No. S IN THE SUPREME COURT OF THE STATE OF CALIFORNIA

No. S056734 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF CALIFORNIA, ) Court of Appeal ) No. E016569 Plaintiffs and Respondents, ) ) Superior Court v. ) San Bernardino ) County AIRRIQUE PEEVY, ) No. FVI02696 ) (Hon. John Gibson, Defendant and Petitioner. ) Judge Presiding) ) BRIEF OF THE CALIFORNIA ATTORNEYS FOR CRIMINAL JUSTICE, AS AMICUS CURIAE, SUPPORTING PETITIONER John T. Philipsborn Charles D. Weisselberg (Bar No. 83944) (Bar No. 105015) 1231 Market St., Penthouse Michael J. Brennan (Bar No. 40436) San Francisco, CA 94103-1488 Carrie L. Hempel (Bar No. 126713) (415) 864-3125 Post-Conviction Justice Project University of Southern California On the Brief: Law School Jorge deneve University Park Rita Soto Los Angeles, CA 90089-0071 Law Student Interns (213) 740-2528 Attorneys for Amicus Curiae California Attorneys for Criminal Justice

TABLE OF CONTENTS Page TABLE OF AUTHORITIES... iv INTRODUCTION AND INTEREST OF AMICUS CURIAE... 1 ARGUMENT... 2 I. POLICE OFFICERS THROUGHOUT CALIFORNIA ARE TRAINED THAT IT IS PERMISSIBLE TO QUESTION SUSPECTS IN VIOLATION OF MIRANDA... 2 A. The California Department of Justice and Other Agencies Train Officers That They Are Free to Question Suspects Who Have Asserted the Right to Counsel or the Right to Remain Silent 2 B. This Training Continues, Even After This Court and Several Courts of Appeal Have Criticized Officers For Violating Miranda... 9 II. STATEMENTS OBTAINED THROUGH QUESTIONING OUTSIDE MIRANDA CANNOT BE USED FOR IMPEACHMENT BECAUSE THE PRACTICE OF DELIBERATELY QUESTIONING OUTSIDE MIRANDA VIOLATES THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION.... 12 A. The Fifth Amendment Privilege Against Self-Incrimination Applies in the Police Station and Includes the Right to Consult Counsel Prior To, and During, an Interrogation.... 13 1. The privilege against self-incrimination protects people against the coercive power of government.... 13 2. The Fifth Amendment applies in the police station.. 14 3. The Fifth Amendment includes a right to consult counsel prior to interrogation and to have counsel present during interrogation.... 17 B. An Individual Who Requests an Attorney Is Invoking the Fifth Amendment Privilege, and Police Must Honor the Individual s Desire to Remain Silent.... 17 C. The Impeachment Use of Outside Miranda Statements Should Be Prohibited Because the Practice of Deliberately Questioning i

Outside Miranda Violates the Substantive Protections of the Fifth Amendment and Not Just Some Prophylactic Safeguard. 19 1. Miranda s requirements express the substantive Fifth Amendment right to remain silent.... 19 2. The deliberate and intentional practice of questioning outside Miranda is unconstitutional because it necessarily exacerbates the coercive nature of custodial interrogations.... 23 3. The deliberate and intentional practice of questioning outside Miranda is unconstitutional because it endangers the Fifth Amendment.... 27 D. The Impeachment Use of Outside Miranda Statements Should Be Prohibited Because the Practice of Deliberately Questioning Outside Miranda Is an Attempt to Bypass the Immunity Statute Promulgated by the California Legislature and Required by the Fifth Amendment.... 28 1. The practice of deliberately questioning outside Miranda is an attempt to bypass the immunity statute promulgated by the legislature and required by the Constitution.... 29 2. This Court should remove the incentive that fuels the practice of deliberately questioning outside Miranda and protect the Fifth Amendment by prohibiting the impeachment use of statements obtained by that illegitimate practice.... 31 E. The Impeachment Use of Outside Miranda Statements Should Be Prohibited to Deter the Police From Violating the Fifth Amendment Rights of Individuals That They Question.... 34 1. Prohibiting the use for impeachment of statements obtained by the intentional and deliberate practice of questioning outside Miranda would deter that practice.... 34 2. Any failure to exclude outside Miranda statements would place officers in a bind because this Court s pronouncement would contradict the holdings of the Ninth Circuit s courts.... 37 III. STATEMENTS OBTAINED THROUGH QUESTIONING OUTSIDE MIRANDA CANNOT BE USED FOR IMPEACHMENT BECAUSE THE PRACTICE OF DELIBERATELY QUESTIONING OUTSIDE ii

MIRANDA SHOCKS THE CONSCIENCE AND VIOLATES THE FOURTEENTH AMENDMENT.... 40 A. Intentional and Egregious Violations of the Community s Sense of Fair Play and Decency Shock the Conscience and Violate the Fourteenth Amendment.... 40 B. The Practice of Deliberately Questioning Outside Miranda Shocks the Conscience and Violates the Due Process Clause of the Fourteenth Amendment.... 41 1. Miranda continued a strong American tradition of protecting the Constitutional privilege against selfincrimination.... 41 2. The protections described in Miranda have become an integral part of the community s sense of fairness and decency.... 43 3. The egregious and deliberate practice of questioning outside Miranda offends society s sense of fairness and decency and flouts the Constitution.... 45 C. The Fourteenth Amendment Prohibits the Government s Use for Impeachment of Statements Produced by the Egregious Practice of Deliberately Questioning Outside Miranda.... 48 CONCLUSION... 50 iii

TABLE OF AUTHORITIES Page(s) Cases: Arizona v. Roberson, 486 U.S. 675 (1988)... 18, 19, 22-25, 27, 44 Boyd v. United States, 116 U.S. 616 (1886)... 13 Brown v. Walker, 161 U.S. 591 (1896)... 13 California Attorneys for Criminal Justice v. Butts, 922 F. Supp. 327 (C.D. Cal. 1996)... 37-39 California Attorneys for Criminal Justice v. Butts, CV 95-8634-ER (C.D. Cal.)... 1, 7, 8 Chambers v. Florida, 309 U.S. 227 (1940)... 14 Collazo v. Estelle, 940 F.2d. 411 (9th Cir. 1991), cert. denied, 502 U.S. 1031 (1992)... 44, 46 Connecticut v. Barrett, 479 U.S. 523 (1987)...20, 23, 44 Cooper v. Dupnik, 963 F.2d 1220 (9th Cir.) (en banc), cert. denied 506 U.S. 953 (1992)... passim Counselman v. Hitchcock, 142 U.S. 547 (1892)... 13, 42 Daly v. Superior Court, 19 Cal. 3d 132 (1977)... 30 Daniels v. Williams, 474 U.S. 327 (1986)... 41 Duckworth v. Eagan, 492 U.S.195 (1989)... 35 Edwards v. Arizona, 451 U.S. 477 (1980)... 17, 18, 22, 27, 36, 44 Escobedo v. Illinois, 378 U.S. 478 (1964)... 14, 21, 24, 27, 42, 49 Fare v. Michael C., 442 U.S. 707 (1979)... 17, 18, 27, 42, 44 iv

Garrity v. New Jersey, 385 U.S. 493 (1967)... 32 Harris v. New York, 401 U.S. 222 (1971)...31, 34, 36, 37 Harrison v. United States, 392 U.S. 219 (1968)... 50 Haynes v. Washington, 373 U.S. 503 (1963)... 24 In re Darrell Anthony T., 90 Cal. App. 3d 325 (2d Dist. 1979)... 30 In re Gault, 387 U.S. 1 (1967)... 15 In re Gilbert E., 32 Cal.App.4th 1598 (2d Dist. 1995)...10, 44, 47, 48 Kastigar v. United States, 406 U.S. 441 (1972)...15, 29, 30, 32 Lefkowitz v. Cunningham, 431 U.S. 801 (1977)... 15 Malloy v. Hogan, 378 U.S. 1 (1964)... 15 Mapp v. Ohio, 367 U.S. 643 (1961)... 25, 40 McCarthy v. Arndstein, 266 U.S. 34 (1924)... 15 Michigan v. Harvey, 494 U.S. 344 (1990)... 35, 36 Michigan v. Jackson, 475 U.S. 625 (1986)... 35 Michigan v. Mosley, 423 U.S. 96 (1975)... 24 Michigan v. Tucker, 417 U.S. 433 (1974)... 19 Minnick v. Mississippi, 498 U.S. 146 (1990)...17, 28, 44 Miranda v. Arizona, 384 U.S. 436 (1966)... passim Nardone v. United States, 308 U.S. 338 (1939)... 49 New Jersey v. Portash, 440 U.S. 450 (1979)... 29, 31-33 Olmstead v. United States, 277 U.S. 438 (1928)... 12 v

Oregon v. Elstad, 470 U.S. 298 (1985)...19, 42, 46, 49 Oregon v. Hass, 420 U.S. 714 (1975)...31, 35, 37 People v. Baker, 220 Cal.App.3d 574 (4th Dist.), cert. denied, 498 U.S. 947 (1990)... 10, 48 People v. Bey, 21 Cal.App.4th 1623 (2d Dist. 1993)...10, 45, 47 People v. Boyer, 48 Cal. 3d 247, cert. denied, 493 U.S. 975 (1989), and disapproved on other grounds, People v. Stansbury, 9 Cal. 4th 824 (1995)...15, 16, 22, 42 People v. Bradford, 14 Cal.4th 1005 (1997)... 9-11, 36, 37, 44, 47 People v. Braeseke, 25 Cal.3d 691 (1979), aff d following remand, 28 Cal. 3d 86 (1980), and cert. denied, 451 U.S. 1021 (1981).... 44 People v. Coleman, 13 Cal. 3d 867 (1975)... 32 People v. Disbrow, 16 Cal. 3d 101 (1976) abrogated by Cal. Const. art I, 28(d)... 46, 47 People v. Eli, 66 Cal. 2d 63, cert. denied, 389 U.S. 888 (1967)... 44 People v. May, 44 Cal. 3d 309 (1988)... 22 People v. Montano, 226 Cal.App.3d 914 (1st Dist. 1991)... 10, 47 People v. Smith, 31 Cal. App. 4th 1185 (2d Dist. 1995)... 45 Ramona v. Superior Court, 37 Cal. 3d 802 (1985)... 32, 33 Rochin v. California, 342 U.S. 165 (1952)...40, 41, 48-50 Solem v. Stumes, 465 U.S. 638 (1984)...20, 21, 23 Watkins v. United States, 354 U.S. 178 (1957)... 15 Withrow v. Williams, 507 U.S. 680 (1993)... 20-22 vi

Constitutional Provisions: U.S. CONST. amend. V... passim U.S. CONST. amend. XIV...19, 40, 41 Statutes and Rules: 18 U.S.C. 3501... 22 1996 Cal. Stat. ch. 302, 1... 29 28 U.S.C. 2254(a)... 21 Cal. Penal Code 1324...28, 29, 31 Cal. Penal Code 13500... 4 Cal. Penal Code 13503... 4 Cal. Penal Code 13510... 4 Cal. Penal Code 13510.5... 4 Cal. Penal Code 13519.9... 4 Other Authorities: A. DANIEL YARMEY, UNDERSTANDING POLICE AND POLICE WORK: PSYCHOLOGICAL ISSUES (1990)... 25, 26 Brief Amici Curiae of the Police Foundation, et al. in Support of the Respondent, Withrow v. Williams, 507 U.S. 680 (1993)... 44 CALIFORNIA DEPARTMENT OF JUSTICE, CALIFORNIA PEACE OFFICERS LEGAL SOURCEBOOK, 7.40 (1997).... 5, 6, 10 City of Santa Monica, California, TRAINING BULLETIN, 95-19 (September 7, 1995)... 6 vii

COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING, CALIFORNIA DEPARTMENT OF JUSTICE, INTERROGATION LAW INSTRUCTORS OUTLINE (1996)... 4, 5 Conrad V. Hassel, In Defense of Fairness: The Need for Miranda, 54 POLICE CHIEF 12 (Dec. 1987)... 43 David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190 (1988)... 20 Devallis Rutledge, Custodial Interrogation Outside Miranda, CALIFORNIA LAW ENFORCEMENT Q-SHEET 90-37 (October 1990).... 7 Devallis Rutledge, Questioning Outside Miranda, in 1 DID YOU KNOW..., THE MONTHLY TRAINING AND INFORMATION BULLETIN OF THE CALIFORNIA DISTRICT ATTORNEYS ASSOCIATION at 4 (June 1995)... 6 Eduardo Paz-Martinez, Police Chiefs Defend Miranda Against Meese Threats, BOSTON GLOBE, Feb. 5, 1987, at 25.... 43, 44 FRED INBAU, JOHN E. REID & JOSEPH P. BUCKLEY, CRIMINAL INTERROGATION AND CONFESSION (3d. ed. 1986)... 25, 26 Nancy Lewis, 20 Years After Miranda, Police Say They ve Learned to Live With Ruling; Early Outrage At Decision On Suspect s Rights Called Overreaction, WASH. POST, June 13, 1986, at A4... 43 ROBERT F. ROYAL & STEVEN R. SCHUTT, THE GENTLE ART OF INTERVIEWING AND INTERROGATION: A PROFESSIONAL MANUAL AND GUIDE (1976)... 25 Stephen J. Schulhofer, Miranda s Practical Effect: Substantial Benefit and Vanishingly Small Social Costs, 90 Nw. U. L. Rev. 500 (1996)... 43 Supplemental Brief by the United States Department of Justice, United States v. Leong, 96-4876 (4th Cir.)... 21, 22 viii

Tamar Jacoby, Fighting Crime by the Rules: Why Cops Like Miranda, NEWSWEEK, July 18, 1987, at 53... 43 Wayne R. LaFave, Constitutional Rules For Police: A Matter of Style, 41 SYRACUSE L. REV. 849 (1990)... 20 ix

INTRODUCTION AND INTEREST OF AMICUS CURIAE Amicus Curiae, the California Attorneys for Criminal Justice ( CACJ ) is a non-profit corporation founded in 1972. CACJ has over 2,700 dues-paying members, primarily criminal defense lawyers. One of the principal purposes of CACJ, as set forth in its By-laws, is to defend the rights of individuals guaranteed by the United States and California Constitutions, and to resist efforts to curtail these rights. The members of CACJ are gravely concerned about the widespread practice among police officers in California to question suspects after they have asserted the right to counsel or to remain silent. The practice is so common that it has acquired a well-recognized name in the law enforcement community; it has been dubbed questioning outside Miranda. CACJ members are so disturbed about questioning outside Miranda that they have authorized the organization to join with other plaintiffs to bring a civil rights action (California Attorneys for Criminal Justice v. Butts, CV 95-8634- ER (C.D. Cal.)) to try to curtail that practice. This brief supports petitioner and explains why a statement taken in deliberate violation of Miranda v. Arizona is inadmissible for impeachment purposes. Counsel for CACJ also understand that an amicus curiae brief will be filed by another organization, the National Association of Criminal Defense Lawyers, focusing on the reasons why an outside Miranda statement is involuntary, within the meaning of the Fourteenth Amendment. This brief, therefore, will concentrate primarily on the practice of questioning outside Miranda and the requirements of the Fifth Amendment. Part I of the Argument examines training materials and explains the disheartening fact that the California Department of Justice and other law enforcement agencies are training officers that it is permissible to violate Miranda. Part II reviews the history and purpose of the Fifth Amendment and describes how the deliberate 1

practice of questioning outside Miranda violates the requirements of the Fifth Amendment. Part III explains how the deliberate practice of questioning outside Miranda also shocks the conscience and violates the Due Process Clause of the Fourteenth Amendment. The legal principles in this case are easy enough to explain. What is perhaps harder to communicate is the practical importance of this appeal and the utterly outrageous position taken by the State. The State is not seeking permission to use evidence for impeachment when officers have made a good faith mistake. Here, as in other cases of outside Miranda questioning, a suspect has made an unequivocal assertion of his rights, and officers have continued to question in direct violation of Miranda and thirty years of clear case law. The California Attorney General asks this Court for its blessing to deliberately violate the law. A ruling in favor of the State would eviscerate Miranda and wholly deprive accused citizens of their privilege against selfincrimination. ARGUMENT I. POLICE OFFICERS THROUGHOUT CALIFORNIA ARE TRAINED THAT IT IS PERMISSIBLE TO QUESTION SUSPECTS IN VIOLATION OF MIRANDA A. The California Department of Justice and Other Agencies Train Officers That They Are Free to Question Suspects Who Have Asserted the Right to Counsel or the Right to Remain Silent At the trial in this case, San Bernardino Sheriff s Detective Dennis Henderson testified that he continued to question Mr. Peevy, despite Peevy s unambiguous invocation of the right to counsel, just so that Henderson could 2

gain a statement for impeachment purposes. Detective Henderson knew he was violating Miranda v. Arizona, 384 U.S. 436 (1966). He knew that, under Miranda and its progeny, once a suspect in custody asserts his or her Fifth Amendment rights, all interrogation must cease. Detective Henderson nevertheless continued to question Mr. Peevy, as he and countless other law enforcement officers in this State have been trained to do. Regrettably, this training has been sanctioned by the California Department of Justice and other agencies. It is truly disheartening for amicus curiae to discover that the very people who are charged with enforcing the law are training officers to violate the law. Peace officers are trained in the law in a variety of ways. Officers initially receive training in various service academies, operated by police and sheriffs departments throughout the State. After officers graduate from an academy and enter a police force, they may receive formal advanced training from their own departments, or they may attend advanced training classes or seminars conducted by other agencies or organizations. Officers also continually receive informal training from prosecutors and others, who counsel them on the requirements of the law. As explained in this brief, and as demonstrated by the accompanying published materials and court documents, the California Department of Justice s training arm, the California Attorney General s Office, the California District Attorneys Association, and private providers have all trained officers that it is permissible to disregard the requirements of Miranda. 1 Perhaps the State s leader in the training of officers is the Commission 1 The exhibits discussed in this Brief have been filed separately by amicus curiae, along with a request for judicial notice. In addition, Mr. Peevy has filed a habeas corpus petition containing most of the very same materials. 3

on Peace Officer Standards and Training ( POST ). POST is established by the legislature, pursuant to Cal. Penal Code 13500. POST is a Commission within the California Department of Justice. Id. POST s powers and duties are set forth in Cal. Penal Code 13500-13519.9, and include: developing training programs for law enforcement officers (Cal. Penal Code 13503(e)); adopting minimum standards for the physical, mental and moral fitness of officers (Cal. Penal Code 13510(a)); establishing minimum standards for training of peace officers (Cal. Penal Code 13510.5); and making available advanced training programs for criminal investigators through POST s Robert Presley Institute (Cal. Penal Code 13519.9). POST trains officers that it is permissible to continue questioning custodial suspects in violation of Miranda. Filed separately as Exhibit A is POST s INTERROGATION LAW INSTRUCTORS OUTLINE, dated December 1996. As explained on the second page of the OUTLINE, it was prepared at POST s direction and was distributed to instructors who themselves teach interrogation law to criminal investigators at POST s Robert Presley Institute. The OUTLINE has an entire section entitled Statements Obtained Outside Miranda. The OUTLINE instructs officers that: Voluntary statements obtained in non-compliance with Miranda s guidelines ( outside Miranda) statements can... be used: a. To impeach a defendant.... b. As a basis for obtaining physical evidence.... c. For other investigative purposes, such as locating contraband, locating the crime scene, identifying cosuspects, locating witnesses, clearing cases in order to reprioritize investigative time, and putting to rest community fears. Exhibit A at 28-29 (citations omitted). The OUTLINE goes on to tell officers that non-coercive questioning in violation of Miranda does not violate a suspect s civil rights or his Fifth Amendment Rights. Id. at 29. POST s 4

OUTLINE concludes that non-coercive questioning in violation of Miranda is not unlawful and, further, that [w]hile the courts can decide that police compliance with Miranda is prerequisite to confession admissibility, the courts have no authority to declare that non-compliance is unlawful, nor to direct the manner in which police investigate crimes. Id. POST thus trains the trainers that it is permissible to question suspects after they have asserted their Miranda rights. Another primary training resource for police officers is the C ALIFORNIA P EACE OFFICERS LEGAL SOURCEBOOK. A portion of the SOURCEBOOK is submitted, for the Court s convenience, as Exhibit B. As explained in the Declaration of Joel E. Carey (attached as part of Exhibit H, and discussed infra), the SOURCEBOOK is authored by Carey, who is a Deputy Attorney General. See Exhibit H at 98, 2. Further, [t]he Legal Sourcebook is a Department of Justice Publication..., which is updated six times a year and is used for training at numerous police academies and colleges throughout the state, as well as by tens of thousands of individual peace officers who want to stay abreast of the law. Id. The SOURCEBOOK has an entire section, four pages, under the heading Deliberately Ignoring an Invocation. According to the SOURCEBOOK, when police intentionally fail to comply with Miranda, the law should still permit a statement to be used to impeach the suspect at trial. Exhibit B at 42. The SOURCEBOOK reviews the cases on admissibility of a statement taken in violation of Miranda, and characterizes Miranda s warning and waiver requirements as mere suggested guidelines. Id. at 44. The SOURCEBOOK also notes the pendency of this case (Peevy), and of a civil rights action on this issue, and concludes that the question of what happens when police deliberately ignore a suspect s 5

invocation of Miranda rights is very controversial and probably will not be settled for a long time to come. Id. at 45. Significantly, the SOURCEBOOK does not tell officers that questioning in violation of Miranda is impermissible. Police officers also learn the law from prosecutors. Exhibit C is an article entitled Questioning Outside Miranda, written by Orange County Deputy District Attorney and POST Commissioner Devallis Rutledge. The article was published in DID YOU KNOW...., THE MONTHLY TRAINING AND INFORMATION BULLETIN OF THE ASSOCIATION, in June, 1995. CALIFORNIA DISTRICT ATTORNEYS Questioning Outside Miranda begins with the statement: Did you know that a voluntary statement deliberately taken by police without following the procedure recommended in Miranda can legitimately be used for impeachment? Exhibit C at 48. The article goes on to advise that deliberate non-compliance with Miranda does not detract from the use of a statement for impeachment, that officers risk no civil liability for questioning outside Miranda and that by so questioning, they have little to lose and something to gain. Id. This article has proved influential. As an example of its influence, Exhibit D is a Training Bulletin issued by the Chief of the Santa Monica Police Department. It repeats the article almost verbatim. Police officers also receive training from private providers. Submitted as Exhibit E is a training bulletin written by Mr. Rutledge and published by a private company. These bulletins were formerly distributed to law enforcement subscribers throughout the state. 2 Exhibit E, entitled Custodial Interrogation 2 See Exhibit J, Deposition of Devallis Rutledge in California Attorneys for Criminal Justice v. Butts, at 213-219. 6

Outside Miranda, concludes: It is not unlawful to interrogate a suspect outside Miranda. His statements may properly be used for impeachment, to apprehend and convict confederates, to recover property or bodies, to clear unsolved cases, to absolve suspects of further suspicion, or for any proper purpose. Miranda simply precludes their use as evidence of guilt at the suspect s trial. Exhibit E at 55. The same private company distributed to subscribing police agencies a videotape about questioning outside Miranda featuring Mr. Rutledge. 3 The videotape transcript has been submitted to this Court as Exhibit F. In this video segment, Mr. Rutledge reiterates that the practice of deliberately questioning outside Miranda is completely valid and that police officers have much to gain by intentionally ignoring the invocation of a person s Fifth Amendment rights: What if you ve got a guy [in custody] that you ve only got one shot at? This is it, it s now or never because you re gonna lose him he s gonna bail out or a lawyer s on the way down there, or you re gonna have to take him over and give him over to some other official you re never gonna have another chance at this guy, this is it. And you Mirandize him and he invokes. What you can do legally do in that instance is go outside Miranda and continue to talk to him because you ve got other legitimate purposes in talking to him other than obtaining an admission of guilt that can be used in his trial.... [Y]ou may want to go outside Miranda and get information to help you clear cases... Or maybe it will help you recover a dead body or missing person... You may be able to recover stolen property... Maybe his statement outside Miranda will reveal methods his methods of operation... Maybe his statement will identify other criminals that are capering in your community... Or his statements might reveal the existence and location of physical evidence. You ve got him, but you[ d] kinda like to have the gun that he used or the knife that he used... [Y]ou go outside Miranda and take a statement and then he tells you where the 3 See Exhibit J, Deposition of Devallis Rutledge in California Attorneys for Criminal Justice v. Butts, at 213-219, 255-258. 7

stuff is, we can go and get all that evidence. And it forces the defendant to commit to a statement that will prevent him from pulling out some defense and using it at trial that he s cooked up with some defense lawyer that wasn t true. So if you get a statement outside Miranda and he tells you that he did it and how he did it or if he gives you a denial of some sort, he s tied to that, he is married to that...[p]erfectly legitimate said both the California and U.S. Supreme Courts to use non- Mirandized statement[s] if they re otherwise voluntary. I mean we can t use them for any purpose if you beat it out of him, but if they re voluntary statements,... [we can] use them to impeach or rebut. So you see you ve got all those legitimate purposes that could be served by statements taken outside Miranda. See Exhibit F at 59-61. These exhibits show that officers throughout the State are told that it is permissible to continue to question a suspect in custody after he or she has asserted the right to counsel or the right to remain silent. This training is sanctioned by POST the very agency within the California Department of Justice that is charged with training officers and with setting moral standards for their conduct, by the California Attorney General s Office, by the California District Attorneys Association, and by private training providers. Instead of telling officers that all questioning must cease when a suspect invokes his or her rights period these agencies and providers tell officers that they have a lot to gain by continuing to question. Finally, if this Court has any lingering doubt about the extent of this training or practice, amicus curiae have submitted several additional exhibits that are part of the court file in CACJ v. Butts, CV 95-8634-ER (C.D. Cal.), a civil rights action establishing that officers in Los Angeles and Santa Monica are trained to question Outside Miranda. Exhibit G is the City of Los Angeles answer to the second amended complaint in that case. In paragraphs 17, 27, and 37, they admit that... the Los Angeles Police Department has trained its officers that it is 8

legally permissible to continue non-coercive questioning of suspects who have asserted their right to remain silent [during a custodial interrogation] and that prior to arraignment or indictment of a suspect, it is legally permissible to continue non-coercive questioning of suspects who have asserted their right to counsel.... In addition, filed collectively as Exhibit H are the declarations of Orange County Deputy District Attorney and POST Commissioner Devallis Rutledge, Santa Rosa Jr. Community College Professor Raymond Hill, and Deputy Attorney General Joel E. Carey. These were filed collectively with the summary judgment motion of the City of Santa Monica in the same case. These declarations reveal the ways in which these law enforcement trainers tell officers how to question outside Miranda. B. This Training Continues, Even After This Court and Several Courts of Appeal Have Criticized Officers For Violating Miranda This Court and several of the Courts of Appeal have recently criticized officers for violating Miranda. In People v. Bradford, 14 Cal.4th 1005 (1997), this Court recently addressed a case where officers questioned a suspect in custody after he had asked for an attorney. The facts in Bradford are quite different from those here; unlike the present case, the record in Bradford did not indicate that the officer deliberately continued to question for some purpose such as impeachment. Nevertheless, this Court criticized the officers, stating that their conduct in deliberately interrogating defendant after defendant had invoked his right to counsel was unethical and it is strongly disapproved. Id. at 1042. Bradford came on the heels of several Court of Appeal decisions in which panels took officers to task for intentionally questioning suspects in violation of Miranda. See In re Gilbert E., 32 Cal.App.4th 1598, 1601-02 (2d Dist. 1995) ( Outside Miranda statements erroneously admitted in 9

prosecution s case in chief; court decries practice, and finds statements involuntary); People v. Bey, 21 Cal.App.4th 1623, 1628 (2d Dist. 1993) (statement involuntary, and not admissible for any purpose, where officers deliberately violated Miranda and also promised that statement could not be used against defendant because he invoked right to counsel); People v. Montano, 226 Cal.App.3d 914, 930-37 (1st Dist. 1991) (statement involuntary where officers intentionally ignored repeated assertions of right to remain silent); but see People v. Baker, 220 Cal.App.3d 574, 576-79 (4th Dist.), cert. denied, 498 U.S. 947 (1990) ( Outside Miranda statements are admissible for impeachment). Though the courts in Bey, Gilbert E. and Montano, and this Court in Bradford, were quite clear in decrying this practice, trainers have not told officers to stop questioning outside Miranda. Indeed, the Department of Justice s response to Bradford demonstrates the intransigence of these trainers. The CALIFORNIA PEACE OFFICERS LEGAL SOURCEBOOK, Exhibit B, discusses the Bradford decision. After discussing the holding, the SOURCEBOOK states that, the Bradford court went on to gratuitously observe that the practice of intentionally disregarding a suspect s invocation of Miranda rights is unethical and strongly disapproved. Exhibit B at 45 (quoting Bradford; emphasis added). The SOURCEBOOK does not tell officers that they must obey Miranda. The SOURCEBOOK does not tell officers that the practice of questioning outside Miranda is unethical. Rather, the SOURCEBOOK makes light of the violation in Bradford, by characterizing this Court s criticism as gratuitous, and the SOURCEBOOK goes on to state that the implications of questioning outside Miranda remain unsettled. Id. Further, Mr. Rutledge a Commissioner of POST and trainer of trainers remains defiant. His training is influential because he is regarded by other members of POST as an expert on the law of interrogation. See Exhibit 10

I at 136-37, 179. But Mr. Rutledge testified under oath in deposition that a decision from the federal court in the civil rights action, CACJ v. Butts, would not change the way he trains officers. Stunningly, he also testified that a decision from this Court, the highest Court in California, would also not alter his training: Q: If the California Supreme Court issued a decision which was critical of questioning outside Miranda deliberately questioning outside Miranda that would not change the way in which you train officers and prosecutors? A: Hardly. Exhibit I at 280. The practice of questioning outside Miranda is widespread. Astonishingly, it is promoted by the very people who are charged with enforcing our laws. Despite a series of decisions from the Courts of Appeal and a strong statement from this Court, urging officers to obey the law, the trainers remain defiant. If this Court believes that Miranda is the law in California, it will have to say so in very clear terms, and it will have to couple its statement with a strong rule of exclusion. Hortatory phrases, such as those in Bradford, will not suffice. 11

II. STATEMENTS OBTAINED THROUGH QUESTIONING OUTSIDE MIRANDA CANNOT BE USED FOR IMPEACHMENT BECAUSE THE PRACTICE OF DELIBERATELY QUESTIONING OUTSIDE MIRANDA VIOLATES THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-INCRIMINATION. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously.... Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the ends justifies the means... would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face. [Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting)]. Questioning outside Miranda violates the Fifth Amendment. This practice is nevertheless rampant in California. This questioning occurs not because the officer misinterprets the individual s invocation of his or her personal Constitutional rights; indeed, the officer is acutely aware of the invocation of the rights protected by the Constitution, and of the United States Supreme Court s decisions interpreting those rights. This questioning occurs because the officer believes it is in society s best interest to violate the Constitution, and because the officer has been trained that only positive consequences will flow from violating the law. In Justice Brandeis words, this Court should resolutely set its face against this pernicious practice. 12

A. The Fifth Amendment Privilege Against Self-Incrimination Applies in the Police Station and Includes the Right to Consult Counsel Prior To, and During, an Interrogation. 1. The privilege against self-incrimination protects people against the coercive power of government. The Fifth Amendment privilege against self-incrimination is premised on the notion that the government must accord a certain level of respect to the dignity and integrity of its citizens. Miranda, 384 U.S. at 460; Cooper v. Dupnik, 963 F.2d 1220, 1238 (9th Cir.) (en banc), cert. denied, 506 U.S. 953 (1992). One can trace the privilege back to the early 1600s, when the English system of criminal procedure acquiesced to a popular demand for the abolition of the practice of interrogating accused persons. See Miranda, 384 U.S. at 442-43 (quoting Brown v. Walker, 161 U.S. 591, 596-97 (1896)). This popular demand sprang from the injustices that are inherent in interrogations: the ease with which the questions put to [an accused] may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him in fatal contradictions. Id. The framers of the Constitution and of the Bill of Rights incorporated this concern about compelled self-incrimination into the Constitution in an effort to make it a part of their fundamental law... [and clothe it] with the impregnability of a constitutional mandate. Id. In doing so, the framers sought to protect the privilege against illegitimate and unconstitutional practices [that] get their first footing... by silent approaches and slight deviations from legal modes of procedure. Id. at 459 (quoting Boyd v. United States, 116 U.S. 616, 635 (1886)). Therefore, the privilege has always been as broad as the mischief against which it seeks to guard. Id. at 459-60 (quoting Counselman v. Hitchcock, 142 U.S. 547, 562 (1892)). 13

Our Constitution and our criminal justice system demand that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Miranda, 384 U.S. at 460 (citing Chambers v. Florida, 309 U.S. 227, 235-38 (1940)); Cooper, 963 F.2d at 1238-39. This demand helps guarantee that a fair balance is struck between the individual and the state, that the government properly meets its burden, and that the inviolability of the human personality is protected and respected. Id. On the other hand, Any system of administration which permits the prosecution to trust habitually to compulsory self-disclosure as a source of proof must itself suffer morally thereby.... The exercise of the power to extract begets a forgetfulness of the just limitations of that power. The simple and peaceful process of questioning breeds a readiness to resort to bullying and to physical force and torture.... Thus the legitimate use grows into the unjust abuse; ultimately, the innocent are jeopardized by the encroachments of a bad system. Escobedo v. Illinois, 378 U.S. 478, 489 (1964) (quoting 8 Wigmore, Evidence (3d. ed. 1940) at 309; emphasis in original). A system that respects the privilege against self-incrimination incorporates the lesson of history... that a system of criminal law enforcement which comes to depend on the confession will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation. Id. at 488-89 (footnotes omitted). 2. The Fifth Amendment applies in the police station. The Fifth Amendment is not merely a trial right. It applies in various settings where the government might attempt to compel incriminating statements that may later be used in a criminal trial. See Miranda, 384 U.S. at 467. An individual can assert the protection of the Fifth Amendment in any 14

proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. Kastigar v. United States, 406 U.S. 441, 444 (1972). 4 The Fifth Amendment undoubtedly protects individuals in the police station. Miranda, 384 U.S. at 460-61; Cooper, 963 F.2d at 1239; see also People v. Boyer, 48 Cal. 3d 247, 271-72, cert. denied, 493 U.S. 975 (1989), and disapproved on other grounds, People v. Stansbury, 9 Cal. 4th 824 (1995). Moreover, a person most needs this protection in the police station because the modern interrogation environment was created for no other purpose than to intimidate and subjugate the suspect to the will of the examiner. See Miranda, 384 U.S. at 457-58. Police manuals point out that the principal psychological factor in a successful interrogation is being alone with the person under interrogation. Id. at 449. As the Court noted, this factor incommunicado interrogation was one of the salient features shared by the four cases reviewed in Miranda. Id. at 445. Another of the salient features was a police-dominated atmosphere. Id. at 445. This feature was reinforced by the techniques found in interrogation manuals used by the police. These manuals, reviewed by the Court, instructed the police on how to interrogate an individual who asserts his or her right to remain silent: The examiner is to concede him the right to remain silent. This usually has a very undermining effect [because it puts the suspect off guard].. 4 See also Lefkowitz v. Cunningham, 431 U.S. 801, 804-06 (1977) (Fifth Amendment violated when state employee discharged for failing to waive rights in public elections investigation); In re Gault, 387 U.S. 1, 49-50 (1967) (Fifth Amendment applied to juvenile proceedings); Malloy v. Hogan, 378 U.S. 1, 3 (1964) (Fifth Amendment applied in state s gambling investigation); Watkins v. United States, 354 U.S. 178, 187-88 (1957) (Fifth Amendment applied to Congressional hearings); McCarthy v. Arndstein, 266 U.S. 34, 40 (1924) (Fifth Amendment applied to civil proceedings); Counselman v. Hitchcock, 142 U.S. 547 (1892) (Fifth Amendment applied to grand jury proceedings). 15

.. After this psychological conditioning, however, the officer is told to point out the incriminating significance of the suspect s refusal to talk.... Few will persist in their refusal to talk if this technique is employed correctly. Id. at 453-454 (citing INBAU & REID, CRIMINAL INTERROGATION AND CONFESSIONS (1962), at 111). If the individual requests an attorney, the manuals instruct the interrogator to [suggest] that the subject tell the truth rather than get anyone else involved in the matter.... [T]he interrogator may suggest that the subject save himself or his family the expense of any such professional service, particularly if he is innocent of the offense under investigation. The interrogator may also add, Joe, I m looking for the truth, and if you re telling the truth, that s it. You can handle this by yourself. Id. at 454 (quoting INBAU & REID, at 112). The practice of deliberately questioning outside Miranda has reincarnated these tactics that the Court so heavily criticized. The practice of deliberately questioning outside Miranda implicitly, and even explicitly, sends the message that the refusal to talk is incriminating and that if the suspect was innocent, he would not need a lawyer. These messages reinforce the intimidating and isolating atmosphere inherent in custodial interrogations. That atmosphere makes the compulsion to speak in custodial interrogations greater than the pressures in courts or other official investigations, where there are often impartial observers to guard against intimidation and trickery. Id. at 461. For this very reason, the Miranda Court reiterated that the Fifth Amendment prohibition against compelled selfincrimination is fully applicable during the period of custodial interrogation. Id. at 460-61; Boyer, 48 Cal. 3d at 271. 16

3. The Fifth Amendment includes a right to consult counsel prior to interrogation and to have counsel present during interrogation. The right to have counsel present is indispensable to the protection of the Fifth Amendment privilege. Miranda, 384 U.S. at 469. Indeed, the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Fare v. Michael C., 442 U.S. 707, 719 (1979). This right to counsel is necessary to combat the inherent nature of custodial interrogations that can quickly overbear one merely made aware of his privilege. Miranda, 384 U.S. at 469. This right to counsel is part of an individual s Fifth Amendment rights. Edwards v. Arizona, 451 U.S. 477, 482 (1980). Furthermore, when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. Id. at 484; Minnick v. Mississippi, 498 U.S. 146, 153 (1990)( [W]hen counsel is requested, interrogation must cease and officials may not reinitiate interrogation without counsel present. ) B. An Individual Who Requests an Attorney Is Invoking the Fifth Amendment Privilege, and Police Must Honor the Individual s Desire to Remain Silent. At the point a person indicates he or she wishes to remain silent, that person indicates that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Miranda, 384 U.S. at 474. Additionally, an individual s indication that he wants an attorney is an indication 17

of his decision to remain silent. Id. Therefore, a request for an attorney is an invocation of the substantive Fifth Amendment privilege. Fare, 442 U.S. at 719; Cooper, 963 F.2d at 1240. To effectively combat the compelling pressures of a custodial interrogation, the police must fully honor the exercise of an individual s Fifth Amendment right. Miranda, 384 U.S. at 467. For that reason, the Court, in Miranda, announced a clear and simple procedure for the police to follow. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Id. at 473-74. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. Id. at 474. It is inconsistent with the Fifth Amendment for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel. Edwards, 451 U.S. at 485; Boyer, 48 Cal. 3d at 273. Edwards rule prohibiting further policeinitiated questioning, after invocation of the Fifth Amendment right to counsel, is simply a corollary to Miranda s admonition that [i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present. Arizona v. Roberson, 486 U.S. 675, 680 (1988) (quoting Miranda, 384 U.S. at 474). Furthermore, Miranda s requirements and the Edwards rule are clear and unequivocal. Id. at 682. Miranda s requirement that interrogation cease upon the invocation of the right to counsel has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. Id. at 681 (quoting Fare, 442 U.S. at 718). With respect to the Edwards rule, the United States Supreme Court has stated, Surely there is nothing ambiguous about the 18

requirement that after a person in custody has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication... with the police. Id. at 682 (quoting Edwards, 451 U.S. at 484-85). C. The Impeachment Use of Outside Miranda Statements Should Be Prohibited Because the Practice of Deliberately Questioning Outside Miranda Violates the Substantive Protections of the Fifth Amendment and Not Just Some Prophylactic Safeguard. When an officer intentionally disregards an individual s invocation of the Fifth Amendment privilege, that officer does not just violate a prophylactic safeguard; that officer violates the Fifth Amendment. As the Court pointed out in Miranda, custodial interrogations inherently occur in a coercive atmosphere. Miranda, 384 U.S. at 461. Unless adequate safeguards are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free will. Id. at 458. 1. Miranda s requirements express the substantive Fifth Amendment right to remain silent. The United States Supreme Court has at various times referred to the protections established by Miranda as prophylactic safeguards. Almost all these cases involved the Miranda warning and its language. E.g., Michigan v. Tucker, 417 U.S. 433 (1974); Oregon v. Elstad, 470 U.S. 298 (1984). While it is clear that the Court has used the term prophylactic to denote the prevention of conduct that might not meet the traditional standard of involuntariness under the Fourteenth Amendment, that does not mean that prophylactic is necessarily the equivalent of non-constitutional. See 19

Withrow v. Williams, 507 U.S. 680, 690-91 (1993). Indeed, the use of prophylactic rules in Constitutional law is well-established. 5 Furthermore, the few U.S. Supreme Court cases noting that Miranda s prohibition on further questioning is also prophylactic do not reach the issue of deliberate violations of Miranda. For instance, in Connecticut v. Barrett, the police read the defendant his Miranda rights. 479 U.S. 523, 525 (1987). The accused stated that he would not write any statement without counsel present but that he was willing to talk. Id. The Court found that Barrett had waived his Fifth Amendment right as to oral statements. Id. at 527. Barrett made clear his intentions, and they were honored by the police. Id. at 529. Hence, the police did not deliberately violate Miranda. Instead, the police complied, in good faith, with the requirements stated in Miranda, whether those requirements were constitutional or not. In Solem v. Stumes, the Court also referred to the Edwards prohibition on further questioning as prophylactic. 465 U.S. 638, 645 (1984). Solem, however, did not consider if the police violated the Fifth Amendment; it simply considered the retroactive application of Edwards. Id. at 650-51. The Court decided that Edwards should not apply retroactively in the same manner that it had previously decided that Miranda should not apply retroactively. See id. at 645, n.5. However, in so holding, the Court noted that the Edwards rule implemented pre-existing rights and was related to accurate determination in a 5 See David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190, 195-207 (1988) ( prophylactic rules are the norm, not the exception, in Constitutional law); Wayne R. LaFave, Constitutional Rules For Police: A Matter of Style, 41 SYRACUSE L. REV. 849, 856-60 (1990) (explaining why Miranda s prophylactic rules are appropriate and that the Fifth Amendment would be meaningless without Miranda). 20

trial. Id. at 644-45. Indeed, Edwards simply implements the Fifth Amendment s concern that a a system of criminal law enforcement which comes to depend on the confession will... be less reliable and more subject to abuses by the police. See Escobedo, 378 U.S. at 488-89. [P]rophylactic though it may be, by protecting the Fifth Amendment, Miranda protects a fundamental right. Withrow, 507 U.S. at 691; Cooper, 963 F.2d at 1240. The procedures and protection established in Miranda are only prophylactic in that they need not be followed if and only if replaced with 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. Miranda, 384 U.S. at 467, 478-79 (emphasis added). Withrow demonstrates the Constitutional nature of Miranda s proscriptions because it was a federal habeas corpus petition challenging a state conviction based principally on a Miranda violation. Withrow, 507 U.S. at 684-85. A federal court has jurisdiction to grant relief on such a claim only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. 2254(a). Since Miranda s requirements are not contained in either treaties or statutes, they must be based on the Constitution. Indeed, in Withrow, the Court kept Miranda claims within the scope of federal habeas corpus because Miranda is constitutionally based. Withrow, 507 U.S. at 691. Thus, when an officer disregards the Miranda requirements, that violation does not simply implicate a prophylactic safeguard; it also implicates the Fifth Amendment. Furthermore, in a pending case, United States v. Leong, 96-4876 (4th Cir.), the United States Department of Justice filed a supplemental brief (submitted to this Court as Exhibit L), regarding the constitutional status of Miranda. At issue in Leong is whether a federal statute, 18 U.S.C. 3501, is 21