April 18, 2012 • Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
Police officers in Milledgeville, Georgia arrested and handcuffed a six-year old who was throwing a tantrum in her kindergarten class.
Not surprisingly, the arrest received national media attention.
Could this happen in California? Perhaps. Nothing prevents school officials from calling in law enforcement personal to arrest a student. And it’s conceivable that a very young student could act out in such a way that would cause a teacher or principal to conclude that the police should intervene.
It is, however, less likely that charges would be filed in California against a six-year old. Under California law, when prosecutors allege that someone under the age of 14 has committed a crime, they have to independently establish that the child who was arrested could distinguish right from wrong and knows what it means to break the law and commit a crime.
A hearing is specially convened to determine whether the prosecution can introduce clear proof showing that “a child under the age of 14 years at the time of committing the act appreciated its wrongfulness.” The hearing is called a Gladys R. Hearing after the 1970 California Supreme Court case that established the requirement for the hearing. The right to the hearing can be waived if the child fills out a form indicating that they understand right from wrong. If a hearing is convened, however, most of the testimony regarding the child’s capacity comes from parents and others know or have evaluated the child. It is rare for the child to testify at their own Gladys R. hearing.
As a Los Angeles juvenile defense attorney, I know that the Gladys R. hearing does not, of course, guarantee that prosecutors won’t use questionable judgment and file charges against very young children. But the fact that prosecutors have to show that the child understands what it means to commit a crime does to some extent deter the kind of charges that were at the heart of the arrest in Georgia.