We Do Have a Law That’s Related to Rules of Evidence
Video Transcribed: Is It Legal to Question a Minor Without a Parent Present in Oklahoma? I’m an attorney in Oklahoma James Wirth and that’s the question that we have today is, if law enforcement is doing an investigation, have a suspect that is a minor, are they allowed to question that person without having a parent or guardian present? And there are a couple of different ways to look at that.
First off, we do have a law that’s related to rules of evidence. So what it provides, and it’s a Title 10A Section 2-2-301, and the part that we’re talking about is in Subsection A.
And what it says that “No information gained from a custodial interrogation of a youthful offender under 16 years of age or a child, nor any evidence subsequently obtained as a result of such interrogation shall be admissible into evidence against the youthful offender or child unless parent or guardian essentially are present for that interrogation.” Okay?
So this is not the same as a prohibition though. It doesn’t say that it’s a crime to interrogate the child. It says that if you do interrogate the child without a parent or guardian present, that it’s not admissible in court to be used against the child. Also, this statute has an exclusion specifically for school employees, principal teachers, things like that, where they can question unless they’re doing so on behalf of law enforcement.
So can they do that? They can under the right circumstances, but it may be that it’s not allowed into evidence, and it is a problem that we do see this happening.
And there is a very unfortunate new published case, which really undermines what the statute says because in that case, they essentially ruled that if the child is being questioned for a serious offense, even if they’re not charged with that offense and are charged with a different offense, that evidence can come in and still be used to convict them on that other offense. So that is problematic. It does undermine this.
Also, doesn’t apply to all questioning. This only applies to custodial interrogations. So we see this a lot when law enforcement doesn’t want to implicate certain fourth amendment rights, they’ll call it a consensual encounter and consensual talk. So particularly we see it with OHP. They’ve got a traffic stop.
They write a citation or a ticket, whatever the case is. They tell them they’re free to go. And then right after they tell them they’re free to go, they go, “Hey, would you mind answering a few questions for me?” And then they start going through their questions.
They do that specifically so that you can’t say that it is a custodial interrogation because they just told you that you’re free to go, but by the way that they say, “Hey, can I ask you some more questions?” It sure seems like you’re not free to go. Nonetheless, the law has approved that, so that’s the method that is routinely and systematically used by OHP in order to question people, but not implicates Fourth Amendment rights there.
The other thing is if they’re questioning you, but it’s not a question specifically intended to bring about an incriminating response, then Miranda would not be applicable. This may not be applicable as well. So there are limitations to it. It is only an evidentiary rule about what gets into evidence.
It’s not a prohibition that makes it a crime to question. So hopefully that sheds some light on the question, although it’s not clear cut because of the way the law is here, where it is a rule of evidence and not a criminal law that prohibits it.
But if you’ve got questions about a specific scenario, I hope I can provide more insight for you. If you’d like to get something scheduled in my office on that, you want to talk confidentially, get that scheduled by going online to makelaweasy.com.
