Psychological and Legal Evaluation of a "Totality" Versus "Per Se" Approach to Juvenile Offenders

Kelsey Ball
University of Virginia


As a culturally accepted rule, juveniles are treated differently from adults and are often denied the executive right to make important, life-changing decisions. Due to a presumed lack of experience, maturity, and intellectual capacity, parents and other officials often limit juveniles' rights to make decisions in an effort to avoid potential social consequences and/or negative repercussions to the adolescent. The presumption that adolescents cannot make sound decisions on their own is supported by various neuro-psychological studies illustrating developmental differences between adolescent and adult brains. These differences are particularly salient in the frontal cortex that is shown to moderate executive functions, such as inhibiting inappropriate behaviors (Begley, 2000). Because of the differences in brain development and cognitive maturity, adolescent decision-making on important issues such as health care, education, and custody is often facilitated by a parent or guardian. All the more, with life-changing decisions relating to criminal offenses, one would expect the implementation of similar precautionary measures with regard to adolescent decision-making; however, this is not the case. Numerous legal cases in the past show the unfortunate outcomes of unassisted juvenile decision-making in police interrogations, highlighting the prevalence of a "totality of circumstances" approach which gives courts complete discretion in determining whether or not a juvenile voluntarily waived their Miranda rights.

 In this paper, the underlying issues of the "totality" approach will be addressed from both a psychological and legal perspective. In addition, the application of a "per se" approach, based on the adolescent's fundamental right to counsel with an interested adult before participating in legal investigations, will be explored and evaluated based on psychological research and legal precedence. Finally, the potential importance of individualized justice will be discussed as a practical alternative for cases involving juvenile offenders. 

Psychological research regarding "totality" vs. "per se" approaches

Psychological research regarding juveniles' maturity and overall competence to defend themselves and invoke their Miranda rights is prevalent among psychologists interested in informing the legal system. These notions of maturity and competence are a constant source of contention among scholars within the psychological and legal fields due to the fact that there is no single definition of competence that psychologists and law enforcement agencies can agree upon. Although, to the layperson, competence may reflect a general ability and capacity to carry out a certain action, psychologists are often inclined to incorporate psychobiological and cognitive explanations, satisfying a more empirical approach. The various studies conducted over the past decades illustrate psychologists' persistent desire to understand the idea of juvenile competence in the hopes of informing the legal system and improving the methods used in dealing with juvenile offenders.

Many psychologists feel that adolescents are fundamentally different from adults in specific ways, such as in brain development and overall maturity; thus, they should not be treated as adults when dealing with legal matters such as waiving of Miranda rights and representing themselves, without the aid of an interested adult, in court. Previously, legal sanctions and a significantly more lenient approach were given only to the mentally challenged or mentally ill, due to an understanding that these individuals were not competent to partake in their own legal affairs. However, given recent studies that demonstrate adolescents' reduced intellectual and emotional maturity compared to adults (Redding & Frost, 2002), questions regarding the competence of young juvenile offenders are now being brought to light.

Scientific discovery of adolescent brain maturity has only recently shown the obvious developmental changes occurring between adolescence and adulthood. Previously, it was believed that the adolescent's brain was fully developed by the age of 13, and that personality and behavioral traits were set at this young age. This theory has been disproved in the wake of scientific studies illustrating the significant neurological development affecting self-control, judgment, emotion, and organization that occurs throughout the teen years and into the early 20s (Begley, 2000). This serves as substantial proof of the importance of adult involvement in adolescent decision-making and highlights the importance of a "per se" approach to cases involving juvenile offenders. In addition to the clear neurological changes between adolescence and adulthood, previous research by Yurgelun-Todd (2002) pointed to a clear difference in adolescents' and adults' abilities to read emotions and facial expressions of others. Recent FMRI (functional magnetic resonance imaging) studies showed significantly reduced levels of activity in the frontal lobes of juveniles when viewing faces of others. The frontal cortex is often associated with emotion, judgment, and rational thinking; thus this finding may illustrate adolescent's tendency to misinterpret facial expressions and emotions and may account for juveniles' lack of insight and reasoning power when dealing with others.

These findings are particularly pertinent in reference to adopting a "per se" approach to juvenile offenders in police custody. Given that adolescents commonly misinterpret emotions and facial expressions in lab settings (Yurgelun-Todd, 2002), it seems likely that under stressful conditions such as police interrogations these juvenile's would have a similar, if not increased, level of error in reading emotions. This may explain why juveniles are more easily persuaded by police and interrogators; instead of seeing the police as adversaries trying to prosecute them, adolescents may, instead, perceive the police as friends or associates, thereby misunderstanding the interrogators' actions. Studies show that adolescents are three times more likely than adults to believe police are friendly during an interrogation (Grisso et al., 2003). This signifies juveniles' lack of insight and understanding of the emotions of officials in these legal proceedings, as well as a misinterpretation of their roles in the setting of an interrogation. Furthermore, police may present false evidence in order to pressure juveniles into confessing, and adolescents commonly view this "evidence" as fact and do not consider the possibility that the police are just seeking to make a case against them (Hurst & Frank, 2000). These misunderstandings often result in juveniles volunteering information and details that can be, and often are, used against them in court by police interrogators looking to convict them. 

In the current use of the "totality of circumstances" approach, courts have complete discretion to determine whether or not a juvenile waived their Miranda rights knowingly, voluntarily, and competently during interrogation. This process is entirely subjective, relying only on the opinions of the court and judge to evaluate the circumstances under which the rights were waived and often disregarding the developmental and psychological factors affecting the juvenile in question. The application of a "per se" approach (which relies on specific exclusionary principles, rather than subjective opinion) to legal proceedings seems not only less ambiguous but also a more practical and just alternative for the adolescent. Given the overwhelming evidence illustrating biological and psychosocial differences, requiring an adolescent to make legal decisions alone seems unjust. The adoption of a "per se" approach, based on exclusionary rules whenever an adolescent is denied right to counsel (Grisso, 1980), appears to be the only reasonable alternative when dealing with juvenile offenders.

Further psychobiological research has suggested a distinction in psychosocial development between male and females. Extensive research by Berk (1994) and Cohn (1991) has shown that there is significantly lower ego development in adolescent boys than in adolescent girls. The ego is known to moderate moral thinking, empathy, and aggression, and these findings may explain why more crimes are committed by adolescent boys (Cohn, 1991). Although this finding may, at first, seem irrelevant to the overall argument of adopting a "per se" approach to juvenile offenders, it may actually be significant in highlighting the importance of this approach, especially when considering male offenders. If young males are typically shown to have less ego development, it seems appropriate that they should be considered less competent to make their own rational decisions, suggesting that they should be allowed contact with an attorney or interested adult during interrogation procedures. This research showing lower ego development in boys may prove essential when arguing for a "per se" approach to adolescent offenders, particularly the young adolescent males.

Perhaps the most prominent and telling results on the topic of juvenile competence to waive Miranda rights and on the advocacy of a "per se" approach comes from research conducted by Grisso (1967). Attempting to reveal the competency of juveniles to waive Miranda rights, this study quickly received attention from mental health and legal professionals. This research was particularly important due to the fact that the study employed multiple measures, multiple populations, and adult populations, which considerably increased the external validity. The research by Grisso (1980) indicated that there was a significant difference between adult and juvenile comprehension of Miranda rights and, more importantly, that young juveniles should have an attorney present, in accordance with the "per se" assumption. In measurements of comprehension of the vocabulary used in Miranda rights, it was shown that over 60 percent of juveniles failed to meet the minimum comprehension levels for basic words such as "interrogation" (Grisso, 1980). In addition, 62 percent of juveniles, versus 22 percent of adults, were under the assumption that the court judge could penalize them for remaining silent during the interrogation process (Grisso, 2003). This finding is particularly alarming and may indicate why juveniles are more willing to disclose information during interrogation. The lack of factual and inferential understanding of the Miranda waiver was particularly pronounced for juveniles 14 years and younger, indicating that the competence to waive Miranda rights may be significantly related to age and IQ. Given that adolescents under 15 do not meet the adult level of understanding, this seems to point to the need for a "per se" approach when dealing with juvenile offenders. As evidenced by the Grisso studies, a "totality of circumstances" approach is not the appropriate criteria; thus, a fundamental restructuring of the interrogation procedures is needed when dealing with juvenile offenders.  

The aforementioned psychological research seems to clearly argue for a "per se" approach to juvenile suspects and offenders; however, there is a significant body of research arguing that juveniles and adolescents are not as different from adults as some studies suggest. These psychologists provide a counter argument to the "per se" approach and, instead, point to the validity of the "totality of circumstances" argument. Weithorn & Campbell (1982) found that 14 year olds were just as rational and competent as 18 and 21 year olds when confronted with moral dilemmas. Similarly, research by Diver-Stamnes & Thomas (1995) found no significant difference in the reasoning abilities of 9 and 21 year olds. These findings come in stark contrast to the results reported in the Grisso studies. Thus, the argument supporting a "per se" approach to juveniles must be further evaluated and considered in light of these conflicting findings. 

Legal applications of a "totality" vs. "per se" approach

The legal perspectives on the "per se" and "totality of circumstances" approach are equally conflicting, and, arguably, even more controversial. The psychological research aims to highlight facts about adolescent competence yet the legal applications of these findings often result in contentious decisions that affect the lives of both guilty and innocent juveniles.

In the 1990s, the United States saw a nationwide change in laws relating to juvenile offenders. Due to public perception that adolescent crime was on the rise, many pushed and demanded stricter, more punitive laws, allowing adolescents to be tried as adults. Many states adopted a new approach to juvenile justice, making it easier for adolescents to be transferred to adult court and focusing more on punishment as opposed to rehabilitation. These new laws gave juveniles the worst of both worlds, such that they were neither afforded the due process rights of adults nor the rehabilitative care given to child offenders. Essentially, juvenile offenders were being treated like adult criminals, despite evidence that they were cognitively and emotionally immature. The inability of the legal system to come up with a system that gives adolescents a degree of responsibility awarded to adults while also recognizing their fundamental intellectual and cognitive immaturity has resulted in various cases highlighting conflicting notions of adolescent competence.

Legal cases such as Fare vs. Michael (1979) suggest that many adolescents are in fact competent to waive their Miranda rights; they are mature enough to know the legal implications of their actions and, thus, do not need assistance from an attorney or interested adult. Here, the 16 year old adolescent in question was denied access to his parole officer and, consequently, waived his Miranda rights after being denied the right to counsel. The court was given undue discretion in determining the validity of this juvenile's waiver of rights, and this case is a clear example of the "totality of circumstances" approach that often results in the harsh treatment of young offenders. The court decided that, given the adolescent's age and previous record of delinquency, he was somehow competent to waive his rights, ignoring the possibility that he may have been intellectually and emotionally incompetent to do so.

A similar lack of objective discretion was seen in the Commonwealth vs. Malvo case (2003) in which a 17 year old male was presumed to have been acting knowingly and voluntarily when waiving his Miranda rights during police questioning and was subsequently prosecuted. This highly subjective "totality of circumstances" approach seems flawed and extremely arbitrary, and the implementation of exclusionary rules, namely a "per se" approach, would greatly reduce the subjectivity of this aspect of the juvenile justice system. If adolescents were given access to an attorney or interested adult immediately upon entering an interrogation, the issue of determining whether or not the juvenile competently waived their rights would not be in question.

Although these legal cases clearly point to basic flaws latent within the "totality" approach, other cases show the more favorable outcome of a "per se" approach with respect to juvenile offenders. In cases such as Commonwealth vs. Roane (1974), Commonwealth vs. Harmon (1970), and Gallegos vs. Colorado (1962) the Supreme Court deemed these juveniles incompetent to waive their rights in the absence of in interested adult. These cases demonstrate the legal application of the psychological results that illustrate juveniles' intellectual and emotional immaturity as well as their lack of understanding of their legal rights. These court cases attest to the fact that juveniles need special direction and assistance from parents or attorneys in order to establish and uphold their rights during legal investigations.  

As evidenced by these legal cases, it seems unreasonable for courts to presume that juveniles are competent to waive their rights and represent themselves during interrogations. Even juvenile criminal behavior with which it is difficult to sympathize, the fact that every accused should receive fair representation during indictment is one of the more basic, fundamental requirements of the legal system. Juveniles are often vulnerable to misleading interrogation and police tactics and this point was clearly demonstrated in the Central Park Jogger case. The susceptibility of juveniles to the coercion and intimidation techniques of investigators proved to be crucial in this case, resulting in five juveniles confessing to a crime that they did not commit. Although many claim that the parents of these adolescents were present during confession, the hours of interrogation leading up to the confession were unrecorded, perhaps suggesting that the adolescents were forced to confess to the crime, despite the fact that there was no forensic evidence linking them to the victim. Cases such as this highlight the legal application of a "totality" approach. Treating juveniles as adults often leads to retractable statements, false confessions, and various other legal dilemmas that impede the legal process.

The fact that a significant percentage of adults, roughly 60 percent (Grisso, 2003), do not fully understand their Miranda rights and the application of such rights suggests that young juveniles may also lack a fundamental understanding of these legal rights. As seen in Berghuis vs. Thompkins (2008), a suspect must explicitly invoke or waive their rights in order for them to be deemed valid. A juvenile simply failing to speak, does not necessarily imply that they are invoking their Miranda rights. Many juveniles may fail to realize this subtle point that can, and often does, result in major legal consequences.

Integrating Psychological & Legal findings and Practical alternatives for the future

From an analysis of the social science research on this issue of juvenile competency to waive rights, it is clear that courts use the psychological research when it has a tendency to help the prosecution's or defense's case. That is to say, scientific research is presented in court in the form of legal briefs, yet the court does not have to be bound by the findings. This fact is compounded by the cases setting legal precedence that influence future cases involving juvenile offenders. It seems necessary, therefore, to have a generally applied protocol that moderates the notions of juvenile incompetence as well as juveniles' right to make their own decisions.

The difficulty arises in that supporters of a "totality" approach claim that a "per se" approach may provide too much protection to savvy juveniles who are familiar with the judicial system. The involvement of an interested adult may give these adolescents unnecessary protection, given that they already know the ins and outs of the legal process. Despite research indicating no significant correlation between a juvenile's understanding of Miranda rights and their past experience with the legal system (Grisso, 1980), supporters of a "totality" approach continue to point to this issue as a potential concern. Contrary to this, supporters of a "per se" approach claim that psychological research should form the basis for the application of exclusionary principles to guide interrogation procedures with juveniles. Just as waivers can be deemed invalid for individuals who cannot understand English, (USA vs. Garibay, 1992), waivers given by juveniles in the absence of an interested adult should be treated in the same way.

Although there are clearly issues with both the "totality" and "per se" approaches, it seems much more reasonable that juveniles be awarded some assistance, particularly those juveniles 14 years of age and younger. Many studies seem to agree that juveniles under 14 years have significantly reduced emotional and intellectual capacities compared to their adult counterparts (Grisso, 1980; Geidd et al., 1999). Thus, it seems fair, and necessary, to give 14 year old offenders contact with an interested adult before becoming involved in the interrogation process. With regard to juveniles 15 years and above, there seems to be a need for a degree of individualized justice; evaluating a juvenile's competency on a case by case basis may be the only way of balancing a "per se" and "totality of circumstances" approach. Juvenile offenders could, perhaps be assessed prior to investigation in order to gauge their knowledge of the law, as well as other cognitive capacities. This would prevent courts from having complete discretion in determining whether a juvenile competently waived their Miranda rights; instead, there would be data collected from the juvenile in question. Juveniles demonstrating an adequate level of competence may be given the option to waive or invoke their rights, while juveniles showing a substandard level of competence would be given the right to counsel with an interested adult.

This concept of individualized justice for juveniles over 15 represents one of many possible solutions to this issue of juvenile competence to waive rights. A system of individualized justice seems to best moderate between these issues when factoring in conflicting psychological research with seemingly contradictory applications within legal precedence. Each juvenile is different, cognitively, emotionally, and intellectually. In some cases, a 14 year old may prove more legally competent than an 18 year old; thus, it seems logical that a system of individualized justice, analyzing the cognitive competence of adolescents prior to interrogation, is the best way of handling this issue within juvenile justice.

The psychological and legal evidence supporting the implementation of a "per se" approach seems overwhelming given the various neuro-psychological studies and scientific literature. However, there is an equally large set of conflicting information that endorses the use of a "totality" approach to juveniles. In order for the legal system to progress in any way, it is clear that professionals must settle for a middle ground approach that satisfies the demands of these two viewpoints. The proposed use of individualized justice addresses one possible solution, and there are surely many more solutions that can be considered. One thing is certain: the importance of psychological studies is becoming more and more apparent as these issues of competence and maturity come to light, and the importance of scientific research on informing the legal system will continue to be a relevant point of discussion within the complex system of juvenile justice.


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Berghuis vs. Thompkins, 547 F.3d 572, 575 (2008)

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Cohn, L.  (1991). Sex differences in the course of personality development: A meta-analysis. Psychological Bulletin, 109,252-266.

Commonwealth vs. Harmon, 440 Pa. 195 (1991)

Commonwealth vs. Malvo, 63 Va. Cir. 22 (2003)

Commonwealth vs. Roane, 459 Pa. 389 (1974)

Diver-Stamnes, A., & Thomas, R. (1995). Prevent, repent, reform, revenge: A study in adolescent moral development.  Westport, CT: Greenwood Press.

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Gallegos vs. Colorado, 370 US 49 (1962)

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USA vs. Garibay, 967 F.2d 593 (1992)

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