Can a ten-year-old understand Miranda rights? Is a ten-year-old able to decide to give them up and speak to the police? Last week, in a four to three decision, the California Supreme Court answered these questions in the affirmative, declining to review a ruling which had held that ten-year-old Joseph H. had "knowingly and intelligently waived" his Miranda rights before confessing to killing his abusive, neo-Nazi father.
Joseph's case highlights just how vulnerable children are when they are questioned by the police. Allowing Joseph to waive his Miranda rights ignores not only settled research, it ignores the United States Supreme Court's clear constitutional mandate that juveniles' developmental status, particularly their impulsivity, poor judgment, and susceptibility to pressure, is relevant to their decision to waive rights. It rejects research showing that a ten-year-old is highly unlikely to fully understand and appreciate the nature of his Miranda rights or the long-term consequences of the on-the-spot decision to waive them. It flouts every legal protection established to protect Joseph from the coercive power of the state or from parents who endanger the exercise of his rights. It just plain defies common sense.
It doesn't take a brain surgeon to know that the average ten-year-old is incapable of waiving his Miranda rights on his own. In fact, most brain surgeons can point to hard physical evidence that they can't. Our brains are a work in progress until we reach our mid-twenties, and the parts of the brain which are the latest to develop and mature - those associated with the frontal lobe - house our executive and decision-making functions. It is now well-documented that teenagers need guidance as their brains develop, especially in the realm of controlling emotional impulses in order to make rational decisions. Ten-year-olds, still a few years shy of adolescence, are even less equipped --socially, emotionally and intellectually -- to make rational decisions, especially potentially life-altering decisions like giving up their right to silence or to an attorney.
To waive his Miranda rights "knowingly, and intelligently," Joseph must have had "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Ten-year-olds like Joseph do not comprehend and appreciate the meaning of these rights. Research shows that many of the words used in the warnings require at least a tenth-grade education. Other research demonstrates that, as a group, adolescents understand legal proceedings less well than adults and make poorer decisions. Not surprisingly, youths fifteen years of age and younger showed the greatest disability. During his interrogation, Joseph was asked, "You have the right to remain silent. You know what that means?" Joseph responded, "That means that I have the right to stay calm." This exchange indicates that Joseph misunderstood the phrase as an instruction about how he should behave.
The U.S. Supreme Court has long held that police must use "special care" when interrogating teenagers since a youth is "an easy victim of the law." This understanding of children was re-affirmed just a few years ago, when the Court mandated that law enforcement must consider how a "reasonable child" would perceive whether they were in custody under Miranda. The Court underscored that "kids are different" than adults - including in ways that make them less likely to think they are free to leave when questioned by the police. Common sense dictates that Joseph, age ten, would be a particularly poor match for the police. Because all teenagers, and particularly pre-teens like Joseph, are particularly susceptible to coercion, courts must account for youths' developmental status and take care to ensure that the child has the opportunity to consult with a competent adult or an attorney prior to any waiver.
But not any adult will do. Joseph's stepmother was by his side when the police questioned him. Because her husband had just been murdered and she was facing criminal charges herself, she was in no position to advise Joseph. Yet the detective informed Joseph that the right to waive was "his choice and his mom's choice." Joseph needed a zealous advocate or guardian who could protect him from his own immaturity and the police. He needed an adult who was not conflicted about their duty to him. He needed an attorney.
June 2016 marks the 50th anniversary of Miranda. In a powerful dissenting opinion in the Joseph H. case, California Supreme Court Justice Goodwin H. Liu urged the Court to take up the issue of whether there is an age below which a child cannot "knowingly and intelligently" waive his Miranda rights. He also suggested that the Court should have addressed what role parents and guardians should play in aiding a valid Miranda waiver and the circumstances under which a parent would be unable to play such a role. For now, the California Supreme Court has passed on these questions. But judicial guidance - from the United States Supreme Court if necessary - is essential to ensure Miranda remains a key bulwark against the power of the state 50 years later. For Joseph H's sake, and the sake of all other minors who are interrogated by police, judicial review must come sooner, not later.