BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1052 Hearing Date: April 19, 2016
-----------------------------------------------------------------
|Author: |Lara |
|-----------+-----------------------------------------------------|
|Version: |March 28, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|MK |
| | |
-----------------------------------------------------------------
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
SB 1052 (Lara ) Page
2 of ?
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.
SB 1052 (Lara ) Page
3 of ?
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.
SB 1052 (Lara ) Page
4 of ?
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
SB 1052 (Lara ) Page
5 of ?
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:
SB 1052 (Lara ) Page
6 of ?
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.
SB 1052 (Lara ) Page
7 of ?
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
SB 1052 (Lara ) Page
8 of ?
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.
SB 1052 (Lara ) Page
9 of ?
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)
SB 1052 (Lara ) Page
10 of ?
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
SB 1052 (Lara ) Page
11 of ?
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
SB 1052 (Lara ) Page
12 of ?
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.
-- END -