‘Uniquely Vulnerable’: A Q&A with Laura Cohen on the ins and outs of juvenile confessions
A fateful night in April 1989 forever changed the lives of Kevin Richardson, Antron McCray, Yusef Salaam, Raymond Santana and Korey Wise — better known as the Central Park Five. During a “blip in time” when crime was on the rise and the NYPD’s sex crime unit was desperate to put a face (or multiple) on what was considered a gruesome attack, five boys gone out to play entered the wrong place at the wrong time and paid the price for it, costing them each between 6 to 13 years of their freedom.
While this case is considered historic due to how it illustrates wrongful conviction, racial discrimination, and manipulation, it merely serves as a single example of a systemic failure present in the legal system fashioned against people of color for time immemorial. Even so, people ask just how such an error could occur to convict five completely innocent teens.
But, the late May release of Ava DuVernay’s “When They See Us,” a four-part biopic on the experiences of the Central Park Five not only depicted the hardships faced by the Five during trial, time served, and beyond, but the missteps leading up toward the pivotal trial as well.
Laura Cohen, a distinguished clinical professor at Rutgers Law School and the director of the Criminal and Youth Justice Clinic, spoke to me about how youth are susceptible to becoming pawns where there is a lack of understanding, and how knowing your rights can change everything.
Do parents or guardians have to be present when a person under 18 is interrogated by the police? When do police have to notify parents or guardians?
The law requires the police who want to interrogate you to make reasonable efforts to contact the parents or guardians and have the parents or guardians present not during the questioning itself, but during the administration of the Miranda warning. And if the parent comes to the precinct, the police are supposed to administer the warnings to both the parent and the child, and both the parent and the child are required to waive the rights before the police can continue with questioning. If the parent doesn’t come, if the parent is unavailable, then depending on the age of the child, the police may or may not continue with questioning. So, if the child is 15 or over, then the police can go ahead and as long as the child waives the rights, then the police can conduct the interrogation. If the child is younger than 15, then the parent has to be, what the law calls, “actually unavailable” — so the parent is deceased, the parent refuses to come to the precinct, those kinds of considerations may permit the police to continue with the interrogation process.
How long are they allowed to be questioned for?
There’s no outer limit on how long the police can question a child. The way that the process works is that the court subsequent to the interrogation will, if the defense attorney submits something called a motion, asking the court, challenging the legality of the interrogation process, or of the confession, then the court is required to conduct a hearing to determine whether or not the child waived their rights knowingly, willingly and voluntarily, and that there wasn’t any coercion involved in the interrogation process. And so one of the factors in determining whether an interrogation was coercive or not, is the length of time the police interrogated the young person for. But there’s no hard-attached rule with regard to how long that is. Every case is supposed to be evaluated individually, and the legal standard is the totality of the circumstances.
There are some cases in which courts have looked specifically at the length of time that an interrogation took, and has held that the time exceeded anything that could be considered non-coercive but sometimes that can be a couple of hours, and sometimes it can be a couple of days. Young people, because of their developmental immaturity and because of trauma and because of lack of experience with the legal system, will be more subject to coercion in a shorter period of time than an adult would be.
So is 18 hours considered not too long of a time?
What happens in a lot of cases is the police will begin an interrogation, and then they’ll stop it, and then they’ll start it again, so it’s not necessarily 18 hours of grilling, but that almost doesn’t matter, especially with youth because the experience of being in the police station and undergoing this process is inherently manipulative and is inherently coercive. And a tactic that the police use to extract confessions from anyone but particularly young people is to interrogate them for a little while — interrogate them for some period of time and express frustration or say to them “you need to think about this for a little bit” and will either leave them in the interrogation room by themselves to stew over the situation, or lock them up in a cell. With the Central Park Five, I think the police used all of those methods depending on which young person was involved in it. There was a lot of back and forth over the time that they were in the precinct, which doesn’t make the situation less coercive or less forceful, but it’s not like there was 18 hours of constant badgering.
It’s never been a secret that children are much more vulnerable to police overreaching, much more vulnerable to police tactics, broadly painted, and much more likely to accede to authority.
In New York, there’s a law that has been in place since 1979 called the juvenile offender law that mandates that any child who is charged with a murder at the age of 13 be prosecuted as an adult and any child charged with a list of serious felonies including the rape and robbery and assault that the Central Park Five were charged with, must be tried as adults.
So, they’re tried in the adult system, they’re treated as adults, there were no special protections for them in the interrogation room. In New Jersey about how and when parents had to be notified, actually didn’t apply in that case because those kids were being charged in the adult system and once they are being charged in the adult system, the law doesn’t at that point give them any special protection. So a number of those parents did go to the precinct, but what I just described with regard to the administration of the Miranda warning, the participation of the parents in the waiver process, did not apply to those young people.
It really felt like — through my interpretation — that they were essentially just scooped up off the street because the police needed a face for this major crime that happened just to quell panic throughout the city … right?
What happens in a high-profile case is that there is enormous pressure on the police to solve it, for the reasons that you’ve just described, and so there is this rush to judgment — that was an extreme situation, but it happens all the time.
Can police officers lie during an interrogation? Why is that okay?
The courts said it’s okay, so it’s okay. There is a standard methodology that police use for interrogations, and they use this methodology all over the country — it’s called the Reid Method. And it’s a method that was developed in the middle of the last century, I think initially for military interrogations, but there are certain tactics that the methodology promotes and those tactics are inherently coercive. They’re coercive enough when it’s an adult who’s subjected to them, but they’re infinitely worse when it’s young people because they prey on particular vulnerabilities that adolescents have, so one of the tactics that is embraced and sanctioned by these methods is lying to the person under interrogation. There are a number of other methodologies that they use as well, but that’s one of them and the courts have upheld that up to a point.
Does an attorney have to be present when a juvenile is questioned?
An attorney does not necessarily have to be present. So the Miranda rights include the right to consult with an attorney before someone decides to submit to police questioning. So think about the warnings you hear on television.
Those rights embody the protections of the Fifth Amendment of the Constitution. It is an articulation of the Fifth Amendment rights. If anyone who is under arrest and who the police want to question says, “I am refusing to speak to you until I speak to a lawyer,” then the police are supposed to shut the interrogation down, not ask any more questions, unless and until the person has a chance to speak to a lawyer. In reality, the system is not set up to have lawyers present in every precinct, or on every street corner to speak to people who are the subject of potential police interrogation. So in practice, what happens is that if somebody says, “I want to speak to a lawyer before I answer any questions,” then that shuts the interrogation down.
Despite the particularity of those rights, there is an enormous occurrence of waiver of counsel. Kids do it much more often than adults do but people, when they’re in police custody — there’s all kinds of psychology around this — but when people are in police custody, they tend to sign off on the Miranda rights and the warnings and agree to speak to the police.
There is a movement around the country to ensure that children and adolescents who are in police custody and who are the potential subjects of interrogation have an actual opportunity to speak to a lawyer before they are even asked if they want to waive their rights or not. So, the idea would be that any time the police want to interrogate a child, before they administer the warning, they would have to provide a lawyer with whom that child could consult before making what is often a life-changing decision.
California just passed the law last year that requires the police to provide an attorney consult for children who are under the age of 15 at the time they are arrested. I hope that is signaling a national policy change. Because we know that children and adolescents are substantially more likely to waive their rights, and we also know that they are substantially more likely to make false confessions than adults are. According to one study, 2.5 times more likely, and that study was based on an examination of post-conviction exonerations based on DNA evidence.
When are youth considered juveniles and when are they considered adults?
“Juvenile” is a legal term that applies to when young people are prosecuted in family court or in juvenile court rather than as adults in the adult system. In New Jersey, the juvenile court requires that any child under the age of 18 initially be referred to the juvenile court rather than to the adult system. There are then certain serious crimes that would permit young people who are age 15 and over to be transferred or waived to the adult system after a hearing in the juvenile court, but they start in the juvenile system.
The differences between a juvenile court adjudication and adult conviction are pretty significant. Juvenile court adjudication, regardless of how serious the offense was, doesn’t count as a criminal conviction. It doesn’t have the same kind of collateral consequences that an adult conviction has. Children who are prosecuted in juvenile court have different kinds of sentences, different possibilities for sentences that are imposed on them. There are pretty significant differences although they are not as extreme as they once were.
How do you think that’s changed since the late 80s to now?
One of the things that happened in the late 80s and early 90s was what turned out to be a very temporary uptake in juvenile crime. And some of the crimes were the very high-profile cases like the Central Park Five case, and there was public outcry around what the media was portraying as the new generation of dangerous youth.
A sociologist whose name was John DiIulio, he wrote what turned out to be an extraordinarily damaging and famous op-ed and scholarly articles in which he claimed that the country was about to be hit by a new wave of what he called “juvenile superpredators.” That was picked up and echoed by a number of academics and that led to every state in the country, as well as the federal government enacting new laws.
But the mid-90s, the only way that in most states, that children could be waived up to the adult system was through a proceeding in juvenile court in which the question of whether or not they were amenable to rehabilitation was at the center of the Inquiry. Because juvenile court historically was about recognizing that children make mistakes, recognizing their potential for change and also recognizing a system that subjected young people to the very public and punitive nature of an adult prosecution did not take into account that potential change and the lesser culpability that young people have. So juvenile proceedings were not open to the public, they were completely confidential, the focus of the court was primarily on rehabilitation, which didn’t mean that children couldn’t be sent to youth prisons they could be, but the nature of the inquiry was different.
What changes need to be made to protect kids who are being interrogated? What should kids know about their rights during an interrogation?
I would like to see an outright ban on any custodial interrogation of children. We know that children do not understand the rights they’re giving up, we know their rates of false confession are unacceptably high, we know that they are uniquely vulnerable to standard police interrogation tactics, and we also know that in many if not most cases the police do not need the interrogation to solve the crime. And so the risk that is had, the risk of false confession, the risk of wrongful intimidation, wrongful conviction, the risk of unconstitutional waivers of Miranda rights, do not justify continuing our current system which allows the police to interrogate anyone, regardless of their age or developmental status or past trauma.
Short of that, we should follow in California’s lead and require that children consult with counsel before they are asked to waive their rights, and before they make a decision as to whether to waive their rights. All interrogations should be video recorded, but it is not enough to do what we currently do, which is to turn on the recording equipment at the time the police decide that the young person is ready to answer questions. There is a lot that happens before that final waiver of the rights and that statement is made. So if the police are permitted to interrogate and are intending to interrogate, then the cameras should be turned on from the time the young person comes into their presence, throughout the time that they are on the street, in the patrol car, at the station, in those interim periods when a child is in a holding cell, in between stints of questions — the cameras should be on the entire time and the audio should be working the entire time.
