# Amicus Curiae Brief — Chavez v. Martinez

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0559%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 760

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0559%3A10. Public record. Not legal advice.