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Chris March 7, 2015

I’ve written and spoken at length about what to say to police when they want to question you. The best answer is to say that you won’t answer anything until you’ve talked to your attorney. If not in custody, leave and call your attorney. If in custody, demand to call your attorney and follow his or her advice (which will likely be to keep quiet until he or she arrives). This applies to any suspect in any kind of case. It equally applies to parents or guardians who are informed that a child is going to be questioned. Parents should tell their children not to talk to anyone except their attorney and then call an attorney. Parents should then do the same.

Under Connecticut law, statements (oral or written) made by youths under the age of 16 to police or juvenile court officials (includes probation, State’s Attorneys, investigators, etc.) are only admissible if made in the presence of a parent or guardian and ” after the parent or parents or guardian and child have been advised (1) of the child’s right to retain counsel, or if unable to afford counsel, to have counsel appointed on the child’s behalf, (2) of the child’s right to refuse to make any statements, and (3) that any statements the child makes may be introduced into evidence against the child.” Essentially both the child and parent must be Mirandized and waive those rights for questioning to be continued and be admissible in court.

For juveniles 16 or 17, parental presence is not required but efforts must be made to contact the parents and the child must be advised that he or she has a right to have a parent present during any interrogation in addition to the rights of silence and counsel. This difference should not exist–for equal protection reasons and plain logic–but it does now.

This should be a double layer of protection against self-incrimination. It does help to prevent against the police coercing confessions. It also has the effect of enabling parents to encourage their kids to confess. Some parents, after declining to obtain counsel, tell the kids to “Tell the officer everything” or the classic, “Tell them what you told me.” Anything other than “I’m invoking our rights to counsel” is a bad choice. It’s possible that a child will waive his or her rights anyway even if the parent does not want him or her to. In that case, the parent, who should have obtained counsel, should tell the child to discuss that with the attorney.

In the premiere of the ABC drama “American Crime,” a father’s insistence that his son–who was not yet under arrest–tell the police everything, led directly to the son’s arrest. I had a juvenile client who, before there was an arrest (and before I represented him) was taken by his mother (after they called her) to the police station to answer questions. She drove home by herself.

Not included in the rights advisement by the police is that the parent has the right to remain silent. That isn’t advised because the parent is not the one in custody or charged and thus does not need to be free from self-incrimination. Parents should also refrain from telling the police what their kids told them because those statements also become incriminating to the child (and possibly the parent)–that is the classic admission by a party opponent exception to the hearsay rule. A parent who gives a statement that includes incriminating statements by the child can be called as a witness against the child. At the very least, those statements could be used by the police to continue their investigation or by a judge in deciding whether there is probable cause to issue a warrant or maintain charges, or just in future pretrial proceedings, such as detention review.

Be extra careful of questioning before an arrest. Answering will likely lead to one. The bottom line is to always to invoke your rights to silence and counsel. If you are a parent, call an attorney (preferably me) immediately and invoke your child’s rights as soon as you are aware of police interaction.