A police officer reports to the scene of a burglary in progress. As the officer approaches, a suspect is seen running through back yards. The officer orders the suspect to stop, which he does. A large screwdriver is found in the back pocket of the suspect, and pry marks are found on the rear door of a nearby home. The officer then places the suspect under arrest and transports him to the jail, intending to question the suspect on their arrival. However, during the ride to the jail, it becomes obvious to the officer that the suspect is of subnormal intelligence.
Before questioning a suspect who is in custody, Miranda v. Arizona requires a police officer to advise the suspect of certain constitutional rights. But that is not the only requirement. The suspect must also make a "knowing and intelligent" waiver of those rights before the interview continues. That raises an important question: How can a suspect of subnormal intelligence ever make an "intelligent" waiver of those rights?
Miranda waivers are a particularly thorny issue when the person being interviewed is a juvenile or an adult with a low level of intelligence. In People v. Bernasco (1990), the Illinois Supreme Court held that a burglary confession was inadmissible as evidence because it was taken from a seventeen-year-old with an I.Q. of 80 who was simply not capable of making a "knowing and intelligent" waiver of his rights. It was considered irrelevant that the confession was voluntary; all that mattered was the fact that Miranda requires an "intelligent" waiver of rights, and the juvenile was simply incapable of exercising that type of intelligence!
A few methods of resolving this issue have been proposed, but none seem practical. One proposal involves an easy-to-read but detailed rights form for children and low-I.Q. adults. However, the extensive detail and explanation required by such a form would make suspect interviews too complex to be effective. Another proposal would require the presence of legal counsel at the time a statement is made by the child or low-I.Q. adult. The flaw of this approach is obvious; once legal counsel is present, the likelihood of a confession is almost nil.
So what solutions are available? The following options, while not perfect, seem to be the best available: