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Interrogation and the Law of Confessions7

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INTRODUCTION The Privilege against Self-

Incrimination Confessions Law before Miranda

THE MIRANDA DECISION An Interpretation of Miranda Voluntariness after Miranda

MIRANDA AS A CONSTITUTIONAL RULE

Attacking the Constitutional Basis of Miranda

The Public Safety Exception Rehabilitating Miranda?

INTERPRETING MIRANDA Adequacy of Warnings

Waiver of Rights Termination and Resumption of

Questioning Invoking the Right to Counsel Defining Custody The Nature of Interrogation The Use of Deception

QUESTIONING AFTER FORMAL CHARGING: THE SIXTH AMENDMENT

The Massiah Right after Brewer v. Williams

Undercover Policing and the Right to Counsel

TORTURE AND INTERROGATION IN A TIME OF TERROR

Torture Extraterritoriality and Miranda

LAW IN SOCIETY: THE SOCIAL REALITY OF CONFESSIONS

The Acceptance of Miranda Police Interrogation Today:

Adapting to Miranda Why Do Innocent People Confess?

JUSTICES OF THE SUPREME COURT: ENDURING LIBERALS

William J. Brennan Jr. Thurgood Marshall

admission

compulsion

confession

cruel trilemma

dying declaration

exculpatory

immunity

inculpatory

interrogation

involuntary confession

material witness

privilege

real evidence

self-incrimination rule

supervisory authority

testimonial evidence

third degree

voluntariness test

The Constitution of the United States stands as a bar against the conviction of any individual in an American court by means of a coerced confession. There have been, and are now, certain foreign nations with governments dedicated to an opposite policy: governments which convict individuals with testimony obtained by police organizations possessed of an unrestrained power to seize persons suspected of crimes against the state, hold them in secret custody, and wring from them confessions by physical or mental torture. So long as the Constitution remains the basic law of our Republic, America will not have that kind of government.

—Justice Hugo Black, Ashcraft v. Tennessee, 322 U.S. 143, 155 (1944)

CHAPTER OUTLINE

KEY TERMS

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INTRODUCTION Interviewing witnesses and interrogating suspects are essential police investigation tech- niques.1 Interviewing witnesses helps police understand what occurred at a crime scene. Police will interrogate an arrested suspect to obtain admissions or confessions of guilt that can be used in court to convict the suspect. Abusive interrogation, including torture, was common in American policing until the 1940s. Instances of excessive force still occur, and the potential for brutality must constantly be guarded against.2 Furthermore, recent research shows that contemporary practices of “psychological interrogation” produce many false confessions by the innocent.3 (See the “Law in Society” section in this chapter.)

Courts apply three constitutional rights to check abusive interrogation: (1) due process to prevent torture and abuse of suspects, (2) the privilege against self-incrimination to preserve a suspect’s right to silence, and (3) the right to counsel for post-indictment questioning of defendants. Since 1966, Miranda v. Arizona (1966) and other cases inter- preting the Self-Incrimination Clause have been the major focus of interrogation law. Although Miranda includes a Fifth Amendment right to counsel that applies only during custodial interrogation, the Sixth Amendment Right to Counsel Clause requires a lawyer for all questioning of a person who has been formally charged with a crime (Massiah v. United States, 1964).

In a nutshell, (1) the due process clauses (Fifth and Fourteenth Amendments) pro- hibit the introduction of involuntary confessions; (2) the Miranda doctrine holds that police interrogation of a suspect in custody is inherently coercive and any confession or admission is presumed to be the product of compulsion unless a suspect is informed of his or her rights and voluntarily waives the right of silence under the privilege against self- incrimination; and (3) the right to counsel prohibits questioning a criminal defendant to elicit incriminating statements without the defendant’s lawyer being present.

The Privilege against Self-Incrimination The Self-Incrimination Clause appears to focus on testimony in a criminal trial: “No person . . . shall be compelled in any criminal case to be a witness against himself.” The meaning of this famous rule, regarding confessions, is even now not fully settled. The state of confessions law has been in flux since Miranda v. Arizona (1966) was decided. Despite a decision in 2000 declaring the Miranda rule to be constitutional (Dickerson v. United States), a civil case that followed added confusion concerning the effect of the privilege against self-incrimination and Miranda (Chavez v. Martinez, 2003). More recent cases have only partially determined that Miranda is enforceable, and conservative justices seem ready to neuter the Miranda rule. These cases, discussed below, require a basic understanding of contemporary self-incrimination law.

The privilege against self-incrimination clearly allows a defendant to remain silent in a criminal trial and have a defense conducted by counsel entirely by cross-examination. Defendants cannot be forced to testify, no matter how relevant their testimony. A prosecu- tor or judge who mentions a defendant’s silence, except at the behest of the defendant or under limited circumstances, violates the defendant’s right against self-incrimination (Griffin v. California, 1965; Lakeside v. Oregon, 1978). Jurors may believe that a defendant who does not take the stand has something to hide, but a hint by a judge or prosecutor so unbalances the scales of justice in the state’s favor as to undermine a fair adversary trial. Prosecutorial or judicial comment also puts pressure (compulsion) on the defendant to give up the right to silence.

Claiming the Privilege. To ensure that the right is not destroyed before a crimi- nal prosecution begins, a person may refuse to testify under the Fifth Amendment in a vari- ety of proceedings where he or she is called as a witness. These include criminal and civil cases (McCarthy v. Arndstein, 1924; United States v. Monia, 1943); administrative

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proceedings (Malloy v. Hogan, 1964); congressional investigations (Watkins v. United States, 1957); and grand juries (Counselman v. Hitchcock, 1892). If witnesses testify in these proceedings, their preserved testimony, if incriminating, can later be introduced against them in a criminal trial.

The privilege has to be actively invoked in these proceedings because it is an excep- tion to the general rule that individuals have an obligation to testify (either voluntarily or under subpoena) to assist the state in prosecuting crimes and gathering information for legitimate purposes. Before formal proceedings, state officers may request information, as when a police officer asks residents for information about a criminal incident. At this stage, the officer cannot compel a person to provide information. Given Americans’ well- honed sense of privacy, many may refuse to “get involved.” Nevertheless, as Chief Justice Earl Warren stated, “It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement” (Miranda v. Arizona, 1966). A per- son not in custody who does respond to questions of a federal police officer has an obliga- tion to answer questions truthfully and may face criminal charges for lying (Brogan v. United States, 1998). If the prosecution believes that a person has information material to the prosecution of a pending criminal charge or grand jury investigation, the person may be arrested and confined as a material witness if a judge believes the person will flee.4

In sum, persons formally subpoenaed by judicial, executive, or legislative bodies or by grand juries or held as material witnesses must give testimony unless they have a legal privilege or right to refuse to testify. Failure to testify will lead to a finding of contempt, which can be punished with fines or even jail. The law recognizes several privileges that exempt a person from providing information to lawful authority. These include the privi- leges of religious, medical, or legal practitioners not to divulge information given in pro- fessional confidence; the marital privilege that protects the natural privacy of spouses5; and the privilege against self-incrimination.

Values Protected by the Privilege. The privilege against self-incrimination “is widely regarded as both fundamental to human liberty and venerable in the history of the development of civil rights.”6 It is related to modern notions of privacy and is a main- stay of the adversary system. It supports the rule that the burden of proof of guilt rests on the prosecution and that guilt must be proven beyond a reasonable doubt.

The privilege against self-incrimination stands in contrast to brutal legal measures in ancient Rome and medieval continental Europe that allowed the use of torture to obtain evidence of serious crime.7 It also contrasts with far more civilized European criminal jus- tice systems today that many view as more effective in getting at the truth.8 As the Supreme Court has stated, the privilege

reflects many of our fundamental values and most noble aspirations: our unwillingness to sub- ject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load; our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life; our distrust of self-deprecatory statements; and our realiza- tion that the privilege, while sometimes a shelter to the guilty, is often a protection to the inno- cent. (Murphy v. Waterfront Commission of New York Harbor, 1964, internal references and quotation marks omitted)

Truth values underlie the Fifth Amendment privilege, which as a trial right was said by the Court to be closely related to the “correct ascertainment of guilt.” As such, the privilege itself and the Miranda rule that followed serve to “guard against the use of unreliable state- ments at trial” (Withrow v. Williams, 1993, citing similar cases).

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Prior to 1964, the privilege applied only to the federal government. In Malloy v. Hogan (1964), it was incorporated into the Fourteenth Amendment Due Process Clause and held to “secure . . . against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence.”

Application of the Privilege. The privilege applies only to “natural persons.” It cannot be claimed on behalf of corporations or other business entities by their officers, even sole proprietorships; they are deemed to be “artificial persons” for self-incrimination purposes (Wilson v. United States, 1911; Bellis v. United States, 1974; United States v. Doe, 1984). Tax records created by an individual and delivered to her attorney are not immune from subpoena power (Fisher v. United States, 1976). The privilege applies only to testimonial evidence—evidence given by a live witness (or in personal writings like a diary) that is of a “communicative nature.” Testimony conveys information based on what the witness knows or believes he or she knows. A testimonial communication “must itself, explicitly or implicitly, relate a factual assertion, or disclose information” that expresses “the contents of an individual’s mind” (Doe v. United States, 1988). This is important because even if testimony is not directly self-incriminating, a witness who speaks reveals something about his or her mental process to the listener. This opens up the witness’s mind and psychological process to the listener’s scrutiny. A witness who testifies raises the pos- sibility that her statements will lead the listener to infer that the witness has admitted to an incriminating fact, even if no explicit confession is made.

The privilege against self-incrimination does not apply to physical evidence, also called real evidence, no matter how incriminating, because it is not testimonial. Justice Oliver Wendell Holmes Jr. ruled that a suspect has no right to prevent the court, jury, or witnesses from viewing the suspect’s face and person (Holt v. United States, 1910). The government can “compel a person to reenact a crime; shave his beard or mustache; try on clothing; dye her hair; demonstrate speech or other physical characteristics; furnish hand- writing samples, hair samples, or fingerprints; have her gums examined; or take a blood- alcohol, breathalyser [sic], or urine test.”9 A suspect can be photographed or measured, have tattoos and scars examined, and be required to stand in a lineup. Police can require a person to provide blood samples taken by medical personnel where blood alcohol levels are relevant evidence (Schmerber v. California, 1966). A driver stopped for driving under the influence (DUI) who refuses to take a Breathalyzer test may have his driving license revoked, and the fact of refusal can be used against him at a subsequent criminal trial, even if the police did not inform the driver of that fact (South Dakota v. Neville, 1983). Blood taking is distinguished from a “lie detector” session, which not only gathers physiological attributes, but also may elicit testimonial responses. Police departments uniformly give Miranda warnings before administering polygraph examinations.

Compulsion. Compulsion is an element of the right against self-incrimination. A purely voluntary admission of guilt to a friend or to an undercover agent is not made under compulsion; therefore the listener can later testify to what was said. An ordinary witness in a trial or grand jury hearing need not be warned of his or her privilege because the witness is not deemed to be under such compulsion, although subpoenaed and sworn to tes- tify (United States v. Monia, 1943). In other words, the privilege against self-incrimination is not self-executing and must be claimed by the witness or it will be lost.

Although the Fifth Amendment appears to absolutely prohibit prosecutorial compulsion against a suspect or against a witness who claims the privilege, this is not so. The state can lawfully compel a witness to testify by granting immunity from prosecution, and in this way the state can achieve its legitimate goal of gathering information in an inquiry or furthering a prosecution. Immunity is granted when the prosecutor believes that an individual who claims

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the privilege has relevant information. If immunity from prosecution is granted and the wit- ness continues to refuse to testify, the courts have power “to compel testimony . . . by use of civil contempt and coerced imprisonment” (Lefkowitz v. Turley, 1973, citing Shillitani v. United States, 1966).

An important consequence of granting immunity—for understanding the most recent controversy regarding confessions law—is that once immunity is granted, the state- ment made cannot be used against the witness in any way. “Testimony given in response to a grant of legislative immunity is the essence of coerced testimony. In such cases there is no question whether physical or psychological pressures overrode the defendant’s will; the witness is told to talk or face the government’s coercive sanctions, notably, a conviction for contempt” (New Jersey v. Portash, 1979, emphasis added). Therefore, grand jury testi- mony compelled by a grant of immunity cannot be used later in a trial to impeach the wit- ness’s credibility. The rule is different under Miranda law.

The government can also compel testimony, for purposes other than criminal prosecu- tion, in the so-called penalty cases. Police officers were required to testify to an administra- tive body about corruption or forfeit their jobs, as long as their testimony was not later admitted in a criminal case (Garrity v. New Jersey, 1967). Also, an officer who refused to testify or to waive immunity could not be fired because it was based on his “refusal to waive a constitutional right” (Gardner v. Broderick, 1968). In Spevak v. Klein (1967), an attorney under judicial investigation for misconduct “asserted the privilege and refused to comply with a subpoena duces tecum demanding testimony and documents, despite facing discipli- nary action for his refusal. When he appealed his resulting disbarment, a plurality of the Court determined that the threat of disbarment constituted compulsion under the Fifth Amendment and held that the state could not impose the penalty for an assertion of the privilege.”10

These early cases implied that the state could not compel the officers to testify, but as the Court later made clear, the state can require officers to testify on pain of losing their jobs and can require contractors to testify on pain of losing contracts, as long as they were granted immunity from criminal prosecution (Lefkowitz v. Turley, 1973). The result of these cases is to treat penalties (e.g., loss of jobs or contracts, disbarment) as compulsion, but to allow the compulsion as long as the witnesses are immunized from the use of their testimony in later criminal prosecutions.

The act of a police officer simply asking questions of a person is not Fifth Amendment compulsion. Miranda v. Arizona (1966), however, held that when questions are asked of a suspect during custodial interrogation, Fifth Amendment compulsion exists. In this case, the privilege is not self-executing, and the police must inform the suspect of his or her rights by reading several warnings. (Cases that distinguish between police inter- viewing and interrogation are reviewed later in this chapter.)

Incrimination. Under the privilege, a person cannot lawfully refuse to testify to pro- tect another, to avoid trouble with private parties, or for any reason except to avoid being prosecuted for a crime or for juvenile delinquency, as the penalties for a delinquency adju- dication are essentially penal in nature (In re Gault, 1967). Similarly, any incriminating statements obtained from a defendant who spoke with a state psychiatrist in a pretrial hear- ing to determine competence to stand trial cannot be introduced in the defendant’s sentenc- ing hearing unless the defendant waived his right against self-incrimination at the hearing following Miranda warnings (Estelle v. Smith, 1981).

On the other hand, the Court has not extended self-incrimination protection to pro- ceedings under sexual offender statutes that lead to incarceration or additional penalties. These programs are declared civil, and not penal, in nature. In Allen v. Illinois (1986), sex- ual assault charges were dropped against the defendant, and the state proceeded against him under the Sexually Dangerous Persons Act. Examining psychiatrists for the state tes- tified at the bench trial on the state’s commitment petition. The trial court found that the

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state proved Allen had a mental disorder and a propensity to commit sexual assaults. Based on the psychiatrists’ testimony, and that of the sexual assault victim, the court found Allen to be a sexually dangerous person. The act authorized potentially indefinite commitment to the “sex deviate facility” located in the Wisconsin State Prison. Allen claimed that infor- mation elicited from him violated his right against self-incrimination. The Supreme Court held (5–4) that the program was one of civil commitment, despite the fact that the act pro- vides safeguards applicable in criminal trials (counsel, jury trial, confrontation and cross- examination of witnesses), that the state had to prove dangerousness beyond a reasonable doubt, and that a person adjudged sexually dangerous is committed to a maximum-security institution that also houses convicts needing psychiatric care.

In McKune v. Lile (2002), a prison inmate convicted of rape was ordered into a treat- ment program a few years before his scheduled release. To participate, Robert Lile had to answer questions that would disclose criminal activity. No immunity was granted for any incriminating disclosures. Lile refused to participate. As a result, his prison privileges were reduced. He lost visitation rights, earnings, work opportunities, the ability to send money to family, canteen expenditures, access to a personal television, and other privileges. He also was transferred to a potentially more dangerous maximum-security unit. The Supreme Court held (5–4) that the requirement to disclose criminal information did not violate the Self-Incrimination Clause. In a plurality opinion, Justice Anthony Kennedy reasoned that although prisoners have Fifth Amendment rights, the program does not compel prisoners to testify because the lost privileges and transfer to a maximum-security unit “are not [con- sequences] that compel a prisoner to speak about his past crimes despite a desire to remain silent.” The loss of privileges that Lile suffered was, furthermore, related to the objectives of a program that had legitimate penological goals. There was no self-incrimination viola- tion as long as the program objectives did not constitute atypical and significant hardships. Justice John Paul Stevens, dissenting, felt that the penalties imposed for not participating were severe. More fundamentally, Lile was punished for exercising his rights under the Self-Incrimination Clause.

Allen was criticized because it “is insensitive to the reality of the commitment sys- tem” that makes it very much like an indefinite prison sentence.11 The kinds of programs upheld in Allen and McKune are politically popular attempts to deal with highly predatory criminals. Nevertheless, there is evidence that some offenders placed in these programs do not fit the profiles of mentally aberrant patients and that the programs may be covert ways of imposing virtual life sentences. The evidence used to place prisoners in programs may consist more of their prior record than any medical information.12

The privilege protects only against incrimination in American courts. A former Nazi camp guard, unprosecutable in the United States because the statute of limitations had run out, was subpoenaed to testify in deportation hearings. He claimed self-incrimination pro- tection because his testimony could be used to prosecute him in other countries, including Lithuania or Germany. The Supreme Court held that the Self-Incrimination Clause refers to American procedures, as do the other clauses of the Fifth Amendment (Grand Jury, Double Jeopardy, Due Process, and Just Compensation) (United States v. Balsys, 1998).

The Act of Producing Evidence. Federal appellate courts have held that although “the contents of voluntarily produced papers are not protected by the Fifth Amendment, the act of producing such documents is protected . . . if the act itself is both testimonial and incriminating.”13 Production of subpoenaed evidence exposes the producer to four potentially incriminating facts in regard to the evidence: (1) its existence, (2) its authenticity, (3) its possession, and (4) the belief that the documents match the terms of a subpoena (Fisher v. United States, 1976). The Supreme Court has not established a bright- line rule that immunizes compelled production of records from prosecution. Each case must be resolved on its own facts. Where a court determines that production itself is incriminating, the individual may still have to produce the records but may be granted immunity, although this is not automatic (United States v. Doe, 1984).

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Certainly, the oddest and most dramatic act-of-production case is Baltimore Department of Social Services v. Bouknight (1990). The Baltimore City Department of Social Services (BCDSS), fearing child abuse, removed an infant, Maurice, from his mother, Jacqueline Bouknight. He was returned to her a few months later, under various conditions. Eight months later, fearing for Maurice’s safety, the juvenile court ordered his return to BCDSS custody. Bouknight refused to turn over the boy. A diligent search by police and relatives failed to produce him. Bouknight was held in contempt of court for failing to produce Maurice and was jailed. She challenged this in the U.S. Supreme Court on the ground that the compelled production of Maurice might tend to incriminate her.

The Supreme Court held that Bouknight had no Fifth Amendment claim because Maurice’s physical condition was not testimonial evidence. She argued that “her implicit communication of control over Maurice at the moment of production might aid the State in prosecuting [her].” The Court ruled that even if the boy’s production were testimonial, it still did not give her the right to refuse the order “because she has assumed custodial duties related to production [of Maurice] and production is required as a part of a noncriminal regulatory scheme” (emphasis added). The Court did not answer the question of whether the Fifth Amendment would protect Bouknight against prosecution if she complied with the order, produced Maurice, and was prosecuted for child abuse because of evidence obtained from her act of production.

Having lost her case, Bouknight remained in jail for contempt of court for seven and a half years, one of the longest terms for contempt in U.S. history. She was released in October 1995. The judge who ordered the release said that continued imprisonment was no longer an effective tool to force the information from her. Her lawyers called Bouknight a hero of civil disobedience, but the judge who had held her in contempt expressed fears that the child might be dead.14

Confessions Law before Miranda English and American courts developed a common law exclusionary rule for coerced con- fessions in the years around 1800. Police could question suspects, and incriminating state- ments could be used in evidence against them, as long as the statements were not “induced by force, threat of force, or promise of leniency from a person in authority, for if it has been so obtained, it is considered ‘involuntary’ and excluded.”15 In 1912, the English courts advanced the protection offered to a suspect from coercive interrogation by establishing the so-called Judges’ Rules for the guidance of police officers. The Judges’ Rules stated that before asking a person about to be charged with a crime if he or she wished to say any- thing in answer to the charges, that person should be told, “You are not obliged to say any- thing unless you wish to do so, but whatever you say will be taken down in writing and may be given in evidence.”16 A failure to give the warning rendered a statement improper, and it could be excluded from consideration at trial. The English Judges’ Rules were well known to American jurists and established the idea that it is proper to inform suspects of their basic right against self-incrimination.

The voluntariness test was established in each American state by the late nineteenth century. The Supreme Court, in Bram v. United States (1897), held that coerced confes- sions in federal cases were guided by the Fifth Amendment right against self-incrimination. The test of admissibility under Bram, however, was essentially the voluntariness test. In both state and federal law, therefore, coerced or involuntary confessions were excluded from evidence, although no warning requirement was yet established. Before the 1960s, the criminal justice amendments of the Bill of Rights had not yet been incorporated, and so Bram’s self-incrimination rule did not apply to the states.

In practice, state courts were often reluctant to exclude confessions even when there was compelling evidence of coercion. As a result, defendants whose confessions were the product of coercion turned to the federal courts, claiming that coerced confessions violated the Fourteenth Amendment Due Process Clause. From 1936 until 1966, the Supreme

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Court decided more than thirty confessions cases from the states under the Due Process Clause. In 1964, the Fifth Amendment self-incrimination rule was incorporated, paving the way to Miranda v. Arizona (1966). A brief review of the due process voluntariness test helps us appreciate the significance of the “Miranda revolution.”

In Brown v. Mississippi (1936), the first Supreme Court case to review a confession obtained by state or local officers, three African American men confessed to committing a murder after being subjected to torture during their interrogation by the local sheriff and others. Their treatment included being hung by a rope from a tree, being let down, and being hung again, and whipping “with a leather strap with buckles on it” that cut their backs to pieces. After resisting these tortures over three days, they were told that it would continue until they signed a confession dictated by a deputy. The Supreme Court held that confes- sions obtained by such physical torture were “not consistent” with Fourteenth Amendment due process of law, rendering the trial and conviction void because they were “a mere pre- tense where the state authorities have contrived a conviction resting solely upon confessions obtained by violence” (Brown v. Mississippi, 1936). The legal foundation of Brown was not a specific Bill of Rights provision but the “fair trial” idea of the Fourteenth Amendment Due Process Clause, first adopted by the Court in Moore v. Dempsey (1923). (See Chapter 1.)

The due process approach toward involuntary confessions initiated by Brown was not limited to physical torture. The Court soon applied the voluntariness test to lesser forms of coercion. The basic question was whether, under the facts and circumstances of the case, a particular confession was voluntary. Was it made of the defendant’s free will? Was it obtained by police interrogation tactics that overcame the defendant’s will? In case after case, the Supreme Court moved inexorably toward more refined standards. In Ashcraft v. Tennessee (1944), for example, the police did not beat the defendant but ques- tioned him “in relays” for thirty-six hours with no interruption until he confessed to mur- dering his wife. The Supreme Court held that the long period of straight questioning was itself sufficient coercion so that his statements were not voluntary but compelled. Justice Hugo Black cited the Wickersham Commission’s report of 1930 that condemned this kind of police behavior, known as the third degree, “as a secret and illegal practice.”17 The third degree, common in that era, ranged from severe questioning to police beatings of sus- pects to force confessions out of them. The Court’s stream of state confessions cases, enforcing the involuntary confessions rule, was aimed at pressuring police departments to adopt more civilized interrogation methods. Chambers v. Florida (1940), a coerced con- fessions case, “clearly acknowledged that the federal government had a duty to guarantee fair trials in state as well as federal courts.”18

Other practices held to undermine the defendant’s will and induce involuntary con- fessions in violation of the Fourteenth Amendment included

● Defendant moved to secret places so that family, lawyers, or friends could not contact him (Chambers v. Florida, 1940; Ward v. Texas, 1942).

● Defendant kept naked for several hours (Malinski v. New York, 1945). ● Defendant told by a state-employed psychiatrist that the doctor was there to help him and

would provide medical assistance, thus gaining the defendant’s confidence and incriminat- ing information (Leyra v. Denno, 1954).

● Suspect, a young African American, told that he would be handed over to a lynch mob (Payne v. Arkansas, 1958).

● Defendant, in his cell, told by a police officer, who had been a childhood friend, over a period of days that the officer would lose his job if he did not get a statement (Spano v. New York, 1959).

● Vigorous interrogation of a mentally defective or insane suspect (Blackburn v. Alabama, 1960; Culombe v. Connecticut, 1961).

● Use of “truth serum” (Townsend v. Sain, 1963). ● Defendant told that her children’s welfare assistance would be cut off and her children taken

from her if she failed to cooperate with police (Lynumn v. Illinois, 1963).

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The justices were clearly appalled by these excessive and coercive methods. Indeed, the Supreme Court held that where police action in forcing a confession was so egregious as to clearly violate due process, the police could be subject to prosecution under the fed- eral criminal laws (Williams v. United States, 1951). As a court of law, however, the Supreme Court could not directly require police to follow more civilized procedures. Through its due process jurisdiction, the Court could only indirectly influence police practices by reversing convictions when police went too far. By progressively refining the standard of what constituted an involuntary confession, the Court signaled the police community to eliminate coercive methods of interrogation. On the positive side, the due process approach balanced the operating realities of policing with an expression of society’s highest values. The negative side was that the Court’s piecemeal approach seemed to hardly make a dent in the problem of police coercion.

Problems with the Voluntariness Rule. The due process approach was highly subjective; it provided no clear guidance for lower courts and police and was unsat- isfactory to many judges and lawyers. This piecemeal method gave the police examples of what to avoid, but no clear-cut or bright-line rule explaining how constitutional interroga- tion should be conducted. This growing dissatisfaction was a reason why the Court adopted the seemingly clear, rulelike guidelines in Miranda. Professor Richard Cortner comments:

Adhering to the fair trial approach to the Due Process Clause, the Court followed a meandering and ofttimes puzzling course in state criminal cases during the 1950s. . . . [T]he Court’s perfor- mance under the Due Process Clause was such as to involve it in unpredictable intrusions into the state criminal process on the basis of standards nowhere satisfactorily articulated—with the result that serious federal-state strains developed.19

The “totality of the circumstances” approach to coerced confessions was ad hoc case-by- case decision making that seemed the opposite of firm constitutional policy.

More fundamentally, the Court based the due process voluntariness test on different constitutional reasons: “(1) ensuring that convictions are based on reliable evidence; (2) deterring improper police conduct; or (3) assuring that a defendant’s confession is the product of his free and rational choice.”20 The Court shuttled between these rationales, leaving lawyers and trial judges in confusion. In early cases like Brown and Ashcraft, all three elements coincided: Excessive police conduct overpowered the suspect’s will and raised real doubts about the accuracy of the confession. In some later cases, the Court seemed to focus primarily on the reliability or accuracy of confessions. Lyons v. Oklahoma (1944) ruled that a confession would be upheld if the state “employed a fair standard in adjudicating common law in voluntariness claims” as long as it appeared that the confession was true, a rationale that would have narrowed the scope of the voluntari- ness rule. But in other cases, the Court set aside convictions even where the confession’s truthfulness was substantially corroborated, because the police misconduct was too great to ignore (Watts v. Indiana, 1949). A police misconduct rationale would broaden the Court’s control over police behavior. Indeed, without signaling a clear intention to do so, the Court in the 1950s seemed to be shifting toward a police conduct test, concerned less with the accuracy of the confession or its actual voluntariness and more with controlling egregious police conduct. In Rogers v. Richmond (1961), for example, the Court struck down a seemingly accurate and voluntary confession because the police tricked the suspect into thinking that they were going to arrest his ailing wife for questioning. The Court, nevertheless, did not rely on Rogers as a vehicle to sharply limit police interrogation practices. It thus produced inconsistent results by emphasizing different purposes in different cases. The lack of clarity of the rules and the underlying purposes of its due process cases led the Court to search for bright-line confessions rules to give police firmer guidance.

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384 Chapter 7

The Federal “Time Test.” One attempt to create a bright-line exclusionary rule was established only for federal officers in McNabb v. United States (1943) and applied later in Mallory v. United States (1957). The rule excluded confessions if an arrested sus- pect was not brought before a magistrate without “unnecessary delay,” as required by the Federal Rules of Criminal Procedure. McNabb stated that a goal of this rule was to reduce opportunities for police coercion and third-degree practices. Mallory repeated this ratio- nale, noting that an important function of the judge at the initial appearance is to inform a suspect of his or her right to remain silent.

The dangers inherent in the police holding suspects in custody without bringing them to a judge were highlighted shortly before Miranda in Davis v. North Carolina (1966). Elmer Davis Jr., an African American with low mental functioning who had escaped from a prison camp, was held as a suspect in a rape-murder for sixteen days in a police lockup cell measuring six by ten feet and was questioned every day in order to obtain a confession. A written station house order instructed police not to allow anyone to have contact with Davis. Only after confessing was he taken before a magistrate, despite the state rule requiring that an arrested person be brought before a magistrate within a rea- sonable period of time. The Supreme Court ruled Davis’s confession to be involuntary.

The McNabb-Mallory rule applied only to federal law enforcement officers and agencies because it was not based on the Fourteenth Amendment due process doctrine of “fundamental fairness.” It was instead based on the Supreme Court’s inherent supervisory authority over lower federal courts and federal law enforcement. The “time test,” although not applicable to the states, showed that the justices were displeased with heavy-handed police actions in obtaining confessions, a concern that would animate the Miranda decision.

Right to Counsel. The secrecy of police interrogation was a major concern. Without representation by counsel, the defendant is alone and vulnerable to improper police tactics. In two late 1950s cases, Crooker v. California (1958) and Cicenia v. LaGay (1958), dissenting justices argued that voluntary confessions should be excluded on the grounds that defendants’ requests for attorneys were denied. The majority, how- ever, held that a mere denial to see one’s attorney was not in itself a due process violation. This position began to erode in Spano v. New York (1959), which held that overbearing police tactics led to an involuntary confession. Four concurring justices in Spano argued that the defendant had a right of access to counsel, noting that he had been formally indicted before confessing. Gideon v. Wainwright (1963), decided four years later, incor- porated the right to counsel at trial and increased the pressure to view police interrogation as a critical stage in the prosecution. Furthermore, in 1964 the Court in Massiah v. United States (this chapter) held that indicted defendants who had already obtained counsel could not be secretly taped or questioned by the police without the consent of the defendant’s lawyer.

The turning point in the move to replace the voluntariness test with a clearer rule came in Escobedo v. Illinois (1964). It held that a preindictment suspect had a Sixth Amendment right to counsel during police interrogation, but only if the lawyer had been hired before the interrogation began. The Escobedo case was, according to Fred Graham, “enigmatic” because its holding was based on a complicated set of facts, and it was not clear which of these facts would be crucial in extending the right to counsel during interro- gation in later cases.21 In Escobedo, a lawyer was hired by the family of a murder suspect. The lawyer made repeated attempts over a period of three or four hours to see his client at the police station. At one point, Escobedo and his lawyer made eye contact, but the police refused to allow them to meet. The Court held that although Escobedo’s confession was made voluntarily, it was unconstitutional because his Sixth Amendment right to counsel had been violated. Was Escobedo another “special circumstances” case (like Powell v. Alabama and Betts v. Brady regarding the right to counsel), or was it a first step toward requiring attorneys during every police interrogation?

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Interrogation and the Law of Confessions 385

The Court’s opinion muddied the Sixth Amendment basis for its holding by injecting Fifth Amendment concerns: “Without informing him of his absolute right to remain silent in the face of this accusation, the police urged him to make a statement.” Escobedo was an important case, but it was clearly not the final word or a firm rule for the guidance of police interrogation. First, the holding was fact-specific, limiting its future application to other scenarios. Also, it was problematic to base a right to counsel at police interrogation on the Sixth Amendment because the amendment applies to the “criminal prosecution,” which does not commence until formal charges have been issued against a defendant. Escobedo left many questions unanswered. The Supreme Court expected a trickle of appeals designed to clarify the case’s ambiguities but instead received a flood. Within two years it startled the legal community with its monumental Miranda decision. Miranda took a new turn and, “decid[ing] to answer all of the questions at once” placed state confessions law firmly on a Fifth Amendment foundation.22

THE MIRANDA DECISION Miranda was not an incorporation case. The recently incorporated rights to counsel and against self-incrimination gave the Supreme Court the impetus to forge a new approach to establish a definitive confessions rule after three decades of due process cases. The Miranda majority chose the Fifth Amendment, not the Sixth Amendment, as the constitutional foun- dation of confessions law. Miranda was, for a time, one of the most severely criticized cases in the Court’s history, referred to by some as a “self-inflicted wound.” Many lawyers were offended by the unprecedented and legislative-like style of the ruling, while police officials and conservative politicians denounced the Court for its pro-defendant ruling.23

After the Supreme Court decision excluding Ernesto Miranda’s confession, he was retried for rape and convicted in 1967 on the testimony of his common law wife. He was later paroled but continued to get into trouble. Miranda was stabbed to death on January 31, 1976, in the restroom of a cheap bar in Phoenix, Arizona, after a fistfight. Police caught the man who had assailed Ernesto and read him his Miranda warnings.24

Read Case and Comments: Miranda v. Arizona.

An Interpretation of Miranda Although critics saw Miranda as a revolutionary break with the due process voluntariness rule, it can also be seen as an extension of that test for the constitutionality of confessions. The underlying rationale of the Self-Incrimination Clause and the Due Process Clause is the same: forbidding compelled testimony. The voluntariness test had itself evolved over time from outlawing torture to finding that certain psychological pressure tactics were unconstitutional. In this light, Miranda has continued the progressive civilizing approach of the confessions exclusionary rule by attacking the source of undue compulsion.

If the Court, therefore, correctly assessed modern police interrogation as so highly manipulative as to amount to compulsion, Miranda can be seen as a conservative ruling in that it preserved police interrogation. A logical extension of the voluntariness test could have led the Court to rule that all secret interrogation is unconstitutional. The effect of such a rule would have been like the Massiah rule (discussed at the end of this chapter), forbid- ding all questioning of a suspect in the absence of a lawyer.

Miranda can also be seen as a logical and not very extreme extension of the privilege against self-incrimination. As seen above, a witness can invoke the privilege in any official venue when subpoenaed to testify, whether at a criminal trial, civil trial, administrative hear- ing, grand jury proceeding, or legislative inquiry. It makes sense to extend the privilege to a suspect in the station house. A court cannot order a witness claiming the privilege to talk on the witness stand under a threat of a contempt citation and then use what is said against the witness in a criminal trial. Likewise, not protecting a suspect’s ability to remain silent in the station house would entirely nullify the defendant’s absolute right to silence at the trial.IS

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[a] The Supreme Court stated that these facts did not make the confessions unconstitutional under the due process voluntariness test. In Part V of the majority opinion, it applied the general rules of the decision and found that in each case the self-incrimination rights of the defendants had been violated.

[b] The Court clearly specifies the factual predicate of these cases (custodial police interrogation) and the decision’s constitutional basis (the privilege against self- incrimination).

[c] This is disingenuous. As the dissenters state, this case was clearly a constitutional innovation.

CASE AND COMMENTS

Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)

[In four consolidated cases none of the defendants were fully informed of their constitu- tional rights, although some were informed of their right to remain silent. [a] In Miranda v. Arizona, Miranda confessed to a rape after being interrogated for only two hours at a police station. In Vignera v. New York, a robbery suspect questioned by police made an oral admission in the afternoon and a written confession to a prosecutor that evening. In Westover v. United States, local police arrested Westover for a robbery and interrogated him that evening. The next day, FBI agents began to interrogate the defendant at 9 A.M. He was read warnings at noon and confessed at 2:00 P.M. In Stewart v. California, the defendant was interrogated nine times over five days by the police and was held incom- municado until he confessed. He was then taken before an examining magistrate. There was no evidence of threats or violence in any of these cases. The majority opinion dis- cussed the facts of the cases after fifty pages of constitutional analysis.]

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. The cases before us raise questions which go to the roots of our concepts of

American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. [b] More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custo- dial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.

* * * We start here, as we did in Escobedo, with the premise that our holding is not an innova- tion in our jurisprudence, but is an application of principles long recognized and applied in other settings. [c] * * *

* * * Our holding * * * briefly stated is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

I * * * [All the cases here] share salient features—incommunicado interrogation of individ- uals in a police-dominated atmosphere, resulting in self-incriminating statements without full warning of constitutional rights. [d]

An understanding of the nature and setting of this in-custody interrogation is essen- tial to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930s, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police vio- lence and the “third degree” flourished at that time. In a series of cases decided by this Court long after these studies, the police resorted to physical brutality—beatings, hanging, whipping—and to sustained and protracted questioning incommunicado in order to extort confessions. * * *

386

[d] The case is decided not on the specific facts in each of the four consolidated cases, but merely on the fact that in each there was police custodial interrogation and rights were not explained to the defendants. There was no physical or psychological coercion in these cases. A review of interrogation techniques found in police manuals substituted for finding specific case facts.

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* * * Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. * * * [“T]his Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.” * * * [e] Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information about present police prac- tices, however, may be found in various police manuals and texts which document proce- dures employed with success in the past, and which recommend various other effective tactics. * * *

The officers are told by the manuals that the “principal psychological factor contributing to a successful interrogation is privacy—being alone with the person under interrogation.” * * *

To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect’s guilt and from outward appearance to maintain only an interest in confirming certain details. [f] The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, to cast blame on the victim or on society. These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already—that he is guilty. Explanations to the contrary are dismissed and discouraged. * * *

* * * When the techniques described above prove unavailing, the texts recommend they be alter- nated with a show of some hostility. One ploy often used has been termed the “friendly- unfriendly” or the “Mutt and Jeff” act. * * *

The interrogators sometimes are instructed to induce a confession out of trickery. [g] The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a line-up [and to coach a witness to identify the suspect]. * * * A variation on this technique is called the “reverse line-up”:

“The accused is placed in a line-up, but this time he is identified by several fictitious witnesses or victims who associated him with different offenses. It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations.”

* * * From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. [h] In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the precon- ceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must “patiently maneuver himself or his quarry into a position from which the desired objective may be attained.” When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.

[e] Notice the negative attitude toward interrogation. Early findings of brutality or extreme psychological pressure are taken to be a risk in any police interrogation. Thus every custodial interrogation, conducted in secrecy, establishes compulsion under the privilege against self- incrimination.

[f] Are these practices outrageous or simply like high-pressure sales tactics used to get the suspect to admit to the crime?

[h] These examples from police manuals are not scientifically drawn random samples of police activity; nevertheless, there is no reason to believe that they are uncommon. In your opinion, are they inherently coercive?

[g] Is using tricks and lies ethical if it is the only way to get a “guilty” person to confess? What if the suspect is in fact not guilty? Should there be a limit to trickery?

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* * * In the cases before us today, given this background, we concern ourselves primarily with this interrogation atmosphere and the evils it can bring. * * *

In these cases, we might not find the defendants’ statements to have been involuntary in traditional terms. [i] Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. * * * The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice.

It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destruc- tive of human dignity. * * * Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

* * * [Part II of the opinion reviewed the history of the right against self-incrimination in English and American law and its incorporation into the Fourteenth Amendment in Malloy v. Hogan (1964), which established the constitutional jurisdiction for the Court to apply the Fifth Amendment’s privilege against self-incrimination to the states.]

III Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.

It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule- making capacities. [j] Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional strait- jacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effec- tive ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed.

At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. [k] For those unaware of the privilege, the warning is needed simply to make them aware of it— the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. * * *

The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. * * *

[k] The first warning. Are the reasons for it convincing?

[j] The suggestion that other protective techniques could replace the warnings became an extremely controversial point. A more conservative Court used this statement to argue that Miranda warnings are not rules required by the Constitution.

[i] The Court puts the finishing touch on its argument: (1) The self- incrimination clause forbids compelled testimony; (2) secret police interrogation is inherently compelling; therefore (3) safeguards are required in order to “dispel” compulsion.

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The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. [l] This warning is needed in order to make him aware not only of the privilege, but also of the consequences of foregoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system—that he is not in the presence of persons acting solely in his interest.

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. [m] Therefore, the right to have counsel present at the interrogation is indispensable to the pro- tection of the Fifth Amendment privilege. * * *

* * * In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. [n] Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. * * *

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [o] At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individ- ual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.

This does not mean, as some have suggested, that each police station must have a “station house lawyer” present at all times to advise prisoners. * * *

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant know- ingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. [p] * * * Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interro- gation, the burden is rightly on its shoulders.

An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. * * *

* * * The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any state- ment made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to “admissions” of part or all of an

[p] The burden of proof of a voluntary waiver is on the state; the state must produce some proof of a waiver.

[o] Consequences of the warnings. The suspect can “invoke” the privilege and lawfully refuse to answer by “just saying no” when asked to talk by the police, even after answering some questions.

[n] The fourth warning.

[m] The third warning. It is not based on the Sixth Amendment; it is required to protect Fifth Amendment rights.

[l] The second warning.

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offense. [q] The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrim- ination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely “exculpatory.” If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effec- tive waiver required for any other statement. In Escobedo itself, the defendant fully intended his accusation of another as the slayer to be exculpatory as to himself.

The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interro- gation while in custody at the station or otherwise deprived of his freedom of action in any significant way. [r] It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries. * * *

Our decision is not intended to hamper the traditional function of police officers in investigating crime. * * *

* * * In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. * * * There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. [s] Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

* * * [Part IV presented policy arguments in favor of the warnings requirement, noting that warnings were required in England and many Commonwealth nations and were routinely given by FBI agents and military police without any loss of effective law enforcement.]

[Justices Clark (concurring in Stewart v. California), Harlan, and White each wrote dissenting opinions.]

MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting. * * *

I The proposition that the privilege against self-incrimination forbids in-custody interroga- tion without the warnings specified in the majority opinion * * * has no significant support in the history of the privilege or in the language of the Fifth Amendment. * * * The rule excluding coerced confessions matured about 100 years [after the privilege against self- incrimination did,] “but there is nothing in the reports to suggest that the theory has its roots in the privilege against self-incrimination. . . . ” * * * [t]

* * * * * * [T]he Fifth Amendment privilege was . . . extended to encompass the then well- established rule against coerced confessions * * * [in] Bram v. United States. * * *

[t] Recent scholarship casts some doubt on Justice White’s historical argument.25

[s] Some critics feared that the Supreme Court would make all extra-judicial confessions illegal. The Court tries to allay these fears.

[r] This is a critical point. The Fifth Amendment privilege applies prior to formal charges during custodial police interrogation, and not only at judicial-like hearings as the dissenters argued.

[q] This paragraph closes potential loopholes in the Miranda rules. A suspect might be led to say things he thinks will clear him (exculpatory statements) but that instead lead to independent evidence of guilt. These too are covered by the Miranda warnings.

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* * * Bram, however, itself rejected the proposition which the Court now espouses. The question in Bram was whether a confession, obtained during custodial interrogation, had been com- pelled. * * * [T]he Court declared that:

“* * * the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of prison, or was drawn out by his questions, does not necessarily render the confession involuntary; but, as one of the circumstances, such imprisonment or interroga- tion may be taken into account in determining whether or not the statements of the prisoner were voluntary” * * *

* * *

III * * * Rather than asserting new knowledge, the Court concedes that it cannot truly know what occurs during custodial questioning, because of the innate secrecy of such proceedings. [u] It extrapolates a picture of what it conceives to be the norm from police investigatorial manuals, published in 1959 and 1962 or earlier, without any attempt to allow for adjustments in police practices that may have occurred in the wake of more recent decisions of state appellate tri- bunals or this Court. But even if the relentless application of the described procedures could lead to involuntary confessions, it most assuredly does not follow that each and every case will disclose this kind of interrogation or this kind of consequence. Insofar as appears from the Court’s opinion, it has not examined a single transcript of any police interrogation, let alone the interrogation that took place in any one of these cases which it decides today. * * * [T]he factual basis for the Court’s premise is patently inadequate.

* * * * * * [E]ven if one assumed that there was an adequate factual basis for the conclusion that all confessions obtained during in-custody interrogation are the product of compulsion, the rule propounded by the Court would still be irrational, for, apparently, it is only if the accused is also warned of his right to counsel and waives both that right and the right against self-incrimination that the inherent compulsiveness of interrogation disappears. [v] But if the defendant may not answer without a warning a question such as “Where were you last night?” without having his answer be a compelled one, how can the Court ever accept his negative answer to the question of whether he wants to consult his retained counsel or counsel whom the court will appoint? * * * The Court apparently realizes its dilemma of foreclosing questioning without the necessary warnings but at the same time permitting the accused, sitting in the same chair in front of the same policemen, to waive his right to consult an attorney. * * *

* * * By considering any answers to any interrogation to be compelled regardless of the content and course of examination and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled confessions but for all practical purposes forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against compelled self-incrimination the Court has created a limited Fifth Amendment right to counsel—or, as the Court expresses it, a “need for counsel to protect the Fifth Amendment privilege.” * * * The focus then is not on the will of the accused but on the will of counsel and how much influence he can have on the accused. Obviously there is no warrant in the Fifth Amendment for thus installing counsel as the arbiter of the privilege.

In sum, for all the Court’s expounding on the menacing atmosphere of police inter- rogation procedures, it has failed to supply any foundation for the conclusions it draws or the measures it adopts.

[v] Justice White sees a logical flaw in the opinion. If the station house atmosphere is inherently coercive, is it logically impossible for suspects to voluntarily waive their rights in that atmosphere, after being informed of their rights? He assumes that in the future all interrogation will occur with defense counsel present. This has not been the case.

[u] Justice White accuses the majority of fabricating the constitutional element of coercion by assuming that the police manuals describe the reality of every interrogation, without proof of coercion in each specific case.

391

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IV * * *

In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. [w] As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection and who without it can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. * * *

Nor can this decision do other than have a corrosive effect on the criminal law as an effective device to prevent crime. A major component in its effectiveness in this regard is its swift and sure enforcement. The easier it is to get away with rape and murder, the less the deterrent effect on those who are inclined to attempt it. This is still good common sense. * * *

* * *

[w] There is always a trade- off between security and liberty in criminal procedure; Justice White sees little gain in civil liberties by limiting the power of the police in this area.

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There is an irony about Miranda. The Court’s desire—to replace numerous case- specific decisions under the “facts and circumstances” approach of the voluntariness test with one bright-line rule for determining the constitutionality of confessions—was not to be. After Miranda, the Court had to deal with a cascade of cases litigating its meaning. These cases are reviewed in subsequent sections.

Voluntariness after Miranda Miranda v. Arizona did not eliminate the due process voluntariness test. A suspect can obviously be coerced into confessing after being read Miranda warnings. Such a confes- sion is inadmissible under the Fifth or Fourteenth Amendment due process clauses. Additionally, a coerced confession cannot be used to impeach a defendant who chooses to testify at trial.

Mincey v. Arizona (1978) is a blatant example of involuntariness. Rufus Mincey, who was shot and left semiconscious after a shoot-out with a police officer, was brought to a hospital intensive care unit in critical condition and was treated. That evening, Detective Hust went to the intensive care unit, told Mincey he was under arrest for the murder of a police officer, gave him Miranda warnings, and proceeded to ask questions about the shoot-out. Mincey asked repeatedly that the interrogation stop until he could get a lawyer, but Hust continued to question him until almost midnight. Throughout, Mincey was heavily medicated by an intravenous device; tubes were inserted into his throat to help him breathe and through his nose into his stomach to keep him from vom- iting; and a catheter was inserted into his bladder. Mincey could not talk, so answers were written on pieces of paper.

When asked by Detective Hust, “Did you shoot anyone?” it seemed clear to the Court that Mincey’s reply, “I can’t say. I have to see a lawyer,” was evidence of a clear desire not to speak. Yet he was pressed by the detective and made an incriminating state- ment. Justice Potter Stewart wrote:

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It is hard to imagine a situation less conducive to the exercise of “a rational intellect and a free will” than Mincey’s. He had been seriously wounded just a few hours earlier, and had arrived at the hospital “depressed almost to the point of coma,” according to his attending physician. Although he had received some treatment, his condition at the time of [Detective] Hust’s interrogation was still sufficiently serious that he was in the intensive care unit. He complained to Hust that the pain in his leg was “unbearable.” He was evidently confused and unable to think clearly about either the events of that afternoon or the circumstances of his interrogation, since some of his written answers were on their face not entirely coherent. Finally, while Mincey was being questioned he was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus. He was, in short, “at the complete mercy” of Detective Hust, unable to escape or resist the thrust of Hust’s interrogation. (Mincey v. Arizona, 1978)

Despite the fact that Mincey had made some coherent statements, the Court concluded:

It is apparent from the record in this case that Mincey’s statements were not “the product of his free and rational choice.” . . . To the contrary, the undisputed evidence makes clear that Mincey wanted not to answer Detective Hust. But Mincey was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, and his will was simply overborne. Due process of law requires that statements obtained as these were cannot be used in any way against a defendant at his trial. (Mincey v. Arizona, 1978)

Thus, the state could not use Mincey’s statements for impeachment purposes. In a five-to-four decision, the Supreme Court held a confession to be involuntary in

Arizona v. Fulminante (1991). Fulminante, in federal prison for a weapons offense, was suspected of having murdered his stepdaughter. He was befriended by another inmate, Anthony Sarivola, a former police officer who became a paid informant for the FBI. Masquerading as an organized crime figure, Sarivola promised to protect Fulminante against violence from other inmates if they discovered he had killed his daughter, but only if he told Sarivola whether he committed the crime. Fulminante admitted the crime to Sarivola, who later testified at Fulminante’s murder trial. The Supreme Court affirmed the Arizona Supreme Court’s decision that ”the confession was obtained as a direct result of extreme coercion and was tendered in the belief that the defendant’s life was in jeopardy if he did not confess. This is a true coerced confession in every sense of the word.” Both courts drew on common knowledge of the fact that prisoners are known to assault and even murder child abusers and, thus, could conclude that Fulminante had spoken out of fear for his life.

Crane v. Kentucky (1986) held that when a defendant raises the issue of a coerced confession under the Due Process Clause at trial, he must be allowed to introduce evidence of “the physical and psychological environment in which the confession was obtained.” Even if a judge finds a confession to be voluntary in a pretrial hearing, a jury may disagree and find that the confession was involuntary or decide not to give it great weight. Innocent suspects have made voluntary confessions that they later regret. It would be impossible for a defendant alleging a coerced confession to prove it if evidence about the environment in which the confession was taken was excluded.

It is worth keeping in mind that Miranda violations and due process voluntariness rule violations are not entirely distinct. In Withrow v. Williams (1993), a defendant claimed that his Miranda rights were violated when at a police station during an “inter- view” (i.e., supposedly not an interrogation), police told Williams to “give us the truth” or else “we’re simply gonna charge you and lock you up and you can tell it to a defense attor- ney and let him try and prove differently.” In deciding that federal courts could hear Miranda claims under habeas corpus jurisdiction, the Court noted that if it decided other- wise, state prisoners could simply convert Miranda claims into due process claims that their convictions were based on involuntary confessions.

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MIRANDA AS A CONSTITUTIONAL RULE

Attacking the Constitutional Basis of Miranda Theories of Miranda. A theoretical debate with real-world consequences about the nature of Miranda warnings has divided the Court for decades. President Nixon’s con- servative appointees, generally hostile to Warren Court rulings, seemed poised to overrule Miranda26 but instead reinterpreted it in several 1970s cases to say that Miranda warnings were not themselves constitutional rules. As a result, statements taken during custodial interrogation with defective or no warnings, although inadmissible at trial, could be used for collateral purposes. These peripheral purposes included impeaching a defendant who testified at trial or using the statements as a lead to other incriminating evidence. In con- trast, as noted above, statements obtained by “pure” compulsion to testify under a grant of immunity (Fifth Amendment violations), or involuntary confessions produced by egre- gious police behavior (due process violations), cannot be used for collateral purposes.

If Miranda was not a constitutional ruling, as implied by the collateral use cases, then it would appear that the Court had no jurisdiction to impose a supervisory rule on the states, an issue that the Court simply ignored.27 Instead of overruling Miranda, the Court continued to narrow its application in decisions favoring the state and allowing the use of confessions. Having “defanged” the rule, the Court became somewhat supportive of the case, as noted by Chief Justice Warren Burger’s dictum: “The meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date” (Rhode Island v. Innis, 1980, concurring). Reasons for this position included (1) a concern that overruling Miranda might be misread by the police as tacitly condoning abusive police tac- tics, (2) a desire to maintain the symbol of the Court as a guarantor of individual liberties, and, most important, (3) a realization by 1980 that Miranda did not stop police from obtaining confessions. Under this attenuated Miranda regime, a public safety exception was carved out of the rule (New York v. Quarles, 1984).

The Court seemed to shift direction in Dickerson v. United States (2000), holding that a statute purporting to overrule Miranda was void because Miranda was in fact a con- stitutional rule. This, however, did not change the Court’s collateral use position. Chavez v. Martinez (2003) held that the mere failure to read Miranda warnings to a suspect is not a violation of the right against self-incrimination. The use of leads was continued in United States v. Patane (2004), and a “cured statement” use was only qualified in Missouri v. Seibert (2004). These cases are discussed in greater detail later in this chapter.

Collateral Use of Miranda-Violated Statements. Harris v. New York (1971) held that a confession obtained without complete Miranda warnings—that is, in violation of Miranda—could still be used at trial, not to prove guilt but to impeach the credibility of the defendant whose testimony contradicted his earlier confession. This sug- gested that Miranda was not based on the privilege against self-incrimination. Justice William Brennan Jr., dissenting, quoted a passage from Miranda that explicitly stated that incriminating statements taken without the full warnings being given cannot be used to impeach the defendant’s testimony at trial. Chief Justice Burger’s majority opinion, how- ever, got around this by declaring the statement in Miranda to be mere dictum that “was not at all necessary to the Court’s holding and cannot be regarded as controlling.” Recall that New Jersey v. Portash (1979) held that grand jury testimony compelled by a grant of immunity could not be used to impeach the witness at a later trial because such use was a violation of the Self-Incrimination Clause. The Court in Harris began to chip away at the theory that Miranda warnings are constitutional rules.

The Harris ruling was confirmed by Oregon v. Hass (1975). Hass, arrested for theft and burglary, was read Miranda warnings. On the way to the police station, Hass said he wanted to call his attorney. Instead of ceasing to question him, the officer said that Hass

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could do so when they reached the station. Hass then made incriminating statements in the police car. At the trial, the defendant claimed that he was innocent, testifying that a friend impulsively stole a bicycle and threw it into Hass’s truck and that Hass was arrested after the police traced the truck to him. In rebuttal, the officer testified that Hass made incrimi- nating statements in the patrol car after asking for his attorney. The trial court allowed the officer’s testimony to evaluate Hass’s credibility as a witness (i.e., to impeach him) but not as proof of guilt.

The Supreme Court applied the Harris rule and upheld the trial court even though the officer’s continuing interrogation after Hass asked for a lawyer was a Miranda viola- tion. Justice Harry Blackmun, for the majority, wrote that “the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances” (Oregon v. Hass, 1975). Justice Brennan, dissenting, repeated his point in Harris that “[a]n incriminating statement is as incriminating when used to impeach credibility as it is when used as direct proof of guilt and no constitutional distinction can legitimately be drawn.” He noted that once Miranda warnings were given, the state has no incentive to obey the rule, for by continuing to ques- tion, the “police may obtain a statement which can be used for impeachment if the accused has the temerity to testify in his own defense.”

Michigan v. Tucker (1974) continued to undermine Miranda by providing the concep- tual framework that has limited the Miranda ruling. Deficient Miranda warnings were given to Tucker before interrogation (he was not informed of the right to appointed counsel). Tucker gave police the name of a supposedly favorable witness whose statements neverthe- less incriminated him. Nothing that Tucker said was used against him, but evidence derived from his statement (i.e., the witness’s statement) was used against him to prove his guilt of a rape.28

Tucker was important because of Justice William Rehnquist’s reasoning that Miranda warnings are prophylactic rules designed to protect the underlying Fifth Amendment right of silence, but not constitutional rules in their own right. The police fail- ure to give warnings therefore did not violate Tucker’s privilege against self-incrimination but only the Miranda protective rules. Justice Rehnquist, however, based this on a selective reading of Miranda by quoting the following passage: “We cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent com- pulsions of the interrogation process as it is presently conducted” (Miranda v. Arizona, 1966). However, he failed to quote a passage that appeared three sentences later: “However, unless we are shown other procedures which are at least as effective in appris- ing accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed” (Miranda v. Arizona, 1966). It seems that the Warren Court majority intended that Miranda’s mandatory warnings were based on the Fifth Amendment privilege and that the Tucker Court changed the meaning of Miranda.

Nevertheless, the Tucker majority interpreted these words as dictum, and not as a rule. The majority in Tucker concluded that the police did not violate Tucker’s right against compulsory self-incrimination “but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda.” Since a violation of the Miranda warnings was not a violation of the right against self-incrimination, it did not require the exclusion of derivative evidence. The majority added that no additional deter- rence to police misconduct could be expected by the use of evidence derived from a good faith failure to follow the Miranda rules.

Oregon v. Elstad (1985) provides another way in which a violation of Miranda rules did not prevent the use of the defendant’s statements. Police arrested eighteen-year-old Michael Elstad in his home. He was suspected of stealing $150,000 worth of art objects and furnishings from the home of his friend. Just after his arrest, Elstad made incriminat- ing statements to the police upon being questioned about the burglary. He was not warned of his rights. At the sheriff’s offices later in the day, Elstad was again questioned, but this

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time Miranda warnings were read and he initialed a waiver form. He again made incrimi- nating statements, and these statements were admitted into evidence. The Court ruled that the “fruits of the poisonous tree” doctrine did not bar the second confession: It was not “tainted” as a result of the prior, unwarned, admission. Justice Sandra Day O’Connor believed that the police action did not in itself violate the self-incrimination privilege. She noted that “[t]he Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation” (Oregon v. Elstad, 1985). A Miranda default, however, does not preclude other constitutional challenges. The Elstad majority felt that if the first admission had been coerced under the voluntariness test, a later confession might have been invalid.

Justice Brennan dissented strongly. He argued that the Elstad example was a classic ploy designed to break a suspect’s will. The first question might have been asked of eigh- teen-year-old Michael Elstad to “soften him up” into a confessing mood. This made him more willing to waive his rights and talk at the police station, since the “cat was out of the bag.” The majority and the dissenters clearly differed as to whether Miranda is a constitu- tional rule. Justice Brennan believed that “Miranda clearly emphasized that warnings and an informed waiver are essential to the Fifth Amendment privilege itself.”

The Public Safety Exception The doctrinal foundation laid in Harris, Hass, and Tucker bore full fruit in New York v. Quarles (1984), a case that created a public safety exception to Miranda. By creating an explicit exception to Miranda based on a balancing test, the Court seemed to confirm its view that the Miranda warnings were not themselves constitutional requirements.

At 12:30 A.M., two police officers were approached by a woman who told them that she had just been raped by a black male. She described his jacket with the name “Big Ben” printed in yellow letters on the back and told the officers that the man had just entered a nearby supermarket carrying a gun. The officers spotted the man in the supermarket and arrested him after a brief chase through the aisles. When frisked, the man, Benjamin Quarles, was found to be wearing an empty shoulder holster. After handcuffing him, Officer Kraft asked him where the gun was. Quarles nodded in the direction of some empty cartons and responded, “The gun is over there.” Officer Kraft then retrieved a loaded .38-caliber revolver from a carton, formally placed Quarles under arrest, and read him his Miranda rights from a printed card. Quarles said that he would be willing to answer ques- tions. When Officer Kraft asked him if he owned the gun and where he had purchased it, Quarles answered that he did own it and that he had purchased it in Miami.

The New York courts, at every level, excluded Quarles’s initial statement and the gun from evidence in the trial because he had not been read Miranda warnings before the ques- tion was asked, and they also excluded the statement about the ownership and purchase of the gun as being derived from an illegal interrogation. The Supreme Court agreed that the brief scenario in Quarles constituted custodial interrogation by police, a situation that calls for warning a suspect of his rights under Miranda for any statement to be admissible in evi- dence. Nevertheless, the Court (6–3) reversed the New York Court of Appeals, that state’s highest court.

The basis of the Court’s holding was that “this case presents a situation where con- cern for public safety must be paramount to adherence to the literal language of the pro- phylactic rules enunciated in Miranda.” The Court thus injected something like the Fourth Amendment balancing test and an exigent circumstances exception into a Fifth Amendment area. Were Miranda a constitutional rule, this would not be permissible because “the Fifth Amendment’s strictures, unlike the Fourth’s, are not removed by show- ing reasonableness” (New York v. Quarles, 1984), that is, the Fifth Amendment privilege is absolute. Since Quarles creates an exception to the Miranda warnings requirement, the warnings cannot be the same as the privilege because, in theory, an exception cannot be

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made for the privilege. The Court characterized the warnings as “‘practical reinforcement’ for the Fifth Amendment right” (New York v. Quarles, 1984, citing Michigan v. Tucker, 1974). The likelihood of police committing “constitutionally impermissible practices” dur- ing interrogation is lessened by the administration of the warnings.

Justice Rehnquist, writing for the majority, held that

on these facts there is a “public safety” exception to the requirement that Miranda warnings be given before a suspect’s answers may be admitted into evidence, and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity rather than adherence to a police manual is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on . . . the subjective moti- vation of the arresting officer. Undoubtedly most police officers, if placed in Officer Kraft’s position, would act out of a host of different, instinctive, and largely unverifiable motives— their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect. (New York v. Quarles, 1984)

The holding was criticized by three dissenting justices. Justice Marshall wrote that because the “Court in Miranda determined that custodial interrogations are inherently coercive . . . [it] therefore created a constitutional presumption that statements made during custodial interrogations are compelled in violation of the Fifth Amendment and are thus inadmissi- ble in criminal prosecutions” (New York v. Quarles, 1984, Marshall, J., dissenting, empha- sis added). He chided the majority for substituting its view that a threat to public safety existed, when the New York courts unanimously found no threat to public safety: The store was deserted in the middle of the night; there was no indication that Quarles had a confed- erate who might use the gun; the police were certain that the gun was in the immediate area of the arrest; Quarles was handcuffed; and “the arresting officers were sufficiently confi- dent of their safety to put away their guns.” Justice Marshall noted that if there was a gen- uine threat of violence, the officers could violate Miranda to get the weapon, but the statement should not be admissible.

The dissent noted that conservative justices often defer to state court evaluations of the facts in a case. Consequently, the majority’s analysis of the facts seemed wrong and hypocritical. It is as if the majority wanted to create an exception and manipulated the facts of the case to ensure the “proper” outcome. Justice O’Connor concurred, raising a concern that the exception blurred Miranda’s bright-line rule.

Rehabilitating Miranda? In Dickerson v. United States (2000), the Supreme Court finally confronted the issue of whether Miranda was a constitutional ruling. To the surprise of many, the Court held that it is. Charles Dickerson was indicted by a federal grand jury for bank robbery and related crimes. He moved to suppress a statement he had made to FBI agents during an interroga- tion on the ground that he had not received Miranda warnings. The district court granted the motion to suppress because of technical errors in warning Dickerson and specifically ruled that the confession was otherwise voluntary. Federal prosecutors appealed this ruling to the Court of Appeals for the Fourth Circuit, reputed to be the most conservative federal court of appeals in the nation.29 That court found that although the Miranda warnings were defective, the confession was admissible under 18 U.S.C. § 3501, which says that in any federal prosecution a confession “shall be admissible in evidence if it is voluntarily given.”

This federal statute was passed in 1968, shortly after the Miranda decision, expressing political outrage against the decision. Under the law, being advised of one’s right to remain silent is not required for a confession to be admissible but is only one factor to be taken into account to determine if the confession is voluntary. The law sought, in effect, to overrule Miranda. One commentator called it “the most sweeping attack on the Supreme Court since Franklin Roosevelt tried to expand its membership in 1937.”30 The law had not been used by federal prosecutors or the Justice Department prior to the Dickerson case because they did

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not want to create a constitutional clash between the Court and Congress. At this point, the Clinton administration, through a letter from Attorney General Janet Reno to Congress, asserted that insofar as Section 3501 sought to overrule Miranda, it was unconstitutional.

The court of appeals nevertheless held (2–1) that “Congress, pursuant to its power to establish the rules of evidence and procedure in the federal courts, acted well within its authority in enacting § 3501, [and] § 3501, rather than Miranda, governs the admissibility of confessions in federal court.” The stage was set for a showdown between the Supreme Court and Congress over Miranda. It is fundamental to American constitutionalism that Congress can by legislation modify or void a Court-made rule but cannot overrule a Court- made doctrine of constitutional law. When the Supreme Court establishes a constitutional doctrine through its interpretation of a constitutional provision, the only way in which that can properly be modified is by the Court itself overruling its own rulings (e.g., Gideon v. Wainwright overruled Betts v. Brady) or by constitutional amendment (e.g., the first sen- tence of the Fourteenth Amendment “overruled” the Dred Scott case).

In a 7–2 opinion for the Court, Chief Justice Rehnquist, acknowledging that Congress had intended to overrule Miranda, wrote:

We hold that Miranda, being a constitutional decision of this Court, may not be in effect over- ruled by an Act of Congress, and we decline to overrule Miranda ourselves. We therefore hold that Miranda and its progeny in this Court govern the admissibility of statements made during custodial interrogation in both state and federal courts. (Dickerson v. United States, 2000)

The majority opinion in Dickerson declared the federal statute unconstitutional for a num- ber of reasons:

● Chief Justice Rehnquist simply brushed away decades of calling Miranda a prophylactic rule: “[W]e concede that there is language in some of our opinions that supports the view” that Miranda is not a constitutional rule.

● He reasoned, tautologically, that Miranda was not based on the Court’s supervisory power (which applies only to federal courts and agents) because it had applied the Miranda rule to the states from the very beginning.

● Further, the justices in the Miranda case, both the majority and the dissenters, understood the Court’s ruling as a constitutional rule; the Miranda case itself stated that it was giving “concrete constitutional guidelines” to law enforcement officers, a point that was trounced by a later Court in Tucker.

● Another reason adopted the argument of the dissenters in Tucker: The warnings required by Miranda have not been superseded by other methods of securing a suspect’s right to remain silent in the coercive atmosphere of a police station.

● As for cases like Quarles and Harris that created exceptions to Miranda or that allowed col- lateral use of Miranda, the answer was (1) that the Court had also broadened the scope of Miranda in a few cases and (2) that a constitutional rule can have exceptions.

● Chief Justice Rehnquist relied heavily on the concept of stare decisis, or precedent:

Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. * * * While stare decisis is not an inexorable com- mand, particularly when we are interpreting the Constitution, even in constitutional cases, the doctrine carries such persuasive force that we have always required a depar- ture from precedent to be supported by some special justification.

We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. (Dickerson v. United States, 2000, internal cita- tions and quotations omitted)

● A final reason was that the due process voluntariness test “is more difficult than Miranda for law enforcement officers to conform to, and for courts to apply in a consistent manner.”

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Ultraconservative justices Antonin Scalia and Clarence Thomas, dissenting, accurately accused some majority justices of having reversed their prior decisions. Justice Scalia’s dissent also suggests that the majority did not fully establish the constitutionality of Miranda warnings by using phrases like “Miranda is a constitutional decision,” “Miranda is constitutionally based,” and Miranda has “constitutional underpinnings,” without saying “that custodial interrogation that is not preceded by Miranda warnings or their equivalent violates the Constitution of the United States” (Dickerson v. United States, 2000, Scalia, J., dissenting). The dissent viewed the Dickerson decision as constitutionally unprincipled. Chief Justice Rehnquist’s adroit opinion, on the other hand, can be seen as a mature reflection of the fact that constitutional government can be based on understandings— constitutional norms—that develop over time. The decision also signals to Congress that it cannot tread on an area within the preserve of the Supreme Court’s authority.

Dickerson was silent on whether the collateral uses of statements taken in violation of Miranda (e.g., impeachment, derivative use) had to be eliminated now that Miranda was declared to be a constitutional rule, to be consistent with New Jersey v. Portash (1979) and Mincey v. Arizona (1978). Chavez v. Martinez (2003) provided mixed signals. Two police officers were questioning a person about drug dealing in an open area when Oliverio Martinez, a field worker, rode by on his bicycle. Martinez, who had no drugs, was detained and severely injured when a frisk and scuffle led to an officer shooting Martinez five times, leaving him blind and paralyzed. Sergeant Chavez arrived with paramedics and interro- gated Martinez for about ten minutes during a forty-five-minute drive in the ambulance, suspecting that Martinez attempted to murder the officers. Concerned that Martinez might die before providing information or an admission, Miranda warnings were never adminis- tered. Martinez intermittently cried out in pain, begged for treatment, and expressed fear of dying. He answered Chavez’s questions inconsistently, at one point admitting to pointing Officer Salinas’s gun at him, after having denied it.

Martinez, never charged with a crime, sued Chavez and the municipality under Section 1983 for violating his rights under the Self-Incrimination and Due Process clauses by interrogating him without reading Miranda warnings and for abusive interrogation. Five justices remanded the case to decide the due process issue. Justice Kennedy recognized that police interrogation can occur under difficult situations that might involve taking a dying declaration from a suspect, and he noted that there “is no rule against interrogating suspects who are in anguish and pain” in exigency situations (Chavez v. Martinez, 2003). A due process violation would occur if Chavez gave the impression that Martinez would be treated only if he answered the questions. This was the equivalent of the police creating the injuries to Martinez in order to get him to talk and was akin to torture.

As for the self-incrimination issue, all nine justices agreed that the simple failure of a police officer to read Miranda warnings to a suspect prior to custodial interrogation does not violate the suspect’s privilege against self-incrimination. Beyond this agreement, the justices offered sharply different views of the Self-Incrimination Clause. A plurality of four justices (Thomas, Rehnquist, O’Connor, and Scalia), viewing the clause as an exclu- sionary rule, posited that what happens during interrogation, even torture, could never be a violation of the Fifth Amendment privilege because it can only be violated by the introduc- tion of tainted evidence into a criminal trial.31

Justice Kennedy (joined by Justices Stevens and Ruth Bader Ginsburg), dissenting, suggested that “the Self-Incrimination Clause is applicable at the time and place police use compulsion to extract a statement from a suspect.” This position views the Self- Incrimination Clause as more than an exclusionary rule. Although a simple failure to read Miranda warnings is not a violation of the suspect’s privilege against self-incrimination, “an actionable violation arose at once under the Self-Incrimination Clause (applicable to the States through the Fourteenth Amendment) when the police, after failing to warn, used severe compulsion or extraordinary pressure in an attempt to elicit a statement or confes- sion” (Chavez v. Martinez, 2003).

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If Dickerson held that Miranda is a constitutional decision, Chavez v. Martinez left open the specific nature and the effectiveness of the Miranda warnings. Were the warnings in and of themselves constitutional rights? Justice Thomas’s plurality opinion in Chavez continued to describe the warnings as “judicially crafted prophylactic rules” and did not once cite Dickerson. If the failure to warn a suspect cannot lead to civil liability, it means either that the warnings themselves are not constitutional requirements or that only very serious violations of Miranda rise to the level of constitutional violations, which seems to be Justice Kennedy’s minority view.

The most important post-Chavez question was whether the collateral use approach to Miranda law still existed. This has tremendous practical effect because in the 1990s some police departments began to deliberately violate Miranda in order to obtain a statement for impeachment use or to get leads against a suspect.32 When done deliberately, this was known as “interrogation outside Miranda.” For example, if a sus- pect invokes the right to silence or asks for an attorney, according to Miranda, interro- gation must cease. The interrogator may believe that it is worth it to violate the suspect’s Miranda rights to obtain statements that can be used for collateral purposes. This is especially so after the ruling in Chavez v. Martinez that the simple failure to give warnings does not impose any civil liability on police officers. The practical effect of wide-open police flouting of Miranda’s rules would be to severely limit the practical effectiveness of the case.

In 2004, the Court decided two cases, one involving the derivative evidence excep- tion to Miranda and the other involving the cured statement exception. The Court con- tinued to uphold the derivative evidence exception of Michigan v. Tucker (1974) in United States v. Patane (2004), where the violation of Miranda was inadvertent. To the contrary, in Missouri v. Seibert (2004), the Supreme Court held that the cured statement exception of Oregon v. Elstad (1985) did not extend to Miranda violations that are delib- erate. Samuel Patane was arrested by Officer Fox just outside his house for violating a domestic violence restraining order. Fox was accompanied by Detective Benner, who was investigating Patane’s alleged illegal gun possession (he was a convicted felon). Immediately after the arrest, Benner began advising Patane of his Miranda rights but only got as far as the right to silence when Patane said that he knew his rights. No further Miranda warnings were given. Benner continued to question Patane about guns, and Patane said that a Glock pistol was in his bedroom. Benner obtained permission to enter the house and seized the gun where Patane said it was. The government conceded that Patane’s Miranda rights had been violated and that the statements made to Benner were inadmissible.

The Supreme Court held in United States v. Patane (2004) that the gun was admissi- ble. Justice Thomas’s plurality opinion (joined by Justices Rehnquist and Scalia) held that the “fruits of the poisonous tree” doctrine does not exclude physical evidence taken on the basis of information obtained as a result of incomplete Miranda warnings because “police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda” (United States v. Patane, 2004). Justice Kennedy (joined by Justice O’Connor) agreed but felt it was unnecessary for the plurality to suggest that a failure to give warnings might not be a Miranda violation or that as long as an incriminating statement was not admitted into evidence, there were no deterrence concerns. Justice David Souter’s dissent, joined by Justices Stevens and Ginsburg, was based squarely on the need to deter deliber- ate police violations of Miranda. “There is no way to read this case except as an unjustifi- able invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained” (United States v. Patane, 2004). Justice Stephen Breyer, dissenting, would apply the “fruits of the poisonous tree” doctrine to evidence derived from a Miranda violation unless the violation occurred in good faith. Patane leaves open the question of whether a deliberate Miranda violation can be the basis for the introduction of a lead derived from the statement.

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In Missouri v. Seibert (2004), a woman suspected of involvement in a homicide resulting from an arson was awakened at 3 A.M. in a hospital where her son was being treated for burns incurred during the arson. She was taken to a police station, deliberately not read Miranda warnings, and questioned for forty minutes in a suggestive manner designed to elicit an admission of guilt. After she confessed, Seibert was given a twenty- minute coffee break, advised of her Miranda rights, and interrogated after waiving her rights. She made another confession. The issue was whether this deliberate two-step process came under the cured statement rule of Oregon v. Elstad (1985), allowing the use of the second confession. Justice Souter’s plurality opinion (joined by Justices Stevens, Ginsburg, and Breyer) argued that Miranda warnings are designed to provide a suspect with a real choice between talking and not talking. The question-first technique employed in the two-step procedure is designed to render Miranda warnings ineffective by waiting to give them until after the suspect has already confessed. The method effectively disabled Seibert from freely choosing whether to speak and thus undermined a basic purpose of Miranda. This practice is not protected by the Elstad ruling, which does not authorize admission of a confession repeated under the question-first strategy. Unlike the brief and tentative unwarned question in Elstad, here the questioning was systematic, exhaustive, and managed with psychological skill.

Justice Breyer concurred on the ground that “[c]ourts should exclude the ‘fruit’ of the initial unwarned questioning unless the failure to warn was in good faith.” This made clear the distinction between inadvertent and deliberate failures to administer warnings to suspects. Justice Kennedy also concurred in the judgment of the Court. He wrote that not every Miranda violation leads to the exclusion of evidence, and so he supported the exist- ing exceptions, including Elstad. He agreed with Justice Souter’s conclusion and wrote that the two-step procedure “relies on an intentional misrepresentation of the protection that Miranda offers and does not serve any legitimate objectives that might otherwise jus- tify its use.” However, he appeared inclined to give police more leeway in the future in how interrogations and warnings can be structured: “The admissibility of postwarning state- ments should continue to be governed by the principles of Elstad unless the deliberate two- step strategy was employed.” Thus he suggested that a two-step procedure may be allowable where there is “a substantial break in time and circumstances” between the two interrogation sessions.

Justice O’Connor (joined by Justices Rehnquist, Scalia, and Thomas) dissented in a formalistic opinion that, while recognizing the psychological impact of a two-step interro- gation, noted that the Court in Elstad refused “to ‘endow’ those ‘psychological effects’ with ‘constitutional implications.’” Further, the dissent would shift confessions law back to the voluntariness standard: “I would analyze the two-step interrogation procedure under the voluntariness standards central to the Fifth Amendment.” This would harken back to Bram v. United States (1897), which ruled that involuntary confessions violated the privi- lege and would be a way for the Court to sidestep Miranda in many circumstances.

The decisions in Patane and Seibert are not the last word on the collateral use excep- tions under Miranda. An open question following Seibert involves the length of the break between the first, non-Mirandized, and the second, Mirandized, interrogation sessions. Given the Court’s focus on the specific policies underlying different exceptions, it seems likely that the impeachment collateral use will continue, as it is designed to prevent a defendant from taking advantage of a misrepresentation of what was said before taking the stand.

INTERPRETING MIRANDA Miranda v. Arizona (1966) spawned scores of cases that interpreted each particular rule that is part of the decision. For the most part, the rulings have provided sufficient flexibil- ity to the police to ensure that the rules do not unduly hamper interrogations. In some areas, however, the Court has strengthened protections for suspects being interrogated.

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Adequacy of Warnings Police officers need not use the precise words found in Miranda, or any rigid formula, when reciting the four warnings to a suspect prior to interrogation. They must, however, adequately convey the substance of each warning (California v. Prysock, 1981). Randall Prysock, a minor, was arrested for murder and declined to talk to his interrogator, Sergeant Byrd. His parents spoke with Randall at the sheriff’s office, and he agreed to talk. In a taped interrogation, Byrd informed Randall and his parents of Randall’s right to silence, of the fact that incriminating evidence would be used against him, of his right to have a lawyer present before and during questioning, and of his right, as a juvenile, to have his parents present. Byrd stated the right to have counsel provided for an indigent person with these words: “You all, uh—if—you have the right to have a lawyer appointed to represent you at no cost to yourself.” The Supreme Court majority found that “[i]t is clear that the police in this case fully conveyed to respondent his rights as required by Miranda.” Justice Stevens dissented because, as the California courts found, the warning failed to inform Prysock “that the services of a free attorney were available prior to the impending ques- tioning.” It was more likely that Prysock would have decided not to talk until he had a lawyer had the warning been clearer.

In Duckworth v. Eagan (1989), the Court again refused (5–4) to find somewhat “nonstandard” language in the warnings given to a defendant to be inadequate. Eagan was told, as part of otherwise complete Miranda warnings:

You have a right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer. (Duckworth v. Eagan, 1989, emphasis added)

Chief Justice Rehnquist, for the majority, noted that the warnings as a whole “touched all of the bases required by Miranda.” The additional phrase that a lawyer will be appointed “if and when you go to court” merely informs the suspect of the normal routine of how lawyers are appointed. He also noted that under Miranda, lawyers need not be producible on call, nor do police stations need to have attorneys on the premises at all times to advise suspects.

Justice Marshall, for the dissenters, thought the warnings given here would mislead the average suspect into believing that only suspects who could afford lawyers could have one immediately; others “not so fortunate” must wait. Also, “a warning qualified by an ‘if and when’ caveat still fails to give a suspect any indication of when he will be taken to court. Upon hearing the warnings given in this case, a suspect would likely conclude that no lawyer would be provided until trial” (Duckworth v. Eagan, 1989, Marshall, J., dissenting). The dissents in Prysock and Eagan aimed at making Miranda protections clear and unambiguous to defendants, even to the point of expanding the content of the required warnings. The majority opinions adhere more closely to the contours of Miranda on this issue.

The Supreme Court has not added new warnings or additional information to the four basic warnings (Colorado v. Spring, 1987). Spring was questioned twice while in jail, about three months apart, first by federal agents and a second time by Colorado officers. Complete Miranda warnings were administered both times, and Spring signed waiver forms. The federal agents questioned Spring about a firearms violation. They knew he was a homicide suspect and asked him, during the questioning, if he had ever shot anyone. “Spring admitted that he had ‘shot [a] guy once.’” This statement was later used in evi- dence against him in his Colorado murder trial. The Supreme Court held that it was not necessary, under Miranda, for the federal officers to tell Spring that they knew he was a

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murder suspect or that he would later be approached by Colorado officers about that crime. “The Constitution does not require that a criminal suspect know and understand every pos- sible consequence of a waiver of the Fifth Amendment privilege. . . . Here, the additional information could affect only the wisdom of a Miranda waiver, not its essential voluntary and knowing nature.” Justice Marshall, dissenting, saw this as a psychological ploy designed to undermine Spring’s will to remain silent. Under these circumstances, he argued, a failure to give the suspect additional information nullified the voluntary, know- ing, and intelligent nature of the waiver of rights, making the confession unconstitutional.

Waiver of Rights Miranda v. Arizona (1966) held that if a confession is obtained, “a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his privilege against self incrimination and his right to retained or appointed counsel.” The Court allowed an oral waiver but stated that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a con- fession was in fact eventually obtained.”

The “heavy burden” of proving a voluntary waiver was met in North Carolina v. Butler (1979). Butler was read his rights and refused to sign a waiver form. The officer told him that he did not have to speak or sign the form but that he wanted to talk to Butler. Butler replied, “I will talk to you, but I am not signing any form.” Justice Stewart ruled this a valid waiver:

An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either neces- sary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda mere silence is not enough. That does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indi- cating waiver, may never support a conclusion that a defendant has waived his rights. (North Carolina v. Butler, 1979)

The majority found, after examining the facts and circumstances, that the defendant had knowingly and voluntarily waived his rights. The minority view, expressed by Justice Brennan for three dissenting justices, interpreted Miranda to require an affirmative waiver. They therefore considered Butler’s confession invalid. While an affirmative waiver, such as signing a Miranda form, is the normal practice today, Butler indicates that where the state meets its heavy burden of proving a voluntary waiver, a verbal agreement to speak can constitute a waiver of rights. Butler is an example of the Court’s reluctance to strictly enforce the rules of Miranda.

The “heavy burden” was not met in Tague v. Louisiana (1980), where the state pro- duced no evidence to show that the defendant knowingly or voluntarily waived his rights. In Butler, the record indicated that the full complement of warnings was read and that the defendant understood them. In Tague, the arresting officer who testified at the hearing to suppress the confession could not recall whether the defendant understood his rights. Without a record, it was an error to presume that the suspect understood the warnings.

Connecticut v. Barrett (1987) held that a suspect can partially waive Miranda rights. After warnings were read to him, Barrett said he was willing to talk to the police but would not sign a statement without a lawyer present. As a general rule, questioning should have ceased. In this case, however, Barrett was very clear that he was willing to talk about the crime but wanted a lawyer’s advice as to whether he should sign a statement. He repeated this at his trial. The Supreme Court held his incriminating statements to be admissible. Here, his “affirmative announcements of his willingness to speak with the authorities” overrode his limited request for a lawyer. This is an exceptional case, and the general rule is that a request for a lawyer ends a confession session.

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Termination and Resumption of Questioning Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off ques- tioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. (Miranda v. Arizona, 1966)

Chief Justice Warren, an experienced former prosecutor, knew it was quite common for interrogating officers to badger suspects—that is, to continue questioning them even after they invoke their right to remain silent. Although the passage may seem clear on its face, the Supreme Court later thought that it was ambiguous:

This passage . . . does not state under what circumstances, if any, a resumption of questioning is permissible. The passage could be literally read to mean that a person who has invoked his “right to silence” can never again be subjected to custodial interrogation by any police officer at any time or place on any subject. Another possible construction of the passage would char- acterize “any statement taken after the person has invoked his privilege” as “the product of compulsion” and would therefore mandate its exclusion from evidence, even if it were volun- teered by the person in custody without any further interrogation whatever. Or the passage could be interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite. (Michigan v. Mosley, 1975)

Richard Mosley was arrested for a robbery. During questioning at Detroit police headquar- ters, after having been read his rights, Mosley said he did not want to talk about the case, whereupon questioning ceased. A few hours later, Mosley was taken from his fourth-floor cell to the homicide division on the fifth floor of the same building. He was read his rights, agreed to talk, and made an incriminating statement that led to evidence that was used to convict him of a homicide. The Supreme Court ruled that Mosley’s second statement was admissible at trial. Justice Stewart fashioned a “facts and circumstances” rule that allows the police to question a defendant who has invoked his rights about an entirely different crime after a lapse of time. Mosley’s statement was admissible in evidence because he was properly warned and never requested a lawyer. Also, when he had asked earlier that ques- tioning cease, his request was immediately honored. The mere fact that he once terminated the interrogation, however, did not bar questioning for a different criminal act.

The Mosley test is treated as a “totality of the circumstances” test. Lower courts have identified five Mosley factors that support the use of a statement after a suspect has invoked his or her right of silence: (1) Initial Miranda warnings were given; (2) police immediately ceased interrogation when the suspect invoked the right to silence; (3) a significant time period elapsed between the two interrogations; (4) a fresh Miranda warning was given before the second interrogation; and (5) the second interrogation was for a different crime than that investigated in the first interrogation or was triggered by new circum- stances (e.g., a confession by a confederate).33

Invoking the Right to Counsel [A]n individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation. . . . This warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. (Miranda v. Arizona, 1966)

Once a defendant claims a desire to see an attorney, questioning must stop. The Supreme Court has, with a few exceptions, interpreted this requirement favorably for suspects.

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For example, in Smith v. Illinois (1984), an eighteen-year-old robbery suspect, while in custody, was read the required Miranda warnings. Told that he had a right to consult with a lawyer and have a lawyer present while being questioned, he replied, “Uh, yeah. I’d like to do that.” The officer continued to advise Smith of his rights and asked, “Do you wish to talk to me at this time without a lawyer being present?” Smith replied, “Yeah and no, uh, I don’t know what’s what really.” To this, the officer said, “Well. You either have [to agree] to talk to me this time without a lawyer being present and if you do agree . . . you can stop at any time you want to.” Smith replied, “All right. I’ll talk to you then.” He sub- sequently confessed.

The Court found that Smith invoked his right to counsel by his first statement in a clear and unambiguous way. While the statements made after the first request for counsel may have been ambiguous, the Court held that “[w]here nothing about the request for counsel or the circumstances leading up to the request would render it ambiguous, all ques- tioning must cease” (Smith v. Illinois, 1984). The Court also ruled that “an accused’s postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself. Such subsequent statements are relevant only to the distinct question of waiver.” Justice Rehnquist, writing for three dissenters, believed that the interrogation had not yet begun but that police were still in the process of giving Smith his warnings. He noted that Smith had not been badgered. Justice Rehnquist felt that the Miranda warning process should be examined in its totality. The holding of Smith v. Illinois, however, demonstrates that invocation of the right to counsel is defined strictly by the Supreme Court.

Nonlegal Advisers. The Court’s strict posture regarding requests for counsel is not extended to requests for help from other individuals or officials. In Fare v. Michael C. (1979), a juvenile in custody asked to see his probation officer during a murder interroga- tion. Justice Blackmun held that a request for a probation officer was not equivalent to a Miranda request for an attorney. “The per se aspect of Miranda [was] based on the unique role the lawyer plays in the adversarial system of criminal justice.” A probation officer is a state employee who is a peace officer and does not act unequivocally on behalf of the suspect. Justice Marshall dissented (joined by Justices Brennan and Stevens), reinterpret- ing Miranda to say that questioning should stop whenever a juvenile requests an adult who is obligated to represent his or her interests. He suggested that it is unrealistic to expect a juvenile to call for a lawyer; it is more likely for a youth to turn to parents or another adult, such as a welfare worker, as the only means of securing legal counsel. However reasonable this point is, the Court was not willing to expand Miranda rights.

Third-Party Involvement. What happens if third parties—such as parents, friends, or relatives—request an attorney for suspects being held by the police, even though the accused themselves have not invoked their Miranda rights? The Court has ruled that this is not an invocation of Fifth Amendment rights by the suspect personally, and any confession made while an attorney is trying to contact the suspect does not violate the Miranda rule.

In Moran v. Burbine (1986), Brian Burbine was arrested for breaking and entering and was suspected of an earlier murder. After his arrest, his sister called the public defender’s office to obtain an attorney’s assistance. Allegra Munson, a staff attorney, called the police department. Advised that Burbine was in custody, she told the police, over the telephone, that she was representing him in the event he was questioned or placed in a lineup. The unidentified officer told Munson that Burbine would not be questioned that night. An hour later, however, police did Mirandize and question Burbine, who waived his rights and ultimately made incriminating statements.

Burbine raised issues of waiver and the right to counsel. Regarding waiver, Justice O’Connor, for the majority, held that “[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity

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to comprehend and knowingly relinquish a constitutional right.” Even the officer’s deception of attorney Munson, whether inadvertent or not, unethical or not, does not change the fact that Burbine knowingly and intelligently waived his rights. The Court refused to add a requirement to Miranda that the police must inform a defendant of an attorney’s attempts to reach him or her, citing practical problems that such a require- ment would raise.

That someone had procured counsel for Burbine before he was questioned did not change the complexion of his rights. Justice O’Connor stated:

[T]he suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel. The Sixth Amendment’s intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more than it is to protect a suspect from the consequences of his own candor. Its purpose, rather, is to assure that in any “criminal prosecutio[n]” the accused shall not be left to his own devices in facing the “prosecutorial forces of organized society.” (Moran v. Burbine, 1986)

Also, since Burbine had not yet been charged by a grand jury or by information, the Sixth Amendment right to an attorney did not yet apply. The majority refused to apply Escobedo v. Illinois, which had come to be reinterpreted as a case concerned more with the right against self-incrimination than the right to counsel. In effect, the Escobedo ruling became a dead letter.

Justice Stevens wrote a scathing dissent. “Until today, incommunicado questioning has been viewed with the strictest scrutiny by this Court; today, incommunicado question- ing is embraced as a societal goal of the highest order that justifies police deception of the shabbiest kind” (Moran v. Burbine, 1986). He noted that the rulings of many state courts and the standards of the American Bar Association find that statements taken after the deception of a client’s attorney should be excluded from evidence. He noted that police “interference with communications between an attorney and his client is a recurrent prob- lem” and was concerned that the ruling in Moran would do nothing to curb this kind of improper behavior.

Termination and Resumption of Questioning. The Supreme Court pro- tects the rights of suspects who invoke the right to counsel more strictly than those who ter- minate questioning without asking for the assistance of counsel. In Edwards v. Arizona (1981), Robert Edwards was arrested for robbery, burglary, and murder. Questioned at the police station after being given proper Miranda warnings, he told the officers that he wanted to “make a deal,” but the police terminated the discussion when he said, “I want an attorney before making a deal.” The next day, detectives came to the lockup and reinterro- gated him. After playing him the taped statement of an alleged accomplice, Edwards agreed to talk as long as it was not tape-recorded, and he implicated himself in the crime. The Supreme Court reversed his conviction. Although a person may validly waive rights, Justice Byron White, for the majority, held that

when an accused has invoked his right to have counsel present during custodial interroga- tion, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further com- munication, exchanges, or conversations with the police. (Edwards v. Arizona, 1981, emphasis added)

Oregon v. Bradshaw (1983) dealt with the issue of the suspect’s initiating further ques- tioning. In this case, interrogation ceased after Bradshaw requested counsel. The Court held that further questioning was properly initiated by Bradshaw’s question during the

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trip between the police station and jail: “Well, what is going to happen to me now?” Bradshaw was again read his rights, and in a “general conversation,” he agreed to take a lie detector test. The next day, Bradshaw took a lie detector test, preceded by Miranda warnings, that resulted in an incriminating admission. A four-justice plurality said that Bradshaw’s question, although ambiguous, “evinced a willingness and a desire for a gen- eralized discussion about the investigation.” A four-justice dissent, written by Justice Marshall, found this interpretation placed on Bradshaw’s words by the plurality to be pre- posterous:

If respondent’s question had been posed by Jean-Paul Sartre before a class of philosophy stu- dents, it might well have evinced a desire for a “generalized” discussion. But under the cir- cumstances of this case, it is plain that respondent’s only “desire” was to find out where the police were going to take him. (Oregon v. Bradshaw, 1983)

The Supreme Court, in Davis v. United States (1994), held that in order to invoke the protection of Edwards, the request for counsel must be made clearly. Naval investigators suspected that Robert L. Davis beat another sailor to death with a pool cue. Davis was arrested, was advised of his rights under military law, and waived his rights to remain silent. An hour and a half into the interview, Davis said, “Maybe I should talk to a lawyer.” A Navy investigator testified:

We made it very clear that we’re not here to violate his rights, that if he wants a lawyer, then we will stop any kind of questioning with him, that we weren’t going to pursue the matter unless we have it clarified is he asking for a lawyer or is he just making a comment about a lawyer, and he said, “No, I’m not asking for a lawyer,” and then he continued on, and said, “No, I don’t want a lawyer.” (Davis v. United States, 1995)

The investigators took a short break and then reminded Davis of his rights to remain silent and to counsel. They continued the interview for another hour, and at that point Davis said, “I think I want a lawyer before I say anything else.” Questioning then ceased. Davis made an incriminating statement after saying, “Maybe I should talk to a lawyer.” The Court held that the statement was admissible and that Davis’s rights under Edwards were not violated.

Analytically, there are three possible options to determine if a suspect’s mention of a lawyer invoked the right to counsel: (1) Any mention of counsel, however ambiguous, invokes counsel; (2) the Edwards protection is invoked if the suspect’s request meets a “threshold” standard of clarity; or (3) whenever a suspect mentions a lawyer, questioning must cease, but interrogators may ask “narrow questions designed to clarify the earlier statement and the [suspect’s] desires respecting counsel.” The Court selected the second option.

Noting that Edwards’s prohibition on questioning is not itself a constitutional right but, like the Miranda rule, a protection for the Fifth Amendment, Justice O’Connor, writ- ing for the Court, held that “after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney.” Justice O’Connor said that asking “clarifying questions” (option number three), while good police practice, is not required. Davis upholds the bright-line rule of Edwards by not forcing interrogating officers “to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he hasn’t said so, with the threat of suppression if they guess wrong.”

Although the Bradshaw plurality strained in order to rule in favor of the state, and Davis burdens a suspect’s rights under Edwards, the following cases show that, for the most part, the Supreme Court has interpreted the Edwards “bright-line rule” in favor of suspects.

For example, Michigan v. Jackson (1986) held that a suspect invokes the right to counsel for interrogation purposes when, at a formal arraignment, the suspect tells a judge that he or she wants a lawyer. Police officers present at Jackson’s arraignment

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were bound by the Edwards rule and could not lawfully interrogate him simply by read- ing him his Miranda warnings. And in Arizona v. Roberson (1988), the Court held that once a suspect asks to see a lawyer before speaking, this knowledge applies not only to the officer who first Mirandized the suspect but to every officer in the same agency. This is a necessary corollary to the Edwards rule since it would be too easy for police officers to sidestep the Edwards rule by claiming ignorance of an invocation of rights by the sus- pect. Justice Stewart noted that “custodial interrogation must be conducted pursuant to established procedures, and those procedures in turn must enable an officer who pro- poses to initiate an interrogation to determine whether the suspect has previously requested counsel.” In a well-run police department, an officer who questions a suspect should know which other officers have previously questioned him and should be apprised of any request for counsel.

Support for the Edwards rule continued in Minnick v. Mississippi (1990). A suspect invoked the right to counsel during an interrogation, was allowed to consult with a lawyer, and was thereafter interrogated without counsel present. He made an admission during the second interrogation. The Court held, in an opinion by Justice Kennedy, that simply allow- ing the suspect to confer with counsel does not satisfy Edwards. A suspect who asks to speak to a lawyer is demanding a right to have a lawyer present during interrogation. Unless a subsequent uncounseled conversation is initiated by the suspect, as required by Edwards, the police cannot reinterrogate. The Court emphasized that a different standard would dilute the clarity of Edwards’s bright-line rule; it could create confusion whereby a suspect would gain Edwards protection at several points during custody by invoking the right to counsel and then lose it after conferring with an attorney.

Justice Kennedy listed several benefits of maintaining the Edwards rule. It prevents the police from badgering suspects; it conserves judicial resources that would be expended in making factually complex voluntariness determinations; it avoids the burden on officials to determine when a prior consultation with counsel is sufficient to create a waiver; and it prevents counsel from delaying meetings with clients so as to preserve their Edwards’s protections.

Justice Scalia dissented, joined by Chief Justice Rehnquist. He stressed that both Miranda and Edwards were prophylactic and not constitutional rules and that Edwards sets a higher standard for waiver of rights than that of Johnson v. Zerbst (1938). He believed that the Court in Minnick established an irrebuttable presumption (i.e., virtually a firm rule) against waiving the right to counsel. Instead, he would allow the state to prove— after an invocation of the right to counsel and after counsel has been provided—that a con- fession was made knowingly and voluntarily.

Defining Custody By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or deprived of his freedom of action in any significant way. (Miranda v. Arizona, 1966)

The Supreme Court expanded Miranda’s definition of police custody beyond the station house. The basic question is this: Does the setting in which a confession is given create the compulsion contemplated by the Fifth Amendment privilege that brings the Miranda requirement and its exclusionary rule into play? Is the interrogation setting coercive? This eliminates the Sixth Amendment “focus” or “target” test of Escobedo and of grand jury procedure that forbids questioning the target of the investigation. This is appropriate because the Fifth Amendment does not forbid interrogation but looks instead to see whether the questioning is accompanied by compulsion.

Home. Being questioned in one’s own home may be custodial depending upon the facts. There was custody in Orozco v. Texas (1969) when police entered the defendant’s

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house at 4 A.M. and questioned him while he was under arrest, not free to leave, and surrounded by police officers. There was no custody in Beckwith v. United States (1975). Beckwith was the target of a criminal tax investigation. Internal Revenue Service (IRS) agents came to his home during the day, politely requested admittance, and gave him time to finish dressing. The interview was conducted in a friendly and relaxed manner at Beckwith’s dining room table. He was not pressed to answer ques- tions and was told at the beginning of the interview that he had a right to refuse to answer questions. On these facts, the interview was not conducted in custody; therefore, Miranda warnings did not have to be given even though Beckwith, as an investigation target, could have legally refused to answer questions had he been subpoenaed.

Prison. Mathis v. United States (1968) seems to hold that all interrogations of inmates that occur in prison must be preceded by Miranda warnings. IRS agents interviewed Mathis in prison, without issuing Miranda warnings, about tax issues unrelated to his prison conviction. Based on his custody status, the Supreme Court found a Miranda viola- tion and overturned the conviction. Justice White, dissenting, believed that the underlying rationale of Miranda “rested not on the mere fact of physical restriction but on a conclu- sion that coercion—pressure to answer questions—usually flows from a certain type of custody, police station interrogation,” of a suspect. Since Mathis was in familiar surround- ings when questioned, even though confined, Justice White felt he was under no pressure to talk.

Police Station. Interrogation in a police station does not become custodial merely because of the location; it depends instead on the circumstances of the interrogation atmos- phere. The majority in Oregon v. Mathiason (1977) found no custody or significant cur- tailment of freedom of action when a suspect voluntarily complied with a police request that he come to the station house for an interview. Carl Mathiason, a parolee, was identi- fied as a probable burglar. A police officer left a card at Mathiason’s residence asking him to call. A meeting was held at the police station at Mathiason’s convenience. The officer shook Mathiason’s hand when he came to the station, and they met in a closed office with the officer sitting across a desk. The officer falsely told Mathiason that his fingerprints were found, whereupon he confessed. Miranda warnings were then read, and another con- fession was taken.

The Court concluded that Mathiason was not in custody before he confessed, and so no Miranda warnings had to be read. The Court said that “[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.” This kind of pressure can be thought of as “back- ground radiation” that attaches to police officers and is different from the heightened com- pulsion that occurs when a person is taken into custody. Justice Marshall dissented. He felt that Mathiason’s freedom of movement was curtailed in a true sense and that he was in custody even though not formally placed under arrest. The Court reached the same result in California v. Behler (1983) on similar facts, except that the defendant was not a parolee and he went voluntarily to the police station to tell the police that he was at the scene of a homicide.

The test of custody is an objective determination of whether the suspect was deprived of freedom in any significant way. In Stansbury v. California (1994), a police detective investigating the abduction and rape-murder of a ten-year-old girl questioned Robert Stansbury, one of two ice cream truck drivers whom the girl had spoken to on the day she was killed. Stansbury was not read Miranda warnings because the detective thought the other driver was the likely suspect. During the interview, Stansbury described a borrowed car he drove on the night of the murder that was similar to a description of the

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car given by a witness. This aroused the officer’s suspicion, and in his mind he focused on Stansbury as a suspect. Stansbury had no way of reading the officer’s mind. The officer did not, by word or deed, convey to Stansbury that he was not free to leave. Under the objective standard, therefore, Stansbury was not yet in custody, and his incriminating statement about the car was admissible. As the questioning continued, Stansbury said that he had prior convictions for rape, kidnapping, and child molestation. At this point, the officer terminated the interview and another officer read Stansbury his Miranda warnings. The Court ruled that “an officer’s subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody.”

In Yarborough v. Alvarado (2004), the Supreme Court considered whether youth and inexperience would turn a station house interview into a custodial interrogation but failed to issue a definitive ruling on this point. Reasons for believing that the seventeen-year-old suspected of being an accessory to a murder was not in custody included these facts: The police did not bring him to the station, he was not threatened, his parents were told the interview “was not going to be too long,” the detective focused on the acts of the shooter, she appealed to Alvarado’s interest in telling the truth, and at the end of the interview, Alvarado went home. Other factors pointed to custody: The interview took place at the police station and lasted two hours; Alvarado was not told he was free to leave; he was brought to the station by his parents, making control over his movement questionable; and his parents were not allowed to be pres- ent at the interview. Justice Kennedy’s five-to-four majority opinion allowed that rea- sonable jurists could differ as to whether Alvarado was in custody, and because of the general nature of the issue of custody and the structure of federal habeas corpus law, it was not unreasonable for the state courts to decide that Alvarado was not in custody. Justice O’Connor concurred, noting that Alvarado’s age was a factor and that it might be unreasonable to find that a younger suspect questioned under similar circumstances was not in custody.

Probation Interview. The Supreme Court held in Minnesota v. Murphy (1984) that a probation interview is not custody for Miranda purposes, even though a probationer is legally required to attend probation interviews and a condition of probation is that he or she answer all questions truthfully. The probationer, Marshall Murphy, was not under arrest, nor was his freedom of movement seriously restrained. In this case, Murphy’s pro- bation officer planned in advance to ask him about previous crimes in an effort to elicit incriminating information. She gave Murphy no prior warning of such questions. He admitted to previously committing a rape and murder, and the statement to the probation officer was admissible in his first-degree murder trial.

The reason Murphy’s statement was not compelled is that, except for the Miranda situation, the Fifth Amendment privilege against self-incrimination is not self-executing. Incriminating statements are not automatically excluded simply because a person makes them to a listener. With the exception of a police custodial interrogation, in which a person must be informed of his rights, a person must claim the privilege in order to rely on it. Once a person utters an incriminating statement, it is presumed voluntary, and the listener can tell what he or she heard to prosecutorial authorities (or anyone else) and may testify in court as to what was heard.

Murphy claimed that the probation condition that required truthful answers to the probation officer’s questions amounted to compulsion. The Court disagreed. The proba- tioner is in a similar situation as a witness subpoenaed before a grand jury. Both are legally compelled to attend and to answer truthfully, and they are not granted immunity. The probation conditions did not deprive Murphy of his Fifth Amendment rights. He could have refused to answer the questions that could have incriminated him. Murphy claimed that he feared revocation of probation if he did not answer. There was no proof,

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however, that Minnesota law or practice punished a probationer who claimed the protection of the Fifth Amendment.

Traffic Stops. A motorist stopped for a moving violation, whether a misdemeanor or a felony, such as speeding or operating under the influence of drugs or alcohol, is detained for the time it takes to write a ticket or to proceed to an arrest. Writing for a nearly unani- mous Court in Berkemer v. McCarty (1984), Justice Marshall held that “persons temporar- ily detained pursuant to” police roadside stops of vehicles for traffic violations “are not ‘in custody’ for the purposes of Miranda.” Such stops do not significantly restrain the free- dom of movement to such an extent as to deprive them of their will, as contemplated by Miranda, for two simple reasons. First, “detention of a motorist pursuant to a traffic stop is presumptively temporary and brief.” Second, the stop occurs in public so that the motorist does not feel completely at the mercy of the police. Thus, although the motorist is detained, these factors “mitigate the danger that a person questioned will be induced ‘to speak where he would not otherwise do so freely’” (Berkemer v. McCarty, 1984, quoting Miranda). The stopped motorist is far less likely, under this reasoning, to be coerced into giving up Fifth Amendment rights.

McCarty was stopped by a trooper who saw his car weaving in traffic. After he failed a field sobriety test, he was told he would be taken into custody. Asked if he had taken any intoxicants, McCarty said that “he had consumed two beers and had smoked several joints of marijuana a short time before.” At the jail, McCarty was again asked questions and gave incriminating answers. At no time were Miranda warnings read. McCarty’s roadside state- ments were admitted into evidence.

Berkemer v. McCarty, however, did hold that once a motorist has been arrested or taken into custody on traffic felony or misdemeanor charges, Miranda warnings must be read prior to interrogation. The Court equated traffic misdemeanors with felonies in order to uphold the “simplicity and clarity of the holding of Miranda.” An exception from warnings for traffic misdemeanors would create confusion and the potential for endless litigation. For example, some crimes escalate from misdemeanors to felonies depending on the number of prior convictions, and it is not clear at the time of the vehi- cle stop whether a driving offense is a misdemeanor or felony. Thus admissions made by McCarty on the roadside were admissible, but those made at the police station were inadmissible.

Pennsylvania v. Muniz (1990) further clarified the application of Miranda when a driver is stopped for driving under the influence (DUI) and is ordered to undergo a field sobriety test. The Supreme Court held that Miranda warnings were not required simply for stopping a driver for DUI. The fact that the driver’s speech is slurred, however incriminat- ing, does not come under Miranda because physical inability to articulate words is not tes- timonial evidence. Similarly, ordering a driver to perform and videotaping standard physical sobriety tests—the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test—are not testimonial. The officer ordered the DUI suspect to perform the tests in “carefully scripted instructions as to how the tests were to be performed. These instructions were not likely to be perceived as calling for any verbal response and therefore were not ‘words or actions’ constituting custodial interrogation.” As a result, Miranda warnings are not required. Furthermore, an officer can ask a driver’s name, address, height, weight, eye color, date of birth, and current age. The Court held that answers to these ques- tions are admissible under a “routine booking question” exception to Miranda. Biographical data needed to complete booking or pretrial services and requested for record-keeping purposes only are reasonably related to police administrative concerns. In this case, Muniz made unsolicited, incriminating statements that he had been drinking while the officer read him another carefully prepared script concerning the nature of Pennsylvania’s implied consent law and a request to submit to a Breathalyzer test. The only questions asked of Muniz were whether he understood the instructions and whether

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he wished to submit to the test. “These limited and focused” questions were a part of legit- imate police procedure and were not designed or likely to be perceived as calling for an incriminating response. Therefore Muniz’s statements that he had been drinking were admissible.

The Court held that Miranda warnings were required only as to one question posed by the officer: “Do you know what the date was of your sixth birthday?” This was held to be testimonial interrogation; Muniz’s incoherent response implied that he was intoxicated. This was not admissible because the question was asked before Miranda warnings were administered. Justice Brennan, for the majority, reasoned that the content of the answer allowed the police officer to infer that the driver’s mental state was confused. Because the incriminating inference was drawn from a testimonial act rather than a physical fact, the question confronted the suspect with the classic “trilemma” of self-incrimination, perjury, or contempt. Chief Justice Rehnquist disagreed on this point, claiming that Justice Brennan’s assumption about human behavior was wrong. Given the nature of the question to Muniz, which was basically to check how well he could add the number six to his date of birth, there was no real incentive for Muniz to lie and commit perjury. In this view, the question was closer to the physical tests and the “booking questions” that did not violate the Fifth Amendment in this case.

The Nature of Interrogation Miranda v. Arizona (1966) applies to custodial interrogation. Rhode Island v. Innis (1980) ruled that

Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. (Rhode Island v. Innis, 1980, emphasis added)

The functional equivalent of express interrogation can be discovered from the facts and cir- cumstances of cases.

Police arrested Innis at 4:30 A.M. on suspicion of murdering a taxicab driver with a shotgun. They advised him of his rights. He said he wanted to speak with a lawyer, terminat- ing any interrogation. Innis was placed in the back of a patrol car and driven to the station. On the way to the station, Officer Gleckman spoke to Officer McKenna about the shotgun, saying there was a school for handicapped children in the area “and God forbid one of them might find a weapon with shells and they might hurt themselves.” McKenna agreed and sug- gested that they should continue to search for the shotgun. At that point, Innis interrupted the conversation, stating that he could lead the officers to the gun, which he did. This incriminating statement and the shotgun were admitted into evidence to convict him.

Was this exchange the functional equivalent of interrogation? Justice Stewart, writing for the majority, said “no.” He characterized the comments as only a few offhand remarks that the police could not have known would suddenly move Innis to make a self-incriminating response. A lengthy and more pointed “harangue” might become interrogation, but not the conversation here. The Court suggested that an example of a functional equivalent of interro- gation is a “reverse lineup” where the police plant a “witness” in the lineup room to vocally accuse the suspect of a fictitious crime to induce him to confess to the actual crime. The Court added an important embellishment to its “functional equivalent” rule:

But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. (Rhode Island v. Innis, 1980)

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To go further, police knowledge includes not only the likely effect of words on a hypothet- ical person, but also on a suspect with known weaknesses or susceptibilities.

Justice Marshall concurred with the definition of interrogation but dissented from its application to the facts in this case. He noted that appeals to the decency and the honor of the suspect are classic interrogation ploys and that “[o]ne can scarcely imagine a stronger appeal to the conscience of a suspect.” Justice Stevens, also dissenting, sug- gested a different definition of interrogation: “[A]ny statement that would normally be understood by the average listener as calling for a response is the functional equivalent of a direct question, whether or not it is punctuated by a question mark.” This definition focuses on the intention of the officers to some degree. The majority’s rule, however, “focuses primarily upon the perceptions of the suspect, rather than the intent of the police.”

The Innis definition was applied in Arizona v. Mauro (1987). William Mauro was arrested for the murder of his son after turning himself in at a local K-Mart store. He refused to make statements without a lawyer present, and he was not questioned. Police interviewed Mrs. Mauro at the station house. She insisted on speaking with her husband and was allowed to after some resistance on the part of the police. She was told that an officer would be present, and a tape recorder was placed prominently on the table. William Mauro told his wife not to answer questions until a lawyer was present. At trial, the taped conversation was admitted into evidence to refute Mauro’s insanity defense.

The Court held (5–4), in an opinion by Justice Powell, that the recording of the con- versation was not the functional equivalent of interrogation under Miranda or Innis. The police did not send Mrs. Mauro in to speak with her husband, and the presence of the offi- cer during their conversation was not improper. The mere possibility that a suspect in cus- tody will incriminate himself under these circumstances does not amount to interrogation. “[T]he actions in this case were far less questionable than the ‘subtle compulsion’ that we held not to be interrogation in Innis. . . . Officers do not interrogate a suspect simply by hoping that he will incriminate himself.”

Justice Stevens, for the dissenters, reasoned that the police used a “powerful psy- chological ploy” when they allowed Mrs. Mauro to speak to her husband; it was bound to generate some discussion after he had manifested a clear desire to remain silent. The legitimacy of the police presence is irrelevant to this finding, for on the witness stand, the police captain admitted that one reason for allowing the meeting was to obtain state- ments that could “shed light on our case.” Also, a police detective testified that a stan- dard police technique used to get juveniles to talk is to bring their parents into the police station. It is noteworthy that in both the Innis and Mauro cases, the state supreme courts believed that interrogation, or its functional equivalent under Miranda, had occurred.

Colorado v. Connelly (1986) is an example of noninterrogation. Francis Connelly, a chronic schizophrenic, traveled from Boston to Denver because the “voice of God” commanded him to do so. He approached a police officer on a downtown Denver street “and, without any prompting, stated that he had murdered someone and wanted to talk about it.” Connelly was immediately informed of his rights, but he insisted he wanted to speak. He gave a confession on the street, after two additional Miranda warnings, and appeared at that point to be mentally normal. Connelly’s confession was held to be valid because it was a purely voluntary statement not barred by the Fifth Amendment. Justice Brennan dissented, joined by Justice Marshall, finding the admission of a statement by a person diagnosed with chronic paranoid schizophrenia to be a due process violation. “Today the Court denies Mr. Connelly his fundamental right to make a vital choice with a sane mind, involving a determination that could allow the State to deprive him of liberty or even life. This holding is unprecedented” (Colorado v. Connelly, 1986, Brennan, J., dissenting).

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The Use of Deception The defendant in Frazier v. Cupp (1969) was arrested for a murder and interrogated by the police. After a time, an officer told the defendant that his cousin, who was also a suspect, had confessed. This was a lie. “Petitioner [Frazier] still was reluctant to talk, but after the officer sympathetically suggested that the victim had started a fight by making homosexual advances, petitioner began to spill out his story.” The fact that the police officer told a flat lie in order to induce Frazier to confess was not even raised as an issue in the case. This is taken as precedent for the proposition that oral lies told by the police during interrogation do not violate the suspect’s due process or self- incrimination rights.

Police are allowed to employ deception during interrogation, and the literature reports frequent instances of police deceitfully telling suspects that a confederate lied or that a fingerprint or blood test put them at the crime scene when that is not the case. The idea is that a truly guilty party may at that point confess, while a truly innocent person will deny such charges. A risk is that police deception, combined with forceful and pro- longed interrogation, has also led innocent people to confess.34 (See the “Law in Society” box in this chapter.) Deception should not extend to express lies about the law.

Illinois v. Perkins (1990) upheld the use of a jail “plant”—an undercover agent—to obtain an incriminating statement from a suspect. Charlton, a state prisoner, told the police that Perkins admitted to committing a murder. Shortly after this, Perkins was transferred to a jail on an unrelated aggravated battery charge. An undercover agent, posing as an escaped convict, was admitted to the jail and placed in the same cell as Charlton and Perkins. The undercover officer won Perkins’s confidence by suggesting that they escape from the jail together, and he initiated Perkins’s narration of the crime by asking him whether he had ever “done someone.” Perkins then recounted the events of the murder in detail. Perkins was later charged with the murder, and the agent testified at his murder trial to what Perkins had said while in the jail cell. As Justice Kennedy dryly noted, the officer did not give Perkins Miranda warnings before the conversation in the jail cell. The Illinois courts held that because Perkins was in correctional custody and the agent’s statement was indirect interrogation under Rhode Island v. Innis, the rule of Mathis v. United States (1968) required that Miranda warnings be given.

The Supreme Court disagreed (8–1). It held that the conversation was not interroga- tion because the essential Miranda ingredients of a “police-dominated atmosphere” and compulsion were missing. Perkins had no idea he was speaking to a police officer, and “[c]oercion is determined from the perspective of the suspect.” The Court reasoned that for the purposes of Miranda, Perkins was not in custody. “We reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent. . . . [W]here a suspect does not know that he is conversing with a government agent, [mutually reinforcing psy- chological pressures that weaken a suspect’s will] are not present.”

Finally, Justice Kennedy noted that a certain amount of deception by law enforce- ment officers is allowed under Miranda as long as the deception does not become coercive. “Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.” The Court distinguished Mathis by noting that in that case, the defendant knew he was questioned by law enforcement officers. The majority opinion distinguished Perkins from United States v. Henry (1980) and Maine v. Moulton (1985), discussed later, which were decided under the Massiah Sixth Amendment right to counsel rule. Those cases involved interactions between undercover agents and suspects after the suspects had been formally charged and had attorneys. In Perkins, no charges had been filed on the subject of the interrogation, so the Sixth Amendment did not come into play. Perkins allows the use of a valuable investi- gation tool, although law enforcement should be vigilant about abuses that can occur in using inmates as snitches.

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QUESTIONING AFTER FORMAL CHARGING: THE SIXTH AMENDMENT Interrogation of a suspect in police custody is limited by rules developed under the Due Process and Self-Incrimination clauses. Once the suspect is formally charged, whether by grand jury indictment, a prosecutor’s information, or a magistrate’s bind-over after a pre- liminary examination, the legal picture changes. At this point, the criminal prosecution has begun, and the Sixth Amendment right to counsel “attaches.” Once a defendant is charged, different and more stringent constraints on police questioning and eavesdropping apply. Postindictment statements obtained by the police surreptitiously, or in disregard of the defendant’s right to counsel, are excluded from the trial.

This rule was established in Massiah v. United States (1964). Winston Massiah, a crew member on a ship from South America, was charged in New York with transporting cocaine into the United States, indicted, and released on bail. While on bail, Massiah’s codefendant, Colson, agreed to cooperate with the government. A listening device placed in Colson’s car transmitted Massiah’s incriminating statements. A government agent testi- fied to the incriminating statements at Massiah’s trial. The Supreme Court held that intro- ducing the testimony violated Massiah’s Sixth Amendment right to counsel. The Court said that counsel has long been considered essential during the pretrial stages and held that secretly obtaining incriminating statements from an indicted defendant interfered with his right to legal representation.

Justice Stewart’s majority opinion repeated his views in Spano v. New York (1959), a pre-Miranda confession case decided under the voluntariness test. He noted that obtaining a confession from an indicted defendant without notifying an attorney “might deny a defendant ‘effective assistance of counsel at the only stage when legal aid and advice would help him’” (Massiah v. United States, 1964, quoting Spano), that is, secretly taping incriminating statements virtually convicts the defendant, in effect creating a critical stage where counsel has to be present. The same goes for open interviews between police or prosecutors and the defendant. If a plea arrangement is desired, the defendant’s lawyer must be present.

Justice White, dissenting, believed that there was no interference with Massiah’s right to counsel. Unlike the Canon of Professional Ethics that prevents an attorney from interviewing an opposing party, he argued that there is no ethical restriction on investigators’ contacting a defendant. “Law enforcement may have the elements of a contest about it, but it is not a game” (Massiah v. United States, 1964, p. 213, White, J., dissenting). Justice White’s view failed to acknowledge that once the investigator speaks to or overhears a suspect and gets incriminating statements, the value of a lawyer’s advice is nullified.

The Massiah area of law deals with similar functional issues to those that arise under Miranda, including the definition of interrogation and the validity of a waiver. Such ques- tions arose in the notorious Christian burial speech case of Brewer v. Williams (1977). Williams, incidentally, was retried and found guilty. The Supreme Court upheld the second conviction under the doctrine of inevitable discovery in Nix v. Williams (1984), also referred to as Williams II; see Chapter 2.

Read Case and Comments: Brewer v. Williams.

The Massiah Right after Brewer v. Williams The Supreme Court found in favor of defendants in Michigan v. Jackson (1986). A defendant who requests a lawyer at arraignment has invoked his right to counsel, and police may not ini- tiate interrogation until counsel has been made available to the suspect. This seemed to extend the rule of Edwards v. Arizona (1981) to the Sixth Amendment (a questioned suspect who asks for a lawyer under Miranda cannot be interrogated without counsel present). However, the Court shrank this extension of a defendant’s Sixth Amendment rights in the following cases.

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Brewer v. Williams 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)

MR. JUSTICE STEWART delivered the opinion of the Court.

I * * * [Robert Williams, a mental hospital escapee, turned himself in to Davenport, Iowa, police for the murder of a ten-year-old girl at a Des Moines YMCA on December 26, 1968. [a] He was arrested, formally arraigned (charged) for the crime, and advised of his rights by the judge, who noted that Williams was represented by attorney McKnight in Des Moines and attorney Kelly in Davenport. McKnight spoke to Williams on the phone in the presence of Des Moines police detective Leaming. He informed Williams that Des Moines officers would drive to Davenport, pick him up, and would not interrogate him or mistreat him. He warned Williams not to talk to the officers about the crime. When Detective Leaming picked up Williams, Kelly, the Davenport lawyer, was denied a request to ride back to Des Moines with them. Kelly repeated to Detective Leaming that Williams was not to be questioned on the ride back.]

[On the 160-mile ride to Des Moines, Williams expressed no desire to be interro- gated without his lawyer present; he said he would tell the whole story at the end of the trip. Leaming knew Williams was a deeply religious man and engaged him in a general discussion. Soon after the trip began, Leaming delivered the so-called] “Christian burial speech.” Addressing Williams as “Reverend,” the detective said: [b]

“I want to give you something to think about while we’re traveling down the road. . . . Number one, I want you to observe the weather conditions, it’s raining, it’s sleeting, it’s freezing, driv- ing is very treacherous, visibility is poor, it’s going to be dark early this evening. They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl’s body is, that you yourself have only been there once, and if you get a snow on top of it you yourself may be unable to find it. And, since we will be going right past the area on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered. And I feel we should stop and locate it on the way in rather than waiting until morning and trying to come back out after a snow storm and possibly not being able to find it at all.”

Williams asked Detective Leaming why he thought their route to Des Moines would be taking them past the girl’s body, and Leaming responded that he knew the body was in the area of Mitchellville—a town they would be passing on the way to Des Moines. [c] Leaming then stated: “I do not want you to answer me. I don’t want to discuss it any fur- ther. Just think about it as we’re riding down the road.”

As the car approached Grinnell, a town approximately 100 miles west of Davenport, Williams asked whether the police had found the victim’s shoes. When Detective Leaming replied that he was unsure, Williams directed the officers to a service station where he said he had left the shoes; a search for them proved unsuccessful. As they continued towards Des Moines, Williams asked whether the police had found the blanket, and directed the officers to a rest area where he said he had disposed of the blanket. Nothing was found. The car contin- ued towards Des Moines, and as it approached Mitchellville, Williams said that he would show the officers where the body was. He then directed the police to the body of Pamela Powers.

* * * [This evidence was introduced and used to convict Williams of murder. The Iowa courts ruled that Williams waived his right to counsel, but the lower federal courts, on a writ of

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[a] Numerous facts are stated. Which are essential to the holding of the case?

[b] Do you think Detective Leaming made the speech to deliberately elicit incriminating evidence or just to pass the time?

[c] The call for silence at this point allowed Leaming’s speech to work on Williams’s mind.

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habeas corpus, ruled the evidence inadmissible on the alternative grounds of denial of assistance of counsel, a Miranda violation, and that his statements were involuntary.]

B * * * [Miranda v. Arizona does not apply to this case.] For it is clear that the judgment before us must in any event be affirmed upon the ground that Williams was deprived of a different constitutional right—the right to the assistance of counsel. [d]

This right, guaranteed by the Sixth and Fourteenth Amendments, is indispensable to the fair administration of our adversary system of criminal justice. [It is a] vital need at the pretrial stage. * * *

* * * Whatever else it may mean, the right to counsel granted by the Sixth and Fourteenth Amendments means at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him—“whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” * * *

There can be no doubt in the present case that judicial proceedings [by arraignment] had been initiated against Williams before the start of the automobile ride from Davenport to Des Moines. * * * [e]

There can be no serious doubt, either, that Detective Leaming deliberately and designedly set out to elicit information from Williams just as surely as—and perhaps more effectively than—if he had formally interrogated him. Detective Leaming was fully aware before departing for Des Moines that Williams was being represented in Davenport by Kelly and in Des Moines by McKnight. Yet he purposely sought during Williams’ isola- tion from his lawyers to obtain as much incriminating information as possible. Indeed, Detective Leaming conceded as much when he testified at Williams’ trial. * * *

The circumstances of this case are thus constitutionally indistinguishable from those presented in Massiah v. United States. * * * [f]

That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant. * * * Rather, the clear rule of Massiah is that once adversary proceedings have commenced against an individual, he has a right to legal representation when the government interrogates him. * * *

III The Iowa courts recognized that Williams had been denied the constitutional right to the assistance of counsel. [g] They held, however, that he had waived that right during the course of the automobile trip from Davenport to Des Moines. * * *

[The Iowa courts applied a totality of circumstances test to ascertain whether Williams waived his right to counsel. The federal courts held that this was the wrong stan- dard under the constitutional guarantee to counsel: There must be an affirmative waiver.]

* * * The [lower federal courts] were also correct in their understanding of the proper standard to be applied in determining the question of waiver as a matter of federal constitutional law— that it was incumbent upon the State to prove “an intentional relinquishment or abandonment of a known right or privilege.” * * * [h] We have said that the right to counsel does not depend upon a request by the defendant, * * * and that courts indulge in every reasonable presumption against waiver. * * * This strict standard applies equally to an alleged waiver of the right to counsel whether at trial or at a critical stage of pretrial proceedings. * * *

[d] As noted in Chapter 6, the right to counsel attaches pretrial at critical stages. Hamilton v. Alabama (1961) required counsel at arraignment.

[e] Is this obvious? If so, is there any logic in Justice Blackmun’s dissent? Should the Supreme Court allow blatant violations of rights if the crime is horrible?

[f] This clarifies the Massiah ruling. It is, essentially, a right-to-counsel case and is not limited to cases where government agents eavesdrop.

[g] Part III deals with whether Williams properly waived his right to counsel.

[h] This is the test of Johnson v. Zerbst (1938), which is the test for waiver of counsel at trial.

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We conclude, finally, that the Court of Appeals was correct in holding that, judged by these standards, the record in this case falls far short of sustaining petitioner’s burden. It is true that Williams had been informed of and appeared to understand his right to counsel. [i] But waiver requires not merely comprehension but relinquishment, and Williams’ con- sistent reliance upon the advice of counsel in dealing with the authorities refutes any sug- gestion that he waived that right. [He spoke to both the Des Moines and Davenport attorneys numerous times before the trip.] Throughout, Williams was advised not to make any statements before seeing McKnight in Des Moines, and was assured that the police had agreed not to question him. His statements while in the car that he would tell the whole story after seeing McKnight in Des Moines were the clearest expressions by Williams himself that he desired the presence of an attorney before any interrogation took place. But even before making these statements, Williams had effectively asserted his right to counsel by having secured attorneys at both ends of the automobile trip, both of whom, acting as his agents, had made clear to the police that no interrogation was to occur during the jour- ney. Williams knew of that agreement and, particularly in view of his consistent reliance on counsel, there is no basis for concluding that he disavowed it.

Detective Leaming proceeded to elicit incriminating statements from Williams. Leaming did not preface this effort by telling Williams that he had a right to the presence of a lawyer, and made no effort at all to ascertain whether Williams wished to relinquish that right. The circumstances of record in this case thus provide no reasonable basis for finding that Williams waived his right to the assistance of counsel.

The Court of Appeals did not hold, nor do we, that under the circumstances of this case Williams could not, without notice to counsel, have waived his rights under the Sixth and Fourteenth Amendments. It only held, as do we, that he did not.

IV The crime of which Williams was convicted was senseless and brutal, calling for swift and energetic action by the police to apprehend the perpetrator and gather evidence with which he could be convicted. [j] No mission of law enforcement officials is more important. Yet, “[d]isinterested zeal for the public good does not assure either wisdom or right in the meth- ods it pursues.” * * * Although we do not lightly affirm the issuance of a writ of habeas cor- pus in this case, so clear a violation of the Sixth and Fourteenth Amendments as here occurred cannot be condoned. The pressures on state executive and judicial officers charged with the administration of the criminal law are great, especially when the crime is murder and the victim a small child. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

[Justices Marshall, Powell, and Stevens concurred in separate opinions.]

MR. CHIEF JUSTICE BURGER, dissenting. [k] The result in this case ought to be intolerable in any society which purports to call

itself an organized society. It continues the Court—by the narrowest margin—on the much-criticized course of punishing the public for the mistakes and misdeeds of law enforcement officers, instead of punishing the officer directly, if in fact he is guilty of wrongdoing. It mechanically and blindly keeps reliable evidence from juries whether the claimed constitutional violation involves gross police misconduct or honest human error.

* * * [Further in his opinion, the CHIEF JUSTICE argued that the exclusionary rule should not apply to nonegregious police conduct.]

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[i] The state had the burden of proof that Williams voluntarily waived his right to counsel. The majority thinks the burden was not met. Compare this to Justice White’s dissent. Should Detective Leaming have informed Williams of his right to counsel and given him the chance to waive that right?

[j] The majority refuses to “bend the rules” of constitutional rights to gain a conviction in a terrible crime. Compare the remarks of Chief Justice Burger.

[k] This is political “tough on crime” rhetoric. Does it belong in a Supreme Court opinion? Do suspects have too many rights? Can this rhetoric lead to the permanent loss of rights?

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MR. JUSTICE WHITE, with whom MR. JUSTICE BLACKMUN and MR. JUSTICE REHNQUIST join, dissenting.

* * * Respondent relinquished his right not to talk to the police about his crime when the car approached the place where he had hidden the victim’s clothes. [l] Men usually intend to do what they do, and there is nothing in the record to support the proposition that respon- dent’s decision to talk was anything but an exercise of his own free will. Apparently, with- out any prodding from the officers, respondent—who had earlier said that he would tell the whole story when he arrived in Des Moines—spontaneously changed his mind about the timing of his disclosures when the car approached the places where he had hidden the evi- dence. However, even if his statements were influenced by Detective Leaming’s above- quoted statement, respondent’s decision to talk in the absence of counsel can hardly be viewed as the product of an overborne will. The statement by Leaming was not coercive; it was accompanied by a request that respondent not respond to it; and it was delivered hours before respondent decided to make any statement.

Respondent’s waiver was thus knowing and intentional.

* * * MR. JUSTICE BLACKMUN, with whom MR. JUSTICE WHITE and MR. JUSTICE REHNQUIST join, dissenting.

* * * What the Court chooses to do here, and with which I disagree, is to hold that respondent Williams’ situation was in the mold of Massiah v. United States, [m] that is, that it was dominated by a denial to Williams of his Sixth Amendment right to counsel after criminal proceedings had been instituted against him. The Court rules that the Sixth Amendment was violated because Detective Leaming “purposely sought during Williams’ isolation from his lawyers to obtain as much incriminating information as possible.” I cannot regard that as unconstitutional per se.

First, the police did not deliberately seek to isolate [n] Williams from his lawyers so as to deprive him of the assistance of counsel. * * * The isolation in this case was a neces- sary incident of transporting Williams to the county where the crime was committed.

Second, Leaming’s purpose was not solely to obtain incriminating evidence. The victim had been missing for only two days, and the police could not be certain that she was dead. Leaming, of course, and in accord with his duty, was “hoping to find out where that little girl was,” * * * but such motivation does not equate with an intention to evade the Sixth Amendment. * * *

Third, not every attempt to elicit information should be regarded as “tantamount to interrogation.” * * * [o] I am not persuaded that Leaming’s observations and comments, made as the police car traversed the snowy and slippery miles between Davenport and Des Moines that winter afternoon, were an interrogation, direct or subtle, of Williams. * * * In summary, it seems to me that the Court is holding that Massiah is violated whenever police engage in any conduct, in the absence of counsel, with the subjective desire to obtain infor- mation from a suspect after arraignment. Such a rule is far too broad. Persons in custody frequently volunteer statements in response to stimuli other than interrogation. * * * When there is no interrogation, such statements should be admissible as long as they are truly voluntary. * * *

* * *

[l] What is Justice White’s logic? Can this logic make legal any incriminating statement except those obtained by torture? Was Williams’s admission spontaneous?

[m] A question not settled by this case is whether it is ever possible for police to interview a suspect without his or her lawyer present after formal charges.

[n] Do the first two points made by Justice Blackmun pass the “giggle test”?

[o] Like Rhode Island v. Innis and Arizona v. Mauro, the case is also about the functional equivalent of interrogation. If Detective Leaming’s speech is not the functional equivalent, what is?

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Patterson v. Illinois (1988) resolved an issue not completely answered in Brewer v. Williams. It held that an indicted defendant who is read Miranda warnings may validly waive his right to counsel. Under some circumstances, then, a charged defendant can speak to police without an attorney present, as long as there is an express waiver of the right to counsel. Dissenters in Patterson wanted the Court to impose additional warnings to the four required by Miranda for suspects who have been formally charged, but the majority refused to do so. Justice Stevens, dissenting in Patterson, raised a different point: that it is unethical for investigators or prosecutors during trial preparation to go behind the backs of their adversaries and communicate with a defendant. In his view, since it is a breach of pro- fessional ethics for an attorney to communicate with an opposing party without the knowl- edge of opposing counsel, the Massiah rule also “suggest[s] that law enforcement personnel may not bypass counsel in favor of direct communications with an accused.” The majority did not accede to this view.

The Court further limited Massiah rights in McNeil v. Wisconsin (1991). A defen- dant who invokes the right to counsel for one crime (and cannot be questioned about it) is not automatically protected against police questioning for another crime. The Court held that the Sixth Amendment right to counsel is offense-specific, unlike the right to counsel created by the Supreme Court in Miranda to protect Fifth Amendment rights. The reason for this distinction is that the purpose of the Sixth Amendment right to coun- sel is to protect the unaided layperson at a critical confrontation. The purpose of the Miranda-Edwards rule is to protect a suspect’s desire to deal with police only through counsel.

A strong example of the Rehnquist Court’s activist, conservative reasoning is found in Michigan v. Harvey (1990), which held that a statement taken in violation of one’s Massiah rights under Michigan v. Jackson (1986) can be used at a trial to impeach the defendant should he or she choose to testify. Since a violation of Jackson seems to be a direct violation of a suspect’s Sixth Amendment rights, it is difficult to see how a state- ment obtained by a blatant violation of Massiah and Jackson could be used in any pro- ceeding. Chief Justice Rehnquist, writing for the majority, achieved this goal by muddying the clear distinction between Fifth and Sixth Amendment rights that Justice Stewart had worked to achieve in cases like Spano, Massiah, and Brewer v. Williams. Rehnquist’s opinion minimized the difference between Miranda and Massiah, arguing that although Michigan v. Jackson “is based on the Sixth Amendment . . . its roots lie in this Court’s decisions in Miranda v. Arizona and succeeding cases.” It is difficult to com- prehend the cause and effect since Massiah (1964) preceded Miranda (1966) by two years. The Court reasoned that Michigan v. Jackson borrowed its bright-line rule from Edwards v. Arizona, a Miranda case. By this reasoning, the Court held that the rights announced in Michigan v. Jackson were mere prophylactic rules and so could be used to impeach the defendant.

Justice Stevens dissented (joined by Justices Brennan, Marshall, and Blackmun). He stated that the right to counsel is much more pervasive than other rights “because it affects the ability of the accused to assert any other rights he may have.” Because of this, rules for waiving counsel are extremely stringent. Further, he said that the majority argu- ment was a ploy to confuse the true basis of a Massiah right. In this case, Harvey’s right to see his lawyer was violated by a police officer who told a confused Harvey that he didn’t have to see his lawyer. Stevens virtually accused the majority’s recharacterization of the facts of this case as one “involving nothing more than the violation of a ‘prophylactic’ rule” as a smoke screen that undermined the rule of Massiah and a suspect’s primary right to counsel.

Justice Stevens added a practical reason for excluding all use of evidence obtained in violation of Massiah rights:

The police would have everything to gain and nothing to lose by repeatedly visiting with the defendant and seeking to elicit as many comments as possible about the pending trial.

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Knowledge that such conversations could not be used affirmatively would not detract from the State’s interest in obtaining them for their value as impeachment evidence.

Michigan v. Harvey is an example of judicial decision making that reflects the crime con- trol and due process models of criminal justice discussed in Chapter 1.

Undercover Policing and the Right to Counsel In Illinois v. Perkins (1990), discussed earlier, the Court allowed undercover policing to proceed without warning individuals that they were suspects, because incriminating state- ments made to false friends are not compelled. This kind of deception is not a substitute for coercion. Massiah, on the other hand, seems to rule out this kind of deception once a person has been formally charged and is clothed with the right to counsel. The Court has maintained, but softened, the Massiah rule to some degree when agents or informants are planted in a suspect’s jail cell to listen for incriminating statements.

Jail Cell Cases. An incriminating statement made by a suspect in a jail cell to an informant in United States v. Henry (1980) was thrown out as a Massiah violation because the informant “deliberately elicited” the statement from Henry by engaging in conversa- tions that resulted in the incriminating statement. On the other hand, in Kuhlman v. Wilson (1986), a jail informant placed in a cell with Wilson did not deliberately elicit the incrimi- nating evidence. The informant did not initiate any conversations about the crime but “only listened” to Wilson and took notes later. The rule, then, is that the police can place in a cell a passive listener who acts like a listening device, which is allowed in a jail setting, as long as the cellmate does not start conversations that are likely to lead the suspect to incriminate himself. This ruling, favorable to the prosecution, does not take into account the human tendency of an inmate to talk to a cellmate, increasing the likelihood of making incriminat- ing statements.

Undercover Informant. Maine v. Moulton (1985) is factually similar to Massiah and restates the jail case rules in the context of undercover policing. Colson, a codefendant of Moulton, agreed to obtain information for the police in return for the state’s dropping charges against him.35 Both Moulton and Colson, out on bail, got together to plan trial strategy, during which Moulton made incriminating statements. The Supreme Court held that the statements were barred by the Massiah rule:

The Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a “medium” between him and the State. . . . [T]his guarantee includes the State’s affirmative obligation not to act in a manner that circumvents the protec- tions accorded the accused by invoking this right. . . . Thus, the Sixth Amendment is not vio- lated whenever—by luck or happenstance—the State obtains incriminating statements from the accused after the right to counsel has attached. . . . However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as the intentional creation of such an opportunity. (Maine v. Moulton, 1985, emphasis added)

The majority agreed that handing up an indictment does not prevent the police from continuing to investigate a case or from investigating the defendant for other crimes. However, they must not obtain evidence surreptitiously from an indicted defendant in a way that cuts the defendant off from the defense lawyer. Therefore, the majority made it clear that if the police are investigating a suspect for Crime B and the suspect has already been indicted for Crime A, an undercover agent may investigate the suspect for Crime B for which the suspect has not been charged. Evidence obtained by the undercover agent pertaining to Crime A may not be admitted. Only evidence for the new crime (Crime B) is admissible.

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TORTURE AND INTERROGATION IN A TIME OF TERROR

Torture After the terrorist attacks on September 11, 2001, whether to use torture to elicit informa- tion from would-be terrorists became a lively topic. Professor Alan Dershowitz of Harvard Law School suggested that “torture warrants” would be appropriate in some cases, provok- ing a torrent of criticism.36 The question is no longer theoretical. Although the Bush administration has denied it, the authorization and use of techniques like “waterboarding,” hypothermia, and sleep deprivation to obtain confessions from suspected terrorists are forms of torture categorically forbidden by international and American law.37

In international law, both torture and “other cruel, inhuman or degrading treatment or punishment” are forbidden.38 The European Court of Human Rights stated that the “dif- ference between torture and inhuman treatment ‘derives principally from a difference in the intensity of the suffering inflicted.’”39 Torture is absolutely prohibited for all reasons. The international Convention against Torture (CAT) states: “No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Signatories to CAT, like the United States, must “undertake to prevent” inhuman treatment, but the “no excep- tional circumstances” statement that applies to torture is omitted.40 The exception, how- ever, does not condone cruel, inhuman, or degrading treatment. Planning, authorizing, or carrying out torture is a war crime.41

The United States is a CAT signatory. The Senate ratification softened the international definition by providing that torture includes the intent to inflict severe physical or mental pain and by narrowing the definition of mental pain. Commenting on the news reports of treatment of al Qaeda prisoners at Bagram Air Base, Professor John Parry concludes that if true, they “reveal that the United States is involved or implicated in a range of interrogation practices that are illegal under domestic and international law.”42

Is torture effective? Dershowitz, who is morally opposed to torture, writes that he believes that law enforcement officials will employ torture in “ticking bomb” cases.43

Philosophical supporters of torture emphasize this scenario, and even opponents allow that illegal torture should be used to save lives in such situations.44 The problem is that the “ticking bomb” scenario is a myth. The English commentator Christopher Hitchens makes the wise point that the “favourite experimental scenario—the man knows where the bomb is, put the hooks into him swiftly—is actually a contingency almost impossi- ble to visualise. I certainly know of no such real-life case.”45 A very careful analysis of the literature on the effectiveness of torture allows that in rare instances threats of the use of physical force might have worked.46 Against this is the evidence that many anec- dotes of successful torture, including three used by Dershowitz, may be less clear on careful examination and that security agencies have not provided careful documenta- tion of success.

More important, the historical accounts, psychological studies, and case analyses of the failures and problems with coercive interrogation are legion.47 CIA and FBI reports point out the problems of inaccurate recollection and false confessions. The use of torture in Algeria, Northern Ireland, and Israel have not produced the desired political results. The slippery slope problem cannot be dismissed as a fantasy after the indelible stain that the photographs of the abuse of Iraqi detainees at Abu Ghraib prison have left on America in the Arab and Islamic worlds. Consider the case of captured Iraqi Major General Abed Hamed Mowhoush. He initially cooperated with his captors without the use of coercion. It was then decided that further information could be gained by physical coercion. A “secret CIA-sponsored group of Iraqi paramilitaries, working with Army interrogators, [beat] Mowhoush nearly senseless, using fists, a club and a rubber hose.”48 He died in U.S. mili- tary custody without divulging further information.49

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Torture is hideous and degrading both to the victims and to the torturers; it has always deeply scarred societies that allow it.50 There is a certain irony in the fact that the administration-Senate compromise bill on detainees in late September 2006 could still allow some “wiggle room” for CIA coercive measures,51 while at the same time the U.S. Army, which fields the largest number of terrorist interrogators, has promulgated a single standard of noncoercive interrogation. As Lieutenant General John Kimmons, the army’s deputy chief of staff for intelligence, explained in a news conference: “I am absolutely convinced [that] no good intelligence is going to come from abusive practices. I think his- tory tells us that. I think the empirical evidence of the last five years, hard years, tell[s] us that,” said the general. “Moreover, any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility, and additionally it would do more harm than good when it inevitably became known that abu- sive practices were used. And we can’t afford to go there.”52

Interrogation of terror suspects, of course, is a necessary and effective intelligence tool in counterterrorism and has yielded successes. Indeed, in most European countries, “an anti-terrorism apparatus based on aggressive domestic spying and extensive judicial power” has dismantled most extremist cells “well before the attack stage.”53 The use of torture and inhuman treatment may (or may not) assist the short-term goals of interroga- tion, but in the long run they may prove self-defeating.

Extraterritoriality and Miranda As noted in Chapter 5, extraterritorial interrogations must adhere to at least a modified version of the Miranda warnings. Mohamed Rashed Daoud Al-’Owhali, a member of al Qaeda, was prosecuted in 2001 in a New York federal court for the 1998 bombing of the U.S. embassy in Nairobi, Kenya. He claimed that his statements, made during his interro- gation in Kenya by an FBI special agent and an Assistant U.S. Attorney, violated his right against self-incrimination. Federal Judge Leonard Sand ruled, in a case of first impression, that U.S. law enforcement personnel interrogating suspects abroad with the consent of the host country for purposes of prosecuting the suspects in U.S. courts must abide by Miranda:

[A] principled, but realistic application of Miranda’s familiar warning/waiver framework, in the absence of a constitutionally-adequate alternative, is both necessary and appropriate under the Fifth Amendment. Only by doing so can courts meaningfully safeguard from governmen- tal incursion the privilege against self-incrimination afforded to all criminal defendants in this country—wherever in the world they might initially be apprehended—while at the same time imposing manageable costs on the transnational investigatory capabilities of America’s law enforcement personnel. . . .

. . . We therefore hold that a defendant’s statements, if extracted by U.S. agents acting abroad, should be admitted as evidence at trial only if the Government demonstrates that the defendant was first advised of his rights and that he validly waived those rights.54

Judge Sand noted that prior case law required warnings when U.S. agents were involved in questioning by foreign police personnel. He specifically held that a suspect questioned on foreign soil must be warned of the right to silence. “He must also be told that anything he does say may be used against him in a court in the United States or elsewhere. This much is uncontroversial.”55 However, the need to warn a suspect that he has a right to the presence of counsel depends on whether that is a right that exists under the law of the host country:

Miranda does not require law enforcement to promise that which they cannot guarantee or that which is in fact impossible to fulfill. No constitutional purpose is served by compelling law enforcement personnel to lie or mislead subjects of interrogation. Nor does Miranda mandate that U.S. agents compel a foreign sovereign to accept blind allegiance to American

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criminal procedure, at least when U.S. involvement in the foreign investigation is limited to mutual cooperation.56

Judge Sand rejected the prosecution argument that giving the warnings, with mod- ifications as necessary, would impose intolerable costs on international investigations with cooperating nations or on America’s ability to deter transnational crime. Indeed, the federal agents did read extensive warnings to Al-’Owhali, relying on an “Overseas FBI Advice of Rights Form.” Judge Sand held that the form was facially deficient because it only informed the suspect that he would have a right to counsel if he was in the United States, creating the impression that no such right was available in the country in which the interrogation occurred. Indeed, Kenyan law raised the possibility that counsel might be available at interrogation. As a result, five days of Al-’Owhali’s interrogation were suppressed.

Al-’Owhali later indicated that he wished to inculpate himself in exchange for a guar- antee that he be tried in the United States; statements taken on that day were admissible because they were preceded by an oral statement by a U.S. attorney that he could have an attorney present. Al-’Owhali got his wish. He and three others were found guilty of the embassy bombing in the U.S. federal court in Manhattan, just weeks after the 9/11 attacks. They were sentenced to life in prison without any chance of release.57

It is worth noting that the decision in the Al-’Owhali case accords with the theory put forth in Chavez v. Martinez (2003)—that Miranda rights and the right against self- incrimination are essentially exclusionary rules, violations of which occur at the time and place of introducing compelled statements. Therefore the requirement of Miranda rights in Kenya is designed to protect a suspect’s privilege against self-incrimination in New York.

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THE SOCIAL REALITY OF CONFESSIONS

The Acceptance of Miranda

Despite its bitter reception by police and others in 1966, the Miranda ruling has since been accepted by the legal and law enforcement communities. Chief Justice Warren Burger stated in 1980, “The meaning of Miranda has become rea- sonably clear and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date” (Rhode Island v. Innis). This signaled that Miranda’s opponents could now live with it, in part because the case did not undermine effective policing. Chief Justice Burger also wanted to avoid another round of appeals designed to clarify a major legal revolution in estab- lished and well-known confessions rules.

Many police see Miranda, and the study of consti- tutional law in general, as enhancing the professional sta- tus of policing. Some officers accept that without legal strictures, their crime-fighting behavior could turn to lawlessness. Others have internalized the Miranda rules and are happy to apply them to the extent that they accord with what they believe is “fair and decent” behavior.58 In

this light, it is important to be clear that “Miranda has not failed to achieve its limited goals”59—which were not to eliminate interrogation and confessions or to completely equalize the power relationship between a suspect and the police or to lower confession rates. Miranda was designed to reduce the compulsion of the interrogation process. Understanding this, police officers are happy to follow the letter of the Miranda decision if the goals of law enforcement can be generally realized.60 This has resulted in police adaptation to the Miranda requirements.

Police Interrogation Today: Adapting to Miranda

What do we know about how custodial interrogation is conducted? “During the first few years after Miranda, empirical studies suggested that Miranda’s impact was minimal.”61 Few studies of Miranda’s effect appeared for some time, but since 1996 several have enlarged our under- standing of Miranda, and some have generated a lively debate over the “costs” to law enforcement of the need to warn interrogated suspects of their rights.

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How Are Interrogations Conducted? As a routine prac- tice, third-degree tactics—the use and threats of beatings— have disappeared as police interrogation techniques. Police today use sophisticated psychological techniques to “persuade” recalcitrant defendants to admit their guilt. A study by Professor Richard Leo of 182 interrogations observed in three California police departments in 1992 and 1993 provided a picture of contemporary interrogation. Most of the suspects were young working-class African American males. Seventy percent of the primary detectives conducting the questioning were white, and 90 percent were males. In 69 percent of the cases, interrogation was conducted by one officer, and in 31 percent, two officers interrogated. Forty-three percent of the cases were for rob- beries, 24 percent were for assault, 12 percent were for homicide, and the other 21 percent were for burglaries, thefts, and other crimes.

Only 22 percent of the suspects invoked their Miranda rights after they were read. Suspects with prior felony records invoked their rights more often (30 per- cent) than those with no record (8 percent) or with prior misdemeanor involvement (11 percent) in the criminal justice system. Thirty-six percent of the suspects made no incriminating statement, 22 percent made an incrimi- nating statement, 18 percent made a partial admission, and 24 percent made a full confession. Thirty-five percent of the interrogations lasted less than thirty min- utes, 36 percent lasted thirty to sixty minutes, 21 percent lasted for one to two hours, and 8 percent lasted more than two hours.62 Leo concluded that under legal crite- ria, only four out of 182 cases, or 2 percent, “rose to the level of ‘coercion.’”63

Leo provides six in-depth vignettes from the cases he observed. In each, the officers used a variety of psy- chological ploys to get confessions. A suspect accused of smashing in a car’s window and stealing its contents was told that several witnesses saw him do this. “The detective was, of course, fabricating evidence against the suspect, but the suspect did not know this.”64 The inter- rogation lasted more than an hour; the suspect admitted breaking into the car and, on a plea bargain, received a one-year sentence. Another suspect, a twenty-one- year-old Hispanic male, was accused of kidnapping a fourteen-year-old girl from a party and brutally raping and anally and orally sodomizing her before returning the girl to the party with a warning that he would shoot her if she spoke. The victim immediately told a friend, who called the police. A swift medical examination con- firmed severe physical injury. During the interrogation, the detective, a Hispanic female, “went from somewhat formal language (which it appeared he didn’t under- stand) to slang, crude, and even profane language to ask him questions about the sexual acts.” He appeared ner- vous, but “she quickly put her hand on his in a friendly

gesture, smiled, and told him to trust her, that she wouldn’t be embarrassed by anything he told her.” The suspect invoked counsel, ending the interrogation after thirty-four minutes. He pleaded guilty to statutory rape and received a one-month sentence plus four years of “formal probation.”65 This indicates that failure to obtain confessions in some cases may allow guilty parties to go free or receive less than adequate punishment.

Why Do Suspects Waive Their Miranda Rights? Observations of police interrogation practices show that a variety of psychological methods are used to get suspects to talk. If the police follow the spirit of Miranda, they at least deliver the warnings in a neutral way at the begin- ning of an interrogation session. Some do. But many oth- ers deemphasize the importance of Miranda waivers in several ways. They may indicate that the waiver is an unimportant bureaucratic detail (a mere formality) or may build rapport and engage in small talk before men- tioning Miranda. Another “selling” technique is to stress the importance of the suspect’s “telling his side of the story.”66 A more insidious technique is to weave the warnings into questions and answers over a long period of time so that the suspect waives rights and after this is read the warnings in a block—a method dubbed “partici- pating Miranda” by Professors Peter Lewis and Harry Allen.67

Leo describes the process by characterizing police interrogation as a “confidence game.” Like a “con man,” or perhaps any good salesperson, the police interrogator must psychologically “size up” and figure out how to manipulate the suspect. This requires knowledge of the crime, the victim, and the suspect. Unlike a true confi- dence man, a police interrogator cannot select or “qual- ify” the “mark.” The officer “cultivates” the suspect by projecting a friendly and sincere image, offering coffee, and engaging in light banter. Simultaneously, the barren interrogation room, the thick case folder with the sus- pect’s name prominently attached, and various interroga- tion techniques, such as pitting the suspect against a shadowy but fearsome prosecutor or judge and jury, are designed to raise the suspect’s anxiety. The police frame their questions with admonitions about telling the truth; telling the truth will “make it go better” for the suspect and make him or her feel better. To elicit a confession, the police draw on various techniques of persuasion, decep- tion, and neutralization: contradicting false statements, minimizing the immoral nature of what was done, posing false statements, and many more. Finally, the officers, knowing that the confessions will be attacked once defense lawyers come into the case, “cool the mark” by complimenting the suspect for his or her honesty and cooperation and maintaining a neutral tone and a positive reaction to the defendant to the end.68

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Interrogation “Outside” Miranda. As noted in the body of this chapter, a troubling interrogation practice known as “interrogation outside Miranda” has become prevalent in some places. In this practice, police deliber- ately violate a suspect’s Miranda rights in order to gain the collateral use of evidence. The Supreme Court is examin- ing the practice, the existence of which reveals the need for vigilance in protecting individual rights.69

The Benefits of Miranda. Leo asserts that Miranda has had four positive long-range social effects. In his view, conservative critics of the 1980s were wrong to contend that Miranda has undermined effective law enforcement, and liberals have been shortsighted in saying that Miranda’s effects have been more symbolic than real.70

First, Leo says, “Miranda has exercised a civilizing influ- ence on police behavior inside the interrogation room” by accelerating a process that was in place in 1966. This has helped to make the police more professional by establish- ing objective and written standards of police behavior. As a result, “American police in the last thirty years have, by necessity, become more solicitous of suspects’ rights, more respectful of their dignity, and more concerned with their welfare inside the interrogation room.”71 Second, Miranda “has transformed the culture—the shared norms, values and attitudes—of police . . . by fundamen- tally re-framing how police talk and think about the process of custodial interrogation.”72 Third, Miranda has increased public awareness of constitutional rights. Finally, “Miranda has inspired police to develop more specialized, more sophisticated and seemingly more effective interrogation techniques with which to elicit inculpatory statements from custodial suspects.”73 Thus Miranda is part of a larger and longer term trend in Western society in which government power is “more controlling of its subjects” but at the same time “more subject to control itself [in the areas of] legal institutions, professional standards, and social norms.”74

Improving Miranda: Videotaping. This does not mean that police interrogation is without its problems. As will be explored later, numerous false confessions raise concerns about how interrogation is conducted. To ensure that interrogation becomes more professional and effective, Leo, borrowing from a 1993 Department of Justice study, has urged that courts mandate the video- taping of interrogations as a matter of due process.75

There are many good reasons for videotaping interroga- tions: (1) It creates an “objective, reviewable record of custodial questioning that protects [police] against false accusations—accusations such as ‘softening up’ a sus- pect prior to Miranda, failing to correctly read the Miranda warnings, or eliciting a confession through improper inducements.” (2) It is “likely to improve the

quality of police work and thus contribute to more professional and more effective interrogation practices. Officers and detectives who know they will be videotaped are more likely to prepare their strategies beforehand and to be more self-conscious about their conduct during questioning.” (3) Tapes can be used for training. (4) Videotaping can increase law enforcement effectiveness because it “facilitates the identification, prosecution, and conviction of guilty offenders.” For example, it “pre- serves the details of a suspect’s statement that may not have been initially recorded in a detective’s notes but may subsequently become important.” (5) Videotapes are believed to have helped prosecutors negotiate a higher percentage of guilty pleas and obtain longer sen- tences because they provide “a more complete record with which to better assess the state’s case against the accused,” including “the demeanor and sophistication of the suspect.” As a result, some defense attorneys oppose videotaping confessions because it makes it more diffi- cult to challenge the stories of detectives, although pub- lic defenders with high caseloads appreciate videotapes because it helps them to more quickly cut through clients’ lies and produce accurate guilty pleas.

Why Do Innocent People Confess?

The English common law harbors a traditional distrust of confessions (found in the rule that uncorroborated con- fessions are inadmissible in court) out of fear that psy- chological manipulation would induce innocent people to confess. This problem still exists, despite Miranda, and requires precautions in how interrogation is conducted. As improbable as it may seem, when police use modern “psychological interrogation” rather than torture (e.g., Brown v. Mississippi, 1936), they still get innocent people to confess.

How Innocent People Confess. Recent scholarship by Professors Richard Leo and Richard Ofshe, drawing on prior scholarship regarding false confessions and on their own inquiry, has explored many cases of false confes- sions. In one article, they review sixty cases of allegedly false confessions and, after examining available court and news media records, classify them into three groups: thirty-four confessions that were proven false, eighteen highly probable false confessions, and eight probable false confessions.76 In other writings, Ofshe and Leo acknowledge that the actual number of false confessions cannot be known because (1) police do not keep complete records of interrogations, making it difficult to evaluate the reliability of the interrogation or whether there was any undue pressure; (2) no criminal justice agency keeps records or collects statistics on the number or frequency of interrogations; and (3) many cases of false confession are not reported.77 Nevertheless, there are so many

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documented cases just in the past decade that false con- fessions must be seen as an important policy area to be addressed.78

Leo and Ofshe have intensively explored false con- fessions in a lengthy article that relies heavily on field data—transcripts of both true and false confessions—to display how certain processes lead to false confessions by the innocent.79 They identify four types of false con- fessions: 80

● Stress-compliant false confessions. The modern psy- chological interrogation is stressful by design, and for some individuals—especially those with an abnormal reactivity to stress, who may be phobic, or with intellectual limitations who cope by becoming submissive—the pressure requires alleviation by say- ing, “I did it.”

● Coerced-compliant false confessions. These false con- fessions often result from the familiar “accident scenario technique” or “maximization/minimization.” This is a subtle promise and threat (traditionally outlawed in England) by which the police convince the suspect that what he did was not all that serious because there is a legal excuse or mitigation and that by confessing, he will receive lenient treatment.

● Voluntary and involuntary persuaded false confessions. These are instances where, after a good deal of inter- viewing and subtle or not-so-subtle badgering, the inno- cent person becomes so confused that confidence in his own memory is shattered. He reports that despite no overt memory of committing the crime, he agrees that the interrogators’ recitation of events and (fabricated) “facts” must mean he is guilty.

Ofshe and Leo do not suggest that confessions be abolished. They recommend safeguards because the process by which the innocent confess is very close to the process by which investigators obtain confessions from the guilty. The steps by which confessions are obtained in the era of psychological interrogation show why this is so. Detectives have two categories of sus- pects: “likely suspects, for whom there exists solid evi- dence suggesting their guilt; and possible suspects, which includes everyone whose name comes up during an investigation.” Interrogation is superficially the same for both types. The detective may begin with an inter- view rather than interrogation format, especially for a possible suspect, to gain rapport and lull the interviewee into forgetting the adversarial nature of the encounter. Once Miranda warnings are read, neither “an innocent nor a guilty party is likely to appreciate the full signifi- cance of the . . . warnings.” The innocent person thinks that he or she has nothing to hide. At that point, the tone and content of the interaction become confrontational and demanding. To get the suspect to say, “I did it,” an investigator must strongly reject denials and insist that

objective evidence points to guilt. At this point, a truly innocent person “is likely to experience considerable shock and disorientation . . . because he is wholly unpre- pared for the confrontation and accusations that are the core of the process, and will not understand how an investigator could possibly suspect him.” The tragedy of wrongful confessions occurs because the responses to questioning by the guilty and the innocent “are often indistinguishable to an investigator.” The investigator must now convince the suspect that arrest is imminent and get the suspect to make an admission. Once this watershed is crossed, the investigator then moves the process toward obtaining a full confession.81

An Example of a False Confession. In 1986, Thomas F. Sawyer, a thirty-six-year-old groundskeeper, was charged with the murder of his next-door neighbor, a single twenty- five-year-old woman, in Clearwater, Florida, on the basis of a confession. Janet Staschak was found strangled, nude, face down on her bed with wire and tape marks on her ankles. Sawyer, a recovering alcoholic, was extremely shy, suffered from bouts of anxiety, and often turned red and sweated profusely in ordinary social situations. When Sawyer was initially questioned by police officers, they noted his odd mannerisms and targeted him as a suspect. However, hair and blood samples obtained from Sawyer before his interrogation did not match samples found on the dead woman.

Although there was no corroborating evidence, two Clearwater detectives, John Dean and Peter Fire, obtained a confession from Sawyer. Before, during, and after the interrogation, Sawyer maintained his innocence. Then how or why would an innocent person confess?82

Understanding Sawyer’s confession in this case is aided by the transcript of what occurred during the entire taped sixteen-hour interrogation session, which stretched from 4:00 P.M. to 8:00 A.M., with time out for a ninety- minute nap. After several hours of questioning, the detec- tives asked Sawyer to pretend he was a police officer and to suggest methods and motives for the crime. Later during the questioning, they would take his statements and say that he knew too much about the crime to have guessed about the state of the room and the way in which the crime was carried out. Yet police officers had for some time before the questioning been back and forth between Sawyer’s and Staschak’s apartment, and he may have heard a good deal about the crime; furthermore, the transcript, at this point, included a good deal of prompting by the detectives.

At about 8:00 P.M., four hours after the questioning began in a small room at the police station, the officers warned Sawyer of his rights, an example of “participating Miranda”:

DEAN: All right. We got this squared away. Now Tom, because this is a criminal investigation, obviously, what

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we’ve been doing—There’s a new phase we have to enter into now. And before I do that, I have to read you your rights. You watch television. You know. So just let me read you these. You have the right to remain silent. Do you understand that?

SAWYER: Uh-huh.

DEAN: Anything you say can and will be used against you in a court of law. Do you understand that? [Sawyer nods.]

FIRE: You got to go “yes.”

SAWYER: Yes.

FIRE: Okay.

DEAN: You have the right to talk to a lawyer—

FIRE: No, wait a minute. You don’t have to say yes. You answer the way you want to answer, but we have to hear you. I know you’re saying yes with your nod, okay? You nodded yes, but—Okay?

SAWYER: Yeah. Okay.

DEAN: You have the right to talk to a lawyer. Have him present with you while you are being questioned. Do you understand that?

SAWYER: Yes.

DEAN: If you can’t afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish. Do you understand that?

SAWYER: Say it again. I wasn’t—

DEAN: Okay. If you cannot afford to hire a lawyer, one will be appointed to represent you before any question- ing if you wish. Do you understand that?

SAWYER: Yes.

DEAN: Okay. You can decide at any time to exercise your rights and not answer any questions or make any statements. Do you understand that?

SAWYER: Yes.

DEAN: Okay.

FIRE: Okay. So you understand everything. Okay. Listen, Tom. John and I—we’ve been talking to you all evening about this. Right? Okay? So why don’t you tell us what happened. Tell us what happened.

This was followed by continuous denials by Sawyer and insistent statements by Dean and Fire that Sawyer was guilty.

SAWYER: I didn’t do it.

FIRE: Tommy, it’s not the truth.

SAWYER: Yes, it is.

FIRE: No it’s not. Tom. Tell me the truth. Tell me what happened. It was an accident, Tom. I know it was. I know it was an accident. I need for you to tell me what hap- pened.

SAWYER: I was never there. I never did it.

FIRE: Tom.

SAWYER: I’ll look you in the eye and say that all night.

FIRE: I know, we got all night.

Throughout the session, Sawyer believed that his hair samples matched those found on Janet Staschak and that a polygraph test indicated he was lying.83 Playing on this, the detectives suggested to Sawyer that he had “blacked out” during the crime and committed it, although he did not remember anything. Throughout the session, Dean and Fire told Sawyer that he was an intel- ligent and good person, that the crime was not premedi- tated, that he would feel a great sense of relief if he confessed. Worn down, Sawyer finally confessed not only to a murder, but also to having raped Janet Staschak when in fact there was no physical evidence of sexual penetration. Many of the facts he admitted to were stated only after several false starts with persistent prompting by Fire and Dean. He made his confession conditional on the physical evidence: “The only reason I believe I did it is if my hairs were in her car and on her body and in her apartment.”

At the preliminary examination, the trial court, lacking corroborating physical evidence, threw out the confession in a detailed decision. By fastening onto the closest possible suspect, the police apparently did not diligently follow up possible leads. Staschak had taken in roommates to help pay her rent; at first a heterosexual couple who were dealing drugs and later a homosexual couple. She had evicted both couples, and both had left her in some fear. It seems likely that by fastening on Sawyer, the Clearwater officers let the real culprits escape. The trial judge described the interrogation ses- sion as an intellectual wrestling match. The Florida Court of Appeals agreed and upheld the suppression of the confession.

Preventing False Confessions. As noted above, Ofshe and Leo do not recommend abolishing police interroga- tion, but they do have recommendations to lessen the pos- sibility of false confessions. One recommendation, discussed earlier, is that custodial interrogations be video- taped. A lengthy interrogation contains so many subtle, forward-moving points of persuasion-threat-coercion, such as maximization-minimization techniques, that “it is beyond human ability to remember just what happened.” Since interrogators are zealous in achieving their goal of obtaining confession, they are naturally biased and simply will not see that they did anything that might induce a false confession.

Ofshe and Leo’s central point is that false confes- sions come about when commonplace interrogation methods (including the verbal fabrication of “evidence”) are used improperly, inappropriately, or ineptly.84

Therefore, police training is critical to avoiding false confessions. Police need to be educated in the facts of false confessions and to understand that they do occur. Since there is a subtle difference between the proper and

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Interrogation and the Law of Confessions 429

SUMMARY

The Constitution protects against abusive interrogation by the due process exclusionary rule of involuntary con- fessions, the Fifth Amendment privilege against self- incrimination for suspects who have not yet been indicted, and the Sixth Amendment right to counsel for those who have been formally charged. The privilege against self-incrimination allows “natural persons” who are sworn to testify in formal proceedings to claim the privilege if their testimony would tend to incriminate them. The privilege does not bar the taking and use of physical evidence, including a person’s appearance and evidence from his body (e.g., hair, blood, DNA), to con- vict that person. The privilege prevents a person from having to face the “cruel trilemma” of self-accusation, perjury, or contempt. When applicable, the privilege against self-incrimination is an absolute bar against the use of compelled testimony taken from natural persons. The privilege may not be claimed to protect against civil commitment, as under Sexually Dangerous Person Acts.

Under the Due Process Clause, state or federal confessions or admissions are inadmissible if they are not made voluntarily. Statements obtained by threats, promises, the use of force, or undue psychological pressure are involuntary and inadmissible as due process violations. The Court gave various purposes of the

voluntariness rule: to ensure accurate confessions, to prevent egregious police behavior, and to ensure that a confession is the product of a free and rational choice. Judicial displeasure with the subjectivity of the volun- tariness test led the Supreme Court to seek a more concrete rule. In 1963 and 1964, the Supreme Court incorporated the Sixth Amendment right to the assistance of counsel and the privilege against self-incrimination.

Miranda v. Arizona (1966) held that custodial inter- rogation by police is inherently coercive, requiring that police inform suspects of their rights in order to dispel the coercive atmosphere of police custody. Four warnings must be given: that the suspect has a right to remain silent; that any statement may be used as evidence against him; that he has a right to the presence of an attorney; and that if he cannot afford an attorney, one will be appointed. A defendant may waive these rights if the waiver is made vol- untarily, knowingly, and intelligently.

Following the Miranda decision, a more conserva- tive Supreme Court declared that Miranda warnings were not themselves constitutional rights but prophylactic rules designed to protect the underlying Fifth Amendment right against self-incrimination. As a result, statements taken in violation of Miranda could be used to

improper use of the psychological interrogation, the most important factor is for police to be aware that when they have a possible suspect, as opposed to a likely sus- pect, they should seek corroborating evidence. “If police and prosecutors recognized that the mere admission ‘I did it’ is not necessarily a true statement, they would be far less likely to arrest and prosecute suspects who give false confessions.”85

The last recommendation is that trial judges “should evaluate the reliability of confession statements,” as they do hearsay statements, to determine whether they should be allowed into evidence. “Oddly, the constitu- tional law of criminal procedure has no substantive safe- guards in place to specifically prevent the admission of even demonstrably false confessions.” The constitutional rules for confessions under the Fifth and Sixth amend- ments are designed to ensure procedural regularity but not reliability, and the same has become true under the due process voluntariness test. Given this constitutional vacuum, it is critically important for judges to perform this task. The stakes for fairness are high: “It has been

shown that placing a confession before a jury is tanta- mount to an instruction to convict, even when the confes- sion fails to accurately describe the crime, fails to produce corroboration, and is contradicted by consider- able evidence pointing to a suspect’s innocence.” Therefore, judges should demand that confessions dis- play a minimal level of reliability. This can be done with- out any change in statutes or court rules. Judges routinely rule on admissibility and would, for example, not allow a jury to see a photograph that had been doctored. “A false confession is analogous to a doctored photograph. The mechanism for creating it is the ancient technology of human influence carried forward into the interrogation room.”

A short decade ago, there was at best a vague aware- ness that false confessions were a rare and tragic human failing. Recent scholarship has brought the problem to the forefront. Judges, prosecutors, leaders of the bar, and police officials have no reason to claim ignorance. It remains to be seen if the legal world will respond to this challenge.

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impeach the defendant and to lead to other evidence. The Court also allowed the use of warned confessions taken after a violation of the Miranda rule. A public safety exception was created under this theory, allowing the admission into evidence of unwarned statements made in answers to questions designed to protect the safety of arresting officers and others in the immediate area (New York v. Quarles, 1984).

Despite this, Dickerson v. United States (2000) held that the Miranda warnings were constitutional rules that could not be overridden by a congressional statute purporting to reinstate the voluntariness test as the sole measure of the constitutionality of confessions in federal cases. The Supreme Court recognized that Miranda had become so widely accepted that the concerns of prece- dent (stare decisis) compelled a recognition of the rule as being constitutional. But the effect of Dickerson has been put into question by Chavez v. Martinez (2003), which held that a simple failure to read Miranda warn- ings is not a violation of any right. A plurality of the Court held that the privilege and the Miranda warnings operate only as exclusionary rules, so that violations occur only when compelled evidence is sought to be introduced.

More recently, the Supreme Court has continued to interpret Miranda as a rule with exceptions, even though it is deemed a constitutional ruling. Therefore, physical evidence obtained in violation of Miranda is admissible (U.S. v. Patane, 2004). On the other hand, police cannot rely on the rule of Oregon v. Elstad (1985) to “cure” a statement taken in violation of Miranda by administering warnings and reinterrogating a suspect where the “second” interrogation is part of a single interrogation session (Missouri v. Seibert, 2004). The Fourteenth Amendment due process voluntariness test exists as a backstop to, and not a replacement for, the Miranda rule.

Numerous cases clarify the meaning of Miranda. Warnings need not be given in the precise language found in Miranda as long as the correct understanding of the warnings is conveyed. Police do not have to add anything to the warnings, such as the consequences of confessing or their knowledge that the suspect may have committed crimes that are not the immediate subject of the questioning. The prosecution has the burden of proving that a waiver is made voluntarily. A waiver is not presumed from silence, and an oral waiver is allow- able as long as it was made expressly and is shown on the record. Written waivers are the common form of proving that the rights to silence and counsel were waived voluntarily.

Police must cease questioning a suspect who has waived his or her rights but indicates during interrogation the wish to terminate the interrogation. However, police

may resume questioning at a later time if the resumption is reasonable. Police must cease questioning a suspect who personally and clearly invokes a desire to see an attorney but not another kind of counselor. The police may not thereafter resume questioning unless it is initiated by the suspect. This rule is violated if an officer in a department reinterrogates a suspect who invoked counsel in ignorance of his or her prior request for an attorney. Simple consultation with a lawyer does not dispel Edwards protection; a defendant has a right, after invok- ing counsel, to be questioned by police or prosecutors only with counsel present.

A person is in Miranda custody if the circum- stances or surroundings are objectively coercive. Depending on the circumstances, interviews in one’s home, at a police station, or by a probation officer may not be coercive. Interrogation in prison, even for a crime unrelated to the original crime, requires Miranda warn- ings. Questioning by a patrol officer after a routine traffic stop is generally not custodial because this kind of common detention is in public and lacks the coercive atmosphere of the police station. Questions designed to produce an incriminating answer or questions asked after a person has been arrested at the roadside constitute custodial interrogation.

Interrogation consists of express questioning or its functional equivalent: words or actions on the part of the police (other than normally attendant to arrest and cus- tody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. Deception by police interrogators is allowed. Undercover agents, in or out of jail, are not required to give Miranda warnings when they ask incriminating questions because the interrogation is not conducted in a coercive atmosphere.

The war on terrorism has raised concerns about the use of excessive force by American agents seeking back- ground information from suspects. A federal court has ruled that U.S. agents must read Miranda warnings to sus- pects interrogated overseas in order for their statements to be admissible in U.S. courts.

Once a person is formally arraigned, the police may not question or eavesdrop on him or her without a lawyer present. A defendant may waive this Sixth Amendment right after being read Miranda warnings. This rule was violated in Brewer v. Williams (1977) when an officer made the functional equivalent of an interrogation designed to elicit a response by delivering a Christian burial speech to an isolated mental patient. Undercover agents who investigate a person who has been formally charged must not ask any questions or initiate conversa- tions likely to generate incriminating statements. They may, however, listen for such statements, which are then admissible.

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Interrogation and the Law of Confessions 431

LEGAL PUZZLES

HOW HAVE COURTS DECIDED THESE CASES?

Interrogation

7–1. A high school liaison officer approached two males walking back and forth in front of the school, asked them to identify themselves, and asked them what they were doing in the area. One identified himself as Pha Vue. The officer recognized Vue’s name because the county sheriff’s department had issued a warrant for Vue for attempted murder. The officer arrested Vue. While being transported to the county jail, Vue refused to answer any questions posed by investigator Ronald Smith. Two weeks later, Vue was transported from the county jail to the Green Bay Police Department to be fin- gerprinted and photographed. While waiting for the pic- tures to be developed, Smith told Vue that he did not want to ask him any questions. Vue was there only for the photo and ID processing. Vue then asked Smith about the length of time he was facing if convicted. Smith stated that it was “something like 90 to 100 years.” Vue then stated, “That’s if you have any wit- nesses, right?” Vue had not been given his Miranda warning.

Was Vue’s statement admissible?

Held. Yes. Vue had clearly invoked his right to remain silent during transport to the jail. Vue’s statement, however, was spontaneous and volunteered. The state- ment was not given as an answer to a question by the police. Smith had specifically told Vue that he did not want to ask him any questions and that he was there only for the photo and ID processing. Vue asked Smith about the length of time he was facing, and Smith told him. Vue’s statement was in response to Smith’s answer. This statement is admissible under Miranda for two reasons. First, as Miranda points out, “volun- teered statements of any kind are not barred by the Fifth Amendment.” Second, Miranda does not apply to all statements resulting from police contact, but only those statements resulting from a custodial interrogation of a defendant. Here, the defendant was in custody when he made the statement at issue, but there was no interrogation by the police. Nor were there “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” (Rhode Island v. Innis, 1980).

State v. Vue, 246 Wis. 2d 990, 632 N.W.2d 125 (2001)

Custody

7–2. Asif Mahmood, a recent immigrant from Pakistan, was charged with engaging in marriage fraud to evade the immigration laws. One morning at about 11:30 A.M., three Immigration and Customs Enforcement (ICE) agents arrived at his residence to investigate a report by a woman purporting to be Mahmood’s ex-girlfriend who claimed that he had paid her money to marry him. In an application to change his immigration status, Mahmood claimed to be married. The agents wanted to know whether this marriage to Miriam Santos was legitimate.

Mahmood let the agents in voluntarily. Two agents, without asking permission, conducted a “protective sweep” of the premises, ordering Mahmood to remain in the living room, within view at all times of at least one agent. Satisfied that they were alone, the agents asked Mahmood a series of questions without informing him that he was free to decline to answer or that he could ter- minate the interrogation at his discretion. Despite his obvious foreign accent and tentative grasp of English, the agents did not ask if he would prefer to speak with them through an interpreter. Whenever Mahmood asked the agents to slow down or repeat themselves, they became visibly annoyed and harsh in their tone. He was unaware that he had the right to remain silent, to seek the advice of an attorney, or to ask the agents to leave. The questioning lasted an hour, and the agents’ behavior during the ses- sion, including preventing Mahmood from answering a ringing telephone, left him with the reasonable conclusion that he was not free to leave or to ask the agents to leave. At the end of the hour, he admitted that Miriam Santos did not live with him at his residence and that he had paid her to marry him. He provided a written statement to that effect. During the ninety-five-minute interrogation, the agents did not ask Mahmood if he cared to use the bath- room, and he did not feel he was entitled to do so. He was anxious and concluded that he was obliged to be compli- ant. One agent described Mahmood as meek, mild, and very soft-spoken.

Was Mahmood in custody for purposes of Miranda during this interrogation?

Holding available from instructor.

Voluntariness; Voluntary Waiver

7–3. Mayhew killed his ex-girlfriend and her fiancé and then abducted his daughter and took her across state lines. He shot an officer who stopped him for a minor traffic offense and then killed his daughter and shot himself.

IS B

N 1

-2 5

6 -3

6 5

8 0

-7

G A R R E T T , M E G A N 1 3 2 4 T S

432 Chapter 7

On the way to the hospital in an ambulance, Mayhew was administered Miranda warnings, waived his rights, and made incriminating statements to the police. The entire conversation in the ambulance was videotaped.

Mayhew was in moderate pain during the interroga- tion, as evidenced by grimaces and moans, but he never complained of “unbearable” discomfort. He complained of blood in the back of his throat. His eyes were closed when he was loaded into the ambulance, prompting the paramedics to instruct him to open his eyes. The para- medics used a blood pressure cuff and an intravenous drip to treat him. He did not lose consciousness at any point during the ambulance ride, but he claims that he was gen- erally confused at the time because of the days’ traumatic events, as supported by the EMT report, which noted that Mayhew was “confused to time/place/surroundings.” During interrogation, he made a number of inquiries to the officers. A police lieutenant occasionally pulled Mayhew’s oxygen mask down toward his lower lip and chin in an apparent effort to hear his words clearly. Each time the mask was removed, the paramedics returned the mask over Mayhew’s mouth and nose. On two separate occasions, the lieutenant, who was a trained emergency medical first responder, aided the paramedics. Mayhew was not intoxicated and had taken no prescription or illicit drugs. Many of his statements were couched in voluntary language, he coherently answered almost all of the ques- tions posed, and he answered those questions with absolute accuracy.

Did Mayhew voluntarily waive his Miranda rights, and were his statements voluntary?

Holding available from instructor.

Two-Step Interrogation

7–4. Gonzalez-Lauzan was serving a ten-month sentence for violating supervised release on a previous conviction. Officers took him to a federal courthouse to question him about his involvement in a murder. The officers, who agreed among themselves in advance not to administer

Miranda warnings, instructed Gonzalez-Lauzan several times just to listen and told him that they did not have any questions. “The officers hoped that the strength of this evidence would persuade Gonzalez-Lauzan to talk about his participation in the killing.” Approximately two and a half hours into the meeting, Gonzalez-Lauzan stated sud- denly, “Okay, you got me.” He was then immediately read his Miranda rights, signed a waiver form, and subse- quently made multiple incriminating statements during the interrogation.

Were the statements Gonzalez-Lauzan made after Miranda warnings were read admissible?

Holding available from instructor.

Jail Plant: Eliciting Evidence or Listening Post

7–5. Manning was arrested and jailed in 1990 in the Cook County (Illinois) jail on kidnapping charges relating to a crime committed in Missouri. Manning was also a suspect in an Illinois murder, and the FBI planted a gov- ernment informant in his cell to try to collect evidence about the Illinois crimes. The informant’s agreement spec- ified that he was not to elicit any information about Manning’s pending Missouri charges. The informant dis- obeyed these orders and did talk about the Missouri charges; he agreed to help Manning fabricate an alibi defense using the informant’s girlfriend, Sylvia Herrera. The FBI then met with Herrera to go over what informa- tion she should attempt to elicit from Manning. Pursuant to her agreement with the FBI, Herrera began to record her conversations with Manning. She testified extensively about her work as a government informant and the plan to fabricate an alibi defense. Manning was charged by com- plaint rather than indictment, was convicted of kidnapping, and received two life sentences.

Did the introduction of Herrera’s testimony violate Manning’s right to counsel?

Holding available from instructor.