posted 04-14-2008 12:06 PM         

We may have had a similar conversation on this board but I am not sure.

Do any of you have a juveline waiver form or other type of parental consent form? Is it some type of law, regulation, standard or just your policy?

Do we even need one?

Thanks

posted 04-14-2008 12:35 PM            

Essentially though, you've got a Miranda issue to deal with. You usually need parental permission for a custodial interview, and with components attached, it's hard to argue no custody. Granted, his attorney is there, which means Miranda isn't necessary, but you still haven't solved the parental permission aspect.

posted 04-14-2008 03:25 PM         

I do have a Mirand issue because the kid is in custody. I don't need his parents to sign off on the interogation as minors are not entitled to have a parent present during an interrogation. That part of the Miranda advisement has been gone for many years now. I am only concerned with why we have to have a parental consent form for juveniles to take a polygraph. I would also appriciate a copy of any that you may have.

THX

Ted

And for the record, bumping heads with Barry can be fun!

posted 04-14-2008 04:54 PM            

Do you use a waiver of liability with your people? If so, that's a contract (you offer to conduct the polygraph in exchange for his agreement not to sue you), and somebody correctly pointed out that minors aren't can't be bound by a contract (the irony is that you can still be held to your end of the bargain).

You'd have to see what your courts think of polygraph and custody. The definition of custody - anywhere in the US - involves restricting a person's freedom to move about unencumbered. That means if you tell him not to move during your test (and strap him in) you've got an uphill battle. Just because he volunteered to restrict his movement doesn't mean he hasn't changed his mind - and keep in mind that this is a juvenile (even though he's 17). He's under no obligation to tell you he feels like the situation has changed from non-custodial to custodial - plus it's an objective test, and I couldn't argue with at straight face that my examinees aren't in custody for Miranda purposes. (Would you let other people in the testing suite? That's something the courts look like: separating a person from those who might offer him support and assistance. Most of us would kick the attorney out.)

Do doctors touch juvenile patients in your state (except in emergencies where permission is - by law - implied) without parental permission? Why? Doing so could be considered an actionable tort. I would think that the lawyer who's asking could answer the question if he thought about it. Don't you have a legal advisor? Can an attorney give permission in your state?

Does a parent have a right to deny access to the juvenile even if the juvenile agrees? Parents can in most places. (There's a whole other parental rights issue here too.)

posted 04-14-2008 06:21 PM            

Miranda is the same, but some states are more restrictive than others in their interpretation - as are some Federal jurisdictions.

If you have custody - which is defined a little differently in many jurisdictions - and interrogation, then you have a Miranda situation.

You don't need to arrest a person to have custody. For example, if you handcuff a person for officer safety - even if you tell the guy he'll be free to leave when you're done, then you have custody for Miranda purposes.

If you tell a person who is in his own house that you need to go into a different room away from his parents, for example, so you can talk privately, then you might have custody (and if you want to wait until I get back to the office I can get the case it was a federal decision). Just because a guy appears to be "volunteering" doesn't mean he is.

With juveniles, the courts usually say they are too young to make such decisions, and that is why we get a parents permission. We still get the child's as a child have his rights waived by his parents.

To argue that a person is in custody isn't a crazy idea. Our legislature mandates that we tell subjects - who by law must volunteer - about their constitutional right to remain silent and not incriminate themselves. Apparently, our legislature recognized that once strapped in "voluntary" didn't mean much when it comes to constitutional issues.

posted 04-14-2008 06:49 PM            

quote:

---

HN1When federal law enforcement officers take a juvenile into custody, 18 U.S.C. § 5033 requires that they notify the juvenile's parents of the custody and "of the rights of the juvenile." In several recent cases, we have clarified the meaning of § 5033. We have explained that "children need parental involvement during interrogation" and that the purpose of § 5033 is to provide "meaningful protection" of juveniles by facilitating such involvement. United States v. Doe, 170 F.3d 1162, 1167-68 (9th Cir.) ("Doe IV"), cert. denied, [**2] 528 U.S. 978, 120 S. Ct. 429, 145 L. Ed. 2d 335 (1999). Accordingly, we have held that HN2law enforcement officers must notify parents of their child's Miranda rights and that such notification must occur prior to interrogation, when notification of the juvenile's Miranda rights has purpose. Id. at 1166-68. And we have held that, if parents ask for an opportunity to advise and counsel their child, the request cannot unreasonably be denied. United States v. Doe, 219 F.3d 1009, 1017 (9th Cir. 2000) ("Doe V").

---

posted 04-14-2008 10:21 PM            

First off, great name!

It reminds me of my time on the streets.

As Barry has stated, the requirements of Miranda are custodial interrogation. How that is defined is up to the relevant authority of jurisprudence in your area (e.g. district attorney, attorney general, etc.)

The same is true with the permission to talk to or test a juvenile.

As you have indicated, all of this is good information but this is getting out of our area of expertise.

Don’t get me wrong, I love to debate the issues at hand and we have had similar discourses on this subject in the past. However, issues that deal with potential legal proceedings should be handled by those aforementioned entities, as they are qualified to do so and there may be local interpretation needed for more restrictive applications of the issue.

posted 04-14-2008 11:52 PM         

FORGET MIRANDA ! (I'll Box with Barry later on that issue)

We use a form (In addition to any Miranda requirement or form) that says 'this is my kid and I say he can take a polygraph exam'.

Why do we, have, or need, this form?

Do any of you have a similar form or parental requirement?

Thanks for all of the input!

Ted

posted 04-15-2008 01:35 AM            

Aside from any requirement, everyone is on the same page regarding what will be done, agrees to proceed and confirms this by signing the Release.

One could argue, due to the homicide investigation, an attorney (may) carry more weight in this type of issue than the parent. I'd allow the attorney to sign, again modifying the Release to indicate the attorney is signing on behalf of the parents.

I wouldn't conduct your examination without Miranda as you state the examinee is a suspect in a homicide case. Not likely you'll get any admission/confession admitted into Court without it. I don't believe there's any statement indicating the Miranda admonishment doesn't have to be given simply because an attorney is present with the defendant. Suspect's present, attorney's present, under your circumstances I'd have no hesitation in giving Miranda as you will likely receive positive answers to the Waiver.

In my opinion, you definitely have a Miranda issue as you are talking to a murder suspect! Why risk losing all information you may learn during the exam process? What does your DA want?

In this case my primary concern would be Miranda and the signature of a parent/attorney. Not so much for liability concerns but to ensure I get incriminating statements admitted. Both the juvenile and parent/attorney review the Release containing Miranda, waive Miranda and by signing indicate they understand Miranda and all other statements in the Release.

Ted - If I recall correctly you're in CA and with a LE agency. I'd be very surprised if this is the suspect's first exam regarding this issue.

END.....

posted 04-15-2008 08:36 AM         

I am not suggesting that a Miranda advisement not be given. That is insane. If the kid is in custody the advisement is mandatory.

What I am asking you to do, for the sake of this post, is to put the whole Miranda thing aside and address just the issue of a juvenile polygraph waiver form.

We have traditionally used it IN ADDITION to the Miranda Advisement Form. My question is:

Do we need it and if so, why?

posted 04-15-2008 08:57 AM            

Read my stuff again. What I'm saying is that Miranda and parental consent are inseparable in most jurisdictions, so you can't put one aside or you just end up with a theoretical discussion that is better left to lawyers - not practicioners. Even if you do set it aside, you still have those other issues that have been mentioned, so no, it's not just tradition to get a parent's permission.

Again, would a doctor do any tests on a juvenile without permission from a parent (except in those situations authorized by law)? No, they wouldn't. The same reasoning holds here.

posted 04-15-2008 09:50 AM            

I,________________, being the (legal guardian) (parent ) of _________________do hereby permit said person to submit to a polygraph examination to be conducted at_______________ pertaining to ____________
(Brief Description of Tasting Issues / Offenses)

I furthermore understand that this consent is strictly voluntary and can be withdrawn
at any time. I also understand that __________ must voluntarily consent to the examination and that their consent may be withdrawn at any time.

________________ _________________
Date of Consent Signature of Parent / Guardian)

__________________________
(Witness Signature)

__________________________
(Typed/Printed Name of Witness)

__________________________
__________________________
(Address of Parent/Guardian)
_______________________
(Telephone Number of Parent/Guardian)

posted 04-15-2008 02:34 PM            

Thanks for the compliment on my screen name, it is from my earlier years when I worked for a city PD. Although I now work for a Sheriff's Office, I have just kept that name. I did get off topic with what Ted was asking, sorry about my Miranda rant. Alright, moving on...

Tedd,

Here at my agency we have a parent / legal guardian consent form that we get signed. Then, while the parent / guardian is still present, I cover the regular consent form with the juvenile being tested. I then have both the juvenile and parent sign that consent form before the test. That way it shows that the parent / legal guardian gave their consent for the juvenile to be tested and it shows that they both understood the normal consent form. It may sound like duplicate work, but the forms are slightly different. If you would like I would be more than happy to e-mail you our parent / legal guardian consent form to compare with any others you have. Just let me know :-).

[This message has been edited by citypopo7 (edited 04-15-2008).]

posted 04-15-2008 06:18 PM         

18 U.S.C. 5033c(1) goes on to read: "This section is applicable only to a federal arrest on federal charges"
(United States v. Doe(9th Cir. 1998) 155 F:3d 1070, 1076-78.)

Section c (2) reads the section is "not applicable to the juveniles arrested by state authorities". (United States v. Kerr(11th Cir. 1997) 120 F:3d 239,241;United States v. Juvenile Male (4th Cir. 1996)74 F:3d 526.)

In other words, this section does not apply to local or state police. Some points under which we operate:

"There is no constitutional (state or federal)requirement that a law enforcement officer advise a minor that he or she has a right to contact his parents (or other adult) or to have them present during questioning. (In re Aven S.(1991)1 Cal App.4th 69,76.)

Additionally:

"A juvenile need not be told of his right to talk to a parent or to have a parent present or that the parent is attempting to contact the juvenile" (In re Jessie L. (1982) 131 Cal.App 3d 202,215,: In re Gregory Z. (1987) 190 Cal. App 3d 1558.

The short version:

There is no legal requirement(at least in California) to have a parent present during the questioning of a juvenile who is in custody. However, "Juveniles are entitled to the constitutional protections of the Fifth Amendment privilege against self incrimination and due process. (In re Gault (1967) 387 U.S. 1[18 L.Ed.2d 527]).

Source: "Miranda and the Law", Prosecutors Notebook Volume XXII California District Attorney's Association.

Ted

posted 04-15-2008 06:45 PM            

I know the federal law only applies to feds, but it was the reasoning that flowed from it that concerns me, which is why I said hunt down people in your area who would know. None of that applies here in Maine as our statutes reflect the feds, and many times that is the case in many jurisdictions.

quote:

---

"There is no constitutional (state or federal)requirement that a law enforcement officer advise a minor that he or she has a right to contact his parents (or other adult) or to have them present during questioning. (In re Aven S.(1991)1 Cal App.4th 69,76.)

---

That's the opposite of your issue. Once I have the parents permission, I wouldn't have to tell him this stuff either. It's a different issue.

quote:

---

"A juvenile need not be told of his right to talk to a parent or to have a parent present or that the parent is attempting to contact the juvenile" (In re Jessie L. (1982) 131 Cal.App 3d 202,215,: In re Gregory Z. (1987) 190 Cal. App 3d 1558.

---

Same response as above. Different issues.

quote:

---

There is no legal requirement(at least in California) to have a parent present during the questioning of a juvenile who is in custody. However, "Juveniles are entitled to the constitutional protections of the Fifth Amendment privilege against self incrimination and due process. (In re Gault (1967) 387 U.S. 1[18 L.Ed.2d 527]).

---

Again, none here either. Different issue once again. I need permission - not presence, and I don't have to tell junior any of that.

All those cases pre-date the 9th Circuit case I cited, so they may not be current law. You'd have to ask an attorney. I think it was a 2000 decision.

posted 04-15-2008 08:58 PM            

The question for me is can the juvenile consent?

Can they understand the waiver form for the polygraph (i.e. what they are consenting to)?

Is their signature binding?

As you know, a court, criminal or civil, would most likely entertain those questions (among others asked).

posted 04-15-2008 11:21 PM         

Thanks for the input. The bottom line here is that I refused to test the kid because the defense attorney never had the parent sign the consent form. My own DA asked why the hell I needed the parent to sign the form and I had no answer other than that was the way we always did it!