No time for silence

The "right to remain silent" is on life-support, and its death, should the Court so decree it, will not be quick or painless. This moribund right was enshrined in the Court's most famous criminal procedure case, Miranda v. Arizona,1 when the privilege against self-incrimination was extended to the

stationhouse. The coercion of confessions from criminal suspects had long been condemned, both because a resulting statement is unreliable and because society disapproves of the abusive police tactics involved in obtaining such a statement.2 In 1966, Chief Justice Warren commanded that police officers warn suspects of their rights to remain silent and obtain counsel prior to custodial interrogation and mandated the exclusion of any statements taken without a knowing and intelligent waiver of these rights.3 After all, of what value is the Fifth Amendment privilege against being "compelled in any criminal case to be a witness against oneself,4 if one can be forced to make the same damaging admissions in a civil proceeding or at the police station and such statements are admissible in a subsequent criminal proceeding?5

However, almost immediately on the heels of Miranda, the Burger and Rehnquist Courts began the series of nicks and cuts that, while not yet fatal, have led to critical blood loss. Through a series of cases in the 1970s and 80s,6 the Court "deconstitutionalized" Miranda. Contrary to the criticism of IMAGE FORMULA 4

most scholarship on the issue, this change did not occur through the Court's crafting of a series of exceptions to Miranda and its exclusionary rule. After all, most constitutional doctrines have some exceptions, and "no constitutional rule is immutable."7 Rather, the problem lies in the reasoning the Court offered to justify the exceptions. Then-Justice Rehnquist explained that the Miranda rules "were not themselves rights protected by the Constitution," but only "measures to insure that the right against compulsory self-incrimination was protected."8 Perhaps as important, Justice Rehnquist stated, in dicta in the 1990 Fourth Amendment case United States v. Verdugo-Urquidez, that a violation of the privilege against self-incrimination "occurs only at trial."9 Is there actually a "right to silence" if peace officers can use harassing and abusive tactics against suspects so long as the resulting statements are not used in a subsequent criminal trial?

As I predicted with unfortunate accuracy almost a decade ago, the confluence of these decisions has led to two related Fifth Amendment failures.10 First, if enshrined in a holding, the Verdugo reasoning would preclude civil rights liability for a violation of either Miranda or the privilege itself, under 42 U.S.C. sec 1983 or Bivens,11 so long as the resulting statement was not admitted in a criminal trial. There can be no recovery for innocent and uncharged suspects, as there will be no criminal trial in which the statement could be offered, and there can be no recovery for charged defendants, as the statements will be excluded. Second, the impossibility of monetary sanctions encourages a rational police department to pursue a policy of failing to administer the Miranda warnings in a timely manner and refusing to honor any invocation of these rights. There is simply nothing to lose and much to gain by way of impeachment evidence, fruits, or other leads.

The Court was poised two terms ago to resolve the profound constitutional question raised by Miranda's deconstitutionalization-if the warnings are not required by the Constitution, from where does a federal court derive Article III authority to hear such a case (much less reverse a state criminal conviction or impose monetary damages on government IMAGE FORMULA 7

actors) for even the intentional violation of the Miranda rules?12 But Miranda was given a brief reprieve in Dickerson v. United States,13 in which Chief Justice Rehnquist, writing for the Court, refused to reverse Miranda or permit Congress to legislatively overrule it by returning to the pre-Miranda voluntariness test.14 While Dickerson may have appeared, at first blush, to be a liberal victory, a closer examination reveals its failure to address, much less resolve, the pertinent constitutional issue. It simply locked into place, by judicial fiat, all past exceptions, as well as the language and reasoning deconstitutionalizing Miranda, without explaining how they could coexist with a Miranda rule supported by "constitutional underpinnings."15 Afraid to overturn a decision that has come to symbolize human dignity for the lowliest antagonist and judicial limits on police authority,16 the Court chose the surreptitious route of ostensibly upholding the warnings but leaving them without a conceptual justification.17

This decision left the Miranda warnings and the privilege against selfincrimination vulnerable to a potentially crippling blow in Chavez v. Martinez,18 a case presently before the Court. The officer in Martinez conducted a forty-five minute interrogation of a suspect in the emergency room, immediately after the suspect had been maimed and blinded by another officer, though the suspect was never "Mirandized" and repeatedly asserted his right to remain silent. The district judge found that this conduct violated the privilege against self-incrimination, despite the fact that the statement obtained was never offered in a criminal trial.19 The position adopted by the IMAGE FORMULA 9

Solicitor General of the U.S. Department of Justice,20 and by Professor Steven Clymer in a recent Yale Law Journal article on the subject,21 is that taking a compelled statement does not violate the Fifth Amendment privilege, though the admission of such a statement in a criminal proceeding would. The Fifth Amendment offers no right to silence at the stationhouse or anywhere else outside of the criminal courtroom and in fact does not regulate police conduct.22 However, government compulsion so egregious that it "shocks the conscience" of the Court may constitute an immediate constitutional violation, prior to and independent of any criminal proceedings, pursuant to the substantive due process component of the Fourteenth Amendment.

In Part I of this Essay, I suggest that the privilege should be considered a ban on certain official conduct outside of a criminal trial, not limited to an evidentiary rule. I respond to the alternative argument that the Court in Kastigar v. United States,23 by blessing official grants of immunity offered by prosecutors pursuant to statute, intended to extend the same authority to peace officers. In Part II, I argue that a deliberate violation of Miranda should give rise to a viable civil rights claim. Miranda and its exceptions can be justified by developing a conceptual framework for Court-created constitutional prophylactic rules. The contours of such rules, ubiquitous in constitutional criminal procedure, can be legitimately expanded or contracted by the Court in response to competing values, pragmatic considerations, social science data, and action (or inaction) by other branches of government. In Part III, I suggest that the events of September 11, 2001, do not warrant a wholesale abandonment of the privilege. I will conclude with some final thoughts regarding the values underlying the privilege against selfincrimination and outline why we should care whether Miranda or the privilege itself is protected by the Court.

I.

The Solicitor General's argument that the privilege against selfincrimination does not protect the right of a person in police custody to be free from interrogation methods that coerce an involuntary statement, unless IMAGE FORMULA 14

that questioning occurs at or is admitted in a criminal trial, rests on an overly expansive interpretation of two Supreme Court cases. First, General Olson, Professor Clymer, and others suggest that dicta in United States v. Verdugo-- Urquidez24 intended to reverse the long line of "penalty cases" prohibiting the government from penalizing the invocation of the Fifth Amendment's Self-Incrimination Clause in any pretrial setting, even where there is no resulting statement to use in a criminal trial. They further contend that when the Court upheld the federal immunity statute in Kastigar, it intended to constitutionally protect those secret coercive police interrogation practices that it had spent the previous fifty years condemning. These propositions are unsound.

Though the Verdugo Court correctly characterized the privilege against self-incrimination guaranteed by the Fifth and Fourteenth Amendment as a fundamental trial right of criminal defendants, this characterization is consistent with earlier and later holdings that this trial right can be protected only by applying the privilege in any pretrial setting where questioning may elicit an incriminating response. "It has long been held that [the] prohibition. . 'privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'"25 For this reason, the Court has, on numerous occasions, found the Constitution violated and ordered injunctive and other relief, even where there was no possibility that a statement would be used in a criminal trial, and even where no statement was generated.

For example, in Uniformed Sanitation Men Assn, Inc. v. Commissioner of Sanitation of the City of New York,26 three public workers who were called before a grand jury refused to sign waivers of immunity and testify against themselves were fired.27 The Court found a Fifth Amendment violation and ordered the City of New York to reinstate these workers.28 If a constitutional violation occurs only at trial, the Court could not have stepped in unless and until an incriminating statement was offered in a criminal proceeding against these workers. However, since the workers refused to waive their privilege and never made any statement, the admission of their statements in a criminal trial was impossible.29 Likewise, in Spevack v. Klein,30 the Court insisted IMAGE FORMULA 17

that the State of New York reinstate an attorney who had been disbarred for failing to waive his Fifth Amendment privilege at a judicial inquiry into professional misconduct.31 Again, there was never a resulting statement that could be used in a criminal trial, yet the Court imposed a remedy for the constitutional violation. In Slochower v. Board of Education,32 a public school teacher was dismissed for refusing to waive her Fifth Amendment right not to incriminate herself in front of a Congressional Committee.33 Again, the Court ordered reinstatement, finding that the Board of Education had violated the Fifth Amendment despite the fact that no statement was given,34 hence no admission in a later criminal proceeding was possible.

Most recently, in McKune v. Lile,35 the Court accepted that the privilege is available in a psychiatric prison treatment program, again well in advance of any potential criminal case.36 Though there was sharp disagreement regarding the issue of whether the alleged penalty or loss of benefit imposed on the prisoner (transfer to a more secure facility and loss of privileges) for refusing to admit to prior criminal sexual misconduct constituted "compulsion" within the meaning of the privilege,37 every member of the Court accepted the plaintiffs use of 1983 as a vehicle to obtain an injunction to prevent the imposition of a penalty upon invocation of the privilege.38 The opinion began by noting that if the program amounted to compulsion, it would have to be terminated.39 This was true despite the fact that the plaintiff refused to make a statement, and hence the introduction of an incriminating statement at a future criminal proceeding was impossible.

In addition to the penalty cases, which apply and enforce the Fifth Amendment in grand jury proceedings, congressional committees, and prison psychiatric interviews, a similar line of cases applies the Self-Incrimination Clause to coercive police interrogations of suspects, regardless of where they occur. In 1897, the Court in Bram v. United States 40 first applied the selfIMAGE FORMULA 19

incrimination clause to bar involuntary confessions offered in federal criminal trials.41 A long series of cases post-Bram but pre-incorporation applied exactly the same standard to the coercion of statements by state officials and condemned as a violation of due process the use of overbearing police tactics to coerce confessions from suspects.42 As in the penalty cases, the Court required that federal and state officials honor a suspect's desire to remain silent. When officers ignore such a desire and engage in conduct that compels an involuntary statement, the privilege (if in federal court) or due process (if in state court) has been violated. Though the remedy requested in those criminal cases was the exclusion of evidence, the Court made clear that the coercion itself is "revolting to the sense of justice" as embodied in the Constitution.43 For example, in Spano v. United States,44 the Court clearly stated that the Constitution controls the legality of actions by police officers during interrogations, and not merely the actions of judges during trials:

The abhorrence of society to the use of involuntary confessions ... also turns on the deep-rooted feeling that the police must obey the law while enforcing the law .... Those cases suggest that in recent years law enforcement officials have become increasingly aware of the burden which they share, along with our courts, in protecting fundamental rights of our citizenry .... 45 IMAGE FORMULA 21

In 1964, the Court explicitly incorporated the Fifth Amendment's privilege into the Fourteenth Amendment and applied it to the states.46 Since incorporation, the Court has used the same test to determine whether a statement was "compelled" within the meaning of the privilege or "involuntary" within the meaning of due process, in fact using these terms interchangeably.47 However, the Court continues to utilize the "due process" approach, perhaps in part because it allows the Court to plainly differentiate between statements found involuntary by a judge based upon the facts surrounding the interrogation (regardless of whether the Miranda warnings were required or given), and statements considered involuntary because of Miranda's legal presumption.48 Regardless of whether the Court frames the issue as one of due process or privilege, the voluntariness test and the condemnation of coercive police practices should be identical. Just as the Constitution is violated at the moment a state official compels an employee to make a statement (and thus surrender the privilege) by threat of employment loss, the Constitution is violated when police officers compel a suspect to make a statement (and thus surrender her privilege) by threat of continuous harassment. IMAGE FORMULA 23

Two years after incorporation, the Miranda Court reaffirmed Bram and Malloy, again holding that the privilege is applicable at the stationhouse.49 There is nothing unusual or illegitimate about protecting trial rights before trial. In addition to the Fifth Amendment cases above, the Court applies the quintessential trial right-the Sixth Amendment right to counsel-in many early but critical stages of a proceeding, months or even years before a criminal trial.50

The most famous legacy of Miranda is the requirement that police officers advise suspects that they have a right to remain silent.51 For thirty-- six years, countless officers have advised countless Americans, at the specific direction of the Supreme Court, that they possess this right. The premise that the Fifth and Fourteenth Amendment's privilege, except in extreme cases that "shock the conscience," applies only at trial cannot be accepted without concluding that the suspect in the stationhouse in fact has no "right" to remain silent. If the government's position in Martinez is correct, the warnings must be revised, so as not to continue to mislead the American public about the nature of its rights. Perhaps "we are going to continuously harass you, short of behavior a court might later find shocking, until you talk to us, but your attorney may be able to get some of your statements excluded, at least until cross-examination of your testimony and the government's rebuttal case" would do.

The federal government, the state of California, and Professor Clymer further believe that their position in Martinez is bolstered by the Court's holding in Kastigar v. United States.52 According to their theory, police and other government officials can use any nonshocking method to compel an individual to make a statement that could potentially be incriminating in a future criminal proceeding without violating the Fifth Amendment, because such coercion constitutes a grant of use-immunity.53 I believe that Kastigar in fact stands for the following much narrower proposition: A government official may use a certain form of compulsion, utilizing judicial process in a IMAGE FORMULA 25

public forum, in exchange for an explicit promise, pursuant to statute, not to use that statement or any evidence derived from that statement in a future state or federal criminal prosecution. Thus the two requirements before Kastigar immunity becomes coextensive with the privilege are, first, that the "compelled" testimony must be taken in a public proceeding enforced by judicial process, and second, that the suspect must be properly informed that the government is invoking an immunity statute, whereby neither direct nor derivative evidence can be used against him in a future criminal proceeding. The first requirement ensures that the testimony is accurately transcribed, obtained in a humane manner (by public questioning), and enforced by legal process (threat of contempt, rather than threat of a beating, sleep or food deprivation, or psychological harassment). The second requirement ensures that there is no possibility of future incriminating use of this testimony.54

Neither of these requirements is met when police officers coerce statements from suspects in the backroom of the stationhouse. During the majority of custodial interrogations, there is no video or audio recording to transcribe what the suspect actually said and to memorialize what form of compulsion was used.55 Such questioning is, then, a private proceeding where compulsion is exerted by the police officer. Moreover, the suspect has no promise of official immunity pursuant to statute,56 or even any guarantee that a later court will in fact find a resulting statement coerced and exclude it. Even if such exclusionary findings were uniform among the circuits and predictable, few suspects would be sufficiently conversant with the law to make such an advance judgment.

It is true that the Court has itself imposed an exclusionary rule prohibiting the federal use of testimony that was compelled by a state statute granting immunity.57 However, Justice Souter's opinion for the Court in the more recent United States v. Balsys makes clear that this judicially created immunity is not the appropriate vehicle for enforcing the privilege, but only a "fail-safe" device "to ensure that compelled testimony is not admitted in a IMAGE FORMULA 27

criminal proceeding" in the absence of a previous grant of immunity.58 The Court explained:

The general rule requires a grant of immunity prior to the compelling of any testimony. We have said that the prediction that a court in a future criminal prosecution would be obligated to protect against the evidentiary use of compelled testimony is not enough to satisfy the privilege against compelled self-incrimination. The suggestion that a witness should rely on a subsequent motion to suppress rather than a prior grant of immunity "would [not] afford adequate protection. Without something more, [the witness] would be compelled to surrender the very protection which the privilege is designed to guarantee."59

Thus, Mr. Martinez could have been brought in front of a grand jury and "compelled," upon pain of formal judicial sanction, to recount his version of events the night he was blinded and crippled by a police officer, even if such statements might have been incriminating, after an official grant of immunity from the state of California. He may not, however, be secreted to the back room of a stationhouse (or confined to a hospital bed) and subjected to the third degree until he breaks, despite the fact that any resulting statements will never by used in a future criminal proceeding (because they will be properly excluded by the state judge as involuntary, because Mr. Martinez is an innocent man and never charged, or because Mr. Martinez later agrees to testify for the government in exchange for a none pros).60 The privilege against self-incrimination and the due process clauses of the Fifth and Fourteenth Amendments are violated by the coercive tactics of harassing Mr. Martinez for forty-five minutes while he screamed in pain and begged to be left alone. This is not the form of compulsion the Kastigar Court blessed, and the police did not offer him any immunity.

In the government's world, a statement can be physically or psychologically coerced from a suspect upon the whim of a police officer, and the suspect's invocation of her privilege can be safely ignored. In a world where officer conduct is regulated by the Fifth Amendment, every professional police officer knows (or unless told otherwise by the Martinez Court) that such behavior violates the Constitution. Thus, there is uniform agreement among the lower courts that interrogation practices which coerce a statement from a suspect lead to liability under sec 1983 absent qualified immunity. Whether those courts call such coercion a violation of the SelfIncrimination Clause or the Due Process Clause, they all agree that the IMAGE FORMULA 30

constitutional violation is complete regardless of whether the resulting statement is ever used or offered in a criminal proceeding.61

The alternative version of the privilege offered by the Department of Justice does not leave citizens wholly at the tender mercy of police officers during interrogations. Both General Olson and Professor Clymer concede that some interrogations might be unconstitutional at the moment taken.62 However, they would turn to substantive due process to prohibit only police behavior "so brutal and so offensive to human dignity"63 and "unjustifiable by any government interest"64 that it "shocks the conscience."65 There are numerous disadvantages to the Court forsaking the privilege in favor of due process when regulating the coercion of statements from criminal suspects. The most obvious is that the Court itself rightly disfavors expanding substantive due process. The concept is difficult to describe or cabin, potentially transforming the Court into a "nine-headed Caesar."66 A related reason is the Court's reluctance to employ substantive due process when there is a more specific provision of the Bill of Rights that speaks to the particular type of IMAGE FORMULA 32

challenged governmental action.67 It is odd to attempt to fit the doctrines surrounding compelled statements into the wide-open spaces of substantive due process when we have a history of Fifth and Fourteenth Amendment jurisprudence that is more than up to the task. In reality, the government's move is little more than an attempt to convince the Court to employ a more government-friendly test to regulate its conduct, as the present Court is not so easily shocked.68

II.

It seems to me that even where a statement is not "involuntary" or "compelled" within the meaning of the Self-Incrimination and Due Process Clauses, constitutional doctrine should nonetheless permit a civil rights action based upon a police officer's refusal to honor a suspect's invocation of her Miranda rights. Unlike the uniform agreement among the courts of appeals that an officer violates the Self-incrimination and Due Process Clauses when he coerces a statement from a suspect, the courts of appeals sharply disagree over whether a Miranda violation (in the form of a failure to deliver the warnings or a refusal to honor a suspect's invocation of rights) is cognizable in a sec 1983 claim.69 Much of this confusion was caused by imprecise language and theoretical disagreement between members of the Court after Miranda and before Dickerson.

The position that best harmonizes Miranda's purpose and exceptions with the Court's tepid reaffirmation of Miranda's constitutional pedigree in United States v. Dickerson is that when law enforcement officers purposefully disregard a suspect's invocation of her Miranda right to remain silent, IMAGE FORMULA 36

they may be liable for monetary penalties pursuant to sec 1983. Any officer making a reasonable mistake regarding whether a suspect is entitled to or has invoked her Miranda right to silence or counsel would be fully protected by the doctrine of qualified immunity.70

Prior to the Miranda Court's requirement that police officers inform suspects of their privilege against self-incrimination and right to counsel,71 officer conduct during custodial interrogation was deemed unconstitutional only if, considering the "totality of circumstances," it overbore a suspect's will.72 After thirty years of attempting to ensure that police officers do not coerce statements from suspects by examining each confession that came before it, the Court admitted defeat.73 Thus, the Miranda Court demanded the four warnings (or an equally effective alternative) to accomplish two goals. First, it eased its own adjudicative task by providing an objective model against which all custodial interrogations could be measured.74 The Court simply could not review a sufficient number of cases, and the risk of erroneously admitting involuntary statements was too high.75 Second, it prevented violations of the self-incrimination clause by issuing a set of "bright-line" rules for police officers to follow during custodial interrogations.76 It was difficult for honest, law-abiding officers to know in advance when the inherent pressure surrounding custodial interrogations became unconstitutional compulsion. There is no doubt that the Miranda Court intended to directly regulate police conduct, as such Court regulation of the police provides the only "assurance that practices of this nature will be IMAGE FORMULA 38

eradicated in the foreseeable future."77 The warnings mandated in Miranda are best viewed as a compromise between fostering the values enshrined in the Fifth Amendment and protecting law enforcement's interest in crime fighting, a compromise that favors law enforcement.78

An optimist might view Dickerson v. United States79 as resolving the issue of whether the Miranda warnings are required by the privilege against self-incrimination. In answering affirmatively, Chief Justice Rehnquist noted that "we have consistently applied Miranda's rule to prosecutions arising in state courts .... With respect to proceedings in state courts, our 'authority is limited to enforcing the commands of the United States Constitution.'"80 Though Chief Justice Rehnquist acknowledged that the Court has "repeatedly referred to the Miranda warnings as 'prophylactic,"' and thus subject to exceptions by the Court or substitution by Congress, this does not mean that the Miranda warnings are "not Constitutionally required" but that "no constitutional rule is immutable."81

In fact, though Justice Scalia rightly chides the Dickerson majority for refusing to acknowledge this,82 scholars have long recognized and applauded the Court's duty to develop "constitutional common law" to both prevent and remedy constitutional violations.83 "Constitutional criminal procedure is rife IMAGE FORMULA 40

with prophylactic rules, which most often take the form of rebuttable or conclusive evidentiary presumptions or bright-line rules for law enforcement officials to follow."84 While the majority of these rules overprotect the constitutional right at issue and thus favor the civil liberties of crime suspects, some of them provide safe harbors for government officials following certain procedures and thus favor law enforcement.85

Just as it is legitimate to craft prophylactic constitutional rules, it is legitimate to limit their application and to create exceptions to them. As with crafting exceptions to core constitutional provisions,86 the Court has rightly been willing to craft exceptions to constitutional prophylactic rules and remedies where such exceptions do not hamper the goals of deterrence of executive misconduct or ease of adjudication or where there are other equally weighty interests at stake.

One example of Court-created constitutional common law is the Fourth Amendment exclusionary sanction developed in Weeks v. United States87 and IMAGE FORMULA 42

imposed on state actors in Mapp v. Ohio.88 Though this sanction is imposed only after a violation of the Fourth Amendment, the Constitution itself does not demand it as a remedy for the violation. Rather, the exclusionary sanction is a judicially created procedure designed to deter future Fourth Amendment violations, and the Court has not been hesitant to create numerous exceptions to the exclusionary rule whenever its costs (in terms of the truth-seeking function of a criminal trial) outweigh its deterrent effect (in terms of preventing Fourth Amendment violations by police officers).89

Likewise, in the Fifth Amendment context, the Court has limited the judicial consequences of a violation of Miranda's constitutional prophylactic rule where imposing exclusion from a criminal trial would not deter police misconduct or would otherwise have unacceptable costs. Thus, in a series of cases the Court has excluded statements taken in violation of Miranda only from the prosecutor's case-in-chief, allowing the use of such statements for impeachment purposes if the defendant chooses to testify and permitting the use of derivative evidence. After the Court considered the serious costs of applying the exclusionary rule in those circumstances, such as a "license to use perjury by way of a defense,"90 blocking a witness's voluntary decision to testify,91 or excluding reliable derivative evidence,92 it decided to limit the exclusionary sanction to the prosecutor's case-in-chief. Where public safety is at risk, the Court has gone even further, admitting statements in the prosecutor's case-in-chief despite a Miranda violation.93

Just as the Court has limited Miranda's exclusionary remedy when deterrence is not fostered and other values are at stake, it has extended Miranda's exclusionary sanction when necessary to deter police coercion and to ease the Court's task of adjudication. Thus, the Court held in Arizona v. Roberson that police cannot initiate interrogation, even about other crimes, once a suspect has invoked his Miranda right to counsel.94 As Justice Kennedy explained, after Miranda was extended again in Minnick v. IMAGE FORMULA 44

Mississippi to cover situations where suspects had consulted with an attorney, this rule "ensures that any statement made in subsequent interrogation is not the result of coercive pressures. Edwards conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness .... [The] rule provides 'clear and unequivocal' guidelines to the law enforcement profession."95

It is not surprising that all but one of these exceptions developed in cases concerning unintentional police violations of Miranda.96 An unintentional violation cannot be deterred, and thus exclusion of such evidence for impeachment purposes appears unduly harsh. None of the cases expanding or contracting Miranda's exclusionary remedy speak to the Court's willingness to allow police departments to develop schemes to refuse to deliver the Miranda warnings, in the absence of public safety considerations, without constitutional liability. Moreover, no case condones a government-sanctioned plan to ignore a suspect's invocation of her rights. Such action by police officers should be labeled unconstitutional, particularly in the wake of Dickerson, regardless of whether judicially created prophylactic rules or remedies exclude or admit statements taken in violation of this constitutional provision.

The Supreme Court could accomplish this goal in one of two ways. It could limit Miranda's exceptions to unintentional violations and exclude statements and derivative evidence generated by deliberate Miranda violations even for impeachment purposes. Some circuit courts have chosen this path.97 Alternatively, officer misconduct could be deterred by means less costly to the truth-seeking function of trial than exclusion, such as civil rights actions. At least one court has taken this route.98 However, the Court cannot continue to allow the exceptions to Miranda's exclusionary remedy to stand when the violations are intentional and at the same time preclude monetary IMAGE FORMULA 46

liability for such violations. That path would both seriously undermine the credibility of the Court and render Miranda ineffectual.

If the Court excludes from civil rights liability unreasonable violations of constitutional prophylactic rules, manifested in Martinez by the officer's decision not to read the warnings (in violation of Miranda) and subsequent decision not to "scrupulously honor" Mr. Martinez's invocation of his right to remain silent (in violation of Michigan v. Mosley99), these rules will lose their utility in protecting the privilege. Exclusion alone is ineffective for a number of reasons. First, it fails to protect the innocent suspect, who will never face trial. Second, the exclusionary rule is actually invoked in only a tiny fraction of all serious criminal cases. Well over ninety percent of felony cases are resolved by plea.100

Moreover, even in those cases where exclusion from the prosecutor's case-in-chief is a possibility, this remedy alone is plainly insufficient to persuade the police to obey Supreme Court commands. Consider the present incentive structure for an honest officer intent on solving a crime. Where it is clear that a suspect is in custody and undergoing interrogation-the two triggers of the Miranda rule-the rational officer should take the following course of action. First, she should deliberately fail to warn a suspect. If the suspect is silent, she can use that silence to impeach her later testimony.101 Should the suspect make a statement, not only can it be used to impeach her trial testimony, but the officer can "cure" the violation by "Mirandizing" the suspect at that point and obtaining a waiver.102 From the suspect's point of view (lacking the knowledge that the first statement is inadmissible), the "cat is out of the bag" and a waiver and second statement is likely. Once the officer either obtains a first statement or ascertains that the silence will continue, she should read the warnings. Eighty percent of suspects waive IMAGE FORMULA 48

their Miranda rights,103 and the officer can correctly predict that she will most likely obtain an admissible statement.

Should the suspect actually invoke her rights rather than waiving them when she finally receives the warnings, the officer is encouraged to continue to interrogate the suspect nonetheless. An officer who honors a suspect's invocation of her right to remain silent or consult with an attorney obtains absolutely no benefit from such behavior-she gets no statement or fruits. On the other hand, a rational police officer who ignores a suspect's invocation of his Miranda rights, at least in the absence of monetary liability under sec 1983, has nothing to lose and much to gain. If her continued questioning succeeds in convincing a suspect who has invoked her Miranda right to surrender them instead, she may obtain a useful statement. Though such a statement will be excluded from the prosecutor's case-in-chief, it can be used to keep the defendant off the stand104 and to lead to other witnesses105 or physical evidence of the crime.106

Thus, without either civil rights liability or a change in the rules regarding admissibility, there are no disadvantages to ignoring a Miranda invocation, but there are numerous advantages. We should therefore not be surprised by the widespread training in California advocating the violation of Miranda.107 Nor should we be surprised by the en bane Ninth Circuit's IMAGE FORMULA 50

description in Cooper v. Dupnik108 of an Arizona police agency's decision to ignore Miranda invocations in high profile cases.109 When the Court limits the adverse consequences of violating a substantive rule, we will, of course, see an increase in such violations.110 Professor Clymer asserts that this is all as it should be. He maintains that there is no misconduct to deter when police officers deliberately disregard the Miranda rules, so long as they are "willing to suffer the exclusionary consequences."111 This position is shortsighted. Professor Clymer has apparently forgotten why the Court instituted the warnings in the first place. They are necessary to dispel the coercion inherent in every custodial interrogation and to assist the Court in adjudicating the admissibility of statements. Should the Court in Martinez agree with Professor Clymer and General Olson and inform federal, state, and local police agencies that the constitutional prophylactic rules developed in Miranda (and throughout constitutional criminal procedure) are actually optional, it will send the intolerable signal that judicial restraints on abusive police tactics have been abandoned.

III.

The Department of Justice (DOJ) argued in Martinez that the Court should reject civil rights liability for intentional violations of Miranda and for intentional and coercive behavior to obtain involuntary confessions, in part, so that police officers may "obtain potentially life-saving information during emergencies."112 Three pages of the DOJ's brief are devoted to discussions of public safety, imminent threat of harm, and exploding bombs.113 The simplest answer to this argument is that no such emergency existed in either Martinez or any of the numerous other cases where police IMAGE FORMULA 54

departments are regularly employing this tactic. Any alleged criminal conduct in Martinez was terminated, there were no weapons at large, and there were no victims unaccounted for. The case involved simple evidence-- gathering. The government's thinly veiled reference to domestic and foreign terrorism should not persuade the Court to dilute or eliminate Fifth and Fourteenth Amendment protections for citizens in ordinary cases.

Should an actual emergency arrive, judicial and executive branch officials have ample means of safeguarding the public. First, there is already an exception to Miranda where public safety is at issue, excluding civil rights liability even for intentional Miranda violations in such scenarios.114 Second, there is nothing to prevent the Court from creating a narrow emergency exception for instances of actual rather than presumed coercion should the appropriate case arise.115 Finally, the government can choose to ignore Miranda and the privilege itself if convinced that a life may be at stake and simply pay the price of exclusion of the testimony in a criminal trial and monetary damages to the victims.116 Officers will generally have little to fear by way of jury verdicts in favor of mass killers and international terrorists.

IV.

There have been recent attempts by scholars and by the government at "reforming" both Miranda and the privilege against self-incrimination. Professor Clymer, for example, suggests that we interpret the privilege as a mere evidentiary rule rather than as a substantive regulation of police conduct.117 Though such an interpretation forecloses the possibility of civil rights liability not only for violations of the Miranda rules but also for police conduct that coerces a confession from a suspect, he assures us that we might expect an equivalent gain in civil liberties when the Court is forced to IMAGE FORMULA 58

eliminate Miranda's exceptions.118 After all, if the privilege is properly viewed as an evidentiary device, every instance of compulsion demands that we exclude the resulting statement and any physical fruits in the case-in-chief and for impeachment purposes. However, in reality the current conservative Court will not retract Miranda's exceptions should it preclude civil rights liability for police tactics which compel statements. Instead the Court will give us doctrinal incoherency-by both eliminating civil rights liability and retaining all of Miranda's exceptions.119 This will leave a world where no right to silence is enforced.

Professors Amar and Lettow have recently revived a proposal that first appeared in the academic literature in 1932, suggesting that magistrate interrogation is more "humane" than police interrogation120 and arguing that the privilege as currently drafted permits this type of questioning so long as the fruits of the compelled confession, but not the confession itself, are admitted in a subsequent criminal trial.121 Unfortunately, Amar and Lettow do not recommend replacing police interrogation with magistrate interrogation; rather, they suggest supplementing it.122 This, again, would be the worst of all worlds for those wishing to remain silent-the government has twice the opportunity to question suspects, and the suspect has no enforceable right to remain silent outside the courtroom.

In short, it appears that many proposed Miranda "reforms" will in fact almost wholly eviscerate the right, regardless of whether such was the intent of the reformer. Criticisms of legal doctrines surrounding the taking of confessions are misdirected-Miranda simply applies the privilege to the stationhouse. The culprit generating such unhappiness is the privilege itself.123 No doubt a plausible argument can be made for repealing the privilege against self-incrimination as an unattractive right-it assists the guilty, it is too costly for law enforcement, it is bad policy. However, if there is no longer a right to remain silent, this repeal should be accomplished by IMAGE FORMULA 60

amending the Constitution honestly through the political process, rather than dismembering the privilege judicially.

Whether it is wise to retain a right to remain silent depends upon what values we believe such a right fosters. If the privilege was enshrined in our Constitution solely to assure reliability of convictions, then perhaps a modified version of Professor Amar's proposal is in order. We could eliminate all police questioning (as innocent persons can be coerced into falsely confessing), compel magistrate questioning on pain of contempt, and admit only reliable and corroborated derivative evidence. The suspect's statement itself should be excluded based upon reliability concerns, since some innocent defendants make bad witnesses or may be impeachable with prior convictions. Likewise, if one believes that the privilege was designed solely as a rule of evidence, then General Olson and Professor Clymer's proposal might be palatable. Any government activity not both "unjustified by any government interest" and "shocking" is constitutional so long as the defendant retains the right to exclusion of such evidence and its fruits at a criminal trial. However, if there is some value in deterring disapproved police tactics (ranging from beating a confession out of suspects, threatening to remove their children from their care, making false promises of leniency, stripping them naked, and lying about the facts of the crime and the evidence linking the suspect to that crime, to more subtle psychological pressure such as false sympathy or minimizing the offense)124 and in maintaining an accusatorial criminal justice system that does not require a suspect to hang herself, a robust privilege protected by Miranda warnings and enforceable in a civil rights action is critical. IMAGE FORMULA 62

AUTHOR_AFFILIATION

Susan R. Klein*

AUTHOR_AFFILIATION

* Baker & Botts Professor in Law, University of Texas School of Law. My thanks to Michael Avery, Yale Kamisar, Douglas Laycock, John Pearson, Charles Weisselberg, and Welsh White. I wrote the Brief of Amici Curiae on behalf of the National Police Accountability Project of the National Lawyers Guild and the National Black Police Association, Inc., supporting respondent in Chavez v. Martinez, cent. granted, 122 S. Ct. 2326 (2002) (No. 01-1444). Though some of the arguments found in this Essay are also contained in that brief, this Essay does not necessarily reflect the views of those organizations.