BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 1052 (Lara) - Custodial interrogation: juveniles ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: March 28, 2016 |Policy Vote: PUB. S. 5 - 1 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: May 16, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 1052 would require a youth under 18 years of age to consult with counsel prior to a custodial interrogation and before the waiver of any Miranda rights, as specified. This bill provides that the consultation may not be waived. Fiscal Impact: Local law enforcement agencies : Major non-reimbursable local costs, potentially in the millions of dollars (Local Funds) annually to provide legal counsel to minors prior to custodial interrogations, to the extent local law enforcement agencies (482 cities and 58 counties) incur additional costs to provide counsel and/or incur operational delays. The DOJ Juvenile Justice in California report indicates nearly 87,000 juvenile arrests reported in 2014. A portion of these costs could potentially be subject to Proposition 30 funding requirements (General Fund*). Department of Corrections and Rehabilitation (CDCR) : One-time costs of up to $50,000 (General Fund) to revise regulations. SB 1052 (Lara) Page 1 of ? Ongoing minor costs of $37,000 (General Fund) annually to the Division of Juvenile Justice (DJJ) to have legal counsel available for DJJ youth. The DJJ has indicated an average of six DJJ youth subject to custodial interrogation per month. California Highway Patrol : Minor, absorbable costs (Special Fund**) to modify juvenile interrogation policy and training. Court instruction : Minor one-time cost (General Fund***) to the Judicial Council to develop the court instruction, as specified. Court workload : No significant impact estimated to ongoing court workload (General Fund***) resulting from this measure. Proposition 30* : Exempts the State from mandate reimbursement for realigned responsibilities for "public safety services" including the provision of services for, and supervision of, juvenile offenders. However, legislation enacted after September 30, 2012, that has an overall effect of increasing the costs already borne by a local agency for public safety services applies to local agencies only to the extent that the State provides annual funding for the cost increase. The provisions of Proposition 30 have not been interpreted through the formal court process to date, however, to the extent local agency costs to county probation and sheriff departments resulting from this measure are determined to be applicable under the provisions of Proposition 30, could potentially result in additional costs to the State. **Motor Vehicle Account ***Trial Court Trust Fund Background: 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. (Welfare and Institutions Code (WIC) § 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 SB 1052 (Lara) Page 2 of ? interrogation, and his right to have counsel appointed if he is unable to afford counsel. (WIC § 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. (WIC § 627.) In the case of In re Joseph H (2015) 237 Cal.App.4th 517, 535, Justice Goodwin Liu protested the Court's vote against hearing a case in which a 10-year-old was deemed capable of waiving his right to remain silent. His dissenting statement reads, in part, as follows: I write to explain why I believe this case merits our review. Petitioner Joseph H., at age 10, shot and killed his sleeping father and then confessed to a police detective during a custodial interview. A video recording of the interview shows Joseph sitting on a couch next to his stepmother, Krista McCary, whose husband Joseph had just killed. Riverside Police Detective Roberta Hopewell sat in an adjacent chair; she was courteous and not overbearing. At the beginning of the interview, Detective Hopewell informed Joseph of his Miranda rights, and he purported to waive them. (Miranda v. Arizona (1966) 384 U.S. 436.) In a published opinion, the Court of Appeal found that "Joseph's responses indicated he understood" his Miranda rights and that he validly waived his rights "despite his young age, his ADHD, and low-average intelligence." In 2011, Joseph was one of 613 children under the age of 12 arrested for a felony in California. This case raises an important legal issue that likely affects hundreds of children each year: whether and, if so, how the concept of a voluntary, knowing, and intelligent Miranda waiver can be meaningfully applied to a child as young as 10 years old. A Miranda waiver, to be valid, must be "made voluntarily, knowingly and intelligently." The waiver must be made "with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." In assessing the validity of a waiver, a reviewing court must "conduct an independent review of the trial court's legal determination" of "whether the Miranda waiver was voluntary, knowing, and SB 1052 (Lara) Page 3 of ? intelligent under the totality of circumstances surrounding the interrogation." Juveniles, like adults, may waive their Miranda rights. Yet Miranda waivers by juveniles present special concerns. The United States Supreme Court has affirmed the "commonsense" conclusion that "children 'generally are less mature and responsible than adults'; that they 'often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them'; that they 'are more vulnerable or susceptible to . . . outside pressures' than adults. Addressing the specific context of police interrogation, we have observed that events that 'would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.' The "very real differences between children and adults" must be factored into any assessment of whether a child validly waived his Miranda rights. "When a juvenile's waiver is at issue, consideration must be given to factors such as 'the juvenile's age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.' " It is not uncommon for California courts to find valid Miranda waivers by children 15 years old or older. There are also cases finding valid Miranda waivers by 14-year-olds. In People v. Lewis (2001) 26 Cal.4th 334, 384-385, this court found a valid Miranda waiver by a 13-year-old. And I have found one published case upholding a Miranda waiver by a 12-year-old. Apart from this case, there does not appear to be any California decision upholding a Miranda waiver by a child younger than 12. The one published case to address a Miranda waiver for a child in this age range, In re Michael B. (1983) 149 Cal.App.3d 1073, 1084-1086, concluded that the waiver by a nine-year-old was invalid? Here the petition for review and supporting letters contend that as a matter of "social science and cognitive science" as well as "what 'any parent knows'-indeed, what any person knows-about children generally," it is doubtful that Joseph understood or was capable of understanding the nature of Miranda rights and SB 1052 (Lara) Page 4 of ? the consequences of waiving those rights? Having reviewed the transcript and video of the interview, I believe the issue of whether Joseph validly waived his Miranda rights subsumes several questions worthy of our review: (1) whether there is an age below which the concept of a voluntary, knowing, and intelligent waiver has no meaningful application, (2) whether and, if so, how the Miranda warnings and waiver decision can realistically be made intelligible to very young children, and (3) what role parents, guardians, or counsel should play in aiding a valid waiver decision by such children, and under what conditions a parent or guardian would be unable to play that role? In evaluating whether this case merits our review, I note that other state high courts have addressed these issues by formulating standards and procedures specific to young children. [adopting a "bright-line rule" that "[w]hen the juvenile is under the age of fourteen, the adult's absence will render the young offender's statement inadmissible as a matter of law-unless the adult is truly unavailable, in which case, the voluntariness of the waiver should be determined by considering the totality of circumstances"]. We have not extensively examined the issue of juvenile Miranda waivers since our decision in Lara almost a half-century ago? Lara also predates by several decades the growing body of scientific research that the high court has repeatedly found relevant in assessing differences in mental capabilities between children and adults? Although we are barred from adopting an exclusionary rule that is not required by the federal Constitution, whether federal constitutional law requires the type of safeguards that other courts have adopted for children as young as Joseph is a question that neither the high court nor this court has examined?The proper application of Miranda to children in Joseph's age range likely affects hundreds of cases each year, even though few such cases result in a trial and appeal. For these reasons, I vote to grant review. Finally, it bears mention that consideration of special safeguards for young children need not await judicial action. Many states have found the issue worthy of legislative SB 1052 (Lara) Page 5 of ? attention. Our Legislature may wish to take up this issue in light of this court's decision not to do so here. This bill seeks to respond to Justice Liu's invitation to the Legislature to address this issue. Proposed Law: This bill would require a youth under 18 years of age to consult with counsel prior to a custodial interrogation and before the waiver of any Miranda rights, as specified. This bill provides that the consultation may not be waived. Additionally, 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 relief for noncompliance: Requires the court to consider the effect of failure to comply and the following factors when adjudicating the admissibility of statements of a youth under 18 years of age made during or after a custodial interrogation: o The youth's age, maturity, intellectual capacity, education level, and physical, mental, and emotional health. o 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. o The manner in which the youth was advised of SB 1052 (Lara) Page 6 of ? his or her rights, and whether the rights specified in the Miranda rule were minimized by law enforcement. o The youth's reading and comprehension level and his or her understanding of the Miranda rights given by law enforcement. o Whether there was an express or implied waiver of Miranda rights. o Whether the youth asked to speak with a parent or other adult at any time while in law enforcement custody. o 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. o Whether the youth had been interrogated previously by law enforcement and whether the youth invoked his or her Miranda rights previously. o Whether the youth requested to leave. o 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. o 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 SB 1052 (Lara) Page 7 of ? 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 WIC § 627. o Whether the youth consulted with counsel prior to waiver, and any other relevant evidence. Specifies that provided the evidence is otherwise admissible, the failure to comply with the provisions of this bill 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 a youth under 18 years of age was subject to a custodial interrogation in violation of the bill's provisions, requires the court to provide the jury, or if a bench trial, the trier of fact, with the instruction developed pursuant to this bill. Requires the Judicial Council to develop an instruction, as specified, advising that statements made in a custodial interrogation in violation of this bill's provisions shall be viewed with caution. Provides that for purposes of this section, "Miranda rights" refers to the rights specified in WIC § 625(c). Specifies numerous uncodified legislative findings and declarations. Recommended Amendments: While not specifically referenced, the author may wish to consider an amendment to add the word "legal" to all references to counsel in the bill if the intent is to provide juveniles with attorney representation in lieu of advice from parents, guardians, or other adults. SB 1052 (Lara) Page 8 of ? -- END --