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Sat Apr 20, 2013, 12:51 PM

Thurgood Marshall wrote a strong dissent in the Quarles case

It's worth keeping in mind that the Quarles case was a conservative decision and the liberals on the court dissented.
Justice Marshall specifically pointed to the decision as "limiting the protections of the Fifth Amendment ."

Some excerpts from Justice Marshall's dissent:

http://supreme.justia.com/cases/federal/us/467/649/case.html


III
Though unfortunate, the difficulty of administering the "public safety" exception is not the most profound flaw in the majority's decision. The majority has lost sight of the fact that Miranda v. Arizona and our earlier custodial interrogation cases all implemented a constitutional privilege against self-incrimination. The rules established in these cases were designed to protect criminal defendants against prosecutions based on coerced self-incriminating statements. The majority today turns its back on these constitutional considerations,
Page 467 U. S. 681
and invites the government to prosecute through the use of what necessarily are coerced statements.
A
The majority's error stems from a serious misunderstanding of Miranda v. Arizona and of the Fifth Amendment upon which that decision was based. The majority implies that Miranda consisted of no more than a judicial balancing act in which the benefits of "enlarged protection for the Fifth Amendment privilege" were weighed against "the cost to society in terms of fewer convictions of guilty suspects." Ante at 467 U. S. 656-657. Supposedly because the scales tipped in favor of the privilege against self-incrimination, the Miranda Court erected a prophylactic barrier around statements made during custodial interrogations. The majority now proposes to return to the scales of social utility to calculate whether Miranda's prophylactic rule remains cost-effective when threats to the public's safety are added to the balance. The results of the majority's "test" are announced with pseudoscientific precision:
"We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination."
Ante at 467 U. S. 657.
The majority misreads Miranda. Though the Miranda dissent prophesized dire consequences, see 384 U.S. at 384 U. S. 504, 384 U. S. 516-517 (Harlan, J., dissenting), the Miranda Court refused to allow such concerns to weaken the protections of the Constitution:
"A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government
Page 467 U. S. 682
when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged."


~~~


The Fifth Amendment prohibits compelled self-incrimination. As the Court has explained on numerous occasions, this prohibition is the mainstay of our adversarial system of criminal justice. Not only does it protect us against the inherent unreliability of compelled testimony, but it also ensures that criminal investigations will be conducted with integrity, and that the judiciary will avoid the taint of official lawlessness. See Murphy
Page 467 U. S. 688
v. Waterfront Comm'n, 378 U. S. 52, 378 U. S. 55 (1964). The policies underlying the Fifth Amendment's privilege against self-incrimination are not diminished simply because testimony is compelled to protect the public's safety. The majority should not be permitted to elude the Amendment's absolute prohibition simply by calculating special costs that arise when the public's safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties.

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Reply Thurgood Marshall wrote a strong dissent in the Quarles case (Original post)
suffragette Apr 2013 OP
ProSense Apr 2013 #1
suffragette Apr 2013 #3
DirkGently Apr 2013 #2
AnotherMcIntosh Apr 2013 #4
DirkGently Apr 2013 #6
suffragette Apr 2013 #5

Response to suffragette (Original post)

Sat Apr 20, 2013, 01:05 PM

1. Interesting.

Marshall's dissent appears to be on the point of incriminating statements being admissible. I think he makes a case for talking to suspects in the interest of public safety, but states that it can and already does happen.

of testimony." Michigan v. Tucker, 417 U. S. 433, 417 U. S. 440 (1974). Coerced confessions were simply inadmissible in criminal prosecutions. The "public safety" exception departs from this principle by expressly inviting police officers to coerce defendants into making incriminating statements, and then permitting prosecutors to introduce those statements at trial. Though the majority's opinion is cloaked in the beguiling language of utilitarianism, the Court has sanctioned sub silentio criminal prosecutions based on compelled self-incriminating statements. I find this result in direct conflict with the Fifth Amendment's dictate that "(n)o person . . . shall be compelled in any criminal case to be a witness against himself."

The irony of the majority's decision is that the public's safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct, but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial. Cf. Weatherford v. Bursey, 429 U. S. 545 (1977) (Sixth Amendment violated only if trial affected).

To a limited degree, the majority is correct that there is a cost associated with the Fifth Amendment's ban on introducing coerced self-incriminating statements at trial. Without a "public safety" exception, there would be occasions when a defendant incriminated himself by revealing a threat to the

Page 467 U. S. 687

public, and the State was unable to prosecute because the defendant retracted his statement after consulting with counsel and the police cannot find independent proof of guilt. Such occasions would not, however, be common. The prosecution does not always lose the use of incriminating information revealed in these situations. After consulting with counsel, a suspect may well volunteer to repeat his statement in hopes of gaining a favorable plea bargain or more lenient sentence. The majority thus overstates its case when it suggests that a police officer must necessarily choose between public safety and admissibility.

But however frequently or infrequently such cases arise, their regularity is irrelevant. The Fifth Amendment prohibits compelled self-incrimination. As the Court has explained on numerous occasions, this prohibition is the mainstay of our adversarial system of criminal justice. Not only does it protect us against the inherent unreliability of compelled testimony, but it also ensures that criminal investigations will be conducted with integrity, and that the judiciary will avoid the taint of official lawlessness. See Murphy


Page 467 U. S. 688

v. Waterfront Comm'n,

378 U. S. 52, 378 U. S. 55 (1964). The policies underlying the Fifth Amendment's privilege against self-incrimination are not diminished simply because testimony is compelled to protect the public's safety. The majority should not be permitted to elude the Amendment's absolute prohibition simply by calculating special costs that arise when the public's safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties.

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Response to ProSense (Reply #1)

Sat Apr 20, 2013, 01:17 PM

3. Agree with you that he makes that point

and just in the way you note, that suspects already could be questioned in the interest of public safety.

It's a powerful point and he was clear in believing this case diluted 5th amendment protections.

As you included:
The irony of the majority's decision is that the public's safety can be perfectly well protected without abridging the Fifth Amendment.

It's as clear and strong a statement as possible.

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Response to suffragette (Original post)

Sat Apr 20, 2013, 01:12 PM

2. Well, yes. Miranda is a procedural protection against coercion.


The reasoning behind excluding evidence when people aren't overtly reminded of their rights is that people in custody can easily be coerced and intimidated into saying basically anything. It's such a pervasive problem that the Court decided that without an affirmative requirement that suspects be told they don't have to speak, don't have to confess, and can call for an attorney, that we can't trust any evidence gathered without it.

Reading Quarles, it's bad jurisprudence based on difficult facts -- a common source of bad law. Someone was going to walk if evidence following the excited question, "Where's the gun?" was thrown out. It's vague as hell. There's a line about how the exception won't be hard for police to apply because, basically, they will just know.

What the administration has done goes further than the existing law though. They've decided terror suspects automatically fall under the exception. And who is a "terror suspect" is of course determined without any due process.

So now we've got a policy that says we don't need the core safeguard against coercion where someone is accused of terrorism. Which begs the question -- what is that we're planning to do that requires that an entire category of suspects of loosely defined crimes don't need to be protected from coercion?

It's a small thing in a way -- I sense triangulation and political calculation here. It's a way for this administration to reassure rightwingers that accused terrorists are being stripped of some of the rights of citizens, which they so dearly want to justify --without embracing the nebulous, no-holds-barred "detainee" status or military courts.

But it's still a radical departure from normal American civil protections. And questionable as to what it's really for. The only difference between reminding someone of their rights and then questioning them, and questioning them without reminding them, is that it lets authorities briefly pretend a suspect doesn't have the right not to respond, yet still use whatever is said in court. Unless you want to use actual coercion of course.

So which is it? Do we need to try to fool terror suspects into thinking they must answer "public safety" questions, or do we want to coerce them, lie about it, and use the coerced evidence in court?

Neither answer seems like good policy to me.


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Response to DirkGently (Reply #2)

Sat Apr 20, 2013, 01:28 PM

4. It is as much of a reminder for the police as well as those taken into custody.

 

Police and other governmental officials have been coercing false confession for centuries.

Some of us are repelled by that.

The Miranda rule is not just for those who have been arrested.

The police verbalization of the rules of law identified in the Miranda rule are like a catechism. They are or should be also a reminder to the police of the laws that the police should remember and respect.

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Response to AnotherMcIntosh (Reply #4)

Sat Apr 20, 2013, 01:57 PM

6. I agree. That's part of what's "between the lines" in Miranda.

It's supposed to keep law enforcement interrogations honest. You can't as easily tell someone they can have a lawyer and that they don't have to confess, and then tell them they're never leaving the room alive until they confess, especially when you know you are going to be subject to examination under oath on exactly that point.

So again, why would we suspend that for an entire class of suspects? They still have the same rights. The Quarles case reads like an on-the-spot, heat-of-the-moment exhortation -- "Where's the gun?" The point seemed to be that the officer didn't have time to recite the subject's rights, or wasn't really conducting an interrogation looking for incriminating evidence.

It's all fine to say that we're worried about terrorists with other plots or bombs going on that constitute an emergency. But deciding ahead of time to subject a range of suspects to a certain amount of interrogation without reminding everyone in the room they can't be coerced into answering doesn't make any sense. Is that we DO intend to coerce them? It certainly isn't a matter of on-the-spot decision making when you're talking about a suspect lying in a hospital bed.

A calculated decision to suspend Miranda ahead of time doesn't make any sense at all. It's either a symbolic gesture toward "getting tough on terrorists" or cover for an intention to coerce. Neither seem justifiable.

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Response to DirkGently (Reply #2)

Sat Apr 20, 2013, 01:31 PM

5. Neither answer seems like good policy to me either

And that speaks to the erosion of basic rights and due process that continues.

It seems to me the direction we are taking is the direction Marshall was arguing against and I am uncomfortable with that.


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