Chapter Nine continued...
The conceptual and linguistic difficulties posed by the Miranda requirement cannot be overcome by a direct translation into sign language. Sign language uses everyday rather than formal concepts. Critical concepts that may be unfamiliar to many deaf people include "right" and "Constitution." Some deaf people would not understand the term "lawyer" in the full sense of understanding a lawyer's function.
There are not many signs to express legal terms. The sign for "Constitution" is newly created; most American Sign Language users would be unfamiliar with either the sign or the English word, let alone the concept behind it.
Fingerspelling important legal terms will not generally increase understanding, especially if the accused deaf person has a low reading level.40 To be understood, the terms and their meanings must be carefully explained in clear concepts. A qualified interpreter is fundamental at this point. Acting out and other demonstrative approaches by a qualified interpreter might allow deaf defendants to understand the rights familiar to many hearing defendants.
Examples of the Problem
One case illustrates the problem of communicating the Miranda advice of rights to a deaf defendant. David Barker, a deaf man with a reading comprehension level of grade 2.8, was charged with murder. The charges were dropped, but when Barker was in custody for unrelated charges a year later, police questioned him extensively about the murder by means of written notes. They did so without providing him either a sign language interpreter or advice of counsel. After several hours of questioning, Barker signed the Miranda waiver of rights and then a confession.
When Barker was interrogated a month later with an interpreter, he showed confusion in answering questions. Asked if he had understood the Miranda advice of rights, he replied in sign language, "a little bit." He also referred to promises allegedly made by the police guaranteeing hospitalization.
The court suppressed the first confession as being involuntary and suppressed a second confession on the grounds that the original promise of hospitalization continued to influence him, making the second confession involuntary. The court wrote:
There was additionally offered testimony by experts in the field of sign language for the deaf that the expression "Constitutional rights," being an abstract idea, is extremely difficult to convey to the deaf, especially, as in this case, when the educational level of the individual is so curtailed. There was testimony that the warning, "Do you understand that you have the right to have an attorney present at all times during the questioning?," may well have been signed, and understood as "Do you understand it is all right to have an attorney present?," which obviously is far from the actual portent of the warning."