Amended in Senate May 31, 2016

Amended in Senate March 28, 2016

Senate Bill No. 1052

Introduced by Senators Lara and Mitchell

February 16, 2016

An act to add Section 625.6 to the Welfare and Institutions Code, relating to juveniles.

LEGISLATIVE COUNSEL’S DIGEST

SB 1052, as amended, Lara. Custodial interrogation: juveniles.

Existing law authorizes a peace officer to take a minor into temporary custody when that officer has reasonable cause to believe that the minor has committed a crime or violated an order of the juvenile court. In these circumstances, existing law requires the peace officer to advise the minor that anything he or she says can be used against him or her, that he or she has the right to remain silent, that he or she has a right to have counsel present during any interrogation, and that he or she has a right to have counsel appointed if he or she is unable to afford counsel.

This bill would require that a youth under 18 years of age consult with counsel prior to a custodial interrogation and before waiving any of the begin delete above specified end delete begin insert above-specified end insert rights. The bill would provide that consultation with begin insert legal end insert counsel cannot be waived. If a custodial interrogation takes place before the youth has consulted with begin insert legal end insert counsel, the bill would require the court to consider the effect of the failure to comply with the above-specified requirement and to consider the circumstances surrounding statements made without the assistance of begin insert legal end insert counsel. The bill would make a failure to comply with its provisions admissible in support of claims that the youth’s statement was obtained in violation of his or her rights, was involuntary, or is unreliable. The bill would require the Judicial Council to develop an instruction advising that statements made in a custodial interrogation in violation of these provisions be viewed with caution and would require the court to provide the jury or trier of fact with the instruction.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) Developmental and neurological science concludes that the
process of cognitive brain development continues into adulthood,
and that the human brain undergoes “dynamic changes throughout
adolescence and well into young adulthood.” (See Richard J.
Bonnie, et al., Reforming Juvenile Justice: A Developmental
Approach, National Academies of Science (2012), page 96, and
Chapter 4.) As recognized by the United States Supreme Court,
children and youth “‘generally are less mature and responsible
than adults,’” (J.D.B. v. North Carolina (2011) 131 S.Ct. 2394,
2397, quoting Eddings v. Oklahoma (1982) 455 U.S. 104, 115);
“they ‘often lack the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental to them,’”
(J.D.B., 131 S.Ct. at 2397, quoting Bellotti v. Baird (1979) 443
U.S. 622, 635); “they ‘are more vulnerable or susceptible to…
outside pressures’ than adults” (J.D.B., 131 S.Ct. at 2397, quoting
Roper v. Simmons (2005) 543 U.S. 551, 569); they “have limited
understandings of the criminal justice system and the roles of the
institutional actors within it” (Graham v. Florida (2010) 560 U.S.
48, 78); and “children characteristically lack the capacity to
exercise mature judgment and possess only an incomplete ability
to understand the world around them” (J.D.B., 131 S.Ct. at 2397).

(b) Custodial interrogation of an individual by the state requires
that the individual be advised of his or her rights and make a
knowing, intelligent, and voluntarily waiver of those rights before
the interrogation proceeds. People under 18 years of age have a
lesser ability as compared to adults to comprehend the meaning
of their rights and the consequences of waiver. Additionally, a
large body of research has established that adolescent thinking
tends to either ignore or discount future outcomes and implications,
and disregard long-term consequences of important decisions.
(See, e.g., Steinberg et al., “Age Differences in Future Orientation
and Delay Discounting”; William Gardner and Janna Herman,
“Adolescent’s AIDS Risk Taking: A Rational Choice Perspective,”
in Adolescents in the AIDS Epidemic, ed. William Gardner et al.
(San Francisco: Jossey Bass, 1990), pp. 17, 25-26; Marty Beyer,
“Recognizing the Child in the Delinquent,” Kentucky Child Rights
Journal, vol. 7 (Summer 1999), pp. 16-17; National Juvenile Justice
Network, “Using Adolescent Brain Research to Inform Policy: A
Guide for Juvenile Justice Advocates,” September 2012, pp. 1-2;
Catherine C. Lewis, “How Adolescents Approach Decisions:
Changes over Grades Seven to Twelve and Policy Implications,”
Child Development, vol. 52 (1981), pp. 538, 541-42). Addressing
the specific context of police interrogation, the United States
Supreme Court observed that events that “would leave a man cold
and unimpressed can overawe and overwhelm a lad in his early
teens” (Haley v. Ohio, (1948) 332 U.S. 596 (plurality opinion)),
and noted that “‘no matter how sophisticated,’ a juvenile subject
of police interrogation ‘cannot be compared’ to an adult begin delete subject,”
J.D.B., end delete begin insert subject” (J.D.B., end insert 131 S.Ct. at 2394, quoting Gallegos v.
Colorado (1962) 370 U.S. 49, 54). The law enforcement
community now widely accepts what science and the courts have
recognized: Children and adolescents are much more vulnerable
to psychologically coercive interrogations and in other dealings
with the police than resilient adults experienced with the criminal
justice system.

(c) For these reasons, youth under 18 years of age should consult
with begin insert legal end insert counsel prior to making a waiver of rights. In the
determination of whether a child or youth has knowingly,
intelligently, and voluntarily waived his or her rights under Miranda
v. Arizona (1966) 384 U.S. 436, a court must take into account
the special concerns that are present when a young person is
involved, including a child or youth’s limited experience, education
and immature judgment (Fare v. Michael C. (1979) 442 U.S. 707,
725). These concerns must also take into consideration whether a
child’s or youth’s age or experience indicates that his or her request
for a probation officer, parent, or other adult is in fact an invocation
of his or her right to remain silent (Fare, 442 U.S. at 725).

SEC. 2.  

Section 625.6 is added to the Welfare and Institutions
Code, to read:

625.6.  

(a) Prior to a custodial interrogation, and before the
waiver of any Miranda rights, a youth under 18 years of age shall
consult with begin insert legal end insert counsel. The consultation may not be waived.

(b) If a custodial interrogation of a minor under 18 years of age
occurs prior to the youth consulting with begin insert legal end insert counsel, all of the
following remedies shall be granted as relief for noncompliance
with subdivision (a):

(1) The court shall, in adjudicating the admissibility of
statements of a youth under 18 years of age made during or after
a custodial interrogation, consider the effect of failure to comply
with subdivision (a) and the factors specified in subdivision (c).

(2) Provided the evidence is otherwise admissible, the failure
to comply with subdivision (a) shall be admissible in support of
claims that the youth’s statement was obtained in violation of his
or her Miranda rights, was involuntary, or is unreliable.

(3) If the court finds that a youth under 18 years of age was
subject to a custodial interrogation in violation of subdivision (a),
the court shall provide the jury, or if a bench trial, the trier of fact,
with the instruction developed pursuant to subdivision (d).

(c) In determining whether an admission, statement, or
confession made by a youth under 18 years of age was voluntarily,
knowingly, and intelligently made, the court shall consider all the
circumstances surrounding the statements, including, but not
limited to, all of the following:

(1) The youth’s age, maturity, intellectual capacity, education
level, and physical, mental, and emotional health.

(2) The capacity of the youth to understand Miranda rights,
including the nature of the privilege against self-incrimination
under the United States and California Constitutions, the
consequences of waiving those rights and privileges, whether the
youth perceived the adversarial nature of the situation, and whether
the youth was aware of how begin insert legal end insert counsel could assist the youth
during interrogation.

(3) The manner in which the youth was advised of his or her
rights, and whether the rights specified in the Miranda rule were
minimized by law enforcement.

(4) The youth’s reading and comprehension level and his or her
understanding of the Miranda rights given by law enforcement.

(5) Whether there was an express or implied waiver of Miranda
rights.

(6) Whether the youth asked to speak with a parent or other
adult at any time while in law enforcement custody.

(7) Whether law enforcement offered to allow the youth to
consult with a parent or guardian prior to the interrogation, or
whether law enforcement took steps to prevent a parent or guardian
from speaking to the youth prior to interrogation.

(8) Whether the youth had been interrogated previously by law
enforcement and whether the youth invoked his or her Miranda
rights previously.

(9) Whether the youth requested to leave.

(10) Whether law enforcement either by express or implied
conduct intimated that the youth could leave after speaking, or if
any other promises of leniency were made.

(11) The manner in which the interrogation occurred, including
length of time, method of interrogation, location, number of
individuals present, the treatment of the youth by law enforcement,
the tone and manner of questioning during interrogation, whether
law enforcement personnel were in uniform, if ruses were used,
if express or implied threats were made, and if applicable, the
failure to comply with Section 627.

(12) Whether the youth consulted with begin insert legal end insert counsel prior to
waiver.

(13) Any other relevant evidence.

(d) The Judicial Council shall develop an instruction, to be used
pursuant to paragraph (3) of subdivision (b), advising that
statements made in a custodial interrogation in violation of
subdivision (a) shall be viewed with caution.

(e) For purposes of this section, “Miranda rights” refers to the
rights specified in subdivision (c) of Section 625.