Protect Kids During Police Questioning

Section Two amends FCA § 305.2(4)(a) t.o state that when law enforcement has notified an arrested child's pare t or PLR and reasonably believes that the parent or PLR will appear for the child, law enforcement shall take that child to his home, the station house, or another agreed upon location to release him to his parent or PLR.

Section Three amends FCA § 305.2(4)(b) to state that when law enforce- ment does not reasonably believe that an arrested child's parent or PLR will appear for the child, law enforcement shall take that child to family court or, if family court is not in session, to the designated magistrate for the child's initial appearance under FCA § 307.4.

Section Four amends FCA § 305.2(4)(c) to conform with other amended subsections and clarify that an arrested child shall only be taken to detention if the officer did not release the child or bring the child to family court or the designated magistrate.

Section Five amends FCA § 305.2(5) by deleting a clause related to the circumstances of questioning, which is moved to the new FCA § 305.2(7) (see Section Seven, below).

Section Six amends FCA § 305.2(6) for conformity only, by deleting the phrase "In all other cases."

Section Seven amends and renumbers FCA § 305.2(7) to FCA § 305.2(8) and adds a new FCA § 305.2(7) which clarifies that an officer may determine that questioning of a child is necessary only when the officer "reason- ably determines that the child's life or health, or the life or health of another individual, is in imminent danger and that the child may have information that would assist the officer in taking protective action." Section Seven also amends FCA § 305.2(8) to state that no child shall be questioned under this section unless and until "the child has consulted with an attorney in person, by telephone, or by video conference," and establishes that this consultation may not be waived.

Section Eight creates FCA § 305.2(9), which. establishes that when law enforcement determines that questioning of a child suspect is necessary, "in determining the reasonable amount of time for questioning, the offi- cer shall consider, among other things, the child's age and develop- mental ability, and the presence or absence of the child's parents or other persons legally responsible for the child's care."

Section Nine creates FCA § 305.2(10), which establishes that a child's statement shall be suppressed when the child has not consulted with an attorney; when a parent or person legally responsible, if present, has not been advised of and voluntarily waived Miranda; or when the ques- tioning of the child was not necessary.

Section 10 amends FCA § 724(a) to make clear that law enforcement's obligation with respect to a child taken into custody as a person in need of supervision to "immediately" notify a parent or person legally responsible that their child has been taken into custody requires that this notification takes place before that child can be taken from the location at which he or she was taken into custody to the police station or any other location.

Section 10 also mends FCA § 724(b) by removing language relating to when law enforcement deems questioning of the child necessary, renumbers FCA § 724(d) to CA § 724(e), and inserts a new FCA § 724(d), which clarifies that a officer may determine that questioning of a child is necessary only when the officer "reasonably determines that the child's life or health, or the life or health of another individual, is in imminent danger and that the child may have information that would assist the officer in taking protective action. FCA § 724(e) now provides that in addition to the child's age and the presence or absence of his parents or other person legally responsible for his care, parental notification shall be a factor considered in determining the suitability and reason- able period of time for questioning the child.

Section 10 also creates FCA § 724(f), which provides that statements made to law enforcement prior to the commencement of a fact-finding hearing may not be admitted into evidence at a fact-finding hearing.

Section Eleven amends CPL § 140.20(6) to create separate paragraphs and in paragraph (a) makes clear that law enforcement's obligation with respect to a child taken into custody as a juvenile offender or as a person sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a parent or person legally responsible that their child has been taken into custody requires that this notification takes place before that child can be taken from the location at which he/she was taken into custody to the police station or any other location.

Section Eleven also, in proposed CPL § 140.20(6) (b), which already enforcement when necessary, defines necessary as when the officer "reasonably determines that the child's life or health, or the life or health of another individual, is in imminent danger and that the child may have information that would assist the officer in taking protective action."

Section Eleven also, in proposed CPL § 14020(6)(c), adds the provision that no child shall be questioned under this section unless and until "the child has consulted with an attorney in person, by telephone, or by video conference," and establishes that this consultation may not be waived.

Section Eleven also creates CPL . 140.20(6)(e) to establish that a child's statement shall be suppressed when the child has not consulted with an attorney; when a parent or person legally responsible, if pres- ent, has not been advised of and voluntarily waived Miranda; or when the questioning of the child was not necessary.

Section Twelve amends CPL § 140.27(5) to create separate paragraphs and in paragraph (a) makes clear that law enforcement's obligation with respect to a child taken into custody as a juvenile offender or as a person sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a parent or person legally responsible that their child has been taken into custody requires that this notification takes place before that child can be taken from the location at which he or she was taken into custody to the police station or any other location.

Section Twelve also, in proposed CPL § 140.27(5) (b), which already provides that a child suspect shall only be questioned by law enforce- ment w n necessary, defines necessary as when the Officer "reasonably determines that the child's life or health, or the life or health of another individual, is in imminent danger and that the child may have information that would assist the officer in taking protective action."

Section Twelve also, in proposed CPL § 140.27(5)(c) adds the provision that no child shall be questioned under this section unless and until "the child has consulted with an attorney in person, by telephone, or by video conference," and establishes that this consultation may not be waived.

Section Twelve also creates CPL § 140.27(5)(e) to establish that a child's statement shall be suppressed when the child has not consulted with an attorney; when a parent or person legally responsible, if pres- ent, has not been advised of and voluntarily waived Miranda; or when the questioning of the child was not necessary.

Section Thirteen amends CPL § 140.40(5) to create separate paragraphs and in paragraph (a) makes clear that law enforcement's obligation with respect to a child taken into custody as a juvenile offender or as a person sixteen (or as of October 1, 2019, seventeen) to "immediately" notify a parent or person legally responsible that their child has been taken into custody requires that this notification takes place before that child can be taken from the location at which he or she was taken into custody to the police station or any other location.

Section Thirteen also, in proposed CPL § 140.40(5)(b) which already provides that a child suspect shall only be questioned by law enforce- ment when necessary, defines necessary as when the officer "reasonably determines that the child's life or health, or the life or health of another individual, is in imminent danger and that the child may have information that would assist the officer in taking protective action."

Section Thirteen also, in proposed CPL § 140.40(5)(c) adds the provision that no child shall be questioned under this section unless and until "the child has consulted with an attorney in person, by telephone, or by video conference," and establishes that this consultation may not be waived.

Section Thirteen also creates CPL § 140.40(5)(e) to establish that a child's statement shall be suppressed when the child has not consulted with an attorney; when a parent or person legally responsible, if pres- ent, has not been advised of and voluntarily waived Miranda; or when the questioning of the child was not necessary.

Existing law

Existing law in New York State does not ensure that children under 18 years old - with all of their inherent developmental limitations - are adequately and appropriately able to protect their right to remain silent pursuant to the 5th Amendment of the United States Constitution. The Family Court Act and the Criminal Procedure Law already require law enforcement to "immediately" notify the parent or person legally respon- sible of a child's arrest. The term "immediate," however, is undefined under current law, and in practice, law enforcement regularly brings arrested children to the police station house before notifying parents or persons legally responsible The statutes also state that law enforce- ment may only interrogate children when "necessary," but do not define that crucial term. This ambiguity not only places vulnerable youth at risk of being unreasoably interrogated, but it also forces law enforce- ment to contend with uncertainty about what they are permitted to do under the law, and leaves the courts with little guidance when called upon to interpret this requirement. Also under current law, when the police take a youth into custody and wish to interrogate that youth, the police must advise the child of his/her right to remain silent and, whenever possible, notify a parent or responsible adult to assist the youth in deciding whether to waive this right. Family Court Act § 305.2; Criminal Procedure Law § 140.20(6). This process does not prevent youth from waiving their Miranda rights nor does it ensure that waiver is knowing, voluntary and intelligent, as required by the Constitution.

Justification

The bill makes three crucial changes to § 305.2 of the Family Court Act and to §§ 140.20(6), 140.27(5) and 140.40(5) of the Criminal Procedure Law. First, it clarifies that law enforcement cannot take a child to the station house until they have notified a parent or person legally responsible. Second, it defines the term "necessary" in the context of juvenile interrogation. Third, it requires that juveniles consult with counsel before they can waive their rights under Miranda. The bill also makes the first two changes to Family Court Act § 724.

Family Court Act §§ 305.2 and 724 and Criminal Procedure Law §§ 140.20(6), 140.27(5) and 140.40(5) already require that law enforcement immediately notify an arrested child's parent or legally responsible adult that the child has been taken into custody; this proposal clari- fies that immediate notification must take place before the officer takes the child to another location. In an era in which all officers are equipped with mobile phones, they are able to make contact with parents without first taking children to the station house. In most cases, this will also mean the officer will be able to make a more immediate deter- mination whether to bring the child to the station house, to the family court, or to another location permitted by statute.

Current law establishes that juveniles may only be interrogated by law enforcement when it is necessary, but it does not define "necessary." Under the proposal, questioning is defined to be necessary only when "the officer reasonably determines that the child's life or health, or the life or health of another individual, is in imminent danger and that the child may have information that would assist the officer in taking protective action." Courts already grapple with decisions about when the interrogation of children by law enforcement is warranted, and have expressed the importance of clarity in the law regarding both the circumstances warranting interrogation and what constitutes a reasonable period of time for questioning. See, for example, Matter of Louis D., 34 Misc,3d 427 (2011). By providing this dear definition of the term "necessary," the bill not only ensures that vulnerable young people are not subject to unwarranted interrogation, but also provides law enforce- ment and the courts with crucial direction and assurance about what is permissible under the law.

Under this proposal, unless questioning is necessary, after notifying a parent, the officer m y transport a child to his home, to another greed upon location, or to he station house for purposes of releasing t e child to the parent w th a desk appearance ticket under Family Court Act § 305.2 or after securing a written promise from the parent to bring the child to the designated lead agency at specified time and place under Family Court Act § 724. When the officer does not have reason to believe that the parent will appear for the child, unless questioning is neces- sary, the officer may bring the child straightaway to family court, before a designated magistrate, to the designated lead agency, or to another location specified in § 305.2(4) or § 724. Under the proposed Criminal Procedure Law provisions, unless questioning is necessary, after notifying the parent, the officer may release the youth with a desk appearance ticket or bring the youth to the appropriate court or otherwise proceed according to the provisions of the CPL.

This bill would also establish that under Family Court Act § 3052 and Criminal Procedure Law §§ 140.20(6), 140.27(5) and 140.40(5), a child suspect can only be questioned after consulting with an attorney by phone, video, or in person. That consultation would be non-waivable, and the taking of a statement without consultation with counsel, necessity, or waiver of Miranda rights by a parent if present, would result in suppression of the statement. Under Family Court Act § 724, a statement would not be admissible into evidence at a fact finding hearing, since the petitioner is usually a parent and thus the child can never have the advice and assistance of a parent who does not have a conflict of inter- est. This treatment is comparable to those statements given to the designated lead agency before fact finding.

The decision to waive one's constitutional right to be silent has enor- mous consequences, which is why the law requires that the decision be "knowing, voluntary, and intelligent." See Miranda v. Arizona 384 U.S. 436 (1966). Because children are fundamentally different from adults, different safeguards are required in order for a child to make a know- ing, voluntary and intelligent decision about a Miranda waiver.

The importance of additional Miranda protections for adolescents is well-grounded in science. It is firmly established that brain develop- ment continues into adulthood, and in recent years, the scientific community has come to a resounding consensus that the prefront al cortex of the brain - which largely governs decision-making and judgment gener- ally does not mature until well after the teenage years.* In fact, the research demonstrates that the brain undergoes a "rewiring" process that is not complete until approximately 25 years of age.** As a result, youth are not yet able to consider the long-term consequences of their actions or to resist environmental pressures as well as adults. The ability to consider the consequences of one's actions and vulnerability to environmental pressure are precisely the kinds of issues at play in a custodial interrogation setting.*** Adolescents especially struggle to process information and make sound decisions in stressful situations, such as during interrogation.**** Additionally, research shows that adolescents - especially those in the justice system, who have high rates of intellectual disability - often do not have the cognitive skills necessary to understand the words or concepts in the Miranda warnings.

The consensus that adolescents' decision-making capabilities are not fully developed and that, for this reason, young people require unique legal protections has been recognized and embraced by the United States Supreme Court. Children are, in the Court's words, "generally less mature and responsible than adults;" "they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them"; and "they are more vulnerable or susceptible to... outside pressures than adults." J.D.B.V. North Carolina, 131 S.Ct. 2394, 2397 (2011)(internal quotations omitted). In addition, the Supreme Court has recognized that children "have limited understandings of the criminal justice system and the roles of the institutional actors within it" Graham v. Florida, 560 U.S. 48, 78 (2010). Addressing the specific context of police interrogation, the Supreme Court has observed that events that "would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens." Haley v. Ohio, 332 U.S. 596, 599 (1948).Finally, it has noted that "no matter how sophisticated, a juve- nile subject of police interrogation cannot be compared to an adult subject" J.D.B., 131 S.Ct. at 2403 (internal quotations omitted).

In fact, leading professional organizations with expertise about chil- dren agree that attorney consultation is needed during interrogation because of children's developmental limitations. The American Psycholog- ical Association, for example, "recommends that particularly vulnerable suspect populations, including youth, persons with developmental disa- bilities, and persons with mental illness, be provided special and professional protection during interrogations such as being accompanied and advised by an attorney or professional advocate."***** The American Academy on Child and Adolescent Psychiatry similarly believes that youth should have an attorney present during questioning by police and that "when interviewing juvenile suspects, police should use terms and concepts appropriate to the individual's developmental level. Any writ- ten material should also be geared to the person's grade level and cognitive capacity. In general, it is not sufficient to simply read or recite information to a juvenile."******

Unfortunately, the presence of a parent or responsible adult does not adequately ensure that a child makes a knowing, voluntary and intelli- gent decision with respect to his or her Miranda rights. Parents often have conflicting interests and often misunderstand the proceedings. Because parents may teach their children to respect and cooperate with law enforcement, they may find it difficult to advise a child in custody not to cooperate. Similarly, parents teach their children to tell the truth; but often a refusal to speak - even when the child believes himself to be "innocent"- is in the youth's legal interests. Parents often find it hard to believe that their child could possibly do whatev- er the child is accused of and therefore urge the child to speak, not realizing that doing so may well undermine the child's legal interests. Furthermore, when children are arrested, it often occurs in the context of intra-familial disputes, discord, or violence. Resulting conflicts of interest force parents to choose between, on the one hand, giving the child in custody the best advice and, on the other, looking out for the best interests of the other family member involved, which is often the parent him/herself. All of these issues are compounded when, as is often the case, the parent has been summoned to the police station in the middle of the night, is feeling humiliated, resentful, or even angry with the child, and is unable to muster the kind of dispassionate and reflective thought process necessary to best advise the child. Finally, often the parent or responsible adult him/herself doesn't understand the meaning and nature of the rights the youth is being asked to waive.

Social science research confirms th t the existing parental notification process to protect the rights of youth is inadequate.Research has found that when parents are present during interrogation, they almost always either do not help their children make a decision or actually encourage their children to waive their rights.******* Having a child rely exclu- sively on the advice of an adult who may have conflicting interests and who likely does not him/herself understand the meaning and nature of the right at stake and the potential consequences of waiving that right undermines the purpose of Family Court Act § 305 2 and Criminal Proce- dure Law §§ 140.20(6), 140.27(5) and 140.40(5).

Legal counsel would offer expert, objective advice to young people about their Constitutional right to remain silent and their ability to waive this right and speak to the police. Only with the benefit of such a conflict-free consultation can children make any waiver of this bedrock right knowingly, voluntarily, and intelligently, in keeping with requirements of the state and federal Constitutions.For this reason, youth under 18 years of age facing custodial interrogation must be required to consult with legal counsel to assist in their understanding of their rights and the consequences of waiving those rights prior to waiving their rights under Miranda.

Legislative history

None

Fiscal implications

Although the provision of counsel for consultation at interrogation will inevitably impose a cost to the state and local jurisdictions, this bill will also provide an important cost-saving benefit. Under current law, juvenile defense attorneys and criminal defense attorney often spend significant amounts of time litigating the legality of their clients' interrogation by law enforcement in what are known as. Huntley hear- ings. These hearings can require several lengthy court appearances, consuming significant resources of defense attorneys, prosecutors, law enforcement witnesses, and judges. If this bill becomes law, it will eliminate the need for a Huntley hearing in the vast majority of cases, significantly reducing the strain on the many agencies and individuals involved.

EFFECTIVE DATE:1 This act shall take effect April 1, 2021. * Linda B. Chamberlain, The Amazing Teen Brain: What Every Child Advocate Needs to Know, 28 A.B.A. CHILD. L. PRAC. No. 2 at 17-18 (April 2009). ** M. Arain et al., Maturation of the Adolescent Brain, 9 NEUROPSY- CHIATR.DIS.TREAT.449-461(2013),availableat https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3621648/, citing L. Gavin et al., Sexual and Reproductive Health of persons aged 10-24 years United States, 2002-2007, 58(6) MMWR SURVEILL. SUMM. 1-58 (2009). *** See Goldstein et al., Waving Good-bye to Waiver: A Developmental Argu- ment Against Youths' Waiver of Miranda Rights, Legislation and Public Policy, vol. 21 (2018); Elizabeth Cauffman & Laurence Steinberg, Emerg- ing Findings from Research on Adolescent Development and Juvenile Justice, 7 Victims and Offenders 428, 433 (2012); LaurencSteinberg, Adolescent Development and Juvenile Justice, 5 Ann. Re .Clinical Psychol. 459, 65-71 (2009); Laurence Steinberg, The Science of Adoles- cent Brain Development and Its Implication for Adolescent Rights and Responsibilities, in Human Rights and Adolescence 59, 64 (Jacqueline Bhabha. ed., 2014); Dustin Albert & Laurence Steinberg, Judgment and Decision-Making in Adolescence, 21 J. Res. Adolescence 211(2011); Linda Van Leijenhorst et al., Adolescent Risky Decision-Mak- ing: Neurocognitive Development of Reward and Control Regions, 51 Neuroimage 345; 353-54 (2010). Sarah-Jayne Blakemore & Trevor W. Robbins, Decision-Making in the Adoleicent Brain, 15 Nature Neuroscience 1184, 1186 (2012). **** See Goldstein et al., supra. ***** Resolution on Interrogations of Criminal Suspects, Am. Psychol. Ass'n (2014), http://www.apa.org/about/policy/interrogations.aspx. ****** Interview- ing and Interrogating Juvenile Suspects, Am. Acad. Child&AdolescentPsychiatry(Mar.7,2013), https://www.aacap.org/aacapipolicy_statements/2013/Intervievving_and_ Interrogating_JuvenileSuspects.aspx. ******* Jodi L. Viljoen et al., Legal Decisions of Preadolescent and Adolescent Defendants: Predictors of Confessions, Pleas, Communication with Attorneys, and Appeals, 29 Law & Hum. Behay. 253, 261 (2005). Jennifer L Woolard et al., Examining Adolescents' and their Parents' Conceptual & Practical Knowledge of Police Interrogation: A Family Dyad Approach, 37 J. Youth & Adolescence 685, 690-94 (2008).