The Dialogue Approach to Miranda Warnings and Waiver
Ferguson, Andrew Guthrie, American Criminal Law Review
OFFICER: Okay, Mr. Faulkner, do you knowingly, intelligently and voluntarily waive these rights as I have read them out to you on this Miranda warnings?
DEFENDANT: I don't understand that. Could you translate that down for me?
OFFICER: Okay. Do you knowingly, intelligently and voluntarily, do you know what I read you? Do you understand it? Are you intelligent enough to understand what I've read you, and do you voluntarily waive these rights that I've read you? Are you willing to talk to me?
DEFENDANT: Yes, sir. (1)
In a typical criminal case involving a disputed confession, the following scenario occurs: A suspect is brought to the police station. He is placed in a small interrogation room. A detective reads the suspect Miranda warnings. The suspect acknowledges the reading of the warnings. The suspect waives his Fifth Amendment rights. (2) The suspect confesses. A few months later, an expert is consulted to determine if the suspect actually understood those rights, and whether the suspect "knowingly, intelligently, and voluntarily" (3) waived them. Perhaps the suspect has manifested cognitive limitations or mental health issues. (4) Psychological tests to determine the intelligent, knowing, and voluntary waiver are conducted. (5) Based on the expert evaluation and test results, the suspect challenges his confession in court. Months later, the ultimate question of the adequacy of the knowing, intelligent, or voluntary waiver is litigated before the trial judge. The court must then make a legal determination based on a "totality of circumstances" standard (6) about whether the waiver was valid. (7)
The question remains: What did the suspect know and understand at the time of the interrogation? The central tension in any disputed confession case arises from the fact that the tests to evaluate the suspect's knowing, intelligent, and voluntary waiver are conducted months after the relevant time of the interrogation. (8) Months later, a suspect might know his rights from having talked to a family member, lawyer, or "jail house lawyer." (9) Months later, a suspect might misrepresent his actual knowledge recognizing that the confession is detrimental to his case. (10) While expert evaluation and testing is necessary to make a determination after the fact, what controls the legal determination is the suspect's knowledge and understanding of his rights at the time of the interrogation. (11) This tension exists because current Miranda practice fails to develop an adequate record of a suspect's knowledge and understanding at the time of the waiver. (12) Even with perfect recording technology, current Miranda practice involves what is essentially a one-way explanation. The police officer conveys Miranda rights to the suspect through a formalized recitation of the warnings. (13)
Usually this is done through a reading and signing of a pre-printed Miranda waiver form or card. (14) AS detailed in Faulkner v. State excerpted at the outset of this Article, in practice a suspect must acknowledge the warnings, but need not do more. (15) As a result, courts cannot easily assess the extent to which a suspect knew, understood, and willingly relinquished constitutional rights. (16) Judges are left evaluating proxies for this information--the suspect's intelligence (as measured by intelligence quotient or "IQ"), age, education level, and experience with the criminal justice system. (17) While these are all important factors, they cannot replace information about the suspect's actual state of knowledge and intelligent understanding at the time of waiver.
This Article proposes a new "dialogue approach" to resolve this tension and limit the ambiguity in disputed waivers, especially for vulnerable suspects. The dialogue approach would require suspects to confirm their understanding (18) of the rights and the consequences of the waiver by restating the rights in their own words at the time of the interrogation. …