Amicus Curiae Brief — Michigan v. Harvey

| Supreme Court, U

FILEE

No. 88-512 PR 21 1

| JOSEPH F. SPANIO‘N

CLERK

Jn the Supreme Court of the Gnited States a

OCTOBER TERM, 1988

STATE OF MICHIGAN, PETITIONER

Vv.

Tyris LEMONT HARVEY

ON WRIT OF CERTIORARI TO THE

MICHIGAN COURT OF APPEALS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

WILLIAM C. BRYSON

Acting Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

CHRISTINE DESAN HUSSON

Assistant to the Solicitor General

J. DOUGLAS WILSON

Altorney

Depariment of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether respondent’s direct testimony at tria! could be

impeached with a statement obtained from him in viola-

tion of Michigan v. Jackson, 475 U.S. 625 (1986).

(1)

TABLE OF CONTENTS

Page

EE l

I ES a 2

De Ueda cuweeyeeseeeeseentes 6

Argument:

Out-of-Court statements taken without a valid waiver of

the Sixth Amendment right to counsel may be used for

impeachment purposes at trial ....................... 9

A. The Sixth Amendment exclusionary rule should be

applied in this setting in the same manner as the

Fourth Amendment exclusionary rule ............. 9

B. A violation of the prophylactic rule established by

Michigan v. Jackson is adequately deterred by ex-

cluding improperly obtained evidence from the gov-

es a eon oc 4cce's eee e ss es ses 20

Teen a wecescdececcees 24

TABLE OF AUTHORITIES

Cases:

Alderman v. United States, 394 U.S. 165 (1969) ......... 14

Bishop v. Rose, 701 F.2d 1150 (6th Cir. (1983) .......... 2

Brewer v. Williams, 430 U.S. 387 (1977) ............... 12

Bruton v. United States, 391 U.S. 123 (1968) ........... ll

Edwards ¥. Arizona, 451 U.S. 477 (1981) .............. 20, 21

Delaware v. Van Arsdall, 475 U.S. 673 (1986) .......... 6, 14

Doyle v. Ohio, 426 U.S. 610 (1976) ................... 11

Harris v. New York, 401 U.S. 222 (1971) ............ 8, 11, 14,

15, 22, 23

Jenkins v. Anderson, 447 U.S. 231 (1980) .............. 11, 19

Johnson v. Zerbst, 304 U.S. 458 (1938)... 2... ..00..... 23

Maine v. Moulton, 474 U.S. 159 (1985) ............. 12, 13, 16

Mapp v. Ohio, 367 U.S. 643 (1961) ...............2... 13

Massiah v. United States, 377 U.S. 201 (1964) ........ 12, 13, 16

Meadows v. Kuhlmann, 812 F.2d 72 (2d Cir.), cert.

rr 2

Michelson v. United States, 335 U.S. 469 (1948) ........ 19

Michigan v. Jackson, 475 U.S. 625 (1986) ............. sa

8, 12, 20, 21, 22, 24

Michigan v. Long, 463 U.S. 1032 (1983) ............... 5-6

(III)

IV

Cases — Continued: : Page

Mincey v. Arizona, 437 U.S. 385 (1978) ............... 13

Miranda v. Arizona, 384 U.S. 436 (1966) .............. 8, 11,

21, 22, 23, 24

New Jersey v. Portash, 440 U.S. 450 (1979) ............ 13, 22

Nix v. Williams, 467 U.S. 431 (1984) ................ 7, 14,19

Oregon v. Elstad, 470 U.S. 298 (1985) .... 2.0.6... 66a. 22, 23

Oregon v. Hass, 420 U.S. 714 (1975) .............0 000s 8, 14,

15, 17, 22

Patterson v. Illinois, 108 S. Ct. 2389 (1988) ........... 8, 23, 24

People v. Gonyea, 421 Mich. 462, 365 N.W.2d 136

Re pre ren teenie i Se fe Pe ere ete OD 2,6

People v. Knippenberg, 66 Ill. 2d 276, 362 N.E.2d 681

EE ons'ocudekdss 640 1ddaees heen cewedenn eases ten 2

People v. Maerling, 64 N.Y.2d 134, 485 N.Y.S.2d 23,

Ee cacedcéeveeeuns l

Solem v. Stumes, 465 U.S. 638 (1984) ................. 14, 21

State v. Swallow, 405 N:W.2d 29 (S.D. 1987) ........... ]

State v. Thomas, 698 S.W.2d 942 (Mo. 1985) ........... ]

Stone v. Powell, 428 U.S. 465 (1976) .................. 13, 14

Strickland v. Washington, 466 U.S. 668 (1984) ......... 7, 18

Tennessee v. Street, 471 U.S. 409 (1985) ............... 1]

United States v. Ash, 413 U.S. 300 (1973) ....... ee 17, 24

United States v. Blue, 384 U.S. 251 (1966) .............. 18

United States v. Brown, 699 F.2d 585 (2d Cir. 1983) ..... 2

United States v. Cronic, 466 U.S. 648 (1984) ........... 17

United States v. Gouveia, 467 U.S. 180 (1984) .......... 21

United States v. Havens, 446 U.S. 620 (1980) ........... 6, 10,

11, 14, 15, 19

United States v. Henry, 447 U.S. 264 (1980) ............ 12, 13

United States v. Lott, 854 F.2d 244 (7th Cir. 1988) ...... l

United States v. McManaman, 606 F.2d 919 (10th Cir.

DT s-.6 s ciudhandhoshedesesaceeuebhilaseeakeGuan l

United Siates v. Morrison, 449 U.S. 361 (1981) ........ 6 18, 20

Uniied States v. Nobles, 422 U.S. 225 (1975) ........... 14

United States v. Taxe, 540 F.2d 961 (9th Cir. 1976), cert.

GominG, GUD, CREO 6 kc vc ccccncccccevseess l

United States v. Wade, 388 U.S. 218 (1967) ............ 15, 20

Walder v. United States, 347 U.S. 62 (1954) ............ 6, 9,

Weeks v. United States, 232 U.S. 383 (1914) ............ 13

Constitution: Page

U.S. Const.:

ES Pact AEM EERO OR rhc | 6, 7, 9, 12,

13, 14, 15, 16, 17

fh oe ee ued eek ia ue sees 12, 13,

20, 21, 22, 23

ESRC EEN ie res Smee ne fs 2! passim

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as Sa ey ee ae = ee

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-512

STATE OF MICHIGAN, Pt: ITIONER

v.

Tyris LEMONT HARVEY

ON WRIT OF CERTIORARI TO THE

MICHIGAN COURT OF APPEALS

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case presents the question whether statements ob-

tained from a defendant in violation of the rule adopted in

Michigan v. Jackson, 475 U.S. 625 (1986), may be used to

impeach the defendant if he testifies at trial. Because the

Michigan v. Jackson rule protects the Sixth Amendment

right to counsel, the issue can arise in both federal and

state prosecutions.' The United States therefore has a law

enforcement interest in the outcome of this case.

' Federal and state courts have reached divergent results on the

issue whether a defendant may be impeached by statements obtained

in violation of the Sixth Amendment. Cases permitting impeachment

include United States v. Lott, 854 F.2d 244 (7th Cir. 1988); United

States v. McManaman, 606 F.2d 919 (10th Cir. 1979); United States v.

Taxe, 540 F.2d 961 (9th Cir. 1976), cert. denied, 429 U.S. 1040 (1977);

State v. Thomas, 698 S.W.2d 942 (Mo. 1985); People v. Maerling, 64

N.Y.2d 134, 485 N.Y.S.2d 23, 474 N.E.2d 231 (1984); and Svate v.

Swallow, 405 N.W.2d 29 (S.D. 1987). Cases prohibiting impeachment

(1)

STATEMEN7

1. On June 11, 1986, respondent rang the doorbell of

Audrey Sharp’s house in Detroit, Michigan, and asked to

use the telephone. Sharp, according to her trial testimony,

admitted respondent into the house. Shortly thereafter,

while Sharp was sitting at her kitchen table, respondent

approached her from behind holding a barbecue fork.

After he ordered her to get up, Sharp grabbed

respondent’s hand. A struggle began, during which

respondent tried to push Sharp toward the basement.

Sharp resisted, and when respondent put his hand over

Sharp’s mouth, she bit him on the hands and arm. Re-

spondent then bit Sharp on the back, threw her to the

floor, and punched her repeatedly in the face. Sharp

escaped to the living room, but respondent followed her

with the barbecue fork and a pair of garden shears.

Respondent then ordered Sharp to remove her clothing,

after which respondent forced her to submit to oral sex

and raped her. Tr. 12-27, 55-70, 75.

Respondent was subsequently arrested in connection

with the incident. On the morning of July 2, resp.»ndent

gave a statement to a police officer in which he claimed

that he and Sharp had fought because Sharp had refused

to pay for cocaine that respondent had shared with her.

Respondent denied that any sexual contact had occurred

between him and Sharp. When the officer presented the

three-page statement to him to sign, respondent signed the

first page, but he refused to sign the last two pages

because, in respondent’s words, the officer “wrote some

stuff I didn’t like * * * something that wasn’t pertaining to

include Meadows v. Kuhimann, 812 F.2d 72 (2d Cir.), cert. denied,

482 U.S. 915 (1987); United States v. Brown, 699 F.2d 585 (2d Cir.

1983); Bishop v. Rose, 701 F.2d 1150 (6th Cir. 1983); People v. Knip-

penberg, 66 Ill. 2d 276, 362 N.E.2d 681 (1977); and People v. Gonyea,

421 Mich. 462, 365 N.W.2d 136 (1984).

3

what happened.” Pet. App. 2a. Respondent then re-

quested an attorney, and the interrogation ceased. Later

that day, respondent was arraigned on charges of criminal

sexual conduct, and counsel was appointed for him. Pet.

App. 3a.

On September 9, 1986, six days before trial, respondent

told a police officer that he wanted to make another state-

ment. He added that he did not know if he should talk to

his lawyer first. The officer told respondent that he did not

need to talk to his lawyer, because his lawyer would

receive a copy of the statement in any event. Pet. App. 3a;

J.A. 32-33; Tr. 117. Respondent then signed a constitu-

tional rights waiver form. He initialed the portions of the

form advising him of his right to remain silent (including

the right not to answer questions or make statements), his

right to have a lawyer present before or during question-

ing, and his right to have a lawyer appointed for him. He

did not initial the portion of the form advising him of his

right to decide to stop answering questions at any time, or

the portion advising him that anything he said could be

used against him in court. When asked if he understood

his constitutional rights, respondent answered that he did.

Pet. App. 3a-4a. Respondent then gave a statement that

differed in a few respects from the testimony he would

give at trial, and differed significantly from the statement

he had given on July 2.

2. Testifying in his own behalf, respondent gave a very

different account of the events of June 11 from the ac-

count given by Sharp. Respondent testified that he had

seen Sharp outside her house and had asked her if she

wanted to share some cocaine. He then went into Sharp’s

house and, after smoking some of the cocaine, asked her if

she would have sex with him in return for the cocaine. Ac-

cording to respondent, Sharp agreed to that proposal, but

4

at that point Sharp’s sister arrived. Respondent testified

that he and the victim’s sister left the house to purchase

more cocaine and later returned. According to respond-

ent, another man then arrived at the house and left with

Sharp’s sister. J.A. 5-6, 13-14; Tr. 98-9°, 104.

Respondent testified that after the others had left, he

again asked Sharp to have sex with him, but this time she

refused. Respondent claimed that he and Sharp argued,

that she stabbed him with a fork and bit his arm, and that

he then punched Sharp in the face and bit her on the back.

Res, wudent testified that after further argument, Sharp

acquiesced in his request for sex. According to re*pond-

ent, however, the cocaine had hindered his ability to

engage in sexual activity, and he never actually had sexual

intercourse with Sharp. J.A. 6-8, 15-20; Tr. 99-100,

105-108.

On cross-examination, the prosecutor used respondent’s

July 2 statement to impeach his testimony. Specifically,

the prosecutor asked why respondent’s July 2 statement

omitted certain portions of the story respondent told ai

trial. J.A. 23-31; Tr. 110-116. Respondent replied that he

had given the police investigator some of the information

he had recounted in his trial testimony, but that the in-

vestigator had failed to include those details in the written

statement. J.A. 27-29; Tr. 113-114. Respondent also

denied saying some of the things that were attributed to

him in the July 2 statement. J.A. 30-31; Tr. 115. Respond-

ent’s counsel did not object to that cross-examination.

The prosecutor then asked respondent whether he had

given the police a statement on September 9. J.A. 31-32;

Tr. 116. Defense counsel objected to the use of the

September 9 statement “for substantive evidence,” bui

when the prosecutor explained that she would only be

using it for impeachment, defense counsel did not interpose

5

any further objection. J.A. 32-34; Tr. 117. The prosecutor

then asked petitioner about several points that were in-

cluded in his trial testimony but omitted from his

September 9 statement. J.A. 34-39; Tr. 118-121.

3. Respondent was convicted and sentenced to a term

of six to ten years’ imprisonment. On appeal, respondent

challenged the use of both the July 2 and September 9

Statements to impeach him. The Michigan Court of Ap-

peals uph-ld the use of the July 2 statement. It ruled that,

despite the lack of any showing in the record that respond-

ent had received Miranda warnings prior to making that

statement, the use of the statement for impeachment pur-

poses did not violate respondent’s Fifth and Fourteenth

Amendment rights because the statement had not been in-

voluntary. Pet. App. Sa-6a.

The court reached a different result with regard to the

September 9 statement. That statement, the court held,

was obtained from respondent “in violation of [his] Sixth

Amendment right to counsel.” Pet. App. 6a-7a (citing

Michigan v. Jackson, 475 U.S. 625 (1986)). According to

the court, “[a] statement so acquired may not be used for

any purpose, including impeachment.” Pet. App. 7a. The

court noted that respondent’s counsel did not object to the

use of the September 9 statement for impeachment pur-

poses, but the court nonetheless found the use of that

Statement to be constitutional error. Finally, the court

held that the admission of the statement was not harmless

error, because the trial “involved a credibility contest be-

tween defendant and victim.” /bid. The court therefore

reversed respondent’s convictions.2 The Michigan

Supreme Court, with three justices dissenting, denied the

State leave to appeal. Pet. App. 8a-9a.

2 The “state court decision fairly appears to rest primarily on

federal law” as required by Michigan v. Long, 463 U.S. 1032, 1040

6

SUMMARY OF ARGUMENT

A. It is a “general rule” of our system of justice that

“remedies should be tailored to the injury suffered from

{a] constitutional violation and should not unnecessarily

infringe on competing interests.” United States v. Mor-

rison, 449 U.S. 361, 364 (1981). Consistently with that

principle, this Court has held that violations of the Fourth

Amendment are sufficiently redressed at trial when the

government is prohibited from using unlawfully obtained

evidence as part of its case in chief. The futher prohibition

against the use of illegally seized evidence to impeach is

not required for deterrent purposes, and it undermines the

truth-seeking goal of the criminal trial. See United States

v. Havens, 446 U.S. 620 (1980); Walder v. United States,

347 U.S. 62 (1954).

Because of similarities in the operation of the exclu-

sionary rules under the Fourth and Sixth Amendments,

the same principles should apply to statements obta.ned as

a result of pretrial interrogation conducted in violation of

the Sixth Amendment. The Sixth Amendment, like the

Fourth Amendment, does not expressly require the exclu-

sion of evidence at trial; that remedy is the product of a

(1983). The state court of appeals clearly defined the question as a

“Sixth Amendment right to counsel” issue. Pet. App. 6a. After citing

Michigan v. Jackson in order to identify the type of Sixth Amendment

violation involved, the court supported its conclusion that the

disputed evidence had to be excluded by citing two federal appellate

court decisions. It then noted simply that “Michigan law is

consistent.” Pet. App. 7a. Cf. Delaware v. Van Arsdall, 475 U.S. 673,

678 n.3 (1986). Should there be any doubt, Michigan law rests upon a

decision, People v. Gonyea, 421 Mich. 462, 365 N.W.2d 136 (1984), in

which the deciding vote was cast by a concurring judge who appeared

to rely solely upon the Sixth Amendment in ruling that evidence ob-

tained without a valid waiver is inadmissible for impeachment. See

421 Mich. at 481-483, 365 N.W.2d at 145 (Cavanagh, J., concurring).

court-made rule designed to enforce the constitutional

prohibition. And the Court has held that the application

of the Sixth Amendment exclusionary rule, like the Fourth

Amendment exclusionary rule, must be determined by

balancing the societal costs of the rule against its benefits.

Nix v. Williams, 467 U.S. 431, 446 (1984).

The interest in promoting the truth-seeking process is at

its greatest when one party to the trial seeks to demon-

Strate that the other party is relying on false evidence. For

that reason, the case against the exclusion of reliable

evidence at trial is at its strongest when impeachment

evidence is at issue. And, as in the Fourth Amendment

context, the deterrent effect of the Sixth Amendment ex-

clusionary rule is adequately served by the exclusion of im-

properly obtained evidence from the government’s case in

chief; the marginal deterrent effect of excluding the

evidence for impeachment purposes is insufficient to over-

come the overriding interest in protecting the truth-seeking

process at trial.

If anything, the argument in favor of exclusion is

weaker in the Sixth Amendment context than in the

Fourth Amendment setting. The underlying purpose of

the Sixth Amendment is to ensure that the defendant has

counsel so that the adversary process will function effec-

tively to achieve justice. Because the Sixth Amendment is

intended to promote the effective operation of the adver-

sary system, this Court in its Sixth Amendment decisions

has focused not only on the right to counsel, but more

generally on “the ability of the adversary system to pro-

duce just results.” Strickland v. Washington, 466 U.S.

668, 689, 692 (1984). Because the exposure of false

testimony is perhaps the most important function of the

adversary process, permitting the use of evidence for im-

8

peachment purposes is consistent with the purposes of the

Sixth Amendment, even if the evidence was improperly

obtained.

B. The argument for admitting respondent’s pretrial

statement is particularly strong in this case, because the

violation found by the court here was not a direct violation

of the Sixth Amendment, but a violation of the pro »hylac-

tic rule adopted by this Court in Michigan v. Jackson, 475

U.S. 625 (1986). That rule provides that unless the defend-

ant initiates contact with the police, a court may not

recognize a waiver of the Sixth Amendment right to

counsel once the defendant has made a request for

counsel.

This Court has previously held that violations of the

prophylactic rule adopted in Mirenda vy. Arizona, 384

U.S. 436 (1966), are adequately deterred by barring the ar-

firmative use of improperly obtained evidence; the Court

has declined in that setting to require the exclusion of

evidence offered for impeachment purposes. See Harris v.

New York, 401 U.S. 222 (1971); Oregon v. Hass, 420 U.S.

714 (1975).

The same analysis applies in this case. As in the case of

violations of the prophylactic rule designed to protect the

Fifth Amendment privilege against compulsory self-

incrimination, violations of the rule in Jackson do not re-

quire the exlusion of evidence for impeachment purposes.

The Court’s recent decision in Patterson v. Illinois, 108 S.

Ct. 2389 (1988), removes any doubts on that score. The

Court in Patterson held that the warnings required by this

Court in Miranda are sufficient to support a waiver of the

right to counsel under the Sixth Amendment. In the case

of pretrial interrogation, the Court explained, an attorney

serves the same “limited purpose” whether the interroga-

tion occurs before or after the initiation of formal charges.

9

In that setting there is therefore no justification for

according different treatment to violations of the pro-

phylactic rule designed to protect a suspect’s rights under

the Fifth Amendment and the prophylactic rule adopted in

Jackson, which is designed to protect a defendant’s rights

under the Sixth Amendment.

ARGUMENT

OUT-OF-COURT STATEMENTS TAKEN WITHOUT A

VALID WAIVER OF THE SIXTH AMENDMENT RIGHT TO

COUNSEL MAY BE USED FOR IMPEACHMENT PUR-

POSES AT TRIAL

A. The Sixth Amendment Exclusionary Rule Should Be Ap-

plied In This Setting In The Same Manner As The Fourth

Amendment Exclusionary Rule

1. This Court has tong held that evidence obtained in

violation of the Fourth Amendment may be used to im-

peach a defendant’s testimony at trial. In Walder v. United

States, 347 U.S. 62 (1954), the Court ruled for the first

time that the Fourth Amendment exclusionary rule, which

bars the affirmative use of illegally seized evidence, should

not be extended to bar the use of that evidence for im-

peachment purposes. The defendant in Walder, who had

been indicted for trafficking in narcotics, took the stand

and denied that he had ever possessed or sold = ~cotics.

Id. at 63. After he reiterated his testimony on -ross-

examination, the government introduced evidence that the

defendant had possessed heroin two years earlier.

Although that evidence was the product of an illegal

searcn, the Court held that the defendant’s assertion that

he had never possessed narcotics “opened the door, solely

for the purpose of attacking the defendant’s credibility,”

to evidence that the government had previously seized in

violation of the Fourth Amendment. /d. at 64.

10

The Court applied the same principles in United States

v. Havens, 446 U.S. 620 (1980). There, the defendant took

the s and and denied that he had been involved in tac co-

caine smuggling scheme with which he was charged. On

cross-examination, the defendant denied that he had

possessed certain incriminating material when he returned

to this country from a trip abroad. The government then

introduced evidence that law enforcement officers had il-

legally seized from his luggage. The Court approved the

admission of the improperly obtained material to impeach

the defendant’s testimony.

In both Walder and Havens, this Court reasoned that

the benefits of the exclusionary rule must be weighed

against its costs. The Court emphasized that arriving at the

truth is “a fundamental goal of our legal system.” Havens,

446 U.S. at 626. It reaffirmed that a defendant’s election

to testify includes the obligation to testify truthfully, and

it found “essential * * * to the proper functioning of the

adversary system” the government’s ability to conduct

“proper and effective cross-examination * * * [of] seem-

ingly false statements.” Havens, 446 U.S. at 626-627; see

also Walder, 347 U.S. at 65. Against these values, the

Court balanced the deterrent function of the exclusionary

rule. See Havens, 446 U.S. at 626-627. It determined that

the purposes of the exclusionary rule are adequately served

by denying the government the ability to make affirmative

use of illegally procured evidence, and it deemed the “in-

cremental furthering” of deterrence achieved by forbid-

ding the impeachment of a testifying defendant insuffi-

> The defendant’s traveling companion had been stopped upon ar-

riving in the United States; a search revealed that he had cocaine sown

into makeshift pockets on his shirt. Police acting without a warrant

found in the defendant's suitcase a T-shirt from which pieces that

matched the makeshift pockets on his friend’s shirt had been cut.

United States v. Havens, 446 U.S. 620, 621-622 (1980).

11

cient “to permit or require that false testimony go un-

challenged, with the resulting impairment of the integrity

of the factfinding goals of the criminal trial.” Jd. at 627.

The Court’s decisions in Walder and Havens reflect a

more general principle that the rules that constrain the

government in its direct case do not necessarily apply to

matters of rebuttal and impeachment. In order to avoid a

serious distortion of the truth-seeking process, the Court

has permitted the government in a number of settings to

use evidence for impeachment purposes even if the govern-

ment would not be permitted to use the same evidence af-

firmatively. See, e.g., Tennessee v. Street, 471 U.S. 409

(1985) (government may offer into evidence a co-

defendant’s confession, otherwise inadmissible under

Bruton v. United States, 391 U.S. i23 (1968), to correct a

potentially misleac'ng impression created by the defend-

ant’s testimony); Jenkins v. Anderson, 447 U.S. 231 (1980)

(government may impeach a testifying defendant with his

failure to tell his exculpatory story prior to his arrest);

Doyle v. Ohio, 426 U.S. 610, 619-620 n.11 (1976) (govern-

ment may impeach a defendant with his failure to tell his

exculpatory story after receiving Miranda warnings if

defendant testifies that he did tell that story to the police

after his arrest); Harris v. New York, 401 U.S. 222 (1971)

(government may impeach a testifying defendant with a

statement taken in violation of Miranda v. Arizona, 384

U.S. 436 (1966)). The Court’s rulings in each of those

cases, as in Walder and Havens, evidences the Court’s

recognition that the truth-seeking process is more seriously

distorted if false testimony is permitted to go uncorrected

than if reliable evidence is kept from the jury in the first

instance.

2. The same principles should apply to statements ob-

tained through pretrial interrogation conducted in viola-

12

tion of the Sixth Amendment. Although the Sixth Amend-

ment exclusionary rule forbids the affirmative use of such

statements, the strong policy of promoting the truth-

finding process at trial outweighs the justification for ex-

tending the Sixth Amendment exclusionary rule to

evidence that is offered for impeachment purposes.

The Sixth Amendment right to counsel is similar in

some important -espects to the Fourth Amendment right

to be free from illega! searches and seizures. Like the

Fourth Amendment, the Sixth Amendment imposes

obligations on the government that can be violated before

trial. After arraignment or its equivalent, “government ef-

forts to elicit information from [an] accused, including in-

terrogation, represent ‘critical stages’ at which the Sixth

Amendment applies.” Michigan v. Jackson, 475 U.S. at

630. Thus, the police may violate the Sixth Amendment if

they elicit statements from an indicted defendant who has

not validly waived his right to counsel. See Brewer v.

Williams, 430 U.S. 387 (1977). They also may violate the

Sixth Amendment if they deliberately elicit incriminating

statements from an uncounseled defendant who does not

realize that he is speaking to a state agent or informant.

Maine v. Moulton, 474 U.S. 159, 176 (1985); United States

v. Henry, 447 U.S. 264, 274 (1980); see Massiah v. United

States, 377 U.S. 201 (1964).

Unlike the Fifth Amendment, which explicitly prohibits

the use of compelled self-incriminating testimony, neither

the Fourth Amendment nor the Sixth Amendment ex-

pressly requires the exclusion of unlawfully obtained

evidence. Nor is exclusion mandated by concerns about

the probative character or reliability of such evidence. To

the contrary, evidence obtained in violation of the Fourth

or Sixth Amendment right to counsel is generally “the

most probative information” available but is excluded

13

without regard to its reliability. Stone v. Powell, 428 U.S.

465, 490 (1976); Moulton, 474 U.S. at 191 (Burger, C.J.,

dissenting); Henry, 447 U.S. at 289 (Rehnquist, J., dis-

senting); Massiah, 377 U.S. at 208-209 (White, J., dissent-

ing); Mapp v. Ohio, 367 U.S. 643, 656 (1961). And

evidence taken in violation of the Fourth or the Sixth

Amendment typically is not “coerced” or “compelled,” as

is the case with evidence obtained in violation of the Fifth

Amendment. See Massiah, 377 U.S. at 209-211 (White, J.,

dissenting).

Evidence that is coerced or compelled in violation of the

Fifth Amendment may not be used either affirmatively or

for impeachment purposes. See New Jersey v. Portash,

440 U.S. 450, 459 (1979); Mincey v. Arizona, 437 U.S.

385, 397-398 (1978). As the Court has explained, the ad-

mission of such evidence for either purpose would directly

contravene the prohibition in the Fifth Amendment

against compelling a person “to be a witness against

himself” or would be so unreliable that its use at trial for

any purpose would violate due process. By contrast, the

impeachment use of evidence seized in violation of the

Fourth or Sixth Amendments does not violate the express

terms of any constitutionai provision, but simply brings

into question whether to apply a court-made exclusionary

rule.

This Court has chosen the exclusionary rule to remedy

Sixth as well as Fourth Amendment violations. Mapp v.

Ohio, 367 U.S. at 648, 656 (Fourth Amendment); Weeks

v. United States, 232 U.S. 383, 391-393 (1914) (Fourth

Amendment); Moulton, 474 U.S. at 180 (Sixth Amend-

ment); Henry, 447 U.S. at 282 n.6 (Blackmun, J., dissent-

ing) (Sixth Amendment). The question whether to invoke

the Sixth Amendment exclusionary remedy, like the

analogous questiou with respect to the Fourth Amend-

ment exclusionary rule, may be answered by balancing the

14

societal costs of the rule against its benefits. Nix v.

Williams, 467 U.S. 431, 446 (1984). Because the Fourth

and Sixth Amendments extend their protection in similar

ways, the same considerations that the Court weighed in

Walder and Havens are relevant in the present setting, and

they dictate that the balance be struck in the same way.

a. On one side of the balance is the interest in accurate

verdicts. “[T]he central purpose of a criminal trial is to

decide the factual question of the defendant’s guilt or in-

nocence.” Delaware v. Van Arsdall, 475 U.S. 673, 681

(1986); Stone, 428 U.S. at 490; United States v. Nobles,

422 U.S. 225, 230 (1975). There is a weighty public interest

in “prosecuting those accused of crime and having them

acquitted or convicted on the basis of all the evidence

which exposes the truth.” Alderman v. United States, 394

U.S. 165, 175 (1969). As this Court has stated repeatedly,

a constitutional violation warrants the exclusion of

evidence only if the benefits from exclusion are worth “the

enormous societal cost of excluding truth in the search for

truth in the administration of justice.” Nix, 467 U.S. at

445; see also Solem v. Stumes, 465 U.S. 638, 650 (1984);

Havens, 446 U.S. at 626-628; Hass, 420 U.S. at 722;

Harris, 401 U.S. at 224-226; Alderman, 394 U.S. at

174-175.

When the Court is weighing the exclusion of evidence

that is intended to aid the jury in assessing the credibility

of a defendant’s testimony, an additional factor bears on

the inquiry. In that setting, the general interest in pro-

moting accurate factfinding is enhanced by the special

need to guard against perjury.

The right of every defendant to testify includes the

obligation to testify truthfully. The introduction of

*“Every criminal defendant is privileged to testify in his own

defense, or to refuse to do so. But that privilege cannot be construed

15

evidence for impeachment enforces that obligation by

allowing the contradiction of “seemingly false statements”

the defendant makes on the stand. Havens, 446 U.S. at

627. It would be senseless if the right to the assistance of

counsel, which exists “to assure that the accused’s interests

will be protect . consistently with our adversary theory of

criminal prosecution” (United States v. Wade, 388 U.S.

218, 227 (1967)), were interpreted to prohibit the prosecu-

tion, when faced with apparently perjurious testimony,

from “utiliz[ing] the traditional truth-seeking devices of

the adversary process” (Harris, 401 U.S. at 225).

b. On the other side of the balance is the marginal

deterrent effect that would be served by barring the im-

peachment use of evidence obtained in violation of the

Sixth Amendment. For several reasons, the interest in

deterrence is even smaller in the Sixth Amendment context

than in the Fourth Amendment setting.

First, the difference in the elements of Fourth and Sixth

Amendment violations may make deterrence a less com-

pelling concern under the Sixth Amendment. A Fourth

Amendment violation is complete at the time of the illegal

search or seizure; the introduction of the illegally seized

evidence is not an element of the violation. By contrast,

the pretrial interrogation of a defendant in the absence of

his counsel does not, in itself, make out a Sixth Amend-

ment violation; the violation is complete only when the

defendant’s statement is introduced against him in a pros-

ecution for the crime with which he was charged at the

to include the right to commit perjury. * * * Having voluntarily taken

the stand, petitioner was under an obligation to speak truthfully and

accurately.” Harris, 401 U.S. at 225; see also Havens, 446 U.S. at 626;

Oregon v. Hass, 420 U.S. 714, 723 (1975); Walder, 347 U.S. at 65.

16

time of the interrogation. See Massiah, 377 U.S. at 206

(Sixth Amendment violation is complete “when there [is]

used against [a defendant] at his trial evidence of his own

incriminating words”). An uncounseled pretrial interroga-

tion may be perfectly proper, for example, if the evidence

is introduced in connection with offenses with which the

defendant was not charged at the time of the interroga-

tion. See Moulton, 474 U.S. at 178-180 & n.16. Accord-

ingly, in that setting, there is no Sixth Amendment viola-

tion until and unless the prosecution offers the fruits of

the interrogation into evidence at the trial on the already-

charged crimes. For that reason, there is no misconduct to

deter, since the government’s out-of-court conduct does

not amount to a constitutional violation, and since the

court can prevent the constitutional violation from coming

io pass simply by excluding the evidence from the govern-

ment’s case in chief at trial.

Secondly, as this Court recognized in Jackson, the

police conducting a pretrial interrogation often may not be

aware that the defendant has requested counsel. The

Court has held in Jackson that knowledge of the request

for counsel must be imputed to the police, see 475 U.S. at

634, and evidence obtained as a result of such an inter-

rogation must be excluded from the government’s case in

chief regardless of the officers’ ignorance of the invocation

of counsel. Nonetheless, the exclusion of evidence for all

purposes in that setting is not likely to serve a significant

deterrent purpose, since the police wil! have no reason to

refrain from seeking a waiver of the defendant’s Sixth

Amendment rights and questioning ‘him if they are

unaware that he has requested counsel.

Finally, even if the interest in deterrence were the same

in the case of the Fourth and Sixth Amendment exclu-

sionary rules, this Court has already held in the Fourth

Amendment setting that the marginal deterrence achieved

by the exclusion of evidence offered for impeachment pur-

17

poses is not sufficient to justify its costs. The same

analysis applies in the Sixth Amendment context. There is

no reason to suppose that deterrence is more effective or

more essential in the Sixth Amendment context than in the

Fourth Amendment setting; there is therefore no reason to

exclude evidence under a Sixth Amendment rationale if

similar evidence would not be excluded under the Fourth

Amendment.°

3. To be sure, the analogy between the Fourth and

Sixth Amendments is imperfect because of the different

purposes served by the two provisions. Again, however,

that difference argues agamst the exclusion of evidence of-

fered for impeachment purposes, nat, in its favor.

The purpose of the Sixth Amendment is to ensure that

in the operation of the adversary process, the defendant is

not unfairly disadvantaged by being forced to confront the

professional prosecutor and the technicalities of the crim-

inal justice system without trained legal assistance. United

States v. Ash, 413 U.S. 300, 306-313 (1973). Thus, the

Sixth Amendment guarantee of counsel exists “not for its

own sake, but because of the effect it has on the ability of

the accused to receive a fair trial.” United States v. Cronic,

466 U.S. 648, 658 (1984). The “fair trial” that the Sixth

Amendment seeks to ensure is a trial in which “a defend-

ant has the assistance necessary to justify reliance on the

>In Oregon v. Hass, 420 U.S. 714, 723 (1975), the Court

acknowledged that an officer may have some incentive to disregard a

suspect’s invocation of his right to counsel, since the officer may have

little to lose and something to gain “by way of possibly uncovering im-

peachment material.” That “speculative possibility,” however, was not

sufficient to persuade the Court to require the exclusion of highly pro-

bative evidence that may be the only available antidote to false

testimony at trial. Precisely the same analysis applies here; indeed, the

only difference between this case and Hass is that in this case the

defendant had been formally charged and in Hass he had not been.

18

outcome of the proceeding.” Strickland v. Washington,

466 U.S. 668, 689, 692 (1984). Put another way, the Sixth

Amendment guarantees the right to counsel “because it en-

visions counsel’s playing a role that is critical to the ability

of the adversarial system to produce just results.” /d. at

685.

Because the purpose of the Sixth Amendment is to en-

sure that the adversary process functions properly, the

Court’s Sixth Amendment decisions have focused not only

on the right of defendants to counsel, but also on “the

necessity of preserving society’s interest in the administra-

tion of criminal justice.” United States vy. Morrison, 449

U.S. 361, 364 (1981). Thus, the Court has noted, remedies

for Sixth Amendment violations “should be tailored to the

injury suffered from the constitutional violation and

should not unnecessarily infringe on competing interests,”

ibid., such as “ ‘the public interest in having the guilty

breught to book,’ ” id. at 366 n.3 (quoting United States v.

Blue, 384 U.S. 251, 255 (1966)).

When a defendant makes false statements on the stand,

he jeopardizes the very “ability of the adversarial system to

produce just results” that the Sixth Amendment is meant

to protect. The interest in guarding against the distortion

of the truth-seeking process, which is a principal goal of

the Sixth Amendment, counsels strongly against unneces-

sarily handicapping the advocates in their ability to expose

false evidence.

The use of prior inconsistent statements is one of the

most effective techniques available to the advocate to ex-

pose perjury; indeed, the admissibility of prior inconsis-

tent statements for impeachment purposes no doubt pre-

vents much perjured testimony from ever being offered,

by dissuading witnesses who otherwise would be tempted

to fabricate or shade their testimony. The use of the fruits

of pretrial interrogation for impeachment purposes — even

.

19

when that evidence would be barred from the govern-

ment’s case in chief—is therefore not at odds with the

basic purpose of the Sixth Amendment to “protect{]

against unfairness by preserving the adversary process in

which the reliability of proffered evidence may be tested in

cross-examination.” Nix, 467 U.S. at 446.

Nor is there anything fundamentally unfair about per-

mitting impeachment in these circumstances. As this

Court noted many years ago, the advantages that a de-

fendant enjoys in a criminal case must be “counter-

weighted with * * * conditions to keep the advantage from

becoming an unfair and unreasonable one. The price a de-

fendant must pay for attempting to prove [a fact] * * * is

to throw open the entire subject which the law has kept

closed for his benefit and to make himself vulnerable

where the law otherwise shields him.” Michelson v. United

States, 335 U.S. 469, 478-479 (1948); see also Havens, 446

U.S. at 627-628 (“It is essential * * * to the proper func-

tioning of the adversary system that when a defendant

takes the stand, the government be permitted proper and

ffective cross-examination in an attempt to elicit the

truth.”).

The defendant has substantial control over the ability of

the prosecution tc make use of pretrial statements for im-

peachment purposes. The prosecution can offer such prior

statements only after the defendant, with the assistance of

counsel, makes a voluntary decision to testify. Moreover,

impeachment is permissible only if the defendant gives

testimony that contradicts his previous statements. Thus,

defense counsel can predict, and to a significant extent

control, the possible impeachment use of prior statements.

See Jenkins v. Anderson, 447 U.S. 231, 238 (1980). In ad-

dition, the defendant can explain the circumstances under

which the impeaching statements were made, and defense

counsel can ensure that the defendant’s explanation of any

inconsistency is fully aired. Presumably, the jury will be

20

able to recognize honest inconsistencies and appropriately

discount the prosecution’s reliance on minor discrepancies

among the defendant’s statements.

In sum, the introduction of uncounseled statements for

impeachment purposes does not risk denying the defend-

ant “a fair opportunity to present a defense at the trial

itself.” Wade, 388 U.S. at 226. The limited use of un-

counseled statements for impeachment leaves “no effect of

a constitutional dimension which needs to be purged to

make certain that respondent has been effectively

represented and not unfairly convicted.” Morrison, 449

U.S. at 366.

B. A Violation Of The Prophylactic Rule Established By

Michigan v. Jackson ts Adequately Deterred By Excluding

Improperly Obtained Evidence From The Government's

Case In Chief

Even if the Court is not prepared to hold that the fruits

of an uncounseled pretrial interrogation should always be

admissible.for impeachment purposes, it should still up-

hold the admission of such evidence in a case such as this

one, where the court found not a direct violation of the

Sixth Amendment, but only a violation of the prophylactic

rule of Michigan v. Jackson, 475 U.S. 625 (1986).

In Jackson, the Court held that once a defendant’s Sixth

Amendment right to counsel had attached and the defend-

ant had requested counsel, “any [subsequent] wa ver of the

defendant’s right to counsel for [a] police-initiated inter-

rogation is invalid.” 475 U.S. at 636. The Court’s conclu-

sion was an explicit application of the rule it had estab-

lished to safeguard the Fifth Amendment privilege against

compelled self-incrimination in Edwards v. Arizona, 451

U.S. 477 (1981). There, the Court held that a suspect in

custody who had “ ‘expressed his desire to deal with the

police only through counsel, is not subject to further in-

21

terrogation by the authorities until counsel has been made

available to ' ‘m, unless the accused himself initiates fur-

ther communication, exchanges, or conversations with the

police.’ ” Jackson, 475 U.S. at 626 (quoting Edwards, 451

U.S. at 484-485).

Edwards establishes a “prophylactic rule,” as does

Miranda, to protect the Fifth Amendment privilege

against compulsory self-incrimination. Solem, 465 U.S. at

644; see Edwards, 451 U.S. at 484 (“additional

safeguards” necessary to protect privilege when suspect

has requested counsel); Jackson, 475 U.S. at 639 (Edwards

provides “second layer of protection” for the Fifth

Amendment privilege). The Court in Jackson, expressly

recognizing that Edwards established a “bright-line rule to

safeguard pre-existing rights,” adopted the “same rule” on

the ground that “the need for additional safeguards [is] no

less clear{] when the request for counsel is made at an ar-

raignment and when the basis for the claim is the Sixth

Amendment.” Jackson, 475 U.S. at 626, 636 (emphasis

added). Thus the Jackson rule, like the rules in Miranda

and Edwards, is a prophylactic measure.®

This Court has already determined that violations of the

prophylactic rule established by Miranda to guard the

* The prophylactic character of the rule in Jackson is evidenced by

the fact that the rule is triggered only by a request for counsel: despite

the fact that a// defendants have a Sixth Amendment right to counsel

after “the initiation of adversary judicial proceedings” (United States

v. Gouveia, 467 U.S. 180, 187-188 (1984)), only those who make an

explicit request for counsel receive the benefits of the Jackson no-

waiver rule. See Jackson, 475 U.S. at 633 n.6 (right to counsel does

not turn On request; but “the defendant’s request for counsel [func-

tions} as an extremely important fact in considering the validity of a

subsequent waiver in response to police-initiated interrogation”); id.

at 639-642 (Rehnquist, J., dissenting) (criticizing the linkage of the

Jackson no-waiver rule to a request for counsel when the right to

counsel does not depend on a request for counsel).

22

Fifth Amendment are adequately deterred by excluding

improperly obtained evidence from the government’s case

in chief. In Harris v. New York, supra, the Court allowed

a defendant’s trial testimony about a series of drug sales he

made to an undercover officer to be impeached on cross-

examination with statements the defendant made im-

mediately after arrest and before receiving Miranda warn-

ings. The Court came to an identical conclusion in Oregon

v. Hass, supra, where it allowed impeachment with in-

culpatory information taken from a suspect after he had

been given Miranda warnings and had requested a lawyer.

In both cases, the Court reasoned that where the cir-

cumstances do not indicate that a defendant’s constitu-

tional privilege against compelled self-incrimination has

been violated,’ the importance of the “search for truth in a

criminal case” (Hass, 420 U.S. at 722) outweigns the deter-

rent value of extending the exclusion of evidence that is

already barred from the prosecution’s affirmative case.

Hass, 420 U.S. at 722-724; Harris, 401 U.S. at 224-226.

The same balance must be struck in this case. The

Jackson presumption — that if the government initiates an

exchange with a defendant who has requested counsel the

defendant cannot be found to have waived his Sixth

Amendment right to counsel—is deliberately overbroad.

Like Miranda’s “preventive medicine,” it provides a

remedy even to those defendants who have suffered no

constitutional wrong. Oregon v. Elstad, 470 U.S. 298, 309

(1985). It is enough that Jackson, like Miranda, bars

’ As we have noted (pages 12-13, supra), statements taken in viola-

tion of the Fifth Amendment itself, rather than its prophylactic

safeguards, can never be used at trial. New Jersey v. Portash, 440 U.S.

450 (1979). Because the use of compelled self-incriminating testimony

violates the text of the Amendment, the Court has held that “[bjalanc-

ing [of the kind done in Harris and Hass] is not simply unnecessary. It

is impermissible.” Portash, 440 U.S. at 459.

23

the introduction in the government’s case in chief of

evidence obtained in violation of its rule.*

This Court’s recent decision in Patterson v. Illinois, 108

S. Ct. 2389 (1988), underscores the strength of the analogy

to Harris and Hass by emphasizing the close parallel be-

tween the principles governing the waiver of Fifth and

Sixth Amendment rights in the case of uncounseled pretrial

interrogations. The Court in Patterson held that in that

setting Sixth Amendment rights are not intrinsically more

difficult to waive than Fifth Amendment rights, and that

the standard Miranda warnings are sufficient to support a

waiver of both rights. 108 S. Ct. at 2398. As the Court ex-

plained, an attorney serves the same “limited purpose” in

custodial interrogation whether the interrogation occurs

before or after the initiation of formal charges. There is no

“substantial difference between the usefulness of a lawyer

to a suspect during custodial interrogation, and his value

to an accused at postindictment questioning.” /bid.; see

* Once the balance has been struck allowing the use of improperly

obtained evidence to impeach, the admission of the evidence in any

particular case depends on whether it is clear that the defendant is

aware of the right to counsel and yet voluntarily makes a statement.

See Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (establishing as stand-

ard for waivers of counsel that action must not only be voluntary, but

must also constitute a knowing and intelligent “relinquishment or

abandonment of a known right or privilege”). As the Court has de-

cided in the Fifth Amendment context, any statement would be ad-

missible for impeachment if it met this “ ‘old’ due process volun-

tariness test.” See Oregon v. Elstad, 470 U.S. 298, 308-309 (1985).

Respondent's waiver satisfied that standard. This Court's decision

in Patterson v. Illinois, 108 S. Ct. 2389, 2397 (1988), makes it clear

that Miranda warnings “sufficiently apprise{] [a defendant] of the

nature of his Sixth Amendment rights, and of the consequences of

abandoning those rights.” Respondent received full Miranda warnings

prior to his September 9 interview, and he indicated his understanding

of them.

24

also id. at 2395-2396 & n.6; cf. Ash, 413 U.S. at 312.

There should therefore be no difference in the conse-

quences that follow the violation of the prophylactic rule

established by Miranda, and those that follow the viola-

tion of the parallel prophylactic rule established by

Jackson.°

CONCLUSION

The judgment of the Michigan Court of Appeals should

be reversed.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

CHRISTINE DESAN HUSSON

Assistant to the Solicitor General

J. DOUGLAS WILSON

Attorney

APRIL 1989

* Although the issue is not before this Court, it is not even clear in

this case that the police violated the rule of Michigan v. Jackson,

supra. Although the matter is not developed in detail in the record, it

appears that respondent initiated the exchange with the police on

September 9 (see Pet. App. 3a; J.A. 32-33; Tr. 117) and that he re-

ceived complete Miranda warnings, which were sufficient to justify a

waiver of his Sixth Amendment rights (see Patterson v. Illinois,

supra). While the Michigan Court of Appeals did not explain its

reason for finding that Michigan v. Jackson had been violated, it may

be that the court regarded respondent's reference to his lawyer as a re-

quest for counsel and the police officer's statement that respondent

did not need +o consult with his lawyer as constituting an initiation of

interrogation despite a request for counsel, in violation of the Jackson

rule.

we US GOVERNMENT PRINTING OFFICE 1989— 241 699/00219

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