Amicus Curiae Brief — Dickerson v. United States

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-ppeice OF THE CLERM |

No. 99-5525 | OFE!

IN THE

Supreme Court of the United States

CHARLES THOMAS DICKERSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

"

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF AFFIRMANCE

EDWIN MEESE III KENT S. SCHEIDEGGER

The Heritage Foundation Attorney of Record

214 Massachusetts Ave., NE CHARLES L. HOBSON

Washington, DC 20002 Criminal Justice Legal Fdn.

Phone: (202) 608-6180 2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

QUESTION PRESENTED

Whether a voluntary confession may be admitted into

evidence in the government’s case-in-chief under 18 U. S. C.

§ 3501, notwithstanding that the confession was taken without

complying with the requirements of Miranda v. Arizona, 384

U. S. 436 (1966).

(i)

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TABLE OF CONTENTS

CUE Dace ocedencesesccccscesene i

Table of authorities ....... ceed enneseokdecens Vv

i an cosas co kecacccccecacces l

Summary of facts and case... ... 00... 0... ccc cee eee 2

CE eee eee cd cecedanceecccccceces 3

Pt UCPC PE EGE Ree ee seed seeseecesccecceses 3

I

Miranda’s irrebuttable presumption creates no constitutional

right, but rather is a rule of evidence ................ 3

eet cakes eehececccescccess 5

B. The nonconstitutional prophylactic ............ 9

II

The Supreme Court can create common law rules for the

adjudication of constitutional rights which are binding

on the states but subject to revision by Congress ..... . 13

eee 13

B. Remedies and review .... 0... ccc ccc teens 16

C. Legitimacy and danger ..................45. 18

Ill

Upholding Section 3501 will begin a fresh round of

democratic debate on the admissibility of

ee nk cee ewetcoces 21

(iii)

iV

IV

If Miranda cannot be explained as an exercise of this

Court’s constitutional common law powers, then it

PeeeRA UO GURNEE occ cccccscccecccccccceccess 24

0, ee ee 30

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 521 U.S. 203, 138 L. Ed. 2d 391,

ee a ee CE wean cubekundekciowlusnets 26

Ailis-Chalmers Corp. v. Lueck, 471 U. S. 202,

85 L. Ed. 2d 206, 105 S. Ct. 1904 (1985) ........... 14

Arizona v. Roberson, 486 U. S. 675, 100 L. Ed. 2d 704,

SP Gb SEED 2 cdheccsbdsscaccoenes 3, 22, 29

Armstrong Paint & Varnish Works v. Nu-Enamel Corp.,

305 U.S. 315, 83 L. Ed. 195, 59 S. Ct. 191 (1938) ..... 8

Banco Nacional de Cuba v. Sabbatino, 376 U. S. 398,

11 L. Ed. 2d 804, 84S. Ct. 923 (1964) ............. 14

Barr v. Matteo, 360 U. S. 564, 3 L. Ed. 2d 1434,

PE et SP > butnccnebsddadiascnetentoes 16

Berkemer v. McCarty, 468 U. S. 420, 82 L. Ed. 2d 317,

Sey ah OED ond Necniede Séededscanncdcees 8

Bivens v. Six Unknown Fed. Narcotics Agents,

403 U. S. 388, 29 L. Ed. 2d 619, 91 S. Ci. 1999

SE 0 Ko 4ebEsdetnseh ances bebaenonsuseedeee 16

Boyle v. United Technologies Corp., 487 U. S. 500,

101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988) ....... 14, 15

Bram v. United States, 168 U. S. 532, 42 L. Ed. 568,

ED Sc pehavededanesscéiennces 26, 27

Brecht v. Abrahamson, 507 U. S. 619,

123 L. Ed. 2d 353, 113 S. Ct. 1710 (1993) .......... 22

Butler v. McKellar, 494 U. S. 407, 108 L. Ed. 2d 347,

FO Gs PEGE wee cicesevccsccveycescdces 11

California v. Prysock, 453 U. S. 355, 69 L. Ed. 2d 696,

OBS &. Gh. FROGS oc cde ccvevescécceceseuccocs 8

Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705,

pee RP ree aeéeidenwis 17

City of Boerne v. Flores, 521 U. S. 507,

138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997) .......... 19

Culombe v. Connecticut, 367 U. S. 568,

6 L. Ed. 2d 1037, 81 S. Ct. 1860 (1961) ............. 4

Doyle v. Ohio, 426 U. S. 610, 49 L. Ed. 2d 91,

—) Gee 0 Pree ree 22

Duckworth v. Eagan, 492 U. S. 195, 106 L. Ed. 2d 166,

Be rr ree 12, 25

Edwards v. Arizona, 451 U. S. 477, 68 L. Ed. 2d 378,

OS B, Ce, SG oc kv ccccccacccvccstcess 11,29

Erie R. Co. v. Tompkins, 304 U. S. 64,

82 L. Ed. 2d 1188, 58 S. Ct. 817 (1938) ............ 12

Fare v. Michael C., 442 U. S. 707, 61 L. Ed. 2d 197,

SOE. Ge. FRIIS GE occ ccceseccvcvestovsisccesce 8

Harris v. New York, 401 U. S. 222, 28 L. Ed. 2d 1,

GB B Ge, GED CIS GED cc ccccccccosccccscvensss 7, 9,25

Haynes v. Washington, 373 U. S. 503, 10 L. Ed. 2d 513,

SOE, Ch CRE oo vccciccbncessucescsceceese 4

Henslee v. Union National Bank, 335 U. S. 595,

93 L. Ed. 259, 69 S. Ct. 290 (1949) ..... 02... eee 13

Howard v. Lyons, 360 U. S. 593, 3 L. Ed. 2d 1454,

FOG. Ca. 1FSE CIGD) 2c csccccccccccsvccscccceucs 16

Illinois v. Gates, 462 U. S. 213, 76 L. Ed. 2d 527,

103 S. Ct. 2317 (1983) .. 0... cere e rc ccceeccccees 28

Vii

Illinois v. Perkins, 496 U. S. 292, 110 L. Ed. 2d 243,

Ss Ge OED 6-00 oes sbboedeenceeins cua It

Illinois v. Wardlow, 528 U.S. _ (No. 98-1036,

Pe EE Re dsvcdasdbnéaetencacotidanniooade 19

In re Garnett, 141 U.S. 1, 35 L. Ed. 631,

Se ENS ndnladssteledediesksnendeuve 14

In re Winship, 397 U. S. 358, 25 L. Ed. 2d 368,

SD gbbbis nn ea pancbaee seeds cous’ 18

Johnson v. New Jersey, 384 U.S. 719,

16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966) ....... 9, 27, 29

Kimel v. Florida Bd. of Regents, 528 U.S. __

ee ee UD ovigsdusttecbcdvenne de 19

Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081,

Se PE o. ckkkaddeducesachebieecennd 19

Maryland v. Wilson, 519 U. S. 408, 137 L. Ed. 2d 41,

ey TE ededchvusaddasccedeeiesee ns 1]

McGuire v. United States, 273 U. S. 95, 71 L. Ed. 556,

EE novvduddadnd csdedéSauendades 29

McNeil v. Wisconsin, 501 U. S. 171, 115 L. Ed. 2d 158,

ds néccddecmacvoatetes 4, 6, 26

Michigan v. Jackson, 475 U. S. 625, 89 L. Ed. 2d 631,

Ss HEE Sco dscns btadeesneses uveus 11

Michigan v. Mosley, 423 U. S. 96, 46 L. Ed. 2d 313,

EE ie ndutekbediebeenbaseudsue’ rye

Michigan v. Payne, 412 U. S. 47, 36 L. Ed. 2d 736,

IER 5 te bade cus caddtheccessvad 5,9

Michigan v. Tucker, 417 U. S. 433, 41 L. Ed. 2d 182,

Pe Ae EE caccenédctandésadéas 7, 9, 10, 25

viii

Mincey v. Arizona, 437 U. S. 385, 57 L. Ed-2d 290,

98 S. Ct. 2408 (1978) 2... eee eee eee 9, 29

Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694,

86 S. Ct. 1602 (1966) .. 0... eee ee eee ee eee Passim

Moragne v. States Marine Lines, Inc., 398 U. S. 375,

26 L. Ed. 2d 339, 90 S. Ct. 1772 (1970) ............ 14

Moran v. Burbine , 475 U. S. 412, 89 L. Ed. 2d 410,

106 S. Ct. 1135 (1986) ......... Coshunbiuawaans 6, 11

New Jersey v. Portash, 440 U. S. 450, 59 L. Ed. 2d 501,

FOG. Ca. IDDRCIGTDD 2 ov cccccccccccccccsccscces 9, 25

New York v. Quarles, 467 U. S. 649, 81 L. Ed. 2d 550,

104 S. Ct. 2626 (1984) 2.2... ccc cece eee eee 6, 25

Town of Newton v. Rumery, 480 U. S. 386,

94 L. Ed. 2d 405, 107 S. Ct. 1187 (1987) ........... 15

Old Chief v. United States, 519 U. S. 172,

136 L. Ed. 2d 574, 117 S. Ct. 644 (1997) ........... 20

Oregon v. Elstad, 470 U. S. 298, 84 L. Ed. 2d 222,

105 S. Ct. 1285 (1985) ....... cee eee eee 6-12, 22, 25

Oregon v. Hass, 420 U. S. 714, 43 L. Ed. 2d 570,

OS B. Cr. IDIS CIDTS) . cccccvcccccccccccccvece 7, 25

Oregon v. Mitchell, 400 U. S. 112, 27 L. Ed. 2d 272,

91S. Ct. WO (19TO) . 0. cc cccccccccccccccscscvess 19

Payne v. Tennessee, 501 U. S. 808, 115 L. Ed. 2d 720,

111 S. Ct. 2597 (1991) 2... cece ee ee eee eee 26

Public Citizen v. Department of Justice, 491 U. S. 440,

105 L. Ed. 2d 377, 109 S. Ct. 2558 (1989) ........... 8

Schweiker v. Chilicky, 487 U. S. 412, 101 L. Ed. 2d 370,

108 S. Ct. 2460 (1988) 2.0... cee ce ee eee eee ees 16

os

ix

Spencer v. Texas, 385 U. S. 554, 17 L. Ed. 2d 606,

og a nna eign 20

Stovall v. Denno, 388 U. S. 293, 18 L. Ed. 2d 1199,

I a i i Oo 2

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

a 2

United States v. Ceccolini, 435 U. S. 268,

55 L. Ed. 2d 268, 98 S. Ct. 1054 (1978) ............ 29

United States v. Dickerson, 166 F. 3d 667 (CA4 1999) ... 2

United States v. Washington, 431 U. S. 181,

52 L. Ed. 2d 238, 97 S. Ct. 1814 (1977) ............. 4

Victor v. Nebraska, 511 U. S. 1, 127 L. Ed. 2d 583,

as SPENT oo ok bc Ge nededesbececess 19, 20

Watts v. Indiana, 338 U. S. 49, 93 L. Ed. 1801,

SE ss ei ail dedi 4,5

Withrow v. Williams, 507 U. S. 680, 123 L. Ed. 2d 407,

ee EE 4 a's Kn ddvcnbekndidnseKhes 8,12

United States Constitution

pe IDENT du cndd eek seedebovvesc'otces 13

United States Statutes

PE Swivindsedisdwetioscoesdesncees 21

Se EE ccandéscveticodvésdaisseeess 21

Sy ie AED vo nascccndccocsstcecues 21

ND odd ii 6 daw ccna cgune bee oe ones 12

EEE peGkbesacccksieeeccesontsedce’s 14

State Constitution

ee, GS... BUR, Va ocav kvbbhocdqudkectanecscants 17

Foreign Statutes and Regulations

Criminal Justice and Public Order Act of 1994, § 34,

17 Halsbury’s Statutes of England and Wales

SG, GUE 6 6uvt covddcedbbudebenwerans<esnons 23

Police and Criminal Evidence Act, Codes of Practice

th a Ee. 64.4 che eeeeeeuecedeaussebinceess 23

Police and Criminal Evidence Act of 1984, § 66,

12 Halsbury’s Statutes of England and Wales

SO CHOP bonuses sé Gecenesinedcucbiosseesanes 23

Treatises

4 W. Blackstone, Commentaries (Ist ed. 1769)......... 24

R. Fallon, D. Meltzer, & D. Shapiro, Hart & Wechsler’s

The Federal Courts and the Federal System

SG, GUD hd dv ecededatedecdscudeavdesneenas 17

1 R. Rotunda & J. Nowak, Treatise on Constitutional Law

SG, Gees 00 oon bekuekeesdkadeuedenesesnses 14

3 J. Wigmore, Evidence (Chadbourn rev. 1970) ......... 8

Miscellaneous

Caplan, Questioning Miranda, 38 Vand. L. Rev. 1417

SEE bev ae vivedepevelathutenws kaeed 6, 23, 27, 29

W. Churchill, Speech at the Lord Mayor’s Day Luncheon

Ee. TE, GED cvocuadesevessccarecensse stances 21

The Federalist No. 82 (C. Rossiter ed. 1961)

CA, CD oc ccccccecanvdcedusnedvecssodvawe 14

xi

H. Friendly, Benchmarks (1967) ............. 7, 8, 13,27

Gardner, Section 1983 Actions Under Miranda:

A Critical View of the Right to Avoid Interrogation,

30 Am. Crim. L. Rev. 1277 (1993) ..............

Hart, The Power of Congress to Limit the Jurisdiction

of Federal Courts: An Exercise in Dialectic,

GP RD. Cee HENDL BE CONE co cv cc ccvicessccess

Meltzer, Harmless Error and Constitutional Remedies,

ee ee es OE bs cvvaxckbens accuse

Monaghan, F oreword: Constitutional Common Law,

er Oa PU cc tn ctééacdenesdcons

Schrock & Welsh, Reconsidering the Constitutional

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

Ne Foy

(

IN THE

Supreme Court of the United States

CHARLES THOMAS DICKERSON,

Petitioner,

vS.

UNITED STATES OF AMERICA,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF AFFIRMANCE

INTEREST OF AMICUS

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional protec-

tions of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

The present case involves an attempt to remove from the

people the power to decide when valid, probative evidence

taken in compliance with the Constitution may be admitted in

evidence. Such a result would be contrary to the interests CJLF

was formed to protect.

This brief was written entirely by counsel for amicus, as listed on the

cover, and not by counsel for any party. No outside contributions were

made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

__

.

SUMMARY OF FACTS AND CASE

Defendant Charles Dickerson has been indicted for the 1997

robbery of the First Virginia Bank in Alexandria, Virginia,

among other offenses. J. A. 32. Dickerson accompanied FBI

agents to the field office and gave a statement there. J. A. 141-

142. The District Court suppressed this statement, finding that

Dickerson was in custody, even though not formally arrested,

and had not received the warnings required by Miranda v.

Arizona. J. A. 151-155.

On motion for reconsideration, the government argued, “At

all events, since there is no evidence or even serious allegation

that Dickerson’s statements were involuntary, the statements

are admissible under 18 U. S. C. 3501(a), which provides that

‘in any criminal prosecution brought by the United States .. . a

confession shall be admissible if it is voluntarily given’

(emphasis added).” J. A. 87. The District Court denied the

motion. J. A. 156. The court refused to consider the govern-

ment’s additional evidence on the ground it was available at the

time of the original hearing. J. A. 159-160. The District Court

did not address the § 3501 argument.

The government appealed. However, it reversed its position

on § 3501, on which it had previously relied, and asserted that

the statute was unconstitutional, J. A. 163, United States v.

Dickerson, 166 F. 3d 667, 671 (CA4 1999). The Court of

Appeals held that the District Court was within its discretion to

refuse to consider belated evidence. J. A. 164, 166 F. 3d, at

671. Regarding § 3501, the Court of Appeals noted, “Over the

past few years, career federal prosecutors have tried to invoke

§ 3501 in this Court only to be overruled by the Department of

Justice.” J. A. 187, 166 F. 3d, at 681. The court nonetheless

proceeded to decide the issue. J. A. 191, 166 F. 3d, at 683; cf.

Stovall v. Denno, 388 U. S. 293, 294, n. 1 (1967) (case decided

on retroactivity, even though raised only by amicus); Teague v.

Lane, 489 U. S. 288, 300 (1989) (plurality opinion) (same).

The Court of Appeals reversed, holding § 3501 was valid

and that the District Court had implicitly held that the statement

was voluntary. J. A. 211-212, 166 F. 3d, at 692. This Court

granted certiorari, limited to Question 1. That question is the

constitutionality of §3501. Pet. for Cert. i. The denied

questions were the propriety of the Fourth Circuit’s consider-

ation of the issue and a Fourth Amendment claim. /bid.

SUMMARY OF ARGUMENT

The Miranda rule is a rule of evidence. That case did not

create any new constitutional rights. This Court’s repeated

characterizations of the Miranda rule as nonconstitutional are

holdings, not dicta, necessary to the decisions in those cases.

The federal courts can create federal common law in certain

specific cases of “uniquely federal interests.” The federal law

so created prevails over state law to the extent of any conflict,

and when decided by the Supreme Court is binding precedent

in state courts. Enforcement of federal constitutional rights is

one of those areas.

A decision in this case upholding § 3501 would open the

door to a fresh round of democratic debate on the admissibility

of confessions. Further congressional action would be needed

to lift the yoke of Miranda from state courts, but a favorable

decision on § 3501 would provide the needed assurance that

Congress can replace the Miranda rule. The legislative branch

has superior flexibility to achieve a proper balance of interests.

If the Court is truly forced to a choice between

constitutionalizing Miranda or overruling it, then it should

overrule it. Either choice involves overruling precedents, so

stare decisis does not indicate one choice over the other. The

Miranda rule is not required by the Constitution.

ARGUMENT

I. Miranda’s irrebuttable presumption creates no

constitutional right, but rather is a rule of evidence.

“(T]he rule of Edwards [v. Arizona, 451 U.S. 477 (1981)]

is our rule, not a constitutional command... .” Arizona v.

Roberson, 486 U. S. 675, 688 (1988) (Kennedy, J., dissenting).

This is equally true of Edwards’ parent decision, Miranda v.

Arizona, 384 U. S. 436 (1966).

When this Court chose to regulate custodial interrogations

in Miranda, it was stepping into one of the clearest conflicts

between the interests of the accused and of society. While

some innocent suspects may be able to clear themselves during

the interrogation, the overwhelming majority of suspects are

likely to damage their interests by incriminating themselves. As

Justice Jackson pointed out, “any lawyer worth his salt will tell

the suspect in no uncertain terms to make no statement to police

under any circumstances.” Watts v. Indiana, 338 U. S. 49, 59

(1949) (Jackson, J., concurring in the result).

Yet society must be allowed to have its police interrogate

suspects in custody. Banning custodial interrogation would

effectively eliminate confessions from criminal trials. See id.,

at 58. “Since the ready ability to obtain uncoerced confessions

is not an evil but an unmitigated good, society would be the

loser” from too many restrictions on police interrogation.

McNeil v. Wisconsin, 501 U. S. 171, 181 (1991). Voluntary

confessions “are inherently desirable.” United States v.

Washington, 431 U. S. 181, 187 (1977). Indeed, obtaining

proof beyond a reasonable doubt “ ‘often could not be achieved

by the prosecution without the assistance of the accused’s own

statement.’ ” Culombe v. Connecticut, 367 U. S. 568, 576

(1961) (opinion of Frankfurter, J.). “ ‘Questioning suspects is

indispensable in law enforcement.’ ” /d., at 578. The public

interest requires that police be allowed to conduct custodial

interrogations. /d., at 578-579. Custodial interrogation has

long been understood to be “undoubtedly an essential tool in

effective law enforcement.” Haynes v. Washington, 373 U. S.

503, 515 (1963).

Regulating police interrogations necessarily involves a

balancing of interests. Every protection given to the custodial

suspect is also an obstacle to solving crime. See Culombe,

supra, 367 U. S., at 580. The amount of protection afforded the

accused reflects a judgment on the relative worth of the

interests of society and the accused: “Is it [defendant’s] right to

have the judgment on the facts? Or is it his right to have a

judgment based on only such evidence as he cannot conceal

from the authorities, who cannot compel him to testify in court

and also cannot question him before?” Watts, supra, 338 U. S..,

at 59 (Jackson, J., concurring in the result).

The Miranda decision swung the pendulum sharply towards

the suspect’s interests. This Court’s policy judgment, given

force through Miranda’ s irrebuttable presumption and detailed

code of procedure, created no constitutional right. See Michi-

gan v. Payne, 412 U. S. 47, 54 (1973). Miranda is a rule of

evidence. This decision does not have the same force as a

constitutional precedent, but is instead an exercise of this

Court’s constitutional common law powers. See Part II, infra,

at 13-21. Miranda’s subconstitutional status allows Congress

to substitute its view of the appropriate balance of interests for

the Court’s in this crucial area of public policy.

A. Rule of Evidence.

Although the 50-plus page opinion sprawled over a wide

range of topics, in the end Miranda is simply an exclusionary

rule. The Court summarizes its own holding as this: “the

prosecution may not use statements, whether exculpatory or

inculpatory, stemming from custodial interrogation of the

defendant unless it demonstrates the use of procedural safe-

guards effective to secure the privilege against self-incrimina-

tion.” Miranda, supra, 384 U. S., at 444.

Mirar.da’s heart is found a few pages later.

“In these cases, we might not find the defendants’

statements to have been involuntary in traditional terms.

Our concern for adequate safeguards to protect precious

Fifth Amendment rights is, of course, not lessened in the

slightest. In each of the cases, the defendant was thrust into

an unfamiliar atmosphere and run through menacing police

interrogation procedures. The potentiality for compulsion

is forcefully apparent. ... The fact remains 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 were truly the product of free choice.” /d.,

at 457.

“A Miranda violation does not constitute coercion but

rather affords a bright-line legal presumption of coercion,

requiring suppression of all unwarned statements.” Oregon v.

Elstad, 470 U. S. 298, 304, 307, n. 1 (1985) (emphasis in

original); see also New York v. Quarles, 467 U. S. 649, 670

(1984) (O’Connor, J., concurring in judgment in part). Miran-

da’s presumption reflects this Court’s choice of the appropriate

balance between the suspect’s protections from interrogation

and society’s need to solve crimes. See, e.g., Moran v. Bur-

bine, 475 U. S. 412, 433, n. 4 (1986) (“the [Miranda] decision

. . . embodies a carefully crafted balance designed to fully

protect both the defendant’s and society’s interests”). Quarles,

467 U. S., at 658. Although the opinion declared that voluntary

confessions were a “proper element in law enforcement,”

Miranda, supra, 384 U. S., at 478, the Miranda Court chose to

tilt the balance sharply in favor of the criminal defendant. See

Caplan, Questioning Miranda, 38 Vand. L. Rev. 1417, 1469-

1472 (1985). This balance carries out this Court’s policy

concerning police interrogation.

Miranda and subsequent decisions have noted the “inher-

ently compelling pressures” of the interrogation room. See

Miranda, supra, 384 U. S., at 467; McNeil, supra, 501 U. S., at

176; Moran, supra, 475 U. S., at 420. But this alone does not

explain the Miranda presumption. While there may be some

compulsion in any custodial interrogation, it must not be too

compelling, since Miranda still allows waivers under these

circumstances. See 384 U. S., at 535-536 (White, J., dissent-

ing). If custodial interrogation were truly compelling as a

matter of constitutional law, then the Miranda Court should

have forbidden the practice.

As the Miranda Court implicitly recognized, there are many

circumstances under which a suspect can give an unwarned, but

still clearly voluntary custodial confession. In his dissent,

Justice White produced a hypothetical that undercuts any

presumption of compulsion in custodial interrogation.

“Although in the Court’s view in-custody interrogation is

inherently coercive, the Court says that the spontaneous

product of the coercion of arrest and detention is still to be

deemed voluntary. An accused, arrested on probable cause,

may blurt out a confession which will be admissible despite

the fact that he is alone and in custody, without any show-

ing that he had any notion of his right to remain silent or of

the consequences of his admission. Yet, under the Court’s

rule, if the police ask him a single question such as ‘Do you

have anything to say?’ or ‘Did you kill your wife?’ his

response, if there is one, has somehow been compelled,

even if the accused has been clearly warned of his right to

remain silent. Common sense informs us to the contrary.”

Miranda, supra, 384 U. S., at 533-534 (White, J., dissent-

ing).

Justice White’s common sense is supported by the facts.

Judge Henry Friendly’s public response to Miranda under-

scored the practical soundness of Justice White’s hypothesis.

“[T]he books are full of instances, of which the Court must

have been well aware through petition for certiorari, where it is

evident that in-custody interrogation did not represent the

exercise of compulsion.” H. Friendly, Benchmarks 272-273

(1967). Next, Judge Friendly lists four then-recent cases in

which there was no question that the custodial interrogation

produced a voluntary confession. See id, at 273, nn. 33-36

(citing United States v. Cone, 354 F. 2d 119 (CA2 1965);

United States v. Indiviglio, 352 F.2d 276 (CA2 1965); Evait v.

United States, 359 F. 2d 53 (CA9 1966); United States v.

D'Allesandro, 361 F. 2d 694, 698 (CA2 1966)). In the years

since Miranda, this Court has often found confessions to be

voluntary even though they were taken contrary to the Miranda

procedures. See, e.g., Elstad, supra, 470 U. S., at 312; Oregon

v. Hass, 420 U. S. 714, 722 (1975); Michigan v. Tucker, 417

U. S. 433, 449 (1974); Harris v. New York, 401 U.S. 222,224

(1971). The District Court implicitly found that in the present

case. See supra, at 2. “One could go on endlessly; there are

countless instances where a man apprehended with clear

evidence of crime on his person or identified by witnesses will

without the slightest if obstacles are not

artificially put in his way.” Friendly, supra, at 273. There must

be more to Miranda than any compulsion inherent in custodial

interrogations.

The policy that ties Miranda’s many strands together is

dissatisfaction with administering the voluntariness standard.

See Gardner, Section 1983 Actions under Miranda: A Critical

View of the Right to Avoid Interrogation, 30 Am. Crim. L. Rev.

1277, 1281-1282 (1993). This explains Miranda’s focus on

custody. A station house can be very difficult for judicial

scrutiny to penetrate. The Miranda rule finesses the problems

with custody by overprotecting the Fifth Amendment privilege.

Thus, “Miranda’s core virtue was affording police and courts

clear guidance on the manner in which to conduct a custodial

investigation.” Withrow v. Williams, 507 U.S. 680, 694 (1993)

(emphasis added; internal quotations omitted). See also

California v. Prysock, 453 U.S. 355, 359 (1981) (per curiam)

(Miranda “obviates the need for a case-by-case inquiry into the

actual voluntariness of the admissions”); Fare v. Michael C.,

442 U.S. 707, 718 (1979). So long as Miranda’s i’s are dotted

and t’s crossed, courts have much less need to undertake the

potentially messy task of penetrating the interrogation room and

utilizing the voluntariness test. Cf. Berkemer v. McCarty, 468

U. S. 420, 433, n. 20 (1984) (cases of colorable argument of

compulsion when Miranda rule is followed are “rare’’).

The Miranda rule achieves this goal through a detailed code

of interrogation procedure. See Miranda, supra, 384 U. S.., at

504 (Harlan, J., dissenting); Friendly, supra, at 267-268

(Miranda as legislation); 3 J. Wigmore, Evidence § 826a, p. 383

(Chadbourn rev. 1970) (Miranda as “new ‘code’ ”). The code

is sufficiently complex that it must be interpreted by this Court.

Compare Michigan v. Mosley, 423 U. S. 96, 102 (1975)

(avoiding a literal interpretation of Miranda that would lead to

an absurd result), with Public Citizen v. Department of Justice,

491 U.S. 440, 454 (1989); Armstrong Paint & Varnish Works

v. Nu-Enamel Corp., 305 U. S. 315, 332-333 (1938) (statutory

canon of avoiding literal interpretation that would lead to

absurd results). Miranda’s code operates as a rule of evidence,

an exclusionary rule. See Elstad, supra, 470 U. S., at 306 (“The

Miranda exclusionary rule”). This rule of evidence is not a

constitutional right, but, as this Court has often held, a prophy-

lactic rule that overprotects the Fifth Amendment privilege to

hE a

advance this Court’s policies through its constitutional common

law function.

B. The Nonconstitutional Prophylactic.

Because Miranda is a rule of evidence that sweeps more

broadly than the Fifth Amendment privilege, it creates no

constitutional right. This is demonstrated by the many limits

this Court has placed on Miranda. In Johnson v. New Jersey,

384 U.S. 719, 721 (1966), this Court declined to apply Miran-

da retroactively. It labeled Miranda’s procedures as “safe-

guards.” /d., at 730. Retroactively applying Miranda “would

require the retrial or release of numerous prisoners found guilty

by trustworthy evidence in conformity with previously an-

nounced constitutional standards.” Jd, at 731 (emphasis

added). If the act of taking a confession contrary to Miranda

were truly unconstitutional, i.e., if those confessions were truly

compelled, then the evidence would be suspect and the case for

retroactivity would have been much stronger. See Michigan v.

Payne, 412 U.S. 47, 54 (1973).

The next chink in Miranda’s armor was found in Harris,

supra, 401 U. S., at 226, which held that voluntary statements

taken contrary to Miranda can be used to impeach the defen-

dant’s testimony. The deterrent of Miranda’s exclusionary rule

was Satisfied by excluding the evidence from the State’s case-

in-chief. /d., at 225. By contrast, statements that are in fact

unconstitutionally compelled cannot be admitted for impeach-

ment. See Mincey v. Arizona, 437 U. S. 385, 397-398 (1978).

Compelled statements are not the same as merely un-Miran-

dized statements. See New Jersey v. Portash, 440 U. S. 450,

459 (1979). Application of Miranda permits balancing because

it involves no actual constitutional violation, while use of

actually compelled statements is constitutionally prohibited,

permitting no balancing. See infra, at 25.

The cases which nail down the nonconstitutional status of

Miranda are the “fruit of the poisonous tree” cases: Michigan

v. Tucker, supra, and Oregon v. Elstad, supra. Tucker involved

a statement taken with advisements and a waiver but without

notice that a lawyer would be provided without charge if the

suspect could not afford one. See 417 U. S., at 436. The

10

statement itself was suppressed, but the testimony of a witness

revealed by the statement was admitted. /d., at 436-437. The

questioning was before Miranda, but the trial was afterward,

and hence Miranda applied. /d., at 435.

Tucker’s argument was that the “fruit of the poisonous tree”

doctrine developed in Fourth Amendment cases required

exclusion of the “fruit.” The Tucker Court rejected the argu-

ment based squarely on the nonconstitutional status of Miranda.

“This Court has also said, in Wong Sun v. United States,

371 U. S. 471 (1963), that the ‘fruits’ of police conduct

which actually infringed a defendant’s Fourth Amendment

rights must be suppressed. But we have already concluded

that the police conduct at issue here did not abridge respon-

dent's constitutional privilege against compulsory self-

incrimination, but departed only from the prophylactic

standards later laid down by this Court in Miranda to

safeguard that privilege. Thus. . . there is no controlling

precedent . . . to guide us.” /d., at 445-446 (footnote

omitted; emphasis added).

While the Tucker Court arguably might have distinguished

Wong Sun on some other ground, it actually distinguished that

case on the constitutional versus nonconstitutional status of

rules violated. See also id., at 444. This is the ratio decidendi

of the case.

Oregon v. Elstad, supra, reiterates this holding. That case

involved a claim that a properly warned statement of the

defendant himself was “tainted” by a prior, unwarned state-

ment, again relying on Wong Sun. See Elstad, supra, 470 VU. S.,

at 302-303. The Court noted that Elstad’s Wong Sun argument

“assumes the existence of a constitutional violation.” /d., at

305. That assumption was incorrect. The Elstad Court

reaffirmed Tucker’s holding that Wong Sun was not controlling

because “there was no actual infringement of the suspect’s

constitutional rights... .” /d., at 308.

In dissent, Justice Stevens made precisely the argument that

the government and the defendant make in the present case, i.e.,

that the authority of the Court to impose the Miranda rule on

the states necessarily implies that the rule is constitutionally

ae

ll

required. /d., at 370-371. The Elstad Court rejected that

argument. See id., at 306-307, n. 1 (majority opinion); cf. id.,

at 370, n. 15 (Stevens, J., dissenting). The Court reaffirmed

that “a simple failure to administer Miranda warnings is not in

itse!f a violation of the Fifth Amendment.” /d., at 306, n. 1.

Miranda is a nonconstitutional rule of evidence. See supra, at

6.

Against the square holdings of Tucker and Elstad, where the

nonconstitutional status of Miranda was the ratio decidendi of

the case, the government submits obiter dicta in cases where

the status made no difference. See Brief for the United States

24-25. !llinois v. Perkins, 496 U. S. 292, 296 (1990) held that

the inherent compulsion in Miranda did not extend to the

undercover agent situation, and hence the rule did not extend

there. Butler v. McKellar, 494 U. S. 407, 411 (1990) merely

described the holding of an earlier case. Such a description is

dictum. See Maryland v. Wilson, 519 U. S. 408, 412 (1997).

Michigan v. Jackson, 475 U. S. 625, 629-630 (1986) involved

the Sixth Amendment right to counsel. Whether the Miranda

rule was itself required by the Fifth Amendment was not before

the Court. Moran v. Burbine, supra, 475 U. S., at 419, in-

volved a lower court holding that failure to inform an arrestee

that an attorney had called fatally tainted an otherwise valid

waiver of the self-incrimination privilege. This Court reversed

because such a rule “would contribute to the protection of the

Fifth Amendment privilege only incidentally, if at all.” Jd., at

427. That holding and the reason for it did not depend on the

status of Miranda as constitutional versus prophylactic. The

tangential reference to “our interpretation of the Federal

Constitution,” ibid., cannot be understood to overrule the square

holding of Elstad, decided only a year earlier and authored by

the same Justice, or Tucker, a decision it quotes on this very

point. See id., at 424-425 (quoting Quarles quoting Tucker).

Finally, Edwards v. Arizona, 451 U.S. 477, 481 (1981) merely

makes another passing reference to the holding of an earlier

case, which is dictum. Edwards reconfirmed the holdings of

earlier cases, see id., at 485, and the constitutional status of the

rules was not in issue.

12

The government relies on a statement from Withrow v.

Williams, supra, that “[p]rophvlactic though it may be, in

protecting a defendant’s Fifth Amendment privilege against

self-incrimination, Miranda safeguards a fundamental trial

right,” 507 U. S., at 691 (emphasis and internal quotation marks

omitted). This did not establish Miranda as a constitutional

right. On the contrary, the decision is expressly premised on

the assumption “that Miranda’s safeguards are not constitu-

tional in character... .” /d., at 690.2 The government is

incorrect when it attempts to separate Miranda’s status as a

prophylactic rule from its nonconstitutional status. See Brief

for the Uniied States 24-25. “Like all prophylactic rules, the

Miranda rule ‘overprotects’ the value at stake.” Duckworth v.

Eagan, 492 U.S. 195, 209 (1989) (O’Connor, J., concurring).

Miranda is prophylactic because it “sweeps more broadly than

the Fifth Amendment itself” “and may be triggered even in the

absence of a Fifth Amendment violation.” Elstad, supra, 470

U. S., at 306. Since its rule goes beyond what the Fifth Amend-

ment requires, the Miranda prophylactic logically must be

extraconstitutional.

The nonconstitutional status of Miranda is inescapable.

The policy reasons that form its rationale, its extraconstitutional

scope, and the many limits this Court has placed on the initial

Miranda ruling all point to a decision that involves something

other than a constitutional right. The Miranda Court chose to

displace analysis of the actual voluntariness of the custodial

confession with a prophylactic bright-line rule that purported to

keep courts from having to penetrate the interrogation room in

any great depth. Miranda therefore is best explained as an

2. The unequivocal holding of Withrow, that diminished review on habeas

does not follow from nonconstitutional status, ibid., demolishes the

argument that constitutional status may be inferred from cognizability

on habeas. See Brief for the United States 24. The argument that the

word “laws” in 28 U. S. C. § 2254(a) can only refer to statutes, not

common law, is patently meritless in any event. The opposite

proposition had been established in one of the great cases of American

jurisprudence a mere ten years before Congress enacted § 2254. See

Erie R. Co. v. Tompkins, 304 U. S. 64, 72-73 (1938). Congress was

surely aware of that construction.

13

exercise of this Court’s constitutional common law function,

which can be revised by Congress.

II. The Supreme Court can create common law rules

for the adjudication of constitutional rights which are

binding on the states but subject to revision by Congress.

The defendant and the government assert that the rule of

Miranda v. Arizona, 384 U. S. 436 (1966) must be required by

the Constitution, because otherwise it could not be binding on

state courts. See Brief for the United States 23-24; Brief for

Petitioner 20-21. They assert this with all the confidence of a

bridge player who has just led the ace of trumps for the rubber

trick, and thus gloss over the main point of this case.

Their ace is actually a deuce. There are many areas of law

in which this Court establishes federal common law (i.e., judge-

made) rules binding on the states yet subject to revision or

abrogation by Congress. Miranda is just one of many.

The theory of the legitimacy of such rules is laid out in

Monaghan, Foreword: Constitutional Common Law, 89

Harv. L. Rev. | (1975). The defense lawyer amici refer to this

work disparagingly as a “twenty-five-year-old law review

article,” see Brief for National Ass’n of Criminal Defense

Lawyers et al. as Amici Curiae 16, as if the force of the argu-

ment is somehow diminished merely by the passage of time.

Wisdom too often never comes, and so one ought not reject it

merely because it came early. Cf. Henslee v. Union Planters

Bank, 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting).

A. Federal Interests.

“The clarion yet careful pronouncement of Erie, ‘There is

no federal general common law,’ opened the way to what, for

want of a better term, we may call specialized federal common

law.” H. Friendly, Benchmarks 178 (1967). There are many

areas which this Court has held to be governed by federal law

even though that law cannot be found in the Constitution or any

Act of Congress. Admiralty and maritime law is one such area.

The Constitution includes these cases in the jurisdiction of

federal courts. See U. S. Const., Art. III, § 2. However, the

courts of one sovereign may hear cases arising under the laws

14

of another, see The Federalist No. 82, p. 493 (C. Rossiter ed.

1961) (A. Hamilton), so it does not follow that the substance of

maritime law must be federal. Even so, this Court does hold

that the law is federal, see, e.g., Moragne v. State Maritime

Lines, Inc., 398 U. S. 375, 401, n. 15 (1970), fashioned by

courts in the absence of congressional action but always subject

to revision by Congress. See Jn re Garnett, 141 U.S. 1, 12

(1891); 1 R. Rotunda & J. Nowak, Treatise on Constitutional

Law § 3.4, pp. 352-355 (3d ed. 1999).

Federal common law, and not the state law of contracts and

shipping documents, determined the outcome in Banco

Nacional de Cuba v. Sabbatino, 376 U. S. 398 (1964). Ina

diversity jurisdiction case, see id., at 421, n. 20, the federal

common law “act of state doctrine” was held controlling. See

id., at 439. Although it has “constitutional underpinnings,” this

doctrine is not constitutionally required, see id., at 423, yet it

determined the outcome of a case otherwise governed by state

law.

Labor contracts are another area where federal common law

has trumped state law. Congress has assigned labor contract

cases to federal courts, 29 U. S. C. § 185(a), and this statute,

purely jurisdictional on its face, has been held to “express[ ] a

federal policy that the substantive law to apply . . . ‘is federal

law, which the courts must fashion from the policy of our

national labor laws.’ ” Allis-Chalmers Corp. v. Lueck, 471

U.S. 202, 209 (1985) (quoting Textile Makers v. Lincoln Mills,

353 U. S. 448, 456 (1957)). Under this doctrine, Allis-Chalm-

ers reversed the judgment of a state court in a state-law tort

case, on the ground that allowing the tort claim would subvert

the congressional goal of a unified body of labor contract law.

Id., at 220.

Federal interests similarly scuttled a state-law tort suit in

Boyle v. United Technologies Corp. , 487 U.S. 500 (1988). No

federal statute proscribed this design defect suit against a

federal contractor.

“But we have held that a few areas, involving ‘uniquely

federal interests,’ [citation] are so committed by the Consti-

tution and laws o” the United States to federal control that

a pone wal

15

state law is pre-empted and replaced, where necessary, by

federal law of a content prescribed (absent explicit statutory

directive) by the courts—so-called ‘federal common law.’ ”

Id., at 504 (citing Banco Nacional, supra, and other cases).

The existence of federal common law binding on state

courts is not an “untenable theory,” cf. Brief for the United

States 26, but rather a legal doctrine established beyond serious

dispute. The government’s catalog of prophylactic rules, see

id., at 44-47, confirms rather than refutes that criminal proce-

dure cases are included.

Those seeking to discredit the federal common law thesis as

applied to criminal procedure have claimed it is limited to cases

where uniformity is the federal interest. See Schrock & Welsh,

Reconsidering the Constitutional Common Law, 91

Harv. L. Rev. 1117, 1134 (1978). Boyle negates this notion.

The federal interest threatened by the state tort law was the

ability of the government to get its contracts filled at the lowest

possible price, Boyle, supra, 487 U. S., at 507, not uniformity

of law. The touchstone is “uniquely federal interests,” id., at

504, which might be a need for uniformity, see id., at 508, or

might be something else.

That “something else” may be enforcement of federal rights,

whether constitutional or statutory. In Town of Newton v.

Rumery, 480 U. S. 386, 390-391 (1987), the plaintiff had

entered into a contract releasing his federal civil rights claims,

primarily Fourth Amendment claims, against the town. The

Court held perfunctorily that the validity of the release would

be governed by federal law. /d., at 392. That law was not

established by statute. It was determined by courts “by refer- --

ence to traditional common-law principles.” bid.

Considering Town of Newton in light of Boyle, we may ask

what is the “uniquely federal interest” that allows federal

common law to override otherwise applicable state law on the

validity of contracts. Only one interest appears pertinent—the

federal interest in enforcing the Fourteenth Amendment,

including the “incorporated” provisions of the Bill of Rights.

That is precisely the same interest involved in the remedies and

criminal procedure cases.

16

B. Remedies and Review.

When one person has wrongfully injured another in his

person, property, or reputation, the usual remedy is damages in

tort in a suit brought under state law. However, when the

malefactor is an employee of the federal government and the

wrong is a violation of the Constitution, the plaintiff will find

his remedy governed largely by federal law, primarily judge-

made federal law.

On one side, the plaintiff who seeks traditional tort reme-

dies will find the reach of the state law remedy limited by the

doctrine of immunity. In Barr v. Matteo, 360 U. S. 564 (1959)

and Howard v. Lyons, 360 U. S. 593 (1959), the plaintiffs

brought libel suits under local defamation law. See Barr, at

577, n. * (Black, J., concurring in the judgment). Both suits

were barred by a body of federal law, which “has in large part

been of judicial making.” /d., at 569 (plurality opinion). This

federal common law prevailed over state and District of

Columbia law, but it was subject to the power of Congress to

substitute a different rule. See id., at 577 (Black, J., concurring

in the judgment).

On the other side of the remedial coin, we find Bivens v. Six

Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). That

case created, in effect, a federal common law tort action for the

violation of federal constitutional rights by federal officers.

The Bivens action, however, is not constitutionally required.

Congress has broad powers over the scope of remedies. In

Schweiker v. Chilicky, 487 U.S. 412 (1988), the Court declined

to extend Bivens to a case of denial of a benefit without due

process because Congress had provided another remedy, even

though that remedy fell well short of complete relief. /d., at

425. “It must be plain that Congress necessarily has a wide

choice in the selection of remedies, and that a complaint about

action of this kind can rarely be of constitutional dimension.”

Hart, The Power of Congress to Limit the Jurisdiction of

Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev.

1362, 1366 (1953).

Given these rules, we may ask several questions. By what

authority does the United States Supreme Court block a state-

17

law tort action when no federal statute or constitutional

provision forbids it? By what authority does the Court autho-

rize a federal-question lawsuit by one individual against another

in the absence of a statute providing an action? And by what

authority does Congress substitute an incomplete remedy for

that cause of action?

The answer must be that protection of federal constitutional

rights and protection of federal employees from lawsuits over

the performance of their duties are “uniquely federal interests”

within the meaning of Boyle, supra. Courts create the govern-

ing law, but Congress has the last word if it chooses to speak.

Either way, federal law prevails over state law to the extent of

a conflict. See R. Fallon, D. Meltzer, & D. Shapiro, Hart &

Wechsler’s The Federal Courts and the Federal System 876-877

(4th ed. 1996).

The rule of Chapman v. California, 386 U. S. 18 (1967) is

analogous to Bivens. See Meltzer, Harmless Error and Consti-

tutional Remedies, 61 U. Chi. L. Rev. 1, 29-30 (1994). A

criminal appellant with a constitutional claim, like a Bivens

plaintiff, is the moving party, claims that his rights have been

violated, claims he has been injured by the violation, and seeks

relief. The injury and relief components of the claim are where

federal common law comes in.

Chapman involved a state constitutional provision, the

predecessor of Cal. Const., Art. VI, § 13, which established a

standard for deciding reversible versus harmless error. See

Chapman, supra, 386 U. S., at 20, n. 3. Chapman held that

federal law overrode the state standard. /d., at 20-21. “The

Chapman opinion was cryptic, however, about the source of the

rule it announced.” Meltzer, supra, 61 U. Chi. L. Rev., at 2.

Space does not permit an extended discussion here, but

Professor Meltzer reviews the possible sources and concludes

“that the harmless error rule should be seen as constitutional

common law.” /d., at 26. In particular, the Chapman standard

is not mandated by the Constitution. See id., at 24-26. As the

Chapman opinion itself states, the responsibility, and presum-

ably the authority, of the Court to fashion a rule exists only “in

the absence of appropriate congressional action.” 386 U. S., at

21. A court-made rule which overrides a state constitutional

18

provision, yet is subject to revision by Congress, can only be

explained as federal common law.

Miranda and Chapman are strongly analogous in that both

rules recognize the inherent uncertainty of the underlying

determination, and both are based on an assessment of the

relative harm of erring in one direction versus the other. See

supra, at 6. If we always knew to a certainty whether an error

contributed to a verdict or not, there would be no need for a

harmless error “standard.” Errors known to be harmful would

be remedied by reversal, and those known to be harmless would

not. A standard of “beyond a reasonable doubt” implements a

value judgment that error in one direction is far worse than error

in the other. See /n re Winship, 397 U. S. 358, 364 (1970). The

Chapman standard accepts reversal of a large number of

judgments for errors which probably did not affect the verdict

as the price for fixing those errors that did affect the verdict, but

which might be erroneously judged harmless under a lesser

standard. That reasonable people might differ on this value

judgment is illustrated by the large number of states with less

rigid rules before Chapman. See Meltzer, supra, 61

U. Chi. L. Rev., at 22, n. 89. Miranda similarly skews the risk

of error. A large number of voluntary, and hence constitutional,

confessions are excluded in order to minimize the risk of

erroneously letting in an occasional involuntary one. See supra,

at 6-7. Miranda and Chapman belong to the same species.

Both are federal common law rules, created to safeguard

constitutional rights but not themselves constitutionally

required.

C. Legitimacy and Danger.

The objection is made that recognizing such acommon-law-

making power in this Court would dangerously expand the

Court’s power. See Schrock and Welsh, supra, 91

Harv. L. Rev., at 1126-1127. There are two answers. First, the

power should be carefully limited to that needed to effectuate

constitutional rights and not to expand the scope of those rights,

similar to the limits on Congress’s power under §5 of the

Fourteenth Amendment. Second, however dangerous the power

to make rules like Miranda might be if they are subject to

revision by Congress, the power to make the same rules

19

immune from revision by Congress would be vastly more

dangerous.

Amicus parts company with Professor Monaghan when he

says constitutional common law could be used “to impose on

the states .. . all the best features of the Federal Rules of

Criminal Procedure and th Federal Rules of Evidence.”

Monaghan, supra, 89 Harv. L. Rev., at 43. That would be

precisely the supervisory power this Court has always dis-

claimed. See, e.g., Victor v. Nebraska, 511 U.S. 1, 17 (1994).

The proper line of demarcation is between the scope of the

right and the enforcement of the right. This is the same line that

marks the limit of Congress’s enforcement powers. Congress

cannot expand the substantive scope of rights so as to take from

states powers left to them by the Constitution. See City of

Boerne v. Flores, 521 U.S. 507, 519 (1997). Enforcement may

sometimes sweep more broadly than the constitutional provi-

sion itself, when necessary to protect a right from being denied

in practice through the burden and uncertainty of case-by-case

litigation. A ban on all literacy tests for voting, for example,

swept out valid tests along with the ones so notoriously used for

racial discrimination, yet the ban was valid. See Oregon v.

Mitchell, 400 U. S. 112, 283-284 (1970) (Stewart, J., concur-

ring in part and dissenting in part). This Court refers to such

legislation as “prophylactic,” see Kimel v. Florida Bd. of

Regents, 528 U.S. __ (No. 98-791, Jan. 11, 2000) (slip op., at

24), the same word it uses to describe Miranda.

As applied to criminal procedure, enforcement consists of

two kinds of rules. Some enforcement rules govern the

procedure and evidence by which a court determines whether a

violation has occurred, or, in self-incrimination suppression

hearings, whether admission of the evidence would be a

violation. The other kind of enforcement tule is a rule of

remedy. Once a court determines a violation has occurred,

what, if anything, does it do about it? Chapman and Mapp v.

Ohio, 367 U. S. 643 (1961) are rules of remedy. These two

kinds of rules are different from rules defining the scope of the

right, such as whether a detention is “reasonable,” see, e.g.,

Illinois v. Wardlow, 528 U.S. __ (No. 98-1036, Jan. 12, 2000),

20

or whether a definition of “reasonable doubt” comports with the

Due Process Clause. See, e.g., Victor, supra, 511 U. S., at 15.

The distinction can be illustrated by comparing the law of

admissibility of confessions with the law of admissibility of

prior convictions. The better practice, it is widely recognized,

is to keep the information on prior convictions presented to the

jury to the minimum the jury needs to answer the questions

before it. See Old Chief v. United States, 519 U.S. 172, 185-

186 (1997). This Court can require federal district courts to

observe that practice in federal prosecutions, either by supervi-

sory power or by extrapolation from the very general wording

of federal rules. See id., at 191-192. However, there is no

constitutional prohibition against telling the jury about the

priors. See Spencer v. Texas, 385 U. S. 554, 563 (1967). As

there is no constitutional violation and no danger of one, this

Court has no authority to impose the better practice on the

states. See id., at 564. With confessions, the Constitution

draws the line at voluntariness. The Constitution itself excludes

confessions which are actually over the line, and the federal

enforcement power is limited to excluding those which present

an unacceptable risk of being over the line. How much risk is

acceptable is a policy choice subject to congressional revision.

Miranda thus falls with a narrow definition of the constitu-

tional common law, one that can be adopted without making the

federal judiciary a more dangerous branch than it already is.

The competing proposition, that this Court should

constitutionalize Miranda, involves a far greater danger.

Indeed, the very idea that judicial restraint could be proffered as

a rationale for this step is remarkable, to say the least. As we

discuss in part IV, infra, at 26, Miranda had no basis in

precedent or in the text or history of the Constitution. If the

Fifth Amendment did not require this formulation when it was

adopted, did not require it when it was “incorporated” in the

Fourteenth, and did not require it any time prior to 1966, how

can it require it today? That would be possible only if this

Court had the power to enlarge the scope of constitutional rights

based on its own notions of policy, as opposed to construing the

Constitution based on its text and history to determine what

rights it actually confers. The power to not only promulgate a

21

rule like Miranda but also to place it above congressional

revision would be vastly more dangerous than a properly

limited common law enforcement power.

III. Upholding Section 3501 will begin a fresh round of

democratic debate on the admissibility of confessions.

A decision upholding 18 U. S. C. § 3501 would not be the

end of Miranda v. Arizona, 384 U. S. 436 (1966). It would not

even be the beginning of the end. It might be the end of the

inning. Cf. W. Churchill, Speech at the Lord Mayor’s Day

Luncheon (Nov. 10, 1942), quoted in J. Bartlett, Familiar

Quotations 746 (15th ed. 1980).

The statute, by its terms, applies only to federal prosecu-

tions. See § 3501(a). These are the cases where Miranda was

least needed. Federal law enforcement had already adopted a

form of warning before Miranda, see 384 U. S., at 483-484, and

doubtless will continue giving warnings under the statute. See

§ 3501(b)(3), (4) (warnings are a factor in determining volun-

tariness); see also Brief for FBI Agents Association as Amicus

Curiae. As federal common law, Miranda will continue as

controlling precedent in state courts unless and until Congress

replaces it with a different rule. Upholding § 3501 would make

a dramatic change in the legislative landscape, however, by

confirming that Congress does have broad power to prescribe

the rules of procedure and evidence for the adjudication of self-

incrimination claims.

Those who view the American people as knuckle-dragging

Neanderthals with contempt for the Bill of Rights recoil in

horror at the very suggestion that the people, through the

democratic process, might review and revise the inspired

wisdom of Miranda. Amicus CJLF has a more optimistic view

of our countrymen.

Defendant asserts that Miranda has widespread acceptance

beyond the legal culture, Brief for Petitioner 44, i.e., among the

public as a whole. To the extent this statement refers to the

core Miranda holding—mandatory warnings for suspects

actually arrested—we concur. That is why the warnings are in

little or no danger from future congressional action. Although

22

Congress could simply make § 3501 apply to the states, it is

unlikely to do so. The 1968 act was a legislative overreaction

to judicial overreaching: Newton’s Third Law applied to

politics. Now that tempers have cooled for over three decades,

a fresh examination by Congress will surely produce a more

nuanced approach. The assertions of law enforcement support

for giving the warnings, see Brief of Griffin B. Bell ef al. as

Amici Curiae 8-11, are beside the point.

The government notes, and amicus agrees, that the core

Miranda requirement is easily applied. Brief for the United

States 34-35. The government further notes, again correctly,

that the extensions of Miranda have blurred the bright line that

was originally the rule’s greatest virtue. See id., at 35-36. Even

the original rule loses its bright-line character when applied to

persons who claim to have been “in custody,” even though not

formally arrested, see id., at 36, n. 26, as the present case

vividly illustrates. Difficult questions of voluntariness are

simply replaced by “murky and difficult questions of when

‘custody’ begins.” Oregon v. Elstad, 470 U. S. 298, 316

(1985).

Surprisingly, the government submits these observations in

support of an argument to cast Miranda into constitutional

concrete. Amicus submits that these are powerful arguments to

return the issue to legislative control. Congress could require

the warnings for those formally arrested and then specify in

objective terms what other circumstances will trigger the

requirement. Congress could reconsider whether an appropriate

weighing of the costs and benefits really warrants the rule of

Arizona v. Roberson, 486 U.S. 675 (1988), and it could do so

free of the baggage of stare decisis.

As another example, the rule of Doyle v. Ohio, 426 U. S.

610 (1976) excludes valid, probative evidence. See Brecht

v. Abrahamson, 507 U. S. 619, 628 (1993). It does so even

though use of an arrestee’s silence does not violate the self-

incrimination privilege. /bid. It does so only because the use

contradicts the implied promise of the mandatory warnings. /d.,

at 628-629. Once the language of the warnings is under

legislative control, Congress could deal with this problem by

altering the wording of the warnings, thus restoring a valid and

23

valuable source of evidence needlessly excluded by current

doctrine

In Britain, the warnings are established by regulation. See

Police and Criminal Evidence Act of 1984, § 66, 12 Halsbury’s

Statutes of England and Wales 873 (4th ed. 1997). The

opposite of our Doyle rule is established by statute, see Crimi-

nal Justice and Public Order Act of 1994, § 34, 17 Halsbury’s

Statutes, at 278-279, and so the warning was modified to

conform. /d., at 279, notes. British arrestees are now warned,

“You do not have to say anything. But it may harm your

defence if you do not mention when questioned something

which you later rely on in court. Anything you do say may be

given in evidence.” Police and Criminal Evidence Act, Codes

of Practice, Code C § 10.4 (rev. ed. 1999). This warning,

amicus submits, strikes the balance better than Miranda/Doyle.

See Caplan, Questioning Miranda, 38 Vand. L. Rev. 1417,

1469 (1985).

A legislatively controlled law of confessions could take

better advantage of changing technology. As recording

becomes easier and cheaper, a rule to record all station-house

interrogations might be a preferable substitute. See Gardner,

Section 1983 Actions Under Miranda: A Critical View of the

Right to Avoid Interrogation, 30 Am. Crim. L. Rev. 1277, 1287

(1993). To find out whether it is, Congress could authorize a

pilot program limited in time and territory, something the

judicial branch could never do through legitimate constitutional

jurisprudence.

The original Miranda opinion invited legislative participa-

tion, see 384 U. S., at 467, but under conditions no responsible

legislator could support. The invitation to construct alternatives

came with the implied threat to strike them down ex post facto

if the Court found they did not provide equally effective

protection for the suspect. See ibid.; Gardner, supra, 30

Am. Crim. L. Rev., at 1287. Invalidation of a standard practice

is a disaster, requiring an already overburdened system to retry

and possibly set free thousands of convicted criminals.

Miranda’s invitation gave legislatures a choice between a

procedure the Court had endorsed and a stroll through a

minefield. While a state might add additional procedures on

24

top of Miranda, no responsible legislature or executive could

risk experimenting with a substitute under such conditions.

Only a recognition of broad congressional authority, without the

strict scrutiny implied by Miranda, will invigorate a fresh

democratic debate.

The main impediment to legislative action to enforce the

Fifth Amendment is not hostility to civil liberties but simply

inertia. Criminal law is not high on the legislative priority list,

a problem of long standing. See 4 W. Blackstone, Commentar-

ies 4 (1st ed. 1769).’ In this case, inertia is on Miranda’s side.

That precedent remains applicable to the states until new

congressional action provides a substitute.

It is high time for a fresh examination of the tangled mass

of rules and subrules that make up the body of jurisprudence

begun by Miranda and extended by cases such as Roberson and

Doyle. The legislative branch has the flexibility and adaptabil-

ity the task requires. It is time to remove the Miranda strait-

jacket and allow the people’s representatives to resolve these

issues. Amicus CJLF urges the Court to throw open the doors

and let in the fresh air of a robust new round of democratic

debate.

IV. If Miranda cannot be explained as an exercise

of this Court’s constitutional common law powers,

then it should be overturned.

The government first asserts that there are only two paths

this Court can follow—constitutionalize Miranda or overrule

it. Brief for the United States 29. The government then asserts

stare decisis as blocking the overruling path, leaving only

constitutionalization. /d., at 29-31. The defendant makes a

similar argument. Brief of Petitioner 30-31.

3. “Were even a committee appointed but once in a hundred years to

revise the criminal law, it could not have continued to this hour [1769]

a felony without benefit of clergy [i.e., a capital offense], to be seen for

one month in the company of persons who call themselves, or are

called, Egyptians.”

25

Actually, stare decisis blocks both paths. If the Court is

really forced to the choice the government asserts is necessary,

then it will have to overrule some precedent—either Miranda

itself with all its progeny or the many cases holding that the

Constitution does not require the Miranda rule.

As noted earlier, this Court has often labeled Miranda’s

rules and procedures, not as constitutional rights themselves,

but as prophylactic safeguards for the Fifth Amendment

privilege. See supra, at 9-13. Such statements are not dicta,

but instead play a central role in limiting Miranda’s invasive

regulation of police procedure. Thus in New York v. Quarles,

467 U. S. 649, 655-658 (1984), this Court could engage in a

balancing of interests and craft a public safety exception to

Miranda because “[t]he prophylactic Miranda warnings are ‘not

themselves rights protected by the Constitution.’ ” /d., at 654

(quoting Michigan v. Tucker, 417 U. S. 433, 444 (1974)). By

comparison, the constitutional right to be free from compelled

self-incrimination is not amenable to any policy related to

balancing of interests. In New Jersey v. Portash, 440 U. S. 450

(1979), this Court held that compelled but immunized testi-

mony could not be used to impeach the declarant ina subse-

quent criminal proceeding. This Court distinguished such

testimony from statements taken contrary to Miranda, which

can be used to impeach. See Oregon v. Hass, 420 U. S. 714,

723-724 (1975); Harris v. New York, 401 U. S. 222, 225

(1971).

“Balancing of interests was thought to be necessary in

Harris and Hass when the attempt to deter unlawful police

conduct collided with the need to prevent perjury. Here, by

contrast, we deal with the constitutional privilege against

compulsory self-incrimination in its most pristine form.

Balancing, therefore, is not simply unnecessary. It is

impermissible.” Portash, supra, 440 U. S., at 459 (empha-

sis added).

The limits on Miranda such as those found in Quarles,

Harris, Hass, Michigan v. Tucker, 417 U. S. 433, 445 (1974)

(fruit of the poisonous tree doctrine inapplicable to Miranda),

Oregon v. Elstad, 470 U. S. 298, 308 (1985) (same), Duck-

worth v. Eagan, 492 U. S. 195, 203 (1989) (variation on

26

Miranda warnings), and McNeil v. Wisconsin, 501 U.S. 171,

180-182 (1991) (request for counsel at judicial proceeding is

not a Miranda invocation) would probably not survive Miran-

da’s transformation from a nonconstitutional prophylactic to a

constitutional right. The balancing of interests that is the

hallmark of most of this Court’s Miranda jurisprudence cannot

be squared with a decision in this case equating the Miranda

procedures with the actual Fifth Amendment privilege.

Transforming Miranda into a constitutional right would leave

this Court with two choices: either raise Miranda violations to

the level of actually, as opposed to presumptively, compelled

self-incrimination, and thus overruling much of its Miranda

jurisprudence, or lower Fifth Amendment standards by treating

all instances of compelled self-incrimination as this Court

currently treats Miranda violations, which would require

overturning many Fifth Amendment cases. Whether this Court

raises Miranda or lowers the Fifth Amendment standard, much

of its jurisprudence would have to be overturned.

This eliminates stare decisis as a justification for preserving

a constitutionalized Miranda rule. Stare decisis should not

prevent the reexamination of an inconsistent line of cases, such

as when later decisions erode the authority of earlier cases. See

Agostini v. Felton, 521 U. S. 203, 235-236 (1997). This is

particularly true in cases of constitutional criminal procedure,

where stare decisis interests are at their weakest. See Payne v.

Tennessee, 501 U.S. 808, 828 (1991).

If some case must fall, it should be Miranda. Miranda is

“poor constitutional law.” Miranda, supra, 384 U. S., at 504

(Harlan, J., dissenting). This decision was literally unprece-

dented. “The proposition that the privilege against self-

incrimination forbids in-custody interrogation without the

warnings specified in the majority opinion and without a clear

waiver of counsel has no significant support in the history of the

privilege or in the language of the Fifth Amendment.” /d., at

526 (White, J., dissenting). When this Court first applied the

Fifth Amendment to federal custodial interrogation, it relied on

a voluntariness test; no special warnings or other procedures

were involved. See Bram v. United States, 168 U. S. 532, 557-

558 (1897). Until Miranda, all state and federal confessions

27

were analyzed under the same voluntariness inquiry. Miranda

was an unanticipated shock to the criminal justice system that

would have been disastrous if applied retroactively. See

Johnson v. New Jersey, 384 U. S. 719, 731 (1966).

Miranda was unprecedented because its essence was based

on faulty logic. Miranda’s “right of silence,” Miranda, supra,

384 U. S. at 444, is incorrect Fifth Amendment law. “[{T]he

right, or better the privilege, is against being compelled to

speak” rather than staying silent. H. Friendly, Benchmarks 271

(1967) (emphasis added). This difference is more than “mere

semantics; it goes to the very core of the problem since the

privilege exists only when the statement is compelled, the

question of waiver is not reached until compulsion has been

shown.” /bid. The Miranda majority leapt over this gap in its

logic through its “conclusive presumption” that a person

undergoing custodial interrogation “ ‘cannot be otherwise than

under a compulsion to speak.’ ” See ibid. (quoting Miranda,

384 U. S., at 467); supra, at 5.

The conclusive presumption that compulsion follows from

custody is as wrong as it was unprecedented. Before Miranda,

custody had merely been one factor in determining whether the

confession was in fact compelled. See, e.g., Bram, supra, 168

U. S., at 558. As the Miranda majority admitted, the dissents

proved, and experience confirmed, unwarned custodial confes-

sions are quite capable of being voluntary. See supra, at 6-7.

Indeed, voluntariness is the norm for unwarned custodial

confessions. The best research available when Miranda was

decided showed that police interrogation procedures substan-

tially complied with Fifth Amendment and Due Process

requirements. See Caplan, Questioning Miranda, 38

Vand. L. Rev. 1417, 1443-1444 (1985). When Miranda was

decided, “the law enforcement establishment was engaged in a

critical self-examination of its procedures.” /bid. Miranda cut

dead this reform movement, replacing it with a detailed code of

procedure based upon an unwarranted presumption of compul-

sion. “The Court disserves its great role as vindicator of the

Bill of Rights when it constructs from plainly inadequate data

a generalization refuted by the common experience of man-

kind.” Friendly, supra, at 273.

28

Miranda’s greatest flaw is self-admitted; it excludes

voluntary confessions. See supra, at 6-7. Voluntary confes-

sions are essential to the vital task of detecting and prosecuting

crime. See supra, at 4. Every lost voluntary confession

threatens to free a guilty criminal or force victims to undergo

needless, traumatic litigation. Thus even though Ernesto

Miranda’s confession was obtained “without any force, threats

or promises” and was “unmarked by any of the traditional

indicia of coercion,” see Miranda, supra, 384 U. S., at 518-519

(Harlan, J., dissenting), the woman he brutalized was forced to

endure again the pain and indignity of testifying about the rape,

because his voluntary confession was not protected by the

Miranda talisman.

By unnecessarily limiting custodial interrogation and its

final product, voluntary confessions, Miranda does a grave and

continuing disservice to society. Society has no greater

function than to protect its people and their property from

crime. See //linois v. Gates, 462 U. S. 213, 237 (1983). In its

great rush to place suspects on a level playing field with the

police, the Miranda majority ignored the many nameless

victims of crimes not prosecuted and guilty criminals let free

because Miranda and its progeny prevent the police from

obtaining or the courts from utilizing voluntary confessions.

“In some unknown number of cases the Court’s rule

will return a killer, a rapist or other criminal to the streets

and to the environment which produced him, to repeat his

crime whenever it pleases him. As a consequence, there

will not be a gain, but a loss, in human dignity. The real

concern is not the unfortunate consequences of this new

decision on the criminal law as an abstract, disembodied

series of authoritative proscriptions, but the impact on those

who rely on the public authority for protection and who

without it can only engage in violent self-help with guns,

knives and the help of their neighbors similarly inclined.

There is, of course, a saving factor: the next victims are

uncertain, unnamed and unrepresented in this case.”

Miranda, supra, 384 U. S., at 542-543 (White, J., dissent-

ing).

29

The government’s claim that Miranda’s bright line should

be kept because it is easily followed by police and courts, see

Brief for United States 31-36, is a tattered fig leaf that fails to

cover Miranda’s glaring faults. As the government admits,

Miranda has its difficulties, particularly with regard to custody,

and invocation of counsel under Edwards v. Arizona, 451 U. S.

477 (1981). See Brief for United States 35. Furthermore,

Miranda’ alternative, the voluntariness standard, is sufficient.

Voluntariness was acceptable for the almost 70 years between

Bram and Miranda. The decision declining to apply Miranda

retroactively referred to the voluntariness standard as having

grown “increasingly meticulous through the years.” Johnson,

supra, 384 U. S., at 730. Furthermore, many confessions that

are excluded from the case-in-chief under Miranda currently

must still run the voluntariness gauntlet, if the confession is to

be used for impeachment or if the defendant seeks to exclude

derivative evidence. See, e.g., Mincey v. Arizona, 437 U.S.

385, 396-398 (1978); J. A. 212. Miranda’s minimal conve-

nience does fiot justify the harm it does to public safety or the

Constitution.

As Dean Caplan notes, the Miranda majority’s emphasis on

fairness for the accused at the expense of society’s legitimate

interest in prosecuting crime is an example of the sporting

theory of justice. See Caplan, supra, 38 Vand. L. Rev., at 1441-

1443. Miranda’s gamesmanship has no place in the Constitu-

tion. “A criminal prosecution is more than a game in which the

government may be checkmated and the game lost merely

because its officers have not played according to rule.”

McGuire v. United States, 273 U. S. 95, 99 (1927); accord

United States v. Ceccolini, 435 U. S. 268, 279 (1978). Con-

gress’s solution is an improvement over Miranda, even if it is

not the optimum solution.

The rules of Miranda and its progeny are not constitutional

commands. Arizona v. Roberson, 486 U. S. 675, 688 (1988)

(Kennedy, J., dissenting). If this Court should decide that the

choice is really between overruling Miranda and striking down

§ 3501, along with all the cases holding that Miranda is not

constitutionally required, then Miranda should go.

30

CONCLUSION

The decision of the Court of Appeals for the Fourth Circuit

should be affirmed.

March, 2000

Respectfully submitted,

EDWIN MEESE III

KENT S. SCHEIDEGGER

Attorney of Record

CHARLES L. HOBSON

Attorneys for Amicus Curiae