Bill Text: OH HB597 | 2011-2012 | 129th General Assembly | Introduced
Bill Title: To protect the rights of children before and during custodial interrogations.
Spectrum: Moderate Partisan Bill (Democrat 8-2)
Status: (Introduced - Dead) 2012-10-10 - To Judiciary & Ethics [HB597 Detail]
Download: Ohio-2011-HB597-Introduced.html
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Representatives Heard, McGregor
Cosponsors:
Representatives Foley, Ramos, Fedor, Murray, Antonio, Yuko, Reece, Huffman
| To enact section 2152.05 of the Revised Code to | 1 |
| protect the rights of children before and during | 2 |
| custodial interrogations. | 3 |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
| Section 1. That section 2152.05 of the Revised Code be | 4 |
| enacted to read as follows: | 5 |
| Sec. 2152.05. (A) As used in this section: | 6 |
| (1) "Child" means any unemancipated person under the age of | 7 |
| eighteen, notwithstanding the definition of "child" in section | 8 |
| 2152.02 of the Revised Code. | 9 |
| (2) "Custodial interrogation" means the questioning of a | 10 |
| child about an act that was allegedly committed by the child and | 11 |
| that would be a criminal offense if committed by an adult, which | 12 |
| questioning occurs while that child is in law enforcement custody | 13 |
| or is being deprived of freedom of action in any significant way | 14 |
| by a law enforcement officer, a court employee, or an employee of | 15 |
| the department of youth services. "Custodial interrogation" does | 16 |
| not include questioning of a child by a public school | 17 |
| administrator or teacher if the questioning is not conducted on | 18 |
| behalf of a law enforcement officer, a court employee, or an | 19 |
| employee of the department of youth services. | 20 |
| (B) Before a child is questioned about anything concerning a | 21 |
| charge that the child allegedly committed an act that would be a | 22 |
| criminal offense if committed by an adult and on which the child | 23 |
| was taken into custody or deprived of freedom of action in any | 24 |
| significant way by a law enforcement officer, a court employee, or | 25 |
| an employee of the department of youth services, the person asking | 26 |
| the questions shall inform the child, in the child's own language, | 27 |
| of the following rights: | 28 |
| (1) That the child has the right to an attorney; | 29 |
| (2) That if the child is unable to pay for an attorney and if | 30 |
| the parent, legal guardian, or legal custodian of the child has | 31 |
| not provided an attorney, one will be appointed; | 32 |
| (3) That the child is not required to say anything and that | 33 |
| anything the child says may be used against the child; | 34 |
| (4) That the child has a right to communicate with the | 35 |
| child's parent, legal guardian, or legal custodian, whether or not | 36 |
| that person is present and that, if necessary, reasonable means | 37 |
| will be provided for the child to do so; | 38 |
| (5) That even if the child's attorney is not present or has | 39 |
| not yet been appointed, the child has the right to communicate | 40 |
| with the child's attorney and that, if necessary, reasonable means | 41 |
| will be provided for the child to do so. | 42 |
| (C) No person shall question a child who has been taken into | 43 |
| custody or deprived of freedom of action in any significant way by | 44 |
| a law enforcement officer, a court employee, or an employee of the | 45 |
| department of youth services for an act that would be a criminal | 46 |
| offense if committed by an adult if the child has indicated in any | 47 |
| manner any of the following: | 48 |
| (1) That the child does not wish to be questioned; | 49 |
| (2) That the child wishes to speak with the child's custodial | 50 |
| parent, guardian, or custodian or to have that person present; | 51 |
| (3) That the child wishes to consult an attorney before | 52 |
| submitting to any questioning. | 53 |
| (D)(1) A child who is alleged to have committed an act that | 54 |
| is a violation of section 2903.01, 2903.02, 2903.04, 2904.041, | 55 |
| 2907.02, 2907.03, 2907.05, or 2907.06 of the Revised Code shall be | 56 |
| represented by an attorney during the entire period of any | 57 |
| custodial interrogation of the child. The child may not waive this | 58 |
| right to counsel. | 59 |
| (2) No admission or confession resulting from a custodial | 60 |
| interrogation of a child may be admitted into evidence against the | 61 |
| child unless the confession or admission was made in the presence | 62 |
| of the child's parent, guardian, custodian, or attorney. If an | 63 |
| attorney was not present, no such admission or confession may be | 64 |
| admitted into evidence against the child unless the parent, | 65 |
| guardian, or custodian as well as the child was advised of the | 66 |
| child's rights set forth in division (B) of this section. A | 67 |
| parent, guardian, or custodian of a child may not waive any right | 68 |
| on behalf of the child. | 69 |
| (E)(1) If a child waives any of the rights set forth in | 70 |
| division (B) of this section, a court may admit into evidence | 71 |
| against the child any statement made by the child during a | 72 |
| custodial interrogation if the court finds that the child | 73 |
| knowingly, willingly, and understandingly waived the child's | 74 |
| rights. In determining whether a child knowingly and voluntarily | 75 |
| waived any of the child's rights, the court shall consider all of | 76 |
| the circumstances of the waiver, including the following: | 77 |
| (a) The child's physical, mental, and emotional maturity; | 78 |
| (b) Whether the child or the child's parent, guardian, | 79 |
| custodian, or attorney understood the consequences of the child's | 80 |
| statement; | 81 |
| (c) Whether the child and the child's parent, guardian, or | 82 |
| custodian had been informed of the act with which the child was | 83 |
| charged or of which the child was suspected; | 84 |
| (d) The length of time the child was held in custody before | 85 |
| consulting with the child's parent, guardian, or custodian; | 86 |
| (e) Whether there was any coercion, force, or inducement used | 87 |
| in obtaining the statement; | 88 |
| (f) Whether the child and the child's parent, guardian, or | 89 |
| custodian had been advised of the child's right to remain silent | 90 |
| and to the appointment of counsel. | 91 |
| (2) Any information gained from noncustodial questioning of a | 92 |
| child by a public school administrator or teacher concerning a | 93 |
| wrongful act committed on public school property shall be | 94 |
| admissible into evidence against the child. | 95 |
| (3) When a parent is the alleged victim or alleged | 96 |
| codefendant of an act of a child that would be a criminal offense | 97 |
| if committed by an adult, no admission or confession of the child | 98 |
| resulting from a custodial investigation may be admitted into | 99 |
| evidence unless the child made the admission or confession | 100 |
| following a consultation between the child and an attorney or a | 101 |
| parent who is not involved in the investigation of the act as to | 102 |
| whether the child will waive the right to an attorney and the | 103 |
| right against self-incrimination. The law enforcement agency that | 104 |
| has taken the child into custody or the facility to which the | 105 |
| child has been delivered shall immediately make reasonable efforts | 106 |
| to contact a parent who is not involved in the investigation of | 107 |
| the act. | 108 |
| (F)(1) Subject to division (F)(2) of this section, a law | 109 |
| enforcement agency shall make an audio or audio and visual | 110 |
| recording of any custodial interrogation of a child that is | 111 |
| conducted at a place of detention and, if feasible, shall make an | 112 |
| audio or audio and visual recording of any custodial interrogation | 113 |
| of a child that is conducted at a place other than a place of | 114 |
| detention. | 115 |
| (2) A law enforcement agency is not required to make an audio | 116 |
| or audio and visual recording of a custodial interrogation of a | 117 |
| child if any of the following applies: | 118 |
| (a) The child refuses to respond or cooperate in the | 119 |
| custodial interrogation, and a law enforcement officer or agent of | 120 |
| a law enforcement agency made a contemporaneous audio or audio and | 121 |
| visual recording or written record of the child's refusal. | 122 |
| (b) The child made the statement in response to a question | 123 |
| asked as part of the routine processing after the child was taken | 124 |
| into custody. | 125 |
| (c) The law enforcement officer or agent of a law enforcement | 126 |
| agency conducting the interrogation in good faith failed to make | 127 |
| an audio or audio and visual recording of the interrogation, | 128 |
| because the recording equipment did not function, the officer or | 129 |
| agent inadvertently failed to operate the equipment properly, or | 130 |
| the equipment malfunctioned or stopped operating without the | 131 |
| officer's or agent's knowledge. | 132 |
| (d) The child made the statement spontaneously and not in | 133 |
| response to a question by a law enforcement officer or agent of a | 134 |
| law enforcement agency. | 135 |
| (e) Exigent public safety circumstances existed that | 136 |
| prevented the making of an audio or audio and visual recording or | 137 |
| rendered the making of such a recording infeasible. | 138 |
