Terrorism, Miranda, and Related Matters
Released: 2013-04-24T00:00:00

No person … shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law. U.S. Const. Amend. V.

Introduction

In Miranda v. Arizona , the Supreme Court held that no statement made by an individual during a custodial interrogation may be admitted into evidence against him at his criminal trial, unless he was first warned of his relevant constitutional rights and waived them. In New York v. Quarles , the Court later held that the Miranda rule was subject to a "public safety" exception. Throughout this period, federal law stated that following arrest a suspect should be presented to a magistrate and advised of his rights without "unnecessary delay." Confessions made during the course of any unnecessary delay are generally inadmissible at the suspect's subsequent criminal trial. The realities of contemporary terrorism are such that some have questioned whether these general rules can be, and should be, reexamined and adjusted.

Background

Miranda

Before Miranda , the Supreme Court relied on the Fifth Amendment in federal cases, but had largely relied upon due process guarantees to exclude a defendant's involuntary confession from his criminal trial in cases that came to it from the states. Then, as now, the due process inquiry asks "whether a defendant's will was overborne by the circumstances surrounding the giving of a confession." Recourse to due process was no longer necessary in state cases once it became clear that the Fifth Amendment right was itself binding on the states through the Fourteenth Amendment.

In Miranda , the Court provided a more specific standard than the "voluntary under the circumstances" due process test. Convinced that the coercive atmosphere of a law enforcement custodial interrogation could undermine the protection against self-incrimination, the Court declared that confessions that followed such interrogations could only be admitted in evidence against a defendant if he had been given explicit warnings beforehand. That is, the defendant must be warned that he "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."

The warnings having been given, the defendant may explicitly waive them. When a defendant requests the presence of an attorney, questioning must stop until one is made available or until the defendant himself initiates the colloquy. Authorities may not avoid Miranda demands by extracting an unwarned confession, providing the Miranda warnings, and then eliciting the same confession, this time "for the record." Nor may authorities persistently return to questioning after an interrogation has been stopped by a defendant's claim of privilege—except upon the arrival of requested defense counsel, at the defendant's invitation, or following a break in interrogation-related custody of at least 14 days.

The Court has recognized exceptions to the rule. One, discussed below in greater detail, permits admission into evidence of unwarned statements elicited in the interest of an officer's safety and that of the public. Another permits use of unwarned statements for impeachment purposes. Moreover, on a number of occasions, the Court has declined to recognize a Miranda equivalent of the Fourth Amendment's "fruit of the poisonous tree" doctrine.

Shortly after Miranda was handed down, Congress sought to overturn it by statute, 18 U.S.C. 3501. For three decades, however, the provision lay dormant, for the Justice Department considered the provision constitutionally suspect, and would not assert it. Thus, when Dickerson v. United States arose in the Fourth Circuit, the Justice Department declined to defend the section's constitutionality. In spite of Justice Department reservations, the Fourth Circuit decided that Section "3501, rather than Miranda , governs the admissibility of confessions in federal court." The Supreme Court disagreed. " Miranda announced a constitutional rule," which the Court declined to overrule and which "Congress may not supersede legislatively."

Public Safety Exception

In Quarles , police officers pursued a rape suspect into a supermarket, frisked him, discovered he was wearing an empty holster, and handcuffed him. They asked him where the gun was; he told them, "the gun is over there" (nodding to some empty cartons); they arrested him, and then read him his Miranda warnings. The Supreme Court recognized that the "case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enumerated in Miranda ."

It contrasted the Miranda concerns with the exigencies of the case before it. On one hand, "[t]he Miranda decision was based in large part on this Court's view that the warnings which it required police to give to suspects in custody would reduce the likelihood that the suspects would fall victim to constitutionally impermissible practices of police interrogation in the presumptively coercive environment of the station house." On the other hand, "[t]he police in this case ... were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety." The Court perceived the exception as a "narrow" one, and believed police would have no difficulty distinguishing "between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect."

The Court has yet to further refine the exception, but the lower federal appellate courts have construed it narrowly—some more narrowly than others. It has been applied in cases immediately following an arrest when officers have asked an unwarned suspect whether or where a weapon might be found in the immediate area, under circumstances when officers might reasonably believe such a weapon exists and if not secured would pose a danger to themselves or the public.

Although the public safety exception, as currently understood, may only be available in limited circumstances in a terrorist context, its existence suggests that the Court might expand its application under compelling circumstances or might recognize other policy-based exceptions to Miranda .

Miranda Overseas

The Supreme Court has thus far not indicated to what extent, if at all, Miranda applies overseas. In fact, it has spoken only infrequently about the extent to which the Fifth Amendment applies outside the United States. The Court's most recent discussion occurred in Verdugo-Urquidez when it contrasted the difference between the extraterritorial application of the Fourth and Fifth Amendments. There, it noted a violation of the Fifth Amendment privilege against self-incrimination can only occur at trial; a violation of the Fourth Amendment occurs upon the performance of an unreasonable search or seizure—regardless of whether the fruits of the violation are ever offered at trial. For Fifth Amendment purposes, the point of violation is not the place where a statement was coerced, but the place of the criminal proceedings where the statement is offered against the defendant. The Court went on to point out that it previously "rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States." Moreover, even where it had recognized that American civilians, subject to U.S. overseas court-martial proceedings, were entitled to some Fifth and Sixth Amendment protections, a majority of the Court had been unwilling to define the precise scope of such entitlement.

The lower federal courts, however, have held that the Miranda warnings ordinarily do not apply to overseas custodial interrogations conducted by foreign officials. Such unwarned statements may be introduced against the defendant, if voluntary and otherwise admissible. They often identify, but rarely find, two exceptions to this general rule of admissibility—where the interrogation is a joint venture in which U.S. officials are joint participants, or where the circumstances shock the conscience of the court.

Implicit in the first exception is that the privilege against self-incrimination—and the attendant Miranda requirements—apply to the admissibility in criminal proceedings in this country of statements taken overseas by U.S. law enforcement officers. A few courts have suggested that this may be said of the statements of U.S. citizens and foreign nationals alike. They have indicated, however, that "where Miranda has been applied to overseas interrogations by U.S. agents, it has been so applied in a flexible fashion to accommodate the exigencies of the local conditions."

In a case in which overseas statements were offered before an overseas tribunal, a military commission tribunal has concluded that the question of the application of the Fifth Amendment extraterritorially requires a case-by-case consideration.

Miranda and the Military

As a general rule, Miranda applies to custodial interrogations conducted in the course of a military criminal investigation. Both by constitutional imperative and statutory command, unwarned statements are inadmissible against the defendant in any subsequent military prosecution.

The statutory provisions applicable to military commissions, however, declare that the Article 831(a), (b), and (d) of the Code of Military Justice (10 U.S.C. 831(a), (b), and (d), relating to compulsory self-incrimination) shall not apply in commission trials. No one may be required to testify against himself in such proceedings. Nor may statements secured by torture or by cruel, inhuman, or degrading treatment be admitted there. Otherwise, statements of the accused may be admitted in evidence, if they are reliable, probative, and either voluntary or were "made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence."

One of the Guantanamo detainees, tried by military commission for the offense of providing material support for terrorism, moved to suppress statements which he contended were secured in violation of the Fifth Amendment. Based on its reading of Boumediene , the tribunal determined that

when analyzing the extraterritorial application of the Constitution in Guantanamo Bay, the Commission concludes that it should consider (1) the citizenship and status of the detainee and the adequacy of the process through which the status determination was made; (2) the nature of the sites where apprehension and then detention took place; (3) whether practical considerations and exigent circumstances counsel against application of the constitutional right; (4) whether the Executive has provided the accused an adequate substitute for the Constitutional right being sought; (5) whether there is "necessity for the Constitution to apply to prevent injustice; and (6) whether application of the Constitutional right would be "impractical and anomalous."

It further concluded that "[t]he preponderance of these factors analyzed weighs against application of the 5 th Amendment in Guantanamo Bay."

McNabb-Mallory

"[T]he rule known simply as McNabb-Mallory generally renders inadmissible confessions made during periods of detention that violate the prompt presentment requirement of Rule 5(a)." In McNabb v. United States , the Supreme Court was faced with a case in which federal officers had disregarded statutory obligations to promptly present arrested defendants to a committing magistrate. The officers had instead detained and interrogated the suspects over the course of several days, until the confessions upon which the defendants' convictions were based had been extracted. The Court found it "unnecessary to reach the Constitutional issues pressed upon" it. Based instead on its supervisory authority over the federal courts, the Court announced that henceforth such confessions, voluntary or involuntary, secured without regard to prompt presentation requirements could not be admitted in evidence against a defendant.

When the various statutory presentation requirements were later superseded by rule 5(a) of the Federal Rules of Criminal Procedure (requiring presentation "without unnecessary delay"), no explicit mention was made of either the McNabb exclusionary rule or any other means of enforcement. The Court, however, quickly affirmed the continued vitality of McNabb when following the promulgation of rule 5; it reiterated that McNabb applied to both voluntary and involuntary confessions. In Mallory , it made clear that any "delay must not be of as a nature to give opportunity for the extraction of confession."

A second provision within Section 3501 addresses the McNabb-Mallory rule, 18 U.S.C. 3501(c). It states that a presentation delay of less than six hours does not by itself render a voluntary confession inadmissible. Recently, the question arose whether, as with Miranda , Section 3501 was intended to abrogate the McNabb-Mallory , rather than to simply limit its application to voluntary confessions made within six hours of detention. The Court held that Congress intended to modify, not repudiate, McNabb-Mallory . Thus, "[u]nder the rule as revised by §3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was reasonable considering the means of transportation and the distance to be traveled to the nearest available magistrate)." If so, the confession is admissible as Section 3501(c) provides, "so long as it was made voluntarily and the weight to be given it is left to the jury." If not, "the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallor y cases, and if it was, the confession is to be suppressed."

Legislative Proposals

The following Miranda -related legislative proposals were offered in the 111 th Congress. Comparable provisions do not appear to have been introduced since.

P.L. 111-84

Section 1040 of the National Defense Authorization Act for Fiscal Year 2010, P.L. 111-84 ( H.R. 2647 ), 123 Stat. 2454 (2009), prohibited members of the Armed Forces as well as Defense Department officers and employees from providing Miranda warnings to foreign nationals captured, or held in Defense Department custody, outside the United States as enemy belligerents. The prohibition does not apply to the Justice Department. The section also directed the Secretary of Defense to report to the Armed Services Committees within 90 days on the impact of providing the warnings to detainees in Afghanistan.

H.R. 2701 (111th Cong.)

Section 504 of the Intelligence Authorization Act for Fiscal Year 2010 ( H.R. 2701 ), as reported out of the House Select Committee on Intelligence ( H.Rept. 111-186 ), would have prohibited the use of funds authorized for appropriation under the bill to provide Miranda warnings to foreign nationals outside the United States who were either in the custody of the Armed Forces or believed to have terrorist-related information. The House passed H.R. 2701 , as amended and with the Miranda provisions as Section 503, on February 26, 2010, 156 Cong. Rec. H946 (daily ed. February 26, 2010). The provision was dropped before final passage of the bill as P.L. 111-259 , 124 Stat. 2654 (2010).

H.R. 3170 (111th Cong.)

Section 744 of Financial Services and General Government Appropriations Act, 2010 ( H.R. 3170 ), as reported out of the House Appropriations Committee ( H.Rept. 111-202 ), would have called upon the Administration to supply Congress with information relating to Miranda warnings provided by the Justice Department to foreign nationals who are either in the custody of the Armed Forces or suspected of terrorism. The Consolidated Appropriations Act, 2010 ( H.R. 2847 ), P.L. 111-117 , 123 Stat. 3034 (2009), which absorbed many of the provisions of H.R. 3170 , had no comparable provision.

H.R. 5136 (111th Cong.)

The National Defense Authorization Act for Fiscal Year 2011 as passed by the House would have extended the Miranda provision found in the FY2010 authorization bill. The provision was dropped before final passage of its successor ( H.R. 6523 ) as P.L. 111-383 , 124 Stat. 4137 (2011).

S. 3081 (111th Cong.)

Section 3(b)(3) of the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 ( S. 3081 ), as introduced, would have directed that an unprivileged belligerent, interrogated under the bill's procedures relating to high-value detainees, not be given Miranda or comparable warnings.

H.R. 4892 (111th Cong.)

Section 3(a)(1)(D) of the Enemy Belligerent Interrogation, Detention, and Prosecution Act of 2010 ( H.R. 4892 ), as introduced, would have required the approval of the Director of National Intelligence before Miranda warnings could have been provided to high-value detainees believed to have terrorism-related information and captured, held, or questioned by an entity with an intelligence community element.

H.Res. 537 (111th Cong.)

H.Res. 537 , as adversely reported by the House Judiciary Committee ( H.Rept. 111-189 ), would have called upon the Administration to supply Congress with information relating to Miranda warnings provided by the Justice Department to foreign nationals who were in the custody of the Armed Forces in Afghanistan and suspected of terrorism.

H.Res. 570 (111th Cong.)

H.Res. 570 would have directed the Secretary of Homeland Security to provide the House with information relating to the immigration status of any foreign national captured in Afghanistan who was given Miranda warnings by the Justice Department, was in the Defense Department's custody, was suspected of terrorism, and might have been subject to a transfer or release into the United States for civilian or military proceedings.

H.Res. 602 (111th Cong.)

H.Res. 602 would have called upon the Administration to provide the House with information, generated on or after January 1, 2005, and relating to the impact of providing Miranda warnings to Defense Department detainees in Afghanistan suspected of terrorism.