Intentional Violations of Miranda: A Strategy by FBI

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Posted by Charles Pixley by way of Mathew Gaylor on August 29, 1997 at 20:04:27:

Intentional Violations of Miranda: A Strategy for Liability By FBI Agent Kimberly A. Crawford, J.D.
Fri, 29 Aug 1997 16:55:49 -0400
From: (Matthew Gaylor)
To: (Matthew Gaylor)

[Note from Matthew Gaylor: This FBI Agent explains in detail the not well
known (Outside of Law enforcement) interrogation strategy of not
Mirandizing a suspect. The theory is that parts or all of the testimony
may NOT be thrown out by a court. Miranda rights as defined by the US
Supreme Court seem to be ignored in this ploy by law enforcement to get
suspects to talk. If you ever end up under the bright lights of an
interrogation lamp- Just keep your month shut and ask for your lawyer. If
the FBI were truly interested in enforcing the laws of the United States,
they might start by investigating to determine by what extent law
enforcement engages in a conspiracy to circumvent the law.

Excerpted FBI Law Enforcement Bulletin August, 1997]

Intentional Violations of Miranda: A Strategy for Liability By Kimberly A.
Crawford, J.D.

Intentional Miranda violations may jeopardize cases and expose
investigators and agencies to civil suits.

Special Agent Crawford is a legal instructor at the FBI Academy.

Over three decades ago, in Miranda v. Arizona,1 the United States Supreme
Court held that custodial interrogations create a psychologically
compelling atmosphere that countermands the Fifth Amendment protection
against compelled self- incrimination.2 Accordingly, the Court developed
the now-familiar Miranda warnings as a means of reducing the compulsion
attendant in custodial interrogations.

In the years that followed, the Court handed down numerous rulings
purported to clarify and refine the Miranda decision.3 The practical result
of these rulings is that there now exists a complex legal maze that
investigators must negotiate when attempting to interrogate custodial
subjects. Occasionally, investigators fail, either accidentally or
intentionally, to negotiate the maze properly.

Accidental failures to negotiate the Miranda maze have resulted in the
suppression of evidence in subsequent criminal cases,4 but generally have
not resulted in any successful civil suits against law enforcement officers
or agencies.5 However, civil suits alleging intentional failures may have
considerably greater potential for success in the courts.6

This article reviews the cases that, by limiting the legal consequences of
Miranda violations, may have encouraged some law enforcement officers to
develop interrogation strategies that incorporate intentional violations of
the Miranda rule. The article also examines the potential civil liability
for following such strategies.

Limitations on the Effects of Miranda Violations

The Supreme Court has recognized that Miranda warnings are not
constitutionally mandated.7 Rather, the warnings are a protective measure
designed to safeguard the Fifth Amendment right against compelled
self-incrimination. Consequently, violations of the Miranda rule do not
carry with them the same force and effect as a constitutional violation.
Statements obtained in violation of Miranda have a variety of lawful uses.

For example, in Michigan v. Tucker,8 the Supreme Court held that a Miranda
violation that resulted in the identification of a witness did not preclude
the government from calling that witness to testify at trial. The witness
in question was named in an alibi provided by the defendant during an
interrogation session that followed an incomplete advice of rights.9 When
contacted by the police, the witness not only failed to corroborate the
defendant's alibi but also provided additional damaging information. The
defendant subsequently sought to have the witness' testimony excluded at
trial on the grounds that the identity of the witness was discovered as a
result of the violation of Miranda. The Supreme Court, however, concluded
that although statements taken without benefit of full Miranda warnings
generally could not be admitted at trial, some acceptable uses of those
statements exist.10 Identification of witnesses is one such acceptable use.

In Oregon v. Elstad,11 the Supreme Court similarly held that a second
statement obtained from a custodial suspect following one taken in
violation of Miranda is not necessarily a fruit of the poisonous tree and
may be used at trial. In Elstad, the defendant made incriminating
statements during an interrogation that was later determined to contravene
Miranda. The defendant repeated those statements and gave a detailed
confession during a later interrogation session conducted in full
compliance with Miranda. The defense subsequently argued that because the
"cat was let out of the bag" during the initial unlawful interrogation, the
statement provided during the later interrogation was tainted by the
original illegality and, therefore, inadmissible. In rejecting this
argument, the Supreme Court found that the goals of Miranda were satisfied
by the suppression of the unwarned statement and that "no further purpose
is served by imputing 'taint' to subsequent statements"12 lawfully

Finally, in Harris v. New York13 and Oregon v. Hass,14 the Supreme Court
concluded that statements taken in violation of Miranda may be used for
impeachment purposes. In both cases, defendants had given statements that
could not be used in the government's case in chief because of technical
violations of Miranda. In order to preclude defendants from falsifying
testimony with impunity, however, the Court held that the tainted
statements could be used to impeach the defendants when they testified
inconsistently at trial.

A Strategy of Intentional Violations

These limitations on the effects of Miranda have encouraged some law
enforcement officers to conclude that they have "little to lose and perhaps
something to gain"15 by disregarding the Miranda rule. When custodial
suspects invoke their Miranda right to counsel, officers know they cannot
lawfully continue to interrogate those suspects until defense attorneys are
present.16 Recognizing that the chances of obtaining incriminating
information from counseled suspects are relatively remote, some law
enforcement officers may choose to ignore invocations of the right to
counsel and continue to interrogate suspects with the intention of gaining
witness information or impeachment material. At the very least, officers
may continue questioning in an effort to "let the cat out of the bag" with
the hope of gaining admissible statements at a later date.

The Potential for Civil Liability

Although interrogation strategies that ignore invocations of Miranda rights
clearly defy the mandates of the Supreme Court, until recently, courts had
not presented any compelling legal reasons to avoid the technique. The
variety of uses for statements taken in violation of Miranda made the
technique advantageous in criminal prosecutions, and there was no precedent
for holding law enforcement offi-cers or departments civilly liable for the
intentional violation of Miranda rights.

In the past, officers sued in federal court pursuant to Title 42 United
States Code (U.S.C.) 1983, or the cause of action created in Bivens v. Six
Unknown Federal Narcotics Agents,17 could easily defend claims of liability
based on alleged violations of Miranda. Both Section 1983 and Bivens
actions require that plaintiffs prove that law enforcement officers
deprived claimants of their federal constitutional or statutory rights.
Because the Supreme Court has characterized the Miranda protections as
prophylactic and not prescribed by either the Constitution or federal
statute, virtually every court of appeals that has confronted the issue has
held that no actionable civil liability claim results from a violation of
those protections.18

The unanimous fashion with which the appellate courts have handled civil
suits against law enforcement officers alleging failures to comply with
Miranda has one notable exception. In Cooper v. Dupnik,19 the United States
Court of Appeals for the Ninth Circuit held that intentional violations of
Miranda may result in law enforcement officers' being held personally
liable for depriving individuals of either their Fifth Amendment protection
against compelled self-incrimination or the constitutional guarantee of due

Liability Under Self-Incrimination Clause

In Cooper, local law enforcement officers in the Tucson, Arizona, area
formed a task force to investigate a series of rapes, robberies, and
kidnappings. Officers suspected that one person was responsible for the
vast majority of the offenses under investigation and dubbed the unknown
suspect the "Prime Time Rapist." Even before a suspect was identified, the
task force formed an interrogation strategy and selected the officer who
would carry it out.

The planned interrogation strategy called for a full advice of rights prior
to interrogation, but in the event of a Miranda invocation, interrogation
would continue until a confession was obtained. Although the framers of the
strategy knew any confession generated by this approach would be
inadmissible in the government's case in chief, they hoped to get
impeachment material that would inhibit the defendant from taking the stand
and claiming his innocence or pursuing an insanity defense.

When Michael Cooper was mistakenly identified as a suspect in the case, he
was arrested, advised of his rights, and, in accordance with the preplanned
strategy, questioned at length, despite numerous invocations of the rights
to silence and counsel. When the interrogation yielded no significant
results and the mistakes leading to his identification as a suspect
surfaced, Cooper was released from custody and never prosecuted.

Cooper subsequently filed a Section 1983 action against several of the law
enforcement officers involved in his arrest and interrogation, alleging
numerous violations of his constitutional rights.20 After a hearing on the
motions for summary judgment filed by the defendants, the district court
dismissed a majority of Cooper's claims. The claims that survived centered
around the in-tentional violation of Cooper's Miranda rights.

On appeal, the defense advanced the time-tested argument that the Miranda
safeguards are not constitutionally mandated and, therefore, cannot support
a claim under Section 1983. The court of appeals initially agreed with this
argument and dismissed Cooper's remaining claims.21 However, after securing
a rehearing by the entire panel of the appellate court, Cooper was
successful in having his Miranda claims reinstated.

The court's reinstatement of Cooper's Miranda claims was based largely on
the intentional nature of the violations and the coerciveness of the
interrogation that followed. The court found that the blatant refusal to
honor Cooper's asserted rights generated a feeling of helplessness in
Cooper that was exacerbated by the hours of "harsh and unrelenting"22
questioning that followed. According to the court, the result of this
psychological gamesmanship was that Cooper was compelled to make statements
to the interrogators.23 Although these statements were never used against
Cooper, the court found that the Fifth Amendment protection against
self-incrimination that underlies Miranda had been in-fringed by the mere
fact that Cooper was coerced into making involuntary statements during the
custodial interrogation.

The court in Cooper made clear that it was not creating a cause of action
for technical violations of Miranda.24 "Where police officers continue to
talk to a suspect after he asserts his rights and where they do so in a
benign way, without coer-cion or tactics that compel him to speak,"25 no
successful Section 1983 action should result. However, the court made it
equally clear that intentional violations of Miranda would be viewed as a
factor in determining whether "coercion or tactics" compelled custodial
subjects to speak.

Under this analysis, an officer might conclude that only those intentional
violations that contribute to the procuring of involuntary statements are
actionable under Section 1983. However, such a reading of the court's
decision in Cooper is misleading since the court also offered an
alternative basis for liability.

Liability Under Due Process Clause

The door that was left open under the Fifth Amendment self-incrimination
analysis in Cooper was thereafter closed when the court considered the due
process implications of intentional violations of Miranda. Although never
raised by Cooper, the court gratuitously addressed the issue of whether the
intentional disregard for the Supreme Court rule in Miranda shocked the
conscience of the court and, thus, constituted a violation of the due
process protection. In Rochin v. California,26 the Supreme Court considered
the lawfulness of a highly intrusive, warrantless search of an individual.
In condemning the action, the Court held that the search "offended those
canons of decency and fairness which express the notions of justice of
English-speaking peoples even toward those charged with the most heinous
offenses"27 and "shocked the conscience of the court."28 Since Rochin, the
measure for determining violations of the Fifth Amendment guarantee of due
process has been whether government action "shocks the conscience of the

Applying this standard of review to the facts in Cooper, the court
concluded that the intentional nature of the Miranda violation contributed
greatly to its finding that the government conduct was shocking to the
conscience. Particularly offensive to the court was the government's stated
purpose of obtaining a statement that would keep Cooper from testifying on
his own behalf or asserting the insanity defense. According to the court,
"It is proper to anticipate defenses and to work vigorously to meet them.
But when the methods chosen to gather such evidence and information are
deliberately unlawful and flout the Constitution, the legitimacy is
lost."29 The court's finding that the intentional violation of Miranda
violated Cooper's right to due process may have a far greater impact on law
enforcement interrogation practices than its holding that the protection
against compelled self-incrimination was infringed. As previously noted,
the court's finding of a self-incrimination infraction resulted from the
intentional violation being combined with coercive interrogation to produce
a compelled statement. Under the court's due process analysis, however,
Section 1983 liability for government conduct deemed shocking to the
conscience could be based solely on a preplanned strategy to violate
Miranda intentionally even though no coercive interrogation took place.


Although Cooper is the only federal court of appeals decision thus far to
hold that intentional violations of Miranda give rise to a civil claim
under Section 1983, law enforcement officers should be aware that the
precedent has been set. This precedent was subsequently followed in
California Attorneys for Criminal Justice v. Butts,30 when the district
court relied on the decision in Cooper to hold that an alleged policy to
disregard invocations of Miranda rights could support a claim under Section

Because the argument that intentional violations of Miranda contravene the
protections of the Constitution has met with success in these cases, it is
likely that plaintiffs will raise the same argument in other courts.
Although other appellate courts may refuse to adopt the rationale advanced
in Cooper, law enforcement officers should weigh carefully the possibility
of civil suit and consult with a departmental legal advisor prior to
implementing any interrogation strategies that call for intentional Miranda

1 384 U.S. 436 (1966).
2 The Fifth Amendment to the U.S. Constitution provides in pertinent part
that "no person...shall be compelled in any criminal case to be a witness
against himself...." 3 See, e.g., Michigan v. Mosley, 423 U.S. 96 (1975)
(interpreting the invocation of the right to silence); Edwards v. Arizona,
451 U.S. 477 (1981) (interpreting the invocation of the right to counsel);
Minnick v. Mississippi, 111 S. Ct. 486 (1990) (further interpreting the
invocation of the right to counsel); Davis v. United States, 114 S. Ct.
2350 (1994) (determining the clarity necessary for an invocation of the
right to counsel). 4 Miranda, 384 U.S. at 479 (evidence obtained in
violation of Miranda is generally inadmissible).
5 See Mahan v. Plymouth County House of Corrections, 64 F.3d 14 (1st. Cir.
1995) "Every court of appeals which has spoken to this matter in similar
circumstances has held that no Section 1983 claim lay." Id. at 17.
6 See Cooper v. Dupnik, 963 F.2d 1229 (9th Cir. 1992) (en banc), and
California Attorneys for Criminal Justice, et al., v. Butts, 922 F. Supp.
327 (C.D. Calif. 1990). 7 Michigan v. Tucker, 417 U.S. 433 (1974). 8 Ibid.
9 The interrogation in Tucker preceded the Court's decision in Miranda. The
defendant was advised of his right to silence and counsel but was not told
of the availability of appointed counsel.
10 The Court stated that although Tucker was able to block the admission of
his own statement, it did not "believe that it requires the prosecution to
refrain from all use of those statements. 417 U.S. at 452.
11 105 S. Ct. 1285 (1985).
12 Id. at 1298.
13 401 U.S. 222 (1971).
14 420 U.S. 714 (1975).
15 Id. at 723.
16 See Minnick v. Mississippi, 111 S. Ct. 486 (1990). 17 102 S.Ct. 2727 (1982).

18 See, e.g., Mahan v. Plymouth County House of Corrections, 64 F.3d 14
(1st Cir. 1995) and cases cited therein.
19 963 F.2d 1220 (9th Cir. 1992) (en banc). 20 Cooper claimed a denial of
his right to counsel and silence, false arrest, false imprisonment,
improper training and procedures, injury to reputation and property
interest, invasion of privacy, illegal search and seizure, and conspiracy.
21 924 F.2d 1520 (9th Cir. 1991).
22 963 F.2d at 1243.
23 Cooper never retreated from his claims of innocence but did make some
statements that may have been slightly damaging had the criminal case gone
to trial. 24 963 F.2d at 1243-44.
25 Id.
26 342 U.S. 165 (1952).
27 Id. at 169.
28 Ibid.
29 963 F.2d at 1250.
30 922 F. Supp. 327 (C.D. Calif. 1996).
Law enforcement officers of other than federal jurisdiction who are
interested in this article should consult their legal advisors. Some police
procedures ruled permissible under federal constitutional law are of
questionable legality under state law or are not permitted at all.

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