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interrogation rights and adjudicative competence in
adolescent defendants: Cognitive development, attorney
contact, and psychological symptoms. Law and Human
Behavior, 29,723–742.CAPACITY TOWAIVERIGHTS
With the Fifth Amendment right against self-
incrimination and the Fourteenth Amendment right to
due process as its grounding, the U.S. Supreme Court,
in Miranda v. Arizona (1966), established important
procedural protections for criminal suspects in custo-
dial interrogations. Aware of the inherently coercive
nature of interrogations and of suspects’ risk of self-
incrimination, the MirandaCourt mandated that the
police notify suspects of their right to silence and
legal representation. The Court further ruled that a
suspect may waive these rights, but the waiver would
be considered valid only if it were provided know-
ingly, intelligently, and voluntarily.
To determine the validity of a Miranda waiver,
courts typically examine the totality of circumstances
under which the waiver was given, including both sit-
uational characteristics (e.g., length of the interroga-
tion, strategies used to obtain the confession) and
characteristics of the defendant (e.g., age, intelli-
gence, prior criminal history). However, the question
of how to weigh each of these factors in determining
the validity of a waiver is left to the discretion of the
judge. Thus, a judge or an attorney may request a
forensic evaluator to aid the court in determining adefendant’s capacity to meet the requirements of a
valid waiver of rights.Identification of Relevant Capacities
The first two elements of the standard,knowingand
intelligent, are related to individuals’ cognitive abili-
ties: the ability to understand the meaning of the rights
and to appreciate the consequences of waiver and non-
waiver decisions. Thus, forensic evaluators are able to
conduct clinical and psychological assessments and
inform the courts about individuals’ specific abilities
or deficits in these areas (e.g., whether they have the
cognitive developmental and/or intellectual capacities
to grasp the concept of a right as an entitlement rather
than as a privilege that can be revoked). The voluntari-
nesselement, however, is more speculative because it
considers the interaction between the situational char-
acteristics of the interrogation (e.g., coercive police
interrogation strategies used to extract a confession)
and individual characteristics that may influence a
defendant’s waiver decision (e.g., susceptibility to
suggestion by authority figures, psychosocial immatu-
rity). Because forensic evaluators have little additional
information to offer the courts about the situational
characteristics, they typically address the issue of vol-
untariness less directly; they examine the capacities
related to the knowing and intelligent elements and
provide information about defendants’ specific vul-
nerabilities that may influence their waiver decisions.
To meet the knowing and intelligent requirements
of a valid waiver, one must demonstrate three primary
capacities. First, one must demonstrate the ability to
comprehend the meaning of the Miranda warnings.
Simply, does the suspect understand the basic mean-
ing of each of the warnings?
Second, one must be able to appreciate the signifi-
cance of the rights. Slightly more complex than the first
capacity, this ability is related to whether suspects are
able to appreciate the importance of the warnings within
the context of the legal process. For example, suspects
may understand that they have the right to remain silent.
However, if they lack an understanding of the adversar-
ial nature of the criminal proceeding and mistakenly
believe that exercising the right to silence will make
them appear guilty, then their misunderstanding might
impair their ability to benefit from the right.
Last, one must display the ability to reason about
choicesto make a waiver decision. This more com-
plex ability, compared with the previous capacities,Capacity to Waive Rights——— 59C-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 59