Professor Akhil Reed Amar and Ms. Renee B. Lettow have written a lively, provocative article that will keep many of us who teach constitutional-criminal procedure busy for years to come.(1) They present a reconception of the "first principles" of the Fifth Amendment, and they suggest a dramatic reconstruction of criminal procedure. As a part of that reconstruction, they propose, inter alia, that at a pretrial hearing presided over by a judicial officer, the government should be empowered to compel a suspect, under penalty of contempt, to provide finks in the chain of evidence needed to convict him.(2)
Under the Amar-Lettow proposal, a suspect brought to this pretrial hearing would only receive "testimonial immunity," that is, protection against use of the specific testimony compelled from him. He would not, however, be provided any protection against derivative use - the use of his compelled testimony to search out other sources of information that might furnish the means of convicting him, such as the whereabouts of damaging physical evidence or the names and addresses of potential witnesses for the prosecution.
More than a hundred years ago, in Counselman v. Hitchcock,(3) the Court struck down a federal immunity statute because, as Justice Frankfurter later explained, the immunity grant "merely forbade the use of the testimony given and failed to protect a witness from future prosecution based on knowledge and sources of information obtained from the compelled testimony."(4) If the Amar-Lettow view prevails, however, a witness in Counselman's plight would be held in contempt for refusing to reveal leads to extrinsic evidence that could be used to convict him.
A quarter-century ago, in Kastigar v. United States,(5) the Court told us that protection against the use and derivative use of compelled testimony was coextensive with the scope of the privilege against compulsory self-incrimination. But Amar and Lettow tell us that "use and derivative use immunity" is excessive; protection against the use of the witness's own words is afl that the Fifth Amendment requires.
Although Amar and Lettow's conception of the Fifth Amendment is noteworthy, a judicially supervised interrogation proceeding is "an idea which has been part of the body of legal literature for a long time."(6) As I have discussed elsewhere,(7) My former colleague, Paul Kauper, appears to have been the first commentator to discuss at any substantial length the need for, the desirability of, and the legal and practical problems raised by such a procedure. Writing more than thirty years later - and nearly thirty years before Amar and Lettow - Judges Walter Schaefer and Henry Friendly, two of the most eminent critics of the Warren Court's most controversial confession cases, Escobedo v. Illinois(8) and Miranda v. Arizona,(9) in effect returned to and built upon the 1932 Kauper proposal.(10)
What I have called the "Kauper-Schaefer-Friendly plan" differs in one important respect, however, from the Amar-Lettow proposal. Under the former proposal, the judicial officer could not hold a suspect who refused to respond to questioning in contempt: "[t]he only sanction" for a suspect's silence was "to permit the trier of the fact to consider that silence for whatever value it has in determining guilt or innocence."(11) Moreover, in order to permit comment at trial upon a suspect's silence during the judicially supervised interrogation, both Schaefer and Friendly assumed the need for, and proposed, a constitutional amendment.(12)
Although their proposal is not linked to a ban against the use of confessions obtained in the stationhouse, Amar and Lettow do say, in an apparent effort to sweeten their proposal, that with the advent of the judicially supervised interrogation procedure they favor, "courts might well choose" to establish "a prophylactic rule that no police-station confession by a defendant is ever allowed in, unless volunteered by a suspect in the presence of an on-duty defense lawyer or ombudsman in the police station."(13) The courts might choose to create the prophylactic rule Amar and Lettow suggest, but they also might choose not to create such a rule.
Although I think it quite unlikely that an absolute prohibition against all police station confessions would ever go into effect, let us suppose that somehow it did. What then? "[T]his strict regime," Amar and Lettow assure us, "would create powerful incentives to conduct interrogation before magistrates rather than in police stations."(14)
I think not - at least not if Amar and Lettow's way of thinking about the Fifth Amendment were adopted. Amar and Lettow can't have it both ways. If, as they maintain, "[o]nly the defendant's compelled testimony should be protected by the [Fifth] Amendment"(15) - a view upon which their proposal depends - then only the coerced or otherwise improperly obtained stationhouse confessions or incriminating statements, not their "fruits, " would be protected by the Fifth Amendment.(16)
But how can we expect to discourage the police from proceeding in an irregular manner in the stationhouse when they know that any evidence their improper questioning brings to light will be admissible? Unless the courts bar the use of the often-valuable evidence derived from an inadmissible confession, as well as the confession itself, there will remain a strong incentive to resort to forbidden interrogation methods.(17)
Implementing the Amar-Lettow judiciary supervised interrogation plan would be no small undertaking. As Judge Friendly said of a similar proposal, "the system would be fully effective only if an adequate supply of magistrates and defenders was provided on a 24-hours-a-day, 7-days-a-week basis."(18)
I assume that the Amar-Lettow proposal, if implemented, would take the form of a statute. I assume, further, that at some point the Court would have to pass on the constitutionality of such a statute. If the mood of the country were such that the Amar-Lettow proposal were to be enacted into law, and if the attitude of the Court were such that it would uphold the statute, I very much doubt that the Supreme Court or any state court would choose to mitigate the impact of the statute by excluding all stationhouse confessions or incriminating statements, even those said to be volunteered in the absence of an on-duty defense lawyer.
Not even the otherwise-bold Miranda Court was bold enough to require law enforcement officers, whenever feasible, to make audio or video recordings of how the now-familiar warnings are delivered, how the suspect responds, or how the questioning proceeds.(19) No doubt the Warren Court was aware that. such a requirement would have added fuel to the criticism that it was overstepping its institutional authority - that it was "legislating."
But what Amar and Lettow suggest might happen - a judicially imposed ban against the use of all confessions obtained in the police station, even those the police claim were "spontaneous" or "volunteered," even those the police tape-recorded - would constitute a more naked exercise of judicial control over police practices than the restrictions the Miranda Court declined to impose on the police for institutional reasons. Even a Justice who favored such a sweeping prohibition as a matter of policy would likely balk at imposing it as a matter of constitutional law.
If the political-legal climate were such that the Amar-Lettow proposal for a judicially supervised interrogation procedure - enforced by the contempt power - were enacted into law and found constitutional, legislatures and courts would most probably favor an alternative, back-up scheme suggested by Amar and Lettow, one the authors consider "compatible" with their general approach:
[E]ach suspect in custody could be told that he must be brought before a magistrate and a lawyer within a short time (say, five hours) and that he has an absolute right to remain silent until then; but he should also understand that if he stands mute until then, a later jury can be told of his pre-magistrate, pre-lawyer silence, and might view more skeptically any story he later tries to offer at trial.(20)
This does not look like "an absolute right to remain silent" to me. (Evidently some absolute rights are more absolute than others.) If I understand this proposal correctly, a suspect would be told he has an absolute right to remain silent, but also that if he exercises this right and his case goes to trial, his silence can be used against him. Can a police officer be trusted to explain to a suspect how he can have a right to remain silent and still have his silence used against him? And even if a police officer does his very best to explain this, can the average suspect be expected to understand it?(21)
When we put these two pieces of their proposal together, Amar and Lettow's conception of criminal procedure looks like this: (i) police tell the suspect, before they bring him to a magistrate, that if he does not speak to them, his silence may be used against him if his case goes to trial; and (ii) the suspect is told, when he gets to the magistrate, that if he does not provide answers, even though these answers may lead the police to extrinsic evidence that can be used to convict him, he will be held in contempt. That's quite a package - if you happen to be a police officer or a prosecutor.
I doubt that the practical problems involved in implementing their proposal would matter much to Amar and Lettow. Their article focuses less on the remaking of criminal procedure and more on the reconception of constitutional law. But even if their specific proposals are not implemented, the Amar-Lettow view of the narrow scope of the protection provided by the Fifth Amendment would still have far-reaching consequences for criminal procedure. It would enable the government to hold a witness in contempt for refusing to reveal leads that could, in turn, uncover evidence that could be used...