Vega v. Tekoh and the Supreme Court’s Conceptual Confusion

Posted in: Criminal Procedure

A few weeks ago, the U.S. Supreme Court heard argument in the case of Vega v. Tekoh. The issue in the case is whether a plaintiff may sue a police officer for an interrogation that violates the rules announced in Miranda v. Arizona and that results in a statement that the prosecution introduces at the plaintiff’s trial, a trial ending in an acquittal. In considering the case, the Justices seemed to believe that a crucial question was as follows: Is adherence to Miranda a constitutional requirement or something more akin to a prophylactic sub-constitutional practice? The Justices in what appears to be a majority appeared less taken with Miranda as part of the Fifth Amendment, and those who will likely comprise the dissent viewed the decision in Dickerson v. United States as conferring constitutional status on the warnings and the associated exclusionary rule. In this column, I shall argue that the answer to the constitutional-versus-prophylactic-rule question should have little bearing on the outcome of the case and that a simple consideration of the structure of the right against compelled self-incrimination tells us whether a lawsuit on the basis of its violation makes sense.

Factual Background

In Tekoh, the respondent, while allegedly in custody, faced questioning in the absence of Miranda warnings. Police, under the famous Miranda decision, must give a suspect in custody the warnings before interrogating him. Decisions that followed Miranda required further that the police respect an invocation of the right to remain silent or the right to counsel and cease any ongoing interrogation. Initially, the decision seemed to embrace the idea that Miranda requirements were constitutionally mandatory. Over time, though, the Court treated violations of Miranda as distinct from violations of the self-incrimination clause of the Fifth Amendment, on which Miranda was based. For instance, if police compelled a self-incriminating statement, the statement would be inadmissible in the prosecution’s affirmative case and inadmissible on cross-examination of the defendant, under New Jersey v. Portash. By contrast, if police took a statement in violation of Miranda, the statement would be inadmissible in the government’s affirmative case but admissible on cross-examination of the defendant, under Harris v. New York. So far as we know, this and other doctrinal distinctions between Miranda violations and Fifth Amendment violations remain in place. Yet the Supreme Court, in Dickerson v. United States, held that Miranda was a “constitutional decision,” conferring a sort of hybrid status on the ruling. We call Miranda “constitutional” and therefore not subject to repeal by Congress, but the violation of it has fewer consequences than unadorned violations of the Fifth Amendment. As described above, different Justices—depending on their ideological druthers—took different positions on what aspect of the Miranda hybrid applies to the Tekoh case.

A More Sensible Way to Think about Tekoh

In my view, the constitutional/nonconstitutional status of Miranda at this time is irrelevant to the resolution of the case before the Court. To explore this alternative point of view, assume for argument’s sake that the Miranda decision is fully constitutional and that the current law treats it no differently from the text of the Fifth Amendment self-incrimination clause and the decisions interpreting the latter. On this assumption, if the police violated Tekoh’s Miranda rights, then it follows that the resulting statements should not have been admitted at all during Tekoh’s trial. Again on the assumption that police violated Miranda (since they might not have, if Tekoh was not in custody), the prosecution violated the Fifth Amendment when it introduced the non-Mirandized statements into evidence. Tekoh now believes that he is entitled to bring a civil rights lawsuit against the police for the questioning and the statement, as compensation for the injury Tekoh suffered when his non-Mirandized statements were introduced into evidence.

Now think about what the Fifth Amendment self-incrimination clause (which we are assuming is doctrinally the same as Miranda) does. It prevents us from being condemned by our own words, forced from our lips. Justice Marshall believed that Miranda was a constitutional decision, and he believed it before the Court’s ruling in Dickerson. In a dissent from the Court’s decision in New York v. Quarles, Justice Marshall said that if police truly need to ask the suspect a question in order to protect the public, it is unnecessary for the Court to recognize a public safety exception to Miranda. Instead, Justice Marshall explained, police could comply with the Fifth Amendment simply by asking the suspect their question (in an admittedly coercive environment) and then not introducing the suspect’s response at his trial: “The irony of the majority’s decision is that the public’s safety can be perfectly well protected without abridging the Fifth Amendment….[N]othing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial.” (emphasis added).

This suggestion from Justice Marshall’s dissent (which took the most liberal position on Miranda warnings) highlighted the fact that the violation does not lie in the non-Mirandized interrogation (or in a coercive question) but in the use of the answer to prove the suspect’s guilt at trial. Along similar lines, the Court held in Kastigar v. United States that granting a person use and derivative use immunity from prosecution enables government officials to lawfully and literally compel (on pain of contempt) self-incriminating statements from a witness. With such statements, then, the action is at the criminal trial. You might imagine that if the action is at trial, then Tekoh suffered a violation because his statements were introduced at trial. But not so fast.

If having a self-incriminating statement come into evidence at any trial were the problem, then compelled statements would be inadmissible at a civil proceeding. But if an attorney were able to grant criminal immunity to a witness, then that attorney could compel the witness’s self-incriminating testimony at a civil trial. So the right is all about what makes criminal prosecution unique—it can end in the incarceration of the defendant. Absent the possibility of incarceration, the Fifth Amendment (and, on our assumption, Miranda) does not apply. Why am I making this point? Because Tekoh was acquitted at the end of his trial by jury. Given his acquittal, his presumptively compelled self-incriminating statements produced no harmful effect. The harmful effect associated with compelled self-incrimination is criminal conviction on the basis of such incrimination. Indeed, the Court held in Arizona v. Fulminante that the admission of a coerced confession into evidence can be harmless error if, in light of all the evidence, it made no difference to the trial. What could more clearly indicate the harmlessness of an error than an acquittal? An acquittal makes it unnecessary to speculate about how the trial would have gone if the forbidden evidence had not come in. Quite plainly, the trial would still have ended in an acquittal.

But What About Other Bad Things Police Do?

Some people have expressed concern that if the Court says Tekoh cannot sue the police for violating Miranda, then perhaps it will be impossible to sue police for other constitutional violations. It is worth noting here that, as per Justice Marshall’s suggestion in Quarles, taking statements in violation of Miranda and the Fifth Amendment is fine so long as they do not go into evidence. Therefore, if anyone is responsible for violating the law, it would be the prosecutor who introduced the statement (and who has absolute immunity against civil liability), not the officer who took the statement. But to the extent that we have a trial right (like the right to counsel, the right to confrontation, etc.), the proper “remedy” for a violation is either suppression of resulting evidence or reversal of a conviction based on that evidence. We do not entertain lawsuits by defendants because un-cross-examinable testimonial hearsay came into evidence. We do not entertain lawsuits by defendants whose jurors were selected in violation of Batson v. Kentucky. We handle Confrontation Clause and Batson violations by reversing convictions and granting new trials, not by allowing defendants to seek money damages from prosecutors (or the police whose investigation helped prepare prosecutors for trial). And presumably, the person convicted after sustaining one of these trial-related violations is most interested in reversing the conviction rather than in collecting money. There is no reason whatsoever to treat Miranda/Fifth Amendment violations any differently, other than the fact that police lack absolute immunity, rendering them vulnerable to potential suits despite their not having violated the law, even on the most generous understanding of Miranda.

Many of the harmful things that police do will remain actionable even after the Court (probably for the wrong reasons) decides Tekoh. When police search without probable cause or a warrant, the suspect can sue the police for civil rights violations. When police use deadly force when it is unreasonable to do so, the family of the victim can sue the police for civil rights violations (and the government can even prosecute the perpetrator under 18 U.S.C. § 242. In other words, when police themselves violate the Constitution, they remain vulnerable to suit. But when prosecutors violate the Constitution by introducing evidence they should not have introduced at trial, the proper remedy is reversal, not a lawsuit against actors who did not even violate the law.

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