OCTOBER TERM, 2002
Syllabus
CHAVEZ
v. MARTINEZ
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 01-1444. Argued December 4, 2002-Decided May 27, 2003
While respondent Martinez was being treated for gunshot wounds
received during an altercation with police, he was interrogated by
petitioner Chavez, a patrol supervisor. Martinez admitted that he
used heroin and had taken an officer's gun during the incident. At
no point was Martinez given
Miranda warnings. Although he
was never charged with a crime, and his answers were never used
against him in any criminal proceeding, Martinez filed a 42 U. S.
C. § 1983 suit, maintaining, among other things, that Chavez's
actions violated his Fifth Amendment right not to be "compelled in
any criminal case to be a witness against himself," and his
Fourteenth Amendment substantive due process right to be free from
coercive questioning. The District Court ruled that Chavez was not
entitled to qualified immunity, and the Ninth Circuit affirmed,
finding that Chavez's coercive questioning violated Martinez's
Fifth Amendment rights even though his statements were not used
against him in a criminal proceeding, and that a police officer
violates due process when he obtains a confession by coercive
conduct, regardless of whether the confession is subsequently used
at trial.
Held: The judgment is reversed, and the case is remanded.
270 F.3d
852, reversed and remanded.
JUSTICE THOMAS, joined by THE CHIEF JUSTICE, JUSTICE O'CONNOR,
and JUSTICE SCALIA, concluded in Part II-A that Chavez did not
deprive Martinez of his Fifth Amendment rights. Pp.766-773.
(a) An officer is entitled to qualified immunity if his alleged
conduct did not violate a constitutional right. See
Saucier
v.
Katz, 533
U. S. 194,201. The text of the Fifth Amendment's
Self-Incrimination Clause cannot support the Ninth Circuit's view
that mere compulsive questioning violates the Constitution. A
"criminal case" at the very least requires the initiation of legal
proceedings, and police questioning does not constitute such a
case. Statements compelled by police interrogation may not be used
against a defendant in a criminal case, but it is not until such
use that the Self-Incrimination Clause is violated, see
United
States v.
Verdugo-Urquidez, 494 U. S. 259, 264.
Martinez was never made to be a "witness" against himself because
his statements were never admitted as testimony against him in a
criminal case. Nor was
761
he ever placed under oath and exposed to "'the cruel trilemma of
selfaccusation, perjury or contempt.'''
Michigan v.
Tucker, 417 U.
S. 433, 445. Pp.766-767.
(b) The Ninth Circuit's approach is also irreconcilable with
this Court's case law. The government may compel witnesses to
testify at trial or before a grand jury, on pain of contempt, so
long as the witness is not the target of the criminal case in which
he testifies, see,
e. g., Kastigar v.
United States, 406 U. S. 441, 443; and
this Court has long permitted the compulsion of incriminating
testimony so long as the statements (or evidence derived from them)
cannot be used against the speaker in a criminal case,
id.,
at 458. Martinez was no more compelled in a criminal case to be a
witness against himself than an immunized witness forced to testify
on pain of contempt. That an immunized witness knows that his
statements may not be used against him, while Martinez likely did
not, does not make the immunized witness' statements any less
compelled and lends no support to the Ninth Circuit's conclusion
that coercive police interrogations alone violate the Fifth
Amendment. Moreover, those subjected to coercive interrogations
have an automatic protection from the use of their involuntary
statements in any subsequent criminal trial,
e. g., Oregon
v.
Elstad, 470
U. S. 298, 307-308, which is coextensive with the use and
derivative use immunity mandated by
Kastigar. Pp.
767-770.
(c) The fact that the Court has permitted the Fifth Amendment
privilege to be asserted in noncriminal cases does not alter the
conclusion in this case. Judicially created prophylactic rules-such
as the rule allowing a witness to insist on an immunity agreement
before being compelled to give testimony in noncriminal cases, and
the exclusionary rule-are designed to safeguard the core
constitutional right protected by the Self-Incrimination Clause.
They do not extend the scope of that right itself, just as
violations of such rules do not violate a person's constitutional
rights. Accordingly, Chavez's failure to read
Miranda
warnings to Martinez did not violate Martinez's constitutional
rights and cannot be grounds for a § 1983 action. And the absence
of a "criminal case" in which Martinez was compelled to be a
"witness" against himself defeats his core Fifth Amendment claim.
Pp. 770-773.
JUSTICE SOUTER delivered the opinion of the Court with respect
to Part II, concluding that the issue whether Martinez may pursue a
claim of liability for a substantive due process violation should
be addressed on remand. pp. 779-780.
JUSTICE SOUTER, joined by JUSTICE BREYER, concluded in Part I
that Martinez's claim that his questioning alone was a violation of
the Fifth and Fourteenth Amendments subject to redress by a 42 U.
S. C. § 1983 damages action, though outside the core of Fifth
Amendment
762
Syllabus
protection, could be recognized if a core guarantee, or the
judicial capacity to protect it, would be placed at risk absent
complementary protection, see,
e. g., McCarthy v.
Arndstein, 266
U. S. 34,40. However, Martinez cannot make the "powerful
showing" necessary to expand protection of the privilege against
self-incrimination to the point of the civil liability he requests.
Inherent in his purely Fifth Amendment claim is the risk of global
application in every instance of interrogation producing a
statement inadmissible under the Fifth and Fourteenth Amendments,
or violating one of the complementary rules this Court has accepted
in aid of the core privilege. And Martinez has offered no reason to
believe that this new rule is necessary in aid of the basic
guarantee. Pp.777-779.
THOMAS, J., announced the judgment of the Court and delivered an
opinion, which was joined by REHNQUIST, C. J., in full, by
O'CONNOR, J., as to Parts I and II-A, and by SCALIA, J., as to
Parts I and II. SOUTER, J., delivered an opinion, Part II of which
was for the Court and was joined by STEVENS, KENNEDY, GINSBURG, and
BREYER, JJ., and Part I of which concurred in the judgment and was
joined by BREYER, J.,
post, p. 777. SCALIA, J., filed an
opinion concurring in part in the judgment,
post, p. 780.
STEVENS, J., filed an opinion concurring in part and dissenting in
part,
post, p. 783. KENNEDY, J., filed an opinion concurring
in part and dissenting in part, which was joined by STEVENS, J., in
full and by GINSBURG, J., as to Parts II and III,
post, p.
789. GINSBURG, J., filed an opinion concurring in part and
dissenting in part,
post, p. 799.
Lawrence S.
Robbins argued the cause for
petitioner.
With him on the briefs were Roy T. Englert, Jr., Kathryn S.
Zecca, Alan E. Wisotsky, Jeffrey Held, and Gary L. Gillig.
Deputy Solicitor General Clement argued the cause for the United
States as amicus curiae urging reversal. With him on the brief were
Solicitor General Olson, Assistant Attorney General Chertoff,
Assistant Attorney General McCallum, John P. Elwood, Barbara L.
Herwig, and Peter R. Maier.
Richard S.
Paz argued the cause for respondent.
With him on the brief was
Sonia Mercado. *
*Briefs of
amici curiae urging reversal were filed for
the State of California
ex rel. Bill Lockyer by
Mr.
Lockyer, Attorney General,
pro se, Robert R. Anderson,
Chief Assistant Attorney General,
Jo Graves, Senior
763
JUSTICE THOMAS announced the judgment of the Court and delivered
an opinion. *
This case involves a 42 U. S. C. § 1983 suit arising out of
petitioner Ben Chavez's allegedly coercive interrogation of
respondent Oliverio Martinez. The United States Court of Appeals
for the Ninth Circuit held that Chavez was not entitled to a
defense of qualified immunity because he violated Martinez's
clearly established constitutional rights. We conclude that Chavez
did not deprive Martinez of a constitutional right.
I
On November 28, 1997, police officers Maria Pefia and Andrew
Salinas were near a vacant lot in a residential area of Oxnard,
California, investigating suspected narcotics activity. While Pefia
and Salinas were questioning an individual, they heard a bicycle
approaching on a darkened path that crossed the lot. They ordered
the rider, respondent Martinez, to dismount, spread his legs, and
place his hands behind his head. Martinez complied. Salinas then
conducted a
Assistant Attorney General,
Stan Cross, Supervising
Deputy Attorney General, and
Lee E. Seale and
Patrick
J. Whalen, Deputy Attorneys General; for the City of
Escondido by
Jeffrey R. Epp and
Richard J.
Schneider; for 50 California Cities et al. by
Girard
Fisher; for the Criminal Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson; and
for the National Association of Police Organizations by
Devallis
Rutledge and
William J. Johnson.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union Foundation et al. by
Mark D.
Rosenbaum, Steven R. Shapiro, Susan N. Herman, John T. Philips
born, and
Erwin Chemerinsky; for the Association of
Trial Lawyers of America by
Jeffrey L. Needle; and for the
National Police Accountability Project et al. by
Susan R.
Klein and
Michael Avery.
*THE CHIEF JUSTICE joins this opinion in its entirety. JUSTICE
O'CONNOR joins Parts I and II-A of this opinion. JUSTICE SCALIA
joins Parts I and II of this opinion.
764
Opinion of THOMAS, J.
patdown frisk and discovered a knife in Martinez's waistband. An
altercation ensued.1
There is some dispute about what occurred during the
altercation. The officers claim that Martinez drew Salinas' gun
from its holster and pointed it at them; Martinez denies this. Both
sides agree, however, that Salinas yelled, "'He's got my gun!'"
App. to Pet. for Cert. 3a. Pefia then drew her gun and shot
Martinez several times, causing severe injuries that left Martinez
permanently blinded and paralyzed from the waist down. The officers
then placed Martinez under arrest.
Petitioner Chavez, a patrol supervisor, arrived on the scene
minutes later with paramedics. Chavez accompanied Martinez to the
hospital and then questioned Martinez there while he was receiving
treatment from medical personnel. The interview lasted a total of
about 10 minutes, over a 45minute period, with Chavez leaving the
emergency room for periods of time to permit medical personnel to
attend to Martinez.
At first, most of Martinez's answers consisted of "I don't
know," "I am dying," and "I am choking." App. 14, 17, 18. Later in
the interview, Martinez admitted that he took the gun from the
officer's holster and pointed it at the police.
Id., at 16.
He also admitted that he used heroin regularly.
Id., at 18.
At one point, Martinez said "I am not telling you anything until
they treat me," yet Chavez continued the interview.
Id., at
14. At no point during the interview was Martinez given warnings
under
Miranda v.
Arizona, 384 U. S. 436 (1966). App.
to Pet. for Cert. 4a.
Martinez was never charged with a crime, and his answers were
never used against him in any criminal prosecution. Nevertheless,
Martinez filed suit under Rev. Stat. § 1979, 42
1 The parties disagree over what triggered the altercation. The
officers maintain that Martinez ran away from them and that they
tackled him while in pursuit; Martinez asserts that he never
attempted to flee and Salinas tackled him without warning.
765
u. s. C. § 1983, maintaining that Chavez's actions violated his
Fifth Amendment right not to be "compelled in any criminal case to
be a witness against himself," as well as his Fourteenth Amendment
substantive due process right to be free from coercive questioning.
The District Court granted summary judgment to Martinez as to
Chavez's qualified immunity defense on both the Fifth and
Fourteenth Amendment claims. Chavez took an interlocutory appeal to
the Ninth Circuit, which affirmed the District Court's denial of
qualified immunity.
Martinez v.
Oxnard, 270 F.3d
852 (2001). Applying
Saucier v.
Katz, 533 U. S. 194 (2001), the
Ninth Circuit first concluded that Chavez's actions, as alleged by
Martinez, deprived Martinez of his rights under the Fifth and
Fourteenth Amendments. The Ninth Circuit did not attempt to explain
how Martinez had been "compelled in any criminal case to be a
witness against himself." Instead, the Ninth Circuit reiterated the
holding of an earlier Ninth Circuit case,
Cooper v.
Dupnik, 963 F.2d
1220, 1229 (1992) (en banc), that "the Fifth Amendment's
purpose is to prevent coercive interrogation practices that are
destructive of human dignity," 270 F. 3d, at 857 (internal
quotation marks omitted), and found that Chavez's "coercive
questioning" of Martinez violated his Fifth Amendment rights,
"[e]ven though Martinez's statements were not used against him in a
criminal proceeding,"
ibid. As to Martinez's due process
claim, the Ninth Circuit held that "a police officer violates the
Fourteenth Amendment when he obtains a confession by coercive
conduct, regardless of whether the confession is subsequently used
at trial."
Ibid.
The Ninth Circuit then concluded that the Fifth and Fourteenth
Amendment rights asserted by Martinez were clearly established by
federal law, explaining that a reasonable officer "would have known
that persistent interrogation of the suspect despite repeated
requests to stop violated the sus-
766
Opinion of THOMAS, J.
pect's Fifth and Fourteenth Amendment right to be free from
coercive interrogation."
Id., at 858.
We granted certiorari. 535 U. S. 1111 (2002).
II
In deciding whether an officer is entitled to qualified
immunity, we must first determine whether the officer's alleged
conduct violated a constitutional right. See
Katz, 533 U.
S., at 201. If not, the officer is entitled to qualified immunity,
and we need not consider whether the asserted right was "clearly
established."
Ibid. We conclude that Martinez's allegations
fail to state a violation of his constitutional rights.
A 1
The Fifth Amendment, made applicable to the States by the
Fourteenth Amendment,
Malloy v.
Hogan, 378 U. S. 1 (1964),
requires that "[n]o person ... shall be compelled
in any
criminal case to be a
witness against himself." U. S.
Const., Amdt. 5 (emphases added). We fail to see how, based on the
text of the Fifth Amendment, Martinez can allege a violation of
this right, since Martinez was never prosecuted for a crime, let
alone compelled to be a witness against himself in a criminal
case.
Although Martinez contends that the meaning of "criminal case"
should encompass the entire criminal investigatory process,
including police interrogations, Brief for Respondent 23, we
disagree. In our view, a "criminal case" at the very least requires
the initiation of legal proceedings. See
Blyew v.
United
States, 13 Wall. 581, 595 (1872) ("The words 'case' and 'cause'
are constantly used as synonyms in statutes and judicial decisions,
each meaning
a proceeding in court, a suit, or action"
(emphasis added)); Black's Law Dictionary 215 (6th ed. 1990)
(defining "[c]ase" as "[a] general term for an action, cause, suit,
or controversy at law ... ; a question
contested before a court
of justice" (emphasis added)). We
767
need not decide today the precise moment when a "criminal case"
commences; it is enough to say that police questioning does not
constitute a "case" any more than a private investigator's
precomplaint activities constitute a "civil case." Statements
compelled by police interrogations of course may not be used
against a defendant at trial, see
Brown v.
Mississippi, 297 U. S. 278, 286
(1936), but it is not until their use in a criminal case that a
violation of the SelfIncrimination Clause occurs, see
United
States v.
VerdugoUrquidez, 494 U. S. 259, 264 (1990)
("The privilege against self-incrimination guaranteed by the Fifth
Amendment is
a fundamental trial right of criminal
defendants. Although conduct by law enforcement officials prior to
trial may ultimately impair that right,
a constitutional
violation occurs only at trial" (emphases added; citations
omitted));
Withrow v.
Williams, 507 U. S. 680, 692 (1993)
(describing the Fifth Amendment as a "'trial right' ");
id.,
at 705 (O'CONNOR, J., concurring in part and dissenting in part)
(describing "true Fifth Amendment claims" as "the extraction
and
use of compelled testimony" (emphasis altered)).
Here, Martinez was never made to be a "witness" against himself
in violation of the Fifth Amendment's SelfIncrimination Clause
because his statements were never admitted as testimony against him
in a criminal case. Nor was he ever placed under oath and exposed
to "'the cruel trilemma of self-accusation, perjury or contempt.'"
Michigan v.
Tucker, 417 U. S. 433, 445 (1974)
(quoting
Murphy v.
Waterfront Comm'n of N.
Y.
Harbor, 378 U. S.
52, 55 (1964)). The text of the Self-Incrimination Clause
simply cannot support the Ninth Circuit's view that the mere use of
compulsive questioning, without more, violates the
Constitution.
2
Nor can the Ninth Circuit's approach be reconciled with our case
law. It is well established that the government may compel
witnesses to testify at trial or before a grand
768
Opinion of THOMAS, J.
jury, on pain of contempt, so long as the witness is not the
target of the criminal case in which he testifies. See
Minnesota v.
Murphy, 465 U. S. 420, 427
(1984);
Kastigar v.
United States, 406 U. S. 441, 443
(1972). Even for persons who have a legitimate fear that their
statements may subject them to criminal prosecution, we have long
permitted the compulsion of incriminating testimony so long as
those statements (or evidence derived from those statements) cannot
be used against the speaker in any criminal case. See
Brown
v.
Walker, 161
U. S. 591, 602-604 (1896);
Kastigar, supra, at
458;
United States v.
Balsys, 524 U. S. 666, 671-672
(1998). We have also recognized that governments may penalize
public employees and government contractors (with the loss of their
jobs or government contracts) to induce them to respond to
inquiries, so long as the answers elicited (and their fruits) are
immunized from use in any criminal case against the speaker. See
Lefkowitz v.
Turley, 414 U. S. 70, 84-85 (1973)
("[T]he State may insist that [contractors] ... either respond to
relevant inquiries about the performance of their contracts or
suffer cancellation");
Lefkowitz v.
Cunningham,
431 U. S. 801,
806 (1977) ("Public employees may constitutionally be discharged
for refusing to answer potentially incriminating questions
concerning their official duties if they have not been required to
surrender their constitutional immunity" against later use of
statements in criminal proceedings).2 By contrast, no "penalty" may
ever be imposed on
2 The government may not, however, penalize public employees and
government contractors to induce them to waive their
immunity from the use of their compelled statements in
subsequent criminal proceedings. See
Uniformed Sanitation Men
Assn., Inc. v.
Commissioner of Sanitation of City of New
York, 392 U. S.
280 (1968);
Lefkowitz v.
Turley, 414 U. S. 70 (1973), and
this is true even though immunity is not itself a right secured by
the text of the Self-Incrimination Clause, but rather a
prophylactic rule we have constructed to protect the Fifth
Amendment's right from invasion. See Part II-A-3,
infra.
Once an immunity waiver is signed, the signatory is unable to
assert a Fifth Amendment objection to the subsequent use of his
statements in a criminal case, even if his statements were
769
someone who exercises his core Fifth Amendment right not to be a
"witness" against himself in a "criminal case." See
Griffin
v.
California, 380 U. S. 609, 614 (1965)
(the trial court's and the prosecutor's comments on the defendant's
failure to testify violates the Self-Incrimination Clause of the
Fifth Amendment). Our holdings in these cases demonstrate that,
contrary to the Ninth Circuit's view, mere coercion does not
violate the text of the Self-Incrimination Clause absent use of the
compelled statements in a criminal case against the witness.
We fail to see how Martinez was any more "compelled in any
criminal case to be a witness against himself" than an immunized
witness forced to testify on pain of contempt. One difference,
perhaps, is that the immunized witness
knows that his
statements will not, and may not, be used against him, whereas
Martinez likely did not. But this does not make the statements of
the immunized witness any less "compelled" and lends no support to
the Ninth Circuit's conclusion that coercive police interrogations,
absent the use of the involuntary statements in a criminal case,
violate the Fifth Amendment's Self-Incrimination Clause. Moreover,
our cases provide that those subjected to coercive police
interrogations have an
automatic protection from the use of
their involuntary statements (or evidence derived from their
statements) in any subsequent criminal trial.
Oregon v.
Elstad, 470 U.
S. 298, 307-308 (1985);
United States v.
Blue,
384 U. S. 251, 255 (1966);
Leyra v.
Denno,
347 U. S. 556,
558
(1954); Ashcraft v.
Tennessee, 322 U. S. 143, 155
(1944). See also
Pillsbury Co. v.
Conboy, 459 U. S. 248, 278 (1983)
(Blackmun, J., concurring in judgment);
Williams v.
United States, 401 U. S. 646, 662 (1971)
(Brennan, J., concurring in result). This protection is, in fact,
coextensive with the use and de-
in fact compelled. A waiver of immunity is therefore a
prospective waiver of the core self-incrimination right in any
subsequent criminal proceeding, and States cannot condition public
employment on the waiver of constitutional rights,
Lefkowitz,
supra, at 85.
770
Opinion of THOMAS, J.
rivative use immunity mandated by
Kastigar when the
government compels testimony from a reluctant witness. See 406 U.
S., at 453. Accordingly, the fact that Martinez did not
know
his statements could not be used against him does not change our
view that no violation of the Fifth Amendment's Self-Incrimination
Clause occurred here.
3
Although our cases have permitted the Fifth Amendment's
self-incrimination privilege to be asserted in noncriminal cases,
see
id., at 444-445 (recognizing that the "Fifth Amendment
privilege against compulsory self-incrimination
... can be
asserted in any proceeding, civil or criminal, administrative
or judicial, investigatory or adjudicatory ... ");
Lefkowitz
v.
Turley, supra, at 77 (stating that the Fifth Amendment
privilege allows one "not to answer official questions put to him
in any other proceeding, civil or criminal, formal or informal,
where the answers might incriminate him in future criminal
proceedings"), that does not alter our conclusion that a violation
of the constitutional
right against self-incrimination
occurs only if one has been compelled to be a witness against
himself in a criminal case.
In the Fifth Amendment context, we have created prophylactic
rules designed to safeguard the core constitutional right protected
by the Self-Incrimination Clause. See,
e. g.,
Tucker, 417 U. S., at 444 (describing the "procedural
safeguards" required by
Miranda as "not themselves rights
protected by the Constitution but ... measures to insure that the
right against compulsory self-incrimination was protected" to
"provide practical reinforcement for the right");
Elstad,
supra, at 306 (stating that "[t]he
Miranda exclusionary
rule ... serves the Fifth Amendment and sweeps more broadly than
the Fifth Amendment itself"). Among these rules is an evidentiary
privilege that protects witnesses from being forced to give
incriminating testimony, even in noncriminal cases, unless that
testimony has been immunized
771
from use and derivative use in a future criminal proceeding
before it is compelled. See
Kastigar, supra, at 453;
Maness v.
Meyers, 419 U. S. 449, 461-462
(1975) (noting that the Fifth Amendment privilege may be asserted
if one is "compelled to produce evidence which later
may be
used against him as an accused in a criminal action" (emphasis
added)).
By allowing a witness to insist on an immunity agreement
before being compelled to give incriminating testimony in a
noncriminal case, the privilege preserves the core Fifth Amendment
right from invasion by the use of that compelled testimony in a
subsequent criminal case. See
Tucker, supra, at 440-441
("Testimony obtained in civil suits, or before administrative or
legislative committees, could [absent a grant of immunity] prove so
incriminating that a person compelled to give such testimony might
readily be convicted on the basis of those disclosures in a
subsequent criminal proceeding"). Because the failure to assert the
privilege will often forfeit the right to exclude the evidence in a
subsequent "criminal case," see
Murphy, 465 U. S., at 440;
Garner v.
United States, 424 U. S. 648, 650 (1976)
(failure to claim privilege against self-incrimination before
disclosing incriminating information on tax returns forfeited the
right to exclude that information in a criminal prosecution);
United States v.
Kordel, 397 U. S. 1, 7 (1970)
(criminal defendant forfeited his right to assert Fifth Amendment
privilege with regard to answers he gave to interrogatories in a
prior civil proceeding), it is necessary to allow assertion of the
privilege prior to the commencement of a "criminal case" to
safeguard the core Fifth Amendment trial right. If the privilege
could not be asserted in such situations, testimony given in those
judicial proceedings would be deemed "voluntary," see
Rogers v.
United States, 340 U. S. 367, 371
(1951);
United States v.
Monia, 317 U. S. 424, 427
(1943); hence, insistence on a prior grant of immunity is essential
to memorialize the fact that the testimony had indeed been
compelled and therefore
772
Opinion of THOMAS, J.
protected from use against the speaker in any "criminal
case."
Rules designed to safeguard a constitutional right, however, do
not extend the scope of the constitutional right itself, just as
violations of judicially crafted prophylactic rules do not violate
the constitutional rights of any person. As we explained, we have
allowed the Fifth Amendment privilege to be asserted by witnesses
in noncriminal cases in order to safeguard the core constitutional
right defined by the Self-Incrimination Clause-the right not to be
compelled in any criminal case to be a witness against oneself. 3
We have likewise established the
Miranda exclusionary rule
as a prophylactic measure to prevent violations of the right
protected by the text of the Self-Incrimination Clause-the
admission into evidence in a criminal case of confessions obtained
through coercive custodial questioning. See
Warren v.
Lincoln, 864 F.2d
1436, 1442
(CA8 1989) (alleged
Miranda violation
not actionable under § 1983);
Giuffre v.
Bissell,
31 F.3d
1241, 1256
(CA3 1994) (same);
Bennett v.
Passic, 545 F. 2d 1260, 1263 (CAlO 1976) (same); see also
New York v.
Quarles, 467 U. S. 649, 686 (1984)
(Marshall, J., dissenting) ("All the Fifth Amendment forbids is the
introduction of coerced statements at trial"). Accordingly,
Chavez's failure to read
Miranda warnings to Martinez did
not violate Martinez's constitutional rights and cannot be grounds
for a § 1983 action. See
Connecticut v.
Barrett,
479 U. S. 523,
528 (1987)
(Miranda's warning requirement is "not itself
required by the Fifth Amendmen[t] ... but is instead justified only
by reference to its prophylactic purpose");
Tucker, supra,
at 444
(Miranda's safeguards "were not themselves rights
protected by the Constitution but were instead measures to insure
that the right against compulsory self-incrimination was
protected"). And the absence of a "criminal case" in which
3 That the privilege is a prophylactic one does not alter our
penalty cases jurisprudence, which allows such privilege to be
asserted prior to, and outside of, criminal proceedings.
773
Martinez was compelled to be a "witness" against himself defeats
his core Fifth Amendment claim. The Ninth Circuit's view that mere
compulsion violates the SelfIncrimination Clause, see 270 F. 3d, at
857;
California Attorneysfor Criminal Justice v.
Butts, 195 F.3d
1039,1045-1046
(1999); Cooper, 963 F. 2d, at 1243-1244,
finds no support in the text of the Fifth Amendment and is
irreconcilable with our case law.4 Because we find that Chavez's
alleged conduct did not violate the Self-Incrimination Clause, we
reverse the Ninth Circuit's denial of qualified immunity as to
Martinez's Fifth Amendment claim.
Our views on the proper scope of the Fifth Amendment's Self-
Incrimination Clause do not mean that police torture or other abuse
that results in a confession is constitutionally permissible so
long as the statements are not used at trial; it simply means that
the Fourteenth Amendment's Due Process Clause, rather than the
Fifth Amendment's SelfIncrimination Clause, would govern the
inquiry in those cases and provide relief in appropriate
circumstances.5
4 It is JUSTICE KENNEDY'S indifference to the text of the
SelfIncrimination Clause, as well as a conspicuous absence of a
single citation to the actual text of the Fifth Amendment, that
permits him to adopt the Ninth Circuit's interpretation.
Mincey v.
Arizona, 437 U. S. 385 (1978), on
which JUSTICE KENNEDY and JUSTICE GINSBURG rely in support of their
reading of the Fifth Amendment, was a case addressing the
admissibility of a coerced confession under the
Due
Process Clause.
Mincey did not even mention the Fifth
Amendment or the Self-Incrimination Clause, and refutes JUSTICE
KENNEDY'S and JUSTICE GINSBURG'S assertions that their
interpretation of that Clause would have been known to any
reasonable officer at the time Chavez conducted his
interrogation.
5We also do not see how, in light of
Graham v.
Connor, 490 U.
S. 386 (1989), JUSTICE KENNEDY can insist that "the
Self-Incrimination Clause is applicable at the time and place
police use compulsion to extract a statement from a suspect" while
at the same time maintaining that the use of "torture or its
equivalent in an attempt to induce a statement" violates the Due
Process Clause.
Post, at 795, 796 (opinion concurring in
part and dissenting in part).
Graham foreclosed the use of
substantive due proc-
774
Opinion of THOMAS, J.
B
The Fourteenth Amendment provides that no person shall be
deprived "of life, liberty, or property, without due process of
law." Convictions based on evidence obtained by methods that are
"so brutal and so offensive to human dignity" that they "shoc[k]
the conscience" violate the Due Process Clause.
Rochin v.
California, 342 U. S. 165, 172, 174
(1952) (overturning conviction based on evidence obtained by
involuntary stomach pumping). See also
Breithaupt v.
Abram, 352 U.
S. 432, 435 (1957) (reiterating that evidence obtained through
conduct that" 'shock[s] the conscience'" may not be used to support
a criminal conviction). Although
Rochin did not establish a
civil remedy for abusive police behavior, we recognized in
County of Sacramento v.
Lewis, 523 U. S. 833, 846
(1998), that deprivations of liberty caused by "the most egregious
official conduct,"
id., at 846, 847-848, n. 8, may violate
the Due Process Clause. While we rejected, in
Lewis, a §
1983 plaintiff's contention that a police officer's deliberate
indifference during a high-speed chase that caused the death of a
motorcyclist violated due process,
id., at 854, we left open
the possibility that unauthorized police behavior in other contexts
might "shock the conscience" and give rise to § 1983 liability.
Id., at 850.
We are satisfied that Chavez's questioning did not violate
Martinez's due process rights. Even assuming,
arguendo, that
the persistent questioning of Martinez somehow deprived him of a
liberty interest, we cannot agree with Marti-
ess analysis in claims involving the use of excessive force in
effecting an arrest and held that such claims are governed
solely by the Fourth Amendment's prohibitions against
"unreasonable" seizures, because the Fourth Amendment provided the
explicit source of constitutional protection against such conduct.
490 U. S., at 394-395. If, as JUSTICE KENNEDY believes, the Fifth
Amendment's Self-Incrimination Clause governs coercive police
interrogation even absent use of compelled statements in a criminal
case, then
Graham suggests that the Due Process Clause would
not.
775
nez's characterization of Chavez's behavior as "egregious" or
"conscience shocking." As we noted in
Lewis, the official
conduct "most likely to rise to the conscience-shocking level" is
the "conduct intended to injure in some way unjustifiable by any
government interest."
Id., at 849. Here, there is no
evidence that Chavez acted with a purpose to harm Martinez by
intentionally interfering with his medical treatment. Medical
personnel were able to treat Martinez throughout the interview,
App. to Pet. for Cert. 4a, 18a, and Chavez ceased his questioning
to allow tests and other procedures to be performed.
Id., at
4a. Nor is there evidence that Chavez's conduct exacerbated
Martinez's injuries or prolonged his stay in the hospital.
Moreover, the need to investigate whether there had been police
misconduct constituted a justifiable government interest given the
risk that key evidence would have been lost if Martinez had died
without the authorities ever hearing his side of the story.
The Court has held that the Due Process Clause also protects
certain "fundamental liberty interest[s]" from deprivation by the
government, regardless of the procedures provided, unless the
infringement is narrowly tailored to serve a compelling state
interest.
Washington v.
Glucksberg, 521 U. S. 702,
721 (1997). Only fundamental rights and liberties which are "
'deeply rooted in this Nation's history and tradition'" and"
'implicit in the concept of ordered liberty''' qualify for such
protection.
Ibid. Many times, however, we have expressed our
reluctance to expand the doctrine of substantive due process, see
Lewis, supra, at 842;
Glucksberg, supra, at 720;
Albright v.
Oliver, 510 U. S. 266, 271
(1994);
Reno v.
Flores, 507 U. S. 292, 302
(1993); in large part "because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended,"
Collins v.
Harker Heights, 503 U. S. 115, 125
(1992). See also
Regents of Univ. of Mich. v.
Ewing,
474 U. S. 214,
225-226 (1985).
Glucksberg requires a "'careful description'" of the
asserted fundamental liberty interest for the purposes of sub-
776
Opinion of THOMAS, J.
stantive due process analysis; vague generalities, such as "the
right not to be talked to," will not suffice. 521 U. S., at 721. We
therefore must take into account the fact that Martinez was
hospitalized and in severe pain during the interview, but also that
Martinez was a critical nonpolice witness to an altercation
resulting in a shooting by a police officer, and that the situation
was urgent given the perceived risk that Martinez might die and
crucial evidence might be lost. In these circumstances, we can find
no basis in our prior jurisprudence, see,
e. g., Miranda,
384 U. S., at 477-478 ("It is an act of responsible citizenship for
individuals to give whatever information they may have to aid in
law enforcement"), or in our Nation's history and traditions to
suppose that freedom from unwanted police questioning is a right so
fundamental that it cannot be abridged absent a "compelling state
interest."
Flores, supra, at 302. We have never required
such a justification for a police interrogation, and we decline to
do so here. The lack of any "guideposts for responsible
decisionmaking" in this area, and our oft-stated reluctance to
expand the doctrine of substantive due process, further counsel
against recognizing a new "fundamental liberty interest" in this
case.
We conclude that Martinez has failed to allege a violation of
the Fourteenth Amendment, and it is therefore unnecessary to
inquire whether the right asserted by Martinez was clearly
established.
III
Because Chavez did not violate Martinez's Fifth and Fourteenth
Amendment rights, he was entitled to qualified immunity. The
judgment of the Court of Appeals for the Ninth Circuit is therefore
reversed, and the case is remanded for further proceedings.
It is so ordered.
777
JUSTICE SOUTER delivered an opinion, Part II of which is the
opinion of the Court and Part I of which is an opinion concurring
in the judgment. *
I
Respondent Martinez's claim under 42 U. S. C. § 1983 for
violation of his privilege against compelled self-incrimination
should be rejected and his case remanded for further proceedings. I
write separately because I believe that our decision requires a
degree of discretionary judgment greater than JUSTICE THOMAS
acknowledges. As he points out, the text of the Fifth Amendment
(applied here under the doctrine of Fourteenth Amendment
incorporation) focuses on courtroom use of a criminal defendant's
compelled, selfincriminating testimony, and the core of the
guarantee against compelled self-incrimination is the exclusion of
any such evidence. JUSTICE GINSBURG makes it clear that the present
case is very close to
Mincey v.
Arizona, 437 U. S. 385 (1978), and
Martinez's testimony would clearly be inadmissible if offered in
evidence against him. But Martinez claims more than evidentiary
protection in asking this Court to hold that the questioning alone
was a completed violation of the Fifth and Fourteenth Amendments
subject to redress by an action for damages under § 1983.
To recognize such a constitutional cause of action for
compensation would, of course, be well outside the core of Fifth
Amendment protection, but that alone is not a sufficient reason to
reject Martinez's claim. As Justice Harlan explained in his dissent
in
Miranda v.
Arizona, 384 U. S. 436 (1966),
"extension[sJ" of the bare guarantee may be warranted,
id.,
at 510, if clearly shown to be desirable means to protect the basic
right against the invasive pressures of contemporary society,
id., at 515. In this light, we can make sense of a
*JUSTICE BREYER joins this opinion in its entirety. JUSTICE
STEVENS, JUSTICE KENNEDY, and JUSTICE GINSBURG join Part II of this
opinion.
778
SOUTER, J., concurring in judgment
variety of Fifth Amendment holdings: barring compulsion to give
testimonial evidence in a civil proceeding, see
McCarthy v.
Arndstein, 266
U. S. 34, 40 (1924); requiring a grant of immunity in advance
of any testimonial proffer, see
Kastigar v.
United
States, 406 U. S.
441, 446-447 (1972); precluding threats or impositions of
penalties that would undermine the right to immunity, see,
e.
g., Uniformed Sanitation Men Assn., Inc. v.
Commissioner of
Sanitation of City of New York, 392 U. S. 280, 284-285
(1968);
Lefkowitz v.
Turley, 414 U. S. 70, 77-79
(1973);
Lefkowitz v.
Cunningham, 431 U. S. 801, 804-806
(1977);
McKune v.
Lile, 536 U. S. 24, 35 (2002)
(plurality opinion); and conditioning admissibility on warnings and
waivers to promote intelligent choices and to simplify subsequent
inquiry into voluntariness, see
Miranda, supra. All of this
law is outside the Fifth Amendment's core, with each case
expressing a judgment that the core guarantee, or the judicial
capacity to protect it, would be placed at some risk in the absence
of such complementary protection.
I do not, however, believe that Martinez can make the "powerful
showing," subject to a realistic assessment of costs and risks,
necessary to expand protection of the privilege against compelled
self-incrimination to the point of the civil liability he asks us
to recognize here. See
id., at 515, 517 (Harlan, J.,
dissenting). The most obvious drawback inherent in Martinez's
purely Fifth Amendment claim to damages is its risk of global
application in every instance of interrogation producing a
statement inadmissible under Fifth and Fourteenth Amendment
principles, or violating one of the complementary rules we have
accepted in aid of the privilege against evidentiary use. If
obtaining Martinez's statement is to be treated as a stand-alone
violation of the privilege subject to compensation, why should the
same not be true whenever the police obtain any involuntary
selfincriminating statement, or whenever the government so much as
threatens a penalty in derogation of the right to
779
immunity, or whenever the police fail to honor
Miranda?*
Martinez offers no limiting principle or reason to foresee a
stopping place short of liability in all such cases.
Recognizing an action for damages in every such instance not
only would revolutionize Fifth and Fourteenth Amendment law, but
would beg the question that must inform every extension or
recognition of a complementary rule in service of the core
privilege: why is this new rule necessary in aid of the basic
guarantee? Martinez has offered no reason to believe that the
guarantee has been ineffective in all or many of those
circumstances in which its vindication has depended on excluding
testimonial admissions or barring penalties. And I have no reason
to believe the law has been systemically defective in this
respect.
But if there is no failure of efficacy infecting the existing
body of Fifth Amendment law, any argument for a damages remedy in
this case must depend not on its Fifth Amendment feature but upon
the particular charge of outrageous conduct by the police,
extending from their initial encounter with Martinez through the
questioning by Chavez. That claim, however, if it is to be
recognized as a constitutional one that may be raised in an action
under § 1983, must sound in substantive due process. See generally
County of Sacramento v.
Lewis, 523 U. S. 833, 849 (1998)
("[C]onduct intended to injure in some way unjustifiable by any
government interest is the sort of official action most likely to
rise to the conscience-shocking level"). Here, it is enough to say
that JUSTICE STEVENS shows that Martinez has a serious argument in
support of such a position.
II
Whether Martinez may pursue a claim of liability for a
substantive due process violation is thus an issue that should
*The question whether the absence of
Miranda warnings may
be a basis for a § 1983 action under any circumstance is not before
the Court.
780
SCALIA, J., concurring in part in judgment
be addressed on remand, along with the scope and merits of any
such action that may be found open to him.
JUSTICE SCALIA, concurring in part in the judgment.
I agree with the Court's rejection of Martinez's Fifth Amendment
claim, that is, his claim that Chavez violated his right not to be
compelled in any criminal case to be a witness against himself.!
See
ante, at 766-767 (plurality opinion);
ante, at
777-779 (SOUTER, J., concurring in judgment). And without a
violation of the right protected by the text of the
Self-Incrimination Clause (what the plurality and JUSTICE SOUTER
call the Fifth Amendment's "core"), Martinez's 42 U. S. C. § 1983
action is doomed. Section 1983 does not provide remedies for
violations of judicially created prophylactic rules, such as the
rule of
Miranda v.
Arizona, 384 U. S. 436 (1966), as
the Court today holds, see
ante, at 772 (plurality opinion);
post, at 789-790 (KENNEDY, J., concurring in part and
dissenting in part); nor is it concerned with "extensions" of
constitutional provisions designed to safeguard actual
constitutional rights, cf.
ante, at 777-778 (SOUTER, J.,
concurring in judgment).2 Rather, a plaintiff seeking redress
through § 1983 must establish the violation of a federal
constitutional or statutory
right. See
Blessing v.
Freestone, 520
U. S. 329, 340 (1997);
Golden State Transit Corp. v.
Los Angeles, 493 U. S. 103, 106 (1989).
1 While occasionally referring to this as a "Fifth Amendment
claim," a convention commonly followed, JUSTICE THOMAS and JUSTICE
SOUTER acknowledge that technically it is a Fourteenth Amendment
claim, since it is only
through the Fourteenth Amendment
that the Fifth is "made applicable to the States,"
ante, at
766 (opinion of THOMAS, J.), citing
Malloy v.
Hogan,
378 U. S. 1
(1964).
2 Still less does § 1983 provide a remedy for actions
inconsistent with the perceived "purpose" of a constitutional
provision. Cf.
Martinez v.
Oxnard, 270 F.3d
852, 857
(CA9 2001) ("[T]he Fifth Amendment's purpose is
to prevent coercive interrogation practices that are destructive of
human dignity" (internal quotation marks omitted)).
781
My reasons for rejecting Martinez's Fifth Amendment claim are
those set forth in JUSTICE THOMAS'S opinion. I join Parts I and II
of that opinion, including Part II-B, which deals with substantive
due process. Consideration and rejection of that constitutional
claim is absolutely necessary to support reversal of the Ninth
Circuit's judgment. For after discussing (and erroneously deciding)
Martinez's Fifth Amendment claim, the Ninth Circuit continued as
follows:
"Likewise, a police officer violates the Fourteenth Amendment
when he obtains a confession by coercive conduct, regardless of
whether the confession is subsequently used at trial. 'The due
process violation caused by coercive behavior of law-enforcement
officers in pursuit of a confession is complete with the
coercive behavior itself ... The actual use or attempted use of
that coerced statement in a court of law is not necessary to
complete the affront to the Constitution.' Cooper v. Dupnik,
963 F.2d
1244-45 (emphasis added). Mr. Martinez has thus stated a
prima facie case that Sergeant Chavez violated his Fifth and
Fourteenth Amendment rights to be free from police coercion in
pursuit of a confession." 270 F.3d
852, 857 (2001).
It seems to me impossible to interpret this passage as anything
other than an invocation of the doctrine of "substantive due
process," which makes unlawful certain government conduct,
regardless of whether the procedural guarantees of the Fifth
Amendment (or the guarantees of any of the other provisions of the
Bill of Rights) have been violated. See
Washington v.
Glucksberg, 521 U. S. 702 (1997). To
be sure, the term "substantive due process" is not used in the
quoted passage, but the passage's technically false dichotomy
between Fifth Amendment and Fourteenth Amendment rights uses
"Fourteenth Amendment rights" as a stand-in for
that aspect
of the Fourteenth Amendment which consists of the
782
SCALIA, J., concurring in part in judgment
doctrine of substantive due process. (JUSTICE THOMAS uses
similar shorthand in the concluding sentence of his analysis:
"Our views on the proper scope of the Fifth Amendment's Self-
Incrimination Clause do not mean that police torture or other abuse
that results in a confession is constitutionally permissible so
long as the statements are not used at trial; it simply means that
the Fourteenth Amendment's Due Process Clause, rather than the
Fifth Amendment's SelfIncrimination Clause, would govern the
inquiry in those cases."
Ante, at 773.) What other
possible meaning could the passage possess? Surely the Ninth
Circuit was not expending a paragraph to make the utterly useless
observation that, in addition to violating the Fifth Amendment
(because that is incorporated in the Fourteenth) Chavez violated
the Fourteenth Amendment (because that incorporates the Fifth).
That
substantive due process was the point is confirmed by
the fact that the sole authority cited to support violation of "the
Fourteenth Amendment" is
Cooper v.
Dupnik,
963 F.2d
1220, 1244-1245 (1992), a Ninth Circuit case that explicitly
recognized a substantive-due-process right to be free from coercive
police questioning. See
id., at 1244-1250.
Since the Ninth Circuit's Fourteenth Amendment holding rested
upon substantive due process, we are without authority to disturb
that court's judgment solely because of our disagreement with its
Fifth Amendment (Self-Incrimination Clause) analysis; the
substantive-due-process holding provides an independent ground
supporting the decision that Chavez was not entitled to qualified
immunity. While JusTICE SOUTER declines to address that independent
groundeven though the parties extensively briefed the issue, Brief
for Petitioner 21-36; Brief for Respondent 29-40; Reply Brief for
Petitioner 8-12; Brief for United States as
Amicus Curiae
17-23, and even though JUSTICE STEVENS discusses it in dissent,
post, at 787-788 (opinion concurring in part and dissenting
in part)-I believe that addressing it, and resolving
783
it against respondent, is essential to the Court's disposition,
which reverses the Ninth Circuit's judgment in its entirety.
I therefore see no basis for a remand to determine "[w]hether
Martinez may pursue a claim of liability for a substantive due
process violation."
Ante, at 779 (majority opinion). That
question has already been decided by the Ninth Circuit, and we
today reverse its decision. My disagreement with the Court,
however, is of little consequence, because Martinez will not be
able to prevail on remand by raising anew his
substantive-due-process claim. Not only is the claim meritless, as
JUSTICE THOMAS demonstrates,
ante, at 774-776, but Martinez
already had his chance to press a substantive-due-process theory in
the Court of Appeals and chose not to, even though Ninth Circuit
precedent clearly established substantive due process
(including-contrary to the Government's assertion at oral argument,
see Tr. of Oral Arg. 26-a "shocks the conscience" criterion) as an
available theory of liability under the Fourteenth Amendment. See
Cooper, supra, at 1248 ("There is a second Fourteenth
Amendment substantive due process yardstick available to Cooper as
a theory of § 1983 liability. The test is whether the Task Force's
conduct 'shocks the conscience' "). Nowhere did respondent's
appellate brief mention the words "substantive due process"; the
only rights it asserted were the right against self-incrimination
and the right to warnings under
Miranda v.
Arizona,
384 U. S. 436
(1966). Appellees' Responding Brief in No. 00-56520
(CA9),
pp. 28-32, 36-43. If, as JUSTICE SOUTER apparently believes, the
opinion below did not address respondent's "substantive due
process" claim, that claim has been forfeited.
JUSTICE STEVENS, concurring in part and dissenting in part.
As a matter of fact, the interrogation of respondent was the
functional equivalent of an attempt to obtain an involuntary
confession from a prisoner by torturous methods. As
784
Opinion of STEVENS, J.
a matter of law, that type of brutal police conduct constitutes
an immediate deprivation of the prisoner's constitutionally
protected interest in liberty. Because these propositions are so
clear, the District Court and the Court of Appeals correctly held
that petitioner is not entitled to qualified immunity.
I
What follows is an English translation of portions of the
tape-recorded questioning in Spanish that occurred in the emergency
room of the hospital when, as is evident from the text, both
parties believed that respondent was about to die:
"Chavez: What happened? Olivero, tell me what
happened.
"O[liverio] M[artinez]: I don't know. "Chavez: I don't know what
happened (sic)?
"0. M.: Ay! I am dying. Ay! What are you doing to
me?
"No, ... ! (unintelligible scream). "Chavez: What happened, sir?
"0. M.: My foot hurts ...
"Chavez: Olivera. Sir, what happened? "0. M.: I am choking.
"Chavez: Tell me what happened. "0. M.: I don't know.
"Chavez: 'I don't know.'
"0. M.: My leg hurts.
"Chavez: I don't know what happened (sic)? "0. M.: It hurts
...
"Chavez: Hey, hey look.
"0. M.: I am choking.
"Chavez: Can you hear? look listen, I am Benjamin Chavez with
the police here in Oxnard, look.
"0. M.: I am dying, please.
"Chavez: OK, yes, tell me what happened. If you are going to
die, tell me what happened. Look I need to tell (sic) what
happened.
785
"0. M.: I don't know.
"Chavez: You don't know, I don't know what hap-
pened (sic)? Did you talk to the police? "0. M.: Yes.
"Chavez: What happened with the police? "0. M.: We fought.
"Chavez: Huh? What happened with the police? "0. M.: The police
shot me.
"Chavez: Why?
"0. M.: Because I was fighting with him.
"Chavez: Oh, why were you fighting with the police? "0. M.: I am
dying ...
"Chavez: OK, yes you are dying, but tell me why you are
fighting, were you fighting with the police?
"0. M.: Doctor, please I want air, I am dying.
"Chavez: OK, OK. I want to know if you pointed the gun [to
yourself] at the police.
"0. M.: Yes.
"Chavez: Yes, and you pointed it [to yourself]? (sic) at the
police pointed the gun? (sic) Huh?
"0. M.: I am dying, please ...
"Chavez: OK, listen, listen I want to know what happened,
ok??
"0. M.: I want them to treat me.
"Chavez: OK, they are do it (sic), look when you took out the
gun from the tape (sic) of the police ...
"0. M.: I am dying ...
"Chavez: Ok, look, what I want to know if you took out (sic) the
gun of the police?
"0. M.: I am not telling you anything until they treat me.
"Chavez: Look, tell me what happened, I want to know, look well
don't you want the police know (sic) what happened with you?
786
Opinion of STEVENS, J.
"0. M.: Uuuggghhh! my belly hurts ...
"Chavez: Nothing, why did you run (sic) from the police? "0. M.:
I don't want to say anything anymore.
"Chavez: No?
"0. M.: I want them to treat me, it hurts a lot, please.
"Chavez: You don't want to tell (sic) what happened
with you over there?
"0. M.: I don't want to die, I don't want to die. "Chavez: Well
if you are going to die tell me what hap-
pened, and right now you think you are going to die? "0. M.:
No.
"Chavez: No, do you think you are going to die? "0. M.: Aren't
you going to treat me or what?
"Chavez: Look, think you are going to die, (sic) that's all I
want to know, if you think you are going to die? Right now, do you
think you are going to die?
"0. M.: My belly hurts, please treat me.
"Chavez: Sir?
"0. M.: If you treat me I tell you everything, if not, no.
"Chavez: Sir, I want to know if you think you are going
to die right now? "0. M.: I think so.
"Chavez: You think (sic) so? Ok. Look, the doctors are going to
help you with all they can do, Ok? That they can do.
"0. M.: Get moving, I am dying, can't you see me? come on.
"Chavez: Ah, huh, right now they are giving you medi-
cation." App. 8-22.
The sound recording of this interrogation, which has been lodged
with the Court, vividly demonstrates that respondent was suffering
severe pain and mental anguish throughout petitioner's persistent
questioning.
787
II
The Due Process Clause of the Fourteenth Amendment protects
individuals against state action that either" 'shocks the
conscience,'
Rochin v.
California, 342 U. S. 165, 172
(1952), or interferes with rights 'implicit in the concept of
ordered liberty,'
Palko v.
Connecticut, 302 U. S. 319, 325-326
(1937)." United States v.
Salerno, 481 U. S. 739, 746
(1987). In
Palko, the majority of the Court refused to hold
that every violation of the Fifth Amendment satisfied the second
standard. In a host of other cases, however, the Court has held
that unusually coercive police interrogation procedures do violate
that standard.1
IJUSTICE O'CONNOR listed many of these cases, as well as cases
from state courts, in
Oregon v.
Elstad, 470 U. S. 298, 312-313,
n. 3 (1985):
"Darwin v.
Connecticut, 391 U. S. 346 (1968)
(suspect interrogated for 48 hours incommunicado while officers
denied access to counsel);
Beecher v.
Alabama,
389 U. S. 35, 36
(1967) (officer fired rifle next to suspect's ear and said 'If you
don't tell the truth I am going to kill you');
Clewis v.
Texas, 386 U.
S. 707 (1967) (suspect was arrested without probable cause,
interrogated for nine days with little food or sleep, and gave
three unwarned 'confessions' each of which he immediately
retracted);
Reck v.
Pate, 367 U. S. 433, 439-440, n.
3 (1961) (mentally retarded youth interrogated incommunicado for a
week 'during which time he was frequently ill, fainted several
times, vomited blood on the floor of the police station and was
twice taken to the hospital on a stretcher') ....
Cagle v.
State, 45 Ala. App. 3, 4, 221 So. 2d 119, 120 (1969) (police
interrogated wounded suspect at police station for one hour before
obtaining statement, took him to hospital to have his severe wounds
treated, only then giving the
Miranda warnings; suspect
prefaced second statement with 'I have already give the Chief a
statement and I might as well give one to you, too'), cert. denied,
284 Ala. 727, 221 So. 2d 121 (1969);
People v.
Saiz,
620 P. 2d 15 (Colo. 1980) (two hours' unwarned custodial
interrogation of 16-year-old in violation of state law requiring
parent's presence, culminating in visit to scene of crime);
People v.
Bodner, 75 App. Div. 2d 440, 430 N. Y. S.
2d 433 (1980) (confrontation at police station and at scene of
crime between police and retarded youth with mental age of eight or
nine);
State v.
Badger, 141 Vt. 430, 441, 450 A. 2d
336, 343 (1982) (unwarned 'close and intense' station house
questioning of 15-year-old, including threats and promises,
resulted
788
Opinion of STEVENS, J.
By its terms, the Fifth Amendment itself has no application to
the States. It is, however, one source of the protections against
state actions that deprive individuals of rights "implicit in the
concept of ordered liberty" that the Fourteenth Amendment
guarantees. Indeed, as I pointed out in my dissent in
Oregon
v.
Elstad, 470
U. S. 298, 371 (1985), it is the most specific provision in the
Bill of Rights "that protects all citizens from the kind of
custodial interrogation that was once employed by the Star Chamber,
by 'the Germans of the 1930's and early 1940's,' and by some of our
own police departments only a few decades ago." 2 Whenever it
occurs, as it did here, official interrogation of that character is
a classic example of a violation of a constitutional right
"implicit in the concept of ordered liberty." 3
in confession at 1:20 a.m.; court held '[w]arnings ... were
insufficient to cure such blatant abuse or compensate for the
coercion in this case')."
2 Adding to the cases cited by JUSTICE O'CONNOR, I appended this
footnote: "See,
e. g., Leyra v.
Denno, 347 U. S. 556 (1954);
Malinski v.
New York, 324 U. S. 401 (1945);
Ashcraft v.
Tennessee, 322 U. S. 143 (1944);
Ward v.
Texas, 316 U. S. 547 (1942);
Vernon v.
Alabama, 313 U. S. 547
(1941); White
v.
Texas, 310
U. S. 530 (1940);
Canty v.
Alabama, 309 U. S. 629
(1940);
Chambers v.
Florida, 309 U. S. 227 (1940);
Brown v.
Mississippi, 297 U. S. 278 (1936);
Wakat v.
Harlib, 253 F.2d
59 (CA7 1958);
People v.
La Frana, 4 Ill.
2d 261, 122 N. E. 2d 583 (1954); cf.
People v.
Portelli, 15 N. Y. 2d 235, 205 N. E. 2d 857 (1965)
(potential witness tortured by police). Such custodial
interrogation is, of course, closer to that employed by the Soviet
Union than that which our constitutional scheme tolerates. See
Coleman v.
Alabama, 399 U. S. 1,15-16 (1970)
(opinion of Douglas, J.) ('In [Russia] detention
incommunicado is the common practice, and the period of
permissible detention now extends for nine months. Where there is
custodial interrogation, it is clear that the critical stage of the
trial takes place long before the courtroom formalities commence.
That is apparent to one who attends criminal trials in Russia.
Those that I viewed never put in issue the question of guilt; guilt
was an issue resolved in the inner precincts of a prison under
questioning by the police')."
Id., at 371-372, n. 19
(dissenting opinion).
3 A person's constitutional right to remain silent is an
interest in liberty that is protected against federal impairment by
the Fifth Amendment and from state impairment by the Due Process
Clause of the Fourteenth
789
I respectfully dissent, but for the reasons articulated by
JUSTICE KENNEDY,
post, at 799, concur in Part II of JUSTICE
SOUTER'S opinion.
JUSTICE KENNEDY, with whom JUSTICE STEVENS joins, and with whom
JUSTICE GINSBURG joins as to Parts II and III, concurring in part
and dissenting in part.
A single police interrogation now presents us with two issues:
first, whether failure to give a required warning under
Miranda v.
Arizona, 384 U. S. 436 (1966), was
itself a completed constitutional violation actionable under 42 U.
S. C. § 1983; and second, whether an actionable violation arose at
once under the Self-Incrimination Clause (applicable to the States
through the Fourteenth Amendment) when the police, after failing to
warn, used severe compulsion or extraordinary pressure in an
attempt to elicit a statement or confession.
I agree with JUSTICE THOMAS that failure to give a
Miranda warning does not, without more, establish a
completed violation when the unwarned interrogation ensues. As to
the second aspect of the case, which does not involve the simple
failure to give a
Miranda warning, it is my respectful
submission that JUSTICE SOUTER and JUSTICE THOMAS are incorrect.
They conclude that a violation of the SelfIncrimination Clause does
not arise until a privileged statement is introduced at some later
criminal proceeding.
A constitutional right is traduced the moment torture or its
close equivalents are brought to bear. Constitutional
Amendment. JUSTICE THOMAS' opinion is fundamentally flawed in
two respects. It incorrectly assumes that the claim it rejects is
not a due process claim,
ante, at 772-773, and it
incorrectly assumes that coercive interrogation is not
unconstitutional when it occurs because it merely violates a
judge-made "prophylactic" rule. But the violation in this case is
far more serious than a mere failure to advise respondent of his
Miranda rights; moreover, the Court disavowed the
"prophylactic" characterization of
Miranda in
Dickerson v.
United States, 530 U. S. 428, 437-439
(2000).
790
Opinion of KENNEDY, J.
protection for a tortured suspect is not held in abeyance until
some later criminal proceeding takes place. These are the premises
of this separate opinion.
I
The
Miranda warning, as is now well settled, is a
constitutional requirement adopted to reduce the risk of a coerced
confession and to implement the Self-Incrimination Clause.
Dickerson v.
United States, 530 U. S. 428, 444
(2000);
Miranda v.
Arizona, supra, at 467.
Miranda mandates a rule of exclusion. It must be so
characterized, for it has significant exceptions that can only be
assessed and determined in the course of trial. Unwarned custodial
interrogation does not in every instance violate
Miranda.
See,
e. g., New York v.
Quarles, 467 U. S. 649 (1984)
(statement admissible if questioning was immediately necessary for
public safety). Furthermore, statements secured in violation of
Miranda are admissible in some instances. See,
e. g.,
Harris v.
New York, 401 U. S. 222 (1971)
(statement admissible for purposes of impeachment). The
identification of a
Miranda violation and its consequences,
then, ought to be determined at trial. The exclusion of unwarned
statements, when not within an exception, is a complete and
sufficient remedy.
II
JUSTICE SOUTER and JUSTICE THOMAS are wrong, in my view, to
maintain that in all instances a violation of the SelfIncrimination
Clause simply does not occur unless and until a statement is
introduced at trial, no matter how severe the pain or how direct
and commanding the official compulsion used to extract it.
It must be remembered that the Self-Incrimination Clause of the
Fifth Amendment is applicable to the States in its full text
through the Due Process Clause of the Fourteenth Amendment.
Malloy v.
Hogan, 378 U. S. 1, 6 (1964);
Griffin v.
California, 380 U. S. 609, 615
(1965). The question is the
791
proper interpretation of the Self-Incrimination Clause in the
context of the present dispute.
Our cases and our legal tradition establish that the
SelfIncrimination Clause is a substantive constraint on the conduct
of the government, not merely an evidentiary rule governing the
work of the courts. The Clause must provide more than mere
assurance that a compelled statement will not be introduced against
its declarant in a criminal trial. Otherwise there will be too
little protection against the compulsion the Clause prohibits. The
Clause protects an individual from being forced to give answers
demanded by an official in any context when the answers might give
rise to criminal liability in the future. "It can be asserted in
any proceeding, civil or criminal, administrative or judicial,
investigatory or adjudicatory; and it protects against any
disclosures that the witness reasonably believes could be used in a
criminal prosecution or could lead to other evidence that might be
so used."
Kastigar v.
United States, 406 U. S. 441, 444-445
(1972) (footnotes omitted). The decision in
Kastigar
described the Self-Incrimination Clause as an exemption from the
testimonial duty.
Ibid. As the duty is immediate, so must be
the privilege. Furthermore, the exercise of the privilege depends
on what the witness reasonably believes will be the future use of a
statement.
Id., at 445. Again, this indicates the existence
of a present right.
The Clause provides both assurance that a person will not be
compelled to testify against himself in a criminal proceeding and a
continuing right against government conduct intended to bring about
self-incrimination.
Lefkowitz v.
Turley,
414 U. S. 70, 77 (1973)
("The Amendment not only protects the individual against being
involuntarily called as a witness against himself in a criminal
prosecution but also privileges him not to answer official
questions put to him in any other proceeding, civil or criminal,
formal or informal, where the answers might incriminate him in
future criminal proceedings"); accord,
Bram v.
United
States, 168 U. S.
532,
792
Opinion of KENNEDY, J.
542-543 (1897);
Counselman v.
Hitchcock, 142 U. S. 547, 562
(1892). The principle extends to forbid policies which exert
official compulsion that might induce a person into forfeiting his
rights under the Clause.
Lefkowitz v.
Cunningham,
431 U. S. 801,
806 (1977) ("These cases settle that government cannot penalize
assertion of the constitutional privilege against compelled
self-incrimination by imposing sanctions to compel testimony which
has not been immunized"); accord,
Uniformed Sanitation Men
Assn., Inc. v.
Commissioner of Sanitation of City of New
York, 392 U. S.
280 (1968);
Gardner v.
Broderick, 392 U. S. 273, 279
(1968). JUSTICE SOUTER and JUSTICE THOMAS acknowledge a future
privilege.
Ante, at 777-778;
ante, at 769. That does
not end the matter. A future privilege does not negate a present
right.
Their position finds some support in a single statement in
United States v.
Verdugo-Urquidez, 494 U. S. 259, 264 (1990)
("Although conduct by law enforcement officials prior to trial may
ultimately impair that right [against compelled selfincrimination],
a constitutional violation occurs only at trial"). That case
concerned the application of the Fourth Amendment, and the extent
of the right secured under the Self- Incrimination Clause was not
then before the Court.
Ibid. Furthermore,
Verdugo-Urquidez involved a prosecution in the United States
arising from a criminal investigation in another country,
id., at 274-275, so there was a special reason for the Court
to be concerned about the application of the Clause in that
context,
id., at 269 (noting the Court had "rejected the
claim that aliens are entitled to Fifth Amendment rights outside
the sovereign territory of the United States" (citing
Johnson v.
Eisentrager, 339 U. S. 763 (1950))).
In any event, the decision cannot be read to support the
proposition that the application of the Clause is limited in the
way JUSTICE SOUTER and JUSTICE THOMAS describe today.
A recent case illustrates that a violation of the
SelfIncrimination Clause may have immediate consequences.
793
Just last Term, nine Justices all proceeded from the premise
that a present, completed violation of the Self-Incrimination
Clause could occur if an incarcerated prisoner were required to
admit to past crimes on pain of forfeiting certain privileges or
being assigned harsher conditions of confinement.
McKune v.
Lile, 536 U. S.
24 (2002);
id., at 48 (O'CONNOR, J., concurring in
judgment);
id., at 54 (STEVENS, J., dissenting). Although
there was disagreement over whether a violation occurred in the
circumstances of that case, there was no disagreement that a
present violation could have taken place. No Member of the Court
suggested that the absence of a pending criminal proceeding made
the Self-Incrimination Clause inquiry irrelevant.
This is not to say all questions as to the meaning and extent of
the Clause are simple of resolution, or that all of the cited cases
are easy to reconcile. Many questions about the application of the
Self-Incrimination Clause are close and difficult. There are
instances, moreover, when incriminating statements can be required
from a reluctant witness, see,
e. g., Gardner, supra, at
276, and others where information may be required even absent a
promise of immunity, see,
e. g., Shapiro v.
United
States, 335 U. S.
1, 19 (1948). JusTICE SOUTER and JUSTICE THOMAS are correct to
note that testimony may be ordered, on pain of contempt, if
appropriate immunity is granted. It does not follow that the Clause
establishes no present right. The immunity rule simply shows that
the right is not absolute.
The conclusion that the Self-Incrimination Clause is not
violated until the government seeks to use a statement in some
later criminal proceeding strips the Clause of an essential part of
its force and meaning. This is no small matter. It should come as
an unwelcome surprise to judges, attorneys, and the citizenry as a
whole that if a legislative committee or a judge in a civil case
demands incriminating testimony without offering immunity, and even
imposes sanctions for failure to comply, that the witness and
counsel can-
794
Opinion of KENNEDY, J.
not insist the right against compelled self-incrimination is
applicable then and there. JUSTICE SOUTER and JUSTICE THOMAS, I
submit, should be more respectful of the understanding that has
prevailed for generations now. To tell our whole legal system that
when conducting a criminal investigation police officials can use
severe compulsion or even torture with no present violation of the
right against compelled self-incrimination can only diminish a
celebrated provision in the Bill of Rights. A Constitution survives
over time because the people share a common, historic commitment to
certain simple but fundamental principles which preserve their
freedom. Today's decision undermines one of those respected
precepts.
Dean Griswold explained the place the Self-Incrimination
Clause has secured in our legal heritage:
"The Fifth Amendment has been very nearly a lone sure rock in a
time of storm. It has been one thing which has held quite firm,
although something like a juggernaut has pushed upon it. It has,
thus, through all its vicissitudes, been a symbol of the ultimate
moral sense of the community, upholding the best in us, when
otherwise there was a good deal of wavering under the pressures of
the times." E. Griswold, The Fifth Amendment Today 73 (1955).
It damages the law, and the vocabulary with which we impart our
legal tradition from one generation to the next, to downgrade our
understanding of what the Fifth Amendment requires.
There is some authority, it must be acknowledged, for the
proposition that the act of torturing to obtain a confession is not
comprehended within the Self-Incrimination Clause itself. In
Brown v.
Mississippi, 297 U. S. 278 (1936), the
Court held that convictions based upon tortured confessions could
not stand, but it identified the Due Process Clause, and not the
Self-Incrimination Clause, as the source for its ruling.
795
Id., at 285. The Court interpreted the Self-Incrimination
Clause as limited to "the processes of justice by which the accused
may be called as a witness and required to testify. Compulsion by
torture to extort a confession is a different matter."
Ibid.
The decision in
Brown antedated the incorporation of the
Clause and the ensuing understanding of its fundamental role in our
legal system.
The views expressed by JUSTICE SOUTER and JUSTICE THOMAS also
have some academic support. Professor McNaughton, in his revision
of Professor Wigmore's treatise on the law of evidence, recites
various rationales for the SelfIncrimination Clause, declaring all
of them insufficient. 8 J. Wigmore, Evidence §2251 (J. McNaughton
rev. ed. 1961). The 11th justification he discusses is the
prevention of torture,
id., at 315, a practice Professor
McNaughton simply assures us will not be revived,
ibid.
This is not convincing. The Constitution is based upon the
theory that when past abuses are forbidden the resulting right has
present meaning. A police officer's interrogation is different in a
formal sense from interrogation ordered by an official inquest, but
the close relation between the two ought not to be so quickly
discounted. Even if some think the abuses of the Star Chamber
cannot revive, the specter of Sheriff Screws, see
Screws v.
United States, 325 U. S. 91 (1945), or of
the deputies who beat the confessions out of the defendants in
Brown v.
Mississippi, is not so easily banished. See
Oregon v.
Elstad, 470 U. S. 298, 312, n. 3
(1985);
id., at 371-372, n. 19 (STEVENS, J.,
dissenting).
III
In my view the Self-Incrimination Clause is applicable at the
time and place police use compulsion to extract a statement from a
suspect. The Clause forbids that conduct. A majority of the Court
has now concluded otherwise, but that should not end this case. It
simply implicates the larger definition of liberty under the Due
Process Clause of the
796
Opinion of KENNEDY, J.
Fourteenth Amendment.
Dickerson, 530 U. S., at 433 ("Over
time, our cases recognized two constitutional bases for the
requirement that a confession be voluntary to be admitted into
evidence: the Fifth Amendment right against self-incrimination and
the Due Process Clause of the Fourteenth Amendment"). Turning to
this essential, but less specific, guarantee, it seems to me a
simple enough matter to say that use of torture or its equivalent
in an attempt to induce a statement violates an individual's
fundamental right to liberty of the person.
Brown, supra, at
285;
Palko v.
Connecticut, 302 U. S. 319 (1937); see
also
Rochin v.
California, 342 U. S. 165 (1952). The
Constitution does not countenance the official imposition of severe
pain or pressure for purposes of interrogation. This is true
whether the protection is found in the Self-Incrimination Clause,
the broader guarantees of the Due Process Clause, or both.
That brings us to the interrogation in this case. Had the
officer inflicted the initial injuries sustained by Martinez (the
gunshot wounds) for purposes of extracting a statement, there would
be a clear and immediate violation of the Constitution, and no
further inquiry would be needed. That is not what happened,
however. The initial injuries and anguish suffered by the suspect
were not inflicted to aid the interrogation. The wounds arose from
events preceding it. True, police officers had caused the injuries,
but they had not done so to compel a statement or with the purpose
of facilitating some later interrogation. The case can be analyzed,
then, as if the wounds had been inflicted by some third person, and
the officer came to the hospital to interrogate.
There is no rule against interrogating suspects who are in
anguish and pain. The police may have legitimate reasons, borne of
exigency, to question a person who is suffering or in distress.
Locating the victim of a kidnaping, ascertaining the whereabouts of
a dangerous assailant or accomplice, or determining whether there
is a rogue police officer at large are some examples. That a
suspect is in fear of dying, fur-
797
thermore, may not show compulsion but just the opposite. The
fear may be a motivating factor to volunteer information. The words
of a declarant who believes his death is imminent have a special
status in the law of evidence. See,
e. g.,
Mattox v.
United States, 146 U. S. 140, 152 (1892)
("The admission of the testimony is justified upon the ground of
necessity, and in view of the consideration that the certain
expectation of almost immediate death will remove all temptation to
falsehood, and enforce as strict adherence to the truth as the
obligation of an oath could impose"); see also Fed. Rule Evid.
804(b)(2) (providing an exception from the hearsay rule for certain
statements uttered under belief of impending death). A declarant in
Martinez's circumstances may want to tell his story even if it
increases his pain and agony to do so. The Constitution does not
forbid the police from offering a person an opportunity to
volunteer evidence he wishes to reveal.
There are, however, actions police may not take if the
prohibition against the use of coercion to elicit a statement is to
be respected. The police may not prolong or increase a suspect's
suffering against the suspect's will. That conduct would render
government officials accountable for the increased pain. The
officers must not give the impression that severe pain will be
alleviated only if the declarant cooperates, for that, too, uses
pain to extract a statement. In a case like this one, recovery
should be available under § 1983 if a complainant can demonstrate
that an officer exploited his pain and suffering with the purpose
and intent of securing an incriminating statement. That showing has
been made here.
The transcript of the interrogation set out by JUSTICE STEVENS,
ante, at 784-786 (opinion concurring in part and dissenting
in part), and other evidence considered by the District Court
demonstrate that the suspect thought his treatment would be
delayed, and thus his pain and condition worsened, by refusal to
answer questions.
798
Opinion of KENNEDY, J.
It is true that the interrogation was not continuous. Ten
minutes of questions and answers were spread over a 45minute
interval. App. to Pet. for Cert. 27a. Treatment was apparently
administered during those interruptions. The pauses in the
interrogation, however, do not indicate any error in the trial
court's findings and conclusions.
The District Court found that Martinez "had been shot in the
face, both eyes were injured; he was screaming in pain, and coming
in and out of consciousness while being repeatedly questioned about
details of the encounter with the police."
Id., at 22a. His
blinding facial wounds made it impossible for him visually to
distinguish the interrogating officer from the attending medical
personnel. The officer made no effort to dispel the perception that
medical treatment was being withheld until Martinez answered the
questions put to him. There was no attempt through
Miranda
warnings or other assurances to advise the suspect that his
cooperation should be voluntary. Martinez begged the officer to
desist and provide treatment for his wounds, but the questioning
persisted despite these pleas and despite Martinez's unequivocal
refusal to answer questions. Cf.
Mincey v.
Arizona,
437 U. S. 385,
398 (1978) (Court said of similar circumstances: "It is hard to
imagine a situation less conducive to the exercise of a rational
intellect and a free will" (internal quotation marks omitted)).
The standards governing the interrogation of suspects and
witnesses who suffer severe pain must accommodate the exigencies
that law enforcement personnel encounter in circumstances like this
case. It is clear enough, however, that the police should take the
necessary steps to ensure that there is neither the fact nor the
perception that the declarant's pain is being used to induce the
statement against his will. In this case no reasonable police
officer would believe that the law permitted him to prolong or
increase pain to obtain a statement. The record supports the
ultimate finding that
799
the officer acted with the intent of exploiting Martinez's
condition for purposes of extracting a statement.
Accordingly, I would affirm the decision of the Court of Appeals
that a cause of action under § 1983 has been stated. The other
opinions filed today, however, reach different conclusions as to
the correct disposition of the case. Were JusTICE STEVENS, JUSTICE
GINSBURG, and I to adhere to our position, there would be no
controlling judgment of the Court. In these circumstances, and
because a ruling on substantive due process in this case could
provide much of the essential protection the Self-Incrimination
Clause secures, I join Part II of JUSTICE SOUTER'S opinion and
would remand the case for further consideration.
JUSTICE GINSBURG, concurring in part and dissenting in part.
I join Parts II and III of JUSTICE KENNEDY'S opinion.
For reasons well stated therein, I would hold that the
SelfIncrimination Clause applies at the time and place police use
severe compulsion to extract a statement from a suspect. See
ante, at 790-798 and this page (opinion concurring in part
and dissenting in part). The evidence in this case, as JUSTICE
KENNEDY explains, supports the conclusion "that the suspect thought
his treatment would be delayed, and thus his pain and condition
worsened, by refusal to answer questions."
Ante, at 797. I
write separately to state my view that, even if no finding were
made concerning Martinez's belief that refusal to answer would
delay his treatment, or Chavez's intent to create such an
impression, the interrogation in this case would remain a clear
instance of the kind of compulsion no reasonable officer would have
thought constitutionally permissible.
In
Mincey v.
Arizona, 437 U. S. 385 (1978),
appropriately referenced by JUSTICE KENNEDY, see
ante, at
798, this Court held involuntary certain statements made during an
in-
800
Opinion of GINSBURG, J.
hospital police interrogation. 1 The suspect questioned in
Mincey had been "seriously wounded just a few hours
earlier," and "[a]lthough he had received some treatment, his
condition at the time of [the] interrogation was still sufficiently
serious that he was in the intensive care unit." 437 U. S., at 398.
He was interrogated while "lying on his back on a hospital bed,
encumbered by tubes, needles, and breathing apparatus."
Id.,
at 399. Despite the suspect's clear and repeated indications that
he did not want to talk, the officer persisted in questioning him
as he drifted in and out of consciousness. The Court thought it
"apparent" in these circumstances that the suspect's statements
"were not the product of his free and rational choice."
Id.,
at 401 (internal quotation marks omitted).
Martinez's interrogation strikingly resembles the hospitalbed
questioning in
Mincey. Like the suspect in
Mincey,
Martinez was "at the complete mercy of [his interrogator], unable
to escape or resist the thrust of [the] interrogation."
Id.,
at 399 (internal quotation marks omitted). As JUSTICE KENNEDY
notes, Martinez "had been shot in the face, both eyes were injured;
he was screaming in pain, and coming in and out of consciousness
while being repeatedly questioned about details of the encounter
with the police."
Ante, at 798 (quoting
Martinez v.
Oxnard, CV 98-9313
(CD Cal., July 31, 2000), p. 7,
App. to Pet. for Cert. 22a). "In this debilitated and helpless
condition, [Martinez] clearly expressed his wish not to be
interrogated."
Mincey, 437 U. S., at 399. Chavez nonetheless
continued to question him, "ceas[ing] the interrogation only during
intervals when [Martinez] lost consciousness or received medical
treatment."
Id., at 40l. Martinez was "weakened by pain and
shock"; "barely conscious, ... his will was simply overborne."
Id., at 401-402.
1 While
Mincey concerned admissibility under the Due
Process Clause of the Fourteenth Amendment, its analysis of the
coercive nature of the interrogation is nonetheless instructive in
this case. See
Dickerson v.
United States, 530 U. S. 428, 433-434
(2000).
801
Thus, whatever Martinez might have thought about Chavez's
interference with his treatment, I would agree with the District
Court that "the totality of the circumstances in this case"
establishes "that [Martinez's] statement was not voluntarily
given." CV 98-9313, at 7, App. to Pet. for Cert. 22a; accord,
Martinez v.
Oxnard, 270 F.3d
852, 857
(CA9 2001). It is indeed "hard to imagine a
situation less conducive to the exercise of a rational intellect
and a free will."
Ante, at 798 (KENNEDY, J., concurring in
part and dissenting in part) (quoting
Mincey, 437 U. S., at
398); see
ante, at 783 (STEVENS, J., concurring in part and
dissenting in part) (characterizing Martinez's interrogation as
"the functional equivalent of an attempt to obtain an involuntary
confession from a prisoner by torturous methods"); cf. 4 J.
Wigmore, Evidence § 2251, p. 827 (1923) (noting about police
interrogations common-law jurisprudence seeks to ward off: "It is
far pleasanter to sit comfortably in the shade rubbing red pepper
into a poor devil's eyes than to go about in the sun hunting up
evidence." (emphasis deleted and internal quotation marks
omitted)).2
In common with the Due Process Clause, the privilege against
self-incrimination safeguards "the freedom of the individual from
the arbitrary power of governmental authorities." E. Griswold, The
Fifth Amendment Today 51 (1955). Closely connected "with the
struggle to eliminate torture as a governmental practice,"
id., at 3, the privilege is rightly regarded as "one of the
great landmarks in man's struggle to make himself civilized,"
id., at 7. Its core idea is captured in the Latin maxim,
"Nemo tenetur prodere se ipsum," in
2 There was an eyewitness, local farm worker Eluterio Flores, to
the encounter between the police and Martinez. See Brief for
Respondent 1; Defendants' Opposition to Plaintiff's Motion for
Summary Adjudication of Issues, in Record for No. CV 98-9313 (CD
Cal.), p. 3;
id., at App. E (transcript of videotaped
deposition of Eluterio Flores). The record does not reveal the
extent to which the police interrogated Flores about the
encounter.
802
Opinion of GINSBURG, J.
English, "No one should be required to accuse himself."
Id., at 2. As an "expression of our view of civilized
governmental conduct,"
id., at 9, the privilege should
instruct and control all of officialdom, the police no less than
the prosecutor.
Convinced that Chavez's conduct violated Martinez's right to be
spared from self-incriminating interrogation, I would affirm the
judgment of the Court of Appeals. To assure a controlling judgment
of the Court, however, see
ante, at 799 (KENNEDY, J.,
concurring in part and dissenting in part), I join Part II of
JUSTICE SOUTER'S opinion.
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