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ABA February 2015 Continuing Legal Education Notes

by merlin on February 28th, 2015
  • Sumo

This webinar covered Miranda statements, which was especially useful:

 

Mirandized Statements: Successfully Navigating the Legal and Psychological Issues

ABA CLE Webcast Notes – February 2015

Amy Meyerson (Attorney), Eric Drogon (Attorney and Harvard Psychiatrist), Carol Spaderna (Aberstwyth University law and Psychologist)

What’s the big deal?

  • To paraphrase Chris Rock – police can have plenty of evidence, but they want the confession.
  • It reduces “reasonable doubt”

Named for Ernesto Miranda (in 1963, confessed)

There are 10 Key Myths and Misconceptions:

  1. They are uniform warnings (if info entirely comes from TV and media ,then this is prevalent – Miranda only provided for “clear and unequivocal words OR THEIR EQUIVALENT” to get the point across)
  2. They are brief and easily-understood (there is a range in length and difficulty of these warnings)
  3. Miranda warnings for juveniles are simpler than regular advisements (NOT TRUE – 300 different versions, including explaining the role of the judge, etc.; for children, average required is a 9th grade reading level, versus an 8th grade reading level for adult warnings). There is a great checklist in the materials for attorneys to use when they represent juveniles and a Miranda warning becomes an issue (as to what impact the warning might have in the case, and whether an evaluation is needed)(The idea is to get valid waivers)
  4. Spanish language Miranda warnings are NOT accurate and complete translations!!!!!
  5. “Practice makes perfect” with Miranda warnings (idea that a person who has been repeatedly arrested understands the warnings by that point)
  • In fact, the OPPOSITE is true – folks with 50+ past arrests tended to have no better comprehension than those with very few arrests
  1. Defendants have an accurate appraisal of their Miranda knowledge (lack of knowledge about their own lack of knowledge!!!!!!).
  2. Validity of Miranda is a moot point because of other incriminating evidence (50% of convictions hinge on a confession, though)! Again – CONFESSION
  3. Police deception is impermissible just prior to Miranda

CONTRARY – Police are allowed to lie.

  1. Defendants with psychiatric histories provide invalid Miranda This is like thinking a person who is voluntarily intoxicated can’t be found responsible for a crime.
  2. Waiver decisions are based on solid decision-making (contrarily, Defendants tend to abandon that solid reasoning when they are being questioned).

  • Folks don’t even remember everything – only 73% of people polled could recall being advised about their right to silence!!!!
  • About 20% actually believe an unsigned waiver is protection!
  • 55% of juvenile defendants think they will have to pay for their defense no matter what.
  • MOST of them (WRONGLY) believe that if they have started talking, they have permanently waived their right to silence!!!

 

Berghuis (2010):      Defendant must invoke his right to remain silent AND he loses that right if he answers questions (but, as noted above, can AFFIRMATIVELY REINVOKE).

 

Commonwealth v. Jackson, 432 Mass. 82 (Massachusetts, 2000):   State has to affirmatively prove waiver was voluntary

What do experts assess?

Mental health experts:

  • Neurological examination
  • Brain health imaging
  • Neuropsychological testing (ex. Weschler Memory Scale, etc.)
  • Communication/Academic Scales Screening (ability to understand the written word; at what level are they functioning; how does the individual actually work with language?)
  • Various intelligence tests (ex. Stanford-Binet, etc.)
  • There ARE personality/intelligence tests for juveniles!

There IS a test that answers level of comprehension of Miranda rights.

  • Comprehension of Miranda rights – tested by IAU (grandparent of other tests); CMR (Comprehension of Miranda Rights test); CMR-R – Recognition component; CMV – Comprehension of Miranda Vocabulary; test to determine detainee understanding of rights in INTERROGRATION
  • The MRCI is a thorough test, appears (takes into account current innovations since the IAU)
  • SAMA (Standardized Assessment of Miranda Abilities) – includes multiple different kinds of tests, such as reasoning skills, etc.

Experts

Remember:         Expert needs to review the ACTUAL material;

Remember:         The completeness of the expert’s review is CRITICAL (Did you review this source?  How about that source?)

Ethical codes of psychiatry are implicated by incompetence.

Got to make sure the expert actually had direct, hands-on experience with the person themselves and with the administration of the tests themselves (manner they should be administered, etc.).

  • Did they check only ONE aspect of Miranda warning, or did they ask about EACH right it informs about?
  • Must be BOTH testing AND interview
  • Make sure expert SCORED the tests given accurately (other side did the same)

In Miranda, they expressly allowed variation of language, but that equivalents are fine.

Stating “No” in response to the idea that you don’t understand the Miranda rights, it doesn’t necessarily bring the inquiry to a halt; all it really does is add a level of inquiry to the trial.

In some jurisdictions, State insists on sending Defendant to State hospital before defense is permitted to have their experts give tests.

For it to be best:

To get at the truth, must have a warning that is:

  1. Delivered both in writing and orally;
  2. Delivered in most basic language that conveys components;
  3. Stands up under inquiry (admissibility is the goal); and
  4. Has a follow-up to ensure person understands it.

Expert crosses a line that isn’t helpful when they start opining on whether the police “did it right”.  This exceeds their mandate, and they aren’t necessarily qualified.

 

 

 

 

 

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