May 24, 2005, 14:40Jim Tirey
statements made to probation officer
We had a wretched detention hearing yesterday at which the juvenile probation officer (this is a detention on a motion to modify) tried to testify that the juvenile probationer had admitted to smoking marihuana to the officer. This admission was in response to questioning by the officer after the juvenile was taken from the JJAEP facility to the probation office because of the other probation violations.
The defense attorney objected that the statement did not comport with Section 51.095 of the Family Code and that the juvenile's various constitutional rights were violated because the statement was obtained without the probation officer's giving the juvenile his Miranda rights.
I think, but have not found any law even close to on point on this, that this sort of statement is probably not covered by Section 51.095 and that there are fewer constitutional protections necessary, because this kid is already under a court order to be on probation. If the defense attorney is correct, I do not think that any probation officer, juvenile or adult, could ever interview a probationer without fully Mirandizing him and probably not without taking him before the magistrate to be warned.
Does anyone have any idea about this? Any help would be appreciated. This juvenile yesterday ended up being released to his mother.
May 24, 2005, 14:50Kris Moore
Just looking at your situation as set out, there are 3 things that come to my mind as being relevant:
May 24, 2005, 15:10Kris Moore
(sorry folks, the computer popped me out)
the three things I thought of are:
(1) He's IN CUSTODY and 51.095 applies to "in custody" statements. However examination of the wording in the statute in 51.095(d) says "subsections (a)(1)[WRITTEN STATEMENTS]and (a)(5)[ELECTRONICALLY RECORDED STATEMENTS]apply to the statement of a child made:...(1)while the child is in a detention facility...". In this particular case you have neither a written nor a electronically recorded "confession" to a law enforcement officer, but rather an "admission" to a probation officer. Which makes me think of
(2)Section 54.01(c)"At the detention hearing the court may consider written reports from probation officers...". Did the probation officer make a written report for the court? Was the admission in there? If so, I would argue that it should come in.... and besides...even if the kiddo himself had testified...
(3)Section 54.01(g) says "No statement made by the child at the detention hearing shall be admissible against the child aat any other hearing."
Leaving all that aside...the judge could order drug testing as a condition of probation. If random drug testing isn't a standard condition of probation, it should be.
Unless the kid is caught with the drug/marijuana and we can prove what it is, we really couldn't file a new delinquency charge, but testing positive for a drug/marijuana could possibly be grounds to revoke probation - if it has been made a proper condition of probation.
In addition, there should be a policy of testing kids for being under the influence of drugs when they first arrive at detention - just for their safety and the safety of the other kids in detention. Even if the results are never used against them, those who have care, custody and control of the kid need to know in case there is an emergency. And if the information is coming from a "probation officer/professional court employee" it can and should be information provided to the judge by that person and the judge can consider it in making the detention decision. I would argue that it is relevant to the detention criteria pertaining to proper supervision and as to whether or not he may be dangerous to himself or threaten the safety of the public if he is "under the influence."