If you are arrested, do you know your rights? Psychologist says most people don't

Monday, July 7, 2008

DENTON (UNT), Texas -- Thanks to thousands of episodes of "Law and Order" and its spinoffs airing almost daily on cable networks, most Americans instantly recognize "You have the right to remain silent..." as the beginning of a Miranda warning.

But few Americans realize that nearly 900 variations of the Miranda warning are being used by federal, state and county jurisdictions across the United States, with the warning ranging from 21 to 408 words.

And if a survey of college undergraduates is an indication, few Americans are truly knowledgeable about their Miranda rights, according to a University of North Texas forensic psychologist.

Dr. Richard Rogers, professor of psychology, contacted police officers and attorneys in 945 different jurisdictions to determine the comprehensibility of the Miranda versions. His research has been funded by more than $800,000 in grants from the National Science Foundation's Law and Social Sciences Program.

Rogers notes that incomprehensible may lead to inadmissible confessions as well as violations of constitutional protections.

"Both prosecutors and defense attorneys are strongly vested in ‘getting it right,'" he says.

The Miranda warnings resulted from Miranda v. Arizona, a 1966 U.S. Supreme Court case. By a 5-4 majority, the justices decided that the Constitution's Fifth Amendment prohibition against self-incrimination applied to an individual who was in police custody or "deprived of his freedom of action in any significant way." To protect Americans against self-incrimination, the court ruled that, before being questioned, a person suspected of a crime must be informed of his or her right to be silent and to have an attorney. However, the decision determined only the components of the Miranda warning -- not the actual language.

"Miranda warnings have five components: right to silence, the risk of breaking silence, the right to an attorney, the right to free legal counsel and the right to assert these rights at any time," Rogers says. "However, the wording of some of these components is vague. In one study, 20 percent of defendants said they didn't want a court-appointed attorney because they couldn't afford it. They didn't understand the court-appointed attorney was free."

Rogers recently surveyed 100 UNT undergraduates about their knowledge of the Miranda warnings. He discovered that almost 64 percent displayed two or more fundamental errors in their understanding of the warnings.

Almost 28 percent of these students, he says, were not aware that the Constitution guarantees their right to silence.

"They believe that you're damned if you do speak up and damned if you don't speak up. They think their silence would be viewed at trial as incriminating evidence because they had something to hide," Rogers says. "The courts assume that people believe that silence cannot be used against them, but less than 1 percent of jurisdictions actually disclose this information in their Miranda warning."

The undergraduates in the survey were also confused about the right to counsel component of the warning. Almost 35 percent believed law enforcement officials could continue an interrogation after a suspect requests an attorney.

"Many students said that you cannot stop and ask for an attorney after you start talking to police," Rogers says.

He notes that the student survey, plus research on defendants, show that the criminal justice system needs to reject the idea that all Americans are knowledgeable about Miranda warnings and "begin determining what to communicate, how to communicate and what to assess on an individual basis."

"When privileged and highly educated members of our society display such deficient understanding, how is the garden-variety detainee going to fare?" he says.

The 2003 National Assessment of Adult Literacy prison sample, which assessed 1,173 prisoners in 30 states, determined that 70 percent of the inmates read at the sixth-grade reading level or below.

Miranda warnings, however, range in their overall reading level from second grade to post college, Rogers discovered.

"The overall reading levels are sometimes deceptive. The average reading level for the ‘right to silence' component is grade 5 to 6, but the average for the legal counsel component is grade 10," says Rogers, who also surveyed mentally challenged defendants on their abilities to understand the warnings. He discovered that while the lowest-functioning defendants could comprehend only 24 percent of a sample Miranda warning, even the highest-functioning defendants "could only muster an average comprehension rate of 66 percent."

"Many legal terms, like ‘waive,' ‘exercise,' ‘appointed' and ‘counsel,' typically require the equivalent of a 10th- or even a 12th-grade education," he says.

The Miranda warnings that Rogers gathered in his study included 122 warnings used specifically for juveniles. He discovered that these warnings tended to be more than 50 words longer than versions intended for all age groups, and required the same reading level. Past research, however, has shown juvenile offenders typically function four years below expected achievement levels.

In California v. Prysock in 1981, the Supreme Court ruled that Miranda warnings don't have to be given in precise wording, "as long as a fully effective equivalent conveying the intended content is there."

As a possible solution, Rogers and his research team are now developing simplified warnings -- below sixth-grade reading level -- that he says can be substituted for warnings that are more than 150 words long "and require partial college education to understand."

"Clinging to legally and scientifically unsound Miranda warnings will continue to result in unacceptable consequences, including the unwarranted confinement of the innocent and failure to confine the guilty," Rogers says. "Police chiefs, generally speaking, see the value of Miranda warnings and don't believe they impede their ability to prosecute."

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