Capacity to Waive Miranda Rights
The right to remain silent and have access to counsel during custodial interrogation (called by various names among English-speaking jurisdictions, including Miranda rights in the U.S.) is fundamental to the laws of the U.S., Canada, U.K., Australia and New Zealand. Informing suspects of these rights and Cautions is intended to ensure a level playing field between individuals and the police, although this is not always the case–particularly when suspects, who may not fully comprehend their rights, waive them and try to engage with the government unprotected.
Chapter thirteen of the Litigator’s Handbook of Forensic Medicine, Psychiatry, and Psychology , authored by Heather Zelle, J.D., Ph.D. and Sharon Kelley, J.D., Ph.D. comprehensively covers the topic of waiver and comprehension from the perspectives of social science and the law–and in particular, proffering expertise on the subject in court. It begins with a review of interrogation and confession law in each of the five jurisdictions, describing similarities and differences, the various legal sources, when they apply, the standards that govern the admissibility of statements and how these rights operate differently in each country. Next, the social science of rights’ wavers and suspect-and situation-specific factors related to comprehension are explained, followed by thorough guidance on the admission (or exclusion) of a waiver and comprehension expert.
Particular topics covered, include:
U.S. law–Miranda v. Arizona (1966)
U.K. law–Police and Criminal Evidence Act (PACE, 1984)
Canadian law–Canadian Charter of Rights and Freedoms (1982)
Overview of the science applicable to rights comprehension and the Miranda waiver
Social science research of suspect-specific factors, such as intelligence, age, developmental factors, education, mental illness, psychological characteristics, prior experience with criminal justice system & Miranda warnings and innocence and guilt
Australian and New Zealand law–Crimes (Investigation of Commonwealth Offences) Amendment Act of 1991
Identification of relevant psycholegal constructs
Admissibility of psychological assessment instruments and expert testimony thereon
Social science research of situation-specific factors, including the wording of the warning, method of delivery, stress and presence of a parent or guardian
In addition to a thorough literature review and a framework for comprehensively and effectively guiding an expert through direct examination (and challenging one on cross), chapter thirteen of the Litigator’s Handbook on Capacity to Waive Miranda Rights also provides illustrative court cases that demonstrate: (1) when science in this area was properly applied; and (2) when the science of waiver and comprehension was poorly applied. With its clear and complete treatment of this important area of criminal law, this chapter is an invaluable resource for legal scholars, practicing attorneys, forensic mental health professionals and policy-makers charged with responsibility for ensuring suspect rights are protected and/or properly waived.
