Constitutional Protection of
Confessions Made by Mentally Retarded Defendants
Journal of Law & Medicine
14 Am. J. L. and Med. 431
||DONNA M. PRAISS
... The Court, however, has yet to decide definitively how a
person's mental state should affect the admissibility of his confession.
... A trained police officer, like a mental retardation
professional interviewer, is more apt to induce a confession. ... The
defendant in Patterson relied upon the "knowing and
intelligent" requirements of a valid waiver, instead of the
"voluntary" component as relied upon by the defendant in Connelly.
... For these reasons, it is unlikely that a police officer's recitation
of the standard Miranda warning will provide a mentally retarded
suspect with the requisite understanding of his rights and the
consequences of waiving them, nor will it enable the mentally retarded
person to make a voluntary decision to waive his rights. ... The Court
also held that Patterson's waiver of his sixth amendment right was made
"knowingly and intelligently" using formulations of valid
waivers espoused in Johnson v. Zerbst and Moran v. ... In
sum, Patterson presents the possibility of securing the sixth
amendment right to counsel depending upon a defendant's needs at an
earlier stage than that prescribed in Kirby. Furthermore, a
waiver of this constitutional right must be voluntary, knowing and
intelligent using a "totality of the circumstances" test that
factors in a defendant's particular susceptibilities to coercion and
Criminal confessions made in response to custodial questioning are
excluded from evidence unless a defendant voluntarily, knowingly and
intelligently waived his Miranda rights. In Connelly,
the Supreme Court erred by holding that, absent explicit police coercion,
a mentally ill individual's waiver is valid. The Court failed to consider
the defendant's subjective impairments that might invalidate his waiver.
By contrast, the Patterson Court suggested that a defendant's
right to counsel may attach at an early stage in a criminal proceeding if
the defendant has a significant need for counsel.
This Note addresses the special needs of a mentally retarded person in the
criminal justice system. The Note argues that mentally retarded suspects
require careful explanation of Miranda rights in order to
understand them. The intellectual and adaptive deficiencies which
characterize mental retardation also necessitate an
inquiry into a valid waiver that accounts for these disabilities.
Furthermore, the special needs of the mentally retarded mandate that the
right to counsel attach as early as the precustodial stage of an
investigation. Early access to counsel most effectively assures that a
mentally retarded person's waiver of constitutional rights is voluntary,
knowing and intelligent.
[*431] I. INTRODUCTION
In the twenty-two years following the United States Supreme Court's
decision in Miranda v. Arizona, n1 considerable judicial
attention has been lavished upon the admissibility of confessions in
criminal proceedings. The Court, however, has yet to decide definitively
how a person's mental state should affect the admissibility of his
confession. Furthermore, it is unclear how the distinction between mental
illness and mental retardation should factor into an
examination of an accused's mental state.
The admissibility of confessions has been adjudged on the basis of the
fourteenth, n2 fifth n3 and sixth n4 amendments. The fourteenth amendment
is relied upon when an accused is questioned by police in a noncustodial
[*432] situation. It is commonly referred to as the "due
process voluntariness doctrine" because it requires that a confession
made under these circumstances be voluntary. n5 Once an accused is taken
into police custody, he must be apprised of his fifth amendment rights
through the administration of Miranda warnings. n6 If an accused
chooses to forego his fifth amendment privileges to remain silent or to
consult with an attorney, then he is deemed to have "waived" his
rights. An accused can also depend on his sixth amendment right to
counsel, but only when this right becomes available to him. The point at
which the sixth amendment shield attaches to an accused is when the
adversary system begins to operate. n7 Fifth and sixth amendment
protections do not necessarily arise at the same time. The Court has
traditionally delayed attachment of the sixth amendment until the start of
formal judicial proceedings. n8
Judicial consideration of fifth and sixth amendment defenses always
invokes an inquiry into whether there was a "valid waiver" of
these constitutional rights. The test for a valid waiver is whether an
accused relinquished his constitutional rights "voluntarily,
knowingly and intelligently. n9
Mentally retarded persons are abnormally susceptible to coercion and
pressure and, consequently, are more likely to give a confession that is
not voluntary. n10 They are particularly susceptible to nonphysical [*433]
coercion which can assume very subtle forms. n11 For example, retardates
tend to fall for the appearance of friendliness designed to induce
confidence and cooperation. n12 In addition, they are likely to make a
false confession in an effort to please a person who is seen as an
authority figure. n13 Mentally retarded persons also tend to be incapable
of understanding their constitutional right not to confess, as well as the
consequences of a confession. n14 Aside from their difficulty
understanding the concepts behind the Miranda warnings, mentally
retarded suspects are unlikely to understand a standard recitation of the Miranda
warnings without further explanation. n15
These obstacles which may impede a mentally retarded person's ability to
understand fifth amendment rights also apply to the sixth amendment right
to counsel. In order to accommodate the unique characteristics of the
mentally retarded defendant, his mental capacity must be identified at the
time his confession is sought. n16 If his limitations are recognized only
after obtaining a confession, then the defendant will be placed in a
precarious position at trial. During that interval, his ability to
understand his rights may develop beyond his level of understanding at the
time the confession was made. For this reason, police personnel are urged
to gain special training to identify mental retardation
and its associated characteristics. n17 This strategy, however, might
cause a subtle form of coercion. A trained police officer, like a mental
retardation professional interviewer, n18 is more apt to induce a
confession. The defendant could be induced to make incriminating
statements which he might not otherwise make. In order to avoid an induced
confession, the defendant's counsel is best suited to provide the retarded
defendant with a sufficient understanding of his constitutional rights.
The Supreme Court recently addressed constitutional protections [*434]
of confessions in two significant cases. One case focused on the ability
of a mentally ill person to voluntarily confess and to make a valid waiver
of his constitutional rights. The decision trampled on fundamental fifth
and fourteenth amendment principles. The second case considered the
adequacy of Miranda warnings to convey sixth amendment rights.
The opinion confirmed the independent analysis of "knowing and
intelligent" constitutional waivers and suggested an expansion of
sixth amendment protection.
In 1986, the Supreme Court held in Colorado v. Connelly n19 that
absent police misconduct, an incriminating statement made by a mentally
ill defendant is "voluntary" and a waiver of his Miranda
rights is likewise voluntary. Connelly required a defendant who
confessed prior to being taken into police custody to show police
overreaching or misconduct as a prerequisite to finding that the
confession was obtained "involuntarily." n20 The Court extended
this prerequisite to custodial confessions by requiring police misconduct
before finding a Miranda waiver involuntary. n21 Until Connelly,
police overreaching was merely one factor in the "totality of all the
circumstances" n22 used to determine whether a confession was
voluntary n23 or whether a Miranda waiver was valid. n24 The Connelly
decision barred consideration of a person's mental state, at least with
respect to the voluntariness of both noncustodial and custodial
In Patterson v. Illinois, n25 decided two years after Connelly,
the Court considered whether Miranda warnings adequately informed
a defendant of his sixth amendment right to counsel. The Court answered
this question affirmatively with the proviso that the waiver of the right
to counsel be made voluntarily, knowingly and intelligently. n26 The
defendant in Patterson relied upon the "knowing and
intelligent" requirements [*435] of a valid waiver,
instead of the "voluntary" component as relied upon by the
defendant in Connelly.
In determining whether the waiver was made knowingly and intelligently,
the Patterson Court looked to sixth amendment n27 and fifth
amendment n28 cases before summing up the key inquiry in both cases:
"Was the accused . . . made sufficiently aware of his right to have
counsel present during the questioning, and of the possible consequences
of a decision to forgo the aid of counsel?" n29 Although the inquiry
into a valid waiver appears to be identical for fifth and sixth amendment
waivers, a waiver which might be valid under Miranda may,
nevertheless, be insufficient for sixth amendment purposes. n30 This is
not because the sixth amendment is more difficult to waive than the fifth
amendment, but, rather, because the sixth amendment right to counsel
extends beyond Miranda's protection of the fifth amendment right
to counsel. n31 The scope of the sixth amendment right to counsel is not
subject to the custodial/noncustodial distinction devised by Miranda.
Instead, it attaches at a "particular stage of the proceedings"
depending upon what purposes a lawyer can serve and what assistance he can
provide at that stage. n32 Thus, the Patterson decision requires
inquiry into the "knowing and intelligent" waiver component
which is not preempted by a finding that the waiver is voluntary, and
expands the scope of the sixth amendment right to counsel beyond the
constitutional protections under Miranda.
The Connelly Court's refusal to find a defendant's particular
susceptibility to coercion determinative of an involuntary confession,
absent police overreaching, effectively removed a potential mentally
retarded defendant's mental state from the voluntariness inquiry. Thus,
subtle forms of coercion, which may force a mentally retarded person to
confess, are no longer sufficient to find a confession involuntary under
the [*436] fifth and fourteenth amendments. The Patterson
decision indicates that a Miranda waiver which is not knowing and
intelligent is invalid regardless of whether it is voluntary. Thus,
evidence of a mentally retarded defendant's incapacity to understand and
appreciate the consequences of waiving constitutional rights can be
determinative of an invalid waiver absent police overreaching. If the
standard Miranda warnings are insufficient to provide a mentally
retarded suspect with the requisite understanding of his rights, then
additional precautions must be taken. In particular, a lawyer could
provide invaluable assistance to a mentally retarded defendant at the
investigatory stage in a criminal proceeding. The Patterson
opinion may be construed to allow a retardate's sixth amendment right to
counsel to attach at this stage.
This Note will first discuss the historical background of confession law
in the United States and the emergence of modern confession law from the
due process voluntariness standard to the evolution of the Miranda
doctrine and sixth amendment defenses. Second, it will analyze why the Connelly
rationale is wrong, why it should not apply to mentally retarded
defendants as it does to mentally ill defendants and why a separate
constitutional standard should be applied to mentally retarded defendants.
Last, this Note will examine the Patterson decision as making the
sixth amendment the strongest constitutional protection of confessions for
mentally retarded defendants.
II. HISTORICAL BACKGROUND
A. FOURTEENTH AMENDMENT -- DUE PROCESS VOLUNTARINESS
State confession cases were first reviewed by the Supreme Court under the
fundamental fairness requirement of the fourteenth amendment's due process
clause. n33 The first such case was Brown v. Mississippi n34
where the defendants' confessions resulted from physical beatings by
police. The defendants' convictions were overturned because the manner in
which the interrogation was conducted produced involuntary confessions and
violated notions of due process. n35
Since Brown, the Court has extended the list of factors evaluated
under a due process voluntariness test to include threats, n36 duration of
the interrogation n37 and police trickery. n38 The Court also looked to
[*437] subjective characteristics of the defendant in order to
weigh the circumstances of pressure against the power of resistance of the
person confessing. n39 Such characteristics, which are apt to allow a
person's "free will" to be "overborne" and cause him
to confess, include physical injury, n40 mental illness n41 or deficiency,
n42 education level, n43 age n44 and drugged state. n45 This latter group
of cases indicated the Court's willingness to examine factors other than
police brutality which might lead to an involuntary confession and to
consider the totality of the circumstances surrounding each case. n46
B. FIFTH AMENDMENT -- SELF -- INCRIMINATION
The Supreme Court first relied on the fifth amendment in deciding federal
confession cases in 1897. n47 The fifth amendment became applicable to the
several states in 1964. n48 Shortly thereafter, the Court responded to the
inconsistent way lower and state courts were deciding confession cases
under a vague totality of the circumstances test. n49 In Miranda v.
Arizona, n50 the Supreme Court established an objective standard for
police and courts to follow that protected a defendant's fifth amendment
rights during a custodial interrogation. n51 The standard required that
before a defendant can be interrogated in custody, he must be apprised of
his rights to remain silent, to have an attorney present during the
questioning, and that any statements made may be used as evidence against
him. The Miranda Court presumed that a confession obtained in a
custodial interrogation setting was involuntary unless Miranda
warnings were administered to the confessor. A defendant may waive his
rights, but only if he does so voluntarily, knowingly and intelligently.
n52 [*438] Miranda thus created a bright line
procedure for police to follow in a custodial situation. In a noncustodial
environment, however, the due process voluntariness standard still
governed. n53 The totality of the circumstances test was also necessary to
determine whether a waiver was voluntarily, knowingly and intelligently
The Miranda Court did not specifically address the question of
waiver. n55 The Court did not flesh-out an appropriate test for effective Miranda
waivers until Moran v. Burbine. n56 There it applied the waiver
standard first articulated in a sixth amendment case n57 to the Miranda
warning. Moran's two-part analysis of an effective waiver first
examined the voluntariness of a waiver and second, examined the requisite
understanding or awareness of the nature of the rights and of the
consequences of abandoning those rights. The terms
"understanding" and "awareness" refer to both
knowledge and intelligence as articulated by the Miranda Court.
First, the relinquishment of the right must have been voluntary in the
sense that it was the product of a free and deliberate choice rather than
intimidation, coercion or deception. Second, the waiver must have been
made with a full awareness both of the nature of the right being abandoned
and the consequences of the decision to abandon it. Only if the 'totality
of the circumstances surrounding the interrogation' reveals both an
uncoerced choice and the requisite level of comprehension may a court
properly conclude that the Miranda rights have been waived. n58
Thus, a valid Miranda waiver must be made voluntarily as well
as knowingly and intelligently. These elements of a valid waiver are
evaluated using a "totality of the circumstances" test.
C. SIXTH AMENDMENT -- RIGHT TO COUNSEL
In addition to the fifth and fourteenth amendment protections, [*439]
confessions can be excluded from evidence if an accused is deprived of the
right to counsel as guaranteed by the sixth amendment. n59 In Escobedo
v. Illinois, n60 the defendant's preindictment n61 confession was
made after he repeatedly requested that he be able to consult with his
lawyer for advice. The Court held "when its focus is on the accused
and its purpose is to elicit a confession -- our adversary system begins
to operate, and, under the circumstances here, the accused must be
permitted to consult with his lawyer." n62 Under Escobedo,
sixth amendment protection is sparked at that "stage when legal aid
and advice" are critical to the defendant. It is at this stage that
the Court required the accused to understand his rights: "[n]o system
worth preserving should have to fear that if an accused is
permitted to consult with a lawyer, he will become aware of, and exercise,
[his constitutional] rights. If the exercise of constitutional rights will
thwart the effectiveness of a system of law enforcement, then there is
something very wrong with that system." n63 In effect, the sixth
amendment right to counsel protects an accused from conviction due to his
own ignorance of his constitutional and legal rights.
In Kirby v. Illinois, n64 the Supreme Court criticized the Escobedo
decision for vindicating the fifth amendment privilege against
self-incrimination, and not the sixth amendment right to counsel. n65 The Kirby
Court announced that the sixth amendment right to counsel attaches at the
commencement of a criminal prosecution. n66 The Court described this
moment in five ways: 1) the initiation of judicial proceedings; 2) the
starting point of our adversary criminal justice system; 3) the point when
the government commits itself to prosecute; 4) the point when the
defendant finds himself immersed in the intricacies of substantive and
procedural criminal law; n67 and 5) any "critical stage of the
prosecution. n68 The Court reviewed previous instances when the sixth
amendment right to counsel attached n69 and concluded that identification
[*440] testimony based upon a police station line-up that took
place before the defendant had been indicted or otherwise formally charged
with any crime cannot be excluded under that constitutional provision. n70
The Moran Court recognized that a confession could make a
defendant's case at trial more difficult. n71 Absent overwhelming and
convincing extrinsic evidence, a confession probably will lead to a
conviction. Moran maintained, however, that the sixth amendment
right to counsel attaches only after formal charges are initiated. n72 The
result is that constitutional guarantees are faithfully guarded in the
courtroom but at the police station their significance is diminished. n73
III. PROBLEMS ENCOUNTERED BY MENTALLY RETARDED DEFENDANTS IN THE CRIMINAL
From a clinical perspective, a mentally retarded person is a normal person
with a limited learning capacity. The American Association on Mental
Deficiency (AAMD) defines mental retardation as
"significantly subaverage general intellectual functioning resulting
in or associated with impairments in adaptive behavior and manifested
during the development period." n74 General intellectual functioning
refers to the ability to learn and is usually measured by an intelligence
quotient (IQ). n75 Significantly sub-average intellectual functioning is
defined as [*441] an IQ of 70 or below with a measurement
error of approximately five points. n76
Adaptive functioning refers to a person's ability to live in our society
and is related to his ability to perform such tasks as social skills,
communication and daily living skills. n77 Adaptive functioning is also
quantified with the use of scales. n78 The degree of impairment in
adaptive functioning is correlated with the level of general intellectual
functioning, the presence of associated features and complications, and
educational and other environmental opportunities to ultimately diagnose mental
Mental retardation is categorically divided into four
degrees of severity which reflect the degree of intellectual impairment:
Mild, Moderate, Severe and Profound. n80 Mental retardation
may be caused by a variety of organic and inorganic factors. n81 There is
no cure for mental [*442] retardation,
rather, treatment is limited to habilitation. n82
The existing criminal justice system does not satisfactorily accomodate
the mentally retarded defendant. Several characteristics of mental
retardation impede voluntary, and knowing and intelligent
constitutional waivers by a mentally deficient suspect. For these
individuals, the station house is equally confusing to a retarded person
as is the courthouse and mandates special precautionary measures to
prevent injustice with respect to the mentally retarded.
From the police officer's perspective, the personality of a mentally
retarded person is characterized by a tendency to seek approval from
others, a desire to be accepted and a tendency to be easily persuaded. n83
In addition, they are quick to engage in conversation. n84 It is easy to
see that "persons with mental retardation are not a
major problem for police, but the police may be a major problem for
mentally retarded persons." n85
Although there is no correlation between mental retardation
and criminal behavior, a disproportionate number of mentally retarded
individuals have been incarcerated. n86 Although only two to three percent
of the general population is mentally retarded, n87 various studies
indicate that between ten and twenty-five percent of the national prison
population is mentally retarded. n88 This may be due to the fact that
retarded persons are easily caught and seldom paroled. n89 They are easily
caught because they will assume blame to please their accuser. n90 This
phenomenon, called "cheating to lose," leads to unfounded
confessions. n91 Moreover, retardates are often implicated and used by
their [*443] more sophisticated cohorts. n92
The medical profession has identified mental retardation
and has distinguished it from mental illness. The legal system, however,
has historically blurred these two conditions and has failed to recognize mental
retardation in defendants. Even in situations where a defendant's
mental deficiency is ascertained, the defendant's attorney may elect not
to disclose this handicap. n93 If the defendant were found incompetent to
stand trial, he would be admitted into a mental institution until he
became competent to stand trial. n94 A defense attorney or his client
would want to avoid this result because mental retardation
is a permanent condition from which a person cannot "recover."
Mentally retarded individuals' limited learning capacity does not
completely preclude their ability to understand the constitutional right
to remain silent or to obtain counsel. In order to reach this level of
comprehension, their rights must be slowly and carefully explained in
terms that they can grasp. n95 Adaptive impairments also cause mentally
retarded persons to become confused and dependent under stressful
conditions. n96 This exacerbating characteristic further inhibits retarded
persons from understanding new concepts and making independent decisions
under such conditions. For these reasons, it is unlikely that a police
officer's recitation of the standard Miranda warning will provide
a [*444] mentally retarded suspect with the requisite
understanding of his rights and the consequences of waiving them, nor will
it enable the mentally retarded person to make a voluntary decision to
waive his rights. Furthermore, even if police officers were specially
trained to identify and to provide mentally retarded persons with a
sufficient understanding of constitutional rights and the consequences of
abandoning those rights, this skill may backfire. Instead of creating a
favorable environment in which the retarded suspect can make a voluntary,
knowing and intelligent confession, the actual effect of the officer's
friendliness is to induce the retarded suspect to make an involuntary
IV. RECENT INTERPRETATIONS OF THE FOURTEENTH AND FIFTH AMENDMENT
The Supreme Court significantly altered its analysis of fourteenth and
fifth amendment challenges to admitted confessions when it recently
decided Colorado v. Connelly. The Connelly opinion
indicates the Court's unwillingness to examine a defendant's mental state
in lieu of a police overreaching prerequisite that is applied with
complete objectivity and uniformity. The ramification of this decision is
to discard the "totality of the circumstances" approach. The
decision effectively prevents a defendant's mental deficiency from
factoring into the analysis of a waiver's validity.
A. COLORADO v. CONNELLY
1. Facts of the Case
Without any prompting, Francis Connelly, approached a uniformed police
officer in downtown Denver and stated that he committed a murder and
wanted to discuss it. n98 The police officer informed Connelly that he had
the right to remain silent, that anything he said could be used as
evidence against him and that he had a right to an attorney prior to any
police questioning. Connelly assured the officer that he understood his
rights, but he wanted to talk about the murder anyway. n99 The officer
first inquired whether Connelly had been drinking or taking drugs. The
defendant denied this, but stated that he had been a patient in several
mental hospitals in the past. n100 Again, the police officer told Connelly
that he was not obliged to talk. The defendant replied that he wanted to
talk to the officer because his conscience was bothering him. The police
officer believed that Connelly [*445] fully understood the
nature of his acts. n101
A homicide detective arrived shortly thereafter and, after informing the
defendant of his rights, inquired about "what he had on his
mind." n102 Connelly told the detective that he had come from Boston
to confess to murdering a young girl whom he had killed in Denver a year
ago. n103 After returning to the police station with the defendant, the
detective learned that an unidentified female body was discovered
approximately six months after the date on which Connelly said he
committed a murder. n104 The defendant agreed to take the officers to the
murder site, n105 however, there was no corroborating evidence connecting
the body found with the young girl whom Connelly admitted killing. n106 At
no time did the detective perceive that Connelly was suffering from any
form of mental illness. n107
The defendant was held overnight. The next morning he became visibly
disoriented during an interview with a public defender and stated
"voices" told him to go to Denver and confess and that he was
following the instructions of these "voices." After a clinical
evaluation, the defendant was found incompetent to assist in his defense,
but following six months of treatment, he was found competent to proceed
to trial. n108 The defendant's counsel moved to suppress Connelly's
statements based on a psychiatric evaluation disclosing that the defendant
suffered from chronic schizophrenia n109 and was in a psychotic state at
least one day before his confessions. The psychiatrist testified that
Connelly was following the "voice of God," which instructed him
to go to Denver and confess to the killing or commit suicide. n110 The
psychiatrist [*446] explained that Connelly was experiencing
"command hallucinations" which interfered with his
"volitional abilities," or capacity to make free and rational
choices. n111 The expert witness further testified that Connelly's illness
did not significantly impair his cognitive abilities and that he fully
understood his rights as explained by the police officers. n112
The trial court and the Colorado Supreme Court held that Connelly's
statements should be suppressed because they were involuntary. They relied
on the "rational intellect and free will" standard established
in Culombe v. Connecticut and Townsend v. Sain. n113
That is, a confession must be made with a rational intellect and a free
will in order to be voluntary. With respect to Connelly's waiver of his
rights once in custody, the state courts decided that the defendant's
schizophrenia precluded his ability to make a valid waiver. n114
2. Supreme Court Holding
The United States Supreme Court granted certiorari and reversed. The
Court, speaking through Chief Justice Rehnquist, held that police coercion
was a necessary prerequisite for an involuntary confession and for an
involuntary waiver. n115
a. Precustodial Confessions -- Fourteenth Amendment Due Process
In Connelly, the Court refused to apply the principle, that a
confession is admissible only if it is a product of the defendant's
rational intellect and free will, to an individual suffering from chronic
schizophrenia. n116 The Court held that "absent police conduct
causally related to the confession" there is no violation of the due
process clause of the fourteenth amendment and the confession therefore is
voluntary. n117 In so holding, the Court disregarded the established
history of confession law which espoused the notion that a voluntary
confession must be made by the confessor of his own free volition
considering the totality of the circumstances surrounding the confession.
n118 The Court refused to make "sweeping inquiries into the state
[*447] of mind of a criminal defendant who has confessed"
without some coercive police overreaching. n119 Noting that a confession
from an individual in the defendant's condition might be quite unreliable,
the Court explained that "[t]he aim of the requirement of due process
is not to exclude presumptively false evidence, but to prevent fundamental
unfairness in the use of evidence, whether true or false." n120
b. Postcustodial Confessions -- Fifth Amendment Miranda Waiver
After concluding that a person suffering from chronic schizophrenia can
make a voluntary confession within the meaning of the due process clause,
the Connelly Court found a voluntary waiver upon the same
premise. Thus, challenges to assertions of due process voluntariness and
voluntary waivers must both be predicated upon some coercive police
activity. n121 The Court stated "the Fifth Amendment privilege is not
concerned with moral and psychological pressures to confess emanating from
sources other than official coercion.'" n122 It described the Miranda
decision as protecting defendants "against government coercion
leading them to surrender rights protected by the fifth amendment"
and found that the defendant's "perception of coercion flowing from
the 'voice of God,' however important or significant such a perception may
be in other disciplines, is a matter to which the United States
Constitution does not speak." n123
B. THE CONNELLY DECISION'S FLAWS
1. Fourteenth Amendment Due Process Voluntariness
Connelly is the first decision to require police overreaching as
a prerequisite to an involuntary confession. In at least two prior cases,
the Court suppressed confessions made in the absence of any police
wrongdoing. In Blackburn v. Alabama, n124 the Court found
inadmissible a confession made by a man suffering from paranoid
schizophrenia, who was "most probably . . . insane" at the time
that he confessed. n125 In the opinion, no mention was made of any police
coercion that might have influenced the Court's decision. In Townsend
v. Sain, n126 the Court rejected [*448] confession made
under the influence of a truth serum type drug even though the
interrogating police officers were unaware of the drug's presence. n127
In addition, the Connelly opinion noticeably avoids discussing
fundamental fairness principles underlying due process. Fundamental
fairness refers to the duty to protect "anyone whose life or liberty
is in jeopardy." n128 In Blackburn, the Court recognized
this duty to the mentally ill.
Surely in the present stage of our civilization a most basic sense of
justice is affronted by the spectacle of incarcerating a human being upon
the basis of a statement he made while insane; and this judgement can
without difficulty be articulated in terms of the unreliability of the
confession, the lack of rational choice of the accused, or simply a strong
conviction that our system of law enforcement should not operate so as to
take advantage of a person in this fashion. n129
The Blackburn Court adopted the view that insanity or mental
illness alone justifies excluding a confession, made while insane, on the
basis of justice. Without mention of justice, the Connelly Court
found insanity an insufficient ground for excluding a confession. n130
2. Fifth Amendment Miranda Waiver
The Miranda decision required that a valid waiver be made
voluntarily, knowingly and intelligently. n131 These three requirements
were recently examined in Moran v. Burbine. n132 A valid waiver
was described as having two stages. First, the waiver must be voluntary
such that it is the product of a "free and deliberate choice."
Second, it must be made with a full awareness of the nature of the Miranda
rights and the consequences of abandoning those rights. In determining
whether these two stages have been satisfied, the totality of the
circumstances surrounding the interrogation must be evaluated. n133
It is unclear whether the Connelly Court required police
overreaching as a prerequisite to finding an invalid waiver or simply as a
prerequisite to finding an involuntary waiver. If the Court meant to limit
the [*449] application of its decision to the voluntariness
stage of a waiver, then lower and state courts are free to find a Miranda
waiver invalid on the basis of the second stage, knowing and intelligent,
absent police overreaching. There is support for this conclusion within
the Connelly opinion. n134 In addition, at least one subsequent
Supreme Court waiver decision considered whether a waiver was invalid on
the basis of the second stage without requiring police overreaching as a
prerequisite, n135 and at least one lower federal court followed Justice
Brennan's advice in his dissent to avert the result in Connelly
by considering this second stage separately. n136
The Connelly opinion also supports the proposition that police
overreaching is a prerequisite for finding any Miranda waiver
invalid. n137 If this was indeed the goal of the decision, the decision is
flawed because it failed to recognize the importance of the second prong
of an effective waiver -- the ability of the accused to understand his
constitutional rights. The decision improperly focused on police activity
to the exclusion of the accused's particular susceptibilities. This
approach to finding a valid waiver contrasts sharply with previous
decisions which recognized that a person cannot waive his constitutional
rights without first knowing that these fundamental constitutional rights
exist. In Johnson v. Zerbst, n138 the Court defined a waiver as
being "an intentional relinquishment . . . of a known right . . .
" n139 Whether a waiver was made intelligently depended "upon
the particular facts and circumstances surrounding that case, including
the background, experience, and conduct of the accused." n140
Furthermore, the Miranda Court saw police inactivity as
a source of compulsion. In Miranda, a presumption [*450]
of an invalid waiver could be dispelled when a police officer administered
Miranda warnings, advising the suspect of his right to remain
silent and his right to have counsel present. n141 Thus, failure to
administer these warnings automatically resulted in a compelled confession
where the interrogation was in a custodial setting.
Administering warnings does not end the inquiry into what constitutes a
valid waiver. A suspect must also be made aware of his rights and the
consequences of a waiver through warnings which are in clear and
unequivocal terms. n142 If the defendant is not adequately made aware of
his rights and the consequences of abandoning those rights, the waiver of
those rights must be found invalid. The decision to waive one's
constitutional rights must be made solely by the accused. In order to make
this decision, the accused must, at a minimum, be aware of those
constitutional rights. n143 In addition, an intelligent decision to waive
one's rights necessitates an awareness of the consequences which will flow
from that decision. n144 These characteristics of a valid waiver are not
satisfied by a mere finding of no police overreaching.
In the Connelly opinion, Chief Justice Rehnquist quoted passages
from Moran out of context in order to support his conclusion that
police coercion is a necessary prerequisite for finding a waiver invalid.
n145 The Chief Justice omitted intermediary sentences pertaining to the
second stage of a waiver. n146 In its complete form, the passage described
[*451] both stages, and then explained how each stage was
satisfied. n147 The gist of the adulterated passage was that a valid
waiver must be voluntary, and because there was no police coercion in Moran,
the waiver was valid. This set the stage for his successful attack on the Miranda
doctrine, limiting the inquiry into a voluntary, knowing and intelligent
waiver with a superceding police coercion requirement.
C. CONNELLY SHOULD NOT ADVERSELY AFFECT THE MENTALLY RETARDED
The fundamental difference between mental retardation and
mental illness is that mental retardation is not a
disease. n148 Mental retardation involves a permanent
mental impairment whereas mental illness is often temporary, cyclical or
episodic. n149 Mental retardation is a learning
deficiency while mental illness is a thinking disorder. n150 The onset of
a mental illness is usually indicated by the presence of irrationality,
paranoia and delusions. n151 Schizophrenia, the illness suffered by the
defendant in Connelly, is a common thought disorder or mental
illness. n152 The characteristics of mental illness are not indicators of mental
In as much as mental illness is a temporal infliction and mental
retardation is a permanent developmental disability, a whole
class of Americans exists and is recognized on the basis of its mental
retardation. One reaction to Connelly is whether law
enforcement officers can recognize mental retardation
and, if so, does police interrogation of a mentally retarded person
constitute police overreaching for purposes of satisfying the Connelly
prerequisite. The police officer in Connelly "perceived no
indication whatsoever that [the defendant] was suffering from any kind of
mental illness." n154 By noting this fact more than once in its
recitation of the facts, the Court suggested that had the officer known or
if he should have known of the defendant's mental state, the [*452]
requisite police activity would be satisfied. n155 Mr. Connelly informed
the police officer that he had been a patient in several mental hospitals
in the past; this alone, however, did not necessitate the conclusion that
the defendant was suffering from some form of mental illness at that
Although a mentally retarded individual will try to hide his disabilities,
he can be identified by discerning his schooling, and observing his
vocabulary, literacy, confusion and signature. n156 Several police
departments provide training for their personnel in this specific area.
[*453] The result in Connelly should be limited to
instances where the defendant is mentally ill because it is more difficult
for a police officer to recognize mental illness in a defendant. n158 In
prior cases, the Court recognized that a person's impaired mental
condition was sufficient to suppress that person's confession. The Connelly
Court distinguished cases such as Blackburn v. Alabama and Townsend
v. Sain, n159 however, on the basis of police exploitation of the
defendant's deficient mental condition. Exploiting a mentally retarded
person's deficiency would naturally refer to some lack of cognitive
A mentally retarded suspect may be exploited so subtly that the police
conduct responsible for the resulting confession will appear perfectly
acceptable. For example, a friendly, compassionate questioner will likely
elicit confessions from a mentally retarded person. n160 The reliability
of these confessions is greatly reduced because of a mentally retarded
person's predisposition to please the questioner. This predisposition
causes a retardate to provide an answer that the questioner is perceived
to desire. n161 Mentally retarded individuals tend to be concrete thinkers
who have difficulty generalizing. They are trained to be truthful which
makes them too agreeable and prone to give the same pattern of responses.
The large disparity in intelligence between a police officer and a
retarded suspect intensifies the coercive pressure of the officer. This
coercion might be dispelled if a police officer patiently explained the Miranda
rights to a mentally deficient defendant in terms so basic that he might
gain the requisite understanding of those rights and the consequences of
abandoning those rights. An intelligent police officer will inherently
exploit a minimally intelligent individual unless that individual [*454]
actually understands the enumerated rights. n163
Miranda pointed out that coercion can be mental as well as
physical. n164 Given that "mental condition is surely relevant to an
individual's susceptibility to police coercion," n165 some lesser
form of police activity would be sufficiently coercive with respect to a
mentally retarded person although insufficient with respect to an average
person. The Miranda Court suggested that an inquiry into a
defendant's state of mind is appropriate in some instances. The Connelly
Court, however, refused to make "sweeping inquiries" into a
defendant's mental condition. There are several tests available, that do
not require "sweeping inquiries," for police to discern mental
retardation on the street. Recognizing mental retardation
is a part of a police officer's training. Thus, once a defendant's mental
retardation is known to a police officer, Connelly's
police coercion prerequisite is satisfied.
In the case of a mentally retarded defendant, the constitutional concerns
which the Miranda Court attempted to protect via prophylactic
warnings would be better served by placing the burden on the suspect's
lawyer to provide an explanation of his rights instead of on the police
officer. n166 The Fifth Circuit recognized that questioning persons with
limited intellectual functioning exposes them to overreaching. n167 That
court advised taking extra precautions and providing the aid of counsel to
ensure that a knowing waiver is made. n168
Eliminating a defendant's mental condition from the valid waiver inquiry
deprives mentally deficient persons of adequate safeguards for their
constitutional rights. With respect to custodial interrogations, the Miranda
Court recognized that "inherently compelling" pressures operate
to undermine a person's free will. This may be especially true when the
defendant is mentally retarded because his will to resist coercion may be
significantly inferior to an average person. n169
[*455] The Connelly Court's failure to consider the
"knowing and intelligent" components of a valid waiver was
probably an inconsequential oversight in that particular case. The
defendant in Connelly had a full understanding of his Miranda
rights. Expert testimony explicitly revealed that the defendant's
condition did not prevent him from understanding his rights. n170 Indeed,
the defendant's counsel relied on the due process voluntariness standard
and the volitional, as opposed to the cognitive, component of a valid
waiver. This oversight has substantial consequences in the case of
mentally retarded defendants because they do not have the cognitive
abilities that mentally ill persons have. n171 This distinction is most
significant in the context of a Miranda waiver that must be made
knowingly and intelligently. The early onset of mental retardation
corresponds to limited cognitive development. n172 Mental illnesses,
particularly schizophrenia, usually manifest at a time when an individual
has had an opportunity to develop his cognition. n173 In addition, chronic
mental illnesses appear and disappear, and have a possibility of recovery,
whereas mental retardation cannot be overcome. Thus, a
person suffering from a mental illness has a capacity to understand like a
normal person, whereas a mentally retarded person does not.
In Brown v. Mississippi n174 it was the brutal physical torture
of a suspect which was "revolting to the sense of justice." n175
Preying on a mentally retarded person is no less offensive to our system
of justice. The difference is that in the latter case there are no bruises
or other physical marks. The deep-rooted prejudice against and the
misunderstanding of the mentally retarded n176 somehow makes it easier to
deny this group a sense of dignity and integrity.
[*456] D. A SEPARATE CONSTITUTIONAL STANDARD SHOULD APPLY TO
THE MENTALLY RETARDED DEFENDANT
Recently, in Ford v. Wainwright, n177 the Supreme Court
recognized that a separate constitutional standard exists for the mentally
ill when it exempted the insane from capital punishment. n178 In Ford,
the defendant suffered from "paranoid schizophrenia" and was
unable to understand the nature of the death penalty
before him and the reasons for its imposition upon him. n179 The Court
found that the eighth amendment's ban on cruel and unusual punishment
prohibits states from sentencing insane prisoners to death. n180 It
reasoned that the eighth amendment embraces those acts of punishment which
were considered cruel and unusual when the Bill of Rights was adopted. The
Court found no authority condoning the execution of the insane at common
law. The Court did not confine the scope of the eighth amendment to its
historical context because that constitutional protection recognizes the
"evolving standards of decency that mark the progress of a maturing
society." n181 In addition, the Court found national support for the
proposition that the execution of the insane offends humanity. The Court
justified its decision as furthering eighth amendment goals to
"protect the condemned from fear and pain without comfort of
understanding" and to "protect the dignity of society itself
from the barbarity of exacting mindless vengeance . . . . " n182
The clinical use of the word "insane" refers to persons
suffering from a mental illness. n183 The judicial use of the term
"insanity" has been overinclusive in that it has historically
blurred the distinction between mental illness and mental
retardation. Thus, use of the word "insane" to describe
a mental condition at the time of execution is ambiguous. In a concurring
opinion, Justice Powell suggested an insanity definition within this
context which "forbids the execution only of those who are unaware of
the punishment they are about to suffer and why they are to suffer
Following the Court's decision in Ford, the American Bar
Association composed standards which specifically exempted from execution
[*457] both the mentally retarded and the mentally ill and
which referred to the ability to understand the proceedings and the
ability to assist counsel. n185
The Ford Court found a constitutional basis for differential
treatment on the basis of mental state. n186 Affording similar treatment
to mentally retarded individuals through the fifth amendment would serve
its general goals to deter police from exploiting the mentally retarded
and to assure trustworthy evidence. n187 Standard Miranda
warnings read by police officers are an ineffective means of explaining
fifth and sixth amendment rights to a mentally retarded suspect.
Supplemental precautionary instructions are necessary for those lacking
the cognitive ability to waive their constitutional rights. n188 The
responsibility of supplying such adequate warnings to a mentally deficient
suspect should be placed on the suspect's counsel.
V. RECENT INTERPRETATION OF SIXTH AMENDMENT PROTECTION
A. PATTERSON V. ILLINOIS
In Patterson v. Illinois, n189 the United States Supreme Court
confirmed that the prosecution must prove a voluntary, knowing and
intelligent waiver of a constitutional right and not merely the absence of
police overreaching. The Patterson Court also suggested that the
sixth amendment right to counsel attaches when the defendant most needs
counsel. If the particular susceptibilities of the mentally retarded
require expanding the scope of the sixth amendment right to counsel beyond
the initiation of formal judicial proceedings, then the sixth amendment
may be an effective constitutional safeguard for the preindicted mentally
1. Facts and Holding
On August 21, 1983, the defendant and other members of the "Vice
Lords" street gang engaged in a fight with another gang called the
"Black Mobsters." After the fight, Jackson, a member of the
Black Mobsters met the Vice Lords and another fight ensued. The defendant
and three Vice Lords fatally beat Jackson and left him face down in a
[*458] puddle where his body was found the next morning. n190
A fellow Vice Lord implicated Patterson in the Jackson murder and
Patterson was taken into police custody. After being informed of his Miranda
rights, the defendant volunteered to answer questions. Although he
admitted involvement in the first gang fight, he denied knowing anything
about Jackson's death. n191 After his indictment, the defendant asked a
police officer for the names of those Vice Lords who were charged with
Jackson's murder. Upon learning that a particular Vice Lord was not among
those charged, the defendant asked: "[W]hy wasn't he indicted, he did
everything?" n192 After implicating himself in the murder, the
defendant was given a Miranda waiver form to sign which was read
aloud to him. Patterson signed the form and proceeded to describe in
detail the role of each Vice Lord involved in Jackson's murder. n193 The
defendant confessed to the murder a second time after he was again given a
Miranda warning. n194
At trial, the defendant's motions to suppress his statements were denied
and he was found guilty. n195 On appeal Patterson argued that because his
sixth amendment right attached upon his indictment, police should be
barred from questioning him from that moment. n196 The defendant also
argued that his waiver of his sixth amendment right to counsel was not
"knowingly and intelligently" made. n197 He asserted that
although the Miranda warnings adequately apprised him of his
fifth amendment rights, they did not adequately inform him of his sixth
amendment right to counsel. n198 Patterson also claimed that the sixth
amendment right to counsel is superior to the fifth amendment right to
counsel, and as such, should be more difficult to waive. n199 The Illinois
Supreme Court rejected all of these contentions. n200
The United States Supreme Court, speaking through Justice White, affirmed
the state court's decision. It held that a defendant must first assert his
right to counsel before police are barred from questioning the defendant.
n201 The Court also held that Patterson's waiver of his sixth amendment
right was made "knowingly and intelligently" using formulations
of valid waivers espoused in Johnson v. Zerbst and Moran v.
[*459] Burbine. n202 In addition, the Court stated that
the scope of the sixth amendment and the procedures required to waive that
right depend upon the particular stage of the proceedings in question and
the assistance that a lawyer could provide at that stage. n203 Thus, the Patterson
Court's explanation of the scope of the sixth amendment provides greater
flexibility than the Kirby formulation which permits counsel
after the initiation of judicial proceedings. It suggests that a
defendant's subjective need for counsel at a particular stage may require
attachment of his sixth amendment right at that stage.
2. Sixth Amendment Waiver Standard Explained
Before evaluating Patterson's waiver, the Court reviewed controlling
precedent in this area. Regardless of whether the sixth or the fifth
amendment is being waived, the inquiry in both situations is the same.
First, the waiver must be uncoerced or voluntary. n204 Second, the accused
must be aware of his constitutional right to remain silent, to retained or
appointed counsel and the possible consequences of relinquishing those
rights. n205 The notions of "knowingly and intelligently" are
encompassed in this second requirement. Specifically, a waiver has been
made knowingly and intelligently where the defendant knew at all times
that he could remain mute and request a lawyer, and that he was aware that
the state intended to use his statements against him. n206
The Supreme Court began its evaluation of Patterson's waiver by first
noting that the issue of "voluntariness" was not before the
Court. n207 The state courts found the defendant's confession uncoerced
and the defendant did not appeal the issue. n208 Recognizing that the
uncoercive or voluntary nature of a waiver was not sufficient to find that
waiver valid, the Court commenced its examination of Patterson's
understanding of his right to counsel and its consequences.
Patterson was told that he had a right to consult with an attorney, that
he could have an attorney present during questioning and that an attorney
could be provided for him if he could not afford to retain one. n209 The
Court found that there was little else that Patterson could have been told
that would have made him aware of his right to counsel. [*460]
n210 The defendant did not suggest what other information he needed in
order to be made aware of his rights. n211
With respect to informing the defendant of the consequences of his waiver,
the Court determined that Patterson understood that any statement he made
could be used as evidence against him at trial. n212 This is the
"ultimate adverse consequence" that the defendant would suffer
if he were to forgo his rights. n213 Furthermore, the Court found that
Patterson was also aware of what a lawyer could "do for him"
during questioning; namely, the lawyer could have advised him to remain
silent about the cause for his detention. n214 The Court inferred this
understanding from the fact that the defendant knew what the state
intended to do with his statements, Thus, he knew the consequences of
going without a lawyer. n215
The Patterson Court appeared to incorporate the Moran
opinion with respect to evaluating a constitutional waiver. Moran
advocated a subjective evaluation of each defendant's understanding of his
rights before finding a valid waiver. Before concluding its discussion on
waivers with a final quote from Moran, however, the Patterson
Court hesitated to adopt a subjective waiver standard. n216 It stated that
"as a general matter," Miranda warnings sufficiently
convey the nature of sixth amendment rights and the consequences of
abandoning those rights such that a defendant can waive his rights
knowingly and intelligently. n217 In stating its conclusion "as a
general matter," instead of limiting it to the particular
characteristics of the defendant, the Court either intends to apply its
holding across the board to all defendants regardless of mental
abnormalities, or in a majority of confession cases where the defendants
are not particularly susceptible to coercion. The latter is the only
acceptable explanation in light of the Court's reliance on Moran.
This conclusion is supported by the fact that the Court asked the
defendant to suggest additional information that should have been afforded
him to make a waiver with an appreciation of his rights and the
consequences of waiving them. Thus, it would seem that a defendant may
command an alternative Miranda warning if he can show that he
particularly required additional information before making a knowing and
[*461] 3. Scope of the Sixth Amendment Right to Counsel
In Patterson, the defendant requested that the Court accept the
following syllogism: the sixth amendment right to counsel is greater than
the fifth amendment right to counsel; a preindictment suspect may assert a
fifth amendment right to counsel; n218 police cannot question a suspect
until he initiates further conversation; therefore a postindictment
suspect's sixth amendment right should bar police from questioning him
until he initiates the conversation. n219 The Court refused to adopt such
a rule for several reasons. First, neither the fifth nor the sixth
amendment is superior to the other. n220 Second, the sixth amendment right
to counsel does not arise at any one particular point in the proceedings.
n221 Third, police are barred from questioning a suspect only after the
suspect asserts his constitutional right to remain silent or to consult an
The first and third reasons supplied by the Court are self-evident. n223
The second, however, is a curiosity. It raises the issue of when a
suspect's sixth amendment right to counsel first attaches. The point at
which this right attaches is important because at that stage the suspect
can waive the right to counsel only after he possesses the requisite
comprehension of that right. n224
The point at which the sixth amendment right to counsel arises is when the
accused "require[s] aid in coping with legal problems or assistance
in meeting his adversary." n225 This determination depends on the
purposes that a lawyer could serve and what assistance he could provide to
the accused at that stage. n226 In light of Kirby and Moran,
it is probable that by "stage" the Court meant at or after a
formal charge, a preliminary hearing, an indictment, information or an
arraignment. At the opposite extreme, the Court may have meant to refer to
any stage during the criminal proceedings depending upon the particular
needs and susceptibilities of the defendant. The Miranda Court
held that the adversarial system of criminal proceedings commenced when an
accused [*462] was interrogated in police custody. n227
Combining this language in Miranda with the Patterson
Court's rationale for the moment the sixth amendment attaches, an
individual may require aid of counsel at or after custodial interrogation.
B. PATTERSON STRENGTHENED THE PROTECTION OF THE SIXTH AMENDMENT
FOR MENTALLY RETARDED DEFENDANTS
The Patterson decision is a possible beacon for mentally retarded
defendants for several reasons. First, it reaffirms Moran by
requiring an inquiry into an accused's understanding of his rights and the
consequences of abandoning those rights. It indicates that finding an
uncoerced and voluntary confession does not end the inquiry into a valid
fifth amendment or sixth amendment waiver as the Connelly Court
supposed. n228 The return to a totality of the circumstances approach is
especially significant to waivers made by mentally retarded suspects. n229
Namely, it requires a court to examine whether the defendant understood
what his rights were prior to interrogation. For a mentally retarded
suspect, the requisite comprehension of these rights may require the
attending police officer to break down the Miranda rights into
simpler terms. For example, the following words -- "right,"
"silent," "counsel," "lawyer,"
"statements," "relinquish," "abandon,"
"appoint," "retain" and the phrases "used as
evidence against you" and "in a court of law" -- may be
confusing to a mentally retarded suspect. With patience, a police officer
might be able to convey these abstract concepts that are an important part
of our constitutional law. In the case of a mentally retarded suspect,
however, this is the point at which the assistance of counsel is critical
in helping the individual to cope with legal problems.
It is preferable to place the burden of carefully explaining
constitutional rights to a mentally retarded suspect on that person's
counsel. Otherwise, it is difficult to determine whether police officers
took appropriate precautions and carefully explained the Miranda
warnings to mentally retarded defendants. In Smith v. Kemp, the
court found that the police did not provide the defendant with a
sufficient understanding of his constitutional rights based on the length
of time that was spent in explaining these rights to the defendant. n230
Length of time is an inappropriate measure of comprehension since this
period may vary significantly among mentally retarded suspects. Likewise,
the fact that the retarded defendant appeared to understand his rights is
also insufficient [*463] evidence of comprehension. n231
The above proposition does not preclude a mentally retarded defendant from
making a valid waiver of his constitutional rights. It recognizes that all
individuals can waive these rights, but only if the waiver is voluntary,
knowing and intelligent. Providing counsel to explain these rights to a
mentally retarded suspect insures a valid waiver. The right to counsel
should attach at an earlier stage for a mentally retarded defendant than
for a normal defendant because a mentally retarded defendant is more
likely to be confused about legal concepts and the words used to describe
them at an earlier stage. The fact that the sixth amendment right to
counsel does not attach at some rigidly fixed stage indicates that the
sixth amendment may provide mentally retarded defendants with the adequate
safeguards that the Miranda Court overlooked when it required Miranda
warnings strictly in a custodial setting. In the context of a
"normal" defendant, the Patterson Court would require a
more searching inquiry into a waiver of a right to counsel at trial than
when the waiver occurs during postindictment questioning because the
dangers are less substantial and more obvious to the accused. n232 A
retarded defendant's ignorance of his constitutional rights during
questioning might be just as dangerous and nonobvious as a normal
defendant's ignorance of courtroom procedure. Thus, a more searching
inquiry should be required for waivers made by mentally retarded persons.
Furthermore, when the right to counsel arises, questioning a mentally
retarded defendant should cease until counsel is provided. Counsel may be
required to assist the defendant in asserting his rights. Although this
suggestion does not satisfy the Edwards n233 requirement that a
defendant assert his rights before counsel is provided, it is a reasonable
safeguard in this situation because mentally retarded persons are
"often unable to adequately articulate their needs or insist that
their rights be protected . . . ." n234 Whether by the police or by
the courts, "special efforts" n235 must be made to safeguard the
constitutional rights of the mentally retarded. n236
In sum, Patterson presents the possibility of securing the sixth
amendment right to counsel depending upon a defendant's needs at an [*464]
earlier stage than that prescribed in Kirby. Furthermore, a
waiver of this constitutional right must be voluntary, knowing and
intelligent using a "totality of the circumstances" test that
factors in a defendant's particular susceptibilities to coercion and
pressure. For mentally retarded defendants who find the criminal justice
system perplexing at an early stage, the right to counsel should attach at
that stage and the defendants' limited cognitive abilities should factor
into the valid waiver analysis.
The Miranda Court established an objective procedure for police
to use in custodial interrogations to dispel the presumption of a coerced
confession. This procedure left the determination of a voluntary, knowing
and intelligent waiver to the courts. Judicial review was required because
a valid waiver could not be reasonably inferred from ineffective warnings
which failed to provide the defendant with an understanding of his rights
and an awareness of the consequences of foregoing them. Under the totality
of the circumstances approach, factors surrounding the interrogation which
operate to impede a suspect's free will to resist pressures or cloud his
understanding of his rights enter into an examination of a valid waiver.
Where an accused is susceptible to pressures both in a custodial and
noncustodial environment, as in the case of mentally retarded citizens, it
should be obvious that the procedures articulated in Miranda must
be upgraded to satisfy the spirit of Miranda and sixth amendment
guarantees and to prevent police exploitation of a mentally disabled
The Connelly Court attempted to create an objective test for
courts to follow in determining when a statement is coerced within the
context of the due process voluntariness standard and a fifth amendment
waiver. It sought to replace the totality of the circumstances standard
with a single factor -- whether there was police overreaching. This
approach eliminated from examination a defendant's susceptibility to
coercive pressure. Although this approach may deter overt police
misconduct, it does not guard against untrustworthy confessions or police
omissions which result in inadequate fifth amendment protection. By
disregarding a person's mental retardation, a police
officer necessarily exploits that individual's disabilities. This occurs
when the defendant is not aware of his rights and the officer informs the
person of his rights in an ineffective way. This conduct may qualify as
police over-reaching for the purposes of satisfying the Connelly
The Connelly Court's prerequisite effectively erased the knowing
and intelligent components of a valid waiver. This second stage of a valid
waiver is of primary importance to a mentally retarded defendant [*465]
because it takes into consideration the defendant's cognitive ability. By
definition, mental retardation is a permanent condition
of impaired cognition. This characteristic does not pertain to mentally
ill persons. The defendant in Connelly suffered from a mental
illness which possibly affected his volition, but left his cognitive
abilities intact. Thus, Connelly can be limited to its facts.
Fortunately, Patterson restored the totality of the circumstances
standard and reinstituted the two dimensional formulation of a valid
waiver by removing the police coercion prerequisite created by the Connelly
In order to avoid fundamental unfairness in the use of confessions,
waivers by mentally retarded individuals must be made knowingly and
intelligently. Additional precautionary instructions to the traditional Miranda
warnings are necessary for mentally retarded defendants to understand
their constitutional rights to remain silent and to have an attorney
present. The warnings provided to a mentally retarded individual must make
the consequences of a waiver clear. Clarity of the warnings is a
prerequisite to understanding the rights bestowed by the fifth and sixth
amendments. Without these safeguards, a police officer will be exploiting
the mentally retarded person's permanent handicap. These additional
warnings must compensate for the tendency of mentally disabled persons to
tell police what they perceive the police want to hear.
Before such special warnings can be administered to retarded individuals,
the police officer must necessarily identify the person's disability.
Special training for police officers accustoms them to look for signs of
mental disability. With proper training, most cases of retardation will be
recognizable. Courts must ascertain whether these individuals have the
requisite understanding of the concepts behind the fifth amendment to make
a valid waiver.
Courts could avoid inquiries into a mentally retarded defendant's state of
mind by attaching the sixth amendment right to counsel upon questioning. Patterson
revealed that the sixth amendment right to counsel arises at a particular
stage depending upon what purposes a lawyer can serve at that stage and
what assistance he can provide the accused. Mentally retarded suspects
should be provided counsel at an early stage to ensure that they are
provided the requisite understanding of their constitutional rights to
remain silent and to retained or appointed counsel before their rights can
be waived. Without effective safeguards for their constitutional rights,
mentally retarded citizens will remain vulnerable to misunderstood notions
n1 384 U.S. 436 (1966) (holding that when a suspect is taken into police
custody, he must be informed of his fifth amendment right to remain silent
and to have either retained or appointed counsel before an admissible
confession can arise from police interrogation).
n2 The fourteenth amendment provides that "[n]o State shall . . .
deprive any person of life, liberty, or property, without due process of
law . . . ." U.S. CONST. amend. XIV, § 1.
n3 The fifth amendment provides that "[n]o person . . . shall be
compelled in any criminal case to be a witness against himself nor be
deprived of life, liberty, or property, without due process of law . . .
." U.S. CONST. amend. V.
n4 The sixth amendment provides that "[i]n all criminal prosecutions,
the accused shall . . . have the Assistance of Counsel for his
defence." U.S. CONST. amend. VI.
n5 See Miranda, 384 U.S. at 478.
n6 Miranda, 384 U.S. at 445. Application of the fifth amendment
rests on finding a custodial interrogation. A person is considered
"in custody" when he is "deprived of his freedom of action
in any significant way." Id. A Miranda waiver
refers to inculpatory statements made by an accused after the accused has
been informed of his right to remain silent, that anything he says could
be used against him, that he has a right to consult with an attorney, that
he has a right to have an attorney present during interrogation, and that
the state would provide him with a lawyer for interrogation if he were
indigent and so desired. The Miranda warning, as the above notice
commonly is called, only is required if a person is taken into custody and
n7 "[W]hen the process shifts from investigatory to accusatory --
when its focus is on the accused and its purpose is to elicit a confession
-- our adversary system begins to operate, and . . . the accused must be
permitted to consult with his lawyer." Escobedo v. Illinois, 378 U.S.
478, 492 (1964); but see Kirby v. Illinois, 406 U.S. 682 (1972).
The sixth amendment right to counsel attaches only at or after a judicial
proceeding such as a formal charge, a preliminary hearing, an indictment,
information, or an arraignment has been initiated against the defendant. Kirby,
406 U.S. at 690.
n8 See Moran v. Burbine, 475 U.S. 412 (1986); Kirby v. Illinois,
406 U.S. 682 (1972).
n9 Miranda, 384 U.S. at 444. The test announced in Miranda,
a fifth amendment case, is essentially the same as the test espoused in Johnson
v. Zerbst, a sixth amendment case. In Johnson, a waiver was
defined as "an intentional relinquishment or abandonment of a known
right or privilege." Johnson, 304 U.S. 458, 464 (1938).
n10 Ellis & Luckasson, Mentally Retarded Criminal Defendants,
53 GEO. WASH, L. REV. 414, 446 (1985); see Jurek v. Estelle, 623
F.2d 929, 938 (5th Cir. 1980)(en banc), cert. denied, 450 U.S.
1001 (1981). The Jurek court stated:
In considering the voluntariness of a confession, this court must take
into account a defendant's mental limitations, to determine whether
through susceptibility to surrounding pressures or inability to comprehend
the circumstances, the confession was not a product of his own free will .
. . . The concern in a case involving a defendant of subnormal
intelligence is one of suggestibility.
623 F.2d at 937-38.
n11 Ellis & Luckasson, supra note 10, at 450-51.
n12 PRESIDENT'S PANEL ON MENTAL RETARDATION, REPORT OF
THE TASK FORCE ON LAW 33 (1963).
n13 Ellis & Luckasson, supra note 10, at 446.
n15 Id. at 448-49.
n16 Id. at 449.
n17 Id. at 452 n.207 (citing A.B.A. CRIMINAL JUSTICE MENTAL
HEALTH STANDARDS § 7-2.8 (1984)).
n18 See id. at 452 n.208 (citing A.B.A. CRIMINAL JUSTICE MENTAL
HEALTH STANDARDS § 7-3.1 commentary, at 75-76). A mental
retardation professional is one who has received special training
in the field of mental health. In an interview, a compassionate mental
retardation professional is capable of developing a sense of
trust in a retarded person such that the retarded person will be induced
to confess. Id.
n19 479 U.S. 157 (1986).
n20 Connelly, 479 U.S. at 163-64. Confessions made outside of a
custodial situation are examined under the fourteenth amendment due
process "voluntariness" test which only requires a confession to
be made voluntarily for it to be admissible.
n21 d. at 170. The Miranda decision requires the
prosecution to prove that a custodial confession was made voluntarily as
well as knowingly and intelligently for a Miranda waiver to
be valid. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
n22 Miranda warnings were established in response to the judicial
inconsistency in applying the old "totality of the
circumstances" test to determine the constitutionality of custodial
confessions in pre-Miranda cases. See Miranda, 384 U.S. at
n23 See Culombe v. Connecticut, 367 U.S. 568, 602 (1961);
Blackburn v. Alabama, 361 U.S. 199, 206 (1960).
n24 See Moran v. Burbine, 475 U.S. 412, 421 (1986) ("[O]nly
if the 'totality of the circumstances surrounding the interrogation'
reveals both an uncoerced choice and the requisite level of comprehension
may a court properly conclude that the Miranda rights have been
waived.") (quoting Fare v. Michael C., 442 U.S. 707, 725 (1979)).
n25 108 S. Ct. 2389 (1988).
n26 Id. at 2394-95.
n27 Id. at 2395; see Johnson v. Zerbst, 304 U.S. 458,
464 (1938) (a sixth amendment waiver is only valid when it reflects
"an intentional relinquishment or abandonment of a known right or
privilege"); Adams v. United States ex rel. McCann, 317 U.S.
269, 279 (1942) (the accused must "kno[w] what he is doing" so
that "his choice is made with eyes open").
n28 Patterson, 108 S. Ct. at 2395; see Moran, 475 U.S.
at 421 (the requirement of a knowing and intelligent waiver means "a
full awareness both of the nature of the right being abandoned and the
consequences of the decision to abandon it").
n29 Patterson, 108 S. Ct. at 2395.
n30 Id. at 2397 n.9.
n32 Id. at 2397-98. The Miranda Court stated that
"when the individual is first subjected to police interrogation while
in custody at the station or otherwise deprived of his freedom of action
in any significant way [i]t is at this point that our adversary system of
criminal proceedings commences . . . ." Miranda, 384 U.S. at
477. In Kirby v. Illinois, 406 U.S. 682 (1972), however, the Court
provided examples of when adversarial proceedings begin and, hence, when
the sixth amendment right to counsel attaches. These proceedings included
formal charge, preliminary hearing, indictment, information and
arraignment. Kirby, 406 U.S. at 689-90.
n33 See 1 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 6.1,
at 437 (1984).
n34 297 U.S. 278 (1936).
n35 Id. at 286.
n36 See Rogers v. Richmond, 365 U.S. 534, 543 (1961) (confession
involuntary where police threatened to bring defendant's wife into custody
n37 See Leyra v. Denno, 347 U.S. 556, 586 (1954) (confession
involuntary where state employed psychiatrist questioned defendant for an
unreasonably long period).
n38 See Spano v. New York, 360 U.S. 315, 323 (1959) (confession
involuntary where close friend told defendant to confess to avoid
n39 See Culombe v. Connecticut, 367 U.S. 568, 602 (1961).
n40 Beecher v. Alabama, 389 U.S. 35, 36 (1967) (defendant ordered to
confess at gun point after being shot in the leg).
n41 See Blackburn v. Alabama, 361 U.S. 199, 205 (1960)
(confession made by an insane person of a "schizophrenic . . .
paranoid type" would "grievously breach" due process even
though the police involved did not observe any signs of mental illness and
did not resort to threats or violence against the defendant); Fikes v.
Alabama, 352 U.S. 191, reh'g denied, 352 U.S. 1019 (1957).
n42 See Culombe, 367 U.S. at 568.
n43 Clewis v. Texas, 386 U.S. 707, 712 (1967) (defendant had a fifth grade
n44 Haley v. Ohio, 332 U.S. 596, 599 (1948) (defendant was fifteen years
n45 See Townsend v. Sain, 372 U.S. 293, 307 (1963) (confession
involuntary because it was taken after the defendant was injected with a
drug having truth serum qualities).
n46 See Blackburn, 361 U.S. at 206 (quoting Fikes v. Alabama, 352
U.S. 191, 197, reh'g denied, 352 U.S. 1019 (1957)).
n47 See Bram v. United States, 168 U.S. 532, 565 (1897)
(confession found involuntary and thus inadmissible where the defendant
was taken into custody and stripped of his clothing).
n48 Malloy v. Hogan, 378 U.S. 1, 8 (1964).
n49 See supra note 6.
n50 384 U.S. 436 (1966).
n51 Id. at 445; see supra note 6.
n52 Miranda, 384 U.S. at 475-76, 479.
n53 d. at 458 (the goal of the Miranda warnings was to
counterbalance the inherent pressures of custodial interrogation).
n54 Id. at 475-77; see Moran v. Burbine, 475 U.S. 412,
422 (1986) ("[N]or is there any question about respondent's
comprehension of the full panoply of rights set out in the Miranda
warnings and of the potential consequences of a decision to relinquish
them"); Edwards v. Arizona, 451 U.S. 477, 484 (1981) (confession
suppressed because the state courts did not focus on whether the defendant
understood his Miranda rights).
n55 The language of the opinion, however, suggests that a strict test be
applied. See Miranda, 384 U.S. at 475 (reasserting the heavy
burden of proof placed on the government when constitutional rights are
n56 475 U.S. 412 (1986).
n57 Johnson v. Zerbst, 304 U.S. 458 (1938).
n58 Moran, 475 U.S at 421.
n59 See supra note 4.
n60 378 U.S. 478 (1964).
n61 An indictment is a written accusation originating from a prosecutor
and issued by a grand jury. BLACK'S LAW DICTIONARY 695 (5th ed. 1979).
n62 Escobedo, 378 U.S. at 492.
n63 Id. at 500; see Miranda v. Arizona, 384 U.S. 436,
442 (1966). "We have undertaken a thorough re-examination of the Escobedo
decision and the principles it announced, and we reaffirm it." Miranda,
384 U.S. at 442.
n64 406 U.S. 682 (1972).
n65 Id. at 689 (quoting Johnson v. New Jersey, 384 U.S. 719, 729
n66 Id. at 690-91. The sixth amendment begins with the phrase
"[i]n all criminal prosecutions . . . ." U.S. CONST. amend. VI.
n67 Kirby, 406 U.S. at 689.
n68 Id. at 690 (quoting Simmons v. United States, 390 U.S. 377,
n69 Adversary judicial criminal proceedings were found to have been
commenced by way of formal charge, preliminary hearing, indictment,
information or arraignment. Id. at 689.
n70 Id. at 691.
n71 Moran v. Burbine, 475 U.S. 412, 431 (1986). The defendant in Moran
presented both fifth amendment and sixth amendment defenses to exclude his
confession from being presented as evidence during trial.
n73 For an excellent discussion of the proposal to apply the sixth
amendment right to counsel at the investigatory stage, see Y. KAMISAR, F.
IMBAU & T. ARNOLD, CRIMINAL JUSTICE IN OUR TIME 19-36 (A. Howard ed.
1965); Ogletree, Are Confessions Really Good for the American Soul?: A
Proposal to Mirandize Miranda, 100 HARV. L. REV. 1826 (1987).
n74 American Ass'n on Mental Deficiency, New Definition for Mental
Retardation, 4 MENTAL RETARDATION 3 (1984).
The development period is defined as before the age of 18 years. AMERICAN
PSYCHIATRIC ASS'N, DIAGNOSTlC AND STATISTICAL MANUAL OF MENTAL DISORDERS,
28 (3rd ed. 1987) [hereinafter APA]. Impairments in adaptive behavior is a
term of art which refers to the discrepancy between behaviors expected at
a certain chronological age and the elementary or incompletely developed
behaviors exhibited. Amicus Brief for the American Ass'n on Mental
Deficiency at 4, Cleburne v. Cleburne Living Center, 473 U.S. 432, 442 n.9
(1985) No. 84-468). Example of impairments in adaptive behavior in mildly
retarded adult include the inability to participate effectively in subtle
social exchange, a need for assistance in purchasing clothing, a need for
assistance in travelling to distant towns, an inability to discuss
abstract or philosophical concepts, an inability to participate
effectively in hobbies requiring complex planning, a need for assistance
in handling money, and an inability to handle a demanding,job. AMERICAN
ASS'N ON MENTAL DEFICIENCY, CLASSIFICATION IN MENTAL RETARDATION
207-08 (H. Grossman ed. 1983). It is not to be confused with maladaptive
behavior. Maladaptive behavior includes psychiatric and psychological
disorders that may find expression in aggression towards others or
oneself, malicious destructiveness, and the like. Amicus Brief for the
American Ass'n on Mental Deficiency, at 4 n.1, Cleburne, 473 U.S.
n75 General intellectual functioning is quantified by an intelligence
quotient (IQ) through the administration of a general intelligence test.
APA, supra note 74, at 28. These tests include the Wechsler
Intelligence Scale for Children -- Revised, the Stanford Binet, and the
Kaufman Assessment Battery for Children. Id.
n76 Id. The intelligence scale for subaverage intellectual
functioning is probably a misnomer because it reflects a "positive
association" between intelligence and adaptive behavior. It purposely
excludes from the diagnosis those with IQs somewhat lower than 70 if the
clinical judgment is that there are no significant deficits or impairments
in adaptive functioning. An IQ level of 70 and below represents mainly
those who require special services and care. Id.
n77 Id. at 28-29. It examines how well the person meets the
standards of maturation, learning, personal independence and social
responsibility expected of his or her age by his or her cultural group. Id.
Influenced by personality characteristics, motivation, education and
social and vocational opportunities, adaptive behavior is more likely to
improve with remedial efforts than is IQ, which tends to remain more
stable. Id. at 29.
n78 Id. at 29. These scales include the Vineland Adaptive
Behavior Scales and the American Association of Mental Deficiency Adaptive
n79 Id. at 30.
n80 Id. at 32. About eighty-five percent of those who are
mentally retarded are classified as mildly retarded or
"educable." This subclass has an IQ ranging from 50 to about 70.
By their adult years they can acquire academic skills to approximately the
sixth-grade level, and "they usually achieve social and vocational
skills adequate for minimum self-support, but may need guidance and
assistance when under unusual social or economic stress." Id.
Approximately ten percent are moderately retarded or classified as
"trainable." Id. Those at this level have an IQ ranging
from 35 to 50 and usually do not exceed a second grade academic level. Id.
They may perform unskilled or semiskilled work under close supervision,
but require supervision and guidance under stress. Id.
Nearly three to four percent are considered severely retarded and have an
IQ ranging between 20 and 35. As adults, they may perform simple tasks
under close supervision and learn to sight-read some "survival"
words. Id. at 32-33.
Approximately one to two percent are profoundly retarded and have an IQ
below 20. These individuals require constant care and supervision, but may
perform simple tasks. Id.
n81 Id. at 29-30. In approximately thirty to forty percent of
those cases which are seen in clinical settings, there is no known cause
of mental retardation. Id. at 30. In the
remaining cases, approximately five percent are caused by hereditary
factors. Id. These factors include inborn metabolic errors such
as Tay-Sachs disease, other single-gene abnormalities such as tuberous
sclerosis, and chromosomal aberrations such as translocation Down
syndrome. Thirty percent are caused by early alterations of embryonic
development. Id. These alterations include chromosomal changes
such as trisomy 21 syndrome, prenatal damage due to toxins such as
maternal alcohol consumption and infections, and other, unknown causes.
Ten percent are caused by pregnancy and prenatal problems, such as fetal
malnutrition, prematurity, hypoxia, or trauma, and five percent are due to
physical disorders acquired in childhood such as infections, traumas, and
lead poisoning. Id. Another fifteen to twenty percent are due to
environmental influences and mental disorders such as deprivation of
nuturance, and of social, linguistic, and other stimulation, and
complications of severe mental disorders. Id.
n82 Ellis & Luckasson, supra note 10, at 424-25 & n.57.
n83 INTERNATIONAL ASS'N OF CHIEFS OF POLICE, INC., TRAINING KEY 338, at 2
(1984) [hereinafter POLICE TRAINING KEY 338].
n85 INTERNATIONAL ASS'N OF CHIEFS OF POLICE, INC., TRAINING KEY 353, at 2
(1985) [hereinafter POLICE TRAINING KEY 353].
n86 Id. at 1.
n88 Id. at 3.
n89 Mickenberg, Competency to Stand Trial and the Mentally Retarded
Defendant: The Need for a Multi-Disciplinary Solution to a
Multi-Disciplinary Problem, 17 CAL. W.L. REV. 365, 365 (1981).
n90 Ellis & Luckasson, supra note 10, at 430. One national
study on retardation used the example of a mentally retarded janitor who
confessed to murdering a girl and her roommate. The janitor's lawyer
discerned his client's retardation level and found that the young man
"would have confessed to the murder of Julius Caesar if the police
had asked him. He was simply overjoyed at having a group of adults and men
in uniform listen to his confession with great interest." POLICE
TRAINING KEY 353, supra note 85, at 4-5.
n91 Ellis & Luckasson, supra note 10, at 430.
n92 POLICE TRAINING KEY 353, supra note 85, at 4.
n93 See Ellis & Luckasson, supra note 10, at 424-25.
n95 See Smith v. Kemp, 664 F. Supp. 500, 502-03 (M.D. Ga. 1987), appeal
dismissed, 849 F.2d 481 (11th Cir.), aff'd in part, rev'd in part,
855 F.2d 712 (1988). In Smith, a Georgia court found that a
confession by a retarded person having an IQ of 65 was not knowingly and
intelligently made. In that case, a psychiatrist who examined the
defendant testified that:
I think that this individual's intellectual limitations seriously question
whether this man understood the consequences of confession and whether or
not he understood what his rights are. In our work with this man, you had
to be very slow and very patient in describing things to him. It certainly
appeared to me both from my evaluation of him and his testing that he
understood that what he was doing was confessing, but I don't believe
the man had an intellectual appreciation of what this confession would
mean to him, nor do I think most people with an IQ in this range would
have such an appreciation unless it was very carefully explained to them.
What I can't comment on, because I wasn't there, is how carefully it was
explained to him, how slow they went with this, but unless this was done
very patiently and very slowly, I don't believe he has the intellectual
capacity to understand what it would mean to him.
Id. (emphasis in original).
n96 Id. at 502. The psychiatrist in Smith also testified
I think behavioral impairments or the inability to cope or adapt are
related to the intellectual deficiency, but individuals who are retarded
have a great deal of difficulty with adapting behavior, they have flawed
judgment, flawed impulse control, they usually fairly easily become
anxious and somewhat confused, they are usually rather dependent
individuals who do not cope well in stressful situations . . . I think
[Smith's mental handicaps] substantially impaired [his] capacity to
conform under situations, especially where he would be under stress.
n97 See supra notes 10-18 and accompanying text.
n98 Colorado v. Connelly, 479 U.S. 157, 160 (1986).
n106 Id. at 183 (Brennan J., dissenting).
n107 Id. at 161.
n109 This illness always involves delusions, hallucinations or certain
characteristic disturbances in affect and the form of thought. APA, supra
note 74, at 187. Affect refers to emotional responses. For example, a
person suffering from schizophrenia may show no sign of expression, have
an immobile face and monotonous voice, and release inexplicable outbursts
of anger. Id. at 189. Form of thought refers to incoherent or
incomprehensible speech due to the associating statements which are
completely unrelated or only obliquely related. Id. at 188.
Hallucinations involve false sensory perceptions such as external voices,
tingling or burning sensations, or snakes crawling within the abdomen. Id.
at 189. In comparison, delusions are false personal beliefs, despite
uncontroverted proof that are not accepted by other members of a person's
culture. Id. at 395. Schizophrenia is diagnosed when the
characteristic disturbances are manifest for a period of 6 months. Id.
at 191. If the disturbances began over two years ago, then the individual
suffers from chronic schizophrenia. Id. at 195. Persons suffering
from thinking disorders, such as schizophrenia, may be at an advanced age
at onset, such as middle or late adult life. Id. at 190.
n110 Connelly, 479 U.S. at 161.
n112 Id. The term volition refers to the exercise of one's will
or choice. Cognition, on the other hand, refers to one's knowledge or
capacity to understand.
n113 Connelly, 479 U.S. at 162; see Townsend v. Sain,
372 U.S. 293 (1963); Culombe v. Connecticut, 367 U.S. 568 (1961).
n114 Connelly, 479 U.S. at 161-62.
n115 Id. at 167, 170.
n116 Connelly, 479 U.S. at 169-70.
n117 Id. at 167.
n118 See Culombe, 367 U.S. at 602 ("[e]ach of these factors,
in company with all the surrounding circumstances -- the duration and
condition of detention . . . [the defendant's] physical and mental state,
the diverse pressures which sap . . . his powers of resistance and self
control -- is relevant") (citation omitted).
n119 Connelly, 479 U.S. at 166-67.
n120 Id. at 167 (quoting Lisenba v. California, 314 U.S. 219, 236
(1941), reh'g denied, 315 U.S. 826 (1942)).
n121 See id. at 167, 170.
n122 Id. at 170 (quoting Oregon v. Elstad, 470 U.S. 298, 305
n123 Id. at 170-71. The Court seemed particularly skeptical of
the medical profession in this area.
n124 361 U.S. 199 (1960).
n125 Id. at 202-03.
n126 372 U.S. 293 (1963).
n127 Id. at 307. "It is not significant that the drug may
have been administered and the questions asked by persons unfamiliar with
[the drug's] properties as a 'truth serum' if the properties exist." Id.
n128 Note, Colorado v. Connelly: The "Involuntary "
Reduction in Federal Due Process, 14 WEST. ST. L. REV. 551 (1987).
n129 Blackburn, 361 U.S. at 207.
n130 See Colorado v. Connelly, 479 U.S. 157, 165 (1986).
n131 Miranda v. Arizona, 384 U.S. 436, 444 (1966).
n132 475 U.S. 412, 421 (1986).
n134 "The voluntariness of a waiver of this privilege has
always depended on the absence of police overreaching . . . . " Connelly,
479 U.S. at 157, 170 (emphasis added).
It is possible to read the opinion of the Supreme Court of Colorado as
finding respondent's Miranda waiver invalid on other grounds.
Even if that is the case, however, we nonetheless reverse the judgment in
its entirety because of our belief that the Supreme Court of Colorado's
analysis was influenced by its mistaken view of 'voluntariness' in the
constitutional sense. Reconsideration of other issues, not inconsistent
with our opinion, is of course open to the Supreme Court of Colorado on
Id. at 171 n.4. In a dissenting opinion, Justice Brennan
suggested that the Colorado Supreme Court consider the knowing and
intelligent components of a valid Miranda waiver. Id. at
n135 Patterson v. Illinois, 108 S. Ct. 2389 (1988).
n136 Smith v. Kemp, 664 F. Supp. 500 (M.D. Ga. 1987), appeal dismissed,
849 F.2d 481 (11th Cir.), aff'd in part, rev'd in part, 855 F.2d
n137 "The sole concern of the fifth amendment, on which Miranda
was based, is governmental coercion." Connelly, 479 U.S. at
170. In addition, Justice Brennan scolded the majority for not explaining
why an independent finding of voluntariness should taint the state court's
judgment of an invalid waiver such that the whole judgment must be
reversed. Id. at 188.
n138 304 U.S. 458 (1938).
n139 Id. at 464.
n141 Miranda set a high burden of proof upon the prosecution to
overcome this presumption. Miranda v. Arizona, 384 U.S. 436, 475 (1966).
If the interrogation continues without the presence of an attorney and a
statement is taken, a heavy burden rests on the government to demonstrate
that the defendant knowingly and intelligently waived his privilege
against self-incrimination and his right to retained or appointed counsel.
This Court has always set high standards of proof for the waiver of
constitutional rights and we re-assert these standards as applied to
Id. (citations omitted). The Connelly Court held that
the prosecution must bear its burden of proving a waiver of Miranda
rights by a "preponderance of the evidence" standard as opposed
to a "clear and convincing evidence" standard. Connelly,
479 U.S. at 169. "If . . . the voluntariness of a confession need be
established only by a preponderance of the evidence, then a waiver of the
auxiliary protections established in Miranda should require no
higher burden of proof." Id.
n142 A defendant "must . . . be informed in clear and unequivocal
terms that he has the right to remain silent. For those unaware of the
privilege, the warning is needed simply to make them aware of it -- the
threshold requirement for an intelligent decision as to its
exercise." Miranda, 384 U.S. at 467-68; cf.
California v. Prysock, 453 U.S. 355 (1981) (per curiam).
n143 Miranda, 384 U.S. at 467-68.
n144 This warning is needed in order to make him aware not only of the
privilege, but also of the consequences of foregoing it. It is only
through an awareness of these consequences that there can be any assurance
of real understanding and intelligent exercise of the privilege.
Id. at 469.
n145 See Note, The Supreme Court Limits Criminal Defendants'
Constitutional Protections in Confession Cases: Colorado v. Connelly,
37 DE PAUL L. REV. 259 (1988).
n146 Connelly, 479 U.S. at 170 ("[T]he relinquishment of the
right must have been voluntary in the sense that it was the product of a
free and deliberate choice rather than intimidation, coercion or deception
. . . . [T]he record is devoid of any suggestion that police resorted to
physical or psychological pressure to elicit the statements.")
(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)). For the substance of
the omission from this quote, see supra note 50 and accompanying
n147 Moran v. Burbine, 475 U.S. 412, 421 (1986).
n148 Ellis & Luckasson, supra note 10, at 423.
n149 Id. at 424.
n150 Id. at 427.
n152 See supra note 109.
n153 Id. at 424. Mentally retarded individuals, however, may also
acquire mental illnesses. Id. at 425. Such a dual diagnosis can
only be made when a mentally retarded person does not have difficulties in
communication that cause the false appearance of delusions or
hallucinations. APA, supra note 74, at 193.
n154 Connelly, 479 U.S. at 160-61.
n155 See Rhode Island v. Innis, 446 U.S. 291, 302 n.8 (1980), cert.
denied, 456 U.S. 942 (1982).
Any knowledge the police may have had concerning the unusual
susceptibility of a defendant to a particular form of persuasion might be
an important factor in determining whether the police should have known
that their words or actions were reasonably likely to elicit an
incriminating response from the suspect.
Innis, 446 U.S. at 302 n.8.
n156 Ellis & Luckasson, supra note 10, at 449-50. A mentally
retarded individual will often have difficulty signing his or her name.
n157 For a list of techniques and questions to aid the police officer in
recognizing mental retardation and guidelines for
interrogating and arresting a mental retarded person, see POLICE TRAINING
KEY 353, supra note 85, at 2-5. The following checklist and
questions help police identify mental retardation in a
1. Is the individual appropriately dressed for the season?
2. Are articles of clothing suitable[y] arranged (i.e. buttoned, zippered,
3. Does the individual move awkwardly as if poorly coordinated?
4. Are there any observable physical defects of abnormalities?
5. Test: Can the individual easily button his or her coat?
Speech and Language
1. Does the person have a speech difficulty or impediment?
2. Does the person merely parrot questions instead of answering them?
3. Does the person seem to understand questions that are asked?
4. When questioned, does the individual have a very slow reaction time?
5. When questioned, does the person exhibit a very short attention span?
6. Test: Can the person give coherent directions from one place to
7. Test: Can the person repeat a question in his own words?
1. If a juvenile, is the person in an appropriate school grade relative to
2. Is the juvenile enrolled in a special school or class or a training
3. Test: Can the person write his or her name clearly and without
4. Test: Can the person read and understand a newspaper?
5. Test: Can the person recognize coins and make change?
1. If an adult or teenager, does the individual prefer the company of much
2. Does the person exhibit an excessive desire to please others?
3. Does the person tend to answer yes or no questions affirmatively even
if a yes answer seems inappropriate?
4. When questioned, does the person mention a benefactor or someone who
regularly looks out for him?
5. Test: Can the person tell time easily?
6. Test: Can the person use a telephone?
Id. at 2-3.
When an officer apprehends a mentally retarded suspect, the training guide
recommends that the officer take note that the suspect may have been
exploited by a more intelligent lawbreaker. It also instructs police to
use "extreme care in choosing his words and manner of speech." Id.
at 4. In order to ascertain whether the suspect understands the officer's
questions, it suggests that the officer request the suspect to repeat each
question in his own words. Furthermore, an officer should be patient and
repeat things several times and in many different ways. Id. at 5.
n158 But see Rogers, Nussbaum & Gillis, Command
Hallucinations and Criminality: A Clinical Quandary, 16 BULL. AM.
ACAD. PSYCHIATRY L. 251, 254-55 (1988) (discussing clinical probes for
distinguishing malingered from authentic hallucinations, including the M
test, a 33-item true- false scale to differentiate actual schizophrenics
from those simulating schizophrenic systems).
n159 See supra notes 41, 45, 124-27 and accompanying text.
n160 Ellis & Luckasson, supra note 10, at 446.
n162 Telephone interview with George Niemann, Ph.D., President and Chief
Executive Officer of the Bancroft School, Haddonfield, N.J. (Nov. 6,
n163 See Colorado v. Spring, 497 U.S. 564, 569 (1987).
n164 Miranda v. Arizona, 384 U.S. 436, 448 (1966).
n165 Colorado v. Connelly, 479 U.S. 157, 165 (1986).
n166 For an excellent discussion of this proposal, see Ogletree, supra
note 73, at 1826. This proposal is particularly sensible in the case of a
mentally retarded suspect having questionable capacity to understand his
rights without an elaborate and patient explanation.
n167 Henry v. Dees, 658 F.2d 406, 411 (5th Cir. 1980) (an educable
retardate with an IQ between 65 and 69 was granted habeas corpus relief.
"When persons of markedly limited mental ability such as Henry, are
questioned without the aid of counsel, issues of suggestibility and
possible overreaching are raised . . . and must be factored into a
consideration of the totality of the circumstances.'" Id.
(quoting Jurek v. Estelle, 623 F.2d 929, 938 (5th Cir. 1980), cert.
denied, 450 U.S. 1001, reh'g denied, 451 U.S. 1011 (1981)).
n168 Henry, 658 F.2d at 411. "Extra precautions must be
taken. It must be painstakingly determined that they comprehend what
events are transpiring. In addition, the presence of counsel should be
assured absent an unmistakable knowing waiver of that assistance." Id.
n169 See Note, supra note 145, at 283 (arguing that a
mentally ill person's ability to resist coercion may be significantly
inferior to that of the average person); but see Rogers, Nussbaum
& Gillis, supra note 158, at 251 (citing Amicus Brief for the
American Psychological Ass'n, at 20, Colorado v. Connelly, 479 U.S. 157
(1986)) (the American Psychological Ass'n submitted to the Court that less
than one percent of those persons who experience command hallucinations
follow them, thus command hallucinations are not coercive). Command
hallucinations are characterized by the presence of instructions or
nonnegotiable demands made on a person by the hallucination. Rogers,
Nussbaum & Gillis, supra note 158, at 253.
n170 Connelly, 479 U.S. at 161.
n171 As a point of clarification, mentally retarded persons may also
suffer from a mental illness. Mentally ill persons who are also mentally
retarded are excluded from the class referred to as mentally ill for
purposes of this analysis.
n172 Mental retardation develops before the age of
eighteen years, with the majority of cases stemming from birth.
n173 Telephone interview with Elizabeth M. Boggs, Ph.D., Consultant,
Hampton, N.J. (Nov. 12, 1987).
n174 297 U.S. 278 (1936).
n175 Colorado v. Connelly, 479 U.S. 157, 163 (1966) (quoting Brown,
297 U.S. at 286).
n176 See Paulsrud, The Least Restrictive Alternative: A
Theory of Justice for the Mentally Retarded, 10 UNIV. ARK. LITTLE
ROCK L.J. 465 (1987-88).
n177 477 U.S. 399 (1986).
n178 See id. at 410. Whether Ford also should apply in the case
of a mentally retarded person was argued before the Supreme Court on
January 11, 1989. See Penry v. Lynaugh, 57 U.S.L.W. 3014 (U.S.
July 7, 1988) (No. 87-6177).
n179 Ford, 477 U.S. at 403.
n180 Id. at 410.
n181 Id. at 406 (quoting Trop v. Dulles, 356 U.S. 86, 101
n182 Ford, 477 U.S. at 410.
n183 The term "mental deficiency" is sometimes used in reference
to mentally retarded individuals. This term connotes a mentally retarded
person's deficiency in the area of cognitive ability.
n184 Ford, 477 U.S. at 422.
n185 A.B.A. STANDARDS FOR CRIMINAL JUSTICE § 7-5-6 (Aug. 12, 1987).
n186 See Ford, 477 U.S. at 409-10.
n187 Cf. Oregon v. Elstad, 470 U.S. 298, 308 (1985) (discussing
Michigan v. Tucker, 417 U.S. 433 (1974)).
n188 Smith v. Kemp, 664 F. Supp. 500, 507 (M.D. Ga. 1987), appeal
dismissed, 849 F.2d 481 (11th Cir.), aff'd in part, rev'd in part,
855 F.2d 712 (1988).
n189 108 S. Ct. 2389 (1988).
n190 Id. at 2392.
n193 Id. at 2392-93.
n194 Id. at 2393.
n196 Id. at 2394.
n197 Id. at 2393.
n199 Id. at 2397.
n200 Id. at 2393.
n201 Id. at 2394.
n202 Id. at 2395 (quoting Johnson v. Zerbst, 304 U.S. 458, 464
(1938); Moran v. Burbine, 475 U.S. 412, 421 (1986)).
n203 Id. at 2398.
n204 Id. at 2394 & n.4.
n205 Id. at 2395.
n206 Id. at 2397.
n207 Id. at 2394 n.4.
n209 Id. at 2395.
n211 Id. at 2396.
n212 Id. at 2395.
n215 Id. at 2395-96.
n216 Id. at 2396-97.
n218 Id. at 2394. For a definition of indictment, see supra
n219 Patterson, 108 S. Ct. at 2394; see Edwards v.
Arizona, 451 U.S. 477, reh'g denied, 452 U.S. 973 (1981) (a
preindictment suspect who asserted his fifth amendment right to counsel
could not be questioned until he initiated a discussion).
n220 Patterson, 108 S. Ct. at 2397.
n221 Id. at 2397-98.
n222 Id. at 2394.
n223 In support of the first reason, the Court never suggested that these
constitutional rights, although different in substance, are also different
in terms of importance. Id. at 2397. The third rationale simply
extends the holding in Edwards, a fifth amendment case, to a
sixth amendment situation. See supra note 219 and accompanying
n224 Patterson, 108 S. Ct. at 2398.
n225 Id. (quoting United States v. Ash, 413 U.S. 300, 313-20
n226 Id. at 2398.
n227 Miranda v. Arizona, 384 U.S. 436, 444 (1966).
n228 Patterson, 108 S. Ct. at 2394 n.4.
n229 See supra notes 160-63 and accompanying text.
n230 664 F. Supp. 500, 505 (M.D. Ga. 1987).
n231 See Cooper v. Griffin, 455 F.2d 1142, 1145 (5th Cir. 1972).
Although the state offered testimony of the arresting officers that two
retarded brothers appeared to understand their Miranda rights,
this evidence was insufficient to support a finding that the brothers
appreciated the consequences of their decisions to confess. The court
voiced doubt that the boys even understood the words that were used to
explain their rights. Id.
n232 Patterson, 108 S. Ct. at 2398.
n233 For a summary of this case, see supra note 219.
n234 POLICE TRAINING KEY 353, supra note 5, at 5.
n236 664 F. Supp. at 507.