# Amicus Curiae Brief — Dickerson v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0386%3A31

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2000
- **Citation:** 530 U.S. 428

## Text

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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)

>

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0386%3A31. Public record. Not legal advice.