Waving Good-Bye to Waiver: A Developmental Argument Against Youths’ Waiver of Miranda Rights

“In this article, we address the question left unanswered by the Court in J.D.B.: In light of the substantial research establishing that children’s understanding and appreciation of the Miranda warnings are quite limited, must the traditional test for assessing the validity of an individual’s waiver of their Miranda rights be re-calibrated to take into account the developmental attributes of youth? Under the prevailing standard, a valid waiver must be both “voluntary” (i.e., the result of free choice) and “knowing and intelligent” (i.e., made with full awareness of the nature of the right being abandoned and the consequences of its abandonment).34 As with other criminal laws, policies, and practices, what constitutes “voluntary” or “knowing and intelligent” for a child may not be the same as it is for an adult. It is not enough to ask only about the specific pre-conditions of the interrogation that trigger Miranda’s prophylactic rule for children; we must also consider whether the traditional test of a valid rights waiver adequately protects the rights of children against self-incrimination.”