Identifying and (re)formulating prophylactic rules, safe harbors, and incidental rights in constitutional criminal procedure.

Author:Klein, Susan R.


The Miranda conundrum runs something like this. If the Miranda decision represents true constitutional interpretation, and all unwarned statements taken during custodial interrogation are "compelled" within the meaning of the Self-Incrimination Clause, the impeachment and "fruits" exceptions to Miranda should fall.(1) If it is not true constitutional interpretation, than the Court has no business reversing state criminal convictions for its violation. I offer

here what I hope is a satisfying answer to this conundrum, on both descriptive and normative levels, that justifies not only Miranda but a host of similar Warren, Burger, and Rehnquist Court decisions as well. In Part I, I introduce and define the terms "constitutional prophylactic rule," "constitutional safe harbor rule," and "constitutional incidental right,"(2) and attempt to legitimate their use. I further demonstrate that constitutional criminal procedure is so flush with such prophylactic and safe harbor rules and incidental rights that trying to eliminate them now, by either reversing a large number of criminal procedure cases or "constitutionalizing" all of those holdings, would do more harm than good. I propose that we accept the fact that these rules and rights are a fixed part of our constitutional landscape, and focus instead on minimizing their risks and maximizing their benefits.

Thus, in Part II, I suggest that we can highlight their benefits; encouraging dialogue and cooperation between the federal judiciary and state and federal executive and legislative officers, fostering experimentation with new procedures that may work better, and providing the flexibility to respond to new empirical and social science data without reversing constitutional decisions; and cabin their risks; infringing on principles of federalism and separation of powers, hardening rules that should be flexible enough to respond to changing facts, and deflecting attention away from actual constitutional violations; by caution, deference, and what I call "truth-in-labeling." Caution requires the Court to refrain from creating prophylactic or safe harbor rules and incidental rights except where it clearly identifies the mandate of the constitutional clause at issue and/or the values underlying that clause, and then explains why a rule or right is necessary to protect or adjudicate that clause. Deference requires the Court to warn the other branches of the federal government and all branches of the state governments that some action is necessary, and to act itself only if the other actors fail to offer alternative procedures that are within an acceptable range of functionality. Truth-in-labeling requires the Court to identify each doctrinal rule it creates as being either an explicit constitutional rule or remedy, or a prophylactic or safe harbor rule or incidental right, so that there is a clear signal that modification may be permissible.

Finally, in Part III, I examine Chief Justice Rehnquist's embarrassing failure in Dickerson v. United States to acknowledge, much less resolve, the Miranda conundrum. Inexplicably, Miranda is no longer a prophylactic rule (dashing all hopes for dialogue with other branches and improved alternatives), though neither is it "true" constitutional interpretation. Thus, an opportunity for a Court description of the status and justification for the Miranda warnings, as well as an acknowledgment of the status and justification for the host of other Court-created rules and rights that do not precisely track the constitutional clause that they concern, was squandered.


    I have argued elsewhere that the Miranda decision can best be explained, both normatively and descriptively, as a constitutional prophylactic rule designed to assist the Court in protecting the privilege against self-incrimination.(3) The fate of Miranda's exceptions depends upon how prophylactic rules are defined and the purposes they serve. A foray through constitutional criminal procedure has convinced me that the Miranda decision is far from unique. There are quite a number of decisions where the Court, unable to precisely track the constitutional criminal procedural guarantee before it, created devices that assist it in identifying and adjudicating constitutional violations, and imposed those devices upon the federal executive branch and the states. I categorized these devices as constitutional prophylactic rules, constitutional safe harbor rules, and constitutional incidental rights. The conceptual framework I develop in this Article for identifying and formulating these rules and rights can be applied not just to the Miranda decision and its exceptions, but throughout constitutional criminal procedure.

    A "constitutional prophylactic rule" is a judicially-created doctrinal rule or legal requirement determined by the Court as appropriate for deciding whether an explicit or "true" federal constitutional rule is applicable. It may be triggered by less than a showing that the explicit rule was violated, but provides approximately the same result as a showing that the explicit rule was violated. It is appropriate only upon two determinations: first, that simply providing relief upon a showing that the explicit right was violated is ineffective, second, that use of this rule will be more effective and involve only acceptable costs. It should be clear that, thus defined, a constitutional prophylactic rule is purely instrumental; it strives to achieve the rule and/or value inherent in that constitutional clause, and has no utility outside of that function.

    Conversely, a "constitutional safe harbor rule" is a judicially created procedure that, if properly followed by the government actor, insulates the government from the argument that the constitutional clause at issue was violated. It may allow conduct that violates the explicit constitutional rule to which it applies. It is appropriate only upon two showings: first, that providing relief every time an explicit right is violated is not feasible; second, that the use of this rule will involve only acceptable costs.

    The line between a prophylactic rule and safe harbor rule is this: A prophylactic rule potentially overprotects the constitutional clause at issue, while a safe harbor rule potentially underprotects it.(4) That is, a prophylactic rule will prohibit some government behavior that would otherwise be declared constitutional without the rule, and the safe harbor rule will allow some government behavior that would otherwise be declared unconstitutional without the rule.

    Closely related to a prophylactic rule is a "constitutional incidental right," a judicially-created procedure determined by the Court as the appropriate relief for the violation of an explicit or "true" constitutional rule or a prophylactic rule. It is appropriate only upon two determinations: first, some relief is warranted, but no particular procedure is mandated by the constitutional rule itself; second, the relief is effective and involves only acceptable costs. A constitutional incidental right is likewise purely instrumental; it seeks to advance the text of or values underlying the constitutional rule violated by either deterring future violations of that clause or reducing the harm visited upon an aggrieved party, it has no utility outside of those functions.

    The line between prophylactic and safe harbor rules and incidental rights is this: An incidental right is what the court provides after the violation of the constitution or prophylactic rule has already occurred. A prophylactic or safe harbor rule is a standard for government behavior designed to reduce violations or make alleged violations easier to adjudicate. If the rule works, there will be no recognized violation and no incidental right offered. If the prophylactic rule, safe harbor rule, or explicit constitutional rule is violated, then the question of an incidental right arises.

    These definitions and categorizations build upon and expand the groundbreaking work by Professor Henry Monaghan, who declared "remedial rules" a species of "constitutional common law" over twenty-five years ago.(5) Almost fifteen years after Professor Monaghan's article, Professor David Strauss, while not offering a constitutional theory supporting prophylactic rules, noted that the use of such rules to protect First Amendment values are a fixed part of our constitutional landscape.(6) The Court itself sometimes uses the term "prophylactic rule," though it never defines or attempts to justify it. On the other hand, the Department of Justice under former Attorney General Edwin Meese, Professor Joseph Grano, and Justice Antonin Scalia have forcefully argued that prophylactic rules such as the Miranda warnings are constitutionally illegitimate because not authorized under Article III.(7)

    My response is twofold. First, scholars have already offered the theoretical response.(8) Though there is no general federal common law displacing state rules of decisions where state law governs,(9) there is unquestionably federal common law created to interpret federal statutes as displacing conflicting state law,(10) to protect enclaves of federal interest,(11) to provide rules of decision where the Court is granted jurisdiction,(12) and to flesh-out federal constitutional commands.(13)

    Second, I offer a purely practical response. The Court cannot perform miracles; if a constitutional theory requires the Court do the impossible, there is something wrong with the theory, not with the Court. As I demonstrate throughout the remainder of this Article, generating constitutional prophylactic rules and incidental rights to protect constitutional values is a beneficial and necessary function of the judiciary.

    The Miranda decision is a perfect example of this. The Court tried for thirty years to ensure that coerced confessions were...

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