Maintaining the Juvenile’s Right Against Self-Incrimination

Misty Stone, KLJ Staff Editor

Many people may be familiar with the Miranda[1] warnings, but how many of us truly understand them? Arguably, many adults do not understand the significance of their Miranda rights,[2] but what about juveniles whose brains are not yet fully functioning?  Research indicates only 21 percent of juveniles understand their Miranda rights.[3]

Miranda is comprised of four main warnings that must be read to a person before custodial interrogation in order to protect their Fifth Amendment right against self-incrimination.[4] Those rights are that (1) he, the witness, has right to remain silent; (2) any statement made may be used as evidence him; (3) he has the right to an attorney; and (4) if he cannot afford an attorney, one will be appointed to him.[5]  Miranda adds, “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.”[6]

While a person must unambiguously invoke their right to remain silent or right to counsel,[7] the Court does not maintain the unambiguous requirement when it comes to waiving those rights. In North Carolina v. Butler, the Court held that waiver may be implied, as opposed to unambiguous, through “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.”[8] Thus, by merely answering a police officer’s question, the Court held the defendant “voluntarily, knowingly and intelligently”[9] waived his rights.[10] Thus, it is fairly easy to waive your Miranda rights. In fact, the Court held in Fare v. Michael C. that the validity of a juvenile’s waiver would be judged under the same test that applies to adults with the juvenile’s age as merely an ordinary factor in conducting the test. [11]

However, juveniles are arguably more susceptible to self-incrimination because of “their eagerness to comply with adult authority figures, impulsivity, immature judgment, and inability to recognize and weigh risks in decision-making and appear to be at greater risk of falsely confessing when subjected to psychological interrogation techniques.”[12] In response to such risks, Illinois passed legislation mandating juveniles under thirteen have access to an attorney before they are interrogated in murder and sex crimes cases.[13] While a juvenile is not afforded this protection in all scenarios, the juvenile is awarded this protection in cases that are certainly the most damaging to the juvenile’s future.

While many courts find that the presence of a parent will render a juvenile’s confession voluntary,[14] and there are certainly pros to that approach, it is arguably better to mandate that a juvenile have access to an attorney. This is because only 42.3% of adults understand the significance of their Miranda rights.[15] If the parent does not understand the Miranda rights, how can the child? Moreover, given that courts may easily find an implied waiver,[16] a lawyer should be available to explain to the juvenile exactly what his rights are and what they mean. With this safeguard, a juvenile is treated fairly by obtaining the information in order to “knowingly and intelligently” waive his Miranda rights.

In sum, states should enact legislation similar to Illinois that mandates juveniles have access to an attorney before they are interrogated. Given that juveniles are more susceptible to submitting to adult authority figures and general impulsiveness,[17] as well as many other factors that make them more susceptible to self-incrimination, an attorney should be provided to all juveniles before they undergo custodial interrogation, at least in cases involving murder and sex crimes that are of an especially serious nature.


[1] Miranda v. Arizona, 384 U.S. 436 (1966).

[2] Am. Psychological Ass’n, Right to Remain Silent Not Understood by Many Suspects (Aug. 5, 2011), http://www.apa.org/news/press/releases/2011/08/remain-silent.aspx (“Based on [Dr. Rogers’] analysis of nationwide statistics of 9.2 million arrests in 2009, he estimates that 976,000 arrests, or 10 percent of the cases, were compromised by problems with Miranda warnings. That estimate includes 360,000 arrests of adults with mental health disorders; 305,000 arrests of adults without mental health disorders; and 311,000 juvenile arrests.”).

[3] Thomas Grisso, Juvenile’s Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134, 1153 (1980).

[4] Miranda, 384 U.S. at 441.

[5] Miranda, 384 U.S. at 444 (emphasis added).

[6] Id. (emphasis added).

[7] Davis v. United States, 512 U.S. 452, 459 (1994) (defendant failed to invoke his right to counsel because he did not do so “unambiguously”); Berghuis v. Thompkins, 560 U.S. 370, 389 (2010) (extending “unambiguously” standard to invoking the right to remain silent).

[8] North Carolina v. Butler, 441 U.S. 369, 373 (1979).

[9] Miranda, 384 U.S. at 441.

[10] Butler, 441 U.S. at 372.

[11] Fare v. Michael C., 442 U.S. 707, 725 (1979). But see J.D.B. v. North Carolina, 180 L. Ed. 2d 310 (2011).

[12] Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C.L.Rev. 891, 1005 (2004).

[13] Id.

[14] See In re Andrew M., 88 P.3d 552, 555 (Ariz. 2004); In re B.M.B., 955 P.2d 1302, 1311-12 (Kan. 1998); Commonwealth v. A Juvenile, 449 N.E.2d 654, 656 (Mass. 1983); State v. Presha, 748 A.2d 1108, 1113 (N.J. 2000).

[15] Grisso, supra note 3, at 1153.

[16] See Butler, 441 U.S. at 372.

[17] Drizin, supra note 12.