March 1, 2000
INTERROGATION OF MINORS-PRESENCE OF PARENTS OR GUARDIANS
By: George Coppolo, Chief Attorney
You asked whether New York prohibits the interrogation of 16, 17, and 18 year olds unless their parent or guardian is present. You also asked what the situation is in other states.
New York does not prohibit police from interrogating 16, 17 or 18 year olds unless their parent or guardian is present. It does provide certain protections for children under 16 years of age who are taken onto custody. We describe these protections below.
We did not find any states that prohibit the interrogation of 18 year olds unless a parent or guardian was present. But we found two states with laws that prohibit police from interrogating 16 or 17 year olds before they have had the chance to consult with a parent or guardian (Alabama and Arkansas). And we found six states with laws requiring in one way or another that a parent or guardian be present before police can interrogate a 16 or 17 year old (Colorado, Hawaii, Missouri, Maine, North Carolina, and North Dakota).
In addition, we found court decisions in three states that establish similar rules for 16 and 17 year olds under constitutional provisions relating to self-incrimination (Indiana, Pennsylvania, and Vermont).
As soon as a police officer arrests a child under 16 years of age and takes him into custody he must make every reasonable effort to notify a parents or other person legally responsible for the child's care (McKinney's Family Court Act, § 305.2).
The child may not be questioned unless he and his parents or other person legally responsible for his care been advised of the child's right to remain silent and request to have an attorney. (McKinney's Family Court Act, § 305.2).
The police must make responsible efforts to notify a parent or other person legally responsible for the child's care and give them an opportunity to be present. A violation by the police bars the admission of any statement the child makes. If the police have made reasonable efforts to notify the parents or other legally responsible person, their absence at the time of questioning does not automatically bar the admission of any statement the child makes. Their absence at the time of questioning is one factor the court considers to determine whether the statements were made voluntarily. (Regle v. Castro 462 N.Y.S. 2d 369 (1983); Practice Commentaries to McKinney's Family Court Act § 305.2).
Police can only question the child in a facility the chief court administrator designates as a suitable place to question a child or, upon the parent's request, in the child's residence. (§ 305.2 (4) (6) and 305.2 (51)). The questionary must be limited to a reasonable time period (Bell v. Lennor, 971 F. Supp. 830, 832 (S.D. N.Y., 1997)).
Failure to comply with the statute's requirement regarding the location of questioning does not result in rule automatically mandating the suppression of all statements taken outside a designated facility. But it requires that this be considered when judging the reasonableness of the police questioning and the voluntaries of the confession, statement, or admissions (In the Matter of Jennifer M., 509 N.Y.S. 2d 935, 937 (1986); In Matter of Kenneth C. 479 N.Y.S. 2d 396 (Fam. Court, Kings Co., 1984)).
Alabama law gives children the right to communicate with their attorney, parent, or guardian before being questioned while in custody. (ARJP Rule 11). The rule applies to children under 18 years of age (Burks vs State, 600 So 2d 374 Ala. Comm. App 1991).
Law enforcement officials may not question a child who has been taken into custody for a delinquent act or a crime if the child has indicated in any manner that he wants to talk with a parent or guardians or have them present (9-27-317 Ark. Code as amended by 1999 Act 1192, SB 505). The rule applies to children under 18 years of age.
No statement or admission a child makes as a result of a custodial interrogation concerning delinquent acts is admissible against him unless his parent, guardian, or legal or physical custodian was present and was advised of the child's right to counsel and to remain silent (19-2- 511 C.R.S.A § 19-2-511). Statements or admissions can be used as evidence even if no parent, guardian, or custodian was present, if the court finds that, under the totality of circumstances, the child made a knowing, intelligent, and voluntary waiver of rights and:
1. the child was 18 or older when he was interrogated or he misrepresented his age and the police acted in good faith reliance on the misrepresentation when they interrogated him;
2. the child is emancipated, or
3. the child is a runaway from another state and is “of sufficient age and understanding”.
No statement made by a child as a result of a custodial interrogation by a police officer may be admitted into evidence unless the state shows that the child was first informed that he could have his parents or another adult present during the questioning (Hawaii Family Court Rule 142). The rule applies to children under 18 years of age (HRS § 571-2). The child may waive this right if he does so expressly and “with understanding” (Hawaii Family Court Rule 142).
When a child is taken into custody he must be advised prior to questioning that he has a right to have a parent, guardian, or custodian present during questioning (Mo. Stat. 211.059). But a parent's absence does not make a resulting statement illegal per se (State v. Barnaby 950 S.W. 2d 1,3 (1997)). The rationale for requiring that a child be allowed to confer with a friendly adult prior to a police interrogation is to help ensure that the child understands the consequences of his confession and his rights (State v. Barnaby 950 S.W. 1 (1997)). The rule covers children under age 18.
When a child has been arrested, no law enforcement officer may question him unless the child's legal custodian is present or has given permission for the questioning to occur without his presence (15 MRSA § 3203-C2).
The only exception is if the police have been unable to contact the custodian after making reasonable efforts to do so and they want to question the child about continuing or imminent criminal activity. The rule covers children under 18 years of age (15 MRSA § 3003).
North Carolina law requires that any child in custody must be advised prior to questioning that he has the right to have a parent, guardian, or custodian present during the questioning (NC ST § 7B-2101 (a), and NC ST § 7A-595 (a)). This rule applies to children under 18 years old.
If the child is under 14 years of age, custodial admissions or confessions resulting from interrogations may be admitted into evidence only if the child's parent, guardian, custodian, or attorney was present (NC ST § 7B-2101 (b); NC ST § 7A-595 (b)).
North Dakota requires that counsel be provided for any child in custody if he is not represented by his parents, guardian, or custodian (ND ST 27-20-26). The law covers children under 18 years old who are unmarried or not in military service. It also covers a child under age 20 for delinquent acts committed while under the age of 18 (ND ST 27-20-02).
The Indiana Supreme Court had held that a child's statement or confession cannot be used against him unless (1) both he and his parents or guardian were informed of their right to remain silent and (2) the child had the opportunity to consult with his parents, guardian, or attorney (Lewis v. State 288NE 2d 138 (1972)).
Subsequently, Indiana passed a law specifying that a child's right to an attorney and to remain silent may be waived only by the child's parents, guardian, or custodian. The parent, guardian, or custodian can waive these rights only if he has no interest adverse to the child's, meaningful consultation has occurred between him and the child, and the child knowingly and voluntarily agrees with the waiver (In. St. 31-25-5-1).
We found no statue giving children the right to have a parent or guardian present during a custodial police interrogation. But the Pennsylvania Supreme Court has held that a child's confession will be suppressed if he waived his rights to an attorney and to remain silent without first having the opportunity to consult with an interested and informed parent, adult, or counsel (Commonwealth v. Markle 380 A2d, 346, (1977) Commonwealth v. Smith A2d 797 (1977)).
The Vermont Supreme Court has interpreted their state constitution as giving children the right to consult with an interested, informed, and independent adult prior to a custodial interrogation by police (In Re E.T.C. 141 Vt 375, 449 A2d 937(1982)).
Under the Vermont Constitution, Chapter I, Article 10, a child may waive his privilege against self-incrimination and his right to counsel only if the following conditions have been met:
1. the must be given the opportunity to consult with an adult;
2. the adult must be genuinely interested in the child's welfare and completely independent from and disassociated with the prosecution (e.g. a parent, legal guardian, or attorney representing the child); and
3. the adult must be informed and aware of the rights guaranteed to the child.
Statements or confessions made in violation of these requirements are not allowed in a proceeding against the child. The rule applies to children under 18 years of age (State v. Piper, 468 A2d 554 (1983)).