• Miranda and Civil Liability for Violations
• The Fifth Amendment as it Relates to Miranda
• The Prophylactic Nature of a Miranda Violation

A violation of the rules of Miranda is not also, by itself, a Fifth Amendment constitutional violation.  The use of a defendant’s statements at trial, obtained in violation of Miranda, does not convert the Miranda violation into a Fifth Amendment issue. Therefore, violating Miranda, as a general rule, does not provide the basis for a federal 42 U.S.C. § 1983 civil rights lawsuit. 

Plaintiff Terence Tekoh worked as a certified nursing assistant at a Los Angeles medical center.  In March, 2014, a female patient accused him of sexually assaulting her.  The hospital staff reported the accusation to the Los Angeles County Sheriff’s Department.  Sheriff’s Deputy Carlos Vega was dispatched to investigate.  Deputy Vega took Tekoh to a “reading room” (i.e., a small, windowless and soundproof room used by doctors to read MRIs), where he was questioned about the patient’s accusations.  Deputy Vega did not read Tekoh his Miranda rights or obtain a waiver prior to the questioning, apparently considering the situation to be a non-custodial interrogation.  Deputy Vega alleged in later court hearings that Tekoh had immediately admitted that he’d “made a mistake.”  Deputy Vega had Tekoh put in writing what he himself referred to as an “honest and regrettable apology,” admitting in a brief account to “spreading (the patient’s) vagina lip for a quick view.”  Tekoh, on the other hand, claimed that he continually denied touching the patient, but wrote out his mini-confession only after having been threatened by Deputy Vega.  Specifically, Tekoh alleged that Deputy Vega refused to allow a third person to accompany them into the MRI room, would not let him leave the room once they were in there, ignored his request for an attorney, falsely claimed that the assault had been captured on video, used racial slurs, and threatened him with deportation, all triggering flashbacks to his experiences with police brutality in Cameroon where he was from.  According to Tekoh, Deputy Vega put a pen and paper in front of him, telling him to “write what the patient said [he] did.” When Tekoh hesitated, attempting to leave the room, Deputy Vega stood in front of him, stepped on his toes, and put his hand on his gun, telling Tekoh that he was not joking. Tekoh also alleged that Deputy Vega then dictated the contents of the written confession.  Tekoh testified that he was so scared that he was “ready to write whatever [Deputy Vega] wanted,” acquiescing to writing the statement as dictated to him.  (These facts were largely obtained from the Ninth Circuit’s prior decision in Tekoh v. County of Los Angeles (9th Cir. Jan. 15, 2021) 985 F.3rd 713, at pages 715-716.  See California Legal Update, Vol. 26, #4, March 23, 2021.)  Arrested and charged in state court with unlawful sexual penetration, per P.C. § 289(d), Tekoh’s confession was admitted into evidence at trial.  With a mistrial being declared mid-trial (due to evidence being used by the prosecution that had not previously been disclosed to the defense; i.e., a Brady v. Maryland violation), defendant was retried and acquitted despite the trial court admitting into evidence his written confession (the jury apparently believing Tekoh’s claims that it had been coerced and was not reliable).  Tekoh then sued Deputy Vega (and others) in federal court under authority of 42 U.S.C. § 1983, seeking damages for alleged violations of his constitutional rights, including his Fifth Amendment right against compelled self-incrimination.  Two trials were held, the first resulting in a verdict in Tekoh’s favor but the trial court granting the civil defendants’ motion for a new trial due to instructional error (not an issue here).  In the second trial, Tekoh requested that the court instruct the jury (pay attention, now; this is the issue in this case) that if it was determined by the jury that Deputy Vega had taken a statement from Tekoh in violation of Miranda and that the statement had been used against Tekoh at his criminal trial, then the jury was required to find that the deputy had violated Tekoh’s Fifth Amendment right against compelled self-incrimination.  The trial court declined to give this instruction, reasoning that Miranda established a “prophylactic rule” only, and that a Miranda violation by itself did not provide grounds for §1983 liability.  Instead, the trial court instructed the jury to the effect that to find that Deputy Vega civilly liable (i.e., that he had violated the Fifth Amendment), they would have to find that he improperly “coerced or compelled” Tekoh into confessing.  Per the trial court’s instructions to the jury, in order to find that Deputy Vega had “improperly coerced or compelled (Tekoh into confessing, the jury would have to find that Deputy Vega had used) physical or psychological force or threats not permitted by law to undermine (Tekoh’s) ability to exercise his . . . free will.” The jury found in Deputy Vega’s favor (i.e., that his confession had not been coerced), and Tekoh appealed.  The Ninth Circuit reversed in Tekoh v. County of Los Angeles, supra, ruling that the trial court should have given the jury the instruction as Tekoh had requested; i.e., to the effect that a simple Miranda violation (with or without actual coercion), becomes a constitutional Fifth Amendment violation when the resulting confession is used at trial.  The United States Supreme Court granted certiorari.

The U.S. Supreme Court, in a split 6-to-3 decision, reversed the Ninth Circuit.  The issue decided by the Supreme Court was whether a simple failure to comply with the Miranda rule (without coercion) constitutes a violation of the Fifth Amendment.  More to the point of the Ninth Circuit’s decision:  Does a Miranda violation ripen into a violation of the Fifth Amendment when the results of the Miranda violation are used at trial   The simple answer to both questions, per the U.S. Supreme Court, is “no.”  First, we must be reminded what the Fifth Amendment says about the issue of “self-incrimination:”  “No person . . . shall be compelled in any criminal case to be a witness against himself.” The Court pointed out that this simple clause “permitshttps://advance.lexis.com/document/ pdmfid=1000516&crid=d9f33bab-616b-46ce-9e74-701f91cf4d1c&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A65S3-40F1-F1H1-20MV-00000-00&pdcontentcomponentid=6443&pdteaserkey=sr0&pditab=allpods&ecomp=sd-pk&earg=sr0&prid=92cd8a64-217a-4400-832a-cbcde09b22e9 a person to refuse to testify against himself at a criminal trial in which he is a defendant” and “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.’” (Minnesota v. Murphy (1984) 465 U. S. 420, 426.) This includes interrogations when the subject is in custody.  (Stansbury v. California (1994) 511 U.S. 318, 322.)  The Fifth Amendment has been interpreted to be applicable to the States by the Fourteenth Amendment’s due process clause; i.e., as an issue of “fundamental fairness.”  (Malloy v. Hogan (1964) 378 U. S. 1, 6, 20.)  The Fifth Amendment (of course) says nothing about an interrogating officer having to advise a criminal suspect of his right not to incriminate himself, let alone his right to have the assistance of an attorney when being questioned, or the fact that failure to follow these rules will result in the suppression of any resulting incriminating statements.  These rules came about as a result of the Supreme Court’s recognition of the fact that in-custody interrogations are inherently coercive and necessitated by the need to safeguard these rights.  But (and this is a big butt), the Miranda decision was never intended to create a constitutional right.  Per the Court, Miranda “merely imposed a set of prophylactic rules. Those rules, to be sure, are ‘constitutionally based,’ . . .  but they are prophylactic rules nonetheless.”  (Citing Dickerson v. United States (2000) 530 U.S. 428, at 444.)  The Court goes on to point out that neither the Miranda decision itself (decided in 1966, at 384 U.S. 436), nor the multitude of Supreme Court cases since (listing some 19 Supreme Court decisions decided from 1973 to the present), have ever intimated that Miranda was intended to establish anything more than a “prophylactic” rule.  Since Miranda was decided, the Court had “engaged in the process of charting the dimensions of these new prophylactic rules, . . . weighing the benefits and costs of any clarification of the rules’ scope.”  But never has the Court intimated that a violation of the Miranda rules constituted a violation of the Fifth Amendment, whether the resulting incriminating statements were used in trial or not.  The Court noted that while evidence obtained as a direct product of a constitutional violation (e.g., the Fourth Amendment, search & seizure rules) are normally inadmissible at trial, the “fruits” (i.e., physical evidence recovered) of a Miranda violation are admissible at trial, even though (under Miranda) the subject’s incriminatory admissions themselves are not. (See Michigan v. Tucker (1974) 417 U.S. 433, 450-452.)  The confusion on this issue was precipitated by the Supreme Court’s decision in Dickerson v. United States (2000) 530 U.S. 428.  In Dickerson, the Court held that the Legislature could not abrogate Miranda by enacting a statute in that Miranda was a “constitutional decision” that adopted a “constitutional rule.” (Dickerson, at pp. 438-439.)  This, however, was not intended to equate a Miranda violation with a violation of the Fifth Amendment under the U.S. Constitution.  To the contrary, “the Court (in Dickerson) made it clear that it was not equating a violation of the Miranda rules with an outright Fifth Amendment violation.”  Dickerson did no more than note that the “Miranda rules are ‘constitutionally based’ and have ‘constitutional underpinnings.’”   Per the Court, “Dickerson . . . did not upset the firmly established prior understanding of Miranda as a prophylactic decision.”  This all having been said, the Court noted that Tekoh was not necessarily precluded from bringing a 42 U.S.C. § 1983 lawsuit based upon the circumstances of this case. “It may . . . be argued that the Miranda rules constitute federal “law” and that an abridgment of those rules can therefore provide the grounds for a §1983 claim.  But it was incumbent upon Tekoh to persuade the Court that this “law” should be expanded to include the right to sue for damages under section 1983.  Specifically, he must show (1) that the benefits outweigh the costs, (2) that to allow such a suit would have some deterrent value (e.g., discouraging similar conduct by law enforcement officers), and (3) it would not disserve “judicial economy.”  The Court here held that Tekoh failed to prove any of these elements.  The Court therefore declined to extend the consequences of a Miranda violation to beyond merely excluding any resulting statements from being admitted into evidence.  “Because a violation of Miranda is not itself a violation of the Fifth Amendment, and because (the Court saw) no justification for expanding Miranda to confer a right to sue under §1983, the judgment of the Court of Appeals (was) reversed, and the case (was) remanded for further proceedings consistent with this opinion.”

I have a couple of problems with this decision. First, the Court assumes that questioning Tekoh under these circumstances was, as he alleged, a “custodial integration.”  This issue was never discussed even though it is apparent that Deputy Vega believed (as evidenced by his failure to Mirandize Tekoh) it was non-custodial.  This contention is supported by Deputy Vega’s claim that Tekoh began blurting out his guilt even before Deputy Vega was able to ask him what had happened.  Secondly, and most obviously, the Court never addresses the issue of coercion.  Terence Tekoh argued that not only were his Miranda rights violated, but that he was coerced into confessing as well; an allegation that Deputy Vega denied.  The jury at Tekoh’s criminal trial must have bought his claims that he had been coerced into confessing in that he was acquitted despite the written confession.  It appears from the case law that a coerced confession is in fact a 5th Amendment constitutional violation that is litigable under 42 U.S.C. § 1983.  (E.g., see Moran v. Burbine (1986) 475 U.S. 412, 421, People v. McClinton (2018) 29 Cal.App.5th 738, 762-764; People v. Jimenez (2021) 72 Cal.App.5th 712, 725.)  I would have liked to have seen a discussion on this issue, specifically explaining whether alleging a coerced confession (as opposed to a mere Miranda violation) did in fact allow for a section 1983 lawsuit.  Third; I went back and re-read the relevant portions of the Dickerson decision and have to agree with Justice Elena Kagan in her dissenting opinion (joined by Justices Breyer and Sotomayor) that the Dickerson Court did in fact find “that Miranda’s protections are a ‘right’ ‘secured by the Constitution’ under the federal civil rights statute” (i.e., 42 U.S.C. §1983).  The majority decision in the Dickerson case itself in fact reversed the lower court’s decision which was based upon the “prophylactic” nature of the rule of Miranda.  Now, the majority decision here attempts to walk some imaginary thin line, placing great emphasis on the fact that Miranda is but a non-constitutional “prophylactic” rule, not guaranteed by the Fifth Amendment, while at the same time constituting a “constitutional decision” that adopted a “constitutional rule.”  I see this language as very contradictory, bordering on the nonsensical.  The dissent, in my never-to-be-so-humble opinion, makes a lot more sense.