Legislating Away a Case Law Problem:
Miranda, Welfare & Institutions Code § 625.6, and Juveniles
By Robert C. Phillips
DDA (Retired)
November, 2017
During the past legislative session, Governor Jerry Brown signed into law SB 395, effective as of January 1, 2018. This new bill sets out new and unique statutory investigative prerequisites, affecting certain minors who are taken into custody and about to be interrogated.
Pursuant to Welfare and Institutions Code § 625.6, law enforcement will no longer be allowed to attempt custodial interrogations of minors 15 years of age and younger, nor even seek a waiver of the minor’s Miranda[1] rights, until the minor has consulted with legal counsel either in person, by telephone, or by video conference.
Notice I did not say, “. . . has had the opportunity to consult with legal counsel.” The statute is very specific. Such a consultation is a mandatory prerequisite to advising the minor of his constitutional rights and subjecting him to an interrogation. It “may not be waived.”[2]
So why, you might ask, are we to be saddled with this apparent legislative meddling in what we have for so long considered to be a case law issue? Some might say it’s because we asked for it.
It should not have to be repeated that the whole purpose behind interrogating criminal suspects, whether they are older or younger than 15 years, is to seek out and determine the truth. Interrogation is but one tool, albeit an important one, law enforcement has for reaching this goal. The Miranda decision itself recognized that “(c)onfessions remain a proper element in law enforcement.”[3] Many other courts have since also noted that, “(s)o long as the methods used comply with due process standards, it is in the public interest for the police to encourage confessions and admissions during interrogation.”[4]
But the end (i.e., a confession) cannot always be said to justify the means (i.e., a coercive interrogation). This is because when the means used involve coercive interrogative techniques—i.e., tactics used “to overbear the will of a defendant in an isolated custodial interrogation setting”[5]—and which in fact might induce a false confession, the results can no longer be trusted.
It seems, however, that in conducting interrogations law enforcement officers sometimes, whether intentionally or not, are intent only upon obtaining a confession, losing sight of the intended goal of finding the truth. This, it is now recognized, applies more often when the in-custody suspect being interrogated is a minor. Two recent cases, among any number of others, help to illustrate this point.
In In re Elias V.,[6] a wardship proceeding alleging that, at 13 years of age, the minor committed a lewd and lascivious act upon a three-year-old child, Division Two of the First District Court of Appeal ruled that the minor’s statements to police should have been suppressed under the Fifth (self-incrimination) and Fourteenth (due process) Amendments to the U.S. Constitution in that his incriminating statements were obtained involuntarily. Similarly, Division Four of the First Appellate District reached the same conclusion in another, but more recent child molest case of In re T.F.[7] involving a 15-year-old defendant.
In Elias V., the court’s ruling was based partially upon the combined factors of the minor’s youth and the absence of corroborating evidence. More importantly, however, both cases found that the use in evidence of involuntary and untrustworthy admissions were induced by their respective detectives’ coercive interrogation tactics. The tactics used varied somewhat between the two cases, but one or both included interrogating the minor at school, positing the minor’s guilt quickly and dispositively as if there was no purpose in denying it, engaging in deceptive “maximization/minimization” tactics, using false evidence, threatening to subject the minor against his will to a lie detector test, and/or employing a “false choice” strategy where alternative, less objectionable, explanations for improperly touching the victim were used.[8]
“Maximization/minimization,” used in both cases and as described in detail by the court in T.F., has been defined in the literature on interrogation techniques[9] as a “cluster of tactics” designed to convey two things. During the first, under “maximization,” the interrogator conveys his “rock-solid belief that the suspect is guilty and that all denials will fail. Such tactics include making an accusation, overriding objections, and citing evidence, real or manufactured, to shift the suspect’s mental state from confident to hopeless. … [¶] In contrast, minimization tactics are designed to provide the suspect with moral justification and face-saving excuses for having committed the crime in question,” a tactic that “communicates by implication that leniency in punishment is forthcoming upon confession.”[10]
The court in Elias V. noted that “(a) convincing body of evidence” has found such tactics to be particularly effective on “vulnerable innocents,” such as minors, and tending to produce false confessions.[11] Similarly, the T.F. court criticized the “maximization/minimization” interrogation technique when used against juveniles—“particularly adolescents”—as tending to cause false confessions.[12]
Ultimately, the court in Elias V., in considering the totality of the circumstances and the vulnerabilities and susceptibility of adolescents subjected to custodial interrogations, had “little difficulty concluding that the inculpatory statements made by Elias to (the detective were not the) product of his free will.”[13] In T.F., the minor’s confession was found to be the product of an unconstitutional (due process) coercive interrogation by a detective where the “maximization/minimization” technique was used during an hour and a half of “relentless” interrogation, wearing the minor down until he finally confessed to committing the acts as suggested by the detective in his questions.[14]
But the problem is not a new one. It has long been recognized “that admissions and confessions of juveniles require special caution.”[15] In-custody interrogations have been recognized since the Miranda decision itself as inherently coercive with potential due process implications.[16] When a confession by a minor is involved and “counsel was not present for some permissible reason when an admission was obtained, the greatest care must be taken to assure that the admission was voluntary.”[17] “[T]hat risk is all the more troubling—and recent studies suggest, all the more acute—when the subject of custodial interrogation is a juvenile.”[18]
It is therefore no surprise that California’s Legislature would eventually step in and mandate its own solution to the problem. SB 395 is an attempt at such a solution. Whether or not it constitutes a bit of “over kill” remains to be seen. But in the meantime, we have to prepare for the effects the new W&I Code § 625.6 will have on criminal investigations. To do that, we need to consider what section 625.6 requires, and what it does not.
First, in an apparent legislative compromise (noting in its legislative findings the references to all minors under the age of 18[19]), it is mandated in subdivision (a) that 625.6 applies only to minors age 15 and younger. Subdivision (a) requires that the minor “shall consult with legal counsel in person, by telephone, or by video conference.” This is to occur before any wavier of Miranda rights is attempted and before any interrogation takes place. It is also notably a requirement that cannot be waived.[20]
Thus, it becomes law enforcement’s burden to insure that an attorney is made available to any such minor. The mechanics of insuring compliance with this requirement, or even if law enforcement will make such an effort recognizing that any attorney worth his or her salt will consistently advise such a minor not to waive his or her rights or make any statements at all, is yet to be determined. To sidestep 625.6’s requirements, however, law enforcement always has the option of foregoing an interrogation and just not seeking the minor’s waiver and statements.
It is also noted that the section 625.6’s requirements apply only to “custodial interrogation(s).”[21] A non-custodial interview of a minor does not trigger section 625.6’s protections.
On the issue of “custody,” there’s no reason to suspect that the standard rules on what is and what is not “custody” for purposes of Miranda won’t continue to apply, recognizing, however, that courts are likely to be more sensitive to this issue when it is a criminally unsophisticated minor being questioned. Although whether or not a person is in “custody” is supposed to be an objective issue, not taking into consideration subjective factors such a particular’s person’s age,[22] the U.S. Supreme Court has determined that in the case of a minor, where a minor’s age is either known or apparent to an interrogator, this factor becomes an objectively perceived one, and must be taken into account when determining whether the minor is in custody for purposes of Miranda.[23]
But generally speaking, and without reiterating the vast body of law discussing the issue of “custody,” we can leave it at the general rule that whether or not a person is in custody for purposes of Miranda depends upon “how a reasonable man (or woman, or in this case; minor) in the suspect’s shoes would have understood his (or her) situation.”[24] A person is considered to be in Miranda-custody whenever “a reasonable person in that position would ‘have felt he or she was not at liberty to terminate the interrogation and leave.’”[25]
Subdivision (c) of section 625.5 contains a limited exigent circumstance exception; i.e., when “(1) (t)he officer who questioned the youth reasonably believed the information he or she sought was necessary to protect life or property from an imminent threat”, and (2) “(t)he officer’s questions were limited to those questions that were reasonably necessary to obtain that information.”[26] Until told otherwise, we can probably assume this exception will be interpreted to be consistent with the body of law that comes within what’s commonly known as the “public safety exception” to the Miranda rule which, in itself, excuses the lack of an admonishment altogether.[27] Officers who use this exception must be prepared, of course, to articulate the circumstances behind their decision for believing that the situation makes this exception applicable.
Subdivision (d) provides another exception, but which is limited to probation officers while “in the normal performance of his or her duties under (Welfare and Institutions Code) Section 625, 627.5, or 628.”[28] These three sections, as subdivision (d) itself hints, describes the duties of probation officers in relation to minors in their custody, including the duty to advise the minor (and in some cases, the minor’s parent or guardian[29]) of his or her constitutional rights.
An issue not addressed in W&I § 625.6 is the requirement that an arresting officer make some effort to determine by “clear evidence” whether an arrested minor under the age of 14 understood the wrongfulness of his act, as dictated by Penal Code § 26. In seeking such evidence via what has been nicknamed by some as a “Gladys admonishment,”[30] it has been held that an arresting officer should ask questions relative to the minor’s understanding of the difference between right and wrong, but not until after an advisal and waiver of the minor’s Miranda rights.[31] Section 625.6, on its face, by mandating consultation with an attorney prior to an advisal of rights, appears to preclude compliance with the Gladys requirement absent first following 625.6’s attorney consultation requirements and the obtaining of a Miranda waiver.
This section 625.6 vs. P.C. § 26 problem, however, does not preclude, and in fact makes even more important, the need for an arresting officer to note any other unsolicited comments or actions on the part of the minor which are relevant to his or her understanding of the wrongfulness of his or her criminal acts.
Also not addressed in section 625.6 is the corresponding statutory requirement contained in W&I Code § 625 that requires law enforcement, upon taking any minor into “temporary custody” (i.e., arresting him[32]), to provide the minor with a Miranda-style admonishment whether or not the minor is to be interrogated. While there does not appear to be any available sanction for ignoring the admonishment requirement of section 625, in section 625.6 situations, when an attorney is not provided to the minor, it would seem to require an arresting officer to either ignore the admonishment requirement of section 625 or the no-admonishment requirement of section 625.6. How the courts might view this dilemma remains to be seen.
Subdivision (f) provides for the repeal of W&I § 625.6 as of January 1, 2025,[33] assuming the Legislature doesn’t vote to extend it. In the meantime, subdivision (d) mandates a “panel of experts,” to be appointed by the Governor (“or his or designee”) and drawn from a specific list of public agencies and other private-citizen categories, to “review the implementation of this section and examine the effects and outcomes related to the implementation of this section, including, but not limited to, the appropriate age of youth to whom this section should apply.”[34] What actually happens to this section between now and 2025 will no doubt depend completely upon the findings made by this panel.
Saving the best—or at least the most intriguing—issue for last, we must also discuss what sanctions, if any, a court may impose when a law enforcement interrogator ignores the subdivision (a) requirement of providing minors age 15 years or younger with an attorney consultation before advisal and interrogation. Perhaps surprisingly, it appears that suppression of a minor’s statements is not necessarily required.
Subdivision (b) specifically provides that a court is to do no more than “consider the effect of a failure to comply” with the counsel consultation requirements of subdivision (a) when “adjudicating the admissibility of statements of a youth 15 years of age or younger made during or after a custodial interrogation, . . .”[35] In other words, ignoring subdivision (a) is but one factor to consider amongst all the other potentially coercive effects of a particular interrogation. Pursuant to current case law, a court will therefore also consider the personal characteristics of the minor such as his or her age, experience, education, background, intelligence, as well as his capacity to understand the Miranda warnings, the nature of the Fifth Amendment rights, and the consequences of waving them.[36]
Nowhere in W&I Code § 625.6 is it suggested that suppression is required. And even if it did, because suppression in this situation is not required under federal authority, 1982’s Proposition 8’s “Truth-in-Evidence” provisions do not allow for a suppression remedy[37] unless both houses of California’s Legislature had passed the measure by a two-thirds majority.[38] That did not occur here. Although the State Senate approved this measure with the required number of votes, the Assembly passed it with only 46 out of 80 votes; less than the required two-thirds.[39]
As a result, upon a motion filed by the defense to suppress statements by a minor 15 years of age or younger where it is alleged that a police interrogator failed to comply with section 625.6(a)’s attorney consultation requirements, the issue will have to be litigated on a case-by-case basis, taking into consideration the totality of the circumstances. Those circumstances should certainly include the importance to the criminal justice system attached to obtaining confessions, as mentioned above. But they will also—and as argued by some, more importantly—look to any possible coerciveness used in an interrogation and its potential for subverting the truth-finding function of a properly conducted interrogation. Hence, the perceived necessity of a statute such as W&I § 625.6.
[1] Miranda v. Arizona (1966) 384 U.S. 436
[2] Wel. & Inst. Code § 625.6(a)
[3] Miranda v. Arizona, supra, at p. 478
[4] People v. Garner (1961) 57 Cal.2nd 135, 164
[5] Sessoms v. Grounds (9th Cir. 2015) 776 F.3rd 615, 621;
citing Miranda v. Arizona, supra, at pp. 461, 466
[6] (2015) 237 Cal.App.4th 568
[7] (2017) 16 Cal.App.5th 202
[8] In re Elias V., supra, at pp. 576-600
In re T.F., supra, at pp. 208-209
[9] Police-Induced Confessions, Risk Factors and Recommendations (2010), 34 Law & Hum. Behav., at p. 12.
[10] Ibid.
In re Elias V., supra, at p. 583
[11] Id., at pp. 583-584
[12] In re T.F., supra, at p. 215
[13] In re Elias V., supra, at p. 597
[14] In re T.F., supra, at pp. 213-221
[15] Doody v. Ryan (9th Cir. 2011) 649 F.3rd 986, 1008;
quoting In re Gault (1967) 387 U.S. 1, 45
[16] Miranda v. Arizona, supra, at p. 445
[17] In re Gault, supra, at p. 55
[18] United States v. IMM (9th Cir. 2014) 747 F.3rd 754, 764
See also In re Joseph H. (2015) 237 Cal.App.4th 517; 533-534, and fn. 11;
J.D.B. v. North Carolina (2011) 564 U.S. 261, 269;
In re Art T. (2015) 234 Cal.App.4th 335, 354;
People v. Jones (2017) 7 Cal.App.5th 787, 810;
Rodriguez v. McDonald (9th Cir. 2017) 872 F.3rd 908, 920-926
[19] SB 395; SECTION 1, paragraphs (a), (b), and (c)
[20] W&I § 625.6(a)
[21] Ibid.
[22] See Yarborough v. Alvarado (2004) 541 U.S. 652
[23] J.D.B. v. North Carolina (2011) 564 U.S. 261, 268-281;
See also In re Joseph H. (2015) 237 Cal.App.4th 517, 531
[24] Berkemer v. McCarty (1984) 468 U.S. 420, 442;
People v. Boyer (1989) 48 Cal.3rd 247, 272;
In re Kenneth S. (2005) 133 Cal.App.4th 54;
People v. Bejasa (2012) 205 Cal.App.4th 26, 35;
People v. Kopatz (2015) 61 Cal.4th 62, 80.
[25] Tankleff v. Senkowski (2nd Cir. 1998) 135 F.3rd 235, 243, internal cite deleted;
See also People v. Zamudio (2008) 43 Cal.4th 327, 340-346;
Thompson v. Keohane (1995) 516 U.S. 99, 112
[26] W&I Code § 625.6(c)
[27] See New York v. Quarles (1984) 467 U.S. 639
[28] W&I Code § 625.6(d)
[29] W&I Code § 627.5
[30] Per In re Gladys R. (1970) 1 Cal.3rd 855
[31] In re Joseph H. (2015) 237 Cal.App.4th 517
[32] See In re Ian C. (2001) 87 Cal.App.4th 856, 860; and
In re Thierry S. (1977) 19 Cal.3rd 727, 734, fn. 6
[33] W&I Code § 625.6(f)
[34] W&I Code § 625.6(d)
[35] W&I Code § 625.6
[36] See Fare v. Michael C. (1979) 442 U.S. 707, 725;
People v. Lessie (2010) 47 Cal.4th 1152, 1167;
In re Z.A. (2012) 207 Cal.App.4th 1401, 1414;
In re Joseph H., supra, at p. 533;
In re T.F., supra, at p. 211
[37] In re Lance W. (1985) 37 Cal.3rd 873, 896
[38] California Constitution Article I, Section 28(f)(2)
[39] See Legislative History for SB 395
