“You have the right to remain silent…”
Obstacles to understanding the Miranda warning
TASA ID: 1475
On September 13, 2022, at 3:00 p.m. (ET), The TASA Group, in conjunction with linguistics expert Alan Perlman, presented a one-hour interactive webinar presentation, “You have the right to remain silent…” Obstacles to understanding the Miranda warning, for all legal professionals.
This session explained why the Miranda warning is so easily misunderstood (or not understood at all); the result is the abrogation of rights that the warning was designed to protect. Numerous factors contribute to the poor comprehension (and low readability scores):
- the situation and contexts in which the warning is used;
- the special linguistic abilities required for understanding it;
- the grammar, vocabulary, event sequencing, and other features of the text.
The listener must comprehend all of this in less than a minute, which is the time it takes to deliver the warning, and sometimes obstacles are concurrent, thus multiplying the burden of comprehension. Alan concluded with a suggested workaround, which is markedly different from the standard version but accomplishes the intended aims.
About the Expert:
Alan Perlman is a linguistics expert, applying the principles of linguistics and insights from many years of analyzing language, both as an academic and as a professional writer to the examination of legal issues involving authorship, plagiarism, copyright infringement, and the interpretation of contracts and other binding documents.
Note: This webinar was approved for CLE credit in CA, NJ, PA, and IL.
Disclaimer: Please remember that if you are applying for CLE credit you must attend for the full 60 minutes of the LIVE presentation, not the ONDemand version. If a participant is seeking credit in states we are not approved to issue credit and the participating party seeking credit incurs a fee to receive said credit, it is not the obligation of TASA to remit payment for such credit. It is the participant's obligation to remit payment to the state in which they would like to receive credit.
Transcription:
Interviewer: Good afternoon, and welcome to today's presentation, "You Have The Right to Remain Silent... Obstacles to Understanding the Miranda Warning." The information presented by the expert is not to be used as legal advice and does not indicate a working relationship with the expert. All materials obtained from this presentation are merely for educational purposes and should not be used in a court of law, sans the expert's consent, i.e., a business relationship where she or he is hired for your particular case.
In today's webinar, Alan will discuss, why the Miranda warning is so misunderstood or not understood at all, the numerous factors that contribute to the poor comprehension and low readability scores, the situation and context in which the warning is used, the special linguistic abilities required for understanding it, the grammar, vocabulary, event sequencing, and other features of the text. The listener must comprehend all of this in less than a minute, which is the time it takes to deliver the warning. And sometimes obstacles are concurrent, thus multiplying the burden of comprehension.
To give you a little background about our presenter, Alan M. Perlman is a linguistics expert, applying the principles of linguistics and insights from many years of analyzing language, both as an academic and as a professional writer to the examination of legal issues involving authorship, plagiarism, sorry, copyright infringement, and the interpretation of contracts and other binding documents.
Attendees who require a passcode, the word for today is "Miranda." During the Q&A session, we ask that you enter this passcode into the Q&A widget for CLE reporting purposes. The Q&A is located to the right of your screen. Please, remember that if you are applying for CLE credit, you must log onto your computer as yourself and stay for the full 60 minutes. You're also required to complete the survey at the end of the program. Please note that CLE credit cannot be given to those watching together on a single computer. Tomorrow morning, I will send out an email with a link to the archive recording of the webinar. Thank you all for tending today, and Alan, the presentation is now turned over to you.
Alan: Thank you, Nadja. And hello, everyone, and welcome to our webinar. Today, we will be examining a brief but critically important bit of text. I will explain why the context and the conditions under which it is used militate against understanding and account for its low readability scores. Then I will go through the text and point out the linguistic features that impede understanding, including the ones that pose special problems for non-native speakers. Finally, something I consider a useful workaround accomplishing the purpose of the warning but in a different way. Let's start with the problem.
I recently saw promo for an upcoming rerun of "Magnum P.I.," and the only audio in the clip was the Miranda warning. It's a staple of TV crime dramas. And if you're an American citizen and a native speaker of English, it sounds stark and threatening. When they read you your rights, you are already in deep trouble. But surprisingly, a great many people don't see it that way. They may not even understand the rights they're giving up. Consider what must be an enormous number of native English speakers who have difficulty understanding the warning. And my core source for this is a study completed by Eugene Briere in 1978. He notes that the grade level scores resulting from applying a various readability formulae mean that a person reading the Miranda material would have to have completed just over an eighth-grade education to understand 50%, and that's a written version.
Now, add in the millions living here, legal or not, who are non-native speakers because America has absorbed, over the past few decades, vast numbers of people who speak and understand English with practically an infinite number of degrees of proficiency, typically influenced by the native language, but all of which fall short of a native speaker's command. I also make reference to the variety of scenarios under which the warning is delivered. It could be in the midst of a contentious arrest, it could be in an interrogation room. And all of these also influence understanding. But why the problems even for native speakers? The answer lies in several subtle aspects of the warning. Its grammar, its vocabulary, its key concepts, the sequencing of information, and the pragmatic aspects of repeatedly being asked if one understands given the consequences of saying no.
To begin with, and before we even get into grammar and vocabulary, I wanna note that the warning itself, which is 88 words written that go by in less than a minute, allows precious little processing time. Linguists have long been searching for linguistic universals, but surely, time is one of them. Everything must be said in sequence, allowing the audience, or the hearer, or the reader to progressively assemble the structure and meaning of what's being said as it's being said. It's an amazing task. I really have no idea how it happens. And on this point, I would also add that understanding is a function of simplicity and complexity. If an utterance is more complex, it's harder to understand, and I'm sorry, understanding is a function of complexity and length, shorter understanding, shorter utterances, which are simpler or easier to understand. That's kind of intuitive, but it really applies to the Miranda warning, which is both short and complex multiplying the complexity and reducing the chance of understanding.
Furthermore, and this is a very key point, understanding the warning requires a different set of linguistic abilities than are required by questioning. In a typical police interview or any interview, or actually, a psychotherapeutic interview, the interviewee is merely answering questions. The interchanges are short, and the person is constantly receiving verbal and nonverbal cues from the interrogator. Now, this skill is very different from what is required to comprehend and produce longer interconnected, uninterrupted texts like the Miranda warning. The technical term is CALP, cognitive academic language proficiency, which is used in, "Context-reduced environments that require higher-order thinking skills such as analysis, synthesis, and evaluation." I've given you my source there, Aneta Pavlenko. And that, "I'm not very out about the law part," is a quote from the non-native speaker whose grammar Pavlenko analyzed in order to compare it to the complexity of the Miranda warning.
But let me give you a simple example, because the difference between CALP and direct response is even operative at the sentence level. If I ask, "So, when did you go to his house?" I'm asking for a specific, focused, directed response. I just wanna know what time, what day, whatever. It's a single-point question and a single-point answer. Now, compare this to, "So when you went to his house, what did you talk about?" This requires recall of the entire event and selecting one or more portions of it, processing them, and basing the response on that. The point here is that CALP is required to understand the Miranda warning, which, as it stands, is really a barely connected list that must be assimilated upon first hearing.
But this is just the beginning of problems with the warning itself. Here's an overview of the items I'm gonna discuss, and then I'm going to summarize these before I get to my workaround and flesh them out. But I'll be talking about grammar, vocabulary, key concepts, especially a right or the right, the sequencing of information, and as I noted earlier, the pragmatic aspects or functional aspects of repeatedly being asked if one understands.
So, this is the...it's an overview on the issues that I'll deal with. First, let's start with, "You have the right to remain silent." Right away, we encounter a problematic word, "The right." This word encapsulates an entire legal system and political doctrine. It's a government-guaranteed ability that one has a constitutional right. But in many, if not most of the countries of the world citizens, have no government-guaranteed rights as implicitly defined in the Miranda text. In such cases, I can't overemphasize this, defendants cannot be expected to understand the meaning and implications of, you have the right, despite its importance to the whole proceeding. I'll come back to this again and elaborate.
Next, remain silent, also problematic. It confuses the listener. How can I remain silent when the officer and I have already been talking? The warning should limit the opening sentence at any time, or when I'm asking you questions to get around the problems and hearing and remain silent. This revised wording fits the realities of the situation. It assumes that the defendant would've been silent during a question or any other time when the officer is speaking. So, now, if you wishes, you can remain silent. On this point, the eminent forensic linguist, Roger Shuy, S-H-U-Y, notes that, "Most people know what silence is. This is perhaps the clearest of the Miranda admonitions. On the other hand, even if suspects know what remaining silent means, it is quite another thing to be able to do it."
Let me continue with this because it is right on point and very important to our discussion. Roger Shuy continues. "Most human beings are uncomfortable with silence while in the presence of others because it violates the cooperative principle. But just how silent must one be to be considered silent? Does silence really mean that absolutely nothing will be said without forfeiture of the waiver? Does remaining silent refer only to the substantive topic of the alleged crime? Can one engage in small talk, for example, and still meet the requirement of remaining silent? If so, what actually distinguishes small talk from the kind of talk that will give the police the right to start questioning again?" And Shuy concludes that, "It has been my experience that many suspects who invoke their right to remain silent, often continue to talk anyway. I have also noticed this in my forensic work."
Let's continue. "Anything you say can and will be used against you in a court of law." This is a briar patch of complications. Consider the first three words, anything you say, pretty transparent to a native speaker. We have an indefinite noun followed by a noun phrase, in this case, a pronoun plus a verb. Now, these three words go by very quickly. If you have a native speaker's knowledge of English, you will probably know that, and it is a relative clause. Anything you say, you say modifies anything. Furthermore, the relative pronoun that is omitted as is permissible under the rules of English grammar. A non-native speaker would have to know all of those things that a post-posed subject and verb, actually can be a relative clause with the objective relative pronoun missing. All of this goes by in a fraction of a second in three words, the hearer has to be able to process it grammatically in the ways I've just described.
And if the non-native speaker is unaware of any of these principles, anything you say is not going to be fully understood or understood at all. Now, at this point, if you're a non-native speaker being interviewed and you have understood the first of three words, you come upon a perplexing, illogical pair of alternatives, you have to hear the rest of the sentence as, "Can be held against you and will be held against you." In other words, I've filled in all of the implied words. Both can and will are grammatically linked with anything and with everything that follows. Comprehension is made even more difficult by the fact that will trumps all of the other modal auxiliaries. The modal auxiliaries are a small set of words, can, could, may, might, shall, should, that add various kinds of contingencies to verbs, such as possibilities and obligations, but will stands alone as a direct binding proclamation about the future.
Would might have done just as well, because now the defendant has been told that every syllable he or she utters will be scrutinized. Also, if something will be used against me, why bother with can, is that to confer some kind of legal approval on the will part? Another puzzle, and we're not even out of this sentence yet, consider used against you. This is a highly abstract metaphor, very different from, say, a weapon being used against you. If you are unfamiliar with the English language, in general, and the special language of legal proceedings, it will be difficult, if not impossible, to understand or anticipate how your words recorded here and now can be used against you. I have been involved in cases where defendants acknowledge understanding of this right and go ahead and reveal inculpatory information.
Clearly, such individuals do not understand use against you and its implications for what they say to the officer because Miranda is, in effect, asking defendants to imagine themselves in circumstances that do not yet exist. The complexity of the sentence is increased, and understanding is further inhibited by the macro statements that is to say, used against you applies to anything the defendant says and will say, and that these consequences can and will occur.
Let's continue with the right to talk to a lawyer and have him present with you while you are being questioned. Again, multiple obstacles in a single sentence. First of all, without a sequence, thus hindering understanding of the whole text. Ideally, if you agree to talk to me, should be the second item in the warning after, you do not have to answer any of my questions. So, if you agree to talk to me, followed by, you do not have to answer any of my questions, But if you agree to talk to me, that's the sequence of material that corresponds to the real world. But the way it's written now, it undermines comprehension. Defendants must first know that they don't have to say anything. Then, if they decide to answer questions, they're gonna have a lawyer.
Now, many non-native speakers are uncertain about what it means to have a lawyer, present. Lawyer and present are two more key concepts on which understanding depends. Assuming that the non-native speaker knows that present means here, yet, it cannot be assumed that non-native speakers understand what it means to have a lawyer present. The confusion is even deeper.
Roger Shuy reports the following from his many years of experience with such cases, "While suspects generally seem to know what 'an attorney' is, they often seem to have been asking for an authority figure to help and advise them in the time of trouble." Shuy reports from his experience that, "There are enough of these pleas for help from authority figures, such as a relative or a parole officer, to suggest that really the speakers were simply not thinking of an attorney as their lone source assistance. And even if the expression have an attorney is understood, the suspect is still faced with the problem of knowing what is meant by present. Doesn't mean right now. If so, how could that be since it's only logical that this would take considerable time to arrange? Does the suspect think that being present means doing this very interrogation that seems to already have begun, at which an attorney could be at the best, a very late arrival, perhaps too late, in fact?"
Okay. I'll continue. "If you cannot afford to have a lawyer, one will be appointed to represent you before any questioning if you wish one." Problems include words likely to be unfamiliar to many non-native speakers, afford, appointed, represent, and perhaps most of all, questioning because that's a term of art that does not reveal the nature of the interrogation to come. And further contributing to the confusion is the double conditional. Look at the two if clauses, one's at the beginning, one's the end. So, the two preconditions are split and makes the sentence even more difficult to understand. At least the wish part should proceed the afford part, "If you wish a lawyer and you cannot afford one," at least we have logical sequencing events there.
Finally, I want to direct your attention to one. Here, with the meaning of a lawyer. It means an example of a category just mentioned. I brought drinks, does anybody want one? It's a pronoun in a class by itself with complex rules for usage. And this may not be in the non-native speaker's range of competence or comprehension. Also, note the fact that one is at the front of a clause where it can have multiple meanings. It could be a numeral, it could have other meanings, and it's not all clear that it has the pronoun meaning referring to a lawyer.
The standard, what I'm calling the standard version read as follows, "After the warning and in order to secure a waiver, the following question should be asked, do you understand each of these rights I've explained to you? Having these rights in mind, do you wish to talk to me?" I've only discussed how non-native speakers may have no understanding of rights as we know them and as embodied in the Miranda warning. But please now consider understand, the verb understand. As for the repeated questions as to whether someone understands, well, a false yes answer could be given even if the person doesn't understand it because the interviewee does not want to appear stupid or uncooperative. These are powerful motivations that may be partly responsible for the fact that all too often non-native speakers say they understand the word or phrase when they merely recognize it.
As Roger Shuy notes, "Word recognition ability suggests that listeners hear a word and recognize it without necessarily being able to use or apply it themselves. They have heard it before, they may rightly or wrongly think they know what it means, but they may not be able to use it in a sentence or define it out of context." And this is another example of the CALP ability operating at the word level. Recognizing the word is one thing, but being able to apply the word and use it in context is quite another. Thus, any or all of the defendant's assertions that he or she understands a word may only mean that he or she recognizes it.
So, the bottom line here is that if a defendant or interviewee does not know the meaning of right and understand, which are repeated throughout the dialogue, then, in my opinion, the standard wording of the warning cannot, a priori, be fully comprehended, regardless of the differences between the language of the warnings and the capabilities of the speaker. What a mess. A statement meant to protect the person in custody is completely, incorrectly, or vaguely understood, if at all, resulting in the deprivation of rights.
Let's move on to some possible solutions before I offer my own. One is to just, obviously, rewrite the whole thing. And it's a very interesting article that I've noted by Michael Cicchini, "The New Miranda Warning" in SMU Law Review. As decades of experience with the defects of the texts have accumulated, so have suggestions about rewriting, but which, if any, is authoritative. I wouldn't attempt to content rewrite because legal authorities have come up with new things for it to say, and I can't rule on those. So, my revision will deal only with the standard version. But to go back to Cicchini's article, he would require that a new Miranda, "Provide suspects with complete and relevant information about the consequences of their choices," for example, that refusing to answer questions cannot be held against them in court.
Also, with the new Miranda, as she notes, "Must include instructions on how to actually invoke the underlying rights." For example, a suspect cannot invoke the right just by remaining silent. I urge you to look this article up. It's an interesting article that deals with some of the language issues raised here. Ultimately, though, the author's rewrites, unfortunately, retain many of the complexities of the standard version, and they're too long. Later on, I'm gonna provide a simple, usable revision that is not, as I say, wedded to the wording, using that phrase again, and focuses on the pragmatic, that is to say, the functional aims of the warning as it now exists. That is to say, I'm going to use different wording and interactional techniques to attempt to make my version eminently transparent, and thus usable.
A second alternative is to conduct exhaustive research into each defendant's language competence in order to compare it to the complexity of Miranda and assess understanding. This is what Pavlenko did. But in a normal course of the judicial process, who has the time or the money? This problem has to be fixed, and soon. We already have the basis, the rational basis for a quick, effective solution. I emphasize, again, the knowledge that you need almost a ninth-grade education to understand even half of it. And that's a written version as opposed to being uttered in less than a minute. Operating in a second language increases the likelihood of incomprehension, even if the non-native speaker speaks near-perfect English, the inherent problems of the warning still apply.
So, if you can't do a study of a kind that Pavlenko did, I can give you some quick pointers to do a quick, rough version of what Pavlenko did to assess the likelihood of the understanding of the warning by listening to the individual's spontaneous speech. It doesn't take a lot of effort to tune your ear to this, and it's only a couple of things. Is the individual using short, simple sentences, not conjoined, not embedded, no relative clauses, do they make basic grammatical errors? And do they exhibit ability in CALP? Can they just give one-point answers, or are they able to process what's said and respond to it? That is a quick and dirty way to assess the non-native speaker's competence.
A third and simpler fix is to operationalize it. And this means to reduce it to functionality that this interviewee can understand. Even without modifying the standard version, the officer or interrogator could determine if the interview has the CALP set of language skills by asking for key concepts, questions like, "So, do you know what I mean when I say you have a right to have a lawyer present? What's that mean to you?" And if the person can explain it in different words, it's a strong sign that he or she has conceptual function in English. In other words, that they're capable, to some degree, of understanding the warning as delivered. This alternative would be effective from most of the standard version. But regrettably, it's less practical for the often repeated, "You have a right." Just defining a right in the legal sense might add a half hour to the interview, and I suppose would require law enforcement personnel to learn a legal definition themselves.
And let me add another comment on the term, "right." It would be unfortunate if precedent requires the continued use of "right" in any future versions. Yes, I know it's sacred to all of us Constitution-believing Americans, constitution-loving Americans central to the standard version. But it may mean nothing to the interviewee, especially a non-native speaker with limited English skills. To others, including native speakers, "right" may have the broad vernacular conversational meaning of an entitlement or a justification, as in, you have no right to criticize him, a usage we hear every day, as opposed to the legal meaning it has in Miranda. And pragmatically speaking, or functionally speaking, as I'll explain shortly, it is peripheral to the intent of Miranda, which is to have a listener understand a small set of propositions.
Another alternative is to call a linguist or some other similar qualified expert who can compare the language ability of a speaker, and this would be derived from audio or video samples or transcribed text. This is how the majority of my cases have gone, and often an opinion as to whether they render him or her capable of understanding Miranda. I admit it's inferential, it's an educated guess, but in your life, there's no time to give interviewees elaborate tests of the English language ability. Still, if there's enough data, the linguist can give a quick and possibly revealing assessment of a non-native speaker's English language ability in the lexicon, syntax, and other areas. And it's worth remembering that English as a second language skill are a secondary issue, given the inherent difficulties of warning even for native speakers. Still, such assessment by a linguist could be additional useful evidence that the defendant didn't understand the warning.
Number five is, have the Supreme Court or perhaps the Attorney General cut the Gordian knot and be in the process of producing a new and definitive version. And this is important because the rights granted by Miranda go to the rights guaranteed in the Constitution, one of which is the freedom from self-incrimination. So, all this confusion resulted in abridgment of constitutional rights. And, in my opinion, there is every reason why the Supreme Court or the Attorney General, or any governmental agency is appropriately charged with supporting a constitution. And the Fifth Amendment should get involved. And the output would be a decree that here's our new version, it's gonna be used everywhere, verbatim, starting January 1st, and it could be the product of a committee of linguists, and lawyers, and judges all working together. The linguists are there to make sure it's brief and clear. And that would solve the problem, but it would take time. And, of course, the court has been involved in interpreting the warning, but that misses the point. We really have to scrap it and start over and produce a version that doesn't require interpretation. On balance, I vote for number five. The language of the law must guarantee rights not undermine them.
Well, there are solutions, and there are these problems. And before I go into my workaround, let me now flesh out the obstacles that I outlined earlier. Remember, these are concurrent in 88 words that go by in less than a minute. Whoever hears it, non-native speaker or not, has got to deal with several complexities in vocabulary and grammatical structure, has got to have the analytic and synthetic ability as opposed to simply interactive skills. It got has to deal with confusion in the sequence of events, as I mentioned, in case of remain silent or have a lawyer present. It depends heavily on knowing the meaning of right and understand.
Next, it's typically delivered in a rapid, perfunctory way that impedes everybody's understanding but especially non-native speakers. And a peripheral issue that does not reside in language itself but it is part of the social context, and that is the fear of appearing obtuse or uncooperative, which influence the defendants' or detainees' responses. So, if number five, a Supreme Court or attorney general-initiated rewrite by committee may seem optimal, it is a long way off. Is there anything that can be done right away? Let me begin by saying, the actual wording of the warning is not codified by law. I did some research on this, and there is a legally valid opportunity for a radical rewrite. This is a quote from Wikipedia, but it reflects research I've done elsewhere, "The specific language used in the warning varies between jurisdiction, but," and here's the part I would like to emphasize, "the warning is deemed adequate as long as the defendant's rights are properly disclosed such that any waiver for those rights by the defendant is knowing, and voluntary, and intelligent."
The reason for the urgency is that under present conditions, the inherent incomprehensibility of the warning and the conditions under which it's used, both contribute to the failure of the interviewee to apprehend the very rights granted by the warning. So, given that's an urgent matter, I'm gonna offer one suggestion to address the misuse of the Miranda warning to prevent injustice, couple of preparatory comments. In proposing alternatives, we must first consider the conditions under which the warning should be delivered. Either there is what I call conversational space, or there is not. That is, the warning may be issued in the midst of a contentious arrest, even if the officer tries to subdue the suspect, in which case, this flurry of legal language has, in many cases, little or no hope of being understood. The right words were uttered, you all were satisfied, but this is far from optimal.
The warning should be issued in the calm of an interview room, or at least when the suspect is quietly and calmly seated in a police vehicle if that is possible. This is an important precondition because if there is no conversational space, if the officer cannot, "Take the floor" with this suspect's attention, assuming no serious drug impairment or the like, and guide the interaction, then there's no hope of the warning accomplishing its purpose. But let's say we have conversational space, let's say we have a stable situation where the officer can talk calmly and be heard. Under these circumstances, how might the warning lead? How could it be administered for maximum efficiency? Well, the alternative must be short and unmistakably clear. Ideally, it should test for understanding, as the standard version does. And omitting for simplicity take all the other things the warning could say. Let's just stick to the pragmatics of the standard version, what it tries to accomplish.
In the version that follows, I have tried to address all of the obstacles mentioned earlier with simplified language that avoids the difficult term, "right," and a troublesome pronoun "one." I have replaced the all-inclusive "will" with a more hypothetical "can." This version enumerates the three parts of the message in the order that corresponds to real life. I'm going to ask you some questions, but first I have to tell you three important things. First, you do not have to answer any of my questions if you don't want to, you don't have to talk to me at all. Second, if you answer my questions, you can have a lawyer, a friend, or someone else there to help you. If you can't pay for a lawyer, we will get a lawyer for you and we will pay him. Third, we will be recording or writing down everything you say to us. If your case goes to court, if there is a judge in a trial, we can take anything you said and play it back in court if it helps us. Now, I will say it all again be sure you understand.
And now, in my revised version, you go through all of the functional aspects of the new Miranda warning. You don't have to answer my questions...in simplified form. You don't have to answer my questions or talk to me, what's that mean to me? Even if the person can repeat it back, means I don't have to answer you or talk to you, then I can take that as a measure of understanding. Similarly, you can have a lawyer or friend here to help you, what's that mean to you? And finally, we can take anything you say and use it against you in court. This version reverses the passive voice of the standard version, puts the events in logical sequence. Remember what I said about language being processed as it's received? Of this version, I would say that in addition to avoiding all the problems mentioned above, it deliberately builds in redundancy with repetition.
And furthermore, and very importantly, I am not wedded to the words, but to the result, which is, does the interviewee understand with a CALP level of understanding the two things that he or she can do? One, not answer, and two, have a lawyer and advisor. And one thing he or she must watch out for, his or her speech being recorded or transcribed and later used in court. Now, there are many speech acts, like prayers or rituals, legal pronouncements, which must be worded a certain way in order to be binding or performative. Performative means merely by uttering a word, you commit the act in question, as in I sentence you to five years in prison, I pronounce your man and wife, you are under arrest. Merely by uttering those words, the act is performed. But Miranda is not one of those. Not wedded to the words also means that as long as the purpose of the text is accomplished, as verified by the repetition test, individuals in different localities or jurisdictions may tweak, even paraphrase the wording, the goal is simply to fulfill the simple goals of the tests. Uniformity of phraseology is not one of them.
As currently used and the context I described, the warning is probably misunderstood as often as it is understood, at least judging by the frequency with which its rights are not invoked. I based the statement on Roger Shuy's long experience and my brief experience. Today, in all too many cases, Miranda works in favor of law enforcement. But when a new version, which may come as jarringly direct, which it is supposed to be, is this transparent to a wider range of native and non-native speakers with varying English comprehension? There's every possibility, the balance will shift a bit toward the suspect. You mean, I don't have to talk to you at all? And the purpose of a warning will actually be served. I have my reservations. I don't doubt that some suspects may even pass the repetition test and still go on to reveal inculpatory information, but I can't say they weren't warned. This concludes my one-sided part of the presentation. Now, I'm happy to take your questions and discuss what I have said.
Interviewer: Thanks, Alan. So, am I to understand this correctly, that the Miranda warning was created to be confusing?
Alan: Was it created to be confusing, is that the question?
Interviewer: Yes.
Alan: I doubt it. I doubt it. It was rather the go-to mode of expression is legal language, and that, I think, is the driving force behind the complexity, both lexicon and grammatical of the warning. There was not a great deal of attention paid to the simplicity of the vocabulary or the grammar. And I did not want to judge that it was created to be confusing.
Interviewer: Okay. Now, another question is, have you been qualified as an expert to give an opinion on this issue in court?
Alan: No. Not in court, but in casework in the writing of expert reports and affidavits.
Interviewer: Okay, here's another question. Where can I find the language in the Constitution that guarantees a right to have a friend present during questioning?
Alan: That's not in the constitution. The honor is referring to the protection against self-incrimination.
Interviewer: Okay. Sorry, I'm going through the questions. Do you agree that unless the defendant's inability to understand sixth it's in the substantive context of the presentation and the defendant so testifies along with expert testimony regarding reading comprehension of the defendant based upon testing, then everything in the presentation is speculative and irrelevant, although very interesting and valuable to know?
Alan: That was a long one. Would you read that again, please? That was a long [inaudible 00:44:17].
Interviewer: Yeah. Hold on. Let me see if I can... Do you agree that unless the defendant's inability to understand sits within the substantive context of the presentation and the defendant so testifies along with expert testimony regarding reading comprehension of the defendant based upon testing, then everything in the presentation is speculative and irrelevant, although very interesting and valuable to know?
Alan: The two parts of the question don't seem to go together. I believe it can be established that the defendant didn't understand the warning, but I'm not sure what the second part of the question is. Is everything I'm saying speculative? No. No, it's based on my long understanding of English grammar, syntax, comprehension, cognition, and semantics. So, I didn't just dream this up, I worked very hard. I try to understand the aims of the warning as it stands and to put down something that accomplishes those aims in a plausible sequence. I think there was two different questions there.
Interviewer: Next question is, what is the best way to challenge your client's waiver, and statement, and a suppression hearing?
Alan: I would've to see the pleadings and documents associated with the individual case. I can't answer that right away.
Interviewer: Okay. I think that was all the questions. Did you have anything else, Alan? Wait, here's question. Is this accepted science?
Alan: To the extent that linguistics is a science and cognition is a science, and by that I mean there are definite principles that affect understanding, and I've tried to leverage them here. And so, yes, in the sense that there are specific principles of cognition that enhance or impede the understanding of speech has been the subject of countless studies and research projects. I'm drawing on some of them here.
Interviewer: Have there been any legal challenges arguing these points?
Alan: I'd have to delve into the bibliography. Probably, yes. But I can't answer offhand, but my guess is yes.
Interviewer: Does the fact that the defendant didn't subjectively understand the warning matter legally pursuant to Miranda and case law, is it not the duty of the officer to read them?
Alan: Again, a two-part question. Yes, it's the duty of the officer to say something as things stand as the duty of the officer to read them. That's the phrase of reading when they read your rights, even if the officer's not reading, he or she is still saying it. What was the first part of the question again, please?
Interviewer: Hold on. Sorry, I'm trying to... Okay. Does the fact that the defendant didn't subjectively understand the warning matter legally?
Alan: Yes, that's what I've been saying all along. I'm trying to produce a version, and by the way, there could be improvements on what I've done, but it is absolutely essential that the defendant understand the warning, it has serious legal implications.
Interviewer: Has there been any successful challenges of criminal charges based on the issues raised today?
Alan: I'm not aware of that. I don't do much criminal work, and I can't answer the question as phrased.
Interviewer: Has this challenge been made by anyone using a linguist argument?
Alan: But what challenge? I'm sorry.
Interviewer: The challenges faced within the...
Alan: The challenge...
Interviewer: Mm-hmm. The readability, you know, the fact that some don't understand it.
Alan: Yeah, the article that I cited by Cicchini, he's not a linguist, but the challenges that he raises are mostly points that could be translated into linguistic points. So, yeah, I would say the article by Cicchini would be such a challenge.
Interviewer: Would demonstrating the limited ability of a person to understand Miranda rights due to language differences or cognitive level be useful in a challenge?
Alan: Yes.
Interviewer: And what medical or occupational tests would you recommend to support an argument in this vein?
Alan: Well, I think I've already answered that. The interactive test, at the end of my version, tentatively, establishes that the individual understood it because he or she is being asked, in abbreviated form what he has been just offered when the interrogator says, "Now, say it all again to be sure you understand." One, you don't have to answer my questions or talk to me. What does that mean to you? If the person is simply unable to answer that, I would seriously question his or her ability to understand warning at all. If on the other hand, he or she can say, even just to repeat it, it means, I don't have to talk to you. I don't have to answer your questions. Even to be able to assimilate it in that form and recast it in that manner, signifies a degree of understanding. Then, if they can answer all three of them, what does that mean to you? You have a lawyer, what does that mean to you? We can take anything you say and use it against you, what does that mean to you? If those can be answered, in my opinion, that indicates a significant level of understanding.
Interviewer: Do you have a copy of any points and authority supporting the admissibility of the substantive content of the presentation that a copy which could be provided?
Alan: May I hear that again, please? A little bird.
Interviewer: Do you have a copy of any points and authority supporting the admissibility of the substantive content of the presentation?
Alan: Of my presentation?
Interviewer: Yes. Do you have any points and authority supporting the information?
Alan: Just indirectly, I mean, this is original work. In the indirect part comes from the sources that I cited, Rogers Shuy's observations about 10 unanswered questions about Miranda. I mean, I'm looking from a base of scholarly knowledge here. But what you're hearing is original analysis and formulation. I'm putting it out there for people to consider or possibly adopt, but at least I'm trying to address the difficulties in the original. And I reiterate, this really has to be done soon because it all too often results in the abrogation of rights that it's supposed to be guaranteed.
Interviewer: Has there been any research regarding different interpretations of the English language and the Miranda warnings as compared to Spanish or other language interpretations?
Alan: I'm sure it has. I would need some time to identify it, but very, very likely, yes. This has been an issue for a long time. So, my first answer would be, yes, and I could probably find it with a little research.
Interviewer: Even if it is possible to overcome the language or linguistic problems with the Miranda warnings, isn't it possible that the physical circumstances of where or how the warnings are given will override any correction to the language problems?
Alan: Yes, yes. I mentioned context, the social context of conversational space, the conditions under which the warning is delivered. All of these can override understanding, even if the warning is rewritten in the simplest possible terms. And then, again, that powerful fear of seeming uncooperative or obtuse, very powerful motivations.
Interviewer: Okay. So, those were all the questions. Alan, do you have any final thoughts or anything that you want to end with before we end the presentation? Wait, I have another question that came into.
Alan: Oh, okay. Would you like me to address this one? I'm seeing is coming from Mr. Hanowitz?
Interviewer: Yes.
Alan: Do you know that in Philadelphia most surrounding jurisdictions, the police ask a number of specific questions seeking to find out if the person understands the warning? I'm only aware of the questions that are in the standard version. I'm not aware of any other questions that the officer has to ask. But there are specific questions in the standard version too. So, they may be different ones, and they may not elicit understanding, or they may have to, I'd have to see.
Interviewer: Okay. Okay. Those were all the questions. I wanted to thank you, Alan, for your time today and putting together this presentation, educating us on the Miranda warning and the issues that it may cause. I just wanna let everyone know that I will be sending out the recorded presentation tomorrow morning via email, and your certificates will also be sent to you via email within a week. If you have any questions for Alan or you would like to speak with a TASA representative, feel free to reach out to me or give us a call at +1 800-523-2319, and one of my colleagues will be getting back to you. So, thank you again for joining in on the presentation, and this concludes our presentation for today.
Alan: Thank you all for attending, and I encourage you to contact me with any questions or comments. I've put my contact information on my first slide, which is now up there. And again, I thank you for your time and kind attention.