Amicus Curiae Brief — Dickerson v. United States

Jan ot oev0 "/

eee eens...

No. 99-5525 JAN 28 2008

In THE

Supreme Court of the United States

CHARLES THOMAS DICKERSON,

7 Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF AMICI CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AND CALIFORNIA ATTORNEYS FOR CRIMINAL

JUSTICE IN SUPPORT OF PETITIONER

JOHN T. PHILIPSBORN

LAW OFFICES OF JOHN T.

PAUL M. SMITH *

DEANNE E. MAYNARD

PHILIPSBORN KiAL 8. YOUNG

507 Polk Street, Suite 250 MATTHEW HERSH

San Francisco, CA 94103 JENNER & BLOCK

(415) 771-3801 601 Thirteenth Street, N.W.

Counsel for Amicus Curiae Washington, D.C. 20005

California Attorneys for (202) 639-6000

Criminal Justice Lisa B. KEMLER

ZWERLING & KEMLER, P.C.

108 N. Alfred Street

P.O. Box 20900

Alexandria, VA 22320

(708) 684-8000

Counsel for Amicus Curiae

National Association of

Criminal Defense Lawyers

January 28, 2000 * Counsel of Record

———— ee enema

WiLson-Eras Printine Co., Inc. - (202) 789-0096 - WasnincTon, D.C. 20001

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ............000-0005. l

I. SECTION 3501 WAS NOT A

CONSTITUTIONAL EXERCISE OF

CONGRESSIONAL AUTHORITY ......... 3

A. Miranda Held That Some

Procedural Safeguards Are

Constitutionally Required Prior

To Custodial Interrogation ............. 3

B. The “Prophylactic” Nature of

Miranda’s Holding Does Not

Undermine its Constitutional

ir ck tke es deine dwdkes osececss 8

C. Subsequent Supreme Court Cases

Do Not Undermine Miranda’s

Constitutional Status................. 13

D. The Theory of “Constitutional

Common Law” Provides No

Support for the Legislative

Overruling of Miranda ............... 15

E. Section 3501 Is an Unconstitutional

Attempt to Overrule the Constitutional

Holding of Miranda, Not a

Procedural Safeguard That Is

“At Least as Effective” as Those

Suggested in Miranda. ...............

II. THIS COURT SHOULD NOT

REVISIT MIRANDA’S REQUIREMENT

OF PROCEDURAL SAFEGUARDS ......

A. Miranda Sets Forth a Workable

PP

B. Reliance Interests Support

Adherence to Miranda’s Dictates .......

C. Developments in the Law Have

Not Rendered Miranda’s Requirement

COMED ose sea0eeanbecs see

D. The Factual Premises Underlying

Miranda Remain Valid and Thus

Support Affirming That Decision .......

CONCLUSION

18

!

TABLE OF AUTHORITIES

CASES

Anders v. California, 386 U.S. 738 ae 19

Arizona v. Mauro, 481 U.S. 520 (1987) .............. 6

Arizona v. Roberson, 486 U.S. 675 (1988) ..... 6, 13, 22

Ashcraft v. Tennessee, 322 U.S. 143 (1944) .......... 12

Berkemer v. McCarty, 468 U.S. 420 (1984) ........ 7,22

Blackledge v. Perry, 417 U.S. 21 (1974) ............ 12

City of Boerne v. Flores, 521 U.S. 507 (1997) ........ 19

Bram v. United States, 168 U.S. 532 (1897) .......... 4

Brandenburg v. Ohio, 395 U.S. 444 (1969) .......... 15

Bruton v. United States, 391 U.S. 123 Fe 12

California Attorney's for Criminal Justice v. Butts,

195 F.3d 1039 (9th Cir. 1999), amended by,

No. 97-56499, F.3d, 2000 WL 1639

i Te ced coca cccceceucs l

California v. Peevy, 953 P.2d 1212 (Cal.), cert. denied,

DT oe asewwne l

California v. Prysock, 453 U.S. 355 (1981) ........... 6

Colorado v. Connelly, 479 U.S. 157 (1986) .......... 6

Colorado v. Spring, 479 U.S. 564 (1987) ............ 6

Connecticut v. Barrett, 479 U.S. 523 (1987) .......... 6

Duckworth v. Eagan, 492 U.S. 195 (1989) ........ 7, 26

iv

Edwards v. Arizona, 451 U.S. 477 (1981) ......... 6, 12

Estelle v. Smith, 451 U.S. 454 (1981) ...... 000000... 7

Fare v. Michael C., 442 U.S. 707 (1979) ............. 6

Frazier v. Cupp, 394 U.S. 731 (1969) ............... 8

Freedman v. Maryland, 380 U.S. 51 (1965) ......... ll

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) ..... 10

Gideon v. Wainwright, 372 U.S. 335 (1963) ......... 12

Harris v. New York, 401 U.S. 222 (1971) ......... 6, 14

Harris v. Rivera, 454 U.S. 339 (1981)... 2.0... eee. 7

Illinois v. Perkins, 496 U.S. 292 (1990) .............. 6

Johnson v. New Jersey, 384 U.S. 719 (1966) .......... 6

Lovell v. City of Griffin, 303 U.S. 444 (1938) ........ ll

Mapp v. Ohio, 367 U.S. 643 (1961) .............0.. 26

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 13, 19

Marcus v. Search Warrants, 367 U.S. 717 (1961) ..... 11

McNeil v. Wisconsin, 501 U.S. 171 (1991) ........... 6

Michigan v. Jackson, 475 U.S. 625 (1986) .......... 12

Michigan v. Mosley, 423 U.S. 96 (1975) ............. 6

Michigan v. Tucker, 417 U.S. 433 (1974) ... 7, 13, 14,24

Michigan v. Tyler, 436 U.S. 499 (1978) ............. 15

Minnesota v. Murphy, 465 U.S. 420 (1984) ........... 6

Minnick v. Mississippi, 498 U.S. 146 (1990) .......... 6

Miranda v. Arizonia, 384 U.S. 436 (1966)

Vv

Moran v. Burbine, 475 U.S. 412 (1986) .............. 7

Mu'Min v. Virginia, 500 U.S. 415 (1991) ............. 7

New York Times Co. v. Sullivan, 376 U.S. 254

SED: ci.gun otk Vedebia wkebdebadbdedecesces 9, 10

New York v. Quarles, 467 U.S. 649 (1984) ...... passim

North Carolina v. Butler, 441 U.S. 369 (1979) ........ 6

North Carolina v. Pearce, 395 U.S. 711 (1969)....... 12

Oregon v. Bradshaw, 462 U.S. 1039 (1983) .......... 6

Oregon v. Elstad, 470 U.S. 298 (1985) ......... passim

Oregon v. Haas, 420 U.S. 714 (1975) .......-...245. 6

Oregon v. Mathiason, 429 U.S. 492 (1977) ........... 6

Orozco v. Texas, 394 U.S. 324 (1969) ...........065. 6

Payne v. Tennessee, 501 U.S. 808 (1991) ........ 20, 21

Pennsylvania v. Muniz, 496 U.S. 582 (1990) .......... 6

Planned Parenthood v. Casey, 505 U.S. 833

SED Hits b One Ri ceecéresVeseaseccensees passim

Rhode Island v. Innis, 446 U.S. 291 (1980) ..... a 6

Shuttlesworth v. City of Birmingham, 382 U.S. 87

SED &h06neeeeeessdneeseunteeeesronceness ll

Shuttlesworth v. City of Birmingham, 394 U.S. 147

DE ucccacsedcupeocebndeeeteresscenvesseesi il

Smith v. Illinois, 469 U.S. 91 (1984) ............+5-. 6

Smith v. Phillips, 455 U.S. 209 (1982) .............-- 7

Smith v. Robbins, No. 98-1037, 2000 WL 33469 (U.S.

DIE os ciesteatedieb

Speiser v. Randall, 357 U.S. 513 (1958) ............

Stansbury v. California, 511 U.S. 318 (1994) .........

Stein v. New York, 346 U.S. 156 (1953), overruled

on other grounds, Jackson v. Denno, 378 U.S. 368

ED hutadecenuddddsadescauibaticubesdée cnc.

Thompson v. Keohane, 516 U.S. 99 ts tnsdndeaoe

United States v. International Business Machine Corp.,

Gar HPN Conc veddnehedeuseésdeucn cc 21

Vasquez v. Hillery, 474 U.S. 254 (1986) ......... 20, 29

Withrow v. Williams, 507 U.S. 680 (1993) ....... passim

STATUTES AND CONSTITUTION

EE Riveceeuelectuccbe soo go passim

SSR SEE eA 8

U.S. Const. amend. Vo... oo... cece cece ee ece. 3

LEGISLATIVE MATERIAL

S. Rep. No. 90-1097 (1968), reprinted in 1968

| Ea Re 18

Vii

MISCELLANEOUS

The Federalist No. 51 (J. Madison) ................ 17

Yale Kamisar, Can (Did) Congress ‘Overrule’ Miranda?,

85 Cornell L. Rev. (forthcoming April 2000) ....... 19

Henry P. Monaghan, Foreward: Constitutional Common

Law, 89 Harv. L. Rev. 1 (1975)............... 16, 17

Thomas S. Schrock & Robert C. Welsh, Reconsidering _

the Constitutional Common Law, 91 Harv. L. Rev.

PTS sane b4nau cheb ata denbes toed de a 17

Stephen J. Schulhofer, Miranda's Practical Effect:

Substantial Benefits and Vanishingly Small Social

Costs, 90 Nw. U. L. Rev. 500, 501 (1996) ......... 25

Stephen J. Schulhofer, Reconsidering Miranda,

54 U. Chi. L. Rev. 435 (1987) ................. 9,22

David A. Strauss, The Ubiquity of Prophylactic Rules,

35 U. Cal. L Rev. 190 (19GB)... ccc cece cccee 9

Charles D. Weisselberg, Saving Miranda, 84 Cormell

POE vch ccuccccvebaadostecaced 9, 28

INTEREST OF AMICI CURIAE

The National Association of Criminal Defense Lawyers

(“NACDL”) is a non-profit corporation with more than 10,000

members nationwide and 28,000 affiliate members in fifty

states, including private criminal defense lawyers, public

defenders, and law professors. Among NACDL’s objectives

are to ensure that appropriate measures are taken to safeguard

the rights of all persons involved in the criminal justice system

and to promote the proper administration of justice. Because

the Fourth Circuit’s decision deprives citizens in that Circuit of

their Fifth Amendment right against self-incrimination, the

NACDL respectfully submits this brief amicus curiae in

support of reversal.

California Attorneys for Criminal Justice (“CACY”) is

the largest organization of criminal defense lawyers in

California. Its membership includes both public defenders and

privately employed criminal defense lawyers. In the past

twenty-five years, CACJ has appeared as amicus curiae not

only in this Court, but in other courts throughout the United

States in cases important to the administration of justice.

Recently, CACJ has been involved in litigation related to the

issues presented in this case. Through its involvement in

California Atty’s for Criminal Justice v. Butts, 195 F.3d 1039

(9" Cir. 1999), amended by, No. 97-56499, _ F.3d ___, 2000

WL 1639 (9" Cir. Jan. 3, 2000), and California v. Peevy, 953

P.2d 1212 (Cal.), cert. denied, 119 S. Ct. 595 (1998), the

organization has attempted to bring to light certain law

1/ Letters of consent have been filed with the Clerk. Pursuant to Sup. Ct.

R. 37.6, amici state that no counsel for a party authored this brief in whole

or part and no person or entity, other than amici, their members, or their

counsel made a monetary contribution to the preparation or submission of

this brief.

2

3

enforcement practices apparently designed to attempt to

circumvent Miranda v. Arizona.

INTRODUCTION AND SUMMARY OF ARGUMENT

The Supreme Court is the final arbiter of the meaning

of the Constitution. In Miranda vy. Arizona, the Court

determined that custodial interrogation is inherently coercive,

that che Fifth Amendment requires procedural protections “to

notify the person of his right of silence and to assure that the

exercise of the right will be scrupulously honored,” and that in

the absence of such protections, no statements obtained can

constitutionally be admitted into evidence. 384 U.S. 436, 478-

79 (1966). Although the specific language of the “Miranda

warnings” is not constitutionally required, Miranda’s

requirement of some protection prior to interrogation is a

constitutional holding. That Miranda’s requirement of

procedural safeguards operates as a prophylactic of

constitutional rights in no way undermines Miranda’s

constitutional stature, and is similar to protective measures that

the Court has determined are required by the Constitution to

secure other constitutional rights. None of the cases relied

upon by the Fourth Circuit undermines this conclusion.

Congress cannot override Miranda’s interpretation of

what the Constitution requires. Section 3501 of Title 18

attempts to do just that. As the Fourth Circuit acknowledged,

Section 3501 attempts to reinstate the “totality of the

circumstances” case-by-case test that existed prior to Miranda,

Pet. App. 12a; it does not create procedural safeguards that are

equally effective to the warnings suggested in Miranda.

Because Section 3501 would allow admission of custodial

statements obtained in the absence of the procedura! protections

required by Miranda’s interpretation of the Constitution -- as

evidenced by the Fourth Circuit’s decision in this case -- the

statute is unconstitutional.

The Court should not overturn Miranda. Some

procedural safeguards at the time of custodial interrogation

continue to be essential to protect the Fifth Amendment

privilege in the broad run of cases. The warnings suggested by

the Miranda decision to fulfill that procedural requirement are

easy to administer and are ones on which all participants in the

criminal justice system have come to rely.

ARGUMENT

I. SECTION 3501 WAS NOT A CONSTITUTIONAL

EXERCISE OF CONGRESSIONAL AUTHORITY

A. Miranda Held That Some Procedural

Safeguards Are Constitutionally Required

Prior to Custodial Interrogation

The Fifth Amendment provides that no person “shall be

compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. As this Court recently

reaffirmed, the privilege against self-incrimination reflects

many of our fundamental values and most

notable aspirations: . . . our preference for an

accusatorial rather than an inquisitorial system

of criminal justice; our fear that self-

incriminating statements will be elicited by

inhumane treatment and abuses; . . . our respect

for the inviolability of the human personality

and of the right of each individual “to a private

enclave where he may lead a private life;” . . .

-_ * +

and our realization that the privilege, while

sometimes “a shelter to the guilty,” is often “a

protection to the innocent.”

Withrow v. Williams, 507 U.S. 680, 691-92 (1993) (citations

omitted). As such, the Fifth Amendment preserves, “by means

of a constitutional provision, principles of humanity and civil

liberty, which had been secured in the mother country only

after years of struggle, so as to implant them in our institutions

in the fullness of their integrity, free from the possibilities of-

future legislative change.” Bram v. United States, 168 U.S.

532, 544 (1897).

In Miranda vy. Arizona, the Court held that the

_ prosecution could not use any statement from custodial

interrogation of the defendant unless it could demonstrate “the

use of procedural safeguards effective to secure the privilege

against self-incrimination.” 384 U.S. at 444. The Court

revicwed the historical development of the privilege against

self-incrimination and concluded that “the privilege is fulfilled

only when the person is guaranteed the right to remain silent

unless he chooses to speak in the unfettered exercise of his own

will.” Jd. at 460 (citation and quotation omitted). The Court

determined that for this guarantee to be realized during the

“inherently compelling pressures” of custodial interrogation,

“the accused must be adequately and effectively apprised of his

rights and the exercise of those rights must be fully honored.”

Id. at 467. Although Miranda explicitly recognized that the

Constitution did not require the specific language of its

suggested warnings, the Court nevertheless made clear that the

Constitution did require some equally effective measures prior

to custodial interrogation if the statements were to be used

against the accused. Jd. Accordingly, Miranda’s constitutional

holding is not the now-familiar warnings themselves, but the

cet IO

ee ee

5

requirement of some such procedural safeguards to protect

against the inherently coercive atmosphere of custodial

interrogation.

The Fourth Circuit was therefore incorrect to construe

the entire Miranda decision as merely a rule of “evidence and

procedure” that could be overruled by an Act of Congress. Pet.

App. 13a-l4a. For one, contrary to the Fourth Circuit's

assertion, id. at 14a, the Miranda Court did not fail to state a

constitutional basis for its requirement of some procedural

safeguards. Rather, the Court stated explicitly -- in the very

first paragraph of its opinion -- that its decision was rooted in

the “Fifth Amendment to the Constitution.” 384 U.S. at 439.

Indeed, the Court took pains throughout its opinion to

underscore the constitutional values at stake, noting its

“concern for adequate safeguards to protect precious Fifth

Amendment rights,” id. at 457, describing “the Fifth

Amendment standard for compulsion which we implement

today,” id. at 461, and observing that its safeguards were

- necessary “to insure that what was proclaimed in the

Constitution had not become but a form of words.” Jd. at 444

(citation and quotation omitted).

Nor is the constitutional nature of Miranda’s

requirement that there be some procedural safeguards undercut

by its suggestion that States develop their own safeguards to

protect the privilege against self-incrimination, as the Fourth

Circuit erroneously asserted. Pet. App. 14a. As explained

above, although the Court did recognize that the Constitution

does not require “adherence to any particular solution,” 384

U.S. at 467, the Court was quick to point out that its safeguards

were to be observed “unless we are shown other procedures

which are at least as effective in apprising accused persons of

their right of silence and in assuring a continuous opportunity

6

to exercise it.” Jd. (emphasis added). To the Miranda Court,

there was little doubt that the judiciary, rather than the

legislature, would have the final word as to whether any

particular safeguards were constitutionally sufficient: “Where

rights secured by the Constitution are involved, there can be no

rule making or legislation which would abrogate them.” Jd. at

491.

That Miranda read the Constitution to require

procedural safeguards is further demonstrated by this Court’s

imposition of Miranda upon the States. Indeed, three of the

four cases decided in the Miranda opinion itself arose out of

State-court decisions. See id. at 491-99. Since then, the Court

has ordered ti.e exclusion of evidence on Miranda grounds in

at least seven State cases,” while applying Miranda (though

eventually permitting the use of challenged evidence) in nearly

two dozen others.” The Fourth Circuit did not attempt to

2/ See, e.g., Stansbury v. California, 511 U.S. 318 (1994); Minnick v.

Mississippi, 498 U.S. 146 (1990); Pennsylvania v. Muniz, 496 U.S. 582

(1990); Arizona v. Roberson, 486 U.S. 675 (1988); Smith v. Illinois, 469

U.S. 91 (1984); Edwards v. Arizona, 451 U.S. 477 (1981); Orozco v. Texas,

394 U.S. 324 (1969).

3/ See, e.g., McNeil v. Wisconsin, 501 U.S. 171 (1991); Illinois v. Perkins,

496 U.S. 292 (1990); Arizona v. Mauro, 481 U.S. 520 (1987); Colorado v.

Spring, 479 U.S. 564 (1987); Connecticut v. Barrett, 479 U.S. 523 (1987);

Colorado v. Connelly, 479 U.S. 157 (1986); Oregon v. Elstad, 470 U.S. 298

(1985); New York v. Quarles, 467 U.S. 649 (1984); Minnesota v. Murphy,

465 U.S. 420 (1984); Oregon v. Bradshaw, 462 U.S. 1039 (1983);

California v. Prysock, 453 U.S. 355 (1981); Rhode Island v. Innis, 446 U.S.

291 (1980); Fare v. Michael C., 442 U.S. 707 (1979); North Carolina v.

Butler, 441 U.S. 369 (1979); Oregon v. Mathiason, 429 U.S. 492 (1977);

Michigan v. Mosley, 423 U.S. 96 (1975); Oregon v. Haas, 420 U.S. 714

(1975); Harris v. New York, 401 U.S. 222 (1971); Johnson v. New Jersey,

384 U.S. 719 (1966). Though the Court held in each of these cases that

—

7

explain how Miranda could have been applied so routinely to

the States if the requirement of procedural safeguards were not

constitutionally compelled, acknowledging only that it raised

“an interesting academic question.” Pet. App. 24a n.21. But

far from being an “academic question,” the matter is rather one

of long-settled constitutional law. As this Court has made clear

on many occasions, “[fJederal courts hold no supervisory

authority over state judicial proceedings and may intervene

only to correct wrongs of constitutional dimension.” Smith v.

Phillips, 455 U.S. 209, 221 (1982) (emphasis added)” The

meaning of these words could not be more plain: Miranda’s

requirement of safeguards must be rooted in the Constitution,

or the States would be free to ignore it.

Finally, the constitutional nature of Miranda’s

requirement of procedural safeguards is further evidenced by

the Court’s consideration of Miranda claims on federal habeas

review. The Court has entertained a number of habeas claims

on the basis of Miranda, the latest as recently as 1995.

Miranda did not bar the use of the challenged evidence, at no time did the

Court suggest that it lacked the power to apply Miranda to a State-court

decision.

4/ See also Harris v. Rivera, 454 U.S. 339, 344-45 (1981) (“Federal judges

have no general supervisory power over state trial judges; they may not

require the observance of any special procedures except when necessary to

assure compliance with the dictates of the Federal Constitution.”); Mu ‘Min

v. Virginia, 500 U.S. 415, 422 (1991) (for cases tried in State courts, “our

authority is limited to enforcing the commands of the United States

Constitution”).

5/ Thompson v. Keohane, 516 U.S. 99 (1995). See also Withrow v.

Williams, 507 U.S. 680 (1993); Duckworth v. Eagan, 492 U.S. 195 (1989);

Moran v. Burbine, 475 U.S. 412 (1986); Berkemer v. McCarty, 468 U.S.

420 (1984); Estelle v. Smith, 451 U.S. 454 (1981); Michigan v. Tucker, 417

Though the application of Miranda to habess claims has

occasionally brooked dissent, see, e.g., Withrow, 507 U.S. at -

650-57 (O’Connor, J., concurring in part and dissenting in

part), no Justice of this Court has ever suggested that habeas

petitioners who were denied adequate safeguards during the

course of their custodial interrogations are not “in custody in

violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). The reason for this is once again

clear: Miranda’s requirement of some procedural safeguards is

one of constitutional origin.

B. The “Prophylactic” Nature of Miranda’s

Holding Does Not Undermine its

Constitutional Stature

The Fourth Circuit mistakenly relied on this Court’s

occasional suggestion that the Miranda requirement of

procedural safeguards is not a constitutional “right,” but instead

functions as a “prophylactic” protecting underlying Fifth

Amendment rights. Pet. App. 14a. The Court has indeed

recognized that excluding confessions obtained in the absence

of the required procedural protections can, on occasion,

overprotect the right against compelled self-incrimination. See

Oregon v. Elstad, 470 U.S. 298, 307 (1985). But the Court also

has recognized that, absent some such procedural safeguards,

it is inevitable that the Fifth Amendment rights of many

persons will be violated. Contrary to the conclusion of the

Fourth Circuit, Miranda is no less a constitutional requirement

U.S. 433 (1974); Frazier v. Cupp, 394 U.S. 731 (1969).

-

9

merely because it is designed to protect constitutional rights in

the broad run of cases.*

Although Miranda itself described its requirement as

“procedural safeguards,” 384 U.S. at 444, the Miranda Court

clearly believed its “prophylaxes” were required by the

Constitution. Given the inherently coercive nature of custodial

interrogation, Miranda erected under the Fifth Amendment an

irrebuttable “presumption of compulsion” in the absence of ex

ante procedures to protect the privilege against self-

incrimination. Elstad, 470 U.S. at 307. It did so -- despite the

fact that some custodial confessions of some individuals may

not in fact be “coerced,” even without warnings or other

comparable procedural safeguards -- based on a judgment about

the institutional competence of the courts to assess compulsion

on a post hoc basis. The Court recognized that, in the absence

of procedures to ensure notice of the applicable rights, the

courts would frequently fail to identify those cases where subtle

coercion was exploited by the police.

The requirement of prophylactic safeguards in Miranda

is consistent with many other constitutional decisions in which

the Court, based on its assessment of practical realities, has

demanded broad-based standards or procedures to ensure the

vindication of constitutional rights. For example, in New York

Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court

interpreted the First Amendment to require, as a “safeguard{]”

to ensure the protection of the constitutional right to freedom

of speech, that a public official prove “actual malice” to recover

6/ See, e.g., Charles D. Weisselberg, Saving Miranda, 84 Cornell L. Rev.

109, 153-62 (1998); Stephen J. Schulhofer, Reconsidering Miranda, 54 U.

Chi. L. Rev. 435 (1987); David A. Strauss, The Ubiquity of Prophylactic

Rules, 55 U. Chi. L. Rev. 190 (1988).

10

damages for a defamatory falsehood. See id. at 264-65, 279.

In so holding, the Court rejected a rule that would have allowed

damages unless the speaker could prove the truth of his factual

assertions, i.e., that his speech was actually protected by the

First Amendment. See id.; see also Gertz v. Robert Welch, Inc.,

418 U.S. 323, 340 (1974) (“there is no constitutional value in

false statements of fact”). The Court did so based on its

empirical judgment that, “{u}nder such a rule, would-be critics

of official conduct may be deterred from voicing their criticism,

even though it is believed to be true and even though it is in

fact true, because of doubt whether it can be proved in court or

fear of the expense of having to do so.” Sullivan, 376 US. at

279.

Analogous to its holding in Miranda, the Court

concluded that the “breathing space” afforded by its “actual

malice” test, see id. at 271-72 -- which necessarily overprotects

First Amendment rights in fact -- was necessary “to provide the

safeguards for freedom of speech and of the press that are

required by the First and Fourteenth Amendments in a libel

action brought by a public official against critics of his official

conduct.” Jd. at 264-65. This prophylactic rule is based in part

on the practical limitations of attempting to judge each case

individually to determine whether the libel action would

infringe on First Amendment rights. See Gertz, 418 U.S. at

343-44 (“Because an ad hoc resolution of the competing

interests at stake in each particular case is not feasible, we must

lay down broad rules of general application.”). The

prophylactic nature of the New York Times v. Sullivan holding,

however, does not alter its constitutional status, because the

Court has recognized that, without this protection,

constitutional rights will frequently be trampled.

~~

-

11

Similarly, in a line of cases beginning with Lovell v.

City of Grifjin, 303 U.S. 444 (1938), the Court has held that, in

the absence of “narrow, objective, and definite standards to

guide . . . licensing authorit[ies],” the regulation of speech

violates the First Amendiaent, Shuttlesworth v. City of

Birmingham, 394 U.S. 147, 150-51 (1969), even if in fact that

speech might have been properly subject to regulation. See id.

at 151 (“[A] person faced with such an unconstitutional

licensing law may ignore it and engage with impunity in the

exercise of the right of free expression for which the law

purports to require a license.””). This rule is based in part on the

Court’s empirical assessment that, in practice, licensing

officials who exercise standardless discretion are likely to

infringe on constitutionally protected speech. See

Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90-91

(1965) (noting that a standardless statute is “[i}]nstinct with

. . ever-present potential for arbitrarily suppressing First

Amendment liberties”). See also Freedman v. Maryland, 380

U.S. 51, 56 (1965) (“[OJne has standing to challenge a statute

on the ground that it delegates overly broad licensing discretion

to an administrative office, whether or not his conduct could be

proscribed by a properly drawn statute, and whether or not he

applied for a license”); Marcus v. Search Warrants, 367 U.S.

717, 731 (1961) (“Missouri’s procedures as applied in this case

lacked the safeguards which due process demands to assure

nonobscene material the constitutional protecticn to which it is

entitled”); Speiser v. Randall, 357 U.S. 513, 524 (1958)

(“(C}riminal advocacy can be suppressed or deterred, but it is

clear that the State which attempts to do so must provide

procedures amply adequate to safeguard against invasion of

speech which the Constitution protects”) (citations omitted).

_ As Miranda illustrates, the Court has seen a need for

similar prophylactic rules in the area of constitutional criminal

12

procedure. Subsequent to Miranda, for example, the Court

imposed an additional protective layer to the privilege against

self-incrimination in the case of Edwards v. Arizona, 451 U.S.

477 (1981), holding that a suspect who has asked for counsel

will not be deemed to have relinquished that right unless the

suspect “initiates further communication, exchanges or

conversation” with authorities. Jd. at 485. A similar protective

measure governs the Sixth Amendment right to counsel, which

may not be deemed waived unless the suspect has initiated a

conversation with the police. Michigan v. Jackson, 475 U.S.

625 (1986).” Other examples include the conclusive

presumption that an indigent has a need for appointed counsel,

regardless of his maturity, background, or education, Gideon v.

Wainwright, 372 U.S. 335 (1963), the presumption that a judge

who imposes a harsher sentence on retrial after reversal of an

earlier conviction has been motivated by vindictiveness, North

Carolina v. Pearce, 395 U.S. 711 (1969), and a like

presumption regarding prosecutors who charge a more serious

offense at a defendant’s rightful retrial. Blackledge v. Perry,

417 US. 21 (1974)¥

7/ The Sixth Amendment is also the source of the presumption, derived

from the Confrontation Clause, that no limiting instruction can cure the

introduction into evidence of a nontestifying codefendant’s confession in

a joint trial. Bruton v. United States, 391 U.S. 123 (1968).

8/ Interestingly, the Court also adhered to a number of prophylactic rules

in evaluating claims of coerced confessions under the Fourteenth

Amendment’s “involuntariness” standard, which prior to Miranda was the

primary source of regulation of State custodial interrogations. See, e.g.,

Ashcraft v. Tennessee, 322 U.S. 143, 154 n.9 (1944) (holding that the

questioning of a suspect for 36 hours straight “preclude[s] a holding that he

acted voluntarily” in confessing, irrespective of any other factor); Stein v.

New York, 346 U.S. 156, 182 (1953) (“Physical violence or threat of it by

the custodian of a prisoner during detention . . . invalidates confessions that

would otherwise be convincing. ... When present, there is no need to weigh

or measure its effects on the will of the individual victim.”), overruled on

13

-

The empirical assessments made in Miranda are no

different, and that decision’s prophylactic safeguards are no

_less constitutionally required. Whatever the procedures are

called, “[a] major purpose of the Court’s opinion in Miranda v.

Arizona . . . was ‘to give concrete constitutional guidelines for

law enforcement agencies and courts to follow.”” Arizona v.

Roberson, 486 U.S. 675, 680 (1988) (emphasis added). As the

Miranda Court explained, without such specific safeguards

implementing the Constitution, “[i]ts general principles would

have little value and be converted by precedent into impotent

and lifeless formulas.” 384 U.S. at 443 (citation and quotation

omitted). As such, the holding in Miranda is precisely the type

of constitutional interpretation envisioned in Marbury v.

Madison. See 5 U.S. (1 Cranch) 137, 177 (1803) (“It is

emphatically the province and duty of the judicial department

to say what the law is. Those who apply the rule to particular

cases, must of necessity expound and interpret that rule.”).

“Cc. Subsequent Supreme Court Cases Do Not

Undermine Miranda’s Constitutional Status

The Fourth Circuit relied upon several Supreme Court

cases subsequent to Miranda for its conclusion that “it is

certainly well established that the failure to deliver Miranda

warnings is not itself a constitutional violation.” Pet. App. 14a-

16a (discussing Harris v. New York, 401 U.S. 222 (1971);

Michigan v. Tucker, 417 U.S. 433 (1974); New York v.

Quarles, 467 U.S. 653 (1984); and Oregon v. Elstad, 470 U.S.

298 (1985)) (citation omitted). But the cases cited in no way

suggest that Miranda can be legislatively overruled.

other grounds, Jackson v. Denno, 378 U.S. 368 (1964).

14

None of the holdings in these cases poses any threat at

all to the central holding of Miranda, which is that statements

taken without procedural protections may not be used in the

State’s case in chief. In Harris, the Court allowed such

statements to be used for impeachment purposes, 401 U.S. at

225-26, but the Court was careful to reaffirm explicitly the

Miranda Court’s holding that these statements could never be

used in the case in chief. /d. at 224. In Tucker and Elstad the

Court held that evidence constituting the “fruit” of a confession

taken from a suspect during an interrogation lacking adequate

safeguards could properly be admitted against the suspect in

question;” in both cases, again, the Court was careful to make

clear that the confession itself was not permitted in the

prosecution’s case in chief. Tucker, 417 U.S. at 445; Elstad,

470 U.S. at 306 n.1, 317. And in Quarles, the Court held that

procedural safeguards were not necessary where the custodial

questioning of a suspect was compelled by “overriding

considerations of public safety,” 467 U.S. at 651; the Court

made clear that its exception was intended to be a narrow one.

Id. at 659 n.8.

Nor do any of these cases, when read in their proper

light, cast doubt on the factual predicate of Miranda -- the

recognition that custodial interrogations are inherently

coercive. See 384 U.S. at 458. Instead, the Court appears to

have relied on a practical assessment that the use of confessions

9/ In Tucker the Court held that where a suspect’s confession in violation

of Miranda \ed police to a witness, it was permissible for the State to

introduce the testimony of that witness. Tucker, 417 U.S. at 450. In Elstad

the Court held that where a suspect confessed prior to being given Miranda

warnings, the police could properly warn the suspect under Miranda and

then obtain a usable confession, even if the second confession was in effect

a “fruit” of the first. Elstad, 470 U.S. at 318.

15

- to impeach or for their evidentiary “fruits” is sufficiently

removed from the core concerns of the Fifth Amendment that

Miranda need not be extended that far. In essence, the Court

has recognized that the constitutional requirements governing

custodial confessions cannot be applied without reference to the

uses to which the government intends to put the confessions.

See Quarles, 467 U.S. at 668-69 (O’Connor, J., concurring in

the judgment in part and dissenting in part) (“The Miranda

decision quite practically does not express any societal interest

in having those warnings administered for their own sake.

Rather, the warnings and waiver are only required to ensure

that ‘testimony’ used against the accused at trial is voluntarily

given.”’). It is one thing to erect a prophylactic rule barring use

of a potentially coerced confession as direct evidence against

the speaker. That is a quintessential form of self-incrimination.

But the constitutional calculus is quite different when the use

of the confession is much more indirect.“

D. The Theory of “Constitutional Common

Law” Provides No Support for the

Legislative Overruling of Miranda

The Court should decline the invitation posed by

amicus curiae Washington Legal Foundation to hold that

Miranda is a form of “constitutional common law” that can be

10/ Asnoted, the Fourth Circuit also commented that the Court cast doubt

on Miranda's constitutional basis when it recognized a “public safety”

exception in Quarles. But public safety exceptions are a regular appendage

to many well-established constitutional rights. See, e.g., Michigan v. Tyler,

436 U.S. 499, 509 (1978) (finding an exigent-circumstances exception to

the warrant requirement of the Fourth Amendment), Brandenburg v. Ohio,

395 U.S. 444, 447-48 (1969) (setting out the terms by which a State may

abridge the right of free speech in order to avoid “imminent lawless

action”).

16

legislatively overruled. Brief Amicus Curiae of Washington

Legal Foundation in Partial Support of Petitioner, at 9 (filed

Nov. 1, 1999) (citation omitted) (“WLF Brief’). Drawing

largely on a twenty-five-year-old law review article,’

proponents of this theory assert that so-called “constitutional

common law,” as a form of judge-made law designed to

advance constitutional values, shares the same ranking as

federal statutes in our constitutional framework -- capable of

being imposed upon the States, but subject to revision at any

time by Congress. To its proponents, this argument explains at

one stroke why Miranda has been applied to the States and why

Congress, in the form of Section 3501, was empowered to

overrule it.

But this argument either proves too little or proves too

much. To the extent that it merely recognizes the power of this

Court to elaborate prophylactic rules needed to enforce the

Constitution, amici agree that such a power exists, and have

already set forth the reasons why Congress (although perhaps

empowered to suggest alternative prophylactic rules) cannot

simply repeal them. But to the extent the argument is that

federal courts can make up common law, subject to legislative

repeal, in any area generally touched by the Constitution, it is

simply wrong.

Not even the article relied upon by amicus goes that far.

It recognized that, even if the specific language of the warnings

suggested by the Miranda Court are themselves accurately

described as “constitutional common law,” “Miranda. . . holds

that ‘adequate’ safeguards are constitutionally required, and

ll/_ Henry P. Monaghan, Foreward: Constitutional Common Law, 89

Harv. L. Rev. 1 (1975).

17

this puts a check on what Congress may do.” Henry P.

Monaghan, Foreward: Constitutional Common Law, 89 Harv.

L. Rev. 1, 42 n.217 (1975). Thus understood, the

“constitutional common law” theory is of no more service to

amicus curiae than the Miranda opinion itself -- which permits

legislative experimentation so long as suitable protections

remain.

Moreover, acceptance of amicus curiae’s vision of

“constitutional common law” would represent a dangerous

departure from. long-accepted constitutional principles. It

would upset ihe federal-state balance by providing the Court

with an almost unrestrained power to meddle in affairs

previously thought to be within the purview of the States. It

would upset the separation-of-powers doctrine by blurring the

lines between judicial and legislative authority, defying the

Framers’ vision of distinct spheres of authority. See The

Federalist No. 51 (J. Madison). And by granting the legislature

a license to overrule decisions of this Court, it would risk

undermining the respect for judicial authority and finality that

Marbury v. Madison instilled in the Republic nearly two

centuries ago. The Court should reject this impoverished

vision of its constitutional role, and read Miranda for what it is:

a decision resting on, interpreting, and construing the

Constitution. Neither common sense nor constitutional history

admits of any principled alternative.

12/ See Thomas S. Schrock & Robert C. Welsh, Reconsidering the

Constitutional Common Law, 91 Harv. L. Rev. 1117 (1978).

18

E. Section 3501 Is an Unconstitutional Attempt

to Overrule the Constitutional Holding of

Miranda, Not a Procedural Safeguard That

Is “At Least as Effective” as Those Suggested

in Miranda

Contrary to the suggestion of amicus curiae, WLF Brief

at 13, Section 3501 cannot be the sort of “alternative[] for

protecting the privilege” that the Miranda decision sanctioned.

As Miranda makes clear, for such an alternative to be

constitutionally sufficient, it must operate prior to the custodial

interrogation and must be “at least as effective in apprising

accused persons of their right of silence and in assuring a

continuous opportunity to exercise it” as the warnings

suggested in that case. Miranda, 384 U.S. at 467.“ Section

3501, however, does not (and does not even purport to) create

any procedural safeguard at the time of the custodial

interrogation. To the contrary, as the Fourth Circuit

recognized, Section 3501 attempts to restore the “case-by-case

determination” standard used prior to Miranda. Pet. App. 12a;

see S. Rep. No. 90-1097 (1968), reprinted in 1968

U.S.C.C.A.N. 2112, 2134-35, 2137-38.4

13/ See id. at 444 (“other fully effective means . . . to inform accused

persons of their right of silence and to assure a continuous opportunity to

exercise it”); id. at 443 (“a full and effective warning of his rights at the

outset of the interrogation process”); id. at 457 (“appropriate safeguards at

the outset of the interrogation to insure that the statements were truly the

product of free choice”); id. at 467 (“the accused must be adequately and

effectively apprised of his rights and the exercise of those rights must be

fully honored”).

14/ This case is thus not like Smith v. Robbins, No. 98-1037, 2000 WL

33469 (U.S. Jan. 19, 2000), decided earlier this Term. There, California

had adopted an alternative procedural safeguard to the one suggested by the

19

Under the terms of Section 3501, the admissibility of all

confessions, including ones made during custodial

interrogation, would be based on a judicial post hoc review of

the “totality of the circumstances.” The majority in Miranda,

however, rejected this standard as constitutionally insufficient

to determine the admissibility of statements made while in

custody. See 384 U.S. at 468-69 (noting that a post hoc

consideration of the sort conducted under the “totality of the

circumstances” inquiry “can never be more than speculation”

and concluding that, in any event, “a warning at the time of the

interrogation is indispensable to overcome its pressures and to

insure that the individual knows he is free to exercise the

privilege at that point in time”). Because, as established above,

the requirement of some procedural protection at the time of

interrogation represents the Supreme Court’s interpretation of

what the Constitution requires, the statute is beyond the power

of Congress, see City of Boerne v. Flores, 521 U.S. 507, 536

(1997), and is thereby void. See Marbury, 5 U.S. (1 Cranch) at

180 (“a law repugnant to the constitution is void”).

Court in Anders v. California, 386 U.S. 738 (1967); here, Section 3501

creates no procedural safeguard.

15/ Indeed, many of the principal sponsors of Section 3501 appeared to

view their legislation as an effort to persuade the Court to revisit Miranda

rather than an attempt to overrule it directly. See Yale Kamisar, Can (Did)

Congress ‘Overrule’ Miranda?, 85 Comell L. Rev. (forthcoming April

2000) (manuscript at 19-20, lodged with the Court).

20

Il. THIS COURT SHOULD NOT REVISIT

. MIRANDA’S REQUIREMENT OF

PROCEDURAL SAFEGUARDS

Miranda’s requirement of procedural safeguards, in

conjunction with its suggested warnings, has provided, and

continues to provide, an eminently workable rule under which

suspects and law enforcement alike are informed, respectively,

of their fundamental rights and what conduct is required of

them. Experience has not borne out the need for reexamination

of the premises underlying Miranda’s exclusionary rule --

indeed, the coercive nature of custodial interrogation that

prompted the Court to enunciate that rule simply has not

diminished over time. Moreover, provision of some procedural

safeguards prior to custodial interrogation has come to be

viewed as an essential component of fair prosecutorial

procedure. Any retreat from those safeguards would

undermine public confidence in our criminal justice system and

in this Court’s commitment to vindicating the fundamental

rights of citizens.

The principles of stare decisis weigh decidedly in favor

of reaffirming Miranda. Stare decisis “permits society to

presume that bedrock principles are founded in the law rather

than in the proclivities of individuals, and thereby contributes

to the integrity of our constitutional system of government.”

Vasquez v. Hillery, 474 U.S. 254, 265-66 (1986). Adherence

to this doctrine is duly recognized as the preferred course,

because it “promotes the evenhanded, predictable, and

consistent development of legal principles, fosters reliance on

judicial decisions, and contributes to the actual and perceived

integrity of the judicial process.” Payne v. Tennessee, 501 U.S.

808, 827 (1991). Stare decisis is not an “inexorable

command,” id. at 828, and admittedly is less rigidly applied in

21

constitutional cases such as this one, see id.; Planned

Parenthood v. Casey, 505 U.S. 833, 854 (1992). Nonetheless,

stare decisis is firmly rooted in the rule of law, and “even in

constitutional cases, the doctrine carries such persuasive force

that [this Court] has always required a departure from

precedent to be supported by ‘special justification.”” United

States v. International Bus. Mach. Corp., 517 U.S. 843, 856

(1996) (quoting Payne, 501 U.S. at 842 (Souter, J.

concurring)).

Among the factors the Court considers in determining

whether to revisit precedent are “whether the rule has proven

intolerable simply in defying practical workability,” “whether

the rule is subject to a kind of reliance that would lend a special

hardship to the consequences of overruling and add inequity to

the cost of repudiation,” “whether related principles of law

have so far developed as to have left the old rule no more than

a remnant of abandoned doctrine,” and “whether the facts have

so changed, or come to be seen so differently, as to have robbed

the old rule of significant application or justification.” Casey,

505 U.S. at 854-55. None of these factors supports -- let alone

compels -- reexamination of Miranda today.

A. Miranda Sets Forth a Workable

Requirement

There can be no serious dispute that Miranda sets forth

a workable requirement, particularly given its suggestion of

specific warnings that are sufficient to meet that requirement.

See Miranda, 384 U.S. at 444-45. Those warnings -- or some

equally effective substitute -- must be provided prior to

custodial interrogation; if they are not, any statements obtained

will be excluded from proof for the government’s case at

22

trial’” The warnings are easy for law enforcement to

administer. See Berkemer v. McCarty, 468 U.S. 420, 430

(1984) (extolling merit of ease and clarity of Miranda’s

application); Roberson, 486 U.S. at 680 (same). Indeed, the

government itself has acknowledged that “[f]ederal agents do

not find it difficult, in general, to read a suspect his rights and

determine whether the suspect wishes to answer questions.”

Pet. Resp. 21. Further telling evidence of Miranda’s

workability is that the Federal Bureau of Investigation made

use of substantially similar warnings even before Miranda

required some such procedural safeguards. See id.; Miranda,

384 US. at 483-84 & n.54.

This Court has repeatedly agreed. Most recently, in

Withrow, 507 U.S. at 695, the Court observed: “We must

remember . . . that Miranda came down some 27 years ago . . .

and there is little reason to believe that the police today are

unable, or even generally unwilling, to satisfy Miranda’s

requirements.” See also Quarles, 467 U.S. at 663 (since

Miranda, “law enforcement practices have adjusted to its

strictures”) (O’Connor, J., concurring in the judgment in part

and dissenting in part) (quoting Rhode Island v. Innis, 446 U.S.

291, 304 (1980) (Burger, C.J., concurring in the judgment)).

Empirical research has confirmed the ease with which law

enforcement has implemented Miranda’s simple mandate. See,

e.g., Schulhofer, Reconsidering Miranda, at 455-57 & n.56

(noting “many studies have shown that the degree of

compliance with Miranda’s requirements . . . has been high’”’).

16/ The public safety exception recognized in Quarles is the only

exception to this rule, allowing the substantive use of unwarned statements

obtained under circumstances implicating public safety. See Quarles, 467

USS. at 655.

23

That the exact form of the procedural safeguards is open

to refinement further evidences Miranda’s workability.

Recognizing that the Constitution does not require the precise

warnings articulated in the Miranda decision, the Court made

clear that Congress and the States are free to establish

alternative procedures for protecting the privilege against self-

incrimination, so long as any alternative they adopt is “at least

as effective in apprising accused persons of their right of

silence and in assuring a continuous opportunity to exercise it.”

Miranda, 384 U.S. at 467. Miranda itself thus allows for

adjustments to be made -- within constitutional limits -- to

improve the workability of its requirement, should such

adjustments become necessary.

Any potential “costs” resulting from Miranda’s

exclusion of custodial confessions obtained in the absence of

the required safeguards are entirely beside the point in

evaluating the workability of Miranda’s requirement. As the

Miranda Court made abundantly clear, society’s interest in

interrogating a suspect is subordinate to the commands of the

Constitution. See Miranda, 384 U.S. at 479; Quarles, 467 U.S.

at 662 (O’Connor, J. concurring in the judgment in part and

dissenting in part). Even so, it is manifestly apparent that the

benefits of Miranda’ s protections outweigh any attendant costs.

Barring the use of a statement taken in the absence of

safeguards imposes at most a slight cost; the government is

merely forced to prove its case against the defendant using

other evidence -- it does not face necessary defeat. As such,

Miranda has not caused “undue interference” with our system

of law enforcement, 384 U.S. at 481, and it has certainly not

“proven intolerable.” Casey, 505 U.S. at 855.

By contrast, the use of an unlawfully obtained

confession poses a danger of constitutional magnitude for the

24

accused. In addition to violating his Fifth Amendment right

against self-incrimination, such use may effectively deprive the

accused of his Sixth Amendment right to trial by relieving the

government entirely of its burden of proof; faced with his own

confession, the suspect could well lose his defense before he

has an opportunity to present it. Cf, Tucker, 417 U.S. at 440-41

(“{A]n inability to protect the [Fifth Amendment] right [to

silence] at one stage of a proceeding may make its invocation

useless at a later stage. For example, a defendant’s right not to

be compelled to testify against himself at his own trial might be

practically nullified if the prosecution could previously have

required him to give evidence against himself before a grand

jury.”). Such a result is antithetical to “our accusatory system

of criminal justice [which] demands that the government

seeking to punish an individual produce the evidence against

him by its own independent labors, rather than by the cruel,

simple expedient of compelling it from his own mouth.”

Miranda, 384 U.S. at 460 (emphasis added). Plainly, if there

is any risk to be allocated here, the Constitution requires that it

be borne by the government, not by the accused.

B. Reliance Interests Support Adherence to

Miranda’s Dictates

Generally speaking, the reliance factor is most pertinent

in commercial cases, but it nonetheless has some resonance

here. See Casey, 505 U.S. at 856 (recognizing societal reliance

on tenets of Roe v. Wade, 410 U.S. 113 (1973)). Since

Miranda, society has come to expect the procedural safeguards

of Miranda as an indication of the government’s commitment

to making the custodial interrogation process fair and to

protecting the constitutional rights of suspects. As one scholar

has noted, “compliance with the Miranda safeguards is widely

considered an elementary prerequisite of fair procedure and the

25

decent restraint of police power.” Stephen J. Schulhofer,

Miranda's Practical Effect: Substantial Benefits and

Vanishingly Small Social Costs, 90 Nw. U. L. Rev. 500, 501 ~

(1996); see also id. at 562 (noting that “criminal procedure

safeguards . . . help shape the self-conception and define the

role of conscientious police professionals; they underscore our

constitutional commitment to restraint in an area in which

emotions easily run uncontrolled”). Repudiation of the

procedural safeguards required by Miranda thus would

undermine society’s confidence in the prosecutorial process,

and in law enforcement’s commitment to uphold the

fundamental rights of the citizens they are charged with

protecting. Moreover, evisceration of Miranda’s dictates likely

would encourage law enforcement to test the limits of lawful

interrogation practices, a result this Court should not invite.

Cc, Developments in the Law Have Not

Rendered Miranda’s Requirement Obsolete

This Court has never suggested that Miranda’s core

holding should be overruled. There has been some suggestion

among commentators, however, that post-Miranda

developments in the law have diminished the need for

Miranda’s exclusionary rule. Specifically, the theory has been

advanced that various civil, criminal, and administrative

remedies now available against law enforcement officers who

engage in coercive interrogation tactics provide both a remedy

for that unlawful conduct and a deterrent to future coercive

behavior. See, e.g., WLF Brief at 13-15. In light of these

remedies, the theory goes, “the legal incentives for non-

coercive police questioning [are] almost unrecognizably greater

than when Miranda was decided,” and Miranda’s exclusionary

rule is thus unnecessary. /d. at 13.

26

The theory is wrong. The basic intuition underlying

Miranda is a recognition that it is very difficult to show

coercion of a confession after the fact. Nothing has changed

that reality. The expansion of post hoc remedies, although

commendable, can have at most a marginal effect. It is simply

fantasy to suppose that more than a small fraction of victims of

coercion in a post-Miranda world would initiate (and succeed

with) civil, criminal, or administrative proceedings. It follows

that the availability of sanctions against offending officers does

not weaken Miranda’s requirement in the least, let alone render

it obsolete or a mere “remnant of abandoned doctrine.” Casey,

505 U.S. at 855; see also Mapp v. Ohio, 367 U.S. 643, 651-53

(1961) (holding that only the exclusion of improperly seized

evidence would be a sufficient remedy to deter violations of the

Fourth Amendment).

Moreover, any reliance on post hoc remedies overlooks

the fact that Miranda imposes constitutional constraints on two

distinct phases of criminal proceedings: when statements are

taken in the course of custodial interrogation as well as when

those statements are later used at trial. Post hoc remedies are

aimed at the former but do nothing to address the latter. It

follows that even if post hoc remedies were capable of

deterring some coercive interrogations, these remedies would

not adequately “guard against ‘the use of unreliable statements

at trial.” Withrow, 507 U.S. at 692 (citation omitted); see also

id. at 690 (“‘Prophylactic’ though it may be, in safeguarding

a defendant’s Fifth Amendment privilege against self-

incrimination, Miranda safeguards ‘a fundamental trial right.’”’)

(citation omitted). As the suppression remedy is “quite

possibly contained within the guarantee of the Fifth

Amendment itself,” Duckworth v. Eagan, 492 U.S. 195, 209

(1989) (O’Connor, J., concurring), it is obvious that post hoc

remedies, however effective they may be, cannot possibly serve

27

as an adequate substitute for the exclusion of statements taken

in violation of Miranda.

D. The Factual Premises Underlying Miranda

Remain Valid and Thus Support Affirming

That Decision

Miranda was based primarily on the Court’s conclusion

that custodial interrogation is inherently coercive. In each of

the cases before it, the defendant was subjected to

incommunicado™ interrogation in a _police-dominated

atmosphere. Taking special notice of the fact that “in none of

these cases did the officers undertake to afford appropriate

safeguards at the outset of the interrogation to insure that the

statements [made] were truly the product-of free choice,” the

Court found it “obvious that such an interrogation environment

is created for no purpose other than to subjugate the individual

to the will of his examiner.” Miranda, 384 U.S. at 457. The

Court, therefore, concluded that the “practice of

incommunicado interrogation is at odds with one of our

Nation’s most cherished principles -- that the individual may

not be compelled to incriminate himself,” and that “{uJnless

adequate protective devices are employed to dispel the

compulsion inherent in custodial surroundings, no statement

obtained from the defendant can truly be the product of his free

choice.” Miranda, 384 U.S. at 457-58.

17/ In reaching this conclusion, the Court noted particularly that police

manuals of the time affirmatively promoted the use and efficacy of this

approach. See Miranda, 384 U.S. at 449 (“[t}he officers are told by the

manuals that the ‘principal psychological factor contributing to a successful

interrogation is privacy -- being alone with the person under

interrogation’”).

28

The factual circumstances underlying Miranda's

holding have not changed. Suspects still are questioned in

isolation under conditions containing “inherently compelling

pressures.” Jd. at 467. Notably, we have not progressed to a

point where counsel is provided to a suspect at the interrogation

stage, or a magistrate is present to monitor and preserve the

integrity of the interrogation process. Cf. id. at 466 (presence

of counsel would constitute adequate protective device to make

process of police interrogation conform to dictates of privilege

against self-incrimination). Moreover, substantial empirical

evidence exists that coercive interrogation tactics continue to

be employed by law enforcement personnel throughout the

country. See, e.g., Charles D. Weisselberg, Saving Miranda, 84

Cornell L. Rev. 109, 153-62 (1998) (reviewing various

interrogation techniques and their effects on suspects). Indeed,

scholarship suggests that in recent years, police questioning

techniques -- including the deliberate interrogation of suspects

in contravention of the Miranda requirements in order to obtain

material usable as impeachment or for its evidentiary “fruits” --

have become even more psychologically compelling than those

considered by the Miranda Court itself. See, e.g., id. at 158-62.

Nor has the Court itself questioned the factual premise of its

holding in Miranda since that case was decided. These

circumstances demonstrate the continuing need to provide

suspects with some procedural safeguards prior to custodial

interrogation. Accordingly, it cannot be said that “the facts

have so changed, or come to be seen so differently, as to have

robbed the old rule of significant application or justification.”

See Casey, 505 U.S. at 855.

18/ Nor does the fact that the Miranda warnings have become embedded

in our culture reduce the need to inform each and every suspect of his right

to silence prior to custodial questioning. If citizens today are more familiar

with their right to silence than they were in the past, that is merely testament

29

This Court has strayed from the “straight path of stare

decisis . . . only when [it] has felt obliged to bring its opinions

into agreement with experience and with facts newly

ascertained.” Vasquez, 474 U.S. at 266 (quotation omitted).

Neither experience nor factual developments since Miranda

justify a departure from the fundamental dictates of that

decision. Moreover, the Court today does not consider the

propriety of Miranda’s procedural safeguard requirement on a

clean slate. For more than thirty years, this requirement has

protected the right against self-incrimination for hundreds of

thousands of persons confronted with the inherently compelling

pressures of custodial. interrogation. The requirement has

further served as demonstrable evidence of this Court’s

commitment to vindicating the constitutional rights of citizens.

It should not be abandoned now.

to the Miranda rule’s value and efficacy; it is not proof that the rule is

outdated or no longer necessary. As long as custodial interrogation

continues to be conducted behind closed doors, the suspect alone with his

questioner(s), there will be a need to apprise him, or remind him, at that

time of his rights.

CONCLUSION

The judgment below should be reversed.

Respectfully submitted,

JOHN T. PHILIPSBORN

LAW OFFICES OF

JOHN T. PHILIPSBORN

507 Polk Street, Suite 250

San Francisco, CA 94103

(415) 771-3801

Counsel for Amicus Curiae

California Attorneys for

Criminal Justice

January 28, 2000

PAUL M. SMITH*

DEANNE E. MAYNARD

KIAL S. YOUNG

MATTHEW HERSH

JENNER & BLOCK

601 Thirteenth Street, NW

Washington, DC 20005

(202) 639-6000

LISA B. KEMLER

ZWERLING & KEMLER, P.C.

108 N. Alfred Street

(703) 684-8000

Counsel for Amicus Curiae

National Association of

Criminal Defense Lawyers

* Counsel of Record