Can A Minor Be Questioned by the Police Without a Lawyer or Parent Present?

Police-Interrogation-300x200I recently met with a client whose son had been questioned by the police at the police station and charged with a Retail Theft. The client was complaining that the police questioned her son at the police station without providing a lawyer for him and without allowing her to be present with her son. She wanted to know whether the police could question her son without her being present. Here’s what I told her:

What is Considered a Minor in the Criminal Justice System?

As with many other things, the criminal justice system has different definitions for common terms than most people realize. For instance, what is considered insane by the medical profession is different than what the criminal law defines as insane. The same applies to what is commonly considered to be a minor and what is commonly considered to be an adult. In the real world, 18 years old is the cut-off between being a minor and being an adult. But under the criminal law, whether you are treated as a juvenile, or minor, or an adult, depends on whether you are being charged with a felony or a misdemeanor. If you are being charged with a misdemeanor, you will be considered an adult if you were 17 years or older when the offense occurred. For felony offenses, you will be considered an adult if the offense occurred when you were 16 years or older.

How Long Can the Police Hold a Minor at the Police Station?

Just like with any criminal suspect, the police can arrest a minor if they suspect that they committed a crime and can take them down to the station for investigation. Questioning may end up being part of the investigation. However, the police only have a certain amount of time before they must either charge the minor with a crime or release them. How much time they have depends on the age of the minor child. If the child is under the age of 12, the police can only hold the minor in the police station for up to 6 hours. If the minor is between the ages of 12 and 16, the police can only hold the minor child at the police station for up to 12 hours if the crime that is being investigated is a non-violent offense. If the crime that is being investigated is a violent offense, the police can hold the minor for questioning and investigation for up to 24 hours.

Can the Police Question a Minor Without a Parent or Lawyer Present?

Generally yes. However, the answer may change depending on the age of the minor and what they are being charged with.

Several years ago, news organizations released several reports concerning false confessions by juveniles. These reports spurred a national discussion surrounding the issue of minors making confessions to the police. The Illinois Legislature took up the issue and passed several measures which took only modest steps towards reforming the way minors are questioned and interrogated by the police in Illinois. In August of 2016, the new measures were signed into law. Under the new law, the police have certain limitations when it comes to the questioning and interrogation of minors.

-If the police want to question a minor who is 15 years old or younger, and they are being charged with a murder or a sex offense, an attorney must be present.

-If a minor, under the age of 18, is being questioned for any crime, they must be read a simplified version of their Miranda rights. They must be specifically asked if they want to have a lawyer present for questioning and whether they want to talk to the police officer. The goal behind this requirement is to make sure that the minor child truly understands what they are doing by talking to the police.

-If the minor is being questioned or interrogated for any felony and they are under the age of 18, the police must videotape the interrogation. This also applies to all misdemeanor sex cases. If the statement is not videotaped, it will not be admissible in court.

As you can tell, nothing in the law talks about parents. The only reference to parents is that Illinois law does require that the police make a “reasonable attempt” to contact a parent or a legal guardian before interrogating a minor. It is unclear what the sanction would be if the police did not make a “reasonable attempt” to contact a parent before interrogating a minor child. The law leaves open what would be considered a “reasonable attempt”.

While the Illinois legislature did take steps to address the problem of interrogations of minors, the legislature could have done much more.

James Dimeas is a nationally-recognized, award-winning, criminal defense attorney. Recently, the American Society of Legal Advocates named James Dimeas a “Top 100 Criminal Defense Lawyer In the State of Illinois for the Year 2018.” James Dimeas has been named a “Best Criminal Defense Lawyer in Chicago” by Expertise and a “Best DUI Attorney.” The American Institute of Criminal Law Attorneys have named James Dimeas a “10 Best Attorney for Client Satisfaction.” The National Trial Lawyers have named James Dimeas a “Top 100 Criminal Defense Trial Lawyer.” AVVO rates James Dimeas as “Superb”, the highest rating possible for any criminal defense attorney in the United States.

If you are facing criminal charges, you can contact James Dimeas anytime for a free and confidential consultation. You can always talk to James Dimeas by calling him at 847-807-7405.

Additional Resources:

Juveniles in Police Custody to Get More Legal Protections in Illinois, by Melissa Sanchez, Chicago Reporter, August 2, 2016.

705 ILCS 405/5-405.1, When Statement By Minor May Be Used

Additional Blogs:

Will I Be Charged with a Domestic Battery if I Slap My Child, by James G. Dimeas, Chicago Criminal Lawyer Blog, August 25, 2017.

What Happens If You Are Arrested, by James G. Dimeas, Chicago Criminal Lawyer Blog, April 3, 2018.