around the bar
August 19, 2010

Miranda Waivers Can be Based on Faulty Warnings, and Courts May Never Know

Using Spanish to read a Spanish-speaking crime suspect her rights can have unintended consequences.

“You have the right to remain whitewashed” was one of the bad translations of the Miranda warning that led to the appeal of a conviction, shared forensic psychologist Dr. Eric Y. Drogin of Hingham, Mass., in “Miranda Warning and Waivers:  The Impact of Age, Culture and Disability Status,” a program at the 2010 _ Meeting in San Francisco.

Because numerous factors may taint effectiveness of someone’s waiver of Miranda rights, lawyers and courts must look beyond waivers to assess a suspect’s comprehension and capacity to make critical decisions.

Analysis of convictions appealed on the basis of inadequate Miranda warnings found 945 opinions citing 866 different versions of the English-language warning, ranging in length from 21 words to 408, and in comprehension levels from second grade to post college, said Drogin.  There also were 121 different versions of Spanish-language translations, including the one protecting the right to remain whitewashed.  Court decisions on the validity of waivers in these cases are “all over the lot,” Drogin said.

Reading suspects their rights may satisfy the courts, but still not inform suspects of their constitutional protections in a meaningful way, said Drogin and other panelists.

Age, physical or mental disability, language, intellectual capacity, personality type and previous or coincidental exposure to trauma are among factors that can make Miranda warnings ineffective.  And courts may be fooled by evaluations of suspects’ ability to comprehend warnings, if testers often use language that that varies from the version employed at arrest.

Among problem areas cited:

  • Warnings given to juveniles tend to be longer and harder to understand than those given to adults, up to more than 500 words longer;
  • Examiners may not understand or correctly address a suspect’s disabilities—simply increasing the volume may not really address comprehension for someone with a hearing disability, for example;
  • Telling a person in a wheelchair they are free to cut off questioning and leave is meaningless if there are access or transportation challenges;
  • Suspects with dependent personalities who are anxious to please may lack capacity to comprehend the risk they assume by cooperating with authority figures;
  • Alzheimer’s sufferers may vacillate between rationality and lack of comprehension, compromising a post-interrogation evaluation of their ability to knowingly waive their rights;
  • Trauma can shut down the very area of the brain where high-level analysis and decision-making occurs.  When emotional stress causes a mental meltdown, capacity to rationally decide to waive legal rights can evaporate as well.

Dr. Mort P. Cohen, a professor at Golden Gate University School of Law in San Francisco, noted “courts often say a person has an absolute right to make an irrational decision,” but a foundational consideration should be capacity to decide, and courts generally apply a deeply subjective test, “totality of the circumstances,” to assess capacity.

Totality of circumstances includes the perspectives of the accused and of the law enforcement officer, adding in such attendant circumstances as time of day, weather conditions.  Age, health, post traumatic stress disorder, education, maturity, previous experiences with law enforcement, intoxication, IQ, mental health, police training:  all contribute to the totality of circumstances, making the analysis extremely complex.

Lisa Piechowski, a forensic psychologist from Glastonbury, Conn., cited a range of sources lawyers should consult in assessing the capacity of a client to effectively waive legal rights.  Her list ranged from disability findings by the Social Security Administration to self-reports and observations of others.  She noted the importance of comparing definitions used by analysts when reviewing written evaluations.

Houri Parsi, a lawyer and clinical psychologist from San Francisco, explained how trauma, whether physical or emotional, can impair decisional ability.  A bar exam tutor, she relayed that she tells her students to be wary of the stress of taking a bar exam.  The trauma can shut down the frontal areas of a person’s brain, to relieve emotional tension, she said.  But the same portions of the brain conduct analytical thinking—an undesirable consequence for test-taking, she said.

“Miranda Warning and Waivers:  The Impact of Age, Culture and Disability Status” was sponsored by the Commission on Mental and Physical Disability Law and several other ABA entities.

Comments (3)

  • Anonymous
    12:45 PM September 5, 2010

    Create only one legally correct Spanish version and train all law enforcement personnel to read, say, memorize it…problem solved.

  • Anonymous
    9:49 AM September 11, 2010

    Law enforcement can’t even give criminal suspects one consistent version of Miranda in English, for God’s sake. You think those redneck sheriffs in the deep South, or any other substrata of law enforcement, most of whom haven’t read, written or spoken one word of Spanish or any other foreign language their entire lives, and whose skills with English are often questionable at best, could actually memorize a standardized version of Miranda in a language they know absolutely nothing about, and deliver it accurately at the moment of arrest to criminal suspects? I HIGHLY doubt it. In fact, as a statistician, I’d put the odds of that happening at significantly above a million to one. Problem NOT solved, not even close.

  • Anonymous
    5:50 PM December 28, 2010

    If you can’t do the time, then don’t do the crime. Problem solved.