Children get into trouble; it is often the way of the world. If they get into trouble with their parents, that is one thing. But what happens when the get into trouble in a BIG way, like getting arrested? How do parents deal with this and protect their children's rights? Fortunately, the law does allow certain protections for minors, especially when it comes to the Miranda warnings and Fifth Amendment rights.
For example: State v. Sanchez (once he is indicted, a defendant may not waive the right to counsel without the approval of counsel; State v. Presha (where a child is under 14, the absence of a parent renders the child's statement inadmissible as a matter of law, unless the parent or legal guardian is truly unavailable; where the child is 14 to 17, the absence of a parent or legal guardian from the interrogation area is a "highly significant fact" in determining whether a juvenile's waiver of rights was knowing, intelligent and voluntary); and State v. Reed (a knowing waiver of Miranda rights cannot be made if police withhold the fact that an attorney has been retained to represent them - such as one retained by parents when they hear of a child's arrest).
At the end of July, the New Jersey Supreme Court, in State in the Interest of P.M.P., created new, more restrictive rules that police must follow when attempting to obtain a waiver of the right to remain silent for a juvenile suspect. In effect, following the filing of a juvenile petition and the issuance of an arrest warrant, a child mat not waive his right to remain silent and give a statement in the absence of counsel. This is a continuation of the Sanchez ruling in a juvenile context.
This was followed by a ruling on August 12, 2009, that expanded upon the Presha rule about the presence of a parent or guardian during questioning. In State in the Interest of A.S. , the police were called upon to investigate an aggravated sexual assault perpetrated by a 14 year-old female upon her 4 year-old nephew. During the police interview, the 14 year-old suspect was accompanied by an adult advisor, her mother . The problem was that her mother was also the grandmother of the victim. During questioning, the child's mother showed an obvious conflict of interest in favor of the 4-year old victim and took aggressive, affirmative steps to have her daughter waive her right to remain silent, her right to counsel, and to confess. To make matters worse, the police even permitted the child's mother to read her the Miranda rights form! In suppressing the confession, the court advised police and prosecutors that where the adult advisor is known to have a close family relationship to both the victim and the alleged perpetrator, the police must require the presence of an attorney capable of advising the child with respect to his or her rights and potential culpability.
Should your child be arrested, these points are important to remember. A child under 14 cannot be questioned outside the presence of a parent or legal guardian (if you are reachable), and waiver of Miranda is highly suspect if the child is 14 to 17, that parent or legal guardian must be "neutral" or an attorney must be present, and a child cannot waive Miranda outside presence of an attorney if there has been a filing of a juvenile petition and the issuance of an arrest warrant for said child. Should you find out your child has been arrested and have retained an attorney, be sure to inform the police and instruct them to cease all questioning until that attorney (or you) arrives. All we can do for our children is the best we can do; these court rulings should help if they get into serious trouble.