She is not old enough to waive her rights or understand that what she says can be used against. Add to that the trauma she just went through and it is shaky at best for them to question her without a parent or a lawyer IF they want to use her statements against her.
If it was you child that was just rescued from a rape/kidnapping/possibly saw her parent murdered, and without your presence or an attorney questioned your twelve year old and then tried to use it against them I would imagine you would have an attorney raising hell about it.
You can't waive your rights until you understand you are waiving them.
Yes. I understand what you are saying. But questioning a kid about what happened to her and her mom as if she is a victim, and if she is not in police custody, she does not need to be advised of her rights.
Of course, a defense attorney could mount a great argument if she did incriminate herself in the course of such questioning, but it's highly unlikely it would succeed. Her rights do not kick in until she is being questioned as any other suspect. So, under questioning as a victim, there's nothing for her to waive.
On the other hand, if she was being questioned while in LE custody as a potential suspect, she doesn't need to ask for a lawyer. A minor child only needs to ask for a parent or guardian and it's as if they have requested a lawyer and all questioning must cease until the parent arrives.
I think it's hard to understand when Miranda rights kick in. I know I have a hard time fully grasping it. But I do know that being in custody for one's own protection, like being a juvenile who needs to be cared for by someone, does not count. Also, if LE calls someone in for questioning and they are being questioned as a potential witness, not a suspect, the rights don't kick in.
The courts have made numerous rulings on what custody means. Here's a small sample. It's long!:
MEANING OF CUSTODY
34:1, p. 7. A defendant was in custody for
Miranda purposes when he gave statements to a police officer while on a stretcher in a hospital, even though he had not been placed under arrest. Mayberry v. State, 600 S.E.2d 703 (Ga.App. 2004).
34:2, p. 7. A defendant was not "in custody," after being asked by the police to exit the car in which he was a passenger, but prior to his formal arrest. United States v. Teemer, 394 F.3d 59 (1st Cir. 2005).
34:2, p. 7. Defendant was not "in custody" when he made statements to a police officer at a hospital, and thus
Miranda warnings were not required. State v. Guzman-Gomez, 690 N.W.2d 804 (Neb. App. 2005).
34:2, p. 7. A defendant was not "in custody" during a stand off with the police when he made statements to a police detective. Campbell v. State, 820 N.E.2d 711 (Ind.App. 2005).
34:3, p. 7. A police officer who was offered a bribe after he arrested defendant did not violate the defendant's
Miranda rights by wearing a recording device and trying to get defendant to repeat the bribe offer on the tape. People v. Flynn, 789 N.Y.S.2d 33 (N.Y.App. 2005).
34:3, p. 8. A defendant was not "in custody" for
Miranda purposes when police questioned her at her home. Morales v. United States, 866 A.2d 67 (D.C. 2005).
34:5, p.7. Nine-hour detention constituted
Miranda "custody."People v. Pascual, 111 P.3d 471 (Colo. 2005).
34:5, p. 7. Lack of formal arrest and existence of informal atmosphere negated
Miranda custody. Rosky v. State, 111 P.3d 690 (Nev. 2005).
Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003) - Miranda "custody" was not found during a po0lice interrogation concerning a murder, even though the defendant was transported to a police station for an interview in a police car, the interview lasted over 4 hours, and he was arr4ested by a parole officer for a parole violation following the interview. (For details see Law Enforcement Legal Review - May/June 2003
http://home.xnet.com/~lelp/lelr/index.htm
U.S. v. Hanson, 2001 WL 66401 (8th Cir. 2001)
Government agents wanted to question an arson suspect in their office. To persuade the suspect to come to their office the agents informed him that they merely wanted to show the suspect photographs of some recent vandalism. Once inside the agent's office the suspect was interviewed and interrogated without being given Miranda warnings. U.S. attorneys argued that this tactic was merely subtle subterfuge. However, the court ruled that this was a deceptive stratagem and that the suspect was in custody and, therefore, should have been given his Miranda rights before any questioning.
State v. Tucker, 763 A. 2d 1058 (N.H. 2001)
While in custody the defendant made a spontaneous, non-solicited bribe offer. This was ruled admissible as a volunteered statement
Commonwealth v. Sparks, 433 Mass. 654, 746 N.E. 2d 133 (Mass. 2001)
The suspect voluntarily accompanied police to the police station and was told that he was free to leave at any time. After the suspect made incriminating statements during an interview at the police station he was allowed to leave the station. The court ruled that no Miranda warnings were required in this instance because it was not a custodial interrogation.
http://www.reid.com/educational_info/r_updates.html#meaning_custody