Minnesota v. Murphy

*441 Justice Marshall,

with whom Justice Stevens joins, and with whom Justice Brennan joins except as to Part II-A, dissenting.

The opinion of the Court helpfully clarifies the scope of the privilege against self-incrimination that may be asserted by a probationer when asked questions by an officer of the State. As the majority points out, two principles shape the probationer’s constitutional rights. First, because probation revocation proceedings are not criminal in nature, Gagnon v. Scarpelli, 411 U. S. 778, 782 (1973), and because the Fifth Amendment ban on compelled self-incrimination applies only to criminal proceedings, the possibility that a truthful answer to a question might result in the revocation of his probation does not accord the probationer a constitutional right to refuse to respond. Ante, at 435-436, n. 7. Second, a probationer retains the privilege enjoyed by all citizens to refuse “to answer official questions put to him in any . . . proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings,” Lefkowitz v. Turley, 414 U. S. 70, 77 (1973). Ante, at 426.

From the foregoing propositions, it follows that the power of a State to compel a probationer to answer a given question varies depending upon the manner in which the probationer’s answer might incriminate him. If a truthful response might reveal that he has violated a condition of his probation but would not subject him to criminal prosecution, the State may insist that he respond and may penalize him for refusing to do so. 1 See ante, at 435-436, n. 7. By contrast, if there is a chance that a truthful answer to a given question would expose the probationer to liability for a crime different from the crime for which he has already been convicted, he has a right to refuse to answer and the State may not attempt to coerce *442 him to forgo that right. 2 See ante, at 435. As the majority points out, if the answer to a question might lead both to criminal sanctions and to probation revocation, the State has the option of insisting that the probationer respond, in return for an express guarantee of immunity from criminal liability. 3 Ante, at 436, n. 7. Unless it exercises that option, however, the State may not interfere with the probationer’s right “to remain silent unless he chooses to speak in the unfettered exercise of his own will,” Malloy v. Hogan, 378 U. S. 1, 8 (1964).

The flaw in the opinion of the Court lies not in its analysis of the constitutional rights available to a probationer, but in its finding that those rights were not violated in this case. The majority concludes that, “since Murphy revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled in-criminations.” Ante, at 440. In my view, that conclusion is inconsistent with our prior cases dealing with invocations of the Fifth Amendment. For two independent reasons, Murphy’s failure to claim his privilege against self-incrimination before responding to his probation officer’s inquiry regarding his participation in the 1974 murder did not result in the forfeiture of his right to object to the use of his admissions in a subsequent criminal prosecution. First, the State of Minne *443 sota had threatened Murphy with a penalty for refusing to respond to questions; our decisions make clear that such a threat relieves its target of the duty to claim the benefit of the Fifth Amendment. Second, under the circumstances of this case, the State was obliged to prove that Murphy was aware of his constitutional rights and freely waived them; by showing nothing more than that Murphy failed to assert his privilege before answering, the State failed to carry its burden.

I

As the majority acknowledges, if an officer of a State asks a person a question under circumstances that deprive him of a “‘free choice to admit, to deny, or to refuse to answer,’” and he answers the question without attempting to assert his privilege against self-incrimination, his response will be deemed to have been “compelled” and will be inadmissible as evidence against him. Garner v. United States, 424 U. S. 648, 656-657 (1976) (quoting Lisenba v. California, 314 U. S. 219, 241 (1941)); see ante, at 429. Our cases make clear that the State will be found to have deprived the person of such a “free choice” if it threatens him with a substantial sanction if he refuses to respond. Lefkowitz v. Turley, 414 U. S., at 82-83 . Two rules flow from the foregoing principle: If the State presents a person with the “Hobson’s choice” of incriminating himself or suffering a penalty, and he nevertheless refuses to respond, the State cannot constitutionally make good on its threat to penalize him. Id., at 77 ; Sanitation Men v. Commissioner of Sanitation, 392 U. S. 280, 284 (1968); Gardner v. Broderick, 392 U. S. 273, 277-278 (1968). Conversely, if the threatened person decides to talk instead of asserting his privilege, the State cannot use his admissions against him in a subsequent criminal prosecution. Garrity v. New Jersey, 385 U. S. 493, 500 (1967).

It might appear that these two rules would defeat one another. A person presented with what appears to be a Hobson’s choice could be charged with the knowledge that, *444 under this Court’s precedents, he may choose either option with impunity. His awareness that the State can use neither his silence nor his confessions against him would seem to eliminate the “compulsion” supposedly inherent in the situation. 4 More specifically, it might be argued that, because it is now settled that a person cannot be penalized for asserting his Fifth Amendment privilege, if he decides to talk rather than assert his constitutional right to remain silent, his statements should be deemed voluntary.

This Court has consistently refused to allow the two rules to undercut each other in this way. 5 Our refusal derives from two considerations. First, many — probably most — of the persons threatened with sanctions if they refuse to answer official questions lack sufficient knowledge of this Court’s decisions to be aware that the State’s threat is idle. Second, the State’s attempt to coerce self-incriminating statements by promising to penalize silence is itself constitutionally offensive, and the mere possibility that the State profited from the attempt is sufficient to forbid it to make use of the admissions it elicited. See Gardner v. Broderick, supra, at 279 .

For similar reasons, when a person who has been threatened with a penalty makes self-incriminating statements, we *445 have declined to inquire whether his decision to speak was the proximate result of the threat. In most cases, it would be difficult for the person to prove that, but for the threat, he would have held his peace and that no other intervening causes (such as pangs of conscience) induced him to confess. 6 The State, having exerted pressures repugnant to the Constitution, should not be allowed to profit from the uncertainty whether those pressures had their intended effect. Sensitivity to the foregoing concerns is reflected in our decision in Garrity v. New Jersey, swpra. The petitioners in that case had never argued that their confessions were in fact induced by the State’s warning that they might be fired if they refused to answer, and the lower courts had not so found. 7 Nevertheless, the Court concluded that the petitioners’ statements “were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary.” Id., at 497-498 (footnote omitted).

In sum, the majority errs when it suggests that, to claim the benefit of the Fifth Amendment, a person who made self-incriminating statements after being threatened with a penalty if he remained silent must show that his apprehension that the State would carry out its promise was objectively “reasonable, ” ante, at 438. Our decisions make clear that the *446 threat alone is sufficient to render all subsequent testimony “compelled.” See supra, at 443-444. 8 Likewise, the majority errs when it implies that a defendant has a duty to prove that the State’s threat, and not some other motivation, prompted his confession, see ante, at 437-438. Under our precedents, the defendant need only prove that the State presented him with a constitutionally impermissible choice and that he thereupon incriminated himself. See supra, at 444-445.

When the foregoing principles are applied to this case, it becomes clear that Murphy’s confession to the 1974 murder must be deemed to have been “compelled.” When Murphy was placed on probation, he was given a letter setting forth the conditions under which he was discharged. The pertinent portions of the letter provide:

“For the present you are only conditionally released. If you comply with the conditions of your probation you may expect to be discharged at the expiration of the period stated. If you fail to comply with the requirements you may be returned to Court at any time for further hearing or commitment. . . .

“It will be necessary for you to obey strictly the following conditions:

“BE TRUTHFUL to your Probation Officer in all matters.” App. to Pet. for Cert. C-33 — C-34 (emphasis in original).

Murphy was required to sign the letter, attesting that he had read and understood the instructions. Id., at C-35.

*447 The majority contends that the foregoing passages merely required Murphy to answer nonincriminating questions and forbade him to make false statements to his probation officer. Ante, at 437. The majority’s interpretation, which is essential to its result, is simply incredible. A reasonable layman would interpret the imperative, “be truthful ... in all matters,” as a command to answer honestly all questions presented. Any ambiguity inherent in the language of the directive is dispelled by its context. The duty to be truthful in dealings with the probation officer is listed as the first term of the conditions of probation. The critical phrase is capitalized. And the injunction is immediately preceded by an instruction “to obey strictly the following conditions.” 9

In short, the State of Minnesota presented Murphy with a set of official instructions that a reasonable man would have interpreted to require him, upon pain of the revocation of his probation, to answer truthfully all questions asked by his probation officer. 10 Probation revocation surely constitutes a *448 “substantial sanction.” 11 Under our precedents, therefore, by threatening Murphy with that sanction if he refused to answer, Minnesota deprived itself of constitutional authority to use Murphy’s subsequent answers in a criminal prosecution against him.

The majority’s efforts to avoid that conclusion are unpersuasive. First, the majority faults Murphy for failing to ask his probation officer for a “clarification” of the terms of his probation. Ante, at 437. The letter by which the State informed Murphy of the terms of his probation contained no suggestion that he was entitled to such a “clarification”; on the contrary, the letter informed Murphy that he was required to “obey strictly” the conditions enumerated and that failure to do so might result in his “commitment.” More importantly, as indicated above, our decisions establish that a *449 person told by the State that he may be penalized for refusing to answer does not bear the responsibility to determine whether the State would or could make good on its threat. See swpra, at 443-444. Second, the majority relies on the absence of “direct evidence that Murphy confessed because he feared that his probation would be revoked if he remained silent. ” Ante, at 437. Under our precedents, no such “direct evidence” of a causal link between the threat and the response is required in order to prevent the use in a criminal prosecution of Murphy’s confession. See supra, at 444-445.

In conclusion, because the terms of Murphy’s probation deprived him of “a free choice to admit, to deny, or to refuse to answer” when his probation officer confronted him with the allegation that he had committed the 1974 murder, our decisions forbid the introduction into evidence against him of his confession.

II

Even if Minnesota had not impaired Murphy’s freedom to respond or to refuse to respond to incriminating questions regarding the 1974 murder, I would hold his confession inadmissible because, in view of the circumstances under which he was interrogated, the State had a duty to prove that Murphy waived his privilege against self-incrimination, and it has not made such a showing.

A

It is now settled that, in most contexts, the privilege against self-incrimination is not self-executing. “[I]n the ordinary case,” if a person questioned by an officer of the State makes damaging disclosures instead of asserting his privilege, he forfeits his right to object to subsequent use of his admissions against him. Garner v. United States, 424 U. S., at 654 . This forfeiture occurs even if the person is subject to a general legal duty to respond to the officer’s questions. See United States v. Washington, 431 U. S. 181 (1977); ante, at 427. And it occurs regardless of whether the *450 person’s failure to claim the privilege was founded upon a knowing and intelligent decision to waive his constitutional right not to answer those questions that might incriminate him. Garner v. United States, supra, at 654, n. 9; see also ante, at 427-428.

At first blush, this harsh doctrine seems incompatible with our repeated assertions of the importance of the Fifth Amendment privilege in our constitutional scheme. Twenty years ago, we observed:

“[T]he American system of criminal prosecution is accu-satorial, not inquisitorial, and . . . the Fifth Amendment privilege is its essential mainstay. . . . Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth.” Malloy v. Hogan, 378 U. S., at 7-8 (citation omitted).

In view of our continued adherence to the foregoing principles, 12 it appears anomalous that, in most contexts, we allow governments to take advantage of witnesses’ failure, sometimes as a result of ignorance or momentary inattention, to claim the benefit of the privilege in a “timely” fashion.

The explanation for our seemingly callous willingness to countenance forfeitures of Fifth Amendment rights must be sought in a combination of three factors. First and most importantly, we presume that most people are aware that they need not answer an official question when a truthful answer might expose them to criminal prosecution. “At this point in our history virtually every schoolboy is familiar with the concept, if not the language,” of the constitutional ban on compelled self-incrimination. Michigan v. Tucker, 417 U. S. 433, 439 (1974). We thus take for granted that, in most instances, when a person discloses damaging informa *451 tion in response to an official inquiry, he has made an intelligent decision to waive his Fifth Amendment rights.

Second, in the vast majority of situations in which an officer of the State asks a citizen a question, the officer has no reason to know that a truthful response would reveal that the citizen has committed a crime. Under such circumstances, one of the central principles underlying the Fifth Amendment — that governments should not “deliberately see[k] to avoid the burdens of independent investigation by compelling self-incriminating disclosures” — has little relevance. Garner v. United States, supra, at 655-656. Thus, in the ordinary case, few constitutional values are threatened when the government fails to preface an inquiry with an explicit reminder that a response is not required if it might expose the respondent to prosecution.

Third, a general requirement that government officials preface all questions with such reminders would be highly burdensome. Our concern with the protection of constitutional rights should not blind us to the fact that, in general, governments have the right to everyone’s testimony. E. g., Branzburg v. Hayes, 408 U. S. 665, 688 (1972). A rule requiring officials, before asking citizens for information, to tell them that they need not reveal incriminating evidence would unduly impede the capacity of government to gather the data it needs to function effectively. 13

*452 In sum, a general rule requiring the prosecution, before introducing a confession, to prove that the defendant intelligently and voluntarily waived his right not to incriminate himself would protect few persons (because most know their legal rights), would do little to promote the values that underlie the Fifth Amendment, and would substantially impair the information-gathering capacity of government. 14

It should be apparent that these considerations do not apply with equal force in all contexts. Until today, the Court has been sensitive to variations in their relevance and strength. Accordingly, we have adhered to the general principle that a defendant forfeits his privilege if he fails to assert it before making incriminating statements only in situations implicating several of the factors that support the principle. More specifically, we have applied the principle only in cases in which at least two of the following statements have been true: (a) At the time the damaging disclosures were made, the defendant’s constitutional right not to make them was clearly established, (b) The defendant was given sufficient warning that he would be asked potentially incrimi *453 nating questions to be able to secure legal advice and to reflect upon how he would respond, (c) The environment in which the questions were asked did not impair the defendant’s ability intelligently to exercise his rights, (d) The questioner had no reason to assume that truthful responses would be self-incriminating.

A review of a few of the leading cases should suffice to establish the point. 15 In United States v. Kordel, 397 U. S. 1 (1970), the Government submitted interrogatories to the defendant in a civil suit. Though the defendant (a corporate officer) was aware that the Government was planning to bring a criminal action against him, he answered the questions instead of asserting his privilege against self-incrimination. The Court ruled that his answers could be admitted in the ensuing prosecution. In so holding, the Court emphasized the facts that established law made clear that the defendant had a constitutional right to refuse to answer the interrogatories, that he was free to consult with counsel before responding, and that nothing in the circumstances under which the questions were presented impaired the defendant’s ability to appreciate the consequences of his actions. Id., at 7, 9-10 .

The defendant in Garner v. United States, 424 U. S. 648 (1976), was a professional gambler who made incriminating disclosures on his Form 1040 income tax returns. The Court held that he could be prosecuted partly on the basis of his admissions. Though the defendant’s constitutional right to refuse to provide the requested information was perhaps less clear and straightforward than the right of the usual defendant, the Court stressed that other factors rendered inexcusable his failure to learn and assert his entitlements. Thus, *454 the Court pointed out that the defendant was free to consult with a lawyer and could fill out the tax return at his leisure in an environment of his choosing. Id., at 658 . Moreover, every taxpayer is required to fill out a Form 1040; the Government, in imposing that duty, has no reason to assume that any given taxpayer’s responses will be self-incriminating. 16 Thus, the United States in Gamer could not be faulted for requesting the information that the defendant provided.

Finally, in United States v. Washington, 431 U. S. 181 (1977), the Court confirmed the proposition that a witness called to testify before a grand jury must claim the benefit of the privilege or forfeit it. 17 The Court acknowledged that “the grand jury room engenders an atmosphere conducive to truthtelling” and thus might have exerted some pressure on the defendant not to assert his rights. Id., at 187 . In addition, the Court recognized that the Government was not blameless insofar as a criminal investigation had focused on the defendant and thus the questioners had ample reason to believe that truthful answers by the defendant would be self-incriminating. 18 But, the Court reasoned, the situation con *455 tained other safeguards that warranted adherence to the principle that a privilege not asserted is lost. First, the defendant’s right to refuse to respond had be.en perfectly clear; indeed, at the outset of the proceeding, the defendant had been explicitly warned of his right not to answer questions if his responses might incriminate him. Id., at 186, 188 . 19 Second, not only had the defendant been afforded an opportunity before appearing to seek legal advice, but also, at the start of the hearing, he was told that a lawyer would be provided for him if he wished and could not afford one. Id., at 183-184 . Under those circumstances, the Court concluded that it was inconceivable that the defendant’s decision not to assert his privilege was uninformed or involuntary. 20

*456 By contrast, in cases in which only one of the statements enumerated above, see swpra, at 452-458, has been true, the Court has refused to adhere to the general rule that a privilege not claimed is lost, and instead has insisted upon a showing that the defendant made a knowing and intelligent decision to forgo his constitutional right not to incriminate himself. The classic situation of this sort is custodial interrogation. In Miranda v. Arizona, 384 U. S. 436 (1966), the Court acknowledged that the right of a suspect in police custody not to answer questions is well established. However, we stressed that other aspects of the situation impair the ability of the suspect to exercise his rights and threaten the values underlying the Fifth Amendment: the suspect is unable to consult with counsel regarding how he should respond to questions; the environment in which the questions are presented (the police station, from which the suspect is forbidden to leave) “work[s] to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely,” id., at 467 ; and the interrogators are well aware that truthful answers to their questions are likely to incriminate the suspect. In short, only one of the four circumstances favoring application of the general principle exist in the context of custodial interrogation. To mitigate the risk that suspects would ignorantly or involuntarily fail to claim their privilege against self-incrimination under these circumstances, the Court in Miranda imposed a requirement *457 that they be shown to have freely waived their rights after being fully apprised of them. Id., at 475-479 . 21

B

If we remain sensitive to the concerns implicit in the foregoing pattern of cases, we should insist that the State, in the instant case, demonstrate that Murphy intelligently waived his right to remain silent. None of the four conditions that favor application of the principle that a defendant forfeits his privilege if he fails to claim it before confessing can be found in the circumstances under which Murphy was interrogated. First, the existence and scope of Murphy’s constitutional right to refuse to testify were at best unclear when he ap *458 peared in the probation officer’s office. It is undisputed that the conditions of Murphy’s probation imposed on him a duty to answer all questions presented by his probation officer except those implicating his Fifth Amendment rights. 22 What exactly those rights were was far from apparent. The majority opinion in this case constitutes the first authoritative analysis of the privilege against self-incrimination available to a probationer. The ambiguity of scope of that privilege prior to today is suggested by the fact the Solicitor General, appearing for the United States as amicus curiae, seriously misconceived the rights that might have been asserted by Murphy when examined by his probation officer. 23 If, after being afforded substantial opportunity for research and reflection, the lawyers who represent the Nation err in their explication of the relevant constitutional principles, Murphy surely cannot be charged with knowledge of his entitlements. 24

*459 Second, contrary to the suggestion of the majority, ante, at 432, Murphy was given no warning that he would be asked potentially incriminating questions. The letter in which Murphy’s probation officer instructed him to make an appointment informed him that the purpose of the meeting was “[t]o further discuss a treatment plan for the remainder of [his] probation.” App. to Pet. for Cert. C-36. In view of the fact that Murphy remained under a legal obligation to attend treatment sessions, 25 there was no reason why he should have assumed from the letter that the officer planned to question him regarding prior criminal activity. 26 In short, prior to the moment he was asked whether he had committed the murder, Murphy had no reason to suspect that he would be obliged to respond to incriminating questions. He thus had no opportunity to consult a lawyer, or even to consider how he should proceed.

Third, the environment in which the questioning occurred impaired Murphy’s ability to recognize and claim his constitutional rights. It is true, as the majority points out, that the discussion between a probation officer and a probationer is likely to be less coercive and intimidating than a discussion between a police officer and a suspect in custody. Ante, at 433. But it is precisely in that fact that the danger lies. In contrast to the inherently adversarial relationship between a suspect and a policeman, the relationship between a probationer and the officer to whom he reports is likely to incorporate elements of confidentiality, even friendship. Indeed, many probation officers deliberately cultivate such bonds *460 with their charges. 27 The point should not be overstated; undoubtedly, few probationers are entirely blind to the fact that their probation officers are “peace officer[s], . . . allied, to a greater or lesser extent, with [their] fellow peace officers.” Fare v. Michael C., 442 U. S. 707, 720 (1979). On the other hand, many probationers develop “relationship[s] of trust and cooperation” with their officers. Id., at 722 . 28 Through abuse of that trust, a probation officer can elicit admissions from a probationer that the probationer would be unlikely to make to a hostile police interrogator.

The instant case aptly illustrates the danger. Before she sent her letter to Murphy asking him to make an appointment, the probation officer had decided to try to induce him to confess to the 1974 killing and to turn over that information to the police. She was aware that, if she were successful, Murphy would soon be arrested and tried for murder. 29 There was thus no prospect whatsoever that the information she elicited would be used to design a treatment program to be followed by Murphy during the remainder of his probation. Yet, in her letter, she described the purpose of the meeting as that of “discussing] a treatment plan.” When Murphy arrived at the meeting, she persisted in the deceit; instead of informing him at once what she intended to do with his anticipated confession to the 1974 murder, she told him *461 that “her main concern was to talk to him about the relationship of the prior crime and the one of which he was convicted and about his need for treatment under the circumstances.” 324 N. W. 2d 340, 341 (Minn. 1982). That Murphy succumbed to the deception is apparent from the sequence of his responses. Instead of denying responsibility for the 1974 killing, he admitted his guilt but sought to explain that extenuating circumstances accounted for that crime. Because those circumstances no longer existed, he argued, he had no need for further treatment. Only after Murphy had made his confession did the officer inform him of her intent to transmit that information to the police. In short, the environment in which the interview was conducted afforded the probation officer opportunities to reinforce and capitalize on Murphy’s ignorance that he had a right to refuse to answer incriminating questions, and the officer deliberately and effectively exploited those opportunities.

Finally, it is indisputable that the probation officer had reason to know that truthful responses to her questions would expose Murphy to criminal liability. This case does not arise out of a spontaneous confession to a routine question innocently asked by a government official. Rather, it originates in precisely the sort of situation the Fifth Amendment was designed to prevent — in which a government, instead of establishing a defendant’s guilt through independent investigation, seeks to induce him, against his will, to convict himself out of his own mouth.

In sum, none of the factors that, in most contexts, justify application of the principle that a defendant loses his Fifth Amendment privilege unless he claims it in a timely fashion are present in this case. Accordingly, the State should be obliged to demonstrate that Murphy knew of his constitutional rights and freely waived them. Because the State has made no such showing, I would hold his confession inadmissible.

*462 III

The criminal justice system contains safeguards that should minimize the damage done by the Court’s decision today. In the future, responsible criminal defense attorneys whose clients are given probation will inform those clients, in their final interviews, that they may disregard probation conditions insofar as those conditions are inconsistent with probationers’ Fifth Amendment rights. The attorneys will then carefully instruct their clients on the nuances of those rights as we have now explicated them. 30 Armed with this knowledge, few probationers will succumb to the sort of pressure and deceit that overwhelmed Murphy.

Because Murphy himself had the benefit of none of the safeguards just described, I would affirm the judgment of the Supreme Court of Minnesota that the admission into evidence of the disclosures he made to his probation officer violated the Constitution.

I respectfully dissent.

This is not to suggest that a State must or should organize its probation system in a fashion that compels probationers to respond under these circumstances, only that a State is not prevented by the Federal Constitution from doing so.

It makes no difference whether the criminal conduct that the probationer might reveal was committed before or after the crime for which he was convicted or before or after the conviction itself.

Justice Brennan and I remain persuaded that “the Fifth Amendment’s privilege against self-incrimination requires that any jurisdiction that compels a man to incriminate himself grant him absolute immunity under its laws from prosecution for any transaction revealed in that testimony.” Piccirillo v. New York, 400 U. S. 548, 562 (1971) (Brennan, J., joined by Marshall, J., dissenting). A majority of the Court, however, adheres to the view that the constitutional prohibition is not violated as long as the witness is accorded immunity against the use, in a criminal prosecution, of his testimony or the fruits thereof. See, e. g., Lefkowitz v. Turley, 414 U. S. 70, 84 (1973).

See Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671 , 708 (1968); Spevak v. Klein, 385 U. S. 511, 531 (1967) (White, J., dissenting).

Thus, in Lefkowitz v. Turley, supra, the Court described its prior decision in Gardner v. Broderick, 392 U. S. 273 (1968), in the following terms: “Although under Garrity any waiver executed may have been invalid and any answers elicited inadmissible in evidence, the State did not purport to recognize as much and instead attempted to coerce a waiver on the penalty of loss of employment.... Hence, the State’s statutory provision requiring [appellant’s] dismissal for his refusal to waive immunity could not stand.” 414 U. S., at 80-81 . In the same opinion, the Court acknowledged that the rule announced in Garrity itself remained good law. See 414 U. S., at 79-80, 82 . The Court today does not question the vitality of either the line of cases originating in Gardner or the line originating in Garrity .

Such proof would be especially difficult in cases in which the defendant has confessed to a serious crime, thereby subjecting himself to a penalty— in the form of protracted incarceration — far more severe than the penalty that the State threatened to impose if he refused to answer. Despite the implausibility, under such circumstances, of an allegation that the State’s threat induced the confession, we have never suggested that the defendant would be unable to avail himself of the doctrine enunciated in Garrity . Indeed, the situation presented in Garrity itself fits the scenario jüst described.

As Justice Harlan observed in dissent: “All of the petitioners consented to give statements, none displayed any significant hesitation, and none suggested that the decision to offer information was motivated by the possibility of discharge.” 385 U. S., at 505. The majority did not question Justice Harlan’s description of the case.

Cf. Escobedo v. Illinois, 378 U. S. 478, 499 (1964) (White, J., dissenting) (“If an accused is told he must answer and does not know better, it would be very doubtful that the resulting admissions could be used against him”).

A similar principle obtains in the Fourth Amendment context. It is well established that a “consent” to a search that consists of nothing more than submission to the “presumed authority” of a colorably valid search warrant is invalid. E. g., Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 329 (1979); Bumper v. North Carolina, 391 U. S. 543, 548-549 (1968).

The Solicitor General observes: “Citizens are often required to be truthful in their dealings with the government; any person commits a crime if, for example, he makes a false statement to a federal law enforcement officer in connection with a matter within the officer’s jurisdiction. 18 U. S. C. 1001.” Brief for United States as Amicus Curiae 19. It is precisely because such proscriptions on lying to government officials are so common that the emphatic injunction contained in Murphy’s probation conditions must be interpreted to impose on him more extensive obligations.

At the time Murphy made his confession, no Minnesota court had authoritatively interpreted either the probation condition at issue or the Minnesota statute from which it derives. Nor can a definitive construction of these crucial aspects of state law be found in the opinions of either the trial court or the Minnesota Supreme Court in this case. After cataloging the considerations on which it founded its ruling that Murphy’s confession was admissible, the trial court observed: “Against these factors is the fact that a condition of his probation was that he be honest with his probation officer, and that he was there ostensibly to discuss further treatment in regard to his current probation. Failure to follow through with either of these could have resulted in revocation of the probation and potential imprisonment.” App. to Pet. for Cert. B-14. The foregoing *448 passage suggests that the trial court assumed that Murphy was under a duty to answer all questions presented by his probation officer, but is too ambiguous to be fairly relied upon as an “interpretation” of the probation condition. Because the State Supreme Court held Murphy’s confession inadmissible for different reasons, it did not have occasion to decide whether a refusal to answer the questions asked by his probation officer would have exposed Murphy to revocation of his probation. The majority professes to be “hesitant,” “[w]ithout the benefit of an authoritative state-court construction of the condition,” to construe it to impose upon Murphy a duty to answer in addition to a duty not to lie. Ante, at 437. For the reasons indicated in the text, I do not share the majority’s hesitation; it seems to me clear that a reasonable man would have interpreted the letter to require him to answer all questions. But even if I agreed that the import of the crucial phrase is not apparent, I would object to the majority’s disposition of the case. The proper course would be to remand to the Minnesota Supreme Court to allow it to provide an “authoritative construction” of the provisions of state law around which the dispute revolves.

Even the critics of the line of cases forbidding use of statements made after a State threatened a witness with an economic sanction acknowledge that a State may not threaten to put a person in jail for refusing to answer questions. See Friendly, 37 U. Cin. L. Rev., at 676; Greenawalt, Silence as a Moral and Constitutional Right, 23 Wm. & Mary L. Rev. 15 , 66-68 (1981).

See, e. g., Garner v. United States, 424 U. S., at 655-656 .

It might be argued that no such general rule would be required to ensure that persons did not incriminate themselves without first making intelligent decisions to waive their constitutional rights. All that would be necessary would be a rule forbidding the State to make any use of a self-incriminating disclosure in a prosecution against its maker unless he had been reminded of his privilege before making the statement. The police (and other officials) would be free to ask questions without accompanying warnings. If a person questioned made damaging disclosures, the State could not use his statements against him, but the State would thereby be in no worse a position than if the questions had not been asked at all. The police would simply be obliged thereupon to conduct an independent inves *452 tigation, and to secure a conviction on the basis of “evidence independently and freely secured,” see Malloy v. Hogan, 378 U. S. 1, 8 (1964).

The response to the foregoing argument is that, in a situation of the sort just described, the State would indeed be in a significantly worse position than if the questions had not been asked. The reason is that, in a subsequent prosecution, the State would bear the burden of proving that it made no use whatever of the incriminating disclosures. See Kastigar v. United States, 406 U. S. 441, 460 (1972). The difficulty of sustaining that burden would often be such as wholly to frustrate prosecution. See Westen & Mandell, To Talk, To Balk, or To Lie: The Emerging Fifth Amendment Doctrine of the “Preferred Response,” 19 Am. Crim. L. Rev. 521 , 531-532 (1982). Desire to avoid such situations would induce government officials either to preface their questions with warnings or to refrain from asking them at all. The net effect would be to reduce the capacity of government to obtain needed information.

Cf. Schneckloth v. Bustamonte, 412 U. S. 218, 227-234, 242 (1973) (refusing, for similar reasons, to adopt a waiver standard for testing the voluntariness of consents to searches).

I do not renounce the views I expressed in concurrence or dissent in several of the eases discussed below. My purpose in canvassing the relevant decisions is simply to demonstrate that, even under the analysis adopted by the majorities in those cases, the result reached by the Court today is wrong.

Cf. United States v. Oliver, 505 F.2d 301, 306-308 (CA7 1974) (Stevens, J.) (distinguishing, for Fifth Amendment purposes, income reporting statutes “designed to procure incriminating disclosures from a select group of persons engaged in criminal conduct” and reporting statutes “applicable to the public at large, . . . [whose] demands for information are neutral in the sense that they apply evenly to the few who have illegal earnings and the many who do not”).

Prior to Washington , that proposition had frequently been advanced in dictum. See, e. g., United States v. Mandujano, 425 U. S. 564, 574-575 (1976) (dictum); Rogers v. United States, 340 U. S. 367, 370 (1951) (alternative holding); United States v. Monia, 317 U. S. 424, 427 (1943) (dictum).

Justice Brennan and I remain convinced that the fact that a criminal investigation has focused on a grand jury witness is sufficient to tip the constitutional balance in favor of a requirement that the prosecution prove that any damaging disclosures made by the witness were founded upon a knowing and intelligent waiver of the witness’ rights. See 431 U. S., at 191 (Brennan, J., joined by Marshall, J., dissenting); United States v. Mandujano, supra, at 596-602 (Brennan, J., joined by Marshall, J., *455 concurring in judgment). However, the argument advanced in the text does not depend upon that conviction.

The Court declined, however, to decide whether such warnings were constitutionally required. 431 U. S., at 186, 190 .

See also United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 113 (1927) (defendant who made incriminating disclosures when questioned by an immigration inspector deemed (in dictum) to have waived his privilege when his right to refuse to answer was clear, he had been given adequate notice of the sort of questions he would be asked, and he was represented by counsel at the hearing); United States v. Murdock, 284 U. S. 141, 148 (1931) (when defendant was summoned to appear before revenue agent, consulted with counsel just prior to the interview, and clearly had a right not to incriminate himself, his failure to invoke the Fifth Amendment as a justification for his refusal to answer resulted in a waiver of his privilege) (dictum); Beckwith v. United States, 425 U. S. 341 (1976) (incriminating disclosures made by taxpayer who was interviewed in his home and place of business by Internal Revenue agents after being reminded of his Fifth Amendment rights held admissible in a prosecution against him); Oregon v. Mathiason, 429 U. S. 492 (1977) (per curiam) (parolee’s confession to a police officer held admissible where parolee was not in custody at the time of the questioning, parolee had ample warning that he would be asked incriminating questions, and parolee was clearly entitled to refuse to respond); Roberts v. United States, 445 U. S. 552, 559 (1980) (in a case in which the Government had “no substantial reason to believe that the requested disclosures [were] likely to be incriminating,” and the defendant clearly had a right not to incriminate himself, the defendant’s *456 refusal to answer without asserting his privilege held properly used against him in the determination of his sentence).

The presence of two of the four safeguards likewise legitimates the settled principle that a citizen not in custody who is asked potentially incriminating questions by a police officer must claim the benefit of the Fifth Amendment instead of answering if he wishes to retain his privilege. Miranda v. Arizona, 384 U. S. 436, 477-478 (1966). Under such circumstances, not only does the citizen have a well-established right to refuse to answer, but also the environment is not such as to discourage or frustrate the assertion of his right. See id., at 478 .

A less well-known situation involving a similar paucity of safeguards against inadvertent or uninformed abandonment of constitutional rights is that presented in Smith v. United States, 337 U. S. 137 (1949), and Emspak v. United States, 349 U. S. 190 (1955). In each case, the defendant was summoned to testify before an official body, appeared, and early in the proceeding invoked his privilege against self-incrimination. Questioning continued (in one case under a grant of immunity, in the other on unrelated topics). Later in the proceeding, the defendant was asked whether he wished to claim the privilege with regard to a specific substantive question. In each case, three factors reduced the defendant’s ability, at that point, intelligently to exercise his constitutional rights and rendered the activities of his interrogators constitutionally suspect: the defendant’s right to refuse to answer the question at issue was unclear; the environment in which the questions were presented was moderately coercive; and the nature of the proceeding as well as the defendant’s prior assertion of his privilege against self-incrimination alerted the questioner to the likelihood that a truthful answer to the crucial question would expose the defendant to criminal liability. In both cases, the Court held that the defendant could be prosecuted on the basis of his answer to the decisive question only if the Government were able to demonstrate that he had made a sufficiently unequivocal and intelligent waiver of his Fifth Amendment rights to satisfy the standard enunciated in Johnson v. Zerbst, 304 U. S. 458, 464 (1938) (“an intentional relinquishment or abandonment of a known right or privilege”). In both instances, the Court concluded that the Government had failed to make such a showing, and therefore reversed the defendant’s conviction.

The majority construes Murphy’s probation conditions to impose on him a general duty to respond to questions, but to contain an exemption for questions that impinged upon his Fifth Amendment rights. Ante, at 436-437. The State of Minnesota, in its brief in this case, adopts the same interpretation. See Brief for Petitioner 36-38 (arguing that probationers in Minnesota are obliged to answer all questions asked by their probation officers except those to which they may assert “valid” claims of privilege). Though I find that construction implausible, see Part I, supra, I assume it for present purposes. The point made here is simply that, at the time Murphy was interrogated, the scope of his Fifth Amendment rights — and therefore the scope of the hypothesized exemption from the general duty to answer — was ambiguous.

The Solicitor General argued in the alternative that, “[w]hen a person has been convicted of a crime, his constitutional rights can be limited to the extent reasonably necessary to accommodate the government’s penal and rehabilitative interests,” and therefore that the government may constitutionally exert upon a probationer pressures to incriminate himself that it could not exert upon a citizen who had not been convicted of a crime. Brief for United States as Amicus Curiae 8; see id., at 27-32. That proposition is rejected by the Court today.

Cf. Maness v. Meyers, 419 U. S. 449, 466 (1975) (“A layman may not be aware of the precise scope, the nuances, and boundaries of his Fifth Amendment privilege”).

Contrary to the majority’s suggestion, ante, at 432, nothing in the record indicates that the probation officer had “excused” Murphy from the condition of probation that required him “to pursue . . . Alpha treatment,” App. to Pet. for Cert. C-35; the Minnesota Supreme Court found merely that she had agreed not to seek revocation of his probation because of his breach of that condition, see 324 N. W. 2d 340, 341 (1982).

Indeed, for reasons discussed infra, at 460, it appears that the letter was shrewdly designed to prevent Murphy from discerning in advance the true purpose of the meeting.

See A. Smith & L. Berlin, Introduction to Probation and Parole 116-119 (1979); Mangrum, The Humanity of Probation Officers, 36 Fed. Probation 47 (June 1972); Note, Observations on the Administration of Parole, 79 Yale L. J. 698, 704-708 (1970); People v. Parker, 82 App. Div. 2d 661, 667, 442 N. Y. S. 2d 803, 807 (1981), aff’d, 57 N. Y. 2d 815, 441 N. E. 2d 1118 (1982).

The relationship at issue in Fare was that between a probation officer and a juvenile probationer. But many of the Court’s observations can be extended to the relationship between an officer and an adult probationer. See n. 27, supra.

Indeed, when Murphy refused to turn himself in, it was his probation officer who secured the order for his arrest.

It is to be hoped, moreover, that persons currently on probation who are no longer represented by counsel will somehow be informed of the central principle established by the Court’s decision: that a probationer has a right to refuse to respond to a question the answer to which might expose him to criminal liability unless he is granted immunity from the use of his answer against him in a subsequent criminal prosecution.