Parents Presence During Police Questioning In California
In People v. Burton (1971), 6 Cal. 3d at pages 383-384, the court held that when a "minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents, made at any time prior to or during questioning, must, in the absence of evidence demanding a contrary conclusion, be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege.
The police must cease custodial interrogation immediately upon exercise of the privilege. If the police do not cease, the confession obtained by the subsequent questioning is inadmissible, and, therefore, the admission of such confession is prejudicial per se and compels reversal of the judgment . . . . "
Eight years later, the United States Supreme court considered whether the California Supreme Court, which had relied on its prior decision in Burton, had properly determined that a juvenile's request to have his probation officer present during custodial interrogation amounted to a per se invocation of the juvenile's Fifth Amendment rights under Miranda.
In Fare v. Michael C., supra, 442 U.S. 707, the court noted that, under federal law, the per se aspects of Miranda had not been extended beyond the scope of the holding of Miranda itself, i.e., that due to the unique role a lawyer plays in the adversary system, an accused's request for an attorney is considered a per se invocation of the accused's Fifth Amendment rights. (Id. at p. 719 99 S. Ct. at p. 2568.)
The minor's probation officer had not been in a position to offer the kind of legal assistance necessary to protect the juvenile defendant's legal rights.
Accordingly, the California court erred in determining the minor's "request . . . to speak with his probation officer per se constituted an invocation of his Fifth Amendment right to be free from compelled self-incrimination," and that his statements made during interrogation should have been suppressed. (Id. at p. 724 99 S. Ct. at p. 2571.)
Instead, "the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel." (Id. at pp. 724-725 99 S. Ct. at pp. 2570-2571.)
When determining whether a juvenile's waiver is voluntary, courts should consider the juvenile's "age, experience, education, background, and intelligence, and . . . whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights." (Ibid.)
In 1982, California voters passed Proposition 8, which added section 28, subdivision (d) to article I of the California Constitution.
That section provides in part: "Except as provided by statute hereafter enacted by . . . the Legislature, relevant evidence shall not be excluded in any criminal proceeding . . . ." Pursuant to section 28, subdivision (d), a court may exclude unlawfully obtained evidence only if exclusion is mandated by federal constitutional rules. (In re Lance W. (1985) 37 Cal. 3d 873, 896 210 Cal. Rptr. 631, 694 P.2d 744.)
While In re Lance W. involved evidence unlawfully seized in violation of the Fourth Amendment, its reasoning is equally applicable with regard to evidence seized in violation of an individual's constitutional rights to counsel and against self-incrimination.
In People v. Peevy (1998) 17 Cal. 4th 1184, 1188 73 Cal. Rptr. 2d 865, 953 P.2d 1212, the court recognized that "provisions of the California Constitution establish that statements taken in violation of Miranda are to be excluded from evidence in this state only to the extent required by the federal Constitution." (See also People v. May (1988) 44 Cal. 3d 309, 316, 318-319 243 Cal. Rptr. 369, 748 P.2d 307.)