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Learning Disabled or Mentally Retarded? Implications for the Rights Waiver
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Diana McCoy, Ph.D

There seems to be a tendency to confuse learning disability with mental retardation, with the former sometimes a tricky concept to get judges in suppression hearings to understand unless they have had personal experience with learning disability, such as with their child. A common line of cross-examination I encounter when I have diagnosed someone as so severely learning disabled that he cannot meaningfully waive his rights seems to more often than not place the emphasis on demonstrating that the defendant is not mentally retarded and therefore understands Miranda. This little obfuscation poses a danger that the concept of learning disability and its implications for knowingly, intelligently, and voluntarily waiving one’s rights will be obscured.

Characteristics of learning disabled and mentally retarded individuals overlap to some extent in that they both pertain to cognitive deficits and involve being handicapped. There are important distinctions between the two, however, with expert testimony needing to be very specific as to the nature of the learning disability and how it impacts the ability to waive one’s rights and make a statement.

Typical cross-examination goes like this:

Does it concern you, Dr., that Mr. Smith made A’s in school in some classes and graduated 244th in his high school class of 500?”

No, because Mr. Smith is learning disabled, not mentally retarded, and so he is able to perform academically with the kind of assistance he in fact received throughout his academic career by virtue of having been classified as learning disabled. He is able to perform better in some classes than others. His difficulty is with central processing of language, especially problematic within the super-charged atmosphere of the interrogation room since stressful situations make comprehending and using language even harder for him. He sometimes fails to appreciate that some words have two meanings, i.e., “waive” and “wave” and becomes easily confused. He has difficulty organizing his thoughts, misses nuances of speech, and is slow to understand what is being said because his listening skills are impaired. This made it very hard for him to understand and respond to the questions posed him by the interrogator.

It is understandable that he would have to have someone write his statement for him after becoming upset by his failure to process what was said to him during the interrogation. It is not surprising that he would sign the statement without reading it because he would not be able to make sense of it unless he read it over and over again, which he is not likely to do, given the circumstances. He would not comprehend the statement if it was read to him because he typically needs verbal data repeated several times due to his problem processing language. Family, friends, and co-workers who know Mr. Smith have all confirmed his slowness and all around obtuseness where language is concerned. This is amply documented by the extensive educational records in his file, which I have summarized in my report to the Court and in my earlier testimony.

Does it concern you, Dr., that Mr Smith scored in the Average range on an intelligence test administered to him in high school?

No, because Mr. Smith is learning disabled, not mentally retarded, and intelligent people may have learning disabilities. He also scored in the Average range on the intelligence test I likewise administered to him, and the results of both tests, 9 years apart, are consistent with each other as well as with a diagnosis of learning disability. That is, there is a significant differential between the verbal and performance portions of the intelligence test, which is diagnostic of learning disability.

Learning disability is diagnosed when achievement on tests is below that expected for age, schooling, and intelligence, with learning problems significantly interfering with academic achievement. Mr. Smith first went to a psychologist for language delay at age 3, repeated kindergarten because of language problems, had speech and language services from kindergarten through high school as a result of a specific learning disabilty, was tutored throughout high school, and was admitted to the University of Tennessee under the auspices of their Disability Student Services, which allows him to have others take notes for him in lectures and extra time to complete exams in a separate room.

Does it concern you, Dr., in view of your testimony that he could not knowingly, intelligently, and voluntarily waive his rights, that Mr. Smith earned a GPA of 2.39 while at the University of Tennessee, which is passing, and he is only 14 hours from graduating?

No, because Mr. Smith is learning disabled, not mentally retarded, and he is able to complete an academic course of study, including attending and even graduating from college when given assistance. However, in this case Mr. Smith was in college for almost 6 years and still did not complete his education despite the services offered for handicapped students. He finally gave up and dropped out of school.

Does it concern you, Dr., that Mr. Smith is capable of living on his own, in his own apartment?

No, because Mr. Smith is learning disabled, not mentally retarded, and is able to live independently. He is nonetheless fairly naïve and childlike and historically it has been easy for others to exploit him. In fact, his parents learned that he went deeply into debt for this very reason, and he is still in the process of reimbursing them, his parents having taken control of his finances and paid off his debts. They have since become aware that he bought every sob story going, allowing others to live with him and keeping them up. At the day care center where he worked he routinely loaned his car to any of the mothers who asked and would baby sit for them on weekends at no charge. He is now back to living with his parents at age 34.

Dr., are you telling this court that Mr. Smith is unable to make decisions or weigh his options?

Yes and no. He is certainly able to decide whether he wants chicken or steak for dinner and which channel to watch on tv tonight. However, when it comes to intelligently waiving his rights, that is, knowing what his options are and appreciating the consequences of his decisions, he has much greater difficulty. If he does not know his basic rights, for example, believing that once the interrogation starts he cannot stop or that if the officer continues to be angry with him for not answering questions the “right” way that he can jail him on the spot, than he can hardly make an intelligent decision on his own behalf regarding the rights waiver. Again, reading his rights or having them read followed by simply asking him if he understood does not ensure that this severely learning disabled young man comprehended them in view of his well-documented difficulty processing language, written or spoken.

An intelligent waiver involves the suspect appreciating the implications of the potential for self-incrimination during an interrogation in the absence of an attorney. The inability to quickly process verbal information received during the interrogation because of a language-based learning disability significantly impedes thinking through options and considering the consequences of any decision(s) as to whether it is prudent to answer the questions of the police without an attorney present.

Dr. McCoy is based in Knoxville. She may be reached at 865-521-7565 and her website visited at www.forensicpsychpages.com

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