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Miranda: A "knowing and intelligent waiver"?

Back in 1992, William Garner found a purse outside a hospital.  He went to the purse-owner's house, used the keys in the purse to break in, stole numerous items, and then set fire to couch because he thought he might have left fingerprints on it.  There were six children in the house; five of them died in the fire.  Garner was arrested shortly thereafter, and made a full confession to the police.  He was tried, convicted, and sentenced to death.

Six weeks ago, the US 6th Circuit reversed the denial of habeas relief, holding that the state hadn't shown that Garner understood his Miranda rights sufficiently, so that his waiver of them could not be deemed knowing and intelligent.

Needless to say, the decision has provoked the usual sturm und drang, as this article indicates.  (As an aside, is it just me, or does it seem like half the newspaper articles anymore are written in the one-sentence-to-a-paragraph format?)  A closer reading of the decision, though, reveals it to be not nearly as revolutionary as it might appear at first glance.

The issue of the whether a defendant has validly waived of his Miranda rights isn't new; the Ohio Supreme Court tackled that question most recently just last year in State v. Lather.  The general requirement is that a waiver be "knowing, intelligent, and voluntary."  Voluntariness is generally determined in the context of police coercion, while whether the waiver was intelligent and knowing has to be gleaned from that old standby, "the totality of the circumstances."  The Court used that approach in Lather, rejecting a per se rule that would have required the police to ask the defendant whether he understood the rights.  They concluded that Lather did understand them, by virtue of the fact that he was 26, had a couple of semesters of community college, and, as he himself admitted, had acquired an understanding of his Miranda rights from previous brushes with the law. 

The facts in Garner were quite different; Garner was mentally retarded, had an IQ of 76, and submitted substantial expert testimony that he did not comprehend the rights that were given to him.  To be sure, as the Garner court noted, low IQ does not preclude a valid Miranda waiver; there are any number of decisions upholding confessions made by mentally challenged defendants.  There are a handful of decisions going the other way, though, too.

Given that, there's a temptation to believe there's some merit to the plaintive claims of prosecutors and police as to how they're supposed to determine whether an individual defendant's waiver is indeed knowing and intelligent.  The Garner court gives some credence to this, noting

We recognize that the Supreme Court's requirement that a Miranda waiver be made knowingly and intelligently may, on occasion, put the police in the difficult position of having to assess a suspect's understanding and intellectual capacities at the time of interrogation.

Still, a closer reading of Garner doesn't indicate that the decision is going to have an application much beyond a situation where (a) the defendant is mentally retarded, and (b) the defense brings in a boatload of witnesses to testify that the retardation made him incapable of understanding his Miranda rights.  Even expert testimony that the defendant is mentally retarded wouldn't have been sufficient; the opinion notes several cases where that was unsuccessfully presented, and distinguishes them from Garner's case.

And it may not even have any application at all; the state has requested an en banc reconsideration, and if that's granted, whether the decision survives is anyone's guess.

Still, if you've got a defendant with mental problems and a Miranda issue, Garner's the place to start, for the time being, at least.

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