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“To address the special concerns presented when a juvenile is brought into custody . . .”

State in the Interest of A.A.,
240 N.J. 341, 345 (2020)

Custody and Juvenile Statements

Juveniles may be taken into custody for delinquency, N.J.S.A. 2A:4A-31, including without a complaint or warrant, when a law enforcement officer “has probable cause to believe [the juvenile] is delinquent.” R. 5:21-1. When a juvenile is taken into custody, his or her parents or guardian must be notified immediately, N.J.S.A. 2A:4A-33; and if a complaint has not already been filed, one must “immediately be filed,” R. 5:21-1. Being taken into custody typically means that a juvenile is taken to a police station or a juvenile detention facility. Juvenile Detention Facilities are administered in New Jersey by the Juvenile Justice Commission, about which more information can be found here:

By the next morning after being taken into custody, a juvenile is entitled to a hearing that will determine whether he or she should remain in custody. N.J.S.A. 2A:4A-38(e); R. 5:21-3(a). (Subsequently, a juvenile is entitled to ongoing review of his detention status, N.J.S.A. 2A:4A-38(j), and a juvenile's lawyer may petition the court regarding detention status whenever appropriate.) Strict conditions determine whether a juvenile may remain in custody: N.J.S.A. 2A:4A-34(c) provides, in sum, that juveniles “shall be released” and “may not be placed or retained in detention” unless the court is convinced that the “physical safety of persons or property of the community would be seriously threatened if the juvenile were not detained” or that the juvenile has “a demonstrable record of recent willful failure to appear at juvenile court proceedings.” See also Rule 5:21-2(a). The family court judge that determines whether to release a juvenile must consider at least eight different alternatives to detention, such as release to parents or release “with imposition of restrictions on activities, associations, [or] movements.” N.J.S.A. 2A:4A-34(d). In cases involving serious offenses or a record of failing to appear, a family court judge may release a juvenile with an electronic monitor on his or her ankle. Only rarely would it be appropriate for a juvenile to remain in custody pending disposition of his or her charges. In such cases the proceeding should occur on an expedited basis. See N.J.S.A. 2A:4A-38(k).

In addition to being formally arrested or taken to the police station or juvenile detention facility, a juvenile can be “in custody” in a related but legally distinct sense: when police otherwise place “restraint on freedom of movement of the degree associated with a formal arrest.” See J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011). This can occur at virtually any location, such as at school, on the sidewalk, or even when a juvenile voluntarily reports to a police station to speak with police about an offense under investigation. The New Jersey Supreme Court has identified the “conditions, substance, and duration of [a police] interview,” or prior “events at [a suspect]’s home,” as relevant to the determination whether he or she is in custody. State v. Hubbard, 222 N.J. 249, 265-66 (2015). And the United States Supreme Court recognized in J.D.B. the “commonsense reality” that the juvenile’s age should be considered in this analysis.

Whether a juvenile is “in custody” in this sense may sound like a legal formalism, but it is closely related to the juvenile’s right to remain silent and determines whether a protective set of rules applies to statements juveniles may make to police, as discussed below.

As suggested in the section heading, a line of New Jersey Supreme Court cases addresses the special concerns that apply when a juvenile is brought into custody, particularly as related to the juvenile’s right to remain silent. If the police question a juvenile in custody and he or she makes a statement the State later seeks to use in a delinquency proceeding against the juvenile, the State must make a motion and:

  • The State must prove that the police advised the juvenile of his or her “Miranda rights in the presence of a parent or guardian before the police question, or a parent speaks with, the juvenile” and the police “then let the parent and child consult in private.” State in the Interest of A.A., 240 N.J. 341, 345 (2020).
  • The State must prove that any waiver of the right to remain silent and statement given by the juvenile was “knowing, intelligent, and voluntary” based on “the totality of circumstances,” including “age, education and intelligence, advice as to constitutional rights, length of detention,” quality and duration of questioning, and “previous encounters with the law.” See State in the Interest of A.S., 203 N.J. 131, 146 (N.J. 2010). (If the juvenile waives his right to remain silent or gives a statement outside the presence of a parent, the totality of the circumstances could include the juvenile’s “clear desire to speak outside the presence of his [parent], [a parent]’s initial agreement to be absent, [or] fair treatment by police.” See State v. Presha, 163 N.J. 304, 308 (2000).)
  • And the State must prove that procurement and admission into evidence of any statement by a juvenile otherwise complies with due process—for example, that it was otherwise voluntary. See, e.g., Haley v. Ohio, 332 U.S. 596, 599 (1948) (“We do not think the methods used in obtaining this confession can be squared with that due process of law which the Fourteenth Amendment commands.”); In re State in the Interest of Carlo, 48 N.J. 224, 243 (1966).

These are some of the most significant procedural requirements applying to statements made by juveniles who are in custody. (The last requirement, due process, always applies to all aspects of juvenile proceedings.) A juvenile defense attorney should be ready to hold the State to these requirements—vigorously. Notably, the requirements regarding parents may be relaxed or disregarded when parents are “unwilling to be present or truly unavailable,” but the cases of A.A. and Presha require that “law enforcement officers must use their best efforts to locate the adult before beginning the interrogation,” and if interrogating in the absence of a parent they must use “utmost fairness and . . . the highest standards.” See also State in the Interest of S.H., 61 N.J. 108, 115 (N.J. 1972). In State v. O.D.A.-C., the Supreme Court of New Jersey recently reaffirmed that a police officer “cannot directly contradict, out of one side of his mouth, the Miranda warnings just given out of the other.”

It is worth emphasizing again that the lion’s share of these protections apply only to juvenile statements made in response to police questioning in custody—and, for example, would not apply when a juvenile, free from restrictions on movement by police, blurts out incriminating information that happens to be overheard. See, e.g., In re State in the Interest of Stasilowicz, 105 N.J. Super. 151, 156 (App. Div. 1968). Further, as noted on the Complaint tab, charging a juvenile in a complaint is a “critical stage” at which the juvenile has a right to legal counsel, State ex rel. P.M.P., 200 N.J. 166, 178 (2009), which “means that juveniles cannot be asked to waive the right [to remain silent or the right to legal counsel] at that stage without an attorney present.” State in the Interest of N.H., 226 N.J. 242, 253 (2016); N.J.S.A. 2A:4A-39.

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