BILL ANALYSIS Ó
SB 1052
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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
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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:
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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;
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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
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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."
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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.)
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(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.
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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
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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.
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"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.
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"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.
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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.
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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).
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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).
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"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
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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
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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
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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
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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
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