Which of the following, by itself, will automatically render a confession involuntary?

Part 3 INTERROGATIONS, CONFESSIONS, AND IDENTIFICATION PROCEDURES

Chapter 8 Interrogations and Confessions Chapter 9 Identification Procedures and the Role of Witnesses

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LEARNING OBJECTIVES When you complete this chapter, you should be able to:

� Summarize how suspects may use the Fifth Amendment to protect themselves against self-incrimination. � Explain Miranda rights and how they impact interrogations and confessions. � Summarize how the Sixth Amendment impacts interrogations and confessions. � Summarize how due process and voluntariness impact interrogations and confessions. � Know when unconstitutionally obtained confessions are admissible in court to prove guilt.

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245

CHAPTER OUTLINE

Interrogations and Confessions

C H

A P

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OUTLINE

Introduction: Getting Suspects to Talk The Fifth Amendment and Self-Incrimination

What It Means to Be Compelled Compulsion during Questioning

Distinguishing between Criminal and Noncriminal Proceedings Some Complications

What It Means to Be a Witness What It Means to Be a Witness against Oneself

Interrogations and Confessions Various Approaches to Confession Law The Due Process Voluntariness Approach

Police Conduct Characteristics of the Accused

The Sixth Amendment Approach Deliberate Elicitation Formal Criminal Proceedings Waiver of the Sixth Amendment Right

to Counsel (Confessions)

The Miranda Approach Custody Interrogation Other Miranda Issues Challenging Miranda More Recent Miranda Decisions

The Exclusionary Rule and Confession Analysis Confessions and Standing Confessions and Impeachment Confessions and “Fruit of the Poisonous Tree”

The Importance of Documenting a Confession Summary Key Terms Key Cases Review Questions Web Links and Exercises

INTRODUCTION

Getting Suspects to Talk

This chapter turns to the law of confessions and interrogations. The Fifth Amendment is what protects suspects from improper interrogation procedures and from being forced to supply illegally obtained confessions, but it is not the only protection offered to suspects in the confession context. Other amendments, such as the Sixth and the Fourteenth, also apply, but the Fifth is most applicable. Accordingly, this chapter begins with an in-depth look at the protections afforded to criminal suspects by the Fifth Amendment.

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Miranda v. Arizona (384 U.S. 436 [1966])

THE FIFTH AMENDMENT AND SELF-INCRIMINATION

The Fifth Amendment protects against much more than self-incrimination (e.g., it also contains the so-called eminent domain clause), but such protections are beyond the scope of a criminal procedures text. Instead, this chapter focuses squarely on what is known as the self-incrimination clause of the Fifth Amendment, which states, in relevant part, that no person “shall be compelled in any criminal case to be a witness against himself.”

The self-incrimination clause seems straightforward on its face, but it has been litigated extensively in the courts over the years. For ease of exposition, the self-incrim- ination clause can be broken into four specific components, each of which has come before the U.S. Supreme Court more than once. The four components are what it means to be (1) compelled and (2) in a criminal proceeding as well as what it means (3) to be a witness and (4) a witness against oneself.

What It Means to Be Compelled

Former chief justice Burger once wrote that “absent some officially coerced self-accusa- tion, the Fifth Amendment privilege is not violated by even the most damning admis- sions” (United States v. Washington, 431 U.S. 181 [1977]). What Justice Burger meant by this was that voluntary (i.e., noncompelled) admissions are not subject to Fifth Amendment protection. That is, if a person fails to assert Fifth Amendment protection and a waiver is “voluntary and intelligent,” then whatever that person says will be admissible (see Garner v. United States, 424 U.S. 648 [1976]).

When, then, can a confession or admission be considered compelled? According to the Supreme Court, compulsion can occur in a number of formal as well as informal cir- cumstances. As noted in the landmark case of Miranda v. Arizona (384 U.S. 436 [1966]), discussed at length later in this chapter, if the Fifth Amendment applied only in formal settings, such as during trial, then “all the careful safeguards erected around the giving of testimony, whether by an accused or a witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police” (p. 466).

Compulsion can occur via several means, but since our interest in this chapter lies with confessions and interrogations, we will limit the discussion to how compulsion can occur during questioning.

COMPULSION DURING QUESTIONING Whether a person can be compelled to testify against himself or herself, in violation of the Fifth Amendment, requires attention to several distinct varieties of questioning as well as to whom is being asked the question: the suspect/defendant or a witness. Specifically, compulsion can occur when certain types of questions are asked of people suspected of being involved in criminal activity. By contrast, compulsion rarely occurs when witnesses are asked questions.

Questioning of Suspects/Defendants. First, if a person is arrested and interrogated after asserting Fifth Amendment protection (and is not provided with counsel), then the Fifth Amendment will be violated. This simple rule stems from the Miranda decision, which, as already indicated, is reviewed in depth later in this chapter.

Second, a defendant in a criminal trial cannot be compelled to testify under any circumstances. The defendant enjoys absolute Fifth Amendment protection from self- incrimination during a criminal proceeding. However, once a defendant takes the stand, he or she can be compelled to answer questions. Indeed, the defendant can be held in contempt for failing to answer questions once he or she has taken the stand. The same rule applies to witnesses. The so-called fair examination rule ensures that wit- nesses at either a trial or a grand jury hearing can be compelled to answer questions

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Brown v. United States 356 U.S. 148 [1958]

once they waive their Fifth Amendment privilege and begin to testify (see, e.g., Brown v. United States, 356 U.S. 148 [1958]; Rogers v. United States, 340 U.S. 367 [1951]).

Questioning of Witnesses. Questioning of witnesses at trial, questioning of witnesses appearing before grand juries, and noncustodial questioning cannot be considered compelled. First, in stark contrast to the Miranda decision, which requires officials to notify people of their right to counsel before custodial interrogation, the Supreme Court has held that trial witnesses are not entitled to notification of their right to remain silent. No assessment as to whether the person’s testimony at trial is the product of a voluntary and intelligent waiver is required, either. According to Justice Frankfurter in United States v. Monia (317 U.S. 424 [1943]), “[I]f [a witness] desires the protection of the [Fifth Amendment’s privilege against self-incrimination], he must claim it or he will not be considered to have been ‘compelled’ within the meaning of the Amendment” (p. 427).

Trial witnesses do not need to be advised of their privilege against self-incrimina- tion for two reasons. First, it is likely that testimony given at a public trial will be less coercive than any statements made out of view of the court. Second, since a trial witness is not the defendant, the process of questioning will likely be less adversarial; rather, the prosecution will simply question the witness.

Next, witnesses who testify before grand juries are not required to be advised of their privilege against self-incrimination and, as such, cannot be compelled in Fifth Amendment terms. This was the decision reached in the case of United States v. Mandujano (425 U.S. 564 [1976]), in which the respondent was charged with perjury for making false statements while testifying before a grand jury. He moved to have his false statements suppressed in his criminal trial, but the Supreme Court held that the failure of the state to provide him with Miranda-like warnings did not violate the Fifth Amendment (see also United States v. Wong, 431 U.S. 174 [1977]; United States v. Washington). The reasoning for this rule is simple: Since such testimony takes place before members of the public (i.e., the grand jury itself) and is usually monitored by the court, the potential for coercion is considerably less likely than is possible in a private setting.

Finally, noncustodial questioning of witnesses outside the courtroom contains the potential for coercion, but the courts have held that out-of-court witnesses do not need to be advised of their privilege against self-incrimination. As Justice Scalia noted in Brogan v. United States (522 U.S. 398 [1998]), it is “implausible” that people are not aware of their right to remain silent “in the modern age of frequently dramatized ‘Miranda’ warnings” (p. 405). In other words, witnesses who are questioned outside court, in noncustodial situations, cannot be considered compelled for Fifth Amendment purposes.

Distinguishing between Criminal and Noncriminal Proceedings

The previous section considered several means by which the government can compel people to incriminate themselves. It is now necessary to focus on the definition of “criminal proceeding,” one of the other important elements of the Fifth Amendment’s self-incrimination clause. Stated simply, if a statement is compelled but is not used in a criminal proceeding, it cannot have been obtained in violation of the Fifth Amendment’s self-incrimination clause. This is because the Fifth Amendment does not apply in noncriminal proceedings.

As a general rule, any criminal defendant has the right to remain silent at grand jury as well as trial proceedings. However, such an individual can also refuse “to answer official questions put to him in any . . . proceeding, civil or criminal, formal or

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In re Gault (387 U.S. 1 [1967])

informal, where the answers might incriminate him in future criminal proceedings” (Lefkowitz v. Turley). Criminal proceedings can thus include more than criminal trials.

It is important to note that just because an answer is compelled before a criminal proceeding, it will not necessarily be held in violation of the Fifth Amendment. For example, in Estelle v. Smith (451 U.S. 454 [1981]), the Supreme Court held that the state may compel answers from a defendant during pretrial hearings to determine his or her competence to stand trial. Such questioning is not considered criminal, for purposes of the Fifth Amendment.

SOME COMPLICATIONS Outside the criminal trial context (i.e., in civil cases), determin- ing whether a proceeding is criminal for Fifth Amendment purposes is not as easy as one might expect. To deal with this complex determination, the courts usually focus on the issue of punitive sanctions. That way, there is no need to distinguish between civil and criminal proceedings. Both types of proceedings possess the potential to hand down punitive sanctions (e.g., forfeiture of one’s property or punitive damages in a liability lawsuit).

That a civil proceeding can be considered criminal for self-incrimination purposes is evidenced in In re Gault (387 U.S. 1 [1967]). In that case, the Supreme Court had the opportunity to determine whether a state’s civil designation of juvenile proceedings diminished the Fifth Amendment’s applicability in such proceedings. The Court noted that “our Constitution guarantees that no person shall be ‘compelled’ to be a witness against himself when he is threatened with deprivation of his liberty” (p. 50). Because juveniles’ liberty is often at stake in juvenile trials (adjudicatory hearings as they are sometimes called), even if such trials are designated civil, the Fifth Amendment applies.

However, in Minnesota v. Murphy (465 U.S. 420 [1984]), the Court noted that ques- tions asked of a probationer that were relevant only to his or her probationary status and “posed no realistic threat of incrimination in a separate criminal proceeding” (p. 435, n. 7) did not violate the Fifth Amendment. That is, the questions did not take place in a criminal proceeding.

In one interesting case, Allen v. Illinois (478 U.S. 364 [1986]), the Supreme Court noted that the Gault decision’s deprivation of liberty criterion was “plainly not good law” (p. 372). Instead, the Court focused on “the traditional aims of punishment—retri- bution or deterrence” (p. 370). Specifically, the Court considered in Allen whether an Illinois statute that provided for the civil commitment of people deemed to be “sexually dangerous” was constitutional. The Court’s decision was that civil confinement under the Illinois Sexually Dangerous Persons Act did not meet the traditional aims of punish- ment but was instead rehabilitative. According to the Court, had the civil confinement imposed on the offenders “a regimen which is essentially identical to that imposed upon felons with no need for psychiatric care, this might well be a different case” (p. 373).

So, what exactly is a criminal proceeding, for purposes of the Fifth Amendment? It is safe to conclude that a criminal proceeding is one that may result in criminal punish- ment. This includes not only criminal trials but also such proceedings as juvenile delin- quency hearings, grand jury investigations, capital sentencing hearings, and the like. Civil commitment proceedings and other proceedings intended to serve a rehabilitative or similar purpose (i.e., other than punishment) are not considered criminal for purposes of the Fifth Amendment.

What It Means to Be a Witness

Still another issue is relevant concerning the scope of the Fifth Amendment’s protection against self-incrimination—namely, the definition of a witness. Everyone knows what a witness is in the conventional sense of the term, but in this context, the Supreme Court

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has declared that the term witness can be defined as “one who supplies testimonial evidence.” The Fifth Amendment protection against compelled self-incrimination also extends to things that people say which are communicative in nature—but not neces- sarily testimonial. An example is an incriminating statement given in a police interroga- tion room. Testimony thus comes in two forms: (1) that which is given at trial under oath and (2) that which is communicative information given by a person who is not under oath.

The testimonial evidence requirement does not cover physical evidence (e.g., tan- gible property and the like). In other words, physical evidence is not protected by the Fifth Amendment. As Justice Holmes pointed out, “[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of phys- ical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material” (Holt v. United States, 218 U.S. 245 [1910], pp. 252–253).

More recently, in Schmerber v. California (384 U.S. 757 [1966]), the Court held that “the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature” (p. 761). As a general rule, then, the government can compel any criminal defendant to supply incriminating physical evidence without violating the Fifth Amendment. Indeed, the government can force the accused to wear a particular outfit (e.g., Holt), to submit to the extraction of a blood sample (e.g., Schmerber), to participate in a lineup (e.g., United States v. Wade, 388 U.S. 218 [1967]), or to produce a sample of handwriting (e.g., Gilbert v. California, 388 U.S. 263 [1967]; United States v. Mara, 410 U.S. 19 [1973]) or a voice exemplar (e.g., United States v. Dionisio, 410 U.S. 1 [1973]).

In addition, the Fifth Amendment “offers no protection against compulsion to submit to fingerprinting, photography, or measurements, . . . to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture” (United States v. Wade, p. 223). As long as the government does not seek testimonial evidence, the Fifth Amendment cannot be violated, even at trial.

It should be pointed out that some verbal responses to questions can be considered noncommunicative and thus exempt from the Fifth Amendment. For example, in Pennsylvania v. Muniz (496 U.S. 582 [1990]), the Court held unanimously that the inabil- ity to articulate words in a clear manner was not testimonial evidence and could be used against the defendant. In that case, the state introduced the defendant’s slurred responses to numerous routine booking questions in order to prove he was guilty of drunk-driving.

What It Means to Be a Witness against Oneself

The fourth and last element of the Fifth Amendment’s self-incrimination clause is that it is limited, not surprisingly, to the person making the incriminating statement. That is, the only person who can assert Fifth Amendment protection is the person being com- pelled to answer a question. According to the Supreme Court, “The Constitution explic- itly prohibits compelling an accused to bear witness ‘against himself’: it necessarily does not proscribe incriminating statements elicited from another. Compulsion upon the person asserting it is an important element of the privilege” (Couch v. United States, 409 U.S. 322 [1973], p. 328).

Furthermore, the Court noted that “[w]e cannot cut the Fifth Amendment com- pletely loose from the moorings of its language and make it serve as a general protector of privacy—a word not mentioned in its text and a concept directly addressed in the Fourth Amendment” (Fisher v. United States, 425 U.S. 391 [1976], p. 401). Thus, in Couch, the Fifth Amendment did not protect a business owner whose accountant turned over documents that incriminated the owner.

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Brown v. Mississippi (297 U.S. 278 [1936])

There are some exceptions to the rule that only the person being compelled can assert Fifth Amendment privilege. For example, when documents are transferred to an attorney for the purpose of obtaining legal advice, the attorney may assert Fifth Amendment protection in place of his or her client. This exception is not based on the Fifth Amendment, however. (Rather, it is a privileged communication.)

INTERROGATIONS AND CONFESSIONS

Most of the law concerning confessions and admissions has arisen in the context of police interrogation. The courts have imposed a litany of restrictions on what law enforcement officials can do in order to elicit incriminating statements from suspected criminals.

It is worthwhile, before continuing, to define the terms confession and admission. A confession occurs when a person implicates himself or herself in criminal activity fol- lowing police questioning and/or interrogation. An admission, by contrast, need not be preceded by police questioning; a person can simply admit to involvement in a crime without any police encouragement. Despite these differences, a confession and an admission will be treated synonymously throughout the remainder of this chapter. Toward the end of the chapter, the discussion will turn to what steps law enforcement officials should take to secure a valid, documented confession.

Various Approaches to Confession Law

Confessions and admissions are protected by the Fifth Amendment. The Miranda rights, for example, stem from the Fifth Amendment. However, confessions and admissions are also protected by the Fourteenth Amendment’s due process clause as well as the Sixth Amendment’s right to counsel clause.

The primary focus in this chapter is on the Fifth Amendment, but for the sake of placing Fifth Amendment confession law into context, it is important to briefly consider the extent to which confessions are protected by other constitutional provisions. Indeed, the very fact that three amendments place restrictions on what the government can do in order to obtain confessions suggests that the U.S. Constitution places a high degree of value on people’s rights to be free from certain forms of questioning.

The Due Process Voluntariness Approach

One approach to confessions and admissions can be termed the due process voluntari- ness approach. In general, when a suspect makes an involuntary statement, his or her statement will not be admissible in a criminal trial (or, as indicated earlier, in any other criminal proceeding) to prove his or her guilt.

At one time, the Fifth and Sixth Amendments did not apply to the states. An illus- trative case is Brown v. Mississippi (297 U.S. 278 [1936]). There, police officers resorted to whippings and other brutal methods in order to obtain confessions from three African American defendants who were later convicted based on their confessions alone. The Supreme Court analyzed this case under the Fourteenth Amendment’s due process clause and found the convictions invalid because the interrogation techniques had been so offensive.

When, then, is a confession involuntary? As decided in Fikes v. Alabama (352 U.S. 191 [1957]), the answer is when, under the “totality of circumstances that preceded the confessions,” the defendant is deprived of his or her “power of resistance” (p. 198). This answer, unfortunately, does not provide any uniform criteria for determining voluntari- ness. Instead, the courts take a case-by-case approach to determining voluntariness. Usually, this requires focusing on two issues: (1) the police conduct in question and (2) the characteristics of the accused.

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Williams v. United States (341 U.S. 97 [1951])

POLICE CONDUCT It has been made patently clear that physical brutality to coerce a confession violates the Fourteenth Amendment. As Justice Douglas stated in Williams v. United States (341 U.S. 97 [1951]), “Where police take matters into their own hands, seize victims, and beat them until they confess, they deprive the victims of rights under the Constitution” (p. 101).

In many other situations, however, the police conduct in question may not rise to the level of torture but may still be questionable. For example, in Rogers v. Richmond (365 U.S. 534 [1963]), a man confessed after the police told him they were going to take his wife into custody. And in Lynumm v. Illinois (372 U.S. 528 [1963]), a defendant con- fessed after being promised leniency. Both confessions were found to be coerced. This is not to suggest that deception on the part of the police necessarily gives rise to an involuntary confession but only that it is one of several considerations in determining voluntariness.

It is safe to conclude that psychological pressures, promises of leniency, and deception are rarely by themselves enough to render a statement involuntary, but two or more such acts (especially if coupled with physical force) will more than likely result in an involuntary confession. Some illustrative cases are worth considering.

For example, in Spano v. New York (360 U.S. 315 [1959]), detectives relied on a police officer who was a friend of the accused to question him. The officer falsely stated that his job would be in jeopardy if he did not get a statement from the accused. The Supreme Court concluded that the false statement, including the sympathy thereby obtained, was sufficient to render the accused’s statement involuntary.

Next, in Leyra v. Denno (347 U.S. 556 [1954]), police relied on a psychiatrist who posed as a doctor in order to give the accused relief from a sinus problem. The psychi- atrist used subtle forms of questions and ultimately obtained a statement from the accused. The Court felt that the suspect was unable to resist the psychiatrist’s subtle questioning.

Contrast Spano and Denno with Frazier v. Cupp (394 U.S. 731 [1969]). There, the Supreme Court held that a police officer’s false statement that a co-defendant impli- cated the accused was not sufficient to produce an involuntary statement. However, if the accused is questioned far from home and denied access to friends and family for several days, his or her resulting statements will probably be deemed involuntary (see Fikes v. Alabama). Similarly, an overly lengthy period of questioning and/or a denial of basic amenities, such as food, may result in a determination of involuntariness (see, e.g., Crooker v. California, 357 U.S. 433 [1958]; Payne v. Arkansas, 356 U.S. 560 [1958]; Ashcraft v. Tennessee, 322 U.S. 143 [1944]; Chambers v. Florida, 309 U.S. 227 [1940]).

CHARACTERISTICS OF THE ACCUSED As far as characteristics of the accused are concerned, conditions such as disabilities and immaturity have resulted in excluded confessions. For example, in Haley v. Ohio (332 U.S. 596 [1948]), the Supreme Court reversed a 15-year-old boy’s confession. In the Court’s words, “Mature men possibly

DECISION-MAKING EXERCISE 8.1

Police Conduct and Voluntariness

A suspect was interrogated by five officers who, with their guns drawn, stood over him as he lay handcuffed on the ground, semiconscious from a gunshot he had received earlier (a wound that was not inflicted by the officers). The

officers did not threaten to shoot the suspect if he failed to confess. Rather, they simply pointed their guns at him. Assuming the suspect confessed, would his confession be considered involuntary under the Fourteenth Amendment?

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Massiah v. United States (377 U.S. 201 [1964])

Colorado v. Connelly (479 U.S. 157 [1986])

might stand the ordeal from midnight to 5 a.m. but we cannot believe that a lad of tender years is a match for the police in such a contest” (pp. 599–600).1

In some instances, fatigue and pain (e.g., as the result of an injury) can also render an accused’s statement involuntary; however, such a result usually requires some ques- tionable conduct on the part of the officials engaged in questioning of the accused (see Ashcraft v. Tennessee; Mincey v. Arizona, 437 U.S. 385 [1978]; and Beecher v. Alabama, 408 U.S. 234 [1972]).

As a general rule, voluntariness is overcome when (1) the police subject the suspect to coercive conduct and (2) the conduct is sufficient to overcome the will of the suspect. Another requirement is to look at the totality of circumstances to determine if the suspect’s vulnerabilities and condition, coupled with the police conduct, led to giving an involuntary confession (see Colorado v. Connelly, 479 U.S. 157 [1986]). See Figure 8.1 for a list of factors used to determine whether a confession is voluntary.

The Sixth Amendment Approach

The Sixth Amendment also places restrictions on what the police can do to obtain confessions and admissions from criminal suspects. In particular, the Supreme Court’s decision in Massiah v. United States (377 U.S. 201 [1964]) led to the rule that the Sixth Amendment’s guarantee to counsel in all “formal criminal proceedings” is violated when the government “deliberately elicits” incriminating responses from a person. The two key elements to the Sixth Amendment approach are deliberate elicitation and formal criminal proceedings. The following subsections define each element.

DELIBERATE ELICITATION In the Massiah case, the defendant was released on bail pend- ing a trial for violations of federal narcotics laws and subsequently made an incriminat- ing statement in the car of a friend who had allowed the government to install a radio designed to eavesdrop on the conversation. Justice Stewart, writing for the majority, argued that if the Sixth Amendment’s right to counsel is “to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jail- house” (p. 206). Furthermore, “Massiah [the defendant] was more seriously imposed

1 Note that Haley dealt with due process, not Miranda. The Court held in Fare v. Michael C. (442 U.S. 707 [1979]) that juveniles are not to be treated differently than adults in the Miranda context.

FIGURE 8.1 Factors Considered in Determining Voluntariness

Police Behavior Characteristics of the Suspect

• Psychological pressure by the police • Promises of leniency • Deception • Length of detention • Duration of questioning • Intensity of questioning • Deprivation of access to family, friends,

nourishment, and counsel • Whether the suspect was advised of his or her right

• Disability • Immaturity • Intoxication • Fatigue • Pain • Age • Level of education

• Familiarity with the criminal process

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United States v. Henry (447 U.S. 264 [1980])

Brewer v. Williams (430 U.S. 387 [1977])

upon . . . because he did not even know that he was under interrogation by a govern- ment agent” (p. 206). These are issues of deliberate elicitation, in which police officers create a situation likely to induce a suspect into making an incriminating statement.

In another Sixth Amendment case, Brewer v. Williams (430 U.S. 387 [1977]), a defendant was suspected of killing a 10-year-old girl. Before he was to be taken by police officers to another city, his attorneys advised him not to make any statements during the trip. The attorneys were also promised by the police officers that they would not question the defendant during the trip. Nevertheless, during the trip, one of the officers suggested that the girl deserved a “Christian burial.” The officer fur- ther mentioned that an incoming snowstorm would make it difficult to find the girl’s body. The officer then stated, “I do not want you to answer me. I don’t want to dis- cuss it further. Just think about it as we’re riding down the road” (p. 432). Shortly thereafter, the defendant admitted to killing the girl and directed the police to her body. The Court reversed the defendant’s conviction, arguing that the officer had “deliberately and designedly set out to elicit information from Williams [the defendant] just as surely as—and perhaps more effectively than—if he had formally interrogated him” (p. 399).

In a related case, United States v. Henry (447 U.S. 264 [1980]), the Supreme Court focused on whether the officers “intentionally creat[ed] a situation likely to induce Henry [the defendant] to make incriminating statements without the assistance of counsel” (p. 274). In that case, a man named Nichols, who was in jail with Henry, was enlisted by the police to be alert to any statements Henry made concerning a robbery. The police did not ask Nichols to start a conversation with Henry, only to be alert to what he said. The Supreme Court found that the officers created a situation likely to elicit an incriminating response but only because Nichols was a paid informant.

However, when law enforcement officers place an informant who is not paid but is working closely with the police in the same cell as the defendant, deliberate elicita- tion does not necessarily occur. This was the decision reached in Kuhlmann v. Wilson (477 U.S. 436 [1986]). Kuhlmann, the informant, did not ask the defendant any ques- tions concerning the crime for which the defendant was charged but instead listened to (and later reported on) the defendant’s “spontaneous” and “unsolicited” state- ments. Clearly, the line between these two cases is thin. The only distinction appears to be that Nichols, the informant in Henry, had worked with the police in the past and was being paid.

FORMAL CRIMINAL PROCEEDINGS A case closely related to Massiah (and decided shortly after it) is Escobedo v. Illinois (378 U.S. 478 [1964]). Escobedo was arrested for murder, questioned, and released. Then, 10 days later, an accomplice implicated Escobedo and he was rearrested. He requested to consult with his attorney, but that

DECISION-MAKING EXERCISE 8.2

Suspect Characteristics and Voluntariness

Ed Hornby approached a police officer on the street and said that he had killed someone and wanted to talk about it. He later confessed to an unsolved murder that had occurred several years earlier. Prior to trial, Hornby sought to have his confession excluded, arguing that it was involuntary. At trial, a psychiatrist testified for the defense that Hornby suffered from command auditory hallucinations, a condition that

rendered him unable to resist what the “voices in his head” told him to do. How should the court decide? What if, instead, Hornby had become hesitant to talk and his confes- sion had been preceded by a lengthy middle-of-the-night interrogation, during which he had been denied food and a desperately needed trip to the restroom?

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request was denied. Escobedo was convicted of murder, based partly on the statement provided by his accomplice. The Supreme Court reversed this decision, however:

We hold . . . that where, as here, the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular sus- pect, the suspect has been taken into police custody, the police carry out a process of interrogations that lends itself to eliciting incriminating state- ments, the suspect has requested and been denied an opportunity to consult with his lawyer, and the police have not effectively warned him of his absolute constitutional right to remain silent, the accused has been denied “the Assistance of Counsel” in violation of the Sixth Amendment . . . and that no statement elicited by the police during the interrogation may be used against him at a criminal trial. (pp. 490–491)

Unfortunately, Escobedo was cause for some confusion. In Massiah, the Court held that the Sixth Amendment right to counsel applies once formal proceedings have begun (e.g., a preliminary hearing, trial, or anything in between). However, in Escobedo, the Court seemed to broaden the scope of the Sixth Amendment by holding that it also applies once the accused becomes the focus of an investigation by the police. This left a significant question unanswered: When does a person become an accused? That is, when do formal criminal proceedings commence?

Massiah was indicted, so many courts have concluded that formal criminal proceedings begin with indictment (e.g., United States ex rel. Forella v. Follette, 405 F.2d 680 [2nd Cir. 1969]). However, eight years after Massiah (and after Miranda), the Supreme Court decided Kirby v. Illinois (406 U.S. 682 [1972]). In that case, the Court held that the Sixth Amendment is implicated whenever the “adverse positions of the govern- ment and defendant have solidified” so that “a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law” (p. 689). Fortunately, the Court clarified this statement by noting that the Sixth Amendment applies “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment” (p. 689, emphasis added). This was echoed in Rothgery v. Gillespie County (554 U.S. 1 [2008]), wherein the Court held that the Sixth Amendment right to counsel can attach at the initial appearance (see Chapter 10 for more on the initial appearance).

Massiah does not apply simply because a suspect or arrestee has retained the ser- vices of counsel. In Moran v. Burbine (475 U.S. 412 [1986]), the Supreme Court held that what is important in determining whether the Sixth Amendment right to counsel applies is whether “the government’s role [has] shift[ed] from investigation to accusa- tion” (p. 430). Similarly, in Maine v. Moulton (474 U.S. 159 [1985]), the Court held that “to exclude evidence pertaining to charges as to which the Sixth Amendment right to coun- sel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public’s interest in the investigation of criminal activities” (p. 180).

It should be noted that the Sixth Amendment approach to interrogations and confessions is offense-specific. This was reiterated by the Supreme Court in Texas v. Cobb (531 U.S. 162 [2001]), where it held that a man’s confession to a crime with which he had not been charged did not violate the Sixth Amendment. In that case, the defen- dant was indicted for burglary and given access to counsel, which obviously prohibits deliberate elicitation of incriminating information. However, he confessed to murder- ing the woman and child who lived in the home he allegedly burglarized. He later sought to have his confession excluded, but the Supreme Court disagreed, in essence, finding that the burglary charge did not trigger the Sixth Amendment protection for the murder charge.

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WAIVER OF THE SIXTH AMENDMENT RIGHT TO COUNSEL (CONFESSIONS) One’s Sixth Amendment right to counsel can be waived in the confession context (just as in the case of trial context, as you will see in Chapter 11). In Michigan v. Jackson (475 U.S. 625 [1986]), the Supreme Court held that once an accused individual has asserted his or her Sixth Amendment right to counsel, any statements obtained from subsequent questioning would be inadmissable at trial unless the accused initiated the communication.

This decision was recently overturned, however, in Montejo v. Louisiana (No. 07-1529 [2009]). Unbeknownst to police, Montejo had been appointed an attorney, but he was encouraged by a detective to write a letter of apology to the wife of the man he had killed. Before doing so, he was advised of his Miranda rights, but again, he had been appointed counsel—it was just that police did not know this. The prosecution introduced the apol- ogy letter at trial. Montejo sought to have it excluded since, he felt, his attorney was not present when it was written. The Supreme Court disagreed. It felt that Miranda and other decisions offer sufficient protection. Also, had Montejo asserted his right to counsel, the outcome would have likely been different.

What is the practical meaning of the Montejo decision? Law enforcement is now allowed, after reading a suspect the Miranda rights and receiving a voluntary waiver of the right to counsel, to interrogate a suspect who has been appointed counsel, provided that the suspect (1) has not previously asserted Miranda protection or (2) has previously asserted Miranda protection and subequently waived it. The decision is beneficial to law enforcement because it offers more opportunities for them to secure incriminating state- ments from criminal suspects.

The Miranda Approach

In a very important yet frequently overlooked case, Malloy v. Hogan (378 U.S. 1 [1964]), the Supreme Court held that the Fifth Amendment’s self-incrimination clause applies to the states. In announcing that ruling some 40 years ago, the Court said that “today the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecution since 1897” (p. 7).

Not long after that decision, the Supreme Court moved beyond Massiah, Escobedo, and the due process voluntariness approaches to interrogation law, focusing instead on the Fifth Amendment. In Miranda v. Arizona (384 U.S. 436 [1966]) the Court announced the following important rule: “[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination” (p. 444, emphasis added). This wording clearly established that the Fifth Amendment should serve as the basis for determining the constitutional- ity of a confession.

Importantly, the Sixth and Fourteenth Amendments still apply to interrogations and confessions in certain situations. For example, if the police conduct in question is not a custodial interrogation (as in Miranda) but formal charges have been filed, the Sixth Amendment will apply. Similarly, if custody and interrogation do not take place and formal charges are not filed, the due process voluntariness test can still be relevant for the purpose of determining the constitutionality of a confession or admission. In fact, think of the Fourteenth Amendment’s due process clause, in particular, as being something of a fallback. If no other constitutional protections apply, the guarantee of due process almost always does.

The Miranda warnings, which are most often read by police to an arrestee, often comprise a series of statements like this: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You also have the right to an attorney. If you cannot afford an attorney, one will be provided to you at no cost. Do you understand these rights as they have been read to you?”

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Berkemer v. McCarty 468 U.S. 420 [1984], p. 442

The discussion will return to some Supreme Court cases addressing the substance and adequacy of these warnings, particularly when they are read differently. But for now, the concepts of custody and interrogation require attention. Since the Supreme Court limited its decision in Miranda to custodial interrogations, it is important to understand the definitions of these two important terms: custody and interrogation.

CUSTODY Many people believe that Miranda rights apply whenever the police begin to question a person. This is not the case; if the person being questioned is not in custody, Miranda rights do not apply. Simple police questioning, or even a full-blown interroga- tion, is not enough to trigger the protections afforded by the Fifth Amendment. The person subjected to such questioning must be in police custody.

What is custody? The Court announced that Miranda applies when “a person has been taken into custody or otherwise deprived of his freedom of action in any signifi- cant way.” An arrest is a clear-cut case of police custody, but what about a lesser intru- sion? Unfortunately, there is no easy answer to this question. Instead, the courts have chosen to focus on the circumstances surrounding each individual case. The Court has stated, however, that “the only relevant inquiry [in analyzing the custody issue] is how a reasonable man in the suspect’s position would have understood his situation” (Berkemer v. McCarty, 468 U.S. 420 [1984], p. 442).

In the absence of a full-blown arrest, the courts have focused on four types of police/citizen encounters in determining whether custody exists for purposes of Miranda: (1) traffic and field stops; (2) questioning in the home; (3) questioning at the police station or equivalent facility; and (4) questioning for minor crimes.

First, custody does not take place in the typical traffic stop. This was the decision reached in Berkemer v. McCarty. There, a motorist was stopped for weaving in and out of traffic. After he admitted to drinking and smoking marijuana, the officer arrested him. The motorist argued that he should have been advised of his right to remain silent, but the Supreme Court disagreed, noting that vehicle stops are “presumptively temporary and brief” and sufficiently public to avoid the appearance of being coercive. The Court added, “From all that appears in the stipulation of facts, a single police officer asked [the defendant] a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists” (p. 442) and thus did not violate the Fifth Amendment.

The same applies to stops not involving vehicles. Miranda permits law enforce- ment officers to engage in “[g]eneral on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the factfinding process” (p. 477). With regard to Terry stops in particular, “[t]he comparatively nonthreatening character of [investigative] detentions explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda” (p. 440). But what if an investigative

DECISION-MAKING EXERCISE 8.3

Formal Criminal Proceedings

An arrest warrant was issued for Mark Eddie for the crime of burglary, following an indictment for his latest heist. A de- tective arrested Eddie, brought him to the stationhouse, and then interrogated him at length concerning the burglary without counsel present. The detective also interrogated

Eddie about additional burglaries of which he was suspected of being involved in. While Eddie refused to talk about the most recent burglary (in which he made off with a substan- tial amount of money), he did admit to two prior burglaries. Was the questioning constitutional?

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California v. Beheler (463 U.S. 1121 [1983])

stop becomes more intrusive than a Terry stop, say, by taking place over a long period of time and/or in a private setting? Then, the Fifth Amendment’s self-incrimination clause, made known to suspects through the Miranda warnings, will usually apply.

Second, it is possible for questioning in one’s home to rise to the level of custody. In Orozco v. Texas (394 U.S. 324 [1969]), the Supreme Court declared that custody existed when four police officers woke a man in his own home and began questioning him. However, in contrast to Orozco is Beckwith v. United States (425 U.S. 341 [1976]). There, Internal Revenue Service (IRS) agents interviewed a man in his home, an action that the Supreme Court declared noncustodial. The man argued that because he was the focus of a criminal investigation, he should have been advised of his right to remain silent. However, Chief Justice Burger noted that “Miranda specifically defined ‘focus,’ for its purposes, as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way’ ” (p. 347).

Third, questioning at the police station or an equivalent facility can also rise to the level of custody. However, not all stationhouse questioning can be considered cus- todial. Consider what the Supreme Court said in Oregon v. Mathiason (429 U.S. 492 [1977]), a case involving a man who voluntarily agreed to meet officers at the police station for questioning. He admitted to involvement in a crime but later argued that his visit to the stationhouse was custodial because of its inherently coercive nature. The Court said:

Any interview of one suspected of a crime by a police officer will have coer- cive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the stationhouse, or because the questioned person is one whom the police suspect. (p. 495)

In a later case, California v. Beheler (463 U.S. 1121 [1983]), the Court offered some clarification concerning its decision in Mathiason. It pointed out that Miranda is not implicated “if the suspect is not placed under arrest, voluntarily comes to the police station, and is allowed to leave unhindered by the police after a brief interview” (p. 1121).

Interestingly, the Beheler decision seems to hold even if a person is pressured to come to the police station for questioning (see, e.g., Yarborough v. Alvarado, 541 U.S. 652 [2004]). For example, in Minnesota v. Murphy, a probationer was ordered to meet with his probation officer for questioning. During the meeting, the probationer con- fessed to a rape and a murder. He later argued that he should have been advised of his Miranda rights, but the Court disagreed, holding that Murphy’s “freedom of movement [was] not restricted to the degree associated with formal arrest” (p. 430). Furthermore, while “[c]ustodial arrest is said to convey to the suspect a message that he has no choice but to submit to the officers’ will and to confess . . . [i]t is unlikely that a probation interview, arranged by appointment at a mutually convenient time, would give rise to a similar impression” (p. 433). The Court commented further in Murphy:

Many of the psychological ploys discussed in Miranda capitalize on the sus- pect’s unfamiliarity with the officers and the environment. Murphy’s regular

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meetings with his probation officer should have served to familiarize him with her and her office and to insulate him from psychological intimidation that might overbear his desire to claim the privilege. Finally, the coercion inherent in custodial interrogation derives in large measure from an inter- rogator’s insinuation that the interrogation will continue until a confession is obtained. . . . Since Murphy was not physically restrained and could have left the office, any compulsion he might have felt from the possibility that terminating the meeting would have led to revocation of probation was not comparable to the pressure on a suspect who is painfully aware that he liter- ally cannot escape a persistent custodial interrogator. (p. 433)

Fourth, the Supreme Court has had occasion to determine whether Miranda applies—specifically, whether people can be considered in custody for minor offenses. Again, Berkemer was a case involving a traffic stop. The second issue before the Court in that case was whether an exception to Miranda should exist for relatively minor crimes, such as misdemeanors. The Court declared that no distinction should be drawn between types of crimes as far as Miranda is concerned. Instead, the only relevant issue is whether a person is in custody (and, of course, interrogated). Even for a misde- meanor, the incentive for police to try to induce the defendant to incriminate himself or herself may well be significant.

It should be underscored before moving on that a key component of Miranda is that the questioning (and detention) must be conducted by government actors. If the people engaged in questioning cannot be considered government actors, then Fifth Amendment protections do not apply. However, when a private individual conducts a custodial interrogation as an agent of the police (i.e., working for the police), Miranda applies (see, e.g., Wilson v. O’Leary, 895 F.2d 378 [7th Cir. 1990]). Figure 8.2 provides a list of factors that are used to distinguish custodial from noncustodial encounters.

FIGURE 8.2 Distinguishing between Custodial and Noncustodial Situations

Custodial Situation Noncustodial Situation

Arrest Typical traffic stop Excessively lengthy confrontation General on-the-scene questioning Not free to leave Free to leave Involuntary encounter Voluntary encounter Private place, such as a police station Public place, where movement is not restricted

DECISION-MAKING EXERCISE 8.4

The Nature of Custody

Carole Reynolds was being held in jail while awaiting trial on narcotics offenses. The police had been unable to get her to make an incriminating statement, so they decided to place an undercover agent in her cell. The two women eventually

struck up a conversation, and the agent asked Reynolds, “What do you do for a living?” She responded, “I’m a drug kingpin.” Could Reynolds’s statement be used against her at her trial for narcotics offenses?

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INTERROGATION The second major component of Miranda is interrogation. Custody by itself is not enough to require that the Miranda warnings be given. For a person to be afforded Fifth Amendment protection—and particularly, to be advised of his or her right to remain silent—he or she must be subjected to interrogation.

Miranda defined interrogation as “questioning initiated by law enforcement offi- cers.” Then, in Rhode Island v. Innis (446 U.S. 291 [1980]), the Court noted that interroga- tion “must reflect a measure of compulsion above and beyond that inherent in custody itself” (p. 300). Thus, any questions that tend to incriminate—that is, those that are directed toward an individual about his or her suspected involvement in a crime—are considered interrogation.

Unfortunately, many questions are not readily identifiable as such. In Innis, the Supreme Court noted that in addition to “express questioning,” the “functional equiva- lent” of a question is also possible. The functional equivalent of a question includes “any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect” (p. 302, n. 8).

In Innis, while police officers were driving the defendant to the police station after his arrest for armed robbery, they engaged in a conversation about the danger the miss- ing robbery weapon posed to schoolchildren with disabilities. Apparently in response to the conversation, the defendant directed the officers to the location of the weapon. Interestingly, though, the Supreme Court held that the officers’ conversation did not constitute interrogation: It was “nothing more than a dialogue between the two officers

DECISION-MAKING EXERCISE 8.5

Can Reading the Miranda Rights Create a Custodial Situation?

Assume that with reasonable suspicion, police officers approach a man whom they suspect of recently robbing the First National Bank. They confront the man, and before initiating any questioning, they immediately read him his Miranda rights. Shortly after being read his rights but before

questioning, the suspect states, “I’m glad you guys found me. I can’t go on like this. I robbed First National.” Does the officers’ reading of Miranda convert a noncustodial situation (the case here) into a custodial one?

Suspects who are custodially interrogated must be advised of their Miranda rights. If the suspect is not in custody or is not interrogated, the Miranda rights do not need to be read.

Rhode Island v. Innis (446 U.S. 291 [1980])

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California v. Prysock (453 U.S. 355 [1981])

to which no response from the respondent was invited” (p. 315). The majority assumed implicitly that suspects will not respond to “indirect appeals to . . . humanitarian impulses,” but Justice Stevens dissented and argued that such an assumption “is directly contrary to the teachings of police interrogation manuals, which recommend appealing to a suspect’s sense of morality as a standard and often successful interroga- tion technique” (p. 315).

Even though Innis did not ultimately involve the functional equivalent of a ques- tion, the Court essentially expanded the definition of questioning. Namely, a mere con- versation between police officers designed to elicit an incriminating response—even if the conversation is not directed toward the suspect—can require giving the Miranda warnings. Of course, the person must also be in custody for the Miranda warnings to apply. Figure 8.3 lists some of the factors considered when distinguishing between interrogation and general questioning.

OTHER MIRANDA ISSUES A number of important Supreme Court cases have hinged on (1) the substance and adequacy of the Miranda warnings and (2) waivers of Miranda. If, for example, the Miranda warnings are not given adequately, then the police risk having a confession being thrown out of court. Also, like many rights, those provided by Miranda can be waived. That is, suspects can elect not to remain silent. Finally, suspects are not re- quired to be advised of their Miranda rights when doing so could compromise public safety. These and other Miranda issues are considered in the four subsections that follow.

Substance and Adequacy of the Warnings. There is a long line of cases involving people who have sought to have their confessions excluded at trial because all or some of the Miranda warnings were not read adequately. For example, in California v. Prysock (453 U.S. 355 [1981]), the juvenile defendant was told, “You have the right to talk to a lawyer before you are questioned, have him present with you while you are being questioned, and all during the questioning” (p. 359). The defendant was then told that he had the right to a court-appointed lawyer but not that one would be provided for him if he was indigent.

The defendant challenged his conviction, but the Court concluded that the warn- ings given to him were sufficient and that “Miranda itself indicates that no talismanic incantation was required to satisfy its strictures” (p. 359).

In another interesting case, Duckworth v. Eagan (492 U.S. 192 [1989]), the following warnings were given:

Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if

FIGURE 8.3 Distinguishing between Interrogation and General Questioning

Interrogation General Questioning

Guilt-seeking questions Information-gathering questions Conversation intended to elicit a response Conversation not intended to elicit a response

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you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer. (p. 198)

Even though the warnings in this version suggested that counsel would only be provided at court, the Supreme Court held, in a 5 to 4 decision, that these warnings “touched all the bases required by Miranda” (p. 203). Thus, as long as all the essential Miranda information is communicated, simple departures will not render a confession thereby obtained inadmissible in a criminal trial.

Another factor involving the substance and adequacy of the Miranda warnings concerns the role of additional, unnecessary information. If more information than the original Miranda warnings is provided to a suspect, will any subsequent confession be inadmissible? For example, must the defendant be advised of the consequences of deciding to answer questions? The case of Colorado v. Spring (479 U.S. 564 [1987]) is a useful point of departure. There, the defendant was arrested and questioned on suspi- cion of transporting stolen firearms. He was also questioned about a homicide. He admitted that he had been given his Miranda warnings and that he understood them; however, he argued that the statements he made about the homicide were not admissi- ble because he had not been informed that he was going to be questioned about the homicide (i.e., he was arrested on suspicion of transporting stolen firearms). Unfortunately for the defendant, the majority held that “a suspect’s awareness of all the possible subjects of questioning in advance of interrogation is not relevant to deter- mining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege” (p. 577).

A similar issue came up in Florida v. Powell (No. 08-1175 [2010]), a case in which the following was added to the Miranda warning: “You have the right to use any of these rights at any time you want during this interview.” The Supreme Court held that

DECISION-MAKING EXERCISE 8.6

Incriminating Evidence and Interrogation

Police officers lawfully executed a search warrant on Don Cheney’s house. Cheney was not at home, but the officers were let into the house by his wife. When Cheney arrived at home, he was immediately arrested. He was then seated on the living room couch, and one of the officers brought in a potted marijuana plant and placed it on the coffee table in front of him. When Cheney saw the plant, he

began crying and said, “OK, you got me. The plant is mine. As you probably know, there are plenty more where that came from.” At trial, Cheney sought to have his statement suppressed on the grounds that a custodial interrogation without the Miranda warnings took place in his living room on the night of the search. How should the court decide?

DECISION-MAKING EXERCISE 8.7

Another Interrogation?

The police permitted a man who was the suspect in a murder investigation to converse with his wife at the police station where he was being held. Their conversation occurred during the presence of a police officer and was recorded. The man made an incriminating response during

the conversation, which was later introduced at his trial for the murder of his child. The man argued that he had been subjected to the functional equivalent of an interrogation when the police officer was present with a tape recorder. Is he correct?

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advising a suspect that he or she has the right to talk with an attorney before answering any questions and that the suspect can invoke that right at any time during questions conformed to Miranda.

To ensure that the Miranda warnings are read properly, most police departments have a policy describing what that should entail. Figure 8.4 provides an example of one such policy, from the San Bernardino, California, Police Department.

Waiver of Miranda. In Miranda, the Supreme Court stated that if a person talks after he or she has been read the warnings, “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel” (p. 475). Furthermore, “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained” (p. 475). According to the Supreme Court: