by Karen L. Higgins-Biss
This study was conducted and submitted by Karen L. Higgins-Biss as an undergraduate thesis at the University of Toronto, April 22, 1991. Mrs. Higgins-Biss is an elementary school teacher employed by the Dufferin-Peel District Catholic School Board in Mississauga, Ontario. The same study was later published as "Young persons' comprehension of waivers in criminal proceedings", Canadian Journal of Criminology, July 1993.
See also: Abramovitch, R., Higgins-Biss, K., and Biss, S., Young persons' comprehension of waivers in criminal proceedings., Canadian Journal of Criminology, July 1993. 309-322.
Theoretical Framework and
Background Literature
Children in our society are directly affected by the law in numerous ways. Children's lives can be dramatically influenced by legal actions such as child protection proceedings, custody and access litigation, civil and criminal investigations and hearings where children are witnesses, or criminal proceedings against young persons.
In most cases lawyers interacting with children in a professional capacity have virtually no training or experience in dealing with young persons. They are unaware of the cognitive, emotional, and moral characteristics of the children they must interview, cross-examine, or represent. Psychologists can perform a valuable service for lawyers and other participants in the legal system by applying appropriate research methodology to the examination of the capabilities of children in particular legal contexts.
This study focuses on the Young_Offenders_Act of 1984 which was proclaimed in Canada in response to concerns regarding the rights of children. The Juvenile_Delinquents_Act of 1908 focused on treatment of delinquent youth and rehabilitation in order to prevent future misconduct. The Y.O.A. differs dramatically from the J.D.A. in that young persons are specifically afforded certain rights including the right to counsel and protections against self-incrimination. The Act clearly requires the application of procedural fairness from initial police contact and through the court process. It also encourages the notion of personal responsibility of the youth for the criminal act.
This study investigated children's capacity to understand and exercise their legal rights. The main concern of the study involves the competence of young persons to discharge waivers of their rights guaranteed under law. There is little empirical research concerned with this issue. A review of the relevant literature follows, beginning with discussion of the theoretical framework, and concluding with descriptions of three investigations into children's capacity to waive their legal rights.
Theoretical Framework and Background Literature
In Canada the law requires that young persons be heard in the course of and participate in the criminal law processes that lead to decisions that affect them. In order to do this meaningfully children must understand the issues involved and be able to make logical decisions. According to Piaget (Flavell, 1985), children are not able to analyze and evaluate situations logically until they have reached the stage of formal operations which begins around age 12 to 14. Prior to this stage children 's reasoning is concrete operational. They consider only immediate reality. By 12 to 14 years of age children engage in flexible thinking that allows them to consider implications beyond immediate circumstances.
In addition to the cognitive developmental theory of Piaget, the model of moral development advanced by Kohlberg (1971) is relevant to a consideration of children and their understanding of legal processes. Along with Piaget, Kohlberg believes that higher level moral reasoning is linked with formal operational thinking. Thinking in all aspects, including moral reasoning advances with age, becoming more integrated and differentiated. Kohlberg described the development of moral reasoning in terms of three levels each composed of two distinct stages. Only persons at the third level have the capacity to base decisions regarding their conduct on individual rights, and respect for human dignity. Kohlberg also explains that only once this level is attained can persons view their decisions as distinct from the expectations of others. This investigation focuses on children's capacity to understand and exercise or waive their rights in a criminal law context. Police and parents have their own expectations regarding young persons' choices of action in this situation.
Tapp and Kohlberg (1971) drew parallels between moral development and "legal development"(p.71) by linking Kohlberg's sequence regarding the development of moral thought to stages observed in children's notions of rules and laws. They concluded that any consideration of legal socialization must take into account the relationship between moral and legal reasoning, and the invariant sequence of development in both realms. They suggested that awareness of stages in moral reasoning can facilitate an understanding of children's orientation towards the law and its procedures (p.66). Initially children at Kohlberg's "preconventional" level of moral development focus on obedience and avoidance of punishment as the motivation for following rules and laws which are viewed as prohibitive. According to Tapp and Kohlberg this is the rule-obeying stage of legal development which corresponds to ages 4 to 10.
The second stage of legal development involves rule-maintaining. With increasing age children move to a "conventional" orientation toward moral decision-making which includes adherence to the laws and rules of society for the purpose of maintaining order. One behaves in accordance with societal standards to obtain personal approval and acceptance as a responsible participant. Rules and laws are seen as prescriptive.
The highest level of moral development is "post-conventional" which corresponds to Tapp and Kohlberg's rule-making or legislative stage of legal development. The focus is universal abstract principles independent of societal constraints. Rules and laws exist to benefit individuals who have basic human rights. They are obeyed with consideration given to rationality and social utility.
A study of legal development exploring children's ideas about laws and rules was conducted by Tapp, Hess, and Minturn (1970). When subjects were asked, "Why do you follow rules ?", their responses followed the pattern suggested by Tapp and Kohlberg. The results showed preschoolers as mostly preconventional, while middle school age children were preconventional or conventional. The majority of college students displayed moral reasoning at the conventional level. The results confirmed that Kohlberg's sequence of moral development can be applied to an analysis of legal development and that legal socialization occurs in ordered stages. Although these ideas provide a framework in which to consider the capacity of children to understand the concept of rights and the implications of waiving these rights in a criminal law context, this theory has not been linked to specific legal contexts.
The results of a large legal socialization study (Hess and Torney, 1967) lend support to the cognitive developmental model. This investigation, conducted in various regions in the United States, revealed a strong relationship between grade and views regarding the authority of police officers. Subjects were drawn from grades 3 through 8. Younger subjects considered police officers to be very influential and powerful in the area of law-making as well as enforcement. Young children transferred their impressions gleaned from school and home to the legal system. From their perspective, parents, teachers, and consequently police, both create and enforce rules. Older children did not view the police officer as positively, especially in relation to his or her ability to help and to make decisions.
Torney concluded that the results showed age-related "changes leading to less syncretic, more differentiated perspectives toward legal functions and authority figures, greater abstraction, and less idealistic views of the operation of the legal system." (Torney, 1971, p. 152) She emphasized the viability of the cognitive developmental model in understanding the process of legal socialization.
Demetriou and Charitides (1986) examined the ability of 120 adolescents drawn from grades 8, 10, and 12 to understand procedural justice. They administered a test battery to establish a clear delineation between subjects who were truly at a formal level of thought and those who were concrete operational. They also presented subjects with a questionnaire which included the transcript of an actual murder trial and questions related to the justice proceedings. Their findings suggest that comprehension of procedural law is attained only by persons capable of formal thought, and provide further support for the cognitive developmental perspective .
Melton (1982) investigated children's understanding of rights, and his results are also consistent with the cognitive developmental model. Along with Piaget and Kohlberg, Melton viewed the acquisition of concepts related to law and morality as developing in a sequence of stages that become increasingly complex and differentiated. In other words, development proceeds from a concrete or surface level to consideration of abstract or deep structure.
Melton proposed that development of the concept of rights occurs in three distinct stages or levels. He surveyed 90 children in grades 1, 3, 5 and 7. His results suggested that children at the first level considered rights to be favours granted or allowed by authority figures. Children at this level held an egocentric viewpoint and were unable to perceive a situation from another person's perspective. They knew only that they have favours bestowed on them by benevolent adult authorities who can withdraw these rights on whim. Children at Melton's second level related rights to role expectations that are generally accepted by society. Children at this level believed that basic fairness and obedience to rules are of prime importance in order for society to function as an organized system. Level three involved consideration of basic human rights and dignity as well as individual freedoms.
Melton found that the majority of children considered rights to be privileges granted by adults. He explained that this lack in understanding of the concept reflects immaturity in cognitive development and limited opportunities in the actual application of individual rights. Melton asserted that, since children seem to have these comprehension deficits, there should be significant changes in juvenile interrogation procedures.
Although there are theories related to children's legal understanding and moral reasoning, there is little empirical research focussing on children's understanding of specific legal issues. The few studies investigating children's legal knowledge reveal that children are not aware of the law. Rafkey and Sealey (1975) conducted a survey of more than 1,000 grade eleven students and discovered that legal knowledge was very limited. They found that only 5% of subjects classified themselves as "very" knowledgeable about the law. Saunders (1981) administered an Inventory of Legal Knowledge to high school students. The results showed that the average number of correct items was 50% with subjects being least knowledgeable about procedural law. Legal knowledge did increase with grade level. Saywitz (1989) also observed age trends in children's legal concepts.
It is apparent from the research cited that children's legal knowledge and understanding of judicial procedures and their implications are very limited in scope. This conclusion is applicable not only in the United States where most of the investigations were conducted but in Canada as well. Jaffe, Leschied, and Farthing (1987) presented 351 students in London, Ontario, with a questionnaire regarding various aspects of the Young_Offenders_Act. A total of 44 % of subjects claimed that television was their main source of knowledge regarding the Act. One in ten students declared that they knew virtually nothing about the Y.O.A.
The purpose of this study is to investigate children's capacity to understand and exercise their legal rights. The study focuses on the ability of young persons to participate in legal processes that can seriously impinge on their lives, particularly police investigation procedures. Specifically this study aims to determine the competence of young persons to discharge the waiver of certain rights guaranteed under law. Do children understand their rights to silence and to counsel in the context of standard police cautions? At what age are children capable of understanding the cautions and warnings the police read to them?
Under the Y.O.A. the rights of young persons include special rights in addition to those available to adults, such as the right to be advised that they have a right to consult with neutral support persons prior to and during interrogation. Any waiver of this right must be in writing and must include an indication that the young person has been apprised of the rights waived. The Act also provides that these rights be "clearly explained" by the law enforcement officer. Before discussing the empirical literature dealing specifically with waiver of juvenile rights, some legal issues respecting waivers of rights and subsequent confessions will be considered.
The effects of a waiver of rights and subsequent confession by a juvenile can be extensive. A prosecuting lawyer may base his or her case on the admission of guilt in that confession. Yet, due to immaturity and consequent lack of understanding of rights and their implications, juveniles may submit to the inherent expectations of even routine police interrogation procedures unknowingly and naively.
In the Horvath case, the Supreme Court of Canada decided that in order to be ruled voluntary, any confession (adult or young person) must emanate from a conscious mind and will, one which is aware:
"of what is at stake in making a statement to a person in authority."(Horvath_v._The_Queen, [1979] 2 S.C.R. 376 at 425)
In Korponay the Supreme Court of Canada stated that although an accused can always waive a privilege created in his favour, either procedural or fundamental,
"...the validity ... of any waiver, is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process."(Korponay_v._The_Queen, [1982] 1 S.C.R. 41 at 49 per Lamer J.)
"The factors he [the trial judge] will take into account in determining whether the accused has clearly and unequivocally made an informed decision to waive his rights will vary depending on the nature of the procedural requirement being waived and the importance of the right it was designed to protect."(at 49-50).
These principles were reaffirmed by the same Court in Clarkson as applied to the waiver of Charter rights:
"Given the concern for fair treatment of an accused person which underlies such constitutional civil liberties as the right to counsel in s. 10(b) of the Charter, it is evident that any alleged waiver of this right by an accused must be carefully considered and that the accused's awareness of the consequences of what he or she was saying is crucial."(Clarkson_v._The_Queen, [1986] 1 S.C.R. 383 at 394 per Wilson J.)
"... any voluntary waiver in order to be valid and effective must be premised on a true appreciation of the consequences of giving up the right."(at 396)
The Supreme Court of Canada has recently considered the special protections afforded young persons in section 56 of the Young_Offenders_Act:
"A young person is usually far more easily impressed and influenced by authoritarian figures. No matter what the bravado and braggadocio that young people may display, it is unlikely that they will appreciate their legal rights in a general sense or the consequences of oral statements made to persons in authority; certainly they would not appreciate the nature of their rights to the same extent as would most adults. Teenagers may also be more susceptible to subtle threats arising from their surroundings and the presence of persons in authority. A young person may be more inclined to make a statement, even though it is false, in order to please an authoritarian figure. It was no doubt in recognition of the additional pressures and problems faced by young people that led Parliament to enact this code of procedure."(Regina_v._J.T.J., (1990) 59 C.C.C. (3d) 1 at 25, per Cory J.)
Judges are frequently concerned whether police officers have clearly explained the requirements of section 56(2) of the Y.O.A. (see Appendix 6) in language appropriate to the age and understanding of the young person being arrested. It is often not considered sufficient for the police to merely read the text of waiver and statement forms and then have the young person sign them. Mr. Justice Hinkson of the British Columbia Court of Appeal has stated, "Parliament indicated the requirement that before the statement was made there must be a clear explanation to the young person. I am not persuaded that reading the contents of those two forms met the requirements imposed by Parliament before the statement could be taken from the young person".(Regina_v._M.A.M., (1986), 32 C.C.C. (3d) 566 at 571)
There are three studies that are particularly relevant to a consideration of these issues. Each of these investigations centered on the Miranda warnings. The Miranda warnings are cautions read to criminal suspects in the United States, and include warnings regarding the right to remain silent, the use of statements in court proceedings, the right to an attorney prior to and during interrogation, and the appointment of a public defender if the suspect cannot afford an attorney. (See Appendix 1.) The Canadian equivalent of these four Miranda elements can be found in the Charter_of_Rights, section 10(b), the Young_Offenders_Act, section 56(2), and the Brydges decision in the Supreme Court of Canada. Canadian warnings are not all identical, differing slightly from one police force to the next. Peel Regional Police cautions were utilized in this study.
The first study of juvenile waiver was conducted by Ferguson and Douglas (1970). The impetus for this study was a California Supreme Court recommendation that police officers be prepared to state the Miranda warnings to juvenile suspects in language relevant to young persons. Ferguson & Douglas tried to devise a simplified version of the Miranda cautions.
They included 90 juveniles, both delinquents and non-delinquents, between the ages of 13 and 17 in their sample. Subjects were not briefed prior to being interviewed by the researchers. The rationale for this deception was "to create the mentally distracting atmosphere of police field interrogation, and to assure accurate results...Upon contact with each juvenile, the interviewer attempted to create and to convey the impression he was investigating the juvenile's suspected involvement in crime"(Ferguson & Douglas, 1970, p.42). After the Miranda warnings were read and subjects provided a verbal waiver, they were questioned about their rights .
Ferguson & Douglas found that only 5 of 90 juveniles adequately understood the Miranda warnings. Only 4 subjects exercised their right to silence and refused to talk, and 3 of these were read the formal warning as opposed to the simplified version. Of the 4 basic Miranda elements, the right to remain silent and the right to an attorney were best understood. The issue of court use of statements was understood moderately well, while comprehension of the right to an attorney during questioning and the opportunity to obtain free legal counsel were least understood.
Generally the simplified warnings were less understood than the formal ones. Another finding was that delinquent juveniles understood the formal warnings better than non-delinquents with the exception of the right to an attorney during interrogation. The most consistent result was that subjects least understood the right to have an attorney present during the interview.
Ferguson & Douglas examined other factors potentially influencing a decision to waive constitutional rights. They asked the delinquent group if they had felt compelled to talk upon actual arrest. Although these subjects were generally aware of their right to remain silent, 29% of them "felt they had to talk to police when arrested." (Ferguson & Douglas, 1970, p. 51) In addition they found that 60% of the juveniles felt that it would go against them if they remained silent, while 74% thought that it would benefit them to talk. Apparently 55% were told by the arresting officer that willingness to talk would be held in their favour. The authors concluded that few young persons have the capability to waive their Miranda rights knowingly and intelligently. They suggested that the majority of juvenile suspects be counselled carefully if they are expected to sufficiently understand their rights and make a competent waiver.
Another factor of interest involves the attorney waiver. Within the group of delinquent subjects, 69% indicated that they had not asked for or wanted a lawyer to represent them for their court appearances. Their reasons for this position included: "I knew I was guilty and deserved to be punished" and "I was guilty and a lawyer couldn't do anything for me". They focused on moral guilt rather than legal guilt. Melton (1981) suggests that most juveniles do not view lawyers as advocates because they perceive the judicial system as inquisitorial rather than adversarial. They, therefore, do not realize the importance of the lawyer's role as defence counsel.
Grisso and Pomicter (1977) examined archival data in the form of court records for 491 juveniles, ranging in age from 6 to 17 years, charged with various felonies, over a three-year period. They discovered that over 90% of the juveniles studied chose to waive their rights to silence and to counsel. Only 6.5% of total felony referrals included a decision to remain silent. Almost all the juveniles who asserted their right to silence were 15 or 16 years old, and the rate of refusal increased with the number of prior offences. The researchers "speculate(d) that assertion of rights may be more likely in juvenile cases when circumstances (nature of offense, number of prior felony referrals) suggest to the juvenile the expectancy that 'conviction' is likely to lead to more serious penalties". (Grisso & Pomicter, 1977, p.337)
The results of the Grisso and Pomicter study revealed that interrogation of juveniles is normal procedure and that most young persons choose to waive their right to silence. Younger adolescents and those with less police contact were more willing to waive their constitutional rights. This finding is consistent with cognitive developmental theory which suggests that the reasoning abilities which allow for assessment of the situation and generation of possible alternative choices are not yet available until mid-adolescence.
The most comprehensive study was conducted by Grisso (1981). He was concerned not only with the procedures applied by law enforcement officers but also with "the cognitive and emotional characteristics of the juvenile which might suggest diminished ability to meaningfully decide to waive rights"(Grisso, 1981, p. 43). Grisso examined the ability of youth between the ages of 10 and 16 who had recently been brought into custody to understand the four Miranda warnings (See Appendix 1). Most of the subjects were interviewed at the St. Louis County Juvenile Court detention facility.
Grisso administered three tests of his own devising. The first was the Comprehension of Miranda Rights (CMR). Subjects were presented each of the four Miranda rights separately and asked to paraphrase each warning. The second measure was labeled the Comprehension of Miranda Vocabulary (CMV). Subjects were asked to define key words appearing in the Miranda warnings. This list included consult, attorney, entitled, appoint, interrogation, and right. The last test, which was called the Comprehension of Miranda Rights, True or False (CMR-T/F), involved the presentation of each of the Miranda warnings which was followed by a series of statements with meanings bearing some similarity to the particular Miranda warning. Subjects indicated whether each of the sentences was the same or different in meaning compared to the actual Miranda warning. The CMR-T/F included a total of 12 items with 3 T/F statements for each of the four Miranda rights. Each of the items in all three tests was presented both verbally and visually.
Basically, only 20% of the total sample obtained a perfect score on the CMR, indicating adequate understanding of the four warnings. The warning regarding use of statements in court was least understood. Forty-five per cent of the subjects revealed only partial comprehension of the right to consult with an attorney before and during interrogation. Most subjects had some understanding of the right to remain silent and the availability of free legal counsel.
As for the CMV, only 36% of the total sample indicated at least partial understanding of all the words. The words that were least understood were interrogation and consult, both of which appear in the Miranda warning that caused the greatest difficulty on the CMR measure ("You have the right to consult an attorney before interrogation.") Many subjects provided answers that reflected only partial understanding.
The CMR-T/F was developed to examine the effects, if any, produced by the substantial verbal component present in the CMR and CMV. Subjects were required to answer simply with yes or no, the same or different, for each of the 12 items. Grisso found that the results of the three measures were strongly associated.
There was an overall relationship between CMR scores and age. Generally CMR scores were higher for older subjects. However, CMR means were very similar for age groups after age 14. Fifteen and sixteen year olds exhibited a level of comprehension similar to adults. Grisso concluded that the majority of youth, especially those under 15 years of age, do not understand the meaning of the Miranda warnings, and their implications adequately enough to be able to knowingly and intelligently waive their rights. Most subjects misunderstood at least one warning.
The present study sought to assess the degree of understanding of Peel Police standard warnings as well as to investigate non-delinquent children's appreciation of the implications and importance of these rights under optimal conditions. Under the Y.O.A. police are required to inform young persons of specific rights including the right to consult with counsel, a parent, or another adult. Young persons, however, may waive this right. If they choose to do so the waiver must be in writing and must include a statement indicating that the youth has been informed of this right by the police officers in attendance. (See Appendix 6.)
This investigation is an attempt to analyze the issue of juvenile waiver in a Canadian context. The study includes a detailed examination of the types of responses young persons give when confronted with a request to waive their rights. Through the use of a structured interview, the protocol is designed to simulate unobtrusively and gently the circumstances involved in the arrest situation.
Subjects
The subjects for this study consisted of 113 young persons. Subjects were drawn from grades 6, 8, 10, and 12. There were 30 students from grade 6 with a mean age of 11.47 years (range 10.50 to 12.92 years). There were 35 students from grade 8 with a mean age of 13.48 years (range 12.83 to 14.33 years). There were 26 students from grade 10 with a mean age of 16.05 years (range 13.17 to 18.75 years). There were 22 students from grade 12 with a mean age of 18.32 years (range 16.58 to 20.92 years). There were approximately equal numbers of males and females in each grade. Subjects were obtained from the public and Roman Catholic school boards in Mississauga.
Parent information letters and consent forms (Appendix 2) were distributed by classroom or homeroom teachers. Students who returned completed consent forms were interviewed by the researchers. Interviews were conducted in the home schools in some private and quiet corner. The interviewers were two mature females.
After the study was described generally to the children and their verbal consent was obtained, they were asked to imagine that the police suspect them of shoplifting. They were randomly assigned to one of two conditions. Half of the children were asked to assume they were guilty of the crime, while the remainder were told they were innocent.
Students then heard all the cautions and warnings commonly read to juvenile suspects by Peel Regional Police officers in the process of a criminal investigation and arrest. These statements were presented in the language required by Peel Regional Police for use by police officers and in a typical sequence (Appendix 3). At this stage subjects simply listened to the cautions and warnings being read to them by the interviewer. They were then shown a waiver form (Appendix 4) that is used by Peel Regional Police and asked a series of structured questions (Appendix 5). The data being considered in this study focus on the responses to four specific questions. Responses were audiotaped and later transcribed verbatim.
The subjects were first asked to decide if, in the context of the hypothetical situation, they would sign the waiver form. Responses were coded simply as yes or no.
The subjects were then asked questions designed to provide three measures of understanding of the waiver form. After subjects made their initial decision, they were asked why they had chosen to sign or not to sign the waiver. They were also asked why another young person would make the opposite decision. Responses to these questions were evaluated in terms of understanding the "basic" meaning of the waiver form. The "basic" meaning is that if a young person signs the form this indicates a decision not to call an adult or have them present at the police station, and if a young person doesn't sign they choose to call an adult and ask them to come to the police station. It does not include an analysis of whether the subjects understood that in signing the waiver form a young person is waiving the right to consult with a lawyer and/or parent in private prior to interrogation and also waiving the right to have that person present and participating during interrogation. (See Sec.56(4) of the Y.O.A. in Appendix 6.)
Subjects who indicated that by signing this form you chose not to call anyone or have them present at the police station ("I'd sign it because I don't want anyone with me." Grade 6 female), or that by not signing you wanted to call and have someone with you ("I don't have any legal background to understand what my rights are so I would like to have a lawyer present before I sign anything." Grade 12 male) were rated as understanding the "basic" meaning of the form. Subjects who reversed the meaning ("I'm a kid and it wouldn't be easy for me to speak. The adults are like my insurance, so yes, I would sign it, because it's an opportunity to have someone at your side." Grade 10 male), or who gave a response that omitted any connection between signing/not signing and having an adult present at the police station ("If I know I wasn't guilty, I don't have to sign anything that I don't want to." Grade 10 female) were rated as not understanding the face value of the waiver form.
Subjects were also asked what would occur after a young person signed the waiver or refused to sign. The questions were "When someone signs this form what do you think will happen?" and "When someone doesn't sign this form what do you think will happen?". The responses were evaluated as to whether subjects mentioned that the police would question the young person about the alleged crime. Subjects who mentioned that interrogation or police questioning would occur ("The police would ask you questions." Grade 6 female) or that a statement would be taken ("After I sign this they'd probably take a statement and then I"d wait to go to court." Grade 10 female) in response to either query were rated as understanding that questioning would follow the waiver decision. Subjects who made no mention that questioning would follow , even if they stated that other events would occur ("They will go to jail for a day until someone bails them out." Grade 12 male), were scored as not understanding that questioning would follow the waiver decision.
The third measure of comprehension involved the question "What does the word waiver mean as it is used on this form?". The explanations provided by subjects fell into three categories. The first category included the most accurate type of response and involved answers that mentioned giving up or not using rights ( "Waiving the right or privilege you have. You can't have the right again." Grade 12 male, "You are giving up all your rights to call anybody." Grade 12 female). The second category of responses included a reference to a promise, proof, contract, consent, agreement, choice, or decision ("It's understanding that form...what it says. If I signed it I'd have to go by that order." Grade 8 male, "It's proof that you didn't want anybody there." Grade 8 female) The third category included the response "I don't know", and answers which indicated that the subject had no idea ("A copy of the real copy, or copy of the letter they give you." Grade 6 female).
Approximately 20% (N=23) of the interview protocols were coded by an independent rater to assess inter-rater reliability for the coding and scoring of each of these measures of understanding. These protocols were randomly selected by choosing every fifth interview. The percentage of agreement was .96 for the measure involving understanding of the waiver form as well as for understanding that questioning follows, and .83 for assessment of the waiver concept.
Data were analyzed using a non-parametric, qualitative approach. The chi-square test of significance was employed to determine any association between the variables.
Surprisingly, there was no association between grade and understanding the "basic" meaning of the waiver form. (X2(3)=4.309, p=.230). The data are presented in Table 1. A strong relationship was clearly evident between understanding or not understanding the meaning of the waiver form, and making a decision to sign or not to sign it (X2(1)=38.718, p<.001). These data are shown in Table 2. Subjects who comprehended the "basic" significance of the form tended to decide not to sign it, whereas subjects who chose to sign were more likely to not understand the "basic" meaning of the form. There was no association between gender and understanding, or guilty/not guilty and understanding.
|
Table 1. Number of Subjects who Understood or did not Understand the "Basic" Meaning of the Waiver |
|||||
|
|
Grade |
|
|||
|
|
6 |
8 |
10 |
12 |
Total |
|
Not Understand |
13 |
10 |
10 |
4 |
37 |
|
Understand |
17 |
25 |
16 |
18 |
76 |
|
Total |
30 |
35 |
26 |
22 |
113 |
|
X²(3)=4.309 p = .230 |
|
|
|||
|
Table 2. Number of Subjects who Understood the Waiver by Number of Subjects who Would Sign the Waiver |
|||
|
|
Not Sign |
Sign |
Total |
|
Not Understand |
13 |
24 |
37 |
|
Understand |
69 |
7 |
76 |
|
Total |
82 |
31 |
113 |
|
X²(1)=38.718 p < .001 |
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A marginal association was found between grade and awareness that police questioning of the suspect will follow as shown in Table 3 (X2(3)=7.698, p=.053). Over 77% of subjects in grade 12 mentioned that interrogation would occur, as compared to 58% in grade 10, 63% in grade 8, and 40% in grade 6. There were no effects for gender, guilty/not guilty, or signing/not signing the waiver form.
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Table 3. Number of Subjects Who Were Aware that Questioning Would Follow by Grade |
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Grade |
|||||
|
6 |
8 |
10 |
12 |
Total |
|
|
Questioning Next |
|||||
|
Not Aware |
18 |
13 |
11 |
5 |
47 |
|
Aware |
12 |
22 |
15 |
17 |
66 |
|
Total |
30 |
35 |
26 |
22 |
113 |
|
X²(3)=7.698 p = .053 |
|||||
A relationship between grade and understanding the concept of waiver was apparent (X2(6)=23.196, p<.001). As Table 4 shows, students in grade 12 exhibited the best comprehension of the concept of waiver, with 36% referring to giving up, or not using their rights. This type of response was given by 8% of the subjects in grade 10, by 9% in grade 8, and by none of the subjects in grade 6. There were no effects for gender, guilty/not guilty, or signing/not signing.
|
Table 4. Number of Subjects in each Category of Understanding Waiver by Grade |
|||||
Grade |
|||||
|
6 |
8 |
10 |
12 |
Total |
|
|
1. Giving Up Right |
0 |
3 |
2 |
8 |
13 |
|
2. Promise, Proof, Contract |
6 |
11 |
8 |
8 |
33 |
|
3. Don't Know, Other |
24 |
21 |
16 |
6 |
67 |
|
Total |
30 |
35 |
26 |
22 |
113 |
|
X²(6)=23.196 p < .001 |
|||||
There was an association between two of the measures of understanding as shown in Table 5. Subjects who were aware that questioning would occur were more likely to understand the concept of waiver ( X2(2)=11.634, p=.003). There was no relationship between understanding the meaning of the waiver form and awareness of impending interrogation (X2(1)=.025) or between understanding the waiver form and understanding the concept of waiver (X2(2)=.092).
|
Table 5. Number of Subjects Aware that Questioning Would Follow by Category of Understanding Waiver |
|||
|
|
Questioning Next |
||
|
|
Not Aware |
Aware |
Total |
|
1. Giving Up Right |
0 |
13 |
13 |
|
2. Promise, Proof, Contract |
13 |
20 |
33 |
|
3. Don't Know, Other |
34 |
33 |
67 |
|
Total |
47 |
66 |
113 |
|
X²(2)=11.634 p = .003 |
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The finding of no association between age and subjects' understanding of the waiver form appears to contradict Grisso's results (1981) and Piaget's theory of cognitive development (Flavell, 1985). It is important to note that the waiver form used by Peel Regional Police is limited in meaning. A young person signs the form if he or she does not want to call a parent, lawyer, or other adult or have that person present. The first measure of understanding used in this study simply tested whether or not the subjects understood this "basic" meaning. This "basic" meaning was not understood by 18% of subjects in grade 12, by 38% in grade 10, by 29% in grade 8, and by 43% in grade 6. A considerable proportion of subjects in each grade did not understand the waiver form, although it was presented to them under optimal circumstances, and they were not yet asked about the deeper meaning and consequences of a waiver of rights. Perhaps the lack of age effect is due to the inadequacy of the form itself.
Although the majority of subjects (61%) understood the form and chose not to sign it, a substantial proportion (21%) did not understand its significance and yet decided to sign it and waive their right to consult with a lawyer, parent, or other adult, before interrogation. More than one-third of the latter group actually reversed the meaning of the form ("I'd sign so I can have my parents there, so I could call a lawyer." Grade 6 male).
The subjects who did not understand and did not sign (11%) were evenly split between the guilty and not guilty conditions. However, over half of these subjects referred to guilt when explaining why they wouldn't sign. They assumed that a young person signed the waiver only if they were guilty ("I wouldn't sign it because I didn't do it." Grade 8 female). The remainder of these subjects gave a variety of reasons for their decision, most of which reflected confusion regarding the purpose of the waiver form ("I don't really understand the form." Grade 8 male).
Subjects who understood and signed the waiver represented the smallest percentage (6%) of the sample. Most of these students cited fear of adult authorities, especially parents, as their motivation for signing the form ("I wouldn't want anyone with me because I'd be afraid of what they say or do." Grade 10 female, "I don't want my parents to find out at that moment." Grade 8 female).
Only 27% of the total sample in the present study said they would sign, as compared to 90% obtained in the Grisso & Pomicter (1977) archival study, and 95% in the Ferguson & Douglas (1970) study. The subjects in the earlier investigations were convicted juvenile offenders. It is possible that the substantial difference in number of subjects who chose to waive their rights is simply due to differences between the delinquent and non-delinquent populations. Grisso & Pomicter's study reflects actual rates of waiver while the Ferguson & Douglas investigation was a simulation of a real interrogation.
The results of this present study provide some baseline data on what children are likely to do under optimal conditions when faced with choosing whether or not to have a parent or lawyer present during a police investigation. The method for this study was designed to minimize the stress experienced by subjects. Therefore, it was expected that their level of comprehension would be better than that of young persons in the actual emotionally-charged circumstances of arrest and interrogation.
However, Weithorn & Campbell (1982) warn that there may be substantial differences between the decisions reached and the cognitive processes used to make those choices when a subject is faced with a hypothetical dilemma as opposed to a stressful personal dilemma. The emotional state of an individual is an important factor in decision-making. As Grisso (1980) suggests "...while the research subjects were questioned under optimal circumstances, juveniles actually interrogated by the police would not be immune from comprehension inhibitions that stem from a pressure-packed setting". (Grisso, 1980, p. 1161.) Therefore, young persons under criminal investigation may be limited in their understanding by the stressful circumstances and, therefore, may be more likely to waive their rights.
The second measure of understanding in this study assessed subjects' awareness that police questioning will follow their decision to sign or not sign the waiver form. The Peel Regional Police waiver form does not contain a full description of the young persons' rights to silence, to counsel, and to consult with counsel and/or a parent prior to and during interrogation (s. 56(2) of the Y.O.A.). Unlike the third Miranda right, neither the Charter Right to Counsel caution, the Y.O.A. caution, nor the waiver form used by Peel Regional Police advise young persons of the right to consult, prior to, or during interrogation. It cannot be assumed that young persons will be made aware that questioning will follow through the reading of the Peel Police standard cautions. This measure of understanding evaluated subjects' awareness of impending interrogation even though neither questioning nor the giving of a statement is mentioned in the waiver form.
The results of this study showed that the majority of subjects were not aware that interrogation would occur after the decision to sign or not sign the waiver form. An age effect, although marginal, was evident. Only by grade 12 did the proportion of subjects within a grade who mentioned this procedure as an implication, outweigh the number who were not aware that police questioning would follow.
Grisso (1981) found that although the third Miranda warning specifically refers to the right to an attorney before and during interrogation only 45% of his subjects showed some understanding of this right. Of the four Miranda rights, it was least understood. Young persons need to be given careful and specific explanation in order to comprehend this right.
The third measure evaluated understanding of the word "waiver" as used in the context of this form. The form does not mention that the young person is giving up a right by signing. The last sentence states, "I do not want to call anyone or have anyone here with me now". In Canada, "...the validity...of any waiver, is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard...". (Korponay_v._The_Queen, [1982] 1 S.C.R. 41) This third measure was designed to assess whether young persons understood this concept although the form does not refer to the giving up of a right.
An age effect was apparent in the analysis of this measure. The proportion of grade 12 students who understood this concept was substantially higher than that for other grade levels. However, only 36% of grade 12 students gave an accurate description of waiver.
This finding is consistent with Kohlberg and Tapp (1971) who maintained that an understanding of individual rights is achieved only by a minority of individuals by the end of high school. According to Kohlberg's theory, few adults attain postconventional moral reasoning or a rule-making perspective. Young persons cannot therefore be expected to understand what their rights are and the meaning and consequences of waiving those rights without adult assistance. It is interesting to note that many students in grade 12 are adults in the legal sense and therefore not under the jurisdiction of the Y.O.A.
A waiver form should expressly state that signing constitutes giving up a right in order to be valid. It cannot be assumed that a young person will infer the full meaning of a waiver form. However, it is unlikely that a young person will fully appreciate the implications of giving up rights without having achieved postconventional moral reasoning.
The association between awareness of subsequent questioning and the concept of waiver confirmed the age trend for each of these measures. The lack of relationship between each of these two measures and understanding of the waiver form provided further evidence of the confusion caused by this form. Only 10 (8.85%) subjects obtained a positive score on all three measures. Included in this group were two grade 8 students, and eight grade 12 students. Only one chose to sign the waiver form.
Many researchers (Grisso, 1986; Melton, 1981; Saunders, 1981; Robin, 1982) point to the greater vulnerability of juveniles to inferred coercion. In both Canada and the U.S., Supreme Court judges have expressed concern regarding this particular vulnerability of young persons to the pressures inherent in police interrogation, including openness to suggestion. Some Supreme Court justices have ruled that a mere recitation of constitutional rights by police is insufficient and they question the capacity of young persons to knowingly and intelligently waive these rights without the advice of counsel.
Saunders (1981) suggests two possible reasons for the high proportion of waivers by juvenile suspects. Firstly, young persons are not cognizant of the importance of their civil liberties. Secondly, they may feel that the system is concerned only with their welfare. These beliefs create a tendency to readily submit to the requests of law enforcement officials, to conform to their expectations, and to be unconcerned about individual civil rights. Saunders explains that "...it could be argued that the teenager's ignorance of procedural safeguards may prompt them to acquiesce in the face of intimidation or paternalistic overtures by juvenile authorities." (Saunders, 1981. p. 724)
Robin (1982) in his discussion of juvenile interrogation and confessions cites several reasons for considering that juveniles are not capable of understanding their Miranda rights adequately to exercise a waiver of those rights taking into consideration the consequences of such action. He suggests that adolescents are easily swayed into waiving their constitutional rights and are therefore very vulnerable to coercion. He adds that:
"there are other factors which are particularly characteristic of juveniles which highlight the coercive aspects involved in juvenile waiver of Miranda rights; for example, their low status in relation to their adult interrogators , societal norms concerning youthful obedience to authority, children's greater dependence upon adults and their lower threshold of intimidation."(Robin, 1982, p. 225)
A police interrogation manual (Inbau and Reid, 1967) offers some complex psychological approaches to extracting information from suspects and emphasizes the heightened susceptibility of youth to intimidation. One particular notation refers to a temporary intention to reform experienced by most criminals during their career. The authors suggest that " this is particularly true with regard to youthful offenders...he becomes quite vulnerable to comments regarding the future consequences and futility of a continuation of his criminal behaviour". (Inbau & Reid, 1967, p. 77) The young persons in this study were not subjected to coercion or intimidation, and a considerable majority chose not to sign.
Authorities on juvenile waiver (Grisso, 1986; Kenney, Pursuit, Fuller & Barry, 1982; Melton, 1981; Grisso & Pomicter, 1977) contend that there should exist a "per se" rule which states that a waiver is invalid if a young person has not been counselled by a lawyer prior to a decision to waive his or her rights. A waiver would be judged invalid if this condition was not met, and, therefore, young persons would be unable to waive the right to counsel. The Institute of Judicial Administration/American Bar Association Joint Commission on Juvenile Justice Standards (Kenney, Pursuit, Fuller, & Barry, 1982, p.34) suggested that:
a) "Juveniles should receive the same safeguards available to adults in the criminal justice system. b) Greater constitutional safeguards are needed because of the vulnerability of juveniles. c) Juveniles should not be permitted to waive constitutional rights."
It seems essential that if a person is to make a decision related to his or her rights, then that person, regardless of age, needs to understand the issues. How can an individual avail him or herself of legal rights if he or she is not aware that they exist and understand their significance and the procedures involved in exercising or waiving those rights? As this study shows, such understanding would affect behaviour, for a high proportion of subjects who understood the waiver form chose not to sign it. This investigation also confirms Grisso's conclusion that young persons less than 15 years of age cannot competently waive their rights, and it extends that finding to include most 15 and 16 year olds.
The two findings that revealed an age trend are important results. It seems that persons are capable of exercising a waiver voluntarily, knowingly, and intelligently only by adulthood. Therefore, any person who is not yet an adult requires adult assistance from a neutral third party, in order to competently waive his or her rights. This aid will not be forthcoming if a young person, under the pressures inherent in a criminal investigation, chooses to waive the right to have an adult present. Hence, this right needs to be non-waiverable or alternatively, the provisions of the Y.O.A. respecting a high standard of explanation by police and proof of informed waiver need to be strictly applied by the Courts.
It is important to emphasize that there are many significant legal issues related to the rights of young persons under the Y.O.A. not being considered in this assessment of understanding of waiver. The primary focus of this study is comprehension of a form, limited in meaning, and basic comprehension of the significance and subsequent implications of a waiver of rights. This is presently the only investigation in Canada into the actual words or forms utilized to inform young persons of the rights available to them. Further investigation into these fundamental issues is not only warranted but imperative.
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