SELF-INCRIMINATION

Development and Scope

The source of the Self-Incrimination Clause was the maxim “nemo tenetur seipsum accusare,” that “no man is bound to accuse himself.” The maxim is but one aspect of two different systems of law enforcement which competed in England for acceptance; the accusatorial and the inquisitorial. In the accusatorial system, which predated the reign of Henry II but was expanded and extended by him, first the community and then the state by grand and petit juries proceeded against alleged wrongdoers through the examination of others, and in the early years through examination of the defendant as well. The inquisitorial system, which developed in the ecclesiastical courts, compelled the alleged wrongdoer to affirm his culpability through the use of the oath ex officio. Under the oath, an official had the power to make a person before him take an oath to tell the truth to the full extent of his knowledge as to all matters about which he would be questioned; before administration of the oath the person was not advised of the nature of the charges against him, or whether he was accused of crime, and was also not informed of the nature of the questions to be asked.184

The use of this oath in Star Chamber proceedings, especially to root out political heresies, combined with opposition to the ecclesiastical oath ex officio, led over a long period of time to general acceptance of the principle that a person could not be required to accuse himself under oath in any proceeding before an official tribunal seeking information looking to a criminal prosecution, or before a magistrate investigating an accusation against him with or without oath, or under oath in a court of equity or a court of common law.

185 The precedents in the colonies are few in number, but following the Revolution six states had embodied the privilege against self-incrimination in their constitutions,186 and the privilege was one of those recommended by several state ratifying conventions for inclusion in a federal bill of rights.187 Madison’s version of the clause read “nor shall be compelled to be a witness against himself,” but a House amendment inserted “in any criminal case” into the provision.188

The historical studies cited demonstrate that in England and the colonies the privilege was narrower than the interpretation now prevailing. Of course, constitutional guarantees often expand, or contract, over time as judges adapt underlying rules to new factual patterns and practices. The difficulty is that the Court has generally not articulated the objectives underlying the privilege, usually citing a “complex of values” when it has attempted to state the interests served.189 Commonly mentioned in numerous cases was the assertion that the privilege was designed to protect the innocent and further the search for truth.190

It appears now, however, that the Court has rejected both of these as inapplicable and has settled upon the principle that the clause serves two interrelated interests: the preservation of an accusatorial system of criminal justice, which goes to the integrity of the judicial system, and the preservation of personal privacy from unwarranted governmental intrusion.191 To protect these interests and to preserve these values, the privilege “is not to be interpreted literally.” Rather, the “sole concern [of the privilege] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts.”192 Furthermore, “[t]he privilege afforded not only extends to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute . . . ”193

The privilege against self-incrimination parries the general obligation to provide testimony under oath when called upon, but it also applies in police interrogations. In all cases, the privilege must be supported by a reasonable fear that a response will be incriminatory. The issue is a matter of law for a court to determine,194 and therefore, with limited exceptions, one must claim the privilege to benefit from it.195 Otherwise, silence in the face of questioning may be insufficient to invoke the privilege because it may not afford an adequate opportunity either to test whether information withheld falls within the privilege or to cure a violation through a grant of immunity.196 A witness who fails to claim the privilege explicitly when an affirmative claim is required is deemed to have waived it, and waiver may be found where the witness has answered some preliminary questions but desires to stop at a certain point.197 However, an assertion of innocence in conjunction with a claim of the privilege does not obviate the right of witnesses to invoke it, as their responses still may provide the government with evidence it may later seek to use against them.198

Although individuals must have reasonable cause to apprehend danger and cannot be the judge of the validity of their claims, a court that would deny a claim of the privilege must be “perfectly clear, from a careful consideration of all the circumstances in the case, that the individual is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate.”199 To reach a determination, furthermore, a trial judge may not require a witness to disclose so much of the danger as to render the privilege nugatory. As the Court observed: 200

The privilege against self-incrimination is a personal one and cannot be used by or on behalf of any organization, such as a corporation. Thus, a corporation cannot object on self-incrimination grounds to a subpoena of its records and books or to the compelled testimony of those corporate agents who have been given personal immunity from criminal prosecution.201 Nor may a corporate official with custody of corporate documents that incriminate him personally resist their compelled production on the assertion of his personal privilege.202

A witness has traditionally been able to claim the privilege in any proceeding whatsoever in which testimony is legally required when his answer might be used against him in that proceeding or in a future criminal proceeding or when it might be exploited to uncover other evidence against him.203 Incrimination is not complete once guilt has been adjudicated, and hence the privilege may be asserted during the sentencing phase of trial.204 Conversely, there is no valid claim on the ground that the information sought can be used in proceedings which are not criminal in nature,205 and there can be no valid claim if there is no criminal prosecution206 The Court in recent years has also applied the privilege to situations, such as police interrogation of suspects, in which there is no legal compulsion to speak.207

What the privilege protects against is compulsion of “testimonial” disclosures. Thus, the clause is not offended by such non-testimonial compulsions as requiring a person in custody to stand or walk in a police lineup, to speak prescribed words, to model particular clothing, or to give samples of handwriting, fingerprints, or blood.208 A person may be compelled to produce specific documents even though they contain incriminating information.209 If, however, the existence of specific documents is not known to the government, and the act of production informs the government about the existence, custody, or authenticity of the documents, then the privilege is implicated.210 Application of these principles resulted in a holding that the Independent Counsel could not base a prosecution on incriminating evidence identified and produced as the result of compliance with a broad subpoena for all information relating to the individual’s income, employment, and professional relationships.211

The protection is against “compulsory” incrimination, and traditionally the Court has treated within the clause only those compulsions which arise from legally enforceable obligations, culminating in imprisonment for refusal to testify or to produce documents.212 The compulsion need not be imprisonment, but can also be termination of public employment213 or disbarment of a lawyer214 as a legal consequence of a refusal to make incriminating admissions. The degree of coercion may also prove decisive, the Court having ruled that moving a prisoner from a medium security unit to a maximum security unit was insufficient to compel him to incriminate himself in spite of the attendant loss of privileges and the harsher living conditions.215 However, although it appears that prisoners216 and probationers217 have less protection than others do, the Court has not developed a clear doctrinal explanation to identify the differences between permissible and impermissible coercion.218

It has long been the rule that a defendant who takes the stand on his own behalf does so voluntarily, and cannot then claim the privilege to defeat cross-examination on matters reasonably related to the subject matter of his direct examination,219 and that such a defendant may be impeached by proof of prior convictions.220 But, in Griffin v. California,221 the Court refused to permit prosecutorial or judicial comment to the jury upon a defendant’s refusal to take the stand on his own behalf, because such comment was a “penalty imposed by courts for exercising a constitutional privilege” and “[i]t cuts down on the privilege by making its assertion costly.”222 Prosecutors’ comments violating the Griffin rule can nonetheless constitute harmless error.223 Nor may a prosecutor impeach a defendant’s trial testimony through use of the fact that upon his arrest and receipt of a Miranda warning he remained silent and did not give the police the exculpatory story he told at trial.224 But where the defendant took the stand and testified, the Court permitted the impeachment use of his pre-arrest silence when that silence had in no way been officially encouraged, through a Miranda warning or otherwise.225

Further, the Court held inadmissible at the subsequent trial a defendant’s testimony at a hearing to suppress evidence wrongfully seized, because use of the testimony would put the defendant to an impermissible choice between asserting his right to remain silent and invoking his right to be free of illegal searches and seizures.226 The Court also proscribed the introduction at a second trial of the defendant’s testimony at his first trial, given to rebut a confession which was subsequently held inadmissible, since the testimony was in effect “fruit of the poisonous tree,” and had been “coerced” from the defendant through use of the confession.227 Potentially most far-reaching was a holding that invalidated the penalty structure of a statute under which defendants could escape a possible death sentence by entering a guilty plea; the statute “needlessly encourage[d]” waivers of defendant’s Fifth Amendment right to plead not guilty and his Sixth Amendment right to a jury trial.228

Although this “needless encouragement” test assessed the nature of the choice required to be made by defendants against the strength of the governmental interest in the system requiring the choice, the Court soon developed another test stressing the voluntariness of the choice. A guilty plea entered by a defendant who correctly understands the consequences of the plea is voluntary unless coerced or obtained under false pretenses; moreover, there is no impermissible coercion where the defendant has the effective assistance of counsel.229 The Court in an opinion by Justice Harlan then formulated still another test in holding that a defendant in a capital case in which the jury in one process decides both guilt and sentence could be put to a choice between remaining silent on guilt or admitting guilt and being able to put on evidence designed to mitigate the possible sentence. The pressure to take the stand in response to the sentencing issue, said the Court, was not so great as to impair the policies underlying the Self-Incrimination Clause, policies described in this instance as proscription of coercion and of cruelty in putting the defendant to an undeniably “hard” choice.230 Similarly, the Court held that requiring a defendant to give notice to the prosecution before trial of his intention to rely on an alibi defense and to give the names and addresses of witnesses who will support it does not violate the clause.231 Nor does it violate a defendant’s self-incrimination privilege to create a presumption upon the establishment of certain basic facts from which the jury may infer the defendant’s guilt unless he rebuts the presumption.232

The obligation to testify is not relieved by this clause, if, regardless of whether incriminating answers are given, a prosecution is precluded,233 or if the result of the answers is not incrimination, but rather harm to reputation or exposure to infamy or disgrace.234 The clause does not prevent a public employer from discharging an employee who, in an investigation specifically and narrowly directed at the performance of the employee’s official duties, refuses to cooperate and to provide the employer with the desired information on grounds of self-incrimination.235 But it is unclear under what other circumstances a public employer may discharge an employee who has claimed his privilege before another investigating agency.236

Finally, the rules established by the clause and the judicial interpretations apply against the states to the same degree that they apply against the Federal Government,237 and neither sovereign can compel discriminatory admissions that would incriminate the person in the other jurisdiction.238 There is no “cooperative internationalism” that parallels the cooperative federalism and cooperative prosecution on which application against states is premised, and consequently concern with foreign prosecution is beyond the scope of the Self-Incrimination Clause.239

The Power To Compel Testimony and Disclosure

Immunity.

“Immunity statutes, which have historical roots deep in Anglo-American jurisprudence, are not incompatible [with the values of the Self-Incrimination Clause]. Rather they seek a rational accommodation between the imperatives of the privilege and the legitimate demands of government to compel citizens to testify. The existence of these statutes reflects the importance of testimony, and the fact that many offenses are of such a character that the only persons capable of giving useful testimony are those implicated in the crime.”240 Apparently the first immunity statute was enacted by Parliament in 1710241 and it was widely copied in the colonies. The first federal immunity statute was enacted in 1857, and immunized any person who testified before a congressional committee from prosecution for any matter “touching which” he had testified.242

Revised in 1862 so as merely to prevent the use of the congressional testimony at a subsequent prosecution of any congressional witness,243 the statute was soon rendered unenforceable by the ruling in Counselman v. Hitchcock244 that an analogous limited immunity statute was unconstitutional because it did not confer an immunity coextensive with the privilege it replaced. Counselman was ambiguous with regard to its grounds because it identified two faults in the statute: it did not proscribe “derivative” evidence245 and it prohibited only future use of the compelled testimony.246 The latter language accentuated a division between adherents of “transactional” immunity and of “use” immunity which has continued to the present.247 In any event, following Counselman, Congress enacted a statute that conferred transactional immunity as the price for being able to compel testimony,248 and the Court sustained this law in a five-to-four decision.249

“The 1893 statute has become part of our constitutional fabric and has been included ‘in substantially the same terms, in virtually all of the major regulatory enactments of the Federal Government.’ ”250 So spoke Justice Frankfurter in 1956, broadly reaffirming Brown v. Walker and upholding the constitutionality of a federal immunity statute.251 Because all but one of the immunity acts passed after Brown v. Walker were transactional immunity statutes,252 the question of the constitutional sufficiency of use immunity did not arise, although dicta in cases dealing with immunity continued to assert the necessity of the former type of grant.253 But, beginning in 1964, when it applied the Self-Incrimination Clause to the states, the Court was faced with the problem that arose because a state could grant immunity only in its own courts and not in the courts of another state or of the United States.254 On the other hand, to foreclose the states from compelling testimony because they could not immunize a witness in a subsequent “foreign” prosecution would severely limit state law enforcement efforts. Therefore, the Court emphasized the “use” restriction rationale of Counselman and announced that as a “constitutional rule, a state witness could not be compelled to incriminate himself under federal law unless federal authorities were precluded from using either his testimony or evidence derived from it,” and thus formulated a use restriction to that effect.255 Then, while refusing to adopt the course because of statutory interpretation reasons, the Court indicated that use restriction in a federal regulatory scheme requiring the reporting of incriminating information was “in principle an attractive and apparently practical resolution of the difficult problem before us,” citing Murphy with apparent approval.256

Congress thereupon enacted a statute replacing all prior immunity statutes and adopting a use-immunity restriction only.257 Soon tested, this statute was sustained in Kastigar v. United States.258 “[P]rotection coextensive with the privilege is the degree of protection which the Constitution requires,” wrote Justice Powell for the Court, “and is all that the Constitution requires. . . .”259 “Transactional immunity, which accords full immunity from prosecution for the offense to which the compelled testimony relates, affords the witness considerably broader protection than does the Fifth Amendment privilege. The privilege has never been construed to mean that one who invokes it cannot subsequently be prosecuted. Its sole concern is to afford protection against being ‘forced to give testimony leading to the infliction of penalties affixed to . . . criminal acts.’ Immunity from the use of compelled testimony and evidence derived directly and indirectly therefrom affords this protection. It prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness.”260

Required Records Doctrine.

Although the privilege is appli-cable to an individual’s papers and effects,261 it does not extend to corporate persons; hence corporate records, as has been noted, are subject to compelled production.262 In fact, however, the Court has greatly narrowed the protection afforded in this area to natural persons by developing the “required records” doctrine. That is, it has held “that the privilege which exists as to private papers cannot be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.’ ”263 This exception developed out of, as Justice Frankfurter showed in dissent, the rule that documents which are part of the official records of government are wholly outside the scope of the privilege; public records are the property of government and are always accessible to inspection. Because government requires certain records to be kept to facilitate the regulation of the business being conducted, so the reasoning goes, the records become public at least to the degree that government could always scrutinize them without hindrance from the record-keeper. “If records merely because required to be kept by law ipso
facto
become public records, we are indeed living in glass houses. Virtually every major public law enactment—to say nothing of State and local legislation—has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume.”264

“It may be assumed at the outset that there are limits which the government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself.”265 But the only limit that the Court suggested in Shapiro was that there must be “a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator.”266 That there are limits established by the Self-Incrimination Clause itself rather than by a subject matter jurisdiction test is evident in the Court’s consideration of reporting and disclosure requirements implicating but not directly involving the required-records doctrine.

Reporting and Disclosure.

The line of cases begins with United States v. Sullivan,267 in which a unanimous Court held that the Fifth Amendment did not privilege a bootlegger in not filing an income tax return because the filing would have disclosed the illegality in which he was engaged. “It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime,” Justice Holmes stated for the Court.268 However, “[i]f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return . . . .”269 Using its taxing power to reach gambling activities over which it might otherwise not have had jurisdiction,270 Congress enacted a complicated statute imposing an annual occupational tax on gamblers and an excise tax on all their wages, and coupled the tax with an annual registration requirement under which each gambler must file with the IRS a declaration of his business with identification of his place of business and his employees and agents, filings which were made available to state and local law enforcement agencies. These requirements were upheld by the Court against self-incrimination challenges on the three grounds that (1) the privilege did not excuse a complete failure to file, (2) because the threshold decision to gamble was voluntary, the required disclosures were not compulsory, and (3) because registration required disclosure only of prospective conduct, the privilege, limited to past or present acts, did not apply.271

Constitutional limitations appeared, however, in Albertson v. SACB,272 which struck down under the Self-Incrimination Clause an order pursuant to statute requiring registration by individual members of the Communist Party or associated organizations. “In Sullivan the questions in the income tax return were neutral on their face and directed at the public at large, but here they are directed at a highly selective group inherently suspect of criminal activities. Petitioners’ claims are not asserted in an essentially non-criminal and regulatory area of inquiry, but against an inquiry in an area permeated with criminal statutes, where response to any of the form’s questions in context might involve the petitioners in the admission of a crucial element of a crime.”273

The gambling tax reporting scheme was next struck down by the Court.274 Because of the pervasiveness of state laws prohibiting gambling, said Justice Harlan for the Court, “the obligations to register and to pay the occupational tax created for petitioner ‘real and appreciable,’ and not merely ‘imaginary and unsubstantial,’ hazards of self-incrimination.”275 Overruling Kahriger and Lewis, the Court rejected its earlier rationales. Registering per se would have exposed a gambler to dangers of state prosecution, so Sullivan did not apply.276 Any contention that the voluntary engagement in gambling “waived” the self-incrimination claim, because there is “no constitutional right to gamble,” would nullify the privilege.277 And the privilege was not governed by a “rigid chronological distinction” so that it protected only past or present conduct, but also reached future self-incrimination the danger of which is not speculative and insubstantial.278 Significantly, then, Justice Harlan turned to distinguishing the statutory requirements here from the “required records” doctrine of Shapiro. “First, petitioner . . . was not . . . obliged to keep and preserve records ‘of the same kind as he has customarily kept’; he was required simply to provide information, unrelated to any records which he may have maintained, about his wagering activities. This requirement is not significantly different from a demand that he provide oral testimony . . . . Second, whatever ‘public aspects’ there were to the records at issue in Shapiro, there are none to the information demanded from Marchetti. The Government’s anxiety to obtain information known to a private individual does not without more render that information public; if it did, no room would remain for the application of the constitutional privilege. Nor does it stamp information with a public character that the government has formalized its demands in the attire of a statute; if this alone were sufficient, the constitutional privilege could be entirely abrogated by any Act of Congress. Third, the requirements at issue in Shapiro were imposed in ‘an essentially non-criminal and regulatory area of inquiry’ while those here are directed to a ‘selective group inherently suspect of criminal activities.’ . . . The United States’ principal interest is evidently the collection of revenue, and not the punishment of gamblers, . . . but the characteristics of the activities about which information is sought, and the composition of the groups to which inquiries are made, readily distinguish this situation from that in Shapiro.”279

Most recent in this line of cases is California v. Byers,280 which indicates that the Court has yet to settle on an ascertainable standard for judging self-incrimination claims in cases where government is asserting an interest other than criminal law enforcement. Byers sustained the constitutionality of a statute which required the driver of any automobile involved in an accident to stop and give his name and address. The state court had held that a driver who reasonably believed that compliance with the statute would result in self-incrimination could refuse to comply. A plurality of the Court, however, determined that Sullivan and Shapiro applied and not the Albertson-Marchetti line of cases, because the purpose of the statute was to promote the satisfaction of civil liabilities resulting from automobile accidents and not criminal prosecutions, and because the statute was directed to all drivers and not to a group which was either “highly selective” or “inherently suspect of criminal activities.” The combination of a noncriminal motive with the general character of the requirement made too slight for reliance the possibility of incrimination.281 Justice Harlan concurred to make up the majority on the disposition of the case, disagreeing with the plurality’s conclusion that the stop and identification requirement did not compel incrimination.282 However, the Justice thought that, where there is no governmental purpose to enforce a criminal law and instead government is pursuing other legitimate regulatory interests, it is permissible to apply a balancing test between the government’s interest and the individual’s interest. When he balanced the interests protected by the Amendment—protection of privacy and maintenance of an accusatorial system—with the noncriminal purpose, the necessity for self-reporting as a means of securing information, and the nature of the disclosures required, Justice Harlan voted to sustain the statute.283 Byers was applied in Baltimore Dep’t of Social Services v. Bouknight284 to uphold a juvenile court’s order that the mother of a child under the court’s supervision produce the child. Although in this case the mother was suspected of having abused or murdered her child, the order was justified out of concern for the child’s safety—a “compelling reason[ ] unrelated to criminal law enforcement.”285 Moreover, because the mother had custody of her previously abused child only as a result of the juvenile court’s order, the Court analogized to the required records cases to conclude that the mother had submitted to the requirements of the civil regulatory regime as the child’s “custodian.”

Confessions: Police Interrogation, Due Process, and Self-Incrimination

The Common Law Rule.

By the latter part of the eigh-teenth century English and early American courts had developed a rule that coerced confessions were potentially excludable from admission at trial because they were testimonially untrustworthy.286 The Supreme Court at times continued to ground exclusion of involuntary confessions on this common law foundation of unreliability without any mention of the constitutional bar against self-incrimination. Consider this dictum from an 1884 opinion: “[V]oluntary confession of guilt is among the most effectual proofs in the law, . . . [b]ut the presumption upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprives him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law.”287 Subsequent cases followed essentially the same line of thought.288

Then, language in the 1897 case of Bram v. United States opened the door to eventually extending the doctrinal basis for analyzing the admissibility of a confession beyond the common-law test that focused on voluntariness as an indicator of the confession’s trustworthiness as evidence. “In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ”289 However, though this approach290 and the case itself were subsequently approved in several cases,291 the Court would still hold in 1912 that a confession should not be excluded merely because the authorities had not warned a suspect of his right to remain silent,292 and more than once later opinions could doubt “whether involuntary confessions are excluded from federal criminal trials on the ground of a violation of the Fifth Amendment’s protection against self-incrimination, or from a rule that forced confessions are untrustworthy. . . .”293 One reason for this was that the Self-Incrimination Clause had not yet been made applicable to the states, thereby requiring that the admissibility of confessions in state courts be determined under due process standards developed from common-law principles. It was only after the Court extended the Self-Incrimination Clause to the states that a divided Court reaffirmed and extended the 1897 Bram ruling and imposed on both federal and state trial courts new rules for admitting or excluding confessions and other admissions made to police during custodial interrogation.294

McNabb-Mallory Doctrine.

Perhaps one reason the Court did not squarely confront the application of the Self-Incrimination Clause to police interrogation and the admissibility of confessions in federal courts was that, in McNabb v. United States,295 it promulgated a rule excluding confessions obtained after an “unnecessary delay” in presenting a suspect for arraignment after arrest.296 This rule, developed pursuant to the Court’s supervisory power over the lower federal courts297 and hence not applicable to the states,298 was designed to implement the guarantees assured to a defendant by the Federal Rules of Criminal Procedure,299 and was clearly informed with concern over incommunicado interrogation and coerced confessions.300 Although the Court never attempted to specify a minimum time after which delay in presenting a suspect for arraignment could invalidate confessions, Congress in 1968 legislated to set a six-hour period for interrogation following arrest before the suspect must be presented.301 In Corley v. United States,302 the Court held that this legislation merely limited, and did not eliminate, McNabb-Mallory’s exclusionary rule. Thus, confessions within six hours of arrest were admissible to the extent permitted by the statute and Rules of Evidence, whereas, “[i]f the confession occurred before presentment and beyond six hours . . . , the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.”303

State Confession Cases Before Miranda.

In its first encoun-ter with a confession case arising from a state court, the Supreme Court set aside a conviction based solely on confessions extorted through repeated whippings with ropes and studded belts.304 For some 30 years thereafter the Court attempted through a consideration of the “totality of the circumstances” surrounding interrogation to determine whether a confession was “voluntary” and admissible or “coerced” and inadmissible. During this time, the Court was balancing, in Justice Frankfurter’s explication, a view that police questioning of suspects was indispensable in solving many crimes, on the one hand, with the conviction that the interrogation process is not to be used to overreach persons who stand helpless before it.305 “The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.”306 Obviously, a court seeking to determine whether a confession was voluntary operated under a severe handicap, as the interrogation process was in secret with only police and the suspect witness to it, and as the concept of voluntariness referred to the defendant’s mental condition.307 Despite, then, a bountiful number of cases, binding precedents were few.

On the one hand, many of the early cases disclosed clear instances of coercion of a nature that the Court could little doubt produced involuntary confessions. Not only physical torture,308 but other overtly coercive tactics as well were condemned. Chambers v. Florida309 held that five days of prolonged questioning following arrests without warrants and incommunicado detention made the subsequent confessions involuntary. Ashcraft v. Tennessee310 held inadmissible a confession obtained near the end of a 36-hour period of practically continuous questioning, under powerful electric lights, by relays of officers, experienced investigators, and highly trained lawyers. Similarly, Ward v. Texas,311 voided a conviction based on a confession obtained from a suspect who had been questioned continuously over the course of three days while being driven from county to county and told falsely of a danger of lynching. “Since Chambers v. State of Florida, . . . this 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. A number of cases have demonstrated, if demonstrations were needed, that the efficiency of the rack and thumbscrew can be matched, given the proper subject, by more sophisticated modes of ‘persuasion.’ A prolonged interrogation of the accused who is ignorant of his rights and who has been cut off from the moral support of friends and relatives is not infrequently an effective technique of terror.”312

Although the Court would not hold that prolonged questioning by itself made a resultant confession involuntary,313 it did increasingly find coercion present even in intermittent questioning over a period of days of incommunicado detention.314 In Stein v. New York,315 however, the Court affirmed convictions of experienced criminals who had confessed after twelve hours of intermittent questioning over a period of thirty-two hours of incommunicado detention. Although the questioning was less intensive than in the prior cases, Justice Jackson for the majority stressed that the correct approach was to balance “the circumstances of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.”316 By the time of the decision in Haynes v. Washington,317 however, which held inadmissible a confession made by an experienced criminal because of the “unfair and inherently coercive context” in which the confession was made, it was clear that the Court often focused more on the nature of the coercion without regard to the individual characteristics of the suspect.318 Nevertheless, the Court did continue to cite at times age and intelligence as demonstrating the susceptibility of the particular suspects to even mild coercion.319

The “totality of the circumstances” was looked to in determining admissibility. In some of the cases a single factor could be thought to stand out as indicating the involuntariness of the confession,320 but in other cases the Court recited a number of contributing factors, including age, intelligence, incommunicado detention, denial of requested counsel, denial of access to friends, trickery, and other things, without seeming to rank any factor above the others.321 Confessions induced through the exploitation of some illegal action, such as an illegal arrest322 or an unlawful search and seizure,323 were found inadmissible. Where police obtain a subsequent confession after obtaining one that is inadmissible as involuntary, the Court did not assume that the subsequent confession was similarly involuntary, but independently evaluated whether the coercive actions which produced the first continued to produce the later confession.324

From the Voluntariness Standard to Miranda.

Invocation by the Court of a self-incrimination standard for judging the fruits of police interrogation was no unheralded novelty in Miranda v. Arizona.325 Though the historical basis of the rule excluding coerced and involuntary confessions, in both early state confession cases326 and earlier cases from the lower federal courts,327 was their untrustworthiness,328 in Lisenba v. California,329 Justice Roberts drew a distinction between the common law confession rule and the standard of due process. “[T]he fact that the confessions have been conclusively adjudged by the decision below to be admissible under State law, notwithstanding the circumstances under which they were made, does not answer the question whether due process was lacking. The aim of the rule that a confession is inadmissible unless it was voluntarily made is to exclude false evidence. Tests are invoked to determine whether the inducement to speak was such that there is a fair risk the confession is false. . . . The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.” Over the next several years, while the Justices continued to use the terminology of voluntariness, the Court accepted at different times the different rationales of trustworthiness and constitutional fairness.330

Ultimately, however, those Justices who chose to ground the exclusionary rule on the latter consideration predominated, so that, in Rogers v. Richmond,331 Justice Frankfurter spoke for six other Justices in writing: “Our decisions under that [Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system—a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charges against an accused out of his own mouth.” Nevertheless, Justice Frankfurter said in another case, “[n]o single litmus-paper test for constitutionally impermissible interrogation has been evolved.”332 Three years later, in Malloy v. Hogan,333 in the process of applying the Self-Incrimination Clause to the states, Justice Brennan for the Court reinterpreted the line of cases since Brown v. Mississippi334 to conclude that the Court had initially based its rulings on the common-law confession rationale, but that, beginning with Lisenba v. California,335 a “federal standard” had been developed. The Court had engaged in a “shift [that] reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay.” Today, continued Justice Brennan, “the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897,” when Bram v. United States had announced that the Self-Incrimination Clause furnished the basis for admitting or excluding evidence in federal courts.336

One week after the decision in Malloy v. Hogan, the Court defined the rules of admissibility of confessions in different terms: although it continued to emphasize voluntariness, it did so in self-incrimination terms rather than in due process terms. In Escobedo v. Illinois,337 it held inadmissible a confession obtained from a suspect in custody who repeatedly had requested and been refused an opportunity to consult with his retained counsel, who was at the police station seeking to gain access to his client.338 Although Escobedo appeared in the main to be a Sixth Amendment right-to-counsel case, the Court at several points emphasized, in terms that clearly implicated self-incrimination considerations, that the suspect had not been warned of his constitutional rights.339

Miranda v. Arizona.

In Miranda v. Arizona, a custodial confession case decided two years after Escobedo, the Court deemphasized the Sixth Amendment holding of Escobedo and made the Fifth Amendment self-incrimination rule preeminent.340 The core of the Court’s prescriptive holding in Miranda is as follows: “[T]he 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. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”341

In the opinion of the Miranda Court, police interrogation as conceived and practiced was inherently coercive and the resulting intimidation, though informal and legally sanctionless, was contrary to the protection to be afforded in a system that convicted on the basis of evidence independently secured. In the Court’s view, this premise underlaid the law in the federal courts since 1897, and the application of the Self-Incrimination Clause to the states in 1964 necessitated the application of the principle in state courts as well. Thereafter, state and local police interrogation practices need be structured to ensure that suspects not be stripped of the ability to make a free and rational choice between speaking and not speaking. The warnings and the provision of counsel were essential, the Court said, in custodial interrogations.342 “In these cases [presently before the Court],” said Chief Justice Warren, “we might not find the defendants’ statements to have been involuntary in traditional terms[, but o]ur concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest.”343 It was thus not the application of the Self-Incrimination Clause to police interrogation in Miranda that constituted the major change from precedent but rather the prescriptive series of warnings and guarantees which the Court imposed as security for the observance of the privilege.

Although the Court’s decision rapidly became highly controversial and the source of much political agitation, including playing a prominent role in the 1968 presidential election, the Court has continued to adhere to it,344 albeit not without considerable qualification. Nevertheless, the constitutional status of the Miranda warnings has remained clouded in uncertainty. Had the Court announced a constitutionally compelled rule, or merely a supervisory rule that could be superseded by statute? In 1968, Congress enacted a statute, codified at 18 U.S.C. § 3501, designed to set aside Miranda in the federal courts and to reinstate the traditional voluntariness test.345 The statute lay unimplemented, for the most part, due to constitutional doubts about it. Meanwhile, the Court created exceptions to the Miranda warnings over the years, and referred to the warnings as “prophylactic”346 and “not themselves rights protected by the Constitution.”347 There were even hints that some Justices might be willing to overrule the decision.

In Dickerson v. United States,348 the Court addressed the foundational issue, finding that Miranda was a “constitutional decision” that could not be overturned by statute, and consequently that 18 U.S.C. § 3501, which provided for a less strict “voluntariness” standard for the admissibility of confessions, could not be sustained. Consistent application of Miranda warnings to state proceedings necessarily implied a constitutional base, the Court explained, since federal courts “hold no supervisory authority over state judicial proceedings.”349 Moreover, Miranda itself had purported to “give concrete constitutional guidance to law enforcement agencies and courts to follow.”350 The two dissenting Justices in Dickerson maintained that the majority’s characterization of Miranda as providing concrete constitutional guidance fell short of holding that custodial interrogation not preceded by Miranda warnings was unconstitutional, a position with which the dissenters pointedly disagreed.351 Eleven years after Dickerson, in the 2011 case J.D.B. v. North Carolina, the number of Justices asserting that Miranda was not a constitutional rule grew to four.352 Also, that Miranda may be rooted in the Constitution does not, according to the Court, mean that the precise articulation of the warnings in it is “immutable.”353

Beyond finding that Miranda has, at the least, “constitutional underpinnings,” the Dickerson Court also rejected a request to overrule Miranda. “Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance,” Chief Justice Rehnquist wrote for the seven-Justice majority, “the principles of stare decisis weigh heavily against overruling it now.” There was no special justification for overruling the decision; subsequent cases had not undermined the decision’s doctrinal underpinnings, but rather had “reaffirm[ed]” its “core ruling.” Moreover, Miranda warnings had “become so embedded in routine police practice [that they] have become part of our national culture.”354

As to the viability of Miranda claims in federal habeas corpus cases, the Court had suggested in 1974 that most claims could be disallowed,355 but such a course was squarely rejected in 1993. The Court ruled in Withrow v. Williams that Miranda protects a fundamental trial right of the defendant, unlike the Fourth Amendment exclusionary rule addressed in Stone v. Powell,356 and claimed violations of Miranda merited federal habeas corpus review because they relate to the correct ascertainment of guilt.357 The purposes of the Miranda rule differed from the Mapp v. Ohio358 exclusionary rule denied enforcement in habeas proceedings in Stone, the Court explained, because the primary purpose of Mapp was to deter future Fourth Amendment violations, a purpose that the Court claimed would only be marginally advanced by allowing collateral review.359 A further consideration was that eliminating review of Miranda claims would not significantly reduce federal habeas review of state convictions, because most Miranda claims could be recast in terms of due process denials resulting from admission of involuntary confessions.360

In any event, the Court has established several lines of decisions interpreting key aspects of Miranda.

First, Miranda warnings must be given prior to “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.”361 The cases have distilled “custody or other significant deprivation of action” into a two-part assessment under which restricting a person’s movement is a necessary but not sufficient element. Not all inhibitions of “free movement” trigger Miranda. Whether a person is “in custody” during questioning depends on the coercive pressure posed. The Court applies an objective, context-specific test of how intimidated a reasonable person in the suspect’s shoes would feel to freely exercise his right against self-incrimination. A police officer’s subjective and undisclosed view that a person being interrogated is a criminal suspect is not relevant for Miranda purposes, nor is the subjective view of the person being questioned.362 The only refinement to this one-size-fits-all reasonable person test is consideration of age if the detainee is a juvenile.363

An ordinary traffic stop does not to amount to Miranda “custody.”364 Nor do all interrogations of prison inmates about previous outside conduct, even if the inmate is isolated from the general prison population for questioning.365 This view on prison interrogations evidences the Court’s continuing movement toward individualized analyses of Miranda issues based on particular circumstances and away from the more categorical decisions announced soon after Miranda. Still, some of the early decisions may retain vitality. One example is the 1969 decision in Orozco v. Texas, which held that questioning a person upon his arrest in his home is custodial.366 On the other hand, the fact that a suspect may be present in a police station does not necessarily mean, in the absence of further restrictions, that questioning is custodial,367 and the fact that he is in his home or other familiar surroundings will ordinarily lead to a conclusion that the inquiry was noncustodial.368 Also, if a person has been subjected to Miranda custody, that custody ends when he is free to resume his normal life activities after questioning.369 Nevertheless, a break in custody may not end all Miranda implications for subsequent custodial interrogations.370

Second, Miranda warnings must precede custodial interrogation. It is not necessary under Miranda that the police squarely ask a question. The breadth of the interrogation concept is demonstrated in Rhode Island v. Innis.371 There, police had apprehended the defendant as a murder suspect but had not found the weapon used. While he was being transported to police headquarters in a squad car, the defendant, who had been given the Miranda warnings and had asserted he wished to consult a lawyer before submitting to questioning, was not asked questions by the officers. However, the officers engaged in conversation among themselves, in which they indicated that a school for handicapped children was near the crime scene and that they hoped the weapon was found before a child discovered it and was injured. The defendant then took them to the weapon’s hiding place.

Unanimously rejecting a contention that Miranda would have been violated only by express questioning, the Court said: “We conclude that the 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 those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police.”372 A divided Court then concluded that the officers’ conversation did not amount to a functional equivalent of questioning and that the evidence was admissible.373

A later divided Court applied Innis in Arizona v. Mauro374 to hold that a suspect who had requested an attorney was not “interrogated” by bringing instead the suspect’s wife, who also was a suspect, to speak with him in police presence. The majority emphasized that the suspect’s wife had asked to speak with her husband, the meeting was therefore not a police-initiated ruse designed to elicit a response from the suspect, and in any event the meeting could not be characterized as an attempt by the police to use the coercive nature of confinement to extract a confession that would not be given in an unrestricted environment. The dissent argued that the police had exploited the wife’s request to talk with her husband in a custodial setting to create a situation the police knew, or should reasonably have known, was reasonable likely to result in an incriminatory statement.

In Estelle v. Smith,375 the Court held that a court-ordered jailhouse interview by a psychiatrist seeking to determine the defendant’s competency to stand trial constituted “interrogation” with respect to testimony on issues guilt and punishment; the psychiatrist’s conclusions about the defendant’s dangerousness were inadmissible at the capital sentencing phase of the trial because the defendant had not been given his Miranda warnings prior to the interview. That the defendant had been questioned by a psychiatrist designated to conduct a neutral competency examination, rather than by a police officer, was “immaterial,” the Court concluded, since the psychiatrist’s testimony at the penalty phase changed his role from one of neutrality to that of an agent of the prosecution.376 Other instances of questioning in less formal contexts in which the issues of custody and interrogation intertwine, e.g., in on-the-street encounters, await explication by the Court.

Third, before a suspect in custody is interrogated, he must be given full warnings, or the equivalent, of his rights. Miranda, of course, required express warnings to be given to an in-custody suspect of his right to remain silent, that anything he said may be used as evidence against him, that he has a right to counsel, and that if he cannot afford counsel he is entitled to an appointed attorney.

377 The Court recognized that “other fully effective means” could be devised to convey the right to remain silent,378 but it was firm that the prosecution was not permitted to show that an unwarned suspect knew of his rights in some manner.379 Nevertheless, it is not necessary that the police give the warnings as a verbatim recital of the words in the Miranda opinion itself, so long as the words used “fully conveyed” to a defendant his rights.380

Fourth, once a warned suspect asserts his right to silence and requests counsel, the police must scrupulously respect his assertion of right. The Miranda Court strongly stated that once a warned suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Further, if the suspect indicates he wishes the assistance of counsel during interrogation, questioning must cease until he has counsel.381

That said, the Court has issued a distinct line of cases on the right to counsel that has created practically a per se rule barring the police from continuing or from reinitiating interrogation with a suspect requesting counsel until counsel is present, save only that the suspect himself may initiate further proceedings. In Edwards v. Arizona,382 initial questioning had ceased as soon as the suspect had requested counsel, and the suspect had been returned to his cell. Questioning had resumed the following day only after different police officers had confronted the suspect and again warned him of his rights; the suspect agreed to talk and thereafter incriminated himself. Nonetheless, the Court held, “when an accused has invoked his right to have counsel present during custodial interrogation, 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 this rights. We further hold that an accused . . . , 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 communication, exchanges, or conversations with the police.”383 The Edwards rule bars police-initiated questioning stemming from a separate investigation as well as questioning relating to the crime for which the suspect was arrested.384 It also applies to interrogation by officers of a different law enforcement authority.385

On the other hand, the Edwards rule requiring that a lawyer be provided to a suspect who had requested one in an earlier interrogation does not apply once there has been a meaningful break in custody. The Court in Maryland v. Shatzer386 characterized the Edwards rule as a judicially prescribed precaution against using the coercive pressure of prolonged custody to badger a suspect who has previously requested counsel into talking without one. However, after a suspect has been released to resume his normal routine for a sufficient period to dissipate the coercive effects of custody, a period set at 14 days by the Shatzer Court, the rationale for solicitous treatment ceases. If the suspect is thereafter put into custody again, the options for questioning no longer are limited to suspect-initiated talks or providing counsel, but rather the police may issue new Miranda warnings and proceed accordingly.387 Moreover, the Edwards rule has not been explicitly extended to other aspects of the Miranda warnings.388

Fifth, a properly warned suspect may waive his Miranda rights and submit to custodial interrogation. Miranda recognized that a suspect may voluntarily and knowingly give up his rights and respond to questioning, but the Court also cautioned that the prosecution bore a “heavy burden” to establish that a valid waiver had occurred.389 The Court continued: “[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.”390 Subsequent cases indicated that determining whether a suspect has waived his Miranda rights is a fact-specific inquiry not easily susceptible to per se rules. According to these cases, resolution of the issue of waiver “must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ”391 Under this line of cases, a waiver need not always be express, nor does Miranda impose a formalistic waiver procedure.392

In Berghuis v. Thompkins, citing the societal benefit of requiring an accused to invoke Miranda rights unambiguously, the Court refocused its Miranda waiver analysis to whether a suspect understood his rights.393 There, a suspect refused to sign a waiver form, remained largely silent during the ensuing 2-hour and 45-minute interrogation, but then made an incriminating statement. The five-Justice majority found that the suspect had failed to invoke his right to remain silent and also implicitly had waived the right. According to the Court, though a statement following silence alone may not be adequate to show a waiver, the prosecution may show an implied waiver by demonstrating that a suspect understood the Miranda warnings given him and subsequently made an uncoerced statement.394 Further, once a suspect has knowingly and voluntarily waived his Miranda rights, police officers may continue questioning until and unless the suspect clearly invokes them later.395

Sixth, the admissions of an unwarned or improperly warned suspect may not be used directly against him at trial, but the Court has permitted some use for other purposes, such as impeachment. A confession or other incriminating admissions obtained in violation of Miranda may not, of course, be introduced against him at trial for purposes of establishing guilt396 or for determining the sentence, at least in bifurcated trials in capital cases.397 On the other hand, the “fruits” of such an unwarned confession or admission may be used in some circumstances if the statement was voluntary.398

The Court, in opinions that bespeak a sense of necessity to narrowly construe Miranda, has broadened the permissible impeachment purposes for which unlawful confessions and admissions may be used.399 Thus, in Harris v. New York,400 the Court held that the prosecution could use statements, obtained in violation of Miranda, to impeach the defendant’s testimony if he voluntarily took the stand and denied commission of the offense. Subsequently, in Oregon v. Hass,401 the Court permitted impeachment use of a statement made by the defendant after police had ignored his request for counsel following his Miranda warning. Such impeachment material, however, must still meet the standard of voluntariness associated with the pre-Miranda tests for the admission of confessions and statements.402

The Court has created a “public safety” exception to the Miranda warning requirement, but has refused to create another exception for misdemeanors and lesser offenses. In New York v. Quarles,403 the Court held admissible a recently apprehended suspect’s response in a public supermarket to the arresting officer’s demand to know the location of a gun that the officer had reason to believe the suspect had just discarded or hidden in the supermarket. The Court, in an opinion by Justice Rehnquist,404 declined to place officers in the “untenable position” of having to make instant decisions as to whether to proceed with Miranda warnings and thereby increase the risk to themselves or to the public or whether to dispense with the warnings and run the risk that resulting evidence will be excluded at trial. While acknowledging that the exception itself will “lessen the desirable clarity of the rule,” the Court predicted that confusion would be slight: “[w]e think that police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.”405 No such compelling justification was offered for a Miranda exception for lesser offenses, however, and protecting the rule’s “simplicity and clarity” counseled against creating one.406 “[A] person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.”407

The Operation of the Exclusionary Rule

Supreme Court Review.

The Court’s review of the question of admissibility of confessions or other incriminating statements is designed to prevent the foreclosure of the very question to be decided by it, the issue of voluntariness under the due process standard, the issue of the giving of the requisite warnings and the subsequent waiver, if there is one, under the Miranda rule. Recurring to Justice Frankfurter’s description of the inquiry as a “three-phased process” in due process cases at least,408 it can be seen that the Court’s self-imposed rules of restraint on review of lower-court factfinding greatly influenced the process. The finding of facts surrounding the issue of coercion—the length of detention, circumstances of interrogation, use of violence or of tricks and ruses, et
cetera—is the proper function of the trial court which had the advantage of having the witnesses before it. “This means that all testimonial conflict is settled by the judgment of the state courts. Where they have made explicit findings of fact, those findings conclude us and form the basis of our review—with the one caveat, necessarily, that we are not to be bound by findings wholly lacking support in evidence.”409

However, the conclusions of the lower courts as to how the accused reacted to the circumstances of his interrogation, and as to the legal significance of how he reacted, are subject to open review. “No more restricted scope of review would suffice adequately to protect federal constitutional rights. For the mental state of involuntariness upon which the due process question turns can never be affirmatively established other than circumstantially—that is, by inference; and it cannot be competent to the trier of fact to preclude our review simply be declining to draw inferences which the historical facts compel. Great weight, of course, is to be accorded to the inferences which are drawn by the state courts. In a dubious case, it is appropriate . . . that the state court’s determination should control. But where, on the uncontested external happenings, coercive forces set in motion by state law enforcement officials are unmistakably in action; where these forces, under all the prevailing states of stress, are powerful enough to draw forth a confession; where, in fact, the confession does come forth and is claimed by the defendant to have been extorted from him; and where he has acted as a man would act who is subjected to such an extracting process— where this is all that appears in the record—a State judgment that the confession was voluntary cannot stand.”410 Miranda, of course, does away with the judgments about the effect of lack of warnings, and the third phase, the legal determination of the interaction of the first two phases, is determined solely by two factual determinations: whether the warnings were given and if so whether there was a valid waiver. Presumably, supported determinations of these two facts by trial courts would preclude independent review by the Supreme Court. Yet, the Court has been clear that it may and will independently review the facts when the factfinding has such a substantial effect on constitutional rights.411

In Withrow v. Williams,412 the Court held that the rule of Stone v. Powell,413 precluding federal habeas corpus review of a state prisoner’s claim that his conviction rests on evidence obtained through an unconstitutional search or seizure, does not extend to preclude federal habeas review of a state prisoner’s claim that his conviction rests on statements obtained in violation of the safeguards mandated by Miranda.

Procedure in the Trial Courts.

The Court has placed consti-tutional limitations upon the procedures followed by trial courts for determining the admissibility of confessions and other incriminating admissions. Three procedures were developed over time to deal with the question of admissibility when involuntariness was claimed. By the orthodox method, the trial judge heard all the evidence on voluntariness in a separate and preliminary hearing, and if he found the confession involuntary the jury never received it, while if he found it voluntary the jury received it with the right to consider its weight and credibility, which consideration included the circumstances of its making. By the New York method, the judge first reviewed the confession under a standard leading to its exclusion only if he found it not possible that “reasonable men could differ over the [factual] inferences to be drawn” from it; otherwise, the jury would receive the confession with instructions to first determine its voluntariness and to consider it if it were voluntary and to disregard it if it were not. By the Massachusetts method, the trial judge himself determined the voluntariness question and if he found the confession involuntary the jury never received it; if he found it to have been voluntarily made he permitted the jury to receive it with instructions that the jurors should make their own independent determination of voluntariness.414

The New York method was upheld against constitutional attack in Stein v. New York,415 but eleven years later a five-to-four decision in Jackson v. Denno,416 found it inadequate to protect the due process rights of defendants. The procedure did not, the Court held, ensure a “reliable determination on the issue of voluntariness” and did not sufficiently guarantee that convictions would not be grounded on involuntary confessions. Because there was only a general jury verdict of guilty, it was impossible to determine whether the jury had first focused on the issue of voluntariness and then either had found the confession voluntary and considered it on the question of guilt or had found it involuntary, disregarded it, and reached a conclusion of guilt on wholly independent evidence. It was doubtful that a jury could appreciate the values served by the exclusion of involuntary confessions and put out of mind the content of the confession no matter what was determined with regard to its voluntariness. The rule was reiterated in Sims v. Georgia,417 in which the Court voided a state practice permitting the judge to let the confession go to the jury for the ultimate decision on voluntariness, upon an initial determination merely that the prosecution had made out a prima facie case that the confession was voluntary. The Court has interposed no constitutional objection to use of either the orthodox or the Massachusetts method for determining admissibility.418 It has held that the prosecution bears the burden of establishing voluntariness by a preponderance of the evidence, rejecting a contention that it should be determined only upon proof beyond a reasonable doubt,419 or by clear and convincing evidence.420

Footnotes

184
Maguire, Attack of the Common Lawyers on the Oath Ex Officio as Administered in the Ecclesiastical Courts in England, in ESSAYS IN HISTORY AND POLITICAL THEORY IN HONOR OF CHARLES HOWARD MC ILWAIN 199 (C. Wittke ed., 1936). back
185
The traditional historical account is 8 J. WIGMORE, A TREATISE ON THE ANGLOAMERICAN SYSTEM OF EVIDENCE § 2250 (J. McNaughton rev. 1961), but more recent historical studies have indicated that Dean Wigmore was too grudging of the privilege. LEONARD LEVY, ORIGINS OF THE FIFTH AMENDMENT: THE RIGHT AGAINST SELF-INCRIMINATION (1968); Morgan, The Privilege Against Self-Incrimination, 34 MINN. L. REV. 1 (1949). back
186
3 F. Thorpe, The Federal and State Constitutions, reprinted in H. DOC. NO. 357, 59th Congress, 2d Sess. 1891 (1909) (Massachusetts); 4 id. at 2455 (New Hampshire); 5 id. at 2787 (North Carolina), 3038 (Pennsylvania); 6 id. at 3741 (Vermont); 7 id. at 3813 (Virginia). back
187
Amendments were recommended by an “Address” of a minority of the Pennsylvania convention after they had been voted down as a part of the ratification action, 2 BERNARD SCHWARTZ, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 628, 658, 664 (1971), and then the ratifying conventions of Massachusetts, South Carolina, New Hampshire, Virginia, and New York formally took this step. back
188
Id. at 753 (August 17, 1789). back
189
Discussing the privilege in one case, the Court stated: It reflects many of our fundamental values and most noble aspirations: our unwillingness to subject 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 realization that the privilege, while sometimes “a shelter to the guilty,” is often “a protection to the innocent.” Murphy v. Waterfront Comm’n, 378 U.S. 52, 55 (1964) (internal citations omitted). back
190
E.g., Ullmann v. United States, 350 U.S. 422, 426 (1956); Quinn v. United States, 349 U.S. 155, 162–63 (1955); Twining v. New Jersey, 211 U.S. 78, 91 (1908). back
191
In Tehan v. United States ex rel. Shott, the Court noted: [T]he basic purposes that lie behind the privilege against self-incrimination do not relate to protecting the innocent from conviction, but rather to preserving the integrity of a judicial system in which even the guilty are not to be convicted unless the prosecution “shoulder[s] the entire load.” . . . The basic purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial or to deny a full opportunity to appeal a conviction because the accused is poor is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent . . . By contrast, the Fifth Amendment’s privilege against self-incrimination is not an adjunct to the ascertainment of truth. That privilege, like the guarantees of the Fourth Amendment, stands as a protection of quite different constitutional values—values reflecting the concern of our society for the right of each individual to be let alone. Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 416 (1966); see also California v. Byers, 402 U.S. 424, 448–58 (1971) (Harlan, J., concurring); Schmerber v. California, 384 U.S. 757, 760–65 (1966); Miranda v. Arizona, 384 U.S. 436, 460 (1966). For a critical view of the privilege, see Henry Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L. REV. 671 (1968). back
192
Ullmann, 350 U.S. at 438–39. back
193
Hoffman v. United States, 341 U.S. 479, 486 (1951); see also Emspak v. United States, 349 U.S. 190 (1955); Blau v. United States, 340 U.S. 332 (1951); Blau v. United States, 340 U.S. 159 (1950). back
194
E.g., Mason v. United States, 244 U.S. 362 (1917). back
195
The primary exceptions are for a criminal defendant not taking the stand and a suspect being subject to inherently coercive circumstances (e.g., custodial interrogation). See Salinas v. Texas, 570 U.S. ___, No. 12–246, slip op. at 4–6 (2013) (plurality opinion). back
196
In Salinas v. Texas, 570 U.S. ___, No. 12–246, slip op. (2013), the defendant— Salinas—answered all questions during noncustodial questioning about a double murder, other than one about whether his shotgun would match shells recovered at the murder scene. He fell silent on this inquiry, but did not assert the privilege against self-incrimination. At closing argument at Salinas’s murder trial, the prosecutor argued that this silence indicated guilt, and a majority of the Court found the comments constitutionally permissible. The Court affirmed the Texas Supreme Court’s ruling that Salinas had failed to invoke his Fifth Amendment rights because he did not do so explicitly. Although no opinion drew a majority of Justices, in an opinion joined by Chief Justice Roberts and Justice Kennedy, Justice Alito observed that a defendant could choose to remain silent for numerous reasons other than avoiding self-incrimination. Id. at 9 (plurality opinion). back
197
Rogers v. United States, 340 U.S. 367 (1951); United States v. Monia, 317 U.S. 424 (1943). The “waiver” concept here has been pronounced “analytically [un-
]sound,” with the Court preferring to reserve the term “waiver” “for the process by which one affirmatively renounces the protection of the privilege.” Garner v. United States, 424 U.S. 648, 654 n.9 (1976). Thus, the Court has settled upon the concept of “compulsion” as applied to “cases where disclosures are required in the face of claim of privilege.” Id. “[I]n the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not ‘compelled’ him to incriminate himself.” Id. at 654. Similarly, the Court has enunciated the concept of “voluntariness” to be applied in situations where it is claimed that a particular factor denied the individual a “free choice to admit, to deny, or to refuse to answer.” Id. at 654 n.9, 656–65. [I]f the witness, upon interposing his claim, were required to prove the hazard . . . he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.
back
198
Ohio v. Reiner, 532 U.S. 17 (2001). back
199
Hoffman v. United States, 341 U.S. 479, 488 (1951) (quoting Temple v. Commonwealth, 75 Va. 892, 898 (1881)). For an application of these principles, see Malloy v. Hogan, 378 U.S. 1, 11–14 (1964), and id. at 33 (White, Stewart JJ., dissenting). Where the government is seeking to enforce an essentially noncriminal statutory scheme through compulsory disclosure, some Justices would apparently relax the Hoffman principles. Cf. California v. Byers, 402 U.S. 424 (1971) (plurality opinion). back
201
United States v. White, 322 U.S. 694, 701 (1944); Baltimore & Ohio R.R. v. ICC, 221 U.S. 612 (1911); Hale v. Henkel, 201 U.S. 43, 69–70, 74–75 (1906). back
202
United States v. White, 322 U.S. 694, 699–700 (1944); Wilson v. United States, 221 U.S. 361, 384–385 (1911). But the government may make no evidentiary use of the act of production in proceeding individually against the corporate custodian. Braswell v. United States, 487 U.S. 99 (1988). Cf. George Campbell Painting Corp. v. Reid, 392 U.S. 286 (1968); United States v. Rylander, 460 U.S. 752 (1983) (witness who had failed to appeal production order and thus had burden in contempt proceeding to show inability to then produce records could not rely on privilege to shift this evidentiary burden). back
203
Thus, not only may a defendant or a witness in a criminal trial, including a juvenile proceeding, In re Gault, 387 U.S. 1, 42–57 (1967), claim the privilege but so may a party or a witness in a civil court proceeding, McCarthy v. Arndstein, 266 U.S. 34 (1924), a potential defendant or any other witness before a grand jury, Reina v. United States, 364 U.S. 507 (1960); Counselman v. Hitchcock, 142 U.S. 547, 563 (1892), or a witness before a legislative inquiry, Watkins v. United States, 354 U.S. 178, 195–96 (1957); Quinn v. United States, 349 U.S. 155 (1955); Emspak v. United States, 349 U.S. 190 (1955), or before an administrative body. In re Groban, 352 U.S. 330, 333, 336–37, 345–46 (1957); ICC v. Brimson, 154 U.S. 447, 478–80 (1894). back
204
Estelle v. Smith, 451 U.S. 454, 462–63 (1981) (“We can discern no basis to distinguish between the guilt and penalty phases of respondent’s capital murder trial so far as the protection of the Fifth Amendment privilege is concerned”); Mitchell v. United States, 526 U.S. 314 (1999) (non-capital sentencing). back
205
Allen v. Illinois, 478 U.S. 364 (1986) (declaration that person is “sexually dangerous” under Illinois law is not a criminal proceeding); Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984) (revocation of probation is not a criminal proceeding, hence “there can be no valid claim of the privilege on the ground that the information sought can be used in revocation proceedings”). In Murphy, the Court went on to explain that “a State may validly insist on answers to even incriminating questions and hence sensibly administer its probation system, as long as it recognizes that the required answers may not be used in a criminal proceeding and thus eliminates the threat of incrimination. Under such circumstances, a probationer’s ‘right to immunity as a result of his compelled testimony would not be at stake,’ and nothing in the Federal Constitution would prevent a State from revoking probation for a refusal to answer . . . .” Id. (citations omitted). back
206
Chavez v. Martinez, 538 U.S. 760 (2003) (rejecting damages claim brought by suspect interrogated in hospital but not prosecuted). back
207
Miranda v. Arizona, 384 U.S. 436 (1966). back
208
Schmerber v. California, 384 U.S. 757, 764 (1966); United States v. Wade, 388 U.S. 218, 221–23 (1967); Holt v. United States, 218 U.S. 245, 252 (1910). In California v. Byers, 402 U.S. 424 (1971), four Justices believed that requiring any person involved in a traffic accident to stop and give his name and address did not involve testimonial compulsion and therefore the privilege was inapplicable, id. at 431–34 (Chief Justice Burger and Justices Stewart, White, and Blackmun), but Justice Harlan, id. at 434 (concurring), and Justices Black, Douglas, Brennan, and Marshall, id. at 459, 464 (dissenting), disagreed. In South Dakota v. Neville, 459 U.S. 553 (1983), the Court indicated as well that a state may compel a motorist suspected of drunk driving to submit to a blood alcohol test, and may also give the suspect a choice about whether to submit, but use his refusal to submit to the test as evidence against him. The Court rested its evidentiary ruling on the absence of coercion, preferring not to apply the sometimes difficult distinction between testimonial and physical evidence. In another case, involving roadside videotaping of a drunk driving suspect, the Court found that the slurred nature of the suspect’s speech, as well as his answers to routine booking questions as to name, address, weight, height, eye color, date of birth, and current age, were not testimonial in nature. Pennsylvania v. Muniz, 496 U.S. 582 (1990). On the other hand, the suspect’s answer to a request to identify the date of his sixth birthday was considered testimonial. Id. Two Justices challenged the interpretation limiting application to “testimonial” disclosures, claiming that the original understanding of the word “witness” was not limited to someone who gives testimony, but included someone who gives any kind of evidence. United States v. Hubbell, 530 U.S. 27, 49 (2000) (Justice Thomas, joined by Justice Scalia, concurring). back
209
Fisher v. United States, 425 U.S. 391 (1976). Compelling a taxpayer by subpoena to produce documents produced by his accountants from his own papers does not involve testimonial self-incrimination and is not barred by the privilege. “[T]he Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating.” Id. at 408 (emphasis by Court). Even further removed from the protection of the privilege is seizure pursuant to a search warrant of business records in the handwriting of the defendant. Andresen v. Maryland, 427 U.S. 463 (1976). A court order compelling a target of a grand jury investigation to sign a consent directive authorizing foreign banks to disclose records of any and all accounts over which he had a right of withdrawal is not testimonial in nature, since the factual assertions are required of the banks and not of the target. Doe v. United States, 487 U.S. 201 (1988). back
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In United States v. Doe, 465 U.S. 605 (1984), the Court distinguished Fisher, upholding lower courts’ findings that the act of producing tax records implicates the privilege because it would compel admission that the records exist, that they were in the taxpayer’s possession, and that they are authentic. Similarly, a juvenile court’s order to produce a child implicates the privilege, because the act of compliance “would amount to testimony regarding [the subject’s] control over and possession of [the child].” Baltimore Dep’t of Social Services v. Bouknight, 493 U.S. 549, 555 (1990). back
211
United States v. Hubbell, 530 U.S. 27 (2000). back
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E.g., Marchetti v. United States, 390 U.S. 39 (1968) (criminal penalties attached to failure to register and make incriminating admissions); Malloy v. Hogan, 378 U.S. 1 (1964) (contempt citation on refusal to testify). See also South Dakota v. Neville, 459 U.S. 553 (1983) (no compulsion in introducing evidence of suspect’s refusal to submit to blood alcohol test, since state could have forced suspect to take test and need not have offered him a choice); Selective Service System v. Minnesota PIRG, 468 U.S. 841 (1984) (no coercion in requirement that applicants for federal financial assistance for higher education reveal whether they have registered for draft). back
213
Garrity v. New Jersey, 385 U.S. 493 (1967); Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968). See also Lefkowitz v. Turley, 414 U.S. 70 (1973), holding unconstitutional state statutes requiring the disqualification for five years of contractors doing business with the state if at any time they refused to waive immunity and answer questions respecting their transactions with the state. The state may require employees or contractors to respond to inquiries, but only if it offers them immunity sufficient to supplant the privilege against self-incrimination. See also Lefkowitz v. Cunningham, 431 U.S. 801 (1977). back
214
Spevack v. Klein, 385 U.S. 511 (1967). back
215
McKune v. Lile, 536 U.S. 24 (2002). The transfer was mandated for refusal to participate in a sexual abuse treatment program that required revelation of sexual history and admission of responsibility. The plurality declared that rehabilitation programs are permissible if the adverse consequences for non-participation are “related to the program objectives and do not constitute atypical and significant hardships in relation to the ordinary incidents of prison life.” 536 U.S. at 38 (opinion of Justice Kennedy). Concurring Justice O’Connor stated her belief that the “minor” change in living conditions seemed “very unlikely to actually compel [the prisoner] to [participate].” Id. at 51. back
216
See, in addition to McKune v. Lile, Baxter v. Palmigiano, 425 U.S. 308 (1976) (adverse inference from inmate’s silence at prison disciplinary hearing); and Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) (adverse inference from inmate’s silence at clemency hearing). back
217
Minnesota v. Murphy, 465 U.S. 420 (1984) (the possibility of revocation of probation was not so coercive as to compel a probationer to provide incriminating answers to probation officer’s questions). back
218
The Court in McKune v. Lile split 5-to-4, with no opinion of the Court. back
219
Brown v. Walker, 161 U.S. 591, 597–98 (1896); Fitzpatrick v. United States, 178 U.S. 304, 314–16 (1900); Brown v. United States, 356 U.S. 148 (1958). See also Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 286 (1998) (testimony at a clemency interview is voluntary, and cannot be compelled). back
220
Spencer v. Texas, 385 U.S. 554, 561 (1967); cf. Michelson v. United States, 335 U.S. 469 (1948). back
221
380 U.S. 609, 614 (1965). The result had been achieved in federal court through statutory enactment. 18 U.S.C. § 3481. See Wilson v. United States, 149 U.S. 60 (1893). In Carter v. Kentucky, 450 U.S. 288 (1981), the Court held that the Self-Incrimination Clause required a state, upon defendant’s request, to give a cautionary instruction to the jurors that they must disregard defendant’s failure to testify and not draw any adverse inferences from it. This result, too, had been accomplished in the federal courts through statutory construction. Bruno v. United States, 308 U.S. 287 (1939). In Lakeside v. Oregon, 435 U.S. 333 (1978), the Court held that a court may give such an instruction, even over defendant’s objection. Carter v. Kentucky was applied in James v. Kentucky, 466 U.S. 341 (1983) (request for jury “admonition” sufficient to invoke right to “instruction”). back
222
Although the Griffin rule continues to apply when the prosecutor on his own initiative asks the jury to draw an adverse inference from a defendant’s silence, it does not apply to a prosecutor’s “fair response” to a defense counsel’s allegation that the government had denied his client the opportunity to explain his actions. United States v. Robinson, 485 U.S. 25, 32 (1988). back
223
Chapman v. California, 386 U.S. 18 (1967); United States v. Hasting, 461 U.S. 499 (1983). back
224
Doyle v. Ohio, 426 U.S. 610 (1976). Post-arrest silence, the Court stated, is inherently ambiguous, and to permit use of the silence would be unfair since the Miranda warning told the defendant he could be silent. The same result had earlier been achieved under the Court’s supervisory power over federal trials in United States v. Hale, 422 U.S. 171 (1975). The same principles apply to bar a prosecutor’s use of Miranda silence as evidence of an arrestee’s sanity. Wainwright v. Greenfield, 474 U.S. 284 (1986). In determining whether a state prisoner is entitled to federal habeas corpus relief because the prosecution violated due process by using his post-
Miranda silence for impeachment purposes at trial, the proper standard for harmless-error review is that announced in Kotteakos v. United States, 328 U.S. 750, 776 (1946)—whether the due process error had substantial and injurious effect or influence in determining the jury’s verdict—not the stricter “harmless beyond a reasonable doubt” standard of Chapman v. California, 386 U.S. 18, 24 (1967), applicable on direct review. Brecht v. Abrahamson, 507 U.S. 619 (1993). See also Fry v. Pliler, 551 U.S. 112, 114 (2007) (the “substantial and injurious effect” standard is to be applied in federal habeas proceedings even “when the state appellate court failed to recognize the error and did not review it for harmlessness under the ‘harmless beyond a reasonable doubt’ standard set forth in Chapman v. California”).
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225
Jenkins v. Anderson, 447 U.S. 231 (1980). Cf. Baxter v. Palmigiano, 425 U.S. 308 (1976) (prison disciplinary hearing may draw adverse inferences from inmate’s assertion of privilege so long as this was not the sole basis of decision against him). back
226
Simmons v. United States, 390 U.S. 377 (1968). The rationale of the case was subsequently limited to Fourth Amendment grounds in McGautha v. California, 402 U.S. 183, 210–13 (1971). back
227
Harrison v. United States, 392 U.S. 219 (1968). back
228
Jackson v. United States, 390 U.S. 570, 583 (1968). back
229
Parker v. North Carolina, 397 U.S. 790 (1970); Brady v. United States, 397 U.S. 742 (1970); McMann v. Richardson, 397 U.S. 759 (1970). Parker and Brady entered guilty pleas to avoid the death penalty when it became clear that the prosecution had solid evidence of their guilt; Richardson pled guilty because of his fear that an allegedly coerced confession would be introduced into evidence. back
230
McGautha v. California, 402 U.S. 183, 210–20 (1971). When the Court subsequently required bifurcated trials in capital cases, it was on the basis of the Eighth Amendment, and represented no withdrawal from the position described here. Cf. Corbitt v. New Jersey, 439 U.S. 212 (1978); Bordenkircher v. Hayes, 434 U.S. 357 (1978). back
231
Williams v. Florida, 399 U.S. 78, 80–86 (1970). The compulsion of choice, Justice White argued for the Court, proceeded from the strength of the state’s case and not from the disclosure requirement. That is, the rule did not affect whether or not the defendant chose to make an alibi defense and to call witnesses, but merely required him to accelerate the timing. It appears, however, that in Brooks v. Tennessee, 406 U.S. 605 (1972), the Court used the “needless encouragement” test in striking down a state rule requiring the defendant to testify before any other defense witness or to forfeit the right to testify at all. In the Court’s view, this impermissibly burdened the defendant’s choice whether to testify or not. Another prosecution discovery effort was approved in United States v. Nobles, 422 U.S. 233 (1975), in which a defense investigator’s notes of interviews with prosecution witnesses were ordered disclosed to the prosecutor for use in cross-examination of the investigator. The Court discerned no compulsion upon defendant to incriminate himself. back
232
“The same situation might present itself if there were no statutory presumption and a prima facie case of concealment with knowledge of unlawful importation were made by the evidence. The necessity of an explanation by the accused would be quite as compelling in that case as in this; but the constraint upon him to give testimony would arise there, as it arises here, simply from the force of circumstances and not from any form of compulsion forbidden by the Constitution.” Yee Hem v. United States, 268 U.S. 178, 185 (1925), quoted with approval in Turner v. United States, 396 U.S. 398, 418 n.35 (1970). Justices Black and Douglas dissented on self-incrimination grounds. Id. at 425. See also United States v. Gainey, 380 U.S. 63, 71, 74 (1965) (dissenting opinions). For due process limitations on such presumptions, see discussion under the Fourteenth Amendment, “Proof, Burden of Proof, and Presumptions,” infra. back
233
Prosecution may be precluded by tender of immunity (see next topic for discussion of immunity), or by pardon, Brown v. Walker, 161 U.S. 591, 598–99 (1896). The effect of a mere tender of pardon by the President remains uncertain. Cf. Burdick v. United States, 236 U.S. 79 (1915) (acceptance necessary, and self-incrimination is possible in absence of acceptance); Biddle v. Perovich, 274 U.S. 480 (1927) (acceptance not necessary to validate commutation of death sentence to life imprisonment). back
234
Brown v. Walker, 161 U.S. 591, 605–06 (1896); Ullmann v. United States, 350 U.S. 422, 430–31 (1956). Minorities in both cases had contended for a broader rule. Walker, 161 U.S. at 631 (Justice Field dissenting); Ullmann, 350 U.S. at 454 (Justice Douglas dissenting). back
235
Gardner v. Broderick, 392 U.S. 273, 278 (1968). Testimony compelled under such circumstances is, even in the absence of statutory immunity, barred from use in a subsequent criminal trial by force of the Fifth Amendment itself. Garrity v. New Jersey, 385 U.S. 493 (1967). However, unlike public employees, persons subject to professional licensing by government appear to be able to assert their privilege and retain their licenses. Cf. Spevack v. Klein, 385 U.S. 511 (1967) (lawyer may not be disbarred solely because he refused on self-incrimination grounds to testify at a disciplinary proceeding), approved in Gardner v. Broderick, 392 U.S. at 277–78. Justices Harlan, Clark, Stewart, and White dissented generally. 385 U.S. 500, 520, 530. back
236
See Slochower v. Board of Higher Education, 350 U.S. 551 (1956), limited by Lerner v. Casey, 357 U.S. 468 (1958), and Nelson v. County of Los Angeles, 362 U.S. 1 (1960), which were in turn apparently limited by Garrity and Gardner. back
237
Malloy v. Hogan, 378 U.S. 1 (1964) (overruling Twining v. New Jersey, 211 U.S. 78 (1908), and Adamson v. California, 332 U.S. 46 (1947)). back
238
Murphy v. Waterfront Comm’n, 378 U.S. 52 (1964), (overruling United States v. Murdock, 284 U.S. 141 (1931) (Federal Government could compel a witness to give testimony that might incriminate him under state law), Knapp v. Schweitzer, 357 U.S. 371 (1958) (state may compel a witness to give testimony that might incriminate him under federal law), and Feldman v. United States, 322 U.S. 487 (1944) (testimony compelled by a state may be introduced into evidence in the federal courts)). Murphy held that a state could compel testimony under a grant of immunity but that, because the state could not extend the immunity to federal courts, the Supreme Court would not permit the introduction of evidence into federal courts that had been compelled by a state or that had been discovered because of state compelled testimony. The result was apparently a constitutionally compelled one arising from the Fifth Amendment itself, 378 U.S. at 75–80, rather than one taken pursuant to the Court’s supervisory power as Justice Harlan would have preferred. Id. at 80 (concurring). Congress has power to confer immunity in state courts as well as in federal in order to elicit information, Adams v. Maryland, 347 U.S. 179 (1954), but whether Congress must do so or whether the immunity would be conferred simply through the act of compelling the testimony Murphy did not say. Whether testimony could be compelled by either the Federal Government or a state that could incriminate a witness in a foreign jurisdiction is unsettled. See Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472, 480, 481 (1972) (reserving question), but an affirmative answer seems unlikely. Cf. Murphy, 378 U.S. at 58–63, 77. back
239
United States v. Balsys, 524 U.S. 666 (1998). back
240
Kastigar v. United States, 406 U.S. 441, 445–46 (1972). It has been held that the Fifth Amendment itself precludes the use as criminal evidence of compelled admissions, Garrity v. New Jersey, 385 U.S. 493 (1967), but this case and dicta in others is unreconciled with the cases that find that one may “waive” though inadvertently the privilege and be required to testify and incriminate oneself. Rogers v. United States, 340 U.S. 367 (1951). back
241
9 Anne, c. 14, 3–4 (1710). See Kastigar v. United States, 406 U.S. 441, 445 n.13 (1972). back
242
Ch. 19, 11 Stat. 155 (1857). There was an exception for perjury committed while testifying before Congress. back
243
Ch. 11, 12 Stat. 333 (1862). back
244
142 U.S. 547 (1892). The statute struck down was ch. 13, 15 Stat. 37 (1868). back
245
Counselman v. Hitchcock, 142 U.S. 547, 564 (1892). See also id. at 586. back
246
142 U.S. at 585–86. back
247
“Transactional” immunity means that once a witness has been compelled to testify about an offense, he may never be prosecuted for that offense, no matter how much independent evidence might come to light; “use” immunity means that no testimony compelled to be given and no evidence derived from or obtained because of the compelled testimony may be used if the person is subsequently prosecuted on independent evidence for the offense. back
248
Ch. 83, 27 Stat. 443 (1893). back
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Brown v. Walker, 161 U.S. 591 (1896). The majority reasoned that one was excused from testifying only if there could be legal detriment flowing from his act of testifying. If a statute of limitations had run or if a pardon had been issued with regard to a particular offense, a witness could not claim the privilege and refuse to testify, no matter how much other detriment, such as loss of reputation, would attach to his admissions. Therefore, because the statute acted as a pardon or amnesty and relieved the witness of all legal detriment, he must testify. The four dissenters contended essentially that the privilege protected against being compelled to incriminate oneself regardless of any subsequent prosecutorial effort, id. at 610, and that a witness was protected against infamy and disparagement as much as prosecution. Id. at 628. back
250
Ullmann v. United States, 350 U.S. 422, 438 (1956) (quoting Shapiro v. United States, 335 U.S. 1, 6 (1948)). back
251
“[The] sole concern [of the privilege] is . . . with the danger to a witness forced to give testimony leading to the infliction of ‘penalties affixed to the criminal acts’. . . . Immunity displaces the danger. Once the reason for the privilege ceases, the privilege ceases.” 350 U.S. at 438–39. The internal quotation is from Boyd v. United States, 116 U.S. 616, 634 (1886). back
252
Kastigar v. United States, 406 U.S. 441, 457–58 (1972); Piccirillo v. New York, 400 U.S. 548, 571 (1971) (Justice Brennan dissenting). The exception was an immunity provision of the bankruptcy laws, 30 Stat. 548 (1898), 11 U.S.C. § 25(a)(10), repealed by 84 Stat. 931 (1970). The right of a bankrupt to insist on his privilege against self-incrimination as against this statute was recognized in McCarthy v. Arndstein, 266 U.S. 34, 42 (1924), “because the present statute fails to afford complete immunity from a prosecution.” The statute also failed to prohibit the use of derivative evidence. Arndstein v. McCarthy, 254 U.S. 71 (1920). back
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E.g., Hale v. Henkel, 201 U.S. 43, 67 (1906); United States v. Monia, 317 U.S. 424, 425, 428 (1943); Smith v. United States, 337 U.S. 137, 141, 146 (1949); United States v. Murdock, 284 U.S. 141, 149 (1931); Adams v. Maryland, 347 U.S. 179, 182 (1954). In Ullmann v. United States, 350 U.S. 422, 436–37 (1956), Justice Frankfurter described the holding of Counselman as relating to the absence of a prohibition on the use of derivative evidence. back
254
Malloy v. Hogan, 378 U.S. 1 (1964), extended the clause to the states. That Congress could immunize a federal witness from state prosecution and, of course, extend use immunity to state courts, was held in Adams v. Maryland, 347 U.S. 179 (1954), and had been recognized in Brown v. Walker, 161 U.S. 591 (1896). back
255
Murphy v. Waterfront Comm’n, 378 U.S. 52, 77–99 (1964). Concurring, Justices White and Stewart argued at length in support of the constitutional sufficiency of use immunity and the lack of a constitutional requirement of transactional immunity. Id. at 92. See also Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation Men Ass’n v. Commissioner of Sanitation, 392 U.S. 280 (1968); Garrity v. New Jersey, 385 U.S. 493 (1967), recognizing the propriety of compelling testimony with a use restriction attached. back
256
Marchetti v. United States, 390 U.S. 39, 58 (1968). back
257
Organized Crime Control Act of 1970, Pub. L. 91–452, § 201(a), 84 Stat. 922, 18 U.S.C. §§ 60026003. Justice Department officials have the authority under the Act to decide whether to seek immunity, and courts will not apply “constructive” use immunity absent compliance with the statute’s procedures. United States v. Doe, 465 U.S. 605 (1984). back
258
406 U.S. 441 (1972). A similar state statute was sustained in Zicarelli v. New Jersey State Comm’n of Investigation, 406 U.S. 472 (1972). back
259
Kastigar v. United States, 406 U.S. 441, 459 (1972). See also United States v. Hubbell, 530 U.S. 27 (2000) (because the statute protects against derivative use of compelled testimony, a prosecution cannot be based on incriminating evidence revealed only as the result of compliance with an extremely broad subpoena). back
260
406 U.S. at 453. Joining Justice Powell in the opinion were Justices Stewart, White, and Blackmun, and Chief Justice Burger. Justices Douglas and Marshall dissented, contending that a ban on use could not be enforced even if a use ban was constitutionally adequate. Id. at 462, 467. Justices Brennan and Rehnquist did not participate but Justice Brennan’s views that transactional immunity was required had been previously stated. Piccirillo v. New York, 400 U.S. 548, 552 (1971) (dissenting). See also New Jersey v. Portash, 440 U.S. 451 (1979) (prosecution use of defendant’s immunized testimony to impeach him at trial violates Self-Incrimination Clause). Neither the clause nor the statute prevents the perjury prosecution of an immunized witness or the use of all his testimony to prove the commission of perjury. United States v. Apfelbaum, 445 U.S. 115 (1980). See also United States v. Wong, 431 U.S. 174 (1977); United States v. Mandujano, 425 U.S. 564 (1976). Because use immunity is limited, a witness granted use immunity for grand jury testimony may validly invoke his Fifth Amendment privilege in a civil deposition proceeding when asked whether he had “so testified” previously, the deposition testimony not being covered by the earlier immunity. Pillsbury Co. v. Conboy, 459 U.S. 248 (1983). back
261
Boyd v. United States, 116 U.S. 616 (1886). But see Fisher v. United States, 425 U.S. 391 (1976). back
262
See discussion, supra, under “Development and Scope.” back
263
Shapiro v. United States, 335 U.S. 1, 33 (1948) (quoting Davis v. United States, 328 U.S. 582, 589–90 (1946), which quoted Wilson v. United States, 221 U.S. 361, 380 (1911)). Dicta in Wilson is the source of the required-records doctrine, the holding of the case being the familiar one that a corporate officer cannot claim the privilege against self-incrimination to refuse to surrender corporate records in his custody. Cf. Heike v. United States, 227 U.S. 131 (1913). Davis was a search and seizure case and dealt with gasoline ration coupons which were government property even though in private possession. See Shapiro, 335 U.S. at 36, 56–70 (Justice Frankfurter dissenting). back
264
335 U.S. at 51. back
265
335 U.S. at 32. back
266
335 U.S. at 32. back
267
274 U.S. 259, 263, 264 (1927). Sullivan was reaffirmed in Garner v. United States, 424 U.S. 648 (1976), holding that a taxpayer’s privilege against self-incrimination was not violated when he failed to claim his privilege on his tax returns, and instead gave incriminating information leading to conviction. One must assert one’s privilege to alert the government to the possibility that it is seeking to obtain incriminating material. It is not coercion forbidden by the clause that upon a claim of the privilege the government could seek an indictment for failure to file, since a valid claim of privilege cannot be the basis of a conviction. The taxpayer was not entitled to a judicial ruling on the validity of his claim and an opportunity to reconsider if the ruling went against him, regardless of whether a good-faith erroneous assertion of the privilege could subject him to prosecution, a question not resolved. back
268
274 U.S. at 263–64. back
269
274 U.S. at 263. back
270
The expansion of the commerce power would now obviate reliance on the taxing power. back
271
United States v. Kahriger, 345 U.S. 22 (1953); Lewis v. United States, 348 U.S. 419 (1955). back
272
382 U.S. 70 (1965). back
273
382 U.S. at 79. The decision was unanimous, with Justice White not participating. The same issue had been held not ripe for adjudication in Communist Party v. SACB, 367 U.S. 1, 105–10 (1961). back
274
Marchetti v. United States, 390 U.S. 39 (1968) (occupational tax); Grosso v. United States, 390 U.S. 62 (1968) (wagering excise tax). In Haynes v. United States, 390 U.S. 85 (1968), the Court struck down a requirement that one register a firearm that it was illegal to possess. The following Term on the same grounds the Court voided a statute prohibiting the possession of marijuana without having paid a transfer tax and registering. Leary v. United States, 395 U.S. 6 (1969); United States v. Covington, 395 U.S. 57 (1969). However, a statute was upheld which prohibited the sale of narcotics to a person who did not have a written order on a prescribed form, since the requirement caused the self-incrimination of the buyer but not the seller, the Court viewing the statute as actually a flat proscription on sale rather than a regulatory measure. Minor v. United States, 396 U.S. 87 (1969). The congressional response was reenactment of the requirements, coupled with use immunity. United States v. Freed, 401 U.S. 601 (1971). back
275
Marchetti v. United States, 390 U.S. 39, 48 (1968). back
276
“Every element of these requirements would have served to incriminate petitioners; to have required him to present his claim to Treasury officers would have obliged him ‘to prove guilt to avoid admitting it.’ ” 390 U.S. at 50. back
277
“The question is not whether petitioner holds a ‘right’ to violate state law, but whether, having done so, he may be compelled to give evidence against himself. The constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted; if such an inference of antecedent choice were alone enough to abrogate the privilege’s protection, it would be excluded from the situations in which it has historically been guaranteed, and withheld from those who most require it.” 390 U.S. at 51. But cf. California v. Byers, 402 U.S. 424, 434 (1971) (plurality opinion), in which it is suggested that because there is no “right” to leave the scene of an accident a requirement that a person involved in an accident stop and identify himself does not violate the Self-Incrimination Clause. back
278
Marchetti v. United States, 390 U.S. 39, 52–54 (1968). “The central standard for the privilege’s application has been whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination . . . . This principle does not permit the rigid chronological distinctions adopted in Kahriger and Lewis. We see no reason to suppose that the force of the constitutional prohibition is diminished merely because confession of a guilty purpose precedes the act which it is subsequently employed to evidence.” Id. at 53–54. Cf. United States v. Freed, 401 U.S. 601, 605–07 (1971). back
279
Marchetti v. United States, 390 U.S. 39, 57 (1968). back
280
402 U.S. 424 (1971). back
281
402 U.S. at 427–31 (Chief Justice Burger and Justices Stewart, White, and Blackmun). back
282
“The California Supreme Court was surely correct in considering that the decisions of this Court have made it clear that invocation of the privilege is not limited to situations where the purpose of the inquiry is to get an incriminating answer. . . . [I]t must be recognized that a reading of our more recent cases . . . suggests the conclusion that the applicability of the privilege depends exclusively on a determination that, from the individual’s point of view, there are ‘real’ and not ‘imaginary’ risks of self-incrimination in yielding to state compulsion. Thus, Marchetti and Grosso . . . start from an assumption of a non-prosecutorial governmental purpose in the decision to tax gambling revenue; those cases go on to apply what in another context I have called the ‘real danger v. imaginary possibility standard’ . . . . A judicial tribunal whose position with respect to the elaboration of constitutional doctrine is subordinate to that of this Court certainly cannot be faulted for reading these opinions as indicating that the ‘inherently-suspect-class’ factor is relevant only as an indicium of genuine incriminating risk as assessed from the individual’s point of view.” 402 U.S. at 437–38. back
283
402 U.S. at 448–58. The four dissenters argued that it was unquestionable that Byers would have faced real risks of self-incrimination by compliance with the statute and that this risk was sufficient to invoke the privilege. Id. at 459, 464 (Justices Black, Douglas, Brennan, and Marshall). back
284
493 U.S. 549 (1990). back
285
493 U.S. at 561. By the same token, the Court concluded that the targeted group—persons who care for children pursuant to a juvenile court’s custody order—is not a group “inherently suspect of criminal activities” in the Albertson-Marchetti sense. back
286
3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 823 (3d ed. 1940); Developments in the Law—Confessions, 79 HARV. L. REV. 935, 954–59 (1966). back
287
Hopt v. Utah, 110 U.S. 574, 584–85 (1884). Utah at this time was a territory and subject to direct federal judicial supervision. back
288
Pierce v. United States, 160 U.S. 335 (1896); Sparf and Hansen v. United States, 156 U.S. 51 (1895). In Wilson v. United States, 162 U.S. 613 (1896), failure to provide counsel or to warn the suspect of his right to remain silent was held to have no effect on the admissibility of a confession but was only to be considered in assessing its credibility. back
289
Bram v. United States, 168 U.S. 532, 542 (1897). back
290
Ziang Sun Wan v. United States, 266 U.S. 1, 14–15 (1924). This case first held that the circumstances of detention and interrogation were relevant and perhaps controlling on the question of admissibility of a confession. back
291
Burdeau v. McDowell, 256 U.S. 465, 475 (1921); Powers v. United States, 223 U.S. 303, 313 (1912); Shotwell Mfg. Co. v. United States, 371 U.S. 342, 347 (1963). back
292
Powers v. United States, 223 U.S. 303 (1912). back
293
United States v. Carignan, 342 U.S. 36, 41 (1951). See also McNabb v. United States, 318 U.S. 332, 346 (1943); Brown v. Mississippi, 297 U.S. 278, 285 (1936); Stein v. New York, 346 U.S. 156, 191 n.35 (1953). back
294
Miranda v. Arizona, 384 U.S. 436 (1966). According to Wigmore, “there never was any historical connection . . . between the constitutional [self-incrimination] clause and the [common law] confession-doctrine,” 3 J. WIGMORE, A TREATISE ON THE ANGLOAMERICAN SYSTEM OF EVIDENCE § 823, at 250 n.5 (3d ed. 1940); see also vol. 8 id. at § 2266 (McNaughton rev. 1961). It appears that while the two rules did develop separately—the bar against self-incrimination deriving primarily from notions of liberty and fairness, proscriptions against involuntary confessions deriving primarily from notions of reliability—they did stem from some of the same considerations, and, in fact, the confession rule may be considered in important respects to be an off-shoot of the privilege against self-incrimination. See L. LEVY, ORIGINS OF THE FIFTH AMENDMENT: THE RIGHT AGAINST SELF-INCRIMINATION 325–32, 495 n.43 (1968). See also Culombe v. Connecticut, 367 U.S. 568, 581–84, especially 583 n.25 (1961) (Justice Frankfurter announcing judgment of the Court). back
295
318 U.S. 332 (1943). See also Anderson v. United States, 318 U.S. 350 (1943). back
296
In Upshaw v. United States, 335 U.S. 410 (1948), the Court rejected lower court interpretations that delay in arraignment was but one factor in determining the voluntariness of a confession, and held that a confession obtained after a thirty-hour delay was inadmissible per se. Mallory v. United States, 354 U.S. 449 (1957), held that any confession obtained during an unnecessary delay in arraignment was inadmissible. A confession obtained during a lawful delay before arraignment was admissible. United States v. Mitchell, 322 U.S. 65 (1944). back
297
McNabb v. United States, 318 U.S. 332, 340 (1943); Upshaw v. United States, 335 U.S. 410, 414 n.2 (1948). Burns v. Wilson, 346 U.S. 137, 145 n.12 (1953), indicated that because the Court had no supervisory power over courts-martial, the rule did not apply in military courts. back
298
Gallegos v. Nebraska, 342 U.S. 55, 60, 63–64, 71–73 (1951); Stein v. New York, 346 U.S. 156, 187–88 (1953); Culombe v. Connecticut, 367 U.S. 568, 599–602 (1961) (Justice Frankfurter announcing judgment of the Court). back
299
Rule 5(a) requiring prompt arraignment was promulgated in 1946, but the Court in McNabb relied on predecessor statutes, some of which required prompt arraignment. Cf. Mallory v. United States, 354 U.S. 449, 451–54 (1957). Rule 5(b) requires that the magistrate at arraignment must inform the suspect of the charge against him, must warn him that what he says may be used against him, must tell him of his right to counsel and his right to remain silent, and must also provide for the terms of bail. back
300
McNabb v. United States, 318 U.S. 332, 343 (1943); Mallory v. United States, 354 U.S. 449, 452–53 (1957). back
301
The provision was part of the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 210, 18 U.S.C. § 3501(c). back
302
556 U.S. ___, No. 07–10441 (2009). back
303
556 U.S. ___, No. 07–10441, slip op. at 18. back
304
Brown v. Mississippi, 297 U.S. 278 (1936). “[T]he question of the right of the State to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter. . . . It would be difficult to conceive of methods more revolting to the sense of justice than those taken to procure the confessions of these petitioners, and the use of the confessions thus obtained as the basis for conviction and sentence was a clear denial of due process.” Id. at 285, 286. back
305
Culombe v. Connecticut, 367 U.S. 568, 570–602 (1961) (announcing judgment of the Court). back
306
367 U.S. at 602. back
307
“The inquiry whether, in a particular case, a confession was voluntarily or involuntarily made involves, at the least, a three-phased process. First, there is the business of finding the crude historical facts, the external ‘phenomenological’ occurrences and events surrounding the confession. Second, because the concept of ‘voluntariness’ is one which concerns a mental state, there is the imaginative recreation, largely inferential, of internal, ‘psychological’ fact. Third, there is the application to this psychological fact of standards for judgment informed by the larger legal conceptions ordinarily characterized as rules of law but which, also, comprehend both induction from, and anticipation of, factual circumstances.” 367 U.S. at 603. See Developments in the Law—Confessions, 79 HARV. L. REV. 935, 973–82 (1966). back
308
Brown v. Mississippi, 297 U.S. 278 (1936). back
309
309 U.S. 227 (1940). back
310
322 U.S. 143 (1944). Dissenting, Justices Jackson, Frankfurter, and Roberts protested that “interrogation per se is not, while violence per se is, an outlaw.” A confession made after interrogation was not truly “voluntary” because all questioning is “inherently coercive,” because it puts pressure upon a suspect to talk. Thus, in evaluating a confession made after interrogation, the Court must, they insisted, determine whether the suspect was in possession of his own will and self-control and not look alone to the length or intensity of the interrogation. They accused the majority of “read[ing] an indiscriminating hostility to mere interrogation into the Constitution” and preparing to bar all confessions made after questioning. Id. at 156. A possible result of the dissent was the decision in Lyons v. Oklahoma, 322 U.S. 596 (1944), which stressed deference to state-court factfinding in assessing the voluntariness of confessions. back
311
316 U.S. 547 (1942). See also Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 310 U.S. 530 (1940); Lomax v. Texas, 313 U.S. 544 (1941); Vernon v. Alabama, 313 U.S. 540 (1941). back
312
Blackburn v. Alabama, 361 U.S. 199, 206 (1960). back
313
Lisenba v. California, 314 U.S. 219 (1941). back
314
Watts v. Indiana, 338 U.S. 49 (1949) (Suspect held incommunicado without arraignment for seven days without being advised of his rights. He was held in solitary confinement in a cell with no place to sleep but the floor and questioned each day except Sunday by relays of police officers for periods ranging in duration from three to nine-and-one-half hours); Turner v. Pennsylvania, 338 U.S. 62 (1949) (suspect held on suspicion for five days without arraignment and without being advised of his rights. He was questioned by relays of officers for periods briefer than in Watts during both days and nights); Harris v. South Carolina, 338 U.S. 68 (1949) (Suspect in murder case arrested in Tennessee on theft warrant, taken to South Carolina, and held incommunicado. He was questioned for three days for periods as long as 12 hours, not advised of his rights, not told of the murder charge, and denied access to friends and family while being told his mother might be arrested for theft). Justice Jackson dissented in the latter two cases, willing to hold that a confession obtained under lengthy and intensive interrogation should be admitted short of a showing of violence or threats of it and especially if the truthfulness of the confession may be corroborated by independent means. 338 U.S. at 57. back
315
346 U.S. 156 (1953). back
316
346 U.S. at 185. back
317
373 U.S. 503 (1963) (confession obtained some 16 hours after arrest but interrogation over this period consumed little more than two hours; he was refused in his requests to call his wife and told that his cooperation was necessary before he could communicate with his family). back
318
373 U.S. at 514. See also Spano v. New York, 360 U.S. 315 (1959). (After eight hours of almost continuous questioning, suspect was induced to confess by rookie policeman who was a childhood friend and who played on suspect’s sympathies by falsely stating that his job as a policeman and the welfare of his family was at stake); Rogers v. Richmond, 365 U.S. 534 (1961) (suspect resisted questioning for six hours but yielded when officers threatened to bring his invalid wife to headquarters). More recent cases include Davis v. North Carolina, 384 U.S. 737 (1966) (escaped convict held incommunicado 16 days but periods of interrogation each day were about an hour each); Greenwald v. Wisconsin, 390 U.S. 519 (1968); Darwin v. Connecticut, 391 U.S. 346 (1968). back
319
Gallegos v. Colorado, 370 U.S. 49 (1962); Blackburn v. Alabama, 361 U.S. 199 (1960); Fikes v. Alabama, 352 U.S. 191 (1957); Payne v. Arkansas, 356 U.S. 560 (1958); Reck v. Pate, 367 U.S. 433 (1961); Culombe v. Connecticut, 367 U.S. 568 (1961). The suspect in Spano v. New York, 360 U.S. 315 (1959), was a 25-year-old foreigner with a history of emotional instability. The fact that the suspect was a woman was apparently significant in Lynumn v. Illinois, 372 U.S. 528 (1963), in which officers threatened to have her children taken from her and to have her taken off the welfare relief rolls. But a suspect’s mental state alone—even insanity—is insufficient to establish involuntariness absent some coercive police activity. Colorado v. Connelly, 479 U.S. 157 (1986). back
320
E.g., Leyra v. Denno, 347 U.S. 556 (1954) (confession obtained by psychiatrist trained in hypnosis from a physically and emotionally exhausted suspect who had already been subjected to three days of interrogation); Townsend v. Sain, 372 U.S. 293 (1963) (suspect was administered drug with properties of “truth serum” to relieve withdrawal pains of narcotics addiction, although police probably were not aware of drug’s side effects). back
321
E.g., Johnson v. New Jersey, 384 U.S. 719 (1966); Davis v. North Carolina, 384 U.S. 737 (1966); Ashdown v. Utah, 357 U.S. 426 (1958); Thomas v. Arizona, 356 U.S. 390 (1958). back
322
Wong Sun v. United States, 371 U.S. 471 (1963). back
323
Fahy v. Connecticut, 375 U.S. 85 (1963). back
324
United States v. Bayer, 331 U.S. 532 (1947); Lyons v. Oklahoma, 322 U.S. 596 (1944); Leyra v. Denno, 347 U.S. 556 (1954); Darwin v. Connecticut, 391 U.S. 346 (1968). back
325
384 U.S. 436 (1966). back
326
Brown v. Mississippi, 297 U.S. 278 (1936); Chambers v. Florida, 309 U.S. 227 (1940); White v. Texas, 310 U.S. 530 (1940). back
327
Hopt v. Utah, 110 U.S. 574 (1884); Wilson v. United States, 162 U.S. 613 (1896). back
328
3 J. WIGMORE, A TREATISE ON THE ANGLO-AMERICAN SYSTEM OF EVIDENCE § 882, at 246 (3d ed. 1940). back
329
314 U.S. 219, 236 (1941). back
330
Compare Ashcraft v. Tennessee, 322 U.S. 143 (1944), with Lyons v. Oklahoma, 322 U.S. 596 (1944), and Malinski v. New York, 324 U.S. 401 (1945). In Watts v. Indiana, 338 U.S. 49 (1949), Harris v. South Carolina, 338 U.S. 68 (1949), and Turner v. Pennsylvania, 338 U.S. 62 (1949), five Justices followed the due process-fairness standard while four adhered to a trustworthiness rationale. See 338 U.S. at 57 (Justice Jackson concurring and dissenting). In Stein v. New York, 346 U.S. 156, 192 (1953), the trustworthiness rationale had secured the adherence of six Justices. The primary difference between the two standards is the admissibility under the trustworthiness standard of a coerced confession if its trustworthiness can be established, if, that is, it can be corroborated. back
331
365 U.S. 534, 540–41 (1961). Similar expressions may be found in Spano v. New York, 360 U.S. 315 (1959), and Blackburn v. Alabama, 361 U.S. 199 (1960). See also Culombe v. Connecticut, 367 U.S. 568, 583 n.25 (1961), in which Justice Frankfurter, announcing the judgment of the Court, observed that “the conceptions underlying the rule excluding coerced confessions and the privilege again self-incrimination have become, to some extent, assimilated.” back
332
Culombe v. Connecticut, 367 U.S. 568, 601 (1961). The same thought informs the options of the Court in Haynes v. Washington, 373 U.S. 503 (1963). back
333
378 U.S. 1 (1964). back
334
297 U.S. 278 (1936). back
335
314 U.S. 219 (1941). back
336
Malloy v. Hogan, 378 U.S. 1, 6–7 (1964). Protesting that this was “post facto reasoning at best,” Justice Harlan contended that the “majority is simply wrong” in asserting that any of the state confession cases represented anything like a self-incrimination basis for the conclusions advanced. Id. at 17–19. Bram v. United States, 168 U.S. 532 (1897), is discussed under “Confessions: Police Interrogation, Due Process, and Self-Incrimination,” supra. back
337
378 U.S. 478 (1964). Joining Justice Goldberg in the majority were Chief Justice Warren and Justices Black, Douglas, and Brennan. Justices Clark, Harlan, Stewart, and White dissented. Id. at 492, 493, 495. back
338
Previously, it had been held that a denial of a request to consult counsel was but one of the factors to be considered in assessing voluntariness. Crooker v. California, 357 U.S. 433 (1958); Cicenia v. Lagay, 357 U.S. 504 (1958). Chief Justice Warren and Justices Black, Douglas, and Brennan were prepared in these cases to impose a requirement of right to counsel per se. Post-indictment interrogation without the presence of counsel seemed doomed after Spano v. New York, 360 U.S. 315 (1959), and this was confirmed in Massiah v. United States, 377 U.S. 201 (1964). See discussion of “Custodial Interrogation” under Sixth Amendment, infra. back
339
Escobedo v. Illinois, 378 U.S. 478, 485, 491 (1964) (both pages containing assertions of the suspect’s “absolute right to remain silent” in the context of police warnings prior to interrogation). back
340
384 U.S. 436, 444–45 (1966). In Johnson v. New Jersey, 384 U.S. 719 (1966), the Court held that neither Escobedo nor Miranda was to be applied retroactively. In cases where trials commenced after the decisions were announced, the due process “totality of circumstances” test was to be the key. Cf. Davis v. North Carolina, 384 U.S. 737 (1966). back
341
384 U.S. at 444–445. back
342
Justices Clark, Harlan, Stewart, and White dissented, finding no historical support for the application of the clause to police interrogation and rejecting the policy considerations for the extension put forward by the majority. Miranda v. Arizona, 384 U.S. 436, 499, 504, 526 (1966). Justice White argued that while the Court’s decision was not compelled or even strongly suggested by the Fifth Amendment, its history, and the judicial precedents, this did not preclude the Court from making new law and new public policy grounded in reason and experience, but he contended that the change made in Miranda was ill-conceived because it arose from a view of interrogation as inherently coercive and because the decision did not adequately protect society’s interest in detecting and punishing criminal behavior. Id. at 531–45. back
343
384 U.S. at 457. For the continuing recognition of the difference between the traditional involuntariness test and the Miranda test, see Michigan v. Tucker, 417 U.S. 433, 443–46 (1974); Mincey v. Arizona, 437 U.S. 385, 396–402 (1978). The acknowledgment that the decision considerably expanded upon previous doctrine, even if the assimilation of self-incrimination values by the confession-exclusion rule be considered complete, was more clearly made a week after Miranda when, in denying retroactivity to that case and to Escobedo, the Court asserted that law enforcement officers had relied justifiably upon prior cases, “now no longer binding,” which treated the failure to warn a suspect of his rights or the failure to grant access to counsel as one of the factors to be considered. Johnson v. New Jersey, 384 U.S. 719, 731 (1966). back
344
See, e.g., Rhode Island v. Innis, 446 U.S. 291, 304 (1980) (Chief Justice Burger concurring) (“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.”) back
345
Pub. L. 90–351, § 701(a), 82 Stat. 210, 18 U.S.C. § 3501. See S. Rep. No. 1097, 90th Cong., 2d Sess. 37–53 (1968). An effort to enact a companion measure applicable to the state courts was defeated. back
346
New York v. Quarles, 467 U.S. 549, 653 (1984). back
347
Michigan v. Tucker, 417 U.S. 433, 444 (1974). back
348
530 U.S. 428 (2000). back
349
530 U.S. at 438. back
350
530 U.S. at 439 (quoting from Miranda, 384 U.S. at 441–42). back
351
530 U.S. at 444 (Justices Scalia and Thomas dissenting). back
352
564 U.S. ___, No. 09–11121, slip op. (2011) (Jusitces Alito, Scalia, Thomas and Chief Justice Roberts, dissenting). back
353
See, e.g., Florida v. Powell, 559 U.S. ___, No. 08–1175, slip op. at 8, 12–13 (2010). back
354
530 U.S. at 443. back
355
In Michigan v. Tucker, 417 U.S. 433, 439 (1974), the Court had suggested a distinction between a constitutional violation and a violation of “the prophylactic rules developed to protect that right.” The actual holding in Tucker, however, had turned on the fact that the interrogation had preceded the Miranda decision and that warnings—albeit not full Miranda warnings—had been given. back
356
428 U.S. 465 (1976). back
357
507 U.S. 680 (1993). Even though a state prisoner’s Miranda claim may be considered in federal habeas review, the scope of federal habeas review is narrow. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a state court judgment may be set aside on habeas review only if the judgment is found to be contrary to, or an unreasonable application of, clearly established Supreme Court precedent. By contrast, a federal court reviewing a state court judgment on direct review considers federal legal questions de novo and can overturn a state court holding based on its own independent assessment of federal legal issues. This difference in scope of review can be critical. Compare Yarborough v. Alvarado, 541 U.S. 652 (2004) (habeas petition denied because state court’s refusal to take a juvenile’s age into account in applying Miranda was not an unreasonable application of clearly established Supreme Court precedent), with J.D.B. v. North Carolina, 564 U.S. ___, No. 09–11121, slip op. (2011) (on the Court’s de novo review of the age issue, state court’s refusal to take a juvenile’s age into account in applying Miranda held to be in error, and case remanded). back
358
367 U.S. 643 (1961). back
359
507 U.S. at 686–93. back
360
507 U.S. at 693. back
361
Miranda v. Arizona, 384 U.S. 436, 444 (1966) (emphasis added). back
362
Stansbury v. California, 511 U.S. 318 (1994). back
363
J.D.B. v. North Carolina, 564 U.S. ___, No. 09–11121, slip op. (2011) (case remanded to evaluate whether a 13-year-old student questioned by a uniformed police officer and school administrators on school grounds was in custody). back
364
Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (roadside questioning of motorist stopped for traffic violation not custodial interrogation until “freedom of action is curtailed to a ‘degree associated with formal arrest’ ”). Thus, “custody” for self-incrimination purposes under the Fifth Amendment does not necessarily cover all detentions that are “seizures” under the Fourth Amendment. Id. back
365
Howes v. Fields, 565 U.S. ___, No. 10–680, slip op. (2012) (taking a prisoner incarcerated for disorderly conduct aside for questioning about an unrelated child molestation incident held, 6–3, not to constitute custodial interrogation under the totality of the circumstances in the case), distinguishing Mathis v. United States, 391 U.S. 1 (1968) (questioning state prisoner about unrelated federal tax violation held to be custodial interrogation). While the Howes Court split 6–3 on whether a custodial interrogation had taken place for Fifth Amendment purposes, the case was before it on habeas review, which requires that a clearly established Supreme Court precedent mandates a contrary result. All the Howes Justices agreed that Mathis had not, for purposes of habeas review of a state case, “clearly established” that all private questioning of an inmate about previous, outside conduct was “custodial” per se. Rather, Howes explained that a broader assessment of all relevant factors in each case was necessary to establish coercive pressure amounting to “custody.” Cf. Maryland v. Shatzer, 559 U.S. ___, No. 08–680, slip op. (2010) (extended release of interrogated inmate back into the general prison population broke “custody” for purposes of later questioning); see also Illinois v. Perkins, 496 U.S. 292 (1990) (inmate’s conversation with an undercover agent does not create a coercive, police-dominated environment and does not implicate Miranda if the suspect does not know that he is conversing with a government agent). back
366
394 U.S. 324 (1969) (police entered suspect’s bedroom at 4 a.m., told him he was under arrest, and questioned him; four of the eight Justices who took part in the case, including three dissenters, voiced concern about this “broadening” of Miranda beyond the police station). back
367
Oregon v. Mathiason, 429 U.S. 492 (1977) (suspect came voluntarily to police station to be questioned, he was not placed under arrest while there, and he was allowed to leave at end of interview, even though he was named by victim as culprit, questioning took place behind closed doors, and he was falsely informed his fingerprints had been found at scene of crime); Salinas v. Texas, 570 U.S. ___, No. 12–246, slip op. (2013) (plurality opinion) (voluntarily accompanying police to station for questioning). Cf. Stansbury v. California, 511 U.S. 318 (1994). See also Minnesota v. Murphy, 465 U.S. 420 (1984) (required reporting to probationary officer is not custodial situation); Yarborough v. Alvarado, 541 U.S. 652 (2004) (state court determination that teenager brought to police station by his parents was not “in custody” was not “unreasonable” for purposes of federal habeas review under the standards of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)). back
368
Beckwith v. United States, 425 U.S. 341 (1976) (IRS agents’ interview with taxpayer in private residence was not a custodial interrogation, although inquiry had “focused” on him). back
369
This holds even in the case of convict who is released after interrogation back into the general population. Maryland v. Shatzer, 559 U.S. ___, No. 08–680, slip op. (2010). back
370
Edwards v. Arizona, 451 U.S. 477 (1981). back
371
446 U.S. 291 (1980). A remarkably similar factual situation was presented in Brewer v. Williams, 430 U.S. 387 (1977), which was decided under the Sixth Amendment. In Brewer, and also in Massiah v. United States, 377 U.S. 201 (1964), and United States v. Henry, 447 U.S. 264 (1980), the Court has had difficulty in expounding on what constitutes interrogation for Sixth Amendment counsel purposes. The Innis Court indicated that the definitions are not the same for each Amendment. 446 U.S. at 300 n.4. back
372
Rhode Island v. Innis, 446 U.S. 291, 300–01 (1980). back
373
446 U.S. at 302–04. Justices Marshall, Brennan, and Stevens dissented, id. at 305, 307. See also Illinois v. Perkins, 496 U.S. 292 (1990) (absence of coercive environment makes Miranda inapplicable to jail cell conversation between suspect and police undercover agent). back
374
481 U.S. 520 (1987). back
375
451 U.S. 454 (1981). back
376
451 U.S. at 467. back
377
Miranda v. Arizona, 384 U.S. 436, 444 (1966). See id. at 469–73. back
378
384 U.S. at 444. back
379
384 U.S. at 469. back
380
California v. Prysock, 453 U.S. 355 (1981). Rephrased, the test is whether the warnings “reasonably conveyed” a suspect’s rights, the Court adding that reviewing courts “need not examine Miranda warnings as if construing a will or defining the terms of an easement.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989) (upholding warning that included possibly misleading statement that a lawyer would be appointed “if and when you go to court”). Even where warnings were not the “clearest possible formulation of Miranda’s right-to-counsel advisement,” the Court found them acceptable as “sufficiently comprehensive and comprehensible when given a commonsense reading.” Florida v. Powell, 559 U.S. ___, No. 08–1175, slip op. at 12 (2010) (emphasis in original) (upholding warning of a right to talk to a lawyer before answering any questions, coupled with advice that the right could be invoked at any time during police questioning, as adequate to inform a suspect of his right to have a lawyer present during questioning). back
381
Miranda v. Arizona, 384 U.S. 436, 472, 473–74 (1966). While a request for a lawyer is a per se invocation of Fifth Amendment rights, a request for another advisor, such as a probation officer or family member, may be taken into account in determining whether a suspect has evidenced an intent to claim his right to remain silent. Fare v. Michael C., 442 U.S. 707 (1979) (juvenile who requested to see his probation officer, rather than counsel, found under the totality-of-the-circumstances to have not invoked a right to remain silent). back
382
451 U.S. 477 (1981). back
383
451 U.S. at 484–85. The decision was unanimous, but three concurrences objected to a special rule limiting waivers with respect to counsel to suspect-initiated further exchanges. Id. at 487, 488 (Chief Justice Burger and Justices Powell and Rehnquist). In Oregon v. Bradshaw, 462 U.S. 1039 (1983), the Court held, albeit without a majority of Justices in complete agreement as to rationale, that an accused who had initiated further conversations with police had knowingly and intelligently waived his right to have counsel present. So too, an accused who expressed a willingness to talk to police, but who refused to make a written statement without presence of counsel, was held to have waived his rights with respect to his oral statements. Connecticut v. Barrett, 479 U.S. 523 (1987). In Minnick v. Mississippi, 498 U.S. 146 (1990), the Court interpreted Edwards to bar interrogation without counsel present of a suspect who had earlier consulted with an attorney on the accusation at issue. “[W]hen counsel is requested, interrogation must cease, and officials may not reinstate interrogation without counsel present, whether or not the accused has consulted with his attorney.” Id. at 153. The Court has held that Edwards should not be applied retroactively to a conviction that had become final, Solem v. Stumes, 465 U.S. 638 (1984), but that Edwards does apply to cases pending on appeal at the time it was decided. Shea v. Louisiana, 470 U.S. 51 (1985). back
384
Arizona v. Roberson, 486 U.S. 675 (1988). By contrast, the Sixth Amendment right to counsel is offense-specific, and does not bar questioning about a crime unrelated to the crime for which the suspect has been charged. See McNeil v. Wisconsin, 501 U.S. 171 (1991). back
385
Minnick v. Mississippi, 498 U.S. 146 (1990). back
386
559 U.S. ___, No. 08–680, slip op. (2010). back
387
Id. back
388
For a pre-Edwards case on the right to remain silent, see Michigan v. Mosley, 423 U.S. 96 (1975) (suspect given Miranda warnings at questioning for robbery, requested cessation of interrogation, and police complied; some two hours later, a different policeman interrogated suspect about a murder, gave him a new Miranda warning, and suspect made incriminating admission; since police “scrupulously honored” suspect’s request, admission valid). back
389
Miranda v. Arizona, 384 U.S. 436, 475 (1966). See also Tague v. Louisiana, 444 U.S. 469 (1980). A knowing and intelligent waiver need not be predicated on complete disclosure by police of the intended line of questioning, hence an accused’s signed waiver following arrest for one crime is not invalidated by police having failed to inform him of intent to question him about another crime. Colorado v. Spring, 479 U.S. 564 (1987). back
390
384 U.S. at 475. back
391
North Carolina v. Butler, 441 U.S. 369, 374–75 (1979) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Oregon v. Elstad, 470 U.S. 298 (1985), the Court held that a confession following a Miranda warning is not necessarily tainted by an earlier confession obtained without a warning, as long as the earlier confession had been voluntary. See Bobby v. Dixon, 565 U.S. ___, No. 10–1540, slip op. (2012). See also Moran v. Burbine, 475 U.S. 412 (1986) (signed waivers following Miranda warnings not vitiated by police having kept from suspect information that attorney had been retained for him by a relative); Fare v. Michael C., 442 U.S. 707 (1979) (juvenile who consented to interrogation after his request to consult with his probation officer was denied found to have waived rights; totality-of-the-circumstances analysis held to apply). Elstad was distinguished in Missouri v. Seibert, 542 U.S. 600 (2004), however, when the failure to warn prior to the initial questioning was a deliberate attempt to circumvent Miranda by use of a two-step interrogation technique, and the police, prior to eliciting the statement for the second time, did not alert the suspect that the first statement was likely inadmissible. back
392
North Carolina v. Butler, 441 U.S. 369 (1979). In Butler, the defendant had refused to sign a waiver but agreed to talk with FBI agents nonetheless. On considering whether the defendant had thereby waived his right to counsel (his right to remain silent aside), the Court held that no express oral or written statement was required. Though the defendant was never directly responsive on his desire for counsel, the Court found that a waiver could be inferred from his actions and words. back
393
560 U.S. ___, No. 08–1470, slip op. (2010). back
394
560 U.S. ___, No. 08–1470, slip op. at 12–13 (2010). back
395
Davis v. United States, 512 U.S. 452 (1994) (suspect’s statement that “maybe I should talk to a lawyer,” uttered after Miranda waiver and after an hour and a half of questioning, did not constitute such a clear request for an attorney when, in response to a direct follow-up question, he said “no, I don’t want a lawyer”). back
396
Miranda v. Arizona, 384 U.S. 436, 479 (1966). See also Harrison v. United States, 392 U.S. 219 (1968) (rejecting as tainted the prosecution’s use at the second trial of defendant’s testimony at his first trial rebutting confessions obtained in violation of McNabb-Mallory). back
397
Estelle v. Smith, 451 U.S. 454 (1981). The Court has yet to consider the applicability of the ruling in a noncapital, nonbifurcated trial case. back
398
United States v. Patane, 542 U.S. 630 (2004) (allowing introduction of a pistol, described as a “nontestimonial fruit” of an unwarned statement). See also Michigan v. Tucker, 417 U.S. 433 (1974) (upholding use of a witness revealed by defendant’s statement elicited without proper Miranda warning). Note too that confessions may be the poisonous fruit of other constitutional violations, such as illegal searches or arrests. E.g., Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982). back
399
Under Walter v. United States, 347 U.S. 62 (1954), the defendant not only denied the offense of which he was accused (sale of drugs), but also asserted he had never dealt in drugs. The prosecution was permitted to impeach him concerning heroin seized illegally from his home two years before. The Court observed that the defendant could have denied the offense without making the “sweeping” assertions, as to which the government could impeach him. back
400
401 U.S. 222 (1971). The defendant had denied only the commission of the offense. The Court observed that it was only “speculative” to think that impermissible police conduct would be encouraged by permitting such impeachment, a resort to deterrence analysis being contemporaneously used to ground the Fourth Amendment exclusionary rule, whereas the defendant’s right to testify was the obligation to testify truthfully and the prosecution could impeach him for committing perjury. See also United States v. Havens, 446 U.S. 620 (1980) (Fourth Amendment). back
401
420 U.S. 714 (1975). By contrast, a defendant may not be impeached by evidence of his silence after police have warned him of his right to remain silent. Doyle v. Ohio, 426 U.S. 610 (1976). back
402
E.g., Mincey v. Arizona, 437 U.S. 385 (1978); New Jersey v. Portash, 440 U.S. 450 (1979). back
403
467 U.S. 649 (1984). back
404
The Court’s opinion was joined by Chief Justice Burger and by Justices White, Blackmun, and Powell. Justice O’Connor would have ruled inadmissible the suspect’s response, but not the gun retrieved as a result of the response, and Justices Marshall, Brennan, and Stevens dissented. back
405
467 U.S. at 658–59. back
406
Berkemer v. McCarty, 468 U.S. 420, 432 (1984). back
407
468 U.S. at 434. back
408
Culombe v. Connecticut, 367 U.S. 568, 603–06 (1961). back
409
367 U.S. at 603. See Ashcraft v. Tennessee, 322 U.S. 143, 152–53 (1944); Lyons v. Oklahoma, 322 U.S. 596, 602–03 (1944); Watts v. Indiana, 338 U.S. 49, 50–52 (1949); Gallegos v. Nebraska, 342 U.S. 55, 60–62 (1951); Stein v. New York, 346 U.S. 156, 180–82 (1953); Payne v. Arkansas, 356 U.S. 560, 561–62 (1958). back
410
Culombe v. Connecticut, 367 U.S. 568, 605 (1961). See Watts v. Indiana, 338 U.S. 49, 51 (1949); Malinski v. New York, 324 U.S. 401, 404, 417 (1945). back
411
“In cases in which there is a claim of denial of rights under the Federal Constitution this Court is not bound by the conclusions of lower courts, but will re-examine the evidentiary basis on which those conclusions are founded.” Niemotko v. Maryland, 340 U.S. 268, 271 (1951); Time, Inc. v. Pape, 401 U.S. 279, 284 (1971), and cases cited therein. back
412
507 U.S. 680 (1993). back
413
428 U.S. 465 (1976). See discussion of Stone v. Powell under the Fourth Amendment, infra. back
414
Jackson v. Denno, 378 U.S. 368, 410–23 (1964) (appendix to opinion of Justice Black concurring in part and dissenting in part). back
415
346 U.S. 156, 170–79 (1953). Significant to the Court’s conclusion on this matter was the further conclusion of the majority that coerced confessions were inadmissible solely because of their unreliability; if their trustworthiness could be established the utilization of an involuntary confession violated no constitutional prohibition. This conception was contrary to earlier cases and was subsequently repudiated. See Jackson v. Denno, 378 U.S. 368, 383–87 (1964). back
416
378 U.S. 368 (1964). On the sufficiency of state court determinations, see Swenson v. Stidham, 409 U.S. 224 (1972); La Vallee v. Della Rose, 410 U.S. 690 (1973). back
417
385 U.S. 538 (1967). back
418
Jackson v. Denno, 378 U.S. 368 and n.8 (1964); Lego v. Twomey, 404 U.S. 477, 489–90 (1972) (rejecting contention that jury should be required to pass on voluntariness following judge’s determination). back
419
Lego v. Twomey, 404 U.S. 477 (1972). back
420
Colorado v. Connelly, 479 U.S. 157 (1986). back