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This case is about the relationship between rights and remedies. While it is an old maxim that rights must have remedies, see, e.g.,Marbury v. Madison, 1 Cranch (5 U. S.) 137, 163 (1803), this does not "establish that the individual's protection must come in the form of a particular remedy." Nixon v. Fitzgerald, 457 U. S. 731, 755, n. 37 (1982). In the Fifth Amendment's self-incrimination privilege, the remedy, excluding incriminating statements, is part of the right. Because a Fifth Amendment violation is not completed until incriminating statements are improperly admitted, exclusion is the sole remedy. The procedural due process right against the use of involuntary confession operates in the same way. Civil remedies for interrogation are limited to violations of substantive due process. This involves extreme behavior like torture, threats of violence, or the deprivation of food, water, or sleep. Because substantive due process was not violated in this case, there is no civil remedy for the interrogation.
The Ninth Circuit's Fifth Amendment holding centers on the theory that a Fifth Amendment violation occurs at the moment of "compulsion" at the police station. See Martinez v. City of Oxnard, 270 F. 3d 852, 856-857 (CA9 2001). This premise is fundamentally erroneous.
The Fifth Amendment's self-incrimination privilege is not a right to be free from compulsion, but rather from compelled self-incrimination. The Fifth Amendment privilege is essentially an exclusionary rule. Although the legislative history of the Fifth Amendment adds little to our understanding of the privilege, see United States v. Balsys, 524 U. S. 666, 674, n. 5 (1998), the text demonstrates that the self-incrimination privilege centers on the use of evidence in the criminal trial. "No person . . . . shall be compelled in any criminal case to be a witness against himself . . . ." U. S. Const., Amdt. 5. The privilege applies to attempts to compel in proceedings other than the criminal trial, see Lefkowitz v. Turley, 414 U. S. 70, 77 (1973), but the scope of the privilege is still limited to actual incrimination. See id., at 77.
Therefore, while compulsion is a necessary condition for a Fifth Amendment violation, it is not a sufficient condition for the self-incrimination privilege. If the threat of incrimination is eliminated, then the government can compel a witness to testify. See Kastigar v.United States, 406 U. S. 441, 448-449 (1972). Similarly, a prison disciplinary board may draw negative inferences from the prisoner's silence at the disciplinary hearing when that silence is not used in any criminal proceeding. See Baxter v. Palmigiano, 425 U. S. 308, 317-318 (1976). Where there is no threat of incrimination, the privilege is unnecessary.
The act of being interrogated can have adverse consequences other than self-incrimination, but this is irrelevant to the Fifth Amendment analysis. In Brown v. Walker, 161 U. S. 591 (1896), a grand jury witness invoked the privilege with regard to questions concerning crimes for which he could not be held liable. See id., at 609. Justice Field's dissent contended, "The [Fifth] amendment also protects him from all compulsory testimony which would expose him to infamy and disgrace, though the facts disclosed may not lead to a criminal prosecution." Id., at 631. This majority rejected that argument.
"The design of the constitutional privilege is not to aid the witness in vindicating his character, but to protect him against being compelled to furnish evidence to convict him of a criminal charge. If he secure himself legal immunity from prosecution, the possible impairment of his good name is a penalty which it is reasonable he should be compelled to pay for the common good." Id., at 605-606.
This is "black letter law . . . ." Pillsbury Co. v. Conboy, 459 U. S. 248, 273 (1983) (Blackmun, J., concurring in the judgment).
"[T]he privilege itself is defined in terms of the incriminating effect of truthful testimony . . . ." United States v. Apfelbaum, 445 U. S. 115, 134 (1980) (Blackmun, J., concurring in the judgment) (emphasis in original). It is only violated when evidence is improperly admitted at trial. "The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. [Citation.] Although conduct by law enforcement officials prior to trial may ultimately impair that right, a constitutional violation occurs only at trial." United States v. Verdugo-Urquidez, 494 U. S. 259, 264 (1990) (emphasis added). Although dicta, theVerdugo-Urquidez statement is the correct rule of law.
The Fifth Amendment privilege "is an exclusionary rule--and a constitutionally created one." Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L. J. 1198, 1214 (1971) (emphasis in original). Because the privilege is not violated until the improper admission of self-incriminating testimony, exclusion is the only proper means to enforce the Fifth Amendment. If there is no evidence to exclude or no criminal trial to exclude it from, then there is no violation of the privilege. In that event, there is nothing to "remedy." This differs from the Fourth Amendment's exclusionary rule. Fourth Amendment violations are complete before trial, at the time of the illegal search. See Verdugo-Urquidez, 494 U. S., at 264. The Fourth Amendment exclusionary rule is a judicially constructed remedy intended to deter police from violating that right. See United States v. Leon, 468 U. S. 897, 906 (1984). Exclusion of evidence is not a remedy for past violations of the Fifth Amendment privilege; itis the right itself.
In addition to comporting with constitutional text and this Court's precedents, denying civil liability for Fifth Amendment violations is the fairer approach. While police officers may produce an inadmissable statement through improper interrogation, the confession cannot be unconstitutionally admitted without the acquiescence of the trial judge and the prosecutor. These actors, with far more expertise in Fifth Amendment admissibility issues, are absolutely immune from civil liability for the improper admission of evidence at trial. SeeImbler v. Pachtman, 424 U. S. 409, 427-428 (1976) (prosecutors); Pierson v. Ray, 386 U. S. 547, 554-555 (1967) (judges). Police officers would be left holding the bag although the more responsible actors are immune. Cf. Duncan v. Nelson, 466 F. 2d 939, 942 (CA7 1972) (police officers who coerced the confession were not the proximate cause of its admission because they could not foresee that the judge would admit it).
The Ninth Circuit's decision that the Fifth Amendment self-incrimination privilege can be violated even though the suspect was never incriminated relies on Fifth Amendment policy. See Martinez v. City of Oxnard, 270 F. 3d 852, 857 (CA9 2001). It followed Ninth Circuit precedent holding that one purpose of the Fifth Amendment "is to prevent coercive interrogation practices that are 'destructive of human dignity.' " Ibid. (quoting Cooper v. Dupnik, 963 F. 2d 1220, 1239 (CA9 1992) (en banc) (quoting Miranda v. Arizona, 384 U. S. 436, 457 (1966)). This is an unwarranted extension of Miranda. Like the Fifth Amendment it serves, Miranda is a trial right. It does not support a civil remedy because it is inseparable from the exclusion of evidence. See part II, infra. The Ninth Circuit's holding is also an improper application of extraneous policy to the self-incrimination privilege. The only policy behind the privilege is found in its text, preventing self-incrimination at trial. While a source of other Fifth Amendment policies exists, it has been diminished, and does not justify expanding the Fifth Amendment.
An often quoted statement of policy justifications for the Fifth Amendment privilege is found in a famous passage from Murphy v.Waterfront Comm'n, 378 U. S. 52 (1964). That passage lists numerous policy justifications for the privilege, including rationales as diverse as a "sense of a fair play" and "respect for the inviolability of the human personality . . . ." See id., at 55. This collection of policies does not justify expanding the Fifth Amendment beyond its exclusionary rule.
Murphy is a diminished precedent. Its examination of the historical treatment of the relationship between the threat of foreign prosecution and the self-incrimination privilege has been overruled. See Balsys v. United States, 524 U. S. 666, 687-688 (1999). Balsysalso critically reexamined the Murphy policies. In Balsys, the Justice Department's Office of Special Investigations (OSI), "which was created to institute denaturalization and deportation proceedings against suspected Nazi war criminals," was investigating Balsys. Seeid., at 670. The OSI asked Balsys about his wartime activities between 1940 and 1944, but he invoked the self-incrimination privilege, claiming a fear of prosecution in a foreign nation. Id., at 669. This Court rejected that claim.
In addition to rejecting Murphy's use of history to support Balsys' position, the Balsys Court also declined to rely on Murphy's list of Fifth Amendment principles in order to expand the privilege. This Court established that "at its [the Fifth Amendment's] heart lies the principle that the courts of a government from which a witness may reasonably fear prosecution may not in fairness compel the witness to furnish testimonial evidence that may be used to prove his guilt." Id., at 683. The policies and aspirations listed in Murphy did not justify expanding the privilege beyond that principle: "we think there would be sound reasons to stop short of resting an expansion of the Clause's scope on the highly general statements of policy expressed in . . . . Murphy. While its list does indeed catalog aspirations furthered by the Clause, its discussion does not even purport to weigh the host of competing policy concerns that would be raised in a legitimate reconsideration of the Clause's scope." Id., at 691.
Of particular importance is how this Court dealt with one of the broadest of the Murphy policies, "the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life' . . . ." 378 U. S., at 55. If allowed to define the scope of the Fifth Amendment privilege, this principle "would necessarily seem to include protection against the Government's very intrusion through involuntary interrogation." Balsys, 524 U. S., at 691. Since " 'inviolability' is after all, an uncompromising term," then as with the Fourth Amendment, breaches would occur "at the moment of illicit intrusion, whatever use may or may not be made of their fruits." Id., at 692. This Court refused to stretch the self-incrimination privilege beyond its traditional boundary. "The Fifth Amendment tradition, however, offers no such degree of protection." Ibid. The immunity cases demonstrated that the privilege allows testimony to be compelled so long as the compulsion is accompanied by an appropriate protection from incrimination. See ibid. Personal inviolability is simply inconsistent with Fifth Amendment practice and precedent. "Thus, what we find in practice is not the protection of personal testimonial inviolability, but a conditional protection of testimonial privacy subject to basic limits recognized before the framing and refined through immunity doctrine in the intervening years." Id., at 692-693 (footnote omitted). This conditional testimonial privacy is enforced through the exclusion of evidence, and not through civil liability. The Ninth Circuit's notion that the privilege can be violated without actual incrimination cannot be reconciled with Balsys.
Since many of the Murphy values are either too vague to be meaningful or restatements of the privilege, see Gardner, Section 1983 Actions Under Miranda: A Critical View of the Right to Avoid Interrogation, 30 Am. Crim. L. Rev. 1277, 1312 (1993), analyzing each of them is unnecessary. In addition to human dignity, two other values have been suggested as being central to the self-incrimination privilege--preserving evidentiary reliability and protecting the accusatorial nature of the system. See ibid. Neither supports expanding the Fifth Amendment beyond its exclusionary rule.
Evidentiary reliability is protected by the Fifth Amendment's exclusionary rule. The threat of civil liability adds nothing, particularly since the prosecutors that submit and the judges who admit the incriminating statements are immune from liability. See supra, at 9. Also, many police-initiated Fifth Amendment violations will not be unreliable. Police interrogation is subject to the Fifth Amendment through Miranda v. Arizona, 384 U. S. 436 (1966). Miranda's presumption excludes both reliable and unreliable confessions, see infra, at 14, thus reducing the marginal benefit to reliability. Imposing civil liability for noncompliance with the Miranda procedures regardless of whether the confession obtained is reliable will add little or nothing to the reliability of evidence.
The accusatorial nature of our system does not change the fact that police interrogation is indispensable to it. See Schneckloth v.Bustamonte, 412 U. S. 218, 225 (1973). Even more importantly, creating a civil remedy will not give any added protection to the accusatory system. The Fifth Amendment's exclusionary rule prevents the prosecution from taking any unfair advantage of a Fifth Amendment violation. Welding a civil remedy onto the Fifth Amendment serves no purpose other than to discourage interrogation.
It is important to place the cost of this over-deterrence in its proper context. A major consequence of the Miranda decision is a significant decrease in the frequency of confessions obtained by police. See, e.g., Cassell & Hayman, Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda, 43 UCLA L. Rev. 840, 917 (1996); Cassell, Miranda's Social Costs: An Empirical Reassessment, 90 Nw. U. L. Rev. 387, 416-418 (1996). Potential voluntary confessions were lost because police either scrupulously followed Miranda or even went beyond the Miranda requirements. See Cassell & Hayman, supra, at 920. Civil liability for Fifth Amendment violations compounds this cost by adding more over-deterrence to the system. Miranda already makes police stop short of the actual constitutional limit of permissible interrogation. Adding civil liability will move them even further away, allowing the guilty to go free, and innocent suspects to remain under suspicion. See Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 680-681 (1968) ("A man in suspicious circumstance but not in fact guilty is deprived of official interrogation of another whom he knows to be the true culprit . . .").
Balsys provides the best approach to defining the Fifth Amendment's scope. The privilege should remain grounded in its primary purpose, preventing the government from using compelled testimony to prove the suspect's guilt. A civil remedy adds nothing to this goal while harming society by unnecessarily deterring police interrogation of suspected criminals. As in Balsys, precedent, constitutional text, and practicality all argue against expanding the Fifth Amendment.
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September 2002