Research suggests that 65 to 75 percent of youths involved with the juvenile justice system have one or more diagnosable psychiatric problems.1 Without identification and treatment, these youth may pose a safety risk to themselves or others in facilities. Moreover, untreated youth may become even more deeply involved in the system as they “fail to adjust” to probation conditions and the demands of institutional placements. Juvenile courts have launched important initiatives to address the needs of this population, including screening, assessment and treatment at one or more stages of the juvenile court process.
However, there is a very real potential for youth to incriminate themselves in these situations, leaving them open to prosecution for additional offenses. Youth charged with crimes have a constitutional right not to incriminate themselves.2 This right against self-incrimination is threatened, however, when a youth answers certain questions or provides information during screening, assessment or treatment. Without explicit protections, youth risk prosecution for statements procured for the purpose of identifying and treating their behavioral health problems.
Juvenile Law Center works to ensure that youth in the justice system can obtain the treatment they need for rehabilitation without sacrificing their constitutional rights. To that end, we have drafted model statutes and court rules and work with stakeholders to enact state legislation or court rules that limit the admissibility of such statements in delinquency proceedings. Juvenile Law Center also litigates to prevent statements made during behavioral health treatment from being used against youth in trials. For example, in In the Interest of C.R.O., Juvenile Law Center partnered with local counsel to successfully argue that youth should not be forced to incriminate themselves while undergoing court-ordered sex offender treatment.
1 Jennie L. Shufelt & Joseph J. Cocozza, Nat'l Ctr. For Mental Health & Juv. Just., Youth with Mental Health Disorders in the Juvenile Justice System: Results from a Multi-State Prevalence Study 2 (2006); Linda A. Teplin, Karen M. Abram, Gary M. McClennan, Mina K. Dulcan & Amy A. Mericle, Psychiatric Disorders in Youth in Juvenile Detention, 59 Archives Gen. Psychiatry 1133-43 (2002); Gail A. Wasserman, Larkin S. McReynolds, Susan J. Ko, Laura M. Katz & Jennifer R. Carpenter, Gender Differences in Psychiatric Disorders at Juvenile Probation Intake, 95 Amer. J. Pub. Health 131, 133-34 (2005); Gail A. Wasserman, Larkin S. McReynolds, Christopher P. Lucas, Prudence Fisher & Linda Santos, The Voice DISC-IV with Incarcerated Male Youth: Prevalence of Disorder, 41 J. Am. Acad. Child & Adolescent Psychiatry 314, 317 (2002)
2 In re Gault, 387 U.S. 1 (1967).
Last updated: 2/10/2015
“No person…shall be compelled in any criminal case to be a witness against himself….”
U.S. Const. amend. V.
Indiana statute provides that, except for statements directly related to a homicide, any statement communicated to an evaluator during court-ordered or voluntary mental health screening, assessment, evaluation or treatment may not be admitted into evidence on the issue of whether the child committed a delinquent or criminal act.
Ind. Code. Ann. §§ 31-32-2-2.5, 31-37-8-4.5 (West 2008).
In NJ, any statement made by a juvenile in the course of a suicide or mental health screening cannot be provided to the court, prosecutor, or law enforcement without the juvenile's consent.
N.J. Stat. Ann. § 2A:4A-60.2 (West 2007).
Texas law provides that any statement made by a child and any mental health data obtained during a screening by the probation department is not admissible against the child at any other hearing.
Tex. Hum. Res. Code Ann. § 221.003
Pennsylvania amended its Juvenile Act in 2008 to protect statements made in the course of screening and assessment for various behavioral health concerns.
42 Pa. Cons. Stat. § 6338(c).
Five jurisdictions - D.C., IL, IN, WI, and WY - have either statutes or court rules explicitly prohibiting the use of statements made in court-ordered treatment to determine guilt in juvenile delinquency and criminal proceedings.
Lourdes Rosado, Outside the Police Station: Dealing With the Potential for Self-Incrimination in Juvenile Court, 38 Washington University Journal of Law & Policy 177, 206 (2012).
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