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A. Miranda As Risk Management.
"In Miranda [v. Arizona, 384 U. S. 436 (1966)], the Court noted that reliance on the traditional totality-of-the-circumstances test raised arisk of overlooking an involuntary custodial confession, 384 U. S., at 457, a risk that the Court found unacceptably great when the confession is offered in the case in chief to prove guilt." Dickerson v. United States, 530 U. S. 428, 442 (2000) (emphasis added). This statement captures the essence of the Miranda rule, whether it be called a "prophylactic rule," a "complementary rule," or an "auxiliary barrier." Simply taking a statement from an arrestee without reading warnings is not wrong in itself. The problem is the risk that the voluntariness inquiry might be answered incorrectly. "A Miranda violation does not constitute coercion, but rather affords a bright-line, legal presumption of coercion . . . ." Oregon v. Elstad, 470 U. S. 298, 307, n. 1 (1985) (emphasis in original).
In the artificial atmosphere of law school, students typically take the facts as given and discuss at length what result should follow from those facts. The real world is considerably messier. Rules of law must be fashioned with the knowledge that the fact-finding process is fallible. In cases where error in one direction is thought to cause a greater injustice than error in the other, rules may be shaped to minimize the probability of the former error at the cost of multiplying the latter errors. The prosecution's heavy burden of proof beyond a reasonable doubt in criminal cases is expressly premised on the belief "that it is better that ten guilty persons escape, than that one innocent suffer." 4 W. Blackstone, Commentaries 352 (1st ed. 1769); see also In re Winship, 397 U. S. 358, 364 (1970). And escape they do, on a regular basis. See, e.g., Rufo v. Simpson, 86 Cal. App. 4th 573, 103 Cal. Rptr. 2d 492 (2001) (defendant acquitted of double murders in criminal trial, found in subsequent civil trial to have actually committed them).
A second circumstance that may justify a bright-line rule is when the uncertainty in the evidence could easily have been avoided by the party on the losing side of the bright line. The statute of frauds is such a rule. A party who wants to be sure he can enforce important contracts can simply get them in writing, but there is no simple way to protect oneself against false claims of oral contracts. The law protects against the risk of false claims of oral contracts by making them unenforceable for certain important matters, see, e.g., Cal. Civ. Code §1624(a), knowing that the cost will be that some genuine contracts are not enforced. The cost is acceptable, because people can easily guard against it.
The bright-line rule of Miranda has elements of both of these rationales:
"In these cases, we might not find the defendants' statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. Thepotentiality for compulsion is forcefully apparent. . . . The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice." 384 U. S., at 457 (emphasis added).
The Miranda Court's concern for the "potentiality of compulsion" would not be an issue if courts were capable of infallible determination of actual compulsion. The uncertainty of that determination is what makes necessary Miranda's procedures to "insure" voluntariness. Miranda "concluded that the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk that an individual will not be 'accorded his privilege under the Fifth Amendment . . . not to be compelled to incriminate himself.' " Dickerson, 530 U. S., at 435 (emphasis added) (quoting Miranda, supra, at 439).
Why is an error in determining voluntariness so much worse in one direction than the other that it justifies placing such a heavy thumb on the scales of justice? This is not a simple question, because the self-incrimination privilege embodies many values. See Withrow v.Williams, 507 U. S. 680, 691-692 (1993). Certainly one of the most important, though, is the danger that a coerced confession, erroneously determined to be voluntary, can result in the conviction of an innocent person.
"Nor does the Fifth Amendment 'trial right' protected by Miranda serve some value necessarily divorced from the correct ascertainment of guilt. ' "[A] system of criminal law enforcement which comes to depend on the 'confession' will, in the long run, be less reliable and more subject to abuses" than a system relying on independent investigation.' Michigan v. Tucker, supra, at 448, n. 23 (quoting Escobedo v. Illinois, 378 U. S. 478, 488-489 (1964)). By bracing against 'the possibility of unreliable statements in every instance of in-custody interrogation,' Miranda serves to guard against 'the use of unreliable statements at trial.' Johnson v. New Jersey, 384 U. S. 719, 730 (1966) . . . ." Id., at 692.
Concern about the reliability of out-of-court confessions is similarly evident in the Treason Clause, which accepts only a "Confession in open Court" as a substitute for the two witnesses. U. S. Const., Art III, §3.
"It has been well remarked, that confessions are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered accurately, or reported with due precision; and incapable, in their nature, of being disproved by other negative evidence." J. Story, Commentaries on the Constitution of the United States §943, pp. 671 (abridged ed. 1833) (reprint 1987).
Modern technology may be able to mitigate these concerns. Video recording of the entire interrogation, including both the questioner and the suspect, could be an effective alternative, such as the Miranda doctrine has contemplated from the beginning. See Dickerson, 530 U. S., at 440; P. Cassell, How Many Criminals Has Miranda Set Free?, Wall Street Journal, Mar. 1, 1995, p. A17. Even without alternatives, however, the balance struck by Miranda must be reconsidered when a defendant seeks to apply the rule of exclusion to a situation where the danger of false evidence is not present. Where the adverse effects of erroneous admission of an involuntary confession are reduced, the adverse effects of erroneous exclusion of a voluntary confession have relatively more weight. See infra, at 17.
The second rationale implicit in the Miranda rule is the ability of the police to clarify the voluntariness issue by complying with theMiranda requirements. The passage quoted above puts the onus on the officers to "undertake to afford appropriate safeguards . . . ." The police are in control of the interrogation, and in most cases they know the Miranda requirements and are able to comply with them. While Miranda compliance does not guarantee that the interrogation will withstand a voluntariness challenge, the cases where it will not are "rare." Dickerson, 530 U. S., at 444 (quoting Berkemer v. McCarty, 468 U. S. 420, 433, n. 20 (1984)). This rationale loses some of its force in those situations where the Miranda line is not as bright as originally advertised. The Withrow Court acknowledged this problem when it referred to "Miranda's bright-line (or, at least, brighter-line) rules . . . ." 507 U. S., at 694. Among these dim zones are the unresolved legal questions, such as the present case, see Part I, supra, and the perennially "slippery" definition of "custody." Oregonv. Elstad, 470 U. S. 298, 309 (1985); see also Withrow, supra, at 684-685 (state and federal courts disagreed on custody).
The Miranda rule employs a particularly drastic measure to minimize the risk of an erroneously admitted involuntary confession. Justice Harlan called it "heavy-handed and one-sided." Miranda, 384 U. S., at 525 (dissent). Miranda creates a conclusive presumption that any in-custody statement taken without complying with its procedures is coerced. See Withrow, 507 U. S., at 712 (O'Connor, J., dissenting). Conclusive presumptions, also known as per se rules and bright-line rules, are rarely warranted when considered purely on their logical merits.
" 'Per se rules . . . require the Court to make broad generalizations . . . . Cases that do not fit the generalizations may arise, but aper se rule reflects the judgment that such cases are not sufficiently common or important to justify the time and expense necessary to identify them.' Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U. S. 36, 50, n. 16 (1977).
"Per se rules should not be applied, however, in situations where the generalization is incorrect as an empirical matter; the justification for a conclusive presumption disappears when application of the presumption will not reach the correct result most of the time." Coleman v. Thompson, 501 U. S. 722, 737 (1991).
If the Miranda presumption were evaluated on Coleman's criterion, it would fail dramatically. "[P]atently voluntary statements taken in violation of Miranda must be excluded from the prosecution's case . . . ." Elstad, 470 U. S., at 307 (emphasis in original). As theMiranda Court implicitly recognized, there are many circumstances under which a suspect can give an unwarned, but still clearly voluntary custodial confession. In his dissent, Justice White made the point explicitly.
"Although in the Court's view in-custody interrogation is inherently coercive, the Court says that the spontaneous product of the coercion of arrest and detention is still to be deemed voluntary. An accused, arrested on probable cause, may blurt out a confession which will be admissible despite the fact that he is alone and in custody, without any showing that he had any notion of his right to remain silent or of the consequences of his admission. Yet, under the Court's rule, if the police ask him a single question such as 'Do you have anything to say?' or 'Did you kill your wife?' his response, if there is one, has somehow been compelled, even if the accused has been clearly warned of his right to remain silent. Common sense informs us to the contrary." Miranda, 384 U. S., at 533-534 (White, J., dissenting).
Judge Henry Friendly's public response to Miranda underscored the practical soundness of Justice White's hypothesis. "[T]he books are full of instances, of which the Court must have been well aware through petitions for certiorari, where it is evident that in-custody interrogation did not represent the exercise of compulsion." H. Friendly, Benchmarks 272-273 (1967). Next, Judge Friendly lists four then-recent cases in which there was no question that the custodial interrogation produced a voluntary confession. See id., at 273, nn. 33-36 (citing United States v. Cone, 354 F. 2d 119 (CA2 1965); United States v. Indiviglio, 352 F. 2d 276 (CA2 1965); Evalt v.United States, 359 F. 2d 53 (CA9 1966); United States v. D'Allesandro, 361 F. 2d 694, 698 (CA2 1966)). In the years since Miranda, this Court has often found confessions to be voluntary even though they were taken contrary to the Miranda procedures. See, e.g., Elstad, 470 U. S., at 312; Oregon v. Hass, 420 U. S. 714, 722 (1975); Michigan v. Tucker, 417 U. S. 433, 449 (1974); Harris v. New York, 401 U. S. 222, 224 (1971).
The downside of any conclusive presumption is that it disables the party disadvantaged by it from proving that the underlying, presumed fact is not true, regardless of how compelling a case he may have to disprove that "fact." Such presumptions are so inherently unfair that this Court has completely banned their use against defendants in criminal cases. See Carella v. California, 491 U. S. 263, 265 (1989) (per curiam). Yet Miranda construed the Constitution to require the same kind of presumption that Carella and Sandstrom v. Montana, 442 U. S. 510 (1979) construed it to prohibit.
"The disadvantage of the Miranda rule is that statements which may be by no means involuntary, made by a defendant who is aware of his 'rights,' may nonetheless be excluded and a guilty defendant go free as a result." Dickerson, 530 U. S., at 444. This is no small disadvantage. For a murderer or rapist who could have been incapacitated to go back on the street and prey upon more victims is a horrific cost.
Whether the benefits of Miranda justify the costs even within the rule's core area of application was hotly debated in the Mirandadecision itself, with dissenting Justices Harlan and White making a strong case that they do not. See also Cassell & Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 Stan. L. Rev. 1055 (1998).
Moran v. Burbine, 475 U. S. 412, 426 (1986) referred to the "subtle balance struck in [the Miranda] decision." The cases since Mirandaconfirm that the costs and benefits are close to balance in Miranda's core area. That is why proposals to extend the Miranda rule to areas where the costs are greater or the benefits are less have been largely rejected.
Harris v. New York, supra, is the first case in this line. Relying on a Fourth Amendment precedent, the Court permitted a statement taken without Miranda warnings to be used for impeachment. The additional deterrent effect of forbidding such use was not worth the additional cost of giving the defendant a license to commit perjury. See 401 U. S., at 225-226. Michigan v. Tucker, supra, similarly concluded that the marginal benefit of extending the Miranda exclusionary rule to a witness (Henderson) identified in the defendant's statement was not significant. The principal basis for this assessment was the fact that the manner of obtaining Tucker's statement had no bearing whatsoever on the reliability of Henderson's testimony. See 417 U. S., at 448-449. On the other side of the balance, as always, was "the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce." Id., at 450. The reduced need for an exclusion sanction was insufficient to outweigh the need for reliable evidence in Tucker. See id., at 451. Oregon v. Hass, supra, reaffirmed Harris on similar grounds. 420 U. S., at 722.
New York v. Quarles, 467 U. S. 649 (1984) made an exception to the Miranda rule for questioning needed to prevent further harm rather than merely to gather evidence of past harm. The exception is premised squarely on a weighing of the opposing dangers. "We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." (4) Id., at 657.
Berkemer v. McCarty, 468 U. S. 420, 437 (1984) declined to extend the Miranda warning requirement to traffic stops, even though they do come within Miranda's description of custody--" 'otherwise deprived of his freedom of action in any significant way.' " Id., at 435 (emphasis omitted). The atmosphere of compulsion is considerably less in such a stop, diminishing the need for warnings. See id., at 437-439. Illinois v. Perkins, 496 U. S. 292 (1990) reached the same result for largely the same reason where the questioner is an undercover agent posing as a fellow prisoner. Id., at 296-297.
The only area where Miranda has been expanded beyond its original boundaries is the issue of questioning for a different offense after invocation of rights, and even here the record is mixed. Michigan v. Mosley, 423 U. S. 96, 104-106 (1975) held that after an arrestee invokes his right to remain silent, it is perfectly proper to approach him hours later, give new warnings, obtain a waiver, and ask questions about an unrelated offense. A contrary rule would increase the cost of Miranda safeguards and "transfer [them] into wholly irrational obstacles to legitimate police investigative activity . . . ." Id., at 102. Yet the Court did exactly that in Arizona v. Roberson, 486 U. S. 675, 682-683 (1988), where the only difference was that the arrestee had asked to have a lawyer before answering questions rather than refusing to answer questions at all. See id., at 678; but see id., at 692-693 (Kennedy, J., dissenting) (similarity to Mosley).
Roberson was an anomaly the day it was decided, extending Edwards v. Arizona, 451 U. S. 477 (1981) to a situation where "[t]he problems to which Edwards was addressed are not present . . . in any substantial degree." Id., at 693 (Kennedy, J., dissenting). It is even more anomalous since McNeil v. Wisconsin, 501 U. S. 171, 175 (1991) held, and Texas v. Cobb, 532 U. S. 162, 167 (2001) confirmed, that the analogous Sixth Amendment rule is "offense specific." In an appropriate case, Roberson should be reconsidered. For now, it is sufficient to note that the successive questioning cases are a singular exception to the rule. In all other areas, any variation from the core of Miranda that tips the balance in any degree against exclusion has resulted in the evidence being admitted.
This brings us back to the starting point--whether the present case can be meaningfully distinguished from Tucker and Elstad. In Tuckerit was clear, and in the present case and Elstad it is assumed, that there was "a disregard, albeit an inadvertent disregard, of the procedural rules . . . established in Miranda. The question for decision is how sweeping the judicially imposed consequences of this disregard shall be." Tucker, 417 U. S., at 445.
Tucker rests on three premises. "Where the official action was pursued in complete good faith . . . the deterrence rationale [for exclusion] loses much of its force." Id., at 447. In Tucker the "violation" occurred before Miranda. See ibid. In the present case, it involved a question of law which is unsettled to this day. See Part I, supra. As noted, supra, at 17, the reliability of the evidence was not impaired in Tucker, as it is not in the present case. Finally, Tucker noted that the defendant's own statements were not being introduced in evidence, see id., at 449-450, as they are not in this case. The weights on the two sides of the balance are exactly the same in this case as in Tucker.
Oregon v. Elstad, supra, rejected a "fruits" claim that was considerably stronger than the claim in the present case. As Justice Brennan noted in dissent, the psychological connection between an initial confession and a subsequent one is substantial, due to the "hopeless feeling of an accused that he has nothing to lose by repeating his confession, even when the circumstances that rendered his first confession illegal have been removed." 470 U. S., at 325.
The Elstad majority's rejection of the exclusion sanction is not based on any special status of subsequent confessions, because these are the most suspect of all "fruits." Instead, Elstad holds that "the Miranda presumption, though irrebuttable for purposes of the prosecutor's case in chief, does not require that the statements and their fruits be discarded as inherently tainted." Id., at 307 (emphasis added). Elstad goes on to say that Tucker's refusal to import the Fourth Amendment "fruit of the poisonous tree" doctrine into Miranda"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 voluntary testimony." Id., at 308 (emphasis added). Equal means equal; equal does not mean greater. The Court of Appeals in the present case stressed that Elstad went on to quote a Fourth Amendment case drawing a distinction between objects and witnesses. See 304 F. 3d, at 1021. This reasoning makes too much of a make-weight argument in the Elstad opinion. The main reasons given for admitting the "fruit" in Elstad are the absence of actual compulsion and the reliability of the evidence, factors which are at least as strong, if not stronger, when the "fruit" is physical evidence.
A case is controlling precedent for a later case if the two are the same in their material facts, and we look to the opinion to see which facts the court deemed material. See Brief for Criminal Justice Legal Foundation as Amicus Curiae in Grutter v. Bollinger, No. 02-241, p. 7. The Elstad opinion does not deem it material which kind of "fruit" is involved; it considers them equal for this purpose.
Elstad is controlling precedent. The gun is admissible in evidence.
The decision of the Court of Appeals for the Tenth Circuit should be reversed.
July, 2003
Respectfully submitted,
Kent S. Scheidegger
Attorney for Amicus Curiae|
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4. Justice O'Connor, concurring in part and dissenting in part, would have suppressed Quarles' statement as to where the gun was located,
but not the gun itself, anticipating the question in the present case. See id., at 669 (distinguishing "testimonial aspects of the accused's
custodial communications" from nontestimonial aspects).