JUVENILE RIGHTS

THE BEGINNING OF JUVENILE RIGHTS: Prior to 1967, children were not afforded many of the rights afforded to adults. However, in 1967, a 15 year old Gerald Francis Gault was taken into custody for allegedly making an "lewd or indecent" telephone call to his neighbor Mrs. Ora Cook.

According to Gault, it was his friend Ronald Lewis who was at this house who made the telephone call. The court sentenced him to the State Industrial School until the age of 21. The alleged victim was not present any the court proceedings and the juvenile court relied on hearsay evidence to convict the child. At the time Arizona law did not permit any appeals in a juvenile case. The McGhee Gila County Superior Court dismissed the habeus corpus writ and an appeal followed. The basis for the appeal were as follows:

First Grounds for Appeal : (1) the Arizona Juvenile Code was unconstitutional because it (a) did not require that either the accused Gerald Francis Gault or his parents be notified of the specific charges against him; (b) did not require that his parents be properly notified of the hearings; and (c) did not allow any juvenile appeal of juvenile court decisions in Arizona.

Second Grounds for Appeal: (2) . the Gila County Juvenile Court's actions constitued a denial of due process becuase of (a) the lack of notice of the charges against Gault or of the juvenile court proceedings; (b) the court's failure to inform the Gaults of their right to a lawyer, right to confront an accuser, and right to remain silent; (c) the admission of "unsworn hearsay testimony"; and (d) the lack of any records of the proceedings.

The case went all the way to the United States Supreme Court.

In a landmark decision, In re Gault, 387 U.S. 1 (1967), the United States Supreme Court established that children under the fourteenth amendment accused of crimes in a delinquency proceeding must be given many of the same due process rights as adults such as the right to timely notification of charges, the right to confront witnesses, the right against self-incrimination, and the right to counsel.

COMMON JUVENILE RIGHTS QUESTIONS

Can a child receive capital punishment for a crime committed as juvenile?

Roper v. Simmons, 543 U.S. 551 (2005), the United States Supreme Court was a decision in which the held that it is unconstitutional to impose capital punishment for crimes committed while under the age of 18.

The Courts 5-4 decision overruled the Court's prior ruling upholding such sentences on offenders above or at the age of 16, in Stanford v. Kentucky, 492 U.S. 361 (1989), overturning statutes in 25 states that had the penalty set lower.

Can a child receive life in prison without the possibilty of parole for a non homicide crime?

In 2010, the United States Supreme Court in the case of Graham v. Florida ruled that children cannot be sentenced to life imprisonment without parole for non-homicide offenses.

The U.S. Supreme Court decided whether Roper v. Simmons which had abolished the death penalty for juvenile offenders should also apply to sentences without the possibility of parole for children. Justice Kennedy stated, "The constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit a homicide. A state need not guarantee the offender eventual release, but if it imposes a sentence of life it must provide him or her with some realistic opportunity to obtain release before the end of that term. The Judgement of the First District Court of Appeal of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion."

Can a child receive a life sentence?

Yes. If a child is prosecuted as an adult, he or she can receive a life sentence.

If a child is prosecuted in juvenile court, he or she can receive a sentence commonly called "juvenile life" that carries life but will be incarcerated only until the age of 25 years of age at the Department of Juvenile Justice (formerly the California Youth Authority.)

Does my child have a right to a jury trial?

The California Supreme Court has held that children do not have a right to a jury trial in a juvenile court adjudication. All trials are done by a juvenile judge acting in the role of jurors.

Does my child have a right to bail?

No. There is no right to bail in a juvenile court case.

If your child is taken into temporary custody by a police officer, there are four options that can be done by law enforcement:

1. Release your child
2. Deliver your child to a public or private shelter.
3. Prepare a written notice to appear.
4. Take your child to a probation officer.
   

Phone Calls

When a police officer takes your child to a probation officer at juvenile hall, that officer has a duty to notify your child’s parent or guardian.

Two Phone Calls

1. Your child has a juvenile right to make two phone calls.  One to his parent or guardian, a responsible relative or his employer.  
2. Your child also has a juvenile right to make a second call to an attorney.

The Law Offices of George Kita accepts collect calls from jail or juvenile hall.  However, by law, your child has a juvenile right to make the calls at public expense if the call is local and made in the presence of a public office or employee.  Any public employee who willfully deprives your child of this right is guilty of a misdemeanor pursuant to WIC 627. 

Whenever your child is taken before a probation officer, he or she is required to inform your child and his or her parent or guardian that anything your child says can be used against him/her and that your child has a right to remain silent, and have a counsel present during interrogation, and inform the child that he has a right to have an appointed counsel if your child cannot afford an attorney.

School Searches. Can school officials search my childs locker?

Courts have held that school officals only need a resonable suspicion of criminal activity to justify a search of your school locker. Reasonable suspicion is a lower standard that probable cause which is necessary for police to search your property on or off school campus.

Does my childs disruptive behavior by itself justify the school teacher or school administrator to search his or her belongings and backpack during school hours?

No. It is a two prong test to determine whether the school search was reasonable. (1) Was the search justified at its inception and (2) Was the search as actually conducted, reasonably related to the circumstances that justified the search.

Can school officials conduct a strip search when there is no corroboration to a anonymous student tip that the child has drugs on his or her person?

No. The 2nd Circuit Federal Court of Appeals in 2006 state that because of the intrusive nature of a strip search, an uncorroborated student tip combined with a unrelated student disciplinary problem and possession of cigaretes in her purse along with a suspcious manner of her denial are all insufficient to justify a strip search for marijuana.

Are random use of metal detectors of students legal?

Yes.

I gave the police permission to search my sons property in his room over my sons objection. Is this a legal consent search to allow the police since I am the homeowner?

No. In 1979, the California Supreme Court stated that this was not a proper consent search.

The police want to speak with me. Does my child have to talk to the police?

If police ask your child for his or her name or identification, your child should tell them the truth. If the police ask your child about criminal activity, your child is not required to speak with them. Your child has a right to refuse any further quesitoning and your child should state that he or she wants a lawyer.

The police interviewed my child without a parent present. Is this legal?

Nowhere in the constitution does it say that your parents must be present during interrogation. Thus there is no constitutional right to have a parent present during questioning.

However, if your child requested a parent to be present during interrogation, this could be important as it relevant as to whether any statements made to the police were freely and voluntarily given. If statements were not freely and voluntarily given, these statements may possibly be excluded.

In 1971, the California Supreme Court stated that a minor's request to see a parent creates a presumption that the child desired to invoke his or her rights under the fifth amendment.

However, the United States Supreme Court in 1979 stated that the courts are required to look into the totality of circumstances surrounding the interrogation in determing whether someone has waived the Fifth Amendment privilege.

In 2010, the California Court of Appeals stated that a childs request during interrogation to speak to his father was not by itself an invocation of the Fifth Amendment.

The police let the child be interviewed with the parent present. Are they allowed to secretly tape record us?

Police employ a commmon tactic where they at some point leave the parent and child alone in the interrogation room. They then watch thru hidden cameras and listen to recorded conversations that take place between a parent and the child. In 1989, the California Court of Appeals stated this is not a privileged communication and is not a violation of the Fourth Amendment right to privacy or the Sixth Amendment right to counsel. This evidence can be used against your child.

Does the length of the interrogation relevant in determining whether the confession is voluntary?

Yes. A lengthy interrogation is relevant in determining whether the convession was involuntary.

In 2010, the U.S. Court of Appeals for the 9th Circuit handled a case involving a child interrogated for more than 12 hours. The court stated that the relentess overnight questioning by numerous police officers overbore the will of that child rendering his confession involuntary. The court overturned that conviction. The police officers in that case also downplayed the significance of the Miranda rights prior to the 12 hour marathon questioning of the child.

The police interviewed my child twice. The first time, they did not read my child his Miranda Rights. The second time they did. Is my child's statements to the police admissible?

Police have been trained to get around Miranda by not reading the child his or her rights, getting the incriminating information, and then reading the Miranda rights and asking the child the same questions that were already asked earlier.

In the case of Missouri v. Seibert, the United States Supreme Court in 2004 stated that it depends on how effective the Miranda rights were when given and other factors. Justice Souter stated that Courts should consider "the completeness and detail of the questions in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree the interrogator's questions treated the second round as continous with the first."

The police detective told my child that he would write in his report that my child was honest or lying. Is his confession admissible?

In 1993, the California Court of Appeals ruled that when a police officer told a child that honesty would be noted in the police report as would be lying that this conduct constitued an implied promised of leniency and therefore the confession was ruled by the court to be involuntary and inadmissible.

My child took a deal and admitted the charge. Can we file an appeal to challenge the voluntariness of the confession?

In California, the Court of Appeals in 1989 stated that the volunatiness of a confession may not be reviewed on appeal if the child admits the petition.

What is the standard of proof on the issue of whether a child's confession is voluntary?

The standard is preponderance of evidence.

The Court must consider and evaluate age, intelligence, education, and ability to comprehend. Thus a court can take into consideration if the child has a low IQ level, whether the child is very young in age, the education level of the child and child's ability to comprehend.

Can I leave without talking to the police?

You should always ask the police if you are free to leave. If the police tell you that you are not free to go , or they have physically restrained you by handcufs or pointing a weapon at you, that law may consider that you have been detained.

Can a misdemeanor charge be prosecuted as a felony if there is a gang enhancement?

Yes. The California Supreme Court states that a misemeanor offense can be prosecuted as a felony if the misdemeanor was committed was committed for the benefit of, or in association with, a criminal street gang.

Can Gang Registration be required if the current crime is not gang related?

No. Even if the child had admitted to being a gang member in the past, the court must make a finding that the current crime is gang related. The underlying new case must be gang related to trigger a gang registration requirement.

Can a court impose a gang injunction to enjoin children from carrying beepers or pens or associating with other known gang members?

Yes. The California Supreme Court states that gang members may be enjoined from associated with each other.

Does my child have a right to his or her own interpreter throughout all juvenile court proceedings?

Yes. A Juvenile Defense Lawyer may not waive this right without consulting with the child. The waiver must be knowing and intelligent. The reason being is that this child has a right to know what is being said at all stages of the case as it may affect his or her ability to participate in his or her case.

Does my child have rights at every stage of the court proceedings?

Yes, Juveniles also have constitutional rights at every stage of the court proceedings including but not limited to the following:

(1) to know the nature of the allegations against the juvenile;

(2) to be represented by counsel;

(3) to have a speedy trial;

(4) to confront witnesses against him;

(5) to cross-examine witnesses against him;

(6) to obtain witnesses or tangible evidence by compulsory process;

(7) to introduce evidence on his or her own behalf;

(8) to refrain from testifying against him or herself;

(9) to have the Deputy District Attorney prove the charge beyond a reasonable doubt that he or she committed the delinquent act.

Contact our offices at (626) 859-2295 right now for a free consultation.

Our Juvenile Defense Lawyers are uniquely qualified to represent children. Most criminal defense lawyers primarily handle adult cases and therefore lack the experience and knowledge to provide effective legal representation in juvenile court. Mr. Kita has successfully handled more than 1000 juvenile cases. Your child's freedom and future is at stake. Call our office right now for a free consulation. Your child deserves the best juvenile defense possible.

Call the Law Offices of George Kita at (626) 975-2080 to protect your child’s rights.