Encyclopedia of Psychology and Law

a number of specialized tests that can assist the clini-

cian in evaluating the psychological factors relevant to

the voluntary prong of the Mirandawaiver.

It is within the realm of the mental health profes-

sional’s expertise to opine directly on the knowing and

intelligent prongs of the Miranda waiver. A knowing

waiver of rights is defined as the individual’s under-

standing or comprehension of the rights combined

with the manner in which the rights were administered

by law enforcement. For example, one would expect

different levels of understanding in illiterate suspects if

they were required to read the rights on their own ver-

sus having the rights read to them. An intelligent

waiver of rights is different from a knowing waiver of

rights. The former involves knowledge of the rights,

decision-making capacity, and appreciation of the sig-

nificance of the rights based on one’s knowledge of

how the legal system works. Thus, while suspects may

understand that they have a right to defense counsel, an

intelligent waiver of the right to counsel cannot be

made if they erroneously believe that a defense attor-

ney would only work on behalf of innocent defendants.

Evaluation of a defendant’s competency to confess

requires a comprehensive forensic evaluation. An

extensive clinical history, examination of mental status,

and record review are generally combined with psycho-

logical testing to assess a defendant’s cognitive and

emotional functioning. The focus is directly on the psy-

chological functioning that would have been displayed

at the time of the police questioning. Given that the

evaluation must be functionally based—that is, clini-

cally relevant data should be integrated with the appro-

priate legal criteria (i.e., knowing, intelligent, and

voluntary), the mental health professional must specif-

ically assess behavior relevant to the legal criteria.

Thomas Grisso developed four psychological tests to

aid in the assessment of a juvenile’s or an adult’s abil-

ity to make a knowing and intelligent waiver of rights.

Although these tests (like any other test) are subject to

misuse, if used properly as part of a comprehensive

competency assessment, they can provide useful data to

the clinician and, ultimately, to the trier of fact.

The assessment of competency to confess must also

take into consideration the complexity of the wording of

the rights. In general, the Miranda warnings are written

at approximately the seventh-grade level of reading

comprehension. Yet the complexity of the wording of the

rights varies greatly within and between jurisdictions.

Research has shown that 23% of adults do not

understand at least one of the four Mirandarights.

Moreover, 70% of adult nonoffenders and 43% of

adult offenders erroneously believe that the right to

remain silent is revokable by the judge. Juveniles aged

14 years and below do not understand their rights as

well as older juveniles and adults. With juveniles and

adults, intelligence is positively correlated with

Mirandacomprehension.

I. Bruce Frumkin

See also Capacity to Waive Rights; Confession Evidence;

Grisso’s Instruments for Assessing Understanding and

Appreciation of MirandaRights; Reid Technique for

Interrogations

Further Readings

Cloud, M., Shepherd, G., Barkoff, A., & Shur, J. (2002).

Words without meaning: The constitution, confessions,

and mentally retarded suspects. University of Chicago

Law Review, 69,495–624.

Frumkin, I. B. (2007). Psychological evaluation in Miranda

waiver and confession cases. In R. Denny & J. Sullivan

(Eds.),Clinical neuropsychology in the criminal forensic

setting. New York: Guilford Press.

Grisso, T. (2003). Evaluating competencies: Forensic

assessment and instruments(2nd ed.). New York: Kluwer

Academic.

Miranda v. Arizona, 384 U.S. 436 (1966).

COMPETENCY TOSTANDTRIAL

The legal standard for competency to stand trial in the

United States was articulated by the U.S. Supreme

Court in Dusky v. United States(1960), wherein the

Court determined that a defendant must have “suffi-

cient present ability to consult with his lawyer with a

reasonable degree of rational understanding” and a

“rational as well as factual understanding of the pro-

ceedings against him” (p. 402). Mental health profes-

sionals are called on to assist the courts by evaluating

defendants’ competency to stand trial, often aided by

assessment tools designed specifically for this pur-

pose, and by providing treatment for the restoration of

competency in incompetent defendants. Psychological

research in this area has examined the reliability of

competency assessments, the characteristics of defen-

dants deemed incompetent to stand trial, and the char-

acteristics associated with restorability.

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