BILL ANALYSIS Ó SB 1052 Page 1 Date of Hearing: June 28, 2016 Counsel: Gabriel Caswell ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair SB 1052 (Lara) - As Amended June 16, 2016 SUMMARY: Requires that a youth under the age of 18 consult with counsel prior to a custodial interrogation and before waiving any specified rights. Specifically, 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 SB 1052 Page 2 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 forth in this bill; 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; and, c) 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 a 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: SB 1052 Page 3 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; SB 1052 Page 4 aa) Whether the youth consulted with counsel prior to waiver; and, bb) Any other relevant evidence. 5)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. 6)Specifies that the provisions of this bill do not apply to the admissibility of statements of a youth under 18 years of age if both of the following criteria are met: a) The officer who questioned the suspect reasonably believed the information he or she sought was necessary to protect life or property from a substantial threat. b) The officer's questions were limited to those questions that were reasonably necessary to obtain this information. EXISTING LAW: 1)Provides that a peace officer may, without a warrant, take into temporary custody a minor. (Welf. & Inst. Code, § 625) 2)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 SB 1052 Page 5 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. (Welf. & Inst. Code, § 625, subd. (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. (Welf. & Inst. Code, § 627.) FISCAL EFFECT: Unknown. COMMENTS: 1)Author's Statement: 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. "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." SB 1052 Page 6 2)"Miranda Rights" Generally: 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 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.) SB 1052 Page 7 (5 Witkin Cal. Crim. Law Crim Trial § 107) 3)Miranda as Applied to Minors: 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. California's law on youth waiver of rights has not appreciably changed in decades. "We have not," notes California Supreme Court Justice Goodwin Liu, "extensively examined the issue of juvenile Miranda waivers since?almost a half-century ago." In re Joseph H., (2015) Case Number S227929 Cal Supreme Court, petition for review denied. Dissenting statement of Justice Liu. As the proponents have pointed out there have been a number of appreciable discoveries in the area of juveniles and cognitive development. It is now widely accepted that cognitive scientific research has shown that the capacity of youth to grasp legal concepts is less than that of adults. Youth not only have reduced capacity as compared to adults in comprehending complex legal issues, they also frequently lack the ability to appreciate the consequences of their actions. In fact, recent research has shown that 35 percent of proven false confessions were obtained from suspects under the age of 18. Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. Rev. 891, 906-907 (2004). 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. This bill further states that the fact that this requirement was not complied with should be admissible in arguments challenging any statements made by the minor. SB 1052 Page 8 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 SB 1052 Page 9 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 ) 5)Argument in Support: According to Human Rights Watch, "Human Rights Watch is honored to sponsor Senate Bill (SB) 1052. This bill recognizes both the vulnerability and potential of children and youth, and would create a process to protect their constitutional rights. If passed, a person under the age of 18 will consult with legal counsel before waiving constitutional rights. Senate Bill 1052 also provides guidance for courts in determining whether a young person's Miranda waiver was made in a voluntary, knowing, and intelligent manner as required under existing law. "Human Rights Watch is a non-profit, independent organization that exposes human rights violations and challenges governments to protect the human rights of all persons, including children and prisoners. We investigate allegations of human rights violations in some 90 countries, interviewing victims and witnesses and gathering information from governmental and other sources. "Under existing law, when a law enforcement officer conducts a custodial interrogation he or she is required to recite what is commonly called the Miranda rights, briefly describing several constitutional rights and asking whether the individual waives those rights. The waiver must be voluntarily, knowingly, and intelligently made. SB 1052 Page 10 "In California, any child under the age of 18 can relinquish his or her constitutional rights.<1> This would not change under SB 1052; instead, by providing a youth with the opportunity for consultation with counsel, the state will ensure that young people understand their rights before waiving them. Senate Bill 1052 additionally provides guidance grounded in law and science for courts to assess the validity of a waiver. These procedures will prevent Miranda 'warnings from becoming merely a ritualistic recitation wherein the effect of actual comprehension by the juvenile is ignored.'<2> "This bill is necessary because California's law on youth waiver of rights has not appreciably changed in decades. 'We have not,' notes California Supreme Court Justice Goodwin Liu, 'extensively examined the issue of juvenile Miranda waivers since?almost a half-century ago.'<3> As a result, California's current law fails to reflect 20 years of dramatic advances in knowledge about adolescent development and capacity. Cognitive scientific research has shown that the capacity of youth to grasp legal concepts is less than that of adults. -------------------------- <1> People v. Lara (1967) 67 Cal.2d 365, 389 (Lara); In re Gault (1967) 387 U.S. 1, 55. <2> Commonwealth v. A Juvenile, (Mass. 1983) 449 N.E.2d 654, 656. <3> In re Joseph H., (2015) Case Number S227929 Cal Supreme Court, petition for review denied. Dissenting statement of Justice Liu. SB 1052 Page 11 "Youth not only have reduced capacity as compared to adults in comprehending complex legal issues, they also frequently lack the ability to appreciate the consequences of their actions. In recent years, the state of California has enacted a number of laws providing safeguards for youth in the criminal justice system. These laws recognize widely-accepted developmental and neurological evidence about adolescents and young adults. Neuroscientific research finds that the process of cognitive brain development continues from childhood into early adulthood. The still-developing areas of the brain, particularly those that affect judgment and decision-making, are highly relevant to the ability to comprehend Miranda rights and the effect of giving up those rights. Courts, too, have made clear that constitutional rights must be examined in light of youthfulness. In the last 10 years, the US Supreme Court has recognized immaturity and age as factors in a series of cases determining the constitutionality of the death penalty, life without parole, sentencing practices, and Miranda custody analysis. The Supreme Court has noted that '[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.'<4> "The American Academy of Child and Adolescent Psychiatry in its policy statement, Interviewing and Interrogating Juvenile Suspects, recommends that in every case juveniles should have an attorney present during questioning by police or other law -------------------------- <4> Roper v. Simmons, (2005) 543 U.S. 551; Graham v. Florida, (2010) 130 S. Ct. 2011; Miller v. Alabama, (2012) 567 U.S. ___; JDB v. North Carolina, (2011) 131 S. Ct. 2394. SB 1052 Page 12 enforcement agencies.<5> This is a more far-reaching and restrictive policy than the one proffered by SB 1052, but it reflects the expertise of psychiatrists who know well the needs of children and youth. "Youth should be protected from the effects of their immaturity. In the situation of waiving rights, protection means simply ensuring they understand what they are doing. To argue this is not necessary would imply that youth should have lesser constitutional rights than adults, because a typical adult is capable of understanding their rights and the effect of waiving them. "Opposition has suggested that this bill will impede police work. Protecting the constitutional rights of people is, of course, one of the most important duties of police. Regardless, this bill's requirement for assistance of counsel would only be triggered in situations where Miranda warnings are mandated, and most police interactions with youth do not require Miranda warnings. Neither does the bill disallow youth from waiving their rights, as some states have done for certain age groups. Additionally, there are exceptions for situations in which Miranda would normally be required, but an officer believes that questioning a suspect is necessary to protect life or property. There, well-established existing law allows Miranda to be disregarded, and thus the requirements of -------------------------- <5> American Academy of Child and Adolescent Psychiatry, (March 7, 2013), Policy Statement: Interviewing and Interrogating Juvenile Suspects. SB 1052 Page 13 this bill would not apply.<6> "However, a real concern is the possibility of false confession. The purpose of custodial interrogation is to compel a confession. The US Supreme Court has noted the inherently coercive nature of custodial interrogation, and that the pressure can be substantial, even for adults. "Indeed, the pressure of custodial interrogation is so immense that it 'can induce a frighteningly high percentage of people to confess to crimes they never committed.'"<7> Estimates of false confessions as the leading cause wrongful convictions range from 14 to 25 percent, and a disproportionate number of false confession cases involve youth under age 18. Recent research has shown that 35 percent of proven false confessions were obtained from suspects under the age of 18.<8> " 'We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came, and the fervor with which it was defended,' the -------------------------- <6> People v. Dean, (1974) 39Cal. App.3rd 875, 882. <7> Corley v. United States, 556 U. S. __ (2009) (slip op., at 16); see also Miranda v. Arizona, 384 U. S. 436, 455, n. 23. <8> Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. Rev. 891, 906-907 (2004). SB 1052 Page 14 Supreme Court stated in the seminal case of Miranda v. Arizona. 'Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that 'illegitimate and unconstitutional practices get their first footing?by silent approaches and slight deviations from legal modes of procedure.' '<9> What we know now is that youth need the protection of a process to ensure they understand their rights, and without that process, individual rights are diminished. Thank you for your support of the constitutional rights of children and youth." 6)Argument in Opposition: According to the California District Attorneys Association. "On behalf of the California District Attorneys Association (CDAA), I regret to inform you that we are opposed to your measure, SB 1052. This bill would require that a juvenile consult with counsel prior to any custodial interrogation, and before waiving his or her rights under Miranda v. Arizona (1966) 384 U.S. 436. "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). -------------------------- <9> Miranda v. Arizona 384 U.S. 436, 459 (1966), citing Boyd v. United States, 116 U. S. 616, 635 (1886). SB 1052 Page 15 "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 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 SB 1052 Page 16 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. "For these reasons, we must respectfully oppose SB 1052." REGISTERED SUPPORT / OPPOSITION: Support Human Rights Watch (Co-sponsor) Silicon Valley De-Bug (Co-sponsor) American Civil Liberties Union Amnesty International Anti-Recidivism Coalition Asian Law Alliance SB 1052 Page 17 California Attorneys for Criminal Justice California Catholic Conference California Public Defenders Association Californians for Safety and Justice 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 Disability Rights California Ella Baker Center for Human Rights Fathers & Families of San Joaquin Felony Murder Elimination Project SB 1052 Page 18 Friends Committee on Legislation of California Healing Dialogue and Action Justice Not Jails Legal Services for Children Legal Services for Prisoners with Children NAACP - San Jose/Silicon Valley Branch National Center for Youth Law National Council on Crime and Delinquency National Juvenile Justice Network National Lawyers Guild Office of the Americas Pacific Juvenile Defender Center Peace and Justice Commission of St. Mark Presbyterian Church SB 1052 Page 19 Post-Conviction Justice Project of the USC Gould School of Law Public Counsel Services, Immigrant Rights, and Education Network Youth Justice Coalition Youth United for Community Action Opposition California District Attorneys Association California State Sheriffs' Association Los Angeles District Attorney's Office Analysis Prepared by:Gabriel Caswell / PUB. S. / (916) 319-3744 SB 1052 Page 20