When North Carolina police arrest a juvenile under age 14, can the juvenile waive the right to have an attorney present during interrogation, or does the law require an attorney to be present no matter what the child says?

Plain-English summary

A police sergeant asked whether G.S. 7A-549, effective January 1, 1980, let a juvenile under fourteen waive the right to have an attorney present during interrogation. The 1979 Attorney General answered yes. The opinion carefully separates that waivable attorney-presence right from the under-fourteen child's separate, nonwaivable protection: an in-custody admission or confession could not be admitted into evidence unless a parent, guardian, custodian, or attorney was present.

The AG read the supporting-person requirement to cover the entire interrogation, even though one passage of the statute referred to presence when the admission was made. The opinion points to the general right to a parent, guardian, or custodian during questioning and the requirement that a present nonattorney adult be told of the juvenile's rights. Advising that adult only after questioning would not serve those rights.

Subsection (4) separately required the judge, before admitting a custodial statement, to find that the juvenile knowingly, willingly, and understandingly waived applicable rights. The opinion says older juveniles could waive subsection (1) rights on that basis. It concludes that an under-fourteen juvenile could waive attorney presence under subsection (1), but could not waive the additional supporting-person requirement in subsection (2). A parent, guardian, or custodian could not waive rights on the child's behalf.

Currency note

This opinion was issued in 1979 about a statute taking effect in 1980. Check current North Carolina juvenile interrogation law before applying its rule today.

What this means for you

Investigators. Under the opinion's reading, an under-fourteen juvenile's waiver of attorney presence did not dispense with the need for a parent, guardian, custodian, or attorney throughout custodial questioning if the resulting admission was to be used in evidence.

Parents and counsel. The opinion says a present parent, guardian, or custodian had to be informed of the juvenile's rights when no attorney was present. That adult could not waive the juvenile's rights for the child.

Common questions

Could a child under fourteen waive having an attorney in the room?

Yes, according to the AG's express conclusion. Another qualifying supporting person still had to be present for an in-custody admission or confession to be admissible.

Could the child waive the presence of every supporting person?

No. The opinion reads subsection (2) as nonwaivable by the child or a parent, guardian, or custodian. It also cites a Juvenile Code Revision Committee report rejecting a proposal to let a child under fourteen refuse everyone listed.

Was presence only at the moment of confession enough?

No. The AG said the qualifying person had to be present throughout the interrogation.

Could a parent waive the child's right to remain silent?

The statute as quoted says a parent, guardian, or custodian may not waive any right on the child's behalf. The opinion does not discuss a parent's separate ability to direct the child's answers.

Background and statutory framework

Chapter 815 of the 1979 Session Laws established the G.S. 7A-549 provisions discussed here. Subsection (1) listed warnings and rights for juveniles in custody before questioning. Subsection (2) added the supporting-person condition for admitting an in-custody admission or confession by a juvenile under fourteen. Subsection (4) required a judicial finding on knowing, willing, and understanding waiver before admitting a custodial statement. The AG distinguished the waivable attorney-presence right from subsection (2)'s nonwaivable condition.

Citations

• G.S. 7A-549
• Chapter 815 of the 1979 Session Laws
• 1979 Report of the Juvenile Code Revision Committee, p. 183

Source

• Landing page: https://ncdoj.gov/opinions/juveniles-waiver-of-right-to-counsel-before-and-during-interrogation/

Original opinion text

Requested By: Sgt. James Preston Simmons Elkin Police Department

Question: Does the G.S. 7A-549 permit a juvenile, less than fourteen years of age, to waive his right to have an attorney present during interrogation?

Conclusion: Yes.

Chapter 815 of the 1979 Session Laws is effective January 1, 1980. Among its provisions is G.S. 7A-549, which says: "(1) Any juvenile in custody must be advised prior to questioning:

• (a) That he has a right to remain silent; and
• (b) That any statement that he does make can be and may be used against him; and
• (c) That he has a right to have a parent, guardian or custodian present during questioning; and
• (d) That he has a right to consult an attorney and that one will be appointed for him if he is not represented and wants representation.
• (2) When the juvenile is less than fourteen years of age, no in-custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile's parent, guardiaan, custodian, as well as the juvenile must be advised of the juvenile's rights as set out in subsection (1); however, a parent, guardian, or custodian may not waive any right on behalf of the juvenile.
• (3) . . .
• (4) Before admitting any statement resulting from custodian interrogation into evidence, the judge must find that the juvenile knowingly, willingly and understandingly waived his rights."

This statute sets clear rules for the treatment of juveniles fourteen years of age and older. They have the rights set forth in subsection (1), including the right to have a protective "parent, guardian or custodian present during questioning" and the right "to consult an attorney." They may waive these rights "knowingly, willingly and understandingly". G.S. 7A-549(4).

Juveniles less than fourteen are treated somewhat differently. Subsection (2) speaks specifically to them. Read literally, it gives the juvenile under fourteen the additional right to have some supportive adult, be it "parent, guardian, custodian or attorney" present when the young juvenile makes his in-custody confession or admission. However, the statute undoubtedly means that these persons must be present for the entire interrogation. Only this meaning comports with the right afforded all juveniles by subsection (1)(c) to have their parents, guardians or custodians present during questioning.

The right given younger juveniles by subsection (2) differs from those in subsection (1) in that it cannot be waived, either by the juvenile or his parent, guardian or custodian. For younger juveniles, "no in-custody admission or confession resulting from interrogation may be admitted into evidence unless the confession or admission was made in the presence of the juvenile's parent, guardian, custodian or attorney." G.S. 7A-549(2) (Emphasis added) Lest there be any doubt of this conclusion, we note that Juvenile Code Revision Committee, drafters of the proposed legislation, wrote:

"The Committee heard from presentees that in many cases . . . the juvenile under 14 should be permitted to refuse to have any of the persons listed present. Those arguments were rejected." 1979 Report of the Juvenile Code Revision Committee, p. 183.

While the right afforded by subsection (2) cannot be waived, this is not to say that an attorney must be present during questioning of a child less than fourteen. The statute demands the presence of a "parent, guardian, custodian or attorney (emphasis added)," and any one of these will do. In fact, the statute explains what must be done whenever an attorney is not present. In that case, the parent, guardian or custodian who is present must be told of the rights available to the juvenile under subsection (1). G.S. 7A-549(2) (This procedure reinforces our earlier statement that the parent, guardian, custodian or attorney must be present during questioning, not merely present for the final confession. It makes no sense after the child's interrogation is complete to advise his parent — in the absence of an attorney — of the child's right to consult counsel or to have his parent present during questioning.)

In short, a juvenile less than fourteen years of age may waive his right to have an attorney present during questioning, but he may not waive his right to have some supporting adult, be it parent, guardian, custodian or attorney present at that time.

Rufus L. Edmisten
Attorney General

Steven Mansfield Shaber
Associate Attorney