In The

Supreme Court of the United States




Decided June 26, 1989

Justice O’Connor, Concurring

Topic: Criminal Procedure*Court vote: 5–4
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Joining O'Connor opinion: Justice SCALIA Justice SCALIA
Citation: 492 U.S. 195 Docket: 88–317Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, concurring.

I concur in THE CHIEF JUSTICE's opinion for the Court. I write separately to address an alternative ground for decision in this case which was raised, but not relied upon, by the District Court. In my view, the rationale of our decision in Stone v. Powell, 428 U. S. 465 (1976), dictates that the suppression remedy be unavailable to respondent on federal habeas.

Over seven years ago, respondent stabbed a woman nine times after she refused to have sexual relations with him. Claiming that he had innocently discovered the body, respondent led Chicago police to the woman, who, upon seeing respondent, immediately identified him as her assailant. Respondent was twice informed of his rights and questioned by detectives. The first time, he gave an exculpatory statement indicating that he had been attacked by the same persons who had assaulted the victim. In the second interview, respondent confessed to the stabbing. He then led police to the knife he had used and to several items of his clothing which were found near the scene of the assault. Respondent sought suppression of both his statements and the knife and clothing on the ground that the warnings he was given were inadequate under Miranda v. Arizona, 384 U. S. 436 (1966). After an evidentiary hearing, the trial court denied the motion to suppress. The evidence was admitted at trial, and respondent was convicted of attempted murder and sentenced to 35 years' imprisonment. On appeal, the Indiana Supreme Court rejected respondent's claim that the warnings given him during his first encounter with the police were insufficient under Miranda. Eagan v. State, 480 N.E.2d 946, 949-950 (1985). The Indiana Supreme Court also noted that there was no evidence that respondent's two statements were the product of police coercion or overbearing. Id. at 950.

In 1986, respondent filed this petition for federal habeas corpus under 28 U.S.C. § 2254. He raised the same Miranda claim which had been fully litigated in, and rejected by, the state courts. The District Court noted the possibility that respondent's claim might not be cognizable on federal habeas under our decision in Stone v. Powell, but indicated that "[f]or present purposes, that issue remains to be solved by the Supreme Court or this Circuit." App. to Pet. for Cert. A-50. The District Court found no evidence of "coercive conduct" on the part of the police in this case, and denied the petition. Id. at A-52 A-53. A divided panel of the Court of Appeals for the Seventh Circuit reversed, finding that a technical violation of the Miranda rule had occurred and remanding the case to the District Court for a further evidentiary hearing to determine whether respondent's second statement was "tainted" by the allegedly inadequate warnings given in the first encounter. 843 F.2d 1554, 1557 (1988). This Court now reverses. Eighteen state and federal judges have now given plenary consideration to respondent's Miranda claims. None of these judges has intimated any doubt as to respondent's guilt or the voluntariness and probative value of his confession. After seven years of litigation, the initial determination of the Miranda issue by the state trial judge and the Indiana Supreme Court has been found to be the correct one. In my view, the federal courts' exercise of habeas jurisdiction in this case has served no one: no violation of the Fifth Amendment itself has ever been alleged; there is no doubt that respondent is guilty of the crime of which he was convicted, and deserving of punishment; respondent had a full and fair opportunity to litigate his claim in state court; and the marginal possibility that police adherence to Miranda will be enhanced by suppression of highly probative evidence some seven years after the police conduct at issue in this case is far outweighed by the harm to society's interest in punishing and incapacitating those who violate its criminal laws.


In Stone v. Powell, this Court held that claims that probative evidence should have been excluded at trial because of police conduct alleged to have violated the Fourth Amendment would not be entertained in a federal habeas proceeding where a full and fair opportunity to litigate the claim had been made available in the state courts. The Stone Court noted that the exclusionary rule " is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.'" 428 U.S. at 428 U. S. 486, quoting United States v. Calandra, 414 U. S. 338, 414 U. S. 348 (1974). The costs of such a rule are high: highly probative and often conclusive evidence of a criminal defendant's guilt is withheld from the trier of fact in the hope of

encourag[ing] those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system.

Stone, supra, at 428 U. S. 492. The exclusionary rule is a structural device designed to promote sensitivity to constitutional values through its deterrent effect. As such, the rule's utility must, as this Court has long recognized, be weighed against other important values in its application. Where the rule's deterrent effect is likely to be marginal, or where its application offends other values central to our system of constitutional governance or the judicial process, we have declined to extend the rule to that context. See, e.g., United States v. Leon, 468 U. S. 897, 468 U. S. 920 -921 (1984) (refusing to apply exclusionary rule where police rely in good faith on a warrant issued by a neutral magistrate); Calandra, supra, at 414 U. S. 349 (refusing to extend the rule to grand jury proceedings because its application "would seriously impede the grand jury"); Walder v. United States, 347 U. S. 62, 347 U. S. 65 (1954) (exclusionary rule does not create "a shield against contradiction of [the defendant's] untruths" and evidence seized in violation of the Fourth Amendment may be used for impeachment purposes).

In Stone, we found that application of the exclusionary rule to Fourth Amendment violations on federal habeas was likely to have only marginal effectiveness in deterring police misconduct, while offending important principles of federalism and finality in the criminal law which have long informed the federal courts' exercise of habeas jurisdiction. In my view, this same weighing process leads ineluctably to the conclusion that the suppression remedy should not be available on federal habeas where the state courts have accorded a petitioner a full and fair opportunity to litigate a claim that Miranda warnings were not given or were somehow deficient. Indeed, the scales appear to me to tip further toward finality and repose in this context than in Stone itself.

The Fifth Amendment guarantees that "[n]o person... shall be compelled in any criminal case to be a witness against himself." The Amendment has its roots in the Framers' belief that a system of justice in which the focus is on the extraction of proof of guilt from the criminal defendant himself is often an adjunct to tyranny, and may lead to the conviction of innocent persons. Thus, a violation of the constitutional guarantee occurs when one is "compelled" by governmental coercion to bear witness against oneself in the criminal process. See Colorado v. Connelly, 479 U. S. 157, 479 U. S. 163 -164, and n. 1 (1986); Malloy v. Hogan, 378 U. S. 1, 378 U. S. 6 -8 (1964). The suppression remedy is quite possibly contained within the guarantee of the Fifth Amendment itself.

The Miranda rule is not, nor did it ever claim to be, a dictate of the Fifth Amendment itself. The Miranda Court implicitly acknowledged as much when it indicated that procedures other than the warnings dictated by the Court's opinion might satisfy constitutional concerns, see Miranda, 384 U.S. at 384 U. S. 444, and what was implicit in the Miranda opinion itself has been made explicit in our subsequent cases. See, e.g., Oregon v. Elstad, 470 U. S. 298, 470 U. S. 306 -310 (1985) (noting that the Miranda rule "sweeps more broadly than the Fifth Amendment itself," and "may be triggered even in the absence of a Fifth Amendment violation"); accord, New York v. Quarles, 467 U. S. 649 (1984); Michigan v. Tucker, 417 U. S. 433, 417 U. S. 442 -446 (1974). Like all prophylactic rules, the Miranda rule "overprotects" the value at stake. In the name of efficient judicial administration of the Fifth Amendment guarantee and the need to create institutional respect for Fifth Amendment values, it sacrifices society's interest in uncovering evidence of crime and punishing those who violate its laws. While this balance of interests may be perfectly justified in the context of direct review of criminal convictions, in my view, the balance shifts when applied to a presumptively final criminal judgment which is collaterally attacked in a federal habeas corpus proceeding. As JUSTICE KENNEDY has recently noted:

[F]ederal habeas review itself entails significant costs. It disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.

Harris v. Reed, 489 U. S. 255, 489 U. S. 282 (1989) (KENNEDY, J., dissenting).

Indeed, within weeks after our decision in Miranda, we declined to apply that decision retroactively to state prisoners on federal habeas, noting that the Miranda rule was unrelated to the truth-seeking function of the criminal trial, and that its application on federal habeas "would require the retrial or release of numerous prisoners found guilty by trustworthy evidence." Johnson v. New Jersey, 384 U. S. 719, 384 U. S. 730 -731 (1966). As in the Fourth Amendment context addressed in Stone, we have consistently declined to extend the Miranda rule and the suppression remedy attached to it to situations where its deterrent effect is minimal, and is outweighed by other compelling interests. See, e.g., Oregon v. Hass, 420 U. S. 714, 420 U. S. 722 -723 (1975) (statements taken in violation of Miranda may be used to impeach the defendant's testimony at trial); Tucker, 417 U.S. at 417 U. S. 448 -449 (refusing to apply suppression remedy to third party testimony alleged to be the fruits of a Miranda violation); id. at 417 U. S. 461 (WHITE, J., concurring in judgment) ("The arguable benefits from excluding such testimony by way of possibly deterring police conduct that might compel admissions are, in my view, far outweighed by the advantages of having relevant and probative testimony, not obtained by actual coercion, available at criminal trials to aid in the pursuit of truth").

In my view, these principles compel the conclusion that Miranda claims seeking suppression of probative evidence are not cognizable on federal habeas. 28 U.S.C. § 2243 requires a federal habeas court to "dispose of the matter as law and justice require," and we have long recognized that,

in some circumstances, considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power.

Francis v. Henderson, 425 U. S. 536, 425 U. S. 539 (1976). Relitigation of Miranda claims offers little or no additional structural incentive to the police to abide by the dictates of that decision. The awarding of habeas relief years after conviction will often strike like lightning, and it is absurd to think that this added possibility of exclusion years after the police conduct at issue will have any appreciable effect on police training or behavior. As Judge Friendly wrote:

The mere failure to administer Miranda warnings... creates little risk of unreliability, and the deterrent value of permitting collateral attack goes beyond the point of diminishing returns.

Friendly, Is Innocence Irrelevant?, Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142, 163 (1970). On the other hand, the costs of suppression in the federal habeas setting are significantly magnified. As in this case, lower federal courts often sit in "review" of the judgments of the highest courts of a state judicial system. This situation has always been a flashpoint of tension in the delicate relationship of the federal and state courts, and this exercise of federal power should not be undertaken lightly where no significant federal values are at stake. Perhaps most troubling is the cost to society in the efficient enforcement of its criminal laws. Excluding probative evidence years after trial, when a new trial may be a practical impossibility, will often result in the release of an admittedly guilty individual who may pose a continuing threat to society. While federal courts must and do vindicate constitutional values outside the truth-seeking function of a criminal trial, where those values are unlikely to be served by the suppression remedy, the result is positively perverse. Exclusion in such a situation teaches not respect for the law, but casts the criminal system as a game and sends the message that society is so unmoved by the violation of its own laws that it is willing to frustrate their enforcement for the smallest of returns. If Stone v. Powell bars relitigation of allegations of constitutional violations on federal habeas, it seems to me clear that its rationale is directly applicable to relitigation of nonconstitutional claims under Miranda.

JUSTICE MARSHALL'S dissenting opinion accuses me of exhibiting "a profound distaste for Miranda, " post at 492 U. S. 224, in suggesting that the rationale of Stone v. Powell should be applied to Miranda claims on federal habeas review. It is not a sign of disrespect for a particular substantive rule to refuse to apply it in a situation where it does not serve the purposes for which it was designed. Our jurisprudence has long recognized a distinction between direct and collateral review, and I am not the first Justice of this Court to suggest that prophylatic rules should be treated differently in collateral proceedings than on direct review. See, e.g., Greer v. Miller, 483 U. S. 756, 483 U. S. 767 -769 (1987) (STEVENS, J., concurring) (distinguishing between direct review and collateral proceedings for purposes of application of rule of Doyle v. Ohio, 426 U. S. 610 (1976), which forbids prosecutorial comment on post-arrest silence); Brewer v. Williams, 430 U. S. 387, 430 U. S. 420 -429 (1977) (Burger, C.J., dissenting) (suggesting applicability of Stone v. Powell to Miranda claims on federal habeas); see also Rose v. Lundy, 455 U. S. 509, 455 U. S. 543 -544, and n. 8 (1982) (STEVENS, J., dissenting); Vasquez v. Hillery, 474 U. S. 254, 474 U. S. 272 -273 (1986) (Powell, J., dissenting). Indeed, in United States v. Timmreck, 441 U. S. 780 (1979), a unanimous Court concluded that a purely formal violation of Federal Rule of Criminal Procedure 11 did not justify the granting of relief in collateral proceedings despite the fact that, at the time of our decision in Timmreck, such a violation was often considered grounds for automatic reversal on direct review. See McCarthy v. United States, 394 U. S. 459 (1969). The distinction did not lie in any "profound distaste" for the dictates of Rule 11, but rather upon considerations of finality which have special force in the context of a collateral proceeding challenging a final criminal judgment. Timmreck, supra, at 441 U. S. 784.

The dissent's charges of "judicial activism," and its assertion that "Congress has determined" that collateral review of claims like those at issue in this case outweighs any interests in bringing a final resolution to the criminal process, see post at 492 U. S. 222, 492 U. S. 228, ring quite hollow indeed in the context of the federal habeas statute. The scope of federal habeas corpus jurisdiction has undergone a substantial judicial expansion, and a return to what "Congress intended" would reduce the scope of habeas jurisdiction far beyond the extension of Stone v. Powell to Miranda claims. See Kuhlmann v. Wilson, 477 U. S. 436, 477 U. S. 445 -446 (1986) (plurality opinion) ("Until the early years of this century, the substantive scope of the federal habeas corpus statutes was defined by reference to the scope of the writ at common law.... During this century, the Court gradually expanded the grounds on which habeas corpus relief was available"); see also Rose, supra, at 455 U. S. 546 -548 (STEVENS, J., dissenting); Fay v. Noia, 372 U. S. 391, 372 U. S. 445 (1963) (Clark, J., dissenting); id. at 372 U. S. 448 (Harlan, J., dissenting). As noted above, the Court has long recognized that "habeas corpus has been traditionally regarded as governed by equitable principles," Fay, supra, at 372 U. S. 438 (citation omitted), and thus has long defined the scope of the writ by reference to a balancing of state and federal interests which the dissent today condemns as "activism."

While the State did not raise the applicability of Stone v. Powell to respondent's Miranda claim below or in its petition for certiorari, there is language in Stone which suggests that the bar it raises to relitigation of certain claims on federal habeas is jurisdictional or quasi-jurisdictional in nature. Stone, 428 U.S. at 428 U. S. 482, and n. 17. Other parts of the opinion appear to rest on the equitable nature of the writ of habeas corpus and the equity court's power to withhold certain forms of relief. Id. at 428 U. S. 494 -495, n. 37. Since I do not read the Court's opinion as foreclosing the analysis outlined above, I join the Court's opinion and judgment.

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