Written by Alison Cohen July 24, 2020; revised by Matthew Lanthier November 21, 2023.
As a criminal defense lawyer one of the questions I hear most frequently is, “Can a minor be questioned without a parent present?”
There are two entities likely to question your child about involvement in a crime:
- police officers
- school personnel
Let’s look at each.
The short answer is “yes.” Police officers can question your child without notifying you. Your child does not have a constitutional right to have a parent present when being questioned by police.
Yes, school officials can question your child about criminal behavior without notifying you. Because most campuses have a constant police presence (“School Resource Officers”), children are often questioned by both entities before parents are notified.
The answer depends on the child’s custody status.
If your child is not in custody.
If your child is not in custody, the police can question them freely without advising them of their constitutional rights under Miranda and without having a lawyer present.
If your child is in police custody.
As of January 1, 2021, California Senate Bill 203 broadens the scope of Welfare and Institutions Code section 625.6. Prior to January 1st, 2021, children aged 15 years or younger being held in police custody could not be questioned by police until after they consulted with legal counsel. The amended statute now applies that rule to all children aged 17 or younger.
If your child is in custody and under 18, they cannot be questioned by police until they consult with a lawyer in person, by telephone, or by video conference. This consultation cannot be waived by the minor. There is an exception that allows police to ask questions that they reasonably believe are necessary to protect life or property from an imminent threat, but the officer’s questions must be limited to those reasonably necessary to obtain that information. Failure to comply with this law will be considered by the court when deciding whether to admit the minor’s statement as evidence at trial, and the court must consider a willful violation of this law when evaluating whether the officer is a credible witness at trial.
The short answer is “No.” Children do not have to talk to the police. They can decline to answer questions. If a child asks to have a lawyer present, then the police must stop asking questions.
No. It’s almost never a good idea. You should teach your children to ask for a lawyer. If they ask to talk to a lawyer, the police must stop questioning them.
Remember, if police already have probable cause to believe that your child has committed a crime, then your child is likely to get arrested, whether they make a statement or not. There is no way for your child to talk their way out of an arrest. Any attempt to do so might result in the police gaining information they can use against your child, even if they are innocent. It’s impossible to know the prosecutor’s theory of the case at this stage, and attempts to, say, provide an alibi may only prove that the child was close enough to get to the scene of the crime during an important timeframe.
The best way for a child, or anyone, to avoid police questioning is to clearly state: “I am going to remain silent. I would like to see a lawyer.”Asking for a parent is NOT enough to stop the police from asking further questions. Your child must ask to see a lawyer to avoid being interrogated by the police. NOTE: A request for a lawyer does not prevent the police from arresting a minor if they have probable cause to believe that the minor committed a crime.
Because children rarely feel that they can say no to authority figures, they usually give statements freely to police and school personnel. Most juvenile cases require an analysis of whether the child’s statement was taken legally. The most complicated cases involve statements given to school personnel while law enforcement is present. Because school personnel are not restricted by constitutional concerns, they can question children freely. If their questions are prompted by a law enforcement officer, an argument can be made that 5th Amendment restrictions apply and the child’s statements should be excluded from evidence.
It is imperative that you consult a juvenile criminal defense attorney as soon as possible. It’s also important that you remind your child about their right to remain silent and encourage them to ask for a lawyer before answering any questions from police.
Do not contact the police in an attempt to explain your child’s statements. Nothing you say will induce the police to let them go, and you may end up handing the police information they can use against your child.
Do not have a detailed discussion with your child about what they were questioned about. Your communication with your child is not privileged. You could end up being subpoenaed by the prosecution to testify against your own child, and if you fail to answer questions on the stand, you could be held in contempt of court, thus facing your own criminal charges.
By far, the most common location for a police interrogation of a juvenile subject is at school. School interrogations can lure a child into thinking they’re not in any real trouble yet.
Your home is another common location where police will try to question your child.
Yet police interrogations can happen nearly anywhere. They can take your child down to the police station and question them there. They can interrogate your child at juvenile hall. The officer might call your child and question them over the phone.
Police officers even employ pretext phone calls at times. In sex cases or domestic violence cases, they’ll have one child call another child, get the first child to try to elicit statements, and use audio recording equipment to capture the whole thing.
Be on your guard. Police might interrogate a child anywhere. We’ve seen them do it on street corners and at the mall. Make sure your child understands that they can ask for a lawyer if a police officer wants to question them. Asking for a lawyer will stop the questioning process.
When a child isn’t in custody yet the police can ask them anything without warning them that they have rights.
Once a child is in custody, police cannot question the child until the child has consulted with an attorney who can explain their rights to them.
Under California state law, juveniles may not waive the right to an attorney and must speak to a lawyer before being questioned by the police while they are in custody.
Sadly, police face very few consequences for ignoring a child’s right to an attorney, and they sometimes move ahead with the interrogation without providing one. The child’s answers are still admissible in court.
Nothing! As a juvenile, refusing to answer questions will almost never hurt you or your child.
If police were going to make an arrest before the juvenile started answering questions, they’re almost certainly going to make the arrest after those questions are answered. They already have probable cause to make the arrest. Nothing you say will stop it.
If the police didn’t have probable cause, they’re going on a fishing expedition, and the only thing that can give them a valid arrest is being provided with answers to their questions.
Officers might become upset or get rude with a child who clams up, but even a child has the right to respectfully decline to answer. Teach your children to say: “I respectfully invoke my right to remain silent and will not answer questions without a lawyer,” whenever a police officer asks them a question.
Yes. Even children have the right to remain silent in America. This right is protected by the Fifth Amendment of the Constitution and has no age limit.
There are three important laws that protect your child’s rights.
1. The 5th Amendment of the United States Constitution, also known as your child’s Miranda rights or the right against self-incrimination.
2. SB 203, a state law that says the police may not question children without an attorney present when a child is in custody, and that children may not waive this right.
3. Welfare & Institutions Code 625.7 prohibits police from using threats, deception, and psychologically manipulative questioning techniques with minors in custody.
Unfortunately, one important law also undermines your child’s rights. Proposition 8 is a state constitutional provision that allows the court to hear evidence that wasn’t obtained in ways that violate the Federal Constitution. In other words, it is up to the judge to decide whether they will allow the child’s statement to be used in trial. Nevertheless, your child retains the right to remain silent, and their right to an attorney.
“I want to talk to a lawyer before I answer any questions.”
In general, you cannot interfere with law enforcement as they discharge their duties.
This does not mean you must go out of your way to facilitate their investigation.
For example, if the police don’t have a warrant then you can refuse to allow them inside of your home. They cannot force you to give up your child’s phone number, either. Keeping your child home when you know there’s a problem and calling a lawyer right away are two good ways to protect your child for as long as possible.
Real-world examples of children questioned by police from our practice
14-year-old questioned at his home by police
A 14-year-old was accused of touching girls inappropriately. The officer met with the minor at his home and informed the minor that he was not under arrest. The minor confessed. That statement can be used against the minor at trial because the minor was not in custody when the officer questioned him.
15-year-old questioned by school staff and police at school
A 15-year-old was charged with bringing a weapon onto school grounds. The school staff pulled the minor into the office for questioning. The minor told the school staff that he brought a gun to school and could show them where it was. A police officer responded and accompanied the minor and school staff to where the gun was located. The police officer questioned the minor further as they searched for the gun. Once the minor made a clear statement about where he had put the gun, the officer read him his Miranda rights. In this case, the statements made by the minor to school staff could be used against him, but there is a good argument that the statements made to the officer could not. Although the minor was not officially under arrest when the officer questioned him, he clearly was not free to leave, so the questioning could be considered custodial. Custodial interrogation of a 15-year-old is illegal and the court should exclude any statements made by the minor under those circumstances. This particular set of facts is complicated by the public safety exception to the law against custodial interrogation. Police are allowed to question youth 15 and under if there is a public safety concern. Here, the possibility of a loaded gun on or near school grounds poses a risk to public safety. A judge would likely find that it was legal for the officer to question the minor about the whereabouts of the gun, but not about other aspects of the crime.
13-year-old questioned by police at home while in custody
A 13-year-old was accused of battery, which is the unlawful use of force on another. A police officer went to the minor’s home to question him. When the officer entered the house, the minor got scared and tried to run down the hallway. The officer physically stopped him from leaving the room and made him sit down. The officer read the minor his Miranda rights and then questioned the minor. The officer did not officially arrest the minor at that time. The statement given by the minor in this situation should not be admitted at trial. What started as a non-custodial interview at the minor’s home became custodial when the officer physically prevented the minor from leaving the room. It is illegal to question a 13-year-old who is in custody if they have not talked to a lawyer first.
Both school personnel and police can question your child without you there
In summary, both school personnel and police can question your out-of-custody child outside of your presence. They do not have to stop questioning because your child asks to speak to a parent. Children do not have to answer questions, but only a clear request by the child to speak to a lawyer will stop police questioning. Police cannot question a child who is in custody until that child has consulted with a lawyer.
Cohen Defense Group is here to help
If your child is charged with a crime, a good juvenile lawyer can help avoid long-term consequences and intrusive probation conditions that affect the whole family. Reach out today to speak with an experienced attorney.