Court Cases on the Waiver of Rights
132 F. 3d 40, 1997 WL 787487 (9th Cir.)
Aripa waived her Miranda rights and confessed to distributing cocaine. She sought to overturn her resulting conviction on the ground that her waiver of those rights was not knowing and intelligent.
Aripa offered testimony that she had an IQ of 76, and that neuropsychological testing revealed a "generalized impairment consistent with either fetal alcohol syndrome or an extended high fever." (1997 WL 787487 at *4.) The psychologist did not state any conclusion regarding Aripa's ability to waive her rights. Aripa had been a special education student who dropped out of school in the eighth grade.
The detective who questioned her testified that Aripa said she understood her rights, said she would waive her rights, and signed a form waiving her rights. The detective also stated that Aripa "seemed fine", spoke "freely and clearly" and was "responsive." (1997 WL 787487 at *4.)
The courts held that Aripa's waiver of her rights was valid. The copy of the opinion we have is incomplete, so the reasoning is unclear.
672 So. 2d 1319 (Ala. Crim. App. 1994)
The defendant objected to the introduction at trial of an incriminating statement he had made after receiving a Miranda warning and signing a waiver of rights form.
Dobyne asserted he lacked the mental capacity to understand those rights. The evidence he offered included testimony that (a) he appeared to have FAS, (2) he had an IQ of 73, (3) he had mental capability of a 12 or 13 year old. A former teacher testified that Dobyne could read "some" but that, "in her opinion, he could not have understood all the terms in the rights waiver form he signed." He had, on the other hand, graduated from high school. 672 So. 2d 1336.
The trial judge had concluded the waiver was knowing. Because Dobyne's attorney had failed to raise this issue at the suppression hearing (but apparently did raise it later), the admission of the statement could be overturned on appeal only if there was "plain error." 672 So. 2d at 1336. The appellate court ruled,
672 So. 2d at 1337. This first sentence is unclear. If it asserts that Dobyne was capable of understanding the concept of a right to remain silent and speak with an attorney, the sentence is correct but not dispositive--the issue is whether Dobyne did understand that at the time he signed the waiver. On the other hand, if the sentence asserts there is no evidence Dobyne did not understand at the time that he had those rights, the sentence is simply incorrect--the teacher's testimony is evidence of precisely that conclusion.
The opinion contains several statements relevant to a determination of whether an individual with FAS/FAE had made a knowing waiver of his or her rights.
(2) "[A] defendant's mental impairment, even if it exists, is merely one factor affecting the validity of his waiver of rights." 372 So. 2d at 1337.
(3) "[T]he fact that a defendant may suffer from a mental impairment or low intelligence will not, without other evidence, render a confession involuntary." 372 So. 2d at 1337. This seems somewhat beside the point; evidence insufficient to prove an act was voluntary might be sufficient to prove a waiver was not knowing and intelligent.
Dobyne subsequently sought without success to argue that he was denied the effective assistance of counsel in presenting this argument. Ex parte Dobyne, 2001 WL 670506 (Ala.); Dobyne v. State, 2000 WL 869500 (Ala. Crim. App.).
2001 WL 1658885 (Iowa Ct. Appeals)
Foell was convicted of murder. He brought a post-conviction proceeding, and alleged that he had been denied the effective assistance of counsel, relying largely on the failure of he attorney to introduce evidence that Foell had FAS.
Foell argued, first, that that evidence would have demonstrated that he lacked the specific intent necessary for a conviction of first degree murder. It is not entirely clear what specific intent was required by state law. The appellate court rejected this argument on two grounds. (1) "The argument that Foell was only guilty of second-degree murder was well developed and presented by his trial attorney." 2001 WL 1658885 at *3. The difficulty with this explanation is that the argument which was actually made was not sufficiently persuasive; evidence of FAS might have made it more so. (2) "Foell's trial attorney did substantial research before trial and found no case where the syndrome had been successfully raised as a defense. The decision not to attempt to introduce such evidence was a strategic decision." 2001 WL 1658885 at *3. Research was unlikely to unearth such a case, since a successful defense would result in an acquittal and thus no published opinion. The relevant question was more of a medical nature--is FAS capable of preventing an offender from forming a particular specific intent? There is no suggestion that the trial attorney evaluated that issue.
Foell also objected that evidence that he had FAS should have been offered to show that his confession was not based on a knowing waiver of his Miranda rights. The appellate court rejected this, stating "Foell has failed to show that advancing [the FAS argument] at the time of the suppression hearing would have resulted in the suppression of Foell's confession. Similar claims for suppression of confessions have not been successful." 2001 WL 1658885 at *3. The opinion cites four earlier Iowa decisions. Those cases, however, hold that limited intelligence is relevant to a determination of whether a waiver was knowing, and insist that that determination is primarily the responsibility of the trial judge. The fact that an appellate court might have sustained the admission of the confession, despite evidence of FAS, is not the same as a prediction about how the trial judge would have weighed that evidence.
In the reported cases confessions were admitted from defendants with low IQs; in several of them the court was convinced the waiver was knowing because the defendant had held a job, had repeatedly been given the same warnings in prior arrests, or had been given a special version of Miranda for juveniles. One case mentions an expert who did a study and concluded that individuals with an IQ of 70 or below are unlikely to understand a Miranda warning.
The court cited cases are State v. Rhombert, 516 N.W. 2d 803, 806-07 (Iowa 1994); State v. Reid, 394 N.W. 2d 399, 401-04 (Iowa 1986); State v. Conner, 241 N.W. 2d 447, 453-54 (Iowa 1976); State v. Fetters, 202 N.W. 2d 84, 87-90 (Iowa 1972). These decisions at times fail to distinguish between claims of involuntariness and claims that a waiver, although not coerced, was not knowing.
153 N.C. App. 358, 570 S.E. 2d 128 (N.C.Ct. App. 2002)
Jones was convicted of murder and several other offenses based in part on statement he had made to the police. Jones moved to suppress his statements, alleging that he lacked the mental capacity to knowingly and understandingly waive his Constitutional rights. He offered expert testimony that he was mentally retarded, with an IQ between 55 and 65, and that he had FAS. 570 S.E. 2d at 132.
The trial court admitted the statements, holding that they had been given freely, voluntarily and knowingly. 570 S.E. 2d at 363. Police officers gave Jones his Miranda rights in a particularly clear manner. 570 S.E. 2d at 361-62.
The appellate court upheld the admission of the statements. It deferred greatly to the trial court's findings of fact. 570 S.E. 2d at 363-64. The appellate court's own evaluation of the issue does not always clearly distinguish between whether the confessions were voluntary and whether they waiver was knowing. That court's discussion of whether the waiver was knowing focusses purely on the defendant's I.Q.. There is no consideration of whether FAS itself might have some additional significance in determining whether a defendant understood his Miranda rights.
This decision and others like it suggest that in presenting and evaluating a claim that an individual with FAS/FAE did not knowingly waive his or her rights, more particularized consideration should be given to the impact of FAS/FAE. Individuals with that disability often have considerable difficulty understanding cause and effect; that would be of obvious importance to an individual's ability to understand, for example, a warning that if he gives up his rights the result will be that what he says can and will be used against him.
122 N.M. 794, 932 P. 2d 484 (N.Mex. 1996)
Setser was convicted of murder and several other crimes. She moved to suppress her confession, arguing that she was unable to knowingly waive her Miranda rights.
At the time of the confession Setser was 16. There was conflicting evidence as to whether her IQ was 77 or "average." Setser offered expert testimony that her mother had been an active alcoholic during her pregnancy, and that Setser "displayed symptoms of fetal alcohol syndrome." 932 P. 2d at 486. There did not, however, appear to have been an actual diagnosis. At the age of 13 Setser was admitted to a psychiatric hospital for molesting other children, and was treated for depression and severe behavioral problems. 932 P. 2d at 486.
In upholding admission of the confession, the appellate court explained:
932 P. 2d at 488. This portion of the opinion suggests that the court in a case such as this wanted an expert witness to explain that FAS, and an I.Q. of 77, and/or other conditions would result in an inability to understand legal rights and the repercussions of waiving those rights.
Like other decisions regarding waivers of rights, this decision makes clear that it would be extremely valuable to have a study, similar to the MacArthur study regarding juveniles, regarding (a) the I.Q. level at which adults or adolescents do not understand Miranda rights and the repercussion of waiving them, and (b) the impact on such understanding of FAS/FAE.