New law regarding Miranda Rights
Most everyone has heard of their “Miranda Rights.” But what do they actually mean? Based on the questions we get every day, most people don’t really understand their right to remain silent. If they did, far fewer people would make statements to the police.
If educated adults don’t understand their rights, what about kids?
In California, they did something about it. In 2017, Governor Brown signed SB395, which requires that minors 15 years old and younger consult with an attorney before they can waive their “Miranda Rights.” This was followed up by SB 203, which requires all youth under the age of 18 to consult with an attorney before waiving their constitutional rights during a custodial interrogation.
According to Elizabeth Calvin, Senior advocate of the Children’s Rights Division of Human Right Watch, a sponsor of SB395, children are “less able than adults to understand complex legal ideas, like what it means to give up the right to remain silent” These laws recognize this fact and provides protections for kids that find themselves being questioned by the cops.
This is a major step in the right direction. False confessions and admissions are a real problem, especially for young people. Police officers are trained in interrogation techniques. These techniques are designed to overcome a person’s resolve, cause them to question their innocence, and elicit an admission.
As skilled interviewers and cross-examiners, we can often get a child to say almost anything we want. Children, in particular, are taught to respect elders and authority figures. It is no surprise that a child would admit to something this is not true simply because a police officer suggests that it is true. After all, kids believe in Santa Claus and the tooth fairy because adults tell them to.
The Constitutional right to remain silent is a very important constitutional right designed to protect citizens from government overreach. It has long been acknowledged that the government can impose interview techniques – such as the Reid techniques- that are solely designed to elicit admissions and confessions. Further, the law does not require the police to be honest with you. For example, they can tell you that they have DNA or witnesses that they don’t have to get you to try to explain how that can be and say something that can be used against you.
While every agency will handle this differently, the bottom line will be that the police can’t talk to minors under the age of 18 without the actual benefit of legal counsel.
Any competent criminal defense attorney will advise their client to assert their 5th amendment privilege (the right to remain silent) – at least until they have had a chance to review the evidence. While law enforcement may not like these new rules, it is important that anyone, especially children, consult an attorney before ever talking to the police.