Amicus Curiae Brief — Dickerson v. United States

_ « 7. | Su

ar” } ayer mene Court, U.S.

M FILED

No. 99-5525

“ __MAR ~ 9 97;

In The

Re

Supreme Court of the United-StatesK

— e

CHARLES THOMAS DICKERSON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

¢

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

+

BRIEF OF AMICUS CURIAE

MANNING & MARDER, KASS, ELLROD, RAMIREZ

IN SUPPORT OF THE JUDGMENT BELOW

°

Davip J. WiLson

Law OFFICES OF

MANNING & MARDER,

Kass, ELLRop, RAMIREZ

707 Wilshire Boulevard, 45th Floor

Los Angeles, California 90017

(213) 624-6900

Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE...............045: 1

SUMMARY OF ARGUMENT...............-.550005 1

' POEPOPT OPT TT TTT CTTT ITT TTT TTT TTT ee 3

1. The Fictional “Bright Line” of Miranda Is No

ED CN GE GE co cccccvccscccesecsesccsess 3

2. Miranda Is Not a Substitute for the Voluntari-

ness Inquiry, but an Additional Inquiry, Requir-

ing Additional Litigation..................... 7

3. Assuming Miranda's Premises and Conclusions

Once Were Supported by Precedent or by

Logic, Subsequent Developments Have

Revealed Miranda's Fallacies.................. 11

4. Upholding Section 3501 Will Not Undermine

Confidence in the Judicial System............ 18

SED odecccccecccubeccsccescnseveccuceses 21

TABLE OF AUTHORITIES

Page

CAsEs

Arizona v. Fulminante, 499 U.S. 279 (1991) ........ .9, 13

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

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

Berkemer v. McCarty, 468 U.S. 420 (1984)........... 8, 16

Blackburn v. Alabama, 361 U.S. 199 (1960)............ 12

Bram v. United States, 168 U.S. 532 (1897) ........ 12, 13

Chambers v. Florida, 309 U.S. 227 (1940).............. 12

Colorado v. Connelly, 479 U.S. 157 (1986)....... 9, 10, 13

Delaware v. Van Arsdall, 475 U.S. 673 (1986) ......... 10

Edwards v. Arizona, 451 U.S. 477 (1981)............... 5

Escobedo v. Illinois, 378 U.S. 478 (1964) ........... 11, 12

Harris v. New York, 401 U.S. 222 (1971)............ 6, 16

Haynes v. Washington, 373 U.S. 503 (1963) ........... 12

Illinois v. Perkins, 496 U.S. 292 (1990)................ 15

Johnson v. New Jersey, 384 U.S. 719 (1966) ........... 12

Kirby v. Illinois, 406 U.S. 682 (1972) .............. 12, 16

Lynumn v. Illinois, 372 U.S. 528 (1963)............... 12

Massiah v. United States, 377 U.S. 201 (1964).......... 6

McNeil v. Wisconsin, 501 U.S. 171 (1991)........... 6, 19

Michigan v. Harvey, 494 U.S. 344 (1990)............... 7

Michigan v. Jackson, 475 U.S. 625 (1986)............... 6

Michigan v. Mosely, 423 U.S. 96 (1975)............. 5, 15

~~.

TABLE OF AUTHORITIES - Continued

Page

Michigan v. Tucker, 417 U.S. 433 (1974) ............ 6, 16

Miller v. Fenton, 474 U.S. 104 (1985).............0455. 8

Minnick v. Mississippi, 498 U.S. 146 (1990)............ 5

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

Moran v. Burbine, 475 U.S. 412 (1986).............. 6, 12

Murphy v. Waterfront Commission, 378 U.S. 52

Pee ePe Peete deteccepeecdoesoooceceeececces 12

New York v. Quarles, 467 U.S. 649 (1984)....... 8, 14, 17

North Carolina v. Butler, 441 U.S. 369 (1979) ......... 15

Oregon v. Bradshaw, 462 U.S. 1039 (1983) ............. 5

Oregon v. Elstad, 470 U.S. 298 (1985) .. 4, 6, 7, 8, 13, 17

Oregon v. Hass, 420 U.S. 714 (1975).........6.0005- 6, 10

Payne v. Tennessee, 501 U.S. 808 (1991)............... 18

Pennsylvania v. Muniz, 496 U.S. 582 (1990)............ 4

People v. Krom, 461 N.E.2d 276 (N.Y. 1984) ........ +. 14

People v. Laliberte, 615 N.E.2d 813 (Ill. App. 1993) .... 14

Stansbury v. California, 511 U.S. 318 (1994)............ 4

Townsend v. Sain, 372 U.S. 293 (1962), overruled by

Keeny v. Tamayo-Reyes, 504 U.S. 1 (1992)........... 12

United States v. Balsys, 524 U.S. 666 (1998)........ 12, 14

United States v. Verdugo-Urquidez, 494 J.S. 259

EEE SS PEPSOSEPLESPTTTTTTITTTTTITT TTT TT 14

Wan v. United States, 266 U.S. 1 (1924) .............. 13

Withrow v. Williams, 507 U.S. 680 (1993).............. 9

iv

TABLE OF AUTHORITIES - Continued

Page

STATUTES

SD DAK, GRC TEE cccccccccccccesccesccesses passim

OTHER AUTHORITIES

U.S. Department of Justice, Office of Legal Policy,

“Report to the Attorney General on the Law of

Pretrial Interrogation” (1986), reprinted in 22 U.

SE Dalen Cele GPW Ge cvdnccessoceccecadececss 21

—

INTEREST OF AMICUS CURIAE

The law firm of Manning & Marder, Kass, Ellrod,

Ramirez specializes in the representation of law enforce-

ment agencies and individual law enforcement officers.

Many of our cases involve questions of the extent to

which conduct by law enforcement officers does, or does

not, infringe core constitutional protections. It is vital that

the individual officers, their employing agencies, trainers

and advisors represented by this firm have a clear and

unmistakable resolution of the question that is now pre-

sented for decision in this Court.?

S

: SUMMARY OF ARGUMENT

1. The supposed “bright line” rule of Miranda v.

Arizona, 384 U.S. 436 (1966), often reflexively proffered as

a justification for a judicially-created exclusionary rule

that routinely conceals voluntary and reliable confessions

from juries seeking the truth, never has, in fact, existed.

Thirty-four years of experience with Miranda has revealed

its contours to be unworkably amorphous and unpredict-

able, and incapable of sustaining the false advertising of

its alleged “clarity” and “ease of application.”

2. Contrary to its great expectations, the Miranda

decision has not simplified admissibility determinations

1 The parties have consented to the filing of this brief.

Counsel for a party did not author this brief in whole or in part.

No person or entity, other than the Amicus Curiae, its members

or its counsel made a monetary contribution to the preparation

or submission of this brief.

by obviating the need for case-specific voluntariness

determinations under the Due Process Clauses. Instead,

Miranda has complicated and burdened the process by

adding an additional layer of issues to be litigated (cus-

tody, interrogation, warning, waiver, invocation, reinitia-

tion, etc.), after which traditional voluntariness issues

still must be addressed. The case-specific analysis pro-

vided by 18 U.S.C. Section 3501 is a far more sensible and

efficient approach to determining confession admis-

sibility.

3. One after another, cases and assertions upon

which Miranda relied for its ratio decidendi have been

rejected by subsequent decisions of this Court. Like an

old sacrificial shrine sunk into the mud after the collapse

of its foundation, Miranda retains its authority only from

inertia, revered despite its obvious ineffectiveness. Inertia

cannot justify the constitutional enshrinement of a deci-

sion that has failed to meet its stated goals — particularly

when an Act of Congress provides a superior means of

preventing testimonial use of coerced confessions, while

permitting voluntary statements to be disclosed to the

jury.

4. Public confidence in the Court and in the rule of

law does not require overruling Section 3501. On the

contrary, public confidence in the rule of law is enhanced

by upholding a statute enacted by the popularly elected

branch of the government, the United States Congress.

The express will of the branch of government accountable

to the public at the ballot box is entitled to respect and

should be upheld.

ARGUMENT

1. The Fictional “Bright Line” of Miranda Is No Bright

Line at All.

In Miranda, 384 U.S. at 442, the Court optimistically

claimed to be giving “concrete constitutional guidelines

for law enforcement agencies and courts to follow.” In

fact, however, the rules and exceptions to the Miranda

theory are no better understood by police or judges today

than they were in 1966.

Miranda has become this Court’s most litigated case.

In more than three dozen decisions construing Miranda

over the past thirty-four years, this Court has reversed

lower courts 86% of the time, overruling the misin-

terpretations of nine federal appellate courts, as well as

the highest courts of sixteen states. This extraordinary .

litigation record is the most compelling proof that Mir-

anda’s attempt to fashion a workable “bright line” has

been a dismal and costly failure.

Though the procedure recommended in Miranda is

deceptively simple if summarized as “the administration

of warnings prior to custodial interrogation,” the multi-

tude of determinations police officers and judges must

make in practical application has exposed the complex,

changing and uncertain nature of Miranda.

What, for example, is “custody”? The Court has

addressed this question nine times since Miranda, revers-

ing lower courts’ interpretations seven times. As recently

as 1994 - twenty-eight years after the “concrete guide-

lines” were first announced - the Court unanimously

reversed the California Supreme Court (one of the

———

nation’s most respected), which still did not understand

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

After nearly three decades of dealing with Miranda, the

highest court of the largest state had not yet discerned

the “bright line” concept of “custody” - but law enforce-

ment officers and trial judges are expected to have no

difficulty in identifying the point at which this Miranda

threshold occurs?

The Court has conceded that “the task of defining

‘custody’ is a slippery one,” and has recognized that

“[plolice officers are ill-equipped to pinch-hit for counsel,

construing the murky and difficult questions of when

‘custody’ begins. ...” Oregon v. Elstad, 470 U.S. 298, 309,

316 (1985). This acknowledgment belies the facile claim of

Miranda's “ease of application.” “Slippery,” “murky,” and

“difficult” are hardly the attributes of a “bright line.”

And what exactly constitutes Miranda's second trig-

ger — “interrogation”? The Court has wrestled with this

term four times, each time reversing the lower court. And

in Pennsylvania v. Muniz, 496 U.S. 582 (1990), a badly-

fractured court produced six different opinions as to

which portions of an officer’s drunk-driving investiga-

tion did or did not involve “interrogation.” Ultimately,

the Court was unable to agree on any opinion as to the

admissibility of certain booking responses. When, after

twenty-four years of consideration, the members of this

Court cannot agree on the definition of interrogation,

what “bright line” exists to guide the actions of law

enforcement officers in the field, or to guide lower court

judges reviewing their actions?

On questions relating to warning, waiver and invoca-

tion, the Court has issued eleven opinions, including ten

reversals. The still-confusing rules on permissible rein-

itiation of questioning have been the subject of six opin-

ions (five reversals), but continue to confound police:

After a suspect’s Miranda invocation of silence, reinitiation

of questioning is permissible as to a different offense,

Michigan v. Mosely, 423 U.S. 96 (1975); but after invocation

of counsel, police may not reapproach on the same case,

Edwards v. Arizona, 451 U.S. 477 (1981), nor on a different

case, Arizona v. Roberson, 486 U.S. 675 (1988) -— even if the

lawyer requested on the first case has been provided.

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

unanswered the question of whether such invocation bars

reinitiation indefinitely, as where a person remains con-

tinuously in custody after invocation of counsel and com-

mits a crime in prison years - or decades - later). The

suspect may reinitiate, Oregon v. Bradshaw, 462 U.S. 1039

(1983) - provided officers correctly perceive the suspect's

question or statement as inviting renewed interrogation.

In practice, these complex rules on reinitiation

require any officer other than the arresting officer to take

an “interrogation history” from the suspect to determine

whether interrogation may even be attempted, and if so,

on what topics. Detectives and other follow-up officers

must know the following: (1) Has the suspect been Mir-

andized? (2) If so, did he waive? (3) If not, did he invoke

only silence, or (4) Did he ask for counsel? (5) After either

invocation, has the suspect reinitiated and waived the

right previously asserted? Of course, an entirely different

set of rules apply to assertion and waiver of the Sixth

Amendment right to counsel, which, unlike Miranda, is

6

offense-specific, and independent of custody. Officers,

therefore, must be familiar with the line of cases applying

Massiah v. United States, 377 U.S. 201 (1964), and espe-

cially those decisions distinguishing the separate Miranda

rules, such as Moran v. Burbine, 475 U.S. 412 (1986), Michi-

gan v. Jackson, 475 U.S. 625 (1986), and McNeil v. Wiscon-

sin, 501 U.S. 171 (1991). Clarity? Ease of application?

Bright line? Or unworkable convolution?

On the subject of the exclusionary consequences of

an officer's failure to correctly anticipate or discern and

follow Miranda's serpentine guidelines, this Court has

issued seven opinions (six reversals). Although holding

that voluntary statements lacking Miranda conformity are

admissible for impeachment, Harris v. New York, 401 U.S.

222 (1971) and Oregon v. Hass, 420 U.S. 714 (1975), and

ruling that a witness revealed in an inadmissible state-

ment may testify, Michigan v. Tucker, 417 U.S. 433 (1974),

the Court has yet to resolve the constant issue of whether

physical evidence disclosed in a noncomplying statement

is admissible.

So, is there truly a “bright line” that helps to justify a

decision which even the courts at all levels cannot consis-

tently interpret? Do police officers really have “concrete

guidelines” that they can reliably apply to the many

interrogation issues they confront each day in the field

and in the station house? The Court itself has supplied

the obvious answer to these questions: “In many cases, a

breach of Miranda procedures may not be identified as

such until long after full Miranda warnings are adminis-

tered and a valid confession obtained.” Oregon v. Elstad,

470 U.S. at 316.

Since Miranda’s line is so blurry that transgressions

may not be identifiable until long after the interrogation

has occurred, it follows indisputably that Miranda has not

proven workable. The case-specific voluntariness test of

Section 3501, by contrast, does not raise the plethora of

“slippery” and “murky” issues associated with Miranda.

The statute’s line is far brighter, easier to apply and more

likely to accomplish the twin goals of excluding state-

ments that are actually (not just presumptively)

compelled, while admitting statements found on consid-

eration of the statutory factors to have been made volun-

tarily.

2. Miranda Is Not a Substitute for the Voluntariness

Inquiry, but an Additional Inquiry, Requiring Addi-

tional Litigation.

In Miranda, 384 U.S. at 457, the Court admitted that in

the cases before it, “we might not find the defendants’

statements to have been involuntary in traditional

terms.” In other words, the new Miranda test would be a

separate, independent test, that might cause suppression

of statements that were in no way involuntary. The Court

repeatedly has acknowledged as much: “[P]atently volun-

tary statements taken in violation of Miranda must be

excluded from the prosecution’s case. . . . ” Oregon v.

Elstad, 470 U.S. at 307; “Although recognizing that the

Miranda rules would result in the exclusion of some vol-

untary and reliable statements,” the Court imposed the

additional test anyway. Michigan v. Harvey, 494 U.S. 344,

350 (1990).

As with the invisible “bright line” discussed above,

there has been an attempt to justify Miranda on the false

assertion that Miranda gencrally guarantees voluntari-

ness, and therefore eliminates the need to ‘make the tradi-

tional voluntariness inquiry. One of the purposes of

Miranda was “as much as possible to free courts from the

task of scrutinizing individual cases to try to determine,

after the fact, whether particular confessions were volun-

tary.” Berkemer v. McCarty, 468 U.S. 420, 433 (1984).

This purpose has never been, and can never be,

accomplished, for “the failure to provide Miranda warn-

ings in and of itself does not render a confession involun-

tary.” New York v. Quarles, 467 U.S. 649, 655, fn. 5 (1984).

On the other hand, compliance with Miranda does not

guarantee voluntariness, because in situations where a

warning and waiver occur, police officers may still

employ coercive tactics (such as mistreatment, threats, or

promises) that render the Mirandized statement involun-

tary.

The Court has recognized that in addition to Miranda

litigation, trial courts also must litigate voluntariness

challenges (which, in practice, defendants routinely cou-

ple with Miranda challenges): “[I]n situations that fall

outside the sweep of the Miranda presumption, ‘the pri-

mary criterion of admissibility [remains] the “old” due

process voluntariness test.’ ” Oregon v. Elstad, 470 U.S. at

307-08; even after Miranda, “the Court has continued to

measure confessions against the requirements of due pro-

cess.” Miller v. Fenton, 474 U.S. 104, 110 (1985); “Indeed,

we continue to employ the totality-of-circumstances

approach when addressing a claim that the introduction

of an involuntary confession has violated due process.”

Withrow v. Williams, 507 U.S. 680, 689 (1993); accord, Colo-

rado v. Connelly, 479 U.S. 157, 163 (1986), in which this

Court engaged in the two-part analysis now necessitated

to resolve both the Miranda issues and the due process

voluntariness issues.

Miranda has in fact not eliminated the need for tradi-

tional due process review. It has merely added to the

burden on law enforcement, counsel and courts to deter-

mine admissibility of statements. The fiction that Miranda

reduces litigation and saves judicial resources cannot

legitimately be used to justify an unwarranted exclusion-

ary rule that frequently results in the suppression of “the

most probative and damaging evidence that can be

admitted against (the defendant].” Arizona v. Fulminante,

499 U.S. 279, 296 (1991) (citations omitted).

Section 3501 more sensibly eliminates the double liti-

gation burden of two hearings. More importantly, the

statute provides a consolidated examination of both the

components of Miranda and the traditional voluntariness

factors of due process. This more efficient procedure

assures that coerced confessions will not be used, while

permitting use of truly voluntary statements. The statute

accomplishes what Miranda cannot, and does so without

Miranda's costly and unjustifiable suppression of highly

probative, reliable and voluntary evidence of the truth.

Section 3501 protects a suspect’s assertion of his right

to silence or counsel, while permitting a trial judge to

consider all of the enumerated factors in determining

admissibility of statements, including the time between

arrest and arraignment, the suspect’s understanding of

the nature of the offense, whether the suspect knew he

10

was not required to make any statement, whether the

suspect had been advised of his right to counsel, and

whether the suspect had the assistance of counsel at the

time the statement was made. 18 U.S.C. § 3501(b). If, for

example, a particular suspect was not cautioned of his

rights in a timely fashion, but evidence showed many

prior arrests where the suspect had been admonished and

had variously waived or asserted his rights and was

therefore quite familiar with them, his otherwise volun-

tary statement need not necessarily be lost to the fact-

finder by technical default, as has often been the case

under Miranda.

“(T]he central purpose of a criminal trial is to decide

the factual question of the defendant’s guilt or inno-

cence.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1956).

Excluding voluntary statements by a judicial presump-

tion that has never been supported by empirical facts

tends to “deflect a criminal trial from its basic purpose.”

Colorado v. Connelly, 479 U.S. at 166. Miranda's high costs

in the search for the truth cannot be justified by the claim

that it reduces litigation and simplifies admissibility

determinations — it does neither. In contrast, Section 3501

does in fact reduce litigation and allow the uncoerced

truth to be presented to the jury. No rational objective,

therefore, is served by inertial preference for Miranda's

anachronistic scheme over a legislative alternative that

more efficiently protects constitutional rights and facili-

tates — rather than thwarts — the search for the truth. “We

are, after all, always engaged in a search for truth in a

criminal case. . . . ” Oregon v. Hass, 420 U.S. at 722.

11

3. Assuming Miranda’s Premises and Conclusions

Once Were Supported by Precedent or by Logic,

Subsequent Developments Have Revealed Mir-

anda’s Fallacies.

Invocations of constitutional imperative notwith-

standing, Miranda was essentially the assumption of five

members of the Court - unsupported by any empirical

evidence — that custodial interrogation was by its nature

coerced interrogation. So much so that the privilege

against compelling a defendant to testify at trial neces-

sarily was implicated by questioning a suspect in custody.

The warning and waiver procedure then approved was

assumed to dissipate the coercion, serving as a prerequi-

site to admission of statements.

With all due respect for the good intentions of the

Miranda opinion, the kindest thing to be said of the

rationale and purported justifications for that revolution-

ary departure from nearly two hundred years of Fifth

Amendment jurisprudence is that the rambling, sixty-

page opinion did not provide cogent support for its hold-

ing. During the thirty-four years of Miranda's existence,

virtually every brick of Miranda’s foundation has crum-

bled or been removed. A few examples will suffice to

illustrate that Miranda has not withstood the test of time

or met the demands of practicality.

Miranda’s analytical starting point was the earlier

holding in Escobedo v. Illinois, 378 U.S. 478 (1964) - a Sixth

Amendment case. Miranda v. Arizona, 384 U.S. at 440-442.

After a “thorough re-examination” of the two-year-old

Escobedo decision, the Court declared, “we reaffirm it.”

Ibid. While building on a “reaffirmed” Escobedo may have

12

been convenient and necessary to help shore up Miranda's

ruling, the Court, strangely enough, limited Escobedo to

its own facts just one week later in Johnson v. New Jersey,

384 U.S. 719, 733-34 (1966). The Court has since declined

to honor Escobedo as precedent for any proposition:

“[T]he Court has limited Escobedo to its own facts... . ”

Kirby v. Illinois, 406 U.S. 682, 689 (1972). Miranda’s discus-

sion of Escobedo “is not only dictum, but reflects an

understanding of the case that the Court has expressly

disavowed.” Moran v. Burbine, 475 U.S. at 430. So much

for Miranda’s reliance on Escobedo.

While purporting to find textual and historical

authority for its Fifth Amendment holding, Miranda

instead leaned almost exclusively on Fourteenth Amend-

ment due process cases coming from the states, e.g., Black-

burn v. Alabama, 361 U.S. 199 (1960), Townsend v. Sain, 372

U.S. 293 (1962), overruled by Keeny v. Tamayo-Reyes, 504

U.S. 1 (1992), Lynumn v. Illinois, 372 U.S. 528 (1963),

Haynes v. Washington, 373 U.S. 503 (1963), Chambers v.

Florida, 309 U.S. 227 (1940), and Ashcraft v. Tennessee, 322

U.S. 143 (1944). The Fourteenth Amendment, protecting

against actual coercion, provides no support for a Fifth

Amendment ruling on presumptive compulsion.

One of the few Fifth Amendment cases cited in Mir-

anda, Murphy v. Waterfront Commission, 378 U.S. 52 (1964),

dealt not with custodial interrogations, but with immu-

nized testimony. Murphy, moreover, was seriously under-

cut in United States v. Balsys, 524 U.S. 666 (1998). Another

Fifth Amendment decision repeatedly cited by Miranda

was Bram v. United States, 168 U.S. 532 (1897). But Bram’s

broad central theme, “which under current precedent

13

does not state the standard” for confession analysis, Ari-

zona v. Fulminante, 499 U.S. at 285, can no longer buttress

Miranda’‘s extrapolations from it.

Quoting from Wan v. United States, 266 U.S. 1 (1924),

which in turn had relied on Bram, Miranda repeated that a

compelled confession must be excluded, “whatever may

have been the character of the compulsion.” Miranda v.

Arizona, 384 U.S. at 462. But this sweeping rule was point-

edly rejected by this Court in Colorado v. Connelly, 479 U.S.

at 164-67, where the character of the compulsion was a

“command hallucination from God” to confess. Connelly

held that the character of the compulsion was not nearly

as broad as “whatever,” but must derive from coercive

police activity. And in Oregon v. Elstad, 470 U.S. at 304-05,

the Court noted that “The Fifth Amendment, of course, is

not concerned with . . . moral and psychological pressures

to confess emanating from sources other than official coer-

cion.” To the extent that Bram may ever have been said to

undergird Miranda, that claim can no longer be made.

Miranda‘s footnote 33, 384 U.S. at 464, cites a number

of cases for the rule, then extant, that introduction of a

coerced confession requires reversal of a conviction, even

if there is ample evidence to sustain the judgment. That

rule was overturned in Arizona v. Fulminante, 499 U.S. 279

(1991).

The Miranda Court thought the Fifth Amendment

was designed, in part, “to respect the inviolability of the

human personality. ... ” Miranda v. Arizona, 384 U.S. at

460. But this Court recently stated “(t]he Fifth Amend-

ment tradition, however, offers no such degree of protec-

tion,” and that “what we find in practice is not the

14

”

protection of personal testimonial inviolability. . . .

United States v. Balsys, 524 U.S. at 692.

In Miranda, the Court ruled that “the Fifth Amend-

ment privilege is available” to be claimed during custo-

dial interrogations. Miranda v. Arizona, 384 U.S. at 461,

467. Though this ruling implies that the Fifth Amendment

also can be violated at interrogations lacking Miranda com-

pliance (and numerous lower courts have indeed drawn

this conclusion), this Court has since clarified that while

police questioning may implicate the Fifth Amendment

privilege, “a constitutional violation occurs only at trial.”

United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990).

Miranda referred to the prescribed warnings as “an

absolute prerequisite” to custodial interrogation. Miranda

v. Arizona, 384 U.S. at 468, 471. But in New York v. Quarles,

467 U.S. at 654, this Court decided that the “prophylactic”

Miranda procedures, not themselves being required by the

Constitution, were not so absolute after all. The Court

made an exception for public safety questioning, and

lower courts have relied on Quarles to approve exceptions

for officer safety questioning, rescue of kidnap victims,

and assessing a wounded arrestee’s injuries and need for

treatment. E.g., People v. Laliberte, 615 N.E.2d 813, 816-32

(Ill. App. 1993) (after kidnaper’s assertion of rights, FBI

agents questioned to rescue one-year-old left in a duffle

bag in the woods); cf., People v. Krom, 461 N.E.2d 276,

278-79 (N.Y. 1984) (when kidnaper asked for counsel,

questioning was delayed, and the victim was later found

suffocated in a coffin-like box).

15

This Court also found Miranda’s “absolute prerequi-

site” inapplicable to custodial interrogation conducted by

an undercover officer, in Illinois v. Perkins, 496 U.S. 292

(1990). Miranda’s categorical command, a key to its hold-

ing, thus has not survived intact.

Also failing preservation were Miranda’s insistence

that any post-warning waiver be “specifically made,” and

its caution that while an “express statement” might con-

stitute a waiver, no waiver could be presumed from the

fact that a confession was eventually obtained. Miranda v.

Arizona, 384 U.S. at 470, 475. But in North Carolina v.

Butler, 441 U.S. 369 (1979), this Court held that a waiver

need not be express, but could be inferred from the fact

that a suspect answered questions after being apprised of

his rights.

Miranda declared that upon invocation of the right to

silence, interrogation must cease, and that “any statement

taken after the person invokes his privilege cannot be

other than the product of compulsion. . . . ” Miranda v.

Arizona, 384 U.S. at 473-74. The seemingly unqualified

import of these declarations was repudiated in Michigan

v. Mosley, 423 U.S. at 102, where the Court found that

literal application would “transform the Miranda safe-

guards into wholly irrational obstacles to legitimate

police investigative activity... . ”

The rationale put forward in Miranda was premised,

in part, on the mistaken notion that custodial interroga-

tion triggered the protections of the Fifth Amendment,

because “It is at this point that our adversary system of

criminal proceedings commences. . . . ” Miranda v. Ari-

zona, 384 U.S. at 477. But this statement is at odds with

16

language from a long line of Sixth Amendment cases,

holding that adversary criminal proceedings do not com-

mence until formal charging, indictment, information,

preliminary hearing or arraignment. Reaching one of

these stages - well beyond custodial interrogation - “is

the starting point of our whole system of adversary crimi-

nal justice.” Kirby v. Illinois, 406 U.S. at 689.

Although Miranda seemed to allow interrogation

without warnings only “of persons not under restraint,”

Miranda v. Arizona, 384 U.S. at 477, the Court has subse-

quently ruled that no warnings need be given to those

under the restraint of a temporary detention, not equiva-

lent to formal arrest. Berkemer v. McCarty, 468 U.S. 420,

440 (1984).

Another of Miranda's rigid exclusionary commands

was that without warnings and waiver by the arrestee,

“no evidence obtained as a result of interrogation can be

used against him.” Miranda v. Arizona, 384 U.S. at 479.

The Court subsequently decided, however, that some evi-

dence obtained by noncomplying interrogation could be

used. Michigan v. Tucker, 417 U.S. at 450 (testimony of

witness discovered through unwarned questioning

admissible); Harris v. New York, 401 U.S. at 224 (unwarned

impeachment statements admissible, because Miranda's

language barring any use of such evidence “cannot be

regarded as controlling”).

The Miranda Court assumed that its holding would

not hamper police investigations of crimes: “[OJur deci-

sion does not in any way preclude police from carrying

17

out their traditional investigatory functions.” Miranda v.

Arizona, 384 U.S. at 481. This false assertion has been

contradicted repeatedly: New York v. Quarles, 467 U.S. at

657 (Miranda created “procedural safeguards which deter

a suspect from responding. . . . ”); Oregon v. Elstad, 470

U.S. at 309 (“Miranda warnings may inhibit persons from

giving information. .. . ”).

At one point, Miranda stated that the existence of

independent corroborating evidence was “irrelevant” to

the issue of admissibility of unwarned statements. Mir-

anda v. Arizona, 384 U.S. at 481, fn. 52. Shortly thereafter,

the opinion tries to prop up its decision by comparison

with the practices in such countries as Great Britain,

Scotland, India and Ceylon - selected nations with a

requirement of pre-interrogation advice. Id., at 486-489.

But as Justice O’Connor noted in her separate opinion in

Quarles, “the trend in these other countries is to admit the

improperly obtained statements themselves, if non-

testimonial evidence later corroborates, in whole or in

part, the admission.” New York v. Quarles, 467 U.S. at 673,

fn. 6 (O'Connor, J., concurring and dissenting). In this

regard, Miranda was internally inconsistent, using those

foreign practices that supported its holding, and ignoring

those that did not.

These examples show that Miranda made numerous

analytical errors, relied on cases that did not support its

holding, relied on cases that have since been disap-

proved, and made broad statements this Court has subse-

quently been unable to embrace in practice. Even if the

assumptions and rulings of Miranda had some validity in

1966, in 2000 it is not possible to escape the impact of

thirty-four years of its demonstrated impracticality, or to

18

ignore the fact that subsequent developments in the law

in more than three dozen cases decided by this Court

have revealed the numerous faults of a poorly reasoned

opinion.

Miranda's foundation is gone. Continuing to require

society to pay the high price of excluding from trials

probative, voluntary statements of accused criminals on

the basis of a court-created presumption that is not itself

constitutionally authorized or required, that has not

proven workable, and that complicates admissibility

determinations, is to place stare decisis in the realm of

idolatry.

4. Upholding Section 3501 Will Not Undermine Confi-

dence in the Judicial System.

Even if the quasi-constitutional rationale of the Mir-

anda opinion were not already dead and gone, there

would be considerable grounds for abandoning it and

upholding Section 3501. It is well known that “stare decisis

is not an inexorable command,” and “this is particularly

true in constitutional cases.” Payne v. Tennessee, 501 U.S.

808, 828 (1991). Consideration in favor of stare decisis is at

its nadir in cases like this one, “involving procedural and

evidentiary rules.” Ibid. Like the decisions overruled in

Payne, Miranda was decided “by the narrowest of mar-

gins, over spirited dissents challenging [its] basic under-

pinnings.” Id., at 828-29.

It has been submitted, however (Government's cer-

tiorari brief at 36-37, and merits brief at 43-44 and 56-57),

that Miranda should be maintained because the public’s

familiarity with the basic notion of “reading a suspect his

19

rights” would cause a loss of confidence in the justice

system and this Court if Miranda is modified or over-

turned. Not true.

It is dubious, to put it mildly, that the public at large

has ever accepted the idea that the criminal should go

free because the constable has blundered. There is no

reason to believe that most members of the public would

favor suppressing a suspected bank robber’s voluntary

statements based on a disputed finding that he was not

given Miranda warnings at a particular time. More gener-

ally, there is no reason to believe that the public would

favor Miranda's rigid exclusionary rule over the more

flexible approach of Section 3501.

There is nothing to support the Government's vague

suggestions that “citizen cooperation” and “support” for

law enforcement would somehow diminish if Section

3501 were upheld. This certainly is not the view of law

enforcement, as shown by the overwhelming support of

law enforcement and prosecution agencies for upholding

the statute. In general, nothing will be lost to law enforce-

ment by upholding Section 3501, because nothing in the

statute prevents or discourages law enforcement agencies

from continuing the Miranda procedures (or other similar

procedures) to the extent they are found to be beneficial.

If law enforcement agencies wish to follow this procedure

hereafter —- in order to maintain public confidence or to

contribute to a finding of voluntariness of statements -

they remain perfectly free to do so. As the Court noted on

another Miranda issue, “the police do not need our assis-

tance to establish such a guideline; they are free, if they

wish, to adopt it on their own.” McNeil v. Wisconsin, 501

U.S. at 181-82..

20

Moreover, to the extent that the Government's argu-

ment rests on the supposed popularity of the Miranda

rules, it takes the extremely odd position that the Court

should be the arbiter and enforcer of the public will —- in

contravention of a statute duly enacted by the Congress,

which is directly accountable to the public at the ballot

box. This simply is not the way the separation of powers

works in a representative democracy. Nothing is lost to

self-government by upholding the statute. To the extent

the public may actually favor the continuation of Mir-

anda-like procedures, or the adoption of any alternative

interrogation procedures that are consistent with consti-

tutional protections, the lawmakers and administrators

who depend on the public’s approval for their continued

tenure in office will take account of those preferences.

Indeed, it is the invalidation of Section 3501 that would

do serious harm to democracy by foreclosing the possi-

bility of doing anything other than clinging to Miranda,

regardless of what the public may wish.

There is also nothing to the claim that striking down

Section 3501 is necessary in order to maintain public

confidence in the Court. At a practical level, the Court’s

rulings have been obeyed throughout history, come what

may. A decision one way or the other in this case will

have no effect on that.

If, on the other hand, the relevant concern is some

spiritual or symbolic desirability of maintaining public

confidence in the Court, this consideration also favors

upholding the statute. Members of the public who know

something about the issue presumably would find it odd

if the Court held unconstitutional a statute which

requires nothing that the Constitution prohibits, and

——

21

would therefore feel less confidence that the Court

observes the constitutional limits on its own powers.

The Miranda decision was not based on a sound

interpretation of the Constitution. See U.S. Department of

Justice, Office of Legal Policy, “Report to the Attorney

General on the Law of Pretrial Interrogation” (1986),

reprinted in 22 U. Mich. J.L. Ref. 479, 491-506 (1989).

Obstinacy in maintaining the product of constitutional

error could only serve to discredit the Court. Fidelity to

the Constitution is the surest long-term guarantor of pub-

lic confidence in the Court, and fidelity to the Constitu-

tion requires that Section 3501 be upheld. Section 3501

provides a legal, efficient and workable alternative to

Miranda. This Act of Congress should be sustained.

¢

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the judgment of the Fourth Circuit Court of Appeals

should be affirmed.

Respectfully submitted,

Davip J. WiLson

Counsel of Record

Counsel for Amicus Curiae