Juvenile-Interrogation

Juvenile Interrogation: The Right to Attorney and Deceptive Practices

What is the Problem?

Until the passage in Maryland of the Child Interrogation Protection Act (CIPA) in 2022, children were often encouraged to give up their right to confer with a lawyer before being interrogated.  This was contributing to Maryland’s extremely high rate of incarceration for minors.   CIPA was a major step forward by requiring children to consult with an attorney before they were the subject of custodial interrogation (see more information here Juvenile Interrogation 2022).  There are on-going attempts in 2024 to weaken CIPA by either by limiting the scope of alleged crimes it covers  (HB326) or by allowing parents to waive the rights of their children for them (HB319/SB52, SB120).

Another problem in the interrogation of juvenile suspects, that was not covered in the CIPA, is that police are allowed to lie to children (and adults) during an interrogation.  Interrogation procedures in most states allow the interrogators to lie to suspects, and this practice can include false statements that someone else has implicated the suspect or that there was DNA evidence at the crime scene. The practice of deception has been shown to be a frequent contributing factor to the false confessions of juveniles that have later been exonerated because of DNA evidence or the confession of the actual perpetrator.  A famous case in New York state in 1989 was the false confessions of five black juveniles, now the Exonerated Five and previously known as the Central Park Five,  under deceptive interrogation practices. Thirteen years later a known rapist confessed to the crime and his DNA was found to match the DNA of the rape kit sample.  The National Registration of Exonerations records that of exonerated defendants (those convicted of crimes they did not commit ), 36% of juveniles falsely confessed to crimes, whereas only 10% of adults falsely confessed to crimes [NRE].  In about 30% of all wrongful convictions that have been overturned by DNA evidence, deceptive interrogation tactics, including false promises of leniency and false claims about the existence of incriminating evidence [Innocence Project].  Connecticut, Delaware, Illinois, Indiana,  Oregon, and Utah  have all enacted laws prohibiting police from using deceptive interrogation tactics on minors.

What’s One Solution

HB169, Custodial Interrogation of Minors – Admissibility of Statements, is a common-sense approach to fixing this remaining problem.  It simply states that if a law enforcement officer intentionally uses information known by the officer to be false in order to elicit a statement, those statements are inadmissible in court.  There is also a provision that allows a court to admit statements where the state can prove, but clear and convincing evidence, that the statements were made voluntarily and not in response to the false information.

Other State Laws

A survey of state laws restricting deceptive interrogation practices with juveniles is included in a June 2023 paper by REID; it states:

“In recent years several states have enacted legislation that prohibits law enforcement investigators from lying to juveniles about the case evidence.”

Illinois: (2021)

‘An oral, written or sign language confession of a minor, who at the time of the commission of the offense was under 18 years of age, made as a result of a custodial interrogation….shall be presumed to be inadmissible….if, during the custodial interrogation, a law enforcement officer or juvenile officer knowingly engages in deception.’ (Deception is defined as ‘the knowing communication of false facts about evidence or unauthorized statements regarding leniency.’)

Oregon: (2021)

‘A peace officer conducting an interview of a youth (under 18 years of age) in connection with an investigation of an act that, if committed by an adult, would constitute a crime may not use deceit, trickery or artifice, or any other misleading interrogation technique, during the interview.’

Delaware: (2022)

‘A statement of a person, who at the time of the commission of an offense was under 18 years of age, is inadmissible in any criminal or delinquency court proceeding if it was made during a custodial interrogation in which deceptive tactics were used. “Deceptive tactics” means the knowing communication by a law enforcement officer of false statements about evidence or false or misleading promises of leniency.’

California: (2022)

‘During a custodial interrogation of a person 17 years of age or younger relating to a misdemeanor or felony, a law enforcement officer shall not employ threats, physical harm, deception or psychologically manipulative interrogation tactics. “Deception” includes, but is not limited to, the knowing communication of false facts about evidence, misrepresenting the accuracy of the facts, or false statements regarding leniency.’

Utah: (2022)

Utah has enacted legislation which states that ‘If a child is subject to a custodial interrogation for an offense, a peace officer, or an individual interrogating a child on behalf of a peace officer or a law enforcement agency, may not knowingly: (a) provide false information about evidence that is reasonably likely to elicit an incriminating response from the child; or (b) make an unauthorized statement about leniency for the offense.’

Indiana: (2023)

Indiana has enacted legislature which prohibits law enforcement from lying to a juvenile suspect (17 or younger) about the evidence in the case; about the penalty of the act; or leniency in the imposition of a penalty for the act. An amendment was added to the legislation that requires police officers to make a reasonable attempt to contact the parents of a child who has been arrested or taken into custody.

Connecticut: (2023)

Legislation signed into law ‘creates a rebuttable presumption that an admission, confession, or statement made to law enforcement agents under interrogation is involuntary and inadmissible in court if deception or coercive tactics were used.’ If the person being interrogated is under the age of 18, the definition of deception or coercive tactics expands to include communicating false facts about evidence that was either known or should have been known to be false to law enforcement agents, communicating false statements or misrepresentations of the law, and communicating false or misleading promises of leniency or some other benefit.” [REID 2023]

References

  1. Delaware House Bill 419 (2021-2022 General Assembly),  An Act to Amend Title 11 of the Delaware Code Relating to Custodial Interrogations. (Deceptive Interrogation Practices Bill).
  2. Gross SR, Jacoby K, Matheson DJ, Montgomery N. Exonerations in the United States 1989 through 2003. J. Crim. l. & CrimiNology. 2004;95:523.
  3. Henning K. Eroding confidentiality in delinquency proceedings: Should schools and public housing authorities be notified. New York University Law Review, 79, 520 – 611 (2004).
  4. McIntyre v. State, 309 Md. 607, 526 A.2d 30 (1987). (Fifteen year old, not allowed to confer with Mother and asked to sign away Miranda rights).
  5. Redlich AD, Goodman GS. Taking responsibility for an act not committed: The influence of age and suggestibility. Law and human behavior. 2003 Apr;27(2):141-56.
  7. Richardson G, Gudjonsson GH, Kelly TP. Interrogative suggestibility in an adolescent forensic population. Journal of Adolescence. 1995 Apr 1;18(2):211-6.
  8. Weill-Greenberg E. Children can be on their own when grilled by police, The Appeal (2021).
  9. Woolard J. Waiver of Counsel in Juvenile Court, Office of Justice Programs’ National Criminal Justice Reference Service, U.S. Department of Justice (2019).
  10. Illinois SB2122, Inadmissibility of statements based on deception
  11. Oregon 2021 SB418, Inadmissibility of statements based on deception
  14. Univ. of Michigan Law Program. Age and Mental Status of Exonerated Defendants Who Confessed, National Registry of Exonerations, March 2020.
  15. The Child Interrogation Protection Act (CIPA), Maryland General Assembly 2022, SB0053/HB0269.