Can the Police Interview my Child?
Every parent wants to feel that they are in control and that they can help protect their child from danger. If a child is facing potential criminal charges parents expect that they will be able to prevent their child from being interviewed alone by the police. It is natural that we feel as though we are the gatekeepers to determine who can speak with our children. It often comes as a big surprise to parents that the police may be able to interview your child without you even being aware. The law in Texas regarding the questioning of juveniles closely follows the rules in the adult courts. Courts look to see “how a reasonable man in the suspect's position would have understood his situation.”1 If a court determines through a totality of the circumstances that the person being questioned was in custody then they must be read their Miranda rights. Courts often consider several factors, including if the person was handcuffed, placed in the back of a squad car, informed that they were being detained, or had it demonstrated to them that they were not free to leave2. If the person is being detained, the police officer must read that person their Miranda rights, including telling them that they have the right to remain silent and have the right to an attorney.
In the juvenile courts, there are similar rules with a handful of important differences. In juvenile courts if a child is arrested they must be first taken to a magistrate (a Judge) and read a warning that includes their Miranda warnings. If the magistrate believes that a child understands this warning and the child chooses to talk with the police, the magistrate can give the police permission to continue with a planned interrogation. By this point hopefully the juvenile has been warned by an attorney that they should not make any statements.
The more problematic circumstance comes when the child is not in custody. If a child is questioned when they are not deemed to be in custody, then no warnings are required to be given to the child. During these interviews the child is free to stop the interview at any time, request an attorney, or request his parents. The problem is, unless the child has previously been made aware of these rights they are unlikely to realize that they are not required to talk. The question of if a child is in custody is complicated, and the court must consider all the circumstance surrounding the arrest. Likewise, a child may be interviewed by a member of the school’s staff, such as a teacher, principal, or counselor. These interviews are of a particularly high danger, as a child is even less likely to understand the legal ramifications of talking to school staff about a potential criminal offense. At Stuckle & Associates we believe that the best practice is to prepare the child ahead of time by informing them that they have the absolute right not to talk to anybody.
What does this all mean? It means that if the police wish to speak with your child, as long as they have not placed them under arrest they are free to conduct an interview. Additionally, if school staff chooses to speak to a juvenile not in custody, they are not required to inform you of their intentions to speak with your child. It is important that juvenile clients understand that they are not required to talk to anybody about what they are being accused of. In fact, in all of these situations it is imperative that your child remain silent. At Stuckle & Associates one of the first things we do is explain to your child the extreme danger that comes with talking about the accusations. We will work with your child and explain to them what to tell anybody who attempts to interview them. Furthermore, we will reach out directly to the police and inform them that your child is not to be interviewed.
In cases where a juvenile is being accused of sexual assault it is always best to consult with an attorney who specializes in those cases as quickly as possible. At Stuckle & Associates our primary concern is protecting the rights of your child from the very beginning. If you have more questions or if your child has been accused of committing a crime, please contact us and schedule a consultation. We will be able to sit down and formula a plan specific to your child’s case.
1. Berkemer v. McCarty, 468 U.S. 420, 422, 104 S. Ct. 3138, 3141, 82 L. Ed. 2d 317 (1984)