Statutes | Menominee Tribal Code Part II Chapter 278 Article XII ยง 278-181 | 2020

A. 
Interrogation and custodial interrogation - definitions. For the purposes of this article:
(1) 
An "interrogation" occurs whenever a law enforcement officer or other official asks a child a question, or subjects a child to any words or actions, that the law enforcement officer or other official knows or should know is reasonably likely to elicit an incriminating response and
(2) 
A "custodial interrogation" is any interrogation during which a reasonable person of the childs age and in the childs position would consider himself or herself to be unable to terminate the encounter.
B. 
Advisement of rights.
(1) 
Prior to interrogating a child, the law enforcement officer or other official shall advise the child, in language the child will easily understand:
(a) 
That the child has the right to remain silent, and anything the child says may be used against the child in Court
(b) 
That the child has the right to have his or her parent, guardian or caretaker present during any questioning
(c) 
That the child has the right:
[1] 
To be represented by legal counsel
[2] 
To consult with legal counsel prior to any questioning and
[3] 
To have legal counsel present during any questioning.
(2) 
Prior to initiating or resuming the interrogation of any child, the law enforcement officer or other official shall again advise the child of his/her rights pursuant to this section:
(a) 
If there has been any lapse in time since the prior advisement, including, but not limited to, circumstances in which the interrogation is resumed or re-initiated after ceasing or being interrupted for any reason or
(b) 
If the law enforcement officer or other official is not the person who most recently advised the child, and:
[1] 
The law enforcement officer or other official was not present during the prior advisement or
[2] 
The child was unaware that the law enforcement officer or other official was present during the prior advisement.
C. 
Custodial interrogation - presence of parent or legal counsel.
(1) 
No child shall be subject to custodial interrogation unless the childs parent, guardian or caretaker, or legal counsel for the child, is present.
D. 
Inadmissible statements and derivative evidence.
(1) 
An oral, written, or other statement of a child made as a result of any interrogation shall be inadmissible as evidence against the child in any delinquency or criminal proceedings, unless:
(a) 
The child was advised of his or her rights and
(b) 
The child clearly and affirmatively waived his or her rights before being questioned.
(2) 
An oral, written, or other statement of a child made as a result of a custodial interrogation shall be inadmissible as evidence against the child in any delinquency or criminal proceedings, unless:
(a) 
The statement is made after consultation with and in the presence of legal counsel and the parent(s), guardian(s) or caretaker(s)
(b) 
An electronic recording is made of the custodial interrogation and
(c) 
The recording is accurate and not intentionally altered or
(3) 
An oral, written, or other statement of a child made as a result of any interrogation prior to or during which the child was subjected to threats or physical punishment shall be inadmissible as evidence against the child in any delinquency or criminal proceedings.
(4) 
If the Court finds that a statement is inadmissible, then any statements or other evidence derived from the inadmissible statement, including subsequent statements made by the child, shall be likewise inadmissible as evidence against the child in any delinquency or criminal proceedings.
E. 
Other statements.
(1) 
The provisions of inadmissible statements and derivative evidence of this section, shall not preclude the admission of:
(a) 
A statement made by the child in open Court in any Court proceeding in which the child was represented by legal counsel
(b) 
A spontaneous statement not made in response to interrogation or
(c) 
A statement made in response to a question that is:
[1] 
Routinely asked during the processing of a child being taken into custody and
[2] 
Not a question that the law enforcement officer knows or should know is reasonably likely to elicit an incriminating response.
(2) 
The Tribe shall bear the burden of proving by a preponderance of the evidence that a statement falls within one of the exceptions identified in this section.
F. 
Factors relating to admissibility.
(1) 
Before permitting any childs statement to be introduced as evidence against the child, the Court must find that the statement was voluntarily and knowingly made, taking into account these and any other relevant factors:
(a) 
Whether the child had the opportunity to consult with his or her parent, guardian or caretaker, or legal counsel before making the statement
(b) 
The childs age, maturity, and level of education
(c) 
The childs level of intelligence and mental development as well as the presence of any cognitive or mental disability or impairment
(d) 
The childs physical and mental condition at the time the statement was made
(e) 
The length of time the child was detained prior to interrogation, and the length of time the child was interrogated before making the statement
(f) 
The environment in which the interrogation took place
(g) 
The number of law enforcement officers who conducted or were present during the interrogation, as well as their physical characteristics and demeanor
(h) 
Any use of deception by the law enforcement officer(s) conducting the interrogation and
(i) 
Whether, either prior to or during the interrogation, the child was held in isolation, deprived of food or sleep, or subjected to other potentially coercive measures.
G. 
Electronic recording - preservation and confidentiality.
(1) 
Any electronic recording of any statement made by a child during a custodial interrogation shall be preserved until:
(a) 
The childs adjudication for any delinquent acts relating to the statement is final, or the initiation of proceedings relating to such delinquent acts is barred by law
(b) 
All direct appeals or actions on petitions for the writ of habeas corpus have been exhausted, or the time limit for bringing such appeals or petitions has expired
(c) 
The child has been released from any detention, restrictions or other conditions or obligations imposed by the Court in connection with any proceedings relating to the statement and
(d) 
A minimum of three years has passed since the original recording was made.
(2) 
Any electronic recording of any statement made by a child during a custodial interrogation shall be subject to the provisions of this section.