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Bar Journal - March 1, 2002

Readability and Comprehension of the 'NH Acknowledgment and Waiver of Rights: Felony'

By:

INTRODUCTION

It has been estimated that 90% of all criminal cases are resolved through a guilty plea rather than through a verdict reached after a trial (Whitebread and Slobogin, 1993). For this reason, it is important that criminal defendants be competent to acknowledge and waive their rights as part of making a guilty plea. In order to establish this competence, criminal defendants accused of felonies in New Hampshire are required to review the "New Hampshire Acknowledgment and Waiver of Rights: Felony" form with their attorneys and demonstrate that they understand the constitutional rights and procedures that they give up by pleading guilty.

However, no studies have systematically examined how well criminal defendants are able to read and comprehend this form or grasp the underlying concepts involved in waiving the rights associated with standing trial. The purpose of this article is to examine the readability of the "New Hampshire Acknowledgment and Waiver of Rights: Felony" form and to explore psychological and legal issues associated with competence to plead guilty.

Competence to plead guilty must be considered in the larger context of competence to stand trial. The idea that a defendant must be competent to stand trial is longstanding in our legal system. It is believed that the concept of competence to stand trial dates back to seventeenth century English common law. In their review of the origins of the concept of competence in criminal proceedings, Melton et al. (1987) point out that in English courts defendants were required to plead to the charge before the trial. In some cases defendants stood mute and would not make the required plea. When this occurred, the court would attempt to determine whether the defendant was "mute of malice" or "mute by visitation of God." If it was determined that the defendantís silence was the product of malice, a plea was extracted through the use of torture. If the defendant was determined to be mute by visitation of God, he or she was spared this treatment. While the term "mute by visitation of God" was originally applied exclusively to those who were deaf and unable to speak, eventually the term was extended to include those who were deemed lunatics. According to Melton et al., the idea of competence to stand trial also developed out of a general understanding that it was unfair and contrary to the broader interests of society and justice to try a defendant who did not have sufficient mental ability to understand and participate in the proceedings.

CASE LAW

Early American law followed English common law closely in recognizing that some individuals were incompetent to stand trial. As early as 1835, a man who sought to assassinate President Andrew Jackson was found to be unfit to stand trial. In Dusky v. United States (1960) the U.S. Supreme Court put forth a definition of competence to stand trial that is still followed in federal courts and most state jurisdictions. The test requires that the defendant have "sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and a rational as well as factual understanding of proceedings against him." This general test has two components: the defendantís capacity to understand the criminal process, including the roles of the participants, and the defendantís ability to participate in the trial process, primarily by cooperating with his or her attorney in preparing a defense. This test is a measure of present ability, in that it requires inquiry into the defendantís mental state at the time of standing trial rather than a retrospective analysis such as that required in an assessment of criminal responsibility. In addition, the Dusky standard focuses on the defendantís capacity, rather than willingness, to understand the proceedings and participate meaningfully. In New Hampshire, Champagne v. State of New Hamp shire (1985) follows Dusky very closely and requires the same two-pronged test requiring the capacity to cooperate with counsel and a rational and factual grasp of the issues involved in standing trial.

The issue of competency to plead guilty has much in common with competency to stand trial. The defendant who pleads guilty must understand the nature of the charge to which he is pleading, the associated penalties, and the rights which are surrendered by submitting a plea of guilty. These rights are laid out in the "New Hampshire Acknowledgment and Waiver of Rights" as follows:

My right to a speedy and public trial.

My right to a trial by jury.

My right to see, hear and question all witnesses. This gives me the opportunity and right to confront my accusers and cross examine them myself or through my attorney.

My right to present evidence and call witnesses in my favor and testify on my own behalf.

My right to remain silent if I choose, which is my right against self-incrimination, and the jury can draw no inference of guilt from my silence.

My right to have the Judge order into court all evidence and witnesses in my favor.

My right to have my lawyer continue to defend me, and to present all defenses that I may have.

My right not to be convicted except by proof beyond a reasonable doubt with respect to all elements of the charge, which have been explained to me by my attorney.

My right to have excluded from evidence any confessions or other evidence obtained in violation of my constitutional rights.

My right to appeal, if convicted.

One issue which has been raised in reference to competency to plead guilty is whether the decision to plead guilty requires a higher level of understanding and competence than competence to stand trial. In Seiling v. Eyman (1973) the Ninth Circuit ruled that competency to plead requires a higher level of understanding, since the defendant must not only meet the competency standards laid out in Dusky but also must have a factual and rational comprehension of the constitutional rights that are waived by pleading guilty. According to Seiling, since "the degree of competency required to waive a constitutional right is that degree which enables him (the defendant) to make decisions of very serious import, the degree of competency necessary to make a guilty plea valid must be higher than that required for competency to stand trial."

However, in the case of Godinez v. Moran (1993), the U.S. Supreme Court ruled that the standard of competency to plead guilty or waive the right to counsel was no different than the general competency standard for standing trial. Justice Thomas wrote for the majority in the case that "all criminal defendantsónot merely those who plead guiltyómay be required to make important decisions once criminal proceedings have been initiated. And while the decision to plead guilty is undeniably a profound one, it is no more complicated than the sum total of decisions a defendant may be called upon to make during the course of trial."

The Godinez decision has important implications for the forensic psychologist or psychiatrist evaluating defendants for competency. It suggests that those evaluating competency to stand trial should incorporate in their assessments questions and techniques that address the knowledge and skills which the defendant will need in order to participate meaningfully in a variety of decisions which he or she may be called on to make the in the course of a trial. As a result, it has become increasingly common for competency evaluators to utilize instruments and interviews that address the defendantís understanding of the implications of making a waiver of rights in deciding to plead guilty.

The issues raised in Godinez have not been raised before the New Hampshire Supreme Court. Superior and District Court justices have ruled in some cases that defendants who were evaluated as being just above the threshold of factual and rational understanding, as delineated by Champagne, were incompetent on the basis of their difficulty with the more complex issues involved in making a knowing and voluntary guilty plea. However, at present this appears to be a discretionary decision based on a justiceís personal definition of competency to stand trial.

READABILITY

In recent years, there have been an increasing number of cases in district and superior courts in which the issue of competency to waive rights for the purpose of pleading guilty and comprehension of the "New Hampshire Acknowledgment and Waiver of Rights: Felony" form have been relevant. One issue of concern is the readability of this document, particularly as it pertains to defendants with cognitive limitations. As a result of these concerns, the author performed a readability analysis on the Waiver to determine the skills and cognitive abilities required for meaningful comprehension.

The term "readability" refers to factors affecting the ease of reading and understanding a particular written document. These factors include the readerís interest and motivation, the legibility of the document, and the complexity of the words and sentences that make up the document. Of these factors, motivation is the most difficult to assess objectively. Some documents are intrinsically less interesting to read, as is the case with highly technical material. Motivation is also mediated by the reader's expectations regarding the positive and negative consequences associated with understanding the material. For example, a reader might be motivated to pay more attention and try harder to understand a document in order to prepare for a test that would advance a specific goal. On the other hand, factors such as anxiety, apathy, passivity and learned helplessness might reduce motivation.

In the case of the Waiver, it might be postulated that in some cases the high stakes involved in standing trial for a felony might increase motivation and "concentrate the mind." On the other hand, anxiety about the consequences of a negative outcome and the general stress of standing trial might interfere with concentration. There is a curvilinear relationship between levels of anxiety and performance on complex tasks. This means that, while low anxiety levels are associated with lower motivation and poorer performance on complex tasks and moderate anxiety levels are associated with improved performance, very high anxiety levels tend to depress performance. Consequently, levels of motivation and concentration in performing the task of reading and comprehending the Waiver tend to be optimal (other factors being equal) in defendants with moderate levels of anxiety.

Determining a documentís legibility is a function of a number of factors, including typeface and type size, color of paper and type, document layout, and reading conditions. There are guidelines for designing documents for maximum legibility, but this issue will not be discussed in this paper.

Most commonly, the term readability is used to describe the complexity of sentence structure and vocabulary. These factors lend themselves to objective assessment, and a variety of methods have been developed to quantify a documentís level of complexity. The results of such assessment is usually described in terms of grade level or reading age. For example, a document could be found to require a tenth grade reading level. This would mean that 50% of tenth graders who read the document would be able to comprehend it, but the other 50% would not. In addition, it must be understood that the 50% who are able to comprehend the material adequately would be reading at the limit of their ability; people generally prefer to read documents that are several years below this theoretical ceiling. Reading age is generally determined by adding five to the grade level. For example, a document with a fifth grade reading level would have a reading age of 10 years.

One of the methods that have been developed to assess readability is the question and answer technique. According to this method, students at different grade levels are given a document to read and are later questioned about the material. This allows for a rough estimate of the documentís readability. A second technique is the Cloze technique (Graham, 1978; Mobley, 1986). In this method, words are left out of the documentís sentences on a systematic basis, such as every fifth or eighth word, and the reader is required to try to fill in the blanks, demonstrating his or her comprehension. Another method is to compare the words that make up the document to a standard vocabulary list. The number of words not found on such a standard list is calculated and a grade level or reading age is thereby determined.

The most commonly used method of determining readability bases its assessment on the average number of words in a documentís sentences and the average number of syllables in its words. There are an enormous number of such indexes and formulas, but several have wide acceptance. One of these, the Fry readability formula (1968) assesses a documentís grade level by comparing the number of sentences and syllables in a 100 word sample to the number of

sentences and syllables in the average 100 word passage. Another method, the Flesch formula, (1948) assigns the document to be assessed a score between 0 and 100, with 0 to 30 being very complex and 91 to 100 being very easy. The score is obtained by applying the following formula, with "W" representing the number of syllables per 100 words and "S" representing the average sentence length in words:

Readability = 206.84 - 0.85W - 1.02S

The Flesch formula has been updated as the Flesch-Kincaid formula, and it determines reading level by calculating the length of the average sentence (L) and the average number of syllables per word (N). Grade level = (L x 0.39) + (N x 0.0455). The Flesch-Kincaid readability formula comes as part of a number of popular word processing programs, so that those who are interested can simply use their computers to determine the readability of a particular document. The Flesch-Kincaid formula is the official standard used by the U.S. Department of Defense in determining the readability of documents it produces.

THE FELONY WAIVER

This brings us to the New Hampshire Felony Waiver. For the purpose of this article, the readability of this document was assessed using both the Flesch and Flesch-Kincaid formulas. This was done by scanning the waiver and then importing it into WordPerfect 8, where it was analyzed using the Readability application, which utilizes the Flesch-Kincaid formula. In addition, the readability utility of the program produces a count of the number of sentences in the document, the average number of sentences per paragraph, and the average number of syllables per word. These figures were used to calculate the Flesch readability grade level manually.

The Flesch Kincaid readability grade level of the Waiver is 11.33, which translates roughly to a reading age of 16 years. This means that only 50% of 16-year-olds, reading at the limit of their ability, would understand the document adequately. The WordPerfect readability utility also provides a comparison to several well known documents to make the level of difficulty easier to put in context. The Waiver is more difficult than the 1040EZ tax form of the U.S. Internal Revenue Service, which has a 10.53 grade level readability. It is only slightly less complex than Lincolnís Gettysburg Address, which has a 12.90 grade level. The Waiver has a Flesch formula score of 53.62, which falls into the "fairly difficult" range of reading ease.

To further place the readability of the waiver into perspective, it is useful to consider the Waiver in the context of an article by Gudjonsson (1991) entitled "The ĎNotice to Detained Personsí, PACE Codes and Reading Ease." In this article, Gudjonsson analyzed the readability of documents from the United Kingdom roughly equivalent to our Miranda Rights. In addition to the Flesch readability score, he utilized a list provided by Ley (see table 1), modified with the addition of a description of style from Flesh. The table allows for an estimate of the IQ necessary for an adult to understand documents at different levels of complexity and the age of the population that would be able to understand them adequately.

Using the table below, it can be seen that the Waiver requires an IQ of greater than 104 for comprehension, and only 40% of the population can read it with adequate comprehension. IQís between 91 and 109 are considered average, with a standard error of measurement which depends on the test being used. It should be understood that these estimates of readability and the IQ level required for comprehension are approximations and are limited by a number of factors., including legibility and motivation. In addition, in the case of the Waiver and similar documents, these calculations do not factor in the conceptual complexity of the material. For example, a defendant might be able to read the words "constitutional right" but might not have an understanding of what the words mean in context. In addition, attorneys often read the Waiver to defendants and do their best to explain its meaning.

TABLE 1. INTERPRETATION OF READING EASE SCORES

Score Description of style Percentage who would understand IQ required for comprehension
0-30 Very difficult 4.5 126+
31-50 Difficult 24 111+
51-60 Fairly difficult 40 104+
61-70 Standard 75 90+
71-80 Fairly easy 80 87+
81-90 Easy 86 84+
91-100 Very easy 90 81+
Source: Gudjonsson (1991)

The degree of correspondence between the ability to read a document and the ability to comprehend it is not easy to determine. Some individuals do better with material when it is presented in written form, and others have higher comprehension when listening. However, it would be a mistake to assume that having an attorney read and explain the Waiver necessarily increases comprehension above and beyond that suggested by the readability of the document. Consequently, a preliminary conclusion which can be drawn from this analysis of readability is that a substantial portion of the defendant population is likely to have considerable difficulty in developing a factual and rational grasp of the issues raised by the waiver. This difficulty is likely to be particularly pronounced in individuals with IQs falling below the borderline range (80 and below) and individuals whose cognitive processes are compromised by severe mental illness.

There are several steps that may assist courts in determining when the comprehension of the Waiver by a defendant is likely to be problematic. First, the court and attorneys should be alert to signs of mental deficiency and mental illness in defendants. Indicators that should raise this issue include an inability on the part of the client to read or write or obvious difficulties comprehending the attorneyís explanations of issues related to the instant case. Additionally, information that the defendant has been involved in special education should trigger a preliminary inquiry into his or her ability to comprehend issues related to standing trial generally and the Waiver specifically. Arrest reports or investigations alluding to behavior suggestive of cognitive problems should also raise concerns.

Once these concerns have been raised, lawyers should explore the clientís explanation of the Waiver form. In doing so, it is important for several reasons not to use closed ended questioning. One of these is that when a question is asked that can be answered yes or no, an uncomprehending client has at least a 50% chance of obtaining a correct answer even if he or she is responding randomly. In addition, individuals with sub-average IQs frequently exhibit a characteristic known as acquiescence, wherein they tend to simply follow the lead of individuals they believe are authoritative. Consequently, when asking the defendant about the right to a speedy trial, the question "You understand that by waiving your rights and pleading guilty you are giving up the right to a speedy trial?" may very well produce a "yes" in a client who actually has no comprehension of the question. It would be better to ask what it means to have a speedy trial and follow up with a question about why it is good to have a speedy trial. This type of questioning will elicit information about the clientís factual and rational grasp of the issue. Deficiencies noted may relate to underlying deficits in comprehension or may simply relate to inexperience on the part of the defendant. The defense attorney should attempt to explain the concept in simple terms and then question the defendant again to see if he or she appears to be able to assimilate the new information. If questions still remain, a request to the court for a competency evaluation should be considered.

For clinicians, there are also steps that can be taken to assess the defendantís competency to stand trial in general while specifically exploring competency to make a plea and waive rights. Evaluations should include an IQ screening using one of the brief IQ tests available, as well as screening for reading and listening comprehension. In addition, the issue of willful malingering or underperformance should be assessed, since some defendants purposely attempt to appear incompetent in order to avoid criminal penalties. Psychometric instruments are available that assess both cognitive underperformance and malingering of psychiatric symptoms.

A new psychometric instrument, the MacArthur Competency Assessment ToolóCriminal Adjudication (1999) helps address the issues raised by the Waiver and the issue of competency to plead guilty. This instrument, developed by the MacArthur Foundation Research Network on Mental Health and the Law, is normed on a large population of competent and incompetent individuals and is one of the most effective tests available for this purpose in terms of its psychometric properties. It assesses three areas associated with standing trial: Understanding (capacity for factual understanding of the legal system in the adjudication process), Reasoning (ability to distinguish more relevant from less relevant factual information and ability to reason about legal options such as pleading guilty or not guilty), and Appreciation (capacity to understand oneís own legal situation and circumstances).

The first two areas of the test are assessed by presenting the defendant with the facts from a hypothetical crime in which one man assaults another. The defendant is then asked questions about the choices the hypothetical defendant in the case can make and the reasons for making such choices. The narrative response of the defendant is recorded verbatim. In cases of inadequate responses, the defendant is supplied with an explanation of the issues involved and then asked about the issue again in order to gauge his or her ability to benefit from direct instruction on these issues. In the last section of the test (Appreciation) the defendant is asked specifically about his or her own case, his or her opinions about the strength of the prosecutionís case, and the likely outcome of a trial. Once again, the defendantís answers and explanations given for these choices are recorded verbatim. The defendant receives a score on each scale which places him or her in one of three categories: clinically significant impairment, moderate impairment, or mild or no impairment. Any scores that fall in the range of moderate impairment raise serious concerns about the defendantís competency. The utilization of the MacArthur Competency Assessment Tool in addition to more traditional methods of assessing competence will provide the court with more comprehensive information about a defendantís rational grasp of the issues involved in standing trial.

Judges who are accepting pleas from felony defendants may also wish to avoid the use of closed ended questions (questions that can be answered yes or no) when examining defendants about the Waiver before accepting a plea. As previously mentioned, asking "You understand that by pleading guilty you are giving up the right to an appeal, donít you?" may produce a false positive result (the defendant is deemed to understand when he or she does not actually comprehend) due to acquiescence. It would be more effective to ask the defendant to briefly explain what is meant by a particular right or choice. Finally, a review of the Waiver reveals that many of the sentences are unnecessarily complex. It is likely that having the form reviewed by professionals skilled in manipulating the readability of documents and suggesting changes may result in a document with increased reading ease.

This review suggests that if competency to stand trial is considered to encompass all of the specific abilities and competencies required to participate meaningfully in the adjudication process, then courts, attorneys and clinicians need to take a harder look at the capacities of defendants, since it is clear that competency in its totality is more complicated and challenging that has been believed in the past. Greater attention to the rational understanding of clients facing trial and choices such as pleading guilty will be required if we are to be confident that those entitled by the Constitution to participate meaningfully in their own defense are able to do so.

BIBLIOGRAPHY

Dusky v. United States, 362 U.S. 402 (1960).

Godinez v. Moran, 509 U.S. 389 (1993).

Gudjonsson, G. H. (1991). The "Notice to Detained Persons," PACE Codes, and reading ease. Applied Cognitive Psychology, 5 (2), 89-95.

Fry, E. (1968). A readability formula that saves time. Journal of Reading, 11 (7), 265-271.

Flesch, R. (1948). A new readability yardstick. Journal of Applied Psychology, 32, 221-233.

Graham, W. (1978). Readability and science textbooks. School Science Review, 208, 545-550.

Mobley, M. (1986). Evaluating Curriculum Materials: Unit 4, Assessing Comprehension. Longman for Schools Council.

Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1987). Psychological Evaluations for the Courts: a Handbook for Mental Health Professionals and Lawyers. New York: Guilford.

Poythress, N. Nicholson, R. Otto, R. Edens, J. Bonnie, R. Monohan, J. Hodge, S. (1999).

The MacArthur Competence Assessment ToolóCriminal Adjudication. Odessa, Florida: Psychological Assessment Resources, Inc.

Seiling v. Eyman, 478F.2d 211 9th Cir (1973).

State of New Hampshire v. Champagne, 127 N.H. 266, 270 (1985).

Whitebread, C. and Slobogin, C. Criminal Procedure: An Analysis of Cases and Concepts, 12.02. 12.04 (3rd edition, 1993).

 

The Author

Eric G. Mart, Ph.D., ABPP is a clinical and forensic psychologist in private practice in Manchester, New Hampshire.

 

 

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