BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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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