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 especially conducive to coerced confessions for a juvenile that would otherwise not take place in a less intimidating environment.
The Point of This Article:  A custodial interrogation for a juvenile suspected of committing a crime can be especially conducive to an involuntary confession, as juveniles are generally less capable of understanding the significance of waiving their Miranda rights.  Senate Bill 395 is designed to protect juveniles in such situations by, with certain exceptions, requiring a consultation between an attorney and a juvenile before any interrogation can proceed.
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, even though the adult may have greater responsibilities in life.  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).  We believe this is simply because youths just have fewer life experiences to reference, so waiving one’s Miranda rights for a youth is not as appreciated by a juvenile as it is by an adult for its gravity.

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, in which case such a consultation with counsel is not required because the officer reasonably believes the information sought is urgently needed (fast) 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 under SB395, a suspect age 15 and under is the bright line requirement for law enforcement to providing 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 age 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.  Senate Bill 395 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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