Interrogation, Miranda, and Invocations of the Rights to Silence and to Counsel: The FBI Guidance in Context

By Robert Chesney
Thursday, March 24, 2011, 5:24 PM

A few thoughts worth bearing in mind in light of the FBI “guidance” memo Ben describes below and the considerable attention it is generating.

There is a tendency in this debate to conflate rules of evidentiary admissibility with rules that might more generally restrain the conduct of government agents.  So let’s disaggregate these strands.

Does the change in the FBI’s policy guidance have implications for what methods of interrogation could be used? 

No.  Regardless of Miranda, the most pressing issue here is the “voluntariness” rule.  Under the 5th Amendment, a person’s statement may not be admitted at trial if it was produced involuntarily.  In brief, that means the government overcome the person’s will in forcing the statement from him or her (a standard less demanding than, say, torture or even CID (cruel, inhuman, or degrading) treatment).  This rule existed before Miranda and it continues to exist today. Giving or not giving Miranda warnings doesn’t change it.  At the same time, this rule only manifests in terms of excluding coerced statements; it does not actually forbid the government from coercing a statement if for some reason it decides to do so in pursuit of some other aim (such as obtaining intelligence necessary to avert imminent harm).

So does the Fifth Amendment not speak to the possibility of government abuse of individuals? 

It does, actually.  It’s just under a distinct doctrinal strand.  The Fifth Amendment separately addresses this scenario through the concept of “substantive due process,” which as construed by the courts means that the Constitution outright forbids the government from doing things that shock the conscience (determined contextually), separate and apart from questions of the admissibility of the resulting evidence at trial.  Readers will recall that this was a central issue in some of the OLC opinions dealing with questions of torture and CID treatment in the post-9/11 period...

What then is the significance of when Miranda rights are read? 

There probably are few persons who don’t already have some awareness of their right to remain silent and their right to counsel.  From that narrow point of view, there’s no harm (from the government’s viewpoint) to reading Miranda rights, and some benefit; there’s no harm because the person probably already knows of their rights, and there is benefit in that any subsequent interrogation at least has the prospect of generating information that also may be admissible (assuming the problems noted above are not present).  But this is not the interesting question!  The interesting question, the one that is too often neglected, is whether the government intends to honor any invocation of the right to remain silent or the right to counsel (invocations that might occur whether Miranda rights have been read or not). Simply put, the government has always had the option of ignoring these rights if it thinks the benefits of doing so outweigh the costs.  The benefit, in theory, is obtaining quick access to information that can be used for purposes other than evidence at trial (note that Ben’s emphasis on the presentment issue enters into the discussion here as well).  The cost, in theory, is (i) ensuring that any resulting information probably will not be admissible at trial (but see Quarles below) and (ii) creating other headaches for a future prosecution such as suppression motions attacking other evidence as fruit-of-the-poisonous-tree or even motions to dismiss the indictment for outrageous government conduct.

Are statements derived from interrogations that ignore these limits necessarily inadmissible?  That is, will that cost necessarily have to be paid?  

This is where Quarles comes in.  Quarles established a “public safety” exception to the rule of inadmissibility, such that there is at least a brief window surrounding the arrest of a person during which statements obtained without Miranda warnings nonetheless may be admitted, so long as the questions were directed not at obtaining evidence but rather at addressing a threat to public safety.  The million dollar question is whether and to what extent the Supreme Court over time will prove willing to expand the Quarles window in terms of time (i.e., could it possibly extend over days rather than minutes?) and in terms of subject-matter (i.e., could it reach beyond questions such as “where did you hide the gun” to questions such as “tell me how you arrange financing for your operation”).  The FBI’s adjustment to its own guidelines from this point of view could be described as a gamble that a relatively more expansive approach to Quarles for limited circumstances will indeed be upheld by the judiciary.  That gamble might pay off, it might not; even if we knew the circumstances of whatever case in the future might finally put this issue before the judiciary, none of us can say for sure how the courts will respond.  And, of course, the adjustment to the Guidelines might also be described as simply a policy decision to run greater risks of adverse consequences in subsequent prosecutions in circumstances where obtaining intelligence is thought to be more likely to occur without providing access to counsel and honoring the right to silence (a judgment that could be right or wrong both in terms of whether the more aggressive approach actually would produce more and quicker information, and wrong in terms of whether any such benefits are worth the risks of disrupting the prosecution’s prospects).     

A final thought: Efforts by the executive branch and Congress to stake out positions on the point are important but by no means ultimately dispositive, since the ultimate issue turns on a rule of constitutional doctrine.  That said, and apropos of Ben’s critique, I do think that legislation is more likely than solo executive action to generate a bit of deference from the judiciary as it later clarifies the scope of that rule. 

All that said, I wrote this all rather fast, and if readers feel there are misstatements to be corrected or useful elaborations to be added, I’m happy to hear about it will post revisions as needed.  In the meantime, I hope this provides some useful context for the FBI guidelines story.