I am currently in the process of preparing this year’s syllabus for the companion course that I teach with the Juvenile Justice Clinic entitled, “The Criminal Lawyering Process.” It is designed to introduce clinic students to North Carolina juvenile court practice and procedure as well as to the issues commonly confronted by juvenile defenders.
One of the most difficult concepts for students (and many lawyers) to grasp is that of the role of the juvenile defender, as we are bound to represent what the client herself articulates as her goals and preferences, rather than being guided by our own view of what is in the youth’s “best interests.” A related concept that students often find challenging is the limited role of the child’s parents during the course of representation; it is the client and not her parents who ultimately makes the critical decisions in the case, including whether to admit or have an adjudicatory hearing and whether or not to testify. Parents of juveniles sometimes balk at this ethical rule, as they are accustomed to serving as the ultimate decision-maker for their son or daughter in nearly every other setting.
The question of the proper impact and role of the parent arises most often in the context of the interrogation of juveniles. A few states (including Colorado, Connecticut, and North Carolina) require a parent or guardian to be present during the custodial questioning of a youth by law enforcement (the specifics depend on the statute); in states where this is not the law, advocates have pushed for such an amendment under the assumption that a parent will adequately protect a youth from the intimidation and trickery that may be utilized by the police.
Yet, those of us who have represented juveniles know that when parents are present during interrogation, they can often hurt the defense case. Parents may inadvertently give their children incorrect legal advice. They, themselves, can fall under the sway and pressure of the officer conducting the questioning. Or parents may themselves pressure their child to admit to wrongdoing, believing it is the “right thing to do” from a moral and values-based perspective but without appreciating the legal consequences.
Over the years, I have spoken with parents whose children have been questioned by an unrelated adult regarding an alleged act of wrongdoing. In some cases, the other adult is a police officer or school resource officer. In others it is not a law enforcement officer but a merchant or neighbor, and the “case” is not likely to be referred to delinquency court. Even so, there can be potentially significant consequences if the child admits to the conduct, from school suspension to removal from an organization or program.
Parents have asked me what I would do in these situations. Would I — a veteran criminal defense attorney — forbid my child from “cooperating” with an investigation? Would I insist that the matter be handled within the private realm of the family, rather than the public realm? Or would I participate in the questioning and take steps to convince my child to “come clean” and tell the truth about what happened.
There are no easy answers here, as a lot depends on the specific interests at stake and the potential consequences. Yet I have found — whether the matter is serious or relatively minor — that parents do not typically represent their child’s “expressed interest,” which is to avoid questioning, go home, and not have to deal with the results of their bad decisions. Instead, we tend to act as parents do — wanting our children to take responsibility for what they have done, wanting them to understand that their actions have consequences, wanting them to apologize to those who have been negatively impacted. In other words, parents tend to act based on our view of what is in the child’s “best interest.”
The bottom line is that there are almost always potential downsides of parental presence during juvenile interrogation, and most parents should not be expected to serve as defense counsel for our own children — whether at the police station or in the principal’s office. When the consequences of a confession are potentially serious — or if they are unclear or unknown — a juvenile needs an objective, disinterested adult (a criminal lawyer, if possible) to offer advise and counsel. Not a mom or dad.
The post above is reprinted with permission from the Juvenile Justice Blog.
Tamar Birckhead is an associate professor of law at the University of North Carolina at Chapel Hill where she teaches the Juvenile Justice Clinic, the Criminal Lawyering Process, and Juvenile Courts and Delinquency. Her research interests focus on issues related to juvenile justice policy and reform, criminal law and procedure, indigent criminal defense, and the criminalization of poverty. Prior to joining the UNC School fo Law faculty in 2004, Birckhead practiced for ten years as a public defender in Boston, Massachusetts. She received her B.A. in English Literature from Yale University and a J.D. with honors from Harvard Law School.