In the Matter of Jimmy D., a Person Alleged to be a Juvenile Delinquent / Presentment Agency
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 157
In the Matter of Jimmy D., a
Person Alleged to be a Juvenile
Delinquent,
Appellant.
------------------Presentment Agency,
Respondent.
Raymond E. Rogers, for appellant.
Susan B. Eisner, for respondent.
PIGOTT, J.:
Appellant, Jimmy D., was 13 years old when his 9-yearold cousin reported to family members that Jimmy had sexually
abused her.
Jimmy's mother took both children to a hospital,
where the police were called.
A detective from the special
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victims' squad arrived and arranged for Jimmy, his mother, his
cousin, and the cousin's mother to be taken to a child advocacy
center.
After initially being placed in separate rooms, Jimmy
and his mother sat together in a closed-door waiting room while
the detective interviewed the cousin and her mother.
The girl
described an incident of sexual abuse that had occurred earlier
that evening.
She added that she was afraid of Jimmy because he
had sexually abused her one afternoon four months earlier.
The detective took Jimmy and his mother to a juvenile
interview room, where she explained the allegations against him
and read Miranda warnings to Jimmy in English and to his mother
in Spanish, according to their preferences.
The version of the
Miranda warnings that the detective read to Jimmy, designed for
use with juveniles, explains each of the rights in simple
language.
Each time one of the rights was stated, Jimmy
responded, without hesitation, that he understood the right; the
same was true of his mother.
Jimmy's mother also reread the
warnings herself and both Jimmy and his mother signed the Miranda
waivers.
The detective asked Jimmy's mother, in Spanish, for
permission to speak with him alone, adding that children
sometimes do not feel comfortable talking to a detective in front
of a parent.
The mother did not respond immediately, but after
Jimmy consented to talk with the detective alone, the mother
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agreed, and left the juvenile interview room.
The detective told Jimmy that he should tell her
exactly what had happened, adding that, if he did so, he would
get "some help," if he needed it.
As the detective later
recalled the conversation, she indicated that he would be able to
get psychiatric or counseling help, if necessary.1
Faced with
his cousin's accusations regarding the earlier incident, Jimmy
admitted to sexual contact with his cousin.
The detective told
Jimmy to write what he had done in his own words, gave him pen
and paper, and left the room.
In a handwritten statement, which
he composed while alone in the interview room, Jimmy admitted to
a series of sexual contacts with his 9-year-old cousin.
Jimmy and his mother were reunited, and he read his
confession to her.
At this point, according to Jimmy's mother,
she understood her son to say that the detective had told him
that she would help him only if he wrote a statement admitting to
sexual conduct.
The mother and the detective exchanged words,
with the detective insisting that she had simply told Jimmy to
write down in his own words exactly what he had done.
Jimmy was
then arrested.
A juvenile delinquency petition was filed in Family
1
It is true, as the dissent points out, that her testimony
also contains confusing references to a "lawyer," but there is no
basis in the record for inferring that Jimmy was led to believe
that he would have to confess if he wanted to be represented by
counsel; he had just been told, in unequivocal terms, that he
could have a lawyer without charge if he wanted one.
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Court, supported by a sworn statement of Jimmy's cousin.
When
the presentment agency gave notice that it intended to introduce
his confession, Jimmy moved to suppress the statement.
Following
a suppression hearing, Family Court denied the motion.
Following a fact-finding hearing, Family Court ruled
that Jimmy had committed acts that, if committed by an adult,
would have constituted the crimes of first-degree criminal sexual
act, third-degree criminal sexual act, sexual misconduct, seconddegree unlawful imprisonment, second-degree course of sexual
conduct against a child, attempted first-degree sexual abuse, and
attempted third-degree sexual abuse.
Family Court adjudicated
Jimmy a juvenile delinquent and placed him on probation for 18
months, conditioned on cooperation with sex offender counseling.
At the Appellate Division, Jimmy argued, among other
things, that the presentment agency had not met its burden of
proving the voluntariness of his confession.
The Appellate
Division modified Family Court's order by dismissing the sexual
misconduct and unlawful imprisonment counts, but otherwise
affirmed, rejecting Jimmy's voluntariness challenge.
We granted
Jimmy leave to appeal and now affirm.
When a police officer takes a child under the age of 16
into custody for juvenile delinquency, the officer must
"immediately notify the parent or other person legally
responsible for the child's care, or if such legally responsible
person is unavailable the person with whom the child resides,
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that the child has been taken into custody" (Family Court Act §
305.2 [3]).
The child must be advised of his Miranda rights and,
if the parent or other person in loco parentis who was notified
of the arrest (henceforward "parent") is present, that person
must be similarly apprised (Family Court Act § 305.2 [7]).
Recognizing that special care must be taken to protect
the rights of minors in the criminal justice system, New York
courts carefully scrutinize confessions by youthful suspects who
are separated from their parents while being interviewed.
In
People v Bevilacqua, we held that the "continuous, unusual, and
deliberate isolation" of an 18-year-old from potential avenues of
assistance from his family or other supportive adults required
suppression, as a denial of the right to counsel (People v
Bevilacqua, 45 NY2d 508, 514-515 [1978]; see also People v Kern,
149 AD2d 187, 217 [2d Dept 1989]; People v Ventiquattro, 138 AD2d
925, 929 [4th Dept 1988]).
Similarly, in People v Townsend, we
ruled that a confession must be suppressed if it was obtained
from a child under the age of 16 after the police ensured by
means of deception and trickery that the child's parents would
not take steps to retain a lawyer (People v Townsend, 33 NY2d 37,
41-42 [1973]).
In light of these statutory and common law principles,
we reiterate that, when a parent is present at the location in
which a child under the age of 16 is being held in custody, the
parent must not be denied "an opportunity to attend [the]
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custodial interrogation" (People v Mitchell, 2 NY3d 272, 275 n 11
[2004] [emphasis added]).
In practical terms, this means that
the parent of the child has the right to attend the child's
interrogation by a police officer, and should not be discouraged,
directly or indirectly, from doing so.
The better practice for
the interviewing officer or detective is to inform the parent
that the parent may attend the interview if he or she wishes.
Of
course, a parent may choose not to be present when a child is
being interviewed, but the police should always ensure that the
parent is aware of the right of access to his or her child during
questioning.
If a parent is asked to leave, the parent should be
made aware that he or she is not required to leave.
The advantages of having a parent present during
custodial interrogations are many.
A parent may help a child
understand the Miranda warnings, so that the child can
consciously and voluntarily choose whether to waive or to
exercise his constitutional rights to remain silent, to have an
attorney present at his questioning, and to have an attorney
provided for him without charge if he is indigent.
As we have
noted, juveniles charged with delinquency may not fully
"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"
(Mitchell, 2 NY3d at 275).
If the child chooses to
waive his rights under Miranda, the parent who is present at
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questioning is able to monitor the interrogation lest the police
engage in coercive tactics.
In short, "[t]he emotional and
intellectual immaturity of a juvenile creates an obvious need for
the advice of a guardian . . . at an interrogation from which
charges of juvenile delinquency may ensue" (In re P., 70 AD2d 68,
71 [2d Dept 1979]).
However, it does not follow as a matter of law that a
child's confession obtained in the absence of a parent is not
voluntary.
Neither the Family Court Act nor our precedent
interpreting that statute give a child under 16 years the
absolute right to the presence of a parent during interrogation.
In fact, the Family Court Act expressly contemplates the
possibility that the police may be unable to contact the parent
of a child in custody, despite "every reasonable effort" (Family
Court Act § 305.2 [4]), or that a notified parent may be unable
or unwilling to be present at the location of custody (see Family
Court Act § 305.2 [7]).
Moreover, whether a confession was,
beyond a reasonable doubt, voluntary is a mixed question of law
and fact (see e.g. People v Scott, 86 NY2d 864, 865 [1995]), and
is to be determined from the "totality of circumstances" (People
v Tankleff, 84 NY2d 992, 994 [1994], quoting People v Williams,
62 NY2d 285, 289 [1984]).
Because voluntariness is a mixed question of law and
fact, our review is limited to deciding whether the Appellate
Division's finding is supported by evidence in the record.
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the present case, Jimmy and his mother were not so isolated from
one another at the child advocacy center as to affect the
likelihood that his confession was voluntary.
Jimmy's mother
accompanied him to the center, and mother and son had an
opportunity to talk there, when they were waiting together alone
in the closed-door waiting room.
Jimmy's mother was present
during the waiver of his Miranda rights.
Both Jimmy and his
mother agreed to his being questioned outside his mother's
presence, and there is no evidence that Jimmy asked for her
during the questioning; nor were Jimmy's whereabouts concealed
from his mother.
The detective took care to read a version of the
Miranda warnings that explains the rights in simple language.
Both Jimmy and his mother responded unhesitatingly when asked
whether they understood each right waived.
Although Jimmy was
doubtless tired, there is no evidence that he asked for food or
water and was denied it.
Finally, nothing in Jimmy's handwritten
confession suggests that it does not express his own
recollections.
The detective's promise of "help" did not give rise to
any "substantial risk that the [Jimmy] might falsely incriminate
himself" (Family Court Act § 344.2 [2] [b] [I]).
There is no
evidence in the record that the detective's promise would have
deceived Jimmy into thinking that if he confessed he would escape
unprosecuted or unpunished (cf. People v Holland, 48 NY2d 861,
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Rather, there is evidence in the record that the
detective told Jimmy that if he was truthful and told everything
that had happened, he would receive psychiatric help or
counseling if needed.
Jimmy was not offered an incentive to lie;
there is no attraction in making a false confession and receiving
psychiatric assistance relating to a crime one did not commit.
The dissent, while acknowledging the validity of
Jimmy's initial waiver (dissenting op at 5), relies on a novel
theory: that the validity of the waiver was vitiated by police
misconduct that occurred after the waiver (id. at 5-6: "any
representation in the course of the interrogation tending to
impair the interrogee's understanding of the consequences of his
or her continuing waiver must be deemed to invalidate the waiver
and render the product of consequent interrogation
inadmissible").
The dissent does not suggest that Jimmy was
tricked or coerced into his initial waiver, or that Jimmy later
invoked his rights and failed to waive them a second time.
Nor
does the dissent adopt the theory actually advanced by Jimmy -that misconduct following the valid waiver rendered his
subsequent confession involuntary.
Rather, the dissent suggests
that, due to misconduct by the police, Jimmy stopped
understanding his rights and thereby un-waived them.
The two cases that the dissent cites in support of this
theory, Moran v Burbine (475 US 412 [1986]) and United States v
Anderson (929 F 2d 96 [2d Cir 1991]), actually contradict it.
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Moran, the defendant argued that police misconduct following his
valid Miranda waiver -- lying to an attorney who sought to
intervene in defendant's interrogation -- retroactively vitiated
that waiver.
But the Supreme Court found that idea "untenable as
a matter of both logic and precedent" (475 US at 422).
Similarly, in Anderson, the district court found that post-waiver
"trickery" retroactively undermined a Miranda waiver, making it
impossible to find that defendant voluntarily waived his rights,
but the Second Circuit held otherwise: "Though the 'trickery'
premise is correct, the district court's conclusion respecting
the 'impossibility of a waiver' is not" (929 F2d at 98).
The
Second Circuit then appropriately addressed whether the postwaiver "trickery" had rendered defendant's confession involuntary
(id. at 100-102).
In accordance with Moran and Anderson, we hold
that, since Jimmy's Miranda rights were validly waived and never
re-invoked, the issue is voluntariness, not waiver.
We conclude that there is evidence in the record
supporting the findings of the lower courts that the presentment
agency met its burden of proving the voluntariness of Jimmy's
inculpatory statement beyond a reasonable doubt.
This mixed
question of law and fact is therefore beyond our further review.
Accordingly, the order of the Appellate Division should
be affirmed, without costs.
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Matter of Jimmy D. (Anonymous), A Person Alleged to be a Juvenile
Delinquent
No. 157
LIPPMAN, Chief Judge(dissenting) :
The majority has set forth with commendable clarity
what the law of this State requires when a parent of a child
under the age of 16 is available for and wishes to be present at
the child's interrogation by a police officer: "the parent . . .
has the right to attend the child's interrogation . . .
and
should not be discouraged, directly or indirectly, from doing so"
(majority opn at 6).
And, with equally commendable clarity, the
majority has explained why such attendance is advantageous to the
child and ultimately to the sound administration of justice: the
parent can help the child understand the Miranda warnings and
monitor any subsequent interrogation to deter and, if necessary,
bear witness to any official overreaching.
As the majority
notes, we have previously recognized that juveniles "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"
(People v
Mitchell, 2 NY3d 272, 275 [2004]); and, in view of the
acknowledged "emotional and intellectual immaturity of
juvenile[s]," the majority now appropriately reiterates that
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there is an "obvious need for the advice of a guardian . . . at
an interrogation from which charges of juvenile delinquency may
ensue" (majority opn at 6-7, quoting Matter of Michelet P., 70
AD2d 68, 71 [2d Dept 1979] [internal quotation marks omitted]).
It is not disputed that respondent Jimmy D.'s mother
was available and wished to be present during her son's
interrogation, and it is clear that her exclusion was not in
accord with what the Family Court Act requires in such
circumstances.
The majority, however, declines to suppress
Jimmy's confession on this ground.
While I agree that the
exclusion of a parent from the interrogation room should not
invariably dictate the suppression of a subsequently obtained
juvenile confession, I cannot agree that the exclusion of the
parent in this case, when viewed in the context of the ensuing
interrogation, should be deemed benign.
Indeed, the tactic
employed by the detective once the mother had been excluded
cannot be viewed except as having vitiated the waiver of rights
essential to the admissibility of Jimmy's confession.
Although presented practically as an afterthought by
the majority, it would appear crucial to the decision of the
respondent's suppression motion that, after the mother complied
with the detective's request to leave the room, the detective,
upon encountering resistance from Jimmy, represented to him that
he could be helped if he confessed.
The detective testified: "I
told him he needs to tell me exactly what happened and this way
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if he needed some help, we would try to get him some help."
When
pressed as to what sort of "help" she had been referring to, the
detective elaborated, "I explained to him that he would have to
come to court and the lawyer that he would get [t]here would try
to get him help."
When asked whether she meant that Jimmy could
get help from a lawyer if he made a statement, the detective
replied "[t]he help I was telling him was if the lawyer can help
him out, get him some help.
In other words, if he needed to see
someone, you know, whether it was a psychologist or counseling
with regards to what he had done."
Upon being requested to
clarify whether she had suggested to Jimmy that if he confessed,
he would get help from a lawyer in court, the detective said, "I
told him to write what he did in his way in his own words and I
says maybe they can get you some help."
When she was again
requested to state whether she had indicated that the
availability of a lawyer depended upon Jimmy giving a confession,
she answered "I'm not sure if I said lawyer. I could have said
it.
I'm not sure."
Shortly after these representations were
made, Jimmy made an admission.
He was then told that "he would
have to write everything that he said he did on paper because it
wasn't right what he did."
Jimmy complied, delivering a written
statement to the detective at 12:35 AM.
The thirteen year-old
had by then not eaten, or been offered food, in over seven hours
and had been without sleep since the early morning of the
previous day.
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The threshold issue in judging the admissibility of
Jimmy's custodial confession in this post-Miranda era is not, as
it would have been before Miranda, whether under the totality of
the circumstances the confession itself was voluntary in the
sense of being uncoerced, or whether it was elicited by means of
representations raising a substantial risk of false incrimination
in contravention of Family Court Act § 344.2 (2) (b) (i), but
whether the confession was obtained in pursuance of a valid
waiver of rights.
Since Miranda v Arizona (384 US 436 [1966]),
of course, the admissibility of a custodial confession depends
upon the government's proof of an antecedent waiver of the right
against self incrimination and, relatedly, the right to the
assistance of counsel during interrogation: "If the interrogation
continues without the presence of an attorney and a statement is
taken, a heavy burden rests on the government to demonstrate that
the defendant knowingly and intelligently waived his privilege
against self-incrimination and his right to retained or appointed
counsel" (id. at 475).
Consistent with, indeed practically
entailed by, the Court's requirement of proof of a knowing and
intelligent waiver was its dictum that "any evidence that the
accused was threatened, tricked, or cajoled into a waiver will,
of course, show that the defendant did not voluntarily waive his
privilege" (id. at 476).
Since Miranda, the nature of the judicial inquiry it
requires, focusing on the validity of the precedent waiver rather
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than on the voluntariness of the ensuing confession, has been
repeatedly reaffirmed.
In Moran v Burbine (475 US 412, 421
[1986]), for example, the Court observed
"Echoing the standard first articulated in
Johnson v Zerbst, 304 US 458, 464 (1938),
Miranda holds that '[the] defendant may waive
effectuation' of the rights conveyed in the
warnings 'provided the waiver is made
voluntarily, knowingly and intelligently.'
384 US, at 444, 475. The inquiry has two
distinct dimensions. Edwards v Arizona,
supra, at 482; Brewer v Williams, 430 US 387,
404 (1977). First, the relinquishment of the
right must have been voluntary in the sense
that it was the product of a free and
deliberate choice rather than intimidation,
coercion, or deception. Second, the waiver
must have been made with a full awareness of
both the nature of the right being abandoned
and the consequences of the decision to
abandon it. Only if the 'totality of the
circumstances surrounding the interrogation'
reveals both an uncoerced choice and the
requisite level of comprehension may a court
properly conclude that the Miranda rights
have been waived. Fare v Michael C., 442 US
707, 725 (1979). See also North Carolina v
Butler, 441 US 369, 374-375 (1979)."
Although the Miranda warnings initially given to Jimmy
and his mother appear to have been adequate and the immediately
ensuing waiver of rights valid, those circumstances are not on
this record conclusive of the validity of the waiver when Jimmy's
confession was given.
It is basic, and evident from the mandated
warnings themselves, that a person subject to custodial
interrogation may, his or her initial waiver notwithstanding, at
any juncture in the questioning reassert his or her right to
remain silent and to consult an attorney.
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It follows that any
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representation in the course of the interrogation tending to
impair the interogee's understanding of the consequences of his
or her continuing waiver must be deemed to invalidate the waiver
and render the product of consequent interrogation inadmissible,
unless the representations are conclusively shown not to have
clouded the interogee's comprehension of the basic risks entailed
by continued participation in the interrogation (see Moran v
Burbine, supra; see e.g. United States v Anderson, 929 F2d 96 [2d
Cir 1991]).
Although the majority finds this theory "novel," it is
as old as Miranda itself, which plainly conditions the validity
of an interogee's continuing waiver of rights upon the absence of
"any evidence that the accused was threatened, tricked, or
cajoled into [the] waiver" (384 US at 476 [emphasis supplied]).
The majority's evident insistence that subsequent to the initial
waiver, the question of whether the waiver remains valid is
supplanted by an inquiry into the voluntariness of any ensuing
confession, is simply not compatible with the basic waiver theory
upon which Miranda rests.
As Professor Berger has observed:
"waiver is and should remain an issue
distinct from the question of compulsion
under the fifth amendment. Miranda created a
system of warnings and waiver to protect
against the inherently coercive environment
of custodial interrogation. Its predecessor,
the voluntariness test, had proven to be
ineffective in regulating police
interrogation practices. The Miranda Court
clearly did not intend to replace the
voluntariness test under the fourteenth
amendment with the compulsion standard of the
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fifth amendment, without any substantive
change in the analysis. This would only have
made voluntariness and compulsion the flip
sides of the same coin. Voluntary confessions
would be those obtained without compulsion,
while compelled statements would be
considered involuntary. Instead, Miranda
rejected this rather meaningless exchange of
constitutional language in favor of a
substantive reworking of admissibility
criteria . . . Under Miranda, waivers must be
voluntary, intelligent and knowing, not just
obtained in an atmosphere free of compulsion"
(Berger, Compromise and Continuity: Miranda
Waivers, Confession Admissibility, and the
Retention of Interrogation Protections, 49 U
Pitt L Rev 1007, 1053 [1988]).
Contrary to the majority's view, the continuing
validity of a Miranda waiver is not a non-issue after the waiver
has first been made, even in the absence of the waiver's
retraction.
Logically, every response made during a custodial
interrogation is a reaffirmation of the original waiver (see Dix,
Promises, Confessions, and Wayne LaFave's Bright Line Rule
Analysis, 1993 U Ill L Rev 207, 255-256 ["a suspect has the right
after initially waiving counsel to change his mind and invoke the
right. A suspect's failure to do this during interrogation is a
continuing reaffirmation of his earlier waiver. In a very real
sense, a promise made after an initial waiver of counsel may
effectively influence a suspect to 'reaffirm' that waiver by
failing to demand the right to consult with an attorney before
matters go further"]).
If the terms of the waiver have by the
time of the reaffirmation been misleadingly altered, as they were
here, the waiver is no longer valid; the burden cannot be upon
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No. 157
the misled interrogee to reassert rights the nature and
dimensions of which have, since the initial waiver, been
inaccurately or confusingly portrayed.
Of course, nothing in
either Moran or Anderson can be understood to impose such a
manifestly unfair burden.
Here, it would appear clear, even from the detective's
less than transparent account of what she told Jimmy, that when
she spoke to Jimmy alone, she made representations significantly
at odds with those upon which his waiver had, in his mother's
presence, been permissibly based.
The detective made repeated
offers of "help," but at the same time advised Jimmy that he
would have to provide a written statement before "help" could be
afforded.
The child had been warned only minutes before that
"[a]nything you say can and will be used against you in a Court
of Law.
That means what you say or write can be used to prove
[w]hat you may have done."
Now, however, he was told something
dramatically different -- that an admission could be helpful to
him and, indeed, that help was contingent upon an admission.
When pressed as to what she meant by "help," the detective
indicated psychological counseling or legal assistance.
neither was contingent upon a confession.
But,
Jimmy was absolutely
entitled to an attorney; it was a gross distortion, again
fundamentally at odds with the rights just recited, to intimate
that legal assistance in any way depended upon the giving of a
statement; and it is obvious, except perhaps to a child, that a
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confession to criminal wrongdoing is not a condition of access to
psychological counseling.
Although courts, despite Miranda's apparently
categorical injunction against threats, trickery and cajolement
(384 US at 476), have held that misrepresentations not bearing
directly upon the basis of the required waiver will not
necessarily invalidate it,1 "there is an absolute prohibition
upon any trickery which misleads the suspect as to the existence
or dimensions of any of the applicable rights or as to whether
the waiver really is a waiver of those rights" (2 LaFave, et al.,
Criminal Procedure § 6.9[c], at 827-828 [3d ed] [collected cases
omitted]).2
Perhaps an experienced adult would not have been misled
1
In Moran, for example, the misrepresentations alleged to
vitiate the Miranda waiver were not made to the defendant and,
thus, could not have affected his decision to relinquish his
rights (475 US at 422).
2
It is true that in United States v Anderson, supra, the
Court, although acknowledging that post-waiver trickery could
affect the continuing validity of a waiver - the proposition for
which the case is above cited - declined to adopt a per se rule
that any trickery would vitiate a waiver, as had the District
Court. However, upon de novo review, the Second Circuit went on
to hold, as a matter of law, that the misrepresentations there at
issue were materially misleading and thus that Anderson's waiver
had been fatally compromised, rendering his subsequently obtained
statements involuntary. Although the holding is couched in terms
of voluntariness, it is clear that the focus of the Court's
analysis was upon whether the defendant's waiver of rights had
been voluntary under the standard enunciated in Miranda and Moran
(see 929 F2d at 100-101).
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by representations such as those made by the detective to Jimmy3
-- but we deal here with a child, and to all appearances a very
unsophisticated one with no prior involvement with the juvenile
justice system, improperly deprived of parental support and
guidance at a time when it would have been crucial to the
protection of his interests.
Upon the undisputed facts of this
record, I see no way of concluding that the Presentment Agency
met its "heavy" burden to demonstrate that Jimmy had "knowingly
and intelligently waived his privilege against self-incrimination
and his right to retained or appointed counsel" (Miranda, 384 US
at 475) when he made his confession.
The facts before us simply
do not permit the properly dispositive legal conclusion that this
child, at the time he confessed, had the "requisite level of
comprehension" "both [of] the nature of the right being abandoned
and the consequences of the decision to abandon it" (Moran, 475
US at 421).
While the truth or falsity of Jimmy's confession
appears unascertainable, it does seem clear that the
circumstances attending its exaction -- i.e., a tired and hungry
child isolated with an experienced interrogator in the middle of
the night and offered illusory inducements to confess to
specifically described allegations of wrongdoing -- are precisely
3
It is noted, however, that even highly experienced adults
can be materially misled subsequent to an initial valid waiver.
In Anderson, for example, the defendant had, by the time of the
interrogation there at issue, been arrested twelve times and
entered eleven guilty pleas (929 F2d at 99).
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the sort that do produce false confessions, particularly in the
young teen age group.4
If an "incentive to lie" (majority opn at
9) were necessary to explain a thirteen year-old's decision to
confess falsely, there certainly was one in this case; the child
believed, as he had been encouraged to in his mother's absence,
that making the sought confession was the only way he could
extricate himself from the extraordinarily aversive situation in
which he found himself.
Children do resort to falsehood to
alleviate discomfort and satisfy the expectations of those in
authority, and, in so doing, often neglect to consider the
serious and lasting consequences of their election.
There are
developmental reasons for this behavior which we ignore at the
peril of the truth-seeking process.
So long as juveniles cannot be altogether preserved
from rigors of police interrogation, it would behoove us not to
minimize the now well-documented potential for false confessions
when suggestible and often impulsive and impaired children are
ushered into the police interview room.
Recognition of the
distinct hazard presented by that inherently enormously coercive
scenario renders it imperative not only that we clarify, as we
have, what the Family Court Act requires with respect to parental
4
Indeed, research has shown a pronounced willingness to
confess falsely among young teenage boys and one study has
documented false confession rates of 78% in boys respondent's age
(see Saul M. Kassin & Gisli H. Gudjonsson, The Psychology of
Confessions: A Review of the Literature & Issues, 5 Psychological
Science in the Public Interest 33, at 52-53 [November 2004]).
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No. 157
involvement at juvenile interrogations, but that, where children
are concerned, we scrupulously adhere to Miranda's requirement
that there be a demonstrably valid waiver of rights, unaffected
by threats, trickery, or cajolement, to support the admission of
a custodial confession.
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Order affirmed, without costs. Opinion by Judge Pigott. Judges
Graffeo, Read and Smith concur. Chief Judge Lippman dissents in
an opinion in which Judges Ciparick and Jones concur.
Decided October 26, 2010
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