Why Minors Accused of Serious Crimes Cannot Waive = Counsel
Stephen Ceci
8 Court Review Winter 1999
In Chicago recently, a 9 year old boy was charged with murder = after=20 confessing under police interrogation to having been in a fight with his = 5 year=20 old foster brother the day before his brother died. The boy=E2=80=99s = admission was made=20 with no lawyer present, at 12:45 a.m., after he was held in custody for = nearly=20 five hours. He supposedly waived his Miranda rights to remain silent, to = refrain=20 from making self-incriminating statements, and to have counsel present; = he=20 allegedly did this knowingly and without coercion. In a controversial = decision,=20 a Cook County judge threw out the boy=E2=80=99s confession.
Elsewhere around the nation, there have been many similar cases. In = Austin,=20 Texas, 11 year old LaCresha Murray made self incriminating statements = during a=20 lengthy police interrogation at which neither parent nor counsel was = present.=20 Based on these statements, she was convicted of murdering a 2 year old = in her=20 care and sentenced to 25 years. An appellate court judge overturned her=20 conviction on appeal, though prosecutors are now challenging this = reversal in=20 Texas Supreme Court.
From the perspective of psychological research, these judges were = correct:=20 Many innocent adults have succumbed to the pressures of lengthy = interrogation,=20 and it is unrealistic and inhumane to expect children to advocate for = their best=20 interests under such intense circumstances, despite the attempt by law=20 enforcement to explain their Miranda rights. Volumes of research = demonstrate=20 children=E2=80=99s heightened suggestibility, willing ness to comply to = gain adult=20 approval, and lack of understanding of the ramifications of their = statements.=20 For more than two decades, I have studied the factors that cause = children to=20 succumb to adult suggestions and pressures to comply. For the = cognitively=20 unarmed child, an interrogation by experts is no con test=E2=80=94 = children can be made=20 to say things that are incriminating, even if they are false.
Those familiar with the July 1998 murder of Ryan Harris in Chicago = will=20 recall that two boys, aged 7 and 8, confessed to murdering and molesting = the 11=20 year old girl after hitting her on the head with a rock while she was on = her=20 bicycle. The boys made their confessions without counsel present during = a=20 lengthy interrogation that was not taped. Later, a 27 year old ex = con=E2=80=99s semen=20 was found on the dead girl=E2=80=99s body and he was indicted for her = murder. The two=20 boys have been exonerated. Why did these children admit to things they = didn=E2=80=99t=20 do?
Consider the techniques sometimes used by police to interrogate = children.=20 Interrogators are permitted to deceive, promise, and threaten to obtain = a=20 confession. While most adults may be sophisticated enough to demand = their rights=20 to counsel under such circumstances, children are not.
Can a child, for example, appreciate that the police may be lying = when they=20 claim that the decedent=E2=80=99s eyes have been removed from his body = and will be used=20 as evidence against the child because they contain the image of the last = person=20 the decedent saw before being killed=E2=80=93the child himself? Or can a = child be=20 expected to appreciate the absurdity when an interrogator claims to have = removed=20 his finger prints from the decedent=E2=80=99s sweat pants? Can a child = be expected to=20 understand the significance of every statement made during hours of = pressurized=20 questioning? Can a child stand up to relentless assertions by powerful = authority=20 figures claiming they already have proof the child is guilty, and = therefore the=20 interrogation is not about denying but only about explaining whether = they killed=20 out of malice or out of anger, or accident?
Does a child understand the inherent trap when an interrogator tells = him=E2=80=94as=20 was vividly demonstrated on a recent ABC 20/20 episode involving the=20 interrogation of 12 year old Anthony Harris in New Philadelphia, = Ohio=E2=80=94that he=20 has a choice between one of two options, either to admit he killed out = of anger=20 or that he murdered as a result of careful planning? (If he admits to = the=20 former, the interrogator tells the child that he can do something to = help, that=20 he will allow the child to go home, and that he will write a letter to = the judge=20 urging leniency.)
And, most significantly, does the child really believe that he has = the right=20 to refuse to answer a question until he consults with an attorney who = will be=20 appointed to represent him? Many children, particularly inner city ones, = do not=20 initially accept the interrogator=E2=80=99s offer to have an attorney = present because=20 attorneys are associated with doing bad things. Can a child be expected, = after=20 an hour of interrogation, to suddenly recall the offer of counsel and = demand to=20 speak to an attorney before answering the next question? Most adults can = not do=20 this!
Unsurprisingly, after it becomes clear that they admitted to murder, = the=20 faces of these children look like the proverbial cow in the corral who = only now=20 comprehends the slaughterhouse concept. To be sure, such pressurized = tactics are=20 effective in prompting confessions from the
mouths of guilty children. The problem is that they can also coerce=20 confessions
from innocent children. Law enforcement professionals face a = miserable
dilemma in their efforts to protect society from truly dangerous=20 children.
Nevertheless, court sanctioned inter viewing techniques can sabotage = the
search for truth. What does research tell us about children=E2=80=99s = thinking during=20 interrogation?
To those of us who study young children=E2=80=99s intellectual = development, one of=20 its enigmas is their ability to reason like adults about emotionally = neutral=20 issues, while displaying immature thinking when con fronted with = emotionally=20 charged situations. Children actually believe interrogators who tell = them that=20 if they admit they murdered, they can go home. Most adults would = immediately=20 distrust such a statement. But a child desperate to go home often does = not. When=20 asked if he believed he would be allowed to go home if he signed a = murder=20 confession, 12 year old Anthony Harris said, "Yes, I did." The fear and=20 lacerating loneliness that comes with interrogation by a highly trained=20 professional leads to both true and false confessions. Children are not = the=20 equals of their adult examiners: We must not delude ourselves that a = child will=20 never admit to something he did not do.
Can high pressure tactics be justified because they may be the most = effective=20 way to get a reluctant child to admit a heinous crime? Perhaps, if the = child=20 indeed committed the crime. But what if the child did not? This approach = is akin=20 to burning down the barn to roast the pig. Transcripts of children = interrogated=20 without counsel show they often do not realize what they were being = asked or=20 what they were admitting to. Like men tally ill and feeble minded = adults,=20 children represent a special class of defendants who absolutely require=20 representation by counsel. It is unreasonable to expect children to = withstand=20 periods of confinement and pressurized questioning, after being told = repeatedly=20 that they are lying when they profess their innocence and that witnesses = are=20 ready to testify against them. How can we guard against inappropriate=20 interrogatory techniques? How can we ensure that children are dealt with = in a=20 developmentally appropriate manner? Key to such goals is the electronic=20 preservation of the child=E2=80=99s entire interrogation. Interviews are = only rarely=20 recorded; interviewers customarily testify on the basis of their memory, = aided=20 by notes. However, my research demonstrates that interviewers cannot = accurately=20 remember what children tell them. Interviewers often omit important = exculpatory=20 information, reverse the voice of who said what, and alter the gist of = the=20 child=E2=80=99s statements.
Judges are often shocked when I show them what a child actually told = an inter=20 viewer compared with what the inter viewer claims the child = said=E2=80=94even when the=20 interviewer was warned to take careful notes because her or his memory = would be=20 tested. It is not enough for an interviewer to remember that the child = disclosed=20 guilt: Judges need to know the "atmospherics" of the interview, how long = it=20 lasted, how many times the child denied guilt before admitting it, and = how many=20 threats, bribes, or other inducements were employed to coax the = child=E2=80=99s=20 disclosure. No American should endorse the sentiment, "Anything worth = fighting=20 for is worth fighting dirty for." But isn=E2=80=99t that what we are = doing when we=20 detain young children for hours, unanchored, loosed in a world of = powerful=20 adults promising, cajoling, threatening, insulting, and intermittently = touting=20 friendship? The stakes are too high to permit children to waive the = right to=20 counsel or to remain silent. Children as young as 11 can be sentenced to = life in=20 prison in some states. Across the country, 13 year olds can be tried as = adults.=20 Children as young as 8 can be asked to waive their Miranda rights. In = some=20 states, 16 year olds can be sentenced to death. All children accused of = serious=20 crimes must be represented by counsel. And all interviews=E2=80=94not = merely the final=20 one in which a child makes a guilty admission=E2=80=94 must be = electronically preserved.=20 Only then can judges decide if a child=E2=80=99s confession developed = appropriately.=20 Last year, we celebrated the 100th anniversary of the establishment of = the first=20 children=E2=80=99s court in the United States. As we enter a second = century of=20 recognition that children need special protections, it is ironic that we = are=20 witnessing a chilling devolution of children=E2=80=99s rights.
Stephen J. Ceci is the Helen L. Carr Professor of Developmental = Psychology at=20 Cornell University. He co authored (with Maggie Bruck) the 1995 book, = Jeopardy=20 in the Courtroom: A Scientific Analysis of Children=E2=80=99s Testimony. = Ceci=E2=80=99s many=20 honors include an NIH Research Career Scientist award and a Senior = Fullbright=20 Hayes fellowship. He is the author of more than 300 articles, chapters, = and=20 books, mostly in the area of child intellectual development. Ceci serves = on the=20 editorial board of several scholarly journals.