BILL ANALYSIS Ó
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 1052 (Lara) - Custodial interrogation: juveniles
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|Version: March 28, 2016 |Policy Vote: PUB. S. 5 - 1 |
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|Urgency: No |Mandate: No |
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|Hearing Date: May 16, 2016 |Consultant: Jolie Onodera |
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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.
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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
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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
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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
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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
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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
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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
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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.
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