Can the police question a mentally challenged person for a crime without another person present?

UPDATED: Sep 30, 2022

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Can the police question a mentally challenged person for a crime without another person present?

A friends brother has the mental
capacity of a 12 yr old but is 24 years
old. He was hanging out with a 15 yr
old runaway and the parents called
police. Police came and picked up my
bfs brother and was told by 3 family
members to not question him without
someone else present as he is
mentally challenged. They did not
listen and questioned him by himself
and now are charging him with sexual

Asked on September 14, 2016 under Criminal Law, Nebraska


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

If he has been adjudicated, or determined by a court, to be mentally incompetent and to require a legal guardian or conservator, and one has been appointed, then he may not be questioned without that person present, the same way the police are limited in how they could question a minor child without a parent or legal guardian present. Furthermore, if he was or is determined to be mentally incompetent, then if he was questioned, his confession(s) or statements can possibly be thrown out for his lack of capacity. But if he is mentally competent, even if not as developed or advanced as he should be, or even if he may not be competent, but has not been found to be incompentent (a person is competent until and unless a court finds him otherwise), then he can be questioned like any other adult.
You need to get an attorney who will look into having him declared incompetent (if he is). If his public defender won't or doesn't care, try contacting local law schools--many have clinics where law students provide assistance for challenged or at-risk or vulnerable persons under the supervision of professors. Call advocacy groups for the mentally challenged--some may have, or at least can refer you to, attorneys who provide assistance in cases like this. And try contacting the Community Health Law project--they help some developmentally disabled or challenged persons. Here is theirnational website:

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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