Capacity to Waive Rights

With the Fifth Amendment right against self-incrimination and the Fourteenth Amendment right to due process as its grounding, the U.S. Supreme Court, in Miranda v. Arizona (1966), established important procedural protections for criminal suspects in custodial interrogations. Aware of the inherently coercive nature of interrogations and of suspects’ risk of self-incrimination, the Miranda Court mandated that the police notify suspects of their right to silence and legal representation. The Court further ruled that a suspect may waive these rights, but the waiver would be considered valid only if it were provided knowingly, intelligently, and voluntarily.

To determine the validity of a Miranda waiver, courts typically examine the totality of circumstances under which the waiver was given, including both situational characteristics (e.g., length of the interrogation, strategies used to obtain the confession) and characteristics of the defendant (e.g., age, intelligence, prior criminal history). However, the question of how to weigh each of these factors in determining the validity of a waiver is left to the discretion of the judge. Thus, a judge or an attorney may request a forensic evaluator to aid the court in determining a defendant’s capacity to meet the requirements of a valid waiver of rights.

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Identification of Relevant Capacities

The first two elements of the standard, knowing and intelligent, are related to individuals’ cognitive abilities: the ability to understand the meaning of the rights and to appreciate the consequences of waiver and nonwaiver decisions. Thus, forensic evaluators are able to conduct clinical and psychological assessments and inform the courts about individuals’ specific abilities or deficits in these areas (e.g., whether they have the cognitive developmental and/or intellectual capacities to grasp the concept of a right as an entitlement rather than as a privilege that can be revoked). The voluntariness element, however, is more speculative because it considers the interaction between the situational characteristics of the interrogation (e.g., coercive police interrogation strategies used to extract a confession) and individual characteristics that may influence a defendant’s waiver decision (e.g., susceptibility to suggestion by authority figures, psychosocial immaturity). Because forensic evaluators have little additional information to offer the courts about the situational characteristics, they typically address the issue of voluntariness less directly; they examine the capacities related to the knowing and intelligent elements and provide information about defendants’ specific vulnerabilities that may influence their waiver decisions.

To meet the knowing and intelligent requirements of a valid waiver, one must demonstrate three primary capacities. First, one must demonstrate the ability to comprehend the meaning of the Miranda warnings. Simply, does the suspect understand the basic meaning of each of the warnings?

Second, one must be able to appreciate the significance of the rights. Slightly more complex than the first capacity, this ability is related to whether suspects are able to appreciate the importance of the warnings within the context of the legal process. For example, suspects may understand that they have the right to remain silent. However, if they lack an understanding of the adversarial nature of the criminal proceeding and mistakenly believe that exercising the right to silence will make them appear guilty, then their misunderstanding might impair their ability to benefit from the right.

Last, one must display the ability to reason about choices to make a waiver decision. This more complex ability, compared with the previous capacities, requires individuals to consider various options throughout the interrogation process (e.g., whether to talk with the police about the crime) and to weigh the short- and long-term consequences of each option (e.g., talking with the police now may lead to immediate release, but it also may result in one’s statements being used against one in court at a later date).

Assessment of Relevant Capacities

In the 1970s, Thomas Grisso developed a series of instruments, the Instruments for Assessing Understanding and Appreciation of Miranda Rights, designed to assess the capacities previously described. Briefly, these instruments are composed of four discrete measures to assess different capacities.

First, Comprehension of Miranda Rights (CMR) is designed to assess examinees’ basic understanding of each of the warnings. Examinees are read out each warning and asked to paraphrase the meaning of the warning. Second, Comprehension of Miranda Rights-Recognition (CMR-R) is also designed to assess examinees’ understanding of their rights, but this measure does so without reliance on verbal expressive abilities; examinees must only identify whether a series of statements means the same thing as, or something different from, the warnings. Thus, it provides the opportunity for examinees with difficulties articulating their understanding to demonstrate their comprehension. Third, Comprehension of Miranda Vocabulary (CMV) evaluates examinees’ understanding of six words found in the Miranda warnings by asking them to define the following terms: consult, attorney, interrogation, appoint, entitled, and right. Last, the Function of Rights in Interrogation (FRI) is the only measure that assesses examinees’ appreciation of the significance of the warnings. Evaluators present four short vignettes with illustrations of police, legal, and court proceedings to examinees. After reading each vignette, examiners ask open-ended questions about the vignette (e.g., If the judge finds out that the defendant would not talk to the police, then what would happen?).

The first three measures of the Instruments for Assessing Understanding and Appreciation of Miranda Rights, the CMR, CMR-R, and CMV, assess capacities related to the knowing element of the standard for a valid waiver of rights. The final measure in the instruments, the FRI, primarily assesses capacities related to the intelligent element of the standard.

Importantly, questions about the validity of a defendant’s waiver of rights may be raised at any point during the legal process, even weeks, months, or years after the waiver was provided. Consequently, the instruments provide direct information about examinees’ understanding and appreciation of their rights at the time of the evaluation, not at the time of testing; data from testing must be extrapolated to estimate understanding and appreciation at the time the actual Miranda waiver was provided.

To increase the accuracy of a defendant’s estimated capacities at the time of the Miranda waiver, forensic evaluators generally consider idiographic information in conjunction with the information obtained from Grisso’s instruments. Additional measures typically include a clinical interview and measures of intellectual functioning, academic achievement, and symptoms of mental illness. In addition, collateral interviews are conducted and relevant records reviewed. For juvenile defendants, specific measures related to cognitive functioning and developmental maturity are also often administered.


  1. Grisso, T. (1998). Forensic evaluation of juveniles. Sarasota, FL: Professional Resource Press.
  2. Grisso, T. (1998). Instruments for assessing understanding and appreciation of Miranda Sarasota, FL: Professional Resource Press.

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