[Senate Hearing 106-237]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 106-237


 
                THE CLINTON JUSTICE DEPARTMENT'S REFUSAL
              TO ENFORCE THE LAW ON VOLUNTARY CONFESSIONS

=======================================================================

                                HEARING

                               before the

               SUBCOMMITTEE ON CRIMINAL JUSTICE OVERSIGHT

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   on

     EXAMINING THE DEPARTMENT OF JUSTICE'S DECISION REGARDING THE 
   ENFORCEMENT OF FEDERAL STATUTE 18 U.S.C. 3501, WHICH GOVERNS THE 
ADMISSIBILITY OF VOLUNTARY CONFESSIONS IN FEDERAL COURT, AND THE IMPACT 
                         ON THE MIRANDA RIGHTS

                               __________

                              MAY 13, 1999

                               __________

                          Serial No. J-106-27

                               __________

         Printed for the use of the Committee on the Judiciary


                                


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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director
                 Bruce A. Cohen, Minority Chief Counsel

                                 ______

               Subcommittee on Criminal Justice Oversight

                STROM THURMOND, South Carolina, Chairman

MIKE DeWINE, Ohio                    CHARLES E. SCHUMER, New York
JOHN ASHCROFT, Missouri              JOSEPH R. BIDEN, Jr., Delaware
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               PATRICK J. LEAHY, Vermont

                     Garry Malphrus, Chief Counsel

                    Glen Shor, Legislative Assistant

                                  (ii)



                            C O N T E N T S

                              ----------                              

                     STATEMENT OF COMMITTEE MEMBER

                                                                   Page

Thurmond, Hon. Strom, U.S. Senator from the State of South 
  Carolina.......................................................     1

                    CHRONOLOGICAL LIST OF WITNESSES

Panel consisting of Stephen J. Markman, former U.S. attorney for 
  the Eastern District of Michigan, and former Asssistant 
  Attorney General for the Office of Legal Policy, Lansing, MI; 
  Richard M. Romley, Maricopa County attorney, Phoenix, AZ; 
  Gilbert G. Gallegos, president, grand lodge, Fraternal Order of 
  Police, Washington, DC; Daniel C. Richman, professor of law, 
  Fordham University School of Law, and former chief appellate 
  attorney for the Southern District of New York, New York, NY; 
  George Thomas, professor of law, Rutgers University School of 
  Law, Newark, NJ; and Paul G. Cassell, professor of law, 
  University of Utah College of Law, and former Associate Deputy 
  Attorney General, Salt Lake City, UT...........................     5

                ALPHABETICAL LIST AND MATERIAL SUBMITTED

Cassell, Paul G.:
    Testimony....................................................    34
    Prepared statement...........................................    36
Gallegos, Gilbert G.:
    Testimony....................................................    19
    Prepared statement...........................................    21
Markman, Stephen J.:
    Testimony....................................................     5
    Prepared statement...........................................     7
        Article: National Review, ``True Confessions--Miranda's 
          Hidden Costs,'' by Paul Cassell and Stephen J. Markman, 
          dated Dec. 25, 1995....................................    13
Richman, Daniel C.:
    Testimony....................................................    26
    Prepared statement...........................................    28
Romley, Richard M.:
    Testimony....................................................    17
    Prepared statement...........................................    18
Thomas, George:
    Testimony....................................................    29
    Prepared statement...........................................    31
Thurmond, Hon. Strom: Submitted the following materials:
    Letters from:
        National Association of Police Organizations, Inc. to 
          Senators Thurmond and Schumer, dated May 11, 1999......    95
        Edwin Meese III to Senator Thurmond, dated May 12, 1999..    96
        Dick Thornburgh to Senator Thurmond, dated Oct. 7, 1999..    97
        William P. Barr to Senator Thurmond, dated July 22, 1999.    99
        Attorney General Janet Reno to Hon. Albert Gore, Jr., 
          dated Sept. 10, 1997...................................   100
        U.S. Department of Justice Criminal Division, John C. 
          Keeney, Acting Assistant Attorney General, to All 
          United States Attorneys and All Criminal Division 
          Section Chiefs, dated Nov. 6, 1999.....................   100
        U.S. Senate, Committee on the Judiciary to Janet Reno, 
          dated Mar. 4, 1999.....................................   101
        U.S. Department of Justice, Office of Legislative 
          Affairs, to Senator Thurmond, dated Apr. 15, 1999......   102
        U.S. Senate, Committee on the Judiciary to James K. 
          Robinson, Assistant Attorney General, Criminal 
          Division, dated May 6, 1999............................   103
    Title 18 U.S.C. 3501.........................................   105
    Chart: ``What the Courts Have Said About the Voluntary 
      Confessions Law 18 U.S.C. Sec. 3501''......................   106

                                APPENDIX
                         Questions and Answers

Responses to questions from Senator Thurmond:
    Stephen J. Markman...........................................   109
    Richard M. Romley............................................   109
    Gilbert G. Gallegos..........................................   110
    Daniel C. Richman............................................   113
    George Thomas................................................   115
    Paul G. Cassell..............................................   116
    James K. Robinson............................................   117

                 Additional Submissions for the Record

Brief: United States Court of Appeals for the Fourth Circuit, No. 
  97-4017, United States v. Robert H. Sullivan...................   127
Brief: United States Court of Appeals for the Fourth Circuit, No. 
  97-4750, United States v. Charles Thomas Dickerson.............   129
Prepared statement of James K. Robinson, Assistant Attorney 
  General, Department of Justice, Criminal Division..............   139
Letters from:
    U.S. Senate, Committee on the Judiciary to Hon. Janet Reno, 
      dated Aug. 28, 1997........................................   141
    U.S. Department of Justice, Office of Legislative Affairs, 
      Andrew Fois, Assistant Attorney General, to Senator 
      Thurmond, dated Sept. 11, 1997.............................   145
    Criminal Justice Foundation, Charles L. Hobson, to Senator 
      Thurmond, dated May 10, 1999...............................   146
    Federal Law Enforcement Officers Association, Richard J. 
      Gallo, to Senator Thurmond, dated May 28, 1999.............   146
    Major Cities Chiefs, Ruben B. Ortega, to Senators Thurmond 
      and Schumer, dated May 18, 1999............................   147
Excerpt from a bill, S. 899, to reduce crime and protect the 
  public in the 21st Century by strengthening Federal assistance 
  to State and local law enforcement, combating illegal drugs and 
  preventing drug use, attacking the criminal use of guns, 
  promoting accountability and rehabilitation of juvenile 
  criminals, protecting the rights of victims in the criminal 
  justice system, and improving criminal justice rules and 
  procedures, and for other purposes.............................   148
Excerpt from the Congressional Record, dated June 15, 1999.......   155
Excerpt from the Congressional Record, dated Aug. 11, 1969.......   157
Articles:
    The Augusta Chronicle, ``Miranda, finally,'' dated Feb. 14, 
      1999.......................................................   160
    The Associated Press, ``GOP slams White House over Miranda 
      rights law,'' dated May 14, 1999...........................   161



    THE CLINTON JUSTICE DEPARTMENT'S REFUSAL TO ENFORCE THE LAW ON 
                         VOLUNTARY CONFESSIONS

                              ----------                              


                         THURSDAY, MAY 13, 1999

                               U.S. Senate,
        Subcommittee on Criminal Justice Oversight,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 2:02 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Strom 
Thurmond (chairman of the subcommittee) presiding.

 OPENING STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM 
                  THE STATE OF SOUTH CAROLINA

    Also present: Senators Sessions, and Kyl [ex officio.]
    Senator Thurmond. The subcommittee will come to order. I am 
pleased to hold this oversight hearing today on the Department 
of Justice. We will review a Federal statute, 18 U.S.C. 3501, 
that the Congress passed to govern the admissibility of 
voluntary confessions in Federal court. Unfortunately, the 
Clinton administration has refused to use this tool to help 
Federal prosecutors in their work to fight crime.
    In 1966, the Supreme Court established in Miranda v. 
Arizona a codelike set of rules requiring that a defendant must 
be read certain warnings before his confession of a crime can 
be used against him in court. The strict rules it established 
were not mandated by the Constitution, as even the Court itself 
acknowledged, and we will never know how many crimes have gone 
unsolved or unpunished because of it.
    In response, the Judiciary Committee held an extensive 
series of hearings on this issue as part of broader criminal 
law reform. A bipartisan Congress, with my participation and 
that of many others, passed a statute in 1968 that provides, 
``In any criminal prosecution brought by the United States * * 
*, a confession * * * shall be admissible in evidence if it is 
voluntarily given.'' One factor to consider in whether a 
confession is voluntary is whether the defendant received the 
Miranda warnings.
    The Miranda Court expressly invited the Congress and the 
States to develop a legislative solution in this area. I have 
with me today the hundreds of pages of hearings and committee 
reports that detail this committee's extensive consideration of 
this issue in response to that invitation.
    During the Clinton administration, this committee has 
repeatedly encouraged the Justice Department to enforce the 
statute. During an oversight hearing in 1997, Attorney General 
Reno indicated to the committee that the Department would 
enforce it in an appropriate case, as did Deputy Attorney 
General Holder during his nomination hearing the same year.
    However, when such a case clearly arose in United States v. 
Dickerson, the administration refused to enforce it. In that 
case, Charles Dickerson was suspected of committing a series of 
armed bank robberies in Virginia and Maryland. During 
questioning, he voluntarily confessed his crimes to the 
authorities and implicated another armed bank robber, but the 
Miranda warnings were not read to him beforehand. The U.S. 
attorney's office in Alexandria urged the trial court to admit 
the confession under section 3501, but the Justice Department 
refused to permit the U.S. attorney to raise it on appeal.
    Thus, Paul Cassell, who we are pleased to have with us 
today, made the argument instead, and the fourth circuit ruled 
solidly in favor of section 3501. It is due to the efforts of 
third parties outside the Justice Department that a key 
confession will be used, and may be the reason that a serial 
bank robber is brought to justice.
    The media reaction to the Dickerson case has been negative, 
indicating that defendants will no longer receive Miranda 
warnings if the decision stands. This is simply not true. As 
the fourth circuit noted, section 3501 encourages the police to 
give Miranda warnings because the warnings help establish that 
a confession is voluntary. Section 3501 will not stop Miranda 
warnings from being given. What it will do is stop criminals 
from being released on legal technicalities.
    The fourth circuit strongly criticized the Justice 
Department for refusing to argue the statute, saying that it 
has impeded the law's enforcement and has overruled the efforts 
of career Federal prosecutors to use it. Indeed, without the 
involvement of third parties in cases like Dickerson, the 
Department's position would have prevented the issue from ever 
being considered by the courts.
    The executive branch has a duty under article II, section 
3, of the Constitution to ``take care that the laws be 
faithfully executed.'' Section 3501 is a law like any other. In 
Davis v. United States, Justice Scalia questioned whether the 
refusal to invoke the statute abrogated this duty. As he also 
stated, the United States' repeated refusal to invoke 3501 
``may have produced--during an era of intense national concern 
about the problem of runaway crime--the acquittal and 
nonprosecution of many dangerous felons, enabling them to 
continue their depredations upon our citizens. There is no 
excuse for this.''
    I am equally troubled. I cannot understand why the Clinton 
administration refuses to use this law against criminals and 
even prohibits its career Federal prosecutors from doing so. 
America does not need its Justice Department making arguments 
on behalf of criminals.
    The statute has been upheld by all courts that have 
directly considered it. Even the Supreme Court has long 
characterized the Miranda warnings as ``prophylactic,'' as 
opposed to constitutional requirements. It has referred to 
section 3501 as, ``the statute governing the admissibility of 
confessions in Federal prosecutions.''
    The Justice Department will not say what position it will 
take if the Dickerson case is considered by the Supreme Court. 
This is one of the questions I was eager to ask the Justice 
Department today. Unfortunately, they refused my invitation to 
testify. Not only will the Justice Department not defend the 
law in court, it will not even discuss the matter before this 
subcommittee.
    I recognize the Department's reluctance to discuss 
specifics about pending cases, but this is no excuse for its 
failure to discuss its general treatment of the law governing 
voluntary confessions. Even the dissent in Dickerson stated 
that the Congress could invoke its oversight authority and 
investigate why the law is being ignored.
    It is my sincere hope, as the Dickerson court stated, that 
``no longer will criminals who have voluntarily confessed their 
crimes be released on mere technicalities.'' By supporting 
section 3501, the Justice Department can go a long way toward 
making this promise a reality.
    I look forward to the testimony of our witnesses as we 
review the Clinton Justice Department's refusal to enforce the 
law on voluntary confessions.
    You want to introduce a witness now, don't you?
    Senator Kyl. Yes, please.
    Senator Thurmond. Go right ahead.
    Senator Kyl. Thank you very much, Mr. Chairman. Thank you 
for holding this hearing. Though not a member of this 
subcommittee, I am delighted to be here, even if for a few 
minutes to express my support for the inquiry which you are 
making today.
    I would like to acknowledge two members of this 
distinguished panel with whom I have worked extensively. You 
mentioned one, Dr. Paul Cassell, from the University of Utah, 
who has not only been active in this and a variety of other 
similar matters in court, but has also been enormously 
supportive of our efforts to write, defend, and promote a 
constitutional amendment to provide rights to victims of crime.
    I am happy to say, Mr. Chairman, that the Majority Leader 
has indicated his support for providing time on the floor for 
consideration of our constitutional amendment this summer, as 
soon as we can get it through the full Judiciary Committee, and 
I appreciate very much Dr. Cassell's help in this regard.
    But today it is my pleasure to especially introduce my 
county attorney, Rick Romley, who is currently serving in his 
third term as Maricopa County Attorney. Our county, by the way, 
Mr. Chairman, is the sixth largest in the country, and it is 
also the fastest growing county in the United States. So he has 
got a real challenge ahead of him.
    He has been a prosecutor for almost 20 years, and he 
currently oversees one of the largest prosecuting agencies in 
the country. His staff is about 800 people, including 300 
attorneys, over 50 investigators, and incidentally nearly 50 
victim witness advocates. He has earned a reputation as a 
leader in criminal justice issues, and he has championed many 
prosecution and reform policies.
    For example, he played a leading role in rewriting 
Arizona's criminal code, which resulted in truth in sentencing 
statutes that require convicted criminals to serve their full 
time. While serving on the Arizona Victims Constitutional 
Rights Steering Committee, he worked to make Arizona one of the 
first States in the Nation to pass a constitutional amendment 
that guarantees that victims are afforded certain rights during 
the criminal justice process. He was also a prominent figure in 
Arizona's juvenile justice reform.
    In fiscal year 1997-1998, the Maricopa County Attorney's 
Office handled over 45,000 felony matters. County Attorney Rick 
Romley has testified before this committee on numerous 
occasions, Mr. Chairman, but I think you will agree that he is 
very well-qualified to testify on the topic of voluntary 
confessions. So I join you in welcoming him, as well as the 
other members of your panel to this discussion today.
    Thank you, Mr. Chairman, for affording me the opportunity 
to introduce my county attorney.
    Senator Thurmond. I will now introduce our panel. The first 
witness is Stephen Markman, who served in the Bush 
administration as U.S. attorney in Michigan, and in the Reagan 
administration as Assistant Attorney General in charge of the 
Office of Legal Policy. In the latter position, he wrote a 
definitive report on the law of pre-trial interrogation for the 
Justice Department. Prior to that, he served on the staff of 
the Senate Judiciary Committee. Currently, he is a judge on the 
court of appeals in Michigan. We welcome you here.
    Our second witness is Richard Romley, who is currently 
serving his third term as the Maricopa County Attorney in 
Phoenix, AZ. Mr. Romley holds both a bachelor's and law degree 
from Arizona State University, and he served in the U.S. Marine 
Corps. We welcome you.
    Our third witness is Gilbert Gallegos, national president 
of the Fraternal Order of Police, the largest law enforcement 
organization in the United States. Mr. Gallegos has a degree in 
criminology from the University of Albuquerque and is a 
graduate of the FBI National Academy. Prior to becoming FOP 
national president, Mr. Gallegos served for 25 years in the 
Albuquerque Police Department, retiring with the rank of Deputy 
Chief of Police. We are glad to have you.
    The fourth witness is Prof. Daniel Richman, of the Fordham 
University School of Law. A graduate of Harvard University and 
Yale Law School, Professor Richman clerked for Justice Thurgood 
Marshall on the Supreme Court. He also spent 7 years as an 
assistant U.S. attorney and special assistant U.S. attorney for 
the Southern District of New York, including service as chief 
appellate attorney. We are glad to have you.
    Our fifth witness is Prof. George Thomas, of Rutgers 
University School of Law. A graduate of the University of Iowa 
College of Law, Professor Thomas practiced law in Tennessee and 
taught criminal justice at the University of Tennessee before 
assuming his current position. We are glad to have you.
    Our sixth and final witness is Prof. Paul Cassell, of the 
University of Utah School of Law. He served as a Federal 
prosecutor and as an Associate Deputy Attorney General during 
the Reagan administration. He clerked for then Judge Antonin 
Scalia on the District of Columbia Circuit Court of Appeals and 
for Chief Justice Warren Burger on the Supreme Court. Professor 
Cassell argued the Dickerson case before the fourth circuit.
    I ask that each of you please limit your opening statements 
to 5 minutes. All of your written testimony will be placed in 
the record, without objection. We will start with Judge Markman 
and proceed down the line.

 PANEL CONSISTING OF STEPHEN J. MARKMAN, FORMER U.S. ATTORNEY 
  FOR THE EASTERN DISTRICT OF MICHIGAN, AND FORMER ASSISTANT 
 ATTORNEY GENERAL FOR THE OFFICE OF LEGAL POLICY, LANSING, MI; 
   RICHARD M. ROMLEY, MARICOPA COUNTY ATTORNEY, PHOENIX, AZ; 
GILBERT G. GALLEGOS, PRESIDENT, GRAND LODGE, FRATERNAL ORDER OF 
 POLICE, WASHINGTON, DC; DANIEL C. RICHMAN, PROFESSOR OF LAW, 
 FORDHAM UNIVERSITY SCHOOL OF LAW, AND FORMER CHIEF APPELLATE 
 ATTORNEY FOR THE SOUTHERN DISTRICT OF NEW YORK, NEW YORK, NY; 
 GEORGE THOMAS, PROFESSOR OF LAW, RUTGERS UNIVERSITY SCHOOL OF 
    LAW, NEWARK, NJ; AND PAUL G. CASSELL, PROFESSOR OF LAW, 
UNIVERSITY OF UTAH COLLEGE OF LAW, AND FORMER ASSOCIATE DEPUTY 
              ATTORNEY GENERAL, SALT LAKE CITY, UT

                STATEMENT OF STEPHEN J. MARKMAN

    Judge Markman. Chairman Thurmond, Senator Kyl, thank you 
very much for the invitation to testify on the subject of 
section 3501 and Miranda. As a staff member of this committee 
for 7 years, it is a particular honor for me to be back here 
this afternoon.
    As former Assistant Attorney General of the United States 
from 1985 to 1989, I have been asked specifically to set forth 
the perspectives of the Reagan administration Department of 
Justice toward section 3501. It is not my attention here to 
compare or contrast these perspectives with those of any other 
administration.
    Section 3501, of course, was enacted as part of the Omnibus 
Crime Control Act of 1968 and represents the congressional 
response to the Supreme Court's decision in Miranda v. Arizona. 
Essentially, 3501 would restore the pre-Miranda voluntariness 
standard to confessions and other statements elicited from 
suspects during custodial interrogation.
    As Assistant Attorney General, I was requested by Attorney 
General Edwin Meese in 1985 to analyze the Miranda decision and 
the law of pretrial interrogation as part of a larger analysis 
of the changes in criminal procedure that had resulted from a 
series of U.S. Supreme Court decisions over the previous 2 
decades. His request set in motion a series of actions on the 
part of the Justice Department that I would like to summarize.
    In February 1986, the Office of Legal Policy issued a 
report to the Attorney General on the law of pretrial 
interrogation. The report is contained as Attachment B of my 
testimony. The report was a comprehensive review of the 
development of the law on pretrial interrogation from its 
medieval origins to the Supreme Court's decision in Miranda. 
After considerable analysis, the report concluded that the 
Miranda decision had, ``had a major adverse effect on the 
willingness of suspects to provide information to the police.''
    Various studies were cited which concluded that Miranda had 
substantially reduced the availability of confession evidence 
to the criminal justice system, reducing in half, for example, 
confessions arising out of custodial interrogations in 
Pittsburgh, according to one study. In our judgment, these 
studies amply bore out the concern expressed by Justice White 
in his dissent in Miranda that, ``In some unknown number of 
cases, the Court's rule will return a killer, a rapist or other 
criminal to the streets and to the environment which produced 
him, to repeat his crime whenever it pleases him. As a 
consequence, there will not be a gain, but a loss in human 
dignity.''
    In addition, our report concluded that the continued 
application of Miranda violated the constitutional separation 
of powers by promulgating a code of procedure for 
interrogations that was more properly the responsibility of the 
executive and the legislative branches, that it violates the 
constitutional principle of federalism by enforcing a 
nonconstitutional rule of procedure against State courts, that 
it impaired the effectiveness of the criminal justice system by 
requiring the expenditure of limited resources in developing 
cases that could easily have been made prior to Miranda and in 
forcing questionable plea bargains upon the prosecutor, and 
that it undermined public confidence in the law by freeing 
known criminals on the basis of what were perceived by many as 
technicalities and prolonging the anguish of criminal victims 
through years of additional criminal litigation.
    Our report further concluded that section 3501 represented 
a constitutional response by the Congress to the Miranda 
decision, in light both of the Court's own assertions that its 
warnings were not mandated by the fifth amendment and by its 
express invitation to the legislative branches of the Federal 
and State governments to develop effective alternatives. As 
part of an overall reform strategy, the report recommended that 
3501 be affirmatively invoked in an effort to overrule or 
abrogate Miranda.
    Following issuance of the report, the Department convened a 
special task force in an effort to implement the report's 
recommendations. Professor Cassell, as well as myself, were 
among the members of that task force. In its report in May 
1987, the task force reaffirmed the strategy of invoking 3501 
in an effort to overrule Miranda, while at the same time 
issuing draft guidelines establishing new custodial 
interrogation procedures in place of those required by Miranda. 
Although the task force viewed section 3501 as a constitutional 
enactment with or without the guidelines, such guidelines were 
designed to demonstrate the efficacy of alternative custodial 
interrogation procedures.
    Members of the committee, there is no more significant 
criminal justice issue that this committee could address than 
the legacy of Miranda v. Arizona. While the impact of Miranda 
is a largely hidden one, there is no criminal procedural 
innovation in modern times that has been more costly. No legacy 
of the criminal procedure revolution of the 1960's and 1970's 
has been more devastating to the first civil right of all 
individuals--the right to be protected from domestic predators.
    I would respectfully urge this subcommittee to reaffirm the 
earlier words of the Judiciary Committee more than 3 decades 
ago when it enacted section 3501, ``The traditional right of 
the people to have their prosecutors place in evidence before 
juries the voluntary confessions and incriminating statements 
made by defendants simply must be restored.''
    Thank you very much for the opportunity to be here this 
afternoon.
    Senator Thurmond. Thank you, Judge Markman.
    [The prepared statement of Judge Markman follows:]

                Prepared Statement of Stephen J. Markman

    Members of the Senate Judiciary Committee, thank you very much for 
the invitation to testify on the subject of Sec. 3501 of Title 18 of 
the United States Code. As former Assistant Attorney General of the 
United States from 1985-89, I have been asked to set forth the 
perspectives of the Reagan Administration Justice Department toward 18 
USC Sec. 3501. It is not my intention here to compare or contrast these 
perspectives with those of any other Administration.
    Sec. 3501 represents the Congressional response to the Supreme 
Court's decision in Miranda v Arizona, 384 US 436 (1966). [Attachment 
A.] In Miranda, the Court invited such a legislative response when it 
stated,

          It is impossible for us to foresee the potential alternatives 
        for protecting the privilege for protecting the privilege which 
        might be devised by the Congress or the States in the exercise 
        of their creative rule-making capacities. Therefore, we cannot 
        say that the Constitution necessarily requires adherence to any 
        particular solution for the inherent compulsions of the 
        interrogation process as it is presently conducted. Our 
        decision in no way creates a constitutional straitjacket which 
        will handicap sound efforts at reform, nor is it intended to 
        have this effect. We encourage Congress and the States to 
        continue their laudable search for increasingly effective ways 
        of protecting the rights of the individual while promoting 
        efficient enforcement of our criminal laws. However, unless we 
        are shown other procedures which are at least as effective in 
        apprising accused persons of their right of silence and in 
        assuring a continuous opportunity to exercise it, the following 
        safeguards must be observed. [466 US at 467]

    Sec. 3501 was enacted as part of the Omnibus Crime Control and Safe 
Streets Act of 1968. The first sentence of Sec. 3501(a) overrules 
Miranda and restores the voluntariness standard for the admission of 
confessions in federal prosecutions. The remainder of this subsection 
provides for an initial determination concerning the voluntariness of a 
confession by the judge outside the presence of the jury. Sec. 3501(b) 
lists various factors, including the proffering of warnings, which are 
to be considered by the trial court in applying the voluntariness 
standard. The status of these factors under this subsection is the same 
as their status under pre-Miranda voluntariness law. As the last 
sentence of this subsection indicates, these are not preconditions to 
the admission of a confession, but simply evidence relevant to the 
determination of a confession's voluntariness. Sec. 3501(d) provides 
that the statute does not bar the admission of any voluntarily given 
confession that is outside the custodial interrogation process, while 
Sec. 3501(e) defines ``confession'' to include any self-incriminating 
statement.\1\
---------------------------------------------------------------------------
    \1\ Sec. 3501(c) is not directly related to the Miranda decision 
but responds to the Supreme Court's decisions in McNabb v United 
States, 318 US 332 (1943) and Mallory v United States, 354 US 449 
(1957), providing that delays of up to six hours in the production of 
an arrested person before a magistrate do not, by themselves, require 
the exclusion of a confession obtained in that period.
---------------------------------------------------------------------------
    As Assistant Attorney General for Legal Policy, I was requested by 
Attorney General Edwin Meese in 1985 to analyze the Miranda decision 
and the law of pretrial interrogation as part of a larger series of 
analyses of changes in criminal procedure that had been effected by the 
U.S. Supreme Court in decisions over the previous two decades.\2\ As a 
former legal academician and prosecutor, Attorney General Meese had 
long expressed concerns about the impact of the Miranda decision. His 
request set in motion a series of subsequent actions on the part of the 
Justice Department during his tenure as Attorney General that I have 
been asked to summarize for this panel.
---------------------------------------------------------------------------
    \2\ These analyses were widely disseminated by the Department of 
Justice at the time of their publication and are reprinted in their 
entirety in the University of Michigan Journal of Law Reform in the 
Spring and Summer 1989 volume.
---------------------------------------------------------------------------
                     report to the attorney general
    In February of 1986, the Office of Legal Policy (now known as the 
Office of Policy Development) of the Justice Department issued its 
Report to the Attorney General on The Law of Pre-Trial Interrogation. 
[Attachment B.] According to the Attorney General,

          [The Report] comprehensively reviews the development of the 
        law of pretrial interrogation from its medieval origins to the 
        Supreme Court's 1966 decision in Miranda v Arizona. It places 
        the ``Miranda rules'' in historical and constitutional 
        perspective; rigorously analyzes the Miranda decision itself; 
        describes the practical effects of Miranda and subsequent legal 
        developments; and compares current American law in this area to 
        the rules and practices of several foreign jurisdictions. It 
        also analyzes the policy considerations relevant to the 
        formulation of rules and procedures for pretrial questioning 
        and examines the prospects for reform.

After considerable analysis, the Report concluded that the Miranda 
decision ``had a major adverse effect on the willingness of suspects to 
provide information to the police.'' Studies conducted in various 
communities indicated that Miranda had substantially reduced the 
availability of confession evidence to the criminal justice system. One 
study in Pittsburgh, for example, determined that Miranda had roughly 
cut in half the number of suspected violent criminals who confessed or 
who otherwise provided useful information to the police--a reduction 
from about 60 percent before Miranda to about 30 percent afterward. In 
our judgment, these studies amply bore out the concern initially 
expressed by Justice Byron White in his dissent in Miranda:

          In some unknown number of cases, the Court's rule will return 
        a killer, a rapist or other criminal to the streets and to the 
        environment which produced him, to repeat his crime whenever it 
        pleases him. As a consequence, there will not be a gain, but a 
        loss in human dignity. The real concern is not the unfortunate 
        consequences of this new decision on the criminal law as an 
        abstract, disembodied series of authoritative proscriptions, 
        but the impact on those who rely on the public authority for 
        protection * * * There is, of course, a saving factor: the next 
        victims are uncertain, unnamed and unrepresented in this case.

In addition, the Report concluded that the continued application of 
Miranda (a) violated the constitutional principle of separation of 
powers by promulgating a code of procedure for interrogations that 
exceeded the requirements of the Fifth Amendment and that more properly 
was the responsibility of the executive and legislative branches; (b) 
violated the constitutional principle of federalism by enforcing 
admittedly non-constitutional rules against state courts; (c) impaired 
the effectiveness of the criminal justice system by requiring the 
expenditure of limited law enforcement resources in developing cases 
that might easily have been made with the suspect's cooperation prior 
to Miranda, and in requiring the prosecutor to accept pleas that were 
not commensurate with the seriousness of the actual offense; and (d) 
undermined public confidence in the law by freeing known criminals on 
the basis of what were perceived by many as ``technicalities'' and 
prolonging the anguish of criminal victims through years of additional 
criminal litigation.
    The Report further concluded that Sec. 3501 represented a valid, 
constitutional response by the Congress to the Miranda decision in 
light both of the Court's assertions that its required warnings were 
not mandated by the Fifth Amendment and its express invitation to the 
legislative branches of the federal and state governments to develop 
effective alternatives. As the Report asserted:

          Miranda should no longer be regarded as controlling because a 
        statute was enacted in 1968, 18 USC Sec. 3501, which overrules 
        Miranda and restores the pre-Miranda voluntariness standard for 
        the admission of confessions. Since the Supreme Court now holds 
        that Miranda's rules are merely prophylactic, and that the 
        Fifth Amendment is not violated by the admission of a 
        defendant's voluntary statements despite non-compliance with 
        Miranda, a decision by the Court invalidating this statute 
        would require some extraordinarily imaginative theorizing of an 
        unpredictable nature.\3\
---------------------------------------------------------------------------
    \3\ Additionally, the Report concluded that, even if Sec. 3501 was 
not directly effective in overruling Miranda, ``it is a relevant factor 
in deciding whether to overrule that decision. In the past the Supreme 
Court has been willing to reconsider and overturn constitutional 
decisions in light of later Congressional enactments which expressed 
disagreement with them. The Congressional findings embodied in 18 USC 
Sec. 3501 should also be accorded weight in deciding whether the time 
has come to overrule Miranda.''

    Concerning the best strategy for pursuing reform of Miranda, the 
Report recommended, first, that the Justice Department seek to persuade 
the Supreme Court to abrogate or overrule the Miranda decision by 
expressly relying upon Sec. 3501, as well as upon subsequent decisions 
of the Supreme Court which had held that non-compliance with Miranda 
did not entail any violation of the Constitution.\4\ The Report 
reasoned that Sec. 3501 related directly to federal proceedings, and 
could be rejected by the Court only by finding an Act of Congress to be 
unconstitutional. Further, if the Court upheld Sec. 3501, this would 
effectively dispose of Miranda at the state level as well since the 
States could then enact counterpart statutes to Sec. 3501. The 
validation of Sec. 3501 would have made it clear that any possible 
constitutional mandate for continuing to apply Miranda in contravention 
of such statutes had been rejected by the Supreme Court.
---------------------------------------------------------------------------
    \4\ See, in particular, Michigan v Tucker, 417 US 433 (1974); New 
York v Quarles, 467 US 649 (1984); and Oregon v Elslad, 470 US 298 
(1985).
---------------------------------------------------------------------------
    Second, the Report recommended that the Justice Department 
formulate an administrative policy, establishing standards for the 
conduct of custodial interrogations by federal law enforcement 
agencies. Such standards would be implemented concurrent with 
litigative efforts to seek reversal of Miranda. ``Promulgating such a 
policy would increase the likelihood of judicial acceptance of the 
abrogation of Miranda, ensure that the enlarged freedom of action 
resulting from Miranda's demise will be exercised responsibly, and 
demonstrate that implementing alternative procedures would promote fair 
treatment of suspects as well as furthering law enforcement.'' Issues 
to be considered in the development of an interrogation policy by the 
Department would include the desirability of requiring that 
interrogations, where feasible, be videotaped or recorded; the 
desirability of rules providing additional guidance concerning the 
permissible duration and frequency of interrogations; and the 
desirability of rules restricting or prohibiting specific deceptive or 
manipulative practices that were characterized as abusive in the 
Miranda decision and elsewhere.
    A number of considerations were cited in support of such new 
interrogation guidelines. First, the Office of Legal Policy considered 
such standards to be desirable as a matter of institutional 
responsibility. Currently, as well as at the time of the Report, the 
basic rules of custodial interrogations were determined by the Miranda 
decision, and enforced by courts through the exclusion of evidence. If 
this form of oversight was to be eliminated, as the Report urged, we 
believed that alternative measures were desirable which ensured that 
interrogations were carried out in a manner that was fair to suspects, 
and that did not jeopardize the admissibility or credibility of 
confessions in subsequent judicial proceedings.
    Second, the existence of an administrative policy of this sort 
would be of substantial value in persuading the courts to abandon 
Miranda. The courts were, by then, two decades after Miranda, well-
accustomed to setting the rules for custodial interrogations, and to 
enforcing the rules that they had created in particular cases. As a 
practical matter, it would be easier for them to relinquish this role 
if they knew that in doing so they were acceding to a responsible 
alternative system, rather than writing a blank check for individual 
officers or agencies.
    Third, the adoption of such rules represented an additional 
response (going beyond Sec. 3501) to Miranda's assertion that its rules 
were not the only acceptable means of ensuring compliance with the 
Fifth Amendment, and the Court's invitation to develop effective 
alternatives. A reasonably designed administrative policy would provide 
an argument for dispensing with Miranda's system even under the terms 
of the decision that created it. A related argument was based on the 
Court's later decision in INS v. Lopez-Mendoza, 468 US 1032 (1984), 
which held that the Fourth Amendment's exclusionary rule did not apply 
to deportation proceedings. In reaching this conclusion, the Court 
regarded it as significant that the INS had in place an administrative 
system for preventing and punishing Fourth Amendment violations. The 
Department could argue similarly that its internal system of 
administrative rules and sanctions provided adequate safeguards against 
Fifth Amendment violations, and justified dispensing with Miranda's 
prophylactic system.
    A final point in support of an administrative policy was that it 
would enable us to demonstrate that replacing the Miranda system with 
superior alternative rules offered major advantages in relation to the 
legitimate interests of suspects and defendants--especially a proposed 
requirement that custodial interrogation sessions be videotaped--as 
well as major gains in promoting effective law enforcement. Adopting 
publicly articulated standards which avoided the Miranda rules' 
shortcomings as a means of ensuring fair treatment of suspects would be 
the most effective way of making this point.
    In explaining this rationale for new custodial interrogation 
guidelines, let me emphasize, however, that the Report was not of the 
view that the constitutionality of Sec. 3501 was contingent upon the 
implementation of such guidelines. Rather, it made clear that Sec. 3501 
was constitutionally defensible--independent of any executive branch 
guidelines--under the express terms of Miranda and its recent progeny. 
As an enactment of the Congress, Sec. 3501 standing by itself was 
entitled to considerable deference on the part of the judiciary. While 
alternative interrogation guidelines, in our judgment, would enhance 
the overall interests of the criminal justice system, including its 
protection of defendants' rights, such guidelines were justified on 
their own terms, as well as in order to allay the concerns of those who 
disagreed with Sec. 3501 as a matter of policy, rather than as a 
necessary predicate to the constitutionality of Sec. 3501.
                      custodial questioning policy
    Following issuance of the Report, the Attorney General convened 
several meetings of senior Justice Department officials to discuss its 
recommendations. Considerable discussion and debate ensued at these 
meetings, after which the Attorney General established a Task Force to 
develop specific departmental guidelines governing custodial 
interrogation by federal law enforcement agencies. In May 1987, after 
review from both the law enforcement and the litigation components of 
the Justice Department, draft guidelines were formulated by the Task 
Force and in October 1987, they were formally presented to the Attorney 
General.
    One part of the draft guidelines set forth general standards 
concerning the custodial interrogation process relating to such matters 
as the legal prohibition of coercion, the prompt production of a 
suspect before a magistrate, the training of officers in the legal and 
administrative rules governing custodial questioning, the investigation 
of possible violations, and the establishment of penalties for such 
violations. A second part of the guidelines set forth detailed 
procedures to be utilized by the Department's investigating agencies in 
place of the Miranda procedures. Such procedures were discretionary and 
to be employed only when determined to be useful by the interrogating 
agents. The alternative procedure required the interrogators to deliver 
revised warnings to suspects, informing them:

          (1) You do not have to say anything; (2) anything you do say 
        may be used as evidence; (3) we are required by law to bring 
        you before a judge without unnecessary delay; (4) you have a 
        right to be represented by a lawyer once that occurs; (5) if 
        you cannot afford a lawyer, the judge will appoint one for you 
        without charge.

After delivering these warnings, the interrogators would ask the 
suspect whether he understood these warnings and answer any questions 
pertaining to them. Most significantly, the custodial interrogation was 
required to be videotaped, although support also existed on the Task 
Force for only audiotaping such interrogations.
    The draft policy attempted to provide a workable alternative to the 
Miranda warnings, going beyond Sec. 3501, that more effectively 
promoted the twin objectives of protecting the rights of the individual 
and promoting efficient enforcement of the criminal laws. Concerning 
the first objective, the policy provided additional safeguards to 
suspects not available under Miranda. The videotaping requirement 
provided an objective audio and visual record of an interview that 
could be reproduced in subsequent judicial proceedings, while the 
requirement that a suspect be advised of his right to prompt production 
before a magistrate and to the assistance of counsel once that occurs. 
In addition, the guidelines required that a suspect be advised of his 
right to prompt production before a magistrate and to the assistance of 
counsel once that occurred and also required the training of officers 
in Fifth Amendment law and related administrative standards. There are 
no comparable requirements under the Miranda rules.
    The record established by the videotaping requirement would be in 
contrast with custodial interrogations under the current Miranda 
requirements which are normally secret proceedings and which generate 
no objective record concerning (a) compliance with the specified 
procedural rules; (b) statements and representations made by the 
interviewer to the suspect; (c) statements and admissions made by the 
suspect; and (d) other occurrences at the interview. When disputes 
concerning these matters arise in later proceedings, they are typically 
resolved at present on the basis of ``swearing matches'' between the 
suspect and the interviewing officers. The videotaping requirement 
accordingly would provide a type and degree of objective protection for 
the suspect that does not exist under Miranda. See generally, American 
Law Institute, Model Code of Pre-Arraignment Procedure, Sec. 130.4 
Commentary at 341-42 (``the concern about the danger of police abuse 
which cannot subsequently be established in court * * * has in no way 
been lessened by the Miranda decision.'').\5\
---------------------------------------------------------------------------
    \5\ In connection with the videotaping recommendation, substantial 
analysis was also done of the experiences of Orange County (Cal.) and 
the State of Alaska, two jurisdictions which had experimented with the 
videotaping of custodial interrogations. The most consistently 
identified benefit of recording was its value in rebutting coercion and 
Miranda claims, as well as in foreclosing subsequent denials of 
admissions by suspects.
---------------------------------------------------------------------------
    At the same time, the alternative procedure dispensed with the 
specific features of Miranda that have done the greatest damage to 
legitimate law enforcement: (a) the `prophylactic' Miranda right to 
counsel in connection with custodial questioning; \6\ and (b) the 
requirement that an affirmative waiver of the rights set out in the 
Miranda warnings must be obtained from a suspect prior to 
questioning.\7\ Taken together, these aspects of the Miranda decision 
have effectively established a constitutional right going far beyond 
the Fifth Amendment's fights not to be compelled to incriminate 
oneself--the right not to be questioned at all. Studies set forth in 
the Report have demonstrated that these specific requirements have led 
to a substantial reduction in the number of statements by suspects to 
investigators, even in jurisdictions where suspects were already 
receiving warnings concerning the right to remain silent. [Attachment 
C.] These features of Miranda are, at best, only remotely related to 
enforcement of the Fifth Amendment which does not address the right to 
counsel and which does not require prior consent to questioning, but 
only bars eliciting responses through coercion. Far more effective 
protection against actual coercion is provided by the videotaping 
requirement and the other safeguards contained in the draft guidelines.
---------------------------------------------------------------------------
    \6\ The Supreme Court has held that the Sixth Amendment 
constitutional right to counsel does not attach until a suspect is 
formally accused and that the Miranda right to counsel at the earlier 
stage of custodial questioning is only a suggested safeguard against 
coercion that the Constitution does not require. See, e.g., Moran v 
Burbine, 475 US 412 (1986).
    \7\ An affirmative waiver is not in itself a prerequisite to a 
valid waiver. Answering questions when not compelled to do so has been 
held to be a sufficient waiver at least in a non-custodial setting. 
See, e.g. Minnesota v Murphy, 465 US 420, 427-29 (1984). Since the 
Miranda warnings themselves are not constitutionally required, but are 
simply `measures to insure' that a suspect's right against self-
incrimination is protected in a custodial setting, no single, 
inflexible formulation is required to insure this protection.
---------------------------------------------------------------------------
                          Sec. 3501 litigation
    Following presentation of the draft guidelines to the Attorney 
General, and further discussions within the Department, efforts were 
undertaken to attempt to identify a case in which the Department could 
directly raise the constitutionality of Sec. 3501. Such efforts 
involved identifying a case in which the voluntariness of a confession 
was not essentially in dispute, and therefore in which there was no 
actual coercion in violation of the Fifth Amendment, but nevertheless a 
case in which an element of the Miranda warnings had not been properly 
given. Although I recall that discussion within the Department focused 
upon a number of cases in various postures within the federal system, 
in particular, I recall that considerable attention was accorded to 
United States v Goudreau, an Eighth Circuit case, in which a number of 
components of the Department, including the Office of Legal Policy, 
specifically recommended the invocation of Sec. 3501. Although 
Sec. 3501 had not been raised in this case before the trial court, the 
Department had contended that defendant's statements were voluntary and 
should be admitted despite the absence of warnings. My further 
recollection is that Sec. 3501 was eventually raised in this case but 
that it did not prove to be a dispositive issue.
    Additionally, informal guidelines on constitutional litigation were 
issued by the Department to the United States Attorneys offices in 
February of 1988 which included guidelines relating to the Miranda 
procedures. These guidelines concluded that, ``[f]ederal prosecutors, 
in appropriate cases, should urge the courts to apply broadly the 
principles underlying the various limitations to Miranda.'' As the 
result, however, of an inability on the part of the Department to 
identify a further case in which to invoke the constitutionality of 
Sec. 3501, and the arising of issues of greater immediate priority, the 
Department never proceeded further to raise the constitutionality of 
Sec. 3501 during the Reagan Administration.
                               conclusion
    Members of the Judiciary Committee, there is no more significant 
criminal justice issue that this Committee could address than the 
legacy of Miranda v Arizona. While the impact of Miranda is a largely 
hidden one, there is no criminal procedural innovation in modem times 
that has been more costly. No legacy of the revolution in criminal 
procedure of the 1960's and 1970's has been more devastating to the 
first civil right of individuals, the right to be protected from 
domestic predators. While it may be easier to deal with criminal 
justice problems whose costs are more visible, if effective reform of 
the criminal justice system is to be undertaken, unsettling such 
``settled'' areas of the law as Miranda is required. Until that time, 
society can do little more than continue to count Justice White's 
``unknown number'' of killers, rapists, and other criminals who go free 
because of the devastating impact of Miranda upon confession evidence 
available to the system. I would respectfully urge you to reaffirm the 
earlier words of this Committee when it enacted Sec. 3501 thirty years 
ago, ``the traditional right of the people to have their prosecuting 
attorneys place in evidence before juries the voluntary confessions and 
incriminating statements made by defendants simply must be restored.'' 
Thank you very much for the invitation to appear here this afternoon.

    [Editor's note: The attachments A-E referred to in the prepared 
statement of Stephen J. Markman are retained in the subcommittee 
files.]
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[GRAPHIC] [TIFF OMITTED] T0782.004

    Senator Thurmond. Mr. Romley.

                 STATEMENT OF RICHARD M. ROMLEY

    Mr. Romley. Mr. Chairman and members of this subcommittee, 
let me first thank you very much for giving me this opportunity 
to be here before you today.
    The matter we are to do discuss, in my opinion, has an 
unfortunate consequence of undermining public confidence in our 
criminal justice system. As has been pointed out, I am the 
Maricopa County District Attorney and the chief prosecutor for 
the sixth largest county in America. Ironically, as the 
Maricopa County Attorney, I am the successor to the previous 
county attorney in which Ernesto Miranda, the Miranda v. 
Arizona decision, came out of.
    Currently, there is a request before the U.S. Supreme Court 
to hear an appeal from the U.S. Court of Appeals for the fourth 
circuit involving the Miranda decision. As has been pointed 
out, the issue revolves around a ruling by the court of appeals 
to admit into evidence the voluntary confession of a serial 
bank robber by the name of Charles Dickerson even though he had 
not received his Miranda warnings. Unfortunately, in my 
opinion, the Justice Department has expressed the view that 
such a confession is inadmissible and has issued a directive to 
that effect. That decision, in my opinion, should be changed.
    When the Supreme Court in the Miranda decision instructed 
law enforcement officials to provide certain warnings to a 
criminal suspect held in custody before questioning, the Court 
invited Congress and the States to experiment with other 
methods of ensuring a suspect's fifth amendment right rather 
than strictly following the procedural guidelines issued in 
Miranda.
    However, in doing so, they were clear to point out that 
they must provide adequate protection to the privilege against 
self-incrimination. In 1968, as the previous speaker has 
indicated, the omnibus crime control bill was passed and was 
codified in 18 U.S.C. 3501, which does not require the 
automatic preclusion of Miranda.
    In the Dickerson case, when the fourth circuit decided that 
matter, it referred to that particular statute and said that 
excluding evidence of an otherwise voluntary confession because 
a defendant had not received his Miranda warnings is not 
constitutionally mandated. The court went on to say,

          * * * in enacting Section 3501, Congress recognized 
        the need to offset the harmful effects created by 
        Miranda's unrebuttable presumption * * *  no longer 
        will criminals who have voluntarily confessed their 
        crimes be released on more technicalities.

    The court of appeals reached this conclusion in spite of 
what the court perceived to be a political decision by the 
Justice Department to not argue section 3501. The court said,

          Fortunately, we are a court of law and not politics. 
        Thus, the Department of Justice cannot prevent us from 
        deciding this case under the governing law simply by 
        refusing to argue it.

    As a prosecutor of 20 years of experience, I have seen 
firsthand the tragic effects on victims of crime that occurs 
when a voluntary confession of the, in my opinion, obviously 
guilty are suppressed. As a result, I have witnessed a serious 
erosion in the public's confidence in our criminal justice 
system.
    No one disagrees that a confession that is coerced--if a 
defendant is psychologically or physically abused, then his or 
her confession should not be admissible in a criminal 
courtroom. However, this administration's position that there 
is an automatic exclusion in a criminal trial of a defendant's 
otherwise voluntary confession does not serve justice. The 
strict application of the exclusionary rule creates social 
costs unacceptable to law-abiding citizens. Such a position, in 
my opinion, is absurd on its face and favors form or substance, 
formalities over justice.
    To graphically illustrate the injustice when an otherwise 
voluntary is excluded solely because Miranda was not 
technically adhered to, I would cite an Arizona case. Toribio 
Rodriguez was accused of brutally stabbing, sexually assaulting 
and killing a person by the name of Dawn Dearing. While being 
lawfully detained pursuant to a court order so that police 
could obtain blood and hair samples, Rodriguez was questioned 
by the police and he gave a statement. After trial, he was 
convicted and sentenced to death.
    This conviction was reversed and his incriminating 
statements were suppressed merely because Miranda warnings were 
not given, even though there was not one bit of evidence to 
indicate coercion or involuntariness. Mr. Rodriguez is 
presently awaiting retrial. This injustice cannot be the result 
intended when we were all afforded the protection of the fifth 
amendment.
    I would strongly urge the Justice Department to support the 
fourth circuit's ruling recognizing the constitutionality of 
section 3501. It is time to balance the scales of justice.
    Thank you.
    Senator Sessions [presiding]. Thank you.
    [The prepared statement of Mr. Romley follows:]

                Prepared Statement of Richard M. Romley

    Mr. Chairman and members of this subcommittee:
    Thank you very much for giving me this opportunity to appear before 
you today and to discuss with you a matter that has the unfortunate 
consequence of undermining public confidence in our criminal justice 
system.
    As the Maricopa County district attorney, I am the chief prosecutor 
for the sixth largest county in America. Maricopa County encompasses 
Phoenix, Arizona, along with 23 other cities. I am here to discuss with 
you a matter that involves the Miranda decision. Ironically, I am a 
successor to the prosecutor who initiated the original case against 
Ernesto Miranda. Miranda v. Arizona, 384 U.S. 36 (1966).
    Currently, there is a request before the U.S. Supreme Court to hear 
an appeal from the U.S. Court of Appeals for the Fourth Circuit 
involving the Miranda decision. The issue revolves around a ruling by 
the court of appeals to admit into evidence the ``voluntary 
confession'' of a serial bank robber by the name of Charles Dickerson 
even though he had not received his Miranda warning. Unfortunately, the 
Justice Department has expressed the view that such a confession is 
inadmissible and has issued a directive to that effect. that decision 
should be changed.
    When the Supreme Court in the Miranda decision instructed law 
enforcement officials to provide certain warnings to a criminal suspect 
held in custody before questioning, the court invited Congress and the 
States to experiment with other methods of insuring a suspect's Fifth 
Amendment right rather than strictly follow the procedural guidelines 
issued in Miranda. However, in doing so they must provide adequate 
protection to the privilege against self-incrimination. In 1968, 
Congress passed and President Johnson signed into law the Omnibus Crime 
Control and Safe Streets Act. It contained a provision codified at 18 
U.S.C. Sec. 3501 providing that a violation of ``Miranda'' does not 
result in the automatic exclusion of a confession, but is only one 
factor to be considered in determining voluntariness and admissibility.
    When the Fourth Circuit decided the Dickerson case, it referred to 
Sec. 3501 and said that excluding evidence of an otherwise voluntary 
confession because a defendant had not received his Miranda warnings is 
not constitutionally mandated. the court went on to say:

          * * * in enacting Sec. '3501, Congress recognized the need to 
        offset the harmful effects created by Miranda's unrebuttable 
        presumption * * * no longer will criminals who have voluntarily 
        confessed their crimes be released on mere technicalities.

    The court of appeals reached this conclusion in spite of what the 
court perceived to be a political decision by the Justice Department to 
not argue Sec. 3501. The court said:

          Fortunately we are a court of law and not politics. Thus, the 
        Department of Justice cannot prevent us from deciding this case 
        under the governing law simply by refusing to argue it.

    As a prosecutor with more than 20 years experience, I have seen 
firsthand the tragic effect on victims of crime that occurs when 
voluntary confessions of the obviously guilty are suppressed. As a 
result, I have witnessed a serious erosion in the public's confidence 
in our criminal justice system. No one disagrees that if a confession 
is coerced, if a defendant is psychologically or physically abused, 
then his/her confession should not be admissible in a criminal 
courtroom. However, this administration's position that there is an 
``automatic exclusion'' in a criminal trial of a defendant's otherwise 
``voluntary'' confession does not serve justice. The strict application 
of the exclusionary rule creates social costs unacceptable to law-
abiding citizens. Such a position is absurd on its face and favors 
``form over substance'' * * * ``formalities over justice.''
    To graphically illustrate the injustice when an otherwise voluntary 
confession is excluded solely because ``Miranda'' was not technically 
adhered to, I would cite the 1996 case of Aarizona v. Rodriguez. 186 
Ariz. 240, 921 P.2D 643 (1996).
    Toribio Rodriguez was accused of brutally stabbing, sexually 
assaulting and killing Dawn Dearing. While being lawfully detained 
pursuant to a court order so that police could obtain blood and hair 
samples, Rodriguez was questioned by the police and he gave a 
statement. After trial, he was convicted and sentenced to death. This 
conviction was reversed and his incriminating statement was suppressed 
merely because Miranda warnings were not given, even though there was 
not one bit of evidence to indicate coercion or involuntariness. Mr. 
Rodriguez is presently awaiting retrial.
    This injustice cannot be the result intended when we were all 
afforded the protection of the Fifth Amendment.
    I strongly urge the justice department to support the fourth 
circuit's ruling recognizing the constitutionality of Sec. 3501. It is 
time to balance the scales of justice.
    Thank you.

    Senator Sessions. Mr. Gallegos.

                STATEMENT OF GILBERT G. GALLEGOS

    Mr. Gallegos. Good afternoon, Mr. Chairman and other 
members of the Subcommittee on Criminal Justice Oversight. My 
name is Gilbert Gallegos. I am the National President of the 
Fraternal Order of Police, which is the largest law enforcement 
organization in the country, 277,000 members. I am pleased to 
have this afternoon to speak in support of the recent decision, 
United States v. Dickerson.
    I have got to add a footnote to my remarks in that I have 
lived as a police officer--and I guess I am telling my age--
before Miranda. I was a rookie officer in 1966 when Miranda was 
decided, so I have had the opportunity to deal with both sides 
of the Miranda issue. I think it has helped the law enforcement 
profession become more professional in how it deals with it, 
but I think that we have some definite problems that we have to 
address and I think that Dickerson addresses that.
    Let me give you one example of how it has impacted law 
enforcement. On July 24, 1985, the bodies of Paul Conrad and 
Sandra Wicker were discovered in Lancaster, PA. Through 
informants, the detectives of the Lancaster Police Department 
were able to come up with a suspect by the name of Zook, and 
they directed where this Zook would be located and sure enough 
they were able to find him and took him into custody.
    He was brought in to police department and shortly 
thereafter read his Miranda rights. Incidentally, he also had 
some weapons in his possession, along with some property that 
eventually turned out to be from one of the victims. So they 
felt they had a pretty good suspect, so they started talking to 
the suspect and he denied that he was involved and couldn't 
give any real corroboration as to where he was involved at and 
that he didn't know the victims.
    But, in fact, Sandra Wicker, who was one of the victims--
her name was located in his address book. When they confronted 
him with that, he became very angry. So he said he wanted to 
call his mother to see if she could find him an attorney. So he 
went to call his mom and came back, and the officers again 
asked him, do you want to continue with it. He chose to 
continue and gave a confession.
    Ultimately, the Supreme Court of Pennsylvania ruled that it 
was inadmissible, the confession, because of the fact that he 
went and called his mother. But the fact is that he voluntarily 
gave a confession and it was not coerced. That is the kind of 
technicality I think Dickerson addresses and that we in law 
enforcement have to deal with all the time.
    I think 3501--Congress has taken a positive step, as they 
did in 1968, to address this issue, and I think that it only 
makes good sense that the 1968 decision by Congress should be 
upheld by all courts.
    Now, the thing to look at as far as Miranda is the way it 
impacts police officers. We have to often make the decision as 
to when is the right time to give the Miranda warnings. So 
often, police officers are second-guessed, and it takes judges, 
such as Judge Markman, many years to determine, in fact, 
whether a decision was made appropriately by the police officer 
and whether that confession should be brought into the record.
    But a police officer often has to make that under stressful 
situations, in the street, or whenever the situation arises 
that they have to make the Miranda warning available to the 
suspect. So even though it isn't always required, the practice 
has been around the country that police officers pretty much, 
as a matter of fact, give the Miranda warnings and, in fact, 
obtain confessions even after giving the warnings and they are 
not coerced. So I think that the court decision rises to the 
real needs of the rank-and-file police officers out in the 
street who are trying to deal with the public safety issues 
that confront this country.
    The thing that some of the critics have talked about as far 
as Miranda and reducing the threshold level of Miranda is that 
confessions will be coerced. I think that is a standard that 
has evolved over the years since 1966 and before that, for that 
matter, that involuntary confessions or coerced confessions 
have never really been upheld by the court anyway even before 
Miranda.
    So I think that the fact that Dickerson has been passed on 
by the Fourth Circuit Court of Appeals--the naysayers will say 
that it is going to reduce that threshold. I don't think it 
does that. Police officers are going to continue to give the 
Miranda warnings, are going to continue to extract confessions 
that are reasonable, not coerced, not under threat, from 
suspects. That will happen, and I think that needs to happen 
across this country.
    So I think the logic of public safety, I think the logic of 
rational approach to taking confessions, I think the logic of 
saying we make mistakes on occasion, but they don't have to be 
such mistakes that they override the public safety--and I think 
that really is what the issue is here.
    Thank you, Mr. Chairman.
    Senator Sessions. Thank you.
    [The prepared statement of Mr. Gallegos follows:]

                 Prepared Statement Gilbert G. Gallegos

    Good morning, Mr. Chairman and distinguished members of the Senate 
Subcommittee on Criminal Justice Oversight. My name is Gilbert G. 
Gallegos, National President of the Grand Lodge, Fraternal Order of 
Police. The F.0.P. is the nation's largest organization of law 
enforcement professionals, representing more than 277,000 rank-and-file 
law enforcement officers in every region of the country.
    I am pleased to have the opportunity this morning to speak in 
support of a recent court decision, United Slates v. Dickerson, which 
upholds; a Congressional attempt to address legislatively the issues of 
pretrial interrogations and self-incrimination which are currently 
governed by the Supreme Court's decision in Miranda v. Arizona (1966).
    Law enforcement officers have a demanding and difficult job, and 
much is expected of us--whether it's rescuing a cat, directing traffic, 
delivering a baby, or busting a drug dealer. As a police officer, I am 
very proud to say that the brave men and women who I am privileged to 
represent here today work very hard to meet, and hopefully exceed, 
those expectations every day.
    A career in law enforcement, like any other, is not without its 
frustrations. But for a police officer, these frustrations have less to 
do with the workplace and more to do with our criminal justice system 
which all too often allows criminals to avoid justice because of 
``technicalities.''
    What precisely are these technicalities? Perhaps the American 
public does not know how many criminals are walking the streets today 
or how many will be released from prisons today because of these 
``technicalities.'' I would wager, however, that most law enforcement 
officers would be able to tell you how many crooks they arrested have 
walked on a ``technical.''
    Let me give you just one example of how this can happen On July 24, 
1985, the bodies of Paul Conrad and Sandra Wiker were discovered in 
Lancaster, Pennsylvania. It was a brutal murder--the victims had been 
stabbed, strangled, bound and gagged.
    Two days later, several detectives of the Lancaster Police 
Department, along with the District Attorney, interviewed two people 
who provided information linking a man named Zook to the killings and 
naming a hotel where they thought Zook could be found. The police 
decided to stake out the motel. A few hours later, Zook left his hotel 
room, and pursuant to their instructions, the police officers placed 
him under arrest. At that time, Zook had in his possession a knife and 
a revolver along with two rings later identified as belonging to Paul 
Conrad.
    Zook was brought to police headquarters and, shortly thereafter, 
read his Miranda rights. He was questioned about the murders and the 
weapons in his possession. It is worth noting that Zook was not at all 
unfamiliar with police procedure or the criminal justice system, having 
been previously convicted of attempted murder, robbery, burglary and 
criminal conspiracy. According to Lancaster Police Lieutenant Michael 
Landis, one of the interrogating officers, Zook offered an explanation 
of his whereabouts on various key dates, but could not provide the 
names of witnesses to corroborate his story. He could offer no cogent 
explanation as to why he checked into the motel under an alias. He 
claimed he got the gun and the ring in exchanges for drugs but would 
not, or could not, name the other party to the transaction. When asked 
whether he knew Sandra Wiker, he denied knowing her. When confronted 
with the fact that her name was listed in his own address book, he 
could not explain the discrepancy and became angry.
    At the pre-trial hearing to determine whether or not Zook's 
statements should have been suppressed, Lieutenant Landis stated that 
about two-thirds of the way into the interview, after being asked if he 
knew Conrad or Wiker, Zook asked if he could use the phone to call his 
mother to see if she could get him an attorney. At this point, the 
officer asked if this meant Zook wanted him to stop the questioning 
until Zook had an attorney present. Zook told Lieutenant Landis, no and 
allowed the interview to continue.
    By a 4 to 3 vote, the Pennsylvania Supreme Court threw out Zook's 
conviction for the murders. The Court ruled that under Miranda Lt. 
Landis should have stopped questioning when he asked to use the phone 
even though Zook agreed to continue and there was no evidence of 
coercion. Since, the Court said, it could not be established exactly 
when Zook asked to make the phone call, all of his statements had to be 
thrown out.
    I should point out that there is no question Zook made his 
statements voluntarily, not as a result of any improper police 
coercion. I should also point out that of the eight judges who examined 
the question as to whether the Lancaster Police Department had to stop 
questioning when Zook made his request, four found that they should 
have and four found that they had no reason to do so. Yet the jury's 
conviction of Zook for these two brutal murders was thrown out.
    This is a technicality.
    The issue before the Fourth Circuit in Dickerson was precisely the 
question of whether to let a confessed, dangerous criminal go free on a 
``technicality.'' Fortunately, the Fourth Circuit refused to allow this 
to happen, and instead applied a law Congress had passed in 1968--
Section 3501 of Title 18, U.S. Code. ``No longer will criminals who 
have voluntarily confessed their crimes be released on mere 
technicalities,'' the court wrote in upholding this law. To this 
holding, law enforcement officers all across the country say, ``It's 
about time,''
    With all the legal gymnastics available to defense lawyers, the 
caprice of judges and overburdened prosecutors, it is certain that many 
persons who ought to be locked up are walking the streets today. Many 
blame law enforcement officers, expecting us to be legal experts on 
exclusionary rule law and be able to quote verbatim all case law on the 
Fourth, Fifth, and Fourteenth amendments. Police officers make life and 
death decisions every day; they are trained to prevent crime and catch 
criminals. They know the law and apply it every day as they walk their 
beats and patrols. They are also called upon to exercise their judgment 
and common sense in uncommon situations. Unfortunately, we too often 
find that common sense is not always admissible in court.
    A big step toward common sense was taken when Congress passed 
section 3501. That statute encouraged police agencies to give the now 
standard ``Miranda'' warnings. But at the same time, it said that a 
confession could be used in court so long as it was ``voluntary.'' This 
approach properly recognizes the vital importance of confessions to law 
enforcement. No one suggests that police officers should be able to 
coerce or threaten a suspect to obtain a confession. But that is not 
what the Miranda decision is about. Even, before Miranda, any 
confession obtained by threats--an ``involuntary'' confession--was 
excluded. Miranda did not add anything to those situations, and Section 
3501 preserves in full force the rule that involuntary confessions 
cannot be admitted. Instead, Miranda created a whole host of new 
procedural requirements that applied, not to situations of threats, but 
to ordinary, everyday police questioning all over the country.
    Here it is important to understand what rules the decision actually 
imposed on police. The general public may think that it knows all about 
Miranda from watching television programs and seeing the four warnings 
read from a card. But for police officers on the streets, much more is 
involved.
    To begin with police officers have to decide when it is time to 
apply the Miranda procedures. The courts have told officers that 
warnings are required only when a suspect is in ``custody.'' Making 
this determination is very complicated, as shown by the fact that 
respected judges with ample time to consider the issues frequently 
cannot agree among themselves over whether or not a suspect was in 
custody. If a suspect is in ``custody,'' Miranda warnings must be given 
whenever ``interrogation'' of a suspect begins, Here again, respected 
judges have often disagreed on what constitutes interrogation, but 
police officers are expected to know on the spot, often in tense and 
dangerous situations.
    If a suspect in ``custody'' is ``interrogated,'' police officers 
must not only read Miranda warnings but then obtain a ``waiver'' of 
rights from the suspect. Pages of judicial ink have been spilled on 
what constitutes a valid waiver of rights, but police officers must 
decide almost instantaneously whether they have a valid waiver from a 
suspect. Then, once officers get a waiver, they must be constantly 
ready to know if a suspect has changed his mind and decided to assert 
his right to see a lawyer or to remain silent. If this change of mind 
has taken place, a police officer must still know if and when he can 
reapproach a suspect to see if the suspect has changed his mind yet 
again.
    Finally, on top of all this, police are expected to know that 
Miranda warnings are not always required, as the Supreme Court has 
specifically created exceptions for situations involving public 
safety'' or ``routine booking,'' and other courts have recognized 
exceptions for routine border questioning, general on-the-scene 
questioning, and official questioning at a meeting requested by a 
suspect. And police, too, must know about whether a suspect has been 
questioned by officers from another agency and about another crime and 
another time, if so, whether a suspect invoked his rights during that 
other questioning.
    Police officers all around the country spend a great deal of time 
attempting to learn all these rules and follow them faithfully. But 
since judges disagree with exactly how to apply all these rules, it is 
not surprising to find that police officers too will occasionally make 
mistakes and deviate from some of the Miranda requirements.
    There will also be situations when police officers and criminal 
suspects disagree about whether all the rules were followed. Dickerson 
provides a very good illustration of this. Charles Dickerson, the 
confessed bank robber, said that he received his warnings only after he 
had given his confession.
    The officer involved testified to the contrary that they followed 
their normal procedures and read the warnings before questioning. 
Dickerson apparently had prior experience as a suspect in the criminal 
justice system and had probably even heard the Miranda rights before. 
In situations like this, it makes no sense to throw out a purely 
voluntary confession on technical arguments about exactly when the 
Miranda warnings were read, for all the reasons that the Fourth Circuit 
gives in its opinion.
    Of course, our Constitution, and the Bill of Rights in particular, 
were enacted and ratified with the aim of protecting the individual 
from an abuse of power by government. In an arrest and interrogation 
situation, the law enforcement officers represent the government and no 
one ought to be deprived of their constitutional rights during that 
questioning. But the Fifth Amendment's prohibition of anyone being 
``compelled'' to be a witness was designed to protect against coercion 
by government agents, not technical mistakes that might occur in 
administering complicated court rules. This was exactly what the Fourth 
Circuit recognized in its Dickerson opinion in refusing to allow, what 
the court describes as, ``mere technicalities'' to prevent a completely 
voluntary confession from being introduced before the jury.
    The Fourth Circuit also properly explained why legally this makes 
good sense. In Miranda v. Arizona, the Supreme court established 
various procedures to safeguard the Fifth Amendment rights of persons 
in custodial interrogations. The Court thought that, without certain 
safeguards, no statement obtained by law enforcement authorities could 
be considered ``voluntary'' and thus admissible in court. Ever since, 
the words, ``You have the right to remain silent * * *'' have been part 
of every law enforcement officers' lexicon.
    However, the Supreme Court has made it clear over the past 25 years 
that procedural safeguards imposed by the Miranda decision were not 
rights protected by the Constitution, but rather measures designed to 
help ensure that the right against self-incrimination was protected. As 
the Court explained a few years later in Michigan v. Tucker (1974), the 
safeguards were not intended to be a ``constitutional straightjacket'' 
but rather to provide ``practical reinforcement'' for the exercise of 
Fifth Amendment rights.
    In Tucker, a rape suspect gave exculpatory responses without being 
fully Mirandized. (He was questioned before the Court had decided 
Miranda.)
    The suspect's statements led them to a witness who provided 
damaging testimony, testimony which the defense sought to have excluded 
because the witness was located through an interrogation in which the 
suspect had not been fully advised of his rights. The Court, however, 
allowed the evidence to be used, explaining that ``[c]ertainly no one 
could contend that the interrogation faced by [the suspect] bore any 
resemblance to the historical practices at which the right against 
compulsory self-incrimination was aimed.''
    Similar to the decision in Tucker, the Supreme Court ruled in New 
York v. Quarles (1985) that there is a `` `public safety' exception to 
the requirement that Miranda warnings be given.'' Police officers 
approached by a victim raped at gunpoint were advised that her attacker 
had just entered a supermarket. After arresting the suspect and 
discovering an empty holster on his person, the officer asked, ``Where 
is the gun?'' The suspect revealed where he had hidden the weapon, an 
important piece of evidence, which the suspect's lawyers successfully 
excluded in State court because the suspect was not Mirandized between 
his arrest and the ``interrogation.''
    The Supreme Court, however, overruled the lower court's decision 
stating that police officers ought not to be ``in the untenable 
position of having to consider, often in a matter of seconds, whether 
it best serves society for them to ask the necessary questions without 
the Miranda warnings and render whatever probative evidence they 
uncover inadmissible, or for them to give the warnings in order to 
preserve the admissibility of evidence they might uncover but possibly 
damage or destroy their ability to obtain that and neutralize the 
volatile situation confronting them.'' The Court recognized the 
``kaleidoscopic situation * * * confronting the officers,'' not that 
spontaneity rather than adherence to a police manual is necessarily the 
order of the day,'' and worried that ``had Miranda warnings deterred 
[the suspect] from responding to [the officer's] questions, the cost 
would have been something more than merely the failure to obtain 
evidence useful in convicting Quarles. [The officer] needed an answer 
to his question not simply to make his case against Quarles but to 
insure that further danger to the public did not result from the 
concealment of the gun in a public area.'' Accordingly, the Court 
allowed the statement made by Quarles to be used against him.
    The logic of the Supreme Court's ``public safety'' decision in 
Quarles is exactly the logic of Section 3501. This statute was drafted 
in 1968, after the Senate Judiciary Committee held extensive hearings 
on the effects of the Supreme Court's rulings in Miranda and some other 
cases. The Committee was deeply concerned about Miranda's effects on 
public safety, concluding that ``[t]he rigid, mechanical exclusion of 
an otherwise voluntary and competent confession is a very high price to 
pay for a `constable's blunder.' ''
    To reduce that high price, Congress enacted 19 U.S.C. 3501, which 
instructs Federal judges to admit confessions ``voluntarily made.'' The 
statute also spelled out the factors a court must ``take into 
consideration'' in order to determine the ``voluntariness'' of a 
confession. The Senate report which accompanied the ``Omnibus Crime 
Control and Safe Street Act of 1968,'' explained the rationale for 
Section 3501 quite bluntly: ``[C]rime will not be effectively abated so 
long as criminals who have voluntarily confessed their crimes are 
released on mere technicalities * * * The Committee is convinced that 
the rigid and inflexible requirements of the majority opinion in the 
Miranda case are unreasonable, unrealistic and extremely harmful to law 
enforcement.''
    Unfortunately, for various legal reasons that will doubtlessly be 
discussed by others in this hearing, the benefits of this statute were 
not generally obtained until the Fourth Circuit's recent decision in 
Dickerson. The F.O.P. agrees with the Fourth Circuit--as well as with 
the United States Congress--that this statute is constitutional and 
that it is a prudent and necessary approach to considering defendants' 
motions to suppress voluntary confessions.
    It has taken too long for the statute to be applied by the courts, 
but we now hope that the decision will be quickly upheld in the Supreme 
Court, so that the benefits of the statute will be available in all 
cases presented in Federal court. F.O.P. members often work cases 
prosecuted in Federal court and, indeed, the Dickerson case itself 
involved a coordinated effort by both Federal and local police officers 
to apprehend Dickerson and bring him to justice.
    We also hope that the benefits of the statute will end up being 
extended to State courts as well. Arizona has a statute almost 
identical to Section 3501, and we expect that a favorable ruling on the 
Federal statute would help that state and other states draft similar 
legislation. Moreover, even without any State statutes, a favorable 
court ruling on Section 3501 might well set the stage for avoiding the 
suppression of voluntary confessions because of technical Miranda 
issues in state courts.
    In considering the statute, it is important to understand that 
police officers will continue to give Miranda warnings if the 
principles of Section 3501 are applied around the country. The statute 
itself provided that the giving of Miranda warnings is a factor to be 
considered in determining whether a confession is voluntary. The Fourth 
Circuit specifically pointed to this fact in upholding the statute. It 
said, ``Lest there be any confusion on the matter, nothing in today's 
opinion provides those in law enforcement with an incentive to stop 
giving the now familiar Miranda warnings. * * * [T]hose warnings are 
among the factors a district court should consider when determining 
whether a confession was voluntarily given.'' Police agencies will 
continue to do their best to follow Miranda when the statute is applied 
just as we do now, The only change will be that dangerous confessed 
criminals, like Mr. Dickerson, will not escape justice and be set free 
to commit their crimes again. The F.O.P. strongly endorses this return 
to common sense in our nation's courtrooms, and hopes that the Congress 
and the Department of Justice will do whatever they can to insure that 
this is the ruling of the United States Supreme Court.
    On behalf of its members, the F.0.P. is also keenly interested in 
having the Supreme Court affirm the Dickerson opinion because of its 
implication for civil damage suits that are filed against police 
agencies. As the Committee is well aware, police agencies and law 
enforcement officers today are frequently sued in a variety of 
circumstances. Responding to such suits requires significant time and 
energy that could otherwise be devoted to apprehending criminals. That 
time and energy should be devoted to litigation only when crucial 
issues are at stake.
    Courts around the country have routinely held that a mere 
allegation that a police officer failed to properly deliver all of the 
Miranda warnings is not the sort of allegation that warrants a Federal 
civil rights lawsuit under Section 1983. Because Miranda rights are not 
constitutionally required, the courts have repeatedly explained, 
alleged Miranda violations are not actionable under Section 1983. Many 
courts have reached this conclusion, which demonstrates not only that 
this position is a strong one, but also that police officers frequently 
face lawsuits from disgruntled criminal suspects that they have 
interviewed who are motivated solely by a desire to disrupt law 
enforcement activities.
    So long as the Dickerson opinion is upheld by the Supreme Court, 
this line of cases will remain in place. Dickerson explained that ``it 
is certainly well established that the failure to deliver Miranda 
warnings is not itself a constitutional violation,'' Yet those who 
challenge Dickerson jeopardize not only that court's specific decision 
but the rationale that has shielded police officers from having to 
respond to a civil rights suit whenever they have arguably deviated 
from Miranda. The F.O.P. therefore strongly supports Dickerson not 
simply because it helps insure the conviction of dangerous criminals, 
but also because it helps to permit police officers to concentrate on 
their difficult task of catching and convicting criminal defendants 
rather than spending time themselves as defendants in unwarranted civil 
lawsuits.
    In closing, let me say that I agree with those who have expressed 
concerns about Miranda's harmful effects on law enforcement. Sometimes 
we hear the claim that police have ``learned to live with Miranda'' as 
an argument against any change in the rules used in our courts. If what 
is meant by this is that police will do their very best to follow 
whatever rules the Supreme Court establishes, it is true police have 
``teamed to live with Miranda.'' Indeed, since 1966, police 
professionalism in this country has expanded tremendously in many ways.
    But if what is meant by this is that police ``live with'' and do 
not care about the harmful effects of these Court rules, nothing could 
be further from the truth. I can tell you from my experience as a law 
enforcement officer that too often these rules interfere with the 
ability of police officers to solve violent crimes and take dangerous 
criminals off the streets. The main culprit is not the Miranda 
warnings, which suspects have often heard time and again. The barrier 
to effective police questioning comes from all of the other technical 
requirements, which in far too many cases make it impossible for 
police, officers to ask questions of suspects, and to rigid 
exclusionary rules that prevents the use of any information obtained if 
there is the slightest hint of noncompliance.
    Many crimes can only be solved and prosecuted if law enforcement 
officers have a chance to interview criminals and have their 
confessions introduced in court. Unfortunately, the Miranda procedures 
and its accompanying exclusionary rule in many cases prevent the police 
from ever having this opportunity.
    It is no coincidence that immediately after the imposition of all 
these technical requirements by the Supreme Court's decision in 
Miranda, the criminal case ``clearance rate'' of the nation's police 
fell sharply. At the time, police officers around the country pointed 
to the Miranda decision as one of the major factors in this drop, and 
time has proven them right.
    Time has also proven the wisdom of the action that Congress took 
back then. Responding to the urgent requests of law enforcement, 
Congress decided to restore common sense to our criminal justice system 
by enacting Section 3501. This is a law that needs to be enforced so 
that entire ``voluntary'' confessions obtained by hardworking police 
officers are not suppressed from the jury.
    As a country, we should never ``learn to live with'' the 
devastating effects of crime, To the contrary, we should never stop 
striving to improve our efforts to apprehend and convict dangerous 
criminals through fair and appropriate means. The F.O.P. and its 
members are constantly working to find better ways to help provide safe 
streets and safe communities to all our nation's citizens. The F.O.P. 
strongly supports Section 3501 as a vital step in this direction.
    Mr. Chairman, I would like to thank you and all the distinguished 
members of this Subcommittee for your efforts to advance Section 3501. 
I would be pleased to answer any questions you may have.

    Senator Sessions. Professor Richman.

                 STATEMENT OF DANIEL C. RICHMAN

    Mr. Richman. Thank you, Mr. Chairman. I thank the committee 
for inviting me to be here. I testify as a former Federal 
prosecutor in the Southern District of New York and as a 
current criminal procedure professor at Fordham Law School, in 
New York.
    My focus will be, first, on whether the Justice Department 
could properly decide to forgo using 3501 to defend confessions 
in Federal court, and, second, on whether the Department's 
decision not to use 3501 is an appropriate exercise of its 
enforcement discretion.
    That Federal enforcers, prosecutors and law enforcement 
have and should exercise broad discretion over what criminal 
cases they should bring should not be open to question. 
Criminal statutes are drafted broadly, and prosecutors are 
supposed to mediate between the broad language and both the 
equities of a case and the needs of the communities they serve.
    The next question is whether, in cases that the executive 
decides to bring or is thinking about bringing, are enforcers 
bound to use every tactic authorized by the Constitution and/or 
by statute. The answer here must be no, and I suspect Congress 
would not want it otherwise. We don't want to live in a world 
where Federal agents use every tactic at their disposal in 
every case. Reasonable minds may differ on what restraint is 
appropriate, but in the end policy decisions that are not 
compelled by law must be made. There thus can be no question 
that the Department of Justice could choose to require Miranda-
type warnings be given in Federal cases, as indeed was the 
policy of the FBI before Miranda was ever decided.
    The same point about executive discretion can also be made 
with respect to arguments in adjudicative proceedings. To take 
a trivial example, the mere fact that a rule of evidence 
appears to bar or authorize the introduction of a bit of 
testimony does not legally obligate a prosecutor to object to 
it or to introduce it. There are many reasons why he may not do 
so in a particular case. The Department of Justice may also 
implement the policy of restraint more systemically as well, as 
it has in the successive prosecution area.
    Against this backdrop, the Department's policy with respect 
to 3501 seems well within its powers. Having committed itself 
to the use of Miranda-type warnings, the Department evidently 
reasoned that its commitment would be for naught if it turned 
around and defended confessions on grounds other than Miranda 
and its progeny. To make arguments based on 3501 would send the 
wrong message to Federal agents, suggesting that Miranda 
violations were excusable. And the message would be even worse 
for State law enforcement officers who, while not being subject 
to departmental discipline, generate a great many of the 
Federal cases involving confessions.
    If the decision to eschew 3501 was within the Department's 
discretion, the issue becomes whether that exercise of 
discretion was appropriate. I believe it was. My position does 
not rest on the empirical debate on the effects of Miranda on 
clearance rates. My own experience with Miranda warnings lead 
me to believe that they don't deter confessions, in part 
because television has inured people to their meaning, but I 
won't press this point.
    The fact that, according to one view of the sketchy 
evidence, future suspects may have confessed once Miranda 
warnings were required, does not necessarily mean that the 
decrease was caused simply by the fact that suspects now knew 
their rights.
    The most important point about Miranda was not the legal 
information that it required suspects to be given, but who was 
required to give that information. Police officers now 
explicitly had to acknowledge constitutional limits on their 
conduct in a suspect's presence. To the suspect terrified of 
being held in communicado or of being beaten, even if such 
fears were groundless, this was a powerful message. It might 
well have decreased confessions, but these were confessions 
that no decent society had a right to expect.
    The reasonableness of the Justice Department's commitment 
to Miranda does not rest only in arguments of simple decency. 
There are also excellent law enforcement arguments. As a line 
prosecutor, and even as an appellate attorney concerned with a 
broad range of cases, I rarely had to brief Miranda issues. 
Under Miranda, agents and police officers know what is 
required, and when proper warnings have been given, defense 
challenges to confessions rarely go anywhere, if they are made 
at all.
    In contrast, were enforcers to rely on 3501, that 
provision's broad totality of the circumstances inquiry would, 
at the very least, make for far more complicated suppression 
hearings. In addition to reducing litigation costs and 
uncertainty, the predictability allowed by Miranda also aids 
law enforcement by giving the properly Mirandized suspect who 
has confessed a clear incentive to cooperate against other 
targets without waiting for the resolution of his fifth 
amendment claim. Quick cooperation, of course, will be far more 
valuable to investigators.
    To be sure, the Department could require the giving of 
Miranda warnings, but still invoke 3501 to defend confessions 
alleged to have violated Miranda. As I have already suggested, 
however, such a course would give uncertain guidance to agents 
and police officers, and reduce the power of the Department's 
directive.
    Federal prosecutors occupy a unique place in the Federal 
law enforcement system. For the most part, they do not have 
hierarchical control over Federal agents, some of whom are not 
even part of the Justice Department, and they certainly have no 
control over the State and local officers who increasingly are 
investigating cases that end up in Federal court.
    Nonetheless, we want Federal prosecutors to stand as a 
buffer between law enforcement officers and citizens. One way 
prosecutors can do their duty in this regard is to exercise 
their monopoly over the bringing of criminal charges. Another 
way is to have and to exercise similar discretion as to the 
legal arguments used to support those charges. I believe the 
Department has done just that in the case of 3501, and has done 
so appropriately.
    I would also like to add that in light of the testimony we 
have heard today, particularly from Mr. Gallegos and Mr. 
Romley, there may well be arguments in State jurisdictions with 
respect to the problems caused by Miranda in the enforcement 
context. What is interesting, though, is that we do not see the 
kind of move of 3501-type legislation in the States. We only 
see it in the Federal system, where generally we do not have a 
system of custodial interrogations.
    I would like to thank the committee for inviting me to be 
here.
    Senator Sessions. Thank you, Professor Richman.
    [The prepared statement of Mr. Richman follows:]

 Prepared Statement of Daniel C. Richman, Associate Professor of Law, 
                 Fordham Law School, New York, New York

    I thank the members and staff of the Committee for the opportunity 
to participate in this hearing. I have long been a student of federal 
criminal law, first as a law clerk for Chief Judge Wilfred Feinberg, of 
the Second Circuit Court of Appeals, and for Justice Thurgood Marshall, 
of the Supreme Court, and then as an Assistant United States Attorney 
in the Southern District of New York. During my five and half years, at 
the U.S. attorney's office, I prosecuted numerous narcotics cases, 
worked in the Organized Crime and Appellate units, and ultimately 
served as Chief Appellate Attorney. For the last seven years, I have 
been a full-time law professor, and am currently an associate professor 
at Fordham Law School, where I teach courses in Criminal Procedure, 
Federal Criminal Law, and Evidence.
    My focus here will be on two aspects of the debate involving 18 
U.S.C. Sec. 3501: first, whether the Justice Department could properly 
decided to forgo using Sec. 3501 to defend confessions in federal 
court, and, second,'whether the Department's decision not to use 
Sec. 3501 was an appropriate exercise of its enforcement discretion.
    That federal enforcers--prosecutors and law enforcement agents--
have and should exercise broad discretion over what criminal cases they 
bring should not be open to question. Criminal statutes are drafted 
broadly, and prosecutors are supposed to mediate between the broad 
language and both the equities of a case and the needs of the 
communities they serve. The fact that conduct can be reached by a 
criminal statute is not the end of a conversation about prosecutorial 
power; it is the beginning.
    The next question is whether the scope of this enforcement 
discretion extends only to decisions about whether to prosecute, and 
not to questions about enforcement tactics. Put differently: In cases 
that the executive decides to bring, are enforcers bound to use every 
tactic authorized by the Constitution and/or by statute? The answer 
here must be ``no,'' and I suspect that Congress would not want it 
otherwise. We don't want to live in a world where federal agents use 
every tactic at their disposal in every case--a world with, say, no 
institutional restraints on undercover investigations, or on grand jury 
subpoenas to lawyers or media representatives. Reasonable minds may 
differ on what restraint is appropriate (as was recently shown when 
certain members of Congress took the I.R.S. to task for its enforcement 
tactics). In the end, though, policy decisions that are not compelled 
by law must be made. Such decisions go to the essence of executive 
power, as much as decisions about whom to charge. There thus can be no 
question that the Justice Department could choose to require that 
Miranda-type warnings be given in federal cases, as indeed was the 
policy of the Federal Bureau of Investigation before Miranda was ever 
decided.
    The same point about executive discretion can be made with respect 
to arguments in adjudicative proceedings. To take a trivial example: 
The mere fact that a rule of evidence appears to bar or authorize the 
introduction of a bit of testimony does not legally oblige a prosecutor 
to object to it or introduce it. And there are many reasons why he may 
not do so in a particular case. The Justice Department may implement a 
policy of restraint more systematically as well, as it has in the 
successive prosecution area. Back in 1960, the Department filed a 
motion to vacate the conviction of a defendant who had already been 
prosecuted for other offenses arising out the same transaction; the 
Supreme Court acceded. Although no statute or constitutional rule 
required this result, the Department cited its policy against pursuing 
such cases, a policy that continues to this day.
    Against this backdrop, the Department's policy with respect to 
Sec. 3501 seems well within its powers. Having committed itself to the 
use of Miranda-type warnings, the Department evidently reasoned that 
its commitment would be for naught if it turned around and defended 
confessions on grounds other than Miranda and its progeny. To make 
arguments based on Sec. 3501 would send the wrong message to federal 
agents, suggesting that Miranda violations were excusable. And the 
message would be even worse for state law enforcement officers, who, 
while not being subject to departmental discipline, generate a great 
many of the federal cases involving confessions. (Confession issues 
generally don't come up in white collar cases, in large part because 
white-collar defense lawyers are in the picture at an early stage. This 
tendency will become even more pronounced now that the Ethical 
Standards for Federal Prosecutors Act will substantially limit the 
ability of prosecutors and their agents to speak with represented 
parties.)
    If the decision to eschew Sec. 3501 was within the Justice 
Department's discretion, the issue becomes whether that exercise of 
discretion was appropriate. I believe it was. My position does not rest 
on the fascinating debate between Paul Cassell, on one side, and George 
Thomas and John Donohue (all of whom know and respect) and others on 
the effects of Miranda on clearance rates. My own experiences with 
Miranda warnings lead me to believe that they don't deter confessions, 
in part because television has inured people to their meaning. But I 
won't press this point. The ``fact'' that (according to one view of the 
sketchy evidence) fewer suspects may have confessed once Miranda 
warnings were required does not necessarily mean that the decrease was 
caused simply by the fact that suspects now knew their rights. The most 
important point about Miranda was not the legal information it required 
suspects to be given, but who was required to give that information. 
Police officers now explicitly had to acknowledge constitutional limits 
on their conduct, in a suspect's presence. To the suspect terrified of 
being held incommunicado, or of being beaten (even if such fears were 
groundless), this was a powerful message. It might well have decreased 
confessions, but these were confessions that no decent society had a 
right to expect.
    The reasonableness of the Justice Department's commitment to 
Miranda does not rest only on arguments of simple decency. There are 
also excellent law enforcement arguments. As a line prosecutor, and 
even as an appellate attorney concerned with a broad range of cases, I 
rarely had to brief Miranda issues. Under Miranda, agents and police 
officers know what is required, and, where proper warnings have been 
given, defense challenges to confessions rarely go anywhere (if they 
are made at all). In contrast, were enforcers to rely on Sec. 3501, 
that provision's broad totality of the circumstances inquiry would, at 
the very least, make for far more complicated suppression hearings. In 
addition to reducing litigation costs and uncertainty, the 
predictability allowed by Miranda also aids law enforcement by giving 
the properly Mirandized suspect who has confessed a clear incentive to 
cooperate against other targets without waiting for the resolution of 
his Fifth Amendment claim; quick cooperation will, of course, be far 
more valuable to investigators.
    To be sure, the Justice Department could require the giving of 
Miranda warnings but still invoke Sec. 3501 to defend confessions 
alleged to have violated Miranda. As I have already suggested, however, 
such a course would give uncertain guidance to agents and police 
officers, and reduce the power of the Department's directive.
    Federal prosecutors occupy a unique place in the federal law 
enforcement system. For the most part, they do not have hierarchical 
control over federal agents, some of whom are not even part of the 
Justice Department. And they certainly have no control over the state 
and local officers who increasingly are investigating cases that end up 
in federal court. But nonetheless, we want federal prosecutors to stand 
as a buffer between law enforcement officers and citizens. One way 
prosecutors can do their duty in this regard is to exercise their 
monopoly over the bringing of criminal charges. Another way is to have 
and to exercise similar discretion as to the legal arguments used to 
support those charges. I believe the Department has done just that in 
the case of Sec. 3501 and has done so appropriately.
    Again, I thank the Committee for inviting me to be here.

    Professor Thomas.

                   STATEMENT OF GEORGE THOMAS

    Mr. Thomas. Mr. Chairman, I thank the members and staff of 
the committee for inviting me to participate.
    In my written remarks, I discuss whether Miranda has harmed 
law enforcement, but in my oral remarks I address only the 
issue of whether 18 U.S.C. 3501 is constitutional in light of 
Miranda's core holding.
    The key to the Supreme Court's Miranda opinion was a 
finding of law and fact that custodial police interrogation 
constitutes inherent compulsion in every case. To counteract 
that inherent compulsion, the Court required warnings that 
advised the suspect of his right to remain silent and his right 
to counsel during interrogation. Miranda held that unless these 
warnings are given and the underlying rights waived, every 
statement is compelled within the meaning of the fifth 
amendment.
    To be sure, the Miranda Court encouraged Congress and the 
States to seek other ways of, ``protecting the rights of the 
individual while promoting efficient enforcement of ourcriminal 
laws.'' But the key to evaluating these alternatives lies in 
the very next sentence in the Miranda opinion, ``However, 
unless we are shown other procedures which are at least as 
effective in apprising accused persons of their right of 
silence, and in assuring a continuous opportunity to exercise 
it, the following safeguards must be observed.''
    The ``following safeguards,'' of course, are the famous 
Miranda requirement of warnings and waiver. Any statutory 
alternative must, therefore, satisfy the minimum Miranda 
requirement that it be, ``equally effective in apprising 
accused persons of their right of silence.''
    On the face of 3501, it cannot be equally effective in 
advising suspects of their right of silence because it does not 
require warnings. A rule that does not require warnings cannot 
advise suspects of their rights, as well as the Miranda rule 
that does require warnings. Thus, on the face of it, 3501 is 
squarely in conflict with the Miranda opinion.
    Some post-Miranda cases suggest--and my friend will talk 
about those--that Miranda is not a constitutional rule, but 
merely a prophylactic device that serves the fifth amendment by 
presuming that any statement is compelled if given without the 
benefit of warnings. On this presumptive reading of Miranda, it 
would be broader than the fifth amendment evil that Congress 
sought to address.
    Some have argued that these cases sever the link between 
Miranda and the fifth amendment, thus permitting Congress to 
tinker with or even replace the Miranda rule. But there is no 
reason why the Supreme Court cannot find a presumption to be 
part of a constitutional right and then use that presumption as 
a mechanism to protect the underlying right. Indeed, Miranda 
must be based on the fifth amendment. Otherwise, the Court 
lacks authority to apply Miranda to the States, as it has done 
in many cases.
    Moreover, the Supreme Court has repeatedly asserted, even 
in recent cases, that statements taken in violation of Miranda 
must be suppressed without inquiry into whether there was 
actual compulsion. As Justice Kennedy wrote for seven members 
of the Court in 1990, the Miranda rule,

          ensures that any statement made in subsequent 
        interrogation is not the result of coercive pressure. 
        [This] conserves judicial resources which would 
        otherwise be expended in making the difficult 
        determination of voluntariness * * * 

    Section 3501 returns to a test that Miranda explicitly 
rejected as a proper measure of fifth amendment compulsion--the 
voluntariness test. It would be paradoxical to permit a 
statutory version of voluntariness to replace the Miranda 
presumption that the Court used to replace the voluntariness 
test.
    Whether or not Miranda correctly decided how best to 
understand fifth amendment compulsion, the core holding remains 
undisturbed. A statement taken without warnings is presumed to 
be compelled. 18 U.S.C. 3501 is inconsistent with this core 
holding, and is therefore, in my opinion, unconstitutional.
    On the question of Miranda's effect on law enforcement, I 
refer the committee to my written statement where the argument 
is set out in some detail, with citations to various studies 
and papers.
    I thank you very much for your attention.
    Senator Thurmond [presiding]. Thank you very much.
    [The prepared statement of Mr. Thomas follows:]

 Prepared Statement of George Thomas, Distinguished Professor of Law, 
                       Rutgers University, Newark

                              oral remarks
    Mr. Chairman, I thank the members and staff of the Committee for 
inviting me to participate. In my written remarks, I discuss whether 
Miranda has harmed law enforcement. But in my brief oral remarks, I 
address only the issue of whether 18 U.S.C. Sec. 3501 is constitutional 
in light of Miranda's core holding.
    The key to the Supreme Court's Miranda opinion was a finding of law 
and fact that custodial police interrogation constitutes inherent 
compulsion in every case. To counteract that inherent compulsion, the 
Court required warnings that advise the suspect of his right to remain 
silent and his right to counsel during interrogation. Miranda held 
that, unless these warnings are given and the underlying rights waived, 
every statement is compelled within the meaning of the Fifth Amendment.
    To be sure, the Miranda Court encouraged Congress and the states to 
seek other ways of protecting the rights of the individual while 
promoting efficient enforcement of our criminal laws.'' \1\ But the key 
to evaluating these alternatives lies in the very next sentence in the 
Miranda opinion: ``However, unless we are shown other procedures which 
are at least as effective in apprising accused persons of their right 
of silence and in assuring a continuous opportunity to exercise it, the 
following safeguards must be observed.'' \2\ The ``following 
safeguards,'' of course, are the famous Miranda requirement of warnings 
and waiver.
---------------------------------------------------------------------------
    \1\ 384 U.S. at 467.
    \2\ Id.
---------------------------------------------------------------------------
    Any statutory alternative must, therefore, satisfy the minimum 
Miranda requirement that it be ``equally effective in apprising accused 
persons of their right of silence.'' On the face of Sec. 3501, it 
cannot be equally effective in advising suspects of their right of 
silence because it does not require warnings. A rule that does not 
require warnings cannot advise suspects of their rights as well as the 
Miranda rule that does require warnings. Thus, Sec. 3501 is squarely in 
conflict with the Miranda opinion.
    Some post-Miranda cases suggest that Miranda is not a 
constitutional rule but merely a prophylactic device that serves the 
Fifth Amendment by presuming that any statement is compelled if given 
without the benefit of warnings.\3\ On this reading of Miranda, it 
would be broader than the Fifth Amendment evil the Court sought to 
address. Some have argued that these cases sever the link between 
Miranda and the Fifth Amendment, thus permitting Congress to tinker 
with or replace the Miranda rule. But there is no reason why the 
Supreme Court cannot find a presumption to be part of a constitutional 
right and use that presumption as a mechanism to protect the underlying 
right. Indeed, Miranda must be based on the Fifth Amendment. Otherwise, 
the Court lacks authority to apply Miranda requirements on the states, 
as it has often done.\4\
---------------------------------------------------------------------------
    \3\ See, e.g., Oregon v. Elstad, 470 U.S. 298, 306-07 (1985).
    \4\ Three of the four cases that the Court decided in Miranda were 
state cases. Other state cases in which the Court reversed convictions 
for failure to comply with Miranda include Withrow v. Williams, 507 
U.S. 680 (1993); Minnick v. Mississippi, 498 U.S. 146, 151 (1990); 
Edwards v. Arizona, 451 U.S. 477 (1980). Withrow is particularly 
noteworthy because it held that a Miranda claim can be used in federal 
habeas to overturn a state conviction that had already survived direct 
appeal in state and federal court.
---------------------------------------------------------------------------
    Moreover, the Supreme Court has repeatedly asserted, even in recent 
cases, that statements taken in violation of Miranda must be suppressed 
without inquiry into whether there was ``actual'' compulsion. As 
Justice Kennedy wrote for seven members of the Court in 1990, the 
Miranda rule ``ensures that any statement made in subsequent 
interrogation is not the result of coercive pressures. [This] conserves 
judicial resources which would otherwise be expended in making the 
difficult determinations of voluntariness. * * * '' \5\
---------------------------------------------------------------------------
    \5\ Minnick v. Mississippi, 498 U.S. 146, 151 (1990).
---------------------------------------------------------------------------
    Section 3501 returns to a test that Miranda explicitly rejected as 
a proper measure of Fifth Amendment compulsion--the so-called 
``voluntariness'' test. It would be paradoxical to permit a statutory 
version of voluntariness to replace the Miranda presumption that the 
Court used to replace the voluntariness test.
    Whether or not the Miranda Court correctly decided how best to 
understand Fifth Amendment compulsion, the core holding remains: A 
statement taken without warnings is presumed to be compelled. 18 U.S.C. 
Sec. 3501 is inconsistent with that core holding and is, therefore, 
unconstitutional.
    On the question of Miranda's effect on law enforcement, I refer the 
Committee to my written statement, where the argument is set out in 
some detail with citations to various studies and papers.
    Thank you for your attention.
                            written remarks
    To summarize my argument about Miranda's effect on police 
interrogation: I believe that the evidence, while far from conclusive, 
is most consistent with what I have called a ``steady-state'' theory of 
confessions.\6\ Central to my ``steady-state'' theory are two premises: 
first, that Miranda has had roughly offsetting effects; second, that 
when police need confessions, they manage to finesse the Miranda 
warnings even when suspects are initially reluctant to talk.
---------------------------------------------------------------------------
    \6\ George C. Thomas III, ``Plain Talk About the Miranda Empirical 
Debate: A `Steady-State' Theory of Confessions,'' 43 UCLA L. Rev. 933, 
935-36 (1996).
---------------------------------------------------------------------------
    On Miranda's offsetting effects: It is likely true that some 
suspects decide not to answer questions because they know they have a 
right to refuse to talk to police. But other suspects will decide to 
answer questions because the Miranda warnings can be perceived as an 
opening gambit to a conversation; if the gambit is refused, the police 
will only become more suspicious. Thus, the suspect might think that 
his only chance to be released from custody is to provide an 
exculpatory version of what really happened. But the exculpatory 
version will usually be shot through with lies, evasions, and 
inconsistent statements, which turn out to be incriminating. Miranda 
thus might have the perverse effect of making some suspects incriminate 
themselves.
    On the police need for confessions: The second premise underlying 
my ``steady-state'' theory of confessions is that when police need (or 
perceive a need for) a confession, they can maneuver their way through 
the Miranda minefield and, in many cases, persuade the suspect to waive 
his Miranda rights and answer questions. Once the suspect has waived 
Miranda, the rules for evaluating any subsequent confession are the old 
voluntariness rules that permit a good deal of leeway for police to 
trick, cajole, and manipulate suspects.
    The empirical findings are consistent with this ``steady-state'' 
hypothesis, though the evidence is flawed and difficult to interpret. I 
begin with what is universally accepted in the academy: there is no way 
to know for certain what the confession rate was prior to Miranda 
because the few studies seeking to measure that rate are 
methodologically flawed. Given the lack of a baseline rate for 
confessions prior to Miranda, we will likely never know with anything 
approaching scholarly certainty what effect Miranda has had.
    More fundamentally, as Professor Stephen Schulhofer of the 
University of Chicago has pointed out with particular clarity, real 
life is too messy and complex for us to make a confident assessment of 
what might have caused a decline (or increase) in the confession 
rate.\7\ The year 1966 brought us more than Miranda. It brought 
deepening involvement in the Viet Nam War; it brought increased drug 
use among the youth, along with a counterculture that rejected 
authority; it brought increasing awareness of the instances of 
mistreatment of black citizens by police. Two years later, the war 
would be raging, Martin Luther King and Bobby Kennedy would be 
assassinated, and the national mood would be at a fever pitch. Even if 
we knew for certain that the rate of confessions declined in the years 
following Miranda, why would we think that Miranda, rather than the 
counterculture movement and antiwar sentiment, caused the decline?
---------------------------------------------------------------------------
    \7\ Stephen J. Schulhofer, ``Miranda's Practical Effect: 
Substantial Benefits and Vanishingly Small Social Costs,'' 90 Nw. U.L. 
Rev. 500, 510-15 (1996).
---------------------------------------------------------------------------
    That said, however, one can construct an average from the best of 
the pre-Miranda studies and obtain a rough approximation of what the 
pre-Miranda rate might have been. From there one can at least argue 
that some or most of the change is attributable to Miranda. I have 
estimated a pre-Miranda rate, as has Professor Cassell. Our 
approximations differ. He reads the pre-Miranda confessions rate as 55-
60 percent.\8\ I read it as 45-53 percent. Though I think my reading is 
better than Professor Cassell's, I concede that both are plausible 
readings of the data. If we split the difference at 53 percent, and 
compare that to the post-Miranda studies, Professor Cassell and I still 
disagree because we disagree about the best way to read the new 
studies. He counts incriminating statements more narrowly than I do, 
for example. The researchers who conducted three recent studies 
characterized the confessions rate that they found as 64 percent, 62 
percent, and 42 percent, for an average rate of 56 percent,\9\ which is 
at the low end of Professor Cassell's estimate of the pre-Miranda rate 
and above my estimate. (Professor Cassell's reading of the empirical 
data is not as widely held in the academy as mine. Professor Stephen 
Schulhofer, University of Chicago, and Dr. Richard Leo, University of 
California, Irvine, essentially agree with my reading of the empirical 
evidence,\10\ while no researcher, to my knowledge, has published a 
paper indicating agreement with Professor Cassell's reading of the 
data.)
---------------------------------------------------------------------------
    \8\ Paul Cassell and Bret S. Hayman, ``Police Interrogation in the 
1990's: An Empirical Study on the Effect of Miranda,'' 43 UCLA L. Rev. 
821, 917 (1996).
    \9\ These studies, two of which were conducted by the National 
Institute of Justice and one by Dr. Richard Leo, are discussed in 
George C. Thomas III, ``Plain Talk About the Miranda Empirical Debate: 
A `Steady-State' Theory of Confessions,'' 43 UCLA L. Rev. 933, 953-56 
(1996).
    \10\ See Richard A. Leo, ``The Impact of Miranda Revisited,'' 86 J. 
Crim. L. & Criminology 621 (1996); Stephen J. Schulhofer, ``Miranda's 
Practical Effect: Substantial Benefits and Vanishingly Small Social 
Costs,'' 90 Nw. U. L. Rev. 500 (1996).
---------------------------------------------------------------------------
    So where's the beef about Miranda causing a decline in confessions? 
I think the problem is that most people, certainly all nine members of 
the Miranda Court, accepted as intuitively obvious that if a guilty 
suspect is told he need not answer police questions, he will act from 
rational self interest and refuse to answer, and that the police will 
be without psychological weapons to overcome a reluctance to testify. 
That surely happens in some cases but a contrary, perverse effect may 
be occurring in other cases. This is based on a calculation of suspect 
behavior that I have proposed.\11\
---------------------------------------------------------------------------
    \11\ See George C. Thomas III, ``Plain Talk About the Miranda 
Empirical Debate: A `Steady-State' Theory of Confessions,'' 43 UCLA L. 
Rev. 933, 935-36 (1996); George C. Thomas III, ``A Philosophical 
Account of Coerced Self-Incrimination,'' 5 Yale J. L. & Humanities 79 
(1993).
---------------------------------------------------------------------------
    On my account, the Miranda warnings tell a suspect something about 
his situation that he sometimes does not know--he is the number one 
suspect and is under arrest. Moreover, telling him that he need not 
answer, paradoxically, puts pressure on him to answer. I imagine that 
some suspects think roughly as follows:

        I will remain in police custody unless I come up with a 
        plausible explanation of whatever facts the police possess. 
        Moreover, the police have told me that I need not answer but 
        only a guilty person would refuse to answer. If I don't answer, 
        it will only make them more suspicious. If I answer, on the 
        other hand, I will look innocent and might be able to outsmart 
        the police who, after all, don't have all the facts.

    These reactions to the Miranda warnings are not what any member of 
the Miranda Court likely expected. This kind of thinking could often 
lead the suspect to provide inconsistent explanations that worsen his 
situation. I thus believe that the Miranda warnings cause some suspects 
to answer who would otherwise have remained silent, and cause others to 
offer an exculpatory version of their guilty acts when otherwise they 
would have provided less illuminating answers.
    Moreover, the Miranda Court underestimated the ability of police to 
create incentives for suspects to waive Miranda. Perhaps the best 
account of this is in David Simon's book, Homicide, which is drawn from 
his experiences watching the Baltimore Homicide Unit for an entire 
year. In the chapter on interrogation, the police manage to persuade a 
guilty suspect that they are in a way on his side, that they are his 
last chance to present an exculpatory version of the killing before he 
is charged. As Simon puts it:

        The effect of the illusion is profound, distorting as it does 
        the natural hostility between hunter and hunted, transforming 
        it until it resembles a relationship more symbiotic than 
        adversarial. That is the lie, and when the roles are perfectly 
        performed, deceit surpasses itself, becoming manipulation on a 
        grand scale and ultimately an act of betrayal. Because what 
        occurs in an interrogation room is indeed little more than a 
        carefully staged drama, a choreographed performance that allows 
        a detective and his suspect to find common ground where none 
        exists. There, in a carefully controlled purgatory, the guilty 
        proclaim their malefactions, though rarely in any form that 
        allows for contrition or resembles an unequivocal 
        admission.\12\
---------------------------------------------------------------------------
    \12\ David Simon, ``Homicide, A Year on the Killing Streets,'' 
(1991).

    In sum, I believe that Miranda causes some suspects not to confess 
and a roughly similar number to confess. If something like my ``steady-
state'' theory of confessions is correct, then Miranda has not on 
balance harmed law enforcement at all.
    Do I have conclusive evidence of this hypothesis? No. But no one 
has conclusive evidence rebutting it either. I am in the process of 
seeking funding for a research project designed to test my hypothesis, 
and I hope to have results in two years.
    Professor Cassell has sought to isolate another pernicious effect 
of Miranda--that it has lowered the ``clearance'' rate (the rate at 
which police solve crimes). The theory here is that if Miranda 
persuades more suspects to remain silent than to talk, the police will 
solve fewer crimes. Cassell and his co-author Richard Fowles conducted 
a multiple regression analysis and published a paper concluding that 
the fall in crime clearance rates following Miranda was at least 
partially attributable to the Miranda restrictions on police 
interrogation.\13\
---------------------------------------------------------------------------
    \13\ Paul G. Cassell and Richard Fowles, ``Handcuffing the Cops? A 
Thirty-Year Perspective on Miranda's Harmful Effects on Law 
Enforcement,'' 50 Stan. L. Rev. 1055 (1998).
---------------------------------------------------------------------------
    But the same objection can be lodged here as against the effort to 
``blame'' Miranda for any change in the confession rate. If police 
solved fewer crimes in 1968, for example, the most likely culprit might 
be the social upheaval caused by the assassination of Dr. King in the 
spring of that year. Or drug use and the counterculture generally. Or 
the national self-hatred about the war in Viet Nam. Professor John 
Donohue makes this same point in response to the Cassell-Fowles paper 
and also observes that while youth rebellion receded in later years, 
``drugs, gangs, and crime are clearly more pernicious in the period 
after the mid-1960's than they were in the preceding fifteen years. 
Neither Cassell nor Fowles, nor any other researchers, have found a way 
to control for these influences in regression models, so the Cassell-
Fowles article implicitly attributes all of these effects to Miranda.'' 
\14\ But this attribution is, to put it mildly, controversial.
---------------------------------------------------------------------------
    \14\ John J. Donohue III, ``Did Miranda Diminish Police 
Effectiveness?,'' 50 Stan. L. Rev. 1147, 1159 (1998).
---------------------------------------------------------------------------
    In sum, Paul Cassell has made claims about Miranda's effects on law 
enforcement, claims that can be supported only by weak empirical data 
or controversial assumptions about attribution of post-Miranda 
developments to Miranda rather than the vast changes taking place in 
our society. And the weak empirical data is at least as consistent with 
a ``steady-state'' theory of confessions in which suspects are 
encouraged to talk to police at roughly the same rate as before Miranda 
was decided.
    Until there is better empirical evidence, the claim that Miranda 
has harmed law enforcement should be taken with quite a large grain of 
salt.

    Senator Thurmond. How far are you?
    Senator Sessions. We are down to Professor Cassell.
    Senator Thurmond. Professor Cassell.

                  STATEMENT OF PAUL G. CASSELL

    Mr. Cassell. Thank you, Mr. Chairman. Our Constitution 
places on the President the duty to take care that the laws be 
faithfully executed. The President is not given the power to 
pick and choose which laws he will execute. In our system of 
separated powers, the lawmaking power is entrusted to the 
people's representatives here in Congress.
    The current Justice Department has said that it agrees with 
this view, and has solemnly assured Congress that it will 
defend the constitutionality of statutes in all cases where 
reasonable arguments can be made on their behalf. In this 
respect, the Department has not taken the position that we 
heard articulated by Professor Richman this afternoon.
    Indeed, when asked specifically about section 3501, the 
current Department has until quite recently claimed that it had 
no policy against defending the law and, to the contrary, that 
it would defend the statute in appropriate cases. In spite of 
these solemn pledges, the Justice Department has been unable to 
find a single case where it could vigorously defend the 
statute. Indeed, for the past 6 years the Department appears to 
have undertaken to prevent any enforcement of section 3501.
    At first, these efforts were covert as the Department's 
political appointees maneuvered behind the scenes to block 
efforts by career prosecutors to use the law to secure 
convictions of dangerous criminals. More recently, when forced 
to show their hand by court order, the Department has even 
overly joined in an unholy alliance with criminal defendants to 
argue that there is no reasonable position supporting the law.
    On February 8, 1999, these efforts to block the enforcement 
of the law came to a crashing halt. On that day, the U.S. Court 
of Appeals for the Fourth Circuit announced its decision in 
United States v. Dickerson, applying the statute to prevent the 
escape of a dangerous bank robber on technical Miranda grounds.
    In emphatically rejecting the arguments of the Justice 
Department, the court explained that it had little difficulty 
in concluding that section 3501, enacted at the invitation of 
the Supreme Court and pursuant to Congress' unquestioned power 
to establish rules of evidence in Federal Court, is 
constitutional. The court also spoke a few pointed words about 
the Department's maneuvering in that case. It said that the 
Department's efforts to bar career prosecutors from defending 
section 3501 was an action, ``elevating politics over law.''
    Unfortunately, it is hard to disagree with the fourth 
circuit's harsh assessment. Plainly, there are reasonable 
arguments that can be made on behalf of the statute. These 
arguments are found in the exhaustive opinion, for example, in 
Dickerson written by Judge Karen Williams, a respected jurist 
from South Carolina, and sustained by an 8-5 vote of the full 
fourth circuit.
    These arguments are in no way novel, as they closely follow 
earlier decisions by the 10th circuit and the District Court 
for the District of Utah. Beyond that, the Justice Department 
itself has historically taken the view that the statute is 
constitutional. From 1969 to at least 1993, this was the stated 
policy of the Department. It was also the view of career 
prosecutors all over this country who advanced arguments on 
behalf of the statute in a number of different cases.
    And last but by no means least, Congress has expressed its 
considered view that the statute is constitutional. Section 
3501 was approved in 1968 by overwhelming bipartisan 
majorities. It may be of more than historical interest to note, 
for example, that the chair of this subcommittee, Senator 
Thurmond, was an original cosponsor. More recently, the 
chairman of the Judiciary Committee, Senator Hatch, and eight 
of his colleagues wrote a detailed letter to the Department 
expressing their considered opinion that the statute is 
constitutional.
    In short, to believe that there are no reasonable arguments 
on behalf of section 3501, one has to accept that the fourth 
circuit, the 10th circuit, Justice Department officials from 
1969 to 1993, career prosecutors all over the country, and 
largemajorities in both political parties are not simply wrong, 
but are unreasonably wrong. This is implausible, to put it 
charitably.
    If the Department's decision not to defend the statute were 
simply a violation of our system of separated powers, that 
would be bad enough, but what is at stake with the statute is 
more than that. The statute's nonenforcement jeopardizes the 
safety of law-abiding citizens, citizens who count on the 
Department to keep dangerous criminals from shattering innocent 
lives with acts of terrible criminal violence.
    Congress spoke for the innocent in passing section 3501. 
Yet, the current Department, in actually joining with criminal 
defendants to defeat the law, has put the interests of those 
who commit violent crimes ahead of those who suffer from them. 
``There is no excuse for this,'' as Justice Scalia succinctly 
put it. I strongly urge the subcommittee to do whatever it can 
to bring these excuses to an end and to begin the effort to 
extend the benefits of the law throughout the country. Thank 
you for inviting me to testify, Mr. Chairman.
    [The prepared statement of Mr. Cassell follows:]

                 Prepared Statement of Paul G. Cassell

    Mr. Chairman and Distinguished Members of the Committee, I am 
pleased to be here today to urge the Department of Justice to enforce 
18 U.S.C. Sec. 3501, the statute passed by Congress in 1968 to ensure 
the admission of voluntary confessions from dangerous criminals in 
federal courts.
    On January 31, 1998, I stood before the U.S. Court of Appeals for 
the Fourth Circuit in Richmond, Virginia, to defend this Act of 
Congress on behalf of the Washington Legal Foundation. Unfortunately, I 
also stood alone. Although seated in that courtroom were several quite 
capable, experienced career federal prosecutors, they had been ordered 
by political appointees in Washington, D.C., not to defend this statute 
on behalf of the United States. Indeed, these prosecutors had 
apparently even been ordered to tell the Fourth Circuit that this Act 
of Congress was somehow unconstitutional, joining the position of the 
serial bank robber whose case was before the Court.
    That these career prosecutors were ordered to take such a position 
was stunning. The longstanding policy of the Department of Justice is 
to defend a law duly enacted by Congress when any ``reasonable'' 
argument can be made in defense of its constitutionality. The 
Department has even described this policy to defend Acts of Congress 
where reasonable arguments can be made as rising to the level of a 
``duty'':

        The Department appropriately refuses to defend an act of 
        Congress only in the rare case when the statute either 
        infringes on the constitutional power of the Executive or when 
        prior precedent overwhelmingly indicates that the statute is 
        invalid. * * * [T]he Department has the duty to defend an act 
        of Congress whenever a reasonable argument can be made in its 
        support, even if the Attorney General and the lawyers examining 
        the case conclude that the argument may ultimately be 
        unsuccessful in the courts.\1\
---------------------------------------------------------------------------
    \1\ 5 Opinions of the Office of Legal Counsel 25, 25-26 (Apr. 6, 
1981) (emphases added).

The current political appointees in the Department claim to follow this 
established principle. For example, Solicitor General Seth Waxman was 
asked by Senator Hatch during confirmation hearings whether he would 
adhere to the view that the Department ``is bound to defend the 
constitutionality of all acts of Congress unless no reasonable 
arguments can be made in support.'' Mr. Waxman solemnly replied: ``I 
absolutely will.'' \2\
---------------------------------------------------------------------------
    \2\ Hearing on the Nomination of Seth Waxman to be Solicitor 
General of the United States: Senate Comm. on the Judiciary, 105th 
Cong., 1st Sess. 8 (Nov. 5, 1997); see also id. at 6-7 (Solicitor 
General should defend a law ``except in the rarest instances'').
---------------------------------------------------------------------------
    The Department's obligation to defend Acts of Congress where 
``reasonable'' arguments can be made is critical to our constitutional 
system of separated powers, as it is unclear whether the Executive has 
the power to do anything other than enforce the law passed by Congress. 
The President, of course, is required ``to take care that the Laws be 
faithfully executed.'' \3\ Long ago the Supreme Court concluded that, 
``To contend that the obligation imposed on the President to see the 
laws faithfully executed, implies a power to forbid their execution, is 
a novel construction of the constitution, and entirely inadmissible.'' 
\4\ Examining this case and others like it, a number of respected 
constitutional scholars have concluded that the President must enforce 
all Acts of Congress, even where he has questions about their 
constitutionality. Professor Edward Corwin has written, ``Once a 
statute has been duly enacted, whether over his protest or with his 
approval, [the President] must promote its enforcement.'' \5\ Professor 
Raoul Berger has similarly concluded that ``It is a startling notion * 
* * [that a President] may refuse to execute a law on the ground that 
it is unconstitutional. To wring from a duty faithfully to execute the 
laws a power to defy them would appear to be a feat of splendid 
illogic.'' \6\ Professor Westel W. Willoughby has warned that: ``If, 
upon his own judgment, [the President] refuses to execute a law and 
thus nullifies it, he is arrogating to himself controlling legislative 
foundations, and laws have but an advisory, recommendatory character, 
depending for power upon the good-will of the President.'' \7\ And 
Professor Eugene Gressman has concluded: ``In our constitutional system 
of govern, such a refusal by the Executive to `take care that the Laws 
be faithfully executed' cannot and must not be tolerated.'' \8\ One 
need not go as far as these respected scholars have to conclude that, 
at the very least, the Executive should defend Acts of Congress where 
reasonable arguments can be made on their behalf.\9\ This is 
particularly the case where, if the Executive does not present an 
argument, the effect will be to deny the courts the opportunity to 
review the issue.\10\
---------------------------------------------------------------------------
    \3\ U.S. Const. art. II, Sec. 3.
    \4\ See Kendall v. United States, 37 U.S. 524, 612-613 (1838).
    \5\ E. Corwin, The President: Office and Powers 79 (3d ed. 1948).
    \6\ Raoul Berger, Executive Privilege: A Constitutional Myth 306 
(1974).
    \7\ 3 Westel W. Willoughby, The Constitutional Law of the United 
States 1503 (2d ed. 1929).
    \8\ Constitutionality of GAO's Bid Protest Function: Hearings 
before a Subcomm. of the House Comm. on Gov't Operations, 99th Cong., 
1st Sess. 46 (1985).
    \9\ As illustrations of this principle, the Administration (quite 
properly) recently defended the Communications Decency Act despite the 
fact that there was quite a strong argument that it was difficult to 
square with controlling Supreme Court First Amendment cases. And it 
also (quite properly) had no problem defending the Religious Freedom 
Restoration Act, which was in many ways a direct challenge to a recent 
Supreme Court constitutional holding concerning the scope of the Free 
Exercise Clause in Employment Div. v. Smith, 494 US 872 (1990).
    \10\ See Memorandum for the Counsel to the President Abner Mikva 
from Asst. Attorney General Walter Dellinger, Nov. 2, 1994 (``the 
President may base his decision to comply * * * [with a questioned 
statute] in part on a desire to afford the Supreme Court an opportunity 
to review the constitutional judgment of the legislative branch).
---------------------------------------------------------------------------
    Because the well-known policy of the Justice Department is to 
present such ``reasonable'' arguments, the Department's failure to join 
me in supporting the law before the Fourth Circuit was a statement that 
my arguments were not simply wrong, but did not even rise to the level 
of a ``reasonable'' legal argument. I nonetheless laid before the court 
a defense of the statute that is, in my judgment, not simply reasonable 
but compelling. On February 8, 1999, the U.S. Court of Appeals for the 
Fourth Circuit entirely agreed, holding that the statute was 
constitutional. In its opinion in United States v. Dickerson,\11\ the 
court concluded that it had ``little difficulty'' in concluding that 
``section 3501, enacted at the invitation of the Supreme Court and 
pursuant to Congress's unquestioned power to establish the rules of 
procedure and evidence in federal courts, is constitutional.'' \12\ The 
court also spoke a few pointed words about the Department's maneuvering 
in this case. It said that the action of political appointees 
``prohibit[ing] the U.S. Attorney's Office from arguing that 
Dickerson's confession is admissible under the mandate of Sec. 3501'' 
was ``elevating politics over law. * * *'' \13\
---------------------------------------------------------------------------
    \11\ 166 F.3d 667 (4th Cir. 1999).
    \12\ Id. at 672.
    \13\ Id.
---------------------------------------------------------------------------
    The Fourth Circuit's conclusions were entirely accurate. The 
Department's proffered reasons for failing to find a reasonable 
argument to defend the statute are implausible. Unfortunately, it is 
hard to escape the conclusion that the Department's current view is not 
a serious legal position. It is, instead, as the Fourth Circuit 
suggested, a politically inspired concoction. It appears to be 
motivated not by fear that, if the statute came before the Supreme 
Court, the Department would ``lose'' because the Court would strike it 
down. Rather, it is motivated by the Department's fear that the Supreme 
Court might, like the Fourth Circuit and other courts, uphold the 
statute and the Department would ``win.'' This kind of political 
decision is, of course, precisely that which our constitutional scheme 
of separated powers prohibits to the Department. In my testimony today 
I want to support this position by rebutting in some detail each of the 
three reasons that the Department has, at various times, proffered for 
failing to defend Sec. 3501.
    First, the Department has claimed that it is simply following the 
policies of its predecessors. When asked about the Department's failure 
to enforce the statute at a press conference a few days after Dickerson 
was handed down, the Attorney General asserted that: ``In this 
administration and in other administrations preceding it, both parties 
have reached the same conclusion [that the statute could not be 
defended.]'' \14\ This is simply untrue. In fact, the long-standing 
Department of Justice policy was to defend the statute, a policy that 
had even produced a favorable appellate decision in the Tenth Circuit. 
In adopting its position, the current Administration is not only 
overriding the view of its career prosecutors but also those of a 
number of predecessors in the Department. Part I of my testimony 
recounts the Department's long-standing position that the statute was 
constitutional, a position that the political appointees in the Clinton 
Administration reversed apparently over the objections of career 
prosecutors.
---------------------------------------------------------------------------
    \14\ Press Conference of Attorney General Janet Reno, Feb. 11, 
1999, the press conference transcript is available in www.usdoj.gov/ag/
speeches/1999/feb1199.htm.
    The Department of Justice has reportedly declined an opportunity to 
appear at today's hearing, apparently on grounds that Sec. 3501 is 
currently involved in litigation. It is curious that the Department 
will not appear before this subcommittee duly charged with oversight of 
the Department's operations, particularly where the Department could 
confine its remarks to historical issues and indeed has, as the 
Attorney General's remarks indicate, discussed this very same subject 
with representatives of the mass media.
---------------------------------------------------------------------------
    Second, the Department has stated directly in its briefs to the 
Fourth Circuit and other lower federal courts that the statute is 
unconstitutional because of the constitutional ``foundations'' of 
Miranda.\15\ The Fourth Circuit has flatly disagreed with this 
position, as has the Tenth Circuit, the District Court of Utah, and a 
number of respected legal observers. Part II explains why the Fourth 
Circuit and the other courts that have closely examined the issue are 
correct in concluding that Sec. 3501 is constitutional. Two arguments 
strongly support this result. First, as explained in Part II.A,the 
Supreme Court has repeatedly held that the Miranda rights are not 
constitutional rights. Accordingly, Congress has the power to modify 
their application in federal courts. Second, as explained in Part 
II.B., the Supreme Court in the Miranda decision itself invited 
``Congress and the States to continue their laudable search for 
increasingly effective ways, of protecting the rights of the individual 
while promoting efficient enforcement of our criminal laws'' \16\ by 
drafting alternatives to Miranda. Section 3501, considered not by 
itself but as part of a full package of measures covering questioning 
by federal police officers, is such a reasonable alternative.
---------------------------------------------------------------------------
    \15\ See, e.g., Br. for the United States in Support of Partial 
Rehearing En Banc at, United States v. Dickerson, No. 97-4750 (4th Cir. 
Mar. 8, 1999) (``on the current state of the Supreme Court's Miranda 
jurisprudence, taken as a whole, this Court may not conclude that the 
Miranda rules lack a constitutional foundation'').
    \16\ 384 U.S. at 467 (emphasis added).
---------------------------------------------------------------------------
    Third, at various times, the Department of Justice has suggested 
that Sec. 3501 makes no difference to public safety because federal 
prosecutors can prevail even laboring under the Miranda exclusionary 
rule.\17\ This argument is wrong, as even in the cases I have been 
personally involved with, dangerous criminals have either gone free 
because of the failure to apply Sec. 3501 or, as in Dickerson, have 
probably been kept from going free by my defense of the statute. More 
generally, the Miranda procedural requirements seriously harm public 
safety, as extensive empirical evidence demonstrates. Part III reviews 
this evidence, explains why the Miranda exclusionary rule exacts a 
heavy toll on the ability of this country to prosecute dangerous 
crimes, a toll that would be reduced if Sec. 3501 were enforced by the 
Department.
---------------------------------------------------------------------------
    \17\ Confirmation of Deputy Attorney General Nominee Eric Holder: 
Hearings before the Sen. Comm. on the Judiciary, 105th Cong., 1st Sess. 
124 (June 13, 1997) (written response of Deputy Attorney General 
Designate Holder to question from Senator Thurmond) (``My experience 
has been that we have not had significant difficulty in getting the 
federal district court to admit voluntary confessions under Miranda and 
its progeny'').
---------------------------------------------------------------------------
    Before turning to each of these issues, a bit of my background in 
this area may be in order. I am currently a Professor of Law at the 
University of Utah College of Law, where I teach criminal procedure 
among other subjects. From 1988 to 1991, I served as an Assistant 
United States Attorney in the Eastern District of Virginia, where I was 
responsible for prosecuting federal criminal cases. From 1986 to 1988, 
I served as an Associate Deputy Attorney General at the United States 
Department of Justice, handling various matters relating to criminal 
justice, including matters relating to Miranda. I have also served as a 
law clerk to then-Judge Antonin Scalia and Chief Justice Warren E. 
Burger, writing memoranda on numerous criminal cases. For the last 
seven years, I have been involved in litigation on behalf of Sec. 3501 
in various courts around the country. I have published articles 
regarding the Miranda decision in a number of law journals, including 
the Stanford Law Review, the UCLA Law Review, and the Journal of 
Criminal Law and Criminology. I have also delivered presentations on 
Miranda issues at a number of different fora, including the American 
Bar Association's Annual Convention and a conference held on Miranda's 
thirtieth anniversary at Northwestern Law School. I have represented 
various clients, including the Washington Legal Foundation and several 
United States Senators, who have asked for my assistance to have 
Sec. 3501 defended in the courts.

   I. Department of Justice Policy Has Long Been To Enforce Sec. 3501

    Attorney General Reno has recently claimed that long-standing 
Department of Justice policy has been against enforcing 3501 because 
doubts about the constitutionality of the statute. The Attorney General 
stated at a press conference a few days after Dickerson was handed down 
that, ``In this administration and in other administrations preceding 
it, both parties have reached the same conclusion.'' \18\ With all due 
respect to the Attorney General, this claim is demonstrably false. This 
is not just my view, but the view of others who have carefully studied 
the issue. For example, respected veteran Supreme Court reporter Lyle 
Denniston recently wrote a lengthy article that reached the conclusion 
that ``Reno's perception * * * that this has always been the federal 
government's view is mistaken.'' \19\
---------------------------------------------------------------------------
    \18\ Press Conference of Attorney General Janet Reno, Feb. 11, 
1999, available in www.usdoj.gov/ag/speeches/1999/feb1199.htm.
    \19\ Lyle Denniston, The Right to Remain Silent? Law Professor, 
Justice of Supreme Court Aim to Replace Miranda, Baltimore Sun, Feb. 
28, 1999, at C1, C5.
---------------------------------------------------------------------------
    The view that the Department has consistently declined to defend 
the statute is so plainly false that from 1993 to 1997 the even 
political appointees of the current Administration specifically 
recognized the defense of the statute. When asked questions about this 
statute in various hearings, far from saying that they would continue 
the (nonexistent) policy of past Administrations forbidding the use of 
the statute because of their conviction that it was unconstitutional or 
could not be argued in the lower courts, Attorney General Reno, 
Solicitor General Drew Days, and Deputy Attorney General-designate 
Holder all said that the Department had no policy against its use and 
that they were prepared to use it ``in an appropriate case.'' \20\
---------------------------------------------------------------------------
    \20\ See infra note 97 and accompanying text.
---------------------------------------------------------------------------
    The fact of the matter is that with only one brief exception, no 
Administration other than the current one has ever expressed the view 
that the statute is unconstitutional or issued a directive to U.S. 
Attorneys Offices or anyone else telling them not to use the statute. 
To the contrary, with the exception of the last few months of the 
Johnson Administration, past Administrations either tried to encourage 
use of the statute or, at the very least, had no policy of discouraging 
its use. A brief history of the statute and its enforcement will 
demonstrate that the posture of the current Justice Department is at 
odds with that of its predecessors.\21\
---------------------------------------------------------------------------
    \21\ For a good history of the statute through 1986, see U.S. Dep't 
of Justice, Office of Legal Policy, Report to the Attorney General: The 
Law of Pre-Trial Interrogation 64-74 (1986) (hereinafter OLP Report), 
reprinted in 22 Mich. J.L. Ref. 512-21 (1989).
---------------------------------------------------------------------------
                a. miranda and the adoption of Sec. 3501
    In 1963, Ernesto Miranda, 23, who had dropped out of school in the 
ninth grade and had a prior arrest record, was picked up by Phoenix 
police as a suspect in the kidnapping and rape of an 18-year-old girl. 
After two hours of questioning, Miranda confessed orally to the crime. 
He then wrote out and signed a brief statement admitting and describing 
the rape. It contained a typed paragraph stating that his confession 
was made voluntarily without threats or promises of immunity and that 
he had full knowledge of his rights and understood that the statement 
could be used against him. At Miranda's trial, the confession was 
admitted despite his lawyer's objections, and Miranda was convicted and 
sentenced to 20 years in prison.\22\
---------------------------------------------------------------------------
    \22\ For an excellent overview of the case, see George C. Thomas 
III, Miranda: The Crime, the Man, and the Law of Confessions, The 
Miranda Debate: Law, Justice and Policing (Richard Leo and George C. 
Thomas III eds. 1998).
---------------------------------------------------------------------------
    Miranda's appeal eventually reached the U.S. Supreme Court. Miranda 
v. Arizona,\23\ the resulting landmark 5 to 4 decision handed down June 
13, 1966, established procedural requirements governing the questioning 
by law enforcement officials of suspects in custody. The Court then 
overturned Miranda's conviction because police had not followed the new 
rules. The Court specified four warnings that police must deliver to 
criminal suspects about to be questioned. Unless the warnings were 
read, nothing an arrested suspect might say afterwards during 
questioning, even in the anguish of conscience, could be used against 
him in court.
---------------------------------------------------------------------------
    \23\ Miranda v. Arizona, 384 U.S. 435 (1966).
---------------------------------------------------------------------------
    The changes wrought by Miranda can be best understood by comparing 
the new rules to those in place before the decision. Before June 13, 
1966, police questioning of suspects in custody was covered by the 
``voluntariness'' doctrine.\24\ Under the Fifth and Fourteenth 
Amendments to the Constitution, courts admitted a defendant's 
confession into evidence if it was voluntary, but they excluded any 
involuntary confession. In making the voluntariness determination, 
courts considered a host of factors. For example, if police officers or 
prosecution investigators used physical force or the threat of force, 
courts deemed the resulting confession involuntary. Courts also 
considered such factors as length of interrogation and types of 
questions asked in making the voluntariness determination.
---------------------------------------------------------------------------
    \24\ See generally Joseph D. Grano, Confessions, Truth and the Law 
59-86 (1993).
---------------------------------------------------------------------------
    Miranda radically changed these rules, adding a stringent warning-
and-waiver requirement. Under this approach, a confession police 
obtained from a suspect in custody would not be admissible in court 
unless that suspect had been read his or her rights. The rights 
specified are familiar to anyone who has ever watched a police show on 
television:

        You have the right to remain silent.
        Anything you say can be used against you in a court of law.
        You have the right to talk to a lawyer and have him present 
        with you while you are being questioned.
        If you cannot afford to hire a lawyer, one will be appointed to 
        represent you before you answer any questions.

    While the Miranda ``warnings'' are the most famous part of the 
decision, perhaps even more important are additional requirements that 
the Court imposed. After reading a suspect his rights, an officer must 
ask whether the suspect agrees to ``waive'' those rights. If the 
suspect refuses to waive--that is, declines to give his permission to 
be questioned--the police must stop questioning. At any time during an 
interrogation, a suspect can halt the process by retracting his waiver 
or asking for a lawyer. From that point on, the police cannot even 
suggest that the suspect reconsider. All of these new rights were 
enforced by an exclusionary rule: the suppression of the suspect's 
confession if police deviated from the requirements.\25\ The Court, 
however, made clear that its approach was not the only approach to the 
issue. ``* * * [T]he Constitution does not require any specific code of 
procedure for protecting the privilege against self-incrimination 
during custodial interrogation. Congress and the States are free,'' the 
majority held, ``to develop their own safeguards for the privilege, so 
long as they are fully as effective as those described above. * * *'' 
\26\
---------------------------------------------------------------------------
    \25\ See Miranda, 384 U.S. at 478-79.
    \26\ Id. at 490.
---------------------------------------------------------------------------
    The Court's ruling, its most famous ever in the criminal law 
area,\27\ ignited a firestorm of controversy. Justice Harlan warned in 
his dissenting opinion that ``[v]iewed as a choice based on pure 
policy, these new rules prove to be a highly debatable, if not one-
sided, appraisal of the competing interests, imposed over widespread 
objection, at the very time when judicial restraint is most called for 
by the circumstances.'' \28\ Justice White concluded that ``the Court's 
holding today is neither compelled nor even strongly suggested by the 
language of the Fifth Amendment, is at odds with American and English 
legal history, and involves a departure from a long line of precedent. 
* * *'' \29\ He also likewise predicted that ``[i]n some unknown number 
of cases the Court's rule will return a killer, a rapist or other 
criminal to the streets and to the environment which produced him, to 
repeat his crime whenever it pleases him.'' \30\ Critics outside the 
Court also immediately predicted that the requirements would put 
``handcuffs on the police'' \31\ and prevent the prosecution of 
countless dangerous criminals.\32\
---------------------------------------------------------------------------
    \27\ A 1974 ABA survey of lawyers, judges, and law professors found 
that Miranda was the third most notable decision of all time, trailing 
only Marbury v. Madison and United States v. Nixon and leading Brown v. 
Board of Education. See Jethro K. Lieberman, Milestones! 200 Years of 
American Law: Milestones in Our Legal History at vii (1976).
    \28\ Miranda, 384 U.S. at 505 (Harlan, J., dissenting).
    \29\ Id. at 531 (White, J., dissenting).
    \30\ Id. at 542 (White, J., dissenting).
    \31\ See More Criminals to Go Free? Effect of High Court's Ruling, 
U.S. News & World Rep., June 27, 1966, at 32, 33 (quoting Los Angeles 
Mayor Samuel W. Yorty).
    \32\ See id. (including a statement by Fred E. Inbau, Professor of 
Criminal Law at Northwestern University, that law enforcement officials 
would choose not to prosecute a number of cases because of Miranda).
---------------------------------------------------------------------------
    The Senate Judiciary Committee's Subcommittee on Criminal Laws and 
Procedures held hearings on these alarming concerns in 1967.\33\ During 
the hearings, a number of the Senators and testifying witnesses 
denounced the Miranda exclusionary rule. For example, Senator Thurmond 
explained, ``I am convinced that voluntary confessions must be admitted 
* * * so long as the confessions are voluntary, so long as they 
constitute the truth. I have frequently heard it said that more men are 
convicted out of their own mouths than are convicted out of the mouths 
of other people, and that have been my experience in practicing law.'' 
\34\ A number of law enforcement witnesses talked about the 
difficulties that the Miranda rules were causing in their efforts to 
apprehend criminals.\35\ Ultimately the Committee drafted the 
legislation which became Sec. 3501. The rationale for the reform was 
stated by the Senate Judiciary Committee in its report:
---------------------------------------------------------------------------
    \33\ See Controlling Crime Through More Effective Law Enforcement: 
Hearings Before the Subcom. On Criminal Laws and procedures of the Sen. 
Comm. on the Judiciary, 90th Cong., 1st Sess. (1967) (hereinafter 
Controlling Crime Hearings).
    \34\ Id. at 13.
    \35\ See, e.g., id. at 326 (statement of Quinn Tamm, Int'l Assoc. 
of Chiefs of Police).

          [C]rime will not be effectively abated so long as criminals 
        who have voluntarily confessed their crimes are released on 
        mere technicalities. The traditional right of the people to 
        have their prosecuting attorneys place in evidence before 
        juries the voluntary confessions and incriminating statements 
        made by defendants simply must be restored. * * * The committee 
        is convinced * * * that the rigid and inflexible requirements 
        of the majority opinion in the Miranda case are unreasonable, 
        unrealistic, and extremely harmful to law enforcement. * * * 
        [Miranda] was an abrupt departure from precedent extending back 
        at least to the earliest days of the Republic. Up to the time 
        of the rendition of this 5-to-4 opinion, the ``totality of 
        circumstances'' had been the test in our State and Federal 
        courts in determining the admissibility of incriminating 
        statements. * * * The committee is of the view that the 
        proposed legislation * * * would be an effective way of 
        protecting the rights of the individual and would promote 
        efficient enforcement of our criminal laws.\36\
---------------------------------------------------------------------------
    \36\ S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S. 
Code Cong. & Admin. News. 2112, 2123-38.

The anti-Miranda legislation was included as Part of Title II of the 
Omnibus Crime Control and Safe Streets Act, a broad criminal justice 
reform bill that also included not only a provision on Miranda but also 
legislation divesting the federal courts of jurisdiction to review 
state court decisions admitting confessions. This last part of the 
package was eliminated, but other legislation was left in to replace 
Miranda as well as to overrule the McNabb-Mallory line of cases 
excluding confessions taken more than six hours after a suspect was 
taken into custody \37\ and United States v. Wade case creating a right 
to counsel during police line-ups.\38\ After debates in the House and 
the Senate, the legislation was passed by a strong bipartisan majority. 
(The measure was, for example, co-sponsored by Senators Strom Thurmond, 
Robert Byrd, and many other members of both parties.) \39\
---------------------------------------------------------------------------
    \37\ See 18 U.S.C. Sec. 3501(c).
    \38\ See 18 U.S.C. Sec. 3502.
    \39\ See OLP Report, supra note 21, at 67.

    The statute passed by Congress--known as Sec. 3501--provides in 
---------------------------------------------------------------------------
pertinent part:

        (a) In any criminal prosecution brought by the United States or 
        by the District of Columbia, a confession, as defined in 
        subsection (e) hereof, shall be admissible in evidence if it is 
        voluntarily given. Before such confession is received in 
        evidence, the trial judge shall, out of the presence of the 
        jury, determine any issue as to voluntariness. If the trial 
        judge determines that the confession was voluntarily made it 
        shall be admitted in evidence and the trial judge shall permit 
        the jury to hear relevant evidence on the issue of 
        voluntariness and shall instruct the jury to give such weight 
        to the confession as the jury feels it deserves under all the 
        circumstances.
          (b) 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. * * 
        *
        (e) As used in this section, the term ``confession'' means any 
        confession of guilt of any criminal offense or any self-
        incriminating statement made or given orally or in writing.

The obvious import of the provision was to restore, at least in some 
fashion,\40\ a voluntariness determination as the basis for admitting 
confessions in federal courts.
---------------------------------------------------------------------------
    \40\ See infra note 238 (explaining how Sec. 3501 extends beyond 
the pre-Miranda voluntariness test).
---------------------------------------------------------------------------
  b. the implementation of Sec. 3501 in the early years: the road to 
                           success in crocker
    When the Omnibus Crime Control and Safe Streets Act of 1968 reached 
President Johnson's desk, he signed the law \41\ but put a gloss on the 
provisions of Sec. 3501 to essentially incorporate Miranda. His signing 
statement said:
---------------------------------------------------------------------------
    \41\ Pub. L. No. 90-351, 82 Stat. 197 (codified in various sections 
of titles 5, 18, 28, 42 and 47 U.S.C.).

        The provisions of [Sec. 3501], vague and ambiguous as they are, 
        can, I am advised by the Attorney General [Ramsey Clark], be 
        interpreted in harmony with the Constitution and Federal 
        practices in this field will continue to conform to the 
        Constitution. * * * I have asked the Attorney General and the 
        Director of the Federal Bureau of Investigation to assure that 
        these policies [i.e., giving Miranda warnings] will 
        continue.\42\
---------------------------------------------------------------------------
    \42\ 4 Weekly Compilation of Presidential Documents 983 (June 24, 
1968).

The Department of Justice would later characterize this action as 
``disingenuous[].'' \43\ and it is hard to disagree. The proposed 
legislation was not in any way ambiguous, as everyone involved in its 
drafting was well aware of both its intent and its basic effect.\44\ In 
any event, the result of the President's statements was that law was 
ignored in the first few months after it was signed into the law. 
Attorney General Clark seems to have instructed U.S. Attorneys around 
the country to not rely on the statute in their arguments before courts 
around the country.\45\
---------------------------------------------------------------------------
    \43\ OLP Report, supra note 21, at 72.
    \44\ See Controlling Crime Hearings, supra note 33, at 72 (letter 
of Attorney General Ramsey Clark noting conflict between legislation 
and Miranda; bill would be constitutional if Miranda's requirements 
were ``read into'' it or added as a ``constitutional gloss,'' but if 
this were done it would be superfluous).
    \45\ See N.Y. Times, July 28, 1969, at 22.
---------------------------------------------------------------------------
    This position proved to be very short-lived. During the 1968 
Presidential campaign, then-candidate Richard Nixon attacked the Warren 
Court's criminal procedure jurisprudence in general and Miranda in 
particular. Nixon explained that Miranda ``had the effect of seriously 
ham stringing [sic] the peace forces in our society and strengthening 
the criminal forces.'' \46\
---------------------------------------------------------------------------
    \46\ 114 Cong. Rec. 12,936, 12,937 (1968) (Mr. Mundt reading into 
the record Richard M. Nixon, Toward Freedom from Fear (1968)); see also 
Liva Baker, Miranda: Crime, Law and Politics 248 (1983) (citing Nixon 
campaign speeches attacking Miranda).
---------------------------------------------------------------------------
    After President Richard Nixon was elected, his new Attorney General 
John Mitchell quickly issued new guidance to federal prosecutors and 
agents around the country. They were directed to continue to follow the 
rules prescribed by Miranda, but to use Sec. 3501 to help obtain the 
admission of confessions. A memorandum circulated by the Will Wilson, 
Assistant Attorney General of the Criminal, set forth the Department's 
position that Sec. 3501 could be applied:

        Congress has reasonably directed that an inflexible 
        exclusionary rule be applied only where the constitutional 
        privilege itself has been violated, not where a protective 
        safeguard system suggested by the Court has been violated in 
        particular case without affecting the privilege itself. The 
        determination of Congress that an inflexible exclusionary rule 
        is unnecessary is within its constitutional power.\47\
---------------------------------------------------------------------------
    \47\ Memorandum from Will Wilson, Asst. A.G., Criminal Division, to 
United States Attorneys (June 11, 1969), reprinted in 115 Cong. Rec. 
23236 (Aug. 11, 1969).

In explaining this policy, Attorney General Mitchell testified before 
the House Select Committee on Crime that ``It is our feeling * * * that 
the Congress has provided this legislation [Sec. 3501], and, until such 
time as we are advised by the courts that it does not meet 
constitutional standards, we should use it.'' \48\
---------------------------------------------------------------------------
    \48\ The Improvement and Reform of Law Enforcement and Criminal 
Justice in the United States: Hearings Before the House Select Comm. on 
Crime, 91st Cong., 1st Sess. 250 (1969) (statement of Attorney General 
John N. Mitchell).
---------------------------------------------------------------------------
    Following this approach, federal prosecutors raised Sec. 3501 in 
federal courts around the country in an effort to secure a favorable 
ruling on it. This litigation effort produced a number of decisions in 
which courts referenced the statute, but found it unnecessary to reach 
the question of whether it actually replaced the Miranda procedures, 
usually because the federal agents had followed Miranda. Typically of 
these decisions is United States v. Vigo, in which the Second Circuit 
concluded: ``Inasmuch as we hold defendant Vigo's statements voluntary 
and admissible under the requirements of Miranda v. Arizona, * * * [i]t 
is therefore unnecessary to reach the question of the application and 
constitutionality of Sec. 3501.'' \49\ Other similar decisions can be 
found in other courts.\50\
---------------------------------------------------------------------------
    \49\ 487 F.2d 295, 299 (2d Cir. 1973).
    \50\ See, e.g., United States v. Marrero, 450 F.2d 373, 379 (2d 
Cir. 1971) (Friendly, J., concurring); Ailsworth v. United States, 448 
F.2d 439, 441 (9th Cir. 1971); United States v. Lamia, 429 F.3d 373, 
377 (2d Cir. 1970). See generally OLP Report, supra note 21, at 73; 
Daniel Gandara, Admissibility of Confessions in Federal Prosecutions: 
Implementation of Section 3501 by Law Enforcement Officials and the 
Courts, 63 Geo. L.J. 305 (1974).
---------------------------------------------------------------------------
    The Justice Department's litigation efforts did, however, 
successfully produce at least one decision from a federal court of 
appeals upholding Sec. 3501. In United States v. Crocker,\51\ the Tenth 
Circuit affirmed a district court's decision to apply the provisions of 
Sec. 3501 rather than Miranda. The Tenth Circuit concluded that the 
Supreme Court's decision in Michigan v. Tucker \52\ ``although not 
involving the provisions of section 3501, did, in effect, adopt and 
uphold the constitutionality of the provisions thereof.'' \53\ The 
Tenth Circuit explained that Tucker authorized the use of a statement 
taken outside of Miranda to impeach a defendant's testimony, relying on 
language in Miranda that the ``suggested'' safeguards were not intended 
to ``create a constitutional straitjacket.'' \54\ The Tenth Circuit 
concluded by specifically stating its holding: ``We thus hold that the 
trial court did not err in applying the guidelines of section 3501 in 
determining the issue of the voluntariness of Crocker's confession.'' 
\55\
---------------------------------------------------------------------------
    \51\ 510 F.2d 1129 (10th Cir. 1975).
    \52\ 417 U.S. 433 (1974).
    \53\ 510 F.2d at 1137.
    \54\ 510 F.2d at 1137 (quoting Tucker, 417 U.S. at 449).
    \55\ 510 F.2d at 1138. The Court also held, in a single sentence, 
that Crocker's confession had been obtained in compliance with Miranda.
---------------------------------------------------------------------------
   c. the implementation of Sec. 3501 from 1975 to 1992: the search 
                         for the ``test case''
    After the favorable decision in Crocker, the Department of Justice 
appears to have shifted, almost by accident, into a posture of 
litigating Sec. 3501 only in selected ``test cases'' where the argument 
could be most successfully advanced. Immediately following the Tenth 
Circuit's favorable decision in Crocker in 1975, Sec. 3501 appears to 
have slipped the collective consciousness of federal prosecutors. The 
argument that the statute supercedes Miranda does not appear to have 
been pressed in the courts from about 1975 to 1985. This was not the 
result of any new policy from the Department of Justice. To the 
contrary, it appears that the directive issued in 1969 remained in 
effect through the Ford, Carter, Reagan, and Bush Administrations. The 
directive was clearly in effect as of 1974 \56\ and, writing later in 
1986, an exhaustive Department of Justice report could not find any 
change.\57\
---------------------------------------------------------------------------
    \56\ See Gandara, supra note 50, at 312 (letter from Dept. of 
Justice dated May 15, 1974, stating the policies set forth in the 1969 
memorandum ``are still considered current and applicable'').
    \57\ See OLP Report, supra note 21, at 73-74.
---------------------------------------------------------------------------
    The 1986 Report was prepared by the Department's Office of Legal 
Policy, then headed by Assistant Attorney General Stephen Markman. In 
an extended and scholarly analysis, the Report concluded that the 
statute was constitutional and that the Supreme Court would so find:

        Miranda should no longer be regarded as controlling [in federal 
        cases] because a statute was enacted in 1968, 18 U.S.C. 
        Sec. 3501. * * * Since. the Supreme Court now holds that 
        Miranda's rules are merely prophylactic, and that the fifth 
        amendment is not violated by the admission of a defendant's 
        voluntary statements despite non-compliance with Miranda, a 
        decision by the Court invalidating this statute would require 
        some extraordinarily imaginative legal theorizing of an 
        unpredictable legal nature.\58\
---------------------------------------------------------------------------
    \58\ Id. at 103.

Following on the heels of this comprehensive study, the Attorney 
General approved this view of the constitutionality of the statute and 
instructed the litigating divisions to seek out the best case in which 
to argue that the statute replaced Miranda. From 1986 to 1988, I served 
as an Associate Deputy Attorney General in the Department of Justice. 
One of my specifically assigned responsibilities was to locate a good 
``test case'' for the argument. The theory was that, rather than test 
Sec. 3501 in a case chosen at random, it made sense to identify a case 
or cases in which the facts made a favorable ruling for the statute 
more likely. Department lawyers did identify several cases in which it 
appeared that a good Sec. 3501 argument could be made. This resulted in 
the filing of at least one brief seeking to invoke the statute. In 
United States v. Goudreau,\59\ the Civil Rights Division argued (in 
police brutality prosecution) that ``under the terms of 18 U.S.C. 3501, 
the defendant's statement is admissible evidence regardless of whether 
Miranda warnings were required, because the statement was voluntarily 
made (citing United States v. Crocker).'' \60\ This argument was 
specifically approved both by the Office of the Solicitor General and 
the Assistant Attorney General for the Civil Rights Division. In that 
case, the Eighth Circuit ultimately issued an opinion that did not cite 
Sec. 3501 and that found that federal agents had complied with the 
requirements of Miranda.\61\
---------------------------------------------------------------------------
    \59\ No. 87-5403ND (8th Cir. 1987).
    \60\ Brief for the United States, United States v. Goudreau, No. 
87-5403ND (8th Cir. 1987).
    \61\ 854 F.2d 1097 (8th Cir. 1987).
---------------------------------------------------------------------------
    Again during the Bush Administration, the ``test case'' approach of 
litigating Sec. 3501 appears to have been followed whenever prosecutors 
considers Sec. 3501. Some federal prosecutors presented the Sec. 3501 
argument in cases in which the facts appeared to suggest a favorable 
ruling.\62\ No federal courts appear to have ruled on the merits of the 
claim during this time.
---------------------------------------------------------------------------
    \62\ See Department of Justice Enforcement of Section 3501: 
Hearings before the Sen. Subcomm. on Criminal Justice Oversight of the 
Sen. Judiciary Comm., 106th Cong., 1st Sess. (May 13, 1999) (testimony 
of Judge Stephen Markman).
---------------------------------------------------------------------------
     d. undermining the statute: the clinton department of justice 
                           from 1993 to date
    From the beginning of the Nixon Administration in 1969 through the 
end of the Bush Administration in 1993, the consistent view of the 
Department of Justice, when asked, was that Sec. 3501 was 
constitutional. The Department's policy, however, began to change in 
subtle and mysterious ways with the election of President Clinton and 
the appointment of his political appointees to policy making decisions 
in the Department.

         1. United States v. Cheely and Davis v. United States

    The first evidence of that the Department might have a new posture 
on the statute surfaced in the dubious handling of the defense of the 
Sec. 3501 before the Ninth Circuit in Cheely v. United States.\63\ The 
case involved a brutal crime designed to terrorize prosecution 
witnesses. Defendant Cheely and others were convicted of murder. They 
then arranged for a mail bomb to be sent to the post office box of 
George Kerr, a key witness against them in the earlier trial. Kerr's 
parents, who were collecting his mail, opened the box containing the 
mail bomb. David Kerr, George's father, was killed. Michelle Kerr, 
George's mother, was seriously injured when hundreds of pellets, glass, 
and other projectiles entered her body. She miraculously survived after 
spending five weeks in a coma. She will never fully recover.
---------------------------------------------------------------------------
    \63\ 21 F.3d 914 (9th Cir. 1994), amended ---- F.3d ---- (1994).
---------------------------------------------------------------------------
    The investigation of this case by the postal inspectors obtained 
incriminating statements from Cheely. The inspectors approached Cheely 
to ask him about the crime. Cheely briefly indicated that he did not 
want to sign a waiver of rights form, but said that he appreciated the 
postal inspectors talking to him. A far ranging and indisputably 
voluntary conversation ensued, as the district court found, the result 
of which was incriminating statements from Cheely. The district court, 
however, failed to apply Sec. 3501 and instead suppressed the 
statements under Miranda.
    Because of the importance of the confession to the circumstantial 
case against Cheely, the government consider appealing the district 
court's ruling. The case would also, for obvious reasons, be a good 
``test case'' for Sec. 3501. A memo from an Assistant to the Solicitor 
General, written on March 12, 1993 early in the Clinton Administration 
before there were any confirmed political appointees in the Department 
of Justice, recommended authorizing an appeal raising Sec. 3501 as one 
of four grounds, a recommendation that was apparently accepted without 
any issue on the question. The memo states: ``As I understand it, we 
have made arguments based on Section 3501 to courts of appeals in the 
past. We generally have argued that Section 3501, by incorporating the 
Miranda factors into the voluntariness analysis, rendered some 
inculpatory statements admissible even where there was a `less than 
perfect warning or a less than conclusive waiver,' as long as the 
suspect voluntarily waived his constitutional rights. * * * A Section 
3501 argument may be useful in this case, because the district court 
appears to have concluded that the defendant's statements were 
voluntary.'' \64\
---------------------------------------------------------------------------
    \64\ Solicitor General Memorandum, March 12, 1993 (citing other 
Dep't of Justice document).
---------------------------------------------------------------------------
    Apparently the career attorneys in the Department of Justice 
authorized the appeal on this basis, but before the brief could be 
finalized political appointees arrived in town. By the time the 
Department's brief was actually filed in the Ninth Circuit, it did not 
vigorously defend the propriety of obtaining those statements under 
Sec. 3501. Instead, the Department's brief in the case contains what 
might be called charitably an uninspired argument in support of the 
statute. The Department's argument on Sec. 3501, barely two double-
spaced pages long (in a brief that appears to have been well below 
applicable page limits), off-handedly mentions the statute and cites no 
authority more recent than 1975.\65\
---------------------------------------------------------------------------
    \65\ Brief of the United States at 20-22, U.S. v. Cheely, No. 92-
30504 (9th Cir.) (brief filed Mar. 30, 1993).
---------------------------------------------------------------------------
    The Sec. 3501 portion of the Department's brief appears to be so 
far below the normal standards of appellate advocacy that one wonders 
whether it was written by unsympathetic political officials rather than 
the Department's experienced career attorneys or aggressive field 
prosecutors. With this question in mind, it is informative to learn 
that the brief was, in contrast to earlier and later pleadings, not 
signed by the Department's accomplished career attorney on the matter.
    The Department's less-than-aggressive prosecution of this case 
continued following a predictable (given the briefing) adverse ruling 
on Sec. 3501 from the Ninth Circuit. The Ninth Circuit, citing Edwards 
v. Arizona \66\ (a leading 1981 Supreme Court decision that the 
Department's brief had not attempted to distinguish), concluded that 
Sec. 3501 could not ``trump'' Edwards.\67\
---------------------------------------------------------------------------
    \66\ 451 U.S. 477 (1981).
    \67\ 21 F.3d at 923. The brevity of the Ninth Circuit's ruling 
leaves it unclear precisely what the Ninth Circuit meant. Was the 
Circuit concluding that the statute was unconstitutional or that as a 
matter of statutory construction it did not cover the Edwards situation 
at hand?
---------------------------------------------------------------------------
    After the ruling, the Department did not petition for rehearing. In 
an extraordinary move, however, the Ninth Circuit sua sponte then 
entered an order directing the parties to address the question whether 
the case merited rehearing en banc.\68\ Such a court-initiated request 
is quite rare in appellate litigation and presented a great opportunity 
for the United States to reverse an adverse decision against it. 
However, the Department of Justice did not take the clue and 
surprisingly filed a memorandum opposing further review.\69\
---------------------------------------------------------------------------
    \68\ Order, U.S. v. Cheely, No. 92-30257 (9th Cir. May 25, 1994).
    \69\ Memorandum of the United States Relating to the Question 
Whether to Entertain Rehearing En Banc, U.S. v. Cheely, No. 92-30257 
(1994).
---------------------------------------------------------------------------
    The memorandum in opposition to rehearing is unusual because of its 
effort to conceal the importance of the Sec. 3501 issue. The document 
stated:

        We are also of the view that the panel's holding that Cheely's 
        statements to postal inspectors were properly suppressed by the 
        district court under Edwards v. Arizona, 451 U.S. 477 (1981) 
        does not merit rehearing en banc under the criteria set out in 
        Fed. R. App. 35. That factbound decision is neither contrary to 
        the holdings of any other panel of this Court nor of sufficient 
        systemic importance to merit plenary review.\70\
---------------------------------------------------------------------------
    \70\ Id. at 9.

    This statement is deceptive in several respects. To begin with, it 
is hard to understand how a decision regarding a federal statute 
overruling the Miranda decision in all federal cases could lack 
systemic importance.'' \71\ Moreover, it is quite curious that the 
Department did not apprise the Ninth Circuit of the potential conflicts 
the Cheely decision created, both within and without the circuit. 
Within the Ninth Circuit, several earlier decisions contain language 
that conflicts with the Cheely approach. In United States v. 
Cluchette,\72\ the court appeared to view Sec. 3501 as establishing the 
controlling factors for admissibility of confessions.\73\ In Cooper v. 
Dupnik,\74\ the dissenting judges, without direct response from the 
majority, pointed out that Sec. 3501 establishes the standards for 
admissibility of confessions in federal cases. Finally, in an early 
decision, Reinke v. United States,\75\ the court discussed Sec. 3501 
before concluding that it was technically inapplicable to the case 
before it.
---------------------------------------------------------------------------
    \71\ Indeed, just one week after the Department filed its rehearing 
memorandum, the United States Supreme Court in Davis would note the 
importance of the Sec. 3501 issue, with the majority opinion calling it 
a question of ``first impression'' and Justice Scalia's concurring 
opinion calling the Departments failure to raise the statute 
``inexcusable.'' See infra note 89 and accompanying text.
    \72\ 465 F.2d 749 (9th Cir. 1972).
    \73\ See id. at 754 (``there is no claim that the judge did not 
fully employ the criteria required by 18 U.S.C. Sec. 3501 (a) and (b). 
* * *'').
    \74\ 963 F.2d 1220, 1256-57 (9th Cir. 1992) (en banc) (Leavy, J., 
dissenting).
    \75\ 405 F.2d 228, 230 (9th Cir. 1968).
---------------------------------------------------------------------------
    Cheely also appeared to create a clear ``circuit split.'' Cheely is 
at odds with the Tenth Circuit's decision in United States v. 
Crocker,\76\ which (as noted earlier) held that Sec. 3501 
constitutionally required the admission of all voluntary statements 
regardless of compliance with Miranda rules. Other decisions also seem 
to suggest that Sec. 3501 may be important in federal cases.\77\ It is 
hard to imagine that the Department of Justice was unaware of such 
decisions. Yet it failed to disclose them to the Ninth Circuit.
---------------------------------------------------------------------------
    \76\ 510 F.2d 1129 (10th Cir. 1975).
    \77\ See, e.g., United States v. Gay, 522 F.2d 429, 431-32 (6th 
Cir. 1975); United States v. Carney, 328 F. Supp. 948, 953 n.3 (D. Del. 
1971), aff'd, 455 F.2d 925 (3d Cir. 1972).
---------------------------------------------------------------------------
    Finally, the memorandum contains inadequate discussion of a plain 
legal error in the Cheely opinion. The Cheely opinion cited only a 
single case in support of its conclusion that Sec. 3501 did not 
``trump'' the Miranda rules: Desire v. Attorney General of 
California.\78\ Desire does not cite Sec. 3501; nor could it have any 
possible bearing on Sec. 3501, because it arises from a state 
prosecution to which Sec. 3501 has absolutely no application. The 
memorandum does not make this obvious point. In view of these plainly 
deficient legal arguments, it is unsurprising that the signature of the 
Department's career prosecutor does not appear on this memorandum as 
well.
---------------------------------------------------------------------------
    \78\ 969 F.2d 802, 805 (9th Cir. 1992).
---------------------------------------------------------------------------
    This was not the end of the Department's efforts to dodge the 
question of Sec. 3501. Shortly after the Department filed its 
memorandum on rehearing, the United States Supreme Court handed down 
its decision in Davis v. United States. It is here necessary, to keep 
matters in chronological order, to shift from the Ninth Circuit to the 
United States Supreme Court. There, too, the Clinton Justice Department 
appeared to be undermining the statute.
    In March 1994, a Justice Department attorney appeared before the 
United States Supreme Court in Davis v. United States,\79\ a federal 
court martial case involving Davis' attempt to suppress an 
incriminating statement made after an ambiguous request for counsel. 
There was no claim that Davis' statement was involuntary, only that the 
``prophylactic'' rules of Miranda somehow required the statement 
implicating Davis in a murder be suppressed.
---------------------------------------------------------------------------
    \79\ 512 U.S. 452 (1994).
---------------------------------------------------------------------------
    The Washington Legal Foundation, represented by Paul Kamenar and 
me, filed an amicus brief in support of the United States, arguing that 
Sec. 3501 required the admission of Davis' voluntarily-made 
incriminating statements.\80\ We were surprised to discover a few days 
later that the brief of the Solicitor General affirmatively and 
gratuitously undermined our attempt to support the United States. The 
Solicitor General's brief argued that military courts-martial are not 
``criminal prosecutions'' covered by the statute \81\ and thus that 
Congress had not intended to reach cases like Davis.
---------------------------------------------------------------------------
    \80\ Brief Amicus Curiae of the Washington Legal Foundation, Davis 
v. U.S., No. 92-1949 (1994).
    \81\ Brief of the United States at 18 n.13, Davis v. U.S., No. 92-
1949 (1994).
---------------------------------------------------------------------------
    The implications of this position are remarkable. If the Solicitor 
General's position is correct, it would mean that suspects could more 
easily exclude their incriminating statements if prosecuted in a 
military court martial than if prosecuted in federal court. In many 
cases, a consequence would be that crime victims who served in the 
armed forces (as Davis itself serves to illustrate \82\) would be less 
likely to see justice than victims in other federal prosecutions. It is 
also strange to attribute such an intention to Congress, particularly 
since the whole point of Sec. 3501 was to limit ``the harmful effects'' 
of Miranda.\83\
---------------------------------------------------------------------------
    \82\ Davis was convicted of murdering Seaman Keith Shackleton.
    \83\ S. Rep. No. 1097, 90th Cong., 2nd Sess. (1968), reprinted in 
1968 U.S.C.C.A.N. 2112, 2127.
---------------------------------------------------------------------------
    Even before the case was argued, this peculiar interpretation of 
the statute raised a suspicion (at least in my mind) that the Solicitor 
General's Office was looking for a way to duck the issue without 
forthrightly explaining that it disliked the statute for ideological 
reasons. In oral argument before the Court, the suspicions were 
publicly confirmed. The Court repeatedly asked Assistant to the 
Solicitor General Richard H. Seaman about the effect of Sec. 3501. He 
gave generally unresponsive answers and finally, after being pressured 
by several questions, stated, ``We don't take a position on that 
issue.'' \84\ Later he made the same statement.\85\
---------------------------------------------------------------------------
    \84\ Official Transcript of Oral Argument at 44, Davis v. U.S., No. 
92-1949 (1994).
    \85\ Id. at 47 (``Again, we don't take a position in this case [on 
Sec. 3501]'').
---------------------------------------------------------------------------
    It is possible that the representative from the Solicitor General's 
Office may have been given explicit instructions not to say anything 
about the statute. At one point, Justice Scalia said, ``[I]t seems to 
me the Government ought to have a position on this.'' Mr. Seamon could 
only respond, ``You may well be right, Justice Scalia.'' \86\
---------------------------------------------------------------------------
    \86\ Id. at 45.
---------------------------------------------------------------------------
    This refusal to address the implications of the statute in response 
to specific questions from the Court did not go unnoticed. Justice 
O'Connor's majority opinion indicated an inability to discuss the issue 
because of the Department's failure, dropping a hint that the 
Department should consider raising it: ``We also note that the 
Government has not sought to rely in this case on 18 U.S.C. 3501, `the 
statute governing the admissibility of confessions in federal 
prosecutions,' \87\ and we therefore decline the invitation of some 
amici to consider it [citing Brief of WLF]. Although we will consider 
arguments raised only in an amicus brief, * * * we are reluctant to do 
so when the issue is one of first impression involving the 
interpretation of a federal statute on which the Department of Justice 
expressly declines to take a position.'' \88\ Justice Scalia, in a 
concurring opinion in the case, was even more specific, noting the 
bizarre quality of the Department's behavior:
---------------------------------------------------------------------------
    \87\ Justice O'Connor's opinion here was quoting from United States 
v. Alvarez-Sanchez, 511 U.S. 350, 351 (1994), a case decided that same 
term about the six-hour ``safe harbor'' provision for police 
interrogation contained in 18 U.S.C. Sec. 3501(c). It is interesting 
that the Department of Justice vigorously defended this provision, 
urging the admission of a confession under Sec. 3501(c) and explaining 
in its brief to the Court that Sec. 3501(a) ``requires the admission'' 
of voluntary statements. Br. for the U.S. at passim, United States v. 
Alvarez-Sanchez, No. 92-1812, 511 U.S. 350 (1994). At no point to the 
Department of Justice tell the Supreme Court that Sec. 3501(a) was 
unconstitutional; nor did the Department address any of the complex 
severability issues that would arise if part of the statute were 
unconstitutional. The Department had also urged the Court to admit a 
statement pursuant to Sec. 3501 in another case, albeit not over a 
constitutional objection from a defendant. See Br. for the United 
States, United States v. Jacobs, No. 76-1193, cert. dismissed as 
improvidently granted, 436 U.S. 31 (1978).
    \88\ See Davis v. U.S., 512 U.S. 452, 457 n.* (1994) (citing United 
States v. Alvarez-Sanchez, 511 U.S. 350, 351, (1994)). The Court had 
also briefly raised Sec. 3501 in oral argument in a case argued the 
previous term, United States v. Green, 592 A.2d 985 (D.C. App. 1991), 
cert. granted, 504 U.S. 908 (1992). The Court, however, never published 
an opinion in the case, because Green died in prison. See 507 U.S. 545 
(1993) (vacating order granting cert).

          The United States' repeated refusal to invoke Sec. 3501, 
        combined with the courts' traditional (albeit merely 
        prudential) refusal to consider arguments not raised, has 
        caused the federal judiciary to confront a host of ``Miranda'' 
        issues that might be entirely irrelevant under federal law. * * 
        * Worse still, it may have produced--during an era of intense 
        national concern about the problem of run-away crime--the 
        acquittal and the nonprosecution of many dangerous felons, 
        enabling them to continue their depredations upon our citizens. 
        There is no excuse for this.\89\
---------------------------------------------------------------------------
    \89\ 512 U.S. at 465 (Scalia, J., concurring) (emphasis added).

Justice Scalia went on to note that he could ``not immediately see why 
* * * the Justice Department has good basis for believing that allowing 
prosecutions to be defeated on grounds that could be avoided by 
invocation of Sec. 3501 is consistent with the Executive's obligation 
to `take Care that the Laws be faithfully executed.' '' \90\
---------------------------------------------------------------------------
    \90\ Id. (quoting U.S. Const., art. II, Sec. 3).
---------------------------------------------------------------------------
    The story of Sec. 3501 can now return to the Ninth Circuit, where 
the Department's career prosecutor handling the Cheely case read 
Justice Scalia's favorable remarks about Sec. 3501. He then promptly 
sent a letter to the Ninth Circuit appraising them of this decision and 
explaining briefly how the Davis decision applied to the issues at 
hand.\91\ Later that same day, political figures in the Department of 
Justice learned of this letter. This prompted a telephone call, 
apparently from Solicitor General Drew Days himself, to the clerk of 
the court for the Ninth Circuit. General Days then sent a letter from 
the Solicitor General withdrawing the earlier letter from the career 
prosecutor \92\ replacing it with a new letter that blandly mentioned 
that Davis might have some relevance to the Department's pending 
memorandum.\93\
---------------------------------------------------------------------------
    \91\ Letter from Mark H. Bonner to Cathy Catterson, Clerk, United 
States Court of Appeals for the Ninth Circuit (June 29, 1994).
    \92\ Letter from Drew S. Days, III, Solicitor General to Cathy 
Catterson, Clerk, United States Court of Appeals for the Ninth Circuit 
(June 29, 1994) (referring to ``our telephone conversation today'').
    \93\ Letter from Drew S. Days, III, Solicitor General to Cathy 
Catterson, Clerk, United States Court of Appeals for the Ninth Circuit 
(June 29, 1994) (citing Davis and noting ``[t]he decision in Davis 
related to Point 3'' of the government's brief). I am indebted to 
Solicitor General Days for providing me copies of this letter and the 
letter referred to in the preceding footnote.
---------------------------------------------------------------------------
    Apparently not enlightened by this letter, the Ninth Circuit then 
ordered briefing by the parties on whether Davis affected its earlier 
ruling.\94\ This led the United States to file a ``Supplemental 
Memorandum'' concerning Davis.\95\ Curiously, the memorandum's argument 
section fails to even argue the applicability of Sec. 3501, despite the 
obvious implications of the discussions of the statute in Davis.
---------------------------------------------------------------------------
    \94\ Order, U.S. v. Cheely, No. 92-30257 (9th Cir. Aug. 9, 1994) 
(directing parties to file briefs ``on the issue of suppression in 
light of the Supreme Court's decision in Davis v. U.S.'').
    \95\ Supplemental Memorandum of the United States Relating to the 
Question Whether Appellee Cheely Waived His Right to Counsel, U.S. v. 
Cheely, No. 92-30257 (9th Cir. 1994).
---------------------------------------------------------------------------
    Unsurprisingly, the Ninth Circuit ultimately decided not to rehear 
the case and the Department sought no further review in the United 
States Supreme Court. Cheely went to trial and, despite the 
government's inability to use his incriminating statements, was 
fortunately convicted. But the Department's handling of the case 
effectively undercut Sec. 3501 throughout the Ninth Circuit.

2. The department's commitment to raise Sec. 3501 in an ``appropriate'' 
                                  case

    After the Department's curious machinations in Cheely and Davis, 
there were those of us who strongly suspected that the Justice 
Department's political appointees had decided to reverse its long-
standing policy supporting Sec. 3501. Late in 1995, I raised these 
concerns in testimony before the Senate Judiciary Committee.\96\ At 
that same hearing, several members of the Judiciary Committee pressed 
this point with then-Solicitor General Drew Days. In response to 
questions from Senator (and former prosecutor Fred Thompson) about why 
the Department had not defended Sec. 3501 in these cases, Solicitor 
General Days denied there was some decision not to defend the statute:
---------------------------------------------------------------------------
    \96\ See Solicitor General Oversight: Hearing Before the Sen. Comm. 
on the Judiciary, 104th Cong., 1st Sess. 72-80 (1995).

          Well, we simply said [in Davis] that it was not properly 
        raised and there was a problem with courts martial. Let me make 
        clear, Senator, that there is no policy in the Department, and 
        the Attorney General has already advised the committee of this 
        fact, against raising 3501 in an appropriate case. Indeed, we 
        have used some provisions of 3501 * * * So I think it is really 
        a question of our making the decision as prosecutors when we 
        are going to raise these issues. * * *
          The Department has to make a strategic decision in cases as 
        to how it is going to use Federal statutes, and in Cheely and 
        in Davis the decision was made not to press that particular 
        argument. It doesn't mean to say that we won't under other 
        circumstances.\97\
---------------------------------------------------------------------------
    \97\ Id. at 31, 33.

Later, under questioning from Senator Biden Solicitor General Days 
again denied any decision was in place not to enforce the law: ``with 
respect to 3501, as I indicated earlier, there is no Department policy 
against using 3501 in an appropriate case.'' \98\
---------------------------------------------------------------------------
    \98\ Id. at 42.
---------------------------------------------------------------------------
    The position taken by the Solicitor General was the same as that 
taken by other Clinton Administration political appointees at this 
time. For example, in response to a written question from Senator Hatch 
in an oversight hearing in 1995, Attorney General Reno stated: ``The 
Department of Justice does not have a policy that would preclude it 
from defending the constitutional validity of Section 3501 in an 
appropriate case.''\99\ Indeed, the Attorney General even pointed to 
the Department's recent efforts on behalf of Sec. 3501 in Cheely, 
noting that ``the most recent case in which we raised Section 3501 held 
that the statute did not `trump' Supreme Court precedent.''\100\ In a 
1997 oversight hearing, Senator Jeff Sessions asked Attorney General 
Reno about the statute.
---------------------------------------------------------------------------
    \99\ The Administration of Justice and the Enforcement of Laws, 
Hearings Before the Sen. Judiciary Committee, 104th Cong., 1st Sess. 91 
(June 27, 1995) (written answer of Attorney General Reno to question of 
Senator Hatch).
    \100\ Id. (citing United States v. Cheely, 21 F.3d 914, 923 (9th 
Cir. 1994)).
---------------------------------------------------------------------------
          Sessions: A number of years ago, I think you were asked about 
        it, and you indicated you would consider using it, some two 
        years ago, in an appropriate case. Two years have passed, and 
        that still has not happened * * * [D]o you know--has the 
        Department of Justice under your tenure ever asserted section 
        3501?
          Reno: I understand that it was raised in United States v. 
        Cheely * * * and we did not prevail.
          Sessions: In what circuit. * * *
          Reno: Ninth Circuit.
          Sessions: Well, that would be your least best chance of 
        prevailing with 3501 [laughter]. * * *
          Reno: * * * what I try to do, based on the evidence in the 
        law, is not create hypotheticals, but to say when the 
        appropriate circumstances arise, we'll do what's right. And 
        we'll review this, and determine when it's right, if it's 
        right, and do it.
          Sessions: Well, I just would ask you--I assume, then, that 
        you are not committing to follow that law, and I think that 
        would--from your previous testimony, I had understood that you 
        would in an appropriate case.
          Reno: I just told you, I'd do it if it's right in an 
        appropriate case.
          Sessions: Well, I'll take that as you express it. I assume 
        that you will in the right case, and I think it's time to 
        assert that.\101\
---------------------------------------------------------------------------
    \101\ Department of Justice Oversight: Hearings Before the Sen. 
Comm, on the Judiciary, 105th Cong., 1st Sess. 89-90 (April 30, 1997).

United States Attorney Eric Holder, when his nomination to be Deputy 
Attorney in the Department was under consideration by the Judiciary 
Committee, also promised to support the statute in appropriate 
---------------------------------------------------------------------------
situations:

          Question: Do you believe that the United States Attorneys 
        should invoke this statute in an appropriate case?
          Answer: My experience has been that we have not had 
        significant difficulty in getting the federal district court to 
        admit voluntary confessions under Miranda and its progeny. 
        However, I would support the use of Section 3501 in an 
        appropriate circumstance.\102\
---------------------------------------------------------------------------
    \102\ Confirmation of Deputy Attorney General Nominee Eric Holder: 
Hearings before the Sen. Comm. on the Judiciary, 105th Cong., 1st Sess. 
124 (June 13, 1997) (written response of Deputy Attorney General 
Designate Holder to question from Senator Thurmond).
---------------------------------------------------------------------------

   3. Fourth circuit litigation over Sec. 3501 in Sullivan and Leong

    The ``appropriate'' circumstance for raising Sec. 3501 would turn 
out to be hard for the current Administration to find. Indeed, in the 
next case presenting the issue--United States v. Sullivan \103\--
political appointees in the Department even tried to ``unfile'' a brief 
filed by a career prosecutor defending Sec. 3501.
---------------------------------------------------------------------------
    \103\ 138 F.3d 126 (4th Cir. 1998).
---------------------------------------------------------------------------
    Robert Sullivan was stopped by U.S. Park Police for a missing 
license plate. After reviewing his registration, the officer did not 
cite him, but told him to correct the problem. Sullivan was free to go; 
but the officer asked the unusually nervous Sullivan if he had anything 
illegal in his car. After repeating the question a few times, Sullivan 
owned up that he had a fully loaded revolver right under the front 
seat. Sullivan had a prior armed robbery conviction and was charged 
with being a felon illegally in possession of a gun.
    In the subsequent prosecution, Sullivan's lawyer moved to suppress 
the gun and Sullivan's statement that he had it, on the ground that the 
officer did not read Sullivan his Miranda rights. The judge agreed, and 
suppressed the gun and the statement. The judge raised no suggestion 
that the statement was involuntary, and--since it was made after 
Sullivan was ``questioned'' for at most one minute, in broad daylight, 
sitting by the roadside in his own car--the voluntariness argument 
seems obvious. The judge suppressed the evidence solely because no 
Miranda warnings were given. In its opinion suppressing the statement, 
however, the district court specifically asked the higher courts to 
reassess whether mechanical application of the exclusionary rule should 
continue to be the law.\104\
---------------------------------------------------------------------------
    \104\ See United States v. Sullivan, 948 F. Supp. 549, 558 (E.D. 
Va. 1996).
---------------------------------------------------------------------------
    Career prosecutors in the United States Attorney's Office for the 
Eastern District of Virginia appealed, arguing that no Miranda warnings 
were needed because Sullivan was not in the officer's custody. But the 
Office also argued, picking up on the suggestion from the district 
court, that even if Sullivan had been in custody, the statement should 
be admitted because under Sec. 3501. The brief explained that 
``Congress acted within its powers in modifying Miranda's prophylactic 
rules'' and ``section 3501 complies with the Constitution.'' \105\ On 
March 5, 1997, the brief for the office was filed with the Fourth 
Circuit.
---------------------------------------------------------------------------
    \105\ Brief for the United States at 18, United States v. Sullivan, 
No. 97-4017 (4th Cir. Mar. 5, 1997).
---------------------------------------------------------------------------
    On March 26, 1997, the Acting Solicitor General, Walter Dellinger, 
submitted a letter to the Clerk of the Fourth Circuit Court, 
accompanied by a ``Motion to Substitute Redacted Brief for the United 
States.'' The letter said: ``I am writing to withdraw the government's 
brief * * * and to request leave to file as a substitute the enclosed 
brief.'' \106\ The letter claimed (without presenting supporting 
citations or documentation) that the brief presented issues ``that were 
not presented to me for consideration at the time I authorized the 
government to appeal.'' The accompanying motion noted that a new 
attorney in Washington, D.C., was to be substituted as counsel on the 
case in place of the career prosecutors handling the appeal from the 
Eastern District of Virginia.\107\ Attached to the motion was a new 
brief that simply omitted the part arguing Sec. 3501.
---------------------------------------------------------------------------
    \106\ Letter from Walter Dellinger, Acting Solicitor General to 
Patricia S. Connor, Clerk, U.S. Court of Appeals for the Fourth 
Circuit, Mar. 26, 1997.
    \107\ Motion to Substitute Redacted Brief for the United States, 
United States v. Sullivan, No. 97-4017 (4th Cir. Mar. 26, 1997).
---------------------------------------------------------------------------
    Apparently anticipating the court granting the government's, 
motion, on March 31, 1997, Sullivan's counsel filed a brief that did 
not discuss the admissibility of the statement under 18 U.S.C. 
Sec. 3501.\108\ On April 3, 1997, the Fourth Circuit granted the 
government's motion to file the new, redacted brief.
---------------------------------------------------------------------------
    \108\ Br. for Appellee, United States v. Sullivan, No. 97-4017 (4th 
Cir. Mar. 31, 1997).
---------------------------------------------------------------------------
    The Washington Legal Foundation, represented by Paul Kamenar and 
me, learned of the decision and thought that, rather than leave the 
Court of Appeals for the Fourth Circuit in the dark on this key issue, 
WLF should attempt to have the matter brought to the court's attention. 
On June 26, 1997, WLF filed a motion to submit an amicus brief in the 
Sullivan case on behalf of WLF and four members of the Senate Judiciary 
Committee--Senators Jeff Sessions, Jon Kyl, John Ashcroft, and Strom 
Thurmond. There was nothing complex about the motion. WLF simply asked 
the court to accept for filing the arguments that the career 
prosecutors had previously submitted on behalf of the statute.
    In support of its motion, WLF explained why the Court should reach 
the issue of the applicability of Sec. 3501. The Supreme Court has 
described Sec. 3501 as `` `the statute governing the admissibility of 
confessions in federal prosecutions.' '' \109\ Moreover, WLF observed 
that a few months earlier the Fourth Circuit had found it necessary to 
unanimously reject an ``inexplicabl[e]'' concession of error by the 
Clinton Justice Department that evidence obtained during the course of 
a traffic stop should have been suppressed.\110\ WLF further argued at 
length that the government's attempted withdrawal of the argument based 
on Sec. 3501 did not license a court to ignore a controlling Act of 
Congress. WLF noted that the Supreme Court has instructed that the 
parties cannot prevent a court from deciding a case under the governing 
law simply by refusing to argue it. In United States National Bank of 
Oregon v. Independent Insurance Agents of America, Inc.,\111\ the Court 
concluded that it was free to reach the issue whether Congress had 
repealed the statute the Comptroller of the Currency had used to rule 
against the respondent even though the respondent had specifically 
refused to make an argument to that effect both before the court of 
appeals and before the Supreme Court. The Court held that it would be 
absurd to allow the parties' decisions about what arguments to press to 
force the Court to decide the meaning of a statute that had been 
repealed. ``The contrary conclusion,'' the Court explained, ``would 
permit litigants, by agreeing on the legal issue presented, to extract 
the opinion of a court on hypothetical Acts of Congress or dubious 
constitutional principles, an opinion that would be difficult to 
characterize as anything but advisory.'' \112\ WLF finally noted that 
the parties before the court had apparently literally colluded to 
remove this argument from the case. The Department of Justice decided 
to abandon the U.S. Attorney's office's Sec. 3501 argument as a result 
of a call from defense counsel to the Solicitor General's Office in 
Washington, D.C.\113\ This was done in the teeth of a statute that 
governs not the conduct of private parties outside the courtroom, but 
rather the conduct of the courts themselves.\114\
---------------------------------------------------------------------------
    \109\ Davis v. United States, 512 U.S. 452, 457 (1994) (quoting 
United States v. Alvarez-Sanchez, 114 S. Ct. 1599, 1600 (1994)).
    \110\ United States v. Stanfield, 109 F.3d 969, 984 n.5 (4th Cir. 
1997).
    \111\ 508 U.S. 439, 445-48 (1992).
    \112\ Id. at 447, cited in Davis v. United States, 512 U.S. at 464 
(Scalia, J., concurring).
    \113\ Dept. of Justice Oversight: Hearings Before the Senate Comm. 
on the Judiciary, 105th Cong., 1st Sess. (Apr. 30, 1997) (remarks of 
Sen. Thompson) (``My understanding is that the defendant's attorney 
called the Justice Department, and the Justice Department caused this 
career prosecutor's brief [asserting 3501] to be withdrawn. * * *'').
    \114\ See 18 U.S.C. Sec. 3501 (providing that ``in any [federal] 
criminal prosecution'' a confession ``shall be admissible in 
evidence'') (emphasis added); see also Davis v. United States, 512 U.S. 
452, 465 (1994) (Scalia, J., concurring) (Sec. 3501 ``is a provision of 
law directed to the courts'') (emphasis in original).
---------------------------------------------------------------------------
    The Department's decision to file a new brief not discussing 
Sec. 3501 also raised serious issues of professional responsibility. 
Many codes of professional responsibility, including the Virginia Code 
of Professional Responsibility, indicate that courts expect ``pertinent 
law [will be] presented by the lawyers in the cause.'' \115\ As a 
result, ``Where a lawyer knows of legal authority in the controlling 
jurisdiction directly adverse to the position of his client, he should 
inform the tribunal of its existence unless his adversary has done 
so.'' \116\ A duty of candor should have compelled the Department of 
Justice to make the Court aware of this controlling ``legal 
authority.'' \117\
---------------------------------------------------------------------------
    \115\ Va. Code Prof. Resp., Ethical Consideration 7-20.
    \116\ Id.
    \117\ Sadly, the Fourth Circuit had previous experience with the 
current Department of Justice misrepresenting legal issues to the 
court. In one case, nine judges of the Fourth Circuit roundly 
criticized the Department for, ``on virtually every occasion when it 
recite[d the relevant statute's] requirements,'' ``intentional[ly] 
omi[tting] * * * three manifestly relevant words'' the statute 
contained which the Department apparently did not care for. Virginia v. 
Riley, 106 F.3d 559, 565 (4th Cir. 1997). In failing to cite Sec. 3501, 
the Department seems to have gone even further--deliberately omitting 
not merely three words but any reference whatever to the governing 
statute.
---------------------------------------------------------------------------
    The Fourth Circuit granted the motion of WLF and Senators Sessions, 
Kyl, Ashcroft, and Thurmond to file the brief.\118\ But ultimately the 
Court's ruling gave it no occasion to reach the Sec. 3501 issue. The 
Court reversed the district court's decision that Sullivan had been in 
custody; the police officer, accordingly, was not required to give 
Miranda warnings. The Court then dropped a footnote on the Sec. 3501 
issue: ``Amici curiae urge that we reverse the district court on the 
basis of 18 U.S.C. Sec. 3501 (providing for the admissibility of 
confessions voluntarily given). Because our decision moots this issue 
and because the parties neither presented it to the district court nor 
briefed it on appeal, we decline to address it.'' \119\
---------------------------------------------------------------------------
    \118\ Order, United States v. Sullivan, No. 97-4017 (Sept. 10, 
1997).
    \119\ United States v. Sullivan, 138 F.3d 126, 134 n.* (4th Cir. 
1998).
---------------------------------------------------------------------------
    While the Sullivan case shed little light on Sec. 3501, United 
States v. Leong\120\ was more illuminating. While our motion to raise 
Sec. 3501 was pending before the Court in Sullivan, Paul Kamenar and I 
learned of another Fourth Circuit case in which a dangerous criminal 
had obtained a Fourth Circuit ruling suppressing his confession, with 
the apparent result that he was about to be released. In Leong, a 
police officer had made a valid stop of a vehicle for speeding. He had 
also validly obtain a consent to search the vehicle. During the ensuing 
search, the officer discovered a handgun on the floor behind the 
driver's seat. The officer retrieved the firearm, walked to the rear of 
the vehicle, and ordered all four individuals to squat and put their 
hands above their heads. The officer then asked Leong and his 
companions who owned the firearm, but no one answered. After a few 
moments, the driver became somewhat distraught and also asked the 
others who owned the firearm. When no one responded, the officer 
advised Leong and the others that they were ``all going to be placed 
under arrest'' until he could determine who owned the firearm. At that 
point, Leong confessed it was his gun.
---------------------------------------------------------------------------
    \120\ 116 F.3d 1474, 1997 WL 3512414 (4th Cir. 1997 unpublished).
---------------------------------------------------------------------------
    Leong was a felon, and was charged with being a felon in possession 
of a firearm. The district court, however, concluded that Leong was in 
``custody'' when he confessed. Because he had not been his Miranda 
warnings at that time, it suppressed any evidence of the gun, making 
any prosecution of Leong impossible. The government appealed, arguing 
the Leong was not in fact in custody at this time. The Fourth Circuit, 
however, reluctantly affirmed the district court's suppression order 
``under the narrow facts presented by this case.'' An unpublished 
opinion to that effect was released on June 26, 1997.
    The Washington Legal Foundation, represented by Paul Kamenar and 
me, then filed a motion suggesting the appropriateness of sua sponte 
rehearing and rehearing en banc to examine the applicability of 
Sec. 3501.\121\ In its motion, WLF explained that the parties had 
failed to appraise the Court of potentially relevant legal authority, 
specifically 18 U.S.C. Sec. 3501. In its accompanying brief, WLF argued 
that the issue was one of exceptional importance that should be 
considered by the full Fourth Circuit. In particular, WLF noted that 
the effect of the Court's ruling was to permit the escape from justice 
an armed and presumptively dangerous felon. To allow this in the face 
of a federal statute to the contrary was, WLF explained, ``to bestow a 
windfall benefit that seriously affects the fairness, integrity and 
public reputation of judicial proceedings.'' \122\
---------------------------------------------------------------------------
    \121\ Motion of the Washington Legal Foundation and Safe Streets 
Coalition to File as Amici Curiae A Suggestion of Appropriateness of 
Sua Sponte Rehearing and Rehearing En Banc, United States v. Leong, 96-
4876 (July 9, 1997).
    \122\ Br. of Amici Curiae WLF and Safe Streets Coalition Suggesting 
the Appropriateness of a Sua Sponte Rehearing and Rehearing En Banc at 
8, United States v. Leong, 96-4876 (4th Cir. July 9, 1997) (quoting 
United States v. Perkins, 108 F.3d 512, 517 (4th Cir. 1997).
---------------------------------------------------------------------------
    An astonishing development then occurred. Five days after WLF filed 
its brief--before the Fourth's Circuit had an opportunity to rule on 
WLF's motion and even before the Fourth Circuit's mandate had issued 
returning the case to the district court--the Department of Justice 
moved in the district court to dismiss the indictment against Leong, 
and a dismissal order was entered on July 16,1997.\123\ This appeared 
to be a brazen maneuver by the Department to simply avoid the Sec. 3501 
issue by rending the case moot, in spite of the jeopardy to public 
safety consequences involved in simply dismissing the indictment 
against a dangerous criminal. The Department's ploy in the district 
court, however, turned out to be without legal effect on the Fourth 
Circuit, as the Court of Appeals still retained jurisdiction over the 
case.\124\
---------------------------------------------------------------------------
    \123\ See Supp. Br. of the United States at 5, infra note 131.
    \124\ See United States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 
1996).
---------------------------------------------------------------------------
    On July 16, 1997, the Fourth Circuit issued an order directing the 
Department of Justice and counsel for Leong ``to submit supplemental 
briefs addressing the effect of 18 U.S.C.A. Sec. 3501 on the 
admissibility of Leong's confession, including the effect of the 
statute on Miranda v. Arizona. * * * and any constitutional issues 
arising therefrom.''\125\ This order seemed to present a 
``appropriate'' case for the Department of Justice to defend the 
statute, particularly since the Fourth Circuit had asked specifically 
for the Department's views. The Chairman and five members of the Senate 
Judiciary Committee certainly expected the Department to do this. On 
August 28, 1997, the six distinguished Senators wrote a careful letter 
to Attorney General Reno carefully analyzing the legal issues and 
strongly urging her to defend the law:
---------------------------------------------------------------------------
    \125\ Order, United States v. Leong, No. 96-272 (4th Cir. July 16, 
1997).

          We believe that Section 3501 is constitutional. While the 
        Supreme Court has not passed on this question directly, we 
        believe that the Court would uphold the statute. * * * On 
        numerous occasions, the Supreme Court has described Miranda's 
        rules as prophylactic measures that are designed to assist in 
        effectuating the Fifth Amendment's prohibition against 
        compelled self-incrimination, but that are not required by the 
        Fifth Amendment itself. [collecting cases]
          There is direct authority for the proposition that Section 
        3501 * * * is constitutional. The Tenth Circuit is the only 
        federal circuit court that, at the behest of the Department of 
        Justice, has specifically addressed the constitutionality of 
        Section 3501 [citing Crocker]. In that case, the district court 
        applied Section 3501, rather than Miranda, and admitted a 
        defendant's statements, on the ground that they were voluntary. 
        The principal holding of the court of appeals was that the 
        district court acted properly and that the statute is 
        constitutional. * * *\126\
---------------------------------------------------------------------------
    \126\ Letter from Senators Orrin Hatch, Strom Thurmond, Fred 
Thompson, Jon Kyl, John Ashcroft, and Jeff Sessions to Attorney General 
Janet Reno at 3-4 (Aug. 28, 1997).

The Senators concluded, ``The undersigned members do not want to see a 
guilty offender go free due to a technical error if the Justice 
Department easily can prevent such a miscarriage of justice by invoking 
the current written law.'' \127\
---------------------------------------------------------------------------
    \127\ Id. at 5.
---------------------------------------------------------------------------
    The Senators had every reason to expect that the Department would 
defend the law, as it had in earlier cases. The Senators noted the 
repeated assurances they had received from the Department that it would 
defend the statute in an ``appropriate case.'' The Senators recounted, 
for example, Solicitor General Days testimony about the decision of the 
Department not to pursue Sec. 3501 further in the Cheely case,\128\ 
noting that ``Mr. Days attributed the Department's refusal * * * to 
pursue the issue any further in the Ninth Circuit case of United States 
v. Cheely not to doubts about its constitutionality--indeed, he never 
suggested in the course of the hearing that the Department had any such 
doubts--but instead to various litigation strategy considerations. He 
specifically stated that the decision not to press the argument in 
those cases `doesn't mean that we won't under other circumstances.' '' 
\129\ Moreover, the Department had itself raised Sec. 3501 before, as 
noted in a motion for an extension of time filed when the Fourth 
Circuit ordered briefing in Leong on Sec. 3501. In response to the 
Fourth Circuit's order, the Chief of the Appellate Section of the 
Criminal Division request for additional time stated matter-of-factly 
not that there was some Department of Justice policy against making 
such an argument in the courts of appeals, but rather to the contrary 
that ``[t]he Department's last attempt to invoke Section 3501(a) was 
not successful.'' \130\
---------------------------------------------------------------------------
    \128\ See supra note 97 and accompanying text.
    \129\ Letter from Senators Orrin Hatch et al., supra note 126, at 
4-5 (quoting testimony of Solicitor General Drew Days).
    \130\ Joint Motion for a Thirty-Day Extension of Time Within Which 
to File Supplemental Briefs in the Above Case at 3, United States v. 
Leong, No. 96-4876 (4th Cir.) (filed July 22, 1997) (citing United 
States v. Cheely, 36 F.3d 1439, 1448 (9th Cir. 1994).
---------------------------------------------------------------------------
    In spite of all this, the Clinton Justice Department, apparently 
acting at the behest of political appointees at the highest levels, 
filed a brief in Leong actually joining the defendant in arguing that 
the statute was unconstitutional. The Department's brief advanced two 
claims. First, the Department asserted that the ``lower courts'' could 
not reach the question of the effect of the 1968 statute because 
Supreme Court's 1966 decision in Miranda had decided the issue: 
``Miranda has never expressly been overruled, and it is the Supreme 
Court's sole province to pass on the continuing validity of its 
decisions.''\131\ Second, the Department argued that on the merits, the 
statute was unconstitutional, at least in the lower courts. The 
Department argued ``we do not believe that the Supreme Court's 
jurisprudence permits this or any lower court to draw that the 
conclusion that Miranda [has been superseded by Sec. 3501].'' \132\ In 
the Supreme Court, however, things might be different: ``Should the 
issue of Sec. 3501's validity * * * be presented to the Supreme Court * 
* * the same considerations would not control, since the Supreme Court 
(unlike the lower courts) is free to reconsider its prior decisions, 
and the Department of Justice is free to urge it to do so.'' \133\ The 
Department's brief also contained a footnote declaring that the 
position in this brief ``constitutes the position of the executive 
branch of the United States in the lower courts.'' \134\ Shortly 
thereafter, the Attorney General sent a notice to Congress that she 
would not defend Sec. 3501 in the lower courts.\135\
---------------------------------------------------------------------------
    \131\ Supp. Br. for the United States at 23, United States v. 
Leong, No. 96-4876 (4th Cir. Aug. 29, 1997).
    \132\ Id. at 18.
    \133\ Id. at 7.
    \134\ Id. at 24 n. 10.
    \135\ See, e.g., Letter from Attorney General Janet Reno to Hon. 
Albert Gore, Jr., President of the Senate (Sept. 10, 1997).
---------------------------------------------------------------------------
    The Department's argument was joined, in a curious (and, some might 
say, unholy) alliance, by defendant and convicted felon Tony Leong and 
the National Association of Criminal Defense Lawyers. WLF then filed a 
reply to all of this, explaining why Sec. 3501 was a valid exercise of 
Congressional power to modify prophylactic, evidentiary rules created 
by the Supreme Court.\136\ The WLF brief explained that the Miranda 
rules were not constitutionally required and were, therefore, subject 
to congressional modification.
---------------------------------------------------------------------------
    \136\ Brief of Amici Curiae WLF and Safe Streets Coalition in 
Response to Supplemental Briefs of the Parties and Amicus National 
Ass'n of Criminal Defense Lawyers, United States v. Leong, No. 96-4876 
(4th Cir. Sept. 12, 1997).
---------------------------------------------------------------------------
    On September 19, 1997, the Fourth Circuit issued its order 
declining to rehear the case. The Circuit first recounted the 
Department's argument that lower courts could not reach the question of 
Sec. 3501, concluding succinctly: ``We disagree.'' \137\ The Court 
recounted a number of other situations where lower courts had 
considered similar issues and then concluded, ``The Government is 
mistaken, therefore, in asserting that it may not urge the 
applicability of Sec. 3501 before a lower court.'' \138\ The Court, 
however, went on to conclude that, because Sec. 3501 had been raised by 
WLF belatedly only on a petition for rehearing, the Court could 
consider only whether it was ``plain error'' to suppress a confession 
in spite of the statute. Because the question of Sec. 3501 had not been 
plainly settled, the Court declined to consider the statute for the 
first time on an appellate petition for rehearing.\139\
---------------------------------------------------------------------------
    \137\ Order at 3, United States v. Leong, No. 96-4876 (4th Cir. 
Sept. 19, 1997).
    \138\ Id. at 4.
    \139\ Id. at 4-6.
---------------------------------------------------------------------------
    The Leong decision seemed to set the stage for a successful defense 
of Sec. 3501, if only a case could be found in the Fourth Circuit in 
which the statute had been raised not on appeal but in the trial court. 
The Department, however, took pains to make sure that this would not 
happen. On November 6, 1997, John C. Keeney, Acting Assistant Attorney 
General for the Criminal Division, sent a memorandum to all United 
States noting the Department's position against Sec. 3501 in Leong and 
requiring the prosecutors to ``consult[]'' with the criminal division 
in all cases concerning the voluntariness provisions of the 
statute.\140\ Fortunately for the statute, however, the Department's 
efforts to consign Sec. 3501 to oblivion in the trials court came too 
late, as will be recounted presently in connection with the Dickerson 
decision.
---------------------------------------------------------------------------
    \140\ Memorandum for all United States Attorneys and all Criminal 
Division Section Chiefs from John C. Keeney, Acting Asst. Atty. Gen., 
Crim. Div. at 2 (Nov. 6, 1997).
---------------------------------------------------------------------------

     4. Section 3501 in the District of Utah and the Tenth Circuit

    Before turning to this final act in the Fourth Circuit, it is 
necessary to complete the chronology of Sec. 3501 litigation by 
returning briefly to the Tenth Circuit. After the Tenth Circuit's 1975 
ruling in Crocker upholding Sec. 3501, one would have thought that 
other cases involving the statute would have been plentiful. Yet, while 
later cases from the Circuit had cited both Crocker and Sec. 3501 
favorably,\141\ by and large the courts and prosecutors within the 
Tenth Circuit appeared to be unaware of the decision. A few 
experienced, career prosecutors in that Circuit, however, realized the 
value of Sec. 3501 and attempted to use it in appropriate cases.\142\ 
One such case was United States v. Nafkha. The defendant there, Mounir 
Nafkha, was involved in a series of armed ``takeover'' bank robberies 
and was a dangerous, career criminal. While he had confessed to his 
participation in the robberies, the remaining evidence against him was 
circumstantial. Whether he would be taken off the streets--or set free 
to continue his life of crime--depended on the admissibility of his 
confession in court.
---------------------------------------------------------------------------
    \141\ See United States v. Brown, 540 F.2d 1048, 1053 (10th Cir. 
1976), cert. denied, 429 U.S. 1100 (1977); United States v. Shoemaker, 
542 F.2d 561, 563 (10th Cir.), cert. denied, 429 U.S. 1004 (1976); 
United States v. Fritz, 580 F.2d 370, 378 (10th Cir.) (en banc), cert. 
denied, 439 U.S. 947 (1978); United States v. Hart, 729 F.2d 662, 666-
67 (10th Cir. 1984), United States v. Benally, 756 F.2d 773, 775-76 
(10th Cir. 1985); United States v. Fountain, 776 F.2d 878, 886 (10th 
Cir. 1985); United States v. Short, 947 F.2d 1445, 1450 (10th Cir. 
1991); United States v. Caro, 965 F.2d 1548, 1552 (10th Cir. 1992); 
United States v. Miller, 987 F.2d 1462, 1464 (10th Cir. 1993); United 
States v. March, 999 F.2d 456, 462 (10th Cir. 1993); United States v. 
Glover, 104 F.3d 1570, 1583 (10th Cir. 1997); see also United States v. 
DiGiacomo, 579 F.2d 1211, 1217-18 (10th Cir. 1978) (Barrett, J., 
dissenting).
    \142\ See, e.g., Govt's Resp. to Motion to Suppress at 12, United 
States v. Cale, No. 1:97-CR-9B (D. Utah 1997) (citing Sec. 3501 and 
noting that Crocker ``is the law in this circuit'').
---------------------------------------------------------------------------
    Under Miranda, the admissibility of the confession appeared to be a 
close question. When taken into custody by federal agents, Nafkhahad 
made a reference to a lawyer that might, under the Miranda rules be 
possible viewed as requiring police to stop all questioning. The case 
was brought to my attention by a person who was concerned that Nafkha 
might escape justice because of the Miranda exclusionary rule. 
Ultimately, both the United States and WLF as amicus (represented by 
me) filed briefs arguing for the admission of Nafkha's confession under 
Sec. 3501.\143\ The magistrate ruled that while the Sec. 3501 argument 
was ``logical and intriguing, this issue need not be reached'' because 
police had complied with Miranda.\144\ Nafkha's confession was 
presented to the jury, and he was convicted.
---------------------------------------------------------------------------
    \143\ See Memorandum of Amicus Curiae Washington Legal Foundation 
in Support of the United States on Issues Raised by the Defendants' 
Motions to Suppress Statements, United States v. Nafkha, No. 95-CR-220C 
(D. Utah Feb. 7, 1996); Government's Response to Motion to Suppress 
Statement-Nafkha, United States v. Nafkha, No. 95-CR-220C (D. Utah Feb. 
7, 1996).
    \144\ Report and Recommendation at 22, United States v. Nafkha, No. 
95-CR-220C (Apr. 5, 1996).
---------------------------------------------------------------------------
    On Nafkha's appeal to the Tenth Circuit, the career prosecutor 
filed a brief on behalf of the United States defending the admission of 
the confession under both Miranda doctrine and Sec. 3501.\145\ WLF, 
too, filed a brief defending Sec. 3501, joined by the International 
Association of Chiefs of Police, the Law Enforcement Alliance of 
America, and other groups.\146\ While the case was awaiting argument, 
the Department filed its brief in Leong attacking Sec. 3501. The 
Department then sent a letter to the clerk of the Tenth Circuit, 
withdrawing the portion of the Nafkha brief by the career prosecutor 
defending Sec. 3501, and substituting as the government's position 
copies of the politically-approved brief from Leong.\147\ Curiously, in 
executing this xerox-and-file maneuver to briefing, the Department 
never explained why Sec. 3501 did not apply in the Tenth Circuit. The 
Circuit, after all, had previously and specifically upheld the statute 
(at the behest of the Department) more than twenty years earlier in 
Crocker \148\ and later Circuit precedent favorably cited both Crocker 
and Sec. 3501.\149\ The Leong brief from the Fourth Circuit did not 
argue that Crocker had been overruled and did not discuss later Tenth 
Circuit precedent. All the Leong brief said was that ``the Tenth 
Circuit has not had occasion to reexamine Crocker in light of 
subsequent developments in the Supreme Court's Miranda jurisprudence. * 
* *'' \150\ Of course, this was no reason to ignore a binding Tenth 
Circuit precedent in the Tenth Circuit. The Tenth Circuit ultimately 
ruled that the confession had been obtained in compliance with 
Miranda.\151\ As result, the Court stated, ``The disposition of this 
appeal does not require us to consider whether 18 U.S.C. Sec. 3501 
overrules Miranda.\152\
---------------------------------------------------------------------------
    \145\ See Brief of Appellee United States at 17, United States v. 
Nafkha, No. 96-4130 (10th Cir. Apr. 23, 1997).
    \146\ See Brief of Amici Curiae WLF et al., United States v. 
Nafkha, No. 96-4130 (10th Cir. Apr. 28, 1997).
    \147\ Letter from Lisa Simotas, U.S. Dep't of Justice, to Patrick 
Fisher, Clerk, U.S. Court of Appeals for the Tenth Cir. (Sept. 2, 
1997).
    \148\ See supra note 51 and accompanying text.
    \149\ See supra note 141.
    \150\ Supp. Br. of the United States, supra note 131, at 17 n.6.
    \151\ United States v. Nafkha, 139 F.3d 913, 1998 WL 45492 
(unpublished 10th Cir. Feb. 5, 1998).
    \152\ Id., 1998 WL 45492 at *1 n.1.
---------------------------------------------------------------------------
    At around this time, the Clinton Justice Department's determined 
and ingenuous efforts to keep courts from reaching the merits of the 
effects of Sec. 3501 soon began to unravel. The Department's position 
was first rebuffed by a federal district court in Utah. There, the Safe 
Streets Coalition, represented by me, filed an amicus brief raising 
Sec. 3501 and pointing out that, in the District of Utah, the Tenth 
Circuit's decision in Crocker was binding on the issue.\153\ The 
Department of Justice, apparently at the behest of political appointees 
in Washington,\154\ responded by simply attaching to a cursory pleading 
its brief in the Leong case.\155\ Safe Streets replied by criticizing 
this ``one size fits all'' approach to briefing, explaining that the 
Department's brief from Leong in the Fourth Circuit contained no 
analysis of why district courts within the Tenth Circuit should ignore 
Crocker.\156\ The district court fully agreed, and issued a published 
opinion upholding Sec. 3501. The court first noted the Department's 
``curious position'' agreeing with the defendant ``that Sec. 3501 does 
not apply and is unconstitutional.'' \157\ The court rejected the 
Department's strange position, finding that the Supreme Court had 
repeatedly described the Miranda rules as not constitutionally 
mandated. Moreover, the Tenth Circuit had ``squarely upheld the 
constitutionality of'' Sec. 3501 in Crocker.\158\ The court concluded:
---------------------------------------------------------------------------
    \153\ Memorandum of Amici Curiae Safe Streets Coalition et al. on 
the Applicability of 18 U.S.C. Sec. 3501 to Defendant's Motion to 
Suppress Statements, United States v. Rivas-Lopez, No. 97-CR-104G (July 
25, 1997).
    \154\ At this time, the United States Attorney for the District of 
Utah, my good friend Scott Matheson, asked that all contacts with his 
office on Sec. 3501 pass through him so that he could obtain approval 
from the Criminal Division in Washington for any filings.
    \155\ Govt's Supp. Response to Defendant's Motion to Suppress, 
United States v. Rivas-Lopez, No. 97-CR-104G (Sept. 5, 1997).
    \156\ Reply Mem. of Amici Curiae Safe Streets Coalition et al. 
Replying to the Position of the Dep't of Justice and the Defendant on 
the Applicability of Sec. 3501, United States v. Rivas-Lopez, No. 97-
CR-104G (Sept. 12, 1997).
    \157\ United States v. Rivas-Lopez, 988 F. Supp. 1424, 1430 (D. 
Utah 1997).
    \158\ Id. at 1435.

          The government implies that the Miranda jurisprudence since 
        the Crocker case would undoubtedly persuade this circuit to 
        alter its course if given the chance, but apparently the 
        government does not want to give the Tenth Circuit that chance. 
        Given the above review of the cases and post-Miranda decisions, 
        this court declines to so speculate, and will and must follow 
        the precedent set in this circuit.\159\
---------------------------------------------------------------------------
    \159\ Id.

    Rivas-Lopez appeared to present an opportunity to obtain a clear-
cut appellate ruling on the merits of Sec. 3501, as the decision 
surmounted the current Justice Department's determined efforts to avoid 
any ruling on the issue. The case, however, ultimately petered out. Mr. 
Rivas-Lopez decided to skip bail rather than find out how he would fare 
at a jury trial for drug dealing with his confession introduced in 
evidence.\160\
---------------------------------------------------------------------------
    \160\ Recently the District of Utah reaffirmed that Sec. 3501 
superceded Miranda. See United States v. Tapia-Mendoza, 1999 WL 137658 
(D. Utah Mar. 10, 1999).
---------------------------------------------------------------------------
    But the Sec. 3501 issue was destined to reach an appellate court.

           5. The end of the road? United States v. Dickerson

    The long effort to obtain an appellate court ruling on Sec. 3501 
came to a successful conclusion just a few months ago in the Fourth 
Circuit. There, the Circuit's September, 1997 ruling in Leong meant 
that only Sec. 3501 issues raised in the trial court could be 
considered on appeal. The Department's November 1997 directive against 
raising Sec. 3501 in the trial court \161\ headed off any new cases in 
which the career prosecutors might raise the statute. But the 
Department's efforts to hermetically seal off all such cases from the 
circuit was thwarted by one pending case involving the statute. United 
States v. Dickerson arose before the Department's directive against 
Sec. 3501 was promulgated. The case involved a serial bank robber, who 
had been taken into custody and interviewed by FBI agents. At the 
suppression hearing, the lead agent testified that he gave Dickerson 
his Miranda warnings, obtained a waiver, after which Dickerson made 
incriminating statements. Dickerson, on the other hand, testified that 
he gave statements in an interview, and only then was given his Miranda 
warnings. Such one-on-one ``swearing contests'' are routinely decided 
in favor of law enforcement officers, but in this case the district 
court sided with the accused bank robber.\162\ The United States 
Attorney's Office then mobilized a strong response to the district 
court opinion, filing a motion for reconsideration which contained 
affidavits from several other officers fully corroborating that 
Dickerson had been given his Miranda warnings first, consistent with 
standard FBI practice. The motion for reconsideration also specifically 
raised Sec. 3501 as a basis for admitting the statements. The district 
court, however, refused to reconsider its decision because none of 
these arguments were unavailable to the prosecutors at the time of the 
first hearing.\163\
---------------------------------------------------------------------------
    \161\ See supra note 140.
    \162\ See Memorandum Opinion, United States v. Dickerson, No. 97-
159-A (E.D. Va. July 1, 1997).
    \163\ United States v. Dickerson, 971 F. Supp. 1023 (E.D. Va. 
1997), rev'd, 166 F.3d 667 (4th Cir. 1999).
---------------------------------------------------------------------------
    Career prosecutors then filed an appeal to the Fourth Circuit, 
arguing that the district court should have reconsidered its first 
ruling in light of the subsequently-provided affidavits. In the 
meantime, the Department's new position on Sec. 3501 had been 
announced. Consistent with that policy, the brief contained a footnote, 
nothing that the government was prohibited from raising Sec. 3501 on 
appeal, consistent with the Department's announced position in Leong. 
The Washington Legal Foundation, represented by Paul Kamenar and me, 
filed an amicus brief arguing that Sec. 3501 was binding on the court, 
noting that, in contrast to Leong, Sec. 3501 had been presented to the 
trial court, albeit in a motion for reconsideration.\164\ The Fourth 
Circuit granted WLF's motion to participate in oral argument, and in 
January 1998 I traveled to Richmond and defended the statute.
---------------------------------------------------------------------------
    \164\ Brief of WLF in Support of Appellant United States, United 
States v. Dickerson, No. 97-4750 (4th Cir. Nov. 5,1997).
---------------------------------------------------------------------------
    A little more than a year later, on February 8, 1999, the Fourth 
Circuit announced its landmark opinion in the case, upholding Sec. 3501 
against constitutional attack and applying its to admit Dickerson's 
incriminating statements.\165\ In a lengthy opinion, the court held 
that ``[w]e have little difficulty concluding * * * that Sec. 3501, 
enacted at the invitation of the Supreme Court and pursuant to 
Congress's unquestioned power to establish the rules of procedure and 
evidence in federal courts, is constitutional.'' \166\ The court noted 
the absence of a defense of the statute from the Department of Justice, 
observing that the career prosecutor on the case ``had been prohibited 
by his superiors at the Department of Justice from discussing 
Sec. 3501.'' \167\ This was, the Fourth Circuit said, a decision 
``elevating politics over law. * * * Fortunately, we are a court of law 
and not politics. Thus, the Department of Justice cannot prevent us 
from deciding this case under the governing law simply by refusing to 
argue it.'' \168\ The Court also noted that for the parties to fail to 
discuss Sec. 3501 was for them to ``abdicate their responsibility to 
call relevant authority to his Court's attention,'' citing the Virginia 
Code of Professional Responsibility.\169\ Judge Michael dissented, 
arguing that the court should not have reached the issue of the 
statute's application where it was not presented by the Department of 
Justice. For purposes of this hearing, it may also be important to note 
that Judge Michael expressly stated ``Congress therefore may 
legitimately investigate why the executive has ignored Sec. 3501 and 
what the consequences are.'' \170\
---------------------------------------------------------------------------
    \165\ United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999).
    \166\ Id. at 672.
    \167\ Id. at 681 n.14.
    \168\ Id. at 672 (citing United States Nat'l Bank of Or. v. 
Independent Ins. Agents of America, Inc., 508 U.S. 439, 445-48 (1993)).
    \169\ 166 F.3d at 682 (citing Va. Code Prof. Resp. 7-20).
    Perhaps in response to this point, the Department of Justice sent 
out a memorandum to all United States Attorneys in the Fourth Circuit 
shortly after Dickerson, explaining that, in response to motions to 
suppress statements, ``prosecutors in the Fourth Circuit discharge 
their professional and ethical obligations if they call the district 
court's attention to the existence of Section 3501 and the Dickerson 
decision.'' Memorandum for all U.S. Attorneys in the Fourth Circuit 
from James K. Robinson, Asst. Attorney General (Mar. 8, 1999).
    \170\ Id. at 695-98 (Michael, J., dissenting).
---------------------------------------------------------------------------
    After the decision was handed down, Dickerson filed a petition for 
rehearing en banc,\171\ supported by the American Civil Liberties Union 
and the National Association of Criminal Defense Lawyers.\172\ The 
question then arose as to what the Department of Justice should say, 
since it had ``won'' the case, with a little help from its amicus 
friends at WLF. At this stage, too, the Department now indisputably had 
a ``reasonable'' argument on behalf of the statute--specifically the 
argument advanced by a respected Fourth Circuit Judge, Karen Williams, 
in her opinion for the Fourth Circuit. This point was made forcefully 
in a letter to the Attorney General by Chairman Orrin Hatch, Chair of 
the Senate Judiciary Committee and eight of his colleagues--Senators 
John Kyl, John Ashcroft, Bob Smith, Chuck Grassley, Mike DeWine, Strom 
Thurmond, Spence Abraham, and Jeff Sessions. The Senators found the 
Fourth Circuit's criticism of the Department for ``raising politics 
over law'' to be ``deeply troubling.'' \173\ The Senators went on to 
observe that the Department had pledged to defend Acts of Congress 
where reasonable arguments could be made: ``The Dickerson opinion 
demonstrates beyond doubt that there are `reasonable arguments' to 
defend 18 U.S.C. Sec. 3501. In fact, these arguments are so reasonable 
that they have prevailed in every court that has directly addressed 
their merits.'' \174\ Despite this letter, the Department actually 
filed a brief supporting the defendant, the ACLU, and the National 
Association of Criminal Defense Lawyers in seeking rehearing.\175\ The 
Department argued the Court's decision to apply Sec. 3501 ``is error, 
and that its holding deserves reconsideration by the full court of 
appeals.'' \176\ Of the four career prosecutors who had been handling 
the case up to that point, not one signed the Department's brief 
attacking Sec. 3501.
---------------------------------------------------------------------------
    \171\ Petition for Rehearing and Petition for Rehearing En Banc, 
United States v. Dickerson, No. 97-4750 (4th Cir. Feb. 22, 1999).
    \172\ Brief of the Am. Civil Liberties Union in Support of 
Rehearing, United States v. Dickerson, No. 97-4750 (Feb. 20, 1999); 
Brief Amicus Curiae of the Nat'l Assoc. of Criminal Defense Lawyers in 
Support of Defendant-Appellee's Petition for Rehearing, United States 
v. Dickerson, No. 97-4750 (Feb. 22, 1999).
    \173\ Letter from Senator Orrin Hatch and eight members of the 
Senate Judiciary Comm. to Attorney General Reno at 2 (Mar. 4, 1999).
    \174\ Id.
    \175\ Br. for the United States in Support of Partial Rehearing En 
Banc, United States v. Dickerson, No. 97-4750 (Mar. 8, 1999).
    \176\ Id. at 6.
---------------------------------------------------------------------------
    WLF filed a reply to all this, explaining that not only was the 
panel decision correct on the merits but that it made little sense to 
review the matter en banc. Because the Clinton Justice Departnent had 
always said that it might take a different position on Sec. 3 501 in 
the Supreme Court, it made sense to leave the case where it was: 
``Where a question seems important enough to warrant Supreme Court 
review in any event, and where one of the parties to a case has 
announced that it is planning on presenting a position to this Court 
that may change once the case is before the Supreme Court, it is almost 
impossible to see why the en banc court should spend its resources on 
the case.'' \177\ On April 1, 1999, the full Fourth Circuit voted 8-5 
to deny rehearing en banc.
---------------------------------------------------------------------------
    \177\ Brief of the WLF as Amicus Curiae in Opposition to Petition 
for Rehearing at 3-4, United States v. Dickerson, No. 97-4750 (Mar. 19, 
1999).
---------------------------------------------------------------------------
    As of this writing, Dickerson will apparently file a petition for 
certiorari to the United States Supreme Court over the summer. A 
Supreme Court decision on whether to review the case will be made 
around October 1, with many observers predicting the Court will take 
the case.
    If the Court grants certiorari, the current Administration may 
finally have the long-awaiting ``appropriate'' case for defending 
Sec. 3501, returning to the position that the Department took from at 
least from 1969 through 1993. The recent pleadings of the Department 
have always hedged refusals to defend that statute in the lower court 
with the suggestion that things would be different in the Supreme 
Court. The Department's brief in Leong, for example, stated: ``Should 
the issue of Sec. 3501's validity * * * be presented to the Supreme 
Court * * * the same considerations would not control, since the 
Supreme Court (unlike the lower courts) is free to reconsider its prior 
decisions, and the Department of Justice is free to urge it to do so.'' 
\178\ This statement gives every reason for believing that, in the 
Supreme Court, the Department will craft some sort of defense of the 
statute involving reconsideration of prior court decisions. There is no 
need for such complicated argumentation. Section 3501 is fully 
constitutional under the Supreme Court's current jurisprudence, as the 
following section explains.
---------------------------------------------------------------------------
    \178\ Id. at 7.
---------------------------------------------------------------------------

            II. Section 3501 Complies with the Constitution

    Section 3501 is a constitutional exercise of Congressional power, 
under at least two different theories. First, as the Dickerson opinion 
explains, the Miranda rules are not constitutionally required and thus 
can be overridden by Congress. A second, independent argument, not 
needed and therefore not discussed in the Dickerson opinion, is that 
Sec. 3501 is a reasonable ``alternative'' to Miranda, an alternative 
that accepts the invitation from the Court itself for Congress to draft 
alternative measures governing confessions. Both of these arguments are 
explained below.
    Before turning to the specific legal arguments, however, it is 
important to recognize that Congress has itself made a determination 
that the Act is constitutional. While the final say on this issue is in 
the hands of the Supreme Court, that congressional determination is 
itself important evidence of the constitutionality of the statute. It 
is for this reason that, when a party calls into question the 
constitutionality of an Act of Congress, a federal court assumes ``the 
gravest and most delicate duty [an appellate court] is called on to 
perform.'' \179\ The views of the people, through their elected 
representatives, deserve important consideration.
---------------------------------------------------------------------------
    \179\ Fullilove v. Klutzaick, 448 U.S. 448, 472 (1980).
---------------------------------------------------------------------------
      a. section 3501 is constitutionally valid as an exercise of 
  congressional power to establish rules of evidence for federal court

 1. Congress has the power to establish rules of evidence for federal 
                                 court

    The Supreme Court has described Sec. 3501 as ``the statute 
governing the admissibility of confessions in federal prosecutions.'' 
\180\ The rules the statues establishes, of course, differ from those 
set by Miranda. But it is generally accepted that unless the rules are 
unconstitutional, Congress has the final say regarding the rules of 
evidence and procedure in federal courts. For example, the Supreme 
Court upheld congressional modification of a Court-promulgated rule 
concerning production of impeaching materials on government witnesses, 
explaining that ``[t]he statute as interpreted does not reach any 
constitutional barrier.'' \181\ The Court specifically went out of its 
way to explain that Congress may trump even a conflicting Supreme Court 
procedural or evidentiary rule, so long as the Court-imposed rule was 
not required by the Constitution, noting that ``[t]he power of this 
Court to prescribe rules of procedure and evidence for the federal 
courts exists only in the absence of a relevant Act of Congress.'' 
\182\
---------------------------------------------------------------------------
    \180\ United States v. Alvarez-Sanchez, 511 U.S. 350, 351 (1994).
    \181\ Palermo v. United States, 360 U.S. 343, 353 n.11 (1959).
    \182\ Id. see generally Grano, supra note 24, at 173-222.
---------------------------------------------------------------------------
    The validity of Sec. 3501, therefore, boils down to whether the 
Miranda exclusionary rule is required by the Constitution. ``If it 
is,'' the Dickerson opinion observed, ``Congress lacked the authority 
to enact Sec. 3501, and Miranda continues to control the admissibility 
of confessions in fedeal court. If it is not required by the 
Constitution, then Congress possesses the authority to supersede 
Miranda legislatively, and Sec. 3501 controls the admissibility of 
confessions in federal court.'' \183\
---------------------------------------------------------------------------
    \183\ Dickerson, 166 F.3d at 688.
---------------------------------------------------------------------------

          2. The Miranda rights are not constitutional rights

    There can be little doubt that Miranda rights are not 
constitutional rights. The Supreme Court has emphasized that the 
Miranda procedures are not themselves constitutional rights or 
requirements. Rather, they are only ``recommended procedural 
safeguards'' \184\ whose purpose is to reduce the risk that the Fifth 
Amendment's prohibition of compelled self-incrimination will be 
violated in custodial questioning. Quite simply, to violate any aspect 
of Miranda is not necessarily--or even usually--to violate the 
Constitution.
---------------------------------------------------------------------------
    \184\ Davis v. United States, 512 U.S. 452, 457-58 (1994) (internal 
quotation omitted).
---------------------------------------------------------------------------
    There can be no doubt that the Supreme Court, in a series of cases 
starting in the early 1970's, has repeatedly described the Miranda 
warnings as mere prophylactic rights that are ``not themselves rights 
protected by the Constitution'' \185\ and has relied on that 
characterization in refusing to exclude unwarned or imperfectly warned 
custodial confessions and their fruits in a variety of contexts. 
Because this has been by far the dominant Supreme Court 
characterization of Miranda's holding, and because that 
characterization has been necessary to, and the principal basis for, 
these cases' holdings, no more is needed to demonstrate that Miranda's 
exclusionary rule is not constitutionally mandated. If that is so, 
Miranda provides no basis for doubting Sec. 3501's constitutionality, 
which requires only the admission of ``voluntary'' confessions, that 
is, confessions obtained without violating the Fifth Amendment's 
prohibition against compelled self-incriminating testimony.\186\
---------------------------------------------------------------------------
    \185\ Michigan v. Tucker, 417 U.S. 433, 444 (1974).
    \186\ Many commentators have concluded that Sec. 3501 is 
constitutional on similar reasoning. Joseph Grano, Confessions, Truth, 
and the Law 203 (1993); Joshua Dressler, Understanding Criminal 
Procedure 295 (1991); Paul G. Cassell, Miranda's Social Costs: An 
Empirical Reassessment, 90 NW. U. L. Rev. 387, 471-72 (1996); Stephen 
J. Markman, The Fifth Amendment and Custodial Questioning: A Response 
to ``Reconsidering Miranda'', 54 U. Chi. L. Rev. 938, 948 (1987); 
Phillip Johnson, A Statutory Replacement for the Miranda Doctrine, 24 
Am. Crim. L. Rev. 303, 307 n.8 (1987); Bruce Fein, Congressional and 
Executive Challenge of Miranda v. Arizona, in Crime and Punishment in 
Modern America 171, 180 (P. McGuigan & J. Pascale eds. 1986); Gerald 
Caplan, Questioning Miranda, 38 Vand. L. Rev. 1417, 1475 & n.271 
(1985).
---------------------------------------------------------------------------
    It is important to emphasize that the view that Miranda rights are 
not constitutionally required is not some ``gloss'' or ``spin'' on the 
Supreme Court's opinions, but rather the way that the Supreme Court 
itself has described Miranda rights. The Court has regularly said in 
cases since Miranda that the procedures it laid down there were not 
required by the Constitution, but rather were prophylactic rules 
designed to add extra layers of protection beyond those required by the 
Constitution. In Davis v. United States, for example, the Court 
referred to Miranda warnings as ``a series of recommended procedural 
safeguards.'' \187\ In Withrow v. Williams, the Court acknowledged that 
``Miranda's safeguards are not constitutional in character.'' \188\ In 
Duckworth v. Eagan, the Court said ``[t]he prophylactic Miranda 
warnings are not themselves rights protected by the Constitution but 
are instead measure to insure that that the right against compulsory 
self-incrimination is protected.'' \189\ In Oregon v. Elstad, the Court 
explained that the Miranda exclusionary rule ``may be triggered even in 
the absence of a Fifth Amendment violation.'' \190\
---------------------------------------------------------------------------
    \187\ 512 U.S. 452, 457-58 (1994).
    \188\ 507 U.S. 680, 690-91 (1993).
    \189\ 492 U.S. 195, 203 (1989) (internal quotation omitted).
    \190\ 470 U.S. 298, 306 (1985); accord Connecticut v. Barrett, 479 
U.S. 523, 528 (1987) (noting that ``the Miranda Court adopted 
prophylactic rules designed to insulate the exercise of Fifth Amendment 
rights ''); Moran v. Burbine, 475 U.S. 412, 422 (1986) (``As is now 
well established, the * * * Miranda warnings are not themselves rights 
protected by the Constitution but [are] instead measure to insure that 
the [suspect's] right against compulsory self-incrimination [is] 
protected.'' (internal quotation omitted); Michigan v. Tucker, 417 U.S. 
433, 444 (1974) (Miranda warnings are ``not themselves rights protected 
by the Constitution''); see also Edwards v. Arizona, 451 U.S. 477, 492 
(1981) (Powell, J., concurring) (noting that the Court in Miranda 
``imposed a general prophylactic rule that is not manifestly required 
by anything in the text of the Constitution'').
---------------------------------------------------------------------------
    Such statements are not idle dicta, but rather a critical part of 
the Court's holdings. A prime illustration is New York v. Quarles,\191\ 
where the Court ruled that a confession obtained as a result of a 
police question ``Where's the gun?,'' asked of a person with an empty 
gun holster suspected of having just committed a rape, was admissible 
despite the failure to give Miranda warnings. Similarly, in Harris v. 
New York,\192\ and Oregon v. Hass,\193\ the Court held that an un-
Mirandized confession, obtained where police questioning continued 
after a suspect said he would like to call a lawyer, could be used to 
impeach the testimony of a defendant who took the stand at his own 
trial. The basis the Court gave for these rulings is that Miranda's 
exclusionary rule is not constitutionally required, and hence un-
Mirandized confessions may constitutionally be admitted provided they 
are voluntary. All of these cases, among others, would have to be 
overruled if Miranda's procedures were now held to be constitutionally 
required rather than prophylactic. If a defendant's failure to be given 
Miranda warnings meant that the defendant had thereby automatically 
been ``compelled'' to confess, any use of his confession at trial, 
including the ones allowed by the Court in Quarles, Harris, and Hass, 
would be forbidden by the 5th Amendment of the Constitution, since it 
bars any use at trial of compelled self-incrimination of any kind. The 
Fifth Amendment provides: ``No person * * * shall be compelled in any 
criminal case to be a witness against himself.'' And indeed, the 
Supreme Court has concluded that the Fifth and Fourteenth Amendment 
forbid the use of involuntary confessions even for impeachment 
purposes, distinguishing Harris and Hass as involving confessions 
obtained after mere Miranda violations rather than confessions obtained 
in violation of the Constitution.\194\ Accordingly, the Supreme Court's 
admission of un-Mirandized statements in Quarles, Harris, and Hass 
proves beyond argument that Miranda warnings are not required by the 
Constitution, as every federal court of appeals in the country has 
concluded.\195\ And the proposition that the procedures set out in 
Miranda are not required by the Constitution is the view that every 
Administration including this one has consistently taken in litigation 
throughout the federal court system since Miranda was decided.\196\
---------------------------------------------------------------------------
    \191\ 467 U.S. 649, 654 (1984).
    \192\ 401 U.S. 222, 224 (1971).
    \193\ 420 U.S. 714, 722 (1975).
    \194\ See New Jersey v. Portash, 440 U.S. 450, 458-59 (1979); 
Mincey v. Arizona, 437 U.S. 385, 397 (1978).
    \195\ Mahan v. Plymounth County House of Corrections, 64 F.3d 14, 
17 (1st Cir. 1995); DeShawn v. Safir, 156 F.3d 340, 346 (2d Cir. 1998); 
Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994); United States v. 
Elie, 111 F.3d 1135, 1142 (4th Cir. 1997); United States v. Abrago, 141 
F.3d 142, 168-70 (5th Cir), cert. denied, 119 S.Ct. 182 (1998); United 
States v. Davis, 919 F.2d 1181, 1186 (6th Cir. 1990), reh'g en ban 
denied, 1991 U.S. App. Lexis 3934; Clay v. Brown, 1998 U.S. App. Lexis 
17115, reported in table format, 151 F.3d 1032 (7th Cir.); Winsett v. 
Washington, 130 F.3d 269, 274 (7th Cir. 1997); Warren v. City of 
Lincoln, 864 F.2d 1436, 1441-42 (8th Cir. en banc), cert. denied, 490 
U.S. 1091 (1989); United States v. Lemon, 550 F.2d 467, 472-73 (9th 
Cir. 1977); Lucero v. Gunter, 17 F.3d 1347, 135-51 (10th Cir. 1994); 
Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir. 1976).
    \196\ See City of Boerne v. Flores, No. 95-2074, Brief for the 
United States (Miranda cited as an example of judicially created 
prophylactic rules that ``enforce'' constitutional guarantees but ``are 
not constitutionally compelled''); Transcript of Oral Argument Davis v. 
United States, (Question from one of the Justices: ``Is Miranda 
required by the Fifth Amendment? I thought it wasn't required. Have we 
said it's required by the Fifth Amendment?'' Response of Assistant to 
the Solicitor General Seamon, speaking on behalf of the Clinton 
Department of Justice: ``No, this Court has repeatedly made clear that 
the Miranda rules are prophylactic''); Withrow v. Williams No. 91-1030, 
Brief for the United States as Amicus Curiae Supporting Petitioner 
(statements admitted despite Miranda violations should not serve as a 
basis for grants of habeas, in part because admission of such 
statements did not violate the Constitution); see also United States v. 
Green, No. 91-1521, Brief for the United States; Minnick v. 
Mississippi, No. 89-6332, Brief for the United States as Amicus Curiae 
Supporting Petitioner; Michigan v. Harvey, No. 88-512, Brief for the 
United States as Amicus Curiae Supporting Petitioner; Arizona v. 
Roberson, No. 87-354, Brief for the United States as Amicus Curiae 
Supporting Petitioner; New York v. Quarles, No. 82-1213, Brief for the 
United States as Amicus Curiae Supporting Petitioner; Hearing on the 
Confirmation of Seth Waxman as Solicitor General, Committee on the 
Judiciary, United States Senate, November 5, 1997 at 101 (``It is my 
understanding of Miranda, and of the Supreme Court's further 
jurisprudence in this field, that the Miranda warnings themselves were 
not ever regarded as direct requirements compelled by the 
Constitution.'' Conversely, I am aware of no case argued in the past 
nineteen Supreme Court term (which is as far back as the Lexis data 
base containing Supreme Court briefs goes) where the Department has 
taken the position in the Supreme Court that the Miranda procedures are 
constitutionally required.
---------------------------------------------------------------------------
    All of this demonstrates quite clearly that a violation of the 
Fifth Amendment is not conclusively presumed to be present when Miranda 
is violated. Instead, actual compulsion in violation of the Fifth 
Amendment exists only where law enforcement has transgressed the 
standards established by the traditional voluntariness test.\197\ In 
the absence of such compulsion, there is no constitutional impediment 
to admitting a suspect's statements despite non-compliance with 
Miranda.\198\
---------------------------------------------------------------------------
    \197\ See New York v. Quarles, 467 U.S. at 654-55 & n.5, 658 n.7; 
Oregon v. Elstad, 470 U.S. at 306-09; Michigan v. Tucker, 417 U.S. at 
444-45
    \198\ See Davis v. United States, 512 U.S. at 458; New York v. 
Quarles, 467 U.S. at 654-55 & n.5, 658 n.7.
---------------------------------------------------------------------------

 3. Arguments against the constitutionality of Sec. 3501 are misplaced

    The opponents of Sec. 3501 typically acknowledge that there is 
considerable force to this argument. Nevertheless, they claim, Congress 
may not overrule Miranda by statute because to do so would be to 
violate the Constitution. The problem with this position is that it 
only works if Miranda is indeed a constitutional decision in the 
strongest sense of the word. If Miranda is anything else--if it is, for 
example, a decision rooted in the Court's quasi-supervisory powers or 
the Court's ability to craft constitutional common law (in which the 
Court devised one form of remedy to guard against Fifth Amendment 
violations but acknowledged that that remedy could be replaced with an 
alternative)--Congress has significant authority to modify Miranda's 
holding by legislation.
    To be sure, if the Supreme Court had really foreclosed any reading 
of Miranda other than that its holding is constitutionally required, 
there would be no basis for considering possible application of 
Sec. 3501. However, one need not guess about whether the Supreme Court 
views that question as open or closed. The Supreme Court has said it is 
open. As noted earlier,\199\ in United States v. Davis\200\ WLF filed 
an amicus brief in the Supreme Court, urging the Court to apply 
Sec. 3501 instead of Miranda. Far from suggesting that precedent 
controlled the issue, the Court explained ``the issue is one of first 
impression.'' \201\ The Court ultimately concluded that it would not 
decide the matter because it was ``reluctant to do so when the issue is 
one of first impression involving the interpretation of a federal 
statute on which the Department of Justice expressly declines to take a 
position.'' \202\ This led to a concurring opinion from Justice Scalia, 
who consistently with the majority said he was ``entirely open'' to 
various arguments on Sec. 3501.\203\ Also worthy of note is United 
States v. Alvarez-Sanchez.\204\ In that case, which, to be sure, did 
not involve a custodial confession, the Court identified Sec. 3501 
without qualification as ``the statute governing the admissibility of 
confessions in federal prosecutions.'' \205\ Nor are Alvarez-Sanchez 
and Davis the only cases by the Supreme Court citing Sec. 3501. 
Although Miranda-related cases decided by the Court in recent years 
have generally involved state proceedings to which Sec. 3501 does not 
apply, the Court has cited Sec. 3501 in several of them without any 
indication of constitutional infirmity.\206\
---------------------------------------------------------------------------
    \199\ See supra note 79 and accompanying text.
    \200\ 512 U.S. 452 (1994).
    \201\ Id. at 457 n.* (emphasis added).
    \202\ Id. at 457-58 n.*.
    \203\ Id. at 464 (Scalia, J., concurring).
    \204\ 511 U.S. 350 (1994).
    \205\ 511 U.S. at 351.
    \206\ See, e.g., Crane v. Kentucky, 476 U.S. 683, 689 (1986); 
United States v. Raddatz, 447 U.S. 667, 678 (1980); Brown v. Illinois, 
422 U.S. 590, 604 (1975); Keeble v. United States, 412 U.S. 205, 208 
n.3 (1973). Indeed, in one case, the Court's opinion seems to have gone 
out of its way to cite Sec. 3501. See Lego v. Twomey, 404 U.S. 477, 486 
n.14 (1972) (quoting Sec. 3501 in full).
---------------------------------------------------------------------------
    All of this suggests that the arguments of the opponents of 
Sec. 3501 are not well taken. The following subsections deal with some 
of their arguments in particular.
a. Viewing Miranda rights as not constitutionally required is 
        consistent with the Miranda opinion itself
    The Supreme Court's post-Miranda decisions repeatedly not only 
state but hold that that case's procedural prerequisites for admitting 
a custodial confession in the government's case in chief are 
``prophylactic''--meaning that a police violation of Miranda is not 
necessarily a violation of the Fifth Amendment and thus that Miranda's 
rule barring admission of such confessions is not constitutionally 
required. In arguing against Sec. 3501, the Department of Justice 
concedes as much but contends that these cases should be ignored 
because they have ``retreated'' from the reasoning in Miranda.\207\ In 
fact, the Miranda opinion itself easily lent itself to this 
prophylactic reading. As Dickerson explains,
---------------------------------------------------------------------------
    \207\ Supp. Brief for the U.S. at, United States v. Leong, No. 97-
4876 (4th Cir. 1997).

          Although the Court failed to specifically state the basis for 
        its holding in Miranda, it did specifically state what the 
        basis was not. At no point does the Court refer to the warnings 
        as constitutional rights. Indeed, the Court acknowledged that 
        the Constitution did not require the warnings, disclaimed any 
        intent to create a ``constitutional straitjacket,'' repeatedly 
        referred to the warnings as ``procedural safeguards,'' and 
        invited Congress and the states ``to develop their own 
        safeguards for [protecting] the privilege.'' \208\
---------------------------------------------------------------------------
    \208\ Dickerson, 166 F.3d at 688-89 (quoting Miranda).

To be sure, the Miranda opinion contains some language that can be read 
as suggesting that a Miranda violation is a constitutional violation 
because custodial interrogation is inherently compulsive.\209\ But 
notwithstanding this inherent compulsion rationale--which would make 
every statement taken without Miranda warnings compelled and every case 
admitting a custodial confession as voluntary both before and after 
Miranda wrongly decided--much of the opinion is written in the language 
of prophylaxis. At various points, the Court spoke of the 
``potentiality'' of compulsion and the need for ``appropriate 
safeguards'' ``to insure'' that statements were the product of free 
choice, as well as the possibility of Fifth Amendment rights being 
``jeopardized'' (not actually violated) by custodial 
interrogation.\210\ Potential compulsion is of course different than 
inherent compulsion; jeopardizing Fifth Amendment rights is different 
from actually violating them; and assuring that Fifth Amendment rights 
are protected is different from concluding that Fifth Amendment rights 
actually have been infringed. This rationale is, therefore, 
prophylactic precisely in the sense the more recent cases have used 
that term.
---------------------------------------------------------------------------
    \209\ See Miranda, 364 U.S. at 458, 467.
    \210\ 384 U.S. at 457, 479.
---------------------------------------------------------------------------
    The Court also said that ``[u]nless a proper limitation upon 
custodial interrogation is achieved--such as these decisions will 
advance--there can be no assurance that practices of this nature 
[practices gleaned from police interrogation manuals, not from the 
records in the four cases before the Court] will be eradicated in the 
foreseeable future.'' \211\ A prophylactic rule, of course, seeks to 
prevent constitutional violations in future cases rather than to 
discover whether a constitutional violation actually occurred in the 
case at hand.
---------------------------------------------------------------------------
    \211\ Id. at 447.
---------------------------------------------------------------------------
    The Miranda Court's treatment of the four cases before it is also 
illuminating. First, the Court did not turn to the facts of the cases 
until it had devoted more than fifty pages to a summary of its holding, 
a history of the Fifth Amendment, a survey of police manuals, an 
elaboration of its holding, and ``a miscellany of minor directives,'' 
\212\ not actually involved in the cases. This total neglect of the 
facts is itself an indication that the Court was not interested in the 
actual constitutionality of what had occurred. When it finally turned 
to the facts, the Court spent only eight pages in concluding that all 
the confessions had been obtained in violation of its new rules. In 
three of the cases, including Miranda's, the Court gave no indication 
that the defendant's statements had been compelled. Rather, it rejected 
the confessions because no ``steps'' had been taken to protect Fifth 
Amendment rights.\213\ Only in defendant Stewart's case did the Court 
suggest the existence of actual compulsion.\214\
---------------------------------------------------------------------------
    \212\ Id. at 505 (Harlan, J., dissenting)
    \213\ Id. at 492, 494.
    \214\ Id. at 499.
---------------------------------------------------------------------------
    To reject a prophylactic reading would defy not only common sense, 
but also empirical recent observation that ``very few incriminating 
statements, custodial or otherwise, are held to be involuntary.'' \215\ 
To violate Miranda is not necessarily to violate the Constitution--and, 
although ambiguous in spots, Miranda recognized this from the 
beginning.\216\ And the Department of Justice, at least until quite 
recently, seemed to recognize this as well.\217\
---------------------------------------------------------------------------
    \215\ United States v. Elie, 111 F.3d 1135, 1144 (4th Cir. 1997) 
(internal quotation omitted).
    \216\ See generally Grano, supra note 24, at 173-182.
    \217\ See, e.g., Br. for the United States as Amicus Curiae, 
Withrow v. Williams, No. 91-1030 (1992) (arguing against habeas review 
of Miranda claims and explaining that ``the most important factor'' is 
``that `the Miranda rule is not, nor did it ever claim to be, a dictate 
of the Fifth Amendment itself' '' (emphasis added) (quoting Duckworth 
v. Eagan, 492 U.S. 195, 209 (1989) (O'Connor, J., concurring)).
---------------------------------------------------------------------------
b. The Supreme Court's application of Miranda to the states does not 
        demonstrate that Miranda rights are constitutional rights
    The Justice Department's current refusal to defend Sec. 3501 rests 
primarily on Miranda application to the states. The Department has said 
that ``[t]he most important indication that the Court does not regard 
Miranda as resting simply on its supervisory powers is the fact that 
the Court has continued to apply the Miranda rules to cases arising in 
state courts.'' \218\ The basis for Miranda's applicability to the 
states is interesting and (as the Department itself has explained) 
perplexing.\219\ Nevertheless, there is no need to come to a definitive 
conclusion when considering Sec. 3501, provided that there are 
explanations available other than that Miranda's exclusionary rule is 
constitutionally required.
---------------------------------------------------------------------------
    \218\ Supp. Br. for the U.S. at 18, United States v. Leong, No. 
Xxxx (4th Cir. 1997).
    \219\ See U.S. Dept's of Justice, Office of Legal Policy, Report to 
the Attorney General on the Law of Pre-Trial Interrogation (1986), 
reprinted in 22 U. Mich. J.L. Ref. 437, 550; see also Oregon v. Elstad, 
470 U.S. 298, 370 & 371 n.15 (1985) (Stevens, J., dissenting); J. 
Grano, Confessions, Truth, and the Law 183-198 (1993); United States v. 
Dickerson, 166 F.3d 667, 691 n.21 (4th Cir. 1999) (how Miranda applies 
to the states is ``an interesting academic question).
---------------------------------------------------------------------------
    Several others come readily to mind. First, and most plausibly, 
like Mapp v. Ohio,\220\ and Bivens v. Six Unknown Named Agents,\221\ 
Miranda may be a constitutional common law decision. In such cases, the 
Court is presented with an issue implicating a constitutional right for 
whose violation there is no legislatively specified remedy. It is 
conceivable that generally in such circumstances the judicial power may 
include the crafting of a remedy, and that the remedy may extend beyond 
simply redressing the constitutional violation. It is clear, however, 
that exercising its powers, Congress may step in and substitute an 
alternative remedy that sweeps more or less broadly, provided the 
substitute remedy is adequate to correct the violation.\222\ It is also 
entirely possible that the States may do so as well. This theory 
(unlike the position of the Department) is consistent with the 
suggestion made by the Miranda Court itself that the national and State 
legislatures may substitute alternative remedial schemes for the one 
set out in Miranda. Unlike this case, none of the State cases decided 
since Miranda have involved an effort by Congress or the States to 
modify through legislation the scope of the remedy created by Miranda. 
Thus the continued application of Miranda to the States in the absence 
of such a legislative effort may represent no more than the application 
of the Court's judicially-created, but not constitutionally mandated, 
remedial scheme in the absence of a legislatively devised alternative.
---------------------------------------------------------------------------
    \220\ 367 U.S. 643 (1961).
    \221\ 403 U.S. 388 (1971).
    \222\ See Bush v. Lucas, 462 U.S. 367, 377 (1983).
---------------------------------------------------------------------------
    Second, the Miranda court may not have focused on the question 
whether the federal courts have supervisory power over the States. It 
was, after all, resolving a slew of other important issues. Since 
Miranda came down, no case has arisen where a party has seriously 
presented to the Court the question whether Miranda's prophylactic 
approach can be reconciled with the Court's cases holding that the 
federal courts lack supervisory power over the States.
    Let there be no mistake about it, however. Both in state and 
federal cases, the Court has described Miranda as prophylactic. In 
Oregon v. Elstad, for example, the Court, in response to Justice 
Stevens, said most directly that ``a failure to administer Miranda 
warnings is not itself a violation of the Fifth Amendment.'' \223\ To 
uphold Sec. 3501 in a federal case, therefore, the Supreme Court need 
go no further than recognize congressional power to supercede rules 
that are not constitutionally required.
---------------------------------------------------------------------------
    \223\ 470 U.S. 298, 306 n.1 (1985). Accord, e.g., New York v. 
Quarles, 467 U.S. 649, 655 n.5 (1984).
---------------------------------------------------------------------------
c. Miranda's applicability in federal habeas corpus does not mean it is 
        a constitutional right
    The Justice Department has additionally claimed that Miranda's 
constitutional status is supported by the fact that Miranda claims were 
held to be cognizable in federal habeas corpus proceedings in Withrow 
v. Williams,\224\ This argument, too, misses the mark.
---------------------------------------------------------------------------
    \224\ 507 U.S. 680 (1993). See Supp. Br. for the U.S. at 19, United 
States v. Leong, No-97-4876 (4th Cir. 1997).
---------------------------------------------------------------------------
    Habeas corpus extends to persons who are in custody ``in violation 
of the Constitution or the laws or treaties of the United States'' 
\225\ The Department reasons (without further explanation) that 
``[b]ecause Miranda is not a `law' or a treaty, the Court's holding in 
Withrow depends * * * on the conclusion that'' Miranda is a 
constitutional right.\226\ The Department must be aware, however, that 
what is a ``law'' for purposes of federal habeas review is not 
exclusively limited to federal statutory claims.\227\ This has led a 
leading commentator to conclude that Miranda claims raise issues about 
a ``law'' of the United States.\228\
---------------------------------------------------------------------------
    \225\ 28 U.S.C. Sec. 2254(a).
    \226\ Supp. Br. for the U.S. at 19, United States v. Leong, No.97-
4876 (4th Cir. 1997).
    \227\ See, e.g., Bush v. Muncy, 659 F.2d 402 (4th Cir. 1981) 
(finding interstate compact on detainer procedures to be ``a law of the 
United States within the meaning of section 2254''). See generally 
Davis v. United States, 417 U.S. 333, 346 (1974) (recognizing that a 
``fundamental defect'' can be reviewed on habeas); see also Erie 
Railroad Co. v. Tompkins, 304 U.S. 64 (1938) (phrase ``laws of the 
several States'' in Rules of Decision Act includes the States' judicial 
decisional law).
    \228\ See Larry W. Yackle, Post Conviction Remedies Sec. 97, at 371 
(1981 & 1996 Sapp.) (``If court-fashioned rules for the enforcement of 
constitutional rights are not themselves part and parcel of these 
rights, they would seem to be federal `laws' which, under the statute, 
may form the basis for habeas relief'').
---------------------------------------------------------------------------
    Of course, we do not know precisely what jurisdictional basis 
Withrow relied upon, because that issue was not before the Court and 
the majority specifically wrote to chide the dissent for addressing a 
point which ``goes beyond the question on which we granted 
certiorari.'' \229\ In any event, the question surrounding Sec. 3501 is 
whether Miranda is ordinary constitutional law or something akin to 
common law, which can be overruled by Congress. Either way, Miranda is 
cognizable in federal habeas corpus and Withrow is unilluminating.
---------------------------------------------------------------------------
    \229\ 507 U.S. at 685 n.2.
---------------------------------------------------------------------------
    Withrow also did not change the Court's view of Miranda as 
prophylactic. The Court in fact accepted the petitioner's premise 
(supported by the Department as amicus curiae) that the Miranda 
safeguards are ``not constitutional in character, but merely 
`prophylactic,' '' but it rejected her conclusion that for that reason 
Miranda issues should not be cognizable in habeas corpus.\230\ The 
Court conceded that Miranda might require suppression of a confession 
that was not involuntary,\231\ the reason the decision has been called 
prophylactic. The Withrow Court nonetheless allowed Miranda claims to 
be cognizable in habeas corpus for largely prudential reasons.\232\ In 
short, Withrow in no way detracts from Miranda's stature as merely 
prophylactic and not constitutionally required. Whatever small doubt 
there may have been on this point was erased the following year, when 
the Court repeated (in its most recent discussion of the status of the 
Miranda rules) that they are ``not themselves rights protected by the 
Constitution.'' \233\
---------------------------------------------------------------------------
    \230\ 507 U.S. at 690.
    \231\ Id.
    \232\ Id. at 691-94.
    \233\ Davis v. United States, 512 U.S. at 457 (internal citation 
omitted).
---------------------------------------------------------------------------
  b. section 3501, read in combination with other bodies of law, is a 
    constitutionally adequate alternative to the inflexible miranda 
                           exclusionary rule
    The foregoing argument establishes that Sec. 3501 is a valid 
exercise of Congress undoubted power to override non-constitutional 
procedures and establish the rules for federal courts. But an 
alternative, independent analysis leads to exactly the same conclusion: 
section 3501--read in combination with other bodies of law providing 
criminal, civil, and administrative remedies for coercion during 
interrogation along with the Fifth Amendment's exclusionary rule for 
coerced confessions--leaves in place a constitutionally adequate 
alternative to the inflexible Miranda exclusionary rule.
    In Miranda itself, the Supreme Court specifically wrote to 
``encourage Congress and the States to continue their laudable search 
for increasingly effective ways of protecting the rights of the 
individual while promoting efficient enforcement of our criminal 
laws.'' \234\ The Court explained:
---------------------------------------------------------------------------
    \234\ 384 U.S. at 467 (emphasis added).

        i[t] is impossible for us to foresee the potential alternatives 
        for protecting the privilege which might be devised by Congress 
        and the States in the exercise of their creative rule-making 
        capacities. Therefore, we cannot say that the Constitution 
        necessarily requires adherence to any particular solution for 
        the inherent compulsions of the interrogation process as it is 
        presently conducted. Our decision in no way creates a 
        constitutional straitjacket which will handicap sound efforts 
        at reform, nor is it intended to have that effect.\235\
---------------------------------------------------------------------------
    \235\ Miranda, 384 U.S. at 467 (emphasis added).

The Court concluded that, if it were ``shown other procedures which are 
at least as effective in appraising accused persons of their right of 
silence and in assuring a continuous opportunity to exercise it,'' the 
Miranda safeguards could simply be dispensed with.\236\
---------------------------------------------------------------------------
    \236\ Id.; see also United States v. Elie, 111 F.3d at 1142 
(Miranda ``disclaim[ed] any intent to create a `constitutional 
straitjacket' '') (quoting 384 U.S. at 467). This fact by itself 
provides a striking reason to view Miranda as a non-constitutional 
decision. Cf. City of Boerne v. Hores, 521 U.S. 507,--(1997) (``When 
the Court has interpreted the Constitution, it has acted within the 
province of the Judicial Branch'').
---------------------------------------------------------------------------
    The Justice Department has attempted to make short work of the 
possibility that Sec. 3501 could be upheld on this basis, concluding 
briefly in some of its court pleadings that ``Congress cannot be deemed 
to have taken advantage of'' this invitation to develop alternatives 
because ``Congress simply relegated warnings back to their pre-Miranda 
status'' \237\ This argument is misleading in at least two ways.
---------------------------------------------------------------------------
    \237\ Supp. Br. for the U.S. at 13, United States v. Leong, No. 96-
4876 (4th Cir. 1997).
---------------------------------------------------------------------------
    First, in some respects the statute extends beyond the pre-Miranda 
voluntariness law that existed before 1966 and beyond current Supreme 
Court Miranda doctrine today.\238\ For example, section b(2) of the 
statute requires the suppression judge to consider whether the 
``defendant knew the nature of the offense with which he was charged or 
of which he was suspected at the time of the confession.'' \239\ This 
requirement actually extends beyond current case law, as the Supreme 
Court has held that a suspect can waive his Miranda rights even if he 
does not know the offense about which he is being questioned. In 
Colorado v. Spring, the court concluded that the failure of police to 
inform a suspect ``of the subject matter of the interrogation could not 
affect [his] decision to waive his Fifth Amendment privilege in a 
constitutionally significant manner.'' \240\ Extending beyond the 
Spring decision, section (b)(2) makes the subject matter of the 
interrogation a relevant factor in determining whether to admit the 
statement.
---------------------------------------------------------------------------
    \238\ I am indebted to my friend, Professor George C. Thomas III, 
for several of these arguments, which appear in his interesting article 
2001: The End of the Road for Miranda v. Arizona? (manuscript current 
circulating for publication).
    \239\ 18 U.S.C. Sec. 3501(b)(2).
    \240\ 479 U.S. 564, 577 (1987).
---------------------------------------------------------------------------
    Section 3501(b)(3) also requires consideration of ``whether or not 
such defendant was advised or knew that he was not required to make any 
statement and that any statement could be used against him.'' \241\ 
This section is broader than pre-Miranda law in implicitly recognizing 
that a suspect does not have to make any statements during police 
questioning, a position that critics of pre-Miranda case law had long 
espoused. Section (b)(3) extends well beyond pre-Miranda case law with 
its apparent statutory recognition of a right to counsel during 
interrogation. Section 3501(b)(4) requires consideration of ``whether 
or not such defendant had been advised prior to questioning of his 
right to the assistance of counsel.'' \242\ And (b)(4) further requires 
consideration of ``whether or not such defendant was without the 
assistance of counsel when questioning and when giving such 
confession.'' Before Miranda, no right to assistance of counsel existed 
during police questioning. These parts of Sec. 3501, accordingly, 
provide to defendants more consideration than they had under the pre-
Miranda voluntariness test.\243\
---------------------------------------------------------------------------
    \241\ 18 U.S.C. Sec. 3501(b)(3).
    \242\ 18 U.S.C. Sec. 3501(b)(4).
    \243\ This is the conclusion of Professor George Thomas in a draft 
article he has kindly shared with me, although he also goes on to 
conclude that the statute will not necessarily attract the support of a 
majority of the current Court. Professor Thomas does not, however 
consider (at least in the current draft) the arguments advanced in the 
remainder of this section of my testimony, which provide a stronger 
argument for the constitutionality of the statute than the more limited 
one he discusses. Cf. Harold J. Krent, The Supreme Court as an 
Enforcement Agency, 55 Wash. & Lee L. Rev. 1149, 1206 (considering all 
these arguments and concluding ``[b]ecause the Court in Miranda 
overenforced the Fifth Amendment, lower courts can--consistent with 
Miranda--rule that the famous warnings are no longer required'').
---------------------------------------------------------------------------
    Second, not only does Sec. 3501 by itself go beyond the pre-Miranda 
rules, but the statute must be examined against the backdrop of all 
federal law that bears on the subject.\244\ The Supreme Court will not 
decide whether Sec. 3501, standing in splendid isolation, would be an 
acceptable ``alternative'' to Miranda. The interrogation practices of 
federal officers are addressed not solely in Sec. 3501 but also by 
other federal statutes and related bodies of law that provide the 
possibility of criminal, civil, and administrative penalties against 
federal law enforcement officers who coerce suspects. Taken together, 
these remedies along with Sec. 3501 form a constitutional alternative 
to the Miranda exclusionary rule.
---------------------------------------------------------------------------
    \244\ See, e.g., Gracey v. International Brotherhood of Electrical 
Workers, 868 F.2d 671, 675 (4th Cir. 1989).
---------------------------------------------------------------------------
    Congress has established criminal penalties for federal law 
enforcement officers who willfully violate the constitutional rights of 
others. A federal civil rights statute provides that whoever ``under 
color of any law * * * willfully subjects any inhabitant of any State, 
Territory, or District to the deprivation of any rights, privileges, or 
immunities secured or protected by the Constitution or laws of the 
United States,'' shall be subject to criminal liability.\245\ 
Similarly, 18 U.S.C. Sec. 241 prohibits conspiracies to violate 
constitutional rights. These statutes apply to federal law enforcement 
officers\246\ who obtain coerced confessions.\247\ While Congress 
adopted these statutes during the Reconstruction Era, they have 
undergone significant judicial interpretation since Miranda. Indeed, 
the Supreme Court recently explicated the proper standard for coverage 
of the statute.\248\ Also, the Department's Civil Rights Division and 
the FBI now fully support enforcement of these statutes against federal 
officials.\249\
---------------------------------------------------------------------------
    \245\ 18 U.S.C. Sec. 242.
    \246\ United States v. Otherson, 637 F.2d 1276, 1278-79 (9th Cir. 
1980).
    \247\ See United States v. Lanier, 520 U.S. 259, 271 (1997) (noting 
that ``beating to obtain a confession plainly violates Sec. 242'') 
(internal citation omitted).
    \248\ Lanier, 520 U.S. at 270-72.
    \249\ See 28 C.F.R. Sec. 0.50 (establishing Justice Department's 
Civil Rights Division).
---------------------------------------------------------------------------
    Civil penalties against federal officers who violate constitutional 
rights are also now available. When Miranda was decided, as a practical 
matter it was not possible to seek damages from federal law enforcement 
officers who violated Fifth Amendment rights.\250\ That changed in 
1971, when the Supreme Court decided Bivens v. Six Unknown Named 
Agents. \251\ The Court held that a complaint alleging that the Fourth 
Amendment had been violated by federal agents acting under color of 
their authority gives rise to a federal cause of action for damages. 
Since then, courts have held that Bivens actions apply to abusive 
police interrogations, either as violations of the Fifth 252 Amendment 
Self-Incrimination Clause or violations of the Due Process Clause.\252\
---------------------------------------------------------------------------
    \250\ See Bell v. Hood, 327 U.S. 678 (1946).
    \251\ 403 U.S. 388 (1971).
    \252\ See, e.g., Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989) 
(finding a Bivens claim under the Due Process Clause for police 
misconduct during custodial interrogation); Bradt v. Smith, 634 F.2d 
796, 800 (5th Cir.1981) (suggesting Sec. 1983 recognizes Fifth 
Amendment claims); see also Riley v. Dorton, 115 F.3d 1159, 1164-66 
(4th Cir. 1997) (discussing but finding factually unsupported a 
Sec. 1983 claim for Fifth Amendment violations; Fifth Amendment claims 
arise only when coerced confession used at trial; considering Due 
Process challenge to police conduct during questioning).
---------------------------------------------------------------------------
    When Miranda was decided, the federal government was also 
effectively immune from civil suits arising out of Fifth Amendment 
violations. At the time, sovereign immunity barred recovery for many 
intentional torts which might normally form the basis for such suits, 
including false arrest, false imprisonment, abuse of process, assault, 
battery, and malicious prosecution.\253\ After Miranda, Congress acted 
to provide that the federal government is civilly liable for damages 
for conduct that could implicate Fifth Amendment concerns. In 1974, 
Congress amended the Federal Tort Claims Act to make it applicable ``to 
acts or omissions of investigative or law enforcement officers of the 
United States Government'' on any subsequent claim arising ``out of 
assault, battery, false imprisonment, false arrest, abuse of processes, 
or malicious prosecution.'' \254\
---------------------------------------------------------------------------
    \253\ See Senate Rep. No. 93-588, 1974 U.S.C.C.A.N. 2789, 2791.
    \254\ 28 U.S.C. Sec. 2680(h).
---------------------------------------------------------------------------
    In addition to these civil remedies, there is also now in place a 
well-developed system providing internal disciplinary actions against 
federal officers who violate the regulations of their agencies. As the 
Department of Justice explained in connection with the Fourth Amendment 
exclusionary rule, device for preventing constitutional violations 
include:

          (1) comprehensive legal training * * * (2) specific rules and 
        regulations governing the conduct of employees, and the use of 
        investigative techniques such as searches and seizures; (3) 
        institutional arrangements for conducting internal 
        investigations of alleged violations of the rules and 
        regulations; and (4) disciplinary measures that may be imposed 
        for unlawful or improper conduct.\255\
---------------------------------------------------------------------------
    \255\ U.S. Dep't of Justice, Office of Legal Policy, Report of the 
Attorney General on the Search and Seizure Exclusionary Rule (1986), 
reprinted in 22 U. Mich. J.L. Ref. 573, 622 (1989).

    The Department's observations likely apply not merely to search and 
seizure violations, but also to use of coercion during custodial 
interrogations.\256\
---------------------------------------------------------------------------
    \256\ This Subcommittee might request the Department of Justice to 
provide detailed information on this issue.
---------------------------------------------------------------------------
    Finally, it is crucial to remember that the Fifth Amendment itself 
provides its own exclusionary remedy. Actual violations of the Fifth 
Amendment, as opposed to ``mere'' Miranda violations, will always lead 
to the exclusion of evidence--regardless of whether Sec. 3501 is 
upheld.
    The Miranda decision, of course, is not binding on the question of 
alternatives, as the Court in 1966 had no opportunity to consider such 
subsequent developments as the Bivens decision in 1971 and the 
amendment of the Federal Tort Claims Act in 1974. As the Department of 
Justice has explained in connection with the Fourth Amendment 
exclusionary rule, ``[t]he remedial landscape has changed 
considerably'' since the early 1960s.\257\ Taken together, the 
combination of criminal, civil, and administrative remedies now 
available for coerced confessions--along with the Fifth Amendment's 
exclusion of involuntary statements--renders Miranda prophylactic 
remedy unnecessary and therefore subject to modification in Sec. 3501. 
Unlike the Miranda exclusionary rule, which ``sweeps more broadly than 
the Fifth Amendment itself'' and ``may be triggered even in the absence 
of a Fifth Amendment violation,'' \258\ the criminal and civil 
sanctions adopted by Congress focus more narrowly on conduct that 
directly implicates the Fifth Amendment proscription against 
``compelled'' self-incrimination. At the same time, they provide 
stronger remedies against federal agents who coerce confessions than 
does the Miranda exclusionary rule. It is well known that the exclusion 
of evidence ``does not apply any direct sanction to the individual 
official whose illegal conduct'' is at issue.\259\ Thus, the Miranda 
exclusionary rule would not be expected to have much effect on police 
intent on coercing confessions or otherwise violating Fifth Amendment 
standards. It should therefore come as no surprise that ``there has 
been broad agreement among writers on the subject that Miranda is an 
inept means of protecting the rights of suspects, and a failure in 
relation to its own premises and objectives.'' \260\
---------------------------------------------------------------------------
    \257\ U.S. Dep't of Justice, The Search and Seizure Exclusionary 
Rule, supra, 22 U. Mich. J.L. Ref. at 645.
    \258\ Oregon v. Elstad, 470 U.S. 298, 306-10 (1985).
    \259\ Bivens v. Six Unknown Named Agents, 403 U.S. 388, 416 (1971) 
(Burger, C.J., dissenting).
    \260\ U.S. Dep't of Justice, Report on Pre-Trial Interrogation, 
supra, 22 U. Mich. J.L. Ref. at 545 (collecting citations).
---------------------------------------------------------------------------
    In contrast, civil remedies directly affect the offending officer. 
As the Department itself has explained, ``[e]ven if successful Bivens 
suits are relatively rare, the mere prospect of such being brought is a 
powerful disincentive to unlawful conduct. It defies common sense to 
suppose that fear of a suit against [a federal] officer in his 
individual capacity, in which he is faced with the possibility of 
personal liability, has no influence on his conduct.'' \261\ Similarly, 
civil actions against the United States provide a tangible financial 
incentive to insure that federal practices comport with constitutional 
requirements. Likewise, internal disciplinary actions against federal 
agents must be considered an important part of the calculus. In 
refusing to extend the Fourth Amendment exclusionary rule into civil 
deportation proceedings, the Supreme Court has explained that ``[b]y 
all appearances the INS has already taken sensible and reasonable steps 
to deter Fourth Amendment violations by its officers, and this makes 
the likely additional deterrent value of the exclusionary rule 
small.\262\
---------------------------------------------------------------------------
    \261\ Br. for the United States at 34, INS v. Lopez-Mendoza, No. 
83-491 (U.S. 1984).
    \262\ INS v. Lopez-Mendoza, 468 U.S. 1032, 1049 (1984).
---------------------------------------------------------------------------
    Bearing firmly in mind that the Fifth Amendment will itself 
continue to provide an exclusionary rule for involuntary confessions, 
Congress acted within its powers in accepting Miranda's invitation to 
craft an alternative regime to insure that the Fifth Amendment is 
respected by federal agents. That regime subjects officers who forcibly 
extract confessions to criminal sanctions,\263\ civil actions (Bivens), 
and administrative remedies (internal disciplinary rules of various 
agencies), and their employing federal agencies to civil actions under 
the Federal Tort Claims Act.\264\ At the same time, that regime allows 
voluntary confessions to be used in evidence.\265\ This is an entirely 
reasonable, and in many ways more effective, approach to securing 
respect for the values of the Fifth Amendment than the Miranda 
exclusionary rule and, therefore, is fully compatible with both the 
Constitution and Miranda's call for Congress to develop alternative 
approaches.\266\
---------------------------------------------------------------------------
    \263\ 18 U.S.C. Sec. Sec. 242, 241.
    \264\ 28 U.S.C. Sec. 2680(h).
    \265\ 18 U.S.C. Sec. 3501.
    \266\ An entirely separate argument for the constitutionality of 
Sec. 3501 is based on the fact that Congress has now rejected the 
factual findings underpinning Miranda's conclusion that custodial 
interrogation has an ``inherently compelling'' character. Compare 
Miranda, 384 U.S. at 457-58 with S. Rep. No. 1097, 90th Cong., 2d 
Sess., reprinted in 1968 U.S.C.C.A.N. 2112, 2134. Dickerson alluded to 
this argument, explaining that ``Congress, utilizing its superior fact-
finding ability, concluded that custodial interrogations were not 
inherently coercive.'' 166 F.3d at 692 n.22. See generally Burt, 
Miranda and Title 11: A Morganatic Marriage, 1969 Sup. Ct. Rev. 81, 
118-34; Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. Rev. 
1, 42 n.217 (1975). Because the Sec. 3501 is constitutional on the 
arguments developed in sections A and B, supra, there is no need to 
discuss this alternative ground for upholding the statute.
---------------------------------------------------------------------------
 c. section 3501 does not ``unleash'' federal agents to trample rights
    Because the effects of Sec. 3501 are sometimes mischaracterized and 
exaggerated, it is important to note that a decision admitting the 
statements under Sec. 3501, on whatever theory, will not somehow 
``unleash'' federal enforcement agents to trample on the rights of 
suspects. Section 3501 permits the introduction only of ``voluntary'' 
statements. Under the statute, the judge--not the police--determine 
whether the statement was voluntarily given. And beyond that, Sec. 3501 
requires the jury, too, have the opportunity to assess voluntariness 
and, of course, the ultimate truthfulness of any confession. The 
statute even facilitates this review by requiring the judge to instruct 
the jury to give the statement only such weight as the jury feels it 
deserves ``under all the circumstances.'' \267\
---------------------------------------------------------------------------
    \267\ 18 U.S.C. Sec. 3501(b).
---------------------------------------------------------------------------
    On top of all this, many federal (and state) law enforcement 
agencies have their own policies requiring their agents to provide 
warnings before questioning, as just explained. Section 3501 itself 
continues to provide that warnings to suspects are relevant 
considerations in the voluntariness determination,\268\ thereby 
continuing to provide incentives for law enforcement officers to warn 
suspects of their rights. The Dickerson opinion was quite clear on this 
point, stating: ``[L]est there be any confusion on the matter, nothing 
in today's opinion provides those in law enforcement with an incentive 
to stop giving the now familiar Miranda warnings. * * * those warnings 
are among the factors a district court should consider when determining 
whether a confession was voluntarily given.'' \269\
---------------------------------------------------------------------------
    \268\ See 18 U.S.C. Sec. 3501(b)(3) & (4).
    \269\ Dickerson, 166 F.3d at 692.
---------------------------------------------------------------------------
    Finally, of course, the Fifth Amendment itself flatly forbids 
coercive interrogation tactics. Therefore, applying the statute will 
simply avoid protracted litigation over whether confessions should be 
suppressed because of close questions of technical compliance with 
Miranda. In light of all this, there can be little doubt that the 
statute survives constitutional challenge.

                   III. Miranda Harms Law Enforcement

    A final claim against Sec. 3501 is also worth considering. The 
Department of Justice has occasionally suggested that Sec. 3501 makes 
no different to public safety because federal prosecutors can prevail 
even under the Miranda exclusionary rule.\270\ This claim is easy to 
disprove. For example, in the Dickerson case itself, the Fourth Circuit 
warned that ``[w]ithout [Dickerson's] confession it is possible, if not 
probable, that he will be acquitted.'' \271\ It is also worth noting 
that Mr. Dickerson's confession was critical to the arrest of Jimmy 
Rochester, another bank robber who had been involved in robbing a total 
of 17 banks in three different states, as well as an armored car. 
Similarly, in a United States v. Rivas-Lopez, it will be quite 
difficult to obtain the conviction of a confessed methamphetamine 
dealer without the law.\272\ While Dickerson and Rivas-Lopez have not 
reached a final conclusion, there is no doubt about the result of the 
failure to apply Sec. 3501 in United States v. Leong. There, defendant 
Tony Leong was set back on the streets, in spite of the fact that he 
had confessed to being a convicted felon in possession of a firearm.
---------------------------------------------------------------------------
    \270\ Confirmation of Deputy Attorney General Nominee Eric Holder: 
Hearings before the Sen. Comm. on the Judiciary, 105th Cong., 1st Sess. 
124 (June 13, 1997) (written response of Deputy Attorney General 
Designate Holder to question from Senator Thurmond) (``My experience 
has been that we have not had significant difficulty in getting the 
federal district court to admit voluntary confessions under Miranda and 
its progeny'').
    \271\ United States v. Dickerson, 166 F.3d 667, 672 (4th Cir. 
1999).
    \272\ See 988 F. Supp. at 1426-27 (describing facts; Rivas-Lopez 
voluntarily consented to search of the car, whereupon drugs were 
discovered inside a hidden panel; little evidence to connect Rivas-
Lopez to the drugs, apart from his confession obtained ``outside 
Miranda'').
---------------------------------------------------------------------------
    No one has compiled a list of cases actually brought where the 
convictions of dangerous criminals were imperiled by this rigid 
exclusionary rule. The cases cited here involve simply my own, limited 
litigation experience over the last year or so, and a complete list of 
cases undermined by Miranda would clearly involve many other 
cases.\273\ Even if there were such a list, of course, it would only be 
the tip of the iceberg, since there are undoubtedly many other 
prosecutions that are not pursued at all because of Miranda problems 
with an otherwise voluntary confession.
---------------------------------------------------------------------------
    \273\ See, e.g., OLP Report, supra note 21, at 568 (collecting 
``miscarriages of justice resulting from Miranda and related 
decisions); United States v. Tyler, 164 F.3d 150 (3rd Cir. 1998), cert. 
denied,--U.S.--(1999) (remanding for further consideration of Miranda 
issues in witness tampering case involving the killing of a government 
witness); United States v. Rodriguez-Cabrera, 35 F.Supp.2d 181 (D.P.R. 
1999) (suppressing incriminating admission on grounds suspect in 
custody and should have received Miranda warnings); United States v. 
Guzman, 11 F.Supp.2d 292 (S.D.N.Y. 1998) (suppressing statement 
suggesting involvement in an attempted murder on grounds defendant was 
in custody and should have been Mirandized; also finding that statement 
was not coerced), aff'd, 152 F.3d 921 (2d Cir. 1998); United States v. 
Garibay, 143 F.3d 534 (9th Cir. 1998) (reversing conviction for 
distribution of 138 pounds of marijuana on grounds defendant did not 
understand Miranda waiver); United States v. Foreman, 993 F.Supp. 186 
(S.D.N.Y. 1998) (Baer, J.) (suppressing some statements under Miranda 
on grounds discussion during drive to booking after defendant asked 
what was going on constituted ``interrogation''); United States v. 
Griffin, 7 F.3d 1512 (10th Cir. 1993 (reversing conviction and sentence 
of life imprisonment for distributing crack cocaine on grounds 
defendant was in custody and should have received Miranda warnings; 
conviction apparently obtained on retrial); United States v. Ramsey, 
992 F.3d 301 (11th Cir. 1993) (reversing conviction for distribution of 
crack on grounds that turning and looking away from officer was 
invocation of Miranda right to remain silent); United States v. Henly, 
984 F.2d 1040 (9th Cir. 1993) (reversing conviction for armed robbery; 
defendant in custody and should have been Mirandized when sitting in 
back of police car); State v. Oldham, 618 S.W.2d 647 (Mo. 1981) 
(defendant's conviction for horribly abusing his two-year-old step 
daughter reversed because confession admitted; second police officer 
who obtained Mirandized confession not aware of that defendant declined 
to make statement to first officer); Commonwealth v. Zook, 553 A.3d 920 
(Pa. 1989) (death sentence reversed on Miranda grounds); Commonwealth 
v. Bennett, 264 A.2d 706 (Pa. 1970) (defendant's first degree murder 
conviction overturned because non-Mirandized confession admitted; 
defendant acquitted on retrial); Commonwealth v. Singleton, 266 A.3d 
753 (Pa. 1970) (police warning any statement could be used ``for or 
against'' defendant deviated from Miranda; defendant's conviction for 
beating deaths reversed; defendant acquitted on retrial).
---------------------------------------------------------------------------
    At the time Miranda was handed down, dissenting Justice John M. 
Harlan clearly warned that the decision would ``entail harmful 
consequences for the country at large. How serious those consequences 
may prove to be only time can tell.'' This question of Miranda's 
practical effect bears not only on the importance of Sec. 3501, but 
also the whole question of the Supreme Court's Miranda jurisprudence. 
Since 1966, the Supreme Court has repeatedly held that Miranda is a 
realistic preventive measure--``a carefully crafted balance designed to 
fully protect both the defendants' and society's interests.'' \274\ If 
the costs of Miranda are greater than is generally acknowledged, the 
Court might decide to rethink the current doctrine. What, then, are 
Miranda's Costs? \275\
---------------------------------------------------------------------------
    \274\ Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986).
    \275\ Some of the material used in the following sections draws on 
my ``Handcuffing the Cops: Miranda's Harmful Effects on Law 
Enforcement,'' Report No. 218 for the National Center for Policy 
Analysis.
---------------------------------------------------------------------------
        a. declining confession rates immediately after miranda
    Immediately after Miranda, a handful of researchers attempted to 
measure the effects of the decision. The studies generally suggested 
significant reductions in the number of suspects giving confessions 
under the new rules. For a recent article in the Northwestern Law 
Review, I exhaustively canvassed the empirical evidence on Miranda's 
social costs in terms of lost criminal cases.\276\ The direct 
information--before-and-after studies of confession rates in the wake 
of the decision--indicates that Miranda significantly depressed the 
confession rate.\277\ For example, in 1967, research revealed that 
confession rates in Pittsburgh fell from 48 percent of suspects 
questioned by detectives before the decision to 29 percent after.\278\ 
Similarly, New York County District Attorney Frank Hogan testified 
before the Senate Judiciary Committee that confessions fell even more 
sharply in his jurisdiction, from 49 percent before Miranda to 14 
percent after.\279\
---------------------------------------------------------------------------
    \276\ Paul G. Cassell, Miranda's Social Costs: An Empirical 
Reassessment, 90 Nw. U. L. Rev. 387 (1996).
    \277\ The term ``confession'' rate as used here includes not only 
full confessions to a crime but also ``incriminating statements'' 
useful to the prosecution.
    \278\ Richard H. Seeburger and R. Stanton Wettick Jr., Miranda In 
Pittsburgh--A Statistical Study, 29 U. Pitt. L. Rev. 1, 12-13 (1967).
    \279\ See Controlling Crime through More Effective Law Enforcement: 
Hearings before the Subcommittee on Criminal Laws and Procedure of the 
Senate Committee on the Judiciary, 90th Cong., 1st Sess. 1120 (1967) 
[hereinafter Controlling Crime Hearings].
---------------------------------------------------------------------------
    Virtually all of the studies just after Miranda found that 
confession rates had declined, as shown in Figure 1. The sole exception 
was a study in Los Angeles, which has been revealed to be 280 badly 
flawed.\280\
---------------------------------------------------------------------------
    \280\ The study gathered evidence on ``confessions'' before Miranda 
and ``confessions and other statements'' after Miranda. Because this 
latter category is broader than the first, it is impossible to 
meaningfully compare the two statistics. The law clerk who actually 
collected the data agrees that the figures from Los Angeles ``prove 
nothing.'' See Paul G. Cassell, Miranda's ``Negligible'' Effect On Law 
Enforcement: Some Skeptical Observations, 20 Harv. J.L. & Pub. Pol'y 
327, 332 (1997) (quoting now-U.S. Court of Appeals Judge Stephen S. 
Trott, who collected the data).
[GRAPHIC] [TIFF OMITTED] T0782.005

    The reliable data from the before-and-after studies \281\ show that 
confession rates fell by about 16 percentage points after Miranda. In 
other words, if the confession rate was 60 percent before Miranda,, it 
was 44 percent after--meaning that in about one of every six criminal 
cases Miranda resulted in a lost confession. The reliable studies also 
indicate that confessions are needed in about 24 percent of all cases 
to obtain a conviction. Combining these two figures produces the result 
that about 3.8 percent (16 percent   x  24 percent) of all criminal 
cases in this country are lost because of the restrictions imposed by 
Miranda..\282\ Extrapolating across the country, each year there are 
28,000 fewer convictions for violent crimes, 79,000 fewer for property 
crimes, and 500,000 fewer for crimes outside the FBI crime index.
---------------------------------------------------------------------------
    \281\ Data from L.A. are excluded for the reasons given in the 
preceding note; from the District of Columbia because police did not 
generally follow the Miranda requirements, and from Chicago because the 
data are limited to homicides. See Cassell, supra note 276, at 418.
    \282\ See Cassell, supra note 276, at 438-39. For further 
discussion of this estimate, compare Stephen J. Schulhofer, Miranda's 
Practical Effect: Substantial Benefits and Vanishingly Small Social 
Costs, Nw. U. L. Rev. 500 (1997) with Paul G. Cassell, All Benefits, No 
Costs: The Grand Illusion of Miranda's Defenders, Nw. U. L. Rev. 1084 
(1996).
---------------------------------------------------------------------------
               b. recent data on lowered confession rates
    These estimates of Miranda's harmful effects come solely from 
before-and-after studies that rely on data from the months immediately 
preceding and following Miranda. The studies accordingly fail to 
capture Miranda's long-term effects, effects that would reflect 
criminal suspects' full understanding of the protection Miranda offers 
them. To gain a better view of Miranda's historic effects, we need some 
solid statistical indicator that extends beyond 1967 and, indeed, into 
the 1990's.
    In theory, the ideal study would review confession rates since 1967 
to see whether, despite initial declines after the decision, the rates 
have since ``rebounded''--in other words, a before-and-after study of 
confession rates over several decades rather than several months. 
Unfortunately, no such statistics exist. The only figures that do exist 
were gathered by individual researchers for particular cities on a one-
time basis. Although broad generalizations are hazardous, confession 
rates before Miranda were probably 55 percent to 60 percent.\283\ After 
Miranda, the few studies available reveal lower confession rates. The 
most recent empirical study, in 1994 in Salt Lake County, Utah, found 
an overall confession rate of only 33 percent, as shown in Figure 
II.\284\
---------------------------------------------------------------------------
    \283\ See Paul G. Cassell & Bret S. Hayman, Police Interrogation: 
An Empirical Study of the Effects of Miranda, 43 UCLA L. Rev. 839, 871 
(1996); see also Christopher Slobogin, Criminal Procedure: Regulation 
of Police Investigation: Legal, Historical, Empirical and Comparative 
Materials 6 (1995 Supp.) (concluding that a 64 percent confession rate 
is ``comparable to pre-Miranda confession rates''). Cf. George S. 
Thomas III, ``Plain Talk About the Miranda Empirical Debate: A `Steady-
State' Theory of Confessions,'' 43 UCLA L. Rev. 933, 935-36 (1996) 
(deriving lower estimate with which to compare studies).
    \284\ See Cassell & Hayman, supra note 283, at 869. For an 
interesting though ultimately unpersuasive argument that the Salt Lake 
County confession rate is actually higher, see Thomas, supra note 283, 
at 944-53.
[GRAPHIC] [TIFF OMITTED] T0782.006

This Salt Lake city data is generally consistent with such other data 
as is available. Richard Leo's 1993 study from Berkeley, California, 
found an in-custody questioning success rate by detectives of 64 
percent. If we adjust this figure for comparability with earlier 
studies, it translates into an overall confession rate of about 39 
percent.\285\ A 1979 National Institute of Justice study of 
Jacksonville, Fla., and San Diego, Calif., reported confession rates of 
33 percent and 20 percent, respectively. When statements admitting 
presence at a crime scene are added, the overall rates for 
incriminating statements rise to 51 percent and 37 percent, 
respectively.\286\ A 1977 study of six cities reported a confession 
rate of 40 percent.\287\
---------------------------------------------------------------------------
    \285\ See Cassell & Hayman, supra note 283, at 926-30 (discussing 
Richard A. Leo, Inside The Interrogation Room, 86 J. Crim. L. & 
Criminology 266 (1996)).
    \286\ Floyd Feeney et al., Arrests Without Conviction: How Often 
They Occur and Why 142 (1983).
    \287\ See Gary D. Lafree, Adversarial and Nonadversarial Justice: A 
Comparison of Guilty Pleas and Trials, 23 Criminology 289, 302 (1985).
---------------------------------------------------------------------------
    Taken together, these studies suggest that confession rates have 
been lower since Miranda. But this conclusion, too, could be attacked 
on the grounds that studies from individual cities may not be 
applicable across the country. Because no national data exist, we must 
search for an alternative measure.
            c. declining crime clearance rates after miranda
    The most meaningful alternative measure of the frequency of 
confessions is the clearance rate--the rate at which police officers 
``clear,'' or solve, crimes. Since at least 1950, the Federal Bureau of 
Investigation has collected clearance rate figures from around the 
country and reported this information annually in the Uniform Crime 
Reports.\288\ The clearance rate appears to be a reasonable (if 
understated) alternative measure for the confession rate. If Miranda 
prevents a confession, a crime may go unsolved. As one leading police 
interrogation manual explains, ``Many criminal cases, even when 
investigated by the best qualified police departments, are capable of 
solution only by means of an admission or confession from the guilty 
individual or upon the basis of information obtained from the 
questioning of other criminal suspects.'' \289\
---------------------------------------------------------------------------
    \288\ See Federal Bureau of Investigation, Uniform Crime Reports, 
Crime in the United States 1995 (1996) [hereinafter cited as UCR-year].
    \289\ Fred E. Inbau et al., Criminal Interrogation and Confessions 
at xiv (2d ed. 1986).
---------------------------------------------------------------------------
    Clearance rates have been widely viewed--especially by defenders of 
the Miranda decision--as a statistic that would reveal its effects. For 
example, a widely cited passage in Professor Stephen Schulhofer's 1987 
article praising Miranda reported the prevailing academic view that, 
while some studies suggested declining confession rates after the 
decision, within a ``year or two'' clearance ``rates were thought to be 
returning to pre-Miranda levels.\290\ While an apparent consensus 
exists that clearance rates at least partially gauge Miranda's impact, 
one note of caution should be sounded. Police can record a crime as 
``cleared'' when they have identified the perpetrator and placed him 
under arrest, even where the evidence is insufficient to indict or 
convict.\291\ As a result, clearance rates fail to capture any of 
Miranda's harmful effects if these show up only after a crime has been 
cleared. This means that clearance rates understate Miranda's effects.
---------------------------------------------------------------------------
    \290\ Stephen J. Schulhofer, Reconsidering Miranda, 54 U. Chi. L. 
Rev. 435, 436 (1987).
    \291\ Federal Bureau of Investigation, Uniform Crime Reporting 
Handbook 41-42 (1984).
---------------------------------------------------------------------------
    Surprisingly, no one has made a close examination of the national 
data from the FBI's Uniform Crime Reports. In a recently published 
article, Professor Richard Fowles and I showed that crime clearance 
rates fell sharply all over the country immediately after Miranda and 
remained at these lower levels over the next three decades.\292\ For 
example, in both 1966 and 1967 the FBI reported that a drop in 
clearance rates was ``universally reported by all population groups and 
all geographic divisions.'' \293\ A long-term perspective on crime 
clearance rates comes from plotting the FBI's annual figures. Figure 
III illustrates the national crime clearance rate from 1950 to 1995 for 
violent crimes (nonnegligent homicide, forcible rape, aggravated 
assault and robbery).
---------------------------------------------------------------------------
    \292\ Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A 
Thirty Year Perspective on Miranda's Harmful Effects on Law 
Enforcement, 50 Stan. L. Rev. (1998). For more details about our 
analysis of clearance rates, including methodological issues, see ibid. 
For further discussion of this analysis, compare John J. Donohue III, 
Did Miranda Diminish Police Effectiveness?, 50 Stan. L. Rev. 1147 
(1998) (confirming some aspects of the analysis and raising questions 
about others) with Paul G. Cassell and Richard Fowles, Falling 
Clearance Rates After Miranda: Coincidence Or Consequence, 50 Stan. L. 
Rev. 1181 (1998) (responding to Donohue).
    \293\ UCR-1966, supra note 288, at 27; UCR-1967, supra note 288, at 
30.
[GRAPHIC] [TIFF OMITTED] T0782.007

As the numbers show, violent crime clearance rates were fairly stable 
from 1950 to 1965, generally hovering at or above 60 percent. They even 
increased slightly from 1962 to 1965. Then, in the three years 
following Miranda, the rates fell dramatically--to 55 percent in 1966, 
51 percent in 1967 and 47 percent in 1968. Violent crime clearance 
rates have hovered around 45 percent ever since--about 15 percentage 
points, or 25 percent, below the pre-Miranda rate. Because Miranda 
probably took effect over several years--while both police practices 
and suspect talkativeness adjusted to the new rules--simple visual 
observation of the long-term trends suggests that Miranda substantially 
harmed police efforts to solve violent crimes.
    The annual crime clearance rate during the same period for the 
property crimes of burglary, vehicle theft and larceny present the same 
pattern, as shown in Figure IV. The rate at which police cleared 
property crimes fluctuated somewhat from 1950 to 1960, declined from 
1961 to 1965, then fell at an accelerating rate from 1966 to 1968 and 
generally stabilized thereafter. Here again, during the critical post-
Miranda period, clearance rates dropped, although somewhat less 
dramatically than clearance rates for violent crime.
[GRAPHIC] [TIFF OMITTED] T0782.008

    The graphs of crime clearance rates, particularly violent crime 
clearance rates, nicely fit the handcuffing-the-cops theory advanced by 
Miranda's critics and disprove the suggestion that there was any sort 
of ``rebound'' of clearance rates after the decision. Defenders of 
Miranda nonetheless might argue that this does not prove any causal 
link between the drop in clearance rates and the Supreme Court's new 
rules.\294\ The link, however, is strongly suggested by the striking 
timing of the sharp drop, originating in 1966 (and not earlier) and 
concluding in the year or two after. Moreover, it is important to 
recall that it was Miranda's defenders who first suggested exploring 
clearance rates as evidence of Miranda's effects.
---------------------------------------------------------------------------
    \294\ See Stephen J. Schulhofer, Miranda and Clearance Rates, 91 
Nw. U. L. Rev. 278 (1996).
---------------------------------------------------------------------------
    The connection between the decline in clearance rates and Miranda 
was contemporaneously recognized. During the critical 1966-68 period, 
the Uniform Crime Report listed as explanatory causes for falling 
clearance rates ``court decisions which have resulted in restrictions 
on police investigative and enforcement practices'' along with ``the 
sharp increase of police workloads in criminal and noncriminal matters; 
the almost static ratio of police strength to population, which is not 
commensurate with the sharp increase in crime; and the increasing 
mobility of those who commit crimes.'' \295\
---------------------------------------------------------------------------
    \295\ UCR-1967, supra note 288, at 30.
---------------------------------------------------------------------------
    Assessments from law enforcement officers who questioned suspects 
both while free from and subject to Miranda's constraints confirm the 
importance of Miranda in the drop in clearance rates. Perhaps the best 
interviews of officers on the streets were conducted by Otis Stephens 
and his colleagues in Knoxville, Tenn., and Macon, Ga., in 1969 and 
1970. Virtually all the officers surveyed believed that Supreme Court 
decisions had adversely affected their work, and most blamed 
Miranda.\296\ Similarly, in New Haven, Conn., Yale students who 
observed interrogations during the summer of 1996 interviewed most of 
the detectives involved plus 25 more. They reported that ``[t]he 
detectives unanimously believe [Miranda] will unjustifiably [help the 
suspect].'' \297\ They also reported that ``[t]he detectives 
continually told us that the decision would hurt their clearance rate 
and that they would therefore look inefficient.'' Law student Gary L. 
Wolfstone sent letters in 1970 to police chiefs and prosecutors in each 
state and the District of Columbia. Most agreed that Miranda raised 
obstacles to law enforcement.\298\ In ``Seaside City,'' James Witt 
interviewed forty-three police detectives some time before 1973. Witt 
reported that the detectives ``were in almost complete agreement over 
the effect that the Miranda warnings were having on the outputs of 
formal interrogation. Most believed that they were getting many fewer 
confessions, admissions and statements * * * [and] were quick to refer 
to a decline in their clearance rate when discussing problems emanating 
from the Miranda decision.'' \299\
---------------------------------------------------------------------------
    \296\ See Otis H. Stephens et al., Law Enforcement and the Supreme 
Court: Police Perceptions of the Miranda Requirements,'' 39 Tenn. L. 
Rev. 407 (1972); see also Otis H. Stephens Jr., The Supreme Court and 
Confessions of Guilt (1973).
    \297\ See Project, Interrogations in New Haven: The Impact of 
Miranda, 76 Yale L.J. 1519, 1611-12 (1967).
    \298\ See Gary L. Wolfstone, Miranda--A Survey of Its Impact, 7 
Prosecutor 26, 27 (1971).
    \299\ James W. Witt, Noncoercive Interrogation and the 
Administration of Criminal Justice: The Impact of Miranda on Police 
Effectuality, 64 J. Crim. L. & Criminology 320, 325, 330 (1973).
---------------------------------------------------------------------------
    While other social changes in the 1960's might have affected police 
performance, these changes are unlikely to account for the sharp 1966-
68 drop in clearance rates. For example, although illegal drug use 
certainly increased during the 1960's, the increase continued into the 
1970's and 1980's. Other social changes may have had some indirect 
effect on police effectiveness, but again such long-term changes are 
not strong candidates for an unexplained portion of the 1966-68 drop in 
clearance rates. Finally, the conclusion that Miranda caused a 
significant part of the 1966-68 decline in clearance rates is supported 
by a wide range of information, and also by common sense. The 
conclusion suggested here is simply that when the Supreme Court imposed 
unprecedented restrictions on an important police investigative 
technique, the police became less effective. This is not a 
counterintuitive assertion, but instead a logical one.
    As theory and contemporaneous police reports suggest that the 
Miranda decision was a primary cause of the 1966 to 1968 drop in 
clearance rates, so do standard statistical techniques. The generally 
accepted device for sorting through competing possibilities is multiple 
regression analysis.
    The first step in developing a regression model is to identify 
relevant variables for the equations. For our dependent variable, 
Professor Fowles and I used clearance rates at a national level based 
on FBI data.\300\ For control variables, the factor most commonly cited 
as affecting the clearance rate is the crime rate. The standard 
argument is that as police officers have more crimes to solve, they 
will be able to solve a smaller percentage of them. Apart from the 
clime rate, the most often cited factors influencing clearance rates 
are law enforcement officers and expenditures on law enforcement. To 
control for such influences, we added variables for the number of law 
enforcement personnel per capita and the dollars spent on police 
protection per capita by state and local governments, adjusted for 
inflation by the consumer price index. We also controlled for the 
interactions between these variables and the overall number of crimes--
what has been called the ``capacity'' of the system.\301\ Other 
variables have been identified in the criminal justice literature as 
having some bearing on clearance rates or, more generally, crime rates. 
We controlled for the percentage of juveniles in the population, the 
unemployment rate, disposable per capita real income, labor force 
participation, live births to unmarried mothers, levels of urbanization 
and the distribution of crimes committed in large and small cities. 
Finally, to capture the effects of the Miranda decision, we included a 
``dummy'' variable in the equations. This was assigned the value of 0 
before Miranda, \1/2\ in the year of Miranda (1966) and 1 thereafter.
---------------------------------------------------------------------------
    \300\ FBI clearance rates have been criticized as subject to 
interdepartmental variations in what constitutes solving or 
``clearing'' a crime, but the figures used here come from the aggregate 
national clearance rate, comprised of reports filed by thousands of law 
enforcement agencies. As a result, they should be reliable for present 
purposes. See James Alan Fox, Forecasting Crime Data: An Econometric 
Analysis 7 (1978) (concluding that the problem of data manipulation is 
``not overly troublesome'' for time series analysis that ``does not 
involve cross-sectional data, but rather a time series from the same 
population''); Charles R. Tittle and Alan R. Rowe, Certainty of Arrest 
and Crime Rates: A Further Test of the Deterrence Hypothesis, 52 Social 
Forces 455, 456 (1974) (although manipulation is possible, ``such 
biases would seem to be distributed throughout the various police 
departments so that the validity of a study which examines internal 
variations in the entire body of data * * * would be unaffected'').
    \301\ See Schulhofer, supra note 294, at 291.
---------------------------------------------------------------------------
    The findings, which have been detailed elsewhere,\302\ are that 
Miranda had a statistically significant effect on clearance rates for 
both violent and property crimes. The coefficient associated with the 
Miranda variable implies that violent crime clearance rates would be 
6.7 percentage points higher without Miranda. The coefficient 
associated with the Miranda variable indicates that property crime 
clearance rates would be 2.2 percentage points higher. In 1995 the 
violent crime clearance rate was 45.4 percent and the property crime 
clearance rate 17.7 percent: \303\ The regression equations thus 
suggest that without Miranda the violent crime clearance rate would 
have been 50.2 percent (43.5 percent  + 6.7 
) 
  

  

  
 
 
 19.9 
 (17.7 
 + 2.2 
).
---------------------------------------------------------------------------
    \302\ See Cassell & Fowles, supra note 292, at 1086, 1088.
    \303\ UCR-1994, supra note 288, at 208 Table 25.
---------------------------------------------------------------------------
    These findings are for the total categories of ``violent'' and 
``property'' crime. There is a danger, of course, that such 
aggregations may obscure what is happening in individual crime 
categories. For this reason, we ran separate regressions on the 
individual violent and property crimes. Except for robbery, all exhibit 
a long-term downward trend, but not a sharp downward break in the 1966 
to 1968 period. The sharp reduction in robbery clearances suggests that 
robbery clearances are the most likely to be affected by Miranda. The 
results of the regression analysis confirm that Miranda had a 
significant effect on robbery clearances but not on other violent 
crimes.\304\
---------------------------------------------------------------------------
    \304\ See Cassell & Fowles, supra note 292, at 1085-86.
---------------------------------------------------------------------------
    Clearances of property crimes (burglary, larceny and vehicle theft) 
all exhibit a long-term downward trend. Larceny and vehicle theft 
clearances show particularly sharp drops in the 1966 to 1968 period, 
while the sharp drop in burglary clearances extends from 1961 to 1968. 
These visual observations track the regression results. The Miranda 
variable has a statistically significant downward effect on clearance 
rates for larceny and vehicle theft. For burglary, the Miranda variable 
is not statistically significant at the conventional 95 percent 
confidence level (but is significant at a 90 percent confidence 
level).\305\
---------------------------------------------------------------------------
    \305\ See id. at 1087-88.
---------------------------------------------------------------------------
    The regression equation controls for two of the factors cited in 
the Uniform Crime Report as possible reasons for the clearance rate 
decline: the increase in police workloads and the static ratio of 
police strength. Increased mobility of those committing crimes is 
possible, but seems an unlikely explanation for a sudden, three-year 
shift in crime clearance rates. Increasing mobility could affect 
clearances only over the long haul. That leaves the first factor--
``court decisions which have resulted in restrictions on police 
investigative and enforcement practices''--as the logical candidate for 
explaining the sudden drop in clearance rates.
    Sometimes it is argued that clearance rates declined after Miranda 
for a good reason: the police were forced to abandon unconstitutionally 
coercive questioning techniques. On this view, declining clearance 
rates measure not the social cost of criminals unfairly escaping, but 
rather the social benefit of police abandoning impermissible 
questioning techniques. This explanation is far-fetched for two 
reasons. First, genuinely coerced confessions were, statistically 
speaking, rare at the time of Miranda. It appears to be common ground 
in the literature that, as the result of increasing judicial oversight 
and police professionalism, coercive questioning methods began to 
decline in the 1930's and 1940's.\306\ By the 1950's, coercive 
questioning had, according to a leading scholar in the area, 
``diminished considerably.'' \307\ When the Supreme Court began issuing 
more detailed rules for police interrogation in the 1960's, it was 
dealing with a problem ``that was already fading into the past.'' \308\ 
Chief Justice Warren's majority opinion in Miranda, while citing the 
Wickersham Report and other accounts of police abuses, acknowledged 
that such abuses were ``undoubtedly the exception now'' and that ``the 
modern practice of in-custody interrogation is psychologically rather 
than physically oriented.'' \309\ At about the same time, the 
President's Commission on Law Enforcement and the Administration of 
Justice reported that ``today the third degree is almost nonexistent'' 
and referred to ``its virtual abandonment by the police.'' \310\ The 
empirical surveys provide good support for Professor Gerald Rosenberg's 
assessment: ``Evidence is hard to come by, but what evidence there is 
suggests that any reductions that have been achieved in police 
brutality are independent of the Court and started before Miranda.'' 
\311\ Second, beyond the relative infrequency of unconstitutional 
interrogation techniques, the Miranda rules themselves were not well 
tailored to prevent coerced confessions. Justice Harlan's point in his 
Miranda dissent has never been effectively answered. He wrote: ``The 
new rules are not designed to guard against police brutality or other 
unmistakably banned forms of coercion. Those who use third-degree 
tactics and deny them in court are equally able and destined to lie as 
skillfully about warnings and waivers.'' \312\ It is not clear why 
police using rubber hoses before Miranda would have shelved them 
afterwards--at least in the generally short time period following the 
decision during which the confession rate changes were observed.
---------------------------------------------------------------------------
    \306\ See Cassell, supra note 276, at 473-74, collecting 
references.
    \307\ Richard A. Leo, From Coercion to Deception: The Changing 
Nature of Police Interrogation in America,'' 18 Crime, Law & Social 
Change 35, 51 (1992).
    \308\ Fred P. Graham, The Self-Inflicted Wound 22 (1969).
    \309\ Miranda, 384 U.S. at 448-49.
    \310\ President's Commission on Law Enforcement and Administration 
of Justice, the Challenge of Crime in a Free Society 93 (1967).
    \311\ Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About 
Social Change? 326 (1991).
    \312\ Miranda, 384 U.S. at 505 (Harlan, J., dissenting).
---------------------------------------------------------------------------
    Having considered various models for the Miranda effect, it may be 
thought useful to have a short summary of the findings and the range of 
the possible effect of the decision on clearance rates. Table I 
displays the pertinent information.
[GRAPHIC] [TIFF OMITTED] T0782.009

    The first column sets out the clearance rate for the various crime 
categories for 1995--for example, a 24.2 percent clearance rate for 
robbery. The second column shows the range of the Miranda effect found 
in considering all possible combinations of the variables in our 
equations.\313\ For example, depending on the model specification, 
robbery clearances were somewhere between 1.6 and 7.2 percentage points 
lower, depending on what variables one includes or excludes. To provide 
some context for these figures, the third column sets out the rate at 
which clearances would have increased without the Miranda effect. For 
example, given that only 24.2 percent of robberies were cleared in 
1994, increasing the clearance rate by 1.6 to 7.2 percentage points 
would have meant the clearance of 6.6 percent to 29.7 percent more 
robberies. Because of interest in the absolute number of crimes 
affected, we estimate in the last column how many more crimes would 
have been cleared in 1995 in the absence of the Miranda effect. Our 
equations suggest, for instance, that without Mirandabetween 8,000 and 
36,000 more robberies would have been solved in 1995. It should be 
emphasized again that these estimates are quite conservative. They 
capture only Miranda's impact on crime clearances, ignoring some of the 
effects on prosecutions and convictions at later points in the criminal 
justice system.
---------------------------------------------------------------------------
    \313\ This is known as ``extreme bounds analysis.'' For further 
explication, see Cassell and Fowles, supra note 292, at 1103-06.
---------------------------------------------------------------------------
    Our equations suggest a Miranda effect on clearance rates for 
robbery, larceny and vehicle theft (and possibly burglary), but not 
homicide, rape and assault. What could explain this pattern? No doubt 
the reasons are complex, but reasonable possibilities suggest 
themselves.
    What might be loosely called crimes of passion or emotion--murder, 
rape and assault--were apparently unaffected by Miranda, while crimes 
of deliberation--robbery, larceny, vehicle theft and possibly 
burglary--were affected. These categories are oversimplifications; 
obviously there are coolly calculated murders and impulsive car thefts. 
But if the generalizations are more often correct than incorrect, they 
correspond with the larger body of evidence suggesting that Miranda 
more substantially affects police success in dealing with repeat 
offenders and professional criminals.\314\
---------------------------------------------------------------------------
    \314\ See Cassell, supra note 276, at 464-66, on collecting the 
available evidence.
---------------------------------------------------------------------------
    Still another explanation is that police may more often clear some 
kinds of crimes through confessions. A study of the New York City 
Police Department around the time of Miranda reported widely varying 
ratios of clearances to arrests across crime categories.\315\ The ratio 
of clearances to arrests is well in excess of 1 for some crimes--
specifically burglary, grand larceny, grand larceny vehicle and 
robbery. Police might arrest, for example, a professional burglar who 
would confess not only to the burglary for which he was apprehended, 
but to several he had previously committed. For other crimes-
specifically homicide, rape and assault--the ratio was quite close to 
1. This suggests that confessions may play a more important role in 
clearances of such crimes as burglary, vehicle theft, larceny and 
robbery, and thus clearance rates for these crimes are more susceptible 
to changes in confession procedures.
---------------------------------------------------------------------------
    \315\ Peter W. Greenwood, An Analysis of the Apprehension 
Activities of the New York City Police Department 18-19 (1970).
---------------------------------------------------------------------------
    Another possibility is resource shifts by police to maintain high 
clearance rates for the most serious and less numerous crimes such as 
murder or rape. After Miranda, police may have responded to the 
difficulties created by the Supreme Court by reassigning some officers 
to the homicide division. Police agencies are frequently judged by 
their effectiveness in solving the most notorious crimes, especially 
murders. This transfer of resources would produce lower clearance rates 
for less visible and more numerous crimes like larceny or vehicle 
theft.
                 d. the costs of miranda in perspective
    The evidence collected here suggests that Miranda's restrictions on 
police have significant social costs. To put Miranda's costs into some 
perspective, one might compare them to the costs of the Fourth 
Amendment exclusionary rule, long considered a major--if not the 
major--judicial impediment to effective law enforcement. In creating a 
``good faith'' exception to the exclusionary rule, the Supreme Court 
cited statistics tending to show that the rule resulted in the release 
of between 0.6 percent and 2.35 percent of individuals arrested for 
felonies.\316\ The Court concluded that these ``small percentages * * * 
mask a large absolute number of felons who are released because the 
cases against them were based in part on illegal searches or 
seizures.'' The data presented here suggest that Miranda's costs are 
higher than those of the exclusionary rule. It is also virtually 
certain that these costs fall most heavily on those in the worst 
position to bear them, including racial minorities and the poor.\317\
---------------------------------------------------------------------------
    \316\ See United States v. Leon, 468 U.S. 897, 908 n.6 (1984) 
(citing Thomas Y. Davies, A Hard Look at What We Know (and Still Need 
to Learn) about the `Costs' of the Exclusionary Rule: The NIJ Study and 
Other Studies of `Lost' Arrests, 1983 Am. B. Found. Res. J. 611, 621, 
667).
    \317\ Compare Charles Murray, Losing Ground: American Social 
Policy, 1950-1980, at 117 (1984) (reviewing crime statistics and 
concluding: ``Put simply, it was much more dangerous to be black in 
1972 than it was in 1965, whereas it was not much more dangerous to be 
white.'').
---------------------------------------------------------------------------
    A final way of showing Miranda's harm is through the truism that an 
unnecessary cost is a cost that should not be tolerated. If Miranda's 
costs can be reduced or eliminated without sacrificing other values, 
they should be--and as quickly as possible. What converts Miranda's 
harm into tragedy is that these uncleared crimes are, in many cases, 
unnecessary. If Sec. 3501 were enforced, those costs would clearly 
diminish. Today, with the benefit of 30 years of interpretations, we 
know the Miranda mandate is not a constitutional requirement. As 
explained earlier, Miranda itself invited Congress to craft 
alternatives to the court-promulgated rules and since the decision the 
Court has repeatedly held that the rights are not themselves rights 
protected by the Constitution. When called upon to justify these rules, 
the Court has based these safeguards on a purely pragmatic, cost-
benefit assessment. The Court has specifically stated that the Miranda 
rules rest not on constitutional requirement but rather are a 
``carefully crafted balance designed to fully protect both the 
defendant's and society's interests.'' \318\ While the Court has never 
said precisely what costs it is willing to tolerate in this cost-
benefit calculation, it has likely understated their magnitude, as the 
new evidence presented here suggests. The Court's calculation of 
Miranda's costs and benefits becomes even more problematic when the 
possibility of reasonable, less harmful approaches to regulating police 
questioning is factored in. When the Court announced Miranda in 1966, 
significant efforts to reform the rules regarding interrogations were 
under way.\319\ The decision itself seemed to invite continued 
exploration of such alternatives, promising that ``[o]ur decision in no 
way creates a constitutional straitjacket which will handicap sound 
efforts at reform.'' \320\
---------------------------------------------------------------------------
    \318\ Moran v. Burbine, 475 U.S. 412, 433 n.4 (1986).
    \319\ See Office of Legal Policy, U.S. Department of Justice Report 
to the Attorney General on the Law of Pre-Trial Interrogation 40-41, 
58-61 (1986).
    \320\ Miranda, 384 U.S. at 467.
---------------------------------------------------------------------------
    To date, the Court's promise has proven to be an empty one. In the 
three decades since Miranda, reform efforts have been virtually 
nonexistent. The reasons are not hard to imagine. No state is willing 
to risk possible invalidation of criminal convictions by using an 
alternative to Miranda until the Supreme Court clearly explains what 
alternatives will pass its scrutiny.
    The failure to explore other approaches cannot be attributed to 
lack of viable options. For example, the police might be permitted to 
videotape interrogations as a substitute for the Miranda procedures. I 
have explained such a proposal in detail,\321\ and the concept has been 
endorsed by respected commentators.\322\ Videotaping might be the best 
solution to the problem of regulating police interrogations envisioned 
in Miranda's encouragement to ``Congress and the States to continue 
their laudable search for increasingly effective ways of protecting the 
rights of the individual while promoting efficient enforcement of our 
criminal laws.'' \323\ Videotaping would better protect against police 
brutality, end the ``swearing contest'' about what happens in secret 
custodial interrogations and allow suspects who are manipulated into 
falsely confessing to prove their innocence.\324\ At the same time, 
even when coupled with limited warnings of rights, videotaping does not 
appear to significantly depress confession rates.\325\ Another 
replacement for Miranda would be to allow the states to bring an 
arrested suspect before a magistrate for questioning.\326\ Questioning 
under the supervision of a magistrate would offer more judicial 
oversight than Miranda, but might be structured so as to result in more 
evidence leading to conviction. But, as with videotaping, because of 
the Court's failure to indicate whether this might be a permissible 
alternative to Miranda, this approach has remained nothing more than 
hypothetical for criminal procedure professors.
---------------------------------------------------------------------------
    \321\ See Cassell, supra note 276, at 486-92.
    \322\ See, e.g., Judge Harold J. Rothwax, Guilty: The Collapse of 
Criminal Justice 237 (1996) (urging replacement of Miranda with a 
system of videotaping interrogations).
    \323\ Miranda, 384 U.S. at 467.
    \324\ See Harold J. Rothwax, Guilty: The Collapse of Criminal 
Justice 237 (1996); Cassell, supra note 276, at 486-92; Paul G. 
Cassell, Protecting the Innocent from False Confessions and Lost 
Confessions--and from Miranda, 88 J. Crim. L. & Criminology 497 (1998).
    \325\ See Cassell, supra note 276, at 489-92.
    \326\ William Schaefer, The Suspect and Society (1967); Henry 
Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional 
Change, 37 U. Cinn. L. Rev. 671, 721-25 (1968); Akhil Reed Amar, The 
Constitution and Criminal Procedure: First Principles 76-77 (1997).
---------------------------------------------------------------------------
    This rigidity in the law of pre-trial interrogation may well be the 
greatest cost of Miranda. In its 1986 Report, the Department of Justice 
put the point nicely:

          The Miranda decision has petrified the law of pre-trial 
        interrogation for the past twenty years, foreclosing the 
        possibility of developing and implementing alternatives that 
        would be of greater effectiveness both in protecting the public 
        from crime and in ensuring fair treatment of persons suspected 
        of crime. * * * Nothing is likely to change in the future as 
        long as Miranda remains in effect and perpetuates a perceived 
        risk of invalidation for any alternative system that departs 
        from it.\327\
---------------------------------------------------------------------------
    \327\ OLP Report, supra note 21, at 96.

    With the ``petrification'' of the law in mind, the importance of 
Sec. 3501 becomes clear. Section 3501 offers a very real chance to 
reform our rules governing pre-trial questioning and begin to consider 
how best to structure the process to protect the legitimate interests 
of both suspects and society. If the Dickerson opinion is upheld, for 
example, one would expect federal agencies to begin more serious 
consideration of various alternative approaches. It is encouraging, for 
example, to see that the FBI has recently announced it will consider, 
at the option of local offices, the use of videotaping during 
interrogations. Alternatives like this--at both the state and federal 
levels--will prosper if the Supreme Court upholds Sec. 3501 and signals 
that it will not automatically exclude voluntary confessions whenever 
there has been any kind of deviation from the Miranda requirements.
    It is against this backdrop that the Department's refusal to defend 
Sec. 3501 in the lower courts must ultimately be assessed. As was shown 
in Part I, this new position is at odds with the consistent views of 
the Department of Justice for nearly a quarter of a century before the 
current Administration took power. As was shown in Part II, there 
plainly are ``reasonable'' arguments to defend the statute, as the 
Fourth Circuit's recent exhaustive opinion (among others) demonstrates. 
But the true tragedy of the Department's position is shown by the costs 
of Miranda in suppressing reliable evidence, as shown here in Part III.
    Justice White's dissent in Miranda warned that ``[i]n some unknown 
number of cases the Court's rule will return a killer, a rapist or 
other criminal to the streets * * * to repeat his crime whenever it 
pleases him.'' He continued, ``There is, of course, a saving factor: 
the next victims are uncertain unnamed and unrepresented in this 
case.'' \328\ The Congress of the United States, in passing Sec. 3501 
was gravely concerned about these costs, and attempted to restructure 
the rules governing confessions to protect suspects while at the time 
lowering the costs that law abiding citizens must pay. Justice Scalia 
aptly observed a few years ago that Sec. 3501 ``reflect[s] the people's 
assessment of the proper balance to be struck between concern for 
persons interrogated in custody and the needs of effective law 
enforcement.'' \329\ Yet in spite of this the Department has refused to 
defend the judgment of the people before the court's of this country. 
As Justice Scalia bluntly concluded, this failure to defend the law 
``may have produced--during an era of intense national concern about 
the problem of runaway crime--the acquittal and the nonprosecution of 
many dangerous felons, enabling them to continue their depredations 
upon our citizens. There is no excuse for this.'' \330\
---------------------------------------------------------------------------
    \328\ Miranda, 384 U.S. at 542-43 (White, J., dissenting).
    \329\ Davis v. United States, 512 U.S. 452, 465 (1994) (Scalia, J., 
concurring).
    \330\ Id.
---------------------------------------------------------------------------
    It is time for the excuses to end. Hopefully the United States 
Supreme Court will grant review of the Dickerson case. Then, perhaps at 
long last, the Department of Justice will finally have an 
``appropriate'' case for defending Sec. 3501, as it has repeatedly 
promised Congress. There is every indication that the Supreme Court 
will then uphold that Act of Congress, stopping the tragic and 
unnecessary release of dangerous criminals who have voluntarily 
confessed to their crimes. If so, the countless citizens who will 
benefit will have every reason to thank the Congress, and this 
subcommittee, for their efforts to focus attention not just on the 
interests of suspected criminals, but also on those of their innocent 
victims.

    Senator Thurmond. Senator Sessions, I understand you may 
have to leave before the hearing is over, and so you may go 
ahead and ask questions now.
    Senator Sessions. Thank you, sir. I first want to say that 
I am disappointed that the Department of Justice has found it 
not worth their time, apparently, to appear to meet with 
another branch of Government to discuss a statute that they 
have chosen steadfastly not to enforce. I think that really is 
offensive.
    We have discussed it previously, I believe, before 
Dickerson came down, and I personally questioned the Attorney 
General herself. I believe we have discussed it also with the 
Criminal Division chief, and Deputy Attorney General Holder has 
been questioned on this very subject by one of a number of this 
committee.
    It is a well-known fact that Congress believes that laws 
passed by it ought to be enforced by the executive branch and 
used to ensure that those who are guilty of crimes are 
punished. To me, it is really disappointing that no one here is 
even willing to discuss it.
    In fact, what has frustrated me most about the Department's 
position, as I understand it, is its lack of a position. Well, 
Senator, when we have the right case, we will probably take it 
up and argue it. But here we go for decades now without a right 
case, and the fact becomes clear they had no intention of 
taking it up.
    Professor Cassell, I tend to agree that there is a burden, 
a duty on the law enforcement branch to use the legitimate 
tools given them to vindicate those who have been victimized by 
crime. Is that one of the points you were making?
    Mr. Cassell. Absolutely, Senator, and I believe the 
Department has promised--for example, Solicitor General nominee 
Seth Waxman promised this committee--``absolutely'' was the 
phrase he used--that he would defend acts of Congress when 
reasonable arguments can be made on their behalf. I must say I 
find it astonishing that the Department, I guess, is implicitly 
saying that arguments that have been made for the statute are 
not only wrong, but are unreasonably wrong.
    Senator Sessions. I agree, and I believe I may well have 
questioned Mr. Waxman about that when he came up because, as I 
said, this is not some surprise. It has been out there for a 
long time and it is time to confront it.
    Judge Markman, I appreciate your statement and comments, 
and have great respect for your insight into legal issues.
    Judge Markman. Thank you, Senator.
    Senator Sessions. I believe you indicated there was a 
substantial decline in the clearance of cases. Mr. Romley 
alluded to that. I will just sort of ask the two of you; you 
were a former prosecutor and Mr. Romley is now. It goes more to 
just that one case that gets reversed because of a technical 
violation, doesn't it, Mr. Romley? There are cases that you 
know you can't go forward with where that policemen never even 
refer to you or where confessions were never obtained which are 
relevant here. Do either one of you want to comment on that?
    Judge Markman. Well, I think your insight is right on 
target, Senator Sessions. Professor Richman mentioned the fact 
that we don't see very many instances in which evidence is 
suppressed because of failures on the part of the police to 
provide the Miranda warnings properly, and that is correct. But 
the great cost of Miranda is not when the police err in 
delivering the Miranda warnings. The great cost, to the 
contrary, is when they do deliver the Miranda warnings and they 
deter confession evidence that was formerly available to the 
system but is available no longer. That is the cost of Miranda.
    Mr. Romley. Mr. Chairman and Senator Sessions, from the 
prosecutor's perspective from a jurisdiction that receives over 
65,000 felonies every single year, we have seen the impact of 
the Miranda, and let me talk in a different context.
    The issue on Dickerson is the automatic exclusion of a 
statement. Where we see problems, other than what the judge has 
alluded to, is cases in which we do not even charge a 
particular individual because there has been a failure. So I am 
not even sure the statistics even accurately reflect that 
particular problem.
    Interestingly enough, I was invited late last week to come 
and testify before this subcommittee, and although we don't 
keep exact tracking devices through an automated computer 
program, we did pull up--and we saw that a large number of 
cases were not even filed upon. And interestingly enough, it 
wasn't just on the big-type cases; it was really on things such 
as burglary where the new patrol officer--we added 900 new 
officers in the last 4 years to Phoenix and the surrounding 
cities.
    Those new officers, although they have been trained, as Mr. 
Gallegos has indicated, it is the heat of the moment. A tiny 
mistake has been made. We are contiguous to Mexico. A major 
child molestation case recently had a statement suppressed 
because the officer did not clearly state the Miranda warnings 
in Spanish, and it was a voluntary statement.
    What we are here for today, in my opinion, is that I think 
the Justice Department's position is incredulous. The fifth 
amendment goes directly toward coercion tactics, physical or 
psychological abuse. The mere technicality of not saying it 
exactly right should only be a factor in deciding whether or 
not it is a voluntary statement, and we really do see the 
impact and there is a definite impact.
    Senator Sessions. Well, I tend to agree with that very 
much. Sometimes, wouldn't you agree, Mr. Romley, that you have 
a case and a confession but there is some weakness in the 
confession, so it is suppressed you had the confession, the 
defendant would have pled guilty, but knowing that you only had 
circumstantial evidence only without a confession, you have to 
go to trial.
    Aren't you as a prosecutor, as well as the police 
department, challenged every day with trying to maximize your 
resources? And aren't these things also impacting on your 
ability to do your job?
    Mr. Romley. Senator Sessions, absolutely. I am not talking 
from a philosophical point of view. This is the practical 
world, where the rubber meets the road.
    Senator Sessions. The real world. That is what we are 
talking about.
    Mr. Romley. Really, there, and there is no question. And 
nothing is worse than to sit there and have some corroborating 
evidence and the confession makes the case and it is thrown 
out, and we have to go back to the victims. And you show no 
involuntariness, no abuse, nothing. The community does not 
understand that. It has driven the criminal justice system to 
where there is a lack of faith that it is really providing them 
with protection. We need to rebalance it. We need to rethink 
Miranda and bring it back, in my opinion, to some degree.
    Senator Sessions. Frankly, you talk about a young officer. 
Let's take an example of something that would clearly fail to 
meet Miranda. There is a burglar alarm off. A young policeman 
grabs one person running one way and the other one going the 
other way, and he says, who was with you? And the buglar says, 
Billy made me do it. Is that admissible or not?
    Mr. Romley. Well, today that is, and that goes toward the 
constitutionality argument. It is the Quarles decision, and 
this kind of argues against the position that it is a 
constitutional requirement. The Quarles decision out of New 
York--I believe it was New York--basically gave an exemption to 
the Miranda ruling that in a public safety context that may be 
admissible. So, that is why we need to get this clarified to 
such a degree, and it goes against the Department of Justice 
argument.
    Senator Sessions. Fundamentally, if he is being held, he is 
in custody. When people confess, don't they spill the beans and 
whole gangs of criminals get convicted instead of just the one? 
Is that a realistic downside to reducing the number of 
confessions we get?
    Judge Markman. Again, I think you are right, Senator 
Sessions. I mean, there is no evidence that is more critical to 
the effective operation of the criminal justice system than 
confession evidence, since it comes from the very individual 
who is in a position to know more about what took place than 
any other person in the world.
    The impact of Miranda, regrettably, is that when Miranda 
works, it discourages people from providing that information to 
the system. I mean, it is effective. It is effective in the 
sense that if you are going to marshall police resources to the 
end of encouraging suspects not to say anything, eventually you 
are going to succeed, and Miranda has, in fact, succeeded. And 
as you suggest, Senator, the cost has been enormous.
    Senator Sessions. I don't think people fully understand the 
cost of it. Sometimes, the person you catch is the little fish 
who slips up before he knows it and he has confessed on the big 
criminal. That is lost forever.
    Do you remember, any of you, when Miranda was being argued 
and the defenders of it would say, well, nothing done here that 
a little shoe leather on the part of the police won't solve? 
Now, Mr. Romley, isn't it true that in some cases if a person 
doesn't give you the information, you will never prove who 
committed a crime?
    Mr. Romley. Senator Sessions, no question about it.
    Senator Sessions. That is the reality, isn't it?
    Mr. Romley. It is the reality of the system.
    Senator Sessions. And this idea that police officers can go 
out and investigate a burglary and always find out every member 
that was involved in it is dream land, in my view.
    Mr. Romley. That is correct.
    Mr. Cassell. Senator, I actually collected some data in 
Salt Lake City on that. We went into the district attorney's 
office there and had them look at a sample of cases, and they 
found that in 61 percent of the cases that they were filing the 
confession was necessary to that prosecution. So we are talking 
about a huge number of cases that can only be filed because of 
some information obtained from the defendant.
    Senator Sessions. It is remarkable to me--and I think it is 
a tribute to the police--that they can deliver Miranda and 
still be able to maintain contact, with the defendant and often 
get them to go on and confess. I used to make the joke, I 
wonder why they don't require you to say, if you are a plain 
idiot, you will confess; if not, you will keep your mouth shut 
and call your lawyer. Why don't you make that part of the 
Miranda statement?
    Do you have any comment on that?
    Mr. Gallegos. Yes, Mr. Chairman and Senator Sessions. As I 
testified, I have been in law enforcement since 1964, and in my 
experience I have never seen a person convicted of any crime 
without other evidence other than a confession. And usually a 
confession is simply a tool for the investigation, for the 
police officers to use.
    And I would echo that the prosecutors here, and Judge 
Markman would agree, that they are not going to convict someone 
solely on the confession.
    The experience that police officers have all the time is 
Miranda sets a threshold of such requirement of investigation 
in the gathering of evidence and in the presenting of the 
evidence that all-inclusive is what really adds to convictions. 
But is time-consuming and officers do have to go out and 
investigate and develop the case, and they solely don't do it 
on the confession. So I think it adds to a case, but it doesn't 
necessarily jeopardize the case.
    Senator Sessions. And one of the things it does is once you 
have got that corroboration and a confession, you probably have 
a 95-percent chance they will plead guilty.
    Mr. Gallegos. Absolutely, sir.
    Senator Sessions. If you don't have that confession, you 
have got the corroborative circumstantial evidence. You may 
have to spend 3 days in trial with uncertain verdict, whereas 
the person is plainly guilty if his statement was admissible.
    Mr. Richman. Senator Sessions----
    Senator Sessions. Let me ask the two of you one thing and 
then I will let you comment. I have been in this body for a 
little over 2 years, and I was a Federal prosecutor for 15 and 
an attorney general for 2. So prosecuting is my business, and I 
have been there and I have interviewed police officers and 
victims by the hundreds.
    Do you have any numbers, or are you aware of any statistics 
that would indicate that a confession without a Miranda is any 
more unreliable than a confession after Miranda has been given?
    Mr. Thomas. No, Senator Sessions, I don't have any data 
along those lines. In fact, because most suspects waive the 
Miranda rights--as you said a minute ago, and it is a very 
insightful comment, the police are very effective in persuading 
suspects to waive their Miranda rights. They do so in most 
cases, and because suspects do waive in most cases, then the 
rules that are left to govern the interrogation are the old 
voluntariness rules.
    So, in fact, in many cases we wind up with the old 
voluntariness rules being what courts use to decide whether the 
waiver and the later confession are valid. So, therefore, it 
seems to me Miranda probably does not add very much, if 
anything, to the protection of the Due Process Clause in terms 
of preventing unreliable confessions.
    Senator Sessions. Professor Richman, on this or any other 
subject would you like to cover?
    Mr. Richman. Just to clarify one point, Senator, you were 
speaking about the confession of the small fish being used down 
the road against the big fish. Regardless of what happens with 
Miranda or 3501, that really can't happen unless the sixth 
amendment jurisprudence of the Supreme Court is radically 
changed. The confessions of an out-of-court conspirator, unless 
he actually takes the stand and testifies, which in many cases 
obviously won't happen, cannot be used, although there will be 
a case in front of the Supreme Court this term or next that may 
clarify this somewhat.
    Senator Sessions. What I would say about that is when you 
confess, you plead guilty. I mean, people who confess, have 
given up. They have said, you have got me, I am not going to go 
down there and lie, now just be as light and kind to me as you 
possibly can. And they say, well, who else was involved? Well, 
Billy and John and George.
    So that is how it happens, in reality, would you not agree, 
Mr. Romley?
    Mr. Romley. Senator Sessions, absolutely. From a 
theoretical standpoint, Professor Richman raises a 
constitutional issue. But the real way that it works--say you 
have a small fish that may talk about individuals higher up in 
the hierarchy that are involved in criminal activity. What 
happens is that you offer that person some type of a plea 
bargain that may be a little bit more favorable for his 
testimony. He then takes the stand. The right of confrontation 
is overcome, and that is how you get to the higher criminals 
within an organization. It is a common tactic and it is not 
like you can't do it. It does occur on a day-to-day basis.
    Senator Sessions. Well, we interrupted you. I apologize, 
Professor Richman.
    Mr. Richman. I just wanted to clarify that what I think you 
are quite right pointing out is what you would like is as soon 
as possible to get this small fry turned around and ready to go 
cooperating. One thing Miranda does do, and the jurisprudence 
of Miranda does do is, since he has a lawyer, he is quite sure 
that his confession is coming in. When warnings are given 
appropriately, litigation is generally trivial. It really comes 
up, and he probably will be cooperating quicker.
    I just want to make one broader point, which is there is 
some reference by Professor Cassell to the politics of all of 
this. And I really can't speak to the politics; as just an 
exline prosecutor and as a professor, it is beyond me. But I am 
mystified by the fact that given that most of the custodial 
confessions in the United States happen in the State, not just 
because more criminal prosecutions occur in the State, but 
because that really is the meat and potatoes of State law 
enforcement, I think it is rather odd that in State 
jurisdictions, which I don't think in most States are 
particularly nice to criminals, and the alliance with criminals 
that Professor Cassell spoke about, we do not have this kind of 
move to 3501 legislation.
    On the other hand, in the Federal system where for the most 
part, at least in the office I came from--our focus was on 
white collar cases--there really will be very few custodial 
interrogations now, because now under the recent legislation 
that the Congress just passed, once the defendant has a lawyer, 
the prosecutors or their agents really can have no contact 
whatsoever with those suspects, shutting down the business 
completely.
    So I really am a bit mystified as to why, in Congress, you 
are focusing on matters that the States normally are concerned 
with, while on the same hand when it comes to a strong Federal 
enforcement position Congress has decided for restraint lately.
    Senator Sessions. You are referring to the Hyde legislation 
that just passed?
    Mr. Richman. I am referring to Ethical Standards for 
Federal Prosecutors Act.
    Senator Sessions. You are right. It slipped in on a 
conference bill that had so much in it that the train couldn't 
be stopped.
    Do you have any comment about that, Judge Markman? Are you 
familiar with the Hyde----
    Judge Markman. I am familiar generally, but not 
sufficiently to comment on the details.
    Senator Sessions. I don't want to take the chairman's time. 
I have enjoyed this conversation. We do have a juvenile crime 
bill on the floor and I am managing it.
    Mr. Romley, do you have a comment?
    Mr. Romley. Senator Sessions, Mr. Chairman, if I could just 
respond briefly to Professor Richman's one comment that States 
have not moved forward with statutes such as that, I think that 
from a general perspective most States haven't, but Arizona 
did. In 1969, Arizona passed a statute that pretty much 
emulated 18 U.S.C. 3501.
    In 1983, our Arizona Supreme Court ruled that--it pretty 
much abrogated it, and I think that that is the real reason why 
we must get this up to the U.S. Supreme Court to decide the 
constitutionality. So States have attempted to be moving in 
that direction to some degree, at least, and we need to get 
this resolved at the U.S. Supreme Court. I think that the 
arguments are fair, they are reasonable, and I would hope the 
Department of Justice would change their position.
    Senator Sessions. Professor Cassell, you can say what you 
would like, but would you not agree that the present state of 
Federal law makes it difficult for States to get a fair hearing 
on these cases? If the Federal law was changed, the States may 
well realize that the States could also change their laws.
    Mr. Cassell. Exactly, that is the experience we have had in 
Utah. I am involved with a number of crime victims 
organizations in Utah and we are certainly watching this case, 
and if the opening is there--if a favorable decision comes from 
the Supreme Court, then we will certainly seriously consider 
legislation.
    Also, back in the 1980's Utah passed some legislation on 
the exclusionary rule. It ended up being invalidated on a 
Federal constitutional argument. So I think, as Mr. Romley was 
suggesting, if this matter can be straightened up at the 
Federal law, it will certainly open the door to States like 
Utah, Arizona. Indiana, I believe, had a similar statute at one 
point, and I would anticipate many others would move forward in 
that direction as well.
    Senator Sessions. Well, I respect those of you who are 
nervous about this, the thought that the police are doing these 
bad things. But I really don't find it so in my experience. I 
believe that police officers daily do their best, and if we got 
a 15- or 20-percent increase in the number of cases that 
confess, you would also pick up a lot of co-defendants, career 
criminals. Cases wouldn't have to go to trial. People wouldn't 
be released to commit another year's worth of crimes before 
they get caught again.
    It is the kind of thing that is the reality out there, and 
my own view is the costs of Miranda far exceed the benefits. 
Judge Markman, your analysis of it--I remember reading that at 
the time--was just brilliant and superb. I remember the work 
that you did on that and I thank you for it, and the work for 
the Department of Justice.
    Judge Markman. Thank you, Senator.
    Senator Sessions. And I would say about Chairman Thurmond, 
I am not sure a lot of people, Mr. Chairman, realize--I was a 
State attorney general and Federal U.S. Attorney--how much 
benefit the Federal system has achieved from the changes and 
leadership you gave to it, particularly as chairman of this 
committee.
    We have the Speedy Trial Act, where cases are literally 
tried within 70 days. There is honesty in sentencing and 
guidelines that mandate consistency of sentencing. Frequently, 
bail is denied for repeat, dangerous offenders, and they are 
given a prompt trial. One reason States are giving people bail 
when they shouldn't is because they have to wait 1 year or 2 to 
get tried. And you can't keep them in jail that long; it is 
just wrong. So if you are going to deny bail, you need a speedy 
trial. And there is no parole; parole has been eliminated.
    Mr. Chairman, thank you for your leadership on all of 
that--and I am pleased to see you were an original sponsor of 
3501, and I am amazed and pleased to join you on this committee 
to continue to fight for those issues.
    Thank you.
    Senator Thurmond. Senator, it is a pleasure to have you 
here, and I appreciate your comments. I was equally 
disappointed that the Justice Department refused to appear at 
this hearing. They should tell us in person why they are 
ignoring a law passed by the Congress. Thank you very much.
    I have a few questions here I would like to propound.
    Judge Markman, some officials in the Justice Department 
have indicated that the policy of prior administrations was 
that they would not invoke section 3501 in instances in which 
Miranda was applicable. Based on your personal experience in 
the Reagan and Bush administrations, did they have a policy 
prohibiting U.S. attorneys from raising section 3501?
    Judge Markman. During the Reagan administration, when I 
served as Assistant Attorney General, of course, there was no 
such policy. And as I have indicated, we made a number of 
efforts to attempt to promote reform of Miranda. During the 
Bush administration, where I served as U.S. attorney, there was 
also no prohibition. In fact, there are a number of instances 
in which 3501 was affirmatively invoked by individual U.S. 
attorneys.
    Senator Thurmond. Judge Markman, while you were U.S. 
attorney in the Bush administration, did you ever attempt to 
invoke section 3501?
    Judge Markman. Yes, sir, I did. One case, in particular, I 
recall I personally handled. It was People v. Kirkland and I 
did personally raise the issue of a voluntary confession under 
3501, and my recollection is that it was accepted by the trial 
judge. There were no further appeals in that case, however.
    Senator Thurmond. Mr. Romley, I understand that Arizona has 
a statute very similar to section 3501. If the Supreme Court 
considers section 3501 and concludes that Miranda is not 
constitutionally required, would that decision help you enforce 
your voluntary confession law in Arizona, and would it 
encourage other States to pass a similar law?
    Mr. Romley. Mr. Chairman, yes, Arizona does have a law that 
is similar to 3501. It was passed in 1969. Our Arizona Supreme 
Court did rule that a voluntary confession, in the absence of 
Miranda, would be suppressed and therefore it is not applicable 
at this time. There is no question in my mind, Mr. Chairman, 
that if 3501 was held to be constitutional and the Supreme 
Court took that and ruled in that way, it would help Arizona to 
be able to allow voluntary confessions to come in.
    Senator Thurmond. Mr. Romley, some say that enforcing 
section 3501 will complicate the consideration of whether a 
confession is voluntary and requires more suppression hearings 
in court. It seems to me that the only time more suppression 
hearings will be needed is if Miranda is not strictly complied 
with.
    Do you think that using section 3501 would make it harder 
for the courts and the prosecutors, or would it simplify the 
process by eliminating the strict Miranda exclusionary rule?
    Mr. Romley. Mr. Chairman, if 3501 were in effect, from a 
practical standpoint in literally all cases any defense 
attorney will ask for a voluntariness hearing in any case. So 
there will always generally be a suppression hearing there. I 
don't think it will increase the workload itself. It will 
definitely help, though, the prosecutor in a voluntary 
statement to be able to hold those that I believe are guilty of 
a crime accountable for their actions.
    Senator Thurmond. Mr. Gallegos, as you know, section 3501 
encourages police to give the Miranda warnings because the 
warnings are a factor in determining whether a confession is 
voluntary. The question is do you think that if section 3501 is 
upheld, police will continue to give Miranda warnings?
    Mr. Gallegos. Absolutely, Mr. Chairman. Police have been 
trained since 1966 to give the Miranda warnings, and really it 
has become commonplace in police practice. What we are looking 
for is a commonsense approach to those times that there are 
mistakes in the application of Miranda. And police do want to 
use tactics that are noncoercive and use of force and other 
kinds of means to get confessions that can't be upheld in 
court. So Miranda will still be used. It is just a different 
twist to it.
    Senator Thurmond. Professor Thomas, the question of whether 
Miranda is required by the Constitution is open to different 
interpretations. However, until and unless the Supreme Court 
considers this issue, do you believe that the Justice 
Department should attempt to enforce section 3501 in the lower 
Federal courts?
    Mr. Thomas. Senator, I certainly agree that ultimately this 
is a question for the Supreme Court. With respect to whether 
the Department of Justice ought to be using the statute, my 
honest opinion is, yes, they should. I sort of disagree with my 
friend, Professor Richman, on that.
    It seems to me that the statute is clear enough and it 
gives the prosecutor an opportunity to use a different theory 
to get a confession admitted, and that if a prosecutor is 
trying to admit a confession, he or she ought to use all the 
avenues available. So, actually, I do agree that the Department 
of Justice should be using 3501, although I still believe it is 
probably unconstitutional.
    Senator Thurmond. Professor Richman, as you know, the 10th 
circuit in Crocker and the fourth circuit in Dickerson have 
both upheld section 3501. I know you do not agree with these 
decisions. However, given that the two circuits have found 
section 3501 constitutional, do you think that a reasonable 
argument can be made that section 3501 is constitutional, and 
if so, doesn't the Justice Department have a duty to defend the 
statute before the Supreme Court?
    Mr. Richman. I certainly agree that certainly an argument 
can be made, a good argument can be made as to 
constitutionality. One of the problems has been you have 
Supreme Court language going all over the board since Miranda 
with respect to the necessity for these precise warnings to be 
given.
    As to what the Justice Department's position should be with 
respect to the constitutionality of the statute, I am not 
speaking as a member of the Department, and from I gather today 
there have been certain commitments made in the past by Justice 
Department officials about what their positions would be. I 
don't know what those commitments were.
    If I were writing on an empty slate, and were I to be 
involved in making the call on this, I would say that the 
Justice Department is not obliged to defend the 
constitutionality of a statute that, in its opinion, very much 
undermines a policy decision to have Miranda warnings given 
across the board. As I said, this is not considering past 
statements by the Justice Department which I am unaware of.
    Senator Thurmond. Professor Cassell, I wish to commend you 
for your determination to get section 3501 enforced and your 
willingness to stand alone before the fourth circuit to defend 
it. Of course, that should not have been necessary. I believe 
the administration has a constitutional duty to enforce laws 
passed by the Congress if a reasonable argument can be made to 
uphold the law.
    Please explain the executive branch's constitutional duty 
to enforce the laws, and has the Clinton administration 
defended laws before in which reasonable arguments could be 
made against its constitutionality?
    Mr. Cassell. Yes, Senator. The Department has repeatedly 
said that they have a duty to defend acts of Congress where 
reasonable arguments can be made on behalf of a law. So I don't 
think that there is any dispute about that. Clearly, that would 
be at least the view of Congress and that is what the executive 
branch has promised Congress it will do.
    Then the question becomes: If there is a reasonable 
argument to defend section 3501? And I think it is interesting 
when you look at the six of us that are here today, four of us 
have testified very directly in support of the law, that it 
seems to be constitutional, in our view. The other two 
witnesses, Professor Richman and Professor Thomas have both 
suggested the same thing.
    Professor Richman just said a good argument can be made for 
the constitutionality of the statute, and Professor Thomas 
indicated that the Department ought to be using this. So I 
think all six witnesses here today would take what I think is 
the commonsense position here that there is a reasonable 
argument to be made on behalf of 3501.
    And I should say you mentioned that I had to stand alone in 
the fourth circuit. I stood alone, but I felt that behind me 
were many career prosecutors all over the country that 
supported my position. Unfortunately, as we have seen in a 
number of cases, there are political appointees within the 
Department of Justice that don't want the voices of those 
career prosecutors to be heard, and I was very glad to have the 
opportunity to express their views as well.
    Senator Thurmond. Professor Cassell, some feel that the 
Miranda ruling created two hurdles to admit a confession. The 
first is whether the precise Miranda were given. The second is 
whether the confession was otherwise voluntary. Under section 
3501, there is only one hurdle. Is having one hurdle rather 
than two going to complicate matters or simplify them?
    Mr. Cassell. I think it is certainly going to simplify 
matters, Senator. Obviously, today, there is extensive 
litigation in a number of cases over Miranda technical details. 
The Dickerson case is a good illustration of that. There was an 
extensive hearing over the issue of exactly what time of the 
day were the Miranda warnings administered. All of that would 
become irrelevant under section 3501.
    And I think we also are in a position to see how it is 
simplifying things. I understand that within district courts 
within the fourth circuit, it has actually simplified a number 
of hearings now. What were going to be complicated Miranda 
issues have simply disappeared. So, certainly, it is going to 
make life easier for Federal prosecutors and for Federal 
courts.
    Senator Thurmond. Professor Cassell, my understanding of 
the position of the Department of Justice is that Miranda is 
constitutionally required, so they will not enforce section 
3501 in the lower Federal courts. But they have not decided 
what they will do if the issue reaches the Supreme Court.
    Were it not for people like you, would the courts have 
gotten the opportunity to consider whether the statute was 
constitutional?
    Mr. Cassell. Unfortunately, Senator, I think the only way 
the issue could be presented was by some of the organizations 
that I represented, the Washington Legal Foundation and a 
number of other organizations that are very concerned about the 
rights of law-abiding citizens and victims of crime.
    As the fourth circuit opinion in Dickerson itself 
mentioned, it was our efforts as a friend of the court that 
brought this statute to the attention of the court. And the 
fourth circuit mentioned there are some very serious ethical 
issues that are raised when parties do not call to the court's 
attention relevant legal authority.
    I would think that a statute governing confessions, which 
is the way the Supreme Court has described 3501, would be the 
type of thing that the Department of Justice would always bring 
to the court's attention. Yet, in Dickerson they were failing 
to do this.
    Senator Thurmond. Professor Cassell, the court in Dickerson 
said that the Government was elevating law over politics. What 
do you think they meant by that statement?
    Mr. Cassell. Well, I think for reasons that the Department 
has never articulated--and we could speculate about it, but for 
some reason the Department of Justice has decided that they 
want to do whatever they can to support the efforts of, for 
example, the American Civil Liberties Union, the National 
Association of Criminal Defense Lawyers, and defense attorneys 
such as the attorney that represents Mr. Dickerson.
    I think I called that an unholy alliance, and I think it is 
very odd when our Department of Justice which, of course, is 
charged with prosecuting the laws turns around and allies 
themselves with those who are typically on the other side of 
the courtroom, shall we say.
    Senator Thurmond. Professor Thomas, some have argued that 
Section 3501 will roll back the clock to the confession 
standard that existed pre-Miranda. Do you believe that Section 
3501 is an improvement on the law in this area from how it 
existed at the time of Miranda?
    Mr. Thomas. Yes, I do, Senator. I think 3501 is a very 
well-drafted piece of legislation. I think it is an improvement 
over the common law view of voluntariness, and I would much 
prefer that to the common law view.
    That said, however, there is still the constitutional 
question. And if I might disagree slightly with my friend Paul 
Cassell, in response to your question about whether 3501 would 
simplify matters, he said it would. And I think it would, but 
only if most police continue to give Miranda warnings in most 
cases because Miranda is a nice safe harbor. Miranda makes it 
easy to get confessions admitted as long as it is complied 
with.
    So as long as there are just a few cases where the Miranda 
warnings were not given and we have to deal with the 
voluntariness issue, 3501 presents a nice vehicle to do that. 
And I think I probably agree with Mr. Gallegos, too, that the 
police will continue. But if for some reason they did not 
continue to give Miranda warnings, then I think 3501 hearings 
would become rather complicated because of the fact that it is 
such a good statute, Senator.
    It sets out six factors, I believe, or five factors that 
have to do with voluntariness. So I think that this could 
become a rather complicated procedure if it had to be done in 
most cases. But to the extent that the police continue to give 
Miranda warnings, then I think it is pretty good, actually.
    Senator Thurmond. I think we have about completed this 
hearing. Before adjourning the hearing, I wish to note that I 
am pleased to have received a letter from the National 
Association of Police Organizations supporting the enforcement 
of section 3501, and wish to place a copy of it in the record.
    [The letter referred to follows:]

        National Association of Police Organizations, Inc.,
                                      Washington, DC, May 11, 1999.
Hon. Strom Thurmond, Chairman,
Hon. Charles E. Schumer, Ranking Democrat,
Subcommittee on Criminal Justice Oversight,
Senate Committee on the Judiciary, Washington, DC.
    Dear Chairman Thurmond and Senator Schumer: The National 
Association of Police Organizations (NAPO), representing more than 
220,000 sworn law enforcement officers through 4,000 unions and 
associations nationwide, appreciates the opportunity to provide this 
brief statement, in connection with the Subcommittee's Thursday, May 
13, 1999, hearing, ``The Clinton Justice Department's Refusal to 
Enforce the Law on Voluntary Confessions''.
    We have had an opportunity to review the case of United States v. 
Dickerson, 166 F.3d 667 (4th Circuit 1999), which upheld and applied 18 
U.S.C. Sec. 3501, allowing for voluntary confessions to be admitted 
into evidence, notwithstanding the refusal of the Justice Department to 
enforce this provision in federal criminal cases and its recent 
assertion in the Dickerson case that the provision was 
unconstitutional.
    NAPO firmly believes that the Administration, specifically the 
Justice Department, has an obligation to defend this law, especially in 
the context of a voluntary and uncoerced incriminating statement by 
Charles Dickerson, who was subsequently charged with bank robbery and 
related felonies. The Justice Department's refusal to defend this law 
could have resulted in the dismissal of these charges against Mr. 
Dickerson and may have contributed to the non-prosecution of dangerous 
felons, as noted by Justice Scalia in the case of Davis v. United 
States, 512 U.S. 452 (1994).
    It is clear from the cases cited in Dickerson that the U.S. Supreme 
Court has never held that the Miranda warnings are constitutionally 
compelled. In fact, there is contrary language, including Chief Justice 
Warren's own analysis in Miranda. The Department's apparent position 
that the warnings are constitutionally compelled and that evidence 
obtained without the warnings must automatically be excluded, is 
troubling. We share the concern expressed in the Fourth Circuit's well-
reasoned opinion in Dickerson, as articulated by Paul G. Cassell, 
Professor, University of Utah, College of Law, about the Department's 
``elevation of politics over law''.
    There has been much public misconception about the Dickerson case, 
Sec. 3501, and the impact on Miranda. Those opposed to this statutory 
provision and this decision characterize it as a rollback, where 
warnings will no longer be given to suspects and coerced confessions 
allowed into evidence. That is not the situation. The consequences will 
be much more limited. If ultimately upheld by the Supreme Court, 
Sec. 3501 would no longer prevent an incriminating statement by a 
suspect from automatically being excluded from admission into evidence, 
even if the Miranda warnings were not given because the police did not 
consider the suspect in custody, for example.
    We believe that it is extremely doubtful that the vast majority law 
enforcement officers would stop giving Miranda warnings and that their 
departments would support that position. These warnings help assure 
uncoerced and voluntary statements. But, as the Congress recognized in 
enacting Sec. 3501, the presence of the warnings is indicative of a 
lack of coercion but is not necessarily determinative on that issue. 
Indeed, under Sec. 3501, the giving of the four Miranda warnings to a 
suspect in custody, prior to questioning, must be taken into 
consideration by the judge in determining the voluntariness of the 
confession or incriminating statement, and the failure of officers to 
give the warning will only increase the burden on the prosecution to 
show that a confession or statement was voluntary and not coerced. 
However, rather than focus on whether the Miranda warnings were 
required and given, a court would have to focus on whether the 
suspect's statement was uncoerced and voluntarily given.
    The court's ruling in Dickerson will especially address the 
``grey'' areas, where there is a genuine dispute as to whether the 
warnings were required. What this means is that if the police do not 
provide the warnings, because they do not believe that they have not 
placed a suspect in custody--he or she is free to leave--or that they 
have not begun to interrogate a suspect who is in custody, but a court 
later disagrees, they will still be able to use any incriminating 
statement, provided, once again, that the court finds that it was 
freely and voluntarily given and not in violation of the suspect's 
privilege against self-incrimination.
    Section 3501 applies only to Federal prosecutions and not to 
prosecutions by state and local authorities. Hence, it is not directly 
applicable to state and local law enforcement officers, the officers 
whom NAPO mainly represents. However, NAPO strongly believes that the 
Dickerson case and the outcome of the Supreme Court's expected review 
of that case will eventually significantly impact local law 
enforcement. State courts can be expected to follow the Dickerson 
ruling, reconsider the issue, and fashion court-made law on whether the 
failure to give Miranda warnings requires the exclusion of evidence 
under both the federal and state constitutions. Likewise, depending on 
the eventual outcome of this controversy, state legislatures can be 
expected to consider legislation, similar to Sec. 3501, at the state 
level.
    We commend you for holding this hearing, to shed light on the 
Justice Department's past refusal to defend this law and on the 
Department's future plans, if the U.S. Supreme Court accepts review. It 
would also be helpful to know the Department's current directives to 
its prosecutors in the states covered by the Fourth Circuit concerning 
implementation of the law.
    Thank you for the opportunity to comment on this important issue. 
Please let us know if we can be of further assistance.
            Sincerely,
                                   (Signed)  Robert T. Scully

                                   (Typed)  Robert T. Scully,
                                                Executive Director.

    Senator Thurmond. I also would like to place in the record 
a letter from former Attorney General Ed Meese, Dick 
Thornburgh, and William Barr explaining the Reagan and Bush 
administrations' policy in support of section 301.
    [The letters referred to follow:]

                                           Edwin Meese III,
                                      Washington, DC, May 12, 1999.
Hon. Strom Thurmond, Chairman,
Subcommittee on Criminal Justice Oversight,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: This letter responds to your questions 
concerning various aspects of the Department of Justice's views and 
positions on 18 U.S.C. Sec. 3501 during the Administration of President 
Ronald Reagan. Let me provide you with a brief description of the 
various decisions that we made in the Department of Justice concerning 
the statute and then I will answer your specific questions.
    After an exhaustive review of the question during my tenure as 
Attorney General, the Department of Justice's Office of Legal Policy 
concluded that the rigid exclusionary rule of Miranda v. Arizona was 
not constitutionally mandated, and that if the question were presented 
to it, the Supreme Court would likely agree with this conclusion. We 
published this study under the Department's auspices, as the conclusion 
of the Department of Justice on the question.
    In this same study, we concluded that 18 U.S.C. Sec. 3501 was 
constitutional, and that admission of voluntary confessions pursuant to 
its provisions was accordingly a legitimate objective for the 
Department to seek.
    I also asked Associate Deputy Attorney General Paul Cassell to 
direct a search for the right case to use as a vehicle for testing the 
statute's constitutionality in the Supreme Court. Consequently, 
Department attorneys proposed a Fifth Circuit case for consideration 
that the Solicitor General argued was not a good one to use as a test. 
I decided against seeking to invoke the statute in that case, because 
we would have been raising the argument for the first time in a 
petition for rehearing en banc of a panel decision by the court. That 
is my recollection of the decision I made at the meeting during the 
spring of 1987 referred to in Charles Fried's book, ``Order & Law,'' at 
pp. 45-47.
    We continued to monitor cases, and the Department did in fact argue 
for admission of statements pursuant to the statute in at least one 
later case of which I am aware, United States v. Goudreau. This was in 
a brief filed in the Eighth Circuit on October 20, 1987, several months 
after the meeting Professor Fried described. In that case a police 
officer with the Bureau of Indian Affairs was investigated and 
subsequently indicted for using excessive force during an arrest. He 
gave his version of events during an interview at the Law Enforcement 
Services Building on the reservation, which he attended at his 
supervisor's instructions. The district court suppressed his 
statements, finding that he should have received Miranda warnings 
before the interview. The government took an interlocutory appeal. The 
Department's principal argument to the Eighth Circuit was that the 
officer was not in custody at the time he made the statements, and 
therefore Miranda warnings were unnecessary. But we also made the 
alternative argument that the statements were admissible under 
Sec. 3501 regardless of whether the officer should have been given the 
warnings, because the officer had made the statements voluntarily. The 
Eighth Circuit did not reach our second argument, because it decided 
the statements were admissible as a result of the first argument.
    I should add that during my tenure as Attorney General, so far as I 
am aware, neither I nor anyone else at the Department of Justice ever 
directed anyone in a United States Attorney's Office not to make an 
argument based on Sec. 3501. Nor did we ever pull back a brief in which 
such an argument had been made.\1\
---------------------------------------------------------------------------
    \1\ The only decision that I made against the use of Sec. 3501 was 
in the Fifth Circuit case mentioned above, where the decision was 
consistent with a United States Attorney's office's own reservations 
about invoking the section given the posture of the case. In that case, 
my decision was not the result of doubts about the statute's 
constitutionality, but the fact that the consensus in the Department 
was that several features made that case a poor vehicle for testing the 
statute's constitutionality.
---------------------------------------------------------------------------
    Thus, our position on Miranda was: (1) that none of Miranda's 
procedural requirements, including its exclusionary rule, is 
constitutionally required (and, I should add, I believe this was the 
position of every other prior Administration other than that of 
Presidents Lyndon Johnson); (2) that 18 U.S.C. Sec. 3501 was 
constitutional; (3) that the Department could appropriately invoke 
Sec. 3501 in the lower federal courts to seek the admission of 
voluntary but unMirandized statements, and in fact we did so in at 
least one case of which I am aware; and (4) that not only were there 
reasonable arguments the Department could make in defense of Sec. 3501 
(the standard the Department has historically applied in considering 
whether to defend a federal statute), but that those arguments were 
correct, and that the Department should defend Sec. 3501 against 
constitutional challenge throughout the federal court system. To the 
extent Department officials have said anything to the contrary, I would 
respectfully suggest that they are mistaken.
    Because I share your concern about the current Administration's 
refusal to defend the constitutionality of section 3501, I commend you 
for holding an oversight hearing to explore this important issue. Thank 
you for this opportunity to share my views.
            Sincerely,
                                   (Signed)  Ed

                                   (Typed)  Edwin Meese III.
                               __________
                                                   October 7, 1999.
Hon. Strom Thurmond,
Chairman, Subcommittee on Criminal Justice Oversight, Committee on the
Judiciary, Dirksen Senate Office Building, Washington, DC.
    Dear Mr. Chairman: This letter responds to your questions 
concerning the positions the Department of Justice took during my 
tenure as Attorney General on the constitutional status of various 
aspects of Miranda and 18 U.S.C. Sec. 3501.
    As to Miranda, by the time I became Attorney General, I believe the 
Department viewed it as clear from the Supreme Court's cases that the 
warnings set out in that case were not themselves constitutional 
rights, but were rather, as the Court had by that time said repeatedly, 
prophylactic devices intended to add an extra layer of protection to 
the rights set out in the Fifth Amendment. We routinely described the 
warnings that way in our Supreme Court briefs, see, e.g., Minnick v. 
Mississippi, No. 89-6332, Brief for the United States as Amicus Curiae 
Supporting Petitioner; Michigan v. Harvey, No. 88-512, Brief for the 
United States as Amicus Curiae Supporting Petitioner, and I assume we 
did so in our briefs in the lower federal courts.
    Likewise, we regularly argued that Miranda's exclusionary rule was 
not constitutionally required, distinguishing it from the rule 
requiring exclusion of coerced confessions, which came directly from 
the Fifth Amendment. Therefore, for example, we argued that since a per 
se exclusionary rule will inevitable result in the exclusion of some 
voluntary confessions, Miranda's exclusionary rule should not be 
applied in cases where the risk of coercion against which Miranda 
sought to protect was slight, see, e.g., Minnick v. Mississippi, supra. 
Likewise, we argued against application of Miranda's exclusionary rule 
when the additional deterrence that would stem from it was limited, and 
the harm to the search for truth that a criminal trial is supposed to 
serve would be great. See, e.g., Michigan v. Harve, supra. We noted 
that such considerations were legitimate in deciding the scope of 
Miranda's exclusionary rule precisely because it ``sweeps more broadly 
than the Fifth Amendment itself,'' Oregon v. Elstad, 470 U.S. 298, 306-
07 (1985), whereas they had no role in deciding the scope of the Fifth 
Amendment's exclusionary rule, which bars admission of compelled self-
incrimination without regard to policy considerations of this type, 
Brief in Minnick, supra; brief in Harvey, supra.
    With regard to Sec. 3501, I do not remember any cases or 
discussions within the Department that I was aware of that related to 
the invocation of that statute during my tenure as Attorney General. At 
the same time, I certainly know of no policy that would have prevented 
individual U.S. Attorneys from making arguments based on this 
provision. In fact, while I was not aware of it at the time, I have 
recently learned that while I was Attorney General, at least one U.S. 
Attorney did invoke the provision in at least one district court case.
    Finally, I do not believe the question of whether to defend the 
constitutionality of Sec. 3501 came up during my tenure. What I can 
say, however, is that when an Act of Congress is challenged as 
unconstitutional, the Department of Justice's long-standing practice, 
which we followed, is to defend the statute against that challenge 
unless there is no reasonable argument that could be made in its 
defense. See, e.g., The Attorney General's Duty to Defend the 
Constitutionality of Statutes, 43 Op. Atty. Gen. 325 (1981) (Opinion of 
Attorney General Smith); The Attorney General's Duty to Defend and 
Enforce Constitutionally Objectionable Legislation, 43 Op. Atty. Gen. 
275 (1980) (Opinion of Attorney General Civiletti).\1\
---------------------------------------------------------------------------
    \1\ The Department has generally recognized one limited exception 
to this rule, pursuant to which it also generally will not defend 
statutes that it believes unconstitutionally trench on the executive 
branch's power, even if there is a reasonable argument that could be 
made in favor of the statute. See Civiletti opinion cited above. That 
exception plainly has no application in the case of Sec. 3501, which 
attempts to restore, rather than contract, executive power.
---------------------------------------------------------------------------
    Under that standard, looking at the question now, it seems to me 
that Sec. 3501 is easily defensible. The Fifth Amendment's text 
prohibits only compelled testimony. Thus, it is hard to see how it 
could possible require the exclusion of voluntary custodial 
confessions, which are the only kind that Sec. 3501 makes admissible. 
While the Supreme Court did hold in Miranda that a confession obtained 
from a suspect in police custody without certain procedural safeguards 
could not be admitted whether or not it was voluntary, the Congress is 
free to modify that rule by 2 statute unless the rule is 
constitutionally required.\2\ On the basis of the cases cited in the 
briefs I referred to above, it seems fairly clear that the Court does 
not view Miranda's exclusionary rule as a constitutional requirement. 
To be sure, the Supreme Court has never ruled directly on the statute's 
constitutionality, but the provision seems perfectly consistent with 
doctrinal developments since Miranda, and those developments seem 
difficult if not impossible to square with any theory under which the 
provision could found unconstitutional. Finally, two courts of appeals 
have upheld Sec. 3501's constitutionality and none has struck it down. 
In fact, my personal view is that since Miranda's exclusionary rule was 
not a constitutional directive, it is not only reasonable but legally 
correct to say, as the Court of Appeals ruled in Dickerson, that 
Sec. 3501 is a legitimate exercise of the legislative authority to deal 
with questions of admissibility of evidence. I should add that although 
I have given this question fairly careful thought, I may be wrong and 
the Supreme Court may disagree. I do, however, find it hard to believe 
that a position that two courts of appeals have backed and that I 
believe is correct, could not only be wrong, but could be so 
unreasonable that the Department of Justice would not have an 
obligation to advance it in defense of an enactment of Congress.
---------------------------------------------------------------------------
    \2\ See, for example, Act of September 2, 1957, 71 Stat. 595 
(codified at 18 U.S.C. Sec. 3500) (``Jencks'' Act) (making non-
discoverable certain material that would have been discoverable by the 
defense under the rule set out in Jencks v. United States, 353 U.S. 657 
(1957) (upheld as a proper exercise of Congressional power in Palermo 
v. United States, 360 U.S. 343 (1959)).
    It is perhaps worth noting that the Palermo court described the 
Jencks Act as ``governing the production of statements to government 
agents by government witnesses,'' 360 U.S. at 345, and as ``the rule of 
law governing the production of the statement at issue in this case,'' 
360 U.S. at 351. This language is strikingly similar to that used in 
Justice O'Connor's majority opinion in Davis v. United States, 512 U.S. 
451 (1994), where she noted the government's failure in arguing for the 
admission of incriminating statements made by a defendant in police 
custody ``to rely * * * on 18 U.S.C. Sec. 3501, the statute governing 
the admissibility of confessions in federal prosecutions,' United 
States v. Alvarez-Sanchez 511 U.S. 350, 351, 128 L.Ed. 2d 319, 114 S. 
Ct. 1599 (1994).'' Davis, 512 U.S. at 457 n*.
---------------------------------------------------------------------------
            Sincerely,
                                   Dick Thornburgh.
                               __________
                                                     July 22, 1999.
The Hon. Strom Thurmond,
Chairman, Subcommittee on Criminal Justice Oversight,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: This letter responds to your questions regarding 
the Department of Justice's views and positions on 18 U.S.C. Sec. 3501 
during my tenure as Attorney General in the Administration of President 
George W. Bush. This letter is based on my own recollection as well as 
consultation with people who served in the Department of Justice during 
the Bush Administration.
    It was the position of the Department of Justice during my tenure 
as Attorney General that Miranda v. Arizona's procedural requirements 
and its per se exclusionary rule were not constitutionally mandated. We 
made arguments to this effect in the United States Supreme Court, see, 
e.g.; Brief for the United States as Amicus Curiae in Withrow v. 
Williams, No. 91-1030; Brief for the United States as Amicus Curiae in 
Parke v. Raley, No. 91-719. In some cases, the Department of Justice 
also participated as amicus curiae in support of the State in the lower 
federal courts. Our legal position in this regard was based in large 
part upon the report issued by the Office of Legal policy in the 
previous Administration and upon subsequent Supreme Court decisions 
which made it clear that the Miranda regime was not required by the 
Fifth Amendment.
    We also took the position that 18 U.S.C. Sec. 3501 was 
constitutional as an exercise of Congress' authority to control the 
admission of evidence before federal courts. As the senior officer of 
the prosecuting arm of the Executive Branch, I believed that the 
Department of Justice should be prepared to use all of the legal tools 
at its disposal, within constitutional bounds, to seek the conviction 
of the guilty and exoneration of the innocent. This certainly included 
making a criminal defendant's voluntary statements regarding the crime 
available to the finder of fact. Accordingly, during my tenure, the 
United States Attorneys' Offices were authorized and encouraged to 
raise 18 U.S.C. Sec. 3501 as an argument for the admission of reliable 
evidence of guilt that would otherwise be kept from juries by the 
Miranda doctrine. As far as I am aware, no case during my tenure as 
Attorney General was a United States Attorneys' Office prohibited from 
relying upon section 3501 in any forum. .
    In 1991, I instructed a Special Assistant to the Attorney General 
to undertake the task of locating a test case for the constitutionality 
of 18 U.S.C. Sec. 3501. Contacts were made with United States 
Attorneys' Offices to find an appropriate case where the issue could be 
raised and preserved for appellate review. Although no proper vehicle 
for pursuing the issue was generated prior to the end of the 
Administration, the effort demonstrates the Bush Administrations 
commitment to use and defend section 3501 and seek a definitive 
adjudication as to its constitutionality.
    To summarize, during my tenure as Attorney General of the United 
States:

          (1) We adhered to the position of prior Administrations that 
        Miranda's procedural requirements and exclusionary rule were 
        not constitutionally mandated;

          (2) We took the position that section 3501 was a 
        constitutional exercise of Congress' authority over the 
        admissibility of evidence in federal court;

          (3) We authorized the United States Attorneys' Offices to use 
        section 3501 to promote the admissibility of reliable evidence 
        of guilt in federal criminal prosecutions; and

          (4) We stood ready to defend the constitutionality of the 
        statute in the Courts of Appeals and the United States Supreme 
        Court.

    I hope this letter is of assistance to you and that it helps to 
clarify the historical record as to the position of the Department of 
Justice regarding the constitutionality of 18 U.S.C. Sec. 3501.
            Sincerely,
                                   William P. Barr.

    Senator Thurmond. Further, I wish to place in the record a 
copy of the following letters: a September 10, 1997, letter 
from Attorney General Reno reporting to the Senate that the 
Department of Justice will not defend the constitutionality of 
section 3501 in the lower Federal courts; a November 6, 1997, 
memorandum from Acting Assistant Attorney General John Keeney 
to all U.S. attorneys prohibiting them from invoking section 
3501 without permission; a March 4, 1999, letter that I sent, 
along with Senator Hatch and others to Attorney General Reno on 
this issue, the April 15, 1999, response to that request, and 
also a letter to James Robinson, Assistant Attorney General of 
the Criminal Division dated May 6, 1999 inviting him to this 
hearing.
    [Senator Thurmond submitted the following materials:]

                            Office of the Attorney General,
                                Washington, DC, September 10, 1997.
The Hon. Albert Gore, Jr.,
President of the Senate, Washington, DC.
    Dear Mr. President: I am writing to notify you that the Department 
of Justice has taken the position that the federal courts of appeals 
and district courts may not apply 18 U.S.C. Sec. 3501 to admit a 
voluntary confession in a case in which Miranda v. Arizona, 384 U.S. 
436 (1966), would require its exclusion, and that the Department of 
Justice cannot argue that they do so.
    In United States v. Tony Leong, No. 96-4876, the government 
appealed the suppression of an unwarned statement elicited by the 
police during a traffic stop. The government argued that the defendant 
was not in custody when he made the statement, and therefore he was not 
entitled to Miranda warnings. The Fourth Circuit affirmed the 
suppression order, finding, contrary to the government's argument, that 
the defendant was in custody when he made the incriminating statement 
and therefore that suppression of his unwarned statement was required 
by the Supreme Court's decision in Miranda. Shortly thereafter, the 
court directed the parties to address the applicability of Section 3501 
to the government's appeal. In response to that order, the Department 
filed a brief advising the Fourth Circuit that it could not apply 
Section, 3501 to admit a confession taken in violation of the Supreme 
Court's decision in Miranda unless and until the Supreme Court 
overrules or modifies that decision. A copy of the Department's brief 
in Leong is attached.
    Because the Department has not determined that it will decline to 
defend the constitutionality of Section 3501 in the Supreme Court, 
should the issue arise there, it is unclear whether the reporting 
requirements of Pub. L. No. 96-132, 21(a)(2), 93 Stat. 1049-50 (1979), 
are triggered by our filing in Leong. Nevertheless, should the 
Department's determination that it will ``refrain from defending'' 
Section 3501 in the lower courts trigger the statute's reporting 
requirements, this letter will serve as that report.
            Sincerely,
                                        Janet Reno.

            Enclosure.

    [Editor's note: The above mentioned enclosure is located in the 
subcommittee's file.]
                               __________
                        U.S. Department of Justice,
                                         Criminal Division,
                                  Washington, DC, November 6, 1999.

from: John C. Keeney, Acting Assistant Attorney General.

subject: 18 U.S.C. Sec. 3501.

 Memorandum for All United States Attorneys and All Criminal Division 
                             Section Chiefs

    Section 3501 of Title 18, United States Code, provides that ``in 
any criminal prosecution brought by the United States,'' a confession 
``shall be admissible in evidence if it is voluntarily given.'' The 
statute requires trial judges to make a threshold determination of 
voluntariness outside the presence of the jury, and provides that 
voluntariness shall be assessed based on the totality of the 
circumstances--including whether or not the ``defendant was advised or 
knew that he was not required to make any statement and that any such 
statement could be used against him,'' and whether the defendant had 
been advised of his right to counsel. Section 3501(b) states, however, 
that the ``presence or absence'' of any particular factor--including 
whether the defendant received the warnings required by Miranda v. 
Arizona, 304 U.S. 436 (1966)--``need not be conclusive on the issue of 
voluntariness of the confession.''
    Section 3501 was intended by Congress to secure the admissibility, 
in federal courts, of voluntary statements that would otherwise be 
suppressed under Miranda. Since its enactment in 1968, the statute has 
rarely been invoked by federal prosecutors, however, in part due to 
questions as to its constitutionality that were recognized even by 
Congress when it passed the law. See, e.g., S. Rep. No. 1097, 90th 
Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin. News 
2112, 2137-2138. (``No one can predict with any assurance what the 
Supreme Court might at some future date decide if these provisions are 
enacted * * *. The committee feels that by the time the issue of 
constitutionality would reach the Supreme Court, the probability * * * 
is that this legislation would be upheld.'')
    Recently, in United States v. Leong, No. 96-4876, the Fourth 
Circuit directed the parties to address the applicability of Section 
3501 in a case in which a defendant's admission was suppressed for 
failure to give Miranda warnings. The Department thoroughly reviewed 
the legal issues and came to the conclusion that unless the Supreme 
Court were to modify or overrule the Miranda and the cases that have 
continued to apply it, the lower courts are not free to rely on Section 
3501 to admit statements that would be excluded by Miranda, and the 
United States is not free to urge lower courts to do so. The Fourth 
Circuit ultimately declined to address the applicability of Section 
3501 because the issue was not raised in the district court.
    The Department has not yet decided whether it would ask the Supreme 
Court in an appropriate case to overrule or modify Miranda. While the 
Department considers this issue, federal prosecutors should not rely on 
the voluntariness provision of Section 3501 to urge the admission of a 
statement taken in violation of Miranda without first consulting with 
the Criminal Division.
    Copies of the brief in the Leong case are available from the 
Appellate Section of the Criminal Division. If you have any questions 
about this issue, please contact Patty Merkamp Stemmler, Chief of the 
Appellate Section.
                               __________
                                       U.S. Senate,
                                Committee on the Judiciary,
                                     Washington, DC, March 4, 1999.
Hon. Janet Reno,
Attorney General,
Department of Justice, Washington, DC.
    Dear Madam Attorney General: As members of the Senate Judiciary 
Committee, we bring to your attention the case of United States v. 
Dickerson, No. 97-4750, (4th Cir. 1999). In Dickerson, the court 
thoroughly addressed and upheld the constitutionality of 18 U.S.C. 
Sec. 3501. As you know, this statute provides that in a federal 
prosecution, ``a confession * * * shall be admissible in evidence if it 
is voluntarily given.'' In a September 10, 1997, letter, you notified 
Congress that the Department of Justice would neither urge the 
application nor defend the constitutionality of 18 U.S.C. Sec. 3501 in 
the lower federal courts. Given that United States v. Dickerson rejects 
your legal position and upholds the constitutionality of the statute, 
we would like a commitment from you faithfully to execute this federal 
law.
    The facts in Dickerson are disturbing: On January 27, 1997, Charles 
Dickerson confessed to robbing a series of banks in Maryland and 
Virginia. After being indicted for armed robbery, Dickerson moved to 
suppress his confession. The U.S. District Court specifically found 
that Dickerson's confession was voluntary under the Fifth Amendment, 
but it nevertheless suppressed the confession because of a technical 
violation of the Miranda warnings. In ruling on the admissibility of 
Dickerson's confession, however, the district court failed to consider 
18 U.S.C. Sec. 3501.
    Despite the fact that Dickerson voluntarily confessed to a series 
of armed bank robberies, the Department of Justice prohibited the U.S. 
Attorney's office from arguing 18 U.S.C. Sec. 3501 in its appeal of the 
suppression order. Unfortunately, the Department's refusal to apply 
this law is not an isolated event. As the court in Dickerson noted, 
``over the last several years, the Department of Justice has not only 
failed to invoke 3501, it has affirmatively impeded its enforcement.'' 
In numerous cases, the Clinton Administration has adamantly refused to 
utilize this statute to admit voluntary confessions into evidence. See 
Davis v. United States, 512 U.S. 452 (1994); Cheely v. United States, 
21 F.3d 914 (9th Cir. 1994); United States v. Sullivan, 138 F.3d 126d 
(4th Cir. 1998); United States v. Leong, No. 96-4876 (4th Cir. 1997); 
United States v. Rivas-Lopez, 988 F. Supp. 1424, 1430-36 (D. Utah 
1997).
    As the Dickerson court noted, ``[w]ithout his confession it is 
possible, if not probable, that [Dickerson] will be acquitted. Despite 
that fact, the Department of Justice, elevating politics over law, 
prohibited the U.S. Attorney's office from arguing that Dickerson's 
confession is admissible under the mandate of 3501.'' Needless to say, 
we find this criticism of the Department of Justice from a federal 
court of appeals deeply troubling.
    Many in Congress have long believed that the current Justice 
Department's position on the constitutionality of 18 U.S.C. Sec. 3501 
is suspect and would be so proven in court. The Dickerson court, after 
an exhaustive examination, rejected the Department's position and ruled 
that 18 U.S.C. Sec. 3501 is ``clearly'' constitutional. The court 
stated: ``We have little difficulty concluding, therefore, that 3501, 
enacted at the invitation of the Supreme Court and pursuant to 
Congress's unquestioned power to establish the rules of procedure and 
evidence in the federal courts, is constitutional.'' The other courts 
that have directly addressed Sec. 3501 have also rejected your 
conclusion and upheld the constitutionality of the statute. See United 
States v. Crocker, 510 F.2d 1129, 1137 (10th Cir. 1975); United States 
v. Rivas-Lopez, 988 F. Supp. 1424, 1430-36 (D. Utah 1997). In addition, 
every court to which you have presented the other portion of your 
argument--that there is a bar on the lower federal courts applying this 
Act of Congress in cases before them--has also rejected that view. See 
United States v. Dickerson, No. 97-4750 (4th Cir. 1999); United States 
v. Leong, No. 96-4876 (4th Cir. 1997); United States v. Rivas-Lopez, 
988 F. Supp. 1424 (D. Utah 1997).
    We want to emphasize that 18 U.S.C. Sec. 3501 does not replace or 
abolish the Miranda warnings. On the contrary, the statute explicitly 
lists Miranda warnings as factors a district court should consider when 
determining whether a confession was voluntarily given. As the 
Dickerson court recognized, providing the Miranda warnings remains the 
surest way to ensure that a statement is voluntary. As such, we expect 
federal law enforcement officials to continue to give Miranda warnings. 
In our view, the promise of 18 U.S.C. Sec. 3501 is that it retains 
every incentive to give Miranda warnings but does not require the rigid 
and unnecessary exclusion of a voluntary statement.
    In his 1997 confirmation hearing, Solicitor General Seth Waxman 
pledged ``to defend the constitutionality of Acts of Congress whenever 
reasonable arguments are available for that purpose * * * '' The 
Dickerson decision demonstrates beyond doubt that there are 
``reasonable arguments'' to defend 18 U.S.C. Sec. 3501. In fact, these 
arguments are so reasonable that they have prevailed in every court 
that has directly addressed their merits.
    Given that United States v. Dickerson upholds the constitutionality 
of this statute, we believe that the time has come for the Department 
of Justice faithfully to execute this federal law. This commitment 
entails seeking the admission in federal court of any voluntary 
statement that is admissible under Sec. 3501 even if it is in technical 
violation of Miranda. In addition, we also seek and expect a commitment 
from you to defend the constitutionality of this Act of Congress before 
both the lower federal courts and the Supreme Court.
    Accordingly, we look forward to hearing from you by March 15 
concerning 1) what position the Department of Justice will take in 
Dickerson should the Fourth Circuit call for a reply to the defendant's 
petition for rehearing; 2) what position the Department of Justice will 
take in Dickerson should the Fourth Circuit grant rehearing; 3) what 
position the Department of Justice will take in Dickerson should the 
defendant seek certiorari; 4) whether the Department of Justice will 
now take the necessary steps to ensure that its attorneys invoke 
Sec. 3501 in cases where it is needed to ensure the admissibility of 
voluntary statements that may otherwise be found inadmissible.
            Sincerely,
                                   (Signed)  Orrin Hatch,

                                   (Signed)  Strom Thurmond,

                                   (Signed)  Spencer Abraham.
                               __________
                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                    Washington, DC, April 15, 1999.
Hon. Strom Thurmond, Chairman,
Subcommittee on Criminal Justice Oversight,
Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: I am responding to your March 4, 1999, letter 
also signed by several other Members of the Judiciary Committee 
regarding the case of United States v. Dickerson, No. 97-4750 (4th Cir. 
1999). As noted in your letter, in Dickerson, the panel majority held 
that a federal district court may admit into evidence, pursuant to 18 
U.S.C. Sec. 3501(a), a voluntary confession taken in violation of the 
Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436 (1966). In 
light of the Dickerson decision, you have asked what position the 
Department of Justice will take in that case should the Fourth Circuit 
call for a reply to the defendant's petition for rehearing. You also 
ask what position the Department will take should the Fourth Circuit 
grant rehearing. An identical response is being sent to the other 
signatories of your letter.
    The Fourth Circuit requested our views on whether it should rehear 
Dickerson. Pursuant to that request, on March 8, 1999, the Department 
filed a brief in support of partial rehearing en banc. In that brief, a 
copy of which is enclosed, we noted that the constitutionality of 
Section 3501(a) is a question of exceptional importance deserving the 
attention of the en banc court. We reiterated our position, set forth 2 
years ago in our brief in United States v. Leong, No. 96-4876, that the 
Miranda decision and its progeny represent an exercise of the Supreme 
Court's authority to implement and effectuate constitutional rights, 
and therefore those decisions are binding on Congress. Critical to our 
conclusion that Congress was without authority to overrule Miranda 
through the enactment of Section 3501(a) is the fact that the Supreme 
Court has consistently applied Miranda to the States and on federal 
habeas review of state convictions, which it could not do unless 
Miranda had constitutional underpinnings. Moreover, we explained in our 
submission to the Fourth Circuit in Dickerson that, as the Supreme 
Court recently reiterated in Agostini v. Felton, 117 S. Ct. 1997 
(1997), the lower federal courts are bound by Supreme Court holdings 
unless and until the Supreme Court itself overrules them. For that 
reason, we took the position that the panel's determination to give 
effect to Section 3501 rather than the Supreme Court's decision in 
Miranda was error. On March 30, 1999, the Fourth Circuit denied 
Dickerson's petition for rehearing en banc by a vote of 8 to 5.
    You also ask what position the Department will take in Dickerson 
should the defendant seek certiorari. We cannot answer that question at 
this time, as our response to the petition will depend in part on the 
issues raised in the petition. Further, we have not yet determined what 
our position will be if the Supreme Court grants certiorari in 
Dickerson or in any other case to determine the continued vitality of 
Miranda and hence the constitutionality of Section 3501.
    Finally, you ask whether the Department will now take steps 
necessary to ensure that its attorneys invoke Section 3501 in cases 
where it is needed to ensure the admissibility of voluntary statements 
that may otherwise be found inadmissible. For the reasons stated in our 
brief in Dickerson, we do not believe that prosecutors are free to urge 
the lower courts to apply Section 3501. We acknowledge, however, that 
in the Fourth Circuit, where the panel decision in Dickerson is 
controlling authority, the district courts are free to apply the 
statute. Accordingly, we have instructed federal prosecutors in that 
circuit to bring Section 3501 and the Dickerson decision to the 
district court's attention in any case in which a defendant is seeking 
suppression of a confession.
            Sincerely,
                                   (Signed)  Dennis Burke

                                   (Typed)  Dennis K. Burke,
                                 Acting Assistant Attorney General.
Enclosure.

[Editor's note: The enclosure mentioned in this letter has been 
retained in Subcommittee files.]
                               __________
                                       U.S. Senate,
                                Committee on the Judiciary,
                                       Washington, DC, May 6, 1999.
The Hon. James K. Robinson,
Assistant Attorney General, Criminal Division, Washington, DC.
    Dear Mr. Robinson: On Thursday, May 13, 1999, the Subcommittee on 
Criminal Justice Oversight of the Senate Judiciary Committee will hold 
a hearing concerning the enforcement of 18 U.S.C. 3501, which is the 
statute the Congress passed to govern the admissibility of confessions 
in Federal court in response to the Supreme Court's decision in Miranda 
v. Arizona, 384 U.S. 436 (1966). This letter is to request that you 
testify before this subcommittee on behalf of the Department of 
Justice. The hearing will be held at 2:00 p.m. in Room 226 of the 
Senate Dirksen Office Building.
    We would like for you as Chief of the Criminal Division to discuss 
the Criminal Division's approach toward the statute generally, 
including both currently and historically, in the context of Miranda. 
For example, we would like to know whether and how the Department plans 
to approach 18 U.S.C. 3501 in the Fourth Circuit, given that the Fourth 
Circuit ruled the statute constitutional in United States v. Dickerson, 
166 F.3d 667 (4th Cir. 1999).
    In discussions with my staff, the Department has expressed 
reservations about testifying because the Supreme Court may consider 
the Dickerson case, which would necessitate the Solicitor General 
deciding whether and how to defend the Constitutionality of this law. 
It is true that we are interested in knowing as soon as possible 
whether the Department will defend the Constitutionality of the statute 
because I believe the Senate Legal Counsel should attempt to defend the 
statute if the Department chooses not to. However, the subcommittee is 
not attempting to interfere in the Department's handling of any 
particular pending case, and you are free to decline to answer any 
questions that you do not feel are appropriate. The hearing will 
consider all aspects of the statute and not solely one case in which 
the statute has been addressed. I believe that our evaluation of this 
issue would be more useful and complete with your participation.
    This is one of the first issues related to the Criminal Division on 
which our subcommittee is conducting its oversight authority, and we 
would appreciate your cooperation. If you cannot attend personally, 
please send someone in your place who could discuss this issue. If you 
have any questions, please contact me or Garry Malphrus of my 
subcommittee staff at 224-4135.
    Thank you for your consideration.
            Sincerely,
                                            Strom Thurmond,
              Chairman, Subcommittee on Criminal Justice Oversight.

    Senator Thurmond. Finally, I would like to submit a copy of 
18 U.S.C. 3501 and a copy of the chart I have behind me listing 
cases that have criticized the Department of Justice for its 
refusal to enforce the law on voluntary confessions.
    [18 U.S.C. 3501 and the chart referred to follow:]
    [GRAPHIC] [TIFF OMITTED] T0782.010
    
    [GRAPHIC] [TIFF OMITTED] T0782.011
    
    Senator Thurmond. We will leave the hearing record open for 
1 week for additional materials and for follow-up questions.
    I want to thank all of you gentlemen for attending this 
hearing, and thank you for your testimony and your devotion to 
your country by coming here and serving.
    I think we are now finished with the hearing unless 
somebody wants to raise some point. We are now adjourned.
    [Whereupon, at 3:30 p.m., the subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


                         Questions and Answers

                              ----------                              


    Response of Stephen J. Markman to Question From Senator Thurmond

    Question 1. Judge Markman, do you have any doubt that, while you 
were involved in the Reagan and Bush Administrations, if a case similar 
to Dickerson had arisen out of a circuit court, the Department would 
have defended the statute before the Supreme Court?
    Answer 1. Concerning the Reagan Administration's Department of 
Justice, I have no such doubt, not only because of the general 
institutional commitment to defend the constitutionality of 
congressional enactments, but also because of the internal decision 
made by 1987 to affirmatively identify a federal criminal case in which 
the constitutionality of section 3501 could be asserted. Concerning the 
Bush Administration's Department of Justice, I also have no such doubt 
both for the former reason and because no objections were made to the 
efforts of individual U.S. Attorney's offices to assert this argument.
                               __________

   Responses of Richard M. Romley to Questions From Senator Thurmond

    Question 1. In your opinion, does the example you talked about in 
the Rodriguez case reflect a lack of empirical support for the Miranda 
court's assumption that confessions derived from custodial 
interrogation are inherently coercive and involuntary?

    Question 2. Do you believe the Rodriguez case is an isolated 
incident, or are there numerous cases where a criminal goes free 
because of a minor, technical failure to follow Miranda safeguards?
                                 ______
                                 
            Office of the Maricopa County Attorney,
                        Richard M. Romley, County Attorney,
                                   Phoenix, AZ, September 10, 1999.
Senator Strom Thurmond,
Subcommittee on Criminal Justice Oversight,
U.S. Senate, Washington, DC.
    Dear Senator Thurmond: I am pleased to provide the following 
responses to the follow-up questions recently presented to me. I was 
honored to have had an opportunity to appear before the Subcommittee on 
Criminal Justice Oversight on May 13, 1999, and to discuss the refusal 
of the Justice Department to enforce the law on voluntary confessions.
    With regard to your question concerning the ``lack of empirical 
support for the Miranda court's assumption that confessions derived 
from custodial interrogation are inherently coercive and involuntary,'' 
I am not able to venture an opinion absent a statistical analysis. 
However, I am of the opinion that while in-custodial interrogations may 
be at least to some degree inherently coercive, the mere fact that a 
confession was obtained during an in-custodial interrogation should not 
alone determine of the issue of voluntariness. An in-custodial 
interrogation should be but one factor in determining voluntariness and 
the subsequent admissibility of a confession. The decision in the 
Rodriguez case illustrates that many factors should be considered when 
determining the voluntariness and admissibility of a confession. 
Obviously, among the factors entering into a decision by a person in-
custody to confess include feelings of guilt, the desire to explain 
one's conduct, and other self-generated motivations. The in-custodial 
nature of the interrogation itself is not and should not be depositive 
of this issue.
    As to your second question; the Rodriguez case is obviously not an 
isolated instance where a confession has been ruled inadmissible merely 
because of the lack of Miranda warnings. In Arizona, we have a recent 
example in the case of State of Arizona v. Elizabeth Shannon/Whittle, 
CR 1998-013880. In this particular case, Mrs. Whittle, who was in the 
hospital at the time of her interrogation was not given Miranda 
warnings. In this instance, the police did not consider her as being 
in-custody, however the court disagreeded. Her statement was ruled 
inadmissible when the court held that she had undergone an in-custodial 
interrogation without the benefit of having received Miranda warnings. 
The court indicated in its original decision that in all other respects 
Ms. Whittle's confession was voluntary and, but for the fact that she 
had not been afforded Miranda warnings her statement would have been 
admissible. There was no evidence of coercion by the police to induce 
Ms. Whittle to confess. This is, but another example of a situation 
where technicalities outweighed reason.
    I trust that the above responses to your questions will be helpful 
to the Senate's determination of these issues. If I can be of further 
assistance, please do not hesitate to call upon me.
            Sincerely,
                                         Richard M. Romley,
                                          Maricopa County Attorney.
                               __________

  Responses of Gilbert G. Gallegos to Questions From Senator Thurmond

    Question 1. Mr. Gallegos, in the Dickerson case, an alleged serial 
bank robber confessed his crimes to the authorities without coercion or 
improper influence. The only problem was that the Miranda warnings were 
not read to him before hand. Common sense dictates that this man's 
confession should be used, and he should not go free. Please discuss 
the frustrations police officers on the street face with technicalities 
like in Dickerson.
    Answer 1. With all the legal gymnastics available to defense 
lawyers, the caprice of judges and overburdened prosecutors, it is 
certain that many persons who ought to be locked up are walking the 
streets today, released on ``technicalities.'' This is frustrating to 
police officers and the public alike. Perhaps one of the most 
egregiously frustrating scenarios is a criminal who freely confesses 
his or her crime to police officers, which is later thrown out by a 
judge, allowing a confessed criminal to go free.
    Many blame law enforcement officers, not prosecutors or judges, 
when criminals go free on technicalities, suggesting that if we 
followed the rules and conducted proper investigations, only the 
innocent would go free and the guilty would always wind up in jail. If 
this were the case. It is important to realize that our legal system 
goes to great lengths to protect the rights of both the innocent and 
the guilty. Any investigation must proceed without violating these 
rights and every interrogation must be lawful and voluntary. Coerced 
confessions have never been admissible in court. Police officers must 
protect the rights of those they investigate, but when the rules are 
unclear or inconsistently applied, the guilty benefit and public safety 
suffers.
    Police officers are expected to be legal experts on exclusionary 
rule law and be able to quote verbatim all case law on the Fourth, 
Fifth, and Fourteenth Amendments. Police officers make life and death 
decisions every day; they are trained to prevent crime and catch 
criminals. They know the law and apply it every day as they walk their 
beats and patrols. They are also called upon to exercise their judgment 
and common sense in uncommon situations. Unfortunately, we too often 
find that common sense is not always admissible in court.
    A big step toward common sense was taken when Congress enacted 
Section 3501, Title 18, U.S.C. That statute encourages police agencies 
to give the now standard ``Miranda'' warnings. But at the same time, it 
said that a confession could be used in court so long as it was 
``voluntary.'' This approach properly recognizes the vital importance 
of confessions to law enforcement. No one suggests that police officers 
should be able to coerce or threaten a suspect to obtain a confession. 
That is not what the Miranda decision is about. Even before Miranda, 
any confession obtained by threats--an ``involuntary'' confession--was 
excluded. Miranda did not add anything to those situations, and Section 
3501 preserves in full force the rule that involuntary confessions 
cannot be admitted. What Miranda created was a whole host of new 
procedural requirements that applied, not to situations of threats, but 
to ordinary, everyday police questioning all over the country.
    Here it is important to understand what rules the decision actually 
imposed on police. The general public may think that it knows all about 
Miranda from watching television programs and seeing the four warnings 
read from a card, but for police officers on the streets, much more is 
involved.
    To begin with, police officers have to decide when it is time to 
apply the Miranda procedures. The courts have told officers that 
warnings are required only when a suspect is in ``custody.'' Making 
this determination is very complicated, as shown by the fact that 
respected judges, with ample time to consider the issues, frequently 
cannot agree among themselves when ``interrogation'' of a suspect 
begins. Here again, respected judges have often disagreed on what 
constitutes interrogation, but police officers are expected to know on 
the spot, often in tense and dangerous situations.
    If a suspect in ``custody'' is ``interrogated,'' police officers 
must not only read Miranda warnings but then obtain a ``waiver'' from 
the suspect of his rights. Even with all the resources of time and 
research their court allows, no two judges will completely agree on 
what constitutes a valid waiver of rights, and yet, police officers 
must decide almost instantaneously whether they have a valid waiver 
from a suspect. Then, once officers get a waiver, they must be 
constantly ready to know if a suspect has changed his mind and decided 
to assert his right to see a lawyer or to remain silent. If this change 
of mind has taken place, a police officer must still know if and when 
he can reapproach a suspect to see if the suspect has changed his mind 
yet again.
    Finally, on top of all this, police are expected to know that 
Miranda warnings are not always required, as the Supreme Court has 
specifically created exceptions for situations involving ``public 
safety'' or ``routine booking.'' Other courts have recognized 
exceptions for routine border questioning, general on-the-scene 
questioning, and official questioning at a meeting requested by a 
suspect. Police, too, must know about whether or not a suspect has been 
questioned by officers from another agency about another crime and 
another time, and if so, whether or not a suspect invoked his rights 
during that other questioning.
    Police officers all around the country spend a great deal of time 
attempting to learn all these rules and follow them faithfully. 
However, since judges disagree with exactly how to apply all these 
rules, it is not surprising to find that police officers, too, will 
occasionally make mistakes and deviate from some of the Miranda 
requirements.
    There will also be situations when police officers and criminal 
suspects disagree about whether all the rules were followed or not. 
Dickerson provides a very good illustration of this. Charles Dickerson, 
the confessed bank robber, said that he received his warnings only 
after he had given his confession.
    The officer involved testified to the contrary that they followed 
their normal procedures and read the warnings before questioning. 
Dickerson apparently had prior experience as a suspect in the criminal 
justice system and had probably even heard the Miranda rights before. 
In situations like this, it makes no sense to throw out a purely 
voluntary confession on technical arguments about exactly when the 
Miranda warnings were read, for all the reasons that the Fourth Circuit 
gave in its opinion.
    The issue before the Fourth Circuit in Dickerson was precisely the 
question of whether or not to let a confessed, dangerous criminal go 
free on a ``technicality.'' Fortunately, the Fourth Circuit refused to 
allow this to happen and instead applied a law Congress had passed in 
1968--Section 3501 of Title 18, U.S. Code. ``No longer will criminals 
who have voluntarily confessed their crimes be released on mere 
technicalities,'' the court wrote in upholding this law. To this 
holding, law enforcement officers all across the country say, ``It's 
about time.''

    Question 2. Mr. Gallegos, do you think that if Section 3501 is 
upheld, it will encourage police officers to ignore defendant's legal 
rights generally?
    Answer 2. Absolutely not. Our Constitution, and the Bill of Rights 
in particular, were enacted and ratified with the aim of protecting the 
individual from an abuse of power by government. In an arrest and 
interrogation situation, the law enforcement officers represent the 
government and no one ought to be deprived of their constitutional 
rights during that questioning. However, it is important to understand 
that the Fifth Amendment's prohibition of any person being 
``compelled'' to be a witness against himself was designed to protect 
against coercion by government agents, not technical mistakes that 
might occur in administering complicated court rules. This was exactly 
what the Fourth Circuit recognized in its Dickerson opinion in refusing 
to allow, as the court put it, ``mere technicalities'' to prevent a 
completely voluntary confession from being introduced before the jury. 
Voluntary confessions made without police coercion should be evaluated 
by juries, not concealed by cleaver defense attorneys.
    Miranda v. Arizona established various procedures to safeguard the 
Fifth Amendment rights of persons in custodial interrogations-
procedures which are unaffected by Section 3501, which actually 
encourages the proper use of the Miranda warnings. In its ruling, the 
Court thought that, without 3 certain safeguards, no statement obtained 
by law enforcement authorities could be considered ``voluntary'' and 
thus would not be admissible in court. Ever since, the words, ``You 
have the right to remain silent * * * `` have been part of every law 
enforcement officer's lexicon.
    However, the Supreme Court has made it clear over the past 25 years 
that procedural safeguards imposed by the Miranda decision were not 
rights protected by the Constitution, but rather measures designed to 
help ensure that the right against self-incrimination was protected, 
that confessions or other information were lawfully and voluntarily 
obtained and therefore admissible in a court of law. As the Court 
explained a few years later in Michigan v. Tucker (1974), the 
safeguards were not intended to be a ``constitutional straightjacket'' 
but rather to provide ``practical reinforcement'' for the exercise of 
Fifth Amendment rights.
    In Tucker, a rape suspect gave exculpatory responses without being 
fully Mirandized. (He was questioned before the Court had decided 
Miranda.)
    The suspect's statements led them to a witness who provided 
damaging testimony, testimony which the defense sought to have excluded 
because the witness was located through an interrogation in which the 
suspect had not been fully advised of his rights. The Court, however, 
allowed the evidence to be used, explaining that ``Certainly no one 
could contend that the interrogation faced by [the suspect] bore any 
resemblance to the historical practices at which the right against 
compulsory self-incrimination was aimed.''
    Similar to the decision in Tucker, the Supreme Court ruled in New 
York v. Quarles (1985) that there is a ``public safety'' exception to 
the requirement that Miranda warnings be given.'' Police officers 
approached by a victim raped at gunpoint were advised that her attacker 
had just entered a supermarket. After arresting the suspect and 
discovering an empty holster on his person, the officer asked, ``Where 
is the gun?'' The suspect revealed where he had hidden the weapon, an 
important piece of evidence, which the suspect's lawyers successfully 
excluded in State Court because the suspect was not Mirandized between 
his arrest and the ``interrogation.''
    The Supreme Court, however, overruled the lower court's decision 
stating that police officers ought not be ``in the untenable position 
of having to consider, often in a matter of seconds, whether or not it 
best serves society for them to ask the necessary questions without the 
Miranda warnings and render whatever probative evidence they uncover 
inadmissible, or for them to give the warnings in order to preserve the 
admissibility of evidence they might uncover but possible damage or 
destroy their ability to obtain that and neutralize the volatile 
situation confronting them.'' The Court recognized the ``kaleidoscopic 
situation * * * confronting the officers,'' not the ``spontaneity 
rather than adherence to a police manual is necessarily the order of 
the day,'' and worried that ``had Miranda warnings deterred [the 
suspect] from responding to [the officer's] questions, the cost would 
have been something more than merely the failure to obtain evidence 
useful in convicting Quarles. Officer Kraft needed an answer to his 
question not simply to make his case against Quarles, but to insure 
that further danger to the public did not result from the concealment 
of the gun in a public area.'' Accordingly, the Court allowed the 
statement made by Quarles to be used against him.
    The logic of the Supreme Court's ``public safety'' decision in 
Quarles is exactly the logic of Section 3501. This statute was drafted 
in 1968 after the Senate Judiciary Committee held extensive hearings on 
the effects of the Supreme Court's rulings in Miranda and some other 
cases. The committee was deeply concerned about Miranda's effects on 
public safety, concluding that ``[tlhe rigid, mechanical exclusion of 
an otherwise voluntary and competent confession is a very high price to 
pay for a `constable's blunder'.''
    To reduce that high price, Congress enacted 18 U.S.C. 3501, which 
instructs federal judges to admit confessions ``voluntarily made.'' The 
statute also spelled out the factors a court must ``take into 
consideration'' in order to determine the ``voluntariness'' of a 
confession. The Senate report which accompanied the ``Omnibus Crime 
Control and Safe Street Act of 1968,'' explained the rationale for 
Section 3501 quite bluntly: ``[C]rime will not be effectively abated so 
long as criminals who have voluntarily confessed their crimes are 
released on mere technicalities * * * The Committee is convinced that 
the rigid and inflexible requirements of the majority opinion in the 
Miranda case are unreasonable, unrealistic and extremely harmful to law 
enforcement.''
    In considering the statute, it is important to understand that 
police officers will continue to give Miranda warnings if the 
principles of Section 3501 are applied around the country. The statute 
itself provided that the giving of Miranda warnings is a factor to be 
considered in determining whether a confession is voluntary. The Fourth 
Circuit specifically pointed to this fact in upholding the statute. It 
said, ``Lest there be any confusion on the matter, nothing in today's 
opinion provides those in law enforcement with an incentive to stop 
giving the now familiar Miranda warnings * * * [T]hose warnings are 
among the factors a district court should consider when determining 
whether a confession was voluntarily given.'' Police agencies will 
continue to do their best to follow Miranda when the statute is applied 
just as they do now. The only change will be that dangerous confessed 
criminals, like Mr. Dickerson, will not escape justice and be set free 
to commit their crimes again. The Fraternal Order of Police strongly 
endorses this return to common sense in our nation's courtrooms and 
hopes that the Congress and the Department of Justice will do whatever 
they can to insure that this is the ruling of the United States Supreme 
Court.
    I agree with those who have expressed concerns about Miranda's 
harmful effects on law enforcement. Sometimes we hear the claim that 
police have ``learned to live with Miranda'' as an argument against any 
change in the rules used in our courts. If what is meant by this is 
that police will do their very best to follow whatever rules the 
Supreme Court establishes, it is true police have ``learned to five 
with Miranda.'' Indeed, since 1966, police professionalism in this 
country has expanded tremendously in many ways.
    But if what is meant by this is that police ``live with and do not 
care about the harmful effects of these Court rules, nothing could be 
father from the truth. I can tell you from my experience as a law 
enforcement officer that too often these rules interfere with the 
ability of police officers to solve violent crimes and take dangerous 
criminals off the streets. The main culprit is not the Miranda 
warnings, which suspects have often heard time and again. The barrier 
to effective police questioning comes from all of the other technical 
requirements which in far too many cases make it impossible for police 
officers to ask questions of suspects and too rigid exclusionary rules 
that prevent the use of any information obtained if there is the 
slightest hint of noncompliance.
    Many crimes can only be solved and prosecuted if law enforcement 
officers have a chance to interview criminals and have their 
confessions introduced in court. Unfortunately, the Miranda procedures 
and its accompanying exclusionary rule in many cases prevent the police 
from ever having this opportunity.
    It is no coincidence that immediately after the imposition of all 
these technical requirements by the Supreme Court's decision in 
Miranda, the criminal case ``clearance rate'' of the nation's police 
fell sharply to lower levels. At the time, police officers around the 
country pointed to the Miranda decision as one of the major factors in 
this drop, and time has proven them right.
    Time has also proven the wisdom of the action that Congress took in 
1968. Responding to the urgent request of law enforcement, Congress 
decided to restore common sense to our criminal justice system by 
passing Section 3501. This is a law that needs to be enforced so that 
entire ``voluntary'' confessions obtained by hardworking police 
officers are not suppressed from the jury.
    As a country, we should never have to ``learn to live with'' the 
devastating effects of crime. To the contrary, we should never stop 
striving to improve our efforts to apprehend and convict dangerous 
criminals through fair and constitutional means.
                               __________

   Response of Daniel C. Richman to a Question From Senator Thurmond

    Question 1. Professor Richman, it appears to me that the premise of 
Miranda is that a confession cannot be voluntary if the warnings are 
not strictly given. Of course, whether a confession is voluntary is 
actually a factual question based on all of the circumstances. In 
determining whether a confession is voluntary, why is it not better for 
a judge to make that decision on a case-by-case basis as Section 3501 
provides?

    Dear Senator Thurmond: I appreciate the opportunity your inquiry 
gives me to expand on my remarks at the May 13, 1999 hearing.

    Answer 1. As I understand it, your question suggests that, rather 
than have the inquiry into Voluntariness framed by Miranda and its 
progeny, it would be ``better'' simply to require the case-by-case 
totality of the circumstances inquiry established by Sec. 3501. Were 
one to judge ``better-ness'' in the abstract, without any consideration 
of systemic concerns, I would have to agree with your suggestion. In 
some far-away world of unlimited resources and unerring judges, every 
case would stand on its particular facts, and court proceedings would 
intensively inquire into whether each suspect ``voluntarily'' chose to 
incriminate himself. The resulting body of law would be richly 
textured, as judges explored the mysteries of the human will and the 
diverse ways in which individuals interact with police officers.
    In our own world, however, the regime established by Miranda and 
its progeny has significant advantages for the Government and the 
criminal justice system as a whole. By focusing attention on the extent 
to which the Government has complied with that regime, these cases have 
made what otherwise would be a difficult fact-sensitive determination 
quite manageable. When the Government can show that Miranda warnings 
were properly given, it not only satisfies an initial legal 
requirement. It also provides judges with evidence of good faith and 
adherence to the rule of law. The result in such cases is that what 
otherwise could be a open-ended inquiry into ``voluntariness'' becomes 
quite truncated, with the Government generally winning.
    Does logic of Miranda compel this litigation pattern Not really. 
Theoretically (as I think your question suggests), an 'inquiry into 
whether warnings were given would merely be the first step into a more 
general examination of the ``voluntariness'' with which a suspect 
allegedly waived his rights. As a practical matter, however, this 
generally does not happen. As the Supreme Court noted in Berkemer v. 
McCarty, 468 U.S. 433 n.20 (1984), ``cages in which a defendant can 
make a colorable argument that a self-incriminating statement was 
'compelled' despite the fact that the law enforcement authorities 
adhered to the dictates of Miranda are rare.'' And my own experiences 
as a federal prosecutor which, particularly when I had a supervisory 
role in the Appellate Unit, gave me some familiarity with hundreds of 
cases--lead me to make the same observation.
    The result of this judicial focus on the giving of Miranda warnings 
has not simply been to save judicial resources by truncating the 
inquiry at pre-trial hearings. It has also led to creation of narrowly 
confined body of caselaw that provides agents and police officers with 
a road map for ensuring that a confession with be admissible, and 
provides prosecutors with a reasonably reliable way of predicting the 
outcome of suppression hearings. Such predictability, of course, I 
facilitates early plea negotiations.
    One response to my argument here might be: ``Perhaps you have 
explained how the Government and judicial system are benefitted by 
Miranda's prophylactic regime. But why not have Sec. 3501 as a back-up, 
for the relatively small number of cases in which there has merely been 
a `technical' violation of Miranda, but where the totality of the 
circumstances indicates that a confession was voluntary?'' There is 
something to this argument. Indeed, as someone quite interested in 
sending guilty people to prison, I would agree with it, if I could only 
find a way for criminal justice system to speak out of two different 
sides of its mouth. If law enforcement agents and police officers could 
remain blissfully unaware of the arguments that prosecutors later used 
in court to justify the admission of confessions and of the judicial 
outcomes, we would have the best of both worlds: the virtues of a 
prophylactic regime and the ability to sift through the facts of the 
remaining cases for voluntary confessions.
    But this is another world that bears no resemblance to reality. 
Rules of admission inevitably affect police behavior, particularly when 
the message is as clear as ``Miranda warnings are merely optional.'' 
And the effect of implementing Sec. 3501 (were it constitutional) would 
thus be to dramatically expand the number of cases in which either no 
Miranda warnings or defective warnings were given, with all the 
systemic costs such cases entail. In theory, agencies and police 
departments could step into the breach by requiring Miranda warnings as 
a matter of internal regulation (as the FBI did before Miranda). But 
such internal disciplinary schemes have traditionally been of mixed 
effectiveness, and would be extremely hard for federal officials to 
implement in the local police departments, which have been producing an 
increasing number of federal cases.
    It is for these reasons (and for the others that I noted in my May 
13 testimony), that the Department of Justice's historical reluctance 
to invoke Sec. 3501 makes sense as a matter of law enforcement policy, 
not just as a matter of constitutional interpretation (as others have 
argued). The policy advantages of Miranda's regime may also explain why 
the States, which, according to Professor Cassell's analysis, would 
seem to be most hurt by Miranda, have not seemed particularly 
interested in passing legislation like Sec. 3501.
    Again, I thank you for your consideration.
            Respectfully,
                                 Daniel C. Richman.

     Responses of George Thomas to Questions From Senator Thurmond

    Question 1. In your oral testimony, you mentioned that you thought 
the Department should raise and defend section 3501. Please elaborate 
on the reasons for your position.
    Answer 1. Senator Thurmond, whether 18 U.S.C. Sec. 3501 is 
constitutional or not, its function is to tell federal judges that they 
must admit voluntary confessions. Section (a) provides that ``a 
confession * * * shall be admissible in evidence if it is voluntarily 
given.'' Like a rule of evidence, this provision makes admissible a 
category of evidence. In every other context of which I am aware, if a 
federal prosecutor seeks to admit evidence, the prosecutor has a duty 
to argue for its admissibility using every plausible argument. Given 
the mandatory language of Sec. 3501 (``shall be admissible''), it is a 
powerful argument on behalf of a prosecutor trying to admit a 
confession. To be sure, the prosecutor has discretion about whether to 
seek the admission of a confession, but once the decision is made to 
seek admission, I believe the prosecutor has a duty to argue for 
admission on the ground of compliance with Sec. 3501. Similarly, the 
Department of Justice has a duty to use every plausible argument to 
defend a lower court decision to admit a confession. Section Sec. 3501 
is, after all, a mandate from Congress, a co-equal branch of our 
federal government, to judges to admit voluntary confessions. This 
mandate creates a duty in the prosecutors and the Department of Justice 
to raise and defend the constitutionality of Sec. 3501.

    Question 2. Are there ways in which section 3501 extends beyond the 
pre-Miranda voluntariness standards governing the admissibility of 
confessions? Please explain any differences that you see.
    Answer 2. Senator, 18 U.S.C. Sec. 3501 expands the pre-Miranda 
voluntariness standards by creating or recognizing a right to counsel 
during pre-indictment interrogation. The Sixth Amendment applies to 
interrogation only after indictment. See, e.g., Crooker v. California, 
357 U.S. 433 (1958); cf. Brewer v. Williams, 430 U.S. 387 (1977). The 
Due Process Clause has never been held to create a right to counsel in 
every case of pre-indictment interrogation. See, e.g. Cicenia v. La 
Gay, 357 U.S. 504 (1958). But 18 U.S. C. Sec. 3501(b) (4) and (5) 
instruct the trial judge, when considering the voluntariness of a 
confession, to take into consideration ``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.'' (Emphasis added.) This seems to me to create a statutory 
right to counsel in every pre-indictment interrogation, a salutary 
recognition by Congress of the importance of having the assistance of 
counsel during interrogation. Alternatively, these provisions may 
simply be a congressional interpretation of the Due Process Clause as 
creating a right to counsel during every pre-trial interrogation, an 
interpretation broader than the Supreme Court has yet recognized. As a 
co-equal branch of government, however, Congress is authorized (indeed, 
has a duty) to interpret the Constitution, which interpretation shall 
stand unless overruled by the Supreme Court. In either case, Sec. 3501 
supplies defendants with a broader right to counsel during 
interrogation than was available prior to Miranda.
    It also seems to me that subsection (b)(2) of 18 U.S.C. Sec. 3501 
broadens not only the pre-Miranda right against an involuntary 
confession but also the rights of a defendant under Miranda itself. 
This subsection requires the judge to consider ``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.'' Under pre-Miranda 
law, the Supreme Court had never held that notice of the subject of the 
interrogation was a part of the voluntariness calculus. And in 
interpreting Miranda, the Court has explicitly held that a waiver of 
rights is valid even though the suspect did not know what offense was 
to be the subject of the interrogation. Colorado v. Spring, 479 U.S. 
564 (1987).

    Question 3. Professor Thomas, your view appears to be that the 
Supreme Court in Miranda established an irrebuttable presumption that 
all custodial confessions obtained without Miranda warnings were 
``compelled'' and therefore not admissible. However, the Supreme Court 
has created exceptions to Miranda in Harris v. New York, 401 U.S. 222 
(1971) (impeachment), Michigan v. Tucker, 417 U.S. 433 (1974) (fruit of 
the poisonous tree doctrine inapplicable), Oregon v. Haas, 420 U.S. 714 
(1975) (impeachment), New York v. Quarles, 467 U.S. 649 (1984) (public 
safety), and Oregon v. Elstad, 470 U.S. 298 (1985) (waiver possible 
after initial response to unwarned yet uncoerced questioning). How do 
you reconcile your reading of Miranda with cases such as these?
    Answer 3. Yes, Senator, I believe that Miranda created an 
irrebuttable presumption that all confessions obtained without the 
warnings and waiver required by the Court are compelled within the 
meaning of the Fifth Amendment to the United States Constitution and 
cannot be used in court as evidence of the confessor's guilt. Only one 
of the cases you cite, however, involved the use of a confession in the 
prosecution's case as a way of showing guilt. The others permitted use 
of a confession taken without Miranda warnings for a collateral 
purpose--to impeach the defendant's credibility (Harris v. New York, 
401 U.S. 222 (1971); Oregon v. Haas, 420 U.S. 714 (1975)), or as a 
means of finding other evidence (Michigan v. Tucker, 417 U.S. 433 
(1974)). One of the cases did not even involve use of a confession 
taken in violation of Miranda (Oregon v. Elstad, 470 U.S. 714 (1975)), 
although there was an earlier statement in Elstad that did violate 
Miranda.
    In Michigan v. Tucker, 417 U.S. 433 (1974), the Court held that a 
witness who was found by use of a compelled confession could testify 
against the defendant. This does not seem to me in any way inconsistent 
with the principle that the compelled confession cannot be used as 
evidence of guilt. Similarly, Harris v. New York, 401 U.S. 222 (1971), 
and Oregon v. Haas, 420 U.S. 714 (1975), held that a confession 
compelled within the meaning of Miranda could be used to impeach the 
defendant if he testified. The confession remains inadmissible in the 
State's case in chief. Because the Miranda presumption is of Fifth 
Amendment compulsion, rather than Due Process coercion, it seems 
appropriate to me to hold that the confession cannot be introduced as 
evidence of guilt but can be introduced to impeach a defendant who 
testifies falsely. (A defendant can always seek to have the confession 
excluded even for impeachment purposes by arguing that the police used 
coercion).
    In Oregon v. Elstad, 470 U.S. 298 (1985), the Court held that a 
statement made after Miranda warnings and a voluntary waiver is 
admissible even though the police had elicited an incriminating 
statement before they gave the warnings. Elstad makes good sense to me. 
If the Miranda warnings are adequate to dispel the inherent compulsion 
of police interrogation, they should also dispel any compulsion 
resulting from the suspect's knowledge that he has already ``let the 
cat out of the bag.'' And Elstad makes clear that the first statement, 
the one made without warnings, is inadmissible. So, again, the Court is 
following the basic holding in Miranda that no confession can be 
admitted in the prosecution's case unless the police give the warnings 
and secure a waiver.
    To be candid, Senator, my theory of Miranda cannot explain New York 
v. Quarles, 467 U.S. 649 (1984). In Quarles, the Court created an 
exception to Miranda for cases in which ``public safety'' is 
threatened, holding that a confession which is presumed compelled under 
Miranda can nonetheless be admitted if the questioning was ``reasonably 
prompted by a concern for the public safety.'' It was a 5-4 decision 
which, in my view, partially overrules Miranda. I agree with Justice 
O'Connor's dissent in Quarles. She wrote, ``Were the Court writing from 
a clean slate, I could agree with its holding. But Miranda is now the 
law and, in my view, the Court has not provided sufficient 
justification for departing from it or for blurring its now clear 
strictures.''
    But, Senator, just because the Court has partly overruled Miranda 
in cases of threats to public safety does not mean that 18 U. S.C. 
Sec. 3501 is constitutional. The statute applies not just to public 
safety cases but to all interrogations and to all confessions.
    My view remains, Senator, that 18 U.S.C. Sec. 3501 is 
unconstitutional to the extent that it authorizes confessions to be 
admitted without Miranda warnings in any situation not covered by the 
Quarles public safety exception. Whether Miranda was properly decided 
is a difficult question, I think. But as Justice O'Connor said, it ``is 
now the law.'' Unless the Supreme Court sees fit to modify Miranda 
further, I believe the Court will strike down (or limit) 18 U.S.C. 
Sec. 3501.
                               __________

    Responses of Paul G. Cassell to Questions From Senator Thurmond

    Question 1. Professor Cassell, it appears to me that a major flaw 
with Miranda was that it only focused on the interests of the accused. 
The Congress responded by taking into account the interests of society 
and victims in making sure criminals are brought to justice. Do you 
think the law should strike a balance between the rights of defendants 
and the interests of society, and do you think Section 3501 does that 
better than Miranda?
    Answer 1. I believe that Sec. 3501 strikes a better balance between 
the interests of society and the defendant than does Miranda, 
particularly when Sec. 3501 is considered in a larger context. Section 
3501 should not be examined by itself, as its critics are wont to do, 
but rather against the backdrop of other developments. For example, 
since the passage of Sec. 3501, the Department of Justice has 
instituted more rigorous training and oversight for federal law 
enforcement agents. Moreover, the Congress has allowed actions, under 
the Federal Tort Claims Act, for willful misconduct by federal agents. 
These reforms are likely to do far more to protect against those rare 
cases of police abuse than do the Miranda rules. At the same time, 
Sec. 3 501 reduces the number of situations in which a guilty criminal 
who has voluntarily confessed to his crime will be able to escape 
justice. Section 3501 recognizes the tremendous importance of bringing 
such criminals to book, and thus strikes a better balance among 
competing concerns. But, in addition to all these reasons for 
supporting Sec. 3501, a critical point remains that the Miranda rules 
have ``locked in'' a single approach to evaluating the competing 
concerns in police interrogation. Upholding and applying Sec. 3501 will 
lead to serious consideration of a wide range of reforms in the 
interrogation area, such as videotaping of questioning and perhaps 
judicial questioning by magistrates. This experimentation will quite 
likely lead to even better ways of balancing the competing interests.

    Question 2. Professor Cassell, my understanding of the position of 
the Department of Justice is that Miranda is constitutionally required 
so they will not enforce Section 3501 in the lower Federal courts, but 
they have not decided what they will do if the issue reaches the 
Supreme Court. Were it not for people like you, would the courts have 
gotten the opportunity to consider whether the statute was 
constitutional?
    Answer 2. Unfortunately the current position of the Department of 
Justice makes it quite difficult for courts to consider the 
implications of Sec. 3501. Typically courts only review issues pressed 
by the parties. Defendants, of course, have no interest in using 
Sec. 3501. And when the Department of Justice does not present the 
statute, courts require considerably prompting to reach the question. 
It is noteworthy on this point that until the Washington Legal 
Foundation, among other groups, began raising Sec. 3501 in recent 
years, courts seemed to have forgotten about the statute. However, when 
WLF et al. pressed the issue in the Fourth Circuit and elsewhere, 
courts began to consider the issue, Thus, the tragic result of the 
Department's failure to press the statute is that in what must be 
countless numbers of cases, criminals who have voluntarily confessed to 
their crimes have suppressed their confessions and potentially escaped 
conviction. These criminals have gone free, it should be emphasized, 
simply because the Department of Justice, for reasons that remain 
mysterious, has refused to defend a presumptively valid Act of 
Congress.

    Question 3. Professor Cassell, assume that the Supreme Court 
upholds Section 3501, and assume further that the police continue to 
give the Miranda warnings as the statute encourages. Do you think a 
court would be any less likely to admit a confession using Section 3501 
than they are today?
    Answer 3. If Sec. 3501 is upheld, there is no reason to expect any 
dramatic change in the way that courts consider voluntariness issues. 
Courts have considerable experience in apply the voluntariness 
principle. Indeed, everyday across the country, courts make 
voluntariness determinations in determining whether non-Mirandized 
confessions can be used for impeachment or other purposes. Given this 
experience, Sec. 3501 will not present any novel questions for the 
courts and should not lead to any unanticipated consequences.
                               __________

   Responses of James K. Robinson to Questions From Senator Thurmond

    Question 1. In your prepared statement, you imply that Miranda's 
constitutional status depends more on the Supreme Court's application 
of the decision to the States than on ``[w]hatever ambiguity exists in 
what the Supreme Court has variously said in the post-Miranda cases.'' 
However, the Court has been anything but ambiguous in its post-Miranda 
decisions, which have consistently held that Miranda's procedural 
safeguards are not constitutionally mandated. See Harris v. New York 
401 U.S. 222 (1971); Michigan v. Tucke 417 U.S. 433 (1974); Oregon v. 
Haas, 420 U.S. 714 (1975); New York v. Quarles, 467 U.S. 649 (1984); 
Oregon v. Elstad 470 U.S. 298 (1985); v. United States, 512 U.S. 452 
(1994). Are not the Supreme Court's holdings, based on what the Court's 
various post-Miranda opinions say, the touchstone for 
constitutionality? How are the holdings of these cases consistent with 
the Justice Department's theory that the Miranda procedural safeguards 
are constitutionally required?
    Answer 1. We agree that all of the Supreme Court's decisions must 
be considered in determining the constitutional status of Miranda. For 
the reasons given in my prepared statement, and explained at greater 
length in the Brief for the United States in Dickerson v. United 
States, No. 99-5525 (S. Ct.), the Department of Justice has concluded 
that ``[a] well-established line of [the Supreme Court's] cases * * * 
requires the conclusion that Miranda, as applied by [the] Court, does 
indeed rest on a constitutional basis.'' Id. at 14. To be clear, 
however, the Department has never taken the position that the specific 
procedural safeguards identified in Miranda are constitutionally 
required. The Supreme Court expressly noted in Miranda that the 
Constitution requires no ``particular solution for the inherent 
compulsion of the interrogation process,'' and it expressly left open 
the possibility that Congress and the States might ``develop their own 
safeguards for the privilege, so long as they are fully as effective * 
* * in apprising accused persons of their right of silence and in 
affording the continuous opportunity to exercise it.'' 384 U.S. at 490.

    Question 2. As you confirm, the Justice Department's brief in the 
Leong case argued that the lower Federal courts were not free to apply 
Sec. 3501 and that the Department was not free to urge that they do so. 
In view of the Supreme Court's prudential policy of not considering 
questions not raised in the lower Federal courts, how did the 
Administration expect the Supreme Court to ever consider the issue of 
Sec. 3501's constitutionality?
    Answer 2. As is illustrated by the fact that the issue is now 
before the Supreme Court in Dickerson, the Department's position in the 
lower courts did not deprive the Supreme Court of the opportunity to 
pass on Section 3501's constitutionality. Although the Department was 
not pressing the issue in the lower federal courts, the issue was being 
actively pursued by amicus curiae. Moreover, any State could ask the 
Supreme Court to reconsider Miranda's exclusionary rule; such an 
argument, if successful, could have established Section 3501's validity 
in federal cases.

    Question 3. The Leong court expressly rejected your argument that 
you were not free to raise Sec. 3501 in the lower Federal courts. Why 
did you continue to make the same argument in the Dickerson case?
    Answer 3. To the extent that the panel in Leong held that it was 
free to determine the constitutionality of Section 3501, the Department 
agrees, and did not argue to the contrary in Leong. The Department's 
argument in Leong was that, in determining the statute's 
constitutionality, the Fourth Circuit was required to follow 
controlling Supreme Court precedent even if that precedent had arguably 
been undermined by subsequent Supreme Court cases. The Department 
repeated that argument in Dickerson because the Department believes the 
argument to be correct. See Agostini v. Felton, 521 U.S. 202, 237 
(1997).

    Question 4. In your prepared statement, you said that the Justice 
Department has ``instructed federal prosecutors to bring the Dickerson 
decision and Section 3501 to the attention of the district courts 
whenever a Miranda violation is alleged.'' Will the prosecutors urge 
the court to apply Sec. 3501 in the Fourth Circuit?
    Answer 4. In a memorandum from the Criminal Division sent to all 
United States Attorneys in the Fourth Circuit and to all Criminal 
Division Section Chiefs, the Department stated its view that ``when a 
defendant seeks the suppression of a statement allegedly obtained in 
violation of Miranda, prosecutors in the Fourth Circuit discharge their 
professional and ethical obligations if they call the district court's 
attention to the existence of Section 3501 and the Dickerson decision. 
The prosecutor should acknowledge that Dickerson is controlling 
authority insofar as it holds that `Sec. 3501, rather than Miranda, 
governs the admissibility of confessions in federal court.' The 
prosecutor should also advise the court, however, that the Department 
disagrees with Dickerson's holding, and that the decision remains 
subject to possible further review in the * * * Supreme Court. 
Moreover, prosecutors should urge district courts to rule on the 
defendant's claim under traditional Miranda analysis as well.''

    Question 5. As you know, the Tenth Circuit has also upheld the 
constitutionality of Sec. 3501. See United States v. Crocker, 510 F.2D 
1129 (10th Cir. 1975); United States v. Rivas-Lopez, 988 F. Supp. 1424 
(D. Utah 1997). In view of your instructions to Federal prosecutors in 
the Fourth Circuit, is the Department giving similar instructions in 
the Tenth Circuit and/or the District of Utah?
    Answer 5. No. The court in Crocker held that there was no Miranda 
violation in the case before it, see 510 F.2d at 1136-1138, and the 
subsequent decisions of Tenth Circuit have analyzed the admissibility 
of confessions under Miranda rather than Section 3501. See, e.g., 
United States v. Parra, 2 F.3d 1058, 1067-1068, cert. denied, 510 U.S. 
1026 (1993). (Rivas-Lopez is a district court decision.) Under those 
circumstances, the Department has not viewed it as advisable to 
instruct prosecutors in the Tenth Circuit to invoke Section 3501.

    Question 6. During a press conference on February 11, 1999, the 
Attorney General stated that ``in this administration and in other 
administrations preceding it, both parties have reached the same 
conclusion,'' i.e., that Sec. 3501 was unconstitutional. The 
Subcommittee has received a letter from former Attorney General Meese 
contradicting this assertion and detailed testimony from former 
Assistant Attorney General Stephen Markman on the same point. In 
addition, the Subcommittee was made aware of 1969 testimony by former 
Attorney General John Mitchell to a House Select Committee on Crime 
supporting the constitutionality of Sec. 3501 and a 1975 opinion 
obtained by the 10th Circuit upholding section 3501 pursuant to the 
litigating posture announced by former Attorney General Mitchell. It 
appears that the Attorney General was misinformed about prior 
Administrations. Has his information been brought to the Attorney 
General's attention?
    Answer 6. Yes, the testimony and letter to which you refer have 
been brought to the attention of the Attorney General. At her weekly 
press availability on February 11, 1999, the Attorney General stated 
that ``the Supreme Court has concluded that [the Miranda decision] is 
constitutionally based, since [the Supreme Court] has applied it to the 
States, as well. In this administration and other administrations 
preceding it, both parties have reached the same conclusion.'' It 
should be noted that during the tenures of former Attorneys General 
Mitchell and Meese, the Department rarely invoked Section 3501.

    Question 7. On June 11, 1969, Assistant Attorney General Will 
Wilson circulated a memorandum to United States Attorneys encouraging 
them to use 18 U.S.C. Sec. 3501 (reprinted in 115 Cong. Rec. 23,236-
23,238 (1969)). As of 1974, that policy was still in effect. See 
Gandara, Admissibility of Confessions in Federal Prosecution, 63 Geo 
L.J. 305, 312 (1974) (citing letter from Department dated May 15, 1974, 
stating policies set forth in the memorandum are ``still considered 
current and applicable''). On November 6, 1997, Assistant Attorney 
General John Keeney circulated a memorandum to United States Attorneys 
ordering United States Attorneys not to rely on Sec. 3501 without 
consulting with the Criminal Division. Did the policy announcement in 
the 1969 memorandum formally change before the 1997 memorandum? Please 
provide the Subcommittee with all formal policy guidance that has been 
given to federal prosecutors since 1969 regarding the use of Sec. 3501, 
with the exception of the November 6, 1997 memorandum.
    Answer 7. Apart from the November 6, 1997 memorandum, the 
Department issued two memoranda following the Fourth Circuit's decision 
in Dickerson: a memo to all federal prosecutors, dated February 12, 
1999, and a memorandum to prosecutors in the Fourth Circuit, dated 
March 4, 1999. Copies of both memoranda are attached. We are not aware 
of any other formal guidance to federal prosecutors since 1969.

    Question 8. Justice Department representatives have previously said 
they will defend the constitutionality of section 3501 in an 
``appropriate'' case. What cases are ``appropriate'' for such a 
defense?
    Answer 8. After undertaking a thorough examination of Section 
3501's constitutionality, the Department came to the conclusion that 
the lower courts cannot rely on Section 3501 to admit a confession that 
Miranda would exclude unless and until the Supreme Court overrules or 
modifies Miranda. In the Brief for the United States in Dickerson, the 
Department of Justice has concluded that the Court should grant 
certiorari to consider the constitutionality of Section 3501, but that 
the Court should not overrule Miranda.

    Question 9. In your prepared statement, you state that ``additional 
considerations'' are implicated whenever the question of defending a 
congressional enactment that is inconsistent with a decision of the 
United States Supreme is presented to the Department. No such 
``additional considerations'' were referred to by, for example, 
Solicitor General Waxman during his Senate confirmation hearings when 
asked about this subject. Are these ``additional considerations'' meant 
to be ``additional'' prerequisites to defending Acts of Congress where 
reasonable arguments can be made on their behalf.
    Answer 9. As I explained in my statement, and as the Attorney 
General explained in her November 1, 1999, letters to Congress 
respecting the Dickerson case, in determining whether to defend the Act 
of Congress the Executive Branch must take into account the respect 
that is due Supreme Court decisions under the doctrine of stare 
decisis. This is consistent with General Waxman's testimony. See 
Nomination of Seth Waxman to be Solicitor General: Hearing Before the 
Senate Comm. on the Judiciary, 105th Cong. 6-7 (1997) (Solicitor 
General should defend a law against constitutional challenge ``whenever 
reasonable arguments can be made in support of its constitutionality, 
except in the rarest instances such as where a statute directly 
conflicts with a Supreme Court ruling of constitutional dimension''); 
id. at 100-101 (``When there is a Supreme Court holding that interprets 
or implements the Constitution, however, the question of defending an 
Act of Congress that is inconsistent with that decision implicates 
additional considerations. The duty of the Solicitor General includes 
upholding the Constitution itself. In such a case, the Solicitor 
General must carefully weigh the duty to defend statutes against the 
obligation to respect the rulings of the Court. * * * In making [the] 
decision [whether to ask the Court to reconsider Miranda], the 
Department would consider the interests of law enforcement, as well as 
the important doctrine of stare decisis, the traditional restraint of 
the United States in asking for the overruling or modification of 
Supreme Court decisions, and the need to examine what indications exist 
that the Supreme Court may be receptive to a change in its 
decisions.'').

    Question 10. Your prepared statement mentioned that ``it is an 
infrequent occurrence that a case is lost on Miranda Lgrounds.'' We are 
interested in assessing the frequency of such occurrences. Please 
provide the Subcommittee a list of felony cases from January 20, 1993, 
to the present date in which the Department has lost a case on grounds 
related to Miranda and, in addition, cases in which the Department has 
had a confession suppressed on Miranda grounds and then later plea 
bargained the case for something less than what was originally charged.
    Answer 10. On November 5, 1997, in an addendum to a letter to 
Senator Fred Thompson, a copy of which is attached, we listed all 
adverse Miranda rulings reviewed by the Solicitor General between 
January 1, 1989 and November 1, 1997. We note, however, that the 
government did not necessarily lose each of these cases simply because 
statements were suppressed. The government is frequently able to 
proceed with the prosecution without the suppressed statements. Upon 
searching our adverse decision files from November 1, 1997, to November 
10, 1999, we have found 19 additional cases in which statements were 
suppressed on Miranda-related grounds. Five cases (## 1, 4, 11, 17, and 
18) are pending on the government's appeal, and thus there has not yet 
been a final disposition of the charges. Three cases are awaiting 
retrial or further proceedings in the district court (## 2, 8, and 15). 
In two cases, the government convicted the defendant at trial without 
the suppressed statements (## 7 and 12). In one case (# 19), the 
defendant pleaded guilty to the charge in the indictment. In four 
cases, the government resolved the charges through a plea agreement (## 
5, 6, 9, and 13). And finally, in three cases, the government dismissed 
the charges (## 3, 10, and 14). The cases are listed below.
    1. United States v. Peter Paul Hudson & Tammy Riness, Cr. No. 99-
163-LH (D.N.M. May 17, 1999) (district court suppressed statements 
elicited during a routine inspection at a fixed border checkpoint), 
appeal pending.
    2. United States v. Anibal Ortiz, 177 F.3d 108 (1st Cir. (D.Mass.) 
June 2, 1999) (court of appeals found an Edwards violation; officers 
initiated conversations after defendant asserted his Miranda rights) 
(case is set for a retrial in November).
    3. United States v. Ronald Gardner, No. 3:97CR244-Mu (W.D.N.C. 
March 9 1999) (district court discredited government witnesses and 
found that defendant had not voluntarily waived his Miranda rights) 
(government dismissed indictment).
    4. United States v. Zhi Man Liu and Tommy Chen, No. CR 98-0162 
(N.D. Calif. Dec. 9, 1998) (district court found that defendant was in 
custody and entitled to Miranda warnings), appeal pending.
    5. United States v. Walter Fleming, No. 98-0223 (D.D.C. Dec. 11, 
1998) (district court held that request for consent to search after 
assertion of Miranda rights violated Edwards) (defendant pleaded guilty 
to charges in the E.D. Va. and agreed to cooperate in return for 
dismissal of charges in D.C.).
    6. United States v. George Chamberlain, 163 F.3d 499 (8th Cir. (D. 
Minn.) Dec. 24, 1998) (holding that the defendant was in custody and 
hence entitled to Miranda warnings) (following vacation of his 
conviction, defendant pleaded guilty to one child pornography count and 
was sentenced to 51 months' imprisonment).
    7. United States v. Clara Castano, No. 98-8065-CR-Ryskamp (S.D. 
Fla. Oct. 16, 1998) (district court found that defendant was in custody 
and hence entitled to Miranda warnings) (convicted following a jury 
trial without suppressed statements; sentenced to 135 months' 
imprisonment).
    8. United States v. Willie Tyle, 164 F.3d 150 (3d Cir. (M.D. Pa.) 
Dec. 15, 1998) (court of appeals found an Edwards violation and 
remanded for further proceedings; no decision yet on remand).
    9. United States v. Errolyn Cherrymae Romero, No. CR97-1264 (C.D. 
Calif. July 14, 1998) (district court held that officer should have 
reissued Miranda warnings after polygraph exam) (tried to a hung jury 
(11-1 for conviction), followed by a guilty plea to the conspiracy 
charge; the defendant is awaiting sentencing).
    10. United States v. Jose Rosario Garibay, 143 F.3d 534 (9th Cir. 
(S.D. Calif.) May 5, 1998) (court of appeals held that defendant's 
waiver of Miranda rights was not knowing and intelligent) (retrial 
ended with a hung jury, after which, the government dismissed the 
charges).
    11. United States v. Robert Dice, No. CR-2-96-136 (S.D. Ohio Nov. 
24, 1997) (district court found an Edwards violation), pretrial appeal 
pending on unrelated issue.
    12. United States v. Khalid Bey, No. 97-191 (E.D. Pa. Mar. 10, 
1998) (the district court found that the defendant was in custody for 
Miranda purposes), affirmed, 168 F.3d 479 (3d Cir. 1998) (Table) 
(defendant was convicted at trial despite suppression of statements).
    13. United States v. Herman Joseph Byram, Jr., 145 F.3d 405 (1st 
Cir. (D. Me.) May 20, 1998) (district court suppressed unwarned 
statement finding that defendant was in custody for Miranda purposes, 
and suppressed subsequent testimony on ground that it was the fruit of 
the Miranda violation; government appealed suppression of testimony 
only; court of appeals affirmed) (on remand, defendant pleaded guilty 
as charged and was sentenced to 96 months' imprisonment).
    14. United States v. Jesse Gary Soliz, No. 96-50685 (9th Cir. (S.D. 
Calif.) Nov. 12, 1997) (court of appeals held that defendant had not 
waived his Miranda rights) (the government dismissed the case because 
we could not proceed without the confession).
    15. United States v. Leon Thomas, Jr., No. CR 99-0045 CRB (N.D. 
Calif. Sept. 3, 1999) (defendant was read his Miranda rights, but 
district court found that the government failed to establish 
defendant's oral waiver of rights) (no appeal; government will proceed 
without the statement; case is still pending in the district court).
    16. United States v. Anthony Zerbo, No. 98 Cr. 1163 (RPP) (S.D.N.Y. 
Oct. 8, 1999) (court found that defendant, who has a low IQ and a 
history of mental illness, did not voluntarily waive his Miranda 
rights) (no appeal; no disposition yet of criminal charges).
    17. United States v. Thomas Melendez Sanchez, No. 98-129 (SEC) 
(D.P.R. July 19, 1999) (defendant was entitled to Miranda warnings 
prior to testifying pursuant to a subpoena in a bank robbery trial of 
others), appeal pending.
    18. United States v. Juan Felipe Bermudez, No. 99-20071-M1 (W.D. 
Tenn. July 21, 1999) (defendant was in custody and hence entitled to 
Miranda warnings; also suppressing post-Miranda statement as fruit of 
unwarned statement), appeal pending.
    19. United States v. Jorge Romero, No. CR-99-0174-KKK (E.D. Calif. 
Sept. 10, 1999) (statement by police was tantamount to interrogation 
necessitating Miranda warnings) (no appeal; defendant pleaded guilty as 
charged and is awaiting sentencing).

    Question 11. I understand that the FBI recently announced that 
local offices could use videotaping of interrogations. Please describe 
how the use of videotaping is proceeding within the FBI today, 
including information about whether agents have found it to help or 
hinder their efforts to obtain confessions and whether it has been 
useful in preventing improper coercion against suspects.
    Answer 11. The FBI announced revised procedures in July 1998, 
designed to encourage field offices to consider when videotaping 
investigations would be appropriate in specific cases. It will take 
time for the FBI field offices to digest and implement broadly the 
revised policy. Only after sufficient time has elapsed, and videotaping 
has been employed in a sufficient number of cases, will the FBI be 
equipped to assess whether the use of videotaping has helped or 
hindered its investigative efforts.
                                 ______
                                 
                        U.S. Department of Justice,
                                         Criminal Division,
                                     Washington, DC, March 4, 1999.
RE: Memorandum for All United States Attorneys in the Fourth Circuit 
and All Criminal Section Chiefs

FROM: James K. Robinson, Assistant Attorney General

SUBJECT: 18 U.S.C. Sec. 3501

    In United States v. Dickerson, 1999 WL 61200 (Feb. 8, 1999), a 
divided panel of the Fourth Circuit reversed a district court order 
suppressing a confession because of its finding that the confession had 
been obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). 
The panel majority held that the defendant's confession was admissible 
under 18 U.S.C. 3501(a), which provides that a confession ``shall be 
admissible in evidence if it is voluntarily given.'' The majority 
determined that Congress had the authority to supercede Miranda by 
legislation because Miranda's requirements are not mandated by the 
Constitution.
    In a memorandum dated February 12, 1999, the Criminal Division 
advised all United States Attorneys and Criminal Division section 
chiefs that the Department continues to adhere to the view that the 
United States is not free to urge the lower courts to admit statements 
under Section 3501 that Miranda would exclude. Should the Supreme Court 
grant certiorari in a case involving the validity of Section 3501, the 
Department would then be free to ask the Court to reconsider Miranda's 
constitutional status, although the Department has not yet determined 
what position it would take in such a case. The Department recognizes, 
however, that in the interim, the Dickerson decision poses special 
concerns for prosecutors practicing in the Fourth circuit,
    It is the Department's view that when a defendant seeks the 
suppression, of a statement allegedly obtained in violation of Miranda, 
prosecutors in the Fourth Circuit discharge their professional and 
ethical obligations if they call the district court's attention to the 
existence of Section 3501 and the Dickerson decision. The prosecutor 
should acknowledge that Dickerson is controlling authority insofar as 
it holds that (Sec. 3501, rather than Miranda, governs the 
admissibility of confessions in federal court.'' The prosecutor should 
also advise the court, however, that the Department disagrees with 
Dickerson's holding, and that the decision remains subject to possible 
further review in the Fourth Circuit and the Supreme Court. Moreover, 
prosecutors should urge district courts to rule on the defendant's 
claim under traditional Miranda analysis as well.
    If you have any questions about this issue, please contact 
Appellate Section attorney Lisa Simotas, at (202) 616-9842, or by e-
mail.
                                 ______
                                 
                        U.S. Department of Justice,
                                         Criminal Division,
                                 Washington, DC, February 12, 1999.
Memorandum for All United States Attorneys and All Criminal Division 
Section Chiefs

FROM: James K. Robinson, Assistant Attorney General

SUBJECT: 18 U.S.C. Sec. 3501

    In United States v. Dickerson, 1999 WL 61200 (Feb. 8, 1999), a 
divided panel of the Fourth circuit reversed a district court order 
suppressing a confession because of its finding that the confession had 
been obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). 
The panel majority held that the defendant's confession was admissible 
under 18 U.S.C. 3501(a) which provides that a confession ``shall be 
admissible in evidence if it is voluntarily given.'' The majority 
determined that Congress had the authority to supersede Miranda by 
legislation because Miranda's requirements are not mandated by the 
Constitution. The Dickerson decision remains subject to possible 
further review in the Fourth Circuit and the Supreme Court.
    In a memorandum dated November 6, 1997 (a copy of which is 
attached), the Criminal Division advised all United States Attorneys 
and Criminal Division section chiefs that, after thoroughly reviewing 
the legal issues, the Department had concluded that unless the Supreme 
Court were to modify or overrule Miranda and the cases that have 
continued to apply it, the lower courts are not free to rely on Section 
3501 to admit statements that Miranda would exclude, and the United 
States is not free to urge lower courts to do so. The Department 
continues to adhere to the views expressed in the November 6, 1997, 
memorandum.
    Accordingly, federal prosecutors should not rely on the 
voluntariness provision of Section 3501 to urge lower federal courts to 
admit statements taken in violation of Miranda without first consulting 
with the Criminal Division. If you have any questions about this issue, 
please contact Appellate Section attorney Lisa Simotas, at (202) 616-
9642, or by e-mail.
Attachment
                                 ______
                                 
                        U.S. Department of Justice,
                                         Criminal Division,
                                  Washington, DC, November 6, 1997.
Memorandum for All United States Attorneys and All Criminal Division 
Section Chiefs

FROM: John C. Keeney, Acting Assistant Attorney General

SUBJECT: 18 U.S.C. Sec. 3501

    Section 3501 of Title 18, United States Code, provides that ``in 
any criminal prosecution brought by the United States,'' a confession 
``shall be admissible in evidence if it is voluntarily given.'' The 
statute requires trial judges to make a threshold determination of 
voluntariness outside the presence of the jury, and provides that 
voluntariness shall be assessed based on the totality of the 
circumstances--including whether or not the defendant was advised or 
knew that he was not required to make any statement and that any such 
statement could be used against him,'' and whether the defendant had 
been advised of his right to counsel. Section 3501(b) states, however, 
that the ``presence or absence'' of any particular factor--including 
whether the defendant received the warnings required by Miranda v. 
Arizona, 384 U.S. 436 (1986)--``need not be conclusive on the issue of 
voluntariness of the confession.''
    Section 3501 was intended by Congress to secure the admissibility, 
in federal courts, of voluntary statements that would otherwise be 
suppressed under Miranda. Since its enactment in 1968, the statute has 
rarely been invoked by federal prosecutors. However, in part due to 
questions as to its constitutionality that were recognized even by 
Congress when it passed the law. See, e.g., S. Rep. No. 1097, 90th 
Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. and Admin. 
News 2112, 2137-2138 (``No one can predict with any assurance what the 
Supreme Court might at some future date decide if these provisions are 
enacted * * *. The committee feels that by the time the issue of 
constitutionality would reach the Supreme Court, the probability is, 
that this legislation would be upheld.'').
    Recently, in United States v. Leong, No. 96-4876, the Fourth 
Circuit directed the parties to address the applicability of Section 
3501 in a case in which a defendant's admission was suppressed for 
failure to give Miranda warnings. The Department thoroughly reviewed 
the legal issues and came to the conclusion that unless the Supreme 
Court were to modify or overrule Miranda and the cases that have 
continued to apply it, the lower courts are not free to rely on Section 
3501 to admit statements that would be excluded by Miranda, and the 
United States is not free to urge lower courts to do so. The Fourth 
Circuit ultimately declined to address the applicability of Section 
3501 because the issue was not raised in the district court.
    The Dapartment has not yet decided whether it would ask the Supreme 
Court in an appropriate case to overrule or modify Miranda. While the 
Department considers this issue, federal prosecutors should not rely on 
the voluntariness provision of Section 3501 to urge the admission of a 
statement taken in violation of Miranda without first consulting with 
the criminal Division.
    Copies of the brief in the Leong case are available from the 
Appellate Section of the Criminal Division. If you have any questions 
about this issue, please contact Patty Merkamp Stemler, Chief of the 
Appellate Section, at (202) 514-2611, e-mail CRM04 (STEMLER).
                                 ______
                                 
                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                  Washington, DC, November 5, 1997.
The Hon. Fred Thompson,
U.S. Senate Washington, DC.
    Dear Senator Thompson: This responds to your June 4, 1997, letter 
to the Attorney General, in which you asked several questions relating 
to the Justice Department's use of Section 3501. I apologize for the 
delay in responding to your inquiry. As you know, the Department of 
Justice has been actively engaged during the past several months in a 
comprehensive analysis of the constitutionality of Section 3501. That 
analysis was prompted by a supplemental briefing order in United States 
v. Leong, 116 F.3d 1474 (4th Cir. June 26, 1997) (table), which was 
issued while the Fourth Circuit was considering whether to rehear the 
case sua sponte and which required the government to address the 
constitutionality of Section 3501. Following a thorough review of the 
case law, the Attorney General determined that the federal appellate 
and district courts may not apply Section 3501 to admit a voluntary 
confession in a case in which Miranda v. Arizona, 384 U.S. 436 (1966), 
would require its exclusion. Nor may federal prosecutors urge the lower 
federal courts to rely on Section 3501 in such circumstances. We have 
previously provided you with a copy of the government's supplemental 
brief in Leong, but we are again enclosing a copy of that brief which 
details the legal reasoning behind the Department's recently announced 
policy with respect to section 3501.
    Following the submission of the government's supplemental brief in 
Leong, the court of appeals declined to rehear the case, albeit for a 
different reason than that urged by the government. I have attached a 
copy of the court's order disposing of the case.
    You also ask why the government did not raise Section 3501 in the 
district court in United States v. Sullivan, a firearm prosecution from 
the Eastern District of Virginia. Defendant Sullivan caught suppression 
of an incriminatory statement and a gun on the ground that he had been 
subjected to custodial interrogation during a traffic stop but had not 
received Miranda warnings. The government argued at the suppression 
hearing that defendant Sullivan was not in custody when he confessed to 
possessing a gun, and therefore he was not entitled to Miranda 
warnings. The government did not raise Section 3501 in the district 
court because the prosecutor was reasonably confident that the 
government would prevail on the merits of the custody issue.
    The district court held that Sullivan was in custody when he 
admitted that he had a gun, and therefore the officer should have 
issued Miranda warnings prior to eliciting this admission. After the 
district court suppressed the statement and the gun as fruits of a 
Miranda violation, the United States Attorney's office sought 
authorization to appeal from the Solicitor General's Office. As you 
know, the permission of the Solicitor General must be obtained before 
an appeal is taken from a decision adverse to the United States, and 
the United States Attorney's office is required to advise the Solicitor 
General of all issues it intends to raise on appeal. Specifically, the 
United States Attorney's Office sought permission to argue that 
Sullivan was not in custody, and hence he was not entitled to Miranda 
warnings, when he made the incriminatory statement that led to the 
discovery of the gun. In accord with standard procedure, the 
recommendation was reviewed by the criminal Division, which endorsed 
the custody argument, and the Acting Solicitor General Walter A. 
Dellinger authorized the appeal on that ground. The United States 
Attorney's Office did not seek authorization to raise Section 3501 on 
appeal, nor did the Acting Solicitor General give such authorization. 
Nevertheless, in the government's opening brief, the United States 
Attorney's Office argued that Section 3501 precluded suppression of the 
evidence.
    Shortly thereafter, Sullivan's counsel brought this argument to the 
attention of the Solicitor General's Office and inquired whether Mr. 
Dellinger had authorized the United States Attorneys Office to make the 
Section 3501 argument. Upon reviewing the brief, the record below, and 
the letter of the United States Attorney's Office seeking authorization 
to appeal, and after consulting with the United States Attorney, Acting 
Solicitor General Dellinger decided to withdraw the government's brief 
because it presented ``issues that were not raised or addressed in the 
district court and that were not presented to [him] for consideration 
at the time [he] authorized the government to appeal, as required by 
Department of Justice regulations.'' March 26, 1997 letter from Walter 
Dellinger, Acting Solicitor General, to Patricia S. Conner, Clerk, 
United States Court of Appeals for the Fourth Circuit. The Acting 
Solicitor General drew the court of appeals' attention to 28 C.F.R. 
0.20, which states that the Solicitor General shall ``determin[e] 
whether, and to what extent, appeals will be taken by the Government to 
all appellate courts.'' Mr. Dellinger reassigned the case to an 
attorney in the Criminal Division, who resubmitted the brief without 
the Section 3501 argument. The appeal is still pending in the Fourth 
Circuit.
    You also ask, for ``a list of all cases since 1989 in which the 
Justice Department has raised as an appellant before the court of 
appeals an argument that was not raised in the district court.'' This 
information is not readily accessible; we could not prepare such a list 
without reviewing in detail approximately 4,000 case files. Although 
the government may often defend a favorable judgment on appeal on a 
legal ground not presented in the lower court, the Department can 
assure you that the instances in which the Solicitor General authorizes 
the government as appellant to advance an argument that was not 
preserved below are rare. The Solicitor General's restraint in this 
regard promotes the Department of Justice's strong institutional 
interest in preventing criminal defendants from gaining relief based on 
arguments raised for the first time on appeal. As you are aware, such 
arguments are subject to stringent legal limitations.
    You also ask that the Department inform you of every case since 
1989 in which a federal court ordered the suppression of any statement 
under Miranda. The Department's filing system and records do not 
readily yield a definitive list of such cases. We have, however, 
reviewed all memoranda submitted to the Solicitor General, as of 
November 1, 1997, concerning such cases and have found a total of 57 
cases (some involving multiple, decisions) in which adverse Miranda 
rulings made by the federal courts have been reviewed by the Solicitor 
General. The cases reviewed by the Solicitor General are listed in an 
addendum to this letter. We recognize that this list no doubt excludes 
a number of cases in which confessions were suppressed under Miranda, 
including cases that were ultimately resolved in a manner favorable to 
the United States. As far as we have been able to determine, United 
States v. Cheely, 36 F.3d 1439, 1448 (9th Cir. 1994), is the only one 
of these cases since 1989 in which Section 3501 was affirmatively 
relied upon by the government and addressed on the merits by a federal 
court. The government raised Section 3501 in the district court in 
United States v. Dickerson, No. 97-159-A (E.D. Va. July 1, 1997), but 
the district court did not address this argument in its suppression 
order. It would be extremely difficult, if not impossible, to ascertain 
the particular reasons why the government did not raise section 3501 in 
each of the other listed cases. However, it is likely that section 3501 
has been raised infrequently over the last 28 years at least in part 
because of the serious questions as to its constitutionality that were 
recognized even at the time of the law's enactment.
    You also ask the Department to inform you ``of every case in which 
the Department of Justice has relied on Section 3501 since 1989, and, 
in every such case whether the court reached the issue and what the 
result was.'' It would be nearly impossible to provide a definitive 
answer to the question you pose inasmuch as the Department of Justice 
does not maintain a listing of the arguments that federal prosecutors 
have made in responding to the myriad claims raised by criminal 
defendants in the district and appellate courts. We have noted above 
two cases of the type you have inquired about, and we are not 
presently-aware of others. However, short of ordering the individual 
United States Attorneys' Offices to conduct a case-by-case audit of 
their pleadings in all cases since 1989 in which the admissibility of a 
confession has been challenged, we have no way of determining for 
certain whether federal prosecutors have relied on Section 3501 in 
other cases to defend the admissibility of a confession.
    Finally, the Department has not previously considered it necessary 
to provide guidance to the United States Attorneys concerning reliance 
on Section 3501. In light of the supplemental brief that was filed in 
Leong, the Department plans to provide future guidance to the United 
States Attorneys as is appropriate.
    I hope that this information adequately responds to your inquiries 
on Section 3501. Please do not hesitate to contact me if I can be of 
further assistance on this or any other matter.
            Sincerely,
                                               Andrew Fois,
                                        Assistant Attorney General.
                                 ______
                                 

                                ADDENDUM

       Adverse Miranda Rulings Reviewed by the Solicitor General

                    January 1, 1989-November 1, 1997

    United States v. Charles T. Dickerson, No. 97-159-A (E.D. Va. July 
1, 1997), appeal pending (4th Cir.)
    United States v. Erving Lewis, No. 96-747-MV (D.N.M. July 1, 1997), 
appeal pending (10th Cir.)
    United States v. Roger Martin, No. 96-851-CR-Ferguson (S.D. Fla. 
May 27, 1997)
    United States v. Sheri Lynn Bulacan, No. 96-00801 (D. Hi. May 1, 
1997)
    United States v. Leaburn Alexander, 106 F.3d 874 (9th Cir. Feb. 3, 
1997) (reinstating suppression order that district court had vacated 
prior to second trial)
    United States v. Bernard Watson, 871 F. Supp. 988 (N.D. Ill. Dec. 
5, 1994), reversed and remanded, 87 F.3d 927 (7th Cir. July 3, 1996), 
suppressing on remand, 1997 WL 24673 (N.D. Ill. Jan. 17, 1997), denying 
suppression on motion to reconsider, 1997 WL 124268 (N.D. Ill. Mar. 24, 
1997)
    United States v. Robert H. Sullivan, 948 F, Supp. 519 (E.D.Va. Nov. 
19, 1996), appeal pending, No. 97-4017 (4th Cir.)
    United States v. Amando Fernandez Ventura and Milagros Cedeno, 892 
F.Supp. 362 (D.P.R. June 30, 1995), reversed and remanded, 85 P.3d 708 
(1st Cir. 1996), suppressing on remand, 947 F. Supp. 25 (D.P.R. Nov. 
14, 1996)
    United States v. Patrick Elie, No. 96-203-A (E.D.Va. July 18, 
1996), reversed, 111 F.3d 1135 (4th Cir. April 24, 1997)
    United States v. Pablo Hernandez & Suleima Silva, No., CR-95-65-
Seay (E.D. ok. Dec. 19, 1995), reversed and remanded, 93 F.3d 1493 
(10th Cir. Aug. 30, 1996)
    United States v. Tony Leong, No. AW-96-0272 (D. Md. Oct. 18, 1996), 
affirmed, No. 96-4676 (4th Cir. June 26, 1997)
    United States v. Aaron L. Salvo, No. 1:96 CR 352 (N.D. Ohio Feb. 
27, 1997), appeal pending (6th Cir.)
    United States v. Aimee Lowry, No. LR-CR-94-180 (8.D. Ark. Nov. 22, 
1994)
    United States v. James Edward Rogers, No. 94-CP-0133-01D (D.Wy. 
June 26, 1995)
    United States v. Achille Barbel, Crim. No. 93-30 (April 12, 1993 D. 
V.I. 1993)
    United States v. Kelly Richards, et al., No. CR. S-92-193-LKK (E.D. 
Calif. Feb. 250 1994)
    United States v. Jaime Vargas, No. 93-207-CR-MORENO (S.D. Fla. July 
16, 1993)
    United States v. Michael LaPorta, No. 91-290C (W.D. N.Y. Nov. 18, 
1993)
    United States v. Sieni Tagovailoa, No. 92-00949 (D. Haw. Oct. 5, 
1992), affirmed, 5 F.3d 543 (Table), 1993 WL 343151 (9th Cir. 1993)
    United States v. Gregory Lee Martin, No. 92-30146-WLB (S.D. Ill. 
March 11, 1993), reversed and remanded, 9 F.3d 113 (Table), 1993 WL 
430154 (7th Cir. 1993)
    United States v. Roderick J. Hanks, No. CR 92-10087-01 (D. Kan. May 
3, 1993), appeal dismissed, 24 F.3d 1235 (10th Cir. 1994)
    United States v. Raymond Cheely, Jr., No, A92-073 (D. Alaska Dec. 
22, 1992), affirmed, 21 F.3d 914 (9th Cir. 1994), superseded and 
amended, 36 F.3d 1439 (9th Cir. 1994)
    United States v. Kevin R. Smith, et al., 3 F.3d 1088 (7th Cir. Aug. 
26, 1993)
    United States v. Vincent Anthony Purdue, No. 92-3140 (10th Cir. 
Nov. 1, 1993)
    United States v. Brian Edward Henley, 984 F.2d 1040 (9th Cir. Jan. 
29, 1993)
    United States v. Phillip Ramsey, Jr., 992 F.2d 301 (11th Cir. 1993)
    United States v. Patrick William Swint (M.D. Pa. Apr. 28, 1993)
    United States v. Teresa Mechell Griffin, 7 F.3d 1512 (10th Cir. 
Oct. 26, 1993), on appeal from remand, 48 F.3d 1147 (Feb. 23, 1995)
    United States v. Lowell Green, 592 A.2d 985 (D.C. App. 1991), cert. 
granted, 504 U.S. 908 (1992), cert. dismissed as moot, 507 U.S. 545 
(1993)
    United States v. Gordon Lynn Smith, Crim. No. 6:92CR29 (E.D. Tex. 
Dec. 12, 1992), reversed, 7 F.3d 1164 (5th Cir. 1993)
    United States v. Brian E. Benton, No. 1:CR-92-227 (M.D. Pa. Dec. 2, 
1992), reversed, 996 F.2d 642 (3d Cir. 1993)
    United States v. Thomas Lowell Allen, Crim. No. 91-20294-TU (W.D. 
Tenn. July 24, 1992)
    United States v. Pasquale G. Barone, 968 F.2d 1378 (1st Cir. 1992)
    United States v. Sidney Taylor, No. 92-14-02 (M.D.N.C. May 21, 
1992)
    United States v. Cordell L. Tillman, 963 F.2d 137 (6th Cir. 1992)
    United States v. Edwin Etcitty, No. 91-487-JB (D.N.M. March 
18,,.1992)
    United States v. Robin Rene Warner (Juniata Marla Redd), 955 F.2d 
441 (6th Cir. 1992), superseded by, 971 F.2d 1189 (6th Cir. 1992)
    United States v. Guillermo Soto, 953 F.2d 263 (6th Cir. 1992)
    United States v. Gerald W. Swims Under, No. CR-92-01-GF-PGH (D. 
Mont. March 16, 1992), affirmed in part and vacated in part, 990 F.2d 
1265 (9th Cir. 1993) (table)
    United States v Avaughn 0. Green, Crim. No. 91-0462 (D.D.C. Oct. 
28, 1991)
    United States v. Jacinto Antonio Alava-Solano, No. CR91-1058B (W.D. 
Wash., Oct. 17, 1991)
    United States v. Dominick Mark Peso, No. CR-90-452 (D.N.M. July 31, 
1991)
    United States v. Isaza Gonzalo, No. 90-CR-583 (E.D.N.Y. June 26, 
1991)
    United States v. Pawel Zygmunt Szymaniak, No. 90-1620 (2d Cir. May 
30, 1991)
    United States v. Leonard David Griffin, 922 F.2d 1343 (8th Cir. 
1990)
    United States v. Mjcheal Spencer, No. 90-CR-359 (S.D.N.Y. Oct. 17, 
1990)
    United States v. Rene Martin & Barry Williams, No. J90-00015(W)/
00016(W) (S.D. Miss., July 16, 1990)
    United States v. Warren James Bland, 908 F.2d 471 (9th Cir. 1990)
    United States v. Gerald Charles Alexander, No. 2:90-CR-03 (W.D. 
Mich., July 3, 1990), affirmed, 925 F.2d 1465 (6th Cir. 1991) (table)
    United States v. Clarence Edward Coles, No. 89-80324 (E.D. Mich., 
April 10, 1990)
    United States v. Wallace Lewis Miles, CR 89-60068-2 (D. Ore., Jan. 
11, 1990), reversed, 917 F.2d 1307 (9th Cir. 1990) (table)
    United States v. Terry Gene Carter, 884 F.2d 368 (8th Cir. 1989), 
affirming district court's suppression order, No. CR-88-40017-01 
(D.S.D. Aug. 18, 1988)
    United States v. Mikelis Kirsteins, No. 87-CV-946 (N.D.N.Y. Aug. 
21, 1989), reversed, 906 F.2d 919 (2d Cir. 1990)
    United States v. Bruce Miller, 722 F. Supp. 1 (W.D.N.Y. Aug. 18, 
1989)
    United States v. John Doe (Lynn M. O'Brien), 878 F.2d 1546 (1st 
Cir. 1989)
    United States v.Earnestine Mack and Albert Ray Macklin, Crim. No. 
88-20235 (W.D. Tenn., May 30, 1989), reversed, 900 F.2d 948 (6th Cir. 
1990)
    United States v. Roger W. Bosier, No. CR-1-88-086-01 (S.D. Ohio, 
Feb. 22, 1989)

                 Additional Submissions for the Record


                              ----------                              


      IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

                               __________

                              No. 97-4017

                               __________

                       UNITED STATES OF AMERICA,

                                                   Appellant,

                                              v.

                          ROBERT H. SULLIVAN,

                                                Appellee.

                               __________

    On Appeal from the United States District Court for the Eastern 
               District of Virginia, Alexandria Division

                               __________

BRIEF OF AMICI CURIAE THE WASHINGTON LEGAL FOUNDATION AND UNITED STATES 
  SENATORS JEFF SESSIONS, JON KYL, JOHN ASHCROFT, AND STROM THURMOND, 
              SUPPORTING APPELLANT ON ALTERNATIVE GROUNDS

                               __________

                       Interests of Amici Curiae

    The Washington Legal Foundation (WLF) is a national, nonprofit law 
and policy center based in Washington, D.C., that devotes substantial 
resources to litigating cases raising constitutional issues, including 
cases concerning the rights of victims of crime and the proper 
administration of the criminal law. In that regard, WLF has 
participated in numerous cases before the Supreme Court and this Court, 
and has filed briefs addressing the very issue WLF addresses in this 
case, namely, the applicability of 18 U.S.C. Sec. 3501. See, e.g., 
Davis v. United States, 512 U.S. 452, 457 n.* (1994) (noting amicus 
brief by WLF raising the 18 U.S.C. Sec. 3501 issue).
    United States Senators Jeff Sessions, Jon Kyl, John Ashcroft, and 
Strom Thurmond are duly elected Members of the United States Senate and 
members of the Senate Judiciary Committee. They have a strong interest 
in the proper administration of federal criminal laws and procedure in 
both their representational and legislative capacities. In particular, 
the congressional amici are concerned that a duly-enacted law of 
Congress--18 U.S.C. Sec. 3501--has not been effectively enforced to the 
detriment of the criminal justice system and crime victims in this 
country. As Associate Justice Antonin Scalia has observed, the failure 
to enforce section 3501 may have produced ``the acquittal and the 
nonprosecution of many dangerous felons, enabling them to continue 
their depredations upon our citizens.'' Davis v. United States, 512 
U.S. 452, 465 (1994) (Scalia, J., concurring).

                            Issue Presented

    Whether the district court erred in suppressing under Miranda 
custody doctrine the defendant's incriminating and voluntary statement 
in light of Congress' mandate in 18 U.S.C. Sec. 3501 that all voluntary 
statements ``shall be admissible in evidence.''

                    Statement of the Case and Facts

    Amici adopt the ``Statement of the Case'' and ``Statement of the 
Facts'' of the United States. In brief, the defendant's car was stopped 
by United States Park Police on the George Washington Parkway near 
National Airport because of a missing front license plate. After 
examining the defendant's license and registration and running a 
computer check, the officer returned them to the defendant with the 
admonition to take care of the missing front plate (rather than issuing 
him a citation for a clear violation of Virginia Traffic Code 
Sec. 46.2-715.). At this point, Sullivan was free to go. The officer 
then asked Sullivan if he had anything illegal in the car, whereupon 
Sullivan did not at first respond. The officer asked again, telling 
Sullivan it would be better to tell him now. Sullivan then told the 
officer he had a gun under the seat of the car. The officer looked 
under the seat and found a loaded Browning 9mm pistol with 14 rounds. 
Sullivan was charged with illegally carrying a weapon because he had a 
prior felony conviction.
    The district court suppressed the statement and the gun itself 
because it ruled that Sullivan was in ``custody'' for Miranda purposes 
and should have been given Miranda warnings.

                        Summary of the Argument

    The district court erred in suppressing defendant's voluntary 
incriminating statement. In 1968, Congress enacted 18 U.S.C. Sec. 3501 
to supersede the Miranda rules as conditions on the admission of 
statements made by suspects and to restore the traditional 
voluntariness standard. See 18 U.S.C. Sec. 3501(a) (voluntary 
statements ``shall'' be admitted in evidence).\1\ Section 3501 complies 
with the Constitution. Since the Miranda rules are not of 
constitutional stature, Congress possesses the power to modify or even 
abrogate them. The Supreme Court has emphasized that Miranda warnings 
are not themselves constitutional requirements. Rather, they are merely 
``suggested safeguards.'' See, e.g., Michigan v. Tucker, 417 U.S. 433, 
444-45 (1974); New York v. Quarles, 467 U.S. 649, 645-55 & n.5, 658 n.7 
(1984). In the absence of unconstitutional compulsion in violation of 
the Fifth Amendment there is no constitutional impediment to admitting 
a suspect's voluntary incriminating statements despite non-compliance 
with Miranda. According, section 3501 provides the governing law for 
federal cases. Accord United States v. Crocker, 510 F.2d 1129, 1137 
(10th Cir. 1975) (upholding section 3501).
---------------------------------------------------------------------------
    \1\ Pursuant to Local Rule 28(b), the full text of 18 U.S.C. 
Sec. 3501 is included in the Addendum to this brief.
---------------------------------------------------------------------------
    While this issue was originally raised by the United States but 
withdrawn in their redacted brief, this Court can and should 
nevertheless consider the Sec. 3501 issue as more fully stated in our 
unopposed motion for leave to file this brief.

                                Argument

    For the convenience of the Court and in the interests of judicial 
economy, amici adopt Part II of the original brief of the United 
States, filed in this case on March 5, 1997, at 15-23.(``Part II. 
Sullivan's statements were not subject to suppression in any event, 
because Congress has directed that voluntary statements shall be 
admissible, notwithstanding the failure to give Miranda Warnings, 18 
U.S.C. 3501''). This portion of the government's original brief is 
reproduced here in the Addendum to this brief (A2-A12) and is hereby 
incorporated by reference as part of amici curiae's brief.
    Rather than draft their own brief on this issue (as amicus WLF has 
done in prior cases), amici believe that this Court should have the 
benefit of the original brief filed on behalf of the United States by 
the career prosecutors handling the case; accordingly, we adopt it as 
our own.

                               Conclusion

    For the foregoing reasons and those stated in our unopposed motion 
for leave to file our amici brief, the judgment of the district court 
suppressing defendant's statement should be reversed.
            Respectfully submitted,
                                   Daniel J. Popeo,
                                   Paul D. Kamenar,
                                           Washington Legal Foundation.

                                   Paul G. Cassell,
                                           (Counsel of Record),
                                           University of Utah.

                        Counsel for Amici Curiae

                               __________

                              No. 97-4750

                               __________

                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT

                               __________

                       UNITED STATES OF AMERICA,

                                              Plaintiff-Appellant,

                                   v.

                       CHARLES THOMAS DICKERSON,

                                              Defendant-Appellee.

                               __________

    ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN 
                DISTRICT OF VIRGINIA ALEXANDRIA DIVISION

                               __________

BRIEF OF THE WASHINGTON LEGAL FOUNDATION AS AMICUS CURIAE IN OPPOSITION 
                       TO PETITION FOR REHEARING

                               __________

                                        
Daniel J. Popeo                     Paul G. Cassell
Paul D. Kamenar                     (Counsel of Record)
Washington Legal Foundation.        University of Utah.
                                      
                                    Counsel Amicus Curiae

            Date: March 19, 1999

                               __________

BRIEF OF THE WASHINGTON LEGAL FOUNDATION AS AMICUS CURIAE IN OPPOSITION 
                       TO PETITION FOR REHEARING

                               __________

                       INTEREST OF AMICUS CURIAE

    The Washington Legal Foundation (WLF) appeared as amicus curiae in 
this case arguing both in its brief and at oral argument that 18 U.S.C. 
Sec. 3501 governs the admissibility of the confession made by the 
defendant Charles Dickerson. The panel agreed with WLF's argument. 
United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999).
    This Court requested that WLF respond to Dickerson's petition for 
rehearing and rehearing en banc after receiving the submission by the 
Department of Justice on behalf of the United States which, although 
having prevailed (albeit on grounds that it did not urge), agreed with 
the defendant that the issue of 18 U.S.C. Sec. 3501 warranted rehearing 
en banc. While Dickerson requests rehearing not only of the Section 
3501 issue but also of the validity of the search warrant, this brief 
will address only the Section 3501 issue.\1\
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    \1\ The Department of Justice argued in its answer brief that the 
issue regarding the validity of the search warrant was correctly 
decided and does not warrant rehearing en banc. Br. of U.S. at 13. WLF 
concurs with that position.
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                  INTRODUCTION AND SUMMARY OF ARGUMENT

    This case does not warrant further review by this Court for two 
reasons. First, contrary to the arguments by Dickerson and the Justice 
Department, the panel's conclusion that 18 U.S.C. Sec. 3501 rather than 
Miranda v. Arizona, 384 U.S. 436 (1966), governs the admissibility of 
Dickerson's confession is correct in all respects. Thus, just as the 
Department argues that the search warrant issue was correctly decided 
and therefore should not be reheard, so too should the Court decline to 
rehear the Section 3501 issue. As the panel concluded in a 
comprehensive and well-reasoned opinion, Section 3501, enacted after 
Miranda, is an Act of Congress that directly establishes the rules 
under which confessions are admissible in federal prosecutions. 
Accordingly, that statute must govern unless Miranda's exclusionary 
rule takes precedence. That exclusionary rule can take precedence only 
if it is constitutionally required. The panel convincingly demonstrated 
that Miranda's rule is not constitutionally required, because of what 
Miranda itself said on the subject and because of numerous subsequent 
Supreme Court decisions so stating and holding, the most important of 
which both Dickerson and the Justice Department assiduously avoided 
addressing in their respective briefs.
    Second, even if there were some doubt about whether the panel has 
decided this question correctly, the Court should still exercise its 
discretion against a grant of en banc rehearing. The question whether 
Section 3501 or Miranda governs the admissibility of confessions in 
federal prosecutions is, to be sure, of ``exceptional importance'' 
which is a necessary but not sufficient reason for rehearing en banc 
under Fed. R. App. Proc. 35(b). But the question is of sufficient 
importance that certiorari is likely to be granted by the Supreme Court 
if the panel decision is left undisturbed. Accordingly, the likelihood 
that the Supreme Court will ultimately resolve the question is a proper 
basis for the en banc court to decline to consider it and avoid the 
delay that such consideration inevitably will entail.
    If, on the other hand, rehearing is granted and the en banc Court 
were to reverse the panel for any reason, it is highly unlikely that 
the Section 3501 question will ever reach the Supreme Court because the 
United States, which will be the only party with standing to seek 
certiorari, is all but certain not to do so. Thus, the practical effect 
would almost certainly be to allow the Department of Justice to 
continue to refuse to enforce an Act of Congress on the basis of 
asserted doubts about its constitutionality that, it claims, only the 
Supreme Court can resolve--while simultaneously preventing the Supreme 
Court from resolving them. Thus, this unique and unwarranted posture of 
the Department of Justice is itself reason enough for the Court to 
exercise its discretion to deny en banc rehearing.
    This course seems especially appropriate here, because the 
Department of Justice has stated repeatedly that the position it is 
advancing before this Court--that Miranda rather than Sec. 3501 
governs--is not, the Department says, necessarily the position it will 
take in the Supreme Court if this case is heard there. Where a question 
seems important enough to warrant Supreme Court review in any event, 
and where one of the parties to a case has announced that it is 
planning on presenting a position to this Court that may change once 
the case is before the Supreme Court, it is almost impossible to see 
why the en banc court should spend its resources on the case. Rather, 
the preferable course would be to let the question be decided by the 
Supreme Court, which, at least, may have the benefit of the 
Department's ultimate position on the matter.

                                ARGUMENT

I. En banc rehearing is unnecessary because the panel's decision was 
        correctly decided
    There is no good reason for the full court to rehear a case that 
the panel decided correctly. Especially in light of the discretionary 
nature of a court of appeals' decision to rehear a case en banc, this 
threshold for en banc review is so compelling and so obvious that it is 
only rarely stated. See Eisen v. Carlisle & Jacquelin, 479 F.2d 1005, 
1022 (Oakes, J., dissenting from denial of rehearing en banc) (``if one 
agrees fully with the panel decision one does not generally vote to 
hear it en banc''). After all, the purpose of rehearing is to allow the 
full court to develop subsequent law without being bound by a panel 
decision that a majority of the full court believes to be incorrect. 
See generally Arnold v. Eastern Airlines, 712 F.2d 899, 912 (411 Cir. 
1983), cert. denied, 464 U.S. 1040 (1984) (Widener, J., dissenting from 
grant of en banc).
    The question in this case is whether Miranda governs the 
admissibility of confessions in federal court, or whether Section 3501 
does so. That question, in turn, depends on whether Miranda's 
exclusionary rule is, or is not, required by the Constitution.
    In an exhaustive and comprehensive opinion, the panel correctly 
concluded that Miranda's exclusionary rule is not constitutionally 
compelled and that Section 3501 accordingly governs. This is most 
clearly demonstrated by a trio of Supreme Court decisions cited in the 
panel decision as well as in WLF's brief on the merits. In Harris v. 
New York, 401 U.S. 222, 224 (1971), and Oregon v. Hass, 420 U.S. 714, 
722 (1975), the Court held that statements taken in violation of 
Miranda could be admitted into evidence to impeach the testimony of a 
defendant who took the stand at his own trial. And in New York v. 
Quarles, 467 U.S. 649, 654 (1984), the Court ruled that a confession 
obtained as a result of a police question ``Where's the gun?,'' asked 
of a person in police custody, was admissible in the prosecution's case 
in chief despite the failure to give Miranda warnings.\2\
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    \2\ Dickerson's petition does not cite, let alone discuss, any of 
these cases. The Department also avoids Harris or Hass, and only cites 
Quarles parenthetically. Br. of U.S. at 9.
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    These cases rule out any possibility that Miranda's exclusionary 
rule is mandated by the Constitution. This is not only because that was 
how the Court explained its decision in all these cases. See, e.g., 
Quarles, 467 U.S. at 658 n.7 (``absent actual coercion by the officer, 
there is no constitutional imperative requiring the exclusion of the 
evidence that results from police inquiry of this kind.''). It is also 
because the only theory that has ever been offered to explain how 
Miranda's exclusionary rule could be constitutionally required is one 
that posits that any custodial confession obtained without compliance 
with Miranda must have been obtained by ``compelling'' the defendant to 
give it; and that therefore, introduction into evidence of such a 
confession violates the Fifth Amendment which forbids any person from 
being ``compelled in any criminal case to be a witness against 
himself.'' See generally Miranda, 384 U.S. at 467-469.
    But in Quarles, Harris, and Hass, the Miranda rules were not 
complied with, yet the defendant's self-incriminating statements, given 
while he was in custody, were nevertheless held admissible. Therefore, 
even apart from the Supreme Court's oft-repeated statements that 
Miranda rules are only prophylactic and not a component of the 
Constitution, it simply cannot be the case that obedience to Miranda is 
a constitutional prerequisite for such a statement to be rendered 
voluntary, and hence admissible. As the panel correctly noted, 
statements taken in violation of the Fifth Amendment's prohibition on 
compelled testimony cannot be admitted into evidence for any purpose. 
166 F.3d at 689, citing Mincey v. Arizona, 437 U.S. 385, 401-02 (1978). 
That the statements were admitted in Harris, Hass, and Quarles despite 
failure to comply with the measures set out in Miranda must surely mean 
that Miranda's exclusionary rule is not required by the Fifth 
Amendment. Congress therefore acted within its authority in superseding 
Miranda's exclusionary rule when it adopted Section 3501. See United 
States v. Crocker, 510 F.2d 1129, 1136-38 (10th Cir. 1975) (alternative 
holding that confession was admissible under Section 3501); United 
States v. Rivas-Lopez, 988 F. Supp. 1424 (D. Utah 1997).
    As noted, the Department and Dickerson avoid discussing these 
Supreme Court cases, and instead maintain that the Supreme Court's 
continued application of Miranda's exclusionary rule to the States 
admits of one and only one conclusion: that the Court must view it as 
required by the Constitution.\3\
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    \3\ The Department maintains that the Supreme Court regards its 
Miranda rulings in state cases as ``implementing and effectuating 
constitutional rights'' (Br. of U.S. at 12), and that the Miranda rules 
are based on ``constitutional premises'' (id. at 6); ``rest[s] on a 
constitutional foundation'' (id. at 7-8); or has ``constitutional 
footings'' (id. at 11) or ``moorings'' (id. at 12). These phrases have 
no fixed meaning and are of little assistance in answering the question 
actually at issue: whether Miranda's exclusionary rule can be modified 
by Congress.
    But even the Department's constitutional characterization of 
Miranda suggest that Miranda's exclusionary rule is subject to 
legislative modification. Under our constitutional system of 
government, ordinary legislation that Congress enacts generally has, 
and indeed it has to have, ``constitutional moorings'' or ``footings.'' 
One legitimate purpose of such ordinary congressional legislation is to 
``implement and effectuate constitutional rights,'' for example, by 
creating remedies for their violation. See 42 U.S.C. Sec. 1983; Voting 
Rights Act of 1965, upheld in South Carolina v. Katzenbach, 383 U.S. 
301 (1966). But the fact that legislation has ``constitutional 
footings'', or is designed to ``implement constitutional rights,'' 
certainly does not prevent Congress from modifying it, because 
legislation may be constitutionally based without being 
constitutionally required. So, too, Miranda's exclusionary rule.
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    It is true that, as the panel recognized, the basis for Miranda's 
applicability to the States (an issue obviously not presented in this 
federal case) presents ``an interesting academic question.'' 166 F.3d 
at 691, n.21. The panel's view was shared by the Department's most 
detailed analysis of Miranda--a 120-page report that fully supports the 
validity of Section 3501. As the report observed: ``Miranda's continued 
application in state proceedings has a decidedly mysterious character * 
* *. U.S. Dep't of Justice, Office of Legal Policy, Report to the 
Attorney General on the Law of Pre-Trial Interrogation 104 (1986), 
reprinted in 22 U. Mich. J.L. Ref. 437, 550. But to say that the only 
possible solution to that mystery is that Miranda's exclusionary rule 
is constitutionally required, however, is to suggest that the Supreme 
Court does not know what it is talking about when it has repeatedly 
denied that this is so. See 166 F.3d at 689-91 (discussing cases). But 
beyond that, Dickerson's and the Department's reasoning also leads to 
the conclusion that in the many instances in which the Supreme Court 
and this Court have issued holdings that openly and explicitly depend 
on Miranda's non-constitutional status, those cases cannot be squared 
with Miranda and would have to be overruled.\4\
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    \4\ It would also raise questions about all the cases in which the 
Department has urged the Supreme Court to apply Section 3501 in other 
contexts not involving whether it supersedes Miranda. For example, the 
Department successfully urged the Court not to suppress a confession 
under 18 U.S.C. Sec. 3501(c) (six hour safe harbor provision), in the 
course of which it noted that Section 3501(a) ``requires the 
admission'' of voluntary statements. See Br. for the U.S. at passim, 
United States v. Alvarez-Sanchez, No. 92-1812, 511 U.S. 350 (1994). At 
no point did the Department advise the Supreme Court that any part of 
the statute was unconstitutional, nor did it address the complex 
severability issues that would arise from invalidating the most 
important provision in it. In another case, the Department invoked 
Section 3501 to admit a statement into evidence, albeit not over a 
Miranda objection. Br. for the United States at 17-23, United States v. 
Jacobs, No. 76-1193, cert. dismissed as improvidently granted, 436 U.S. 
31 (1978). Here again, the Department did not appraise the Court of any 
constitutional infirmities of the statute.
    Additionally, it would eviscerate the basis for the holdings in 
many other circuit courts that mere Miranda violations during the 
questioning of a defendant in custody do not give rise to liability 
under 42 U.S.C. Sec. 1983 because they are not violations of the 
Constitution, see, e.g., DeShawn v. Safir, 156 F.3d 340, 346 (2d Cir. 
1998); Clay v. Brown, 1998 U.S. App. Lexis 17115, reported in table 
format, 151 F.3d 1032 (7th Cir.); Winsett v. Washington, 130 F.3d 269, 
274 (7th Cir. 1997); Mahan v. Plymouth County House of Corrections, 64 
F.3d 14, 17 (1st Cir. 1995); Giuffre v. Bissell, 31 F3d 1241, 1256 (3d 
Cir. 1994); Warren v. City of Lincoln, 864 F.2d 1436, 1441-42 (8th Cir. 
en banc), cert. denied, 490 U.S. 1091 (1989); Lucero v. Gunter, 17 F.3d 
1347, 135-51 (10th Cir. 1994); Bennett v. Passic, 545 F.2d 1260, 1263 
(10th Cir. 1976), thereby creating potential federal litigation every 
time a suspect in custody is questioned.
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    Although we do not believe that this Court needs to solve this 
``mystery'' of Miranda's application to the states in order to conclude 
that the panel decision was correct, we can posit several possible 
theories that do not require the conclusion that either Miranda itself 
was wrongly decided or that these later cases were.
    First, like Mapp v. Ohio, 367 U.S. 643 (1961) and Bivens v. Six 
Unknown Named Agents, 403 U.S. 388 (1971), Miranda may be a 
``constitutional common law'' decision. See Henry P. Monaghan, 
Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975); see 
also Br. for the United States, City of Boerne v. Flores, No.95-2074 
(1996) (suggesting something akin to this theory).\5\ In such cases, 
where the Court is presented with an issue implicating a constitutional 
right for whose violation there is no legislatively specified remedy, 
many believe that the Court may take it upon itself to devise one, and 
that the remedy it devises may extend beyond simply redressing the 
constitutional violation. Under this theory, however, it is also proper 
for Congress to step in later and substitute an alternative remedy that 
sweeps more or less broadly, provided the substitute remedy is adequate 
to correct any underlying constitutional violation. See Bush v. Lucas, 
462 U.S. 367, 377 (1983); see also panel opinion, 166 F.3d at 691 
(discussing Palermo v. United States, 360 U.S. 343, 345-48 (1959) and 
other cases). It is also possible that the States may do so as well.
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    \5\ The Supreme Court ruled against the constitutionality of the 
Religious Freedom Restoration Act, the statute at issue in Boerne, 521 
U.S. 507 (1997), but not because it rejected Congressional power to 
modify a non-constitutionally mandated remedy established by the Court. 
Rather, it concluded that Congress's powers under section 5 of the 
Fourteenth Amendment were limited to defining appropriate remedies for 
violations of rights established in the Constitution, and that Congress 
could not change the scope of the rights themselves. Id.
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    This theory is consistent with the suggestion made by the Miranda 
Court itself that the national and State legislatures may substitute 
alternative remedial schemes for the one set out in Miranda, see 
Miranda, 384 U.S. at 467--a suggestion that has not been addressed in 
any of the Court's post-Miranda cases because none of them has involved 
instances where the Congress or a State has sought to avail itself of 
this option. Thus, the continued application of Miranda to the States 
may represent no more than the application of the Court's judicially-
created, but not constitutionally mandated, remedial scheme in the 
absence of a legislatively devised alternative.\6\
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    \6\ The Department essentially ignores this possibility, although 
it briefly argues that Section 3501 cannot be defended as a proper 
acceptance of Miranda's invitation to the Congress to devise 
alternatives equally effective in protecting a suspect's Fifth 
Amendment rights because it ``do[es] not require that suspects be 
informed of their rights'' but simply ``relegated warnings to their-
pre-Miranda status as but one of several non-exclusive factors to be 
considered in determining voluntariness.'' Br. of U.S. at 7. In fact, 
as the panel noted, by requiring a court determining voluntariness to 
consider several of the Miranda factors, as well as some additional 
ones not mentioned in Miranda, Section 3501 does more than simply 
restore the pre-Miranda voluntariness test. By listing the warnings as 
factors for the court to consider, the statute creates significant 
incentives for officers to give them, since doing so will, ultimately, 
help secure the admission into evidence of whatever information the 
suspect provides. 166 F.3d at 692.
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    Miranda's exclusionary rule, of course, operates in much the same 
way: it, too, is an incentivizing device rather than a constitutional 
mandate per se. Both thus use as their jumping-off point the 
prohibition on compelled self-incrimination at trial to try to protect 
suspects from compulsion in the course of interrogation. It is 
difficult to argue (and the Miranda Court did not argue) that the Fifth 
Amendment itself actually requires either: all that it would appear to 
do is bar the admission of any statement obtained through compulsion at 
trial. Therefore, it is difficult to see how Congress's preference for 
the incentives it established over the incentives Miranda created 
through its exclusionary rule could be a constitutionally inadequate 
means for enforcing the Fifth Amendment.
    How well each of these incentivizing devices will work is obviously 
a prudential judgment that the legislature is far better positioned to 
make than the courts. But like the panel, we would expect that the 
incentive Section 3501 creates for giving the warnings will be 
sufficient to result in their being given in much the same fashion and 
regularity as they are today. For as the panel explained, ``federal 
courts rarely find confessions obtained in technical compliance with 
Miranda to be involuntary under the Fifth Amendment,'' and therefore, 
``providing the four Miranda warnings is still the best way to 
guarantee a finding of voluntariness.'' 166 F.3d at 692. On the other 
hand, use of Section 3501 rather than Miranda to determine the 
admissibility of confessions will avoid problems like the one this case 
otherwise presents, where for no good reason whatsoever, Dickerson's 
unquestionably voluntary incriminating statements may be excluded at 
trial simply because of the way the government presented its belated 
evidence showing that indeed, Dickerson was Mirandized before making 
them.
    Second, the Miranda Court does not appear to have focused on the 
question whether the federal courts have supervisory power over the 
States. It was, after all, addressing other questions. Since Miranda 
was handed down, we are aware of no case where a party has seriously 
presented to the Court the question whether Miranda's prophylactic 
approach can be reconciled with the Court's post-Miranda cases such as 
Smith v. Phillips, 455 U.S. 209, 221 (1982) and Doyle v. Ohio, 426 U.S. 
610, 618 n.8 (1976), holding that the federal courts lack supervisory 
power over the States. The Justice Department report on Section 3501 
concluded with respect to this point that ``[t]here is no real 
explanation for the persistence of Miranda in light of these 
considerations aside from the fact that the Supreme Court has not yet 
faced up to them.'' Report to the Attorney General on the Law of 
Pretrial Interrogation, supra, at 80.
    Whatever the answer to this question, however, the solution cannot 
be that Miranda's exclusionary rule is constitutionally required, 
since, as already discussed, the Supreme Court in Harris, Hass, and 
Quarles, allowed the admission into evidence of confessions not 
satisfying the procedures laid out in Miranda. In addition, of course, 
and as the panel noted, in numerous state and federal cases, the 
Supreme Court has repeatedly and pointedly continued to state that 
Miranda's procedural regimen, and its exclusionary rule in particular, 
are prophylactic and not constitutional requirements.\7\ Thus, the 
Department's position boils down to a claim that it knows better than 
the Supreme Court the true meaning of the Court's own holdings. We 
respectfully submit that, to the contrary, after more than a dozen 
statements over many years asserting Miranda's non-constitutional 
status, the Court simply has to be taken at its word, ``no matter how 
misguided (others] may think it to be.'' Hutto v. Davis, 454 U.S. 370, 
374 (1982) (reversing 646 F.2d 123 (4th Cir. 1981) (en banc).
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    \7\ See Davis v. United States, 512 U.S. 452, 457-58 (1994) 
(referring to Miranda warnings as ``a series of recommended procedural 
safeguards''); Withrow v. Williams, 507 U.S. 680, 690-91 (1993) 
(acknowledging that ``Miranda's safeguards are not constitutional in 
character''); Duckworth v. Eacran, 492 U.S. 195, 203 (1989) (noting 
that the Miranda warnings are not required by the Constitution); 
Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (noting that ``the 
Miranda Court adopted prophylactic rules designed to insulate the 
exercise of Fifth Amendment rights''); Moran v. Burbine, 475 U.S. 412, 
42 (1986) (``As is now well established, ``[the] * * * Miranda warnings 
are 'not themselves rights protected by the Constitution but [are] 
instead measures to insure that the [suspect's] right against 
compulsory self-incrimination (is] protected.''' (quoting Quarles 
quoting Tucker); Oregon v. Elstad, 470 U.S. 298, 306 (1985) (noting 
that the Miranda exclusionary rule ``may be triggered even in the 
absence of a Fifth Amendment violation''); Edwards v. Arizona, 451 U.S. 
477, 492 (1981) (Powell, J., concurring) (noting that the Court in 
Miranda ``imposed a general prophylactic rule that is not manifestly 
required by anything in the text of the Constitution ''); Michigan v. 
Tucker, 417 U.S. 433, 444 (1974) Miranda warnings are ``not themselves 
rights protected by the Constitution'').
    Indeed, the Department of Justice filed briefs in many of these 
cases and others arguing the very rationale the panel in this case 
adopted, namely, that Miranda was not constitutionally required. See, 
e.g., Briefs for the United States filed in City of Boerne v. Flores, 
No. 95-2074; Withrow v. Williams No. 91-1030; United States v. Green, 
No. 91-1521; Minnick v. Mississippi, No. 89-6332; Michigan v. Harvey, 
No. 88-512; New York v. Quarles, No. 82-1213. We are aware of no case 
argued in the past nineteen Supreme Court terms (which is as far back 
as the Lexis data base containing Supreme Court briefs goes) where the 
Department has taken the position in the Supreme Court that the Miranda 
procedures are constitutionally required.
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    Finally, we note that adoption of the view that Miranda is 
constitutionally compelled--the central proposition the Department and 
Dickerson advance and that the panel rejected is at odds with the 
holdings of other cases that are part of the law of this circuit, and 
at odds with arguments the Department of Justice itself has made to 
this Court that have helped it to develop that law. How can it be 
squared, for example, with United States v. Elie, 111 F.3d 1135 (4th 
Cir. 1997), where this Court concluded that ``[i]t is well established 
that the failure to deliver Miranda warnings is not itself a 
constitutional violation''? Id. at 1142 (emphasis added). ``As a 
result,'' this Court added, ``errors made by law enforcement officers 
in administering the prophylactic Miranda procedures are treated 
differently from errors that violate a constitutional right like the 
Fourth or Fifth Amendment.'' Id. at 1142 n.9. This ruling, it is worth 
noting, came at the invitation of the Department, which asked the Court 
to distinguish between ``a technical violation of Miranda--as opposed 
to a Fifth Amendment violation.'' Reply Br. for the U.S. at 6, United 
States v. Elie, No. 96-4638 (4th Cir. 1996).
    Elie is not the only circuit precedent in jeopardy if Miranda were 
now suddenly discovered to be constitutionally required. In Correll v. 
Thompson, 63 F.3d 1279, 1290 (4th Cir. 1995), this Court concluded that 
``a breach of the rule established in Edwards is also a technical 
violation of Miranda, not a Fifth Amendment violation,'' and therefore 
refused to suppress a second confession that was derivative of an 
earlier confession obtained in violation of Miranda.\8\
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    \8\ It would also throw into serious doubt cases applying Section 
3501 in other contexts, where this Court has routinely relied on the 
statute at the Department's urging. In none of these cases, so far as 
we are aware, has the Department suggested to this Court that applying 
the statute would raise constitutional problems. See, e.g. United 
States v. Braxton, 112 F.3d 777, 784 & n. (4th Cir. 1997) (en banc); 
United States v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990); United 
States v. Pelton, 835 F.2d 1067, 1074 (4th Cir. 1987), cert. denied, 
468 U.S. 1010 (1988); United States v. Peoples, 748 F.2d 934, 936 (4th 
Cir. 1984).
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    For all these reasons, the panel's decision was correct and should 
stand.
II. Rehearing en banc is not appropriate where the effect will be to 
        delay or preclude Supreme Court review of this important 
        question and thereby allow the Department of Justice to 
        continue to refuse to enforce an Act of Congress
    The question that both Dickerson and the Department of Justice are 
asking the Court to rehear en banc is whether Section 3501 or Miranda 
governs the admissibility of confessions in federal court. This 
question admits of one of two answers: either Section 3501 governs or 
Miranda governs. The Department of Justice, however, tries to suggest a 
third answer: that Section 3501 may govern, but that this ``lower 
court'' is not free to apply it. The Department acknowledges that there 
is language in an entire line of Supreme Court opinions ``that might be 
read to support'' the constitutionality of Section 3501. Br. of the 
U.S. at 9. The Department, however, asks the Court to rely instead on 
what it describes as an ``equally well-established line of Supreme 
Court cases'' purportedly viewing Miranda as a constitutional right. 
Id. (emphasis added).\9\ According to the Department, these cases are 
binding on the ``lower courts,'' but apparently not necessarily on the 
Supreme Court. Id. at 12. At bottom, then, the Department is asking the 
court to rehear this question in order to apply different law than the 
panel did, even though the Department acknowledges that the law it is 
asking this Court to apply may, in fact, be incorrect, and the 
Department itself may, or may not, take that position at the next step 
down the road.
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    \9\ These views of the Justice Department regarding Section 3501 
merely repeat its views fully presented to this Court in United States 
v. Leong, 116 F.3d 1474 (4th Cir. 1997) (unpublished) which, in turn, 
were specifically referenced in the Department's Dickerson brief on the 
merits. Thus, with all due respect to the dissent in this case, the 
majority did not reach the issue based only on ``two pages'' of a brief 
by amicus Washington Legal Foundation. 166 F.3d at 697 (Michael, J., 
dissenting). Moreover, the Foundation's Dickerson brief was 14 pages in 
length, much of which, to be sure, addressed the unique procedural 
posture of the case rather than Section 3501; but the Dickerson Court 
was expressly made aware of, and had available to it, the Foundation's 
voluminous briefs on Section 3501 filed in both Leong and United States 
v. Sullivan, 138 F.3d 126 (4th Cir. 1998), the predecessor cases to 
Dickerson. See WLF's Dickerson Br. at 12, n.3. While Dickerson did not 
brief Section 3501 in this Court, he had ample opportunity to address 
it in his brief as appellee, and/or in oral argument, and he could have 
sought permission to file a supplemental, post-argument brief once he 
saw the extent of the panel's interest in the issue. In any event, 
Dickerson's position, as now presented in his petition, simply mirrors 
the views of the Department that were already presented to the panel.
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    These circumstances hardly present a compelling case for the court 
to invest the time and resources needed for en banc review simply to 
indulge the Department's determination to play coy. If this Court 
grants the rehearing petition, two outcomes are possible. First, the 
Court may conclude that the panel decided the question correctly. 
Dickerson would then almost certainly petition for certiorari and the 
question is of sufficient importance that certiorari is likely to be 
granted. See Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, 
J., concurring) (promising to decide the Section 3501 issue ``when a 
case that comes within the terms of this statute is next presented to 
us''). Under these circumstances, we submit that this Court should 
exercise its discretion and refuse en banc review because the issues 
``are of such extraordinary importance that we are confident the 
Supreme Court will accept these matters under its certiorari 
jurisdiction.'' Green v. Santa Fe Industries, 533 F.2d 1309, 1310 (2d 
Cir. 1976), judgment on the merits reversed, 430 U.S. 462 (1977).
    Second, the en banc Court may decide that the panel was wrong, that 
Section 3501 is unconstitutional, and that Miranda governs the 
admissibility of Dickerson's confession. In that case, the matter will 
almost certainly be left there. The only party with standing to seek 
further review would be the Department of Justice. But the Department's 
determined efforts since Davis to keep Section 3501 arguments out of 
cases presenting Miranda questions, well chronicled in the panel 
opinion, see 166 F.3d at 681, provide every reason to believe that the 
last thing the Department actually wants is for a case presenting this 
question to reach the Supreme Court.\10\ Even if this were not so, it 
is difficult to imagine that the Department, having asked this Court to 
reverse itself, would then turn around and ask the Supreme Court to 
reverse this Court for doing what the Department had asked. Because no 
review in the Supreme Court would be sought, Section 3501--a statute 
that the High Court has twice described as the ``governing'' law on the 
question of federal confessions, Davis v. United States, 512 U.S. 452, 
457, n.* (1995), quoting United States v. Alvarez-Sanchez, 511 U.S. 
350, 351 (1994)--would have been effectively nullified by the executive 
branch.
---------------------------------------------------------------------------
    \10\ Despite the Department's assertions that its position here is 
dictated by special considerations that prevent it from defending this 
Act of Congress before the ``lower federal courts'', and that these 
considerations may not apply in the Supreme Court, it has never taken 
any of the steps that would ordinarily be taken by a party interested 
in preserving for Supreme Court review a question it believes only that 
Court can reach. Thus, neither in its brief on appeal nor in its 
rehearing brief does the Department say, for example, that it believes 
that Section 3501 governs the admissibility of Dickerson's confession 
and that, although it cannot so argue to this Court, it wishes to 
preserve the question for possible future consideration by the Supreme 
Court. Rather, the Department simply urges this Court not to apply 
Section 3501. When pressed by the Senate Judiciary Committee on how a 
case raising Section 3501 would ever reach the Supreme Court if the 
Department refused to raise the issue in the lower courts, the Attorney 
General and Deputy Attorney General simply gave no answer to the 
question. Senate Judiciary Committee Oversight Hearings, July 15, 1998. 
After taking almost eight months to answer written questions on this 
point, the Attorney General finally responded on March 11, 1999: ``Some 
courts have raised Section 3501 sua sponte. It is therefore possible 
that such a case could reach the Supreme Court.'' But the Department 
gave no indication that it would be prepared to bring such a case if it 
were on the losing side of a Section 3501 argument.
---------------------------------------------------------------------------
    It has long been established that the executive branch's charge to 
execute the law does not carry with it the power not to execute it. 
Kendall v. United States, 37 U.S. 524, 612 (1838) (concluding that such 
a power would allow the Executive ``entirely to control the legislation 
of Congress, and paralyze the administration of justice''). Yet not 
executing the law is precisely what the executive branch is now doing 
in the case of Section 3501. See Davis v. United States, 512 U.S. 452, 
462-64 (1994) (Scalia, J., concurring). Its position is all the more 
extraordinary given that the traditional position of the Department of 
Justice is that the Executive Branch has an obligation to defend an Act 
of Congress against constitutional challenge whenever a ``reasonable'' 
argument can be made in its defense, 5 Opinions of the Office of Legal 
Counsel 25, 25-26 (Apr. 6, 1981); see also confirmation hearings of 
Seth Waxman for Solicitor General (pledging to adhere to this 
traditional position) (referred to in March 4, 1999 letter from Senator 
Orrin Hatch, et al., to Attorney General Reno, attached hereto in 
addendum).
    One would have thought that there must at least be ``reasonable'' 
arguments to be made in defense of a statute that has been upheld not 
only by the panel here, but by the Tenth Circuit \11\ and the U.S. 
District Court for the District of Utah \12\ as well; and whose 
constitutionality has been defended by the Department of Justice during 
numerous-administrations,\13\ and by a number of legal scholars.\14\
---------------------------------------------------------------------------
    \11\ United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975).
    \12\ United States v. Rivas-Lopez, 988 F. Supp. 1424 (D. Utah 
1997).
    \13\ The Department has long defended the statute, contrary to the 
suggestion in the dissenting opinion that upholding Section 3501 
``overrides 30 years of Department of Justice prosecutorial policy.'' 
166 F.3d at 695 (Michael, J., dissenting). In the Nixon Administration, 
Attorney General Mitchell issued a directive encouraging U.S. Attorneys 
Offices to use the statute to seek the admission into evidence of 
confessions obtained despite technical defects in the giving of Miranda 
warnings. See 115 Cong. Rec. 23236-38 (1969) (reprinting memorandum). 
This litigation effort resulted in several lower court decisions taking 
no definite position on the statute's constitutionality, and one 
unequivocally sustaining the statute in an alternative holding. See 
United States v. Crocker, 510 F.2d 1129, 1136-38 (10th Cir. 1975). We 
are aware of no record of the Carter Administration's ever revoking the 
Mitchell directive. In the Reagan Administration, the Department of 
Justice's Office of Legal Policy conducted an exhaustive study of 
statute, concluding that it was constitutional. See U.S. Dep't of 
Justice, Office of Legal Policy, Report to the Attorney General on the 
Law of Pre-Trial Interrogation 104 (1986), reprinted in 22 U. Mich. 
J.L. Ref. 437, 550. Following this study, the Attorney General 
instructed the litigating divisions to seek out the best case in which 
to test the statute, and the statute was raised. See, e.g., Br. for the 
United States, United States v. Goudreau, No. 87-5403ND (8th Cir. 1987) 
(arguing confession obtained in violation of Miranda could be admitted 
under Section 3501).
    Even the Clinton Administration defended the statute for some time. 
As Attorney General Reno stated: ``The Department of Justice does not 
have a policy that would preclude it from defending the constitutional 
validity of Section 3501 in an appropriate case. * * * [T]he most 
recent case in which we raised Section 3501 held that the statute did 
not `trump' Supreme Court precedent (see United States v. Cheely, 21 
F.3d 914, 923 (9th Cir. 1994)).'' The Administration of Justice and the 
Enforcement of Laws: Hearing before the Sen. Judiciary Comm., June 27, 
1995, at 91 (written answer of Attorney General Reno to question of 
Senator Hatch).
    \14\ See, e.g., Joseph Grano, Confessions, Truth and the Law 203 
(1993); Paul G. Cassell, Miranda's Social Costs: An Empirical 
Reassessment, 90 Nw. U.L. Rev. 387, 471-72 (1996); Stephen Markman, The 
Fifth Amendment and Custodial Questioning: A Response to 
``Reconsidering Miranda'', 54 U. Chi. L. Rev. 938, 948 (1987); Phillip 
Johnson, A Statutory Replacement for the Miranda Doctrine, 24 Am. Crim. 
L. Rev. 303, 307 n.8 (1987); Gerald Caplan, Questioning Miranda, 38 
Vand. L. Rev. 1417, 1475 (1985).
---------------------------------------------------------------------------
    The dissent in this case suggests that this may all be true,\15\ 
but the Department's refusal to invoke a rule of evidence enacted by 
Congress is the concern not of the courts, but of Congress, which 
should seek to ``prod the executive into changing its policy with 
respect to Sec. 3501.'' 166 F.3d at 697. (Michael, J., dissenting). We 
respectfully disagree. The executive branch's disregard of a 
Congressional enactment is undoubtedly a legitimate concern of Congress 
in its sphere.\16\ But as the panel adequately discussed, 166 F.3d at 
681-83, the Court had ample authority to reach the Section 3501 issue. 
The judiciary is not required to ignore a controlling authority, 
whether a judicial opinion or statute, just because the parties either 
negligently or intentionally failed to raise it.
---------------------------------------------------------------------------
    \15\ Judge Michael dissented on the grounds that the Court should 
not have reached the Section 3501 issue. He reached no conclusion about 
the constitutionality of section 3501 (``I don't know whether [Miranda 
is a constitutional rule] or not''), the issue for which the Department 
supports rehearing en banc. 166 F.3d at 697.
    \16\ Congress has by no means been silent on this issue. The 
Chairman and other members of the Senate Judiciary Committee in 
particular have raised this issue over the last few years with the 
Attorney General in three oversight hearings; with then-Solicitor 
General Drew Days at an oversight hearing; and at the confirmation 
hearings of Deputy Attorney General Eric Holder, Solicitor General Seth 
Waxman, and Assistant Attorney General James Robinson. In each of these 
instances, the response from all these officials to questions about the 
Department's failure to raise the provision was that they were looking 
for the ``appropriate case'' in which to urge it.
    However, after this Court issued its order directing the Department 
to state its position on the statute in United States v. Leong, the 
Department explained that, in fact, there could be no such 
``appropriate case'' that might arise in one of the ``lower federal 
courts,'' although there might be one in the Supreme Court. There has 
been one oversight hearing since that time, at which Judiciary 
Committee Members sought without success to find out how in that case 
the question would ever be presented to the Supreme Court. 
Additionally, soon after Dickerson filed his rehearing petition in this 
case, the Chairman and eight members of the Senate Judiciary Committee 
took the unusual step of writing a letter to the Attorney General, 
expressing their concerns and seeking ``a commitment from you-to defend 
the constitutionality of this Act of Congress before both the lower 
federal courts and the Supreme Court.'' Chairman Orrin G. Hatch and 
eight members of the Senate Judiciary Committee to Atty. Gen. Janet 
Reno at 2 (Mar. 4, 1999) (attached hereto in addendum). Her response 
was the filing of the brief urging reversal of the panel opinion on 
Section 3501.
---------------------------------------------------------------------------
    We also submit that at this stage of the legal proceedings, it is 
entirely appropriate for the judiciary to take into consideration when 
making a discretionary decision as whether to grant en banc review, 
whether by doing so it will be facilitating the executive branch's 
continued disregard of its duty to carry out a Congressional statute.
    Finally, the Court should consider societal interests in the 
enforcement of Section 3501 beyond these important institutional 
considerations. Every day, our nation's citizens fall prey to serious 
criminal offenses. More than a few of those crimes cases will involve 
criminals who, when apprehended, will voluntarily confess to their 
crimes under circumstances in which their attorneys can raise technical 
questions of Miranda compliance. To allow the Department to continue 
its unilateral policy of non-enforcement of Section 3501 while the case 
is being reheard could lead to ``the acquittal and the nonprosecution 
of many dangerous felons, enabling them to continue their depredations 
upon our citizens. There is no excuse for this.'' Davis v. United 
States, 512 U.S. 452, 465 (1994) (Scalia, J., concurring) . If the 
petition for rehearing is denied, the excuses will begin to end.

                               Conclusion

    For the foregoing reasons, the petition for rehearing should be 
denied.
            Respectfully submitted,
                                        
Daniel J. Popeo,                    Paul G. Cassell,
Paul D. Kamenar,                    (Counsel of Record)
Washington Legal Foundation.        University of Utah.
                                      
                                    Counsel for Amicus Curiae

Date: March 20, 1999.
                               __________
                   U.S. Senate, Committee on the Judiciary,
                                     Washington, DC, March 4, 1999.
The Hon. Janet Reno,
Attorney General of the United States,
U.S. Department of Justice, Washington, DC.
    Dear Attorney General Reno: As members of the Senate Judiciary 
Committee, we bring to your attention the case of United States v. 
Dickerson, No. 97-4750, (4th Cir. 1999). In Dickerson, the court 
thoroughly addressed and upheld the constitutionality of 18 U.S.C. 
Sec. 3501. As you know, this statute provides that in a federal 
prosecution, ``a confession * * * shall be admissible evidence if it is 
voluntarily given.'' In a September 10, 1997 letter, you notified 
Congress that the Department of Justice would neither urge the 
application nor defend the constitutionality of 18 U.S.C. Sec. 3501 in 
the lower federal; courts. Given the United States v. Dickerson rejects 
your legal position and upholds the constitutionality of the statute, 
we would like a commitment from you faithfully to execute this federal 
law.
    The facts in Dickerson  are disturbing: On January 27, 1997, 
Charles Dickerson confessed to robbing a series of banks in Maryland 
and Virginia. After being indicted for armed robbery, Dickerson moved 
to suppress his confession. The U.S. District Court specifically found 
that Dickerson's confession was voluntary under the Fifth Amendment, 
but it nevertheless suppressed the confession because of a technical 
violation of the Miranda warnings. In ruling on the admissibility of 
Dickerson's confession, however, the district court failed to consider 
18 U.S.C. Sec. 3501.
    Despite the fact that Dickerson voluntarily confessed to a series 
of armed bank robberies, the Department of Justice prohibited the U.S. 
Attorney's office from arguing 18 U.S.C. Sec. 3501 in its appeal of the 
suppression order. Unfortunately, the Department's refusal to apply 
this law is not an isolated event. As the court in Dickerson noted, 
``over the last several years, the Department of Justice has not only 
failed to invoke 3501, it has affirmatively impeded its enforcement.'' 
In numerous cases the Clinton Administration has adamantly refused to 
utilize this statute to admit voluntary confessions into evidence. See 
Davis v. United States, 512 U.S. 452 (1994); Cheely v. United States, 
21 F.3d 914 (9th Cir. 1994); United States v. Sullivan, 138 F.3d 126 
(4th Cir. 1998); United States v. Leong, No. 96-4876 (4th Cir. 1997); 
United States v. Rivas-Lopez, 988 F. Supp. 1424 (D. Utah 1997).
    As the Dickerson court noted, ``[w]ithout his confession it is 
possible, if not probable, that [Dickerson] will be acquitted. Despite 
that fact, the Department of Justice, elevating politics over law, 
prohibited the U.S. Attorney's office from arguing that Dickerson's 
confession is admissible under the mandate of 3501.'' Needless to say, 
we find this criticism of the Department of Justice from a federal 
court of appeals deeply troubling.
    Many in Congress have long believed that the current Justice 
Department's position on the constitutionality of 18 U.S.C. Sec. 3501 
is suspect and would be so proven in court. The Dickerson court, after 
an exhaustive examination, rejected the Department's position and ruled 
that 18 U.S.C. Sec. 3501 is ``clearly'' constitutional. The court 
stated: ``We have little difficulty concluding, therefore, that 3501, 
enacted at the invitation of the Supreme Court and pursuant to 
Congress's unquestioned power to establish the rules of procedure and 
evidence in the federal courts, is constitutional.'' The other courts 
that have directly addressed Sec. 3501 have also rejected your 
conclusion and upheld the constitutionality of the statute. See United 
States v. Crocker, 510 F.2d 1129, 1137 (10th Cir. 1975); United States 
v. Rivas-Lopez, 988 F. Supp. 1424, 1430-36 (D. Utah 1997). In addition, 
every court to which you have presented the other portion of your 
argument--that there is a bar on the lower federal courts applying this 
Act of Congress in cases before them--has also rejected that view. See 
United States v. Dickerson, No. 97-4750 (4th Cir. 1999); United States 
v. Leong, No. 96-4876 (4th Cir. 1997); United States v. Rivas-Lopez, 
988 f. Supp. 1424 (D. Utah 1997).
    We want to emphasize that 18 U.S.C. Sec. 3501 does not replace or 
abolish the Miranda warnings. On the contrary, the statute explicitly 
lists Miranda warnings as factors a district court should consider when 
determining whether a confession was voluntarily given. As the 
Dickerson court recognized, providing the Miranda warnings remains the 
surest way to ensure that a statement is voluntary. As such, we expect 
federal enforcement officials to continue to give Miranda warnings. In 
our view, the promise of 18 U.S.C. Sec. 3501 is that it retains every 
incentive to give Miranda warnings but does not require the rigid and 
unnecessary exclusion of a voluntary statement.
    In his 1997 confirmation hearing, Solicitor General Seth Waxman 
pledged ``to defend the constitutionality of Acts of Congress whenever 
reasonable arguments are available for that purpose * * * The Dickerson 
decision demonstrates beyond doubt that there are reasonable 
arguments'' to defend 18 U.S.C. Sec. 3501. In fact, these arguments are 
so reasonable that they have prevailed in every court that has directly 
addressed their merits.
    Given that United States v. Dickerson upholds the constitutionality 
of this statute, we believe that the time has come for the Department 
of Justice faithfully to execute this federal law. This commitment 
entails seeking the admission in federal court of any voluntary 
statement that is admissible under Sec. 3501 even if it is in technical 
violation of Miranda. In addition, we also seek and expect a commitment 
from you to defend the constitutionality of this Act of Congress before 
both the lower federal courts and the Supreme Court.
    Accordingly, we look forward to hearing from you by March 15 
concerning:

          (1) What position the Department of Justice will take in 
        Dickerson should the Fourth Circuit call for a reply to the 
        defendant's petition for rehearing;

          (2) What position the Department of Justice will take in 
        Dickerson should the Fourth Circuit grant rehearing;

          (3) What position the Department of Justice will take in 
        Dickerson should the defendant seek certiorari;

          (4) Whether the Department of Justice will now take the 
        necessary steps to ensure that its attorneys invoke Sec. 3501 
        in cases where it is needed to ensure the admissibility of 
        voluntary statements that may otherwise be found inadmissible.
            Sincerely,
                                        
Jon Kyl                             Orrin Hatch
John Ashcroft                       Strom Thurmond
Bob Smith                           Spencer Abraham
Chuck Grassley                      Jeff Sessions
Mike DeWine

                         CERTIFICATE OF SERVICE

    I HEREBY CERTIFY that two copies of the foregoing brief were served 
by first-class mail, postage pre-paid, this 20th day of March, 1999, to 
the following counsel:

Helen Fahey
Vincent L. Gambale
U.S. Attorneys Office
2100 Jamieson Avenue
Alexandria, VA 22314

James K. Robinson
Patty Merkamp Stemler
Lisa Simotas
U.S. Department of Justice
Criminal Division-Appellate Section
P.O. Box 899
Benjamin Franklin Station
Washington, D.C. 20044-0899

James W. Hundley
Briglia and Hundley, P.C.
10560 Main Street, Suite 314
Fairfax, VA 22030

Jonathan L. Abram
Hogan and Hartson, L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20044-1109

Deanne E. Maynard
Jenner and Block
601 Thirteenth Street, N.W.
Twelfth Floor
Washington, D.C. 20005

Beth M. Farber
Chief Assistant Federal Public Defender
100 South Charles Street
Tower II, Suite 1100
Baltimore, MD 21201

                                           Paul D. Kamenar,
                                       Washington Legal Foundation.
                               __________

 Prepared Statement of James K. Robinson, Assistant Attorney General, 
                Department of Justice, Criminal Division

    Good afternoon, Mr. Chairman and members of the Subcommittee. I am 
pleased to have the opportunity to present you with our thoughts on 
section 3501 of the Federal criminal code, 18 U.S.C. Sec. 3501 
(``admissibility of confessions '').
    The Self-Incrimination Clause of the Fifth Amendment guarantees 
that no person ``shall be compelled in any criminal case to be a 
witness against himself.'' In 1966 the Supreme Court held in Miranda v. 
Arizona \1\ that no statements made by a suspect during custodial 
interrogation may be admitted in the government's case-in-chief unless 
the police first provide the suspect with four specific warnings--or 
equally effective alternative safeguards. The Miranda warnings are now 
familiar to us all: suspects must be told (1) that they have the right 
to remain silent; (2) that any statements they make can be used against 
them; (3) that they have the right to the presence of an attorney 
during questioning; and (4) that an attorney will be appointed for them 
if they cannot afford one. These warnings were necessary, the Court 
found, because of what it viewed as the ``inherently coercive 
environment of custodial interrogation.'' Thus, the Court held, 
``[u]nless adequate protective devices are employed to dispel the 
compulsion inherent in custodial surroundings, no statement obtained 
from the defendant can truly be the product of his free choice.''
---------------------------------------------------------------------------
    \1\ Miranda v. Arizona, 384 U.S. 436 (1966).
---------------------------------------------------------------------------
    In 1968, in response to the Supreme Court's decision in Miranda, 
Congress enacted Section 3501, which directs federal courts to admit 
into evidence all voluntary confessions, regardless of whether a 
suspect had been first read the Miranda warnings. Under Section 3501, 
the absence of Miranda warnings is one factor that may be considered in 
determining whether a statement is voluntary; but the ultimate 
determination must be made in light of ``all the circumstances 
surrounding the giving of the confession.'' The Senate Report that 
accompanied Section 3501 made clear that Congress intended to overrule 
Miranda. The Report cited with approval Justice Harlan's dissenting 
view that the majority opinion in Miranda ``represents poor 
constitutional law.'' \2\
---------------------------------------------------------------------------
    \2\ S. Rep. No. 1097, 90th Cong., 2d Sess. (1968).
---------------------------------------------------------------------------
    There is no question that Congress has the power to enact a statute 
to change evidentiary rules that the Supreme Court has prescribed for 
federal courts, if the Court's prescribed rules were not based on an 
interpretation of the Constitution. The Supreme Court is, however, the 
final expositor of the Constitution. As the Supreme Court recently 
emphasized in City of Boerne v. Flores,\3\ Congress has no power to 
overrule the Supreme Court's interpretation of the Constitution, even 
when it disagrees with that interpretation, that is, even when it 
concludes that a Supreme Court decision ``represents poor 
constitutional law.''
---------------------------------------------------------------------------
    \3\ City of Boerne v. Fores, 521 U.S. 507 (1997).
---------------------------------------------------------------------------
    Since Section 3501's enactment, there has been substantial debate 
over whether the Supreme Court's Miranda decision is constitutionally 
based. Miranda itself clearly based its holding on the constitutional 
right against self-incrimination. That decision, however, made it clear 
that the warnings were not themselves required by the Constitution; 
rather, the Court said that Miranda warnings are required unless the 
federal government or States provide equally effective means of 
apprising suspects of their rights. In several cases decided after 
Miranda, the Court has reiterated that the Miranda warnings themselves 
are not necessarily a constitutional requirement, and it has also said 
on occasion that a Miranda violation is not necessarily a 
constitutional violation.\4\ But since 1966 the Court has also 
reiterated that Miranda's holding with respect to the admissibility of 
confessions is constitutionally grounded.\5\
---------------------------------------------------------------------------
    \4\ See, e.g., Michigan v. Tucker, 417 U.S. 433 (1974); Davis v. 
United States, 512 U.S. 452 (1994).
    \5\ See, e.g., Illinois v. Perkins, 496 U.S. 292 (1990); Edwards v. 
Arizona, 451 U.S. 477 (1981).
---------------------------------------------------------------------------
    Whatever ambiguity exists in what the Supreme Court has variously 
said in the post-Miranda cases, what the Supreme Court has consistently 
done--and without any ambivalence--has been apply the Miranda holding 
to the admissibility of confessions in a government's case-in-chief in 
cases arising in state courts. That is significant for this reason: 
while the Supreme Court can announce rules that bind the federal 
courts, it can only bind the state courts with rules that are designed 
to implement and protect constitutional rights. The Court's continued 
application of Miranda to the state courts demonstrates that Miranda is 
constitutionally based. There is simply no other basis on which the 
Miranda admissibility holding can be imposed on the States. And if you 
draw the conclusion that Miranda is constitutionally based, you cannot 
avoid the conclusion that Section 3501 is unconstitutional under 
current Supreme Court precedent.
    At this point, I would like to briefly point out something that 
often gets overlooked in the debate over Section 3501: federal 
prosecutors work very hard to preserve the admissibility of confessions 
outside the context of Section 3501. We continually urge that Miranda 
should be limited to its core reasoning, which means that we routinely 
win suppression hearings. And we also frequently get suppression orders 
reversed on appeal--by arguing that a suspect was not in custody, or 
that he was not being interrogated, at the time he made a confession. 
It is an infrequent occurrence that a case is lost on Miranda grounds.
    Because federal prosecutors, with isolated exceptions, have not 
relied on Section 3501 to defeat a motion to suppress based on Miranda, 
until recently no Attorney General ever formally explained in a court 
filing the Department's views on whether Section 3501 could be 
reconciled with the Miranda decision. That changed in 1997, when, in 
United States v. Leong,\6\ a government appeal from an order 
suppressing an unwarned statement, the Fourth Circuit asked the 
Department to address the constitutionality and applicability of 
Section 3501. In response, the Department filed a brief arguing that 
the lower courts may not apply Section 3501 to admit a defendant's 
statement in a case in which Miranda and its progeny would require its 
suppression. Our brief also argued that the Department may not urge the 
lower courts to apply Section 3501, unless and until the Supreme Court 
overrules Miranda. The Department thereafter advised all federal 
prosecutors that they must adhere to this position in the future.
---------------------------------------------------------------------------
    \6\ United States v. Leong, 116 F.3d 1474 (4th Cir. 1997) (Table).
---------------------------------------------------------------------------
    The Fourth Circuit ultimately did not resolve the constitutionality 
of Section 3501 in Leong, holding instead that the failure of the 
district court to apply the statute sua sponte was not plain error. 
This year, however, in United States v. Dickerson,\7\ the Fourth 
Circuit held, in a divided opinion, that Section 3501 is constitutional 
and that it supersedes Miranda as the standard for evaluating the 
admissibility of confessions in federal criminal cases. Like Leong, 
Dickerson was a government appeal in which the Department challenged 
the district court's finding that certain statements had been taken in 
violation of Miranda. The Fourth Circuit upheld the district court's 
finding of a Miranda violation, but nevertheless held that the 
statements were admissible under Section 3501--an argument that the 
government had not pressed in the court of appeals. The Fourth Circuit 
thereafter denied Dickerson's request for en banc review, which we 
joined in part, by a vote of 8 to 5.
---------------------------------------------------------------------------
    \7\ United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999).
---------------------------------------------------------------------------
    We believe that Dickerson was incorrectly decided. Although there 
is language in a number of Supreme Court decisions indicating that the 
Fifth Amendment does not require the exclusion of all statements taken 
in violation of Miranda, the Supreme Court has never overruled Miranda, 
and, in fact, the Court continues to apply that decision to the States. 
As I have already explained, it can do so only if Miranda has 
constitutional underpinnings. Moreover, two years ago, in Agostini v. 
Felton,\8\ the Supreme Court reaffirmed ``that if precedent of this 
Court has direct application in a case, yet appears to rest on reasons 
rejected in some other line of decisions, the Court of Appeals should 
follow the case which directly controls, leaving to this Court the 
prerogative of overruling its decisions.''
---------------------------------------------------------------------------
    \8\ Agostini v. Felton, 521 U.S. 203 (1997).
---------------------------------------------------------------------------
    The Supreme Court may have the opportunity to exercise that 
prerogative next term, as Mr. Dickerson has indicated that he intends 
to file a certiorari petition seeking review of the Fourth Circuit 
decision ordering the admission of his statement under Section 3501. 
Mr. Dickerson's petition is due in late June. Although it is therefore 
likely that Dickerson will provide a vehicle for determining Section 
3501's validity in the Supreme Court, the Department has not yet 
decided what position it will take in that case. It is the established 
practice of the Department to make such a serious determination in 
specific and concrete settings, in which we can take into account the 
particular facts, and the respect accorded to Supreme Court decisions 
under the doctrine of stare decisis. It has been, and continues to be 
the traditional practice of the Department of Justice to defend Acts of 
Congress unless they are plainly unconstitutional under governing 
Supreme Court precedent, or where they impermissibly encroach upon the 
Executive's authority. Where there is a Supreme Court decision that 
interprets or implements the Constitution, however, the question of 
defending a congressional enactment that is inconsistent with that 
decision implicates additional considerations. The duty of the Attorney 
General and the Solicitor General includes upholding the Constitution 
itself. In a case such as this, those officials must carefully weigh 
the practice of defending congressional enactments against the 
obligation to respect the rulings of the Court. If Mr. Dickerson files 
a certiorari petition, we will, of course, provide the Committee with a 
copy of the Department's response as soon as it is filed.
    In the meantime, the Department has advised prosecutors outside the 
Fourth Circuit to adhere to the position set forth in our brief in 
Leong and not to ask the lower courts to invoke Section 3501 to admit, 
in the government's case-in-chief, a confession taken in violation of 
Miranda. In the Fourth Circuit, in contrast, we have instructed federal 
prosecutors to bring the Dickerson decision and Section 3501 to the 
attention of the district courts whenever a Miranda violation is 
alleged.
    Thank you for the opportunity to present our views regarding this 
matter.
                               __________
                                       U.S. Senate,
                                Committee on the Judiciary,
                                   Washington, DC, August 28, 1997.
Hon. Janet Reno,
Attorney General of the United States,
U.S. Department of Justice, Washington, DC.
    Dear Attorney General Reno: For some time now, the undersigned 
members of the Senate Judiciary Committee have been concerned that the 
Department of Justice has been unwilling to enforce, and defend the 
constitutionality of an Act of Congress: namely, 18 U.S.C. Sec. 3501, 
``the statute governing the admissibility of confessions in federal 
prosecutions,'' Davis v. United States, 512 U.S. 452, 457 n.* (1994) 
(citation omitted). In recent years, this issue has arisen in several 
contexts: in the course of litigation in the federal courts 
(specifically, in the Supreme Court, in at least two federal circuit 
courts, and in at least one federal district court); in testimony given 
by several members of the Department before the Senate Judiciary 
Committee; and in the absence of any Section 3501-related directive in 
the U.S. Attorney's Manual.
    It has come to our attention that the United States Court of 
Appeals for the Fourth Circuit, in a case called United States v. 
Leong, No. 96-4876, has ordered the Department of Justice to file a 
brief discussing the effect of 18 U.S.C. Sec. 3501 on the admissibility 
of a statement made by the defendant in that case, as well as any 
relevant constitutional issues arising from the application of Section 
3501. It is our understanding that the position that you adopt in that 
case will affect the position that you will take in another case 
pending in the Tenth Circuit, Nafkha v. United States, scheduled for 
oral argument on September 10, a case on appeal from the District Court 
in Utah, and in a case pending in District Court in Utah, United States 
v. Rivas-Lopez.
    As you know, the Supreme Court's decision in Miranda v. Arizona, 
384 U.S. 436 (1966), long has been, and remains to the present, a 
highly controversial decision. We agree with the Court that involuntary 
confessions should not be used at trial. Where we part company with the 
Court is over its decision to promulgate extraconstitutional procedural 
rules governing the interrogation process as a means of safeguarding 
the Fifth Amendment Privilege Against Self-Incrimination. As we have 
explained below, Congress enacted Section 3501 in order to ensure that 
a violation of the Miranda rules would not automatically lead to 
suppression of a suspect's statements; Section 3501, as so applied, is 
constitutional; you and other senior members of the Justice Department 
assured this Committee that the Department will raise and defend 
Section 3501 in an appropriate case; and this case clearly fits that 
bill.
    We address these points in this letter for two principal reasons. 
The first reason is that this issue is of considerable importance to 
sound federal law enforcement. As you know, a statement obtained in 
violation of the prophylactic, procedural rules promulgated in Miranda 
can be, and ordinarily will be, not only highly probative, but also 
reliable. As a result, the needs of public safety dictate that such 
statements be admitted at trial when they are voluntary, regardless of 
whether the statements were obtained in compliance with the Miranda 
rules. For example, it is our understanding that, without the statement 
at issue in the Leong case, the Department will be required to forego 
prosecution of a felon on the charge of possession of a firearm. In 
fact, we understand that the Department already may have moved to 
dismiss the indictment in Leong.
    The second reason we have addressed this issue is that you and 
other senior Department of Justice officials on several occasions have 
testified before the Senate Committee on the Judiciary that the 
Department will urge the application of, and will defend the 
constitutionality of, Section 3501 in what such officials consistently 
have identified as ``the appropriate case.'' Clearly, the Leong case is 
an ``appropriate'' one: The Fourth Circuit has directed the government 
to brief the issue, and, as discussed below, the statute clearly 
applies to the facts of this case. Under these circumstances, it seems 
to us that the Department should urge the courts to rule that Section 
3501 requires that such voluntary statements be admitted 
notwithstanding any violation of the rules promulgated in Miranda.
    A lengthier explanation follows of why we believe that you should 
endorse that position.
    The text of Section 3501 (see attached) makes clear that Congress, 
exercising its power to adopt rules of evidence for use in the federal 
courts, sought to overrule the automatic rule of exclusion promulgated 
by the Supreme Court in Miranda, barring admission into evidence of a 
confession whenever Miranda's prophylactic requirements were not 
satisfied. Section 3501 replaces that rule with a rule mandating 
admission of any voluntary statement. At the same time, Section 3501 
continues to bar admission of involuntary confessions and to require 
federal courts to consider whether Miranda's prophylactic requirements 
were satisfied in evaluating whether a confession was, in fact, 
voluntarily given. By so doing, the statute eliminates the most 
significant drawback of Miranda's automatic exclusionary rule--viz., 
the result that a voluntary confession will be excluded due to an 
officer's failure to satisfy one of Miranda's requirements--while also 
preserving the most significant contribution of Miranda viz., giving 
federal law enforcement officials an incentive to comply with Miranda's 
judge-made prophylactic rules, since courts must consider compliance 
with those rules in evaluating whether a confession was voluntary and 
hence admissible.
    The evident meaning of the text of Section 3501 is confirmed by its 
legislative history. The Congress repeatedly described Section 3501 as 
an automatic rule of exclusion promulgated by the Supreme Court in 
Miranda. As the Judiciary Committee explained the matter:

        The committee is convinced * * * that the rigid and inflexible 
        requirements of the majority opinion in the Miranda case are 
        unreasonable, unrealistic, and extremely harmful to law 
        enforcement. * * * The unsoundness of the majority opinion was 
        forcefully shown by the four dissenting justices. * * *
        The committee is of the view that the [proposed] legislation 
        would be an effective way of protecting the rights of the 
        individual and would promote efficient enforcement of our 
        criminal laws. By the express provisions of the proposed 
        legislation the trial judge must take into consideration all 
        the surrounding circumstances in determining the issue of 
        voluntariness, including specifically enumerated factors. * * * 
        Whether or not the arrested person was informed of or knew his 
        rights before questioning is but one of the factors. * * *
        * * * No one can predict with any assurance what the Supreme 
        Court might at some future decide if these provisions are 
        enacted. The committee has concluded that this approach * * * 
        is constitutional and that Congress should adopt it. * * * The 
        committee feels that by the time the issue of constitutionality 
        would reach the Supreme Court, the probability * * * is that 
        this legislation would be upheld.

S. Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S. Code 
Cong. & Admin. News 2112, 2123-38. Similarly, the opponents of Section 
3501 entitled their discussion of this provision ``Confessions--The 
Repeal of Miranda'' and noted that ``Section 3501 (a) and (b) are 
squarely in conflict with'' that decision.

    The understanding that Section 3501 would substitute a more 
flexible approach turning on voluntariness for Miranda's rigid 
prophylactic exclusionary rule was repeated throughout the floor debate 
in the Senate by both supporters and opponents of the provision. See 
114 Cong. Rec. 11,611-13 (Senator Thurmond), 11,594 (Senator Morse), 
11,740, 11,891, 11,894, 13,990-91, 14,082 (Senator Tydings), 13,202-03 
(Senator Scott), 14,136 (Senator Fong), 14,158-59 (Senator Hart), 
14,167 (Senator McIntyre). That was likewise the understanding 
reflected in the House debate and among the general public. See Justice 
Department Report, 22 U. Mich. J.L. Ref. at 518-19, and materials cited 
therein.
    The question, then, for the Department of Justice to answer in 
preparing its brief in Leong is not whether the Congress, through 
Section 3501, intended to overturn Miranda's prophylactic evidentiary 
rules; it clearly did. The question is whether the Congress has the 
authority to do so. As explained below, the Congress clearly does.
    We believe that Section 3501 is constitutional. While the Supreme 
Court has not passed on this question directly, we believe that the 
Court would uphold the statute as construed above. On numerous 
occasions, the Supreme Court has described Miranda's rules as 
prophylactic measures that are designed to assist in effectuating the 
Fifth Amendment's prohibition against compelled self-incrimination, but 
that are not required by the Fifth Amendment itself. See, e.g., Davis 
v. United States, 512 U.S. 452, 457-58 (1994); Connecticut v. Barrett, 
479 U.S. 523, 528 (1986); Oregon v. Elstad, 470 U.S. 298, 307 (1985); 
New York v. Quarles, 467 U.S. 649, 654 (1984); New Jersey v. Portash, 
440 U.S. 450 (1979); Oregon v. Hass, 420 U.S. 714 (1975); Michigan v. 
Tucker, 417 U.S. 433, 444-52 (1974); Harris v. New York, 401 U.S. 222 
(1971).
    There is direct authority for the proposition that Section 3501, as 
construed in this letter, is constitutional. The Tenth Circuit is the 
only federal circuit court that, at the behest of the Department of 
Justice, has specifically addressed the constitutionality of Section 
3501. See United States v. Crocker, 510 F.2d 1129 (10th Cir. 1975). In 
that case, the district court applied Section 3501, rather than 
Miranda, and admitted a defendant's statements, on the ground that they 
were voluntary. The principal holding of the court of appeals was that 
the district court acted properly and that the statute is 
constitutional, although the circuit court also ruled in the 
alternative that the statements would be admissible under Miranda. The 
Tenth Circuit's decision in Crocker serves as further evidence that the 
conclusions stated above are reasonable.
    It is not just our conclusion that Congress has the power to enact 
Section 3501. On many past occasions, the Justice Department has argued 
to the Supreme Court that the Miranda rules are not constitutionally 
required.\1\ Indeed, we are aware of no case in which the Department 
has offered a contrary submission to the Supreme Court.
---------------------------------------------------------------------------
    \1\ To our knowledge, the Department filed briefs in at least half 
a dozen cases in the Supreme Court arguing that admission of statements 
obtained in violation of Miranda does not violate the Constitution. 
Withrow v. Williams, No. 91-1030, Brief for the United States as Amicus 
Curiae Supporting Petitioner; United States v. Green, No. 91-1521, 
Brief for the United States; Minnick v. Mississippi, No. 89-6332, Brief 
for the United States as Amicus Curiae Supporting Respondent; Michigan 
v. Harvey, No. 88-512, Brief for the United States as Amicus Curiae 
Supporting Petitioner; Arizona v. Roberson, No. 87-354, Brief for the 
United States as Amicus Curiae Supporting Petitioner; New York v. 
Quarles, No. 82-1213, Brief for the United States as Amicus Curiae 
Supporting Petitioner.
---------------------------------------------------------------------------
    As you informed the committee, ``the Department of Justice does not 
have a policy that would preclude it from defending the constitutional 
validity of section 3501 in an appropriate case.'' Solicitor General 
Days testified similarly during his confirmation hearing. He reiterated 
that ``there is no policy in the Department, and the Attorney General 
has already advised the Committee of that fact, against raising 3501 in 
an appropriate case.'' S. Hrg. 104-818, Solicitor General Oversight, 
Committee on the Judiciary, United States Senate, November 14, 1995, 
31; see also id. at 42. Mr. Days attributed the Department's refusal to 
take a position on it in Davis v. United States and to pursue the issue 
any further in the Ninth Circuit case of United States v. Cheely not to 
doubts about its constitutionality--indeed, he never suggested in the 
course of the hearing that the Department had any such doubts--but, 
instead, to various litigation strategy considerations. He specifically 
stated that the decision not to press the argument in those cases 
``doesn't mean that we won't under other circumstances.'' Since then, 
you reaffirmed that the Department would invoke Section 3501 ``if it's 
right in an appropriate case.''
    Most recently, the then-U.S. Attorney for the District of Columbia 
and Deputy Attorney General nominee, Eric Holder stated that ``[m]y 
experience has been that we have not had significant difficulty in 
getting the federal district court to admit voluntary confessions under 
Miranda and its progeny. However, I would support the use of Section 
3501 in an appropriate circumstance.''
    The only remaining question, then, is whether the Leong case is an 
``appropriate'' case in which to invoke and defend Section 3501. We 
believe that it is. The statute is plainly applicable, since it is 
``the governing law'' on the question before the court whether a 
confession was properly suppressed in a federal prosecution. Moreover, 
the Fourth Circuit has directed the Department to tell the court 
whether Section 3501 requires admission of Leong's confession and 
whether, so applied, the statute is constitutional. The facts of the 
Leong case also indicate that the only basis for excluding the 
defendant's confession would be that it was obtained in violation of 
Miranda. Leong was a passenger in a car that a Park Police officer 
pulled over for speeding. After determining that some of the passengers 
might have been drinking and that all were under 21, the officer asked 
them for permission to search the car, which he was given. When the 
officer found a handgun in a plastic holster on the floor, he told the 
passengers that no one could leave until he learned who owned the gun. 
When no one responded, the officer stated, without first administering 
Miranda warnings, that everyone was ``going to be placed under arrest'' 
until he learned who owned the gun. Leong then stated that the gun was 
his. Under those circumstances, the statement at issue seems to us to 
be voluntary. Finally, there seems to be no other reason for refusing 
to invoke and defend Section 3501 in the Leong case.
          * * * * * * *
    Given the reasons cited, we are hopeful that the Department will 
invoke and defend the constitutionality of Section 3501 as Congress 
intended for it to be read and applied. The undersigned Members do not 
want to see a guilty offender go free due to a technical error if the 
Justice Department easily can prevent such a miscarriage of justice by 
invoking the current written law.
    We would ask you to respond to this letter by close of business 
August 28, and to let us know what position the Department will take in 
the Fourth Circuit.
            Sincerely,
                                   Orrin G. Hatch, Chairman,
                                   Strom Thurmond,
                                   Fred Thompson,
                                   Jon Kyl,
                                   John Ashcroft,
                                   Jeff Sessions.
                                 ______
                                 

                               Attachment

    Congress enacted 18 U.S.C. 3501 as part of Title II of the Omnibus 
Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351. Section 
3501 reads, in part, as follows:

          (a) In any criminal prosecution brought by the United States 
        or by the District of Columbia, a confession, as defined in 
        subsection (e) hereof, shall be admissible in evidence if it is 
        voluntarily given. Before such confession is received in 
        evidence, the trial judge shall, out of the presence of the 
        jury, determine any issue as to voluntariness. If the trial 
        judge determines that the confession was voluntarily made it 
        shall be admitted in evidence and the trial judge shall permit 
        the jury to hear relevant evidence on the issue of 
        voluntariness and shall instruct the jury to give such weight 
        to the confession as the jury feels it deserves under all the 
        circumstances.
          (b) 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.
          * * * * *
          (d) Nothing contained in this section shall bar the admission 
        in evidence of any confession made or given voluntarily by any 
        person to any other person without interrogation by anyone, or 
        at any time at which the person who made or gave such 
        confession was not under arrest or other detention.
          (e) As used in this section, the term ``confession'' means 
        any confession of guilt of any criminal offense or any self-
        incriminating statement made or given orally or in writing.
                               __________
                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                Washington, DC, September 11, 1997.
The Honorable Strom Thurmond,
U.S. Senate, Washington, DC.
    Dear Senator Thurmond: Thank you for your letter to the Attorney 
General, jointly signed with five other members of the Judiciary 
Committee, requesting that the Department urge the Fourth Circuit Court 
of Appeals to apply 18 U.S.C. Sec. 3501 in the case of United States v. 
Leong, which is now pending before that court. As your letter points 
out, the court expressly requested that all of the parties to the Leong 
case file briefs addressing the applicability of this statute. That 
request prompted the Department to undertake a full review of the 
disputed provision. We have now come to the conclusion, in light of the 
Supreme Court's controlling decision in Miranda v. Arizona, 384 U.S. 
436 (1966), and the Court's subsequent decisions applying that 
precedent, that the lower federal courts are not at liberty to apply 
section 3501 in any way that would contravene the rules set forth by 
the Supreme Court in Miranda. Of course, the same considerations would 
not control if the question of section 3501's validity were presented 
to the Supreme Court, since that Court (unlike the lower courts) is 
free to reconsider its prior decisions.
    The reasons for our conclusion about the application of section 
3501 in the lower federal courts are set forth more fully in the brief 
that we filed August 29 with the Fourth Circuit. A copy of that brief 
is enclosed.
    The Department appreciates hearing your views on this legal matter. 
We have sent an identical response to the other Senators who signed 
your letter. Please do not hesitate to contact this office if we can be 
of further assistance on this or any other matter.
            Sincerely yours,
                                   (Signed)  Andrew Fois

                                   (Typed)  Andrew Fois,
                                        Assistant Attorney General.
Enclosure.

    [Editor's note: The enclosure mentioned in this letter was retained 
in Subcommittee files.]
                               __________
                         Criminal Justice Legal Foundation,
                                      Sacramento, CA, May 10, 1999.
Re: Enforcement of 18 U.S.C. Sec. 3501.

Hon. Strom Thurmond, Chairman,
Subcommittee on Criminal Justice Oversight,
Senate Judiciary Committee, Washington, DC.
    Dear Senator Thurmond: We, at the Criminal Justice Legal 
Foundation, understand that your subcommittee is inquiring into the 
Justice Department's decision not to enforce 18 U.S.C. Sec. 3501. 
Section 3501, which replaces Miranda's exclusionary rule, raises the 
interesting constitutional question of whether Congress can overrule 
this landmark decision. Because Miranda is not a constitutional right 
on its own, but is instead a court-created prophylactic rule, Congress 
may overrule this decision through its power over federal criminal 
procedure.
    The Supreme Court has repeatedly labeled Miranda as a mere 
prophylactic rule. See, e.g., Withrow v. Williams, 507 U.S. 680, 690 
(1993); McNeil v. Wisconsin, 501 U.S. 171, 176 (1991); Michigan v. 
Harvey, 494 U.S. 344, 350 (1990); Oregon v. Elstad, 470 U.S. 298, 309 
(1985); Michigan v. Tucker, 417 U.S. 433, 446 (1974). Confessions taken 
contrary to Miranda are not necessarily coerced or involuntary; Miranda 
simply creates presumption that custodial interrogation without 
adequate warnings are inherently coercive. See Elstad, supra, 470 U.S., 
at 304; New York v. Quarles, 467 U.S. 649, 654 (1984). Miranda is thus 
no more than a bright-line rule of evidence. See Elstad supra, 407 
U.S., at 307.
    While Congress may not overturn a constitutional decision of the 
Supreme Court, it most certainly may overturn a court-created rule of 
evidence or criminal procedure. See, e.g., Bank of Nova Scotia v. 
United States, 487 U.S. 250, 254-255 (1988). Section 3501 is thus no 
more than the valid exercise of Congress' power to regulate the federal 
rules of evidence and criminal procedure. Therefore, the Constitution 
is not an impediment to invoking section 3501 to preserve voluntary 
confessions that run afoul of Miranda's bright line.
            Very truly yours,
                                   (Signed)  Charles L. Hobson

                                   (Typed)  Charles L. Hobson.
                               __________
              Federal Law Enforcement Officers Association,
                                  East Northport, NY, May 28, 1999.
Hon. Strom Thurmond,
U.S. Senate, Russell Building, Washington, DC.
    Dear Senator Thurmond: On behalf of the over 15,700 members of the 
Federal Law Enforcement Officers Association (FLEOA), I wish to inform 
you of FLEOA's support for a recent 4th Circuit court decision, United 
States v. Dickerson, which upholds the principle of law allowing a 
volunteered confession into evidence. This principle, codified as 
Section 3501 of Title 18, United States Code, was passed into law in 
1968, to prevent the exclusion of an otherwise voluntary and competent 
confession. It provides for the use of a criminal defendant's 
confession, notwithstanding whether the defendant was given his or her 
Miranda Warnings.
    Section 3501 does not render Miranda Warnings obsolete. This 
section allows a trial judge, after determining the circumstances 
surrounding the giving of a confession, to admit a volunteered 
confession into evidence. There are several exceptions to Miranda 
Warnings already codified in law, such as excitable utterances, and 
public safety. As the Supreme Court previously stated, the Miranda 
Warnings are just part of the safeguards to ensure no defendant is 
compelled to be a witness against themselves. It is not intended to be 
taken as a constitutional straightjacket. FLEOA believes the Fourth 
Circuit clearly recognized in its Dickerson opinion the fine line 
between a coerced confession and a criminal trying to finesse the 
court. Miranda Warnings are a shield for law enforcement, behind which 
no defendant can claim duress, yet at the same time, the logic behind 
Section 3501 is impeccable. Allowing district judges to view the total 
circumstances is clearly and undoubtedly constitutional and prudent.
    If you have any questions or need further information please 
contact me through FLEOA's Corporate Services Office. Thank you for 
your time and assistance.

                                   (Signed)  Richard J. Gallo

                                   (Typed)  Richard J. Gallo.
                               __________
                                       Major Cities Chiefs,
                                                      May 18, 1999.
Re: Admission of Voluntary Confessions.

Hon. Strom Thurmond, Chairman,

Hon. Charles E. Schumer, Ranking Member,
Subcommittee on Criminal Justice Oversight,
Committee on the Judiciary, Washington, DC.

[Attention: Mr. Gary Malphrus]

    Dear Chairman Thurmond and Senator Schumer: I am to you on behalf 
of the Major Cities Chiefs organization, which represents the chief 
police executives of the fifty largest cities/jurisdictions in the 
United States as well as Montreal, Toronto, Vancouver, and Winnipeg, 
Canada. As you know, this organization was formed to address the unique 
needs and solutions necessary in large urbanized communities. We are 
dedicated to the advancement of research, legislation, policy, and 
programs that will ensure the safety of our citizens and the officers 
that protect them. Our members serve a United States population in 
excess of forty-seven million and employ more than 154,000 sworn law 
enforcement officers.
    We strongly support the recent Fourth Circuit decision in United 
States v. Dickerson, 166 F.3d 667 (4th Cir. 1999), which admitted a 
purely voluntary confession over the defendant's technical Miranda 
objections. As the Fourth Circuit explained, Congress has directed that 
the touchstone for admitting confessions is whether those confessions 
are ``voluntary.'' Under 18 U.S.C. 3501, Congress has directed federal 
courts to examine all of the circumstances in making these 
voluntariness determinations and to give juries the benefit of hearing 
those confessions. In short, rather than focusing on purely technical 
questions surrounding the confession, the courts will focus on the 
totality of the circumstances, that is, the ``big picture.'' As the 
Fourth Circuit put it, ``No longer will criminals who have voluntarily 
confessed their crimes be released on mere technicalities.''
    At the same time, the decision recognized that police should 
continue to give Miranda warnings. If the principles of the Dickerson 
opinion are extended more broadly beyond that the Fourth Circuit, our 
members will continue to give Miranda warnings. Indeed, section 3501 
itself specifically mentions Miranda warnings as a factor to be 
considered in assessing voluntariness. For this reason, the Fourth 
Circuit emphasized, ``nothing in today's opinion provides those in law 
enforcement with an incentive to stop giving the now familiar Miranda 
warnings.'' Thus, the essential effect of Dickerson is to encourage 
police to follow Miranda while, at the same time, not allowing 
dangerous criminals to escape if police officers have mistakenly 
deviated from some part of the various Miranda procedures. This 
approach properly recognizes both a suspect's rights to be free from 
coercion and society's right to be protected from dangerous criminals.
    We also support the Dickerson opinion because it follows in a long 
line of Supreme Court decisions emphasizing that the Miranda safeguards 
are not constitutional rights but court-created procedural devices. 
Along this line, this holding is also important to law enforcement 
because of the implications which would arise in the civil context, 
should Dickerson be reversed presumably on the ground that Miranda 
rights are part of the Constitution. Under these circumstances, an 
entire new area for civil litigation under section 1983 will occur. The 
time and energy of police officials are too valuable to our nation's 
efforts in community policing to be unnecessarily diverted in this 
fashion.
    We hope that your subcommittee will support the Dickerson opinion 
and its holding which will ensure that voluntary confessions are 
admitted in court.
    In closing, I wanted to thank you and your committee members for 
their support of law enforcement, and we look forward to working with 
you in the future.
            Sincerely,
                                   (Signed)  Ruben B. Ortega

                                   (Typed)  Ruben B. Ortega,
                                                          Chairman.
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