Can the Cops Question My Child as a Suspect?

Police are free to approach children and question them about whether they were involved in a crime. But just as an adult can't be forced to answer questions during a police interrogation, a child isn't required to talk to the police. The child can refuse to answer questions and can request that a lawyer be present. This rule is based on the Fifth Amendment to the U.S. Constitution, which provides people with the right against self-incrimination.

Can the Police Question a Minor Without Parental Consent?

In a nutshell, yes. The police, including officers on the street and school police officers, generally aren't required to contact parents or get their permission before questioning a child. The U.S. Constitution provides people with the right to remain silent and to have an attorney when faced with police questioning, but there's no constitutional right to a parent during questioning. That said, some states have passed their own laws that say the police have to contact parents before interrogating a child who's been arrested. (See, for example, N.Y. Crim. Proc. Law § 140.20(6).) And when parents aren't present, it sometimes affects whether the child's statements can be admitted in court proceedings (more on that later).

(Note that technically, most proceedings against children are not considered "criminal," because most cases are handled in juvenile courts, which don't make findings of guilt. Instead, if the court concludes that a child has violated a criminal statute, the court will take corrective measures, such as requiring counseling or making the child a ward of the court. For purposes of convenience, this article will refer to "court proceedings," which include juvenile and adult courts. For more information on juvenile proceedings, see The Juvenile Justice System.)

Informal Questioning and Voluntary Statements to Police

If a child agrees to talk with the police and hasn't been arrested and is free to leave, anything they say can be used against them in court proceedings. If the child is interviewed on the street for instance, and voluntarily admits to participating in a burglary or selling drugs, the police can testify at a hearing or trial about the child's statements.

But a child's statements to the police can be used against them only when the statements are voluntary. For example, if the child was forced to answer questions about their involvement in a crime, those statements wouldn't be admissible in court.

When courts are deciding whether a minor's statement was voluntary, they consider all of the circumstances of the interrogation. Here are some of the main factors courts often consider:

• the juvenile's age, education level, and intelligence
• the juvenile's emotional characteristics and state of mind at the time of questioning
• whether the juvenile had any experience with the criminal justice system
• the length of questioning
• any physical coercion, punishment, deceit, or offers of leniency,
• whether a parent or guardian was present,
• and whether (and how often) the child asked for a parent.

No one factor will necessarily decide the matter. The court looks to the "totality of the circumstances" and balances all of the factors to decide if the statements were voluntary.

Custodial Interrogation of Juvenile Suspects and Miranda Rights

If a child is arrested, detained, or taken into custody—or if the police do something that would make a "reasonable" (typical) child feel they were in custody or not free to leave—any questioning about a crime in that situation is considered "custodial interrogation." Statements made during custodial interrogation are admissible only if the child was first advised of their "Miranda rights," or given their "Miranda warnings." The Miranda warning is the statement that a person has the right to remain silent and the right to consult with an attorney, and that anything they say to the police can be used against them in court.

Just as with an adult, if the police arrest and question a child without providing the Miranda warning, nothing the child says will be admissible in court unless an exception applies. The police can use the information to help investigate the case—for instance, talk to another person the child reports was involved—but the confession can't be used to prosecute the child.

If the police arrest a minor and do advise them of their Miranda rights, the minor can assert those rights by saying they don't want to answer any questions and they want a lawyer. The police are supposed to stop questioning when someone asserts their rights. Most lawyers would advise any client—juvenile or adult—that if they've been arrested, they should decline to answer questions and should request an attorney.

When Is a Juvenile "In Custody?"

The question of whether someone is in custody can be complex. The easy cases are situations where officers formally arrest the person by telling them they're under arrest, handcuffing them, locking them in the back of a police car, or placing them in a holding cell at a police station. In those situations, it's pretty easy to conclude that the person is in custody.

Often, however, the police question people in less clear-cut circumstances (and they sometimes do this so they can get around having to give Miranda warnings). In those situations, the question is whether a reasonable person in the same circumstances would believe they were free to leave. Just as with the voluntariness issue discussed above, courts consider the "totality of the circumstances" to decide if someone was in custody. One of the important factors in cases involving minors is the child's age, because children often believe they must submit to police questioning in situations where an adult would know they could walk away. (J.B.D. v. North Carolina, 564 U.S. 261 (2011).)

What If the Police Don't Follow the Law?

Even if there's no constitutional right to a parent before or during questioning, some states have laws that make the police notify parents when their child has been arrested. Other states, like California, require cops to provide an attorney for an arrested minor before any questioning.

If the police arrest a child and illegally or unreasonably refuse the child's request to call parents or another adult (including an attorney), there could be consequences in addition to possibly excluding the child's statements. The parents could file a complaint with the police department or local government against the officers involved. If the situation was particularly serious and the child was physically abused or deprived of food, water, or rest during interrogation, the parents could file a lawsuit for a civil rights violation.

Talk to a Lawyer

If your child was questioned by the police about suspected wrongdoing, talk with a local criminal defense attorney who has experience in juvenile delinquency law. An attorney should be able to advise you of important steps to take to protect your child's rights. If a delinquency petition has been filed against your child, an experienced attorney can guide you through the court process and fight for your child in court. If you're considering a lawsuit against the police for mistreating your child, contact a civil rights attorney for advice.