Joseph, 10, had just told police he shot his father while he slept. The father had threatened to remove smoke detectors from the home and burn the family in it, the boy related, and had beaten him and his stepmother.

A detective told Joseph he had the right to remain silent and asked whether Joseph understood that.

"That means I have the right to stay calm," Joseph replied.

After hearing more explanation from the detective, Joseph waived his rights and was later convicted of murder. He was one of hundreds of juveniles interrogated by police in California each year who waive legal rights that some experts say the youngsters do not understand.

"With many adolescents, the most important thing is what is going to happen to them in the next half hour," said University of Massachusetts emeritus medical professor Thomas Grisso. "Can they go home? Adults are much more likely to consider the longer-term consequences."

Joseph's case has sharpened a debate among courts over whether juveniles are savvy enough to waive their legal rights.

After a majority on the California Supreme Court declined last month to review Joseph's case, two dissenting justices asked the Legislature to consider establishing new rules or guidelines for the interrogation of juveniles. Other courts also have tackled the question in recent rulings: At what age are juveniles cognitively and emotionally capable of understanding the consequences of their actions in the criminal justice system?

Studies show that juveniles, particularly those under 13, cannot fully comprehend the implications of talking to police without lawyers. They are more likely than adults both to waive their rights and to confess to crimes they didn't commit. When they do falsely confess, it is often to protect others, according to experts in juvenile justice.

Some states have rules to protect juveniles during interrogations, but California decides whether waivers are valid on a case-by-case basis — and only when a verdict results in an appeal. The practice prompted three state high court justices — all with young children and appointed by Gov. Jerry Brown — to dissent when the court refused to take up Joseph's case.

"Consideration of special safeguards for young children need not await judicial action," Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuéllar, wrote in a dissent. "Many states have found the issue worthy of legislative attention." Justice Leondra Kruger also wanted to review the case but did not sign Liu's dissent.

Liu noted that 613 kids under the age of 12 were arrested for felonies in 2011, the year Joseph killed his father. More than 500 minors in that age group were arrested for felonies in 2012, nearly 450 in 2013 and 281 in 2014, Liu said.

"The proper application of Miranda to children in Joseph's age range likely affects hundreds of cases each year, even though few such cases result in a trial and appeal," Liu wrote.

The issue already had been raised by other courts before Liu's dissent grabbed attention.

A San Francisco-based state appeals court recently condemned police tactics in the case of a 13-year-old found to have committed a lewd and lascivious act upon a child.

Justice J. Anthony Kline, writing for a three-judge panel, blamed detectives' "accusatory … dominating, unyielding and intimidating" interrogation for the boy's admission that he touched a 3-year-old in the vaginal area out of curiosity. The court noted that detectives lied to the boy — a practice permitted in the U.S. but not in several European countries — to extract an admission.

"The realization that children and adolescents are much more vulnerable to psychologically coercive interrogations and in other dealings with the police" is well-known, Kline wrote.

Kline's ruling cited research that found that juveniles were particularly susceptible to confessing to crimes they didn't commit. In a 2004 study of 125 proven false confessions, juveniles accounted for one-third of admissions. Another study of 340 exonerations found that 13% of the adults falsely confessed compared with 42% of the juveniles.

In yet another case of a juvenile confession, the 9th Circuit Court of Appeals in August overturned the murder conviction of Adrian Reyes, 15, for Derek Ochoa's slaying in a gang assault. The ruling hinged on the way the police interrogated the boy.

Riverside police traced a car at the crime scene to an older cousin of Reyes, who had just turned 15. Police questioned the high school freshman over two days without advising him of his rights and falsely told him he had been identified by a witness as the culprit, according to the court. Reyes also was given a polygraph, without any consent by an adult. The result of the test was not in the court records, the 9th Circuit said. Reyes was told he failed.

A detective asked him whether he was afraid of going to jail. Reyes said he was afraid of being locked up for 25 years.

Detective: "How many 15-year-olds do you know that go to jail for 25 years?"

Reyes: "None."

Detective: "OK, so why would you be any different?"

After confessing, Reyes asked the police not to tell his parents. He repeated the admission after being read his rights and received a 50-year sentence.

UC Irvine professor Elizabeth E. Cauffman, an expert in the development and treatment of anti-social behavior in adolescents, cited research that she said showed juveniles 15 and younger lack the cognitive ability to understand what happens at a trial.

"We are transferring kids to the adult court system and they are not competent to stand trial," she said.

Adolescents generally are cognitively mature at age 16, but lack emotional "self-regulation," she said. The brain is not fully developed until age 25. Studies show that by that age, people can control their impulses and tend to commit fewer crimes, she said.

Despite such research, Californians passed Proposition 21 in 2000, giving prosecutors wide authority to charge a juvenile in adult court. Public sentiment has since changed, according to polls, and the U.S. Supreme Court has struck down laws mandating life without parole for juveniles who kill.

"The pendulum is kind of swinging, with courts saying tough, hard punishments for very young kids don't make a lot of sense," said Barry Krisberg, a social scientist and expert in juvenile justice. "The legal world is trying to catch up to the brain science."

Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation, said he would like Miranda rights to be eliminated and all interrogations videotaped. He called the brain research about adolescents' legal culpability "a bunch of hooey."

"I am reluctant to draw bright lines on age because people mature at different rates and people become street smart at different rates," Scheidegger said.

UC Berkeley law professor Franklin E. Zimring, on the other hand, said he favors a requirement that a parent's consent be obtained before a minor can be interrogated.

"Anybody who understands what goes on during a police interrogation asks for a lawyer and shuts up," Zimring said.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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