BILL ANALYSIS                                                                                                                                                                                                    






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          |SENATE RULES COMMITTEE            |                       SB 1052|
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                                   THIRD READING 


          Bill No:  SB 1052
          Author:   Lara (D) and Mitchell (D)
          Amended:  5/31/16  
          Vote:     21 

           SENATE PUBLIC SAFETY COMMITTEE:  5-1, 4/19/16
           AYES:  Hancock, Anderson, Leno, Liu, Monning
           NOES:  Stone
           NO VOTE RECORDED:  Glazer

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 5/27/16
           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           SUBJECT:   Custodial interrogation:  juveniles


          SOURCE:    Human Rights Watch

          DIGEST:  This bill requires that a youth under the age of 18  
          consult with counsel prior to a custodial interrogation and  
          before waiving any specified rights.

          ANALYSIS: 
          
          Existing law:

          1)Provides that a peace officer may, without a warrant, take  
            into temporary custody a minor. (Welfare and Institutions Code  
             625)

          2)Provides that in any case where a minor is taken into  
            temporary custody on the ground that there is reasonable cause  








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            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))

          3)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:

          1)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 legal counsel.

          2)Provides that the consultation with legal counsel shall not be  
            waived.

          3)Provides that if a custodial interrogation of a minor under 18  
            years of age occurs prior to the youth consulting with legal  
            counsel, all of the following remedies shall be granted as a  
            relief for noncompliance:

             a)   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.
             b)   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.
             c)   If the court finds that youth under 18 years of age was  
               subject to a custodial interrogation in violation of the  







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               consultation with counsel requirement the court shall  
               provide the jury or the trier of fact with the specified  
               jury instruction.

          4)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:

             a)   The youth's age, maturity, intellectual capacity,  
               education level, and physical, mental and emotional health.
             b)   The capacity of the youth to understand Miranda rights,  
               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.
             c)   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.
             d)   The youth's reading and comprehension level and his or  
               her understanding of Miranda rights given by law  
               enforcement.
             e)   Whether the youth asked to speak with a parent or other  
               adult at any time while in law enforcement custody.
             f)   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.
             g)   Whether the youth had been interrogated previously by  
               law enforcement and whether the youth invoked his or her  
               Miranda rights previously.
             h)   Whether the youth requested to leave.
             i)   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.
             j)   The manner in which the interrogation occurred.
             aa)  Whether the youth consulted with counsel prior to  
               waiver.
             bb)  Any other relevant evidence.

          5)Provides that the Judicial Council shall develop an  
            instruction advising that statements made in a custodial  







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            interrogation in violation of this bill shall be viewed with  
            caution.

          Comments
          
          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 required that a person be informed of his or her  
              right to remain silent and stated that the right can be  
              waived it must be made voluntarily, knowingly and  
              intelligently.  If a person indicates that he or she  
              wishes to speak to an attorney or states that he or she  
              does not wish to be interrogated at any time in the  
              process there can be no further questioning.  "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)

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

          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  







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              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/20 
              13/Interviewing_and_Interrogating_Juvenile_Suspects.aspx) 



          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No

          According to the Senate Appropriations Committee:

           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  







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            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.  
            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.  

          SUPPORT:  (Verified  5/31/16)

          Human Rights Watch (source)
          American Civil Liberties Union
          Asian Law Alliance
          California Alliance for Youth and Community Justice
          California Attorneys for Criminal Justice
          California Catholic Conference
          California Public Defenders Association
          Campaign for youth Justice
          Center on Juvenile and Criminal Justice







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          Center on Wrongful Convictions of Youth
          Children's Defense Fund - California
          Coalition for Justice and Accountability
          Disability Rights California
          Ella Baker Center for Human Rights
          Fathers and Families of San Joaquin
          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
          San Jose/Silicon Valley NAACP
          Services, Immigrant Rights & Education Network
          SFChildrenslaw
          Silicon Valley De-Bug
          The Peace and Justice Commission of St. Mark Presbyterian Church
          Youth Justice Coalition

          OPPOSITION:   (Verified  5/31/16)
          California District Attorneys Association
          California State Sheriffs' Association 


          ARGUMENTS IN 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  







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               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.  


          ARGUMENTS IN 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,  







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               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  
               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.


          Prepared by:Mary Kennedy / PUB. S. / 
          5/31/16 20:45:42








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