Due Process Rights and Children: Fifty Years of In re Gault Part Five, the Privilege Against Self-Incrimination

Juvenile defenders, the court system, the governor, and other advocates recently celebrated a historic moment in juvenile justice. Monday was the 50th Anniversary of the In re Gault decision, which guaranteed juveniles the right to due process in delinquency proceedings. In honor of the event, this multiple part series on due process has explored the history of Gault and how it transformed juvenile court by ensuring that juveniles have the right to notice, the right to counsel, and the right to confrontation and cross-examination. This final post discusses the Fifth Amendment privilege against self-incrimination and the protection it provides to juveniles, assuming they understand what it means and know how to assert it.

The Fifth Amendment Privilege and Juveniles

In 1964, Gerald Gault was ordered to serve nearly six years in a state industrial school for allegedly making a prank phone call. His adjudication was based upon a confession obtained without his parents or a lawyer being present and without advising him of the right to remain silent. The Arizona courts decided that such formalities (i.e., the advisement of rights and participation of lawyers and parents) were unnecessary in juvenile court where the goal was treatment and not punishment. The U.S. Supreme Court disagreed.

Recognizing that children are more prone to coerced confessions than adults, the court rejected the notion that the Fifth Amendment privilege did not apply to children due to the labeling of juvenile court as “civil” and not criminal. 387 U.S. 1, 45. Describing the harsh realities of juvenile court, the Supreme Court held that:

juvenile proceedings to determine ‘delinquency,’ which may lead to commitment to a state institution, must be regarded as ‘criminal’ for purposes of the privilege against self-incrimination. To hold otherwise would be to disregard substance because of the feeble enticement of the ‘civil’ label-of-convenience, which has been attached to juvenile proceedings. Indeed, in over half of the states, there is not even assurance that the juvenile will be kept in separate institutions, apart from adult ‘criminals.’ In those states, juveniles may be placed in or transferred to adult penal institutions after having been found ‘delinquent’ by a juvenile court. For this purpose, at least, commitment is a deprivation of liberty. It is incarceration against one’s will, whether it is called ‘criminal’ or ‘civil.’ And our Constitution guarantees that no person shall be compelled to be a witness against himself when he is threatened with deprivation of his liberty[.]

Id. at 49-50.

Gault also extended the Miranda rule to juveniles, requiring law enforcement officers to advise juveniles in custody of their Fifth Amendment rights prior to any questioning. Under the Miranda rule, statements made by a juvenile while “in custody” are inadmissible in court unless Miranda warnings were given and the juvenile knowingly and voluntarily waived the juvenile’s rights. The Gault court recognized that “special problems may arise with respect to waiver of the privilege by or on behalf of children,” but did not establish any specific requirements for such waivers. Id. at 55. As a result, state laws vary significantly with respect to whether and how juveniles may waive their rights and whether they must do so in the presence of a parent or an attorney.

NC Juvenile Code Requirements

North Carolina law provides juveniles with special protections that go well beyond Gault’s minimum requirements. G.S. 7B-2405, which codifies the privilege against self-incrimination and other due process rights for juveniles, mandates that trial courts shall protect these rights in the adjudication hearing. The Juvenile Code also requires:

Notice to Parents When a Juvenile is in Custody. When a juvenile is taken into temporary custody by a law enforcement officer without a court order, the officer must notify the juvenile’s parents and inform them of their right to be present with their child until a decision is made as to whether continued custody is necessary. G.S. 7B-1901(a)(1).

Advisement of the Right to Parental Presence During Custodial Interrogation. In NC, juveniles under the age of 18 are entitled to have a parent present during a custodial interrogation. Thus, before a law enforcement officer questions any juvenile who is in custody, the officer must advise the juvenile of the following rights: (1) that the juvenile has a right to remain silent; (2) that any statement made by the juvenile can be used against him or her; (3) that the juvenile has the right to have a parent, guardian, or custodian present during questioning; and (4) that the juvenile has the right to an attorney and that one will be appointed if the juvenile is not represented and wants representation. G.S. 7B-2101(a). When officers fail to give these warnings, any statements made by a juvenile while in custody are inadmissible in court. In re K.D.L., 207 N.C. App. 453 (2010).

No Waiver of Rights by Juveniles Under Age 16. NC law now requires that when a juvenile is under the age of 16, a parent or an attorney must be present during the custodial interrogation in order for the juvenile’s statements to be admissible in court. Also, if an attorney is not present, both the parent and juvenile must be informed of the juvenile’s rights; although, only the juvenile can waive his or her rights. G.S. 7B-2101(b).

Advisement of Rights When Accepting Juvenile’s Admission. A trial court may only accept a juvenile’s admission (i.e., guilty plea) after personally addressing the juvenile to make six mandatory inquiries, including informing the juvenile that the juvenile has the right to remain silent and that anything the juvenile says may be used against him or her. G.S. 7B-2407. Because there is a greater duty to protect the rights of juveniles in juvenile proceedings, the court’s failure to address even one of these mandatory inquiries is reversible error. In re T.E.F., 359 N.C. 570 (2005).

Advisement of Rights When Juvenile Testifies. In order to comply with the mandate in G.S. 7B-2405 to protect a juvenile’s privilege against self-incrimination, trial court judges must advise juveniles of the right to remain silent before allowing the juvenile to testify in his or her own delinquency proceeding. In re J.R.V., 212 N.C. App. 205 (2011).

Requiring the advisement of these warnings prior to interrogations by law enforcement and before a juvenile enters admissions in court increases the likelihood that juveniles will understand their rights and will have an opportunity to exercise them. However, potential barriers may still exist.

The Practical Reality

Some advocates argue that these statutory protections do not go far enough, if juveniles cannot fully understand their rights or effectively assert them. According to this article in the ABA Journal, most youth find Miranda rights to be confusing, and nearly 90% of them waive their rights without understanding the consequences.

Another potential barrier to juveniles exercising their rights is the requirement that juveniles must satisfy adult legal standards to trigger their rights under Miranda. Until six years ago when the Supreme Court decided J.D.B. v. North Carolina, police officers applied a “reasonable adult” standard to determine when they must advise a juvenile of Miranda and juvenile rights. J.D.B. held that the Miranda custody test must account for a child’s youth and its unique characteristics. However, recent appellate decisions reveal that courts have not significantly changed how they apply the Miranda analysis to interrogations of juveniles (see this bulletin addressing the reasonable child standard).

Advocates also argue that juveniles should not be allowed to waive their rights without the assistance of a parent or attorney. North Carolina law, by requiring the presence of a parent or attorney during custodial interrogations of juveniles younger than 16, implicitly recognizes that children lack the capacity to understand their rights without a helpful adult. Despite this protection, juveniles continue to face barriers when attempting to invoke their rights.

In 2015, the NC Court of Appeals held in State v. Saldierna that a 16-year-old possibly attempted to invoke his right to have a parent present during a police interrogation when he asked the detective if he could call his mother, which triggered a requirement that the interrogating officers clarify his statement before proceeding. However, last December, the NC Supreme Court reversed the decision. It held that a juvenile must clearly and unambiguously invoke the statutory right to have a parent present during a custodial interrogation, just like an adult must do to invoke Miranda rights. State v. Saldierna, __ N.C. __, 794 S.E.2d 474 (2016). A prior blog post discusses why the Supreme Court’s decision possibly conflicts with J.D.B.’s mandate that police officers and courts must account for the special vulnerability of juveniles during police interrogations.

Despite these potential barriers, significant progress has been made in the fifty years since Gault, especially in North Carolina.  Let us know your thoughts about additional ways courts can better protect a juvenile’s rights.

For more, please check out the other pages on the Gault at 50 series on this site and the “On the Civil Side” blog by Professor LaToya Powell.

All About Gault: Updates, Talking Points, & Reminders

The countdown to “Gault at 50″ continues (less than 3 weeks to go!) and to keep everyone up-to-date, we’ve got a few reminders, tutorials and talking points to share below:

G50

  • For anyone who would like to give a digital or personal presentation, below is a detailed but concise explanation of Gault (feel free to personalize it if you wish):

 

“On May 15, 1967, the U.S. Supreme Court granted due process rights to children in the landmark case of In re Gault, 387 U.S. 1 (1967). The case involved 15-year-old Gerald Gault, who was taken into police custody without notice to his parents, held for four days, and committed to a juvenile facility for a maximum of six years for making a prank phone call to his neighbor. He received no prior notice of the charges and was adjudicated delinquent following an informal hearing with a judge without any witnesses or representation by counsel. His case would spark outrage today but was the norm for juvenile proceedings at the time. When the Supreme Court reversed Gault’s adjudication, it transformed the nature of juvenile court by defining basic requirements of due process that now apply to all delinquency hearings. These rights include:

  • the right to notice of the charges;
  • the right to an attorney;EZ & Gault at Commission on IDS
  • the right to remain silent; and
  • the right to confront and cross-examine witnesses.”

(Also if you do choose to create a presentation, be sure to email or Tweet pics or video/audio clips to us to share with the community!)

 

“The Improper Use of Electronic Monitors in Juvenile Court” by Guest Blogger Mitchell Feld

Mitch

You meet your new client for the first time for the first detention hearing as the child was detained on a low-level felony or misdemeanor.  The recommendation is for the child to be released on an electronic monitor.  Your client hears that and says that he/she is willing to get out of detention on an “ankle bracelet.”  The short-term victory is your client is happy because he/she got released and you look like the great lawyer who walked into court and got your client released.  However, did you truly do a service to your client and other children in juvenile court?

We have all been in the situation described above and accept the offered release conditions because it satisfies the wishes of your client.  However, how often do we ask if electronic monitoring is appropriate while still arguing for our client’s expressed interest to be released?  Electronic monitoring is a common release condition for adult court and by accepting it as a release condition for children in juvenile court in all situations mares the difference between juvenile and adult court.  What is amazing about the utilization of electronic monitoring in juvenile court is when it is used when it is not necessary and when it is not used when it is necessary.  There are a few situations that truly highlight these two types of scenarios and the rationale behind its appropriateness or lack thereof.

My office has had numerous children who are detained on misdemeanors or low-level felonies, they comply with curfew and rules put in place by the parent/guardian, they attend school daily, and they have a social history that is absent any red flags.  Court counselors frequently ask for a child to be released on electronic monitoring due to the serious nature of a child having a felony charge.  While one can appreciate that a felony is a serious offense, we must inquire about the virtue of an electronic monitor and whether this child is truly a danger to property or persons as is one of the criteria under N.C.G.S 7B-1903(b)(1).  Merely being charged with a felony does not mean a child is a danger to property or persons and making an argument against continued detention or release on electronic monitoring is a necessary argument.  Children that are charged with possession of drugs that rise to a low-level felony, possession of stolen goods merely because the child was given property from a B&E, or assault-based offenses are not necessarily appropriate for a monitor due to the lack of correlation between the charge and the need for 24/7 supervision.  Possession of a drug or property, while serious and concerning, does not mean that the person needs to be supervised at all times without other factors present.  If someone is charged with assault (either physical or sexual), an electronic monitor serves no purpose to prevent a future attack.  All a monitor would do in an assault situation is provide confirmation that a person was present should another attack occur, but would not actually prevent an attack.  While these situations can be concerning to a victim, judge, or prosecutor, we still need to balance the purpose of a monitor with the juvenile court-to-prison pipeline that is created by imposing adult court conditions on children.

While those situations are ones that are self-explanatory for when a monitor is not necessary, there are also situations when a monitor is refused when it can be appropriate for a child to be released.  My favorite situation that arises in court is when a court counselor said that child was denied for electronic monitoring because he/she has an AWOL history.  At that point I want to turn to the court counselor and do my best Biff impression from Back to the Future and say, “Hello, McFly!  Think, McFly, think!”  I have made the argument to judges that if a monitor is only used for children who comply with a curfew and we know where they are at all times, then what is the purpose of the monitor?  If children have a history of going AWOL, not following a curfew, or leaving school without permission, then a monitor can serve a purpose to ensure the child thinks twice before making that negative decision knowing big brother is watching at all times.  No one wants to see a child with an electronic device strapped to his/her ankle at all times, but if it serves as a behavior modification technique, causes the child to think twice about a decision, and stops the prior behaviors that led them to juvenile court, then the use of the device is appropriate.

There is also the situation when court stakeholders believe that because your client committed one breaking and entering, he/she committed all of them.  I have had numerous clients that, to their credit and honesty, will gladly tell you which crimes they committed and which ones they did not.  The monitor has been useful to show a judge and prosecutor that just because there was enough evidence for one case, does not justify bringing charges for another because the child’s monitor did not show his/her presence at the scene of another crime.  As stated above, I do not like to see a child on a monitor but there are times when its presence can be utilized to demonstrate your client’s innocence.

While juvenile court has been around for a number of years, in light of where it has come in the past 50 years since In re Gault, there are still a number of practices that are not juvenile court practices, but rather applied adult court practices.  While it is easy to accept those practices as that may be all we have, we must be diligent to challenge their utilization and appropriateness when they are not right for children.  When you believe you have nothing else to argue, it is easy to go back to N.C.G.S. 7B-1500 and argue that rehabilitation and constitutional rights for children are always at the heart of what juvenile court is about.  Children may be focused on the short-term win, but we need to be thinking about the long-term effects.  The arguments we make today will become best practices in the years to come.

Mitchell Feld is the Director of Children’s Defense at the Council for Children’s Rights representing children in delinquency and mental health commitment matters.  Mr. Feld obtained his undergraduate degree from Lafayette College in Easton, Pennsylvania in 2005 and his J.D. degree from the University of Miami School of Law in 2008.  Mr. Feld is a member of the North Carolina Bar and the Western District of North Carolina.  He has served as the Chair and Vice Chair of the Juvenile Law Section of the Mecklenburg County Bar and currently serves on the Mecklenburg County Bar Grievance Committee.  Mr. Feld has lectured at the local, state, and national level on juvenile case law, interviewing children, sex offenses and registration, motions practice, and delinquency advocacy.