| Read Time: 3 minutes

It can happen to anyone. An argument at school escalates into a serious physical confrontation or your child is accused of possessing illegal drugs. The local police are called and decide that there is sufficient evidence of a crime under California law to permit them to take your child into temporary custody.

At the station, they advise your understandably frightened child of his or her so-called “Miranda Rights”. Your child signs a waiver of those rights and answers questions or makes an incriminating statement. For whatever reason, you haven’t been informed of all this until after your child has been interrogated.

California Adopts Miranda Rights for ChildrenWaivers of Miranda Rights

The warnings required by the United States Supreme Court’s 1966 decision in Miranda v. Arizona are familiar to most adults. They include notice of the constitutional right to consult with an attorney before being questioned.

There are, however, two important points to remember:

Any or all of the rights addressed in Miranda can be waived by a competent adult.

No suspect has the constitutional right to consult with a lawyer before making a waiver decision.

The key term is of course “competent”. It is well-established that, as with most waivers of legal rights, a Miranda waiver is valid only if the defendant had the mental capacity to understand both the rights and the possible consequences of waiving them. Over the years, questions of “Miranda Capacity” involving mentally impaired adult defendants have been debated in both legal and medical circles.

In 2016 the American Bar Association cited studies indicating that nearly ninety percent of all juveniles in custody give purported waivers. At least in theory, until recently a child of nearly any age in California could waive his or her Miranda rights.

But does an otherwise normal child capable of alleged criminal acts have this capacity? If so, at what age does it ordinarily develop? While Miranda waivers by children without guidance from a parent or guardian historically have been considered suspect, no clear test previously existed in California.

It seems obvious that a very young child cannot effectively waive his or her rights. In a recent case cited by Human Rights Watch,  a ten-year-old testified that he thought the right to “remain silent” only meant he had the right to remain calm. Naturally, the age at which a child becomes capable of making a voluntary and knowing waiver becomes less clear as a child ages.

Senate Bill 395 Expands Children’s’ Rights

Enacted in October 2017 as part of a package of bills addressing various aspects of juvenile justice, Senate Bill 395 amends the California Welfare and Institutions Code by adding a requirement that any child age 15 or younger meet with an attorney prior to making a waiver decision. The child must actually meet with the attorney, not just be given the option. SB 395 also requires that a court inquires as to compliance with the statute when considering a motion to exclude a covered juvenile’s confession.

SB 395 went through a number of revisions prior to passage in late September. Of particular note, the appropriate “cutoff” age was either 16 or 17 in various versions.


Further Study Is Mandated

SB 395 contains a somewhat unusual “sunset” provision which expressly leaves open the door to future changes. It directs the Governor to appoint a panel comprised of, among others, representatives of law enforcement and a person who, as a youth, was involved with the criminal justice system. The panel must be convened by no later than January 2023 and must by April 2024 report to the Legislature its findings regarding the “effects and outcomes” of the legislation.

In the absence of contrary action by the General Assembly, SB 395’s amendments will expire on January 1, 2025.

Author Photo

Kerry L. Armstrong

Attorney Kerry Armstrong opened up his law firm, the Law Offices of Kerry L. Armstrong, APLC, in June 2007. Prior to that, he was employed as the senior associate attorney for a large criminal defense firm in San Diego for nine years, eventually being placed in charge of that firm’s branch office in downtown San Diego. At one point, he was managing six attorneys at that firm, as well as several support staff and law clerks. In 2014, 2015, 2016, 2017, 2018, and 2019 Mr. Armstrong was selected for inclusion in the California Super Lawyers list, an honor only awarded to 5% of the nation’s attorneys. In 2017, he was also selected for the Super Lawyers Top 50 in San Diego list. In 2014, he was selected as a Top Attorney by Los Angeles Magazine. Additionally, Mr. Armstrong was also named as a Top Attorney by the San Diego Business Journal in 2014.

Rate this Post

1 Star2 Stars3 Stars4 Stars5 Stars