(a) Officers should assess carefully a person’s background, age, education, language access, mental impairment, and physical condition, in order to determine vulnerability to coercion and suggestion.
(b) Officers should minimize the need to question vulnerable people and members of vulnerable populations, such as minors, people with mental illness, people with developmental disability, and people affected by substance-related impairment. If they do question vulnerable individuals, they should do so with minimal coercion and the utmost care.
(c) Hearing-impaired and sight-impaired individuals should be provided with necessary assistance prior to the reading of rights or any questioning.
(d) Persons of limited English proficiency should be provided with translators prior to the reading of rights or any questioning.
(e) A minor age 14 or younger may give a valid waiver of the right to counsel and the right to remain silent only after meaningful consultation with and in the presence of counsel.
a. Vulnerable individuals. Vulnerable populations, such as juveniles, people with mental illness, people with developmental disability, people with substance-related impairments, and hearing-impaired individuals or persons of limited English proficiency, should be questioned with caution. Officers should take steps to ask about the abilities and limitations of a particular person, in order to identify vulnerable individuals, including members of vulnerable populations. If the officer is aware that the person is a vulnerable individual, or a member of a vulnerable population, additional steps should be taken to explain warnings using simplified language. Agencies have adopted enhanced warnings for minors and other members of vulnerable populations. An officer can assess a person’s understanding of warnings simply by asking the person to repeat them in his or her own words. If a waiver occurs, any subsequent questioning should then proceed cautiously and with careful attention to these Principles, including by greatly limiting the length of the questioning.
b. Hearing-impaired and non-English-speaking individuals. Hearing-impaired and persons of limited English proficiency should be provided with necessary assistance or translators prior to the reading of rights or any questioning.
c. Minors under age 14. Minors are at heightened risk for false confessions and coercion. The U.S. Supreme Court has long observed that minors, due to developmental immaturity, are more vulnerable to coercion. As a result, confessions by minors has long been viewed by the courts with “special caution.” In re Gault, 387 U.S. 1, 45 (1967). Minors waive their rights at very high rates. The U.S. Supreme Court has recognized the emotional and developmental differences between adults and minors, and the implications that those have for the conduct of juvenile interviews in general and interrogations in particular. Those differences must be taken into account when an officer conducts an interview or interrogation of a minor. In addition, a substantial body of scientific research, including neurological research, documents how minors, as well as young adults, are generally more impressionable and vulnerable to suggestion than adults and may be more susceptible to intimidation by the situation and the presence of police officers.
Restatement of the Law, Children and the Law § 14.22 (Tentative Draft No. 1, 2018) states that “a juvenile age 14 or younger can give a valid waiver of the right to counsel and the right to remain silent only after meaningful consultation with and in the presence of counsel.” The Restatement qualifies the statement with “[u]nless otherwise provided by statute.” These Principles set out best practices, rather than restating existing law. Therefore, while the Restatement acknowledges that certain statutes may disregard the child’s lack of capacity in establishing the legal consequences of a waiver, these Principles reject such qualification. If a juvenile is not competent to waive his or her rights, we do not believe a statute to the contrary changes that fact.
d. People with mental illness and people with intellectual disability. While officers are not psychiatrists or psychologists, a good-faith effort should be made to identify people with mental illness and people with intellectual disability. Doing so may be more challenging than identifying non-English speakers or minors. Officers should receive training on how to proceed when there is evidence that an individual has mental-health issues. Officers should be encouraged to consult with mental-health professionals before proceeding. Questioning of people with mental illness or intellectual disability should be short, and conducted using short, simple words and sentences. Officers should be sensitive to the tendency of such individuals to defer to authority figures.
e. People affected by substance-related impairments. A good-faith effort should similarly be made to identify persons affected by temporary or long-term effects of substances, including alcohol and drugs. Such individuals should receive any needed monitoring and medical treatment before questioning proceeds.
The questioning of members of vulnerable populations should proceed quite differently, from beginning to end, than the questioning of other, non-vulnerable individuals. Although judicial rulings have long expressed concerns with the questioning of individuals such as intellectually disabled persons and juveniles, no clear or consistent guidance has been offered to law enforcement from the courts. As a preliminary matter, individuals who belong to such populations should be identified. Screening instruments should be developed to assist in doing so, and resources should be made available to law enforcement, such as consulting mental-health professionals or social workers experienced with juveniles or other populations, as should resources to accommodate non-English speakers and the hearing impaired.
Persons that belong to vulnerable populations may not understand what they are told by officers during provision of warnings or during questioning, particularly when legal or technical language is used. This includes comprehending the Miranda warnings. Jessica Owen-Kostelnik, et al., Testimony and Interrogation of Minors: Assumptions About Maturity and Morality, 61 Am. Psychol. 286 (2006). Thus, particularly for minors, intellectually disabled individuals, and mentally ill individuals, officers should read, in addition to their standard warnings, simplified Miranda warnings that require only a grade- and individual-appropriate comprehension level. They should ensure that any waiver is obtained clearly and definitively. Officers should tailor their questions to the person’s age, maturity, level of education, and mental ability. Written materials cannot be relied upon fully for persons, such as juveniles, who enter the criminal-justice system with lower-than-average reading ability. Officers should avoid police or legal jargon when speaking to members of vulnerable populations; use short, simple words and sentences; and use non-leading questions that elicit a narrative response. The admonition in § 11.04 about minimizing deception is particularly pertinent here. Officers should not make promises or threats when speaking to members of vulnerable populations. See also Restatement of the Law, Children and the Law § 14.21 (Am. L. Inst., Tentative Draft No. 1, 2018) (describing requirement of a knowing, intelligent, and voluntary waiver by juveniles). Courts should carefully evaluate not only age, but the intelligence of a minor, as well as other circumstances. See, e.g., id., Reporters’ Notes to § 14.21 (surveying cases). As a result, great care should be taken to ensure a knowing, intelligent, and voluntary waiver of rights.
Research on minors in particular has shown that minors are far more likely to conform to authority, including officers, and comply when asked to do so, whether the officers are being truthful or not. Phillip R. Costanzo & Marvin E. Shaw, Conformity as a Function of Age Level, 37 Child Dev. 967 (1966); Barry C. Feld, Kids, Cops, and Confessions: Inside the Interrogation Room 58 (2012). As one survey observed: “Archival analyses of false confessions, surveys, and laboratory experiments have shown that juveniles are at increased risk of falsely confessing.” Christian A. Meissner, Christopher E. Kelly & Skye A. Woestehoff, Improving Effectiveness of Suspect Interrogations, 11 Ann. Rev. L. & Soc. Sci. 211, 214 (2015). Substantial research has documented the risk that juveniles will falsely confess due to their increased likelihood of complying with authority without understanding the consequences of their decisions. Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants, 27 L. & Hum. Behav. 333 (2003); Gisli H. Gudjonsson et al., Custodial Interrogation, False Confession and Individual Differences: A National Study among Icelandic Youth, 41 Personal. & Individ. Differ. 49 (2006); Ingrid Candel et al., “I hit the shift-key and then the computer crashed”: Children and False Admissions, 38 Personality & Individ. Differ. 1381 (2005); Allison D. Redlich & Gail S. Goodman, Taking Responsibility for an Act Not Committed: The Influence of Age and Suggestibility, 27 Law & Hum. Behav. 141 (2003).
As a result, judicial rulings have long reflected concern about interrogations of minors. The U.S. Supreme Court in J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011), held that a minor’s age must be considered in examining whether the juvenile should have been deemed in police custody. Questioning by school resource officers or other government officials also may be considered as a factor that indicates to a minor that it is a custodial situation. In re Welfare of G.S.P., 610 N.W.2d 651 (Minn. Ct. App. 2000). In rulings concerning life without parole, the Supreme Court has found states cannot impose mandatory life-without-parole sentences on juvenile offenders, noting the particular danger that minors may confess falsely. Miller v. Alabama, 132 S. Ct. 2455 (2012). Courts have held that police stations are inherently coercive for some minors. Jeffley v. State, 38 S.W.3d 847, 857 (Tex. Ct. App. 2001); United States v. IMM, 747 F.3d 754, 767 (9th Cir. 2014). All of those rulings support minimizing the questioning of juveniles, and approaching any such questioning, and particularly interrogations, with great sensitivity.
The Restatement of the Law, Children and the Law, provides as follows:
§ 14.20 Rights of a Juvenile in Custody; Definition of Custody
- (a) A juvenile in custody has the right to the assistance of counsel and the right to remain silent when questioned about the juvenile’s involvement in criminal activity by a law enforcement officer.
- (b) A juvenile is in custody if, under the circumstances of the questioning:
- (1) a reasonable juvenile of the suspect’s age would feel that his or her freedom of movement was substantially restricted such that the juvenile was not at liberty to terminate the interview, and
- (2) the officer is aware that the individual being questioned is a juvenile or a reasonable officer would have been aware that the individual is not an adult.
Restatement of the Law, Children and the Law § 14.20 (Am. L. Inst., T.D. No. 1, 2018).
Officers should make every effort to notify parents or guardians prior to any questioning of a minor or juvenile. Parents should be offered the opportunity to be present whenever a minor is questioned, taken into custody, or charged. Parents should consult with the minor’s attorney before making any recommendations that their child speak to law enforcement. However, a parent’s consent is neither necessary nor sufficient for the minor’s waiver of these rights.
While officers should be able to identify non-English speakers, hearing-impaired individuals, and many, if not most, minors, identifying people with mental illness and people with intellectual disability can sometimes pose a real challenge for officers who are not trained mental-health professionals. Yet, many of those individuals known to have confessed falsely possessed such mental-health problems. It has been long known that such individuals are more vulnerable to police coercion, but few agencies have responded to such awareness with appropriate policies and training. Finlay & Lyons, Acquiescence in Interviews with People Who Have Mental Retardation, 40 Mental Retardation 14 (2002). One noteworthy agency that has done so is Florida’s Broward County Sheriff’s Office. See Broward County Sheriff’s Office, G.O. 01-33 (Nov. 17, 2001) (detailed policy concerning interrogation of suspects with developmental disabilities, including guidelines for interrogation and post-confession analysis).
A person with an intellectual disability is defined as having “significantly subaverage general intellectual functioning, existing concurrently [at the same time] with deficits in adaptive behavior and manifested during the developmental period, that adversely affects . . . educational performance,” under the Individuals with Disabilities Education Act (IDEA). Such disability can be difficult to recognize without visual cues, since some people are mildly affected. See The Arc, Introduction to Intellectual Disability, at http://www.thearc.org/page.aspx?pid=2448.
Mental illness refers to a wide range of mental disorders or health conditions. Severe mental illness, for example, is defined as a mental, behavioral, or emotional disorder, diagnosable currently or diagnosed within the past year, that meets criteria in the current Diagnostic and Statistical Manual of Mental Disorders, and that results in a “serious functional impairment, which substantially interferes with or limits one or more major life activities.” See National Institute of Mental Health, Serious Mental Illness (SMI) Among U.S. Adults, at https://www.nimh.nih.gov/health/statistics/prevalence/serious-mental-illness-smi-among-us-adults.shtml. Such serious mental illnesses can include schizophrenia, paranoid or psychotic disorders, bipolar disorders, post-traumatic stress disorders, and others. Such individuals may be found competent in a criminal case and found not criminally insane, but such standards are not designed to inform whether reliable information can fairly be obtained from such individuals.
Finally, persons affected by substances, whether alcohol or drugs, may require monitoring or medical treatment, and should not be questioned while impaired. Many individuals suffer co-occurrence of substance abuse and mental-health needs. For an overview of a wide range of screening and assessment instruments used in the area of co-occurring mental and substance-abuse disorders, see Substance Abuse and Mental Health Services Administration, Screening and Assessment of Co-Occurring Disorders in the Justice System (2015).
Many agencies do not have detailed policies on police questioning of members of vulnerable populations. Resources should be made available to develop such written policies, as well as training and supervision directed specifically at questioning of members of vulnerable populations.