Repealing Miranda?: Background of the Controversy over Pretrial Interrogation and Self-Incrimination

Order Code 97-645 A

CRS Report for Congress

Received through the CRS Web

Repealing Miranda?: Background of the

Controversy over Pretrial Interrogation

and Self-Incrimination

Updated July 20, 2004

Paul S. Wallace, Jr.

Specialist in American Public Law

American Law Division

Congressional Research Service ˜ The Library of Congress

Repealing Miranda?: Background of the Controversy

over Pretrial Interrogation and Self-Incrimination

Summary

Although an involuntary confession has been inadmissible in federal cases since

the nineteenth century, the Supreme Court did not denounce physically coercive

abuses in State cases until its decision in Brown v. Mississippi. The Brown case

established the basis for the Fourteenth Amendment “voluntariness” standard as the

due process test for assessing the admissibility of confessions in State cases. Under

this standard, the admissibility of a confession was evaluated on a case by case basis

which would be governed by the “totality of the circumstances,” which included the

facts of the case, the background of the accused, and the behavior of the police during

the interrogation.

In Miranda v. Arizona, the Court established several procedures to safeguard the

Fifth Amendment rights of persons during custodial interrogations. The Court

reasoned that the suspects needed the safeguards because “[t]he circumstances

surrounding in-custody interrogation can operate very quickly to overbear the will of

[the suspect...” and without them no statement can be considered the product of

his/her free will.

Miranda was controversial among policy-makers and academics who debated

its legitimacy and desirability over thirty years after its judicial creation. One of the

major arguments offered for overruling Miranda was that it had caused great

difficulty to law enforcement efforts in controlling crime. The ruling in Dickerson

v. United States, 530 U.S. 428 (2000), struck down 18 U.S.C. 3501, a federal law that

allowed confessions elicited without a police advisory to be used at trial as long as

the “totality of circumstances” demonstrated that they were given voluntarily.

Dickerson made Miranda's constitutional status clear. The Miranda decisions

announced during the Court's 2003-2004 term, however, suggest that continued

vitality of seemingly conficting pre-Dickerson caselaw is less clear. United States

v. Patane, divided the Court so that no single rationale united a majority of its

members, although five Justices joined in a plurality decision that declined to

overrule its pre-Dickerson decisions concerning the admissibility of physical derivate

evidence. On the other hand, Missouri v. Seibert likewise resulted in a plurality

opinion, but in spite of contrary suggestions in the pre-Dickerson caselaw five

Justices found inadmissible a confession intentionally wrung from the defendant

before Miranda warnings and re-elicited thereafter. Five Justices did agree in

Yarborough v. Alvarado that the state courts did not unreasonably apply federal law

when -- without considering the inexperienced suspect's age (17 years old) -- they

determined that Miranda's custodial threshold had not been crossed. And they all

agreed in Fellers v. United States, that the lower courts should not have addressed

Miranda/Dickerson implications raised out of an interrogation that offended Sixth

Amendment requirements.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Historical Overview and Case Law of Pretrial Interrogation Prior to Miranda . . . 1

Due Process Prior to Miranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The Precursor to Miranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

McNabb/Mallory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Application to States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Warnings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

The Right to Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Adverse Implication from Silence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A Right Not To Be Questioned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The Miranda Decision and Other Developments . . . . . . . . . . . . . . . . . . . . . . . . . 10

Case Law Developments after Miranda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

1. The Right To Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2. The Miranda Rules (Non-Constitutional Status) . . . . . . . . . . . . . 20

3. Pretrial Silence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Overcoming the McNabb/Mallory Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

The Suspension in Implementation of Section 3501 . . . . . . . . . . . . . . . . . . . . . . 26

After Dickerson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Repealing Miranda?: Background of the

Controversy over Pretrial Interrogation

and Self-Incrimination

Introduction

During the 105th Congress, the proposed “Omnibus Crime Control Act of

1997” contained provisions designed to overrule Miranda. This is a review of the

controversy sparked by this as well as other proposals governing the use of a

defendant’s confession against him at his criminal trial.

This report reviews the development of the law regarding pretrial interrogation

and self-incrimination from the late nineteenth century to the time of the Miranda

decision and the period covering the aftermath. The topics covered include an

historical overview of the case law of pretrial interrogation prior to Miranda, that

barred use of a confession during a defendant’s criminal trial if he had not been given

certain warnings before confessing; the Miranda decision and related Supreme Court

cases; the McNabb/Mallory rule, that barred certain confessions made while the

defendant was being illegally held in custody; 18 U.S.C. § 3501, that addressed the

issues raised by Miranda and the McNabb/Mallory rule; proposals to replace

Miranda with a further amended version section 3501; and the Court’s decision in

Dickerson, which appears to have left the Miranda rule stronger than at any time in

its controversial history.

Historical Overview and Case Law of Pretrial

Interrogation Prior to Miranda

In spite of the Fifth Amendment’s limitation on the use of coerced confessions,1

the Supreme Court’s early decisions on the admissibility of confessions in federal

courts relied upon the common law rule.2 In the 1897 case of Bram v. United States,3

1

The Fifth Amendment to the United States Constitution provides that “[n]o person ... shall

be compelled in any criminal case to be a witness against himself.”

2

Under the common law, confessions were admissible at trial without any restriction even

to the extent that an incriminating statement which had been obtained by torture was not

excluded. See 3 J. Wigmore, Evidence § 818(3) and § 822 n. 8 (Chadbourn rev. 1970).

3

168 U.S. 532 (1897) (Bram involved a triple murder on an American vessel on the high

seas. The first mate, Bram, was taken into custody and put in irons after being accused by

a crew member, Brown, who also came under suspicion. Bram was informed by the police

detective that Brown earlier had made a statement that he saw Bram commit the murders.

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the Court attempted to define the Fifth Amendment concept of voluntariness and to

base exclusion upon violation of the privilege against self-incrimination, but the

Court in a subsequent decision appeared to withdraw from that viewpoint.4

Nonetheless, the Bram “voluntariness” approach was affirmed in Zhang Sung Wan

v. United States,5 and it influenced the Court to state the rule of exclusion more

broadly, so that it was not merely a matter of whether the confession was reliable or

whether a forbidden inducement had been used, but rather whether the confession

“was in fact, voluntarily made.”6 According to this doctrine, confessions were

admitted only if they had been given voluntarily; confessions were excluded if the

suspect’s will was subject to police duress.

Due Process Prior to Miranda

It was not until Brown v. Mississippi7 that the Supreme Court applied the due

process standard for use of a confession in State criminal proceedings. Prior to that

time, the Court had consistently held that the Fifth Amendment did not apply to the

states, and considered the admissibility of incriminating statements in state

proceedings as a issue of Fourteenth Amendment due process relative to those

standards regarding the conventional rule of evidence which prohibits involuntary

confessions.8 In Brown, three Black defendants were beaten by sheriff’s deputies

investigating the murder of a White male. The deputies hung one of the suspects

from a tree, let him up and down several times and then beat him twice (while tied

to a tree and subsequently on the roadside) until he confessed.9 The deputies arrested

the other two suspects, stripped and placed them over chairs, and then beat both

Bram replied, “He could not have seen me. Where was he?” “He states he was at the

wheel,” the detective said. “Well,” Bram replied, “he could not have seen me from there.”

Id. at 562. In holding Bram’s incriminating statement inadmissible, the Court reasoned that

“when the statement was made to him that the other suspected person had charged him with

the crime, the result was to produce upon his mind the fear that [,] it would be considered

an admission of guilt.” Id. Therefore, the Court believed that Bram’s statement was not

“wholly voluntary” because “the answer which he gave and which was required by the

situation was ... influenced by the force of hope or fear.” Id. at 562-63).

4

United States v. Cardigan, 342 U.S. 36, 72 (1951).

5

266 U.S. 1 (1924). The case concerned the admissibility of statements obtained from a

seriously ill suspect who had been detained and interrogated relentlessly until he finally

confessed to three murders. Id. at 11. Replying to the prosecution’s argument that the

incriminating statements were voluntary because there was no police coercion, the Court

held that “the requisite of voluntariness is not satisfied by establishing merely that the

confession was not induced by a promise or threat.” Id. at 14. Although the police did not

perform any overtly coercive action, the fact that they persistently questioned the suspect

while he was ill cast great doubt on whether his confession was made voluntarily.

6

Id. at 45.

7

297 U.S. 278 (1936). The Fifth Amendment privilege against self-incrimination was not

made binding on the States until 1964. Malloy v. Hogan, 378 U.S. 1, 8 (1964).

8

See Brown v. Mississippi, supra note 7; Chambers v. Florida, 309 U.S. 227 (1940).

9

Id. at 281.

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suspects with buckled leather straps until they confessed.10 Since the Fifth

Amendment privilege was then not deemed applicable to the states, the Court struck

down the confessions based on the theory that interrogation is part of the process by

which a state acquires a conviction and thus is subject to the requirements of the

Fourteenth Amendment due process clause.11 The Court unanimously reversed the

convictions of all three suspects, deciding that the police tactics violated the Due

Process Clause of Fourteenth Amendment.12

Having established in Brown that due process was violated when a conviction

rested exclusively upon a confession which was obtained in this manner, later cases

made it clear that the admission at trial of such a confession was unconstitutional.13

In Brown, the Court held that although a State might be able to do away with the

privilege against self incrimination completely, a State could not exact a confession

by torture.14 Subsequently, this was commonly referred to as the “Fourteenth

Amendment due process voluntariness test” requirement, and it was the standard

used by the Court in articulating the due process requisites for its admissibility.15

Under this standard, the admissibility of a confession was evaluated on a case by case

basis according to the “totality of the circumstances,”16 surrounding each confession.

Four years after Brown, the Court in Chambers v. Florida,17 reversed a State

conviction based on confessions obtained after five days of interrogation, during

which the suspects had no contact with their friends, advisers or counselors.18 The

Court went further than Brown and held that even where there was no physical

violence,19 continuous questioning and “other ingenious forms of entrapment of the

helpless” could constitute compulsion.20 Justice Black noted that it has been

suggested that the use of these coercive tactics “has lowered the esteem in which

10

Id. at 282.

11

Before the Miranda decision, the Court used the due process clause of the Fourteenth

Amendment (“No State shall deprive any person of life, liberty, or property, without due

process of law.”) to rule confessions involuntary. See Craig R. Johnson, Note, McNeill v.

Wisconsin: Blurring a Bright Line on Custodial Interrogation, 1992 Wis. L. Rev. 1643

(1992) (discussing the differences between the Fifth and Sixth Amendments).

12

Id. at 287.

13

Payne v. Arkansas, 356 U.S. 560 (1958).

14

Brown, 297 U.S. at 285-86.

15

E.g., Watts v. Indiana, 338 U.S. 49 (1949).

16

Haynes v. Washington, 373 U.S. 503 (1963).

17

309 U.S. 227 (1940).

18

Id. at 230-31.

19

Although there was a conflict regarding the issue of physical violence, the Court did not

resolve the issue and stated that its decision was not dependent upon it but was based upon

the fact that the confessions resulted from the application of compulsion. Id. at 238-39.

20

Id. at 237-39. The Court criticized the dragnet methods of taking the Black tenant farmers

into custody without warrants and noted that the Fourteenth Amendment provided protection

for those who belonged to helpless and unpopular groups. Id. at 238.

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[the] administration of justice is held by the public and has engendered an attitude of

hostility to unwillingness to cooperate with the police....”21

Two years later, in Ward v. Texas, where the defendant, an Afro-American,

under interrogation had been threatened with mob violence, taken by night and day

to strange towns in several counties, incarcerated in several jails, and by persistent

questioning, coerced to confess, the Supreme Court again ruled for reversal.22 In

these and other similar cases,23 where the convictions were reversed, the Court

indicated its concern for the integrity of the process used for extracting the confession

and noted that there was almost no evidence against the defendants. The Court

therefore relied on the Fourteenth Amendment to reverse the convictions of what it

believed were innocent men. The Court was also protecting minorities from brutality

which was being tolerated by the States.24

Between the time of Brown v. Mississippi25 and Miranda v. Arizona,26 the due

process standard was applied in dozens of cases. During these years, the Court

designated certain police practices which weighed the “totality of the circumstances”

against a finding of voluntariness and admissibility—including physical force, threats

of harm or punishment, lengthy periods of unlawful detention, solitary confinement,

denial of food or sleep, and promises of leniency—and therefore were

constitutionally impermissible.27 Typical characteristics of the accused that were also

taken into consideration included youth, lack of education or intelligence, member

of a racial minority group, poverty, and mental or intellectual disabilities.28

21

Id. at 240-41, n.15.

22

316 U.S. 547 (1942).

23

Canty v. Alabama, 309 U.S. 629 (1940); White v. Texas, 309 U.S. 631, reh’g denied, 310

U.S. 530 (1940); Vernon v. Alabama, 313 U.S. 547 (1941); Lomax v. Texas, 313 U. S. 544

(1941).

24

See, e.g., Brown v. Mississippi, supra note 7; Chambers v. Florida, supra note 8; Ward

v. Texas, 316 U.S. 547 (1942).

25

Supra note 7.

26

384 U.S. 436 (1966).

27

See, e.g., Townsend v. Sain, 372 U.S. 293 (1963); Gallegos v. Colorado, 370 U.S. 49

(1962); Rogers v. Richmond, 365 U.S. 534 (1961); Blackburn v. Alabama, 361 U.S. 199

(1960); Fikes v. Alabama, 352 U.S. 191 (1957); Stein v. New York, 346 U.S. 156 (1953);

Stroble v. California, 343 U.S. 181 (1952); Gallegos v. Nebraska, 342 U.S. 55 (1951);

Harris v. South Carolina, 338 U.S. 68 (1949); Haley v. Ohio, 332 U.S. 596 (1948); Lyons

v. Oklahoma, 322 U.S. 596 (1944); Lisenba v. California, 314 U.S. 219 (1941); Ward v.

Texas, 316 U.S. 547 (1942); Chambers v. Florida, 309 U.S. 227 (1940); Brown v.

Mississippi, 297 U.S. 278 (1936).

28

W. LaFave & J. Israel, Criminal Procedure § 6.2(c) (2d ed. 1992).

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The Precursor to Miranda

Miranda wove together threads from the case law regarding confessions

beginning in the late 1940's that provided the basis for significant changes in criminal

law investigations and adjudication up to the present time. These changes were

designed to impose, among other things, uniform federal standards upon the States

which up to that time had many variations in their pretrial procedures.29

McNabb/Mallory

Decisions in the area of police interrogations which had a distinct relationship,

as precursors, to Miranda are as follows:

McNabb v. United States30 involved the murder of a federal revenue agent

during a raid on an illegal still. Several Tennessee mountaineers with limited

education were arrested by federal agents between one and two o’clock in the

morning and were subjected intermittently to prolonged questioning over the next

several days, which resulted in confessions by three of them. The confessions were

admitted as voluntary and the defendants were convicted. The Court decided that it

was not necessary “...to reach the Constitutional issue pressed upon us”31 because the

case can be resolved by the “...exercise of its supervisory authority over the

administration of criminal justice in the federal courts....”32 Since the record left no

doubt that the questioning of the defendants did not take place before a judicial

officer in a timely fashion as required by procedures which Congress commanded,

the Court concluded that the convictions:

cannot be allowed to stand without making the courts themselves accomplices

in wilful disobedience of law. Congress has not explicitly forbidden the use of

evidence so procured. But to permit such evidence to be made the basis of a

conviction in the federal courts would stultify the policy which Congress has

enacted into law.33

Mallory v. United States34 involved a decision by a unanimous Court which held

that the confession was inadmissible because it was procured in violation of a

29

Although there is a constitutional right to counsel in federal cases since the adoption in

1791 of the Bill of Rights, this right was first incorporated into State proceedings through

the Fourteenth Amendment in capital offenses in 1932 (Powell v. Alabama, 287 U.S. 45

(1932)) and subsequently broadened in 1963 to include all felony cases (Gideon v.

Wainwright, 372 U.S. 335 (1963)).

30

318 U.S. 332 (1943).

31

Id. at 340.

32

Id. at 341.

33

Id. at 345.

34

354 U.S. 449 (1957).

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provision in the federal rules35 to the effect that an arrested person must be taken

before a committing magistrate “without unnecessary delay.”36 Mallory is significant

because it defined in detail what is considered “unnecessary delay”:

The police may not arrest upon mere suspicion but only on “probable cause.”

The next step in the proceeding is to arraign the arrested person before a judicial

officer as quickly as possible so that he may be advised of his rights and so that

the issue of probable cause may be promptly determined. The arrested person

may, of course, be “booked” by the police. But he is not to be taken to police

headquarters in order to carry out a process of inquiry that lends itself, even if

not so designed, to eliciting damaging statements to support the arrest and

ultimately his guilt. The duty enjoined upon arresting officers to arraign

“without unnecessary delay” indicates that the command does not call for

mechanical or automatic obedience. Circumstances may justify a brief delay

between arrest and arraignment, as for instance, where the story volunteered by

the accused is susceptible of quick verification through third parties. But the

delay must not be of a nature to give opportunity for the extraction of a

confession.37

****

In every case where the police resort to interrogation of an arrested person and

secure a confession, they may well claim, and quite sincerely, that they were

merely trying to check on the information given by him.38

Application to States

The Fifth Amendment to the Constitution guarantees the criminal suspect the

right against self-incrimination.39 In Malloy v. Hogan,40 the Court incorporated the

Fifth Amendment privilege against self-incrimination into the Fourteenth

Amendment, thereby requiring the State governments to recognize the constitutional

privilege against self-incrimination.41 The Court pointed out that the Fifth

Amendment privilege against self-incrimination demands that the accused be free “of

any improper influence” when he is considering whether to remain silent or make a

statement.42 The Court stated that under the Fifth Amendment test, “the

constitutional inquiry is not whether the conduct of state officers in obtaining the

confession was shocking, but whether the confession was ‘free and voluntary: that

35

Fed. R. Crim. P. 5(a) (Promulgated 1946; did not exist when McNabb v. United States was

decided).

36

Mallory, 354 U.S. at 452.

37

Id. at 454-55.

38

Id. at 455-56.

39

The Fifth Amendment provides that no person “... shall be compelled in any criminal case

to be a witness against himself ....”

40

378 U.S. 1 (1964).

41

Id. at 7.

42

Id. at 7-8.

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is, it must not be extracted by any sort of threats or violence, nor obtained by any

direct or implied promises, however slight, nor by the exertion of any improper

influence.’”43 The State and Federal governments were constitutionally compelled

to establish guilt by obtaining evidence from independent investigative work and not

by coerced confessions.44

Warnings

Before the 1960s, there do not appear to be any Federal or State rulings

advocating a requirement of warnings in police interrogations.45 Following the

decisions by the Court in two early cases (Wilson v. United States46 and Powers v.

United States)47, it was generally established that warnings were not required during

pretrial interrogations as a requirement for the admission of a defendant’s

statements.48 In the Wilson case, the Court held that the defendant’s statements

depended on their voluntariness, and since they were voluntarily made, the absence

of warnings and counsel would not warrant their exclusion.49 In the Powers case, the

Court reviewed again the warnings issue but in constitutional terms. At the

preliminary hearing, “... the defendant, without counsel and not having been

instructed by the commissioner, voluntarily, in his own behalf, testified ....”

Following this account by the defendant, the deputy marshal who was present during

the hearing asked if he had worked at a still at another time and place. At first, the

defendant refused to answer the question, but responded affirmatively after being

informed that unless he did so he would be committed to jail. The deputy marshal

recounted this admission at trial. The Court held that requiring the defendant to

respond to questions under the threat of contempt at the preliminary hearing did not

exceed the proper limits, since he had waived his Fifth Amendment right by

voluntarily testifying on his own behalf.50

The Right to Counsel

The Sixth Amendment to the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right ... to have [a]ssistance of

[c]ounsel for his defense.”51 Prior to 1960, it had been established that the

constitutional guarantee requires that in federal prosecutions the right of the

43

Id. at 7.

44

Id. at 8.

45

See McNabb v. United States, 318 U.S. 332, 345-46 (1943).

46

162 U.S. 613 (1896).

47

223 U.S. 303 (1912).

48

Miranda v. Arizona, 384 U.S. 436, 509 (“... by necessary implication in case after case,

the right to warnings [have] been explicitly rebuffed in this Court many years ago”, Harlan

J., dissenting citing Wilson and Powers).

49

162 U.S. at 623-24.

50

223 U.S. at 313-14.

51

U.S. Constitution Amendment VI.

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defendant to have counsel assigned by the court relates only to proceedings in court

and does not include preliminary proceedings before a committing magistrate.

However, in Hamilton v. Alabama,52 a 1961 capital case, the Court ruled that an

indigent defendant was entitled to appointed counsel at an arraignment where the

Alabama law viewed certain defenses, such as insanity, which if not raised at that

point as abandoned. Likewise, in White v. Maryland,53 a 1963 decision reversing a

murder conviction, the Sixth Amendment right was held to apply where the

defendant was asked to enter only a non-binding plea at the preliminary hearing, but

his non-binding plea of guilty, though later withdrawn, was still used against him at

trial. Subsequent to the Hamilton v. Alabama and White v. Maryland decisions,

which recognized the right to counsel in well defined situations in pretrial judicial

proceedings at the State level, the Court took a considerable step by extending the

Sixth Amendment right to counsel to solely non-judicial pretrial situations.54

In Massiah v. United States,55 Massiah was indicted for federal narcotics

violations, for which he retained counsel, pled not guilty and was released on bail.

The codefendant, who unknown to Massiah, was cooperating with the authorities

when he, with a radio transmitter in his car, invited Massiah to discuss the pending

case, and during their conversation in the car, Massiah’s admissions were overheard

by a federal agent, who testified with respect to the statements at Massiah’s trial. The

Court reversed Massiah’s conviction on the ground that obtaining information from

him in this manner violated his Sixth Amendment right to counsel. The central point

behind the decision was that statements obtained by federal agents from an indicted

defendant who has counsel are, as a matter of course, inadmissible against him if

obtained without counsel present.56 The decision is significant inasmuch as it is the

initial expansion of the right to counsel to police interrogations and investigations.

In Escobedo v. Illinois,57 five weeks after Massiah, Escobedo was taken into

custody and questioned concerning the fatal shooting of his brother-in-law, but his

attorney obtained his release. DiGerlando, who was already in police custody and

who was later indicted for the murder along with Escobedo, told police that Escobedo

had fired the fatal shots, so Escobedo was again arrested. In the course of

questioning, Escobedo’s repeatedly requested to consult with his attorney, who had

come to the police station but was barred from seeing him. After the police arranged

a confrontation between DiGerlando and Escobedo, Escobedo incriminated himself

in the killing which was admitted at his trial. Deciding that the statements were

inadmissible on the ground that Escobedo had been denied the Sixth Amendment

right to counsel, the Court reversed the conviction. The Court’s decision was limited

to the facts of the case:

52

368 U. S. 52 (1961).

53

373 U.S. 59 (1963).

54

Massiah v. United States, 377 U.S. 201 (1964); Escobedo v. Illinois, 378 U.S. 478 (1964).

55

377 U.S. 201 (1964).

56

Id. at 206.

57

378 U.S. 478 (1964).

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We hold ... that where, as here, (1) the investigation is no longer a general

inquiry into an unsolved crime but has begun to focus on a particular suspect, (2)

the suspect has been taken into police custody, (3) the police carry out a process

of interrogations that lends itself to eliciting incriminating statements, (4) the

suspect has requested and been denied an opportunity to consult with his lawyer,

and (5) the police have not effectively warned him of his absolute constitutional

right to remain silent, the accused has been denied ‘the Assistance of Counsel’

in violation of the Sixth Amendment to the Constitution as ‘made obligatory

upon the States by the Fourteenth Amendment,’ ... and that no statement elicited

by the police during the interrogation may be used against him at a criminal

trial.58

Adverse Implication from Silence

At the time of the writing of the Constitution, the accused was subject to

questioning by a justice of the peace, and if he failed to respond to his questions, it

could be admitted into evidence.59 Subsequently, the courts developed a general

standard or rule of evidence which provided that an accused’s silence following

accusations against him, which one would normally respond to, could be admitted

at trial and made the basis for an adverse inference.60 The prohibition of adverse

comment regarding a defendant’s decision to remain silent was rejected by most

informed professional opinion; this was reflected in the formulation of the model

rules of evidence.61 During the 1960s, six States allowed adverse comments to be

made which stemmed from the silence by the accused.62 There were no decisions by

the Court on this issue regarding the application of the Fifth Amendment for the

reason that the Amendment was not applicable to the States63 until the Court

incorporated the Fifth Amendment and made it applicable to the states in Malloy v.

Hogan64 During the following year, the Court addressed the Fifth Amendment in

reviewing a State case65 when it struck down the provisions of California’s

constitution permitting comment by court and counsel on a defendant’s “...failure to

explain or deny by his testimony any evidence or facts in the case against him....”66

58

Id. at 490-91.

59

Morgan, The Privilege Against Self-Incrimination, 34 Minn. L. Rev. 1, 14, 16-18 (1949).

60

Adoptive Admissions, Arrest and the Privilege Against Self-Incrimination: A Suggested

Constitutional Imperative, 31 U. Chi. L. Rev. 556, 556-59 (1964).

61

Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 939

n.58 (1965).

62

See 8 J. Wigmore, Evidence § 2272 n.2 (McNaughton rev. 1961).

63

See Adamson v. California, 332 U.S. 46 (1947).

64

378 U.S. 1 (1964).

65

See Griffin v. California, 380 U.S. 609 (1965).

66

Id. at 610 n. 2.

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A Right Not To Be Questioned

The accused could not cut off pretrial interrogation inasmuch as the right was

not recognized by the Court prior to its decision in Miranda. For example, in

Crooker v. California,67 the accused claimed his voluntary confession should be

withheld because it was obtained after the police denied his request to contact his

lawyer. The majority rejected this contention, asserting that such a rule “...would

effectively preclude police questioning—fair as well as unfair—until the accused was

afforded opportunity to call his attorney.”68 The Court found support in the Betts v.

Brady69 rule that due process did not impose a flat requirement of appointed counsel

in all serious State trials.

The Miranda Decision and Other Developments

Together with four cases, the title case in Miranda v. Arizona,70 arose from

Ernesto Miranda’s kidnapping and rape of an eighteen-year-old woman. Miranda

confessed to the crime shortly after being taken into custody. He made no request to

consult with an attorney while being interrogated but neither was he advised by the

police that he had a right to have an attorney present. At his trial, the written

confession was admitted in evidence.71 The Court reversed Miranda’s conviction

based upon the failure of the police to comply with the new rules that were

announced in the Miranda decision.

Before the Court explained its holding, it discussed “... the nature and setting of

... in-custody72 interrogation[s] ....”73 The Court was cognizant of the police violence

67

357 U.S. 433 (1958).

68

Id. at 441.

69

316 U.S. 455, 462 (1942).

70

384 U.S. 436 (1966). The Court decided Westover v. United States, 384 U.S. 436 (1966),

rev’g 342 F.2d 684 (9th Cir. 1965); California v. Stewart, 384 U.S. 436 (1966), aff’g 400

P.2d 97 (Cal.1965); and Vignera v. New York, 384 U.S. 436 (1966), rev’g 207 N.E.2d 527

(N.Y. 1965), together with Miranda. These cases involved the issue of whether the

statements taken from a defendant, without any warning regarding the defendant’s rights,

could be admitted as evidence against the defendant at trial.

71

Id. at 491-93.

72

Under Miranda, custody involves being “... deprived of [one’s] freedom of action in any

significant way.” 384 U.S. at 444. The defendant has the burden of proving custody. See

United States v. Charles, 738 F.2d 686, 692 (5th Cir. 1984).

73

Id. at 445. Miranda safeguards only extend to those persons who are subjected to “...

questioning initiated by law enforcement officers after ... [they have] been taken into

custody ...” Id. at 444.

There are various types of questions which do not require Miranda warnings: In

Pennsylvania v. Muniz, 496 U.S. 582, 600-02 (1990), the Court held that “routine booking”

questions are not considered part of the interrogation because they are not intended to “...

elicit ... incriminating response[s] from the suspect.” However, in Estelle v. Smith, 451 U.S.

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which could occur at that time during custodial interrogations because of the

“incommunicado” nature of the proceedings.74 The Court noted that, while police

brutality of the early 1900s75 was no longer the standard practice, the community still

needed protection against the “psychological rather than physically oriented”

interrogation.76 The Court believed that it was necessary to give this protection to

suspects because all police interrogation manuals emphasized the need for privacy

during the interrogation so that in effect, “[t]he subject ... [was] deprived of every

psychological advantage.”77 The Court referred to techniques and psychological

tactics interrogators are instructed to use during an interrogation to obtain evidence

from the suspect.78 The Court reasoned that the suspects needed the safeguards

because “[t]he circumstance surrounding in-custody interrogation can operate very

quickly to overbear the will of [the suspect] ...”79 and without them no statement can

be considered the product of his/her free will.

The rules are designed to safeguard the privilege against self-incrimination, and

must be followed in the absence of “other procedures which are at least as effective

in apprising accused persons of their right of silence and in assuring a continuous

opportunity to exercise it ....”80 These rules apply “[a]t the outset”, when the person

is first subjected to interrogation while in custody at the station or otherwise

restricted in the freedom of his/her actions in any meaningful way.81

The specific rules (safeguards) enunciated by the Court were as follows:

(1) Regardless of his prior awareness of his rights, if the accused in custody

is to be subjected to questioning, “he must first be informed in clear and unequivocal

terms that he has the right to remain silent”, so that those unaware may learn of this

right and so that they will be able to overcome the inherent pressures of the

interrogation atmosphere.82

454, 468-69 (1981), the Court decided that a “court-ordered psychiatric examination” of the

accused did constitute an interrogation requiring Miranda warnings.

74

Id.

75

See Brown v. Mississippi, supra note 7.

76

384 U.S. at 448.

77

Id. at 449.

78

Id. at 453.

79

Id. at 469.

80

Id. at 467.

81

Id. at 467-68, 479.

82

Id. at 467-68. In some situations, statements are admissible even though obtained as a

result of a Miranda violation. In New York v. Quarles, 467 U.S. 649, 655-60 (1984), the

Court held that the statements obtained from the suspect while in custody were admissible,

even though there was a failure to give Miranda warnings, when “... a situation posing a

threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth

Amendment’s privilege against self-incrimination.” Also, statements obtained in violation

of Miranda may be admissible to impeach a defendant’s contradictory testimony at trial.

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(2) The warning regarding the right to remain silent “... must be accompanied

by the explanation that anything said can and will be used against the individual in

court” so as to make sure that the suspect will be aware of the consequences of

forgoing it.83

(3) Because this warning is an absolute prerequisite to interrogation, the

suspect “must be clearly informed that he has the right to consult with a lawyer and

to have the lawyer with him during interrogation” regardless of the circumstances

which may indicate “that the person may have [already] been aware of this right ....”84

(4) The individual must be warned “that if he is indigent a lawyer will be

appointed to represent him,” otherwise, “the admonition of the right to consult with

counsel would often be understood as meaning only that he can consult with a lawyer

if he has ... the funds to obtain one.”85

(5) If the “individual indicates in any manner, at any time prior to or during

questioning, that he wishes to remain silent, the interrogation must cease”; and if he

“states that he wants an attorney, the interrogation must cease until an attorney is

present.”86

(6) If during an interrogation, a statement is taken without the presence of an

attorney, a heavy burden rests on the government to demonstrate that the defendant

knowingly and intelligently waived his privilege against self-incrimination and his

right to retained or appointed counsel”; and “... a valid waiver will not be presumed

simply from the silence of the accused after warnings are given or simply from the

fact that a confession was in fact eventually obtained.”87

(7) Any statement obtained in violation of these guidelines may not be

admitted into evidence inasmuch as the rules do not distinguish degrees of

incrimination and it is without regard as to whether it is only an admission of part of

an offense or whether the statements are “inculpatory” or “exculpatory.”88

(8) It is impermissible for one to be penalized for exercising his Fifth

Amendment privilege, and therefore the prosecution may not “use at trial the fact that

[the accused] stood mute or claimed his privilege in the face of accusation.”89

Oregon v. Hass, 420 U.S. 714, 723-24 (1975).

83

Id. at 469.

84

Id. at 471-72.

85

Id. at 473.

86

Id. at 473-74.

87

Id. at 475.

88

Id. at 476-77.

89

Id. at 468 n.37.

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Subsequently, the Court made two things very clear in Miranda which made it

unique: (1) Based upon the Court’s interpretation, there is a requirement under the

Fifth Amendment that suspects must knowingly and voluntarily waive their rights

which in effect places an affirmative duty on police officers to inform the accused of

his/her rights.90 (2) No decision prior to Miranda in construing the Fifth Amendment

had stated that any of the rules imposed by Miranda were required for compliance

with the amendment.91

Case Law Developments after Miranda

1.

The Right To Counsel.

In 1975, the Court seemed to take a more limited view of the Miranda

safeguards in Michigan v. Mosely.92 The Court in rejecting the strict application of

the Miranda safeguards to bar new interrogations, reviewed the circumstances

leading to the incriminating statements to determine when a suspect waives his

rights.93 The Court “... concluded that the admissibility of statements obtained after

the person in custody has decided to remain silent depends under Miranda on

whether his ‘right to cut off questioning’ was ‘scrupulously honored.’”94 As for the

application of the “scrupulously honored” test, the majority concluded it was met on

the facts of the case because “... the police here immediately ceased the interrogation,

resumed questioning only after the passage of a significant period of time and the

provision of a fresh set of warnings, and restricted the second interrogation to a crime

that had not been a subject of the earlier interrogation.”95 Hence, the Court appeared

to move towards a less rigid approach, permitting limited renewed interrogations

rather than an all inclusive Miranda coverage.

In 1977, the Court appeared to extend the Miranda rights in Brewer v.

Williams.96 In deciding that the police violated the suspect’s rights to counsel under

90

Miranda, 384 U.S. at 478-79.

91

Id. at 467-473.

92

423 U.S. 96 (1975) (Mosely invoked his right to remain silent after police read him his

Miranda rights. Id. at 97. The officers stopped their interrogation, but later, a different

detective at a different location asked Mosely about an unrelated crime. Id. at 97-98. The

new officer then read Mosely his rights again, but during this period, Mosely did not invoke

his right to remain silent and began to give incriminating statements to the detective

voluntarily. Id. at 98. Mosely argued that the Court should prohibit these statements from

being introduced into evidence). Id. at 98-99.

93

Id. at 104.

94

Id.

95

Id. at 106.

96

430 U.S. 387 (1977). After police officers arrested the defendant for abducting a 10-yearold girl, they advised him of his Miranda rights. Id. at 390. The police agreed not to

interrogate the defendant while transporting him. Id. at 391-92. During the trip to Des

Moines, Williams did not express a willingness to be interrogated in the absence of an

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Miranda, the Court stated that “... courts [should] indulge in every reasonable

presumption against waiver....”97 The Court noted that “... the right to counsel

granted by the Sixth and Fourteenth Amendments means at least that a person is

entitled to the help of a lawyer at or after the time that judicial proceedings have been

initiated against him-’whether by way of formal charge, preliminary hearing,

indictment, information, or arraignment.’”98 Being aware that a warrant had been

issued for his arrest, he had been arraigned on that warrant before a judge, and he had

been committed by the court to confinement in jail, the Court concluded “[t]here can

be no doubt in the present case that judicial proceedings had been initiated ....”99 The

State has the burden of proving that a suspect actually relinquished his rights, and not

merely that he comprehended them.100 Hence, the Court appeared to be giving

expanded Miranda protection by making waiver of the right to counsel more

difficult.

In 1979, the Court appeared to change its position again in North Carolina v.

Butler.101 Rather than making waiver more difficult, the Court appeared to make it

easier by allowing implicit waivers.102 Disregarding the rule that only explicit

waivers, either written or oral, are effective, the Court placed emphasis on whether

the accused waived his rights “knowingly and voluntarily” rather than the form of the

accused’s waiver.103 Therefore, according to Butler, words and action may be

sufficient to waive a suspect’s rights but the presumption by the courts must still be

against waiver.104 However, the Court ultimately decided that all the circumstances

will be reviewed in order to determine if the waiver was voluntary.105

attorney; instead, he stated several times that “[w]hen I get to Des Moines and see [my

lawyer] I am going to tell you the whole story.” Id. at 392. The detective and the defendant

then embarked on a wide-ranging conversation which made the defendant feel guilty based

on his religious beliefs. Id. at 392-93. As a result of this, the defendant confessed, and his

lawyer sought to suppress all evidence resulting from these statements. Id. at 393.

97

Id. at 404.

98

Id. at 398.

99

Id. at 399.

100

Id. at 404.

101

441 U.S. 369 (1979).

102

Id. at 373.

103

Id. The defendant was given his Miranda rights orally at the time of arrest and later at

the F.B.I. he read an “Advice of Rights” form which he said he understood, after which he

said he would talk to the agents but would not sign the waiver at the bottom of the form. The

state supreme court excluded the defendant’s incriminating statement on the ground that a

waiver of Miranda rights “... will not be recognized unless such waiver is ‘specifically

made’ after the Miranda warnings have been given”, but the Court disagreed. Id. at 372.

104

105

Id. at 373.

Id. The Court said: “An express written or oral statement of waiver of the right to remain

silent or of the right to counsel is usually strong proof of the validity of that waiver, but is

not inevitably either necessary or sufficient to establish waiver. The question is not one of

form, but rather whether the defendant in fact knowingly and voluntarily waived the rights

delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not

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In 1981, the Court once more in Edwards v. Arizona,106 redefined the

requirements for an effective waiver. The Arizona Supreme Court, in deciding the

issue of voluntariness, applied the totality of the circumstances test in finding that

Edwards waived his rights when he voluntarily spoke with police after he had

invoked his right to counsel during an interrogation the day before.107 The Court

reversed, holding “... that an accused, ... having expressed his desire to deal with

police only through counsel, is not subject to further interrogation by the authorities

until counsel has been made available to him, unless the accused himself initiates

further communication, exchanges or conversations with the police.”108 The Court

further stated that police cannot “... reinterrogate an accused in custody if he has

clearly asserted his right to counsel.”109 It would appear as if the “clearly asserted”

language was an indication that there will be a requirement for a clear and precise

statement in order to invoke the right to counsel, which has the effect of overruling

the “in any manner” guidelines in Miranda. It also reveals the significance that the

Court attaches to protecting the right to counsel by requiring more than an

incognizant waiver of that right; “... the accused himself [must] initiate[] further

communication.”110 Opting for the stricter knowing and intelligent waiver over the

broader totality of circumstances test, the Court appeared to be seeking a way to

affirmatively protect the accused’s right to have counsel during the interrogation.111

In 1983, the Court had another opportunity to review the Edwards test in

Oregon v. Bradshaw.112 The Court agreed in Bradshaw that the admissibility of a

confession given by a defendant who earlier invoked his Miranda right to counsel is

to be determined by a two-part test. It first must be determined whether the

defendant “initiated” further conversation as required by Edwards.113 This means

enough. That does not mean that the defendant’s silence, coupled with an understanding of

his rights and a course of conduct indicating waiver, may never support a conclusion that

a defendant has waived his rights. The courts must presume that a defendant did not waive

his rights: the prosecution’s burden is great; but in at least some cases waiver can be clearly

inferred from the actions and words of the person interrogated.” Id.

106

451 U.S. 477 (1981).

107

Id. at 480, 483; see also United States v. Cleveland, 106 F.3d 1056, 1063 (1st Cir. 1997);

United States v. Maisonneuve, 950 F. Supp. 1280, 1286 (D. Vermont 1996).

108

451 U.S. at 484-85.

109

Id. at 485.

110

Id. at 484-85.

111

See Id. at 485.

112

462 U.S. 1039 (1983); see also United States v. Sriyuth, 98 F.3d 739, 749 (3rd Cir. 1996).

113

462 U.S. at 1045-46. Police arrested Bradshaw and advised him of his Miranda rights.

Id. at 1041. After briefly talking with the police, Bradshaw invoked his right by saying: “I

do want an attorney before it goes very much further.” Id. at 1041-42. The police

immediately ended the questioning. Id. at 1042. Subsequently, Bradshaw asked a police

officer, “Well, what is going to happen to me now?” Id. In response, the police officer

replied that Bradshaw did not have to say anything since he had already requested a lawyer.

Id. After Bradshaw said he understood, the police officer discussed with Bradshaw as to

where he was being taken. Id. Later, Bradshaw admitted his guilt. Id.

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that the impetus must come from the accused, and not the officers.114 Under this test,

any previous police-initiated interrogation must have ended prior to the suspect’s

alleged initial remarks, since he/she cannot “initiate” an ongoing interrogation.115

Second, if it is found that the defendant “initiated” further conversation, it must then

be determined if the accused waived his right to counsel and silence, “... that is,

whether the purported waiver was knowing and intelligent and found to be so under

the totality of the circumstances, including the necessary fact that the accused, not the

police, reopened the dialogue with the authorities.”116

In 1984, in Smith v. Illinois,117 the Supreme Court was presented with its first

opportunity to address an equivocal request for counsel. The Court noted that the

issue was whether the accused had invoked his right to counsel so as to come within

the Edwards test.118 The Court recognized the three approaches for determining the

consequences of such ambiguities but declined to adopt one.119 The Court stated that

“Where nothing about the request for counsel or the circumstances leading up to the

request would render it ambiguous, all questioning must cease.”120 Hence, there

appears to be the implication that only unambiguous requests will be sufficient for

the recognition of the right to counsel.121 However, the Court did not answer the

question.

114

Id. at 1043.

115

See Id.

116

Id. at 1045.

117

469 U.S. 91 (1984).

118

This occurs when the suspect’s statements preceding or contemporaneous with the

purported request for counsel make that request equivocal. The police arrested Smith and

the interrogating officers advised him of his Miranda rights. Id. at 92-93. After the officers

advised him of his right to counsel and asked him if he understood, Smith said: “Uh, yeah.

I’d like to do that.” Id. at 93. Instead of halting the interrogation, the detectives continued

asking more questions about the right to counsel. Id. Smith replied ambiguously until he

finally said that he would like to talk to the detectives. Id. Upon further questioning, Smith

confessed and then invoked his right to counsel. Id. at 93-94. The detectives stopped the

interrogation immediately. Id. at 94. Smith sought to suppress the confession, but both the

trial court and the Illinois Appellate Court did not grant the request, deciding that Smith

never made an effective request for counsel. Id. The Illinois Supreme Court affirmed,

holding that Smith’s statements were ambiguous and not an effective request for counsel.

Id.

119

Id. at 96 n. 3. “Some courts have held that all questioning must cease upon any request

for or reference to counsel, however equivocal or ambiguous. Others have attempted to

define a threshold standard of clarity for such requests, and have held that requests falling

below this threshold do not trigger the right to counsel. Still others have adopted a third

approach, holding that when an accused makes an equivocal statement that ‘arguably’ can

be construed as a request for counsel, all interrogation must immediately cease except for

narrow questions designed to ‘clarify’ the earlier statement and the accused desires

respecting counsel.”

120

Id. at 98.

121

Id.

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In 1986, the Court in Michigan v. Jackson,122 held that when the Sixth

Amendment right to counsel has attached, “... if police initiate interrogation after a

defendant’s assertion, at an arraignment or similar proceeding of his right to counsel,

any waiver of the defendant’s right to counsel for that police-initiated interrogation

is invalid.”123 The Court appeared to move toward a lower limit for invoking the

right to counsel.124 The Court stressed the need for protecting a suspect’s rights,

stating that “... we presume that the defendant requests the lawyer’s services at every

critical stage of the prosecution.”125 The Court’s opinion that “... questions of waiver

requires us to give a broad, rather than a narrow, interpretation to a defendant’s

request for counsel...”126 appears to have been an additional indication of the Court’s

willingness to accept ambiguous requests for counsel.

In 1987, the Court in Connecticut v. Barrett,127 acknowledged for the first time

the issue of the ambiguous request for counsel.128 Though the Connecticut Supreme

Court ruled that the ambiguous request for counsel amounted to an invocation to

counsel for all purposes, the Supreme Court concluded otherwise stating: “Barrett’s

limited requests for counsel ... were accompanied by affirmative announcements of

his willingness to speak with the authorities. The fact that officials took the

opportunity provided by Barrett to obtain an oral confession is quite consistent with

the Fifth Amendment. Miranda gives the defendant a right to choose between speech

and silence, and Barrett chose to speak.”129 Inasmuch as Barrett refused to provide

a written statement but would talk to the police, the Court said he only invoked a

limited right to counsel.130 The Court further stated that “... Barrett made clear his

122

475 U.S. 625 (1986).

123

Id. at 636. After the suspects invoked their right to counsel at an arraignment, the police

continued the interrogation and elicited their confessions. Id. at 627-28. The Court held

that the right to counsel attaches during arraignment interrogations, and as with any

custodial interrogations, any waiver after an assertion of the right is invalid. Id. at 636. See

also Bannister v. Delo, 100 F.3d 610, 620 (8th Cir. 1996).

124

475 U.S. at 636.

125

Id.

126

Id at 633.

127

479 U.S. 523 (1987).

128

After the police advised Barrett of his Miranda rights, he said he would talk to the police,

but would not “... give a written statement unless his attorney was present ....” Id. at 525.

Thirty minutes later, the police gave Barrett his Miranda rights again, and once more,

Barrett said he would talk, but would not provide any written statement. Id. He then

confessed to the police. Id. When the police discovered that they had failed to record the

confession, they advised Barrett of his right for the third time. Id. at 525-26. After Barrett

reiterated his refusal to give any written statement and his willingness to talk, he confessed

again. Id. at 526. The trial court rejected Barrett’s request to suppress the confession,

however the Connecticut Supreme Court reversed, deciding that Barrett “... had invoked his

right to counsel by refusing to make written statements without the presence of his

attorney.” Id. at 526.

129

Id. at 529.

130

Id. at 529-30 n.3.

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intentions,” he invoked his right to have counsel present during a written statement,

but waived his right to have counsel present while speaking with the authorities.131

In 1988, the Court in Arizona v. Roberson,132 provided what appears to be its

current approach to the issue of ambiguous request for counsel. The holding in this

case suggests that the approach taken in Edwards v. Arizona133 rather than Michigan

v. Mosely134 governs even when a subsequent interrogation deals with a different and

unrelated crime.135 In holding that once a suspect invokes the right to counsel, the

police cannot initiate questioning, although the officers were not aware of the

previous invocation136 or if the questioning relates to another crime,137 the Court’s

objective was to protect the suspect’s right to counsel.138

In 1990, in Minnick v. Mississippi,139 the Court clarified the “available to him”

language in Edwards which means “... that when counsel is requested, interrogation

131

Id. at 529.

132

486 U.S. 675 (1988).

133

See supra note 112. A request for counsel under the Edwards rule mandates that all

interrogation must cease unless: (1) “the accused ... initiates further communication,

exchanges or conversations with the police” or (2) counsel is physically present. Mere

arrangements for an attorney or prior consultation with counsel are not sufficient. A

violation of the rule results in suppression of the statements, even though the accused is

readministered his rights to counsel and waives them. According to Arizona v. Roberson,

the rule applies to reinterrogation about any crime under investigation, and the officer’s

good faith lack of knowledge that the accused previously has invoked the right to counsel

is no excuse. However, the question of whether an in-custody suspect can be reinterviewed,

in violation of Edwards, after a considerable passage of time remains unsettled. See United

States v. Green, 592 A.2d 985, 988-91 (D.C.App. 1991)(confession suppressed despite

passage of more than five months after suspect asked for counsel on an unrelated charge),

(cert. dismissed after accused died) 113 S.Ct. 1835 (1993).

134

See supra note 92.

135

The police arrested Roberson for burglary and advised him of his Miranda rights. In

reply, he stated that “... he ‘wanted a lawyer before answering any questions’.” Id. At 678.

Three days later, while Roberson was still in custody, a different officer questioned him

about a different burglary, unaware that Roberson had invoked his right to counsel earlier.

Id. After giving Roberson his rights again, “... the officer obtained an incriminating

statement.” Id. The trial court and the Arizona Supreme Court agreed to suppress the

statement. Id. at 678-79.

136

Id. at 687-88. The Court noted: “Whether a contemplated reinterrogation concerns the

same or a different offense, or whether the same or different law enforcement authorities are

involved in the second investigation, the same need to determine whether the suspect has

requested counsel exists.” Id.

137

Id. at 682-83.

138

Id. at 687-88. See also Bassett v. Singletary, 105 F.3d 1385, 1388 (11th Cir. 1997).

139

498 U.S. 146 (1990).

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must cease, and officials may not reinitiate interrogation without counsel present,

whether or not the accused has consulted with his attorney.”140

In 1994, the Court held in Davis v. United States,141 that the privilege against

further questioning does not extend to a suspect whose request for counsel is

ambiguous.142

Before Davis, the Court had not decided what police officers should do when

the initial request for an attorney is ambiguous.143 The lower courts developed and

followed one of three approaches.144 Regarding the threshold-of-clarity standard, “...

an attempted invocation of the right to counsel [would have to] satisfy a certain

140

Id. at 153. In Minnick, the Court addressed the issue of whether the protection against

further interrogation in Edwards ended upon a suspect’s consultation with an attorney. Id.

at 147. The case involved a defendant who was arrested on suspicion of murder. Id. at 148.

The suspect was read his Miranda rights by Federal Bureau of Investigation (F.B.I.) Agents

and refused to sign a “rights waiver form” and said that “... he would not answer ‘very

many’ questions.” Id. at 148. The suspect gave the agents some information but told them

to “... ‘[c]ome back Monday when I have a lawyer,’ and stated that he would make a more

complete statement ....” Id. at 148-49. After the F.B.I. interviewed the suspect, he spoke

with a lawyer on two or three occasions. Id. at 149. A deputy sheriff came to question the

suspect at the jail where he was being held. Id. Before he advised the suspect of his rights,

the suspect told him that his “... jailers told him that he would ‘have to talk’ to [the deputy

sheriff] and that he ‘could not refuse’.” Id. When the sheriff read the suspect his rights, the

suspect refused to sign a rights waiver form and then confessed to the sheriff about the

events regarding the crime. Id. The trial court allowed into evidence the statements made

to the deputy sheriff, and the defendant was sentenced to death. Id. The Supreme Court of

Mississippi held that the defendant’s “... Fifth Amendment right to counsel was satisfied”

as a result of his meeting with counsel and that the attorney did not have to be present during

the later interrogation to protect the defendant’s rights. Id. at 150. (quoting Minnick v.

State, 551 So.2d 77, 83 (Miss. 1988), cert. granted, 495 U.S. 903, and rev’d., 498 U.S. 146

(1990)).

141

512 U.S. 452 (1994).

142

Id. At 459. The defendant, Navy sailor Davis, was questioned by the Naval Investigative

Service (N.I.S.) About the death of a fellow sailor. At the beginning of the interview, the

N.I.S. agents informed the defendant that he had a right to remain silent, and that he was

entitled to speak with an attorney and to have an attorney present during questioning. Id.

at 454-55. The defendant, however, waived his rights, both orally and in writing. Id. at 455.

About an hour and a half into the interview, the defendant said, “Maybe I should talk to a

lawyer.” Id. at 455. The interviewing agents momentarily stopped questioning the defendant

and made it clear to him that they did want to violate his rights, and that they would stop the

interrogation if he wanted a lawyer. Id. The defendant then responded, “No, I am not

asking for a lawyer,” and “No, I don’t want a lawyer.” Id. The agents, after again

reminding the defendant of his rights, continued the questioning. Id. After another hour of

questioning, the defendant said, “I think I want a lawyer before I say anything else.” Id. At

this point, the agents stopped the interview. Id.

143

See Connecticut v. Barrett, 479 U.S. 523, 530 n. 3 (1987); Smith v. Illinois, 469 U.S. 91,

99-100 (1984).

144

See Charles R. Shreffler, Jr., Judicial Approaches to the Ambiguous Request for Counsel

Since Miranda v. Arizona, 62 Notre Dame L. Rev. 460 (1987).

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threshold of clarity before it [could] be considered effective.”145 The other standard,

was the “per se invocation standard.”146 Under this standard, each post-warning

reference to an attorney by the suspect was considered a per se invocation of the right

to counsel, and any questioning initiated by the police had to cease.147 The third

approach was the clarification standard.148 Here, the courts permitted the police to

pursue the interrogation for the purpose of clarifying the accused’s intent following

an ambiguous invocation of the right to counsel.149

2.

The Miranda Rules (Non-Constitutional Status).

Although the Miranda rules appear to be inflexible and unyielding, neither the

Court nor the lower courts appear to have applied a strict approach in their

application. While compliance with Miranda is constitutionally required under all

circumstances, the Court stated in Michigan v. Tucker150 that:

“The [Miranda decision] recognized that these procedural safeguards were not

themselves rights protected by the Constitution but were instead measures to

insure that the right against compulsory self-incrimination was protected. ... The

suggested safeguards were not intended to ‘create a constitutional straightjacket,’

... but rather to provide practical reinforcement for the right against compulsory

self-incrimination.”151

The deviation from Miranda in the Tucker case appears to be the Court’s

pronouncement that the Fifth Amendment had not been violated in spite of the fact

that the police did not completely comply with Miranda nor did they implement any

substitute procedural safeguards.152 Thus, the Tucker case appears to represent a

weakening of the Miranda procedural safeguards inasmuch as it ignores a significant

amount of the language in the Miranda case.

In New York v. Quarles,153 police officers were approached by a woman who

informed them that she had been raped by an armed man, who had gone into a

145

See Janet E. Ainsworth, In a Different Register: The Pragmatics of Powerlessness in

Police Interrogation, 103 Yale L. J. 259, 301 (1993).

146

Id.

147

Id.

148

Id. at 302.

149

Id.

150

Michigan v. Tucker, 417 U.S. 433 (1974) (Case arose from a rape and battery committed

by Tucker. Tucker was questioned without full Miranda warnings and gave exculpatory

responses. Nonetheless, his statements led the police to a witness, Henderson, who gave

testimony at trial that was damaging to Tucker. The issue was whether Henderson’s

testimony should have been excluded, since it was obtained indirectly through an

interrogation that was not in compliance with Miranda).

151

Id. at 444.

152

Id. at 443-45.

153

467 U.S. 649 (1984).

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nearby supermarket. The police located the suspect in the supermarket where they

arrested him; a frisk uncovered an empty shoulder holster, and the arresting officer

asked him, “Where is the gun?” The suspect gestured toward a stack of soap cartons

and said, “The gun is over there,” and the police found the revolver behind the

cartons. The state courts excluded Quarles’ response identifying the location of the

gun he had discarded because he had not been given the Miranda warnings.154 The

Court reversed and concluded that “... on these facts there is a ‘public safety’

exception to the requirement that Miranda warnings be given ....”155 Similar to

Michigan v. Tucker, the Court rejected the notion that the lack of Miranda warnings

implied that a violation of the Fifth Amendment had occurred.156 The Court

described Miranda as a majority which was willing to impose procedural safeguards

“... when the primary social cost of those added protections is the possibility of fewer

convictions,” which should be distinguished from the Quarles case whereby the harm

would be the incapability “... to insure that further danger to the public did not result

from the concealment of the gun in a public area.”157 Thus the Court concluded “...

that the need for answers to questions in a situation posing a threat to the public

safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s

privilege against self-incrimination.”158 To hold otherwise, the Court in Quarles said

police officers would be “... in the untenable position of having to consider, often in

a matter of seconds, whether it best serves society for them to ask the necessary

questions without the Miranda warnings and render whatever probative evidence

they uncover inadmissible, or for them to give the warnings in order to preserve the

admissibility of evidence they might uncover but possibly damage or destroy their

ability to obtain that and neutralize the volatile situation confronting them.”159

In Oregon v. Elstad,160 the Court rejected the narrow interpretation of the Tucker

case and held that Tucker’s “... reasoning applies with equal force when the alleged

‘fruit’ of a noncoercive Miranda violation is neither a witness nor an article of

evidence but the accused’s own voluntary testimony.”161 In arriving at this

154

Id. at 653.

155

Id. at 655.

156

Id. at 657.

157

Id. at 657.

158

Id.

159

Id. at 657-58.

160

470 U.S. 298 (1985).

161

Id. at 308 (In Elstad, two officers questioned the defendant at his home without first

giving him the Miranda warnings. When they expressed their belief that he had been

involved in a burglary, he stated, “Yes, I was there.” To the extent that this statement was

excluded under Miranda was not an issue. However, the defendant was questioned again

at the Sheriff’s headquarters; there, after being given the Miranda warnings, and after

waiving his rights, he made a full statement explaining his involvement in the burglary. The

defendant argued that his statement should be excluded as the fruit of the poisonous tree,

however, the Court held that the poisonous fruit doctrine did not apply).

CRS-22

conclusion, the Court once more rejected the concept that a violation of Miranda

necessarily involves a violation of the Fifth Amendment.162

As in Michigan v. Tucker, the Court in New York v. Quarles rejected the

contention that the absence of warnings implied that compulsion in violation of the

Fifth Amendment had taken place. Hence, these cases suggest that circumstances

may exist such as “public safety” which may justify an exception or repudiation of

the doctrinal basis of the Miranda decision.

3.

Pretrial Silence.

In Harris v. New York,163 the defendant upon direct examination denied having

made the charged sale of heroin to the undercover agent. He countered the officer’s

testimony as to the sale with testimony that he had sold the officer what appeared to

be heroin, but the bags contained only baking powder. The prosecutor was allowed

to impeach the defendant’s credibility by referring to a statement made by him to the

police which concededly made that statement inadmissible under Miranda. The

Court held that the pretrial statements obtained in violation of Miranda can be used

at trial for impeachment regardless of the contrary dictum in the Miranda case.164

This raised the issue of whether a defendant’s silence during custodial interrogation

can be used for impeachment purposes, in view of the dictum in Miranda165

advancing the concept that the prosecution cannot use this silence at trial.

In Doyle v. Ohio,166 the Court held that impeachment by the defendant’s postarrest silence after he had received the Miranda warnings was impermissible. The

Court said not only is “... every post-arrest silence ... insolubly ambiguous because

[it] ... may be nothing more than the arrestee’s exercise of [his/her] Miranda

rights,”167 but also, use of the silence to impeach “... would be fundamentally unfair

and a deprivation of due process....” considering the fact that the warnings carry the

implicit “... assurance that silence will carry no penalty ....”168

The Court distinguished Doyle v. Ohio in three subsequent cases. In Anderson

v. Charles,169 the Court allowed impeachment by prior inconsistent statements which

were given after the Miranda warnings. The Court said, Doyle bars the use against

a criminal defendant of his silence after receipt of governmental assurances that he

162

Id. at 305.

163

401 U.S. 222 (1971). See also United States v. Moore, 104 F.3d 377, 388 (D.C. Cir.

1997).

164

Id. at 224-25. See also Oregon v. Hass, 420 U.S. 714 (1975) (The same result was

reached, although here the suspect was advised of his right for which he then asked for

counsel but was questioned without his request being honored).

165

384 U.S. at 468 n. 37; 401 U.S. at 230-31 (Brennan, J. dissenting).

166

426 U.S. 610 (1976).

167

Id. at 617.

168

Id.

169

447 U.S. 404 (1980).

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will suffer no adverse consequences of any sort for remaining silent.170 However, “...

Doyle does not apply to cross-examination that merely inquires into prior inconsistent

statements.”171 This “questioning [process] makes no unfair use of silence, because

a defendant who voluntarily speaks after receiving Miranda warnings has not been

induced to remain silent.”172

In Jenkins v. Anderson,173 where at his murder trial, the defendant claimed self

defense, the Court decided that it was permissible to impeach that story by the

defendant’s prearrest silence in not reporting the murder to the police for at least two

weeks. Likewise, in Fletcher v. Weir,174 the Court followed the rationale of Jenkins

and made a distinction between Doyle in allowing impeachment by the use of postarrest silence which was not proceeded by Miranda warnings, reasoning that this was

not “... a case where the government had induced silence by implicitly assuring the

defendant that his silence would not be used against him.”175 In effect, the Court held

that the silence of a suspect in custody prior to his receipt of Miranda warnings can

be admitted for impeachment based upon the following reasoning:

“The significant difference between the present case and Doyle is that the

record does not indicate that respondent Weir received any Miranda warnings

during the period in which he remained silent immediately after his arrest....176

In Jenkins, as in other post-Doyle cases, we have consistently explained

Doyle as a case where the government had induced silence by implicitly assuring

the defendant that his silence would not be used against him....177

In the absence of the sort of affirmative assurances embodied in the

Miranda warnings, we do not believe that it violates due process of law for a

state to permit cross-examination as to postarrest silence when a defendant

chooses to take the stand.”178

170

Id. at 408.

171

Id.

172

Id.

173

447 U.S. 231 (1980).

174

455 U.S. 603 (1982).

175

Id. at 606.

176

Id. at 605

177

Id. at 606.

178

Id. at 607.

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Overcoming the McNabb/Mallory Rule

18 U.S.C. § 3501179 was meant to overrule the exclusion of voluntary

confessions due to the Court’s ruling in McNabb v. United States,180 and Mallory v.

United States.181 The Senate Judiciary Committee conducted extensive hearings on

the effect of the Court’s rulings in McNabb and Mallory on crime and concluded

that they constituted the basis for “[t]he rigid, mechanical exclusion of an otherwise

voluntary and competent confession [and it] is a very high price to pay for a

‘constable’s blunder’.”182

The rationale of 18 U.S.C. § 3501 was stated as follows in the Senate

Committee Report:

[C]rime will not be effectively abated so long as criminals who have voluntarily

confessed their crimes are released on mere technicalities. The traditional right

of the people to have their prosecuting attorneys place in evidence before juries

the voluntary confessions and incriminating statements made by defendants

simply must be restored.183

The case of Escobedo v. Illinois ... set the stage for another most disastrous blow

to the cause of law enforcement.... This case... formed the basis for... Miranda

v. Arizona... In Miranda, the Supreme Court held that an otherwise voluntary

179

Section 3501 governs the admissibility of confessions brought in criminal proceedings

under federal jurisdiction. United States v. Alvarez-Sanchez, 511 U.S. 350, 354 (1994).

In subsection (a), federal judges are instructed to admit a confession if it “... was voluntarily

made ....” To determine the voluntariness of a confession, subsection (b) directs the trial

judge to:

“... take into consideration all the circumstances surrounding the giving of the

confession, including (1) the time elapsing between arrest and arraignment of the

defendant making the confession, if it was made after arrest and before

arraignment, (2) whether such defendant knew the nature of the offense with

which he was charged or of which he was suspected at the time of making the

confession, (3) whether or not such defendant was advised or knew that he was

not required to make any statement and that any such statement could be used

against him, (4) whether or not such defendant had been advised prior to

questioning of his right to the assistance of counsel; and (5) whether or not such

defendant was without the assistance of counsel when questioned and when

giving such confession. The presence or absence of any of the above-mentioned

factors to be taken into consideration by the judge need not be conclusive on the

issue of voluntariness of the confession.” § 3501(b).

180

See McNabb, supra note 30.

181

See Mallory, supra note 34; S.Rept. No. 1097, 90th Cong., 2d Sess. 40 (1968); Norfolk

v. Houston, 941 F. Supp. 894, 902 (D. Neb. 1995) United States v. Headdress, 953 F. Supp.

1272, 1292 (D. Utah 1996).

182

See S.Rept. No. 1097, supra note 181, at 38.

183

Id. at 37.

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confession ... could not be used in evidence unless a fourfold warning had been

given....184

The Committee is convinced ... that the rigid and inflexible requirements of the

majority opinion in the Miranda case are unreasonable, unrealistic, and

extremely harmful to law enforcement. ... The unsoundness of the majority

opinion was forcefully shown by the four dissenting justices, who also predicted

the dire consequences of overruling what theretofore had been the law of the

land....185

[The Miranda] decision was an abrupt departure from precedent extending back

at least to the earliest days of the Republic. Up to the time of the rendition of

this 5-to-4 opinion, the “totality of circumstances” had been the test in our State

and Federal courts in determining the admissibility of incriminating statements....

Mr. Justice White’s dissent... demonstrates beyond question that ... warnings as

to constitutional rights were not required by the Constitution, and that the sole

test of admissibility should be “totality of circumstances” as bearing on

voluntariness.186

The committee is of the view that the [proposed] legislation ... would be an

effective way of protecting the rights of the individual and would promote

efficient enforcement of our criminal laws. By the express provisions the

proposed legislation the trial judge must take into consideration all the

surrounding circumstances in determining the issue of voluntariness, including

specifically enumerated factors which historically enter into such a

determination. Whether or not the arrested person was informed of or knew his

rights before questioning is but one of the factors.187

The committee is aware that a few have expressed the view that legislation by

Congress restoring the voluntariness test to the admissibility of confessions and

incriminating statements would be declared unconstitutional, on the ground that

the provisions do not measure up to the rigid standards set forth in Miranda. The

committee is also aware that the opinions of the four dissenting Justices clearly

indicate that neither of them would consider these provisions unconstitutional.188

The committee feels that it is obvious from the opinion of Justice Harlan and

other dissenting Justices... that the overwhelming weight of judicial opinion in

this country is that the voluntariness test does not offend the Constitution or

deprive a defendant of any constitutional right. No one can predict with any

assurance what the Supreme Court might at some future date decide if these

provisions are enacted. The committee has concluded that this approach to the

balancing of the rights of society and the rights of the individual served us well

over the years, that it is constitutional and that Congress should adopt it, After

all, the Miranda decision itself was by a bare majority of one, and with

increasing frequency the Supreme Court has reversed itself. The committee feels

184

Id. at 41.

185

Id. at 46.

186

Id. at 48-49.

187

Id. at 51.

188

Id.

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that by the time the issue of constitutionality would reach the Supreme Court, the

probability rather is that this legislation would be upheld.189

By replacing the McNabb/Mallory rule, Congress did not completely eliminate

the exclusion of confessions obtained during a delay in presentment. Instead,

Congress provided for a six-hour period in which the confession must be made or

given following the arrest or other detention.190 Confessions which have been

obtained up to six hours after arrest and before presentment are not to be considered

inadmissible by a delay in presentment.191 It should also be noted that when

Congress enacted the statute, it did not intend for every confession made after the sixhour period to be inadmissible.192 Therefore, it would appear that 18 U.S.C. §

3501(c) has in effect rejected the McNabb/Mallory rule for confessions obtained

within six hours of arrest or detention. However, this will not be definitively

determined until a case comes before the Court which involves a confession made

more than six hours after arrest during a delay in presentment.

The Suspension in Implementation of Section 3501

In addition to the McNabb and Mallory line of decisions which subsection (c)

overrules, section 3501 also stemmed from congressional reaction to Miranda.193 It

was stated that “[t]he legislation was designed to overrule Miranda v. Arizona and

certain other decisions that were perceived to be detrimental to law enforcement.”194

The Senate Report provided that “... crime will not be effectively abated so long as

criminals who have voluntarily confessed their crimes are released on mere

technicalities.”195 It also viewed the requirements of Miranda as “... rigid and

inflexible requirements [and they were] unreasonable, unrealistic, and extremely

harmful to law enforcement.”196

Not only was there tension between Congress and the Court over the Miranda

decision, there was also the lack of a warm reception for section 3501, following its

enactment, by the incumbent Administration. Upon signing the Omnibus Crime

Control and Safe Streets Act of 1968, President Johnson indicated in his statement

189

Id.

190

18 U.S.C. § 3501 (c) (1994).

191

Id.

192

Id.

193

One year after the Court decided the Miranda decision, Congress passed 18 U.S.C. §

3501, for the purpose of weakening the Miranda warnings. See The Jury And The Search

For Truth: The Case Against Excluding Relevant Evidence At Trial: Hearings Before The

Committee On The Judiciary, 104th Cong., 1st Sess. 116 (1995).

194

Office of Legal Policy, United States Department of Justice, Report to the Attorney

General on the Law of Pretrial Interrogation (1986), reprinted in 22 U. Mich. J. L. Ref. 437,

512 (1989) (hereafter Office of Legal Policy).

195

S.Rept. 1097, supra note 181, at 37.

196

Id. at 46.

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that he did not believe section 3501 was constitutional as it was intended and stated

that it was ambiguous.197 Excerpts from his signing statement are as follows:

“Title II of the legislation deals with certain rules of evidence only in Federal criminal

trials—which account for only 7 percent of the criminal felony prosecutions in this country.

The provisions of Title II, vague and ambiguous as they are, can, I am advised by the

Attorney General, be interpreted in harmony with the Constitution and Federal practices in

this field will continue to conform to the Constitution.

Under long-standing policies, for example, the Federal Bureau of

Investigation and other Federal law enforcement agencies have consistently

given suspects full and fair warning of their constitutional rights. I have asked

the Attorney General and the Director of the Federal Bureau of Investigation to

assure that these policies will continue.”198

Pursuant to this directive, the Attorney General informed the U.S. Attorneys to

submit for evidence only those confessions which complied with Miranda.199 As a

result of the effect which section 3501 had on the Administration, this probably

provided the basis for it not being used immediately following its enactment.200

In United States v. Leong,201 the Department of Justice, in response to an order

from the U.S. Court of Appeals for the 4th Circuit,202 directing it to state its views

regarding the effect of 18 U.S.C. §3501 on the admissibility of Leong’s confession,

its constitutionality, and its possible effects on Miranda,203 said that Miranda is the

law and it would not be appropriate for a lower court to apply the statute in lieu of

Miranda’s requirements without the Supreme Court first reconsidering Miranda.204

The Department also said that “[t]he Supreme Court ... is the final authority on the

scope and interpretation of constitutional provisions, and when ... the Court has

announced a constitutional rule based on its authority to explicate the Constitution,

197

4 Weekly Comp. Pres. Doc. 981, 983 (June 24, 1968).

198

Id. at 983.

199

See Gandara, Admissibility of Confessions in Federal Prosecutions: Implementation of

Section 3501 by Law Enforcement Officials and the Courts, 63 Geo. L. J. 305, 311-12

(1974).

200

See Davis v. United States, 512 U.S. 452, 462-64 (1994)(Scalia, J., concurring). At a

minimum, Justice Scalia’s concurrence confirms that the Department of Justice continues

not to use § 3501).

201

116 F.3d 1474 (4th Cir. 1997)(Supplemental Brief No. 96-4876)(Unpublished

Disposition) The Court of Appeals affirmed the suppression by the U.S. District Court for

the District of Maryland of a confession by Tony Leong, who was arrested for the

possession of an illegal firearm without first being read his rights. The government did not

raise 18 U.S.C. §3501 and, following the decision dropped the case against Leong by not

petitioning for a rehearing en banc.

202

See Supplemental Brief, page 2.

203

See Supplemental Brief 2, page 5.

204

Id. at 6-7.

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the Executive cannot properly urge lower courts to disregard that rule in favor of a

contrary rule established by Congress.205

Two years after Leong, the same court in United States v. Dickerson206 decided

that a confession is voluntary under the criteria set forth in 18 U.S.C. §3501 and it

is admissible in evidence in federal criminal trials even if the requirements of

Miranda are not satisfied. In the 2-1 ruling, the panel decided that the statute

superseded the landmark ruling in Miranda. The Fourth Circuit identified the

principal issue as whether the Miranda warnings are required by the Fifth

Amendment. If they are not according to the panel, they would be more like Federal

Rules of Evidence or “prophylactic” warnings which are not protected by the

Constitution for which Congress can modify or eliminate as it sees fit.207 If on the

other hand, the Fifth Amendment mandates the warnings, Congress can’t modify it

through the enactment of 18 U.S.C. § 3501. The panel held that Miranda is a rule

of law, and not an explicit constitutional requirement that defendants be told of their

right to counsel and to remain silent.208 It also decided that section 3501 was enacted

under Congress’ “... legislative authority ... to prescribe the rules of procedure and

evidence in the federal courts.”209 The Fourth Circuit, sitting en banc, could vacate

the panel’s decision or it may be appealed to the Supreme Court. Until such time,

federal law enforcement officials in the Fourth Circuit who fail to advise defendants

of their Miranda rights may still be able to use their voluntary statements. State

officials, however, remain bound by Miranda, because the statute only applies to

federal prosecutions.

On December 6, 1999, the Supreme Court granted certiorari in Dickerson v.

United States.210 Although the Justice Department prosecuted Dickerson, it took his

side in the case despite opposition from federal prosecutors around the nation. In

urging the Court to hear the case, Attorney General Janet Reno and Solicitor General

Seth Waxman recommended that the Court reaffirm Miranda for the sake of

precedent and public confidence in the fairness of the legal system.211 On June 26,

2000, the Supreme Court, in a 7-2 ruling, said in Dickerson v United States212 that the

police are still required to give the Miranda warnings. The Court said that the

Miranda warnings are more than prophylactic; the decision in itself represents rights

which are protected from unwarranted interrogation under the Fifth Amendment in

205

Id. at 24.

206

166 F.3d 667 (4th Cir. 1999). Upon hearing the news that his home was being searched

following a robbery, Dickerson confessed to driving the getaway car. Later, he moved to

suppress the evidence against him because he had been in custody, and the police had

interrogated him without first reading him his rights.

207

Id. at 689.

208

Id.

209

Id. at 691. 120 S. Ct. 578.

210

Cert. granted, 528 U.S. 1045 (1999).

211

See Dickerson v. United States, On Petition for Writ of Certiorari, Brief for the United

States, In the Supreme Court of the United States, No. 99-5525.

212

530 U.S. 428 (2000).

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state and federal courts.213 Writing for the Court, Chief Justice Rehnquist stated that

“Miranda announced a constitutional rule that Congress may not supersede

legislatively”214 by enacting a long ignored 1968 law know as Section 3501. In

conformity with the rule of stare decisis, the Court said “we decline to overrule

Miranda....”215

Justices Antonin Scalia and Clarence Thomas dissented. Writing for the two,

Justice Scalia stated that the decision “... converts Miranda from a milestone of

judicial overreaching into ... [one] of judicial arrogance.”216

After Dickerson

In Missouri v. Seibert,217 Seibert was convicted of plotting to set a fire that killed

a teenager who had been staying at the family home. The police said she arranged

to have her home burned to cover up the death of her 12-year-old son, who had

cerebral palsy. Seibert had been worried that she would be charged with neglect in

her son’s death.

Seibert was questioned for about 40 minutes at 3:00 a.m. a few days after the

fire without first being given her Miranda warning. At the end of the interrogation,

she admitted the fire was set to cover up the death of her son. After a 20-minute

break, police read the Miranda warning, then turned on a tape recorder and

confronted her about the statements she had just made.

Seibert was convicted of second-degree murder, but she successfully appealed

to the Missouri Supreme Court to have the statements suppressed in court. The U.S.

Supreme Court upheld the ruling.

Testimony revealed that this two-stage questioning often works because

suspects may be more willing to talk before they are told they have a right to remain

silent.218 However, the Court noted a growing and worrisome trend in this technique

found in many national police training manuals and classes.219 As a result, the

practice raised the issue of whether the rule established in Oregon v. Elstad,220 that

a suspect who has once responded to unwarned yet uncoercive questioning is not

thereby disabled from waiving his rights and confessing after he has been given the

213

Id. at 434-435.

214

Id at 437. Chief Justice Rehnquist delivered the opinion of the Court, in which Justices

Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer joined.

215

Id. at 443.

216

Id. at 465.

217

124 S.Ct. 2601 (2004).

218

124 S.Ct. at 2608.

219

124 S.Ct. at 2608-609.

220

470 U.S. 298 (1985).

CRS-30

requisite Miranda warnings, is abrogated when the initial failure to give the Miranda

warnings was intentional?

Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, in a plurality

opinion, concluded that, the postwarning statements were not admissible. The test

used by the plurality was whether the intervening Miranda warnings, when

considered in conjunction with the police officer’s prewarning questions and the

admissions already made by the defendant, were effective in advising the suspect

regarding her postwarning rights.

In applying this test, the plurality focused on the defendant’s position and

emphasized several of the most excessive events during the “two-step interrogation”:

the interrogation took place in the station house; the questioning was “systematic,

exhaustive, and managed with psychological skill”; the prewarning interrogation

caused the suspect in a substantial manner to incriminate herself; and the

interrogating police officer did nothing to remedy the defendant’s likely

misimpression that her prewarning statements would be used against her. These

facts, said the plurality, served to distinguish this case from Oregon v. Elstad.221

The plurality held that their approach was not an application of the “fruit of the

poisonous tree” doctrine.222 However, Justice Breyer in concurrence wrote that “...the

plurality’s approach in practice will function as a ‘fruits’ test.”223 Justice Breyer

would also apply “... the following simple rule...to the two-stage interrogation

technique: Courts should exclude the ‘fruits’ of the initial unwarned questioning

unless the failure to warn was in good faith.”224

Concurring in the judgment, Justice Kennedy would apply a “narrower” test “...

in which the two-step interrogation technique was used in a calculated way to

undermine the Miranda warning.”225 “The admissibility of postwarning statements

should continue to be governed by the principles of Elstad unless the deliberate twostep strategy was employed. If the deliberate two-step strategy has been used,

postwarning statements that are related to the substance of prewarning statements

must be excluded unless curative measures are taken before the postwarning

statement is made. Curative measures should be designed to ensure that a reasonable

person in the suspect’s situation would understand the import and effect of the

Miranda warning and of the Miranda waiver.”226 In other words, the Court left the

door open for police to use some confessions obtained after double interviews by

proving the interrogation was not done “... in a calculated way to undermine the

Miranda warning.”227

221

124 S.Ct. at 2611-612.

222

124 S.Ct. at 2610.

223

Id. at 42613.

224

Id .

225

Id..at 2616.

226

Id..

227

Id.

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Justice O’Connor, with whom Chief Justice Rehnquist, and Justices Scalia, and

Thomas joined dissenting, agreed with the plurality in two areas: the “fruit of the

poisonous tree” doctrine does not apply; and the subjective intent of the interrogating

officer cannot be easily determined and may be more complicated in other situations

which are likely to occur and therefore should be irrelevant.228 This would make it

difficult for lower courts to determine if officers had gone too far. Future courts

deciding on admissibility of such statements, she wrote, “... will be forced to conduct

the kind of difficult, state-of-mind inquiry that we normally take pains to avoid.”229

As opposed to the test adopted by the plurality, the dissent would adopt a different

test. If the prewarning admissions were involuntary, the postwarning admissions

should only be excluded under two circumstances: (a) following Elstad, if the first

statement is shown to have been involuntary “the court must examine whether the

taint dissipated through the passing of time or a change in circumstances” and (b) if

the postwarning statements were involuntary despite the Miranda warnings.230

The Court, in affirming the Missouri Supreme Court’s ruling in Seibert in which

the interrogating officer testified that he deliberately violated Miranda, upheld its

ruling in Dickerson v. United States,231 which affirmed that Miranda rights are

constitutionally based. The Court said: “Strategists dedicated to draining the

substance out of Miranda cannot accomplish by training instructions what Dickerson

held Congress could not do by statute.”232

In United States v. Patane233 the police officers failed to give the defendant

Miranda warnings after arresting him for violating a restraining-order and before

questioning him about a weapon which was recovered based on the defendant’s

voluntary statement that he possessed it. The defendant interrupted the police before

they could finish giving him his Miranda rights, asserting that he knew his rights.

The Court considered the issue of whether the failure to properly Mirandize the

defendant requires the suppression of the physical evidence which was obtained as

a result of the inadmissible, though uncoerced, questioning. The 10th Circuit ruled

in Patane’s favor, concluding that the confiscated gun could not be used as evidence

in court. The 10th Circuit based its decision on the landmark 2000 Supreme Court

ruling in Dickerson v. United States, which held that Miranda rights are

constitutional in nature, not merely prophylactic in application. Before Dickerson,

Miranda rights were seen as a mere safeguard to ensure that law enforcement

officials didn’t abuse their power to get suspects to confess.

228

Id..

229

Id. at 2619.

230

Id.

231

530 U.S. 428 (2000)(reaffirmed Miranda, holding that Miranda’s constitutional character

prevailed against a federal statute that sought to restore the old method of giving no

warnings and litigating most statements which were considered to have been given

voluntarily).

232

124 S.Ct. at 2612.

233

72 U.S.L.W. 4643 (June 28, 2004).

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An earlier Supreme Court case such as the Court’s opinion in Oregon v. Elstad

refers to the evidence resulting from an illegal search under the 4th Amendment as

“fruits of the poisonous tree,” which are not admissible in court. The 10th Circuit

ruled that the poisonous fruit doctrine also applied to confessions obtained in

violation of a defendant’s 5th Amendment protection against self-incrimination.

The government appealed, arguing that the poisonous fruit doctrine does not

apply to physical evidence obtained through an un-Mirandized confession. The

Supreme Court was asked to settle a disagreement that had arisen between the 10th

Circuit and other circuit courts over the past few years.

Justice Thomas, writing for a plurality, which included Justice, Scalia and Chief

Justice Rehnquist concluded that suppression was not necessary. The opinion is

based on the Court’s last term decision in Chavez v. Martinez,234 which held that the

Self-Incrimination Clause in the Fifth Amendment is not violated until a defendant’s

self-incriminating statements are sought to be admitted at trial.235 Because the failure

to provide Miranda warnings is not itself a constitutional violation, there is no

justification for fashioning a “fruit of the poisonous tree” doctrine in this context in

order to deter a non-Mirandized questioning.236

Justice Kennedy, with whom Justice O’Connor concurred in the judgment,

opined that the practical justifications for admitting the physical evidence in this case

were stronger than the justifications for admission in prior cases in which the Court

had permitted the admission of evidence obtained during an unwarned interrogation.

However, unlike the plurality, Justice Kennedy found it “unnecessary to decide

whether the detective’s failure to give [the defendant] the full Miranda warnings

should be characterized as a violation of the Miranda rule itself, or whether there is

‘[any]thing to deter’ so long as the unwarned statements are not later introduced at

trial.”237

Dissenting, Justice Souter writing for Justices Stevens and Ginsburg described

as “beside the point” the majority’s denial that the Fifth Amendment SelfIncrimination Clause addresses the admissibility of nontestimonial evidence.238 The

real issue, Justice Souter wrote, is whether a “fruit of the poisonous tree” doctrine

should be applied lest we create an incentive for the police to omit Miranda

warnings.239 “In closing their eyes to the consequences of giving an evidentiary

advantage to those who ignore Miranda, the majority adds an important inducement

for interrogators to ignore the rule in that case.”240 Justice Breyer dissented

234

538 U.S. 760, 764-768 (2003).

235

124 S.Ct. at 2626.

236

Id.

237

Id.

238

Id.

239

Id.

240

Id.

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separately, writing that he would extend the “fruit of the poisonous tree approach”

to the instant case.241

In Yarborough v. Alvarado,242 Detective Cheryl Comstock informed Maria

Alvarado that her son, Michael, may have seen something or known something about

an incident that had happened and could help with the investigation. Detective

Comstock picked up Mrs. Alvarado and her husband along with 17-year-old Michael

and went to the sheriff’s station for the interview at approximately 12:30p.m.

When Michael’s parents asked Detective Comstock if they could be present

during the interview, she denied their request.

What followed was a two-hour interview conducted solely by Comstock in a

room that was behind a locked door. During this time, Comstock questioned Michael

about the night of September 22, 1995, which left Francisco Castaneda dead from a

bullet wound. Comstock never told Michael that he was under arrest and did not give

him Miranda warnings explaining his 5th Amendment privileges against selfincrimination. Nor was Michael given a statement to sign indicating that he was

voluntarily participating in the interview.

When Michael first explained his version of the events of the night in question,

he did not mention the shooting or his role in hiding the gun. When Comstock

“expressed disbelief” at Michael’s story and told him she had witnesses who had said

“quite the opposite,” Michael started relaying details of the shooting and the hiding

of the gun. It was only after Michael began divulging this information that Detective

Comstock informed him he would be free to go home after the interview.

Michael eventually explained the events that took place after midnight on

September 22. He, Paul Soto and some others went to a shopping mall in Santa Fe

Springs, California. There, they saw Castaneda’s truck and attempted to steal it.

Soto went to the driver’s side of the truck while Michael approached the passenger’s

side and Soto fired a shot killing Castaneda.

Two months later, Detective Comstock again called Maria Alvarado at work,

this time to inform her that Michael had been charged with second-degree murder

and attempted robbery.

Before trial, Alvarado moved to have the court exclude from trial the statements

he made to Detective Comstock because his parents were not allowed to be present

during the interview. The prosecution stated that Miranda warnings were not

required because Alvarado was not “in custody” during the interview. The 9th Circuit

Court of Appeals, held that because Alvarado was a juvenile who had never been

arrested and had no prior experience with law enforcement officials, and because his

parents brought him to the sheriff’s station and were not allowed to be present during

the interrogation, Alvarado was objectively “in custody” when he was questioned.

The court did not believe that “a reasonable 17-year-old in Alvarado’s position would

241

Id.

242

124 S.Ct. 2140.

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have felt free to terminate the interview and leave, and ruled that the improper

admission of Michael’s incriminating statements by the state court had a substantial

and injurious affect on the subsequent jury verdict.243

The Court upheld the police interrogation by a vote of 5-4, in deciding that the

California courts had considered the proper factors in reaching its conclusion that

Michael Alvarado was not in custody for Miranda purposes during his police

interview.

Since the case was in the context of a federal habeas corpus petition, the issue

was not directly whether Michael Alvarado was in custody or not but whether the

state court’s decision that he was not was “unreasonable.” The majority, in

considering all of the facts, believed that it was not unreasonable for the courts to

conclude that he was not in custody: The police did not transport him to the station,

require him to appear at a particular time, threaten him or suggest he would be placed

under arrest; Alvarado’s parents remained in the lobby during the interview,

suggesting that the interview would be brief; police appealed to Alvarado’s interest

in telling the truth and being helpful to a police officer; police twice asked Alvarado

if he wanted to take a break; and, at the end of the interview, he went home.244

Although the Court concluded that the state failed to consider Alvarado’s age

and inexperience in deciding that the interview was not custodial, that in itself, it

said, would not make the state’s decision unreasonable.245

The dissent, written by Justice Breyer, concluded that Alvarado was clearly “in

custody” when the police questioned him and therefore entitled to Miranda warnings.

Justice Breyer posed the following question and facts: “what reasonable person in the

circumstances-brought to a police station by his parent at police request, put in a

small interrogation room, questioned for a solid two hours, and confronted with

claims that there is strong evidence that he participated in a serious crime, could have

thought to himself, ‘well, anytime I want to leave I can just get up and walk out?’”246

In Fellers v. United States,247 the Supreme Court was contending with standards

governing the admissibility of statements that emerge from two different

constitutional protections: (1) a “custodial interrogation” standard applicable to Fifth

Amendment self-incrimination cases (the typical Miranda situation and (2) the Sixth

Amendment right to counsel standard which is used to determine the admissibility

of statements made in the absence of counsel or a waiver of counsel. The Court held

that officers who went to the home of an indicted defendant to execute an arrest

warrant violated his right to counsel by discussing the charge against him in the

absence of his counsel. The petitioner, Fellers, was arrested at his home on an arrest

243

Id. at 2147.

244

Id. 2149-150.

245

Id. at 2152.

246

Id. at 2153.

247

124 S.Ct. 1019(2004).

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warrant following a federal indictment. He made incriminating statements before

being advised of his rights, in response to comments by the police officers that he had

been indicted and they were there to discuss both the amphetamine indictment in

which he was charged and his association with other suspects. He was later

Mirandized at the police station and reiterated his admissions. The Eighth Circuit,

while acknowledging that the defendant’s incriminating statements made in response

to questioning at the time of the arrest must be suppressed, held that subsequent

confirming statements, made after the defendant received Miranda warnings at the

police station, did not have to be suppressed.

The Eighth Circuit concluded that even though the defendant, “responded by

stating that he had associated with the named persons and that he used

amphetamine,” the police conduct did not amount to “a post-indictment interview”

with the defendant (in violation of his Sixth Amendment right to counsel) and that

the second Mirandized statement, reiterating these inculpatory admissions, was

voluntary.

The issues presented to the Supreme Court were: (a) did the Eighth Circuit err

when it concluded that Feller’s Sixth Amendment right to counsel under Massiah v.

United States248 was not violated because he was not interrogated by government

agents when the proper standard under Supreme Court precedent is whether the

government agents deliberately elicited information from him, or must a formal

“interrogation” take place in order to establish the right to counsel; and (b) should the

second statements, preceded by Miranda warnings, have been suppressed as fruits

of an illegal post-indictment interview without the presence of counsel.

Writing for a unanimous Court, Justice Sandra O’Connor said the Eighth Circuit

Court of Appeals erred in holding that the absence of an “interrogation” foreclosed

petitioner’s claim that his jailhouse statements should have been suppressed as fruits

of the statements taken from him at his home.249 Under the Sixth Amendment,

“deliberate elicitation” is the proper standard, not whether there was

“interrogation.”250 Here, the officers deliberately elicited a response by Fellers after

he had been indicted, outside of his counsel’s presence, and without any waiver of

his Sixth Amendment rights.251 This violates Massiah v. United States.252 As a

result, the correct exclusionary rule analysis is under Massiah, and not Miranda.253

The difference between Massiah and Oregon v. Elstad254 appears to be that while

Elstad would permit statements that are knowing and voluntary, even if they are

poisonous fruits of any earlier Miranda violation, the Court has yet to allow Elstad

to be applied under the same circumstances to a Massiah infraction or breach. The

248

377 U.S. 201 (1964).

249

124 S.Ct. at 1020.

250

Id.

251

Id.

252

377 U.S. 201, 206 (1964).

253

124 S.Ct. at 1023.

254

470 U.S. 298 (1985).

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Eighth Circuit was directed to consider the issue of whether the Sixth Amendment’s

exclusionary rule allows an exception similar to the Fifth Amendment’s exclusionary

rule recognized in Oregon v. Elstad.255 The Court’s decision also upholds the rule

that law enforcement officers’ contact with a defendant who has been formally

charged outside of his counsel’s presence does not have to rise to the level of a

formal “interrogation” for the contact to violate the Sixth Amendment right to

counsel.

Regarding the second issue of whether the second statement, preceded by

Miranda warnings should have been suppressed as fruits of an illegal post-indictment

interview without the presence of counsel, the Court said the Court of Appeals

should address this issue on remand, considering the ruling that the first questioning

was unconstitutional.256 The Court appears to recognize that indicted individuals

have special rights but chose not to decide how far those rights extend.

Overview

Since the Fifth Amendment right against self-incrimination did not apply to the

states until 1964,257 its relevance to the admissibility of pretrial statements was

limited to federal proceedings. In the earliest cases, beginning in the late nineteenth

century, issues of admissibility were decided on the basis of the rule excluding

involuntary confessions. During the early 1940s to the late 1950s, these issues were

viewed in terms of an exclusionary rule that the Court created to enforce the

requirements of federal statutory law that the accused be brought promptly before a

magistrate.

The inapplicability of the Fifth Amendment to the states prior to 1964 did not

mean that the interrogation process was free of federal judicial scrutiny. Those

coercive practices that were considered extreme were held to be inadmissible

pursuant to the Fourteenth Amendment due process clause. The germinal case,

Brown v. Mississippi, in which the Court overturned a murder conviction based upon

a confession that had been obtained through torture (hanging and whipping) was

considered a violation of the Fourteenth Amendment due process clause.

In the area of police procedures, two decisions had a very close and significant

relationship to the Miranda decision (Massiah v. United States and Escobedo v.

Illinois). The Massiah decision was notable for the extension of the right to counsel

to police interrogation. The Escobedo case, while grounded upon the Sixth

Amendment right to counsel, spoke without reservation of “the right of the accused

to be advised by his lawyer of his privilege against self-incrimination.”

255

Id.

256

124 S.Ct. at 1023 (The Court said the Eighth Circuit improperly conducted its “fruits”

analysis under the Fifth Amendment (custodial interrogation standard) rather than the

standards of the Sixth Amendment (right to counsel)).

257

See Malloy v. Hogan, supra note 26.

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Two of the most famous elements of Miranda are the Court’s creation of a per

se right to consult with counsel during interrogation, and its creation of a per se right

to be informed that the privilege applies at the police station. The third most famous

element of Miranda is the Court’s determination that “prophylactic” rules are

necessary to reduce the inherent coercion which is prevalent in a majority of the

custodial interrogations.

Since the Miranda decision set forth the right to counsel in 1966, the Court had

not defined with sufficient clarity what was required in order to invoke the right to

counsel. The lower courts have adopted one of three approaches: the threshold-ofclarity standard, the “per se invocation standard,” and the clarification standard.258

When the Court addressed the issue in Davis v. United States, many observers were

surprised when it chose the clarification standard which allowed the police to ignore

an ambiguous request for counsel and continue their interrogation.

Section 3501 of 18 U.S.C. was enacted as a result of the congressional reaction

to Miranda. The legislation was designed to overrule Miranda and certain other

decisions that were perceived to be detrimental to law enforcement.

The Court’s decision in Michigan v. Tucker appeared to declare that the

Miranda safeguards are no longer viewed as rights protected by the Constitution;

they were considered as Court imposed procedural rules. In view of the Court’s

decisions in Dickerson v. United States, which held that Miranda announced a

constitutional rule that Congress may not supersede legislatively nor may

“strategists” drain the substance out of the warnings by training instructors,259 the

Miranda warnings appeared to be stronger than at any time in their controversial

history. However, considering the decisions in the four cases (Seibert, Patane,

Fellers, and Alvarado) which were decided during the 2003-2004 term of the Court

(with two favoring law enforcement and the other two placing additional restrictions

on the police), it is difficult to determine what the current limits are with regards to

the guarantees under the Miranda decision.

258

See supra text accompanying notes 144-49.

259

See Missouri v.Seibert, 124 S.Ct. 2601(2004).

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