Miranda Rights Research Articles

Miranda, Surreptitious Questioning, and the Right to Counsel

This article analyzes police surreptitious questioning of a suspect following invocation of the Miranda right to counsel. I conclude that although never addressed by the Supreme Court, this tactic should be permissible. The article focuses on the intersection of the rule established by Illinois v. Perkins, where the Supreme Court held surreptitious questioning of a suspect prior to Miranda invocation does not implicate the Miranda warning and waiver requirement, and the Edwards/Minnick rule, where the court held as per se invalid any Miranda waiver resulting from police re-initiation of questioning following an invocation of the Miranda right to counsel. This brings into focus the question of which of these two rules takes precedence in the post-invocation surreptitious questioning situation? I reach my permissibility conclusion by focusing on the competing objectives of the Miranda right to counsel and the Sixth Amendment “Massiah” right to counsel. This analysis indicates that only the latter rule is intended to protect the suspect’s interest in effective representation by prohibiting all police questioning, whether or not the suspect was aware he was dealing with police. In contrasts, the former is narrowly directed at protecting the suspect from the especially potent inherent coercion associated with custodial interrogation. The Miranda right to counsel is therefore a mechanism to neutralize this coercion, which exists only when the suspect is aware he is being confronted by police. As a result, surreptitious questioning does not produce the necessary inherent coercion to implicate Miranda, and therefore cannot qualify as police exploitation of a suspect who has previously indicated his need for the presence of counsel to offset the coercive pressure of custodial interrogation. The article then shows how the Court’s Dickerson decision bolsters this conclusion. That decision emphasized the need to limit the impact of Miranda to the core concern that motivated the adoption of the ruling: protection from the pressure of incommunicado police interrogation. While acknowledging that post-invocation surreptitious questioning does seem to exploit a suspect who has expressed his desire to deal with police only with assistance of counsel, I conclude that while a close call, this is ultimately a permissible tactic.

Miranda Rights Comprehension Instruments

The Miranda Rights Comprehension Instruments (MRCI) constitute a revision of Grisso's Instruments for Assessing Understanding and Appreciation of Miranda Rights (IAUAMR) original series of tests. We believe that the MRCI represents an improvement in many respects, including (but not limited to) a thorough discussion of admissibility issues in the test manual, simplification of language, the addition of a fifth warning, and updated normative data. We also review some potential challenges associated with the revised MRCI tests. These concerns include inconsistent and confusing terminology in the test manual, potentially nonrepresentative normative data, problematic reliability estimates, issues with scoring criteria for the CMR-II, item and test content representativeness for specific tests, and recommendations on how test effort and malingering should be assessed via the CMR-R-II. We conclude with a series of recommendations for forensic use of the MRCI.

Real Interrogation: What Actually Happens When Cops Question Kids

Although the Supreme Court repeatedly cautioned that youthfulness adversely affects juveniles' ability to exercise Miranda rights or make voluntary statements, it endorsed the adult waiver standard—knowing, intelligent, and voluntary—to gauge juveniles' Miranda waivers. By contrast, developmental psychologists question whether young people understand or possess the competence necessary to exercise Miranda rights. This article analyzes quantitative and qualitative data of interrogations of three hundred and seven (307) sixteen- and seventeen-year old youths charged with felony offenses. It reports how police secure Miranda waivers, the tactics they use to elicit information, and the evidence youths provide. The findings bear on three policy issues—procedural safeguards for youths, time limits for interrogations, and mandatory recording of interrogations.

Neuropsychological Evaluation of Competency in Criminal Forensic Contexts

Competency issues can arise at any point beginning with an individual’s initial interaction with the justice system until the same individual is facing the imposition of a sentence. Neuropsychologists are commonly introduced to the criminal arena through referrals related to competence issues, and much can be gained from understanding how cognitive and psychological functioning can impact an individual’s ability to understand and appreciate current circumstances. The present article focuses on three less frequently explored domains of competency, including competence to waive Miranda rights, competence to consent to or refuse treatment, and competency for execution. Pertinent diagnostic considerations are discussed, and relevant legal standards and ethical issues are described. Lastly, evaluation procedures for each type of competence evaluation are discussed. This primer on competency assessment offers a review of the current practices, and limitations, in this burgeoning intersection of law, brain–behavior relationships, and psychology.

General knowledge and misknowledge of Miranda rights: Are effective Miranda advisements still necessary?

General knowledge and misknowledge of Miranda rights: Are effective Miranda advisements still necessary?

A United States Forensic Sample for the Gudjonsson Suggestibility Scales

The Gudjonsson Suggestibility Scales (GSS) is a valuable test to use as part of a comprehensive assessment of psychological and interrogative factors relevant to a defendant's vulnerability to giving a false or involuntary confession. One limitation of the test is that the manual only provides information for samples from Iceland and Great Britain. This report describes the results of 334 individuals in the United States, who were administered the tests as part of an evaluation to assess confession-related issues in a forensic context (i.e., capacity to waive Miranda rights or vulnerability in providing a false or involuntary confession). This forensic sample includes both juveniles and adults. Results are consistent with Gudjonsson's British and Icelandic samples, in which the Yield 1 score is more affected by intellectual and cognitive variables, but Shift and, to a lesser extent, Yield 2 scores are more related to emotional and personality characteristics.

The Supreme Court revisits (and weakens) Miranda yet again: a critical examination of the 2009 term cases

During the 2009 term the US Supreme Court issued decisions in three cases that involved the interpretation and application of the Miranda warnings. In this article, we examine these decisions and argue that in these cases the Supreme Court erred in allowing the confession obtained by the police to be used as evidence. In a companion article written by our colleague, Professor Martin O’Connor, the opposite perspective is argued: the Supreme Court decision in both Shatzer and Powell is correct as both a matter of law and policy. These two articles are intended to be read together, to provide a ‘point-counterpoint’ discussion of these significant Supreme Court decisions.

The Grisso Tests for Assessing Understanding and Appreciation of Miranda Warnings with a Forensic Sample

The Instruments for Assessing Understanding and Appreciation of Miranda Rights, hereafter referred to as the Grisso tests, are widely used and recommended psychological tests designed to help assess ability to understand and appreciate Miranda warnings. This article describes the results of these tests administered to 439 individuals who participated in an evaluation to assess knowing and intelligent waiver of Miranda warnings during police questioning. This study is the first of its kind using a large sample of defendants who were referred for an assessment of capacity to waive Miranda rights. This forensic sample includes both juveniles (176) and adults (263), and the results are quite similar to the original Grisso norms. There are strong correlations between performance on these tests and IQ as well as between performance and age. This sample provides a broader foundation for users of the Grisso tests and answers some of the initial criticism of the instruments.

Waiving Goodbye to Miranda: Better Protection for Mentally Ill and Mentally Retarded People is Better for Us All

In 1966, the Supreme Court decided Miranda v. Arizona, 384 U.S. 436, to protect criminal suspects from compelled self incrimination during inherently coercive custodial interrogations. Although the Supreme Court has gradually narrowed its Miranda decision, suspects must still generally understand each of the four Miranda warnings to validly waive their Miranda rights and confess. While most people do understand the Miranda warnings, there is a large number of people, including most mentally ill and mentally retarded people, who simply do not understand the warnings. Thus, one would expect courts to normally find the waiver of Miranda rights by mentally ill and mentally retarded people to be invalid. But that is not the case.In a survey of Courts of Appeals cases involving mentally ill and mentally retarded defendants, all were found to have knowingly and intelligently waived their Miranda rights. The Courts of Appeals has set such a low bar for waiving Miranda rights that mentally ill and mentally retarded people are no longer protected from compelled self incrimination during custodial interrogations. Change is needed to better protect these vulnerable people. The change that best protects mentally ill and mentally retarded people is excluding all custodial confessions while allowing the physical fruits of voluntary custodial statements as evidence. This change balances our right against compelled self incrimination with the interests of justice, better protecting us all.

Human Rights and Counterterrorism: A Contradiction or Necessary Bedfellows?

Ten years after the 9/11 terrorist attacks, questions remain regarding the relationship between human rights and counterterrorism. The historical track record of the Executive Branch, Supreme Court, and Congress in this vein is troubling. While the contradiction suggested in this Essay's title need not be the case it is, nevertheless, the persistent reality in American history.This Essay assesses the current relationship between human rights and counterterrorism. In doing so, it reflects on wartime measures implemented by presidents throughout U.S. history and recommends a way forward that facilitates more effective protection of human rights without impinging on legitimate national security considerations. Many counterterrorism measures adopted in the aftermath of 9/11, including torture, rendition, indefinite detention, and denial of habeas corpus, reflect a fundamental denial of human rights. Furthermore, evidence that the circumstances do not justify such extraordinary measures illustrate that the tension between human rights and counterterrorism requires constant vigilance. This was recently highlighted when Attorney General Eric Holder suggested that individuals suspected of involvement in terrorism be denied Miranda rights. In recommending “ways forward” this Essay analyzes how operational counterterrorism measures can meet the recommended two-part test of respect for human rights and enhancing national security without unduly minimizing one at the expense of the other. It concludes that crisis points involving national security concerns are precisely when the Judiciary must engage in active judicial review in safeguarding basic rights.

Juvenile Miranda Warnings

The American Bar Association, via its newly adopted policy, seeks fundamental changes in procedural justice with respect to juvenile Miranda warnings. It calls for understandable Miranda warnings to educate youth in custody regarding the relevant Constitutional protections. In surveying prosecutors and public defenders, the authors collected 293 juvenile Miranda warnings that are intended specifically for youthful offenders. Length and reading levels were analyzed and compared to an earlier survey. Nearly two thirds (64.9%) of these warnings were very long (> 175 words), which hinders Miranda comprehension. In addition, most juvenile warnings (91.6%) require reading comprehension higher than a 6th-grade level; 5.2% exceed a 12th-grade reading level. Combining across two surveys, more than half of juvenile Miranda warnings are highly problematic because of excessive lengths or difficult reading comprehension. However, simple and easily read Miranda components were identified that could be used to improve juvenile advisements. Breaking new ground, Miranda waivers were examined for both juveniles and their parents/interested adults. Interestingly, most juvenile versions emphasized waivers in positive terms (e.g., “an opportunity”) and downplayed the potential for negative consequences.

Miranda Rights Comprehension in Young Adults With Specific Language Impairment

The purpose of this study was to determine whether citizens with language impairment understand legal rights as conveyed in Miranda warnings. Grisso's Instruments for Assessing Understanding and Appreciation of Miranda Rights (1998) was administered to 34 young adults, half of whom met the diagnostic criteria for specific language impairment (SLI). A correlational analysis of the relationship between language scores and Miranda rights comprehension was conducted, as were tests of differences between individuals with SLI (n = 17) and individuals without SLI. Language ability was positively correlated with overall performance on the Miranda measure. As a group, individuals with SLI were significantly poorer than their peers with normal language at defining Miranda vocabulary and applying Miranda rights in hypothetical situations. The group with SLI was also marginally less able to paraphrase Miranda sentences. Language impairment limits comprehension of Miranda warnings. As a result, citizens with language impairment are at risk of being denied their constitutional rights.

You have the right to understand: The deleterious effect of stress on suspects' ability to comprehend Miranda.

Miranda v. Arizona (384 U.S. 436, 1966) required that suspects be explicitly warned of the right to avoid self-incrimination and the right to legal representation. This research was designed to examine whether stress, induced via an accusation of wrong-doing, undermined or enhanced suspects' ability to comprehend their Miranda rights. Participants were randomly assigned to either be accused (n = 15) or not accused (n = 15) of having cheated on an experimental task in a two-cell between-subjects experimental design. Results supported the hypothesis that stress undermines suspects' ability to comprehend their Miranda rights. Participants who were accused of cheating exhibited significantly lower levels of Miranda comprehension than participants who were not accused of cheating. The theoretical processes responsible for these effects and the implications of the findings for police interrogation are discussed.

Getting it wrong about Miranda rights: False beliefs, impaired reasoning, and professional neglect.

Television and other media inundate Americans with innumerable yet fragmentary examples of Miranda warnings; however, familiarity born of repeated exposures cannot be equated with accuracy or understanding. The intended purpose of these warnings is to inform and caution rather than to pacify and reassure--a purpose that cannot be realized when most custodial suspects assume that they already know everything the law insists they should be told. Painstakingly negotiated Constitutional safeguards are further imperiled when attorneys, judges, and forensic evaluators are lulled into complacency by the commonly held misconception that everyone understands their Miranda rights. This article elucidates certain false beliefs and misapprehensions regarding Miranda comprehension and identifies widespread neglect of these issues by the professional community. (PsycINFO Database Record (c) 2011 APA, all rights reserved).

Psychiatric Aspects of Criminal Responsibility

Forensic psychiatry expertise may be useful to criminal courts in several ways, including evaluating competence (e.g., to stand trial, waive Miranda rights, confess, plead, represent oneself, or be sentenced), assessing responsibility for alleged criminal behavior, and clarifying mental or psychosocial factors that may mitigate criminal charges or the form and severity of punishment. This column focuses on psychiatric/psychological aspects of mitigation in criminal matters.

Richard Rogers: Award for distinguished contributions to research in public policy.

Presents Richard Rogers as the 2001 winner of the American Psychological Association Award for Distinguished Contributions to Research in Public Policy. "Richard Rogers casts a long shadow over the realm of psychological research with public policy implications. His achievements concerning criminal responsibility and malingering have been important and lasting, but his most uniquely impactful contribution to public policy is his enhancement of our understanding of the constitutional protections embodied in Miranda rights. His investigations have exploded the myth of a single, easily understood Miranda warning. The ramifications of this work are profound, especially for socially marginalized populations, and include its direct acknowledgment as the impetus for critical developments in American Bar Association policy on custodial interrogations." (PsycINFO Database Record (c) 2011 APA, all rights reserved).

Occupational Hazard: The Experience of a False Patient Accusation

Living through the events described below has been a learning experience for me and will likely influence the way I practice child psychiatry throughout my career. I hope that, by my sharing my experience in this essay, others will learn something, as well. On a Wednesday afternoon, 4 months before I was scheduled to complete my child psychiatry fellowship, I was summoned to my supervisor’s office. He informed me that a 9-year-old patient of mine had made an allegation that I had touched him inappropriately and had taken a picture of him inappropriately during an appointment 1 month earlier. I was told that the patient’s mother “did not believe him,” but “thought she should tell somebody.” The hospital elected to do an internal investigation, which included a risk-management person meeting with me later that day. During this meeting I stated that although I routinely do take the patient’s blood pressure in the presence of his or her parents, I otherwise never touch any of my patients, nor do I photograph patients. I added that I was quite sure I had never met with this patient apart from his mother, since he regularly met with a therapist on an individual basis, and most of the interaction during our psychopharmacology clinic visits was between me and the patient’s mother. The risk-management person asked whether I was working alone on the day in question. I told her that I could not remember whether someone such as a medical student or visiting resident was present with me that day and added that unfortunately I, like many others, did not routinely document their presence. She pointed out to me that I was finding myself in a situation that is “an occupational hazard” for anyone who works with children. I was told to continue with my clinical duties while the internal investigation was being conducted and did so dutifully the next day, with a renewed respect for defensive medicine. On Thursday evening, it dawned on me that, a few weeks earlier, a pediatric resident had “shadowed” me in my psychopharmacology clinic. Could this have been the same day that the misconduct allegedly took place? I certainly hoped so. On Friday morning, I decided to do some investigating on my own. I made some phone calls and was able to confirm that I indeed had a resident shadowing me on the day in question. I relayed my discovery to those involved in the internal investigation and was told that “things were looking good.” I breathed a sigh of relief. What had blindsided me less than 48 hours earlier appeared to be going away about as quickly as it had arrived. So I was doubly surprised when, several minutes later, the risk-manager called and said, “Oh my God, I just received a call informing me that the sheriffs are on the way to the hospital to arrest you. Do not go anywhere; I’ll be right over.” Moments later, I was being discreetly escorted down the freight elevator by hospital security staff. We met an unmarked sheriff’s car at the loading dock, where they proceeded to pat me down, put me in handcuffs, and take me to the station for questioning. I was placed in a secure room after having my belt and shoelaces safely removed, and I was then read my “Miranda rights.” They proceeded to try to question me, but I elected to follow the advice the risk-manager had given me shortly before I was handcuffed, and refused to answer any questions until I could speak to an attorney. After sitting in the secure room alone for about an hour (by far the worst part of the day) I was informed that the decision had been made to “book and release” me with orders to return for a “charging date” about 31⁄2 weeks later. The charge in question: first-degree sexual assault of a child—a felony. It turns out that “book-and-release” is a process that can take between 3 and 9 hours, involving a Received August 19, 2010; revised November 16, 2010; accepted November 30, 2010. The author’s contact information has been withheld because of the sensitive nature of the article contents. Any comments may be directed to the editors, at acadpsych@gmail.com. Copyright © 2011 Academic Psychiatry

The Dialogue Approach to Miranda: Minimizing Disputed Miranda Waivers in the Interrogation Room

The central tension in any disputed Miranda waiver case is that the evaluation of a suspect’s knowing, intelligent, and voluntary waiver is conducted months after the relevant time of the interrogation. The 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. Current Miranda practice involves essentially a one-way explanation of information. The police officer conveys Miranda rights to the suspect through a formalized recitation of the warnings. Usually this is done through a reading and signing of a pre-printed Miranda waiver card. As a result, courts cannot assess the extent to which a suspect knows, understands, and willingly relinquishes constitutional rights. This article proposes a new “dialogue approach” to resolve this tension and limit the ambiguity in disputed Miranda waivers, especially for vulnerable suspects. The dialogue approach would require suspects to confirm their understanding 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 rights and roles of the participants in the interrogation. It changes the Miranda waiver process from a one-way communication to a two-way dialogue. This approach would 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 can 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 re-conceptualized the contours of how police officers should give Miranda warnings. In Florida v. Powell, the Supreme Court held that Miranda warnings need not be universally formalized, so long as the officer reasonably communicates the rights to the suspect. In Berghuis v. Thompkins, and Montejo v. Louisiana, the Supreme Court required the suspect affirmatively to invoke the right to silence and the right to counsel. Prior to Berghuis, it would have been unnecessary for a suspect to say anything, let alone communicate (invoke) his understanding of his right to silence. Taken together, these cases allow for a more informal process that requires communication between the defendant and the interrogating officers. Significantly, these legal decisions have developed in parallel with a scientific consensus on psychological research about interrogations and confessions. The 2010 White Paper on Police Induced Confessions: Risk Factors and Recommendations sets forth the accepted scientific understanding of the issues surrounding disputed confessions. Among other subjects, the report addresses the centrality of understanding Miranda rights prior to waiver. The studies analyzed in the White Paper validate the techniques developed to evaluate a knowing and intelligent waiver of Miranda warnings, and provide guidance for this article’s proposed solution. With this backdrop, this article seeks to provide a new framework to address the prevailing problem of evaluating a knowing and intelligent waiver of Miranda warnings at the time of interrogation. The “dialogue approach” requires an inquiry of a vulnerable suspect’s comprehension of his or her constitutional rights at the time the Miranda warnings are read. Similar to the well established tests designed by Thomas Grisso for evaluating a knowing and intelligent waiver, the approach would require the suspect to explain in his or her own words what the rights mean. An interrogating officer would be required to ask the suspect 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. Part one of the Article sets out the legal issues involving a knowing, intelligent, and voluntary waiver of Miranda rights. Part two sets out the current scientific understanding of Miranda comprehension tests as well as their applicability and admissibility in court. Part three addresses the specific problem of waiver with vulnerable populations, and proposes a new framework through a dialogue approach. This section also examines a representative case that show cases a dialogue friendly interrogation. Part four addresses some of the constitutional concerns of this approach, as well as the practical difficulties in implementing any new Miranda requirement. The last section offers some suggestions to courts and law enforcement professionals in addressing the fundamental components to any valid waiver.

Involuntary Administration of Narcoanalysis, Polygraph Tests and BEAP Test Unconstitutional: Why?

Stephen, Sir James once stated that: “It is far pleasanter to sit comfortably in the shade rubbing red pepper in a poor devil’s eye than to go about in the sun hunting up evidence.” In this paper I intend to collect the reasons why the Indian Supreme Court banned the involuntary administration of three tests namely Narcoanalysis, Polygraph test and BEAP test in the latest case of Smt Selvi v. State of Karnataka. It is done by using cases from US and role of American Courts. It also investigates Indian precedents and Constitution of India for the purpose of Doctrine Self-Incrimination. It also talks about the scientific reliability of these tests. It also examines the condition of Indian investigative agency before the judgements along with role of media as media shows dangerous clippings of tests on national television. These tests made Indian investigation agencies lazy which resulted in shortcuts.Among other considerations, this article examines the delicate question about the Miranda Warning in Indian Context.

Psychometric Properties of the Miranda Rights Comprehension Instruments With a Juvenile Justice Sample

This article describes the psychometric properties of the Miranda Rights Comprehension Instruments, the revised version of Grisso's Miranda instruments. The original instruments demonstrated good reliability and validity in a normative sample. The revised instruments updated the content of the original instruments and were administered to a sample of 183 youth in pre- and postadjudication facilities. Analyses were conducted to establish the psychometric properties of the revised instruments and included similar analyses to those conducted by Grisso, as well as additional calculations (e.g., standard errors of measurement, intraclass correlation coefficients, Kappa coefficients). Results revealed sound psychometric properties, similar to those observed for the original instruments.