# Amicus Curiae Brief — Michigan v. Tucker > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0306%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1974 - **Citation:** 417 U.S. 433 ## 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 _-_.........--- 1. 5. The “cruel trilemma’’.__...____- 2. Inhumane treatment ----_---_-_-.- 3. 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........__- 20 23 31 45 —s..<- ee Tee Pe II 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..-.--.--------. oO 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 v. 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 2 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 3 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 4 -~ 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 5 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 6 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 — 7 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 —_—_—_—_—_——— 8 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 9 ARGUMENT I 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 10 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 4 4 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 = | we + 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 12 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, 13 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 14 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 ——— 15 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 16 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 17 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) a 18 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 19 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. 20 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 —_ 21 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 22 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 — 23 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 24 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 — 25 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.” 3 —_ ee. Ziv aT eye a | Pee ee ee eS ae aT ee pe ee ee eee 26 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,’ 6 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 27 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 28 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, 29 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. 30 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. 31 II 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 32 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 33 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.” ~ 34 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- 35 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 : 36 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. 37 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 a 38 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. 39 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.” - 40 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 Al 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 42 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 43 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. fr *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. 45 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. 7 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0306%3A09. Public record. Not legal advice.