The dialogue approach to Miranda warnings and waiver.

• Author: Ferguson, Andrew Guthrie
• Position: III. The Dialogue Approach through V. Conclusion, with footnotes, p. 1467-1491

3. THE DIALOGUE APPROACH

   The dialogue approach to Miranda waiver emerges from the convergence of these trends in law and scientific understanding. Because the Supreme Court has now granted police officers more flexibility in reading the warnings, (260) and because suspects must now communicate to those officers in order to invoke their rights, (261) the traditional formalities that have governed the warnings become less rigid. Further, because there now exists a scientific consensus that traditional Miranda warnings fail to protect certain populations, (262) there is a need for change. Finally, because there is a recognized gap in the factual record about what precisely the suspect understood at the time of the interrogation, filling that gap should be encouraged as a way to improve decision-making by courts.

   This Part proceeds in two steps. First, it sets out the legal and scientific framework for a dialogue approach to Miranda waivers. Inspired by the actual forensic tests developed by Thomas Grisso and used to evaluate suspects' understanding of Miranda (after the interrogation), (263) this approach provides a basis to evaluate the understanding of the defendant at the time of the interrogation. This proposed real-time test of understanding can be used on all suspects, although it is perhaps best analyzed by examining waivers with vulnerable suspects.

   The second step is to look at the dialogue approach in practice. Using a documented example of such an approach, it can be demonstrated how the dialogue approach addresses some of the concerns detailed in the White Paper and points to lessons for the future. The final Part will address the resulting difficulties, objections, and concerns with this proposed approach.

   1. The Grisso Tests

   As instruments of Miranda comprehension, the Grisso tests are the gold standard in the forensic psychology community. (264) The Grisso tests have been scientifically validated (265) and legally accepted in many courts. (266) Experiments using the tests have been replicated with consistent findings and reported in respected academic and professional forums. (267) As a result, the legal community has accepted the scientific rigor and underlying conclusions with only some disagreement. (268) While designed to evaluate a suspect after the interrogation, their format, construction, and insights into cognitive processing provide a useful starting point to develop an approach inside the interrogation room.

1. Explaining the Grisso Tests

   The Grisso tests provide data to assess a knowing and intelligent waiver of Fifth Amendment fights. As part of a complete forensic assessment, (269) the instruments provide insight into the capacity and competency of an individual to waive Miranda rights. (270) In simple terms, four tests ("assessment mechanisms") are given to defendants to test their functional abilities to "know, understand, believe or do (functional abilities) in order to make an informed decision about waiver of rights." (271)

   In measuring a defendant's abilities, these tests address each of the three functional components necessary for waiver: (1) "understanding of the Miranda warnings" (i.e., the words and phrases used to convey to them the rights to silence and legal counsel); (272) (2) "perceptions of the intended functions of the rights" (273) (i.e., establishing an accurate perception about the adversarial nature of the interrogation, the attorney-client relationship, and the right against self-incrimination); (274) and (3) "expectancies and reasoning concerning probable outcomes of waiver or non-waiver of the rights" (i.e., the capacity to reason about the probable consequence of waiver or non-waiver decisions). (275) In legal terms, the first functional component parallels what is necessary for a "knowing" waiver, and the latter two are focused on determining an "intelligent" waiver. (276)

   For example, one of the assessment mechanisms is the Comprehension of Miranda Rights ("CMR") test. (277) The CMR was created to evaluate a defendant's capacity to understand his or her Miranda rights. (278) Under the CMR, the standard Miranda warnings are shown to a defendant, and then the examiner asks, "Tell me in your own words what is said in that sentence." (279) After a defendant answers those questions in his or her own words, the examiner scores the responses based on a set criteria, assigning each response a point value based on "adequacy." (280) The scoring criteria were created by a "national panel of judges, lawyers, and legal scholars [who] decided what type of response would indicate a full understanding of the right." (281) The CMR is a limited inquiry in which understanding is "one cognitive component that contributes to that broader construct as defined by legal interpretations of competence to waive Miranda rights." (282)

   Two of the other assessment mechanisms involve comprehension of Miranda in terms of recognition of and vocabulary used in the warnings. The Comprehension of Miranda Rights--Recognition ("CMR-R") test (283) was designed to assess "comprehension of Miranda warnings ... by recognition of similar meanings rather than by ability to construct a paraphrase response as in the CMR." (284) The examinee is shown the Miranda warnings and asked three follow-up statements which are either similar concepts or different concepts, and is then asked to respond to those statements. (285) The goal is to assess whether the examinee understands the concepts, rather than whether the examinee can rearticulate them. (286) It differs from the other assessment mechanisms because it requires less verbal expressive abilities than the other tests. (287)

   Similarly, the Comprehension of Miranda Vocabulary ("CMV") test focuses on the language rather than the content of the warnings. (288) As other scholars have recognized, one of the foundations to comprehension is understanding the vocabulary involved. (289) Thus, the CMV was designed to assess the specific words in the instructions. (290) The assessment requires the examinee to provide the meaning for the words, "consult," "attorney," "interrogation," "appoint," "entitled," and "right." (291) Again, there is a scoring mechanism in the actual testing manual. (292)

   Finally, the Function of Rights in Interrogation ("FRI") test seeks to "assess [an examinee's] perceptions of the function and significance of the right to silence and legal counsel in the arrest and adjudicative process." (293) The assessment mechanism tests whether the examinee understands the nature of the interrogation, (294) the right to counsel, (295) and the right to silence (296) by focusing on "why the rights might be important in the legal process and how they might function in a protective manner in the course of police investigations and prosecution." (297) In other words, the assessment looks at the suspect's "awareness of the adversarial nature of the suspect-police relationship, the advocacy and cooperative nature of the suspect-attorney relationship, and the irrevocable nature of the right to silence (that is, that the fight could not be abridged by legal authorities in the interrogation and adjudication process.)" (298) The test requires an examinee to comment on four hypothetical stories relevant to the interrogation setting, and answer a series of set questions about how the rights relate to those stories. (299)

   The Grisso tests were designed for trained experts conducting a scientific inquiry. (300) This Article does not seek to alter the widespread use of the tests to generate valid and scientifically reliable information. Instead, it seeks to adapt the insights of the Grisso tests to help inform current police practice and to develop a more complete record of functional abilities at the time of interrogation.

   2. Adapting the Grisso Tests

   The dialogue approach to Miranda waivers seeks to apply the theory behind the Grisso tests to the interrogation room at the most relevant time period. (301) The dialogue approach attempts to develop a better factual record by encouraging more detailed and focused communication between the parties at the relevant time. (302)

   To apply this approach, go back to the typical interrogation situation described at the outset of this Article. A suspect is arrested and brought to the police station. Perhaps the detective knows the suspect is a juvenile, (303) or the suspect has manifested some cognitive or mental limitations. A "red flag" is raised. (304) In the interrogation room, the detective reads the suspect Miranda warnings off a card or other form. The suspect acknowledges the reading of the warnings. Then the detective takes three simple steps to ensure the knowing and intelligent nature of this understanding.

   After inquiring if the suspect understood her rights, the detective would first ask the defendant to rephrase the warning in her own words. This step parallels the Grisso CMR test (305) as the resulting answers provide a baseline for how "knowingly" a suspect understands the Miranda rights. (306) It also provides an indicator of comprehension and cognitive understanding that experts and judges can later use to evaluate a waiver's validity. Under Powell, such off-script questioning is constitutionally permissible, (307) and the detective would have the ability to correct any misunderstandings or misstatements of the suspect. (308)

   Second, the detective could ask the suspect whether she understands some of the critical vocabulary words in the Miranda warnings. While the traditional Grisso CMV test requires inquiry into six words, (309) the detective need not go through all of them. The detective could say, "I just mentioned the word 'appoint,' (or 'fight'). What do you understand that to mean?" Taking a sample of three or so words would provide a base level of understanding of vocabulary. Again, the purpose is to gauge the level of comprehension of the suspect at the most relevant time. Finally, the...