Who Can Provide Meaningful Consultation Before Interrogation?

Pursuant to I.C. 31-32-5-1, in Indiana, ANY rights guaranteed to a child under the Constitution of the United States, the Constitution of the State of Indiana, or any other law may be waived only:

  1. By counsel retained by or appointed to represent the child if the child knowingly and voluntarily joins in the waiver;
  2. By the child’s custodial parent, guardian, custodian, or guardian ad litem if: (A) that person knowingly or voluntarily waives the right; (B) that person has no interest adverse to the child; (C) meaningful consultation has occurred between that parent and the child; and (D) the child knowingly and voluntarily joins with the waiver; or
  3. By the child, without the presence of a custodial parent, guardian, or guardian ad litem, if: (A) the parent knowingly and voluntarily consents to the waiver; and (B) the child has been emancipated under I.C. 31-34-20-6 or I.C. 31-37-19-27, by virtue of being married, or in accordance with the laws of another state or jurisdiction.

First, it is important to remember that the child must join in the waiver of the Right to Remain Silent, as noted in the statute.  It is not enough for the attorney, custodial parent, guardian, custodian, or guardian ad litem to waive the Right to Remain Silent without the child’s agreement.

Next, notice that the list of adults includes the custodial parent — not either parent — but the list of adults who can provide meaningful consultation includes a custodian, who is a person with whom a child resides.  (I.C. 31-9-2-31(a)).  The courts have found that the role may include a grandparent with whom the child resides (Tingle v. State, 632 N.E.2d 345 (Ind. 1994)) and a young adult who is caring for the child if the adult is trusted by the child and the adult feels sufficiently secure in the role to accompany the child to the interrogation and to sign the required paperwork (Sevion v. State, 620 N.E.2d 736 (Ind.Ct.App. 1993)).

In certain instances, the courts have upheld parental substitutes that are not included in the statute for waiver of rights.  In Andrews v. State, 441 N.E.2d 194 (Ind. 1982), the Court noted that in sometimes a parental substitute may be more valuable to the child when evaluating whether to waive constitutional rights.  The primary focus is on the child’s rights and not the parents’.

Finally, the person acting as an advisor to a child during meaningful consultation may not have an adverse interest to the child.  I.C. 31-32-5-1(2)(B).  For instance, if the case involves an allegation of the child battering the mother, it would not be proper for the mother to be the advisor for the child when determining whether to waive constitutional rights.

See also this article, Juvenile Miranda Waiver and Parental Rights, 126 Harv. L. Rev. 2359 (2013).

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