FORENSIC LINGUISTICS: Utah district court rejects testimony as unpersuasive

Editor's Note: One of the most common areas of litigation for Limited English Proficiency defendants, is that of the ability to make a knowing waiver of Miranda rights. In the case of United States v Dutchie, 2008 U.S. Dist. LEXIS 66823, an enrolled member of the Ute Mountain Indian Tribe. Defense counsel called various witnesses in support of the Motion to Suppress, including expert testimony. A significant portion of the Court's order denying the Motion is is reprinted below:

Mr. Dutchie's Ability to Understand His Rights and Implication of His Waiver
....The parties called factual and expert witnesses to provide testimony on the subject. The Government called Mr. Dutchie's mother, Annie Lee Rabbit, to testify about Mr. Dutchie's English and Ute language skills. The Government also submitted evidence of Mr. Dutchie's criminal record. Defense counsel called Marion Deware, Mr. Dutchie's adult education teacher, and Dr. William Eggington, a linguistics expert.

Testimony by Mother. Mr. Dutchie is an enrolled member of the Ute Mountain Ute Indian Tribe. He speaks both English and Ute, although he was educated in English speaking schools. Mr. Dutchie and his mother communicate with each other using a combination of Ute and English. Ms. Rabbit, who is not only Mr. Dutchie's mother but also a translator for the Ute Indian Tribe, testified that Mr. Dutchie "doesn't really speak Ute that well." She also opined that he does not speak or understand the "bigger [English] words" very well.

Testimony by Adult Education Teacher
Marion Deware was Mr. Dutchie's adult education teacher in the Tooele County School District. She specializes in evaluating reading skills and teaching reading skills to adults. She assessed Mr. Dutchie's reading ability in September 2007 (after he had been arrested) using the "easy" version of the standardized T.A.B.E. test ("The Adult Basic Education" test). Overall, he scored "a third grade third month" level meaning that, in general, Mr. Dutchie has absorbed the education of a third grader in his third month of school.The T.A.B.E. test is not an IQ test, and Ms. Deware acknowledged that a person can be intelligent, even have a high IQ, but not be able to read. She also acknowledged that the test does not have built-in markers to determine whether the test-taker is answering honestly or working up to his potential. (Despite Ms. Deware's acknowledgment, there is no evidence to support the conclusion that Mr. Dutchie manipulated the test results.)

Testimony by Forensic Linguist

TestimonyCounsel for Mr. Dutchie presented the testimony of Dr. William Eggington, who is a professor of linguistics. According to Dr. Eggington, "Linguistics is the scientific study of language."

"Forensic linguistics is the application of linguistics study to legal issues." He was hired to analyze the linguistics of the Miranda warning given to Mr. Dutchie, to opine about "what level of reading a person would have to have in order to understand what's in [the] Miranda [warning]" and to opine about whether Mr. Dutchie understood his rights and knowingly waived them during the August 13, 2007 interview.

Dr. Eggington, applying his expertise in forensic linguistics, formed his opinion after reviewing the Interview Transcript, listening to the audio recording of the interview, reviewing records of ten years of Mr. Dutchie's educational history, speaking with Ms. Deware, and reviewing the results of the test administered by Ms. Deware. The Government objected, arguing that the proffered testimony lacked relevance because Dr. Eggington had never spoken with Mr. Dutchie. Over the Government's objection, Dr. Eggington was allowed to testify.

Because his testimony was too extensive to summarize, only the highlights will be discussed here. First, Dr. Eggington concluded that the "standard Miranda [warning], which is I think the one that was used in this case, is pitched at an eighth grade reading level, which means that somebody who [reads at the eighth grade level] will comprehend 50 percent of the Miranda [warning]. For 100 percent you need [to read at the] 11.6 grade level." He reached this conclusion in part based on his professional opinion that "high code" permeates the Miranda warning. "High code" is another way of saying "fancy language" that "educated speakers can understand but other non-educated people can't understand." He pointed to the phrase "the right to" as an example of high code, because it has seven different meanings, four of which are found in the Advice of Rights that Agent Larson read to Mr. Dutchie, and some of which were used by Agent Larson during the interview. He explained the meanings as follows:
[Y]ou have . . . right [versus] wrong, right [versus] left, the conversation right, meaning ["Let's get on with the interview, right?"], [the] intellectual right, meaning "Right, I understand," the human right notion, the right as in right angle, and then you're right as a marker for okay.

He stated further that "when somebody doesn't understand the - comprehend the meaning of a particular word, it's just noise. It just gets washed over." Dr. Eggington concluded--given the Miranda warning's high code, the reading level required to understand the warning, and Mr. Dutchie's third grade reading level--that "it's likely in my opinion that [Mr. Dutchie] has [his Miranda rights] confused with the other rights." (Id.)Defense counsel asked Dr. Eggington, "If Mr. Dutchie does in fact read on a third grade level, would [reading along with Agent Larson] make his comprehension of Miranda . . . better or worse . . .?" His answer, in essence, was that it would be worse. This is his more involved explanation:

Especially the way that the agent read along with him, he read it - the agent was reading it along as if it was ritual. Obviously the agent had done this many times, and so he was reading - he was going through the reading the rights ritual. He was going through at conversational speed, and it would have been impossible in my opinion for Mr. Dutchie to comprehend - to read at that speed, to process - this is realtime processing - to process this complex language at that speed and to comprehend it.

Dr. Eggington also concluded that Mr. Dutchie, who speaks both Ute and English, falls into the "Generation 1.5" category, which means that Mr. Dutchie is "halfway between both languages, and it's very difficult for those folks to comprehend high level language in both codes." According to Dr. Eggington, this status limits Mr. Dutchie's ability to comprehend either language to the adult level of proficiency that a native speaker of either language would reach, even though he was educated in English-speaking schools. And that negatively affected his ability to understand Miranda.Given all of the above, Dr. Eggington ultimately opined that "Mr. Dutchie did not understand that he was waiving his rights" when he signed the consent form and agreed to talk to Agent Larson.On cross examination, Dr. Eggington noted that "reading comprehension is very different from oral comprehension." He acknowledged that "a person could be very familiar with the meaning of a word and not know how to spell it." He also admitted that when he tested Mr. Dutchie, "Mr. Dutchie was very well aware that whether he understood or didn't understood [sic] the Miranda [warning] was an issue." And he essentially agreed that his opinion was "based in part on assuming that [Mr. Dutchie was] not somebody who was dealing with the law frequently."

He did say, however, that even if Mr. Dutchie had been arrested multiple times before, that fact would not change his opinion. "If someone has not got the comprehensibility to understand what's going on, then often it doesn't matter how frequent they get the exchange . . . because it's all noise."

FOOTNOTES After defense counsel's direct examination of Dr. Eggington, the court had to stop the hearing and continue it eleven days later. During the recess period, Dr. Eggington interviewed and tested Mr. Dutchie. That information was brought out during the second part of the evidentiary hearing, over the Government's objection. Because Dr. Eggington had already formed his opinion about Mr. Dutchie's understanding, because his interaction with Mr. Dutchie occurred after Mr. Dutchie had listened to Dr. Eggington's earlier testimony, and because the interview occurred between direct examination and cross examination, the court places very little weight on that part of Dr. Eggington's testimony. Accordingly, much of his testimony on redirect, which may be found in the transcript of the April 22, 2008 hearing, will not be discussed at any length.Dr. Eggington also acknowledged that the Interview Transcript shows Mr. Dutchie's proper use and understanding of different meanings of the word "right."

One of those uses of "right" occurred when Agent Larson stated, "they've got a right to know," to which Mr. Dutchie responded, "I know they do." Dr. Eggington acknowledged that this was "the same kind of right as you have a right to remain silent" (the "high code" in Miranda), and that Mr. Dutchie appeared to understand what Agent Larson was talking about. (Id.) He also admitted that the statement "You don't have to talk to us if you don't want to" (which Agent Larson used) would be easier to understand than the phrase "You have the right to remain silent." When counsel raised the issue of whether Mr. Dutchie was only partially proficient in both Ute and in English, the court asked, "Does it make any difference to your opinion, Mr. Dutchie who is represented by very competent counsel who can request an interpreter, that his defense team has chosen not to have an interpreter here?" His response: "I would have to say yes."

Mr. Dutchie's Familiarity with the Criminal Justice System.
The United States submitted documentation of Mr. Dutchie's arrest record. During the evidentiary hearing, the Government noted that before Mr. Dutchie was arrested and charged with second degree murder, he had been arrested twelve times. The arrest record also shows that Mr. Dutchie has been represented a public defender at least once before, that he pleaded guilty to a number of charges (mostly related to intoxication and disorderly conduct), went to trial on two charges of shoplifting, and spent some time in jail for various offenses.

Dutchie relies on the Interview Transcript and expert opinions to support his contention that he did not understand the rights he was waiving, much less the consequences of waiving the rights.Mr. Dutchie relies heavily on the testimony of Dr. Eggington. But the court does not find Dr. Eggington's testimony particularly persuasive. His testimony was highly theoretical. He essentially testified that any individual whose reading skills do not equal or exceed the reading skills of a theoretical eleventh grader in his six month of school will not be able to fully understand the "high code" of the Miranda warning administered by law enforcement officers throughout this country every day based on United States Supreme Court precedent. According to Dr. Eggington, because Mr. Dutchie reads at a third grade level, barring all else, he could not, and therefore did not, understand his rights or the consequences of his waiver of rights.

The court must look to the totality of the circumstances. Dr. Eggington's testimony and opinion did not consider the practical reality of the situation before the court. Moreover, the Government brought out during its cross-examination of Dr. Eggington that certain facts apparent from the Interview Transcript are inconsistent with Dr. Eggington's opinion. For example, Agent Larson twice stated that Mr. Dutchie did not have to talk to Agent Larson if he did not want to. Dr. Eggington acknowledged that that was not "high code" like the warning's "right to remain silent" language. He also acknowledged that during the interview, Mr. Dutchie demonstrated his understanding of the different meanings and uses of "right," which does not suggest that Mr. Dutchie, with such purportedly limited language skills, could not properly communicate or evaluate the things Agent Larson was saying.Dr. Eggington did not consider Mr. Dutchie's criminal background or familiarity with the criminal justice system. He apparently placed little, if any, emphasis on the fact that Mr. Dutchie was coherent during the interview, appeared to understand the questions, and answered in a manner that was appropriate given Agent Larson's line of questioning. He dismissed Mr. Dutchie's ability to communicate during the interview as a "street level" form of communicating, rather than the "high code" that makes up Miranda.


Furthermore, case law supports a conclusion contrary to Dr. Eggington's professional opinion. For example, in Smith v. Mullin 379 F.3d 919 (10th Cir. 2004), the Tenth Circuit found that a defendant whose cognitive abilities mirrored those of a twelve-year old ("Every doctor who examined him placed his intellectual functioning in the range of mild to borderline mental retardation") nevertheless knowingly and intelligently waived his Miranda rights. See Id. at 933. In that case, a clinical neuropsychologist testified on behalf of the defendant and concluded, after administering a "Grisso test" (designed to test one's ability to waive Miranda rights), that the defendant could not knowingly and intelligently waive his Miranda rights. This did not persuade the trial court or the Tenth Circuit, which found under the totality of the circumstances that the defendant did in fact knowingly and intelligently waive his Miranda rights. The appellate court noted that "while Mr. Smith's intellectual functioning was limited, [the clinical neuropsychologist] testified that [the defendant] would understand the role of police officers and the concept of a criminal charge." Mullin, 379 F.3d at 933.

Also, the lone fact that the defendant's cognitive abilities were that of a twelve-year-old "does not render his waiver ineffective." Id. at 933-34. The Court also found it significant that the defendant understood the questions posed to him by the officers, and that he had "prior experience with the criminal justice system. In 1986, he retained counsel to defend him on an assault charge, eventually pled guilty, and served time in prison. The concepts encompassed by Miranda were not foreign to him." Id. at 934. The same can be said of Mr. Dutchie.The one distinguishing factor of Smith v. Mullin is that the officers slowly walked the defendant through the Miranda rights and the defendant stated that he understood those rights. But the fact that Agent Larson did not ask Mr. Dutchie if he understood his rights is not dispositive. The court looks at the totality of the circumstances, "where no single factor . . . is dispositive." United States v. Burson, 531 F.3d 1254, 1258 (10th Cir. 2008).

According to the Tenth Circuit, "a defendant must be impaired to a substantial degree to overcome his ability to knowingly and intelligently waive his privilege against self-incrimination." The facts of this case show that Mr. Dutchie was not impaired to a substantial degree. Although his reading abilities may not be higher than a theoretical third grader, his ability to understand what was going on around him and the consequences of his actions was apparent from the Interview Transcript and the audio recordings submitted by the Government. Under the totality of the circumstances, the court holds that, on August 13, 2007, Mr. Dutchie knowingly, voluntarily, and intelligently waived his Miranda rights. Accordingly, his statements to Agent Larson are admissible.