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![handle is hein.sag/sagmd0113 and id is 1 raw text is: CONSTITUTIONAL LAW
JUVENILE CAUSES - CUSTODIAL INTERROGATION - RIGHT TO
COUNSEL - WHETHER THE CHILD INTERROGATION
PROTECTION ACT VIOLATES ANY CONSTITUTIONAL
RIGHT OF A CHILD TO SUBMIT TO CUSTODIAL
INTERROGATION WITHOUT THE ASSISTANCE OF COUNSEL
OR OF A PARENT TO CONTROL THEIR CHILD'S DECISIONS
DURING INTERROGATION
January 11, 2024
The Honorable Elizabeth Embry
Maryland House of Delegates
In 2022, the General Assembly enacted the Child
Interrogation Protection Act (the Act), which, among other
things, provides that [a] law enforcement officer may not conduct
a custodial interrogation of a child until ... [t]he child has consulted
with an attorney. Md. Code Ann., Courts & Jud. Proc. (CJP)
§ 3-8A-14.2. In the summer of 2023, soon after the law took effect,
some prosecutors began making public statements suggesting that
the Act might be unconstitutional. They have raised two
arguments. First, they have suggested that the Act's requirement
that a child consult with an attorney might be unlawful because, the
argument goes, a suspect not only has a constitutional right to the
assistance of counsel at custodial interrogation but the right to
proceed without the aid of an attorney. The statute is thus
unconstitutional, the argument continues, because it denies
children the right to submit to custodial interrogation without the
assistance of counsel. Second, these prosecutors have suggested
that the Act might unconstitutionally infringe upon parental rights
by not permitting parents to decide whether their child should
consult with an attorney, speak to police, or both. In light of these
public statements, you have asked for our opinion about the
constitutionality of the Act.
As we explain below, we see no basis to conclude that the
Act's attorney-consultation requirement violates the constitutional
rights of children or their parents. With respect to children subject
to the Act, we are not aware of any right to be subjected to
custodial interrogation without the assistance of counsel. Although
the United States Supreme Court has recognized a limited right to
self-representation at criminal trials, the Court has never suggested
that such a right applies to custodial interrogations. Regardless,
even if such a right to self-representation existed, the Act does not
actually prevent a child from answering police officers' questions
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