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Children should never be interrogated without a lawyer present. Here’s why | COMMENTARY

After 36 years on prison, Alfred Chesnut, Andrew Stewart and Ransom Wa (left to right) were exonerated in 2019 of the 1983 murder of a teenage boy. "These three men were convicted, as children, because of police and prosecutorial misconduct," Baltimore state's attorney Marilyn Mosby said.
After 36 years on prison, Alfred Chesnut, Andrew Stewart and Ransom Wa (left to right) were exonerated in 2019 of the 1983 murder of a teenage boy. "These three men were convicted, as children, because of police and prosecutorial misconduct," Baltimore state's attorney Marilyn Mosby said. (TODD KIMMELMAN / MIAP Mid-Atlantic Innocence Pro)

Each case is a stain on the United States legal system, representing 12 teenagers convicted of crimes they did not commit, and 210 lost years behind bars. The convictions were all based on false confessions and false witness statements.

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Sadly, what happened to these boys is not an anomaly. The National Registry of Exonerations reports that 36% of exonerated defendants under age 18 falsely confessed, and in a study of 103 youth wrongful conviction cases, nearly 35% involved unreliable statements by a youth witness. This increased risk of false confession is even greater for kids of color, who face the added disadvantage of police bias.

Decades of research sheds light on why children and adolescents falsely confess to crimes. A combination of coercive interrogation techniques, age-appropriate shortsightedness, and susceptibility to pressure from authority figures puts even innocent youth at risk for making incriminating statements and confessions.

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Equally troubling, false confessions and wrongful convictions make us all less safe because the real perpetrators are not caught.

The time is ripe for states to pass legislation to prevent these profound miscarriages of justice. Researchers and legal scholars have already identified an answer: If police wish to question a child or adolescent, the youth must meet with an attorney first.

Several jurisdictions across the U.S. are working toward this objective, including in Maryland, where newly proposed legislation will require that youth meet with an attorney before police questioning begins and that a parent/guardian be notified. This is similar to a law recently passed in California and a bill currently under consideration in New York. It is time for all jurisdictions to follow suit and make the same crucial strides in juvenile interrogation reform.

Without laws guaranteeing consultation with an attorney, police officers can question youthful suspects so long as they waive their Miranda rights — and police can (and do) use the same deceptive techniques with kids as they use with adults.

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In most jurisdictions, Miranda warnings are the same for adults and juveniles, but even juvenile-specific Miranda warnings are often too complicated for youth to understand. In fact, one study found that many youth did not even understand that a “right” was a protective privilege. Research has consistently demonstrated that, among children and adolescents, serious misconceptions about interrogation rights are not an exception; they are the norm.

Expecting youth to assert their rights like adults jeopardizes youth, because they make decisions differently. As a result of ongoing brain development, youth are more likely to prioritize immediate gain over long-term consequences during stressful situations, such as police interrogation. That makes them susceptible to giving in to police pressure now in the hopes the truth will set them free later.

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Also, because youth are more likely than adults to comply with authority figures, they almost always give in to police requests to answer questions without an attorney present. Unfortunately, confessing to a crime virtually assures conviction even when the confession is false.

Even some police departments recognize that reforming youth interrogation practices is critical. The Baltimore Police Department drafted a proposed policy that would require the presence of a parent/guardian or an attorney (or both) during questioning for anyone under the age of 18 and provide consultation with an attorney for the youngest youth. Although this proposal is an important step, it is not enough.

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Parental presence alone often does not help kids protect themselves; parents may even encourage their children to confess. Therefore, it is imperative that all youth meet with an attorney, and since youth have also been pressured to make false witness statements, this protection should include suspects and witnesses.

Until our laws reflect what we know about adolescent development, parents must do their best to protect their child’s rights by making sure they and their child understand the basics: Police are allowed to lie to you, you do not have to answer any police questions, and asking for a lawyer does not make you look guilty.

A large body of science suggests that requiring an attorney before interrogation will help protect our children from false confessions and wrongful convictions. For too long, far too many of our youngest citizens have been denied their rights; their chance for a prosperous future short-circuited. Change is needed nationwide. Maryland and New York have the opportunity now to make the interrogation room fairer and more just for youth.

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Erika N. Fountain (https://www.erikafountain.com/) is an assistant professor of psychology and director of the Youth Justice Lab at the University of Maryland Baltimore County. Sydney Baker is a clinical psychology doctoral student at John Jay and the CUNY Graduate Center. Emily Haney-Caron is an assistant professor of psychology and director of the Youth Law & Psychology Lab at John Jay College of Criminal Justice.

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