The dialogue approach to Miranda warnings and waiver.

Author:Ferguson, Andrew Guthrie
Position:Introduction through II. Scientific Understanding of Miranda Waiver Consensus-Based Understanding, p. 1437-1467

OFFICER: Okay, Mr. Faulkner, do you knowingly, intelligently and voluntarily waive these rights as I have read them out to you on this Miranda warnings?

DEFENDANT: I don't understand that. Could you translate that down for me?

OFFICER: Okay. Do you knowingly, intelligently and voluntarily, do you know what I read you? Do you understand it? Are you intelligent enough to understand what I've read you, and do you voluntarily waive these rights that I've read you? Are you willing to talk to me?

DEFENDANT: Yes, sir. (1)


In a typical criminal case involving a disputed confession, the following scenario occurs: A suspect is brought to the police station. He is placed in a small interrogation room. A detective reads the suspect Miranda warnings. The suspect acknowledges the reading of the warnings. The suspect waives his Fifth Amendment rights. (2) The suspect confesses. A few months later, an expert is consulted to determine if the suspect actually understood those rights, and whether the suspect "knowingly, intelligently, and voluntarily" (3) waived them. Perhaps the suspect has manifested cognitive limitations or mental health issues. (4) Psychological tests to determine the intelligent, knowing, and voluntary waiver are conducted. (5) Based on the expert evaluation and test results, the suspect challenges his confession in court. Months later, the ultimate question of the adequacy of the knowing, intelligent, or voluntary waiver is litigated before the trial judge. The court must then make a legal determination based on a "totality of circumstances" standard (6) about whether the waiver was valid. (7)

The question remains: What did the suspect know and understand at the time of the interrogation? The central tension in any disputed confession case arises from the fact that the tests to evaluate the suspect's knowing, intelligent, and voluntary waiver are conducted months after the relevant time of the interrogation. (8) Months later, a suspect might know his rights from having talked to a family member, lawyer, or "jail house lawyer." (9) Months later, a suspect might misrepresent his actual knowledge recognizing that the confession is detrimental to his case. (10) While expert evaluation and testing is necessary to make a determination after the fact, what controls the legal determination is the suspect's knowledge and understanding of his rights at the time of the interrogation. (11) This tension exists because current Miranda practice fails to develop an adequate record of a suspect's knowledge and understanding at the time of the waiver. (12) Even with perfect recording technology, current Miranda practice involves what is essentially a one-way explanation. The police officer conveys Miranda rights to the suspect through a formalized recitation of the warnings. (13)

Usually this is done through a reading and signing of a pre-printed Miranda waiver form or card. (14) AS detailed in Faulkner v. State excerpted at the outset of this Article, in practice a suspect must acknowledge the warnings, but need not do more. (15) As a result, courts cannot easily assess the extent to which a suspect knew, understood, and willingly relinquished constitutional rights. (16) Judges are left evaluating proxies for this information--the suspect's intelligence (as measured by intelligence quotient or "IQ"), age, education level, and experience with the criminal justice system. (17) While these are all important factors, they cannot replace information about the suspect's actual state of knowledge and intelligent understanding at the time of waiver.

This Article proposes a new "dialogue approach" to resolve this tension and limit the ambiguity in disputed waivers, especially for vulnerable suspects. The dialogue approach would require suspects to confirm their understanding (18) of the rights and the consequences of the waiver by restating the rights in their own words at the time of the interrogation. In addition, it would require a brief interchange between the police and the suspect about the purpose of fights and the roles of the participants in the interrogation. It changes the Miranda waiver process from a one-way presentation to a two-way dialogue. This approach would give police officers the tools to understand whether the suspect really does understand his or her constitutional rights. It would also give courts and experts more accurate data to make findings about the adequacy of waiver. The result would be a real-time test of waiver that could inform the court's ultimate legal conclusion about the knowing, intelligent, and voluntary waiver of constitutional rights.

Two recent developments in law and forensic psychology frame this proposal. First, in three recent opinions, the Supreme Court has reconceptualized the contours of how police officers should give Miranda warnings. (19) In Florida v. Powell, the Supreme Court held that Miranda warnings need not be formalized with the same language in every jurisdiction, so long as the officer reasonably communicates the rights to the suspect. (20) In Berghuis v. Thompkins (21) and Montejo v. Louisiana, (22) the Supreme Court required the suspect affirmatively to invoke the right to silence and the right to counsel, respectively. (23) Prior to Berghuis, it would have been unnecessary for a suspect to say anything, let alone communicate his understanding of his right to silence. (24) The suspect could have remained silent, neither having to invoke his right nor having his comments interpreted as an implied waiver of rights. (25) Now he must communicate with the officer. (26) Taken together, these cases allow for a more informal process that requires communication between the suspect and the interrogating officers. In addition, all three decisions reaffirm, with rather emphatic language, the predicate foundation that all waivers be knowing, intelligent, and voluntary. (27) Thus, within a more flexible approach to Miranda, there now exists a communicative space for a dialogue about what those rights mean to the suspect--especially a vulnerable suspect with cognitive, developmental, or other limitations.

Significantly, these legal decisions have developed in parallel with an emerging scientific consensus on interrogations and confessions. (28) The 2010 "White Paper" entitled Police Induced Confessions: Risk Factors and Recommendations sets forth the accepted scientific understanding of the issues surrounding disputed confessions. (29) This White Paper was commissioned by the American Psychology Law Society and consists of an extensive meta-survey of existing scholarship on the subject. Among other subjects, the report addresses the centrality of suspects' understanding of Miranda rights prior to waiver. (30) Additional research from social scientists and forensic psychologists on waiver issues has now reached a level of sophistication such that these studies and evaluations have been presented in courts across the country. (31) These studies validate the techniques developed to evaluate whether there was a knowing and intelligent waiver of Miranda warnings, and provide guidance for this Article's proposed solution.

This Article seeks to provide a new framework to address the problem of evaluating a knowing and intelligent waiver of Miranda warnings at the time of interrogation. (32) It focuses primarily on interrogations occurring in formal interrogation rooms (33) and with proper recording devices to record the waiver of rights. (34) The "dialogue approach" requires an inquiry into a suspect's comprehension of his or her constitutional rights at the time the Miranda warnings are read by police interrogatorsY Similar to the well-established tests designed by Dr. Thomas Grisso (36) for evaluating a knowing and intelligent waiver, the dialogue approach would require the suspect to explain in his or her own words what the rights mean. (37) An interrogating officer would be required to ask the suspect both to articulate the meaning of the words and concepts just stated and briefly explain their relevance to the current interrogation. In doing so, a record could be established about the base-line comprehension of the suspect at the relevant time. The suspect's answers might, but would not necessarily, result in a continued discussion between suspect and police officer about the meaning of the constitutional rights at issue. (38) Whether or not a dialogue continued, the process would create a more complete record for experts and judges upon which to base a scientific or legal conclusion.

This proposal is consistent with current research on disputed confessions, (39) rests on a scientifically and legally accepted practice for testing a knowing and intelligent waiver, (40) and is responsive to the Supreme Court's recent commentary on Miranda warnings. (41) More importantly, it resolves the central tension in many disputed confession cases without disturbing foundational constitutional protections or interfering with legitimate law enforcement interrogation. Suspects, experts, litigants, and courts will all be better informed about the facts underlying the legal determination of constitutional waiver.

Part I of this Article sets out the legal issues involved in a knowing, intelligent, and voluntary waiver of Miranda rights. Part II sets out the current scientific understanding of Miranda comprehension tests as well as their applicability and admissibility in court. This Part surveys the scientific consensus on waiver in the forensic psychology community focused on vulnerable populations, such as suspects with intellectual disabilities, mental illness, and juveniles. Part III addresses the specific problem of waiver with vulnerable populations and proposes a new framework through a dialogue approach. While the dialogue approach applies to all suspects, it is particularly appropriate for use with vulnerable suspects. This Part also examines a representative...

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