OLR Research Report

January 8, 2007





By: George Coppolo, Chief Attorney

You asked how other states deal with Miranda warnings for juveniles.


The United States Supreme Court has ruled that juveniles have the constitutional right to notice of the charges against them, to counsel, to confrontation and cross-examination of witnesses, and to the privilege against self-incrimination (In re Gault, 387 U.S. 1, (1967)).

In Miranda v. Arizona, the Supreme Court established certain procedural safeguards designed to protect the rights of an accused, under the Fifth and Fourteenth Amendments, to be free from compelled self-incrimination during custodial interrogation. The Court specified, among other things, that if the accused indicates in any manner that he wishes to remain silent or to consult an attorney, the interrogation must cease, and any statement obtained from him during the interrogation thereafter may not be admitted against him at his trial (Miranda v. Arizona, 384 U.S. 436, 444-445, 473-474 (1966)).

The United States Supreme Court has concluded that juveniles who are arrested for delinquent acts, just as adults who are arrested for crimes, are entitled to Miranda warnings. Thus juveniles must be given the Miranda warnings before being questioned by the police concerning the violation of criminal laws. In determining whether a juvenile effectively waived his Miranda rights, courts consider whether the juvenile had the capacity to understand the warnings given to him, the nature of his constitutional right to remain silent, and the consequences of waiving those rights.

Seven states have created presumptions by statute or case law that a juvenile under a set age cannot waive his Miranda rights or cannot waive these rights without an opportunity to consult with a parent (Iowa, Kansas, Massachusetts, Montana, New Jersey, New Mexico, and Washington). Six states require that a parent or someone else, such as a grandparent, who is in a caretaking role be present during questioning only when the child is younger than a designated age, typically 13 or 14 (Colorado, Indiana, North Carolina, North Dakota, Oklahoma, and Vermont). Thirty-six states and the District of Columbia apply the totality-of-the-circumstances test derived from a leading U.S. Supreme Court case essentially without modification (Alabama, Alaska, Arizona, Arkansas, California, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New York, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming).

In the states that have a parental-presence rule or a presumption that some children cannot waive their Miranda rights, courts use the totality of circumstances test to evaluate waivers made in the presence of a parent or by a child of the presumed age of capacity to waive Miranda rights.

This report does not address what constitutional and statutory rights juveniles have in Connecticut.

This report is taken directly from a comprehensive law review article that was published this year (Waiving Childhood Goodbye: How Juvenile Courts Fail to Protect Children From Unknowing, Unintelligent, and Involuntary Waivers of Miranda Rights, 2006 Wis. L. Rev. 431, Kenneth J. King).


Miranda Warnings

Under the rule the Supreme Court established in Miranda, in order to be able to use in a criminal trial statements obtained during custodial interrogation of the accused, the police must warn the accused before questioning him of his right to remain silent and of his right to have counsel, retained or appointed, present during interrogation (384 U.S., at 473).

If the individual indicates in any manner, at any time before or during questioning, that he wishes to remain silent, the interrogation must cease. If he states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, he must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If he cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent (Miranda at 473-474).

Any statements obtained during custodial interrogation conducted in violation of these rules may not be admitted against the accused (Miranda, at 479).

Miranda Warnings for Juveniles

The information in this portion of the background section was taken directly from a recent law review article (Juvenile's Competence to Exercise Miranda Rights: An Empirical Study of Policy and Practice, 91 MNLR 26, 29-41 (2006)).

The Supreme Court has assumed that the Miranda principles fully apply to juvenile proceedings, and thus the right to a warning before interrogation previously developed in Miranda applies to juveniles (Fare. v. Michael C., 442 U.S. 707 at 717 n.4). When determining whether a juvenile has waived his Miranda rights courts must determine whether the juvenile made a knowing, intelligent, and voluntary waiver under the totality of the circumstances, and whether he made any ensuing statements voluntarily.

In Fare v. Michael C., the Court considered the validity of a Miranda waiver given by a 16 year-old who had several prior arrests, considerable experience with the police, and had served time in a youth camp. The juvenile repeatedly asked to see his probation officer before being questioned by the police. The Court ruled that asking to speak with a probation officer did not invoke the Miranda privilege against self-incrimination or constitute the functional equivalent of a request to consult with counsel, either of which would have required police to stop the interrogation.

Fare held that the “totality of the circumstances” test used to evaluate the validity of adult waivers governed the validity of juveniles' waivers as well as the admissibility of their confessions (Fare at 725). The Court refused to give children greater procedural protections than those afforded adults. The Court rejected the view that developmental or psychological differences between juveniles and adults required different rules or special procedural protections during interrogation. Instead, it required children to assert their legal rights clearly and unambiguously, just like adults, and rejected the argument that trial courts cannot adequately measure young peoples' exercise or waiver of Miranda rights against the adult standard (Fare at 725 and 726).


The remainder of the report is taken directly from a comprehensive law review article that was published this year (Waiving Childhood Goodbye: How Juvenile Courts Fail to Protect Children From Unknowing, Unintelligent, and Involuntary Waivers of Miranda Rights, 2006 Wis. L. Rev. 431, Kenneth J. King).

Presumption That Children Under a Certain Age Cannot Waive Their Miranda Rights

The following states establish a presumption that children below a certain age cannot waive their Miranda rights.

● Iowa, (Iowa Code Ann. 232.11) a child's right to counsel attaches upon being “taken into custody for any alleged delinquent act that constitutes a serious or aggravated misdemeanor or felony under the Iowa criminal code” and expressly applies to any subsequent questioning by a peace officer or a probation officer; a child under 16 cannot waive the right to counsel without the written consent of the child's parent; a waiver from a child who is at least 16 years old is valid “only if a good faith effort has been made to notify the child's parent”; see State v. Means, 547 N.W.2d 615, 620 (Iowa Ct. App. 1996).

● Kansas, (In re B.M.B., 955 P.2d 1302, 1312-13 (Kan. 1998)) a child under the age of 14 cannot waive the rights to silence or an attorney without first having an opportunity to consult with a parent who is informed of the child's rights.

● Massachusetts, (Commonwealth v. A Juvenile, 449 N.E.2d 654, 657 (Mass. 1983)) a child under the age of 14 cannot waive Miranda rights without consulting with an adult who is interested in the child's welfare, who understands the warnings, and who has the opportunity to explain the rights and the significance of waiver to the child; if a child is 14 or older, he or she should ordinarily be given an opportunity to consult with an interested adult, and in the absence of such opportunity the waiver will be upheld only if the evidence shows that the child has a high degree of intelligence, experience, knowledge, or sophistication.

● Montana, (Mont. Code Ann. 41-5-331 (2005)) a child under 16 can waive rights only with a parent's agreement; when a parent does not agree, the child can waive after consulting with counsel; a child who is at least 16 can make an effective waiver without a parent present.

● New Jersey, (State v. Presha, 748 A.2d 1108, 1114 (N.J. 2000)) a juvenile under 14 cannot waive Miranda rights in the absence of a parent unless the parent is actually unavailable or unwilling to be present for questioning); see also (State ex rel. Q.N., 843 A.2d 1140, 1146-47 (N.J. 2004)) stating that a parent who refused to remain in the room while a 12-year-old child was being interrogated was available.

● New Mexico, (N.M. Stat. Ann. 32A-2-14) provides a statutory prohibition on the admission of a statement by a child under 13 in the adjudicatory phase of a delinquency proceeding and a presumption that a child between 13 and 14 is incapable of making a valid waiver of Miranda rights; and establishing totality factors for assessing waivers of children over 14 years old.

● Washington, (Wash. Rev. Code Ann. 13.40.140(10)) a parent must waive rights when a child is under 12 years of age; see also Dutil v. State, 606 P.2d 269, 270-72 (Wash. 1980) noting a totality analysis if a child is over twelve years old.

States That Require the Presence of a Parent or Other Adult

The following states require that a parent or some other specified adult be present in order for a Miranda waiver to be valid.

● Colorado, (Colo. Rev. Stat. Ann. 19-2-511) subject to exceptions for emancipated children, children who misrepresent their age, and runaways from another state if the child is under 18, a parent or the child's legal counsel must be present and informed of the child's rights for any custodial statement to be admissible; the child and the parent may waive parental presence in writing.

● Indiana, (Ind. Code Ann. 31-32-5-1) stating that a child's rights can be waived only by a parent or legal counsel unless the child has been emancipated. (Apparently it applies to children under age 18.)*

● North Carolina, (N.C. Gen. Stat. Ann. 7B-210) a child under 14 cannot waive his or her rights unless a parent or attorney is present; if an attorney is not present, the parent and child must be advised of the child's rights, including the right to have a parent present during interrogation.

● North Dakota, (N.D. Cent. Code 27-20-26) stating that a child has a nonwaivable right to be represented either by counsel or by a parent. Also see State v. Ellvanger, 453 N.W.2d 810, 813, which held that a child's right to counsel extends to investigative interviews once the investigation has focused on the child. (Apparently this applies to children under 16.)*

● Oklahoma, (Okla. Stat. Ann. tit. 10, 7303-3.1) advisement of rights attendant to custodial interrogation must take place in the presence of either the parent or legal counsel. (Apparently this applies to children under 16.)*

● Vermont, (In re E.T.C., 449 A.2d 937, 940 (Vt. 1982)) under the Vermont Constitution, a juvenile must be given the opportunity to consult with an adult who is interested in the welfare of the juvenile, is independent from the prosecution, and has been informed of the juvenile's rights. (Apparently this applies to children under age 16.)*

(* These ages were not specified in the law review article.)

Totality of Circumstances Test

Through the totality of circumstances analysis, a court determines whether the Miranda waiver was voluntary, knowing, and intelligent. A waiver is voluntary if it was the product of a free and deliberate choice rather than intimidation, coercion, or deception (Moran v. Burbine, 475 U.S. 412, 421 (1986)) It is knowing and intelligent when made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon (Moran at 421).

The Miranda waiver will be upheld only when the totality of the circumstances shows both an uncoerced choice and the requisite level of comprehension (Moran at 421). Though each state defines the totality that is relevant to this determination somewhat differently, most of the definitions contain common features.

The New Hampshire Supreme Court uses an expansive definition of the totality of the circumstances, having set out the following 15 factors to be examined by the courts when passing on a juvenile's waiver of Miranda rights:

1. the juvenile's chronological age;

2. the juvenile's apparent mental age;

3. the juvenile's educational level;

4. the juvenile's physical condition;

5. the juvenile's previous dealings with the police or court appearances;

6. the extent of the explanation of rights;

7. the language of the warnings given;

8. the methods of interrogation;

9. the length of interrogation;

10. the length of time the juvenile was in custody;

11. whether the juvenile was held incommunicado;

12. whether the juvenile was afforded the opportunity to consult with an adult;

13. the juvenile's understanding of the offense charged;

14. whether the juvenile was warned of possible transfer to adult court; and

15. whether the juvenile later repudiated the statement (State v. Benoit, 490 A.2d 295, 302 (N.H. 1985)

A few states expressly require courts to consider whether the juvenile's level of knowledge and maturity enabled the juvenile to make a reasoned decision in the totality calculus. A few more track the U. S. Supreme Court's language and consider whether the child has the capacity to understand (1) the warnings given him, (2) the nature of his Fifth Amendment rights, and (3) the consequences of waiving those rights as part of the totality analysis.

The most common features of the states' formulations of the totality test are:

1. consideration of the child's age, intelligence, education, and mental condition;

2. whether a parent or other adult advisor is present;

3. prior experience with courts or law enforcement, if any; and

4. the nature of the questioning (including the length, tone, accusatory nature, police tactics, and time and place of questioning).

The following 36 states use the totality of circumstances test:

● Alabama, (C.M.B. v. State, 594 So.2d 695, 700- 01 (Ala. Crim. App. 1991);

● Alaska, (Quick v. State, 599 P.2d 712, 719 (Alaska 1979); Watkinson v. State, 980 P.2d 469, 472 (Alaska Ct. App. 1999);

● Arizona, (In re Andre M., 88 P.3d 552, 555 (Ariz. 2004);

● Arkansas, (Matthews v. State, 991 S.W.2d 639, 643-44 (Ark. Ct. App. 1999) Ark. Code Ann. 9-27-317(i)(2)(A)-(C) (2002) police cannot question a juvenile in custody if the juvenile indicates in any manner a desire to end the questioning, to speak with a custodial caretaker, or to consult counsel);

● California, (Ahmad A. v. People, 263 Cal. Rptr. 747, 752-53 (Ct. App. 1989);

● Delaware, (Marine v.State, 607 A.2d 1185, 1195-96 (Del. 1992));

● District of Columbia, (In re M.A.C., 761 A.2d 32, 36 (D.C. 2000);

● Florida, (J.P. v. State, 895 So. 2d 1202, 1204 (Fla. Dist. Ct. App. 2005));

● Georgia, (State v. Rodriguez, 559 S.E.2d 435, 437 (Ga. 2002);

● Hawaii, (In re Doe, 978 P.2d 684, 691-92 (Haw. 1999));

● Idaho, (State v. Doe, 50 P.3d 1014, 1018 (Idaho 2002));

● Illinois, (People v. Lee, 781 N.E.2d 310, 316 (Ill. App. Ct. 2002);

● Kentucky,( Brasher v. Commonwealth, No. 2000-SC-130-MR, 2003 WL 1204081, at * 2 (Ky. Feb. 20, 2003));

● Louisiana, (State v. Fernandez, 96-2719, p.5 (La. 4/14/98); 712 So. 2d 485, 487);

● Maine, (State v. Nicholas S., 444 A.2d 373, 376 (Me. 1982))

● Maryland, (McIntyre v. State, 526 A.2d 30, 37 (Md. 1987);

● Michigan, (People v. Hall, 643 N.W.2d 253, 257 (Mich. Ct. App. 2002));

● Minnesota, (State v. Burrell, 697 N.W.2d 579, 592-93 (Minn. 2005));

● Mississippi, (Woodham v. State, 98-KA-01689-SCT (P 17); 800 So. 2d 1148, 1154 (Miss. 2001));

● Missouri, (State v. Barnaby, 950 S.W.2d 1, 3 (Mo. Ct. App. 1997));

● Nebraska, (State v. J.G., 437 N.W.2d 153, 155 (Neb. 1989));

● Nevada, (Quiriconi v. State, 616 P.2d 1111, 1114 (Nev. 1980));

● New Hampshire, (State v. Farrell, 766 A.2d 1057, 1061 (N.H. 2001));

● New York, (In re Phillip J., 683 N.Y.S.2d 293, 295 (App. Div. 1998));

● Ohio, (In re Goins, 738 N.E.2d 385, 388 (Ohio Ct. App. 1999));

● Oregon, (State ex rel. Juvenile Dep't v. Deford, 34 P.3d 673, 684 (Or. Ct. App. 2001));

● Pennsylvania, (Commonwealth v. Carter, 855 A.2d 885, 890 (Pa. 2004));

● Rhode Island, (In re Joseph B., 822 A.2d 172, 174 (R.I. 2003));

● South Carolina, (In re Williams, 217 S.E.2d 719, 722 (S.C. 1975));

● South Dakota, (State v. Horse, 2002 SD 47, P 13, 644 N.W.2d 211, 218; State v. Caffrey, 332 N.W.2d 269, 271 (S.D. 1983));

● Tennessee, (Braziel v. State, 529 S.W.2d 501, 506 (Tenn. Crim. App. 1975));

● *Texas, (V.T.C.A. 51-09); Pham v. State, 36 S.W. 3d 199 (2000))

● Utah, (State v. Dutchie, 969 P.2d 422, 427 (Utah 1998));

● Virginia, (Grogg v. Commonwealth, 371 S.E.2d 549, 556 (Va. Ct. App. 1988));

● West Virginia, (State v. Jones, 607 S.E.2d 498, 504-05 (W. Va. 2004));

● Wisconsin, (In re Jerrell C.J., 2005 WI 105, P 43, 283 Wis. 2d 145, P 43, 699 N.W.2d 110, P 43)

● Wyoming, (Rubio v. State, 939 P.2d 238, 242 (Wyo. 1997)).

(*Texas was not included in this list in the Wisconsin law review article.)