Minors have rights, too

Thanks to the dubious content of popular television, most people - minors included - have heard of Miranda warnings, which are generally waived in writing and poorly understood. Named after the landmark U.S. Supreme Court case Miranda v. Arizona in 1966, a suspect in custody must be advised by police (or prosecutors if present) of the constitutional right to silence and to legal counsel before being interrogated. If Miranda rights are waived, it must be "knowing, voluntary, and intelligent" - so age, mental disability, and other factors are considered.

According to case law, Miranda only applies during "custodial interrogation." Interrogation means questions. With rare exception, statements by police during an interview are not questions, even the kind most humans feel inclined to answer (God will forgive you; I can't help you if you don't talk to me; it could get worse for you; you know what you need to do; I wouldn't blame you; I'd have been mad, too; it wasn't your fault). Are these "designed to illicit an incriminating response" and therefore de facto interrogatory? Generally courts don't think so.

If silence is invoked, questioning may continue (as can silence). Even if a Mirandized suspect invokes the right to silence, he can waive his right by "initiating" speech again voluntarily whether in response to questions, statements, or simply spontaneous. The suspect may waive rights, answer some questions, then change his mind and invoke silence or counsel.

If counsel is requested at any time, but only if that request is "unambiguous," questioning must stop until counsel is present. One Idaho court determined that a mother's question "do I need an attorney, because I can't afford one," adding she didn't know what to do about that, was not a clear and unambiguous invocation of her young son's right to counsel. And according to Idaho law, as well as most states, she needn't necessarily have been there for her minor son to be questioned.

Only a "suspect" must be given Miranda warnings. Even at a police station, if the person questioned is a "witness," Miranda generally doesn't apply, even if that person later becomes a suspect. Of course, people interviewed as witnesses are also required to cooperate with police. Once the person is determined to be a suspect, Miranda applies.

Custody doesn't necessarily mean handcuffs. Sometimes, it doesn't even mean in a police station. A minor questioned by police at school has been held by courts to be "in custody" for Miranda purposes. So has a hospital. For both examples, that's sometimes, but not always. All of this is murky even for attorneys, adults, and parents (who can still be questioned after the minor-suspect has invoked right to silence), let alone kids. Judged case by case and based on the "totality of the circumstances," most often Idaho decisions fall on the side of the police.

Youth is certainly a factor in Miranda waivers (as well as how long detained, sleep and food deprivation, experience, and intelligence). It's obvious a 7-year-old doesn't have the mental capacity to knowingly and intelligently waive his rights. How about an 11- or 16-year-old? With or without prior dealings with police? Recent news items, as well as prior case law, confirm Idaho law considers legally inexperienced middle and high school kids sophisticated enough to fully understand their Miranda rights.

Medical studies repeatedly confirm the developing brain isn't fully formed until the early 20s, especially the prefrontal cortex responsible for decision-making, judgment, and impulse control, which is last to physically mature.

The Idaho Supreme Court explained: "Children of tender years lack an adult's knowledge of the probable cause of their acts or omissions and are least likely to understand the scope of their rights and how to protect their own interests. They may not appreciate the ramifications of their decisions or realize all the implications of the importance of counsel. Indeed, the need for counsel has been recognized as all the more vital with respect to the unsophisticated, who are often uneducated in the ways of the criminal justice system and unaware of the role counsel can play in protecting their interests."

The same court determined a 12-year-old questioned without a parent present "knowingly and intelligently" waived his right to counsel. That's some 12-year-old.

Coming Thursday: Defense counsel's role in a free society

Sholeh Patrick, J.D., is a columnist for the Hagadone News Network. Contact her at [email protected].