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inks may be helpful to him, that is not a valid assertion of Miranda rights. 357 Moreover, the rigid Edwards rule is not applicable to other aspects of the warnings. That is, if the suspect asserts his right to remain silent, the questioning must cease, but officers are not precluded from subsequently initiating a new round of interrogation, provided only that they again give the Miranda warnings. 358 Fifth, a properly warned suspect may waive his Miranda rights and submit to custodial interrogation. Miranda recognized that a suspect may voluntarily and knowingly give up his rights and re- VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00068 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1429 359 Miranda v. Arizona, 384 U.S. 436, 475 (1966). 360 North Carolina v. Butler, 441 U.S. 369 (1979). 361 441 U.S. at 373. But silence, ‘‘coupled with an understanding of his rights and a course of conduct indicating waiver,’’ may support a conclusion of waiver. Id. 362 Tague v. Louisiana, 444 U.S. 469 (1980). A knowing and intelligent waiver need not be predicated on complete disclosure by police of the intended line of questioning, hence an accused’s signed waiver following arrest for one crime is not invalidated by police having failed to inform him of intent to question him about another crime. Colorado v. Spring, 479 U.S. 564 (1987). 363 North Carolina v. Butler, 441 U.S. 369, 374–75 (1979) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). In Oregon v. Elstad, 470 U.S. 298 (1985), the Court held that a confession following a Miranda warning is not necessarily tainted by an earlier confession obtained without a warning, as long as the earlier confession had been voluntary. And see Moran v. Burbine, 475 U.S. 412 (1986) (signed waivers following Miranda warnings not vitiated by police having kept from suspect information that attorney had been retained for him by relative). 364 Davis v. United States, 512 U.S. 452 (1994) (suspect’s statement that ‘‘maybe I should talk to a lawyer,’’ uttered after Miranda waiver and after an hour and a half of questioning, did not constitute such a clear request for an attorney when, in response to a direct follow-up question, he said ‘‘no, I don’t want a lawyer’’). 365 Miranda v. Arizona, 384 U.S. 436, 479 (1966). 366 Estelle v. Smith, 451 U.S. 454 (1981). The Court has yet to consider the applicability of the ruling in a noncapital, nonbifurcated trial case. 367 Cf. Harrison v. United States, 392 U.S. 219 (1968) (after confessions obtained in violation of McNabb-Mallory were admitted against him, defendant took the stand to rebut them and made damaging admissions; after his first conviction was reversed, he was retried without the confessions, but the prosecutor introduced his rebuttal testimony from the first trial; Court reversed conviction because testimony was tainted by the admission of the confessions). But see Michigan v. Tucker, 417 U.S. 433 (1974). Confessions may be the poisonous fruit of other constitutional violaspond to questioning, but the Court cautioned that the prosecution bore a ‘‘heavy burden’’ to establish that a valid waiver had occurred. 359 While the waiver need not be express in order for it to be valid, 360 neither may a suspect’s silence or similar conduct constitute a waiver. 361 It must be shown that the suspect was competent to understand and appreciate the warning and to be able to waive his rights. 362 Essentially, resolution of the issue of waiver ‘‘must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’’’ 363 After a suspect has knowingly and voluntarily waived his Miranda rights, police officers may continue questioning until and unless the suspect clearly requests an attorney. 364 Sixth, the admissions of an unwarned or improperly warned suspect may not be used directly against him at trial, but the Court has permitted some use for other purposes, such as impeachment. A confession or other incriminating admissions obtained in violation of Miranda may not, of course, be introduced against him at trial for purposes of establishing guilt 365 or for determining the sentence, at least in bifurcated trials in capital cases, 366 and neither may the ‘‘fruits’’ of such a confession or admission be used. 367 VerDate Apr<15>2004 10:40 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00069 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1430 AMENDMENT 5—RIGHTS OF PERSONS tions, such as illegal searches or arrests. E.g., Brown v. Illinois, 422 U.S. 590 (1975); Dunaway v. New York, 442 U.S. 200 (1979); Taylor v. Alabama, 457 U.S. 687 (1982). 368 Under Walter v. United States, 347 U.S. 62 (1954), the defendant not only denied the offense of which he was accused (sale of drugs), but also asserted he had never dealt in drugs. The prosecution was permitted to impeach him concerning heroin seized illegally from his home two years before. The Court observed that the defendant could have denied the offense without making the ‘‘sweeping’’ assertions, as to which the government could impeach him. 369 401 U.S. 222 (1971). The defendant had denied only the commission of the offense. The Court observed that it was only ‘‘speculative’’ to think that impermissible police conduct would be encouraged by permitting such impeachment, a resort to deterrence analysis being contemporaneously used to ground the Fourth Amendment exclusionary rule, whereas the defendant’s right to testify was the obligation to testify truthfully and the prosecution could impeach him for committing perjury. See also United States v. Havens, 446 U.S. 620 (1980) (Fourth Amendment). 370 420 U.S. 714 (1975). By contrast, a defendant may not be impeached by evidence of his silence after police have warned him of his right to remain silent. Doyle v. Ohio, 426 U.S. 610 (1976). 371 E.g., Mincey v. Arizona, 437 U.S. 385 (1978); New Jersey v. Portash, 440 U.S. 450 (1979). 372 467 U.S. 649 (1984). 373 The Court’s opinion was joined by Chief Justice Burger and by Justices White, Blackmun, and Powell. Justice O’Connor would have ruled inadmissible the suspect’s response, but not the gun retrieved as a result of the response, and Justices Marshall, Brennan, and Stevens dissented. The Court, in opinions which bespeak a sense of necessity to narrowly construe Miranda, has broadened the permissible impeachment purposes for which unlawful confessions and admissions may be used. 368 Thus, in Harris v. New York, 369 the Court held that the prosecution could use statements, obtained in violation of Miranda, to impeach the defendant’s testimony if he voluntarily took the stand and denied commission of the offense. Subsequently, in Oregon v. Hass, 370 the Court permitted impeachment use of a statement made by the defendant after police had ignored his request for counsel following his Miranda warning. Such impeachment material, however, must still meet the standard of voluntariness associated with the pre-Miranda tests for the admission of confessions and statements. 371 The Court has created a ‘‘public safety’’ exception to the Miranda warning requirement, but has refused to create another exception for misdemeanors and lesser offenses. In New York v. Quarles, 372 the Court held admissible a recently apprehended suspect’s response in a public supermarket to the arresting officer’s demand to know the location of a gun that the officer had reason to believe the suspect had just discarded or hidden in the supermarket. The Court, in an opinion by Justice Rehnquist, 373 declined to place officers in the ‘‘untenable position’’ of having to make instant decisions as to whether to proceed with Miranda warnings and thereby increase the risk to themselves or to the public or whether to dispense with the warnings and run the risk that re- VerDate Apr<15>2004 15:27 Aug 16, 2004 Jkt 077500 PO 00000 Frm 00070 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1431 374 467 U.S. at 658–59. 375 Berkemer v. McCarty, 468 U.S. 420, 432 (1984). 376 468 U.S. at 434. 377 Culombe v. Connecticut, 367 U.S. 568, 603–06 (1961). 378 367 U.S. at 603. See Ashcraft v. Tennessee, 322 U.S. 143, 152–53 (1944); Lyons v. Oklahoma, 322 U.S. 596, 602–03 (1944); Watts v. Indiana, 338 U.S. 49, 50–52 (1949); Gallegos v. Nebraska, 342 U.S. 55, 60–62 (1951); Stein v. New York, 346 U.S. 156, 180–82 (1953); Payne v. Arkansas, 356 U.S. 560, 561–62 (1958). sulting evidence will be excluded at trial. While acknowledging that the exception itself will ‘‘lessen the desirable clarity of the rule,’’ the Court predicted that confusion would be slight: ‘‘[w]e think that police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect.’’ 374 No such compelling justification was offered for a Miranda exception for lesser offenses, however, and protecting the rule’s ‘‘simplicity and clarity’’ counseled against creating one. 375 ‘‘[A] person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which he was arrested.’’ 376 The Operation of the Exclusionary Rule Supreme Court Review.—The Court’s review of the question of admissibility of confessions or other incriminating statements is designed to prevent the foreclosure of the very question to be decided by it, the issue of voluntariness under the due process standard, the issue of the giving of the requisite warnings and the subsequent waiver, if there is one, under the Miranda rule. Recurring to Justice Frankfurter’s description of the inquiry as a ‘‘threephased process’’ in due process cases at least, 377 it can be seen that the Court’s self-imposed rules of restraint on review of lower-court factfinding greatly influenced the process. The finding of facts surrounding the issue of coercion—the length of detention, circumstances of interrogation, use of violence or of tricks and ruses, et cetera—is the proper function of the trial court which had the advantage of having the witnesses before it. ‘‘This means that all testimonial conflict is settled by the judgment of the state courts. Where they have made explicit findings of fact, those findings conclude us and form the basis of our review—with the one caveat, necessarily, that we are not to be bound by findings wholly lacking support in evidence.’’ 378 However, the conclusions of the lower courts as to how the accused reacted to the circumstances of his interrogation, and as to the legal significance of how he reacted, are subject to open review. VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00071 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1432 AMENDMENT 5—RIGHTS OF PERSONS 379 Culombe v. Connecticut, 367 U.S. 568, 605 (1961). See Watts v. Indiana, 338 U.S. 49, 51 (1949); Malinski v. New York, 324 U.S. 401, 404, 417 (1945). 380 ‘‘In cases in which there is a claim of denial of rights under the Federal Constitution this Court is not bound by the conclusions of lower courts, but will re-examine the evidentiary basis on which those conclusions are founded.’’ Niemotko v. Maryland, 340 U.S. 268, 271 (1951); Time, Inc. v. Pape, 401 U.S. 279, 284 (1971), and cases cited therein. 381 507 U.S. 680 (1993). 382 428 U.S. 465 (1976). See discussion of Stone v. Powell under the Fourth Amendment, infra. ‘‘No more restricted scope of review would suffice adequately to protect federal constitutional rights. For the mental state of involuntariness upon which the due process question turns can never be affirmatively established other than circumstantially— that is, by inference; and it cannot be competent to the trier of fact to preclude our review simply be declining to draw inferences which the historical facts compel. Great weight, of course, is to be accorded to the inferences which are drawn by the state courts. In a dubious case, it is appropriate . . . that the state court’s determination should control. But where, on the uncontested external happenings, coercive forces set in motion by state law enforcement officials are unmistakably in action; where these forces, under all the prevailing states of stress, are powerful enough to draw forth a confession; where, in fact, the confession does come forth and is claimed by the defendant to have been extorted from him; and where he has acted as a man would act who is subjected to such an extracting process—where this is all that appears in the record—a State judgment that the confession was voluntary cannot stand.’’ 379 Miranda, of course, does away with the judgments about the effect of lack of warnings, and the third phase, the legal determination of the interaction of the first two phases, is determined solely by two factual determinations: whether the warnings were given and if so whether there was a valid waiver. Presumably, supported determinations of these two facts by trial courts would preclude independent review by the Supreme Court. Yet, the Court has been clear that it may and will independently review the facts when the factfinding has such a substantial effect on constitutional rights. 380 In Withrow v. Williams, 381 the Court held that the rule of Stone v. Powell, 382 precluding federal habeas corpus review of a state prisoner’s claim that his conviction rests on evidence obtained through an unconstitutional search or seizure, does not extend to preclude federal habeas review of a state prisoner’s claim that his conviction rests on statements obtained in violation of the safeguards mandated by Miranda. VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00072 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1433 383 Jackson v. Denno, 378 U.S. 368, 410–23 (1964) (appendix to opinion of Justice Black concurring in part and dissenting in part). 384 346 U.S. 156, 170–79 (1953). Significant to the Court’s conclusion on this matter was the further conclusion of the majority that coerced confessions were inadmissible solely because of their unreliability; if their trustworthiness could be established the utilization of an involuntary confession violated no constitutional prohibition. This conception was contrary to earlier cases and was subsequently repudiated. See Jackson v. Denno, 378 U.S. 368, 383–87 (1964). 385 378 U.S. 368 (1964). On the sufficiency of state court determinations, see Swenson v. Stidham, 409 U.S. 224 (1972); La Vallee v. Della Rose, 410 U.S. 690 (1973). Procedure in the Trial Courts.—The Court has placed constitutional limitations upon the procedures followed by trial courts for determining the admissibility of confessions and other incriminating admissions. Three procedures were developed over time to deal with the question of admissibility when involuntariness was claimed. By the orthodox method, the trial judge heard all the evidence on voluntariness in a separate and preliminary hearing, and if he found the confession involuntary the jury never received it, while if he found it voluntary the jury received it with the right to consider its weight and credibility, which consideration included the circumstances of its making. By the New York method, the judge first reviewed the confession under a standard leading to its exclusion only if he found it not possible that ‘‘reasonable men could differ over the [factual] inferences to be drawn’’ from it; otherwise, the jury would receive the confession with instructions to first determine its voluntariness and to consider it if it were voluntary and to disregard it if it were not. By the Massachusetts method, the trial judge himself determined the voluntariness question and if he found the confession involuntary the jury never received it; if he found it to have been voluntarily made he permitted the jury to receive it with instructions that the jurors should make their own independent determination of voluntariness. 383 The New York method was upheld against constitutional attack in Stein v. New York, 384 but eleven years later a five-to-four decision in Jackson v. Denno, 385 found it inadequate to protect the due process rights of defendants. The procedure did not, the Court held, ensure a ‘‘reliable determination on the issue of voluntariness’’ and did not sufficiently guarantee that convictions would not be grounded on involuntary confessions. Since there was only a general jury verdict of guilty, it was impossible to determine whether the jury had first focused on the issue of voluntariness and then either had found the confession voluntary and considered it on the question of guilt or had found it involuntary, disregarded it, and reached a conclusion of guilt on wholly independent evidence. It was doubtful that a jury could appreciate the values VerDate Apr<15>2004 10:40 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00073 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1434 AMENDMENT 5—RIGHTS OF PERSONS 386 385 U.S. 538 (1967). 387 Jackson v. Denno, 378 U.S. 368 and n.8 (1964); Lego v. Twomey, 404 U.S. 477, 489–90 (1972) (rejecting contention that jury should be required to pass on voluntariness following judge’s determination). 388 Lego v. Twomey, 404 U.S. 477 (1972). 389 Colorado v. Connelly, 479 U.S. 157 (1986). 390 Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Justice Frankfurter dissenting). Due process is violated if a practice or rule ‘‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’’ Snyder v. Massachusetts, 291 U.S. 97, 105 (1934). 391 Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922). 392 Text and commentary on this chapter may be found in W. MCKECHNIE, MAGNA CARTA—A COMMENTARY ON THE GREAT CHARTER OF KING JOHN 375–95 (Glasgow, 2d rev. ed. 1914). The chapter became chapter 29 in the Third Reissue of Henry III in 1225. Id. at 504, and see 139–59. As expanded, it read: ‘‘No free man shall be taken or imprisoned or deprived of his freehold or his liberties or free customs, or outlawed or exiled, or in any manner destroyed, nor shall we come upon him or send against him, except by a legal judgment of his peers or by the law of the land.’’ See also J. HOLT, MAGNA CARTA 226–29 (1965). The 1225 reissue also served by the exclusion of involuntary confessions and put out of mind the content of the confession no matter what was determined with regard to its voluntariness. The rule was reiterated in Sims v. Georgia, 386 in which the Court voided a state practice permitting the judge to let the confession go to the jury for the ultimate decision on voluntariness, upon an initial determination merely that the prosecution had made out a prima facie case that the confession was voluntary. The Court has interposed no constitutional objection to utilization of either the orthodox or the Massachusetts method for determining admissibility. 387 It has held that the prosecution bears the burden of establishing voluntariness by a preponderance of the evidence, rejecting a contention that it should be determined only upon proof beyond a reasonable doubt, 388 or by clear and convincing evidence. 389 DUE PROCESS History and Scope ‘‘It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.’’ 390 The content of due process is ‘‘a historical product’’ 391 that traces all the way back to chapter 39 of Magna Carta, in which King John promised that ‘‘[n]o free man shall be taken or imprisoned or disseized or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.’’ 392 The phrase ‘‘due process of law’’ first appeared in a VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00074 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 AMENDMENT 5—RIGHTS OF PERSONS 1435 added to chapter 29 the language of chapter 40 of the original text: ‘‘To no one will we sell, to no one will we deny or delay right or justice.’’ This 1225 reissue became the standard text thereafter. 393 28 Edw. III, c. 3. See F. THOMPSON, MAGNA CARTA—ITS ROLE IN THE MAKING OF THE ENGLISH CONSTITUTION, 1300–1629, 86–97 (1948), recounting several statutory reconfirmations. Note that the limitation of ‘‘free man’’ had given way to the all-inclusive delineation. 394 W. MCKECHNIE, MAGNA CARTA—A COMMENTARY ON THE GREAT CHARTER OF KING JOHN (Glasgow, 2d rev. ed. 1914); J. HOLT, MAGNA CARTA (1965). 395 F. THOMPSON, MAGNA CARTA—ITS ROLE IN THE MAKING OF THE ENGLISH CONSTITUTION, 1300–1629 (1948). 396 SIR EDWARD COKE, INSTITUTES OF THE LAWS OF ENGLAND, Part II, 50–51 (1641). For a review of the influence of Magna Carta and Coke on the colonies and the new nation, see, e.g., A. HOWARD, THE ROAD FROM RUNNYMEDE—MAGNA CARTA AND CONSTITUTIONALISM IN AMERICA (1968). 397 The 1776 Constitution of Maryland, for example, in its declaration of rights, used the language of Magna Carta including the ‘‘law of the land’’ phrase in a separate article, 3 F. Thorpe, The Federal and State Constitutions, H. Doc. No. 357, 59th statutory rendition of this chapter in 1354. ‘‘No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.’’ 393 Though Magna Carta was in essence the result of a struggle over interest between the King and his barons, 394 this particular clause over time transcended any such limitation of scope, and throughout the fourteenth century parliamentary interpretation expanded far beyond the intention of any of its drafters. 395 The understanding which the founders of the American constitutional system, and those who wrote the due process clauses, brought to the subject they derived from Coke, who in his Second Institutes expounded the proposition that the term ‘‘by law of the land’’ was equivalent to ‘‘due process of law,’’ which he in turn defined as ‘‘by due process of the common law,’’ that is, ‘‘by the indictment or presentment of good and lawful men . . . or by writ original of the Common Law.’’ 396 The significance of both terms was procedural, but there was in Coke’s writings on chapter 29 a rudimentary concept of substantive restrictions, which did not develop in England because of parliamentary supremacy, but which was to flower in the United States. The term ‘‘law of the land’’ was early the preferred expression in colonial charters and declarations of rights, which gave way to the term ‘‘due process of law,’’ although some state constitutions continued to employ both terms. Whichever phraseology was used, the expression seems generally to have occurred in close association with precise safeguards of accused persons, but, as is true of the Fifth Amendment here under consideration, the provision also suggests some limitations on substance because of its association with the guarantee of just compensation upon the taking of private property for public use. 397 VerDate May<19>2004 12:55 May 20, 2004 Jkt 077500 PO 00000 Frm 00075 Fmt 8222 Sfmt 8222 C:\CONAN\CON030.SGM PRFM99 PsN: CON030 1436 AMENDMENT 5—RIGHTS OF PERSONS Congress, 2d Sess. 1688 (1909), whereas Virginia used the clause in a section of guarantees of procedural rights in criminal cases. 7 id. at 3813. New York in its constitution of 1821 was the first State to pick up ‘‘due process of law’’ from the United States Constitution. 5 id. at 2648. 398 Murray’s Lessee v. Hoboken Land and Improvement Co., 59 U.S. (18 How.) 272, 276 (1856). Webster had made the argument as counsel in Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). And see Chief Justice Shaw’s opinion in Jones v. Robbins, 74 Mass. (8 Gray) 329 (1857). 399 Sinking Fund Cases, 99 U.S. 700, 719 (1879). 400 Wong Wing v. United States, 163 U.S. 228, 238 (1896). 401 United States v. Ju Toy, 198 U.S. 253, 263 (1905); cf. Quon Quon Poy v. Johnson, 273 U.S. 352 (1927). 402 South Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966). 403 Wight v. Davidson, 181 U.S. 371, 384 (1901). 404 Lovato v. New Mexico, 242 U.S. 199, 201 (1916). 405 Public Utility Comm’rs v. Ynchausti & Co., 251 U.S. 401, 406 (1920). 406 Johnson v. Eisentrager, 339 U.S. 763 (1950); In re Yamashita, 327 U.S. 1 (1946). Justices Rutledge and Murphy in the latter case argued that the due process clause applies to every human being, including enemy belligerents. 407 Compare the remarks of Justices Chase and Iredell in Calder v. Bull, 3 U.S. (3 Dall.) 386, 388–89, 398–99 (1798). Scope of the Guaranty.—Standing by itself, the phrase ‘‘due process’’ would seem to refer solely and simply to procedure, to process in court, and therefore to be so limited that ‘‘due process of law’’ would be what the legislative branch enacted it to be. But that is not the interpretation which has been placed on the term. ‘‘It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law’ by its mere will.’’ 398 All persons within the territory of the United States are entitled to its protection, including corporations, 399 aliens, 400 and presumptively citizens seeking readmission to the United States, 401 but States as such are not so entitled. 402 It is effective in the District of Columbia 403 and in territories which are part of the United States, 404 but it does not apply of its own force to unincorporated territories. 405 Nor does it reach enemy a

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