Section Review

In the landmark case of Miranda v. Arizona¹, the Supreme Court of the United States paved the way for a litany of warnings that are familiar to virtually anyone who watches television or attends the movies. Less familiar — to lawyers and judges, as well as to the public at large — is the fact that the specific wording of these warnings was never prescribed by Miranda and varies widely across jurisdictions. Prosecutors and defense counsel alike need to understand how Miranda language can affect their cases and how to obtain and utilize the proper expertise for establishing or questioning the validity of a given defendant’s Miranda waiver.

The legal background

Miranda never mandated that an arresting officer must state, in the following exact words: “You have the right to remain silent. Every word you say can and will be used against you ….” Instead, Chief Justice Warren’s majority opinion called for the use of “clear and unequivocal terms” to convey the various components of this warning,² adding that a “fully effective equivalent” to the decision’s sample wording would also suffice.³ The Court later confirmed this distinction by supporting the use of “the now familiar Miranda warnings … or their equivalent”⁴ and by noting with approval that other courts “have not required a verbatim recital of the words of the Miranda opinion.”⁵

In Massachusetts, the reliability of a Miranda waiver is determined by considering “all of the relevant circumstances surrounding the interrogation and the individual characteristics and conduct of the defendant.”⁶ In order to judge an interrogation appropriately, lawyers and courts should both identify the actual language used to articulate the Miranda rights and determine the individual defendant’s capacity to perceive, retain and process that specific information. The commonwealth bears the burden of establishing beyond a reasonable doubt that the defendant’s Miranda waiver was voluntary, knowing and intelligent.⁷ 

The research

The leading scientific authority on the linguistic variability and impact of Miranda warnings is forensic psychologist — and
Massachusetts native — Professor Richard Rogers. Rogers and his colleagues have obtained some critical findings in this area:

1. A review of cases from 945 federal, state, and county jurisdictions revealed that 866 different versions of Miranda warnings had been given, ranging in length from 21 to 408 words and demanding a level of comprehension that ranged from the second grade to post-college.⁸

2. An assessment of 107 defendants with mental disorders indicated that the 25 percent who were most impaired only understood about 24 percent of Miranda warnings, while the 25 percent who were least impaired could comprehend only about 66 percent of these warnings.⁹

3. An analysis of 121 Spanish translations of Miranda warnings revealed numerous omissions and mischaracterizations, including the absence of such key elements as the rights to silence and counsel, and the presence of “dissimilar content with a substantial trend toward more information in English than [in] Spanish versions.”¹⁰

4. A comparison of juvenile and adult Miranda warnings surprisingly found that the juvenile warnings tended to be over 50 words longer, ranging from 52 to as many as 526 words longer than the adult versions, and featuring correspondingly higher required reading levels.¹¹

Such findings tend to refute what have been described as common “Miranda myths”: “Everyone already knows the Miranda warnings”; “Miranda warnings are the same wherever you go”; “While Miranda warnings are easy to understand, juvenile warnings are very easy to understand”; and “Miranda warnings delivered in Spanish are the same as those delivered in English.”¹² Contrary to these notions, the latest research suggests that attorneys, judges, and experts should examine both the specific content of given warnings as well as any cognitive shortcomings of the defendant.

The evaluation

Developing a comprehensive forensic psychological test to assess Miranda language difficulties across jurisdictions has been problematic. The use of one pioneering group of measures — collectively described in various appellate decisions as the “Grisso Test” or “Grisso Instrument”¹³ — was hamstrung from the outset by the presumption that “to the best of our knowledge, the wordings which we used are employed identically or with slight variations in most other jurisdictions.”¹⁴ As a result, “Miranda research for … two decades implicitly assumed the general uniformity of Miranda warnings.”¹⁵ In recent years, these measures have encountered admissibility difficulties in a number of jurisdictions, including New York,¹⁶ Connecticut¹⁷ and Florida.¹⁸

More recently, Rogers and his colleagues have developed and initially validated a Miranda Vocabulary Scale (MVS) that accounts for language differences in the warnings and reflects “key vocabulary words found in Miranda warnings across American jurisdictions.”¹⁹ However, there can be no single measure that can function as an “independent, fully comprehensive determinant of a defendant’s state of mind in regard to confession evidence.”²⁰

A properly trained forensic evaluator would seek out the precise wording of the Miranda warning administered in a given case. Initially, the warning should be analyzed to determine the overall level of difficulty it represents, using a Flesch-Kincaid estimate²¹ or similar methodology. Once the evaluator knows the degree of difficulty presented by the warning, he or she must then assess the defendant’s oral and reading comprehension, using a measure such as the Peabody Picture Vocabulary Test (PPVT4) or Wide Range Achievement Test (WRAT4).

This crucial testing should occur within the context of a full clinical examination that ascertains general intelligence, identifies interfering psychiatric conditions, screens for neuropsychological dysfunction, and assesses the potential for malingering. To place these examination results in context, the evaluator must review whatever treatment, correctional, educational, arrest, employment and other records can be obtained. The evaluator should explore two main questions: has the defendant been exposed to Miranda warnings on other occasions in the past?,²² and do obtained results reflect an ongoing pattern of impairment or do they instead appear to have surfaced all too conveniently at the same time that the defendant was most recently examined?

The forensic evaluator should also conduct an interview that investigates the defendant’s recollection of the nature of the interrogation that produced the Miranda waiver, and whether the defendant was, for example, intoxicated, malnourished or sleep-deprived.²³ A competent and persuasive forensic opinion will reflect that the evaluator compared the actual Miranda warnings to the defendant’s individual skills, deficits and mental condition, with particular attention to the same “totality of the circumstances” test as that employed by the legal system for which the evaluation was conducted.²⁴ Overall, “without appropriately broad psychometric investigation, such evaluations are likely to face robust Daubert challenges to admissibility in both state and federal courts.”²⁵

Conclusion

Counsel cannot afford to presume that every Miranda warning employs the same language that we find in countless films and television programs, or even in the Miranda case itself. If the words are different, meaning and clarity are likely to be different as well. Things can become even more complicated when evaluating a mentally ill, cognitively challenged, youthful or primarily non-English speaking defendant. Under these circumstances, counsel may need to procure a comprehensive and competent forensic mental health evaluation in order to raise any doubts regarding the validity of the given warnings. Such considerations are of equal value to prosecutors who seek to underscore the sufficiency of a particular Miranda waiver.  

Endnotes

1. Miranda v. Arizona, 384 U.S. 436 (1966).

2. Id. at 467-68.

3. Id. at 476.

4. Rhode Island v. Innis, 446 U.S. 291, 297 (1980).

5. California v. Prysock, 453 U.S. 355, 360 (1981).

6. Commonwealth v. Selby, 420 Mass. 656, 663, 651 N.E.2d 843, 848 (1995).

7. See, e.g., Commonwealth v. Jackson, 432 Mass. 82, 85, 731 N.E.2d 1066, 1070 (2000); Commonwealth v. Day, 387 Mass. 915-921, 444 N.E.2d 384, 387 (1983).

8. Richard Rogers et al., The Language of Miranda in American Jurisdictions: A Replication and Further Analysis, 32 Law & Hum. Behav. 124 (2008).

9. Richard Rogers et al., Knowing and Intelligent: A Study of Miranda Warnings in Mentally Disordered Defendants, 31 Law & Hum. Behav. 401 (2007); see also Virginia G. Cooper & Patricia A. Zapf, Psychiatric Patients’ Comprehension of Miranda Rights, 32 Law & Hum. Behav. 390 (2008). Most participants in the Rogers et al. study (71.0%) were diagnosed with such psychotic disorders as Schizophrenia, Schizoaffective Disorder, and Psychotic Disorder NOS (Not Otherwise Specified). Other, sometimes overlapping conditions included Polysubstance Abuse/Dependence (36.4%) and Bipolar Disorder (9.3%). Social scientists have also focused on the difficulties that persons with Mental Retardation may experience when confronted with Miranda warnings. See, e.g., Solomon F. Fulero & Caroline Everington, Assessing Competency to Waive Miranda Rights in Defendants with Mental Retardation, 19 Law & Hum. Behav. 533 (1995); Solomon F. Fulero & Caroline Everington, Assessing the Capacity of Persons with Mental Retardation to Waive Miranda Rights: A Jurisprudent Therapy Perspective, 28 Law & Psychol. Rev. 53 (2004); Michael J. O’Connell et al., Miranda Comprehension in Adults with Mental Retardation and the Effects of Feedback Style on Suggestibility, 29 Law & Hum. Behav. 359 (2005).   

10. Richard Rogers et al., Spanish Translations of Miranda Warnings and the Totality of the Circumstances, 33 Law & Hum. Behav. (forthcoming 2009).

11. Richard Rogers et al., The Comprehensibility and Content of Juvenile Miranda Warnings, 14 Psychol. Pub. Pol’y & L. 63 (2008).

12. Richard Rogers, Daniel W. Shuman & Eric Y. Drogin, Miranda Rights … and Wrongs: Myths, Methods, and Model Solutions, 23 Crim. Just. 5, 5-8 (2008).

13. These tests include the Comprehension of Miranda Rights (CMR), Comprehension of Miranda Rights - Recognition (CMR-R), Comprehension of Miranda Vocabulary (CMV), and Function of Rights in an Interrogation (FRI).

14. Thomas Grisso, Juveniles’ Waiver of Rights: Legal and Psychological Competence 49 (1981).

15. Richard Rogers, A Little Knowledge is a Dangerous Thing … Emerging Miranda Research and Professional Roles for Psychologists, 63 Am. Psychol. 776, 778 (2008); see also Richard Rogers, Mandy J. Jordan & Kimberly S. Harrison, A Critical Review of Published Competency-To-Confess Measures, 28 Law & Hum. Behav. 707 (2004).

16. The Court stated that the result obtained by the “Grisso Test” was “undermined by significant differences between the vocabulary used in the test and that used in the actual warnings given to the defendant.” People v. Hernandez, 846 N.Y.S.2d 371, 373 (N.Y. App. Div. 2007). See also People v. Cole, 807 N.Y.S.2d 166, 170 (N.Y. App. Div. 2005).

17. The Court stated that the trial court had “reasonably found,” based upon “due consideration” of expert testimony, that “the Grisso protocol had not been critically evaluated by Grisso’s peers and that it had not been generally accepted as scientifically valid.” State v. Griffin, 273 Conn. 266, 285, 869 A.2d 640, 651 (2005).

18. The Court stated that “with respect to the Grisso Test results, the trial court properly found that the defense had not laid an adequate foundation” to satisfy relevant admissibility standards. Carter v. State, 697 So.2d 529, 533 (Fla. Dist. Ct. App. 1997)

19. Richard Rogers et al., Development and Initial Validation of the Miranda Vocabulary Scale, 33 Law & Hum. Behav. (forthcoming 2009).

20. John Parry & Eric Y. Drogin, Mental Disability Law, Evidence and Testimony 127 (2007).

21. Rogers et al., supra note 11.

22. Prior instances of receipt and acknowledgement of Miranda rights and overall criminal justice system experience are pertinent in determining the voluntariness of a defendant’s most recent waiver. See, e.g., Commonwealth v. Garcia, 443 Mass. 824, 833, 824 N.E.2d 864, 871 (2005).

23. The courts must exercise special care in analyzing Miranda waiver competency when evidence indicates the defendant may have been intoxicated. Commonwealth v. Silanskas, 433 Mass. 678, 682, 746 N.E.2d 445, 453 (2001).

24. See Commonwealth v. Edwards, 420 Mass. 666, 670, 651 N.E.2d 398, 401 (1995).

25. John Parry & Eric Y. Drogin, Criminal Law Handbook on Psychiatric and Psychological Evidence and Testimony 116 (2000).

 Eric Y. Drogin serves on the faculties of the Harvard Medical School Department of Psychiatry and the Harvard Longwood Psychiatry Residency Training Program. He is a staff member of the Beth Israel Deaconess Medical Center’s Program in Psychiatry and the Law.  An attorney and board-certified forensic psychologist, Drogin specializes in forensic psychological evaluation and trial consultation.