Interrogation of criminal suspects outside miranda: an update

By Marc J. Berger, Esq., Michael P. Stone, P.C., Lawyers

The ongoing saga of interrogation "outside Miranda" has taken a turn toward the right, but not such a sharp turn that we can change the advice we gave last time this issue popped up on our radar screen. The United States Supreme Court has issued a new decision, Chavez v. Martinez (May 27, 2003) 2003 DJDAR 5593, reversing the Ninth Circuit and holding that a police officer has no federal civil rights liability to a suspect who made potentially self-incriminating statements while being interrogated outside Miranda, where the suspect was not arrested, charged or brought to trial based on the statements, and the interrogation was not so coercive or extreme that it could be said to "shock the conscience."

In a case arising from an officer-involved shooting, the Court held that the proceedings never went far enough so that the questioning of the suspect became a completed violation of the Fifth Amendment right to remain silent. At the same time, the Court clarified that its decision did not preclude liability for questioning outside Miranda. While Fifth Amendment liability now requires some use of the statement in a criminal proceeding, the doctrine of "substantive due process" under the Fourteenth Amendment has always provided an alternative basis of liability for all forms of extremely oppressive governmental conduct. The Court in Chavez left that doctrine intact.

However, by holding that a claim of coercive interrogation without use of the statement in criminal proceedings will now be evaluated solely under Fourteenth Amendment "substantive due process," the Supreme Court indicates that only the very worst instances of this type of interrogation will be actionable. A claim for liability under the "substantive due process" doctrine is adjudicated under a very strict standard, as the plaintiff must show governmental conduct so extreme that it can be said to "shock the conscience." Rochin v. California (1952) 231 U.S. 165 (inducing vomiting to obtain narcotics evidence.)

As a result, a suspect seeking to impose civil liability for a Miranda violation where the statement has not been used criminally, must now show that the questioning not only violated Miranda, but also that it was so coercive and egregious as to "shock the conscience."

U. S. SUPREME COURT LIMITS CIVIL LIABILITY FOR INTERROGATION OUTSIDE MIRANDA

The key issue in Chavez was whether a Fifth Amendment violation is complete as soon as an assertion of the right of silence or counsel is not respected, or, whether on the other hand, the violation is not completed until the statement is used against the suspect in a criminal proceeding. The Supreme Court decided that when the statement is never used at all, there has been no Fifth Amendment violation.

The decision leaves open for future development the narrower question as to the exact point in the criminal process where civil liability may attach. The opinion calls into question the Ninth Circuit precedents on which our latest advice about Miranda relied, California Attorneys for Criminal Justice v. Butts 195 F.3d 1039 (9th Cir. 2000) , and Cooper v. Dupnik 963 F.2d 1220 (9th Cir. 1992), which had held that a Fifth Amendment violation is completed by any questioning outside Miranda, regardless whether or not the statement is ever used against the suspect.

But although the new Chavez decision tips the scales in civil court slightly in favor of law enforcement, it probably will not have a major effect on the conduct of officers in the field. At the time an officer makes a decision to continue interrogation outside Miranda, it cannot be known whether or not the prosecutors will elect to try to use the statement in a criminal case.

The Chavez decision therefore does not persuade us to change the advice we gave in the last article, which was: (1) do not press a suspect for a statement after an invocation of the right to silence or an attorney absent a clear, unequivocal, coercion-free decision to waive rights; (2) do not encourage suspects who have invoked Miranda rights to speak by saying the statement cannot be used against them; and (3) seek the advice from your Department legal advisor and from prosecutors on how to proceed, until this issue is finally resolved. And, while the Chavez decision shows the United States Supreme Court tending to restrict civil liability arising from Miranda violations, the California Supreme Court has recently displayed the opposite tendency, in a new ruling that reinforces the core Fifth Amendment protection against the use of silence as evidence in a criminal trial.

The constitutional issue addressed in Chavez arises from the widespread police practice of interrogating suspects after they invoke their Miranda right to counsel, knowing that even if the answers cannot be used in the prosecution's case, their admissibility as impeachment may well deter the suspect from testifying at trial. In Harris v. New York (1971) 401 U.S. 222, the Supreme Court ruled that statements taken in violation of Miranda, though inadmissible in the prosecution's case in chief, are nevertheless admissible as impeachment if the defendant testifies at trial.

As observed by the Ninth Circuit in Butts, the Los Angeles and Santa Monica Police Departments had fostered a practice of interrogating outside Miranda, with the goal of not simply using the statement for impeachment, but to deter the defendant from taking the stand at all. That practice, according to the Ninth Circuit, "corrupts" the impeachment exception as announced in Harris. Butts, 195 F.3d at 1049, quoting Cooper, 963 F.2d at 1249. The purpose of the Harris impeachment exception was to prevent a defendant from benefitting from dishonesty. It was not meant to encourage officers to deliberately violate Miranda.

In Cooper, a rape suspect was interrogated at length despite repeated requests for counsel. The suspect gave a lengthy statement. At one point the suspect said he was breaking down, and became physically ill, but did not confess, and turned out to be innocent. 963 F.2d at 1223, 1228-34. After being cleared, the suspect brought a federal civil rights suit alleging violations of the Fifth and Fourteenth Amendments, and claiming that because of the media announcement of his detention as a suspect, he had been fired and evicted.

Under the Fifth Amendment, the Court found a violation of not only Miranda, but also of the substantive Fifth Amendment right to remain silent. The Court found the plaintiff "adequately has stated a cause of action under section 1983 for a violation in the sheriff's department of his clearly established Fifth Amendment right against self-incrimination." Id. at 1242 (emphasis as in the original). The interrogators "conspired not only to ignore Cooper's response to the advisement of rights pursuant to Miranda, but also to defy any assertion of the Constitution's Fifth Amendment substantive right to silence, and to grill Cooper until he confessed." Id.

The Ninth Circuit explained that its holding in the case "does not create a Fifth Amendment cause of action under section 1983 for conduct that merely violates Miranda safeguards without also trespassing on the actual Constitutional right against self-incrimination that those safeguards are designed to protect." Id. at 1243-44. For example, no liability would arise where officers continue speaking to a suspect after an assertion of the right to remain silent, as long as there is no compulsion or coercion. Id. at 1244.

Analyzing the same conduct from a substantive due process perspective, the Court answered no to a rhetorical question whether coercing of a statement from a suspect in custody could "ripen into a full-blown Constitutional violation only if and when the statement is tendered and used against the declarant in court." Id. at 1244. Pointing to precedent for excluding involuntary statements, the Court concluded "the due process violation caused by coercive behavior of law-enforcement officers in pursuit of a confession is complete with the coercive behavior itself.... The actual use or attempted use of the coerced statement in a court of law is not necessary to complete the affront to the Constitution." Id. at 1245.

The fact the suspect was never charged and his statements were not offered into evidence was held "relevant only to damages, not to whether he has a civil cause of action in the first place." Id. The Fourteenth Amendment substantive due process analysis in Cooper remains good law, but a substantive due process violation requires the very strict "shock the conscience" standard.

The last time we discussed this issue on these pages was after the Ninth Circuit announced the Butts decision. In Butts, where Los Angeles and Santa Monica officers interrogated suspects outside Miranda in accordance with Department training, the Ninth Circuit held that an officer who violated a suspect's Miranda rights in that way could be subject to federal civil rights liability.

The officers in Butts defended the civil case under the qualified immunity doctrine, which protects government employees from federal civil rights liability except where their conduct violates clearly established constitutional or federal rights. The officers argued that the right to Miranda warnings is not in itself, a constitutional right, and not a right that is clearly established.

Supporting the argument that any rights violated were not clearly established, the officers asserted they were only following Department training in conducting interrogation outside Miranda.

The Ninth Circuit rejected the qualified immunity defense, and ruled that Miranda rights can be treated as constitutional rights, that questioning a suspect outside Miranda violates a constitutional right that is clearly established, and that following training and department policy is no excuse. 195 F.3d at 1049-50.

Rejecting the officers' argument that "Miranda is a prophylactic rule, not a constitutional right," the Court in Butts explained, "In the narrowest sense, this contention is correct: there is no constitutional right to the Miranda warnings themselves. But Miranda rights are brigaded with the right against self-incrimination and supply practical reinforcement for the Fifth Amendment right." Id. at 1045.

The Court observed that the Miranda decision itself had reversed a state court even though the statements were not "involuntary in traditional terms." Id. The Butts opinion thus recognizes a common distinction that arises repeatedly in Miranda cases, between statements that are actually involuntary, and statements that are presumed involuntary because of the absence of Miranda warnings. The Court in Butts, though aware of this distinction, did not attach any legal significance to it. The new Chavez decision, however, will inevitably focus the attention of future civil cases on this distinction. It will now appear to be more important for both criminal and civil purposes, to inquire, after establishing a violation of Miranda, whether or not the statement given after the violation was truly involuntary in the traditional sense.

Our advice from almost four years ago in response to the Butts holding remains the same today. We cannot receive this new Supreme Court decision as an open invitation to erode Miranda protections.

It remains prudent to refrain from deliberate interrogation outside Miranda. In defending against federal civil rights liability, the new decision gives officers better odds, but does not transform the landscape. At the time of deciding to continue interrogating a suspect who asserts a right to an attorney or to remain silent, no one knows whether or not the prosecutors would eventually seek to use the statement in a criminal proceeding. An appreciable possibility of being held liable for this conduct remains, and no one needs the prolonged agony of being sued. Officers should continue to keep updating themselves on advice from departmental and prosecutorial authorities as this issue evolves. In fact, a final resolution appears no closer than it did back in the quieter times of 1999.

In the new Chavez case, the suspect who was questioned had been involved in a scuffle with police where he was shot so badly he thought he was going to die, and ended up permanently blinded and paralyzed. The interrogator elicited admissions the suspect had fought with police and grabbed the officer's gun.

After the suspect made these admissions, the interrogator noticeably switched his emphasis to getting the suspect to say he thought he was about to die, which would have improved the grounds for admissibility of the statements about the incident. The interrogation did not end until medication was finally administered to the suspect. The suspect survived, and was not arrested, charged or prosecuted.

The suspect later sued for violation of his constitutional right to remain silent. The District Court and the Ninth Circuit held that the suspect had stated a valid civil rights claim, and that the officers were not entitled to qualified immunity. Based on Cooper, the Ninth Circuit held essentially that the Fifth Amendment right to remain silent was violated by the interrogation itself, never mind that it was never used at trial or in any official proceeding.

Reversing the Ninth Circuit, the Supreme Court held that regardless whether it is possible for questioning outside Miranda to violate the Fifth Amendment at some stage in litigation earlier than trial, it takes more than was done here to violate the Fifth Amendment. The Court emphasized that the text of the Fifth Amendment protects against self-incrimination in a "criminal case." Id. at 5594.

From the perspective of the text, the Court noted, "Although Martinez contends that the meaning of "criminal case" should encompass the entire criminal investigatory process, including police interrogations .... we disagree. In our view, a "criminal case" at the very least requires the initiation of legal proceedings." Id. at 5594-95. Therefore, "mere coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled statements in a criminal case against the witness." Id. at 5595.

Addressing the Cooper and Butts precedents, the Court observed that "The Ninth Circuit's view that mere compulsion violates the Self-Incrimination Clause ... finds no support in th text of the Fifth Amendment and is irreconcilable with our case law." Id. at 5596. However, the Court concluded that, "Our views on the proper scope of the Fifth Amendment's Self-Incrimination Clause do not mean that police torture or other abuse that results in a confession is constitutionally permissible so long as the statements are not used at trial; it simply means that the Fourteenth Amendment's Due Process Clause, rather than the Fifth Amendment's Self-Incrimination Clause, would govern the inquiry in those cases and provide relief in appropriate circumstances." Id.

In so saying, of course, the Supreme Court preserved civil claims based on interrogation outside Miranda, but at the same time also relegated such claims to the strict "shocks the conscience" standard that applies to substantive due process.

Henceforth, interrogation outside Miranda, without subsequent use of the statement in a criminal proceeding, will not violate the Fifth Amendment. Such interrogation, however, may violate the Fourteenth Amendment if it rises to the high level of egregiousness that applies to the substantive due process doctrine.

Benign conversation after a Miranda assertion will probably not be actionable. Tactical interrogation outside Miranda, designed to prevent the defendant from testifying, may well meet the Fourteenth Amendment standard, but not necessarily and not in all cases.

The interrogation in Cooper clearly met that standard, and Cooper is still good law on the Fourteenth Amendment. Though Butts did not address the Fourteenth Amendment standard, the interrogation there would probably meet that standard in the eyes of the Ninth Circuit, primarily because of the deliberate institutional effort to deter suspects from taking the stand, and the making of false assurances that the statement would be inadmissible, when in fact it could be used as impeachment. It would be a close and interesting question whether the United States Supreme Court would have found the interrogations in Butts to meet the "shocks the conscience" standard. But the "shocks the conscience" standard clearly was not met in Chavez, because the police were able to articulate a rational reason for conducting the questioning: the suspect was expected to die, and the information he could give would be important for the purpose of investigating any possible police misconduct in the incident.

In analyzing this new ruling from the perspective of an officer in the field, some of the best guidance can be derived from the legal standard for qualified immunity, which is, no liability unless the officer violates a constitutional or statutory right that is clearly established such that a reasonable officer would know the conduct violates the right. In a sense, the new decision does not leave the suspect with any less established right than before, to be free from coercive questioning. If you engage in questioning outside Miranda, knowing there is no plan to ever use the information against the suspect in any way, you now know that the questioning does not violate the Fifth Amendment. But a reasonable officer can be expected to know there is still a clearly established Fourteenth Amendment right to be free from coercive questioning that is found to "shock the conscience." With that in mind, the officer must proceed prudently.

And it appears that the Butts holding that following orders is no excuse is probably still accurate under the Fourteenth Amendment. As explained in Butts, "these officers had discretion over their interrogation methods. Their training did not require officers to interrogate "outside Miranda." They acted at their own election." 195 F.3d at 1050.

CALIFORNIA SUPREME COURT PROTECTS AGAINST USE OF SILENCE AS EVIDENCE OF CRIMINAL CULPABILITY

The same day as Chavez was announced, the California Supreme Court in People v. Cleland (May 27, 2003) 2003 DJDAR 5641, reinforced a criminal suspect's core Fifth Amendment protection against silence being used as evidence of guilt.

Police in the Cleland case arrested two suspects on suspicion they acted in concert to commit a murder, and placed them together in a police car equipped with taping equipment, supposedly in an effort to ascertain the topics they would talk about. After the suspects sat silently together except for a greeting, the officers took them back to the station and asked one of the suspects whether he knew the other person who had been placed in the car, and asked him to identify her. The suspect stated he had never seen her before. The police, of course, knew otherwise, in fact the two suspects were cousins and co-conspirators in the murder. Id. at 5642-43.

The murder convictions were reversed. Id. at 5648. The Court acknowledged that custody without interrogation does not give rise to Miranda warnings, and consequently, prosecutors could have used any statements the two suspects made to each other in the police car. The Court stated that even the suspects' silence could have been used as impeachment if they had testified at trial.

But the use of the silence in the prosecution's case-in-chief, as affirmative evidence of guilt, was held to violate the Fifth Amendment. The Court stated: "Although a defendant who volunteers an admission or statement before questioning or who testified on his or her own behalf at trial may be held to have waived the protection of" the Fifth Amendment, "the defendant who stands silent cannot. To allow affirmative evidence regarding such silence in the prosecution's case-in-chief, together with argument that such silence equates with guilt, impermissibly burdens the privilege against self-incrimination." Id. at 5644.

The opinion discusses precedent holding that the prosecution may not make either direct or indirect comment on a defendant's failure to testify, or suggest an inference of guilt from silence by directing the jury's attention to the failure to testify. The Court noted that this rule also applies to comments that certain evidence is undisputed when it is only the defendant who could have refuted it. Id. Citing federal cases holding that any use of postarrest, pre-Miranda silence as affirmative evidence of guilt violates the Fifth Amendment, even if the prosecutor has not drawn attention to the defendant's failure to testify at trial, the Court found it was not necessary to reach that issue in the case before it, because there the prosecution had laid great emphasis on the suspects' silence when placed together in the car.

The prosecutor had speculated the suspects were "afraid the police might be listening in...." The prosecutor then said, "that silence speaks volumes" because "there is no innocent explanation" for it. Id. Acknowledging that any comment on a criminal defendant's failure to testify violates the Fifth Amendment privilege against self-incrimination, the court found that the prosecutor's comment on the post-arrest silence in the police car was tantamount to a comment on the defendant's failure to testify, because the defendants were the only persons who could have given an "innocent explanation" of their silence in the police car. Id. at 5645.

The Cleland case gives an impression that the California Supreme Court remains somewhat inclined to protect the right of silence. The Cleland case involves the evidentiary use of post-arrest, pre-Miranda silence, and does not directly involve the effect of Miranda warnings. On the effect of Miranda, however, the Court commented that while silence before receiving Miranda warnings is admissible as impeachment, it would be fundamentally unfair to use silence after Miranda warnings even for impeachment, because the Miranda warning contains an implied assurance that silence will carry no penalty.

Another case involving interrogation outside Miranda, People v. Neal, docket no. S106440, was argued before the California Supreme Court on May 28, 2003. The Los Angeles Daily Journal reports that the justices were quite harsh on the prosecution, and expressed frustration over the practice of interrogation outside Miranda. We will be watching closely for the court's decision in the Neal case, which is expected before the end of this year, and will keep on top of this evolving controversy.