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LEXSEE 85 IOWA L. REV. 175
Copyright (c) 1999 Iowa University
Iowa Law Review
October, 1999
85 Iowa L. Rev. 175
LENGTH: 38882 words
ARTICLE: The Statute That Time Forgot: 18 U.S.C. § 3501 and the Overhauling of Miranda
NAME: Paul G. Cassell *
BIO:
* Copyright (c) 1999 and all rights reserved by Paul G. Cassell. Professor of Law, University of Utah
College of Law (cassellp@law.utah.edu). This Article comments on a number of cases in which I represented
various clients, e.g., the Washington Legal Foundation and several United States Senators, a fact that is noted
with specific footnotes where applicable. Thanks to Akhil Amar, Doug Beloof, Paul Kamenar, Yale Kamisar,
Scott Matheson, Michael McConnell, Michael O'Neill, Mike Ramsey, George Thomas and others who must
remain nameless for their help, and to Shane Krauser for research assistance.
This Article is dedicated to my ailing friend, Joe Grano, whose brilliant book, CONFESSIONS, TRUTH, AND
THE LAW (1993), makes the compelling doctrinal case against Miranda. Joe predicted, with sadness, that Miranda's
exclusionary rule would not be reformed in his lifetime. Id. at vii. Hang in there Joe, you may be proven wrong yet.
SUMMARY:
... On February 8, 1999, the United States Court of Appeals for the Fourth Circuit handed down its landmark opinion
in United States v. Dickerson, concluding that Miranda no longer governs federal cases. ... Miranda, noting the gravity
of the officer's look, shifted uneasily in his chair and then asked, "How did I do?" ... The Court enforced these new
rights with an exclusionary rule: the suppression of the suspect's confession if police deviated from the requirements. ...
Judge Michael dissented, arguing the court should not have reached the issue of the statute's application where it was
not presented by the Department of Justice. ... For example, two leading Miranda scholars have recently written articles
discussing the Dickerson opinion. ... While federal law enforcement agencies "have encountered difficulties" with
extensions of Miranda forbidding reinitiation of questioning after invocation of a right to counsel, the
warning-and-waiver requirements themselves have not proven difficult to administer. ... The Court conceded that
Miranda might require suppression of a confession that was not involuntary, the reason the decision has been called
prophylactic. ... As the Department of Justice explained in connection with the Fourth Amendment exclusionary rule,
devices for preventing constitutional violations include:
... As the Department of Justice explained in connection with the Fourth Amendment exclusionary rule,
"the remedial landscape has changed considerably" since the early 1960s. ...
HIGHLIGHT: "In any criminal prosecution brought by the United States . . . a confession . . . shall be admissible in
evidence if it is voluntarily given."

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85 Iowa L. Rev. 175, *

-- 18 U.S.C. § 3501
TEXT:
[*177] Scholars and jurists have criticized Miranda for 33 years, but the most powerful attack appeared unexpectedly
earlier this year. On February 8, 1999, the United States Court of Appeals for the Fourth Circuit handed down its
landmark opinion in United States v. Dickerson, n1 concluding that Miranda no longer governs federal cases. Instead,
the court concluded a statute Congress passed in 1968 -- often called simply § 3501 n2 -- requires the admission of all
"voluntary" confessions without regard to technical compliance with the Miranda procedures. Congress acted within its
powers in enacting such a statute, the court explained, because the Miranda decision itself disclaimed any intent to
"create a 'constitutional straitjacket'" n3 and "encouraged Congress and the States to continue their laudable search for
increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our
criminal laws." n4 As a result, the Fourth Circuit had "little difficulty" in finding that "§ 3501, enacted at the invitation
of the Supreme Court and pursuant to Congress's unquestioned power to establish the rules of procedure and evidence in
federal courts, is constitutional." n5 Applying the statute, the court refused to suppress voluntary statements made by
Charles Dickerson inculpating him in a string of armed bank robberies, even though he had, possibly, not received his
Miranda warnings until after he made the statements. n6
The court's opinion prompted considerable reaction from Miranda's supporters across the country. Professor Yale
Kamisar, perhaps the nation's leading academic defender of Miranda, called [*178] the decision "stunning" n7 and a
"body blow" to the Warren Court's ruling. n8 Professor Stephen Schulhofer described it as "the most surprising and
ill-considered instance of 'judicial activism' in recent memory." n9 For good measure, the New York Times intoned that
the ruling was "extraordinarily regressive" and "defied both the Supreme Court's landmark decision in Miranda v.
Arizona and the Constitution's limits on judicial authority." n10
Such negative reactions seem excessive, and their validity will soon be put to the test before the Supreme Court.
Dickerson's attorney has filed a petition for certiorari, arguing the statute should be struck down as unconstitutional.
n11 As of this writing, the Court has agreed to review the case, n12 setting the stage for the Court's most
closely-watched criminal procedure decision in recent times.
This Article contends that the Court should uphold § 3501 against constitutional challenge and apply it, rather than
Miranda, as the governing standard for admitting confessions in federal courts. It reaches this conclusion by exploring
one of the most curious features of the recent Dickerson ruling: that it came not at the behest of the United States, as
represented by the Department of Justice (the Department), but rather of the Washington Legal Foundation ("WLF"), an
amicus curiae. n13 One would expect the Department to support a statute passed to assist federal prosecutors by
admitting vital evidence in federal prosecutions. To the contrary, however, over the last two years the Department has
prohibited its prosecutors from defending the statute in cases like Dickerson, and has asserted that the statute is
unconstitutional. Indeed, after the Fourth Circuit's favorable ruling on the statute, the Department joined defendant
Dickerson in asking the full Fourth Circuit to review [*179] and reverse the panel decision. n14 The Department's
peculiar posture of supporting a criminal defendant has continued in the Supreme Court. There, the Attorney General,
over the strong objection of U.S. Attorneys around the country, n15 filed a brief urging the Court to grant Dickerson's
petition for certiorari and strike down the statute. The brief even gratuitously comments on issues beyond the § 3501
question, praising Miranda as a boon to law enforcement. n16 How the Department's alliance with the bank robber it is
seeking to prosecute will be viewed by the Supreme Court has yet to be seen. n17 This maneuver did not find favor
with the Fourth Circuit, which said that the action of the Department in "prohibiting the U.S. Attorney's Office from
arguing that Dickerson's confession is admissible under the mandate of § 3501 . . . elevated politics over law . . . ." n18
The Justice Department's position troubled the Fourth Circuit because, under our system of separated powers, it is the
duty of the Executive Branch to "take care that the Laws be faithfully executed." n19 As a consequence of that
constitutional obligation, the Department has historically defended the constitutionality of Acts of Congress where
"reasonable" arguments can be made on their behalf. n20 This Article explores the Department's failure to defend §
3501 in the Fourth Circuit and the Supreme Court, and concludes that the Department lacks a plausible basis for its

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position. Reasonable -- indeed, compelling -- arguments support the conclusion that § 3501 is a proper exercise of
congressional power and that its enforcement is vital to the protection of public safety. This was, in fact, the position of
the Department of Justice for many years.
[*180] In Part I, this Article explores the almost-forgotten history leading to Miranda and the congressional
reaction reflected in § 3501. Part I reports, apparently for the first time, some of the details of the investigation of Ernest
Miranda's crimes, as recounted by the detective who interrogated him. It then briefly reviews the Supreme Court's
decision in Miranda and the congressional response in § 3501.
The remaining Parts of this Article turn next to the various reasons that the Justice Department and its supporters in
the academy have proffered as grounds for refusing to defend the law. The Article first considers the claim that
declining to defend § 3501 accords with long-standing Justice Department policy. When asked after Dickerson about
the Department's failure to defend the statute, Attorney General Reno asserted: "In this administration and in other
administrations preceding it, both parties have reached the same conclusion [that the statute could not be defended]."
n21 This is inaccurate. In fact, the well-settled policy of the Department was to defend the statute, a litigation posture
that had produced a favorable reported appellate decision in the Tenth Circuit. Part II reviews the Department's
venerable position that the statute was constitutional, a position that the political appointees in the current
administration recently reversed, overruling career prosecutors.
The Article next turns to the critical issue of the statute's constitutionality. The Department, joined by academic
defenders of Miranda, takes the position that the statute rests on constitutional "foundations" or "underpinnings" that a
mere Act of Congress cannot override. n22 Part III explains why the Fourth Circuit in Dickerson correctly rejected this
position and held that § 3501 is constitutional. Two arguments strongly support this result. Part III.A develops the
argument, accepted in Dickerson, that Congress has the power to override the Miranda rules. The Supreme Court has
repeatedly held that the Miranda rights are not constitutional rights [*181] but rather are "prophylactic" rules designed
to "safeguard" constitutional rights. Given Congress' undoubted power to establish rules of evidence for federal courts,
§ 3501 survives constitutional challenge. Part III.B provides an independent argument for this same conclusion, an
argument not addressed by the Dickerson court. The Supreme Court in the Miranda decision itself invited "Congress
and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual
while promoting efficient enforcement of our criminal laws" n23 by drafting alternatives to Miranda. Section 3501,
considered not by itself (as its critics are wont to do), but as part of a full package of measures covering questioning by
federal police officers, is one such reasonable alternative. Part III.C then briefly explains why upholding the
constitutionality of the statute will not inadvertently "unleash" the police to violate constitutional rights.
A final objection raised by the Department and the critics of the statute is that § 3501 need not be defended because
federal prosecutors can prevail even laboring under the Miranda exclusionary rule. n24 This argument wrongly diverts
focus away from the cases at which § 3501 was targeted: cases like Dickerson, in which dangerous criminals can escape
justice if they can take advantage of the Miranda exclusionary rule. More generally, Miranda's procedural requirements
seriously harm public safety. Part IV explains why Miranda's heavy toll on this country's ability to prosecute serious
crimes would be reduced if the Department raised and the courts applied § 3501.
I. THE FORGOTTEN HISTORY BEHIND MIRANDA AND § 3501
Discussion of the Miranda rules conventionally starts with the Supreme Court's opinion and ignores the backdrop
to the decision. This occurs in part because Miranda broke with past precedents and constitutional traditions. n25
Historians and legal scholars pay attention, appropriately enough, to the Court's ruling, but do so to the exclusion of the
important events that set it in motion. The tendency to focus purely on the legal arguments of the Court has also
produced a curious distortion in the way in which Ernest Miranda is conventionally portrayed. Lawyers typically regard
him as the central dramatis personae in the Supreme Court's most famous [*182] criminal law decision, n26 rather
than as a dangerous criminal who robbed and raped a number of women. This view of Miranda is captured in the
perhaps apocryphal story of the woman who, when told that Miranda had died, replied, "Oh, that's terrible, after all he's

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done." It is also captured in the Miranda opinion itself, where Miranda is charitably described as a "seriously disturbed
individual with pronounced sexual fantasies." n27 The victims of this "disturbed" individual have not, to my
knowledge, ever had their story told. n28
It is, therefore, interesting to depart from the conventional approach and to consider Miranda from a different
perspective. Since the Court's 1966 decision requiring the Miranda warnings, scholars have written much about the
judicial points of the case; however, few people, including the police officers and attorneys who work with the results of
the decision, know the details of the actual crimes and investigation. I have come into possession of a first-hand account
of the interrogation of Ernest Miranda, written by the interrogating officer: former Phoenix police Captain Carroll F.
Cooley. n29 Because of its potential historical value, Captain Cooley's recitation of the events leading up to the
Supreme Court decision follows here verbatim. n30
[*183] * * * *
A. CAPTAIN COOLEY'S FIRST-HAND ACCOUNT OF THE INTERROGATION OF ERNEST MIRANDA
This is not an effort to defend or justify police actions, but rather to give a true account of what happened, and
perhaps shatter myths as to the abuses to which Miranda was allegedly subjected.
1. The Crime
Sandra Smith, n31 eighteen, a shy, naive, withdrawn girl, left the Paramount Theater, where she worked selling
tickets, at 11:45 p.m. on March 2, 1963. She and another employee walked the two blocks to the downtown Phoenix,
Arizona bus stop and boarded a bus for Northeast Phoenix, where she lived.
Sandra left the bus, alone, at 7th Street and East Marlette. She began the five-block walk along the unlighted street.
A line of large overhanging trees accentuated the darkness. A car pulled slowly from behind a nearby ballet school,
passed, and stopped just in front of her as she walked. A man Sandra later guessed to be twenty-seven or twenty-eight
got out, grabbed her, and pressed something sharp against her throat. "Don't scream," he said. "Don't scream and you
won't get hurt." Opening the back door, he ordered her to get in and lie down. Shocked and frightened, she complied.
He then tied her wrists and ankles with rope, entered the car and drove off. She was crying, begging him to let her
go, but he was unmoved. "Be quiet," he told her repeatedly. "Just be quiet and I won't hurt you." Some twenty minutes
later he stopped the car in a deserted area northeast of the city.
Sandra managed to work free of the ropes, but to no avail. The man exited the car, got in the back seat with her, and
ordered her to remove her clothes. She refused. She was crying and pleading with him to let her go. He then removed
her clothes for her. Within moments, the suspect forcibly raped Sandra Smith. He then put on his clothes, ordered her to
get dressed, and drove her back to the area where he had picked her up.
The young man asked Sandra if she had any money. She gave [*184] him the four dollars in her purse. He stopped
the car, turned to her, and said, "Whether you tell your mother what happened or not is none of my . . . business, but
pray for me." She left the car, and he drove off. She did not see which way. Hysterical, she ran to the nearby home of
her older married sister, with whom she was living, and told her what happened. Her sister telephoned the Phoenix
Police Department.
2. The Investigation
A uniformed officer responded and routinely called detectives to make the investigation. Sandra was taken to a
hospital for examination. Detectives Kyle Gourdoux and Don Davis made their report and went home.
Detective Carroll F. Cooley, twenty-seven, a five-year veteran police officer in the Crimes Against Persons Detail,

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came to work on the Monday morning of March 4, 1963. His boss, Sergeant Seymour Nealis, assigned him to
investigate the Sandra Smith rape case.
Cooley began with a routine interview with Sandra. She now recalled her attacker as a Mexican or possibly Italian,
with dark, curly hair, combed back, about twenty-five or so, average height and build, wearing a white T-shirt and blue
jeans. She said the car was an old four-door sedan, light green, with a piece of rope across the back of the front seat. She
added that the upholstery was a light beige with vertical stripes; there were paint brushes on the floor and she
remembered smelling turpentine.
Police talked with Sandra's sister, who remembered once telling Sandra that she would have a better chance of
escaping injury, even death, if she didn't resist a rapist. The sister, however, was unable to offer police much help.
The investigation continued, producing few results. Police questioned the other employee who rode with Sandra on
the bus, but he had seen nothing suspicious. Sandra viewed photographs of known sex offenders but none looked like
the suspect. Detectives showed her several different makes and models of cars to see if she could identify the one the
suspect used. She could not. A week passed. Police found no substantial leads or possible suspects. Detectives routinely
noted a marked similarity between Sandra's description of her assailant and the descriptions given by several other
women who reported being accosted and robbed. However, these incidents had all occurred in downtown Phoenix,
some distance from where Sandra was attacked.
Sandra returned to her job, but observed caution. She no [*185] longer walked home alone from the bus stop.
Dave Henry, n32 a relative, waited to accompany her each night. On Saturday, March 9, 1963, a week after the assault,
Dave saw an old, light-colored sedan with a lone occupant drive slowly back and forth by the bus stop several times. He
mentally noted the license number as DFL-317. Shortly thereafter, Sandra stepped from the bus. As they walked home,
Dave spotted the car again, parked on a sidestreet. Pointing, he asked her if it could be the car the kidnapper used. She
looked carefully at the car as they walked toward it for a closer look. "It could be the one," she replied. "It looks the
same." At that moment, the driver started the car and sped away. Dave immediately called the police.
The license number Dave noted was registered to a 1958 Oldsmobile. Unlike Sandra, Dave was more familiar with
cars. He was sure the car was not an Oldsmobile, but rather a 1953 Packard, similar to one owned by a friend of his.
The following Monday, March 11th, Dave Henry told Detective Cooley he was quite sure about the car being an
old model Packard, and that the letters of the license plate had been DFL. He was less certain about the three numbers.
Cooley showed Dave a 1953 Packard and verified that this was the make and model car he had seen. Police also
photographed the car for use in a bulletin to be sent to all officers.
Detective Cooley asked the Motor Vehicle Department to pull its records on all Packards with license numbers
beginning with the DFL prefix. They found one, registered to a Twila M. Hoffman on North LaBaron Street in the
nearby community of Mesa, Arizona. The car was a 1953 Packard, license DFL-312 -- one digit off from the number
reported by Dave Henry.
The next day, March 12th, Detective Cooley and a partner, Detective Bill Young, drove to the address given for
Twila Hoffman. It was vacant. Neighbors said the people who lived there, Ernie Miranda and his wife, Twila, had
moved out on Sunday, March 10th. They had used a truck marked "United Produce" to haul their things away, but no
one knew where they were now living.
The detectives routinely checked the name "Ernest Miranda" out with the Mesa Police Department, and learned that
the name had a background: twenty-three year old Mexican male, juvenile record of assault with intent to commit rape
in 1956, a juvenile arrest in Los Angeles, California for robbery in 1957, and an arrest [*186] and conviction for auto
theft in Tennessee in 1959, resulting in a one-year sentence to federal prison.
The detectives returned to the downtown Phoenix area and stopped at the United Produce Company where they

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learned that Ernest Miranda was employed there as a dock worker on the evening shift. The company did not have his
address, but employees knew he had just moved. They had loaned him one of their trucks to move his family from Mesa
to Phoenix.
On Wednesday morning, March 13, 1963, the detectives continued their investigation, stopping to check with the
Phoenix Post Office on the slim chance that Miranda might have filed a change of address card. It paid off. The card
had been filed, directing them now to the new address on West Mariposa Street in Phoenix. As the detectives drove up,
they saw a light gray 1953 Packard four-door parked in the driveway. The license number was DFL-312. Cooley noted
the light colored upholstery: it had a vertical pattern. There was also a cord attached to the rear of the front seat, similar
to what Sandra had described as a rope handle.
A woman carrying a small baby answered the door. After the officers introduced themselves and asked to see
Ernest Miranda, she told them he was asleep, but offered to awaken him if necessary. The woman disappeared back into
the house. Several minutes later, a young man came out, clad only in a pair of khaki trousers, and asked them what they
wanted. Detective Cooley asked him if he was Ernest Miranda. He replied that he was. The officer then asked him if he
would come down to the police station with them where they could talk.
"What's this all about?" Miranda asked.
"It concerns a police investigation, and we would rather not discuss it here, in front of your family," replied the
detective.
"O.K." said Ernest. "Let me get dressed first, and I'll be right with you." As he turned to go back in the house, he
said "Come on in," inviting the officers to wait for him in the living room, where they waited until he returned a short
time later, having added a pair of shoes and a white T-shirt to his attire.
Miranda rode alone in the back seat, unrestrained, making small talk with the two detectives in the front seat. He
was not placed under arrest, and, as a result, if he had decided not to go downtown with them, they could not have
rightfully made him go involuntarily.
Thus far, the detectives had a man with access to a car that might have been the one seen under suspicious
circumstances near [*187] the scene of the kidnapping -- a full week later. The license number, although similar, was
not the one Dave Henry gave police, and the car was not the color Sandra reported the suspect's car to be. Miranda did
have a record, and did fit the general description of the suspect, but even with the composite evidence, Detective Cooley
still did not feel he had enough probable cause to arrest him. If he had, Miranda would have been handcuffed, and one
of the detectives would have ridden in the back seat with him. They avoided discussion of the crimes under
investigation, and at one point, Detective Young told Miranda he did not have to talk to them if he did not want to.
Arriving at the Main Police Building, the officers took Miranda to the Detective Bureau and seated him at a table in
Interview Room # 2, a 12-foot square room with a two-way mirror in the door for viewing line-ups. Detective Cooley
seated himself in one of the other chairs in the room and began the interview at approximately 10:30 a.m.
He told Miranda what Sandra Smith reported had happened to her on the night of March 3, 1963, and that through
the license number, police had identified Miranda's car as the one used by the man who picked Sandra up that night.
Miranda emphatically denied knowing anything about the incident, and claimed that he was working that night at
United Produce.
Detective Cooley continued talking with Miranda for over thirty minutes, asking him about the Sandra Smith case
and others in which the suspects' descriptions were similar to Miranda. They discussed Miranda's past record for assault
with intent to commit rape. Cooley advised Miranda of his potential need of psychiatric help, but expressed that he
knew Miranda was the perpetrator of several of these offenses (which was not true; he only suspected it). Miranda was
adamant in his denial. He maintained his innocence and admitted nothing.

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The interview was short; however, it enabled the detectives to establish a degree of rapport with Miranda because
of the cordial, sympathetic approach used in talking with him. Because he had made no admissions, the officers asked if
he would consent to being viewed by the victims while he stood in a line-up with several other men of his general
description. He agreed, but only after the officers told him they would take him home if none of the victims could
identify him.
While Detective Young secured three prisoners from City Jail to stand in the line-up, Cooley tried to locate the
victims of the cases [*188] in which Miranda was a suspect. He could only find two on such short notice: Sandra
Smith and a Betty McDermitt, n33 who was robbed at knifepoint by a Mexican male on the night of November 27,
1962. The suspect tried to rape her and took eight dollars from her.
Sandra Smith and Betty McDermitt arrived at the station shortly before 11:30 a.m. when the line-up was held. The
detectives told Miranda that he could choose his position in the line by selecting one of the four large numbered cards
that would be worn around the necks of the participants for identification. He chose # 1, the first position in line.
The line-up was held in the same room as the initial interview. Sandra Smith viewed the line-up first. Looking
through the two-way glass, she paused momentarily, and said she thought number one looked like the man. She was not
positive. She said if she could hear him speak, she might be more sure. Betty McDermitt then came in and looked
through the glass. She also thought number one looked like the same man who robbed and tried to rape her, but could
not be positive.
The officers were right back where they started, left with nothing but their suspicions. Detective Cooley asked the
two women to wait while he talked further with Miranda. Somewhat dejected and frustrated, unsure of what approach to
use, Cooley returned to the interview room where Miranda waited, alone. Miranda, noting the gravity of the officer's
look, shifted uneasily in his chair and then asked, "How did I do?"
"Not too good, Ernie," replied Cooley, picking up on Miranda's obvious concern.
"They identified me then?" Miranda asked.
"Yes Ernie, they did," Cooley replied gravely.
"Well," said Miranda resignedly, "I guess I'd better tell you about it then."
"Yes Ernie, I think you should," replied the officer.
And thus ended the chain of events leading to the confession of Ernest Arthur Miranda.
3. The Confession
Miranda told Detective Cooley that he was driving around Northeast Phoenix when he saw a woman walking alone
down a dark street. He said he pulled up and stopped just ahead of her, and got [*189] out of the car. When she came
close enough, he said he told her not to make any noise, to get in the car and that he would not hurt her. He conveyed
how he tied her ankles and wrists with a piece of rope and then drove to an isolated place in the nearby desert where he
stopped and got in the back seat.
He said he told her to undress, but she refused so he removed her clothes. She begged him not to rape her, he said,
telling him she had never had relations with a man before, but he did not believe her. Miranda said he tried to have
intercourse but was unable to at first. He told Cooley he was successful the second time, and after completing the act, he
took the woman back to the area where he found her and let her go after taking four dollars from her purse. Miranda
looked up as he finished telling the story, and added, "I asked her to pray for me."
Detective Cooley then told Miranda he had also been identified by another young woman who was robbed at

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knifepoint on November 27, 1962, by a suspect who had also tried to rape her. Miranda went on to recite how he forced
his way into Betty McDermitt's car, put his hand over her mouth, and told her not to scream and that she would not be
hurt. He said he drove her car into a nearby alley and stopped, intending to rape her, but she talked him out of it so he
simply took her money.
Detective Cooley asked Miranda if he used a knife to rob this woman. He replied that it was only a fingernail file,
held up his sleeve, which he used to simulate a knife by pressing the point against the woman's side when he got in the
car.
The officers questioned Miranda about other crimes in which his description and actions were similar to the
suspects', but he denied knowing anything about them. However, after police confronted him with one case in which the
suspect had a tattoo identical to one on Miranda's arm, which occurred at exactly the same time of day as the attack on
Betty McDermitt -- 8:45 p.m. -- Ernest did admit to the crime. He said he used the fingernail file again to simulate a
knife, but was frightened away by a passing motorist before getting any money. The detectives did not charge Miranda
with this offense, as the officers were unable to locate the victim.
The detectives then asked Miranda if he would give them a written statement as to his actions in the incident with
Sandra Smith. He readily agreed and they gave him a standard form on which was written Miranda's name, the names of
the officers, and the date and time: March 13, 1963, 1:30 p.m. The case -- Rape D.R. # 63-08380 -- was entered, and the
location, Interview Room # 2, followed [*190] by a typed paragraph:
I, [Miranda's signature], do hereby swear that I make this statement voluntarily and of my own free will,
with no threats, coercion, or promises of immunity, and with full knowledge of my legal rights,
understanding any statement I make may be used against me. I, [Miranda's signature], am [23] years of
age and have completed the [8th] grade in school.
[EDITOR'S NOTE: TEXT WITHIN THESE SYMBOLS [O> <O] IS OVERSTRUCK IN THE SOURCE.]
Ernest Miranda wrote the following statement in longhand, initialed at the beginning and end, and at one point at
the beginning where he made an error:
eam. [O> Picked <O] eam. Seen a girl walking up street. Stopped a little ahead of her got out of car
walked towards her grabbed her by the arm and asked to get in car. Got in car without force tied hands
and ankles. Drove away for a few mile. Stopped asked to take clothes off. Did not, asked me to take her
back home. I started to take clothes off her without any force and with cooperation. Asked her to lay
down and she did. Could not get penis into vagina got about 1/2 (half) inch in. Told her to get clothes
back on. Drove her home. I couldn't say I was sorry for what I had done but asked her to pray for me.
eam.
The form reads next:
"I have read and understand the foregoing statement and hereby swear to its truthfulness. [Signed] Ernest
A. Miranda
WITNESS: [Signed] Carroll Cooley [Signed] Wilfred M. Young # 182
This is Ernest A. Miranda's written confession to the kidnap, rape and robbery of Sandra Smith. Notably, it covers
only one of the incidents. He was not asked to include the other crimes to which he confessed verbally, for several
reasons.
First, the detectives' main concern was the rape case. Because they could not establish attempted rape, but only
robbery, in the Betty McDermitt case, that case was the responsibility of the Robbery Detail. In addition, they did not

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wish to risk jeopardizing Miranda's successful prosecution by opening his written confession to attack because of the
mention of other, unrelated crimes.
[*191] 4. The Arrest
After completing the statement, officers brought Sandra Smith into the room and asked Miranda to state his name,
and if he recognized the woman, whom they had not identified to him. He stated his name and said he did recognize her.
After leaving the room, Sandra told Detective Cooley she was positive Miranda was the man who raped her; she was
sure the moment he spoke.
The police then brought Betty McDermitt into the room, and the scene repeated. Miranda said he also recognized
her, and he even repeated some of the things she said to him that caused him to change his mind about raping her. She
also identified him as her assailant, and said she had forgotten some of the things she said to him the night she was
attacked, until he reminded her of them.
Detective Cooley then told Ernest Miranda that he was under arrest for the kidnap, rape and robbery of Sandra
Smith and the robbery of Betty McDermitt. He was handcuffed, taken to the Fourth Floor City Jail, and booked on those
charges.
****
B. THE SUPREME COURT'S DECISION
With Detective Cooley's account of the facts in mind, we can return to the events that are more generally known. At
Miranda's trial for the rape, the court admitted the confession Detective Cooley had obtained over objection. Miranda
was convicted and sentenced to twenty years in prison. The Arizona Supreme Court affirmed the conviction, concluding
that the confession was voluntary and Miranda was not entitled to counsel because he never asked for a lawyer. n34
The Supreme Court then granted Miranda's petition for certiorari (along with three other consolidated cases). Miranda's
brief on the merits argued that the detectives violated his Sixth Amendment right to counsel in obtaining his confession.
Miranda's skilled appellate lawyers did not even cite the Fifth Amendment, let alone develop an argument for its
application. n35 Yet on June 13, 1966, the Court handed down its landmark, 5-to-4 decision interpreting [*192] the
Fifth Amendment in Miranda v. Arizona. n36 The decision had a decidedly unusual, legislative feel about it, as
Professor Joseph Grano has nicely summarized:
Miranda's opening paragraph informed the reader that the case had something to do with the Fifth
Amendment and the admissibility of statements produced by custodial interrogation. Without describing
the specifics of what the police had done in the four cases before the Court, subsequent pages of the
opinion then . . . summarized the holding, reviewed precedent, analyzed the history of the Fifth
Amendment, surveyed police manuals to present a general picture of police interrogation, imposed
various mandates by way of dicta . . . and examined the law in other countries to show that the holding
was really not that extreme. After more than fifty pages, the opinion acknowledged that the preceding
discussion, which included all the Court's new rules, had occurred without "specific concentration on the
facts of the cases before us." Belatedly turning to the facts, the opinion then spent only eight pages in
concluding that the police in each case had obtained the confession in violation of the new rules. n37
The dramatic changes wrought by Miranda are best understood by comparing the new rules to those in place before
the decision. Before June 13, 1966, police questioning of suspects in custody was covered by the "voluntariness"
doctrine. n38 Under this approach, courts admitted a defendant's confession into evidence only if it was voluntary. In
making this voluntariness determination, courts considered a host of factors. If police officers used physical force or the
threat of force, for example, courts almost automatically deemed the resulting confession involuntary; lesser pressures
(or inducements) could also lead to a finding of involuntariness. n39 Courts also considered such factors as length of
interrogation and types of questions [*193] asked in making the voluntariness determination.

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The Miranda decision largely replaced this case-by-case voluntariness analysis with general procedural
requirements governing law enforcement questioning of suspects in custody. The required warnings are familiar to
anyone who has ever watched a police show on television:
You have the right to remain silent.
Anything you say can be used against you in a court of law.
You have the right to talk to a lawyer and have him present with you while you are being questioned.
If you cannot afford to hire a lawyer, one will be appointed to represent you before you answer any
questions. n40
While the Miranda warnings are the most famous part of the decision, even more important are the additional "waiver"
and other requirements that the Court imposed. n41 After reading a suspect his rights, an officer must ask whether the
suspect agrees to waive those rights. If the suspect refuses to waive -- that is, declines to give his permission to be
questioned -- the police must stop questioning. n42 At any time during an interrogation, however, a suspect can halt
the process by retracting his waiver or requesting a lawyer. From that point on, the police cannot suggest that the
suspect reconsider. The Court enforced these new rights with an exclusionary rule: the suppression of the suspect's
confession if police deviated from the requirements. n43 The Court, however, made clear that its approach was not the
only acceptable one. The majority held that "the Constitution does not require any specific code of procedure for
protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free . . . to
develop their own safeguards for the privilege, so long as they are fully as effective as those described above . . . ." n44
In disposing of Miranda's case, the Court concluded that, because the officers [*194] questioning Miranda had not
followed the (heretofore unannounced) rules, his conviction could not stand.
C. THE CONGRESSIONAL RESPONSE
The Court's ruling ignited a firestorm of controversy. Justice Harlan warned in his dissenting opinion that "viewed
as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the
competing interests, imposed over widespread objection, at the very time when judicial restraint is most called for by
the circumstances." n45 Justice White concluded that "the Court's holding today is neither compelled nor even strongly
suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a
departure from a long line of precedent . . . ." n46 He also predicted that "in some unknown number of cases the
Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to
repeat his crime whenever it pleases him." n47 Critics outside the Court also immediately predicted the requirements
would put "handcuffs on the police," n48 and prevent prosecution of countless dangerous criminals. n49
The uproar over Miranda did not escape the notice of Congress. The Senate Judiciary Committee's Subcommittee
on Criminal Laws and Procedures held hearings in 1967, during which numerous Senators unequivocally denounced the
Miranda decision. n50 In addition, various law enforcement witnesses explained how the Miranda rules hindered their
efforts to apprehend dangerous criminals. n51
To mitigate the decision's harmful effects on law enforcement, the Senate Judiciary Committee drafted the
legislation which ultimately became § 3501. The rationale for the reform was stated by [*195] the accompanying
Committee report:
Crime will not be effectively abated so long as criminals who have voluntarily confessed their crimes are
released on mere technicalities. The traditional right of the people to have their prosecuting attorneys
place in evidence before juries the voluntary confessions and incriminating statements made by
defendants simply must be restored. . . . The committee is convinced . . . that the rigid and inflexible
requirements of the majority opinion in the Miranda case are unreasonable, unrealistic, and extremely
harmful to law enforcement. n52

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Senator McClellan, the principal sponsor of the measure, privately summarized his view of the bill more succinctly,
calling it "my petition for rehearing" on Miranda. n53
The anti-Miranda legislation was included as Part of Title II of the Omnibus Crime Control and Safe Streets Act, a
broad criminal justice reform bill that included not only a provision on Miranda, but also legislation divesting the
federal courts of jurisdiction to review state court decisions admitting confessions. The jurisdiction-stripping part of the
package was eliminated, but the legislation intended to replace Miranda, as well as to overrule the McNabb-Mallory
n54 line of cases excluding confessions obtained as the result of unreasonable delay in presenting a suspect to a
magistrate, n55 and the United States v. Wade n56 case creating a right to counsel during police line-ups, remained
intact. n57 After debates in the Senate and the House, a strong bipartisan majority passed the legislation. n58
The statute Congress approved -- § 3501 -- provides in pertinent part:
(a) In any criminal prosecution brought by the United States or by the District of Columbia, a confession,
as defined [*196] in subsection (e) hereof, shall be admissible in evidence if it is voluntarily given.
Before such confession is received in evidence, the trial judge shall, out of the presence of the jury,
determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily
made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence
on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury
feels it deserves under all the circumstances.
(b) The trial judge in determining the issue of voluntariness shall take into consideration all the
circumstances surrounding the giving of the confession, including
(1) the time elapsing between arrest and arraignment of the defendant making the
confession, if it was made after arrest and before arraignment, (2) whether such defendant
knew the nature of the offense with which he was charged or of which he was suspected at
the time of making the confession, (3) whether or not such defendant was advised or knew
that he was not required to make any statement and that any such statement could be used
against him, (4) whether or not such defendant had been advised prior to questioning of
his right to the assistance of counsel; and (5) whether or not such defendant was without
the assistance of counsel when questioned and when giving such confession.
The presence or absence of any of the above-mentioned factors to be taken into consideration by the
judge need not be conclusive on the issue of voluntariness of the confession. . . .
The obvious import of the provision was to restore, at least in some fashion, n59 a voluntariness determination as the
basis for admitting confessions in federal courts. The question then became how the Justice Department would enforce
this Act of Congress challenging the Supreme Court's decision.
[*197] II. SECTION 3501 AND THE DEPARTMENT OF JUSTICE: FROM SUCCESS TO SURRENDER
The conventional wisdom about § 3501 is that the Justice Department has never enforced it because of doubts about
its constitutionality. Attorney General Janet Reno, for example, recently asserted at a press conference following the
Fourth Circuit's decision in Dickerson that "in this administration and in other administrations preceding it, both parties
have reached the same conclusion [that the statute could not be enforced]." n60 Her claim was echoed by prominent
legal academics such as Yale Kamisar, n61 Laurence Tribe, n62 and Stephen Schulhofer, n63 and repeated in
criminal procedure casebooks, the popular press, and elsewhere. n64 With all due respect to the impressive support for
the received wisdom, it is demonstrably wrong. As respected veteran Supreme Court reporter Lyle Denniston recently
concluded, "Reno's perception . . . that this has always been the federal government's view is mistaken." n65
These misperceptions about § 3501 may have arisen because a comprehensive history of the statute does not exist.

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n66 In fact, with [*198] only one brief exception, no administration, other than the current one, has ever expressed the
view that the statute is unconstitutional. To the contrary, with the exception of the last few months of the Johnson
administration, past administrations either tried to encourage use of the statute or, at the very least, had no policy of
discouraging its use. A brief history demonstrates that the Department's current position is at odds with those of its
predecessors.
A. THE IMPLEMENTATION OF § 3501 IN THE EARLY YEARS: THE ROAD TO SUCCESS IN CROCKER
When the Omnibus Crime Control and Safe Streets Act of 1968 reached President Johnson's desk, he signed the
law, n67 but put a gloss on the provisions of § 3501 to essentially incorporate Miranda. His signing statement said:
The provisions of [§ 3501], vague and ambiguous as they are, can, I am advised by the Attorney General
[Ramsey Clark], be interpreted in harmony with the Constitution and Federal practices in this field will
continue to conform to the Constitution. . . . I have asked the Attorney General and the Director of the
Federal Bureau of Investigation to assure that these policies [i.e., giving Miranda warnings] will
continue. n68
The Department of Justice would later characterize this action as "disingenuous[]," n69 and it is hard to argue with this
assessment. The proposed legislation was not in any way ambiguous; everyone involved in its drafting was aware of
both its intent and its basic effect. n70 In any event, the result of President Johnson's statements was that the statute
was ignored by courts and prosecutors in the first few months after it was signed into law. n71
[*199] This position proved to be very short-lived. During the 1968 Presidential campaign, candidate Richard
Nixon attacked the Warren Court's criminal procedure jurisprudence in general and Miranda in particular. Nixon
explained that Miranda "had the effect of seriously ham stringing [sic] the peace forces in our society and strengthening
the criminal forces." n72 After Nixon was elected, his Attorney General, John Mitchell, quickly issued new guidance
to federal prosecutors and agents. He directed them to follow the Miranda rules, but to also use § 3501 to help obtain
the admission of confessions. Will Wilson, Assistant Attorney General of the Criminal Division, circulated a
memorandum that set forth the Department's position that it could apply § 3501:
Congress has reasonably directed that an inflexible exclusionary rule be applied only where the
constitutional privilege itself has been violated, but not where a protective safeguard system suggested
by the Court has been violated in a particular case without affecting the privilege itself. The
determination of Congress that an inflexible exclusionary rule is unnecessary is within its constitutional
power. n73
In explaining this policy, Attorney General Mitchell testified before the House Select Committee on Crime that "it is
our feeling . . . that the Congress has provided this legislation [§ 3501], and, until such time as we are advised by the
courts that it does not meet constitutional standards, we should use it." n74
Following this approach, federal prosecutors raised § 3501 in federal courts around the country in an effort to
secure favorable rulings on it. This litigation effort produced a number of decisions in which courts referenced the
statute, but found it unnecessary to reach the question of whether it actually replaced the Miranda procedures, usually
because the federal agents had followed Miranda. n75
[*200] The Justice Department's litigation efforts did, however, successfully produce one decision from a federal
court of appeals upholding § 3501. In United States v. Crocker, n76 the Tenth Circuit affirmed a district court's
decision to apply the provisions of § 3501 rather than Miranda. The case involved a woman who confessed to
participating in a counterfeiting ring. The trial court admitted the confession on authority of § 3501 rather than
considering the requirements of Miranda. n77 The Tenth Circuit upheld this approach, relying heavily on a Supreme
Court decision the previous year allowing the use of the "fruits" of evidence obtained via a non-Mirandized confession.
The Tenth Circuit concluded that this decision, Michigan v. Tucker, n78 "although not involving the provisions of
section 3501, did, in effect, adopt and uphold the constitutionality of the provisions thereof." n79 The Tenth Circuit

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85 Iowa L. Rev. 175, *200

explained that Tucker essentially concluded that the Miranda warnings were not constitutionally mandated, relying on
language in Miranda that the "suggested" safeguards were not intended to "create a constitutional straitjacket." n80
The Tenth Circuit concluded by specifically stating its holding: "We thus hold that the trial court did not err in applying
the guidelines of section 3501 . . . in determining the issue of the voluntariness of Crocker's confession." n81
B. THE IMPLEMENTATION OF § 3501 FROM 1975 TO 1992: THE SEARCH FOR THE "TEST CASE"
After the favorable decision in Crocker in 1975, the Justice Department shifted, almost by accident, into a posture
of litigating § 3501 only in selected "test cases" with favorable facts. Initially after Crocker, § 3501 appeared to have
simply slipped the collective consciousness of federal prosecutors. The argument that the statute supersedes Miranda
was not pressed in the courts from approximately 1975 to about 1986. This inaction was not the result of any new policy
from the Justice Department. To the contrary, the Department's [*201] 1969 directive supporting the statute remained
in effect through the Ford, Carter, Reagan, and Bush administrations. The directive was clearly in effect as of 1974,
n82 and, later in 1986, an exhaustive Department of Justice report disclosed no change in policy and encouraged further
use of the statute. n83
The Department's Office of Legal Policy prepared the 1986 report. In an extended and scholarly analysis, it
concluded that the statute was constitutional and that the Supreme Court would so find:
Miranda should no longer be regarded as controlling [in federal cases] because a statute was enacted in
1968, 18 U.S.C. § 3501 . . . . Since the Supreme Court now holds that Miranda's rules are merely
prophylactic, and that the fifth amendment is not violated by the admission of a defendant's voluntary
statements despite non-compliance with Miranda, a decision by the Court invalidating this statute would
require some extraordinarily imaginative legal theorizing of an unpredictable legal nature. n84
Following on the heels of this comprehensive study, the Attorney General approved this view of the constitutionality of
the statute and instructed the litigating divisions to seek out the best case in which to argue that the statute had replaced
Miranda. n85 From 1986 to 1988, I served as an Associate Deputy Attorney General in the Department of Justice. One
of my specifically assigned responsibilities [*202] was to locate a good "test case" for the argument. The idea was,
rather than test § 3501 in random cases, to identify cases in which the facts made a favorable ruling for the statute more
likely. Department lawyers identified several cases in which it appeared that they could make a good argument for §
3501. This resulted in the filing of at least one brief seeking to invoke the statute. In United States v. Goudreau, n86
the Civil Rights Division argued (in police brutality prosecution) that "under the terms of 18 U.S.C. § 3501, the
defendant's statement is admissible evidence regardless of whether Miranda warnings were required, because the
statement was voluntarily made," citing United States v. Crocker. n87 Both the Office of the Solicitor General and the
Assistant Attorney General for the Civil Rights Division specifically approved this argument. In Goudreau, the Eighth
Circuit ultimately issued an opinion that did not cite § 3501 and, instead, found that federal agents had complied with
the requirements of Miranda. n88
Again during the Bush Administration, the Justice Department followed the "test case" approach of litigating §
3501. As former Attorney General Bill Barr explained in a letter to Congress, during his tenure the Department "took
the position that 18 U.S.C. § 3501 was constitutional as an exercise of Congress' authority to control the admission of
evidence before federal courts." n89 Attorney General Barr also indicated that he had directed one of his special
assistants to find a specific "test case" in which to raise § 3501 and obtain a favorable ruling in the appellate courts.
n90 Although they did not find such a case at the Departmental level in Washington, D.C., some federal prosecutors
around the country presented the § 3501 argument in cases with good facts for the government. n91 No federal [*203]
courts appear to have ruled on the merits of the claim during this time.
C. THE IMPLEMENTATION OF § 3501 IN THE CLINTON ADMINISTRATION: UNDERMINING THE
STATUTE

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From the beginning of the Nixon administration in 1969 through the end of the Bush Administration in 1993, the
consistent view of the Department of Justice was that § 3501 was constitutional. The Department's policy, however,
began to change in subtle ways with President Clinton's election and the appointment of his political appointees to
policy-making positions in the Department.
1. United States v. Cheely and Davis v. United States
The first evidence that the Department might have a new posture on the statute surfaced in the dubious handling of
the defense of § 3501 before the Ninth Circuit in United States v. Cheely. n92 Defendant Cheely, who had been
convicted of murder, arranged for an accomplice to send a mail bomb to the post office box of George Kerr, a key
witness against him. Kerr's parents, who were collecting his mail, opened the box containing the mail bomb. David
Kerr, George's father, was killed. Michelle Kerr, George's mother, was seriously injured when hundreds of pellets,
glass, and other projectiles entered her body. Postal inspectors obtained voluntary, incriminating statements from
Cheely, but the district court suppressed the statements under Miranda. n93
Because of the importance of the confession to the circumstantial case against Cheely, the government considered
appealing the district court's ruling. The case would also, for obvious reasons, be a good "test case" for § 3501. A memo
from an Assistant to the Solicitor General, written on March 12, 1993 (early in the Clinton administration before there
were any confirmed political appointees in the Department of Justice), recommended authorizing an appeal raising §
3501 as one of four grounds. The memo states: "As I understand it, we have made arguments based on Section 3501 to
courts of appeals in the past." n94
The career attorneys in the Department of Justice authorized [*204] the appeal on this basis, but before the brief
could be finalized, political appointees of the Clinton Administration arrived and became involved in the case. By the
time the Department's brief was actually filed in the Ninth Circuit, it contained a weaker, uninspired argument in
support of the statute. The Department's abbreviated argument on § 3501 off-handedly mentions the statute and cites no
authority more recent than 1975. n95 The § 3501 portion of the Department's brief appears to be so far below the
normal standards of appellate advocacy that it gives reason to question whether it was written by unsympathetic
political officials rather than the Department's experienced career attorneys who, in contrast to earlier and later
pleadings, did not sign this particular brief.
The Department's less-than-competent defense of the statute continued following a predictable (given the briefing)
adverse ruling on § 3501 from the Ninth Circuit. The Ninth Circuit tersely concluded that § 3501 did not "trump" the
Miranda doctrine. n96 After the ruling, the Department did not petition for rehearing. In an extraordinary move,
however, the Ninth Circuit then entered an order sua sponte directing the parties to address the question of whether the
case merited rehearing en banc. n97 The Department of Justice, however, did not take the cue and, surprisingly, even
filed a memorandum opposing further review, arguing that the "factbound decision is neither contrary to the holdings of
any other panel of this Court nor of sufficient systemic importance to merit plenary review." n98 Its position is
problematic in several respects. To begin with, it is difficult to accept that a decision regarding a federal statute
replacing the Miranda decision in all federal cases could lack "systemic importance." n99 Moreover, it is curious that
the Department did not apprise the Ninth Circuit of the potential conflicts Cheely created, [*205] both within and
without the circuit. n100 Finally, the memorandum contains inadequate discussion of the one case Cheely cited in
support of its conclusion that § 3501 did not "trump" the Miranda rules: Desire v. Attorney General of California.
n101 Desire does not cite § 3501; nor could it have any possible bearing on § 3501, because it arises from a state
prosecution to which § 3501 has no application. The memorandum does not make any of these obvious points, and,
interestingly enough, the signature of the Department's career prosecutor does not appear on this memorandum as well.
This was not the end of the Department's efforts to avoid the question of § 3501 in Cheely. Shortly after the
Department filed its memorandum on rehearing, the United States Supreme Court handed down its decision in Davis v.
United States. n102 There, too, the Justice Department now appeared to be undermining the statute.

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In 1993, the Supreme Court granted certiorari in Davis v. United States, n103 a federal court martial case
involving Davis' attempt to use his ambiguous request for counsel as grounds for suppressing his subsequent
incriminating statements implicating him in a murder. Davis raised no claim that his statement was involuntary; instead,
he asserted only that the "prophylactic" questioning cut-off rules of Miranda were triggered by his reference to counsel.
The Washington Legal Foundation (WLF) filed an amicus brief in support of the United States, arguing that § 3501
required the admission of Davis' voluntarily-made incriminating statements. n104 A few days later, the brief of the
Solicitor General affirmatively and [*206] gratuitously undermined the WLF attempt to support the United States. The
Solicitor General's brief dropped a footnote arguing that military court-martials are not "criminal prosecutions" subject
to § 3501. n105
Even before the case was argued, this peculiar interpretation of the statute n106 raised a suspicion that the
Solicitor General's Office was attempting to avoid the issue without explaining that it disliked the statute. In oral
argument before the Court, these suspicions were publicly confirmed. The Court repeatedly asked Assistant to the
Solicitor General, Richard H. Seaman, about the effect of § 3501. He gave generally unresponsive answers and finally,
after being pressured by several questions, stated, "We don't take a position on that issue." n107
This refusal to address the statute in response to specific questions from the Court did not go unnoticed. In her
majority opinion, Justice O'Connor indicated an inability to discuss the issue because of the Department's failure to
address the law, dropping a hint that the Department should consider raising it:
We also note that the Government has not sought to rely in this case on 18 U.S.C. § 3501, 'the statute
governing the admissibility of confessions in federal prosecutions . . .' n108 and we therefore decline
the invitation of some amici to [*207] consider it [citing Brief of WLF]. Although we will consider
arguments raised only in an amicus brief. . . . we are reluctant to do so when the issue is one of first
impression involving the interpretation of a federal statute on which the Department of Justice expressly
declines to take a position. n109
Justice Scalia, in a concurring opinion in the case, was even more specific, castigating the Department's reluctant
approach to the statute:
The United States' repeated refusal to invoke § 3501, combined with the courts' traditional (albeit merely
prudential) refusal to consider arguments not raised, has caused the federal judiciary to confront a host of
"Miranda" issues that might be entirely irrelevant under federal law . . . . Worse still, it may have
produced -- during an era of intense national concern about the problem of runaway crime -- the acquittal
and the nonprosecution of many dangerous felons, enabling them to continue their depredations upon our
citizens. There is no excuse for this. n110
At this stage, the story of § 3501 returns to the Ninth Circuit, where the Department's career prosecutor handling
the Cheely case read Justice Scalia's favorable remarks about § 3501. He then promptly sent a letter to the Ninth Circuit
apprising them of this decision and explaining briefly how it applied to the issues at hand. n111 Later that same day,
political appointees in the Department of Justice apparently learned of this letter, as Solicitor General Drew Days
himself called the clerk of the court for the Ninth Circuit. General Days followed the call with a letter withdrawing the
earlier letter from the career prosecutor n112 and replacing it with a new letter that blandly mentioned that Davis
might have some relevance to [*208] the Department's pending memorandum. n113
Apparently not enlightened by this letter, the Ninth Circuit ordered briefing by the parties on whether Davis
affected its earlier ruling. n114 This led the Department to file a "Supplemental Memorandum" concerning Davis.
n115 Curiously, the memorandum's argument section, however, fails to argue the applicability of § 3501, despite the
suggestions along those lines in Davis.
The Ninth Circuit ultimately decided against rehearing the case, and the Department sought no further review in the
United States Supreme Court. Cheely went to trial and, despite the government's inability to use his incriminating

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statements, was convicted. Despite the conviction, the Department's handling of the case effectively undercut § 3501
throughout the Ninth Circuit.
2. The Department's Commitment to Raise § 3501 in an "Appropriate" Case
After the Department's curious machinations in Cheely and Davis, some surmised that the Justice Department had
decided to reverse its long-standing policy supporting § 3501. Late in 1995, I raised these concerns in testimony before
the Senate Judiciary Committee. n116 At that same hearing, several members of the Judiciary Committee pressed this
point with then-Solicitor General Drew Days. In response to questions from Senator (and former federal prosecutor)
Fred Thompson about why the Department had not defended § 3501 in these cases, Solicitor General Days denied that
the Department had decided not to defend the statute:
Let me make clear, Senator, that there is no policy in the Department, and the Attorney General has
already advised the committee of this fact, against raising 3501 in an appropriate case. Indeed, we have
used some provisions of 3501 . . . . So I think it is really a question of our making [*209] the decision as
prosecutors when we are going to raise these issues. . . .
The Department has to make a strategic decision in cases as to how it is going to use Federal
statutes, and in Cheely and in Davis the decision was made not to press that particular argument. It
doesn't mean to say that we won't under other circumstances. n117
The Solicitor General's position was consistent with that of other high-ranking Departmental representatives at the
time. For example, in response to a written question from Senator Orrin Hatch in an oversight hearing in 1995, Attorney
General Reno stated: "The Department of Justice does not have a policy that would preclude it from defending the
constitutional validity of Section 3501 in an appropriate case." n118 Indeed, the Attorney General even pointed to the
Department's recent efforts on behalf of § 3501 in Cheely, noting that "the most recent case in which we raised Section
3501 held that the statute did not 'trump' Supreme Court precedent." n119 In a 1997 oversight hearing, Attorney
General Reno testified "I'd do it [raise the statute] if it's right in an appropriate case." n120 United States Attorney Eric
Holder, when his nomination to be Deputy Attorney in the Department was under consideration by the Judiciary
Committee, also promised to support the statute in appropriate situations: "I would support the use of Section 3501 in an
appropriate circumstance." n121 It thus appeared that the Department committed to defend the statute, provided an
appropriate case could be found.
3. Fourth Circuit Litigation Over § 3501 in Sullivan and Leong.
The "appropriate circumstance" for raising § 3501 would turn out to be elusive for the Clinton administration.
Indeed, in the next case presenting the issue, United States v. Sullivan, n122 political appointees [*210] in the
Department even tried to "unfile" a brief filed by a career prosecutor defending § 3501.
Sullivan involved a routine vehicle stop that led to the discovery of a firearm in the possession of a felon, Robert
Sullivan. n123 In the subsequent prosecution for illegal possession of a firearm, the trial court suppressed Sullivan's
incriminating statements on the ground that the investigating officer did not read Sullivan his Miranda rights. n124 In
its opinion suppressing the statement, however, the district court specifically asked for higher courts to reassess whether
mechanical application of the exclusionary rule should continue to be the law. n125
Career prosecutors in the United States Attorney's Office for the Eastern District of Virginia appealed. Their brief
argued that no Miranda warnings were needed because Sullivan was not in the officer's custody and, even if Sullivan
had been in custody, the statement should be admitted because of § 3501's replacement of the Miranda rules. n126
Three weeks later, the Acting Solicitor General, Walter Dellinger, submitted a letter and an accompanying motion
to the Fourth Circuit Court, seeking to file a new government brief, which simply omitted the § 3501 argument. n127
A few days later, apparently anticipating the court granting the government's motion, Sullivan's counsel filed a brief that

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85 Iowa L. Rev. 175, *210

did not discuss the admissibility of the statement under 18 U.S.C. § 3501. n128 Shortly after that, the Fourth Circuit
granted the government's motion to file the new, redacted brief. n129
The WLF learned of these maneuvers and determined that § 3501 should be brought to the court's attention. On
June 26, 1997, the WLF filed a motion to submit an amicus brief in the Sullivan case on behalf of the WLF and four
members of the Senate Judiciary Committee -- Senators Jeff Sessions, Jon Kyl, John Ashcroft, and [*211] Strom
Thurmond. n130 The WLF simply asked the court to accept for refiling the arguments the career prosecutors
previously submitted on behalf of the statute. In support, the WLF explained why the Court should reach the issue of the
applicability of § 3501, and developed arguments that the statute was binding on the court even when not raised by the
parties. n131 The motion by the WLF also explained that the Department's decision to file a new brief not discussing §
3501 raised serious issues of professional responsibility. The Virginia Code of Professional Responsibility, for example,
indicates [*212] that courts expect "pertinent law [to be] presented by the lawyers in the cause." n132 As a result,
"Where a lawyer knows of legal authority in the controlling jurisdiction directly adverse to the position of his client, he
should inform the tribunal of its existence unless his adversary has done so." n133 Thus, a duty of candor should have
compelled the Department of Justice to make the Court aware of this controlling legal authority. n134
The Fourth Circuit granted the WLF motion to file the brief, n135 but ultimately the court's ruling gave it no
occasion to reach the § 3501 issue. The Court reversed the district court's decision that Sullivan was in custody; the
police officer, accordingly, was not required to give Miranda warnings. The court dropped a footnote concluding that
the § 3501 issue was "moot[]" in light of this disposition. n136
While the Sullivan case shed little light on § 3501, United States v. Leong n137 was more illuminating. While the
WLF's § 3501 argument was pending in Sullivan, the WLF learned of another Fourth Circuit case in which,
coincidentally, another felon, illegally in possession of a firearm, was apprehended in the course of a routine traffic
stop. The district court had concluded that the felon, Tony Leong, was in "custody" when he confessed, and suppressed
his admission to ownership of the gun found under one of the seats. n138 Because there were several other persons in
the car at whom Leong's attorney could point the finger, the ruling had the practical effect of blocking Leong's
prosecution. The government appealed, arguing that Leong was not in fact in custody at the time he confessed. The
Fourth Circuit, however, reluctantly affirmed the district court's suppression order "under the narrow facts presented by
this case." n139
The WLF learned of the case and filed a motion suggesting the appropriateness of a sua sponte rehearing to
examine the applicability [*213] of § 3501. n140 In its motion, the WLF explained that the parties had failed to
apprise the court of potentially relevant legal authority, specifically 18 U.S.C. § 3501. n141 In its accompanying brief,
the WLF argued that the issue was one of exceptional importance that should be considered by the full Fourth Circuit to
avoid an escape from justice by a presumptively dangerous felon in the face of a federal statute to the contrary. n142
Astonishingly, five days after the WLF's filing -- before the Fourth Circuit had an opportunity to rule on the WLF's
motion and before the Fourth Circuit mandated returning the case to the district court -- the Department of Justice
moved in the district court to dismiss the indictment against Leong. The district court entered a dismissal order on July
16, 1997. n143 This gave the appearance of a brazen maneuver by the Department simply to avoid the § 3501 issue by
rendering the case moot, in spite of any jeopardy to public safety. The Department's ploy in the district court, however,
had no legal effect on the Fourth Circuit, as the Court of Appeals still retained jurisdiction over the case. n144
On July 16, 1997, the Fourth Circuit issued an order directing the Department of Justice and counsel for Leong "to
submit supplemental briefs addressing the effect of 18 U.S.C. § 3501 on the admissibility of Leong's confession,
including the effect of the statute on Miranda v. Arizona . . . and any constitutional issues arising therefrom." n145
This order seemed to present an "appropriate" case for the Department of Justice to defend the statute because the
Fourth Circuit had asked specifically for the Department's views. The Chairman and five members of the Senate
Judiciary Committee expected the Department to do this. On August 28, 1997, the six Senators wrote a detailed letter to
Attorney General Reno carefully analyzing the legal issues and concluding with a strong plea for her [*214] to defend

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the law:
We believe that Section 3501 is constitutional. While the Supreme Court has not passed on this question
directly, we believe that the Court would uphold the statute . . . . The undersigned Members do not want
to see a guilty offender go free due to a technical error if the Justice Department easily can prevent such
a miscarriage of justice by invoking the current written law. n146
The Senators also recalled the repeated assurances they had received from the Department that it would defend the
statute in an "appropriate case." n147 They recounted, for example, Solicitor General Days' testimony about the
decision of the Department not to pursue § 3501 further in the Cheely case, n148 noting that "Mr. Days attributed the
Department's refusal . . . to pursue the issue any further in the Ninth Circuit case of United States v. Cheely not to
doubts about its constitutionality -- indeed, he never suggested in the course of the hearing that the Department had any
such doubts -- but instead to various litigation strategy considerations. He specifically stated that the decision not to
press the argument in those cases 'doesn't mean that we won't under other circumstances.'" n149
In spite of its prior representations to Congress, the Justice Department filed a brief in Leong actually joining the
defendant in arguing that the statute was unconstitutional. The Department's brief advanced two claims. First, the
Department asserted that the "lower courts" could not reach the question of the effect of the 1968 statute because the
Supreme Court's 1966 decision in Miranda had decided the issue. n150 Second, the Department argued that on the
merits, the statute was unconstitutional, at least in the lower courts, because Miranda created constitutional rights.
n151 "The Court's description of the Miranda rules as 'prophylactic,'" the Department contended, "does not require the
conclusion that the rules are therefore extraconstitutional." n152 In the Supreme Court, however, they conceded
[*215] that the outcome might be different: "Should the issue of § 3501's validity . . . be presented to the Supreme
Court . . . the same considerations would not control, since the Supreme Court (unlike the lower courts) is free to
reconsider its prior decisions, and the Department of Justice is free to urge it to do so." n153 Shortly thereafter, the
Attorney General gave notice to Congress that she would not defend § 3501 in the lower courts. n154
Defendant and convicted felon Tony Leong and the National Association of Criminal Defense Lawyers joined the
Department's argument in a strange (and, some might say, unholy) alliance. In response, the WLF filed a reply,
explaining why § 3501 was a valid exercise of congressional power to modify prophylactic, evidentiary rules created by
the Supreme Court. n155
On September 19, 1997, the Fourth Circuit issued its order declining to rehear the case. The court first recapitulated
the Department's argument that lower courts could not reach the question of § 3501, concluding succinctly: "We
disagree." n156 The court reviewed a number of other situations where lower courts had decided similar issues and
concluded "the Government is mistaken, therefore, in asserting that it may not urge the applicability of § 3501 before a
lower court." n157 The court, however, went on to decide that, because the WLF had belatedly raised § 3501 in a
petition for rehearing, the court could consider only whether it was "plain error" to suppress a confession in spite of the
statute. Because the constitutionality of § 3501 was unsettled, the Fourth Circuit declined to consider the statute for the
first time on an appellate petition for rehearing. n158
The decision in Leong seemed to set the stage for a successful defense of § 3501, if only a case could be found in
the Fourth Circuit in which the statute had been raised not on appeal but in the trial court. The Department, however,
took an action that insured this would not happen. On November 6, 1997, John C. Keeney, Acting Assistant Attorney
General for the Criminal Division, sent a [*216] memorandum to all United States Attorneys noting the Department's
position against § 3501 in Leong and requiring the prosecutors to "consult[]" with the Criminal Division in all cases
concerning the voluntariness provisions of the statute. n159 The Department's efforts to consign § 3501 to oblivion in
the trial courts, however, came too late, as will be recounted presently in connection with the Dickerson decision. n160
4. Section 3501 in the District of Utah and the Tenth Circuit

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85 Iowa L. Rev. 175, *216

Before turning to the final act in the Fourth Circuit, it is necessary to complete the chronology of § 3501 litigation
by returning briefly to the Tenth Circuit. After the Tenth Circuit's 1975 ruling in Crocker upholding § 3501, one would
have thought that other cases involving the statute would have been plentiful. Yet, while later cases from the Circuit
cited both Crocker and § 3501 favorably, n161 by and large the courts and prosecutors within the Tenth Circuit
appeared to be unaware of the decision. A few experienced prosecutors in that Circuit, however, realized the value of §
3501 and attempted to use it in appropriate cases. n162 One such case was United States v. Nafkha. n163 The
defendant there, Mounir Nafkha, was involved in a series of armed "takeover" bank robberies and was a dangerous,
career criminal. Apart from Nafkha's confession, the evidence against him was circumstantial. Under Miranda, the
admissibility of the confession appeared to be a close question because Nafkha made a reference to a lawyer during
questioning that, under the Miranda rules, could potentially qualify as an invocation of his [*217] rights that required
police to stop all questioning. Ultimately, both the Justice Department and amicus curiae WLF n164 filed briefs
arguing for the admission of Nafkha's confession under § 3501. n165 The magistrate ruled that while the § 3501
argument was "logical and intriguing, this issue need not be reached" because police had complied with Miranda. n166
The prosecution presented Nafkha's confession to the jury, and the jury convicted him.
On Nafkha's appeal to the Tenth Circuit, the career prosecutor filed a brief on behalf of the United States defending
the admission of the confession under both the Miranda doctrine and § 3501. n167 The WLF also filed a brief
defending § 3501, joined by the International Association of Chiefs of Police, the Law Enforcement Alliance of
America, and other groups. n168 While the case was awaiting argument, the Department filed its brief in the Fourth
Circuit in Leong attacking § 3501. The Department then sent a letter to the clerk of the Tenth Circuit, withdrawing the
portion of the Nafkha brief defending § 3501, and substituting as the government's position copies of the brief from
Leong. n169 In executing this xerox-and-file maneuver to briefing, the Department never explained why § 3501 did
not apply in the Tenth Circuit. The circuit, after all, had previously and specifically upheld the statute (at the behest of
the Department) more than twenty years earlier in Crocker, n170 and later circuit precedent cited favorably both
Crocker and § 3501. n171 The Leong brief from the Fourth Circuit did not argue that Crocker had been overruled and
did not discuss later Tenth Circuit precedent. The Leong brief merely stated that "the Tenth Circuit has not had occasion
to reexamine Crocker in light of subsequent developments in the Supreme [*218] Court's Miranda jurisprudence . . . ."
n172 This was not, however, a sufficient reason to ignore a binding precedent within that circuit. Ultimately, the issue
fizzled out. The Tenth Circuit ruled that the confession was obtained in compliance with Miranda and, therefore, it did
not have to consider the effect of § 3501. n173
Around this time, the Justice Department's seemingly determined efforts to keep courts from reaching the merits of
§ 3501 began to unravel. The Department's position was first rebuffed by a federal district court in Utah in United States
v. Rivas-Lopez. n174 There, the Safe Streets Coalition filed an amicus brief raising § 3501 and pointing out that, in the
District of Utah, the Tenth Circuit's decision in Crocker was binding on the issue. n175 The Department responded by
simply referencing its brief in the Leong case. n176 The Safe Streets Coalition replied by criticizing the "one size fits
all" approach to briefing, explaining that the Department's brief from Leong in the Fourth Circuit contained no analysis
of why district courts within the Tenth Circuit should ignore Crocker. n177 The district court fully agreed, issuing a
published opinion that upheld § 3501. n178 The court first noted the Department's "curious position" in agreeing with
the defendant "that § 3501 does not apply and is unconstitutional." n179 The court rejected the Department's claim,
finding that the Supreme Court had repeatedly described the Miranda rules as not constitutionally mandated. n180
Moreover, the court argued that the Tenth Circuit had "squarely upheld the constitutionality of" § 3501 in Crocker.
n181 The court concluded:
The government implies that the Miranda jurisprudence [*219] since the Crocker case would
undoubtedly persuade this circuit to alter its course if given the chance, but apparently the government
does not want to give the Tenth Circuit that chance. Given the above review of the cases and
post-Miranda decisions, this court declines to so speculate, and will and must follow the precedent set in
this circuit. n182
Rivas-Lopez presented an opportunity to obtain a clear-cut appellate ruling on the merits of § 3501, as the decision

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85 Iowa L. Rev. 175, *219

surmounted the recent position of the Justice Department against § 3501. The case, however, ultimately petered out.
Defendant Rivas-Lopez decided to skip bail rather than find out how he would fare at a jury trial for drug dealing with
his confession introduced in evidence. n183 Nonetheless, the § 3501 issue was destined to reach an appellate court.
5. The End of the Road? United States v. Dickerson
The long effort to obtain an appellate court ruling on § 3501 came to a successful conclusion recently in the Fourth
Circuit. There, the circuit's September 1997 ruling in Leong meant that only § 3501 issues raised in the trial court could
be considered on appeal. The Department's November 1997 directive against raising § 3501 in the trial court n184
prevented the statute from playing a role in all new cases in which the career prosecutors might raise the statute. But the
Department's efforts to hermetically seal off all such cases from the circuit was thwarted by one pending case involving
the statute.
United States v. Dickerson arose before the Department promulgated its directive against using § 3501. The case
involved a serial bank robber who FBI agents took into custody and interviewed. At the suppression hearing, the lead
agent testified that he gave Dickerson his Miranda warnings and obtained a waiver, after which Dickerson made
incriminating statements. Dickerson, in contrast, testified that he first gave statements in an interview, and only
afterwards received his Miranda warnings. Courts routinely decide such one-on-one "swearing contests" in favor of law
enforcement officers, but in this case the district court sided with the defendant, [*220] citing alleged discrepancies
between the officer's testimony and the times scribbled on the waiver of rights form. n185 The United States
Attorney's Office then mobilized a strong response to the district court opinion, filing a motion for reconsideration
which contained affidavits from several other officers fully corroborating that the agents had given Dickerson his
Miranda warnings at the start (rather than the end) of the interview, and providing specific explanations of the alleged
discrepancies on the time Dickerson signed the waiver form. The motion for reconsideration also specifically raised §
3501 as a basis for admitting the statements. n186 The district court, however, refused to reconsider its decision
because all of these arguments were available to the prosecutors at the time of the first hearing. n187
Career prosecutors then filed an appeal to the Fourth Circuit, arguing that the district court should have
reconsidered its first ruling in light of the subsequently-provided affidavits. n188 In the meantime, the Department had
announced its new policy on § 3501. Consistent with that policy, the brief contained a footnote, noting that the
Department prohibited the government from raising § 3501 on appeal. n189 The WLF filed an amicus brief arguing
that § 3501 was binding on the court, noting that, in contrast to Leong, in this case the prosecution had presented § 3501
to the trial court, albeit in a motion for reconsideration. n190 The Fourth Circuit allowed the WLF to defend the statute
during oral argument in January 1998.
A little more than a year later, on February 8, 1999, the Fourth Circuit announced its landmark opinion in the case,
upholding § 3501 against constitutional attack and applying it to admit Dickerson's incriminating statements. n191 In a
lengthy opinion, the court held that "we have little difficulty concluding . . . that § 3501, enacted [*221] at the
invitation of the Supreme Court and pursuant to Congress's unquestioned power to establish the rules of procedure and
evidence in federal courts, is constitutional." n192 The court noted that a defense of the statute by the Department of
Justice was absent, and it observed that the career prosecutor on the case was "prohibited by his superiors at the
Department of Justice from discussing § 3501." n193 The Fourth Circuit described the decision by the Department as
one that "elevated politics over law . . . . Fortunately, we are a court of law and not politics. Thus, the Department of
Justice cannot prevent us from deciding this case under the governing law simply by refusing to argue it." n194 Citing
the Virginia Code of Professional Responsibility, the Court also noted that the Department's failure to discuss § 3501
abdicated its "responsibility to call relevant authority to this Court's attention." n195 Perhaps in response to this point,
the Department of Justice sent out a memorandum to all U.S. Attorneys in the Fourth Circuit shortly after Dickerson,
explaining that, in response to motions to suppress statements, "prosecutors in the Fourth Circuit discharge their
professional and ethical obligations if they call the district court's attention to the existence of Section 3501 and the
Dickerson decision." n196 The Department does not appear to have sent out a similar memorandum to all U.S.
Attorneys in the Tenth Circuit, suggesting they call the Tenth Circuit's Crocker opinion to the attention of courts there.

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85 Iowa L. Rev. 175, *221

Judge Michael dissented, arguing the court should not have reached the issue of the statute's application where it was
not presented by the Department of Justice. n197
After the decision was handed down, Dickerson filed a petition for rehearing en banc, n198 supported by the
American Civil Liberties [*222] Union and the National Association of Criminal Defense Lawyers. n199 The
question then arose as to how the Department of Justice should respond since it had "won" the case, with a little help
from the participation of the WLF as amicus. At this stage, too, the Department now indisputably had a "reasonable"
argument on behalf of the statute -- specifically the detailed argument carefully advanced by a respected Fourth Circuit
Judge, Karen Williams, in her opinion for the Fourth Circuit. Senator Orrin Hatch, Chair of the Senate Judiciary
Committee, and eight of his colleagues -- Senators Jon Kyl, John Ashcroft, Robert Smith, Charles Grassley, Michael
DeWine, Strom Thurmond, Spencer Abraham, and Jeffrey Sessions -- made this point forcefully in a letter to the
Attorney General. The Senators recounted the Fourth Circuit's criticism of the Department for "elevating politics over
law," finding this to be "deeply troubling." n200 The Senators went on to observe that the Department had pledged to
defend Acts of Congress where it could make reasonable arguments: "The Dickerson opinion demonstrates beyond
doubt that there are 'reasonable arguments' to defend 18 U.S.C. § 3501. In fact, these arguments are so reasonable that
they have prevailed in every court that has directly addressed their merits." n201 Despite this letter, the Department
actually filed a brief supporting the defendant, the ACLU, and the National Association of Criminal Defense Lawyers in
seeking rehearing. n202 The Department argued against the court's decision to apply § 3501, contending that the
decision was an "error, and that its holding deserves reconsideration by the full court of appeals." n203 Of the four
career prosecutors who had been handling the case up to that point, not one signed the Department's brief attacking §
3501.
The WLF filed a reply, explaining that not only was the panel decision correct on the merits, but that it made little
sense to review the matter en banc. Because the Justice Department had always said in its recent pleadings that it might
take a different position on [*223] § 3501 in the Supreme Court, further review in the Fourth Circuit was not a wise
use of the court's time. n204 On April 1, 1999, the full Fourth Circuit apparently agreed, voting 8-5 to deny rehearing
en banc.
Dickerson then sought review in the Supreme Court. n205 The Department of Justice again joined Dickerson,
urging the Court to grant certiorari to reverse the Fourth Circuit. n206 The WLF filed an amicus memorandum urging
a grant of certiorari to affirm the Fourth Circuit. n207 The court recently granted certiorari and appointed me to defend
the decision of the Fourth Circuit, setting the stage for an important decision on § 3501. n208
6. The Department's Obligation to Defend Acts of Congress
The Justice Department's current position in the Supreme Court of not defending, and actually condemning, § 3501
raises serious constitutional questions. The bedrock obligation of the Executive Branch is to "take Care that the Laws be
faithfully executed." n209 Long ago the Supreme Court concluded that "to contend that the obligation imposed on the
President to see the laws faithfully executed, implies a power to forbid their execution, is a novel construction of the
constitution, and entirely inadmissible." n210 Reasoning from this holding and others like it, a number of respected
constitutional scholars have concluded that the President must enforce all Acts of Congress, regardless of the
Executive's views of their constitutionality. n211 One need not go as far as these scholars have to [*224] agree with
the conventional position that, at the very least, the Executive should defend Acts of Congress where reasonable
arguments can be made on their behalf. n212 The Department has even described the need to raise reasonable
arguments as rising to the level of a "duty," explaining "the Department has the duty to defend an act of Congress
whenever a reasonable argument can be made in its support, even if the Attorney General and the lawyers examining
the case conclude that the argument may ultimately be unsuccessful in the courts." n213 This is particularly the case
where, if the Executive does not present an argument, the effect will be to deny the courts any opportunity to review the
issue. n214 Top ranking officials in the Department have said that they follow these established principles. n215
Given this conventional understanding of the Department's obligations, its current position of declining to defend

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85 Iowa L. Rev. 175, *224

the constitutionality of § 3501 is sustainable if -- and only if -- no "reasonable" argument can be made on behalf of the
statute. As the history just [*225] recounted suggests, this aggressive position requires the conclusion that the views of
many -- including, among others, both Houses of Congress in 1968, a number of distinguished Senators in recent years,
high ranking officials in the Department of Justice from 1969 to 1993, the Tenth Circuit, the District Court of Utah, and
most recently the Fourth Circuit -- are not simply wrong, but "unreasonably" wrong. Such a conclusion seems dubious.
In fact, not only reasonable, but compelling arguments support the constitutionality of § 3501. This Article turns now to
the constitutionality of the statute.
III. SECTION 3501 AND THE CONSTITUTION
If the constitutionality of § 3501 were to be determined under the original meaning of the Fifth Amendment, the
statute would undoubtedly comply with the Constitution. Even interpreted most aggressively, as simply restoring the
pre-Miranda voluntariness test, n216 the statute would do no more than return to the traditional approach for
determining the admissibility of confessions. n217 Such restoration would not violate the original intent of the
Constitution. n218
Those who challenge the constitutionality of § 3501, however, rely little on history and tradition in their arguments.
For them, interrogation law dawned in 1966 with Miranda, and, they argue, § 3501 cannot be squared with what the
Court has said about the most-famous of its criminal law creations. n219 Even on these terms, [*226] however, §
3501 is constitutional under the Miranda doctrine for at least two reasons. First, the Court itself has repeatedly held that
the Miranda rules are not constitutionally required. Accordingly, as the Dickerson opinion concludes, the rules are
subject to congressional override. A second independent argument, not needed and therefore not discussed in the
Dickerson opinion, is that § 3501 simply accepts the direct invitation from the Miranda Court itself that Congress could
draft alternative rules governing confessions. The Article explains both of these arguments below.
Before turning to the specific legal arguments, however, it is important to recognize that, by passing § 3501,
Congress implicitly attached to the Act a stamp of constitutionality. The "gravest and most delicate duty" of the
Supreme Court is reviewing the constitutionality of federal statutes. n220 An Act of Congress, after all, is an
expression of elected representatives of the American people about how the Constitution ought to be interpreted. While
the final decision rests with the Court, n221 the congressional determination is itself an important consideration.
A. SECTION 3501 AS AN EXERCISE OF CONGRESSIONAL POWER TO ESTABLISH FEDERAL COURT
RULES
1. Congressional Rulemaking Power
The Supreme Court has described § 3501 as "the statute governing the admissibility of confessions in federal
prosecutions." n222 The rules the statute establishes differ, of course, from those set by the Miranda Court. But it is
generally accepted that, unless the rules are unconstitutional, Congress has the final say regarding the rules of evidence
and procedure in federal courts. For example, the Supreme Court upheld congressional modification of a
Court-promulgated rule concerning production of impeaching materials on government witnesses, explaining that "the
statute as interpreted does not reach any constitutional barrier." n223 The Court specifically went out of its way to
explain that Congress may trump even a conflicting Supreme Court procedural or evidentiary rule, as long as the
Constitution does not require the Court-imposed rule. The Court [*227] specifically noted that its power "to prescribe
rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress." n224
The validity of § 3501, therefore, boils down to whether the Constitution requires the Miranda exclusionary rule.
As the Dickerson opinion properly observed, "if it is, Congress lacked the authority to enact § 3501, and Miranda
continues to control the admissibility of confessions in federal court. If it is not required by the Constitution, then
Congress possesses the authority to supersede Miranda legislatively, and § 3501 controls the admissibility of
confessions in federal court." n225

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85 Iowa L. Rev. 175, *227

2. The Miranda Rights as Sub-Constitutional "Safeguards"
With the question thus framed, there can be little doubt of the answer: The Constitution simply does not require the
Miranda rules. The Supreme Court has held that the Miranda procedures are not constitutional rights or requirements.
Rather, they are only "recommended procedural safeguards" n226 with the purpose of reducing the risk that the police
will violate the Fifth Amendment's prohibition of compelled self-incrimination in custodial questioning. Quite simply,
to violate any aspect of Miranda is not necessarily -- or even usually -- to violate the Constitution.
The Supreme Court, in a series of cases starting in the early 1970s, has repeatedly described the Miranda warnings
as mere prophylactic rights that are "not themselves rights protected by the Constitution." n227 The Court has relied on
that characterization in refusing to exclude unwarned or imperfectly warned custodial confessions and the fruits of such
confessions in a variety of contexts. Because this characterization has been necessary to, and the principal basis for,
these cases' holdings, no more is needed to demonstrate that Miranda's exclusionary rule is not constitutionally
mandated. If that is so, Miranda provides no basis for doubting the constitutionality of § 3501, which requires only the
admission of "voluntary" confessions -- confessions obtained without violating the Fifth Amendment's prohibition
against compelled self-incriminating [*228] testimony. n228
The view that Miranda rights are not constitutionally required is not some "gloss" or "spin" on the Supreme Court's
opinions; rather it is the way the Supreme Court itself has described Miranda rights. In Davis v. United States, for
example, the Court referred to Miranda warnings as "a series of recommended procedural safeguards." n229 In
Withrow v. Williams, the Court acknowledged that "Miranda's safeguards are not constitutional in character." n230 In
Duckworth v. Eagan, the Court said "the prophylactic Miranda warnings are not themselves rights protected by the
Constitution but [are] instead measures to insure that the right against compulsory self-incrimination is protected."
n231 In Oregon v. Elstad, the Court explained that the Miranda exclusionary rule "may be triggered even in the absence
of a Fifth Amendment violation." n232
Such statements are not idle dicta, but rather a critical part of the Court's holdings. A prime illustration is New York
v. Quarles. n233 In Quarles, the Court ruled that a confession obtained as a result of a police question about the
location of a gun, asked of a suspected [*229] rapist, was admissible despite the failure to give Miranda warnings.
n234 Similarly, in Harris v. New York n235 and Oregon v. Hass, n236 the Court held that a confession gained in the
absence of Miranda, and obtained where police questioning continued after a suspect said he would like to call a
lawyer, could be used to impeach the testimony of a defendant who took the stand at his own trial. n237 The basis the
Court gave for these rulings is that Miranda's exclusionary rule is not constitutionally required, and hence
un-Mirandized confessions may constitutionally be admitted provided that they are voluntary. n238 All of these cases,
among others, would have been wrongly decided if Miranda's procedures were constitutionally required rather than
prophylactic. If the failure to give the Miranda warnings to a defendant meant that the defendant was thereby
automatically "compelled" to confess, any use of his confession at trial, including the ones allowed by the Court in
Quarles, Harris, and Hass, would be forbidden by the Fifth Amendment of the Constitution, because it bars any use at
trial of compelled self-incrimination of any kind. The Fifth Amendment provides: "No person . . . shall be compelled in
any criminal case to be a witness against himself." n239 And, indeed, the Supreme Court concluded in other cases that
the Fifth and Fourteenth Amendments forbid the use of involuntary confessions even for impeachment purposes. These
cases distinguished Harris and Hass as involving confessions obtained after mere Miranda violations, rather than
confessions obtained in violation of the Constitution. n240 Accordingly, the Supreme Court's admission of
un-Mirandized statements in Quarles, Harris, and Hass proves that the Constitution does not require Miranda warnings,
as virtually every federal court of appeals in the country has concluded. n241 In addition, the proposition that the
Constitution [*230] does not require the procedures set out in Miranda is the view that the Department of Justice has
consistently taken in litigation throughout the federal court system since Miranda was decided. n242
This evidence demonstrates that the Court does not conclusively presume a violation of the Fifth Amendment when
the police violate Miranda. Instead, actual compulsion in violation of the Fifth Amendment exists only where law
enforcement has transgressed the traditional voluntariness standards. n243 In the absence of such compulsion, there is

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no constitutional impediment to admitting a suspect's [*231] statements despite non-compliance with Miranda. n244
3. The Constitutional Critics of § 3501
The opponents of § 3501 typically acknowledge that there is considerable force to the argument viewing Miranda
as a subconstitutional safeguard. For example, two leading Miranda scholars have recently written articles discussing
the Dickerson opinion. Professor Yale Kamisar wonders in print whether he had "spoken too quickly" in concluding,
before Dickerson, that the time to overrule Miranda had "come and gone." n245 Professor George Thomas, in a
thoughtful piece, writes that "it is no exaggeration to say that Miranda for the first time in decades hangs in the
balance." n246 Both of these scholars eventually conclude that § 3501 is, most likely, unconstitutional, advancing in
different ways the notion that the Miranda rights have sufficient constitutional grounding to block congressional
alteration. Professor Kamisar finds this foundation in the idea that courts must frequently create prophylactic rules as a
"'central and necessary feature of constitutional law.'" n247 Professor Thomas sees a constitutional basis in the Court's
recent decisions extending Miranda's prophylactic rules in certain contexts. n248 In taking these positions, Kamisar
and Thomas echo that of the Justice Department, which asserted as part of the Dickerson litigation in the Fourth Circuit
that "Miranda implements and protects constitutional rights." n249
Kamisar and Thomas' positions are identical to that articulated in the Justice Department's brief in the Supreme
Court. The Department concedes that the Court "has retreated" from viewing Miranda rights as constitutional rights and
has "frequently observed that the Miranda rules are 'prophylactic' in character. . . ." n250 The [*232] Department also
agrees that the language in these cases could, "viewed in isolation," be used "to support an inference that Miranda is not
a constitutional rule." n251 Indeed, the Department goes so far as acknowledging that the more recent language
"generates tension" within the Court's doctrine. n252 Nonetheless, the Department concludes that the Court's cases
"require[] the conclusion that Miranda . . . does indeed rest on a constitutional basis." n253
According to the Department, the Court "has regularly described the Miranda holding, and subsequent extensions
of that holding, as resting on constitutional grounds." n254 Moreover, the "Court's continued application of the
Miranda rulings to the states and on habeas review cannot be explained on any other ground than that the Court regards
them as implementing and effectuating constitutional rights." n255 As a consequence of these holdings, Congress is
not free to supercede Miranda and, to uphold § 3501, the Court would have to "reconsider and overrule" Miranda.
n256
The Department's brief urges the Court not to overrule Miranda. Not only would considerations of stare decisis be
in play, but Miranda has proven to be "workable in practice" and to "serve[] significant law enforcement objectives."
n257 While federal law enforcement agencies "have encountered difficulties" with extensions of Miranda forbidding
reinitiation of questioning after invocation of a right to counsel, n258 the warning-and-waiver requirements themselves
have not proven difficult to administer. Moreover, to overrule Miranda, the Court would have to "disavow the reasoning
of virtually all of its cases that have addressed the Miranda rule. . . ." n259 These cases, the Department argues, have
created a simplifying, bright line rule to avoid case-by-case litigation on voluntariness issues. Such an approach is not
unusual in constitutional adjudication. n260 Finally, in a closing paean to Miranda that sounds like it was written by
the ACLU litigators rather than Justice Department [*233] prosecutors, the brief concludes that Miranda helps play a
"unique and important role in the nation's conception of our criminal justice system. . . ." n261 For all those reasons,
the Department concluded that § 3501 is unconstitutional.
The fundamental problem with all these claims is that they succeed in invalidating § 3501 only if Miranda is a
constitutional decision in the strongest sense of the word. If Miranda is anything else -- if it is, for example, a decision
rooted in the Court's ability to craft constitutional common law or remedies for constitutional violations -- Congress has
significant authority to modify Miranda's holding by legislation.
To be sure, if the Supreme Court had foreclosed any reading of Miranda other than that its holding is
constitutionally required, there would be no basis for considering possible application of § 3501. However, the Court

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itself has said that this question of using § 3501 is open. In United States v. Davis, n262 far from suggesting that
precedent controlled the issue, the Court explained "the issue is one of first impression." n263 The Court ultimately
concluded it would not decide the matter because it was "reluctant to do so when the issue is one of first impression
involving the interpretation of a federal statute on which the Department of Justice expressly declines to take a
position." n264 This led to a concurring opinion from Justice Scalia, who, consistent with the majority, said he was
"entirely open" to various arguments on § 3501. n265 Also worthy of note is United States v. Alvarez-Sanchez. n266
In that case, the Court identified § 3501 without qualification as "the statute governing the admissibility of confessions
in federal prosecutions." n267 Alvarez-Sanchez and Davis are not the only Supreme Court cases citing § 3501.
Although Miranda-related cases decided by the Court in recent [*234] years have generally involved state proceedings
to which § 3501 does not apply, the Court has cited § 3501 in several of them without any indication of constitutional
infirmity. n268
All of this suggests that the arguments of the opponents of § 3501 are not well founded. The following subsections
review the critics' main contentions.
a. The Original Meaning of Miranda.
The Supreme Court's post-Miranda decisions repeatedly assert and hold that Miranda's procedural prerequisites for
admitting a custodial confession are "prophylactic" -- meaning that a police violation of Miranda is not necessarily a
violation of the Fifth Amendment. In arguing against § 3501, the Department and the statute's academic detractors first
contend that these cases should be minimized, and even ignored, because they have "retreated" from the original
meaning of Miranda. n269 In fact, the Miranda opinion easily lent itself to this prophylactic reading. As Dickerson
explains:
Although the Court failed to specifically state the basis for its holding in Miranda, it did specifically state
what the basis was not. At no point does the Court refer to the warnings as constitutional rights. Indeed,
the Court acknowledged that the Constitution did not require the warnings, disclaimed any intent to
create a "constitutional straight-jacket," repeatedly referred to the warnings as "procedural safeguards,"
and invited Congress and the states "to develop their own safeguards for [protecting] the privilege."
n270
The Miranda opinion does contain some language that can be read as suggesting that a Miranda violation is a
constitutional violation [*235] because custodial interrogation is inherently compulsive. n271 But notwithstanding
this inherent compulsion rationale -- which would make every statement taken without Miranda warnings compelled
and every case admitting a custodial confession as voluntary both before and after Miranda wrongly decided -- the
Court wrote much of the opinion in the language of prophylaxis. Not only does the opinion have a curious "legislative"
feel about it, n272 but at various points the Court spoke of the "potentiality" of compulsion and the need for
"appropriate safeguards" in order "to insure" that statements were the product of free choice. n273 The Court also
discussed the possibility of Fifth Amendment rights being "jeopardized" (not actually violated) by custodial
interrogation. n274 Potential compulsion is, of course, different than inherent compulsion; jeopardizing Fifth
Amendment rights is different from actually violating them; and assuring that Fifth Amendment rights are protected is
different from concluding that Fifth Amendment rights actually have been infringed. This rationale is, therefore,
prophylactic in precisely the sense the more recent cases have used the term.
Further, the Court said that "unless a proper limitation upon custodial interrogation is achieved -- such as these
decisions will advance -- there can be no assurance that practices of this nature [practices gleaned from police
interrogation manuals, not from the records in the four cases before the Court] will be eradicated in the foreseeable
future." n275 A prophylactic rule, of course, seeks to prevent constitutional violations in future cases rather than to
discover whether a constitutional violation actually occurred in the case at hand.
The Miranda Court's treatment of the four cases before it is also illuminating. First, the Court did not turn to the

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facts of the cases until it had devoted more than fifty pages to a summary of its holding, a history of the Fifth
Amendment, a survey of police manuals, an elaboration of its holding, and "a miscellany of minor directives," n276
not actually involved in the cases. This total neglect of the facts is itself an indication that the Court was not interested
in the actual constitutionality of what had occurred. When it finally turned to the facts, the Court spent only eight pages
in concluding [*236] that all the confessions were obtained in violation of its new rules. In three of the cases, including
Miranda's, the Court gave no indication that the police had compelled the defendant's statements. Rather, it rejected the
confessions because no "steps" had been taken to protect Fifth Amendment rights. n277 Only in defendant Stewart's
case did the Court suggest the existence of actual compulsion. n278
To reject a prophylactic reading would defy not only common sense, but also recent empirical observations that
"very few incriminating statements, custodial or otherwise, are held to be involuntary." n279 To violate Miranda is not
necessarily to violate the Constitution and, although ambiguous in spots, Miranda recognized this from the beginning.
n280
b. Miranda's Application to the States.
The critics' attack on § 3501 rests primarily on Miranda's application to the states. The Justice Department, for
example, has said that "the Court's continued application of Miranda's exclusionary rule in state cases necessarily
means that Miranda rests on the Court's authority to apply the Constitution." n281 The basis for Miranda's
applicability to the states is interesting and (as the Department itself has explained) perplexing. n282 Nevertheless,
there is no need to come to a definitive conclusion when considering § 3501, [*237] provided that there are
explanations available other than that Miranda's exclusionary rule is constitutionally required.
Several others come readily to mind. Most obviously, like Mapp v. Ohio n283 and Bivens v. Six Unknown Named
Agents, n284 Miranda can be best understood not as a constitutional command, but as an exercise of this Court's
authority to improvise a remedy when it is presented with an issue implicating a constitutional right for which there is
not at the time of the decision a constitutionally or legislatively specified remedy. The judicially devised remedy may
sweep more broadly than is strictly necessary to vindicate a particular constitutional right. n285 This devising of
interstitial remedies not themselves required by Constitution but designed to assist in protecting constitutional rights,
has become known as the Court's power to create "constitutional common law." n286 Because the Court has crafted
such remedies to protect constitutional rights against the States as well as against the federal government, n287 this
understanding of Miranda's exclusionary rule is entirely consistent with its application to the States. This position
(unlike the position of the Department) is also consistent with the suggestion made by the Miranda court itself that the
national and State legislatures may substitute alternative remedial schemes for the one set out in Miranda. None of the
State cases decided since Miranda have involved an effort by Congress or the States to modify through legislation the
scope of the remedy created by Miranda. Thus, the continued application of Miranda to the States in the absence of
such a legislative effort represents no more than the application of the Court's judicially-created, but not constitutionally
mandated, remedial scheme in the absence of litigation concerning a legislatively devised alternative. n288
Such a remedial scheme can be modified by Congress. n289 The existence of such a residual power in Congress
is, for example, presumed [*238] throughout Bivens, n290 and lies at the heart of the Court's later holding in Bush v.
Lucas. n291 In that case, the Court refused to allow a "Bivens" remedy for money damages in an action brought by a
federal employee alleging a breach of his First Amendment rights, because Congress, by statute, had provided for a
different remedy. n292 Moreover, whatever the outer constitutional limits of Congress's power may be in this context,
it is plain that Congress acts within them so long as the remedial scheme it establishes provides "meaningful" relief for
any actual constitutional violation. n293 Replacing Miranda's automatic exclusionary rule with § 3501's regime was a
proper exercise of such congressional authority. Under § 3501, compelled custodial statements remain inadmissible in
all circumstances. Hence, § 3501 leaves intact the core holding of Miranda: that the prohibition against compelled
self-incrimination extends beyond in-court statements to regulate any use at trial of a defendant's pre-trial custodial
statements. Indeed, the relief of the statute affords for an actual constitutional violation involving such statements is
identical to the relief afforded by Miranda. That is sufficient per se to establish the statute's propriety, entirely apart

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from the supplemental features of § 3501 and related law which will be discussed shortly. n294
The act of state doctrine provides a related illustration of the Court imposing rules on the state beyond what the
Constitution requires -- rules susceptible to congressional alteration. Banco Nacional de Cuba v. Sabbatino, n295
decided just two years before Miranda, involved a diversity action brought in federal court under New York state law.
New York had its own version of the act of state doctrine. Thus, a preliminary question was whether the Court was
bound by the New York courts' application of the New York act of state doctrine, or whether the Court could fashion a
federal act of state rule to govern the case. The Court unambiguously held the [*239] latter. In the Court's view, the
federal interest in protecting the separation of powers in foreign affairs gave the doctrine "constitutional underpinnings"
n296 that permitted the Court to impose this limitation on state law, even though the Constitution did not actually
require the act of state rule. n297 In words that echo language found in Miranda cases, Sabbatino described the act of
state doctrine as "a principle of decision binding on federal and state courts alike but compelled by neither international
law nor the Constitution," and explained that "there are enclaves of federal judge-made law which bind the States."
n298 Since Sabbatino, Congress has passed legislation overriding the act of state doctrine (that is, permitting federal
and state courts to adjudicate the legality of the acts of foreign governments) in several specific instances. n299 Courts
have routinely upheld these laws, n300 thus confirming the Court's statement in Sabbatino that the Constitution does
not require the act of state doctrine. However, in the absence of specific congressional legislation, lower courts have
used the federal act of state doctrine to limit the scope of state statutes that would otherwise require a judgment upon an
act of a foreign government -- thus confirming that the (nonconstitutional) Sabbatino rule applies to the states. By
analogy, then, just as Congress is free to alter the application of the act of state doctrine, so too is it free to alter the
application of the Miranda doctrine.
Entirely apart from the questions of constitutional common law and the like, the Miranda Court may not have
focused on the question of whether the federal courts have supervisory power over the States. It was, after all, resolving
a slew of other important issues. Since the Miranda decision, no case has arisen where a party has seriously presented to
the Court the question of whether Miranda's prophylactic approach can be reconciled with the Court's cases holding that
the federal courts lack supervisory power over the [*240] States. Let there be no mistake about it, however, in both
state and federal cases, the Court has described Miranda as prophylactic. In Oregon v. Elstad, for example, the Court, in
response to Justice Stevens, said most directly that "a simple failure to administer Miranda warnings is not itself a
violation of the Fifth Amendment." n301 To uphold § 3501 in a federal case, therefore, a court need go no further than
recognize congressional power to supercede rules that are not constitutionally required. n302
c. Miranda's Application in Federal Habeas Corpus
Critics of § 3501 have additionally claimed that Miranda's constitutional status is supported by the fact that the
Court held Miranda claims to be cognizable in federal habeas corpus proceedings in Withrow v. Williams. n303
Habeas corpus extends to persons who are in custody "in violation of the Constitution, laws or treaties of the United
States." n304 The critics like the Justice Department reason that, "because Miranda is not a 'law' or a treaty, the Court's
holding in Withrow necessarily depends on the premise that" Miranda is a constitutional right. n305 A "law" for
purposes of federal habeas review, however, consists not merely of federal statutes. n306 This prompted one leading
commentator to conclude that Miranda claims present issues about a "law" of the United States. n307
Of course, we do not know precisely on what jurisdictional basis the Withrow Court relied, because that issue was
not before the Court and the majority specifically wrote to chide the dissent for [*241] addressing a point which "goes
beyond the question on which we granted certiorari." n308 In any event, the question surrounding § 3501 is whether
Miranda is ordinary constitutional law or something akin to common law, which Congress can overrule. Either way,
Miranda is cognizable in federal habeas corpus and Withrow is unilluminating.
Withrow also did not change the Court's view of Miranda as prophylactic. The Court in fact accepted the
petitioner's premise (supported by the Department as amicus curiae) that "the Miranda safeguards are not constitutional
in character, but merely 'prophylactic,'" but it rejected her conclusion that, for that reason, Miranda issues should not be

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cognizable in habeas corpus. n309 The Court conceded that Miranda might require suppression of a confession that
was not involuntary, n310 the reason the decision has been called prophylactic. The Withrow Court nonetheless
allowed Miranda claims to be cognizable in habeas corpus for largely prudential reasons. n311 In short, Withrow in no
way detracts from Miranda's stature as merely prophylactic and not constitutionally required. Whatever small doubt
there may have been on this point was erased the following year, when the Court repeated (in its most recent discussion
of the status of the Miranda rules) that they are "not themselves rights protected by the Constitution." n312
B. SECTION 3501 AS A CONSTITUTIONALLY ADEQUATE ALTERNATIVE TO MIRANDA
The foregoing argument establishes that § 3501 is a valid exercise of Congress' undoubted power to override
non-constitutional procedures and establish the rules for federal courts. But an alternative, independent analysis leads to
exactly the same conclusion: Section 3501 -- read in combination with other bodies of law providing criminal, civil, and
administrative remedies for coercion during interrogation along with the Fifth Amendment's exclusionary rule for
coerced confessions -- leaves in place a constitutionally adequate alternative to the inflexible Miranda exclusionary
rule.
In Miranda itself, the Supreme Court specifically wrote to "encourage Congress and the States to continue their
laudable search [*242] for increasingly effective ways of protecting the rights of the individual while promoting
efficient enforcement of our criminal laws." n313 The Court explained:
It is impossible for us to foresee the potential alternatives for protecting the privilege which might be
devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore we
cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent
compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a
constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this
effect. n314
The Court concluded that, if it were "shown other procedures which are at least as effective in appraising accused
persons of their right of silence and in assuring a continuous opportunity to exercise it," the Court could simply dispense
with the Miranda safeguards. n315
The Court's statements about which "other procedures" would be sustained was obviously dicta, because no such
alternatives were before the Court and, indeed, no briefing discussing such alternatives was provided. n316 Relying on
this language, however, the statute's [*243] critics have attempted to make short work of the possibility of sustaining §
3501 on this basis. The Justice Department has argued that "Congress did not accept the Court's invitation to devise an
alternative procedural safeguard for Fifth Amendment rights; rather, it sought through Section 3501 to restore the test
for admissibility of custodial statements that prevailed before Miranda." n317 Similarly, Professor Kamisar simply
views the statute as "repealing" Miranda and "reinstating the due process 'totality of the circumstances' -- 'voluntariness'
test for the admissibility of confessions." n318 These arguments are flawed in at least two important respects.
First, in some ways the statute extends beyond the pre-Miranda voluntariness law that existed before 1966 and
beyond current Supreme Court Miranda doctrine. n319 For example, § 3501(b)(2) of the statute requires the
suppression judge to consider whether the "defendant knew the nature of the offense with which he was charged or of
which he was suspected at the time of the confession . . . ." n320 This requirement actually reaches beyond current
case law, as the Supreme Court held that a suspect can waive her Miranda rights even if she does not know the offense
about which she is being questioned. In Colorado v. Spring, the Court concluded that the failure of police to inform a
suspect "of the subject matter of the interrogation could not affect [his] decision to waive his Fifth Amendment privilege
in a constitutionally significant manner." n321 Going farther than the Spring decision, § 3501(b)(2) makes the subject
matter of the interrogation a relevant factor in determining whether to admit the statement.
Section 3501(b)(3) also requires consideration of "whether or not such defendant was advised or knew that he was

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not required to make any statement and that any such statement could be used [*244] against him . . . ." n322 This
section is broader than pre-Miranda law in recognizing a suspect's right to remain silent during police questioning, a
position that critics of pre-Miranda case law had long espoused. n323 And in making relevant the question of whether
a defendant was "advised" of this right, the section promotes direct recognition of the need for federal officers to give
Miranda-style warnings to suspects. Section 3501(b)(3) extends well beyond pre-Miranda case law with its apparent
statutory recognition of a right to counsel during interrogation. Section 3501(b)(4) requires consideration of "whether or
not such defendant had been advised prior to questioning of his right to the assistance of counsel." n324 Section
3501(b)(5) further requires consideration of "whether or not such defendant was without the assistance of counsel when
questioned and when giving such confession." Before Miranda, no general right to assistance of counsel existed during
police questioning. n325 Finally, the statute apparently enhances jury scrutiny of confessions by requiring the trial
judge to instruct the jury to give the confession only such weight as the jury feels it deserves "under all the
circumstances." n326 Accordingly, these parts of § 3501 provide to defendants more consideration than they had under
the pre-Miranda voluntariness test. n327 If there is any ambiguity on this point, conventional rules of statutory
construction would require the Court to read the statute so as to save it from unconstitutionality. n328 The statute
directs federal trial courts to "take into consideration all the circumstances surrounding the giving of the confession . . .
." n329 While the absence of any of the factors "need not be conclusive" on the issue of admissibility, n330 the Court
is certainly free to read the statute as requiring courts to give, for example, "strong consideration" to the absence of
warnings as a factor suggesting a confession is involuntary.
Second, not only does § 3501 by itself go beyond the pre-Miranda [*245] rules, but the statute must be examined
against the backdrop of all federal law bearing on the subject. n331 Critics simply look at the statute by itself,
concluding that it alone is not a viable alternative to Miranda. n332 The Supreme Court, however, will not decide
whether § 3501, standing in splendid isolation, would be an acceptable alternative to Miranda. The interrogation
practices of federal officers are addressed not solely in § 3501, but also by other federal statutes and related bodies of
law that provide the possibility of criminal, civil, and administrative penalties against federal law enforcement officers
who coerce suspects. Taken together, these remedies along with § 3501 form a constitutional alternative to the judicially
created exclusionary rule in Miranda.
Congress established criminal penalties for federal law enforcement officers who willfully violate the constitutional
rights of others. A federal civil rights statute provides that whoever "under color of any law . . . willfully subjects any
person in any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected
by the Constitution or laws of the United States, shall be subject to criminal liability." n333 Similarly, 18 U.S.C. § 241
prohibits conspiracies to violate constitutional rights. These statutes apply to federal law enforcement officers n334
who obtain coerced confessions. n335 While Congress adopted these statutes during the Reconstruction Era, they have
undergone significant judicial interpretation since Miranda. Indeed, the Supreme Court recently explicated the breadth
of the statute. n336 In addition, the Justice Department's Civil Rights Division and the FBI now fully support
enforcement of these statutes against federal officials. n337
Civil penalties against federal officers who violate constitutional rights are also now available. When the Court
decided Miranda, as a practical matter it was not possible to seek damages from federal law enforcement officers who
violated Fifth Amendment rights. n338 [*246] That changed in 1971, when the Supreme Court decided Bivens v. Six
Unknown Named Agents. n339 The Court held that a complaint alleging that federal agents acting under color of their
authority violated the Fourth Amendment and gave rise to a federal cause of action for damages. Since then, courts have
held that Bivens actions apply to abusive police interrogations, either as violations of the Fifth Amendment
Self-Incrimination Clause or violations of the Due Process Clause. n340
When the Court decided Miranda, the federal government was also effectively immune from civil suits arising out
of Fifth Amendment violations. At the time, sovereign immunity barred recovery for many intentional torts which might
normally form the basis for such suits, including false arrest, false imprisonment, abuse of process, assault, battery, and
malicious prosecution. n341 After Miranda, Congress acted to provide that the federal government is civilly liable for
damages for conduct that could implicate Fifth Amendment concerns. In 1974, Congress amended the Federal Tort

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Claims Act to make it applicable "to acts or omissions of investigative or law enforcement officers of the United States
Government" on any subsequent claim arising "out of assault, battery, false imprisonment, false arrest, abuse of
processes, or malicious prosecution." n342
In addition to these civil remedies, there is also now in place a well-developed system providing internal
disciplinary actions against federal officers who violate the regulations of their agencies. As the Department of Justice
explained in connection with the Fourth Amendment exclusionary rule, devices for preventing constitutional violations
include:
(1) comprehensive legal training . . . (2) specific rules and regulations governing the conduct of
employees, and the use of investigative techniques such as searches and seizures; [*247] (3)
institutional arrangements for conducting internal investigations of alleged violations of the rules and
regulations; and (4) disciplinary measures that may be imposed for unlawful or improper conduct. n343
The Department's observations apply not merely to search and seizure violations, but also to the use of coercion during
custodial interrogations.
Finally, it is crucial to remember that the Fifth Amendment itself provides its own exclusionary remedy. Actual
violations of the Fifth Amendment, as opposed to "mere" Miranda violations, will always lead to the exclusion of
evidence -- regardless of the interpretation of § 3501. n344
The Miranda decision, of course, is not binding on the question of alternatives, as the Court in 1966 had no
opportunity to consider such subsequent developments as the Bivens decision in 1971 and the amendment of the Federal
Tort Claims Act in 1974. As the Department of Justice explained in connection with the Fourth Amendment
exclusionary rule, "the remedial landscape has changed considerably" since the early 1960s. n345 Taken together, the
combination of criminal, civil, and administrative remedies now available for coerced confessions -- along with the
Fifth Amendment's exclusion of involuntary statements -- renders Miranda's prophylactic remedy overprotective and
therefore subject to modification in § 3501. Unlike the Miranda exclusionary rule, which "sweeps more broadly than
the Fifth Amendment itself . . . [and] may be triggered even in the absence of a Fifth Amendment violation[,]" n346
the criminal and civil sanctions Congress adopted focus more narrowly on conduct that directly implicates the Fifth
Amendment proscription against compelled self-incrimination. n347 At the same time, they provide stronger remedies
against federal agents who coerce confessions than does the Miranda exclusionary rule. It is well known that the
exclusion of evidence "does not apply any direct sanction to the individual official whose illegal conduct" is at issue.
n348 Thus, the [*248] Miranda exclusionary rule would not be expected to have much effect on police intent on
coercing confessions or otherwise violating constitutional standards. It should therefore come as no surprise that "there
has been broad agreement among writers on the subject that Miranda is an inept means of protecting the rights of
suspects, and a failure in relation to its own premises and objectives." n349
In contrast, civil remedies directly affect the offending officer. As the Department itself explained some years ago,
"even if successful Bivens suits are relatively rare, the mere prospect of such cases being brought is a powerful
disincentive to unlawful conduct. It defies common sense to suppose that fear of a suit against [a federal] officer in his
individual capacity, in which he is faced with the possibility of personal liability, has no influence on his conduct."
n350 Similarly, civil actions against the United States provide a tangible financial incentive to insure federal practices
comport with constitutional requirements. Likewise, internal disciplinary actions against federal agents are an important
part of the calculus. In refusing to extend the Fourth Amendment exclusionary rule to civil deportation proceedings, the
Supreme Court explained that "by all appearances the INS has already taken sensible and reasonable steps to deter
Fourth Amendment violations by its officers, and this makes the likely additional deterrent value of the exclusionary
rule small." n351
Bearing firmly in mind that the Fifth Amendment will itself continue to provide an exclusionary rule for
involuntary confessions, Congress acted within its powers in accepting Miranda's invitation to craft an alternative

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approach to insure that federal agents respect the Fifth Amendment. That regime subjects officers who forcibly extract
confessions to criminal sanctions, n352 civil actions (Bivens), and administrative remedies (internal disciplinary rules
of various agencies), and their employing federal agencies to civil actions under the Federal Tort Claims Act. n353 At
the same time, that regime allows federal prosecutors to use voluntary confessions as evidence. n354 This is an
entirely reasonable and, in many ways, more effective approach to securing respect for the Fifth Amendment [*249]
than the Miranda exclusionary rule and, therefore, is fully compatible with both the Constitution and Miranda's call for
Congress to develop alternative approaches. n355
[*250] C. SECTION 3501 AND POLICING THE POLICE
Because critics sometimes exaggerate the effects of § 3501, it is important to note that a decision upholding the
law, on whatever theory, will not somehow "unleash" federal enforcement agents to trample on the rights of suspects.
n356 Section 3501 permits the introduction of only "voluntary" statements, a determination made by the judiciary -- not
the police. Supplementing the requirement of a judicial finding of voluntariness, § 3501 imposes the additional
safeguard that the jury, too, assess voluntariness and the ultimate truthfulness of any confession. n357 The
voluntariness test, even before Miranda, was developing into a powerful tool for blocking police abuses. n358 If the
substantive issue of voluntariness, rather than technical questions of Miranda compliance, became the focus of
suppression hearings, courts might well wield a more discriminating tool for dealing with improper interrogation tactics.
n359 They would probably even have greater success in identifying situations in which an innocent person has falsely
confessed to a crime. n360 At the same time, focusing on voluntariness is not, as is sometimes claimed, a task beyond
judicial ken. To the contrary, courts across America regularly make such determinations. n361 For example, whenever
a court suppresses a confession on Miranda grounds, it must go on to make a voluntariness ruling, as this governs
whether the prosecution can impeach the defendant with the statement n362 or can use derivative evidence from the
confession. n363
Section 3501 also specifically provides that warnings to suspects are relevant considerations in the voluntariness
determination. n364 [*251] While warnings are only one factor in the voluntariness determination, n365 the fact that
they are singled out provides strong incentives for law enforcement officers to provide advice of rights. n366 The
Dickerson opinion was quite clear on this point, stating: "Lest there be any confusion on the matter, nothing in today's
opinion provides those in law enforcement with an incentive to stop giving the now familiar Miranda warnings. . . .
Those warnings are among the factors a district court should consider when determining whether a confession was
voluntarily given." n367 Indeed, after the ruling in Dickerson, federal law enforcement agencies have continued to
follow the Miranda procedures in the five states comprising the Fourth Circuit. The Attorney General has also stated
that even if Miranda was overruled outright, "federal law enforcement agencies would, as a matter of policy, continue
to comply with the warnings requirements of Miranda." n368
While many police practices would thus remain unchanged under § 3501, the courts would no longer have to
wrestle with fine points of Miranda compliance (custody, interrogation, waivers, and the like). This is no small benefit,
as despite the frequent claim that Miranda's "bright line" rules are straightforward, in fact they present myriad
complications. Some of the leading criminal procedure casebooks, for example, spend dozens and dozens of pages on
the doctrine. n369 The resulting complexities produce substantial litigation. n370 Section 3501 thus presents the
"win-win" solution of maintaining [*252] judicial oversight of police tactics while ending the need to free guilty
criminals on, as Dickerson put it, "mere technicalities." n371 In light of all this, § 3501 survives constitutional
challenge.
IV. SECTION 3501 AND THE FUTURE OF POLICE INTERROGATION
So far this article has developed the arguments why the Department of Justice should be defending § 3501 and why,
in any event, the courts should uphold it. A final issue, however, remains to be considered: What real world difference
would the statute make? The critics of § 3501 have occasionally suggested that § 3501 would not enhance public safety
because federal prosecutors can often prevail even under the Miranda exclusionary rule. n372 For example, the Justice

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Department's recent brief contends that § 3501 should not be applied because "Miranda is workable in practice" and
that "Miranda's core procedures are not difficult to administer." n373 Such claims entirely miss the point of § 3501.
The provision seeks not to stop the delivery of Miranda warnings n374 but rather the suppression of voluntary
confessions that have, for some [*253] reason, been obtained in a way that departs from Miranda. In such cases, of
course, the Miranda rules have proven to be "difficult to administer" because the police officer has somehow departed
from them. The Dickerson case itself serves as a good illustration. The district judge found Dickerson's confession was
voluntary, n375 a conclusion hard to fault. n376 Yet because of a question over precisely when his Miranda warnings
were delivered, it is possible that Dickerson's confession may be excluded. n377 While Dickerson has not reached a
final conclusion, there is no doubt about the result of the failure to apply § 3501 in United States v. Leong. In that case,
a routine traffic stop had, apparently in less than a minute, matured into a "custodial" situation requiring the delivery of
Miranda warnings. n378 Because of the officer's failure to instantly recognize this transformation, n379 defendant
Tony Leong suppressed his confession on Miranda grounds and escaped conviction for being a convicted felon in
possession of a firearm.
No one has compiled a list of cases actually brought where the convictions of criminals were imperiled by
Miranda's rigid exclusionary rule. A few such cases are collected below. n380 Such cases [*254] are, of course, only
the proverbial tip of the iceberg, because many other prosecutions undoubtedly are not pursued because of Miranda
problems. n381
Beyond the cases in which the Miranda rules might suppress a confession that police have already obtained are the
far larger number cases in which the Miranda rules prevent the police from ever obtaining confessions. In a trilogy of
recent articles, I have attempted to quantify the harmful effects of Miranda on law enforcement efforts to gather
confessions. In the Northwestern University Law Review, I exhaustively canvassed the before-and-after studies of
confession rates in the wake of the Miranda decision, concluding that virtually all the reliable studies showed a
substantial drop in the confession rate. n382 In the UCLA Law Review, Bret Hayman and I [*255] report original
empirical research on the confession rate in Salt Lake County, Utah, in 1994, reporting an overall confession rate of
only 33 percent -- well below that reported in the available pre-Miranda data. n383 Finally, in the Stanford Law
Review, Richard Fowles and I demonstrated that crime clearance rates fell sharply all over the country immediately after
Miranda and remained at these lower levels over the next three decades. n384 We develop at length reasons for
attributing this decline to the Supreme Court's imposition of the Miranda requirements, n385 a conclusion supported
by recent testimony from the nation's largest organization of law enforcement professionals. n386
If my conclusions in these earlier articles are correct, Miranda substantially harms the ability of law enforcement to
protect society. Its technical rules prevent the conviction of countless guilty criminals, condemning victims of these
crimes to see justice denied and fear crimes reprised. Its barriers to solving crimes also create substantial risks for
innocent persons wrongfully caught up in the criminal justice system, who desperately need a confession from the true
offender to extricate themselves. n387 This article, however, is not [*256] the place to revisit the details of the debate
over the precise scope of Miranda's costs. For present purposes it is enough to follow intuition and logic to posit that
Miranda entails at least some identifiable harm to law enforcement n388 -- otherwise, there is no point to the
restrictions. n389 The real tragedy of Miranda is not that the decision produces costs, but that it produces unnecessary
costs that could be avoided by perfectly reasonable alternatives -- such as § 3501.
The Miranda rules are, obviously, only one way of regulating police questioning. As emphasized in this article, the
Miranda Court itself promised that "our decision in no way creates a constitutional straitjacket which will handicap
sound efforts at reform," and invited Congress and the States to consider possible replacements. n390 Justice Harlan
responded that, "despite the Court's disclaimer, the practical effect of the decision made today must inevitably be to
handicap seriously sound efforts at reform . . . ." n391 Justice White, too, predicted that "the Court's constitutional
straitjacket" would "foreclose[] more discriminating treatment by legislative or rule-making pronouncements." n392
On this dispute, no one can doubt that the majority was wrong and the dissenters were right. More than three decades
after the decision, virtually no serious efforts at reform have materialized other than § 3501. In its 1986 Report, the
Department of Justice put the point nicely:

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The Miranda decision has petrified the law of pre-trial interrogation for the past twenty years,
foreclosing the possibility of developing and implementing alternatives that would be of greater
effectiveness both in protecting the public from crime and in ensuring fair treatment of persons [*257]
suspected of crime. . . . Nothing is likely to change in the future as long as Miranda remains in effect and
perpetuates a perceived risk of invalidation for any alternative system that departs from it. n393
The reasons for lack of experimentation in this area are not hard to imagine. No state is willing to risk possible
invalidation of criminal convictions by deviating from Miranda until the Supreme Court clearly explains what
alternatives will survive its scrutiny.
What is at stake with the current litigation over § 3501, then, is whether the 5-to-4 decision by the Warren Court
will be forever enshrined as the mandated approach for regulating police interrogation, or whether the Supreme Court is
serious about its promise to consider reasonable alternatives. The Miranda rules are not an end in themselves, but rather
a means of safeguarding the Fifth Amendment -- that is, a means of insuring that confessions are voluntary. The
Miranda rules overprotect the Fifth Amendment, extending beyond the Fifth Amendment's voluntariness requirements.
Perhaps that overbreadth could be justified if it purchased considerable benefits. But with thirty years of experience to
draw upon, we know that the Miranda rules have not done much to restrict whatever abusive police practices might
have existed. As one careful scholar concluded, "what evidence there is suggests that any reductions that have been
achieved in police brutality are independent of the Court and started before Miranda." n394 Another general survey
concluded that there appears to be "general agreement among writers on the subject that Miranda is an inept means of
protecting the rights of suspects . . . ." n395 The decision, thus, has done little to protect core Fifth Amendment values
while, at the same time, exacting its social costs. These costs, it should be emphasized, stem not from the famous
Miranda warnings, which appear to have little effect on suspects, but rather from the less-appreciated Miranda waiver
and questioning cut-off rules, which block police questioning of a large number of suspects. n396 These costs also fall
most heavily on those in the worst position to bear them, including racial minorities and the poor. n397
[*258] Against this backdrop, simply replacing Miranda with § 3501 would, by itself, be a good bargain for
society. But a Court decision upholding § 3501 would, unlike Miranda for the last three decades, encourage further
exploration of how to regulate police questioning. A favorable ruling on § 3501 could well usher in consideration of
new approaches to protect against police extorting involuntary confessions while, at the same time, producing more
voluntary confessions. Following a favorable ruling on § 3501, for example, one would expect federal agencies to
seriously consider expanding the limited videotaping program that FBI has recently announced. n398 Commentators
have suggested videotaping as a substitute for some of the Miranda procedures, arguing that taping of interrogations can
both offer superior protection against police abuses while, at the same time, not deterring suspects from voluntarily
providing confessions. n399 Another possibility that might be explored would be bringing arrested suspects before a
magistrate, who would ask reasonable questions about the crime. n400 Here again, this approach might better protect
against police abuse while, at the same time, gain for society the benefits of voluntary information about criminals
offenses. Alternatives like this will prosper if the Supreme Court upholds § 3501 and signals that the Miranda rules are
not set in stone. n401 On the other hand, should the Court strike down § 3501, reform efforts will remain stultified.
n402
Justice White's dissent in Miranda warned that "in some unknown number of cases the Court's rule will return a
killer, a rapist or other criminal to the streets . . . to repeat his crime whenever it [*259] pleases him." He continued,
"There is, of course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case." n403 In
passing § 3501, Congress sought to consider not only criminal suspects who could press their claims before the courts
but also these "unnamed and unrepresented" victims of crime. The congressional enactment reflects "the people's
assessment of the proper balance to be struck between concern for persons interrogated in custody and the needs of
effective law enforcement." n404
Yet in spite of this clear command from Congress, § 3501 truly became the law that time forgot. It has been largely
ignored by the courts and, in recent years, actually undermined by the Department of Justice. The refusal to use the law

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has had harmful consequences for public safety that will probably never be completed calculated. As Justice Scalia
bluntly concluded, applying Miranda rather than § 3501 "may have produced -- during an era of intense national
concern about the problem of run-away crime -- the acquittal and the nonprosecution of many dangerous felons,
enabling them to continue their depredations upon our citizens. There is no excuse for this." n405
It is time for the excuses to end. It is time for the Supreme Court to uphold § 3501.
Legal Topics:
For related research and practice materials, see the following legal topics:
Constitutional LawBill of RightsFundamental RightsSearch & SeizureExclusionary RuleCriminal Law &
ProcedureInterrogationMiranda RightsPublic Safety ExceptionGovernmentsLocal GovernmentsPolice Power
FOOTNOTES:

n1 166 F.3d 667 (4th Cir. 1999).
n2 Pub. L. No. 90-351, tit. II, § 701(a), 82 Stat. 210 (1968) (codified as amended at 18 U.S.C. § 3501).
n3 Dickerson, 166 F.3d at 672, 688 (quoting Miranda v. Arizona, 384 U.S. 436, 467 (1966)).
n4 Miranda, 384 U.S. at 467.
n5 Dickerson, 166 F.3d at 672.
n6 Id. at 692-93. The district court concluded that Dickerson received his Miranda warnings only after he
confessed, a factual conclusion the Fourth Circuit questioned but did not find to be clearly erroneous. See id. at
676-80 (questioning, but not correcting, the district court's conclusion).
n7 Yale Kamisar, Confessions, Search and Seizure, and the Rehnquist Court, 34 TULSA L.J. 465, 470
(1999) [hereinafter Kamisar, Confessions].
n8 Yale Kamisar, The Miranda Warning Takes a Body Blow, L.A. TIMES, Feb. 17, 1999, at B7 [hereinafter
Kamisar, Body Blow].
n9 Stephen J. Schulhofer, "Miranda" Now on the Endangered Species List, NAT'L L.J., Mar. 1, 1999, at
A22.
n10 Miranda Mischief, N.Y. TIMES, Feb. 15, 1999, at A1 [hereinafter Mischief].
n11 Petition for Writ of Certiorari at 9-14, Dickerson v. United States, (July 30, 1999) (No. 99-55-25).

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85 Iowa L. Rev. 175, *259

n12 Dickerson v. United States, 166 F.3d 667 (1994), cert. granted, 1999 WL 593195 (U.S. Dec. 6, 1999))
(No. 92-1949). I have been appointed to brief and argue the case on behalf of the Fourth Circuit's ruling. For a
general discussion of what the Court will do with the case, see Roger Parloff, Miranda on the Hot Seat, N.Y.
TIMES, Sept. 26, 1999, § 6 (Magazine), at 85.
n13 Along with Paul Kamenar, I represented WLF in this action.
n14 Brief for the United States in Support of Partial Rehearing En Banc, United States v. Dickerson, 166
F.3d 667 (4th Cir. 1999) (No. 97-4750).
n15 Carrie Johnson, DOJ Gets Miranda Warning: Prosecutors Mount Campaign Urging Solicitor General
to Back Superseding Statute, LEGAL TIMES, Nov. 1, 1999, at 1.
n16 Brief for the United States, Dickerson v. United States (Nov. 1999) (No. 99-5525).
n17 One immediate consequence is that, after the Court granted certiorari, it needed to appoint an amicus to
defend the decision of the Fourth Circuit. See, e.g., Borsley v. United States, 523 U.S. 614, 618 (1998)
(appointing amicus); The Washington Legal Foundation, represented by Paul Kamenar and I, has filed an
amicus brief supporting the Fourth Circuit and offering its service as such an amicus should the Court find it
useful. See Brief of Amicus Curiae WLF, Dickerson v. United States (U.S. Nov. 1, 1999) (No. 99-5525) (visited
Nov. 17, 1999) <http: www.law.utah.edu/faculty/bios/cassell>. The court accepted the offer, and appointed me
to defend the opinion below.
n18 Dickerson, 166 F.3d at 672.
n19 U.S. CONST. art. II, § 3.
n20 See 5 Op. Off. Legal Counsel 25, 25-26 (Apr. 6, 1981).
n21 Attorney General Janet Reno, Press Conference (Feb. 11, 1999) (transcript available at
<http://www.usdoj.gov/ag/speeches/1999/feb1199.htm>); see Brief for the United States at 37 n.23, Dickerson
v. United States (U.S. Nov. 1, 1999) (No. 99-5525).
n22 See Brief for the United States at 17, Dickerson (No. 99-5525) ("In sum, this Court's Miranda
jurisprudence establishes that the Miranda rules . . . have a constitutional foundation."); Brief for the United
States in Support of Partial Rehearing En Banc at 12, United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999)
(No. 97-4750) ("On the current state of the Supreme Court's Miranda jurisprudence, taken as a whole, this Court
may not conclude that the Miranda rules lack a constitutional foundation.").
n23 Miranda v. Arizona, 384 U.S. 436, 467 (1966) (emphasis added).
n24 See infra notes 372-73 and accompanying text.

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85 Iowa L. Rev. 175, *259

n25 See infra notes 37-44, 218 and accompanying text.
n26 A 1974 ABA survey of lawyers, judges, and law professors found that Miranda was the third most
notable decision of all time, trailing only Marbury v. Madison and United States v. Nixon and leading Brown v.
Board of Education. See JETHRO K. LIEBERMAN, MILESTONES! 200 YEARS OF AMERICAN LAW:
MILESTONES IN OUR LEGAL HISTORY at vii (1976) (citing the ABA's informal survey of the readers of
the American Bar Association Journal, which asked the respondents to vote on the "Milestones" of "Two
Hundred Years of American Law." Of the Supreme Court decisions chosen, Miranda was the third most noted).
n27 Miranda, 384 U.S. at 457. For a fascinating discussion of the Warren Court's characterization of
Miranda and other criminal defendants, see Bernard E. Harcourt, Imagery and Adjudication in the Criminal
Law: The Relationship Between Images of Criminal Defendants and Ideologies of Criminal Law in Southern
Antebellum and Modern Appellate Decisions, 61 BROOK. L. REV. 1165, 1192-96 (1995).
n28 I have argued that the interests of crime victims should be considered in our criminal justice system.
See, e.g., Paul G. Cassell, Barbarians at the Gates? A Reply to the Critics of the Victims' Rights Amendment,
1999 UTAH L. REV. 479 (symposium edition); Laurence H. Tribe & Paul G. Cassell, Embed the Rights of
Victims in the Constitution, L.A. TIMES, July 6, 1998, at B5 (arguing for passage of the Victim's Rights
Amendment); cf. Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model,
1999 UTAH L. REV. 289 (developing an argument for independent consideration of victims' interests). In that
vein, I attempted to contact the victim in the Miranda case about her reaction to the Supreme Court's ruling. I
heard through an intermediary that she had no interest in revisiting the past events.
n29 See Captain Carroll F. Cooley, You Have the Right to Remain Silent . . .: The Inside Story of Miranda
v. Arizona (unpublished manuscript) (on file with author). I appreciate Captain Cooley's gracious permission to
reproduce his work here.
n30 The material between the asterisks below is from Captain Cooley's account. I have added the footnotes
to Captain Cooley's text and extracted only the portion of his manuscript dealing with Miranda's interrogation.
The editors of the Iowa Law Review have lightly edited this section for clarity.
n31 Not her real name.
n32 Not his real name.
n33 Not her real name.
n34 Arizona v. Miranda, 401 P.2d 721, 733 (Ariz. 1965).
n35 See Brief for Petitioner at 2, Miranda v. Arizona, 384 U.S. 436 (1966) (No. 759) (listing only the Sixth
and Fourteenth Amendments as the "constitutional provisions involved"); see also YALE KAMISAR ET AL.,
MODERN CRIMINAL PROCEDURE: CASES, COMMENTS, QUESTIONS 474-75 (9th ed. 1999)
(discussing how Miranda's Supreme Court lawyer explained that his brief focused entirely on the Sixth
Amendment).

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85 Iowa L. Rev. 175, *259

n36 384 U.S. 436 (1966).
n37 JOSEPH D. GRANO, CONFESSIONS, TRUTH AND THE LAW 173 (1993) (quoting Miranda, 384
U.S. at 491); see also David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190, 190
(1988) (stating that Miranda "reads more like a legislative committee report with an accompanying statute").
n38 See generally GRANO, supra note 37, at 59-83 (discussing the "voluntariness" doctrine in
confessions).
n39 See Catherine Hancock, Due Process Before Miranda, 70 TUL. L. REV. 2195 (1996) (summarizing the
doctrine); Yale Kamisar, What is an "Involuntary" Confession? Some Comments on Inbau and Reid's Criminal
Interrogation and Confessions, 17 RUTGERS L. REV. 728 (1963) (same); see also Welsh S. White, What is an
Involuntary Confession Now?, 50 RUTGERS L. REV. 2001 (1998) (updating Kamisar's analysis).
n40 See Miranda, 384 U.S. at 467-74 (discussing warning requirement).
n41 See James Tomkovicz, Standards for Invocation and Waiver of Counsel in Confession Contexts, 71
IOWA L. REV. 975, 977-78 (1986) (describing standards for waiver of counsel).
n42 See Miranda, 384 U.S. at 474-77 (holding a suspect's Fifth Amendment rights are not violated if police
refrain from questioning him after he invokes his right to counsel).
n43 See id. at 478-79 ("But unless and until such warnings and waiver are demonstrated at trial, no evidence
obtained as a result of interrogation can be used against him.").
n44 Id. at 490.
n45 Id. at 505 (Harlan, J., dissenting).
n46 Id. at 531 (White, J., dissenting).
n47 Miranda, 384 U.S. at 542 (White, J., dissenting).
n48 See More Criminals to Go Free? Effect of High Court's Ruling, U.S. NEWS & WORLD REP., June 27,
1966, at 32, 33 (quoting Los Angeles Mayor Samuel W. Yorty).
n49 See id. (noting Professor Fred E. Inbau's prediction that law enforcement officials would choose not to
prosecute many cases because of Miranda).
n50 See Controlling Crime Through More Effective Law Enforcement: Hearings Before the Subcomm. on
Criminal Laws and Procedures of the Senate Comm. on the Judiciary, 90th Cong. (1967) [hereinafter

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85 Iowa L. Rev. 175, *259

Controlling Crime Hearings].
n51 See id. at 326-29 (citing the statement of Quinn Tamm, Exec. Dir., Int'l Ass'n of Chiefs of Police)
(explaining that Supreme Court decisions hindering effective law enforcement have decreased the morale of the
police and hampered police efforts to decrease crime).
n52 S. REP. NO. 90-1097, at 37, 46 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2123-38.
n53 See FRED P. GRAHAM, THE SELF-INFLICTED WOUND 320 (1970).
n54 See Mallory v. United States, 354 U.S. 449 (1957); McNabb v. United States, 318 U.S. 332 (1943).
n55 See 18 U.S.C. § 3501(c) (1994) (addressing the time restraints for obtaining confessions).
n56 388 U.S. 218 (1967).
n57 See 18 U.S.C. § 3502 (1994) (addressing the admission into evidence of eyewitness testimony).
n58 See U.S. DEP'T OF JUSTICE, OFFICE OF LEGAL POLICY, REPORT TO THE ATTORNEY
GENERAL ON THE LAW OF PRE-TRIAL INTERROGATION 67 (1986) [hereinafter OLP REPORT],
reprinted in 22 U. MICH. J.L. REFORM. 437, 515 (1989).
n59 See infra notes 319-30 (explaining how § 3501 extends beyond the pre-Miranda voluntariness test).
n60 Reno, supra note 21; see Brief for the United States at 37 n.23, Dickerson v. United States (U.S. Nov.
1, 1999) (No. 99-5525) (asserting decision not to invoke § 3501 in Dickerson was "consistent with the virtually
unbroken practice of the government since the enactment of the statute").
n61 Kamisar, Body Blow, supra note 8, at B7 (describing § 3501 as a "31-year-old statute which has never
been enforced").
n62 Laurence Tribe, Miranda Warning Is the Law of the Land, BOSTON GLOBE, Feb. 15, 1999, A99
(describing § 3501 as a provision "which no President has ever enforced in light of its evident violation of the
Constitution").
n63 Schulhofer, supra note 9, at A22 (stating that "the administrations of seven presidents, from Lyndon
Johnson through Bill Clinton, all treated § 3501 as an unenforceable dead letter").
n64 See, e.g., Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J., concurring) (asserting § 3501
"has been studiously avoided by every Administration . . . since its enactment more than 25 years ago"); JAMES
B. HADDAD ET AL., CRIMINAL PROCEDURE: CASES AND COMMENTS 2 (5th ed. Supp. 1999) ("Since

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85 Iowa L. Rev. 175, *259

the passage of § 3501 no federal prosecutor has argued that the courts should rely upon it and refuse to apply
Miranda rules to exclude confessions."); Lyle Denniston, The Right to Remain Silent? Law Professor, Justice of
Supreme Court Aim to Replace Miranda, BALTIMORE SUN, Feb. 28, 1999, at C1 (noting that the perception
that the statute has never been enforced is "widely held"); Mischief, supra note 10, at A22 (asserting that "every
Republican and Democratic Attorney General going back to John Mitchell has declined to enforce that law
because of its dubious constitutionality").
n65 Denniston, supra note 64, at C5.
n66 A somewhat dated treatment is found in OLP REPORT, supra note 58, at 64-74. For an excellent
discussion focusing primarily on the legislature background to § 3501 and initial implementation by the
Department of Justice, see Michael O'Neill, Undoing Miranda (Dec. 3, 1999) (unpublished manuscript) (on file
with author).
n67 Pub. L. No. 90-351, 82 Stat. 197 (codified in various sections of titles 5, 18, 28, 42 and 47 U.S.C.).
n68 4 WEEKLY COMP. PRES. DOC. 983 (June 24, 1968).
n69 See OLP REPORT, supra note 58, at 72 (stating that the "administration knew as well as everyone else
what § 3501 was meant to do").
n70 See Controlling Crime Hearings, supra note 50, at 72 (noting the conflict between legislation and the
Miranda decision in letter of Attorney General Ramsey Clark; bill would be constitutional if Miranda's
requirements were "read into" or added as a "constitutional gloss," but if this were done, it would be
superfluous); see also S. REP. NO. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2210 (discussing §
3501's "repeal of Miranda").
n71 See Fred P. Graham, Federal Lawyers Seeking to Soften Confession Curb, N.Y. TIMES, July 28, 1969,
at 22 (stating that Attorney General Ramsey Clark instructed federal attorneys to ignore § 3501 and to offer only
evidence complying with Miranda).
n72 114 CONG. REC. 12,936, 12,937 (1968) (detailing Mr. Mundt's reading into the record of RICHARD
M. NIXON, TOWARD FREEDOM FROM FEAR (1968)); see LIVA BAKER, MIRANDA: CRIME, LAW
AND POLITICS 248 (1983) (citing Nixon campaign speeches attacking Miranda).
n73 Memorandum from Will Wilson, Assistant Attorney General, Criminal Division, to United States
Attorneys (June 11, 1969), reprinted in 115 CONG. REC. 23,236 & 23,237 (1969).
n74 The Improvement and Reform of Law Enforcement and Criminal Justice in the United States: Hearings
Before the House Select Comm. on Crime, 91st Cong. 250 (1969) (statement of Attorney General John N.
Mitchell).
n75 See, e.g., United States v. Vigo, 487 F.2d 295, 299 (2d Cir. 1973); United States v. Marrero, 450 F.2d

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85 Iowa L. Rev. 175, *259

373, 379 (2d Cir. 1971) (Friendly, C.J., concurring); Ailsworth v. United States, 448 F.2d 439, 441 (9th Cir.
1971); United States v. Lamia, 429 F.2d 373, 377 (2d Cir. 1970). See generally OLP REPORT, supra note 58, at
73; Daniel Gandara, Admissibility of Confessions in Federal Prosecutions: Implementation of Section 3501 by
Law Enforcement Officials and the Courts, 63 GEO. L.J. 305 (1974).
n76 510 F.2d 1129 (10th Cir. 1975).
n77 Id. at 1136.
n78 417 U.S. 433 (1974).
n79 Crocker, 510 F.2d at 1137.
n80 Id. (quoting Tucker, 417 U.S. at 449).
n81 Id. at 1138. The Court also held, in a single sentence, that Crocker's confession was obtained in
compliance with Miranda.
n82 See Letter from Department of Justice to Daniel Gandara (May 15, 1974), in Gandara, supra note 75, at
312 n.66 (stating that the policies set forth in the 1969 memorandum "are still considered current and
applicable").
n83 See OLP REPORT, supra note 58, at 73-74. During this time period, Congress exhibited considerable
interest in § 3501. During the 93rd to the 97th Congresses, the Senate considered revisions of the federal
criminal code that, with only minor changes in wording, would have re-enacted 18 U.S.C. § 3501. See S. 1, 93d
Cong., 3-11A4 (1973); S. 1400, 93d Cong. § 102 (1973); S. 1, 94th Cong., § 3713-4 (1975); S. 1437, 95th Cong.
§ 3713 (1977); S. 3089 96th Cong. § 3713 (1980); S. 1630, 97th Cong., § 3713 (1981). In 1977, the criminal
code revision with the recodification of § 3501 passed the Senate but died in the House for reasons unrelated to
§ 3501. Part of the reason for the Senate to recodify § 3501 was to demonstrate congressional support for the
provision. The Senate Judiciary Committee Report specifically noted the 10th Circuit's favorable decision in
Crocker, noting that the decision was "endorsed" by the Committee. See S. REP. NO. 95-605, at 1049 n.5
(1977); accord S. REP. No. 96-553, at 1129 n.5 (1980); S. REP. NO. 97-307, at 1218 n.5 (1981).
n84 OLP REPORT, supra note 58, at 103.
n85 See The Department of Justice's Failure to Enforce § 3501: Hearings Before the Subcomm. on
Criminal Justice Oversight of the Senate Judiciary Comm., 106th Cong. 5-7 (1999) (statement of former
Assistant Attorney General Stephen Markman) [hereinafter 1999 Senate Hearings].
n86 854 F.2d 1097 (8th Cir. 1988).
n87 Brief for the United States at 19 n.11, United States v. Goudreau, 854 F.2d 1097 (8th Cir. 1988) (No.
87-5403N0). The filing of this brief is somewhat at odds with recollections published in then-Solicitor General

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85 Iowa L. Rev. 175, *259

Fried's book that during the Meese tenure nothing was to be done on the "Miranda issue." See CHARLES
FRIED, ORDER AND LAW 46-47 (1991). Fried may have a skewed impression because he remembers a
decision not to move forward on one single case for tactical reasons as a decision not to move forward on any
case. See Letter from former Attorney General Edwin Meese III to Senator Strom Thurmond (May 12, 1999) (on
file with author) (discussing meeting described in Charles Fried's book and noting filing of Goudreau brief after
that meeting).
n88 Goudreau, 854 F.2d at 1097.
n89 Letter from William P. Barr to Senator Strom Thurmond (July 22, 1999) (on file with author).
n90 Id.
n91 Telephone Interview with Stephen Markman, former Assistant Attorney General (May 7, 1999).
n92 21 F.3d 914 (9th Cir. 1994), amended 36 F.3d 1439 (9th Cir. 1994).
n93 United States v. Cheely, 814 F. Supp. 1447, 1448-49 (D. Alaska 1992).
n94 Memorandum to Solicitor General (Mar. 12, 1993) (citing Dep't of Justice document) (on file with
author).
n95 Brief of the United States at 20-22, United States v. Cheely 21 F.3d 914 (9th Cir. 1994) (Nos.
92-30257, 92-30504).
n96 Cheely, 21 F.3d at 923. The brevity of the Ninth Circuit's ruling leaves it unclear as to precisely what
that court meant. Was the Circuit concluding that, as a matter of constitutional law, the statute was
unconstitutional, or that, as a matter of statutory construction, the statute did not cover the situation at hand?
n97 Order, Cheely (9th Cir. May 25, 1999) (Nos. 92-30257, 92-30504).
n98 Memorandum of the United States Relating to the Question Whether to Entertain Rehearing En Banc at
9, Cheely (Nos. 92-30257, 92-30504).
n99 Indeed, just one week after the Department filed its rehearing memorandum, the United States Supreme
Court in Davis noted the importance of the § 3501 issue, with the majority opinion calling it a question of "first
impression" and Justice Scalia's concurring opinion calling the Department's failure to raise the statute
"inexcusable." See infra notes 109-10 and accompanying text.
n100 Within the Ninth Circuit, compare Cheely, 21 F.3d at 923 (stating that § 3501 does not "trump" the
Miranda doctrine), with Cooper v. Dupnik, 963 F.2d 1220, 1256-57 (9th Cir. 1992) (Leavy, J., dissenting)
(recognizing without direct response from the majority, that § 3501 establishes the standards for admissibility of

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85 Iowa L. Rev. 175, *259

confessions in federal cases); United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972) (viewing § 3501 as
seemingly establishing the controlling factors for admissibility of confessions), and Reinke v. United States, 405
F.2d 228, 230 (9th Cir. 1968) (discussing § 3501 before concluding that it was technically inapplicable there).
Outside the Ninth Circuit, compare Cheely, 21 F.3d at 923, with United States v. Crocker, 510 F.2d 1129, 1138
(10th Cir. 1975) (upholding the trial court's use of § 3501 to determine the admissibility of a confession).
n101 969 F.2d 802, 805 (9th Cir. 1992).
n102 512 U.S. 452 (1994)
n103 Davis v. United States, 510 U.S. 942 (1993), cert. granted, 62 U.S.L.W. 3319 (U.S. Nov. 1, 1993)
(No. 92-1949).
n104 See Amicus Curiae Brief for the Washington Legal Foundation, Davis v. United States, 512 U.S. 452
(1994) (No. 92-1949) (arguing that "Congressionally enacted statutes" require a different result). Paul Kamenar
and I represented the Foundation.
n105 See Brief for the United States at 18 n.13, Davis v. United States, 512 U.S. 452 (1994) (No. 92-1949)
("Court-martial cases are not 'criminal prosecutions' within the meaning of the Sixth Amendment . . . .").
n106 If the Solicitor General's view was correct, Congress superceded overly-protective rules for criminal
defendants in civilian cases by passing § 3501, but left these same rules in place in the military justice system.
n107 Official Transcript of Oral Argument at 44, Davis v. United States, 512 U.S. 452 (1994) (No.
92-1949); see also id. at 47 ("Again, we don't take a position in this case [on § 3501].").
n108 Justice O'Connor's opinion here was quoting from United States v. Alvarez-Sanchez, 511 U.S. 350,
351 (1994), a case decided that same year about the "safe harbor" provision allowing up to six hours of police
interrogation contained in 18 U.S.C. § 3501(c). It is interesting that the Department of Justice vigorously
defended this part of § 3501, urging the admission of a confession under § 3501(c) and explaining in its brief to
the Court that § 3501(a) "requires the admission" of voluntary statements. Brief for the United States at passim,
United States v. Alvarez-Sanchez, 511 U.S. 350 (1994) (No. 92-1812). At no point did the Department of Justice
tell the Supreme Court that § 3501(a) was unconstitutional, nor did the Department address any of the various
severability issues that would arise if other parts of the statute were unconstitutional. The Department also urged
the Court to admit a statement pursuant to § 3501 in another case, albeit not over a constitutional objection from
a defendant. See Brief for the United States at passim, United States v. Jacobs, 436 U.S. 31 (1978) (No.
76-1193), cert. dismissed as improvidently granted, 436 U.S. 31 (1978).
n109 Davis v. United States, 512 U.S. 452, 457 n.* (1994). The Court also briefly raised § 3501 in oral
argument in a case the previous Term, United States v. Green, 592 A.2d 985 (D.C. Cir. 1991), cert. granted, 504
U.S. 908 (1992). The Court, however, never published an opinion in the case, because the case became moot
when Green died in prison. See United States v. Green, 507 U.S. 545 (1993), vacating as moot, 592 A.2d 985
(D.C. Cir. 1991).

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n110 Davis, 512 U.S. at 465 (Scalia, J., concurring) (emphasis added).
n111 See Letter from Mark H. Bonner to Cathy Catterson, Clerk, United States Court of Appeals for the
Ninth Circuit (June 29, 1994) (on file with author) (notifying the court of Cheely and explaining its relevance).
n112 See Letter from Drew S. Days III, Solicitor General, to Cathy Catterson, Clerk, United States Court of
Appeals for the Ninth Circuit (June 29, 1994) (on file with author) (referring to "our telephone conversation
today").
n113 See Letter from Drew S. Days III, Solicitor General, to Cathy Catterson, Clerk, United States Court of
Appeals for the Ninth Circuit (June 29, 1994) (on file with author) (citing Davis and noting "the decision in
Davis relates to Point 3" of the government's brief). I am indebted to Solicitor General Days for providing me
with copies of this letter as well as the letter referred to in the preceding footnote.
n114 Order, United States v. Cheely, 21 F.3d 914 (9th Cir. 1994) (No. 92-30257) (directing parties to file
briefs "on the issue of suppression in light of the Supreme Court's decision in Davis v. United States").
n115 Supplemental Memorandum of the United States at 5-12, Cheely (No. 92-30257) (relating to the
question of whether Cheely waived his right to counsel).
n116 See Solicitor General Oversight: Hearing on the Operation and Activities of the Office of the Solicitor
General Before the Senate Comm. on the Judiciary, 104th Cong. 72-80 (1995) (statement of Professor Paul G.
Cassell).
n117 Id. at 31, 33; see also id. at 42 (answering question from Senator Biden that "with respect to § 3501, as
I indicated earlier, there is no department policy against using § 3501 in an appropriate case").
n118 Department of Justice Oversight: Hearing on Focusing on the Administration of Justice and the
Enforcement of Laws Before the Senate Comm. on the Judiciary, 104th Cong. 91 (1995) (noting the written
answer of Attorney General Reno to the question of Senator Hatch).
n119 Id. (citing United States v. Cheely, 21 F.3d 914, 923 (9th Cir. 1994)).
n120 Department of Justice Oversight: Hearings Before the Senate Comm. on the Judiciary, 105th Cong.
89-90 (1997) (including statement of Attorney General Reno).
n121 Confirmation of Deputy Attorney General Nominee Eric Holder: Hearings Before the Senate Comm.
on the Judiciary, 105th Cong. 124 (1997)
n122 138 F.3d 126 (4th Cir. 1998).
n123 See United States v. Sullivan, 948 F. Supp. 549, 551 (E.D. Va. 1996).

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n124 Id. at 558.
n125 Id.
n126 Brief for the United States at 18, United States v. Sullivan, 138 F.3d 126 (4th Cir. 1997) (No.
97-4017).
n127 Letter from Walter Dellinger, Acting Solicitor General, to Patricia S. Connor, Clerk, United States
Court of Appeals for the Fourth Circuit (Mar. 26, 1997) (on file with the Department of Justice); see also
Motion to Substitute Redacted Brief for the United States, Sullivan (No. 97-4017).
n128 Brief for Appellee at 8-23, Sullivan (No. 97-4017).
n129 Order Granting Motion to Substitute Redacted Brief for the United States, Sullivan (No. 97-4017).
n130 Paul Kamenar and I represented WLF and the four senators.
n131 WLF explained that the Supreme Court has described § 3501 as "the statute governing the
admissibility of confessions in federal prosecutions." Davis v. United States, 512 U.S. 452, 457 (1994) (quoting
United States v. Alvarez-Sanchez, 511 U.S. 350, 351 (1994)). WLF further argued at length that the
government's attempted withdrawal of the argument based on § 3501 did not license a court to ignore a
controlling Act of Congress. The Supreme Court has instructed that the parties cannot prevent a court from
deciding a case under the governing law simply by refusing to argue it. In United States National Bank of
Oregon v. Independent Insurance Agents of America, Inc., 508 U.S. 439, 445-48 (1992), the Court concluded it
was free to reach the issue whether Congress had repealed a statute the Comptroller of the Currency had used to
rule against the respondent, even though the respondent had specifically refused to make an argument to that
effect both before the court of appeals and the Supreme Court. The Court held that it would be absurd to allow
the parties' decisions about what arguments to pursue to force the Court to decide the meaning of a statute that
had been repealed. "The contrary conclusion," the Court explained, "would permit litigants, by agreeing on the
legal issue presented, to extract the opinion of a court on hypothetical Acts of Congress or dubious constitutional
principles, an opinion that would be difficult to characterize as anything but advisory." Id. at 447, cited in Davis,
512 U.S. at 464 (Scalia, J., concurring). WLF finally noted that the parties before the court had apparently
literally colluded to remove this argument from the case. The Department of Justice decided to abandon the U.S.
Attorney's office's § 3501 argument as a result of a call from defense counsel to the Solicitor General's Office in
Washington, D.C. See Department of Justice Oversight: Hearings Before the Senate Comm. on the Judiciary,
105th Cong., 1997 WL 210888, at * 296 (remarks of Senator Thompson). This was done in the teeth of a statute
governing not the conduct of private parties outside the courtroom, but rather the conduct of the courts
themselves. See 18 U.S.C. § 3501(a) (providing that "in any [federal] criminal prosecution" a confession "shall
be admissible in evidence") (emphasis added); see also Davis, 512 U.S. at 465 (Scalia, J., concurring) (stating §
3501 "is a provision of law directed to the courts") (emphasis in original).
In the interest of brevity, this Article will not discuss the binding quality of § 3501 any further. Both the
Fourth Circuit and a recent scholarly review of the issues have agreed that § 3501 is binding on the courts even
without the parties raising it. See United States v. Dickerson, 166 F.3d 667, 681-83 (4th Cir. 1999) (stating that
even parties' refusal to raise relevant law does not prevent the court from deciding cases based on that law); Eric
D. Miller, Comment, Should Courts Consider 18 U.S.C. § 3501 Sua Sponte?, 65 U. CHI. L. REV. 1029, 1029

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(1998) (answering question in the affirmative); see also George Thomas III, 2001: The End of the Road for
Miranda v. Arizona? On the History and Future of Rules for Police Interrogation, 36 AM. CRIM. L. REV.
(forthcoming 1999) (agreeing that the Supreme Court should review the issue).
n132 VIRGINIA CODE OF PROFESSIONAL RESPONSIBILITY EC 7-20 (1999).
n133 Id.
n134 Cf. Virginia Dep't of Educ. v. Riley, 106 F.3d 559, 565 (4th Cir. 1997) (en banc) (criticizing the
Justice Department for, "on virtually every occasion when it recited [the relevant statute's] requirement[s],"
intentionally omitting three manifestly relevant words the statute contained, which the Department apparently
did not like).
n135 Order, United States v. Sullivan, 138 F.3d 126 (4th Cir. 1998) (No. 97-4017).
n136 United States v. Sullivan, 138 F.3d 126, 134 n. * (4th Cir. 1998).
n137 No. 96-4876, 1997 WL 351214 (4th Cir. June 16, 1997)
n138 Leong, 1997 WL 351214, at * 1.
n139 Id. at * 4.
n140 Motion of the Washington Legal Foundation and Safe Streets Coalition to File as Amici Curiae a
Suggestion of Appropriateness of Sua Sponte Rehearing and Rehearing En Banc, United States v. Leong, 116
F.3d 1474, 1997 WL 351214 (4th Cir. 1997) (No. 96-4876). Paul Kamenar and I represented WLF.
n141 Id. at 2.
n142 Brief of Amici Curiae WLF and Safe Streets Coalition Suggesting the Appropriateness of a Sua
Sponte Rehearing and Rehearing En Banc at 8, Leong (No. 96-4876).
n143 See Supplemental Brief for the United States at 23, Leong (No. 96-4876) (discussing the court's order).
n144 The Fourth Circuit simply ignored this action, consistent with established precedent. See United States
v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996) (noting that developments in district court do not deprive courts of
appeals of jurisdiction).
n145 Order at 1, Leong (No. 96-4876).
n146 Letter from Senators Orrin Hatch, Strom Thurmond, Fred Thompson, Jon Kyl, John Ashcroft, and Jeff

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Sessions to Attorney General Janet Reno 3, 5 (Aug. 28, 1997) (on file with author).
n147 See supra notes 116-21 and accompanying text.
n148 See supra notes 111-15 and accompanying text.
n149 Letter from Senators Orrin Hatch et al., supra note 146, at 4-5 (quoting testimony of Solicitor General
Drew Days).
n150 Supplemental Brief for the United States at 23, Leong (No. 96-4876).
n151 Id. at 18.
n152 Id. at 21.
n153 Id. at 7.
n154 See Letter from Attorney General Janet Reno to Hon. Albert Gore, Jr., President of the Senate 1 (Sept.
10, 1997) (on file with author); cf. 2 U.S.C. § 288 (1994) (requiring notice to Senate of Department's decision
not to defend constitutionality of an Act of Congress).
n155 Brief of Amici Curiae Washington Legal Foundation and Safe Streets Coalition in Response to
Supplemental Briefs of the Parties and Amicus Nat'l Ass'n of Criminal Defense Lawyers at 5-7, Leong (No.
96-4876).
n156 Order at 3, Leong (No. 96-4876).
n157 Id. at 4.
n158 Id. at 4-6.
n159 Memorandum for all United States Attorneys and all Criminal Division Section Chiefs from John C.
Keeney, Acting Asst. Atty. Gen., Crim. Div. 2 (Nov. 6, 1997) (on file with author).
n160 See infra notes 184-208 and accompanying text.
n161 See, e.g., United States v. Glover, 104 F.3d 1570, 1583 (10th Cir. 1997); United States v. March, 999
F.2d 456, 462 (10th Cir. 1993); United States v. Miller, 987 F.2d 1462, 1464 (10th Cir. 1993); United States v.
Caro, 965 F.2d 1548, 1552 (10th Cir. 1992); United States v. Short, 947 F.2d 1445, 1450 (10th Cir. 1991);
United States v. Fountain, 776 F.2d 878, 886 (10th Cir. 1985); United States v. Benally, 756 F.2d 773, 775-76
(10th Cir. 1985); United States v. Hart, 729 F.2d 662, 666-67 (10th Cir. 1984); United States v. Fritz, 580 F.2d

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85 Iowa L. Rev. 175, *259

370, 378 (10th Cir. 1978); United States v. Shoemaker, 542 F.2d 561, 563 (10th Cir. 1976); United States v.
Brown, 540 F.2d 1048, 1053 (10th Cir. 1976); see also United States v. DiGiacomo, 579 F.2d 1211, 1217-18
(10th Cir. 1978) (Barrett, J., dissenting).
n162 See Government Response to Motion to Suppress at 12, United States v. Cale (D. Utah July 14, 1997)
(No. 1:97-CR-9B) (unpublished decision) (citing § 3501 and noting that Crocker "is the law in this circuit").
n163 United States v. Nafkha, No. 96-4130, 1998 WL 45492 (10th Cir. Feb. 5, 1998).
n164 Paul Kamenar and I represented the WLF.
n165 Memorandum of the Washington Legal Foundation in Support of the United States on Issues Raised
by the Defendants' Motions to Suppress Statements at 19-20, United States v. Nafkha, (No. 95-CR-220C) (D.
Utah Feb. 7, 1996); Government's Response to Motion to Suppress Statement-Nafkha at 9, Nafkha (No.
95-CR-220C) (D. Utah Feb. 7, 1996)
n166 Report and Recommendation at 22, Nafkha (No. 95-CR-220C) (D. Utah Apr. 5, 1996)
n167 Brief of Appellee United States at 17, Nafkha (No. 96-4130) (10th Cir. Apr. 23, 1997).
n168 See Brief of Washington Legal Foundation et al., Nafkha (No. 96-4130) (10th Cir. Apr. 28, 1997).
n169 Letter from Lisa Simotas, Attorney, U.S. Dep't of Justice, to Patrick Fisher, Clerk, United States Court
of Appeals for the Tenth Circuit (Sept. 2, 1997) (on file with author).
n170 See supra note 76 and accompanying text.
n171 See supra note 161.
n172 Supplemental Brief for the United States at 17 n.6, United States v. Leong, 116 F.3d 1474, 1997 WL
351214 (4th Cir. 1997) (No. 96-4876).
n173 United States v. Nafkha, No. 96-4130, 1998 WL 45492, at * 1 n.1 (10th Cir. Feb. 5, 1998).
n174 988 F. Supp. 1424 (D. Utah 1997).
n175 Motion of Safe Streets Coalition et al. on the Applicability of 18 U.S.C. § 3501 to Defendant's Motion
to Suppress Statements at 3, United States v. Rivas-Lopez, 988 F. Supp. 1424 (D. Utah 1997) (No.
97-CR-104G). I represented the Safe Streets Coalition.
n176 Government Supplemental Response to Defendant's Motion to Suppress at 14, Rivas-Lopez (No.

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85 Iowa L. Rev. 175, *259

97-CR-104G) (D. Utah Sept. 5, 1997).
n177 Reply Memorandum of Amici Curiae Safe Streets Coalition et al. Replying to the Position of the Dep't
of Justice and the Defendant on the Applicability and Constitutionality of § 3501, Rivas-Lopez (No.
97-CR-104G) (D. Utah Sept. 12, 1997).
n178 Rivas-Lopez, 988 F. Supp. at 1430.
n179 Id.
n180 Id. at 1431-34.
n181 Id. at 1435.
n182 Id.
n183 Recently the District of Utah reaffirmed that § 3501 superseded Miranda. See United States v.
Tapia-Mendoza, 41 F. Supp.2d 1250 (D. Utah 1999).
n184 See supra note 159 (noting memorandum from Criminal Division forbidding reliance on § 3501.
n185 See Memorandum Opinion at 18-19, United States v. Dickerson (E.D. Va. July 1, 1997) (No.
97-159-A) (unpublished decision).
n186 Government Motion for Reconsideration at 12-14, United States v. Dickerson, 166 F.3d 667 (4th Cir.
1999) (No. 97-159-A).
n187 United States v. Dickerson, 971 F. Supp. 1023 (E.D. Va. 1997), rev'd, 166 F.3d 667 (4th Cir. 1999).
n188 See Brief for United States at 22-23, Dickerson (No. 97-4750) (4th Cir. Dec. 15, 1997).
n189 See id. at 34 n.19.
n190 Brief for Washington Legal Foundation in Support of Appellant United States at 12-13, Dickerson
(No. 97-4750) (4th Cir. Nov. 5, 1997). Paul Kamenar and I represented WLF.
n191 United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999), petition for cert. pending.
n192 Id. at 672.

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85 Iowa L. Rev. 175, *259

n193 Id. at 681 n.14.
n194 Id. at 672 (citing United States Nat'l Bank of Oregon v. Independent Ins. Agents of America, Inc., 508
U.S. 439, 445-48 (1993)).
n195 Id. at 682 (citing VIRGINIA CODE PROFESSIONAL RESPONSIBILITY EC 7-20 (1999)).
n196 Memorandum for all U.S. Attorneys in the Fourth Circuit from James K. Robinson, Assistant Attorney
General (Mar. 8, 1999) (on file with author).
n197 Judge Michael also argued the court should not decide the § 3501 issue because there was no briefing
in opposition to WLF's position. Dickerson, 166 F.3d at 697 (Michael, J., dissenting). However, the Justice
Department's brief cross-referenced its earlier extensive briefing on the alleged unconstitutionality of § 3501 in
the Leong case. See Brief for the United States at 34 n.19, United States v. Dickerson, 166 F.3d 667 (4th Cir.
1999) (No. 97-4750). The defendant, perhaps deeming it a clever tactical maneuver, simply declined to write
anything about the statute.
n198 Petition for Rehearing and Petition for Rehearing En Banc, Dickerson (No. 97-4750) (4th Cir. Feb. 22,
1999).
n199 Brief for the American Civ. Liberties Union in Support of Rehearing, Dickerson (No. 97-4750) (4th
Cir. Feb. 20, 1999); Brief Amicus Curiae for the Nat'l Ass'n of Criminal Defense Lawyers in Support of
Defendant-Appellee's Petition for Rehearing, Dickerson (No. 97-4750) (4th Cir. Feb. 22, 1999).
n200 Letter from Senator Orrin Hatch and Members of the Senate Judiciary Comm. to Attorney General
Reno 1-2 (Mar. 4, 1999) (available at <http://www.law.utah.edu/faculty/bios/cassell>).
n201 Id.
n202 Brief for the United States in Support of Partial Rehearing En Banc, Dickerson (No. 97-4750) (4th Cir.
Mar. 8, 1999).
n203 Id. at 6.
n204 Brief for the Washington Legal Foundation as Amicus Curiae in Opposition to Petition for Rehearing
at 3-4, Dickerson (No. 97-4750) (4th Cir. Mar. 19, 1999).
n205 See Petition for Writ of Certiorari, Dickerson v. United States (U.S. July 30, 1999) (No. 99-5525).
n206 Brief for United States, Dickerson v. United States (U.S. Nov. 1, 1999) (No. 97-5525).

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85 Iowa L. Rev. 175, *259

n207 Brief of Amicus Curiae WLF, Dickerson v. United States (U.S. Nov. 1, 1999) (No. 99-5525) (visited
Nov. 17, 1999) <http: www.law.utah.edu/faculty/bios cassell>.
n208 Dickerson v. United States, 166 F.3d 667 (4th Cir. 1999), cert. granted, 1999 WL 593195 (U.S. Dec.
6, 1999)) (No. 99-5525).
n209 U.S. CONST. art. II, § 3.
n210 Kendall v. United States, 37 U.S. 524, 613 (1838).
n211 See, e.g., RAOUL BERGER, EXECUTIVE PRIVILEGE: A CONSTITUTIONAL MYTH 306 (1974)
("It is a startling notion . . . [that a President] may refuse to execute a law on the ground that it is
unconstitutional. To wring from a duty faithfully to execute the laws a power to defy them would appear to be a
feat of splendid illogic."); EDWARD CORWIN, THE PRESIDENT: OFFICE AND POWERS 79 (3d ed. 1948)
("Once a statute has been duly enacted, whether over his protest or with his approval, [the President] must
promote its enforcement . . . ."); 3 WESTEL WOODBURY WILLOUGHBY, THE CONSTITUTIONAL LAW
OF THE UNITED STATES 1503 (2d ed. 1929) ("If, upon his own judgment, [the President] refuses to execute
a law and thus nullifies it, he is arrogating to himself controlling legislative functions, and laws have but an
advisory, recommendatory character, depending for power upon the good-will of the President.");
Constitutionality of GAO's Bid Protest Function: Hearings Before a Subcomm. of the House Comm. on Gov't
Operations, 99th Cong. 46 (1985) (statement of Professor Eugene Gressman) ("In our constitutional system of
government, such a refusal by the Executive to 'take care that the Laws be faithfully executed' cannot and must
not be tolerated.").
n212 The Solicitor General, for example, (quite properly) had no problem defending the Religious Freedom
Restoration Act, which was in many ways a direct challenge to a recent Supreme Court constitutional holding
concerning the scope of the Free Exercise Clause in Employment Division v. Smith, 494 U.S. 872 (1990). See
Brief for the United States, City of Boerne v. Flores, 521 U.S. 507 (1997).
n213 5 Op. Off. Legal Counsel 25, 25-26 (Apr. 6, 1981) (emphasis added).
n214 See Memorandum for the Counsel to the President Abner Mikva from Asst. Attorney General Walter
Dellinger (Nov. 2, 1994) (available at <http://www.usdoj.gov/olc/mem_ops.htm>) ("The President may base his
decision to comply . . . [with a questioned statute] in part on a desire to afford the Supreme Court an opportunity
to review the constitutional judgment of the legislative branch.").
n215 For example, Senator Hatch asked Solicitor General nominee Seth Waxman during confirmation
hearings whether he would adhere to the view that the Department "is bound to defend the constitutionality of all
acts of Congress unless no reasonable arguments can be made in support . . . ." Mr. Waxman replied: "I
absolutely will." Nomination of Seth Waxman to be Solicitor General: Hearing Before the Senate Comm. on the
Judiciary, 105th Cong. 8 (1997) [hereinafter Hearings on the Nomination of Seth Waxman] (including testimony
of Seth Waxman, nominee to be Solicitor General of the United States); see also id. at 6-7 (stating that Solicitor
General should defend a law "except in the rarest instances").

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n216 But see infra notes 319-30 (explaining why statute should be read as extending beyond the
pre-Miranda voluntariness rules).
n217 See generally GRANO, supra note 37, at 87-118.
n218 The most recent comprehensive attempt to understand the meaning of the Fifth Amendment in light of
its history and structure concludes that a variety of schemes might be used to regulate police interrogation, and
even describes a system that somewhat resembles § 3501. See Akhil Reed Amar & Renee B. Lettow, Fifth
Amendment First Principles: The Self-Incrimination Clause, 93 MICH. L. REV. 857, 909 (1995) (describing
system in which suspect given warnings but also encouraged to speak); cf. Yale Kamisar, On the "Fruits" of
Miranda Violations, Coerced Confessions, and Compelled Testimony, 93 MICH. L. REV. 929, 970 (1995)
(responding vigorously to the Amar/Lettow analysis, but conceding that "according to a majority of the present
Court, [failure to follow Miranda] does not seem to violate a constitutional right at all"); Michael Stokes
Paulsen, Dirty Harry and the Real Constitution, 64 U. CHI. L. REV. 1457, 1477-85 (1997) (reviewing Amar's
analysis, as published in THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES
(1997), and concluding that Amar's premises are even more damaging to Miranda than Amar realizes).
n219 A prime example is the recently filed Justice Department brief in Dickerson. It contains not even a
single textual or historical argument to support its attack on § 3501. See Brief for the United States, Dickerson v.
United States (U.S. Nov. 1, 1999) (No. 99-5525).
n220 See Blodgett v. Haden, 275 U.S. 142, 148 (1927), quoted in Fullilove v. Klutznick, 448 U.S. 448, 472
(1980).
n221 See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (holding that judicial review is the
responsibility of the courts).
n222 United States v. Alvarez-Sanchez, 511 U.S. 350, 351 (1994).
n223 Palermo v. United States, 360 U.S. 343, 353 n.11 (1959).
n224 Id. See generally GRANO, supra note 37, at 173-222 (developing the argument as a basis for
upholding § 3501).
n225 United States v. Dickerson, 166 F.3d 667, 687-88 (4th Cir. 1999).
n226 Davis v. United States, 512 U.S. 452, 457-58 (1994) (internal quotation omitted).
n227 Michigan v. Tucker, 417 U.S. 433, 444 (1974).
n228 Many commentators have concluded that § 3501 is constitutional on similar reasoning. See, e.g.,
Bruce Fein, Congressional and Executive Challenge of Miranda v. Arizona, A Strategy for Correcting Error or
Excesses in the Supreme Court, in CRIME AND PUNISHMENT IN MODERN AMERICA 171, 175-80

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85 Iowa L. Rev. 175, *259

(Patrick B. McGuigan & Jon S. Pascale eds., 1986); GRANO, supra note 37, at 203; Gerald M. Caplan,
Questioning Miranda, 38 VAND. L. REV. 1417, 1475 & n.271 (1985); Phillip Johnson, A Statutory
Replacement for the Miranda Doctrine, 24 AM. CRIM. L. REV. 303, 307 n.8 (1987); Stephen J. Markman, The
Fifth Amendment and Custodial Questioning: A Response to "Reconsidering Miranda," 54 U. CHI. L. REV. 938,
948 (1987). But see WAYNE R. LaFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE § 6.5(e), at
316-17 (2d ed. 1992 & 1998 Supp.) (criticizing § 3501 as unconstitutional "to the extent that it purports to repeal
Miranda); infra notes 245-312 and accompanying text (discussing § 3501's constitutional critics).
n229 512 U.S. at 457-58 (emphasis added).
n230 507 U.S. 680, 690-91 (1993) (emphasis added).
n231 492 U.S. 195, 203 (1989) (emphasis added) (internal quotation omitted).
n232 470 U.S. 298, 306 (1985); accord Connecticut v. Barrett, 479 U.S. 523, 528 (1987) (noting that "the
Miranda Court adopted prophylactic rules designed to insulate the exercise of Fifth Amendment rights"); Moran
v. Burbine, 475 U.S. 412, 424 (1986) ("As is now well established, the . . . Miranda warnings are not themselves
rights protected by the Constitution but [are] instead measure to insure that the [suspect's] right against
compulsory self-incrimination [is] protected.") (internal quotation omitted); Michigan v. Tucker, 417 U.S. 433,
444 (1974) (stating that Miranda warnings are "not themselves rights protected by the Constitution"); see also
Edwards v. Arizona, 451 U.S. 477, 492 (1981) (Powell, J., concurring) (noting that the Court in Miranda
"imposed a general prophylactic rule that is not manifestly required by anything in the text of the Constitution")
(quoting Miranda v. Arizona, 384 U.S. 436, 526 (1966) (White, J., dissenting)).
n233 467 U.S. 649 (1984).
n234 Quarles, 467 U.S. at 655.
n235 401 U.S. 222 (1971).
n236 420 U.S. 714 (1975).
n237 Harris, 401 U.S. at 222; Hass, 420 U.S. at 722.
n238 Quarles, 467 U.S. at 654-58 (discussing Harris and Elstad).
n239 U.S. CONST. amend. V.
n240 New Jersey v. Portash, 440 U.S. 450, 458-59 (1979); Mincey v. Arizona, 437 U.S. 385, 397-98
(1978).
n241 Mahan v. Plymouth County House of Corrections, 64 F.3d 14, 17 (1st Cir. 1995); Deshawn v. Safir,

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156 F.3d 340, 346 (2d Cir. 1998); Clay v. Brown, 151 F.3d 1032 (7th Cir. 1998) (unpublished table decision);
United States v. Abrego, 141 F.3d 142, 168-70 (5th Cir. 1998), cert. denied, 119 S. Ct. 182 (1998); Winsett v.
Washington, 130 F.3d 269, 274 (7th Cir. 1997); Giuffre v. Bissell, 31 F.3d 1241, 1256 (3d Cir. 1994); United
States v. Elie, 111 F.3d 1135, 1142 (4th Cir. 1997); United States v. Davis, 919 F.2d 1181, 1186 (6th Cir. 1990),
reh'g en banc denied, 1991 U.S. App. Lexis 3934; Warren v. City of Lincoln, 864 F.2d 1436, 1441-42 (8th Cir.
1989), cert. denied, 490 U.S. 1091 (1989); United States v. Lemon, 550 F.2d 467, 472-73 (9th Cir. 1977);
Lucero v. Gunter, 17 F.3d 1347, 1350-51 (10th Cir. 1994); Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir.
1976). But cf. California Attorneys for Criminal Justice, v. Butts, Nos. 97-56499, 97-56510, 1999 WL 1005103
(9th Cir. Nov. 8, 1999) (suggesting, but holding, that Miranda rights have some constitutional stature).
n242 See Brief for the United States, 1995 U.S. Briefs LEXIS 2074, City of Boerne v. Flores, 521 U.S. 507
(1997) (No. 95-2074) (citing Miranda as an example of judicially created prophylactic rules that "enforce"
constitutional guarantees but "are not constitutionally compelled"); Transcript of Oral Argument at 47, Davis v.
United States, 512 U.S. 452 (1994) (No. 92-1949) (reporting a question from one of the Justices: "Is Miranda
required by the Fifth Amendment? I thought it wasn't required. Have we said it's required by the Fifth
Amendment?" Response of Assistant to the Solicitor General Seamon, speaking on behalf of the Department of
Justice: "No, this Court has repeatedly made clear that the Miranda rules are prophylactic"); Brief for the United
States as Amicus Curiae Supporting Petitioner, 1991 U.S. Briefs LEXIS 1030, Withrow v. Williams, 507 U.S.
680 (1992) (No. 91-1030) (noting that statements admitted despite Miranda violations should not serve as a
basis for grants of habeas, in part because admission of such statements did not violate the Constitution); see
also Brief for the United States, 1991 U.S. Briefs LEXIS 1521, United States v. Green, 504 U.S. 908 (1992),
vacated by writ of cert. dismissed, 507 U.S. 545 (1993) (No. 91-1521) (discussing Miranda's prophylactic
status); Brief for the United States as Amicus Curiae Supporting Petitioner, 1989 U.S. Briefs LEXIS 6332,
Minnick v. Mississippi, 498 U.S. 146 (1990) (No. 89-6332) (same); Brief for the United States as Amicus
Curiae Supporting Petitioner, 1988 U.S. Briefs LEXIS 512, Michigan v. Harvey, 494 U.S. 344 (1990) (No.
88-512) (same); Brief for the United States as Amicus Curiae Supporting Petitioner, Arizona v. Roberson, 486
U.S. 675 (1988) (No. 87-354); Brief for the United States as Amicus Curiae Supporting Petitioner at 20, New
York v. Quarles, 467 U.S. 649 (1984) (No. 82-1213) (same); Nomination of Seth Waxman to be Solicitor
General, supra note 215, at 101 (including Seth Waxman's responses to questions from Senator Hatch) ("It is
my understanding of Miranda, and of the Supreme Court's further jurisprudence in this field, that the Miranda
warnings themselves were not ever regarded as direct requirements compelled by the Constitution.").
n243 See New York v. Quarles, 467 U.S. 649, 654-55 & n.5, 658 n.7 (1984) (holding that a failure to
provide Miranda rights does not, without more, make a confession involuntary); Oregon v. Elstad, 470 U.S. 298,
306-09 (1985) (same); Michigan v. Tucker, 417 U.S. 433, 444-45 (1974) (holding that a confession is
sufficiently voluntary despite inadvertent disregard of procedural rules established in Miranda).
n244 See Davis v. United States, 512 U.S. 452, 458 (1994) (stating that Miranda rights are "not themselves
rights protected by the Constitution, but [are] instead measures to insure that the right against compulsory
self-incrimination [is] protected"); Quarles, 467 U.S. at 654-55 & n.5, 658 n.7 (stating that "absent actual
coercion by the officer, there is no constitutional imperative requiring the exclusion of the evidence that results
from police inquiry of this kind").
n245 Kamisar, Confessions, supra note 7, at 467.
n246 Thomas, supra note 131.

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n247 Kamisar, Confessions, supra note 7, at 471 (quoting David A. Strauss, The Ubiquity of Prophylactic
Rules, 55 U. CHI. L. REV. 190, 190 (1988)).
n248 Thomas, supra note 130.
n249 Brief for the United States in Support of Partial Rehearing En Banc at 6, United States v. Dickerson,
166 F.3d 667 (4th Cir. 1999) (No. 97-4750).
n250 Brief for the United States at 13, Dickerson (U.S. Nov. 1, 1999) (No. 99-5525).
n251 Id. at 14.
n252 Id.
n253 Id.
n254 Id. at 16.
n255 Brief for the United States at 17, Dickerson v. United States (U.S. Nov. 1, 1999) (No. 99-5525).
n256 Id.
n257 Id. at 20.
n258 Id. at 23 (citing Edwards v. Arizona, 451 U.S. 477 (1981); Arizona v. Roberson, 486 U.S. 675 (1988)).
n259 Brief for the United States at 26, Dickerson (No. 99-5525).
n260 Id. at 30-34.
n261 Id. at 36.
n262 512 U.S. 452 (1994), discussed supra notes 103-10 and accompanying text.
n263 Id. at 457 n. * (emphasis added).
n264 Id. at 457-58 n. *.
n265 Id. at 464 (Scalia, J., concurring).

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n266 511 U.S. 350 (1994).
n267 Id. at 351. The case involved a decision by the Ninth Circuit interpreting the provisions of 18 U.S.C. §
3501(c), which provides that a confession "shall not be inadmissible solely because of delay in bringing such
persons before" a judicial officer if the confession was made voluntarily and "within six hours" following the
arrest. The Court concluded that these provisions were not triggered until there was an arrest by a federal officer.
Id. at 358 (emphasis added). The Court therefore did not need to reach the question of the extent to which the
provision superseded the Supreme Court's so-called McNabb-Mallory rule requiring the suppression of
voluntary confessions obtained during delay in presenting a suspect to a magistrate.
n268 See, e.g., Crane v. Kentucky, 476 U.S. 683, 689 (1986); United States v. Raddatz, 447 U.S. 667, 678
(1980); Brown v. Illinois, 422 U.S. 590, 604 (1975); Keeble v. United States, 412 U.S. 205, 207 n.3 (1973).
Indeed, in at least one case, the Court's opinion seems to have gone out of its way to cite § 3501. See Lego v.
Twomey, 404 U.S. 477, 486 n.14 (1972) (quoting § 3501 in its entirety).
n269 See, e.g., Brief for the United States at 13, Dickerson v. United States (U.S. Nov. 1, 1999) (No.
99-5525) ("The Court has retreated from that aspect [the constitutionalization] of its reasoning in Miranda.");
Kamisar, Confessions, supra note 7, at 467-69 (discussing Burger's and Rehnquist's moves to
"deconstitutionalize" Miranda). See generally Leslie A. Lunney, The Erosion of Miranda: Stare Decisis
Consequences, 48 CATH. U. L. REV. 727 (1999) (tracing doctrinal developments since Miranda).
n270 United States v. Dickerson, 166 F.3d 667, 688-89 (4th Cir. 1999) (quoting Miranda).
n271 See Miranda v. Arizona, 384 U.S. 436, 467 (1966).
n272 See supra note 37 and accompanying text.
n273 Miranda, 384 U.S. at 458, 467.
n274 Id. at 457, 479.
n275 Id. at 447.
n276 Id. at 505 (Harlan, J., dissenting).
n277 Id. at 492, 494.
n278 Miranda, 384 U.S. at 499.
n279 United States v. Elie, 111 F.3d 1135, 1144 (4th Cir. 1997) (internal quotation omitted).

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n280 See generally GRANO, supra note 37, at 173-82. The Justice Department, at least until quite recently,
seemed to take this view as well. See Brief for the United States as Amicus Curiae, 1991 U.S. Briefs LEXIS
1030, Withrow v. Williams, 507 U.S. 680 (1992) (No. 91-1030) (arguing against habeas review of Miranda
claims and explaining that "the most important factor" is "that 'the Miranda rule is not, nor did it ever claim to
be, a dictate of the Fifth Amendment itself'") (emphasis added) (quoting Duckworth v. Eagan, 492 U.S. 195, 209
(1989) (O'Connor, J., concurring)).
n281 Brief for the United States at 14, Dickerson v. United States (U.S. Nov. 1, 1999) (No. 99-5525).
n282 See OLP REPORT, supra note 58, at 104 ("The [Supreme] Court could perpetuate Miranda only by
holding that it has supervisory authority over the state courts."); see also Oregon v. Elstad, 470 U.S. 298, 370-71
& n.15 (1985) (Stevens, J., dissenting) (arguing that the "Court's power to require state courts to exclude
probative self-incriminating statements rests entirely" on the power to enforce the Constitution); United States v.
Dickerson, 166 F.3d 667, 691 n.21 (4th Cir. 1999) (noting that Miranda's application to the states is "an
interesting academic question"); GRANO, supra note 37, at 183-98 (questioning the legitimacy of Miranda and
the supervisory power it gives the federal government over state courts).
n283 367 U.S. 643 (1961).
n284 403 U.S. 388 (1971).
n285 See id. at 397; cf. id. at 406-08 (Harlan, J., concurring).
n286 See generally Henry P. Monaghan, Foreword: Constitutional Common Law, 89 HARV. L. REV. 1
(1975).
n287 See Mapp, 367 U.S. at 655.
n288 Although this argument was presented in WLF's pleadings in the Fourth Circuit in Dickerson, the
Justice Department's recent brief in the Supreme Court studiously avoids any discussion of this argument.
n289 Cf. Palermo v. United States, 360 U.S. 343, 353 n.11 (1959) (upholding congressional modification of
court rule).
n290 403 U.S. at 397; id. at 406-08 (Harlan, J., concurring).
n291 462 U.S. 367 (1983).
n292 Id. at 377.
n293 See Lucas, 462 U.S. at 372, 386; Schweiker v. Chilicky, 487 U.S. 412, 425 (1988). See generally,
Harold J. Krent, How to Move Beyond the Exclusionary Rule: Structuring Judicial Response to Legislative

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Reform Efforts, 26 PEPP. L. REV. 855, 862-71 (1999) (discussing legislative replacement of Fourth
Amendment exclusionary rule).
n294 See infra notes 313-55 and accompanying text.
n295 376 U.S. 398 (1964). For good discussions of the doctrine, see Joseph W. Dellapenna, Deciphering the
Act of State Doctrine, 35 VILL. L. REV. 1 (1990); Michael D. Ramsey, Acts of State and Foreign Sovereign
Obligations, 39 HARV. J. INT'L L. 1 (1998).
n296 Sabbatino, 376 U.S. at 423.
n297 Id. at 424-26.
n298 Id. at 426-27.
n299 See Amendment to the Foreign Assistance Act of 1961, Pub. L. 89-171, § 620, 79 Stat. 653 (1965)
(codified at 22 U.S.C. § 2370(e)(2) (1994)).
n300 See generally Dellapenna, supra note 295, at 109-23, 126-31. As one illustration, in the Sabbatino
case itself, the statute referred to in the previous footnote was applied retroactively to essentially supersede the
Court's decision. See Banco Nacional de Cuba v. Farr, 383 F.2d 166 (2d Cir. 1967), cert. denied, 390 U.S. 956
(1968) (holding that the Hickenlooper Amendment, which directs that the act of state doctrine should not apply
to prevent decisions on the merits in cases arising out of foreign expropriations unless the executive branch
intervenes, is constitutional).
n301 Oregon v. Elstad, 470 U.S. 298, 306 n.1 (1985); accord New York v. Quarles, 467 U.S. 649, 655 n.5
(1984).
n302 See supra notes 222-25 (discussing congressional power to supersede non-constitutional rules).
n303 507 U.S. 680 (1993).
n304 28 U.S.C. § 2254(a) (1994).
n305 Brief for the United States at 16, Dickerson v. United States (U.S. Nov. 1, 1999) (No. 99-5525); see
Kamisar, Confessions, supra note 7, at 475-76; Thomas, supra note 130, at 72 & n.115.
n306 See Bush v. Muncy, 659 F.2d 402, 407 (4th Cir. 1981) (finding interstate compact on detainer
procedures to be "a law of the United States within the meaning of section 2254"). See generally Davis v. United
States, 417 U.S. 333, 346 (1974) (recognizing that a "fundamental defect" can be reviewed on habeas). See also
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (noting that the phrase "laws of the several States" in Rules of
Decision Act includes the States' judicial decisional law).

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n307 See LARRY W. YACKLE, POST CONVICTION REMEDIES § 97, at 371 (1981 & Supp. 1996) ("If
court-fashioned rules for the enforcement of constitutional rights are not themselves part and parcel of these
rights, they would seem to be federal 'laws' which, under the statute, may form the basis for habeas relief.").
n308 Withrow, 507 U.S. at 685 n.2.
n309 Id. at 690.
n310 Id.
n311 Id. at 691-94.
n312 Davis v. United States, 512 U.S. 452, 457 (1994) (citing Michigan v. Tucker, 417 U.S. 433, 443-44
(1974)).
n313 Miranda v. Arizona 384 U.S. 436, 467 (1966) (emphasis added).
n314 Id. (emphasis added). This may be the appropriate point to underscore that § 3501 only extends to
federal prosecutions, see 18 U.S.C. § 3501(a) ("In any criminal prosecution brought by the United States . . . ."),
and that a Court decision validating § 3501 would not immediately extend to state prosecutions. Presumably to
gain the benefit of § 3501, the states would then need to adopt their own versions of the statute. One such statute
already exists, in Miranda's home state of Arizona. See ARIZ. REV. STAT. 13-3988 (1998). The
constitutionality of such state statutes may present different issues than § 3501. See infra notes 331-55 and
accompanying text (discussing ways in which § 3501 is supplemented by additional safeguards in the federal
system).
n315 Miranda v. Arizona, 384 U.S. 436, 467 (1966). This fact by itself provides a striking reason to view
Miranda as a non-constitutional decision. Cf. City of Boerne v. Flores, 521 U.S. 507, 536 (1997) ("When the
Court has interpreted the Constitution, it has acted within the province of the Judicial Branch . . . .").
n316 See supra note 35 and accompanying text (noting that Fifth Amendment issues were not raised in
Miranda's brief); cf. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 379 (1994) ("It is to the holdings of our
cases, rather than their dicta, that we must attend."). To this, it might be retorted that Miranda's language about
the acceptability of alternatives was itself dicta. That statement, however, was recapitulated in the Court's
characterization of Miranda as establishing "recommended" procedural safeguards, which obviously envisions
the possibility of alternative approaches. See Davis, 512 U.S. at 457 (citing Michigan v. Tucker for its
observation that "established in Miranda was one of a 'series of recommended procedural safeguards'").
Moreover, allowing alternatives to Miranda is consistent with everything that the Supreme Court said in the 175
years preceding the decision and the more than 30 years since.
n317 Brief for the United States at 12, Dickerson v. United States (U.S. Nov. 1, 1999) (No. 99-5525).
n318 Kamisar, Confessions, supra note 7, at 469.

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n319 I am indebted to my friend, Professor Thomas, for bringing several of these arguments to my attention.
This point, however, has long been recognized. See, e.g., GRAHAM, supra note 53, at 324 ("Parts of [§ 3501]
would have been a progressive expansion of suspects' rights if Congress had passed it prior to Miranda.");
Robert A. Burt, Miranda and Title II: A Morganatic Marriage, 1969 SUP. CT. REV. 81, 129 (stating that § 3501
"does not wholly sweep aside Miranda . . . [and] the legislative enumeration of factors arguably gives them a
special status . . . that did not necessarily obtain" before Miranda).
n320 18 U.S.C. § 3501(b)(2) (1994).
n321 Colorado v. Spring, 479 U.S. 564, 577 (1987).
n322 18 U.S.C. § 3501(b)(3) (1994).
n323 See YALE KAMISAR, Equal Justice in the Gatehouses and Mansions of American Criminal
Procedure, in CRIMINAL JUSTICE IN OUR TIME 19-36 (1965).
n324 18 U.S.C. § 3501(b)(4) (1994).
n325 See, e.g., Crooker v. California, 357 U.S. 433 (1958).
n326 18 U.S.C. § 3501(b) (1994).
n327 Accord Thomas, supra note 131.
n328 See Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568,
575 (1988) ("Every reasonable construction must be resorted to, in order to save a statute from
unconstitutionality.") (quoting Hooper v. California, 155 U.S. 648, 657 (1895)).
n329 18 U.S.C. § 3501(b) (1994) (emphasis added).
n330 Id.
n331 See Gracey v. International Bhd. of Elec. Workers, 868 F.2d 671, 675 (4th Cir. 1989).
n332 See Brief for the United States at 12, Dickerson v. United States (U.S. Nov. 1, 1999) (No. 99-5525)
(examining only § 3501); Thomas, supra note 131 (same).
n333 18 U.S.C. § 242 (1994).
n334 United States v. Otherson, 637 F.2d 1276, 1278-79 (9th Cir. 1980).

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n335 See United States v. Lanier, 520 U.S. 259, 271 (1997) (noting that "beating to obtain a confession
plainly violates § 242") (citing Williams v. United States, 341 U.S. 97, 101 (1951)).
n336 Lanier, 520 U.S. at 270-72.
n337 See 28 C.F.R. § 0.50 (1998) (establishing the Justice Department's Civil Rights Division).
n338 See Bell v. Hood, 327 U.S. 678 (1946).
n339 403 U.S. 388 (1971).
n340 See Wilkins v. May, 872 F.2d 190, 194 (7th Cir. 1989) (finding a Bivens claim under the Due Process
Clause for police misconduct during custodial interrogation); Bradt v. Smith, 634 F.2d 796, 800 (5th Cir. 1981)
(suggesting § 1983 recognizes Fifth Amendment claims); see also Riley v. Dorton, 115 F.3d 1159, 1164-66 (4th
Cir. 1997) (discussing but finding factually unsupported a § 1983 claim for Fifth Amendment violations; Fifth
Amendment claims arise only when coerced confessions are used at trial; considering Due Process challenge to
police conduct during questioning).
n341 See S. REP. NO. 93-588, at 2-4 (1974), reprinted in 1974 U.S.C.C.A.N. 2789, 2791 (accompanying
H.R. 8245, 93rd Cong. (1973), which provided "a remedy against the United States for the intentional torts of its
investigative and law enforcement officers").
n342 28 U.S.C. § 2680(h) (1994).
n343 U.S. DEP'T OF JUSTICE, OFFICE OF LEGAL POLICY, REPORT TO THE ATTORNEY
GENERAL ON THE SEARCH AND SEIZURE EXCLUSIONARY RULE 36 (1986) [hereinafter U.S. DEP'T
OF JUSTICE], reprinted in 22 U. MICH. J.L. REFORM 575, 622 (1989).
n344 See, e.g., Mincey v. Arizona, 437 U.S. 385, 397-98 (1978).
n345 U.S. DEP'T OF JUSTICE, supra note 343.
n346 Oregon v. Elstad, 470 U.S. 298, 306 (1985).
n347 Id. at 306-10.
n348 Bivens v. Six Unknown Named Agents, 403 U.S. 388, 416 (1971) (Burger, C.J., dissenting).
n349 OLP REPORT, supra note 58, at 98 (collecting citations).
n350 Brief for the United States at 34, INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) (No. 83-491).

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n351 INS v. Lopez-Mendoza, 468 U.S. 1032, 1050 (1984).
n352 18 U.S.C. §§ 241, 242 (1994).
n353 28 U.S.C. § 2680(h) (1994).
n354 18 U.S.C. § 3501(a) (1994).
n355 An entirely separate argument for the constitutionality of § 3501 is based on the fact that Congress has
now rejected the factual findings underpinning Miranda. The court in Dickerson alluded to this argument,
explaining that "Congress, utilizing its superior fact-finding ability, concluded that custodial interrogations were
not inherently coercive." United States v. Dickerson, 166 F.3d 667, 692 n.22 (4th Cir. 1999). See generally Burt,
supra note 319, at 81, 118 (noting congressional power findings undergirding § 3501); Monaghan, supra note
286, at 42 n.217 ("Congress may have already concluded that it is too costly to treat violation of Miranda rules
as a per se violation.").
This argument appears to be a strong one, as the Court's view is filtered through the litigated cases that
reach it. The Court remains entirely unaware, for example, of cases never charged because Miranda rules
blocked a confession, which is the great bulk of Miranda's harm. See Paul G. Cassell, Miranda's Social Costs:
An Empirical Reassessment, 90 NW. U. L. REV. 387, 391-94 (1996) ("Analysis of numbers of suppressed
confessions . . . tells us nothing about cases in which police fail to obtain confessions because of the Miranda
rules."). Congress, on the other hand, has the ability to gather facts from a wide range of sources, including law
enforcement officials and others knowledgeable about how police interrogation really operates. Although
Congress is not required to make formal findings of fact, see United States v. Lopez, 514 U.S. 549, 562 (1995)
("Congress normally is not required to make formal findings as to the substantial burdens that an activity has on
interstate commerce."); Perez v. United States, 402 U.S. 146, 156 (1971) ("Congress need [not] make
particularized findings in order to legislate."), Congress actually made such findings in connection with § 3501.
In the months leading up to the passage of § 3501, the Senate Judiciary Committee held hearings about police
interrogation and ultimately concluded that "the Court overreacted to defense claims that police brutality is
widespread." S. REP. NO. 90-1097, at 48 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2134. The Senate thus
specifically rejected the central factual premise underlying Miranda: that custodial interrogation has an
"inherently compelling" character. Compare Miranda v. Arizona, 384 U.S. 436, 457-58 (1966)
("Incommunicado interrogation is at odds with [the principle that] the individual may not be compelled to
incriminate himself."), with S. REP. NO. 90-1097, at 51 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2137-38
("The committee feels . . . that the voluntariness test does not offend the Constitution or deprive a defendant of
any constitutional right."). The argument from superior fact-finding abilities also works in a slightly different
fashion. The Court has expressly invited Congress to "search for increasingly effective ways of protecting the
rights of the individual while promoting efficient enforcement of our criminal laws." Miranda, 384 U.S. at 467.
What constitutes such an "increasingly effective way" is an empirical question about the effects of rules on
real-world police operations. The Senate specifically concluded § 3501 "would be an effective way of protecting
the rights of the individual and would promote efficient enforcement of our criminal laws." S. REP. NO.
90-1097, at 51 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2137. The Court must give that finding deference
because Congress "is far better equipped than the judiciary to amass and evaluate the vast amounts of data
bearing upon legislative questions." Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (internal
quotations omitted). Because § 3501 is constitutional on the arguments developed in the text, there is no need to
fully develop here these alternative grounds for upholding the statute.

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n356 Cf. Thomas, supra note 131 (arguing that the "symbolism of overruling Miranda . . . would be
ominous indeed" because of the message it would send to police).
n357 See 18 U.S.C. § 3501(a) (1994) ("The trial judge shall permit the jury to hear relevant evidence on the
issue of voluntariness . . . .").
n358 See Yale Kamisar, Remembering the "Old World" of Criminal Procedure: A Reply to Professor
Grano, 23 U. MICH. J.L. REFORM 537, 572-75 (1990) (arguing that, even in the early 1960s, the
"voluntariness" test was on its way to becoming a formidable restriction on police interrogation methods).
n359 See Thomas, supra note 131 (raising this possibility).
n360 See Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions -- And
From Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 538-56 (1998).
n361 See Stephen J. Schulhofer, Confessions and the Court, 79 MICH. L. REV. 865, 877 (1981) (noting
that in a number of important situations "the primary criterion of [confession] admissibility under current law is
[still] the 'old' due process voluntariness test").
n362 See Michigan v. Tucker, 417 U.S. 433, 444-46 (1974).
n363 See Oregon v. Elstad, 470 U.S. 298, 306-07 (1985).
n364 See 18 U.S.C. § 3501(b)(3)-(4) (1994).
n365 See 18 U.S.C. § 3501(b).
n366 Cf. Thomas, supra note 131 (conceding that the police would continue to give Miranda warnings if §
3501 were upheld, but arguing that this would diminish over time).
n367 United States v. Dickerson, 166 F.3d 667, 692 (4th Cir. 1999).
n368 Brief for the United States at 35 n.21, United States v. Dickerson (U.S. Nov. 1, 1999) (No. 99-5525).
n369 See, e.g., JOSHUA DRESSLER & GEORGE C. THOMAS III, CRIMINAL PROCEDURE 558-679
(1999) (reviewing the Miranda doctrine); PHILLIP E. JOHNSON, CASES AND MATERIALS ON
CRIMINAL PROCEDURE 463-606 (2d ed. 1994) (same); YALE KAMISAR ET AL., MODERN CRIMINAL
PROCEDURE 468-600 (9th ed. 1999) (same); ARNOLD H. LOEWY & ARTHUR B. LAFRANCE,
CRIMINAL PROCEDURE: ARREST AND INVESTIGATION 489-612 (1996) (same); MARC L. MILLER &
RONALD F. WRIGHT, CRIMINAL PROCEDURES: CASES, STATUTES, AND EXECUTIVE
MATERIALS 570-652 (1998) (same); STEPHEN A. SALTZBURG & DANIEL J. CAPRA, AMERICAN
CRIMINAL PROCEDURE: CASES AND COMMENTARY 527-96 (5th ed. 1996) (same); WELSH S. WHITE

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& JAMES J. TOMKOVICZ, CRIMINAL PROCEDURE: CONSTITUTIONAL CONSTRAINTS ON
INVESTIGATION AND PROOF 479-578 (1990) (same).
n370 See Fred E. Iubau & James P. Monak, Miranda v. Arizona-Is it Worth the Cost? A Sample Survey,
with Commentary, of the Expenditure of Court Time and Effort, 24 CAL. W. L. REV. 185 (1988).
n371 Dickerson, 166 F.3d at 693.
n372 See Confirmation of Deputy Attorney General Nominee Eric Holder: Hearings Before the Senate
Comm. on the Judiciary, 105th Cong. 124 (1997) (including written response of Deputy Attorney General
Designate Holder to question from Senator Strom Thurmond) ("My experience has been that we have not had
significant difficulty in getting the federal district court to admit voluntary confessions under Miranda and its
progeny.").
n373 Brief for the United States at 20, Dickerson v. United States (U.S. Nov. 1, 1999) (No. 99-5525). These
statements appear to represent the views of the top political echelon at the Department, not those of line
prosecutors or federal agents. See Carrie Johnson, DOJ Gets a Miranda Warning: Prosecutors Mount Campaign
Urging Solicitor General to Back Superseding Statute, LEGAL TIMES, Nov. 1, 1999, at 1 (noting efforts by
"some of the nation's top federal prosecutors" to urge the Department to defend § 3501); Mark Johnson & Tom
Campbell, U.S. Seeking to Defend Law on Valid Confessions, RICHMOND TIMES DISPATCH, Oct. 30, 1999,
at A8 (noting that issue of § 3501 has "divided career Justice Department lawyers and some political appointees,
including Attorney General Janet Reno"); Letter from Richard J. Gallo, President, Federal Law Enforcement
Officers Association, to Senator Strom Thurmond (May 28, 1999) (supporting § 3501). Moreover, the
Department is able to make these representations only by drawing a peculiar distinction between Miranda's
"core" procedures and other aspects of the Miranda doctrine. Thus, the Department's brief concedes that "federal
law enforcement agencies have encountered difficulties with some of the extensions of Miranda," notably those
cases forbidding any contact with a suspect once he has invoked his rights in any fashion. See Brief for the
United States at 23, Dickerson (No. 99-5525). The brief seeks to put such cases to one side on grounds that they
do not involve Miranda proper. But § 3501, of course, would cover such situations as well as those involving
Miranda's core procedures.
n374 See supra notes 364-68 and accompanying text (noting that officers would continue to give Miranda
warnings if § 3501 is upheld).
n375 See Dickerson, 166 F.3d at 693.
n376 A review of the record finds nothing from which a good voluntariness claim could be built. See
Memorandum Opinion, United States v. Dickerson (E.D. Va. Aug. 4, 1997) (No. 97-159-A). Indeed, in
reviewing the record, the Fourth Circuit found strong reason to believe that, contrary to the district court's
findings, Dickerson had in fact been given his Miranda warnings. Dickerson, 166 F.3d at 676-80.
n377 Dickerson, 166 F.3d at 672 ("Without [Dickerson's] confession it is possible, if not probable, that he
will be acquitted."). It is also worth noting that Mr. Dickerson's confession was critical to the arrest of Jimmy
Rochester, another bank robber who had been involved in robbing a total of seventeen banks in three different
states, as well as an armored car.

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n378 See United States v. Leong, 116 F.3d 1474, No. 96-4876, 1997 U.S. App. LEXIS 15480, at * 3 (4th
Cir. June 26, 1997) (per curiam) (following officer's discovery of an illegal firearm, passengers in car asked
about ownership; after "a few moments" driver asks friends to admit who owns gun, and, after officer says they
are all going to be placed under arrest until he finds out, Leong admits it is his).
n379 Even the Department of Justice concedes that this problem occurs with some frequency. See Brief for
the United States at 24 n.11, Dickerson v. United States, (U.S. Nov. 1, 1999) (No. 99-5525) (noting problems
arising from officers detaining a suspect who might later be found to be "in custody"); see also Oregon v. Elstad,
470 U.S. 298, 309 (1985) (internal quotation omitted) ("The task of defining 'custody' is a slippery one, and
policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever.").
n380 See, e.g., OLP REPORT, supra note 58, at 122 (collecting "miscarriages of justice resulting from
Miranda and related decisions"); United States v. Tyler, 164 F.3d 150 (3rd Cir. 1998), cert. denied, 119 S. Ct.
1480 (1999) (remanding for further consideration of Miranda issues in witness tampering case involving the
killing of a government witness); United States v. Rodriguez-Cabrera, 35 F. Supp.2d 181 (D.P.R. 1999)
(suppressing incriminating admission on the grounds that the suspect was in custody and should have received
Miranda warnings); United States v. Guzman, 11 F. Supp.2d 292 (S.D.N.Y. 1998) (suppressing statement
suggesting involvement in an attempted murder on the grounds that defendant was in custody and should have
been Mirandized; also finding that statement was not coerced), aff'd, 152 F.3d 921 (2d Cir. 1998); United States
v. Garibay, 143 F.3d 534 (9th Cir. 1998) (reversing conviction for distribution of 138 pounds of marijuana on
grounds defendant did not understand Miranda waiver); United States v. Foreman, 993 F. Supp. 186 (S.D.N.Y.
1998) (suppressing some statements under Miranda on grounds discussion during drive to booking after
defendant asked what was going on constituted "interrogation"); Arizona v. Rodriguez, 921 P.2d 643 (Ariz.
1996) (reversing a death penalty sentence on the grounds that Miranda warnings not given; case awaiting
retrial), discussed in 1999 Senate Hearings, supra note 85 (statement of Richard Romley, Maricopa County
Attorney); United States v. Ramsey, 992 F.2d 301 (11th Cir. 1993) (reversing conviction for distribution of
crack on grounds that turning and looking away from officer was invocation of Miranda right to remain silent);
United States v. Henly, 984 F.2d 1040 (9th Cir. 1993) (reversing conviction for armed robbery; defendant in
custody and should have been Mirandized when sitting in back of police car); State v. Oldham, 618 S.W.2d 647
(Mo. 1981) (reversing defendant's conviction for horribly abusing his two-year-old stepdaughter because
confession admitted; second police officer who obtained Mirandized confession not aware that defendant
declined to make statement to first officer); Commonwealth v. Zook, 553 A.2d 920 (Pa. 1989) (reversing death
sentence on Miranda grounds); Commonwealth v. Bennett, 264 A.2d 706 (Pa. 1970) (overturning defendant's
first degree murder conviction because non-Mirandized confession admitted; defendant acquitted on retrial);
Commonwealth v. Singleton, 266 A.2d 753 (Pa. 1970) (holding that a police warning that any statement could
be used "for or against" defendant deviated from Miranda; defendant's conviction for beating deaths reversed;
defendant acquitted on retrial).
n381 See CRAIG M. BRADLEY, THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION
43-44 (1993).
n382 See Cassell, supra note 355 (discussing the social costs of empirical reassessment). For further
discussion of this estimate, compare Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and
Vanishingly Small Social Costs, 90 NW. U. L. REV. 500 (1996), with Paul G. Cassell, All Benefits, No Costs:
The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996). See also Paul G. Cassell,
Miranda's "Negligible" Effect On Law Enforcement: Some Skeptical Observations, 20 HARV. J.L. & PUB.
POL'Y 327 (1997) (responding further to Schulhofer).

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n383 See Paul G. Cassell & Brett S. Hayman, Police Interrogation in the 1990s: An Empirical Study of the
Effects of Miranda, 43 UCLA L. REV. 839, 869 (1996) (reviewing statistics of incriminating statements and
denials). For an interesting, though ultimately unpersuasive, argument that the Salt Lake County confession rate
is actually higher, see George C. Thomas III, Plain Talk About the Miranda Empirical Debate: A "Steady-State"
Theory of Confessions, 43 UCLA L. REV. 933, 944-53 (1996), which is responded to in Cassell & Hayman,
supra, at 871-76.
n384 See generally Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on
Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998).
n385 See id. at 1107-19 (discussing Miranda as causing the decline in clearance rates).
n386 See 1999 Senate Hearings, supra note 85, at 7-8 (statement of Gilbert G. Gallegos, President of the
Grand Lodge, Fraternal Order of Police)
It is no coincidence that immediately after the imposition of all these technical requirements by
the Supreme Court's decision in Miranda, the criminal case 'clearance rate' of the nation's police
fell sharply. At the time, police officers around the country pointed to the Miranda decision as
one of the major factors in this drop, and time has proven them right.

n387 See Paul G. Cassell, Protecting the Innocent from False Confessions and Lost Confessions-And from
Miranda, 88 J. CRIM. L. & CRIMINOLOGY 497, 538-56 (1998) (developing this argument at length); see also
Paul G. Cassell, The Guilty and the "Innocent": An Examination of Alleged Cases of Wrongful Conviction from
False Confessions, 22 HARV. J.L. & PUB. POL'Y 523, 534 n.44 (1999) (collecting sources advancing similar
arguments); cf. Thomas, supra note 131 (identifying this as "truly a worst-case scenario which, if true, calls for
abolition of Miranda," but not reaching a judgment on whether the scenario is actually occurring today).
n388 See Laurie Magid, The Miranda Debate: Questions Past, Present, and Future, HOUS. L. REV.
(forthcoming 1999) ("Although one may dispute the precise figures reached in Professor Cassell's research, he
does make a persuasive claim that the Miranda procedures exact a substantial cost on law enforcement.")
(reviewing THE MIRANDA DEBATE: LAW, JUSTICE, AND POLICING (Richard A. Leo & George C.
Thomas III eds., 1998)).
n389 Cf. George C. Thomas III, An Assault on the Temple of Miranda, 85 J. CRIM. L. & CRIMINOLOGY
807, 826 (1995) ("If Miranda is not generally effective, why should courts suppress confessions of guilty
suspects just because the police failed to do what would likely not have made any difference?").
n390 Miranda v. Arizona, 384 U.S. 436, 467 (1966). For an interesting discussion of how Justice Brennan
persuaded Chief Justice Warren to add this language into the opinion, see Charles D. Weisselberg, Saving
Miranda, 84 CORNELL L. REV. 109, 122-25 (1998).
n391 Miranda, 384 U.S. at 524 (Harlan, J., dissenting).
n392 Id. at 545 (White, J., dissenting).

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n393 OLP REPORT, supra note 58, at 99.
n394 GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL
CHANGE? 326 (1991).
n395 OLP REPORT, supra note 58, at 98.
n396 Cassell, supra note 355, at 493-96.
n397 See CHARLES MURRAY, LOSING GROUND: AMERICAN SOCIAL POLICY 1950-1980, at 117
(1984) (reviewing crime statistics and concluding, "put simply, it was much more dangerous to be black in 1972
than it was in 1965, whereas it was not much more dangerous to be white").
n398 See FBI Directive on Videotaping of Questioning of Suspects (1998).
n399 See, e.g., JUDGE HAROLD J. ROTHWAX, GUILTY: THE COLLAPSE OF CRIMINAL JUSTICE
237 (1996); Cassell, supra note 355, at 486-92; OLP REPORT, supra note 58, at 105-07.
n400 See WALTER V. SCHAEFER, THE SUSPECT AND SOCIETY: CRIMINAL PROCEDURE AND
CONVERGING CONSTITUTIONAL DOCTRINES (1967); RICHARD UVILLER, THE TILTED PLAYING
FIELD: IS CRIMINAL JUSTICE UNFAIR 200-06 (1999); Amar & Lettow, supra note 218, at 908-09; Henry J.
Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37 U. CIN. L. REV. 671,
721-25 (1968).
n401 See Notebook: Let's Go to the Videotape, NEW REPUBLIC, Mar. 8, 1999, at 12 (applauding
videotaping and concluding "the Fourth Circuit's [Dickerson] ruling could provide the Supreme Court the
perfect opportunity to modernize Miranda . . .").
n402 Perhaps the Court could provide some suggestions as to what other reforms would survive its scrutiny,
but coming (as they would have to) in the form of dicta, it could not provide much assurance to federal and state
legislators considering other options.
n403 Miranda v. Arizona, 384 U.S. 436, 542-43 (1966) (White, J., dissenting).
n404 Davis v. United States, 512 U.S. 452, 465 (1994) (Scalia, J., concurring).
n405 Id.