Miranda deconstitutionalized: when the Self-Incrimination Clause and the Civil Rights Act collide.

• Author: Klein, Susan R.

INTRODUCTION

The unthinkable happens--you are arrested. You are taken to the police station, put in an interrogation room, and read your rights. We all know them from television by now:

You have the right to remain silent. If you choose to give up this right, anything you say can and will be used against you in a court of law. You have the right to consult with an attorney, and to have the attorney present during interrogation. If you cannot afford an attorney, one will be appointed to represent you. Do you understand these rights?(1)

Of course you do; you are a law professor, an attorney, a well-informed citizen.

"I demand to see my lawyer and refuse to answer any questions."

"Too bad, buddy, we're short on patience today. You're gonna talk to us without your lawyer."

"What? I demand to see my lawyer!"

"You have to comply."

"I'll sue."

(general laughter by officers present)

After hours of nonstop interrogation, one of five possible outcomes emerges: you are guilty and "spill your guts"; you are innocent but confess or make damaging admissions; you are guilty but have the exceptional fortitude to remain quiet; you are innocent and manage to remain silent; you are innocent and eventually convince the police to release you or at least end the interrogation. Except for the first two situations, in which you may have the limited remedy of having your statement excluded from the prosecutor's case-in-chief,(2) there are no remedies available to you for the violation of your so-called "rights."

This Article will examine the Supreme Court's backpedaling on the warnings required by Miranda v. Arizona(3) and how that decision's attendant exclusionary rule has affected both the manner in which investigations are conducted by police departments in this country and the remedies available to citizens who are subject to unlawful government conduct. I propose that current developments in Fifth Amendment jurisprudence actually encourage law enforcement officials to violate the standards of conduct imposed upon them by the Miranda decision, and that current developments in civil rights jurisprudence make impossible a successful action based upon a violation of either Miranda or the privilege against compelled self-incrimination. Thus, a rational police officer in today's world will (and often does) ignore the dictates of Miranda. This problem can be solved only if the Supreme Court reconstitutionalizes Miranda, at least to the extent necessary to enforce those restraints on state and federal officials that it initially found crucial to properly safeguarding an individual's Fifth Amendment privilege against self-incrimination. Failing this, the Court should cease promulgating prophylactic rules that it cannot or will not enforce, both to avoid losing institutional prestige and to curb the shift in constitutional interpretative authority from itself to the executive branches of state and federal governments.(4)

In Part I, I detail the primary obstacles to enforcing Fifth Amendment values. First, I briefly describe the already well-documented evolution of the prohibition against compelled self-incrimination,(5) which after reaching the pinnacle of protection in Escobedo v. Illinois,(6) settled into its most balanced and modern approach in Miranda v. Arizona. The Miranda decision offered the indispensable advantages of providing a "bright-line" rule for police officers to follow, aiding courts in adjudication by presuming confessions to be valid when the prescribed warnings are given, and fairly evaluating the often competing interests of performing traditional law enforcement functions and protecting individual Fifth Amendment rights of those suspected of committing a crime. I then trace the privilege's subsequent decline in what I term the Miranda decision's deconstitutionalization, a process that began almost from its inception and reached its nadir when the Department of Justice recommended that Miranda be overruled as an illegitimate act of judicial policymaking.(7) There are now so many exceptions to Miranda's exclusionary rule that it makes more sense on a practical level to violate it than to obey it. Additionally, if the Miranda decision truly has no constitutional mooring, the Court lacks authority pursuant to Article III of the United States Constitution to impose its mandates upon state actors.

Second, I outline the detrimental and perhaps unintended effect of this deconstitutionalization on actions brought against state and local officials, pursuant to the Civil Rights Act of 1871 ([sections] 1983)(8) and based upon allegations of police-coerced confessions. I will briefly synopsize and analyze most of the case law in this area from 1968 to the present. Those courts that allow a civil rights action based on an unwarned statement do so on the basis of Fourteenth Amendment substantive due process notions(9) or on an expansive reading of the Fifth Amendment itself. Those courts that dismiss a civil rights action based on unwarned confessions do so based upon one or more of the following considerations: (1) Miranda warnings are merely prophylactic rules, rather than constitutional prerequisites; (2) the Fifth Amendment cannot be violated unless a statement is used in a criminal proceeding; (3) the doctrine of collateral estoppel prevents relitigation of the voluntariness of a confession; (4) when a peace officer testifies at a criminal trial, he is not acting under "color of law"; (5) law enforcement officials are not the proximate cause of the admission of coerced confessions; and (6) absolute or qualified immunity protects the government actors involved. I suggest that those courts that dismiss these civil rights claims are more faithfully following Supreme Court mandates. I further argue that the confluence of present legal doctrines bars virtually all [sections] 1983 actions based on alleged violations not only of Miranda but of the Fifth Amendment itself.

In Part II, I outline the advantages of allowing some remedy for Miranda violations and discuss the consequences of failing to do so. Most important, the elimination of Miranda would seriously infringe upon personal liberties by shifting the responsibility for interpreting the Constitution from the judiciary to law enforcement officials. Additionally, permitting some remedy would vindicate federal rights and foster Miranda's symbolic value as an ideal to be integrated into the behavioral norms of law enforcement entities and as an expression of society's commitment to treat each member, even one charged with a heinous crime, with respect.

Finally, in Part III, I consider various avenues available to support the Self-Incrimination Clause. Initially, I explore the possibility of basing a civil rights action upon either the deservedly maligned doctrine of substantive due process or a broader interpretation of the Fourth Amendment. I further suggest the more comprehensive solution of reconstitutionalizing Miranda and its exclusionary rule, either by true constitutional interpretation of the underlying guarantees of the Fifth Amendment or by recognizing and refining a concept of "constitutional common law"(10) that may be only conditionally or temporarily required. Each of these solutions would permit some or all of the following remedies for a Miranda violation: the exclusionary rule applied solely to the prosecutor's case-in-chief, the exclusion of all collateral uses of such evidence, and money damages or injunctive relief. I conclude that although the legal and policy arguments against traversing these avenues are sound, they cannot ultimately prevail, lest the Court be unable to discharge its role as the ultimate interpreter of the Constitution(11) in the Fifth Amendment and other vital areas.

1. OBSTACLES TO ENFORCEMENT

   There are two primary obstacles to enforcement of the Self-Incrimination Clause. The first is the Court's deconstitutionalization of the Miranda warnings. Initially, this change permitted gradual inroads into Miranda's exclusionary rule. Each inroad allowed greater use of statements taken in violation of Miranda and hence made it more attractive to violate the rule. Eventually, prosecutors and legal scholars began to argue that Miranda was itself an illegitimate decision and that the Court had no authority under Article III of the Constitution to promulgate Miranda's exclusionary rule or, in fact, any prophylactic rules. Such reasoning has emboldened certain Court members and Justice Department officials to advocate overruling Miranda entirely or utilizing a largely ignored federal statute(12) to evade its requirements. The second obstacle to protecting the privilege against self-incrimination concerns the development of Fifth Amendment and civil rights jurisprudence in such a manner as to exclude any possible damage action for violation of either the Miranda dictates or the Self-Incrimination Clause itself.

   1. Miranda's Deconstitutionalization

      Up until the early 1960s, the admissibility of a defendant's statements in a criminal trial in state court depended upon an assessment of the "totality of the circumstances" to determine whether the confession was the product of an essentially free and unconstrained choice by its maker.(13) If it was not, the introduction of such a statement violated the Due Process Clause of the Fourteenth Amendment.(14) The Court looked to such factors as the conduct of the police in intimidating the suspect and the characteristics of the suspect that might make him susceptible to coercion, such as his age, intelligence, education, psychological problems, and physical limitations.(15)

      This standard was modified by three events occurring in the mid-1960s. First, the Fifth Amendment's privilege against self-incrimination was incorporated into the Fourteenth Amendment and thus made applicable to the states.(16) Second, the Sixth Amendment's right to assistance of counsel was extended preindictment to mere police...