailing each supposed damaging detail, followed by an explanation as to whether either the detail does not fit (i.e., it contradicts other evidence) or there has been pre-confession contamination (i.e., a news report or the investigator’s question, for example), can be a very powerful way to cast doubt on the reliability of the confession. In addition, the defender must embrace the opportunity to play cuts of the videotaped interrogation during cross-examination: when the police officer says the client confessed to a particular detail, play the portion of the tape where the officer said it first and the confessor merely adopted the suggestion. Making the testifying officer directly answer to the recordings of his lies, threats, or promises to the confessor during the interrogation can also be very persuasive to a jury.

Conclusion

Confession cases can be among the most challenging for juvenile defenders. But given the burgeoning public awareness of false confessions and the evolving legal standards and best practices for juvenile interrogations, they can also be among the most exciting. While it may feel tempting to see a confession and begin thinking about obtaining a beneficial plea deal, know that with adequate preparation and research a defense attorney can litigate these cases and win.

Notes

  1. Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 130 S. Ct. 2011 (2010); Miller v. Alabama, 132 S. Ct. 2455 (2012).
  2. Martin Guggenheim, Graham v. Florida and a Juvenile’s Right to Age-Appropriate Sentencing, 47 Harv. Civ. Rts. & Civ. Lib. 457 (2012).
  3. Ellen Marrus & Irene Merker Rosenberg, After Roper v. Simmons: Keeping Kids out of Adult Criminal Court, 42 San Diego L. Rev. 1151 (2005).
  4. 543 U.S. 551.
  5. Tamar Birkhead, The Age of the Child: Interrogating Juveniles AfterRoper v. Simmons, 65 Wash. & Lee L. Rev. 385 (2008).
  6. 332 U.S. 596 (1948).
  7. 370 U.S. 49 (1962).
  8. 387 U.S. 1 (1967).
  9. Haley, 332 U.S. at 599-600.
  10. Gault, 387 U.S. at 52.
  11. 131 S. Ct. 2394 (2011).
  12. Id. at 2399-40, 2408.
  13. 384 U.S. 436, 467 (1966).
  14. Id. at 448-449, n.9-10.
  15. http://www.reid.com/r_about.html.
  16. See Fred E. Inbau, et al., Criminal Interrogation and Confessions(5th ed. 2013).
  17. See Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U. L. Rev. 979, 990 (1997).
  18. Id. at 999.
  19. Id. at 1108.
  20. Corley v. United States, 129 S. Ct. 1558, 1570 (2009).
  21. 60 Minutes: The False Confession Capital (CBS television broadcast Dec. 9, 2012), available athttp://www.cbsnews.com/8301-18560_162-57557685/chicago-the-false-confession-capital/.
  22. John E. Reid & Associates, Inc., Critics Corner, http://www.reid.com/educational_info/criticfalseconf.html.
  23. See generally N. Dickon Reppucci, Jessica Meyer & Jessica Kostelnik, Custodial Interrogation of Juveniles: Results of a National Survey of Police, in Police Interrogations and False Confessions: Current Research, Practice, and Policy Recommendations 67-80 (G. Daniel Lassiter & Christian A. Meissner, eds. 2010).
  24. Roper, 543 U.S. at 569-70; Graham, 130 S. Ct. at 2027.
  25. Graham, 130 S. Ct. at 2032.
  26. Id. 
  27. J.D.B., 131 S. Ct. at 2401.
  28. Charles T. McCormick, Handbook of the Law of Evidence 316 (1983).
  29. See, e.g., People v. Rivera, 962 N.E.2d 53 (IL App. Ct. 2011); People v. Barr & Taylor, Nos. 1-05-3505, 1-05-3699 Cons. (IL App. Ct., 1st Dist., August 28, 2007) (unpublished order).
  30. Miranda, 384 U.S. at 444.
  31. Colorado v. Connelly, 479 U.S. 157 (1986).
  32. J.D.B., 131 S. Ct. at 2402.
  33. Id. at 2399.
  34. Id.
  35. Id. at 2400.
  36. Id. at 2399.
  37. Id. at 2400.
  38. Id. at 2408.
  39. Rhode Island v. Innis, 446 U.S. 291, 300-02 (1980).
  40. People v. White, 493 Mich. 187, 2013 WL 53067 (Mich. Sup. Ct., Feb. 13, 2013).
  41. White, 2013 WL 53067, at *1.
  42. Id. at *20 (Kelly, J., dissenting).
  43. Id. at *18 (Cavanaugh, J., dissenting).
  44. Fare v. Michael C., 442 U.S. 707, 724-25 (1979).   
  45. Thomas Grisso, Juveniles’ Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134 (1980).
  46. See, e.g., Naomi Goldstein et al., Juvenile Offenders’ Miranda Rights Comprehension and Self-Reported Likelihood of Offering False Confessions, Assessment, 10(4), 359-69 (2003).
  47. Richard Rogers et al., The Comprehensibility and Content of Juvenile Miranda Warnings, 14 (1) Psychol., Pub. Pol’y & L. 6387 (2008).
  48. See http://jacksonville.com/news/crime/2013-02-08/story/cristian-fernandez-pleads-guilty-manslaughter-gets-juvenile-sanctions.
  49. T.C. v. Arkansas, 2010 Ark. 240.
  50. Commonwealth v. Truong, 2011 Mass. Super. LEXIS 61 (Mass. Super. Ct. 2011).
  51. Int’l Ass’n of Chiefs of Police, Reducing Risks: An Executive’s Guide to Effective Juvenile Interview and Interrogation (2012).
  52. The recommended language is as follows:
    1. You have the right to remain silent. That means you do not have to say anything.
    2. Anything you say can be used against you in court.
    3. You have the right to get help from a lawyer right now.
    4. If you cannot pay a lawyer, we will get you one here for free.
    5. You have the right to stop this interview at any time.
    6. Do you want to talk to me?
    7. Do you want to have a lawyer with you while you talk to me?
    The officer should stop between each of the seven steps to assure that the child can adequately explain back the admonition in his own words.
  53. 323 F.3d 884 (11th Cir. 2010).
  54. 512 U.S. 452 (1994).
  55. 130 S. Ct. 2250 (2010).
  56. Doody v. Ryan, 649 F.3d 986 (9th Cir. 2011).
  57. 442 U.S. 707 (1979).
  58. Connelly, 479 U.S. at 165.
  59. J.D.B.,131 S. Ct. at 2413 (Alito, J., dissenting).
  60. John E. Reid & Associates, Inc., Critics Corner, http://www.reid.com/educational_info/criticfalseconf.html.
  61. Hardaway v. Young, 302 F.3d 757, 765 (7th Cir. 2002).
  62. See, e.g., Hillary B. Farber, The Role of the Parent/Guardian in Juvenile Custodial Interrogations: Friend or Foe? 41 Am. Crim. L. Rev. 1277 (2004).
  63. Int’l Ass’n of Chiefs of Police, Reducing Risks: An Executive’s Guide to Effective Juvenile Interview and Interrogation 7-12(2012).
  64. Inbau et al., Criminal Interrogation and Confessions, at 255.
  65. J.D.B., 2011131 S. Ct. at 2401 (citing Brief for Center on Wrongful Convictions of Youth et al. as Amici Curiae 21–22).
  66. Brandon L. Garrett, Convicting the Innocent 20 (2011).
     
  67. Texas v. Villegas, No. 76187-41-1, District Court Findings of Fact and Conclusions of Law, Aug. 16, 2012; Ex Parte Villegas, ___ S.W.3d___, No. WR-78260-01, 2013 WL 6636458 (Tex. Crim. App. Dec. 18, 2013).
  68. See, e.g., People v. Rivera, 962 N.E.2d 53 (IL App. Ct. 2011).
  69. See, e.g., Milke v. Ryan, 2013 WL 979127, at *3, 10, 17, 20.

About the Author

Joshua Tepfer is Project Director of the Center on Wrongful Convictions of Youth and an Assistant Clinical Professor at Northwestern University School of Law. In J.D.B. v. North Carolina, the U.S. Supreme Court favorably cited his amicus brief in Justice Sotomayor’s majority opinion.

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