Upon Learning that the Police Want to Question, Detain or Arrest Their Child For Alleged Criminal or Delinquent Conduct, A Parent’s Initial Reaction May Not Prove to Be The Wisest Course of Action
by Christopher G. Frey, Esquire, and J. Larry Hart, Esquire
The Law Offices of Carlson, Meissner, Hart & Hayslett, P.A.
As criminal defense attorneys, we frequently meet with parents who have a child who is being approached for questioning, detained and/or arrested for alleged criminal (delinquent) conduct. An unexpected and surprise encounter with law enforcement in this type of a scenario can be frightening - and confusing. The vast majority of parents in our community have been taught to respect law enforcement, obey the laws of our state, and to raise and teach our children to do the same. As parents raising children, we are intimately familiar with such tenets. We are also well aware of parents’ knee-jerk reactions to encounters with law enforcement personnel regarding alleged misconduct of their child or children: almost instinctively demanding that your child “tell us (them) all about it”.
The Constitutions of the United States and the State of Florida both provide constitutional protections against self-incrimination and the right to have counsel present prior to or during any questioning by law enforcement. In simplified terms, this means that any person accused of committing a crime, or a delinquent act, has an absolute right to remain silent with regard to the allegations, and to have an attorney present before or during any questioning by law enforcement. Children, even minor children, accused of criminal or delinquent acts are protected by these, and other, rights.
The Florida Evidence Code, contained within Chapter 90 of the Florida Statutes, creates certain evidentiary privileges
that provide for the confidentiality
of certain communications between protected classes of people. Perhaps the most widely recognized is the Attorney-Client privilege. Another publicly familiar privilege is the Husband-Wife privilege, also provided for within Chapter 90. Please understand that under state law these privileges only afford protection to confidential communications
, they do not provide a blanket prohibition on the use of testimony relating to certain observations or physical actions. Additionally, it should be noted that many, if not all evidentiary privileges can be abrogated when the information sought to be protected pertains to certain offenses, such as allegations of child abuse, sexual abuse, or intentions of any person to inflict FUTURE physical harm to a person, and such information is expressed during confidential discussions. It has been our experience that an overwhelming majority of parents are not aware of the fact that Florida law does NOT recognize
a Parent-Child privilege (or a privilege between siblings) that provides for confidentiality of communications between parents and their children. Hence, when your child or children “tell you all about it”, the content of their statements is NOT confidential, and is consequently unprotected. Yes – this means you can be called as a witness regarding such communications, in addition to any observations of incriminating or corroborative conduct.
Before proceeding with this article, please understand that the content contained herein is intended to provide only general information and basic considerations relating to its subject matter. It is not an exhaustive outline of the laws or rules mentioned. Such laws and rules can significantly vary from state to state. Generally speaking, in considering legal privileges one is dealing with a mechanism that largely functions to prevent the disclosure of what may be extremely valuable information (i.e. critical evidence). As a result, such privileges are almost always narrowly drawn and strictly construed in their application. It is also worthy of note that there are a number of relationships / factual circumstances in which there are very few, one or no privileged communications applicable or recognized by the law. The analysis can be very involved and is not addressed herein due, in part, to the fact that the applicability of such privileges is determined on the facts of each case. Even seemingly minor factual differences can be critical and determinative of their applicability).
The belief that such parent-child confidentiality exists seems to be especially prevalent where parents are communicating with their minor
child or children, or when seeking the services of an attorney to represent their minor
child or children in a criminal matter. Standing alone, the fact that a child is a minor
is of no consequence. Any communications between a parent and child are still NOT
protected as confidential. Therefore, any statements received by a parent from that parent’s child (whether a minor or an adult) may be used against the child in a criminal prosecution. Additionally, there is a real danger of waiving the recognized Attorney-Client privilege if the attorney obtains statements from the child in the presence of an unprivileged third party, including the parent
. In our experience, most parents find that there exists no more uncomfortable position than the prospect of being listed as a government witness against that parent’s own child. And it is no different from the child’s perspective.
Many parents find the absence of a formally recognized Parent-Child privilege with regard to such communications to be tremendously unsettling. After all, most parents teach their children to be honest when speaking with them, to respect laws and law enforcement, and to do the same when speaking with the police - right
? It seems to “cut against the grain” of these teachings to recommend remaining silent, or to “lawyer up” in such situations. It also feels unnatural, and for many parents even insulting, to have the attorney they have hired to represent their child to ask them to “wait outside” while the attorney speaks with the child in confidence. A parent may feel even more frustrated when the attorney recommends that the parent not discuss the facts of the matter with the child. However, both the parent(s) and child must
bear in mind that it may well be in the best interests of both to heed such advice.
With regard to a child’s statements to law enforcement officers, the same initial reactions of parents seem to also generally apply. However, never fail to appreciate that the choice to not
speak to law enforcement, i.e. to remain silent, or to request the presence of an attorney before or during any questioning are constitutional rights
. The choice to invoke those rights is in no way a sign of disrespect for the law, law enforcement or the parents. It can be a very prudent decision.
It is agreed that the vast majority of law enforcement officers are diligent, respectful and honest. They are charged with the duty to investigate alleged criminal conduct, and speaking with a suspected delinquent or violator is a routine part of any investigation. But, investigators are human. Most do not have photographic memories, and, unless a statement is recorded, the contents of any such statement may be reflected in an incident report as the investigator’s interpretation of what had been stated, and not the actual statement itself. There is also a danger of inaccurate reporting, albeit unintentional, or a statement reported out of context in relation to other information retrieved in the investigation. For example, consider the comment “I did it”. Lower your voice and assert it. Now, state the identical words as a question, or posit them as a sarcastic / facetious comment. On paper, they’d all read the same - and it may well be “recorded” (if only in a written report) by someone who doesn’t know the speaker, their unique behaviors and/or “the way they put things”.
Law enforcement investigators are trained in interrogation technique. While some may deem it to be unfair, the law, to some degree and in some circumstances, permits investigators to utilize deception to extract statements or “confessions”. This is a fact. Likewise, investigators most often attempt to retrieve more information than they provide to a child being questioned. In this regard, the subject being questioned usually does not have much (if any) insight into information previously obtained by investigators. Statements provided by a child to interrogators may seem to be harmless or even outright denials of criminal conduct. However, from the investigator’s standpoint, such statements may contain information that the investigator believes corroborate other incriminating facts previously unearthed in the investigation. Additionally, if investigators have already spoken to other people allegedly involved in or knowledgeable of the criminal activity, even seemingly harmless statements made by the child may be contradicted by the statements of others and thereby create the appearance that the child is not being honest.
Two other factors may come into play in a criminal investigation. First, when a child speaks to law enforcement, the fact that a child is a minor
does NOT necessarily prohibit the investigator from speaking to the child without the parent present
. However, the absence of a parent may eventually become a factor for the court to consider when determining the voluntariness of the provided statement. Secondly, if the child suffers from a language barrier, a mental infirmity, or a difficulty processing or conveying information, ANY
statements made to parents or law enforcement may be in danger of being misconstrued, and subsequent correction may appear to be contrived. In these situations, and under certain circumstances, a parent may become a privileged party and benefit from the confidentiality of communications if the parent is necessary to interpret or assist the child’s attorney in understanding the child’s statements. Again, there is no general rule providing for this status, and each situation shall be determined on a case-by-case basis. Courts strictly construe the application of any evidentiary privilege in accord with the law.
The information in this article deals with highly complicated legal issues regarding the role of a parent in the investigation of a child for alleged delinquent or criminal conduct, and the providing of statements to law enforcement in a criminal investigation. We cannot stress enough our strong recommendation that any parent
confronted with a criminal accusation against their child should seek legal counsel prior to speaking with the child, or advising that the child speak with law enforcement. In our experience, the criminal justice system serves as a poor substitute for what may be well-intended parental “guidance or discipline”. But, that is a subject for another article.
If you or your child encounters criminal accusations, you can call us at the contact numbers provided on this website. Be smart and be safe.