BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 1052       Hearing Date:    April 19, 2016    
          
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          |Author:    |Lara                                                 |
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          |Version:   |March 28, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                    Subject:  Custodial Interrogation:  Juveniles



          HISTORY

          Source:   Human Rights Watch

          Prior Legislation:None

          Support:  Asian Law Alliance; California Alliance for Youth and  
                    Community Justice; California Attorneys for Criminal  
                    Justice; California Catholic Conference; California  
                    Public Defenders Association; Children's Defense Fund  
                    - California; Center on Juvenile and Criminal Justice;  
                    Center on Wrongful Convictions of  Youth; Children's  
                    Defense Fund-California; Coalition for Justice and  
                    Accountability; Ella Baker Center for Human Rights;  
                    First Focus Campaign for Children; Friends Committee  
                    on Legislation of California; Justice Not Jails; Law  
                    Office of Jeremy D. Blank; Legal Services for  
                    Prisoners with Children; National Center for Youth  
                    Law; National Council on Crime and Delinquency;  
                    National Lawyers Guild; Pacific Juvenile Defender  
                    Center; Services, Immigrant Rights & Education  
                    Network; The Peace and Justice Commission of St. Mark  
                    Presbyterian Church; San Jose/Silicon Valley NAACP;  
                    Services, Immigrant Rights, and Education Network;  
                    Silicon Valley De-Bug; SFChildrenslaw; Youth Justice  







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                    Coalition; 2 individuals

          Opposition:California District Attorneys Association; California  
          State Sheriffs' Association

                                                


          PURPOSE

          The purpose of this bill is to require that a youth under the  
          age of 18 consult with counsel prior to a custodial  
          interrogation and before waiving any specified rights.
          
          Existing law provides that a peace officer may, without a  
          warrant, take into temporary custody a minor. (Welfare and  
          Institutions Code  625)

          Existing law provides that in any case where a minor is taken  
          into temporary custody on the ground that there is reasonable  
          cause for believing that such minor will be adjudged a ward of  
          the court or charged with a criminal action, or that he has  
          violated an order of the juvenile court or escaped from any  
          commitment ordered by the juvenile court, the officer shall  
          advise such minor that anything he says can be used against him  
          and shall advise him of his constitutional rights, including his  
          right to remain silent, his right to counsel present during any  
          interrogation, and his right to have counsel appointed if he is  
          unable to afford counsel. (Welfare and Institutions Code  625  
          (c))

          Existing law provides that when a minor is taken into a place of  
          confinement the minor shall be advised that he has the right to  
          make at least two telephone calls, one completed to a parent or  
          guardian, responsible adult or employer and one to an attorney.  
          (Welfare and Institutions Code  627)

          This bill provides that prior to a custodial interrogation and  
          before the waiver of any Miranda rights, a youth under 18 years  
          of age shall consult with counsel.

          This bill provides that the consultation with counsel shall not  
          be waived.
           








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          This bill provides that if a custodial interrogation of a minor  
          under 18 years of age occurs prior to the youth consulting with  
          counsel, all of the following remedies shall be granted as a  
          relief for noncompliance:
                 The court shall, in adjudicating the admissibility of  
               statements of youth under 18 years of age made during or  
               after a custodial interrogation, consider the effect of  
               failure to comply with the consultation to counsel  
               requirement and factors set in subdivision (c) of the  
               section.
                 Provided the evidence is otherwise admissible, the  
               failure to comply with the consultation with counsel  
               requirement 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.
                 If the court finds that youth under 18 years of age was  
               subject to a custodial interrogation in violation of the  
               consultation with counsel requirement the court shall  
               provide the jury or the trier of fact with the specified  
               jury instruction.

          This bill provides that 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 circumstances surrounding the statement,  
          including, but not limited to all of the following:

                 The youth's age, maturity, intellectual capacity,  
               education level, and physical, mental and emotional health.
                 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 counsel could assist the youth during interrogation.
                 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.
                 The youth's reading and comprehension level and his or  
               her understanding of Miranda rights given by law  
               enforcement.
                 Whether the youth asked to speak with a parent or other  
               adult at any time while in law enforcement custody.








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                 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.
                 Whether the youth had been interrogated previously by  
               law enforcement and whether the youth invoked his or her  
               Miranda rights previously.
                 Whether the youth requested to leave.
                 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.
                 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 the 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 the requirement that the  
               juvenile receive two phone calls, one to a parent or  
               guardian and one to an attorney.
                 Whether the youth consulted with counsel prior to  
               waiver.
                 Any other relevant evidence.

          This bill provides that the Judicial Council shall develop an  
          instruction advising that statements made in a custodial  
          interrogation in violation of this bill shall be viewed with  
          caution.

          This bill provides that for purposes of this bill "Miranda  
          rights" refers to the rights specified in Welfare and  
          Institutions Code Section 625(c).

          This bill makes a number of uncodified legislative declarations  
          and findings regarding   developmental and neurological sciences  
          as it pertains to the interrogation of a minor.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  








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          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:









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              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.

                                         COMMENTS

          1.  Need for This Bill
          
          According to the author:


               Currently in California, children-no matter how young-  
               can waive their Miranda rights. When law enforcement  
               conducts a custodial interrogation, they are required  
               to recite basic constitutional rights to the  
               individual, known as Miranda rights, and secure a  
               waiver of those rights before proceeding. The waiver  
               must be voluntarily, knowingly, and intelligently made.  
               Miranda waivers by juveniles present distinct issues.  
               Recent advances in cognitive science research have  
               shown that the capacity of youth to grasp legal rights  
               is less than that of an adult. 



               Although existing law assures counsel for youth accused  
               of crimes, the law does not require law enforcement and  
               the courts to recognize that youth are different from  
               adults. It is criticalto ensure a youth understands  
               their rights before waving them and courts should have  
               clear criteria for evaluating the validity of waivers. 

                









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               Recently an appellate court held that a 10 year old boy  
               made a voluntary, knowing, and intelligent waiver of  
               his Miranda rights. When the police asked if he  
               understood the right to remain silent, he replied,  
               "Yes, that means that I have the right to stay calm."  
               The California Supreme Court declined to review the  
               lower court's decision. Several justices disagreed, and  
               in his dissenting statement Justice Liu suggests the  
               Legislature should address the issue, stating that  
               California law on juvenile waivers is a half-century  
               old and, "predates by several decades the growing body  
               of scientific research that the [U.S. Supreme Court]  
               has repeatedly found relevant in assessing differences  
               in mental capabilities between children and adults."



               SB 1052 will require youth under the age of 18 to  
               consult with legal counsel before they waive their  
               constitutional rights. The bill also provides guidance  
               for courts in determining whether a youth's Miranda  
               waiver was made in a voluntary, knowing, and  
               intelligent manner as required under existing law.  

          2.  Miranda v. Arizona
          
               In Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct.  
               1602, 16 L.Ed.2d 694, the Court (5-4) decided four  
               cases (Miranda v. Arizona, Vignera v. New York,  
               Westover v. United States, and California v. Stewart)  
               and imposed new constitutional requirements for  
               custodial police interrogation, beyond those laid down  
               [previously].

                                         ***

               The Court's decision may be "briefly stated" as  
               follows: "[T]he prosecution may not use statements,  
               whether exculpatory or inculpatory, stemming from  
               custodial interrogation of the defendant unless it  
               demonstrates the use of procedural safeguards effective  
               to secure the privilege against self-incrimination.  By  
               custodial interrogation, we mean questioning initiated  
               by law enforcement officers after a person has been  








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               taken into custody or otherwise deprived of his freedom  
               of action in any significant way.  As for the  
               procedural safeguards to be employed, unless other  
               fully effective means are devised to inform accused  
               persons of their right of silence and to assure a  
               continuous opportunity to exercise it, the following  
               measures are required.  Prior to any questioning, the  
               person must be warned that he has a right to remain  
               silent, that any statement he does make may be used as  
               evidence against him, and that he has a right to the  
               presence of an attorney, either retained or appointed.   
               The defendant may waive effectuation of these rights,  
               provided the waiver is made voluntarily, knowingly and  
               intelligently. If, however, he indicates in any manner  
               and at any stage of the process that he wishes to  
               consult with an attorney before speaking there can be  
               no questioning.  Likewise, if the individual is alone  
               and indicates in any manner that he does not wish to be  
               interrogated, the police may not question him.  The  
               mere fact that he may have answered some questions or  
               volunteered some statements on his own does not deprive  
               him of the right to refrain from answering any further  
               inquiries until he has consulted with an attorney and  
               thereafter consents to be questioned." (86 S.Ct. 1612,  
               16 L.Ed.2d 706.) (5 Witkin Cal. Crim. Law Crim Trial   
               107)

          3.  Minors and Miranda

          Under this bill, a youth under 18 years of age would be required  
          to consult with counsel prior to waiving his or her rights under  
          Miranda.   The right to counsel cannot be waived.

          If the requirement that the minor consult with counsel before  
          waiving his or her rights is not met the court shall weigh  
          specified factors in determining whether it is admissible.  If  
          it is admitted then a jury instruction, as created by Judicial  
          Council should be read that will advise that statements made in  
          a custodial interrogation in violation of this bill should be  
          viewed with caution.  The bill further states that the fact that  
          the requirement in this bill was not complied with should be  
          admissible in arguments challenging any statements made by the  
          minor.









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          4.  American Academy of Child and Adolescent Psychiatry

          In a Policy Statement dated March 7, 2013 the American Academy  
          of Child and Adolescent Psychiatry expressed its beliefs that  
          juveniles should have counsel present when interrogated by law  
          enforcement:

               Research has demonstrated that brain development  
               continues throughout adolescence and into early  
               adulthood.  The frontal lobes, responsible for mature  
               thought, reasoning and judgment, develop last.   
               Adolescents use their brains in a fundamentally  
               different manner than adults. They are more likely to  
               act on impulse, without fully considering the  
               consequences of their decisions or actions.

               The Supreme Court has recognized these biological and  
               developmental differences in their recent decisions on  
               the juvenile death penalty, juvenile life without  
               parole and the interrogations of juvenile suspects. In  
               particular, the Supreme Court has recognized that there  
               is a heightened risk that juvenile suspects will  
               falsely confess when pressured by police during the  
               interrogation process.  Research also demonstrates that  
               when in police custody, many juveniles do not fully  
               understand or appreciate their rights, options or  
               alternatives. 
                
               Accordingly, the American Academy of Child and  
               Adolescent Psychiatry believes that juveniles should  
               have an attorney present during questioning by police  
               or other law enforcement agencies. While the Academy  
               believes that juveniles should have a right to consult  
               with parents prior to and during questioning, parental  
               presence alone may not be sufficient to protect  
               juvenile suspects. Moreover, many parents may not be  
               competent to advise their children on whether to speak  
               to the police and may also be persuaded that  
               cooperation with the police will bring leniency. There  
               are numerous cases of juveniles who have falsely  
               confessed with their parents present during  
               questioning?. [citations omitted]  
               (https://www.aacap.org/aacap/policy_statements/2013/Inte 
               rviewing_and_Interrogating_Juvenile_Suspects.aspx)








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          5.  Support
          
          The National Center for Youth Law supports this bill stating:

               Currently, youth in California can waive their Miranda  
               rights on their own, as long as the waiver is made in a  
               voluntary, knowing, and intelligent manner. Yet  
               research demonstrates that young people often fail to  
               comprehend the meaning of Miranda rights.  Even more  
               troubling is the fact that young people are unlikely to  
               appreciate the consequences of giving up those rights.   
               They are also more likely than adults to waive their  
               rights and confess to crimes they did not commit.

               Widely accepted research concludes that young people  
               have less capacity to exercise mature judgement and are  
               more likely than adults to disregard the long-term  
               consequences of their behavior.  Over the last 10  
               years, the United States and California Supreme Courts,  
               recognizing that developmental abilities of youth are  
               relevant to criminal culpability and the capacity to  
               understand procedures of the criminal justice system,  
               have enunciated a new jurisprudence grounded in this  
               research.

               Moreover, courts have noted that young people are more  
               vulnerable than adults to interrogation and have a  
               limited understanding of the criminal justice system.  
               These problems are amplified for youth who are very  
               young, or who have developmental disabilities,  
               cognitive delays or mental health challenges.  A recent  
               study of exonerations found that 42 percent of  
               juveniles had falsely confessed as compared to just 13  
               percent of adults. The ramifications for both the  
               individual and society of soliciting unreliable  
               evidence and false confessions are far-reaching?.

               People who work closely with youth and help them  
               navigate legal decision-making know that a young person  
               can understand the literal meanings of Miranda rights,  
               but fail to appreciate the implications of giving up  
               those rights.  Some youth are persuaded to give  
               statements because they believe doing so will reduce  








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               the likelihood of "getting into trouble."  They are  
               left feeling betrayed by interrogation tactics  
               permitted and perhaps appropriate for adult suspects,  
               but overwhelming for youth.  These experiences can  
               leave youth traumatized for years and harm trust in law  
               enforcement and the justice system.

          6. Opposition
          
          According to the California District Attorneys Association:

               We believe that the procedure sought by this bill  
               would frustrate criminal investigations and cast doubt  
               upon voluntary confessions introduced at trial.

               As subdivision (c) of Section 1 of the bill notes,  
               juveniles already receive a more generous  
               interpretation of Miranda rights, in that the court  
               must take the juvenile's age, education, and  
               immaturity into account when considering whether there  
               has been a valid Miranda waiver.  (Fare v. Michael C.  
               (1979) 442 U.S. 707, 725).  

               SB 1052 would expand those protections even further,  
               by mandating a consultation between a juvenile and an  
               attorney - a consultation that the juvenile is  
               prohibited from waiving.  Failure to follow this  
               procedure would result in a host of sanctions designed  
               to undermine the credibility of any statements made by  
               the juvenile, regardless of whether any actual  
               coercion took place.

               To illustrate one such problem with this approach,  
               consider the following example.  A juvenile is  
               arrested, and properly advised of his Miranda rights.   
               While in custody, and being transported to the police  
               station, he makes statements incriminating himself, or  
               perhaps even confesses to the crime for which he has  
               been arrested.  Upon reaching the police station, the  
               juvenile consults with counsel, per the mandate in SB  
               1052.

               According to the language of the bill, this would be a  
               "failure to comply" since the statement was made in a  








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               custodial setting prior to the juvenile consulting  
               with counsel.  Under proposed Welfare & Institutions  
               Code section 625.6(b)(2), this failure" would be  
               admissible in support of a claim that the statement  
               was made in violation of the juvenile's Miranda  
               rights, was involuntary, or is unreliable.  
               That, of course, is simply untrue.  There was no  
               violation of the juvenile's Miranda rights, as he was  
               properly advised of them, and the court is already  
               required to consider the additional factors pertaining  
               to juveniles under Fare.  The only "right" that was  
               arguably violated was this new statutory right under  
               WIC 625.6 - and even then, the arresting officers  
               attempted to comply at the first available  
               opportunity.  Unless every officer is going to have a  
               defense attorney at his or her side when taking  
               juveniles into custody, it's unclear how this would  
               work in practice.

               Given the additional protections in place to guard  
               against unlawfully obtained juvenile confessions, we  
               believe this bill creates an unworkable and costly  
               process that would frustrate our criminal justice  
               system.



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