THE COMPETENCE QUESTION

Adult criminal and juvenile delinquency suspects are provided the right to avoid self-incrimination and to have legal counsel when they are arrested and questioned by law enforcement officers (Miranda v.

When defendants have sought to exclude the use of their confession as evidence on the grounds that waiver was invalid, courts have found it necessary to consider the capacities or competence of defendants to have understood their rights and to have waived them voluntarily prior to making the confession to police officers. A defendant's capacities or abili­ties, however, are not the only consideration. Courts must also review the procedures used by the law enforcement officers to inform the person of the rights, as well as other circumstances of the arrest and questioning event that might have contributed to, or detracted from, a "voluntary, knowing, and intelligent" waiver.

A judicial decision about the validity or invalidity of a defendant's waiver confers no legal status of incompetence on the defendant, even though the defendant's deficient capacities might have played a significant role in the decision. Therefore, competence or incompetence to waive rights is not in itself a legal disposition (as in "competency to stand trial"). Instead, it refers merely to the capacity of the defendant as one major factor to con­sider when reaching legal conclusions about the validity of the rights waiver.

Mental health professionals frequently have been asked to assess the capacities of defendants to understand and appreciate the rights that they waived at the time of their arrest and interrogation.

The question of capacity to waive Miranda rights needs to be distin­guished from the matter of "false" or "unreliable" statements by suspects. One may be able to make a valid waiver of rights yet be susceptible to offer­ing a statement to police officers that is untrue, partly true, or greatly dis­torted. Some suspects have been known to confess to offenses primarily on the basis of reconstructions of the offense provided by police officers, despite their own inability to clearly recall any participation in the offense in question (see Barthel, 1977 for a case example). Moreover, social psycho­logical studies suggest that individuals differ in their capacities to resist suggestions supported by social consensus or by authority figures (Gudjonsson, 1992; Kassin, 1997; Kassin & McNall, 1991). Information about a defendant's susceptibility to making false confessions may be important for purposes of the weight that judges or juries should place on a defendant's confession. But the issue of false confessions requires separate inquiry from the legal question of capacity to waive Miranda rights volun­tarily, knowingly and intelligently. Thus it is not reviewed in this chapter.

Law and Current Practice

Legal Standard

U.S. Supreme Court decisions (Miranda v. Arizona, 1966; In re Gault, 1967; Fare v.

"knowing" waiver. Miranda v. Arizona (1966, pp. 444-445, 478-479) specified the now-famous "Miranda warnings" that must be given to sus­pects: that the suspect has a right to remain silent, that any statements made can be used as evidence against the suspect, that the suspect can have an attorney present before and during interrogation, and that an attorney can be appointed if the suspect cannot afford one. Some confes­sions may be valid even if not preceded by Miranda warnings—for exam­ple, confessions made spontaneously, without inquiry by police officers. When officers are inquiring, however, waivers are invalid if police officers fail to provide the warnings to the suspect (recently reaffirmed by the U.S. Supreme Court in Dickerson v. U.S., 2000).

No particular degree of capacity to understand these rights and enti­tlements necessarily satisfies the "knowing" component (Grisso, 1981). Consistent with the "totality of circumstances" approach, courts usually have decided whether a suspect's capacity to understand was sufficient in each specific case in light of circumstances of the waiver (e.g., the manner in which police informed the suspect, and whether the suspect was given assistance by counsel, parents, or friends in understanding the rights: West v.

On the other hand, courts sometimes have addressed the "knowing" component on the basis of the suspect's presumed capacities alone. For example, one court (United States ex rel. Simon v. Maroney, 1964) believed that a retarded, 18-year-old suspect was incapable of understanding Miranda warnings, even though police had offered them clearly and properly. Another court (State v. Prater, 1970) decided that a suspect had such a great capacity to understand his rights (due to frequent previ­ous exposure to police arrest procedures) that the hasty and incomplete reading of the rights by police officers did not invalidate the waiver. In general, though, legal standards usually construe "knowing" as a sum of suspects' abilities to understand plus the manner in which they are informed.

"intelligent" waiver. The distinction between the "intelligent" and "knowing" elements of capacity to waive rights is seen in a California Supreme Court case (In re Patrick W., 1978, p. 738), in which the court noted that the suspect "showed understanding of the Miranda admoni­tions" ("knowing") but was not likely to "fully comprehend the meaning and effect" of his decision to waive the rights and make incriminating statements to police officers." (See also People v. Lara, 1967.) For example, a suspect might understand that she has a right to speak with an attorney, as the Miranda warnings indicate; but she might not grasp the significance of being able to speak with an attorney (for example, might not know what an attorney is or does) and therefore be unable to "intelligently" decide about whether to claim or waive the right. Some courts have even ques­tioned suspects in the courtroom to assure that they understood not only what the Miranda warnings said, but also to determine whether they comprehended what manner of legal assistance they refused when they waived the right to legal counsel, or whether they understood the concept of a "right" (e.g., People v.

Some courts, however, have disagreed with this interpretation of the Miranda standard, holding that only a "basic understanding" is necessary. For example, in People v. Bernasco (1990), the Supreme Court of Illinois defined the requisite knowledge as "understand [ing] the very words used in the warnings. It need not mean the ability to understand far-reaching legal and strategic effects of waiving one's rights... [or]... how widely or deeply an interrogation may probe" (p. 964). By this type of ruling, a "knowing" waiver might be made if one knows that one can get a lawyer (which is all the Miranda warnings say), without the need for an inquiry into whether the suspect also understands the roles a lawyer might play in legal proceedings. In this context, it is unclear what the law intends when it refers to an "intelligent" waiver of rights, or whether the term has any meaning separate from "understanding."

Equally unclear is the role of mental illness when courts apply the "intelligent waiver" standard. A suspect, for example, might understand what he is being told when issued the Miranda warnings, yet may have a delusional belief that renders the information inapplicable (in the sus­pect's mind) to his circumstances. This might seem to negate the value of the suspect's adequate understanding, since it nullifies the relevance of the warnings for oneself. Few courts, however, have verified this interpre­tation, and at least one court has found that it is not relevant for judging "intelligent" waiver. In a case in which the suspect appeared to under­stand the Miranda warnings but had a delusional belief that God would protect him if he confessed, the Supreme Court of Michigan decided that all that mattered was "whether the defendant understood... that the state could use what he said in a later trial against him," saying that the lower court had erred when it "focused on why defendant was confessing rather than considering whether defendant could in fact understand" (Michigan v.

Therefore, in states like Michigan that construe the issue narrowly, it is not at all clear what is meant by the term "intelligent" in the "knowing, intelligent, and voluntary" standard, since the inquiry regarding "knowing and intelligent" appears to be satisfied if defendants simply "know" what they were told when given the Miranda warnings. In states like California, however, what defendants believed when they applied the warnings to their own situation ("fully comprehend the meaning and effect" of warn­ings: People v. Lara, 1967; In re Patrick W., 1978) is part of the inquiry regard­ing the validity of waiver of rights during police interrogation.

"VOLUNTARY" waiver. This component requires that the waiver deci­sion must be a consequence of the suspect's will, rather than a product of coercion. How this has been interpreted has varied considerably across courts and circumstances.

Especially with reference to juveniles, some courts have used terms such as dependency, immaturity, compliance, and deference to refer to charac­teristics of suspects that may be relevant when considering the coercive effects of police interrogation (Grisso, 1981). Similarly, in In re Gault (1967), the U.S. Supreme Court remarked on the likelihood that youths' waivers of rights might be influenced by "fantasy, fright and despair" associated with their immaturity.

At least in cases involving adult suspects, however, appellate court decisions have tended to focus on the actions of police when examining the voluntariness of a confession, excluding a consideration of the degree to which the suspect "felt" coerced. In Colorado v, Connelly (1986), the U.S. Supreme Court considered whether a suspect made a voluntary waiver of rights when he believed that God was commanding him to confess a mur­der to police officers. The Court decided that the purpose of the voluntari­ness inquiry was to assure that the actions of police officers were not of a coercive nature. Because police actions were considered to be proper in Connelly, the waiver was deemed voluntary despite Connelly's claim that his delusion was "coercive."

Therefore, the "voluntariness" component of the "knowing, intelligent and voluntary" standard need not involve inquiry into the state of mind of the suspect as a matter of U.S. Constitutional protections. This does not mean, however, that the characteristics of the suspect are irrelevant when judging voluntariness. Courts must still weigh whether police actions were coercive in light of the "totality of circumstances" (as discussed in more detail below). For example, in other cases, the U.S. Supreme Court has made it clear that juveniles require special care regarding potential coer­cion because of their relatively immature status; circumstances of police interrogation that are not necessarily coercive with adult suspects might be coercive with juveniles (In re Gault, 1967; Fare v. Michael C., 1979; see also Haley v. Ohio, 1948; Gallagos v. Colorado, 1962).

Judicial reasoning when applying the "voluntary, knowing, and intelligent" standard is structured by two additional types of legal provi­sions, which may be called decision rules and decision variables.

decision rules. The law provides two approaches to deciding the question of the validity of waiver of rights to silence and legal counsel. They are called the per se approach and the totality of circumstances approach. A per se law codifies the automatic invalidation of a waiver in every case in which a certain fact or circumstance is shown to have been present. In contrast, the totality of circumstances approach requires a discretionary determination based on the individual circumstances of each case.

Currently, no states have per se rules based on capacities or character­istics of suspects alone. For example, no statute considers all mentally retarded defendants or all children automatically incompetent to waive Miranda rights. Some states, however, consider juveniles incompetent to waive their rights unassisted. In those states, juveniles' waivers are auto­matically (per se) invalid if they have not been advised by parents or other "friendly adults" (that is, if one of these persons was not present at the waiver) (Feld, 2000; Grisso, 1981, 1998a). Per se rules of this type specify conditions for determining invalidity of waiver, but not validity. In such states, for example, the presence of a parent at a juvenile's waiver does not automatically validate the waiver, because the juvenile in question might have been incapable of understanding the warnings even with assistance.

The totality of circumstances approach has predominated in this area of law (Fare v. Michael C., 1979). This approach simply disallows the pre­sumption that any particular fact, characteristic of suspects, or circum­stance is sufficient to decide the validity or invalidity of waivers across all cases (Frumkin, 2000). Given two individuals with similar capacities, the waiver of one might be valid and the other invalid, depending on differ­ences in circumstances between the two cases.

decision variables. Leading cases have provided courts with lists of characteristics to consider when determining the capacities of suspects to waive Miranda rights (e.g., Coyote v. United States, 1967; Fare v. Michael C., 1979; Johnson v. Zerbst, 1938; State v. White, 1973; West v. United States, 1967). A composite of these lists includes the following factors: age, intel­ligence, education, amount of prior experience with police, physical con­dition, background, and conduct. Other cases have cited additionally a suspect's psychotic condition. Courts providing these lists, however, have not confined judicial considerations to these characteristics alone.

Courts also have provided lists of procedural factors to be considered when judges determine whether suspects, given their degree of capacity, could have made a valid waiver in the instant circumstances. For exam­ple, the Court in West v. United States (1968) underscored a consideration of the manner in which police informed the suspect, whether the suspect was held incommunicado for a long period of time prior to questioning, and several other procedural variables. (See Giisso, 1998a, for an extended description of relevant circumstances of actions of police officers.) How these factors are applied, however, is a matter of considerable judicial dis­cretion, as well as appellate uncertainty. It is somewhat more typical, however, for courts to have accepted suspects' waiver of rights even when police provide misleading information to suspects about available evi­dence against them (e.g., in State v. Jackson, 1983, in which suspect was told, falsely, that he was seen by an eyewitness and his fingerprints were found on the gun).

In general, however, when courts apply the totality of circumstances approach, police procedures are taken into consideration along with the capacities of the suspect in determining whether a waiver of rights was "knowing, intelligent, and voluntary."

Legal Process

Modern police practice strongly discourages the "third-degree tac­tics" of an earlier era. Current manuals for police investigation emphasize a friendly and concerned type of questioning, noting that this is both more humane and often more effective than aggressive intimidation in obtaining a suspect's cooperation (Inbau, Reid, & Buckley, 1986). The importance of obtaining confessions that will stand up to legal challenges has stimulated some law enforcement departments to urge officers to employ care in abiding by the letter of the law. On the other hand, interro­gation manuals (e.g., Inbau et al., 1986) encourage relatively sophisticated methods for inducing waivers and confessions, employing psychological tactics for persuasion such as minimization, maximization, implied but unstated threats and promises, and suggested negative and positive incentives (see Kassin, 1997; Kassin & McNall, 1991; Oberlander & Goldstein, 2001). As coercive as these tactics may seem, they are generally allowable from a legal perspective.

Actual practices with mentally or developmentally disabled criminal suspects have not been documented or studied. Interrogation practices with juveniles apparently almost always result in a waiver of rights. Grisso and Pomicter (1977) found that the rate of refusal to waive rights was only about 9% of juvenile cases in which waiver of rights was requested by police (compared to about 42% for adult suspects, according to Seeburger & Wettick, 1967). Juveniles most often were questioned at police stations or juvenile detention centers, and parents were present in the majority of cases. Other evidence, however, indicated that few parents explained the Miranda warnings to their children or provided advice con­cerning how the child should respond at the time of the waiver decision (Grisso, 1981), and that parents often believe they should encourage their children to cooperate with police officers in interrogation circumstances (Grisso & Ring, 1979).

Questions of invalidity of waiver are most likely to be raised by defense attorneys during the weeks or months following a defendant's questioning and confession to police. An assessment may be sought to evaluate the defendant's capacities to have understood the Miranda warn­ings or to have waived the rights voluntarily. Not all cases will involve evaluations, however, as sometimes the question of a waiver's validity may be raised primarily on the grounds that police procedures were inad­equate to meet legal, threshold requirements of per se rules for procedures in dealing with suspects.

Little is known about the actual manner in which courts weigh the procedural circumstances and characteristics of suspects to arrive at deci­sions about the validity of rights waiver. In one review of appellate cases involving juveniles (Grisso, 1981), suspects 12 years of age or younger usually were perceived by courts as lacking in understanding of Miranda warnings; decisions in cases of 13- to 15-year-olds were more variable, whereas waivers in cases of juveniles 16 years and above were perceived as valid more frequently than in cases involving younger juveniles. Courts frequently associated very low IQ scores (e.g., below 75) with insufficient understanding of the warnings. Intelligence test scores often were cited in conjunction with poor academic records or reading abilities. Finally, suspects' number of prior contacts with police often were cited as relevant to courts' opinions about requisite understanding, with more prior contacts suggesting better understanding.

Many courts have recognized that a defendant's current level of com­prehension of the Miranda rights (i.e., at the time of an evaluation or a court hearing) might not represent a suspect's capacities at the time that waiver of the rights actually was obtained (that is, at an earlier time of arrest, rights waiver, and questioning by police) (Grisso, 1981). For exam­ple, a court may decide that even though a defendant currently manifests only mild intellectual deficiencies, certain circumstances surrounding the arrest and waiver process were likely to have impaired the defendant's ability to use his or her modest intellectual potential. Therefore, judicial deliberations frequently involve a difficult process, taking into considera­tion the defendant's current capacities, information about the procedure and atmosphere of the past arrest and police questioning, and how these two sets of factors might have interacted to affect the defendant's compre­hension and decision-making process at the past time in question.

Competency Assessment: Current Practice

Appellate case opinions provide ample evidence that courts have long relied on mental health professionals' assessments of defendants' capaci­ties when the question of valid waiver is raised, especially in cases involv­ing juveniles or persons with mental illness or developmental disabilities (Frumkin, 2000; Grisso, 1981). Yet, at the time of the first edition of EC, mental health professionals had little guidance in performing evaluations related to waiver of Miranda rights, other than the results of one substantial study of juveniles' capacities to waive Miranda rights (Grisso, 1981). Subsequently, literature offering such guidance has increased (Frumkin, 2000; Fulero & Everington, 1995; Grisso, 1998a; Melton, Petrila, Poythress, & Slobogin, 1997; Oberlander & Goldstein, 2001), and at this writing, two major studies were underway to replicate, update, and extend the earlier research by Grisso (1981) on juveniles' capacities to waive Miranda rights.

In general, these references describe a process involving the collec­tion of detailed data on the circumstances of the arrest and interrogation, and relevant psychological characteristics of the suspect. Typically this includes clinical information (e.g., level of intelligence, mental disorder) and direct questioning about what the defendant currently can compre­hend regarding the Miranda warnings. The inferential process described in these sources is complex, requiring retrospective interpretations of the defendant's capacities based on evidence of current capacities, reports of the defendant's behavior and state of mind at the time of the interroga­tion, and knowledge of a wide range of circumstances of the interroga­tion. There has been no research, however, describing the degree to which clinicians employ these models and guidelines for evaluations of defen­dants' capacities related to waiver of Miranda rights.

From Legal Standard to Forensic Assessment

Functional Component

Grisso (1980, 1981) has described several broad abilities, or areas of functioning, associated with the concept of capacity to waive rights to silence and legal counsel. These abilities were derived from comprehen­sive reviews of appellate cases by a research panel of lawyers and psy­chologists. They provide conceptual definitions of what a person should be able to know, understand, believe or do (functional abilities) in order to make an informed decision about waiver of rights at the time of police investigations. A review of more recent case law in the area suggests only minor cautions, as noted later, regarding that earlier analysis.

The first area of functioning is the person's understanding of the rights warnings. Thus the suspect's understanding of the words and phrases usually used by police to inform suspects, as provided in Miranda v. Arizona (1966), would seem to be the proper focus for obtaining data asso­ciated with this part of the legal inquiry.

The second area of functioning is the suspect's perceptions of the intended functions of the Miranda rights. For example, suspects might understand that they have a right to an attorney; but their ability to con­sider the rights intelligently might be impaired if they do not understand the function of an attorney in legal proceedings, or if they have delusional or seriously distorted beliefs about the implications of waiving the right to avail themselves of an attorney's counsel. As noted above in "Legal Standards," this function will be more relevant in some states than in oth­ers, depending on whether or not they restrict the inquiry about "know­ing and intelligent" waiver to a simple matter of understanding the words and phrases that the Miranda warnings provide. Grisso outlined three content areas within this function that seemed to be important to assess:

• the suspect's accurate perception of the nature of interrogation (e.g., its adversarial quality)

• the suspect's accurate perception of the attorney-client relation­ship (e.g., its advocacy quality), and

• the suspect's accurate perception of the irrevocable protection from self-incrimination (e.g., that the right is more "powerful" than police or judicial discretionary powers).

A third function is the suspect's capacities to reason about the probable consequences of waiver or nonwaiver decisions. For example, some suspects' capacities to reason, or in the case of juveniles, their immature perspective, might impair the process by which they decide about their waiver and con­fession. Cases in which this might be of greatest importance would involve persons whose mental retardation seriously limits their abilities to process information (Ellis & Luckasson, 1985; Everington & Fulero, 1999; Fulero & Everington, 1995), and youths whose developmental capacities might limit their ability to weigh the consequences of their decisions (e.g., limited time perspective required to anticipate short-range and long-range events, lim­ited capacities to generate optional responses: see generally: Scott, 1992; Scott, Reppucci, & Woolard, 1995; Steinberg & Cauffman, 1996).

Grisso (1981) did not include a "voluntariness" component in his analysis of capacities to waive rights, because it was not clear that the law conceptualizes voluntariness as a capacity to be evaluated apart from the procedures with which a waiver was obtained. Some courts have expressed concerns that some suspects might choose to waive rights because they are especially acquiescent—for example, some children and adolescents who are vulnerable to "fantasy, fright and despair" (In re Gault, 1967). The voluntariness of statements, however, typically has not been judged on the basis of defendants' specific capacities. As noted earlier, courts have looked to the behavior of police officers when judging voluntariness (Colorado V. Connelly, 1986), or occasionally at the simple fact of youthful­ness as increasing the risk of involuntary (simply acquiescent) agreements to waive rights in cases involving children. Thus it is difficult to postulate a concept of "capacity for voluntariness" that could offer meaningful guidance for psychological inquiry to assist the courts.

The components reviewed above suggest that forensic assessments for competence to waive Miranda rights should examine several func­tional capacities of examinees:

• understanding of the Miranda warnings (i.e., the words and phrases used to convey to them 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.

For conceptual convenience (but not necessarily for purposes of legal definition), the first function seems to parallel the "knowing" element of the legal standard (understanding), and the second and third components parallel the "intelligent" element (awareness of functions of rights, expectancies, reasoning). The forensic assessment instruments reviewed later in this chapter were intended to provide direct indexes of these specific abilities associated with defendants' capacities to waive rights to silence and counsel.

Causal Component

Laws controlling legal decisions about the validity of waiver do not specifically require the establishment of a causal connection between deficits in the above areas of functioning and psychological disorders or disabilities (e.g., mental illness or mental retardation). Nevertheless, appel­late cases demonstrate courts' close scrutiny of these relationships (Grisso, 1981). When testimony suggests that a defendant may have had poor understanding of the Miranda warnings, courts will attend closely to infor­mation about general intellectual ability, age and developmental status, mental disorder, or prior experiences (such as numerous contacts with police) that might bear on the defendant's general knowledge of the rights.

One of the reasons for inquiry into this relationship is a concern that a defendant may manage the appearance of deficiency in understanding of rights, in order to suppress a confession and weaken the state's case against him. For example, in State ex rel. Holifield (1975), the appellate court noted that the juvenile defendant had incorrectly answered several questions posed to him at the lower court hearing concerning the mean­ing of the Miranda warnings. The court acknowledged that the juvenile's testimony might have been "self-serving." Nevertheless, the court believed that substantial questions about the juvenile's competency were raised by his answers, when considered in light of his age and testimony about his poor academic and intellectual capacities. As demonstrated in this court's reasoning, many courts look to relationships, or causal connections, between functional deficits (specific to the legal context in question) and psychological characteristics, in order to judge whether the deficits appear to be real—that is, beyond the person's control—or whether they may be feigned.

Therefore, an important task in a forensic assessment will be to collect and describe information about a defendant's psychological characteris­tics that bear some logical relation to the functional abilities associated with competence to waive rights. Which psychological characteristics will be important to assess?

In an empirical study involving 359 juveniles, Grisso (1981) found that understanding of Miranda warnings was related significantly to both age and IQ scores, with these two variables independently accounting for significant variance in scores on measures of Miranda comprehension. Juveniles' amounts of prior exposure to the warnings (i.e., number of prior felony arrests) were related to Miranda comprehension only for white juveniles. These results provide one source of information for foren­sic examiners who must consider the relationships between Miranda com­prehension and other psychological characteristics in individual cases. For example, if a juvenile responds incorrectly to inquiries about the Miranda warnings read to him in an examination session (see instruments reviewed later in this chapter), the examiner might be led to question the accuracy of this assessment if the juvenile falls into the higher IQ range (average range) or upper age levels (16 or 17) of juveniles in the Grisso studies. Additional information regarding relevant characteristics for the causal question is provided for adults with mental retardation (Everington & Fulero, 1995; Fulero & Everington, 1999).

Beyond these empirical guides, however, examiners must look to psychology's general theories of intelligence, cognition, development, memory, and information processing. Theory and research in these areas might assist the examiner in forming expectancies concerning the relation between a measure of general cognitive ability and degree of manifest understanding of Miranda warnings. Causal interpretations might then be checked by comparing results on the measure of general cognitive ability to the examinee's answers to questions about the meanings of the Miranda warnings, in order to determine whether they are consistent or inconsis­tent with theoretical expectancy. Grisso (1988) provided a review of this inferential process and examples of its application to cases, especially in dealing with questions of malingering of deficits in capacities to compre­hend information relevant for criminal competencies.

Interactive Component

As explained earlier, a court's decision about the validity of a sus­pect's past waiver of the rights to silence and counsel generally requires an examination of the "totality of circumstances." This concept clearly identifies the validity of a waiver of Miranda rights as neither a function of the suspect's capacities alone nor the circumstances of the situation, but as a question of the degree of capacity of the suspect weighed in relation to the demands of the situation. There may be exceptions, such as cases in which police fail to provide the Miranda warnings. But most cases will manifest this interactive perspective in arriving at a conclusion about the validity ofMiranda waiver.

In this sense, a suspect's capacities to waive Miranda rights (or the validity of waiver) requires an examination of the congruency or incon­gruency of the suspect's functional abilities and the demands of the spe­cific situation that the suspect encountered when arrested and questioned by law enforcement officers. This interactive characteristic of the legal competency suggests that forensic assessments should include, whenever possible, a comparison between the functional capacities of the examinee and various circumstances of the instant waiver situation.

A general review of appellate cases in this area (described earlier in this chapter) suggests several circumstances of waiver situations that are per­ceived as bearing on the comparison of a suspect's capacities and situational demands. One set of circumstances focuses largely on the opportunity for the suspect to be informed of the rights and to consider them carefully. These circumstances include:

• the words and phrases actually used to inform the suspect (e.g., the wording of the Miranda form used by police, variations in words, or message sequence, used by police when informing the suspect)

• manner of presentation ("boilerplate" or hasty reading of the rights; careful, slow presentation; attempts to explain or interpret the warnings for the suspect; attempts to elicit suspect's under­standing of the warnings), and

• presence or absence of a consultative person (e.g., whether parents or attorney were present, whether or not they actually gave advice or were passive).

Several other circumstances noted in appellate opinions seem to relate primarily to questions of voluntariness of waiver:

• time of day or night

• length of time suspect was held incommunicado

• where the suspect was held prior to waiver and questioning

• conditions under which suspect was held (e.g., was or was not pro­vided necessary food or water)

• opportunities for suspect to contact attorney or other supportive persons, and

• police demeanor (e.g., urgings, suggestions, persuasive tactics, forceful or coercive behaviors).

Finally, courts have considered situational states of the suspect at the time of the waiver: for example, states of intoxication or drug influence, fatigue, or physical illness.

Thus, suspects who are intoxicated, or who are offered only a formal, "boilerplate" reading of the Miranda warnings, or who are held incommu­nicado for several hours prior to a reading of rights and questioning, have greater demands placed on their capacities to understand the rights or to make a voluntary choice regarding waiver. When a suspect's capacities themselves are deficient, the interaction may be construed as constituting a degree of incongruency between ability and demand.

Assessing the demand, however, may be quite difficult for the foren­sic examiner. Many of the potential demand characteristics require a fact­finding process for which the examiner may be ill-equipped or unqualified. Indeed, the examiner might be in conflict with the function of the court in attempting to establish the facts of the waiver situation, inasmuch as these are likely to be contested by the parties in the case.

Judgmental and Dispositional Components

A decision as to whether the degree of incongruency between a suspect's capacities and situational demands constitutes an invalid waiver requires a judgment about justice. In some cases, suspects' capacities may be so extremely deficient that almost anyone's sense of justice would lead to a conclusion of invalidity of waiver. Yet in most cases, courts must wrestle with the question of "how much incongruency is enough" when weighing whether the decision should favor the suspect's protection or the claims of the state.

The latter consideration must take into account the dispositional gravity of the decision that a waiver is or is not valid. At stake for the defendant is possible conviction of a crime, partly or largely on the basis of the confession obtained after waiver. Convictions on the basis of a waiver made involuntarily or without understanding threaten constitu­tional safeguards protecting citizens against the state's abuse of its pow­ers. On the other hand, leaning too heavily toward protection of criminal suspects threatens the ability of the state to prosecute offenders.

When forensic examiners merely report data on suspects' capacities for understanding of Miranda warnings, as well as possible relations between these characteristics and the demands of waiver circumstances, they are not stating conclusions about justice or the balance of individual liberties and state interests. They step very close to this conclusion, however, when they attempt to answer the question, "Did this suspect understand the Miranda warnings, at the time of waiver, sufficiently to make a knowing, intelligent, and voluntary waiver of rights?" This question posed by the legal standard cannot be answered by any set of observations made by the examiner. Deciding the degree of understanding or reasoning that is required in order to satisfy the legal standard is a moral or legal judgment beyond the proper role of the mental health expert witness.