In the stationhouse after Dickerson

Michigan Law Review

Volumn 99, Issue 5, 2001, Pages 1121-1162

  Weisselberg, Charles D ^a  

^a NONE

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EID: 0013254088     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290528     Document Type: Article

References (232)

1. 384 U.S. 436 (1966).
2. 120 S. Ct. 2326 (2000).
3. See Charles D. Weisselberg, Saving Miranda, 84 CORNELL L. REV. 109, 126-40 (1998).
4. 401 U.S. 222 (1971).
5. 420 U.S. 714 (1975).
6. 417 U.S. 433 (1974).
7. 470 U.S. 298 (1985).
8. In Tucker, the Court declined to suppress the testimony of a trial witness whose identity was discovered through a statement in violation of Miranda. 417 U.S. at 450. In Elstad, the Court ruled that a statement given after proper warnings would not be suppressed as the fruit of an earlier unwarned statement. 470 U.S. at 309.
9. E.g., Duckworth v. Eagan, 492 U.S. 195, 203 (1989); Tucker, 417 U.S. at 446.
10. Weisselberg, supra note 3, at 132.
11. See id. at 132-40.
12. See id. at 133-37.
13. See Weisselberg, supra note 3, at 137-38 (collecting cases); see also United States v. Acosta, 111 F. Supp. 2d 1082, 1088 (E.D. Wis. 2000) (describing plan by FBI agent to ignore requests for counsel); Hendrickson v. State, 688 S.W.2d 295 (Ark. 1985) (officers deliberately questioned over an invocation of the right to counsel); State v. Burris, 679 A.2d 121, 124-25 (N.J. 1996) (police interrogated suspect despite clear invocation of right to counsel); State v. Sosinski. 750 A.2d 779, 782-83 (N.J. Super. Ct. App. Div. 2000) (prosecutors instructed officers not to Mirandize suspect so that he would think he was not in custody); Peter Erlinder, Getting Serious About Miranda in Minnesota: Criminal and Civil Sanctions for Failure to Respond to Requests for Counsel, 21 WM. MITCHELL L. REV. 941, 964-67 (2000) (describing refusal of FBI agent to respect assertion of right to counsel).
14. See Weisselberg, supra note 3, at 137-38 (collecting cases); see also United States v. Acosta, 111 F. Supp. 2d 1082, 1088 (E.D. Wis. 2000) (describing plan by FBI agent to ignore requests for counsel); Hendrickson v. State, 688 S.W.2d 295 (Ark. 1985) (officers deliberately questioned over an invocation of the right to counsel); State v. Burris, 679 A.2d 121, 124-25 (N.J. 1996) (police interrogated suspect despite clear invocation of right to counsel); State v. Sosinski. 750 A.2d 779, 782-83 (N.J. Super. Ct. App. Div. 2000) (prosecutors instructed officers not to Mirandize suspect so that he would think he was not in custody); Peter Erlinder, Getting Serious About Miranda in Minnesota: Criminal and Civil Sanctions for Failure to Respond to Requests for Counsel, 21 WM. MITCHELL L. REV. 941, 964-67 (2000) (describing refusal of FBI agent to respect assertion of right to counsel).
15. In 2000, the population of California was 33,871,648, 12% of the total population of the United States. See U.S. CENSUS BUREAU, Tbl. 2, Resident Population of the 50 States, the District of Columbia, and Puerto Rico: Census 2000, available at http://www.census.gov/-population/www/cen2000/respop.html#t2 (last visited Apr. 20, 2001).
16. In 1998, California law enforcement officials made 1,565,431 nontraffic arrests (15% of the 10.291.317 nontraffic arrests made by all the states), including 340,602 arrests for FBI index crimes (19% of the 1,774,193 arrests for FBI index crimes made by all states). See FED. BUREAU OF INVEST., U.S. DEP'T OF JUSTICE, UNIF. CRIME REPS., CRIME IN THE UNITED STATES (1998) tbl. 30 (Arrests. Number and Rate) & tbl. 69 (Arrests by State). "Index" crimes include murder, nonnegligent manslaughter, forcible rape, robbery, aggravated assault, burglary, larceny-theft, motor vehicle theft and arson.
17. See Weisselberg, supra note 3. at 133-37. In Tucker, the Court called Miranda's safeguards "recommended" and "suggested," though it is clear from the context that the Court did not mean that Miranda's procedures could be unilaterally scrapped. See Tucker, 417 U.S. at 443-44.
18. See Weisselberg, supra note 3, at 133-34. POST is part of the California Department of Justice. See CAL. PENAL CODE § 13500 (2000). It develops training programs and standards for law enforcement officers. See CAL. PENAL CODE §§ 13503(e) (2000), 13510(a) (2000 & Supp. 2001), 13511 (2000 & Supp. 2001).
19. See infra Section II.C.
20. See infra Section I.B; see also Weisselberg, supra note 3, at 136-37. There are no empirical studies showing the prevalence of this practice in police departments throughout California. In 1992-93, however, Richard Leo observed 182 interrogations conducted by police in three northern California departments. Suspects invoked their rights in thirty-eight interrogations. Officers continued to question "outside Miranda" in seven of those thirty-eight cases (18%). See Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266,276 (1996).
21. See infra Section I.B; see also Weisselberg, supra note 3, at 136-37. There are no empirical studies showing the prevalence of this practice in police departments throughout California. In 1992-93, however, Richard Leo observed 182 interrogations conducted by police in three northern California departments. Suspects invoked their rights in thirty-eight interrogations. Officers continued to question "outside Miranda" in seven of those thirty-eight cases (18%). See Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY 266,276 (1996).
22. In 1999, a bill was introduced in the California State Assembly declaring "the intent of the Legislature" that officers cease questioning a suspect in custody who has invoked his or her Miranda rights. A.B. 1326, 1999-2000 Reg. Sess. (Cal., as amended Jan. 14, 2000). The bill was voted out of committee but died while Dickerson was pending in the Supreme Court. On March 19, 2001, another bill was introduced in the California State Senate with the same declaration, but also with a provision to prohibit "outside Miranda" training. See S. B. 1211, 2001-02 Reg. Sess. (Cal., as amended May 15, 2001). The bills and their histories are available at http://www.assembly.ca.gov/acs/acsframeset2text.htm (last visited May 29, 2001).
23. See, e.g., CAL. DEP'T OF JUSTICE, CALIFORNIA PEACE OFFICERS LEGAL SOURCEBOOK § 7.40a (Rev. Mar. 1997) [hereinafter SOURCEBOOK] (on file with author) ("An uncoerced (voluntary) statement obtained 'outside' Miranda (without complying with Miranda) may not be used during trial as part of the prosecutor's case-in-chief. . . . However, it can be used during the 'rebuttal' portion of the trial to impeach a defendant. . . ."); id., § 7.40b ("[T]he Miranda decision is not a code of conduct setting forth how police must conduct their investigations in the field. . . . Rather, the Miranda opinion simply sets out a 'series of recommended "procedural safeguards". . ..'") (quoting Tucker, 417 U.S. at 443-44); Videotape: Questioning: "Outside Miranda" (Greg Gulen Productions 1990), transcript reprinted in Weisselberg, supra note 3. at 191: The Miranda exclusionary rule is limited to the defendant's own statement out of his mouth. That is all that is excluded under Miranda. It doesn't have a fruits of the poisonous tree theory attached to it the way constitutional violations do. When you violate Miranda, you're not violating the Constitution. Miranda is not in the Constitution. It's a court-created decision that affects the admissibility of testimonial evidence and that's all it is. So you don't violate any law. There's no law says [sic] you can't question people "outside Miranda." You don't violate the Constitution. The Constitution doesn't say you have to do that. It's a court decision. So all you're violating is a court decision controlling admissibility of evidence. So you're not doing anything unlawful, you're not doing anything illegal, you're not violating anybody's civil rights, you're doing nothing improper. The only consequence of your talking to somebody who has invoked his rights is we will not be able to use his statement in the case in chief in trial against him.
24. See, e.g., CAL. DEP'T OF JUSTICE, CALIFORNIA PEACE OFFICERS LEGAL SOURCEBOOK § 7.40a (Rev. Mar. 1997) [hereinafter SOURCEBOOK] (on file with author) ("An uncoerced (voluntary) statement obtained 'outside' Miranda (without complying with Miranda) may not be used during trial as part of the prosecutor's case-in-chief. . . . However, it can be used during the 'rebuttal' portion of the trial to impeach a defendant. . . ."); id., § 7.40b ("[T]he Miranda decision is not a code of conduct setting forth how police must conduct their investigations in the field. . . . Rather, the Miranda opinion simply sets out a 'series of recommended "procedural safeguards". . ..'") (quoting Tucker, 417 U.S. at 443-44); Videotape: Questioning: "Outside Miranda" (Greg Gulen Productions 1990), transcript reprinted in Weisselberg, supra note 3. at 191: The Miranda exclusionary rule is limited to the defendant's own statement out of his mouth. That is all that is excluded under Miranda. It doesn't have a fruits of the poisonous tree theory attached to it the way constitutional violations do. When you violate Miranda, you're not violating the Constitution. Miranda is not in the Constitution. It's a court-created decision that affects the admissibility of testimonial evidence and that's all it is. So you don't violate any law. There's no law says [sic] you can't question people "outside Miranda." You don't violate the Constitution. The Constitution doesn't say you have to do that. It's a court decision. So all you're violating is a court decision controlling admissibility of evidence. So you're not doing anything unlawful, you're not doing anything illegal, you're not violating anybody's civil rights, you're doing nothing improper. The only consequence of your talking to somebody who has invoked his rights is we will not be able to use his statement in the case in chief in trial against him.
25. See id. at 192.
26. See Weisselberg, supra note 3, at 122-25, 140-53, 162-67.
27. 451 U.S. 477 (1981).
28. Id. at 484-85: see also Minnick v. Mississippi, 498 U.S. 146, 153 (1990) (holding that Edwards' protection does not cease once a suspect actually consults with counsel).
29. This narrow reading of Miranda and Edwards is not confined to law enforcement. See Arnold H. Loewy, Police-Obtained Evidence and the Constitution: Distinguishing Unconstitutionally Obtained Evidence from Unconstitutionally Used Evidence, 87 MICH. L. REV. 907, 916-28 (1989) (arguing that the Fifth Amendment can only be violated at trial and, hence, courts should care only about the admission of Afira/ido-violative statements, not whether Miranda is breached in the stationhouse).
30. See Mincey v. Arizona, 437 U.S. 385, 398 (1978).
31. See. e.g., In re Gilbert E., 38 Cal. Rptr. 2d 866, 868 (Ct. App. 1995) ("When the police deliberately step over the line and disobey Supreme Court pronouncements, respect for the rule of law necessarily diminishes."): People v. Bey. 27 Cal. Rptr. 2d 28, 30-31 (Ct. App. 1993) ("This is a very troubling case, presenting a deliberate police violation of Miranda coupled with a misrepresentation to appellant about the legal consequences of that violation."): People v. Montano, 277 Cal. Rptr. 327, 337 (Ct. App. 1991) ("No tolerance can be given to the officers' flagrant trampling of defendant's rights, particularly because [officers] began the interrogation with no intention of respecting those rights." (footnote omitted)); People v. Baker, 269 Cal. Rptr. 475, 478 (Ct. App. 1990) ("Fortunately, the trial court here was well aware of the unlawfulness of the police conduct and stated that it intended to initiate steps to prohibit the San Diego Police Department from using ["outside Miranda"] procedures in the future.").
32. 72 Cal. Rptr. 2d 773 (Ct. App. 1998), depublished, 1998 Cal. LEXIS 4252 (June 24, 1998).
33. Id. at 778.
34. 953 P.2d 1212 (Cal. 1998), cert. denied, 525 U.S. 1042 (1998). In a death penalty case decided a year earlier, the California Supreme Court noted that officers had questioned the defendant after his request for counsel. See People v. Bradford, 929 P.2d 544 (Cal. 1997). The court criticized the officers, stating that their conduct "was unethical and it is strongly disapproved." Id. at 567.
35. See Peevy, 953 P.2d at 1215.
36. Id. 34. See id. at 1216.
37. See id. at 1219. Part of the reason for the holding is that, under the California Constitution, statements taken in violation of Miranda may be excluded only to the extent required by the federal Constitution. See id. at 1214.
38. See id. at 1221 n.2.
39. See id. at 1225-28. The court declined to take judicial notice of "outside Miranda" training materials because the issue of police training was not raised in the trial court and because the materials did not specifically pertain to the San Bernardino County Sheriffs office. See id. at 1227 n.4. Justice Stanley Mosk wrote separately to indicate that if the defendant had established that he was questioned pursuant to a policy to violate Miranda, his statement would not be admissible under Harris. See id. at 1228-32 (Mosk, J., concurring).
40. Id. at 1224 (citation omitted).
41. Id. at 1225.
42. Id.
43. People v. Branscombe, 1998 Cal. LEXIS 4252 (June 24, 1998). An unpublished opinion "shall not be cited or relied on by a court or a party." CAL. R. CT. 977(a).
44. Response to Petition for Writ of Certiorari at 12, Peevy v. California (No. 98-6125) (Nov. 6, 1998). Professor Paul G. Cassell and the Washington Legal Foundation also asked the Supreme Court to take the case, stating that "[a]mici are deeply concerned that the conclusion below about the 'illegality' of noncoercive questioning outside of the Miranda rules will unnecessarily discourage police officers from questioning suspects. . . ." Brief of Amici Curiae Washington Legal Foundation et al. at 2, Peevy v. California (No. 98-6125) (Nov. 12, 1998).
45. Peevy v. California, 525 U.S. 1042 (1998).
46. 177 F.3d 1152 (9th Cir. 1999), amended by 197 F.3d 1021 (9th Cir. 1999), cert. denied, 528 U.S. 1198 (2000).
47. See Henry, 197 F.3d at 1025, 1027.
48. Id. at 1028.
49. Id. at 1027-28.
50. Id. at 1029.
51. Id. The court also emphasized that under the California Evidence Code, statements admitted for impeachment are also admitted for the truth of the matters asserted. Id. (citing CAL. EVID. CODE §§ 1220,1235).
52. Kernan v. Henry, 528 U.S. 1198 (2000).
53. 922 F. Supp. 327 (C.D. Cal. 1996).
54. See id. at 330-34.
55. See id. at 336 ("The impeachment exception was certainly not intended to provide the police with the option of either ceasing questioning or continuing onward in the hopes of acquiring impeachment evidence.").
56. The district court considered cross motions for summary judgment. The court narrowed the case by dismissing the Fourteenth Amendment causes of action, but held that the plaintiffs' Fifth Amendment claims should go to trial. See Order Re: Cross Motions for Summary Judgment Argued August 11, 1997, at 2-5, Cal. Att'ys for Crim. Justice v. Butts (CV 95-8634-ER) (Aug. 26, 1997); Order Granting Defendants' Motion for Summary Adjudication; Denying Plaintiffs' Motion for Certification for Interlocutory Appeal; and Granting Defendants' Request for Stay Pending Appeal on Qualified Immunity Issue at 2-6, Cal. Att'ys for Crim. Justice v. Butts (CV 95-8634-ER) (Oct. 16, 1997). In so ruling, the court reaffirmed its previous denial of qualified immunity to the defendant officers. See Order re: Cross Motions for Summary Judgment, supra, at 5.
57. 195 F.3d 1039 (9th Cir. 1999), cert. denied, 120 S. Ct. 2717 (2000).
58. Id. at 1045.
59. See id. at 1046-48. The court followed an earlier case, Cooper v. Dupnik, 963 F.2d 1220, 1244 (9th Cir. 1992) (en banc), where a § 1983 action was permitted to go forward on behalf of a former suspect who was questioned in violation of Miranda and subjected to abusive tactics. The Cooper court noted that "[t]his case does not establish a cause of action where police officers continue to talk to a suspect after he asserts his rights and where they do so in a benign way." Id. By ruling that the claim should go to trial in Butts, the court determined that the plaintiffs had at least alleged that the questioning "outside Miranda" was not "benign."
60. See Butts, 195 F.3d at 1047.
61. Id. at 1048.
62. See id. at 1049 ("[T]hat Los Angeles and Santa Monica may have trained their police to violate the rights of individuals does not provide any defense for these officers. Their policy contradicts the safeguards provided by Miranda, and, at the very least, is in direct conflict with Cooper [v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) (en banc)].").
63. Id. at 1050.
64. Butts v. McNally, 120 S. Ct. 2717 (2000).
65. 18 U.S.C. § 3501(a) (1995).
66. 18 U.S.C. § 3501 (b) (1995) provides: The trial judge in determining the issue of voluntariness shall take into consideration all the circumstances surrounding the giving of the confession, including (1) the time elapsing between arrest and arraignment of the defendant making the confession, if it was made after arrest and before arraignment, (2) whether such defendant knew the nature of the offense with which he was charged or of which he was suspected at the time of making the confession, (3) whether or not such defendant was advised or knew that he was not required to make any statement and that any such statement could be used against him, (4) whether or not such defendant had been advised prior to questioning of his right to the assistance of counsel; and (5) whether or not such defendant was without the assistance of counsel when questioned and when giving such confession. The presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession.
67. Id.
68. For various accounts of the treatment of the statute, see Paul G. Cassell, The Statute That Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175, 197-225 (1999); Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 CORNELL L. REV. 883, 925-28 (2000); Michael Edmund O'Neill, Undoing Miranda, 2000 BYU L. REV. 185, 233-50.
69. For various accounts of the treatment of the statute, see Paul G. Cassell, The Statute That Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175, 197-225 (1999); Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 CORNELL L. REV. 883, 925-28 (2000); Michael Edmund O'Neill, Undoing Miranda, 2000 BYU L. REV. 185, 233-50.
70. For various accounts of the treatment of the statute, see Paul G. Cassell, The Statute That Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda, 85 IOWA L. REV. 175, 197-225 (1999); Yale Kamisar, Can (Did) Congress "Overrule" Miranda?, 85 CORNELL L. REV. 883, 925-28 (2000); Michael Edmund O'Neill, Undoing Miranda, 2000 BYU L. REV. 185, 233-50.
71. See United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999).
72. 120 S. Ct. 2326 (2000).
73. Id. at 2329.
74. Id. at 2333 (citing New York v. Quarles, 467 U.S. 649, 653 (1984), and Michigan v. Tucker, 417 U.S. 433 (1974)) (footnote omitted).
75. Id.
76. 467 U.S. 649 (1984).
77. Dickerson, 120 S. Ct. at 2335.
78. Id. at 2337 (Scalia, J., dissenting) (citations omitted).
79. Id; see also id. at 2343 (asserting that the Court did not address the claim that Miranda establishes a constitutional prophylactic rule "because, I assume, a majority of the Justices intent on reversing believes that incoherence is the lesser evil").
80. Id. at 2337.
81. 470 U.S. 298 (1985).
82. Dickerson, 120 S. Ct. at 2335.
83. See Kastigar v. United States, 406 U.S. 441, 453 (1972) ("[I]mmunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of privilege.") (emphasis added). I am not alone in criticizing the Court's clumsy handling of Elstad. See Paul G. Cassell, The Paths Not Taken: The Supreme Court's Failures in Dickerson, 99 MICH. L. REV. 898, 901 (2001); Susan R. Klein, Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030, 1073 (2001); see also Michael C. Dorf & Barry Friedman, Shared Constitutional Interpretation, 2000 SUP. CT. REV. 61, 80 n.79. Some courts also have had difficulty determining whether Dickerson undermines the holding in Elstad. Compare State v. Walton, No. W1998-00329-SC-R11-CD, 2001 Tenn. LEXIS 222, at *37 (Tenn. Mar. 15, 2001) (holding that Dickerson did not overrule Elstad), with People v. Trujillo, No. 98CA2575, 2000 Colo. App. LEXIS 2213, at *5-6 (Colo. Ct. App. Dec. 21, 2000) (ruling that Dickerson distinguished Elstad, and applying the "fruits" doctrine to bar impeachment of defense witnesses).
84. See Kastigar v. United States, 406 U.S. 441, 453 (1972) ("[I]mmunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of privilege.") (emphasis added). I am not alone in criticizing the Court's clumsy handling of Elstad. See Paul G. Cassell, The Paths Not Taken: The Supreme Court's Failures in Dickerson, 99 MICH. L. REV. 898, 901 (2001); Susan R. Klein, Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030, 1073 (2001); see also Michael C. Dorf & Barry Friedman, Shared Constitutional Interpretation, 2000 SUP. CT. REV. 61, 80 n.79. Some courts also have had difficulty determining whether Dickerson undermines the holding in Elstad. Compare State v. Walton, No. W1998-00329-SC-R11-CD, 2001 Tenn. LEXIS 222, at *37 (Tenn. Mar. 15, 2001) (holding that Dickerson did not overrule Elstad), with People v. Trujillo, No. 98CA2575, 2000 Colo. App. LEXIS 2213, at *5-6 (Colo. Ct. App. Dec. 21, 2000) (ruling that Dickerson distinguished Elstad, and applying the "fruits" doctrine to bar impeachment of defense witnesses).
85. See Kastigar v. United States, 406 U.S. 441, 453 (1972) ("[I]mmunity from use and derivative use is coextensive with the scope of the privilege against self-incrimination, and therefore is sufficient to compel testimony over a claim of privilege.") (emphasis added). I am not alone in criticizing the Court's clumsy handling of Elstad. See Paul G. Cassell, The Paths Not Taken: The Supreme Court's Failures in Dickerson, 99 MICH. L. REV. 898, 901 (2001); Susan R. Klein, Identifying and (Re)Formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure, 99 MICH. L. REV. 1030, 1073 (2001); see also Michael C. Dorf & Barry Friedman, Shared Constitutional Interpretation, 2000 SUP. CT. REV. 61, 80 n.79. Some courts also have had difficulty determining whether Dickerson undermines the holding in Elstad. Compare State v. Walton, No. W1998-00329-SC-R11-CD, 2001 Tenn. LEXIS 222, at *37 (Tenn. Mar. 15, 2001) (holding that Dickerson did not overrule Elstad), with People v. Trujillo, No. 98CA2575, 2000 Colo. App. LEXIS 2213, at *5-6 (Colo. Ct. App. Dec. 21, 2000) (ruling that Dickerson distinguished Elstad, and applying the "fruits" doctrine to bar impeachment of defense witnesses).
86. The Supreme Court has apparently never directly faced the question whether the fruits of an involuntary statement must be excluded, though it has come close. In Mincey v. Arizona, 437 U.S. 385, 398 (1978), the Court declared that "any criminal trial use against a defendant of his involuntary statement is a denial of due process of law." In Arizona v. Fulminante, 499 U.S. 279, 300 (1991), the Court found that the use of an involuntary statement harmed the defendant for several reasons, including that it made other highly-damaging evidence relevant and, thus, admissible. For a discussion of the reasons why the fruits doctrine should apply to Fourteenth Amendment violations, see Yale Kamisar, On the "Fruits" of Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH. L. REV. 929 (1995).
87. Elstad, 470 U.S. at 306.
88. See New Jersey v. Portash, 440 U.S. 450 (1979); Mincey v. Arizona, 437 U.S. 385 (1978). Portash distinguishes Harris and holds that testimony given under a grant of immunity cannot be used for impeachment, because - unlike statements obtained in violation of Miranda - testimony obtained under an order of immunity is truly compelled. See Portash, 440 U.S. at 458-59. Similarly, Mincey distinguishes Harris and Hass and holds that the impeachment use of an involuntary statement is a denial of due process. See Mincey, 437 U.S. at 398.
89. If Miranda violations are per se violations of the Fifth Amendment, the Court would have to abandon the Harris/Hass impeachment exception, overturn Portash, or find some other reason for the different outcomes. Likewise, the Court would eventually have to reconcile Tucker and Elstad with Kastigar, and decide whether the "fruits" doctrine applies to Fifth Amendment/Miranda violations as well as to Fifth Amendment/immunity grants. At least one justice has suggested that there is a permissible distinction between the use of "fruits" in these two situations. See New York v. Quarles, 467 U.S. 649, 660, 669-672 (1984) (O'Connor, J., concurring in part and dissenting in part). The Court might also seek to review its earlier rulings equating Fifth and Fourteenth Amendment violations, as some have suggested. See Stephen J. Schulhofer, Reconsidering Miranda, 54 U. CHI. L. REV. 435, 440-45 (1987). Yet even if such a review led to different rules of exclusion for Fifth and Fourteenth Amendment violations, the Court would still have to reconcile Harris and Hass with Portash.
90. See Dickerson v. United States, 120 S. Ct. 2326, 2336 (2000).
91. Id. at 2332.
92. Id. at 2333-34 (quoting Miranda v. Arizona, 384 U.S. 436, 441-42 (1966) (emphasis added in Dickerson)).
93. See William C. Heffernan & Richard W. Lovely, Evaluating the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U. MICH. J.L. REFORM 311, 337-38 (1991) (developing regression model based upon answers to surveys of officers, and finding that extensive in-service training provided the most substantial explanation for officers' understanding of Fourth Amendment law; other dependent variables in the model included college attendance, assignment as supervisor or plain clothes investigator, years of service, number of recent arrests, number of recent suppression hearings, and exposure to law suits); L. Timothy Perrin et al., If It's Broken, Fix It: Moving Beyond the Exclusionary Rule, 83 IOWA L. REV. 669, 730-32 (1998) (surveying officers and reporting that those with continuing training answered 52.6% of search and seizure hypotheticals correctly, while those without such training answered 35% correctly; educational background, rank and experience did not necessarily affect performance); see also Corey Fleming Hirokawa, Note, Making the "Law of the Land" the Law on the Street: How Police Academies Teach Evolving Fourth Amendment Law, 49 EMORY L.J. 295, 330-31 (2000) (finding, in a study of Atlanta-area law enforcement agencies, that the complexity of search and seizure law does not appear to have led departments to decrease their efforts to teach procedures that comply with the Fourth Amendment). But see Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts. 63 U. COLO. L. REV. 75, 91-92 (1992) (reporting that, in survey of judges, prosecutors and defense lawyers, 51% of respondents believe that the experience of having evidence suppressed is at least as effective as teaching officers the law).
94. See William C. Heffernan & Richard W. Lovely, Evaluating the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U. MICH. J.L. REFORM 311, 337-38 (1991) (developing regression model based upon answers to surveys of officers, and finding that extensive in-service training provided the most substantial explanation for officers' understanding of Fourth Amendment law; other dependent variables in the model included college attendance, assignment as supervisor or plain clothes investigator, years of service, number of recent arrests, number of recent suppression hearings, and exposure to law suits); L. Timothy Perrin et al., If It's Broken, Fix It: Moving Beyond the Exclusionary Rule, 83 IOWA L. REV. 669, 730-32 (1998) (surveying officers and reporting that those with continuing training answered 52.6% of search and seizure hypotheticals correctly, while those without such training answered 35% correctly; educational background, rank and experience did not necessarily affect performance); see also Corey Fleming Hirokawa, Note, Making the "Law of the Land" the Law on the Street: How Police Academies Teach Evolving Fourth Amendment Law, 49 EMORY L.J. 295, 330-31 (2000) (finding, in a study of Atlanta-area law enforcement agencies, that the complexity of search and seizure law does not appear to have led departments to decrease their efforts to teach procedures that comply with the Fourth Amendment). But see Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts. 63 U. COLO. L. REV. 75, 91-92 (1992) (reporting that, in survey of judges, prosecutors and defense lawyers, 51% of respondents believe that the experience of having evidence suppressed is at least as effective as teaching officers the law).
95. See William C. Heffernan & Richard W. Lovely, Evaluating the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U. MICH. J.L. REFORM 311, 337-38 (1991) (developing regression model based upon answers to surveys of officers, and finding that extensive in-service training provided the most substantial explanation for officers' understanding of Fourth Amendment law; other dependent variables in the model included college attendance, assignment as supervisor or plain clothes investigator, years of service, number of recent arrests, number of recent suppression hearings, and exposure to law suits); L. Timothy Perrin et al., If It's Broken, Fix It: Moving Beyond the Exclusionary Rule, 83 IOWA L. REV. 669, 730-32 (1998) (surveying officers and reporting that those with continuing training answered 52.6% of search and seizure hypotheticals correctly, while those without such training answered 35% correctly; educational background, rank and experience did not necessarily affect performance); see also Corey Fleming Hirokawa, Note, Making the "Law of the Land" the Law on the Street: How Police Academies Teach Evolving Fourth Amendment Law, 49 EMORY L.J. 295, 330-31 (2000) (finding, in a study of Atlanta-area law enforcement agencies, that the complexity of search and seizure law does not appear to have led departments to decrease their efforts to teach procedures that comply with the Fourth Amendment). But see Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts. 63 U. COLO. L. REV. 75, 91-92 (1992) (reporting that, in survey of judges, prosecutors and defense lawyers, 51% of respondents believe that the experience of having evidence suppressed is at least as effective as teaching officers the law).
96. See William C. Heffernan & Richard W. Lovely, Evaluating the Fourth Amendment Exclusionary Rule: The Problem of Police Compliance with the Law, 24 U. MICH. J.L. REFORM 311, 337-38 (1991) (developing regression model based upon answers to surveys of officers, and finding that extensive in-service training provided the most substantial explanation for officers' understanding of Fourth Amendment law; other dependent variables in the model included college attendance, assignment as supervisor or plain clothes investigator, years of service, number of recent arrests, number of recent suppression hearings, and exposure to law suits); L. Timothy Perrin et al., If It's Broken, Fix It: Moving Beyond the Exclusionary Rule, 83 IOWA L. REV. 669, 730-32 (1998) (surveying officers and reporting that those with continuing training answered 52.6% of search and seizure hypotheticals correctly, while those without such training answered 35% correctly; educational background, rank and experience did not necessarily affect performance); see also Corey Fleming Hirokawa, Note, Making the "Law of the Land" the Law on the Street: How Police Academies Teach Evolving Fourth Amendment Law, 49 EMORY L.J. 295, 330-31 (2000) (finding, in a study of Atlanta-area law enforcement agencies, that the complexity of search and seizure law does not appear to have led departments to decrease their efforts to teach procedures that comply with the Fourth Amendment). But see Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts. 63 U. COLO. L. REV. 75, 91-92 (1992) (reporting that, in survey of judges, prosecutors and defense lawyers, 51% of respondents believe that the experience of having evidence suppressed is at least as effective as teaching officers the law).
97. Heffernan and Lovely also report that, in approximately 15% of the responses, officers indicated their willingness to search a suspect or a dwelling in deliberate violation of the Fourth Amendment. See Heffernan & Lovely, supra note 87, at 346-55. In-service training affected the officers' knowledge of the law, but not their willingness to comply with it. See id. at 354-55. For a fuller discussion of this point, see infra Section III.A.
98. Appendix A to this Article contains a sample request to a police department. For the most part, the same request was sent to each agency, with slight wording changes for district attorney and sheriff's offices.
99. CAL. GOV'T CODE §§ 6250-6268 (1995 & Supp. 2001).
100. Felonies are generally prosecuted by the county district attorneys' offices. See CAL. GOV'T CODE § 26500 (1988 & Supp. 2001). The Sheriff's departments are county-wide law enforcement agencies. District attorneys and sheriffs are elected in each county. See CAL. GOV'T CODE §§ 24000, 24009(a) (1988 & Supp. 2001). Most cities in California have their own police departments, each headed by an appointed chief, though some incorporated and all unincorporated areas rely upon the county sheriff for local law enforcement. See CAL. GOV'T CODE §§ 36501, 36505 (1988 & Supp. 2001).
101. Appendix B to this Article lists the counties and cities that I surveyed and notes which agencies responded to the Public Records Act requests.
102. See infra Appendix B.
103. The monthly broadcast, formerly titled Case Law Updates, is now called Case Law Today. Each broadcast contains a series of short topics. For a list of broadcasts and topics, see Case Law Today Broadcasts at http://www.post.ca.gov/cptn/casebrod.htm (last visited Mar. 1, 2001).
104. According to a POST analyst, over 7,000 POST-approved training courses are offered each year. See Letter from Anna del Porto, Associate Analyst, POST (Oct. 11, 2000) (on file with author). A recent catalog of POST-approved courses runs 263 pages. See COMM'N ON PEACE OFFICER STANDARDS AND TRAINING, POST CATALOG OF CERTIFIED COURSES (Sept. 2000). It lists 17 advanced courses on interrogation and interviews from POST-approved providers (see id. at 174-76), though many other advanced courses also deal with interrogation. The current catalog may be viewed at http://www.post.ca.gov-/catalog/ intro.htm (last visited Mar. 1, 2001).
105. According to a POST analyst, over 7,000 POST-approved training courses are offered each year. See Letter from Anna del Porto, Associate Analyst, POST (Oct. 11, 2000) (on file with author). A recent catalog of POST-approved courses runs 263 pages. See COMM'N ON PEACE OFFICER STANDARDS AND TRAINING, POST CATALOG OF CERTIFIED COURSES (Sept. 2000). It lists 17 advanced courses on interrogation and interviews from POST-approved providers (see id. at 174-76), though many other advanced courses also deal with interrogation. The current catalog may be viewed at http://www.post.ca.gov-/catalog/ intro.htm (last visited Mar. 1, 2001).
106. See Videotape: Case Law Updates: Questioning "Outside Miranda" for Impeachment (Golden West College) (POST July 9, 1998) (on file with author) [hereinafter Videotape 1].
107. Branscombe was depublished on June 24, 1998, see supra note 41, two weeks before the videotape was broadcast. The videotape segment is undated, and may have been produced prior to the order depublishing the decision.
108. Videotape 1, supra note 96.
109. Id.
110. See Videotape: Case Law Updates: Miranda: Beginning to Crumble? (Golden West College) (POST May 6, 1999) (on file with author).
111. Id. He adds that "[T]his could be the beginning of the end of Miranda. I don't want to be too optimistic. . . . But the Fourth Circuit says we are on our way on that mission." Id.
112. See Videotape: Case Law Today: Miranda: Ignoring Invocation by Upset Subject Collapses Case (Alameda County Dist. Attorney's Office) (POST Aug. 5, 1999) (on file with author).
113. Id.
114. See Videotape: Case Law Today: Civil Liability "Outside Miranda?" Cal. Att'ys for Crim. Justice v. Butts (Golden West College) (POST Jan. 13, 2000) (on file with author).
115. Id.
116. Id.
117. See POST Case Law Today Broadcasts, available at http://www.post.-ca.gov/cptn/ casebrod.htm.
118. See CAL. PENAL CODE §§ 13510.1, 13511.3, 13519.9 (2000).
119. Memorandum from Kenneth J. O'Brien, Executive Director, Commission on Peace Officer Standards and Training to POST Certified Training Presenters 1 (Aug. 14, 2000) (on file with author).
120. Id. The memorandum provides: Recently the United States Supreme Court ruled that Miranda procedures were a "constitutional rule" and that Congress could not supersede the safeguards established by the court decision legislatively. The Court preserved the defendant's Fifth Amendment protections established in Miranda. Certified POST curriculum has always included a "respect" for the protections established in the Miranda decision and a prohibition against illegal or improper misconduct. As a result of the recent reaffirmation of the rights established in the Miranda decision, the following points need to be repeated as the Commission's policy: • No officer shall intentionally violate Miranda by continuing to interrogate a suspect after they have invoked their right to counsel or to remain silent. • No officer shall engage in any conduct that can be concluded to be "coercive" including making false promises following the invocation of Miranda rights. Procedures related to the "impeachment" exception are a matter of local policy and are referred to each independent agency for clarification. The POST Commission is committed to compliance with the "spirit" as well as the letter of the Supreme Court's ruling. Id.
121. SOURCEBOOK , supra note 21, § 7.40a-b (Rev. Mar. 1997).
122. See SOURCEBOOK, supra note 21, § 7.40a (Rev. July 1998) (on file with author) (noting that an "outside Miranda" statement "may be used to impeach the defendant regardless whether the police non-compliance with Miranda's procedures was negligent (accidental) or intentional"); id. § 7.48b ("[I]f you fail to comply with the Miranda guidelines in a non-coercive way, although any statement you obtain will be inadmissible at trial to prove guilt (i.e., in the prosecution's 'case-in-chief'), that is the only 'penalty.' The statement will be admissible in rebuttal to impeach. . .; you can also use the statement for any other purpose.") (citations omitted).
123. See id. § 7.40b.
124. Id.
125. Id. § 7.48b.
126. SOURCEBOOK. supra note 21, § 7.40b (Rev. Jan. 2000).
127. Id. § 7.40c.
128. SOURCEBOOK, supra note 21, § 7.40c (Rev. Sept. 2000) (emphasis in original).
129. Id. § 7.40d (emphasis in original); see also id. § 7.86 (stating that even a noncoercive Miranda violation may result in civil rights liability where it is intentional and done in combination with some other conduct).
130. Id. § 7.48a.
131. Devallis Rutledge, Questioning "Outside Miranda," in DID YOU KNOW. . . 1995, at 4 (Cal. Dist. Attorney's Ass'n, DID You KNOW. . . Series, June 1995) (on file with author) (quoting Cooper v. Dupnik, 963 F.2d 1220, 1244 (9th Cir. 1992), and Oregon v. Hass, 420 U.S. 714, 723 (1975)).
132. Robert C. Phillips, Miranda and the Constitution, in DID YOU KNOW . . . 2000, at 2 (Cal. Dist. Attorney's Ass'n, DID YOU KNOW. . . Series, Feb. 2000) (on file with author); see also Robert C. Phillips, After a Miranda Invocation: The Interrogator's Options, in DID YOU KNOW . . . 2001, at 1 (Cal. Dist. Attorney's Ass'n. DID YOU KNOW. . . Series, Jan. 2001) (on file with author) (describing other circumstances in which police may permissibly reinitiate interrogation after an invocation, and stating that prosecutors "probably have a professional, if not ethical, duty to discourage law enforcement" from questioning "outside Miranda").
133. Robert C. Phillips, Miranda and the Constitution, in DID YOU KNOW . . . 2000, at 2 (Cal. Dist. Attorney's Ass'n, DID YOU KNOW. . . Series, Feb. 2000) (on file with author); see also Robert C. Phillips, After a Miranda Invocation: The Interrogator's Options, in DID YOU KNOW . . . 2001, at 1 (Cal. Dist. Attorney's Ass'n. DID YOU KNOW. . . Series, Jan. 2001) (on file with author) (describing other circumstances in which police may permissibly reinitiate interrogation after an invocation, and stating that prosecutors "probably have a professional, if not ethical, duty to discourage law enforcement" from questioning "outside Miranda").
134. Robert C. Phillips, Miranda Lives, in DID YOU KNOW . . . 2000, at 3 (California Dist. Attorney's Ass'n, DID YOU KNOW. . . Series, July 2000) (on file with author).
135. ROBERT C. PHILLIPS, MIRANDA AND THE LAW (1999).
136. See id. at 144-48, 163-68.
137. See CAL. PEACE OFFICERS' ASS'N, TRAINING BULL. SERV., MIRANDA UPDATE -QUESTIONING "OUTSIDE" MIRANDA 1 (Aug. 2000) (on file with author). "Fall of 1999" most likely refers to the ruling in Butts. 127. Id. (emphases in original).
138. Special Directive 98-02 from Robert P. Heflin, Chief Deputy District Attorney, to All Deputy District Attorneys and All District Attorney Investigators 1 (June 18, 1998) (on file with author) (original language in bold).
139. See ORANGE COUNTY DIST. ATTORNEY, GOOD TO KNOW . . ., IMPEACHMENT WITH POST-INVOCATION STATEMENTS 1-2 (May 1998) (on file with author). The same trainer appeared in the POST videotapes following the Peevy and Butts decisions.
140. See id. at 2.
141. Id. (original in brackets).
142. Alameda is a large, urban county in northern California that includes the City of Oakland. The population of Alameda County and Oakland as of April 2000 are 1,443,741 and 399,484, respectively. The population data are from the U.S. Census Bureau and are available at http://factfinder.census.gov (last visited Apr. 20, 2001).
143. The videotapes are distributed to police agencies; Alameda County prosecutors do not watch them. E-mail from William M. Baldwin, Assistant District Attorney to Charles D. Weisselberg (Aug. 28, 2000) (on file with author).
144. See ALAMEDA COUNTY DIST. ATTORNEY'S OFFICE, POINT OF VIEW, The Law of Police Interrogation; Miranda: Part Two, at 15-16 (Spring 1993) [hereinafter POINT OF VIEW] (on file with author).
145. See POINT OF VIEW, supra note 134, People v. Bey, at 22 (Spring 1994) (on file with author) ("It should come as no surprise that the courts are not going to sit by and watch as officers conduct custodial interrogations 'outside Miranda'. . . . We had hoped this issue had been put to rest in 1991 when the Court of Appeal published its decision in [another "outside Miranda" case]."); see also POINT OF VIEW, supra note 134, People v. Peevy, at 16 (Summer 1998) (on file with author) (indicating disapproval of the practice).
146. See POINT OF VIEW, supra note 134, People v. Bey, at 22 (Spring 1994) (on file with author) ("It should come as no surprise that the courts are not going to sit by and watch as officers conduct custodial interrogations 'outside Miranda'. . . . We had hoped this issue had been put to rest in 1991 when the Court of Appeal published its decision in [another "outside Miranda" case]."); see also POINT OF VIEW, supra note 134, People v. Peevy, at 16 (Summer 1998) (on file with author) (indicating disapproval of the practice).
147. See POINT OF VIEW, supra note 134, Henry v. Kernan, at 31-32 (Summer 1999) (on file with author). The article ends with this noncommittal comment: "Eventually, the legality of 'going outside Miranda' will have to be decided by the United States Supreme Court. The sooner, the better." Id. at 32.
148. See POINT OF VIEW, supra note 134, McNally v. Butts et al. [sic], at 21 (Winter 2000) (on file with author).
149. Dickerson v. United States, POINT OF VIEW ONLINE, available at http://www.co.-alameda.ca.us/da/pov/dickerson_2.htm (last visited Mar. 1, 2001).
150. Videotape: Point of View: Evading Miranda; Peevy (Alameda County Dist. Attorney's Office, July 7, 1998) (on file with author). The trainer points out that Miranda is not a constitutional rule, but officers should not throw away their Miranda cards. Id. 140. See Videotape: Point of View: Investigation: Beyond Miranda (Alameda County Dist. Attorney's Office, Aug. 24, 1998) (on file with author).
151. Id. Further, "if the defendant takes the stand, we may then take these statements obtained by going beyond Miranda, not as a result of coercion, but simply going beyond the original Miranda concept that we all had and we're now learning is wrong, to keep him from getting away with perjury." Id. 142. Videotape: Point of View: The Limits of "Beyond Miranda; Henry v. Kernman [sic] (Alameda County Dist. Attorney's Office, June 15, 1999) (on file with author).
152. Id.
153. See Videotape: Point of View: Beyond Miranda Back in Court (Alameda County Dist. Attorney's Office, Dec. 6, 1999) (on file with author).
154. Id.
155. See ALAMEDA COUNTY DIST. ATTORNEY'S OFFICE, CALIFORNIA CRIMINAL INVESTIGATION 197 (2000) (on file with author).
156. ALAMEDA COUNTY DIST. ATTORNEY'S OFFICE, CALIFORNIA CRIMINAL INVESTIGATION - INTERNET UPDATE, available at http://www.co.alameda.ca.us/da/cci/ -confessions_24.htm (last visited Sept. 2000).
157. Id.
158. San Diego is large county in southern California with both urban and rural areas. It includes the Cities of San Diego and Oceanside. The populations of San Diego County and the Cities of San Diego and Oceanside as of April 2000 are 2,813,833, 1,223,400, and 161,029, respectively. The population data are from the U.S. Census Bureau and are available at http://factfinder.census.gov (last visited Apr. 20, 2001).
159. ROBERT C. PHILLIPS, MIRANDA AND THE LAW (1999).
160. Telephone Conversation with Craig Rooten, Deputy District Attorney, San Diego County (Sept. 8, 2000).
161. See Robert C. Phillips, Miranda: An Update 3-7 (Oct. 9, 2000) (unpublished manuscript, on file with author).
162. Id. at 15.
163. In addition to the office's formal legal updates, some individual prosecutors working with specific law enforcement agencies have distributed their own bulletins. See, e.g., David J. Lattuca, Legal Update 1 (Nov. 1999) (on file with author) (discussing Butts); David J. Lattuca, Legal Update 1-2 (May 1998) (on file with author) (discussing Peevy).
164. In addition to the office's formal legal updates, some individual prosecutors working with specific law enforcement agencies have distributed their own bulletins. See, e.g., David J. Lattuca, Legal Update 1 (Nov. 1999) (on file with author) (discussing Butts); David J. Lattuca, Legal Update 1-2 (May 1998) (on file with author) (discussing Peevy).
165. See SAN DIEGO DIST. ATTORNEY'S OFFICE, D.A. LIAISON LEGAL UPDATE, Miranda, at 3 (May 1998), available at http://www.clew.org/legalupdate (last visited Mar. 1, 2001) [hereinafter D.A. LIAISON LEGAL UPDATE].
166. Id. at 4.
167. See D.A. LIAISON LEGAL UPDATE, supra note 155, Case Law: Miranda, at 1-2 (April 1999).
168. See D.A. LIAISON LEGAL UPDATE, supra note 155, Case Law: Miranda, at 5 (Oct. 1999).
169. See D.A. LIAISON LEGAL UPDATE, supra note 155, Administrative Notes: Miranda and Civil Liability, at 1 (Nov. 1999).
170. Id. at 3-4.
171. See D.A. LIAISON LEGAL UPDATE, supra note 155, Case Law: Miranda, at 3 (July 2000).
172. Id. at 4.
173. Copies of the updates as well as the POST videos were produced by the Oceanside Police Department in response to the Public Records Act Request. See also E-mail from Sgt. Tom Bussey, Oceanside Police Dep't, to Charles D. Weisselberg (Oct. 17, 2000) (on file with author).
174. Department Broadcast from Sherman Block, Sheriff, Los Angeles County, to All Personnel 1-2 (Jan. 29, 1998) (on file with author).
175. Letter from Diana L. Field, Ferguson, Praet & Sherman, to Charles D. Weisselberg 2 (Sept. 27, 2000) (on file with author).
176. See, e.g., Client Alert Memorandum from Martin J. Mayer, Mayer & Coble, to All Police Chiefs and Sheriffs (June 30, 2000) (on file with author); Memorandum from Bruce D. Praet, Ferguson, Praet & Sherman, to All Chiefs and Sheriffs (June 29, 2000) (on file with author); Client Alert Memorandum from Paul R. Coble, Mayer & Coble, to All Police Chiefs and Sheriffs (Nov. 17, 1999) (on file with author).
177. See People v. Peevy, 953 P.2d 1212, 1225-28 (Cal. 1998).
178. 436 U.S. 658 (1978).
179. For a discussion of the issuance of policies by police departments in the wake of Monell, see JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 201-05 (1993).
180. Nineteen out of thirty sheriffs' and police departments responded to the Public Records Act requests. See infra Appendix B. The Los Angeles Police Department did not respond, but I have obtained materials from that department through other sources.
181. The sheriffs issuing such directives represent the counties of San Bernardino, see Interoffice Memorandum from Gary S. Penrod, Sheriff, San Bernardino County, to All Station/Division Commanders (July 26, 2000) (on file with author); Notice: Interrogations "Outside" Miranda from Gary S. Penrod to All Personnel (undated) (on file with author); Shasta, see SHASTA COUNTY SHERIFF'S DEP'T, TRAINING BULL. 2000-04, Miranda Update (July 2000) (on file with author); Riverside, see Departmental Directive # 00-019 from Larry D. Smith, Sheriff, Riverside County, to All Personnel (July 5. 2000) (on file with author); Fresno, see FRESNO COUNTY SHERIFF'S DEP'T, ROLL CALL TRAINING BULL., Ninth Circuit Prohibition of Interrogations "Outside Miranda" (Mar. 29, 2000); and Los Angeles, see Department Broadcast, supra note 164. The police chiefs issuing the directives were of the cities of Stockton, see Special Order No. 00-S-160 from Edward J. Chavez, Chief, Stockton Police Dep't, to All Personnel (Sept. 6, 2000) (on file with author); Redding, see General Order A-53 from Robert P. Blankenship, Chief of Police, Redding Police Dep't, to All Personnel (July 31, 2000) (on file with author); San Jose, see Memorandum from William M. Lansdowne, Chief of Police, San Jose Police Dep't, to All Sworn Personnel (Dec. 15, 1999) (on file with author); Bakersfield, see BAKERSFIELD POLICE DEP'T, TRAINING BULL., Ninth Circuit Court Prohibition of Interrogations "Outside Miranda" (Dec. 1999) (on file with author); Los Angeles, see Notice 3.3.1 from Bernard C. Parks, Chief of Police, Los Angeles Police Dep't, to All Sworn Personnel (Dec. 2, 1999) (on file with author); and Riverside, see General Order No. 99-15 from Gerald L. Carroll, Chief of Police, Riverside Police Dep't, to All Personnel (Nov. 15, 1999) (on file with author). I have included the training bulletins from the Fresno and Shasta Sheriffs' Departments on this list even though they are not, per se, directives from the counties' sheriffs, but are rather from others within the sheriff's departments. The bulletins are phrased in sufficiently clear and mandatory language that they would be taken as orders by the sheriffs' deputies. I have excluded a bulletin from the San Francisco District Attorney to the San Francisco Police Department, which asks that officers be advised to stop questioning upon an invocation. See Memorandum from District Attorney Terence Hallinan to Police Legal Affairs (July 17, 2000) (on file with author). The bulletin was distributed to investigators and possibly others in the police department, but is not viewed as a directive from the department itself. Telephone Conversation with Lt. Henry C. Hunter, San Francisco Police Dep't (Oct. 31, 2000).
182. The sheriffs issuing such directives represent the counties of San Bernardino, see Interoffice Memorandum from Gary S. Penrod, Sheriff, San Bernardino County, to All Station/Division Commanders (July 26, 2000) (on file with author); Notice: Interrogations "Outside" Miranda from Gary S. Penrod to All Personnel (undated) (on file with author); Shasta, see SHASTA COUNTY SHERIFF'S DEP'T, TRAINING BULL. 2000-04, Miranda Update (July 2000) (on file with author); Riverside, see Departmental Directive # 00-019 from Larry D. Smith, Sheriff, Riverside County, to All Personnel (July 5. 2000) (on file with author); Fresno, see FRESNO COUNTY SHERIFF'S DEP'T, ROLL CALL TRAINING BULL., Ninth Circuit Prohibition of Interrogations "Outside Miranda" (Mar. 29, 2000); and Los Angeles, see Department Broadcast, supra note 164. The police chiefs issuing the directives were of the cities of Stockton, see Special Order No. 00-S-160 from Edward J. Chavez, Chief, Stockton Police Dep't, to All Personnel (Sept. 6, 2000) (on file with author); Redding, see General Order A-53 from Robert P. Blankenship, Chief of Police, Redding Police Dep't, to All Personnel (July 31, 2000) (on file with author); San Jose, see Memorandum from William M. Lansdowne, Chief of Police, San Jose Police Dep't, to All Sworn Personnel (Dec. 15, 1999) (on file with author); Bakersfield, see BAKERSFIELD POLICE DEP'T, TRAINING BULL., Ninth Circuit Court Prohibition of Interrogations "Outside Miranda" (Dec. 1999) (on file with author); Los Angeles, see Notice 3.3.1 from Bernard C. Parks, Chief of Police, Los Angeles Police Dep't, to All Sworn Personnel (Dec. 2, 1999) (on file with author); and Riverside, see General Order No. 99-15 from Gerald L. Carroll, Chief of Police, Riverside Police Dep't, to All Personnel (Nov. 15, 1999) (on file with author). I have included the training bulletins from the Fresno and Shasta Sheriffs' Departments on this list even though they are not, per se, directives from the counties' sheriffs, but are rather from others within the sheriff's departments. The bulletins are phrased in sufficiently clear and mandatory language that they would be taken as orders by the sheriffs' deputies. I have excluded a bulletin from the San Francisco District Attorney to the San Francisco Police Department, which asks that officers be advised to stop questioning upon an invocation. See Memorandum from District Attorney Terence Hallinan to Police Legal Affairs (July 17, 2000) (on file with author). The bulletin was distributed to investigators and possibly others in the police department, but is not viewed as a directive from the department itself. Telephone Conversation with Lt. Henry C. Hunter, San Francisco Police Dep't (Oct. 31, 2000).
183. The sheriffs issuing such directives represent the counties of San Bernardino, see Interoffice Memorandum from Gary S. Penrod, Sheriff, San Bernardino County, to All Station/Division Commanders (July 26, 2000) (on file with author); Notice: Interrogations "Outside" Miranda from Gary S. Penrod to All Personnel (undated) (on file with author); Shasta, see SHASTA COUNTY SHERIFF'S DEP'T, TRAINING BULL. 2000-04, Miranda Update (July 2000) (on file with author); Riverside, see Departmental Directive # 00-019 from Larry D. Smith, Sheriff, Riverside County, to All Personnel (July 5. 2000) (on file with author); Fresno, see FRESNO COUNTY SHERIFF'S DEP'T, ROLL CALL TRAINING BULL., Ninth Circuit Prohibition of Interrogations "Outside Miranda" (Mar. 29, 2000); and Los Angeles, see Department Broadcast, supra note 164. The police chiefs issuing the directives were of the cities of Stockton, see Special Order No. 00-S-160 from Edward J. Chavez, Chief, Stockton Police Dep't, to All Personnel (Sept. 6, 2000) (on file with author); Redding, see General Order A-53 from Robert P. Blankenship, Chief of Police, Redding Police Dep't, to All Personnel (July 31, 2000) (on file with author); San Jose, see Memorandum from William M. Lansdowne, Chief of Police, San Jose Police Dep't, to All Sworn Personnel (Dec. 15, 1999) (on file with author); Bakersfield, see BAKERSFIELD POLICE DEP'T, TRAINING BULL., Ninth Circuit Court Prohibition of Interrogations "Outside Miranda" (Dec. 1999) (on file with author); Los Angeles, see Notice 3.3.1 from Bernard C. Parks, Chief of Police, Los Angeles Police Dep't, to All Sworn Personnel (Dec. 2, 1999) (on file with author); and Riverside, see General Order No. 99-15 from Gerald L. Carroll, Chief of Police, Riverside Police Dep't, to All Personnel (Nov. 15, 1999) (on file with author). I have included the training bulletins from the Fresno and Shasta Sheriffs' Departments on this list even though they are not, per se, directives from the counties' sheriffs, but are rather from others within the sheriff's departments. The bulletins are phrased in sufficiently clear and mandatory language that they would be taken as orders by the sheriffs' deputies. I have excluded a bulletin from the San Francisco District Attorney to the San Francisco Police Department, which asks that officers be advised to stop questioning upon an invocation. See Memorandum from District Attorney Terence Hallinan to Police Legal Affairs (July 17, 2000) (on file with author). The bulletin was distributed to investigators and possibly others in the police department, but is not viewed as a directive from the department itself. Telephone Conversation with Lt. Henry C. Hunter, San Francisco Police Dep't (Oct. 31, 2000).
184. The sheriffs issuing such directives represent the counties of San Bernardino, see Interoffice Memorandum from Gary S. Penrod, Sheriff, San Bernardino County, to All Station/Division Commanders (July 26, 2000) (on file with author); Notice: Interrogations "Outside" Miranda from Gary S. Penrod to All Personnel (undated) (on file with author); Shasta, see SHASTA COUNTY SHERIFF'S DEP'T, TRAINING BULL. 2000-04, Miranda Update (July 2000) (on file with author); Riverside, see Departmental Directive # 00-019 from Larry D. Smith, Sheriff, Riverside County, to All Personnel (July 5. 2000) (on file with author); Fresno, see FRESNO COUNTY SHERIFF'S DEP'T, ROLL CALL TRAINING BULL., Ninth Circuit Prohibition of Interrogations "Outside Miranda" (Mar. 29, 2000); and Los Angeles, see Department Broadcast, supra note 164. The police chiefs issuing the directives were of the cities of Stockton, see Special Order No. 00-S-160 from Edward J. Chavez, Chief, Stockton Police Dep't, to All Personnel (Sept. 6, 2000) (on file with author); Redding, see General Order A-53 from Robert P. Blankenship, Chief of Police, Redding Police Dep't, to All Personnel (July 31, 2000) (on file with author); San Jose, see Memorandum from William M. Lansdowne, Chief of Police, San Jose Police Dep't, to All Sworn Personnel (Dec. 15, 1999) (on file with author); Bakersfield, see BAKERSFIELD POLICE DEP'T, TRAINING BULL., Ninth Circuit Court Prohibition of Interrogations "Outside Miranda" (Dec. 1999) (on file with author); Los Angeles, see Notice 3.3.1 from Bernard C. Parks, Chief of Police, Los Angeles Police Dep't, to All Sworn Personnel (Dec. 2, 1999) (on file with author); and Riverside, see General Order No. 99-15 from Gerald L. Carroll, Chief of Police, Riverside Police Dep't, to All Personnel (Nov. 15, 1999) (on file with author). I have included the training bulletins from the Fresno and Shasta Sheriffs' Departments on this list even though they are not, per se, directives from the counties' sheriffs, but are rather from others within the sheriff's departments. The bulletins are phrased in sufficiently clear and mandatory language that they would be taken as orders by the sheriffs' deputies. I have excluded a bulletin from the San Francisco District Attorney to the San Francisco Police Department, which asks that officers be advised to stop questioning upon an invocation. See Memorandum from District Attorney Terence Hallinan to Police Legal Affairs (July 17, 2000) (on file with author). The bulletin was distributed to investigators and possibly others in the police department, but is not viewed as a directive from the department itself. Telephone Conversation with Lt. Henry C. Hunter, San Francisco Police Dep't (Oct. 31, 2000).
185. See, e.g., LOS ANGELES COUNTY SHERIFF'S DEP'T, FIELD OPERATIONS SUPPORT SERVS., NEWSLETTER NO. 156, Miranda Warnings, at 1 (Re-released Sept. 2000) (on file with author); BAKERSFIELD POLICE DEP'T, TRAINING BULL., Ninth Circuit Court Prohibition of Interrogations "Outside Miranda" - Decision Affirmed (July 2000) (on file with author); Internal Communication from Sgt. Chuck Lebak, City of Redding, to All Sworn Personnel (July 26, 2000) (on file with author); see also Memorandum from District Attorney Terence Hallinan to Police Legal Affairs, supra note 171 (characterizing Dickerson as settling unequivocally whether questioning "outside Miranda" is permissible, and asking San Francisco Police Department to advise officers not to interrogate over an invocation); Special Order No. 00-S-160 from Edward J. Chavez, Chief, Stockton Police Dep't, to All Personnel, supra note 171 (noting that "the U.S. Supreme Court reaffirmed the Miranda decision in a Virginia case, and let stand a California case that said officers could be personally liable for deliberately trampling Miranda rights").
186. See, e.g., LOS ANGELES COUNTY SHERIFF'S DEP'T, FIELD OPERATIONS SUPPORT SERVS., NEWSLETTER NO. 156, Miranda Warnings, at 1 (Re-released Sept. 2000) (on file with author); BAKERSFIELD POLICE DEP'T, TRAINING BULL., Ninth Circuit Court Prohibition of Interrogations "Outside Miranda" - Decision Affirmed (July 2000) (on file with author); Internal Communication from Sgt. Chuck Lebak, City of Redding, to All Sworn Personnel (July 26, 2000) (on file with author); see also Memorandum from District Attorney Terence Hallinan to Police Legal Affairs, supra note 171 (characterizing Dickerson as settling unequivocally whether questioning "outside Miranda" is permissible, and asking San Francisco Police Department to advise officers not to interrogate over an invocation); Special Order No. 00-S-160 from Edward J. Chavez, Chief, Stockton Police Dep't, to All Personnel, supra note 171 (noting that "the U.S. Supreme Court reaffirmed the Miranda decision in a Virginia case, and let stand a California case that said officers could be personally liable for deliberately trampling Miranda rights").
187. The Public Records Act requests sought all training bulletins and materials referring to the practice of questioning "outside Miranda," regardless of date. See infra Appendix A. This should have elicited any orders pre-dating Peevy. Only the Los Angeles County Sheriff produced any directive telling officers not to question "outside Miranda" prior to the decision in Peevy, doing so in January, 1998. See supra note 164 and accompanying text.
188. E.g., Telephone Conversation with Lt. Henry C. Hunter, San Francisco Police Dep't (Oct. 31, 2000) (investigators will shortly be trained on Dickerson); Telephone Conversation with Lt. Casey Nice, Alameda County Sheriffs Office (Sept. 19, 2000) (deputies received roll-call training on Dickerson and have always been trained that questioning "outside Miranda" is risky); Letter from Carol A. Trujillo, Deputy City Attorney, San Diego, to Charles D. Weisselberg (Sept. 12, 2000) (on file with author) (officers receive monthly legal updates from the district attorney's office).
189. E.g., Letter from Matthew Etcheverry, Litigation Unit, Kern County Sheriff's Dep't, to Charles D. Weisselberg (Oct. 5, 2000) (on file with author) (department relies upon POST'S Learning Domain 16, and does "not deviate from, nor embellish this area of the law"); Letter from Lt. Ernie Smedlund, Santa Clara Sheriff's Dep't, to Charles D. Weisselberg (Aug. 29, 2000) (on file with author) (training has been not to question suspects "outside Miranda" and so "our practice has remained the same as it was prior to the Peevy decision"); Telephone Conversation with Sgt. Jeff Israel, Oakland Police Dep't. (Aug. 24, 2000) (Peevy, Henry, Butts and Dickerson have not affected training because the department has not trained officers to question "outside Miranda").
190. The one exception is the Los Angeles County Sheriff's Department. See supra note 164 and accompanying text.
191. Cal. Att'ys for Crim. Justice v. Butts, 195 F.3d 1039, 1050 (9th Cir. 1999). The sample of county sheriffs and police departments is, however, quite small and it is difficult to state this result as more than one researcher's impression.
192. In February 2001, my students and I filed a brief in the California Supreme Court in a case with a Miranda issue. We pointed out that many law enforcement officials did not change their training in the wake of Peevy. See Brief of California Attorneys for Criminal Justice, As Amicus Curiae, Supporting Petitioner, at 13-15, People v. Storm (No. S088712) (Cal. Sup. Ct.) (filed Feb. 1, 2001). In response, the State Attorney General argued that "[w]hile this Court's decision in Peevy clearly foreshadowed the United States Supreme Court's decision in Dickerson. . . , which held that Miranda and its progeny were constitutional rules, as opposed to mere rules of evidence, Proposition 8 necessitated guidance from the United States Supreme Court before Miranda and its progeny could be viewed as constitutionally based." People's Answer to Amicus Brief in Support of Appellant, at 2, People v. Storm (No. S088712) (Cal. Sup. Ct.) (filed Mar. 23, 2001). Proposition 8 is a California initiative passed in 1982. It added a new section to the state constitution providing that "relevant evidence shall not be excluded in any criminal proceeding." See CAL. CONST., art. I, § 28(d). A later initiative, Proposition 115, which passed in 1990, amended the California Constitution to provide that state courts should not construe the State Constitution to afford greater rights than the federal Constitution. See CAL. CONST., art. I, § 24. While these sections might require a state court to analyze federal constitutional law, neither section provides that a state court's construction of federal constitutional law should not be authoritative or binding within California.
193. The apparent lack of respect for the state court's ruling on issues of federal law is particularly disconcerting because it comes at a time when Congress has decided to require federal courts to defer to state court rulings on issues of federal law that disfavor habeas corpus petitioners. See 28 U.S.C.A. § 2254(d) (1) (West Supp. 2000) (habeas corpus relief shall not be granted unless the state court's adjudication of the claim §resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States§).
194. See, e.g., Minnick v. Mississippi, 498 U.S. 146, 151 (1990) ("The merit of the Edwards decision lies in the clarity of its command and the certainty of its application."); Arizona v. Roberson, 486 U.S. 675, 681 (1988) ("We have repeatedly emphasized the virtues of a bright-line rule in cases following Edwards as well as Miranda."); Fare v. Michael C., 442 U.S. 707. 718 (1979) ("Whatever the defects, if any, of [the] relatively rigid requirement that interrogation must cease upon the accused's request for an attorney, Miranda's holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation. . . .").
195. See supra note 121 and accompanying text.
196. Sharon L. Davies, The Penalty of Exclusion - A Price or Sanction?, 73 S. CAL. L. REV. 1275, 1277-79 (2000).
197. Under this view, there is nothing inherently wrong with questioning "outside Miranda." It simply has an evidentiary consequence - a "price" - that may be internalized by prosecutors and police. See, e.g., SOURCEBOOK, supra note 21, § 7.48b (Rev. July 1998) ("[I]f you fail to comply with the Miranda guidelines in a non-coercive way, although any statement you obtain will be inadmissible at trial to prove guilt (i.e., in the prosecution's 'case-in-chief'), that is the only 'penalty.'"); SOURCEBOOK, supra note 21, § 7.40b (Rev. Mar. 1997) ("[T]he Miranda decision is not a code of conduct setting forth how police must conduct their investigations in the field."); Videotape, supra note 21, transcript reprinted in Weisselberg, supra note 3, at 191 ("[Miranda is] a court-created decision that affects the admissibility of testimonial evidence and that's all it is. . . . The only consequence of your talking to somebody who has invoked his rights is we will not be able to use his statement in the case in chief in trial against him.").
198. Under this view, there is nothing inherently wrong with questioning "outside Miranda." It simply has an evidentiary consequence - a "price" - that may be internalized by prosecutors and police. See, e.g., SOURCEBOOK, supra note 21, § 7.48b (Rev. July 1998) ("[I]f you fail to comply with the Miranda guidelines in a non-coercive way, although any statement you obtain will be inadmissible at trial to prove guilt (i.e., in the prosecution's 'case-in-chief'), that is the only 'penalty.'"); SOURCEBOOK, supra note 21, § 7.40b (Rev. Mar. 1997) ("[T]he Miranda decision is not a code of conduct setting forth how police must conduct their investigations in the field."); Videotape, supra note 21, transcript reprinted in Weisselberg, supra note 3, at 191 ("[Miranda is] a court-created decision that affects the admissibility of testimonial evidence and that's all it is. . . . The only consequence of your talking to somebody who has invoked his rights is we will not be able to use his statement in the case in chief in trial against him.").
199. As Davies explains, there is a sharp discontinuity in liability when a sanctioning penalty is in place. Actors nearing the line separating permissible and forbidden conduct will not balance costs and benefits in the margin, but will tend to conform to the rule. See Davies, supra note 182, at 1290-92. Here, especially, Davies heavily draws upon the work of Robert Cooter. See id. at 1291 nn.65-69 and accompanying text; Robert Cooter, Prices and Sanctions, 84 COLUM. L. REV. 1523 (1984).
200. As Davies explains, there is a sharp discontinuity in liability when a sanctioning penalty is in place. Actors nearing the line separating permissible and forbidden conduct will not balance costs and benefits in the margin, but will tend to conform to the rule. See Davies, supra note 182, at 1290-92. Here, especially, Davies heavily draws upon the work of Robert Cooter. See id. at 1291 nn.65-69 and accompanying text; Robert Cooter, Prices and Sanctions, 84 COLUM. L. REV. 1523 (1984).
201. See Davies, supra note 182, at 1296-97, 1314-15.
202. Applying Davies' theory, it may be that Miranda's legal obligation is not backed by a sufficiently strong penalty to gain the incentive effects of characterizing the exclusionary rule as a sanction instead of a price. If the sanction is not strong, actors nearing the line between permissible and impermissible conduct will not be deterred from simply balancing their own costs and benefits in the margin.
203. See supra notes 77-80 and accompanying text.
204. See 197 F.3d 1021, 1028 (9th Cir. 1999) (noting that the officer "took unfair advantages" of the compelling pressures inherent in a custodial interrogation, and that "[a]ny minimally trained police officer should have known such pressure was improper and likely to produce involuntary statements").
205. Cf. Perrin et al., supra note 87, at 739-40 (discussing why few victims of Fourth Amendment violations sue under § 1983).
206. His observations are published in JEROME H. SKOLNICK, JUSTICE WITHOUT TRIAL (3d ed. 1994).
207. California adopted its rule in People v. Cahan, 282 P.2d 905 (Cal. 1955), six years before the United States Supreme Court decided Mapp v. Ohio, 367 U.S. 643 (1961), and applied the exclusionary rule to all the states.
208. SKOLNICK, supra note 190, at 214.
209. Id. at 215.
210. See Jonathan Simon & Jerome H. Skolnick, Federalism, the Exclusionary Rule, and the Police, in POWER DIVIDED: ESSAYS ON THE THEORY AND PRACTICE OF FEDERALISM 75, 80 (Harry N. Scheiber & Malcolm M. Feeley eds., 1989).
211. Id.; see also SAMUEL WALKER, TAMING THE SYSTEM: THE CONTROL OF DISCRETION IN CRIMINAL JUSTICE 1950-1990 at 152-53 (1993) (describing how agency officials develop their own group norms about how things should be done, which are highly resistant to externally imposed changes).
212. In addition to police training, other important parts of the change in departmental norms included: greater involvement of prosecutors with police; increased visibility of police practices; police managers' acceptance of legal norms as a mechanism for controlling line officers; and use of suppression hearings to reinforce police appreciation for legal procedures. See Simon & Skolnick, supra note 194, at 80-85.
213. See Myron W. Orfield, Jr., Comment, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. CHI. L. REV. 1016, 1049 n.128 (1987). The question was whether the respondents knew of any case in which a judge has "disbelieved police testimony at a suppression hearing." Id. A subsequent question asked how often judges were "right in disbelieving police testimony"; no officer answered "never." Id. at 1050 n.129.
214. See Orfield, supra note 87, at 98.
215. Id. at 108. According to Orfield, 29% of the respondents believe that police superiors discourage perjury, but that many in this category suggested that the efforts at discouragement were pro forma at best. Id. at 109.
216. Section 1983 provides, in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C. § 1983 (1995). Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), provides a counterpart for people whose constitutional rights have been violated by federal officials.
217. See Susan R. Klein, Miranda Deconstitutionalized: When the Self-Incrimination Clause and the Civil Rights Act Collide, 143 U. PA. L. REV. 417, 421-22 (1994) (noting, however, other obstacles to the application of § 1983); see also Martin R. Gardner, Section 1983 Actions Under Miranda: A Critical View of the Right to Avoid Interrogation, 30 AM. CRIM. L. REV. 1277, 1294-97 (1993) (noting the cases that hold that Miranda is not a "right" guaranteed by the Constitution, and so a violation cannot be raised under § 1983).
218. See Susan R. Klein, Miranda Deconstitutionalized: When the Self-Incrimination Clause and the Civil Rights Act Collide, 143 U. PA. L. REV. 417, 421-22 (1994) (noting, however, other obstacles to the application of § 1983); see also Martin R. Gardner, Section 1983 Actions Under Miranda: A Critical View of the Right to Avoid Interrogation, 30 AM. CRIM. L. REV. 1277, 1294-97 (1993) (noting the cases that hold that Miranda is not a "right" guaranteed by the Constitution, and so a violation cannot be raised under § 1983).
219. See, e.g., Jones v. Cannon, 174 F.3d 1271, 1290-91 (11th Cir. 1999) (stating that failure to warn or honor an invocation violates only a prophylactic rule, and does not support a § 1983 suit); Deshawn E. v. Safir. 156 F.3d 340, 346 (2d Cir. 1998) (no liability under § 1983 for failure to give Miranda warnings); Mahan v. Plymouth County House of Corrections, 64 F.3d 14, 17 (1st Cir. 1995) (same); Neighbour v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995) (same); Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994) (same); Lucero v. Gunter, 17 F.3d 1347, 1350-51 (10th Cir. 1994) (same); Brock v. Logan County Sheriff's Dep't of Ark., 3 F.3d 1215, 1217 (8th Cir. 1993) (same); Cooper v. Dupnik, 963 F.2d 1220, 1244 (9th Cir.) (no cause of action for "benign" questioning in violation of Miranda), cert. denied, 502 U.S. 868 (1992); Warren v. City of Lincoln, Nebraska, 864 F.2d 1436, 1442 (8th Cir.) (en banc) (no liability for failure to warn or honor invocation), cert. denied, 490 U.S. 1091 (1989); Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir. 1976) (same); see also Hutsell v. Sayre, 5 F.3d 996, 1005 n.13 (6th Cir. 1993) (citing Hensley with approval for the proposition that "a Miranda violation, without additional evidence of police coercion giving rise to a constitutional violation, does not state a cause of action under § 1983"), cert. denied, 510 U.S. 1119 (1994); Hensley v. Carey, 818 F.2d 646, 650 (7th Cir. 1987) (citing Bennett with approval), cert. denied, 484 U.S. 965 (1987).
220. Compare Deshawn E., 156 F.3d at 348 (noting that a Miranda violation that amounts to actual coercion based on outrageous governmental conduct can be basis for § 1983 suit, even though statement was not used in court), Weaver v. Brenner, 40 F.3d 527, 535 (2d Cir. 1994) (liability where statement introduced at any criminal proceeding), and Cooper, 963 F.2d at 1242-43 (holding that plaintiff can allege Fifth Amendment cause of action even though statement was not used in court), with Giuffre, 31 F.3d at 1256 (agreeing with dissent in Cooper), Wiley v. Doory, 14 F.3d 993, 998 (4th Cir. 1994) (holding that privilege against self-incrimination is not violated until evidence is admitted in a criminal case), and Davis v. City of Charleston, Missouri, 827 F.2d 317, 322 (8th Cir. 1987) (finding no liability for failure to give Miranda warnings where statement not introduced at trial). Cases holding that a Fifth Amendment violation may occur only when a statement is actually introduced at trial seem contrary to decisions such as New Jersey v. Portash, 440 U.S. 450 (1979) (affirming reversal of conviction where defendant stayed off the stand because of threatened impeachment use of immunized testimony), and Lefkowitz v. Cunningham, 431 U.S. 801 (1977) (striking down statute that divested official of his political office after he invoked the Fifth Amendment; no criminal charges were filed). My own view is that a Fifth Amendment violation occurs in the stationhouse but may occur again in court. See Weisselberg, supra note 3, at 179-81.
221. Dickerson v. United States, 120 S. Ct. 2326, 2333 (2000).
222. See supra notes 77-83 and accompanying text.
223. The question clearly weighs on the mind of Justice Scalia, who asked during the Dickerson argument: "Now, do you think that a policeman who fails to Mirandize the suspect, obtains a confession without having Mirandized them and then introduces that confession in court, is subject to suit? Do you know of any suit that has ever been brought?" Transcript of Oral Argument, Dickerson v. United States, 2000 U.S. TRANS LEXIS 41, at *2-3 (Apr. 19, 2000).
224. 507 U.S. 680 (1993).
225. 28 U.S.C. § 2254(a).
226. Dickerson, 120 S. Ct. at 2333 n.3.
227. One additional point bears mentioning. Evan Caminker has suggested that, under City of Boerne v. Flores, 521 U.S. 507 (1997), Congress might lack the power to impose civil liability upon police officers for interrogations that violate Miranda. When Congress enacts laws to remedy or prevent constitutional violations, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520. Dickerson should ease the burden of establishing congruence and proportionality. By rejecting the characterization of Miranda's procedures as nonconstitutional prophylactic rules - and, particularly, by its treatment of Withrow - the Court made it more apparent that civil rights lawsuits for Miranda violations are suits to remedy the specific denial of constitutional rights. Thus, the civil rights remedy would be directly based upon constitutional violations as defined by the Court and City of Boerne should prove no obstacle. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80-86 (2000) (finding that a statute failed to meet the congruence and proportionality test because it prohibited substantially more employment decisions than would be held unconstitutional under the Court's precedents). Further, to the extent that the laws permit damage actions (as opposed to actions seeking declaratory or injunctive relief), there should be little difficulty establishing proportionality. Finally, the civil rights remedy would be directed only to state actors, police officers and municipalities that function "under color of state law. See United States v. Morrison, 529 U.S. 598, 625-26 (2000) (holding that a statute directed at private individuals was not congruent and proportional).
228. See, e.g., Weaver v. Brenner, 40 F.3d 527, 535 (2d Cir. 1994) (§ 1983 action may be brought for use or derivative use of coerced confession in any criminal proceeding); Rex v. Teeples, 753 F.2d 840, 843 (10th Cir. 1985) (holding that "[e]xtracting an involuntary confession by coercion is a due process violation," actionable under § 1983), cert. denied, 474 U.S. 967 (1985).
229. 384 U.S. 737 (1966).
230. Id. at 740-41 (citations omitted); see also Withrow, 507 U.S. at 693-94 (noting that courts look at the totality of circumstances to determine whether a confession was voluntary, and those circumstances "include the failure of police to advise the defendant of his rights to remain silent and to have counsel present during custodial interrogation"); Mincey v. Arizona, 437 U.S. 385, 399-401 (1978) (finding a statement to be involuntary based in part upon the fact that the accused's request for counsel was ignored).
231. See Cal. Att'ys for Crim. Justice v. Butts, 195 F.2d 1039, 1047-49 (9th Cir. 1999); see also Rex, 753 F.2d at 843-44 (finding that the plaintiff had stated a civil rights cause of action for coercion where, among other things, he alleged a Miranda violation).
232. See FED. R. CIV. P. 56(c) ("The judgment sought shall be rendered forthwith if the pleadings . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.").