41 Pages Posted: 9 Feb 2000
In decisions since Miranda, the Supreme Court has characterized the required warnings as less than constitutionally required ?prophylactic rules.? The prophylactic rules cases are generally regarded as inconsistent with the Court?s cases applying Miranda in state cases. The Fourth Circuit?s recent Dickerson decision relied on the prophylactic rules cases to admit a Miranda-tainted statement on the authority of Title II of the 1968 Crime Control Act, which purports to repudiate Miranda in favor of the due process voluntariness test. The Department of Justice asked the court to review Dickerson, and cert was granted in early December.
The article argues that consistency does not require major changes in the law. In only five cases has the Court approved the admission of evidence obtained in violation of Miranda. The impeachment cases can be squared with Miranda on either or both of two theories. First, the defendant who testifies at trial waives the privilege at trial and can be compelled to answer pertinent questions on cross. Thus the use of previously compelled testimony for impeachment does not constitute a renewed violation of the Fifth Amendment, and adequate deterrence of the pretrial compulsion satisfies the Fifth Amendment. Second, compelled statements admitted for credibility rather than truth are not testimonial, so long as the jury follows the court?s instructions. The limiting instruction is a fiction, but in many other cases the constitutionality of admitting evidence depends on just this fiction. The need to deter coerced confessions justifies a broader exclusionary rule for due process violations, and the greater difficulty of proving perjury when the pretrial statement was not sworn justifies a broader exclusionary rule for statements compelled by formal process.
The derivative evidence cases can be read as merely shifting the burden of proof on the issue of whether evidence was derived from previously compelled testimony. Given that interrogation takes place at an early and dynamic stage of the investigation, exclusion of all evidence arguably derived from a Miranda violation would cost the government much evidence it would have discovered in the absence of the violation. By contrast, immunity grants are deliberate prosecutorial decisions, issued after the government has exhausted other avenues of investigation. It follows that assigning the government the burden of disproving causation in immunity cases, but assigning the defense the burden of proving causation in Miranda cases, rests on a defensible distinction.
The public safety case can be squared with Miranda by emphasizing the interplay between custody and interrogation. When the suspect is asked a single question in public during an emergency, it is fair to say that even though the suspect is in custody and even though the suspect has been questioned, the suspect has not been subjected to custodial interrogation. Traffic stops and prison informers have been held not to involve custodial interrogation, even though in both contexts the suspect is not free to leave and is questioned.
The underlying theory of the prophylactic rules cases is indeed inconsistent with the underlying theory of Miranda. It is possible, however, to explain almost all the holdings in the Miranda caselaw without calling Miranda into question.
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