In Re Gault and Juvenile Interrogation/Arrest

[wmichaeltrout]

In the State of Georgia.

Georgia. can a school resource (police) officer violate settled standards of juvenile interrogation?

it appears to me, based on many settled and cited cases in the law, notably In Re Gault, that

if a police officer is going to question a juvenile in the course of an investigation, or an arrest, that he MUST inform the juvenile's parents of the specific nature of what their child is specifically up against, AND inform both the parents AND the juvenile of the juvenile's right to counsel during such questioning

Would you say that the preceding paragraph, and the following paragraph are true?

and that these and sometimes even more careful measures must be taken to protect the rights of the juvenile

If they are true, in all states (In Re Gault is US Supreme Court), and a violation of due process has, in fact, occurred, what remedy exists for the juvenile defendant, in pretrial stage of defense? thank you for your valued counsel.

If I might add a followup question, Judge, would you consider it advisable to proceed with appointed counsel who DOES NOT appear to believe in the INNOCENCE of the defendant?

the specific case: my sister, who is disabled, and somewhat mentally diminished, was called by the school (police) resource officer. she was told that they would like to speak to my niece, 13 years old, without divulging the specific reason. my sister asked: is she in any trouble? the answer was 'not right now she is not'.

later, when my brother in law came home and my sister informed him of the call, he called the officer and asked: ' what is this about', and was told that it was 'typical high school stuff'

doesn't Gault require more specific notice of the reason for questioning? my niece was arrested and charged with sexual battery after the interrogation, and we do not really know all the details of the interrrogation, beyond what i have just outlined.

if this was in fact a violation of due process, what remedy exists? Suppression of statement? Dismissal of charges?

please help...

 

[CdwJava]

Georgia. can a school resource (police) officer violate settled standards of juvenile interrogation?

Specifically, what happened?

if a police officer is going to question a juvenile in the course of an investigation, or an arrest, that he MUST inform the juvenile's parents of the specific nature of what their child is specifically up against, AND inform both the parents AND the juvenile of the juvenile's right to counsel during such questioning

That's not what Gault held. The case was largely about due process and parental notification after the teenager was in custody. Unless state law has a statute requiring such notification, a police officer can speak to whomever he or she likes and, in general, the laws of Miranda will apply *IF* Miranda is even applicable in the situation.

Would you say that the preceding paragraph, and the following paragraph are true?

Only in part.

and that these and sometimes even more careful measures must be taken to protect the rights of the juvenile

No. In fact, many processes and procedures are relaxed with regards to juveniles. There are a number of reasons for this, but the topic is too extensive to cover adequately here.

If they are true, in all states (In Re Gault is US Supreme Court), and a violation of due process has, in fact, occurred, what remedy exists for the juvenile defendant, in pretrial stage of defense?

The defense attorney can make a motion to suppress any evidence ... perhaps move to dismiss all the charges if the violation was so egregious as to violate the defendant's due process rights. However, this is rare and highly unlikely. A minor interviewed outside the presence of his or her parents is a common occurrence, and perfectly legal everywhere that I know of.

If I might add a followup question, Judge, would you consider it advisable to proceed with appointed counsel who DOES NOT appear to believe in the INNOCENCE of the defendant?

What the defense counsel BELIEVES is not relevant. You are certainly free to hire an attorney that claims to believe his innocences if you'd like. But, the key to a good attorney is not so much that he BELIEVES, but that he acts as an advocate for his client. Sometimes there is nothing that can be done and a client is just plain guilty.

the specific case: my sister, who is disabled, and somewhat mentally diminished, was called by the school (police) resource officer. she was told that they would like to speak to my niece, 13 years old, without divulging the specific reason. my sister asked: is she in any trouble? the answer was 'not right now she is not'.

later, when my brother in law came home and my sister informed him of the call, he called the officer and asked: ' what is this about', and was told that it was 'typical high school stuff'

Anything she said that might be used against her might have a chance of being suppressed given the right circumstances.

doesn't Gault require more specific notice of the reason for questioning?

No, it does not.

my niece was arrested and charged with sexual battery after the interrogation, and we do not really know all the details of the interrogation, beyond what i have just outlined.

Her attorney can get that information (police reports, etc.) through discovery. The police are not required to give the family details of the crime. In fact, if the other party is a juvenile, they are possibly specifically prohibited by LAW to provide that information.

if this was in fact a violation of due process, what remedy exists? Suppression of statement? Dismissal of charges?

Either or both, given the right circumstances. However, I'd suspect that only a suppression of any statement she made is vulnerable ... but, that's likely a crap shoot anyway. A good attorney will be able to evaluate the evidence and recommend course of action. It might be that a plea deal to a lesser offense or some manner of deferred entry of judgment can be made. Or, maybe the case is weak ... maybe it's overwhelming ... who knows?



- Carl

 

[wmichaeltrout]

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=387&page=1

Carl, the following was an opinion issued by one of the justices in Gault:

It would indeed be surprising if the privilege against self-incrimination were available to hardened criminals but not to children. The language of the Fifth Amendment, applicable to the States by operation of the Fourteenth Amendment, is unequivocal and without exception. And the scope of the privilege is comprehensive.

"What transpired would make us pause for careful inquiry if a mature man were involved. And when, as here, a mere child Ÿ an easy victim of the law Ÿ is before us, special care in scrutinizing the record must be used. Age 15 is a tender and difficult age for a boy of any race. He cannot be judged by the more exacting standards of maturity. That which would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. This is the period of great instability which the crisis of adolescence produces. A 15-year-old lad, questioned through the dead of night by relays of police, is a ready victim of the inquisition. Mature men possibly might stand the ordeal from midnight [387 U.S. 1, 46] to 5 a. m. But we cannot believe that a lad of tender years is a match for the police in such a contest. He needs counsel and support if he is not to become the victim first of fear, then of panic. He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him. No friend stood at the side of this 15-year-old boy as the police, working in relays, questioned him hour after hour, from midnight until dawn. No lawyer stood guard to make sure that the police went so far and no farther, to see to it that they stopped short of the point where he became the victim of coercion. No counsel or friend was called during the critical hours of questioning." 76

Carl, eslewhere on this page i saw the statement that ANY proceeding which might naturally subjugate a juvenile to any punitive regimen must be considered as such, and that great care must be made to be sure that the juvenile understands.

If I, as an adult, were to be questioned, my first question might be; 'what's this about?'

if i were guilty of some crime, and aware that about that crime i was being questioned, i would certainly know better enough to exercise my rights. that's what they mean when they say it would be surprising if we didn't grant rights to children that we routinely grant to hardened criminals.

 

[CdwJava]

Note that in Gault, the state of AZ essentially deprived the lad of ALL due process rights. There was no notice, no counsel, no complaining witness, ad nauseum.

The situation as you describe in your scenario is a potential Miranda issue, nothing more. Due process was not violated by failing to notify a parent prior to questioning unless your state holds law enforcement to that standard - and I do not thing GA does so.

Children are questioned in this manner every day throughout the country. Do you really think that this sort of practice would continue if in re Gault REQUIRED parental notification? Attorneys would have picked up on that 38 years ago!

In the case of CA we are held to the federal standard, and in that case it means we do NOT have to notify parents prior to interrogation.

Here is some of the relevant CA case law (from the CA Attorney General) as it applies to law enforcement in my state:

Juvenile's Invocation or Assertion of Miranda Rights

Be aware of the following general principles:
- A minor can validly waive his Miranda rights without his parents or other adult being present. (John S. (1988) 199 Cal.App.3d 441, 445-446.)

- Peace officers have no obligation to advise a minor that he has a right to contact his parents or other adult, or to have them present during questioning--even where the parent is present and wants to confer with the minor. (John S. (1988) 199 Cal.App.3d 441, 445; Maestas (1987) 194 Cal.App.3d 1499, fns. 8 & 9.)

- A minor's request to see a parent, probation officer, or some other adult may or may not constitute an invocation of rights, depending on all the circumstances, which will be evaluated on a case-by-case basis. (Michael C. (1979) 442 U.S. 707; Hector (2000) 83 Cal.App.4th 228, 234-237; Ahmad A. (1989) 215 Cal.App.3d 528; Aven S. (1991) 1 Cal.App.4th 69).

Nowhere does it mandate that a parent MUST be notified upon interrogation. We must notify a parent within a reasonable time frame after arrest, and we must Mirandize a juvenile when they are in custody - even if we do not intend to interview them. Since we are held to the federal standard by state law, then if that standard included parental notification, then we would be required to do so.

Here is a concise summary of Gault:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0387_0001_ZS.html

- Carl

 

[wmichaeltrout]

Tell me it ain't so, Jerry.

Note that in Gault, the state of AZ essentially deprived the lad of ALL due process rights. There was no notice, no counsel, no complaining witness, ad nauseum.

The situation as you describe in your scenario is a potential Miranda issue, nothing more. Due process was not violated by failing to notify a parent prior to questioning unless your state holds law enforcement to that standard - and I do not thing GA does so.

Children are questioned in this manner every day throughout the country. Do you really think that this sort of practice would continue if in re Gault REQUIRED parental notification? Attorneys would have picked up on that 38 years ago!

In the case of CA we are held to the federal standard, and in that case it means we do NOT have to notify parents prior to interrogation.

carl, i agree with you that GA is prolly NOT among the most protective of juvenile rights, and yet, WHY then, did the resource officer bother to call my sister AT ALL??? you cops (and my dad, rip, was a cop and a warden at the Canal Zone Penitentiary [a u.s. federal institution]) are not know for making COURTESY CALLS???!!! to me it seemed like a flirt with due process, but no kiss.


Here is some of the relevant CA case law (from the CA Attorney General) as it applies to law enforcement in my state:

i was his office manager natl campaign hq in santa monica brown for president.

Tell me it ain't so, Jerry.

Juvenile's Invocation or Assertion of Miranda Rights

Be aware of the following general principles:
- A minor can validly waive his Miranda rights without his parents or other adult being present. (John S. (1988) 199 Cal.App.3d 441, 445-446.)

- Peace officers have no obligation to advise a minor that he has a right to contact his parents or other adult, or to have them present during questioning--even where the parent is present and wants to confer with the minor. (John S. (1988) 199 Cal.App.3d 441, 445; Maestas (1987) 194 Cal.App.3d 1499, fns. 8 & 9.)

- A minor's request to see a parent, probation officer, or some other adult may or may not constitute an invocation of rights, depending on all the circumstances, which will be evaluated on a case-by-case basis. (Michael C. (1979) 442 U.S. 707; Hector (2000) 83 Cal.App.4th 228, 234-237; Ahmad A. (1989) 215 Cal.App.3d 528; Aven S. (1991) 1 Cal.App.4th 69).

Nowhere does it mandate that a parent MUST be notified upon interrogation. We must notify a parent within a reasonable time frame after arrest, and we must Mirandize a juvenile when they are in custody - even if we do not intend to interview them. Since we are held to the federal standard by state law, then if that standard included parental notification, then we would be required to do so.

Here is a concise summary of Gault:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0387_0001_ZS.html

- Carl

i don't know why this isn't letting me post, keeps saying 'msg too short'

 

[The Occultist]

i don't know why this isn't letting me post, keeps saying 'msg too short'

In an effort to make sure nobody trolls the forums, there is a minimum size, in characters, that your post must be, i.e. your post, not including anything in quote tags, must be greaters than 10 characters or else it does not pass through the filter.

As for why your sister was contacted, sometimes courtesy notifications do exist.

 

[wmichaeltrout]

Im going to need to learn how to use this 'quote' feature.

I don't know how you select sections as you have to refer to in reply...

 

[wmichaeltrout]

Here is the text i was looking for ...

"It would indeed be surprising if the privilege against self-incrimination were available

to hardened criminals but not to children. The language of the Fifth Amendment,

applicable to the States by operation of the Fourteenth Amendment, is unequivocal

and without exception. And the scope of the privilege is comprehensive. As MR. JUSTICE

WHITE, concurring, stated in Murphy v. Waterfront Commission, 378 U.S. 52, 94 (1964):


"The privilege can be claimed in any proceeding, be it criminal or civil, administrative or
judicial, investigatory or adjudicatory . . . it protects any disclosures [387 U.S. 1, 48]
which the witness may reasonably apprehend could be used in a criminal prosecution or
which could lead to other evidence that might be so used." 79 (Emphasis added.)"

Doesn't the language above: '...privelege can be claimed in any proceeding' include the proceeding of interrogation?

 

[CdwJava]

i don't know why this isn't letting me post, keeps saying 'msg too short'

When you reply with a Quote, highlight text you want to separate as a quote, and click the little, yellow text bubble above this frame. Then, the text to be quoted (set apart) will be bracketed by two html tags for the beginning of the quote "

" and the end, "

(note the slash mark for the closing quote).

carl, i agree with you that GA is prolly NOT among the most protective of juvenile rights, and yet, WHY then, did the resource officer bother to call my sister AT ALL???

Probably to talk to her about the incident. Cops do that - they talk to people - even kids. When I was a Resource Officer, I used to talk to kids in the office on a daily basis about stuff they might or might not have been involved in. It's what they do.

you cops (and my dad, rip, was a cop and a warden at the Canal Zone Penitentiary [a u.s. federal institution]) are not know for making COURTESY CALLS???!!! to me it seemed like a flirt with due process, but no kiss.

Call it what you want, but it's legal and it is NOT a violation of due process ... at least no case law exists to consider a lack of parental notification as such just yet.

If I had to guess, I'd say the officer was investigating a complaint from another student and he called your sister in to talk to her about the incident and get her side of things. He likely did not have her dead to rights until she 'fessed up or corroborated what was said earlier. However, maybe there was enough evidence even without her admission.

In any event, because of her age - and depending on GA law - an attorney might be able to get any admission tossed. If she is clinically "mentally diminished" to such a point where a doctor can explain that she would say anything to please, or could not understand the proceedings, then any statement might be able to be tossed. Maybe.

In any event, if your sister had been the victim of an assault, wouldn't YOU want the police to investigate? That's what they do.

i was his office manager natl campaign hq in santa monica brown for president.

Tell me it ain't so, Jerry.

So far he hasn't managed to screw us ... yet. Heaven help us from (ex) Governor Moonbeam!

- Carl

 

[CdwJava]

Doesn't the language above: '...privelege can be claimed in any proceeding' include the proceeding of interrogation?[/B]

The privelege against self-incrimination can be claimed in any proceeding ... but, this is not the case here. Nowhere do you state that your sister requested counsel and was refused.

- Carl

 

[wmichaeltrout]

If my sister would have been properly advised of the proceeding...

i understand that the police may lie to elicit information during an interrogation, that seems well settled.

but if you received the call she received, and were as unsophisticated as she was in the situation, and were misled to believe that her daughter 'was not in any trouble yet', and that this was about 'typical high school stuff', and then your minor child (way minor: 13) subsequently scribbled a three sentence statement, one of which was extremely self incriminating, would you believe that was justice in action?

in fact, with the suppression of this single statement, any law student could probably defend her in this case, as there is no evidence (because there was no crime), but the statement of her 14 year old best friend, the alleged victim.

there was an incident of consensual sexual play between 4 minors, at 5pm, in broad daylight, the total time transpired i'm guessing little more or less than five minutes, so close to the front door of the local police department, that in the arrest warrant, the place recorded as the scene of the crime was the address of the police department.

nothing adds up in this story, and yet, my 13 year old niece is being charged as an adult over an exagerrated set of circumstances. i'm terrified. if any attorney reading this practices in the se atlanta area, and would be willing to advise on this case on a reduced fee basis (my sister is 100 % disabled and my brother in law's salary cannot begin to touch the fees of $25000 - $55000 that i have been quoted) please contact me. my options are set to accept private messages on this website, and i am authorized to solicit legal counsel on behalf of my niece.

 

[wmichaeltrout]

If my sister would have been properly advised of the proceeding...

I know this msg has more than 10 characters; what gives... ?

When you reply with a Quote, highlight text you want to separate as a quote, and click the little, yellow text bubble above this frame. Then, the text to be quoted (set apart) will be bracketed by two html tags for the beginning of the quote " (note the slash mark for the closing quote).


Probably to talk to her about the incident. Cops do that - they talk to people - even kids. When I was a Resource Officer, I used to talk to kids in the office on a daily basis about stuff they might or might not have been involved in. It's what they do.

Call it what you want, but it's legal and it is NOT a violation of due process ... at least no case law exists to consider a lack of parental notification as such just yet

.

well, if i can't find case law to support these positions, i hope i can find an attorney with sharp teeth and thick skin to blaze a new trail.


If I had to guess, I'd say the officer was investigating a complaint from another student and he called your sister in to talk to her about the incident and get her side of things. He likely did not have her dead to rights until she 'fessed up or corroborated what was said earlier. However, maybe there was enough evidence even without her admission.

In any event, because of her age - and depending on GA law - an attorney might be able to get any admission tossed. If she is clinically "mentally diminished" to such a point where a doctor can explain that she would say anything to please, or could not understand the proceedings, then any statement might be able to be tossed. Maybe.

In any event, if your sister had been the victim of an assault, wouldn't YOU want the police to investigate? That's what they do.

"i told you, i have mixed feelings about police. my dad was a cop, and a great man. on the other hand, i was once falsely accused of a minor crime, which if the cops on the scene would have followed up on my pleas to take five minutes to talk to the bouncer at the club RIGHT NEXT TO THE POLICE STATION (recurring theme), i would have never had to fire a public pretenter in open court and save myself pro se. investigations and investigatory techniques should be thorough and honorable.

melanie had a line in a song:

if you win by taking, you might lose your chance to win"

So far he hasn't managed to screw us ... yet. Heaven help us from (ex) Governor Moonbeam!

"Jerry's a pretty sharp guy. I'm sure he will serve honorably, whether or not he always pleases those on the right, or those on the left."

mike


- Carl

 

[CdwJava]

i understand that the police may lie to elicit information during an interrogation, that seems well settled.

Within limits, sure. But, even then, if an incriminating statement is made based upon something elicited because of a blatant or compelling lie, the statement can still be suppressed.

but if you received the call she received, and were as unsophisticated as she was in the situation, and were misled to believe that her daughter 'was not in any trouble yet', and that this was about 'typical high school stuff', and then your minor child (way minor: 13) subsequently scribbled a three sentence statement, one of which was extremely self incriminating, would you believe that was justice in action?

I would be far more concerned about her guilt or innocence - in other words, the TRUTH, and not the process. Besides, while I might not LIKE the process, it is likely perfectly lawful.

One has to ask, WHY would she admit to doing it if she did not? A defense attorney has to answer this one, and the answer is usually not compelling enough to get it tossed. But, you never know.

in fact, with the suppression of this single statement, any law student could probably defend her in this case, as there is no evidence (because there was no crime), but the statement of her 14 year old best friend, the alleged victim.

A statement is evidence. And if your sister admitted to committing the crime, then there seems to be a problem here.

Oh, and I doubt that you know all the evidence in the matter, so there may be more than just the statement of the friend/victim.

In any event, even if she is not charged criminally, she could still be expelled from the school for the act. The school does not have to abide by a prosecutor's decision to file or not.

there was an incident of consensual sexual play between 4 minors, at 5pm, in broad daylight, the total time transpired i'm guessing little more or less than five minutes,

That could still constitute a crime. Depending on the ages, "Consent" is not an issue because at these young ages they cannot legally consent to ANY sexual act. And if it was your sister that committed the act (whatever it was) then she could be charged.

nothing adds up in this story, and yet, my 13 year old niece

Wait ... you said she was your sister in the original post??? What gives?

is being charged as an adult over an exagerrated set of circumstances.

Exaggerated in your opinion - apparently NOT in the opinion of the investigators, and, apparently the DA. And, I would venture to guess, not in the opinion of the victim's family, either.

i'm terrified. if any attorney reading this practices in the se atlanta area,

Attorneys do not troll this site for clients.

- Carl

 

[CdwJava]

I know this msg has more than 10 characters; what gives... ?

The quoted text does not count.

well, if i can't find case law to support these positions, i hope i can find an attorney with sharp teeth and thick skin to blaze a new trail.

Some trails lead off the cliff. Unless there is a Miranda violation here, or the case has some holes to exploit, then there is no new trail to blaze. The credibility of the victim on the stand will play a big part at trial - as will the victim's credibility ... IF she takes the stand (and her attorney probably won't let her). The statement, if incriminating, could be damning. Her attorney might be best advised to take a deal.

But, that's between her and her parents, and the attorney.

on the other hand, i was once falsely accused of a minor crime,

I was once accused of a major crime - a residential burglary. On another occasion I was taken down at gunpoint because my car looked that which had been used in an armed robbery only minuted earlier. So, I know what it's like to be on the other side of the coin. But! I understood how the assumption could be made.

Jerry's a pretty sharp guy. I'm sure he will serve honorably, whether or not he always pleases those on the right, or those on the left.

I hope so. I have never doubted his integrity, though I have almost consistently disagreed with his political views. Though he has always seemed to be a likable enough fellow.

- Carl

 

[wmichaeltrout]

Yes, the TRUTH; and not a mischaracterization of the truth

morning carl.

by now you have gone back and reviewed my first post, like i did, and have seen that i did too say my niece was the accused. my sis is the parent.

help me pick this apart a little further, if you will...

my dad, the warden, always brought us up to tell the truth, because that's the right thing to do.

i have heard no dispute that some sexual play occurred that day (weds, mar 28, 2007). what is wrong is to characterize it as sexual battery. it was four willing teens engaging in a consensual, experimental sexual liason. yes, given the opportunity, all four should have been punished by their respective parents, received an update on their sexual education, and possibly even been referred to professional counseling.

but those parental rights have been usurped and hijacked by a system and a process gone mad.

anyways, you said a miranda issue might exist, depending on the circumstances. on the day my niece was questioned, she was pulled out of her classroom and taken to a solitary room without benefit of counsel, her parents, or an adult friend. i think you could characterize this proceeding as one that happened 'in custody'. she certainly did not feel as though she could leave.

i don't know enough further details to state at this time, don't know if the interrogation was recorded or taped or videotaped, etc...

she claims that she did ask for 'her mommy', and was very scared by the circumstance.

hey, what do you mean attorneys don't read this site???? i thought that was the whole point of this site???!!!