Amicus Curiae Brief — Ethan Guillen, Petitioner v. United States

Supreme Court briefOct 27, 2021

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No. 21-5795

In the

Supreme Court of the United States

ETHAN GUILLEN,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Tenth Circuit

BRIEF OF CRIMINAL LAW AND PROCEDURE

PROFESSORS, AS AMICI CURIAE IN

SUPPORT OF PETITIONER

Professor Colin Miller

1525 Senate Street, Room 316

Columbia, SC 29208

(803) 777-3433

mille933@law.sc.edu

James C. Dugan

Counsel of Record

A lina Jamil Mian

Michelle Mlacker

Willkie Farr

& Gallagher LLP

787 Seventh Avenue

New York, NY 10019

(212) 728-8000

jdugan@willkie.com

Counsel for Amici Curiae

308164

i

TABLE OF CONTENTS

STATEMENT OF INTEREST OF AMICI

CURIAE.................................................................. 1

SUMMARY OF ARGUMENT ..................................... 9

ARGUMENT ............................................................. 10

I.

THIS CASE DEMONSTRATES THE

INAPPLICABILITY OF THE MARKS

PRINCIPLE TO SEIBERT WHERE

THERE

IS

NO

COMMON

DENOMINATOR BETWEEN THE

RATIONALE OF THE PLURALITY

AND CONCURRING OPINION. ............... 10

A.

The Seibert Ruling Resulted in No

Clear Consensus. ..................................... 11

B.

Justice Kennedy’s Concurrence

Does Not Provide the Narrowest

Grounds for the Decision. ........................ 12

II.

COURTS

ADOPTING

JUSTICE

KENNEDY’S

SEIBERT

CONCURRENCE RUN AFOUL OF

THIS

COURT’S

WELLESTABLISHED

MIRANDA

PRECEDENT. ............................................. 17

A.

Under This Court’s Miranda

Precedent, an Officer’s Subjective

Intent Should Not Be OutcomeDeterminative. ......................................... 18

B.

Courts Routinely Credit an Officer’s

Statements Regarding Subjective

Intent Over Objective Evidence of a

Miranda Violation. .................................. 20

ii

III.

THE HYBRID APPLICATION OF

THE SEIBERT PLURALITY AND

JUSTICE

KENNEDY’S

CONCURRENCE

FURTHER

ERODES

KEY

MIRANDA

PROTECTIONS. ......................................... 21

IV.

IN DECIDING WHETHER TO

GRANT CERTIORARI, THIS COURT

SHOULD

CONSIDER

THE

ALARMINGLY HIGH PERCENTAGE

OF

PEOPLE,

PARTICULARLY

YOUNG ADULTS, WHO ARE

SUSCEPTIBLE

TO

COERCIVE

INTERROGATION

TECHNIQUES

AND FALSELY CONFESS. ....................... 25

A.

Modern Police Interrogations Result

in High Rates of False Confessions. ....... 26

B.

Teenagers Falsely Confess at

Higher Rates Due to Their Age and

Susceptibility. .......................................... 28

C.

False Confessions Carry a Heavy

Biasing Effect........................................... 30

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Berkemer v. McCarty,

468 U.S. 420 (1984) .............................................. 18

Commonwealth v. Selby,

420 Mass. 656 (Mass. 2004) ................................. 27

Corley v. United States,

556 U.S. 303 (2009) .............................................. 26

Dickerson v. United States,

530 U.S. 428 (2000) ........................................ 20, 26

Edwards v. United States,

923 A.2d 840 (D.C. 2007) ......................... 13, 14, 23

Fernandez v. Lee,

No. 10 Civ. 9011(ALC) (JCF), 2012

WL 4473294 (S.D.N.Y., July 12,

2012) ............................................................... 15, 16

Frazier v. Cupp,

394 U.S. 731 (1969) .............................................. 27

Lornitis v. State,

394 So. 2d 455 (Fla. Dist. Ct. App.

1981) ..................................................................... 19

Marks v. United States,

430 U.S. 188 (1977) ...................................... passim

Miranda v. Arizona,

384 U.S. 436 (1966) ...................................... passim

iv

Missouri v. Seibert,

542 U.S. 600 (2004) ...................................... passim

Morse v. Nevada Attorney General,

687 F. App’x 662 (9th Cir. 2017) ................... 15, 16

Morse v. Nevada,

No. 55271, 2011 WL 2748846 (Nev.,

July 14, 2011) ................................................. 15, 16

Neri v. Hornbreak,

550 F.Supp.2d. 1143 (C.D. Cal. 2008) ........... 20, 21

New York v. Quarles,

467 U.S. 649 (1984) ........................................ 18, 19

People v. Verigan,

488 P.3d 75 (Colo. App. 2015) .............................. 17

Ramirez-Marentes v. Ryan,

No. SACV-05,551 GHK (CW), 2010

WL 2902524 (C.D. Cal. 2010) .............................. 21

Reyes v. Lewis,

833 F.3d 1001 (9th Cir. 2016) ........................ 17, 23

Rhode Island v. Innis,

446 U.S. 291 (1980) ........................................ 19, 20

State v. Fleurie,

968 A.2d 326 (Vt. 2008) ................................. 20, 21

State v. Martinez,

No. 1 CA-CR 13-0107, 2014 WL

5342708 (Ariz. App., Oct. 21, 2014). .................... 22

v

State v. Medley,

787 S.E.2d 847 (S.C. Ct. App. 2016) .................... 15

United States v. Capers,

627 F.3d 470 (2nd Cir. 2010) ......................... 13, 20

United States v. Courtney,

463 F.3d 333 (5th Cir. 2006) .......................... 13, 24

United States v. Guillen,

995 F.3d 1095 (10th Cir. 2021) ........................... 13

United States v. Guillen,

No. 17-CR-1723 (WJ), 2018 WL

2075457 (D.N.M.), (D.N.M. May 3,

2018) ..................................................................... 18

United States v. Heron,

564 F.3d 779 (7th Cir. 2009)……...... ................... 23

United States v. Lawton,

216 F.Supp.3d 1281 (D. Kan. 2016) .................... 15

United States v. Naranjo,

426 F.3d 221 (3d Cir. 2005) ........................... 13, 18

United States v. Nuñez,

478 F.3d 663 (5th Cir. 2007) ................................ 24

United States v. Price,

No. 04-40035-SAC, 2004 WL

2457858 (D. Kan., Oct. 22, 2004) ......................... 16

United States v. Stewart,

191 F. App’x 495 (7th Cir. 2006) ......................... 23

vi

United States v. Stewart,

388 F.3d 1079 (7th Cir. 2004) .............................. 23

United States v. Stewart,

536 F.3d 714 (7th Cir. 2008) .......................... 18, 23

United States v. Street,

472 F.3d 1298 (11th Cir. 2006) ............................ 13

United States v. Torres-Lona,

491 F.3d 750 (8th Cir. 2007) ................................ 13

United States v. Williams,

435 F.3d 1148 (9th Cir. 2006) ........................ 12, 13

United States v. Williams,

681 F.3d 35 (2nd Cir. 2012) ................................. 20

Statues

U.S. Const. amend. V.. ........................................ 19, 25

Other Authorities

Brandon Garrett, Contaminated

Confessions Revisited, 101 VA. L.

REV. 395 (2014) .............................................. 26, 29

Brandon Garrett, The Substance of

False Confessions, 62 STAN. L. REV.

1051 (2010) ........................................................... 28

David Coffey, Why do people confess to

crimes they didn’t commit?,

Livescience (2020),

https://www.livescience.com/whypeople-fasely-confess-to-crimes.html ............ 27, 28

vii

Grisso, T., Steinberg, L., Woolard, J. et

al., Juveniles' Competence to Stand

Trial: A Comparison of Adolescents'

and Adults' Capacities as Trial

Defendants, 27 LAW HUMAN

BEHAVIOR 333 (2003) ........................................ 29

Jason Mandelbaum and Angela

Crossman, No illusions:

Developmental considerations in

adolescent false confessions, CYF

News (2004) .......................................................... 28

Leading Police Consulting Group Will

No Longer Teach the Reid Technique,

Innocence Project (2017),

https://innocenceproject.org/policeconsultants-drop-reid-technique/ ........................ 27

Locke Houston, Miranda-in-the-Middle:

Why Justice Kennedy’s Subjective

Intent of the Officer Test in Missouri

v. Seibert is Binding and Good

Public Policy, 82 MISSISSIPPI LAW

JOURNAL 1129, 1146-50 (2013) ................... 23, 24

Maurice Possley, Martin Tankleff, The

National Registry of Exonerations

(2020),

https://www.law.umich.edu/special/e

xoneration/Pages/casedetail.aspx?cas

eid=3675 ............................................................... 30

National Registry of Exonerations,

https://www.law.umich.edu/special/e

xoneration/Pages/about.aspx ............................... 28

viii

Oberlander, L. B., & Goldstein, N. E., A

review and update on the practice of

evaluating Miranda comprehension,

19 (4) BEHAVIORAL SCIENCES &

THE LAW 453 (2001)........................................... 29

Saul M. Kassin, et al., Police-Induced

Confessions: Risk Factors and

Recommendations, 34 J. LAW &

HUMAN BEHAVIOR 7, 14 (2010). ......... 26, 27, 31

Saul M. Kassin, False Confessions:

Causes, Consequences, and

Implications for Reform, 1 SAGE J.

112 (2014) ............................................................ 25

Saul M. Kassin, Why Confessions

Trump Innocence, 67 AM.

PSYCHOL. 431 (2012) ......................................... 31

Steven A. Drizin & Richard A. Leo, The

Problem of False Confessions in the

Post-DNA World, 82 N.C. L. REV.

891 (2004) ....................................................... 26, 31

Viljoen, J. L., Klaver, J., & Roesch, R.,

Legal Decisions of Preadolescent and

Adolescent Defendants: Predictors of

Confessions, Pleas, Communication

with Attorneys, and Appeals, Law

and Human Behavior, 29(3), 253

(2005) .................................................................... 28

ix

Why are Youth Susceptible to False

Confessions?, Innocence Project

(2015),

https://innocenceproject.org/why-areyouth-susceptible-to-falseconfessions/ ..................................................... 29, 30

1

STATEMENT OF INTEREST OF AMICI

CURIAE1

Amici curiae are fifty-eight law professors and

scholars at U.S. law schools who teach, research, and

write about criminal law and criminal procedure.

They share a common interest in ensuring a proper,

practical application of this Court’s precedent

stemming from Miranda v. Arizona.

Colin Miller

Professor of Law

University of South Carolina School of Law

Deborah Aherns

Associate Professor of Law

Seattle University School of Law

Maryam Ahranjani

Don L. & Mabel F. Dickason Professor

University of New Mexico School of Law

Peter Arnella

Professor of Law Emeritus

UCLA School of Law

1 All parties were provided proper notice and have consented to

the filing of this brief pursuant to the Court’s Rule 37.2(a).

Pursuant to the Court’s Rule 37.6, we note that no part of this

brief was authored by counsel for any party, and no person or

entity other than amici or their members made any monetary

contribution to the preparation or submission of this brief.

2

Shima Baradaran Baughman

Associate Dean of Research and Faculty

Development

University of Utah S.J. Quinney College of

Law

Lara Bazelon

Professor of Law and Director

Criminal & Juvenile Justice and Racial

Justice Clinic

University of San Francisco School of Law

Valena Beety

Professor of Law and Deputy Director

Academy for Justice

Arizona State University Sandra Day

O’Connor College of Law

John Blume

Samuel F. Leibowitz Professor of Trial

Techniques

Cornell Law School

Michal Buchhandler-Raphael

Assistant Professor of Law

Widener Commonwealth Law School

John Burkoff

Professor Emeritus of Law

University of Pittsburgh School of Law

Geoffrey Corn

Gary A. Kuiper Distinguished Professor

National Security Law

South Texas College of Law Houston

3

Russell Covey

Professor of Law

Georgia State University College of Law

Steven Duke

Professor Emeritus of Law

Yale Law School

Jules Epstein

Edward D. Ohlbaum Professor of Law

Temple University Beasley School of Law

Marc Falkoff

Professor of Law & Interim Associate Dean

for Academic Affairs

Northern Illinois University College of Law

Ian P. Farrell

Associate Professor of Law

University of Denver Sturm College of Law

Brian Gallini

Dean and Professor of Law

Willamette University College of Law

Norman Garland

Professor of Law

Southwestern Law School

Brandon Garrett

L. Neil Williams, Jr. Professor of Law

Duke University School of Law

4

Michael Gentithes

Associate Professor

University of Akron School of Law

Cynthia Godsoe

Professor of Law

Brooklyn Law School

Bruce Green

Louis Stein Chair of Law; Director, Stein

Center

Fordham University School of Law

Catherine Grosso

Professor of Law

Michigan State University College of Law

Alexis J. Hoag

Assistant Professor of Law

Brooklyn Law School

Thaddeus Hoffmeister

Professor of Law

University of Dayton School of Law

Andrew Horwitz

Assistant Dean for Experiential Education

Roger Williams University School of Law

David Jaros

Professor

University of Baltimore School of Law

5

Lewis Katz

John C. Hutchins Professor Emeritus of

Law

Case Western University School of Law

Kit Kinports

Professor of Law

Penn State Law

Dan Kobil

Professor of Law

Capital University Law School

Richard Leo

Hamill Family Professor of Law and

Psychology

University of San Francisco School of Law

Ken Levy

Holt B. Harrison Professor of Law

Paul M. Hebert Law Center

Louisiana State University

Katherine Macfarlane

Associate Professor of Law

Southern University Law Center

Justin Marceau

Professor of Law

University of Denver Sturm College of

Law

6

M. Isabel Medina

Ferris Distinguished Professor of Law

Loyola University New Orleans College of

Law

Daniel Medwed

University Distinguished Professor of Law

and Criminal Justice

Northeastern University School of Law

Michael Meltsner

Matthews Distinguished University

Professor of Law

Northeastern University School of Law

Rachel Moran

Associate Professor of Law

University of St. Thomas School of Law

Jerry Norton

Professor Emeritus

Loyola University Chicago School of Law

Anna Offit

Assistant Professor of Law

SMU Dedman School of Law

Timothy O’Neill

Professor Emeritus of Law

University of Illinois Chicago School of Law

Leroy Purnell

Professor of Law

Florida A&M University College of Law

7

William Quigley

Emeritus Professor of Law

Loyola University New Orleans College of

Law

Deborah Ramirez

Professor of Law and Faculty Co-Director

Center for Law, Equity and Race

Northeastern University School of Law

Itay Ravid

Assistant Professor of Law

Villanova University, Charles Widger

School of Law

L. Song Richardson

President

Colorado College

Ira P. Robbins

Professor of Law and Justice

American University Washington College of

Law

Josephine Ross

Professor of Law

Howard University School of Law

David Rudovsky

Senior Fellow

University of Pennsylvania Carey School of

Law

8

Jonathan Simon

Lance Robbins Professor of Criminal Justice

Law

University of California, Berkeley, School of

Law

Dean A. Strang

Distinguished Professor in Residence

Loyola University Chicago School of Law

Patrice Amandla Sulton

Professorial Lecturer in Law

George Washington University Law

School

Katharine Tinto

Clinical Professor of Law

University of California, Irvine School of

Law

Rodney Uphoff

Elwood L. Thomas Missouri Endowed

Professor Emeritus of Law

University of Missouri School of Law

Rebecca Wexler

Assistant Professor of Law

University of California, Berkeley, School of

Law

Kenneth Williams

Professor of Law

South Texas College of Law Houston

9

Michael A. Wolff

Professor Emeritus

Saint Louis University School of Law

Ellen Yaroshefsky

Associate Dean for Research and Faculty

Development

Hofstra University Maurice Deane School of

Law

SUMMARY OF ARGUMENT

Since 2004, this Court’s plurality decision in

Missouri v. Seibert, 542 U.S. 600 (2004) has been

subject to widely conflicting interpretations.

A

number of lower courts, claiming to follow Marks v.

United States, 430 U.S. 188 (1977), have applied

Justice Kennedy’s concurrence, and the subjective

test set forth therein, on the mistaken premise that it

is the narrowest ground supporting the Seibert

holding, even though it is the opinion of only a single

Justice. Other courts, grappling with the lack of a

common denominator between the Seibert plurality

opinion and Justice Kennedy’s concurrence, have

chosen to apply the objective test adopted by the

plurality. Other courts have adopted a hybrid test

consisting of elements of both opinions.

The lack of any uniform rule governing the

admissibility of post-Miranda confessions has

resulted in disparate and inequitable treatment for

criminal defendants like Ethan Guillen, who, for

whatever reason, make incriminatory statements

prior to receiving a Miranda warning. In the absence

of clear guidance, the protections afforded by

10

Miranda’s warning requirements have been eroded.

This Court should therefore grant the petition for

certiorari to clarify the proper test that should apply

to guard against the admission of tainted confession

evidence.

Vigorous Miranda protections are particularly

important for adolescents such as 18-year-old Ethan

Guillen. A growing body of research has illuminated

an unacceptably high rate of false confessions among

teenage criminal defendants, who are especially

vulnerable to coercive, if not illegal, interrogation

techniques. Where a false confession has been

admitted into evidence, no amount of recanting or

scientifically sound exculpatory evidence can

guarantee a fair trial. And even where a confession

cannot be shown to be false, confession evidence

carries a heavy biasing effect that colors the minds of

investigators and juries alike.

ARGUMENT

I.

THIS CASE DEMONSTRATES THE

INAPPLICABILITY OF THE MARKS

PRINCIPLE

TO

SEIBERT

WHERE

THERE IS NO COMMON DENOMINATOR

BETWEEN THE RATIONALE OF THE

PLURALITY

AND

CONCURRING

OPINION.

In Marks, this Court articulated a standard for

lower courts to follow when assessing the precedential

effect of a plurality opinion–namely, that the holding

of a plurality decision should “be viewed as th[e]

11

position taken by those [m]embers who concurred in

the judgment on the narrowest grounds.”2

However, Seibert illustrates the limits of Marks’

principle. Courts interpreting Seibert under the

Marks principle have been unable to agree on which

opinion represents the narrowest grounds supporting

the decision of those who concurred in the judgment,

leading to a split among the lower courts as to the

precedent established by Seibert.

A.

The Seibert Ruling Resulted in No Clear

Consensus.

The Seibert court found in favor of the appelleedefendant through the judgment of five justices: a

four-member plurality and Justice Kennedy’s solo

concurrence.

There, defendant challenged the

admissibility of her post-Miranda statements where

she confessed, received Miranda warnings, and again

repeated her confession.3 The Seibert plurality held

that, for any two-stage interview, the sufficiency of

Miranda warnings hinged upon five factors: “the

completeness and detail of the questions and answers

in the first round of interrogation, the overlapping

content of the two statements, the timing and setting

of the first and the second, the continuity of police

personnel, and the degree to which the interrogator’s

questions treated the second round as continuous with

the first.”4

2 Marks v. United States, 430 U.S. 188, 193 (1977).

3 Missouri v. Seibert, 542 U.S. 600, 604-06 (2004).

4 Id. at 615.

12

Concurring only in the judgment, Justice Kennedy

found that, in a two-stage interrogation, the

admissibility of the post-Miranda warning should not

hinge upon an “objective inquiry from the perspective

of the suspect,” as the plurality concluded.5 Rather,

admissibility of the post-warning statement should

depend upon whether an officer intentionally

withheld Miranda warnings to undermine the

protection’s efficacy.6 When there is a finding that the

officer intentionally delayed a Miranda warning, postwarning statements must be excluded under Miranda

unless the police took “specific, curative steps,” such

as: (1) “a substantial break in time and circumstances

between the prewarning statement and the Miranda

warning;” and (2) “an additional warning that

explains the likely inadmissibility of the prewarning

custodial statement.”7

In determining whether

officers employed a deliberate two-step strategy to

circumvent Miranda, courts consider evidence of the

officer’s subjective state of mind, such as the officer’s

testimony.8

B.

Justice Kennedy’s Concurrence Does Not

Provide the Narrowest Grounds for the

Decision.

Select appellate courts, including the Tenth Circuit

in Guillen, have applied the Marks principle to Seibert

to conclude that Justice Kennedy’s concurrence is the

5 Id. at 621-22 (Kennedy, J. concurring).

6 Id.

7 Id. at 622.

8 See, e.g., United States v. Williams, 435 F.3d 1148, 1158 (9th

Cir. 2006).

13

controlling opinion.9 Under Marks, where “no single

rationale explaining the result enjoys the assent of

five Justices,” the holding of the Court “may be viewed

as that position taken by those Members who

concurred in the judgments on the narrowest

grounds.”10

The Tenth Circuit applied Marks and concluded that

Justice Kennedy’s concurrence fit within the Seibert

plurality ruling on the admissibility of confessions

following midstream Miranda warnings.11

Though Justice Kennedy’s concurrence is narrower

than the plurality opinion in some respects, his

opinion is also broader in other, critical

circumstances.12

Justice Kennedy’s concurrence narrows the Seibert

plurality in instances where police officers do not use

9 E.g., United States v. Guillen, 995 F.3d 1095, 1125 (10th Cir.

2021)(“[t]here is a coherent way to apply Marks here, which no

doubt explains why most courts have reached the same

conclusion: Justice Kennedy’s concurrence in Seibert is the

controlling opinion from that case.”); United States v. Capers, 627

F.3d 470, 476 (2nd Cir. 2010); United States v. Street, 472 F.3d

1298, 1313 (11th Cir. 2006); United States v. Courtney, 463 F.3d

333, 338 (5th Cir. 2006); Williams, 435 F.3d at 1158; United

States v. Naranjo, 426 F.3d 221, 231 (3d Cir. 2005); United States

v. Torres-Lona, 491 F.3d 750, 758 (8th Cir. 2007).

10 Marks, 430 U.S. at 193 (internal quotation marks omitted).

11 Guillen, 995 F.3d. at 1119.

12 See, e.g., Edwards v. United States, 923 A.2d 840, 848, n.10,

n.02-CE-1068 (D.C. 2007) (“As the government points out,

Justice Kennedy’s test is narrower than the plurality’s in that it

would only apply to the deliberate use of a two-step procedure,

but, within that subset of cases, it is broader in that it would not

allow admission of a suspect’s statements unless curative steps

were taken even if a court determined that the Miranda

warnings could function effectively.”).

14

a deliberate two-step interrogation strategy.13

Imagine a scenario where a suspect produces a

detailed confession while seated in a police station

and the questioning officer fails to appreciate that the

suspect is in fact in custody. The officer then

Mirandizes the suspect and elicits a substantially

similar confession post-Miranda.

Given the significant overlap of the two rounds of

interrogation, the continuous nature of the

questioning, the continuity of police personnel, and

the extent to which the second round of interrogation

followed the first, the suspect’s confession would

almost certainly be inadmissible.14 Meanwhile, under

Justice Kennedy’s concurrence, the confession would

be admissible because the officer did not use a

deliberate two-step interrogation strategy.15

But Justice Kennedy’s concurrence is broader than

the Seibert plurality in cases where police officers use

a deliberate two-step interrogation strategy.16 Justice

Kennedy found that post-warning statements “related

to the substance of prewarning statements must be

excluded absent specific, curative steps” where police

officers use a deliberate two-step interrogation

strategy.17 On the other hand, under the Seibert

plurality, such post-warning statements can be

admissible even without specific, curative steps.18 A

13 See id.

14 See Seibert, 542 U.S. at 616.

15 See Seibert, 542 U.S. at 620 (Kennedy, J., concurring) (“An

officer may not realize that a suspect is in custody and warnings

are required.”).

16 See Edwards, 923 A.2d at 848.

17 See Seibert, 542 U.S. at 621.

18 See id.

15

hypothetical is again instructive here: assume that a

police officer questions a suspect – first outside and

then inside his home. Using a deliberate two-step

interrogation strategy, the officer asks an open-ended

question, obtains a general confession, Mirandizes the

suspect, and then elicits a detailed confession. The

suspect’s second confession would be inadmissible

under Justice Kennedy’s concurring opinion because

the officer did not take any “specific, curative steps.”19

However, the same post-warning confession, under

the Seibert plurality, would likely be admitted where

the questions and answers in the first round of

interrogation were neither complete nor detailed, the

two confessions did not feature much overlap, and

though there was a change in the setting of the

interrogations, neither of which took place at a police

station.20

The disparate application of the Seibert plurality

and Justice Kennedy’s concurrence is not merely

academic conjecture.21 This exact scenario has been

borne out in Morse v. Nevada.22 In that case, the

Supreme Court of Nevada deemed a post-warning

admission following an earlier, pre-warning

statement admissible without citing to Justice

Kennedy’s

concurrence

or

addressing

“the

23

deliberateness question it poses.” The Morse court

19 See id.

20 See id. at 616.

21 See Morse v. Nevada Attorney General, 687 F. App’x 662, 663

(9th Cir. 2017).

22 Morse v. Nevada, No. 55271, 2011 WL 2748846 (Nev., July 14,

2011).

23 Morse, 687 F. App’x at 663; see also State v. Medley, 787 S.E.2d

847, 852-53 (S.C. Ct. App. 2016); United States v. Lawton, 216 F.

Supp. 3d 1281, 1294-95 (D. Kan. 2016); Fernandez v. Lee, No. 10

16

deemed the Miranda warnings preceding the

interview effective under the Seibert plurality where

the “discussion in the vehicle was informal,

conversational, and frequently veered away from the

topic of [Defendant’s] ‘mistake’” and where, “[u]pon

entering the more formal setting of the interview

room, [Defendant] would have faced a genuine choice

about whether to continue speaking.”24 In upholding

the denial of defendant’s habeas petition, the Ninth

Circuit held that the Supreme Court of Nevada’s

opinion was not an unreasonable application of the

Seibert plurality.25 The Ninth Circuit added that if it

were reviewing the case de novo under Justice

Kennedy’s concurrence, it “might well have” deemed

the post-warning statement inadmissible because the

officer employed neither of the curative measures

identified by Justice Kennedy.26 Specifically, the

Ninth Circuit noted that it “might well have concluded

that the ‘break in time and circumstances between the

prewarning statement and the Miranda warning,’ was

insufficient to ensure that [Defendant] could

‘distinguish the two contexts and appreciate that the

interrogation ha[d] taken a new turn.’”27 The Ninth

Circuit likewise determined that at no point did the

detective “warn [Defendant] that his statements in

the police car were likely inadmissible.”28

Civ. 9011(ALC) (JCF), 2012 WL 4473294, at *11 (S.D.N.Y., July

12, 2012); United States v. Price, No. 04-40035-SAC, 2004 WL

2457858, at *4-*5 (D. Kan., Oct. 22, 2004).

24 Morse, 2011 WL 2748846, at *2.

25 See id.

26 Morse, 687 F. App’x at 664.

27 Seibert, 542 U.S. at 622.

28 See id.

17

Blanket application of the Marks principle to Seibert

creates the illogical result where certain post-warning

statements that may be admissible under the Seibert

plurality could be inadmissible under Justice

Kennedy’s concurrence.

Yet some post-warning

statements that could be admissible under Justice

Kennedy’s concurrence may be inadmissible under

the Seibert plurality.29

II.

COURTS

ADOPTING

JUSTICE

KENNEDY’S SEIBERT CONCURRENCE

RUN AFOUL OF THIS COURT’S WELLESTABLISHED MIRANDA PRECEDENT.

This Court’s long-established precedent in Miranda

and Justice Kennedy’s Seibert concurrence are

In Miranda, this Court

profoundly at odds.30

established that “a [Miranda] warning is a clearcut

fact . . . [designed] to insure that the individual knows

he is free to exercise the privilege [against self-

29 See, e.g., Reyes v. Lewis, 833 F.3d 1001, 1008-09 (9th Cir. 2016)

(Callahan, J., dissenting) (“There are likely to be cases involving

deliberate Miranda violations where most of the plurality’s

‘effectiveness factors’ are met but, because no explanation of the

prewarning statement's inadmissibility or other ‘specific,

curative step’ was taken, Justice Kennedy’s curative measures

requirement isn’t.”); People v. Verigan, 488 P.3d 75, 82 (Colo.

App. 2015), aff’d on other grounds, 420 P.3d 247 (Colo. 2018)

(“Because, no matter the facts of a given case, the four-justice

plurality and Justice Kennedy would apply wholly different

rules, neither the plurality’s five-factor test, nor Justice

Kennedy’s rule, nor any part of either, enjoyed the assent of five

justices.”).

30 See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); Seibert, 542

U.S. 600.

18

incrimination].”31

The Miranda requirement is

measured objectively and the “proper inquiry [is]

whether a reasonable person in the suspect’s position

would have understood his situation as the functional

equivalent of formal arrest.”32 Lower courts applying

Justice Kennedy’s Seibert concurrence have

improperly held that an officer’s subjective intent can

be outcome determinative when assessing whether a

deliberate violation of Miranda has occurred in a

question-first interrogation.33

A.

Under This Court’s Miranda Precedent,

an Officer’s Subjective Intent Should Not

Be Outcome-Determinative.

This Court’s persistent findings that an officer’s

subjective intentions should not determine whether

an individual’s Miranda rights have been violated are

31 See Miranda, 384 U.S. at 469.

32 See United States v. Guillen, No. 17-CR-1723 (WJ), 2018 WL

2075457 (D.N.M.), *11 (D.N.M. May 3, 2018) (citing Berkemer v.

McCarty, 468 U.S. 420, 442 (1984)).

33 See United States v. Stewart, 536 F.3d 714, 720 (7th Cir. 2008)

(affirming district court finding that officer’s subjective intent

evidenced no deliberate attempt to circumvent Miranda

notwithstanding officer’s admission that he should have given

Miranda warnings earlier but chose not to); Naranjo, 223 F.

App’x at 168-69 (affirming district court finding that officer did

not deliberately delay Miranda warnings because the officer

testified that he believed Miranda warnings were not required

until the suspect was under arrest, even though the officer had

handcuffed and interrogated the suspect at length).

19

in direct conflict with Justice Kennedy’s subjectivebased deliberateness test in Seibert.34

In Rhode Island v. Innis, this Court concluded that

any words or actions that the police should know

would be reasonably likely to elicit incriminating

responses would be analyzed by focusing primarily

upon the perceptions of the suspect, rather than the

intent of the police.35 This Court reasoned that “[t]his

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.”36 In Lornitis v. State,

the district court noted that “[w]hile Innis recognizes

that the officer’s subjective intent may tend to prove

the objective effect of his words or actions, the

prescribed inquiry is whether the officer should have

known that his words or actions were ‘reasonably

likely to elicit incriminating responses.’”37

The subversion of Miranda and its progeny carries

illogical consequences for Ethan Guillen and countless

others similarly situated.

This Court clearly

delineated the boundaries for establishing when

police conduct violates an individual’s Fifth

34 See, e.g., Rhode Island v. Innis, 446 U.S. 291 (1980); Lornitis

v. State, 394 So. 2d 455, 458 (Fla. Dist. Ct. App. 1981); New York

v. Quarles, 467 U.S. 649, 655-56 (1984).

35 Innis, 446 U.S. at 301.

36 Id.

37 Lornitis, 394 So. 2d at 458; see also Quarles, 467 U.S. at 65556 (“[T]he application of the [public safety] exception [to Miranda

warnings] . . . should not . . . depend on post hoc findings at a

suppression hearing concerning the subjective motivation of the

arresting officer.”).

20

Amendment right against self-incrimination.38 Yet

Justice Kennedy’s concurrence in Seibert has muddled

these boundaries by focusing the analysis on an

intent-based test that unduly favors an officer’s

subjective belief.

B.

Courts Routinely Credit an Officer’s

Statements Regarding Subjective Intent

Over Objective Evidence of a Miranda

Violation.

Most courts have held that both objective and

subjective evidence should inform whether an officer

engaged in a deliberate two-step interrogation

strategy.39 However, in weighing objective evidence

against subjective intent, courts have credited officers’

testimony regarding their subjective intent to conform

with Miranda requirements even where the “objective

factors considered by the Court [] tend[ed] to weigh in

favor of a finding of ‘deliberateness.’”40 In Neri v.

Hornbreak, the California Central District admitted

post-warning statements based on the officers’

subjective intent even though the officers transported

38 See, e.g., Miranda, 384 U.S. at 436; Dickerson v. United States,

530 U.S. 428 (2000); Innis, 446 U.S. at 291; Quarles, 467 U.S. at

655-56.

39 See, e.g., United States v. Williams, 681 F.3d 35, 41 (2nd Cir.

2012); Capers, 627 F.3d at 482.

40 Neri v. Hornbreak, 550 F. Supp. 2d. 1143, 1162 (C.D. Cal.

2008); see State v. Fleurie, 968 A.2d 326, 333 (Vt. 2008)

(admitting defendant’s post-warning statements because it was

not “clear that the officers intended to undermine the efficacy of

Miranda warnings” notwithstanding the court’s finding that “the

initial unwarned custodia[n] interrogation was no mere

oversight or good-faith mistake.”).

21

the suspect to the police station, held her for seven

hours and interrogated her for an additional hour and

a half.41 Even more, once the officers secured a prewarning confession, they finally issued the Miranda

warning and, within minutes, asked the suspect to

repeat her pre-warning statements.42

In Ramirez-Marentes v. Ryan, the California district

court refused to find an intentional subversion of

Miranda where officers conducted a three-hour

interrogation

and

“pressed”

defendant

for

incriminating information.43 If courts continue their

overreliance on an officer’s subjective testimony,

lower courts are unlikely to recognize subversions of

Miranda unless an officer explicitly testifies to doing

so.44

III.

THE HYBRID APPLICATION OF THE

SEIBERT PLURALITY AND JUSTICE

KENNEDY’S CONCURRENCE FURTHER

ERODES KEY MIRANDA PROTECTIONS.

Lower courts’ hybrid application of the Seibert

plurality and Justice Kennedy’s concurrence have

worsened already disparate suppression outcomes for

defendants and created an uncertain set of standards

for law enforcement officers.

The incongruous application of the Seibert decisions

has allowed rules governing interrogations and

41 Hornbreak, 550 F. Supp. 2d. at 1161.

42 Id.

43 Ramirez-Marentes v. Ryan, No. SACV-05,551 GHK (CW), 2010

WL 2902524, at *5-6, 20 (C.D. Cal. 2010).

44 Fleurie, 968 A.2d at 333 (citing Seibert, 542 U.S. at 605-06); see

also, Hornbeak, 550 F. Supp. 2d at 1162.

22

criminal convictions to turn on geographical

boundaries. In State v. Martinez, the Arizona Court

of Appeals applied a composite test consisting of the

Seibert plurality and Justice Kennedy’s concurrence

in the case of a murder suspect who alleged that the

police engaged in a deliberate two-step interrogation

technique to sidestep Miranda.45 The Martinez court

considered whether any curative measures were

taken as the sixth factor after the Seibert plurality’s

five-factor objective test.46 Tellingly, the Arizona

appeals court concluded that the Seibert plurality’s

factors favored admission of the suspect’s postwarning statement while the lack of any curative

measures “weigh[ed] against admissibility.”47 The

hybrid test, “taken as a whole,” still compelled the

admission of defendant’s post-warning statements.48

In State v. Martinez, the Arizona Court of Appeals

combined the Seibert plurality factors with the

curative measures mentioned in Justice Kennedy’s

concurrence to determine whether police officers used

a deliberate two-step strategy.49 The court ultimately

concluded that the plurality’s factors favored

admission of the suspect’s post-warning statement,

while the lack of curative measures favored

exclusion.50 Such a hybrid test creates further

confusion and again demonstrates that post-warning

statements can be admissible under the Seibert

45 State v. Martinez, No. 1 CA-CR 13-0107, 2014 WL 5342708, at

*5-*7 (Ariz. App., Oct. 21, 2014).

46 See id.

47 See id. at *7.

48 See id.

49 Martinez, 2014 WL 5342708, at *5-*7.

50 See generally, id.

23

plurality but inadmissible under Justice Kennedy’s

concurrence.51

In the Seventh Circuit, the appellate court issued

three opinions across four years to determine the

admissibility of a suspected bank robber’s postwarning statements.52 In United States v. Stewart,

the district court read the Seibert plurality’s

balancing test into Justice Kennedy’s allowance for

“curative steps.”53 The Seventh Circuit then thrice

considered the application of the Seibert plurality and

Justice Kennedy’s concurrence before ultimately

admitting defendant’s post-warning statements.54

Though the Stewart court applied a hybrid approach,

the evident confusion within the Seventh Circuit only

worsened in United States v. Heron when the court

“conclude[d] that the Marks rule is not applicable to

Seibert.”55

The Seventh Circuit is not alone in issuing

persistently unclear guidance.56 The Third, Fourth,

51 See, e.g., Lewis, 833 F.3d at 1008.

52 See United States v. Stewart, 388 F.3d 1079 (7th Cir. 2004)

(finding district court evidence insufficient to establish whether

officers deliberately employed a two-step strategy to circumvent

Miranda) (Stewart I); United States v. Stewart, 191 F. App’x 495

(7th Cir. 2006) (directing the District Court to make specific

findings into officer intent) (Stewart II); Stewart, 536 F.3d at 714

(issuing final opinion admitting defendant’s post-warning

statements) (Stewart III).

53 See Stewart I, at 1090.

54 See Stewart I; Stewart II; Stewart III.

55 See U.S. v. Heron, 564 F.3d 779, 884 (7th Cir. 2009).

56 See Edwards, 923 A.2d at 848 n.10 (“[t]he Seventh Circuit

seems to favor applying a hybrid of the two tests”); see also Locke

Houston, Miranda-in-the-Middle: Why Justice Kennedy’s

Subjective Intent of the Officer Test in Missouri v. Seibert is

24

Fifth, and Eighth Circuit courts apply varying

iterations of Justice Kennedy’s concurring opinion.57

Decisions from the Fifth Circuit in particular vacillate

between a strict and hybrid application of Justice

Kennedy’s concurrence with the Seibert plurality

opinion.58 In United States v. Courtney, the Fifth

Circuit considered Justice Kennedy’s concurrence

controlling as the holding of the Seibert opinion and

applied it to find that the passage of time between the

first and second interrogations constituted a “curative

measure” sufficient to allay Miranda concerns.59

Conversely, in United States v. Nuñez, the Fifth

Circuit found no evidence of a deliberate attempt to

circumvent Miranda and instead focused upon the

voluntariness of each interrogation stage.60

Differences in suppression outcomes carry steep

consequences for defendants and law enforcement

across the nation. If the volume of cases analyzing the

Seibert plurality and concurrence is any indication,

the

two-step

interrogation

is

a

frequent

Binding and Good Public Policy, 82 MISSISSIPPI LAW

JOURNAL 1129, 1146-50 (2013).

57See Houston, supra note 56, at 1146-50.

58 See id. at 1146-47 (“as the circuit stands today, it seems to be

leaning more towards an application of Justice Kennedy's

subjective intent of the officer test, with concern for Miranda

efficacy as an afterthought.”).

59 See United States v. Courtney, 463 F.3d 333, 338-39 (5th Cir.

2006) (finding that time elapsed between questioning proved to

be a “curative measure” where officers interviewed the suspect

three times over the course of a calendar year and that a

“reasonable person” would ultimately consider the Miranda

warnings sufficient as provided).

60 See United States v. Nuñez, 478 F.3d 663, 668-69 (5th Cir.

2007).

25

phenomenon.61 The discord between circuit courts

and disparate outcomes among even the same circuits

underscores the sheer unpredictability of a

fundamental constitutional right: the Fifth

Amendment protection against self-incrimination.

Amici urge this Court to issue clear guidance on the

application of the Seibert decisions and to discourage

courts from further chipping away at a fundamental

constitutional safeguard.

IV.

IN DECIDING WHETHER TO GRANT

CERTIORARI, THIS COURT SHOULD

CONSIDER THE ALARMINGLY HIGH

PERCENTAGE

OF

PEOPLE,

PARTICULARLY YOUNG ADULTS, WHO

ARE SUSCEPTIBLE TO COERCIVE

INTERROGATION TECHNIQUES AND

FALSELY CONFESS.

Because of the disparate applications of Seibert by

the lower courts, coercive interrogation strategies,

like the intentional question-first, warn-later

technique, continue to erode Miranda protections at a

time when, according to research and recent scientific

findings, those protections should be strengthened to

counteract such coercive tactics.62 Though precise

percentages are unknown, studies show that 20% to

25% of convicted individuals, later exonerated, had

falsely confessed to police.63 These outcomes occur

because the suspect is exposed to highly suggestive

61 Pet. App. A at 35-37.

See, e.g., Saul M. Kassin, False Confessions: Causes,

Consequences, and Implications for Reform, 1 SAGE J. 112 (2014).

63 See id.

62

26

interrogation tactics and “acquiesces [in order to]

escape [from] a stressful situation.64”

A.

Modern Police Interrogations Result in

High Rates of False Confessions.

Even absent extreme police behavior, innocent

people confess to crimes they did not commit.65

Modern studies recognize that confessions may be

coerced, where “custodial police interrogation, by its

very nature, isolates and pressures the individual.”66

The manner in which an interrogation is conducted

may heighten the likelihood of a false confession.

Interrogation tactics championed by the Reid

Technique, a leading interrogation method employed

by law enforcement throughout the United States, are

especially problematic.67

Two commonly used

elements of the Reid Technique are “minimization,”

the

attempted

lowering

of

stakes,

and

“maximization,” an increased focus on the suspect’s

fear and guilt.68 Minimization includes situations

where a police officer strongly asserts accusations of

guilt, stating that such guilt can already be

64 Saul M. Kassin, et al., Police-Induced Confessions: Risk

Factors and Recommendations, 34 J. LAW & HUMAN BEHAVIOR

7, 14 (2010).

65 See, e.g., Steven A. Drizin & Richard A. Leo, The Problem of

False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891,

906-907 (2004).

66 Corley v. United States, 556 U.S. 303, 305 (2009) (citing

Dickerson v. United States, 530 U.S. 428, 435 (2000)).

67 Kassin, et al., supra note 64, at 12-13; see also Brandon

Garrett, Contaminated Confessions Revisited, 101 VA. L. REV.

395, 428-29 n.16 (2014).

68 See Kassin, supra note 64, at 12.

27

established through evidence obtained, and the

refusal to accept a statement of denial.69

Maximization, in contrast, is intended to lead the

suspect to believe establishing guilt is inevitable,

often through creating a situation in which the

suspect feels hopeless.70 Trickery and deception are

both examples of maximization as well as

cornerstones of many police manuals, and long

deemed legal by the United States Supreme Court and

various state court systems.71 Tellingly, in 2017, one

of the largest consulting groups responsible for

training U.S. law enforcement, Wicklander-Zulawski

& Associates, ceased all instruction of the Reid

Technique in recognition of its disastrous effects.72

The unexpected number of false confessions since the

early 1990s also led to the implementation of

mandatory videotaped interrogations in twenty-five

states.73

What is worse, false confessions are likely to occur

primarily in “more serious cases, especially

69 Id.

70 Id.

Id.; see also Frazier v. Cupp, 394 U.S. 731, 738-39 (1969);

Commonwealth v. Selby, 420 Mass. 656, 663-64 (Mass. 2004)

(finding that although trickery and deception are disfavored,

they do not necessarily lead to involuntary confessions.).

72 See Leading Police Consulting Group Will No Longer Teach the

Reid Technique, Innocence Project (2017), available at

https://innocenceproject.org/police-consultants-drop-reidtechnique/.

73 See David Coffey, Why do people confess to crimes they didn’t

commit?,

Livescience

(2020),

available

at

https://www.livescience.com/why-people-fasely-confess-tocrimes.html.

71

28

homicides.”74 In a study of 125 DNA exonerations in

cases with false confessions, the “overwhelming

majority,” or 81%, occurred in murder cases.75

B.

Teenagers Falsely Confess at Higher

Rates Due to Their Age and Susceptibility.

1.

Age

Adolescents are among the most vulnerable

populations with respect to false confessions.76

Research has shown that 49% of false confessions

exonerated by DNA evidence were from people under

21 years of age.77 According to the National Registry

of Exonerations, 36% of individuals exonerated for

wrongful convictions involving false confessions were

18 years or younger at the time of their alleged

crime.78 The percentage is 9.88% for those above the

age of 19.79

Teenagers are also more likely than adults to waive

their Miranda rights.80 This may result from the

74 Brandon L. Garrett,

The Substance of False Confessions, 62

STAN. L. REV. 1051, 1065 (2010).

75 Id. at 1066.

76 The National Registry of Exonerations, available at

https://www.law.umich.edu/special/exoneration/Pages/about.asp

x.

77 Coffey, supra note 73.

78 The National Registry of Exonerations, supra note 76.

79 Id.

80 Jason Mandelbaum and Angela Crossman, No illusions:

Developmental considerations in adolescent false confessions,

CYF News (2014) (Citing Redlich, Silverman, Chen, & Steiner

(2004), available at

29

likelihood that adolescents will misunderstand the

warning.81 In one study, of the 66 DNA exonerations

involving false confessions, 23 were juveniles and at

least 22 were mentally impaired or mentally ill.82 All

66 exonerees had waived their Miranda rights.83

Courts have also questioned a teenager’s ability to

invoke their constitutional rights, particularly

regarding their ability to waive their rights

voluntarily, knowingly, and intelligently.84

2.

Susceptibility

Unsurprisingly, adolescents are more likely to base

their decisions on immediate, rather than long-term,

consequences.85 This suggests that teenagers will

likely make decisions different from those they would

have made as adults.86 Experts attribute juvenile

false confessions to the use of police interrogation

tactics intended for adults.87 Specifically, Bowman

https://www.apa.org/pi/families/resources/newsletter/2014/12/ad

olescent-false-confessions.).

81 Viljoen, J. L., Klaver, J., & Roesch, R., Legal Decisions of

Preadolescent and Adolescent Defendants: Predictors of

Confessions, Pleas, Communication with Attorneys, and

Appeals, Law and Human Behavior, 29(3), 253, 254 (2005).

82 Garrett, supra note 67 at 400 n.16.

83 Id. at 402.

84 Oberlander, L. B., & Goldstein, N. E., A review and update on

the practice of evaluating Miranda comprehension, 19 (4)

BEHAVIORAL SCIENCES & THE LAW, 453-461 (2001).

85See generally, Grisso, T., Steinberg, L., Woolard, J. et

al., Juveniles' Competence to Stand Trial: A Comparison of

Adolescents' and Adults' Capacities as Trial Defendants, 27 LAW

HUMAN BEHAVIOR 333-363 (2003).

86 Id.

87 Why are Youth Susceptible to False Confessions?, Innocence

Project (2015) (Listing the tactics as coercion, false promises of

leniency, and deception about evidence.), available at

30

found that “[t]he interrogation process is inherently

coercive. It is psychologically difficult [] even for

strong,

intelligent

people

to

withstand.”88

Particularly for teenagers, when such strategies are

“impose[d upon] an individual who is young, who is

intellectually vulnerable, the capacity of the person to

withstand the process is easily overcome.”89 Take the

case of Martin Tankleff, a 17-year-old suspect who

was wrongfully convicted of murdering his parents.90

Tankleff affirmed his innocence repeatedly during

multiple hours of a custodial interrogation until the

questioning officer informed him of purported

testamentary evidence from Tankleff’s father,

solicited while his father was seriously injured but

before his passing, where he alleged that Tankleff

attacked his mother.91 Influenced by his father’s

apparent testimony, Tankleff ultimately confessed to

the crime.92

C.

False Confessions Carry a Heavy Biasing

Effect.

A false confession, even once retracted or proven to

result from police coercion, can alter the entire course

of an investigation and trial. In the investigation

https://innocenceproject.org/why-are-youth-susceptible-to-falseconfessions/.

88 Id.

89 Id.

90 Maurice Possley, Martin Tankleff, The National Registry of

Exonerations (2020), available at

https://www.law.umich.edu/special/exoneration/Pages/casedetai

l.aspx?caseid=3675.

91 Id.

92 See id.

31

phase, “[o]nce a suspect confesses, police often close

the investigation, deem the case solved, and overlook

exculpatory information – even if the confession is

internally inconsistent, contradicted by external

evidence, or the product of coercive interrogation.”93

At the trial stage, jurors give disproportionate weight

to confession evidence and fail to adequately discount

retracted false confessions or those that have been

shown to result from coercion.94 False confession

evidence is even powerful enough to overcome highly

probative evidence, including exculpatory DNA

results.95

CONCLUSION

Amici respectfully request that the Petition for

Certiorari be granted.

93 Saul M. Kassin, Why Confessions Trump Innocence, 67 AM.

PSYCHOL. 431, 437 (2012) (emphasis added).

94 See id. at 433-34; see also Steven A. Drizin & Richard A. Leo,

The Problem of False Confessions in the Post-DNA World, 82 N.C.

L. REV. 891, 961-62 (2004) (study of 125 proven false confession

exonerations from the post-Miranda era).

95 Saul M. Kassin, et al., Police-Induced Confessions: Risk

Factors and Recommendations, 34 J. LAW & HUMAN BEHAVIOR 4,

23 (2010).

32

Respectfully submitted,

James C. Dugan

Counsel of Record

Alina Jamil Mian

Michelle Mlacker

WILLKIE FARR & GALLAGHER LLP

787 Seventh Avenue

New York, NY 10019

(212) 728-8000

Professor Colin Miller

1525 Senate Street, Room 316

Columbia, SC 29208

(803) 777-3433

mille933@law.sc.edu

October 26, 2021

Counsel for Amici

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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