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CHILDHOOD TRAUMA'S LURKING PRESENCE IN THE JUVENILE INTERROGATION ROOM AND THE NEED FOR A TRAUMA-INFORMED VOLUNTARINESS TEST FOR JUVENILE CONFESSIONS.

I. INTRODUCTION

Childhood trauma is increasingly recognized as an all-too-common part of the childhood experience in our country. (1) Recent scholarship has highlighted this tragic reality and begun the work of identifying the myriad ways that childhood trauma is relevant to youths' interactions with our criminal justice systems. On a parallel track, burgeoning social science and neuroscientific research make clear that the impact of childhood trauma is profound, tangible, and can endure into adulthood. Momentum is thus building for a research-based, trauma-informed approach to juveniles caught in the web of our juvenile and criminal justice systems.

While much has been written on how and why childhood trauma increases the likelihood that a youth will end up involved with the criminal justice system--and some has been written on how traumatized youth should be treated once their case is adjudicated and they are sentenced--comparably little has been said about how prior trauma actually impacts a youth's interactions with the players of the criminal justice system and the likely outcomes. This article will focus narrowly on one aspect of a youth's early interactions with the criminal justice system during a critical phase that is often outcome-determinative: the police interrogation.

It is now widely recognized that modern police interrogation is an inherently psychologically coercive process that can, and all too often does, result in coerced and false confessions from innocent people. In the wake of Netflix's Making a Murderer, the public is also now keenly aware that youth are more vulnerable in the interrogation room and at greater risk for involuntarily and falsely confessing to crimes that they did not commit--even very serious, horrific crimes. (2) Consider Brendan Dassey, the sixteen-year-old subject of Making a Murderer, who confessed in graphic detail to the rape and murder of a twenty-five-year-old woman, but whose conviction was vacated last year by a federal judge (3) in a decision affirmed by the Seventh Circuit Court of Appeals. (4) The Seventh Circuit concluded that Brendan's confession was coerced by two police interrogators who promised him leniency and fed him details of the crime. (5) Also consider Robert Davis, who falsely confessed at the age of eighteen to killing a mother and her child and then burning down their house to cover up the crime, after police lied that his DNA placed him at the scene and threatened him with the death penalty. (6) Robert was finally pardoned by the governor of Virginia and released from prison in 2015 after thirteen years of wrongful incarceration, and fully exonerated in 2016. (7) Sadly, Brendan and Robert are not anomalies; their stories are all too common.

With this backdrop in mind, what has yet to be adequately researched or addressed by the courts is the interplay of trauma and youth in the interrogation room. While some social science research has been conducted, it has been geographically limited, conducted by a single research team in a foreign setting. (8) This research relied on self-reporting by the subjects and focused on psychological theories, without addressing the ways in which trauma physically changes the brain of a child. (9) While not specifically focused on the interrogation setting, there is now ample neuroscientific evidence establishing that childhood trauma alters the developing brain of a youth in significant ways. We know that youth are already inherently vulnerable in the interrogation room; this article posits that a childhood history of abuse, neglect and/or trauma puts youth at an even greater risk of making an involuntary and/or false confession when interrogated by police.

The rapidly evolving field of neuroscience has shown that youth are categorically less culpable and more capable of rehabilitation than adults. (10) Principles now recognized by the United States Supreme Court, (11) as well as research on the brains of adolescents and young adults, prove that youth are different in ways that are critically--and constitutionally--relevant to how they respond in an interrogation setting. Neuroscientific research on the brains of victims of childhood maltreatment and trauma also now shows that their brains are different in significant ways than those of non-traumatized youth. (12) Thus, where a juvenile suspect has a personal history of abuse, neglect, and or trauma, courts should consider that history as a factor in the totality of the circumstances voluntariness analysis when determining whether the elicitation of a confession violated a juvenile defendant's constitutional due process rights. (13)

Childhood trauma is pervasive among American youth--and particularly prominent in the juvenile justice population. Simultaneously, increasing awareness of the vulnerability of youth in the interrogation room creates a ripe environment for a rigorous study of childhood trauma as a risk factor for coerced and false confessions. Such research is necessary for defense attorneys in the courtroom and policymakers in the legislature to advocate for childhood trauma to be included as a factor in the totality of the circumstances test used by courts when determining whether a juvenile confession is voluntary. (14) This is not a radical proposition, nor is it a novel approach; it is grounded in well-established and peer-reviewed research. Moreover, it is a logical extension of the Supreme Court's recent approach to juvenile criminal cases: one that recognizes the constitutional relevance of neuroscience of the adolescent brain. (15)

This article begins with an explanation of the genesis of this writing, followed by an overview of the pervasive problem of trauma among our country's youth. It then examines the current social science regarding trauma as a risk factor for false and coerced confessions, and the current neuroscientific research on the effects of childhood trauma on the a developing brain. Next, an explanation of police interrogation tactics and youths' inherent vulnerability in the interrogation room sets the stage for the argument that a prior history of childhood trauma will increase a juvenile suspect's risk of coerced and false confession. Finally, this article surveys the current case law addressing childhood trauma as it relates to interrogations and confessions. This article concludes with an argument for courts to include a history of childhood trauma as a factor in the totality of the circumstances analysis used to evaluate confessions by juvenile criminal defendants.

II. CHILDHOOD TRAUMA AT PLAY IN THE INTERROGATION ROOM: A CASE STUDY

At the Center on Wrongful Convictions of Youth ("CWCY"), a project that I co-direct at the Northwestern Pritzker School of Law, we represent individuals convicted as juveniles of serious crimes that they did not in fact commit. We specialize in cases where kids have actually confessed--falsely and involuntarily--to such crimes. For these clients, the police interrogation was absolutely the turning point for their cases because their confessions essentially sealed the deal on their ultimate conviction. (16)

I was inspired to write this article by the story of one of our clients. This client confessed as an adolescent to a very serious crime--a crime that carried a potential life sentence. Before he was picked up by police, his life was colored by neglect, maltreatment, and several specific incidents of trauma. His father had never been in the picture and he was raised by a crack-addicted mother, sometimes with the help of his crack-addicted grandmother. In the months leading up to his arrest, he had been breaking into his neighbors' homes to steal food because his mother had spent all of their money on drugs instead of groceries. My client's school records and documented comments from his teachers indicated that what he endured at home had a pervasive and ongoing impact on his cognitive, emotional, and social functioning.

Yet, when he was picked up and repeatedly interrogated by the police over the course of two days--including middle-of-the-night interrogations, without a parent or any other interested adult present--no one paused to consider how this history, not to mention his young age, might change the way in which the police should conduct their interrogations. Even worse, despite access to detailed information regarding the sad history of his childhood, neither his defense attorney, nor the forensic psychologist who examined him, nor the judge who admitted and found his confession credible, recognized that my client's traumatic history might have made him vulnerable in the interrogation room. Each and every player failed to recognize that interrogation tactics will likely land differently on a traumatized youth than an average adult, and that the police practices used to elicit my client's confession thus required heightened judicial scrutiny.

Before I joined the CWCY, I represented death row inmates in California in their post-conviction proceedings. Much of my capital work was dedicated to mitigation, which required an investigation of the personal histories of my clients, their families, and how their experiences--particularly traumatic ones--impacted their functioning and culpability. This work required an appreciation of the debilitating power of trauma and the profound damage that trauma can wreak on an individual's cognitive functioning and behavior. Coming to my CWCY client's case with this professional background, it was immediately apparent that prior trauma and neglect undoubtedly rendered him more vulnerable to the police's psychological manipulation.

To some extent, this did not even require my prior experience, because is it not just common sense that a kid who has been forced to steal to eat would be easily won over by the police's offer of a cheeseburger and fries from his favorite fast food restaurant? Is it not common sense that a kid who rarely gets to use a computer would be easily bought by police who gave him free access to their computers to play games and chat on social media for hours? Is it not common sense that a kid, with few friends, who no adult has paid real attention to for months, would say anything that the police want to hear when they gave him their singular focus and praise his status in and knowledge of what was going on in his neighborhood? (17)

When I tried to find support for these common-sense conclusions in scientific and legal literature to include in our post-conviction briefs, however, I found a near complete absence of research on this topic. This void of research left me ill-equipped as an advocate to make a compelling argument regarding the unique vulnerabilities of my client that rendered him particularly susceptible to coercive police interrogation tactics. While I knew that the neglect and trauma that my client had experienced probably negatively affected his resilience, comprehension, and social interactions in the interrogation room, I had no idea whether these deficiencies had purely psychological roots, neurological explanations, or both. There was also no way to prove my assumptions true.

As explained in this article, the building blocks already exist in well-established research to argue that childhood trauma and maltreatment are collectively a significant risk factor for coerced and false confessions from juveniles. A well-developed and accepted body of neuroscientific research shows that childhood maltreatment, neglect, and trauma have profound, diverse, and enduring effects on the developing brain of youths. (18) Most pointedly, a body of work conducted by a prominent Icelandic psychologist, who has long focused his research on interrogations and false confessions, proves that a prior history of trauma increases the likelihood that a youth will falsely confess. (19) But no one has yet linked these separate spheres of research to make the forceful argument that the deleterious neurological effects of trauma on a youth's brain make them more vulnerable in the interrogation room. The goal of this article is to initiate this discussion as well as: to encourage more rigorous research that marries the psychological and neurological effects of trauma; to explain why traumatized children are more likely to involuntarily and falsely confess; and to pave the way for better-informed, more effective advocacy on behalf of traumatized, abused, and neglected youth who confess to crimes.

III. RELEVANT DEFINITIONS

Before this article explores the connection between trauma and coerced and false confessions, clarification is needed on how the terms "child maltreatment" and "childhood trauma" are used and intended throughout this article. In line with the traumatic stress field's adoption and definition of the term "complex trauma," this article broadly refers to a youth's experience of multiple, chronic, and prolonged developmentally adverse events, including abuse, neglect, and other forms of extreme stress or trauma. (20) These adverse experiences are typically interpersonal in nature, and "often occur within the child's caregiving system and include physical, emotional, and educational neglect and child maltreatment beginning in early childhood." (21)

"Trauma" is defined as an experience that threatens a person's life, safety, or well-being, overwhelming a person's ability to cope and eliciting "intense feelings such as fear, terror, helplessness, hopelessness, and despair." (22) While much abuse that American children experience constitutes trauma pursuant to this definition, it is worth underscoring at the outset that "[m]uch abuse and neglect, whilst stressful, is not perceived by the child as trauma, if only because of the very predictable and chronic nature of some forms of maltreatment." (23) In fact, many forms of interpersonal trauma (e.g. physical and sexual abuse and neglect) experienced by so many American children do not necessarily meet the criterion for a "traumatic event" set forth in the Diagnostic and Statistical Manual of Mental Disorders (DSM). (24)

IV. A PANDEMIC OF CHILDHOOD TRAUMA IN JUVENILE AND CRIMINAL JUSTICE SYSTEMS: WHY WE CANNOT IGNORE CHILDHOOD TRAUMA AS A SIGNIFICANT RISK FACTOR FOR JUVENILE FALSE AND COERCED CONFESSION

My client's story is not unique. The story of his childhood is an all too familiar one in America today. According to Dr. Bessel A. van der Kolk, a professor of psychiatry at Boston University Medical School, the director of The Trauma Center in Boston, and a leading trauma-specialized adolescent psychiatrist, "[c]hildhood trauma, including abuse and neglect, is probably the single most important public health challenge in the United States... [impacting] more than 3 million children" per year. (25) The groundbreaking Adverse Childhood Experience ("ACE") study, begun by Kaiser Permanente and the Centers for Disease Control and Prevention in 1995, revealed "adverse childhood experiences are vastly more common than recognized or acknowledged...." (26) Among the ACE study's sample of 17,337 adults, 11% reported having been emotionally abused as a child, 30.1% reported physical abuse, and 19.9% reported sexual abuse. (27)

Prior childhood trauma is particularly endemic among juveniles in the juvenile and criminal justice systems in our country. Approximately 90% of youth in juvenile detention facilities report exposure to at least one traumatic event prior to their arrest. (28) According to a recent study conducted in 2013 in Cook County, in the year prior to their detention: 92.5% of youth in a Chicago juvenile detention facility experienced at least one traumatic event; 84% experienced more than one trauma; and roughly 57% were exposed to trauma six or more times. (29) These findings are similar to results from studies of youth in other facilities across the country. (30) According to the National Child Traumatic Stress Network, at least 75% of youth in the juvenile justice system experienced "traumatic victimization" and 11-50% have post-traumatic stress disorder ("PTSD") before arrest. (31)

Furthermore, research indicates that not only is the incidence of trauma exposure high among youth involved in the criminal justice system, but this trauma typically begins early in life, reoccurs, and persists over time. (32) Indeed, researchers have concluded that "[y]outh in secure juvenile justice settings are at particularly high risk for histories of complex trauma, including polyvictimization, abuse and family violence, and losses that compromise core attachments with caregivers." (33)

So what does this mean for our legal system? What does is it require of its actors? Excellent scholarship has recently emerged suggesting how our legal system should respond to the pandemic of trauma among our youth, and recommending how attorneys can better advocate for juvenile clients with a trauma history. The Northwestern Juvenile Project at Northwestern University Hospital, for example, has been conducting groundbreaking work on the prevalence of trauma among our country's juvenile justice population, and several ambitious articles published in the past couple of years have tackled the question of how the criminal justice system and juvenile advocates should respond to the trauma pervasive among the juvenile justice population. (34) Specifically, Jessica Feierman and Lauren Fine of the Juvenile Law Center--one of our country's leading juvenile justice organizations--published a sweeping piece on how trauma impacts legal advocacy on behalf of juveniles, and how to best present trauma in the context of the courtroom. (35)

More recently, Samantha Buckingham, professor of law and director of the Juvenile Justice Clinic at the Center for Juvenile Law and Policy at Loyola Law School, published a broad scope article on what trauma-informed juvenile justice means and what it requires. (36) Buckingham concludes that "[t]rauma-informed justice incorporates an understanding that trauma is pervasive amongst children in the juvenile justice system" and argues for a presumption that a juvenile has a history of trauma any time he or she comes into conflict with law enforcement and the justice system. (37) She proposes that "[a] contemporary understanding of trauma must permeate the juvenile justice system through its framework, inform the mindset of all its participants, and drive all reforms," as well as "focus[] on early identification and intervention, presume[] trauma exposure in its procedures and processes, utilize[] evidence-based trauma-specific therapies, provide[] an appropriate safe setting for therapeutic interventions, and avoid[] incarceration." (38) The implications for and potential benefits of a trauma-informed approach to justice for juveniles are thus incredibly broad.

This article, however, will narrowly focus on one limited part of a youth's interaction with the justice system--the interrogation--which these articles touched on but did not address in depth. Feierman and Fine pointed out that a history of childhood trauma would be significant to the police interrogation of a juvenile, and thus should be considered by a court analyzing any confession elicited from a youth with a history of trauma. (39) They proposed that legal and policy advocates lobby for statutes that require courts to include trauma in the totality of the circumstances analysis, clarify that trauma can be relevant "even when a youth's symptoms do not meet the requirements for a diagnosis of post-traumatic stress disorder," and explain "the ways in which trauma may make it difficult for youth to withstand the pressures of an interrogation." (40) Buckingham also specifically identifies the police interrogation as a phase of the criminal justice process to which a history of childhood trauma is relevant and that requires a trauma-informed approach. (41)

From the clinical perspective, forensic traumatologist Lorie Hood has concluded that "a history of trauma" will make a juvenile more vulnerable in the interrogation room and cause the likelihood of a false confession to "skyrocket." (42) Hood explained that "[t]rauma and extreme psychological stress have a broad range of effects on brain function and structure, as well as on the neuropsychological components of memory," including but not limited to "more difficulty regulating their emotions, physiological and emotional responses and often read social cues differently" and "memory disturbances." (43)

This article picks up where these scholars and clinicians left off, with the assumption that many youth picked up and ultimately interrogated by law enforcement have a history of trauma, and that their trauma history negatively impacts how such youth handle the interrogation process, increasing the risk that they will involuntarily and/or falsely confess to a crime. Given the disturbingly high rate of prior childhood trauma among youth who come into contact with the justice system--paired with the shockingly high rate of false and coerced confessions from youth--this article argues that childhood trauma is lurking in the background and infecting a majority of juvenile interrogations with dire results.

V. CURRENT STATE OF SOCIAL SCIENCE RESEARCH REGARDING CHILDHOOD TRAUMA AS A RISK FACTOR FOR FALSE AND COERCED CONFESSION

As stated earlier, there has been very little research conducted on childhood trauma as a risk factor for false and coerced confessions. In fact, to the author's knowledge, the only researchers who have studied trauma as a risk factor for false confession are a team from Iceland, led by Gisli H. Gudjonsson. Gudjonsson is a former Icelandic detective, a preeminent expert on the psychology of interrogations, and the author of one of the primary instruments used to assess an individual's suggestibility. (44) Much of Gudjonsson's research regarding the impact of adversity on the likelihood of false confession accordingly focused on suggestibility.

According to Gudjonsson, he was the first psychologist to study the impact of prior adverse life experiences on police interrogations. (45) In line with Robert Agnew's theory that a history of adverse life events is associated with crime and delinquency, (46) Gudjonsson hypothesized that a custodial false confession may be "associated with negative life events and chronic strain, including bullying, violent and sexual abuse, death within the family, parental separation, expulsion from school, and serious substance misuse." (47) In 2007, he tested his hypothesis on a sample of over 10,000 Icelandic youth enrolled in secondary education, relying upon the subjects' self-reporting of both any adverse life events and whether they had ever falsely confessed to something they did not do. The results indicated that: "multiple exposures to unpleasant or traumatic life events are associated with the reporting of false confessions during interrogation." (48)

Specifically, the most serious adverse life events, such as sexual abuse, domestic violence, or the death of a parent or sibling, were rare among the non-false confessors (3-12%), but significantly more common among the claimed false confessors (16-37%). (49) Neighborhood and school violence was a particularly potent predictor of false confession: 62% of false confessors reported being assaulted in the street and 37% reported having been assaulted at school. (50) Previous sexual abuse also had a powerful correlation: 31% of the false confessors reported prior sexual abuse, compared to 9% of the non-false confessors. (51) Gudjonsson concluded that individuals who have experienced adverse life events are more vulnerable to making a false confession during interrogation. (52) He explained that the "continual emotional strain" impairs their ability to effectively cope with stressful events such as arrest and interrogation, because they are unwisely eager or more easily persuaded to take on a case for a peer, or they no longer care about the consequences of their behavior. (53)

Inspired by the statistically significant results from their first study, Gudjonsson's team conducted a series of related studies over the course of the next decade, premised on the hypothesis that there is a "strong link" between "interrogative suggestibility and exposure to life adversity." (54) His first set of follow-up studies focused on the suggestibility of individuals who have experienced adverse life events, and confirmed that the "experience of previous negative life events makes people potentially more vulnerable to giving erroneous information during coercive police tactics." (55) In 2009, Gudjonsson tested his hypothesis on a larger, more diverse sample--24,627 high school students from seven different European countries--and obtained markedly similar results. (56) Across the board, multiple exposures to "unpleasant life events" were an "important risk factor for making false confessions during interrogation." (57) For male youth subjects, in particular, sexual abuse by a non-family member adult was the single best predictor of a later false confession. (58)

Most recently, in 2015, Gudjonsson conducted a study focused more narrowly on the correlation between prior adverse life events, specifically violence within the home or the death of a parent or sibling, "stress-sensitivity levels," and self-reported false confession. (59) He used a sample of 5,439 male students enrolled in further education in Iceland. (60) The level of physical violence in the home and the death of a parent or a sibling significantly increased the likelihood of false confessions, (61) and that "stress sensitivity" exacerbated the effect of these adverse experiences on false confessions. The researchers concluded that stress sensitivity may increase both physiological arousal and susceptibility to external influences, and thus be a critical factor in predicting the likelihood of false confessions. (62)

While Gudjonsson's research strongly suggests that prior adverse life experiences make a youth more likely to falsely confess, the studies do not prove whether the connection between self-reported false confession and past trauma is causal, rather than merely correlative--a question neurobiological research may help answer. Moreover, Gudjonsson's studies relied on self-reporting by participants, which inevitably leaves significant room for error. Other limitations of Gudjonsson's studies include the fact that the sample size of individuals who actually reported a false confession was also relatively low, negatively impacting the reliability of his results, and that his studies were geographically restricted to Iceland and Europe. Nonetheless, the results are compelling and invite further research.

VI. THE NEUROLOGICAL EFFECTS OF CHILDHOOD TRAUMA, ABUSE, AND NEGLECT (63)

Current neurobiological research strongly suggests that Gudjonsson's hypotheses and conclusions, based solely in psychological theories, are correct but do not tell the full story. Until recently, the conventional wisdom was that childhood maltreatment and trauma resulted primarily in psychological issues attributable to arrested psychosocial development and the development of defense mechanisms. (64) Developmental psychologists who study the behavioral consequences of trauma have found the following significant effects on children, including but not limited to: deficits in emotional self-regulation; inadequate regulation of affect and impulse control; apprehensiveness about the reliability and predictability of people; difficulties in attention regulation; a lack of recognition of the cause and effect of their actions; over and under reactivity exhibited emotionally, physically, cognitively, and interpersonally; difficulty returning to a calm state after arousal from a stressful event; a tendency to become confused and unsettled when confronted with stressful events; and extreme clinging, compliance, or distrust. (65) Now, thanks to developments in neuroscience, we know that the damage done to the child is also neurobiological in nature. (66) In other words, the research is clear that childhood trauma physically harms a youth's developing brain. (67)

A. THE NEUROSCIENCE OF THE ADOLESCENT BRAIN

Before exploring the harm that trauma can cause to a child's developing brain, an overview of the differences between adolescent and adult brains is necessary. Compared to adults, youth are "more susceptible to influence, less future oriented, less risk averse, and less able to manage their impulses and behavior" due to the ongoing development and maturation of key parts of their brain. (68) The prefrontal cortex, which is located behind the forehead and is sometimes known as the "CEO" of the brain, does not develop fully until one's early to mid-twenties. (69) The prefrontal cortex is responsible for "executive functioning," which includes planning (and the ability to consider future events), organization, judgment and decision-making, problem solving, working memory, and regulation of mood and emotion. (70) At the same time, the limbic system, which deals with emotion and is stimulated by excitement, risks, stress, and fear, develops earlier than the prefrontal cortex. For an adult, the prefrontal cortex acts as a brake on the limbic system when it is activated by fear, stress, or other exciting emotions but, for adolescents, this "brakes" system does not work as well. (71) The combination of the an immature prefrontal cortex and a more advanced limbic system means that reward-seeking impulses and social pressure more easily overrides rational thinking, resulting in classic teenage traits, such as impulsivity, vulnerability to pressure and suggestibility, as well as a tendency to be motivated by short-term rewards. (72)

B. CHILDHOOD TRAUMA PROFOUNDLY IMPACTS THE DEVELOPING BRAIN

A youth's developing brain is also more vulnerable than an adult brain to the deleterious effects of abuse, neglect, and trauma because of its prolonged period of plasticity: a state of "potential for change" during which new synapses are constantly developing in response to environmental stimuli. (73) This plasticity decreases as children mature. (74) Evolutionarily, this prolonged period of plasticity is highly valuable; it allows for efficient, maximum learning and adaption. (75) This plasticity, however, also leaves a youth's brain more vulnerable to negative influences and stimuli, particularly trauma. (76) Research indicates that "persistently elevated levels of stress hormones" can disrupt the "developing architecture" of the brain. (77) Moreover, the vulnerability of a youth's brain is exacerbated by the fact that the prefrontal cortex and the limbic system are immature, as discussed above, and "more susceptible than adults to the overwhelming effects of trauma." (78) Thus, a child who is raised in an abusive or neglectful environment is primed for maladaptive brain development. (79)

That is not to say that every child who experiences trauma will necessarily suffer impairments, or that any impairment will be permanent. Trauma affects each individual differently and there is a continuum of resilience that depends on many factors, including each individual's psychological resources, as well as external factors such as the presence or lack of positive supportive factors. (80) Research also shows that intervention and various treatment methods can have great success. (81) Trauma, however, has the power to harm a developing brain in significant ways relevant to how a youth will function in the interrogation room, and a traumatized youth left without intervention or treatment will likely suffer at least some form of impairment.

As the following overview of neuroscientific research highlights, the harm to the brain caused by childhood abuse, neglect, and trauma can take many different forms, including degeneration, atrophy, dysfunction, and disconnection between parts of the brain. (82) Most disturbing, in the case of "repeated and severe episodes of trauma or neglect," such trauma can "alter the functional and structural integrity of the brain." (83) Trauma's significant impact on the brain's architecture has long-term physical, emotional, and psychological consequences. (84) The following enumeration of the myriad effects of prior trauma is not comprehensive, but attempts to identify the most significant findings of the neuroscientific research, with a particular focus on those likely to be relevant to a youth's wherewithal in the interrogation room.

1. Consequences of Increased Cortisol

One of the most well-established neurobiological results of childhood abuse, trauma, and stress is an elevated level of the stress hormone Cortisol. (85) Youth who have experienced traumatic stress secrete higher levels of Cortisol. (86) Increased Cortisol causes neurotoxicity in regions of the brain that have particularly abundant receptors for Cortisol, including the prefrontal cortex and the hippocampus, both of which are critical to executive functioning, memory processing, and learning, as well as the amygdala, which is responsible for regulating emotions and particularly the response to fear. (87) Sustained exposure to high Cortisol levels can change the size and architecture of these parts of the brain, cause functional problems, particularly with learning, memory, and executive functioning, and impair a person's ability to handle future stress. (88)

As just one example, studies have shown as much as a 12% reduction in the hippocampus, which is responsible for long term memory storage, and a positive correlation between reduced hippocampal volume and the presence of PTSD and dissociative disorders among a sample of women who reported severe childhood sexual abuse. (89) The studies have not definitively proven that the relationship between childhood abuse and reduced hippocampus volume is causative rather than correlative, but excessive Cortisol levels are at least partially responsible because the hippocampus has "a higher density of receptors for... Cortisol than almost any other area of the brain." (90) MRI studies have also indicated that people maltreated as children may have smaller amygdalas--a part of the limbic center that plays a key role in emotional regulation--as adults. (91)

Increased Cortisol levels have many detrimental functional effects: a person may experience heightened anxiety because their amygdala is over-activated, impaired memory and mood control because of a reduction of the hippocampus, and a decrease in "executive functioning" due to atrophy of the prefrontal cortex. (92) In addition to these immediate consequences of neurotoxic levels of Cortisol, these changes also leave a youth with "a weak foundation for later learning, behavior, and health." (93)

At the same time, where a child endures repeated or chronic stress, the body suppresses the stress response in order to normalize Cortisol levels. (94) This biologically adaptive response can manifest as a dysfunctional, and potentially harmful, response to future frightening or stressful experiences. (95)

2. Hyperarousal & Low Arousal

In addition to regulating emotion, the amygdala also plays a key role in activating the body's physiological response to stress. Under normal conditions, the hippocampus and the prefrontal cortex act as a brake on the amygdala, slowing down or stopping a sustained release of Cortisol. But because sustained elevated Cortisol levels negatively impact the function and architecture of all of these parts of the brain, the feedback loop breaks down and the amygdala no longer properly regulates the stress response when a child experiences significant stress. When the entire system becomes dysregulated in this way, a person experiences hyperarousal, or a hyper-responsive physiological state. (96) "Essentially, the baseline level of arousal... has changed and they cannot control their own responses to stimuli.... They stay hyper aroused and guarded; they are unable to calm themselves down even when they see that there is no danger." (97) Hyperarousal is one of the most common maladaptive responses to chronic stress and it can cause deficits in cognitive ability when it endures. (98) As a result, a youth who has suffered childhood trauma operates at a lower level of functioning than one with a normal developing brain that is unaffected by trauma. (99)

Simultaneously, the impaired functioning of these parts of the brain critical to regulation of the stress response can result in low arousal. Thus, some traumatized children appear to be more reactive to mildly adverse experiences and insufficiently reactive to significant stressors, as well as less capable of dealing with future stress. (100)

3. Increased Noradrenaline and Dopamine

In addition to elevated Cortisol levels, childhood experiences of abuse, stress, and trauma have also been shown to increase levels of two other stress hormones, noradrenaline and dopamine, in youth, which has been correlated with dysfunction of the prefrontal cortex. (101) Because the prefrontal cortex is responsible for "planning and organi[z]ing of actions using 'working memory' and the inhibiting of inappropriate responses and attention to distractions ('executive functioning')," (102) and because dopamine release lower a youth's threshold for reacting to stress and heightens their sensitivity to potentially frightening or threatening cues, (103) elevated noradrenaline and dopamine results in hypervigilance, hyperactivity, and impaired attention span. (104) Many of the resulting symptoms are frequently (mis)diagnosed as Attention Deficit Hyperactivity Disorder ("ADHD"). (105) Overactivation of the parasympathetic nervous system, also related to increased dopamine and other opiates levels, can also lead to dissociation. (106) This means a youth will experience brief, inattentive spells that inevitably hinder their functioning. (107)

4. Reduction in Brain Size

A particularly dramatic measurable effect of childhood abuse, stress, and trauma is an overall reduction in the size and volume of a youth's brain, as well as a reduction of certain specific parts of the brain such as the hippocampus and the amygdala as explained above. One study showed a 7% reduction in overall cerebral volume, which correlated to a decrease in IQ and an increase in PTSD, as well as an overall impairment of cognitive functioning. (108) The reduction in cerebral volume is thus far unexplained, but hypotheses regarding its potential causes include increased Cortisol levels as well as general deprivation and lack of mental stimulation in abusive and neglectful childhood environments. (109)

5. Decreased Integration between Right and Left Hemispheres

EEG studies show diminished integration between the right and left hemispheres of the brain of maltreated children. (110) Follow-up studies revealed that the corpus collosum, the part of the brain that connects the right and left hemispheres, was significantly smaller in several different sample groups of children that had experienced neglect, physical abuse, and/or sexual abuse. (111) Connection and integration between both sides of the brain is necessary for coherent, organized, and rational thought and emotion. (112)

6. Other Effects Shown in EEG Studies

Multiple studies also reveal "EEG abnormalities in the left side of the frontal and temporal lobes" of maltreated children, (113) and dysfunction in the limbic system. (114) A preliminary study indicated increased right frontal lobe activity, associated with sadness and other negative emotions. (115) In event-related potentials ("ERP") tests, an EEG is conducted while the subject experiences specific events like seeing a word or picture on a computer screen. (116) When maltreated children were shown pictures of happy and angry faces and asked to indicate the correct emotion, maltreated children were slower to respond and the EEG showed heightened activity when shown an angry face. (117) The researchers concluded that "negative affect carries a different meaning to maltreated children and elicits a physiologically measurable different response," which "may be adaptive in abusive situations but may become maladaptive when used indiscriminately in different settings." (118)

C. PTSD IS NOT THE ONLY PROBLEM CAUSED BY CHILDHOOD TRAUMA

As the above summary makes clear and as researchers point out, PTSD is not the only harmful neurological or psychological effect of childhood trauma. PTSD is rarely an adequate, complete, or appropriate diagnosis for children. Even when present, PTSD is often not the most damaging or enduring deleterious effect of childhood trauma. As highlighted by child and adolescent psychiatrist Danya Glaser, a PTSD diagnosis "is most appropriate for traumatised adults," and not as appropriate for youth because "children develop much more complex reactions, which are not easily subsumed under that diagnosis." (119) Glaser concluded that "[w]hile PTSD is not infrequently found in children who have been maltreated... it is by no means an invariable consequence" because "[c]hronic abuse and neglect are likely to have a pervasive effect on a child's psychological and biological regulatory processes rather than to lead to discrete conditioned behavioural and emotional responses such as are found in PTSD."

Because of the inadequacy of the PTSD framework, Dr. van der Kolk, along with the National Child Traumatic Stress Network, have proposed a new diagnosis called developmental trauma disorder. This diagnosis is aimed at remedying the current problem faced by practitioners trying to impose a diagnosis of PTSD or other comorbid diagnoses on this category of children. (121) The hope is that a more accurate and complete diagnosis for the effects of childhood trauma will facilitate further and better scientific research and improve approaches to treatment. (122) And, for purposes of this article, a more appropriate diagnosis will better help educate defense attorneys, the courts, and other players in our criminal justice system, paving the way for better trauma-informed outcomes.

VII. CHILDHOOD TRAUMA AS A RISK FACTOR FOR INVOLUNTARY AND/OR FALSE AND COERCED CONFESSION (123)

Armed with this new science regarding the powerful effects of trauma on a child's brain, we can explore how trauma may affect a juvenile's performance and resilience in the interrogation room. First, however, some background on police interrogations is provided to facilitate an understanding of how police elicit confessions, and to appreciate why childhood trauma will make a youth suspect more likely to falsely confess.

According to the Innocence Project, more than 25% of people exonerated by DNA evidence falsely confessed to crimes that we now know with scientific certainty that they did not commit. (124) According to the National Registry of Exonerations, 251 of 2,109 exonerations--almost 12%--involved proven false and coerced confessions. (125) Moreover, there is no question that these numbers are under-representative because they do not include confessions not yet proven false, nor confessions that did not result in a conviction. Youth are overrepresented among false confessors. Studies show that children and adolescents are two to three times more likely to falsely confess during interrogation than adults. (126) In a study of 125 proven false confessions, 63% of false confessors were under the age of twenty-five and 32% were under eighteen, a strikingly disproportionate result. (127) Another study of 340 exonerations found that 42% of juveniles studied had falsely confessed, compared with only 13% of adults. (128) And a laboratory study astonishingly found that a majority of youthful participants complied with a request to sign a false confession without uttering a single word of protest. (129)

Why do false and coerced confessions happen so often to youth? The answer lies in the toxic combination of common psychological interrogation tactics--designed for seasoned adult criminals--that exploit the developmental vulnerabilities of youth. As discussed in section VI.A., supra, youths' brains are not yet fully developed in areas relating to judgment, evaluation of risk, particularly short-term verses long-term risks, and decision-making. Inside the interrogation room, these traits can make youth respond to the pressures of interrogation by deciding that a confession is the only way out of a difficult situation--regardless of its truth.

Most police officers across our country have been trained to conduct interrogations using the Reid Technique, a technique developed and marketed by John E. Reid & Associates for one purpose: to extract confessions. (130) For that reason, Reid itself cautions that its technique should only be used when the police are confident that the suspect is responsible for the crime being investigated. At its core, the technique is a guilt-presumptive, accusatory, manipulative process; and it packs a powerful psychological punch. (131) It is carefully orchestrated to manipulate a suspect's cost-benefit analysis to force the suspect to conclude that confessing is in his or her best interest. (132) The following sections outline how the Reid Technique trains officers to obtain confessions.

A. PHASE ONE: BEHAVIORAL ANALYSIS, A.K.A. THE "HUMAN LIE DETECTOR"

Officers first engage in a non-confrontational, open-ended period of questioning in which the officer is trained to believe he or she can operate as a "human lie detector" by observing and interpreting verbal and behavioral cues. (133) During this conversational opening, officers are trained to observe the suspect's behaviors as he or she answers questions. (134) According to Reid, certain behaviors--slouching, lack of eye contact, crossing one's arms, even scratching one's nose--may indicate that the person being questioned is lying. (135) Reid claims that trained interrogators should be able to detect deception and determine guilt with 80% accuracy. (136) But studies have repeatedly debunked these claims. There is no behavior unique to deception; people--even trained professionals--are poor lie detectors. Research shows that laypeople can only distinguish between truth and deception 54% of the time, and trained professionals perform "only slightly better, if at all." (137) Officers' mistaken belief that a suspect is lying and thus must be guilty is the first step down the road to wrongful conviction.

B. PHASE TWO: INTERROGATION

Officers are trained to isolate the suspect in a small interview room to increase anxiety. (This is often done even before the behavioral analysis interview described above.) (138) The interrogation room should be small, windowless, and without any barriers between the interrogator and the suspect, such as a table. (139) The interrogator is supposed to leave the suspect alone in the room for at least five minutes "to increase the level of insecurity and apprehension." (140)

The interrogator then directly confronts the suspect, re-entering the room and immediately accusing him of the crime. Officers are trained to exude unwavering confidence in the suspect's guilt, to be persistent, and repeatedly and relentlessly accuse. (141) Collaterally, officers are to reject any denials and cut off all claims of innocence made by the suspect. (142) The goal here is to make the suspect feel as though he or she has been "caught." (143) The officer may use props like a thick file of papers that he claims includes the evidence proving the suspect's guilt. (144) He may even lie to the suspect, telling the suspect he has evidence--e.g., a fingerprint, a video or an eyewitness--connecting the suspect to a crime when no such evidence exists. (145) Ultimately, the interrogator aims to make the suspect feel trapped and certain that nothing he can say or do will shake the interrogator's confidence in the suspect's guilt. (146)

Once the interrogator breaks the suspect down to a state of hopelessness, the interrogator implicitly (or sometimes explicitly) suggests that the benefits of confessing will outweigh the costs of maintaining innocence. (147) The interrogator offers a moral or legal justification to make it more tolerable for the suspect to admit guilt. For example, in a case involving sexual misconduct, interrogators may suggest to an adolescent suspect that he was curious--all adolescents are curious after all--or that his hormones may have gotten the best of him for a moment--this happens to the best of us, especially when we are teenagers.

Then, as an out, interrogators will give the suspect a stark choice (albeit a false choice, because, unbeknownst to the suspect, both choices hold the same consequences): (148) are you the guy who temporarily lost control because of curiosity or raging hormones, or are you the sexual predator who planned and premeditated this attack? Interrogators ask the suspect "who would you rather be when you appear before a judge, the curious, impulsive normal guy or the predator?" They may even imply that the judge will be more lenient if the suspect confesses to acting out of curiosity or on impulse.

Interrogators may also suggest that the suspect will get help if he confesses, emphasizing that the only way the suspect can help himself is to confess. For the youth accused of sexual misconduct in the above scenario, the interrogator may vaguely promise that the suspect will get the help that he "needs" if he just confesses. In Brendan Dassey's case, his interrogators told him that confessing would "set him free" and that everything would be "okay" if he just confessed. (149) In Elias V, discussed in Section VIII.A., infra, a case involving a thirteen-year-old boy's confession to the inappropriate touching of a three year old girl, the interrogator emphasized that he had a problem and needed help: "Why don't you just get this over with... so we can get you the help you need? (150) By deploying these tactics at the right psychological pressure points, experienced interrogators can be extraordinarily effective in causing a suspect to produce self-incriminating information. Sadly, far too often, that information can be false.

C. PHASE THREE: CONFESSION

After setting the trap, officers are then trained to elicit a detailed narrative of the criminal act, and record a confession by the suspect in writing or on video. (151) A guilty suspect should be able to provide details of the crime that have not been revealed to the public and should also be able to lead police to information or evidence that was previously unknown to the police. (152) The innocent suspect, however, does not possess this "inside knowledge" of the crime. Recorded interrogations prove that interrogators regularly provide suspects this information during the interrogation, intentionally or not. (153) Such "contamination" usually occurs when interrogators ask leading questions that include information about the crime, like "you committed this offense with Joe, right?" or "You paid $20 for the marijuana, didn't you?" (154) For the innocent suspect, this kind of information disclosure allows him or her to incorporate accurate details about the crime into his or her confession. (155) The result is a false confession which sounds convincingly true.

Today, many experts agree that modern interrogation techniques are psychologically coercive and can lead to false and involuntary confessions, even when used on adults. The United States Supreme Court understands this. Indeed, they recognized this reality back in 1966 in the landmark decision Miranda v. Arizona. (156) The Court, after describing standard interrogation practices and citing the first edition of the Reid interrogation manual, concluded that the "heavy toll" of custodial interrogation may result in false confessions. (157) In 2009, the Court went even further in Corley v. United States, stating that "there is mounting empirical evidence that these pressures [of psychological interrogation generally, not specific to Reid Technique] can induce a frighteningly high percentage of people to confess to crimes they never committed." (158)

Just this year, Wicklander-Zulawski & Associates, a global interrogation training service and John E. Reid & Associates' primary competitor, announced that they will no longer offer interrogation training on the "controversial" Reid Technique." (159) While Wicklander-Zulawski had used the Reid method to train law enforcement and federal government agencies for the past thirty-three years, the company now publicly recognizes that Reid's confrontational approach can, and all too often does, produce false confessions. (160)

Nonetheless, the Reid technique is still regularly used to interrogate youth across our country, with dire results. (161) The Supreme Court, in J.D.B. v. North Carolina in 2011, noted that the "risk [of false confessions] is all the more troubling--and recent studies suggest, all the more acute--when the subject of custodial interrogation is a juvenile." (162) Even John E. Reid & Associates (163) and other law enforcement organizations now recognize that kids need special protections in the interrogation room. In partnership with the Center on Wrongful Convictions of Youth, the International Association of Chiefs of Police published a groundbreaking guide in 2012 concerning how to interrogate juvenile suspects. In Reducing Risks: An Executive's Guide to Effective Juvenile Interviewing and Interrogation, the LACP emphasizes that "[o]ver the past decade, numerous studies have demonstrated that juveniles are particularly likely to give false information--and even falsely confess--when questioned by law enforcement." (164)

D. THE FATAL INTERACTION OF ADOLESCENCE AND TRAUMA IN THE INTERROGATION ROOM

While sufficient research specifically focused on the interplay of trauma and interrogation is lacking, the current neuroscientific research provides enough information to conclude that childhood trauma undoubtedly will affect the inherently vulnerable youth's performance and resilience in the interrogation room. Indeed, the neurological effects of childhood maltreatment and trauma described above ultimately mean that a child with a history of abuse, neglect, and trauma is likely to suffer from one, and likely more, of the following problems relevant to the interrogation room: lower IQ; (165) impaired cognitive functioning generally, (166) including specific deficits in cognitive processing, concentration, (167) attention, (168) and interpretation of emotion and social cues; (169) heightened reactivity to stress and emotionally charged and situations as well as a diminished ability to restore stability (homeostasis) after a stressful or emotionally charged situation; (170) compromised emotional regulation, resulting in a failure of self-control and a higher probability of poor decision making; (171) impaired memory and recall; (172) and impaired language and social skills. (173)

From a psychological perspective, trauma-specialized psychologist Sandra Bloom summarizes traumatized youth's challenges, some of which stem from the neurological damage described above and some which do not, as follows: "(1) difficulty with maintaining safety in interpersonal relationships largely due to disrupted attachment experiences and the erosion of trust that accompanies such experiences; (2) significant challenges in adequately managing distressing emotions in ways that are not self-destructive, including exercising the capacities for self-discipline, self-control, and willpower; (3) cognitive problems, particularly when stress occurs and the development of essential cortical functions has not gone smoothly; (4) problems with open and direct communication... because they frequently communicate through behavior, not directly, openly, or in words; (5) feelings of helplessness and powerlessness in the face of a world they perceive as unjust and cruel; (6) no clear sense of social responsibility even into adulthood, and their moral development may have been affected by disrupted attachment experiences and inadequate role models; (7) likely experienced significant loss while lacking the capacity to grieve secondary to the emotional management problems; (8) a tendency to repeat the experiences that are a part of their past; and (9) often a lack of hope that the future will be any better than the past, while their emotional and cognitive challenges interfere with the capacity to plan ahead and tolerate delayed gratification." (174)

Each of these impairments have obvious (and not-so-obvious) detrimental consequences for children during interrogation. A police interrogator's goal is to break a suspect down to a point of hopelessness, where he or she believes the benefits of confessing outweigh the costs. This neuroscientific research suggests the deleterious effects of trauma nearly do the job for the police. Indeed, trauma can dramatically impact the interrogation of a youth at every step of the interrogation process.

During phase one--the behavioral analysis phase--a traumatized youth may be more likely to be mischaracterized as guilty. (175) The research shows that traumatized youth may misread social cues and facial expressions and thus have inappropriate emotional reactions to normal interactions. (176) Psychologist Bloom also points out that traumatized youth will have problems with communication and often communicate through behavior rather than words. Since officers are trained to "read" abnormal behaviors as indications of guilt or dishonesty, we can assume that the traumatized youth will often be (mis)"read" by the officer as a lying, guilty person. A determination of guilt often triggers the interrogation, and the interrogation is designed to not end until a confession is obtained. Thus, a mischaracterization of an innocent traumatized youth as guilty sets off a series of events that may seal his fate for arrest.

During phase two--the interrogation--prior trauma will likely exacerbate the vulnerabilities inherent to all youthful suspects and create additional problems unique to traumatized youth. Confrontation is at the heart of the Reid Technique: stress, police-applied pressure, and emotional manipulation are the main steps in the psychological dance of that method of interrogation. The neuroscience and psychology of childhood trauma strongly suggest a traumatized youth will be more easily bulldozed by these tactics.

Perhaps most significantly, the traumatized youth's impaired ability to regulate and appropriately respond to stress will make them much more vulnerable to all of the tactics inherent to phase two. The neuroscientific research, in study after study, indicates that a traumatized youth will exhibit a heightened reactivity to stress and "emotionally charged and social situations," (177) as well as a diminished ability to restore stability (homeostasis) after a stressful or emotionally charged situation. Because interrogations, by design, are highly stressful and anxiety provoking, (178) the impaired ability to manage stress will handicap the traumatized youth throughout the interrogation. The potentially disastrous effect of this hallmark trait of traumatized youth cannot be overstated: in essence, the primary affliction suffered by traumatized youth leaves them defenseless to the primary, and highly effective, tool of interrogation.

First, at the outset, the mere isolation of the suspect alone may cause inordinate stress for a traumatized youth. Then, when the interrogator begins to accuse and refuse to entertain any denials, the suspect will likely be more easily overwhelmed and emotionally activated by the interrogator's confrontational behavior than the average youth. In line with the EEG studies indicating that traumatized children respond maladaptively to angry faces, the suspect may react more extremely to the interrogator's anger and aggressive approach. Bloom points out that traumatized youth, as a general matter, have a difficult time feeling safe in interpersonal interactions. (179) Moreover, depending on the type and source of trauma suffered, the aggressive behavior of an adult interrogator may have a specific triggering effect on a traumatized youth.

As the interrogator ramps up the pressure over the course of the interrogation, as every interrogator is trained to do, a traumatized young suspect will be less capable of thinking clearly or exercising self-control, and they will be susceptible to breaking down more quickly than a non-traumatized youth. A traumatized youth suffering from hyperarousal will have a particularly difficult time maintaining any semblance of calm and any capacity for organized thought or behavior. On the other end of the spectrum, some traumatized youth have a suppressed stress response, which could result in a failure to perceive the danger of the situation and a reduced ability to identify and weigh risks and consequences.

Successfully navigating an interrogation also requires social and emotional skills that a traumatized youth is not likely to possess. The research indicates that stress and emotional activation is likely to make a traumatized youth distractible and less able to concentrate. (180) Thus, the suspect will struggle to pay attention to what the interrogator is doing, resulting in a diminished capacity to understand how he or she is being manipulated. In addition, some traumatized youth have a compromised ability to learn and organize new information. This deficiency will compound the challenge of following along with the mental games played by the interrogator. While it is a challenge for an average youth to comprehend the sophisticated manipulation used in the interrogation room, it will be that much harder for the traumatized youth.

Third, the traumatized youth suspect may be quicker to accept that he has been "caught" for something he did not actually do, and more easily convinced by false evidence ploys, due to impaired cognitive functioning, dissociative tendencies, and memory problems. A traumatized youth who sometimes disassociates or regularly has trouble trusting his or her memory will be more easily persuaded by fabricated evidence. Many trauma victims also experience significant shame and low self-esteem, which may make them more inclined to either believe they committed an illegal act that they did not, or take the fall for something they know they did not do. A trauma victim who does not trust him or herself will cave to police pressure and suggestion more quickly than an average youth.

Victims of childhood trauma who suffer more severe dissociative disorders resulting in blackouts, dissociative amnesia, or even fugue states, may be more prone to giving a coerced-internalized or coerced-persuaded false confession, a rarer type of confession where an innocent suspect comes to believe he or she actually committed a crime that he or she did not commit, internalizes responsibility and guilt for that crime, and sometimes even creates false memories of the crime. (181)

Fourth, hopelessness is the interrogator's goal and a traumatized youth--who may already be questioning whether life is worth living--will invariably be more easily rendered hopeless. (182) Once broken down to hopelessness, themes and false choices offered by the interrogator are likely to be particularly effective on a traumatized young suspect. Many themes suggested in interrogation manuals play on a suspect's need to not be perceived as a bad person, (183) leaving a traumatized youth with low self-esteem as easy prey. Shame may pave the way for the use of many themes by the interrogator, and the eagerness to please exhibited by some trauma victims will make them more likely to agree with the suggested theme.

Fifth, promises of help may be dangerously effective on a traumatized youth. In an interrogation, promises of help frequently come with an admonition that the suspect needs help. A traumatized youth with low self-esteem and shame--who may believe that something is indeed quite wrong with him--could be easily convinced that he needs help. That help is his only hope, and thus he is more likely to roll over and play along with the interrogator's narrative to get that help.

Other common ploys, like the false friend ploy or father figure tactic, (184) are also likely to be especially compelling to the traumatized youth. Like my client I described earlier, a neglected and traumatized young suspect who has had few if any positive support figures in his life, may be easily befriended by a person who offers gifts, compliments, or emotional support. Many neglected and/or traumatized youth may have been desperate for someone to help him, to give him any attention, and thus a particularly easy target. For a child who has been neglected, an offer of food, like the cheeseburger given to my client, may be all it takes to break him. For a child who has been starved for attention and affection, the offer of friendship or a surrogate father may be too tempting to resist. In Brendan Dassey's case, we hear the interrogator tell Brendan "yeah we're cops... but not right now. I'm a father that has a kid your age too. I wanna be here for you. There's nothing I'd like more than come over and give you a hug...." (185) While the offer of a cheeseburger or a hug may initially look like kindness, do not be fooled: it is part and parcel of the manipulation interrogators are trained to exert. (186)

Sixth, the power of suggestion may hold extra force for a traumatized youth. If the youth has memory problems, he may be more than happy to fill in what he assumes are gaps in his memory with details provided by the interrogator. He may be especially inclined to do so in order to hide what he fears are problems with his intellect or memory: a problem he may be in the habit of masking from the world. He will likely be particularly open to facts suggested by the interrogator that make him seem more important than he feels he is. For example, my client was willing to falsely claim association with a neighborhood gang and involvement in a homicide because it meant he was respected and important in his neighborhood.

Seventh, a traumatized youth may be more easily enticed by the "out," or the false choice, offered by an interrogator. As psychologist Bloom explained, traumatized youth frequently have a difficult time with self-control and willpower, and they also have a diminished capacity to plan ahead and tolerate "delayed gratification." These impairments, especially when combined with the emphasis on immediate rewards over long-term consequences common to all youth, will make it much easier for an interrogator to entice a young suspect into saying whatever the interrogator wants them to say in order to end the interrogation.

Finally, a traumatized youth may be even more likely than others to agree to memorialize a confession in writing or on video, regardless of its truth or falsity, because he simply does not grasp the consequences of doing so. Many youth believe if they simply confess, they can bring an interrogation to an end and go home. (187) A traumatized youth may be even more susceptible to this naive belief because of cognitive dysfunction and unsophisticated social awareness.

More generally, all of this is compounded by the fact that the research suggests that a traumatized youth is going to have impaired cognitive functioning, in ways that are unlikely to show up in traditional intelligence testing. Perhaps most significantly, the research shows that childhood trauma impairs the prefrontal cortex--the part of the brain responsible for executive functioning and impulse control--which is already underdeveloped in all adolescents. (188) The developing prefrontal cortex has been central to the United States Supreme Court's jurisprudence decreasing punishments for juveniles because this neurological immaturity has such significant consequences for their functioning, and ultimately their culpability. The fact that the prefrontal cortex is even more debilitated in a traumatized youth should be persuasive to courts: traumatized youth are inevitably going to have even more difficulty than the "normal" youth making rational choices, weighing long-term verses short-term consequences, controlling their impulses, and resisting suggestion.

VIII. INADEQUATE JUDICIAL ANALYSIS OF CHILDHOOD TRAUMA AS A RISK FACTOR FOR INVOLUNTARY AND/OR FALSE CONFESSIONS

Given the widely recognized reality that youth are categorically at heightened risk in the interrogation room and what we now know about the damage that childhood trauma does to a youth's brain and behavior, one can assume that prior trauma will exacerbate a youth's vulnerability and risk in the interrogation room. Since courts are required to consider factors that render a suspect vulnerable during an interrogation, it is logical that a court should consider a juvenile suspect's history of trauma and/or child abuse and neglect when analyzing his or her confession. But, as a general matter, when analyzing a confession, courts routinely fail to acknowledge, much less meaningfully weigh, childhood trauma and its effects on the developing brain and behavior of a juvenile suspect in the interrogation room.

A. TOTALITY OF THE CIRCUMSTANCES TEST FOR VOLUNTARINESS OF A CONFESSION & HEIGHTENED JUDICIAL SCRUTINY OF JUVENILE CONFESSIONS

Courts are the last line of defense available to protect a vulnerable young suspect from conviction due to a coerced and false confession. The due process clause of the Fourteenth Amendment to the United States Constitution bars the use of an involuntary confession against a criminal defendant. (189) A confession is involuntary if it is not "the product of a rational intellect and a free will." (190) Courts employ a totality of the circumstances test to determine whether a statement is involuntary, requiring a weighing of factors relating both to the police conduct and to the traits of the individual suspect. (191) With regard to police conduct, courts consider factors such as the location and length of the interrogation, the number of officers present, whether the suspect was informed of his constitutional rights, whether the suspect was provided food, water, or the opportunity to sleep, whether any force was used, and whether any threats or promises were made by police. (192) With regard to the individual suspect, courts consider factors including the suspect's age, IQ, any mental illness, language abilities, education history, and prior experience with law enforcement. (193)

As its name suggests, the totality of the circumstances test is a vague, amorphous test. (194) There are few factors that, standing alone, will get a confession thrown out as involuntary. Instead, the test requires courts to weigh the objective individual traits of the suspect along with the actions of the police interrogator(s), and a finding of coercive police conduct is required for a court to suppress a confession as involuntary. (195) In other words, even if a court concludes that a juvenile suspect is extremely vulnerable, the court will not hold his or her confession involuntary unless it finds some form of coercion by the police.

While courts are required to consider the age of the suspect, they vary wildly on what such consideration means. J.D.B. is the keystone recent United States Supreme Court case recognizing that youth are uniquely vulnerable in the interrogation room, but there has been a slow, growing judicial recognition of the unique legal and factual issues involved with a youth suspect is interrogated. (196) The proposition that special care is required when questioning youthful suspects is not new but rather a reinvigoration of long-understood principles recognized by the United States Supreme Court decades ago. (197) Nonetheless, all too often, a trial court merely lists the suspect's age as one of the many factors considered, but does not provide any further analysis on how a suspect's young age may have impacted the course and outcome of the interrogation.

A recent appellate decision out of California, however, provides a gold standard opinion illustrating what meaningful heightened judicial scrutiny of a juvenile confession should look like. In re Elias V. involved a 13-year-old boy's confession to inappropriately touching his friend's three-year-old sister. Elias was interrogated for twenty-two minutes by a detective in a small room at school, after being pulled out of class. In addition to the interrogating detective, the principal and a second detective were also present, and a third officer stood outside the closed door. Both detectives were armed with guns. Over the course of the interrogation, the detective fed Elias every detail of the alleged criminal activity. Elias denied touching the three year old girl twelve times, and not a single inculpatory fact came from Elias. Instead, they all originated with the detective. Nonetheless, Elias's defense counsel lost a motion to suppress his confession. The court found Elias's confession voluntary because the interrogation was only twenty minutes, and it was "not intimidating" because the detective was female, she spoke in a calm tone and asked "gentle" questions. (198)

A California appellate court saw things differently, however, and overturned the lower court's decision, reversing Elias's adjudication in full. The appellate court recognized that, in order to assess the voluntariness of a confession from thirteen-year-old Elias, one needs to put themselves in the shoes of the thirteen-year-old and ask how he would perceive the conduct and behavior of the police interrogators. (199) In this way, the age of the suspect colored and informed the judicial analysis of all of the factors considered, even those that initially appear to relate only to the police conduct. (200) As the United States Supreme Court held back in 1948, "[t]hat which may leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens." (201) This judge understood that a court accordingly must view interrogation tactics that may be "normal" for an adult suspect through the eyes of a child--coercion is in the eye of the beholder. For example, the court concluded that "the aggressive, deceptive, and unduly suggestive tactics [the detective] employed would have been particularly intimidating" given that "Elias was a young adolescent" who was not "particularly sophisticated" and "had no prior confrontations with police." The court further concluded that the "use of deceptive techniques [was] significantly more indicative of involuntariness where, as here, the subject is a 13-year-old adolescent." (202) The court understood that a child-sensitive opinion cannot turn upon black and white, tick the box-style analysis of the interrogator's tone of voice or the availability of food or drink; rather, a child-sensitive analysis should consider, line by line, what was said by interrogators and how a child might understand and experience those words. And, essentially the court recognized that conduct not coercive for an adult may be coercive to a child.

B. COURTS ROUTINELY FAIL TO RECOGNIZE THE RELEVANCE OF EVIDENCE OF PRIOR CHILDHOOD TRAUMA TO THE VOLUNTARINESS ANALYSIS OF A JUVENILE CONFESSION

Just as conduct not coercive to an adult may be coercive to a youth, police tactics not coercive to the average youth may be highly coercive to a youth coming into the interrogation room with a history of trauma, neglect, and other maltreatment. Unfortunately, courts routinely fail to recognize that prior trauma is relevant to interrogation and rarely include it as a factor in the totality of the circumstances voluntariness analysis.

Granted, in order for a court to consider a youth's history of trauma, a defense attorney must present evidence of their client's history of childhood trauma and of impairment. In some of the cases below, the defense did present evidence of the trauma, but it is unclear from the opinion whether they adequately explained, through expert testimony or otherwise, the impact and consequences of the trauma and its relevance to the interrogation and confession. In other cases, it is unclear whether the defense presented any trauma evidence, much less expert testimony. That being said, the primary purpose of this article, and its call for improved research specifically focused on childhood trauma and interrogation, is to better educate defense attorneys and arm them with improved, more complete information about the ways in which trauma changes a youth's brain and behavior. The purpose of this section is not to condemn courts or blame the problem wholly on the judges. Recognizing that the information gap regarding the relevance of trauma to children in the interrogation room exists for all of the players in the criminal justice system, and that the defense attorneys are currently part of the problem, this section evaluates how current case law addresses the interaction of trauma and interrogations and confessions.

In their publication surveying the ways that trauma is acknowledged and dealt with at various junctures within our criminal justice system, Feierman and Fine concluded that "[flew published cases address the role of trauma in the voluntariness determination." (203) They cited to a single case--a California state appellate case, People v. Prachter (204)--where a court actually considered trauma as a factor in the totality of the circumstances analysis of the voluntariness of a juvenile defendant's statements to police. (205) In Prachter, a fifteen-year-old suspect was charged with murder, and at trial, a defense expert testified that the suspect had been diagnosed with PTSD. (206) Based on the expert's testimony that "[a]n adolescent who had suffered trauma would operate at a lower level than an adolescent with a normal developing brain," (207) the California state court held that the juvenile's PTSD was relevant to its analysis of the juvenile's inculpatory statements. (208) The court ultimately concluded, however, that the youth's confession was voluntary because: he did not seem stressed, nervous, or emotional; he had prior experience with law enforcement and seemed "street smart;" he did not have trouble in school; he did not ask to speak to this father or another adult; and he did not seem "intimidated by [the interrogators] at all." (209) The court also concluded that the interrogators were conversational in tone rather than overbearing or aggressive. (210) The judge did not, however, consider whether stress, anxiety, emotion, or intimidation might look different on a traumatized teenager than what he would expect, and he did not analyze whether conversation tones that may not appear overbearing or aggressive to an average adult or youth, may be perceived dramatically differently by a traumatized teenager. (211)

As in Prachter, consideration of the effects of childhood abuse, neglect, and trauma has typically been limited to cases where the defendant has been diagnosed with PTSD. (212) For example, in a California federal district case analyzing the voluntariness of a young adult defendant's confession, the court considered the fact that medical professionals concluded that the defendant suffered from PTSD, as well as depression and learning disabilities, at the time of his confession. (213) But, because the court found there was no coercive police conduct, it held the confession to be voluntary, "notwithstanding any mental infirmities he might have suffered at the time of his confession." (214) The court did not, however, question whether police conduct not considered coercive for a "normal" adult defendant may be coercive for youth defendant with a trauma history suffering from PTSD. In another federal case, Hansen v. Johnson, (215) the Southern District of California dismissed a seventeen-year-old defendant's PTSD diagnosis when it affirmed his confession-based conviction. (216) The Hansen court held that the fact that she was "calm and rational throughout the interrogation and... only showed emotion during breaks" proved that PTSD was not relevant to her behavior during interrogation or her ultimate confession. (217) The court failed to appreciate that the prior trauma may have diminished her cognitive functioning in a way that made her both more vulnerable to the coercive pressures of the interrogation and more suggestible. The court should have realized, and the defense should have argued, however, that the emotional reaction one may expect to result from trauma is not a necessary, or even likely, prerequisite to these deficiencies.

Similarly, in State v. Underbill, (218) an Oregon state appellate court avoided meaningful consideration of a defendant's PTSD diagnosis by presuming that flashbacks were the only relevant consequence of PTSD that required the court's attention and analysis. (219) The court ignored the fact that the defendant's PTSD diagnosis, resulting from an extensive history of childhood sexual abuse, could have had a deleterious impact on her ability to withstand the inherent coercive pressures of interrogation. (220) Since the trial court held that there was no "more than a possibility that [the] defendant experienced a flashback to her childhood during the polygraph procedure," it concluded that the defendant's PTSD did not impact her interrogation. (221) But the trial court's conclusion, based on a simplistic understanding of PTSD, completely disregarded the testimony that, in addition to flashbacks, the defendant's PTSD may have caused her to "have difficulty concentrating, difficulty self-advocating, and an increased vulnerability to suggestion," all of which are obviously highly relevant in an interrogation. (222) While an expert forensic psychologist even testified that PTSD could "make [the defendant] more susceptible to suggestion," the appeals court did not address that testimony in its opinion. (223)

As these cases demonstrate, even in cases involving a defendant with a PTSD diagnosis--where evidence of trauma is admitted and considered relevant to analysis of a confession by the court--courts oversimplify the consequences of trauma, and PTSD, and thus fail to meaningfully weigh it as a factor in the totality analysis. What's worse, in some cases where PTSD evidence is admitted for another purpose, some courts have wholly failed to recognize that PTSD can be just as relevant, or even more, to the voluntariness of a confession as it is to other aspects of the case, such as determination of mens rea, and thus do not even include it as a factor in its totality analysis. For example, in an Eighth Circuit case, the Court addressed the appellant's trauma history at length as it related to his sentence of death. (224) But the courts, at both the state and federal levels, utterly failed to consider that this extensive trauma history may have been relevant to the analysis of the voluntariness of his confession, even though the appellant challenged both the voluntariness of his waiver of Miranda rights and of his ultimate confession. (225)

These cases represent a small step in the right direction. At least defense attorneys are sometimes arguing that childhood trauma is relevant to a juvenile confession, some courts are acknowledging that childhood trauma can have lasting significant effects on individuals, and occasionally acknowledging that the consequences of trauma are a relevant factor to be weighed when assessing the voluntariness of a confession. But this jurisprudence is troubling for a number of reasons. First, in every one of these cases, the court ultimately concluded that the confession was voluntary despite some court's purported willingness to consider childhood trauma in its totality of the circumstances analysis. And a defense presentation of evidence both establishing a defendant's prior trauma, and expert testimony explaining why the deleterious effects of trauma are relevant to a defendant's confession, did not change the result. Thus far, the sample size of cases is very small, so no fair conclusions can be drawn. The consistency of the results, however, does suggest that courts are merely paying lip service to a youth's history of trauma, rather than meaningful consideration.

These cases also indicate that some courts may only be willing to consider evidence of childhood trauma as a relevant factor in the totality of the circumstances analysis when a defendant has been formally diagnosed with PTSD and an expert will testify to that diagnosis. This superficially limited perspective on trauma and its consequences is a damning problem. Many victims of childhood trauma do not suffer from PTSD, but rather a spectrum of other disorders and deficiencies, which are no less harmful. (226) Moreover, as a technical matter, courts are already required to consider PTSD in the totality of the circumstances analysis because it is a mental illness, and courts are required to consider any mental illness as a factor. The larger problem here, however, is that courts appear to harbor a stereotype of what trauma looks like. They use the absence of the black and white symptoms that they expect to see as justification for easy dismissal of a trauma-based claim that a confession may not be voluntary.

The bottom line is that courts all too often ignore a confessor's history of childhood trauma and, even when it is considered, the analysis is superficial and wholly inadequate. The cases discussed above show that the narrative desperately needs to be reframed. Even defense teams armed with trauma experts fail to convince courts that trauma is critically relevant to its analysis of whether a defendant's confession was voluntary and reliable. Courts already deal with evidence of trauma in other contexts, such as the presentation of mitigation evidence at a sentencing hearing, so this is not asking something novel of the judicial system. (227) Rather, it is an extension of a current practice to a different legal question. The heart of the problem, though, may not lie at the fault of the judges, but instead with the same void of research and information I confronted when litigating on behalf of my client.

C. THE UNITED STATES SUPREME COURT'S EMBRACE OF ADOLESCENT NEUROSCIENCE IN JUVENILE SENTENCING OPENED THE DOOR FOR ADVOCACY FOR A TRAUMA-INFORMED VOLUNTARINESS TEST FOR JUVENILE CONFESSIONS

One strategy for more effectively engaging the courts is to bolster the current psychological research on prior trauma as a risk factor for coerced and false confessions with neuroscientific research regarding the effects of trauma on the developing brain of a child. Starting in 2005 with its decision in Roper v. Simmons, banning the death penalty for juvenile offenders, the United States Supreme Court has been persuaded by neuroscientific research on the differences between the adolescent and adult brain that youth are different from adults in legally significant ways. (228)

In Roper, the Court relied "partly on common sense and partly on research showing that the brain is still developing during adolescence," identifying three critical general differences between juveniles and adults, to conclude that "juvenile offenders cannot with reliability be classified among the worst offenders" deserving of the death penalty. (229) Justice Kennedy noted that: (1) as "any parent knows," youth have '"a lack of maturity and an underdeveloped sense of responsibility[;]" (230) (2) "juveniles are more vulnerable or susceptible to negative influences and outside pressures[;]" and (3) "the character of a juvenile is not as well formed as that of an adult" and traits are thus "more transitory, less fixed." (231) Despite this common knowledge, the Court had long declined to overturn the juvenile death penalty, up and until it was presented with the neuroscientific research providing biological reasons why juveniles think and act so differently than adults. In this way, adolescent neuroscience was the game-changer for the United States Supreme Court.

The Court then carried the neuroscience and the lessons learned in Roper into other realms of juvenile justice. In Graham v. Florida, Miller v. Alabama, and Montgomery v. Louisiana, the Court relied on the same (albeit updated and expanded) body of neuroscientific research when concluding that juveniles cannot constitutionally be subjected to mandatory life without parole sentences. (232) And, in J.D.B., the Court extended the same logic and principles to juveniles in the interrogation context, holding, in essence, that the determination of whether a juvenile suspect is in custody must be based on the perception and comprehension of a reasonable juvenile. (233)

It is thus indisputable that our highest Court recognizes the validity and import of neuroscientific findings regarding the developing brains of youth and has embraced this body of research as constitutionally relevant. The Court has thus opened the door for advocates to argue the relevance of both the neuroscience of adolescence, as well as arguably the neuroscience of childhood trauma, to other criminal and constitutional issues, such as the voluntariness of a juvenile confession. (234) We should accept this invitation.

D. COURTS SHOULD INCLUDE CHILDHOOD TRAUMA AS A FACTOR IN THE VOLUNTARINESS ANALYSIS

Courts are required to consider characteristics of an individual suspect that may make him or her more vulnerable to police tactics when analyzing the voluntariness of a confession. (235) As the ample neuroscientific evidence makes clear, it is indisputable that a history of childhood trauma will render youth at even greater risk of making an involuntary or false confession. Following the command of the United States Supreme Court, states across the country, either via legislation or judicial rulings, have applied the neuroscience-based Eighth Amendment principles embraced by the Court in Roper, Graham, Miller, and Montgomery and are sentencing juveniles very differently than adults. It makes little sense for courts to accept neuroscientific evidence of youth in one regard, and wholly ignore it another. Thus, relying on the neuroscientific evidence, as well as the social science, courts should acknowledge that childhood trauma renders a youthful suspect more vulnerable to police interrogation tactics and include that history of trauma as a factor in its voluntariness analysis. Ultimately courts should ask whether the police conduct in question would be perceived as coercive to a youth with a trauma history. The definitive task for the court thus will be to view the juvenile suspect's behavior in the interrogation room as well as the police conduct through the lens of a traumatized youth.

One may argue that it is unfair to include a history of childhood trauma as a factor in the totality analysis because the police interrogator is unlikely to be aware of this history. Many factors already considered by courts, however, are not necessarily apparent to the police interrogator. For example, courts are required to consider IQ, education history, and mental illness. Each of these characteristics may be identifiable to a perceptive interrogator, but they may not. For example, many intellectually disabled individuals are quite adept at masking their deficits. Thus, a police interrogator may credibly assert he had no way of knowing that the suspect had a low IQ. That is irrelevant, however, to the court's analysis. The question is not whether the officer knew and should have altered his tactics accordingly; the test does not turn upon the knowledge or intent of the interrogating officers. Instead, the question is how did the suspect's individual deficits impact his ability to withstand the pressure of the interrogation? (236)

There is also a colorable argument that trauma is already encompassed in the totality analysis because courts are required to weigh mental illness as a factor. But, as explained above, many traumatized children do not suffer from PTSD, the mental illness typically associated with trauma. (As noted above, developmental trauma disorder has not yet been adopted by the American Psychiatric Association or included in the DSM.) This does not mean their trauma history has a lesser impact on their resilience in the interrogation room. In fact, children who suffer from the most persistent trauma are sometimes the least likely to suffer from PTSD. As Danya Glaser explained, they do not develop PTSD because the trauma has become the norm for them. (237) Thus, the mental illness prong of the totality test is not an acceptable or sufficient stand-in for requiring trauma as a factor. Moreover, even when a defendant has a diagnosis of PTSD, the above overview of case law demonstrates that courts inadequately weigh and consider that mental illness.

A prosecutor is also apt to argue that there is no way to know whether a specific juvenile defendant suffers impairment related to their trauma because individuals experience trauma differently and have unique capacities for resilience. While trauma and related impairments cannot be applied categorically, it is possible to assess the trauma history and consequences for a specific juvenile defendant and effectively present that individualized evidence. It should be sufficient that a defense attorney present credible evidence of the trauma (238) endured by the suspect as well as documentation of impaired functioning. (239) Evidence of impairment could come from a wide variety of sources, including but not limited to, school records showing poor performance, teacher comments regarding social or behavioral problems, heath or child welfare records showing mental health or behavioral problems, as well as interviews with witnesses who have observed the youth's impairments, including family friends, teachers, coaches, etc. It is thus incumbent upon defense attorneys to be trauma-informed, to observe their client and be on the lookout for signs of trauma, to ask all juvenile clients a trauma checklist of questions, to gather records supporting trauma, and to conduct interviews for additional evidence and corroboration of trauma and subsequent impairments.

The fact that we now know that trauma causes physical damage to a youth's developing brain may be a double-edged sword. The neuroscience underscores the serious and potentially enduring nature of the problems that trauma can cause a youth, and begins to provide biological explanations for the functional, psychological, and behavioral consequences of trauma, but it also may inspire an argument that a court should not consider trauma as a factor in the voluntariness totality analysis unless the defense presents neuroscientific evidence of this youth's damaged brain, i.e. neurological testing. This argument misunderstands the significance and applicability of the neuroscience of childhood trauma. While the science has come a long way, there is still a great deal not yet understood about the functional implications of the neurological damage caused by trauma. In many, if not most, trauma cases, it will be impossible to pinpoint one neurological source for impairments. (240) It would thus be a mistake to require neuroscientific proof of trauma-related impairments in order to consider the history of trauma as a factor in the totality test. Moreover, impairments and vulnerabilities of suspects are regularly considered by courts without neuroscientific proof. It should be sufficient that defense attorneys present the evidence of trauma and its detrimental effects on a juvenile client via the investigation and presentation described above.

That is not to say that it would be not be appropriate and helpful to present neuroscientific evidence of a juvenile client's impairments to a court where available in an individual client's case. There will be cases where neurological and neuropsychological testing provides compelling evidence of damage and impairment likely caused by trauma. In such cases, defense attorneys could move for the costs of testing to be covered by the courts if necessary.

Finally, one must reckon with the fact that the body of neuroscience proving that youth are different from adults in legally relevant ways applies to an entire category of people and does not turn upon the adversity that an individual youth may have experienced in his or her life. Thus, it can be argued that it is not fair to compare the neuroscience of youth to the neuroscience of trauma, or to ask courts to treat these bodies of research similarly. Fair point. But the neuroscientific research indicates that the impact of trauma on the developing brain of youth is so common and sweeping that, where there is evidence that a juvenile suspect has experienced childhood trauma, impairment should be presumed, and that the specific origin and/or form of that impairment should not be critical.

An alternative approach addressing some of these potential counter-arguments is that courts could apply a presumption of trauma to all youth who interact with the criminal justice system, and thus incorporate trauma into the youth factor of the totality analysis. This follows from Samantha Buckingham's proposal that a juvenile be presumed to have a history of trauma whenever he or she comes into conflict with law enforcement and the criminal justice system. (241) This would address the issue of neuroscience regarding a class of people verses an individual, as well as the concern about a police interrogator's ability to evaluate the functioning of the young suspect in the room. This article takes no position on Buckingham's macro-level proposal, other than to note it is one possible answer to this counterargument.

It would make sense, however, in cases where the defense has presented credible evidence of prior trauma, to include a presumption that trauma decreased the juvenile suspect's ability to withstand the pressures of interrogation, and a requirement that the potential coerciveness of the police interrogators' conduct must be evaluated through the lens of a traumatized youth. Such a presumption aligns with the brain and social science already in existence, courts' increasing acceptance of neuroscience as legally relevant, and the well-established fact that special care is due to juveniles in the interrogation room, generally, but most certainly, when that youth comes to interrogation room cognitively damaged. This could include a requirement that, where the police interrogators had reason to believe the juvenile suspect had experienced childhood trauma, that they must exercise additional care. It is beyond the scope of this article to determine what that additional care would look like, but it could include a series of questions to determine the youth's competency to comprehend and waive Miranda, or a requirement that an interested adult or attorney be contacted before the traumatized youth be questioned.

In any event, at a minimum, the prevalence of childhood trauma among youth who are interrogated by police, and the great likelihood that trauma detrimentally impacted their functioning, underscores the mandate for interrogators to treat all youth with special care in the interrogation room.

IX. CONCLUSION

The lurking presence of childhood trauma which undoubtedly infects so many juvenile interrogations across our country must be dragged out of the shadows and put under the spotlight for rigorous examination. Given the prevalence of trauma among juveniles in our justice system, and what we now know about how that trauma harms their brain and cognitive functioning, our judicial system, our society, and especially our youth cannot afford for us to ignore this reality any longer.

The juvenile defense community, however, will remain handicapped in its ability to educate the bench and reframe the narrative of how trauma impacts our juvenile clients until armed with consolidated, focused interdisciplinary research explaining how and why childhood maltreatment and trauma is a proven risk factor for coerced and false confessions. Further brain-based research is necessary that moves beyond the general conclusions regarding the neurological impacts of trauma and hones in on how those deficiencies play out in the interrogation room. Psychological research like Gudjonsson's on Icelandic and European populations must be conducted here in the United States to confirm the universality of his findings, and specifically, its applicability to the United States' juvenile justice population. Most importantly, the developmental psychologists, social psychologists, and neuroscientists must make connections between these important and clearly relevant sources of research and knowledge. (242) Otherwise, courts may continue to either ignore childhood trauma, or operate under a superficially simplistic construct of trauma and its consequences for a youth when analyzing a traumatized youth's confession.

The ultimate goal is thus to arm advocates with focused, interdisciplinary, corroborated research showing that the neurological and psychological effects of trauma on a youth diminish his or her ability to withstand the inherent pressures of police interrogation. This articles places particular emphasis on the neuroscientific research because of the United States Supreme Court's recognition of the neuroscience regarding adolescent development and embrace of its constitutional relevance in the juvenile justice context. There is no reason that the judicial recognition of neuroscience of juvenile brains should stop with issues of sentencing and punishment. Courts should not be permitted to turn a blind eye to the well-documented and established science demonstrating that trauma hinders brain development and impairs cognitive functioning. Now that it is scientifically established that childhood maltreatment, neglect, and trauma alters the brains of youth in significant negative ways, courts should consider this neuroscience in their constitutional analysis of confessions from juveniles who have a proven history of trauma.

The time is ripe for advocates to tackle this issue. The research already in existence should motivate courts to expand their voluntariness analysis to include a history of childhood trauma as a factor. But waves of further scientific research will help accelerate a jurisprudential shift wherein childhood trauma gets long overdue recognition as a significant hidden player in the interrogation room that we intuitively already know it to be.

MEGAN GLYNN CRANE ([DAGGER])

([dagger]) Megan Crane is the Co-Director of the Center on Wrongful Convictions of Youth (CWCY) at Northwestern Pritzker School of Law. The CWCY is supported by Grant No. 2017-DC-BX-0024 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Department of Justice's Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, and the SMART Office. Points of view or opinions in this document are those of the author and do not necessarily represent the official position or policies of the United States Department of Justice.

Crane represents individuals who were wrongfully convicted for crimes when they were children or teenagers, with a particular focus on cases where the youth involuntarily confessed. As amicus curiae counsel, Crane and her colleagues also regularly support litigation of juvenile coerced and false confession cases, as well as other juvenile justices issues across the country, including in the U.S. Supreme Court. Before joining CWCY, Crane represented individuals sentenced to death in California. In 2013, Crane was honored as a California Attorney of the Year for her work to exonerate George Souliotes, a man wrongfully convicted of arson and triple murder who was sentenced to life without parole.

(1.) This article uses the term "childhood trauma" to broadly refer to a youth's experience of multiple, chronic, and prolonged developmentally adverse events, including abuse, neglect, and other forms of extreme stress or trauma. See infra Section III (explaining this term in more detail and how it is used throughout this article).

(2.) Making a Murderer (Netflix Dec. 18,2015).

(3.) Dassey v. Dittman, 201 F.Supp.3d 963, 1006 (E.D. Wis. 2016).

(4.) Dassey v. Dittman, 860 F.3d 933 (7th Cir. 2017).

(5.) Unfortunately, Brendan Dassey currently remains incarcerated and his future in question because the Seventh Circuit, in a two to one decision, granted en banc review on August 4, 2017.

(6.) Lisa Provence, 13 Years Later: Robert Davis' New Life as a Free Man, C-VLLLE (February 24, 2016 7:00 am), http://www.c-ville.com/13-years-later-robert-davis-new-life-free-man/#.WRShCxPyvL8; Dateline: In the Shadow of Justice: The Interrogation (NBC television broadcast Feb. 14, 2016), http://www.nbcnews.com/dateline/video/full-episode-the-interrogation-628156483525.

(7.) Provence, supra note 6.

(8.) Gisli H. Gudjonsson et al., Custodial interrogation: What are the Background Factors Associated With Claims of False Confession to Police?, 18 J. FORENSIC PSYCHIATRY & PSYCHOL. 266, 267-68 (2007) [Hereinafter Gudjonsson et al., Custodial interrogation].

(9.) Id.

(10.) See Roper v. Simmons, 543 U.S. 551, 569-70 (2005) (concluding that neuroscientific studies confirm that juveniles have "a lack of maturity and an underdeveloped sense of responsibility,... are more vulnerable or susceptible to negative influences and outside pressures," and their characters are "not well formed"); Graham v. Florida, 560 U.S. 48, 68-69 (reaffirming the Court's conclusions regarding the neuroscience of juveniles in Roper, and observing that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds"); Miller v. Alabama, 567 U.S. 460, 471-72 (reaffirming Roper and Graham, particularly the holding that as neurological development occurs for the juvenile offender, "his deficiencies will be reformed") (internal citations omitted).

(11.) See infra Section VIII.C. (summarizing this U.S. Supreme Court jurisprudence).

(12.) See, e.g., Anya Kamenetz, How to Apply the Brain Science of Resilience To The Classroom, NPR (June 12, 2017), http://www.npr.org/sections/ed/2017/06/12/530893427/how-to-apply-the-brain-science-of-resilience-to-the-classroom. Dr. Pamela Cantor explains that "[a]dversity has a biological impact on children's development through the mechanisms of stress.... Cortisol [the hormone released when a person is under stress] is toxic to the developing brain and immune system. It impacts the development of the architecture of the brain...." Id.

(13.) See infra Section VIII.A. (detailing the totality of the circumstances voluntariness analysis conducted by courts).

(14.) See infra Section VII. A history of childhood trauma is arguably also relevant to the analysis of an adult confession because the neurological impact of maltreatment, neglect, and trauma often endure into adulthood. But this article is focuses solely on juvenile interrogation and confessions and how the effects of trauma interact with the developmental vulnerabilities of all youth.

(15.) See Crime and the Adolescent Brain, N. Y. TIMES (Mar. 11, 2017), https://www.nytimes.com/2017/03/11/opinion/sunday/crime-and-the-adolescent-brain.htrnl?smid=fb-share&_r=1 (describing the U.S. Supreme Court's embrace of "research showing that the brain is still developing during adolescence, making young people especially vulnerable to impulsive behaviors" in its 2005 ruling overturning the juvenile death penalty; and explaining the trickle-down effect of this science and related jurisprudence resulting in many states passing reforms that keep youth in juvenile courts, rather than adult courts) [hereinafter Crime and the Adolescent Brain].

(16.) 81% of false confessors whose cases went to trial were wrongfully convicted. See Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 L. & HUM. BEHAV. 34:3, 6 (2010). This staggering rate of wrongful convictions does not even account for the many false confessors who pled guilty and avoided what they knew--or were advised--was sure to be a losing trial, in exchange for a lesser sentence. Of the 349 DNA exonerees who falsely confessed, 25% pleaded guilty to the crime that DNA now scientifically proves that they did not commit. Guilty Pleas and False Confessions, National Registry of Exonerations, Nov. 14, 2015, available at https://www.law.umich.edu/special/exoneration/Documents/NRE.Guilty.Plea.Article4.pdf (last visited March 3, 2017). See also Why do so Many Innocent People Plead Guilty to Crimes They Didn't Commit?, Innocence Project, www.guiltypleaproblem.org (last visited Oct. 25, 2017). This makes some logical sense because a false guilty plea is really just a specialized form of false confession; many of the same root causes and vulnerabilities of the suspect that contribute to false and coerced confessions, which will be described in detail below in this article, also contribute to false guilty pleas. See Redlich, A.D., Wilford, M.M., & Bushway, S., Understanding Guilty Pleas Through the Lens of Social Science, PSYCHOL., PUB. POL'Y, AND LAW 1 (Sept. 21, 2017), advance online publication, http://dx.doi.org/10.1037/law0000142 ("Just as psychological science has informed our understanding of true and false confessions, a similarly rich scientific base can help to clarify the circumstances under which defendants plead guilty to crimes they did not commit.") (internal citation omitted). See also Redlich, A.D., Yan, S., Norris, R.J., & Bushway, S.D., The Influence of Confessions on Guilty Pleas and Plea Discounts, PSYCHOL., PUB. POL'Y, AND LAW 2, 7-9 (Sept. 21, 2017), advance online publication, http://dx.doi.org/10.1037/law0000144 (in a study of guilty pleas using 2005-2006 case files from two counties in New York state, 97% to 100% of partial and full confessors pled guilty).

(17.) See infra section VII.B (discussion police interrogation tactics like the ones described above, commonly known as "false friend" ploys).

(18.) See Section VI, infra, for an overview of this body of research.

(19.) See Section V, infra.

(20.) Bessel A. van der Kolk, Developmental Trauma Disorder, 35:5 PSYCHIATRIC ANNALS 401, 40 (May 2005).

(21.) Id. (citations omitted).

(22.) Kristine Buffmgton et al., Ten Things Every Juvenile Court Judge Should Know About Trauma and Delinquency, THE NAT'L CHILD TRAUMATIC STRESS NETWORK (2010), http://www.ncjfcj.org/sites/defaultyfiles/trauma%20bulletin_0.pdf (last visited Feb. 28, 2017), at 3.

(23.) Danya Glaser, Child Abuse and Neglect and the Brain--A Review, 41 J. OF CHILD PSYCHOL. & PSYCHIATRY & ALLIED DISCIPLINES 97, 106 (2000).

(24.) van der Kolk, supra note 20, at 406 (citing AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STAT. MANUAL OF MENTAL DISORDERS 424-29 (4th ed. 1994)). Note that, while the DSM-V, published in 2013, included a new developmental subtype of PTSD for children six years of age and under, the criterion for the underlying traumatic event remained essentially the same. See AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STAT. MANUAL OF MENTAL DISORDERS 271-74 (5th ed. 2013) (discussing posttraumatic stress disorder for children six years and younger).

(25.) van der Kolk, supra note 20, at 401.

(26.) Id. at 402. See also Adverse Childhood Experiences (ACEs), CTRS. FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/violenceprevention/acestudy/ (last visited Sept. 20, 2017) (listing various studies on adverse childhood experiences).

(27.) van der Kolk, supra note 20. at 402.

(28.) Julian D. Ford et al., Complex Trauma and Aggression in Secure Juvenile Justice Settings, 39 CRIM. JUST. BEHAV. 694, 697 (2012) (citations omitted).

(29.) Karen M. Abram et al., PTSD, Trauma, and Comorbid Psychiatric Disorders in Detained Youth, OFF. OF JUV. JUST. & DELINQ. PREVENTION 4, 6 (2013), https://www.ojjdp.gov/pubs/239603.pdf.

(30.) See Erica J. Adams, Healing Invisible Wounds: Why Investing in Trauma-Informed Care for Children Makes Sense, JUST. POLICY INST. (July 7, 2010) (citations omitted), http://www.justicepolicy.org/images/upload/10-07_REP_HealingInvisibleWounds_JJ-PS.pdf (between 75%-93% of children entering the juvenile justice system report that they have experienced at least one traumatic event prior to incarceration); Abram et al., supra note 29, at 6 (citations omitted).

(31.) Cally Sprague, Judges and Child Trauma: Findings from the National Child Traumatic Stress Network/National Council of Juvenile and Family Court Judges Focus Groups, NAT'L CHILD TRAUMATIC STRESS NETWORK (2008) (citations omitted), http://www.nctsn.org/sites/default/files/assets/pdfs/judicialbrief.pdf; Jessica Feierman & Lauren Fine, Trauma and Resilience: A new look at legal advocacy for youth in the juvenile justice and child welfare systems, Juv. L. CTR., 4 (2014), http://jlc.org/sites/default/files/publication_pdfs/Juvenile%20Law%20Center%20-%20Trauma%20and%20Resilience%20%20Legal%20Advocacy%20for%20Youth%20in%20Juvenile%20Justice%20and%20Child%20Welfare%20Systems.pdf.

(32.) Carly B. Dierkhising et al., Trauma Histories Among Justice-Involved Youth: Findings from the National Child Traumatic Stress Network, EUROPEAN JOURNAL OF PSYCHOTRAUMATOLOGY, 1 (2013) (citing K.M. Abram et al., Posttraumatic Stress Disorder and Trauma in Youth in Juvenile Detention, ARCHIVES OF GENERAL PSYCHIATRY, 61, 403-10 (2004)).

(33.) Ford et al., supra note 28, at 715. "Polyvictimization refers to having experienced multiple victimizations such as sexual abuse, physical abuse, bullying, and exposure to family violence. The definition emphasizes experiencing different kinds of victimization, rather than multiple episodes of the same kind of victimization." Office of Juvenile Justice and Delinquency Prevention, Trauma-Informed Care for Children Exposed to Violence, Tips for Staff and Advocates Working with Children: Polyvictimization, https://www.ojjdp.gov/programs/safestart/TipSheetFor_Polyvictimization.pdf (last visited Oct. 25, 2017).

(34.) See generally Health Disparities & Public Policy, Nw. MED. FEINBERG SCH. OF MED.: DEP'T OF PSYCHIATRY & BEHAV. SCI., http://psychiatry.northwestern.edu/research/health-disparities/ (last visited Sept. 20, 2017) (describing its Northwestern Juvenile Project); Abram et al., supra note 29 (discussing further studies on juvenile justice).

(35.) Jessica Feierman & Lauren Fine, Trauma & Resilience: A New Look at Legal Advocacy for Youth in the Juvenile Justice & Child Welfare Systems, JUVENILE LAW CTR., 1 (2014), http://www.jlc.org/resources/publications/trauma-and-resilience (focusing "on legal strategies advocates can use in court, and the state and local policies needed to support these strategies").

(36.) Samantha Buckingham, Trauma Informed Juvenile Justice, 53 AM. CRIM. L. REV. 641 (2016).

(37.) Id. at 678.

(38.) Id. See also Buffington et al., supra note 22.

(39.) Feierman & Fine, supra note 35, at 26.

(40.) Id.

(41.) Buckingham, supra note 36, at 669-70.

(42.) Lorie Hood, Protecting Our Most Vulnerable: How Youth and Trauma Interact to Increase the Risk of False Confessions, A.B.A. SEC. OF C. R. & SOC. JUST., http://www.americanbar.org/content/dam/aba/administrative/crsj/Cornmittee%20Files/traumaandfalseconfessions_blogpost.authcheckdam.pdf (last visited Apr. 18, 2017). Interestingly, Hood further suggested that that "highly intelligent or highly sensitive... juveniles may be at a higher risk for compromises in their brains due to trauma." Id.

(43.) Id.

(44.) Gudjonsson developed the Gudjonsson Suggestibility Scale ("GSS"), a psychological test that measures suggestibility, was the first test developed specifically for interrogative events. G.H. Gudjonsson, A New Scale of Interrogative Suggestibility, 5 PERSONALITY AND INDIVIDUAL DIFFERENCES 303, 303-14 (1984).

(45.) See Gisli H. Gudjonsson et al., Custodial Interrogation: What are the Background Factors Associated with Claims of False Confession to Police?, 18 J. FORENSIC PSYCHIATRY & PSYCHOLOGY 266, 274 (2007) (noting that the study was "unique in that it is the first to investigate the direct association between serious adverse life events and claims of having made a false confession to the police").

(46.) Id. at 267.

(47.) Id. at 267-68.

(48.) Id. at 266; see also Allison D. Redlich & Saul M. Kassin, Police Interrogation and False Confessions: The Inherent Risk of Youth, in CHILDREN AS VICTIMS, WITNESSES, AND OFFENDERS: PSYCHOLOGICAL SCIENCE AND THE LAW 280 (Bette L. Bottoms et al. eds., 2009) (describing Gudjonsson's work indicating that "multiple past victimizations... predicted increases in self-reported false confession among Icelandic youth).

(49.) Gudjonsson et al., Custodial interrogation, supra note 8, at 272.

(50.) Id. at 273.

(51.) Id. at 270.

(52.) Id.

(53.) Id.

(54.) Gisli H. Gudjonsson et al., Interrogation and false confessions among adolescents in seven European countries. What background and psychological variables best discriminate between false confessors and non-false confessors?, 15 PSYCHOL., CRIME & L. 711, 712 (2009).

(55.) Id.

(56.) Id. at 713.

(57.) Id.

(58.) Id. at 725.

(59.) Kim E. Drake & Gisli H. Gudjonsson et al., An Investigation Into the Relationship Between the Reported Experience of Negative Life Events, Trait Stress-Sensitivity and False Confessions Among Further Education Students in Iceland, 81 PERSONALITY AND INDIVIDUAL DIFFERENCES 135, 136 (2015).

(60.) Id.

(61.) Id. at 137-38.

(62.) Id. at 138-39.

(63.) At the outset of this section on neuroscience, I want to recognize my limitations as an attorney without scientific training. My comprehension of the research outlined in this section will certainly not be as deep or nuanced as that of a trained neuroscientist. The goal of this section is only to make clear that current well-established neuroscientific research leaves no doubt that child maltreatment, neglect, and trauma impacts a developing brain. I welcome and encourage researchers to clarify and further explain the current research, and its potential implications for the legal field, and for the interrogation setting in particular.

(64.) Martin H. Teicher, Scars That Won't Heal: The Neurobiology of Child Abuse, SCI. AM., March 2002, at 70.

(65.) van der Kolk, supra note 20, at 404-07.

(66.) See Glaser, supra note 23, at 110 ("[t]here is considerable evidence for changes in brain function in association with child abuse and neglect."); id. at 102 (summarizing the psychological research on the impact of child abuse and neglect, and concluding "[i]t is now increasingly possible to study simultaneously the neurobiological processes accompanying or underlying observed behaviour.... enabling the apparent mind-brain dichotomy to be bridged."). See also Deborah A. Weber & Cecil R. Reynolds, Clinical Perspectives on Neurobiological Effects of Psychological Trauma, 14 NEUROPSYCHOLOGY REV. 115, 116 (2004) ("It was only within the decade of the 1990s that the evolution and rapid discoveries of the neurosciences have enabled us to address questions.... [such as] the physical effects of psychological trauma on the developing brain.").

(67.) See, e.g., Teicher, supra note 64, at 68-70 ("Because childhood abuse occurs during the critical formative time when the brain is being physically sculpted by experience, the impact of severe stress can leave an indelible imprint on its structure and function. Such abuse, it seems, induces a cascade of molecular and neurobiological effects that irreversibly alter neural development."). See also Glaser, supra note 23, at 110-11 (examining impairments of the developing brain attributable to, or caused by, abuse and neglect).

(68.) Laurence Steinberg & Elizabeth Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009, 1013 (2003).

(69.) See Elizabeth R. Sowell et al., In Vivo Evidence For Post-Adolescent Brain Maturation In Frontal And Striatal Regions, 2 NATURE NEUROSCIENCE 10, 10 (1999) (stating the frontal lobe does not mature until the early twenties, and far more change occurs during adolescence than any other stage of life). See also L. Steinberg, Cognitive and Affective Development in Adolescence, 9 TRENDS IN COGNITIVE SCIENCES 69, 69-74 (2005); L. Steinberg, Risk Taking in Adolescence: New Perspectives from Brain and Behavioral Science, 16 CURRENT DIRECTIONS IN PSYCHOLOGICAL SCIENCE 55, 55-59 (2007).

(70.) See Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 ANNALS N.Y. ACAD. SCI 77, 77 (2006); Laurence Steinberg & Elizabeth Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009, 1013-14 (2003) ("Youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.").

(71.) See Jay N. Giedd, Structural Magnetic Resonance Imaging of the Adolescent Brain, 1021 ANNALS N.Y. ACAD. SCI 77, 77 (2006); Laurence Steinberg & Elizabeth Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009, 1014 (2003) ("Youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage."). See also Reducing Risks: An Executive's Guide to Effective Juvenile Interview and Interrogation, International Association of Chiefs of Police (2012), at 4, available at http://www.theiacp.org/reducingrisks.

(72.) Id.

(73.) Glaser, supra note 23, at 99-100. See also Weber & Reynolds, supra note 66, at 117 ("Children are particularly vulnerable to stress and trauma due to the prolonged period of plasticity in the human brain's development.").

(74.) Glaser, supra note 23, at 101.

(75.) See Teicher, supra note 64, at 75. Teicher initially hypothesized that "early stress was a toxic agent that interfered with the normal, smoothly orchestrated progression of brain development." Id. He subsequently changed his hypothesis to make more evolutionary sense. Id. He now believes that "exposure to early stress generates molecular and neurobiological effects that alter neural development in an adaptive way that prepares the adult brain to survive and reproduce in a dangerous world." Id.

(76.) Glaser, supra note 23, at 101; Bruce D. Perry, Childhood Experience and the Expression of Genetic Potential: What Childhood Neglect Tells Us About Nature and Nurture, 3 BRAIN & MIND 79, 87-88 (2002); Weber & Reynolds, supra note 66, at 116.

(77.) Jack P. Shonkoff & Andrew S. Garner, The Lifelong Effects of Early Childhood Adversity and Toxic Stress, 129 TECH. REP.: AM. ACAD. PEDIATRICS (2012), at 236.

(78.) Weber & Reynolds, supra note 66, at 116. See also Teicher, supra note 64, at 70. While the limbic system develops more quickly than the prefrontal cortex, it is still immature as compared to an adult limbic system.

(79.) Glaser, supra note 23, at 109.

(80.) Complex Trauma in Children and Adolescents, NAT'L CHILD TRAUMATIC STRESS NETWORK: COMPLEX TRAUMA TASK FORCE, 20 (2003), http://www.nctsnet.org/nctsn_assets/pdfs/edu_materials/ComplexTrauma_All.pdf (neglected child at risk for "inadequate development of the capacity to regulate physical and emotional states).

See also Feierman & Fine, supra note 35, at 4; Bloom, S.L., The Impact of Trauma on Development and Well-Being in K.G. Ginsburg & S.B. Kinsman, REACHING TEENS--WISDOM FROM ADOLESCENT MEDICINE 37-38, 45 (2014).

(81.) Id. at 27-28.

(82.) Weber & Reynolds, supra note 66, at 116.

(83.) Id.

(84.) Bloom, S.L., Wise, Z., Lively, J., Almonte, M., Contreras, S., & Ginsburg. K.R., Trauma Informed Practice: Working with Youth Who Have Suffered Adverse Childhood (Or Adolescent) Experiences, in K.G. Ginsburg & S.B. Kinsman, REACHING TEENS--WISDOM FROM ADOLESCENT MEDICINE 37-38(2014), at 37-38.

(85.) Glaser, supra note 23, at 104-05; see also Victor G. Carrion & Shane S. Wong, Can Traumatic Stress Alter the Brain? Understanding the Implications of Early Trauma on Brain Development and Learning, 51 J. OF ADOLESCENT HEALTH 23, 24-26 (2012) (examining the relationship between Cortisol and trauma in adolescents).

(86.) Carrion & Wong, supra note 85, at 24-26.

(87.) Id. at 26; see also Glaser, supra note 23, at 105 (summarizing other studies indicating elevated Cortisol levels interfere with hippocampus activity and thus impair memory function, negatively impact the amygdala, the cingulate gyrus, and the frontal brain region, and cause decreased activity in the left prefrontal cortex); pediatrics at 236.

(88.) Shonkoff & Garner, supra note 77, at 236.

(89.) Glaser, supra note 23, at 107.

(90.) Id.

(91.) Teicher, supra note 64, at 71 (summarizing results of a 1997 Yale study involving a sample of seventeen adult survivors of childhood physical and sexual abuse, as well as confirmatory results from his own subsequent study).

(92.) Shonkoff & Garner, supra note 77, at 236.

(93.) Id.

(94.) Glaser, supra note 23, at 104.

(95.) Id.

(96.) Bloom, supra note 84, 42-43

(97.) Glaser, supra note 23, at 104.

(98.) Id. at 116-118.

(99.) Id.

(100.) Shonkoff & Gamer, supra note 77, at

(101.) Glaser, supra note 23, at 104.

(102.) Id.

(103.) Id. at 108.

(104.) Id.

(105.) Id.

(106.) Id.

(107.) Id.

(108.) Glaser, supra note 23, at 109.

(109.) Id.

(110.) Teicher, supra note 64, 73-74.

(111.) Id. at 74.

(112.) See, e.g., Bloom, supra note 80, at 43.

(113.) Glaser, supra note 23, at 109.

(114.) Id; see also Teicher, supra note 64, at 71.

(115.) Glaser, supra note 23, at 109.

(116.) Id. at 104-05. 109.

(117.) Id. at 109.

(118.) Id.

(119.) Id. at 106. See also Buffington et al., supra note 22, at 4 (highlighting that PTSD is "not a perfect fit for what professionals often see with children and youth who have experienced trauma"' because the PTSD diagnosis was originally developed to be applied to adults); van der Kolk, supra note 20, at 405 (pointing out that PTSD "is not the most common psychiatric diagnosis in children with histories of chronic trauma," and arguing that "[t]he diagnosis of PTSD is not developmentally sensitive and does not adequately describe the effect of exposure to childhood trauma").

(120.) Glaser, supra note 23, at 106. See also Buffington et al., supra note 22, at 4 (observing that "not all youth who are impacted severely by traumatic stress develop PTSD" and that "youth may experience partial symptoms of PTSD, other forms of anxiety or depression, or other significant impairments" that do not satisfy a PTSD diagnosis); van der Kolk, supra note 20, at 405 (observing that abused and traumatized children "experience development delays across a broad spectrum, including cognitive, language, motor, and socialization skills, they tend to display very complex disturbances, with a variety of different, often fluctuating, presentations.").

(121.) van der Kolk, supra note 20, at 406. Note that Dr. van der Kolk's diagnosis was proposed before the publication of the most recent DSM, the DSM-V. While the DSM-V does include a new PTSD diagnosis for children six years old and under, it does not include a developmental trauma disorder like that suggested by van der Kolk.

(122.) van der Kolk, supra note 20, at 406.

(123.) A significant portion of the content in this section is reprinted from an article that I co-authored with Laura Nirider and Steven Drizin in 2016 with permission of the American Bar Association.

(124.) False Confessions or Admissions, THE INNOCENCE PROJECT, https://www.innocenceproject.org/causes/false-confessions-admissions/(last visited Sept. 20, 2017).

(125.) NAT'L REGISTRY OF EXONERATIONS, https://www.law.umich.edu/special/exoneration/Pages/about.aspx (follow "Using the Registry;" then click "Browse Cases" and filter "Contributing Factors Display" by selecting "False Confession") (last visited Oct. 17, 2017).

(126.) See, e.g., Joshua A. Tepfer et al., Arresting Development: Convictions of Innocent Youth, 62 Rutgers L. Rev. 887, 904 (2010).

(127.) Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 945 (2004).

(128.) Samuel R. Gross et al., Exonerations in the United States, 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 553 (2005).

(129.) Allison D. Redlich & Gail S. Goodman, Taking Responsibility For an Act Not Committed: Influence of Age and Suggestibility, 27 L. & HUM. BEHAV. 141, 150-51 (2003).

(130.) See FRED E. INBAU & JOHN E. REID ET AL., CRIMINAL INTERROGATIONS AND CONFESSIONS (5th ed. 2013). See also Company Information, JOHN E. REID & ASSOCS., INC., http://www.reid.com/r_about.html (last visited Sept. 18, 2017) (stating that "[f]he Reid Technique of Interviewing and Interrogation is now the most widely used approach to question subjects in the world" and listing their many clients); JAMES L. TRAINUM, HOW THE POLICE GENERATE FALSE CONFESSIONS: AN INSIDE LOOK AT THE INTERROGATION ROOM, 47, 83 (2016).

(131.) Even Reid itself cautions that it should only be used after the police are certain that the suspect is responsible for committing the crime being investigated. Inbau & Reid et al., supra note 130, at 187. See also Kassin et al., supra note 16, at 7; TRAINUM, supra note 130, at 85.

(132.) Kassin et al., supra note 16, at 17-18.

(133.) TRAINUM, supra note 130, at 24, 84-85.

(134.) Id. at 85.

(135.) Id. at 72.

(136.) Id. at 25.

(137.) Kassin et al., supra note 16, at 6 (citing Vrij, A., Detecting lies and deceit: Pitfalls and opportunities. Chichester, England: Wiley). See also Christian Meissner & Saul M. Kassin, "He's Guilty!": Investigator Bias in Judgments of Truth and Deception, 26 L. & HUM. BEHAV. 469, 470 (2002) (citing and summarizing studies).

(138.) Inbau & Reid et al., supra note 130.

(139.) TRAINUM, supra note 130, at 84.

(140.) Inbau & Reid et al., supra note 130, at 191. See also TRAINUM, supra note 130, at 86.

(141.) See Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 Denv. U. L. Rev. 979,990 (1997). See also TRAINUM, supra note 130, at 87.

(142.) Inbau & Reid et al., supra note 130, at 191, 193. See also TRAINUM, supra note 130, at 87.

(143.) Inbau & Reid et al., supra note 130, at 191.

(144.) Id

(145.) Kassin et al., supra note 16, at 27-28. See also TRAINUM, supra note 130, at 88, 109-10.

(146.) Inbau & Reid et al., supra note 130, at 5. See also TRAINUM, supra note 130, at 84-85.

(147.) Ofshe & Leo, supra note 141, at 990, 999. See also Inbau & Reid et al., supra note 130, at 196; TRAINUM, supra note 130, at 108-09 (interrogators "manipulate the suspect's knowledge of their situation, creating the perception that it is in the suspect's best interest (even if only temporarily) to tell the investigator what they want to hear.").

(148.) Drizin & Leo, supra note 127, at 916. See also Inbau & Reid et al., supra note 130, at 202; TRAINUM, supra note 130, at 88-89.

(149.) Making a Murderer (Netflix Dec. 18, 2015).

(150.) 237 Cal. App. 4th 568, 574, 585.

(151.) Ofshe & Leo, supra note 141, at 991-92. See also Inbau & Reid et al., supra note 130, at 310-321;, TRAINUM, supra note 130, at 91-2.

(152.) TRAINUM, supra note 130, at 126-28.

(153.) Laura H. Nirider, Joshua A. Tepfer, and Steven A. Drizin, Combating Contamination in Confession Cases, 79 U. CHICAGO L. REV. 837, 847 (2012); Ofshe & Leo, supra note 141, at 992.

(154.) Id. at 847.

(155.) Id.

(156.) 384 U.S. 436 (1966).

(157.) Id. at 448-57. The Court decided Miranda a mere four years after the first Reid manual of interrogation was published. The Reid Technique, as we know it today, would not be fully realized until Reid published the third edition of the manual in 1986, but, in Miranda, the Court recognized and warned against "the psychological coercion at the heart of the Reid Technique." Alan Hirsch, Going to the Source: The "New" Reid Method and False Confessions, 11 OHIO ST. J. CRIM. L. 803, 804 (2014).

(158.) 556 U.S. 303, 321 (2009) (emphasis added).

(159.) Press Release, Wicklander-Zulawski & Assocs, Inc., Wicklander-Zulawski Discontinues Reid Method Instruction After More Than 30 Years (Mar. 6, 2017), https://www.w-z.com/portfolio/press-release/?utm_source=Farewell+Reid+-+03.2017&utm_campaign=Farewell+Reid++03.2017&utm_medium=email).

(160.) Id.; see also Eli Hager, The Seismic Change in Police Interrogations, THE MARSHALL PROJECT (Mar. 7, 2017), https://www.themarshallproject.org/2017/03/07/the-seismic-change-in-police-interrogations?utm_medium=email&utm_campaign=newsletter&utm_source=opening-statement&utm_term=newsletter-20170308-708#.LKB6BUwbs (citing statements from Wicklander-Zulawski and John E. Reid representatives on the announcement).

(161.) See Jessica R. Meyer & N. Dickon Reppucci, Police Practices and Perceptions Regarding Juvenile Interrogation and Interrogative Suggestibility, 25 BEHAV. SC. L. 1, 1-24 (2007)(reporting results of a 2014 survey of law enforcement showing that almost all officers used the same techniques on minors as on adults); Allison D. Redlich, The Susceptibility of Juveniles to False Confessions and False Guilty Pleas, 62 RUTGERS L. REV. 943, 952 (2010) (examining the effect damaging interrogation techniques may also have on juvenile guilty pleas); Lauren Kirchner, How Can We Prevent False Confessions from Kids and Teenagers?, Pacific Standard. June 17, 2014 (concluding from recent University of Virginia study that "nearly all of the officers surveyed reported frequently using the same interrogation techniques on minors as on adults"). See also N. Dickon Reppucci et al., Custodial Interrogation of Juveniles: Results of a National Survey of Police, in POLICE INTERROGATIONS AND FALSE CONFESSIONS: CURRENT RESEARCH, PRACTICE, AND POLICY RECOMMENDATIONS 67 (G. Daniel Lassiter & Christian A. Meissner eds., 2010) (demonstrating that surveyed officers generally recognize that juveniles are more vulnerable or suggestible, but in practice do not alter their interrogation methods when interrogating a young suspect to account for the differences).

(162.) 564 U.S. 261, 269(2011).

(163.) Investigator Tips, JOHN E. REID & ASSOCS., INC., http://www.reid.com/educational_info/r_tips.html?serial=20160101-1 (last visited Sept. 18, 2017). Reid explains on its website that "[i]t is well accepted that juvenile suspects are more susceptible to falsely confess than adults," and warns that "every interrogator must exercise extreme caution and care when interviewing or interrogating a juvenile." Id.

(164.) Reducing Risks: An Executive's Guide to Effective Juvenile Interview and Interrogation, INT'L ASS'N OF CHIEFS OF POLICE, 1 (2012), http://www.theiacp.org/reducingrisks.

(165.) Glaser, supra note 23, at 109.

(166.) Id.

(167.) See Weber & Reynolds, supra note 66, at 115 (citing hyperactivity as a developmental disorder related to neglect and caused by abnormalities in the brain). See also Glaser, supra note 23, at 108.

(168.) See Weber & Reynolds, supra note 66, at 115 (citing hyperactivity and attention issues as developmental disorders related to neglect and caused by abnormalities in the brain).

(169.) Feierman & Fine, supra note 35, at 206.

(170.) Kathryn Monahan et al., Juvenile Justice Policy and Practice: A Developmental Perspective, 44 CRIME AND JUST. 577, 588 (2015) (concluding that "changes in refinement of competing brain circuitry" cause adolescents to be "more reactive in emotionally charged and social situations than adults"). See also Weber & Reynolds, supra note 66, at 116-18; Complex Trauma in Children and Adolescents, NAT'L CHILD TRAUMATIC STRESS NETWORK: COMPLEX TRAUMA TASK FORCE, 8 (2003), http://www.nctsnet.org/nctsn_assets/pdfs/edu_materials/ComplexTrauma_All.pdf (neglected child at risk for "inadequate development of the capacity to regulate physical and emotional states).

(171.) Id.

(172.) See, e.g., Carrion & Wong, supra note 85, at 24-26.

(173.) See Weber & Reynolds, supra note 66, at 115 (citing motor delays and language issues as developmental disorders related to neglect and caused by abnormalities in the brain).

(174.) Bloom, S.L., The Sanctuary Model: Changing Habits and Transforming the Organizational Operating System, in J.D. Ford & C.A. Cortois (Eds.), TREATING COMPLEX TRAUMATIC STRESS DISORDERS IN CHILDHOOD AND ADOLESCENCE (New York: Guildford Press), at 277-78.

(175.) See supra Section VII.A (detailing the processes and research involved with Phase One of the Reid technique).

(176.) See Feierman & Fine, supra note 35, at 3 ("Children and youth who have been exposed to significant trauma... may have trouble assessing and interpreting another individual's emotions. They may, for example, misread cues and incorrectly believe that another person is angry or threatening. This, in turn, leads to behavior problems....")

(177.) Monahan et al., supra note 170, at 588 (concluding that "changes in refinement of competing brain circuitry" cause adolescents to be "more reactive in emotionally charged and social situations than adults").

(178.) Ofshe & Leo, supra note 129, at 997-98 ("Interrogation in America is anxiety-provoking by design.... [S]uspects are confined in an unfamiliar setting, isolated from any social support, and perceive themselves to be under the physical control of the investigator.... To overcome a suspect's resistance, an investigator employs influence techniques that are intended to induce significant distress and anxiety.... [The suspect] may continue the interaction until he can no longer stand the strain and must escape the physical confinement, fatigue, and distress of relentless questioning.")

(179.) Bloom, supra note 176, at 277-78.

(180.) See Feierman & Fine, supra note 35, at 3.

(181.) Kassin et al., supra note 16, at 7.

(182.) Bloom, supra note 174, at 278. See also generally Marie Osborne's presentation Miranda & Juvenile Justice, American Bar Association Summit on Public Defense (February 2016), available at https://www.americanbar.org/content/dam/aba/multimedia/probono_public_service/session3.authcheckdam.mp3.

(183.) See TRAINUM, supra note 130, at 115-16.

(184.) See Spano v. New York, 360 U.S. 315, 323 (1959) (confession involuntary where, in combination with other tactics, police posed as "false friend" and "worried father").

(185.) Dassey v. Dittman, 201 F.Supp.3d 963, 1000 (E.D. Wis. 2016).

(186.) See Spano, 360 U.S. at 323 (concluding that interrogators use of a false friend played a part in overbearing the suspect's will because his "sympathy [was] falsely aroused");

(187.) See, e.g., Kassin et al., supra note 16, at 18.

(188.) See supra Section VII.A (explaining why the functioning of the prefrontal cortex is so critical to the interrogation context).

(189.) Jackson v. Denno, 378 U.S. 368, 385-86 (1964).

(190.) Mincey v. Arizona, 437 U.S. 385, 398 (1978) (citations omitted).

(191.) Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); Arizona v. Fulminante, 499 U.S. 279, 285-87 (1991). See, e.g., People v. Jimenez, 21 Cal. 3d 595 (1978) (holding that promises of leniency constitute coercive police conduct weighing against a finding of voluntariness).

(192.) Schneckloth, 412 U.S. at 226 (citations omitted).

(193.) Id.; see also Fare v. Michael C, 442 U.S. 707, 725 (1979) (the totality of the circumstances "includes evaluation of the juvenile's age, experience, education, background, and intelligence").

(194.) Eve Brensike Primus, The Future of Confession Law: Toward Rules for the Voluntariness Test, 114 MICH. L. REV. 1 (2015).

(195.) Colorado v. Connelly, 479 U.S. 157, 167 (1986).

(196.) J.D.B. v. North Carolina, 564 U.S. 261, 269 (2011); Corley v. United States, 556 U.S. 303 (2009). See, e.g., United States v. IMM, 747 F.3d 754, 767 (9th Cir. 2014) (explaining that forcing the juvenile suspect to choose between "adopting the detective's false account of events as his own [or] calling his own grandfather a liar.... employed intense psychological coercion of a sort to which juveniles are uniquely vulnerable"); People v. White, 828 N.W.2d 329, 354 (Mich. 2013) (Kelly, J. dissenting) (explaining that the investigator "should have recognized that defendant's age made him especially susceptible to subtle compulsive efforts"); Commonwealth v. Truong, No. CV20090385, 2011 WL 1886500, at *6 (Mass. Sup. Ct. Feb. 25, 2011) ("[f]or the Commonwealth to successfully demonstrate a knowing and intelligent waiver by a juvenile.... the circumstances should demonstrate a high degree of intelligence, experience, knowledge, or sophistication on the part of the juvenile").

(197.) See In re Gault, 387 U.S. 1, 52 (1967) (explaining "authoritative opinion has cast formidable doubt upon the reliability and trustworthiness of 'confessions' by children"); Gallegos v. Colorado, 370 U.S. 49, 54 (1962) (noting "a 14-year-old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police."); Haley v. Ohio, 332 U.S. 596, 599 (1948) (describing "[t]hat which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens").

(198.) 237 Cal. App. 4th 568 (Cal. Ct. App. 2015).

(199.) Id. at 591.

(200.) Id. at 591 (declaring that "[t]here is every reason to believe the aggressive, deceptive, and unduly suggestive tactics [the detective] employed would have been particularly intimidating in these circumstances."). The court goes on to say the "use of deceptive techniques is significantly more indicative of involuntariness where, as here, the subject is a 13-year-old adolescent." Id. at 593.

(201.) Haley, 332 U.S. at 599.

(202.) 237 Cal. App. 4th at 593-95.

(203.) Feierman & Fine, supra note 35, at 26.

(204.) No. A117122, 2009 WL 2332183 (Cal. Ct. App. July 30, 2009).

(205.) Feierman & Fine, supra note 35, at 26.

(206.) Pratcher, No. A117122, 2009 WL 2332183, at *11, *16.

(207.) Id. at* 10.

(208.) Id at *27.

(209.) Id. at *22-23.

(210.) Id. Note that the lower court concluded that the interrogators were not overbearing, aggressive, or intimidating despite their use of several coercive ploys, including lying to Pratcher that DNA linked him to the scene of the crime and used the fact that Pratcher's brother was also in jail and was to be arraigned that morning as leverage during the interrogation, which the court admitted was "troubling" and "borderline." Id. at 23.

(211.) It is unclear from the opinion whether the defense attorney presented these arguments.

(212.) See, e.g., United States v. Gipp, 147 F.3d 680, 688 (8th Cir. 1998) (holding that psychiatric expert witness could have testified about the juvenile defendant's post-traumatic stress disorder and its impact on the voluntariness of his confession and whether he lacked the requisite specific intent). According the DSM-5, the diagnostic criteria for PTSD include: (1) a history of exposure (direct experience, witnessing, or indirect exposure by learning that a close relative or close friend was exposed to actual or threatened death) to a traumatic event, including death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence; (2) intrusion symptoms, which means the traumatic event is persistently re-experienced in one of five enumerated ways; (3) avoidance, meaning persistent effortful avoidance of distressing trauma-related stimuli after the event; (4) negative alterations in cognitions and mood, requiring at least two of seven specific enumerated alterations; (5) alterations in arousal and reactivity, requiring at least two of six specific enumerated alterations; (6) symptoms must persist for more than one month; (7) must cause significant distress or functional impairment; and (8) the symptoms cannot be due to medication, substance abuse or other illness. AM. PSYCHIATRIC ASS'N, DIAGNOSTIC & STAT. MANUAL OF MENTAL DISORDERS 271-72 (5th ed. 2013).

(213.) Sturm v. Beard, No. SA CV 11-0448 FMO (JCG), 2013 WL 6732909, at *11 (CD. Cal. Dec. 19, 2013), aff'd sub nom. Sturm v. Cate, 661 Fed.Appx. 489 (9th Cir. 2016).

(214.) Id. See also Frazier v. Mobley, No. 5:14-HC-2056-F, 2015 WL 4910179, at *6-9 (E.D.N.C. Aug. 17, 2015), appeal dismissed, 631 F.Appx 187 (4th Cir. 2016) (affirming denial of motion to suppress after evidence of PTSD admitted, and holding that petitioner's mental health condition did not motivate his confession, but failing to provide any analysis of that mental health condition and its impact on the petitioner's behavior in the interrogation); Kissinger v. Pitcher, No. 4:04-CV-101, 2006 WL 2528455, at *1, *4 (W.D. Mich. Aug. 14, 2006) (affirming lower court's holding that defendant's confession was voluntary despite evidence that defendant was suffering from PTSD, as well as other mental illness, and holding that "the record does not support that defendant exhibited, or that [the officer] observed, signs of distress as the result of substance withdrawal or psychiatric ailments" or that the officer "took advantage of any alleged physical or mental deficiency").

(215.) 2014 WL 1379275 (S.D. Ca. 2014).

(216.) Id. at* 16.

(217.) Id.

(218.) 346 P.3d 1214 (Or. Ct. App. 2015).

(219.) Id. at 1218-19.

(220.) Id.

(221.) Id at 1221.

(222.) Id at 1218-19.

(223.) Id. at 1219.

(224.) See Williams v. Norris, 576 F.3d 850, 857-58 (8th Cir. 2009). In Norris, a capital case, the court considered the appellant's mitigation evidence in order to resolve an ineffective assistance of counsel claim for failure to investigate and present appellant's social history at the penalty phase of his trial. Id. Summarizing expert testimony, the court noted the appellant had been '"exposed to pretty much every category of traumatic experience that is generally used to describe childhood trauma,' including physical, sexual, and psychological abuse, and neglect" by multiple individuals. Id.

(225.) Id. at 857-58, 868-69.

(226.) See supra Section VLB. (discussing why PTSD is an inadequate, incomplete, and inappropriate diagnosis for the majority of traumatized children).

(227.) See, e.g., Feierman & Fine, supra note 35, at 6 ("[I]nformation about trauma is already regularly introduced in court through psychological evaluations, pre-sentencing reports, and by prosecution or defense attorneys. In one study... researchers found information about possible traumatic experiences in 71 percent of the psychological evaluations.")

(228.) Roper v. Simmons, 543 U.S. 551, 572-75 (2005).

(229.) Id. at 569-575; Crime and the Adolescent Brain, supra note 15.

(230.) Roper, 543 U.S. at 569 (internal quotation marks and citations omitted). See also supra Section VII.A. (detailing the core differences between adolescents and adults, and the neuroscience underlying those differences, that the Court found so persuasive).

(231.) Id at 569-70.

(232.) Graham v. Florida, 560 U.S. 48, 75 (2010) (holding a life without parole sentence for a juvenile convicted of a non-homicide offense unconstitutional); Miller v. Alabama, 567 U.S. 460, 465 (2012) (holding a life without parole sentence for juvenile who committed homicide unconstitutional); Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016) (holding that Miller must apply retroactively to all juveniles serving life without parole sentences).

(233.) J.D.B. v. North Carolina, 564 U.S. 261, 269 (2011). See also Marsha L. Levick & Elizabeth-Ann Tierney, The United States Supreme Court Adopts a Reasonable Juvenile Standard in J.D.B. v. North Carolina for Purposes of the Miranda Custody Analysis: Can a More Reasoned Justice System for Juveniles Be Far Behind?, 47 HARV. C.R.-C.L.L REV. 501, 503, 517-18 (2012).

(234.) See, e.g., Tamar R. Birckhead, The Age of the Child: Interrogating Juveniles After Roper v. Simmons, 65 WASH. & LEE L. REV. 385, 406-14 (2008); Martin Guggenheim & Randy Hertz, J.D.B. and the Maturing of Juvenile Confession Suppression Law, 38 WASH. U. J. L. & POL'Y 109, 152-54 (2012).

(235.) Schneckloth, 412 U.S. at 226; Fare, 442 U.S. at 725; Miller v. Fenton, 474 U.S. 104, 109 (1985) (an analysis of the totality of the circumstances requires the court to consider "whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant's will was in fact overborne") (emphasis added). See also Primus, supra note 176, at 29-30 (explaining that some police tactics will only be coercive as applied to specific vulnerable types of suspects).

(236.) See Miller, 474 U.S. at 109. See also Yarborough v. Alvarado, 541 U.S. 652, 667-68 (differentiating the Miranda custody test from the voluntariness test which turns upon "the actual mindset of a particular suspect, where we do consider a suspect's age and experience").

(237.) See Glaser, supra note 23, at 106.

(238.) This article does not attempt to summarize and evaluate the various approaches to assessing trauma but instead notes that several reputable groups have developed trauma evaluation tools. For example, the American Bar Association, in partnership with Safe Start Center, created a guide and screening tool for attorneys who work with youth called Identifying Polyvictimization and Trauma Among Court-Involved Children and Youth: A Checklist and Resource Guide of Attorneys and Other Court-Appointed Advocates. Feierman & Fine, supra note 35, at 16.

(239.) Such an investigation into an individual juvenile defendant's functioning and impairments is somewhat analogous to the investigation of adaptive functioning conducted by capital defense attorneys in cases involving intellectually disabled defendants charged with capital murder or already sentenced to death. In Atkins v. Virgnia,, the U.S. Supreme Court banned execution of intellectually disabled individuals as cruel and unusual pursuant to the Eight Amendment. 536 U.S. 304 (2002). In order to show that defendants are ineligible for the death penalty pursuant to Atkins, courts typically require a showing of an IQ of 70 or below paired with a history of "adaptive functioning" indicative of intellectual disability. See, e.g., Marc J. Tasse, Adaptive Behavior Assessment and the Diagnosis of Mental Retardation in Capital Cases, APPLIED NEUROPSYCHOLOGY 16:114-123 (2009); A Practitioner's Guide to Defending Capital Clients Who Have Mental Retardation/Intellectual Disability, The International Justice Project, December 2010 (3rd Ed.)

(240.) See Glaser, supra note 23, at 99 ("Questions remain, however, about neurobiological mechanisms by which abuse and neglect become linked with behavioural and emotional impairment.").

(241.) Buckingham, supra note 36, at 678.

(242.) See, e.g., Glaser, supra note 23, at 102 (observing that "[i]t is now increasingly possible to study simultaneously the neurobiological processes accompanying or underlying observed behaviour.... enabling the apparent mind-brain dichotomy to be bridged," and explaining her own mission to tie together psychological and neurobiological research that does not necessarily directly concern child maltreatment but is clearly relevant and applicable).
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