Interrogations of Children
National statistics would readily support the claim that, in the last decade, children are increasingly involved in more serious crimes. It no longer shocks the average listener to learn that a 12-year-old shot and killed his teacher, two 13-year-old boys gang raped a girl after a school dance or a 14-year-old robbed a classmate of his lunch money at knife point. Along with these incidents are reports alleging that police obtained false confessions from children involving very serious crimes. We have been consulted on a number of such cases. In our opinion, some of them were clearly truthful confessions while others were probably false.
Several myths exist within the uninformed public concerning crimes committed by children. One is that, because of limited cognitive abilities, a child guilty of a crime would readily confess after a short period of questioning. If anything, children are more resilient in maintaining and selling lies than a socially responsible adult. A related myth is that children are unable to comprehend the consequences of their crime. While the concept of long-range times, such as a 10 to 15 year prison sentence, may be incomprehensible in an eleven-year-old’s mind, the child has enough awareness of future consequences associated with his crime to lie about it. After all, if a child believed that it was alright to set fire to his 5th grade teacher’s car he would readily admit to the arson. Finally, experienced adolescent criminals are very aware of the juvenile criminal justice system. The belief that, as a juvenile, the worse thing that might happen to them is supervision or probation offers an incentive to fight the system and force the government to prove its case, i.e., not confess. Under this circumstance, when a juvenile is waived to adult court and now faces serious consequences, there is public outrage that the prosecution did not try hard enough to offer a plea bargain which would have given the juvenile a chance at rehabilitation and a productive life.
The preceding, of course, applies only to the child who is guilty of a crime. A professional investigator must conduct his interviews and interrogations always with the possibility in mind that the suspect may be innocent. In this regard, the common-sense guideline offered by professor Fred Inbau should be heeded, “Could what I am about to do or say cause an innocent person to confess?” This guideline does not refer to an innocent person in general, but the person presently sitting in front of the investigator. Consequently, even if a juvenile is being interrogated on the issue of homicide, the investigator must appreciate that he or she is still a child.
A general distinction can be made between childhood (1 – 9) and adolescence (10 – 15). While both groups will be motivated to lie to avoid consequences associated with acts of wrong-doing, psychologically they are operating at quite different levels. It is our general recommendation that a person under the age of 10 should not be subjected to active persuasion techniques during interrogation (themes, alternative questions). At this age the child is susceptible to suggestion and is motivated to please a person in authority. The interaction between the investigator and child should be limited to a question and answer session which is centered on factual information and simple logic. While children in this age group generally have good memory skills, it is selective and the investigator must be cautious in forming opinions of deception based on inconsistent recall. In this younger age group the primary difficulty with respect to interrogation is the child’s undeveloped level of social responsibility and inability to comprehend the concept of future consequences; their lives focus around “here and now” concepts.
On the other hand, most adolescents have developed a sense of social responsibility to the extent that they know if they admit committing a serious crime they will suffer some future consequence. For this reason a confrontational interrogation may be used with this age group involving some active persuasion. The extent of persuasive tactics should not be dictated by the seriousness of the crime, but rather the maturity of the child.
In general, courts have not established steadfast rules regulating the admissibility of confessions offered by children. Rather, they look at the totality of circumstances including the child’s age, maturity, intelligence and previous experience with authority. Some states have passed statutory requirements affecting the interview or interrogation of juvenile suspects. In some states a parent or guardian must either give permission to allow their child to be interviewed or permitted to be present during the interview. Other states require legal representation when interviewing a child who has become the focus of an investigation. Investigators, therefore, should be familiar with respective state laws which may impact on their interview or interrogation of a child in their state.
When a child is taken into custody and advised of his or her Miranda rights, the question of whether the child is capable of making a knowing and voluntary waiver of those rights may arise. Certainly a child under the age of 10 is incapable of fully understanding the implications of waiving Miranda rights. Younger adolescents also may fall into this category. When older adolescents waive their Miranda rights, it may be helpful to have the suspect repeat back to the investigator what the rights mean. This insight will help the court decide if the waiver was valid.
Courts routinely uphold the use of trickery and deceit during interrogations of adult suspects who are not mentally impaired. Within the area of trickery and deceit, clearly the most persuasive of these tactics is introducing fictitious evidence which implicates the suspect in the crime. Because of its persuasive impact, this tactic should not be used during questioning of children under the age of 10. Caution should be exercised when introducing fictitious evidence during the interrogation of an adolescent. Factors such as the adolescent’s level of social responsibility and general maturity should be considered before fictitious evidence in introduced.
The ultimate test of the trustworthiness of a confession is its corroboration. The admissions, “I shot and killed Mr. Johnson” or, “I forced Susie Adams to have sex with me” may be elicited from an innocent juvenile (or adult) suspect. These admissions only become useful as evidence if they are corroborated by (1) information about the crime the suspect provides which was purposefully withheld from the suspect, and/or, (2) information not known by the police until after the confession which is subsequently verified.
It must be recognized that historically innocent people have confessed to crimes they did not commit. A disproportionate number of these suspects are children and mentally impaired adults. While the exposure of a false confession is always detrimental, the stigma attached to a law enforcement agency that allegedly induced a false confession from a child is tremendous. Consequently, the interviews and interrogations of child suspects should be conducted by investigators trained in that area of expertise with the admonition that an uncorroborated confession, especially by a juvenile, is likely to be suppressed.