Under the Illinois Juvenile Court Act, a minor who is under 13 at the time of the commission of a serious crime must be represented by counsel during the entire custodial interrogation. 705 ILCS 405/5-170(a). When the minor under 13 is in custody, Miranda warnings are not necessary. The law requires that the police provide the juvenile with a lawyer.
A juvenile who is one day shy of 13 gets an automatic lawyer, yet a juvenile who is just one day older must navigate the Miranda warnings in the same way as a sophisticated adult would be required to do.
Surprisingly, statistics show that 80% of suspects waive their Miranda rights. That would apply to the juveniles 13 and over. In one recent Illinois Supreme Court case, a police officer questioned a suspect in his home concerning a possible murder. The police officer who did the interrogation was not in uniform. He did have a revolver in plain sight.
The suspect was read his Miranda warning and indicated that he knew what it meant. The suspect then made incriminating statements. The Illinois Supreme Court held that the suspect was never formally in custody for Miranda purposes because a reasonable person in his position would have understood that he was free to terminate the interrogation at any time. The suspect in this case was only 9 years old. In re D.L.H., 2015 IL 117341 (May 21, 2015).
The key in this case was whether the 9-year-old was in custody. No police interrogation of any murder suspect under the age of 13 can be done without a lawyer being present. The justices of the Illinois Supreme Court held that the 9-year-old was not in custody and found that he had no automatic right to counsel. However, the court found that the admissions in the interrogation were involuntarily given and were suppressed.
By comparison, in New Mexico there is a statute that provides that no confession, statement or admission may be introduced against a child under the age of 13 on the allegation of a juvenile petition (New Mexico Delinquency Act, NMSA Section 32A-2-14(F)). On the other hand, those who are 15 and older are covered by the same confession rules that apply to adults. The New Mexico law also provides that “there is a rebuttable presumption that any confessions, statements or admissions made by a child 13 or 14 years old to a person in position of authority are inadmissible.”
In short, New Mexico as a model should guide Illinois legislators to reach a legal solution between the rights of a child and the rights of an adult in an interrogation process.
Robert Kreisman of Kreisman Law Offices has been serving as the chair of the Administration of Justice Subcommittee of the Public Affairs Committee of the Union League Club of Chicago since 2014. The subcommittee works on reform in the criminal justice system, including the juvenile justice system in Cook County and in Illinois.
Kreisman Law Offices has been handling civil litigation matters for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Palatine, Naperville, Glencoe, Mount Prospect, Lincolnwood, Riverdale, Waukegan, Elgin, Blue Island, Palos Heights, Naperville, Glenview, Northfield, Northbrook, Calumet City and Evanston, Ill.
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