A right to be understood?

Following up on yesterday’s post where I got to trot out a minor interest in readability scores, I saw this on twitter (courtesy of Prof Ed Cape) about whether rights to remain silent are understood.  You can read it here on the Open Society Foundation’s website. Here’s an excerpt, but the whole thing is not long and well worth a read.

A study in the United States evaluating police officers’ recitations of arrest rights revealed that the level of comprehension required to understand the rights varied from a 4th grade reading level to a college reading level. However, according to the National Adult Literacy Survey, 70% of inmates have the equivalent of a 6th grade reading level or lower. In other words, the recitation of rights upon arrest may be beyond the comprehension of the average arrestee.

In Hong Kong, a survey of customs officers who combat crime at the border revealed that 55% did not understand the right to remain silent as a protection against self-incrimination. This is a problem, because an officer who does not fully understand the right to remain silent cannot adequately communicate that right to arrestees.

Another study in the United States published by American Psychologistrevealed that 31% of defendants believed that remaining silent in the face of police questioning could be used as incriminating evidence at trial. This misunderstanding can compel individuals to offer information, including incriminating information, for fear that remaining silent will make them seem more culpable, thus completely defeating the purpose of the right to remain silent.

The current method of reciting to arrestees their right to remain silent does not take into account the varying levels of comprehension that different people may have. People who are uneducated, mentally-ill, or intellectually disabled are more likely to come into contact with the justice system; many people are arrested when they are under the influence of drugs or alcohol, all factors which inhibit their ability to understand the rights read by police.

In Canada, the “Operating Mind Test” is used to determine whether arrestees have sufficient cognitive capacity to understand their rights. However, this test looks at whether the warnings provided are comprehensible in theory, rather than whether the arrestee actually understood them. In the 1994 case ofWhittle, the Candian Supreme Court determined that the warnings provided were comprehensible even though the defendant was suffering from schizophrenia and auditory hallucinations. This standard does not take into account the physiological effects of a mental disorder that may impede the ability to understand one’s rights. The Whittle decision has made it more likely that people who do not understand their rights will be found guilty.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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