Miranda Warnings and Non-English Speakers
by: Rjohnson • January 18, 2011 • no comments
At the motion-to-suppress hearing, the police officer testifies:
"I read the defendant Miranda warnings, and I asked if he understood them. He said yes. I asked if he wanted to waive his rights and speak to me. He said yes. I asked if he had broken into the house and stolen the purse inside, and he said yes."
Is that sufficient to show a valid Miranda waiver?
Suppose that the defendant has dark skin, hair, and eyes and speaks with a heavy Spanish accent. Is it still enough?
Would an immigration hold or Mexican driver's license make a difference? What if the defendant had blonde hair and blue eyes instead?
I have no idea who has what burden to show the defendant's English proficiency in a Miranda or consent-to-search context. I can't imagine that a judge would hold that the state's burden varies based on the defendant's apparent ethnicity. But the hypothetical above is certainly not enough to show English proficiency if there is any question about it, or if there is any related burden of proof to carry.
State v. Vu 307 Or 419, 770 P2d 577 (1989) briefly suggests, with no analysis, that the defendant has some sort of burden of proof. "[D]efendant offers no basis for the claim that the statement was involuntary other than simply claiming cultural differences and lack of English language skills." Id. at 425. But usually the state has the burden to prove a valid Miranda waiver and voluntariness. Why would one specific defense argument (a language barrier precluded a valid waiver) be an exception to that rule?
By contrast, State v. Lunacolorado, 238 Or App 691, 243 P3d 125 (2010) suggests that the trial court must make an affirmative factual finding about English proficiency. That makes more sense, although it's slightly inconsistent with the suggestion in Vu that the defendant has to offer evidence before the state bears a burden. How could an evaluator tell the difference between non-native English speakers who were unusually savvy, unusually stupid, or just completely unable to speak English? How could a judge make a finding, if the defendant said little to the police and refused to say anything at all afterward?
Usually English proficiency is obvious from the record. If it is not (for example if the defendant uses only very simple words and gestures) it is worth arguing that the state has the burden to show English proficiency and hasn't carried that burden. If that is not the rule, what is?
Rankin Johnson IV is a Portland criminal defense attorney, handling primarily appeals, post-conviction relief, and federal habeas corpus. www.briefwright.com
