109OAG3 ( 2024 )

CONSTITUTIONAL LAW
JUVENILE CAUSES – CUSTODIAL INTERROGATION – RIGHT TO
COUNSEL – WHETHER THE CHILD INTERROGATION
PROTECTION ACT VIOLATES ANY CONSTITUTIONAL
RIGHT OF A CHILD TO SUBMIT TO CUSTODIAL
INTERROGATION WITHOUT THE ASSISTANCE OF COUNSEL
OR OF A PARENT TO CONTROL THEIR CHILD’S DECISIONS
DURING INTERROGATION
January 11, 2024
The Honorable Elizabeth Embry
Maryland House of Delegates
In 2022, the General Assembly enacted the Child
Interrogation Protection Act (the “Act”), which, among other
things, provides that “[a] law enforcement officer may not conduct
a custodial interrogation of a child until . . . [t]he child has consulted
with an attorney.” Md. Code Ann., Courts & Jud. Proc. (“CJP”)
§ 3-8A-14.2. In the summer of 2023, soon after the law took effect,
some prosecutors began making public statements suggesting that
the Act might be unconstitutional. They have raised two
arguments. First, they have suggested that the Act’s requirement
that a child consult with an attorney might be unlawful because, the
argument goes, a suspect not only has a constitutional right to the
assistance of counsel at custodial interrogation but the right to
proceed without the aid of an attorney. The statute is thus
unconstitutional, the argument continues, because it denies
children the right to submit to custodial interrogation without the
assistance of counsel. Second, these prosecutors have suggested
that the Act might unconstitutionally infringe upon parental rights
by not permitting parents to decide whether their child should
consult with an attorney, speak to police, or both. In light of these
public statements, you have asked for our opinion about the
constitutionality of the Act.
As we explain below, we see no basis to conclude that the
Act’s attorney-consultation requirement violates the constitutional
rights of children or their parents. With respect to children subject
to the Act, we are not aware of any “right” to be subjected to
custodial interrogation without the assistance of counsel. Although
the United States Supreme Court has recognized a limited right to
self-representation at criminal trials, the Court has never suggested
that such a right applies to custodial interrogations. Regardless,
even if such a right to self-representation existed, the Act does not
actually prevent a child from answering police officers’ questions
3
4 [109 Op. Att’y
without the presence or assistance of an attorney. As for parents,
the Supreme Court has recognized a constitutional right to make
certain decisions about a child’s education and upbringing. But the
Court has never held that parents have a right to decide whether
their children should invoke or waive constitutional protections
during custodial interrogation. Although the Court has not
addressed that specific question, it has, in cases involving the
custodial interrogation of a child, focused on the individual liberty
interests of the child, implying that these rights are paramount and,
thus, prevail over a parent’s interest in the care, custody, and
control of their child.
I
Background
A. Custodial Interrogations in Maryland Before October 2022
Before the Child Interrogation Protection Act took effect on
October 1, 2022, custodial interrogations of children in Maryland
were generally subject to the same standards that apply to the
questioning of adults in police custody.1 No matter a person’s age,
when a police officer takes someone into custody, the officer may
not interrogate them without first providing “Miranda warnings.”
See, e.g., Rush v. State, 403 Md. 68, 83 (2008) (involving Miranda
warnings to an adult); In re Shannon A., 60 Md. App. 399, 402, 405
(1984) (involving Miranda warnings to a child). These warnings
come from the United States Supreme Court’s landmark decision
in Miranda v. Arizona, 384 U.S. 436 (1966). There the Court held
that, to protect a suspect’s privilege against self-incrimination
under the Fifth Amendment to the United States Constitution, 2
police cannot subject someone to custodial interrogation without
first warning the person that they have the right to remain silent,
that anything the person says can be used against them in court, that
“By custodial interrogation, we mean questioning initiated by law
1
enforcement officers after a person has been taken into custody or
otherwise deprived of [their] freedom of action in any significant way.”
Miranda v. Arizona, 384 U.S. 436, 444 (1966).
The Fifth Amendment says that “[n]o person . . . shall be compelled
2
in any criminal case to be a witness against himself,” U.S. Const.,
Amend. V, and applies to the States through the Fourteenth Amendment,
e.g., Malloy v. Hogan, 378 U.S. 1, 6 (1964). Article 22 of the Maryland
Declaration of Rights similarly provides “[t]hat no man ought to be
compelled to give evidence against himself in a criminal case.” Md.
Decl. Rights Art. 22. The Supreme Court of Maryland has generally
construed the Maryland and federal provisions consistently. E.g., Hoey
v. State, 311 Md. 473, 480 n.2 (1988).
Gen. 3] 5
the person has the right to the presence of an attorney, and that, if
the person cannot afford an attorney, one will be appointed before
any questioning, if the person so desires. Miranda, 384 U.S. at
478-79. Only if the suspect knowingly, intelligently, and
voluntarily waives those rights may the State use the suspect’s
statement in a subsequent criminal prosecution, id. at 479, or
juvenile delinquency proceeding, In re Gault, 387 U.S. 1, 55
(1967).
A suspect’s age is not wholly irrelevant. Whether a person is
“in custody” and, thus, entitled to Miranda rights depends on
whether, under the totality of circumstances, a reasonable person
in the suspect’s position would not have felt free to terminate the
interrogation and leave. E.g., Thompson v. Keohane, 516 U.S. 99,
112 (1995). And although “a child’s age” may not “be a
determinative, or even a significant, factor in every case,” the
United States Supreme Court has said that age is a relevant
consideration in the custody analysis. J.D.B. v. North Carolina,
564 U.S. 261, 277 (2011). A suspect’s age—and whether a child
in custody has requested and had access to a parent—may also be
relevant to determining whether the suspect has knowingly,
intelligently, and voluntarily waived their Miranda rights. See,
e.g., Fare v. Michael C., 442 U.S. 707, 724-25 (1979) (explaining
that waiver is based on the totality of the circumstances, such as the
suspect’s “age, experience, education, background, . . .
intelligence, and . . . whether [the suspect] has the capacity to
understand the warnings given . . ., the nature of . . . Fifth
Amendment rights, and the consequences of waiving those
rights”); McIntyre v. State, 309 Md. 607, 621 (1987) (recognizing
that whether a child suspect asked for and was granted access to a
parent may be relevant in determining whether the child
knowingly, intelligently, and voluntarily waived their Miranda
rights).
Beyond these limited circumstances, however, the law has
generally applied the same standards to the custodial interrogations
of both children and adults. See, e.g., Barry C. Feld, Behind Closed
Doors: What Really Happens When Cops Question Kids, 23
Cornell J.L. & Pub. Pol’y 395, 399 (2013) (recognizing that,
“[a]lthough the [United States Supreme] Court has repeatedly
cautioned that youthfulness adversely affects juveniles’ ability to
exercise Miranda or make voluntary statements, it has not required
special procedures to protect young suspects”); Donald E. McInnis
et al., The Evolution of Juvenile Justice from the Book of Leviticus
to Parens Patriae: The Next Step After In re Gault, 53 Loy. L.A. L.
Rev. 553, 555 (2020) (“Although the Court has cautioned trial
6 [109 Op. Att’y
judges in regard to the immaturity of minors and minors’ inability
to invoke or waive their Miranda rights, the Court has not
mandated any special procedural protections for juveniles.”).3
B. Enactment of the Child Interrogation Protection Act
In 2022, the General Assembly considered legislation to
provide “a little bit extra” protection for children subject to
custodial interrogation. Voting Session on S.B. 53 Before the
House Judiciary Comm., 2022 Leg., Reg. Sess., at 18:54-18:59
(Mar. 28, 2022, Session No. 1) (statement of Del. Bartlett). These
bills were based on concerns that children often fail to understand
Miranda warnings,4 waive their Miranda rights at an alarmingly
3
Conforming to the mandates of Miranda and its progeny is not the
government’s only obligation when obtaining confessions. To comply
with Maryland common law, police must abstain from using “force,
undue influence, improper promises, or threats.” Hoey, 311 Md. at 483.
Similarly, to protect a suspect’s due process rights under the Fourteenth
Amendment to the United States Constitution and Article 24 of the
Maryland Declaration of Rights, police must avoid “overreaching,”
“coercion,” id. at 486, and the use of “interrogation techniques” that “are
so offensive to a civilized system of justice that they must be
condemned,” id. at 485 (quoting Colorado v. Connelly, 479 US. 157, 163
(1986)); see also U.S. Const., Amend. XIV, § 1 (providing that “[n]o
State shall . . . deprive any person of life, liberty, or property, without
due process of law”); Md. Decl. Rights Art. 24 (providing “[t]hat no man
ought to be taken or imprisoned or disseized of his freehold, liberties or
privileges, or outlawed, or exiled, or, in any manner, destroyed, or
deprived of his life, liberty or property, but by the judgment of his peers,
or by the Law of the land”); Reynolds v. State, 461 Md. 159, 176 (2018)
(recognizing that Article 24 is “a corollary to the federal Due Process
Clause”). As we shall explain, however, the intent of the Child
Interrogation Protection Act was to provide children more robust
protections of their privilege against self-incrimination under the Fifth
Amendment. Thus, we have focused on Miranda rights and the waiver
of those rights.
4
See House Floor Proceedings No. 43, 2022 Leg., Reg. Sess., at
28:08-28:12 (March 30, 2022) (statement of Del. Bartlett that “data
show[] that children do not understand Miranda warnings”); Senate
Floor Proceedings No. 44A, 2022 Leg., Reg. Sess., at 1:10:07-1:10:17
(Mar. 16, 2022) (statement of Sen. Carter that children often cannot
understand Miranda warnings); see also Hearing on S.B. 53 Before the
Senate Judicial Proceedings Comm. (Jan. 27, 2022) (written testimony
of Jeff Kukucka, Towson University Associate Professor of Psychology,
citing a study that found that 31 percent of juvenile defendants “showed
inadequate understanding of their Miranda rights”); id. (written
Gen. 3] 7
high rate,5 and frequently make false confessions.6 The sponsors
thus sought to impose two conditions before police could subject a
child to custodial interrogation: First, police would have to make
a reasonable attempt to contact the child’s parent, guardian, or
custodian,7 and, second, the police could not interrogate the child
until after the child consulted with an attorney. S.B. 53, 2022 Leg.,
Reg. Sess. (First Reader); H.B. 269, 2022 Leg., Reg. Sess. (First
Reader). “All this bill does,” said lead Senate sponsor Jill Carter,
“is make sure that the young person understands what they are
doing and what their rights are.” Voting Session on S.B. 53 Before
the Senate Judicial Proceedings Comm., 2022 Leg., Reg. Sess., at
testimony of Northwestern University Professors Laura Nirider and
Steven Drizin, citing “a recent study of twelve- to nineteen-year-olds
[that] showed that 69% didn’t fully comprehend their Miranda rights”).
5
See Hearing on S.B. 53 Before the Senate Judicial Proceedings
Comm. (Jan. 27, 2022) (written testimony of Maryland State Bar
Association Family & Juvenile Law Section that 90 percent of youth
waive their Miranda rights); Senate Floor Proceedings No. 44A, 2022
Leg., Reg. Sess., at 1:10:19-1:10:28 (Mar. 16, 2022) (statement of Sen.
Carter that 91 percent of children waive Miranda rights).
6
See Voting Session on S.B. 53 Before the House Judiciary Comm.,
2022 Leg., Reg. Sess., at 19:23-19:36 (Mar. 28, 2022, Session No. 1)
(statement of Del. Bartlett) (“It’s important for a child to understand
what they are facing. Because the problem is that there have been so
many false confessions.”); see also Hearing on S.B. 53 Before the Senate
Judicial Proceedings Comm., 2022 Leg., Reg. Sess. (Jan. 27, 2022)
(written testimony of National Juvenile Justice Network referring to a
study of youth who self-reported confessing that found that 35 percent
reported falsely confessing).
7
The Juvenile Causes Act has long required that, when police take a
child into custody, the police “immediately notify, or cause to be
notified, the child’s parents, guardian, or custodian of the action.” CJP
§ 3-8A-14(b) (2020 Repl. Vol.). But this statutory requirement does not
apply when a child is taken into custody on serious criminal charges that
are beyond the scope of the juvenile court. See Jones v. State, 311 Md.
398, 406-07 (1988) (holding that the parental notification requirement,
then found at CJP § 3-814(b), did not apply to a seventeen-year-old
arrested and charged with first degree murder and, thus, noncompliance
with the statute “had no direct bearing on the validity of [his] Miranda
waiver”). Similarly, § 2-108 of the Criminal Procedure Article has long
required police to attempt to notify a minor’s parent or guardian when
the child is taken into custody in a criminal matter. Md. Code Ann.,
Crim. Proc. § 2-108(b). But the statute does not condition custodial
interrogation on that notification. Id. Indeed, before passage of the Child
Interrogation Protection Act, the statute gave police 48 hours in which to
attempt to notify a minor’s parent or guardian that the minor was in
custody. 2022 Md. Laws, ch. 50.
8 [109 Op. Att’y
1:06:22-1:06:31 (Mar. 11, 2022) (statement of Sen. Carter). After
consulting with the attorney, “the child would then still be subject
to interrogation,” with the option to waive their Miranda rights and
speak to police. Id. at 1:00:13-1:00:20, 1:06:32-1:06:52
(statements of Sen. Carter). But the Miranda rights could not “be
waived without the individual talking to an attorney first.” Voting
Session on S.B. 53 Before the House Judiciary Committee, 2022
Leg., Reg. Sess., at 20:01-20:06 (Mar. 28, 2022, Session No. 1)
(statement of Del. Bartlett).
Both chambers of the General Assembly passed the
legislation, but Governor Lawrence J. Hogan, Jr. vetoed it, echoing
criticism that several law enforcement officials and prosecutors had
raised. While praising the legislation’s “good intentions,”
Governor Hogan said that the requirement that a child consult with
an attorney would “effectively eliminate the ability for law
enforcement to interrogate a youth,” thereby “hamper[ing] criminal
investigations.” Letter from Gov. Lawrence J. Hogan, Jr. to Senate
President Bill Ferguson Regarding Veto of S.B. 53, at 1 (Apr. 8,
2022); see also Hearing on S.B. 53 Before the Senate Judicial
Proceedings Comm., 2022 Leg., Reg. Sess. (Jan. 27, 2022) (written
testimony of Allan J. Culver, State’s Attorney for Carroll County,
that the legislation would impose “unnecessary logistical hurdles”
that “would effectively eliminate” police officers’ “ability to
question a juvenile in custody for even the most violent crimes”);
Hearing on S.B. 53 Before the House Judiciary Comm., 2022 Leg.,
Reg. Sess. (Mar. 23, 2022) (written testimony of Laura Corbett
Wilt, Chief Assistant State’s Attorney for Frederick County,
arguing that the requirement that a child consult with an attorney
before custodial interrogation would “shut down every single
investigation involving youth” because defense attorneys “do not
allow clients to speak”). But see Hearing on S.B. 53 Before the
Senate Judicial Proceedings Comm., 2022 Leg., Reg. Sess. (Jan.
27, 2022) (written testimony of Baltimore City State’s Attorney
Marilyn Mosby, hailing this “important piece of legislation that can
protect our children while at the same time promoting public
safety”). The General Assembly overrode the veto, and the Child
Interrogation Protection Act took effect on October 1, 2022. 2022
Md. Laws, ch. 50, § 3.
As enacted, the statute provides that “[a] law enforcement
officer may not conduct a custodial interrogation of a child until”
Gen. 3] 9
“[t]he child has consulted with an attorney”8 and “[t]he law
enforcement officer has made an effort reasonably calculated to
give actual notice to the parent, guardian, or custodian of the child
that the child will be interrogated.” CJP § 3-8A-14.2(b). The
requirement of consultation with an attorney may not be waived
and applies regardless of whether the child is proceeded against as
a child or charged as an adult. Id. (e).
The consultation with an attorney shall be confidential and
“[c]onducted in a manner consistent with the Maryland Rules of
Professional Conduct,” id. (c)(1), which, among other things,
require an attorney to “abide by a client’s decisions concerning the
objectives of the representation and, when appropriate,” to “consult
with the client as to the means by which they are to be pursued,”
Md. Rule 19-301.2(a). Consultations may be in person or by
telephone or video conference. CJP § 3-8A-14.2(c)(2). “To the
extent practicable and consistent with the Maryland Rules of
Professional Conduct, an attorney providing consultation . . . shall
communicate and coordinate with the parent, guardian, or
custodian of the child in custody.” Id. (d).
As for a police officer’s obligations, the Act’s limitations on
custodial interrogation do not apply when the officer “reasonably
believes that the information sought is necessary to protect against
a threat to public safety.” Id. (g)(1). Under those circumstances,
the officer “may conduct an otherwise lawful custodial
interrogation,” without first notifying the child’s parent, guardian,
or custodian, and without first allowing the child to consult with an
attorney, provided that “[t]he questions posed to the child by the
law enforcement officer are limited to those questions reasonably
necessary to obtain the information necessary to protect against the
threat to public safety.” Id. If an officer willfully fails to comply
with the statute, “[t]here is a rebuttable presumption that a
statement made by [the] child during a custodial interrogation is
inadmissible in a delinquency proceeding or a criminal prosecution
against that child,” but the State may overcome that presumption
by showing, “by clear and convincing evidence, that the statement
was made knowingly, intelligently, and voluntarily.” Id. (h).9
8
If an attorney is not retained by the parent, guardian, or custodian of
the child, an attorney will be provided by the Maryland Office of the
Public Defender. CJP § 3-8A-14.2(b)(1).
9
Before the statute’s enactment, if a child challenged the admissibility
of a confession, the State was required to show by only a preponderance
of the evidence that the statement was voluntary. See, e.g., Madrid v.
State, 474 Md. 273, 286, 310, 328 (2021).
10 [109 Op. Att’y
C. Implementation of the Statute and Post-Enactment
Criticism
To accommodate the new law, the Maryland Office of the
Public Defender has set up a 365-day, “24/7 hotline that . . .
answer[s] law enforcement any time they call” and has public
defenders available to “talk to children immediately over the
phone.” Briefing on the Juvenile Justice System Before the House
Judiciary Comm., at 3:15:24-3:15:36 (Sept. 13, 2023) (statement
of Jenny Egan, Chief of Juvenile Litigation for Baltimore City,
Maryland Office of the Public Defender). From October 1, 2022,
when the Child Interrogation Protection Act took effect, until
August 2023, the hotline received about 300 calls. Id. 3:18:48-
3:18:57. But, as of September 2023, the Office of the Public
Defender reported that some police departments had not used the
hotline at all. Id. 3:19:52-3:19:57. And the Office saw a “severe
drop” in the number of calls since “rhetoric in the press attacking”
the statute started “earlier in the summer” of 2023. Id. 3:19:58-
3:20:06. While the Office once received an average of twenty to
forty calls a month, calls dropped to less than twelve a month by
August 2023. Id. 3:20:07-3:20:16.
Those criticizing the statute include several state’s attorneys
and law enforcement officials, who have raised many of the same
concerns that arose before the law’s passage. For example,
Baltimore City State’s Attorney Ivan Bates has said that fewer
juvenile suspects are talking to police because public defenders are
“shutting it down.” Lee O. Sanderlin, Baltimore Police Violating
Child Interrogation Law as Prosecutors Seek to Repeal
Protections, Balt. Sun, Sept. 5, 2023. Likewise, Prince George’s
County State’s Attorney Aisha Braveboy has said that the law has
made “young people . . . less willing to provide critical information
to solve crimes.” Id.; see also Pamela Wood & Brenda Wintrode,
What We Learned from a State Hearing on Youth Crime, Balt.
Banner, Sept. 13, 2023 (quoting Acting Deputy Chief Zachary
O’Lare of the Prince George’s County Police Department as saying
that interrogations of children have been “severely curtailed”
because public defenders are advising minors not to talk to police).
But some prosecutors have also begun suggesting that the
Child Interrogation Protection Act might be unconstitutional. They
have raised two potential “avenue[s] of attack.” Briefing on the
Juvenile Justice System Before the House Judiciary Comm., at
4:23:45-4:24:47 (Sept. 13, 2023) (statement of Rich Gibson,
Howard County State’s Attorney and President of the Maryland
State’s Attorneys’ Association). First, they have suggested that the
Gen. 3] 11
statute might be unconstitutional because it requires a child to
consult with an attorney before police may subject the child to
custodial interrogation. According to Rich Gibson, the Howard
County State’s Attorney and President of the Maryland State’s
Attorneys’ Association, “the issue is they’re forced.” Id. at
4:49:54-4:49:59. In particular, State’s Attorney Gibson has said
that:
Most rights in laws and privileges are
waivable. The person has an ability to say I
choose to go forward or not. And, you know,
Gideon v. Wainwright,[10] gives public
defenders access if there’s an indigency issue.
You can afford your own attorney, you can
have a public defender appointed to you, or
you can do what’s called—you can go pro se
. . . which means you can go on your own.
You can just choose to go forward
representing yourself. And the way the [Child
Interrogation Protection Act] is structured, it
requires that that youth engage with a public
defender. And that requirement could be
deemed unconstitutional.
Id. at 4:14:43-4:15:21; see also id. at 4:09:05-4:09:18 (statement of
Baltimore City Deputy State’s Attorney Gregg Solomon-Lucas)
(“It’s not so much that children should not be allowed to have
representation by an attorney, the question is whether or not they
are able to waive that right that has been afforded to them.”);
Memorandum from Deputy Baltimore City State’s Attorney
Thomas M. Donnelly to Baltimore City State’s Attorney Ivan J.
Bates 1, 3 (Sept. 6, 2023) (“Donnelly Memo”) (arguing that “[t]he
right to the assistance of counsel carries with it the corresponding
right to waive or reject counsel,” and that the statute “has
unconstitutionally taken the right to have counsel and made it an
obligation,” “strip[ping] juveniles of the right to elect or to waive
counsel in a custodial setting”); cf. Briefing on the Juvenile Justice
10
In Gideon v. Wainwright, the United States Supreme Court held that
the right to counsel under the Sixth Amendment to the Constitution is a
“fundamental right” and, thus, that indigent defendants are entitled,
under Fourteenth Amendment due process, to appointed counsel in state
criminal prosecutions. 372 U.S. 335, 338-40, 342-43 (1963); see also
U.S. Const., Amend. VI (“In all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his defence.”);
id., Amend. XIV, § 1 (providing that no state “shall . . . deprive any
person or life, liberty, or property, without due process of law”).
12 [109 Op. Att’y
System Before the House Judiciary Comm., at 2:06:58-2:07:08
(Sept. 13, 2023) (statement of Zachary O’Lare, Acting Deputy
Chief, Prince George’s County Police Department) (“[E]ven when
there are cases of juveniles who are willing to speak with
investigators, they are unable to do so, as this law has removed their
ability to decide to do so.”).11
The second constitutional argument that prosecutors have
raised concerns parents’ rights. According to this argument, the
Child Interrogation Protection Act might be unconstitutional
because it does not permit parents to decide whether their children
should consult with an attorney, speak to police, or both, and thus
impermissibly forecloses “parents’ rights in governing their child.”
See Briefing on the Juvenile Justice System Before the House
Judiciary Comm., at 4:24:30-4:24:46 (Sept. 13, 2023) (statement
of Rich Gibson, Howard County State’s Attorney and President of
the Maryland State’s Attorneys’ Association); see also id. at
4:38:04-4:38:17 (statement of State’s Attorney Gibson that “[t]here
is a constitutional question about mandating that” a child “talk to a
public defender as opposed to giving them the ability, an agency
over themselves, and their families, their parents, to decide, you
know, ‘I wish to speak’” (emphasis added)); cf. at 2:07:18-2:07:29
(statement of Zachary O’Lare, Acting Deputy Chief, Prince
George’s County Police Department, that parents often “will want
their child to speak and face consequences for their actions” but
“[t]his law has taken away a parent’s ability to make that
decision”). But see id. at 4:54:52-4:54:58 (statement of State’s
Attorney Gibson) (“I don’t find that argument particularly
persuasive[.]”).
As best as we can tell, no prosecutors raised either of these
constitutional concerns before the statute was enacted.12 In light of
O’Lare testified on behalf of Maryland police chiefs and sheriffs.
11
Briefing on the Juvenile Justice System Before the House Judiciary
Comm., at 2:00:32-2:00:39 (Sept. 13, 2023).
12
Delegate Dan Cox raised a concern that the legislation “eviscerates
the Fourteenth Amendment due process for parental rights” because, in
his view, the law “mandat[es] that a parent may not discuss with their
child the waiver process of their Miranda rights” and does not allow a
child to speak to police “unless and until an attorney intervenes.” Voting
Session on S.B. 53 Before the House Judiciary Comm., 2022 Leg., Reg.
Sess., at 3:27-3:46, 4:47-5:13 (Mar. 29, 2022, Session No. 1) (statement
of Del. Cox). But having reviewed the legislative history, we have found
no other instances of anyone making that argument. Baltimore County
State’s Attorney Scott Shellenberger appeared to be the only prosecutor
Gen. 3] 13
these new arguments, you have asked for our opinion on the
constitutionality of the Child Interrogation Protection Act.
II
Analysis
A. Whether the Statute Is Unconstitutional Because It
Requires a Child to Consult with an Attorney Before
Custodial Interrogation
“[S]tatutes carry a strong presumption of constitutionality.”
Koshko v. Haining, 398 Md. 404, 426 (2007). Nonetheless, some
prosecutors have suggested that the Act is unconstitutional because
it requires that a child consult with an attorney before a police
officer may conduct a custodial interrogation of the child. CJP §
3-8A-14.2(b). This requirement is unconstitutional, the argument
goes, because a suspect not only has a constitutional right to the
assistance of counsel before and during custodial interrogation but
the right to proceed without the aid of an attorney. The statute is
thus unconstitutional, the argument continues, because it denies
children the right to choose to proceed without the assistance of
counsel. See, e.g., Donnelly Memo 1, 3.
As we explain below, we find this argument unpersuasive for
several reasons. As a preliminary matter, we are not aware of any
“right” to be subjected to custodial interrogation without the
assistance of counsel. The United States Supreme Court has said
that an individual has the right to the assistance of counsel before
and during custodial interrogation to protect the individual’s Fifth
Amendment privilege against self-incrimination. And although the
United States Supreme Court has recognized a right to self-
representation as part of the Sixth Amendment right to counsel in a
criminal trial, the Court has never suggested the same for the Fifth
Amendment right to counsel that applies in custodial
interrogations. Regardless, even if such a Fifth Amendment right
to self-representation existed, the Act does not in fact prevent a
child from answering police officers’ questions without the
to raise a constitutional challenge, but only to that portion of the law that
says that the Supreme Court of Maryland “may adopt rules concerning
age-appropriate language to be used to advise a child who is taken into
custody of the child’s rights.” CJP § 3-8A-14(e); see also Hearing on
S.B. 53 Before the Senate Judicial Proceedings Comm., 2022 Leg., Reg.
Sess. (Jan. 27, 2022) (written testimony of Baltimore County State’s
Attorney Scott Shellenberger that “the bill is constitutionally flawed in
that it allows for ‘simpler’ Miranda warnings”).
14 [109 Op. Att’y
presence or assistance of an attorney. We address each of these
points in turn.
1. The Right to Counsel at Custodial Interrogation
The federal and Maryland constitutions provide more than
one right to counsel. Two are most pertinent to the question before
us: The rights to counsel under the Sixth Amendment and under
the Fifth Amendment’s privilege against self-incrimination. The
Sixth Amendment to the United States Constitution13 (and its
Maryland analog, Article 21 of the Maryland Declaration of
Rights) provide that a defendant has the right to the assistance of
counsel for his defense “in all criminal prosecutions.”14 But this
right attaches only “at or after the time that judicial proceedings
have been initiated against” an individual “‘whether by way of
formal charge, preliminary hearing, indictment, information, or
arraignment.’” Brewer v. Williams, 430 U.S. 387, 398 (1977)
(quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality); see
also Moran v. Burbine, 475 U.S. 412, 429-30 (1986) (recognizing
that “the Sixth Amendment right to counsel initially attaches” at
“the first formal charging proceeding,” i.e., “only when the
government’s role shifts from investigation to accusation”).
The Fifth Amendment—and specifically, its privilege against
self-incrimination—is the source of the right to counsel in custodial
interrogation. E.g., Michigan v. Jackson, 475 U.S. 625, 629
(1986), overruled on other grounds, Montejo v. Louisiana, 556
U.S. 778 (2009); see also 3 Wayne R. LaFave et al., Criminal
Procedure § 11.7(a) n.9 (4th ed., Dec. 2023 update) (recognizing
that the right to counsel is “derivative” of the “right not to make a
statement during custodial interrogation”). In Miranda v. Arizona,
the United States Supreme Court “recognized that custodial
interrogations, by their very nature, generate ‘compelling pressures
which work to undermine the individual’s will to resist and to
13
As noted above, see note 10, the Sixth Amendment applies to states
through the Due Process Clause of the Fourteenth Amendment.
14
See U.S. Const., Amend. VI (“In all criminal prosecutions, the
accused shall enjoy the right . . . to have the Assistance of Counsel for
his defence.”); Md. Decl. Rights Art. 21 (“That in all criminal
prosecutions, every man hath a right . . . to be allowed counsel . . . .”).
A similar right to counsel also applies to juvenile delinquency
proceedings, which are not criminal, but that right derives from the Due
Process Clause of the Fourteenth Amendment. See In re Gault, 387 U.S.
1, 41 (1967); see also U.S. Const., Amend. XIV, § 1 (providing that no
state “shall . . . deprive any person of life, liberty, or property, without
due process of law”).
Gen. 3] 15
compel him to speak where he would not otherwise do so freely.’”
Moran, 475 U.S. at 420 (quoting Miranda, 384 U.S. at 467).
Because “[t]he circumstances surrounding in-custody interrogation
can operate very quickly to overbear [an individual’s] will,” the
Miranda Court concluded that the right to consult with counsel
before questioning, and to have counsel present at the interrogation,
“is indispensable to the protection of the Fifth Amendment
privilege.” Miranda, 384 U.S. at 469-70. This is because the
presence of counsel enables a suspect “to tell his story without fear,
effectively, and in a way that eliminates the evils in the
interrogation process,” “insur[ing] that statements made in the
government-established atmosphere are not the product of
compulsion.” Id. at 466. The right to counsel in custodial
interrogation, then, is a “prophylactic right[]” rooted in “the Fifth
Amendment guarantee that ‘[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.’” McNeil v.
Wisconsin, 501 U.S. 171, 176 (1991) (alterations in original)
(quoting U.S. Const., Amend. V).15
2. Protecting the Fifth Amendment Privilege Against Self-
Incrimination
“[T]o provide practical reinforcement for the right against
compulsory self-incrimination,” the Miranda Court “suggested
safeguards,” Michigan v. Tucker, 417 U.S. 433, 443-44 (1974),
namely, the so-called Miranda warnings discussed above, see
supra Part I.A. Before questioning a suspect in custody, police
must “fully apprise the suspect of the State’s intention to use [the
suspect’s] statements to secure a conviction, and must inform [the
suspect] of [their] rights to remain silent and to ‘have counsel
present . . . if [the suspect] so desires.’” Moran, 475 U.S. at 420
(quoting Miranda, 384 U.S. at 470). “Beyond this duty to inform,
Miranda requires that the police respect the accused’s decision to
exercise the rights outlined in the warnings.” Id. “If the individual
indicates in any manner, at any time prior to or during questioning,
that [they] wish[] to remain silent, the interrogation must cease.”
15
We acknowledge that, in Escobedo v. Illinois, 378 U.S. 478, 485-
91 (1964), decided two years before Miranda, the Supreme Court
indicated that the right to counsel in custodial interrogation was rooted
in the Sixth Amendment. But although Escobedo “was originally
decided as a Sixth Amendment case, ‘the Court in retrospect perceived
that the prime purpose of Escobedo was not to vindicate the
constitutional right to counsel as such, but, like Miranda, to guarantee
full effectuation of the privilege against self-incrimination[.]’” Moran,
475 U.S. at 429-30 (some internal quotation marks omitted) (quoting
Kirby, 406 U.S. at 689 (plurality)).
16 [109 Op. Att’y
Miranda, 384 U.S. at 473-74. Similarly, “[i]f the individual states
that [they] want[] an attorney, the interrogation must cease until an
attorney is present.” Id. at 474.
Importantly, the Supreme Court “made clear that the warnings
it required in Miranda are merely a threshold but not the only or
even the best way to protect the rights of the accused.” Kristin
Henning & Rebba Omer, Vulnerable and Valued: Protecting Youth
from the Perils of Custodial Interrogation, 52 Ariz. St. L.J. 883,
888-89 (2020) (citing Miranda, 384 U.S. at 467); see also Michael
C. Dorf & Charles F. Sabel, A Constitution of Democratic
Experimentalism, 98 Colum. L. Rev. 267, 403 (1998) (recognizing
that “the Court’s chosen standards” in Miranda “are understood to
be mere minima”); Brandon L. Garrett, Local Evidence in
Constitutional Interpretation, 104 Cornell L. Rev. 855, 894 (2019)
(noting that the Miranda decision “can be seen as setting a
constitutional floor above which jurisdictions are free to
experiment”).
Indeed, the Miranda Court acknowledged “potential
alternatives” for protecting a suspect’s Fifth Amendment rights and
emphasized that the Constitution does not “necessarily require[]
adherence to any particular solution for the inherent compulsions
of the interrogation process.” Miranda, 384 U.S. at 467; see also
id. at 476 (explaining that the warnings are required only “in the
absence of a fully effective equivalent”); id. at 479 (recognizing
that “other fully effective means” may be adopted); id. at 490(reiterating “that the Constitution does not require any specific
code of procedures for protecting the privilege against self-
incrimination during custodial interrogation” and “States are free
to develop their own safeguards”). Thus, while the Fifth
Amendment “requires procedures that will warn a suspect in
custody of his right to remain silent and which will assure the
suspect that the exercise of that right will be honored,” Dickerson
v. United States, 530 U.S. 428, 442 (2000) (citing Miranda, 384
U.S. at 467), it is “a matter of constitutional indifference what
procedural safeguards a state adopt[s]” to accomplish these goals,
Dorf & Sabel, supra, at 453. Rather than “creat[ing] a
constitutional straitjacket,” then, the Supreme Court has
“encourage[d] . . . the States to continue their laudable search for
increasingly effective ways of protecting the rights of the
individual while promoting efficient enforcement of our criminal
laws.” Miranda, 384 U.S. at 467.
Nearly half the states have done just that, “offer[ing] some
kind of increased protection” for juvenile suspects “above the
Gen. 3] 17
federal standard.” Maxwell J. Fabiszewski, Note, Major Reforms
for Minors’ Confessions: Rethinking Self-Incrimination
Protections for Juveniles, 61 B.C. L. Rev. 2643, 2683 (2020)16; see
also Hana M. Sahdev, Juvenile Miranda Waivers and Wrongful
Convictions, 20 U. Pa. J. Const. L. 1211, 1226 (2018) (recognizing
that “states may go further than what is federally required” to
protect a suspect’s Fifth Amendment privilege against self-
incrimination). By statute, state constitution, or common law, these
states:
• require a child to be represented by counsel
or, as in Maryland, consult with an attorney
before custodial interrogation,17
16
In addition to Maryland, we know of at least twenty-three states that
have heightened protections for children who are subject to custodial
interrogation and/or that restrict the government’s use of a child’s
statement in subsequent court proceedings: Arkansas, California,
Colorado, Connecticut, Hawaii, Illinois, Indiana, Iowa, Kansas,
Massachusetts, Mississippi, Missouri, Montana, New Jersey, New
Mexico, New York, North Carolina, Oklahoma, Texas, Utah, Vermont,
Washington, and West Virginia. See infra notes 17-24.
17
See Cal. Welf. & Inst. Code § 625.6(a) (requiring, before custodial
interrogation of a child 17 years or younger, that the child consult with
legal counsel, and providing that the consultation “may not be waived”);
Haw. Rev. Stat. Ann. § 571-31.8(a) (providing that, “[b]efore the waiver
of any right against self-incrimination by and before a custodial
interrogation of a child under eighteen years of age, the child shall have
contact with legal counsel in person, by telephone, or by video
conference,” and providing further that such “contact may not be
waived”); 705 Ill. Comp. Stat. Ann. § 405/5-170(a) (providing that a
minor suspected of certain serious crimes, such as murder or sexual
assault, “must be represented by counsel throughout the entire custodial
interrogation” if the minor was under 15 at the time of the crime); Iowa
Code Ann. § 232.11(1)(a) & (2) (providing that a child taken into custody
for an alleged delinquent act that constitutes a serious or aggravated
misdemeanor or a felony and is within the jurisdiction of the juvenile
court has a right to be represented by counsel, which a child under 16
may not waive without the written consent of a parent, guardian, or
custodian); Wash. Rev. Code Ann. § 13.40.740 (generally requiring
police to “provide a juvenile with access to an attorney for consultation
. . . before the juvenile waives any constitutional rights” and the police
subject the juvenile to custodial interrogation); W. Va. Code Ann. § 49-
4-701(l) (providing that an in-custody statement made by a child 13 or
younger is not admissible unless “made in the presence of the juvenile’s
counsel,” and a statement by a juvenile who is older than 13 but younger
than 16 is not admissible unless “made in the presence of the juvenile’s
18 [109 Op. Att’y
• allow a child to have a parent or guardian
present during custodial interrogation,18
• require the child to consult with an interested
adult, such as a parent, guardian, or attorney,
before custodial interrogation, or require the
presence of a parent, guardian, or attorney
during police questioning,19
• require a parent, guardian, or counsel to
consent to the waiver of a child’s
constitutional rights related to custodial
interrogation,20
• require a magistrate, rather than police, to
advise a child of their rights related to
custodial interrogation,21
• limit who can interrogate a child without a
judge’s authorization,22
• limit where and for how long police can
interrogate a juvenile,23 and/or
• otherwise restrict the government’s use of a
child’s statement to police in a subsequent
court proceeding against the child.24
counsel or made in the presence of, and with the consent of, the
juvenile’s parent or custodian,” provided that the parent or custodian has
been “fully informed regarding” the juvenile’s rights).
18
See Ark. Code Ann. § 9-27-317(i)(2)(C) & (D); Mo. Ann. Stat. §
211.059.1(3); Commonwealth v. Smith, 471 Mass. 161, 165-67 (2015);
N.C. Gen. Stat. Ann. § 7B-2101(a) & (a1); Utah Code Ann. § 80-6-
206(2) & (3).
19
See Colo. Rev. Stat. Ann. § 19-2.5-203(1); Conn. Gen. Stat. Ann. §
46b-137(a); Kan. Stat. Ann. § 38-2333(a); Smith, 471 Mass. at 165-67;
In re J.F., 286 N.J. Super. 89, 97-98 (App. Div. 1995); N.C. Gen. Stat.
Ann. § 7B-2101(b); Okla. Stat. Ann. tit. 10A, § 2-2-301(A); In re E.T.C.,
141 Vt. 375, 379 (1982).
20
See Ind. Code Ann. § 31-32-5-1; Mont. Code Ann. § 41-5-331.
21
See Tex. Fam. Code Ann. § 51.095.
22
See Miss. Code Ann. § 43-21-311(4).
23
See N.Y. Fam. Ct. Act § 305.2(4)(b).
24
See N.M. Stat. Ann. § 32A-2-14.
Gen. 3] 19
We are not aware of any appellate decisions or other
authorities calling into question the constitutionality of any of these
states’ rules, including those that require a child to consult with an
attorney before police may subject the child to custodial
interrogation. That is not surprising because, in “establishing
different standards” for juveniles, these states have applied “an
accepted legal principle” that minors often “hold a . . . protected
status in our legal system.” In re E.T.C., 141 Vt. 375, 378 (1982)
(quoting Lewis v. State, 259 Ind. 431, 437 (1972)). Indeed, the
United States Supreme Court has long “underscored the
vulnerability of juveniles facing interrogation and criminal
prosecution.” Restatement of the Law – Children and the Law §
14.22 cmt. b (Am. Law Inst., Tentative Draft No. 1, 2018); see also
Haley v. Ohio, 332 U.S. 596, 599 (1948) (plurality) (recognizing
that “a mere child—an easy victim of the law”—“cannot be judged
by the more exacting standards of maturity”); Gallegos v.
Colorado, 370 U.S. 49, 54 (1962) (noting that, “no matter how
sophisticated,” a juvenile suspect “cannot be compared” to an
adult); Eddings v. Oklahoma, 455 U.S. 104, 115-16 (1982) (“Our
history is replete with laws and judicial recognition that minors,
especially in their earlier years, generally are less mature and
responsible than adults.”); Roper v. Simmons, 543 U.S. 551, 569
(2005) (recognizing that “juveniles are more vulnerable or
susceptible to . . . outside pressures”); J.D.B., 564 U.S. at 272(recognizing that “a reasonable child subjected to police
questioning will sometimes feel pressured to submit when a
reasonable adult would feel free to go”).
Given the flexibility that Miranda grants states and the
Supreme Court’s recognition that “children characteristically lack
the capacity to exercise mature judgment,” J.D.B., 564 U.S. at 273,
we see no constitutional problem with the Child Interrogation
Protection Act’s requirement that, before police subject a child to
custodial interrogation, the child consult with an attorney. After
all, the Supreme Court itself has long recognized that a child “needs
counsel and support” if they are “not to become the victim first of
fear, then of panic” when questioned by police. Haley, 332 U.S. at
599-600 (plurality); see also Gallegos, 370 U.S. at 54 (recognizing
that a child could benefit from the counsel of “[a] lawyer or an adult
relative or friend” with “more mature judgment”).
To be sure, the Supreme Court has said that “the actual
presence of a lawyer” is not constitutionally required “to dispel the
coercion inherent in custodial interrogation.” Moran, 475 U.S. at
426 (noting that the Miranda Court declined to adopt this “more
extreme position”). But, as already noted, the Court has also made
20 [109 Op. Att’y
clear that “[n]othing . . . disables the States from adopting different
requirements for the conduct of its employees and officials as a
matter of state law.” Id. at 428; accord Stephen J. Schulhofer,
Miranda, Dickerson, and the Puzzling Persistence of Fifth
Amendment Exceptionalism, 99 Mich. L. Rev. 941, 955 (2001)
(characterizing the Miranda rules “as the constitutionally mandated
floor” with “ample room for steps to supplement the Miranda
system”). And the Miranda Court itself recognized that “[t]he
presence of counsel . . . would be the adequate protective device
necessary to make the process of police interrogation conform to
the dictates of the [Fifth Amendment] privilege.” Miranda, 384
U.S. at 466.
As we understand the argument raised by some prosecutors,
however, the concern is not with providing children the opportunity
to consult with an attorney before custodial interrogation but,
rather, the fact that the statute requires a consultation. See Briefing
on the Juvenile Justice System Before the House Judiciary Comm.,
at 4:49:54-4:49:59 (Sept. 13, 2023) (statement of Rich Gibson,
Howard County State’s Attorney and President of the Maryland
State’s Attorneys’ Association) (“The issue is they’re forced.”). It
appears that these prosecutors believe that suspects have not only a
constitutional right to the assistance of counsel during custodial
interrogation but a constitutional right to “self-representation”—
that is, the right to be questioned by police, while in custody,
without the assistance of counsel. See id. at 4:14:43-4:15:21
(State’s Attorney Gibson’s statement that the law allows someone
to retain an attorney, have one appointed, or “go on your own”);
see also Donnelly Memo 1-2 (arguing that “[t]he right to the
assistance of counsel carries with it the corresponding right to
waive or reject counsel,” and asserting that the Supreme Court has,
“[i]n the Sixth Amendment context,” “held that forcing counsel
upon a defendant” violates the Constitution). This argument
conflates two different rights to counsel and misapplies the United
States Supreme Court’s jurisprudence on self-representation at
trial.
3. The Right to Self-Representation
In Faretta v. California, the United States Supreme Court
concluded that individuals have a constitutional right to represent
themselves at a criminal trial. 422 U.S. 806, 818-19 (1975). This
right is found not in the Fifth Amendment, which gives rise to the
right to counsel at custodial interrogation but, rather, the Sixth
Amendment, which provides:
Gen. 3] 21
In all criminal prosecutions, the accused shall
enjoy the right . . . to be informed of the nature
and cause of the accusation; to be confronted
with the witnesses against him; to have
compulsory process for obtaining witnesses in
his favor, and to have the Assistance of
Counsel for his defence.
U.S. Const., Amend. VI; see Faretta, 422 U.S. at 818.
The Faretta Court concluded that the very “structure of the
Sixth Amendment” supports a right of self-representation, as the
Amendment “does not provide merely that a defense shall be made
for the accused” but “grants to the accused personally the right to
make [their] defense.” 422 U.S. at 818-19. The Court explained:
It is the accused, not counsel, who must be
“informed of the nature and cause of the
accusation,” who must be “confronted with
the witnesses against him,” and who must be
accorded “compulsory process for obtaining
witnesses in his favor.” Although not stated
in the Amendment in so many words, the right
to self-representation—to make one’s own
defense personally—is thus necessarily
implied by the structure of the Amendment.
Id. at 819 (footnote omitted). Relying also on early “English and
colonial jurisprudence,” id. at 818, the Court thus held that the
Sixth Amendment guarantees an individual “the right to defend
oneself at trial,” Martinez v. Court of Appeal, 528 U.S. 152, 154
(2000) (emphasis added).
As already noted, however, the right to counsel at custodial
interrogation derives from the Fifth Amendment’s privilege against
self-incrimination. See, e.g., Kevin Corr, Debunking the Myths: A
Compendium of Law Enforcement Misconceptions, 23 Am. J.
Crim. L. 121, 168 n.190 (1995) (recognizing that “[t]he Sixth
Amendment right to counsel and the Fifth Amendment right to
counsel” that applies to custodial interrogation “are not one and the
same”). Thus, a right to self-representation rooted in the history
and text of the Sixth Amendment lends no support to the notion that
22 [109 Op. Att’y
the Fifth Amendment right to counsel has a corresponding right to
self-representation during custodial interrogation.25
The mere fact that one can waive the Fifth Amendment right
to counsel does not mean that the individual has a corresponding
right to submit to custodial interrogation without an attorney’s
assistance. After all, “[t]he ability to waive a constitutional right
does not ordinarily carry with it the right to insist upon the opposite
of that right.” Singer v. United States, 380 U.S. 24, 34-35 (1965);
see also id. at 25-26 (rejecting the argument that the Sixth
Amendment, which grants a criminal defendant the right to a trial
by jury, provides a “correlative right to have [the] case decided by
a judge alone”). Indeed, with respect to the Sixth Amendment right
to counsel, the Faretta Court emphasized that the ability to waive
that right did not “mechanically” establish a right to self-
representation. 422 U.S. at 819 n.15. Rather, it was historical
practice and the text of the Sixth Amendment itself in which the
Court found a right to self-representation at trial. Id. at 818-20.
Although the Court has recognized a right of self-
representation corresponding to the Sixth Amendment right to
counsel, the Court has never suggested the same for the Fifth
Amendment right to counsel that applies in custodial
interrogations. And given the “difference between the Fifth
Amendment and Sixth Amendment rights to counsel, and the
policies behind these constitutional guarantees,” Patterson v.
Illinois, 487 U.S. 285, 297 (1988) (internal quotation marks
omitted), we can find no support for the notion that suspects have
a Fifth Amendment right to self-representation in custodial
interrogations. Cf. In re Darryl P., 211 Md. App. 112, 120-21
(2013) (recognizing the “vast difference between the influence on
25
We acknowledge that, at the time of a custodial interrogation, the
subject of police questioning may have been formally charged with a
crime and, thus, entitled to the protections of the Sixth Amendment. See,
e.g., Montejo v. Louisiana, 556 U.S. 778, 786 (2009) (recognizing that,
“once the adversary judicial process has been initiated, the Sixth
Amendment guarantees a defendant the right to have counsel present at
all ‘critical’ stages of the criminal proceedings,” including
“[i]nterrogation by the State”). But that does not establish a right to self-
representation at the interrogation. The Supreme Court has so far
recognized only the “right to defend oneself at trial,” Martinez, 528 U.S.
at 154, and we are aware of no court identifying a Sixth Amendment
right (or any other constitutional right) to self-representation at custodial
interrogation. Moreover, because “the Sixth Amendment right is
‘offense specific,’” questioning “unrelated to charged crimes” would not
implicate the Sixth Amendment. Kansas v. Ventris, 556 U.S. 586, 592
(2009) (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)).
Gen. 3] 23
confession law of the Sixth Amendment right to counsel, and the
Fifth Amendment privilege against compelled self-incrimination,”
and cautioning against the “constitutional chaos” that can result
when “a Sixth Amendment factor intrud[es] into a Fifth
Amendment analysis”); William J. Stuntz, Waiving Rights in
Criminal Procedure, 75 Va. L. Rev. 761, 827 (1989) (noting “the
formal distinction between the right to counsel in the station
house,” which is “ancillary to the [Fifth Amendment] privilege
against self-incrimination,” and the right to counsel at judicial
proceedings, which “derives directly from the sixth amendment”).
4. The Act Allows a Child to Submit to Custodial
Interrogation Without the Assistance of Counsel
Regardless, even if a right to self-representation applied to
custodial interrogation, nothing in the Act precludes a child from
submitting to police questioning without the presence of an
attorney.
With limited exception, the statute prohibits law enforcement
from conducting a custodial interrogation of a child unless the child
consults with an attorney before custodial interrogation. See CJP
§ 3-8A-14.2(b) (providing that “[a] law enforcement officer may
not conduct a custodial interrogation of a child until . . . [t]he child
has consulted with an attorney”). But the statute does not require
the attorney to be present during custodial interrogation. After
consulting with counsel, the child can still elect to waive their
Miranda rights and speak to police, with or without the assistance
of counsel. The Act simply seeks to ensure that a child does not
waive those rights without first talking to an attorney. See Voting
Session on S.B. 53 Before the House Judiciary Comm., 2022 Leg.,
Reg. Sess., at 20:01-20:06 (Mar. 28, 2022, Session No. 1)
(statement of Del. Bartlett); cf. Hillary B. Farber, The Role of the
Parent/Guardian in Juvenile Custodial Interrogations: Friend or
Foe?, 41 Am. Crim. L. Rev. 1277, 1304 (2004) (recognizing that
the purpose of requiring a consultation with an attorney is “to
insure an informed and rational choice by the juvenile” as to
whether to waive constitutional rights); see also Michelle Jeffs &
Sean Brian, Parental Presence or Totality of Circumstances? An
Assessment of Utah’s Juvenile Miranda Law & 50 State Survey, 24
N.Y.U. J. Legis. & Pub. Pol’y 565, 608 (2022) (asserting that
Miranda “was intended to ensure that people understand their
fundamental constitutional rights so that if and when they choose
to talk to law enforcement, the choice is made knowingly and
voluntarily”).
24 [109 Op. Att’y
To be sure, an attorney who speaks to a juvenile under § 3-
8A-14.2 may well advise the child to invoke the right to silence.
That, in fact, appears to be the reason some state’s attorneys oppose
the law. See Sanderlin, supra (quoting Prince George’s County
State’s Attorney Braveboy as saying that “young people are less
willing to provide critical information” to police under the law, and
quoting Baltimore City State’s Attorney Bates as saying that public
defenders are “shutting it down”). But the Fifth Amendment
privilege against self-incrimination “is a personal right, belonging
solely to the person who is himself incriminated.” Park v. Cangen
Corp., 416 Md. 505, 512 (2010). Thus, even if an “attorney has
instructed the investigating officers not to talk to” his client, the
client may waive his Miranda rights, “in spite of his attorney’s
advice to the contrary,” and speak to police. Marr v. State, 134
Md. App. 152, 173 (2000). Section 3-8A-14.2 does not change
that.26
That the Act imposes an additional step before a child can
waive their Miranda rights does not violate the Constitution. “[I]t
has long been accepted that the waiver of constitutional rights can
be subjected to reasonable procedural regulations.” Singer, 380
U.S. at 35. In fact, the United States Supreme Court itself has
imposed an additional safeguard to ensure that a waiver of the
Miranda right to counsel is voluntary, knowing, and intelligent:
Although the Court has “held that after initially being advised of
his Miranda rights, the accused may himself validly waive his
rights and respond to interrogation,” the Court has also held that
“when an accused has invoked his right to have counsel present,” a
26
It is also worth noting that, even if a suspect has invoked the right
to counsel under Miranda, the suspect may later waive that right. See
Edwards v. Arizona, 451 U.S. 477, 484 (1981) (finding no such waiver
but recognizing that a suspect who has invoked the right to the presence
of counsel during interrogation may later waive it if the suspect
“underst[ands] [the] right to counsel and intelligently and knowingly
relinquishe[s] it,” as evidenced by something more than merely
“respond[ing] to further police-initiated custodial interrogation”).
Indeed, even appointing counsel—rather than just requiring an
individual to consult with counsel before deciding whether to invoke the
right to assistance of counsel—does not prohibit that individual from
later waiving the right to assistance of counsel. See, e.g., Fowlkes v.
State, 311 Md. 586, 604 (1988) (recognizing, in the context of the right
to counsel at trial under the Sixth Amendment and Article 21, an indigent
defendant, after being appointed counsel, may waive the right to
assistance of counsel, if it is done knowingly, intelligently, and
voluntarily); Md. Rule 4-215 (governing appointment and discharge of
counsel and waiver of the right to assistance of counsel in criminal
proceedings).
Gen. 3] 25
subsequent “waiver of that right cannot be established by showing
only that he responds to further police-initiated custodial
interrogation even if he has been advised of his rights.” Edwards
v. Arizona, 451 U.S. 477, 484 (1981). “[H]aving expressed his
desire to deal with the police only through counsel,” the accused
“is not subject to further interrogation by the authorities until
counsel has been made available to him.” Id. at 484-85. Only then
may he validly waive the right to counsel. Id. at 485. This is
because “once a suspect indicates that ‘he is not capable of
undergoing [custodial] questioning without advice of counsel,’
‘any subsequent waiver that has come at the authorities’ behest, and
not at the suspect’s own instigation,[27] is itself the product of the
inherently compelling pressures and not the purely voluntary
choice of the suspect.’” Maryland v. Shatzer, 559 U.S. 98, 104-05
(2010) (brackets in original) (some internal quotation marks
omitted) (quoting Arizona v. Roberson, 486 U.S. 675, 681 (1988)).
A similar safeguard—that is, requiring a child to consult with an
attorney before invoking or waiving Miranda rights—is thus
consistent with Supreme Court precedent.
Finally, we think it worth noting that, even where the
Supreme Court has recognized a right to self-representation (at a
criminal trial), the Court has also found that having an attorney
present at trial to advise the defendant does not necessarily violate
that right. Thus, when a defendant invokes their right to self-
representation at trial, the court may, “over the defendant’s
objection,” appoint standby counsel to assist the defendant with
such tasks as “introducing evidence,” “objecting to testimony,” or
complying “with basic rules of courtroom protocol and procedure.”
McKaskle v. Wiggins, 465 U.S. 168, 183-84 (1984). If such
participation by counsel during trial does not infringe on one’s right
to self-representation at trial, it is hard to see how requiring a
consultation with an attorney before custodial interrogation could
infringe on any hypothetical right to self-representation at that
interrogation—especially given that, after the consultation, the
child can decide whether to invoke the rights of silence or counsel
27
If “the accused himself initiates further communications,
exchanges, or conversations with police,” the Miranda protections do
not apply, Edwards, 451 U.S. at 485, as the Fifth Amendment is
concerned only with coerced confessions, not “[v]olunteered
statements,” Miranda, 384 U.S. at 478 (recognizing that “[t]here is no
requirement that police stop a person who enters a police station and
states that he wishes to confess to a crime, or a person who calls the
police to offer a confession or any other statement he desires to make”
(footnote omitted)).
26 [109 Op. Att’y
or agree to answer police officers’ questions without the assistance
of counsel.
5. Summary
We find no merit to the argument that the Child Interrogation
Protection Act violates a constitutional right of children by
requiring them to consult with an attorney before police may
subject them to custodial interrogation. We are not aware of any
“right” to submit to custodial interrogation without the assistance
of counsel. Although the United States Supreme Court has
recognized a right of self-representation corresponding to the Sixth
Amendment right to counsel in a criminal trial, the Court has never
suggested the same for the Fifth Amendment right to counsel that
applies in custodial interrogations. Regardless, even if such a Fifth
Amendment right of self-representation existed, the Act does not
prevent a child from answering police officers’ questions without
the presence or assistance of an attorney. We thus conclude that
the Act’s attorney-consultation requirement does not infringe any
constitutional rights of children.
B. Whether the Statute Impermissibly Infringes on Parental
Rights
We turn now to the second argument that has been raised for
why the Child Interrogation Protection Act might be
unconstitutional. As we understand it, this argument is that the
statute impermissibly infringes on a parent’s constitutional right to
control their child by not permitting the parent to decide whether
their children should consult with an attorney or speak to police.
Briefing on the Juvenile Justice System Before the House Judiciary
Comm., at 4:24:30-4:24:46, 4:38:04-4:38:17 (Sept. 13, 2023)
(statements of Rich Gibson, Howard County State’s Attorney and
President of the Maryland State’s Attorneys’ Association).; cf. at
2:07:18-2:07:29 (statement of Zachary O’Lare, Acting Deputy
Chief, Prince George’s County Police Department). We find no
merit in this argument either.
To be sure, the United States Supreme Court has long
recognized that the Fourteenth Amendment protects the
“fundamental liberty interest[]” of “parents in the care, custody,
and control of their children.” Troxel v. Granville, 530 U.S. 57, 65
Gen. 3] 27
(2000) (plurality).28 Consistent with this constitutional right,
parents enjoy broad decision-making powers about such matters as
their children’s education and religious upbringing29 and who may
spend time with their children.30
But “[c]onstitutional rights do not mature and come into being
magically only when one attains the state-defined age of majority.”
Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 74
(1976). “Minors, as well as adults, are protected by the
Constitution and possess constitutional rights,” id., and “[p]arental
rights are far from absolute,” 1 William J. Rich, Modern
Constitutional Law § 15:3 (3rd ed., Nov. 2023 update); see also
Gonzalez v. Reno, 212 F.3d 1338, 1352 n.20 (11th Cir. 2000)
(recognizing that “parental authority over children . . . is not
without limits in this country”); Francis Barry McCarthy, The
Confused Constitutional Status and Meaning of Parental Rights,
22 Ga. L. Rev. 975, 977-78 (1988) (noting that “many forms of
state regulation of the parent-child relationship”—such as
compulsory school attendance, vaccination, and child labor—“are
by now so common that they are no longer even questioned”
despite “limit[ing] parental choices”).
28
The Fourteenth Amendment, which provides that no State shall
“deprive any person of life, liberty, or property, without due process of
law,” U.S. Const., Amend. XIV, § 1, “includes a substantive component
that ‘provides heightened protection against government interference
with certain fundamental rights and liberty interests,’” Troxel, 530 U.S.
at 65 (plurality) (quoting Washington v. Glucksberg, 521 U.S. 702, 720
(1997)).
29
See Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923) (holding that
a state law banning the teaching of German in public schools was
unconstitutional because it materially interfered with, among other
things “the power of parents to control the education of their own”);
Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (recognizing
parents’ constitutional right to provide private or religious education to
their children rather than using public schools); Wisconsin v. Yoder, 406
U.S. 205, 219-34 (1972) (holding that a state impermissibly interfered
with a combination of religious and parental interests when it tried to
compel Amish parents to send their children to school after the eighth
grade).
30
See Troxel, 530 U.S. at 67, 72-73 (plurality); id. at 76-77 (Souter,
J., concurring in the judgment); id. at 80 (Thomas, J., concurring in the
judgment) (agreeing that a state statute that allowed any person to
petition a court for visitation rights, and the court to grant those rights if
in “the best interest of the child,” unconstitutionally infringed on parents’
fundamental liberty interest).
28 [109 Op. Att’y
In situations involving a child’s individual liberties—such as
a minor’s “substantial liberty interest in not being confined
unnecessarily for medical treatment”31 or the right to make
decisions about the use of contraception—parents’ rights often
yield to the child’s constitutional rights. See Parham v. J.R., 442
U.S. 584, 604 (1979) (recognizing that “the child’s rights and the
nature of the commitment decision are such that parents cannot
always have absolute and unreviewable discretion to decide
whether to have a child institutionalized”); Anspach ex rel.
Anspach v. City of Philadelphia, 503 F.3d 256, 269 (3d Cir. 2007)
(finding no constitutional right to parental notification when a
minor child seeks to obtain contraception); Doe v. Irwin, 615 F.2d
1162, 1167-69 (6th Cir. 1980) (same).32
Such is the case with custodial interrogations of juveniles.
Although the United States Supreme Court has not specifically
been presented with the question of whether parents have control
over their children’s invocation of constitutional protections during
custodial interrogations, the Court, in defining how police and
courts should treat children suspected or accused of committing
crimes, has focused “largely on the due process rights to which
juveniles are entitled and said very little about the . . . rights of their
parents.” Margareth Etienne, Managing Parents: Navigating
Parental Rights in Juvenile Cases, 50 Conn. L. Rev. 61, 68 (2018).
For example, in In re Gault, 387 U.S. 1, 30-55 (1967), the
Court held that juvenile delinquency proceedings—although not
technically “criminal” in nature—must nonetheless provide many
of the same due process protections, including adequate notice of
31
Parham v. J.R., 442 U.S. 584, 600 (1979).
We acknowledge that, in Dobbs v. Jackson Women’s Health
32
Organization, 597 U.S. 215, 231 (2022), the United States Supreme
Court overruled Roe v. Wade, 410 U.S. 113 (1973), and Planned
Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833(1992), and held that the Constitution does not provide a right to
abortion. But the Dobbs Court made clear that its decision does not
upend its earlier rulings on an individual’s constitutional right to access
contraception. See Dobbs, 597 U.S. at 262, 295 (asserting that “rights
regarding contraception” are “different from the right to abortion,” and
referencing the “unfounded fear” that the Dobbs decision “will imperil”
the constitutional right to contraception); see also Carey v. Population
Servs. Int’l, 431 U.S. 678, 693-94 (1977) (plurality) (recognizing that
“the right to privacy in connection with decisions affecting procreation
extends to minors as well as to adults,” and concluding that “the
constitutionality of a blanket prohibition of the distribution of
contraceptives to minors is a fortiori foreclosed”).
Gen. 3] 29
charges, the right to counsel, and the privilege against self-
incrimination. The Court further concluded that the government
had failed to satisfy these constitutional standards with respect to a
15-year-old boy who had been found delinquent for making a lewd
phone call and committed to an industrial school, potentially for up
to six years. Id. at 4-8.
But while the Court resolved the case on the ground that
“children have procedural constitutional rights that parallel, in
kind, if not degree, the rights of adults,” the Court “could have
achieved the same result” by holding that “the boys’ parents’ rights
were violated by an adjudication process that rendered it
impossible for them to adequately protect or make decisions for
their child.” Etienne, supra, at 67-68. Indeed, the case was
“positioned to be the jurisprudential inheritor of . . . the
development of substantive due process rights, particularly as
applied to parents’ authority over their children.” Id. at 68.
Authorities arrested the boy while his parents were at work and left
no notice that he had been taken into custody. In re Gault, 387 U.S.
at 5. When the government filed a petition of delinquency, on the
same day as the hearing, no one served a copy on the parents. Id.At the hearing, the judge took the matter under advisement; the
juvenile’s mother learned of a subsequent hearing only from an
officer’s informal note. Id. at 6. Even though the parents asserted
that these facts violated their own constitutional rights, see id. at
32-34, the Supreme Court “provided no robust analysis of what [a]
parent’s decision-making rights in the juvenile justice process
ought to be,” Etienne, supra, at 69. To be sure, the Court required
“soft rights for parents, such as notice of charges and proceedings.”
Id.; see also In re Gault, 387 U.S. at 33-34. But the Court “treated
the[se] parental rights as a collateral and secondary function of the
accused juvenile’s rights.” Etienne, supra, at 66, 68.
Since then, the Supreme Court’s juvenile interrogation cases
have continued to focus on the principles established in Miranda
and on protecting juvenile suspects’ constitutional rights rather
than those of their parents. In one case, for example, the Court held
that a juvenile subject to custodial interrogation did not invoke his
Fifth Amendment rights when he asked to see his probation officer
rather than a lawyer. Fare v. Michael C., 442 U.S. 707, 709, 727-
28 (1979). In so holding, the Court reiterated the reasoning of
Miranda, “the unique role the lawyer plays in the adversary system
of criminal justice,” and the need to consider the totality of the
circumstances in determining whether a suspect has invoked or
waived any Miranda rights. Id. at 717-25. The Court
acknowledged that “the age and experience of a juvenile” could be
30 [109 Op. Att’y
relevant factors indicating that “his request for his probation officer
or his parents, is, in fact, an invocation of his right to remain silent.”
Id. at 725. But the Court did not otherwise address the parent-child
relationship or consider whether parental rights play a role in the
custodial interrogation of children. Similarly, in another case, the
Court reaffirmed that juveniles enjoy Miranda rights and
acknowledged that a child’s age could play a role in determining
whether the child is “in custody” and, thus, entitled to Miranda’s
protections. J.D.B., 564 U.S. at 269-72. But the Court made no
mention of parents’ rights with respect to the custodial
interrogation of a child. Although these cases did not squarely
present the question of whether a parent has the constitutional right
to make decisions related to their child’s custodial interrogation,
the absence of any indication that parents have such a right is, at
the very least, conspicuous.
That the Court has focused exclusively on the child’s
individual liberty interest is not surprising, given that “[o]ne’s
decision to waive the right to remain silent can be the watershed
moment in cinching a conviction or exposing oneself to
prosecution for more serious offenses.” Farber, supra, at 1301. “It
is the child who stands to lose his personal freedom . . . and it is he,
not his parents, who possesses the right to remain silent.” Martin
Guggenheim, The Right to Be Represented But Not Heard:
Reflections on Legal Representation for Children, 59 N.Y.U. L.
Rev. 76, 89-90 (1984). In addition, “[p]arents and juveniles
sometimes have conflicting interests,” Jennifer Alberts,
Interrogation of Juveniles: Are Parents the Best Defenders of
Juveniles’ Right to Remain Silent?, 19 New Crim. L. Rev. 109, 110
(2016), and the cases in which the Court has found violations of
parents’ rights, such as Meyer, Pierce, and Yoder, have “involve[d]
no conflict between parent and child,” Lee E. Teitelbaum & James
W. Ellis, The Liberty Interest of Children: Due Process Rights and
Their Application, 12 Fam. L.Q. 153, 170 (1978).
In any event, we are not aware of any authority “to support
the proposition that the personal rights guaranteed by . . . the Fifth
Amendment to the United States Constitution may be effectively
invoked (or waived) by anyone other than the individual holding
those rights, even if that individual is a juvenile.” State ex rel.
Juvenile Dep’t of Lincoln County v. Cook, 138 Or. App. 401, 407
(1996) (rejecting an argument that a child’s mother could invoke
the child’s right to counsel at interrogation), aff’d on other grounds,
325 Or. 1 (1997). Indeed, at least as a constitutional matter, it
appears that “police can question children without parental
presence or notification.” Note, Juvenile Miranda Waiver and
Gen. 3] 31
Parental Rights, 126 Harv. L. Rev. 2359, 2372 (2013); see also
Etienne, supra, at 82 (asserting that “[p]arents do not have a
constitutional right to be present during the police interrogation of
their children”); Farber, supra, at 1290 (recognizing that
“parental/guardian presence is not mandated”).33 Thus, we find no
merit to the argument that the Child Interrogation Protection Act
violates a parent’s constitutional right in the care, control, and
custody of their child.
III
Conclusion
It is our opinion that the Child Interrogation Protection Act’s
attorney-consultation requirement does not violate any
constitutional rights of children or their parents.
Anthony G. Brown
Attorney General of Maryland
Rachel A. Simmonsen
Assistant Attorney General
Patrick B. Hughes
Chief Counsel, Opinions and Advice
33
The statute here nonetheless requires police to “ma[k]e an effort
reasonably calculated to give actual notice to the parent . . . of the child
that the child will be interrogated.” CJP § 3-8A-14.2(b)(2).