Amicus Curiae Brief — Michigan v. Tucker

Supreme Court brief1974

Ask Donna

What actually matters in this document.

Text

Argument:

INDEX

I. The privilege against self-incrimination is not

violated by custodial interrogation which elicits

statements that are not admitted at trial, but

lead to the discovery of other evidence_--_-__._-

A. The holding of Counselman v. Hitchcock

should not be extended to derivative

use of statements made during informal

custodial interrogation _-_.........---

The “cruel trilemma’’.__...____-

2. Inhumane treatment ----_---_-_-.-

4. Concern with unreliability of con-

Privacy Wahwtto655200<.-22255%

The relative roles of the state and

the individual i in theinvestigation

B. The Counselman decision itself offers a

weak foundation for extension of the

privilege in other contexts to encompass

derivative evidence. -_.......--.-.---

II. Even if the self-incrimination clause protects

against custodial interrogatiom which leads to

other evidence, the failure to comply with

Miranda should not compel thé suppression of

WO OVMNNNN See oe eho wsckwnees

Conclusion........__-

—s..<-

Tee

CITATIONS

Cases: .

Boyd v. United States, 116 U.S. 616

Brown v. Walker, 161 U.S. 591...-----------------

California v. Byers, 402 U.S, 424

California v. Green, 399 U.S. 140..-----------------

Commissioner of Customs and Excise v. Harz, (1967)

A.C. 760, [A67] 1 All Eng. Rep. 177. ..-.---------- 40, 41

Counselman v. Hitchock 142 U.S. 547_-..-.--.----- Passim

Davis v. Alaska, No. 72-5794, decided February 27,

1076 ooo occ mec acca dese cbcwcecceccrsessecascces 44

Dutton v. Evans, 400 U.S. 74..-.------------------ 44

Emery’s Case, 107 Mass. 172, 17-.-.------ ----2- 25, 27,40

Gilbert v. California, 388 U.S. 263...-.------------- 20

Grosso v. United States, 390 U.S. 62.-.------------- 4

H.M. Advocate v. Turnbull, 1951 Scots L.T.R. 409... 42

Harris v. New York, 401 U.S. 222_._....--------- 8, 43, 44

Harrison v. United States, 392 U.S. 219__----------- 38

Horowitz, In re, 482 F.2d 72, certioari denied, 414 U.S.

OG nce iwc cancenceennsdoweheseasadeletounncuns 17

Johnson v. New Jersey, 384 U.S. 719--------- 2, 7,9, 19, 32

Kastigar v. United States, 406 U.S. 441....--------- 24, 29

King, The v. Lockhart, 1 Leach 386, 168 All Eng.

OG. BOG ws cnwccienecnteenaseancstsntnans 12-13, 40

King, The v. Warickshall, 1 Leach 263, 168 All Eng.

BI soe widctase senda kecesncerenscnnse se 12, 40

Kuruma.v. The Queen, [1955] A.C. 197, [1955] 1 All

Bang, Rens 206.05 occ sccess cesses ceceesecde-0-

Lawrie v. Muir, 1950 Scots L.T.R. 37..------------

Massiah v: United States, 377 U.S. 201.------------

MceLindon v. United States, 329 F. 2d 238_..--------

MeMann v. Richardson, 397 U.S. 759..-.--.--------.

Cases—continued Page |

Miranda v. Arizona, 384 U.S. 436.....-.- 22-2 ee. Passim

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

Nardone v. United States, 308 U.S. 338... --.-. 34

People ex rel. Hackley v. Kelly, 34 N.Y. 74--..-2-... 24

People v. O’Brien, (1965) Ir. R. 142.---..-2 2. 42

People v. Varnum, 59 Cal. Reptr. 108, 427 P. 2d 772. 23, 34

Queen, The v. Leatham, 8 Cox Crim. Cas. 498... _.-- 39

Queen, The v. Ramasamy, [1965] A.C. 1_..---- 222 -- 42

Quinn v. United States, 349 U.S. 155.--___-2___...- 11

Schmerber v. California, 384 U.S. 757_. 12, 14, 20, 27, 29, 30

Smith v. United States, 324 F. 2d 879, Certiorari denied,

877 US. 954. -_.-.-- 2 eee 37

Smith v. United States, 344 F. 2d §45______________. 37

Ullman v. United States, 350 U.S. 422_________.___. 11

United States v. Burr, 25 Fed. Cas. 38_.__._________- 27,28

United States v. Calandra No. 73-734, decided January

8, 1974.........-_-_-_-_-_--- 34

United States v. Carignan, 342 U.S. 36._..-----__-- 19

United States v. Carneglia, 468 F. 2d 1084___--_._._- 36

United States v. Castellana, C.A. 5, No. 73-2259,

decided January 17, 1974__...._.._____________: 36

United States v. Dionisio, 410 U.S, 1__.---_-__- 8. 20, 29

United States v. Kordel, 386 U.S. 1..-_--_--~- ‘eetwe 22

United States v. Mara, 410 U.S. 19_____-__-_.._-_..- 29

United States. ex rel. Vajtauer v. Commissioner of tIm-

migration, 273 U.S. 103_......--.------ a ee 22-29

Wong Sun v, United States, 371 U.S. 471.222.2224 5, 7

Constitution and statute:

U.S. Constitution: j . . : re

Fourth Amendment... - ~~. Vi hiti be ce ek iene i 7

Fifth Amendment...........-.-.---------- -- passim

18 U.S.C, 3501__...------- 2-222 eee 1

i, tg AGP ld a, te

Dhiba nieces AB AOL Bab NOR Bei 100 WB a ONAL AG

AR A mites 4

a hie tee ee ek tS ee on cae Re er

IV:

Miscellaneous:

Archbold, Criminal Pleading, Evidence and Practice,

Page

§ 1388 ef seq. (38th ed.)__..--_----2-- 2 eee

- Corwin, The Supreme Court's Construction of the Self-In-

crimination Clause, 29 Mich. L. Rev, 1 (1930)_______ 29

Driver, Confessions and the Social Psychology of Co-

ercion, 82 Harv L. Rev. 42 (1968) _________________ 35

2 East, Pleas of the Crown (1803) ____---------- 2 _- 39

Friendly, Benchmarks (1967) - - -- - 11, 14, 18, 19, 21, 30, 43, 44

George, Interrogation of Criminal Defendanis—Some

Views on Miranda v. Arizona, 35 Fordham L. Rev.

RO CI aac sae pee ee nes 43

Gotlieb, Confirmation by Subsequent Facts, 72 L.Q.

Rev. 209 (1956)__.__...---------------------_L- 39, 41

Griffiths & Ayres, A Postscript to the Miranda Project:

Interrogation of Draft Protesters, 77 Yale L.J. 300

(6: § ee ee ee re ene 35

Heydon, IJlegally Obtained Evidence (1), 1973 Crim

Bis MO UO eae tee cece new nena nuenseln 42

Levy, Origins of the Fifth Amendment (1968) - - - ___- 11, 13,19

Medalie, Zeitz & Alexander, Custodial Police Interroga-

tion in Our Nation's Capital: The Attempt to Imple-

ment Miranda, 66 Mich. L. Rev. 1347 (1968) ______-- 35

Morgan, The Privilege Against Self-Incrimination,

34 Minn. L. Rev. 1 (1949)_.__..._--------------- ll

Note, Interrogations in New Haven: The Impact of Mir-

anda, 76 Yale L.J. 1519 (1967) ___...-...---------- 35

Seeburger & Wettick, Miranda in Pittsburgh—A Statis- ,

tical Study, 29 U. Pitt. L. Rev. 1 (1967)__....------ 35

VIII Wigmore, Evidence, § 2251 (3d ed., 1940)_..___-- 18

VIIE Wigmore, Evidence, § 2250 (McNaughton Rev.

Gn the Supreme Court of the Wnited States

-OcToBER TERM, 1973

No. 73-482

. SratTe oF MICHIGAN, PETITIONER

THomas W. TUCKER

;

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

The United States has a direct interest in the con-

stitutional standards governing the admissibility of

relevant evidence in criminal trials. An Act of Con-

gress (18 U.S.C. 3501) reflects the public policy of the

United States that all confessions shall be admissible

in evidence if given voluntarily. While this case does

not involve the admissibility of a confession, the same

policy applies with equal, if not greater, force to the

admissibility of evidence to which law enforcement

officers are led by investigation of a voluntary state-

ment, where such evidence is of independent probative

value. Moreover, there are occasions when, because of

uncertainty as to whether Miranda warnings need be

(1)

ett tea Ee de eet ot eg ape weer

RE TN Ta

on wh akan Se

1 CI tie AAO as

SG ape SEE AERA ASA ss AOE A NRL he tite rt. Be ade Lat

en tae Pera

MARE eee

given or because of unintentional oversight, the four.

fold Miranda warnings are not administered prior to

interrogation by law enforcement officers employed by

‘arious agencies of the United States. Whether the

exclusionary rule formulated in Miranda v. Arizona,

384 U.S. 436, is to be extended to exclude not only

the statements made but probative evidence discovered

as a result of those statements is, therefore, of signifi-

cant concern to the United States.

STATEMENT

The factual background of this case is set forth in

the Brief for the Petitioner (pp. 45) and need not be

restated here. We present only those facts directly rele-

vant to the legal issues to which we address ourselves

in this brief.

After being lawfully arrested for rape, respondent

Was interrogated by the police. Prior to the commence-

ment of such interrogation, he was advised of his right

to remain silent and his right to consult with counsel

(but not his right to the appointment of counsel), in

accordance with the practice then in effect." Respond-

ent related an alibi explaining his bloody appearance

and told the police that at the time of the crime he

was with a friend, one Robert Henderson. When the

police contacted the “alibi’’ witness for corroboration,

Henderson’s statement tended instead to incriminate

respondent.

1 The interrogation took place on April 19, 1966, and Miranda

v. Arizona, 384 U.S. 4386, was not decided until some two

months later, on June 13, 1966. Since, however, the trial here

took place after Miranda, its principles are applicable. John-

son V. New Jersey, 384 U.S. 719, 732-733.

SRE ART OA A ATE TRI ARNT ME LC IEE STANT AENE YS prea RANI MURR GT emp Pte NR

While respondent’s statements to the interrogating

officers were not admitted at trial because they failed

to meet the test of the intervening decision in Miranda,

respondent contended also that the identity of the

“alibi” witness was the product of the Miranda viola-

tion and that his testimony should consequently have

been suppressed as the “‘fruit of the poisonous tree.”

Rejecting this argument, the state courts affirmed the

conviction. However, the United States District Court

for the Eastern District of Michigan granted respond-

ent’s petition for a writ of habeas corpus, finding

that the witness’ testimony was inadmissible because

of the Miranda violation (Pet. App. 14-21). The

Court of Appeals for the Sixth Circuit affirmed, rul-

ing that such evidence was the “fruit of the poisonous

tree” (Pet. App. 13-14).

SUMMARY OF ARGUMENT

This case involves the admissibility of evidence (the

testimony of a witness) derived from investigation of a

statement made to police by respondent while lawfully

in custody but not fully advised of his rights as pre-

seribed by Miranda v. Arizona, 384 U.S. 436. The case

raises two analytically distinct issues: the first concerns

the scope of the privilege against self-incrimination it-

self, which we submit does not extend to informal cus-

todial interrogation which elicits statements that are not

admitted at trial, but merely lead to other evidence ; the

second issue, in connection with which it is assumed that

the constitutional privilege is held to apply to such in-

terrogation, is whether the failure to give the Miranda

Bi GE IRS I hes

shalt

Wrest

AAT REBAP SI tot WE a AA hn basta:

RAPE tke Ketan aiele tee teal BA

PES ASE Ses

TIME OF AS OPEL Bee PEE ALR AT ITE BO EE

warnings should result not only in exclusion of the state-

ments but of their fruits as well.

1. The threshold issue involves the scope of the privi-

lege against self-incrimination as applied in the context

of informal custodial interrogation. Since the purpose

of the four-fold warning prescribed by Miranda is to

insure that statements are not elicited from a suspect in

violation of the self-incrimination clause, it is neces-

sary to determine whether the same protection which

is accorded to a witness compelled to testify under oath

before a grand jury or a similar body—.e., a privilege

against being compelled to give statements which could

be used against him directly or as a source of other evi-

dence—should be accorded to a person who is lawfully

incarcerated and is subject to informal custodial inter-

rogation (which does not involve any police conduct

that would render the statement involuntary under tra-

ditional standards).

Our submission is that this issue differs significantly

from that presented in cases such as Counselman Y.

Hitchcock, 142 U.S. 547, where the Court held that a

claim of the privilege against self-incrimination, as-

serted in resisting the giving of compelled (under threat

of imprisonment for contempt) sworn testimony before

a grand jury, may not be overridden by a statutory

grant of immunity limited to testimonial use of the

compelled statements and not protecting against deriva-

tive use. We submit that Counselman should not be ex-

EAE ADR EILEEN NIE PER AS BET PEO TELE URIS

tended to cover the materially different situation here

involved. |

Our contention is based principally on the fact that

few if any of the policies heretofore recognized by this

Court to underlie the privilege against self-incrimina-

tion are adversely implicated by informal custodial in-

terrogation which leads to the discovery of other evi-

dence (provided, of course, that the statements are

not sectired through the kind of offensive police con-

duct recognized prior to Miranda as vitiating the ad-

missibility and voluntariness of a confession). These

policies, outlined by the Court in Murphy v. Water-

front Commission, 378 U.S. 52, 55, include few values

that are threatened by the position for which we con-

tend. Such interrogation cannot lead to the introduction

of self-deprecatory statements of questionable reliabil-

ity. Nor is there any question here of use of cruel or in-

humane methods to extract admissions from a suspect.

Moreover, two of the constitutional policies cata-

logued in Murphy are absent here, while present in the

Counselman situation, thus supporting a distinction

between the two situations for purposes of delineating

the scope of the privilege: (1) In the case of formal

testimony before a grand jury, at a trial, or ina legis-

lative proceeding, the individual is subjected to the

“eruel trilemma’’ of contempt, perjury, or self-in-

crimination, whereas in the context of informal inter-

rogation, while statements may in’ some senses be

534-752—74——2

OR EEN TE IRE RO INES

Bh OBE IRIS A take SHSM

Cp RAS Nace aE EA LP id WS heb Mk Oa

considered “compelled”, neither silence nor falsehood

exposes the subject of interrogation to sanction; (2)

in the Counselman formal proceedings context, a wit-.

ness may be called to testify without any showing that

his evidence is legitimately necessary to the conduct of

the proceedings, so that we can have no assurance that

his “zone of privacy” is being invaded justifiably;

here, by contrast, a fully justified probable cause

arrest of the suspect has been made, the information

sought from him is demonstrably pertinent to a erimi-

nal investigation in progress, and no right of his “to

be left alone” is being infringed.

Apart from the foregoing distinctions deriving from

considerations of constitutional policy, we will show

below that there are significant historical and analyt-

ical weaknesses in Counselman itself that suggest the

Court should proceed with caution before electing to

extend its derivative evidence prohibition to other

circumstances. .

2. Even if we are wrong in our analysis of the scope

of ‘the self-incrimination clause in this context, it does

not follow that evidence to which law enforcement

officers were led as a result of statements obtained

without prior Miranda warnings must be excluded.

While Miranda may have extended the protection of

the self-incrimination privilege to informal custodial

interrogation, it does not follow that a statement elic-

ited without the Miranda warnings has thereby actually

been obtained in violation of the privilege against self-

incrimination. Our reading of the purpose of those

warnings leads us to the conclusion that they were

viewed by this Court not as part of the constitutional

—

mandate itself, but as a pragmatic device to help in-

sure that the privilege is not violated ; the exclusionary

rule of Miranda, in turn, is the means by which com-

pliance with its prophylactic procedural rule is en-

forced. Since, therefore, the interrogation of respond-

ent violated these procedural rules rather than, di-

rectly, his constitutional privilege, the Fourth Amend-

ment exclusionary rule suppressing fruits of a direct

constitutional violation (e.g., Wong Sun v. United

States, 371 U.S. 471) need not be applied.

Moreover, one of the principal considerations un-

derlying the extension of the privilege against self-

incrimination to custodial interrogation was to ‘‘guard

against the possibility of unreliable statements”’

(Johnson v. New Jersey, 384 U.S. 719, 730). That fae-

tor is totally absent when statements made by an ac-

cused are not admitted and all that is at issue is the

admissibility of derivative evidence, which still must

be connected independently to the defendant.

Furthermore, it is unlikely that the limitation on

the exclusionary rule which we here urge will have

any significant impact on its efficacy in compelling

compliance with the Jfiranda procedural require-

ments. Available empirical evidence suggests that the

| Miranda warnings have not had a substantial impact

on the decision of suspects to respond to questions.

In these cireumstances, it is hardly likely that law

enforeement officers will risk losing a confession in

the speculative hope of enhancing their ability to ob-

tain leads to other evidence, which still must be con-

nected independently to the defendant. This is par-

ticularly true when the ‘‘derivative evidence’’ is a

RESP aa Neate YORE PT NNR Ie ECE NERA Ste NEST

ae ei tate Vari: Carlee:

Bj Song c, ~ - n s * ~ ’ =

a ag OEE AN Ge RIE LIE ote MES

I II OO eee

a el er en —_—_—_—_—_———

live witness whom the law enforcement officers ¢an

never be certain will agree to provide a complete or —

truthful version of the events. Indeed, in the instant

case, the full warnings were not given because

Miranda had not been decided when the interrogation

took place; and the defendant gave the police the

name of a person he hoped would be an alibi witness.

There was no guarantee that this witness would not

have completely corroborated his story.

Moreover, where the ‘‘derivative evidence”’ is a live

witness it can never be known with any degree of

certainty whether or not he would have come forward

or have ‘een discovered anyway, even without the

statement of the defendant. While in other contexts

a full blown pre-trial hearing on this issue might be

appropriate, where, as here, there has been no clear

violation of the self-inerimination clause, and where

the failure to exclude the evidence will have no effect

on the deterrent efficacy of the Miranda exclusionary —

rule, the witness should be permitted to testify with-

out engrafting yet another pre-trial ‘“‘trial” on the

criminal process.

Finally, it is clear from cases such as Harris v.

New York, 401 U.S. 222, that the Miranda exclusior-

ary rule is not absolute and all-pervasive. What is

entailed in the decision whether to extend the rule to

evidence that may be deemed the ‘‘fruit’’ of a viola-

tion of the Miranda procedural rules is a balancing

of the various interests at stake. We submit that, in

this case, the balance should be struck in favor of ad-

missibility.’ | :

“2 The issue presented by the State (Pet. 2), is concerned

specifically with “derivative use” of the testimony of a live

PRP IRD IR LCE BE UT Moira a 5 are Np ate Rie ible cm, = es

. an PERE DAL LEI EPO PHO LN I T EAE ARES MO I RL ARP ATH PUI: AMI RE Ue SRL ay

ARGUMENT

THE PRIVILEGE AGAINST SELF-INCRIMINATION IS NOT VIO-

LATED BY CUSTODIAL INTERROGATION WHICH ELICITS

STATEMENTS THAT ARE NOT ADMITTED AT TRIAL, BUT LEAD

TO THE DISCOVERY OF OTHER EVIDENCE

Respondent made a statement to the police after

having received a warning of rights that did not fully

comply with the requirements of Miranda v. Arizona,

384 U.S. 436. That statement was not introduced in

evidence against him at his subsequent trial, and it

seems clear that it could not have been introduced

without at least a partial overruling of Miranda or

of Johnson v. New Jersey, 384 U.S. 719, which held

Miranda applicable to all trials occurring, as re

spondent’s did, after the date of the Miranda de-

cision. However, as a result of their investigation of

the accuracy of respondent’s exculpatory explanation

of the damaging evidence that he was badly scratched,

the police questioned witness Henderson and learned

from him of damaging admissions that respondent

had made. The testimony of Henderson regarding

witness, and this case could be decided on that ground alone

(see pp. 36-38, infra). Our argument is, however, principally ad-

dressed to the broader question of derivative use of any kind of

evidence, inanimate as well as animate. We view this approach as

appropriate because we deem an analysis of the general questiort

of derivative use to be essential to a consideration of live witness

testimony. We believe that the principal considerations that dictate

reversal of the judgment of the court of appeals apply with full

force to all types of derivative evidence.

. P ee Oe ee we

CL. LBB ce OEE ABA AN AN EILEEN CR LAL ALERES TRA AOEAL TENA an Al

these admissions was used at the trial, and the con.

formity of that use to the requirements of the Fifth

Amendment and of the Miranda decision are at issue

here.

i The issue presented in the instant case was not ruled

i upon in the otherwise comprehensive Miranda decision,

and Miranda need not be overruled or modified in any

of its holdings in order to sustain the constitutionality

of respondent’s conviction (see pp. 42-44, infra).

Broadly viewed, the essential issue here presented

is whether the holding of Counselman v. Hitchcock, 142

U.S. 547, should be extended to apply to the context of

informal custodial police interrogation. Counselman

held that a claim of the privilege against self-incrimina-

; tion asserted in resisting the giving of compelled (under

threat of imprisonment for contempt) sworn testimony

before a grand jury may not be overridden by a statutory

grant of immunity limited to testimonial use of the com-

_ pelled statements and not protecting against derivative

use of such compelled testimony. We submit that Coun-

selman should not be extended to cover the materially

different situation here involved.

Our contention is based principally on the fact that

few if any of the policies heretofore recognized by this

Court to underlie the privilege against self-incrimina-

tion are adversely implicated by informal custodial in-

{ terrogation of which only derivative use is made (pro-

vided, of course, that the statements are not secured

| through the kind of offensive police conduct rec-

ognized prior to Miranda as vitiating the admissibility

VOR aac ee a

eager RD a SOTA eR cal wey Fag ar Cee a ean Ne ee in ones

L MLL LLL OLIS LOSSY SOE ILI IIE ELE NILE LEIA LLL SE ALLEL MELE REL IIE SLIT TO —

P "

and voluntariness of a confession). These non-impli-

cated policies include at least two that are operative in

the Counselman situation (see pp. 16, 17-18, infra), thus

providing a sound basis for differentiating the present

ease from Counselman. Moreover, apart from the

analytic bases for distinction, we will show below that

there are significant historical and analytical weak-

nesses in Counselman itself that suggest that the Court

should proceed with caution before electing to extend

its derivative evidence prohibition to other circum-

stances.

A, THE HOLDING OF COUNSELMAN V. HITCHCOCK SHOULD NOT BE

EXTENDED TO DERIVATIVE USE OF STATEMENTS MADE DURING

INFORMAL CUSTODIAL INTERROGATION

The circumstances which prompted the adoption

of the self-incrimination clause have been detailed in

opinions of this Court and the writings of commenta-

tors. Essentially, this history reveals that the privilege

was aimed at the evils of the Inquisition and the Star

Chamber. It was designed to prohibit the government

from compelling incriminating testimony under oath.

In a more refined sense, “[t]he distinction which has

emerged, often expressed in different ways, is that the

privilege is a bar against compelling ‘communications’

* See, ¢.g., Ullmann v. United States, 350 U.S. 422, 428; Brown

v. Walker, 161 U.S. 591; Quinn v. United States, 349 U.S. 155,

161-162. See also Morgan, The Privilege Against Sel f-Incrimina-

tion, 34 Minn. L. Rev. 1-23 (1949); Levy, Origins of the Fifth

Amendment (1968); VIII Wigmore, Evidence, § 2250, pp. 267-

295 (MeNaughton Rev. 1961) : Friendly, Benchmarks, pp. 270-

Y71 (1967).

Peat = |

+ LR ED ae Se

heise, Gakdc! 2

WBS oe Te ee

dstahd way Rae WALT 08

SNE ee eR i SR Die

pO ial ED oie SARIN RROD Bt

ee eee ee

or ‘testimony,’ but that compulsion which makes a sus-

- pect or accused the source of ‘real or physical evidence’

does not violate it.” Schmerber v. California, 384 U.S.

757, 764. And, of course, it is the introduction of a de-

fendant’s own testimony that is expressly proscribed by

the Fifth Amendment’s textual mandate that no person

“shall be compelled in any criminal case to be a witness

against himself.” See Murphy v. Waterfront Commis-

sion, 378 U.S. 52, 75-76. |

Against this background, if this Court were writing

on a clean slate, it could be cogently argued that while

compelled responses of an accused are “testimonial” and

should accordingly be barred from use at trial,‘ leads

derived therefrom, which are not in and of themselves

the “testimonial” statements of the accused, should be

held to be outside the protective scope. of the

self-incrimination clause. Indeed, at common law, at the

time of the adoption of the Constitution, it was settled

that the fruits of improperly obtained confessions were

admissible at the trial of the accused. The King v. War-

ickshall, 1 Leach 263, 168 Eng. Rep. 234 (1783); The

*Compare Massiah v. United States, 377 U.S. 201, 207: “We do

not question that in this case, as in many cases, it was entirely

proper to continue an investigation of the suspected criminal

activities of the defendant and his alleged confederates, even

though the defendant had already been indicted. All that we hold

is that the defendant’s own incriminating statements, obtained by

federal agents under the circumstances here disclosed, could not

constitutionally be used by the prosecution as evidence against

him at his trial” (emphasis in original).

LOTTE LLG OO OE LER E CO ELL LS WINN EIEN ct ON IR SN AR sec Src me Narre amt,

King v. Lockhart, 1 Leach 386, 168 Eng. Rep. 295

(1785).”

We recognize, however, that since the decision in 1892

in Counselman v. Hitehcock, 142 U.S. 547, it has been

accepted in the United States that the privilege against

self-incrimination protects a person from being com-

pelled (under threat of contempt) to give testimony be-

fore a grand jury, if the testimony could be used directly

to convict him of a crime or if it could lead to the dis-

covery of other evidence which may be used to convict

him. Since Miranda holds, in considering the admissi-

bility of the statements themselves, that statements

made during informal custodial interrogation are pre-

sumptively to be deemed compelled unless preceded by

the full warnings prescribed in that decision and a clear,

knowing, affirmative waiver of rights, the combination

of Miranda and Counselman would appear, in dry logic,

to catalyze a Fifth Amendment prohibition against

derivative use of such statements (rather than the more

limited prohibition established in Miranda against the

testimonial use of the statement itself).

On the other hand, as Judge Friendly has observed

in his incisive essay on the Miranda decision, if the

privilege ‘tin Wigmore’s phrases, guards against the

employment of legal process ‘to extract from the per-

son’s own lips an admission of guilt, which would thus

*“The courts have always assumed that the meaning of the

constitutional [self-incrimination] clause is determined by the

common law.” Levy. Origins of The Fifth Amendment, p. 429

(1968).

I POOP Oe REIN,

PTS

3 a

take the place of other evidence’ or to require him ty

produce documents or chattels wherein he assumes

‘moral responsibility for truth telling,’ inquiry de-

signed to elicit unsworn answers leading to other cul-

prits or to real evidence not in the suspect’s possession

but not themselves offered in evidence would not be coy-

ered; although a suspect’s answers are indeed ‘testi-

monial’ insofar as they implicate him and would thus

be banned as such, their use merely to find other evi-

dence establishing his connection with the crime differs

only by a shade from the permitted use for that pur-

pose of his body or his blood.”* Friendly, Beneh-

marks, p. 280 (1967).

Since, as Judge Friendly concludes, “th[is] case lies

between what the state clearly may compel and what

it clearly may not, a strong analytical argument can

be made for an intermediate rule whereby although it

cannot require the suspect to speak by punishment or

force, the non-testimonial fruits of speech that is ex-

cludable only for failure to comply with the Miranda _

code could still be used” (¢bid.). We urge the adoption

: of such an “intermediate rule’’ here.

Limitation of the Miranda prohibition to testi-

monial use of the statements themselves would not

i undermine to any significant degree the values .re-

flected by the privilege against — self-incrimination.

These Values were comprehensively catalogued by the

Court in Murphy v. Waterfront Commission, supra,

378 U.S. at 55:

— Pe Te

ne ee oe Sig 5 acti dle

Sa yi is i tl rn ae i

* Judge Friendly was here alluding to the decision, rendered

one week after Miranda in Schmerber v. California, 384 U.S. Ti.

oe ne Ye ee ee eee

———

The privilege against — self-incrimination

“registers an important advance in the develop-

ment of our liberty—one of the great land-

marks in man’s struggle to make himself civil-

ized.’ ” Ullmann.v. United States, 350 U.S, 422,

426. It reflects many of our fundamental values

and most noble aspirations: our unwillingness

to subject those suspected of crime to the cruel

trilemma of self-accusation, perjury or con-

tempt; our preference for an accusatorial rather

than an inquisitorial system of criminal justice ;

our fear that self-incriminating statements will

_ be elicited by inhumane treatment and abuses;

our sense of fair play which dictates “a fair

state-individual balance by requiring the gov-

ernment to leave the individual alone until good

cause is shown for disturbing him and by re-

quiring the government in its contest with the

individual to shoulder the entire load,” 8 Wig-

more, Evidence (McNaughton rev., 1961), 317;

our respect for the inviolability of the human

personality and of the right of each individual

‘‘to a private enclave where he may lead a pri-

vate life,’’ United States v. Grunewald, 233 F.

2d 556, 581-582 (Frank, J., dissenting), rev'd

353 U.S. 391; our distrust of self-deprecatory

statements; and our realization that the privi-

lege, while sometimes “a shelter to the guilty,”’

is often ‘‘a protection to the innocent.’ Quinn Vv.

United States, 349 U.S. 155, 162. [Footnote

omitted. ]

The informal custodial interrogation at issue here—

which involved use neither of “third degree’’ tech-

niques nor of any other tactics that would render a

confession involuntary under traditional standards—

does not to any significant degree implicate these impor-

tant policy considerations:

1. The “cruel trilemma™

Perhaps the most significant analytic distinction be-

tween the instant case and the Counselman context js

that respondent, had he chosen to remain silent or

(as he in fact did) make a false statement, was free to

; do so without exposure to the “cruel trilemma of self.

; accusation, perjury or contempt,’’ the first of the

values enumerated in Murphy as underlying the self-

incrimination privilege. This vital difference supportsa

q refusal to extend Counselman back from the courtroom,

i) grand jury chamber, or legislative hearing room to the

informal custodial interrogation context.

2. Inhumane treatment

: This is a truly important concern, although whether

q it is actually native to the self-incrimination provision

of the Fifth Amendment or has arrived there by a

marriage with fundamental due process notions is a

debatable proposition (see dissenting opinion of

White, J., in Miranda, supra, 384 U.S. at 527-528). Itis

implicated neither in the present case nor in the Cour-

selman situation, although the possibility of such

abuses being perpetrated (and going undetected) is,

while still somewhat remote, greater in the case of ir-

formal police interrogation than in more formal pro-

wren ¥ mee

ceedings of the kind considered in Counselman.@ We do

not believe, however, that the entirely appropriate aver-

sion to such tactics warrants a per se rule which in effect

prestunes that such misconduct has occurred where, as

here, it is palpably clear that the presumption does not

correspond to reality.

3. Privacy valucs

Since there was compelling evidence pointing to the

respondent’s involvement in this brutal offense, and

probable cause to justify his arrest, it cannot be urged

seriously that his interrogation offends ‘our sense of

fair play which dictates ‘a fair state-individual hal-

ance by requiring the governnent to leave the individ-

val alone until good eause is shown for disturbing

him’” or unfairly infringes on his right ‘to a private

enclave where he may lead a private life.” > Such in-

terrogation is again different from that involved m

the grand jury proceéding in Cowrselman, or from

interrogation by a legislative committee, where wit-

nesses are required to appear without any showing of

probable cause to believe they have committed an of-

fense or that they have any relevant information to

convey.

® We would agree that. on due process grounds, a comprehen-

sive exclusionary principle, reaching fruits as well as statements

themselves, is appropriate to deter such illegal and offensive police

interrogation tactics.

7C£. Jn ve Horowitz. 482 F. 2d 72. 85 (C.A. 2), certiorari denied,

414 U.S. 867: “{ N]o Supreme Court decision has upheld a Fifth

Amendment claim predicated solely, or even primarily, on the basis

of an invasion of privacy.”

Oe aie eM)

4. Concern with unreliability of confessions

Finally, interrogation that leads only to other eyi-

dence, which still must be connected to the accused

; by independent evidence, cannot possibly lead to

abuses which will undermine the ‘‘protection to the

innocent” which the self-incrimination clause pro-

vides.* Likewise, since, we are not dealing with interroga-

: tion which will result in the admissibility of any state

ments made by a defendant, there need to be no concern

s about the trustworthiness of “self-deprecatory state-

ments” (here, of course, the statements were exculpa-

tory). That this concern was critical to extension of the

; privilege against self-incrimination to custodial inter-

rogation “ is borne out by the discussion of the purpose

* Professor Wigmore outlined these abuses in Section 2251 of

his treatise (VILL Wigmore, FE r/dence (3d ed. 1940)) :

“If there is a right to an answer, there soon seems to be a

right to the expected answer,—that is to a confession of guilt.

Thus the legitimate use grows into the unjust abuse: ultimately

the innocent are jeopardized by the encroachments of a bad

system. * * * For the sake, then not of the guilty but of the

innocent accused, and of conservative and healthy principles of

judicial conduct, the privilege should be preserved.”

® This concern was,spegifically alluded to in Afjranda, supra, 354

U.S. at 455, n. ist Justice White in his dissent attributed

the “underpinning” of the holding in Miranda to the majority's

“deep-seated distrust of all confessions” (384 U.S. at 537). See also

Friendly, Benchmarks, supra, at 281-282 :

“No matter how many explanations are offered, there can be

no real doubt that a prime motive for extending the privilege

to out-of-court proceedings must have been the Court's belief

that the traditional due process approach did not. sufficiently

protect against the truly dreadful risk of the false confession.”

7 At common law at the time of the adoption of the Consti-

tution, informal interrogation (not under oath) was permitted

of the Miranda rule in Johnson v. New Jersey, supra, 384

U.S. at 729-730:

[The Miranda warnings] are designed in part

to assure that the person who responds to inter-

rogation while in custody does so with intelli-

gent understanding of his right to remain silent

and of the consequences which may flow from

relinquishing it. In this respect the rulings se-

cure scrupulous observance of the traditional

principle, often quoted but rarely heeded to the

full degree, that “the law will not suffer a pris-

ener to be made the deluded instrument of his

own conviction.’? Thus while Escobedo and Mir-

anda guard against the possibility of unreliable

statements in every instance of in-custody in-

terrogation, they encompass Situations in which

the danger is not necessarily\as great as when

the accused is subjected to overt and obvious

coercion. [Footnote omitted. ] he

As Judge Friendly has observed (Benchmarks,

supra, at 282) :

Although many citizens devoted to the Bill of

Rights may not agree that a “fair state-indi-

vidual balance” requires the government “to

shoulder the entire load” in the investigation as

during the course of a criminal investigation, and confessions

or admissions so obtained were admissible unless it was shown

that they were coerced. Levy, Origins of the Fifth Amendment,

pp. 325-332 (1968). As late as 1951, the Court left open the issue

“fw]hether involuntary confessions are excluded from federal

criminal trials on the ground of a violation of the Fifth Amend-

ment’s protection against self-incrimination, or froma rule that

forced confessions are untrustworthy * * *.” United States v.

Cariqnan, 342 U.S. 36. 41. See also Friendly, Benchmarks, supra,

at 271. n. 24.

it does in the prosecution of crime, few will

deny that one innocent man sent to his death

3 or to a Jong prison term because of a false con-

fession is one too many. There is thus good rea-

son to impose a higher standard on the police

before allowing them to use a confession of mur-

der than a weapon bearing the confessor’s

fingerprints to which his confession has led;

doubtlessly this is the reason why fruits of a

confession “not blatantly coerced” are admitted

in England, India, and Cevlon, countries on

whose experience the JMiranda opinion relied.

" ey ee

3. The relative voles of the state and the individual in the

investigation and prosecution of crime

iit OAD site DALE AN ODEO DAE TAR ed! patie

Of the values identified in Mirphy as underlying

the privilege against self-incrimination, the only ones

even arguably implicated by a holding permitting cus-

todial interrogation that leads to other evidence are the

| policy that “the government in its contest with the

4 individual * * * shoulder the entire load’? and, to a

: very limited extent, our “preference for an accusato-

i rial rather than an inquisitorial system.”’ But, of

: os ’ : as. 3

; course, it is by now well established that an individual

: may indeed be compelled, notwithstanding — these

‘alues, to give evidence (albeit of a non-testimonial

4 nature) that may assist Jaw -enforeement authorities

in convicting him of a crime. See, ¢.g., Schmerber v.

: California, 384 U.S. 757 (blood samples); Gilbert. v.

; California, 388 U.S. 263 (handwriting exemplars);

United States v. Dionisio, 410 U.S. 1 (voice exem-

plars). As this Court observed in Schmerber, “the

privilege [against self-incrimination] las never heen

a OLDIES BO BEE A ONIN a

—_

given the full scope which the values it helps to pro-

tect suggest” (384 U.S. at 762).

Certainly interrogation which elicits leads to other

evidence does not offend those values any more than

the compulsory taking of blood samples, fingerprints,

or voice exemplars, all of which may be compelled in

an “attempt to discover evidence that might be used

to prosecute [a defendant] for a criminal offense” (td.

at 761). To quote again from Benchmarks, supra, (p.

282) :

Although reception of fruits would indeed vio-

late what have been called “theological” hases for

the privilege, these are hopelessly inconsistent

with Schmerber.

Finally, the non-extension of Counselman is sup-

ported by another distinction between informal cus-

todial interrogation and the more formal context of

erand jury or similar proceedings—a distinction which

relates not so much to the values fostered by the priv-

ilege as to the preconditions for its invocation. In

Counselman and similar situations, a formal, express

assertion of the privilege is required before the testi-

mony sought may be withheld. Even in coerced con-

fession cases, the assertion of the privilege, although

not formal or express, may readily he inferred from

the need to use physical or psychological coercion to

elicit a statement. In Miranda, for the first time, the

Court abandoned the requirement that some reason-

ably clear demonstration of unwillingness to speak

precede the draping of the protective cloak of the priv-

ilege (United States ex rel. Vajtauer v. Commissioner

534 -752—-74-—__4

3 PASAT Ra te: pe LOL TITS RRL BE AMIS LIOR

OLE BIAS CBT

SSeS ake GAARA AA BSR CAN aa Bila Notice eK 4

of Immigration, 273 U.S. 103, 113) ;" it substituted

instead, for cases of informal custodial interrogation,

an urebuttable presumption that the privilege has

been asserted and overborne whenever the statement

has not been preceded by the full warning of rights

and an express waiver. We do not here question the

validity of the considerations that motivated the

Court’s ‘“‘waiver’’ of the requirement that there be

actual compulsion overcoming a perceptible assertion |

of the privilege (express or reasonably inferrable) in

order for the constitutional protection to accrue. We

do, however, suggest that those considerations are

not significantly implicated by custodial interrogation

that results in responses which, although they may lead

to other evidence, are not admitted at trial.

We emphasize again that the *‘intermediate rule”

which we advocate is limited solely to informal cus-

todial interrogation which involves neither third de-

gree tactics nor other forms of interrogation that

would render any statement involuntary under the

traditional test. It applies only where, as here, the

informal custodial interrogation standing alone is not

regarded as an activity that society has any interest

deterring.” (Indeed, there may be occasions where

there is compelling interest in such interrogation, such

as where it is directed to the discovery and termina-

11The necessity for such an assertion of the privilege was

recently reaffirmed in United States v. Kordel, 397 U.S. 1.

12 The distinction was noted by Chief Justice Traynor in a

—

tion of an ongoing criminal activity such as a kid-

napping or extortion.) It is in these circumstances that

so few—if any—of the values reflected by the self-

incrimination clause are implicated.

B. THE COUNSELMAN DECISION ITSELF OFFERS A WEAK FOUNDATION

FOR EXTENSION OF THE PRIVILEGE IN OTHER CONTEXTS TO EN-

COMPASS DERIVATIVE EVIDENCE.

Counselman v. Hitchcock held that a “witness is

protected ‘from being compelled to disclose the cirewn-

stances of his offence, the sources from which, or the

means by which, evidence of its commission, or of his

connection with it, may be obtained, or made effectual

for his connection, without using his answers as direct

admissions against him’” (142 U.S. at 585). We have

shown in the preceding discussion that the instant case -

is distinguishable from Counselman and other cases

in which witnesses have been subpoenaed to appear

before an inquisitorial body such as a grand jury ora

legislative committee. But even if the Court should

disagree with that analysis, Counselman should not be

extended beyond the type of case with which it specifi-

cally dealt without a fresh consideration of the valid-

somewhat different. context in People v. Varnum, 59 Cal. Reptr.

108, 427 P. 2d 772, 776: .

“Unlike unreasonable searches and seizures. which always

violate the Constitution. there is nothing unlawful in question-

ing an unwarned suspect so long as the police refrain from

physically and psychologically coercive tactics condemned by

due process and do not use against the suspect any evidence

obtained.”

credence Wide RY Te AUR he ea ANC A

eth pe PR RAS

Deabitctate esta nA ARE Lea CLE ac wenn bale"

Ba a Nn a

ity of its holding. Cf. Grosso v. United States, 390

U.S. 62, 76 (Stewart, J., concurring). The rationale

upon which the Counselman holding rests, it is re-

spectfully submitted, is simply inadequate to support

the broad reading of the scope of the self-inerimina-

tion clause there announced. And, indeed, the dictum

in Counselman that only transactional immunity can

overcome a claim of privilege has already been over-

ruled. Kastigar v. United States, 406 U.S. 441.

Although the holding in Counselman regarding the

scope of the privilege against self-incrimination has

been cited on repeated occasions,” that holding was

supported by little in the way of persuasive authority

or analysis. Initially, the opinion in Counselman en-

gaged in an exhaustive but inconclusive analysis of

state court holdings. All that this established was that

those state courts that had construed constitutional pro-

visions worded in language not significantly different

from the Fifth Amendment had held that limited use

immunity (of the kind afforded by the Act of Congress

held uneonstitutional in Counselman) would suf-

fice to overcome the claim of privilege, whereas those

3 See, e.g.. Kastigar vy. United States, 406 U.S. 441, 454:

Murphy v. Waterfront Commission, 378 U.S. 52, 78-79.

* An example of such a case is People er rel. Hackley v. Kelly.

24 N.Y. 74, 83-84, where it was held:

“If a man cannot give evidence upon the trial of another per-

son without disclosing circumstances which will make his own

guilt apparent or at least capable of proof, though his ac-

count of the transactions should never be used as evidence, it

is the misfortune of his condition and not any want of human-

ity in the law. If a witness objects to a question on the ground

that an answer would criminate himself, he must allege. in

substance. that his answer, if repeated as his admission on his

FADE LISSA OM EI GRG ts SAPS OEE EP DOI EID LL IBGE DEMON, OO LIS, LOE IO RAI LA LPB ENG EP ail

—

state courts that had construed constitutional provi-

sions providing protection to a witness against being

compelled to “accuse or furnish evidence against

himself” (rather than simply affording a privilege

against being compelled to be a witness against one’s

self), held that a limited use immunity statute was

insufficient.”

own trial, would tend to prove him guilty of a criminal offence.

If the case is so situated that a repetition of it on a prosecu-

tion against him is impossible, as where it is forbidden by a

positive statute, I have seen no authority which holds or inti-

mates that the witness is privileged. It is not within any rea-

sonable construction of the language of the constitutional

provision.”

% An example of such a holding is Emery's Case. 100 Mass.

172. 182, in which it was held:

“The third branch of the provision in the Constitution of

Massachusetts. ‘or furnish evidence against himself. must be

equally extensive in its application: and, in its interpretation,

may be presumed to be intended to add something to the sig-

nificance of that which precedes. Aside from this consideration,

and upon the language of the proposition standing by itself,

it is a reasonable construction to hold that it protects a person

from being compelled to disclose the circumstances of his

offence. the sources from which, or the means by which evi-

dence of its commission, or of his connection with it, may be

obtained. or made effectual for his conviction, without using

his answers as direct admissions against him. For all practical

purposes, such disclosures would have the effect to furnish

evidence against the party making them. They might furnish

the only means of discovering the names of those who could

give evidence concerning the transaction, the instrument by

which a crime was perpetrated. or even the corpus delict/ itself.

“Roth the reason upon which the rule is founded, and the terms

in which it is expressed, forbid that it should be limited to con-

fessions of guilt. or statements which may be proved. in subse-

quent. prosecutions, as admissions of facts sought to be estab-

lished therein.”

—_ ee.

Ziv aT eye a |

Pee ee ee eS ae aT

pe ee ee eee

After reviewing these cases, Mr. Justice Blatchford

wrote (142 U.S. at 584-585) :

But, as the manifest purpose of the consti-

tutional provisions, both of the States and

of the United States, is to prohibit the com-

pelling of testimony of a self-criminating kind

from a party or a witness, the liberal construc-

tion which must be placed upon constitutional

provisions for the protection of personal rights

would seem to require that the constitutional

guaranties, however differently worded, should

have as far as possible the same interpreta-

tion; and that where the constitution, as in the

cases of Massachusetts and New Hampshire,

declares that the subject shall not be “com-

pelled to accuse or furnish evidence against

himself,’? such a provision should not have a

different interpretation from that which be-

longs to constitutions like those of the United

States and of New York, which declare that

no person shall be ‘compelled in any eriminal

case to be a witness against himself.’’

Having thus announced the necessity for a rule

of uniformity,’

the opinion in Counselman states

(id. at 585):

Under the rulings above referred to, by

Chief Justice Marshall and by this court, and

those in Massachusetts, New Hampshire, and

Virginia, the judgment of the Cireuit Court

in the present case cannot be sustained. It is

a reasonable construction, we think, of the

* Since the self-incrimination clause of the Fifth Amendment

was not then binding on the states, it is difficult to understand

this reliance upon a desire for uniformity.

“esis

constitutional provision, that the witness is

protected ‘‘from being compelled to disclose

the circumstances of his offence, the sources

from which, or the means by which, evidence

of its commission, or of his connection with it,

may be obtained, or made effectual for his con-

nection, without using his answers as direct

admissions against him.” Emery’s Case, 107

Mass. 172, 182.

This reasoning would be open to serious question

even in a traditional Fifth Amendment context. The

holding of the state cases, and particularly Emery’s

Case, may he distinguished by the peculiar language

of the self-incrimination provisions there in issue.

Moreover, Boyd vy. United States, 116 U.S. 616,

which was the opinion ‘‘of this court’? to which the

opinion in Counselman referred, set out the since

discredited “mere evidence” rule and rested to a sub-

stantial degree on the notion that such evidence

could not even be obtained pursuant to a search war-

rant, which involves no compulsion on the individual

to speak. There is little in Boyd which survives today

to support the holding in Counselman v. H itchcock.”

The opinion of Chief Justice Marshall in United

States v. Burr, 25 Fed. Cas. 38, to which Counselman

also referred, stands only for the proposition that a

witness may not be compelled to give testimony which

% Boyd still stands as authority for the holding that the

privilege against self-incrimination may be asserted in response

to a subpoena to produce private books and records. But that

is because. by responding to a subpoena, the individual would

in effect be admitting that the documents are his. See

Schmerber v. California, 384 U.S. 757, 763-764.

4 acter cate sitet

is by itself sufficient to convict or which would form a

link” in the “chain of testimony which is necessary to

convict any individual of a crime” (id. at 40; emphasis

added). Counsel for the United States had argued in

Bury that “a witness can never refuse to answer any

question unless that answer, unconnected with other tes-

timony, would be sufficient to convict him of a crime.”

Rejecting that arguement, Chief Justice Marshall stated

(ibid.):

This would be rendering the rule almost perfectly

worthless. Many links frequently compose that

chain of testimony which is necessary to convict

any individual of a crime. It appears to the court

to be the true sense of the rule that no witness is

ecompellable to furnish any one of them against

himself. It is certainly not. only a possible but

a probable case that a witness, by disclosing :

single fact, may complete the testimony against

himself, and to eve¥y effectual purpose accuse

himself as entirely as he would by stating every

civcumstance which would be required for his

conviction. That fact of itself might be unavail-

ing, but all other facts without it would be insufii-

cient. While that remains concealed within his

own bosom he is safe; but draw it from thence,

and he is exposed to a prosecution. The rule which

declares that no man is compellable to accuse him-

self would most obviously be infringed by com-

pelling a witness to disclose a fact of this deserip-

thon.

Sinee, at the time of Chief Justice Marshall's ruling,

there was no statute on the books conferring immunity

from subsequent admission in evidence against the wit-

—

ness of the testimony itself, this statement cannot be

read to provide support for the broader holding in Coun-

selman that even if the statement is not admitted at all,

the witness is privileged to refuse to answer a question

if his responses might lead to other evidence.

Under these circumstances, it is not surprising that

Counselman has been severely criticized as an aberra-

tion occasioned by peculiar phrases in state con-

stitutions and not compelled by the self-inerimination

clause itself (Corwin, The Supreme Court’s Construc-

tion of the Self-Incrimination Clause, 29 Mich. L. Rev.

1, 205-206 (1930) ), and that its holding that only trans-

actional immunity will suffice to overcome a claim of

privilege has been overruled. Kastigar v. United States,

406 U.S. 441.

While the rationale of Counselman is no longer strong

enough to support the holding,” a new line of authority

Rv 19

exemplified by Schmerber v. California, 384 U.S. 757,

18 We are not suggesting that no rational basis can be advanced

for the holding in Counse/man, simply that none really was in

that opinion. Certainly it is well within the legitimate province of

this Court to determine, upon a consideration of the values under-

lying the constitutional policy regarding compelled_self-inerim-

ination, that distaste for the “cruel trilemma” adyverted to in

Murphy v. Waterfront Commission, supra, is a consideration of

suflicient magnitude to outweigh the interest of society in making

limited (derivative) use of evidence thereby obtained. But such

a conclusion should be based on candid consideration of the con-

flicting values at stake in the inquiry. As previously discussed,

it does not appear to us that those values can properly be deemed

to dictate a conclusion that the privilege forbids derivative use

of statements obtained by informal custodial interrogation.

19 See also United States v. Dionisio, 410 U.S. 1; United States

vy. Mara, 410 U.S. 19; California v. Byers, 402 US. 424.

has evolved. Such cases permit the compulsory produc-

tion of evidence such as blood samples, fingerprints,

and voice exemplars in ‘‘an attempt to discover evidence

that might be used to prosecute him for a criminal of-

fense” (id. at 761).” There is a marked tension, to say the

least, between the rationale of Schmerber and its prog-

eny, and the holding of Counselman that the self-incrim-

ination clause is offended if an individual is *“com-

pelled” * to make statements in “an attempt to discover

evidence that might be used to prosecute him for a crim-

inal offense.” As Judge Friendly has written (Bench-

marks, supra, at 277) :

What is so difficult to reconcile from the

standpoint of an ordered society is the uncom-

promising rigidity concerning what can be

taken froma man’s mouth in the form of speech

with this commonsensible view concerning what

can be taken from it in the form of saliva.

We hasten to reemphasize that there is no occasion

in this. case to reconsider the holding in Counselman,

because the facts here are plainly distinguishable. We

have treated the issue at some length only to demon-

strate that, whatever vitality the holding still retains,

it should not be extended.

2° See also California v. Byers, 402 U.S. 424, where, in sustaining

the constitutionality of a “hit and run” accident. report statute

against a Fifth Amendment challenge, Chief Justice Burger stated

(402 U.S. at 434) :

“Although identity, when made known, may lead to inquiry

that in turn leads to arrest and charge, those dev relopments depend

on different factors and independent evidence.”

71In using the word “compelled” we emphasize that we are

not referring to compulsion by techniques of physical or psycho-

logical coercion which would violate the due process requirement.

EVEN IF THE SELF-INCRIMINATION CLAUSE PROTECTS

AGAINST CUSTODIAL INTERROGATION WHICH LEADS TO

OTHER EVIDENCE, THE FAILURE TO COMPLY WITH

MIRANDA SHOULD NOT COMPEL THE SUPPRESSION OF

SUCH EVIDENCE

1. In the preceding argument we have contended

that, in the context of informal custodial interroga-

tion, the privilege against self-incrimination is not a

bar to interrogation which elicits statements that lead

to other evidence, provided the statements themselves

are not admitted at the trial of the accused. If we are

wrong in our analysis of the scope of the self-incrim-

ination clause, and if our submission regarding the

extension of Counselman to informal custodial inter-

rogation is rejected, it does not follow that the ex-

clusionary principle applied in Miranda to the state-

ments themselves must be applied equally to deriva-

tive evidence discovered through investigation of

statements taken without full compliance with

Miranda, Our submission is based on our understand-

ing of the scope of the holding of Miranda and the

purpose of the four-fold warning.

We do not believe that the Court intended the re-

quirements enunciated in Miranda to be considered

indispensable constituents of the privilege against

self-incrimination itself. Rather, this Court simply set

new standards governing the admissibility of state-

ments made by accused persons during custodial in-

terrogation. Without abandoning the premise that a

statement voluntarily made is admissible at trial, the

Court instituted a presumption of involuntariness

where the suspect makes a statement without first

having been fully advised of his right to counsel and

his right to remain silent. The critical concern of the

Court was the dangers inherent in *‘incommunicado”

interrogation. 384 U.S. at 445. Upon exhaustive

analysis .of commonly employed investigatory tech-

niques, it found that, despite all official efforts at

reform, sophisticated police practices, primarily psy-

chological in nature, were still being employed to ex-

tract confessions. Id. at 445-454.

Moreover, in discussing confessions obtained in in-

~ communicado, police-dominated atmospheres, — the

Court pointedly noted: ‘‘In these cases, we might not

find the defendants’ statements to have been involun-

tary in traditional terms. Our concern for adequate

safeguards to protect precious Fifth Amendmen

rights is, of course, not lessened in the slightest. In

each of the cases, the defendant “was thrust into an

unfamiliar atmosphere and run through menacing

police interrogation procedures. The potentiality for

compulsion is forcefully apparent * * *”’ (id. at 457).

As the Court thereafter phrased it in Johnson Vv.

New Jersey, supra, 384 U.S. at 729-730:

Our opinion in Miranda makes it clear that the

prime purpose of these rulings is to guarantee

full effectuation of the privilege against self-

incrimination, the mainstay of our adversary

system of criminal justice. * * * They are de-

signed in part to assure that the person who re-

sponds to interrogation while in custody does so

with intelligent understanding of his right to

remain silent and of the consequences which

may flow from relinquishing it. In this respect

the rulings secure scrupulous observance of the

traditional principle, often quoted but rarely

heeded to the full degree, that ‘‘the law will not

suffer a prisoner to be made the deluded in-

strument of his own conviction.” Thus while

Escobedo and Miranda guard against the pos-

sibility of unreliable statements in every in-

stance of in-custody interrogation, they encom-

pass situations in which the danger is not neces-

sarily as great as when the accused is subjected

to overt and obvious coercion.

Of course, as we have previously shown, where evi-

dence sought to be suppressed is not the confession

or statement but other evidence obtained as a result,

there is no danger that the defendant will be convicted

on the basis of his own suspect confession.

Equally significant to our present argument is: the

implicit recognition of the Court that not every state-

ment obtained without the Miranda warnings suffers

from such a defect or can reasonably be said to have

been in fact compelled in violation of the self-inerimi-

nation clause. An absolute rule mandating the exclu-

sion of statements obtained without the warnings was

deemed necessary because of the apparent practical

difficulties in determining whether, in a given case, the

self-incrimination clause has been violated.”

*2 As respondent observes (Br. 30) :

“The system which has developed operates in secret, without

courtroom safeguards or a record being made, and with judi-

cial review highly limited. Even when conducted without overt

pressure, the balance in interrogation is weighted heavily in

favor of the interrogator.”

See also Miranda v. Arizona, supra, 384 U.S. at 445:

“The difficulty in depicting what transpires at such interroga-

tions stems from the fact that in this country they have largely

taken place incommunicado.”

As an exclusionary rule designed to compel com-

pliance with a pragmatic procedural rule not itself

mandated by the Constitution but rather intended to

assure that the self-incrimination. clause is not vio-

lated, the Miranda exclusionary rule is significantly

different from other exclusionary rules designed to

deter conduct ‘‘which always violate[s] the Constitu-

tion.” People v. Varnum, supra 427 P.2d at 776

(Traynor, J.).

Under ‘these circumstances—given the absence of

any concern regarding the credibility of “self-depreca-

tory statements” and the fact that it is at best specu-

lative whether the statement made by respondent was

in fact taken in violation of his privilege against com-

pelled self-incrimination—respondent has failed to

overcome the burden of justifying the exclusion of

highly relevant evidence, not consisting of statements

obtained from his lips, which establishes his com-

plicity in a brutal crime. As Mr. Justice Frankfurter

observed in Nardone v. United States, 308 U.S. 338,

340, ‘‘[a]ny claim for the exclusion of evidence logi-

cally relevant in criminal prosecutions is heavily

handicapped. It must be justified by an over-riding

public policy expressed in the Constitution or the law .

of the land.” No such justification has been demion-

strated here.

2. These considerations aside, we note that, even

where an exclusionary rule is otherwise justified, such

a rule is generally “restricted to those areas where its

remedial objectives are thought most efficaciously

served.” United States v. Calandra, No. 73-734, de-

cided January 8, 1974, slip op: p. 10. This determina-

tion necessarily involves a “balancing process” in

which the likelihood of deterrence is weighed against

the damage done to our system of justice by the exclu-

sion of relevant evidence (ibid.).

It seems reasonably clear, based on empirical evi-

dence, that the extension of the exclusionary rule to the

fruits of a statement taken without compliance with

Miranda is not likely to undermine the deterrent ef-

fect of the exclusionary rule. If studies which have

shown that the giving of Miranda warnings has had

little effect on the decisions of most criminal defend-

ants to speak are correct, it is unlikely that law en-

forcement officers will risk losing the use of a full con-

fession in the speculative hope of obtaining derivative

evidence (which they will still have to connect to the

defendant by evidence independent of his statement) .*

** Note, /nterrogations in New Haven: The Impact of Mi-

randa, 76 Yale L. J. 1519 (1967); Griffiths & Ayres, A Post-

script to the Miranda Project: Interrogation of Draft Pro-

testers, 77 Yale L. J. 300 (1967); Seeburger & Wettick, Mi-

randa in Pittsburgh—A Statistical Study, 29 U. Pitt. L. Rev. 1

(1967); Medalie, Zeitz & Alexander, Custodial Police Inter-

rogation in Our Nation’s Capital: The Attempt to Implement

Miranda, 66 Mich. L. Rev. 1347 (1968); Driver, Confessions

and the Social Psychology of Coercion, 82 Harv. L. Rev. 42

(1968).

*There is one type of situation where such interrogation

would be worth the risk, and that is where there is a paramount

interest in interrupting an ongoing, serious criminal activity—

for example where one of several kidnappers is apprehended

and asked for the location of the place where the victim is held.

In that situation, we respectfully question the policy of deter-

ring interrogation which is not otherwise offensive. And if we

accept the notion that such interrogation is not constitutionally

foreclosed, it would seem strange to hold that, after such a sus-

pect disclosed the hiding place, the victim could not identify

Indeed, the cases in which the Miranda warnings are

not fully given usually involve interrogation under

circumstances where it is uncertain that the warnings

are required (United States v. Castellana, C.A. 5, No.

73-2259, decided January 17, 1974) or where law en-

forcement officers are simply careless in administer-

ing all of the warnings (United States v. Carneglia,

468 F.2d 1084 (C.A. 2)), or in cases such as the in-

stant case, where the interrogation took place prior to

Miranda. Manifestly, in such cases, an exclusionary

rule applicable to ‘‘fruits” can have little if any deter-

rent value.

Under these circumstances, it is respectfully sub-

mitted there is no justification for extending the ex-

clusionary rule to fruits of statements obtained with-

out full compliance with Miranda’s procedural rules.

3. The foregoing discussion has been directed to

“fruits” generally, without distinguishing between in-

animate derivative evidence and live witnesses. What

we have said above regarding the likelihood that law

enforcement officers would risk losing a full con-

fession in hope of obtaining tangible evidence applies

with even greater force when the “‘fruit’’ is a live

witness, for in such a situation there is no guarantee

that, even if the witness has relevant information, he

will willingly make full or truthful disclosure. As

Chief Justice (then Judge) Burger has observed:

[T]}he living witness is an individual human

personality whose attributes of will, perception,

him as one of the kidnappers, or that his fingerprints found at

that location could not be introduced in evidence. Yet this is the

import of the holding below.

memory and volition interact to determine what

testimony he will give. The uniqueness of this

human process distinguishes the evidentiary

character of a witness from the relative im-

mutability of inanimate evidence. [Smith v.

United States, 324 F.2d 879, 881-882

(C.A.D.C.), certiorari denied, 377 U.S. 954.]

Moreover, where the “derivative evidence” is a live

witness, it becomes more difficult to say with any cer-

tainty that the witness would not have been discovered

“put for’ the allegedly improper conduct—t.e., that

his testimony is in fact “derived” from the im-

properly obtained statement. Accordingly, some courts

of appeals have adopted a case by case approach. As

Chief Judge Bazelon wrote in Smith v. United States,

344 F.2d 545, 547 (C.A.D.C.), quoting McLindon v.

United States, 329 F. 2d 238, 241, n. 2 (C.A.D.C.) :

“In each case the court must determine how

great a part the particular manifestation of ‘in-

dividual human personality’ played in the ulti-

mate receipt of the testimony in question. In-

dications in the record that mere knowledge of

the witness’ identity would not inevitably guar-

antee that his testimony would be favorable to

the prosecution; that the witness might even-

tually have voluntarily gone to the police even

without their knowing his identity; that his tes-

timony has remained unchanged from the start—

all are relevant factors to be considered in de-

termining the final outcome.”

"While it may be possible. in some eases. * conclude

with assurance that such a witness would or would not

have come forward or been discovered without the de-

fendant’s statement, or that the taint has or has not

been attenuated, we submit that, at least where, as

here, the improper conduct did not itself violate the

Constitution, and where the application of an exclu-

siomary rule would not substantially affect the conduct

7 of Jaw enforcement officers, it is unnecessary to create

: yet another pre-trial “trial,” the outeome of which is

dependent on a difficult assessment of the motivation

: of a particular witness. See Harrison v. United States,

E 392 U.S. 219, 224-225." Such a witness should be per-

mitted to give his testimony at trial unless the conduct

which led to his discovery is offensive to due process

values, so that no possible dilution of the deterrent

efficacy of the exclusionary rule should be sanctioned.

4. We advocate no novel proposition. On the con-

trary, the position which we espouse is fully consonant

with established principles of the western legal tradi-

tion and of the common law. England, for example,

does not observe a rigid exclusionary rule with respect

to unlawfully obtained evidence, but generally admits

*3 In Harrison v. United States, 392 U.S. 219, 223, n. 9, a case

in which it was held that the testimony of the Fro debe at his

first trial was the fruit of an illegally obtained confession and

therefore could not be introduced at his retrial (the confession

was the product of interrogation undertaken after the defendant

should have been but was not promptly arraigned), the Court

specifically held: “We have no occasion in this case to canvass

the complex and varied problems that arise when the trial testi-

mony of a witness other than the accused is challenged as ‘the

evidentiary product of the poisoned tree.’ ”

We hasten to add that there is no occasion “to canvass the

complex and varied problems” that would be posed by this ques-

tion in a pure Fifth Amendment case. Compare McMann v.

Richardson, 397 U.S. 759. For that is not the issue here. What

is here involved is the implementation of the underlying purpose

of the Amendment by mandatory warnings that this Court

found necessary to adopt in Miranda.

all reliable, relevant evidence, however obtained, sub-

ject té*the discretion of the trial judge to exclude evi-

dence gathered in a manner thought to be “‘unfair’’ to

the defendant, as, for example, by trick. Kuruma v.

The Queen, [1955] A.C. 197, 203-204 (P.C.), [1955]

1 All Eng. Rep. 236 (Kenya).

With respect to statements of a defendant, the tra-

ditional standard of admissibility in British courts is

trustworthiness. Consequently, a confession induced

by promises or threats is always inadmissible on the

theory that an involuntary confession is unreliable. 2

East, Pleas of the Crown 657-658 (1803). Moreover, un-

der modern practice, judges have discretion on grounds

of fairness and prejudice to exclude any statement made

by a defendant when he has not been advised of his

rights during a police interrogation. Gotlieb, Con-

firmation by Subsequent Facts, 72 L. Q. Rev. 209, 223-

224 (1956); Archbold, Criminal Pleading, Evidence

and Practice, § 1388 et seq. (38th ed.), and cases there

cited.” However—and this is crucial—the English ex-

clusionary rule is never extended to render inadmis-

sible the fruits of statements unlawfully obtained.

It has long been held that, even where a confession is

plainly inadmissible, “anything that confession led to

may be given in evidence.” The Queen v. Leatham, 8

Cox Crim. Cas. 498, 503 (Q.B.) (1861) (Crompton, J.).

*The English procedural rules for custodial interrogation,

known as the “Judges’ Rules,” were cited with approval in

Miranda, supra, 384 U.S. at 486-488. Referring to these rules, the

Court stated in part (id. at 488, n. 57) : “[D]espite the fact [that]

some discretion as to admissibility is invested in the trial judge,

the Rules are a significant influence in the English criminal law

enforcement system.” -

In the early case of The King v. Warickshall, |

Leach 263, 168 Eng. Rep. 234 (1783), the defend-

ant had made an inadmissible statement revealing

where she had hidden certain stolen property and the

property was found at the location so disclosed. The

court rejected the defendant’s contention that proof

of that discovery should not have been gi¥en, holding

that subsequent acts done in consequence of an inad-

missible confession could properly be proved at trial.

' A similar result was reached in The King v. Lock-

hart, 1 Leach 386, 168 Eng. Rep. 295 (1785). There,

the defendant acknowledged under interrogation that

he had stolen the property in question and stated

that he had disposed of it to one Grant. At trial, the

defendant asserted that, since his own statement could

not be received in evidence, Grant’s testimony was

similarly incompetent. The court held: “‘[A ]Ithough

a confession improperly obtained cannot be given in

evidence, yet it can never go to the rejection of the

evidence of other witnesses, which are got at in

consequence of such a confession” (1 Leach at 387).

A recent statement of this rule is to be found in

Commissioners of Customs and Excise v. Harz, [1967]

A.C. 760, [1967] 1 All Eng. Rep. 177. There, the

defendant was charged in a eriminal case‘ with the

evasion of a purchase tax: During. the course of the

investigation, the defendant was advised erroneously

that if he did not respond to questions ‘put to him, he

would be prosecuted for ‘his failure to’ dq’ so. The

admissions so elicited were introduced at his trial. The

House of Lords held that a conviction obtained as a

result of these admissions could not be upheld, since

the statutory power of compulsion did not extend to

these statements. Lord Reid said: “The appellants’

first argument was that relevant evidence is always

admissible, even where the prosecution obtained it by

illegal means. There is authority to that effect where

the evidence is real evidence—some object like a blood-

stained knife which was only discovered because the

accused was compelled by illegal means to say where

it was hidden. But that has no application to confes-

sions which for some three centuries have been held

to be inadmissible unless they are free and voluntary”’

({1967] A.C. at 817).

There is no indication of a present English trend

to exclude evidence derived from inadmissible state-

ments. On the contrary, there appears to be some

pressure to admit even improperly obtained state-

ments, if they are corroborated as a whole or in part

by subsequently discovered facts. See Gotlieb, supra,

72 L.Q. Rev. at 209-210. The most recent case on the

subject holds that reliability is the primary standard

of admissibility, and that English law therefore per-

mits the admission in evidence of information supplied

by the defendant, if that information has led to the dis-

covery of a relevant fact. Consequently, the derivative

evidence is admissible, along with any part of the

defendant’s statement which it corroborates. The

534-752—_74——6

(ie Sasa ogee sine git te A Geen

RPM oye

Queen v. Ramasamy, [1965] A.C. 1, 12-15 (P.C.)

(Ceylon).”

The key theme to be gleaned from these cases is

that they renounce the ‘‘fruits’’ doctrine as an inex-

orable consequence of the rule excluding illegally ob-

tained confessions or statements. We advocate no

more when we urge that consideration of neither

logic, history nor policy require any different rule

where leads are obtained as a result of interrogations

which may be voluntary but are nonetheless not con-

ducted in full compliance with Miranda. ‘

5. The analysis we urge here on constitutional

and policy grounds is not foreclosed by the hold-

ing in Miranda. Although the opinion in Miranda

expressly dealt with almost every aspect of the issues

raised by statements made during informal custodial

interrogation—including such matters as the admissi-

bility of exculpatory statements (384 U.S. at 477)

and the admissibility of ‘‘cireumstantial evidence” to

show that the defendant was aware of rights even

though not expressly advised, of them (td. at 471-

472)—it did not allude to the fruit of the poisonous

2*The Scottish and Irish courts follow exclusionary rules

somewhat similar to the English rule, but those jurisdictions.

like the United States, also recognize deterrence, as well as

reliability, as a factor to be considered in adjudging the ad-

missibility of evidence. See Lawrie v. Muir, 1950 Scots L.T.R.

37, 40. Accordingly, various tests are considered in determining

the use of improperly obtained evidence, among them whether

the irregularity was merely technical or constituted a serious

invasion of the defendant's rights. See, e.g., H. M. Advocate v.

Turnbull, 1951 Scots L.T.R. 409; People v. O’Brien, [1965] Ir.

* R. 142; Heydon, Jilegally Obtained Evidence (1), 1973 Crim.

L. Rey. 603, 608.

ELT EER ES Dien RRR ERTS ROE UNS rn PERU a ~ —

REO RRND AREY

tree doctrine. On the contrary, the Court made clear

in the opening paragraph of its opinion that it was

“deal[ing] with the admissibility of statements ob-

tained from an individual who is subjected to custo-

dial police interrogation * **” (id. at 4439; emphasis

added. )**

Later guidelines offered by this Court, moreover, sup-

port our submission that the Miranda exclusionary rule

is not absolute and all-embracing. In Harris v. New

York, 401 U.S. 222, 224, the Court expressly cautioned

that Miranda must not be read over-broadly to bar all

uses of uncounseled statements, but that only the por-

tions of the majority opinion necessary to the result are

to be regarded as controlling.

*It is true that the J/‘randa majority stated, “unless and

until * * * warnings and waiver are demonstrated by the

prosecution at trial, no evidence obtained as a result of inter-

rogation can be used against [the defendant]” (384 U.S. at

479; emphasis added). Two of the dissenters evidently

feared the application of the “fruit of the poisonous tree”

doctrine to Miranda violations. See 384 U.S. at 500 (Clark, J.) ;

ef. 384 U.S. at 545 (White, J.). However, even if the quoted

phrase in the majority opinion was intended to refer to deriva-

tive evidence, the statement must be considered dictum, since

none of the Miranda cases involved the use of “fruits”. of un-

lawfully obtained statements.

There has, moreover, been doubt among legal scholars that

the Court. could have intended in one casual sentence to dis-

pose of the complex question“of the scope of the exclusionary

rule devised in the Miranda decision. Judge Friendly reads

“evidence obtained as a result” to mean the Statements made

during an unlawful interrogation, rather than evidence derived

from leads developed during a period of improper questioning.

Friendly, Benchmarks, supra, at 279. See also George, /nterro-

gation of Criminal Defendants—Some Views on Miranda v.

Arizona, 35 Fordham I. Rev. 169, 193 (1966).

“a4

As the Court pertinently stated in Harris (td. at 224):

- Some comments in the Mtranda opinion can in-

deed be read as indicating a bar to use of an un-

counseled statement for any purpose, but diseus-

sion of that issue was not at all necessary to the

Court’s holding and cannot be regarded as con-

trolling. Miranda barred the prosecution from

making its case with statetyents of an accused

made while in custody prior to having or effec-

tively waiving counsel. It doesnot follow from

Miranda that evidence inadmissible against an

accused in the prosecution’s case in chief is barred

for all purposes, provided of course that the trust-

worthiness of the evidence satisfies legal stand-

ards.

So here, there is no reason to question the truthworthi-

ness of the testimony of the man respondent hoped

would supply an alibi, who in any event was subject

to full cross-examination at trial. See Dutton v. Evans,

400 U.S. 74; California v. Green, 399 U.S. 149; Davis v.

Alaska, No. 72-5794, decided February 27, 1974.”

2° We do not contend that the fruits of illegally obtained state-

ments should never be excluded. When the Miranda violation

consists of deliberate and flagrant abuse of the accused's con-

stitutional rights, amounting to a denial of due process, appli-

cation of the exclusionary principle would appear warranted. See

Friendly, Benchmarks, supra, at 260-261, 282. However, where, as

here, the Miranda violation is merely a technical one and no actual

constitutional violation is alleged or proved by the defendant, ex-

clusion of the statement alone is sufficient to serve the purposes of

deterring illegal conduct and ensuring the trustworthiness of evi-

dence for which the Miranda exclusionary rule was fashioned.

CONCLUSION

The judgment of the court of appeals should there-

fore be reversed.

Respectfully submitted.

Rosert H. Bork,

Solicitor General.

Henry E. PETERSEN,

Assistant Attorney General.

ANDREW L. FREy,

Deputy Solicitor General.

Epwarp R. KorRMAN,

‘Assistant to the Solicitor General.

JEROME M. Fert,

_ JupirH A. METZNER,

Attorneys.

Marcu 1974.

U.S, COVERRMERT PRIETING OFFICE: 1974

‘MOTION

408 Michigan Bldg.

220 Bagley Avenue .

Detroit, Mich.48226

(313) 965-4005

No. 73-482

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER TERM, 1973

Srate or Micuican,

Petitioner,

Tuomas W. Tucker,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Sixth Circuit

MOTION OF WOMEN LAWYERS ASSOCIATION OF

MICHIGAN FOR LEAVE TO FILE BRIEF AMICUS

CURIAE IN SUPPORT OF RESPONDENT

Now comes the Women Lawyers Association of Mich-

igan, by and through its attorneys Kathleen Copeland and

Clarice Jobes, and moves this Honorable Court for an

Order granting leave to submit a brief amicus curiae in

support of Respondent in the above-captioned cause for

the following reasons:

1. The Women Lawyers Association of Michigan is

an unincorporated voluntary association of women attor-

neys licensed to practice in the State of Michigan. The

Association is the sole association of women lawyers in

Michigan and was founded in 1919. Its objects include

advancing the interests of women members of the legal

profession as well as advancing the position of women in

general as they are affected by the law.

2. The Association has a special interest in the subject

matter of the case at bar in that the brunt of protecting

the legal rights of women, including women victims of

crime, increasingly falls upon women attorneys. (or.

relatively, the Association has an equal interest in protect-

ing and preserving the existing constitutional rights of

all criminal defendants.

3. The defendant in this cause was charged with the

crime of rape, an offense which is perpetrated on women,

and with which the Association has great concern. Be-

cause of the brutality of the offense in this case, the

Association seeks leave to submit a brief amicus curiae,

believing that dispassionate review of the record is of

supreme importance, as did Mr. Justice Clark in Gallegos

v. Colorado, 370 US 49, 55, 83 S Ct 1209 (1962), when

he quoted Chief Justice John Marshall:

‘*TiJf courts were permitted to indulge their sympa-

thies, a case better calculated to excite them can

scarcely be imagined.’’

4. The Association has a strong interest in seeing that

the protection of women victims of crime is not accom-

plished by depriving criminal defendants of constitutional

guarantees. It believes that the guarantees set forth in

Miranda v. Arizona, 384 US 436, 86 S Ct 1602 (1966), must

continue to be applied to all criminal defendants equally,

regardless of the nature of the crime they have committed.

The Association concurs with Mr. Justice Harlan who

has said:

‘We do not release a criminal from jail because we

like to do so, or because we think it wise to do s0,

but only because the government has offended con-

stitutional principle in the conduct of his case.’’

Desist v. United States, 394 US 244, 258, 89 S Ct

1030 (1968).

5. If such leave is granted, the Association joins with

and adopts by reference the Brief of Civil Liberties Com-

mittee, State Bar of Michigan as Amici Curiae in Support

of the Respondent.

WHEREFORE, the Women Lawyers Association of

Michigan prays this Court:

A. Issue an Order Granting Leave to Submit a Brief

Amicus Curiae in the above captioned cause.

B. Adopt by reference the Brief of Civil Liberties

Committee, State Bar of Michigan as Amici Curiae

brief of the Women Lawyers Association of Michigan

in Support of the Respondent.

Respectfully Submitted,

(s) Kathleen Copeland

(s) Clarice Jobes

Co-counsel, Women Lawyers

Association of Michigan

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.