Updated: January 2021
As a criminal defense lawyer with more than 19 years of experience in juvenile court, 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.
I am also frequently asked whether juveniles can be questioned without a lawyer present. 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.
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 4th amendment restrictions apply and the child’s statements should be excluded from evidence.
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.