Well, I understand that you are arguing that Miranda is not the proper standard, so I was trying to understand how your desired standard would affect other areas of law enforcement. Specifically, since you argued that ignorance of the action was coersive I reasoned that you must find wiretaps to be coersive. I’m confused now, though, by your statement that a confession over a wiretap could be non-coersive. Does the coersion disappear when a warrant is otained without the suspect’s awareness? Or is this simply a practical compromise to the standard that goverment should not take coersive action in investigating crimes?
The issue is not relevant to other areas of law enforcement. Much of law enforcement is coercive. That’s why they call it enforcement. It is therefore irrelevant as to whether a given action is considered coercion or not. It is only with regards to self-incrimination, for which the Constitution protects against coercion, that the distinction becomes relevant.
As I’ve said, wiretaps pass the Miranda standard. I don’t think I’ve expanded on Miranda - to the contrary, so I don’t see why you’d be asking this question of me. Why do you think wiretaps are acceptable under Miranda?
But FWIW, I would say that although the guy is coerced into having a wiretap, he is not coerced into confessing over the wiretap. He just might say nothing against himself, and has the perfect freedom to do this. This would not be considered coerced self-incrimination, any more than having a government agent infiltrating his organization would be.
I agree that you are not arguing to exapand Miranda–quite the contrary. It is because you argue to contract the Miranda protections that I asked about wiretaps. In particular, since you seemed to base your objection to the gathering of incriminating evidence around the idea that a suspect must be informed that information is being gathered I wondered how that played into such ideas as wiretaps. I still find some dissonance in the idea that listening secretly to someone speak over the phone is a non-coercive menas of gaining a confession if lack of informed consent is a deciding principle of coersion. It’s not a big deal, really, I was just curious.
Just in case anyone is interested, this Findlaw Article gives a little bit of information about how the oral arguments went before the U.S. Supreme Court.
Should be interesting, to say the least, to see what they decide on this one. The briefs were very well written on both sides, but in terms of pure legal analysis I think the government made the better case for arguing that there was no Miranda violation here because the case never went to trial and that this guy failed to demonstrate the necessary elements of a substantive due process claim. Not that that necessarily means much as an indication of how the case may ultimately be decided…
Speak not of “Miranda violations.” Miranda is the Fifth Amendment. The Fifth Amendment is Miranda. Never the twain shall part.
Actually, the interesting thing to me was this:
Yes, my client, a state actor, coerced the plaintiff into a confession. But that doesn’t violate the constitutional right against coerced confessions.
:rolleyes:
The defendant should still win on the Miranda warning, which is constitutional in origin but prophylactic in nature. But if state-sponsored torture isn’t a constitutional violation until the state seeks to admit the resulting confession in a criminal trial . . . well, the bastards have won.
Especially when part of the argument was that
“Well, we weren’t going to charge the dead man with a crime.” Oh, well, violate away then.
I think the argument the government is trying to make is that the constitutional right (at least in terms of the 5th amendment) is not a right to be free from being coerced into confessing, but, rather, a right to be free from having any such confession used against a person “in any criminal case.”
In essence the government argues that there are no SCOTUS cases which have ever held that there is a right not to be coerced into confessing, except in the context of having such a confession kept out of evidence in a criminal trial. The government relies heavily on the various immunity cases in which SCOTUS has held that people can be compelled (perhaps coerced) into giving incriminating statements, so long as they have been granted immunity to prevent use of those statements in a criminal prosecution. In a number of those cases SCOTUS has held that the concern of the 5th amendment privilege is to afford protection against being forced to give testimony leading to the infliction of penalties in criminal prosecutions. (Kastigar v. US, 406 U.S. 441 for example).
In that sense I’m inclined to agree that SCOTUS may well conclude that there has not been a 5th amendment/Miranda violation in this case. It may well be that the continued questioning of this man was very wrong. Unfortunately, that does not necessarily mean that the officer is not entitled to qualified immunity for his actions and that this suit will fail.
None of this, of course, gets into any of the complex notions of substantive due process.
So what you’re saying is that if a cop starts beating the shit out of you, plugs your testicles into an electrical socket, and plays Russian Roulette with a revolver held against your temple, all for the purpose of obtaining a confession, it doesn’t violate the Fifth Amendment?
Then, like I said, the bastards have won.
Sure, minty, as long as you don’t plan to use this confession against the person.
Oh shit, am I being a sycophant again? :rolleyes: + 
Gotta watch that.
Actually, what I’m saying is that that is what the government appears to be arguing in this case. That, and that SCOTUS has never before held a 5th Amendment violation to be complete with anything less than the attempt to use that confession in a criminal trial. Whether SCOTUS agrees or whether SCOTUS decides this is a good time to so hold, remains to be seen. I merely indicated my suspicion that SCOTUS will find no 5th amendment violation in this case.
Now, if the cop starts beating the shit out of you, plugs your testicles into an electrical socket, and plays Russian Roulette with a revolver held against your temple, all for the purpose of obtaining a confession, it may well constitute a substantive due process violation. Substantive Due Process has been held to include limitations on police brutality that shocks the conscience and physical abuse during interrogations. The question then becomes whether a competing state interest outweighs your protected interest not to have your testicles fried.
As I said above, the discussion in this thread to this point doesn’t really seem to address the potential substantive due process claim.
Okay, fair enough. Suffice it to say that I reject the govenment’s position re: actual coercion (as opposed to a simple failure to give a Miranda warning without any actual coercion), and hope that the Supreme Court will have the good sense to reject it as well.
minty, compare your hypothetical with a situation where the cop first provides you a Miranda warning and then starts beating the shit out of you, plugs your testicles into an electrical socket, and plays Russian Roulette with a revolver held against your temple, all for the purpose of obtaining a confession. ISTM that your right to collect money for this violation ought to be based on the torture you suffered, not on whether some words were spoken. What am I missing?
I’m certainly not trying to be confrontational here, but I’m not sure I understand what you mean about the government’s position re: actual coercion (as opposed to a simple failure to give a Miranda warning without any actual coercion). I think in both instances, whether there is actual coercion or none, the government is arguing that there is no Constitutional/Miranda violation until you attempt to use the statements against the person. Can you help me to understand what you mean?
FWIW I think this guy might have a much better chance of getting SCOTUS to find that he was denied substantive due process and that he is entitled to proceed with his 1983 action as a result. Appellate courts sometimes have a funny way of finding the “right” result, but not always through the most straightforward means.
You’re not missing anything, december. That’s precisely my position. The following explanation sof my position should hopefully also clarify for Realhoops.
Actual coercion for the purpose of obtaining a confession is a violation of the Fifth Amendment whether or not the state obtains a confession or seeks to admit a coerced confession against the speaker in a criminal proceeding.
By contrast, the Fifth Amendment requirement that Miranda warnings be given before custodial interrogation takes place is merely prophylactic in nature. It is intended to prevent actual coercion, and the failure to give such warnings is not coercion by itself. The consequence of a custodial interrogation being conducted without a Miranda warning is only that any statements thereby obtained are to be exluded in a subsequent criminal proceeding. Without actual coercion, a violation of Miranda does not occur until the state seeks to use the non-Mirandized statements against the speaker in such a proceeding.l
Gotcha. I understand now what your position is. Are you aware of any SCOTUS cases actually holding in accordance with your position (ie. on actual coercion automatically being a violation of the 5th amendment, for example), or is this what you would like to see SCOTUS hold in an ideal world? I don’t claim to be a SCOTUS expert or anything, so I don’t know that there aren’t any such cases; I am, however, unaware of them off the top of my head.
There are no cases directly on point–otherwise, they wouldn’t need to settle the law by taking this case. We should have a decision by around March, I believe.
Hey minty,
I know there aren’t any cases directly on point. I guess I meant “are there any cases that you think would support your position”? There seem to be a great many prior decisions which would support the position that the 5th amendment is not violated until you get to trial, coercion or not. I was just curious if there were any that would tend to support your opinion, as far as you know. I know the attorneys representing Martinez did not seem to present any very persuasive authority in their brief to SCOTUS.
Duncan v. Nelson, 466 F.2d 939 (7th Cir. 1972) cert. denied 409 U.S. 894 (physical violence not necessary in a civil action based on the extraction of an involuntary confession).
This is the really scary part. The government is trying to import the doctrine of “exigent circumstances” from the fourth amendment, into the fifth. You might call this the “Israeli exception.” “Normally, torture is prohibitted. But, hey, we thought this guy might be a terrorist and we needed to find out all about his evil plans in order to save lives!” Brrrrr.
Also, remember, the fifth amendment is chock-full of constitutional goodness. It’s got a lot more in it than just the prohibition against self-incrimination. An explicit “exigent circumstances” exception to the fifth amendment is the worst idea since Plessy v. Ferguson.
A brief description of the “exigent circumstances” doctrine.
This doctrine makes an unreasonable search “reasonable” whenever there are exigent circumstances. For example in the U.S., the police can’t generally break into your house and search it without a warrant. However, a policeman could break down your door and search your house if he smelled smoke or thought he heard a cry for help, etc., etc. While the search can’t be more intrusive than necessary to meet the exigent circumstance, anything the cop turns up in a search that falls within the criteria is fair game, even if it has nothing to do with the exigent circumstance. For example, if a cop smells smoke, breaks down your door and, while looking for the source of the smell, happens to observe child pornography on a table in your bedroom, it’s a fair cop.
The Duncan opinion is not an opinion of SCOTUS, of course, and the fact that cert. was denied does not necessarily imply endorsement of the holding in Duncan. To the extent Duncan seems to support the notion that an involuntary confession (coerced confession) is actionable standing alone, however, the decision is not premised on such coercion amounting to a violation of the Fifth Amendment, but rather a violation of due process considerations.
This is what I was suggesting earlier when I opined that SCOTUS might well find that Martinez’ substantive due process rights were violated, but likely will not find that the Fifth Amendment was violated.
At the very least it will be interesting to see how SCOTUS deals with all these issues.