Tuesday, April 07, 2009

McNabb-Mallory Rule Survives, Subject to Six-Hour Safe Harbor Provision in 18 U.S.C. § 3501(c)

Corley v. United States, No. 07-10441 (U.S. Apr. 6, 2009)

Remember the McNabb-Mallory rule? That's the one that says a confession obtained during a period of unnecessary delay in presenting an arrestee to a magistrate is inadmissible, even if the confession was voluntary. Congress, evidently dissatisfied with both McNabb-Mallory and Miranda, later enacted 18 U.S.C. § 3501. Subsection (a), targeted at Miranda, declared that "a confesssion . . . shall be admissible in evidence if it is voluntarily given." Subsection (c), targeted at McNabb-Mallory, provides that a voluntary confession is not inadmissible solely because of a presentment delay if the confession was made within six hours of arrest, or even beyond six hours if the additional delay was "reasonable considering the means of transportation and the distance to be traveled to the nearest available . . . magistrate judge or other officer."

Which brings us to the question presented in Corley: "whether Congress intended § 3501(a) to sweep McNabb-Mallory's exclusionary rule aside entirely, or merely meant § 3501(c) to provide immunization to voluntary confessions given within six hours of a suspect's arrest." The answer, per Justice Souter for a five-Justice majority:

We hold that §3501 modified McNabb-Mallory without supplanting it. Under the rule as revised by §3501(c), a district court with a suppression claim must find whether the defendant confessed within six hours of arrest (unless a longer delay was "reasonable considering the means of transportation and the distance to be traveled to the nearest available [magistrate]"). If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was "made voluntarily and . . . the weight to be given [it] is left to the jury." If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed.

Why? Primarily because of what the Court dubs the "antisuperfluousness canon." If § 3501(a) really means that voluntariness is the sole criterion of admissibility of a confession, then subsection (c) would have no application whatsoever. That would run counter to "one of the most basic interpretive canons, that 'a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.'" (alterations and quotation marks omitted).

Indeed, the Government conceded as much. Which is why the Goverment "attempt[ed] to mitigate its problem by rewriting (c) into a clarifying, if not strictly necessary, provision:" providing a "bright-line rule" explaining that "delay alone does not make a confession involuntary unless the delay exceeds six hours." To which the Court replied: Congress didn't write the statute that way. The Government's argument assumes that "inadmissible" and "involuntary" mean essentially the same thing in the statute. But McNabb and Mallory make clear that they are two different concepts, and the Court presumes Congress was aware of the distinction.

The Government also argued that "reading (a) as overruling Miranda and (c) as qualifying McNabb-Mallory" creates a conflict between the two provisions. Not so. Even if there is a conflict, the more specific (c) would control over the more general (a). Also, reading (a) literally would itself creates conflicts between the statute and various rules of evidence, an absurd result.

In what may prove to be the most controversial portion of the opinion, the Court read § 3501's legislative history as "strongly favor[ing]" the view that (a) was intended to effectively overturn Miranda, and that (c) meant to address McNabb-Mallory. In particular, the Court cited "the debate on the Senate floor immediately before" the vote on the bill, and revisions made as the bill passed through the Senate. The Court even declared that "a sponsor's statement to the full Senate carries considerable weight[.]"

Next, the Court observed that the Government's reading of the statute would leave Rule 5's presentment requirement toothless, a result that fails to reflect the practical importance of presentment: informing the defendant of the charges against him and a number of important rights, offering him the opportunity to consult with counsel, and deciding whether to grant bail. And in a couple of paragraphs that are clearly about more than just this case, the Court said:

In a world without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to. No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. "[C]ustodial police interrogation, by its very nature, isolates and pressures the individual," and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed.

Justice Frankfurter’s point in McNabb is as fresh as ever: "The history of liberty has largely been the history ofobservance of procedural safeguards." McNabb-Mallory is one of them, and neither the text nor the history of §3501 makes out a case that Congress meant to do away with it.

(cites not presented).

Finally, the Government argued that FRE 402---declaring that relevant evidence is admissible---eliminated whatever might have remained of McNabb-Mallory after the enactment of § 3501. After chastizing the Government for not raising this argument below, the Court declared it without merit. Not only do the Advisory Committee's Notes to Rule 402 "expressly identif[y] McNabb-Mallory as a statutorily authorized rule that would survive Rule 402[,]" but "the Government has previously conceded before this Court that Rule 402 preserved McNabb-Mallory. . . . The Government was right the first time, and it would be bizarre to hold that Congress adopted Rule 402 with a purpose exactly opposite to what the Advisory Committee Notes said the rule would do."

Justice Alito, joined by the Chief and Justices Scalia and Thomas, dissented. In his view, the threshold question is "'whether the statutory text is plain and unambiguous,' and 'if it is, we must apply the statute according to its terms.'" (clutter eliminated). Section 3501(a) is unambiguous, so that's that. As for the antisuperfluousness canon,
Canons of interpretation "are quite often useful in close cases, or when statutory language is ambiguous. But we have observed before that such ‘interpretative canon[s are] not a license for the judiciary to rewrite language enacted by the legislature.’" Like other canons, the antisuperfluousness canon is merely an interpretive aid, not an absolute rule. There are times when Congress enacts provisions that are superfluous, and this may be such an instance.

(superfluous cites omitted). Plus, subsection (c) is not superfluous if it is read to mean "that a confession is admissible if it is given within six hours of arrest and it is otherwise voluntary—that is, if there is no basis other than prepresentment delay for concluding that the confession was coerced. Read in this way, §3501(c) is not superfluous."

Moreover, the specific-over-general canon doesn't apply here because there is no conflict between (a) and (c).
What the Court identifies is not a conflict between two statutory provisions but a conflict between the express language of one provision (§3501(a)) and the "negative implication" that the Court draws from another (§3501(c)). Because §3501(c)precludes the suppression of a voluntary confession based solely on a delay of less than six hours, the Court infers that Congress must have contemplated that a voluntary confession could be suppressed based solely on a delay of more than six hours. The Court cites no authority for a canon of interpretation that favors a "negative implication" of this sort over clear and express statutory language.

As for the majority's concern of having a right without a remedy, 1) there's no reason to exclude "voluntary confessions made during a period of excessive prepresentment delay[,]" 2) the Court has never held that the Fourth Amendment's prompt presentment requirement "is backed by an automatic exclusionary sanction" (ominously citing Hudson v. Michigan), and 3) "the McNabb-Mallory rule provides no scation for excessive prepresentment delay in those instances in which no confession is sought or obtained." Moreover, it's not clear what purpose McNabb-Mallory serves in a post-Miranda world, especially since an arrestee can waive both his Miranda rights and his right to prompt presentment. And in fact, "[m]ore than a few courts of appeals[,]" including, apparently, the Fifth, "have gone so far as to hold tha ta waiver of Miranda rights also constitutes a waiver under McNabb-Mallory[,]" although the dissent dodges the question of whether those decisions are correct.

Turning to legislative history, the dissent finds some to support its side. The Senate Report on the bill "clearly says that §3501(a) was meant to reinstate the traditional rule that a confession should be excluded only if involuntary, a setp that obviously has consequences beyond the elimination of Miranda." As for the floor statements on which the majority relies,
there is no evidence that a majority of the House and Senate shared [those views], and any Member who took a few moments to read subsections (a) and (c) must readily have understoodthat subsection (a) would wipe away all non-constitutionally based rules barring the admission of voluntary confessions, not just Miranda, and that subsection (c) did not authorize the suppression of any voluntary confessions. The Court unjustifiably attributes to a majority of the House and Senate a mistake that, the legislative history suggests, may have been made by only a few.

Finally, the majority's suggestion that the Government's reading of the statute would require admission of statements otherwise excluded by the rules of evidence doesn't hold up, as there's no reason to think Congress intended such a result, and the statute doesn't supersede the Federal Rules of Evidence.

Like the recent line of cases interpreting the ACCA, the dueling opinions here in Corley show just how malleable the canons of statutory interpretation can be. And even though the vote in this case broke down along the simplistic conservative-liberal lines with Kennedy in the middle, if one were to read the two opinions without knowing who wrote or joined either one, neither the lineup nor the tally would be obvious, just like the ACCA cases.

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