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Constitutional Protection of Confessions Made by Mentally Retarded Defendants

American Journal of Law & Medicine 1989 14 Am. J. L. and Med. 431

DONNA M. PRAISS

SUMMARY:
  ... 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 pressure. ...  



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.

TEXT:
 [*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 confessions.

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 made. n54

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 JUSTICE SYSTEM

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 retardation. n79

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 confession. n97
 
IV. RECENT INTERPRETATIONS OF THE FOURTEENTH AND FIFTH AMENDMENT PROTECTIONS

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 Voluntariness

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 DEFENDANT

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 retardation. n153

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 moment.

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. n157

 [*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 capacity.

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. n162

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 it." n184

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 deficient suspect.
 
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 intelligent waiver.
 
 [*461]  3. Scope of the Sixth Amendment Right to Counsel Explained

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 attorney. n222

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.
 
VI. CONCLUSION

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 suspect.

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 Court's prerequisite.

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 Court.

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 of justice.

FOOTNOTES:
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 interrogated.

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.

n14 Id.

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 441-42.

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.

n31 Id.

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 for questioning).

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 trouble).

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 education).

n44 Haley v. Ohio, 332 U.S. 596, 599 (1948) (defendant was fifteen years old).

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 waived).

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 (1966)).

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, 382-83 (1968)).

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.

n72 Id.

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. at 432.

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 Behavior Scale.

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].

n84 Id.

n85 INTERNATIONAL ASS'N OF CHIEFS OF POLICE, INC., TRAINING KEY 353, at 2 (1985) [hereinafter POLICE TRAINING KEY 353].

n86 Id. at 1.

n87 Id.

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.

n94 Id.

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 that:
 
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.
 
Id.

n97 See supra notes 10-18 and accompanying text.

n98 Colorado v. Connelly, 479 U.S. 157, 160 (1986).

n99 Id.

n100 Id.

n101 Id.

n102 Id.

n103 Id.

n104 Id.

n105 Id.

n106 Id. at 183 (Brennan J., dissenting).

n107 Id. at 161.

n108 Id.

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.

n111 Id.

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 (1985)).

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. at 308.

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).

n133 Id.

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 remand.
 
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 188.

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 712 (1988).

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.

n140 Id.

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 in-custody interrogation.
 
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 text.

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.

n151 Id.

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 suspect:
 
Physical Appearance
1. Is the individual appropriately dressed for the season?
2. Are articles of clothing suitable[y] arranged (i.e. buttoned, zippered, belted, etc.)?
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 another?
7. Test: Can the person repeat a question in his own words?
 
Educational Level
1. If a juvenile, is the person in an appropriate school grade relative to age?
2. Is the juvenile enrolled in a special school or class or a training center?
3. Test: Can the person write his or her name clearly and without difficulty?
4. Test: Can the person read and understand a newspaper?
5. Test: Can the person recognize coins and make change?
 
Social Maturity
1. If an adult or teenager, does the individual prefer the company of much younger persons?
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.

n161 Id.

n162 Telephone interview with George Niemann, Ph.D., President and Chief Executive Officer of the Bancroft School, Haddonfield, N.J. (Nov. 6, 1987).

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 (1958)).

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.

n191 Id.

n192 Id.

n193 Id. at 2392-93.

n194 Id. at 2393.

n195 Id.

n196 Id. at 2394.

n197 Id. at 2393.

n198 Id.

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.

n208 Id.

n209 Id. at 2395.

n210 Id.

n211 Id. at 2396.

n212 Id. at 2395.

n213 Id.

n214 Id.

n215 Id. at 2395-96.

n216 Id. at 2396-97.

n217 Id.

n218 Id. at 2394. For a definition of indictment, see supra note 61.

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 text.

n224 Patterson, 108 S. Ct. at 2398.

n225 Id. (quoting United States v. Ash, 413 U.S. 300, 313-20 (1973)).

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.

n235 Id.

n236 664 F. Supp. at 507.