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H. B. No. 597 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Representatives Heard, McGregor
Cosponsors:
Representatives Foley, Ramos, Fedor, Murray, Antonio, Yuko, Reece, Huffman
A BILL
To enact section 2152.05 of the Revised Code to
protect the rights of children before and during
custodial interrogations.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2152.05 of the Revised Code be
enacted to read as follows:
Sec. 2152.05. (A) As used in this section:
(1) "Child" means any unemancipated person under the age of
eighteen, notwithstanding the definition of "child" in section
2152.02 of the Revised Code.
(2) "Custodial interrogation" means the questioning of a
child about an act that was allegedly committed by the child and
that would be a criminal offense if committed by an adult, which
questioning occurs while that child is in law enforcement custody
or is being deprived of freedom of action in any significant way
by a law enforcement officer, a court employee, or an employee of
the department of youth services. "Custodial interrogation" does
not include questioning of a child by a public school
administrator or teacher if the questioning is not conducted on
behalf of a law enforcement officer, a court employee, or an
employee of the department of youth services.
(B) Before a child is questioned about anything concerning a
charge that the child allegedly committed an act that would be a
criminal offense if committed by an adult and on which the child
was taken into custody or deprived of freedom of action in any
significant way by a law enforcement officer, a court employee, or
an employee of the department of youth services, the person asking
the questions shall inform the child, in the child's own language,
of the following rights:
(1) That the child has the right to an attorney;
(2) That if the child is unable to pay for an attorney and if
the parent, legal guardian, or legal custodian of the child has
not provided an attorney, one will be appointed;
(3) That the child is not required to say anything and that
anything the child says may be used against the child;
(4) That the child has a right to communicate with the
child's parent, legal guardian, or legal custodian, whether or not
that person is present and that, if necessary, reasonable means
will be provided for the child to do so;
(5) That even if the child's attorney is not present or has
not yet been appointed, the child has the right to communicate
with the child's attorney and that, if necessary, reasonable means
will be provided for the child to do so.
(C) No person shall question a child who has been taken into
custody or deprived of freedom of action in any significant way by
a law enforcement officer, a court employee, or an employee of the
department of youth services for an act that would be a criminal
offense if committed by an adult if the child has indicated in any
manner any of the following:
(1) That the child does not wish to be questioned;
(2) That the child wishes to speak with the child's custodial
parent, guardian, or custodian or to have that person present;
(3) That the child wishes to consult an attorney before
submitting to any questioning.
(D)(1) A child who is alleged to have committed an act that
is a violation of section 2903.01, 2903.02, 2903.04, 2904.041,
2907.02, 2907.03, 2907.05, or 2907.06 of the Revised Code shall be
represented by an attorney during the entire period of any
custodial interrogation of the child. The child may not waive this
right to counsel.
(2) No admission or confession resulting from a custodial
interrogation of a child may be admitted into evidence against the
child unless the confession or admission was made in the presence
of the child's parent, guardian, custodian, or attorney. If an
attorney was not present, no such admission or confession may be
admitted into evidence against the child unless the parent,
guardian, or custodian as well as the child was advised of the
child's rights set forth in division (B) of this section. A
parent, guardian, or custodian of a child may not waive any right
on behalf of the child.
(E)(1) If a child waives any of the rights set forth in
division (B) of this section, a court may admit into evidence
against the child any statement made by the child during a
custodial interrogation if the court finds that the child
knowingly, willingly, and understandingly waived the child's
rights. In determining whether a child knowingly and voluntarily
waived any of the child's rights, the court shall consider all of
the circumstances of the waiver, including the following:
(a) The child's physical, mental, and emotional maturity;
(b) Whether the child or the child's parent, guardian,
custodian, or attorney understood the consequences of the child's
statement;
(c) Whether the child and the child's parent, guardian, or
custodian had been informed of the act with which the child was
charged or of which the child was suspected;
(d) The length of time the child was held in custody before
consulting with the child's parent, guardian, or custodian;
(e) Whether there was any coercion, force, or inducement used
in obtaining the statement;
(f) Whether the child and the child's parent, guardian, or
custodian had been advised of the child's right to remain silent
and to the appointment of counsel.
(2) Any information gained from noncustodial questioning of a
child by a public school administrator or teacher concerning a
wrongful act committed on public school property shall be
admissible into evidence against the child.
(3) When a parent is the alleged victim or alleged
codefendant of an act of a child that would be a criminal offense
if committed by an adult, no admission or confession of the child
resulting from a custodial investigation may be admitted into
evidence unless the child made the admission or confession
following a consultation between the child and an attorney or a
parent who is not involved in the investigation of the act as to
whether the child will waive the right to an attorney and the
right against self-incrimination. The law enforcement agency that
has taken the child into custody or the facility to which the
child has been delivered shall immediately make reasonable efforts
to contact a parent who is not involved in the investigation of
the act.
(F)(1) Subject to division (F)(2) of this section, a law
enforcement agency shall make an audio or audio and visual
recording of any custodial interrogation of a child that is
conducted at a place of detention and, if feasible, shall make an
audio or audio and visual recording of any custodial interrogation
of a child that is conducted at a place other than a place of
detention.
(2) A law enforcement agency is not required to make an audio
or audio and visual recording of a custodial interrogation of a
child if any of the following applies:
(a) The child refuses to respond or cooperate in the
custodial interrogation, and a law enforcement officer or agent of
a law enforcement agency made a contemporaneous audio or audio and
visual recording or written record of the child's refusal.
(b) The child made the statement in response to a question
asked as part of the routine processing after the child was taken
into custody.
(c) The law enforcement officer or agent of a law enforcement
agency conducting the interrogation in good faith failed to make
an audio or audio and visual recording of the interrogation,
because the recording equipment did not function, the officer or
agent inadvertently failed to operate the equipment properly, or
the equipment malfunctioned or stopped operating without the
officer's or agent's knowledge.
(d) The child made the statement spontaneously and not in
response to a question by a law enforcement officer or agent of a
law enforcement agency.
(e) Exigent public safety circumstances existed that
prevented the making of an audio or audio and visual recording or
rendered the making of such a recording infeasible.
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