TL;DR

Yes. Escondido criminal defense attorney Richard S. Sterger says that when police might get involved in a school investigation, parents should act as if they will, and bring in counsel early if they can. A lawyer can keep a child from saying anything incriminating and can ask police or the district attorney about a diversion program that may keep the case from ever being referred or filed.

• If there is a possibility police will get involved in a school investigation, Sterger advises acting as if they will, and having counsel early if possible, even when only administrators are investigating.
• School administrators are not police. They may not give Miranda warnings, give access to a lawyer or let a child call their parents, but the child does not have to answer their questions.
• Early involvement lets a lawyer ask law enforcement about a diversionary resolution, such as a local program through the Boys and Girls Clubs, that can keep the case from ever being referred.
• Even after a referral, the district attorney's office can choose a prepetition diversionary outcome or diversion supervised by the court.
• Sterger describes a tiered system: early diversion with no future record, court diversion, probation followed by a sealed record, and for more severe cases a secured track facility followed by a petition to seal.

What if the school is investigating my child and police may follow?

Watch this answer on YouTube (10:28)

Richard S. Sterger: You need to act as if they are going to be involved. Retaining an attorney immediately is a luxury. I'm not going to act like everybody has access to counsel. If you do have access to counsel and you are not exercising it, I think you're probably going to regret it. You want to have counsel, if possible, immediately, even when it's just the administration that is investigating.

There is a link between these two questions, talking about school administrators and what can be done before actual charges are brought, [before] a petition is filed. Administrators, first off, are not police. When you're talking to them, they may not Mirandize you. They don't have to give you access to a lawyer. They don't have to let you call your parents. They can do all sorts of things and have you in a pressure situation because of their role and power, that you're going to feel as though you have to respond and answer to those questions. You don't. That's a difficult place to place a young kid in, whether or not they speak to administrators.

Can a lawyer help before formal charges are filed?

Watch this answer on YouTube (11:19)

Richard S. Sterger: In the context of juveniles, absolutely. When there's something going on that potentially could be criminal and you catch wind of it as a parent, the kid comes home and says, "Hey, this happened at school. Principal's starting to talk to people. I think they're going to call me in next." That's a good time to call a lawyer if what went down is something that's going to potentially bring up a criminal type situation.

One, we're there to ensure that what is shared is not in and of itself damaging or incriminating, because we have a constitutional right to not have to incriminate ourselves. If there is something that could potentially be criminal, they have to be able to prove it without us. That's what our constitution affords us. All we're doing is exercising our constitutional right when we stay quiet. When we say, "Look, if there really was a crime, you need to prove it without me."

The second part of that is the diversionary aspect. Oftentimes getting involved in understanding what really went on gives us a position to talk to even law enforcement and see if law enforcement might be open to some type of diversionary resolution, where, "Hey, we're going to work with you. We're going to get this kid into one of the programs here locally through the Boys and Girls Clubs or some other organization," and they address these issues. Perhaps if they work through one of the programs that the police administer or work with community organizations to administer, we can avoid this ever even being referred.

That is the ultimate outcome in the world. We handle it here. We get the steps needed. We keep trying to get the kids back on the right path. If they do what they're supposed to do, this whole thing just disappears.

I'll be clear about this. There are situations where the police will do this on their own. But if we're asking for it in the right context, we increase our odds that that is a consideration. That's where we come in. We're not coming in here to say that I necessarily can, but I'm going to help you know that you can actually ask for it.

That's carried forward. Even if it is referred over to the district attorney's office, we can talk to the district attorney's office, and the district attorney's office could decide a prepetition diversionary outcome. Or they could say, "We want a petition. We want a judge to supervise it. But all this stuff that you've talked to us about, we'd be open to a diversionary resolution, but diversion through the court."

How do we keep one juvenile mistake off a permanent record?

Watch this answer on YouTube (29:46)

Richard S. Sterger: This is such a tiered response. Is there early stage diversion? That's a possibility. No future record. There is perhaps later stage, in a petition that's been filed, a diversionary outcome through the court.

Then you have where maybe there is a crime and there is a term of probation that's set up, and there's things the court wants you to do to comply with learning from this experience. You learn through that experience, you are released from it, and your record is sealed. Then it doesn't follow you forward.

Then there's more severe crimes where you may actually go into a secured track facility. At the end of that, you may have to petition, and we can get your record sealed. There's things all the way down the line that we can do to keep this from affecting your future, closing it down and putting a bow on it. It really just depends on context and at what stage we can get rid of it.

We don't want to release a bunch of kids out into the world that are going to be hobbled. In a system that's based on rehabilitation, which our juvenile system is, we want people going out into the world rehabilitated.

Frequently Asked Questions

Does my child have to answer questions from the school principal?

No. Sterger explains that administrators are not police, so they may not give Miranda warnings, provide access to a lawyer or let a child call their parents. A child may feel pressured to answer, but they do not have to.

When should parents call a lawyer during a school investigation?

Sterger says a good time is when a child comes home saying something happened at school and the principal is starting to talk to people, if what happened could bring up a criminal situation. He advises acting as if police will be involved whenever there is a possibility they will.

Can a case be resolved before it is referred to the district attorney?

Sometimes. A lawyer can ask law enforcement whether they would be open to a diversionary resolution, such as a local program through the Boys and Girls Clubs or another community organization. If the child completes it, Sterger says the matter can disappear without ever being referred.

Is diversion still possible after a case reaches the district attorney?

Yes. Sterger says the district attorney's office could decide on a prepetition diversionary outcome, or it could file a petition and agree to diversion supervised by the court.

Can a juvenile record be sealed after probation?

According to Sterger, when a child completes a term of probation and is released from it, the record is sealed and does not follow them forward. Even after a secured track facility, a petition may be filed to seal the record.

Edited for length and clarity from a recorded conversation with Richard S. Sterger. Watch the full interview on YouTube.