Are "kids" protected by the fifth amendment?

[jhunter1163]

Yeah, I got the same from the article. The interesting "next step" is what would have happened to the kid who says "I didn't 'opt out' but I'm not answering these questions." That would bring the issue into greater focus.

Or what happens to the kid that admits smoking weed. Would he get "counseling" or would the cops show up at his house with a warrant to look for weed?

 

[iangoeswest]

Thanks, Ian, for the legal perspective. I was working from a much simpler sort of anecdotal perspective of one of the points you mentioned: If a minor can be charged as an adult in many jurisdictions, how could you even think of not having the protections of the 5th available to them?

Absolutely! The issue then is what are the "protections of the 5th Amendment?" (I'm only talking about the 5th amendment right against self-incrimination; it protects other things as well). They are basically threefold:

- One has the right not to be subject to "compelled" self-incrimination, that is, one can not be forced in court to give incriminating testimony under pain of contempt nor can any negative inference be drawn from your failure to testify.

- The government may not "coerce" a confession; that is, you can't be questioned by police in a way that "shocks the conscience" - they can't threaten your family, or withhold medical treatment, or beat the truth out of you.

- But hey, you say, ALL police questioning is somewhat coercive, right? The Court wrestled with this for a decade or so and finally came up with the familiar formulation we all know from Miranda v. Arizona. In order to dissipate the "unduly coercive effect" of "custodial police interrogation," one subject to such custodial interrogation must be told of their right not to incriminate themselves and their right to the assistance of counsel, in substantially the same form we all see on TV.

With limited exception, the above is the 5th Amendment framework under which we're working. So, while it's true that those kids have a 5th Amendment right not to answer questions posed to them by the government (i.e. the school) if those answers might be incriminating, the school has no obligation to inform them of this fact; a school questionnaire isn't "custodial interrogation."

Nor would there be any Constitutional problem if the police used the information gained from these surveys to get warrants and search homes. In the eyes of the Constitution, these answers were consensually given and wouldn't animate 5th Amendment protection.

A lot of criminal procedural law indulges fairly stubborn fictions of this sort; if an officer says "hey, I'd like to talk to you," and then says "hey, I'd like you to tell me if there's anything in your car I need to know about," and you admit to the gun under your seat, there is no Constitutional problem; this is viewed as a consensual encounter, because a "reasonable" person knows that they don't have to talk to the police just because they are asked to.

A good Constitutional question to ask the officer who initiates such contact is "am I being detained?" Sadly, it's also a good way to escalate the situation. The Court does not do a great job of resolving these tensions. [/lecture]

 

[Dancing David]

I think it was established above that parents cannot "opt out" of the kids' rights to not self-incriminate.

As to the other part, I fully agree. I mentioned above that I'd be happy to hear that counselors and health professionals were looking into substance abuse, depression, etc... Again, they were dealing with suicides or suicide attempts and that's serious stuff. But I'd insist that it was professionals and that it was inviolably private information.

It sure look like a violation of federal law to me, under that law any substance abuse or mental health assessment has to have an 'opt in' only option.

But state courts can tale a long time to hear something like this and if no one ever files a federal complaint then it won't go to the federal law.