Over the past 60 years Congress passed a series of laws that were written specifically to assure that people with disabilities were provided certain rights. However, over the years, these laws have not always been enforced. In fact, often they have been blatantly ignored.
As a result, many suspects and defendants have been convicted of crimes even though they have had no concept of their rights. In addition, police officers often violated those rights with impunity. Suspects, including those who were deaf, were often forced to give confessions in lieu of beatings or prolonged interrogations including torture.
The article reviews legislation protecting the rights of the disabled and examines the language implications related to individuals who are deaf and disabled relative to waiving Miranda rights and making false confessions.
Supreme Court Rulings
In 5-4 decision in 2010, the U.S. Supreme Court’s conservative majority limited the scope of the warning that stemmed from Miranda v. Arizona and imposed additional requirements on criminal defendants related to understanding and requesting their Miranda rights. The court in Berghuis v. Thompkins ruled that a suspect must clearly state his wish to invoke the Fifth Amendment to remain silent. In other words, it is up to suspects to specifically state they want to remain silent.
In another case, Maryland v. Shatzer, the Court determined that when a suspect invokes his right to remain silent during a criminal investigation, this right does not extend indefinitely when the suspect has been released from custody. The court ruled that after 14 days, the police may attempt to question the suspect again and it is up to the suspect to contact an attorney.
Theses rulings raise special difficulties for the uneducated and for the majority of defendants who are deaf. For example, after the Miranda rights have been read orally or given via sign language to an individual and questioning has started the suspect must clearly declare that he want to remain silent. He cannot merely be silent. As such, there are unique populations who are at risk of not invoking their rights and making false confession during forensic interviews. Vulnerable populations include not only deaf individuals with cognitive and learning disabilities, individuals with Attention Deficit Disorders, the highly anxious, people who are inclined to submit to the wishes of others and have low self-esteem, and non-English speakers.
If the suspect talks to police after he has been informed that he does not have to, he has, by that act, waived his right to remain silent. Therefore,what the suspect then says in interrogation can be used against him.
This puts these vulnerable populations, who often times do not know about their rights, at a terrible disadvantage when arrested and facing questioning by law enforcement. Deaf defendants are particularly at risk because of their low language skills and unfamiliarity with legal concepts.
Stanford University law professor Robert Weisberg says the new Supreme Court rulings give lower courts the opportunity to construe ambiguous situations in favor of local police and prosecutors. They provide opportunities for both sides to raise possible questions involving the application of the law in many criminal cases.
Another factor that tends to bias the Supreme Court and lower courts against criminal defendants and prisoners is that there are no former public defender lawyers on the Supreme Court and very few in the lower judicial ranks. Moreover, the quickest way to judgeships is to become a prosecutor or an attorney with a government agency.
The Miranda waiver seems, on the surface, to be relatively simple and forthright. Actually, it poses some complex legal and linguistic problems. For example, Rodgers discovered hundreds of different versions of the Miranda warnings and many profound problems related to their understandability. That affects more than 300,000 suspects every year.
The reading grade levels required to understand the Miranda waiver range from grade level 5.2 to grade level 9.9, depending on which readability formula is used.
These reading levels are far beyond those achieved by the majority of people who are pre-lingually deafened. Thus, for these deaf people, giving them the Miranda rights in written form does not meet the constitutional requirement that it must be presented in a form understandable to the defendant. Presenting it through lip reading also poses problems because two-thirds of the 42 sounds of English are either invisible or look like some other sounds when formed on the lips. In addition, beards, mustaches, protruding teeth, and different accents severely limit the amount of information a deaf person can get from lip reading. Dimly lit rooms also make lip reading practically impossible. In terms of communication the Miranda waiver to deaf defendants, these facts and data from Rodgers make it apparent that dependence on lip reading is not a satisfactory way to explain Miranda to those who are deaf.
Having deaf defendants read the Miranda waiver poses similar problems. For example, the reading comprehension level of the average 17-year old deaf individual is third grade, eighth month. This level has not changed over the years. Since the average reading level required to understand the Miranda waiver is grade seven, this means that the waiver cannot be given in printed form to the overwhelming majority of deaf defendants because they would not understand it. Consequently, for most dead defendants, a sign language interpreter will be needed.
The Morales Law Firm would like to thank The National Association of Criminal Defense Lawyers Champion for sharing this article with us.
Part II Posted on – 10/11/13