Youngsters may get unfair trial

December 02, 2004, vol. 31, no. 7
By Carol Thorbes

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Child and adolescent defendants between the ages of 11 and 14 are at risk of getting an unfair trial in adult court because many of them are incapable of fully understanding the legal proceedings.

If tried in adult court, 78 per cent of them would show deficits in understanding their adjudication proceedings. Those are some of the key findings of new research evaluating the extent to which 11 to 17-year-old defendants intellectually understand and are able to participate in adult court proceedings.

Ron Roesch, a psychologist specializing in law at Simon Fraser University, and Jodi Viljoen, one of his former doctoral students, authored the study in which 152 young male and female defendants were interviewed. The defendants were awaiting trial in Washington State.

Completed over six months in 2003, this study is the first internationally to use the fitness interview test to evaluate young defendants' understanding of adjudication proceedings and their ability to communicate with lawyers. Roesch and several colleagues developed the test in 1984 to evaluate the legal competency of adult defendants.

Child and adolescent defendants in this study went through other testing to determine their understanding and appreciation of their interrogation rights, and their psychological well being.

This study is also the first, globally, to examine the relationship between Attention-deficit/hyperactivity disorder (ADHD) symptoms and legal competency. The study looked for any links between ADHD symptoms and legal competency because previous studies have indicated a high incidence of ADHD in young offenders.

“Youth with these symptoms were less able to communicate effectively with their attorneys than other defendants. They were less able to participate in legal decision-making, testify relevantly and appropriately manage their courtroom behaviour. This is consistent with previous research that has noted youth with ADHD symptoms tend to have social skill impairments,” says Viljoen, whose doctoral dissertation is the basis of this study.

Viljoen is now an assistant professor at the University of Nebraska-Lincoln's department of psychology. The forensic psychology journal Criminal Justice and Behaviour will soon publish a paper based on this study called Assessing child and adolescent defendants' adjudicative competence: interrater reliability and factor structure of the fitness interview test. Viljoen, Roesch and Gina Vincent, another researcher, co-authored the paper.

Viljoen and Roesch attribute child and adolescent defendants' poor legal comprehension to the fact “they have not yet reached cognitive maturity.”

The duo discovered these defendants have notable cognitive deficits, such as a low IQ and symptoms of depression, anxiety and oppositional behaviour problems.

Research findings about 11 to 14-year-old child and adolescent defendants include: 53 per cent did not adequately understand their interrogation rights (e.g. right to silence, right to counsel).

Seventy per cent could not appreciate that their lawyer's job was to assist them. Eighteen per cent of defendants said they would not tell their attorney important case details, despite attorney-client privilege. Eighty-seven per cent of juveniles waived their right to silence; 90 per cent waived their right to a lawyer.

Viljoen and Roesch conclude that attorneys may be hard-pressed to represent juvenile defendants fairly in adult court proceedings because of their clients' compromised legal competency.

The two make a number of recommendations on how the legal system can improve the situation, including creating special protections, such as requiring attorney presence during police questioning.

“If juveniles are being tried in adult court without much understanding of their rights and how the judicial system works, the potential for them to be unjustly convicted increases,” reasons Roesch.

“If that conviction occurs in adult court and results in juveniles going to adult prisons, we know from research that those kids are more likely to be sexually and physically victimized and recommit crimes.”

The rising number of child and adolescent defendants being tried in adult courts, especially in the U.S., motivated Roesch and Viljoen to undertake this study. According to U.S. statistics for the year 2000, the number of juveniles admitted to U.S. prisons more than doubled from 3,400 in 1985 to 7,400 in 1997.

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