N HE Supreme Court of New Jersey - ACLU-NJ · EDWARD BAROCAS. JEANNE LOCICERO. ALEXANDER SHALOM. American Civil Liberties Union of New Jersey Foundation . PO Box 32159 . …

IN THE

Supreme Court of New Jersey No. 67,984

STATE OF NEW JERSEY

Plaintiff-Respondent,

IN THE INTEREST OF A.W., a Juvenile,

Defendant-Petitioner.

: : : : : : : : : : : : : : : : : : :

JUVENILE ACTION ON A PETITION FOR CERTIFICATION TO THE APPELLATE DIVISION, SUPERIOR COURT, NO. A0244-09T2 SAT BELOW: EDITH K. PAYNE and LINDA G. BAXTER, J.A.D. ON APPEAL FROM AN ADJUDICATION OF DELINQUENCY OF THE SUPERIOR COURT OF NEW JERSEY, CHANCERY DIVISION, FAMILY PART, UNION COUNTY, DOCKET NO. FJ-20-1214-09. SAT BELOW: FREDERIC R. MCDANIEL, J.S.C.

BRIEF OF AMICI CURIAE AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY

EDWARD BAROCAS JEANNE LOCICERO ALEXANDER SHALOM American Civil Liberties Union of New Jersey

Foundation PO Box 32159 Newark, NJ 07102 (973) 854-1714 Of Counsel and On the Brief.

RONALD K. CHEN Rutgers Constitutional Litigation Clinic Center for Law & Justice 123 Washington St. Newark, NJ 07102 (973) 353-5378 LAURA COHEN Rutgers Urban Legal Clinic Center for Law & Justice 123 Washington St. Newark, NJ 07102 (973) 353-5378 Attorneys for Amicus Curiae American Civil Liberties Union of New Jersey

December 5, 2011.

i

TABLE OF CONTENTS

TABLE OF CONTENTS.............................................. i

TABLE OF AUTHORITIES......................................... iii

INTRODUCTION................................................... 1

STATEMENT OF FACTS AND PROCEDURAL HISTORY...................... 1

SUMMARY OF ARGUMENT............................................ 8

ARGUMENT....................................................... 9

I. A.W.’S WAIVER OF HIS LEGAL RIGHTS WAS NOT KNOWING, INTELLIGENT, AND VOLUNTARY.................................9

A. Giving A.W. the Miranda Warnings in Spanish Precluded His Knowing and Intelligent Waiver. .........12

B. The Text Used in the Spanish Language Miranda Warnings Given to A.W. Was Constitutionally Infirm. ...21

C. Requiring Police Officers to Administer Miranda Warnings to Bilingual Juveniles in Both Their Dominant and Heritage Languages Would Not Impose an Undue Burden on Law Enforcement. ......................26

II. BECAUSE THE POLICE FAILED TO ACCORD A.W. THE SPECIAL PROTECTIONS REQUIRED IN JUVENILE INTERROGATIONS, HIS STATEMENT WAS NOT KNOWINGLY AND INTELLIGENTLY MADE AND MUST BE SUPPRESSED........................................27

A. Adolescents Are Developmentally Immature and Therefore Do Not Have the Same Judgment and Reasoning Capabilities as Adults. .....................28

B. The Developmental Differences that Distinguish Adolescents from Adults Render Them More Likely to Waive Their Constitutional Rights and More Susceptible to Police Interrogation Tactics. ..........32

C. Courts long have held that, due to their developmental immaturity, youth require special protections during police interrogations. .............36

III. BECAUSE A.W.’S FATHER WAS NEITHER “TRULY UNAVAILABLE” NOR “UNWILLING” TO BE PRESENT WITHIN THE MEANING OF STATE V. PRESHA, HIS EXCLUSION FROM THE INTERROGATION

ii

COMPELS SUPPRESSION OF A.W.’S STATEMENT...................43

A. A.W.’s Father Removal From the Interrogation Was Not the Result of a Knowing or Intelligent Waiver .....44

B. Because Detective Lopez Failed To Use “Utmost Fairness” In Her Interrogation Of A.W., And In Light Of His Developmental Immaturity, A.W.’s Statement Was Not Knowingly, Intelligently, And Voluntarily Made, And Must Be Suppressed. .............51

CONCLUSION.................................................... 54

iii

TABLE OF AUTHORITIES

Cases

Colorado v. Connelly, 479 U.S. 157 (1986)..................... 11

Coyote v. United States, 380 F.2d 305 (10th Cir.), cert. denied, 389 U.S. 992 (1967) ........................... 13

Eddings v. Oklahoma 455 U.S. 104 (1978)....................... 39

Gallegos v. Colorado, 370 U.S. 49 (1962)..................... 37

Graham v. Florida, 130 S. Ct. 2011 (2010)..................... 39

Haley v. Ohio, 332 U.S. 596 (1948)............................ 37

In re Carlo, 48 N.J. 224 (1966)............................... 40

In re Gault, 387 U.S. 1 (1967)............................ 21, 38

In re Martin, 90 N.J. 295 (1982)............................... 9

In re O.F., 327 N.J. Super. 102 (App. Div. 1999).............. 49

J.D.B. v. North Carolina, 131 S. Ct. 2394 (2011).............. 38

Lego v. Twomey, 404 U.S. 477 (1972)........................... 11

Metrop. de Préstamos v. López de Victoria, 141 D.P.R. 844 (1996) .................................................. 23

Moran v. Burbine, 475 U.S. 412 (1986)..................... 10, 12

People v. Alberto, 877 N.Y.S.2d 628 (Dist. Ct. Suffolk Cty. 2008) .................................................. 19

Pueblo v. Gonzalez Vasquez, No. JCD2009–0657, 2011 WL 1583830 (P.R. Cir. Feb. 24, 2011) ........................... 23

Puerto Rico v. Vazquez Diaz, No. GPD2003–G0126, 2004 WL 2267259 (P.R. Cir. Jun. 29, 2004) ........................ 25

Roper v. Simmons, 543 U.S. 551 (2005)......................... 39

State ex rel P.M.P., 200 N.J. 166 (2009)...................... 41

State ex. Rel. Q.N., 179 N.J. 165 (2004).......... 15, 41, 46, 50

iv

State in re A.S., 203 N.J. 131 (2010)............. 20, 26, 40, 42

State v Galloway, 133 N.J. 654 (1993)......................... 39

State v. Bode, 108 N.J. Super. 363 (App. Div. 1970)........... 13

State v. Burris, 145 N.J. 509 (1996)........................... 9

State v. Cooper, 151 N.J. 326 (1997).......................... 12

State v. Hartley, 103 N.J. 252 (1986).......................... 9

State v. Kelly, 61 N.J. 283 (1972)........................ 10, 11

State v. Mejia, 141 N.J. 475 (1995)........................... 12

State v. Miller, 76 N.J. 392 (1978)........................... 11

State v. Ortiz, 766 N.W.2d 244 (Iowa 2009).................... 24

State v. Presha, 163 N.J. 304 (2000)...................... passim

State v. Reed, 133 N.J. 237 (1993)........................ 10, 11

State v. Yough, 49 N.J. 587 (1967)........................ 10, 11

Thompson v. Oklahoma, 487 U.S. 815 (1988)..................... 39

United States v. Perez-Lopez, 348 F.3d 839 (9th Cir. 2003) ................................................... 23, 24

N.J.S.A. 2C:14-2a(1)........................................... 1

Statutes

Abigail A. Baird and Jonathan A. Fugelsand,

Other Authorities

The Emergence of Consequential Thought: Evidence from Neuroscience

Allison D. Redlich and Gail S. Goodman,

, 359 Phil. Transactions Royal Soc’y B: Biological Scis. 1797 (2004) ................................ 32

Taking Responsibility for an Act Not Committed: The Influence of Age and Suggestability

Allison Redlich,

, 27 Law & Hum. Behav. 141 (2003) ........................................... 35

The Susceptibility of Juveniles to False Confessions and False Guilty Pleas, 62 Rutgers

v

L. Rev. 943 (2010) .......................................... 36

Barry C. Feld, Waiver of Legal Rights

Burns Institute, DISPARATE MINORITY CONFINEMENT FACT SHEET, available at http://www.burnsinstitute.org/article.php?id=55 ............. 26

, in YOUTH ON TRIAL, 105 (Thomas Grisso & Robert G. Schwartz eds., 2000) ................................................... 32, 34

C. Patrick Proctor et al., Language Maintenance versus Language of Instruction: Spanish Reading Development among Latino and Latina Bilingual Learners

Deborah K. Cooper, Juveniles' Understanding of Trial-Related Information: Are They Competent Defendants, 15 Behav. Sci. & L. 167 (1997) .............................. 35

, 66 JOURNAL OF SOCIAL ISSUES 79 (2010) ..................................... 17

Diccionario de la Real Academia Española

Elizabeth Cauffman et al.,

...................... 22

Age Differences in Affective Decision Making as Indexed by Performance on the Iowa Gambling Test

Elizabeth S. Scott,

, Developmental Psychol. 1 (2010) ...................................................... 29

Criminal Responsibility in Adolescence: Lessons from Developmental Psychology

Ellen R. Fulmer,

, in YOUTH ON TRIAL 291 (Thomas Grisso & Robert G. Schwartz eds., 2000) ................................ 28, 29, 30

Novak v. Commonwealth: Are Virginia Courts Providing a Special Protection to Virginia’s Juvenile Defendants?

Eshel et al.,

, 30 U. Rich. L. Rev. 935 (1996) ........ 33

Neural Substrates of Choice Selection in Adults and Adolesents: Development of the Ventrolteral Prefrontal and Anterior Cingulate Cortices

Executive Summary, THE GOVERNOR’S BLUE RIBBON ADVISORY PANEL ON IMMIGRANT POLICY, REPORT TO GOVERNOR JON S. CORZINE (2009) .............................................. 26

, 45 Neuropsychologia 1270-1271 (2007) .............. 31

Francine M. Benes, The Development of Prefrontal Cortex: The Maturation of Neurotransmitter Systems and Their Interactions, in Handbook of Cognitive Neuroscience 79 (Charles A. Nelson & Monica Luciana eds., 2001) ................................................. 31

vi

Franklin E. Zimring, Penal Proportionality for the Youth Offender

Jari-Erik Nurmi,

, in YOUTH ON TRIAL 280 (Thomas Grisso & Robert G. Schwartz eds., 2000) ............................ 28

How Do Adolescents See Their Future? A Review of the Development of Future Orientation and Planning

Jeffrey Arnett,

, 11 Developmental Rev. 1 (1991) .................... 30

Reckless Behavior in Adolescence: A Developmental Perspective

Jeffrey L. Helms,

, 12 Developmental Rev. 339 (1992) ...................................................... 30

Analysis of Miranda Reading Levels Across Jurisdictions: Implications for Evaluating Waiver Competency

John Butt and Carmen Benjamin, A NEW REFERENCE GRAMMAR OF MODERN SPANISH (4th ed. 2004) ............................ 23

, 3 J. FORENSIC PSYCH. PRACT. 25 (2003) ...................................................... 17

K. King, Waiving Childhood Goodbye: How Juvenile Courts Fail To Protect Children From Unknowing, Unintelligent, And Involuntary Waivers Of Miranda Rights

Kassin & Gudjonsson, The Psychology of Confession Evidence: A Review .......................................... 35

, 2006 Wis. L. Rev. 431 ............................... 17

Lawrence Steinburg et al., Are Adolescents Less Mature Than Adults? Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA “Flip-Flop,”

Richard Rogers et al.,

64 Am. Psychologist 583 (2009) ................................ 31

Spanish Translations of Miranda Warnings and the Totality of the Circumstances

Richard Rogers, et al.,

, 33 Law Hum. Behav. 61 (2009) ................................... 18

The Comprehensibility and Content of Juvenile Miranda Warnings

Rona Abramovitch, et al.,

, 14 PSYCH. PUB. POL. & L. 63 (2008) ......................................... 18

Young Persons’ Comprehension of Waivers in Criminal Proceedings

Thomas Grisso,

, 35 Canadian Journal of Criminology 309 (1993) ........................... 33

Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis, 68 Cal. L. Rev. 1134 (1980) .................................................. 17, 33

vii

Thomas Grisso, What We Know About Youths’ Capacities as Trial Defendants

U.S. Census Bureau, New Jersey State QuickFacts............... 26

in YOUTH ON TRIAL 139 (Thomas Grisso & Robert G. Schwartz eds., 2000) ..................... 34

Virginia C. Mueller Gathercole, Enlli Môn Thomas, Bilingual First-Language Development: Dominant Language Takeover, Threatened Minority Language Take-Up

WORDREFERENCE.COM, Concise Oxford Spanish Dictionary (2009) ...................................................... 22

, 12 BILINGUALISM: LANGUAGE AND COGNITION 213 (2009) ............ 16

WORDREFERENCE.COM, DICCIONARIO ESPASA TÉRMINOS JURÍDICOS ................ 25

1

INTRODUCTION

Amicus Curiae American Civil Liberties Union of New Jersey

respectfully submits this brief in support of Petitioner-

Defendant A.W. and urges reversal of the adjudication of

delinquency entered below.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Amicus adopt and incorporate by reference the Statement of

Facts and Statement of Procedural History contained in

Appellant’s brief in the Appellate Division below. See Brief of

Juvenile-Appellant A.W., State of New Jersey In the Interest of

A.W.

The record further establishes the following. A.W. was

questioned regarding allegations that, if proved against an

adult, would constitute aggravated sexual assault in violation

of N.J.S.A. 2C:14-2a(1). Detective Janet Lopez was an

investigator with the Union County Prosecutor’s Office assigned

to the Child Abuse Unit. When she interrogated defendant A.W.

on November 26, 2008, he was 13 years old and in the eighth

grade. Ja31. A.W.’s father, who speaks only Spanish, was

, No. A-0244-09T2, dated May 25, 2010. The Appellate

Division issued a per curiam opinion on February 3, 2011,

affirming the adjudication of delinquency. This Court granted

A.W.’s Petition for Certification on September 9, 2011.

2

present when the interrogation started at 10:20 AM. Ja2.1

Detective Lopez first introduced herself, in Spanish, as an

officer with the Union County Prosecutor’s office. She then

stated, “I’m going to talk in Spanish, because you [A.W.’s

father] don’t understand English,”2 which the father

acknowledged.3

1 References to the transcript of the interrogation of A.W.

by Detective Lopez are in the form “Ja__,” referring to their pagination in the Joint Appendix filed in the Appellate Division.

Ja2. Detective Lopez further noted that “Your

son speaks in Spanish and in English, okay.” Ja2. Before she

asked him any questions, however, Detective Lopez promised that

if A.W. did not “feel comfortable” speaking in Spanish, he could

speak in English “at any moment,” and that she would then

translate into Spanish so his father could understand. Ja2.

2 This is the English translation contained in the transcript. The Spanish transcription, however, reads “[V]oy hablar en español, porque usted entiende español” (Ja2), which is correctly translated as “I will speak in Spanish because you understand Spanish.” While in the context of this case there may be no significant distinction between “you don’t understand English” and “you understand Spanish,” the variance does indicate that the translator was engaging in a form of periphrasis that would normally not satisfy professional translation standards.

Additionally, the transcriber wrote “voy hablar” instead of “voy a hablar,” which is a nominal grammatical feature of the phrase “ir a + infinitive,” even if it is not distinguishable phonetically.

3 When she spoke in Spanish, Detective Lopez used the “usted” construction, which is a formal grammatical structure in Spanish that indicates a token of respect for the listener.

3

Detective Lopez came equipped with Spanish-language Miranda

waiver forms. She gave the Spanish Miranda waivers to A.W. and

his father at 10:22 AM. Ja4. Detective Lopez asked A.W. if he

read in Spanish and according to the transcript, A.W. replied,

“Yes, a little.”4

Prior to signing the Miranda waiver, there were several

indications that A.W. was more comfortable speaking in English

than in Spanish. When Detective Lopez asked, in Spanish, who

Ja5. Detective Lopez then asked him to read

the waiver form aloud, in Spanish. A.W. tried to do so, but he

could not read the Spanish words for “indicated,” “threats,”

“compelled,” “coerced,” “give up,” or “above.” Ja7-8.

Detective Lopez told him how to say these words. She also

explained that “coerced” meant “forced,” but did not explain any

of the other words. Several times, she asked A.W. in Spanish if

he understood his rights, and he said, “Uh-huh,” and “Sí.” A.W.

did not ask any questions about his rights, and Detective Lopez

did not tell A.W. any other information about his rights except

what was in the waiver form. By 10:25 AM, five minutes after

the interview began, both A.W. and his father had signed the

form. Ja9. At no time did Detective Lopez issue the Miranda

warnings in English or provide A.W. with an English-language

waiver form.

4 For discussion of the possible error in the transcript’s

translation of “Sí, poco,” however, see infra note 7.

4

his teacher was in school, A.W. replied in English that his

teacher was “Mister Henderson.” While reading the Spanish

Miranda waiver aloud, he spoke in English again, asking

Detective Lopez, “[W]hat’s this?” in reference to the Spanish

word for “indicated.” Ja7. She told him what the word was, but

she did not translate his question into Spanish for his father’s

benefit.

Detective Lopez proceeded to conduct the interrogation in

Spanish. After about fifteen minutes, sometime before 10:40 AM,

A.W. asked Detective Lopez, “Can I say it in English?”

Detective Lopez responded, in English, “Yeah.” Ja 17. She then

spoke with A.W. in English only, without Spanish translation,

and noted that “he’s concerned about you” (presumably referring

to A.W.’s father), but then noted that she wanted “to be able to

get everything out in the open,” and that with juveniles the

“court system they don’t try to . . . they don’t want to

incarcerate people, they don’t want to, um . . . throw the kids

in jail or anything like that and throw away the key . . . .”

Ja22. Detective Lopez then repeated, in English only, that

“it’s very very important that you be honest with me and that if

that, if this happened at least one time, you have to say it

Detective Lopez then reverted to, and continued the

questioning in, Spanish. But a few minutes later, Detective

.

Okay?” Ja22.

5

Lopez again spoke to A.W in English only. She told A.W.,

“[Y]our dad’s here and he’s probably, um...he’s a big guy[.]”

Ja 22. She explained that “if something did happen,” then the

court system would “get . . . the right help” for him. Ja22.

Detective Lopez did not interpret what she had said into Spanish

for A.W.’s father, but instead asked A.W. new questions, again

in Spanish. Ja23.

Detective Lopez then went on to tell A.W. about his cousin

purportedly confessing about his involvement, and the victim

also identifying A.W. by name. Ja23. A.W. responded by asking

her, in English, “Can I say something?” He then asked to “tell

everything in private,” without his father present. Ja23.

Detective Lopez responded immediately “Yeah, I’ll tell him what

you just said, Okay,” and then said to the father, “Okay, [A.W.]

said if he can tell me everything . . . [i]n private, without

you being here.” Ja23-24. A.W.’s father then began to ask “Y

porque no puede decir la [inaudible],”5

5 The phonetic transcription in the original Spanish, and

particularly the word “porque,” is probably incorrect, since as transcribed A.W.’s father’s response to Detective Lopez would be meaningless in this context:

but A.W. said that he

would “explain later.” Ja24.

J.L.: . . . [i]n private without you being here.

F: And because he can’t say (inaudible.)

The father’s original statement is rendered sensible, however, by correcting the incorrect transcription of “porque,” which means “because,” so that it reads “por qué,” which means “why,”

6

Detective Lopez then gave A.W.’s father another waiver

form, which she read to him and had him complete and sign,

telling him that “you have to sign a form . . . because I’m

going to interview him alone.” Ja24. She did not tell him

explicitly that he had the right to refuse to sign the form or

remain in the room despite his son’s apparent wishes. Although

she told the father that he could return to the room, she did

not translate this or the form into English for A.W., nor did

she tell him that he could ask to have his father back in the

room at any time. Ja24. Although the original Miranda form

included language cautioning against waiver of parental

presence, Detective Lopez neither translated this into English

for A.W. nor repeated the warning when A.W. asked his father to

leave. After A.W. noted that he wanted to speak to Detective

Lopez, she noted to the father that “Yes, but I can’t force you

to [inaudible],” and then the father said “No, it’s fine, it’s

fine.” Ja25. Detective Lopez then simply asked the father to

sign the form, after which he left the room.

Detective Lopez repeatedly referred to the more open

atmosphere now that his father was gone. She first said to

and by attaching the definite article “la” to the infinitive “decir” at the point when the transcript states that the audio has become inaudible. With those changes, the father is shown to protest, sensibly and predictably in response to being asked to leave, why his son cannot make a statement while he is present: “Y por qué no puede decirla (inaudible)” or, “And why can’t he say it (inaudible).”

7

A.W., “You know what[,] dad’s not here,” Ja25, and then

emphasized that “you’re going to have this big burden in your

heart and you’re just not going to be happy, okay. So this is

your time, dad left the room, dad left the room, you have to

start being honest

I know that you don’t want to walk out there and face your dad, um . . . but I think that if you start telling me exactly what happened you are going to walk out of here feeling a lot better, even though you have to [inaudible] and don’t worry about your dad, I’ll talk to your dad, and explain everything.

, okay. . . .” Ja27 (emphasis added). Later,

she returned to the theme, noting that she liked “the fact that

you finally realized that you felt more comfortable with my dad

out there, althought [sic] you know you can have your dad come

in at any time.” Ja29. Detective Lopez then continued the

interrogation without any break or pause. Anticipating any

possible anxiety about his father’s absence, Detective Lopez

said:

Ja31. Immediately afterward, A.W. made the incriminating

statements that were used against him at trial.

At trial, Detective Lopez testified about the interview

techniques in which she was trained. She stated that her goal

when interrogating A.W. was to establish a rapport with A.W. and

to elicit the truth from him. She stated that she believed

A.W.’s confession was true because it was “pretty much”

consistent with facts that were related by the victim. State of

New Jersey In the Interest of A.W., No. A-0244-09T2, type op. at

8

5 (App. Div. Feb. 3, 2011)(per curiam). At trial, A.W.

testified that, in retrospect, he was wrong to have excluded his

father from a portion of the interview; that after his father

left, Detective Lopez kept cutting off his professions of

innocence and pressuring him; that he became aggravated as a

result; and that he finally told Lopez "something she wanted to

hear" that was not true.

SUMMARY OF ARGUMENT

Id.

This case raises several issues of first impression. Was

13-year-old A.W.’s waiver of his Miranda rights knowing and

voluntary when the interrogating officer knew that he and his

father spoke different dominant languages but nevertheless chose

to administer the Miranda warnings only in Spanish, the dominant

language of the parent? To what extent did A.W.’s

developmental immaturity exacerbate the confusion caused by the

detective’s failure to issue the warnings in English? Was the

“utmost fairness” standard that governs juvenile interrogations

violated where the detective exploited language differences in

order to effect the departure of A.W.’s father from the

interrogation room? Finally, did the detective’s use of English

at critical points in the interrogation render A.W.’s father

unable to understand the consequences of leaving the

interrogation room or to act as a “buffer” for his son, and did

the father’s resultant exclusion violate the “bright-line rule

9

for confessions by juveniles under the age of fourteen”

announced in State v. Presha

Amicus submits that each of these questions, considered

alone or together, lead ineluctably to the conclusion that

A.W.’s waiver of his legal rights, and his father’s exclusion

from the interrogation, were neither knowing nor voluntary, and

that the courts below erred in denying suppression of his

statements.

, 163 N.J. 304, 321 (2000).

ARGUMENT

I. A.W.’S WAIVER OF HIS LEGAL RIGHTS WAS NOT KNOWING, INTELLIGENT, AND VOLUNTARY.

The privilege against self-incrimination is a long-standing

protection in the criminal law found both in the federal and

state constitutions. State v. Hartley, 103 N.J. 252, 260

(1986). It is also firmly embedded in our common law and rules

of evidence. State v. Presha, 163 N.J. 304, 312-13

(2000)(citing Hartley, 103 N.J. 252 at 260(quoting In re Martin,

90 N.J. 295, 331 (1982). Although a suspect is free to waive

his rights, such waiver must never be the product of police

coercion. “Accordingly, for a confession to be admissible as

evidence, prosecutors must prove beyond a reasonable doubt that

the suspect's waiver was knowing, intelligent, and voluntary in

light of all the circumstances.” Id. at 313 (emphasis added)

(citing State v. Burris, 145 N.J. 509, 534 (1996); State v.

10

Kelly, 61 N.J. 283, 294 (1972)). “At the root of the inquiry is

whether a suspect's will has been overborne by police conduct.”

Id.

Indeed, New Jersey’s courts have extended the protections

against self-incrimination far beyond the parameters established

by the federal courts. As observed by Justice Handler in his

concurrence in

Hartley, New Jersey courts have “actively

embraced the opportunity to move beyond the guidelines of

federal directives in pursuit of an unyielding commitment to

assure the proper admissibility of confessions." 103 N.J. at

301 (citing State v. Yough, 49 N.J. 587, 601 (1967)). In State

v. Reed, the court held that when police know that an attorney

has been retained for a suspect but fail to advise the suspect

of that fact, any waiver of the privilege against self-

incrimination is rendered invalid. 133 N.J. 237, 269 (1993).

This was a direct departure from the U.S. Supreme Court’s ruling

in Moran v. Burbine, 475 U.S. 412, 421 (1986), in which the

court held that police had no obligation under federal

constitutional law to advise a defendant that his sister had

retained an attorney to advise him. 475 U.S. 412, 422. The Reed

court observed that the “ancillary rights” that effectuate the

privilege against self-incrimination, such as the right to seek

the advice of counsel, “may be given even greater protection

under our State law than that accorded the federal right.” 133

11

N.J. at 252. The court further elucidated those expansive

rights in New Jersey:

The history of our case law reflects a strong commitment to enhance those ancillary rights to forestall the possible use of coerced confessions. Our own jurisprudence and legal traditions, in light of the distinctive origin and development of the privilege against self incrimination in New Jersey, State v. Williams, 93 N.J. 39 (1983), impel us to maximize the protections of the ancillary rights, including especially the right to counsel, to vindicate fully the privilege against self-incrimination.

Id.

Significantly, it also is long established in New Jersey

that when government seeks to establish that a statement is

truly voluntary and thus admissible, it must do so beyond a

reasonable doubt.

at 253.

State v. Yough, 49 N.J. 587, 600-01 (1967).

In the ensuing decades, New Jersey has continued to adhere to

this exacting standard. Kelly, 61 N.J. 283 at 293; State v.

Miller, 76 N.J. 392, 404-405 (1978). In contrast, the federal

standard is far less exacting, and the U.S. Supreme Court has

held that when a state bears the burden of proof in a motion to

suppress a statement that the defendant claims was obtained in

violation of the Miranda doctrine, “the State need prove waiver

only be a preponderance of the evidence.” Colorado v. Connelly,

479 U.S. 157, 167 (1986); see also, Lego v. Twomey, 404 U.S.

477, 488-489 (1972).

12

Especially given the incapacities caused by A.W.’s age and

language limitations, the State has not met its burden in

establishing the voluntariness of the confession.

A.

It is fundamental that in order to be effective, the

Miranda warnings must be given in language that is fully

understood by the person who is waiving the right against self-

incrimination:

Giving A.W. the Miranda Warnings in Spanish Precluded His Knowing and Intelligent Waiver.

The inquiry has two distinct dimensions. First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine

This Court has recognized that "[t]he problem of

communicating Miranda rights to non-English-speaking defendants

is important, particularly in a state with so diverse a

population."

, 475 U.S. 412, 421 (1986).

State v. Mejia, 141 N.J. 475, 503 (1995),

overruled on other grounds, State v. Cooper, 151 N.J. 326

(1997). Miranda requires "'meaningful advice to the unlettered

and unlearned in language which he [or she] can comprehend and

on which he [or she] can knowingly act.'" State v. Bode, 108

13

N.J. Super. 363, 367 (App. Div. 1970) (quoting Coyote v. United

States, 380 F.2d 305, 308 (10th Cir.), cert. denied

The record provides specific evidence that A.W. struggled

with and did not understand the Miranda warnings he was given.

In the following portion of the interrogation, A.W. clearly

cannot read the Miranda waiver without assistance from Detective

Lopez, who makes no effort to explain any of the unfamiliar

terms to him:

, 389 U.S.

992 (1967)). Detective Lopez thus erred in administering the

Miranda warnings to A.W. in Spanish, when she knew that English

was his dominant language.

6

JL: At any moment that your son doesn’t feel comfortable um… in Spanish and wants to say something in English, he can say something in English and um…I will translate, okay?

*** JL: [to A.W.] [D]o you read Spanish? AW: Yes, a little.7

6 Unless otherwise indicated, quotations from the

interrogation transcript reflect the English translation of statements made in Spanish. Thus, this portion of the interrogation was conducted entirely in Spanish.

7 The original Spanish, “Sí, poco,” is translated in the transcript as “Yes, a little.” That translation is incorrect. It should read, “Yes, not much.” The source of the error is that the translation assumes A.W. meant to use the indefinite article “un,” when he did not use it in fact. A.W.’s omission of “un” is lexically significant. For example, there is a difference between “hasta la fecha poco se ha hecho,” which means “so far not much has been done,” and “Windows tarda un poco más,” which means “Windows takes a little longer.” See Translations of the English term “not much”,LINGUEE,

14

JL: Can you please read number three? AW: All that?

*** JL: Okay, okay then you can read this out loud. AW: Everything? JL: Yes, you may read. AW: I read the above exposition8 of my rights, si…

what’s this?9

JL: Indicated.10

AW: Indicated and I understand them and I’m willing to answer the questions and give you a statement, I want my father to be present, I want a lawyer to be present during this questioning, I know and I can understand everything that I’m doing, no threats or promises have been made to me.

JL: Threats.

http://bit.ly/srnUqi; Turn Off A Computer: Frequently Asked Questions, MICROSOFT, http://bit.ly/50XrFw and in Spanish at http://bit.ly/sJHOpn.

8 The original Spanish, “exposición,” is translated as its English cognate, “exposition.” While not strictly incorrect, a better contextual translation would be “statement.” See Exposición Definition, WORDREFERENCE.COM, Concise Oxford Spanish Dictionary (2009) (Nov. 20 2011, 7:40 PM), http:// www.wordreference.com/es/en/translation.asp?spen=exposicion. Importantly, “exposición” carries a formal register, and A.W. therefore may never have heard that word before encountering it on the waiver form. See id.

9 The original reading in Spanish was, “Ha leído esta exposición de mis derechos anteriormente, si…what’s this?”

10 Señalados is the original word that A.W. tried to read. He tried to pronounce the beginning of the word as “si”(see) rather than “se”(seh)

15

AW: Not compeled [sic] or. JL: Coerced. AW: Any type of coercion has been used against me,

for me to… JL: Give up. AW: Give up my rights that are… JL: Above. AW: Mentioned above. (Ja5-Ja8).

After A.W.’s laborious attempt to read the waiver language

in Spanish, and since she was aware of A.W.’s Spanish language

deficiencies, Detective Lopez was obligated to issue the Miranda

warnings to him in English. The process would have taken less

than two minutes and would not have impeded her investigation in

any way. There is, quite simply, no excuse for her failure to

do so.

Whether A.W. understood the Spanish Miranda form is a

critical question, because courts must evaluate whether a

confession is voluntary from the perspective of the child. See

State ex. Rel. Q.N., 179 N.J. 165, 174 (2004). In this case,

the record contains ample evidence that Detective Lopez knew, or

suspected, that A.W. was English-dominant from the beginning of

the interrogation, when she stated that whenever he did not

“feel comfortable” in Spanish, he could speak in English instead

and she would translate into Spanish for his father. Ja2. A.W.

16

did, in fact, switch to English at several critical points in

the ensuing interrogation. See

Even if A.W. had been able to read the Miranda form with

greater fluency, it is unlikely that he would have understood

it. Like A.W., many American children speak a first, or

“heritage,” language at home and a second language, usually

English, in school and in their communities. When bilingual

children do not receive any formal instruction in their heritage

language beyond the basics they learn at home, they often reach

lower levels of achievement in their first language than in

their dominant second language.

Ja3; Ja7; Ja17;Ja23.

See generally Virginia C.

Mueller Gathercole, Enlli Môn Thomas, Bilingual First-Language

Development: Dominant Language Takeover, Threatened Minority

Language Take-Up

When these first-generation children established families of their own, English typically took its place as the dominant language, with the heritage language present but relegated to a distinct minority status. Second-generation children tended not to develop strong heritage language proficiency and witnessed the last vestiges of these languages in their grandparents. By the third generation, the heritage language had all but vanished, replaced by English monolingualism.

, 12 BILINGUALISM: LANGUAGE AND COGNITION 213 (2009).

This trend contributes to the common pattern of heritage

language loss between the generation of monolingual parents and

the first generation of bilingual children.

17

C. Patrick Proctor et al., Language Maintenance versus Language

of Instruction: Spanish Reading Development among Latino and

Latina Bilingual Learners

An analysis of the English Miranda waiver form drafted by

the New Jersey Department of Law and Public Safety indicates

that comprehension of its language requires at least an eighth

or ninth grade reading level.

, 66 J. SOCIAL ISSUES 79, 80 (2010).

See Jeffrey L. Helms, Analysis of

Miranda Reading Levels Across Jurisdictions: Implications for

Evaluating Waiver Competency, 3 J. FORENSIC PSYCH. PRACT. 25, 31

(2003); see generally, K. King, Waiving Childhood Goodbye: How

Juvenile Courts Fail To Protect Children From Unknowing,

Unintelligent, And Involuntary Waivers Of Miranda Rights, 2006

WIS. L. REV. 431; Thomas Grisso, Juveniles' Capacities to Waive

Miranda Rights: An Empirical Analysis

Moreover:

, 68 CAL. L. REV. 1134

(1980).

Typical warnings require at least an eighth-grade education for understanding Components 2 (right to an attorney) and 5 (continuing rights). Access to free legal services and the option to consult with a parent or guardian generally require at least a 10th-grade education. . . . Reading levels do not fully account for the presence of unfamiliar words or legalistic terms. In examining the 50 most common words (see Table 3), several legal terms are likely to be misunderstood by juvenile suspects. For example, the word right and its plural rights have a legal meaning that requires at least an eighth-grade education before about three fourths of

18

students can recognize the correct definition. Most adolescent suspects cannot understand the term appointed or its relevance to securing counsel. Of even greater concern, many juvenile warnings expect youthful suspects to understand and accurately apply the word waive as a key component of their decision making. However, waive requires more than a high school education for adequate comprehension.

Richard Rogers, et al., The Comprehensibility and Content of

Juvenile Miranda Warnings

This Court previously has held that “[r]ecitation of the

Miranda warnings to a boy of 10 even when they are explained is

undoubtedly meaningless. Such a boy certainly lacks the

capability to fully understand the meaning of his rights. Thus,

he cannot make a knowing and intelligent waiver of something he

cannot understand.”

, 14 PSYCH. PUB. POL. & L. 63, 78

(2008)(emphasis in original).

State in Interest of S.H., 61 N.J. 108, 115

(1972). Because at least an eighth grade reading level is

required to understand New Jersey’s Miranda language, see Helms,

supra, children who are 10 years old and read at an age-

appropriate grade level cannot understand their Miranda rights.

See id.

Although a similar analysis does not appear to be available

for the reading level of New Jersey’s Spanish Miranda waiver

language, the national average reading level for Spanish Miranda

waivers is approximately sixth grade. Richard Rogers et al.,

Spanish Translations of Miranda Warnings and the Totality of the

Circumstances, 33 LAW HUM. BEHAV. 61 (2009)(“Although the typical

19

warning with an average Huerta Reading ease of 80.18 may appear

to require only a 6th or 7th grade reading level, nearly half

(48.5%) of the Miranda warnings include at least one component

that requires reading level comparable to a college

education.”).

A.W. was 13 at the time he was interrogated, just old

enough that he might have been able to understand his Miranda

rights in English. As the interrogation transcript illustrates,

however, his Spanish reading ability was below a level at which

he could plausibly have understood his rights in that language.

Particularly because she had witnessed A.W.’s struggle to read

the Spanish Miranda form, it was no more acceptable for

Detective Lopez to assume that he understood and knowingly

waived his rights than it was for the officers in S.H. to

pretend that a child of 10 understood Miranda warnings read to

him in English. Such practices cannot and do not yield

constitutionally adequate waivers. See S.H., 61 N.J. at 115;

see also People v. Alberto, 877 N.Y.S.2d 628, 632-33 (Dist. Ct.

Suffolk Cty. 2008)(defendant who had limited knowledge of

English language did not knowingly and voluntarily waive his

Miranda rights, even if a Spanish-speaking officer spoke with

defendant, where the officer who took defendant's written

statement did not understand the conversation, and written

statement displayed a fluency in English which was inconsistent

20

with defendant's difficulties in speaking English). See also

State in re A.S.

This Court further has recognized in other contexts that an

individual’s language deficiency creates a “fortified” duty for

law enforcement officials to explain a defendant’s Miranda

rights.

, 203 N.J. 131, 149 (2010) (requiring “a clear

and easy-to-understand explanation” for a fourteen year old

child who had a low-average I.Q. of 83, who read at a third-

grade level, and who had no prior experience with the justice

system in order for her to be “meaningfully inform[ed] . . . of

her constitutional rights.”).

Avant v. Clifford

The heightened duty in the case of an illiterate adult

defendant must apply, a fortiori, in the case of a child,

especially when the child is unable to read the Miranda waiver

given to him by police, and when his interrogator conceded at

the outset that the child might not “feel comfortable” in

Spanish. Furthermore, a heightened duty to advise a child of

his right to remain silent, when he is unable to read the

Miranda waiver given to him, is consistent with, and may be

required by, the mandate that law enforcement must question

children with the “utmost fairness” when they are not in the

presence of their parents.

, 67 N.J. 496, 539 (1975) (illiterate

prisoner’s entitlement to be advised of right to remain silent

“should be fortified.”).

S.H., 61 N.J. at 115.

21

Finally, the possibility that A.W. may have been old enough

to have understood his rights in English is of critical import.

Detective Lopez could have provided bilingual forms at the

outset, but did not. Once she had reason to know that he did

not fully understand the Spanish translation, she could have

briefly paused to administer the warnings again, in English, but

did not. Rather than taking “greatest care” to insure the

integrity of the interrogation, she waited as he attempted to

read the Spanish waiver aloud, she waited as he stumbled over

the Spanish words, but she did not take even a brief moment to

read his rights to him in English. See In re Gault

B.

, 387 U.S. 1,

55 (1967)(“[T]he greatest care must be taken to assure that the

admission was voluntary, in the sense not only that it was not

coerced or suggested, but also that it was not the product of

ignorance of rights or of adolescent fantasy, fright or

despair.”). Detective Lopez’s failure to do so led to an

unknowing and involuntary waiver of privilege against self-

incrimination and the right to counsel, compelling suppression

of A.W.’s inculpatory statements.

Even if A.W. had sufficient Spanish language ability, the

Miranda warnings read to A.W. and his father are sometimes

unintelligible in Spanish, and would confuse and mislead even a

The Text Used in the Spanish Language Miranda Warnings Given to A.W. Was Constitutionally Infirm.

22

well-educated native speaker.11

Perhaps the most legally egregious example is Detective

Lopez’s use of the word “solicitar”

Where they are intelligible,

they contain misinformation that is improperly obscured by the

translation of record, which edits the original Spanish to make

it appear adequate where it was not.

12

11 Counsel for Amicus Curiae is grateful for the translation

work and commentary in this section provided by Michael Bittoni. Mr. Bittoni is a professional Spanish-English translator and a third-year law student with the Rutgers Constitutional Litigation Clinic. His translation clients have included legal service organizations and individual attorneys working in civil rights and immigration cases. In addition, he has contracts with several professional translation agencies. Mr. Bittoni’s credentials, contact information, and background information are available on his website at www.michaelbittoni.com. Mr. Bittoni is competent to provide such work and commentary under the guidelines set forth in Rule 1:14 and in New Jersey’s Code of Professional Conduct for Interpreters, Transliterators, and Translators, available at www.judiciary.state.nj.us/ interpreters/codepub.pdf.

regarding A.W.’s right to

Mr. Bittoni, is not offered as a Spanish language expert at this phase in the proceedings, but his work is merely cited to support Amicus’s arguments that, given the facial flaws in translation, the record does not support the ultimate legal conclusion that the State has discharged its burden of establishing that A.W. knowingly, intelligently and voluntarily waived his right against self-incrimination beyond a reasonable doubt.

12 One bilingual Spanish-English dictionary defines “solicitar” as “to apply for,” “to request,” or “to ask for.” Solicitar Definition, WORDREFERENCE.COM, Concise Oxford Spanish Dictionary (2009) (available at http://www.wordreference.com/es/en/ translation.asp?spen=solicitar. The leading monolingual dictionary of the Spanish language, the Diccionario de la Real Academia Española, provides seven definitions for “solicitar,” each of which reflects its constitutional infirmity in this context. See Perez-Lopez, 348 F.3d at 848-49. One of those

23

demand an attorney. The United States Court of Appeals for the

Ninth Circuit, in United States v. Perez-Lopez

Other language used by Detective Lopez is similarly

deficient. For example, at the beginning of the interrogation,

Detective Lopez tells A.W. and his father, “[A]ntes de hacerle

cualquier [sic]

, 348 F.3d 839

(9th Cir. 2003), found that use of the word “solicitar,” in the

context of the right to an attorney in a criminal interrogation,

was “constitutionally infirm because it did not convey to [the

defendant] the government's obligation to appoint an attorney

for indigent accused,” (emphasis in original), and because it

“implies the possibility of rejection.” 348 F.3d at 848-49.

13 preguntas14

definitions, for example, is “to aspire to, to ask for, or to look for something with diligence and care.”

usted debe comprender sus derechos.”

13 “Cualquier preguntas” should have been written as “cualesquier preguntas.” The former phrase, in English, would be roughly equivalent to “anys questions.” It should be noted that the use of the singular “cualquier” where “cualesquier” would traditionally be appropriate is nowadays very common. John Butt and Carmen Benjamin, A NEW REFERENCE GRAMMAR OF MODERN SPANISH § 9.8 (4th ed. 2004). However, this use is no more appropriate in a legal document than would be the incorrect use of “who” instead of “whom,” especially when the document in question is as constitutionally significant as a waiver of Miranda rights. Puerto Rico’s courts, for example, commonly use the “cualesquier” form. See, e.g., Pueblo v. Gonzalez Vasquez, No. JCD2009–0657, 2011 WL 1583830 (P.R. Cir. Feb. 24, 2011) (“Entre las medidas que tiene un tribunal para evitar cualesquier conducta que tienda a impedir u obstruir la administración de la justicia, se encuentra la condena por desacato criminal.”) (emphasis added) (citing Metrop. de Préstamos v. López de Victoria, 141 D.P.R. 844 (1996)).

14 “Antes de hacerle cualquier preguntas” should have been written as “Antes de que se le hagan cualesquier preguntas...”

24

This sentence is incorrectly translated as, “[B]efore I ask you

any questions, you have to understand your rights.” Ja4.

However, the mere use of the word “deber,” rather than “deber

de” or “tener que,” suggests that it is preferable but not

mandatory for A.W. and his father to understand their rights,

and this sentence is thus constitutionally infirm in the same

way as the word “solicitar.” See, Perez-Lopez

In another example, Detective Lopez tells A.W. in Spanish,

“[C]ualquier cosa que diga pudiera ser utilizado en, en su

contra en la corte de la ley.” Ja4. The translation of record

renders this sentence as “[A]nything you say can and will be

used against you in a court of law.”

, 348 F.3d at 848-

49.

15

on account of the subject change between the main clause and the subordinate clause following the adverbial conjunction “antes de que.” Given the use of an infinitive following the preposition “antes de,” the sentence, in English, would sound something like “You should understand your rights before asking him any questions.” See, State v. Ortiz, 766 N.W.2d 244 (Iowa 2009) (holding that defendant did not knowingly and intelligently waive his Miranda rights at time of confession where literal translation of warnings that interpreter read to defendant was that he has a right to have an attorney present before he asked a question, rather than that he had the right to an attorney before being asked to answer any questions).

However, the verb “poder”

15 “Corte de la ley” is an incorrect translation for “court of law.” An acceptable translation is “tribunal de justicia.” See, e.g., Unicef, El trabajo del defensor de los niños at 4, available at http://www.unicef-irc.org/publications/ pdf/digest1s.pdf (last accessed November

juzgados ante un tribunal de justicia.”) (emphasis added).

25

is in the imperfect subjunctive and it is not paired with the

future tense, so that Detective Lopez actually said to A.W.,

“Anything you say might be used against you in a court of law.”

See Ja4 (emphasis added). This suggests that the interrogation

carried less risk than in fact it did.16

In addition to the inherent constitutional infirmity of the

language in the Union County Prosecutor’s Spanish Miranda waiver

form, the register of the language contributed to A.W.’s

inability to understand it. For example, the translation

incorrectly renders the Spanish term “tutor” as its false

English cognate, “tutor.” However, the Spanish term “tutor”

means “guardian” in English. Tutor definition,

WORDREFERENCE.COM, DICCIONARIO ESPASA TÉRMINOS JURÍDICOS (last accessed

Nov. 20 2011) (http://www.wordreference.com/ esenl/tutor). If

the translator hired by Union County to translate the original

Spanish did not understand the meaning of the legal word

“tutor,” then,

a fortiori

This Court has previously found that the “greatest care”

was not taken where an “incomplete” and “incorrect” explanation

, A.W. cannot be expected to have

understood the language in the Miranda waiver.

16 An acceptable translation for “can and will be used against

you” would be “puediera ser utilizada y se utilizará en su contra.” See Puerto Rico v. Vazquez Diaz, No. GPD2003–G0126, 2004 WL 2267259 (P.R. Cir. Jun. 29, 2004) (utilizing the future tense in the relevant language as “cualquier manifestación que haga podrá utilizarse en su contra.”)

26

of Miranda rights was given to a child. A.S., 203 N.J. 131 at

151. The Miranda rights given to A.W. were incomplete and

incorrect objectively, and A.W. did not understand most of the

operative Spanish words of the Miranda waiver. Thus, Detective

Lopez did not take the “greatest care” when she Mirandized A.W.

See

C.

id.

Twenty percent of New Jersey residents are foreign-born,

and almost a third, or 620,000, of the State’s children live in

immigrant families. Executive Summary, THE GOVERNOR’S BLUE

RIBBON ADVISORY PANEL ON IMMIGRANT POLICY, REPORT TO GOVERNOR JON

S. CORZINE, 2-3 (2009);

Requiring Police Officers to Administer Miranda Warnings to Bilingual Juveniles in Both Their Dominant and Heritage Languages Would Not Impose an Undue Burden on Law Enforcement.

see, U.S. Census Bureau, New Jersey State

QuickFacts, available at http://quickfacts.census.gov/qfd/

states/34000.html. In addition, many of these children are

members of minority groups or are children of color, placing

them at disproportionate risk of juvenile justice system

involvement and incarceration. Burns Institute, DISPARATE

MINORITY CONFINEMENT FACT SHEET, available at

http://www.burnsinstitute.org/article.php?id=55. If law

enforcement officials are permitted to use inadequate,

incomprehensible, or misleading language in the administration

of Miranda warnings to bilingual children, they will continue to

27

be more vulnerable to police over-reaching, and, therefore,

systemic involvement, than their monolingual peers.

This Court should adopt a rule requiring the police to

administer bilingual Miranda warnings to bilingual children. At

a minimum, officers who interrogate bilingual children must be

compelled to explain the Miranda rights in English, even if

waiver forms are provided in the heritage language for the

benefit of the child’s parent, guardian, or other friendly

adult. Having to administer the rights in both languages will

not lessen the effectiveness of law enforcement, but, rather,

help ensure the legality of waivers by striking an appropriate

balance between law enforcement efficiency concerns and

constitutional protection.

II. BECAUSE THE POLICE FAILED TO ACCORD A.W. THE SPECIAL PROTECTIONS REQUIRED IN JUVENILE INTERROGATIONS, HIS STATEMENT WAS NOT KNOWINGLY AND INTELLIGENTLY MADE AND MUST BE SUPPRESSED.

Human experience, psychological studies, and neuro-

scientific research teach us that young people do not act,

think, make decisions or process information like adults. Both

the United States and the New Jersey Supreme Courts have long

recognized these differences and, as a result, carved out

special protections for youth subjected to police interrogation.

Detective Lopez failed to accord those protections to A.W.,

exacerbating the confusion caused by the language deficiencies

28

discussed in Part I, supra,

A.

and further undermining the

voluntariness of his statements. Those statements, therefore,

should have been suppressed.

Adolescent development research confirms that young people

are less able to exercise self-control and are more impulsive

than adults. Experts have noted that “developmentally linked

predispositions and responses systematically affect youthful

decision-making in ways that may lead to harmful choices.”

Elizabeth S. Scott,

Adolescents Are Developmentally Immature and Therefore Do Not Have the Same Judgment and Reasoning Capabilities as Adults.

Criminal Responsibility in Adolescence:

Lessons from Developmental Psychology, in YOUTH ON TRIAL 291,304

(Thomas Grisso & Robert G. Schwartz eds., 2000). These harmful

choices are the result of adolescents’ inability to exercise

self-control. In fact, research confirms that “the developing

adolescent can only learn his or her way to fully developed

control by experience. This process will probably not be

completed until very late in the teen years.” Franklin E.

Zimring, Penal Proportionality for the Youth Offender, in YOUTH ON

TRIAL 280 (Thomas Grisso & Robert G. Schwartz eds., 2000). Thus,

even though most youth are more impulsive than adults, those in

earlier stages of adolescence, like A.W., are particularly

lacking in self-control. See id.

29

Youths also have a foreshortened time perspective and a

tendency to discount the importance of long-range future risks.

Generally, adolescents place less weight on the risks of their

actions than adults, and they are less aware of risks than are

adults. Scott, supra, at 304. They calculate the probability

of risks differently and value that probability differently from

adults. For instance, one study focused on the performance on a

gambling task of both adolescents and adults, aged 10 to 30, and

found that adolescents and adults displayed significant

differences with regard to risk and reward. The adolescents in

the study “may attend more to the potential rewards of a risky

decision than to the potential costs,[while] the adults tend to

consider both.” Elizabeth Cauffman et al., Age Differences in

Affective Decision Making as Indexed by Performance on the Iowa

Gambling Test, Developmental Psychol. 1, 11, 14 (2010). The

study concluded that risk and reward decision-making “improves

throughout adolescence” due to the adolescents’ increased

ability to regulate their responses to emotional and social

influences. Id

Furthermore, adolescents do not have the same capacity to

perceive and evaluate the consequences of their actions as do

adults. Because they lack a foundation of life experience,

adolescents are unable to contemplate and strongly envision the

future, or to anticipate and fully comprehend the future

. at 14.

30

consequences of their actions. Jeffrey Arnett, Reckless

Behavior in Adolescence: A Developmental Perspective, 12

DEVELOPMENTAL REV. 339, 351-52 (1992). Among adolescents ages 15-

17, realism in thinking about the future increases as they age

and mature. Jari-Erik Nurmi, How Do Adolescents See Their

Future? A Review of the Development of Future Orientation and

Planning

Moreover, it is widely recognized that adolescents are more

subject to peer influence than adults. Scott,

, 11 DEVELOPMENTAL REV. 1, 28-29 (1991).

supra at 304.

This is because social conformity influences them to adapt their

behavior and attitudes to those of their peers. Id.

Adolescents, furthermore, do not always have to be coerced in

order to be influenced by their peers. Id. Sometimes peer

influence presents itself in the form of the adolescent seeking

peer approval. Id

These psychological indicators of developmental immaturity

are explained in part by the physiological development of the

brain. Magnetic Resonance Imaging (MRI) technology has

permitted neuro-scientists to study the brain’s pruning

processes and revealed that brain development of adolescents is

not yet complete. “[B]rain systems responsible for logical

reasoning and basic information processing mature earlier than

. At the same time, younger adolescents, in

particular, continue to maintain strong parental affiliation and

are easily swayed by the opinion of a parent.

31

those that undergird more advanced executive functions and the

coordination of affect and cognition necessary for psychosocial

maturity.” Laurence Steinberg et al., Are Adolescents Less

Mature Than Adults? Minors’ Access to Abortion, the Juvenile

Death Penalty, and the Alleged APA “Flip-Flop,” 64 AM.

PSYCHOLOGIST 583 (2009). Advances in neurobiological research

further indicate that the parts of the brain that are

responsible for certain aspects of social and emotional

maturity, like planning for the future, impulse control and

weighing risks and rewards, continue to mature throughout

adolescence. See e.g., Eshel et al., Neural Substrates of

Choice Selection in Adults and Adolesents: Development of the

Ventrolteral Prefrontal and Anterior Cingulate Cortices

Neuroscientists also now recognize that each region of the

brain matures at a different rate, starting at the back and

moving towards the front. Brain development is not complete

until one’s mid-twenties, with the parts of the brain that are

required for abstract reasoning -- the frontal parietal, and

temporal lobes -- maturing last. Francine M. Benes,

, 45

NEUROPSYCHOLOGIA 1270-1271 (2007).

The

Development of Prefrontal Cortex: The Maturation of

Neurotransmitter Systems and Their Interactions, in HANDBOOK OF

COGNITIVE NEUROSCIENCE 79, 79-89 (Charles A. Nelson & Monica Luciana

eds., 2001). See also Abigail A. Baird and Jonathan A.

32

Fugelsand, The Emergence of Consequential Thought: Evidence from

Neuroscience

According to this extensive body of research,

therefore, adolescents do not and cannot think like adults.

Until their brains have fully developed, adolescents do not have

the same ability to make mature, measured decision as adults.

Thus, it is unreasonable to expect an adolescent’s ability to

process concepts, make decisions, or respond to stressful

situations to be the same or even similar to that of an adult.

, 359 PHIL. TRANSACTIONS ROYAL SOC’Y B: BIOLOGICAL SCIS.

1797, 1798 (2004).

B.

As a result of these factors, young people waive their

legal rights more frequently, and with greater haste, than their

adult counterparts. Specifically, “studies that have evaluated

juveniles’ comprehension of their

The Developmental Differences that Distinguish Adolescents from Adults Render Them More Likely to Waive Their Constitutional Rights and More Susceptible to Police Interrogation Tactics.

Miranda rights indicate that

most juveniles who receive a Miranda warning may not understand

it well enough to waive [the rights] in a ‘knowing and

intelligent’ manner.” Barry C. Feld, Waiver of Legal Rights, in

YOUTH ON TRIAL, 105, 112 (Thomas Grisso & Robert G. Schwartz eds.,

2000). For instance, a study of both adolescents and adults

asked whether participants could paraphrase the words in the

Miranda warnings; define the words “attorney,” “consult” and

33

“appoint”; and give correct true-false answers to re-wordings of

the Miranda warnings. See Thomas Grisso, Juveniles’ Capacities

to Waive Miranda Rights: An Empirical Analysis, 68 CAL. L. REV.

1134, 1143-47 (1980). Only 20.9 percent of the adolescents

demonstrated adequate understanding of the Miranda warnings.

Id. at 1153-54. Younger adolescents demonstrated greater

difficulties than their older counterparts in understanding

their rights. “As a class, juveniles younger than fifteen years

of age failed to meet both the absolute and relative (adult

norm) standards for comprehension.” Id

A similar study found that the adolescents who were unable

to comprehend their rights waived them more easily and readily.

“[I]t seems likely that many if not most of the juveniles who

are asked by the police to waive their rights do not have

sufficient understanding to be competent to waive them.” Rona

Abramovitch, et al.,

. at 1160.

Young Persons’ Comprehension of Waivers in

Criminal Proceedings, 35 CANADIAN JOURNAL OF CRIMINOLOGY 309, 319

(1993). Another study found that adolescents incorrectly

believed that the phrase “anything you say can and will be used

against you in a court of law” meant that “any disrespectful

words directed towards police would be reported to the judge.”

Ellen R. Fulmer, Novak v. Commonwealth: Are Virginia Courts

Providing a Special Protection to Virginia’s Juvenile

Defendants?, 30 U. RICH. L. REV. 935, 955 (1996). Because younger

34

adolescents, in particular, cannot comprehend the rights they

are waiving or evaluate the consequences of that waiver, those

waivers are rarely “knowing, voluntary, and intelligent,” and

are even less frequently so when a child does not have the

benefit of a parent, lawyer, or other protective adult in the

interrogation room.

In addition to not comprehending their rights, adolescents

are more vulnerable to the coercive pressures of police

interrogation. Feld, supra at 115. “Immaturity, inexperience,

and lower verbal competence than adults render youths especially

vulnerable to police interrogation tactics.” Id. Often during

police interrogations, adolescents succumb to the societal

expectation to obey authority. Id. Additionally,

“Inexperienced youths may waive their rights and speak to the

police in the short-sighted and unrealistic belief that their

interrogation will end more quickly and secure their release.”

Id. “When delinquent youth were asked to imagine any

consequences of waiving or asserting their rights to silence

when questioned by police, the consequence mentioned most

frequently was the immediate response of the police (‘If I talk,

they’ll let me go home tonight.’)”. Thomas Grisso, What We Know

About Youths’ Capacities as Trial Defendants in YOUTH ON TRIAL 139,

162 (Thomas Grisso & Robert G. Schwartz eds., 2000).

35

Youths are more vulnerable than adults to standard police

interrogation techniques, commonly referred to as the “Reid

Method.”17 The Reid Method exploits the “inherent coercion of

custodial interrogation” and relies on three situational aspects

of interrogations: (1) physical custody and isolation, in which

interrogations are conducted in the absence of social support

for protracted periods; (2) presentation of false or misleading

evidence to suspects about non-existent evidence against them;

and (3) minimization, or police-originated scenarios that serve

to minimize the severity of the crime and/or the suspect’s

culpability, making it easier to confess. Saul M. Kassin et

al., Police Induced Confessions: Risk Factors and

Recommendations, 34 LAW & HUM. BEHAV. 3, 6 (2006). Through these

processes, along with more subtle forms of psychological

manipulation, police are able to “overcome a suspect's

resistance to admitting responsibility and to neutralize a

suspect's feelings of guilt”. See Allison Redlich,

17 Deborah K. Cooper, Juveniles' Understanding of Trial-

Related Information: Are They Competent Defendants,

The

15 Behav. Sci. & L. 167, 178 (1997) (reporting that children “do not have an understanding of the legal process necessary for competence to stand trial”); Kassin & Gudjonsson, The Psychology of Confession Evidence: A Review, at 52 (noting that “[i]t is clear that juvenile suspects are highly vulnerable to false confessions, particularly when interrogated by police and other figures of authority”);Allison D. Redlich and Gail S. Goodman, Taking Responsibility for an Act Not Committed: The Influence of Age and Suggestability, 27 LAW & HUM. BEHAV. 141, 141 (2003), (reporting that juveniles are more likely than adults to accept responsibility when presented with false evidence).

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36

Susceptibility of Juveniles to False Confessions and False

Guilty Pleas, 62 RUTGERS L. REV. 943, 952 (2010). Police

interrogators use the “Reid Method” to influence, manipulate and

persuade a suspect to abandon his “resistance and denials” and

to increase his “desire to confess.” Id.

So too it was here. Detective Lopez testified below that

she received training in interrogation techniques, and her use

of those methods is evident in the transcript of A.W.’s

interrogation. These included the use of isolation, which she

achieved by excluding his father from the room; unsubstantiated

assertions that A.W.’s cousin, J, had implicated him, which fed

into the adolescent A.W.’s desire for peer approval; her efforts

to pit A.W. against his father, which played on the adolescent’s

need to break free of parental affiliation and control; and

minimization of the offense, evidenced by her assurances that

A.W. would not go to “jail.” The totality of the circumstances

clearly indicates that A.W.’s confession fell far from the

requisite standard of “knowing, voluntary, and intelligent.”

C.

For over 60 years, the United States Supreme Court has

acknowledged that adolescents require special legal protections

in the interrogation process. Beginning with

Courts long have held that, due to their developmental immaturity, youth require special protections during police interrogations.

Haley v. Ohio,

long before the emergence of the recent body of psychological

37

and brain development research, the Court emphasized that

adolescence is “a tender and difficult age . . .” making the

fifteen-year-old John Haley “an easy victim of the law.” Haley

v. Ohio

Haley, who was charged with murder, gave a confession after

the police interrogated him in isolation for several hours,

despite his mother’s and his attorney’s efforts to see him.

, 332 U.S. 596, 599 (1948).

Id.

at 598-99. The Court emphasized that it could not “believe that

a lad of tender years is a match for the police.” Id. at 599.

Instead, a young person “needs counsel and support if he is not

to become the victim first of fear, then of panic.” Id. at 600.

Thus, juveniles require the presence of an adult during police

interrogation to prevent the “overpowering presence of the law”

from “crushing [the juvenile.]” Id.

The Court reached a similar conclusion in

at 600.

Gallegos v.

Colorado, 370 U.S. 49 (1962). As in Haley, the fourteen-year

old juvenile in Gallegos confessed to a crime after a police

interrogation that took place outside of the presence of counsel

or the juvenile’s parents. Observing that “a 14-year-old boy,

no matter how sophisticated is unlikely to have any conception

of what will confront him when he is made accessible only to the

police,” Gallegos, 370 U.S. at 54, the Court found that

juveniles “[are] not equal to the police in knowledge and

understanding of the consequences of the questions and answers

38

being recorded and . . . [are] unable to know how to protest

[their] own interests or how to get the benefits of [their]

constitutional rights.” Id. at 54. See also In re Gault

Earlier this year, more than sixty years after

, 387

U.S. 1, 45-46 (1967)(“admissions and confessions of juveniles

require special caution” because adolescents are easily

overpowered by the legal process).

Haley, the

Supreme Court again carved out greater protections for youth

undergoing police interrogation. In J.D.B. v. North Carolina,

131 S. Ct. 2394 (2011), the question before the Court was

whether the juvenile was “in custody” for Miranda purposes when

he was interrogated by police as well as the vice principal of

his school without counsel or a parent present. Writing for the

Court, Justice Sotomayor acknowledged: “It is beyond dispute

that children will often feel bound to submit to police

questioning when an adult in the same circumstances would feel

free to leave.” J.D.B., 131 S. Ct. at 2398-99. Indeed, in

light of the differential developmental status of youth, a

“reasonable child subjected to police questioning will sometimes

feel pressured to submit when a reasonable adult would feel free

to go.” Id. at 2403. Juveniles thus are different from adults

not only in their response to police interrogation, but also in

39

their perception of whether they are free to leave the

interrogation room.18

This Court also has recognized that juveniles are more

likely than adults to be “overborne by police conduct” during

interrogations.

State v. Presha, 163 N.J. 304, 313 (2000). In

general, courts will determine that an adult defendant’s will

was overborne only upon a showing of “very substantial

psychological pressure.” State v Galloway

18 The Supreme Court has based its decisions in cases dealing

with juvenile sentencing on similar considerations and reasoning. See Eddings v. Oklahoma 455 U.S. 104, 115-16 (1978) (age and personal background of 16-year-old defendant must be considered as mitigating factors in death penalty case, given that ‘minors, especially in their earlier years, generally are less mature and responsible than adults”); Thompson v. Oklahoma, 487 U.S. 815, 835 (1988) (“less culpability should attach to a crime committed by a juvenile than to a comparable crime committed by an adult. . . . Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult.”); Roper v. Simmons, 543 U.S. 551 (2005)(death penalty violates Eighth Amendment when defendant was under 18 years of age at time of crime; juveniles have lesser culpability because “youth is a time and condition of life when a person may be most susceptible to influence and psychological damage.”); Graham v. Florida, 130 S. Ct. 2011 (2010)(sentence of life in prison without the possibility of parole for juvenile charged with non-homicide violates the Eighth Amendment)[juveniles “are more vulnerable or susceptible to negative influences and outside pressures” and “[d]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.” Id. at 2026 (quoting Roper at 570).

, 133 N.J. 654, 656

(1993). Factors typically considered in evaluating whether

40

police exerted this level of coercion include the suspect’s age,

intelligence, education, and prior encounters with the law, as

well as the conditions under which the questioning took place,

the length of the suspect's detention, and whether “physical

punishment or mental exhaustion was involved.” State ex rel.

A.S. .. , 203 N.J. at 146

As early as 1966, furthermore, this Court held that, due to

the unique vulnerability of youth to police interrogation

tactics, the “role of a parent in the context of a juvenile

interrogation takes on special significance.” In re Carlo, 48

N.J. 224, 225 (1966). In State in the Interest of S.H.

New Jersey’s particular emphasis on parental presence was

clarified and affirmed in

, 61 N.J.

108 (1972), the Court suppressed the confession of a 10-year-old

boy made when he was subjected to a 90 minute interrogation

outside the presence of his father, who was available but had

been sent home by police before questioning the boy, despite the

absence of facts in the record suggesting that the statement was

overtly coerced.

State v. Presha, 163 N.J. 304 (2000).

In Presha, the Court drew a distinction between youth under and

over the age of 14. Regardless of a young person’s age, “law

enforcement officers must use their best efforts to locate the

adult before beginning the interrogation and should account for

those efforts to the trial court's satisfaction.” Presha at 307.

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41

With regard to older adolescents, the Court held that “courts

should consider the absence of a parent or legal guardian from

the interrogation area as a highly significant fact when

determining whether the State has demonstrated that a juvenile's

waiver of rights was knowing, intelligent, and voluntary.”

Presha at 307. With regard to children younger than 14,

however, the Court created a “bright line” rule, deeming “the

young offender's statement inadmissible as a matter of law,

unless the parent or legal guardian is truly unavailable” or

unwilling to be present. Presha at 307. Finally, and “[a]s

important, when an adult is unavailable or declines to accompany

the juvenile, the police must conduct the interrogation with

‘the utmost fairness and in accordance with the highest

standards of due process and fundamental fairness.’” Id.,

quoting S.H. . , 61 N.J. at 115 See also State ex rel P.M.P., 200

N.J. 166, 176 (2009)(“a special circumstance exists when a

juvenile is under the age of fourteen,” making the presence of a

parent, legal guardian or counsel crucial to help the juvenile

understand the waiver of his or her rights.). Cf. State ex rel.

Q.N., 179 N.J. 165 (2004) (Mother's absence from interrogation

of juvenile under age fourteen fell within Presha

“unwillingness” exception, where the mother voluntarily left

only after the detective meticulously had administered the

Miranda warnings, observed the interrogation through a one-way

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42

window, and was told she could return to the interview at any

time).

Most recently, in State in re A.S., 203 N.J. 131, 148

(2010), the Court held that the mere presence of a parent during

the interrogation of a 14-year-old girl was not a sufficient

“buffer” against the police when the mother’s interests were

adverse to the daughter’s. Thus, A.S.’s waiver of her Miranda

rights was not knowing and voluntary, and her confession was

suppressed. The Court observed that the parent’s role in an

interrogation is not only that of advisor, but also to assist

juveniles in understanding their rights and in “remaining calm

in the face of an interrogation.” A.S., 203 N.J. at 148.

A.S. cautioned that the voluntariness of a confession

should be determined by the “totality of the circumstances” and

not by bright line rules. A.S., 203 N.J. at 146. The totality

of the circumstances in this case, however, all point toward the

unknowing and constructively involuntary nature of A.W.’s

confession: (1) the tender age of A.W., (2) the absence in the

critical stage of the interrogation of A.W.’s parent, who

(unlike the parents in Q.N. and A.S.) would have been a willing

and supportive presence for his son, (3) the interrogation

techniques used by Detective Lopez, to which A.S. was

particularly vulnerable, and (4) Miranda warnings given in

A.W.’s non-dominant language. Under such circumstances the

43

confession eventually given by A.W. could only have been the

product of circumstances that overburdened his free will.

III. BECAUSE A.W.’S FATHER WAS NEITHER “TRULY UNAVAILABLE” NOR “UNWILLING” TO BE PRESENT WITHIN THE MEANING OF STATE V. PRESHA

Under the “bright line” rule of

, HIS EXCLUSION FROM THE INTERROGATION COMPELS SUPPRESSION OF A.W.’S STATEMENT.

State v. Presha, 163 N.J.

304 (2000), the police may not interrogate a child younger than

14 outside the presence of a parent or guardian unless the

parent is truly unavailable or unwilling to be present. Id. at

315. It is the State’s burden to establish parental

unavailability or unwillingness. Id.

The vital role of the parent during interrogation of a

juvenile cannot be overestimated. “[T]he parent serves as

advisor to the juvenile, someone who can offer a measure of

support in the unfamiliar setting of the police station.”

at 316.

Id.

With the State's increased focus on the apprehension and prosecution of youthful offenders, the parent's role in an interrogation setting takes on new significance. When younger offenders are in custody, the parent serves as a buffer between the juvenile, who is entitled to certain protections, and the police, whose investigative function brings the officers necessarily in conflict with the juvenile's legal interests. Parents are in a position to assist juveniles in understanding their rights, acting intelligently in waiving those rights, and otherwise remaining calm in the face of an interrogation.

at 314. As this Court further noted:

Id. at 314-15. This Court therefore considers the role of

parents as a "highly significant factor" in the totality of the

44

circumstances analysis used to determine whether a juvenile's

confession was knowing, intelligent, and voluntary. Presha, 163

N.J. at 315. The Court explained that:

[b]y "highly significant factor" we mean that courts should give that factor added weight when balancing it against all other factors. By elevating the significance of the adult's role in the overall balance, we are satisfied that the rights of juveniles will be protected in a manner consistent with constitutional guarantees and modern realities.

Id.

A.

As a matter of law, the State has not satisfied that burden

in this case.

In reaching its ruling, the Appellate Division placed

dispositive weight on this Court’s 2004 decision in

A.W.’s Father Removal From the Interrogation Was Not the Result of a Knowing or Intelligent Waiver

State ex.

rel. Q.N., 179 N.J. 165 (2004). In Q.N., the 12 year old

juvenile suspect was asked to come to the local police

department for an interview regarding an allegation of sexual

assault, was accompanied by his mother, R.N. Q.N., 179 N.J. at

168-69. Before reading the Miranda warnings to Q.N., the

detective “cautioned R.N. to ‘please pay attention’ in the event

that she wanted to invoke her son’s constitutional rights.” Id.

at 169. The detective then read the Miranda rights to Q.N. and

his mother line by line in their dominant language, asking them

to initial each sentence. Id.

After administration of Miranda warnings, the detective began to interview Q.N. Although Q.N. would answer certain questions, such as where he lived or

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45

whether he knew the young girls involved, he would hesitate or begin to cry whenever the detective broached the precise subject of the alleged sexual assaults. According to the detective, Q.N.'s mother responded to her son's crying by stating to him in the officer's presence, "I know you did this. Please answer the officer's questions." Despite that admonition, Q.N. continued to look at his mother and cry whenever a question involved sex. The juvenile's mother again said to him, "I can tell by the way you're acting that you did this, answer the officer's questions." The detective asked Q.N. if he was embarrassed to talk about the subject of the investigation with his mother present. The juvenile answered "yes." The detective then "asked [Q.N.] if he was willing to discuss this with [him] if his mother wasn't present. He responded yes." The officer inquired of R.N. whether she would be willing to let her son speak with him privately and she responded, "Yes, I'll go have a smoke." At that juncture, according to the officer's testimony, the duration of the interrogation had been "less than five minutes." The detective indicated to R.N. that she could not leave to smoke but rather had to remain in the adjoining room so that she could monitor the interview through the one-way window. He explained to her that she would be able to "hear the interview and if she had any questions whatsoever or wanted to stop the interview all she had to do was tap on the glass." The detective positioned R.N. close to the glass and informed her that, to ensure that she could hear, he would speak slightly louder than normal and repeat any of Q.N.'s responses that were soft spoken. Q.N. was not shown Room Two, did not know that his mother would be monitoring the questions about to be continued in Room One, and was not told that his mother would be available to him after she left his immediate area.

Q.N., 179 N.J. at 169-170. As soon as his mother left, Q.N.

confessed to the allegations. Id. at 170. While in the other

room, R.N. never knocked on the door or tapped on the glass.

Id. Once she returned to the interview room, she told the

46

detective that she had heard all that was said in her absence.

Id.

The circumstances surrounding A.W.’s interrogation were

markedly different from that of

at 171.

Q.N., and the record makes clear

that what may have been a voluntary absence from the

interrogation room on the part of R.N. was anything but

voluntary for A.W.’s father. First, the Court found that R.N.

was in a position to, and actively did, assist her son during

the interview. Id. at 169. In addition, the Miranda warnings

were issued in the dominant language of both R.N. and her son,

and the detective specifically advised her to “‘please pay

attention’ in the event that she wanted to invoke her son’s

constitutional rights,” before reading the warnings. Id. R.N.

was specifically asked whether she agreed to leave the

interrogation room, and was given “careful explanations” of her

right to interrupt the interview when she was placed in a

separate room with a one-way window. Id. The detective also

instructed R.N. to listen to the interview and to tap on the

glass if she had any questions or wanted to stop the interview.

Id.

Due to the detective's careful explanations, R.N. knew of her right to be present with her son and knew that, if she left Room One as she eventually did, she could return at any time or could end the interview. When asked whether she wanted to absent herself knowing of those conditions, R.N. said yes, apparently without hesitation.

at 170. Thus:

47

Id.

A.W.’s father, however, did not receive the same “careful

explanations” of his rights that R.N. received. Detective Lopez

administered the Miranda warnings in a Spanish translation that

was fraught with inaccuracies and constitutionally infirm

language. A.W. only asked to speak to Detective Lopez privately

after she suggested to him several times that he might prefer to

do so and attempted to intimidate him by observing that his

father was a “big guy.” Ja22. She further used English, which

she knew the father did not speak, at strategic points to

convince A.W. to ask his father to leave. The father thus did

not have the benefit of understanding the entire conversation as

he weighed whether to leave the room or not, and was not asked

whether he agreed to leave voluntarily, but, instead, was told

that he “had to sign a form” that waived his right to be

present. Ja24.

at 174.

Immediately after this exchange, Detective Lopez directed

the father to sign a form waiving his right to be present during

the interrogation. Id. She told him that he must sign the form

in order for her to interrogate A.W. alone. Id. Detective

Lopez then read the form out loud to the father, interrupting

herself when she reached a point at which the father needed to

fill in a blanks on the form. Id. She did not pause between

sentences to ask the father if he understood what she was

48

reading to him. And, unlike R.N., A.W.’s father was never told

that he could, or should, view the interrogation from the next

room, thus denying A.W. even this minimal degree of parental

oversight and protection.

Most significantly, A.W.’s father twice voiced doubts about

leaving the room and, unlike R.N., did not immediately accede to

the suggestion that he leave. When Detective Lopez told him

that A.W. was going to tell her everything, but in private

without him being there, the father responded by asking “Y

porque no puede decir la (inaudible)” which is translated “And

why can’t he say (inaudible),” but was erroneously translated

“And because he can’t say.” Ja23-24. This suggests that A.W.’s

father did not wish to leave. Ja24. And, before he signed the

second waiver form, the father tried to ask another question:

“Pero el quiere hablar con usted, o...” / “Yes, but he wants to

talk to you or....” He was interrupted by A.W., who said “Si yo

quiero” / ”Yes I do.” Ja25. It is uncertain from the record if

Detective Lopez’s statement following this exchange, “Si pero yo

también no lo puedo forzar usted a (Inaudible).” / ”Yes, but I

also can’t force you to (Inaudible),” was directed at A.W. or

his father, but the result was that the father signed the form

and left. Ja25. These distinctions call into doubt the

Appellate Division’s conclusion that A.W.’s father’s departure

from the interrogation room was the akin to that of R.N. in Q.N.

49

Rather than being an “unwilling” participant in the

interrogation process, he gave every indication that he wished

to be there and was reluctant to leave.

As the Appellate Division has made clear, an interviewing

“officer‘s duty is to persuade the parent or guardian to attend

the interview.” In re O.F., 327 N.J. Super. 102, 117 (App. Div.

1999). Unlike the interrogating officer in Q.N., Detective

Lopez did not fulfill this duty. Rather, the transcript

suggests that, from the beginning, it was her goal to exclude

A.W.’s father from the interrogation room. She alienated the

father by speaking in English at key points during the

interview, never asked him privately if he wanted to remain in

the room, and made no attempt to encourage him to stay. After

A.W. told his father that he would tell him the details of his

private conversation later, Detective Lopez, without any

hesitation, took out the waiver form and declared to the father

that he must sign it because “I’m going to interview him alone.”

Ja24.

Presha, S.H., and A.S.

I know that you don’t want to walk out there and face your dad, um . . . but I think that if you start

contemplate and demand that parents

act as protectors of, and advocates for, their children during

police interrogations. Here, however, Detective Lopez arrogated

this role to herself, acting as the intermediary between A.W.

and his father:

50

telling me exactly what happened you are going to walk out of here feeling a lot better, even though you have to [inaudible] and don’t worry about your dad, I’ll talk to your dad, and explain everything.

Ja31. This completely reverses the fiduciary and legal

relationships required by Presha

In

.

Q.N., this Court stated that the police should not

suggest that an adult leave the interrogation room without the

adult raising the issue first, so as to “remove all doubt about

an adult’s willingness to be present.” Q.N., 179 N.J. at 174.

In order to assuage such doubt, Detective Lopez should not have

suggested to A.W. that he could speak with her alone, nor should

she have raised ominous suggestions regarding his father’s size.

She should have ensured that the entire interview was conducted

in both English and Spanish. She should have afforded A.W. and

his father an opportunity to speak privately outside of her

presence. Her failure to do any of these things casts

substantial doubt over the State’s assertion that A.W.’s father

voluntarily absented himself from the interrogation; as a

result, the statements that were the fruit of that interrogation

must be suppressed.19

19 It also is worth noting that, as soon he was allowed back in

the room, A.W.’s father inquired as to what happened during the private conversation between A.W. and Detective Lopez. Ja35. He asked this question in English, indicating his desire to be included in the conversation. Detective Lopez, in Spanish, told him the details of the statements A.W. made during the private conversation. Id. The father then asked follow up questions

51

B.

Even assuming,

Because Detective Lopez Failed To Use “Utmost Fairness” In Her Interrogation Of A.W., And In Light Of His Developmental Immaturity, A.W.’s Statement Was Not Knowingly, Intelligently, And Voluntarily Made, And Must Be Suppressed.

arguendo, that A.W.’s father was “unwilling”

to be present, Detective Lopez’s failure to use “utmost

fairness” in her interrogation of A.W. thereafter compels

suppression of his statement. Presha

Detective Lopez testified that she was trained in Reid

Method interrogation techniques. As a result, she was aware

that adolescents, who are easily influenced by the opinions and

actions of their peers, are particularly vulnerable to police

suggestions that they have been implicated by their friends or

co-defendants. Detective Lopez purposely lied to A.W. by

telling him that his cousins had already implicated him in the

, 163 N.J. at 316. Not

only did she employ coercive techniques to convince him to seek

his father’s exclusion from the room, but she exploited his

developmental immaturity and consequent vulnerability to those

techniques in eliciting his confession.

about whether Detective Lopez talked to J., A.W.’s cousin. Detective Lopez tried to end the interview without any acknowledgment of the father and it was not until he spoke up his concerns were addressed. His obvious interest in the outcome of the interrogation indicates that, but for Detective Lopez’s efforts to exclude him, he would have remained in the interrogation room.

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crime. Ja23. In doing so, she intended to force him to confirm

what he believed his cousins had already told the police.

As discussed above, younger adolescents continue to have

strong feelings of parental affiliation and are easily

influenced by their parents. Detective Lopez exploited this

characteristic by raising the specter of A.W.’s father’s anger

during the interrogation: “Just because your dad’s here and he’s

probably, um . . . he’s a big guy, but he is, he’s, he’s

worried about you.” Ja22. In fact, she mentioned the father’s

size several times during the course of the questioning. Ja19,

Ja22. Once she finally persuaded A.W. to ask to have his father

excluded from the room, she commended him: “I like the fact

that you finally realized that, you know what I feel more

comfortable with my dad out there.” Ja29.

Officers frequently accuse suspects of lying and appeal to

them to tell the truth. While this technique will not in and of

itself render an adult’s statement involuntary, if it employed

aggressively is not consistent with the “utmost fairness

standard,” particularly where, as here, the police were

questioning of a 13-year-old outside of his parent’s presence.

Detective Lopez made the following statements to A.W. to get him

to speak about the incidents, all of which occurred after his

father had left the room:

Detective Lopez: “I’m not going sit here and have you tell me something that’s not true, because you’re going to

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keep telling me that you didn’t do it, you didn’t do it, you didn’t touch her.” Ja26.

Detective Lopez: “I think you have to start being honest.” Ja26.

Detective Lopez: “I know that something else happened, you just got start searching a little bit deeper and you got to start telling me.” Ja30.

Detective Lopez: “Do the right thing for once, something else happened besides you asking her to pull her pants down. I know it already, I know it, I’m just waiting for you to tell me, I know already. I know what happened already. I know it.” Ja32.

Had these statements been made to an adult defendant, or to

a child who had the benefit of the parental “buffer” mandated by

Presha, they may have passed constitutional muster. Here,

however, when viewed in the context of Detective Lopez’s failure

to administer the Miranda warnings in English, of A.W.’s young

age and developmental immaturity, of the successful police

effort to exclude A.W.’s father from the room, and of the other

Reid techniques that the detective employed, they are

inconsistent with the “utmost fairness” standard.

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CONCLUSION

For the reasons stated herein, the adjudication of

delinquency below should be vacated, and the matter remanded for

further proceedings with the inculpatory statements suppressed.

December 5, 2011.

EDWARD BAROCAS JEANNE LOCICERO ALEXANDER SHALOM American Civil Liberties Union of New Jersey Foundation

PO Box 32159 Newark, NJ 07102 (973) 854-1714 Of Counsel and On the Brief

.

Respectfully submitted, RONALD K. CHEN Rutgers Constitutional Litigation Clinic

Center for Law & Justice 123 Washington St. Newark, NJ 07102 (973) 353-5378 LAURA COHEN Rutgers Urban Legal Clinic Center for Law & Justice 123 Washington St. Newark, NJ 07102 (973) 353-5378

Attorneys for Amicus Curiae American Civil Liberties Union of New Jersey

Counsel is grateful for the assistance of Michael Bittoni, Tannia Muñoz, and Awinna Martinez, students in the Rutgers Constitutional Litigation Clinic, and Samantha Mendenhall, a student in the Rutgers Urban Legal Clinic, for their assistance in the research and preparation of this brief.

N HE Supreme Court of New Jersey - ACLU-NJ · EDWARD BAROCAS. JEANNE LOCICERO. ALEXANDER SHALOM. American Civil Liberties Union of New Jersey Foundation . PO Box 32159 . …

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