CURRENT STATUS OF THE FIELD

The first part of this section reviews the need for further research with FAIs that evaluate functioning relevant for waiver of rights to silence and legal counsel. The second part discusses uses of the instruments in forensic evaluations.

Research Directions

Functional Component

coverage of functional components. The first section of this chap­ter contained a review of three functional components related to the law's perspective on competent waiver of rights to silence and counsel:

• understanding of the Miranda warnings (i.e., of the words and phrases used to convey to suspects the rights to silence and legal counsel)

• perceptions of the intended functions of the rights

• expectancies and reasoning concerning probable outcomes of waiver or nonwaiver of the rights, and possibly

Collectively, the instruments reviewed in this chapter address the first and second of these components, but not the third. It would be helpful for future research to develop a method that would complete an assessment's coverage of the ability components: that is, a method to assess functional abilities associated with reasoning (the third capacity) about waiver of the rights.

An instrument designed to address this third component might focus on the process and outcome of a suspect's reasoning concerning the choice to waive or not to waive rights in certain arrest and interrogation circumstances. Grisso (1981) developed a research procedure, the Waiver Expectancy Interview, for examining juveniles' reasoning about the waiver decision in hypothetical arrest and interrogation events. The procedure was modeled on research methods developed by Spivack and Shure (1974) for examining children's problem-solving abilities. It was success­ful in producing information about juveniles' reasoning and expectancies concerning the consequences of rights waiver, classifying their responses in order to express frequencies of types of consequences that they antici­pated for various decisions, and producing quantitative indexes of certain formal problem-solving elements (e.g., time perspective, ability to gener­ate a variety of potential options and consequences).

Criterion validity studies. Currently there is no empirical evidence for relations between scores on any of the instruments reviewed in this area and judicial decisions concerning the validity of rights waiver (or suspects' competency to waive Miranda rights) in actual cases. Research to fill this gap is not likely to be forthcoming. The question of validity of waiver is raised for judicial review only occasionally in most jurisdictions, for which reason researchers will find it difficult to achieve adequate sam­ple sizes with which to test the relationships in question. Even if the relation were tested, a lack of correspondence between instrument scores and judicial decisions about validity of waiver would not necessar­ily reflect poorly on the forensic assessment instruments (see the discus­sion of standards for empirical validity in Chapter 3). This is because each instrument claims to measure only one functional ability of the examinee (e.g., understanding of the Miranda warnings), whereas judges must consider many other variables in addition to these in arriving at decisions about the validity of a waiver (e.g., see the first section of this chapter).

normative replication. The four instruments for assessing under­standing and appreciation of Miranda warnings were the result of research in a single jurisdiction (the St. Louis metropolitan area) over 20 years ago. If these instruments are to continue to be of use to examiners, researchers must perform studies that provide norms for youths and adults today. Arguments can be made that youths of the present decade are more "sophisticated" (knowledgeable of the world) than youths sev­eral decades ago, rendering inapplicable norms developed in the 1970s. One can also argue, of course, that youths have not changed—that their apparent sophistication is only superficial and that as a group they mani­fest characteristics of "teenagers" of any era within the past 50 years.

The wording of the Miranda warnings in the Miranda comprehension instruments has created significant difficulties for forensic examiners, because wordings in various jurisdictions are somewhat different from those in the instruments. Revising the wording of the Miranda warnings in the instruments (for example, for a re-norming study) will be of no value unless some version of the warnings enjoys some degree of consen­sual use across some majority of U.S. jurisdictions. It is not known whether such a version exists. If there is none, any wording that is chosen for research purposes will be unequivocally applicable only in certain lim­ited jurisdictions; any wording will be open to the same criticism that is raised about the one used currently in the instruments. Thus, research that examines the degree of difference in performance associated with a few different forms of the Miranda warnings would be helpful in deter­mining the importance of this issue.

Causal Component

It would be helpful to know more about the relation between per­formance on the instruments in this competence area and developmental, personality, or psychopathological characteristics of criminal/juvenile suspects. Interpretations in individual cases could be made more confi­dently to the extent that performance on the tests (in research studies) were known to follow predictions made on the basis of broader theoreti­cal expectations. For example, do scores on the Miranda measures of com­prehension of rights vary in relation to indexes of legal socialization or the development of the concept of a right (Grisso & Schwartz, 2000)? Results of studies focusing on such questions would assist examiners in interpret­ing the validity and potential meaning of measurement data when using the instruments in individual cases.

Interactive Component

There is probably little that research can do to assist clinicians or courts to examine the interaction of person and arrest/interrogation cir­cumstances in Miranda waiver cases. The process would seem to require classification of interrogation events using standardized, operational definitions of variables that would characterize the salient features of the events. Research to describe interrogation events, however, would be quite difficult because of legal, political, or logistic barriers to observing them. Further, examiners might find little use for the research results in individual cases; even if reliable methods were available for categorizing various circumstances of interrogation events, examiners in actual cases generally will not have the opportunity to observe the events in question.

Judgmental and Dispositional Components

The measures reviewed in this area of legal competence were not developed to assess "competence to waive rights knowingly, intelligently, and voluntarily." The various instruments do not provide cutoff scores or statements of competence. Some of the measures do describe the relative adequacy of responses to individual items, but they do not classify the examinee's overall performance on the instruments as "adequate" or "inadequate." They provide conceptual and operational definitions with which examiners may describe to courts what an examinee seems to know, understand, or be able to do, and with which to compare an exam­inee's performance to empirical norms (e.g., the average performance of various age groups).

These limited purposes of the current instruments are entirely consis­tent with the viewpoint that the degree of ability required to satisfy legal standards for competence or incompetence is a moral judgment, not an empirical question. Further, the answer to the moral question will vary from case to case depending on circumstances that go beyond the ques­tion of a defendant's degree of ability.

Clinical Application

Description

All of the instruments reviewed in this chapter offer conceptual and empirical advantages over previous methods for describing abilities related to the competent waiver of rights to silence and legal counsel. Prior to development of the Miranda comprehension instruments, an examinee's ability to understand the Miranda warnings could be inferred only indirectly from measures of general intelligence or from unstandard­ized interview procedures. in contrast, the Miranda comprehension instruments offer indexes of knowledge and awareness for the specific content with which the law is concerned when considering an individ­ual's capacity to waive rights in interrogations. Data are obtained in a standardized fashion. They can be used to summarize what an examinee appears to understand, then can be summarized objectively and reliably in quantitative fashion that is amenable to normative comparisons.

Published norms for the instruments in this chapter generally have derived from research meeting necessary scientific standards. Nevertheless, the use of these norms to describe the performance of examinees must consider the possible implications of background differences (e.g., eco­nomic, racial, cultural) between the examinee and the samples from which normative data were obtained. Moreover, as noted earlier, differ­ences in wording of Miranda warnings across jurisdictions place limits on the way that results can be applied in individual cases.

Explanation

Poor scores or responses on the instruments in this chapter may be obtained for any of a number of reasons, some of which would not be consistent with legal notions of incapacity to waive rights knowingly, intelligently, and voluntarily (e.g., malingering, transient motivational states at time of testing).

The various Miranda comprehension measures are best employed together in assessments rather than administering only one of them. Research evidence suggests that whereas there is considerable correspon­dence between the instruments in the results produced (presumably because of their shared content), their different stimulus formats and response modes constitute three different methods for assessing the knowl­edge or understanding in question. Errors in interpretation may result from the use of any one index alone, due to individual differences among exami­nees in abilities to decode or encode information in the stimulus format and response mode of any one instrument. Thus the use of all three indexes guards against misinterpretation based on test-specific responding. In addi­tion, examination of consistencies and inconsistencies in the content of inadequate responses across tests might assist the examiner in detecting various examinee conditions that could account for inadequate perform­ance (e.g., malingering, or inconsistency resulting from cognitive and emo­tional confusion of the examinee).

Interpretation of results of the instruments in this chapter will require data beyond the item and summary scores of the instruments. Several types of data might be useful in explaining the meaning of adequate or inadequate responses on these instruments: for example, content analyses of responses on the instruments, comprehensive mental status interview results; observation and summary of the examinee's past and present behaviors in settings other than the examination session; and data from psychological tests of general intelligence, academic abilities, personality, and psychopathology. Therefore, FAIs assessing waiver-related abilities should be employed in the context of a broader assessment, designed to provide confirming and disconfirming evidence for various explanations for the degree of ability manifested on the forensic instruments.

Postdiction

The Miranda comprehension instruments provide indexes of current functioning. There is little empirical evidence to assist examiners in making inferences, based on these performance indexes, about functioning at an earlier time, such as a past arrest and interrogation event. Further, the instruments provide no special method for examining the relation of the examinee's abilities to the demands of the specific waiver situation with which the examinee was faced. Thus comparisons between an individ­ual's abilities and the demands of the waiver situation must be inferred with great caution. Examples and further guidance for this process have been provided by Grisso (1998a).

Conclusions and Opinions

When circumstances allow the examiner to conclude that the individ­ual probably understood very little about the rights at the time that they were waived, this still does not justify expert testimony concerning the validity of waiver (i.e., testimony that the waiver was or was not made "knowingly, intelligently, and voluntarily"). Nothing about the empirical nature of the forensic assessment instruments justifies testimony by expert witnesses on questions that require moral and social judgments in the application of the legal standard.