How hard could it be to protect the children? For crying out loud, they’re children! Children?!? So the brain trust in California enacted SB 395, because laws fix everything.
On October 11, 2017, Governor Jerry Brown signed into law SB 395, a bill requiring that youth 15-years-old or younger cannot be questioned in what is known as a custodial interrogation, without first consulting a lawyer—either in person, by telephone, or by video conference. The bill prohibits a kid from waving Miranda rights without such a consultation. Furthermore, the young person may not waive that consultation with the lawyer either.
The law makes an exception when a police officer “who questioned the youth reasonably believed the information he or she sought was necessary to protect life or property from an imminent threat.”
The notion is straightforward, that a minor 15 or younger is incapable of waiving his right to remain silent without advice of counsel. And, indeed, it shouldn’t be particularly controversial to recognize that kids are no match for cops when it comes to the ability to get them to talk. Between the Reid Technique, submission to the shield and plain old fear, what youngster is going to tell a cop that he’s not talking?
But as with all clear, simple solutions, complexity rears its ugly head. Certainly a cop should be able to speak with a young person in the ordinary course of an investigation, as would any adult. Would it make sense to prohibit a cop from asking a witness to a child being harmed who did it? Where did he go? What happened here? Crazy talk, obviously, and so the prohibition is limited to custodial interrogations, since they are, of course, the evil against which this law is directed.
It only took Jackie Lacey, the Los Angeles district attorney, one minute to figure out a way around this fix.
Don’t want to have to wait until counsel appears, and allows, a custodial interrogation? Then poof, make it non-custodial. Problem solved?
While the LA D.A.’s office said that the brief—which was written by Devallis Rutledge, a veteran prosecutor and former Santa Ana PD officer, who now serves as Special Counsel to District Attorney Jackie Lacey’s office—is a routine teaching tool, defense attorneys and other legal professionals we spoke with were less willing to dismiss its affect as routine.
“Here’s the thing,” said civil rights attorney Ron Kaye when asked about the D.A.’s brief. “Police officers are trained to in any way possible to obtain an incriminating statement. That’s their goal. And district attorneys fight tooth and nail to demonstrate that the statements provided by a suspect were voluntary, and that the suspect was not in custody, and didn’t trigger any kind of prophylactic measure that would have prevented the admission of an incriminating statement.”
The goal of the “prophylactic measure” is no mystery, and it certainly isn’t surprising given that young people are particularly vulnerable to police efforts to obtain an incriminating statement.
“Here the premise is that, scientifically speaking, juveniles are far more prone to provide false confessions” than adults, “and they are much more prone to being manipulated to provide statements that are incriminating that don’t necessarily reflect the truth.”
“So its manipulative and abusive to tell law enforcement how they should try to extract an incriminating statement from this population” without appropriate protections.
“It’s essentially taking the entire premise of the legislation and ignoring it. And that causes me concern,” said Kaye.
They aren’t “ignoring it,” but exploiting the otherwise reasonable gap to circumvent the law. The job of cops and prosecutors is to get the bad dude, and this law adds a level of effort that makes their job more difficult. As the lege gave them an easy out, they seized upon it. Is it wrong of the district attorney’s office to use their mad legal skillz to advise police how to do their job as effectively as possible? What if that means telling them how to avoid a well-justified law for the protection of young people who are particularly susceptible to manipulation, both in the waiver of their right to remain silent as well as giving false confessions?
The question isn’t whether kids 15 and younger are vulnerable to police machinations. This has been overwhelmingly established. But should the culture of law enforcement be to undermine laws based on sound science and public policy because it makes them more effective, their job easier?
But writing a law to effectuate a good idea isn’t as easy.
“It is beyond dispute,” wrote Sotomeyor [sic], “that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.”
A cop doesn’t need to beat a kid with a rubber hose to get him to confess. All he has to do is ask. To expect a young person to be able to refuse to answer questions, to feel free to leave, is absurd. More to the point, most purported non-custodial interrogations are non-custodial in appearance only. Try walking away and see how well the officer reacts to your totally proper assertion of your right to be left alone. Now consider a youngster doing that.
But does SB 395 solve the problem? Is the DA undermining the law by exploiting its terms to its own advantage? Perhaps the California lege would have done better to change its law to prohibit the introduction into evidence of any confession or admission against penal interest of any person age 15 or younger without advice of counsel. Better still, perhaps Justice Sotomayor could put some teeth into her empathetic admonition.
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