Extending the Privilege against Self-Incrimination to the Juvenile Waiver Hearing

Abstract

Minors who commit crimes are commonly placed under the jurisdiction of the state or federal juvenile justice system. Because juvenile status is statutorily rather than constitutionally mandated, juvenile courts may waive jurisdiction over young offenders, sending them to the adult criminal courts for trial. 1 A juvenile waiver hearing is an individualized determination of whether jurisdiction over a given child should be ceded to adult criminal court. The juvenile court considers a wide variety of criteria in making this decision, including the child's age and criminal history, the severity of the offense, and the likelihood of successful rehabilitation in the juvenile justice system. In seeking waiver, the state often attempts to introduce a juvenile's own statements as evidence of her maturity or unamenability to treatment in the juvenile system. However, the use of these statements, which range from confessions to police at the time of arrest to statements made at court-ordered psychiatric evaluations, threatens juveniles' Fifth Amendment privilege against self-incrimination. While the Supreme Court has delineated the scope of the privilege against self-incrimination at adult criminal trials 2 and at juvenile delinquency hearings, 3 there has been no such resolut A.B. 1992, Dartmouth College; J.D. Candidate 1995, The University of Chicago. ' States use a variety of terms in reference to this process. While this Comment refers to the change in jurisdiction as waiver, it is also known as transfer, diversion, or certification. 2 See generally Fisher v United States, 425 US 391 (1976) (Fifth Amendment does not protect against compelled document production when request is made to party's attorney); Schmerber v California, 384 US 757 (1966) (compelled withdrawal of blood for blood-alcohol testing does not implicate Fifth Amendment); Griffin v California, 380 US 609 (1965) (Fifth Amendment prohibits state prosecutor's comments that defendant's silence suggests guilt); Hoffman v United States, 341 US 479 (1951) (extending Fifth Amendment privilege to answers that are merely links in an incriminating chain of evidence). ' See In re Gault, 387 US 1 (1967) (noting that privilege against self-incrimination should be applicable to juveniles as well as adults).