Academic journal article South Dakota Law Review

Childhood Trauma's Lurking Presence in the Juvenile Interrogation Room and the Need for a Trauma-Informed Voluntariness Test for Juvenile Confessions

Academic journal article South Dakota Law Review

Childhood Trauma's Lurking Presence in the Juvenile Interrogation Room and the Need for a Trauma-Informed Voluntariness Test for Juvenile Confessions

Article excerpt


Childhood trauma is increasingly recognized as an all-too-common part of the childhood experience in our country. (1) Recent scholarship has highlighted this tragic reality and begun the work of identifying the myriad ways that childhood trauma is relevant to youths' interactions with our criminal justice systems. On a parallel track, burgeoning social science and neuroscientific research make clear that the impact of childhood trauma is profound, tangible, and can endure into adulthood. Momentum is thus building for a research-based, trauma-informed approach to juveniles caught in the web of our juvenile and criminal justice systems.

While much has been written on how and why childhood trauma increases the likelihood that a youth will end up involved with the criminal justice system--and some has been written on how traumatized youth should be treated once their case is adjudicated and they are sentenced--comparably little has been said about how prior trauma actually impacts a youth's interactions with the players of the criminal justice system and the likely outcomes. This article will focus narrowly on one aspect of a youth's early interactions with the criminal justice system during a critical phase that is often outcome-determinative: the police interrogation.

It is now widely recognized that modern police interrogation is an inherently psychologically coercive process that can, and all too often does, result in coerced and false confessions from innocent people. In the wake of Netflix's Making a Murderer, the public is also now keenly aware that youth are more vulnerable in the interrogation room and at greater risk for involuntarily and falsely confessing to crimes that they did not commit--even very serious, horrific crimes. (2) Consider Brendan Dassey, the sixteen-year-old subject of Making a Murderer, who confessed in graphic detail to the rape and murder of a twenty-five-year-old woman, but whose conviction was vacated last year by a federal judge (3) in a decision affirmed by the Seventh Circuit Court of Appeals. (4) The Seventh Circuit concluded that Brendan's confession was coerced by two police interrogators who promised him leniency and fed him details of the crime. (5) Also consider Robert Davis, who falsely confessed at the age of eighteen to killing a mother and her child and then burning down their house to cover up the crime, after police lied that his DNA placed him at the scene and threatened him with the death penalty. (6) Robert was finally pardoned by the governor of Virginia and released from prison in 2015 after thirteen years of wrongful incarceration, and fully exonerated in 2016. (7) Sadly, Brendan and Robert are not anomalies; their stories are all too common.

With this backdrop in mind, what has yet to be adequately researched or addressed by the courts is the interplay of trauma and youth in the interrogation room. While some social science research has been conducted, it has been geographically limited, conducted by a single research team in a foreign setting. (8) This research relied on self-reporting by the subjects and focused on psychological theories, without addressing the ways in which trauma physically changes the brain of a child. (9) While not specifically focused on the interrogation setting, there is now ample neuroscientific evidence establishing that childhood trauma alters the developing brain of a youth in significant ways. We know that youth are already inherently vulnerable in the interrogation room; this article posits that a childhood history of abuse, neglect and/or trauma puts youth at an even greater risk of making an involuntary and/or false confession when interrogated by police.

The rapidly evolving field of neuroscience has shown that youth are categorically less culpable and more capable of rehabilitation than adults. (10) Principles now recognized by the United States Supreme Court, (11) as well as research on the brains of adolescents and young adults, prove that youth are different in ways that are critically--and constitutionally--relevant to how they respond in an interrogation setting. …

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