Police Interrogation of Minors in California – The Rules

Minors accused of juvenile crimes in California have the right to remain silent and to be read a “Miranda warning” before being interrogated.

The Miranda warning is the one often heard on television and in the movies:

• You have the right to remain silent.
• Anything you say can and will be used against you in a court of law.
• You have the right to an attorney.
• If you cannot afford an attorney, one will be provided for you.¹

A child may waive Miranda rights, but only if:

• The waiver is voluntary,² and
• In the case of a child age 17 or under, the child first consulted with a lawyer.³

If either of these conditions was violated — or if the child was not given a Miranda warning at all — any confession the child makes will be inadmissible to prove the minor’s guilt during a California juvenile adjudication hearing or a criminal trial.

To help you better understand the rights of a minor child during a juvenile interrogation, our California criminal defense lawyers discuss the following, below:

• 1. What is a Miranda warning?
• 2. Can police ever question a juvenile without reading a Miranda warning?
• 3. What is the effect of a Miranda warning?
• 4. How does someone invoke the right to remain silent?
• 5. Can a child waive his or her Miranda rights?
  • 5.1. A waiver must be voluntary
  • 5.2. Children under 18 must consult with a lawyer before waiving Miranda rights
• 6. Do parents have to consent before the police can question their child?
• 7. Do parents have the right to be present when their child is interrogated?
• 8. What should my child do if he/she is arrested?
• 9. Does my child have Miranda rights at school?
• 10. What remedies are there if a juvenile’s Miranda rights are violated?
• 11. Can a minor sue if his or her Miranda rights were violated?
• 12. What other constitutional rights do juveniles have?

1. What is a Miranda warning?

“Miranda warnings” advise people who are arrested of their Fifth Amendment right against self-incrimination. They are the result of the famous United States Supreme Court case Miranda v. Arizona.

In Miranda, the Supreme Court held that law enforcement must advise people of certain rights before a “custodial interrogation.”

These rights are usually described as follows:

• You have the right to remain silent.
• Anything you say can and will be used against you in a court of law.
• You have the right to an attorney.
• If you cannot afford an attorney, one will be provided for you.⁴

What is a “custodial interrogation”?

A custodial interrogation is one in which a person:

• Is not free to leave, and
• Is being asked questions designed to illicit an incriminating response.

Unlike what is often see on TV, the police do not normally need to give Miranda warnings as soon as they arrest someone. Based on the Supreme Court ruling in Miranda, rights must only be read if and when they begin interrogating a suspect who is in custody.

But California law gives greater rights to juvenile suspects. Under California law, police must give a Miranda warning anytime they take someone underage into custody — even if they don’t intend to question the minor.⁵

When is a child considered to be “in custody”?

A child is considered in custody if he or she:

• Is deprived of his or her freedom in any significant way, or
• Has a reasonable belief that he or she is not free to leave.⁶

2. Can police ever question a juvenile without reading a Miranda warning?

California law requires a Miranda warning any time a law enforcement officer takes someone under 18 into custody.

But the police can question anyone briefly — including a minor — without giving a Miranda warning. This is known as a “Terry Stop,” after the U.S. Supreme Court holding in Terry v. Ohio. ⁷

A Terry Stop is legal if an officer has a “reasonable suspicion” of criminal activity. “Reasonable suspicion is a lower standard than the “probable cause” an officer needs to arrest someone.⁸

Example: A sheriff’s deputy in Mission Viejo discovers broken glass and wet gang graffiti on a building. A block away he comes across teenagers Alex and Bobby who are carrying large backpacks and wearing the gang’s colors.

The officer suspects that Alex and Bobby may be guilty of violating Penal Code 594, California’s vandalism law. He stops and asks them what they are doing. The officer does not need to give the boys a Miranda warning because they are free to go.

But let’s say that based on their answers, the officer decides to arrest Alex and Bobby and place them in temporary custody at Orange County Juvenile Hall. As soon as the cop places the boys under arrest he must read them their Miranda rights – even if he never asks them another question.

3. What is the effect of a Miranda warning?

After reading a Miranda warning, the police will ask if the suspect understands his or her rights. If the suspect says “yes,” the officer will ask whether the suspect wishes to talk.

If the suspect invokes his right to remain silent, the officer must stop asking questions.

But if the suspect talks or agrees to talk, he or she waives the right to remain silent. Anything he or she says afterward can be used to prove the suspect’s guilt in court.

Generally speaking, once Miranda rights have been waived, they have been waived for good. The police don’t need to “re-Mirandize” the suspect in order to continue an interrogation later.⁹

4. How does someone invoke the right to remain silent?

No special words are required to invoke the right to remain silent. But a suspect must affirmatively invoke this right.¹⁰ Simply remaining silent is not enough.

Example: The police arrest 16-year old Avery for an alleged violation of Penal Code 240, California’s “assault” law. Avery tells the police he wants to call his mother. The police tell him he can do so as soon as he tells them what happened. They then question Avery for an hour, after which he “confesses.”

The police have probably not violated Avery’s Miranda rights because it is not clear why he asked to call his mother.

But… if Avery had said he wanted to call his mother so she could call a lawyer for him that would be different. Or he could have specifically said he was invoking his right to right to remain silent.

5. Can a child waive his or her Miranda rights?

A child may waive Miranda rights, but only if the waiver is voluntary. And, as we discuss in Section 5.2, below, in California a child aged 17 or younger may not waive Miranda rights unless the child has consulted with a lawyer.

The prosecutor bears the burden of proving that a waiver was voluntary. The prosecutor must prove this by a “preponderance of the evidence.”¹¹

“Preponderance of the evidence” means it is more likely than not that it was a voluntary confession.  Lawyers sometimes refer to this standard as “50% and a feather.”

5.1. A waiver must be voluntary

In deciding whether a minor’s confession is voluntary, a judge will look at the “totality of the circumstances.” ¹²

Factors the court will consider include:

• Did the police physically harm or threaten to harm the child?¹³
• Did the police threaten to arrest or jail the suspect’s family members? ¹⁴
• Did detectives promise a more lenient sentence in exchange for a confession?¹⁵
• Did the officers deny the suspect the right to see a lawyer or to remain silent? ¹⁶
• Did officers deny the child sleep, water, food and/or use of the toilet? ¹⁷
• Was the interrogation unrelenting or unduly lengthy? ¹⁸

If the answer to one or more of these questions is “yes,” a confession might not be voluntary.

5.2. Children under 18 must consult with a lawyer before waiving Miranda rights

California law prohibits police from interrogating a child 17 or younger in custody until the child has consulted with a lawyer.¹⁹

The consultation may take place in person, by telephone, or by video conference. Neither the child nor his parent may waive this consultation. ²⁰

Exception for an imminent threat

Law enforcement may question a child 17 or younger before the child has consulted with a lawyer if:

1. The officer reasonably believes the information is necessary to protect life or property from an imminent threat, AND
2. The officer’s questions are limited to those that are reasonably necessary to obtain that information.²¹

Also, the law does not apply to a probation officer during the normal performance of his or her duties.²²

6. Do parents have to consent before the police can question their child?

No. In California, the police may generally question minors without their parents’ consent.

But, as noted above, a juvenile interrogation must be voluntary. If a child asks to have a parent present and the request is denied, a judge may decide the child’s participation was not voluntary.

7. Do parents have the right to be present when their child is interrogated?

No. Parents have no constitutional right to be present when their children are interrogated. Therefore it is often up to the child to protect his or her rights.

But police can be tricky. With few exceptions, they are not a child’s friend.  If they suspect a juvenile child of a crime, their job is to build a case against that child.

We recommend, therefore, that children politely decline to answer a cop’s questions – other than to give their name – without first speaking to a lawyer.

Are my conversations with my child private when he or she is custody?

Often the police will let a parent visit a child in custody. Such visits are not private.

Police interrogation rooms often have secret video and/or audio recording equipment.

So even when officers lets parents have “time alone” with their child, the conversation might be monitored. Anything the child or parent says can then be used against the child in court.

For this reason, we recommend calling an experienced California juvenile defense lawyer before seeing your child. Conversations between clients and lawyers are privileged. This means that they are privileged and cannot be used to incriminate the child.

But if the police bring a minor to a juvenile hall such as Riverside Juvenile Hall, the probation officer must give both the minor and his or her parents the Miranda warnings

8. What should my child do if he/she is arrested?

There are steps a child can take to protect him- or herself if stopped by the police or arrested. In the first instance, the child should:

• Be polite and not resist.

• Remain calm and not panic.

• Give his or her name.

If the child is arrested, the child should continue to be polite but should also:

• Be aware that the cop is not a friend.
• Ask for a parent.
• Ask for a lawyer.
• State clearly that he/she is invoking the right to remain silent.
• Never, under any circumstances, confess or write an “apology” letter.

9. Does my child have Miranda rights at school?

Minors have constitutional rights even when they are at school. This includes the right to be given a Miranda warning if being questioned by the police while in custody on school grounds.

But the issue of whether a child is in custody when questioned by police at school is a thorny one.

Children are not generally free to leave school grounds during school hours. So many lawyers –our California juvenile criminal defense lawyers included — believe children must be read Miranda rights before being questioned at school.

Courts have not always taken this position, however. Rather, in deciding whether a child is free to leave, a judge will consider the “totality of the circumstances.”

One factor that may tip the balance is the child’s age.

A child’s age and the Supreme Court decision in J.D. B. v. North Carolina.

The United States Supreme Court considered school interrogations in a 2011 case called J.D. B. v. North Carolina.  In the J.D.B. case, the police interrogated a 13-year-old at school on suspicion of burglary. They did not give the child a Miranda warning first.

The Supreme Court did not decide whether the child was in custody. Rather they sent the case back to the trial court with the instruction to take the child’s age into account. The court reasoned that:

“[C]hildren will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave… So along with other factors, the age of a child might necessitate a Miranda warning.”

Example: The Riverside County Sheriff’s Office is called after heroin is found in the boys’ bathroom at a local junior high. Someone tells the officers that Jerry, a 12-year old, was seen coming out of the bathroom just before they drugs were found.

The officers call Jerry into a conference room and lock the door. They do not give him a Miranda warning. Instead, they tell Jerry that he’ll be in serious trouble if he doesn’t answer their questions.

Jerry asks to talk to his mother, but his request is denied. After an hour of questioning, Jerry confesses that the drugs were his.

A juvenile judge decides that Jerry did not understand that he could leave. As a result, he should have been given a Miranda warning. And since Jerry wasn’t read his rights, his “confession” is not admissible.

10. What remedies are there if a juvenile’s Miranda rights are violated?

The general remedy for a Miranda violation is for the court to exclude any subsequent statements from the prosecution’s case-in-chief. But unless the confession was coerced, it may still be used to impeach the suspect.

Let’s take a closer look at the differences between the various possible scenarios.

Use of a confession for impeachment

If Miranda rights were violated, a subsequent confession cannot be used as part of the prosecution’s main case.

But unless the confession was coerced, the prosecutor can still use it to impeach the suspect’s testimony.²³ This means if the suspect changes his/her story at trial, the statement(s) can be used to try to prove that he or she is lying.

Example: A security guard at Target catches 14-year-old Callie with unpaid makeup in her jacket pocket. She tells him she planned to pay for the makeup, but he doesn’t believe her. Instead he calls the police and Callie is arrested under Penal Code 459.5 PC California’s law against shoplifting .

The officer does not read Callie a Miranda warning. Callie then tells the officer she is sorry for taking the makeup and begs him not to arrest her.

A prosecutor cannot use Callie’s apology to prove she is guilty of shoplifting. But if Callie were to testify that she never had any makeup in her pocket, the prosecutor could use the apology to impeach her testimony.

A coerced confession cannot be used for any purpose

A coerced confession is considered more serious than other Miranda violations. A confession that is coerced must be excluded from a trial for all purposes.

Example: Daniel is arrested for possession of cocaine under Health and Safety Code 11350. The officers read him his Miranda rights. Daniel then invokes his right to remain silent and asks to speak to a lawyer.

The officers leave Daniel in a room alone for the next three hours. When he asks to use the bathroom, they refuse his request because he is being “uncooperative.” Daniel then “confesses” to the crime.

At Daniel’s adjudication hearing, Daniel denies he has ever used cocaine. The prosecutor tries to introduce Daniel’s “confession” in order to prove that Daniel is lying. But because the “confession” was coerced, the prosecutor cannot use it for any purpose.

What happens if a minor changes his or her statement at trial?

Sometimes a minor will allegedly make an incriminating statement but then deny it at his or her California juvenile adjudication hearing. When this happens, the prosecutor can ask for a continuance (a “time-out”).

The judge will then halt the proceedings for seven days. This allows the prosecutor to subpoena the officer who supposedly heard the statement in the first place.²⁴

The officer will then be allowed to testify about the alleged statements. But if the police did not properly “Mirandize” the child, the child’s California juvenile defense lawyer may be able to get the testimony excluded.

11. Can a minor sue if his or her Miranda rights were violated?

In general, failure to give a Miranda warning does not give someone the right to sue for damages. But other Miranda violations may give rise to the right to file a civil lawsuit for:

• Police misconduct in California,and/or
• A Section 1983 civil rights violation.²⁵

A lawsuit for violation of Miranda rights can result in the recovery of compensatory damages such as medical bills and emotional distress. And in very serious cases of Miranda violations, a minor might also be able to recover punitive damages in California.

12. What other constitutional rights do juveniles have?

Technically, the juvenile delinquency system is part of the civil law system and not the criminal justice system.

But as we discuss in our related article, Juvenile Criminal Defense in California, a juvenile adjudication can have serious consequences. Minors can be sent to juvenile hall or the California Youth Authority.

So minors in the juvenile court system are entitled to constitutional protections to make sure their rights are not violated.

Rights that juveniles DO have in California

Rights that juveniles in California have include:

• The Fourth Amendment right against unreasonable searches and seizures.
• The right to call a parent when detained.

• The right to call an attorney when detained.
• The right to be notified of the charges against him/her.
• The right to an attorney.
• The Sixth Amendment right to a speedy trial.
• The right to call and cross-examine witnesses at trial.
• The Fifth Amendment right against self-incrimination.
• The right against cruel and unusual punishment

Rights that minors in California DO NOT have

There are certain rights that adults have but minors do not.  These include:

• The right to bail, and
• The right to a jury trial.

In re Gault case

The rights of kids in the juvenile justice system were set forth in an important 1967 United States Supreme Court case. The case — In re Gault — arose out of the arrest of a 15-year-old boy in Arizona.

The minor (Gerard Gault) was charged with making a lewd phone call to a neighbor. Law enforcement arrested and detained him, but never notified his parents. The petition against him did not contain any facts. After the merest semblance of a trial, he was sent to a juvenile facility.

Gault and his lawyers took the case all the way to the United States Supreme Court. The court held that that like adults, minors are entitled to “due process of law” and many other constitutional protections.¹²

Thanks to the Gault case, as well as other court cases and statutory provisions, children in the California juvenile system have the rights set forth above.

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