Constitutional Rights. Individuals are generally protected by a series of constitutional rights when they interact with law enforcement officers such as the right to remain silent and the right to counsel.
The Right to Remain Silent. The Fifth Amendment to the United States Constitution provides that "[n]o person … shall be compelled in any criminal case to be a witness against himself." To counteract the inherent compulsion of custodial interrogation, police must administer Miranda warnings.
Miranda requires the defendant be warned prior to any questioning that they have the right to remain silent, that anything they say can be used against them in a court of law, that they have the right to the presence of an attorney, and that if they cannot afford an attorney one will be appointed for them prior to any questioning if they so desire. Once an individual invokes their right to remain silent, police may not continue the interrogation or make repeated efforts to wear down the individual.
The Right to Counsel. In a custodial interrogation, the right to counsel is when an individual is taken into custody and subjected to questioning, the privilege against self-incrimination is implicated. Procedural safeguards are employed to protect the privilege. The individual must be warned they have a right to the presence of an attorney, and an opportunity to exercise this right must be afforded throughout the interrogation.
In adversarial proceedings, a criminal defendant is entitled to the assistance of counsel at critical stages of litigation. A critical stage is one in which a defendant's rights may be lost, defenses waived, privileges claimed or waived, or in which the outcome of the case is otherwise substantially affected.
Individuals subject to custodial interrogation or criminal prosecution who are unable to afford counsel have a constitutional right to have counsel appointed for them at public expense.
Waiver of Constitutional Rights. An individual can waive their rights by agreeing to speak with law enforcement without consulting with an attorney. A waiver of a constitutional right is valid only if it is voluntary, knowing, and intelligent. A waiver is:
Courts consider the totality of the circumstances when evaluating whether these requirements are met.
Washington Superior Court Criminal Rules. The Washington Superior Court Criminal Rules extend the right to counsel beyond the constitutional minimums. The rules provide that the right to a lawyer extends to all criminal proceedings for offenses punishable by loss of liberty. The right to a lawyer accrues as soon as feasible after the defendant is taken into custody, appears before a committing magistrate, or is formally charged, whichever occurs earliest. The court rules provide that, unless the right is waived, a lawyer must be provided to any person who is financially unable to obtain one without causing substantial hardship
Rights of Individuals Under 18. When evaluating whether a waiver of constitutional right was voluntary, knowing, and intelligent, the court may consider an individual's maturity, intelligence, education, and experience. In Washington State, the rights of individuals age 11 and younger may only have their rights be waived by a parent, guardian, or custodian; and those age 12 through 17 may waive their own rights.
Office of Public Defense. Created in 1996 as an independent agency within the judicial branch, the Office of Public Defense (OPD) was established to implement the constitutional and statutory guarantees to counsel for indigent persons and to ensure effective and efficient delivery of state-funded public defenses services.
Attorney Access for Individuals Under 18. Law enforcement must provide individuals under the age of 18 access to an attorney for consultation before the individual waives any constitutional rights if a law enforcement officer:
The required attorney consultations may not be waived and it can be conducted in person, by telephone, or by video conference.
Statements made by the individual after being contacted by a law enforcement officer under these requirements are not admissible in juvenile or adult criminal court proceedings, unless:
Any assertion of constitutional rights by the juvenile through legal counsel must be treated by a law enforcement officer as though it came from the juvenile.
The Juvenile Justice Act is amended to recognize the requirements of this act and to exclude evidence obtained in violation of the requirements of this act.
Exceptions to the Attorney Access Requirements for Individuals Under 18. The consultation required may not be waived. A law enforcement officer may question an individual under the age of 18 without following the requirements if:
Custodial Interrogation. Custodial interrogation means express questioning or other actions or words by a law enforcement officer which are reasonably likely to elicit an incriminating response from an individual, and occurs when reasonable individuals in the same circumstances would consider themselves in custody.
Office of Public Defense Authority. OPD's director must provide access to attorneys for juveniles contacted by a law enforcement officer for whom a legal consultation is required.
Subject to the rules of discovery, OPD is authorized to collect identifying information for any youth who speaks with a consulting attorney, provided such records are exempt from public disclosure.
PRO: This bill protects the right of individuals and places rules on what police can do when they are asking young people to waive their constitutional rights. It is a limited time to consult with a knowledgeable attorney and it is not an ongoing representation in the case. If the charges are filed, ongoing representation would continue as they do now in current statute. There needs to be an educated adult to hold police accountable to ensure their investigations are just, legal, and necessary. Known cases of wrongful conviction can tell us about the vulnerability of young people in the legal system. Reasonable suspicion is at the point where stop and frisk begins. An arrest requires probable cause and that is a higher standard than reasonable suspicion. Deciding to be silent is not enough to cause an arrest. It is clear we need a moment to pause and have our young people have access to an expert that can speak light and truth to them. We are looking down the path of establishing human rights. This is just the first step toward justice and disrupting the school to prison pipeline.
CON: The fiscal note data assumes one-third of the number of youth in juvenile rehabilitation. The number should be five to ten times that number and this will have impact on delays for the officers' investigations. Rather than obtaining the truth, there is fear this bill would encourage the arrest of an individual and increase the likelihood of placing a young person into the juvenile justice system. This is a significant concern because there could be alternative ways to do this where we can provide benefits and greater access to an attorney without increasing the likelihood of negative impacts.
OTHER: This is a groundbreaking bill but the floor amendments passed in the House creates loopholes that can impact the youth if the police suspects them as trafficking victims and suspends protections based on those suspicions. In Washington State, youth can still be charged with prostitution, which is concerning if they can also be considered victims of trafficking.
The committee recommended a different version of the bill than what was heard. PRO: This bill gives a consultation component, it does not create ongoing representation. This consultation would be quite short and is intended to give youth an understanding of their rights. Youth always have the right to not speak to an officer. This bill provides youth an ability to talk to someone to understand their rights. Youth get confused around their rights. This phone call is meant to help the youth no longer be confused, and understand their options. There is no cost that is too high for our civil liberties. It costs about $88,000 per year to incarcerate a youth, this is much higher than other costs for youth, these savings are not accounted for in the fiscal note.
CON: Section 1(2) makes it clear that this is a requirement to consult with an attorney. An officer cannot interact with a person unless they have contacted an attorney. This fiscal note is too low, five to ten times more consultations than in the fiscal note should be expected. Reasonable suspicion is a sifting process and is extremely broad. The requirements in this bill stops investigations. There are other ways to work this out that would provide greater support. This bill does more than the original intent.