§ 24.12 Scope of the Miranda Exclusionary Rule

• Jurisdiction: North Carolina

§ 24.12 Scope of the Miranda Exclusionary Rule²⁰⁷

[A] Impeachment Exception

The Supreme Court ruled in Harris v. New York²⁰⁸ that a prosecutor may use a statement obtained in violation of Miranda to impeach a defendant who testifies at trial inconsistently with the custodial statement.

Speaking for the Court, Chief Justice Warren Burger conceded that "[s]ome comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose. . . ." However, the Chief Justice characterized such language as dictum and therefore not controlling. Instead, Burger stated, the "shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." Once any witness, including the defendant, agrees to take the stand he must testify truthfully. If he does not, the prosecutor is entitled to use "the traditional truth-testing devices of the adversary process," including the use of prior statements to impeach the speaker's credibility. According to the Chief Justice, "[a]ssuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief."

Harris is noteworthy. Outside the Miranda context, the Supreme Court has held that an incriminating statement made under compulsion in violation of the Fifth Amendment cannot be used for any purpose, including impeachment.²⁰⁹ Therefore, although the Harris Court did not characterize Miranda as a prophylactic rule — that description did not come for three more years — the seeds of Miranda's de-constitutionalization (or, at least, reduced constitutional stature) were planted in Harris.

[B] Fruit-of-the-Poisonous-Tree Doctrine²¹⁰

[1] In General

Consider this simple scenario. The police interrogate D, who is in custody, about the murder of a missing child. The police fail to issue Miranda warnings. D makes various incriminating remarks, which the police wish to introduce at trial. Based on Miranda, of course, absent an exception (e.g., the public-safety exception), D's incriminating statements are inadmissible in the prosecutor's case-in-chief.

That much is simple. However, what if the police use D's statement to obtain something more? Maybe they convince D later to talk some more or even repeat his earlier inadmissible statements, but this time after Miranda warnings are given. D, convinced he has already "spilled the beans," might waive his rights and talk. Or the police might use D's statement to more usefully pursue a new investigation, which leads them to a third person who will testify against D at trial. Or D's statements may lead the police to the weapon used in the murder or to the child's body. In each of these cases, this additional evidence — D's further statements, the third person's trial testimony, or the tangible evidence discovered — constitutes a fruit of the initial Miranda violation.

As discussed elsewhere in this text, the exclusionary rules relating to the Fourth Amendment, Due Process Clause, Self-Incrimination Clause, and Sixth Amendment right to counsel, apparently extend not only to the direct products of governmental illegality, but also to secondary evidence that is the "fruit of the poisonous tree."²¹¹Does this same principle apply, however, when the "tree" containing the "fruit" is a Miranda violation? As was developed earlier,²¹² the Supreme Court has come to treat "prophylactic" Miranda violations differently from "core" or "pure" Fifth Amendment self-incrimination violations, and it is here — in regard to the fruit-of-the-poisonous-tree doctrine — that this critical distinction developed.

As examined below, the Miranda rule supports no, or — depending on how one wishes to conceptualize one critical case — only a limited and (probably) rarely applicable fruit-of-the-poisonous-tree doctrine.

[2] A Tentative Start: Michigan v. Tucker

In Michigan v. Tucker,²¹³ the police arrested T for rape, and interrogated him. His questioning occurred before Miranda v. Arizona was decided, but the police nonetheless informed T that any statements he made might be used against him. They also asked him if he wanted an attorney, but they failed to inform him that one would be furnished free of charge if he could not afford counsel. Thus, the police provided T more notice of his rights than was constitutionally required at the time. However, T's trial took place after the Miranda decision was announced and, pursuant to then-applicable retroactivity principles,²¹⁴ the Miranda rules applied to T's interrogation. As a consequence, T's statement obtained in violation of Miranda was ruled inadmissible at his trial. In T's inadmissible statement, however, the police obtained the name of a witness, X, who was later called as a prosecution witness at T's trial. Tucker raised the question of whether X's testimony was inadmissible on the basis of the fruit-of-the-poisonous-tree doctrine.

Justice Rehnquist, writing for the Court, observed that the Fifth Amendment privilege against compulsory self-incrimination "was developed by painful opposition to a course of ecclesiastical inquisitions and Star Chamber proceedings occurring several centuries ago."²¹⁵ He went on to state that "[w]here there has been genuine compulsion of testimony, the [Fifth Amendment] right has been given broad scope." But, he said,

[a] comparison of the facts in this case with the historical circumstances underlying the privilege . . . strongly indicates that the police conduct here did not deprive [T] of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda.

Thus, it is in Tucker that Justice Rehnquist stated for the first time that the Miranda warnings are "not themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected." According to the Court, the only harm that occurred in this case was that the police departed "from the prophylactic standards . . . laid down" in Miranda.

Having seemingly de-constitutionalized Miranda, the Tucker Court distinguished Wong Sun v. United States,²¹⁶ the Fourth Amendment fruit-of-the-poisonous tree case, on the ground that Wong Sun involved the admissibility of a fruit of a constitutional violation, whereas X's testimony in the present case was only a fruit of a violation of a prophylactic rule (Miranda). Consequently, the Court concluded that it was not compelled by precedent to apply Wong Sun in the Miranda context.

As a matter of principle rather than precedent, the Court concluded that X's testimony should be admissible. Although the justices were urged to announce a broad, no-fruit-of-the-poisonous-tree ruling for all cases, Justice Rehnquist stated that "we . . . place our holding on a narrower ground." He focused on the fact that the interrogation here occurred before Miranda was decided: The "deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct"; here, however, "the official action was pursued in complete good faith." Therefore, the "deterrence rationale loses much of its force."

The Court went further, however, providing clues regarding how it might look at the issue in a genuine post-Miranda context. It stated that, beyond the matter of deterrence, the Fifth Amendment...