Western State University Law Review

Volume 41 | Issue 1 Article 2

10-1-2013

Children under Pressure: The Problem of JuvenileFalse Confessions and Potential SolutionsLaurel LaMontagne

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Recommended CitationLaurel LaMontagne, Children under Pressure: The Problem of Juvenile False Confessions and Potential Solutions, 41 W. St. U. L. Rev.(2013).Available at: http://lawscl.org/wslawreview/vol41/iss1/2

Children Under Pressure:The Problem of Juvenile False Confessions and

Potential Solutions

Laurel LaMontagne*

I. INTRODUCTION ......................................................... 30II. THE FALSE CONFESSION ............................................ 32

A . C lassification .................................................. 32B. Proving a Confession is False ................................... 33

III. WHY CONFESS? ANATOMICAL CHANGES IN THE DEVELOPING BRAIN

AND CONSEQUENT BEHAVIOR ........................................... 34IV. EXPERIMENTAL PSYCHOLOGY STUDIES .................................. 36

V. OUTSIDE THE LAB: Two POINTS OF VULNERABILITY IN THE

INTERROGATION PROCESS ............................................... 39A. W aiver of M iranda Rights ...................................... 39B . The Interrogation ............................................... 42

VI. ETHICAL CONSIDERATIONS .............................................. 45A. Deceptive Interrogation Practices and the Police Code of Ethics .. 45B. False Confessions and Prosecutorial Misconduct ................. 48

VII. PROCEDURAL SAFEGUARDS AND POTENTIAL REFORMS .................. 50

A. Juvenile Interrogations Must Be Electronically Recorded ......... 50B. Juveniles Cannot Waive Their Miranda Rights without an Attorney

P resent ........................................................ 52C. Miranda Warnings Must be Rewritten in Developmentally-

Appropriate Language .......................................... 53D. Juveniles Cannot be Subject to the Same Coercive Interrogation

Techniques as Adults ........................................... 54E. Juvenile Defense Attorneys Need the Opportunity Present Expert

Testimony on False Confessions ................................ 55F. Technology Could Eventually Improve the Accuracy of Juvenile

Interrogations .................................................. 56V III. CONCLUSION ....................................................... 56

"Only a child who is very hardened in false-hood, very fearful ofconsequences, or else truthful, will reiterate 'it is so anyway,' even to tears in the faceof evidence he cannot rebut, while others will confess or simulate a false confession asthe easiest issue."'

* J.D. Candidate, May 2014, UCLA School of Law. I would like to thank Professor Jyoti Nanda for her

guidance on this research.1. Edward L. Thomdike, Notes on Child Study, 8 COLUM. U. CONTRIBUTIONS TO PHIL., PSYCHOL. &

EDUC. 205, 322 (1901) (quoting G.S. Hall).

Western State University Law Review

I. INTRODUCTION

On September 24, 1827, a twelve-year-old African American boy wasworking in a cornfield as a servant for Joshua Bunn. 2 In the afternoon, Bunn'sneighbor, Catharine Beakes, was murdered.' The boy denied knowing anything aboutthe murder, but was sent to prison based on his proximity to the crime scene.4 Bunntestified that the boy was "passionate, mischievous, insolent, but does not bearmalice[,]" indicating his belief that the boy had not murdered his neighbor.5 After fivemonths in prison filled with taunts and accusations, the boy confessed. 6 Before heconfessed, he was falsely told that evidence corroborating his guilt existed. 7 In lessthan three hours, a jury convicted him of murder and sentenced him to death.8 Thecourt stated, "If a naked confession [lacking corroborating evidence] of this kind issufficient to convict an adult, it is sufficient to convict defendant."9 The court furtherreasoned that the boy's age made the jury "more cautious in admitting the confessions"and more likely "to resolve [their] doubts in his favour."' 0 Although State v. Guild isalmost 200 years old, it bears shocking resemblance to the way in which juvenileconfessions are treated today.

In 1993, three eight-year old boys were brutally murdered in West Memphis,Arkansas." A month after the murders, police spent more than seven hoursinterrogating seventeen-year-old Jessie Misskelley, Jr., who had an IQ of seventy-two,borderline for mental retardation.' 2 Misskelley confessed to the crime, while alsoimplicating sixteen-year-old Jason Baldwin and eighteen-year-old Damien Echols.13

Misskelley's confession, however, contained factual inaccuracies with regard to thetime of death and the method used to bind the victims. 14 Prosecutors, however, arguedthat the three teenagers bound, stabbed, and sexually abused the three victims as partof a satanic ritual. 15 In 2011, after almost a decade in jail, the three suspects enteredAlford pleas 16, and were freed after new forensic evidence cast their guilt into doubt.' 7

2. State v. Guild, 10 N.J.L 163, 164 (1828).3. Id.4. Id. at 188.5. Id. at 170.6. Id. at 179.7. Id. at 173.8. Guild, 10 N.J.L at 175.9. Id. at 177.10. Id. at 190.II. Jim Avila et al., Father of Victim to Convicted Killer: 'I'm Here for You', ABC NEws, (Nov. 1,

2007), http://abcnews.go.com/TheLaw/story?id=3808760&page=l &singlePage=true.12. Chelsea Silverstein, Revisiting a (Terribly) Wrongful Confession, LEGAL As SHE IS SPOKE Bi-OG,

(Feb. 24, 2012), http://www.lasisblog.comi/2012/02/24/revisiting-a-terribly-wrongful-confession/.13. See Avila et al., supra note II.14. Id.15. Id.16. An Alford plea is a plea in which the defendant pleads guilty in court, but does not admit the crime

and maintains his innocence. See BLACK'S LAw DICrIONARY 83 (9th ed. 2009).17. See Avila et al., supra note I I.

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On January 21, 1998, the Crowe family of Escondido, California, awoke tofind twelve-year-old Stephanie Crowe dead on her bedroom floor, covered in blood. ' 8

The night Stephanie had been killed, a police officer had pulled up in the Crowefamily driveway after a neighbor phoned to report seeing a transient man knocking ondoors and looking for a young girl.' 9 The officer watched as an open door next to thegarage was closed, and at 9:58 p.m., he reported that the transient had left the scene.20

The next day, police found the transient, Richard Tuite, and quickly fingerprinted himat the station. 21 They assumed his record was clean, and failed to run a backgroundcheck that would have revealed multiple arrests and his history of mental illness.22

Police discounted Tuite as a suspect; they were already focused on Stephanie'sfourteen-year-old brother, Michael.2 3 During Michael's interrogation, police used lies,false promises, and isolation techniques to extract a confession. 24 Michael finallyrelented to intense interrogation efforts, confessing to Stephanie's murder and tellingthe police, "I'm only saying this because it's what you want to hear. '25 As theinterrogation progressed further, the content of Michael's statements changed,reflecting his belief that he was actually guilty of Stephanie's murder: "I'm not surehow I did it. All I know is I did it. ' '26 On the eve of Michael's trial, DNA tests wereconducted on the clothes of Richard Raymond Tuite, the transient who had been seenwandering the Crowe neighborhood the day of Stephanie's murder, indicating that hewas the actual murderer.27 After being released, Crowe explained his false confession,stating, "Eventually, they wear you down to where you don't even trust yourself. Youcan't trust your memory anymore. '

"28

From the outside, it may be hard to understand why these juveniles confessedto a crime they clearly did not commit.29 Yet these cases, coupled with new research

18. Rachael Bell, Coerced False Confessions During Police Interrogations, TRuTV CRIME LIBRARY,http://www.trutv.com library/crime/notorious-murders/notguilty/coerced-confessions/6.html, (lastvisited Jan. 5, 2014).

19. Courtney L. Davenport, Police Wrongfully Detain Teen for Sister's Murder, 48-JAN TRIAl 54(2012) (reviewing Crowe v. Cnty. of San Diego, No. 3:99-cv-00241 (S.D. Cal. Oct. 21, 2011)).

20. Id.21. Id.22. Id.23. Id.24. See Bell, supra note 18.25. Kim Cantrell, The Murder of Stephanie Crowe and the Forced False Confession of Three Teenage

Boys, TRUE CRIME ZINE (July 5, 2012), http://truecrimezine.com/michael-crowe-false-confession/.26. Mark Sauer & John Wilkins, Haunting Questions: The Stephanie Crowe Murder Case,

SIGNONSANDIEGO.COM, (May 12, 1999), http://ww.uniontrib.com/news/reports/crowe/crowe2.html.27. See Bell, supra note 18.28. Steven A. Drizin, Interrogation Gone Bad: Juvenile False Confessions in the Post-DNA Age,

NORTHWESTERN LAW, http://nij.gov/topics/courts/indigent-defense/Documents/drizin.pdf (lastvisited Jan. 5, 2014).

29. See Del Q. Wilber, Teen Tormented by an Erroneous Charge of Murder, BALTIMORE SUN (Apr. 23,2001), http://articles.baltimoresun.com/2001-04-23/news/0104230226 1 state-police-elkton-nightmares (discussing the 1998 case of sixteen-year old special needs student Allen Chesnet, whowas targeted as a suspect in the gruesome murder of his fifty-two-year old neighbor Beulah GayHonaker. Police lied to Allen and told him that his DNA had been found at the crime scene, and fedhim details about the crime. Chesnet came to believe that if he told police what they wanted to hear,they would let him go. Eventually, Allen confessed and was charged with murder, ultimatelyspending six months in jail, until police found the real killer, Christopher Thomas.).

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that will be discussed in detail, show that juvenile false confessions are a serious andsignificant problem. Part 1I will describe types of false confessions and how aconfession can be proven false. Part HI will detail changes in the brain that influencejuvenile behavior. Part IV will discuss experimental psychology studies that provideevidence for the problem of juvenile false confessions. Part V will detail proceduralpoints of vulnerability in regard to false confessions, focusing on waiver of Mirandarights and the interrogation process. Part VI will detail ethical considerations facinglaw enforcement and prosecutors, while Part VII will discuss procedural safeguardsand potential reforms for addressing the problem of juvenile false confessions.

II. THE FALSE CONFESSION

A. Classification

Using theories of social influence, Kassin and Wrightsman in 1985 introduceda classification scheme to distinguish between three types of false confessions: (1)voluntary; (2) coerced-compliant; and (3) coerced-internalized.30 In a voluntary falseconfession, the juvenile gives incriminating statements without external pressure.31

Voluntary false confessions are made for a variety of reasons like a desire for attentionor fame, an attempt to protect the real offender, or difficulty distinguishing fantasy andreality.32 In a coerced-compliant confession, the juvenile makes the confession duringthe pressure of a police interrogation, typically retracting the confession after theinterrogation has ended.33 Finally, in a coerced-internalized confession, the vulnerablejuvenile starts to believe that he is actually responsible for the crime, like MichaelCrowe.34 The latter two types of false confessions can be attributed to the pressures(physical custody, isolation, confrontation, despair) of the interrogation processcoupled with the juvenile's hope that compliance may lead to an immediateinstrumental gain (going home, ending the interview). 35

30. THE PSYCHOLOGY OF EVIDENCE ANID TRIAL PROCEDURE 76-77 (Saul M. Kassin & Lawrence S.Wrightsman, eds., 1985).

31. Id.32. See Michael S. Perry, Tyler Edmonds, NAT'L RE.GISTRY OF- EXONERATIONS, http://www.law.umich.

edu/special/exoneration/Pages/casedetail.aspx?caseid=3200 (last visited Nov. 2, 2013) (describingthe case of Tyler Edmonds, a thirteen-year-old who confessed to shooting his half-sister's husbandin order to protect her from the death penalty); see also Jon F. Sigurdsson & Gisli H. Gudjonsson,Psychological Characteristics of 'False Confessors'. A Study Among Icelandic Prison Inmates andJuvenile Offenders, 20(3) PERS INDIv DII'. 321, 329 (1996); see also Drizin & Leo, supra note 28(describing their study examining 125 false confessions made between 1971 and 2001, 63% ofwhich were made by individuals under the age of 25).

33. See THE PSYCHOLOGY O1 EVI)ENCE AND TRIAL PROCEDURFE, supra note 30, at 78 (discussing the1977 case of Peter Reilly, an eighteen-year-old who reported finding his mother murdered, andeventually came to believe that he was responsible for her death ("Well, it really looks like I did it",despite physical evidence that exonerated him after two years in prison); Reilly v. Leonard, 459 F.Supp. 291 (D. Conn. 1978).

34. THE PSYCHOLOGY O1 EVIDENCE AND TRIAL PROCEDURE, supra note 30, at 78.35. Id. at 77-78.

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In 1997, Leo and Ofshe extended this model, distinguishing between coerced-compliant and stress-compliant false confessions. 36 In both types of confessions, thejuvenile knowingly offers a false confession. 37 A coerced-complaint false confessionis offered in response to coercive techniques like threats or promises aimed atovercoming the juvenile's will.38 For example, an interrogator might tell a fourteen-year-old that once he confesses, he will be able go home or get something to eat.3 9 Inthis case, the juvenile erroneously believes that the short-term benefits of confessingoutweigh the uncertain long-term CoStS, 40 or as Gisli Gudjonsson puts it, "the perceivedimmediate gains outweigh the perceived and uncertain long-term consequences. ' '41 Astress-compliant false confession, conversely, is offered in response to extensivemental or physical stressors.42 In this situation, the police interrogator uses aconfrontational style to maximize the juvenile's stress and prevent him from declaringhis innocence.

43

B. Proving a Confession is False

False confessions can be disproved in four ways: (1) the juvenile confesses toa crime that did not happen (i.e. murder victim found alive.); (2) it would have beenphysically impossible for the juvenile to commit the crime (i.e. he was in another stateat the time.); (3) the real perpetrator can be identified and his guilt established; or (4)when scientific evidence, like DNA, establishes the juvenile's innocence. 44

Unfortunately, research suggests that both laypeople and police have difficultyrecognizing a false confession. 45 Researchers taped prison inmates making twoconfessions - one confession to their actual crime, and a false confession to a crimethey did not commit.46 Laypeople and police had difficulty determining which crimethat individual had actually committed, with accuracy rates ranging from 42% to 64%,highlighting the inherent difficulty a juror faces in determining whether or not avideotaped confession is accurate. 47 Overall, common sense behavior cues, like the

36. Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice andIrrational Action, 74 Di;Nv. U. L. Riv. 979, 997 (1997).

37. Id. at 997-98.38. Id. at 998-99.39. Id. at 1103.40. Id. at 985.41. GisL- H. GUDJONSSON, THE PSYCHOLOGY OF INTERROGATION AND CONFFSSIONS: A HANDBOOK 196

(Graham Davies & Ray Bull eds., 2003), available at http://cryptome.org/2013/01/aaron-swartz/lnterrogations-and-Confessions-Handbook.pdf.

42. See Ofshe & Leo, supra note 36, at 998.43. Id.44. Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 LAW &

HUM. BEHAV. 3, 5 (2010), available at http://web.williams.edu/Psychology/Faculty/Kassin/files/White%20Paper%20-%20LHB%20(2010).pdf.

45. Saul M. Kassin et al., "I'd Know a False Confession if I Saw One": A Comparative Study ofCollege Students and Police Investigators, 29 LAW & HUM. BEHAV. 211, 212 (2005), available athttp://digitalcommons.utep.edu/cgi/viewcontent.cgi?article= I 022&context=christianmeissner.

46. Id. at 212-13.47. Id. at 216.

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suspect's posture or lack of eye contact, are not good indications of whether a suspectis telling the truth or a lie. 48

Further, research suggests that jurors presented with a false confession areunable to discount it when reaching a verdict.49 Although subjects will say that a falseconfession did not influence their verdict, the statistics suggest otherwise. Mock jurorsin the control group convicted an individual 19% of the time when no confession wasoffered.50 Another group of jurors were presented with the same evidence as thecontrol group and a coerced confession that they were instructed to disregard - thisgroup convicted the same individual from 44% (high pressure interrogation setting) to50% (low pressure interrogation setting) of the time.51

Criminology statistics also reinforce the notion that jurors accept coercedconfessions - in one sample, 81% of innocent individuals who had made a falseconfession and pled not guilty were convicted by juries. 52 Per Drizin and Leo'sreasoning, false confessions are "'inherently prejudicial and highly damaging to adefendant, even if it is the product of coercive interrogation, even if it is supported byno other evidence, and even if it is ultimately proven false beyond any reasonabledoubt." 5 3 Further, the confession is likely to be treated by the jury as more probativeof guilt than any other piece of evidence.54 Jurors believe that a defendant will notmake a confession that runs counter to his interest unless that confession is true.Simply stated, "[t]he idea that an individual would [falsely] confess to a crime,particularly a horrific crime such as murder or rape, without being subject to physicaltorture, runs counter to the intuition of most people. ' 55 Why, then, would a juvenileconfess to something they did not do?

III. WHY CONFESS? ANATOMICAL CHANGES IN THE DEVELOPING BRAINAND CONSEQUENT BEHAVIOR

Juvenile brains are far less developed than adult brains, and this developmenthas a role in the decision-making process. 56 The prefrontal cortex is in charge of thebrain's executive functions, and is responsible for decision-making, planning, and

48. Bella M. DePaulo et al., Cues to Deception, 129 PSYCHOL. BULL. 74, 97 (2003).49. Saul M. Kassin & Holly Sukel, Coerced Confessions and the Jury: An Experimental Test of the

"Harmless Error" Rule, 21 LAW & HUM. BEHAV. 27, 39 (1997), available at http://web.williams.edu/Psychology/Faculty/Kassin/files/kassinsukel 1997.pdf.

50. Id.51. Id.52. See Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World,

82 N.C. L. REV. 891, 963 (2004).53. Id. at 961.54. See Ofshe & Leo, supra note 36, at 984.55. Jacqueline McMurtrie, The Role of the Social Sciences in Preventing Wrongful Convictions, 42 AM.

CRIM. L. REV. 1271, 1280 (2005), quoted in Danielle Chojnacki et al., An Empirical Basis for theAdmission of Expert Testimony on False Confessions, 40 ARIZ. ST. L.J. 1, 5 (2008).

56. Sarah-Jayne Blakemore & Suparna Choudhury, Development of the Adolescent Brain: Implicationsfor Executive Function and Social Cognition, 47 J. CHILD PSYCHOL. & PSYCHIATRY 296, 301(2006); see also Adam Ortiz, Cruel and Unusual Punishment: The Juvenile Death Penalty:Adolescence, Brain Development and Legal Culpability, 2004 A.B.A. Juv. JUST. CENER l.

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personality expression.57 Research on post-mortem brains and MRI studies haveconfirmed that this part of the brain develops last, well beyond the early childhoodyears. 58 During this time, white matter increases in the frontal lobe - this increase inwhite matter can be attributed to a process called myelination. 59 During myelination, awhite, fatty, insulating material known as myelin wraps around the axon of theneuron. 60 Axons are the parts of the neurons that conduct an electrical impulse, knownas an action potential. 61 The action potential, in turn, permits the neuron to release achemical signal known as a neurotransmitter (like serotonin, dopamine, or glutamate)that has effects on various brain functions like cognition, learning, and short-termmemory. 62 As these processes become more efficient, the developing adolescentexhibits greater control over thoughts and behavior. 63

During adolescence, the network of connections between neurons alsochanges. Early in postnatal development, an individual develops an excess of synapticconnections ("synaptogenesis") that facilitate communication between neurons. 64 Asthe individual enters adolescence, synaptic density begins to decrease in a processknown as "pruning. '65 During this process, frequently used connections arestrengthened, whereas infrequently used connections are eliminated. 66 As theprefrontal cortex continues to mature, the adolescent's control over executive functionsincreases. 67 MRI studies have also shown that connections in the corpus callosum, thebridge between the right and left hemispheres, also increase during puberty, providingfor increased decision-making skills. 68

Together, myelination and pruning result in a more efficient brain that canrespond appropriately to the external environment. As these brain structures are notfully developed, teenagers may be able to recognize that an activity is dangerous, butlack the ability to put the brakes on their behavior. Consequently, juveniles are moreprone to risky behavior than adult, and often act impulsively. Moreover, juveniles areless likely to inhibit their emotional and physical responses, and think critically about a

57. Primate Brains Follow Predictable Developmental Pattern, SCIENCEDAILY (Oct. 8, 2013), http://www.sciencedaily.com/releases/2013/10/131008102559.htm.

58. Jay D. Aronson, Brain Imaging, Culpability and the Juvenile Death Penalty, 13 PSYCHOL. Pu13.Po'y & L. 115, 121 (2007).

59. Jay D. Aronson, Neuroscience and Juvenile Justice, 42 AKRON L. RIEV. 917, 922 (2009).

60. Id.61. The Brain: Understanding Neurobiology - Lesson 2: Neurons, Brain Chemistry, and

Neurotransmission, NAT' L INST. HEALTH, http://science.education.nih.gov/supplements/nih2/addiction/guide/lesson2- .htm.

62. Id.63. See Aronson, supra note 59, at 922-23.64. See P.R. Huttenlocher, Synaptic Density in Human Frontal Cortex: Developmental Changes and

Effects of Aging, 163 BRAIN RES. 195 (1979); see also P.R. Huttenlocher et al., Synaptogenesis inHuman Visual Cortex: Evidence for Synapse Elimination during Normal Development, 33NEUROSCIENCE LETIERS 252 (1982).

65. See Aronson, supra note 59, at 922-23.66. Id.67. See Blakemore & Choudhury, supra note 56, at 298, 301.68. Id.

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situation before taking action. 69 These immaturities make juveniles especially prone toinfluence in the decision-making process; consequently, they respond differently thanadults when it comes to waiver of Miranda rights and the interrogation process. Whenfaced with options in an interrogation, juveniles tend to act impulsively and prioritizean immediate outcome without balancing it against future consequences. According toSaul Kassin, "[f]or the myopic adolescent, confession may serve as an expedient wayout of a stressful situation. ' 70 Compounding this problem is the fact that most youthsin the juvenile justice system have psychological disorders or developmentaldisabilities.71 Thus, while a juvenile may have mature cognitive faculties, they aremade vulnerable by their psychosocial immaturities. As described by BuffieMerryman, "[j]uveniles tend to rely on emotions in decision making rather than thefrontal lobe, and often 'respond more strongly with gut response than they do withevaluating the consequences of what they're doing." 72

Recently, in Roper v. Simmons, the Supreme Court acknowledged thatjuveniles have a diminished capacity and that they are susceptible to immaturebehavior.73 The Court described juveniles as a vulnerable population, citing their"comparative lack of control over their immediate surroundings." 74 The Court'sopinion, delivered by Justice Kennedy, also cited "the scientific and sociologicalstudies" that tend to confirm "a lack of maturity and an underdeveloped sense ofresponsibility" amongst youth. 75 Justice Kennedy then went on to discuss howjuveniles are susceptible to outside pressures, and how they are not permitted to vote,serve on juries, or get married without parental consent.76 Despite the Court's recentacknowledgment in Roper of adolescence as a distinct developmental stage, courtshave not extended this parens patriae philosophy to juvenile waiver of Miranda rightsand the interrogation process.

IV. EXPERIMENTAL PSYCHOLOGY STUDIES

Experimental psychology studies have shown that false confessions can beinduced in a laboratory setting, providing another avenue to better understand the

69. Robert Weinstock & Christopher Thompson, Commentary: Ethics-Related Implications andNeurobiological Correlates of False Confessions in Juveniles, 37 J. Am. Acad. Psychiatry L. 344,346 (2009), available at http://www.jaapl.org/content/37/3/344.full.pdf.

70. Saul M. Kassin, False Confessions: Causes, Consequences, and Implications for Reform, 17CURRENT DIREcTIONS IN PSYCHOL. Sci. 249, 251 (2008), available at http://web.williams.edu/Psychology/Faculty/Kassin/files/Kassin%20(2008)%20-%20APS%20CD.pdf.

71. Allison D. Redlich, Double Jeopardy in the Interrogation Room: Young Age and Mental Illness, 62AM. PSYCHOL. 609 (2007).

72. Buffie B. Merryman, Arguments Against Use of the Reid Technique for Juvenile Interrogations, 10COMM. L. REv. 16, 19 (2010).

73. Roper v. Simmons, 543 U.S. 551, 570 (2005) (holding the death penalty unconstitutional for crimescommitted as a juvenile).

74. Id.75. Id. at 569.76. Id.

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dynamics of what goes on in a closed-door police interrogation. 77 In 1996, Kassin andKiechel conducted a study in which college students engaged in a computer task (a"reaction-time study") and were told to not hit the ALT-key as this would cause thecomputer to crash and result in data loss.7 8 In one set-up, students had to type rapidly;in another condition, students typed at a more reasonable pace.79 Experimenters alsovaried the use of false incriminating evidence by having one condition in which aconfederate told the experimenter that they witnessed the subject hit the ALT-key, andanother condition in which the confederate told the experimenter that they had notwitnessed anything.80 Students in the fast-pace/confederate witness condition allconfessed to hitting the key and causing the computer to crash when asked by theexperimenter.8' Across conditions, 69% of the students were willing to sign astatement saying they were responsible for the computer crash and the resulting loss ofdata.82 Thus, although a high percentage of all students demonstrated compliantbehavior, this percentage was markedly increased amongst students in the fast-pacedcondition who were also offered fabricated evidence of their guilt by the confederate. 83

Here, the researchers concluded "that the presentation of false incriminating evidence- an interrogation ploy that is common among the police and sanctioned by manycourts - can induce people to internalize blame for outcomes they did not produce. 84

In a later study, Redlich and Goodman investigated the influence of age onfalse confessions. 85 Using Kassin and Kiechel's experimental set-up, they examinedthree age groups: twelve to thirteen year olds, fifteen to sixteen year olds, and collegestudents. 86 In half of the situations, the experimenter left the room and returned with aprintout of all the keys that had been supposedly struck during the trial, providing thesubjects with further evidence of their guilt.87 Subjects were then asked to sign aconfession stating that they had pressed the ALT-key, and that they would return to thelab and spend ten hours reentering all the lost data. 88 Overall, the younger participantswere significantly more likely to sign the confession - 78% of the twelve to thirteenyear olds signed, 72% of the fifteen to sixteen year olds signed, and 59% of the collegestudents signed. 89 This age discrepancy was exacerbated when the experiments lookedat just the experimental groups who had been shown the false printouts confirming

77. Saul M. Kassin & Katherine L. Kiechel, The Social Psychology of False Confessions: Compliance,Internalization, and Confabulation, 7 PSYCHOL. Sci. 125 (May 1996), available at http://web.williams.edulPsychology/Faculty/Kassin/files/kassin kiechelI 996.pdf.

78. Id. at 126.79. Id.80. Id.81. Id. at 127.82. Id.83. Kassin & Kiechel, 7 PSYCHOL. Sci. at 127.84. Id.85. See generally Allison D. Redlich & Gail S. Goodman, Taking Responsibility for an Act Not

Committed: The Influence of Age and Suggestibility, 27 LAW & HUM. BEHAV. 141 (1996).86. Id. at 144.87. Id. at 146.88. Id. at 146-47.89. Id. at 148.

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their guilt.90 Here, 73% of the twelve to thirteen year old signed, 88% of the fifteen tosixteen year olds signed, and 50% of the college students signed.91

A follow-up study by Horselenberg, Merckelbach, and Josephs in 1996 soughtto increase the immediate and explicit negative consequences of making a falseconfession. 92 Replicating the same scenario, researchers told students that they hadobserved them hit the SHIFT-key, and that they were responsible for the loss ofimportant data.93 The researchers then told the students that, because of this behavior,they would lose 80% of their financial fee for participation. 94 The experimenter thenleft the room and asked students to think about what had happened and to sign a hand-written confession that they were responsible for the loss of data and would forfeitmost of their fee.95 82% of the participants signed the confession, while 58% exhibitedconfabulation, offering details about when, why, and how they hit the SHIFT-key. 96

In 2004, another similar paradigm was used to study false confessionsamongst an even younger population.97 Here, fifty primary school children wereindividually instructed to perform tasks on a computer and avoid touching the SHIFT-key as it would crash the computer. 98 After a few minutes, the experimenter crashedthe computer, and entered the room, asking the child, "You pressed the SHIFT-key,didn't you?" and children who denied pressing this key were done with the study.99

Those children who falsely admitted to hitting the shift key were told that the sessionwould continue. 00 Next, a confederate entered, and asked the child what hadhappened to the computer.10 The confederate recorded what the student said, lookingto see if the child would confess and had internalized responsibility for the computercrash. 10 2 Overall, 36% of the children confessed falsely to hitting the Shift key, and89% of this subset demonstrated internalized responsibility through phrases like, "I hitthe SHIFT-key and then the computer crashed."' 1 3 These children confessed evenwhen the confederate's statement was the only evidence of their guilt, once againdemonstrating the suggestibility associated with youth. 0 4

Although all of these studies took place in a lab and did not involve a crime,they show that juveniles are extremely willing to comply with authority figures, withor without false incriminating evidence. They also show that even in an out-of-

90. Id.91. Redlich & Goodman, 27 LAW & HUM. BEHAV. at 148.92. See generally Robert Horselenberg et al., Individual Differences and False Confessions: A

Conceptual Replication of Kassin and Kiechel, 9 PSYCHOL., CRIME & L. 1, (2003).93. Id. at 5.94. Id.95. Id.96. Id.97. See generally Ingrid Candel et al., "I Hit the Shift-Key and then the Computer Crashed": Children

and False Admissions, 38 PERSONALITY & INDIVIDUAL D1iFERENCES, 1381 (2005).98. Id. at 1383-84.99. Id. at 1384.100. Id.101. Id.102. Id.103. Candel et al., 38 PERSONALITY & INDIVIDUAL DIFImERENCIEs at 1384-85.104. Id. at 1385.

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custody setting with far less at stake, juveniles can easily be manipulated intoconfessing falsely.

V. OUTSIDE THE LAB: Two POINTS OF VULNERABILITY IN THEINTERROGATION PROCESS

The behaviors observed in experimental psychology studies closely resemblethose observed in real world police interrogations. Juveniles are easily manipulated byauthority figures who take advantage of their vulnerabilities, getting juveniles to waivetheir Miranda rights and submit to a highly coercive interrogation.

A. Waiver of Miranda Rights

False confessions are likely to occur once juveniles waive their Miranda

rights, a Fifth Amendment procedural "protection" extended to them by In re Gault.10 5

A U.S. Department of Justice study revealed that in some jurisdictions, 80-90% ofjuveniles waive their Miranda rights and move forward in court proceedings withoutthe presence of an attorney. 10 6

A typical Miranda warning is read when a suspect is in custody, and itincludes the right to remain silent, the right to have an attorney present during policeinterrogation, and the right to end questioning. 0 7 Miranda warnings are oftendelivered in a way that affords a defendant the least Constitutional protection:

[P]olice routinely deliver the Miranda warnings in a perfunctory toneof voice and ritualistic behavioral manner, effectively conveying thatthese warnings are little more than a bureaucratic triviality .... Whileit may be inevitable that police will deliver Miranda warnings lessthan enthusiastically, some investigators very consciously recite thewarnings in a trivializing manner so as to maximize the likelihood ofeliciting a waiver. It is thus not too surprising that police are sogenerally successful in obtaining waivers.10 8

105. In re Gault, 387 U.S. 1, 41 (1967).106. Judith B. Jones, Access to Counsel, Juv. JUST. Buii. (U.S. Dep't of Just., Off. of Juv. Just. &

Delinq. Prevention, Washington, D.C.), June 2004, at 2, available at https://www.ncjrs.gov/pdffiles l/ojjdp/204063.pdf.

107. What are your Miranda Rights?, MIRANDAWARNING.ORG, http://www.mirandawarning.org/whatareyourmirandarights.html (last visited Jan. 1, 2014); see also Presumed Guilty: Know Your Rights,PBS.ORG, http://www.pbs.org/kqed/presumedguilty/6.0.0.html (last visited Jan. 1, 2014) (A typicalMiranda warning reads: "You have the right to remain silent. Anything you say or do may be usedagainst you in a court of law. You have the right to consult an attorney before speaking to the policeand to have an attorney present during questioning now or in the future. If you cannot afford anattorney, one will be appointed for you before any questioning, if you wish. If you decide to answerany questions now, without an attorney present, you will still have the right to stop answering at anytime until you talk to an attorney. Knowing and understanding your rights as I have explained themto you, are you willing to answer my questions without an attorney present?").

108. Richard A. Leo, From Coercion to Deception: The Changing Nature of Police Interrogation inAmerica, in THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING 65, 67 (Richard A. Leo & GeorgeC. Thomas, eds., Northeastern University Press 1998), available at http://books.google.com/books?id=D6J2jTOXCUMC&pg=PA345&lpg=PA345&dq=From+Coercion+to+Deception:+The+Changing+Nature+of+Police+lnterrogation+in+America+(I 992),&source=bl&ots=8uBRG4CD

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In order to be admissible as evidence, the court applies a "totality of thecircumstances" test' °9 that purportedly considers factors like the defendant's age,education, intelligence, background, experience, and mental capacity."10 JusticeFrankfurter described the difficulties in not having a bright line rule for determiningwhether Miranda was voluntarily waived before an interrogation, stating, "No singlelitmus-paper test for constitutionally impermissible interrogation has been evolved."'Further, the Supreme Court has held that this "totality-of-the circumstances approachis adequate to determine whether there has been a waiver even where interrogation ofjuveniles is involved"'"12 because the test allows the court "to take into account thosespecial concerns that are present when young persons, often with limited experienceand education and with immature judgment, are involved."'" 13

Although judges can consider the age of the child in deciding if Miranda hasbeen waived, judges have a tendency to hold that any waiver was knowing andvoluntary. 114 According to Feld, judges apply the totality of the circumstances test,and "exclude only the most egregiously obtained confessions and then only on ahaphazard basis."'" 5 Holding a juvenile's waiver is made knowingly and voluntarilycontradicts empirical evidence. In a study examining Miranda comprehension,juveniles were "Mirandized" and asked what the warning meant. 1 6 None of thejuveniles understood a Miranda warning as meaning they could end policequestioning."17 This lack of comprehension is not surprising. To understand thestandard language in a Miranda warning, suspects need a reading level varyingbetween 6th and 10th grade, or higher." 8 This is above the literacy level of most ofthose arrested. 1 9 The National Adult Literacy Survey revealed that "70% of prisoninmates read at or below the sixth grade level,"'' 20 and that 20-70% of juveniles in

9R&sig=iPv eS8SZZ9qO6CvLJN37rwoO&hl=en&sa=X&ei=UD3LUpvKMovaoATSYLIBg&ved=OCGEQ6AEwBg#v=snippet&q=false%20physical%20evidence&f=false.

109. Miranda v. Arizona, 384 U.S. 436, 503 (1966).110. Fare v. Michael C., 442 U.S. 707, 725 (1979).I1l. Culombe v. Connecticut, 367 U.S. 568, 601 (1961) (plurality opinion).

112. See Fare, 442 U.S. at 725; see also J.D.B. v. North Carolina, 131 S.Ct. 2394 (2011) (holding that ajuvenile's age should be considered in deciding whether the juvenile was in custody and properly"Mirandized").

113. Fare, 442 U.S. at 725.114. Barry C. Feld, Criminalizing Juvenile Justice: Rules of Procedure for the Juvenile Court, 69 MINN.

L. Ri-v. 141, 176 (1984).115. Id.116. See Thomas Grisso, Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis, 68

CAL. L. Ri-v. 1134 (1980).117. Id. at 1152.118. Richard Rogers et al., Development and Initial Validation of the Miranda Vocabulary Scale, 33

LAW & HUM. BiHAV. 381, 386-388 (2009); see also Jeffrey L. Helms, Analysis of Miranda ReadingLevels Across Jurisdictions: Implications for Evaluating Waiver Competency, J. FORIENSICPSYCHOL. PRAc. 25, 29-34 (2003); see also Rogers et al., The Language of Miranda Warnings inAmerican Jurisdictions: A Replication and Vocabulary Analysis, 32 LAW & HuM. BEHAV. 124(2008).

119. See Rogers et al., supra note 118, at 132.120. See Allison D. Redlich, The Susceptibility of Juveniles to False Confessions and False Guilty Pleas,

62 RUTGERS L. Rjav. 943, 953 (2010), (citing Karl 0. Haigler, et. al., Literacy Behind Prison Walls:Profiles of the Prison Population from the National Adult Literacy Survey, NAIONAL CENTER FOR

2013 Juvenile False Confessions 41

delinquency proceedings are estimated to have learning disabilities (compared to about5% of the general population.) 121 Additionally, the sentences in Miranda warnings areusually long and syntactically complex, comprising the juvenile's ability tounderstand. 122 Concepts such as "appointment of counsel" and "the use of statementsagainst you" are not explained to juveniles, who lack the requisite backgroundknowledge. 123 Examining this comprehension, Grisso in 1980 found that 63.3% of thejuveniles (compared to 37.3% of adults) he surveyed misunderstood at least one keyword in the Miranda warning 24 - these key words included consult, attorney,interrogation, appoint, entitled, and right. 125 Some youth also believe that judges canpunish them for invoking the right to remain silent.12 6

In People v. Gonzalez, a confession was used in adult court to convict asixteen year-old boy of attempted first-degree murder. 127 The boy had an IQ of sixty-seven, 128 and was not able to read beyond a first grade level. 2 9 He told the court hedid not understand the Miranda rights the police had read to him, and that he hadinitialed the waiver so that the police would stop questioning him. 130

On appeal, the court applied a totality of the circumstances test to determinewhether the boy had knowingly waived his Miranda rights.' 3' The court stated,"mental deficiency of itself does not render a statement involuntary."'132 Then, thecourt proceeded to explain that the defendant, having the cognitive capacities of anine-year-old, did not offer any proof that he was unable to understand his rights. 33

They cited precedent in which juveniles with an IQ even lower than sixty-seven wereheld to knowingly waive their Miranda rights. 134

In addition to lacking the requisite comprehension skills, police often employcoercive tactics in getting juveniles to waive Miranda so that they can proceed with

EDUCATION STATISTICS, (U.S. Dep't. of Edu. Off. of Edu. Res. and Improvement), Oct. 1994, 20-23available at http://nces.ed.gov/pubs94/94102.pdf).

121. Id. (citing MALIKA CLOSSON & KENNETH M. ROGERS, EDUCATIONAL NFEI)S OF YOUTH IN THE

JUVENILE JUSTICE SYSTEM, IN THE MENTAL HEALTH NEI ES OF YOUNG OFFEjzNDERS: FORGING PATHSTOWARD RFINTEGRATION (Carol L. Kessler & Louis James Kraus eds., 2007).

122. See Rogers et al., supra note 118, at 134.123. Id. at 130; see also Gallegos v. Colorado, 370 U.S. 49, 54 (1962) (stating that "[A] 14-year-old boy,

no matter how sophisticated, is unlikely to have any conception of what will confront him when heis made accessible only to the police. That is to say, we deal with a person who is not equal to thepolice in knowledge and understanding of the consequences of the questions and answers beingrecorded and who is unable to know how to protect his own interests or how to get the benefits ofhis constitutional rights .. . .Without some adult protection against this inequality, a 14-year-oldboy would not be able to know, let alone assert, such constitutional rights as he had.").

124. See Grisso, supra note 116, at 1151-54.125. Id. at 1146.126. Id. at 1158 (describing a sample in which 61.8% of detained juveniles thought they could be

punished for maintaining their silence).127. People v. Gonzalez, 351 I11. App. 3d 192, 193-94 (2004).128. Id. at 199.129. Id. at 200.130. Id. at 198.131. Id. at 201.132. Id.133. Gonzalez, 351 111. App. 3d at 202.134. Id. at 202-03.

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the interrogation. Researcher Barry Feld looked at Minnesota interrogation records for

juveniles and found that 56% of the time, police did not give immediate Mirandawarnings. 135 Instead, the police interrogator attempted to establish a relationship withthe juvenile, encouraging them to tell the truth and "predispose the suspect to waiveher rights and talk with police." 136 Steven Drizin describes Miranda as "little morethan a speed-bump for officers when questioning adults and even less of an obstaclewhen interrogating juveniles."'' 37

Further, juveniles tend to believe in the accuracy of the criminal justicesystem. 138 Innocent people also believe that their innocence will be transparent, and

they are more willing to cooperate. 139 In one study, half of the subjects committed amock theft of $100.140 All of the subjects were then "arrested" and told of theirrights. 14 81% of subjects in the innocent condition were willing to sign a waiver andtalk with the experimenters, whereas only 36% of those in the guilty condition werewilling to sign this waiver. 142 The innocents then explained why they waived theirrights by stating that they had nothing to hide. 43 Consequently, the Miranda warningoften fails to protect innocent suspects, as they are most willing to talk with policewhen they did nothing wrong. 44

B. The Interrogation

Social psychology provides one lens through which to understand theinterrogation process. Stanley Milgram's 1974 research on obedience to authorityfigures demonstrates that individuals will perform acts averse to their conscience whenso instructed by an authority figure. 14 5 In this classic study, undergraduate subjectswere led to believe that they were administering a series of electric shocks to a student

in another room - 65% of the study participants went ahead in administering the final450-volt shock. 146 Milgram described the results of his study:

I set up a simple experiment at Yale University to test how much painan ordinary citizen would inflict on another person simply because he

135. Barry C. Feld, Juveniles' Competence to Exercise Miranda Rights: An Empirical Study of Policyand Practice, 91 MINN. L. RiLv. 26, 73-74 (2006).

136. Id. at 74.137. Steven A. Drizin, Are Juvenile Courts a Breeding Ground for Wrongful Convictions? 34 N. Ky. L.

REzv. 257, 266 (2007).138. See Saul M. Kassin, On the Psychology of Confessions: Does Innocence Put Innocents at Risk?, 60

AM. PSYCHOL. 215, 218 (2005), available at http://homepage.psy.utexas.edu/HomePage/Class/Psy394U/Bower/07%20False%20Memories/False%20Confessions/Kassin-Amer%20Psychologist.pdf.

139. Saul M. Kassin & Rebecca J. Norwick. Why People Waive their Miranda Rights: The Power ofInnocence, 28 LAW & HuM. BEHAV. 211, 218 (2004), available at www.innocenceproject.org/docs/WhyPeople-WaiveMiranda.pdf.

140. Id. at 213.141. Id.142. Id. at 215.143. Id. at 216.144. Id.145. Stanley Milgram, The Perils of Obedience, HARPER'S MAG. FOUND, Dec. 1973, at 62.146. Id.

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was ordered to by an experimental scientist. Stark authority was pittedagainst the subjects' strongest moral imperatives against hurtingothers, and, with the subjects' ears ringing with the screams of thevictims, authority won more often than not. The extreme willingnessof adults to go to almost any lengths on the command of an authorityconstitutes the chief finding of the study .... 147

Although Milgram's finding that individuals will engage in morally-reprehensible behavior at the request of authority is surprising, this type of behavior iseven more shocking when one considers an individual's willingness to take actionaversive to their own interests when so directed by an authority figure. Juveniles oftendemonstrate this type of compliance in an effort to appease an adult. Richard Leodescribed this behavior, "[Juveniles] tend to be immature, naively trusting of authority,acquiescent, and eager to please adult figures. They are thus predisposed to besubmissive when questioned by police."'148

In an interrogation, the authority figure is able to exact this type of compliancefrom a young suspect, using guilt presumptive tactics like psychologicalmanipulations, accusation, isolation, and confrontation. These are the same guilt-presumptive tactics are used on adults, 49 making juveniles particularly vulnerable tothe risk of making a false confession during the interrogation process. 150 ProfessorAndrew E. Taslitz describes this guilt-presumptive interrogation process:

The kid reacts with hostility and defensiveness. These reactions,combined with his powerless speech patterns, lead police to believe heis lying. They close off alternative theories, heightening the pressureon the kid about whose guilt they are now convinced. They make realevidence sound more inculpatory than it is, they deceive him intobelieving there is still more inculpatory evidence against him, theyappeal to his self-interest, and they hammer away at him for hours.Young, isolated, cut off from family and friends, fearful, and rightlyseeing no way out, he confesses. Falsely. 51

The Reid Technique, developed in the 1940's by John Reid and Fred Inbau, isone of the most popular interrogation techniques. 52 At first, the juvenile suspect isisolated in a small, private room and once the interrogator enters, he confronts the

147. Id.148. Richard A. Leo, False Confessions: Causes, Consequences, and Implications, 37 J. AM. ACAD.

PSYCHIATRY LAW, 332, 336 (2009).149. Jessica R. Meyer & N. Dickson Reppucci, Police Practices and Perceptions Regarding Juvenile

Interrogation and Interrogative Suggestibility, 25 BEHAV. Sci. & L. 757, 761 (2007).150. Saul M. Kassin, & Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature

& Issues, 5 PSYCHOL. ScI. IN THE PuB. INT. 5, 33 (2004); see also Redlich & Goodman, supra note85.

151. Andrew E. Taslitz, Wrongly Accused: Is Race a Factor in Convicting the Innocent?, 4 OHIO ST. J.CRIM. L. 121, 132 (2006).

152. See Kirk A.B. Newring & William O'Donohue, False Confessions and Influenced Witnesses, 4APPLIED PSYCHOL. IN CRIM. JUST. 81, 84 (2008) (discussing how the Reid Technique can be used ina laboratory setting to induce college students to falsely confess and even implicate their peers).

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suspect, telling the juvenile that he or she is guilty. 5 3 He bolsters his claim, often withmanufactured evidence of this guilt, 154 and refuses to accept the juvenile suspect'sdenial. The juvenile comes to believe in a worst-case scenario. 55 The interrogatorthen adopts a fagade of sympathy, minimizing the severity of the crime and providingthe juvenile with moral justifications for his actions and with statements like "I'veseen some prosecutors and judges take cooperation into account."'' 56 Now, the juvenilecomes to see confession as the most efficient means to escape the interrogationroom. 157

The first error the interrogator makes in employing the Reid technique isassuming that the juvenile is guilty based on behavioral cues like lack of eye-contact,slouching, chewing fingernails, or touching his or her nose. 158 Although the creatorsof the Reid Technique claim their process helps interrogators perceive deceptionaccurately 85% of the time, 59 other empirical studies have shown that the ReidTechnique may actually lower judgment accuracy.' 60 Per Kassin and Fong, "[T]heReid technique may not be effective-and, indeed, may be counterproductive-as amethod of distinguishing truth and deception."' 6' Other studies have shown thatinvestigators trained in using the Reid Technique are no more accurate than untrainedindividuals in detecting whether a suspect is lying. 62

In combination with the Reid technique, the interrogator may apply coercivetactics like depriving the suspect of food, sleep, or water, which ultimately inducefatigue and heighten suggestibility. 63 Conversely, they may also combine implicitpromises of leniency' 64 with threats of harsher punishment to encourage the juvenile'sconfession. An interrogator may also use role-playing in an attempt to appeal to thejuvenile's conscience:

153. Id.154. See Leo, supra note 108 (describing false physical evidence such as fingerprints or blood samples,

the testimony of a nonexistent eyewitness, fake polygraph test results, and staged lineups).155. See Newring & O'Donohue, supra note 152, at 85.156. Id.157. See Barry C. Feld, Police Interrogation of Juveniles: An Empirical Study of Policy and Practice, 97

J. CRIM. L. & CRIMONOLOGY 219, 316 (2006) (discussing how police get 85% of juvenile falseconfessions when interrogations last longer than six hours).

158. Saul M. Kassin, Expert Testimony on the Psychology of Confessions: A Pyramidal Framework ofthe Relevant Science, Apr. 17, 2007, available at http://web.williams.edu/Psychology/Faculty/Kassin/files/Borgida%2OFisk%20chapter%20pages.pdf.

159. Ed Sanow, The Reed Technique of Interviewing and Interrogation, LAW & ORDER (Nov. 2011),available at http://www.reid.com/pdfs/20111213.pdf.

160. Saul M. Kassin & Christina T. Fong, "I'm Innocent!": Effects of Training on Judgments of Truthand Deception in the Interrogation Room, 23 LAW & HUM. BEHAV. 499, 512 (1999), available athttp://web.williams.edu/PsychologyAFaculty/Kassin/files/kassin-fong__ 1999.pdf.

161. Id.162. Id. at 513.163. Danielle Chojnacki et al. An Empirical Basis for the Admission of Expert Testimony on False

Confessions, 40 Ariz. St. L.J. 1,9-13 (2008) available at http://www.cicchinilawoffice.com/uploads/asu-lawjoumal.pdf.

164. See Brain v. United States, 168 U.S. 532, 542 (1897) (holding that explicit promises of leniency areforbidden as a violation of due process).

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Interrogators routinely project sympathy, understanding, andcompassion in order to play the role of the suspect's friend, a brotheror father figure, or even to act as a therapeutic or religious counselor.The most well-known role interrogators may feign is, of course, thegood cop/bad cop routine, an act which may be contrived by a singleofficer. While playing one or more of these various roles, theinvestigator importunes- sometimes relentlessly- the suspect toconfess for the good of his case, for the good of his family, for thegood of society, or for the good of his conscience. These tactics aredeceptive insofar as they create the illusion of intimacy between thesuspect and the officer and misrepresent the adversarial nature ofcustodial interrogation. 165

In Miller v. Fenton, the police interrogator, Detective Boyce, went so far as totell the defendant:

You can see it Frank, you can feel it, you can feel it but you are notresponsible. This is what I'm trying to tell you, but you've got to comeforward and tell me. Don't, don't, don't let it eat you up, don't, don'tfight it. You've got to rectify it, Frank. We've got to get together onthis thing, or I, I mean really, you need help, you need proper help andyou know it, my God, you know, in God's name, you, you know it.You are not a criminal, you are not a criminal. 166

VI. ETHICAL CONSIDERATIONS

A. Deceptive Interrogation Practices and the Police Code of Ethics

In the United States, many police departments subscribe to a code of ethicsthat outlines standards of conduct and agency values. 67 A typical code lists"protect[ing] the innocent against deception," and "the weak against oppression orintimidation" as an obligation of law enforcement. 168 Although the FifthAmendment's due process clause condemns obtaining confessions through the use ofcoercion,169 police officers continue to employ deceptive interrogation techniques in aneffort to exact compliance from a juvenile subject.

In the past, the Supreme Court afforded juveniles greater protection from thesedeceptive interrogation techniques. In Haley v. Ohio170 the Supreme Court recognizedthat the confession of a fifteen-year-old questioned under highly coercivecircumstances should be suppressed:

165. See Leo, supra note 108, at 68.166. Miller v. Fenton, 796 F.2d 598, 636 (1986).167. Law Enforcement Code of Ethics, available at http://www.maine.gov/dps/mcja/docs/law-

enforcementcode-of ethics.pdf (last visited Nov. 2, 2013).168. Id.169. See Brown v. State of Mississippi, 297 U.S. 278, 280 (1936).170. Haley v. State of Ohio, 332 U.S. 596 (1948).

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A 15-year-old lad, questioned through the dead of night by relays ofpolice, is a ready victim of the inquisition. Mature men possibly mightstand the ordeal from midnight to 5 a.m. But we cannot believe that alad of tender years is a match for the police in such a contest. Heneeds counsel and support if he is not to become the victim first offear, then of panic. He needs someone on whom to lean lest theoverpowering presence of the law, as he knows it, crush him. Nofriend stood at the side of this 1 5-year-old boy as the police, workingin relays, questioned him hour after hour, from midnight until dawn.No lawyer stood guard to make sure that the police went so far and nofarther, to see to it that they stopped short of the point where hebecame the victim of coercion. No counsel or friend was called duringthe critical hours of questioning. A photographer was admitted oncethis lad broke and confessed. But not even a gesture towards getting alawyer for him was ever made. 71

Similarly, in Gallegos v. Colorado, the Supreme Court cited Haley'sproposition that juveniles should not be judged by "the more exacting standards ofmaturity."172 Although the fourteen-year-old boy was allegedly advised of his right tocounsel and did not ask for a lawyer, the Court held that the juvenile was "unlikely tohave any conception of what will confront him when he is made accessible only to thepolice." 173 The Court also pointed out that the juvenile would not have a fullunderstanding of the consequences of the questions and answers he gave, and wouldbe unable to protect his constitutional rights. 74

These protections, however, have eroded in more recent years. In State v.Singer, the Superior Court of Delaware held that the fifteen-year-old defendant "neednot be cloaked with the tender immaturity protection of Haley and Gallegos," and thatthe defendant's age would not render his confession inadmissible.' 75 Similarly, inWilson v. Oklahoma, the United States Court of Appeals held that the thirteen-year-olddefendant could render a voluntary confession despite his assertion that he did notunderstand his Miranda rights and what it meant to have a lawyer present. 76

Given the erosion of these protections, police officers are subject to minimalrestrictions in the methods they use to interrogate youth. In fact, standard policemanuals encourage interrogators to exploit a suspect's weakness. 177 Under Frazier v.Cupp, police officers have the authority to lie to suspects about evidence. 78 At thesame time, these officers subscribe to an ethical code that is meant to set standards for

171. Id. at 599-600.172. Gallegos v. Colorado, 370 U.S. 49, 53 (1962).173. Id. at 54.174. Id.175. State v. Singer, (No. IN-79-04-0484), 1979 WL 195351, at *4 (Del. Super. Ct. Nov. 6, 1979).176. Wilson v. Oklahoma, (No. 08-5101), 363 F. App'x 595, 615 (10th Cir. 2010).177. Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy

Confessions, 32 HARV. C.R.-C.L. L. Riiv. 105, 118 (1997).178. Frazier v. Cupp, 394 U.S. 731, 739 (1969) ('The fact that the police misrepresented the statements

that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntaryconfession inadmissible.").

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their practice and establish the credibility of law enforcement. When police officerspresent juvenile suspects with incontrovertible evidence of their guilt, the juvenile mayfeel pressured to confess in an effort to obtain more lenient punishment. In one well-known case, 179 seventeen-year-old Martin Tankleff confessed to the murder of hisparents after police tricked him into believing that his father had emerged from a comaand claimed his son was responsible. 180 In reality, Tankleff's father never regainedconsciousness and died shortly after police told this lie.181 Tankleff spent seventeenyears in jail (of a fifty-year sentence) until forensic evidence suggested others were atfault for the murders. 182

Given that police are able to lie during the interrogation process, one mayquestion what keeps police from lying when they apply for warrants or give testimonyin court. In some places, police deception fosters distrust in the entire system of lawenforcement:

Police lying might not have mattered so much to police work in othertimes and places in American history. But today, when urban juriesare increasingly composed of jurors disposed to be distrustful ofpolice, deception by police during interrogation offers yet anotherreason for disbelieving law enforcement witnesses when they take thestand, thus reducing police effectiveness as controllers of crime. 83

As studies have already recognized false confessions as a leading cause oferroneous convictions 184, an officer charged with protecting the innocent againstdeception should recognize that employing deceptive interrogation tactics runs counterto his public service commitment. (Not surprisingly, the American PsychiatricAssociation explicitly prohibits psychiatrists from participating in deceptive policeinterrogations, recognizing that these practices breach basic ethical principles. 85)Further, an officer may inadvertently supply the defendant with details of the crime

179. See People v. Tankleff, 84 N.Y.2d 992 (1994).180. David K. Shipler, Why Do Innocent People Confess?, N.Y. TIMES, Feb 23, 2012, available at http://

www.nytimes.com/20 2/02/26/opinion/sunday/why-do-innocent-people-confess.htm?pagewanted=all&_r=O (last visited Dec. 27, 2013).

181. Id.182. Id.183. Jerome Skolnick, "The Ethics of Deceptive Interrogation", Boat Hall Transcript 23 (Spring 1993),

reprinted in MYRON MOSKOVI-r/, CASES AND PROBLEMS IN CRIMINAL PROCEDURE: THE POI.ICE(2010), available at http://books.google.com/books?id=EOJ9USOOi3cC&pg=PT1246&dq=Police+Iying+might+not+have+mattered+so+much+to+police+work+in+other+times+and+paces+in+%09American+history&hl=en&sa=X&ei=dJXLUrC4AaTu2wWft4CQCg&ved=OCC8Q6AEwAA#v=onepage&q=Police%201ying%20might%20not%20have%20mattered%20so%20much%20to%20police%20work%20in%20other%20times%20and%20places%20in%20%09American%20history&f=false.

184. See Kassin et al., supra note 45, at 3; Ronald Huff et al., Guilty Until Proven Innocent: WrongfulConviction and Public Policy, 32 CRIME & DELINQ. 518 (1996); Arye Rattner, Convicted ButInnocent: Wrongful Conviction and the Criminal Justice System, 12 LAW. & HUM. BEHAV. 283(1988).

185. Jeffrey S. Janofsky, Lies and Coercion: Why Psychiatrists Should Not Participate in Police andIntelligence Interrogations, 34 J. AM. ACAD. PSYCHIATRY LAW 472, 475 (2006).

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through leading questions; these details may reappear in a confession and give thejudge or jury a false sense of its credibility. 186

England, conversely, has a legislative framework that outlines the powers ofthe police, 187 a model that the United States could consider adopting. This frameworkwas enacted in 1984 when England and Wales passed the Police and CriminalEvidence Act of 1984 (PACE), an act that limits the intentional misrepresentation ofevidence. 88 Studies suggest that England's current model of interrogation that focuseson information-gathering is more effective in eliciting true confessions than anadversarial model that relies on police coercion.189

B. False Confessions and Prosecutorial Misconduct

Charges of prosecutorial misconduct are rare, as prosecutorial conduct duringcriminal investigations and trials is not closely scrutinized.190 Criminal charges againstprosecutors are rarely brought.'9 ' In a study of 381 homicide cases in which a newtrial was ordered because prosecutors withheld exculpatory evidence (known as aBrady Violation 92), a Chicago Tribune analysis found that only two of the prosecutorswere indicted. 93 Per Walter Steele, "bar grievance committees have paid scantattention to prosecutorial ethicality, and consequently, prosecutors may havedeveloped a sense of insulation from the ethical standards of other lawyers."' 94 Somecourts have even held that a case does not need to be reversed when a prosecutorviolates a rule of professional responsibility, as it constitutes harmless error. 95

186. Jim Trainum, I Took a False Confession - So Don't Tell Me It Doesn't Happen!, ACLU OF

NORT ERN CALIFORNIA (Sept. 20, 2007,) http://www.calitics.com/showDiary.do?diaryld=3831.187. Aldert Vrij, "We Will Protect Your Wife and Child, But Only If You Confess": Police Interrogations

in England and the Netherlands, in ADVERSARIAL VERSUS INQUISITORIAL JUSTICE: PSYCHOLOGICAL

PERSPECTIVES ON CRIMINAL JUSTICE SYSTEMS 55, 56 (Peter J. van Koppen & Steven D. Penrod eds.,2003).

188. Id.189. Christian A. Meissner et al., False Confessions, (Jan. 2009), available at http://works.bepress.com/

christian-meissner/39/ at p. 11 (last visited Nov. 10, 2013); see also George Thomas,C., CitizenIgnorance, Police Deception, and the Constitution: A Symposium Confessions and PoliceDisclosure: Regulating Police Deception During Interrogation, 39 TEX. TECH L. REv. 1293, 1317(2007).

190. Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 STAN. L. Riuv. 989, 997 (2006)("[T]here is a systemic failing in which prosecutors make the key decisions in criminal matterswithout a judicial check and without any of the structural and procedural protections that governother executive agencies.").

191. Rachel E. Barkow, Organizational Guidelines for the Prosecutor's Office, 31 CARDozo L. REv.2089, 2094 (2010).

192. David Kennan, et al., The Myth of Prosecutorial Accountability after Connick v. Thompson: WhyExisting Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct,121 Yale L.J. ONLINE 203, 225 (2011), (explaining that Rule 3.8 of the ABA's Model Rules ofProfessional Conduct obligates prosecutors to turn over all evidence, favorable to the defense, in atimely manner; this rule, however, is incredibly vague, thus undermining "its efficacy andenforceability in practice").

193. Ken Armstrong & Maurice Possley, Part 1: The Verdict: Dishonor, CHI. TU., Jan. 11, 1999, http://www.chicagotribune.com/news/watchdog/chi-020 i 03trial 1,0,479347.story.

194. Walter W. Steele, Jr., Unethical Prosecutors and Inadequate Discipline, 38 Sw. L.J. 965, 966(1984).

195. People v. Green, 274 N.W.2d 448, 455 (Mich. 1979).

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Consequently, false confession cases involving prosecutorial misconduct rarely resultin any civil or criminal liability for the prosecutor.

In 1989, five African teenagers were arrested for the assault and rape of TrishaMeili in the Central Park Jogger Case. 196 Their names were released to the press

before any of them had even been formally charged, and their photos and addressesbecame front-page news. 197 After grueling interrogations and being told that physical

evidence linked them to the scene, the boys confessed to the rape, getting many of thedetails incorrect. 198 One of the juveniles, Antron McCray, stated that "We was at the

tennis courts and then we seen this lady jogging lady. She had on blue shorts and awhite, white shirt."' 199 In reality, the crime took place at least seven blocks from the

area McCray described, and the jogger was wearing long black running tights.20 0

Another juvenile, Kharey Wise, said that his friend Kevin "pulled out his knife and cuther legs up, cut her up," despite the prosecution's medical expert testifying that thevictim suffered no injuries from a knife.20' Despite these inconsistencies, theprosecution pushed forward, also relying on false forensics to argue that hairs from the

victim matched those found on the defendants (later shown to be false).20 2 Prosecutorsalso did not tell the defense that another rape occurred near Central Park two days

before the attack on the jogger. 20 3 Ultimately, the jury used the false confessions and

forensic evidence to convict the five boys.2°4 Reverend Calvin 0. Butts summed upwhat had happened in this case to the New York Times, stating that, "The first thing

you do in the United States of America when a white woman is raped is round up abunch of black youths, and I think that's what happened here.120 5 In 2002, the boys'

convictions were vacated after DNA evidence linked another man, Matias Reyes, tothe crime.2 06 Despite this exoneration, the assistant district attorney and NYPDmaintain that the five teenagers were involved in the crime.20 7 Although the five

teenagers, now men, are suing New York for wrongful prosecution, they will have

196. NYC is Pressed to Settle Central Park Jogger Case, USA TODAY, Apr. 6, 2013, http://www.usatoday.com/story/newslnation/2013/04/06/nyc-central-park-jogger/2058829/.

197. Joan Didion, Sentimental Journeys, N.Y. REv. oi, BOOKS, Jan. 17, 1991, http://www.nybooks.com/articles/archives/1991 /jan/l7/new-york-sentimental-journeys/.

198. Jim Dwyer & Kevin Flynn, New Light on Jogger's Rape Calls Evidence into Question, N.Y. TIMIES,Dec. 1, 2002, http://www.hks.harvard.edu/dnabook/NY-HOW%20CENT%20PK%20CASE%20COLLPSD. I st.

199. Id.200. Id.201. Id.202. Id.203. Chris Smith, Central Park Revisited, N.Y. MAG. (Oct. 21, 2002), http://nymag.com/nymetro/news/

crimelaw/features/n_7836/.204. Id.205. William Glaberson, In Jogger Case, Once Viewed Starkly, Some Skeptics Side with Defendants,

N.Y. TIMiS (Aug. 8, 1990), http://www.nytimes.com/1990/08/08/nyregion/in-jogger-case-once-viewed-starkly-some-skeptics-side-with-defendants.html.

206. Annaliese Griffin, A Profile of Matias Reyes, N.Y. DAILY Nt-ws (Apr. 5, 2013), http://www.nydailynews.com/services/central-park-five/profile-matias-reyes-article- 1.1308560/.

207. Matt Sledge, 'Central Park Five' Jogger Rape Case: Compensation Proves Elusive for WrongfullyAccused, HUFFINGTON POST NEW YORK (May 17, 2011), http://www.huffingtonpost.com/2011/05/06/central-park-five-jogger-rape-case-compensation n 858795.html.

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difficulty proving police or prosecutorial misconduct, and overcoming civil lawsuitbarriers to prosecutorial immunity. 208 These barriers ultimately prevent prosecutorialaccountability, and run counter to the fundamental fairness requirement of theConstitution's due process guarantee. Per Commonwealth of N. Mariana Islands:

Nowhere in the Constitution or in the Declaration of Independence,nor for that matter in the Federalist or in any other writing of theFounding Fathers, can one find a single utterance that could justify adecision by any oath-beholden servant of the law to look the otherway when confronted by the real possibility of being complicit in thewrongful use of false evidence to secure a conviction in court.2°9

VII. PROCEDURAL SAFEGUARDS AND POTENTIAL REFORMS

A number of procedural safeguards are necessary to address the problem ofjuvenile false confessions, especially considering that an increasing number of statesare trying juveniles as adults. Fourteen states use fourteen as the cut-off age for tryinga youth as an adult, while six states set the bar at thirteen.210 Kansas and Vermontallow ten-year-olds to be tried as adults.21' Twenty-three other states have no cutoff,also allowing ten-year-olds to be tried as adults. 212

A. Juvenile Interrogations Must Be Electronically Recorded

Juvenile interrogations must be electronically recorded so that a complete andobjective record of the interrogation exists. This proposition is supported by theAmerican Bar Association:

RESOLVED, That the American Bar Association urges all lawenforcement agencies to videotape the entirety of custodialinterrogations of crime suspects at police precincts, courthouses,detention centers, or other places where suspects are held forquestioning, or, where videotaping is impractical, to audiotape theentirety of such custodial investigations.

FURTHER RESOLVED, That the American Bar Association urgeslegislatures and/or courts to enact laws or rules of procedure requiringvideotaping of the entirety of custodial interrogations of crimesuspects at police precincts, courthouses, detention centers, or other

208. See Kennan et al., supra note 192, at 213 (discussing how prosecutorial immunity from tort liabilityextends to all conduct central to the prosecutor's role as an advocate (i.e. filing criminal charges orpresenting evidence to a jury). (Under the recent Supreme Court holding in Connick v. Thompson,131 S. Ct. 1350, 1353-55 (2011), the scope of this protection has been extended. In this case,prosecutors were given immunity after withholding multiple pieces of evidence at trial that wouldhave cleared the defendant, who as a consequence spent fourteen years on death row.).

209. N. Mariana Islands v. Bowie, 243 F.3d 1109, 1124 (9th Cir. 2001).210. M. Wood, Standards Needed for Juvenile Confessions, Panelists Say, UVA LAW (Feb. 16, 2005),

http:llwww.law.virginia.edu/htmllnews/2005-spr/ps-juvenile.htm.211. Id.212. Id.

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places where suspects are held for questioning, or, where videotapingis impractical, to require the audiotaping of such custodialinterrogations, to provide necessary funding, and to provideappropriate remedies for non-compliance. 21 3

Videotaping allows the jury or judge to see how the juvenile was interrogated

and observe whether any overly coercive police tactics were used. It also allows theinterrogators to review the record, and look for additional details that were not

perceived during the actual interrogation. Reviewing the record is critical -interrogators are prone to attribution errors. 2 4 They will prompt juveniles with

leading questions, thereby supplying them with details, and later attribute these details

as coming directly from the juveniles. 21 5 Detective Jim Trainum wrote about thishappening, and his subsequent review of the recorded interrogation:

Years later, during a review of the videotapes, we discovered ourmistake. We had fallen into a classic trap. We believed so much in oursuspect's guilt that we ignored all evidence to the contrary. Todemonstrate the strength of our case, we showed the suspect ourevidence, and unintentionally fed her details that she was able toparrot back to us at a later time ... It was a classic false confessioncase and without the video we would never have known. 2 16

England has already mandated electronic recording of police interrogations via

the Police and Criminal Evidence Act of 1984.217 In the United States, Alaska(Stephan v. State218) and Minnesota (State v. Scales219) already require thatinterrogations be taped. In Illinois, this recording is mandated in all homicide cases. 220

Jurisdictions that have implemented electronic recording of interrogations are pleasedwith the results, especially given the increased public trust in law enforcement. 22'

Even the firm that developed the Reed Technique conducted a survey that concluded:

213. ABA CRIM. JUST. SiEC., Achieving Justice: Freeing the Innocent, Convicting the Guilty, Report ofthe ABA Criminal Justice Section's Ad Hoc Innocence Committee to Ensure the Integrity of theCriminal Process (2006), at 121 [hereinafter Achieving Justice], http://apps.americanbar.org/crimjust/committees/innocencebook.pdf.

214. See Trainum, supra note 186.215. Id.216. Id.217. See Vrij, supra note 187; see also Confessions, Unfairly Obtained Evidence and Breaches of PACE,

http://www.cps.gov.uk/legala-to-c/confession,-and breachesof-police-andcriminal-evidence_act/ (last visited Jan. 3, 2014).

218. Stephan v. State, 711 P.2d 1156, 1159 (Alaska 1985).219. State v. Scales, 518 N.W.2d 587, 592 (Minn. 1994).220. Nadia Soree, When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role

of Expert Testimony, 32 AM. J. CRIM. L. 191, 258 (2005).221. Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, 1 NW. U. SCH.

oi- LAW, CTR. ON WRONGFUL CONvicTIONS 9 (2004), http://www.innocenceproject.org/docs/Police-ExperiencesRecording__Interrogations.pdf. (quoting a number of jurisdictions that mandaterecording, like DuPage County, Illinois, which has the following office policy: "Electronicrecording of suspect interviews in major crime investigations protects both the suspect andinterviewing officers against subsequent assertions of statement distortion, coercion, misconduct ormisrepresentation. It can serve as a valuable tool to the criminal justice system, assisting the Courtin the seeking of the truth.")

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This reform in interviewing and interrogation practices suggests thatthe overall benefit of electronic recording in custodial cases is not onlyfeasible, but may have an overall benefit to the criminal justicesystem. In an era where academicians generalize from laboratorystudies and use anecdotal accounts to support claims that policeroutinely elicit false confessions, electronic recordings may be themost effective means to dispel these unsupported notions. 222

Further, an argument could be made that failure to videotape an interrogationconstitutes a Brady Violation. A Brady Violation occurs when a prosecutor withholdsany favorable and material information from the defense, thus limiting their ability todevelop the most appropriate defense. 223 Per the Supreme Court, "the suppression bythe prosecution of evidence favorable to an accused ... violates due process where theevidence is material either to guilt or to punishment, irrespective of the good faith orbad faith of the prosecution. '224 In not videotaping an interrogation, the prosecutioncan shield the defense from any mitigating information like coercive interrogationtechniques or promises of leniency that can make a defendant's confession appear lessreliable.

B. Juveniles Cannot Waive Their Miranda Rights Without an AttorneyPresent

Juveniles should be required have an attorney present before being allowed towaive their Miranda rights. Confessions given without this protection should not besubject to the totality of the circumstances test at trial. Rather, these confessionsshould be automatically suppressed as an acknowledgment that juveniles will not havea proper understanding of their rights, and that an unknowing waiver constitutes aviolation of the Fifth Amendment's Due Process clause. Further, having an interestedadult present is not sufficient, as adults often encourage juveniles to cooperate with thepolice.225 Illinois statute 5-170 currently mandates that minors under thirteen,suspected of committing a serious crime, must be represented by an attorney duringthe entire custodial process, including the reading of Miranda rights.226 Iowa statute§232.11 mandates that a juvenile under sixteen years of age cannot waive the right toan attorney without parental permission.227 Other states including Kansas,

222. Brian C. Jayne, et al., Empirical Experiences of Required Electronic Recording of Interviews andInterrogations on Investigators' Practices and Case Outcomes, JOHN E. REID & Assocs., INC.(2004), https://www.reid.conpdfs[Videotaping-study.pdf.

223. Brady v. Maryland, 373 U.S. 83, 87-88 (1963).224. Id. at 87.225. Lois B. Oberlander & Naomi E. Goldstein, A Review and Update on the Practice of Evaluating

Miranda Comprehension, 19 Behav. Sci. & L. 453, 463 (2001) available at http://www.wisspd.org/htmATPracGuides/Training/ProgMaterials/Conf2007/WEfr/RUPE.pdf.

226. 705 ILCS 405/5-170 (2013), available at http://www.ilga.gov/legislation/ilcs/fulitext.asp?DocName=070504050K5-170.

227. Kenneth J. King, Waving Childhood Goodbye: How Juvenile Courts Fail to Protect Children fromUnknowing, Unintelligent, and Involuntary Waivers of Miranda Rights, 2 Wis. L. REV. 431, 451(2006).

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Massachusetts, Montana, New Jersey, New Mexico, and Washington have similarstatutes protecting minors under a certain age.228 In line with these states, the ABAalso endorses the idea that juveniles are afforded access to counsel before being able towaive their Miranda rights: The right to counsel in the adult criminal justice systemshould not be waived by a youth without consultation with a lawyer and without a fullinquiry into the youth's comprehension of the right and capacity to make the choiceintelligently, voluntarily, and understandingly. 22 9

Requiring an attorney to be present before a juvenile can waive their Mirandarights, however, is not the norm. Most states continue to rely on the totality of the

circumstances test 230 elaborated in Fare v. Michael C.,231 typically allowing a judge tofind that a juvenile waived their Miranda rights and failing to protect them from their

own vulnerabilities.2 32

C. Miranda Warnings Must be Rewritten in Developmentally-AppropriateLanguage

Given the difficulties juveniles have in understanding Miranda rights, theserights need to be rewritten in developmentally appropriate language. I would suggest

some variation of the following:

The police want to ask you some questions. You do not have to talkwith them. You do not have to answer their questions. They can useanything you say in trying to figure out if you did something that wasagainst the law. If you do not want to talk with the police, you willnot get in trouble for being quiet. If you would like an adult to helpyou decide what to do, you can have your parents here. You can alsohave a lawyer. A lawyer is someone who is trained in helping youmake the best decision for you. This will not cost you any money. Ifyou want to talk to the police, you can stop answering their questionswhenever you want. Do you understand what I have just told you?What would you like to do?

Although this rewritten Miranda warning would equate with a 3rd grade

reading level, 233 it represents a marked improvement over the standard Mirandawarning that equates with a 9th grade reading level. 234 More juveniles will understand

228. Id.229. Ronald C. Smith, Youth in the Criminal Justice System: An ABA Task Force Report, A.B.A. 2

(Feb. 2002), available at http://www.americanbar.org/contentldamlaba/publishinglcriminal-justice-sectionnewsletter/crimjust-juvjusjjpoliciesYCJSReport.authcheckdam.pdf.

230. Nashiba F. Boyd, "I Didn't Do It, I Was Forced to Say That I Did": The Problem of CoercedJuvenile Confessions, and Proposed Federal Legislation to Prevent Them, 47 How. L.J. 395, 412(2004).

231. See Fare v. Michael C., 442 U.S. 707, 725 (1979).232. See Boyd, supra note 230.233. The above block quote was developed by the author using a Flesch-Kincaid Readability Statistic

available on Microsoft Word.234. See note 107 for text of typical Miranda warning. Readability was measured using a Flesch-Kincaid

Readability Statistic available on Microsoft Word.

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this version of a Miranda warning, and be able to make a more informed choice as towhether they want to speak with police. Police officers would also benefit juvenilesuspects by conducting a check for understanding, a common practice in elementaryschool classrooms, in which follow-up questions are asked to gauge comprehension.

D. Juveniles Cannot be Subject to the Same Coercive InterrogationTechniques as Adults

In England, the Police and Criminal Evidence Act (PACE) of 1984 regulatesthe interrogation process, setting out procedures for detained suspects. 235 This lawrequires that youth have access to a responsible adult to ensure the interview isconducted fairly, and electronically recorded. 236

Further, British police officers are trained in interviewing procedures, andfollow a less confrontational approach known by the mnemonic PEACE ("Preparationand Planning," "Engage and Explain," "Account," "Closure," and "Evaluate"). 237

During the first preparation phase, the police develop a plan for the interview. 238 Oncethe interview begins, suspects are encouraged to give a free flowing narrative whereclose-ended questions are avoided, and false evidence is never presented.239 Policethen offer the suspect the opportunity to explain any discrepancies in their narrative. 240

After the interview, police officers compare the suspect's narrative to evidence. 241

Since implementing these non-adversarial practices, England has not seen a significantdrop in the frequency of confessions. 242 Research has also supported the claim thatless confrontational interviewing techniques can lower the rate of false confessionswithout affecting the rate of true confessions. 243

The United States should adopt similar interrogation techniques givenMiranda's failure to protect juveniles who may falsely confess when pressed by anauthority figure. Time limits on interrogations are also necessary because there is adirect relationship between interrogation time and false confession frequency.244

Further, juveniles should not be presented with false evidence of their guilt. Juvenilesmay feel trapped by this false evidence, and conclude that a false confession is the

235. See Kassin, supra note 45, at 13.236. Id.237. Christian A. Meissner et al., False Confessions, APPLIED CRIMINAL PSYCHOLOGY: A GUIDE TO

FORENSIC BEHAVIORAL SCIENCES 191-212 (Richard N. Kocsis ed., Charles C. Thomas Publisher,Ltd. 2009) available at http://works.bepress.com/cgi/viewcontent.cgi?article=1038&context=christian-meissner, p.1 1.

238. Id.239. Id.240. Id.241. Id.242. ld.243. Christian A. Meissner et al., Interview and Interrogation Methods and their Effects on True and

False Confessions, 13 CAMPBELL SYSTEMATIC REVS. 33-34 (2012), available at https:/lwww.google.conm/search?q=Christian+Meissner+et+al.%2C+Interview+and+Interrogation+Methods+and+their+Effects+on+True+and+False+Confessions&oq=Christian+Meissner+et+al.%2C+lnterview+and+Interrogation+Methods+and+their+Effects+on+True+and+False+Conf

244. Drizin & Leo, supra note 52 at 946-47.

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only means to end an interrogation. Fred Inabu has also argued against use of falseincriminating evidence in juvenile interrogations, writing, "[S]pecial protections mustbe afforded to juveniles and to all other persons of below-average intelligence, tominimize the risk of untruthful admissions due to their vulnerability to suggestivequestioning" 245 and "These suspects may not have the fortitude or confidence tochallenge such evidence and, depending on the nature of the crime, may becomeconfused as to their own possible involvement. '246

E. Juvenile Defense Attorneys Need the Opportunity Present ExpertTestimony on False Confessions

Studies suggest that most jury pools do not have common knowledge on falseconfessions, especially considering the counterintuitive nature of confessing to a crimeyou did not commit.2 47 Judges, however, will often exclude expert testimony on falseconfessions, believing it to be within the common knowledge of the jury.248 In State v.Free, the court stated that expert testimony on false confessions was properly excludedbecause there was not enough evidence "in the record in this case, to support theproposition that the general public believes that person who confesses must beguilty. '249 Consequently, expert testimony on the interrogation process and theincreased vulnerabilities of juveniles should not be excluded, and can aid a jury indetermining whether a false confession was made.

The types of expert testimony can be divided into two areas. Experts havemacro-level knowledge that goes to the frequency of Miranda waivers and therelationship between false confessions and wrongful conviction. 250 Experts also cantestify to dispositional factors, like mental disability, and situational factors, likepromises of leniency, that can increase the probability of a false confession.25'

Many states, however, still follow the Frye test in determining whether experttestimony is admissible.252 Strict application of this test means that expert testimony isfrequently excluded based on its level of acceptance in the scientific field.253 Statesusing the more liberal Daubert test are more likely to allow this type of experttestimony.2 54 California has strong limits on expert testimony about false confessions,only allowing a general discussion of police interrogation methods.255

245. Kassin et al., supra note 44, at 31.246. Id.247. Danielle Chojnacki et al., supra note 163, at 11.248. Id. at 3.249. State v. Free, 798 A.2d 83, 93 (N.J. Super. Ct. App. Div. 2002).250. Chojnacki et al., supra note 163, at 12-14.251. Id.252. Id. at 20.253. Id.254. Id.255. Nadia Soree, When the Innocent Speak: False Confessions, Constitutional Safeguards, and the Role

of Expert Testimony, 32 AM. J. CRIM. L. 191, 244 (2005) (citing People v. Page, 2. Cal. App. 4th161 (1991).

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F. Technology Could Eventually Improve the Accuracy of JuvenileInterrogations

In addition to procedural reforms, technology may one day provide anotheroption in determining whether a juvenile is telling the truth. No Lie MRI., Inc., iscurrently working to develop brain scans that can detect deception in the brain. 256 Thistechnology is able to predict deception based on increased activity in the frontallobe.2 57 Although some neuroscientists feel that the scientific reliability of thistechnology has yet to be proven, it may eventually provide police interrogators withanother option.258

Other scientists are developing eye-tracking technology as a deception-tracking tool,2 5 9 while another team is investigating whether micro-gestures, invisibleto the naked eye, can be used for the same purpose. 260 Although this technology is farfrom being ready for courtroom use, it represents a potentially promising development.

VIII. CONCLUSION

Given the high rate of false confessions amongst youth and their increaseddevelopmental vulnerabilities, procedural reforms (like electronically recordinginterrogations) are needed to ensure that juveniles receive the full protection of thelaw. The law has not changed much since 1827 when State v. Guild was decided. Thetotality of the circumstances test employed by most courts purports to consider age indetermining whether a confession was voluntary, but precedent suggests thisconsideration can be easily overcome as courts continue to find that juveniles as youngas ten knowingly waived Miranda.

256. News about No Lie MRI, (NBC television broadcast June 24, 2012), available at http://www.youtube.com/watch?v=99uiiH8u-Yo (video describing this technology).

257. Id.258. Editorial, Deceiving the Law, II NATURE Ni3UROSCIENCE 1231 (2008), available at http://www.

nature.com/neuro/journallv 1/ni I/full/nnI 108-1231 .html.259. You Can't Hide Your Lyin' Eyes: Eye-Tracking Lie-Detection, PHYS ORG (Jul. 12, 2010),

available at http://phys.org/news]98117758.html.260. Mike Hanlon, Polygraph No Match for New Lie Detecting Technique, GIAMA, available at http://

www.gizmag.com/go/1735/.

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