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Your Miranda Rights: Be sure you are not a woman or a minority next time you are interrogated
A Sociolinguistic and Legal Analysis
"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to be speak to an attorney, and to have an attorney present during any questioning. If you cannot afford a lawyer, one will be provided for you at government expense."
Even though we have heard it before – on television, in movies – most of us have not experienced Miranda first hand. Miranda is the prescribed set of warnings police officers must recite to suspects who are being arrested. The warnings explain the suspects’ Fifth Amendment rights: to remain silent (right against self-incrimination) and to have an attorney. While Miranda’s guarantees are straightforward, invoking the rights may not be. Remaining silent (simply not talking), or saying I choose to remain silent, are both valid invocations of the Fifth Amendment right against self-incrimination. The question at hand regards invocations to the right to counsel. Due to the decision in Davis v. United States (1994) invocations to counsel must be “direct and unequivocal,” and this requirement creates problems for certain segments of the United States population: those who speak the register (type of language variation) of the powerless – specifically women and ethnic minorities (Ainsworth, 1993; Levenberg, 1995).
Is a legal demand requiring a direct and unequivocal assertion to the right to counsel biased against those who speak powerless language (Ainsworth, 1993)? The important issue is as follows: if women are less likely to invoke their right to counsel due to their sociolinguistic differences, then the Supreme Court decisions and the laws – intentionally or not – are biased against women (I am focusing on women but ethnic minorities and others are effected as well). Hence the decisions and current procedures call for examination and change such that men, women, minorities, people of different socioeconomic classes, those with different levels of education, and those with language barriers, will all be protected as equally as possible under the laws and Supreme Court decisions.
The Sociolinguistics of Women
In 1975, Robin Lakoff “added gender to the list of social variables which influence language” (Conley & O’Barr 1982, 63). This addition was a major break in the thinking about language differences at the time (Conley & O’Barr, 1998). Lakoff argued that women and men differ in how they speak. In her book, “Language and Woman’s Place”, she explained the significant ways in which woman’s speech patterns differ from men’s. Women speak in (what Lakoff termed) “women’s language,” generally expressing uncertainty and subordination (Conley and O’Barr, 1998).
Lakoff believed that women’s speech patterns are a self-perpetuating cycle which
“both reflects and reinforces their subordinate position in society” (Conley & O’Barr
1998, 64). This hypothesis lead to a great deal of research by other socio and anthropological linguists. Lakoff’s thesis was generally confirmed and by the mid-70s people who had never given this idea any thought accepted the fact that there are gender-based differences in speech (O’Barr, 1982; Ainsworth, 1993; Conley & O’Barr, 1998).
Lakoff discussed many features of woman’s language and different researchers have summarized these features (as she did not provide a firm listing of the major features). The five major features of woman’s language are: (1) use of hedges, (2) use of tag questions, (3) use of modal verbs, (4) avoidance of imperatives and the use of indirect interrogatives as a substitute for the imperative, and (5) rising intonation used in declarative statements (Ainsworth, 1993).
Hedges
Tag Questions
Modal Verb Usage
Absence of imperatives
Rising Intontation
Powerless Language
Courtroom research regarding witnesses revealed that women who did not speak powerless language were typically those who were educated or trained, so-called “expert” witnesses. Besides being well educated, they were professionals with middle-class backgrounds. They had what O’Barr called “unusually high social status”. Conversely, men in the study who did speak powerless language were primarily poor and uneducated. They held lower status jobs or were unemployed. Previous courtroom experience also effected the results such that those who frequently testified in court typically did not use powerless language. Ultimately though, the majority of people who spoke powerless language were women (O’Barr, 1982; O’Barr & Conley, 1998).
Gender Issues in the US Legal System
Every conversation has at least two roles. While suspects are speaking, the officer is in the role of the listener. A disproportionate percentage of officers are men – which will significantly add to the potential communication problems if the suspect is a woman using powerless language. Male police officers occupy positions of power, not only because they are men in a patriarchal society, but because of their actual position as officers of the law. They are unlikely to use powerless language, which will color how they hear and interpret what people say who do use it (Ainsworth, 1993).
Research in cognitive psychology has shown that people interpret what they hear based upon how they express themselves. For example, rather than asking “What does she mean by that?”, we ask “What would I mean if I said that?” This interpretation can obviously lead to miscommunication, particularly between people who speak with different registers. Exacerbating the problem is the facts that police interrogations are fraught with anxiety and that miscommunications become more likely under stressful conditions (Ainsworth, 1993). Chief Justice Warren, giving the majority Miranda decision, described the stressful situation which suspects face in interrogation:
Besides the immediate problems that miscommunication in police interrogation can cause, there can be significant lingering effects. If a suspect feels her rights were violated, her lawyer(s) can ask for a hearing to suppress the statements which she believes were made in violation of her rights. If she is convicted, she can appeal on the grounds that her Fifth Amendment rights were violated. In court both the suspect and the officer testify as to their interpretation of the events which occurred during the interrogation. Psychological research has shown that our memories of a conversation are colored by our interpretations. We do not remember what was said exactly, but rather what we inferred from what was said. This issue can have serious effects on the validity of court cases. Officers are usually believed over suspects; in fact, a defendant is almost sure to lose when there is a conflict between an officer and a suspect. The officer’s interpretation of the statements the suspect made during interrogation can be crucial to the suspects’ chances of having her rights restored (Ainsworth, 1993).
Miranda v. Arizona: The Right to Counsel
Miranda is based on the Fifth Amendment and requires the police to not only inform suspects of their constitutional rights to remain silent and to a lawyer – even when they cannot themselves afford one (what the Court termed “indigent”) – but also requires that police retain a waiver of those rights before the interrogation (Ainsworth 1993; Kamisar et al, 1999). The Fifth Amendment right to counsel during interrogation is not automatic, as is the Sixth Amendment right to counsel in criminal prosecution. In other words, a suspect must invoke their right to counsel in interrogation (Ainsworth 1993). The crucial aspect of this will become, how do we define an invocation?
Interpretations of Miranda: Three Different Standards
Threshold-of-Clarity Standard
Per Se Standard
The per se rule: “gives legal effect to a much broader spectrum of speech patterns than does the threshold-of-clarity standard” (Ainsworth 1993, 307). In the leading case regarding the per se standard, Maglio v. Jago, expressed the belief that the Miranda decision suggested the per se rule. The Court (in Maglio) held if police do not stop questioning once a suspect makes an ambiguous request for an attorney they violate the suspect’s Fifth Amendment right to counsel (Levenberg 1995).
Clarification Standard
The clarification rule seems to be a good compromise between the other two standards. It appears fair to officers whose goal it is to interrogate suspects; it also appears to respect the Constitutional rights of suspects. In theory this may be the case, but once put into practice there are many potential problems. Officers may use the “clarification” phase, where they try to determine if a suspect was invoking her right to counsel, to dissuade the suspect from invoking said right. A large number of appeals suggest that the officers did just that. Rather than simply resolving whether the suspect was asking for counsel or not, officers have used techniques so the suspect will continue to speak with them, sans counsel (Ainsworth, 1993).
Davis v. United States: One Standard
In Davis v. United States (1994), a man was charged with the beating death of a fellow sailor. In the course of the interrogation Davis said “Maybe I should talk to a lawyer.” The officer then questioned him to conclude if he really wanted to speak with counsel. After clarifying questions Davis said, “No, I don’t want a lawyer.” The interrogation then resumed and subsequently Davis made self-incriminating statements (Crawford, 1995).
Davis attempted to suppress his incriminating statements on the grounds he had invoked his right to counsel when he said, “Maybe I should talk to a lawyer.” He claimed when officers continued to question him, they violated his Constitutional rights. The government maintained that Davis’ remark was, at best, an equivocal invocation. They believed that the officers were justified in asking clarifying questions to be sure that Davis wanted counsel. The court denied Davis’ motion to suppress and Davis was eventually convicted of murder (Crawford, 1995).
On review, the Supreme Court disagreed with the notion that any mention of a lawyer is an invocation to the right to counsel. Therefore, further questioning after an equivocal request for counsel is lawful and acceptable. The Court ruled that ambiguous requests do not constitute unequivocal invocation and did not agree that police officers should be required to seek interpretation of the request before they continue with the interrogation (Crawford, 1995).
Instead, Justice Sandra Day O’Connor, giving the U.S. Supreme Court majority opinion, stated that after suspects knowingly and voluntarily waive their Miranda rights, law enforcement officers may continue questioning them until they unequivocally invoke their right to an attorney. She refused to require officers to ask clarifying questions. Therefore when Davis said, “Maybe I should talk to a lawyer” the officers could, legally, ignore this and continue asking questions until he said something closer to, “I want to see my attorney right now” (in this case the officers actually did ask clarifying question but the Supreme Court decided that henceforth that would not be legally necessary). After this decision, if a suspect does not unequivocally request counsel, law enforcement officers need not stop questioning her (Levenberg, 1995; Crawford, 1995).
According to the Supreme Court, to invoke Miranda after Davis, a suspect must “at a minimum make a statement that can be construed to be an expression of a desire for the assistance of an attorney” (Davis v. United States 1994). The invocation must be clear enough for a reasonable police officer, under the circumstances, to interpret the statement as a request for an attorney. The Supreme Court would not require that police stop questioning a suspect when she makes an ambiguous or equivocal reference to counsel (Levenberg, 1995).
Justice O’Connor noted that the Court in Miranda stated that “if a suspect is ‘indecisive in his request for counsel,’ the officers need not always cease questioning” (Miranda v. Arizona 1966; Davis v. United States 1994). She did, however, recognize that a rule requiring such a clear assertion to the right to counsel might disadvantage some suspects who – because of fear, intimidation, lack of linguistic skills, or a variety of other reasons – may not clearly articulate their right although they actually want to have
a lawyer present. She believed that Miranda warnings were sufficient to “dispel
whatever coercion is inherent in the interrogation process” though (Davis v. United States 1994). Justice O’Connor felt that a rule requiring officers to cease questioning if a suspect makes an ambiguous statement would force officers to engage in “guesswork” (Davis v. United States 1994; Levenberg, 1995).
In a concurring opinion, Justice Souter agreed that Davis’ remarks should be
admitted but felt police officers should be required to stop and clarify. He did not agree that reading Miranda would ease the elementally coercive atmosphere of police interrogations. He essentially supported the clarification approach. He feared that the threshold-of-clarity approach would not protect the inarticulate or intimidated suspect. “According to Justice Souter, suspects who are ‘thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures’ would seem an odd group to single out for the Court’s demand of heightened linguistic care” (Ainsworth, 1993; Davis v. United States 1994).
Conclusion
Through the years, decisions by the Supreme Court have hurt those who speak powerless language more and more. Before 1994 suspects may have been lucky enough to be in a jurisdiction where any mention of an attorney was taken seriously and a lawyer was supplied. The Supreme Court decision in Davis v. United States (1994), however, changed this such that every jurisdiction, every police station, is required to utilize the threshold-of-clarity standard which requires suspects ask for an attorney directly and unequivocally.
In Davis v. United States (1994), Justice O’Connor supported the threshold-of-clarity approach as she suggested – but wouldn’t require – that officers employ the clarification standard. Justice Souter explicitly supported a clarification approach. Both expressed that people who were afraid, intimidated, or lack “linguistic skills” may not express their desire for an attorney appropriately. However, Justice O’Connor said that simply reading Miranda would make this issue disappear while Justice Souter believed it was inappropriate to expect a particular invocation from this group.
Ultimately though, both the threshold-of-clarity and the clarification approach disadvantage those who speak powerless language. The way these individuals speak makes it unlikely that they will unequivocally invoke their right to counsel. This tendency will not change when they are questioned during a “clarification phase” – particularly if the officer(s) is using this part of the interrogation to “dissuade” the suspect from invoking their right to counsel. The only standard described that will offer complete protection to those who speak powerless language is the per se standard. To protect the rights of those who are less powerful in society any reference to counsel should be taken seriously and should be accepted as an invocation. Alternatively, all suspects could simply be supplied a lawyer automatically (similar to the 6th Amendment right to counsel). Potentially this procedure would strain law enforcement. However, it would also significantly reduce appeals based on violation of the 5th Amendment right to counsel. The ostensible role of government is to recognize the rights of the people and the goal of the state’s police force is to “serve” and “protect”. Such measures as automatic counsel during interrogation seem a natural, logical extension of these goals. As a result, suspects – regardless of gender, race, socioeconomic class, educational level, or sociolinguistics – will all be given fair and equal access to an attorney during interrogation.
Footnote:
References
Ainsworth, J.E. (1993). In a different register: The pragmatics of powerlessness in
police interrogation. Yale Law Journal November, 103(2), 259-322.
Cameron, D. (1990). The feminist critique of language. New York: Routledge.
Conley, J.M. & O’Barr, W.M. (1998). Just words: Law, language, and power. Chicago:
University of Chicago Press.
Crawford, K. (1995). Invoking the Miranda right to counsel: The defendant’s burden.
FBI Law Enforcement Bulletin, 64(3), 27-32.
Holmes, J. (1992). An introduction of sociolinguistics. New York: Longman Publishing.
Kasimar. Y., LaFave, W.R., Israel, J.H. & King, N.J. (1999). Basic criminal procedures:
Cases, comments, and questions. St. Paul, Minn.: West Groups Publishing.
Lakoff, R.T. (1975). Language and woman’s place. New York: Harper & Row.
Levenberg, T.O. (1995). Fifth amendment – responding to ambiguous requests for
counsel during custodial interrogations. Journal of Criminal Law and
Criminology, 85(4), 962-988.
O’Barr, W.M. (1982). Linguistic evidence: Language, power, and strategy in the
courtroom. San Diego, CA: Academic Press Limited.
By: Cary Hopkins Eyles
Sociolinguistics is the study of the relationship between language and society. The study includes examining why we speak differently in different social contexts, what the social functions of language are, and – most crucial for this research – the way people’s roles in society can effect how they speak (Holmes, 1992). Sociolinguists have long been aware that people speak differently depending on the social dimensions of class, race/ethnicity, & age. These factors have been accepted as effecting our speech for quite some time (Conley & O’Barr, 1998).
Hedges are verbal expressions which undermine the emphasis of a statement or make it less precise. Examples include “kind of,” “sort of,” and “about” being used to soften an assertion. Statements which begin with the hedges such as “I think,” “I guess,” or “I suppose” are also used to make statements sound less assertive. Lakoff argued that women use hedges more than men do because they fear sounding too masculine or assertive (O’Barr, 1982; Cameron, 1990; Ainsworth, 1993; Conley & O’Barr, 1998).
Tag questions are used when the speaker is looking for agreement or reassurance, or when they are trying to avoid confrontation. Two examples are shown below (the second of each set includes a tag question):
(1) “Tampa is a large city.”
“Tampa is a large city, isn’t it?”
(2) “I should see a lawyer.”
“I should see a lawyer, shouldn’t I?”
Tag questions can be used to make a statement more forceful or emphatic, but in women’s language they express a lack of full confidence (O’Barr, 1982; Cameron, 1990; Ainsworth, 1993; Conley & O’Barr, 1998).
Like lexical hedges, modal verb usage makes a statement less emphatic. Modal verbs include: “may,” “might,” “could,” “ought,” “ should,” and “must.” Again, an example is appropriate. The first statement expresses certainty and confidence where the second, which contains a modal verb, lacks assertiveness:
(1) This is the right house.
(2) This may be the right house (Ainsworth, 1993).
Imperatives are demanding statements. But those speaking women’s language change imperatives to questions, as shown in the example below:
(1) Tell me the time.
(2) Could you tell me the time?
Phrasing the demand as a question rather than as an imperative makes it sound more polite and less assertive. Speakers can soften these demands further by adding other polite qualifiers. For example, “If it isn’t too much trouble, could you tell me the time?” (Ainsworth, 1993).
Usually English-speaking persons use rising intonation to signal a question. But rising intonation is used differently in women’s language. When a speaker is not actually asking a question but uses a rising intonation, she expresses uncertainty or doubt. Rising intonation projects a desire for approval. Changes in intonation are also associated with emotion and women in the United States are traditionally seen as more emotional than men (O’Barr, 1982; Ainsworth, 1993; Conley & O’Barr, 1998).
All the characteristics of “women’s language” express uncertainty or tentativeness. The tendency for women to use powerless language is related to the greater tendency for women to occupy relatively powerless, or at least less powerful, positions in the United Stated. Men generally occupy more powerful positions than women and as such use a register which: (a) is seen as the “norm” in our society, and (b) is more confident and assertive. People of lower social status are socialized to speak a more polite and less assertive language. Due to this phenomenon, “women’s language” subsequently became “powerless language.” This form of language is not only adopted by women, but also by ethnic minorities and by men who are less powerful, uneducated, and/or poor (O’Barr, 1982; Ainsworth, 1993; Conley & O’Barr, 1998).
Studies of court rooms have shown that people who use powerless language are seen as less competent and credible than those who speak in a more dominant register (O’Barr, 1982). Use of the powerless register can be detrimental to a person in interrogation and it can also hinder them in court when they try to appeal. As Conley and O’Barr (1998, 65) said of their study of speech patterns in court:
“…most women, most of the time, were speaking in a style that
the legal system devalued; men, by and large, did not suffer
this disadvantage.”
Situations in which a person feels relatively powerless intensify the tendency to use powerless language. Police interrogation heightens a suspect’s feelings of powerlessness. As part of the United States legal process, police interrogation is highly adversarial. The officer who is interrogating the suspect has control, physically and verbally, of the entire situation. The officer likely has experience in interrogations as well, where the suspect may not. The power asymmetry is such that the suspect will usually feel a sense of powerlessness that is far more severe than what they feel in daily life. Hence suspects are likely to use powerless language in police interrogation, particularly women – who may tend towards this register in everyday situations (Ainsworth, 1993).
“These tactics [those used by police officers in interrogation] are
designed to put the subject in a psychological state where his
story is but an elaboration of what the police purport to know
already – that he is guilty” (Miranda v. Arizona 1966, 694).
An example will serve to illustrate the potential problems in such situations like police interrogation. People who do not use powerless language use rising intonation only to express a question. When they hear rising intonation in a sentence, they expect a question and will interpret the statement as being equivocal or uncertain (Ainsworth, 1993). However, the speaker may simply speak powerless language and may have been attempting to be polite and non-confrontational.
The Fifth Amendment rights stated in the Miranda warning are afforded to U.S. citizens by the Constitution. In Miranda v. Arizona (1966), the Supreme Court guaranteed that all suspects would be informed of these rights. The Court reviewed four (4) cases involving suspects who did not have counsel during their custodial police interrogations. The Judges decided that police would henceforth be required to read suspects a statement of their rights – to protect both the suspect and the police (Kamisar, LaFave, Israel, & King, 1999). Interrogation of suspects generally involves only the suspect and police officers and, without witnesses, there is great potential for coercion (Ainsworth 1993). Chief Justice Warren discussed the fact that there had been many cases of physical abuse towards suspects by police in interrogation and the “historical roots of the privilege against self-incrimination” as crucial in the majority opinion (Ainsworth 1993; Miranda v. Arizona 1966; Kamisar et al., 1999).
The majority opinion of the Court, as delivered by Chief Justice Warren, said the following of a suspect in custody, if “…he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning” (emphasis added; Miranda v. Arizona 1966). However, the Court’s decision was interpreted differently in different jurisdictions in the United States. Three standards were created based on Miranda: the threshold-of-clarity standard, the per se invocation standard, and the clarification standard (Ainsworth, 1993; Levenberg, 1995).
According to the threshold-of-clarity standard, the invocation of the right to counsel has to be unequivocal and direct. The case most associated with this standard is People v. Kruger where a suspect said, “Maybe I ought to have an attorney” (Ainsworth, 1993). In this case, the Illinois Supreme Court ruled that the police were not required to stop questioning based on that statement. In another example, People v. Santiago, it was ruled that the suspect had not invoked his right to counsel when he said “Will you supply [a lawyer] now so that I may ask him should I continue with this interview at this moment?” (Ainsworth 1993, 304). As interpreted by sociolinguistic Jane Ainsworth (1993, 303):
“Courts have held that suspects who seek confirmation that they are
entitled to counsel, who ask their interrogators how they can get a
lawyer, or who ask the police whether they need a lawyer, have failed
to invoke their right to counsel under the threshold-of-clarity standard
because they chose the wrong syntactic form.”
The threshold-of-clarity standard does not require that police pay attention to statements which suggest a desire to see an attorney (Ainsworth 1993). As implied in the name of this standard, the invocation must reach certain level of clarity before it is to be considered a legitimate invocation (Levenberg 1995).
In the per se rule, we see a fairly literal reading of the Court’s decision. In this standard, both ambiguous and direct requests are seen as rightful claims to the right to counsel (Ainsworth 1993). The jurisdictions which use a per se rule use the standard discussed in Miranda which says that an invocation to the right to counsel can be made “in any manner” (Ainsworth, 1993; Miranda v. Arizona 1966). After a suspect makes any reference to a desire for counsel, interrogation must stop until an attorney is supplied (Levenberg 1995).
The final standard is the clarification rule. Under this standard, if a request is not direct then officers must determine what is being asked. Interrogation must stop but only until the officer(s) can clarify if the suspect was attempting to invoke their Fifth Amendment right to counsel or not. If the suspect was not, interrogation can continue. If she was making such an invocation, the officers must stop interrogation until an attorney has been provided (Ainsworth 1993; Levenberg 1995).
Until 1994, these three standards were used in different jurisdictions. But in Davis v. United States the United States Supreme Court held that the statement, “Maybe I should talk to a lawyer,” was not an unequivocal request to speak with a lawyer (Levenberg, 1995; Ainsworth, 1993). In deciding this, they gave legal support for the threshold-of-clarity standard.
Women and others who occupy less powerful social positions in the United States tend to speak “powerless language”. They are socialized to speak such a language to avoid confrontation and avoid being seen as assertive. However, since a more dominant register is the norm in the United States, people who speak powerless language are at a disadvantage in society – particularly in highly adverse situations, such as police interrogation.
This work is supplemental to Janet E. Ainsworth’s “In a Different Register: The Pragmatics of Powerlessness in Police Interrogation” (1993). A significant change has occurred legally in terms of police interrogation procedures since that time (specifically due to Davis v. United States 1994) so it seemed right to re-visit the issue.