Miranda Rights and Wrongs:: Matters of Justice
Miranda Rights and Wrongs:: Matters of Justice
Miranda Rights and Wrongs:: Matters of Justice
Matters of Justice
Richard Rogers & Eric Y. Drogin
J
udges are likely to respond with outright skepticism when
the validity of a Miranda waiver is questioned because the led to assume that there exists only one, simply written
defendant claimed to be merely “depressed” or “anxious” at Miranda warning that is applied uniformly across the United
the time of arrest. They may be reassured that extensive research States. This uniformity myth is shattered by research data that
on Miranda abilities has largely borne out this perspective. have identified more than 1,000 unique variations, varying in
Symptoms of depression and anxiety, by themselves, do not length by more than 500 words, with reading levels that range
increase the chances of impaired Miranda comprehension or from grade three to post-college.4
reasoning. For instance, defendants with even moderate to In 2011, Rogers5 proposed the “general neglect hypothesis”
severe depression have roughly the same odds of impaired in an effort to explain why Miranda issues were routinely over-
functioning as those with negligible depression. Only at the looked by the criminal courts—and in particular by the
extreme levels of depression does a pattern of deficits emerge defense bar. Based on very conservative estimates, thousands
for Miranda comprehension but not for Miranda reasoning.1 of arrestees with severely impaired Miranda abilities6 are over-
Likewise, a similar pattern is observed even for certain psy- looked or disregarded by defense attorneys each year. This sec-
chotic symptoms, such as delusions and paranoid distrust.2 On tion examines three fundamental Miranda myths that are
reflection, both legal and mental-health professionals alike can strongly linked to the general neglect hypothesis. For example,
discern a plausible explanation for this occurring. Since most legal professionals are likely to overlook Miranda issues if they
delusions and persecutory thoughts do not involve the police believe they are irrelevant (i.e., “just a formality” because
or the criminal-justice system, these symptoms are likely to everyone already knows them).
have only a peripheral influence on Miranda-relevant abilities.
Only when psychotic symptoms become truly pervasive (i.e., 1. JUST A FORMALITY
extremely severe) are they likely to impair Miranda compre- One general misassumption is rooted in the notion that
hension and reasoning. nearly all Americans have a working knowledge of the Miranda
This introduction underscores several related points. First, warnings. If this were true, then the communication of
judges would be correct in not equating even serious mental Miranda rights would aptly be captured by the phrase, “just a
disorders with invalid Miranda waivers. Second, Miranda formality.” Although Leo7 was critical of police practices in
issues—as we consider the totality of the circumstances—must downplaying the importance of Miranda warnings in what he
be viewed as much more complex and nuanced than any sim- has characterized as a “confidence game,” arresting officers
ple association of symptoms with functional legal abilities. may genuinely see these advisements as nothing more than a
Judges, prosecutors, and defense counsel alike may share necessary bureaucratic exercise—mandated by the Supreme
similar misconceptions regarding the general public’s knowledge Court—for defendants who are already fully apprised of their
and understanding of Miranda. For instance, faulty perceptions rights. Simply put, if suspects already know their Miranda
abound with respect to both the content and the meaning of rights, then anything more than the most cursory advisement
Miranda warnings. The next two sections address fundamental represents not only an unnecessary effort but also a potentially
misunderstandings as they apply to Miranda comprehension damaging distraction at a critical moment in the investigation.
and reasoning. We begin with comprehension, focusing first on Judges will recognize instantly why the commonsensical
fundamental myths about Miranda advisements. premise for knowing Miranda warnings seems incontestable:
Residents of the United States are constantly bombarded with
THREE FUNDAMENTAL MYTHS ABOUT MIRANDA snatches of stereotyped Miranda recitations via countless police
WARNINGS dramas and various outlets of the public media. The litany
Rogers, Shuman, and Drogin3 first articulated major funda- almost inevitably begins with “you have the right to remain
mental myths that threaten the integrity of Miranda warnings silent.” Based on this compelling yet false premise, many attor-
8. See Rogers et al., supra note 3. cerned about their immediate circumstances than the long-term
9. Richard Rogers, Chelsea E. Fiduccia, Eric Y. Drogin, Jennifer A. consequences; see Hayley L. Blackwood, Richard Rogers, Jennifer
Steadham, John W. Clark III & Robert J. Cramer, General Knowl- A. Steadham & Chelsea E. Fiduccia, Investigating Miranda Waiver
edge and Misknowledge of Miranda Rights: Are Effective Miranda Decisions: An Examination of the Rational Consequences, INT’L J. L.
Advisements Still Necessary? 19 PSYCHOL. PUB. POL’Y & L. 432 & PSYCHIATRY (in press).
(2013). 15. Richard A. Leo, Questioning the Relevance of Miranda in the Twenty-
10. Data from 945 American jurisdictions found that 81.8% included First Century, 99 MICH. L. REV. 1000, 1003 (2001).
continuing rights as the fifth component. Richard Rogers, Lisa L. 16. The overall average was 233 words per minute. See Brent Snook,
Hazelwood, Kenneth W. Sewell, Kimberly S. Harrison & Daniel Joseph Eastwood & Sarah MacDonald, A Descriptive Analysis of
W. Shuman, The Language of Miranda Warnings in American Juris- How Canadian Police Officers Administer the Right-to-Silence and
dictions: A Replication and Further Analysis, 32 LAW & HUM. BEHAV. Right-to-Legal Counsel Cautions, 52 CAN. J. CRIMINOLOGY & CRIM.
124 (2008). JUST. 545 (2010).
11. Based on a national survey, 84.6% of Miranda warnings ask for a 17. Carol K. Sigelman, Edward C. Budd, Cynthia L. Spanhel & Carol
self-appraisal of arrestees’ understanding. See Richard Rogers, A J. Schoenrock, When in Doubt, Say Yes: Acquiescence in Interviews
Little Knowledge Is a Dangerous Thing . . . Emerging Miranda with Mentally Retarded Persons, 19 MENTAL RETARDATION 53
Research and Professional Roles, 63 AM. PSYCHOL. 776 (2008). (1981).
12. The difference lies between “meta-ignorance” (awareness of what 18. Nigel Beail, Interrogative Suggestibility, Memory and Intellectual
is not known) and “meta-knowledge” (awareness of what is Disability, 15 J. APPLIED RES. INTELLECTUAL DISABILITIES 129 (2002).
known); see Rogers, supra note 5. 19. See generally ROGERS & DROGIN, supra note 1.
13. See Rogers et al., supra note 9. 20. Berghuis v. Thompkins, 130 S. Ct. 2250 (2010).
14. Because of temporal discounting, many offenders are more con-
21. Blackwood et al., supra note 14. Emily V. Robinson, An Investigation of Implied Miranda Waivers
22. Ulric Neisser, On the Trail of the Tape-Recorder Fallacy, 11 SOC. and Powell Wording in a Mock-Crime Study, LAW & HUM. BEHAV. (in
ACTION & L. 35 (1985). press).
23. Stephen O. Lilienfeld, Steven J. Lynn & Barry L. Beyerstein, The 28. Rogers et al., supra note 9.
Five Great Myths of Popular Psychology: Implications for Psy- 29. Id.
chotherapy, in RATIONAL AND IRRATIONAL BELIEFS: RESEARCH, THEORY, 30. Richard Rogers, Jill E. Rogstad, Nathan D. Gillard, Eric Y. Drogin,
AND CLINICAL PRACTICE 313 (Daniel David, Stephen J. Lynn & Hayley L. Blackwood & Daniel W. Shuman, “Everyone Knows
Albert Ellis eds., 2010). Their Miranda Rights”: Implicit Assumptions and Countervailing
24. See ROGERS & DROGIN, supra note 1, at 16. Evidence, 16 PSYCHOL. PUB. POL’Y & L. 300 (2010).
25. Blackwood et al., supra note 14. 31. See generally ROGERS & DROGIN, supra note 1.
26. For further commentary, see Richard Rogers, Hayley L. Black- 32. See Rogers et al., supra note 10.
wood, Chelsea E. Fiduccia, Jennifer A. Steadham, Eric Y. Drogin 33. This process is referred to as “temporal discounting.”
& Jill E. Rogstad, Juvenile Miranda Warnings: Perfunctory Rituals or 34. Arrestees do not even need to be asked or provide any verbal indi-
Procedural Safeguards? 39 CRIM. JUST. & BEHAV. 229 (2012). cation of their waiver. See Rogers et al., supra note 10.
27. See Nathan D. Gillard, Richard Rogers, Katherine R. Kelsey & 35. State v. Benoit, 126 N.H. 6, 14 (1985).
36. Id. at 22. 42. Colorado v. Connelly, 479 U.S. 157 (1986).
37. Id. Both modalities should be used: “The following is to be read and 43. Interestingly, in Edwards v. Arizona, 451 U.S. 477 (1981), the
explained by the officer, and the child shall read it before signing.” Supreme Court of the United States appeared to de-emphasize the
38. Averages are derived from the database supporting RICHARD ROGERS, intelligent prong in holding that a basic awareness was sufficient
KENNETH W. SEWELL, ERIC Y. DROGIN & CHELSEA E. FIDUCCIA, STAN- for a valid Miranda waiver.
DARDIZED ASSESSMENT OF MIRANDA ABILITIES (SAMA) PROFESSIONAL 44. See ROGERS & DROGIN, supra note 1, at 93.
MANUAL (2012). 45. Thomas Grisso, The Competence of Adolescents as Trial Defendants,
39. See State v. Lanning, 5 Wash. App. 426, 487 P.2d 785 (1971), and 3 PSYCHOL. PUB. POL’Y & L. 3 (1997).
Fare v. Michael C., 442 U.S. 707 (1979). 46. Grisso and his colleagues also proposed a more elaborate model
40. Richard Rogers, Chelsea E. Fiduccia, Emily V. Robinson, Jennifer with eight components. See Thomas Grisso, Paul S. Appelbaum,
A. Steadham & Eric Y. Drogin, Investigating the Effects of Repeated Edward P. Mulvey & Kenneth Fletcher, The MacArthur Treatment
Miranda Warnings: Do They Perform a Curative Function on Common Competence Study II: Measures of Abilities Related to Competence to
Miranda Misconceptions? 31 BEHAV. SCI. & L. 397 (2013). Consent to Treatment, 19 LAW & HUM. BEHAV. 127 (1995).
41. Id. Overall, 35 evidenced at least two fewer misconceptions, 47. Iowa v. Tovar, 124 S. Ct. 1379, 1387 (2004).
whereas 55 showed no improvement at all, or even a worse perfor- 48. Blackwood et al., supra note 14.
mance.
TABLE 1: DEFENDANTS’ ABILITIES TO REASON ABOUT WAIVING AND EXERCISING THEIR MIRANDA RIGHTS
49. ROGERS ET AL., supra note 38. 52. Richard Rogers, Emily V. Robinson & Sarah A. Henry, Feigning
50. Id. The greatest concerns involved the benefits of waiving (45%) Deficits in Legal Abilities: Development of Detection Strategies for the
or exercising (45%) the right to silence, plus the risk of waiving SAMA and ILK, paper presented at the annual conference of the
the right to counsel (48%). American-Psychology Law Society, San Diego (March 2015).
51. Id. Using a detection strategy known as the “performance curve,” 53. JOSEPH C. HYNES, REPORT ON 102B: JUVENILE MIRANDA RIGHTS
the SAMA Miranda Vocabulary Scale expects to find that defen- (2010), www.abanet.org/crimjust/policy/midyear2010/102b.pdf.
dants will have much greater success at easier items than more dif- 54. AMERICAN BAR ASSOCIATION, RESOLUTION 102B: JUVENILE MIRANDA
ficult ones. Feigners often do not pay attention to item difficulty RIGHTS (2010), www.abanet.org/crimjust/policy/midyear2010/
when faking. 102b.pdf.
55. See Rogers, supra note 11, at 782. 57. Depending on the jurisdiction, judges may wish to avoid poten-
56. See ROGERS & DROGIN, supra note 1. tially polarizing issues between defense and prosecution.
58. John A. Schinka & Randy Borum, Readability of Adult Psy- 62. Miranda v. Arizona, 384 U.S. 436, 467-68 (1966).
chopathology Inventories, 5 PSYCHOL. ASSESSMENT 384 (1993). 63. This quote is from the current AJA president, Judge Brian
59. WILLIAM H. DUBAY, THE PRINCIPLES OF READABILITY (2004). MacKenzie, in the “President’s Message” on the home page of the
60. See ROGERS & DROGIN, supra note 1, at 21-45 (“An Ounce of Pre- American Judges Association, http://aja.ncsc.dni.us/index.html.
vention”). 64. An excellent example is PAMELA CASEY, KEVIN BURKE & STEVE
61. Spanish Miranda warnings sometimes include mistranslations and LEBEN, MINDING THE COURT: ENHANCING THE DECISION-MAKING
awkward usages. See Richard Rogers, Amor A. Correa, Lisa L. PROCESS (2012), http://aja.ncsc.dni.us/pdfs/Minding-the-
Hazelwood, Daniel W. Shuman, Raquel C. Hoersting & Hayley L. Court.pdf. As a possible parallel to informed-waiver decisions, it
Blackwood, Spanish Translations of Miranda Warnings and Totality provides examples of how benchcards and other decisional tools
of the Circumstances, 33 LAW & HUM. BEHAV. 61 (2009). can facilitate judicial decision making.