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The Supreme Court Considers the Question


Wednesday, Jan. 01, 2003

This term, in Chavez v. Martinez, the U.S. Supreme Court will decide a question that has divided federal judges for some time. The question is whether police officers violate the Fifth Amendment when they coerce a confession out of a suspect.

To be more precise, the question is whether a failure to adhere to the "Miranda warning" requirements - the suspect hearing that he has the right to remain silent, and so on - violates the Fifth Amendment, even if the confession is never introduced in court. Or, put another way, does the violation happen when the confession is coerced, or when it is offered in Court against the defendant?

A person unfamiliar with the nuances of Supreme Court precedent might think the question an easy one. From a cultural standpoint, a person in custody has the "right to remain silent." Everyone who has watched a cop show on television knows that. If police do not respect that right, they violate the Constitution - and they do so as soon as they fail to give the warnings. Isn't that correct?

The answer is not as simple as it might seem. The Fifth Amendment right against compelled self-incrimination has taken three doctrinal paths that are sometimes in tension with one another. The case now pending before the Supreme Court brings that tension into stark relief and thus requires the Court to clarify the meaning of the Fifth Amendment privilege.

Custodial Interrogation: The First Doctrinal Path

The 1966 decision in Miranda v. Arizona tells us that to protect an arrested suspect from custodial pressures, the police must administer a set of familiar warnings. They tell the suspect that she has a right to remain silent; that if she gives up her right to remain silent, anything she says may be used against her in court; that she has a right to an attorney's presence during interrogation; and that if she cannot afford to pay an attorney, the court will appoint her one.

The Supreme Court created this array of rights as a "prophylactic" measure, intended to safeguard an underlying constitutional right against compelled self-incrimination. Previously, judges had been having a difficult time determining on a case-by-case basis whether an arrested suspect's confession was "voluntary" or not. Accordingly, in Miranda, the Court designed a script that would relieve judges of that burden, while simultaneously giving suspects greater control over their custodial environment. If police failed to adhere to the Miranda rules, the Court said, then the suspect's statements in response to interrogation would be inadmissible at trial.

The truth is that no one ordinarily has a "right to remain silent." When police ask us questions about events that do not call for self-incriminating statements, we must answer those questions. It is every person's duty to cooperate with law enforcement and to facilitate the process of investigating a crime.

Suppose the police investigating a homicide were to ask you, for example, "did your friend John Doe tell you anything about what he did to his wife?" You probably do not have the right to remain silent. You have recourse to the Fifth Amendment privilege only if your speaking will put you at risk for prosecution.

Similarly, imagine that you are called to testify against your friend John Doe at his subsequent murder trial. You still do not have a general right to remain silent; indeed, a judge can order you to answer the prosecutor's questions and jail or fine you if you nonetheless persist in refusing. As in the context of investigation, assuming that your answers to the questions would not be self-incriminating, you have no Fifth Amendment right to refuse to cooperate at trial.

Why then does Miranda provide greater protection to suspects in custody? It does so because we make two reasonable assumptions about a situation in which the police interrogate a person in custody. First, we assume that the purpose (and effect) of the questions is to call for self-incriminating disclosures. Second, we presuppose that the experience of being in custody is inherently coercive enough to suggest that a police officer's questions carry an implicit order to answer them.

These two assumptions, taken together, lead to the conclusion that a suspect who responds to interrogation while in custody is presumptively providing compelled, self-incriminating disclosures. As such, these disclosures are inadmissible at the suspect's criminal trial in the absence of the Miranda safeguards.

Immunity: The Second Doctrinal Path

Remember, it is only self-incriminating statements that cannot be compelled. Accordingly, the Supreme Court has said that removing the possibility of a future criminal prosecution effectively eliminates a suspect's Fifth Amendment privilege.

Take a simple case: I commit the crime of "outdoor pretzel eating," banned by statute in my state. Police confront me and ask "Are you now or have you ever been an outdoor eater of pretzels?" I refuse to answer the question on Fifth Amendment grounds. Given existing law, that refusal represents a legitimate exercise of my Fifth Amendment rights, and the same would hold true if I were asked the question in a court of law.

Now assume that the legislature of my state later repeals the statue banning outdoor pretzel eating, and the Supreme Court of the state announces that under the Nutritional Due Process Clause of the State Constitution, any statute banning outdoor pretzel eating is and always has been null and void. If police (or lawyers in court) now confront me and ask whether I ate pretzels outdoors, I can no longer successfully invoke the Fifth Amendment. My statement has been cleansed of its "self-incriminating" content and may now be compelled without violating the Fifth Amendment privilege.

On the basis of such reasoning, the Supreme Court has held that when a person refuses to answer a question on Fifth Amendment grounds, the State can overcome that refusal with a grant of what is called "use and derivative use" immunity.

"Use and derivative use immunity" means that neither the statements of the witness nor any evidence derived from the making of those statements may be used in a future criminal prosecution of the witness.

Once granted such immunity, a person must answer even questions calling for what would otherwise be self-incriminating disclosures.

The immunity doctrine appears to rest on a particular view of the Fifth Amendment. Under this view, the Amendment does not grant a right against being forced to say particular facts about oneself. What it grants instead is a right against being forced to provide material for current or potential future prosecution of oneself.

It would seem that on this approach, the constitutional violation takes place - if at all - at the moment when the compelled speaker's words (or some evidence derived from those words) are introduced against him at a criminal prosecution of him. The Fifth Amendment right, in other words, is a trial right that ripens only at a prosecution, not a right against compelled self-incrimination per se.

The Penalty Cases: The Third Doctrinal Path

Though the immunity cases - as noted above - suggest that without a criminal prosecution, there can be no Fifth Amendment violation, we must also confront the penalty cases, which tell a different story. These are cases in which the Supreme Court addressed the following scenario: a government employer tells an employee to answer a question calling for self-incriminating information, or else, if she refuses to answer, lose her job.

The Supreme Court held in these cases that giving an employee such a choice violates her Fifth Amendment right against compelled self-incrimination. Therefore, the government employer who has burdened an employee in this way cannot fire her for refusing to answer the question. (If the employee does answer the question, moreover, her answer is automatically immune from use and derivative use in any future prosecution of the employee.)

The penalty cases pose a challenge to the "Fifth Amendment as merely a trial right" theory. If the employee had no right to remain silent, but only a right not to be prosecuted with compelled statements, then the employer would, contrary to the Court's holdings, be able to fire the employee for refusing to answer its question. Only if the employee agreed to answer the question would there be a constitutional mandate: the exclusion of her answer (and any evidence deriving from her answer) at a future prosecution of the employee.

The fact that the firing may not be carried out without violating the Fifth Amendment, however, suggests that even in the absence of any criminal trial, the compulsion alone - here, the "incriminate yourself or else I'll fire you" threat - is in itself objectionable.

So What Do We Make of These Three Paths?

In summary, then, the Court's three doctrinal paths have developed as follows: First, the Supreme Court has said that when a suspect is in custody, she has a special right to remain silent (on the assumption that any questions will call for self-incrimination and that any answers given will be less than voluntary). Second, outside of custody, the Fifth Amendment privilege may be eliminated by removing the risk of criminal prosecution, either through immunity or through law reform: removing the risk of prosecution thus renders the statements non-self-incriminating for Fifth Amendment purposes. And third, a government employer may not subject an employee to the choice of self-incrimination or termination, regardless of which way the employee reacts to that choice.

The three lines of cases can be read to point to a very specific definition of the Fifth Amendment privilege. It is a right not to be compelled to say anything that could potentially - from the perspective of a suspect at the time she experiences compulsion - expose herself to future prosecution.

Not only does the precedent suggest this definition of the privilege, but the definition is a sensible one. It guards against the evil of placing a person in a position of having to provide statements that put him at risk of prosecution. This position is cruel because of the fear and uncertainty it necessarily imposes upon a suspect.

Thus, if there has been a prior immunity grant, or prior, final judicial invalidation of the criminal law at issue, the Fifth Amendment right does not apply. Otherwise, however, it is the compelled risk itself that is prohibited - whether or not it is ultimately realized through prosecution or firing.

That leads us, finally, to the question the Supreme Court must answer this Term: If a suspect is subjected to questioning that compels self-incriminating statements in custody - including compulsion that takes the form of a Miranda violation - has he suffered a Fifth Amendment violation at the moment of that compulsion? The answer, the Court should hold, is yes - whether or not the suspect is ever brought to trial.

That is the best reading of the precedents, and it suggests that in the case before the Court, the respondent's Fifth Amendment claim should prevail.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. Her other essays addressing criminal procedure issues may be found in the archive of her columns on this site.

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