How Does SB395 Give Juveniles Extra Miranda Protection?

There is no doubt that a juvenile, if in custody and facing a uniformed police officer asking questions, wearing a gun, who is experienced and perhaps even angry about a particular crime, can be intimidated more easily than an adult in the same situation.  When such juveniles are interrogated, they are generally easier for police to elicit a confession.  Some may argue that this atmosphere is conducive to coerced confessions for a juvenile.

The juvenile may never have been in custody before and the experience of being locked into a jail cell for several hours can be much more traumatic than for an adult.  Indeed, psychologists and human development experts agree that minors are generally less capable than adults of understanding both their Miranda rights (broadly thought of as the right to an attorney, the right to remain silent and the right against self-incrimination) and the consequences of waiving them.  See, e.g. J.D.B. v. North Carolina (2011) 564 U.S. 261, 272-273 (“no matter how sophisticated, a juvenile subject of police interrogation cannot be compared to an adult subject”)(quoting Gallegos v. Colorado (1962) 370 U.S. 49, 54).

Our legislature has recognized this in Senate Bill 395, which Governor Jerry Brown signed into law in October, 2017.
The new law is intended to protect juvenile offenders from involuntarily and unknowingly waiving their Miranda rights during a custodial interrogation. It amends California’s Welfare & Institutions Code to add section 625.6 to require that minors under age 15 consult with an attorney in person, by phone or by video prior to a custodial interrogation and before waiving any Miranda rights.  The minor cannot waive the consultation.

The bill also provides guidelines for judges in considering whether to admit or suppress juvenile statements made during and after custodial interrogation.

However, section 625.6(c) makes it clear that the consultation with an attorney requirement does not affect the existing public safety exception under Miranda: consultation with counsel is not required where the officer reasonably believes the information sought is necessary to protect life or property from imminent threat and the officer’s questions are limited to those reasonably necessary to obtain that specific information.
Subsection (d) also provides an exception for probation officers, stating that probation officers need not make available such a consultation when performing their normal duties.

One should note that age 15 is the bright line for having a consultation with an attorney before any interrogation.  A suspect age 16 would not be afforded such a consultation.
We think this is an excellent amendment to the Welfare & Institutions Code, but wish the threshold age were 18.  In our experience, there are many, many sixteen, seventeen and even eighteen-year olds who lead sheltered lives, cocooned in the world of their protective parents and who have the maturity / naivete of a thirteen, fourteen or fifteen-year-old.  They trust police officers and often believe that if they admit their crime, police will release them home to their video games, YouTube and Snapchat.  The law is a good start, but it does not go far enough.

For more information about juvenile interrogation issues, please click on the following articles:
  1. Detective Use of “False Choice” Interrogation Technique of Juvenile Ruled Coercive; Confession Ruled Involuntary and Juvenile Adjudication Reversed
  2. What Is Home on Probation (HOP) in a Juvenile Case?
  3. What Is the WIC 654 Program for Juveniles Accused of Crimes?
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