U.S. Supreme Court
Rebecca Diloreto

Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Neither Fourteenth Amendment nor Bill of Rights is for adults alone. The privilege against self-incrimination protects juveniles adjudicated in juvenile court just as it protects adults. If counsel is not present, for some permissible reason, when admission is obtained from juvenile, greatest care must be taken to assure that admission was voluntary, in sense not only that it has not been coerced or suggested, but also that it is not product of ignorance of rights or of adolescent fantasy, fright or despair. 

Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962). Confession state officers obtained from 14-year-old boy, who had been held five days without officers sending for his parents or seeing that he had advice of lawyer or adult friend, and without their bringing him immediately before judge, was obtained in violation of due process, although boy had made earlier confessions.

 Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948). Interrogation of boy of 15 violated due process. Child not given access to friends or family. Child denied access to attorney that Mom sent to the police station. "When as here, a mere child-an easy victim of the law-is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces." 

Id. 68 S.Ct. at 304. U.S. Circuit Courts U.S. v. Doe, 226 F.3d 672 (6th Cir. 2000). Circumstances of juvenile's confession bore sufficient indicia of voluntariness to warrant its admission. There was strong evidence that Doe was advised of his Miranda rights, knew what the charges were, and was not held in isolation nor interrogated for a great length of time. He does not allege that he was coerced by physical threats or trickery. There is no allegation that the police deliberately postponed calling his mother to exert undue influence over him. He had substantial history of involvement in juvenile justice system and upon being read his rights, he did not ask for attorney or his mother. 

Woods v. Clusen, 794 F.2d 293 (7th Cir. 1986). Confession of 16 1/2 year old murder suspect who had no prior criminal record and no serious previous contact with criminal justice system was not voluntary; suspect was awakened early one morning by police officers hovering in his bedroom, was handcuffed and led away from home ostensibly for theft of chain saw, was stripped of his clothes, given institutional garb, but no shoes upon his arrival at police station, and was fingerprinted and photographed and led to interrogation room where he was confronted with graphic pictures of murder scene and subjected to interrogation.

 Williams v. Peyton, 404 F.2d 528 (4th Cir. 1968). Confession of 15-year-old boy who was enrolled in grammar school and had no prior criminal record at time of arrest, who was held for at least three days without being taken before juvenile judge, who was questioned intermittently by police about purse snatchings, who was questioned in police car after one victim identified him as boy who attempted to take her purse, and who was given no explanation or warning of his constitutional rights, was involuntary, and thus inadmissible in state prosecution. 

Kentucky Murphy v. Commonwealth, Ky., 50 S.W.3d 173 (2001). Violation of statute requiring a peace officer to immediately notify a child's parent that the child has been taken into custody, and to give the parent notice of the specific charge and the reason for taking the child into custody, did not require suppression of juvenile's confession in prosecution of the juvenile as an adult for kidnapping, burglary, and assault, where juvenile had been advised of his Miranda rights before he confessed and there was no evidence presented that the confession was involuntary. Trial counsel did not move for a suppression hearing prior to introduction of the statement. 

Davidson v. Commonwealth., Ky. App., 613 S.W.2d 431 (1981). Confession of one juvenile regarding alleged vandalism of vacant house should not have been admitted in prosecution for criminal mischief in first degree where police officer failed to give juvenile his Miranda warnings and there was nothing in evidence that showed any reason why police officer could not have taken the time to explain to sister in charge of the juvenile what his constitutional rights were. Statute clearly placed on law enforcement obligation to notify person exercising custodial control (pecc) about subject of interrogation and that juvenile was a suspect. 

Other State Case Law State v. Presha, N.J., 748 A.2d 1108 (2000). In determining whether a juvenile or adult suspect's confession is the product of free will, courts assess the totality of circumstances surrounding the arrest and interrogation, including such factors as the suspect's age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, whether physical punishment or mental exhaustion was involved, and the suspect's previous encounters with the law 

State v. Davis, Kan., 998 P.2d 1127 (2000). Where a juvenile consents to participate in a court-ordered psychological examination to determine whether the juvenile is to stand trial as an adult, the examiner is not required to advise the juvenile of his rights under Miranda as long as the information received during the examination is used solely in the juvenile waiver proceedings and is not introduced during trial or sentencing. 

In re Christopher T., Md. App., 740 A.2d 69 (1999). The fundamental right to counsel extends to juveniles in delinquency cases. The standard for waiver of counsel in a delinquency proceeding is necessarily as strict as the waiver standard that attaches in a criminal case. Any waiver of right to counsel in juvenile delinquency proceeding was ineffective without the court informing the juvenile of the nature of the allegations, the range of allowable dispositions, the assistance that a lawyer could provide, and the right to call cross-examine, and obtain witnesses. 

Matter of B.M.B., Kan., 955 P.2d 1302 (1998). Juvenile under 14 years of age must be given opportunity to consult with his or her parent, guardian, or attorney as to whether he or she will waive his or her rights to attorney and against self-incrimination; both parent and juvenile shall be advised of juvenile's right to attorney and to remain silent, and absent such warning and consultation, statement or confession cannot be used against juvenile at subsequent hearing or trial. 

State v. Doe, Idaho App., 948 P.2d 166 (1997). Juveniles are not treated as adults for purposes of assessing voluntariness of juveniles' confessions; consideration must be given to child's age, maturity, intelligence, education, experience with police and access to parent or other supportive adult 

Isbell v. State, Ark., 931 S.W.2d 74 (1996). Burden is on juvenile, even a 14-year-old, to ask to consult with parents before being questioned. Rule that admissibility of custodial statement is dependent upon showing that waiver was made voluntarily and intelligently obtains regardless of whether person said to have executed the waiver is entitled to protection of the Juvenile Code. In deciding whether it is convinced, according to totality of circumstances, that confession was voluntarily and intelligently given, appellate court considers whether special rights accorded to juveniles by statute were observed by authorities taking the statement. 

People v. Brown, Ill. App., 538 N.E.2d 909 (1989). Even if juvenile's mother was not "shunted" from one police station to another during interrogations of juvenile, statements given by juvenile were still inadmissible on the ground that manifest weight of evidence did not reveal juvenile was advised of his Miranda rights and knowingly and intelligently waived them, where neither police officers nor State's Attorney who interrogated juvenile obtained his signature on waiver of rights form, and in fact, officials never even asked juvenile to sign one. When defendant later alleges statement was involuntary and State alleges contrary, fact that police did not even ask defendant to sign waiver of rights form justifies inference that they did not ask because they had not advised him of his rights or because he had not, contrary to State's assertion, agreed to waive his rights. 

People v. Knox, Ill. App., 542 N.E.2d 910 (1989). The receiving of an incriminating statement by a juvenile is a sensitive concern requiring great care, in absence of counsel, to assure the juvenile's confession was neither coerced or suggested, nor a product of fright or despair. A 15 year old defendant was arrested and charged with sexually abusing his sister. His mother arrived at the station house at about the time he was being interrogated, but police did not permit her to see him, nor did they tell him that she was present. The court held that: such conduct by police is inconsistent with the great care required where a juvenile's incriminating statement is received. 

McIntyre v. State, Md., 526 A.2d 30, (1987). Where 15-year-old defendant was arrested and charged with serious crime, denial of access to parent by police prior to extracting statement did not violate Fifth and Sixth Amendments. 

Shelton v. State, Ark., 699 S.W.2d 728 (1985). Age is not overriding consideration when reviewing circumstances of defendant's statement to determine whether it was voluntary and spontaneous so that Miranda warnings were not required. If counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, ignorance or despair. 

Commonwealth v. Williams, Pa., 475 A.2d 1283 (1984). There is no rebuttable presumption that a juvenile is incompetent to waive his Miranda rights without first having an opportunity to consult with an interested and informed adult. Fact that neither juvenile defendant nor his father was advised of defendant's Miranda rights prior to their private conference out of presence of officers did not render defendant's subsequent confession invalid, where at time of his arrest defendant was only six months away from his 18th birthday, defendant had considerable experience with criminal justice system starting at age 13 1/2 , defendant's physical condition was normal at the time of his arrest and detention, defendant was not subjected to physical or psychological abuse, was of normal intelligence and responsive to questions asked of him, both defendant and his father were informed of defendant's rights prior to the confession, defendant's father was present during the interrogation and when defendant waived his rights and made his confession, and defendant and his father had a continuing opportunity to confer in the presence of the authorities. 

State v. Caffrey, S.D., 332 N.W.2d 269 (1983). Juvenile's constitutional right against self-incrimination should be afforded additional protection. If counsel is not present when admission is obtained, court must take great care to assure that juvenile's confession was voluntary in sense not only that it was not coerced or suggested, but also that it was not product of ignorance of rights or of adolescent fantasy, fright or despair. Defendant's confession was not voluntary, given his age, 17, his relative inexperience with police procedures, his lack of friend or family beside him, lateness of hour, lengthy duration of questioning, officers' representations that they would persist in interrogation, and officer's misrepresentation that they could help defendant if he told them what had happened and that he would be forced to take lie detector test. 

People v. Ward, N.Y. App. Div., 95 A.D.2d 351 (1983). The totality of the circumstances compels the conclusion that defendant did not knowingly and intelligently waive his right to counsel, where, after his arrest, defendant was strip searched at the station house in the presence of several police officers, was then paraded into an area for questioning, a number of officers again being present, was induced to incriminate himself when advised that his mother had in effect abandoned him, was crying while making the statement and sought the services of an attorney shortly thereafter; such custodial interrogation rendered defendant's waiver ineffective and the resulting statement involuntary as a matter of law. 

Commonwealth v. A Juvenile (No. 1), Mass., 449 N.E.2d 654 (1983). To successfully demonstrate knowing and intelligent waiver by juvenile there should be a showing that parent or interested adult was present, understood warnings, and had opportunity to explain his rights to juvenile so that juvenile understands significance of waiver of these rights; for purpose of obtaining waiver, in case of juveniles who are under age of 14, no waiver can be affected without this added protection.

State v. Jackson, Ariz., 576 P.2d 129 (1978). The fact that a juvenile's parents are absent while the juvenile is being questioned by police authorities or that 16-year-old murder suspect became emotionally upset when police officer advised him that he would be confronted with his alleged accomplices does not in itself entitle the juvenile to suppression of statements made during the questioning. Examination of circumstances surrounding juvenile suspect's confession, including fact that juvenile had a ninth grade education and was of average intelligence and that he had been given Miranda warnings several times and had not been subjected to any physical abuse or threats, sufficiently established the voluntariness of the juvenile's statement. 

Interest of Thompson, Iowa, 241 N.W.2d 2 (1976). There is no per se exclusionary rule in respect to confessions made by minors, nevertheless, the importance of securing for a minor under interrogation the advice and consultation of a parent, guardian, custodian, adult friend, or lawyer must be emphasized, and the failure to provide such support will throw a deep shadow of judicial distrust over a resulting confession; that considering the totality of the circumstances surrounding the juvenile's verbal confessions, including his mental weakness, emotional instability, judgmental incapacity, and the failure to provide him with requested counsel, his confessions were shown to be involuntary; that his spontaneous incriminating statements made prior to any direct interrogation by the police were not within the Miranda prohibitions, even though the juvenile was in custody; that the trial court did not permit cross-examination of the juvenile to stray beyond the matters testified to by him in the examination in chief; and that even after eliminating consideration of the juvenile's confessions, there was sufficient admissible evidence to establish beyond a reasonable doubt that he participated in the break-in.

In re State in Interest of S. H., N.J., 293 A.2d 181 (1972). Fact that police obtained second confession in presence of father of 10-year-old boy immediately after boy was interrogated and confessed did not detract from impropriety of methods used to obtain first confession. Conduct of police in sending 10-year-old boy's father home from police station when father appeared in interest of his son may be sufficient to show that son's confession was involuntary. Recitation of Miranda warnings to boy of 10 even when they are explained is undoubtedly meaningless and such a boy cannot make knowing and intelligent waiver of his rights. Before confession of juvenile charged with serious offense can be received in evidence, State has burden of establishing that juvenile's will was not overborne and that confession was product of free choice. Placing a young boy in the `frightening atmosphere' of a police station without the presence of his parents or someone to whom the boy can turn for support is likely to have harmful effects on his mind and will.

Rebecca Ballard DiLoreto 
Post Trial Division Director 
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302 
Frankfort, KY 40601
Tel: (502) 564-8006; Fax: (502) 564-7890 E-mail:

rdiloreto@mail.pa.state.ky.us http://dpa.state.ky.us/library/advocate/