A 12-year-old cannot legally do a lot of things. She lacks the legal capacity to sign a contract, quit school or consent to sex. But she can waive her right to an attorney and confess to attempted murder.
By definition, minors below a certain age lack the capacity to understand their legal rights and therefore lack the capacity to knowingly waive them. The law regularly uses age as a marker for capacity; although the capabilities of individual youths will vary, the law has no trouble finding that everybody below a certain age lacks capacity to undertake all sorts of responsibilities and agreements. That is why we also limit who can drive, buy cigarettes and alcohol, and vote.
But in Wisconsin, as in many jurisdictions, exposing oneself to attempted murder charges after interrogation without counsel is not part of that list.
Two 12-year-old girls face up to 65 years in prison for attempted murder after confessing to stabbing their friend 19 times. Neither girls’ parents nor any attorney was present when the girls made this confession. Wisconsin is one of the many states where 12 is old enough to waive rights to counsel and against self-incrimination. The girls are now being prosecuted as adults.
This state of affairs is senseless and it clearly flies in the face of the constitutional reasoning that the Supreme Court found in the Miranda v. Arizona case nearly 50 years ago. The reason that suspects taken into custody are read their rights in a warning named for that case is that the Court ruled a person in custody must understand their relevant legal protections. Advocates of reform to protect children from self-incrimination observe that juveniles are statistically more likely than adults to misunderstand their Miranda Rights.
Waukesha police captain Ron Oremus, in discussing the Wisconsin girls’ confessions, said, “If they didn’t request, we’re not providing [counsel],” according to The Guardian. Expecting a pair of 12-year-olds to insist on legal representation when faced with adult law enforcement officials and prosecutors is ridiculous when you consider that these children are too young to consent to a website’s terms of service without a parent or guardian’s permission.
A few years ago, the Supreme Court had a chance to address the lack of sufficient procedural checks to protect against coached or coerced testimony from minors in the case Camreta v. Greene. However, as I expected at the time, the Court declined to tackle the Fourth Amendment issues the case raised because the child in question both had moved and was too old to be affected by the ruling in any way. In the absence of another case so far, we should look to policy changes to address this issue proactively.
As the ability to record high-quality video becomes increasingly ubiquitous, many jurisdictions are instituting practices requiring enforcement officials to record video of most or all interviews with suspects, and sometimes interviews with witnesses as well. The Justice Department recently instituted this requirement in most instances, in a policy shift. In this context, there is no reason that all interrogations, of suspects at any age, should not be recorded in all jurisdictions. This practice ultimately helps both parties; it serves as a check on interrogators who might otherwise extract a false confession under pressure and as a way for law enforcement officials doing their jobs properly to validate confessions in the courtroom. In the case of minors, it may also obviate the need to have children come to court to testify when they are witnesses rather than suspects.
For children’s testimony, we should go farther than requiring video recording, however. Simply recording a confession is not a foolproof method of preventing coerced or false self-incrimination, as was famously demonstrated by the case of the Central Park jogger. Five teenagers were convicted on the strength of videotaped confessions, but all pleaded not guilty and their convictions were vacated more than a decade later. We need to broadly examine the systems we have in place to ensure that minors are not deprived of their rights simply because they are too young to understand or insist upon them. If 15- and 16-year-olds who had a guardian present still felt pressured into false confessions, it is hard to see how anyone can be anything but dubious about a confession from a 12-year-old who had no adult support.
At a minimum, police and prosecutors ought to be barred from using any evidence derived from interrogating minors who were not accompanied by an attorney or a legal guardian at the time. Minors who lack the capacity to obtain a credit card certainly lack the maturity to knowingly exercise or waive their rights under questioning from someone who carries a badge and a gun.