BILL NUMBER: S4980A

SPONSOR: BAILEY
 
TITLE OF BILL:  An act to amend the family court act and the criminal
procedure law, in relation to the custodial interrogation of juveniles
by law enforcement

 
PURPOSE:

This bill makes a number of changes to the Family Court Act to clarify
and protect the rights of children in the custody of law enforcement and
makes corresponding changes to the Criminal Procedure Law to address
children arrested as juvenile offenders and adolescent offenders. The
bill would require that children under 18 consult with an attorney
before they can be subjected to custodial interrogation by law enforce-
ment, thereby ensuring any waiver of rights under Miranda is genuinely
knowing, voluntary, and intelligent. The bill also requires that a child
arrested without a warrant be brought directly to court, as opposed to
the police station, if a parent or legally responsible adult is not
expected to appear for them and they are not being questioned, unless
otherwise required under the Criminal Procedure Law. It also defines the
term "necessary," which circumscribes the limited circumstances under
              

which custodial interrogation of such a child is permissible.

 
SUMMARY OF PROVISIONS:

Section One amends FCA § 305.2(3) to make clear that law enforcement's
obligation to "immediately" notify a parent or person legally responsi-
ble (PLR) that their child has been taken into custody requires that
this notification take place before that child can be taken from the
location at which he or she was taken into custody to the police station
or any other location.

Section Two amends FCA § 305.2(4)(a) to state that when law enforcement
has notified an arrested child's parent or PLR and reasonably believes
that the parent or PLR will appear for the child, law enforcement shall
take that child to his home, the station house, or another agreed upon
location to release him to his parent or PLR.

Section Three amends FCA § 305.2(4)(b) to state that when law enforce-
ment does not reasonably believe that an arrested child's parent or PLR
will appear for the child, law enforcement shall take that child to
family court or, if family court is not in session, to the designated
magistrate for the child's initial appearance under FCA § 307.4.

Section Four amends FCA § 305.2(4)(c) to conform with other amended
subsections and clarify that an arrested child shall only be taken to
detention if the officer did not release the child or bring the child to
family court or the designated magistrate.

Section Five amends FCA § 305.2(5) by deleting a clause related to the
circumstances of questioning, which is moved to the new FCA § 305.2(7)
(see Section Seven, below).

Section Six amends FCA § 305.2(6) for conformity only, by deleting the
phrase "In all other cases."

Section Seven amends and renumbers FCA § 305.2(7) to FCA § 305.2(8) and
adds a new FCA § 305.2(7) which clarifies that an officer may determine
that questioning of a child is necessary only when the officer "reason-
ably determines that the child's life or health, or the life or health
of another individual, is in imminent danger and that the child may have
information that would assist the officer in taking protective action."
Section Seven also amends FCA § 305.2(8) to state that no child shall be
questioned under this section unless and until "the child has consulted
with an attorney in person, by telephone, or by video conference," and
establishes that this consultation may not be waived.

Section Eight creates FCA § 305.2(9), which. establishes that when law
enforcement determines that questioning of a child suspect is necessary,
"in determining the reasonable amount of time for questioning, the offi-
cer shall consider, among other things, the child's age and develop-
mental ability, and the presence or absence of the child's parents or
other persons legally responsible for the child's care."

Section Nine creates FCA § 305.2(10), which establishes that a child's
statement shall be suppressed when the child has not consulted with an
attorney; when a parent or person legally responsible, if present, has
not been advised of and voluntarily waived Miranda; or when the ques-
tioning of the child was not necessary.

Section 10 amends FCA § 724(a) to make clear that law enforcement's
obligation with respect to a child taken into custody as a person in
need of supervision to "immediately" notify a parent or person legally
responsible that their child has been taken into custody requires that
this notification takes place before that child can be taken from the
location at which he or she was taken into custody to the police station
or any other location.

Section 10 also amends FCA § 724(b) by removing language relating to
when law enforcement deems questioning of the child necessary, renumbers
FCA § 724(d) to FCA § 724(e), and inserts a new FCA § 724(d), which
clarifies that an officer may determine that questioning of a child is
necessary only when the officer "reasonably determines that the child's
life or health, or the life or health of another individual, is in immi-
nent danger and that the child may have information that would assist
the officer in taking protective action.  FCA § 724(e) now provides that
in addition to the child's age and the presence or absence of his
parents or other person legally responsible for his care, parental
notification shall be a factor considered in determining the suitability
and reasonable period of time for questioning the child.

Section 10 also creates FCA § 724(f), which provides that statements
made to law enforcement prior to the commencement of a fact-finding
hearing may not be admitted into evidence at a fact-finding hearing.

Section Eleven amends CPL § 140.20(6) to create separate paragraphs and
in paragraph (a) makes clear that law enforcement's obligation with
respect to a child taken into custody as a juvenile offender or as a
person sixteen (or as of October 1, 2019, seventeen) to "immediately"
notify a parent or person legally responsible that their child has been
taken into custody requires that this notification takes place before
that child can be taken from the location at which he/she was taken into
custody to the police station or any other location.

Section Eleven also, in proposed CPL § 140.20(6)(b), which already
provides that a child suspect shall only be questioned by law enforce-
ment when necessary, defines necessary as when the officer "reasonably
determines that the child's life or health, or the life or health of
another individual, is in imminent danger and that the child may have
information that would assist the officer in taking protective action."

Section Eleven also, in proposed CPL § 14020(6)(c), adds the provision
that no child shall be questioned under this section unless and until
"the child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section Eleven also creates CPL § 140.20(6)(e) to establish that a
child's statement shall be suppressed when the child has not consulted
with an attorney; when a parent or person legally responsible, if pres-
ent, has not been advised of and voluntarily waived Miranda; or when the
questioning of the child was not necessary.

Section Twelve amends CPL § 140.27(5) to create separate paragraphs and
in paragraph (a) makes clear that law enforcement's obligation with
respect to a child taken into custody as a juvenile offender or as a
person sixteen (or as of October 1, 2019, seventeen) to "immediately"
notify a parent or person legally responsible that their child has been
taken into custody requires that this notification takes place before
that child can be taken from the location at which he or she was taken
into custody to the police station or any other location.

Section Twelve also, in proposed CPL § 140.27(5)(b), which already
provides that a child suspect shall only be questioned by law enforce-
ment when necessary, defines necessary as when the officer "reasonably
determines that the child's life or health, or the life or health of
another individual, is in imminent danger and that the child may have
information that would assist the officer in taking protective action."

Section Twelve also, in proposed CPL § 140.27(5)(c) adds the provision
that no child shall be questioned under this section unless and until
"the child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section Twelve also creates CPL § 140.27(5)(e) to establish that a
child's statement shall be suppressed when the child has not consulted
with an attorney; when a parent or person legally responsible, if pres-
ent, has not been advised of and voluntarily waived Miranda; or when the
questioning of the child was not necessary.

Section Thirteen amends CPL § 140.40(5) to create separate paragraphs
and in paragraph (a) makes clear that law enforcement's obligation with
respect to a child taken into custody as a juvenile offender or as a
person sixteen (or as of October 1, 2019, seventeen) to "immediately"
notify a parent or person legally responsible that their child has been
taken into custody requires that this notification takes place before
that child can be taken from the location at which he or she was taken
into custody to the police station or any other location.

Section Thirteen also, in proposed CPL § 140.40(5)(b) which already
provides that a child suspect shall only be questioned by law enforce-
ment when necessary, defines necessary as when the officer "reasonably
determines that the child's life or health, or the life or health of
another individual, is in imminent danger and that the child may have
information that would assist the officer in taking protective action."

Section Thirteen also, in proposed CPL § 140.40(5)(c) adds the provision
that no child shall be questioned under this section unless and until
"the child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section Thirteen also creates CPL § 140.40(5)(e) to establish that a
child's statement shall be suppressed when the child has not consulted
with an attorney; when a parent or person legally responsible, if pres-
ent, has not been advised of and voluntarily waived Miranda; or when the
questioning of the child was not necessary.

 
EXISTING LAW:

Existing law in New York State does not ensure that children under 18
years old - with all of their inherent developmental limitations - are
adequately and appropriately able to protect their right to remain
silent pursuant to the 5th Amendment of the United States Constitution.
The Family Court Act and the Criminal Procedure Law already require law
enforcement to "immediately" notify the parent or person legally respon-
sible of a child's arrest. The term "immediate," however, is undefined
under current law, and in practice, law enforcement regularly brings
arrested children to the police station house before notifying parents
or persons legally responsible.  The statutes also state that law
enforcement may only interrogate children when "necessary," but do not
define that crucial term. This ambiguity not only places vulnerable
youth at risk of being unreasonably interrogated, but it also forces law
enforcement to contend with uncertainty about what they are permitted to
do under the law, and leaves the courts with little guidance when called
upon to interpret this requirement. Also under current law, when the
police take a youth into custody and wish to interrogate that youth, the
police must advise the child of his/her right to remain silent and,
whenever possible, notify a parent or responsible adult to assist the
youth in deciding whether to waive this right. Family Court Act § 305.2;
Criminal Procedure Law § 140.20(6). This process does not prevent youth
from waiving their Miranda rights nor does it ensure that waiver is
knowing, voluntary and intelligent, as required by the Constitution.

 
JUSTIFICATION:

The bill makes three crucial changes to § 305.2 of the Family Court Act
and to §§ 140.20(6), 140.27(5) and 140.40(5) of the Criminal Procedure
Law. First, it clarifies that law enforcement cannot take a child to the
station house until they have notified a parent or person legally
responsible. Second, it defines the term "necessary" in the context of
juvenile interrogation. Third, it requires that juveniles consult with
counsel before they can waive their rights under Miranda. The bill also
makes the first two changes to Family Court Act § 724.

Family Court Act §§ 305.2 and 724 and Criminal Procedure Law §§
140.20(6), 140.27(5) and 140.40(5) already require that law enforcement
immediately notify an arrested child's parent or legally responsible
adult that the child has been taken into custody; this proposal clari-
fies that immediate notification must take place before the officer
takes the child to another location. In an era in which all officers are
equipped with mobile phones, they are able to make contact with parents
without first taking children to the station house. In most cases, this
will also mean the officer will be able to make a more immediate deter-
mination whether to bring the child to the station house, to the family
court, or to another location permitted by statute.

Current law establishes that juveniles may only be interrogated by law
enforcement when it is necessary, but it does not define "necessary."
Under the proposal, questioning is defined to be necessary only when
"the officer reasonably determines that the child's life or health, or
the life or health of another individual, is in imminent danger and that
the child may have information that would assist the officer in taking
protective action." Courts already grapple with decisions about when the
interrogation of children by law enforcement is warranted, and have
expressed the importance of clarity in the law regarding both the
circumstances warranting interrogation and what constitutes a reasonable
period of time for questioning. See, for example, Matter of Louis D., 34
Misc.3d 427 (2011).  By providing this dear definition of the term
"necessary," the bill not only ensures that vulnerable young people are
not subject to unwarranted interrogation, but also provides law enforce-
ment and the courts with crucial direction and assurance about what is
permissible under the law.

Under this proposal, unless questioning is necessary, after notifying a
parent, the officer may transport a child to his home, to another agreed
upon location, or to the station house for purposes of releasing the
child to the parent with a desk appearance ticket under Family Court Act
§ 305.2 or after securing a written promise from the parent to bring the
child to the designated lead agency at specified time and place under
Family Court Act § 724. When the officer does not have reason to believe
that the parent will appear for the child, unless questioning is neces-
sary, the officer may bring the child straightaway to family court,
before a designated magistrate, to the designated lead agency, or to
another location specified in § 305.2(4) or § 724. Under the proposed
Criminal Procedure Law provisions, unless questioning is necessary,
after notifying the parent, the officer may release the youth with a
desk appearance ticket or bring the youth to the appropriate court or
otherwise proceed according to the provisions of the CPL.
  This  bill would also establish that under Family Court Act § 3052 and
Criminal Procedure Law §§ 140.20(6), 140.27(5) and  140.40(5),  a  child
suspect  can  only  be  questioned  after consulting with an attorney by
phone, video, or in person. That consultation would be non-waivable, and
the taking of a statement without consultation with counsel,  necessity,
or  waiver  of  Miranda  rights  by a parent if present, would result in
suppression of the statement. Under Family Court Act § 724, a  statement
would  not  be admissible into evidence at a fact finding hearing, since
the petitioner is usually a parent and thus the child can never have the
advice and assistance of a parent who does not have a conflict of inter-
est. This treatment is comparable  to  those  statements  given  to  the
designated lead agency before fact finding.

The  decision to waive one's constitutional right to be silent has enor-
mous consequences, which is why the law requires that  the  decision  be
"knowing,  voluntary,  and intelligent." See Miranda v. Arizona 384 U.S.
436 (1966). Because children are fundamentally  different  from  adults,
different  safeguards  are required in order for a child to make a know-
ing, voluntary and intelligent decision about a Miranda waiver.

The importance of additional  Miranda  protections  for  adolescents  is
well-grounded  in  science. It is firmly established that brain develop-
ment continues into adulthood,  and  in  recent  years,  the  scientific
community has come to a resounding consensus that the prefront al cortex
of  the  brain  -  which  largely governs decision-making and judgment -
generally does not mature until well after the teenage years.* In  fact,
the  research demonstrates that the brain undergoes a "rewiring" process
that is not complete until approximately 25 years of age.** As a result,
youth are not yet able to consider the long-term consequences  of  their
actions  or  to  resist  environmental  pressures as well as adults. The
ability to consider the consequences of one's actions and  vulnerability
to environmental pressure are precisely the kinds of issues at play in a
custodial  interrogation  setting.*** Adolescents especially struggle to
process information and make sound decisions  in  stressful  situations,
such  as  during  interrogation.****  Additionally,  research shows that
adolescents - especially those in the  justice  system,  who  have  high
rates  of  intellectual  disability  -  often  do not have the cognitive
skills necessary to understand the words  or  concepts  in  the  Miranda
warnings.

The  consensus  that  adolescents'  decision-making capabilities are not
fully developed and that, for this reason, young people  require  unique
legal  protections has been recognized and embraced by the United States
Supreme Court. Children are,  in  the  Court's  words,  "generally  less
mature  and  responsible  than adults;" "they often lack the experience,
perspective, and judgment to recognize and avoid choices that  could  be
detrimental to them"; and "they are more vulnerable or susceptible to...
outside  pressures  than  adults." J.D.B.   v. North Carolina, 131 S.Ct.
2394, 2397 (2011)(internal quotations omitted). In addition, the Supreme
Court has recognized that children "have limited understandings  of  the
criminal justice system and the roles of the institutional actors within
it"  Graham  v. Florida, 560 U.S. 48, 78 (2010). Addressing the specific
context of police interrogation, the Supreme  Court  has  observed  that
events  that  "would  leave  a  man cold and unimpressed can overawe and
overwhelm a lad in his early teens." Haley v. Ohio, 332  U.S.  596,  599
(1948).    Finally,  it  has  noted that "no matter how sophisticated, a
juvenile subject of police interrogation cannot be compared to an  adult
subject" J.D.B., 131 S.Ct. at 2403 (internal quotations omitted).

In  fact,  leading professional organizations with expertise about chil-
dren agree that attorney consultation  is  needed  during  interrogation
because of children's developmental limitations. The American Psycholog-
ical  Association, for example, "recommends that particularly vulnerable
suspect populations, including youth, persons with  developmental  disa-
bilities,  and  persons  with  mental  illness,  be provided special and
professional protection during interrogations such as being  accompanied
and  advised by an attorney or professional advocate."***** The American
Academy on Child and Adolescent Psychiatry similarly believes that youth
should have an attorney present during questioning by  police  and  that
"when  interviewing  juvenile  suspects,  police  should  use  terms and
concepts appropriate to the individual's developmental level. Any  writ-
ten  material  should  also  be  geared  to the person's grade level and
cognitive capacity. In general, it is not sufficient to simply  read  or
recite information to a juvenile."******

Unfortunately,  the  presence  of a parent or responsible adult does not
adequately ensure that a child makes a knowing, voluntary  and  intelli-
gent  decision  with respect to his or her Miranda rights. Parents often
have conflicting interests  and  often  misunderstand  the  proceedings.
Because  parents  may teach their children to respect and cooperate with
law enforcement, they may find it difficult to advise a child in custody
not  to  cooperate.  Similarly, parents teach their children to tell the
truth; but often a refusal to speak  -  even  when  the  child  believes
himself  to  be  "innocent"-  is in the youth's legal interests. Parents
often find it hard to believe that their child could possibly do whatev-
er the child is accused of and therefore urge the child  to  speak,  not
realizing  that doing so may well undermine the child's legal interests.
Furthermore, when children are arrested, it often occurs in the  context
of intra-familial disputes, discord, or violence. Resulting conflicts of
interest  force  parents  to choose between, on the one hand, giving the
child in custody the best advice and, on the other, looking out for  the
best  interests  of the other family member involved, which is often the
parent him/herself. All of these issues are compounded when, as is often
the case, the parent has been summoned to  the  police  station  in  the
middle  of  the  night,  is feeling humiliated, resentful, or even angry
with the child, and is unable to muster the kind  of  dispassionate  and
reflective  thought process necessary to best advise the child. Finally,
often the parent or responsible adult him/herself doesn't understand the
meaning and nature of the rights the youth is being asked to waive.

Social science research confirms that the existing parental notification
process to protect the rights of youth  is  inadequate.    Research  has
found  that  when  parents are present during interrogation, they almost
always either do not help their children make  a  decision  or  actually
encourage  their  children  to waive their rights.******* Having a child
rely exclusively on the advice of an  adult  who  may  have  conflicting
interests and who likely does not him/herself understand the meaning and
nature  of  the right at stake and the potential consequences of waiving
that right undermines the purpose of Family Court Act § 305 2 and Crimi-
nal Procedure Law §§ 140.20(6), 140.27(5) and 140.40(5).

Legal counsel would offer expert, objective advice to young people about
their Constitutional right to remain silent and their ability  to  waive
this  right  and  speak  to  the police. Only with the benefit of such a
conflict-free consultation can children make any waiver of this  bedrock
right   knowingly,  voluntarily,  and  intelligently,  in  keeping  with
requirements of the state and federal Constitutions.   For this  reason,
youth  under  18  years  of  age  facing custodial interrogation must be
required to consult with legal counsel to assist in their  understanding
of  their  rights  and the consequences of waiving those rights prior to
waiving their rights under Miranda.

 
LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

Although the provision of counsel for consultation at interrogation will
inevitably impose a cost to the state and local jurisdictions, this bill
will also provide an important cost-saving benefit. Under  current  law,
juvenile  defense  attorneys  and  criminal defense attorney often spend
significant amounts of time litigating the legality  of  their  clients'
interrogation  by law enforcement in what are known as Huntley hearings.
These hearings can require several lengthy court appearances,  consuming
significant resources of defense attorneys, prosecutors, law enforcement
witnesses,  and  judges. If this bill becomes law, it will eliminate the
need for a Huntley hearing in the vast majority of cases,  significantly
reducing the strain on the many agencies and individuals involved.

 
EFFECTIVE DATE:
This act shall take effect April 1, 2020.
*  Linda  B. Chamberlain, The Amazing Teen Brain: What Every Child Advo-
cate Needs to Know, 28 A.B.A. CHILD. L. PRAC.  No.  2  at  17-18  (April
2009).
**  M.  Arain  et  al.,  Maturation of the Adolescent Brain, 9 NEUROPSY-
CHIATR.     DIS.     TREAT.     449-461     (2013),     available     at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3621648/,  citing  L. Gavin
et al., Sexual and Reproductive Health of persons  aged  10-24  years  -
United States, 2002-2007, 58(6) MMWR SURVEILL. SUMM. 1-58 (2009).
***  See  Goldstein  et  al., Waving Good-bye to Waiver: A Developmental
Argument Against Youths' Waiver ofMiranda Rights, Legislation and Public
Policy, vol. 21 (2018); Elizabeth Cauffman & Laurence Steinberg,  Emerg-
ing  Findings  from  Research  on  Adolescent  Development  and Juvenile
Justice, 7 Victims and Offenders 428, 433  (2012);  Laurence  Steinberg,
Adolescent  Development  and  Juvenile  Justice,  5 Ann. Rev.   Clinical
Psychol. 459, 465-71 (2009); Laurence Steinberg, The Science of  Adoles-
cent  Brain  Development  and  Its Implication for Adolescent Rights and
Responsibilities, in Human Rights and  Adolescence  59,  64  (Jacqueline
Bhabha.  ed.,  2014);  Dustin  Albert & Laurence Steinberg, Judgment and
Decision-Making in Adolescence, 21 J. Res.  Adolescence 211(2011); Linda
Van Leijenhorst et al., Adolescent Risky Decision-Making: Neurocognitive
Development of Reward and Control Regions,  51  Neuroimage  345;  353-54
(2010).  Sarah-Jayne  Blakemore & Trevor W.  Robbins, Decision-Making in
the Adoleicent Brain, 15 Nature Neuroscience 1184, 1186 (2012).
**** See Goldstein et al., supra.
***** Resolution on Interrogations of Criminal  SuspeCts,  Am.  Psychol.
Ass'n (2014), http://www.apa.org/about/policy/interrogations.aspx.
******  Interviewing  and  Interrogating  Juvenile  Suspects,  Am. Acad.
Child     &     Adolescent     Psychiatry      (Mar.      7,      2013),
https://www.aacap.org/aacapipolicy_statements/2013/Intervievving_and_
Interrogating_Juvenile_Suspects.aspx.
*******  Jodi  L.  Viljoen  et al., Legal Decisions of Preadolescent and
Adolescent Defendants: Predictors of Confessions,  Pleas,  Communication
with  Attorneys,  and  Appeals,  29  Law  & Hum. Behay. 253, 261 (2005).
Jennifer L Woolard et al., Examining  Adolescents'  and  their  Parents'
Conceptual  & Practical Knowledge of Police Interrogation: A Family Dyad
Approach, 37 J. Youth & Adolescence 685, 690-94 (2008).

                                
 
BILL NUMBER: S4980b

SPONSOR: BAILEY
 
TITLE OF BILL:

An act to amend the family court act and the criminal procedure law, in
relation to the custodial interrogation of juveniles by law enforcement

 
PURPOSE:

This bill makes a number of changes to the Family Court Act to clarify
and protect the rights of children in the custody of law enforcement and
makes corresponding changes to the Criminal Procedure Law to address
children arrested as juvenile offenders and adolescent offenders. The
bill would require that children under 18 consult with an attorney
before they can be subjected to custodial interrogation by law enforce-
ment, thereby ensuring any waiver of rights under Miranda is genuinely
knowing, voluntary, and intelligent. The bill also requires that a child
arrested without a warrant be brought directly to court, as opposed to
the police station, if a parent or legally responsible adult is not
expected to appear for them and they are not being questioned, unless
otherwise required under the Criminal Procedure Law. It also defines the
              

term "necessary," which circumscribes the limited circumstances under
which custodial interrogation of such a child is permissible.

 
SUMMARY OF PROVISIONS:

Section One amends FCA § 305.2(3) to make clear that law enforcement's
obligation to "immediately" notify a parent or person legally responsi-
ble (PLR) that their child has been taken into custody requires that
this notification take place before that child can be taken from the
location at which he or she was taken into custody to the police station
or any other location.

Section Two amends FCA § 305.2(4)(a) t.o state that when law enforcement
has notified an arrested child's pare t or PLR and reasonably believes
that the parent or PLR will appear for the child, law enforcement shall
take that child to his home, the station house, or another agreed upon
location to release him to his parent or PLR.

Section Three amends FCA § 305.2(4)(b) to state that when law enforce-
ment does not reasonably believe that an arrested child's parent or PLR
will appear for the child, law enforcement shall take that child to
family court or, if family court is not in session, to the designated
magistrate for the child's initial appearance under FCA § 307.4.

Section Four amends FCA § 305.2(4)(c) to conform with other amended
subsections and clarify that an arrested child shall only be taken to
detention if the officer did not release the child or bring the child to
family court or the designated magistrate.

Section Five amends FCA § 305.2(5) by deleting a clause related to the
circumstances of questioning, which is moved to the new FCA § 305.2(7)
(see Section Seven, below).

Section Six amends FCA § 305.2(6) for conformity only, by deleting the
phrase "In all other cases."


Section Seven amends and renumbers FCA § 305.2(7) to FCA § 305.2(8) and
adds a new FCA § 305.2(7) which clarifies that an officer may determine
that questioning of a child is necessary only when the officer "reason-
ably determines that the child's life or health, or the life or health
of another individual, is in imminent danger and that the child may have
information that would assist the officer in taking protective action."
Section Seven also amends FCA § 305.2(8) to state that no child shall be
questioned under this section unless and until "the child has consulted
with an attorney in person, by telephone, or by video conference," and
establishes that this consultation may not be waived.

Section Eight creates FCA § 305.2(9), which. establishes that when law
enforcement determines that questioning of a child suspect is necessary,
"in determining the reasonable amount of time for questioning, the offi-
cer shall consider, among other things, the child's age and develop-
mental ability, and the presence or absence of the child's parents or
other persons legally responsible for the child's care."

Section Nine creates FCA § 305.2(10), which establishes that a child's
statement shall be suppressed when the child has not consulted with an
attorney; when a parent or person legally responsible, if present, has
not been advised of and voluntarily waived Miranda; or when the ques-
tioning of the child was not necessary.

Section 10 amends FCA § 724(a) to make clear that law enforcement's
obligation with respect to a child taken into custody as a person in
need of supervision to "immediately" notify a parent or person legally
responsible that their child has been taken into custody requires that
this notification takes place before that child can be taken from the
location at which he or she was taken into custody to the police station
or any other location.

Section 10 also mends FCA § 724(b) by removing language relating to when
law enforcement deems questioning of the child necessary, renumbers FCA
§ 724(d) to CA § 724(e), and inserts a new FCA § 724(d), which clarifies
that a officer may determine that questioning of a child is necessary
only when the officer "reasonably determines that the child's life or
health, or the life or health of another individual, is in imminent
danger and that the child may have information that would assist the
officer in taking protective action. FCA § 724(e) now provides that in
addition to the child's age and the presence or absence of his parents
or other person legally responsible for his care, parental notification
shall be a factor considered in determining the suitability and reason-
able period of time for questioning the child.

Section 10 also creates FCA § 724(f), which provides that statements
made to law enforcement prior to the commencement of a fact-finding
hearing may not be admitted into evidence at a fact-finding hearing.

Section Eleven amends CPL § 140.20(6) to create separate paragraphs and
in paragraph (a) makes clear that law enforcement's obligation with
respect to a child taken into custody as a juvenile offender or as a
person sixteen (or as of October 1, 2019, seventeen) to "immediately"
notify a parent or person legally responsible that their child has been
taken into custody requires that this notification takes place before
that child can be taken from the location at which he/she was taken into
custody to the police station or any other location.

Section Eleven also, in proposed CPL § 140.20(6) (b), which already
enforcement when necessary, defines necessary as when the officer
"reasonably determines that the child's life or health, or the life or
health of another individual, is in imminent danger and that the child
may have information that would assist the officer in taking protective
action."

Section Eleven also, in proposed CPL § 14020(6)(c), adds the provision
that no child shall be questioned under this section unless and until
"the child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section Eleven also creates CPL . 140.20(6)(e) to establish that a
child's statement shall be suppressed when the child has not consulted
with an attorney; when a parent or person legally responsible, if pres-
ent, has not been advised of and voluntarily waived Miranda; or when the
questioning of the child was not necessary.

Section Twelve amends CPL § 140.27(5) to create separate paragraphs and
in paragraph (a) makes clear that law enforcement's obligation with
respect to a child taken into custody as a juvenile offender or as a
person sixteen (or as of October 1, 2019, seventeen) to "immediately"
notify a parent or person legally responsible that their child has been
taken into custody requires that this notification takes place before
that child can be taken from the location at which he or she was taken
into custody to the police station or any other location.

Section Twelve also, in proposed CPL § 140.27(5) (b), which already
provides that a child suspect shall only be questioned by law enforce-
ment w n necessary, defines necessary as when the Officer "reasonably
determines that the child's life or health, or the life or health of
another individual, is in imminent danger and that the child may have
information that would assist the officer in taking protective action."

Section Twelve also, in proposed CPL § 140.27(5)(c) adds the provision
that no child shall be questioned under this section unless and until
"the child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section Twelve also creates CPL § 140.27(5)(e) to establish that a
child's statement shall be suppressed when the child has not consulted
with an attorney; when a parent or person legally responsible, if pres-
ent, has not been advised of and voluntarily waived Miranda; or when the
questioning of the child was not necessary.

Section Thirteen amends CPL § 140.40(5) to create separate paragraphs
and in paragraph (a) makes clear that law enforcement's obligation with
respect to a child taken into custody as a juvenile offender or as a
person sixteen (or as of October 1, 2019, seventeen) to "immediately"
notify a parent or person legally responsible that their child has been
taken into custody requires that this notification takes place before
that child can be taken from the location at which he or she was taken
into custody to the police station or any other location.

Section Thirteen also, in proposed CPL § 140.40(5)(b) which already
provides that a child suspect shall only be questioned by law enforce-
ment when necessary, defines necessary as when the officer "reasonably
determines that the child's life or health, or the life or health of
another individual, is in imminent danger and that the child may have
information that would assist the officer in taking protective action."

Section Thirteen also, in proposed CPL § 140.40(5)(c) adds the provision
that no child shall be questioned under this section unless and until
"the child has consulted with an attorney in person, by telephone, or by
video conference," and establishes that this consultation may not be
waived.

Section Thirteen also creates CPL § 140.40(5)(e) to establish that a
child's statement shall be suppressed when the child has not consulted
with an attorney; when a parent or person legally responsible, if pres-
ent, has not been advised of and voluntarily waived Miranda; or when the
questioning of the child was not necessary.

 
EXISTING LAW:

Existing law in New York State does not ensure that children under 18
years old - with all of their inherent developmental limitations - are
adequately and appropriately able to protect their right to remain
silent pursuant to the 5th Amendment of the United States Constitution.
The Family Court Act and the Criminal Procedure Law already require law
enforcement to "immediately" notify the parent or person legally respon-
sible of a child's arrest. The term "immediate," however, is undefined
under current law, and in practice, law enforcement regularly brings
arrested children to the police station house before notifying parents
or persons legally responsible The statutes also state that law enforce-
ment may only interrogate children when "necessary," but do not define
that crucial term. This ambiguity not only places vulnerable youth at
risk of being unreasoably interrogated, but it also forces law enforce-
ment to contend with uncertainty about what they are permitted to do
under the law, and leaves the courts with little guidance when called
upon to interpret this requirement. Also under current law, when the
police take a youth into custody and wish to interrogate that youth, the
police must advise the child of his/her right to remain silent and,
whenever possible, notify a parent or responsible adult to assist the
youth in deciding whether to waive this right.  Family Court Act §
305.2; Criminal Procedure Law § 140.20(6). This process does not prevent
youth from waiving their Miranda rights nor does it ensure that waiver
is knowing, voluntary and intelligent, as required by the Constitution.

 
JUSTIFICATION:

The bill makes three crucial changes to § 305.2 of the Family Court Act
and to §§ 140.20(6), 140.27(5) and 140.40(5) of the Criminal Procedure
Law. First, it clarifies that law enforcement cannot take a child to the
station house until they have notified a parent or person legally
responsible. Second, it defines the term "necessary" in the context of
juvenile interrogation. Third, it requires that juveniles consult with
counsel before they can waive their rights under Miranda. The bill also
makes the first two changes to Family Court Act § 724.

Family Court Act §§ 305.2 and 724 and Criminal Procedure Law §§
140.20(6), 140.27(5) and 140.40(5) already require that law enforcement
immediately notify an arrested child's parent or legally responsible
adult that the child has been taken into custody; this proposal clari-
fies that immediate notification must take place before the officer
takes the child to another location. In an era in which all officers are
equipped with mobile phones, they are able to make contact with parents
without first taking children to the station house. In most cases, this
will also mean the officer will be able to make a more immediate deter-
mination whether to bring the child to the station house, to the family
court, or to another location permitted by statute.

Current law establishes that juveniles may only be interrogated by law
enforcement when it is necessary, but it does not define "necessary."
Under the proposal, questioning is defined to be necessary only when
"the officer reasonably determines that the child's life or health, or
the life or health of another individual, is in imminent danger and that
the child may have information that would assist the officer in taking
protective action." Courts already grapple with decisions about when the
interrogation of children by law enforcement is warranted, and have
expressed the importance of clarity in the law regarding both the
circumstances warranting interrogation and what constitutes a reasonable
period of time for questioning. See, for example, Matter of Louis D., 34
Misc,3d 427 (2011). By providing this dear definition of the term
"necessary," the bill not only ensures that vulnerable young people are
not subject to unwarranted interrogation, but also provides law enforce-
ment and the courts with crucial direction and assurance about what is
permissible under the law.

Under this proposal, unless questioning is necessary, after notifying a
parent, the officer m y transport a child to his home, to another greed
upon location, or to he station house for purposes of releasing t e
child to the parent w th a desk appearance ticket under Family Court Act
§ 305.2 or after securing a written promise from the parent to bring the
child to the designated lead agency at specified time and place under
Family Court Act § 724. When the officer does not have reason to believe
that the parent will appear for the child, unless questioning is neces-
sary, the officer may bring the child straightaway to family court,
before a designated magistrate, to the designated lead agency, or to
another location specified in § 305.2(4) or § 724. Under the proposed
Criminal Procedure Law provisions, unless questioning is necessary,
after notifying the parent, the officer may release the youth with a
desk appearance ticket or bring the youth to the appropriate court or
otherwise proceed according to the provisions of the CPL.

This bill would also establish that under Family Court Act § 3052 and
Criminal Procedure Law §§ 140.20(6), 140.27(5) and 140.40(5), a child
suspect can only be questioned after consulting with an attorney by
phone, video, or in person. That consultation would be non-waivable, and
the taking of a statement without consultation with counsel, necessity,
or waiver of Miranda rights by a parent if present, would result in
suppression of the statement. Under Family Court Act § 724, a statement
would not be admissible into evidence at a fact finding hearing, since
the petitioner is usually a parent and thus the child can never have the
advice and assistance of a parent who does not have a conflict of inter-
est. This treatment is comparable to those statements given to the
designated lead agency before fact finding.

The decision to waive one's constitutional right to be silent has enor-
mous consequences, which is why the law requires that the decision be
"knowing, voluntary, and intelligent." See Miranda v.  Arizona 384 U.S.
436 (1966). Because children are fundamentally different from adults,
different safeguards are required in order for a child to make a know-
ing, voluntary and intelligent decision about a Miranda waiver.

The importance of additional Miranda protections for adolescents is
well-grounded in science. It is firmly established that brain develop-
ment continues into adulthood, and in recent years, the scientific
community has come to a resounding consensus that the prefront al cortex
of the brain - which largely governs decision-making and judgment gener-
ally does not mature until well after the teenage years.* In fact, the
research demonstrates that the brain undergoes a "rewiring" process that
is not complete until approximately 25 years of age.** As a result,
youth are not yet able to consider the long-term consequences of their
actions or to resist environmental pressures as well as adults. The
ability to consider the consequences of one's actions and vulnerability
to environmental pressure are precisely the kinds of issues at play in a
custodial interrogation setting.*** Adolescents especially struggle to
process information and make sound decisions in stressful situations,
such as during interrogation.**** Additionally, research shows that
adolescents - especially those in the justice system, who have high
rates of intellectual disability - often do not have the cognitive
skills necessary to understand the words or concepts in the Miranda
warnings.

The consensus that adolescents' decision-making capabilities are not
fully developed and that, for this reason, young people require unique
legal protections has been recognized and embraced by the United States
Supreme Court. Children are, in the Court's words, "generally less
mature and responsible than adults;" "they often lack the experience,
perspective, and judgment to recognize and avoid choices that could be
detrimental to them"; and "they are more vulnerable or susceptible to...
outside pressures than adults." J.D.B.V. North Carolina, 131 S.Ct.
2394, 2397 (2011)(internal quotations omitted). In addition, the Supreme
Court has recognized that children "have limited understandings of the
criminal justice system and the roles of the institutional actors within
it" Graham v. Florida, 560 U.S. 48, 78 (2010). Addressing the specific
context of police interrogation, the Supreme Court has observed that
events that "would leave a man cold and unimpressed can overawe and
overwhelm a lad in his early teens."  Haley v. Ohio, 332 U.S. 596, 599
(1948).Finally, it has noted that "no matter how sophisticated, a juve-
nile subject of police interrogation cannot be compared to an adult
subject" J.D.B., 131 S.Ct. at 2403 (internal quotations omitted).

In fact, leading professional organizations with expertise about chil-
dren agree that attorney consultation is needed during interrogation
because of children's developmental limitations. The American Psycholog-
ical Association, for example, "recommends that particularly vulnerable
suspect populations, including youth, persons with developmental disa-
bilities, and persons with mental illness, be provided special and
professional protection during interrogations such as being accompanied
and advised by an attorney or professional advocate."***** The American
Academy on Child and Adolescent Psychiatry similarly believes that youth
should have an attorney present during questioning by police and that
"when interviewing juvenile suspects, police should use terms and
concepts appropriate to the individual's developmental level. Any writ-
ten material should also be geared to the person's grade level and
cognitive capacity. In general, it is not sufficient to simply read or
recite information to a juvenile."******

Unfortunately, the presence of a parent or responsible adult does not
adequately ensure that a child makes a knowing, voluntary and intelli-
gent decision with respect to his or her Miranda rights.  Parents often
have conflicting interests and often misunderstand the proceedings.
Because parents may teach their children to respect and cooperate with
law enforcement, they may find it difficult to advise a child in custody
not to cooperate. Similarly, parents teach their children to tell the
truth; but often a refusal to speak - even when the child believes
himself to be "innocent"- is in the youth's legal interests. Parents
often find it hard to believe that their child could possibly do whatev-
er the child is accused of and therefore urge the child to speak, not
realizing that doing so may well undermine the child's legal interests.
Furthermore, when children are arrested, it often occurs in the context
of intra-familial disputes, discord, or violence. Resulting conflicts of
interest force parents to choose between, on the one hand, giving the
child in custody the best advice and, on the other, looking out for the
best interests of the other family member involved, which is often the
parent him/herself. All of these issues are compounded when, as is often
the case, the parent has been summoned to the police station in the
middle of the night, is feeling humiliated, resentful, or even angry
with the child, and is unable to muster the kind of dispassionate and
reflective thought process necessary to best advise the child. Finally,
often the parent or responsible adult him/herself doesn't understand the
meaning and nature of the rights the youth is being asked to waive.

Social science research confirms th t the existing parental notification
process to protect the rights of youth is inadequate.Research has found
that when parents are present during interrogation, they almost always
either do not help their children make a decision or actually encourage
their children to waive their rights.******* Having a child rely exclu-
sively on the advice of an adult who may have conflicting interests and
who likely does not him/herself understand the meaning and nature of the
right at stake and the potential consequences of waiving that right
undermines the purpose of Family Court Act § 305 2 and Criminal Proce-
dure Law §§ 140.20(6), 140.27(5) and 140.40(5).

Legal counsel would offer expert, objective advice to young people about
their Constitutional right to remain silent and their ability to waive
this right and speak to the police. Only with the benefit of such a
conflict-free consultation can children make any waiver of this bedrock
right knowingly, voluntarily, and intelligently, in keeping with
requirements of the state and federal Constitutions.For this reason,
youth under 18 years of age facing custodial interrogation must be
required to consult with legal counsel to assist in their understanding
of their rights and the consequences of waiving those rights prior to
waiving their rights under Miranda.

 
LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

Although the provision of counsel for consultation at interrogation will
inevitably impose a cost to the state and local jurisdictions, this bill
will also provide an important cost-saving benefit. Under current law,
juvenile defense attorneys and criminal defense attorney often spend
significant amounts of time litigating the legality of their clients'
interrogation by law enforcement in what are known as.  Huntley hear-
ings. These hearings can require several lengthy court appearances,
consuming significant resources of defense attorneys, prosecutors, law
enforcement witnesses, and judges. If this bill becomes law, it will
eliminate the need for a Huntley hearing in the vast majority of cases,
significantly reducing the strain on the many agencies and individuals
involved.

 
EFFECTIVE DATE:1
This act shall take effect April 1, 2021.  * Linda B. Chamberlain, The
Amazing Teen Brain: What Every Child Advocate Needs to Know, 28 A.B.A.
CHILD. L. PRAC. No. 2 at 17-18
(April 2009).  ** M. Arain et al., Maturation of the Adolescent Brain, 9
NEUROPSY- CHIATR.DIS.TREAT.449-461(2013),availableat
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3621648/, citing L. Gavin
et al., Sexual and Reproductive Health of persons aged 10-24 years
United States, 2002-2007, 58(6) MMWR SURVEILL. SUMM. 1-58 (2009).  ***
See Goldstein et al., Waving Good-bye to Waiver: A Developmental Argu-
ment Against Youths' Waiver of Miranda Rights, Legislation and Public
Policy, vol. 21 (2018); Elizabeth Cauffman & Laurence Steinberg, Emerg-
ing Findings from Research on Adolescent Development and Juvenile
Justice, 7 Victims and Offenders 428, 433 (2012); LaurencSteinberg,
Adolescent Development and Juvenile Justice, 5 Ann. Re .Clinical
Psychol. 459, 65-71 (2009); Laurence Steinberg, The Science of Adoles-
cent Brain Development and Its Implication for Adolescent Rights and
Responsibilities, in Human Rights and Adolescence 59, 64
  (Jacqueline  Bhabha.  ed.,  2014); Dustin Albert & Laurence Steinberg,
Judgment and Decision-Making in  Adolescence,  21  J.  Res.  Adolescence
211(2011);  Linda Van Leijenhorst et al., Adolescent Risky Decision-Mak-
ing: Neurocognitive  Development  of  Reward  and  Control  Regions,  51
Neuroimage  345;  353-54  (2010).  Sarah-Jayne  Blakemore  &  Trevor  W.
Robbins, Decision-Making in the Adoleicent Brain, 15 Nature Neuroscience
1184, 1186 (2012).  **** See Goldstein et al., supra.  *****  Resolution
on  Interrogations  of  Criminal  Suspects, Am. Psychol.   Ass'n (2014),
http://www.apa.org/about/policy/interrogations.aspx.  ******  Interview-
ing     and     Interrogating     Juvenile     Suspects,    Am.    Acad.
Child&AdolescentPsychiatry(Mar.7,2013),
https://www.aacap.org/aacapipolicy_statements/2013/Intervievving_and_
Interrogating_JuvenileSuspects.aspx.  ******* Jodi L.  Viljoen  et  al.,
Legal  Decisions  of Preadolescent and Adolescent Defendants: Predictors
of Confessions, Pleas, Communication with Attorneys, and Appeals, 29 Law
& Hum. Behay. 253, 261 (2005). Jennifer  L  Woolard  et  al.,  Examining
Adolescents'  and  their  Parents'  Conceptual  & Practical Knowledge of
Police Interrogation: A Family Dyad Approach, 37 J. Youth &  Adolescence
685, 690-94 (2008).