In The

Supreme Court of the United States




Decided June 12, 1984

Justice O’Connor, Concurring in part and dissenting in part


New York v. Quarles, 467 U.S. 649 (1984), was a decision by the United States Supreme Court regarding the public safety exception to the normal Fifth Amendment requirements of the Miranda warning.

Topic: Criminal Procedure*Court vote: 5–4
Note: No other Justices joined this opinion.
Holding: Concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda.
Citation: 467 U.S. 649 Docket: 82–1213Audio: 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, concurring in the judgment in part and dissenting in part.

In Miranda v. Arizona, 384 U. S. 436 (1966), the Court held unconstitutional, because inherently compelled, the admission of statements derived from in-custody questioning not preceded by an explanation of the privilege against self-incrimination and the consequences of forgoing it. Today, the Court concludes that overriding considerations of public safety justify the admission of evidence -oral statements and a gun -secured without the benefit of such warnings. Ante at 467 U. S. 657 -658. In so holding, the Court acknowledges that it is departing from prior precedent, see ante at 467 U. S. 653, and that it is "lessen[ing] the desirable clarity of [the Miranda ] rule," ante at 467 U. S. 658. Were the Court writing from a clean slate, I could agree with its holding. But Miranda is now the law and, in my view, the Court has not provided sufficient justification for departing from it or for blurring its now clear strictures. Accordingly, I would require suppression of the initial statement taken from respondent in this case. On the other hand, nothing in Miranda or the privilege itself requires exclusion of nontestimonial evidence derived from informal custodial interrogation, and I therefore agree with the Court that admission of the gun in evidence is proper. [ Footnote 2/1 ]


Prior to Miranda, the privilege against self-incrimination had not been applied to an accused's statements secured during custodial police interrogation. In these circumstances, the issue of admissibility turned not on whether the accused had waived his privilege against self-incrimination, but on whether his statements were "voluntary" within the meaning of the Due Process Clause. See, e.g., Haynes v. Washington, 373 U. S. 503 (1963); Payne v. Arkansas, 356 U. S. 560 (1958); Chambers v. Florida, 309 U. S. 227 (1940); Brown v. Mississippi, 297 U. S. 278 (1936). Under this approach, the "totality of the circumstances" were assessed. If the interrogation was deemed unreasonable or shocking, or if the accused clearly did not have an opportunity to make a rational or intelligent choice, the statements received would be inadmissible.

The Miranda Court for the first time made the Self-Incrimination Clause applicable to responses induced by informal custodial police interrogation, thereby requiring suppression of many admissions that, under traditional due process principles, would have been admissible. More specifically, the Court held that

the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

Miranda v. Arizona, 384 U.S. at 384 U. S. 444. Those safeguards included the now-familiar Miranda warnings -namely, that the defendant must be informed

that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires.

Id. at 384 U. S. 479. The defendant could waive these rights, but any waiver had to be made "knowingly and intelligently," id. at 384 U. S. 475, and the burden was placed on the prosecution to prove that such a waiver had voluntarily been made. Ibid. If the Miranda warnings were not properly administered or if no valid waiver could be shown, then all responses to interrogation made by the accused "while in custody... or otherwise deprived of his freedom of action in any significant way" were to be presumed coerced and excluded from evidence at trial. Id. at 384 U. S. 476, 384 U. S. 479.

The Miranda Court itself considered objections akin to those raised by the Court today. In dissent, JUSTICE WHITE protested that the Miranda rules would "operate indiscriminately in all criminal cases, regardless of the severity of the crime or the circumstances involved." Id. at 384 U. S. 544. But the Miranda Court would not accept any suggestion that "society's need for interrogation [could] outweig[h] the privilege." To that Court, the privilege against self-incrimination was absolute, and therefore could not be "abridged." Id. at 384 U. S. 479.

Since the time Miranda was decided, the Court has repeatedly refused to bend the literal terms of that decision. To be sure, the Court has been sensitive to the substantial burden the Miranda rules place on local law enforcement efforts, and consequently has refused to extend the decision or to increase its strictures on law enforcement agencies in almost any way. See, e.g., California v. Beheler, 463 U. S. 1121 (1983) (per curiam); Oregon v. Mathiason, 429 U. S. 492 (1977); Beckwith v. United States, 425 U. S. 341 (1976); Michigan v. Mosley, 423 U. S. 96 (1975); but cf. Edwards v. Arizona, 451 U. S. 477 (1981). Similarly, where "statements taken in violation of the Miranda principles [have] not be[en] used to prove the prosecution's case at trial," the Court has allowed evidence derived from those statements to be admitted. Michigan v. Tucker, 417 U. S. 433, 417 U. S. 445 (1974). But wherever an accused has been taken into "custody" and subjected to "interrogation" without warnings, the Court has consistently prohibited the use of his responses for prosecutorial purposes at trial. See, e.g., Estelle v. Smith, 451 U. S. 454 (1981); Orozco v. Texas, 394 U. S. 324 (1969); Mathis v. United States, 391 U. S. 1 (1968); cf. Harris v. New York, 401 U. S. 222 (1971) (statements may be used for impeachment purposes). As a consequence, the "meaning of Miranda has become reasonably clear, and law enforcement practices have adjusted to its strictures." Rhode Island v. Innis, 446 U. S. 291, 446 U. S. 304 (1980) (BURGER, C.J., concurring); see generally Stephens, Flanders, & Cannon, Law Enforcement and the Supreme Court: Police Perceptions of the Miranda Requirements, 39 Tenn.L.Rev. 407 (1972).

In my view, a "public safety" exception unnecessarily blurs the edges of the clear line heretofore established, and makes Miranda's requirements more difficult to understand. In some cases, police will benefit because a reviewing court will find that an exigency excused their failure to administer the required warnings. But in other cases, police will suffer because, though they thought an exigency excused their noncompliance, a reviewing court will view the "objective" circumstances differently, and require exclusion of admissions thereby obtained. The end result will be a finespun new doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence.

While the rigidity of the prophylactic rules was a principal weakness in the view of dissenters and critics outside the Court,... that rigidity [has also been called a] strength of the decision. It [has] afforded police and courts clear guidance on the manner in which to conduct a custodial investigation: if it was rigid, it was also precise.... [T]his core virtue of Miranda would be eviscerated if the prophylactic rules were freely [ignored] by... courts under the guise of [reinterpreting] Miranda....

Fare v. Michael C., 439 U. S. 1310, 439 U. S. 1314 (1978) (REHNQUIST, J., in chambers on application for stay).

The justification the Court provides for upsetting the equilibrium that has finally been achieved -that police cannot and should not balance considerations of public safety against the individual's interest in avoiding compulsory testimonial self-incrimination -really misses the critical question to be decided. See ante at 467 U. S. 657 -658. Miranda has never been read to prohibit the police from asking questions to secure the public safety. Rather, the critical question Miranda addresses is who shall bear the cost of securing the public safety when such questions are asked and answered: the defendant or the State. Miranda, for better or worse, found the resolution of that question implicit in the prohibition against compulsory self-incrimination, and placed the burden on the State. When police ask custodial questions without administering the required warnings, Miranda quite clearly requires that the answers received be presumed compelled, and that they be excluded from evidence at trial. See Michigan v. Tucker, supra, at 417 U. S. 445, 417 U. S. 447 -448, 417 U. S. 451, 417 U. S. 452, and n. 26; Orozco v. Texas, supra, at 3 394 U. S. 26.

The Court concedes, as it must, both that respondent was in "custody" and subject to "interrogation" and that his statement "the gun is over there" was compelled within the meaning of our precedent. See ante at 467 U. S. 654 -655. In my view, since there is nothing about an exigency that makes custodial interrogation any less compelling, a principled application of Miranda requires that respondent's statement be suppressed.


The court below assumed, without discussion, that the privilege against self-incrimination required that the gun derived from respondent's statement also be suppressed, whether or not the State could independently link it to him. [ Footnote 2/2 ] That conclusion was, in my view, incorrect.


Citizens in our society have a deeply rooted social obligation "to give whatever information they may have to aid in law enforcement." Miranda v. Arizona, 384 U.S. at 384 U. S. 478. Except where a recognized exception applies, "the criminal defendant, no less than any other citizen, is obliged to assist the authorities." Roberts v. United States, 445 U. S. 552, 445 U. S. 558 (1980). The privilege against compulsory self-incrimination is one recognized exception, but it is an exception nonetheless. Only the introduction of a defendant's own testimony is proscribed by the Fifth Amendment's mandate that no person "shall be compelled in any criminal case to be a witness against himself." That mandate does not protect an accused from being compelled to surrender nontestimonial evidence against himself. See Fisher v. United States, 425 U. S. 391, 425 U. S. 408 (1976).

The distinction between testimonial and nontestimonial evidence was explored in some detail in Schmerber v. California, 384 U. S. 757 (1966), a decision this Court handed down a week after deciding Miranda. The defendant in Schmerber had argued that the privilege against self-incrimination barred the State from compelling him to submit to a blood test, the results of which would be used to prove his guilt at trial. The State, on the other hand, had urged that the privilege prohibited it only from compelling the accused to make a formal testimonial statement against himself in an official legal proceeding. This Court rejected both positions. It favored an approach that protected the

accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature.

384 U.S. at 384 U. S. 761. The blood tests were admissible because they were neither testimonial nor communicative in nature. Id. at 384 U. S. 765.

In subsequent decisions, the Court relied on Schmerber in holding the privilege inapplicable to situations where the accused was compelled to stand in a lineup and utter words that allegedly had been spoken by the robber, see United States v. Wade, 388 U. S. 218, 388 U. S. 221 -223 (1967), to provide handwriting samples, see Gilbert v. California, 388 U. S. 263, 388 U. S. 265 -266 (1967), and to supply voice exemplars. See United States v. Dionisio, 410 U. S. 1, 410 U. S. 5 -7 (1973); see also United States v. Mara,410 U. S. 19,410 U. S. 21-22 (1973).

The distinction which... emerged [in these cases], often expressed in different ways, [was] that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it.

Schmerber v. California, supra, at 384 U. S. 764.


The gun respondent was compelled to supply is clearly evidence of the "real or physical" sort. What makes the question of its admissibility difficult is the fact that, in asking respondent to produce the gun, the police also "compelled" him, in the Miranda sense, to create an incriminating testimonial response. In other words, the case is problematic because police compelled respondent not only to provide the gun, but also to admit that he knew where it was and that it was his.

It is settled that Miranda did not itself determine whether physical evidence obtained in this manner would be admissible. See Michigan v. Tucker, 417 U.S. at 417 U. S. 445 -446, 417 U. S. 447, 417 U. S. 452, and n. 26. But the Court in Schmerber, with Miranda fresh on its mind, did address the issue. In concluding that the privilege did not require suppression of compelled blood tests, the Court noted:

This conclusion would not necessarily govern had the State tried to show that the accused had incriminated himself when told that he would have to be tested. Such incriminating evidence may be an unavoidable byproduct of the compulsion to take the test, especially for an individual who fears the extraction or opposes it on religious grounds. If it wishes to compel persons to submit to such attempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the test -products which would fall within the privilege.

384 U.S. at 384 U. S. 765, and n. 9 (emphasis in original). Thus, Schmerber resolved the dilemma by allowing admission of the nontestimonial, but not the testimonial, products of the State's compulsion.

The Court has applied this bifurcated approach in its subsequent cases as well. For example, in United States v. Wade, 388 U. S. 218, 388 U. S. 223 (1967), where admission of a lineup identification was approved, the Court emphasized that no question was presented as to the admissibility of anything said or done at the lineup. Likewise, in Michigan v. Tucker, where evidence derived from a technical Miranda violation was admitted, the Court noted that no statement taken without Miranda warnings was being admitted into evidence. See 417 U.S. at 417 U. S. 445 ; cf. California v. Byers, 402 U. S. 424, 402 U. S. 431 -433 (1971) (opinion of BURGER, C.J.). Thus, based on the distinction first articulated in Schmerber,

a strong analytical argument can be made for an intermediate rule whereby[,] although [the police] cannot require the suspect to speak by punishment or force, the nontestimonial [evidence derived from] speech that is [itself] excludable for failure to comply with the Miranda code could still be used.

H. Friendly, Benchmarks 280 (1967).

To be sure, admission of nontestimonial evidence secured through informal custodial interrogation will reduce the incentives to enforce the Miranda code. But that fact simply begs the question of how much enforcement is appropriate. There are some situations, as the Court's struggle to accommodate a "public safety" exception demonstrates, in which the societal cost of administering the Miranda warnings is very high indeed. [ Footnote 2/3 ] The Miranda decision quite practically does not express any societal interest in having those warnings administered for their own sake. Rather, the warnings and waiver are only required to ensure that "testimony" used against the accused at trial is voluntarily given. Therefore, if the testimonial aspects of the accused's custodial communications are suppressed, the failure to administer the Miranda warnings should cease to be of concern. Cf. Weatherford v. Bursey, 429 U. S. 545 (1977) (where interference with assistance of counsel has no effect on trial, no Sixth Amendment violation lies). The harm caused by failure to administer Miranda warnings relates only to admission of testimonial self-incriminations, and the suppression of such incriminations should, by itself, produce the optimal enforcement of the Miranda rule.


There are, of course, decisions of this Court which suggest that the privilege against self-incrimination requires suppression not only of compelled statements but also of all evidence derived therefrom. See, e.g., Maness v. Meyers, 419 U. S. 449 (1975); Kastigar v. United States, 406 U. S. 441 (1972); McCarthy v. Arndstein, 266 U. S. 34 (1924); Counselman v. Hitchcock, 142 U. S. 547 (1892). In each of these cases, however, the Court was responding to the dilemma that confronts persons asserting their Fifth Amendment privilege to a court or other tribunal vested with the contempt power. In each instance, the tribunal can require witnesses to appear without any showing of probable cause to believe they have committed an offense or that they have relevant information to convey, and require the witnesses to testify even if they have formally and expressly asserted a privilege of silence. Individuals in this situation are faced with what Justice Goldberg once described as "the cruel trilemma of self-accusation, perjury, or contempt." Murphy v. Waterfront Comm'n, 378 U. S. 52, 378 U. S. 55 (1964). If the witness' invocation of the privilege at trial is not to be defeated by the State's refusal to let him remain silent at an earlier proceeding, the witness has to be protected "against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case...." Lefkowitz v. Turley, 414 U. S. 70, 414 U. S. 78 (1973).

By contrast, suspects subject to informal custodial police interrogation of the type involved in this case are not in the same position as witnesses required to appear before a court, grand jury, or other such formal tribunal. Where independent evidence leads police to a suspect, and probable cause justifies his arrest, the suspect cannot seriously urge that the police have somehow unfairly infringed on his right "to a private enclave where he may lead a private life." Murphy v. Waterfront Comm'n, supra, at 378 U. S. 55. Moreover, when a suspect interjects not the privilege itself, but a post hoc complaint that the police failed to administer Miranda warnings, he invokes only an irrebuttable presumption that the interrogation was coercive. He does not show that a privilege was raised and that the police actually or overtly coerced him to provide testimony and other evidence to be used against him at trial. See Johnson v. New Jersey, 384 U. S. 719, 384 U. S. 730 (1966). He could have remained silent and the interrogator could not have punished him for refusing to speak. Indeed, the accused is in the unique position of seeking the protection of the privilege without having timely asserted it. Cf. United States v. Kordel, 397 U. S. 1, 397 U. S. 10 (1970) (failure to assert waives right to complain about testimonial compulsion). The person in police custody surely may sense that he is in "trouble," Oregon v. Hass, 420 U. S. 714, 420 U. S. 722 (1975), but he is in no position to protest that he faced the Hobson's choice of self-accusation, perjury, or contempt. He therefore has a much less sympathetic case for obtaining the benefit of a broad suppression ruling. See Michigan v. Tucker, 417 U.S. at 417 U. S. 444 -451; cf. New Jersey v. Portash, 440 U. S. 450, 440 U. S. 458 -459 (1979).

Indeed, whatever case can be made for suppression evaporates when the statements themselves are not admitted, given the rationale of the Schmerber line of cases. Certainly interrogation which provides leads to other evidence does not offend the values underlying the Fifth Amendment privilege any more than the compulsory taking of blood samples, fingerprints, or voice exemplars, all of which may be compelled in an "attempt to discover evidence that might be used to prosecute [a defendant] for a criminal offense." Schmerber v. California, 384 U.S. at 384 U. S. 761. Use of a suspect's answers

merely to find other evidence establishing his connection with the crime [simply] differs only by a shade from the permitted use for that purpose of his body or his blood.

H. Friendly, Benchmarks 280 (1967). The values underlying the privilege may justify exclusion of an unwarned person's out-of-court statements, as perhaps they may justify exclusion of statements and derivative evidence compelled under the threat of contempt. But when the only evidence to be admitted is derivative evidence such as a gun derived not from actual compulsion but from a statement taken in the absence of Miranda warnings -those values simply cannot require suppression, at least no more so than they would for other such nontestimonial evidence. [ Footnote 2/4 ]

On the other hand, if a suspect is subject to abusive police practices and actually or overtly compelled to speak, it is reasonable to infer both an unwillingness to speak and a perceptible assertion of the privilege. See Mincey v. Arizona, 437 U. S. 385, 437 U. S. 396 -402 (1978). Thus, when the Miranda violation consists of a deliberate and flagrant abuse of the accused's constitutional rights, amounting to a denial of due process, application of a broader exclusionary rule is warranted. Of course,

a defendant raising [such] a coerced confession claim... must first prevail in a voluntariness hearing before his confession and evidence derived from it [will] become inadmissible.

Kastigar v. United States, 406 U.S. at 406 U. S. 462. By contrast, where the accused proves only that the police failed to administer the Miranda warnings, exclusion of the statement itself is all that will and should be required. [ Footnote 2/5 ] Limitation of the Miranda prohibition to testimonial use of the statements themselves adequately serves the purposes of the privilege against self-incrimination.


In Miranda, the Court looked to the experience of countries like England, India, Scotland, and Ceylon in developing its code to regulate custodial interrogations. See Miranda v. Arizona,384 U.S. at384 U. S. 486-489. Those countries had also adopted procedural rules to regulate the manner in which police secured confessions to be used against accused persons at trial.SeeNote, Developments in the Law -Confessions, 79 Harv.L.Rev. 935, 1090-1114 (1966). Confessions induced by trickery or physical abuse were never admissible at trial, and any confession secured without the required procedural safeguards could, in the courts' discretion, be excluded on grounds of fairness or prejudice.SeeGotlieb, Confirmation by Subsequent Facts, 72 L.Q.Rev. 209, 223-224 (1956). But nontestimonial evidence derived from all confessions "not blatantly coerced" was and still is admitted. Friendly,supra,at 282;see also Commissioners of Customs and Excise v. Harz,1 All E.R. 177, 182 (1967);King v. Warickshall,1 Leach 262, 168 Eng.Rep. 234 (K.B. 1783). Admission of nontestimonial evidence of this type is based on the very sensible view that procedural errors should not cause entire investigations and prosecutions to be lost.SeeEnker & Elsen, Counsel For the Suspect:Massiah v. United StatesandEscobedo v. Illinois,49 Minn.L.Rev. 47, 80 (1964).

The learning of these countries was important to development of the initial Miranda rule. It therefore should be of equal importance in establishing the scope of the Miranda exclusionary rule today. [ Footnote 2/6 ] I would apply that learning in this case, and adhere to our precedents requiring that statements elicited in the absence of Miranda warnings be suppressed. But because nontestimonial evidence such as the gun should not be suppressed, I join in that part of the Court's judgment that reverses and remands for further proceedings with the gun admissible as evidence against the accused.


[ Footnote 2/1 ]

As to the statements elicited after the Miranda warnings were administered, admission should turn solely on whether the answers received were voluntary. See Miranda v. Arizona, 384 U. S. 436, 384 U. S. 475 (1966). In this case, the state courts made no express finding concerning the voluntariness of the statements made, because they thought the answers received had to be suppressed as "fruit" of the initial failure to administer Miranda warnings. App. 43a-44a; 58 N.Y.2d 644, 666, 444 N.E.2d 984, 985 (1982). Whether the mere failure to administer Miranda warnings can "taint" subsequent admissions is an open question, compare United States v. Toral, 536 F.2d 893, 896-897 (CA9 1976), with Oregon v. Elstad, 61 Ore.App. 673, 658 P.2d 552 (1983), cert. granted, 465 U.S. 1078 (1984), but a proper inquiry must focus at least initially, if not exclusively, on whether the subsequent confession is itself free of actual coercion. See Lyons v. Oklahoma, 322 U. S. 596, 322 U. S. 603 (1944). I would reverse and remand for further factual findings on this issue.

[ Footnote 2/2 ]

Respondent contends that the separate admissibility of the gun is not preserved for our review. Brief for Respondent 45-51. This contention is meritless. Respondent's motion to suppress and supporting affidavit asked that the gun be excluded because it was obtained in contravention of his privilege under the Fifth Amendment. See App. 5a, 7a-8a. The State clearly opposed this motion, contending that admission of the statements and the gun would not violate respondent's rights under the Constitution. Id. at 9a. Both the Supreme Court of the State of New York and the New York Court of Appeals required the gun, as well as the statements, to be suppressed because respondent was not given the warnings to which they thought he was constitutionally entitled. Id. at 43a (Supreme Court); 58 N.Y.2d at 666, 444 N.E.2d at 985 (Court of Appeals). The issue whether the failure to administer warnings, by itself, constitutionally requires exclusion of the gun was therefore clearly contested, passed on, and preserved for this Court's review. See Illinois v. Gates, 462 U. S. 213, 462 U. S. 217 -224 (1983).

Respondent also contends that, under New York law, there is an "independent and adequate state ground" on which the Court of Appeals' judgment can rest. Brief for Respondent 51-55. This may be true, but it is also irrelevant. Both the trial and appellate courts of New York relied on Miranda to justify exclusion of the gun; they did not cite or expressly rely on any independent state ground in their decisions. In these circumstances, this Court has jurisdiction. See Michigan v. Long, 463 U. S. 1032, 463 U. S. 1040 -1041 (1983).

[ Footnote 2/3 ]

The most obvious example, first suggested by Judge Henry Friendly, involves interrogation directed to the discovery and termination of an ongoing criminal activity such as kidnaping or extortion. See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 949 (1965).

[ Footnote 2/4 ]

In suggesting that Wong Sun v. United States, 371 U. S. 471 (1963), requires exclusion of the gun, see post at 467 U. S. 688 -689, JUSTICE MARSHALL fails to acknowledge this Court's holding in Michigan v. Tucker, 417 U. S. 433, 417 U. S. 445 -446 (1974). In Tucker, the Court very clearly held that Wong Sun is inapplicable in cases involving mere departures from Miranda. Wong Sun and its "fruit of the poisonous tree" analysis lead to exclusion of derivative evidence only where the underlying police misconduct infringes a "core" constitutional right. See 417 U.S. at 417 U. S. 445 -446. Failure to administer Miranda warnings violates only a nonconstitutional prophylactic. Ibid.

Nix v. Williams, ante p. 467 U. S. 431, is not to the contrary. In Nix, the Court held that evidence which inevitably would have been discovered need not be excluded at trial because of independent police misconduct. The Court in Nix discusses Wong Sun and its "fruit of the poisonous tree" analysis only to show that, even assuming a "core" violation of the Fourth, Fifth, or Sixth Amendment, evidence with a separate causal link need not be excluded at trial. Thus, Nix concludes that only

where 'the subsequent trial [cannot] cure a[n otherwise] one-sided confrontation between prosecuting authorities and the uncounseled defendant,'

ante at 467 U. S. 447 (quoting from United States v. Ash, 413 U. S. 300, 413 U. S. 315 (1973)), should derivative evidence be excluded. Cf. Brewer v. Williams, 430 U. S. 387, 430 U. S. 406 -407, and n. 12 (1977) (leaving open question whether any evidence beyond the incriminating statements themselves must be excluded); Massiah v. United States, 377 U. S. 201, 377 U. S. 207 (1964) (same).

[ Footnote 2/5 ]

Respondent has not previously contended that his confession was so blatantly coerced as to constitute a violation of due process. He has argued only that police failed to administer Miranda warnings. He has proved, therefore, only that his statement was presumptively compelled. In any event, that is a question for the trial court on remand to decide in the first instance, not for this Court to decide on certiorari review.

[ Footnote 2/6 ]

Interestingly, the trend in these other countries is to admit the improperly obtained statements themselves, if nontestimonial evidence later corroborates, in whole or in part, the admission. See Note, Developments in the Law -Confessions, 79 Harv.L.Rev. 935, 1094-1095, 1100, 1104, 1108-1109 (1966); see also Queen v. Ramasamy, [1965] A.C. 1, 12-15 (P. C.).

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