CHILDREN AND THEIR RIGHTS
The United States Supreme Court acknowledged in Haley v. Ohio the immaturity of juveniles and their susceptibility to coerced confessions.
This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. . . But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic.
Modern-day scientists and legal scholars understand the law must treat children differently than adults. It is, therefore, understandable that the legislatures and courts of this land have declared children a protected class. But how can we structure such protection for those who are too immature to understand and exercise their rights when encountering the law?
The courts chose to provide an attorney to children whether they are being adjudicated in juvenile proceedings or in adult court. That same right should be provided to minors when they are being detained and questioned by law enforcement.
The Supreme Court, fearing the powers of modern-day interrogations, requires the police to read suspects their constitutional rights as set forth in the Miranda decision. Modern research undeniably proves that children cannot and do not understand those rights when they are read to them. Just as importantly, they do not foresee nor understand the consequences of waiving those rights. These are decisions that can change the lives of millions of children caught up in the legal system from the moment they are stopped, detained for questioning, and appear in court.
There is only one action that can adequately protect children’s constitutional rights: that children be provided an attorney who can explain their rights to them or their parents/guardian, as well as the consequences of waiving those rights, while supporting the child during custodial questioning by police. But what is custodial questioning? Custodial interrogation occurs when a minor is being questioned by authorities and is not allowed to walk away or go home. In such a situation, the child’s freedom has been restrained and the youth is now under the control and influence of the police.
Two changes are proposed to accomplish the above goal:
1. The Miranda warnings read to children must be simplified and expanded to improve the meaning of such words to young suspects.
2. An attorney must be provided to advise both the child and their parents or guardian what those warnings mean and what the consequences are of waiving their Miranda rights.
To accomplish the two recommended changes to current law, the following modified Miranda rights warnings are proposed.
I. MODIFIED MIRANDA RIGHTS FOR CHILDREN
1. You have the right to remain silent. This means you do not have to say anything or answer my questions or any other officer’s questions.
2. Anything you say may be used against you. This means what you say can be used against you in juvenile court or, if charged as an adult, in adult court. What you say to this or any other officer can get you in serious trouble.
3. Before and during all questioning, you may have your parent or guardian present and may talk privately with your parent or guardian. This means before you say anything to us, you may talk with your parent or guardian. Also, at any time during our conversation, you may talk with your parent or guardian.
4. You or your parent or guardian may talk to an attorney, free of charge, before talking to us.
5. You or your parent or guardian may stop the interview at any time.
6. You or your parent or guardian may, at any time, have an attorney with you during questioning for free.
- Do you want to talk to your parents or guardian?
- Do you want to have a lawyer present?
- Do you want to talk to us?
The new Miranda warnings are designed to educate and warn not just the child, but also the child’s parents or guardian. These new warnings will not by themselves be sufficient to protect our children. State and federal laws must be passed requiring the presence of parents before any custodial questioning can begin whenever a child is detained. Furthermore, children under the age of seventeen must, along with their parents or guardian, consult an attorney before any questioning can begin. Only through laws that require the presence of a parent or guardian and an attorney before and during questioning can a child’s Constitutional rights be adequately protected.
To make the proposed Modified Miranda warnings effective, a Children’s Bill of Rights is proposed to help guide all federal and state legislative bodies when drafting laws to protect children.
II. CHILDREN’S BILL OF RIGHTS
1. A child shall have the same constitutional rights as an adult.
2. A child has the right to be advised of his or her Miranda rights when detained and questioned, in a manner suited to their intellectual development.
3. A child shall have present, before and during any questioning, a parent or guardian or legal caregiver (custodial parent) who shall exercise the child’s Miranda rights in the best legal interest of the child.
4. A request by a child to talk to a custodial parent shall constitute the invocation of the child’s Miranda right to remain silent.
5. No child or custodial parent shall waive the Miranda rights of a child 14 years or younger without first talking to an attorney, who must agree that the child’s Miranda rights may be waived.
6. A child 15 years or older may waive his or her Miranda rights only after the child and their custodial parent first consults with an attorney.
7. If the child or their custodial parent cannot afford an attorney, one shall be provided at no cost before the child is questioned.
8. The child, custodial parent, and the child’s attorney shall be advised of the nature of the matter being investigated and why the child is being questioned.
9. When the custodial parent is suspected of committing a crime, an attorney shall be provided, at no cost, to represent and advise the child regarding the child’s Miranda rights, and the attorney shall be present during questioning of the child.
10. If the child is suspected of a criminal offense, the child’s attorney shall advise the child, and the child’s custodial parent, that the child may be charged as a juvenile offender subject to detention and rehabilitation under juvenile law, or, when allowed by law, charged and sentenced as an adult, including a sentence of life in prison.
11. All questioning of a child who has been detained shall be video recorded. The recording shall be preserved for use in a court of law, irrespective of whether the child is charged with a criminal offense.
12. A child shall not be questioned for more than 4 hours in a 24-hour period and shall be allowed to eat and rest for 8 hours between periods of questioning.
The United States Supreme Court acknowledged in Haley v. Ohio the immaturity of juveniles and their susceptibility to coerced confessions requires particular caution.
This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. . . But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic.
The Supreme Court went on to state [n]o lawyer stood guard to make sure that the police stopped short of the point where he [Haley] became the victim of coercion. No counsel or friend was called during the critical hours of questioning. In Murphy v. Waterfront Commission, Justice White stated the right to remain silent can be claimed.
The Privilege can be claimed in any proceeding, be it criminal or civil, administrative or judicial, investigatory or adjudicatory. . . it protects any disclosure which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used.
The U.S. Supreme Court has also stated that the right to remain silent requires a person be adequately and effectively apprised of their Constitutional rights. Given the developmental progression of a child’s brain, only an attorney can sufficiently advise and protect the rights of a child.
The proposed modified Miranda warnings and the Children’s Bill of Rights will help parents and their children when confronted with the sophisticated interrogation techniques used by today’s police. Few parents understand the legal consequences of waiving the Constitutional right to remain silent, which police can take advantage of in order to get the parent to tell their children to cooperate with the police. To ensure children receive appropriate legal advice, an attorney must be involved whenever a child undergoes custodial interrogation.
CONCLUSION
Thanks to the development of modern imaging science, the mysteries of the brain are being revealed at an astonishing rate. Through sociological and psychological studies, researchers are providing empirical evidence that, when correlated with neuroscientific findings, explains how the brain functions when it performs tasks. For the first time in history, society and the law have scientific proof of the inner workings and the comprehension capabilities of a child’s brain.
Parents know that children are unique and must be treated differently than adults for taboo acts. Yet, American jurisprudence has struggled to find the best way to treat juvenile delinquency. It was not until the 19th century that laws were created to reform delinquent children, rather than punish them under adult law. It has been one hundred and twenty years since the juvenile justice system was created to decriminalize the law’s treatment of children.
In the six decades since the first juvenile court and probation department was enacted in Illinois, our legal system has been unsure of how best to protect children’s rights. This issue is especially important when a juvenile or adult court incarcerates children. In 1967, the United States Supreme Court tried to improve the juvenile justice system’s goal of reform in In re Gault when they ruled that children were persons under the United States Constitution. As such, their Constitutional rights must be protected in the same way that an adult’s rights are protected. The Court held that the Due Process Clause of the Fourteenth Amendment requires that children must make a knowledgeable, non-coerced waiver of their Fifth Amendment right to remain silent before making an admission against their self-interest. The Court declared that an attorney was necessary to help children understand their legal rights. However, the Court only required the presence of an attorney during juvenile or adult court proceedings. During police interrogation, where the presence of an attorney is equally needed, the court only ordered that children be read their Miranda warnings.
We now know that Miranda warnings are not enough. The last forty years of research has shown that children are fundamentally incapable of understanding and exercising their Constitutional rights. It is now time for the law to protect children during both court proceedings and interrogations by the authorities. New legislation is needed to establish a new version of Miranda warnings for children, which requires the presence of an attorney whenever a child is in custody and being questioned. Only then can the Due Process rights of children be adequately protected rights they are incapable of understanding and protecting on their own.