Model Legislation

Minor's Nonwaivable Right to Counsel During Custodial Interrogation

Section __: When statements by minor during custodial interrogation may be used.

  1. No oral, written, sign language, or electronically recorded statement of a minor who, at the time of the commission of the offense, was under the age of 18 years that was made during or as a result of custodial interrogation shall be admissible as evidence against the minor in any judicial proceeding in which the minor is alleged to have committed an act that (i) subjects the minor to prosecution in criminal or juvenile court, or (ii) would subject the minor to registration as a sex offender if convicted or adjudicated delinquent, unless the minor is represented, where feasible, by an attorney who is present during the entirety of the custodial interrogation.
  2. The presence of an attorney during custodial interrogation may not be waived by the minor or by any person on the minor’s behalf.

Electronic Recording of all Custodial Interrogations Involving Minors

Section __: Electronic Recording of Custodial Interrogations of Minors

  1. "Custodial interrogation" means any interrogation involving a law enforcement officer's questioning that is reasonably likely to elicit incriminating responses and in which a reasonable juvenile in the subject’s position would consider himself to be in custody, beginning when a person should have been advised of his Miranda rights and ending when the questioning has completely finished.
  2. "Electronic recording" or "electronically recorded" means a visual or audio recording that is an authentic, accurate, unaltered record of a custodial interrogation.
  3. Evidence of a statement made by a minor, who, at the time of the statement, was under the age 18, during a custodial interrogation in a place of detention shall not be admitted against the minor in a subsequent juvenile or criminal prosecution unless an electronic recording of the entirety of the statement was made, preserved, and is available at trial, except upon clear and convincing proof of any one of the following:
    1. The statement was part of a routine processing or "booking" of the person; or
    2. The statement was made during a custodial interrogation that both occurred in, and was conducted by, officers of a jurisdiction outside ____ in compliance with the law in that jurisdiction; or
    3. Substantial exigent circumstances existed which prevented the making of, or rendered it not feasible to make, an Electronic Recording of the Custodial Interrogation, or prevent its preservation and availability at trial.
  4. Video recording equipment should be used, but an audio recording is sufficient to comply with this section if a video recording is not feasible.

Electronic Recording of all Questioning of Minors by Law Enforcement

Section __: Electronic Recording of Minor's Statements to Law Enforcement

  1. "Electronic recording" or "electronically recorded" means a visual or audio recording that is an authentic, accurate, unaltered record of the police interview with the minor
  2. Where feasible, the police shall electronically record all interviews with minors under the age of 18, including, but not limited to, custodial interrogations and witness interviews.
  3. The jury shall consider the failure to electronically record a minor’s statement to law enforcement as a factor in determining what weight, if any, to give to the statement.

Minor's Request to Speak to a Parent Shall Be Considered an Invocation of His Miranda Rights

Section __: A Minor's Request for a Parent or Guardian During Custodial Interrogation

  1. "Custodial interrogation" means any interrogation involving a law enforcement officer's questioning that is reasonably likely to elicit incriminating responses and in which a reasonable juvenile in the subject’s position would consider himself to be in custody, beginning when a person should have been advised of his Miranda rights and ending when the questioning has completely finished.
  2. If a minor under the age of 18 requests to speak to a parent or guardian during a custodial interrogation, all questioning of the minor must cease until the parent or guardian arrives.
  3. Once the parent or guardian arrives, law enforcement must re-advise the minor and his parent or guardian of his constitutional rights pursuant to Miranda v. Arizona.
  4. Any statements taken in violation of this rule shall not be admissible in any subsequent criminal or juvenile prosecution of the minor.

Obligatory Warnings Before a Confession is Taken

  1. In order for a child's statement to be admissible in any court proceeding, he shall be read and advised of in writing the following:
    1. You have the right to not say anything. Starting right now, you do not have to talk to me.
    2. Anything you choose to tell me I can report to the judge in your trial.
    3. You have the right to get help from a lawyer right now, and I will have to wait to ask you questions until the lawyer is with you.
    4. If you don’t have money to pay a lawyer, you will be given a lawyer for free who will help you in your defense.
    5. You have the right to stop me from asking questions at any time. You can tell me not to ask you any more questions.
    6. Do you want to talk to me without the help of your own lawyer?
  2. Unless counsel is present, following the recitation of each enumerated component of the warnings set forth in Section A, the officer shall obtain the child's written or recorded understanding of the warning in the child's own words.

Access to Counsel During Interrogation

Provides that an oral, written, or sign language statement of a minor who, at the time of the commission of the offense was under the age of 17 years, made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissible as evidence against the minor in any criminal proceeding, for an act that if committed by an adult could subject them to a prison sentence exceeding one year, unless the minor was allowed to consult with and have access to counsel throughout the entire custodial interrogation and the entirety of the interrogation was electronically recorded.

  1. In this Section, "custodial interrogation" means any interrogation (i) during which a reasonable person in the subject’s position would consider himself or herself to be in custody, and (ii) during which a question is asked that is reasonably likely to elicit an incriminating response.
    In this Section, "electronic recording" includes motion picture, audiotape, videotape, or digital recording.
    In this Section, "place of detention" means a building or a police station that is a place of operation for a municipal police department or county sheriff department or other law enforcement agency at which persons are or may be held in detention in connection with criminal charges against those persons or allegations that those persons are delinquent minors.
  2. An oral, written, or sign language statement of a minor who, at the time of the commission of the offense was under the age of 17 years, made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissible as evidence against the minor in any criminal proceeding or juvenile court proceeding, for an act that if committed by an adult, could subject the person to a prison sentence exceeding one year unless:
    1. An electronic recording is made of the custodial interrogation; and
    2. the recording is substantially accurate and not intentionally altered.
  3. An oral, written, or sign language statement of a minor who, at the time of the commission of the offense was under the age of 17 years, made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissible as evidence against the minor in any criminal proceeding for an act that if committed by an adult could subject the person to a prison sentence exceeding one year unless the minor was allowed to consult with and have access to counsel throughout the entire custodial interrogation.