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En Banc Sixth Circuit Reverses in Garner v. Mitchell:
Back in September 2007, I blogged about a Sixth Circuit case, Garner v. Mitchell, that granted a writ of habeas corpus in a capital case based on a theory that the defendant who had signed a Miranda waiver form hadn't actually waived his rights. I wrote then that "I suspect this decision won't be the last ruling in the case," and it turns out it wasn't: earlier this week, the en banc Sixth Circuit overturned the panel decision.
David Schwartz (mail):
I'm curious, if there was no police misconduct, but the suspect just said "yeah, I understand my rights" because that's what everyone does in the movies, could you still hold that the Miranda waiver was knowing?

I agree with the concurrence in this case. The waiver was knowing because the threshold is very low, but that's not something you can settle by looking at police conduct.
3.5.2009 9:50pm
CJ2:
Probably correct per the status of the law as-is, but this whole area of law reflects a fundamental misunderstanding of how developmental disabilities work - a very low-functioning adult is MORE likely to tell you they understand when they don't (because of eagerness to please), not less.
3.5.2009 10:29pm
David Schwartz (mail):
And they're unlikely to understand the explanation anyway, so it's easier just to not push for one. If they say they don't understand, and you attempt to explain to them what it means to be entitled to an attorney, they'll just have to say they don't understand again.

It's kind of like when you're talking to someone and you just want to get through it because it's unpleasant and uncomfortable. If they ask you if you know something or heard something, you say "yes" because otherwise they'll start blabbering about it.
3.5.2009 10:36pm
Cory J (mail):
David Schwartz,

But isn't it terrible when the person reacts excitedly and presses with follow-ups?

"So, did you see [movie you know the speaker loves and will pester you about seeing]?"

"Yeah, it was great, just like you said. Thanks for the recommendation!" [Start to walk away]

"Isn't it outstanding? Do you remember the part..."
3.5.2009 11:06pm
whit:
is there anybody over the age of 8 and who watches tv that does NOT understand miranda.

the average 12 yr old can't tell who the vice president of the united states is, but he sure as hell can quote miranda.

i've had them say to me "i know my rights! i watch cops" etc.
3.5.2009 11:43pm
OrinKerr:
Whit,

I suppose it depends on what it means to understand Miranda. I teach Miranda to law students, and it is my experience that most law students do not really understand Miranda until we break down the opinion and see what it means or doesn't mean. Sure, they can recite the warnings, much like they canrecite the Pledge of Allegiance or sing the lyrics to a popular song. But I wold submit that understanding Miranda can mean a lot more than reciting the warnings.
3.6.2009 12:04am
Redlands (mail):
Prof. Kerr is probably right. A lot of crooks, or not, will answer both questions and may not truly understand what they've just agreed to. But once they say it, and then start answering questions, game's pretty much over.
One more reason I'm not particularly enamored with Miranda.
3.6.2009 12:16am
stombs (mail):
The 7th Circuit citation on p. 8 pretty well sums it up:


"The relevant constitutional principles are aimed not at protecting people from themselves but at curbing abusive practices by public officers."


If you don't agree with that, then you aren't going to agree with the decision. I think the opposite position leads to grotesque results, but your mileage may vary.
3.6.2009 1:36am
David M. Nieporent (www):
I can't agree, Redlands. Nobody - including judges - "understands" Miranda ... if by that we mean knows of the nuances built up through decades of precedent.

But I think all but the truly mentally challenged - and I mean that in the clinical sense - doesn't understand the basics:

1. You don't have to answer questions if you don't want to.
2. You are allowed a lawyer.
3. If you can't afford one, the government will give you one.

That just isn't hard - and pop culture has educated people better than courts ever could - and it's good enough to allow people to protect themselves.

No, most criminals don't understand, e.g., when Miranda DOESN'T apply, but they don't need to.
3.6.2009 8:06am
Fugle:
While this may be a close(r) Miranda case than many, is it really constitutionally necessary for the police to have an assessment completed prior to interview (assuming the warnings are given?) The bad facts here (if conveyed by the defendant and not inserted by the police) are: evidence of a plan to both deflect suspicion and destroy evidence. I do agree with the majority decision.

On a somewhat dissimilar note -- as to the sophistication of a defendant, a lawyer I know went to visit a new client in jail, the initial consultation on a drug case. Almost the first words out of the client's mouth were to tell the attorney what he believed was his exposure pursuant to the federal sentencing guidelines. The attorney told him this was a state case, and the guidelines did not apply. The attorney then asked him whether the client gave the cops consent to search his vehicle during a traffic stop. The client said he did, knowing he had a kilo of cocaine in the trunk. The attorney then explained to his client that the client could have refused to consent to the search. The client was surprised.

BTW, the client was correct regarding the guidelines (including applicable reductions and enhancements.) For those who do not practice criminal law in federal court, the guidelines are not simple, and often require an algebraic component to determine.
3.6.2009 9:27am
PatHMV (mail) (www):
Orin, I'm assuming you're not suggesting that one cannot knowingly waive one's Miranda rights unless one has had a year or two of law school? Whit was clearly talking about knowing one's rights in the sense of knowing basically what those rights are (the ones in the warning) rather than deeply comprehending all of them.

"You don't have to talk to us."
"If you do talk to us, that can be used against you in court."
"You have the right to talk to an attorney before talking to us."
"If you can't afford an attorney, the judge will appoint one for you."

That's not all that difficult to understand. Now applying it wisely to one's own particular circumstances may be more difficult, but that's not what is required for a knowing and voluntary waiver.

What more do you think is required for "understanding"?
3.6.2009 9:55am
OrinKerr:
Orin, I'm assuming you're not suggesting that one cannot knowingly waive one's Miranda rights unless one has had a year or two of law school?


Pat, you misunderstand. Understanding Miranda isn't the same as having a legally effective waiver, which is the entire point of this case.
3.6.2009 10:06am
PatHMV (mail) (www):
Yes, Orin, I agree. One need not intellectually "understand" Miranda in order to knowingly waive your Miranda rights. But I still don't understand your response to Whit. He said that everybody, even 12 years olds, know their Miranda rights. You responded that even your students don't always "understand" Miranda. While Whit used the word "understand," he was clearly, in context, referring to knowing what those Miranda rights are.

Were you trying to draw some meaningful distinction between knowing one's rights and "understanding" them, were you offering some critique of Whit's assertion? You've confused me.
3.6.2009 10:43am
Soronel Haetir (mail):
PatHMV,

What more do you think is required for "understanding"?


How about the understanding that you are actually in the described position and that you have an actual choice to make? I've known several people whose mental faculties were such that they would agree to almost anything. They could even repeat back what you said to them. If someone couldn't for instance provide at least a basic description of what role a (defense) lawyer fills then they are not capable of knowingly waving their rights.

I would simply balance this out by not providing any sort of mitigation based on mental imparement. You may lose a lot more D statements but you also wouldn't have to treat them with kid gloves afterward.
3.6.2009 10:54am
PatHMV (mail) (www):
Soronel,

So your answer is that no custodial statements by anybody with an IQ below about 85 should ever be admissible, period?

I don't think that society in general is willing to make the trade-off you suggest. Frankly, I'd prefer to make the trade-off in the other direction. Use their statements to help convict them, but treat them with greater understanding and compassion than we might give the average criminal because of their mental conditions. But let's not use their mental condition to ignore actual evidence.

Of course, where a defendant has a low mental capacity, certainly we should look much more closely at whether an apparent confession is really one. If the "confession" consists of some trying-to-please admission made as a result of some promise that "you can go home if you just admit what you did," then I would look askance at that. But if the defendant says "I shot her, and then I through the gun in the dumpster at the corner of 3rd and Main (where the gun was later found)," then that should most definitely be admissible, regardless of the defendant's mental slowness.

And if we're going to decide to adopt pretty much a blanket rule that those with low IQs can never make a knowing waiver of their Miranda rights, then I think we should decide that their condition also renders them incapable of doing all sorts of other daily societal tasks, like driving, entering into contracts, etc.
3.6.2009 11:56am
whit:
i have to agree with pat etc. when i say "understand" miranda, i mean understand that

1) you don't have to talk to the cops
2) if you do decide to talk, what you say can be used against you in court (note: i disagree with the miranda text because it says where i work "WILL" be used against you in court, when in fact what you say MAY be used against you, may be irrelevant, or MAY be used in your BENEFIT, but we don't say that)
3) you have the right to talk to a lawyer, and have him with you during questioning
4) if you don't have the cash, you can get a lawyer for free

some also add
5) you have the right to exercise any of the above rights at any time

how frigging hard is that to UNDERSTAND?

i'm not talking about understanding the rationale behind the decision, or understanding when miranda applies (iow when the cops have to read the warnings), or understanding standing (iow when non-mirandized statements can be used against another party) bla bla

i'm talking about understanding 4 basic concepts.

essentially, we don't so much advise people of their miranda warnings, but REMIND them of their miranda warnings.
3.6.2009 12:02pm
Soronel Haetir (mail):
PatHMV,

I would have no problem with the last option you described. I suspect there wouldn't be all that many cases lost, the police would just have to work a bit harder which isn't a bad thing IMO.
3.6.2009 12:09pm
Soronel Haetir (mail):
Whit,

I would say that the third of those is the hardest to understand, to understand it you would need to understand at least the basic role of any sort of intermediary. And possibly need more understanding than that, I'm not sure.

It's obviously not what we have, but I would basically rebalance the system to make getting a conviction much more difficult but make extreme punishment, including execution, routine after conviction were secured.
3.6.2009 12:28pm
whit:
soronel, i'm not even conviced the miranda decision was a good , or more properly, a correct decision.

let alone expanding it to require a full investigation into whether somebody understands the miranda warnings.
3.6.2009 12:44pm
David Schwartz (mail):
"The relevant constitutional principles are aimed not at protecting people from themselves but at curbing abusive practices by public officers."
That just reframes the question. By "abusive" do we mean substantively abusive? Interrogating a person who doesn't understand that he's not required to answer questions is substantively abusive, regardless of how reasonable the officers were in concluding that the person did understand that they weren't required to answer.

In fact, it doesn't matter whether police use some abusive practices (assuming they don't physically or emotionally abuse or torture people) to get confessions if those confessions aren't admissible. The reason we want to stop abusive police practices is because they result in false confessions and bogus evidence.

Even if the police were completely reasonable, if it turned out that their behavior was the kind of behavior that we find substantively abusive and that tends to cause things like false confessions, the confession shouldn't be admissible.

But, again, the bar is very low for knowing waiver of miranda rights. You don't have to be a constitutional lawyer, you don't have to understand all the implication. And I think the police met that bar in this case, based on the extrinsic evidence.

They also acted reasonably. But that can't be the test.
3.6.2009 12:49pm
PatHMV (mail) (www):
David, I disagree with your application of the phrase "substantively abusive." People who act abusively are bad people. The word itself implies improper behavior by the actor. If the police reasonably concluded that the person DID understand, then they did not acted improperly in any way. Short of requiring them to give an IQ test to every person they interrogate, there is nothing more for them to do. "Abuse" and "abusive" are thus improper terms to use here.

If you want to say that we will not rely on this confession because the defendant's reduced mental capacity creates a substantial risk that the confession is unreliable, that's fine, but that's very different from calling what the police did "abusive."
3.6.2009 1:43pm
OrinKerr:
PatHMV,

I think you're just getting caught up on what it means to "understand Miranda." Does that mean know the words? Or does it mean understand what they mean and what a waiver is? Every one knows the former; very few people understand the latter; and the basic question of the Garner v. Mitchell case was how to deal with that. It was that distinction I was getting at, which is precisely why I began my response to Whit by saying, "I suppose it depends on what it means to understand Miranda."

Whit,

I think it's actually pretty hard to understand, to use your word. For example, what does it mean that you don't have to talk to the cops? Does that they can't charge you with a crime of not talking? That they can't physically hurt you until you talk? It's actually a somewhat complicated legal rule, and one that isn't really explained by "you have a right to remain silent".
3.6.2009 2:27pm
PatHMV (mail) (www):
Orin, I remain confused. Now it sounds once again like you are suggesting that in fact one can't knowingly and intelligently waive Miranda rights (because one can't "understand" them) unless one has taken a crim law class or two in law school.

"You don't have to talk to me or answer my questions."
"You can have a lawyer if you want, even if you can't afford one."
"If you tell me something, I may use it to help convict you of a crime."

In the real world, I don't think it's all that complicated to "understand."
3.6.2009 3:00pm
whit:
orin, sorry i don't buy it.

it isn't complicated.

the average person does understand exactly what i said. i don't underestimate the intelligence or understanding of the common man. i believe you are doing just that. you don't have to be a lawyer to understand exactly what "the right to remain silent" means.

we have also had DECADES of tv shows all the way back to dragnet that have pounded into people's head exactly what miranda means.

and movies like dirty harry wouldn't have clicked with so many, if they didn't understand exactly what those rights ential.

legal analysis is not about common sense. and it's often about minutiae and stuff.

miranda isn't. it's very simple.

people understand it. 12 yr olds do.
3.6.2009 3:05pm
David Schwartz (mail):
If the question is, "how well do you have to understand Miranda in order to knowingly waive it", the answer is "not very well". Otherwise, Miranda would make police work completely impractical.

I think we're just getting caught up in the many possible meanings of "understand". There is one sense in which pretty which everyone understands Miranda and one in which almost nobody does. It's the former sense that's at issue here.
3.6.2009 8:37pm
whit:

If the question is, "how well do you have to understand Miranda in order to knowingly waive it", the answer is "not very well". Otherwise, Miranda would make police work completely impractical.


not at all . i file this under defense lawyer canard #1 at volokh.com, the mistaken idea that people waive miranda because they don't really understand it, are coerced by police, etc.

it's the same "logic" that claims that consent searches aren't voluntary because why would a person with contraband consent to a search.

the fallacy lies in the lack of understanding of human psychology.

generally speaking, humans WANT to confess. it's hard wired.

but it is completely false to claim that IF people understood miranda well (hint: they do), that people would stop confessing.
3.6.2009 9:19pm
stombs (mail):

"The relevant constitutional principles are aimed not at protecting people from themselves but at curbing abusive practices by public officers."

That just reframes the question. By "abusive" do we mean substantively abusive? Interrogating a person who doesn't understand that he's not required to answer questions is substantively abusive, regardless of how reasonable the officers were in concluding that the person did understand that they weren't required to answer.

In fact, it doesn't matter whether police use some abusive practices (assuming they don't physically or emotionally abuse or torture people) to get confessions if those confessions aren't admissible. The reason we want to stop abusive police practices is because they result in false confessions and bogus evidence.

Even if the police were completely reasonable, if it turned out that their behavior was the kind of behavior that we find substantively abusive and that tends to cause things like false confessions, the confession shouldn't be admissible.


This pretty well sums up what I find objectionable about Miranda, or rather about it's more extrreme advocates. "Abusive" means just what it says -- abuse, coercion, torture. It should not cover tricking stupid criminals into confessing. "Free the guilty" is opposed to be an unfortunate side effect, not a goal of the system.
3.7.2009 1:15am
David Schwartz (mail):
stombs: The problem is that you can trick stupid innocent people into confessing at least as easily as you can trick stupid guilty people into confessing.
3.7.2009 3:30pm
whit:

Interrogating a person who doesn't understand that he's not required to answer questions is substantively abusive


"abusive" when applied to behavior implies a conscious effort to do the act etc.

iow, we say that a person who beats a child with a baseball bat is abusive.

if the cop THINKs the person understands miranda, but the person doesn't , that's not really "abusive".

it's kind of the difference between malfeasance and misfeasance if i understand the terms correctly.


stombs: The problem is that you can trick stupid innocent people into confessing at least as easily as you can trick stupid guilty people into confessing.


with the realization that most people who confess are not "tricked" into it, what evidence do you have for this oh so certain claim?

i assume none.

if your theory were true (which it isn't), then there would be roughly the same # of false confessions as there are true confessions. and nobody, not even the harshest critics of police interrogation, reid techniques, etc. would make that claim.

or nobody who has actually looked at data on confessions, that is.
3.7.2009 5:27pm
stombs (mail):


Interrogating a person who doesn't understand that he's not required to answer questions is substantively abusive



"abusive" when applied to behavior implies a conscious effort to do the act etc.

iow, we say that a person who beats a child with a baseball bat is abusive.

if the cop THINKs the person understands miranda, but the person doesn't , that's not really "abusive".

it's kind of the difference between malfeasance and misfeasance if i understand the terms correctly.


stombs: The problem is that you can trick stupid innocent people into confessing at least as easily as you can trick stupid guilty people into confessing.



with the realization that most people who confess are not "tricked" into it, what evidence do you have for this oh so certain claim?

i assume none.

if your theory were true (which it isn't), then there would be roughly the same # of false confessions as there are true confessions. and nobody, not even the harshest critics of police interrogation, reid techniques, etc. would make that claim.

or nobody who has actually looked at data on confessions, that is.



The reason for the prohibition against self-incrimination was to prevent the extraction of confessions by judicial torture. This was needed because long experience had shown that such confessions were worthless. I realize that some people feel that our "more evolved" moral consciences now require suppression of evidence obtained by any form of "coercion" (like glaring at the little punk until he confesses). The late Stanley Mosk eloquently expressed this view in one of his dissents. I don't buy it for a second. The defense is certainly free to argue to a jury that a confession is not credible, but suppressing a confession on the basis of psychobabble -- when the police followed every rule to the letter -- is simply grotesque.
3.7.2009 5:58pm
David Schwartz (mail):
stombs: The problem is that you can trick stupid innocent people into confessing at least as easily as you can trick stupid guilty people into confessing.

with the realization that most people who confess are not "tricked" into it, what evidence do you have for this oh so certain claim?

i assume none.

if your theory were true (which it isn't), then there would be roughly the same # of false confessions as there are true confessions. and nobody, not even the harshest critics of police interrogation, reid techniques, etc. would make that claim.


All you need to do is find one person in the entire world who is willing to confess to more or less anything and it will then be easier to get that one stupid innocent person to confess than the average guilty person. Why would you ask for evidence of a claim that is obviously true?

I do agree that most people who confess are not tricked into it. But I think that's due to two major factors:

1) Police generally don't want to put an innocent person in jail and have a good idea who is innocent and who is not.

2) We have significant protections in place to prevent police from extracting false confessions.

The problem is when police have very good reasons to believe that a person who is in fact innocent is guilty, and they believe they are doing the right thing by collecting additional evidence. That's why factor 2 is so important.
3.7.2009 6:50pm
whit:
david, you still miss the point.

stupid or not, the vast majority of innocent people will not confess to something they didn't do.

period.

and that is more true considering the incredible restraints that police interrogation occurs under.

so, my point stands.



stombs: The problem is that you can trick stupid innocent people into confessing at least as easily as you can trick stupid guilty people into confessing.



your statement is unsupported, contrary to common sense, contrary to even what harshest critics of police interrogation believe, etc.

just because somebody is "stupid", to use your words does not mean that given their innocence, they will be as easy to "trick" into a confession as a similarly stupid guilty person.

not to mention that intelligence iow stupidity vs. being supah-smaht is not anywhere NEAR the primary factor in whether somebody confesses.

study up on this issue, and get back to me.
3.8.2009 4:32am
David Schwartz (mail):
Whit: Suppose I pick a random unsolved case out of all the cases at a typical unit. I present you a challenge -- find someone to confess to this crime. Which is the easier way to solve this:

1) Find an innocent person who will confess.

2) Find the person actually responsible, and get them to confess.
3.8.2009 8:25pm

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