GA Code § 15-11-28 (2021)
2021 Georgia Code|Title 15 - Courts|Chapter 11 - Juvenile Code|Article 1 - General Provisions|§ 15-11-28. Privilege Against Self-Incrimination

  No admission, confession, or incriminating information obtained from a child in the course of any screening that is undertaken in conjunction with proceedings under this chapter, including but not limited to court ordered screenings, shall be admitted into evidence in any adjudication hearing in which a child is accused under this chapter. Such admission, confession, or incriminating information may be considered by the court at disposition.   No admission, confession, or incriminating information obtained from a child in the course of any assessment or evaluation, or any treatment that is undertaken in conjunction with proceedings under this chapter, including but not limited to court ordered detention or risk assessments and evaluations, shall be admitted into evidence against such child, except as rebuttal or impeachment evidence, or used as a basis for such evidence in any future adjudication hearing or criminal proceeding in which such child is accused. Such admission, confession, or incriminating information may be considered by the court at disposition.     (Code 1981, §15-11-28, enacted by Ga. L. 2013, p. 294, § 1-1/HB 242.)   Law reviews.   - For article discussing due process in juvenile court procedures in California and Georgia, in light of In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967), see 8 Ga. St. B. J. 9 (1971). For article, "Termination of Parental Rights: Recent Judicial and Legislative Trends," see 30 Emory L. J. 1065 (1981). For comment, "School Bullies - They Aren't Just Students: Examining School Interrogations and the Miranda Warning," see 59 Mercer L. Rev. 731 (2008).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 24A-2002, pre-2000 Code Section 15-11-31 and pre-2014 Code Section 15-11-7(b), which were subsequently repealed but were succeeded by provisions in this Code section, are included in the annotations for this Code section. See the Editor's notes at the beginning of the chapter.   Private interview of child by father's counsel not necessary.    - Requiring a child to submit privately and alone to an interview by his father's counsel is not necessary. The father's rights provided by statute are adequate and proper to ensure him a fair hearing. In re L.L.W., 141 Ga. App. 32, 232 S.E.2d 378 (1977) (decided under former Code 1933, § 24A-2002).    Former Code 1933, § 24A-2002 was implementation of constitutional right of due process. In re L.L.W., 141 Ga. App. 32, 232 S.E.2d 378 (1977) (decided under former Code 1933, § 24A-2002).    Constitutional privilege against self-incrimination was as applicable in juvenile cases as it was with respect to adults. K.E.S. v. State, 134 Ga. App. 843, 216 S.E.2d 670 (1975) (decided under former Code 1933, § 24A-2002).   Fair trial required.    - Adjudicatory phase of a delinquency proceeding is the functional equivalent of the trial in the regular criminal or civil process, and a juvenile charged with delinquency is entitled by right to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial; those principles include the privilege against self-incrimination and the right of cross-examination under former O.C.G.A. § 15-11-7(a) and (b) (see now O.C.G.A. §§ 15-11-19 and15-11-28). In the Interest of J.C., 257 Ga. App. 657, 572 S.E.2d 21 (2002) (decided under former O.C.G.A. § 15-11-7).    Rule as to confessions of juveniles should be same as that for confessions of adults because law enforcement officers cannot be certain when law enforcement officers question a juvenile what kind of case may develop, and the statutory safeguards are applicable to both criminal and juvenile cases. Crawford v. State, 240 Ga. 321, 240 S.E.2d 824 (1977) (decided under former Code 1933, § 24A-2002).   Juvenile confessions judged with more care and caution.    - Confessions of juveniles are scanned with more care and received with greater caution. Crawford v. State, 240 Ga. 321, 240 S.E.2d 824 (1977) (decided under former Code 1933, § 24A-2002).   Voluntary pretrial statement admitted.    - Since the defendant was a minor when the defendant's statement was given and the defendant's statement was made outside the presence or without the assistance of counsel or other responsible adult, and there was no evidence that the defendant's statements were involuntary, the defendant's pretrial statement was admissible. Duffy v. State, 262 Ga. 249, 416 S.E.2d 734 (1992) (decided under former O.C.G.A. § 15-11-31).    Minor has capacity to make voluntary confession even in a capital case, without the presence or consent of counsel or other responsible adult, with such absence being just one factor or circumstance to consider in determining the voluntariness of the confession. Marshall v. State, 248 Ga. 227, 282 S.E.2d 301 (1981) (decided under former O.C.G.A. § 15-11-31).   Minor with mental disability may confess.    - Mere showing that one who confessed to crime may have suffered from some mental disability is not a sufficient basis upon which to exclude the statement. Marshall v. State, 248 Ga. 227, 282 S.E.2d 301 (1981) (decided under former O.C.G.A. § 15-11-31).   Presence of parents during questioning.    - There is no provision requiring that one or both parents be present during the questioning. Marshall v. State, 248 Ga. 227, 282 S.E.2d 301 (1981); Duffy v. State, 262 Ga. 249, 416 S.E.2d 734 (1992) (decided under former O.C.G.A. § 15-11-31).    Parents were denied due process in a termination of parental rights proceeding since the parents were excluded from an observation room during an interview of their children, even though the parents' attorneys were present in the room, from which location no one would have been seen or heard by the children. In re M.S., 178 Ga. App. 380, 343 S.E.2d 152 (1986) (decided under former O.C.G.A. § 15-11-31).   Waiver of right against self-incrimination.    - Question of a voluntary and knowing waiver by a juvenile of the juvenile's right not to incriminate oneself depends on the totality of circumstances to be analyzed by a consideration of nine factors: (1) the age of the accused; (2) the education of the accused; (3) knowledge of the accused as to both the substance of the charge and the nature of the accused's rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends, or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) the methods used in the interrogation; (7) the length of the interrogation; (8) whether vel non the accused refused to give statements voluntarily on prior occasions; and (9) whether the accused has repudiated an extrajudicial statement at a later date. Marshall v. State, 248 Ga. 227, 282 S.E.2d 301 (1981) (decided under former O.C.G.A. § 15-11-31).    Age alone is not determinative of whether a person can waive one's rights. Marshall v. State, 248 Ga. 227, 282 S.E.2d 301 (1981) (decided under former O.C.G.A. § 15-11-31).   Waiver of rights upheld on appeal absent clear error.    - Question of whether or not a defendant is capable or incapable of making a knowing and intelligent waiver of the defendant's rights is to be answered by the trial judge and will be accepted by an appellate court unless such determination is clearly erroneous. Marshall v. State, 248 Ga. 227, 282 S.E.2d 301 (1981) (decided under former O.C.G.A. § 15-11-31).   Delinquency found when acts corroborated confession.    - Child's confession out-of-court corroborated by evidence that stolen items were found in the child's possession within a few hours of the crime with which the child was charged, theft, constituted sufficient proof to support a finding of delinquency. A.C.G. v. State, 131 Ga. App. 156, 205 S.E.2d 435 (1974) (decided under former Code 1933, § 24A-2002).   Transfer hearings must meet essentials of due process and fair treatment.    - Transfer hearings are critically important proceedings affecting important rights of the juvenile. While a hearing need not conform with all of the requirements of a criminal trial or even of the usual administrative hearing, the hearing must measure up to the essentials of due process and fair treatment. R.S. v. State, 156 Ga. App. 460, 274 S.E.2d 810 (1980) (decided under former Code 1933, § 24A-2002).    When former Code 1933, §§ 24A-2002 and 24A-2501 are read together, a juvenile faced with the possible transfer of the juvenile's case from juvenile court to "the appropriate court having jurisdiction of the offense" has the right to an evidentiary hearing at which the juvenile must be given "the opportunity to introduce evidence and otherwise be heard in his own behalf and to cross-examine adverse witnesses." R.S. v. State, 156 Ga. App. 460, 274 S.E.2d 810 (1980) (decided under former Code 1933, § 24A-2002).   Fair trial not found.    - Juvenile did not receive a fair trial since the juvenile was not permitted to confront the state's witness, and was questioned without being sworn or advised of the right to remain silent, and the consequences of foregoing that right. In the Interest of J.C., 257 Ga. App. 657, 572 S.E.2d 21 (2002) (decided under former O.C.G.A. § 15-11-7).    Cited in In the Interest of D. H., 332 Ga. App. 274, 772 S.E.2d 70 (2015); Mathenia v. Brumbelow, 308 Ga. 714, 843 S.E.2d 582 (2020).   RESEARCH REFERENCES   Am. Jur. 2d.   - 47 Am. Jur. 2d, Juvenile Courts and Delinquent and Dependent Children, § 96 et seq.   C.J.S.   - 43 C.J.S., Infants, § 199 et seq.   U.L.A.   - Uniform Juvenile Court Act (U.L.A.) § 27.   ALR.    - Power of juvenile court to require children to testify, 151 A.L.R. 1229.   Applicability of rules of evidence in juvenile delinquency proceeding, 43 A.L.R.2d 1128.   Voluntariness and admissibility of minor's confession, 87 A.L.R.2d 624.   Defense of infancy in juvenile delinquency proceedings, 83 A.L.R.4th 1135.   Applicability of rules of evidence to juvenile transfer, waiver, or certification hearings, 37 A.L.R.5th 703.   Juvenile's guilty or no contest plea in adult court as waiver of defects in transfer or certification proceedings, 74 A.L.R.5th 453.