¹ 384 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).

² 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.

³ 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.

⁴ 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.

⁵ See Miranda, 384 U.S. at 478.

⁶ 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.

⁷ “[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.

⁸ See Moran v. Burbine, 475 U.S. 412 (1986); Kirby v. Illinois, 406 U.S. 682 (1972).

⁹ Miranda, 384 U.S. at 444. The test announced in Miranda, a fifth amendment case, is essentially the same as the test espoused injohnson v. Zerbst, a sixth amendment case, lnjohnson, a waiver was defined as “an intentional relinquishment or abandonment of a known right or privilege.” Johnson, 304 U.S. 458, 464 (1938).

¹⁰ 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 w i l l … . The concern in a case involving a defendant of subnormal intelligence is one of suggestibility. 623 F.2d at 937-38.

¹¹ Ellis & Luckasson, supra note 10, at 450-51.

¹² PRESIDENT's PANEL ON MENTAL RETARDATION, REPORT OF THE TASK FORCE ON LAW 33 (1963).

¹³ Ellis & Luckasson, supra note 10, at 446.

¹⁴ Id.

¹⁵ Id. at 448-49.

¹⁶ Id. at 449.

¹⁷ Id. at 452 n.207 (citing A.B.A. CRIMINAL JUSTICE MENTAL HEALTH STANDARDS § 7-2.8 (1984)).

¹⁸ 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.

¹⁹ 479 U.S. 157(1986).

²⁰ 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.

²¹ Id. 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).

²² 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.

²³ See Culombe v. Connecticut, 367 U.S. 568, 602 (1961); Blackburn v. Alabama, 361 U.S. 199, 206 (1960).

²⁴ See Moran v. Burbine, 475 U.S. 412, 421 (1986)(“[0]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)).

²⁵ 108 S. Ct. 2389 (1988).

²⁶ Id. at 2394-95.

²⁷ 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“).

²⁸ 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“).

²⁹ Patterson, 108 S. Ct. at 2395.

³⁰ Id.. at2397n.9.

³¹ Id.

³² 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.

³³ See 1 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 6.1, at 437 (1984).

³⁴ 297 U.S. 278 (1936).

³⁵ Id. at 286.

³⁶ See Rogers v. Richmond, 365 U.S. 534, 543 (1961)(confession involuntary where police threatened to bring defendant's wife into custody for questioning).

³⁷ See Leyra v. Denno, 347 U.S. 556, 586 (1954)(confession involuntary where state employed psychiatrist questioned defendant for an unreasonably long period).

³⁸ See Spano v. New York, 360 U.S. 315, 323 (1959) (confession involuntary where close friend told defendant to confess to avoid trouble).

³⁹ See Culombe v. Connecticut, 367 U.S. 568, 602 (1961).

⁴⁰ Beecher v. Alabama, 389 U.S. 35, 36 (1967) (defendant ordered to confess at gun point after being shot in the leg).

⁴¹ 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).

⁴² See Culombe, 367 U.S. at 568.

⁴³ Clewis v. Texas, 386 U.S. 707, 712 (1967)(defendant had a fifth grade education).

⁴⁴ Haley v. Ohio, 332 U.S. 596, 599 (1948)(defendant was fifteen years old).

⁴⁵ 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).

⁴⁶ See Blackburn, 361 U.S. at 206 (quoting Fikes v. Alabama, 352 U.S. 191, 197, reh ‘g denied, 352 U.S. 1019 (1957)).

⁴⁷ 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).

⁴⁸ Malloy v. Hogan, 378 U.S. 1, 8 (1964).

⁴⁹ See supra note 6.

⁵⁰ 384 U.S. 436(1966).

⁵¹ Id. at 445; see supra note 6.

⁵² Miranda, 384 U.S. at 475-76, 479.

⁵³ Id. at 458 (the goal of the Miranda warnings was to counterbalance the inherent pressures of custodial interrogation).

⁵⁴ 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).

⁵⁵ 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).

⁵⁶ 475 U.S. 412 (1986).

⁵⁷ Johnson v. Zerbst, 304 U.S. 458 (1938).

⁵⁸ Moran, 475 U.S at 421.

⁵⁹ See supra note 4.

⁶⁰ 378 U.S. 478(1964).

⁶¹ An indictment is a written accusation originating from a prosecutor and issued by a grand jury. BLACK's LAW DICTIONARY 695 (5th ed. 1979).

⁶² Escobedo, 378 U.S. at 492.

⁶³ 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.

⁶⁴ 406 U.S. 682 (1972).

⁶⁵ W: at 689 (quoting Johnson v. New Jersey, 384 U.S. 719, 729 (1966)).

⁶⁶ Id. at 690-91. The sixth amendment begins with the phrase “[i]n all criminal prosecutions … .” U.S. CONST, amend. VI.

⁶⁷ Kirby, 406 U.S. at 689.

⁶⁸ Id. at 690 (quoting Simmons v. United States, 390 U.S. 377, 382-83 (1968)).

⁶⁹ Adversary judicial criminal proceedings were found to have been commenced by way of formal charge, preliminary hearing, indictment, information or arraignment. Id. at 689.

⁷⁰ Id. at 691.

⁷¹ 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.

⁷² Id.

⁷³ 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).

⁷⁴ 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, DIAGNOSTIC 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). Examples of impairments in adaptive behavior in a 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 . l , Cleburne, 473 U.S. at 432

⁷⁵ 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 inelude the Wechsler Intelligence Scale for Children — Revised, the Stanford Binet, and the Kaufman Assessment Battery for Children. Id.

⁷⁶ 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.

⁷⁷ 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.

⁷⁸ Id. at 29. These scales include the Vineland Adaptive Behavior Scales and the American Association of Mental Deficiency Adaptive Behavior Scale.

⁷⁹ Id. at 30.

⁸⁰ 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.

⁸¹ 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.

⁸² Ellis & Luckasson, supra note 10, at 424-25 & n.57.

⁸³ INTERNATIONAL ASS'N OF CHIEFS OF POLICE, INC., TRAINING KEY 338, at 2 (1984)[hereinafter POLICE TRAINING KEY 338].

⁴⁸ Id.

⁸⁵ INTERNATIONAL ASS'N OF CHIEFS OF POLICE, INC., TRAINING KEY 353, at 2 (1985)[hereinafter POLICE TRAINING KEY 353]. -

⁸⁶ Id. at 1.

⁸⁷ id.

⁸⁸ Id. a t 3 .

⁸⁹ 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).

⁹⁰ Ellis & Luckasson, supra note 10, at 430. One national study on retardation used the example of a mentally retarded j'anitor 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.

⁹¹ Ellis & Luckasson, supra note 10, at 430.

⁹² POLICE TRAINING KEY 353, supra note 85, at 4.

⁹³ See Ellis & Luckasson, supra note 10, at 424-25.

⁹⁴ Id.

⁹⁵ See Smith v. Kemp, 664 F. Supp. 500, 502-03 (M.D. Ga. 1987), appeal dismissed, 849 F.2d 481 (11 th Cir.), off ‘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 IQof 65 was not knowingly and intelligently made. In that case, a psychiatrist who examined the defendant testified that:

Id. (emphasis in original).

⁹⁶ Id. at 502. The psychiatrist in Smith also testified that:

Id.

⁹⁷ See supra notes 10-18 and accompanying text.

⁹⁸ Colorado v. Connelly, 479 U.S. 157, 160 (1986).

⁹⁹ Id.

¹⁰⁰ Id.

¹⁰¹ Id.

¹⁰² Id.

¹⁰³ Id.

¹⁰⁴ Id.

¹⁰⁵ Id.

¹⁰⁶ Id. at 183 (BrennanJ., dissenting).

¹⁰⁷ Id. at 161.

¹⁰⁸ Id.

¹⁰⁹ 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.

¹¹⁰ Connelly, 479 U.S. at 161.

¹¹¹ Id .

¹¹² 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.

¹¹³ Connelly, 479 U.S. at 162; see Townsend v. Sain, 372 U.S. 293 (1963); Culombe v. Connecticut, 367 U.S. 568 (1961).

¹¹⁴ Connelly, 479 U.S. at 161-62.

¹¹⁵ Id. at 167, 170.

¹¹⁶ Connelly, 479 U.S. at 169-70.

¹¹⁷ Id at 167.

¹¹⁸ 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).

¹¹⁹ Connelly, 479 U.S. at 166-67.

¹²⁰ Id. at 167 (quoting Lisenba v. California. 314 U.S. 219, 236 (1941), reh'g denied, 315 U.S. 826 (1942)).

¹²¹ See id. at 167, 170.

¹²² Id. at 170 (quoting Oregon v. Elstad, 470 U.S. 298, 305 (1985)).

¹²³ Id. at 170-71. The Court seemed particularly skeptical of the medical profession in this area.

¹²⁴ 361 U.S. 199(1960).

¹²⁵ Id. at 202-03.

¹²⁶ 372 U.S. 293 (1963).

¹²⁷ 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.

¹²⁸ Note, Colorado v. Connelly: The “Involuntary” Reduction in Federal Due Process, 14 WEST. ST. L. REV. 551 (1987).

¹²⁹ Blackburn, 361 U.S. at 207.

¹³⁰ See Colorado v. Connelly, 479 U.S. 157, 165 (1986).

¹³¹ Miranda v. Arizona, 384 U.S. 436, 444 (1966).

¹³² 475 U.S. 412, 421 (1986).

¹³³ id.

¹³⁴ “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).

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.

¹³⁵ Patterson v. Illinois, 108 S. Ct. 2389 (1988).

¹³⁶ 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).

¹³⁷ “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.

¹³⁸ 304 U.S. 458 (1938).

¹³⁹ Id. at 464.

¹⁴⁰ Id.

¹⁴¹ Miranda set a high burden of proof upon the prosecution to overcome this presumption. Miranda v. Arizona, 384 U.S. 436, 475 (1966).

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.

¹⁴² 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).

¹⁴³ Miranda, 384 U.S. at 467-68.

¹⁴⁴ 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.

¹⁴⁵ See Note, The Supreme Court Limits Criminal Defendants’ Constitutional Protections in Confession Cases: Colorado v. Connelly, 37 DE PAUL L. REV. 259 (1988).

¹⁴⁶ 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.

¹⁴⁷ Moran v. Burbine, 475 U.S. 412, 421 (1986).

¹⁴⁸ Ellis & Luckasson, supra note 10, at 423.

¹⁴⁹ Id. at 424.

¹⁵⁰ Id. at 427.

¹⁵¹ Id. .

¹⁵² See supra note 109.

¹⁵³ 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.

¹⁵⁴ Connelly, 479 U.S. at 160-61.

¹⁵⁵ See Rhode Island v. Innis, 446 U.S. 291, 302 n.8 (1980), cert, denied, 456 U.S. 942 (1982).

Innis, 446 U.S. at 302 n.8.

¹⁵⁶ Ellis & Luckasson, supra note 10, at 449-50. A mentally retarded individual will often have difficulty signing his or her name.

¹⁵⁷ 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:

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.

¹⁵⁸ 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 truefalse scale to differentiate actual schizophrenics from those simulating schizophrenic systems).

¹⁵⁹ See supra notes 41, 45, 124-27 and accompanying text.

¹⁶⁰ Ellis & Luckasson, supra note 10, at 446.

¹⁶¹ Id.

¹⁶² Telephone interview with George Niemann, Ph.D., President and Chief Executive Officer of the Bancroft School, Haddonfield, N.J. (Nov. 6, 1987).

¹⁶³ See Colorado v. Spring, 497 U.S. 564, 569 (1987).

¹⁶⁴ Miranda v. Arizona, 384 U.S. 436, 448 (1966).

¹⁶⁵ Colorado v. Connelly, 479 U.S. 157, 165 (1986).

¹⁶⁶ F o r a n 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.

¹⁶⁷ 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)).

¹⁶⁸ 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.

¹⁶⁹ 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.

¹⁷⁰ Connelly, 479 U.S. at 161.

¹⁷¹ 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.

¹⁷² Mental retardation develops before the age of eighteen years, with the majority of cases stemming from birth.

¹⁷³ Telephone interview with Elizabeth M. Boggs, Ph.D., Consultant, Hampton, N.J. (Nov. 12, 1987).

¹⁷⁴ 297 U.S. 278(1936).

¹⁷⁵ Colorado v. Connelly, 479 U.S. 157, 163 (1966)(quoting Brown, 297 U.S. at 286).

¹⁷⁶ See Paulsrud, The Least Restrictive Alternative: A Theory of Justice for the Mentally Retarded, 10 UNIV. ARK. LITTLE ROCK LJ. 465 (1987-88).

¹⁷⁷ 477 U.S. 399 (1986).

¹⁷⁸ 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).

¹⁷⁹ Ford, 477 U.S. at 403.

¹⁸⁰ Id. at 410.

¹⁸¹ Id. at 406 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

¹⁸² Ford, 477 U.S. at 410.

¹⁸³ 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.

¹⁸⁴ Ford, 477 U.S. at 422

¹⁸⁵ A.B.A. STANDARDS FOR CRIMINAL JUSTICE § 7-5-6 (Aug. 12, 1987).

¹⁸⁶ See Ford, AT! U.S. at 409-10.

¹⁸⁷ Cf. Oregon v. Elstad, 470 U.S. 298, 308 (1985) (discussing Michigan v. Tucker, 417 U.S. 433 (1974)).

¹⁸⁸ Smith v. Kemp, 664 F. Supp. 500, 507 (M.D. Ga. 1987), appeal dismissed, 849 F.2d 481 (1 lth Cir.), aff'd in part, rev'd in part, 855 F.2d 712 (1988).

¹⁸⁹ 108 S. Ct. 2389 (1988).

¹⁹⁰ Id.. at 2392.

¹⁹¹ Id.

¹⁹² id.

¹⁹³ Id. at 2392-93.

¹⁹⁴ Id. at 2393.

¹⁹⁵ Id.

¹⁹⁶ Id. at 2394.

¹⁹⁷ Id. at 2393.

¹⁹⁸ Id.

¹⁹⁹ Id. at 2397.

²⁰⁰ Id. at 2393.

²⁰¹ Id. at 2394.

²⁰² Id. at 2395 (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938); Moran v. Burbine. 475 U.S. 412, 421 (1986)).

²⁰³ Id. at 2398.

²⁰⁴ Id. at 2394 & n.4.

²⁰⁵ Id. at 2395.

²⁰⁶ Id. at 2397.

²⁰⁷ Id. at 2394 n.4.

²⁰⁸ Id

²⁰⁹ Id. at 2395.

²¹⁰ Id

²¹¹ Id. at 2396.

²¹² Id. at 2395.

²¹³ Id.

²¹⁴ Id.

²¹⁵ Id. at 2395-96.

²¹⁶ Id. at 2396-97.

²¹⁷ Id.

²¹⁸ Id. at 2394. For a definition of indictment, see supra note 61.

²¹⁹ Patterson, 108 S. Ct. at 2394;** Edwards v. Arizona, 451 U.S. 477, reh'gdenied, 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).

²²⁰ Patterson, 108 S. Ct. at 2397.

²²¹ Id. at 2397-98.

²²² id. at 2394.

²²³ 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.

²²⁴ Patterson, 108 S. Ct. at 2398.

²²⁵ Id. (quoting United States v. Ash, 413 U.S. 300, 313-20 (1973)).

²²⁶ Id. at 2398.

²²⁷ Miranda v. Arizona, 384 U.S. 436, 444 (1966).

²²⁸ Patterson, 108 S. Ct. at 2394 n.4.

²²⁹ See supra notes 160-63 and accompanying text.

²³⁰ 664 F. Supp. 500, 505 (M.D. Ga. 1987).

²³¹ 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.

²³² Patterson, 108 S. Ct. at 2398.

²³³ For a summary of this case, see supra note 219.

²³⁴ POLICE TRAINING KEY 353, supra note 5, at 5.

²³⁵ Id.

²³⁶ 664 F. Supp. at 507.