Terrorism, Miranda, and Related Matters

Charles Doyle
Senior Specialist in American Public Law

The Fifth Amendment to the United States Constitution provides in part that "No person ... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." In Miranda v. Arizona, the Supreme Court declared that statements of an accused, given during a custodial interrogation, could not be introduced in evidence in criminal proceedings against him, unless he were first advised of his rights and waived them. In Dickerson v. United States, the Court held that the Miranda exclusionary rule was constitutionally grounded and could not be replaced by a statutory provision making all voluntary confessions admissible. In New York v. Quarles, the Court recognized a "limited" "public safety" exception to Miranda, but has not defined the exception further. The lower federal courts have construed the exception narrowly in cases involving unwarned statements concerning the location of a weapon possibly at hand at the time of an arrest. 

The Supreme Court has yet to decide to what extent Miranda applies to custodial interrogations conducted overseas. The lower federal courts have held that the failure of foreign law enforcement officials to provide Miranda warnings prior to interrogation does not preclude use of any resulting statement in a subsequent U.S. criminal trial, unless interrogation was a joint venture of U.S. and foreign officials or unless the circumstances shock the conscience of the court. They suggest that warnings are a prerequisite for admissibility in U.S. courts following overseas interrogation by U.S. officials. 

Miranda applies to courts-martial that are subject to a requirement for an additional warning under the Uniform Code of Military Justice. The statutory provisions governing military commissions call for the admission of some unwarned, involuntary custodial statements. At least one tribunal operating under those provisions has concluded that the Fifth Amendment protections do not apply in the commission trial at Guantanamo Bay of an unprivileged foreign belligerent. 

Rule 5 of the Federal Rules of Criminal Procedure requires that federal arrestees be brought before a committing magistrate without unnecessary delay. In the McNabb v. United States and Mallory v. United States cases, the Court declared inadmissible confessions extracted during a period of unnecessary delay. The cases were decided under the Court's supervisory authority over the lower federal courts, and in Corley v. United States, the Court held that McNabb-Mallory had been statutorily supplemented with a provision that made admissible voluntary confession given within six hours of presentment. 

Neither Miranda nor McNabb-Mallory violations preclude the subsequent prosecution of the accused; they simply preclude the uninvited use of any unwarned, unwaived statements in such prosecutions. 

Related legislative proposals have been introduced in the 111th Congress. P.L. 111-84 (H.R. 2647) prohibits members of the military from providing Miranda warnings to foreign nationals captured, or held in Defense Department custody, outside the United States as enemy belligerents. Among the legislative proposals yet to secure enactment, one would prohibit the use of funds to provide such warnings (H.R. 2701); others would restrict their use in the interrogation of highvalue detainees overseas (S. 3081 and H.R. 4892); and still others would call upon the Administration to provide Congress with information related to the use of Miranda warnings in such circumstances (H.R. 3170, H.Res. 537, H.Res. 570, H.Res. 602).


Date of Report: May 24, 2010
Number of Pages: 13
Order Number: R41252
Price: $29.95

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