Repealing Miranda?: Background of the Controversy over Pretrial Interrogation and Self-Incrimination
Released: 2004-07-20T00:00:00

Introduction

During the 105th Congress, the proposed "Omnibus Crime Control Act of 1997" containedprovisions designed to overrule Miranda . This is a review of the controversy sparked by this as wellas 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 periodcovering the aftermath. The topics covered include an historical overview of the case law of pretrialinterrogation prior to Miranda , that barred use of a confession during a defendant's criminal trial ifhe had not been given certain warnings before confessing; the Miranda decision and related SupremeCourt cases; the McNabb/Mallory rule, that barred certain confessions made while the defendant wasbeing illegally held in custody; 18 U.S.C. ï¿½ 3501, that addressed the issues raised by Miranda andthe McNabb/Mallory rule; proposals to replace Miranda with a further amended versionsection3501; and the Court's decision in Dickerson , which appears to have left the Miranda rulestrongerthan 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 SupremeCourt's early decisions on the admissibility of confessions in federal courts relied upon the commonlaw rule. (2) In the 1897 case of Bram v. UnitedStates , (3) the Court attempted to define the FifthAmendment concept of voluntariness and to base exclusion upon violation of the privilege againstself-incrimination, but the Court in a subsequent decision appeared to withdraw from thatviewpoint. (4) Nonetheless, the Bram "voluntariness" approach was affirmed in Zhang Sung Wan v.United States, (5) and it influenced the Court tostate the rule of exclusion more broadly, so that it wasnot merely a matter of whether the confession was reliable or whether a forbidden inducement hadbeen used, but rather whether the confession "was in fact, voluntarily made." (6) According to thisdoctrine, confessions were admitted only if they had been given voluntarily; confessions wereexcluded if the suspect's will was subject to police duress.

Due Process Prior to Miranda

It was not until Brown v. Mississippi (7) that the Supreme Court applied the due process standardfor use of a confession in State criminal proceedings. Prior to that time, the Court had consistentlyheld that the Fifth Amendment did not apply to the states, and considered the admissibility ofincriminating statements in state proceedings as a issue of Fourteenth Amendment due processrelative to those standards regarding the conventional rule of evidence which prohibits involuntaryconfessions. (8) In Brown , three Blackdefendants were beaten by sheriff's deputies investigating themurder of a White male. The deputies hung one of the suspects from a tree, let him up and downseveral times and then beat him twice (while tied to a tree and subsequently on the roadside) untilhe confessed. (9) The deputies arrested the other twosuspects, stripped and placed them over chairs,and then beat both suspects with buckled leather straps until they confessed. (10) Since the FifthAmendment privilege was then not deemed applicable to the states, the Court struck down theconfessions based on the theory that interrogation is part of the process by which a state acquires aconviction and thus is subject to the requirements of the Fourteenth Amendment due processclause. (11) The Court unanimously reversed theconvictions of all three suspects, deciding that thepolice 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 admissionat trial of such a confession was unconstitutional. (13) In Brown , the Court held that although a Statemight be able to do away with the privilege against self incrimination completely, a State could notexact a confession by torture. (14) Subsequently,this was commonly referred to as the "FourteenthAmendment due process voluntariness test" requirement, and it was the standard used by the Courtin articulating the due process requisites for its admissibility. (15) Under this standard, the admissibilityof a confession was evaluated on a case by case basis according to the "totality of thecircumstances," (16) surrounding each confession.

Four years after Brown , the Court in Chambers v. Florida , (17) reversed a State conviction basedon confessions obtained after five days of interrogation, during which the suspects had no contactwith their friends, advisers or counselors. (18) TheCourt went further than Brown and held that evenwhere there was no physical violence, (19) continuous questioning and "other ingenious forms ofentrapment of the helpless" could constitute compulsion. (20) Justice Black noted that it has beensuggested that the use of these coercive tactics "has lowered the esteem in which [the] administrationof justice is held by the public and has engendered an attitude of hostility to unwillingness tocooperate 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 Courtagain ruled for reversal. (22) In these and othersimilar cases, (23) where the convictions werereversed,the Court indicated its concern for the integrity of the process used for extracting the confession andnoted that there was almost no evidence against the defendants. The Court therefore relied on theFourteenth Amendment to reverse the convictions of what it believed were innocent men. The Courtwas also protecting minorities from brutality which was being tolerated by the States. (24)

Between the time of Brown v. Mississippi (25) and Miranda v. Arizona , (26) the due process standardwas applied in dozens of cases. During these years, the Court designated certain police practiceswhich weighed the "totality of the circumstances" against a finding of voluntariness andadmissibility--including physical force, threats of harm or punishment, lengthy periods of unlawfuldetention, solitary confinement, denial of food or sleep, and promises of leniency--and thereforewere constitutionally impermissible. (27) Typicalcharacteristics of the accused that were also takeninto consideration included youth, lack of education or intelligence, member of a racial minoritygroup, poverty, and mental or intellectual disabilities. (28)

The Precursor to Miranda

Miranda wove together threads from the case law regarding confessions beginning in the late1940's that provided the basis for significant changes in criminal law investigations and adjudicationup to the present time. These changes were designed to impose, among other things, uniform federalstandards 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 States (30) involved the murder of a federal revenue agent during a raid on anillegal still. Several Tennessee mountaineers with limited education were arrested by federal agentsbetween one and two o'clock in the morning and were subjected intermittently to prolongedquestioning over the next several days, which resulted in confessions by three of them. Theconfessions were admitted as voluntary and the defendants were convicted. The Court decided thatit was not necessary "...to reach the Constitutional issue pressed upon us" (31) because the case can beresolved by the "...exercise of its supervisory authority over the administration of criminal justicein the federal courts...." (32) Since the record leftno doubt that the questioning of the defendants didnot take place before a judicial officer in a timely fashion as required by procedures which Congresscommanded, 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 useof evidence so procured. But to permit such evidence to be made the basis of a conviction in thefederal courts would stultify the policy which Congress has enacted into law. (33)

Mallory v. United States

(34)

(35)

(36)

Mallory

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 ajudicial officer as quickly as possible so that he may be advised of his rights and so that the issue ofprobable cause may be promptly determined. The arrested person may, of course, be "booked" bythe police. But he is not to be taken to police headquarters in order to carry out a process of inquirythat lends itself, even if not so designed, to eliciting damaging statements to support the arrest andultimately his guilt. The duty enjoined upon arresting officers to arraign "without unnecessarydelay" 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 thestory volunteered by the accused is susceptible of quick verification through third parties. But thedelay 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 theywere 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 FifthAmendment privilegeagainst self-incrimination into the Fourteenth Amendment, thereby requiring the State governmentsto recognize the constitutional privilege against self-incrimination. (41) The Court pointed out that theFifth Amendment privilege against self-incrimination demands that the accused be free "of anyimproper influence" when he is considering whether to remain silent or make a statement. (42) TheCourt stated that under the Fifth Amendment test, "the constitutional inquiry is not whether theconduct of state officers in obtaining the confession was shocking, but whether the confession was'free and voluntary: that is, it must not be extracted by any sort of threats or violence, nor obtainedby 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 obtainingevidence 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 twoearly cases ( Wilson v. United States (46) and Powers v. United States ) (47) , it wasgenerally established thatwarnings were not required during pretrial interrogations as a requirement for the admission of adefendant's statements. (48) In the Wilson case, the Court held that the defendant's statementsdepended on their voluntariness, and since they were voluntarily made, the absence of warnings andcounsel would not warrant their exclusion. (49) Inthe Powers case, the Court reviewed again thewarnings issue but in constitutional terms. At the preliminary hearing, "... the defendant, withoutcounsel 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 hearingasked if he had worked at a still at another time and place. At first, the defendant refused to answerthe question, but responded affirmatively after being informed that unless he did so he would becommitted to jail. The deputy marshal recounted this admission at trial. The Court held thatrequiring the defendant to respond to questions under the threat of contempt at the preliminaryhearing did not exceed the proper limits, since he had waived his Fifth Amendment right byvoluntarily 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 federalprosecutions the right of the defendant to have counsel assigned by the court relates only toproceedings 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 defendantwas 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 wherethe defendant was asked to enter only a non-binding plea at the preliminary hearing, but hisnon-binding plea of guilty, though later withdrawn, was still used against him at trial. Subsequentto the Hamilton v. Alabama and White v. Maryland decisions, which recognized the rightto counselin well defined situations in pretrial judicial proceedings at the State level, the Court took aconsiderable step by extending the Sixth Amendment right to counsel to solely non-judicial pretrialsituations. (54)

In Massiah v. United States, (55) Massiah was indicted for federal narcotics violations, for whichhe retained counsel, pled not guilty and was released on bail. The codefendant, who unknown toMassiah, was cooperating with the authorities when he, with a radio transmitter in his car, invitedMassiah to discuss the pending case, and during their conversation in the car, Massiah's admissionswere 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 thismanner violated his Sixth Amendment right to counsel. The central point behind the decision wasthat statements obtained by federal agents from an indicted defendant who has counsel are, as amatter of course, inadmissible against him if obtained without counsel present. (56) The decision issignificant inasmuch as it is the initial expansion of the right to counsel to police interrogations andinvestigations.

In Escobedo v. Illinois , (57) five weeks after Massiah , Escobedo was taken into custody andquestioned 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 withEscobedo, told police that Escobedo had fired the fatal shots, so Escobedo was again arrested. Inthe course of questioning, Escobedo's repeatedly requested to consult with his attorney, who hadcome to the police station but was barred from seeing him. After the police arranged a confrontationbetween DiGerlando and Escobedo, Escobedo incriminated himself in the killing which wasadmitted at his trial. Deciding that the statements were inadmissible on the ground that Escobedohad been denied the Sixth Amendment right to counsel, the Court reversed the conviction. TheCourt's decision was limited to the facts of the case:

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 interrogationsthat lends itself to eliciting incriminating statements, (4) the suspect has requested and been deniedan opportunity to consult with his lawyer, and (5) the police have not effectively warned him of hisabsolute constitutional right to remain silent, the accused has been denied 'the Assistance ofCounsel' in violation of the Sixth Amendment to the Constitution as 'made obligatory upon theStates by the Fourteenth Amendment,' ... and that no statement elicited by the police during theinterrogation 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 anaccused's silence following accusations against him, which one would normally respond to, couldbe admitted at trial and made the basis for an adverse inference. (60) The prohibition of adversecomment regarding a defendant's decision to remain silent was rejected by most informedprofessional opinion; this was reflected in the formulation of the model rules of evidence. (61) Duringthe 1960s, six States allowed adverse comments to be made which stemmed from the silence by theaccused. (62) There were no decisions by the Courton this issue regarding the application of the FifthAmendment for the reason that the Amendment was not applicable to the States (63) until the Courtincorporated the Fifth Amendment and made it applicable to the states in Malloy v. Hogan (64) Duringthe following year, the Court addressed the Fifth Amendment in reviewing a State case (65) when itstruck down the provisions of California's constitution permitting comment by court and counselon a defendant's "...failure to explain or deny by his testimony any evidence or facts in the caseagainst him...." (66)

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 accusedclaimed his voluntary confession should be withheld because it was obtained after the police deniedhis 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 wasafforded opportunity to call his attorney." (68) TheCourt found support in the Betts v. Brady (69) rule thatdue 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'skidnapping and rape of an eighteen-year-old woman. Miranda confessed to the crime shortly afterbeing taken into custody. He made no request to consult with an attorney while being interrogatedbut 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 basedupon 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-custody (72) interrogation[s] ...." (73) The Court was cognizantof the police violence which could occur at that timeduring custodial interrogations because of the "incommunicado" nature of the proceedings. (74) TheCourt noted that, while police brutality of the early 1900s (75) was no longer the standard practice, thecommunity still needed protection against the "psychological rather than physically oriented"interrogation. (76) The Court believed that it wasnecessary to give this protection to suspects becauseall police interrogation manuals emphasized the need for privacy during the interrogation so that ineffect, "[t]he subject ... [was] deprived of every psychological advantage." (77) The Court referred totechniques and psychological tactics interrogators are instructed to use during an interrogation toobtain evidence from the suspect. (78) The Courtreasoned that the suspects needed the safeguardsbecause "[t]he circumstance surrounding in-custody interrogation can operate very quickly tooverbear the will of [the suspect] ..." (79) and withoutthem no statement can be considered the productof 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 accusedpersons of their right of silence and in assuring a continuous opportunity to exercise it ...." (80) Theserules apply "[a]t the outset", when the person is first subjected to interrogation while in custody atthe 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 toremain silent", so that those unaware may learn of this right and so that they will be able to overcomethe inherent pressures of the interrogation atmosphere. (82)

(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 makesure 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 duringinterrogation" 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 asmeaning 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 waivedhis privilege against self-incrimination and his right to retained or appointed counsel"; and "... avalid waiver will not be presumed simply from the silence of the accused after warnings are givenor 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 towhether 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 claimedhis privilege in the face of accusation." (89)

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 thatsuspects must knowingly and voluntarily waive their rights which in effect places an affirmative dutyon police officers to inform the accused of his/her rights. (90) (2) No decision prior to Miranda inconstruing 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 Michiganv. Mosely . (92) The Court in rejecting thestrict application of the Miranda safeguards to bar newinterrogations, reviewed the circumstances leading to the incriminating statements to determine whena suspect waives his rights. (93) The Court "...concluded that the admissibility of statements obtainedafter the person in custody has decided to remain silent depends under Miranda on whether his 'rightto cut off questioning' was 'scrupulously honored.'" (94) As for the application of the "scrupulouslyhonored" test, the majority concluded it was met on the facts of the case because "... the police hereimmediately ceased the interrogation, resumed questioning only after the passage of a significantperiod of time and the provision of a fresh set of warnings, and restricted the second interrogationto a crime that had not been a subject of the earlier interrogation." (95) Hence, the Court appeared tomove towards a less rigid approach, permitting limited renewed interrogations rather than an allinclusive Miranda coverage.

In 1977, the Court appeared to extend the Miranda rights in Brewer v. Williams . (96) In decidingthat the police violated the suspect's rights to counsel under Miranda , the Court stated that "... courts[should] indulge in every reasonable presumption against waiver...." (97) The Court noted that "... theright to counsel granted by the Sixth and Fourteenth Amendments means at least that a person isentitled to the help of a lawyer at or after the time that judicial proceedings have been initiatedagainst him-'whether by way of formal charge, preliminary hearing, indictment, information, orarraignment.'" (98) Being aware that a warrant hadbeen issued for his arrest, he had been arraignedon that warrant before a judge, and he had been committed by the court to confinement in jail, theCourt concluded "[t]here can be no doubt in the present case that judicial proceedings had beeninitiated ...." (99) The State has the burden ofproving 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) Ratherthan making waiver more difficult, the Court appeared to make it easier by allowing implicitwaivers. (102) Disregarding the rule that onlyexplicit waivers, either written or oral, are effective, theCourt placed emphasis on whether the accused waived his rights "knowingly and voluntarily" ratherthan the form of the accused's waiver. (103) Therefore, according to Butler , words and action may besufficient 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 todetermine if the waiver was voluntary. (105)

In 1981, the Court once more in Edwards v. Arizona , (106) redefined the requirements for aneffective waiver. The Arizona Supreme Court, in deciding the issue of voluntariness, applied thetotality of the circumstances test in finding that Edwards waived his rights when he voluntarily spokewith police after he had invoked his right to counsel during an interrogation the day before. (107) TheCourt reversed, holding "... that an accused, ... having expressed his desire to deal with police onlythrough counsel, is not subject to further interrogation by the authorities until counsel has been madeavailable to him, unless the accused himself initiates further communication, exchanges orconversations with the police." (108) The Courtfurther stated that police cannot "... reinterrogate anaccused in custody if he has clearly asserted his right to counsel." (109) It would appear as if the "clearlyasserted" language was an indication that there will be a requirement for a clear and precisestatement in order to invoke the right to counsel, which has the effect of overruling the "in anymanner" guidelines in Miranda . It also reveals the significance that the Court attaches to protectingthe right to counsel by requiring more than an incognizant waiver of that right; "... the accusedhimself [must] initiate[] further communication." (110) Opting for the stricter knowing and intelligentwaiver over the broader totality of circumstances test, the Court appeared to be seeking a way toaffirmatively 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 adefendant 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 that theimpetus must come from the accused, and not the officers. (114) Underthis test, any previous police-initiated interrogation must have ended prior to the suspect's allegedinitial remarks, since he/she cannot "initiate" an ongoing interrogation. (115) Second, if it is found thatthe defendant "initiated" further conversation, it must then be determined if the accused waived hisright to counsel and silence, "... that is, whether the purported waiver was knowing and intelligentand found to be so under the totality of the circumstances, including the necessary fact that theaccused, 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 toaddress an equivocal request for counsel. The Court noted that the issue was whether the accusedhad invoked his right to counsel so as to come within the Edwards test. (118) The Court recognized thethree 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 upto the request would render it ambiguous, all questioning must cease." (120) Hence, there appears tobe the implication that only unambiguous requests will be sufficient for the recognition of the rightto counsel. (121) However, the Court did notanswer the question.

In 1986, the Court in Michigan v. Jackson , (122) held that when the Sixth Amendment right tocounsel has attached, "... if police initiate interrogation after a defendant's assertion, at anarraignment or similar proceeding of his right to counsel, any waiver of the defendant's right tocounsel for that police-initiated interrogation is invalid." (123) The Court appeared to move toward alower limit for invoking the right to counsel. (124) The Court stressed the need for protecting asuspect's rights, stating that "... we presume that the defendant requests the lawyer's services at everycritical stage of the prosecution." (125) TheCourt's opinion that "... questions of waiver requires us togive a broad, rather than a narrow, interpretation to a defendant's request for counsel..." (126) appearsto have been an additional indication of the Court's willingness to accept ambiguous requests forcounsel.

In 1987, the Court in Connecticut v. Barrett , (127) acknowledged for the first time the issue of theambiguous request for counsel. (128) Though theConnecticut Supreme Court ruled that the ambiguousrequest for counsel amounted to an invocation to counsel for all purposes, the Supreme Courtconcluded otherwise stating: "Barrett's limited requests for counsel ... were accompanied byaffirmative announcements of his willingness to speak with the authorities. The fact that officialstook the opportunity provided by Barrett to obtain an oral confession is quite consistent with theFifth Amendment. Miranda gives the defendant a right to choose between speech and silence, andBarrett chose to speak." (129) Inasmuch as Barrettrefused to provide a written statement but would talkto the police, the Court said he only invoked a limited right to counsel. (130) The Court further statedthat "... Barrett made clear his intentions," he invoked his right to have counsel present during awritten 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 approachto the issue of ambiguous request for counsel. The holding in this case suggests that the approachtaken in Edwards v. Arizona (133) rather than Michigan v. Mosely (134) governs even when a subsequentinterrogation deals with a different and unrelated crime. (135) In holding that once a suspect invokesthe right to counsel, the police cannot initiate questioning, although the officers were not aware ofthe previous invocation (136) or if the questioningrelates to another crime, (137) the Court's objectivewasto 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 must cease, and officialsmay not reinitiate interrogation without counsel present, whether or not the accused has consultedwith his attorney." (140)

In 1994, the Court held in Davis v. United States , (141) that the privilege against furtherquestioning 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 lowercourts developed and followed one of threeapproaches. (144) Regarding thethreshold-of-clarity standard, "... an attempted invocation of the rightto counsel [would have to] satisfy a certain threshold of clarity before it [could] be consideredeffective." (145) The other standard, was the" per se invocation standard." (146) Under this standard, eachpost-warning reference to an attorney by the suspect was considered a per se invocation of the rightto counsel, and any questioning initiated by the police had to cease. (147) The third approach was theclarification standard. (148) Here, the courtspermitted the police to pursue the interrogation for thepurpose of clarifying the accused's intent following an ambiguous invocation of the right tocounsel. (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.Tucker (150) that:

"The [ Miranda decision] recognized that these procedural safeguards were not themselves rights protected by the Constitution but were insteadmeasures to insure that the right against compulsory self-incrimination was protected. ... Thesuggested safeguards were not intended to 'create a constitutional straightjacket,' ... but rather toprovide practical reinforcement for the right against compulsory self-incrimination." (151)

Miranda

Tucker

Miranda

(152)

Tucker

Miranda

Miranda

In New York v. Quarles, (153) police officers were approached by a woman who informed themthat she had been raped by an armed man, who had gone into a nearby supermarket. The policelocated the suspect in the supermarket where they arrested him; a frisk uncovered an empty shoulderholster, and the arresting officer asked him, "Where is the gun?" The suspect gestured toward astack of soap cartons and said, "The gun is over there," and the police found the revolver behind thecartons. The state courts excluded Quarles' response identifying the location of the gun he haddiscarded because he had not been given the Miranda warnings. (154) The Court reversed andconcluded 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 lackof Miranda warnings implied that a violation of the Fifth Amendment had occurred. (156) The Courtdescribed Miranda as a majority which was willing to impose procedural safeguards "... when theprimary social cost of those added protections is the possibility of fewer convictions," which shouldbe distinguished from the Quarles case whereby the harm would be the incapability "... to insure thatfurther danger to the public did not result from the concealment of the gun in a public area." (157) Thusthe Court concluded "... that the need for answers to questions in a situation posing a threat to thepublic safety outweighs the need for the prophylactic rule protecting the Fifth Amendment'sprivilege against self-incrimination." (158) Tohold otherwise, the Court in Quarles said police officerswould be "... in the untenable position of having to consider, often in a matter of seconds, whetherit best serves society for them to ask the necessary questions without the Miranda warnings andrender whatever probative evidence they uncover inadmissible, or for them to give the warnings inorder to preserve the admissibility of evidence they might uncover but possibly damage or destroytheir 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 heldthat 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 voluntarytestimony." (161) In arriving at this conclusion,the Court once more rejected the concept that aviolation 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 theabsence 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 justifyan 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 thecharged sale of heroin to the undercover agent. He countered the officer's testimony as to the salewith testimony that he had sold the officer what appeared to be heroin, but the bags contained onlybaking powder. The prosecutor was allowed to impeach the defendant's credibility by referring toa 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 canbe usedat trial for impeachment regardless of the contrary dictum in the Miranda case. (164) This raised theissue of whether a defendant's silence during custodial interrogation can be used for impeachmentpurposes, in view of the dictum in Miranda (165) advancing the concept that the prosecution cannot usethis silence at trial.

In Doyle v. Ohio , (166) the Court held that impeachment by the defendant's post-arrest silence afterhe had received the Miranda warnings was impermissible. The Court said not only is "... everypost-arrest silence ... insolubly ambiguous because [it] ... may be nothing more than the arrestee'sexercise of [his/her] Miranda rights," (167) but also, use of the silence to impeach "... would befundamentally unfair and a deprivation of due process...." considering the fact that the warnings carrythe 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 receiptof governmental assurances that he will suffer no adverse consequences of any sort for remainingsilent. (170) However, "... Doyle doesnot apply to cross-examination that merely inquires into priorinconsistent statements." (171) This "questioning[process] makes no unfair use of silence, because adefendant who voluntarily speaks after receiving Miranda warnings has not been induced to remainsilent." (172)

In Jenkins v. Anderson , (173) where at his murder trial, the defendant claimed self defense, theCourt decided that it was permissible to impeach that story by the defendant's prearrest silence innot reporting the murder to the police for at least two weeks. Likewise, in Fletcher v. Weir , (174) theCourt followed the rationale of Jenkins and made a distinction between Doyle in allowingimpeachment by the use of post-arrest silence which was not proceeded by Miranda warnings,reasoning that this was not "... a case where the government had induced silence by implicitlyassuring the defendant that his silence would not be used against him." (175) In effect, the Court heldthat the silence of a suspect in custody prior to his receipt of Miranda warnings can be admitted forimpeachment 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 warningsduring the period in which he remained silent immediately after hisarrest.... (176)

In Jenkins , as in other post- Doyle cases, we haveconsistently explained Doyle as a case where the government had induced silence by implicitlyassuring the defendant that his silence would not be used againsthim.... (177)

In the absence of the sort of affirmative assurancesembodied in the Miranda warnings, we do not believe that it violates due process of law for a stateto permit cross-examination as to postarrest silence when a defendant chooses to take thestand." (178)

Overcoming the McNabb/Mallory Rule

18 U.S.C. ï¿½ 3501 (179) was meant to overrulethe exclusion of voluntary confessions due to theCourt's ruling in McNabb v. United States, (180) and Mallory v. United States . (181) The Senate JudiciaryCommittee 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, mechanicalexclusion of an otherwise voluntary and competent confession [and it] is a very high price to pay fora 'constable's blunder'." (182)

The rationale of 18 U.S.C. ï¿½ 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. Thetraditional right of the people to have their prosecuting attorneys place in evidence before juries thevoluntary confessions and incriminating statements made by defendants simply must berestored. (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 voluntaryconfession... could not be used in evidence unless a fourfold warning had beengiven.... (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 wasforcefully shown by the four dissenting justices, who also predicted the dire consequences ofoverruling 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 renditionof this 5-to-4 opinion, the "totality of circumstances" had been the test in our State and Federalcourts 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 theConstitution, and that the sole test of admissibility should be "totality of circumstances" as bearingon 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 promoteefficient enforcement of our criminal laws. By the express provisions the proposed legislation thetrial judge must take into consideration all the surrounding circumstances in determining the issueof voluntariness, including specifically enumerated factors which historically enter into such adetermination. Whether or not the arrested person was informed of or knew his rights beforequestioning 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 confessionsand incriminating statements would be declared unconstitutional, on the ground that the provisionsdo not measure up to the rigid standards set forth in Miranda. The committee is also aware that theopinions of the four dissenting Justices clearly indicate that neither of them would consider theseprovisions 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 opinionin this country is that the voluntariness test does not offend the Constitution or deprive a defendantof any constitutional right. No one can predict with any assurance what the Supreme Court mightat some future date decide if these provisions are enacted. The committee has concluded that thisapproach to the balancing of the rights of society and the rights of the individual served us well overthe years, that it is constitutional and that Congress should adopt it, After all, the Miranda decisionitself was by a bare majority of one, and with increasing frequency the Supreme Court has reverseditself. The committee feels that by the time the issue of constitutionality would reach the SupremeCourt, the probability rather is that this legislation would beupheld. (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-hourperiod 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 notto be considered inadmissible by a delay in presentment. (191) It should also be noted that whenCongress enacted the statute, it did not intend for every confession made after the six-hour periodto be inadmissible. (192) Therefore, it wouldappear that 18 U.S.C. ï¿½ 3501(c) has in effect rejected the McNabb/Mallory rule for confessions obtained within six hours of arrest or detention. However, thiswill not be definitively determined until a case comes before the Court which involves a confessionmade 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, section3501 also stemmed from congressional reaction to Miranda . (193) It was stated that "[t]he legislationwas designed to overrule Miranda v. Arizona and certain other decisions that were perceived to bedetrimental to law enforcement." (194) The SenateReport provided that "... crime will not beeffectively abated so long as criminals who have voluntarily confessed their crimes are released onmere technicalities." (195) It also viewed therequirements of Miranda as "... rigid and inflexiblerequirements [and they were] unreasonable, unrealistic, and extremely harmful to lawenforcement." (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 incumbentAdministration. Upon signing the Omnibus Crime Control and Safe Streets Act of 1968, PresidentJohnson indicated in his statement that he did not believe section 3501 was constitutional as it wasintended 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 criminaltrials--which account for only 7 percent of the criminal felony prosecutions in this country. Theprovisions 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 toconform to the Constitution.

Under long-standing policies, for example, the Federal Bureau of Investigation and other Federal law enforcement agencies have consistently given suspectsfull and fair warning of their constitutional rights. I have asked the Attorney General and theDirector of the Federal Bureau of Investigation to assure that these policies willcontinue." (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 whichsection 3501 had on the Administration, this probably provided the basis for it not being usedimmediately 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.ï¿½3501 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 applythe statute in lieu of Miranda's requirements without the Supreme Court first reconsidering Miranda . (204) The Department alsosaid that "[t]he Supreme Court ... is the final authority on thescope and interpretation of constitutional provisions, and when ... the Court has announced aconstitutional rule based on its authority to explicate the Constitution, the Executive cannot properlyurge 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. Dickerson (206) decided that a confessionis voluntary under the criteria set forth in 18 U.S.C. ï¿½3501 and it is admissible in evidence in federalcriminal trials even if the requirements of Miranda are not satisfied. In the 2-1 ruling, the paneldecided that the statute superseded the landmark ruling in Miranda. The Fourth Circuit identifiedthe principal issue as whether the Miranda warnings are required by the Fifth Amendment. If theyare 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 eliminateas it sees fit. (207) If on the other hand, the FifthAmendment mandates the warnings, Congress can'tmodify it through the enactment of 18 U.S.C. ï¿½ 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 andto remain silent. (208) It also decided that section3501 was enacted under Congress' "... legislativeauthority ... to prescribe the rules of procedure and evidence in the federal courts." (209) The FourthCircuit, sitting en banc , could vacate the panel's decision or it may be appealed to the SupremeCourt. Until such time, federal law enforcement officials in the Fourth Circuit who fail to advisedefendants 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 oppositionfrom federal prosecutors around the nation. In urging the Court to hear the case, Attorney GeneralJanet Reno and Solicitor General Seth Waxman recommended that the Court reaffirm Miranda forthe 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 States (212) that the police are stillrequired to give the Miranda warnings. The Court said that the Miranda warnings are morethanprophylactic; the decision in itself represents rights which are protected from unwarrantedinterrogation under the Fifth Amendment in state and federal courts. (213) Writing for the Court, ChiefJustice Rehnquist stated that " Miranda announced a constitutional rule that Congress may notsupersede legislatively" (214) by enacting a longignored 1968 law know as Section 3501. In conformitywith 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 whohad been staying at the family home. The police said she arranged to have her home burned to coverup the death of her 12-year-old son, who had cerebral palsy. Seibert had been worried that she wouldbe 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 tocover up the death of her son. After a 20-minute break, police read the Miranda warning, thenturned 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 theruling.

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 noteda growing and worrisome trend in this technique found in many national police training manuals andclasses. (219) As a result, the practice raised theissue of whether the rule established in Oregon v.Elstad, (220) that a suspect who has onceresponded to unwarned yet uncoercive questioning is notthereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings, is abrogated when the initial failure to give the Miranda warnings wasintentional?

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 waswhether the intervening Miranda warnings, when considered in conjunction with the police officer'sprewarning questions and the admissions already made by the defendant, were effective in advisingthe 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 thestation house; the questioning was "systematic, exhaustive, and managed with psychological skill";the prewarning interrogation caused the suspect in a substantial manner to incriminate herself; andthe interrogating police officer did nothing to remedy the defendant's likely misimpression that herprewarning statements would be used against her. These facts, said the plurality, served todistinguish 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 inconcurrence wrote that "...the plurality's approach in practicewill function as a 'fruits' test." (223) Justice Breyerwould also apply "... the following simple rule...tothe two-stage interrogation technique: Courts should exclude the 'fruits' of the initial unwarnedquestioning 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 postwarningstatements should continue to be governed by theprinciples of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-stepstrategy has been used, postwarning statements that are related to the substance of prewarningstatements must be excluded unless curative measures are taken before the postwarning statementis made. Curative measures should be designed to ensure that a reasonable person in the suspect'ssituation would understand the import and effect of the Miranda warning and of the Miranda waiver." (226) In other words, the Court left thedoor open for police to use some confessions obtainedafter double interviews by proving the interrogation was not done "... in a calculated way toundermine the Miranda warning." (227)

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 notapply; and the subjective intent of the interrogating officer cannot be easily determined and may bemore 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 courtsdeciding on admissibility of such statements, she wrote, "... will be forced to conduct the kind ofdifficult, state-of-mind inquiry that we normally take pains to avoid." (229) As opposed to the testadopted by the plurality, the dissent would adopt a different test. If the prewarning admissions wereinvoluntary, 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 mustexaminewhether the taint dissipated through the passing of time or a change in circumstances" and (b) if thepostwarning 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 Dickersonv. 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 traininginstructions what Dickerson held Congress could not do by statute." (232)

In United States v. Patane (233) the police officers failed to give the defendant Miranda warningsafter arresting him for violating a restraining-order and before questioning him about a weaponwhich was recovered based on the defendant's voluntary statement that he possessed it. Thedefendant interrupted the police before they could finish giving him his Miranda rights, assertingthat he knew his rights. The Court considered the issue of whether the failure to properly Mirandizethe defendant requires the suppression of the physical evidence which was obtained as a result of theinadmissible, though uncoerced, questioning. The 10th Circuit ruled in Patane's favor, concludingthat the confiscated gun could not be used as evidence in court. The 10th Circuit based its decisionon 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 abusetheir power to get suspects to confess.

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 alsoapplied to confessions obtained in violation of a defendant's 5th Amendment protection againstself-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 settlea disagreement that had arisen between the 10th Circuit and other circuit courts over the past fewyears.

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 lastterm decision in Chavez v. Martinez, (234) which held that the Self-Incrimination Clause in the FifthAmendment is not violated until a defendant's self-incriminating statements are sought to beadmitted at trial. (235) Because the failure toprovide Miranda warnings is not itself a constitutionalviolation, there is no justification for fashioning a "fruit of the poisonous tree" doctrine in thiscontext 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 thejustifications for admission in prior cases in which the Court had permitted the admission ofevidence obtained during an unwarned interrogation. However, unlike the plurality, Justice Kennedyfound 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, orwhether thereis '[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 Self-Incrimination Clause addresses theadmissibility of nontestimonial evidence. (238) The real issue, Justice Souter wrote, is whether a "fruitof the poisonous tree" doctrine should be applied lest we create an incentive for the police to omit Miranda warnings. (239) "In closingtheir eyes to the consequences of giving an evidentiary advantageto those who ignore Miranda , the majority adds an important inducement for interrogators to ignorethe rule in that case." (240) Justice Breyerdissented separately, writing that he would extend the "fruitof the poisonous tree approach" to the instant case. (241)

In Yarborough v. Alvarado , (242) Detective Cheryl Comstock informed Maria Alvarado that herson, Michael, may have seen something or known something about an incident that had happenedand could help with the investigation. Detective Comstock picked up Mrs. Alvarado and herhusband along with 17-year-old Michael and went to the sheriff's station for the interview atapproximately 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 September22, 1995, which left Francisco Castaneda dead from a bullet wound. Comstock never told Michaelthat he was under arrest and did not give him Miranda warnings explaining his 5thAmendmentprivileges against self-incrimination. Nor was Michael given a statement to sign indicating that hewas 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" atMichael's story and told him she had witnesses who had said "quite the opposite," Michael startedrelaying details of the shooting and the hiding of the gun. It was only after Michael began divulgingthis information that Detective Comstock informed him he would be free to go home after theinterview.

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 sawCastaneda's truck and attempted to steal it. Soto went to the driver's side of the truck while Michaelapproached 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. Theprosecution 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 juvenilewho had never been arrested and had no prior experience with law enforcement officials, andbecause his parents brought him to the sheriff's station and were not allowed to be present duringthe interrogation, Alvarado was objectively "in custody" when he was questioned. The court did notbelieve that "a reasonable 17-year-old in Alvarado's position would have felt free to terminate theinterview and leave, and ruled that the improper admission of Michael's incriminating statementsby 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 incustody 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 wasnot was "unreasonable." The majority, in considering all of the facts, believed that it was notunreasonable for the courts to conclude that he was not in custody: The police did not transport himto the station, require him to appear at a particular time, threaten him or suggest he would be placedunder arrest; Alvarado's parents remained in the lobby during the interview, suggesting that theinterview would be brief; police appealed to Alvarado's interest in telling the truth and being helpfulto a police officer; police twice asked Alvarado if he wanted to take a break; and, at the end of theinterview, 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'sdecision 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 thefollowing question and facts: "what reasonable person in the circumstances-brought to a policestation by his parent at police request, put in a small interrogation room, questioned for a solid twohours, and confronted with claims that there is strong evidence that he participated in a seriouscrime, could have thought to himself, 'well, anytime I want to leave I can just get up and walkout?'" (246)

In Fellers v. United States , (247) the Supreme Court was contending with standards governing theadmissibility of statements that emerge from two different constitutional protections: (1) a "custodialinterrogation" 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 theadmissibility of statements made in the absence of counsel or a waiver of counsel. The Court heldthat officers who went to the home of an indicted defendant to execute an arrest warrant violated hisright 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 warrant following a federal indictment. He madeincriminating statements before being advised of his rights, in response to comments by the policeofficers that he had been indicted and they were there to discuss both the amphetamine indictmentin which he was charged and his association with other suspects. He was later Mirandized at thepolice station and reiterated his admissions. The Eighth Circuit, while acknowledging that thedefendant's incriminating statements made in response to questioning at the time of the arrest mustbe 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 notamount to "a post-indictment interview" with the defendant (in violation of his Sixth Amendmentright 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 States (248) was notviolated because he was not interrogated by government agents when the proper standard underSupreme Court precedent is whether the government agents deliberately elicited information fromhim, 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 anillegal 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 hisjailhouse statements should have been suppressed as fruits of the statements taken from him at hishome. (249) Under the Sixth Amendment,"deliberate elicitation" is the proper standard, not whetherthere was "interrogation." (250) Here, the officersdeliberately elicited a response by Fellers after hehad been indicted, outside of his counsel's presence, and without any waiver of his SixthAmendment rights. (251) This violates Massiah v. United States . (252) Asa result, the correct exclusionaryrule analysis is under Massiah, and not Miranda . (253) The difference between Massiah and Oregonv. Elstad (254) 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 Eighth Circuitwas directed to consider the issue of whether the Sixth Amendment's exclusionary rule allows anexception 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 defendantwho has been formally charged outside of his counsel's presence does not have to rise to the levelof 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 presenceof counsel, the Court said the Court of Appeals should address this issue on remand, considering theruling that the first questioning was unconstitutional. (256) The Court appears to recognize that indictedindividuals 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 until1964, (257) its relevance to the admissibility ofpretrial statements was limited to federal proceedings. In the earliest cases, beginning in the late nineteenth century, issues of admissibility were decidedon 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 therequirements 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 wereconsidered extreme were held to be inadmissible pursuant to the Fourteenth Amendment due processclause. The germinal case, Brown v. Mississippi , in which the Court overturned a murder convictionbased upon a confession that had been obtained through torture (hanging and whipping) wasconsidered 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 decisionwas 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 rightof the accused to be advised by his lawyer of his privilege against self-incrimination."

Two of the most famous elements of Miranda are the Court's creation of a per se right toconsult with counsel during interrogation, and its creation of a per se right to be informed that theprivilege applies at the police station. The third most famous element of Miranda is the Court'sdetermination that "prophylactic" rules are necessary to reduce the inherent coercion which isprevalent 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 courtshave adopted one of three approaches: the threshold-of-clarity standard, the " per se invocationstandard," and the clarification standard. (258) When the Court addressed the issue in Davis v. UnitedStates , many observers were surprised when it chose the clarification standard which allowed thepolice 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 perceivedto be detrimental to law enforcement.

The Court's decision in Michigan v. Tucker appeared to declare that the Miranda safeguardsare no longer viewed as rights protected by the Constitution; they were considered as Court imposedprocedural 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 warningsappeared to be stronger than at any time in their controversial history. However, considering thedecisions in the four cases (Seibert, Patane, Fellers, and Alvarado) which were decided during the2003-2004 term of the Court (with two favoring law enforcement and the other two placingadditional restrictions on the police), it is difficult to determine what the current limits are withregards to the guarantees under the Miranda decision.