By: Frances Prizzia | Criminal Justice Reform

Effective at the beginning of 2018, California law now requires that any juvenile under the age of 16 be permitted to consult with a lawyer prior to any custodial interrogation and even before they can be asked if they wish to waive their Miranda rights, which are the well-known rights a person of any age must waive prior to custodial questioning. The law was based on a growing understanding of the neurological and developmental sciences of the significant differences between adolescent and adult brains. These differences include a lesser ability to avoid detrimental decisions and greater susceptibility to outside pressures. The law also realized that children generally have a more limited understanding of the criminal justice system than adults. Thus, as a general rule, adolescents are less likely to comprehend the meaning or consequences of waiving their rights and submitting to an interview with police.

A violation of a person’s Miranda rights is a violation of the United States Constitution and therefore almost always requires suppression of the statements obtained in violation of Miranda. Proposition 8, known as the Truth-in-Evidence law, which was enacted by voters in 1992 forbids a court from excluding relevant evidence obtained in violation of a person’s rights unless exclusion is required by the Federal Constitution. In other words, police officers can violate a person’s rights under California law or the California Constitution and, unless they also violate the person’s Federal Constitutional rights, the evidence will still be admissible. The only way around this is if the California legislature creates an exception to Prop. 8, which requires a “super-majority” of two-thirds votes in both houses.

Unfortunately, Senate Bill 395, which created the right of juveniles to consult with a lawyer prior to a custodial interrogation did not receive the supermajority necessary to create such an exception. As such, it is what we lawyers call a “right without a remedy.” It does not mandate exclusion for statements taken in violation of the statute. Instead, it simply directs courts to consider the failure to comply in a totality of the circumstances analysis as to whether a juvenile’s Miranda waiver was knowing, intelligent, and voluntary.

Last month, the first published decision dealing with a violation under the new statute, held that the minor’s statement was admissible despite the violation. In People v. Anthony L., Division 2 of the First Appellate District, all but gutted SB-395. Holding that the child’s interrogation was custodial and the officers failed to comply with the requirement that they allow him to speak to a lawyer before obtaining a waiver of his Miranda rights, the court nevertheless relied on Prop. 8 to find that the statement was admissible. Ironically, the court stated, “We also emphasize that our decision is not intended to neuter section 625.6’s requirement that youths of 15 years or younger consult with legal counsel before a custodial interrogation.” In fact, they did just that. History has proven that law enforcement is hostile to Miranda and if given an inch, will take a mile.

This decision underscores the need to either repeal Prop. 8 so that Californians can effectively govern the conduct that they wish to deter by law enforcement or to find the two-thirds votes needed in each house to create an exception to Prop. 8 and give the very justified requirements of SB-395 actual deterrent effect by making statements taken in violation of those requirements inadmissible.

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