State of New Jersey in the Interest of M.P.

RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1229-22 APPROVED FOR PUBLICATION STATE OF NEW JERSEY IN THE INTEREST OF M.P., July 12, 2023 a minor. APPELLATE DIVISION __________________________ Argued June 6, 2023 – Decided July 12, 2023 Before Judges Geiger, Susswein and Berdote Byrne. On appeal from an interlocutory order of the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FJ-07-0934-20. John P. Flynn, Assistant Deputy Public Defender, argued the cause for appellant M.P. (Joseph E. Krakora, Public Defender, attorney; John P. Flynn, of counsel and on the briefs). Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent State of New Jersey (Theodore N. Stephens, II, Acting Essex County Prosecutor, attorney; Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Lila B. Leonard, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Matthew J. Platkin, Attorney General, attorney; Lila B. Leonard, of counsel and on the brief). Elana Wilf argued the cause for amicus curiae Rutgers Criminal and Youth Justice Clinic and American Civil  Liberties Union of New Jersey Foundation (Laura Cohen and Elana Wilf, attorneys for Rutgers Criminal and Youth Justice Clinic; Alexander Shalom and Jeanne M. LoCicero, attorneys for American Civil Liberties Union of New Jersey Foundation; Laura Cohen, Elana Wilf, Alexander Shalom, and Jeanne M. LoCicero, on the joint brief). The opinion of the court was delivered by SUSSWEIN, J.A.D. By leave granted, M.P., a juvenile, appeals an interlocutory Family Part order admitting into evidence the statement he gave to police during a stationhouse interrogation. M.P. was sixteen years old when he was questioned in connection with his participation in a murder. His mother attended the interrogation session. M.P. claims the motion court erred in finding he knowingly, intelligently, and voluntarily waived his Miranda1 rights. M.P. argues, among other things, the motion court improperly excluded expert testimony pertaining to his intellectual capacity and ability to comprehend his constitutional rights. The State argued in the Family Part that the defense expert's testimony was inadmissible, filing a motion to exclude it from the suppression hearing. The State's position has since changed; the prosecutor acknowledged at oral argument before us that the defense expert's 1 Miranda v. Arizona, 384 U.S. 436 (1966). A-1229-22 2 testimony should have been admitted. The State nonetheless contends that, considering the totality of the relevant circumstances, the motion court correctly decided that M.P.'s waiver of his Miranda rights was valid. Aside from seeking to suppress his incriminating statement to police applying a fact-sensitive totality-of-the-circumstances test, M.P. asks us to adopt a new categorical rule that would prohibit police from conducting a stationhouse interrogation of a juvenile unless and until the minor is represented by an attorney. M.P. relies on neuroscience and behavioral science research that shows juveniles are not only more impulsive and compliant than adults but also tend to lack the cognitive skills to comprehend Miranda rights. He contends that in view of advances in the scientific understanding of adolescent brain development, no juvenile should be subjected to a stationhouse interrogation—with or without parental participation—until the juvenile has consulted with counsel. We have no authority to pronounce any such per se requirement, especially in light of our Supreme Court's rejection of a less-expansive request for an attorney-appointment rule in State in Int. of A.S., 203 N.J. 131, 154 (2010). We acknowledge there have been significant reforms to New Jersey's juvenile justice system in recent years based on scientific research on how a juvenile's brain develops and how it functions differently from a fully mature A-1229-22 3 adult brain.2 But even accepting for the sake of argument the validity and relevance of the scientific studies M.P. relies on, those research findings do not confer upon us authority to substantially rework our State's juvenile interrogation jurisprudence, and certainly not to overturn New Jersey Supreme Court precedent. See Pannucci v. Edgewood Park Senior Hous. — Phase 1, LLC, 465 N.J. Super. 403, 414 (App. Div. 2020) (noting plaintiff asked us "to change the law the Supreme Court has established," and holding, "[t]hat, we may not do" (citing State v. Steffanelli, 133 N.J. Super. 512, 514 (App. Div. 1975))). Stated another way, we are bound by precedents that already account for the fact that juveniles are different from adults and thus are to be treated differently for purposes of custodial interrogations. While the rules and principles announced in those precedents are not immutable, it is for our Supreme Court and the Legislature—not an intermediate appellate court—to weigh the benefits and costs of the major juvenile justice system policy shift M.P. proposes. 2 Examples of those other reforms relate to the involuntary transfer of minors from juvenile to adult court, see N.J.S.A. 2A:4A-26.1 (2016), and the sentencing of juvenile offenders who ultimately are convicted in adult court, see Miller v. Alabama, 567 U.S. 460 (2012); State v. Zuber, 227 N.J. 422 (2017); State v. Comer, 249 N.J. 359 (2022). A-1229-22 4  M.P. also asks us to revise the Miranda warnings administered by police in New Jersey to make them more comprehensible to adolescents. We decline that request as well for similar reasons. In doing so, we do not mean to suggest the current warnings are sacrosanct and cannot be improved based o n juvenile brain research. Rather, we believe the task of revising the familiar Miranda warnings to address the inherent differences between adults and juveniles is beyond our authority, especially considering the limited record before us. Cf. State v. Henderson, 208 N.J. 208, 217 (2011) (appointing a Special Master to review and report on scientific studies pertaining to the reliability of eyewitness identifications, providing the evidence -based foundation for significant reforms). Turning to the application of existing precedents and guiding principles to the present case, although we are mindful of the deference we owe to the motion court's factual findings, we are not persuaded the State proved beyond a reasonable doubt that M.P. knowingly, intelligently, and voluntarily waived his right to remain silent. Considering all relevant circumstances, including M.P.'s intellectual challenges, mental conditions, and highly emotional state, as well as the role his mother played, we conclude his statement should have been suppressed. A-1229-22 5  I. We discern the following facts and procedural history from the record. 3 At approximately 11:40 a.m. on December 11, 2019, Newark police took M.P. into custody for possession of a handgun. The Essex County Prosecutor's Office (ECPO) learned of his arrest and had him transported for questioning in relation to a shooting death three days earlier. Police found the victim's body across the street from his home with a gunshot wound to the back. A surveillance video recovered near the crime scene showed five individuals, one of whom was M.P., approached the victim's car. The State alleges that M.P. and another individual, N.H., forced the victim to exit the car at gunpoint and had him walk towards his house. When the victim began to run, N.H. fired two shots, one of which struck the fleeing victim in the back. The victim died shortly thereafter. A surveillance video captured the group running away from the scene; M.P. was carrying a gun. After the stationhouse interrogation, M.P. was formally charged by complaint with several acts of delinquency. At issue in this appeal are charges that would constitute the following crimes if committed by an adult: first - degree murder, N.J.S.A. 2C:11-3(a)(1); first-degree felony murder, N.J.S.A. 3 We note this appeal comes to us before trial and that M.P. is presumed innocent of all allegations. A-1229-22 6 2C:11-3(a)(3); first-degree robbery, N.J.S.A. 2C:15-1(a)(1); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1(a)(1); second- degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); and second- degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a)(1). On February 7, 2020, the State filed a motion to transfer jurisdiction to adult court.4 In May 2022, the State moved to admit into evidence the statement M.P. gave to police during the stationhouse interrogation. He opposed the motion, arguing that he did not make a knowing, intelligent, and voluntary waiver of his rights. The Family Part court ruled that it would decide the motion to suppress before deciding the motion to transfer jurisdiction. M.P. sought to present expert testimony from Dr. Emily Haney-Caron on adolescent brain development and juvenile comprehension of Miranda warnings and rights. The State filed a motion pursuant to N.J.R.E. 104 and 702 to exclude her testimony from the suppression hearing. The motion court reserved decision on the State's application, ruling it would consider her report 4 That motion is still pending before the Family Part judge. The State's application to waive jurisdiction to adult court is not before us in this appeal , and we offer no opinion on whether this prosecution should be resolved in the Family Part or Criminal Part. A-1229-22 7 and hear her testimony during the Miranda hearing before issuing a decision on the testimony's admissibility. Following the two-day Miranda hearing, the motion court excluded Dr. Haney-Caron's testimony on the grounds it was not beyond the ken of the average factfinder. The motion court heard testimony from one of the two detectives who conducted the interrogation. The court also watched an electronic recording of the interrogation, whereupon it ruled M.P.'s waiver of Miranda rights was valid and that his statement would be admissible at trial. We granted M.P.'s motion for leave to appeal that interlocutory order. We also granted a motion by the American Civil Liberties Union of New Jersey and the Rutgers Criminal and Youth Justice Clinic (collectively, defense amici) to participate as amici curiae. We invited the Attorney General to also participate as amicus. M.P. raises the following contentions for our consideration: POINT I THE TRIAL COURT ERRED IN ADMITTING THE CUSTODIAL STATEMENT BECAUSE THE STATE FAILED TO CARRY ITS HEAVY BURDEN TO PROVE THE VALIDITY OF THE MIRANDA WAIVER BEYOND A REASONABLE DOUBT. A. The trial court abused its discretion in disregarding the expert's testimony, which detailed factors present in M.P's case that cast doubt on the validity of his Miranda waiver. A-1229-22 8  B. The detectives' failure to allow M.P. and his mother to consult in private after being provided Miranda warnings creates reasonable doubt as to the validity of the waiver. C. The detective's misleading response to the mother's question during the waiver procedure casts reasonable doubt as to the validity of the waiver. D. The role of M.P.'s mother as an assistant to the police during the interrogation and the consistent pressure she applied upon M.P. to speak creates reasonable doubt as to the voluntariness of M.P.'s Miranda waiver. E. The trial court erred as a matter of law in concluding that the totality of the circumstances did not create reasonable doubt as to the validity of M.P.'s Miranda waiver. POINT II ALTERNATIVELY, THIS CASE DEMONSTRATES THAT JUVENILES MUST BE PROVIDED COUNSEL DURING CUSTODIAL INTERROGATIONS IN ORDER TO FULLY PROTECT THEIR CONSTITUTIONAL RIGHTS. II. We first address M.P.'s request that we create a new categorical rule that would preclude police from conducting a custodial interrogation of a minor unless he or she has consulted with an attorney. Because we are by no means writing on a clean slate, we begin our legal analysis by canvassing the current principles that safeguard the right against self-incrimination. A-1229-22 9  A. We first address the constitutional right to remain silent that protects all persons, adult and juvenile. "The right against self-incrimination is guaranteed by the Fifth Amendment to the United States Constitution and this state's common law, now embodied in statute, N.J.S.A. 2A:84A-19, and evidence rule, N.J.R.E. 503." State v. Nyhammer, 197 N.J. 383, 399 (2009). Both the statute and evidence rule mirror the constitutional rule, stating that "every natural person has a right to refuse to disclose in an action or to a police officer or other official any matter that will incriminate him or expose him to a penalty or a forfeiture of his estate." State v. O.D.A.-C., 250 N.J. 408, 420 (2022). As summarized by our Supreme Court in State v. Tillery: In Miranda, the United States Supreme Court held that before law enforcement subjects a suspect to custodial interrogation, the suspect must be advised: (1) "that he has the right to remain silent"; (2) "that anything he says can be used against him in a court of law"; (3) "that he has the right to the presence of an attorney"; and (4) "that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Miranda imposes a fifth requirement: "that a person must be told that he can exercise his rights at any time during the interrogation." [238 N.J. 293, 315 (2019) (internal citations omitted).] A-1229-22 10 Those familiar warnings are designed to help mitigate the inherent coercion of a custodial interrogation. Miranda, 384 U.S. at 468. An interrogee may, of course, waive Miranda rights, "provided the waiver is made voluntarily, knowingly and intelligently." Id. at 444. The standard for reviewing the validity of a waiver is especially strict under New Jersey law, which provides criminal suspects greater protections than are afforded under the United States Constitution. Our Supreme Court very recently reaffirmed in State v. Erazo that "[w]ith respect to the trial court's admission of police-obtained statements, . . . an appellate court 'should engage in a "searching and critical" review of the record to ensure protection of a defendant's constitutional rights.'" ___ N.J. ___, ___ (2023) (slip op. at 23) (quoting State v. Hreha, 217 N.J. 368, 381–82 (2014)). Importantly, moreover, our law requires the State to prove a valid waiver beyond a reasonable doubt. O.D.A.-C., 250 N.J. at 420. Federal law, in contrast, requires proof the waiver was valid by the much lower preponderance-of-the-evidence standard. Ibid. (quoting Colorado v. Connelly, 479 U.S. 157, 168 (1986)). In considering whether the demanding proof-beyond-a-reasonable-doubt standard has been met, courts assess the totality of the circumstances surrounding the interrogation, including "the defendant's age, education and intelligence, advice as to constitutional rights, length of [the] detention, A-1229-22 11 whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved." Erzao, ___ N.J. at ___ (slip op. at 29) (alteration in original) (quoting Nyhammer, 197 N.J. at 402). "The inquiry also considers statements and behaviors by the police that tend to contradict the Miranda warnings, or otherwise render them ineffective." Ibid. Constitutional protections that safeguard the right against self- incrimination do not stop with the administration of Miranda warnings and the signing of a form acknowledging and waiving the enumerated rights. "Beyond the issue of [a Miranda] waiver, there are separate due process concerns related to the voluntariness of a confession." O.D.A.-C., 250 N.J. at 421. "Due process requires the State to 'prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne.'" Ibid. (quoting State v. L.H., 239 N.J. 22, 42 (2019)). "The voluntariness determination weighs the coercive psychological pressures brought to bear on an individual to speak against his power to resist confessing." L.H., 239 N.J. at 43 (citing Dickerson v. United States, 530 U.S. 428, 434 (2000)). "The due process test takes into consideration the totality of all the surrounding circumstances—both the characteristics of the accused and the A-1229-22 12 details of the interrogation." Id. at 42 (internal quotation marks omitted) (quoting Dickerson, 530 U.S. at 434). This totality-of-the-circumstances test shares "'a substantial overlap [with] the factors that' apply to a [ Miranda] waiver analysis." 5 O.D.A.-C., 250 N.J. at 421 (first alteration in original) (quoting Tillery, 238 N.J. at 316–17). The voluntariness factors are "'assessed qualitatively, not quantitatively,' for 'the presence of even one of those factors may permit the conclusion that a confession was involuntary.'" L.H., 239 N.J. at 43 (quoting Hreha, 217 N.J. at 384). An involuntary confession is "inadmissible in evidence regardless of its truth or falsity." Ibid. (quoting State v. Miller, 76 N.J. 392, 405 (1978)). B. We next briefly summarize the special safeguards against self- incrimination that apply specifically to interrogees who are less than eighteen years old. No one disputes that children are different from adults for purposes of determining the admissibility of admissions and confessions given to police. See State in Int. of A.W., 212 N.J. 114, 136 (2012) (noting in the context of a 5 "[T]he factors relevant to the voluntariness analysis include 'the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment were involved,' as well as previous encounters with law enforcement." Ibid. (quoting State v. Hreha, 217 N.J. 368, 383 (2014)). A-1229-22 13 juvenile's confession, "[w]e have consistently recognized that juveniles are different from adult suspects"). Indeed, it is well-settled under New Jersey law that children "receive heightened protections when it comes to custodial interrogations." State in Int. of A.A., 240 N.J. 341, 354 (2020). These additional protections apply because juveniles "are typically less mature, often lack judgment, and are generally more vulnerable to pressure than adults." Ibid. Importantly, our Supreme Court has stressed that "'the greatest care must be taken to assure that' a juvenile's admission is 'voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.'" Ibid. (quoting In re Gault, 387 U.S. 1, 55 (1967)). To that end, juvenile interrogees in this State have the right to have a parent or guardian present when Miranda warnings are administered. State v. Presha, 163 N.J. 304, 322 (2000). The Court in A.S. explained, "'[t]he role of a parent in the context of a juvenile interrogation takes on special significance,' because '[i]n that circumstance, the parent serves as advisor to the juvenile, [and] someone who can offer a measure of support in the unfamiliar setting of the police station.'" 203 N.J. at 147 (alterations in original) (quoting Presha, 163 N.J. at 314). The Court in Presha reasoned that "[p]arents are in a position to assist juveniles in understanding their rights, acting intelligently in waiving A-1229-22 14 those rights, and otherwise remaining calm in the face of an interrogation." 163 N.J. at 315. Chief Justice Rabner, writing for a unanimous Court, recently confirmed "[t]he protections outlined in Presha remain good law." A.A., 240 N.J. at 358. In A.S., the Court emphasized, moreover, that "mere presence of a parent is insufficient to protect a juvenile's rights." 203 N.J. at 148. " In order to serve as a buffer," the Court explained, "the parent must be acting with the interests of the juvenile in mind." Ibid. The Court nonetheless recognized, "[t]hat is not to say that a parent cannot advise his or her child to cooperate with the police or even to confess to the crime if the parent believes that the child in fact committed the criminal act." Ibid.; see also State in Int. of Q.N., 179 N.J. 165, 176 (2004) (finding a juvenile's confession was voluntary even though the mother urged her son to confess and then left interrogation room). III. M.P. and defense amici ask us to create a new bright-line rule requiring the appointment of counsel before police may interrogate a juvenile who is in custody. Any such rule could have far-reaching unintended consequences. For one thing, an attorney-appointment requirement might effectively eliminate juvenile custodial interrogations since we would expect an appointed counsel to advise the juvenile to remain silent. As Justice Stein noted in his A-1229-22 15 concurring opinion in State v. Reed, "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." 133 N.J. 237, 273 (1993) (Stein, J., concurring) (quoting Watts v. Indiana, 338 U.S. 49, 59 (1949) (Jackson, J., concurring)). There is, of course, a public safety interest in solving crimes expeditiously. Properly conducted custodial interrogations can promote that salutary objective without compromising a suspect's constitutional rights. We add that the categorical rule M.P. and defense amici propose could conceivably have an unintended adverse impact on some juveniles, potentially depriving them, for example, the benefit of a stationhouse adjustment or other diversion from formal prosecution. 6 6 A 2020 directive issued by the Attorney General to implement juvenile justice reform defines a stationhouse adjustment as: [A] mechanism that allows law enforcement agencies to resolve a juvenile's unlawful conduct without formal court proceedings. A stationhouse adjustment, which must be memorialized in a signed agreement, establishes one or more conditions that the juvenile must meet in exchange for the law enforcement agency declining to pursue a formal delinquency complaint against the juvenile. [Attorney General, Directive Establishing Policies, Practices, and Procedures to Promote Juvenile Justice Reform, (Dec. 3, 2020) (Directive 2020-12).] A-1229-22 16  M.P. and defense amici nonetheless argue a categorical attorney- appointment rule is needed because parents are not an adequate substitute for a lawyer. Certainly, the function served by a parent during a stationhouse interrogation is different from the role that would be played by an attorney. A parent may comfort and calm the child whereas an attorney is focused on providing legal counsel and protecting the child's penal interests. As our Supreme Court noted in A.S., a parent may advise a child to waive the right to remain silent and confess to a crime. 203 N.J. at 148. In contrast, as we have already noted, we would expect a lawyer to advise a client—adult or adolescent—to remain silent and allow the lawyer to speak on the client's behalf when dealing with law enforcement. The crux of M.P.'s policy argument is that our Supreme Court's reliance on parental involvement to mitigate the inherent coerciveness of custodial interrogation has not proved to be effective in practice. M.P. and defense We note a stationhouse adjustment would be unavailable for the serious crimes with which M.P. was eventually charged. However, the categorical attorney-appointment rule requested by M.P. and defense amici would not be limited by the degree of crime under investigation but rather would be triggered automatically by any stationhouse interrogation. We add that making an attorney-appointment rule dependent on unfiled charges under investigation would be problematic for reasons explained in State v. Sims, 250 N.J. 189, 215 (2022). See ibid. ("[E]ven when there is probable cause for an arrest, there may be insufficient information about the victim's injuries, the arrestee's mental state, and other key issues to enable an officer to accurately identify the charges."). A-1229-22 17 amici argue that while parents sometimes assist children in comprehending Miranda rights and deciding whether to waive them, parents generally lack the ability to serve as the "buffer" envisioned in Presha, and therefore their participation in an interrogation is insufficient to protect the interests of their children. But as we have noted, in A.A., our Supreme Court unanimously reaffirmed that parents must be afforded the opportunity to serve as a buffer between police and their children. 240 N.J. at 355–56. In light of that recent reaffirmation, we have no authority to conclude parental participation is generally ineffective as M.P. and defense amici contend, much less that it is harmful more often than helpful in protecting a juvenile interrogee's constitutional rights. It bears emphasis the parental participation rule announced in Presha and recently restated in A.A. does not displace the totality-of-the-circumstances test but rather is a critical part of it. The Court in A.S. stressed that point, explaining, "the presence of a parent is a 'highly significant factor' in the totality of the circumstances analysis contemplated by Presha." 203 N.J. at 154 (emphasis in original). The actual role played by a parent during a stationhouse interrogation— whether as a "buffer" or instead as an adjunct law enforcement interrogator—is A-1229-22 18 a fact-sensitive question to be determined on a case-by-case basis. Stated another way, as we discuss in Section XI, a parent's participation may militate for or against a finding of voluntariness depending on the circumstances. See A.A., 240 N.J. at 358 (noting the parent's conduct during the interrogation in that case "upended the model envisioned in Presha"). We add that the totality- of-the-circumstances analytical paradigm is by no means toothless, especially when applied in the context of the proof-beyond-a-reasonable doubt standard. M.P. bases his request for a categorical attorney-appointment requirement on brain development and behavioral science studies similar to those his expert, Dr. Haney-Caron, relied upon in her report and testimony. 7 M.P. argues those and comparable studies provided the foundation for landmark judicial decisions establishing special sentencing rules for juveniles tried and convicted as adults based on the limited executive functioning resulting from the delayed development of the prefrontal cortex of adolescents and young adults. See supra note 2; see also Roper v. Simmons, 534 U.S. 551, 569 (2005); Graham v. Florida, 560 U.S. 48, 68 (2010). According to M.P., the studies consistently establish that: (1) juveniles lack the cognitive abilities to understand Miranda rights and, because they have difficulty assessing long-term consequences, do not appreciate the 7 We recount Dr. Haney-Caron's testimony in detail in Section VI(B). A-1229-22 19 significance of waiver; (2) juveniles do not understand that the right to remain silent means they do not have to answer any question, a judge cannot force them to answer, they can refuse to answer at any time, and they will not be punished for refusing to answer; (3) youth from economically poor backgrounds and ethnic minorities are at a disproportionately greater risk of not understanding Miranda rights, despite their increased likelihood of having contact with the criminal justice system;8 (4) youth are generally unable to restate Miranda rights after advisement, showing a lack of comprehension and deficiencies in memory; (5) on average, ninety percent of juveniles waive their rights, which is disproportionately higher than the rate for adults; (6) parents generally have misconceptions about Miranda rights, particularly in relation to children, and nearly always advise their child to waive their rights; and (7) juveniles are 250% more likely than adults to give a false confession. M.P. also notes that other jurisdictions have relied upon juvenile brain science to require appointment of counsel as a precondition to a Miranda 8 Defense amici further argue that Black youth are at an even greater disadvantage based on the perception that police tend to accuse them of crime at a disproportionate rate as well as related manifestations of implicit bias. We believe that disproportionate impact on minority interrogees is an important consideration warranting further study and close scrutiny. See State v. Scott, 474 N.J. Super. 388, 399 (App. Div. 2023) ("The problem of implicit bias in the context of policing is both real and intolerable."). A-1229-22 20 waiver, citing to policies adopted in California and Washington. 9 Although M.P. cites the attorney-appointment rules in those jurisdictions as persuasive authority, we emphasize those policies were established by legislation, not judicial decisions. Notably, M.P. cites no case law authority for imposing a categorical attorney-representation rule as a matter of federal or state constitutional imperative. Defense amici join in M.P.'s request, arguing that since Presha was decided, "a robust body of social science and legal scholarship" has established that parents: (1) lack a basic understanding of Miranda rights, rendering their assistance ineffective; (2) "are as susceptible as their children to police interrogation tactics"; (3) are often conflicted by the desire to teach their child a moral lesson and admit their wrongdoing without adequately understanding the legal consequences; and (4) often fail to provide their child any advice regarding Miranda rights and waiver, and those who do offer advice usually tell their child to waive their rights. Thus, defense amici contend, the effect of parental assistance is often to "inadvertently propel the child towards an adjudication, a waiver of jurisdiction, or a conviction based largely or 9 See CAL. WELF. & INST. CODE § 625.6(a); WASH. REV. CODE A NN. § 13.40.740. A-1229-22 21 exclusively on the resulting confession," which contributes to a high rate of false confessions and wrongful convictions among juveniles. This is not the first time this issue has been raised in New Jersey. In A.A., the Court "decline[d] to address the ACLU's argument that juveniles must be allowed to consult with counsel before they can waive their Miranda rights." 240 N.J. at 359 n.1. The Court noted, "A.A. did not advance that claim and, as a general rule, the Court 'does not consider arguments that have not been asserted by a party, and are raised for the first time by an amicus curiae.'" Ibid. (quoting State v. J.R., 227 N.J. 393, 421 (2017)). In A.S., the Court considered an attorney-appointment rule on the merits in the narrow context of a parent who had a conflict of interest. 203 N.J. at 154–55. There, the Court commented: Toward the conclusion of its thorough and thoughtful opinion, the Appellate Division added this rather expansive directive: [i]n circumstances such as those existing in the present matter, where the adult advisor is known to have a close family relationship to both the victim and the alleged perpetrator, the prudent approach would be to require the presence of an attorney capable of advising the juvenile with respect to her rights and her potential culpability, a procedure adopted elsewhere. A-1229-22 22  [Id. at 154 (alteration in original) (quoting State in Int. of A.S., 409 N.J. Super. 99, 122–23 (App. Div. 2009)).] The Court rejected the attorney-appointment requirement proposed by the Appellate Division, explaining: We do not believe that a broad representation requirement that would require the presence of an attorney in every such case is warranted. As we have discussed throughout this opinion, the presence of a parent is a "highly significant factor" in the totality of the circumstances analysis contemplated by Presha and, generally, that reassuring presence will assist the juvenile in the exercise of his or her rights. We decline to embrace a categorical rule that an attorney must be present any time that there is perceived clash in the interests of a parent based on a familial relationship with the victim or another involved in the investigation. Even in cases of such apparent clashing interests, a parent may be able to fulfill the role envisioned in Presha. And, in those cases where a parent is truly conflicted, another adult—not necessarily an attorney—may be able to fulfill the parental assistance role envisioned by Presha. Moreover, when it is apparent to interrogating officers that a parent has competing and clashing interests in the subject of the interrogation, the police minimally should take steps to ensure that the parent is not allowed to assume the role of interrogator and, further, should strongly consider ceasing the interview when another adult, who is without a conflict of interest, can be made available to the child. [Id. at 154–55 (footnote omitted).] Having explicitly rejected a per se attorney-appointment rule when the parent attending the interrogation has a conflict of interest, we must presume A-1229-22 23 the Court would likewise decline to embrace a categorical lawyer-appointment requirement in all cases. Indeed, the categorical rule proposed by M.P. is a far more "expansive directive," to use the Court's characterization, than the one it explicitly rejected in A.S. IV. To this point, we have discussed legal principles derived from the Fifth Amendment right against self-incrimination. There is another constitutional paradigm—derived from Sixth Amendment principles—that safeguards the right to counsel at critical stages of a criminal proceeding. New Jersey jurisprudence, like federal law, recognizes that the right to counsel attaches under the state constitutional analogue to the Sixth Amendment—Article 1, Paragraph 10 of the New Jersey Constitution—at a certain point in the criminal justice process. However, unlike federal law, once the right to counsel attaches under the State Constitution, defendants "may not waive their Miranda rights absent counsel." State in Int. of P.M.P., 200 N.J. 166, 178 (2009). In the adult arena, that categorical restriction occurs when an indictment is returned. Ibid. In Patterson