Amicus Curiae Brief — Chavez v. Martinez

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No. 01-1444 SEP 4 900

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OFFICE OF THE CLERK

IN THE rh, Sais Sean

Supreme Court of the United States

BEN CHAVEZ,

Petitioner,

vs.

OLIVERIO MARTINEZ,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

KENT S. SCHEIDEGGER

CHARLES L. HOBSON

Counsel of Record

Criminal Justice Legal Fdn.

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

-

y

QUESTIONS PRESENTED

1) Is a police officer liable for damages in a civil action

under 42 U. S. C. § 1983 for taking a statement from a suspect

in amanner considered “compelled” for the Fifth Amendment’s

solf-incrimination privilege?

2) Is a police officer liable in such an action for taking a

statement without complying with the prophylactic rule of

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

3) Is a police officer liable in such an action for taking a

statement in a manner that would render it inadmissible in a

criminal trial under the procedural due process line of cases?

~~

TABLE OF CONTENTS

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i certs eee eeecceeebeseeceoecesce iv

i ce cei cece cbneesocesescccess l

Summary of facts and Case... ccc cece eeeees 2

i cc ccccescesesdeoeccescesccece 4

DP Serb bbGheheeeccocccccccesccecccesesese 6

I

The Fifth Amendment's self-incrimination privilege is

only a right to have evidence excluded, and therefore

does not support a civil rights action ................ 6

IEE, oc cc ccccesnsecccocccecs 6

B. Policy and the privilege ................0005: 9

II

Miranda’ irrebuttable presumption does not support a

civil remedy for Fifth Amendment violations ........ 13

Il

An interrogation contrary to the procedural due process

voluntariness standard is not sufficient to support a

cee ceesaeccesececesececcccccs 19

A. Procedural due process and evidence ......... 20

B. Due process and policy .............665005: 23

i cece cde ceeccsecccecececcecce 27

cep e tue eeeceatcecccceccccccccccce 30

iv

TABLE OF AUTHORITIES

Cases

Arizona v. Fulminante, 499 U. S. 279,

113 L. Ed. 2d 302, 111 S. Ct. 1246(1991) .... 20,25, 26

Baxter v. Palmigiano, 425 U. S. 308,

47 L. Ed. 2d 810, 96 S. Ct. 1551 (1976) .......... 7, 26

Brown v. Mississippi, 297 U. S. 278, 82 L. Ed. 682,

Te oR ie cir nee 19

Brown v. Walker, 161 U. S. 591, 40 L. Ed. 2d 819,

ET RR ARETE. 7,8, 19

Buckley v. Fitzsimmons, 919 F. 2d 1230 (CA7 1990) ... 27

Chambers v. Florida, 309 U. S. 227, 84 L. Ed. 716,

es Ge, GED cc cecccceveeucecesncecoensss 21

Colorado v. Connelly, 479 U. S. 157,

93 L. Ed. 2d 473, 107 S. Ct. 515 (1986) ...... 20, 21, 22

Cooper v. Dupnik, 963 F. 2d 1220

Se SOc ce ccccccceveccqssceucccees 23

Cooper v. Dupnik, 924 F. 2d 1520 (CA9 1991) ........ 23

County of Sacramento v. Lewis, 523 U. S. 833,

140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998) ......... 29

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

6 L. Ed. 2d 1037, 81 S. Ct. 1860 (1961) ............ 23

Daniels v. Williams, 474 U. S. 327, 88 L. Ed. 2d 662,

SEBS. Gh GRR cc ccccccccececesscoduccocss 22

Dickerson v. United States, 530 U. S. 428,

147 L. Ed. 2d 405, 120 S. Ct. 2326 (2000) ....... 18, 20

Duckworth v. Eagan, 492 U.S. 195,

106 L. Ed. 2d 166, 109 S. Ct. 2875 (1989) .......... 16

Duncan v. Nelson, 466 F. 2d 939 (CA7 1972) .......... 9

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

ee CE ovevcducneseadeébensésicie 14

Graham v. Connor, 490 U. S. 386, 104 L. Ed. 2d 443,

Ps EE oheedeccescostecessvest 29, 30

Harlow v. Fitzgerald, 457 U. S. 800, 73 L. Ed. 2d 396,

ee pt deandececeducadednde 25

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

Se ee Cdctheccctdusenduntsessue 15, 16

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

rs SE Geekeds cuesdudecdseds 21, 23, 26

Hyde v. United States, 225 U. S. 347, 56 L. Ed. 1114, ©

Se ctéecbitensesdeuviesenesdous 17

Imbler v. Pachtman, 424 U. S. 409, 47 L. Ed. 2d 128,

Se i cidubac coi cehicatdcseddnasedd 9

Kastigar v. United States, 406 U. S. 441, 32 L. Ed. 2d 212,

Se TT civoesadssubséoudbenuness 7, 22

Lefkowitz v. Turley, 414 U. S. 70, 38 L. Ed. 2d 274,

SPEED huSGeLcekesesedesceereescens 7

Marbury v. Madison, | Cranch (5 U. S.) 137,

PD: cnbkebatdbesnueseedesésénsoeses 6

Martinez v. City of Oxnard, 270 F. 3d 852

0 ee 2, 3, 6, 9, 18

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

DOS Bs Se SPEED cecccccsccccessecsceces 15, 23

Medina v. California, 505 U. S. 437, 120 L. Ed. 2d 353,

SEG. GR. SEED ccc vccccccsccsoceccsevcess 21

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

es GR SNEED veccbccccedecdececccesvesess 23

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

BOs GR Bee ED cccecccccccsecoveseccces 15, 21

Miller v. Fenton, 474 U. S. 104, 88 L. Ed. 2d 405,

SE, GR. SEP GHD cccccccctccvcevevcees 20, 21, 25

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

Fs Go, SEED cccoccevenesccocacescane 20, 26

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

86 S. Ct. 1602 (1966) ............. 2, 12, 13, 14, 15, 23

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

Se. GE, SEP SEED cc ccccccccevccevccesccs 14, 15

Murphy v. Waterfront Comm’ n, 378 U. S. 52,

12 L. Ed. 2d 678, 84S. Ct. 1594(1964) .......... 10, 11

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

SOE. Co, FPO oc cc ccccccccsccecceccesces 14

Nixon v. Fitzgerald, 457 U. S. 731, 73 L. Ed. 2d 349,

BERS, Ge, BOSD cccrcesccccscccscosceceveses 6

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

BGS B. Ca. CREP GRRE cc ccccccccccccses 14, 15, 16, 17

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

GB, Ga, BARBS o vccccccccsccccvccccecceess 15

People v. Shaw, 180 Ill. App. 3d 1091,

SOG ME. B. BE SAD CITED cc ccccccccccccccccccccece 25

Pierson v. Ray, 386 U. S. 547, 18 L. Ed. 2d 288,

B7 BS. Ca. UZIS (ISS) . cccvcccccvcccesccccsccevees 9

vii

Pillsbury Co. v. Conboy, 459 U. S. 248, 74 L. Ed. 2d 430,

See Ge GED Cc cccccecesccscccceccseesces 8

Rochin v. California, 342 U. S. 165, 96 L. Ed. 183,

ee SO SEP EEEED oc ccccccccvcccesoccsccsccess 19

Schneckloth v. Bustamonte, 412 U. S. 218,

36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) ... 12,20, 23,24

Spano v. New York, 360 U. S. 315, 3 L. Ed. 2d 1265,

79 S. Ct. 1202 (1959) ...... a ee) 21

Stone v. Powell, 428 U. S. 465, 49 L. Ed. 2d 1067,

clude 25

United States v. Apfelbaum, 445 U. S. 115,

63 L. Ed. 2d 250, 100 S. Ct. 948 (1980) ............. g

United States v. Balsys, 524 U. S. 666,

141 L. Ed. 2d 575, 118 S. Ct. 2218 (1998) ..... 7,10, 11

United States v. Cobb, 905 F. 2d 784 (CA4 1990) ...... 29

United States v. Lanier, 520 U. S. 259,

137 L. Ed. 2d 432, 117 S. Ct. 1219(1997) .......... 28

United States v. Leon, 468 U. S. 897, 82 L. Ed. 2d 677,

104 S. Ct. 3405 (1984)... 0... cece ccc eee cece eeees s

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

108 L. Ed. 2d 222, 110 S. Ct. 1056 (1990) ........... 8

Walters v. National Assn. of Radiation Survivors,

473 U. S. 305, 87 L. Ed. 2d 220,

ED nec tnacukdneeadeeessess 21, 22

Williams v. United States, 341 U. S. 97,

95 L. Ed. 774, 71 S. Ct. 576 (1951) ............. 19, 28

Withrow v. Williams, 507 U. S. 680,

123 L. Ed. 2d 407, 113 S. Ct. 1745 (1993) .... 17,24,25

viii

Wyatt v. Cole, 504 U. S. 158, 118 L. Ed. 2d 504,

Se Gh CT ED cnc cececcusesesetesnnseses 25

United States Constitution

Ss i I RT ad 7,26

United States Statute

Pe Ee Ge EEE cecevecesccsoceenneesescesseoses 28

Be Eh Ge NED c6cccrececcececcodoescssaecooes 18

GE Ge ONE oceeccedsesesscescceses 3, 19, 27, 28

Treatises

2 W. LaFave, J. Israel, & N. King, Criminal Procedure

RB TOUT TTT TTT TTT TT TT TTT Te 25

Miscellaneous

Bator & Vorenberg, Arrest, Detention, Interrogation,

and the Right to Counsel: Basic Problems and Possible

Legislative Solutions, 66 Colum. L. Rev. 62 (1966) ... 24

Caplan, Questioning Miranda,

38 Vand. L. Rev. 1417 (1985) .... 2... 6.6 cc cece eee 15

Cassell & Hayman, Police Interrogation in the 1990s:

An Empirical Study of the Effects of Miranda,

43 UCLA L. Rev. 840 (1996)... .... 0... 5000 eee 12, 13

Cassell, Miranda’s Social Costs: An Empirical

Reassessment, 90 Nw. U. L. Rev. 387 (1996) ........ 13

Dershowitz & Ely, Harris v. New York: Some Anxious

Observations on the Candor and Logic of the Emerging

Nixon Majority, 80 Yale L. J. 1198 (1971) ........... 8

ix

H. Friendly, Benchmarks (1967) ..........0...-e000. 15

Friendly, The Fifth Amendment Tomorrow: The Case

for Constitutional Change, 37 U. Cin. L. Rev. 671

Ee ee PE ee 13

Gardner, Section 1983 Actions Under Miranda:

A Critical View of the Right to Avoid Interrogation,

30 Am. Crim. L. Rev. 1277 (1993) .......... 12, 15, 29

Gardner, The Emerging Good Faith Exception to the

Miranda Rule—A Critique, 35 Hastings L. J. 429

DE bucicudeeeedandecseondiscéaducecéeescaes 17

Klein, Miranda Deconstitutionalized: When the

Self-Incrimination Clause and the Civil Rights Act

Collide, 143 U. Penn. L. Rev. 417 (1994) ........ 21,29

Loewy, Police-Obtained Evidence and the Constitution:

DistingufShing Unconstitutionally Obtained Evidence

from Unconstitutionally Used Evidence,

87 Mich. L. Rev. 907 (1989) ........ccccceccevees 16

Schulhofer, Confessions and the Court,

79 Mich. L. Rev. $65 (1991) ......ccccccccccccces 24

Stone, The Miranda Doctrine in the Burger Court,

eT EEO co cccceses Senccesosccceces 24

IN THE

Supreme Court of the United States

BEN CHAVEZ,

Petitioner,

VS.

OLIVERIO MARTINEZ,

Respondent.

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

INTEREST OF AMICUS CURIAE

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 due process protection

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.

Interrogating suspects is an integral part of criminal

investigation. A proper interrogation regime is essential to a

system that seeks to punish the guilty, protect the innocent, and

preserve the rights of all. Creating an elaborate system of civil

—

.

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.

liability for interrogation that is contrary to the rules of Miran-

da v. Arizona, 384 U. S. 436 (1966) or the subjective, difficult -

to define due process voluntariness standard is regulatory

overkill. It would needlessly deter police from interrogating

suspects, resulting in lost voluntary confessions and the

unwarranted compensation of those who have suffered no real

harm. This is contrary to the interests of justice and society that

the CJLF was formed to advance.

SUMMARY OF FACTS AND CASE

On November 28, 1987, the plaintiff, Oliverio Martinez,

was stopped and frisked by police officers Maria Pefia and

Andrew Salinas as the officers were investigating drug activity

in Oxnard, California. See Martinez v. City of Oxnard, 270

F. 3d 852, 854 (CA9 2001). Officer Salinas found a knife in

Martinez’s waistband during the frisk, and a struggle ensued.

At one point during the struggle, Officer Salinas cried out

“ “He's got my gun.” ” /bid. Officer Pefia drew her weapon

and fired on Martinez several times, severely injuring him. See

ibid.

The patrol supervisor, Sergeant Ben Chavez, soon arrived

at the scene. He rode in the ambulance with Martinez in order

to get his version of what happened. See ibid. At the hospital,

Sergeant Chavez started a taped interview with Martinez as

emergency room personnel began treatment. See ibid. The

interview lasted over 45 minutes, but the transcript of the

recorded conversations totaled approximately 10 minutes. See

id., at 854-855. Medical staff asked Sergeant Chavez to leave

the trauma room several times, but he returned and continued

questioning. See id., at 854. Most of Martinez’s responses to

the questioning were complaints about his physical condition,

such as his pain or his inability to move his legs, or repeated

requests for treatment. See id., at 855. Martinez twice stated

that he did not want to talk anymore. See ibid. During the

interview, he “drifted'in and out of consciousness.” See ibid.

“Martinez’s statements were not used against him in a criminal

proceeding,” id., at 857, because he “was not charged with a

crime as a result of the incident.” See District Court Order

Granting in Part and Denying in Part Plaintiff's Motion for

Summary Adjudication, Part III (Aug. 1, 2000), App. to Pet. for

Cert. 16a.

Martinez filed suit under 42 U. S. C. § 1983, alleging that

the defendants violated his constitutional rights “by stopping

him without probable cause, using excessive force, and subject-

ing him to a coercive interrogation while he was receiving

medic. | care.” Martinez, 270 F. 3d, at 855. The District Court

denied Sergeant Chavez’s qualified immunity defense and

“granted summary judgment for Martinez on his claim that

Chavez violated his Fifth and Fourteenth Amendment rights by

coercing statements from him during medical treatment.” Ibid.

(footnote omitted). Chavez brought an interlocutory appeal,

claiming that he was entitled to qualified immunity. /bid. The

Ninth Circuit denied the appeal, holding that the questioning

violated Martinez’s Fifth Amendment rights, “[e]ven though

Martinez’s statements were not used against him in a criminal

proceeding ....” /d., at 857. The Ninth Circuit also held that

the interrogation violated the due process proscription against

coerced confessions, and that for this right the “ ‘violation is

complete with the coercive behavior itself... .’ ” Ibid.

(quoting Cooper v. Dupnik, 963 F. 2d 1220, 1244-1245 (CA9

1992) (en banc)). It concluded that “[i]n light of the extreme

circumstances of this case, a reasonable police officer in

Sergeant Chavez’s position could not have believed that the

interrogation of suspect Martinez comported with the Fifth and

Fourteenth Amendments,” and it affirmed the District Court

decision to deny qualified immunity. See id., at 859.

SUMMARY OF ARGUMENT

The Fifth Amendment self-incrimination privilege does not

support a civil rights action. By its own terms it is an

exclusionary rule that is only violated by the admission of

compelled incriminating testimony. Because the violation is

not complete until self-incriminating statements are improperly

admitted, the Fifth Amendment cannot be violated during

interrogation. As the immunity cases demonstrate, the Fifth

Amendment does not create a right to be free from questioning

under compulsion, but only a right to be free from compelled

self-incrimination. 7

The policy behind the privilege is stated in the Fifth

Amendment, keeping the government from forcing individuals

to furnish evidence that can prove their guilt. This is satisfied

by its exclusionary rule. Other policies, such as privacy,

evidentiary reliability, and the accusatorial nature of our system

do not justify expanding the privilege to include a civil remedy.

The exclusionary rule is not just a remedy here, it is an integral

part of the Fifth Amendment. Welding a civil cause of action

onto the privilege will needlessly deter proper police interroga-

tion of suspects.

The Miranda rule does not change the analysis. Miranda

created an irrebuttable presumption; confessions taken contrary

to its procedures are deemed compelled without regard to

whether they were in fact compelled. This rule did not create

any new remedies, but is a rule of evidence given constitutional

force through the Fifth Amendment. Like the Fifth Amend-

ment it serves, a Miranda violation is incomplete without the

improper admission of a confession taken contrary to its rules.

Therefore interrogation contrary to Miranda without improper

incrimination rules does not violate the Constitution and thus

cannot support civil liability. Any doubts that Miranda cannot

be violated during interrogation is dispelled by the numerous

exceptions to the rule. Because the Miranda rule excludes both

compelled and voluntary confessions, adding a civil remedy

will needlessly compound the already high cost of Miranda in

lost voluntary confessions.

The fact that this Court recently clarified that Miranda is a

constitutional rule changes nothing. Dickerson v. United States

kept the status quo by leaving Miranda and its exceptions

intact. Because the exclusionary rule is inseparable from

Miranda, Miranda cannot support a civil rights action.

While due process can support a civil rights action for

improper interrogation, the due process voluntariness standard

is not a source of civil liability. The cases prohibiting involun-

tary or coerced confessions deal with the exclusion of evidence

and fundamental fairness, concepts associated with procedural

due process. The process due is no more than a trial free from

an involuntary confession. Like the Fifth Amendment, this

procedural due process right is only violated by the admission

of an involuntary confession. Therefore, it does not support a

civil rights action.

There are also strong practical reasons for avoiding civil

liability. The voluntariness standard has proven notoriously

difficult to implement. Overbearing the will is not easily

defined, and the test is necessarily subjective. As the induce-

ment cases demonstrate, a confession can be deemed involun-

tary with little real coercive interrogation. Civil liability should

not be based on such a weak standard.

Substantive due process provides the standard for assessing

civil liability for interrogation. Unlike procedural due process,

the substantive due process violation is complete with the

improper interrogation. Under this standard, civil liability

should be limited to interrogation involving force, the depriva-

tion of food, water, or sleep, or threats of force or deprivation.

Such techniques are never proper, and can be said to “shock the

conscience” of the court. They are also objective and easily

defined. This distinction between violent interrogation and

merely involuntary confessions has received some implicit

recognition from this Court. It is now time for explicit approval

by dismissing civil liability for the comparatively benign

interrogation in this case.

ARGUMENT

This case is about the relationship between rights and

remedies. While it is an old maxim that rights must have

remedies, see, e.g., Marbury v. Madison, | Cranch (5 U. S.)

137, 163 (1803), this does not “establish that the individual’s

protection must come in the form of a particular remedy.”

Nixon v. Fitzgerald, 457 U. S. 731, 755, n. 37 (1982). In the

Fifth Amendment's self-incrimination privilege, the remedy,

excluding incriminating statements, is part of the right.

Because a Fifth Amendment violation is not completed until

incriminating statements are improperly admitted, exclusion is

the sole remedy. The procedural due process right against the

use of involuntary confession operates in the same way. Civil

remedies for interrogation are limited to violations of substan-

tive due process. This involves extreme behavior like torture,

threats of violence, or the deprivation of food, water, or sleep.

Because substantive due process was not violated in this case,

there is no civil remedy for the interrogation.

I. The Fifth Amendment’s self-incrimination privilege

is only a right to have evidence excluded, and therefore

does not support a civil rights action.

A. An Exclusionary Rule.

The Ninth Circuit’s Fifth Amendment holding centers on

the theory that a Fifth Amendment violation occurs at the

me nent of “compulsion” at the police station. See Martinez v.

City of Oxnard, 270 F. 3d 852, 856-857 (CA9 2001). This

premise is fundamentally erroneous.

The Fifth Amendment’s self-incrimination privilege is not

a right to be free from compulsion, but rather from compelled

self-incrimination. The Fifth Amendment privilege is essen-

tially an exclusionary rule. Although the legislative history of

the Fifth Amendment adds little to our understanding of the

privilege, see United States v. Balsys, 524 U. S. 666, 674, n. 5

(1998), the text demonstrates that the self-incrimination

privilege centers on the use of evidence in the criminal trial.

“No person . . . . shall be compelled in any criminal case to be

a witness against himself... .” U.S. Const., Amdt. 5. The

privilege applies to attempts to compel in proceedings other

than the criminal trial, see Lefkowitz v. Turley, 414 U.S. 70, 77

(1973), but the scope of the privilege is still limited to actual

incrimination. See id., at 77.

Therefore, while compulsion is a necessary condition for a

Fifth Amendment violation, it is not a sufficient condition for

the self-incrimination privilege. If the threat of incrimination

is eliminated, then the government can compel a witness to

testify. See Kastigar v. United States, 406 U. S. 441, 448-449

(1972). Similarly, a prison disciplinary board may draw

negative inferences from the prisoner’s silence at the disciplin-

ary hearing when that silence is not used in any criminal

proceeding. See Baxter v. Palmigiano, 425 U.S. 308, 317-318

(1976). Where there is no threat of incrimination, the privilege

is unnecessary.

The act of being interrogated can have adverse conse-

quences other than self-incrimination, but this is irrelevant to

the Fifth Amendment analysis. In Brown v. Walker, 161 U. S.

591 (1896), a grand jury witness invoked the privilege with

regard to questions concerning crimes for which he could not

be held liable. See id., at 609. Justice Field’s dissent con-

tended, “The [Fifth] amendment also protects him from all

compulsory testimony which would expose him to infamy and

disgrace, though the facts disclosed may not lead to a criminal

prosecution.” /d., at 631. This majority rejected that argument.

“The design of the constitutional privilege is not to aid the

witness in vindicating his character, but to protect him

against being compelled to furnish evidence to convict him

of a criminal charge. If he secure himself legal immunity

from prosecution, the possible impairment of his good name

is a penalty which it is reasonable he should be compelled

to pay for the common good.” /d., at 605-606.

This is “black letter law... .” Pillsbury Co. v. Conboy, 459

U. S. 248, 273 (1983) (Blackmun, J., concurring in the judg-

ment).

“[T]he privilege itself is defined in terms of the incriminat-

ing effect of truthful testimony .. . .” United States v. Apfel-

baum, 445 U.S. 115, 134 (1980) (Blackmun, J., concurring in

the judgment) (emphasis in original). It is only violated when

evidence is improperly admitted at trial. “The privilege against

self-incrimination guaranteed by the Fifth Amendment is a

fundamental /rial right of criminal defendants. [Citation.]

Although conduct by law enforcement officials prior to trial

may ultimately impair that right, a constitutional violation

occurs only at trial.” United States v. Verdugo-Urquidez, 494

U. S. 259, 264 (1990) (emphasis added). Although dicta, the

Verdugo-Urquidez statement is the correct rule of law.

The Fifth Amendment privilege “is an exclusionary

rule—and a constitutionally created one.” Dershowitz & Ely,

Harris v. New York: Some Anxious Observations on the

Candor and Logic of the Emerging Nixon Majority, 80 Yale

L. J. 1198, 1214 (1971) (emphasis in original). Because the

privilege is not violated until the improper admission of self-

incriminating testimony, exclusion is the only proper means to

enforce the Fifth Amendment. If there is no evidence to

exclude or no criminal trial to exclude it from, then there is no

violation of the privilege. In that event, there is nothing to

“remedy.” This differs from the Fourth Amendment’s

exclusionary rule. Fourth Amendment violations are complete

before trial, at the time of the illegal search. See Verdugo-

Urquidez, 494 U. S., at 264. The Fourth Amendment

exclusionary rule is a judicially constructed remedy intended to

deter police from violating that right. See United States v.

Leon, 468 U. S. 897, 906 (1984). Exclusion of evidence is not

a remedy for past violations of the Fifth Amendment privilege;

it is the right itself.

In addition to comporting with constitutional text and this

Court’s precedents, denying civil liability for Fifth Amendment

violations is the fairer approach. While police officers may

produce an inadmissable statement through improper interroga-

tion, the confession cannot be unconstitutionally admitted

without the acquiescence of the trial judge and the prosecutor.

These actors, with far more expertise in Fifth Amendment

admissibility issues, are absolutely immune from civil liability

for the improper admission of evidence at trial. See /mbler v.

Pachtman, 424 U. S. 409, 427-428 (1976) (prosecutors);

Pierson v. Ray, 386 U. S. 547, 554-555 (1967) (judges). Police

officers would be left holding the bag although the more

responsible actors are immune. Cf. Duncan v. Nelson, 466

F. 2d 939, 942 (CA7 1972) (police officers who coerced the

confession were not the proximate cause of its admission

because they could not foresee that the judge would admit it).

B. Policy and the Privilege.

The Ninth Circuit’s decision that the Fifth Amendment self-

incrimination privilege can be violated even though the suspect

was never incriminated relies on Fifth Amendment policy. See

Martinez v. City of Oxnard, 270 F. 3d 852, 857 (CA9 2001). It

followed Ninth Circuit precedent holding that one purpose of

the Fifth Amendment “is to prevent coercive interrogation

practices that are ‘destructive of human dignity.’ ” Jbid.

(quoting Cooper v. Dupnik, 963 F. 2d 1220, 1239 (CA9 1992)

(en banc) (quoting Miranda v. Arizona, 384 U. S. 436, 457

(1966)). This is an unwarranted extension of Miranda. Like

the Fifth Amendment it serves, Miranda is a trial right. It does

not support a civil remedy because it is inseparable from the

exclusion of evidence. See part II, infra. The Ninth Circuit's

holding is also an improper application of extraneous policy to

the self-incrimination privilege. The only policy behind the

privilege is found in its text, preventing self-incrimination at

10

trial. While a source of other Fifth Amendment policies exists,

it has been diminished, and does not justify expanding the Fifth

Amendment.

An often quoted statement of policy justifications for the

Fifth Amendment privilege is found in a famous passage from

Murphy v. Waterfront Comm'n, 378 U. S. 52 (1964). That

passage lists numerous policy justifications for the privilege,

including rationales as diverse as a “sense of a fair play” and

“respect for the inviolability of the human personality ... .”

See id., at 55. This collection of policies does not justify

expanding the Fifth Amendment beyond its exclusionary rule.

Murphy is a diminished precedent. Its examination of the

historical treatment of the relationship between the threat of

foreign prosecution and the self-incrimination privilege has

been overruled. See Balsys v. United States, 524 U. S. 666,

687-688 (1999). Balsys also critically reexamined the Murphy

policies. In Balsys, the Justice Department’s Office of Special

Investigations (OSI), “which was created to institute

denaturalization and deportation proceedings against suspected

Nazi war criminals,” was investigating Balsys. See id., at 670.

The OSI asked Balsys about his wartime activities between

1940 and 1944, but he invoked the self-incrimination privilege,

claiming a fear of prosecution in a foreign nation. /d., at 669.

This Court rejected that claim.

In addition to rejecting Murphy’s use of history to support

Balsys’ position, the Balsys Court also declined to rely on

Murphy ’s list of Fifth Amendment principles in order to expand

the privilege. This Court established that “at its [the Fifth

Amendment's] heart lies the principle that the courts of a

government from which a witness may reasonably fear prosecu-

tion may not in fairness compel the witness to furnish testimo-

nial evidence that may be used to prove his guilt.” /d., at 683.

The policies and aspirations listed in Murphy did not justify

expanding the privilege beyond that principle:

“we think there would be sound reasons to stop short of

resting an expansion of the Clause’s scope on the highly

general statements of policy expressed in . . . . Murphy.

While its list does indeed catalog aspirations furthered by

the Clause, its discussion does not even purport to weigh .

the host of competing policy concerns that would be raised

in a legitimate reconsideration of the Clause’s scope.” /d.,

at 691.

Of particular importance is how this Court dealt with one of

the broadest of the Murphy policies, “the inviolability of the

human personality and of the right of each individual ‘to a

private enclave where he may lead a private life’... .” 378

U.S., at 55. If allowed to define the scope of the Fifth Amend-

ment privilege, this principle “would necessarily seem to

include protection against the Government’s very intrusion

through involuntary interrogation. ” Balsys, 524 U. S., at 691.

Since “ ‘inviolability’ is after all, an uncompromising term,”

then as with the Fourth Amendment, breaches would occur “at

the moment of illicit intrusion, whatever use may or may not be

made of their fruits.” /d., at 692. This Court refused to stretch

the self-incrimination privilege beyond its traditional boundary.

“The Fifth Amendment tradition, however, offers no such

degree of protection.” /bid. The immunity cases demonstrated

that the privilege allows testimony to be compelled so long as

the compulsion is accompanied by an appropriate protection

from incrimination. See ibid. Personal inviolability is simply

inconsistent with Fifth Amendment practice and precedent.

“Thus, what we find in practice is not the protection of personal

testimonial inviolability, but a conditional protection of

testimonial privacy subject to basic limits recognized before the

framing and refined through immunity doctrine in the interven-

ing years.” /d., at 692-693 (footnote omitted). This conditional

testimonial privacy is enforced through the exclusion of

evidence, and not through civil liability. The Ninth Circuit’s

notion that the privilege can be violated without actual! incrimi-

nation cannot be reconciled with Balsys.

12

Since many of the Murphy values are either too vague to be

meaningful or restatements of the privilege, see Gardner,

Section 1983 Actions Under Miranda: A Critical View of the

Right to Avoid Interrogation, 30 Am. Crim. L. Rev. 1277, 1312

(1993), analyzing each of them is unnecessary. In addition to

human dignity, two other values have been suggested as being

central to the self-incrimination privilege—preserving eviden-

tiary reliability and protecting the accusatorial nature of the

system. See ibid. Neither supports expanding the Fifth

Amendment beyond its exclusionary rule.

Evidentiary reliability is protected by the Fifth Amend-

ment’s exclusionary rule. The threat of civil liability adds

nothing, particularly since the prosecutors that submit and the

judges who admit the incriminating statements are immune

from liability. See supra, at 9. Also, many police-initiated

Fifth Amendment violations will not be unreliable. Police

interrogation is subject to the Fifth Amendment through

Miranda v. Arizona, 384 U. S. 436 (1966). Miranda’s pre-

sumption excludes both reliable and unreliable confessions, see

infra, at 14, thus reducing the marginal benefit to reliability.

Imposing civil liability for noncompliance with the Miranda

procedures regardless of whether the confession obtained is

reliable will add little or nothing to the reliability of evidence.

The accusatorial nature of our system does not change the

fact that police interrogation is indispensable to it. See

Schneckloth v. Bustamonte, 412 U. S. 218, 225 (1973). Even

more importantly, creating a civil remedy will not give any

added protection to the accusatory system. The Fifth Amend-

ment’s exclusionary rule prevents the prosecution from taking

any unfair advantage of a Fifth Amendment violation. Welding

a civil remedy onto the Fifth Amendment serves no purpose

other than to discourage interrogation.

It is important to place the cost of this over-deterrence in its

proper context. A major consequence of the Miranda decision

is a significant decrease in the frequency of confessions

obtained by police. See, e.g., Cassell & Hayman, Police

13

Interrogation in the 1990s: An Empirical Study of the Effects

of Miranda, 43 UCLA L. Rev. 840, 917 (1996); Cassell,

Miranda’s Social Costs: An Empirical Reassessment, 90

Nw. U. L. Rev. 387, 416-418 (1996). Potential voluntary

confessions were lost because police either scrupulously

followed Miranda or even went beyond the Miranda require-

ments. See Cassell & Hayman, supra, at 920. Civil liability for

Fifth Amendment violations compounds this cost by adding

more over-deterrence to the system. Miranda already makes

police stop short of the actual constitutional limit of permissible

interrogation. Adding civil liability will move them even

further away, allowing the guilty to go free, and innocent

suspects to remain under suspicion. See Friendly, The Fifth

Amendment Tomorrow: The Case for Constitutional Change,

37 U. Cin. L. Rev. 671, 680-681 (1968) (“A man in suspicious

circumstance but not in fact guilty is deprived of official

interrogation of another whom he knows to be the true culprit

ey |

Balsys provides the best approach to defining the Fifth

Amendment’s scope. The privilege should remain grounded in

its primary purpose, preventing the government from using

compelled testimony to prove the suspect’s guilt. A civil

remedy adds nothing to this goal while harming society by

unnecessarily deterring police interrogation of suspected

criminals. As in Balsys, precedent, constitutional text, and

practicality all argue against expanding the Fifth Amendment.

II. Miranda’s irrebuttable presumption does not support

a civil remedy for Fifth Amendment violations.

Because the police are the only individuals likely to be held

civilly liable for Fifth Amendment violations, see supra, at 9,

Miranda v. Arizona, 384 U. S. 436 (1966) would be the source

of any civil rights case for alleged Fifth Amendment violations.

While that landmark decision dramatically expanded the Fifth

Amendment’s reach, it did not add any new remedies. Miranda

14

is arule of evidence given constitutional force through the Fifth

Amendment’s self-incrimination privilege. The product of an

interrogation that does not comport with Miranda and its

permutations, see, e.g., Edwards v. Arizona, 451 U. S. 477

(1981), is presumed to be involuntary without regard to whether

it was in fact involuntary. Oregon v. Elstad, 470 U. S. 298,

304, 307, n. 1 (1985). This rule of evidence should only be

implemented by an exclusionary rule, and, like its Fifth

Amendment source, it is only violated at trial by the improper

admission of incriminating statements.

Although the 50-plus page opinion sprawls 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, 384 U. S., at 444 (emphasis added).

Miranda is nota rule separating voluntary from involuntary

confessions. Instead, it creates a conclusive presumption that

confessions not taken in accordance with its dictates are

deemed involuntary without regard to whether they are in fact

involuntary. “A Miranda violation does not constitute coercion

but rather affords a bright-line, legal presumption of coercion,

requiring suppression of all unwarned statements.” E/stad, 470

U. S., at 304, 307, n. 1 (emphasis in original). Miranda’s

presumption reflects this Court’s choice of the appropriate

balance between the suspect’s protection from interrogation and

society’s need to solve crimes. See, e.g., Moran v. Burbine,

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” (emphasis

in original)); New York v. Quarles, 467 U. S. 649, 658 (1984).

While the opinion declared that voluntary confessions were a

“proper element in law enforcement,” Miranda, 384 U. S., at

478, the Miranda Court chose to tilt the balance sharply in

— aggre anew ee ores

15

favor of the criminal defendant. See Caplan, Questioning

Miranda, 38 Vand. L. Rev. 1417, 1469-1472 (1985). This

balance executes this Court’s policy concerning police interro-

gation under the Fifth Amendment.

Miranda and its subsequent decisions have noted the

“inherently compelling pressures” of the interrogation room.

See Miranda, 384 U. S., at 467; McNeil v. Wisconsin, 501 U. S.

171, 176 (1991); Moran, 475 U. S., at 420. But this does not

change the fact that the Miranda rule is only a presumption.

While there may be some inherent pressure 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., dissenting).

There are many instances in which a suspect can give an

unwarned, but still voluntary custodial confession. In his

Miranda dissent, Justice White constructed a hypothetical

where an unwarned suspect in police custody may blurt out a

confession after being asked a single question such as “ ‘Do

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

This confession, while voluntary in fact, is suppressed under

Miranda. See id., at 533-534 (White, J., dissenting). As Judge

Henry Friendly noted, “the books are full of instances, of which

the Court must have been well aware through petitions for

certiorari, where it is evident that in-custody interrogation did

not represent the exercise of compulsion.” H. Friendly,

Benchmarks 272-273 (1967); see also id., at 273, and nn. 33-36

(listing examples). In many cases after Miranda, confessions

have been found or conceded to be voluntary even though they

were taken contrary to the Miranda procedures. See, e.g.,

Elstad, 470 U. S., at 318; Oregon v. Hass, 420 U. S. 714, 723

(1975); Michigan v. Tucker, 417 U.S. 433, 449 (1974); Harris

v. New York, 401 U. S. 222, 224 (1971).

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

16

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. See Duckworth v. Eagan, 492 U. S.

195, 209 (1989) (O’Connor, J., concurring).

Like its Fifth Amendment source, Miranda advances its

policies through the exclusionary rule. See Elstad, 470 U. S.,

at 306. Miranda is only violated when incriminating statements

are improperly admitted at trial. Thus, “courts should not care

whether or not Miranda is violated so long as no evidence

obtained from the violation is introduced against the person

from whom it was obtained. Similarly, no police officer should

be subject to a law suit for obtaining a confession in violation

of Miranda.” Loewy, Police-Obtained Evidence and the

Constitution: Distinguishing Unconstitutionally Obtained

Evidence from Unconstitutionally Used Evidence, 87

Mich. L. Rev. 907, 917 (1989).

The case for limiting Miranda violations to improperly

admitted testimony is even stronger than it is for Fifth Amend-

ment violations in general. While a confession contrary to the

Fifth Amendment must involve some sort of improper compul-

sion, Miranda can and does exclude voluntary confessions.

Assessing civil damages through Miranda’s burdensome

presumption is thus both unnecessary and unfair because the

rule sweeps more broadly than the Fifth Amendment.

Any doubt that Miranda is exclusively a trial right is

dispelled by its exceptions. While confessions obtained

contrary to the Miranda rules are excluded from the govern-

ment’s case-in-chief, such statements are admissible for

impeachment purposes. See Harris, 401 U. S., at 226. Exclu-

sion from the main case provided enough of a deterrent to

police. See id., at 225. If a Miranda “violation” occurred at the

time of the interrogation, then the fruits of the violation should

be inadmissible under any circumstances. How can an officer

who does not follow Miranda be found to violate the Constitu-

17

tion and be held liable for damages if it is constitutionally

permissible to admit the product of that same interrogation for

impeachment? In this hypothetical case, while the defendant

has been incriminated, albeit indirectly by impeaching evi-

dence, the interrogating officer who obtained this evidence

could be found personally liable to the defendant, even though

an appellate court would not overturn the defendant’s convic-

tion.

This demonstrates that Miranda did not establish a right to

avoid interrogation. A suspect who gives an unwarned but

voluntary statement “has suffered no identifiable constitutional

harm.” Elstad, 470 U. S., at 307. The Fifth Amendment is not

violated until the statement taken contrary to Miranda is

improperly admitted into evidence. While it is common to refer

to a suspect's “Miranda rights” and to the conduct of police as

a “Miranda violation,” these are misnomers. “It is one of the

misfortunes of the law that ideas become encysted in phrases

and thereafter for a long time cease to provoke further analy-

sis.” Hyde v. United States, 225 U. S. 347, 391 (1912)

(Holmes, J., dissenting). While they are usually harmless, such

terms should not deflect the focus from Miranda as a trial right.

As “Miranda safeguards ‘a fundamental trial right,’ ” the Fifth

Amendment self-incrimination privilege, Withrow v. Williams.

507 U. S. 680, 691 (1993) (quoting Verdugo-Urquidez, 494

U. S. 259, 264 (1990)) (emphasis added in Withrow), “a simple

failure to administer Miranda warnings is not itself a violation

of the Fifth Amendment.” Elstad, supra, at 306, n. 1. This

exclusionary rule no more supports civil liability than the Fifth

Amendment it serves.

Just like the Fifth Amendment it serves, the Miranda

presumption does not create a right to be free from questioning,

“The evil the Miranda Court meant to eliminate arises not from

the privacy intrusion—the questioning of the suspect—but from

the use of compelled statements against him. Such use is the

gravamen of a violation of the fifth amendment privilege

against self-incrimination.” Gardner, The Emerging Good

18

Faith Exception to the Miranda Rule—A Critique, 35 Hastings

L. J. 429, 451-452 (1984). The Ninth Circuit’s arguments to

the contrary, see Martinez v. City of Oxnard, 270 F. 3d 852,

857 (CA9 2001), are simply incorrect.

The fact that this Court recently affirmed Miranda’s

constitutional status in Dickerson v. United States, 530 U. S.

428 (2000), does not change the analysis. Dickerson struck

down 18 U. S. C. §3501, Congress’ attempt to supplant

Miranda with a totality of the circumstances test for voluntari-

ness. The Dickerson Court noted that language in some cases

implied that the Miranda rule was not a constitutional right.

See Dickerson, supra, at 437-438. The doubts about Miranda’s

constitutionality were resolved by the fact that this Court

consistently applied the Miranda rule to the states. If Miranda

was not a constitutional decision, then it could not be applied to

state court convictions. See id. at 438. Further proof of

Miranda’s status was found in language from Miranda itself.

See id., at 440.

Dickerson illuminated the landscape rather than changed it.

The presence of exceptions to Miranda did not negate its

constitutional status, and therefore survived the Dickerson

decision. “These decisions illustrate the principle—not that

Miranda is not a constitutional rule—but that no constitutional

rule is immutable.” J/d., at 441. Because Miranda was so

embedded in police practice and our culture, “the principles of

stare decisis weigh heavily against overruling it now.” /d., at

443. The fact that the Miranda presumption overprotects the

Fifth Amendment was also left untouched. “The disadvantage

of the Miranda rule is that statements which may be by no

means involuntary, made by a defendant who is aware of his

‘rights,’ may nonetheless be excluded and a guilty defendant go

free as a result.” /d., at 444. Dickerson simply reaffirmed the

status quo.

While Miranda extended the reach of the Fifth Amendment

privilege into the interrogation room, it did not expand the

scope of the right. The privilege against self-incrimination is

19

still a trial right and therefore is only enforced through its

exclusionary rule. Certain extreme forms of interrogation can

support an action under 42 U. S. C. § 1983, see infra, at 27-30,

but they are not covered by the Fifth Amendment or the

Miranda presumption or raised by the facts of this case.

III. An interrogation contrary to the procedural

due process voluntariness standard is not sufficient

to support a civil rights action.

Interrogations can produce constitutional torts that support

an action under 42 U.S. C. § 1983. A brutal interrogation such

as the one in the notorious case of Brown v. Mississippi, 297

U. S. 278, 281-282 (1936) would now produce both civil

liability under § 1983 and criminal prosecution. See Williams

v. United States, 341 U. S. 97, 101-102 (1951) (criminal

prosecution). But the Brown decision itself only involved the

exclusion of evidence, not civil liability. In Brown, this Court

held that due process required the exclusion of a confession

obtained through such methods. See 297 U. S., at 286. Brown

and successive Supreme Court opinions have established that

admitting an involuntary confession in a criminal trial violates

due process. Like the self-incrimination privilege, this line of

cases regulates the admissibility of evidence, and it is thus an

aspect of procedural due process. While some interrogation

methods that produce involuntary confessions will support a

civil rights action, many will not. Procedural due process

excludes the fruits of interrogations that involve far less

coercion than in Brown. See injra, at 25-26.

The standard of the procedural due process line of cases was

created for a different purpose and is not suited as the standard

for civil liability. The proper scope of civil or criminal liability

for interrogations is the standard of substantive due process.

See Rochin v. California, 342 U.S. 165, 172 (1952). Sergeant

Chavez did not cross the line of a properly defined substantive

due process standard, and he is entitled to qualified immunity.

20

A. Procedural Due Process and Evidence.

Analysis of the due process confession cases begins with an

understanding of how this Court uses the term “coercion.”

Some form of official coercion is a prerequisite to invalidating

a confession under due process. See Colorado v. Connelly, 479

U. S. 157, 164 (1986). However, the scope of what is consid-

ered “coercion” is now far greater than just force or the threat

of force. The prohibition against “coerced” confessions now

also regulates “more subtle forms of psychological persuasion

..” Ibid. The term “coercion,” while constitutionally

significant, is best seen as a label for “the crucial element of

police overreaching.” See id., at 163. While the coercive

conduct must be “substantial,” see id., at 164, it need not

involve “gross abuses... .” Mincey v. Arizona, 437 U. S. 385,

401 (1978).

Coercion cannot be separated from the concept of voluntari-

ness. While coercion is integral to any due process violation,

the test for determining a confession’s constitutionality under

due process is a “voluntariness test.” See Dickerson v. United

States, 530 U. S. 428, 434 (2000). The two concepts are so

closely related that “prior cases have used the terms ‘coerced

confession’ and ‘involuntary confession’ interchangeably ‘by

way of convenient shorthand.’ ” Arizona v. Fulminante, 499

U.S. 279, 287, n. 3 (1991) (quoting Blackburn v. Alabama, 361

U. S. 199, 207 (1960)). The voluntariness test “examines

‘whether a defendant’s will was overborne’ by the circum-

stances surrounding the giving of a confession.” Dickerson,

supra, at 434 (quoting Schneckloth v. Bustamonte, 412 U. S.

218, 226 (1973)). The relevant inquiry includes “the totality of

all surrounding circumstances—both the characteristics of the

accused and the details of the interrogation.” Schneckloth, at

226. Therefore, when a court labels a confession as “involun-

tary” or “coerced” it is important to understand that this term is

a label that describes a complex inquiry. See Miller v. Fenton,

474 U. S. 104, 116 (1985). Practices that are not particularly

21

“coercive” as that term is commonly understood, like induce-

ments, can still render a confession involuntary by overcoming

the suspect’s will. See supra, at 25-26.

It is similarly important to understand how the due process

clause regulates confessions. Like the self-incrimination

privilege, the Brown line regulates confessions through the

exclusion of involuntary confessions. Thus the due process

question frequently is framed in the context of excluding

evidence. See, e.g., Haynes v. Washington, 373 U.S. 503, 504

(1963) (deciding “whether the admission of the petitioner’s . . .

confession into evidence against him at trial constituted a

denial of due process of law” (emphasis added)); Spano v. New

York, 360 U. S. 315, 315 (1959) (raising the issue of whether

the defendant’s “confession was properly admitted under the

Fourteenth Amendment”). “ ‘The aim of the requirement of

due process is not to exclude presumptively false evidence, but

to prevent fundamental unfairness in the use of evidence,

whether true or false.’ ” Connelly, 479 U. S., at 167 (quoting

Lisenba v. California, 314 U. 8. 219, 236 (1941)).

The prohibition against the use of involuntary or coerced

confessions that has evolved since Brown is a form of proce-

dural due process. See Klein, Miranda Deconstitutionalized:

When the Self-Incrimination Clause and the Civil Rights Act

Collide, 143 U. Penn. L. Rev. 417, 465 (1994) (“Most, if not

all, coerced confession cases are procedural due process

cases”). An early due process confession case characterized the

prohibition against the admission of involuntary confessions as

a matter of procedural due process. See Chambers v. Florida,

309 U. S. 227, 237 (1940). Prohibiting the taking and subse-

quent use of involuntary confessions is a matter of fundamental

fairness, see, e.g., Connelly, 479 U. S., at 167; Miller, 474

U. S., at 110; Michigan v. Tucker, 417 U. S. 433, 441 (1974),

which is a component of a procedural due process inquiry. See,

e.g., Medina v. California, 505 U.S. 437, 448 (1992); Walters

v. National Assn. of Radiation Survivors, 473 U.S. 305, 320

(1985).

22

The importance of fair procedures separates procedural

from substantive due process. Substantive due process raises

a standard “barring certain government actions regardless of the

procedures used to implement them.” Daniels v. Williams, 474

U. S. 327, 331 (1986); see also Brief for the Criminal Justice

Legal Foundation as Amicus Curiae in Connecticut Dept. of

Public Safety v. Doe, No. 01-1231, at 4-7. Since the voluntari-

ness standard guarantees a fair procedure—a trial free from

involuntary confessions—this guarantee should not be charac-

terized as part of a substantive due process inquiry that looks

beyond whether the action was implemented in a fair manner.

Given its basis in the exclusion of evidence and fundamental

fairness, the voluntary confession requirement is part of

procedural due process.

Procedural due process only requires the state provide the

procedure that is due, not any particular result. See Walters,

473 U. S., at 321. In criminal cases, this is a fair trial, see

Daniels, 474 U. S., at 337 (Stevens, J., concurring), a trial with

all the procedures required under due process. In the context of

the voluntary confession requirement, that is a trial where an

involuntary confession is not admitted against the defendant.

Therefore, due process is not violated unless an involuntary

confession is used to incriminate the defendant at trial.

Coercion alone will not support a procedural due process

violation. As the immunity cases demonstrate, coercive

interrogation is constitutional when the threat of self-incrimina-

tion is removed. See K4stigar v. United States, 406 U. S. 441,

448-449 (1972) (the government can compel testimony if the

speaker is granted immunity). The threat of imprisonment for

failing to answer the government’s questions is much more

coercive than the “more subtle” forms of persuasion proscribed

by the Due Process Clause. Cf. Connelly, 479 U. S., at 164.?

2. Although the coerced confession test comes from due process rather

than the Fifth Amendment, there should be little difference between the

level of compulsion that violates procedural due process and that which

23

Without incrimination, there is no procedural due process

violation.

B. Due Process and Policy.

Allowing civil damages for violations of the procedural due

process voluntariness standard also threatens public safety.

Police interrogation is a public good, not a necessary evil. The

Miranda decision recognized that confessions are a “proper

element in law enforcement.” Miranda v. Arizona, 384 U. S.

436, 478 (1966). “Without such investigation, those who were

innocent might be falsely accused, those who were guilty might

wholly escape prosecution, and many crimes would go

unsolved.” Schneckloth, 412 U. S., at 225. “ ‘Questioning

suspects is indispensable in law enforcement.’ ” Culombe v.

Connecticut, 367 U.S. 568, 578 (1961) (opinion of Frankfurter,

J.).

It is true that the benefit to society is limited to voluntary

confessions. Cf. McNeil v. Wisconsin, 501 U. S. 171, 181

(1991) (“Since the ready ability to obtain uncoerced confessions

is not an evil but an unmitigated good . . .”). If the line between

voluntary and involuntary confessions were clear, then there

would be no additional cost to society for adding civil liability

to the remedies for failing to adhere to the voluntariness

standard. Unfortunately, the voluntariness test is far from clear.

“The line between proper and permissible police conduct

and techniques and methods offensive to due process is, at best,

a difficult one to draw... .” Haynes, 373 U. S., at 515.

Dissatisfaction with applying the voluntariness test was a

motivation behind Miranda’s comparatively bright-line rule.

See Michigan v. Mosley, 423 U.S. 96, 113 (1975) (Brennan, J.,

violates the Fifth Amendment. Brown was decided before the

incorporation of the Fifth Amendment. The fact that due process is still

used to analyze involuntary confessions is a “historical accident.”

Cooper v. Dupnik, 924 F. 2d 1520, 1529, n. 17 (CA9 1991), rev'd,

Cooper v. Dupnik, 963 F.2d 1220 (CA9 1992) (en banc).

24

dissenting); Stone, The Miranda Doctrine in the Burger Court,

1977 Sup. Ct. Rev. 99, 102-104. One reason for the Miranda

rule is that it provides at least a “brighter-line” rule than the due

process standard. See Withrow v. Williams, 507 U.S. 680, 694

(1993).

A myriad of objective and subjective factors governs the

voluntariness inquiry. “Those potential circumstances include

not only the crucial element of police coercion, the length of the

interrogation, its location, its continuity, the defendant’s

maturity, education, physical condition, and mental health.”

Id., at 693 (citations omitted). This “exhaustive totality-of-

circumstances approach,” see id., at 694, is further complicated

by the elusive concept of voluntariness.

“Except where a person is unconscious or drugged or

otherwise lacks capacity for conscious choice, all incrimi-

nating statements—even those made under brutal treat-

ment—are ‘voluntary’ in the sense of representing a choice

of alternatives. On the other hand, if ‘voluntariness’

incorporates notions of ‘but-for’ cause, the question should

be whether the statement would have been made even

absent inquiry or other official action. Under such a test,

virtually no statement would be voluntary because very few

people give incriminating statements in the absence of

official action of some kind.” Bator & Vorenberg, Arrest,

Detention, Interrogation, and the Right to Counsel: Basic

Problems and Possible Legislative Solutions, 66

Colum. L. Rev. 62, 72-73 (1966).

Therefore, the due process standard has been rightly

criticized as giving too little guidance to the police. See

Schulhofer, Confessions and the Court, 79 Mich. L. Rev. 865,

869 (1991). The inherent subjectivity of determining when the

suspect's “will was overborne,” Schneckloth, 412 U. S., at 226,

further complicates the inquiry. Determining one’s will is

inherently subjective. Thus factors such as the suspect’s

education, intelligence, or adaptation to the stress of incarcera-

tion influence the admissibility of the confession under the

a

25

voluntariness standard. See Fulminante, 499 U. S., at 286, n. 2.

This means that interrogation that is acceptable in some

contexts can render the confession inadmissible due to certain

characteristics of the suspect, which further complicates an

already muddled issue.

This Court has recognized the considerable criticism of the

voluntariness standard. See Miller, 474 U.S., at 116,n. 4. The

complexity of this standard was a substantial reason to not

apply the rule of Stone v. Powell, 428 U. S. 465 (1976) to

Miranda. Precluding Miranda claims from federal habeas

corpus would not lessen the workload of the federal courts,

because the Miranda inquiry would be replaced by the consid-

erably more complex voluntariness issue. See Withrow, 507

U. S., at 693-694.

The threat of civil litigation can deter public employees

from exercising their duties properly. See Harlow v. Fitzger-

ald, 457 U.S. 800, 814 (1982). While the qualified immunity

defense is predicated upon providing government officials with

an objective standard of liability, see Wyatt v. Cole, 504 U. S.

158, 166 (1992), the vagueness and subjectivity of the volun-

tariness standard threatens to overwhelm this defense.

Many confessions can be deemed involuntary yet not the

product of particularly “coercive” interrogation, as that term is

commonly understood. Promises by the interrogator can lead

to a confession being declared involuntary. Thus courts have

struck down confessions made in response to promises of

“nonprosecution, the dropping of some charges, medical

treatment, or a certain reduction in the punishment defendant

may receive ....° See 2 W. LaFave, J. Israel, & N. King,

Criminal Procedure § 6.2(c), pp. 453-454 (2d ed. 1999) (foot-

notes omitted). For example, one court struck down a con-

fession induced by a promise to help the defendant get counsel-

. ing after confessing. See People v. Shaw, 180

Ill. App. 3d 1091, 1094-1096, 536 N. E. 2d 849, 851-852

(1989). This Court has struck down a confession induced by a

promise from a police informant to protect the defendant from

26

his fellow prisoners, an admittedly “close question.” See

Fulminante, 499 U. S., at 287. It has also struck down a

confession induced by a promise to a suspect in custody that he

would be allowed to call his wife after confessing. See Haynes,

373 U. S., at 514. These cases illustrate that a confession can

be involuntary even if there is little actual coercion or official

misconduct. Civil liability should rest on sterner stuff.

The present case highlights the problems with the voluntari-

ness standard. Mincey v. Arizona, 437 U. S. 385 (1978), the

closest case, is distinguishable on several grounds. Mincey

repeatedly asked for counsel, and the interrogation lasted

continuously from 8:00 p.m. until midnight. The interview of

Martinez took only around 45 minutes. See Pet. for Cert. 3.

Martinez never asked for counsel, but only indicated twice that

he would not answer any questions until he was treated. See

supra, at 2.

The most important difference is that Martinez was never

“compelled in any criminal case to be a witness against

himself.” Cf. U. S. Const., Amdt. 5. While Mincey’s interview

was used to impeach his testimony at his criminal trial, see 437

U. S., at 397, Martinez has not been prosecuted. See supra, at

2. Sergeant Chavez thought that Martinez was going to die.

See Pet. for Cert. 3. If he had been right, then the interview

would have been the only way to get Martinez’s side of the

story. The only ones who might have been threatened by the

interview were the officers involved in the shooting. While

Martinez lived to tell his story, this does not change the nature

of the interview. Miranda would have prevented Martinez’s

~ statements from being used against him, but it would not have

prevented any of his statements from being used for or against

Officers Pefia or Salinas in subsequent disciplinary, civil, or

criminal proceedings. See Baxter v. Palmigiano, 425 U. S.

308, 317 (1976) (no Fifth Amendment violation without

criminal prosecution). Allowing this comparatively benign

interrogation to support civil liability threatens to straightjacket

the police in the interrogation room.

27

The voluntariness standard in this cuse provided weak cover

for finding civil liability for questioning contrary to Miranda.

The vagueness of the procedural due process standard means

that this will be repeated unless courts are foreclosed from

basing civil liability upon questioning contrary to this proce-

dural due process standard. While grossly improper interroga-

tion can support civil liability, a more concrete standard and a

greater level of harm are needed.

C. Alternatives.

Something more serious than a violation of the procedural

due process voluntariness standard is needed to support civil

liability for an interrogation.

“Liability is appropriate, however, only when the constitu-

tional violation is complete, and causes injury, out of court.

A prosecutor could be liable for depriving a suspect of food

and sleep during an interrogation, or beating him with a

rubber truncheon, or putting bamboo shoots under his

fingernails.” Buckley v. Fitzsimmons, 919 F.2d 1230, 1244

(CA7 1990), rev’d on other grounds, Buckley v. Fitzsim-

mons, 509 U. S. 259 (1993).

This passage from the Seventh Circuit’s opinion is taken in

the context of allowing prosecutors absolute immunity for Fifth

Amendment or Miranda violations because they involve trial

rights. See 919 F. 2d, at 1244. It also asserts that coercive

interrogation would only be afforded qualified immunity. See

ibid. However, not every act of “coercion” involves pretrial

harm to the suspect. Civil liability should be limited to gross

coercions like those listed in the Buckley passage, but not the

more subtle forms of coercion that also fall within the proce-

dural due process standard.

Interrogators should be held liable under 42 U.S. C. § 1983

for violence, the deprivation of food, water, sleep, or other life

necessities or threats to commit such wrongs against the

suspect. This approach has several related advantages over the

28

voluntariness standard. First, it limits liability to clearly

identifiable harms that are complete without regard to the

admissibility of evidence. It also provides an objective

standard that is much easier to understand than the murky

voluntariness test. Finally, under this standard there is no real

risk of deterring worthwhile, legal interrogation. Violence and

deprivation, whether real or threatened, have no place in the

interrogation room. More subtle forms of psychological

pressure can produce constitutionally valid confessions in the

right context. See supra, at 24-25.

This Court has once invoked due process to regulate

interrogation through criminal sanctions on the interrogating

officers. In Williams v. United States, supra, the Court held

that officers who beat a confession out of a suspect could be

prosecuted for violating the suspect’s due process rights under

the predecessor of 18 U.S. C. § 242. See 341 U. S., at 101-102.

However, not every interrogation that resulted in an involuntary

confession would necessarily lead to criminal sanction. “Some

day the application of [18 U. S. C. §242] to less obvious

methods of coercion may be presented and doubts to the

adequacy of the standard of guilt may be presented.”’ Jbid. In

Williams, the suspects’ interrogation consisted of brutal

beatings and other forms of physical abuse. /d., at 98-99.

“Hence when officers wring confessions from the accused by

force and violence, they violate some of the most fundamental,

basic, and well-established constitutional rights which every

citizen enjoys.” /d., at 101-102 (emphasis added).

This distinction has constitutional significance. Force, the

threat of force, or the deprivation of food, water, or sleep during

interrogation violates substantive due process. Unlike the

procedural due process prohibition against the use of coerced

3. The standard of clarity of pre-existing law for finding civil liability

under 42 U. S. C. § 1983 is the same as for finding criminal liability

under 18 U. S. C. § 242. United States v. Lanier, 520 U. S. 259, 270-

271 (1997).

29

confessions, this right is violated without regard to whether the

suspect is in fact incriminated. The violation is complete with

the beatings.

The Seventh Circuit’s decision in Buckley has been charac-

terized as a substantive due process holding. See Klein,

Miranda Deconstitutionalized: When the Self-Incrimination

Clause and the Civil Rights Act Collide, 143 U. Penn. L. Rev.

417, 451-452 (1994). This Court has recognized that the use of

force by government officials that “shocks the conscience”

violates substantive due process. See County of Sacramento v.

Lewis, 523 U.S. 833, 846 (1998). Like any standard, this test

can be misapplied. See Klein, supra, at 454; Gardner, Section

1983 Actions Under Miranda: A Critical View of the Right to

Avoid Interrogation, 30 Am. Crim. L. Rev. 1277, 1307 (1993)

(criticizing the substantive due process holding of Cooper v.

Dupnik, 963 F. 2d 1220, 1237 (CA9 1992) (en banc)). A

properly calibrated standard as suggested by the Seventh

Circuit’s holding in Buckley provides adequate protection and

an appropriately concrete standard.

The Buckley standard is also consistent with Lewis. The

Lewis Court noted that the intentional infliction of harm is

much more likely to shock the conscience than negligent or

reckless harm. See 523 U. S., at 849. An interrogation practice

that violates substantive due process will involve an intentional

violation of the right, like a beating. Therefore there should be

no difficulty in finding the conduct shocking to the court’s

conscience under the appropriate standard.

While other constitutional standards are available, they are

wanting. This Court has left open the question of whether the

Fourth Amendment’s prohibition of unreasonable seizures

applies to detainees after the arrest has been completed. See

Graham v. Connor, 490 U. S. 386, 395, n. 10 (1989). Extend-

ing the Fourth Amendment to pretrial detainees raises difficult

questions, see United States v. Cobb, 905 F. 2d 784, 788, n. 7

(CA4 1990), that need not be answered in this case. Graham

also mentioned that pretrial detainees had a due process right to

30

be free “from the use of excessive force that amounts to

punishment.” See 490 U. S., at 395, n. 10 (citing Bell v.

Wolfish, 441 U. S. 520, 535-539 (1979)). Interrogation and

prisoner rights are separate issues that should not be mixed.

The substantive due process standard of Buckley does not need

to be supplemented by Bel/’s foreign standard.

The fact that a federal appellate court has allowed a § 1983

action for Sergeant Chavez’s brief, comparatively benign

questioning demonstrates the need to clarify the law. This

Court should limit § 1983 liability for interrogation to the gross

violation that leads to real harm other than the suspect’s

a ceineaeciiata Limiti snaheated

harm, threats of harm, or substantial deprivations will afford

suspects appropriate compensation, while limiting unwarranted

assaults on police practices.

CONCLUSION

The decision of the United States Court of Appeals for the

Ninth Circuit should be reversed.

September, 2002