In re Jimmy D.

Chief Judge Lippman (dissenting).

The majority has set forth with commendable clarity what the law of this State requires when a parent of a child under the age of 16 is available for and wishes to be present at the child’s interrogation by a police officer: “the parent . . . has the right to attend the child’s interrogation . . . and should not be discouraged, directly or indirectly, from doing so” (majority op at 422). And, with equally commendable clarity, the majority has explained why such attendance is advantageous to the child and ultimately to the sound administration of justice: the parent can help the child understand the Miranda warnings and monitor any subsequent interrogation to deter and, if necessary, bear witness to any official overreaching. As the majority notes, we have previously recognized that juveniles “lack an adult’s knowledge of the probable cause of their acts or omissions and are least likely to understand the scope of their rights and how to protect their own interests” (People v Mitchell, 2 NY3d 272, 275 [2004]); and, in view of the acknowledged “emotional and intellectual immaturity of [juveniles],” the majority now appropriately reiterates that there is an “obvious need for the advice of a guardian ... at an interrogation from which charges of juvenile delinquency may ensue” (majority op at 422, quoting Matter of Michelet P., 70 AD2d 68, 71 [2d Dept 1979] [internal quotation marks omitted]).

It is not disputed that respondent Jimmy D.’s mother was available and wished to be present during her son’s interrogation, and it is clear that her exclusion was not in accord with what the Family Court Act requires in such circumstances. The majority, however, declines to suppress Jimmy’s confession on this ground. While I agree that the exclusion of a parent from the interrogation room should not invariably dictate the suppression of a subsequently obtained juvenile confession, I cannot agree that the exclusion of the parent in this case, when viewed in the context of the ensuing interrogation, should be deemed benign. Indeed, the tactic employed by the detective once the mother had been excluded cannot be viewed except as having vitiated the waiver of rights essential to the admissibility of Jimmy’s confession.

Although presented practically as an afterthought by the majority, it would appear crucial to the decision of the respondent’s suppression motion that, after the mother complied with the *426detective’s request to leave the room, the detective, upon encountering resistance from Jimmy, represented to him that he could be helped if he confessed. The detective testified: “I told him he needs to tell me exactly what happened and this way if he needed some help, we would try to get him some help.” When pressed as to what sort of “help” she had been referring to, the detective elaborated, “I explained to him that he would have to come to court and the lawyer that he would get [t]here would try to get him help.” When asked whether she meant that Jimmy could get help from a lawyer if he made a statement, the detective replied “[t]he help I was telling him was if the lawyer can help him out, get him some help. In other words, if he needed to see someone, you know, whether it was a psychologist or counseling with regards to what he had done.” Upon being requested to clarify whether she had suggested to Jimmy that if he confessed, he would get help from a lawyer in court, the detective said, “I told him to write what he did in his way, in his own words and I says maybe they can get you some help.” When she was again requested to state whether she had indicated that the availability of a lawyer depended upon Jimmy giving a confession, she answered “I’m not sure if I said lawyer. I could have said it. I’m not sure.” Shortly after these representations were made, Jimmy made an admission. He was then told that “he would have to write everything that he said he did on paper because it wasn’t right what he did.” Jimmy complied, delivering a written statement to the detective at 12:35 a.m. The 13 year old had by then not eaten, or been offered food, in over seven hours and had been without sleep since the early morning of the previous day.

The threshold issue in judging the admissibility of Jimmy’s custodial confession in this post-Miranda era is not, as it would have been before Miranda, whether under the totality of the circumstances the confession itself was voluntary in the sense of being uncoerced, or whether it was elicited by means of representations raising a substantial risk of false incrimination in contravention of Family Court Act § 344.2 (2) (b) (i), but whether the confession was obtained in pursuance of a valid waiver of rights. Since Miranda v Arizona (384 US 436 [1966]), of course, the admissibility of a custodial confession depends upon the government’s proof of an antecedent waiver of the right against self-incrimination and, relatedly, the right to the assistance of counsel during interrogation: “If the interrogation continues without the presence of an attorney and a statement *427is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel” (id. at 475). Consistent with, indeed practically entailed by, the Court’s requirement of proof of a knowing and intelligent waiver was its dictum that “any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege” (id. at 476).

Since Miranda, the nature of the judicial inquiry it requires, focusing on the validity of the precedent waiver rather than on the voluntariness of the ensuing confession, has been repeatedly reaffirmed. In Moran v Burbine (475 US 412, 421 [1986]), for example, the Court observed

“Echoing the standard first articulated in Johnson v. Zerbst, 304 U. S. 458, 464 (1938), Miranda holds that ‘[t]he defendant may waive effectuation’ of the rights conveyed in the warnings ‘provided the waiver is made voluntarily, knowingly and intelligently.’ 384 U. S., at 444, 475. The inquiry has two distinct dimensions. Edwards v. Arizona, supra, at 482; Brewer v. Williams, 430 U. S. 387, 404 (1977). 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. Fare v. Michael C., 442 U. S. 707, 725 (1979). See also North Carolina v. Butler, 441 U. S. 369, 374-375 (1979).”

Although the Miranda warnings initially given to Jimmy and his mother appear to have been adequate and the immediately ensuing waiver of rights valid, those circumstances are not on this record conclusive of the validity of the waiver when Jimmy’s confession was given. It is basic, and evident from the mandated warnings themselves, that a person subject to custodial interrogation may, his or her initial waiver *428notwithstanding, at any juncture in the questioning reassert his or her right to remain silent and to consult an attorney. It follows that any representation in the course of the interrogation tending to impair the interogee’s understanding of the consequences of his or her continuing waiver must be deemed to invalidate the waiver and render the product of consequent interrogation inadmissible, unless the representations are conclusively shown not to have clouded the interogee’s comprehension of the basic risks entailed by continued participation in the interrogation (see Moran v Burbine, supra; see e.g. United States v Anderson, 929 F2d 96 [2d Cir 1991]).

Although the majority finds this theory “novel,” it is as old as Miranda itself, which plainly conditions the validity of an interogee’s continuing waiver of rights upon the absence of “any evidence that the accused was threatened, tricked, or cajoled into [the] waiver” (384 US at 476 [emphasis supplied]). The majority’s evident insistence that subsequent to the initial waiver, the question of whether the waiver remains valid is supplanted by an inquiry into the voluntariness of any ensuing confession, is simply not compatible with the basic waiver theory upon which Miranda rests. As Professor Berger has observed:

“[W]aiver is [and] should remain an issue distinct from the question of compulsion under the fifth amendment. Miranda created a system of warnings and waiver to protect against the inherently coercive environment of custodial interrogation. Its predecessor, the voluntariness test, had proven to be ineffective in regulating police interrogation practices. The Miranda Court clearly did not intend to replace the voluntariness test under the fourteenth amendment with the compulsion standard of the fifth amendment, without any substantive change in the analysis. This would only have made voluntariness and compulsion the flip sides of the same coin. Voluntary confessions would be those obtained without compulsion, while compelled statements would be considered involuntary. Instead, Miranda rejected this rather meaningless exchange of constitutional language in favor of a substantive reworking of admissibility criteria . . . Under Miranda, waivers must be voluntary, intelligent and knowing, not just obtained in an atmosphere *429free of compulsion” (Berger, Compromise and Continuity: Miranda Waivers, Confession Admissibility, and the Retention of Interrogation Protections, 49 U Pitt L Rev 1007, 1053 [1988]).

Contrary to the majority’s view, the continuing validity of a Miranda waiver is not a nonissue after the waiver has first been made, even in the absence of the waiver’s retraction. Logically, every response made during a custodial interrogation is a reaffirmation of the original waiver (see Dix, Promises, Confessions, and Wayne LaFave’s Bright Line Rule Analysis, 1993 U 111 L Rev 207, 255-256 [“(A) suspect has the right after initially waiving counsel to change his mind and invoke the right. A suspect’s failure to do this during interrogation is a continuing reaffirmation of his earlier waiver. In a very real sense, a promise made after an initial waiver of counsel may effectively influence a suspect to ‘reaffirm’ that waiver by failing to demand the right to consult with an attorney before matters go further”]). If the terms of the waiver have by the time of the reaffirmation been misleadingly altered, as they were here, the waiver is no longer valid; the burden cannot be upon the misled interrogee to reassert rights the nature and dimensions of which have, since the initial waiver, been inaccurately or confusingly portrayed. Of course, nothing in either Moran or Anderson can be understood to impose such a manifestly unfair burden.

Here, it would appear clear, even from the detective’s less than transparent account of what she told Jimmy, that when she spoke to Jimmy alone, she made representations significantly at odds with those upon which his waiver had, in his mother’s presence, been permissibly based. The detective made repeated offers of “help,” but at the same time advised Jimmy that he would have to provide a written statement before “help” could be afforded. The child had been warned only minutes before that “[a]nything you say can and will be used against you in a Court of Law. That means what you say or write can be used to prove [w]hat you may have done.” Now, however, he was told something dramatically different—that an admission could be helpful to him and, indeed, that help was contingent upon an admission. When pressed as to what she meant by “help,” the detective indicated psychological counseling or legal assistance. But, neither was contingent upon a confession. Jimmy was absolutely entitled to an attorney; it was a gross distortion, again fundamentally at odds with the rights just recited, to intimate that legal assistance in any way depended *430upon the giving of a statement; and it is obvious, except perhaps to a child, that a confession to criminal wrongdoing is not a condition of access to psychological counseling.

Although courts, despite Miranda's apparently categorical injunction against threats, trickery and cajolement (384 US at 476), have held that misrepresentations not bearing directly upon the basis of the required waiver will not necessarily invalidate it,1 “there is an absolute prohibition upon any trickery which misleads the suspect as to the existence or dimensions of any of the applicable rights or as to whether the waiver really is a waiver of those rights” (2 LaFave et al., Criminal Procedure § 6.9 [c], at 827-828 [3d ed] [collected cases omitted]).2

Perhaps an experienced adult would not have been misled by representations such as those made by the detective to Jimmy3— but we deal here with a child, and to all appearances a very unsophisticated one with no prior involvement with the juvenile justice system, improperly deprived of parental support and guidance at a time when it would have been crucial to the protection of his interests. Upon the undisputed facts of this record, I see no way of concluding that the presentment agency met its “heavy” burden to demonstrate that Jimmy had “knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel” (Miranda, 384 US at 475) when he made his confession. The facts before us simply do not permit the properly dispositive legal conclusion that this child, at the time he confessed, had *431the “requisite level of comprehension” “both [of] the nature of the right being abandoned and the consequences of the decision to abandon it” (Moran, 475 US at 421).

While the truth or falsity of Jimmy’s confession appears unascertainable, it does seem clear that the circumstances attending its exaction—i.e., a tired and hungry child isolated with an experienced interrogator in the middle of the night and offered illusory inducements to confess to specifically described allegations of wrongdoing—are precisely the sort that do produce false confessions, particularly in the young teen age group.4 If an “incentive to lie” (majority op at 424) were necessary to explain a 13 year old’s decision to confess falsely, there certainly was one in this case; the child believed, as he had been encouraged to in his mother’s absence, that making the sought confession was the only way he could extricate himself from the extraordinarily aversive situation in which he found himself. Children do resort to falsehood to alleviate discomfort and satisfy the expectations of those in authority, and, in so doing, often neglect to consider the serious and lasting consequences of their election. There are developmental reasons for this behavior which we ignore at the peril of the truth-seeking process.

So long as juveniles cannot be altogether preserved from rigors of police interrogation, it would behoove us not to minimize the now well-documented potential for false confessions when suggestible and often impulsive and impaired children are ushered into the police interview room. Recognition of the distinct hazard presented by that inherently enormously coercive scenario renders it imperative not only that we clarify, as we have, what the Family Court Act requires with respect to parental involvement at juvenile interrogations, but that, where children are concerned, we scrupulously adhere to Miranda’s requirement that there be a demonstrably valid waiver of rights, unaffected by threats, trickery, or cajolement, to support the admission of a custodial confession.

*432Judges Graffeo, Read and Smith concur with Judge Pigott; Chief Judge Lippman dissents in a separate opinion in which Judges Ciparick and Jones concur.

Order affirmed, without costs.

. In Moran, for example, the misrepresentations alleged to vitiate the Miranda waiver were not made to the defendant and, thus, could not have affected his decision to relinquish his rights (475 US at 422).

. It is true that in United States v Anderson (supra), the court, although acknowledging that postwaiver trickery could affect the continuing validity of a waiver—the proposition for which the case is above cited—declined to adopt a per se rule that any trickery would vitiate a waiver, as had the District Court. However, upon de novo review, the Second Circuit went on to hold, as a matter of law, that the misrepresentations there at issue were materially misleading and thus that Anderson’s waiver had been fatally compromised, rendering his subsequently obtained statements involuntary. Although the holding is couched in terms of voluntariness, it is clear that the focus of the court’s analysis was upon whether the defendant’s waiver of rights had been voluntary under the standard enunciated in Miranda and Moran (see 929 F2d at 100-101).

. It is noted, however, that even highly experienced adults can be materially misled subsequent to an initial valid waiver. In Anderson, for example, the defendant had, by the time of the interrogation there at issue, been arrested 12 times and entered 11 guilty pleas (929 F2d at 99).

. Indeed, research has shown a pronounced willingness to confess falsely among young teenage boys and one study has documented false confession rates of 78% in boys respondent’s age (see Saul M. Kassin and Gisli H. Gudjonsson, The Psychology of Confessions: A Review of the Literature & Issues, 5 Psychol Sci in Pub Int 33, 52-53 [Nov. 2004]).