Taking Back Juvenile Confessions

68 Pages Posted: 14 Aug 2016 Last revised: 19 Jan 2017

Kevin Lapp

Loyola Law School Los Angeles

Date Written: January 1, 2017

Abstract

The limited capacity of juveniles to make good decisions on their own — based on centuries of common sense and empirically supported in recent decades by abundant scientific research — informs almost every field of legal doctrine. Recent criminal justice reforms have grounded enhanced protections for youth at punishment and as criminal suspects on their limited cognitive abilities and heightened vulnerability. One area of criminal procedure doctrine lags behind this legal, scientific, and social consensus. Despite historical recognition of the need for special protections for interrogated youth, current law regarding the waiver of the rights to silence and to counsel at interrogation predominantly treats juvenile suspects like adults. This underenforces their privilege against self-incrimination, disrespects their dignity, and raises the risk of wrongful convictions. This Article considers whether interrogation law should correct course by incorporating a rule akin to contract law’s centuries-old infancy doctrine and permit individuals to retract uncounseled Miranda waivers elicited by law enforcement while they were juveniles. The justifications, advantages, and drawbacks to such a doctrinal shift are explored.

Keywords: juvenile, interrogation, Miranda, confession, waiver, contract, infancy doctrine, Fifth Amendment, criminal, juvenile justice, adolescence, brain development

Suggested Citation

Lapp, Kevin, Taking Back Juvenile Confessions (January 1, 2017). UCLA Law Review, Forthcoming; Loyola Law School, Los Angeles Legal Studies Research Paper No. 2016-34. Available at SSRN: https://ssrn.com/abstract=2822551 or http://dx.doi.org/10.2139/ssrn.2822551

Kevin Lapp (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1165 (Phone)

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