This page will be supplemented from time to time with Answers to questions people ask. The answers wil hopefuly be in language that normal people like and not in the usual legalese. Since I am a lawyer, the answers may need a lot of "fixing." Feel free to give me your suggestions. GDW
Here is the first Answer to a question, posted 9-4-12. GDW
Can police question minors without parents present?
Short answer is yes. For many of us, that answer raises disturbing images and hard questions.
Should parents teach children to always tell the truth to the policeman?
Can a parent help a child avoid self incrimination?
Can minors get the benefit of the Miranda Rights?
Can a parent be forced to testify against the child?
Can a child "rat out" a parent?
Can a child be forced to testify against the parent?
Should parents teach children to think of a policeman as a friend?
We all have seen the Norman Rockwell picture of a policeman eating an ice cream soda on the café stool next to the lost child waiting for the parent to arrive. That paints a comforting image of the neighborhood policeman helping parents with the travails of everyday life with young children. But in today's urban world, that image is false and misleading.
In today's world, a cop is obliged to bring to justice those who violate the law. In order to protect children, we the public have made it a crime for a child to be "neglected." If a parent changes the diaper of a new born baby and the older toddler walks out the door, the parent's frantic calls for help in searching for the toddler will result in the parent being arrested and perhaps taken to jail. The toddler and the new born will be given to the care of some stranger and the parent may be deprived of custody of the child.
So it is perhaps more accurate to think of the police as the enemy of the family and not the friend of the family.
Should parents teach children to always tell the truth to the policeman?
A cop can ask anyone any question the policeman wants to ask. No one has to answer the cop's questions. Of course, it is sometimes in our best interests to report facts to a policeman. (Lawyers find it difficult to find times when it is good advice to talk to a cop.) Children are often too young or too inexperienced or too uneducated to know when it is good to talk to a cop and to know what should be reported to a cop. So children and those they love are vulnerable when children talk to cops.
Can a child "rat out" a parent?
Grade school teachers often have to listen to students' stories about home with an open mind and a closed eye. But cops do not have to close the eye. So if a child makes a report about a parent, that report may be grounds for an arrest warrant against the parent. The government attorney will review the cop's report and if there appears a reasonable chance of proving the case, the prosecutor will file charges in court. Then the parent will be responsible for paying the cost of proving that the cop's conclusions are wrong. Those costs will likely include a defense lawyer, hiring experts to show that the testimony of young children is notoriously unreliable, etc. The parent will risk additional criminal charges if the parent tells the child that the child should not say such things about the parent. (Tampering with a witness.) The child can be subpoenaed to court and be forced to testify under oath about the actions of the parent.
Can minors be criminally charged?
Yes. The criminal laws do not place an age limit on who is liable for violations. In some circumstances we think that children under the age of ??? should not be held responsible for the mistakes they make. That is true in the case of contracts. For instance a child under the age of 19 who makes a bad deal on a $5,000 car purchase can revoke that deal and get his or her money back, even if the car is by then wrecked. But if the child steals $5,000? The criminal rule is more fuzzy. If the child is 18, it is likely the child will be prosecuted like an adult. If the child is 5 years old, then likely the won't be charged. (But the parents may be obliged to return the $5,000. What if the child is 10? Or 15? We would hope that if the child is charged that the matter be handled in Juvenile court. But what if the 10 year old stabs a sleeping drunk in the alley and kills him? What if the victim is a 3 year old baby? There is no clear answer to those questions.
Can a parent help a child avoid self incrimination?
Yes. But most criminal investigators feel frustrated when a witness stops answering questions. So if the cop can get children to freely talk, the cop is happy. So how does a parent protect a child from self incrimination? By conversations at home. Before any such encounter occurs. Merely as part of the cultural upbringing we have to give our children. Just like we teach children to not talk to strangers.
Can minors get the benefit of the Miranda Rights?
Yes. Children have constitutional rights too. (Although their rights seem to get better with age. For example, consider abortion, freedom from spanking, right to vote, right to buy alcohol, etc.)
The rule in the Miranda case protects against the use of forced confessions against a criminal defendant at trial. The rule applies when the defendant is in the custody of the police and then is forced to answer questions that tend to incriminate him or her. If the police do not warn the defendant that he or she does not have to answer without the benefit of legal counsel, the answers can be barred at trial. But the rule supposes that the defendant is in police custody. The definition of Custody may vary on the situation. Certainly, being held in the locked room in the basement of the police station is "in custody." But what about sitting in the back seat of the police cruiser with the door closed? Or the door open? Or in your own car, with a cop car parked in front? Or behind? So far the court rules have not barred statements made while being stopped by a cop in a traffic stop.
So a parent must inform a child of his or her rights to not make statements to a police officer and must inform the child of his or her right to have legal counsel when being questioned by a police officer.
Should a parent demand to know what happened last night? Should a parent ask the parental questions when a cop brings the teenager home? Can a parent be forced to testify against the child?
We parents think that we must make the rules for our children and we must make sure that the children comply with those rules and we think that if a child fails to follow our rules we must exact a punishment. We think we can force a child to confess those violations and we can then inflict the penalty.
But what happens of the child reports that the child did something that turns out to be a criminal violation? What happens if the child is arrested and charged with that crime?
The rule is that a criminal defendant's statements made to others can be used against him or her at the trial. Miranda Rights are not applicable against non-cops. The law does not give a privilege against testimony between a parent and child. (There is some privilege as between spouses. In Nebraska state courts the defendant can bar the spouse for testifying. In Federal court a spouse cannot be forced to testify against the criminal defendant.) A parent can be subpoenaed to appear in court and to testify under oath about the statements made by the child.
If the child, at the insistence of the parent, makes statements to a cop, the cop's report of those statements can be used at trial against the child. Even though the statements may have been "coerced" it was not the police who coerced the statements. So they are admissible even if no Miranda Warning was given.
So does a parent want to know what the child has done last night? Maybe not.
So, as a parent, what should you teach your child about cops?
