The landmark 1967 Supreme Court decision In re Gault involved a 15-year-old sentenced by a juvenile court to serve six years in an industrial school for making a prank phone call. The court agreed to decide whether the procedures used to adjudicate Gerald Gault conformed to the due process protections afforded under the 14th Amendment.
The court held that young people alleged to have committed an offense must receive notice of the charges filed against them and be informed of their right to counsel, as well as the right to cross-examination and protections against self-incrimination.
However, more than 50 years after the Gault decision, gaps in procedural due process protections remain.
Many young people might not realize they have a right to remain silent and that they might not have to talk to anyone until a parent or attorney arrives.
When law enforcement officers question a young person in custody, it is called custodial interrogation. In many states, lawyers are not guaranteed for every child during police interrogation, and most states allow children to waive their right to legal counsel—even if they are unclear about what that means.
Many young people might not realize they have a right to remain silent and that they might not have to talk to anyone until a parent or attorney arrives. Young people who are intimidated or influenced during a custodial interrogation can face long-term consequences, including being coerced into false confessions or agreeing to a plea that they do not understand.
Some of a young person’s conduct during custodial interrogation can be explained by neuroscience.
Brains Still Developing
Minors are particularly susceptible to self-incrimination and relinquishing legal rights because the prefrontal cortex—the region of the brain responsible for reasoning, planning and considering long-term consequences—does not fully develop until age 25.
In exonerated cases where the person was under 18 at the time of the crime, 34% involved a false confession, according to the National Registry of Exonerations. On the other hand, only 10% of exonerated adults falsely confessed.
Aligning juvenile policy with the latest developmental science as well as recommendations made by the International Association of Chiefs of Police, some state legislatures are enacting laws that strengthen the due process rights of juveniles during one of the most critical stages of the justice continuum.
In Delaware, Illinois, Oregon and Utah, law enforcement cannot use deceptive tactics such as making false claims about evidence or promising leniency when questioning a minor. Nevada is among the states to have enacted other safeguards, such as requiring police officers to read a simplified version of Miranda rights to young people during interrogations. Utah passed a similar bill earlier this year. Some states, including California, Illinois, Maryland and Washington, have adopted legislation to mandate that youth speak to a defense attorney before waiving their Miranda rights.
Also during the 2023 legislative session, three states—Colorado, Indiana and Nevada—enacted laws making a young person’s statement inadmissible if deceptive tactics are used during questioning.
Colorado’s specifically requires that the interrogation be recorded and makes a $37,500 appropriation to develop a training program for officers who interact with juveniles during interrogations.
“Young people process things differently,” says bill sponsor Rep. Jennifer Bacon (D). “Their relationships to adults matter. The way they understand authority and understand the impact to their own liberty is not the same as an adult.”
Opponents of the bill argued that use of deception during questioning can be an important tool in solving a crime. Referring to juveniles suspected of having committed serious offenses, Colorado Rep. Gabe Evans (R) says, “They’re not just going to come out at the second question law enforcement asks and say, ‘Yes, I did it.’ We have to have those tools to be able to gain the truth.” The legislation passed 44-18 in the House and 23-11 in the Senate.
The American Bar Association has adopted a resolution urging federal, state, territorial and local lawmakers, as well as government agencies, to develop and use simplified Miranda rights language when engaging with young people during custodial interrogations. (The International Association of Chiefs of Police has endorsed a variety of sample juvenile Miranda warnings.)
For more on juvenile interrogation:
Kate Bryan is a policy specialist in NCSL’s Criminal and Civil Justice Program.