Did your client understand their rights?
When defense attorneys have sought to exclude the confessions of defendants on the grounds that the Miranda waiver was invalid, mental health professionals can evaluate a defendant’s capacity to have understood their rights, and to have waived them knowingly, voluntarily, and intelligently before making a statement to police. The question of possible invalidity of a defendant’s waiver of rights is most commonly raised when an individual has a significant intellectual deficit or a psychological disorder, or when it has been alleged that police employed interrogation tactics that may have failed to meet legal standards or lacked due process.
Some authorities have referred to psychological evaluations that assess one’s capacity to validly waive Miranda rights as if they determine a defendant’s “competency to confess.” However, competency to confess is not a legal concept. So far, no defendant has ever been found competent or incompetent to confess. Their statements are simply found to be valid or invalid, having been made “voluntarily, knowingly, and intelligently” on the basis of the “totality of circumstances.”
Current assessment procedures regarding capacity to waive Miranda involve evaluating the defendant’s present capacities, gathering information about the arrest procedure itself, the atmosphere of police questioning, and examining how these factors may have interacted to affect the defendant’s comprehension and decision-making abilities at the time of the waiver. Additionally, the examiner will directly question the defendant about what he or she can currently comprehend regarding the Miranda warnings.
The Instruments for Assessing Understanding and Appreciation of Miranda Rights (Grisso, 1998) offer a standardized way to assess the capacity to comprehend and reason about these warnings at the time of the evaluation. When forming opinions about a defendant’s abilities at the time of their statement, often weeks or months earlier, clinicians use these instruments as part of an inferential process that involves many other clinical and investigative variables. As such, the Grisso Instruments’ interpretive role is important, but also rather modest. However, they do offer useful information regarding the “knowing” and “intelligent” aspect of the waiver decision. If a defendant does not comprehend the materials at the time of testing, and the examiner has ruled out malingering, fatigue, poor motivation, or recent nueropsychological deterioration, this increases the probability of poor comprehension in the past, especially under challenging conditions such as police questioning. The examiner then looks for other data to support or refute that hypothesis.
Regarding the “voluntariness” of a defendant’s Miranda waiver, examiners may look at the time of day or night the statement was made, the length of time the suspect was held incommunicado, where the suspect was held prior to waiver and questioning, conditions under which the suspect was held, opportunities for the suspect to contact an attorney or another supportive person, and police demeanor, among other things. Forensic psychologists may use the Gudjonsson Suggestibility Scales (1997) to examine a defendant’s propensity to yield to suggestions from police officers, or to make a distorted or false statement.
The inferential process that is required in these kinds of evaluations is complex. The examiner must retrospectively interpret the defendant’s capacities based on evidence of their current abilities, reports of a defendant’s behavior and state of mind at the time of police questioning, and knowledge of a wide range of circumstances regarding the interrogation.
If it is suspected that the defendant lacked capacity to make a valid waiver of his or her rights per Miranda, I recommend that legal counsel not speak to their client about these rights. Instead, wait for the mental health professional to evaluate the defendant regarding their understanding of the rights in order to glean the “cleanest” measure of the defendant’s capacities at the time of their arrest.
If you are an attorney with a case involving a possibly invalid Miranda waiver, please feel free to contact me.
If you would like more information about false confessions and Miranda waivers, I recommend reading the work of Bruce Frumkin, Ph.D.
