SUPREME COURT OF THE UNITED STATES
                                    --------
                                   No. 91-1030
                                    --------
                      PAMELA WITHROW, PETITIONER v. ROBERT
                                                ____
                               ALLEN WILLIAMS, JR.
                       ON WRIT OF CERTIORARI TO THE UNITED
                      STATES COURT OF APPEALS FOR THE SIXTH
                                     CIRCUIT
                                [April 21, 1993]
  JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in part and
dissenting in part.
  Today the Court permits the federal courts to overturn on habeas the
conviction of a double-murderer, not on the basis of an inexorable
constitutional or statutory command, but because it believes the result
desirable from the standpoint of equity and judicial administration.  Because
the principles that inform our habeas jurisprudence - finality, federalism, and
fairness - counsel decisively against the result the Court reaches, I
respectfully dissent from this holding.
                                        I
  The Court does not sit today in direct review of a state- court judgment of
conviction.  Rather, respondent seeks relief by collaterally attacking his
conviction through the writ of habeas corpus.  While petitions for the writ of
habeas corpus are now commonplace - over 12,000 were filed in 1990, compared to
127 in 1941 - their current ubiquity ought not detract from the writ's historic
importance.  See L. Mecham, Annual Report of the Director of the Administrative
Office of the United States Courts 191 (1991) (1990 figures); Fay v. Noia, 372
                                                              ___    ____
U. S. 391, 446, n. 2 (1963) (Clark, J., dissenting) (1941 figures).  "The Great 
 Writ" can be traced through the common law to well 

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2                              WITHROW v. WILLIAMS
                                      ____
before the founding of this Nation; its role as a "prompt and efficacious remedy
for whatever society deems to be intolerable restraints" is beyond question. 
Fay, 372 U. S., at 401-402.  As Justice Harlan explained:
___
     "Habeas corpus ad subjiciendum is today, as it has always been, a
      _____________________________
   fundamental safeguard against unlawful custody. . . . Although the wording of
   earlier statutory provisions has been changed, the basic question before the
   court to which the writ is addressed has always been the same: in the
   language of the present statute, on the books since 1867, is the detention
   complained of `in violation of the Constitution or laws or treaties of the
   United States'?"  Id., at 449 (dissenting).
                     ___
  Nonetheless, we repeatedly have recognized that collateral attacks raise
numerous concerns not present on direct review.  Most profound is the effect on
finality.  It goes without saying that, at some point, judicial proceedings must
draw to a close and the matter deemed conclusively resolved; no society can
afford forever to question the correctness of its every judgment.  "[T]he writ,"
however, "strikes at finality," McCleskey v. Zant, 499 U. S. ___, ___ (1991)
                                _________    ____
(slip op., at 22), depriving the criminal law "of much of its deterrent effect,"
Teague v. Lane, 489 U. S. 288, 309 (1989) (plurality opinion), and sometimes
______    ____
preventing the law's just application altogether.  See McCleskey, supra, at ___
                                                       __________ ______
(slip op., at 22).  "No one, not criminal defendants, not the judicial system,
not society as a whole is benefited by a judgment providing a man shall
tentatively go to jail today, but tomorrow and every day thereafter his
continued incarceration shall be subject to fresh litigation."  Mackey v. United
                                                                ______    ______
States, 401 U. S. 667, 691 (1971) (Harlan, J., concurring in part and dissenting
______
in part); see also McCleskey, supra, at ___ (slip op., at 23).
                   _________  _____
  In our federal system, state courts have primary respon-

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                               WITHROW v. WILLIAMS                             3
                                      ____
sibility for enforcing constitutional rules in their own criminal trials.  When
a case comes before the federal courts on habeas rather than on direct review,
the judicial role is "significantly different."  Mackey, supra, at 682 (Harlan,
                                                 ______  _____
J., concurring in part and dissenting in part).  Accord, Teague, supra, at
                                                         ______  _____
306-308.  Most important here, federal courts on direct review adjudicate every
issue of federal law properly presented; in contrast, "federal courts have never
had a similar obligation on habeas corpus."  Mackey, supra, at 682 (Harlan, J.,
                                             ______  _____
concurring in part and dissenting in part).  As the Court explains today,
federal courts exercising their habeas powers may refuse to grant relief on
certain claims because of "prudential concerns" such as equity and federalism. 
Ante, at 4.  This follows not only from the express language of the habeas
____
statute, which directs the federal courts to "dispose of [habeas petitions] as
law and justice require," 28  U. S. C. S2243, but from our precedents as well. 
In Francis v. Henderson, 425 U. S. 536 (1976), we stated that "[t]his Court has
   _______    _________
long recognized that in some circumstances considerations of comity and concerns
for the orderly administration of criminal justice require a federal court to
forgo the exercise of its habeas corpus power."  Id., at 539.  Accord, Gomez v.
                                                 ___                   _____
United States District Court for Northern Dist. of California, 503 U. S. ___,
_____________________________________________________________
___ (1992) (slip op., at 1) ("Whether [a] claim is framed as a habeas petition
or S1983 action, [what is sought is] an equitable remedy;" as a result, equity
must be "take[n] into consideration"); Fay v. Noia, supra, at 438 ("[H]abeas
                                       ___    ____________
corpus has traditionally been regarded as governed by equitable principles");
Duckworth v. Eagan, 492 U. S. 195, 213 (1989) (O'CONNOR, J., concurring) ("[T]he
_________    _____
Court has long recognized that habeas corpus [is] governed by equitable prin-
ciples" (internal quotation marks omitted)).
  Concerns for equity and federalism resonate throughout our habeas
jurisprudence.  In 1886, only eight years after Congress gave the federal courts
power to issue writs

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                                      ____
ordering the release of state prisoners, this Court explained that courts could
accommodate federalism and comity concerns by withholding relief until after
state proceedings had terminated.  Ex parte Royall, 117 U. S. 241, 251-253
                                   _______________
(1886).  Accord, Fay, supra, at 418-419.  More recently, we relied on those same
                 ___  _____
concerns in holding that new constitutional rules of criminal procedure do not
apply retroactively on habeas.  Teague, supra, at 306.  Our treatment of
                                ______________
successive petitions and procedurally defaulted claims similarly is governed by
equitable principles.  McCleskey, 499 U. S., at ___ (successive petitions) (slip
                       _________
op., at 20-22); id., at ___ (procedurally defaulted claims) (slip op., at 21);
                ___
Fay, supra, at 438 (procedurally defaulted claims).  Most telling of all, this
___  _____
Court continuously has recognized that the ultimate equity on the prisoner's
side - a sufficient showing of actual innocence - is normally sufficient,
standing alone, to outweigh other concerns and justify adjudication of the
prisoner's constitutional claim.  See Sawyer v. Whitley, 505 U. S. ___, ___-___
                                      ______    _______
(1992) (actual innocence of penalty) (slip op., at 6-13); Murray v. Carrier, 477
                                                          ______    _______
U. S. 478, 496 (1986) (federal courts may reach procedurally defaulted claims on
a showing that a constitutional violation probably resulted in the conviction of
an actually innocent person); Kuhlmann v. Wilson, 477 U. S. 436, 454 (1986)
                              ________    ______
(colorable showing of actual innocence suffices to excuse successive claim); see
also Teague v. Lane, supra, at 313 (where absence of procedure seriously
     ______    ____  _____
diminishes the likelihood of an accurate conviction, a new rule requiring the
procedure may be applied retroactively on habeas).
  Nonetheless, decisions concerning the availability of habeas relief warrant
restraint.  Nowhere is the Court's restraint more evident than when it is asked
to exclude a substantive category of issues from relitigation on habeas. 
Although we recognized the possibility of excluding certain types of claims long
ago, see Mackey,
         ______

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                               WITHROW v. WILLIAMS                             5
                                      ____
401 U. S., at 683 (Harlan, J., concurring in part and dissenting in part), only
once has this Court found that the concerns of finality, federalism, and
fairness supported such a result; that was in Stone v. Powell, 428 U. S. 465
                                              _____    ______
(1976).  Ante, at 4-5.  Since then, the Court has refused to bar additional
         ____
categories of claims on three different occasions.  Ante, at 5-7.
                                                    ____
  Today we face the question whether alleged violations of the prophylactic rule
of Miranda v. Arizona, 384 U. S. 436 (1966), should be cognizable on habeas. 
   _______    _______
Continuing the tradition of caution in this area, the Court answers that
question in the negative.  This time I must disagree.  In my view, the
"prudential concerns," ante, at 4, that inform our habeas jurisprudence counsel
                       ____
the exclusion of Miranda claims just as strongly as they did the exclusionary
                 _______
rule claims at issue in Stone itself.
                        _____
                                       II
  In Stone, the Court explained that the exclusionary rule of Mapp v. Ohio, 367
     _____                                                    ____    ____
U. S. 643 (1961), was not an inevitable product of the Constitution but instead
"`a judicially created remedy.' "  Stone, supra, at 486 (quoting United States
                                   _____________                 _____________
v. Calandra, 414 U. S. 338, 349 (1974)).  By threatening to exclude highly
   ________
probative and sometimes critical evidence, the exclusionary rule "is thought to
encourage those who formulate law enforcement policies, and the officers who
implement them, to incorporate Fourth Amendment ideals into their value system." 
Stone, 428 U. S., at 492.  The deterrent effect is strong: Any transgression of
______
the Fourth Amendment carries the risk that evidence will be excluded at trial. 
Nonetheless, this increased sensitivity to Fourth Amendment values carries a
high cost.  Exclusion not only deprives the jury of probative and sometimes
dispositive evidence, but it also "deflects the truthfinding process and often
frees the guilty."  Id., at 490.  When that happens, it is not just the
                    __
executive or the judiciary but all of society that

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6                              WITHROW v. WILLIAMS
                                      ____
suffers: The executive suffers because the police lose their suspect and the
prosecutor the case; the judiciary suffers because its processes are diverted
from the central mission of ascertaining the truth; and society suffers because
the populace again finds a guilty and potentially dangerous person in its midst,
solely because a police officer bungled.
  While that cost is considered acceptable when a case is on direct review, the
balance shifts decisively once the case is on habeas.  There is little marginal
benefit to enforcing the exclusionary rule on habeas; the penalty of exclusion
comes too late to produce a noticeable deterrent effect.  Id., at 493. 
                                                          ___
Moreover, the rule "divert[s attention] from the ultimate question of guilt,"
squanders scarce federal judicial resources, intrudes on the interest in
finality, creates friction between the state and federal systems of justice, and
upsets the "`constitutional balance upon which the doctrine of federalism is
founded.'"  Id., at 490, 491, n. 31 (quoting Schneckloth v. Bustamonte, 412
            __                               ___________    __________
U. S. 218, 259 (1973) (Powell, J., concurring)).  Because application of the
exclusionary rule on habeas "offend[s] important principles of federalism and
finality in the criminal law which have long informed the federal courts'
exercise of habeas jurisdiction," Duckworth, 492 U. S., at 208 (O'CONNOR, J.,
                                  _________
concurring), we held in Stone that such claims would no longer be cognizable on
                        _____
habeas so long as the State already had provided the defendant with a full and
fair opportunity to litigate.
  I continue to believe that these same considerations apply to Miranda claims
                                                                _______
with equal if not greater force.  See Duckworth, supra, at 209 (O'CONNOR, J.,
                                      _________  _____
concurring).  Like the suppression of the fruits of an illegal search or
seizure, the exclusion of statements obtained in violation of Miranda is not
                                                              _______
constitutionally required.  This Court repeatedly has held that Miranda's
                                                                _______
warning requirement is not a dictate of the Fifth Amendment itself, but a
prophylactic rule.  See, e.g., McNeil v. Wisconsin, 501 U. S. ___, ___ (1991)
                         ____
                            _  ______    _________
(slip op., at 4); Michigan v. Harvey,
                  ________    ______

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                               WITHROW v. WILLIAMS                             7
                                      ____
494 U. S. 344, 350 (1990); Duckworth, supra, at 203; New York v. Quarles, 467
                           _________  _____          ________    _______
U. S. 649, 654 (1984); Michigan v. Tucker, 417 U. S. 433, 442-446 (1974). 
                       ________    ______
Because Miranda "sweeps more broadly than the Fifth Amendment itself," it
        _______
excludes some confessions even though the Constitution would not.  Oregon v.
                                                                   ______
Elstad, 470 U. S. 298, 306 (1985).  Indeed, "in the individual case, Miranda's
______                                                               _______
preventive medicine [often] provides a remedy even to the defendant who has
suffered no identifiable constitutional harm."  Id., at 307.
                                                ___
  Miranda's overbreadth, of course, is not without justification.  The exclusion
  _______
of unwarned statements provides a strong incentive for the police to adopt
"procedural safeguards," Miranda, 384 U. S., at 444, against the exaction of
                         _______
compelled or involuntary statements.  It also promotes institutional respect for
constitutional values.  But, like the exclusionary rule for illegally seized
evidence, Miranda's prophylactic rule does so at a substantial cost.  Unlike
          _______
involuntary or compelled statements - which are of dubious reliability and are
therefore inadmissible for any purpose - confessions obtained in violation of
Miranda are not necessarily untrustworthy.  In fact, because voluntary
_______                                                      _________
statements are "trustworthy" even when obtained without proper warnings, Johnson
                                                                         _______
v. New Jersey, 384 U. S. 719, 731 (1966), their suppression actually impairs the
   __________                                                        _______
pursuit of truth by concealing probative information from the trier of fact. 
See Harvey, supra, at 350 (Miranda "result[s] in the exclusion of some voluntary
    ______  _____          _______
and reliable statements"); Elstad, supra, at 312 (loss of "highly probative
                           ______  _____
evidence of a voluntary confession" is a "high cost [for] law enforcement");
McNeil, supra, at ___ (slip op., at 9) (Because "the ready ability to obtain
______________
uncoerced confessions is not an evil but an unmitigated good," the exclusion of
such confessions renders society "the loser"); Tucker, supra, at 461 (WHITE, J.,
                                               ______  _____
concurring in judgment) ("[H]aving relevant and probative testimony, not
obtained by actual coercion . . . aid[s] in the pursuit of truth"); Miranda,
                                                                    _______

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                                      ____
supra, at 538 (WHITE, J., dissenting) ("Particularly when corroborated, . . .
_____
such [voluntary] confessions have the highest reliability and significantly
contribute to the certitude with which we may believe the accused is guilty").
  When the case is on direct review, that damage to the truth-seeking function
is deemed an acceptable sacrifice for the deterrence and respect for
constitutional values that the Miranda rule brings.  But once a case is on
                               _______
collateral review, the balance between the costs and benefits shifts; the
interests of federalism, finality, and fairness compel Miranda's exclusion from
                                                       _______
habeas.  The benefit of enforcing Miranda through habeas is marginal at best. 
                                  _______
To the extent Miranda ensures the exclusion of involuntary statements, that task
              _______
can be performed more accurately by adjudicating the voluntariness question
directly.  See Johnson, supra, at 730-731.  And, to the extent exclusion of
               _______  _____
voluntary but unwarned confessions serves a deterrent function, "[t]he awarding
of habeas relief years after conviction will often strike like lightning, and it
is absurd to think that this added possibility . . . will have any appreciable
effect on police training or behavior."  Duckworth, supra, at 211 (O'CONNOR, J.,
                                         _________________
concurring).  Judge Friendly made precisely the same point 18 years earlier:
"[T]he deterrent value of permitting collateral attack," he explained, "goes
beyond the point of diminishing returns."  Friendly, Is Innocence Irrelevant? 
Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 163 (1970).
  Despite its meager benefits, the relitigation of Miranda claims on habeas
                                                   _______
imposes substantial costs.  Just like the application of the exclusionary rule,
application of Miranda's prophylactic rule on habeas consumes scarce judicial
               _______
resources on an issue unrelated to guilt or innocence.  No less than the
exclusionary rule, it undercuts finality.  It creates tension between the state
and federal courts.  And it upsets the division of respon-

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                               WITHROW v. WILLIAMS                             9
                                      ____
sibilities that underlies our federal system.  But most troubling of all,
Miranda's application on habeas sometimes precludes the just application of law
_______
altogether.  The order excluding the statement will often be issued "years after
trial, when a new trial may be a practical impossibility."  Duckworth, 492
                                                            _________
U. S., at 211 (O'CONNOR, J., concurring).  Whether the Court admits it or not,
the grim result of applying Miranda on habeas will be, time and time again, "the
                            _______
release of an admittedly guilty individual who may pose a continuing threat to
society."  Ibid.
           ____
  Any rule that so demonstrably renders truth and society "the loser," McNeil v.
                                                                       ______
Wisconsin, 501 U. S., at ___ (slip op., at 9), "`bear[s] a heavy burden of
_________
justification, and must be carefully limited to the circumstances in which it
will pay its way by deterring official lawlessness.'"  United States v. Leon,
                                                       _____________    ____
468 U. S. 897, 908, n. 6 (1984) (quoting Illinois v. Gates, 462 U. S. 213,
                                         ________    _____
257-258 (1983) (WHITE, J., concurring in judgment)).  That burden is heavier
still on collateral review.  In light of the meager deterrent benefit it brings
and the tremendous costs it imposes, in my view application of Miranda's
                                                               _______
prophylactic rule on habeas "falls short" of justification.  Ante, at 7.
                                                             ____
                                       III
  The Court identifies a number of differences that, in its view, distinguish
this case from Stone v. Powell.  Ante, at 10-14.  I am sympathetic to the
               _____    _______  ____
Court's concerns but find them misplaced nonetheless.
  The first difference the Court identifies concerns the nature of the right
protected.  Miranda, the Court correctly points out, fosters Fifth Amendment
            _______
rather than Fourth Amendment values.  Ante, at 10.  The Court then offers a
                                      ____
defense of the Fifth Amendment, reminding us that it is "`a fundamental trial
                                                                        _____
right'" that reflects " `principles of humanity and civil liberty'"; that it was
secured "`after years of struggle' "; and that it does not

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                                      ____
serve "some value necessarily divorced from the correct ascertainment of guilt." 
Ante, at 10-11 (quoting United States v. Verdugo-Urquidez, 494 U. S. 259, 364
____                    _____________    ________________
(1990), and Bram v. United States, 168 U. S. 532, 544 (1897)).  The Court's
            ____    _____________
spirited defense of the Fifth Amendment is, of course, entirely beside the
point.  The question is not whether true Fifth Amendment claims - the extraction
                                    ____
and use of compelled testimony - should be cognizable on habeas.  It is whether
           _________
violations of Miranda's prophylactic rule, which excludes from trial voluntary
              _______
confessions obtained without the benefit of Miranda's now-familiar warnings,
                                            _______
should be.  The questions are not the same; nor are their answers.
  To say that the Fifth Amendment is a "`fundamental trial right,'" ante, at 10
                                                     _____          ____
(quoting United States v. Verdugo-Urquidez, 494 U. S. 259, 264 (1990)), is thus
         _____________    ________________
both correct and irrelevant.  Miranda's warning requirement may bear many
                              _______
labels, but "fundamental trial right" is not among them.  Long before Miranda
                                                                      _______
was decided, it was well established that the Fifth Amendment prohibited the
introduction of compelled or involuntary confessions at trial.  And long before
Miranda, the courts enforced that prohibition by asking a simple and direct
_______
question: Was "the confession the product of an essentially free and
unconstrained choice," or was the defendant's will "overborne"?  Schneckloth v.
                                                                 ___________
Bustamonte, 412 U. S., at 225 (quoting Culombe v. Connecticut, 367 U. S. 568,
__________                             _______    ___________
602 (1961)); see, e.g., Bram v. United States, supra; ante, at 7.  Miranda's
                  ____
                     _  ____    _____________________ ____         _______
innovation was its introduction of the warning requirement: It commanded the
police to issue warnings (or establish other procedural safeguards) before
obtaining a statement through custodial interrogation.  And it backed that
prophylactic rule with a similarly prophylactic remedy - the requirement that
unwarned custodial statements, even if wholly voluntary, be excluded at trial. 
Miranda, 384 U. S., at 444.  Excluding violations of Miranda's prophylactic
_______                                              _______
suppression requirement from

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                               WITHROW v. WILLIAMS                            11
                                      ____
habeas would not leave true Fifth Amendment violations unredressed.  Prisoners
still would be able to seek relief by "invok[ing] a substantive test of volun-
tariness" or demonstrating prohibited coercion directly.  Johnson, 384 U. S., at
                                                          _______
730; Elstad, 470 U. S., at 307-308 (statements falling outside Miranda's sweep
     ______                                                    _______
analyzed under voluntariness standard).  The Court concedes as much.  Ante, at
                                                                      ____
11-12 ("[E]liminating habeas review of Miranda issues would not prevent a state
                                       _______
prisoner from simply converting his barred Miranda claim into a due process
                                           _______
claim that his conviction rested on an involuntary confession").
  Excluding Miranda claims from habeas, then, denies collateral relief only in
            _______
those cases in which the prisoner's statement was neither compelled nor
involuntary but merely obtained without the benefit of Miranda's prophylactic
                                                       _______
warnings.  The availability of a suppression remedy in such cases cannot be
labeled a "fundamental trial right," for there is no constitutional right to the
suppression of voluntary statements.  Quite the opposite: The Fifth Amendment,
               _________
by its terms, prohibits only compelled self-incrimination; it makes no mention
                             _________
of "unwarned" statements.  U. S. Const., Amdt. 5 ("No person . . . shall be
compelled in any criminal case to be a witness against himself" (emphasis
_________
added)).  On that much, our cases could not be clearer.  See, e.g., Michigan v.
                                                              ____
                                                                 _  ________
Tucker, 417 U. S., at 448 ("Cases which involve the Self-Incrimination Clause
______
must, by definition, involve an element of coercion, since the Clause provides
only that a person shall not be compelled to give evidence against himself");
                                _________
see Elstad, supra, at 306-307; New York v. Quarles, 467 U. S., at 654-655, and
    ______  _____              ________    _______
n. 5.  As a result, the failure to issue warnings does "not abridge [the]
constitutional privilege against compulsory self-incrimination, but depart[s]
only from the prophylactic standards later laid down by this Court in Miranda." 
                                                                      _______
Tucker, supra, at 446.  If the principles of federalism, finality, and fairness
______  _____

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                                      ____
ever counsel in favor of withholding relief on habeas, surely they do so where
there is no constitutional harm to remedy.
  Similarly unpersuasive is the Court's related argument, ante, at 11, that the
                                                          ____
Fifth Amendment trial right is not "necessarily divorced" from the interest of
reliability.  Whatever the Fifth Amendment's relationship to reliability,
Miranda's prophylactic rule is not merely "divorced" from the quest for truth
_______
but at war with it as well.  The absence of Miranda warnings does not by some
                                            _______
mysterious alchemy convert a voluntary and trustworthy statement into an
involuntary and unreliable one.  To suggest otherwise is both unrealistic and
contrary to precedent.  As I explained above, we have held over and over again
that the exclusion of unwarned but voluntary statements not only fails to
advance the cause of accuracy but impedes it by depriving the jury of
trustworthy evidence.  Supra, at 7-8.  In fact, we have determined that the
                       _____
damage Miranda does to the truth-seeking mission of the criminal trial can
       _______
become intolerable.  We therefore have limited the extent of the suppression
remedy, see Harris v. New York, 401 U. S. 222, 224-226 (1971) (unwarned but
            ______    ________
voluntary statement may be used for impeachment), and dispensed with it entirely
elsewhere, see Quarles, supra (unwarned statement may be used for any purpose
               _______  _____
where statement was obtained under exigent circumstances bearing on public
safety).  And at least one member of this Court dissented from Miranda itself
                                                               _______
because it "establish[ed] a new . . . barrier to the ascertainment of truth by
the judicial process."  Miranda, supra, at 542 (WHITE, J., dissenting). 
                        _______  _____
Consequently, I agree with the Court that Miranda's relationship to accurate
                                          _______
verdicts is an important consideration when deciding whether to permit Miranda
                                                                       _______
claims on habeas.  But it is a consideration that weighs decisively against the
                                                                    _______
Court's decision today.

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                               WITHROW v. WILLIAMS                            13
                                      ____
  The consideration the Court identifies as being "most importan[t]" of all,
ante, at 11, is an entirely pragmatic one.  Specifically, the Court "project[s]"
____
that excluding Miranda questions from habeas will not significantly promote
               _______
efficiency or federalism because some Miranda issues are relevant to a
                                      _______
statement's voluntariness.  Ante, at 11-14.  It is true that barring Miranda
                            ____                                     _______
claims from habeas poses no barrier to the adjudication of voluntariness
questions.  But that does not make it "reasonable to suppose that virtually all
Miranda claims [will] simply be recast" and litigated as voluntariness claims. 
_______
Ante, at 12.  Involuntariness requires coercive state action, such as trickery,
____
psychological pressure, or mistreatment.  Colorado v. Connelly, 479 U. S. 157,
                                          ________    ________
167 (1986) ("[C]oercive police activity is a necessary predicate to the finding
that a confession is not `voluntary'"); ante, at 12 (referring to "the crucial
                                        ____
element of police coercion").  A Miranda claim, by contrast, requires no
                                 _______
evidence of police overreaching whatsoever; it is enough that law enforcement
officers commit a technical error.  Even the forgetful failure to issue warnings
to the most wary, knowledgeable, and seasoned of criminals will do.  Miranda,
                                                                     _______
384 U. S., at 468 ("[W]e will not pause to inquire in individual cases whether
the defendant was aware of his rights without a warning being given").  Given
the Court's unqualified trust in the willingness of police officers to satisfy
Miranda's requirements, ante, at 13, its suggestion that their every failure to
_______                 ____
do so involves coercion seems to me ironic.  If the police have truly grown in
"constitutional . . . sophistication," ante, at 13, then certainly it is
                                       ____
reasonable to suppose that most technical errors in the administration of
Miranda's warnings are just that.
_______
  In any event, I see no need to resort to supposition.  The published decisions
of the lower federal courts show that what the Court assumes to be true
demonstrably is not.  In case after case, the courts are asked on habeas to
decide purely technical Miranda questions that contain
                        _______

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                                      ____
not even a hint of police overreaching.  And in case after case, no
voluntariness issue is raised, primarily because none exists.  Whether the
suspect was in "custody," (Ftnote. 1) whether or not there was "interro-
                          (Ftnote. 1)
gation," (Ftnote. 2) whether warnings were given or were
         (Ftnote. 2)
adequate, (Ftnote. 3) whether the defendant's
          (Ftnote. 3)
                    
____________________
   1)  See, e.g., Schiro v. Clark, 963 F. 2d 962, 974-975 (CA7 1992) (defendant
   1)       ____
               _  ______    _____
approached officer in half-way house and asked to speak to him; not in custody);
Tart v. Massachusetts, 949 F. 2d 490, 504 (CA1 1991) (fisherman asked to produce
____    _____________
document on board his own, docked boat; no custody); Williams v. Chrans, 945
                                                     ________    ______
F. 2d 926, 950-952 (CA7 1991) (voluntary appearance for presentence report
interview; not in custody), cert. denied, 505 U. S. ___ (1992); Carlson v.
                                                                _______
State, 945 F. 2d 1026, 1028-1029 (CA8 1991) (suspect questioned at his home; no
_____
custody); Davis v. Kemp, 829 F. 2d 1522, 1535 (CA11 1987) (defendant voluntarily
          _____    ____
went to police station in absence of evidence that there was probable cause for
arrest; not in custody), cert. denied, 485 U. S. 929 (1988); Cobb v. Perini, 832
                                                             ____    ______
F. 2d 342, 345-347 (CA6 1987) (investigatory Terry-stop; not in custody), cert.
                                             _____
denied, 486 U. S. 1024 (1988); Leviston v. Black, 843 F. 2d 302, 304 (CA8) (in-
                               ________    _____
jail interview initiated by incarcerated defendant; no custody), cert. denied,
488 U. S. 865 (1988); Cordoba v. Hanrahan, 910 F. 2d 691, 693-694 (CA10) (drunk
                      _______    ________
driver questioned at accident scene before arrest; not in custody), cert.
denied, 498 U. S. 1014 (1990). 
   2)  See, e.g., Endress v. Dugger, 880 F. 2d 1244, 1246-1250 (CA11 1989)
   2)       ____
               _  _______    ______
(defendant volunteered information without questioning), cert. denied, 495 U. S.
904 (1990); United States ex rel. Church v. De Robertis, 771 F. 2d 1015,
            ____________________________    ___________
1018-1020 (CA7 1985) (placing defendant's brother in cell with him not
interrogation); Harryman v. Estelle, 616 F. 2d 870, 873-875 (CA5) (en banc)
                ________    _______
(officer's surprised exclamation, "What is this?" upon finding condom filled
with white powder, constituted interrogation), cert. denied, 449 U. S. 880
(1980); Phillips v. Attorney General of California, 594 F. 2d 1288, 1290-1291
        ________    ______________________________
(CA9 1979) (defendant volunteered information after officer stated that he
wished to see interior of defendant's plane).
   3)  See, e.g., Chambers v. Lockhart, 872 F. 2d 274, 275-276 (CA8) (omission
   3)       ____
               _  ________    ________
of right to free appointed counsel), cert. denied, 493 U. S. 938 (1989); Gates
                                                                         _____
v. Zant, 863 F. 2d 1492, 1500-1501 (CA11) (no warning that videotape of
   ____
confession could be used), cert. denied, 493 U. S. 945 (1989); Crespo v.
                                                               ______
Armontrout, 818 F. 2d 684, 685-686 (CA8) (when and whether warnings were given),
__________
cert. denied, 484 U. S. 978 (1987); De La Rosa v. Texas, 743 F. 2d 299, 301-302
                                    __________    _____
(CA5 1984) (officer's explanation of the warnings alleged to be misleading),
cert. denied, 470 U. S. 1065 (1985); Stanley v. Zant, 697 F. 2d 955, 972 (CA11
                                     _______    ____
1983) (allegedly misleading waiver form), cert. denied, 467 U. S. 1219 (1984).

                            91-1030 - CONCUR/DISSENT
                               WITHROW v. WILLIAMS                            15
                                      ____
equivocal statement constituted an invocation of rights, (Ftnote. 4) whether
                                                         (Ftnote. 4)
waiver was knowing and intelligent (Ftnote. 5) - this is the stuff that Miranda
                                   (Ftnote. 5)                          _______
claims are made of.  While these questions create litigable issues under
Miranda, they generally do not indicate the existence of coercion  - pressure
_______
tactics, deprivations, or exploitations of the defendant's weaknesses -
sufficient to establish involuntariness.
  Even assuming that many Miranda claims could "simply be recast" as voluntari-
                          _______
ness claims, it does not follow that barring Miranda's prophylactic rule from
                                             _______
habeas would unduly complicate their resolution.  The Court labels Miranda a
                                                                   _______
"bright-line (or, at least, brighter-line) rul[e]" and involuntariness an
"exhaustive totality-of-circumstances approach," ante, at 12, but surely those
                                                 ____
labels overstate the differences.  Miranda, for all its alleged brightness, is
                                   _______
not without its difficulties; and voluntariness is not without its strengths. 
JUSTICE WHITE so observed in his Miranda dissent, noting that the Court could
                                 _______
not claim that
   "judicial time and effort . . . will be conserved because of the ease of
   application of the [Miranda] rule.  [Miranda] leaves open such questions as
                       _______          _______
   whether the accused was in custody, whether his statements were
                    
____________________
   4)  See, e.g., Bobo v. Kolb, 969 F. 2d 391, 395-398 (CA7 1992) (standing
   4)       ____
               _  ____    ____
mute); Christopher v. Florida, 824 F. 2d 836, 841-843 (CA11 1987) (equivocal
       ___________    _______
invocation of right to silence), cert. denied, 484 U. S. 1077-1078 (1988);
Lightbourne v. Dugger, 829 F. 2d 1012, 1017-1019 (CA11 1987) (spontaneous
___________    ______
resumption of discussion after cutting off questioning), cert. denied, 488 U. S.
934 (1988).
   5)  See, e.g., Terrovona v. Kincheloe, 912 F. 2d 1176, 1179-1180 (CA9 1990)
   5)       ____
               _  _________    _________
(validity of implied waiver in light of defendant's "background, experience, and
conduct"), cert. denied, 499 U. S. ___ (1991); Fike v. James, 833 F. 2d 1503,
                                               ____    _____
1506-1507 (CA11 1987) (defendant's initiation of contact waived previous
invocation of rights).

                            91-1030 - CONCUR/DISSENT
16                             WITHROW v. WILLIAMS
                                      ____
   spontaneous or the product of interrogation, whether the accused has
   effectively waived his rights, . . . all of which are certain to prove
   productive of uncertainty during investigation and litigation during
   prosecution."  Miranda, 384 U. S., at 544-545.
                  _______
Experience has proved JUSTICE WHITE's prediction correct.  Miranda creates as
                                                           _______
many close questions as it resolves.  The task of determining whether a
defendant is in "custody" has proved to be "a slippery one."  Elstad, 470 U. S.,
                                                              ______
at 309; see, e.g., supra, at 14, n. 1 (custody cases).  And the supposedly
             ____
                _  _____
"bright" lines that separate interrogation from spontaneous declaration, the
exercise of a right from waiver, and the adequate warning from the inadequate,
likewise have turned out to be rather dim and ill-defined.  See Rhode Island v.
                                                                ____________
Innis, 446 U. S. 291 (1980) (interrogation); n. 2, supra (interrogation); nn. 4
_____                                              _____
and 5, supra (waiver and invocation); n. 3, supra (adequacy of warnings).  Yet
       _____                                ______
Miranda requires those lines to be drawn with precision in each case.
_______
  The totality-of-the-circumstances approach, on the other hand, permits each
fact to be taken into account without resort to formal and dispositive labels. 
By dispensing with the difficulty of producing a yes-or-no answer to questions
that are often better answered in shades and degrees, the voluntariness inquiry
often can make judicial decisionmaking easier rather than more onerous.  Thus,
it is true that the existence of warnings is still a consideration under the
totality-of-the-circumstances approach, ante, at 12, but it is unnecessary to
                                        ____
determine conclusively whether "custody" existed and triggered the warning
requirement, or whether the warnings given were sufficient.  It is enough that
the habeas court look to the warnings or their absence, along with all other
factors, and consider them in deciding what is, after all, the ultimate
question: whether the confession was compelled and involuntary or the product of
a free and unimpaired will.  See Schneckloth v. Bustamonte, 412 U. S., at
                                 ___________    __________

                            91-1030 - CONCUR/DISSENT
                               WITHROW v. WILLIAMS                            17
                                      ____
225-226.
  Nor does continued application of Miranda's prophylactic rule on habeas
                                    _______
dispense with the necessity of testing confessions for voluntariness.  While
Miranda's conclusive presumption of coercion may sound like an impenetrable
_______
barrier to the introduction of compelled testimony, in practice it leaks like a
sieve.  Miranda, for example, does not preclude the use of an unwarned
        _______
confession outside the prosecution's case in chief, Harris v. New York, 401
                                                    ______    ________
U. S. 222 (1971); Oregon v. Hass, 420 U. S. 714 (1975); involuntary statements,
                  ______    ____
by contrast, must be excluded from trial for all purposes, Mincey v. Arizona,
                                                           ______    _______
437 U. S. 385, 398 (1978).  Miranda does not preclude admission of the fruits of
                            _______
an unwarned statement, see Oregon v. Elstad, supra; but under the Fifth and
                           ______    ______________
Fourteenth Amendments, we require the suppression of not only compelled
confessions but tainted subsequent confessions as well, Clewis v. Texas, 386
                                                        ______    _____
U. S. 707, 710 (1967).  Finally, Miranda can fail to exclude some truly
                                 _______
involuntary statements: It is entirely possible to extract a compelled statement
despite the most precise and accurate of warnings.  See Johnson, 384 U. S., at
                                                        _______
730 (warnings are only one factor in determining voluntariness).
  The Court's final rationale is that, because the federal courts rarely issue
writs for Miranda violations, eliminating Miranda claims from habeas will not
          _______                         _______             ______
decrease state-federal tensions to an appreciable degree.  Ante, at 13-14.  The
                                                           ____
relative infrequency of relief, however, does not diminish the intrusion on
state sovereignty; it diminishes only our justification for intruding in the
first place.  After all, even if relief is denied at the end of the day, the
State still must divert its scarce prosecutorial resources to defend an
otherwise final conviction.  If relief is truly rare, efficiency counsels in
favor of dispensing with the search for the prophylactic rule violation in a
haystack; instead, the federal courts should concentrate

                            91-1030 - CONCUR/DISSENT
18                             WITHROW v. WILLIAMS
                                      ____
on the search for true Fifth Amendment violations by adjudicating the questions
of voluntariness and compulsion directly.  I therefore find it of little moment
that the Police Foundation, et al., support respondent.  Ante, at 14, n. 6. 
                            ______                       ____
Those who bear the primary burden of defending state convictions in federal
courts - including 36 States and the National District Attorneys Association - 
resoundingly support the opposite side.  See Brief for California et al. as
                                                                  ______
Amici Curiae; Brief for Americans for Effective Law Enforcement, Inc., and the
____________
National District Attorneys Association, Inc., as Amici Curiae; see also Brief
                                                  ____________
for United States as Amicus Curiae (United States must defend against claims
                     _____________
raised by federal prisoners under 28 U. S. C. S2255).
  The Court's response, that perhaps the police respect the Miranda rule as a
                                                            _______
result of "the existence of [habeas] review," ante, at 14, is contrary to both
                                              ____
case law and common sense.  As explained above, there is simply no reason to
think that habeas relief, which often "`strike[s] like lightning' " years after
conviction, contributes much additional deterrence beyond the threat of
exclusion during state proceedings.  See supra, at 8 (quoting Duckworth, 492
                                         _____                _________
U. S., at 211 (O'CONNOR, J., concurring)).  Accord, Friendly, 38 U. Chi. L.
Rev., at 163.  And our decision in Stone expressly so held: "The view that the
                                   _____
deterrence . . . would be furthered rests on the dubious assumption that law
enforcement authorities would fear that federal habeas review might reveal flaws
. . . that went undetected at trial and on appeal."  Stone, 428 U. S., at 493
                                                     _____
(footnote omitted).  The majority offers no justification for disregarding our
decision in Stone; nor does it provide any reason to question the truth of
            _____
Stone's observation.
_____
                                       IV
  As the Court emphasizes today, Miranda's prophylactic rule is now 26 years
                                 _______
old; the police and the state courts

                            91-1030 - CONCUR/DISSENT
                               WITHROW v. WILLIAMS                            19
                                      ____
have indeed grown accustomed to it.  Ante, at 13-14.  But it is precisely
                                     ____
because the rule is well accepted that there is little further benefit to
enforcing it on habeas.  We can depend on law enforcement officials to
administer warnings in the first instance and the state courts to provide a
remedy when law enforcement officers err.  None of the Court's asserted
justifications for enforcing Miranda's prophylactic rule through habeas -
                             _______
neither reverence for the Fifth Amendment nor the concerns of reliability,
efficiency, and federalism - counsel in favor of the Court's chosen course. 
Indeed, in my view they cut in precisely the opposite direction.  The Court may
reconsider its decision when presented with empirical data.  See ante, at 12
                                                                 ____
(noting absence of empirical data); ante, at 7 (holding only that today's
                                    ____
argument in favor of extending Stone "falls short").  But I see little reason
________                       _____
for such a costly delay.  Logic and experience are at our disposal now.  And
they amply demonstrate that applying Miranda's prophylactic rule on habeas does
                                     _______
not increase the amount of justice dispensed; it only increases the frequency
with which the admittedly guilty go free.  In my view, Miranda imposes such
                                                       _______
grave costs and produces so little benefit on habeas that its continued
application is neither tolerable nor justified.  Accordingly, I join Part III of
the Court's opinion but respectfully dissent from the remainder.