Many prosecutors and peace officers might dread learning about the law surrounding juvenile statements. Those who deal primarily with the adult justice system may not realize the many differences between a juvenile suspect’s custodial statement and an adult suspect’s statement. For example, the law requires that a juvenile under arrest must be placed in a “juvenile processing office” (more on what that means later) and that everything be completed in such an office within six hours. Additionally, there are many hurdles to overcome before a juvenile’s custodial statement is admissible. What follows in this article are several of the traps prosecutors and officers must watch for, as well as how to avoid and overcome them.
Age can be an issue
In some instances, officers might take a custodial statement from a 17-year-old adult suspect whom the Family Code still considers a juvenile because he committed an offense while under age 17. Because the Family Code defines a child as a person under age 18, the law requires officers to follow the Juvenile Justice Code for those adult suspects who committed their crimes when they were juveniles but who are 17 years old when interviewed in custody.1 The Juvenile Justice Code’s stringent requirements, such as taking the suspect to a magistrate for his warnings and for those warnings to be recorded, must be followed for those 17-year-old suspects.
In situations where a suspect is now 18 or older and he is being questioned for an offense that occurred when he was a juvenile, Article 38.22 of the Texas Code of Criminal Procedure applies.
In both custodial and noncustodial situations where a juvenile’s statement is taken, the law requires, as it does with adults, that the statement be voluntary. When deciding a juvenile’s ability to voluntarily provide a statement to law enforcement, courts must review whether any “official, coercive conduct” was “of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.”2 People other than a police officer can commit official coercive conduct—a teacher, employer, loss prevention employee, security guard, Department of Family Protective Services employee, and even a judge could be the source of official coercive conduct.
A few examples of coercive conduct would be using violence or the threat of violence to obtain a statement—so would an excessively long period of questioning, depriving a suspect of sleep or food, or the promise of a specific substantial benefit, such as a store employee’s assurance that she would not file charges if a suspect confessed to shoplifting. A real-life example actually involved a judge. While he was giving a juvenile his magistrate warnings, the judge told the child that the potential punishment was only a year in jail, when in fact the juvenile was facing a possible life sentence for first-degree felony aggravated robbery. Because the juvenile wrongly believed he would be facing only a year in jail, he confessed to the aggravated robbery with the mistaken belief that he would not be exposed to such a significant sentence. The juvenile’s confession based on that misinformation made his confession involuntary.3
Issues unique to juvenile law do not apply to adult suspects. For instance, a juvenile’s sophistication, age, criminal history, and worldly experiences must be considered when a court decides whether he understood and voluntarily waived his rights and confessed of his own volition.4 The courts must look at the totality of the circumstances when making their determinations, and therefore, prosecutors must establish the voluntariness of any juvenile’s statement with a preponderance of the evidence. If at all possible, prosecutors can do so not only with evidence from the officer who took the statement but also from current and former teachers, juvenile probation officers, neighbors, and in some cases from the juvenile’s own relatives. In Harris County, a psychologist typically examines a detained juvenile and conducts IQ testing. Those examination and testing results, along with testimony from any experts who interviewed the child, can support a finding that the child was of sufficient intelligence and sophistication to have provided a voluntary statement.
Juveniles not in custody
In some cases, arresting a juvenile might not be appropriate—for instance, when an investigation of a sexual assault requires several steps (and several days) to interview witnesses and gather evidence before it is complete. In such a situation, it is a good idea to take a noncustodial statement from the child so that the requirements for taking a custodial statement under the Family Code are not necessary. As long as the victim’s safety is not an issue, it is the best practice to advise officers not to take the juvenile suspect into custody immediately after a victim has made outcry. An officer can take a juvenile’s statement in a noncustodial setting, such as an assistant principal’s office in a school or some other public place. The officer should make sure to tell the juvenile that he is not under arrest, and after the child gives his statement, the officer should allow the child to leave the meeting. If justified, the officer can follow up with an arrest at a later time.
Note that a unique situation exists for noncustodial statements in cases involving children in the custody of the Department of Family and Protective Services (often referred to as CPS, as Child Protective Services falls under the DFPS umbrella). For children who have been removed from their homes and are in CPS custody, the requirements for taking a custodial statement apply5 (more on such statements later). This situation sometimes arises in sexual assault cases when a child suspect is removed from his home and placed in a DFPS residential facility after the victim’s outcry and while law enforcement investigates the allegations.
A child in DFPS custody is in a similar situation to that of an adult who is questioned while in police custody on a charge unrelated to the offense police are investigating. An officer taking a statement from a child in DFPS custody must treat that child and take his statement the same way as if the child were in police custody. Many officers do not realize this exception and believe that because they have not arrested the child, they can take a statement without following the requirements for a custodial statement. Failure to follow the law in this unique situation means the statement is inadmissible in court.
Juveniles in custody
When a juvenile is in an officer’s custody, the child must be taken without unnecessary delay to one of six locations enumerated by statute or to a juvenile processing office.6 The locations are:
• the juvenile’s parent’s or guardian’s custody with their promise to bring him to court,
• a juvenile detention facility designated by the juvenile board,
• a secure detention facility,
• the office or official designated by the juvenile board,
• a medical facility, or
• a school if the school is in session and if the principal accepts the juvenile.
Most of the time, this means taking the child to a juvenile processing office for the “issuance of warnings” and the “receipt of a statement.”7 An officer can take him only to a place designated as a juvenile processing office to take a statement from him or to conduct other matters, such as identifying the juvenile or processing paperwork incident to an arrest.
In those situations where an officer arrests a juvenile and takes him directly to one of the six enumerated locations listed in the statute, then an officer is allowed to ask for the juvenile’s release into his custody. The officer may then take his statement in a location other than a juvenile processing office. The legislature has essentially said that that the juvenile processing office is only a six-hour temporary stop for a juvenile after his arrest and before he must be finally placed in one of the six enumerated statutory locations.
In any evidentiary hearing, a prosecutor must put on evidence that the office where the warnings were given and the office where the statement was received were juvenile processing offices. In Harris County, the Juvenile Board has specifically designated all the offices of any Harris County magistrate or any location where a magistrate delivers warnings as juvenile processing offices. Specific rooms in various law enforcement agencies’ offices have also been designated as juvenile processing offices. Many police agencies in Harris County will take a child to a magistrate’s office or courtroom to issue warnings and then take the child to a designated juvenile processing office at their own agency’s office for the receipt of the statement.
Deviating from the juvenile processing office statute is usually not a good idea. For example, taking a juvenile to the location where property was stolen after he agrees to show police where it is hidden is not permissible.8 In the Roquemore case, officers obtained an oral confession and recovered stolen property before they transported the child to a juvenile processing office. While the confession was initially found to be admissible by the First Court of Appeals because the officer did not ask the juvenile any questions (he simply confessed to the offense in the back of the patrol car without any prompting or interrogation by police), the Court of Criminal Appeals found that the 25-minute stop to recover the property was an unnecessary delay. Even though the high court agreed with the Court of Appeals and ruled that the child’s admission was volunteered and without any police interrogation, the Court of Criminal Appeals held that the evidence regarding the recovery of the stolen property and the testimony concerning the stolen property should not have been admitted into evidence. Ultimately, on remand from the Court of Criminal Appeals, the First Court of Appeals held that the admission of this evidence was harmless error.9
Courts have carved out some exceptions to this unnecessary delay language, though. In the Contreras case, the Court of Criminal Appeals found that a 50-minute delay was reasonable when police attended to the victim and secured a homicide scene.10 In the Dang case, the 14th Court of Appeals ruled that a 21⁄2-hour delay in taking a juvenile to a juvenile processing center was necessary when officers secured a homicide scene at night with SWAT officers.11 The Dang court stated that it would look at the facts and circumstances of each case to evaluate each scenario. Obviously, the best advice for officers is to make sure that once a juvenile is arrested, they immediately take the child to a designated juvenile processing office if they intend to take the child’s statement. If there is a delay, a prosecutor should be prepared to put on detailed evidence in any suppression hearing explaining the reasons for the delay.
Notice to a parent or guardian
Once a juvenile is placed in custody, law enforcement must “promptly give notice” to the juvenile’s parent or guardian that he is in custody and to provide “a statement of the reason for taking the child into custody.”12 At any later proceeding, it is essential that prosecutors put on witnesses to testify about officers’ attempts to notify a juvenile’s parent or guardian.
Officers are required to inform the parent or guardian for what offense the child was arrested, but they are not required to tell the parent or guardian that they intend to interrogate the child.13 In the Hampton case, the Court of Criminal Appeals further clarified the meaning of “a statement of the reason for taking the child into custody.”14 Officers had informed Hampton’s parents that their child was arrested for absconding from juvenile probation and that they had a warrant for his arrest. They did not inform the parents that the child was also going to be questioned for a murder, even though that is what the detective intended. The Court of Criminal Appeals ruled that there was no statutory requirement to re-notify a juvenile’s parents before questioning a juvenile once officers have initially complied with §52.02. The Court held that the reason for taking the juvenile into custody, not any other subjective reason, is the officer’s legal justification.
In addition, the law requires a prompt notification to a parent or guardian under §52.02. Failure to notify a child’s parent or guardian at all clearly violates the requirement; waiting several hours before officers have even attempted to notify them can also violate the statute. Neither is acceptable. While it is not always possible to reach a juvenile’s parent or guardian, officers must make prompt attempts after a juvenile’s arrest.
In cases in which parental notification has been delayed, the courts have established a four-factor test to analyze whether any delay was justified:
1) the length of time the child was in custody;
2) whether notification occurred after the police obtained a statement;
3) the ease with which notification was ultimately made; and
4) what police officials did during the delay.15
In one capital murder case, police did not reach the juvenile’s mother for four hours after his arrest.16 While the police were busy working the crime scene and taking the juvenile’s statement, there was very little evidence that they had tried to contact his parent and only contacted his mother after the child had confessed. The court found it significant that officers were able to contact his mother after only one attempt to reach her and that during that four-hour period before notifying her, the juvenile had struggled over whether he wanted to waive his rights and give a statement. The Court of Appeals reversed the trial court’s judgment and remanded the case for a new trial based on officers’ violation of the parental notification statute and on the fact that the juvenile did not voluntarily waive his rights before he gave his statement.
Prosecutors who have hearings in which notification is an issue must clearly provide evidence to establish officers’ attempts and efforts to reach the juvenile’s parents and the reason for any delays. In situations where a juvenile’s parents were promptly notified, it is always important to put on evidence proving that this notice occurred.
If the parental notification statute is violated, there is one way a prosecutor may still be able to prevail. The Court of Criminal Appeals has ruled that if any violation of this statute occurred, there must be a causal connection between the failure to promptly notify and the taking of the statement.17 If there were some evidence that an officer delayed the parental notification of the juvenile’s arrest in order to obtain a statement from the juvenile, then the court may rule that there is a causal connection between the delay and the statement; therefore, the statement should be suppressed. For example, if the juvenile’s mother testifies that had the police called her, she would have asked to speak to her child or would have gone to the station to advise him not to give a statement without a lawyer, then the court may rule there is a causal connection. If the court finds there may be a causal connection, then the burden shifts to the State to show an attenuation of the taint. In addition to that testimony, evidence from the juvenile that he would not have given a statement to the police if he had talked to his parent would also help prove the causal connection, resulting in a likely suppression of the statement.
In following this ruling, the First Court of Appeals found no evidence to support a causal connection. In Pham, there was no evidence that Pham wanted to speak to his parents or to a lawyer.18 The court also noted that once his parents were notified, they waited a day to visit him, and the defense presented no evidence about what the juvenile’s parents would have done if they had been notified earlier. Therefore, the court determined that Pham’s causal connection argument was “only speculation.”
If the court finds a causal connection, the State may still prevail if there is evidence that subsequent actions make the violation less significant (otherwise known as attenuation of the taint).19 An attenuation of the taint argument is the equivalent of a Hail Mary pass in football: It is usually a desperate attempt to correct an officer’s major statutory violation. There are no caselaw examples of the State successfully attenuating the taint for this area of juvenile law. However, a hypothetical example might be where a juvenile indicated that he did not want his parents notified and that he wanted to give a statement without their presence—then any delay in parental notification possibly could be attenuated. In this scenario, officers should restate the Miranda warnings already given by the magistrate and clearly establish on the recording or on the written statement that the juvenile wanted to give his statement without a parent being notified or present. In addition, if a child was taken to a juvenile processing office, and (unsuccessful) attempts to contact a parent before a statement was taken were made, then it is possible that these facts could establish an attenuation of the taint. Because officers are limited to holding the juvenile for a maximum of six hours in a juvenile processing office, and because their attempts to notify a parent will take time out of that six-hour window, there may be a successful attenuation of the taint argument to be made.
Once the juvenile has been arrested and is in the juvenile processing office, there is a six-hour period for officers to complete certain tasks, such as issuing a magistrate’s warnings, obtaining a statement, photographing and fingerprinting the child, and completing any paperwork.20 The main reason for this six-hour holding period is to ensure that a juvenile’s statement is not coerced by delaying his release, so it’s important that a juvenile’s statement be taken before these six hours are over. Courts are more likely to excuse any delays past this six-hour limit as long as the reason for the delay was not due to a lengthy interrogation of the juvenile to obtain a statement.
As a practical matter, if an officer can’t obtain a statement in six hours, it is unlikely that he will be able to obtain a voluntary statement in a longer period of time. In addition, the statute requires that a child should not be left unattended in a juvenile processing office.21 Therefore, officers should never leave a juvenile alone, and prosecutors should be ready with testimony to prove that this statute was honored. For example, the officer could testify that an officer either observed the child in person or via closed-circuit camera.
The law does not require a parent or guardian to be present when officers interrogate a child in custody at a juvenile processing office, but if a parent asks to be present, it is usually wise to honor that request at some point while the child is in the office. Family Code §61.103 states that parents and guardians have the right to meet privately and speak with the child for a reasonable period of time. However, the law also states that officers may limit parental access based on time, place, and condition restrictions. In addition, a child’s statement cannot be suppressed for a violation of a parent’s right of access to her child under the Family Code.22 If the child agrees to let his parent or guardian be present or requests that his parent be with him in a juvenile processing office, then law enforcement must honor that request.23 In cases where parents or guardian are present at a juvenile’s request, reviewing courts are more likely to rule the juvenile’s statement to be voluntary.
A case out of Galveston illustrates the importance of having only officers familiar with juvenile statement requirements handle investigations involving juveniles.24 In this case, a juvenile was investigated for an aggravated sexual assault. After the officer went to the juvenile’s home and told him and his grandmother that he was the focus of an investigation, the child then went with his grandmother to the police station. While he was there, a magistrate gave him warnings (though the magistrate failed to inform the child that his statement could be used as evidence against him), and the investigating officer interviewed him in a room normally used to interrogate adults. (The officer admitted later that he did not routinely work on juvenile cases.) The interview room was not designated as a juvenile processing office, and the investigating officer admitted in testimony that he did not know what constituted such an office. The officer also locked the door to the room and was carrying his weapon during the interview. Finally, the juvenile’s grandmother asked the investigating officer if she could accompany her grandson into the interview room, and the officer said no. Once the juvenile confessed to the offense, he was taken into custody.
The Court of Appeals ruled his statement was unlawfully obtained while the juvenile was in custody, and it reversed the trial court’s judgment and remanded the case for a new trial. Because the investigating officer failed to take him to a juvenile processing office and the magistrate failed to provide the proper warning, the case was ripe for reversal on those two grounds alone. It might have also been reversed for the officer’s failure to allow the juvenile’s grandmother in the interview room (though it wasn’t appealed on that issue). While an officer does not have to tell a child that he has the right to have a parent in the juvenile processing office during the taking of a custodial statement, an officer who knows that a parent wants access should ask the child (and record both the question and the answer) whether he wants his parent to be present during the interview. If all other factors point to a juvenile’s maturity and capacity to answer the question truthfully and the juvenile says no, an appeals court is less likely to be concerned about an officer denying a parent’s request to be present while the juvenile’s statement is taken.
Recording a statement
An officer who takes a statement from a juvenile must decide if he wants to take a recorded or a written statement. The best option is for officers to record a juvenile’s statement with an audio or video recorder because it provides the best evidence for a judge or jury in court.
Before the statement is taken, a magistrate must be alone in her chambers with the juvenile when giving magistrate warnings unless there are any safety issues, in which case the law allows for an officer or bailiff to be present. However, that bailiff or law enforcement officer may not be armed in the child’s presence.25 If a magistrate requests that an officer be present, a prosecutor should be prepared to present evidence in any hearing as to the reasons why and to establish that the officer was not armed. In most cases, though, an officer will not be present during the warnings, but he will need to turn a recording device on before departing chambers and leave the device in the room while the magistrate reviews the statutory warnings with the juvenile. Just like with an adult statement, a child must knowingly, intelligently, and voluntarily waive each right stated in the warning.26
We should note one tricky thing about recording a magistrate’s warnings and a juvenile’s statement. Family Code §51.095 requires that the warnings be “part of the recording” of the juvenile’s statement—the statute was written in the days of audio cassettes and VCR tapes, long before digital recordings were common. It’s not yet been resolved whether the warnings and the statement must be in the same digital file,27 but the Court of Criminal Appeals has strictly applied §51.095 in prior cases by finding that a failure to comply with the statute bars admission of the statement.28
Even though the court has looked at causal connections with regards to other Family Code statutory violations (as noted above with the parental notification statute), it has not applied the causal connection holdings directly to a violation of the requirements relating the juvenile statements in §51.095. Therefore, in situations where one juvenile processing office is used for the magistrate warnings and another for taking the statement, it is best for officers to keep the digital recording device on from the time the magistrate gives warnings until officers have finished taking the juvenile’s statement. If that is not possible, then officers should at least press pause (rather than stop) on the recorder to have a single digital file and prove that the warnings were given prior to the juvenile making a statement. In cases where the magistrate gives the warnings in the same juvenile processing office in which the statement is taken, officers should just leave any digital recording device on the entire time. This practice would presumably lay to rest any legal issues regarding the requirement that the warnings be part of the recording of the statement.
For those officers who instead choose to take a written statement from a juvenile, the law imposes the same requirements as a recorded statement. The statement must be voluntary and not the product of any official coercive conduct. In addition, the magistrate must issue the warnings to the juvenile before officers obtain the written statement, and those warnings must be in writing. Taking the statement first and then bringing the juvenile to the magistrate is not permissible. Once the magistrate has issued the warnings and is satisfied that the juvenile understands them, the officers are then free to take the child to a juvenile processing office or one of the other locations enumerated in the Family Code to take the juvenile’s written statement. If the statement is taken in a juvenile processing office, the same six-hour rule applies as with an oral recorded statement. An officer does not have the juvenile sign the statement in his presence; he must take the juvenile back to the magistrate for the magistrate to obtain the juvenile’s signature on the statement. The magistrate must be “fully convinced that the child understands the nature and contents of the statement and that the child is signing the same voluntarily.”29 Finally, the magistrate must sign a written statement verifying that all of these statutory requisites have been met.30
For a recorded statement, the law requires only that a juvenile be brought back if the magistrate requests it. If the magistrate does make that request, she may view the recording with the child or have the child view it to determine if the statement was given voluntarily. If the magistrate determines that it was made voluntarily, then she must make a determination of voluntariness in writing.31 Any prosecutor who is introducing a juvenile’s statement must put that magistrate on the witness stand in front of a judge in a suppression hearing and in front of a jury in other proceedings to prove that the child voluntarily waived his rights and that his statement was voluntary. The magistrate’s written finding of voluntariness should also be introduced into evidence.
There are other ways in which a juvenile’s custodial statement may be admissible under the Family Code, and they should be familiar because they mirror the law in the adult court world. For example, a juvenile’s statement is admissible when he provides an oral statement that is “found to be true and that tends to establish the child’s guilt, such as the finding of secreted or stolen property, or the instrument with which the child states the offense was committed.”32 Another way an oral statement may be admissible is if the statement was “res gestae of the delinquent conduct or the conduct indicating a need for supervision or of the arrest.”33 In addition, even if a statement was obtained improperly under the Family Code, as long as that statement was made voluntarily, a juvenile’s statement may be used for impeachment purposes in a courtroom.34 Furthermore, if a juvenile is arrested in another state and those officers follow their state’s law in taking the juvenile’s statement, that statement will be admissible in a Texas court.35 The same is true with a federal law enforcement officer who takes a juvenile’s statement in compliance with the laws of the United States.36
While the law on juvenile statements is full of potential pitfalls for the inexperienced peace officer and prosecutor, this article aims to help you avoid some of them. Proper training of officers and an emphasis on picking up the phone and consulting with a juvenile prosecutor before taking a juvenile’s statement can go a long way toward avoiding these problems. For prosecutors, it is important to understand that a hearing on a motion to suppress a juvenile confession is very different from such a hearing in an adult case: You will need to put on some very different evidence and testimony to prevail on appeal. Consider this article as a starting point on what to look for when reviewing a statement’s admissibility in court and how to guide officers taking juveniles’ statements. i
1 Tex. Fam. Code §51.02(2). All subsequent code references are to the Family Code unless otherwise noted.
2 In re Z.L.B., 115 S.W. 3d 188, 190 (Tex. App.—Dallas 2003).
3 Diaz v. State, 61 S.W.3d 525 (Tex. App.—San Antonio 2001, no pet.).
4 Martinez v. State, 131 S.W.3d 22, 35 (Tex. App.—San Antonio 2003, no pet.).
7 §52.02 (b)(4)–(5).
8 Roquemore v. State, 60 S.W. 3d 862 (Tex. Crim. App. 2001).
9 Roquemore v. State, 95 S.W. 3d 315 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d).
10 Contreras v. State, 67 S.W.3d 181 (Tex. Crim. App. 2001).
11 Dang v. State, 99 S.W.3d 172 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
13 In re S.R.L., 546 S.W. 2d 372 (Tex. Civ. App.—Waco 1976, no writ).
14 Hampton v. State, 86 S.W. 3d 603 (Tex. Crim. App. 2002).
15 Vann v. State, 93 S.W.3d 182 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).
16 Hill v. State, 78 S.W. 3d 374 (Tex. App.—Tyler 2001, pet. ref’d).
17 Gonzales v. State, 67 S.W.3d 910 (Tex. Crim. App. 2002).
18 Pham v. State, 125 S.W.3d 622 (Tex. App.—Houston [1st Dist.] 2003), aff’d by 175 S.W.3d 767 (Tex. Crim. App. 2005) cert. denied, 546 U.S. 961, 126 S.Ct. 490 (2005).
19 Pham and Gonzales v. State, 175 S.W.3d 767 (Tex. Crim. App. 2005), cert. denied, 126 S.Ct. 490 (2005).
24 In re D.J.C., 312 S.W. 3d 704 (Tex. App.—Houston [1st Dist.] 2009, no pet.).
28 Comer v. State, 776 S.W.2d 191 (Tex.Crim. App. 1989), Baptist Vie Le, 993 S.W.2d 650 (Tex. Crim. App.1999).