by Lauren Baldwin, Contributing Author
Police are free to approach any child and question him about whether he was involved in a crime but, just as an adult can never be forced to answer questions from police in an interrogation, the child is not required to answer. The child can refuse to answer questions and can request that a lawyer or a parent be present. A parent or lawyer also can refuse to allow the child to answer questions. If police, including officers on the street and school police officers, begin questioning a child and the child requests that she be allowed to call a parent or have a parent present, the police should stop and allow her to do so. But police are not required to contact parents or obtain parental permission before approaching and questioning a child.
Informal Questioning and Voluntary Statements to Police
If a child agrees to talk with police and the child has not been arrested and is free to leave, anything the child says to police can be used against him or her in criminal proceedings because his statements are considered voluntary and not coerced. If the child is interviewed on the street or at home, for instance, and voluntarily admits to participating in a burglary or selling drugs to other students, the police can testify at a criminal trial about the child’s admissions or statements.
A child’s statements to police can be used against him in criminal proceedings, however, only if the statements are voluntary and given freely. If, for example, the child is forced to answer questions or admit against his will to committing a crime, those statements would not be admissible in court. This requirement is based on the provision in the Fifth Amendment to the U.S. Constitution that no person can be required or forced to be a witness against himself. This also is known as the right against self-incrimination.
Custodial Interrogation and Miranda Rights
If a child is in fact arrested, detained or taken into custody; or if the police do something that would make a reasonable person feel like he was in custody or not free to leave, any questioning in that situation is considered “custodial interrogation.” Any statements made by the child during custodial interrogation will be admissible only if the child is first advised of his “Miranda rights” or given his “Miranda warning.” The Miranda warning is the statement that a person has the right to remain silent and the right to consult with an attorney, and that anything a person says to police can be used against him in court.
Just as with an adult, if the police arrest a child and question him without reading him the Miranda warning, nothing the child says will be admissible in court. The police can use the information to help with the investigation of the case—for instance, talk to another person the child reports was involved—but the confession cannot be used to prosecute the child. If the police arrest a minor or take her into custody and do advise her of her Miranda rights, the minor cannot be required or forced to answer any questions. The police can ask any questions they like, but the child is free to remain silent or to answer some questions but not others.
When is a Child "In Custody?"
The question of whether a person—adult or child—has been detained or taken into custody can be complex. If police formally arrest the child, place him in handcuffs, lock him in the back of a police car, or place him in a holding cell at a police station, it can easily be said that the child is, in fact, in custody and not free to leave. If the child is arrested, the police should announce that the child is under arrest.
In other less obvious situations, the question is whether a reasonable person in that situation would believe he was free to leave. The United States Supreme Court recently ruled that a court considering the question of admissibility of a minor’s confession to police without any Miranda warning must consider the age of the child as a factor in determining whether a reasonable person would have believed he was in custody or not free to leave when he made the confession. The Court noted that a minor may be more likely to see a police officer as an authority figure and feel required to stay wherever the police officer has approached her.
When the Police Conduct Improper Questioning
If the police arrest or detain a child and refuse the child’s request to call his parents or another adult, or to talk to an attorney, there can be more consequences than the child’s statements being kept out in court. The parents could file a complaint with the police department or local government against the officers or department involved. If the situation was particularly serious and the child was physically abused or deprived of food, water, or rest while being interrogated by police, the parents could file a lawsuit on behalf of the child for violation of the child’s civil rights.