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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF) ⁽¹⁾ is a non-profit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the due process protection of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

Interrogating suspects is an integral part of criminal investigation. A proper interrogation regime is essential to a system that seeks to punish the guilty, protect the innocent, and preserve the rights of all. Creating an elaborate system of civil liability for interrogation that is contrary to the rules of Miranda v. Arizona, 384 U. S. 436 (1966) or the subjective, difficult to define due process voluntariness standard is regulatory overkill. It would needlessly deter police from interrogating suspects, resulting in lost voluntary confessions and the unwarranted compensation of those who have suffered no real harm. This is contrary to the interests of justice and society that the CJLF was formed to advance.

SUMMARY OF FACTS AND CASE

On November 28, 1987, the plaintiff, Oliverio Martinez, was stopped and frisked by police officers Maria Peña and Andrew Salinas as the officers were investigating drug activity in Oxnard, California. See Martinez v. City of Oxnard, 270 F. 3d 852, 854 (CA9 2001). Officer Salinas found a knife in Martinez's waistband during the frisk, and a struggle ensued. At one point during the struggle, Officer Salinas cried out " 'He's got my gun.' " Ibid. Officer Peña drew her weapon and fired on Martinez several times, severely injuring him. See ibid.

The patrol supervisor, Sergeant Ben Chavez, soon arrived at the scene. He rode in the ambulance with Martinez in order to get his version of what happened. See ibid. At the hospital, Sergeant Chavez started a taped interview with Martinez as emergency room personnel began treatment. See ibid. The interview lasted over 45 minutes, but the transcript of the recorded conversations totaled approximately 10 minutes. See id., at 854-855. Medical staff asked Sergeant Chavez to leave the trauma room several times, but he returned and continued questioning. See id., at 854. Most of Martinez's responses to the questioning were complaints about his physical condition, such as his pain or his inability to move his legs, or repeated requests for treatment. See id., at 855. Martinez twice stated that he did not want to talk anymore. See ibid. During the interview, he "drifted in and out of consciousness." See ibid. "Martinez's statements were not used against him in a criminal proceeding," id., at 857, because he "was not charged with a crime as a result of the incident." See District Court Order Granting in Part and Denying in Part Plaintiff's Motion for Summary Adjudication, Part III (Aug. 1, 2000), App. to Pet. for Cert. 16a.

Martinez filed suit under 42 U. S. C. §1983, alleging that the defendants violated his constitutional rights "by stopping him without probable cause, using excessive force, and subjecting him to a coercive interrogation while he was receiving medical care." Martinez, 270 F. 3d, at 855. The District Court denied Sergeant Chavez's qualified immunity defense and "granted summary judgment for Martinez on his claim that Chavez violated his Fifth and Fourteenth Amendment rights by coercing statements from him during medical treatment." Ibid. (footnote omitted). Chavez brought an interlocutory appeal, claiming that he was entitled to qualified immunity. Ibid. The Ninth Circuit denied the appeal, holding that the questioning violated Martinez's Fifth Amendment rights, "[e]ven though Martinez's statements were not used against him in a criminal proceeding . . . ." Id., at 857. The Ninth Circuit also held that the interrogation violated the due process proscription against coerced confessions, and that for this right the " 'violation is complete with the coercive behavior itself . . . .' " Ibid. (quoting Cooper v. Dupnik, 963 F. 2d 1220, 1244-1245 (CA9 1992) (en banc)). It concluded that "[i]n light of the extreme circumstances of this case, a reasonable police officer in Sergeant Chavez's position could not have believed that the interrogation of suspect Martinez comported with the Fifth and Fourteenth Amendments," and it affirmed the District Court decision to deny qualified immunity. See id., at 859.

SUMMARY OF ARGUMENT

The Fifth Amendment self-incrimination privilege does not support a civil rights action. By its own terms it is an exclusionary rule that is only violated by the admission of compelled incriminating testimony. Because the violation is not complete until self-incriminating statements are improperly admitted, the Fifth Amendment cannot be violated during interrogation. As the immunity cases demonstrate, the Fifth Amendment does not create a right to be free from questioning under compulsion, but only a right to be free from compelled self-incrimination.

The policy behind the privilege is stated in the Fifth Amendment, keeping the government from forcing individuals to furnish evidence that can prove their guilt. This is satisfied by its exclusionary rule. Other policies, such as privacy, evidentiary reliability, and the accusatorial nature of our system do not justify expanding the privilege to include a civil remedy. The exclusionary rule is not just a remedy here, it is an integral part of the Fifth Amendment. Welding a civil cause of action onto the privilege will needlessly deter proper police interrogation of suspects.

The Miranda rule does not change the analysis. Miranda created an irrebuttable presumption; confessions taken contrary to its procedures are deemed compelled without regard to whether they were in fact compelled. This rule did not create any new remedies, but is a rule of evidence given constitutional force through the Fifth Amendment. Like the Fifth Amendment it serves, a Miranda violation is incomplete without the improper admission of a confession taken contrary to its rules. Therefore interrogation contrary to Mirandawithout improper incrimination rules does not violate the Constitution and thus cannot support civil liability. Any doubts that Mirandacannot be violated during interrogation is dispelled by the numerous exceptions to the rule. Because the Miranda rule excludes both compelled and voluntary confessions, adding a civil remedy will needlessly compound the already high cost of Miranda in lost voluntary confessions.

The fact that this Court recently clarified that Miranda is a constitutional rule changes nothing. Dickerson v. United States kept the status quo by leaving Miranda and its exceptions intact. Because the exclusionary rule is inseparable from Miranda, Miranda cannot support a civil rights action.

While due process can support a civil rights action for improper interrogation, the due process voluntariness standard is not a source of civil liability. The cases prohibiting involuntary or coerced confessions deal with the exclusion of evidence and fundamental fairness, concepts associated with procedural due process. The process due is no more than a trial free from an involuntary confession. Like the Fifth Amendment, this procedural due process right is only violated by the admission of an involuntary confession. Therefore, it does not support a civil rights action.

There are also strong practical reasons for avoiding civil liability. The voluntariness standard has proven notoriously difficult to implement. Overbearing the will is not easily defined, and the test is necessarily subjective. As the inducement cases demonstrate, a confession can be deemed involuntary with little real coercive interrogation. Civil liability should not be based on such a weak standard.

Substantive due process provides the standard for assessing civil liability for interrogation. Unlike procedural due process, the substantive due process violation is complete with the improper interrogation. Under this standard, civil liability should be limited to interrogation involving force, the deprivation of food, water, or sleep, or threats of force or deprivation. Such techniques are never proper, and can be said to "shock the conscience" of the court. They are also objective and easily defined. This distinction between violent interrogation and merely involuntary confessions has received some implicit recognition from this Court. It is now time for explicit approval by dismissing civil liability for the comparatively benign interrogation in this case.

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.