(specially concurring).
{14} I concur in the result and most of the analysis therein and write separately in this special concurrence to emphasize what I believe is a key difference between sections E & F of § 32A-2-14.
{15} In Francesca L., we recognized that Subsection 32A-2-14(F) is not a mere restatement of the minimum constitutional requirements for the admission of a child’s confession. We held that Subsection 32A-2-14(F) gives “heightened protection” to thirteen-and fourteen-year olds. Francesca L., 2000-NMCA-019, ¶ 12, 128 N.M. 673, 997 P.2d 147. We did not describe the nature of this heightened protection nor did we explain the nature of the showing the State must make to rebut the presumption of inadmissibility.
{16} Significantly, the Legislature did not expressly limit Subsection 32A-2-14(F) to statements to law enforcement personnel or other individuals gathering information on behalf of the State. Athough law enforcement officials clearly can be persons in a position of authority, the phrase “person in a position of authority” is broad enough to include, for example, parents, other adult relatives, employers, private security guards or teachers. Cf. NMSA 1978, § 30-9-10(E)(1975, as amended through 1979) (defining “position of authority” in context of sexual offenses against children).
{17} Because I am convinced that Subsection 32A-2-14(F) applies both to state actors and private persons, I consider it unhelpful to emphasize rights/waiver terminology in describing the showing required to overcome Subsection 32A-2-14(F)’s rebuttable presumption of inadmissibility. The majority opinion states that the test for admissibility under Subsection 32A-2-14(F) is “[whether] the thirteen- or fourteen-year-old child had the ability to waive the child’s rights in a knowing, intelligent, and voluntary manner.” Opinion at ¶7. Use of this standard, which governs the waiver of constitutional rights, undercuts the effort begun in Francesca L. to distinguish Subsections 32A-2-14(C) through (E), which codify standards for determining the validity of a waiver of constitutional rights, from Subsection 32A-2-14(F), which applies to statements to any adult in a position of authority, regardless of whether the adult is acting on behalf of the State. See 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 6.10(b) (1984) (observing that “[b]ecause ... state action is a prerequisite to application of constitutional protections, it is clear that Miranda does not govern interrogation by private citizens acting on their own”); Rutledge v. State, 651 So.2d 1141, 1144 (Aa.Crim.App.1994) (upholding confession extracted by conduct of child’s mother in striking child “up side the head” on grounds that physical abuse was inflicted by parent, not police). Athough the present case involves statements to law enforcement officers, Subsection 32A-2-14(F) is not limited to state actors. By way of example, Subsection 32A-2-14(F) would govern the admissibility of a confession made to a child’s parents-a situation where rights/waiver terminology is inapplicable. Our goal should be to craft a standard for rebutting the presumption of inadmissibility that can be applied uniformly both to state actors and to private actors.
{18} As our Supreme Court itself has noted,
It is a matter of common knowledge that the stage at which physical and mental maturity is reached varies with the individual and is dependent on many factors. It cannot be determined with mathematical accuracy, but it is universally recognized that it is not reached at the age of thirteen. Until a minor has reached the stage or maturity of showing him to be capable of using the judgment of a reasonably prudent adult, his conduct is not to be measured by the same standard as that of a matured person.
Thompson v. Anderman, 59 N.M. 400, 414, 285 P.2d 507, 515-16 (1955).
{19} Our Supreme Court’s observation about “common knowledge” is supported by recent research concluding that “juveniles aged 15 and younger are significantly more likely than older adolescents and young adults to be impaired in ways that compromise their ability to serve as competent defendants in a criminal proceeding.” Thomas Grisso et al., Juveniles’ Competence to Stand Trial: A Comparison of Adolescents’ and Adults’ Capacities as Trial Defendants at 29 (publication forthcoming in Law and Hum. Behav.; currently available online at www. mac-adoldev-juvjustice.org).
{20} Subsection 32A-2-14(F) proceeds on two assumptions: first that children fifteen years or older are closer to adults in their intellectual and emotional development; and second, that thirteen- and fourteen-yearsolds are closer to young children in their intellectual and emotional development. Consequently, thirteen-and fourteen-yearolds as a class are presumed to be less capable of understanding and protecting their legal interests than are older children and adults. As a consequence of their immaturity, younger children necessarily rely on adults for assistance and advice on legal matters. Because statements to most adults are not otherwise privileged, see Rules 11-501 through 11-509 NMRA 2003, without the heightened protection Subsection 32A-2-14(F) affords younger children, the very act of confiding in a parent of or consulting a non-lawyer adult for advice could result in a de facto waiver of the child’s privilege against self-incrimination, see Rule 11-511 NMRA 2003.
{21} The ultimate goal of Subsection 32A-2-14(F) is to “encourage} ] children to freely converse with adults without fear that their statements will be used against them at a later date.” State v. Jonathan M., 109 N.M. 789, 791, 791 P.2d 64, 66 (1990). This goal should inform our analysis of what the State must demonstrate to overcome the presumption of inadmissibility. I would hold that to overcome the rebuttable presumption of inadmissibility created by Subsection 32A-2-14(F), the State must demonstrate that under the totality of the circumstances, including the particular child’s intelligence, emotional maturity, experience, knowledge, and legal sophistication (1) the child had an appreciation of the potential adverse legal consequences of the statement corresponding to that of a “reasonably prudent adult” and (2) the statement was not the product of undue influence exercised by the person in the position of authority.
{22} I agree with Child that the State was put on notice by our decision in Francesca L. — decided well prior to the hearing in this case-that a child’s maturity and intelligence were factors to be considered in determining whether the State had rebutted Subsection 32A-2-14(F)’s presumption of inadmissibility. In view of the trial court’s finding that Child “is not more intelligent and mature than the average thirteen or fourteen-year-old,” the trial court did not abuse its discretion in concluding that the State failed to rebut the presumption of inadmissibility.