presentation for reclaiming futures by lourdes rosado, esq. juvenile law center april 23, 2009

Behavioral Health Screening, Assessment and Treatment in the Juvenile Justice System:

Protecting Youth Against Self-Incrimination

Presentation for Reclaiming Futures

By Lourdes Rosado, Esq. Juvenile Law Center

April 23, 2009

Resources

• Protecting Youth from Self-Incrimination when Undergoing Screening, Assessment and Treatment within the Juvenile Justice System, available at http://www.jlc.org/files/publications/protectingyouth.pdf

Agenda• Behavioral health-juvenile justice initiatives • The right against self-incrimination• Potential for self-incrimination in behavioral health

examination and treatment• Federal protections against self-incrimination in the

behavioral health context• Current law and gaps in three sites

– North Carolina– Missouri– Washington

• Model statutes from around the country

Initiatives around the country

• Screening & assessment at intake probation

• Screening & assessment in detention

• Diversion programs

• Juvenile MH & Drug Courts

• Juvenile Assessment Centers

• Juvenile Correctional Reception & Diagnostic Centers

• Court-based assessment clinics

Potential Benefits

• Identify youth with BHS disorders and divert them out of JJS and into treatment

• Identify youth in detention facilities who will need special monitoring/treatment to keep them/others safe

• For adjudicated youth, use assessment results to fashion effective dispositions

• Getting adjudicated youth into right treatment helps them avoid sinking deeper

Potential Risks

• Over- and mis-diagnosis of youth if screens/assessments administered and/or interpreted by improperly staff

• “Net widening” effect

• Inappropriate uses of results of screening & assessment

• Information-sharing puts sensitive health information into court or probation files

• Potential for self-incrimination***

The right against self-incrimination:Federal Law

United States Constitution• 5th Amendment Right Against Self-Incrimination:

“No person … shall be compelled in any criminal case to be a witness against himself…”

• 6th Amendment Right to Counsel: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.”– In re: Gault, 387 U.S. 1 (1967) (constitutional rights

protect juveniles accused of offenses)


United States Supreme Court Case Law• Under 5th Amendment, statements are

inadmissible if:– Involuntary under the totality of circumstances,

Arizona v. Fulminante, 499 U.S. 279 (1991); Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

• And with youth, extra care must be taken to ensure that statements are not coerced or suggested, or the product of ignorance of rights. See In re: Gault, 387 U.S. 1 (1967). See also Gallegos v. Colorado, 370 U.S. 49 (1962); Haley v. Ohio, 332 U.S. 596 (1948).

– Obtained during custodial interrogation when defendant not advised/did not make valid waiver of Miranda rights, Miranda v. Arizona, 384 U.S. 436 (1966).


United States Supreme Court Case Law• Under 6th Amendment, statements are

inadmissible if: – Deliberately elicited from defendant once the right

to counsel attaches (at initiation of adversary judicial proceedings), absent a valid waiver of right to counsel. Maine v. Moulton, 474 U.S. 159 (1985); United States v. Henry, 447 U.S. 264 (1980); Massiah v. United States, 377 U.S. 201 (1964).

• But 6th Amendment right to counsel is offense specific, McNeil v. Wisconsin, 501 U.S. 171 (1991).

The right against self-incrimination:North Carolina law

North Carolina state constitution• N.C. Const. Art. I, § 23: In all criminal

prosecutions, every person charged with a crime has the right not to be compelled to give self-incrimination evidence.

North Carolina statute• N.C. Gen. Stat. § 7B-2101: Any juvenile in

custody must be advised prior to questioning that the juvenile has a right to remain silent, and that any statement the juvenile makes can and may be used against the juvenile.

The right against self-incrimination:Missouri law

Missouri state constitution• Mo. Const. Art. 1, § 19: no person shall be

compelled to testify against himself in a criminal cause.

Missouri statute• Mo. Rev. Stat. § 211.059: when a child is taken

into custody by a juvenile officer/law enforcement official,child shall be advised prior to questioning that he has the right to remain silent, and that his statements can be used against him.

The right against self-incrimination:Washington law

Washington state constitution• Wash. Const. Art. 1, § 9: No person shall be

compelled in any criminal case to give evidence against himself.

Washington statute• Rev. Code Wash. (ARCW) § 13.40.140(8): A

juvenile shall be accorded the same privilege against self-incrimination as an adult. An extrajudicial statement which would be constitutionally inadmissible in a criminal proceeding may not be received in evidence at an adjudicatory hearing over objection.

Where does potential arise for self-incrimination with regard to mental health examination and

treatment in juvenile justice systems?

• Intake/preliminary inquiry/interview

• Detention

• Court-ordered evaluations

• Court-ordered treatment

Behavioral HealthScreening & Assessment Instruments

• MAYSI-2– Have you ever hurt or broken something on purpose,

just because you were mad?

– Have you done anything you wish you hadn’t when you are drunk or high?

– Have you gotten in trouble when you’ve been high or drinking? If yes, has the trouble been fighting?

– Have you ever seen someone severely injured or killed (in person – not in movies or on TV)?


• GAINS-SS

When was the last time you ……used alcohol or drugs?

…had a disagreement in which you pushed, grabbed or shoved someone?

…took something from a store without paying for it?

…sold, distributed or helped to make illegal drugs?

…drove a vehicle while under the influence?

…purposely damaged or destroyed others’ property?


• Millon (MACI)

True or False– I used to get so stoned I did not know what I was doing

– I sometimes get pleasure from hurting someone physically

– I often have fun doing certain unlawful things

– I used to try hard drugs to see what effect they’d have

– I enjoy starting fights

– I’m no different from lots of kids who steal things now and then


• CBCL – Youth Self Report

True or False– I destroy things belonging to others

– I physically attack people people

– I set fires

– I steal from places other than home

– I threaten to hurt people


• CASIHave you ever…..…stole drugs, dealt drugs, dealt drugs or stole money to

buy drugs, or used money from stolen goods to buy drugs?

…forced someone to engage in sexual activity when they did not want to?

…initiated fights or carried around guns, knives, other weapons?

…committed a violent crime?…been a member of a gang, or hung around people who

commit crimes?


• POSIT– Do you threaten to hurt people?

– Have you accidentally hurt yourself/someone else while high on alcohol/drugs?

– Have you ever threatened anyone with a weapon?

– Do you get into fights a lot?

– During the past month have you driven a car while you were drunk or high?

– Have you had a car accident while high on alcohol or drugs?

– Have you stolen things?

What federal protections exist for statements made during ….?


• Detention



U.S. Supreme Court Case Law

Estelle v. Smith, 451 U.S. 454 (1981)• Facts of case:

– Court ordered pre-trial psychiatric exam of the D at the jail where being held to determine his competency to stand trial

– D convicted of murder– At sentencing, examining psychiatrist testified

to disclosures made by D as well as conclusions he made as to D’s future dangerousness based on the exam

– D sentenced to death

U.S. Supreme Court Case Law

Estelle v. Smith (con’t)• Holding:

– Violated 5th Amendment right against self-incrimination

• Psychiatrist agent of the state • Compelled examination while he was in state custody• D was not advised/did not make valid waiver of Miranda

rights• 5th Amendment privilege applies to both guilt and penalty

phases– Violated 6th amendment right to counsel

• Counsel not advised as to full scope of use of competency exam prior to the examination

Federal Drug & Alcohol Regulations,42 CFR Part 2

• Apply to federally assisted providers, i.e.,– recipient of any federal financial assistance

– state or local government unit that receives federal funds

– IRS tax exempt status

• Protections would NOT apply to information collected by non-federally assisted providers administering screens and assessments


• Recipients of disclosed records may not use the information to initiate or substantiate any criminal charges against the patient; this restriction bars, among other things, the introduction of the information as evidence in a criminal proceeding and any other use of the information to investigate or prosecute a patient with respect to a crime. 42 USC §290dd-2(c); 42 CFR § 2.12(d).


• However, investigative authorities may apply for order to authorize disclosure/use of patient records to criminally investigate or prosecute a patient. 42 CFR § 2.65(a). – Court may issue order if certain criteria met, including

that crime is extremely serious, such as one which causes or directly threatens loss of life or serious bodily injury, i.e., homicide, rape, kidnapping, armed robbery, assault with a deadly weapon. 42 CFR § 2.65(d).

What state protections exist for…?


• Detention



North Carolina Law and Intake/Preliminary Interview

N.C. Gen Stat. § 7B-2408: not admissible prior to disposition.

North Carolina Law and Detention

None found.

North Carolina Law and Court-Ordered Evaluations

None found.

North Carolina Law and Court-Ordered Treatment

No statute or court rule found.

In the Matter of Linberry, 572 S.E.2d 229 (N.C. App. 2002) (penalizing youth who refuses to admit guilt in court-ordered sex offender treatment violates right against self-incrimination).

Missouri Law and Intake/Preliminary Interview

After a child is taken into custody, all statements to the juvenile officer and juvenile court personnel (which can include physicians, psychiatrist, psychologist) and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter. Mo. Ann. Stat. § 211.271.

Missouri Law and Detention

After a child is taken into custody, all statements to the juvenile officer and juvenile court personnel (which can include physicians, psychiatrist, psychologist) and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter. Mo. Ann. Stat. § 211.271.

Missouri Law and Court-Ordered Evaluations

After petition is filed, the court may order mental health examination of juvenile. See Supreme Court Rule of Juve. Practice, 123.01. The juvenile is afforded self-incrimination protections under Mo. Rev. Stat. § 552.020:

“No statement made by the accused in the course of any examination or treatment pursuant to this section and no information received by any examiner or other person in the course thereof, whether such examination or treatment was made with or without the consent of the accused or upon his motion or upon that of others, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding then or thereafter pending in any court, state or federal.” Mo. Rev. Stat. § 552.020 (14).

Missouri Law and Court-Ordered Treatment

After petition is filed, the court may order mental health examination of juvenile. See Supreme Court Rule of Juve. Practice, 123.01. The juvenile is afforded self-incrimination protections under Mo. Rev. Stat. § 552.020:

“No statement made by the accused in the course of any examination or treatment pursuant to this section and no information received by any examiner or other person in the course thereof, whether such examination or treatment was made with or without the consent of the accused or upon his motion or upon that of others, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding then or thereafter pending in any court, state or federal.” Mo. Rev. Stat. § 552.020 (14).

Washington Law and Intake/Preliminary Interview

None found.

Washington Law and Detention

None found.

Washington Law and Court-Ordered Evaluations


State v. Decker, 842 P2d 500 (Wash. App. 1992) (the court may grant immunity – use and derivate use – to the respondent in a predispositional evaluation.

State v. Holland, 656 P2d 1056 (WA 1983) (statements in court ordered evaluations inadmissible in case in chief unless defendant advised and made valid waiver of rights; but admissible for impeachment purposes)

Washington Law and Court-Ordered Evaluations

State v. Diaz-Cardona, 98 P.3d 136 (Wash. App. 2004) (order compelling adjudicated juvenile to undergo sex offender evaluation violates privilege against self-incrimination because admissions could be used to enhance sentence)

But seeQ.L.M. v. State, 20 P.3d 465 (Wash. App. 2001)

(statements made in court-ordered evaluation admissible in sexually violent predator detention proceeding because they are civil proceedings and resulting detention is treatment not punishment.

Washington Law and Court-Ordered Treatment


State v. Warner, 889 P.2d 479 (Wash. 1995) (statements made during court-ordered treatment pursuant to delinquency adjudication inadmissible in criminal trial where compelled by threat of penalty).

A Call for Protections

• OJJDP and Council of State Governments

• Various organizations including NCMHJJ

• Accrediting organizations such as ACA and NCCHC

• Developers of screening & assessment instruments

• Specialty guidelines for clinicians working in correctional settings

As the MAYSI-2 developer says…The potential for youths’ self-reported information on screening

instruments to be used in prejudicial ways in the legal process threatens the value of mental health screening as a way to identify youths’ potential mental and emotional conditions in need of clinical response. When defendants are questioned by juvenile justice personnel in non-confidential circumstances, they must be informed how the information will or could be used, especially if there are uses that might jeopardize their legal cases. Were youths to be informed of this, however, it would virtually negate the value of mental health screening, because it would often inhibit them from reporting thoughts, feelings or behaviors that are important to learn in order to determine whether they have mental or emotional conditions that require a response for their own safety and welfare.

Model statutes and court rules

Maryland

Information/statements secured during a § 3-A8-17 study (includes court-ordered mental health evaluations) of the minor, or routine intake under 3-8A-10, is not admissible in evidence in any adjudicatory hearing or peace order proceeding “except on the issue of respondent’s competence to participate in the proceedings and responsibility for his conduct . . . where a petition alleging delinquency has been filed, or in a criminal proceeding prior to conviction.” Md. Code Ann., § 3-8A-12.

ConnecticutAny information concerning a child obtained during

any mental health screening or assessment shall be used solely for planning and treatment purposes and shall otherwise be confidential and retained in the files of the entity performing such screening or assessment. The information may be further disclosed only for purposes of court ordered evaluation or treatment or to provide services to the child or pursuant to mandated abuse reporting laws. The information is not subject to subpoena or other court process for use in any other proceeding or for any other purpose.

Iowa

Statements or other evidence derived directly or indirectly from statements which a child makes to a juvenile intake officer without the presence of counsel subsequent to the filing of a complaint and prior to adjudication is not to be admitted as evidence; unless the child and the child's attorney consent to the admission of such statements or evidence. Iowa. Code. Ann. § 232.47. Further, statements made by the child during intake or at a waiver hearing are not admissible as evidence in chief against the child in subsequent criminal proceedings over the child's objection in any event. Iowa. Code. Ann. § 232.45(11).

Texas

Texas code provides for the mental health screening of juveniles who have been referred to probation department:

Any statement made by a child and any mental health data obtained from the child during the administration of the mental health screening instrument under this section is not admissible against the child at any other hearing. The person administering the mental health screening instrument shall inform the child that any statement made by the child and any mental health data obtained from the child during the administration of the instrument is not admissible against the child at any other hearing. Texas Human Resources Code § 141.042(g).

JLC Model• JLC recommends that each state enact a

comprehensive statute to provide comprehensive protections that keep pace with the innovative programs being implemented in juvenile courts

• In the meantime, jurisdictions can use JLC’s template to develop interagency MOUs as a stop-gap measure

JLC Model

• An interagency MOU should at least specify:– Agencies involved

– Description of the screening, assessment and or treatment protocol

– Prohibited and permitted disclosures and uses of information and statements obtained during these processes

• Who will/will not have access to the information and when

• What will they be allowed to/prohibited from doing with that information

• What is the information’s admissibility/inadmissibility in various court proceedings

Juvenile Law Center

How to Contact Us:

Our website: www.jlc.org

Our phone numbers:

800-875-8887 (in PA)

215-625-0551

My e-mail: [email protected]

http://www.jlc.org/

mailto:[email protected]

presentation for reclaiming futures by lourdes rosado, esq. juvenile law center april 23, 2009

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