Juvenile taken into custody and transported to juvenile processing office. Parents notified and show up at the same time magistrate does to the Juvenile processing office. Officer tells parent that they will have to wait in lobby, and parent tells officer I am invoking my child's right to attorney. Child taken before magistrate and warned and waives his rights and then gives statement. Taken back in front of magistrate and warned again and signs statement. Parents then given access to talk with child.
My reading of sec. 61.106 of family code says this denial of access may not be used as a ground by the juvenile to suppress his statement.
Is this right or is parents denial of access prior to juvenile's statement being given grounds for juvenile's statement being suppressed? Thanks for any help that can be given.
The privilege against self-incrimination is personal. Only the individual faced with interrogation may waive or invoke that right. The right can't be invoked by a suspect's parents, priest, doctor, spouse, sibling, counselor or teacher.
Case law says that the right to an attorney must be invoked by the child. The parent cannot invoke the right on the child's behalf. In addition, you are correct that the initial denial of access cannot be used as grounds to supress the statement and also it cannot be used as a grounds for appeal. (I would argue that the parent wasn't denied access - they did get to see the child - just not when they wanted to - but the parent isn't in control in this situation.)
Thanks for the information. As always this forum is such a great resource.
I will soon be doing an appeal on an issue similar. The question at trial and I assume on appeal will be whether Rothergy and article 15.17 applies to the magistrate's warnings. Specifically -- telling the juvenile about procedures for requesting an attorney if indigent. So if anyone has any thoughts on this issue would love to have input.
Wasn't most of the sting of Rothgery removed by Montejo v. Louisiana, ---U.S. ----, ----, 129 S.Ct. 2079, 2091, 173 L.Ed.2d 955 (2009). See Hughen v. State, --- S.W.3d ----, 2009 WL 3189187 at *4 (Tex. Crim. App. October 7, 2009) ("After Montejo, the Sixth Amendment does not bar police-initiated interrogation of an accused who has previously asserted his right to counsel.").
You might have a much bigger 5th amendment issue. In re H.V., 252 S.W.3d 319 (Tex. 2008); Hughen v. State, 2009 WL 3189187 at *4. Moreover, 51.095(a)(C) requires the magistrate to find a voluntary waiver.
I've always thought of the magistrate's function under 51.095 as being a neutral surrogate for the police in Mirandizing the child. That's a lot different situation from a 15.17 hearing.
That is what we argued at trial court, and won. Def atty argues the interplay in the fam code that brings into play the CCP - can't remember the cite right now -- is the reason 15.17 applies. Have same situation where father testified that, had he been given the opportunity to talk to his son, he would have told him to get a lawyer, and not say anything.
I think Montejo came out about the same time as the trial, and Hughen after trial. I agree that Montejo overruled Rothergy in this context.
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