Home > The Role of Law Enforcement in the Response to Child Abuse and Neglect > The Role of Law Enforcement in the Response to Child Abuse and Neglect: Issues in Arrest

The Role of Law Enforcement in the Response to Child Abuse and Neglect
User Manual Series (1992)

Author(s):  U.S. Department of Health and Human Services Donna Pence, Charles Wilson

Year Published:  1992

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You are in section: Table of Contents Additional Acknowledgment Preface Acknowledgments Introduction 1 - Overview Of The Child… 2 - Role Of Law Enforcement In… 3 - The Investigative Process 4 - Decision Making 5 - Special Considerations For… 6 - Special Types Of Investigations 7 - Special Investigative… 8 - Issues in Arrest Conclusion Glossary Of Terms Notes Selected Bibliography Other Resources

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Issues in Arrest

The Miranda Warning

As in any other investigation, the Miranda warnings should be provided prior to any custodial interview of the alleged offender. Officers should never try to circumvent the necessity of these warnings by having the CPS caseworker interview the suspect in a custodial setting (such as a police station, jail, or after arrest). Failure to properly observe these requirements will result in the inadmissibility of the statement for trial and expose the parties to lawsuits.

If the investigator's interview is considered an in-custody interrogation, the law enforcement officer must give the perpetrator the following warnings as prescribed by the Supreme Court of the United States in the Miranda case.

• He/she has the right to remain silent, and he/she need not answer any questions.
  
  
• If he/she does answer questions, the answer can be used against him/her.
  
  
• He/she has the right to consult with an attorney before or during questioning by the police.
  
  
• If he/she cannot afford to hire an attorney, one will be provided for him/her without cost.
  
  

All of these warnings must be given in such a way that the suspect clearly understands what he/she is being told.

If the suspect indicates at any time or in any manner whatsoever that he/she does not want to talk, the interrogation must cease. The interrogator is no longer privileged to talk him/her out of this refusal to talk.

If the suspect says at any time that he/she wants a lawyer, the interrogation must cease until he/she has the opportunity to confer with an attorney. No further questions may be asked of him/her outside the lawyer's presence or without the lawyer's permission, nor can the interrogator "talk him out of his desire for a lawyer." However, the subject can recant of his/her own free will the desire for a lawyer.

Currently, the only time a police interrogation of a suspect who is in custody or otherwise restrained can be conducted is after he/she has been given the required warning and after he/she has expressly stated that he/she is willing to answer questions without a lawyer being present. Once that waiver is given, the interrogator may then proceed to employ those interrogation techniques and tactics that are normally used. They can also be used without prior warnings or waiver on a suspected person who is not in police custody or otherwise deprived of his/her freedom of action in any significant way.

Use of Arrest versus Grand Jury Presentation

"In most communities only a very small proportion of child abuse and neglect cases result in arrest"⁵² and prosecution. When prosecution is indicated, the officer and prosecutor must make a determination about the best way to proceed. Depending on the jurisdiction, the investigator will weigh the advantages and disadvantages of an immediate probable cause arrest against the advantages and disadvantages of other charging options, such as direct presentation to the grand jury.

The first decision is whether immediate arrest is required. Probable cause arrest has certain disadvantages in child abuse cases. In an incest case, for example, premature arrest may result in the family closing ranks to protect the perpetrator before the investigation is concluded.⁵³ In most jurisdictions, it means a preliminary hearing in which the child may have to testify often before he/she has even fully disclosed or begun to be prepared to confront the offender. A recantation on the stand can have a devastating impact on the child and the prosecution. As the National Center for Prosecution of Child Abuse suggests, "In general avoid having the child testify at preliminary proceedings," except where the law requires or the prosecutor wishes to evaluate the strength of the case.⁵⁴

There are times when immediate arrest is indicated, including when:

• there is reason to believe that the perpetrator will flee the jurisdiction if given the opportunity;
  
  
• it is necessary to preserve the peace or protect the child; and
  
  
• the suspect presents an immediate threat to others.

Whenever arrest occurs, there are guidelines that will reduce the adverse impact of the process on the child in intrafamilial cases and increase the likelihood of cooperation from the offender.

• Investigators should not arrest and handcuff the perpetrator in front of the victim, if there is any type of positive or formal relationship involved.
  
  
• If arrest is anticipated, investigators should be sure a records check is conducted for past arrests first; there may be outstanding charges or a history of resisting.
  
  
• Investigators may give a cooperative offender who has confessed the opportunity to present him/herself for arrest.

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You are in section: Table of Contents Additional Acknowledgment Preface Acknowledgments Introduction 1 - Overview Of The Child… 2 - Role Of Law Enforcement In… 3 - The Investigative Process 4 - Decision Making 5 - Special Considerations For… 6 - Special Types Of Investigations 7 - Special Investigative… 8 - Issues in Arrest Conclusion Glossary Of Terms Notes Selected Bibliography Other Resources

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Updated on October 9, 2009