LINGUIST List 5.1043

Mon 26 Sep 1994

Sum: Miranda rights comprehension

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1. "Ellen L. Contini-Morava", Miranda rights comprehension: summary

 A few weeks ago I posted a query asking for information
about the comprehension of the Miranda rights statement read by a
police officer while making an arrest. I had been contacted by a
lawyer for a client that she described as "borderline retarded",
asking whether I could suggest any way to determine whether he
had understood the rights statement. I received several very
helpful responses, but it seems that this particular situation is
relatively rare-- or at least, it is rare for comprehension to be
questioned in the case of native speakers of English. Perhaps
this is because such challenges are unlikely to prevail (see
comment from Brady Johnson, below). More often such cases
involve people who are not native speakers (who may include Deaf
people).

 I passed on several of the responses to the lawyer, and also
gave her the phone number of one respondent who had a lot of
experience in such cases and who had offered to discuss it with
her. The lawyer has not contacted me since, which I infer means
either that she got enough information to proceed on her own, or
that she decided not to pursue this angle-- perhaps on the basis
of others' experience (see below). I wish I had a more
satisfying denouement to report, but anyway I am very grateful to
everyone who answered my query:

Barbara Pearson, Carl Urion, Charles Scott, Nancy Frishberg,
Judith N. Levi, Giorgio Perissinotto, Ed Finegan, John Gibbons,
nBrady Johnson, Bethany Dumas

References:

1) Electronic:

I was referred to the forensic linguistics list run by Sue
Blackwell at the University of Birmingham. The address for
posting to it is FL-LISTbirmingham.ac.uk, and several of the
responses came from there.

2) Publications:

A special issue of Sign Language Studies is in preparation which
focuses on the "Bimodal, Bilingual Courtroom", which may contain
some references that are relevant to this topic.

Judith Levi's 1994 bibliography, LANGUAGE AND LAW: A
BIBLIOGRAPHIC GUIDE TO SOCIAL SCIENCE RESEARCH IN THE USA (ABA,
1994), has 5 items in the section on Miranda rights
comprehensibility, but none applies to retarded people who are
native speakers of English (2 apply to the deaf, and 3 to native
speakers of other languages).

One of these is:
John D. Roy (1990) "The Difficulties of
Limited-English-Proficient Individuals in the Legal Setting" in
Rieber and Stewart (eds.) THE LANGUAGE SCIENTIST AS EXPERT IN THE
LEGAL SETTING.

Eugene Briere has written an article on Miranda rights in TESOL
Quarterly "in, perhaps, 1977, or thereabouts."

John Gibbons has a paper on the Australian equivalent in Applied
Linguistics, 11/3, 1990.

Giorgio Perissinotto has also written something that can be
looked at in ERIC, but I don't have a more specific reference for
this.

Personal experiences:

 Several people also wrote to describe their own experiences
as consultants or expert witnesses in related cases. In the
interests of brevity, I have paraphrased these, I hope without
too much violence to the originals:

Barbara Pearson was contacted by a lawyer for a Haitian refugee
to try to help determine whether there might have been a
linguistic and/or cultural problem in understanding the Miranda
rights statement, but the lawyer apparently decided not to pursue
this further.

Carl Urion has been an expert witness in Canada, analyzing
covertly recorded audio-taped encounters with undercover
enforcement officers, in which it was important to look for
evidence in the discourse as to whether particular propositions
had been understood. [Canada has no equivalent of "Miranda".]

Charles Scott was asked by a lawyer to help decide whether his
client, a Hispanic man, knew enough English to have understood
his Miranda rights. C.S. interviewed the client in the lawyer's
office and administered a form of the Michigan Test of English
Language Proficiency, in which the test taker has to listen to
the test items, which are presented orally on a tape, then
respond by marking an answer sheet. Before administering the
test, C.S. introduced himself and spoke casually to the client,
at a normal pace, while observing his interlocutor to see if he
gave facial or other signs of comprehension (he didn't). The
client also failed the English Proficiency Test, i.e. he tried to
answer a few questions and then gave up. However, it proved
impossible to tell whether he REALLY didn't understand or was
just faking or being uncooperative, and this point was seized on
by the prosecuting attorney, who disputed C.S.'s expertise in the
matter of deciding whether someone was behaving honestly. C.S.
doesn't say how the case turned out, but I infer that the
prosecution prevailed on this point. [Carl Urion also points out
the problem, in the legal context, of deciding what is "in the
mind" of the speaker.]

Nancy Seiden, who has had a lot of experience with legal cases
involving Deaf people who may or may not understand spoken or
written English, says that the reading of the Miranda rights is
often videotaped in such cases [it wasn't in the present case,
unfortunately].

Brady Johnson has practiced criminal law in 3 states (Washington,
DC, Pennsylvania and Washington State), and he says that in all 3
"the requirement for 'comprehension' of the rights is minimal.
That is, so long as the rights are read in a language that the
speaker understands, it will be upheld. Lack of sophistication
or prior experience with the legal system is generally not
considered to be a mitigating circumstance in the jurisdictions
in which I have practiced".

Bethany Dumas, a lawyer/linguist at the Univ. of Tennessee, has
been an expert witness and consultant in several cases involving
linguistic issues. She has research suggesting that the Miranda
warning is difficult even for competent native speakers to fully
comprehend.

 Again, many thanks to all who responded.

Ellen Contini-Morava
Dept. of Anthropology
Univ. of Virginia
Charlottesville, VA 22903
USA