A question of hearing vs. understanding
By Albert McKeon/Nashua Telegraph
Reprinted from www.nashuatelegraph.com
July 8, 2007
In America for just about six months, Kenya native Esther Ngari twice waived her Miranda rights and provided police a statement on how an 18-month-old in her care ingested medication and became seriously ill.
Ngari speaks English – one of the official languages of her homeland – and apparently understood the linguistics of the 137-word Miranda warning recited by a Nashua police detective, according to an arrest report. The story she had just told police, assured a detective it was accurate and signed it, the report said.
It marked the second time in about two hours that Ngari had relinquished her Miranda rights: In the first instance, she had voluntarily agreed to the interview at police headquarters on the evening of June 7.
While no one has suggested that Ngari failed to understand the legal protection afforded her through the Miranda, several immigration advocates and attorneys say that cultural and language barriers often prevent immigrants from understanding their rights.
“Even though the Miranda warning is simply worded, it can be difficult to understand for someone whose English is not good enough,” said Behzad Mirhashem, an attorney who works for the state public defender’s office.
“Separately, there’s a cultural issue: some immigrants feel that they have to talk to the police. Whatever the paperwork may indicate, they may be used to legal systems where the reality is very different than what the paperwork may suggest,” said Mirhashem, who spoke generally and not about the Ngari case.
Ngari, 20, moved from Kenya this year to attend LibertyUniversity in Virginia and had been in Nashua for only two weeks when the child fell ill, the police report said.
She was arrested on a felony charge of reckless conduct for not supervising the infant with an unsecured medication bottle in her apartment, but police have since dropped the charge. She still faces a misdemeanor charge of child endangerment for failing to tell the young girl’s father about the incident. The infant has since returned home and is recovering, police said. Ngari’s attorney, Adam Bernstein, declined to comment on her understanding of the Miranda warning. Of course, Ngari isn’t the first immigrant to surrender the right to remain silent and request an attorney. And many native-born Americans also forgo Miranda protection before making statements that could incriminate them.
But for immigrants already struggling to stay afoot in a country loaded with a myriad of cultural, social and language standards different from their homelands, a police warning about the right to remain silent may not make sense at all.
“It would be very typical for a person to act without the frames of reference familiar to most Americans of what’s in their best interest,” said Westy Egmont, president of the International Institute of New Hampshire, which offers resettlement services to immigrants and refugees.
“They have no culture clues as to what Miranda means, or the Fifth Amendment, or the natural inclination to be self-protected in which something could be used against them.”
Those interviews for this story said there is no way of tracking how many foreigners cede their Miranda rights. But they guessed a significant portion of immigrants provide full stories to investigating officers because of language and cultural barriers.
“Intuitively, they are unlikely to understand they don’t have to answer an officer’s questions. They haven’t learned that in their own cultures,” said Barbara Keshen, a former public defender who is now the staff attorney for the New Hampshire branch of the American Civil Liberties Union.
As it is, immigrants can feel overwhelmed with the many social and practical norms and rules they have to learn, Keshen said.
“People come from these very deprived backgrounds,” she said. “They come here and don’t know what automobiles are. They don’t know how to cross streets safely. They don’t know what refrigerators are, or what perishable foods are. The level of what they have to learn to adjust in this country is enormous.”
Randall Drew, an attorney who specializes in immigration law, said immigrants have their rights explained routinely by police and are provided an interpreter if needed.
“But do they understand it? I wonder if they really understand it as a right. They tend to be apologetic and try to rectify whatever the situation is,” he said.
Emphasizing that he isn’t present when police interrogate immigrants, Drew said he suspects some of them plead guilty immediately and waive all rights as long as they can avoid jail.
“They want to get out of the courthouse as fast as they can before immigration (enforcement) gets them,” Drew said.
Drew practices at the Law Offices of Mona Movafaghi in Merrimack, and he represented many of the immigrants arrested for trespassing two years ago in New Ipswich and Hudson. A judge ultimately disallowed the police departments’ use of the state trespass law to detain immigrants in the country illegally. The chiefs of the departments cited lack of faith in federal immigration enforcement for their decisions to act.
As many as four of those immigrants later told Drew, “The first thing out of my mouth was: ‘Give me a break. Don’t arrest me. I’m illegal,’” he said. “Of all the crazy things to say. But they don’t understand.”
How it works
A 1966 U.S. Supreme Court decision mandated that police read the Miranda warning before placing people in custody to question them about a crime. (Police don’t have to read the warning if someone is arrested but not questioned.) The ruling stemmed from the arrest in Arizona of Ernesto Miranda, who confessed to murder and rape before hearing his right to remain silent and have an attorney present.
Congress soon after passed a law allowing voluntary statements, those made despite a Miranda reading, to be admissible in court. In 2000, the Supreme Court upheld both the Miranda ruling and the 1968 federal law.
“Officers are not in a position to give a civics lesson, to see if people understand what their rights are” on a legal level, said Keith Lohmann, a training specialist at New Hampshire Police Standards and Training Council.
Rather, officers must only determine if suspects cognitively understand the Miranda warning, Lohmann said. If a person waives Miranda rights, an officer must presume it’s a knowing waiver, he said.
An officer doesn’t need a suspect’s statement to make an arrest, but anything uttered by the accused must be recorded on the basis of Miranda, Lohmann said. If there is a dispute between police and the accused on statements and a Miranda reading, then a court must interpret if the person knowingly rejected the rights, he said.
Hudson Police Chief Richard Gendron said his officers carry a Miranda warning card written in Spanish. They read the rights aloud and then have the Spanish speaker read them, he said.
Several officers can speak Spanish for further questioning or in case someone is injured, Gendron said. If officers encounter a language they don’t understand, they will probably contact an area hospital to help land an interpreter, he said. Federal law requires hospitals to have access to interpreters of all languages, he said.
Police officers can also seek language translation from 911 operators, Lohmann said.
Many English-speaking Americans, let alone immigrants, waive their Miranda rights out of a sense of obligation and the fear that by remaining silent, they will incriminate themselves even if they aren’t guilty, several lawyers said.
“It’s a mystery why so many citizens waive their rights. I haven’t completely understood that,” Mirhashem said.
For instance, a judge ruled last week that a 26-year-old mother’s statements that she was rough with her 2-year-old daughter before the child died could be used at trial.
The judge ruled that police initially spoke with Nicole Belonga as a witness to gather information about the child’s injuries, but became suspicious during the interview. She agreed to keep talking after officers read her the Miranda warning, the judge ruled.
Another local case under review on the reading of Miranda rights involves an immigrant who has lived in America for nearly 20 years.
Severine Wamala is a Uganda native who became a U.S. citizen after immigrating in 1988. He earned a doctorate at the University of Massachusetts at Lowell and taught math at LowellHigh School. He is charged with raping three young women while he lived in Nashua.
Wamala is trying to have statements he made to police ruled inadmissible in court, arguing police should have read the Miranda warning before his interrogation. Before detectives read his rights, Wamala allegedly admitted to detectives he was “guilty of being too affectionate” with the women, and at one point remarked, “If you want me to say I had sex…I will,” his lawyers wrote in a court filing.
Once Wamala heard his rights, he asserted them and ended the police interview.
After 20 years of policing, Gendron has yet to encounter someone who doesn’t understand a Miranda warning when it is expressed in that person’s dominant language, he said.
“’You have the right to remain silent.’ That’s not hard to understand,” he (Hudson Police Chief Richard Gendron) said. “What you say can be used against you in a court of law.’ That’s not hard to understand, either.”
Yet some immigrants still talk to police because of an insurmountable language and culture gap, Mirhashem said. They can’t shake the cultural expectation that they must cooperate, regardless of individual rights, he said.
“That’s something definitely seen in numerous cases. People say, ‘Of course I had to talk, it’s the police.’”
Editor’s Note: This story first appeared in the Nashua Telegraph on July 8, 2007 and is reprinted with permission.
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