SOCW 6135

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Chapter 2

Miranda Rights Waiver

The competence of adult defendants to waive Miranda rights (Miranda v. Ari- zona, 1966) is the focus of the two case reports in this chapter. The principle applied to the first case concerns the value of nomothetic data, derived from groups and applied through general laws, to forensic assessment. The teaching point in this case will address the value of forensic assessment instruments (FAIs; Grisso, 1986) that have been developed and validated for a specific kind of forensic assessment. This will serve to highlight one of the important differences between the methodology of behavioral science and that of law: While science emphasizes nomothetic approaches, the law is inclined toward idiographic procedures focused on understanding a particular individual or event. The principle associated with the second case in this chapter—use idio- graphic evidence in forensic assessment—addresses how the forensic assessment process can also be improved through the use of case-specific information. The teaching point for the second case includes a discussion of the limits on the applicability of FAIs in some cases and of alternatives to using an FAI when such an instrument is not available or applicable.

Case 1

Principle: Use nomothetic evidence in assessing causal connection between

clinical condition and functional abilities

This principle concerns the value of applying scientific data gathered with groups to the assessment of domains that are relevant in FMHA. Researchers have gathered scientific data in several areas that are particularly applicable to FMHA. First, studies have provided data on the reliability and validity of vari- ous psychological measures, such as psychological tests, structured interviews, and specialized tools, used in FMHA. Second, scientific data provide an esti- mate of the base rates of relevant behavior (e.g., crime and violence) and the outcomes (e.g., legal decisions on child custody). Such data can be used by evaluators to make empirically grounded judgments regarding the relationship

17 Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from waldenu on 2021-02-07 21:09:14.

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18 • Forensic Mental Health Assessment

between capacities, behavior, and legal status. Third, the use of measures with known reliability and validity, and the incorporation of empirically derived base rates, can allow the forensic clinician to generate hypotheses that could help answer questions arising in the case being evaluated.

Support for the application of nomothetic data to FMHA can be found in several authoritative sources. In psychology, the Ethical Principles of Psycholo- gists and Code of Conduct (Ethics Code), published by the American Psychologi- cal Association (APA, 1992), contains several sections that are relevant. The Ethics Code emphasizes the value of scientifically derived knowledge: “Psychol- ogists rely on scientifically and professionally derived knowledge when making scientific or professional judgments or when engaging in scholarly or profes- sional endeavors” (p. 1600). The Ethics Code also emphasizes the importance of research on the applications of various tests or instruments, and it notes that the interpretation of psychological assessment results should be guided by re- search on the reliability and validity of the procedures used in the assessment (APA, 1992). Additional support for this principle can be found in the Spe- cialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991). The Specialty Guidelines provides less detailed support for this principle than the Ethics Code, but it emphasizes the impor- tance of current scientific information and applying such information to the selection of methods and procedures that are used in FMHA.

Legal support for the use of nomothetic data in FMHA can be found in several important cases. In Daubert v. Merrell Dow Pharmaceuticals (1993), the U.S. Supreme Court held that the Federal Rules of Evidence are applicable to scientific testimony. In its analysis, the Court’s opinion included dicta that of- fered criteria that could be used at the trial court level to decide whether the “reasoning or methodology underlying the testimony is scientifically valid” (Daubert v. Merrell Dow Pharmaceuticals, p. 592) and immediately applicable. These criteria include whether the basis for the opinion is testable, whether it has been tested, the known error rate, and other criteria such as level of general acceptance and indices of peer review. Subsequently, in Kumho Tire Co. v. Carmichael (1999), the U.S. Supreme Court held that a Daubert-like analysis may also be applied to evaluating experts who testify on the basis of technical or other specialized knowledge (rather than scientific expertise) regarding a matter before the court.

Because accuracy is important in FMHA, the forensic clinician should be able to describe the degree of empirical scientific support that has been demon- strated for a particular FMHA procedure. Accordingly, a forensic practitioner should consider procedures that have an established empirical base. Heilbrun (1992) has offered guidelines on the use of psychological tests in FMHA that underscore the importance of such empirical support. Relevant guidelines in- clude: (1) the test is commercially available and has a manual documenting its psychometric properties, (2) tests with a reliability coefficient of less than .80 would require explicit justification explaining why they are used, (3) the test’s relevance to the legal issue or an underlying psychological construct should be

Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from waldenu on 2021-02-07 21:09:14.

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Miranda Rights Waiver • 19

supported by validation research, and (4) objective tests and actuarial data combination are preferable when there are appropriate outcome data and a formula exists. Others (Greenberg & Brodsky, in press) have proposed guide- lines emphasizing that instruments used in FMHA should be reliable and valid to an extent adequate to the scope of the asserted statements, opinions, and conclusions.

The present case report provides a good example of the application of this principle. The purpose of the evaluation was to assess the individual’s ability to make a knowing, intelligent, and voluntary waiver of his Miranda rights following his arrest for robbery. The forensic clinician employed several differ- ent psychological tools that have an established empirical base. Consequently, the evaluator could describe the degree of empirical support for each of these FMHA procedures if this question arose during testimony.

The tests administered in the present evaluation included a standard intel- ligence test (Wechsler Adult Intelligence Scale, 3rd edition; WAIS-III), a test of basic academic abilities (Wide Range Achievement Test, 3rd edition; WRAT-3), a test relevant to neuropsychological functioning (Bender Visual Motor Gestalt Test; Bender Gestalt), and a projective personality test (The- matic Apperception Test; TAT). Consistent with this principle, the WAIS-III and the WRAT-3 have established levels of reliability and validity. The reliabil- ity and validity of the WAIS-III is firmly established in the field (see, e.g., Kauf- man & Lichtenberger, 1999). Similarly, the WRAT-3 has been extensively vali- dated (Wilkinson, 1993), and the Bender Gestalt has a reasonable research base. The TAT, while generally not scored and therefore not measured with respect to reliability, is a test for which a reasonable justification for use could be made on the basis that it can potentially provide information that cannot be obtained from the other tests, interview, or third party information. The use of these tests therefore appears consistent with the guidelines suggested by Heilbrun (1992) regarding the selection and use of psychological tests in FMHA.

Another important aspect of the psychological tests used in the present case concerns their relationship to psychological constructs that are relevant to the forensic issues being addressed. Tests of intelligence (WAIS-III) and basic skills in reading (WRAT-3) have clear relevance to the capacity for making a knowing, intelligent, and voluntary waiver of Miranda rights, particularly in their measurement of the individual’s ability to read and comprehend written material and understand oral material.

The forensic clinician also administered specialized measures that were specifically designed to assess the capacity of a defendant to make a knowing and intelligent waiver of Miranda rights. Specifically, the evaluator adminis- tered the Comprehension of Miranda Rights (CMR), the Comprehension of Miranda Rights-Recognition (CMR-R), and the Comprehension of Miranda Rights-Vocabulary (CMR-V; Grisso, 1998b). Because these measures have an established empirical base (Grisso, 1981, 1998b), the evaluator was able to compare the defendant’s scores on these tests with the data obtained as part of the test validation process.

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20 • Forensic Mental Health Assessment

Another important aspect of the forensic clinician’s use of the CMR, CMR-R, and the CMR-V is their specificity; these tools were developed to measure the functional abilities relevant to the forensic issues included in Mi- randa waiver. The use of psychological tests and specialized forensic tools with an established empirical base, which assess both clinical condition and relevant functional abilities, allowed the use of nomothetic evidence in assessing the causal connection between the individual’s clinical condition and his functional abilities related to the waiver of his Miranda rights. The use of these empiri- cally supported tools can inform the evaluator’s judgment about whether cer- tain kinds of psychopathology or functional deficits are related to the individu- al’s ability to make a knowing, intelligent, and voluntary waiver of hisMiranda rights. In this case, based partly on the individual’s scores on the tests specifi- cally designed to assess his overall comprehension of his Miranda rights, the forensic clinician concluded that the individual lacked sufficient understanding of several of his Miranda rights.

to read and write and has a longstanding diagnosisAlan M Goldstein, Ph.D. N.Y.S. Certified Psychologist, P.C. of Fetal-Alcohol Syndrome. Based on her obser-

vations of her client and his reported level of in-CT. Licensed Psychologist Diplomate in Forensic Psychology tellectual impairment, she asked that I assess his

ability to make a knowing, intelligent waiver ofAmerican Board of Professional Psychology his Miranda rights. The opinions presumed in this report are

PRIVILEGED AND CONFIDENTIAL based on two evaluation sessions conducted with

FORENSIC PSYCHOLOGICAL Mr. W at Beekman Correctional Center. During

EVALUATION 8 hours of face-to-face contact, I interviewed Mr. W regarding his history and background as well as his recollections of the events that transpiredDefendant: Aaron W immediately before and during his interrogationD.O.B.: 12/12/78 by the Westchester County Police Department. IAge: 19 years also administered a battery of psychological testsDate of Report: 6/12/99 to him. Testing consisted of the following instru-Indictment No.: 5697/98 ments:Case No.: 586592

Dates Evaluated: 10/14/98, 11/4/98

• Wechsler Adult Intelligence Scale-III (WAIS-III)Aaron W was referred by his attorney, Susan B,

• Wide Range Achievement Test-3Esq., on 9/28/98. At that time, I was informed (WRAT-3)that her client had been charged with Robbery in

• Bender-Gestalt the First and Second Degrees related to an inci- • Symbol Digit Modalities Test dent that occurred on 8/16/98. Mr. W was ar- • Rey’s 15-Item Memorization Test rested approximately 1 month following the al- • Thematic Apperception Test leged offense. According to his attorney, Mr. W • Comprehension of Miranda Rights (CMR) had been in special education classes throughout • Comprehension of Miranda Rights-Recogni-

tion (CMR-R)his school career. She stated that Mr. W is unable

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Miranda Rights Waiver • 21

• Comprehension of Miranda Rights-Vocabu- In Mr. W’s handwritten statement (it is noted lary (CMR-V) that while the statement is written in script, the

• Function of Rights in Interrogation (FRI) signature line contains a simple, somewhat shaky printed “signature”), he indicated that he had

In addition to the above, my opinion is based been asked by his co-defendant to serve as a on my review of copies of the following docu- “watch out” because “Frank was going to yoke the ments provided to me by Mr. W’s attorney: old lady.” He reported that his co-defendant

threw the woman to the ground, took her bag,• Indictment and that both he and his co-defendant ran from• Felony Complaint the scene. According to Mr. W, he took two• Defendant’s Prior Record of Disposition of credit cards from the victim’s pocketbook.Arrests and Dispositions A review of Mr. W’s school records reflects his• State’s Voluntary Disclosure Form

• Defendant’s handwritten statement long history of learning disability and intellectual • School records impairment. In the second grade, he was classi- • Office of Family and Children’s Services fied as mentally retarded and placed in special ed- records ucation classes. He was held back in the second

• Home Assistance report and fifth grades. According to the school records, • Personal Information form

“When given step-by-step directions for simple• Mental Health Crisis Team Intervention tasks, Aaron doesn’t remember how to proceed.”Report A psychological evaluation conducted when he• Trial Competency Evaluation Reports was age fourteen reports a Stanford Binet IQ of(11/5/98 & 11/12/98) 57 and Vineland Adaptive Behavioral Scale scores ranging from 46 to 54. According to thisIn addition, I interviewed the defendant’s fa- report, “Aaron can take advantage of situationsther by telephone on 11/1/98. and manipulate people.” He was found to be, “highly distracted, immature, and he had diffi-

SUMMARY OF RECORDS REVIEWED culty in focusing his attention.” Furthermore, the report states that he “lacks the ability to workAccording to the Felony Complaint, Mr. W has

been charged with Robbery in the First Degree, with what he has learned and to apply what he has learned to new problems and situations. AaronRobbery in the Second Degree, and Criminal

Possession of Stolen Property. It is specifically has difficulty processing language inherent in such problems.”charged that at the time of the crime, he forcibly

stole property and in the course of commission of A psychological evaluation conducted the next year recommended that he “be placed in athis act caused serious physical injury to another

person. It is alleged that the defendant was aided highly protective, structured environment de- signed to deal with his pronounced intellectualby another person and that Mr. W knowingly

possessed a stolen credit card with intent to bene- deficits.” An educational evaluation conducted at the same time reported Verbal Reasoning skills,fit from its use. The indictment indicates that Mr.

W and his co-defendant choked a seventy-four Auditory Memory abilities, Oral Reading and Lis- tening Comprehension scores ranging from theyear-old woman while she was returning home

from shopping. It is alleged that the co-defendant low first grade to the low second grade levels. At age seventeen, Mr. W was evaluated throughknocked this woman to the ground and stole her

purse, and the victim suffered a featured hip re- the Office of Family and Children’s Services. At that time, the evaluation reported his “severequiring hospitalization.

Prior to this charge, Mr. W had been con- problems with word recognition, sight vocabu- lary, as well as his literal comprehension of con-victed of Theft of Services by a plea of guilty (11/

20/97). In addition, he plead guilty to a charge text.” The report reflects his lack of critical think- ing skills as well as the need for special educationalof Menacing in the Second Degree and Criminal

Possession of a Weapon for which he received a services to improve his receptive language abilities. Consistent with other records, he was classifiedConditional Discharge based on a plea of guilty.

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22 • Forensic Mental Health Assessment

as mentally retarded. In addition, diagnoses of tained by his attorney. Using simple language, I explained to him that the purpose of this evalua-Organic Personality Syndrome and Fetal Alcohol

Syndrome were reported. tion was to acquire information regarding the de- tails surrounding his questioning by the police. IRecords from Office of Family and Children’s

Services indicate that both Aaron’s mother and indicated to him that if I were asked to write a report and/or testify, all information he providedfather “are substance abusers and, according to his

mother, she regularly ingested alcohol throughout to me, as well as any other information I learned about him, might be contained in my report and/her pregnancy.” A home assessment report con-

ducted when he was age seventeen found him to or in my testimony. I explained that my notes would be given to his attorney, and under suchbe “low functioning and barely able to read and

count his change.” At that time, records indicate circumstances his attorney would, under law, be required to turn these notes over to the Office ofthat Mr. W had been placed on Ritalin in an

attempt to control his difficulties with concen- the Prosecutor. Mr. W was unable to paraphrase this information, stating simply, “You’re seeingtration, attention, and what was viewed as a Con-

duct Disorder. The report also states that he me to hear what happened.” When I again ex- plained this information to him, he stated, “You“fluctuates from being passively compliant to be-

having in an irrational, non-logical fashion.” want to know what took place in the subway.” Further attempts to clarify the nature and pur-Mr. W was interviewed by the Intake Social

Worker from the Office of the Public Defender. pose of this assessment proved to be relatively un- successful. Mr. W acknowledged that he under-According to his observations, “Aaron was non-

communicative and did not appear to understand stood that, “You’re going to write this down.” In addition, he stated, “Your job is to go to courtthe questions posed to him. To those questions

which he was able to give answers, Aaron re- and you may write it all down.” This evaluation proceeded with authorization from his attorney.sponded with simple ‘yes’ or ‘no.’” When seen by

the Mental Health Crisis Team (approximately 2 At the start of the second evaluation session, Mr. W was unable to recall my name although heweeks before the alleged offense), it was reported

that his “Cognitive limitations appear to be con- stated that, “I remember you. You’re a lawyer, right?” I again indicated the nature of the evalua-siderable, although Aaron could answer simple

questions and generate coherent responses.” tion and the lack of confidentiality that would ex- ist should I write a report and/or offer testimony.Trial competency assessments conducted by

two psychiatrists found the defendant to be com- Again, Mr. W was unable to provide informed consent, and the session continued with authori-petent to stand trial. One report states that Mr.

W “had difficulty performing all but the simplest zation from his attorney. of calculations and demonstrated poor recogni- tion of letters.” Another evaluation indicated that Background and History The information pro-

vided by Mr. W during the interviews is relativelyhe “has difficulty recognizing letters and reading and performing simple calculations. He has a lim- consistent with the records I reviewed. Although

he had a difficult time sequencing events in hisited fund of general information. However, Aaron understands things generally when they are ex- life and there was some confusion regarding de-

tails, he did not present information that ap-plained in simple, uncomplicated terms.” Both psychiatrists found Mr. W to be “borderline re- peared to be designed to portray himself in an

inaccurate light.tarded.” Mr. W could not differentiate between his bio-

logical parents and his stepparents despite numer- INTERVIEWS OF DEFENDANT

ous attempts on my part to clarify this issue. He reported that his mother died “of drinking” whenPrior to the start of my initial evaluation gesta-

tion, I explained to Mr. W, in the presence of he was age 14. According to Mr. W, he has lived with his biological father and stepmother since hehis attorney, that I am a Diplomate in Forensic

Psychology of the American Board of Professional was age 7. He could not explain what his father did to earn a living, stating only, “He sells stuff.”Psychology and that my services had been re-

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Miranda Rights Waiver • 23

Mr. W believed that he attended private want you to ask them no questions, and they want you to be quiet and say nothing and to just sitschool for the earliest grades in his school career.

However, he could not recall the names of these down until they’re ready for you.” As for the use of his statements in court, he stated, “Anythingschools. He reported that he has been in special

education from the start of his school career. that you say, the lawyer writes it down and he’ll tell the judge.” When questioned about his right toWhen asked to explain why this was the case, he

stated, “I was roaming the streets too much.” Mr. have an attorney present during interrogation, he stated, “I don’t know what that means. It meansW left school in the eighth grade. He recalled that

prior to this, he had been “left back one or two that you talk to your lawyer and tell him what hap- pened, or you tell the police what happened. Thentimes because I was slow.” He described his read-

ing as “not that good” and his writing as “so so.” my lawyer goes to court and he tells the judge what I said or when he calls him on the phone.”Mr. W reported that he has never been em-

ployed. He explained, “I can’t fill out an applica- His right to have an attorney if he could not afford one on his own, Mr. W explained, meant that “If Ition. I never picked up a book and learned how

to read.” He reported no history of seizures (it can’t pay for one, somebody will be your lawyer to help you with your case and help you out. Thewas necessary to explain to him what a “seizure”

is). He minimized his use of alcohol and denied judge gets you a lawyer to talk about your case.” Later during the evaluation session, when asked ifuse of controlled substances at anytime in his life.

“It’s because of my mother. I mean my step- he could have an attorney present during interroga- tion, he stated, “No, I don’t have that kind ofmother; she didn’t let me.” Mr. W recalled that at

one point in his life, his mother obtained a PINS money. I get one in court.” Throughout the evaluation session, Mr. W pre-petition (Person In Need of Supervision) because,

“I was running from group homes.” However, he sented his view that, “The police are there to help you. They talk to you and they tell the judge soclaimed he had never heard the term “PINS peti-

tion” before. they could put you on the right track.” Similarly, he consistently expressed the opinion that his lawyer will communicate directly with the judge,Recollection of Miranda Rights Waiver According

to Mr. W, he was arrested on the night of the failing to recognize the existence of privilege that exists between attorney and client. In this regard,crime. However, records show that he was ar-

rested approximately one month later. According he failed to distinguish between the role of the police and the role of his attorney in terms of theto Mr. W, he was approached by the police in the

subway. He explained that he initially spoke to legal representation that would be provided to him. Similarly, throughout the evaluation ses-the police because “They scared me. They ac-

cused me that I robbed her. They also showed a sions, Mr. W did not appear to grasp the concept that the right to remain silent meant anythinglot of pictures of me and they said that I robbed

other people, too.” more than remaining quiet until the police were ready to speak with him.When asked what rights he had been provided

he stated, “They didn’t give me none.” When asked what rights he should have been provided,

OBSERVATIONS OF BEHAVIOR Mr. W stated, “the line-up.” On closer question- ing, Mr. W claimed that, “I don’t know about the Throughout both evaluation sessions, Mr. W ap-

peared to be cooperative. He was friendly, polite,rights.” When pressured he stated, “I’m trying to think. It means to stay out of trouble? Something and although he quickly tired, he appeared to al-

most force himself to remain attentive. Despitelike that.” When asked what the police say on television when someone is arrested, he replied, these efforts, Mr. W was easily distracted by out-

side movement and noises. He appeared to be“You’re going to jail.” He was unable to spontane- ously offer any of the Miranda rights. highly anxious and agitated.

No evidence of an underlying thought dis-Mr. W was read the waiver upon which he had printed his name. When asked about the right to turbance was observed during either evaluation

session. Mr. W’s lack of vocabulary was readily inremain silent, he stated, “It means the police don’t

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24 • Forensic Mental Health Assessment

evidence. In addition to being unable to provide are simple, childlike, and reflect his low level of vocabulary as well as his tendency toward con-informed consent despite numerous attempts at

explaining and reexplaining the nature and purpose crete thinking. His stories were often no more than mere descriptions of the pictures shown toof this assessment, Mr. W’s thinking was highly

concrete and simplistic. He frequently missed the him. They reflect his narrow view of the world and his tendency to be puzzled by unfamiliar sit-essential nature and purpose of the questions put

to him. He had difficulty in presenting a logical uations. Mr. W was administered a number of testssequence of events in his life, and details he did

provide were frequently incorrect or incomplete. specifically designed to objectively evaluate the ability of a defendant to make a knowing, intelli-Rather than attempting to exaggerate the nature

of his retardation, the history he provided tended gent waiver of Miranda rights. While this test consists of the rights as expressed in the St. Louisto underestimate the levels of impairment as re-

ported in the records. County, MO, version of Miranda rights, his per- formance is consistent with scores obtained by those with similar levels of intellectual function- ing. In addition, his responses to these instru-

RESULTS OF TESTING ments are similar to his comprehension of the rights read to him in Westchester County. On anOn WAIS-III, Mr. W obtained Verbal and Perfor-

mance IQs of 63 and 59, respectively. These instrument requiring Mr. W to paraphrase each right (CMR), he obtained a score of 1 out of ascores fall at or below the first percentile and

within the mildly mentally retarded range. His possible 8. On an instrument designed to evaluate his understanding the vocabulary contained in theoverall or Full Scale IQ of 58 also falls at the first

percentile. On the sections that comprise the St. Louis version of Miranda rights (CMR-V; only four of the words are similar to those con-WAIS-III, Mr. W obtained a Verbal Comprehen-

sion Index of 68, a Perceptual Organization Index tained in the Westchester version of Miranda rights), he obtained a score of 2 out of a possibleof 64, a Working Memory Index of 57, and a Pro-

cessing Speed Index of 68. These scores are con- 12. On an instrument evaluating his ability to recognize the similarity between each right andsistent with each other and reflect the generalized

impairments found across a wide range of intel- three sentences read to him related to these rights (CMR-R), he obtained a score of 8 out of 10. Onlectual abilities. Mr. W’s vocabulary, his common

sense or judgment, and his general fund of infor- another instrument in which he is shown pictures and asked a series of questions designed to elicitmation fell between the first and second percen-

tiles. Similarly, his attention span fell at the sec- his understanding of what is occurring (FRI), Mr. W obtained a score of 19 out of a possible 30.ond percentile. He had difficulty defining even

simple words such as “penny” (“It is brown”). With the exception of the test designed to evalu- ate his recognition of rights, his scores fall signifi-Mr. W’s scores on the WRAT-3 are consistent

with his scores on the WAIS-III. He obtained cantly below the mean. His scores reflect his lack of comprehension of the right to remain silent, asReading, Spelling, and Arithmetic grade-equiva-

lent scores falling within the first grade and below well as his lack of understanding that he can have a lawyer present during interrogation. In addition,the first percentile. On the Bender-Gestalt, Mr.

W made nine errors that could be scored under Mr. W did not appear to grasp the concept that what he told the police might be used against himthe Hutt and Briskin scoring system. A score of

five errors or more is generally taken to indicate in court. Further, Mr. W did not appear to under- stand the confidential nature that exists betweenthe possibility of organic impairment. On the

Symbol Digit Modalities Test, Mr. W completed the communication that occurs between he and his attorney. Although Mr. W stated that he un-22 items. The completion of 38 items or less for

a person his age would strongly suggest the pres- derstood a lawyer could be appointed if he did not have money to hire one on his own, whenence of a chronic brain lesion.

Mr. W’s TAT stories are consistent with his questioned later he stated, “I don’t have that kind of money [to get a lawyer during interrogation].”low level of intellectual functioning. His stories

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Miranda Rights Waiver • 25

OPINION remain silent. He does not comprehend that he could have an attorney present during interroga-

Based on my interviews with Mr. W, his re- tion, believing that he would be provided one

sponses to the tests administered, my interview only when he appears in court. Although he grasps

with his father, and my review of the records pro- the concept that an attorney would be appointed

vided to me, it is clear that the defendant is a if he did not have the money to pay for one, later

mildly mentally retarded, learning disabled indi- questioning revealed his belief that as an indigent

vidual. Significant impairments are noted in his individual, he would only be provided with an at-

vocabulary, his ability to express himself, and his torney at such time as he appears in court. In addi-

overall judgment and reasoning. He has difficulty tion, Mr. W does not appear to understand the ad-

concentrating and focusing attention. Consistent versarial nature of the interrogation process.

with his history, screening tests for neurological Rather, he believes that the police are “interested

impairment strongly suggest the presence of an in you and want to help put you on the right path.”

underlying central nervous system dysfunction. It is Mr. W’s belief that both the police and his

Further neuropsychological/neurological testing attorney will report his statements directly to the

is necessary to determine the exact nature of this judge. Consequently, questions are raised as to the

condition. impact of his lack of understanding of the confi-

Mr. W’s responses to questions regarding his dential nature of attorney and client on his ability

comprehension of the Westchester County Mi- to comprehend his Miranda rights.

randa rights as well as his scores on tests designed to objectively evaluate his overall comprehension of Miranda rights, indicate his understanding of a Alan M. Goldstein, Ph.D.

Diplomate in Forensic Psychologynumber of these rights is lacking. Specifically, Mr. W does not understand the nature of the right to American Board of Professional Psychology

Teaching Point: What is the value of specialized forensic assessment

instruments in forensic mental health assessment?

Forensic assessment instruments, such as the Miranda tools developed by Grisso that were used in this evaluation, are never the sole basis for an opinion. However, such tools provide significant information for a forensic expert to consider in reaching conclusions. In a sense, FAIs contribute to the expert’s determination of the “what” regarding the legal competence question (Is the defendant competent or not competent?), while traditional clinical tests con- tribute to the expert’s understanding of the “why” or the reason for the impair- ment in competency.

In reading this report, imagine if Grisso’s forensic assessment instruments had not been administered to Mr. W. What if only traditional clinical tests, such as the WAIS-III, WRAT-3, Bender Gestalt, Symbol Digit Modalities Test, and the TAT, were given? (Tests such as the MMPI-2 could not be given be- cause of his inability to read.) What effect would this omission have on the opinions reached in this report?

Grisso’sMiranda instruments are based on the St. Louis County, Missouri, version of theMiranda rights. AlthoughMiranda v. Arizona (1966) established the content of the warnings to be administered at the time of arrest, the actual

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26 • Forensic Mental Health Assessment

wording (vocabulary, reading level, length of sentences, and number of warn- ings) varies across jurisdictions. It is highly unlikely that the defendant you are assessing would have been administered this version of the warning. However, the inclusion of Grisso’s measures adds very significant and relevant informa- tion that would otherwise be lacking.

First, these instruments offer a standardized method to assess comprehen- sion of theMiranda warnings. The administration of these measures is carefully described in the manual that accompanies these FAIs. Scoring criterion are clearly indicated (along with prompts to clarify unclear or borderline answers). Performance can be expressed in numerical terms. Norms allow comparison of the defendant’s scores on various measures with the scores of the norming groups; norms also relate such scores to age, intelligence, and (for adults) of- fender versus non-offender status. This is valuable information because it pro- vides a base-rate or anchor to which the defendant’s scores can be compared. If only an interview were conducted, asking the defendant about comprehen- sion of the rights that were read, there would be no standard to judge whether his or her comprehension is greater than, equal to, or less than those in his demographic category.

Second, data allow examiners to assess consistency across instruments. Scores on Grisso’s four measures can be compared with one another. They can also be compared to the defendant’s IQ, obtained from an independent mea- sure of his functioning. This information contributes to the assessment of ma- lingering because consistency of performance on independent measures is, in part, one of the criteria used by forensic psychologists in assessing malingering.

Third, by comparing performance on three or four independent instru- ments of comprehension of each Miranda warning, the examiner not only can check for consistency (and therefore malingering) but can also obtain useful information about the specific right or rights the defendant has difficulty grasp- ing. Such information may be valuable to the judge in making a determination of whether the defendant understood each right that was waived.

Fourth, the manual provides a list of court decisions relevant to the admissi- bility of expert testimony incorporating Grisso’s instruments. Opinions and testi- mony that include data based on objective instruments are likely to be viewed as more credible than those based solely on experience or clinical judgment.

Case 2

Principle: Use case-specific (idiographic) evidence in assessing causal

connection between clinical condition and functional abilities

There are a number of important sources of scientific and empirical evidence that can be used to provide relevant information to a variety of legal decision makers. Although reliable and valid empirical evidence is important in FMHA,

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Miranda Rights Waiver • 27

such evidence should be used in conjunction with scientific reasoning. Such reasoning is particularly important when using an idiographic approach, em- ploying case-specific information, and interpreting it using scientific reasoning (comparable to the single case study design).

Idiographic information is particularly important in assessing relevant do- mains in FMHA for two reasons. First, an idiographic approach can contribute significantly to the overall accuracy of the FMHA, and accurate information is critical to hypothesis development, testing, and verification. Second, the use of idiographic data enhances the face validity and relevance of the FMHA because of its specificity and applicability to the particular case, making the FMHA more credible to legal decision makers. In addition to enhancing face validity (a particularly important concern in FMHA; see, e.g., Grisso, 1986), the use of idiographic data is important because standards of practice and ethics authority strongly suggest that FMHA should be based on information and techniques that are sufficient to support the conclusions reached in FMHA. Typically, this is accomplished through direct contact with the individual(s) being assessed and the gathering of case-specific information for hypothesis formation and testing. There is also a strong legal justification for using an idiographic ap- proach in FMHA; the enhanced relevance that results from including idio- graphic data is directly applicable to the admissibility of expert evidence under Daubert, Kuhmo, and the Federal Rules of Evidence.

The present case provides a good example of the use of idiographic evi- dence in hypothesis formation and testing. This defendant was evaluated to provide his attorney with information relevant to his competence to waive Miranda rights. The case provides an example of the relationship between for- mally measured intellectual functioning and specific competencies. The idio- graphic data, obtained through interview and review of case-specific docu- ments, were applied toward describing actual and potential functioning in a variety of domains relevant to the competence to waive Miranda rights.

Miranda warnings were designed to protect a defendant’s right against self- incrimination under the Fifth Amendment. UnderMiranda, a defendant enjoys the protections of several rights (the right to remain silent, the right to an attorney, and the right to have an attorney provided if the defendant cannot afford one) and must also show an awareness of the consequences of waiving these rights (the knowledge that any statements made can be used against him or her in a court of law). A defendant must be able to waive these Miranda rights in a “knowing, intelligent, and voluntary” manner. Accordingly, the FMHA must consider the specific capacities relevant to a “knowing,” “intelli- gent,” and “voluntary” waiver. Further, the primary focus is on the capacities for knowing and intelligent waiver, as a number of courts (e.g., Miller v. State, 1986; Rhode Island v. Innis, 1980; United States v. Velasquez, 1989) have held that the kind of coercion that would typically be evaluated by a mental health professional (e.g., presenting an individual with “hard choices,” implying that a sentence will be more severe if the defendant does not waiveMiranda rights) does not rise to the level of making a waiver involuntary in this context.

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28 • Forensic Mental Health Assessment

The FMHA is primarily concerned with the capacities involved in making such a waiver. The clinical symptoms and cognitive deficits that could limit such capacities, either temporarily (as in acute intoxication) or more perma- nently (as in severe mental retardation), are also relevant for this assessment. As with other legal questions, the presence of such clinical or cognitive deficits might be described as a necessary but not sufficient basis for a legal decision maker to conclude that waiver was not competently made. The relationship between the clinical or cognitive deficits and the specific relevant capacity must be established. An idiographic approach to this assessment issue would have the evaluator seek to determine what the defendant understood about his or her Miranda rights at the time of the confession, how the defendant reasoned in waiving these rights, and whether these capacities for understanding and reasoning were more impaired at the time of the waiver than they are currently.

In the present case, the process of assessing the relevant capacities began with a detailed interview that included a psychosocial history. Relevant idio- graphic information was obtained when the defendant was informed of the evaluation and the associated limits on confidentiality. Although the defendant, Mr. Doe, appeared to understand the basic purpose of the evaluation, he had some difficulty recalling details related to the evaluation, and he needed to have several parts of the notification repeated. This was the first indication that he might have some deficits in his understanding or recall of information pro- vided to him orally.

Incorporating self-report and collateral interviews, the psychosocial history provided important idiographic information that was relevant to the compe- tencies in question. For example, questioning about Mr. Doe’s family history revealed that he had always lived at home with his mother and continued to do so, although he was 41 years old. This suggested that Mr. Doe might not have the skills necessary to live independently, which could suggest deficits in a variety of relevant areas. Similarly, in response to questions about his educa- tional history, he said that he completed fifth grade before dropping out of school at the age of 16, and that he could barely read or write. While both statements required further assessment through independent history-gathering and psycho- logical testing, they were relevant in the present case because of the claim that Mr. Doe had read and understood a standard written Miranda waiver.

The psychosocial history also revealed that Mr. Doe was unemployed at the time of the alleged offense and had only held one job in his life—a job changing tires that was given to him by his stepfather. Mr. Doe described his inability to read and write as the primary reason for his limited job history. His difficulty in finding employment and the simple nature of his only job are consistent with cognitive deficits that might be related to his capacities relevant to waivingMiranda rights. Mr. Doe did not appear to have a significant mental or medical health history, nor did there appear to be a history of mental illness in his immediate family. Also, Mr. Doe described a substantial history of sub- stance abuse, which included daily use of alcohol. This information was rele- vant because if Mr. Doe had been intoxicated when he was asked to sign the

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Miranda Rights Waiver • 29

Miranda rights waiver, this could have had a significant impact on his ability to waive these rights in a knowing and intelligent fashion.

The interview also yielded information about possible mental illness that could have had adversely affected his relevant capacities. There were no indica- tions, either from the observations of Mr. Doe or from the information he provided, that he suffers from a serious mental illness. However, other impor- tant idiographic information was obtained through the clinical interview. For example, Mr. Doe did not respond at length to most questions asked of him without encouragement and further questioning. Also, his responses frequently did not address the question, and he tended to talk about unrelated matters.

Mr. Doe also appeared to give up easily on tasks requiring cognitive effort, a tendency that was particularly apparent during intellectual and academic achievement testing. Mr. Doe was administered the WAIS-R and the WRAT-3 to measure his functioning in these areas. His basic academic skills, as mea- sured by the WRAT-3, showed severe deficits in all three academic areas: Reading and Spelling were measured at a first-grade level, while Arithmetic was measured at a second-grade level. Mr. Doe’s performance on the WAIS-R suggested that he would fall in the Borderline Range of intellectual functioning (VIQ = 72, PIQ = 77, FSIQ = 73). These results suggested that Mr. Doe’s un- derstanding of written material was limited and provided relevant information in considering the hypothesis that Mr. Doe had reading and understanding deficits, particularly with written material.

Considering this possibility, the evaluators assessed the impact of these deficits on Mr. Doe’s specific capacities to knowingly, intelligently, and volun- tarily waive his Miranda rights. Mr. Doe was asked about each component of his Miranda rights. He was also asked to explain his understanding of the meaning and implications of each right. Mr. Doe had difficulty with these re- quests from the beginning. He said that he did not know “for sure” what a Miranda right was, and he had similar difficulty describing the purposes of these rights. Mr. Doe’s responses to further questioning suggested that al- though he had a basic understanding of certain Miranda rights, his ability to reason about the advantages and disadvantages of either waiving or refusing to waive such rights was very limited. His knowledge about his Miranda rights was superficial, and he quickly became confused in trying to weigh his alterna- tives. Given his overall level of intellectual functioning as measured by the WAIS-R and his level of reading as measured by the WRAT-3, it seemed likely that his conceptual and verbal skills would not allow him to reason about and communicate material relevant to Miranda rights in a meaningful way. This would be particularly applicable if he were presented with Miranda rights in written form.

Considering this, it appeared that Mr. Doe could possibly have given a “knowing” waiver of his rights, considered in a very basic sense. However, his capacity to provide an “intelligent” waiver was more limited. The use of vari- ous kinds of idiographic information (collateral interviews and records, psy- chosocial history, clinical interview, and Miranda rights vignettes) supple-

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30 • Forensic Mental Health Assessment

mented the nomothetic information obtained through standardized psycholog- ical tests.

How useful would information comparing Mr. Doe’s Miranda-relevant ca- pacities1 with those of other criminal defendants have been? What if research allowed us to measure accurately Mr. Doe’s “knowledge,” “intelligence,” or “voluntariness” and assign a percentile value (relative to other criminal defen- dants) to each measurement? Certainly that would have been helpful in this case. Indeed, the accurate measurement of relevant capacities is one of the strongest arguments for using a good FAI (discussed further in the Teaching Point in this case). Even when such capacities are measured with an FAI, there are important questions that can be addressed by obtaining case-specific infor- mation. Are the observed deficits genuine? If so, they should be reflected in other domains, as seen in the defendant’s history. How do these deficits affect the defendant’s ability to understand, weigh, and communicate information? In this case, because the defendant was reportedly informed of his Miranda rights both orally and in writing, and signed a written form indicating his waiver, we assessed both his oral comprehension and his reading skills. Can the observed deficits be managed so that the defendant is able to understand and weigh information meaningfully despite such deficits? In Mr. Doe’s case, it was clear that he had extremely limited reading ability, and limited capacity for understanding orally communicated material as well. By using simple lan- guage that is repeated and rehearsed, it is possible to improve such capacities somewhat. The question of how much improvement has resulted can be con- veyed through descriptive language and quoting the defendant. Whether such interventions were used by interrogating officers can be assessed if there is a transcript or, even better, a videotape of the waiver and confession. Each of these questions can be addressed, at least in part, by idiographic information. Such information clearly makes the assessment results more credible and de- fensible, both important considerations in FMHA.

FORENSIC EVALUATION with information relevant to Mr. Doe’s compe- tence to waive Miranda rights, and treatment needs and amenability in the context of publicJanuary 26, 1998

Re: John Doe safety, was made by Mr. Doe’s attorney. MC# 1234-5678-09 PP# 123456

PROCEDURES

Mr. Doe was evaluated for a total of approxi- REFERRAL

mately seven hours on 1-23-98 and 1-26-98 at the Philadelphia City Jail, where he is currentlyJohn Doe is a 38-year-old African American male

who is currently charged with Attempted Mur- incarcerated. In addition to a clinical interview, Mr. Doe was administered a standard screeningder, Aggravated Assault, Rape, Kidnapping, False

Imprisonment, and related charges. A request for instrument for symptoms of mental and emo- tional disorder (the Brief Symptom Inventory, ora mental health evaluation to provide the defense

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Miranda Rights Waiver • 31

BSI), a standard test of current functioning in rel- ried in either 1981 or 1983. Marie Doe indicated that Mr. Doe was very close to his stepfather andevant academic areas (the Wide Range Achieve-

ment Test, 3rd edition, or WRAT-3), and a test was devastated when he died approximately 10 years ago. Joan Doe confirmed that Mr. Doe hadof current intellectual functioning (the Wechsler

Intelligence Scale for Adults, revised edition, or an excellent relationship with his stepfather and added that the family is “very close.” Mr. Doe in-WAIS-R). In addition, Mr. Doe’s mother, Marie

Doe, and sister, Joan Doe, were interviewed by dicated that he has always lived with his mother. He further indicated that he has two sisters, whotelephone on 1-23-98 and 1-25-98, respectively,

regarding Mr. Doe’s current and past functioning. also live with his mother, and a half-sister, who currently resides in New Jersey with her boyfriendThe following documents, obtained from Mr.

Doe’s attorney, were reviewed prior to the evalu- and two children. Marie Doe confirmed the com- position of the family. Mr. Doe also stated thatation: he has two children of his own by two different

1. Preliminary Hearing Summary (7-16-97), women. Mr. Doe also indicated that he has two 2. Trial Transcript, Commonwealth v. John male grandchildren, ages 2 and 14 months. Mr. Doe, Doe indicated that he has regular contact with his

3. Philadelphia Police Department Investiga- children and grandchildren. He also reported that tion Interview Records (7-11-97),

one of the mothers of his children has a problem4. Statement of John Doe (7-11-97, Sex with substance abuse and cut him with a brokenCrimes Unit), and bottle during an argument over the care of his5. Miranda Rights Waiver, John Doe daughter. Mr. Doe stated that the argument was(7-11-97). due to the fact that the mother in question is “never home to take care of things.” Marie DoePrior to the evaluation, Mr. Doe was notified

about the purpose of the evaluation and the asso- and Joan Doe confirmed that Mr. Doe has two children and two grandchildren. They also indi-ciated limits on confidentiality. He appeared to

adequately understand the basic purpose of the cated that he sees them on a regular basis and is actively involved in their lives. Mr. Doe deniedevaluation, although he had some difficulty re-

calling details related to the evaluation and all forms of abuse at the hands of family mem- bers. Marie and Joan Doe also indicated that theyneeded to have several parts of the notification

repeated to him. Mr. Doe reported back his un- were not aware of any kind of abuse that Mr. Doe had suffered from family members.derstanding that he would be evaluated and that

a written report would be submitted to his attor- Mr. Doe apparently has a limited educational history. Mr. Doe reported that he has only com-ney. He further understood that the report could

be used in his hearing and, if it were, copies pleted the fifth grade, and that he was a constant behavioral problem in school and was “thrownwould be provided to the prosecution and the

court. out of school for fighting.” Marie and Joan Doe indicated that this is accurate. Additionally, Mr. Doe indicated that after he had been expelled

RELEVANT HISTORY from elementary school, he attended the Canto School for approximately 2 years. As describedHistorical information was obtained from the col-

lateral sources described above, as well as from by Mr. Doe and Marie Doe, the Canto School is for children with academic and behavioral diffi-Mr. Doe himself. In addition, historical informa-

tion was obtained from interviews with Mr. Doe’s culties. Mr. Doe reported that he dropped out of school at the age of 16. He was unable to describemother (Marie Doe) and sister (Joan Doe).

John Doe was born on September 26, 1956, his educational activities from approximately fifth grade until his official withdrawal from theto Marie Doe and John Doe Sr. According to Mr.

Doe, his mother and father separated and di- educational system. Marie Doe was also unclear on this issue, but did indicate that Mr. Doe didvorced approximately 30 years ago. Mr. Doe indi-

cated that he has not seen his father in a very long not attend school during this time; rather, he was working in his stepfather’s automotive business.time. This is consistent with information pro-

vided by Marie Doe, who added that she remar- Mr. Doe denied all special education involve- Heilbrun, K., Marczyk, G., & DeMatteo, D. (2002). Forensic mental health assessment : A casebook. ProQuest Ebook Central <a onclick=window.open('http://ebookcentral.proquest.com','_blank') href='http://ebookcentral.proquest.com' target='_blank' style='cursor: pointer;'>http://ebookcentral.proquest.com</a> Created from waldenu on 2021-02-07 21:09:14.

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32 • Forensic Mental Health Assessment

ment. Marie Doe confirmed this but also stated In addition, Mr. Doe stated that he served 41⁄2 years in Bordentown for robbery, one year inthat Mr. Doe can barely read or write.

Marie Doe reported that Mr. Doe does not Jamesburg for stealing cars, and 51⁄2 months in An- nadale for theft. He was unable to give exact dates.have any significant medical problems and has

never been hospitalized for anything more serious As mentioned previously, Mr. Doe stated that he committed the majority of these offenses in orderthan a broken wrist. Mr. Doe confirmed that he

broke his wrist in a moped accident and denied to supply his drug habit. Mr. Doe also stated that he stole his first car at approximately age 14. Theall other medical problems. Marie Doe also indi-

cated that no one in the family has a serious men- trial transcript reflects a total of 11 arrests outside of this jurisdiction, primarily in New Jersey.tal disorder and that Mr. Doe has never received

treatment (including medication) for any type of mental health problem. Joan Doe responded to

CURRENT CLINICAL CONDITION the question regarding her brother’s mental health history by stating “my brother is not crazy.” Mr. Mr. Doe presented as an African American male

of below average height with a stocky build, whoDoe initially denied all involvement with the mental health system, but later in the interview appeared younger than his stated age. He was

dressed in prison garb and was well-groomedindicated that he had seen a psychiatrist twice when he was approximately 17 years old. He when seen for evaluation on 1-23-98 and 1-26-98

at the City Jail, where he is currently incarcer-could not remember why he was taken to see a psychiatrist. ated. Initially, he was cooperative and polite, al-

though somewhat reserved. He remained cooper-Mr. Doe reported an extensive history of drug abuse. Specifically, Mr. Doe reported that he has ative and polite throughout the entire evaluation.

His speech was clear, coherent, and relevant, al-used marijuana, cocaine, syrup, LSD, unspecified prescription drugs, and alcohol in the past. Mr. though somewhat sparse, and he did not respond

at length to most questions without encourage-Doe also indicated that he no longer abuses drugs, claiming to have stopped sometime in ment and further questioning. Frequently, his re-

sponses did not address the question asked, and1987. Inconsistent with this, however, he also re- ported that he still drinks alcohol daily. He also he was inclined to talk about unrelated issues. As

a result, questions had to be repeated on a regularstated that he has committed many of his past offenses to secure money to buy drugs. Although basis. He appeared to give reasonable effort to the

most of the tasks involved, although he gave upMarie and Joan Doe were aware of Mr. Doe’s drug use, they could not supply further details. almost immediately on tasks requiring cognitive

demands (such as the WRAT-3 and the WAIS-R).Mr. Doe indicated that he is currently unem- ployed and has only held one job in his life. He When asked about these apparent difficulties, Mr.

Doe frequently responded by saying “I don’tindicated that he worked with his stepfather changing tires for approximately 16 years. Mr. know.” His capacity for attention and concentra-

tion appeared adequate, and he was able to focusDoe was unsure of the dates, but indicated that he began working for his stepfather when he was reasonably well on a series of tasks during the 7-

hour evaluation (over 2 days) without becomingabout 16 or 17 years old. Marie Doe also reported this, as well as stating that Mr. Doe has tried to visibly distracted. Therefore, it would appear that

this evaluation provides a fairly representative es-get a job, but has had difficulty doing so because he can barely read and write. Mr. Doe did not timate of Mr. Doe’s current functioning. His

mood throughout the evaluation was largely sub-have any clear vocational interests or goals. He indicated that he would “do anything . . . and dued and neutral, and he showed little emotional

variability. Mr. Doe was correctly oriented towould like to help” his mother. An official arrest history was not available at time, place, and person. Mr. Doe’s basic aca-

demic skills, as measured by the WRAT-3,the time this report was written; however, Mr. Doe indicated that he has an extensive criminal showed severe deficits in all three academic areas:

Reading (first-grade equivalent), Spelling (first-history. Specifically, he reported that he has been arrested in New Jersey approximately 35 times. grade equivalent), and Arithmetic (second-grade

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Miranda Rights Waiver • 33

equivalent). Each of these areas should be consid- asked if the police could beat him up to make him talk. He replied “yes, they do what they wantered in need of remediation. Overall level of in-

tellectual functioning was formally measured with to do.” Similarly, when Mr. Doe was asked if it was legal for the police to beat him up to makethe WAIS-R and was found to be within the Bor-

derline range (VIQ = 72, PIQ = 77, FSIQ = 73). him talk, he replied “I don’t know . . . nobody did anything about it . . . my momma tell it.” Mr.Individuals with such scores are below the fourth

percentile, relative to the adult population (in Doe was then asked why he had the right to re- main silent; he replied “it’s a right ain’t it?” Heother words, functioning at a lower level than

over 96% of adults). Mr. Doe’s Verbal IQ score was asked to elaborate on this statement, and re- sponded that it was “not for right or wrong, mysuggests that he has a very poor grasp of verbal

and academic skills. Although Mr. Doe’s WAIS-R right . . . for the court.” Next, Mr. Doe was asked to explain his under-scores reveal few strengths, it should be noted that

Mr. Doe appeared to give up easily on numerous standing of the consequences of giving up the right to remain silent—whether he was awareitems on all subtests of the WAIS-R. Accordingly,

Mr. Doe’s WAIS-R scores should be interpreted that, if he did so, anything he said could be used against him in a court of law. His understandingwith some caution, as they might provide a slight

underestimate of his intellectual and cognitive of the consequences of giving up his right to re- main silent seemed to be clearer. When asked tofunctioning.

Mr. Doe did not report experiencing any per- explain his understanding (this question had to be clarified twice), Mr. Doe replied, “anything Iceptual disturbances (auditory or visual halluci-

nations), and his train of thought was clear and tell them they write down . . . bring it up in court . . . bring it against me.”logical. Mr. Doe also did not report experiencing

delusions (bizarre ideas with no possible basis in Mr. Doe was then asked about his right to have an attorney present during questioning; hereality). On a structured inventory of symptoms

of mental and emotional disorder (the Brief did not understand this question when it included the term “interrogation.” When questioned aboutSymptom Inventory; BSI), Mr. Doe reported the

presence of various symptoms. Some of the items his understanding of this right, Mr. Doe replied, “lawyer got to be with me, in charge or somethingendorsed by Mr. Doe involved nervousness, anxi-

ety, difficulty remembering, and symptoms of de- . . . I don’t know, never had no lawyer.” When asked if he had ever requested a lawyer, Mr. Doepression. Mr. Doe denied the presence of suicidal

ideation. Mr. Doe indicated that his current symp- replied “No, I was guilty of my charges before in Jersey.” Mr. Doe was then asked whether thistoms are a result of his current incarceration. would make a difference in whether he asked for an attorney. He replied “don’t know . . . don’t un-

COMPETENCE TO WAIVE derstand big words.” Finally, Mr. Doe was asked

MIRANDA RIGHTS if the police could refuse to give him a lawyer until after they had questioned him. In responseMr. Doe was asked about each respective compo-

nent of his Miranda rights. Each was discussed, to this question, he indicated that “bulls can do what they want . . . they didn’t give me one whenand he was asked to explain his understanding of

the meaning and implications of each right. Mr. I was there.” Mr. Doe was next asked about his right toDoe stated that he did “not know for sure” what

a Miranda right was. When asked about the pur- have an attorney appointed for him if he could not afford one. He said he had “no money topose of Miranda rights, he replied that “it’s your

rights, so I won’t get sued or something.” give ’em . . . PD, right?” When asked if he would get a lawyer if he didn’t have enough money, Mr.When Mr. Doe was asked to explain the right

to remain silent (this question had to be repeated Doe replied further “I have to have a lawyer when I go to court . . . if I got no money then Itwice), he replied that “I don’t have to say noth-

ing.” When Mr. Doe was asked about the con- don’t get one.” Mr. Doe was then asked if the police could refuse to get him a lawyer if hesequences if he chose to remain silent, he re-

sponded “beat me up, I guess.” Mr. Doe was then didn’t have enough money. He said that he “don’t

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34 • Forensic Mental Health Assessment

know, been locked up for 6 months, haven’t seen incorporated into such rights. He was able to in- dicate that “I don’t have to say nothing” as a wayno one for 4 months.”

Finally, Mr. Doe was asked if he remembered of paraphrasing his right to remain silent and that giving up that right could result in statementssigning the Miranda Rights Waiver form. He said

that the police told him “you’re not charged with that had been “written down” being “brought up in court.” He could also state that “a lawyer gotanything . . . you’re going home.” Mr. Doe stated

that he did not remember if he was read his rights, to be with me . . . in charge, or something,” as a way of indicating the meaning of having an attor-had given a statement, or signed any forms.

Mr. Doe did not demonstrate an “intelligent” ney present. In other responses as well, Mr. Doe was able to demonstrate a basic familiarity withcapacity to waive his Miranda rights in the fol-

lowing sense: his knowledge was superficial, he the elements of Miranda. quickly became confused, and he showed very little capacity to reason about different circum- CONCLUSIONS stances and their applicability to the waiver deci-

In the opinion of the undersigned, based on all ofsion. During the present evaluation, Mr. Doe the above:quickly became confused, even when talking

about some of the basic aspects of these rights. Mr. Doe displayed a very superficial under- First, it was often necessary to repeat and/or para- standing of certain basic Miranda rights, sug- phrase questions concerning these rights. While gesting that his capacity to “know” basic infor- Mr. Doe was able to respond on a superficial level mation was limited but possibly acceptable.

However, he quickly became confused andconcerning the most basic aspects of these rights, displayed very limited conceptual and verbalit quickly became apparent that he had a very abilities, which would impair his capacity tolimited awareness of the meaning of these rights. understand anything more complex regardingGiven his low overall level of intellectual func- these rights, to appreciate their importance,tioning as measured by the WAIS-R (VIQ = 72, or to reason about their applicability to him-in the low Borderline range) and his extremely self under different circumstances. Mr. Doe

low level of Reading as measured by the WRAT- showed virtually no capacity to understand 3 (Grade 1 equivalent), it seems likely that his written material. All these suggested that Mr. conceptual and basic word skills would not allow Doe did not have the capacity to “intelli- him to reason about and communicate material gently” waive Miranda rights at the time of relevant to Miranda rights at more than a very his statement. superficial level. This would be particularly appli-

Thank you for the opportunity to evaluate Johncable if he were presented with Miranda rights in Doe.written form; his capacity to understand written

material is extremely poor. However, even his ca- pacity to reason through verbal vignettes and hy- Kirk Heilbrun, Ph.D. pothetical situations, and their implications for Consulting Psychologist Miranda waiver, was very poor.

Geff Marczyk, M.A.However, Mr. Doe did seem to have some ba- Psychology Graduate Studentsic comprehension of certain aspects of his Mi-

randa rights, in a sense roughly consistent with David DeMatteo Psychology Graduate Studenthis knowing basic facts and procedures that are

Teaching Point: What are the limits of forensic assessment instruments?

It has been recognized that traditional psychological tests and procedures have substantial limitations when applied in a forensic context (Grisso, 1998b; Heil-

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Miranda Rights Waiver • 35

brun, 1992; Melton et al., 1997; Rogers, 1997). Accordingly, forensic research- ers have developed a variety of forensic assessment instruments that focus di- rectly on the measurement of functional capacities relevant to the larger legal question. The strengths of such FAIs have been discussed in the previous Teaching Point. What are their limitations?

First, the forensic clinician cannot form an opinion based solely on the results of an FAI. Although FAIs provide useful information regarding an indi- vidual’s legally relevant functional abilities, there remain several important considerations: context, consistency, and communication. Context is a compo- nent of Grisso’s (1986) model of legal competencies:

The term general environmental context refers to some class of external situations to which a person must respond. Various legal competencies . . . specify widely dif- fering contexts: for example, criminal proceedings (trials), police interrogations, home life, and hospitals. (p. 18)

Context may vary even within the same kind of competence, as evidenced by the potentially different demands on a defendant undergoing a highly publi- cized murder trial, compared with the demands on a defendant in a routine, minor felony trial. Some functions may become more important in certain contexts, and it is the responsibility of the evaluator to consider this and inter- pret the FAI results accordingly.

The second limitation of FAI data concerns the consistency of such data with other sources of information. When the FAI provides impressions that are inconsistent with history, direct observations, and collateral information and observations, this suggests inaccuracy in at least one source. Further, it raises the possibility that a defendant providing responses to an FAI measuring Mi- randa waiver capacities, for example, may be malingering or exaggerating deficits in knowledge or reasoning capacity. This could call for a particular focus on the issue of malingering; if this possibility were supported, then the results from the FAI would need to be deemphasized or even discounted.

When FAI results are not communicated effectively, then their value may be reduced. The importance of communicating the results of forensic assess- ment in plain language, free of jargon (Melton et al., 1997), is particularly noteworthy with FAIs, because the obtained scores of the particular defendant may need to be described in the context of the derivation and validation sam- ples, with considerations such as interrater reliability, optimal cutting scores, and the description of the characteristics of individuals falling into groups de- fined by these cutting scores. Such statistical issues are clearly relevant to the value of the FAI, but must be translated for consumers of the evaluation who are not trained in statistics and research design.

A specific example in the context ofMiranda waiver is useful. Several FAIs have been developed for specific use in the context of a FMHA that is con- ducted to assess an individual’s competency to waive his or herMiranda rights; one is the Comprehension of Miranda Rights (CMR; Grisso, 1981). The CMR

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36 • Forensic Mental Health Assessment

was developed to assess an individual’s understanding ofMiranda rights as they are usually presented in a police interrogation situation. Although the CMR is a useful FAI with strong psychometric properties, it is important to supple- ment CMR results with case-specific information for several reasons.

First, it is possible that the Miranda warnings presented to the defendant differed slightly in their wording from the warnings contained in the CMR. Accordingly, it is important to determine the precise wording of the warnings that were presented to the defendant prior to interrogation. In this case, Mr. Doe’s file contained a printed Miranda Rights Waiver form that had been pre- sented to Mr. Doe when he was questioned by the police. The evaluators were able to question Mr. Doe using the language in which his rights were presented to him at the time he waived them (assuming that they were read verbatim from the Waiver form, which could not be confirmed because neither video nor audiotape of the interrogation was available). Relying on the warnings given in the CMR or other FAI may reduce assessment accuracy somewhat if the wording of the warnings played a role in Mr. Doe’s understanding and subsequent waiver of his rights.

Second, the use of case-specific evidence plays an important role in hy- pothesis formation and testing. Although the results of testing may suggest a particular explanation or conclusion, case-specific information provides the forensic clinician with relevant information with which to confirm or reject such explanations or conclusions. The CMR is primarily limited to assessing the individual’s understanding of theMiranda rights. Case-specific information regarding Mr. Doe’s academic history, basic academic skills, level of cognitive functioning, and mental health history provided information that allowed the evaluators to offer reasonable explanations for the existence of such deficits.

FAIs can provide the forensic clinician with reliable and valid data on an individual’s functional legal capacities. The use of case-specific information can help the evaluator assess the accuracy of self-report, emphasize particularly im- portant capacities in the context of the defendant’s circumstances, and commu- nicate more effectively by providing a reasonable explanation for the existence of identified deficits. Case-specific information also enhances the credibility of a given assessment. The use of a relevant, well-validated FAI supplemented by idiographic information from multiple sources would appear to combine the best of both approaches to FMHA.

Note

1. Research in forensic psychology has increasingly moved toward implementing the recommendation made by Grisso (1986) that the measurement of relevant capaci- ties rather than ultimate legal question outcomes is the preferable research strategy for developing and validating FAIs. The usefulness of the ultimate legal determination as an outcome variable is limited by the absence of a “gold standard” (a reliable, valid indicator of the “true” status of a legal competency), a problem first noted by Roesch and Golding (1980).

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