How hard could it be to protect the children? For crying out loud, they’re children! Children?!? So the brain trust in California enacted SB 395, because laws fix everything.
On October 11, 2017, Governor Jerry Brown signed into law SB 395, a bill requiring that youth 15-years-old or younger cannot be questioned in what is known as a custodial interrogation, without first consulting a lawyer—either in person, by telephone, or by video conference. The bill prohibits a kid from waving Miranda rights without such a consultation. Furthermore, the young person may not waive that consultation with the lawyer either.
The law makes an exception when a police officer “who questioned the youth reasonably believed the information he or she sought was necessary to protect life or property from an imminent threat.”
The notion is straightforward, that a minor 15 or younger is incapable of waiving his right to remain silent without advice of counsel. And, indeed, it shouldn’t be particularly controversial to recognize that kids are no match for cops when it comes to the ability to get them to talk. Between the Reid Technique, submission to the shield and plain old fear, what youngster is going to tell a cop that he’s not talking?
But as with all clear, simple solutions, complexity rears its ugly head. Certainly a cop should be able to speak with a young person in the ordinary course of an investigation, as would any adult. Would it make sense to prohibit a cop from asking a witness to a child being harmed who did it? Where did he go? What happened here? Crazy talk, obviously, and so the prohibition is limited to custodial interrogations, since they are, of course, the evil against which this law is directed.
It only took Jackie Lacey, the Los Angeles district attorney, one minute to figure out a way around this fix.
Don’t want to have to wait until counsel appears, and allows, a custodial interrogation? Then poof, make it non-custodial. Problem solved?
While the LA D.A.’s office said that the brief—which was written by Devallis Rutledge, a veteran prosecutor and former Santa Ana PD officer, who now serves as Special Counsel to District Attorney Jackie Lacey’s office—is a routine teaching tool, defense attorneys and other legal professionals we spoke with were less willing to dismiss its affect as routine.
“Here’s the thing,” said civil rights attorney Ron Kaye when asked about the D.A.’s brief. “Police officers are trained to in any way possible to obtain an incriminating statement. That’s their goal. And district attorneys fight tooth and nail to demonstrate that the statements provided by a suspect were voluntary, and that the suspect was not in custody, and didn’t trigger any kind of prophylactic measure that would have prevented the admission of an incriminating statement.”
The goal of the “prophylactic measure” is no mystery, and it certainly isn’t surprising given that young people are particularly vulnerable to police efforts to obtain an incriminating statement.
“Here the premise is that, scientifically speaking, juveniles are far more prone to provide false confessions” than adults, “and they are much more prone to being manipulated to provide statements that are incriminating that don’t necessarily reflect the truth.”
“So its manipulative and abusive to tell law enforcement how they should try to extract an incriminating statement from this population” without appropriate protections.
“It’s essentially taking the entire premise of the legislation and ignoring it. And that causes me concern,” said Kaye.
They aren’t “ignoring it,” but exploiting the otherwise reasonable gap to circumvent the law. The job of cops and prosecutors is to get the bad dude, and this law adds a level of effort that makes their job more difficult. As the lege gave them an easy out, they seized upon it. Is it wrong of the district attorney’s office to use their mad legal skillz to advise police how to do their job as effectively as possible? What if that means telling them how to avoid a well-justified law for the protection of young people who are particularly susceptible to manipulation, both in the waiver of their right to remain silent as well as giving false confessions?
The question isn’t whether kids 15 and younger are vulnerable to police machinations. This has been overwhelmingly established. But should the culture of law enforcement be to undermine laws based on sound science and public policy because it makes them more effective, their job easier?
But writing a law to effectuate a good idea isn’t as easy.
“It is beyond dispute,” wrote Sotomeyor [sic], “that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis.”
A cop doesn’t need to beat a kid with a rubber hose to get him to confess. All he has to do is ask. To expect a young person to be able to refuse to answer questions, to feel free to leave, is absurd. More to the point, most purported non-custodial interrogations are non-custodial in appearance only. Try walking away and see how well the officer reacts to your totally proper assertion of your right to be left alone. Now consider a youngster doing that.
But does SB 395 solve the problem? Is the DA undermining the law by exploiting its terms to its own advantage? Perhaps the California lege would have done better to change its law to prohibit the introduction into evidence of any confession or admission against penal interest of any person age 15 or younger without advice of counsel. Better still, perhaps Justice Sotomayor could put some teeth into her empathetic admonition.
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The west is still the best.
Way to start off the comments with a really deep thought.
I could get used to Deep Thought’s by Jake, as long as we get gems like the original.
“One thing kids like is to be tricked. For instance, I was going to take my little nephew to Disneyland, but instead I drove him to an old burned-out warehouse. “Oh, no,” I said, “Disneyland burned down.” He cried and cried, but I think that deep down he thought it was a pretty good joke. I started to drive over to the real Disneyland, but it was getting pretty late.”
That was jack, and a step too far.
I do what I can.
Do less.
It appears to one such as myself (who hasn’t spent three years being berated by John Houseman) that the power differential between a child and police was balanced by the fact that Juvenile records were sealed and effectively unusable at adulthood. Now that we’re prosecuting ten-year-olds as adults it seems rather disingenuous to use that power. Some restraint is called for, but how can you have any when cops and prosecutors, especially prosecutors who used to be cops, seem eager to find ways around the restrictions.
Are you familiar with the phrase “begging the question”? Don’t do it, especially when the idea that popped into your head is inane.
Distinguishing “non-custodial” versus “custodial” interrogation seems like a proper reading, but distinguishing between custodial “interrogation” and custodial “questioning” seems to be a stretch. Unless “questioning” is a term of art that somehow differs from “interrogation,” it doesn’t pass the smell test.
To non-CDLs, custodial may seem as if it’s a pretty clear thing. It’s not. This reflects one of the core problems with such ideas, that to people who have no clue what they’re talking about, things seem easy and obvious, and so they have no reason to suspect how unworkable their easy answers are.
Oh, I wasn’t suggesting “custodial” was clear in practice. Just that the text supported the possibility.
smh.
Underlying this is a meta-problem or three. An apparent core principle of police interrogation is to confuse or otherwise render the subject incapable of rational thought*, then steamroller the defenseless woman into confessing. Since police mostly arrest the guilty, this gives them the impression that it is an effective interrogation technique.
It isn’t. It’s guaran-damn-teed to produce false confessions by innocent subjects, and the interrogators cannot themselves tell the difference between a real confession and a false one. But hey, it’s easy, feels good, and the only ones who can complain are criminals, almost by definition. What’s not to like, if you’re the cop?
*If you doubt, consider the SWAT-style raid, because it’s a core principle of that, as well – and it likewise guarantees bad outcomes. Make people irrational, and they tend to do unexpected things. This doesn’t make you safer.
Regards,
Nemo
Cops want to close cases. Prosecutors want to convict. When you talk to them over a beer, you learn they sincerely believe they’re doing the right thing, got the right guy, are saving people from crime and pain. When it turns out that the confession was false, they sometimes refuse to accept it and sometimes feel really badly about it. But confessions are as good as it gets for cops and prosecutors, and so they believe.
This is true. People do the easy thing, the thing that feels good. They’ll follow rules, mostly, but people like making their jobs easier, and they want to get the good feelings related to success. These are normal human traits. They cannot be “fixed”, because they aren’t “broken”. You just said so yourself. Nothing you said is new to me, but none of it appears to address what I said. It’s just a standard, accurate description, adding nothing new to the discussion, in response to an attempt to add something new to it.
I know you aren’t fond of comments to your posts that don’t address the points you raised, even if the comment itself is true. Well…
***
My standard response to such comments is to try again, and the result is inevitably wordier, because there’s no evidence in the reply that indicates that my message got through the first time. I know my standard response is flawed, but I haven’t had time yet to design a replacement. Until then, comments unrelated to mine will produce long replies. Or silence, but that’s not an outcome that needs fixing. If you wanted to silence me, you could have done so at any time.
I know this is “about me”, but what it’s really about is keeping unneeded wordiness out of your comment fields. I’m not asking for your help here, just for you to not do something that impedes that outcome.
I know this section’s still pretty personal, but I trust your judgement regarding whether to publish it or omit it. You’ve had my back so far, and I greatly appreciate it, you mean-ass ol’ editor, you.
***
The problem, per Deming, is with the process. That can be fixed – but it will make the process harder, so those who are part of the process believe, and therefore they will do whatever they can to keep the process an easy way to produce success and good feelings.
One can say that these things are obvious, but if you look at the “solutions” to problems with police that have been on offer, it is clear that no one is paying any attention to the “obvious” things.
Reform efforts that are focused on “fixing” the wrong thing cannot work. Deming had to go to Japan to find success because process-runners refused to accept the “obvious”. The police developed their interrogation process, and believe it works really well. This precludes solutions that include trusting the police to accept a different process. In their minds, it will be much harder and produce fewer “good” results, so given the opportunity, they will find ways to make any new system work like the old system that they like. This is actually normal behavior, and you can’t fix normal people.
Best regards,
Nemo