SB 395 — New law enforcement protections for students

March 7, 2018 ACSA Partner

By Georgelle Cuevas, Todd Goluba of AALRR Law Corporation, an ACSA Partner

The new law

You can read the full text of Senate Bill 395, by Senator Ricardo Lara, here.

Effective January 1, 2018, a California minor age 15 or under must consult with an attorney before he or she can give a confession to a law enforcement officer in a custodial setting, or at  least one which would be legally admissible in a court of law (SB 395, Welfare and Institutions Code § 625.6).

The consultation with the attorney can occur by phone or video conference.  Neither the minor nor the minor’s parent can waive this right. There is an exception if a law enforcement officer reasonably believes an immediate custodial interrogation is necessary to “protect life or property from an imminent threat” as long as the officer’s questions are limited to those necessary to obtain the needed information.  The law also does not prevent probation officers from performing their normal duties.

The policy behind the new law

Most people living in the United States are familiar with the words of the “Miranda warning,” even if only from movies and television.  “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”  In California, minors are given the same “Miranda warning” as adults when police take them into custody. (Welf. & Inst. Code § 625) However, this warning may be ineffective in protecting children’s rights because they may not fully understand these rights, the legal process, or the implications of waiving these rights.  

Minors can also be more susceptible to coercive interrogation techniques because they are impulsive and give more weight to immediate outcomes over long term consequences. A 2012 study on exonerations in the United States found that false confessions were obtained in 74% of exonerated minors who were 11-14 years old when interrogated and 34% of the minors who were 15-17 years old when interrogated, while only 8% of the adults without known mental disabilities falsely confessed when interrogated. (Gross, Samuel R. “Exonerations in the United States, 1989-2012: Report by the National Registry of Exonerations.” M. Shaffer, coauthor. The National Registry of Exonerations, (2012)).

Proponents of this bill pointed out, as mentioned, the rising rates of false confessions for youth as well as the unnecessarily high costs (more than $282 million) of false confessions to the state of California. They argued that police were unfairly able to remove a child from school without a guardian’s permission, interrogate the student for hours, lie to the minor about evidence that may not exist, threaten prison sentences, and not contact a parent during interrogation, even when a child is asking to speak with their mother or father (

The American Association of Child and Adolescent Psychologists similarly advocated for attorneys to be always present with children who are with police, and that officers should take extra steps to use language that may be more clear to the student.

Impact on student discipline investigations

Welfare and Institutions Code section 625.6 will not apply to investigatory interviews conducted by school administrators. These interviews do not require Miranda warnings because they are not considered custodial interrogations.

However, in situations where school resource officers interview students on campus, a court may find that the student was “in custody” even though the student was not arrested. Courts will consider the student’s age, including the unique circumstances relating to the school setting where attendance is compulsory and disobedience is cause for discipline, when determining whether a reasonable student would have believed he or she was free to leave. (J.D.B. v. North Carolina (2011) 564 U.S. 261, 277)  

In situations where it is determined that under the circumstances the student was subject to a “custodial interrogation,” the failure of the SRO to comply with SB 395 may lead to the confession being found inadmissible in a criminal prosecution. However, admissibility of the confession in a student discipline proceeding would not be affected.

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