April 2002
Juveniles' Waiver of Miranda Rights: Competence and Evaluation
by Delton W. Young
The tensions inherent within the institution of the juvenile court stem from its conflicting roles — on the one hand, its historic mission as benevolent protector of youth, as parens patriae, versus its role as adversarial agent of the state. These decades-long contradictions are nowhere more apparent than in the matter of juveniles' waiver of the right to remain silent and the validity of confessions obtained after waiving that constitutional right.
Even before Miranda's procedural protections were extended to juveniles in In re Gault (1967),1 the U.S. Supreme Court had urged caution in judging the validity of juveniles' waivers of the right to silence and the voluntariness of their confessions. In Haley v. Ohio,2 the Court stated: "(a juvenile) needs counsel and support if he is not to become the victim first of fear, then of panic." In Gallegos v. Colorado,3 the Court stated: "Without some adult protection against this inequality, a 14-year-old boy would not be able to know, let alone assert, such constitutional rights as he had." In In re Gault, the Court again asserted that "admissions and confessions of juveniles require special caution" and that, because of immaturity and vulnerability, they were at greater disadvantage in dealing with police.
Psychological research over the past two decades supports those early admonitions from the Supreme Court. Empirical studies by psychologist Thomas Grisso4 at the University of Massachusetts, for example, showed that only 20.9 percent of juveniles displayed adequate understanding of the four components of a Miranda warning, and 55 percent of juveniles demonstrated no adequate comprehension of any of the four warnings. Younger juveniles, as expected, showed poorer understanding. Replication studies at other sites supported Grisso's conclusions. In one research program, a substantial proportion of juveniles interpreted the warning that "anything you say can and will be used against you in a court of law" to mean that "any disrespectful words directed to police would be reported to the judge."5
There are good reasons, both quantitative and qualitative, for questioning adolescents' capacities in many waiver decisions. Cognitive and intellectual capacities continue to expand through the teen years and attain maturity only in early adulthood. In addition, during adolescent years, normal children develop the capacity for "formal operational" thinking — the capacity to think in the abstract, to consider hypothetical actions or decisions and then to weigh their practical consequences.
In the matter of Miranda waivers, this entails the capacity to consider a right in the abstract, as provided by law and society, instead of by just those persons in the juvenile's immediate experience. Younger adolescents and those with cognitive developmental delay are at particular risk for not grasping the meaning of those rights and for not understanding their actual function and significance in the context of interrogation.
In addition to those cognitive issues, juveniles' relative emotional immaturity and dependence upon adults renders them more vulnerable to pressure and to suggestion. Many adolescents believe, for example, that being as cooperative as possible with police will bring interrogation to a close more quickly, and benefit them and their families. The personal and emotional strength to resist coercion and to assert a constitutional right is not at the disposal of some youths under interrogation. The result can be waivers of questionable validity and even an occasional false confession. I have seen intellectually normal but emotionally troubled early adolescents yield to leading questions and suggestions, and "confess" to acts and intentions that never took place.
Given the evidence for cognitive and emotional immaturity in juveniles in relation to the demands involved in waiving one's constitutional rights, legal scholar Barry Feld6 concluded: "[R]easons exist to question whether a typical juvenile's waiver decision is or ever can be, 'knowing, intelligent and voluntary.'"
In Fare v. Michael C.,7 the U.S. Supreme Court retreated from the postulate that juveniles require special protections against waiving their right to remain silent. Fare reaffirmed the adult test involving the "totality of circumstances" for assessing the validity of such waivers, and referred to two broad factors: attributes of the individual, and circumstances of the interrogation and statement or confession. Appellate courts have specified several relevant individual factors including the juvenile's age, education, IQ, mental disorder, and previous experience with the police. None is given controlling weight, and no threshold values were specified for age or IQ.
Circumstances of the interrogation that have been considered include the physical setting of the questioning, the length of time the suspect was in custody and apart from family or other support, whether the officers did anything that might be seen as an attempt to intimidate or instill fear, and the presence or absence of an "interested adult" to assist and support the juvenile. The nature and presentation of Miranda warnings themselves can also become an issue. For example, some recitations of Miranda have a pro forma quality and, when asked to "sign at the bottom," may not indicate that the youth has a choice not to waive his or her rights.
Challenges to the validity of a juvenile's confession usually are based upon the claim that the youth lacked the requisite capacities — that he was not competent in that time and circumstance — to waive his right to remain silent. An evaluation by a forensic mental health expert then seeks to determine the youth's cognitive and emotional capacities at the time of the confession.
The majority of Miranda waivers that are ruled invalid are done so because of deficient intellectual functioning. Relevant variables include general intellectual level, easily measured by scientifically well-grounded IQ tests for children and adolescents. The juvenile's reading level and comprehension also can be assessed by standard measures bearing strong validity and reliability. School-administered academic achievement tests also can provide salient data about the adolescent's ability to listen, read, comprehend and understand written and verbal material. In addition to these general tests of intellectual development, the examiner must assess the juvenile's grasp of the meaning and significance of the actual Miranda warnings used prior to his statement. The examiner often will have the juvenile read the specific warnings he was given at the time of the confession, and then paraphrase them in his own words.
With support from the National Institute of Mental Health, Professor Grisso8 developed four instruments, with standardized scoring criteria and statistical norms, for assessing a suspect's understanding of the Miranda warnings. Each instrument has strong psychometric properties — high inter-rater reliability and external validity.
First, the Comprehension of Miranda Rights asks the individual to paraphrase the four warnings to assess his or her general level of comprehension of the warnings. Second, the Comprehension of Miranda Rights-Recognition asks the subject to identify other statements that are "the same as" or "different from" Miranda warnings. This second test addresses the difficulty that some subjects may understand adequately but lack the verbal ability to express what they know.
A third instrument, the Comprehension of Miranda Vocabulary, assesses the subject's grasp of the vocabulary used in the warnings. This instrument aids in the interpretation of low scores on the two comprehension tests. Fourth, the Function of Rights in Interrogation assesses the youth's appreciation of the meanings of Miranda warnings in the context of the legal process. For example, a youth may understand that he has a right to speak to an attorney before being questioned, but this does not indicate whether he understands the function of a defense attorney, for example, that the attorney serves as an advocate.
When cognitive capacities are the primary issue, personality tests may be of limited utility and in some cases may be moot. However, they can be valuable when questions about the juvenile's competence go beyond cognitive/intellectual capacities. One such factor, especially salient with adolescents, is suggestibility. Juveniles who are especially dependent upon adults or who show unusual degrees of deference to authority figures may readily acquiesce to pressure or suggestion. Such suggestibility can be assessed through traditional clinical evaluation methods — interviews and psychological tests. There also are specific tests that may be useful occasionally that measure the individual's proneness to "yield" to suggestion.
When there is a question of mental disorder, clinical assessment methods will come into play. Background information from family, mental health providers, and medical records will provide pertinent data. Formal mental status examination and psychological testing, for example, the MMPI-A, Millon Scales (MMPI), will clarify dimensions of psychopathology. In rare instances, neuropsychological testing may be needed to assess neurological deficits that may preclude a valid waiver.
When psychological evaluation findings cast doubt on a juvenile's capacity to waive his Miranda rights "voluntarily, knowingly and intelligently," one other possibility must be considered — malingering. Malingering is the intentional fabrication of symptoms or deficits for some instrumental purpose, for example, for financial gain or to avoid responsibility for one's actions. Fortunately, there are several well-established strategies for detecting malingering. These include sensitive validity scales on self-report inventories like the MMPI, and inclusion of tests that are nearly impossible to "fake" (e.g., the Rorschach). Also, symptoms that deviate markedly from known syndromes, and patterns of scores that are inconsistent are suggestive of malingering. In addition to these traditional methods, there are standardized tests that specifically assess malingering of various kinds of symptoms.9
Confirmation of significant cognitive or emotional deficits, by itself, is not sufficient to invalidate a Miranda waiver and exclude a confession. Numerous Miranda waivers have been ruled valid even in persons with intellectual deficiency (mental retardation) or severe mental disorder (e.g., schizophrenia). Rather, it must be demonstrated in specific terms how a particular cognitive limitation or emotional weakness is likely to have undermined the individual's capacity — knowingly and intelligently — to waive those rights under the known circumstances. The examiner must not, of course, assert an opinion on the ultimate issue of the validity of the waiver. However, well-researched and clearly presented data about pertinent cognitive and emotional factors will assist the trier of fact in judging the juvenile's competence to waive his right to remain silent.
Dr. Delton Young is a forensic psychologist with Interlake Psychiatric Associates in Bellevue. He has served on the clinical faculties at Harvard Medical School and the University of Washington. He is author of Wayward Kids: Understanding and Treating Antisocial Youth, published in 1999.
NOTES
1. In re Gault, 387 U.S. 1 (1967).
2. Haley v. Ohio, 332 U.S. 596 (1948), p. 599.
3. Gallegos v. Colorado, 370 U.S. 49 (1962), p. 54.
4. Grisso, T. (1998a), Assessing Understanding and Appreciation of Miranda Rights: Manual and Materials; Sarasota, FL, Professional Resources Press.
5. Fulmer, E. (1996), Novak v. Commonwealth: Are Virginia's Courts Providing a Special Protection to Virginia's Juvenile Defendants?, 30 U Rich L. Rev 955.
6. Feld, B. (2000), p. 113., Juveniles' Waiver of Legal Rights: Confessions, Miranda, and the Right to Counsel. In Grisso, T. & Schwartz, R. (Eds.), Youth on Trial: A Developmental Perspective on Juvenile Justice; Chicago, University of Chicago Press.
7. Fare v. Michael C., 442 U.S. 707 (1979).
8. Grisso, T. (1998a)., Assessing Understanding and Appreciation of Miranda Rights: Manual and Materials; Sarasota, FL, Professional Resources Press. Grisso, T. (1998b), Forensic Evaluation of Juveniles; Sarasota, FL, Professional Resource Press.
9. Oberlander, L.B. & Goldstein, N.E. (2001), A Review and Update on the Practice of Evaluating Miranda Comprehension. Behavioral Sciences and the Law, 19, 453-471.
