On the "fruits" of Miranda violations, coerced confessions, and compelled testimony. (2024)

Professor Akhil Reed Amar and Ms. Renee B. Lettow have written alively, provocative article that will keep many of us who teachconstitutional-criminal procedure busy for years to come.(1) Theypresent a reconception of the "first principles" of the FifthAmendment, and they suggest a dramatic reconstruction of criminalprocedure. As a part of that reconstruction, they propose, inter alia,that at a pretrial hearing presided over by a judicial officer, thegovernment should be empowered to compel a suspect, under penalty ofcontempt, to provide finks in the chain of evidence needed to convicthim.(2)

Under the Amar-Lettow proposal, a suspect brought to this pretrialhearing would only receive "testimonial immunity," that is,protection against use of the specific testimony compelled from him. Hewould not, however, be provided any protection against derivative use -the use of his compelled testimony to search out other sources ofinformation that might furnish the means of convicting him, such as thewhereabouts of damaging physical evidence or the names and addresses ofpotential witnesses for the prosecution.

More than a hundred years ago, in Counselman v. Hitchcock,(3) theCourt struck down a federal immunity statute because, as JusticeFrankfurter later explained, the immunity grant "merely forbade theuse of the testimony given and failed to protect a witness from futureprosecution based on knowledge and sources of information obtained fromthe compelled testimony."(4) If the Amar-Lettow view prevails,however, a witness in Counselman's plight would be held in contemptfor refusing to reveal leads to extrinsic evidence that could be used toconvict him.

A quarter-century ago, in Kastigar v. United States,(5) the Courttold us that protection against the use and derivative use of compelledtestimony was coextensive with the scope of the privilege againstcompulsory self-incrimination. But Amar and Lettow tell us that"use and derivative use immunity" is excessive; protectionagainst the use of the witness's own words is afl that the FifthAmendment requires.

Although Amar and Lettow's conception of the Fifth Amendment isnoteworthy, a judicially supervised interrogation proceeding is "anidea which has been part of the body of legal literature for a longtime."(6) As I have discussed elsewhere,(7) My former colleague,Paul Kauper, appears to have been the first commentator to discuss atany substantial length the need for, the desirability of, and the legaland practical problems raised by such a procedure. Writing more thanthirty years later - and nearly thirty years before Amar and Lettow -Judges Walter Schaefer and Henry Friendly, two of the most eminentcritics of the Warren Court's most controversial confession cases,Escobedo v. Illinois(8) and Miranda v. Arizona,(9) in effect returned toand built upon the 1932 Kauper proposal.(10)

What I have called the "Kauper-Schaefer-Friendly plan"differs in one important respect, however, from the Amar-Lettowproposal. Under the former proposal, the judicial officer could not holda suspect who refused to respond to questioning in contempt: "[t]heonly sanction" for a suspect's silence was "to permit thetrier of the fact to consider that silence for whatever value it has indetermining guilt or innocence."(11) Moreover, in order to permitcomment at trial upon a suspect's silence during the judiciallysupervised interrogation, both Schaefer and Friendly assumed the needfor, and proposed, a constitutional amendment.(12)

Although their proposal is not linked to a ban against the use ofconfessions obtained in the stationhouse, Amar and Lettow do say, in anapparent effort to sweeten their proposal, that with the advent of thejudicially supervised interrogation procedure they favor, "courtsmight well choose" to establish "a prophylactic rule that nopolice-station confession by a defendant is ever allowed in, unlessvolunteered by a suspect in the presence of an on-duty defense lawyer orombudsman in the police station."(13) The courts might choose tocreate the prophylactic rule Amar and Lettow suggest, but they alsomight choose not to create such a rule.

Although I think it quite unlikely that an absolute prohibitionagainst all police station confessions would ever go into effect, let ussuppose that somehow it did. What then? "[T]his strictregime," Amar and Lettow assure us, "would create powerfulincentives to conduct interrogation before magistrates rather than inpolice stations."(14)

I think not - at least not if Amar and Lettow's way of thinkingabout the Fifth Amendment were adopted. Amar and Lettow can't haveit both ways. If, as they maintain, "[o]nly the defendant'scompelled testimony should be protected by the [Fifth]Amendment"(15) - a view upon which their proposal depends - thenonly the coerced or otherwise improperly obtained stationhouseconfessions or incriminating statements, not their "fruits, "would be protected by the Fifth Amendment.(16)

But how can we expect to discourage the police from proceeding in anirregular manner in the stationhouse when they know that any evidencetheir improper questioning brings to light will be admissible? Unlessthe courts bar the use of the often-valuable evidence derived from aninadmissible confession, as well as the confession itself, there willremain a strong incentive to resort to forbidden interrogationmethods.(17)

Implementing the Amar-Lettow judiciary supervised interrogation planwould be no small undertaking. As Judge Friendly said of a similarproposal, "the system would be fully effective only if an adequatesupply of magistrates and defenders was provided on a 24-hours-a-day,7-days-a-week basis."(18)

I assume that the Amar-Lettow proposal, if implemented, would takethe form of a statute. I assume, further, that at some point the Courtwould have to pass on the constitutionality of such a statute. If themood of the country were such that the Amar-Lettow proposal were to beenacted into law, and if the attitude of the Court were such that itwould uphold the statute, I very much doubt that the Supreme Court orany state court would choose to mitigate the impact of the statute byexcluding all stationhouse confessions or incriminating statements, eventhose said to be volunteered in the absence of an on-duty defenselawyer.

Not even the otherwise-bold Miranda Court was bold enough to requirelaw enforcement officers, whenever feasible, to make audio or videorecordings of how the now-familiar warnings are delivered, how thesuspect responds, or how the questioning proceeds.(19) No doubt theWarren Court was aware that. such a requirement would have added fuel tothe criticism that it was overstepping its institutional authority -that it was "legislating."

But what Amar and Lettow suggest might happen - a judicially imposedban against the use of all confessions obtained in the police station,even those the police claim were "spontaneous" or"volunteered," even those the police tape-recorded - wouldconstitute a more naked exercise of judicial control over policepractices than the restrictions the Miranda Court declined to impose onthe police for institutional reasons. Even a Justice who favored such asweeping prohibition as a matter of policy would likely balk at imposingit as a matter of constitutional law.

If the political-legal climate were such that the Amar-Lettowproposal for a judicially supervised interrogation procedure - enforcedby the contempt power - were enacted into law and found constitutional,legislatures and courts would most probably favor an alternative,back-up scheme suggested by Amar and Lettow, one the authors consider"compatible" with their general approach:

[E]ach suspect in custody could be told that he must be broughtbefore a magistrate and a lawyer within a short time (say, five hours)and that he has an absolute right to remain silent until then; but heshould also understand that if he stands mute until then, a later jurycan be told of his pre-magistrate, pre-lawyer silence, and might viewmore skeptically any story he later tries to offer at trial.(20)

This does not look like "an absolute right to remainsilent" to me. (Evidently some absolute rights are more absolutethan others.) If I understand this proposal correctly, a suspect wouldbe told he has an absolute right to remain silent, but also that if heexercises this right and his case goes to trial, his silence can be usedagainst him. Can a police officer be trusted to explain to a suspect howhe can have a right to remain silent and still have his silence usedagainst him? And even if a police officer does his very best to explainthis, can the average suspect be expected to understand it?(21)

When we put these two pieces of their proposal together, Amar andLettow's conception of criminal procedure looks like this: (i)police tell the suspect, before they bring him to a magistrate, that ifhe does not speak to them, his silence may be used against him if hiscase goes to trial; and (ii) the suspect is told, when he gets to themagistrate, that if he does not provide answers, even though theseanswers may lead the police to extrinsic evidence that can be used toconvict him, he will be held in contempt. That's quite a package -if you happen to be a police officer or a prosecutor.

I doubt that the practical problems involved in implementing theirproposal would matter much to Amar and Lettow. Their article focusesless on the remaking of criminal procedure and more on the reconceptionof constitutional law. But even if their specific proposals are notimplemented, the Amar-Lettow view of the narrow scope of the protectionprovided by the Fifth Amendment would still have far-reachingconsequences for criminal procedure. It would enable the government tohold a witness in contempt for refusing to reveal leads that could, inturn, uncover evidence that could be used later to convict him. It wouldenable the police to make use of the often-valuable fruits of a coercedconfession even though they extracted the confession for the verypurpose of discovering the existence and location of damaging physicalevidence. In short, the Amar-Lettow view would profoundly change the wayin which the government can exert its power against criminal suspects.

As the basis for giving the government this enhanced power and as thefoundation for their specific proposal for the judicially supervisedcompulsion of statements that would reveal sources of information thatcould later be used to convict a defendant, Amar and Lettow maintainthat "a person's (perhaps unreliable) compelled pretrialstatements can never be introduced against him in a criminal case butthat reliable fruits of such statements virtually always canbe."[22] In this essay, I shall examine and respond to thisargument, paying special attention to Amar and Lettow's claim thatcurrent doctrines or trends support their contention.

I. Reliability as a "First Principle"

At the center of Amar and Lettow's argument is the idea that theprivilege against self-incrimination is concerned with reliability. Inarguing for the admissibility of "the physical fruits" ofcoerced confessions because they are "quite reliable and oftenhighly probative,"(23) Amar and Lettow observe:

[C]ourts and commentators have stressed that coerced statements areunreliable, and that the privilege therefore serves the goal ofreliability. This is indeed a worthy goal, and courts have increasinglyemphasized it over the past three decades. But if this is thetouchstone, again the scope of immunity today is too broad.(24)

I think it far more accurate to say that in recent decades courts andcommentators have downplayed the unreliability of a coerced or"involuntary" confession as the reason for excluding it.(25) Ibelieve that the various judicial opinions, books, and articles I shallquote from in the next few pages establish inescapably that this is so.Consequently, the "first principles" that courts have definedfor the Fifth Amendment are quite different from the ones Amar andLettow assert.

A. The Reasons for Excluding Coerced Confessions

To be sure, the "voluntariness" test started out as a ruleprotecting against the danger of untrustworthy confessions. It is alsotrue that for a long time thereafter the rule that a confession wasadmissible so long as it was "voluntary" was more or less analternative statement of the rule that a confession was admissible solong as it was free of influence that made it unreliable or"probably untrue."[26]

During the period roughly extending to the 1950s, physical evidenceuncovered as a result of an involuntary confession was, unsurprisingly,admissible - because the derivative evidence, unlike the confession, wasreliable.(27) Indeed, "it was generally held that if the extrinsicevidence corroborated the confession ... even the confession could beadmitted."(28)

This practice may jolt modern students of criminal procedure. But thecourts that followed it had a certain logic on their side. Amar andLettow ask why we should exclude the physical fruits of a coercedconfession when these fruits are quite reliable. But if, as they assert,reliability is the touchstone, why exclude the coerced confession itselfwhen corroborating evidence produced by the confession dispels anydoubts about the truth of what the defendant had confessed?

Untrustworthiness is no longer the sole, or even the principal,reason for excluding coerced or involuntary confessions. In the threedecades between the time the Supreme Court decided its first FourteenthAmendment due process coerced confession case, Brown v. Mississippi,(29)and the time it handed down Miranda v. Arizona,(30) the Court continuedto talk of "voluntary" and "involuntary" confessions- but the meaning of these elusive terms changed quitesignificantly.(31)

As Roger Traynor, then Chief Justice of the California Supreme Court,asserted, "[e]ven the earliest [Fourteenth Amendment involuntaryconfession] cases adumbrate an enlarged test of due process transcendingthe simple one of untrustworthiness."(32) By the 1950s it hadbecome fairly clear that the Court was applying two constitutionalstandards for the admissibility of confessions. Some commentatorsdescribed these standards as "a privilege against evidenceillegally obtained" and "an overlapping rule ofincompetency.(33) Others referred to them as "a large element ofofficial discipline" and a concern over credibilityrisks."(34) Still others identified a "police methods"test and a "trustworthiness" test.(35)

As the voluntariness test continued to evolve in the middle part ofthe twentieth century, the results reached by the Court seemed toreflect less a concern with the reliability of a particular confessionthan disapproval of police interrogation tactics considered offensive orsubject to serious abuse.(36) On the eve of Miranda, as Illinois SupremeCourt Justice Walter Schaefer noted at the time, the concern aboutunreliability "still exert[ed] some influence in coerced confessioncases ... but it ha[d] ceased to be the dominantconsideration."(37)

The most emphatic articulation of the view that untrustworthiness wasno longer the principal reason for excluding a coerced or involuntaryconfession may be found in Rogers v. Richmond.(38) In that case thedefendant had confessed to a murder only after the police had threatenedto bring his ailing wife to the stationhouse for questioning. The statetrial judge took the position that a police stratagem "`which hasno tendency to produce a confession except one in accordance with thetruth does not render the confession inadmissible,'"(39) andthe defendant's confession was admitted.

In the course of overturning the conviction, the Supreme Courtemphasized that "a legal standard which took into account thecircumstances of [a confession's] probable truth or falsity"did not satisfy the Due Process Clause. The Court held that theadmissibility of a confession should be determined by focusing onwhether the police interrogation methods were such "as to overbearpetitioner's will to resist and bring about confessions not freelyself-determined - a question to be answered with complete disregard ofwhether or not petitioner in fact spoke the truth."(40)

Writing for a 7-2 majority, in one of the last of his many opinionson the subject, Justice Frankfurter observed more generally:

Our decisions under [the Fourteenth] Amendment have made clear thatconvictions following the admission into evidence of confessions whichare involuntary . . . cannot stand. This is so not because suchconfessions are unlikely to be true but because the methods used toextract them offend an underlying principle in the enforcement of ourcriminal law: that ours is an accusatorial and not an inquisitorialsystem .... [I]n many of the cases in which the command of the DueProcess Clause has compelled us to reverse state convictions involvingthe use of confessions obtained by impermissible methods, independentcorroborating evidence left little doubt of the truth of what thedefendant had confessed. Despite such verification, confessions werefound to be the product of constitutionally impermissible methods intheir inducement. Since a defendant had been subjected to pressures towhich, under our accusatorial system, an accused should not besubjected, we were constrained to find that the procedures leading tohis conviction had failed to afford him that due process of law whichthe Fourteenth Amendment guarantees.(41)

I share the view that Justice Frankfurter's opinion in Rogers"sound[ed] the death knell of the rule of"trustworthiness.'"(42) I agree, too, that Rogers"made certain what had been strongly intimated in several earliercases ... namely, that the due process exclusionary rule for confessions(in much the same way as the Fourth Amendment exclusionary rule forphysical evidence) is also intended to deter improper policeconduct."(43)

If courts permitted the use of physical evidence discovered by meansof an involuntary confession as a corollary (I almost said"fruit") of the once-dominant view that involuntaryconfessions are excluded because of their presumed untrustworthiness -not because of any wrong done to the defendant or any lawlessness on thepart of the police - it is hard to see how or why the rule permittingthe use of such evidence should survive the repudiation of thetrustworthiness rationale for excluding confessions. As the commentaryto the American Law Institute's Model Code of Pre-ArraignmentProcedure observed twenty years ago:

In recent years ... the Supreme Court has made it clear that coercedconfessions must be excluded not only because of their unreliability,but also because the methods used to obtain such confessions areintolerable and involve compulsion prohibited by the Constitution.... Inview of this expanded basis for excluding confessions, the justificationfor the automatic admission of all "fruits" becomes greatlyattenuated. for the use of an illegally obtained confession constitutescompelled self-incrimination, so may the use of evidence derived fromthe confession. And, if the purpose of the exclusionary rule is to deterunacceptable police behavior, then the exclusion of fruits may also benecessary to achieve this deterrence. There would seem to be no rationalbasis for distinguishing between products of an illegal search asopposed to products of an illegally obtained statement in terms ofapplicability of the fruits doctrine.(44)

Justice Frankfurter "often adjured us to attend well to thequestion: `On the question you ask depends the answer youget.'"(45) When Amar and Lettow assume that reliability is thetouchstone for the admissibility of confessions and ask, "Whyexclude the physical fruits of confessions, when these are quitereliable ... ?"(46) they get the answer they want - but onlybecause they ask the wrong question. And they ask the wrong questionbecause they start from the wrong premise.

What are the right questions? I submit they are questions such asthese: If we prohibit the use of coerced confessions in large measurebecause the police who obtain such confessions "have engaged inforbidden conduct of a most serious kind and will not be permitted tokeep the advantage of it,"(47) why should the government be allowedto keep the advantage of the often valuable physical evidence derivedfrom such confessions? If condemnation and deterrence of offensivepolice interrogation methods constitute a principal reason for barringthe resulting confessions - the so-called police methods test forexcluding confessions - is disapproval or discouragement ofobjectionable police methods likely to be taken seriously by lawenforcement officials or the public if physical evidence derivedindirectly from such methods is used to convict a defendant?

Justice Frankfurter, the leading proponent of the police methods testfor admitting confessions(48) - an approach that gained ascendancy atleast thirty-five years ago(49) - once remarked, "To remove theinducement to resort to [interrogation methods that violate `fundamentalnotions of fairness and justice'] this Court has repeatedly denieduse of the fruits of [such] illicit methods."(50) JusticeFrankfurter was speaking of the "first generation" fruits ofillicit police interrogation methods (the coerced confessionsthemselves), not the "second generation" fruits (the evidencederived from such confessions).(51) But why shouldn't the policemethods rationale apply to second generation fruits as well? Assumingthat the secondary fruits of intolerable police interrogation methodswould not have been discovered in any other way, why shouldn't theybe barred along with the primary fruits, or the confessions themselves?

As Amar and Lettow note, the admissibility of physical evidencederived from a coerced confession is an issue that, surprisingly, theCourt has never explicitly addressed.(52) But a year after Rogers washanded down, the Supreme Court of California did address it - andconcluded that "the reason for the common law rule permitting theintroduction of real evidence discovered by means of an involuntaryconfession ... must now be deemed constitutionallyindefensible."(53) The court explained:

It appears to us ... that if it offends "the community'ssense of fair play and decency" to convict a defendant by evidenceextorted from him in the form of an involuntary confession, that senseof fair play and decency is no less offended when a defendant isconvicted by real evidence which the police have discovered essentiallyby virtue of having extorted such a confession. If the one amounts to adenial of a fair trial and due process of law, so must the other. If theone is the inadmissible product of "police procedure which violatesthe basic notions of our accusatorial mode of prosecuting crime,"so must the other be. It does not appear that we can draw aconstitutionally valid distinction between the two.(54)

Amar and Lettow might retort that whatever the Supreme Court had tosay about the "due process" - "totality ofcircumstances" - "voluntariness" test in the 1950s andearly 1960s no longer matters because in the 1964 case of Malloy v.Hogan,(55) performing "what might have seemed to some a shotgunwedding of the privilege [against self-incrimination] to the confessionsrule,"(56) the Court informed us that "wherever a questionarises whether a confession is incompetent because not voluntary, theissue is controlled by [the self-incrimination] portion of the FifthAmendment."(57)

But if the privilege against self-incrimination, rather than generaldue process, controls the admissibility of the physical fruits of acoerced confession, this should provide no comfort to Amar and Lettow.Ever since the 100-year-old Counselman case was decided, the Court hasviewed the privilege against self-incrimination as prohibiting indirector derivative use, as well as direct use, of compelled utterances.(58)Thus, whether one views (i) a ban on the derivative use of coercedconfessions as a corollary of the police methods rationale for excludingconfessions; or (ii) the "fruit of the poisonous tree"doctrine as applying to violations of the Fifth Amendment as well as theFourth; or (iii) the Fifth Amendment exclusionary rule as containing itsown "built-in" poisonous tree doctrine - a plausible way, Ithink, of reading Counselman and its progeny(59) - the result is thesame. The physical fruits of a coerced confession are, or should be,excluded.

General due process may still govern the admissibility of physicalevidence derived from coerced confessions. As the Court pointed out twodecades after Malloy and Miranda: "even after holding that theFifth Amendment privilege against compulsory self-incrimination appliesin the context of custodial interrogations and is binding on the States,the Court has continued to measure confessions against the requirementsof due process."[60] In measuring confessions against therequirement of due process, moreover, the post-Miranda Court has leftlittle doubt that the primary consideration is not the reliability ofthe challenged confession but the legality and acceptability of thepolice interrogation methods that elicited it. The Burger and RehnquistCourts may not have given the defense-minded a great deal to cheerabout, but they have reaffirmed and reinvigorated the police methodsrationale for excluding coerced or "involuntary" confessions.

Miller v. Fenton(61) rejected the argument that a state courtdetermination of a confession's voluntariness is a factual issuewithin the meaning of the rule providing that state courts'findings of facts shall be presumed to be correct in federal habeascorpus proceedings. Whether the challenged confession was obtained"in a manner that comports with due process,"(62) is, rather,"a legal question requiring independent federaldetermination."(63) Justice O'Connor, who wrote the opinion ofthe Court, looked back on various cases that had banned the use ofcoerced confessions and described them as holding that "certaininterrogation techniques, either in isolation or as applied to theunique characteristics of a particular suspect, are so offensive to acivilized system of justice that they must be condemned under the DueProcess Clause of the Fourteenth Amendment."(64)

Michigan v. Tucker(65) dismayed supporters of Miranda because theCourt sharply distinguished between the "procedural rules" or"prophylactic standards" laid down in Miranda and"genuine" or "actual" infringements of the FifthAmendment(66) - thus "clearly sever[ing Miranda] from the privilegeagainst compelled self-incrimination."(67) But when then JusticeRehnquist, the author of the Tucker opinion, looked back at thepre-Miranda voluntariness doctrine and explained why coerced orinvoluntary confessions were excluded from evidence, he employed what Ithink it fair to call police methods rationale terminology:

In state cases the Court applied the Due Process Clause of theFourteenth Amendment, examining the circumstances of interrogation todetermine whether the processes were so unfair or unreasonable as torender a subsequent confession involuntary. Where the state'sactions offended the standards of fundamental fairness under the DueProcess Clause, the State was then deprived of the right to use theresulting confessions in court.(68)

More recently, in Colorado v. Connelly,(69) a case upholding theadmissibility of a confession made by a suspect who was obeying the"voice of God," Chief Justice Rehnquist, again speaking forthe Court, underscored the absence of police wrongdoing and dismissedthe possibility that the respondent's confession might be"quite unreliable": "[T]he cases considered by this Courtover the 50 years since Brown v. Mississippi have focused upon thecrucial element of police overreaching."(70)

The Chief Justice added:

[S]uppressing respondent's statements would serve absolutely nopurpose in enforcing constitutional guarantees. The purpose of excludingevidence seized in violation of the Constitution is to substantiallydeter future violations of the Constitution....

... A statement rendered by one in the condition of respondent mightbe proved to be quite unreliable, but this is a matter to be governed bythe evidentiary laws of the forum and not by the Due Process Clause ofthe Fourteenth Amendment. "The aim of the requirement of dueprocess is not to exclude presumptively false evidence, but to preventfundamental unfairness in the use of evidence, whether true offalse."(71)

Although the Connelly Court's view of the dueprocess-voluntariness test strengthens my argument, I must say I believethe Court overstated the police methods rationale in that case. I sharethe view that "a total deconstitutionalization of traditionallyimportant reliability issues is unjustified."(72) Nevertheless, theConnelly case is striking evidence of the subordinate role reliabilityhas come to have in the due process confession cases.

Amar and Lettow's argument for admitting the physical fruits ofcoerced confessions makes sense if, as they assert, the reliability orunreliability of a confession is the touchstone for its admissibility.But how can they make that claim in light of the strong language to thecontrary in the much-quoted Rogers case - a case they never mention?Amar and Lettow assert further that in recent decades the courts have"increasingly emphasized" the "reliability"rationale for the admissibility of confessions.(73) How they can makethat claim in the face of Connelly - another case they never mention -also escapes me.

At first glance, the Amar-Lettow approach to coerced confessionslooks like a reasonable compromise: keep out the confession itself, butlet in the valuable evidence the confession turns up. However, once weunderstand that the dominant consideration in coerced confession casesis not the exclusion of unreliable evidence but disapproval anddiscouragement of the unacceptable police methods that produced it, theAmar-Lettow "compromise" makes little sense.

According to Professors Dershowitz and Ely, "there is no reasonto expect an exclusionary rule to deter deliberate violations unless ithas eliminated all significant incentives toward that conduct."(74)But if the Amar-Lettow approach were to prevail, the substantial chancethat objectionable interrogation methods would lead to the discovery ofvaluable evidence would furnish police interrogators with a significantincentive to utilize such methods.(75)

Amar and Lettow might dismiss this point as reflecting an overlycynical view of police decisionmaking. But, as Professors Dershowitz andEly have noted, prohibitions against the use of illegally seizedevidence and coerced confessions rest on the assumption that policeofficers "will act on the basis of a calculation of advantagesrather than out of desire to follow the law."(76) Otherwise, therewould be little or no need for exclusionary rules.

Short of admitting coerced confessions in every case, there are twoways to encourage the police to resort to unconstitutional interrogationmethods: (i) let them know that if and when coerced confessions arecorroborated by reliable physical evidence, the confessions themselvesare rendered admissible; or (ii) let them know that even though thecoerced confessions themselves cannot be admitted, the reliable evidencethese confessions bring to light can be. Amar and Lettow reject thefirst alternative - or accept the fact that the Fifth Amendment requiresrejection of the first alternative - yet they adopt the second. Thesecond alternative, however, is almost as inconsistent with the policemethods rationale for excluding confessions as the first. The secondalternative enables the police to accomplish indirectly what they couldnot achieve directly. The second alternative puts police who engage inforbidden interrogation methods in a better position than they wouldhave been in if they had obeyed the law.(77)

As noted earlier, there was a time when, if the reliable evidencebrought to light by a coerced confession corroborated the confession,the courts admitted both the confession and the derivative evidence.Such an approach, at least, was internally consistent. Amar andLettow's approach is not.

If, as the Court has told us again and again, the touchstone for theadmissibility of confessions is not unreliability(78) but theoffensiveness of the police methods that produced the confession, thenneither the confession produced by such methods nor the evidence derivedfrom the confession should be admitted. The reliability of thederivative evidence should no more bleach its stains of illegality thanshould the reliability of the confession.

We are not talking about violations of what the Court has calledMiranda's nonconstitutional prophylactic procedures.(79) We aretalking about confessions produced by police methods that "offendthe community's sense of fair play and decency"(80) - aboutinterrogation techniques "so offensive to a civilized system ofjustice that they must be condemned under the Due ProcessClause."(81)

Unfortunately, more than sky years after the Wickersham Commissionexposed the ugly facts of the "third degree,"(82)"well-documented evidence of interrogation violence ... persists tothis day."(83) We should make every effort to stamp out suchpractices. We should formulate rules that maximize the possibility thatsuch practices will become a thing of the past.

The Amar-lettow proposal does not do that. What they offer is ahalf-hearted exclusionary rule - a rule that sends conflicting messagesto law enforcement officers.

B. The Need To Bar the Physical Fruits of a Constitutional

Violation: Variations on the Rochin Case

Although Rochin v. California,(84) the famous (or infamous)"stomach pumping" case, did not involve any derivativeevidence, I think it provides a useful point of departure forunderscoring the need to exclude the physical fruits of a constitutionalviolation. The case arose as follows: Upon entering the defendant'shome illegally and forcing open the door to his bedroom, police officersnoticed two capsules lying on a bedside table. When asked about thecapsules, the defendant placed them in his mouth. The police struggledto open the defendant's mouth and remove what was there, but thedefendant managed to swallow the capsules. Frustrated by thedefendant's attempts to thwart their efforts, the police handcuffedhim and took him to a hospital, where an emetic solution was forced intohis stomach against his will. This "stomach pumping" producedthe two capsules, which contained morphine. Largely on the basis of thisevidence, the defendant was convicted of a narcotics violation.(85)

Without a dissent,(86) the Court held that the conviction "ha[d]been obtained by methods that offend the Due Process Clause"(87) -by methods that disregard "certain decencies of civilizedconduct" and "offend 'a sense of justice."(88) To"sanction" the police misconduct that produced the morphinecapsules that led to defendant's conviction, observed JusticeFrankfurter, who wrote the opinion of the Court, "would be toafford brutality the cloak of law."(89)

Let us change the facts of Rochin as follows:

When the police illegally enter Rochin's home and burst into hisbedroom, they observe two keys lying on a bedside table. The defendantgrabs the keys and puts them in his mouth. A struggle ensues, but thedefendant manages to swallow the keys. The police ultimately retrievethem, however, by taking the defendant to a hospital, where an emetic isforced into his stomach.

The police spot the word Cessna on each of the keys. One officerrecalls that Cessna is the name of a popular two-engine plane. This isthe first inkling the police have that the defendant owns or flies anairplane. The police demand to know where the plane is located andwhether it contains any drugs.

Frightened by, and still shaken from, the "stomach pumping"and the rough tactics employed by the police earlier in his bedroom, thedefendant reveals the location of the plane and admits that it containsa large quantity of drugs. On the basis of this information, the policeobtain a warrant, search the plane, and find the drugs.(90) Are thedrugs admissible in evidence against the defendant?

I think it fairly clear that the Court would not admit the drugsobtained under the foregoing circumstances.(91) I find it hard tobelieve that a court that would exclude the evidence on the facts ofRochin would admit the derivative evidence on the facts of thehypothetical.

In the hypothetical case, no less than in the Rochin case itself, theconviction was brought about "by methods that offend 'a senseof justice."' In the hypothetical case, no less than inRochin, to admit the physical evidence would be to "sanction"the brutal conduct or afford it "the cloak of law." In thehypothetical case, no less than in Rochin, to admit the evidence foundin the defendant's airplane would be to encourage the police to actthe same way - or at least not discourage them from doing so - the nexttime the occasion arose "on the chance that all will endwell."(92)

Now, let us change the facts of Rochin one more time. Consider thefollowing:

The police lawfully arrest the defendant and take him down toheadquarters for questioning. The police inform the defendant that theyhave reason to believe that he is in possession of a large quantity ofdrugs - which is true - and they demand to know where he is keeping thedrugs. The defendant denies any involvement in the drug trade. When hepersists in his denial, a police officer puts a pistol to his head andthreatens to pull the trigger unless he reveals the hiding place of thedrugs.(93) Or the police strip off the defendant's clothes and keephim naked for several hours.(94) Or, aware that the defendant'swife is confined to a wheelchair, the police threaten to bring her downto the stationhouse for questioning unless he"Cooperates."(95) Or relays of officers question the defendantfor many hours without affording him an opportunity for sleep.(96)

At this point, the defendant confesses that he is a drug dealer andthat he has stored a large quantity of drugs in his Cessna airplane. Healso reveals the location of the plane. On the basis of thisinformation, the police obtain a warrant, search the plane, and find thedrugs.(97) Are the drugs admissible in evidence against the

How, if at all, is the second hypothetical case different from thefirst? In both hypotheticals, to admit the evidence would be to"sanction" police methods that "offend 'a sense ofjustice' " and to afford these methods "the cloak oflaw."

In the first hypothetical, constitutionally obnoxious police methodsforced the defendant to vomit up the keys that led the government to hisplane and to the incriminating evidence. In the second hypothetical,constitutionally obnoxious police methods forced the defendant to makethe confession that, in effect, provided the government with "thekeys" to his plane. Why shouldn't the evidentiary consequencesthat flow from the violation in the second hypothetical be the same asthose that flow from the violation in the first?

In the first hypothetical, the police forcibly extracted the"direct" or "primary" evidence from thesuspect's stomach, whereas in the second hypothetical, it might besaid, they forcibly extracted it from the suspect's mind.98 Whyshould there be a constitutional distinction? Why should the"secondary" or "derivative" evidence be excluded inone case but not the other?

One might say that pumping a suspect's stomach is more shockingthan putting a gun to a suspect's head to get him to confess orthreatening to bring a suspect's ailing wife to the police stationto get him to "cooperate." How so is not at all clear to me.But why bother to dwell on the point? In each instance the policeviolated a right protected by the Due Process Clause - a right"basic to a free society" and "therefore implicit `in theconcept of ordered liberty. 99 That is about as bad a thing as can besaid of police conduct. Surely we are not going to say that when thepolice coerce a suspect into confessing they violate rights "basicto a free society," but when they pump a suspect's stomachthey violate rights "very basic to a free society."(100)

One might retort that not all coerced confessions involve brutalityor physical violence. That is true. As the Court pointed out thirty-fiveyears ago, "coercion can be mental as well as physical, and ... theblood of the accused is not the only hallmark"(101) of a coercedconfession. But what follows from this?

It is troubling enough, as Justice Stevens has noted, that the Courthas attempted to distinguish between actual coercion and irrebuttablypresumed coercion (Miranda violations).(102) Are we now going to attemptto fashion a distinction between mildly coerced confessions andblatantly coerced ones? A coerced confession is a coerced confession isa coerced confession. Regrettably, a majority of the present Court hasdrawn a distinct line between what it calls "mere Mirandaviolations" and coerced confessions (or actual infringements of theFifth Amendment itself).(103) But all coerced confessions areconstitutionally obnoxious, and all are violations of due process.

A final point about Rochin. To use that case as a basis fordiscussion of coerced confessions and the applicability of the poisonoustree doctrine to such confessions strikes me as only fitting and proper,because in excluding the evidence produced by the stomach pumping, theCourt relied very heavily on the analogy to coerced confessions. Ofcourse, if - as Amar and Lettow still maintain some forty years later -the reason for excluding coerced confessions is their unreliability, theRochin Court's analogy to coerced confessions would have been badlyflawed. After all, what could be more trustworthy than the evidencefound in a person's stomach? It is worth recalling how the RochinCourt dealt with this point:

It has long since ceased to be true that due process of law isheedless of the means by which otherwise relevant and credible evidenceis obtained. This was not true even before the series of recent casesenforced the constitutional principle that the States may not baseconvictions upon confessions, however much verified, obtained bycoercion. These decisions . . . are only instances of the generalrequirement that States in their prosecutions respect certain decenciesof civilized conduct. Due process of law ... [means] that convictionscannot be brought about by methods that offend "a sense of justice...."

To attempt in this case to distinguish between what lawyers call"real evidence" from verbal evidence is to ignore the reasonsfor excluding coerced confessions. Use of involuntary verbal confessionsin State criminal trials is constitutionally obnoxious not only becauseof their unreliability. They are inadmissible under the Due ProcessClause even though statements contained in them may be independentlyestablished as true. Coerced confessions offend the community'ssense of fair play and decency.(104)

II. Challenging Amar and Lettow's Claim that Current

Doctrines and Trends Support Their Approach

to the Fifth Amendment

Amar and Lettow recognize that their approach to the Fifth Amendment"may at first glance seem like a startling break from currentinterpretations."(105) They maintain, however, that their approachbecomes much more plausible when viewed in light of various"current doctrines or trends."(106) In this regard, they relyheavily on Schmerber v. California,(107) which, they tell us,"emphasize[d] the distinction between testimony and physicalevidence"(108) and "gave rise to a sweeping assertion of theneed to let in reliable physical evidence."(109) They also contendthat the Court is "now chipping away at use plus use-fruitsimmunity in the context of Miranda warnings"(110) and that suchimmunity "should be brought into line with JusticeO'Connor's suggested approach in Quarles for `mere'Miranda violations."(111) Finally, they rely heavily on thewritings of one of the greatest judges of our time, Henry Friendly, whourged the admissibility of physical evidence derived from Mirandaviolations. In the pages ahead, I shall argue that neither Amar andLettow's reliance on Schmerber, nor their reliance on JusticeO'Connor's views, nor their reliance on Judge Friendly'swritings is well founded.

A. Does Schmerber Support Amar and Lettow?

In urging the admissibility of physical evidence derived fromcompelled statements, Amar and Lettow place considerable reliance onJustice Brennan's opinion for the Court in Schmerber v.California.(112) I have great difficulty seeing why.

In Schmerber, the Court held that requiring a motorist suspected ofdrunken driving to submit to the withdrawal of blood for chemicalanalysis did not violate the privilege against compulsoryself-incrimination. "The distinction which has emerged,"observed Justice Brennan, "is that the privilege is a bar againstcompelling `communications' or `testimony,' but thatcompulsion which makes a suspect or accused the source of `real orphysical evidence' does not violate it."(113) In the instantcase, he emphasized, the withdrawal of blood did not implicate thedefendant's "testimonial capacities."(114)

As I read the Schmerber opinion, it holds - unremarkably(115) - thatthe withdrawal of blood, and more generally the acquisition ofnontestimonial evidence, standing alone - that is, untainted by anyantecedent Fifth Amendment violation - does not offend the privilegeagainst self-incrimination. That's all it holds.

The Schmerber Court did not write on a clean slate. It reaffirmed theapproach taken in a 1910 Supreme Court case, Holt v. United States.(116)In Holt, the Court was taken aback by the contention that compelling aperson to put on a blouse to determine whether it fit him violated theprivilege. It dismissed the argument as "based upon an extravagantextension of the Fifth Amendment."(117) The privilege againstself-incrimination, explained Justice Holmes, "is a prohibition ofthe use of physical or moral compulsion to extort communications fromhim, not an exclusion of his body as evidence when it may bematerial."(118)

1. The Limited Scope of Schmerber

Amar and Lettow highlight the distinction Schmerber and Holt drewbetween physical evidence and testimonial evidence in order to bolstertheir argument that only the defendant's compelled utterances - butnot their fruits - should be protected by the Fifth Amendment, and thusonly his compelled utterances, not their fruits, should be excluded froma criminal case. They tell us, almost breathlessly, that Schmerber"gave rise to a sweeping assertion of the need to let in reliablephysical evidence, via a definition of witness that drew a sharpdistinction between words and physical evidence."(119) Theymaintain that Schmerber provides support for their view that only aperson's compelled utterances - a coerced confession or testimonyobtained in exchange for a grant of immunity - should be excluded, notphysical evidence derived from such utterances as well.(120)

At one point, Amar and Lettow call Schmerber "an absolutelycentral case today - the rock on which a great many cases and aconsiderable amount of crime detection policy have beenbuilt."(121) One might say that it is also one of the rocks onwhich the Amar-Lettow argument is built.

This may surprise Amar and Lettow, but I have no quarrel withSchmerber or Holt. Moreover, and I suspect that this will surprise Amarand Lettow even more, I do not think that Schmerber or Holt supporttheir position - because those cases have nothing to say about the useof physical evidence derived from compelled testimony or coercedconfessions.

Schmerber tells us that the privilege does not protect directlyagainst nontestimonial compulsion. That's all. It has nothing tosay about whether the acquisition of blood tests or other physicalevidence obtained as a result of compelled utterances should be excludedin order to put a curb on the indirect use of Fifth Amendmentviolations.(122)

Neither in Schmerber nor in Holt did the police violate aconstitutional guarantee at any point along the way. Neither inSchmerber nor in Holt was the defendant compelled to discloseinformation that might lead to damaging physical evidence. Thus therewas no need to determine whether any physical evidence was tainted by aprior constitutional violation. There was no derivative evidence or"fruit of the poisonous tree" to be considered, because therewas no "poisonous tree."

We would do well to read Justice Brennan's opinion in Schmerberto mean exactly what he said:

Petitioner's testimonial capacities were in no way implicated;indeed, his participation, except as a donor, was irrelevant to theresults of the test, which depend on chemical analysis and on thatalone. Since the blood test evidence ... was neither petitioner'stestimony nor evidence relating to some communicative act or writing bythe petitioner, it was not inadmissible on privilege grounds.123

A quarter-century later, writing for a majority of the Court, JusticeBrennan - the author of the Schmerber opinion - looked back on Schmerberas a case in which compelling a suspect to provide a blood sample"was outside of the Fifth Amendment's, protection, not simplybecause the evidence concerned the suspect's physical body, butrather because the evidence was obtained in a manner that did not entailany testimonial act on the part of the suspect."(124)

Suppose the Chief of Police informs a murder suspect that he willturn him over to a lynch mob unless he reveals where he hid the clotheshe wore at the time of the crime,(125) and the suspect then reveals thehiding place of his or his victim's blood-stained blouse. Orsuppose that after being subjected to a lengthy interrogation while heis physically incapacitated in an intensive care unit, a seriouslywounded suspect finally tells the police where he hid his or hisvictim's blood-stained blouse.(126) In the hypotheticals I haveposed, can the government compel the suspect to model his blouse? Canthe government analyze the blood found on the victim's blouse,establish that it matches the defendant's blood, and offer thesefindings in evidence? These questions strike me as very different thanthe ones presented in Schmerber and Holt.

If Holmes were stir on the Court and the defendant contended ineither of the hypothetical cases that the blood-stained blouse or theblood test results should be excluded because they had been obtained by"exploitation" of a coerced confession,(127) I very much doubthe would dismiss that argument as based on an extravagant extension ofthe Fifth Amendment. After all, it was Holmes who remarked, a decadeafter Holt, that "[t]he essence of a provision forbidding theacquisition of evidence in a certain way is that not merely evidence soacquired shall not be used before the Court but that it shall not beused at all."(128)

To be sure, Justice Holmes made that remark, for a majority of theCourt, in a search and seizure case. But why is his reasoning any lessapplicable to a Fifth Amendment case? Are the fruits of a coercedconfession any less stained with illegality than the fruits of a FourthAmendment violation?

As Justice Brennan said for the Court sixty years after Holmes spokeabout the essence of a provision forbidding the acquisition of evidence,"the exclusionary sanction applies to any `fruits' of aconstitutional violation - whether such evidence be ... physical[evidence or] ... items observed or words overheard."(129) And if,as Professors LaFave and Israel have put it, the coerced confessiondoctrine is, inter alia, intended to deter improper police conduct"in much the same way as the Fourth Amendment exclusionary rule forphysical evidence,"(130) why should the Court not apply thepoisonous tree doctrine to coerced confessions as it has done in searchand seizure cases?

Moreover, the Fifth Amendment, which prohibits a person from beingcompelled to be a witness against himself, has its own exclusionaryrule, which, in turn, has its own "built-in" poisonous treedoctrine.(131) What else did Counselman mean when it told us - longbefore the "fruit of the poisonous tree" doctrine acquired itscolorful name, and long before it emerged in the search and seizurecontext - that the Fifth Amendment protects a person "from beingcompelled to disclose the circumstances of his offence [orl the sourcesfrom which, or the means by which, evidence of its commission, or of hisconnection with it, may be obtained ... without using his answers asdirect admissions against him?"(132)

Amar and Lettow tell us that "[w]itnesses testify" but"blood does not" and that "we do not usually conceive ofblood as `knowing' anything."(133) This is a valid point whenwe deal with constitutionally uncontaminated blood test evidence, butwhether blood "knows" or "speaks" is beside thepoint, I submit, when we talk about blood test evidence that owes itsdiscovery to, and is tainted by, a prior violation of the FifthAmendment.

As the foregoing hypotheticals illustrate, when we talk about thefruits of a Fifth Amendment violation, we are talking about cases wherea person - if not his blood - did know something and where a person - ifnot his blood - was forced to tell what he knew. The prosecution wouldnot have been able to offer a blood sample in evidence in these cases ifthe defendant had not been forced to incriminate himself.

When we talk about admitting physical evidence derived from compelledtestimony or coerced confessions, we are talking about fact situations -unlike Holt or Schmerber - where (i) compulsion was used to extortcommunications from a defendant;(134) (ii) the evidence did relate tosome communicative act by the defendant;(135) (iii) the defendant wasforced "to reveal, directly or indirectly, his knowledge of factsrelating him to the offense";(136) or (iv) the defendant was"compelled to disclose or communicate information or facts thatmight serve as or lead to incriminating evidence."(137)

2. The Need To Consider the Entire Chain of Events

In determining whether certain evidence is admissible we should not,as do Amar and Lettow, dwell on the nature of the evidence in theabstract or focus exclusively on the last step of a multistep course ofaction by the police. We should consider, instead, the entire course ofpolice conduct from beginning to end. Indeed, such a consideration iswhat the principles of the Fifth Amendment demand.

It does not matter whether, looking only at the last phase of thepolice conduct, Evidence B was, or appears to have been, lawfullyobtained if, taking into account the entire chain of events, Evidence Bwas the end-product of unconstitutional police conduct - if, forexample, information as to the location of Evidence B was"compelled" within the meaning of the privilege. If this isthe situation then the question is no longer whether Evidence B would bebeyond the reach of a particular constitutional guarantee if itsacquisition were viewed in a vacuum - no longer, for example, whethernontestimonial evidence would be admissible if its attainment weresealed off from prior acts of testimonial compulsion. The questioninstead is whether Evidence B was fatally tainted by a prior violation.

The first case that comes to mind is Welsh v. Wisconsin.(138)Admission into evidence of one's refusal to take a breathalyzertest - or one's refusal to provide blood or urine samples for thepurpose of determining the presence or quantity of alcohol - does notoffend the Fifth Amendment.(139) Nevertheless, the Welsh Courtoverturned the revocation of a defendant's driver's licensefor refusing to take a breath-analysis test because before the defendantwas taken to the police station where he refused to submit to the test,he had been unlawfully arrested in his own home.(140) The opinion of theCourt was written by Justice Brennan - and it was a long one. But theauthor of Schmerber saw no need to discuss that case. There wasn'tany need. Schmerber was not relevant.

Welsh is hardly unique. There are many other cases illustrating thesame point.

If the procedure is viewed in isolation, an on-the-spot chemical testof white powder that would reveal only whether the substance was cocaineis beyond the reach of the Fourth Amendment because it is not a"search,"(141) just as, standing alone, the withdrawal andchemical analysis of blood is beyond the reach of the Fifth Amendmentbecause it does not constitute testimonial compulsion. But if drugagents come upon a package unlawfully - attain dominion and control overit by means of an unreasonable search and seizure - the results of achemical test of the package's contents might well be barred by theFourth Amendment.(142) Similarly, although the use of anarcotics-detecting dog is not a "search" or"seizure" in and of itself, a search based on the alert of adrug detecting dog may nevertheless run afoul of the Fourth Amendment ifillegally obtained knowledge formed the impetus for the use of thedetector dog.(143)

As a general proposition, the Fourth Amendment does not offer anyprotection to a person who voluntarily consents to a search. But it mayfurnish protection if the consent search is the fruit of prior policemisconduct - if, for example, an otherwise valid consent is preceded by,and tainted by, an illegal arrest.(144) In such a situation the fruit ofthe poisonous tree doctrine "extends to invalidate consents whichare voluntary."(145)

Ordinarily, objects stuffed in a garbage can are beyond theprotection of the Fourth Amendment, just as ordinarily nontestimonialevidence is beyond the protection of the Fifth. But a differentconstitutional result obtains if the police enter a person's homeillegally and the homeowner rushes out the door, followed closely by thepolice, and tries to hide the incriminating evidence in a nearby garbagecan. Under such circumstances, the evidence removed from the trashreceptacle is excluded on the ground that its seizure was "a directconsequence" of a lawless entry into a private dwelling.(146)

In Olmstead v. United States,(147) in the course of holding, over thefamous dissents of Holmes and Brandeis, that the wiretapping thatoccurred in that case did not violate the Fourth Amendment, the Courtemphasized that conversations were not things:

The Amendment itself shows that the search is to be of materialthings - the person, the house, his papers or his effects. Thedescription of the warrant necessary to make the proceeding lawful, isthat it must specify the place to be searched and the person or thingsto be seized.

....

... The Amendment does not forbid what was done here. There was nosearching. There was no seizure. The evidence was secured by the use ofthe sense of hearing and that only.(148)

Although some years later a federal statute was enacted prohibitingthe use of wiretapping by law enforcement officials as well as privatecitizens,(149) Olmstead governed the law of nontelephonic electronicsurveillance for the next four decades.(150) Nevertheless, during thattime the Court made plain that the Fourth Amendment did furnish someprotection against the seizure of oral statements - if the police wholistened were able to do so only because they had committed a priorviolation of the Fourth Amendment.

In Silverman v. United States,(151) the police utilized a so-calledspike mike to listen to what was going on within the defendant'shouse. The police pushed this device through the party wall of anadjoining house until it touched the heating ducts in defendant'shome, converting the entire heating system into a conductor ofsound.(152)

Troubled by language in Olmstead and other cases to the effect thatthe Fourth Amendment protects against the acquisition of things, notconversations, Silverman urged the Court to reexamine the rationale ofthese decisions. But the Court saw no need to do so:

[T]he circumstances here [do not] make necessary a re-examination ofthe Court's previous decisions in this area. For a fair reading ofthe record in this case shows that the eavesdropping was accomplished bymeans of an unauthorized physical penetration into the premises occupiedby [the defendant]....

Eavesdropping accomplished by means of such a physical intrusion isbeyond the pale of even those decisions in which [the] Court has heldthat eavesdropping accomplished by other electronic means did not amountto an invasion of Fourth Amendment rights.(153)

Two years later, still during the reign of Olmstead, the Courtdemonstrated once again that despite the Olmstead view that the FourthAmendment does not directly prohibit the use of evidence secured by thesense of hearing, the Fourth Amendment does play a role if the oralstatements were the fruits of an independent violation of the amendment.In the famous Wong Sun case,(154) the Court threw out a defendant'svoluntary statements because they were the products of a priorunreasonable search and seizure:

The exclusionary rule has traditionally barred from trial physical,tangible materials obtained either during or as a direct result of anunlawful invasion. It follows from our holding in Silverman that theFourth Amendment may protect against the overhearing of verbalstatements as well as against the more traditional seizure of"papers and effects." Similarly, testimony as to mattersobserved during an unlawful invasion has been excluded to enforce thebasic constitutional policies. Thus, verbal evidence which derives soimmediately from an unlawful entry and an unauthorized arrest as theofficers' action in the present case is no less the"fruit" of official illegality than the more common tangiblefruits of the unwarranted intrusion.(155)

It bears repeating that although the Court decided Silverman and WongSun at a time when the prevailing view was that the Fourth Amendmentonly protected against the acquisition of material things, that way ofthinking about the amendment did not matter when the entire chain ofevents called for the exclusion of oral statements. Such statements werestill excluded if they were the fruits of a Fourth Amendment violation.

Amar and Lettow dwell on the fact that reliable physical evidence -for example, a bloody knife or the defendant's own blood - is not"testimonial." But that should not matter if the totality ofthe circumstances calls for the exclusion of the physical evidencebecause it was derived from and fatally tainted by a prior FifthAmendment violation.

The fact that the evidence ultimately "found" orseized" in Silverman and Wong Sun was neither a "paper"nor an "effect" did not insulate it from the impact of a priorviolation of the Fourth Amendment. Similarly, the fact that evidenceultimately acquired is not "testimonial" should not insulateit from the effects of a prior Fifth Amendment violation.

3. Protection Against "Use and Derivative Use"

Given their understanding of the Fifth Amendment's animatingprinciples, Amar and Lettow maintain that the Amendment requires only arelatively narrow kind of immunity. I believe they are mistaken bothabout what the Fifth Amendment stands for and about what kind ofimmunity it requires.

Nothing in the Schmerber opinion suggests that the withdrawal andchemical analysis of blood - or, more generally, the acquisition ofnontestimonial evidence - has a special immunity that protects itagainst a constitutional challenge stemming from an antecedent FifthAmendment violation. Nothing in the opinion suggests that if a coercedconfession led the police to a bloodstained garment - "furnish[ed]a link in the chain of evidence"(156) - the blood analysis wouldstill be admissible because blood does not "speak." Indeed,if, on the day after the case had been decided, anyone had claimed thatSchmerber did have that implication, I think the Justices who composedthe majority - especially Justice Brennan, who wrote the opinion of theCourt - would have been astounded. After all, only two year earlier inMalloy v. Hogan,(157) the Court, again speaking through Justice Brennan,had upheld the invocation of the privilege by a defendant who refused toanswer questions relating to the identity of a certain individualbecause "disclosure of [the individual's] name might furnish alink in a chain of evidence sufficient to connect [the defendant] with amore recent crime for which he might still be prosecuted."(158)

Moreover, the same day the Court handed down its opinion in Malloy,it decided another important Fifth Amendment case, Murphy v. WaterfrontCommission.(159) I think Murphy, too, makes evident why Schmerber shouldbe read narrowly - why it cannot plausibly be read as insulating thetaking of a blood sample or the acquisition of any other physicalevidence from the effects of an antecedent Fifth Amendment violation.

Although Murphy held that a grant of immunity in one jurisdiction isbinding on other jurisdictions as wen, it also held that at least insituations in which the prosecuting jurisdiction differs from the onethat granted the immunity, the privilege against self-incriminationrequires use and derivative use immunity.(160) Until Murphy, it wasgenerally assumed that an individual could not be compelled to testifyunless she was given transactional immunity, under which the governmentwas prohibited from prosecuting a person for any transaction or offenseabout which she had testified.(161)

But no member of the Murphy Court suggested that the Fifth Amendmentpermitted anything less than use and derivative use immunity; no Justicechallenged the view first set forth in Counselman v. Hitchcock(162)that, as Justice White described it, "the coverage of the privilegeextend[s] to not only a confession of the offense but also disclosuresleading to discovery of incriminating evidence."(163)

As Amar and Lettow point out,(164) in a concurring opinion JusticeWhite, joined by Justice Stewart, underscored the need for a narrowerstandard of protection than transactional immunity in allsituations,(165) not just in interjurisdictional settings - a viewpointthat has since prevailed.(166) But the concurring Justices made plaintheir agreement with the majority that the Fifth Amendment requirednothing less than protection against use and derivative use of compelledtestimony.(167)

One of the arguments Justice White made for limiting the scope ofimmunity is worth flagging. In maintaining that the privilege requiresno more than protection against the use and derivative use of compelledtestimony, White drew an analogy to coerced confessions. He likened theplight of an individual who had given testimony in exchange for immunityto that of a defendant who had had a confession extracted from him bylawless police.(168)

Why not make such a comparison? After all, "[a] coercedconfession is as revealing of leads as testimony given in exchange forimmunity and indeed is excluded in part because it is compelledincrimination in violation of the privilege."(169)

Justice White assumed that the poisonous tree doctrine applies tocoerced confessions as well as to unreasonable searches andseizures.(170) Even so, the victim of a coerced confession does notreceive transactional immunity. As Justice White assumed, he may keepout evidence derived from and tainted by the confession, but notevidence that "had an independent, legitimate source."(171)Why, asked Justice White, should a person who gives testimony inexchange for immunity be in a better position? Why should such anindividual - but not the person whose constitutional rights wereviolated by police interrogators - be entitled to "absoluteimmunity from prosecution?"(172)

Justice White's argument, in short, was that so long as thegovernment does not make use of compelled testimony or its fruits in acriminal prosecution, the Fifth Amendment ought to be satisfied - justas it is when the government uses neither a coerced confession nor itsfruits in a criminal prosecution.(173)

I realize that Amar and Lettow are unhappy with use and derivativeuse immunity - what they and some other commentators call "use plususe-fruits immunity" - and that they believe only compelledtestimony should be excluded from a criminal prosecution, not the fruitsof such testimony as well.(174) But in reflecting on whether theSchmerber Court would have reached a different result had an independentFifth Amendment violation preceded and tainted the taking of the bloodsample - and more generally, in considering how narrowly or broadly thecase may plausibly be read - I hope I may be allowed to take intoaccount relevant and related cases on the books at the time, even thoughAmar and Lettow wish those cases did not exist.

B. Does Justice O'Connor - or the Court - Support

Amar and Lettow?

In New York v Quarles,(175) the police caught up with a rape suspectin the rear of a supermarket. Having heard from the victim that theperson who raped her was carrying a gun, the police asked the corneredsuspect where the gun was. He nodded in the direction of some emptycartons and responded, "The gun is over there." The officerreached into one of the cartons and retrieved a loaded revolver.(176)

Although the police had failed to give the defendant the Mirandawarnings, a majority of the Court ruled that his statement wasadmissible under a "public safety" exception to Miranda.(177)In her concurrence, Justice O'Connor disagreed. She would haveexcluded the defendant's statement but not the gun itself - because"nothing in Miranda or the privilege itself requires exclusion ofnontestimonial evidence derived from informal custodialinterrogation."(178)

Amar and Lettow contend that Justice O'Connor's concurringopinion furnishes support for their view that physical evidence derivedfrom coerced confessions or compelled testimony should beadmissible.(179) I think not.

The snippets of Justice O'Connor's opinion quoted by Amarand Lettow do seem to support their thesis, but when her opinion is readin its entirety, it is clear that O'Connor is urging a special rulefor the fruits of Miranda violations.(180) Again and again, sheemphasizes that the defendant was not "subject[ed] to abusivepolice practices"(181) or "actually or overtlycoerced"(182) and that the gun "derived not from actualcompulsion but from a statement taken in the absence of Mirandawarnings."(183)

Justice Marshall, who dissented in Quarles, directed most of his fireat Justice Rehnquist for adopting a public safety exception to Miranda,but he did aim one passage at concurring Justice O'Connor. If thedefendant's statement was inadmissible (and he contended it was),then, maintained Marshall, so was the gun - for it was the "directproduct" of the improper question.(184) At this point JusticeMarshall referred to two of the most famous Fourth Amendment poisonoustree cases - Silverthorne Lumber(185) and Wong Sun.(186) If JusticeO'Connor had shared Amar and Lettow's view, the quickest andmost obvious way to respond to Marshall would have been (i) to assertthat neither the Fifth Amendment nor the coerced confession rulerequires the suppression of derivative physical evidence, or (ii) tomaintain that the poisonous tree doctrine only applies to FourthAmendment violations. But Justice O'Connor did neither. Instead,she retorted, "Wong Sun and its 'fruit of the poisonoustree' analysis leads to exclusion of derivative evidence only wherethe underlying police misconduct infringes a 'core'constitutional right. Failure to administer Miranda warnings violatesonly a nonconstitutional prophylactic."(187)

I must say I disagree with Justice O'Connor's view ofMiranda. I would not denigrate that rule, as I believe she does. But onemay reject someone's reasoning and still understand it. I think Iunderstand Justice O'Connor.

Admittedly, it will not always be easy to apply her test; it will notalways be clear what is or is not "a 'core'constitutional right." But this much is plain: A failure toadminister the Miranda warnings does not violate a core constitutionalright. (According to a majority of the present Court, it does not seemto violate a constitutional right at all.) But a coerced confession doesviolate a core constitutional right. If not, it would be hard to imaginewhat police conduct would.

I am sure that Justice O'Connor would be quick to agree that acoerced confession constitutes an infringement of a core constitutionalright. As she wrote for the Court only a year after she concurred inQuarles, police interrogation techniques that produce involuntary orcoerced confessions "are so offensive to a civilized system ofjustice that they must be condemned under the Due Process Clause of theFourteenth Amendment."(188)

Evidently, Amar and Lettow believe that emanations from JusticeO'Connor's concurring opinion in Quarles support their viewthat physical evidence derived from compelled testimony and coercedconfessions should be admissible. I think not. I think JusticeO'Connor took considerable pains to cut off just such emanations:

[W]hen the Miranda violation consists of a deliberate and flagrantabuse of the accused's constitutional rights, amounting to a denialof due process, application of a broader exclusionary rule is warrantedOf 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."(189)

Even if the distinction Justice O'Connor drew in Quarles betweenmere Miranda violations and coerced confessions had been less forceful,I would still maintain that her opinion does not provide support for theAmar-lettow thesis. In ascertaining the meaning and scope of an opinion,one should read it - unless there are definite statements to thecontrary - as limited by the neighborhood of principles ... which becomestrong enough to hold their own when a certain point isreached."(190) Reading Justice O'Connor's opinion as"pointing the way"(191) for the admissibility of the fruits ofcompelled testimony or coerced confessions would run smack into thewell-established rule that the Fifth Amendment requires protectionagainst use and derivative use.(192)

As noted earlier, I am well aware that Amar and Lettow would like tooverrule Kastigar and other cases standing for this rule. But the morerelevant question is whether Justice O'Connor would like to do so.So far as I am aware, there is no evidence that she would.

I cannot resist noting that in the passage from Quarles set forthabove, Justice O'Connor quotes from the Kastigar opinion withapparent approval. Moreover, she quotes from the portion of the opinionthat likens compelled testimony, which requires protection against useand derivative use, to a coerced confession.(193)

As Justice O'Connor observed, in the main the Court "hasrefused to extend the [Miranda] decision or to increase its strictureson law enforcement agencies in almost any way."(194) In keepingwith that general attitude, she would not extend Miranda or increase itsstrictures on the police by suppressing physical evidence derived fromstatements obtained in violation of that rule; she would only excludethe statements themselves. On the other hand, when police interrogationmethods do produce a coerced confession, when police misconduct doesamount to a denial of due process, then, to use JusticeO'Connor's words, "application of a broader exclusionaryrule is warranted."(195)

The key to Justice O'Connor's Quarles opinion, I submit, isnot the Amar-Lettow thesis that the reliable fruits of a Fifth Amendmentviolation should always be admissible. Rather, it is that - as hard asit is for some of us to accept - a "mere" Miranda violation,unlike a coerced confession or compelled testimony, does not constitutea violation of the Fifth Amendment itself.

This becomes even clearer when one examines the second opinionJustice O'Connor wrote on the general subject. In Oregon v.Elstad,(196) this time speaking for the Court, Justice O'Connorunderscored the lowly position Miranda currently occupies in thehierarchy of rights. She described a defendant whose Miranda rights havebeen violated as one "who has suffered no identifiableconstitutional harm."(197) And she characterized a breach of theMiranda rule as an occurrence that involves "no actualcompulsion" and "no actual infringement of the suspect'sconstitutional rights."(198)

In Elstad, the fruits of the Miranda violation were incriminatingstatements made by the defendant during a second meeting with thepolice, at which time, unlike in his first session, the defendant'sMiranda rights were honored. The Court held that the fact that thepolice had obtained a statement from the defendant in violation of hisMiranda rights when they questioned him earlier at his home did not barthe admissibility of the second statement, made at the station house,when, this time, the police had complied with Miranda.(199)

Justice O'Connor's opinion in Elstad is much more elaborateand more carefully and clearly written than her earlier concurringopinion in Quarles. Moreover, because her Elstad opinion is the opinionof the Court, not just the viewpoint of a single justice, the Elstadopinion is more important.

Because Amar and Lettow maintain that Justice O'Connor'sapproach to the fruits of Miranda violations supports their view thatthe fruits of compelled testimony and coerced confessions should beadmitted as well(200) - and I read her comments very differently - Ifeel the need to quote from Justice O'Connor's Elstad opinionat considerable length and let the reader decide for herself:

[The defendant's] contention that his confession was tainted bythe earlier failure of the police to provide Miranda warnings and mustbe excluded as "fruit of the poisonous tree" assumes theexistence of a constitutional violation....

....

... As in [the instant] case, the breach of the Miranda procedures inTucker involved no actual compulsion.... Since there was no actualinfringement of the suspect's constitutional rights, the [Tucker]case was not controlled by the doctrine expressed in Wong Sun thatfruits of a constitutional violation must be suppressed.

....

... If errors are made by law enforcement officers in administeringthe prophylactic Miranda procedures, they should not breed the sameirremediable consequences as police infringement of the Fifth Amendmentitself. It is an unwarranted extension of Miranda to hold that a simplefailure to administer the warnings, unaccompanied by any actual coercion... so taints the investigatory process that a subsequent voluntary andinformed waiver is ineffective for some indeterminate period.(201)

As I read her two opinions on the admissibility of the fruits of aMiranda violation, Justice O'Connor drew the same distinct linebetween "mere" Miranda violations and actual"infringements of the Fifth Amendment itself" that the Courthad drawn earlier in the so-called impeachment cases. In that settingtoo, the Court painted a bright line between Miranda violations, whichmay be used to impeach a defendant who testifies in his owndefense,(202) and a coerced confession or compelled testimony, whichcannot be used for impeachment purposes.(203)

Although Harris v. New York(204) held that statements obtained inviolation of Miranda may be used to impeach a defendant who takes thestand in his own defense, the Court declared peremptorily in Mincey v.Arizona(205) that "any criminal trial use against a defendant ofhis involuntary statement is a denial of due process of law."(206)When, a year later in New Jersey v. Portash,(207) the prosecutioncontended that immunized grand jury testimony could be used forimpeachment purposes, the Court retorted in effect that Mincey hadalready resolved that issue against the government:

As we reaffirmed last Term, a defendant's compelled statements,as opposed to statements taken in violation of Miranda, may not be putto any testimonial use whatever against him in a criminal trial....

Testimony given in response to a grant of legislative immunity is theessence of coerced testimony.... The information given in response to agrant of immunity may well be more reliable than information beaten froma helpless defendant, but it is no less compelled. The Fifth andFourteenth Amendments provide a privilege against compelledself-incrimination, not merely against unreliable self-incrimination.Balancing of interests was thought to be necessary in [the Mirandaimpeachment cases] when the attempt to deter unlawful police conductcollided with the need to prevent perjury. Here, by contrast, we dealwith the constitutional privilege against compulsory self-incriminationin its most pristine form. Balancing, therefore, is not simplyunnecessary. It is impermissible.(208)

In Portash, the defendant had received use and derivative useimmunity - what the Court called "the necessary constitutionalscope of testimonial immunity."(209) It is hard to believe that thevictim of a coerced confession is entitled to any less protection.Testimony in response to an immunity grant may be no less compelled thana confession extracted from a helpless defendant, but surely it is nomore compelled. If testimony in exchange for immunity implicates theprivilege "in its most pristine form," so does a coercedconfession. If compelled testimony is "the essence of coercedtestimony," so is a coerced confession.

In relying on the Miranda impeachment cases, the Portash Courtpointed out, "the State has overlooked a crucial distinctionbetween those cases and this one":(210) the defendants, in thosecases had made no claim that their statements were coerced orinvoluntary. Amar and Lettow overlook the same crucial distinction, Isubmit, when they look upon the statements Justice O'Connor made inthe special context of Miranda as support for their general thesis.

C. Does Judge Friendly Support Amar and Lettow?

Because Judge Henry Friendly, probably the most formidable critic ofMiranda,(211) may have been the first commentator to argue that thefruits of Miranda violations should be admitted into evidence, andbecause both Justice O'Connor(2l2) and Amar and Lettow(213) quotehim with approval, a close look at what Friendly had to say about thefruits of inadmissible confessions seems warranted.

First of all, Judge Friendly recognized that his proposal to admitthe fruits of Miranda violations posed substantial dangers: "Themore serious question is how far admission of fruits would perpetuatethe police abuses at which the Miranda opinion was partly aimed; thepolice, it can be forcefully argued, would invariably exercise theoption to sacrifice the statements themselves rather than follow thefrustrating Miranda code."(214) Friendly had reason to beconcerned. As he noted, "It has been said that `what data thereare' suggest that the obtaining of leads with which to obtain realor demonstrative evidence or prosecution witnesses is more important tolaw enforcement than getting statements for use in court."(215)

Amar and Lettow cite Judge Friendly for the proposition that"physical leads are often more important to law enforcement thangetting statements for use in court,"(216) but they do so in a waythat would lead many a reader to believe that Friendly considered thisan argument for admitting physical leads into evidence. I think itfairly clear, however, that he viewed this as an argument for not doingso. He concluded nevertheless that the fruits of a Miranda violationshould be admissible, evidently because he thought the need to use suchfruits outweighed the risk that their admissibility would have anadverse effect on police behavior.(217)

I have read and reread Judge Friendly's arguments for admittingthe fruits of Miranda violations. I am able to follow most of hisarguments, but not, I confess, all of them. It may be my shortcoming,but I find one argument - one quoted by Justice O'Connor and byAmar and Lettow as well(218) - especially puzzling: [A]lthough asuspect's answers are indeed 'testimonial' insofar asthey implicate him and would be banned as such, their use merely to findother evidence establishing his connection with the crime differs onlyby a shade from the permitted use for that purpose of his body or hisblood."(219)

Judge Friendly cites two cases in support of this statement:Schmerber v. California,(220) which I have already discussed atconsiderable length,(221) and Holt v. United States,(222) a 1910case.(223) In Holt, the question arose whether a blouse belonged to thedefendant, and the Court upheld the admissibility of a witness'stestimony that the defendant put on the blouse and it fit him.(224) Ifail to see the relevance of either case to the issue we are debating.In neither case was the disputed evidence the fruit of a constitutionalviolation. In neither case did the defendant's answers lead thegovernment to the disputed evidence.

Although some have argued to the contrary, I am perfectly willing toconcede that physical evidence differs only by a shade from the"permitted use" of a person's body or his blood. But thatonly leads to other questions: Under what circumstances should the useof a person's body or his blood be permitted? Should the use of aperson's blood, or physical evidence generally, be permittedregardless of the police misconduct that led to its acquisition? Clearlynot, I believe. As I have argued at length, it should be permitted -and, I believe, it is permitted - only when, as in Schmerber and Holt,the physical evidence was not derived from and tainted by an antecedentFifth Amendment violation or other constitutional violation.

The statement by Judge Friendly quoted above should be read in lightof everything he had to say about the admissibility of the fruits ofconfessions. When so read, all he meant, I am convinced, is thatalthough a suspect's answers to questions asked by police officerswho fail to administer the Miranda warnings are "indeedtestimonial," the use of answers to such questions to find otherevidence of crime should stiff be permitted. To give his statement amore expansive reading than that would conflict with what Judge Friendlyhad to say a year later in his Marx Lectures:

[T]he involuntary confession rule reflected a belief that there wasan area where government might legitimately inquire before the criminalprocess began; only when its agents overpassed the boundaries of decentconduct [i.e., obtained a coerced confession] did the answers and theirfruits have to be excluded.

....

One solution to [the problems posed by Miranda] would be to go alongwith the majority's holding that answers obtained in violation ofthe Miranda rules may not be used but to admit the fruits where thequestioning had not violated basic concepts of decency.(225)

In any event, when Friendly actually formulated his proposal, he wasquite guarded. He called for "an intermediate rule whereby although[the state] cannot require the suspect to speak by punishment or force,the non-testimonial fruits of speech that is excludable only for failureto comply with the Miranda code could still be used."(226)

This formulation, too, is not free from doubt. I maintain that JudgeFriendly's proposal drew a line between situations in which thepolice failed to administer the Miranda warnings and those instances inwhich the police require[d] the suspect to speak by punishment orforce."(227) I contend that he was not caning for a revision of therule (or what he assumed to be the rule) governing coerced confessions -a rule he thought required the fruits of such confessions as well as theconfessions themselves to be excluded(228) - but only proposing that anexception to the general rule be carved out for "mere" Mirandaviolations, that is, for confessions inadmissible "only for failureto comply with the Miranda code."(229) But no doubt others wouldread Friendly's proposal differently. They would argue, forexample, that the "logic" of his proposals or the"emanations" from his reasoning applied to the fruits ofcoerced confessions as well as to the fruits of Miranda violations.

On the basis of this passage alone, we would not know for sure whatJudge Friendly meant. But we do know for sure - because he told us. Twopages later - in a statement that, astonishingly, Amar and Lettowcompletely ignore - he wound up his discussion of the admissibility of aconfession's fruits as follows: "Certainly any rule allowingthe admission of fruits would have to be limited, as was the Johnsonruling with respect to retroactive application, to interrogation notviolating due process standards; fruits of confessions obtained byphysical brutality or other abhorrent means should clearly beexcluded."(230)

A flat, emphatic statement trumps all implications and emanations tothe contrary. And it is hard to see how Friendly could have been anyclearer or more emphatic.

If, as Amar and Lettow stress, the physical fruits of confessions"are quite reliable and often highly probative pieces ofevidence"(231) why did Judge Friendly, for whom they evidently havea high regard,(232) balk at admitting the physical fruits of coercedconfessions?

One can't be sure. Perhaps Judge Friendly did not believe thathe had the same room to maneuver when it came to coerced confessions ashe did when he dealt with "mere" Miranda violations.(233) (Weknow he assumed that the poisonous tree doctrine applied to the fruitsof coerced confessions.(234) Perhaps he believed that the FifthAmendment protected against the use and derivative use of a confessioncompelled by the police no less than it did testimony compelled by agrant of immunity. But even if he believed he were free to compose andpropose on a clean slate, I believe Judge Friendly would have arrived atthe same conclusion he did with respect to the fruits of a coercedconfession.

He drew a sharp line - as I think the Court did in Elstad - between"mere" Miranda violations and confessions that JusticeO'Connor later identified as "offensive to a civilized systemof justice."(235) I think he was determined to condemn in thestrongest way possible police interrogation methods that "Violate[]basic concepts of decency."(236) I also believe he feared that ifthe prosecution were allowed to use the often-valuable leads produced bycoerced confessions, the police would have a significant incentive toresort to unacceptable interrogation techniques.

To put it another way, I think that even if Judge Friendly believedhe was free to weigh the costs and benefits of preventing the use ofevidence derived from coerced confessions - and perhaps he did feel freeto do so - he would have concluded - and perhaps he did conclude - thatthe need to disapprove and to discourage interrogation methods thatviolate minimum standards of due process outweighed the costs ofexclusion.

III. Counselman V. Hitchcock, Kastigar V. United

States, and the Poisonous Tree Doctrine

Counselman v. Hitchcock(237) marked the first time the Supreme Courtconsidered a challenge to an immunity statute.(238 When questioned by agrand jury about possible criminal violations of the Interstate CommerceAct, Counselman invoked the privilege against self-incrimination.Although he was granted testimonial immunity - protection only againstthe use of the specific testimony compelled from him - Counselmanpersisted in his refusal to answer. As a consequence, he was adjudged incontempt of court. On appeal, the Supreme Court upheld Counselman'srefusal to answer, pointing out that the statute furnishing immunityfailed to protect him against the derivative use of his testimony. Thiswas a fatal deficiency that the Court repeatedly emphasized:

[The statute] could not, and would not, prevent the use of histestimony to search out other testimony to be used in evidence againsthim or his property, in a criminal proceeding .... It could not preventthe obtaining and the use of witnesses and evidence which should beattributable directly to the testimony he might give under compulsion,and on which he might be convicted, when otherwise, and if he hadrefused to answer, he could not possibly have been convicted.

....

... [The statute] does not supply a complete protection from an theperils against which the constitutional prohibition [against compulsoryself-incrimination] was designed to guard, and is not a full substitutefor that prohibition.... [The statute] affords no protection againstthat use of compelled testimony which consists in gaining therefrom aknowledge of the details of a crime, and of sources of information whichmay supply other means of convicting the witness or party.(239)

The Counselman Court was well aware that a number of the stateconstitutional counterparts to the Fifth Amendment prohibited a personfrom being compelled to "give evidence" or to "furnishevidence" against himself and thus contained more expansivelanguage than the Fifth Amendment itself.(240) But the Court believedthat the state and U.S. constitutional provisions, "howeverdifferently worded, should have as far as possible the sameinterpretation."(241)

What should that interpretation be? It should include, the Court toldus - quoting from Emery's Case,(242) a Massachusetts case -protecting a person " from being compelled to disclose ... thesources from which, or the means by which, evidence of [his crime] ...or of his connection with it, may be obtained ... without using hisanswers as direct admissions against him.'"(243)

In Counselman, the appellee argued - as do Amar and Lettow(244) -that Emery's Case is easily distinguishable because it involved theconstruction of a state provision declaring that "[n]o subjectshall be ... compelled to accuse or furnish evidence againsthimself."(245) But the Court did not think the difference inwording was important: "[H]owever this difference [in the wordingof the Massachusetts and similar state provisions] may have beencommented on in some of the [state] decisions, there is really, inspirit and principle, no distinction arising out of such difference oflanguage."(246)

Once it held that the Fifth Amendment furnished protection againstthe derivative use of one's compelled testimony, the CounselmanCourt could have ended its opinion. It sufficed that (i) at the veryleast, the Fifth Amendment required protection against the use andderivative use of compelled utterances, and (ii) the challenged immunitystatute failed to satisfy even this minimal standard. There was no needto say any more.

But the Counselman court did say more. At the very end of a longopinion, it added a statement - one that a later Court called"dictum"(247) - that a statutory enactment, to be valid, mustafford absolute immunity against future prosecution for the offence towhich the question relates."(248)

Why the Counselman Court felt the need to add this statement isunclear. Perhaps it thought that use and derivative use immunity, as apractical matter, could not furnish a person sufficient protectionagainst such subtle uses of compelled testimony as the identification ofwitnesses.(249) Or perhaps the Court was not "aware of themiddleground afforded by use and derivative use immunity, but ratherconceived of transactional immunity as the only alternative to useimmunity."(250)

In any event, I share the view that "the essence ofCounselman" is its determination that the privilege protectsagainst the derivative use, as well as the use, of compelledutterances:(251) it prevents the government from using compelledtestimony to gain knowledge of ... sources of information which maysupply other means of convicting"(252) defendant. At the veryleast, this portion of the opinion is, as the Court later called it,"the conceptual basis of Counselman."(253)

I find it odd that Amar and Lettow never refer to this portion ofCounselman - a portion that constitutes the bulk of the opinion. I haveno desire to get entangled in a discussion of "holding" versus"dictum." I am willing to avoid the term "dictum"and say that (i) the "primary, " or perhaps even the"intermediate, " holding of Counselman was the determinationthat the immunity statute at issue had to fall because it failed toprovide protection against the derivative use of compelled testimony,and (ii) the secondary, " or perhaps even the"ultimate," holding was the view that an immunity statute mustprovide "absolute immunity," or what has come to be known as"transactional immunity." But why do Amar and Lettow neverallude to what may be called the primary holding - or at least theintermediate holding - of the case? Why is Counselman described only asa case that "established an extraordinarily sweeping form ofimmunity"(254) and as an "1892 chestnut"?(255)

According to the dictionaries I have consulted, one of the secondarydefinitions of chestnut, and the one I assume Amar and Lettow had inmind, is "an old and stale joke."(256) The Counselman case maybe old, but its primary or intermediate holding is hardly stale. In thehundred years since Counselman was decided, the Court has never deviatedfrom the view that the minimal form of immunity required by the FifthAmendment is protection against the use and derivative use of compelledtestimony.

Again and again, the Court has told us that the privilege "notonly extends to answers that would in themselves support a conviction... but likewise embraces those which would furnish a link in the chainof evidence needed to prosecute the claimant...";(257) that castate witness may not be compelled to give testimony which may beincriminating under federal law unless the compelled testimony and itsfruits cannot be used in any manner by federal officials in connectionwith a criminal prosecution against him";(258) that the privilegeprotects a witness compelled to testify against any governmental"use of the compelled testimony or its fruits in connection with acriminal prosecution against the person testifying";(259) that"a witness protected by the privilege may rightfully refuse toanswer unless and until he is protected at least against the use of hiscompelled answers and evidence derived therefrom in any subsequentcriminal case in which he is a defendant";(260) and that the"policies [of the privilege] are served when the privilege isasserted to spare the accused from having to reveal, directly orindirectly, his knowledge of facts relating him to theoffense...."(261)

Whether regarded as a holding or as dictum, the broad language at theend of the Counselman opinion "was taken as indicating that a validimmunity grant must absolutely bar prosecution for any transaction notedin the witness' testimony."(262) Accordingly, the"transactional immunity statute became the basic form for thenumerous federal immunity statutes until 1970."(263)

However, language in a 1964 case, Murphy v. WaterfrontCommission,(264) indicated that use and derivative use immunity would beconstitutionally sufficient to compel testimony over a claim of theprivilege.(265) Thus encouraged, Congress began considering a new typeof immunity statute. Finally, it enacted section 6002 of the CrimeControl Act of 1970,(266) which replaced transactional immunity with aprohibition against use and derivative use. The new immunity statuteprovided:

[N]o testimony or other information compelled under the [court] order(or any information directly or indirectly derived from such testimonyor other information) may be used against the witness in any criminalcase, except a prosecution for perjury, giving a false statement, orotherwise failing to comply with the order?(267)

In Kastigar v. United States,(268) a 5-2 majority upheld the newfederal provision against the contention that use and derivative useimmunity did not adequately protect a witness and thus was insufficientto supplant the privilege. The Court held that because the challengedprovision "prohibits the prosecutorial authorities from using thecompelled testimony in any respect,"(269) the scope of the immunityprovided was coextensive with the scope of the privilege. And itmaintained that "[this] holding is consistent with the conceptualbasis of Counselman."(270)

Amar and Lettow have harsh words for Kastigar and for its doubleconclusion that use and derivative use immunity is both constitutionallysufficient and constitutionally necessary. They assert that Kastigar"provided no persuasive basis for stopping where it did infashioning its new rule"(271) and that it "failed to explainpersuasively where its new rule came from."(272)

These comments are likely to leave Amar and Lettow's readers ata loss. Amar and Lettow do not bother to tell us why they think theKastigar Court's explanations are unpersuasive. Nor is the readerin any position to decide for herself, because Amar and Lettow do noteven tell us what reason (persuasive or otherwise) the Court gave forstopping where it did or what explanation (persuasive or otherwise) itoffered for the genesis of its new rule. Indeed, at one point Amar andLettow indicate that they cannot fathom what led the Kastigar Court toadopt the rule it did: "[W]hat, precisely, was the source ofKastigar's `rational accommodation'?"(273)

I find the question baffling. All one need do to discover the sourceof the Kastigar rule and to learn why the Court stopped where it did isto read the Kastigar opinion.

The basis for the immunity provision at issue in Kastigar and thesource of the Court's holding that use and derivative use immunityprovides all the protection the Fifth Amendment requires is either (i)"the conceptual basis of Counselman ... namely, that immunity fromthe use of compelled testimony and evidence derived therefrom iscoextensive with the scope of the privilege"(274) or (ii) thepoisonous tree doctrine, as it applies to the Fifth Amendment. To put itsomewhat differently, the genesis of what Amar and Lettow callKastigar's "new rule" is either an old case or an olddoctrine - either Counselman, which regarded the prohibition against thederivative use of compelled statements an essential part of the FifthAmendment and considered this prohibition built into theAmendment's exclusionary rule,(275) or the poisonous tree doctrine,which on the eve of Kastigar was thought to apply in the Fifth Amendmentcontext as well as in the Fourth.(276)

When the Counselman Court held that the Fifth Amendment protected awitness against the derivative use of his testimony, did it not, ineffect, invoke what has come to be known as the poisonous tree doctrine?If, as the search and seizure cases seem to say, the poisonous treedoctrine is the corollary of an exclusionary rule,(277) whyshouldn't the Fifth Amendment have its own poisonous tree doctrine?After all, the Fifth Amendment's prohibition against compelledself-incrimination "is an exclusionary rule - and aconstitutionally created one."(278) Moreover, "unlike theFourth Amendment, the Fifth Amendment is directly concerned with theintroduction of tainted evidence at trial; it is in fact theintroduction of such evidence that constitutes the primary violation ofthe Amendment."(279)

In any event, whether the poisonous tree doctrine is regarded as anintrinsic part of the Fifth Amendment itself or as a doctrine thatoriginated in the search and seizure cases and spilled over into theFifth Amendment area, or whether, as was said on the eve of Kastigar,the poisonous tree doctrine and Murphy v. Waterfront Commission (andother then-recent Fifth Amendment cases) "seem to coalesce inresult,"(280) it is clear that both the Congress that enacted the1970 immunity statute and the Court that upheld it operated on thepremise that the poisonous tree doctrine applied to compelledstatements.(281)

As the Court noted, the recommendation of the National Commission onReform of Federal Criminal Laws "served as the model" for theimmunity statute at issue in the Kastigar case.(282) In a special reportto the President, the Chairman of the National Commission expressedconfidence that the Commission's proposal for use and derivativeuse immunity would satisfy constitutional requirements because itprovided the same protection required in cases of coerced confessions orevidence otherwise unconstitutionally obtained:

Immunity from use is the only consequence flowing from a violation ofthe individual's constitutional right to be protected fromunreasonable searches and seizures, his constitutional right to counsel,and his constitutional right not to be coerced into confessing. Theproposed immunity is thus of the same scope as that frequently, eventhough unintentionally, conferred as the result of constitutionalviolations by law enforcement officers.(283)

When the immunity provision at issue in Kastigar was attacked on theground that a statute had to grant full transactional immunity in orderfor it to be coextensive with the scope of the privilege, the Courtresponded - as had the Congress and the National Commission earlier - bypointing to the poisonous tree doctrine:

The statutory proscription is analogous to the Fifth Amendmentrequirement in cases of coerced confessions. A coerced confession, asrevealing of leads as testimony given in exchange for immunity, isinadmissible in a criminal trial, but it does not bar prosecution.Moreover, a defendant against whom incriminating evidence has beenobtained through a grant of immunity may be in a stronger position attrial than a defendant who asserts a Fifth Amendment coerced-confessionclaim.... [The latter defendant] must first prevail in a voluntarinesshearing before his confession and evidence derived from it becomeinadmissible.

There can be no justification in reason or policy for holding thatthe Constitution requires an amnesty grant where ... testimony iscompelled in exchange for immunity from use and derivative use when nosuch amnesty is required where the government, acting without colorableright, coerces a defendant into incriminating himself.(284)

There is no mystery about why the Congress that enacted the 1970immunity statute and the Court that upheld it went as far as they didbut no further. Congress and the Court went as far as they did inprotecting a witness compelled to testify in exchange for immunitybecause they believed they had to go that far in order to "leave[]the witness and the prosecutorial authorities in substantially the sameposition as if the witness had claimed the Fifth Amendmentprivilege"(285) - just as they thought the poisonous tree doctrineleft a defendant who had been the victim of unconstitutional policeconduct in substantially the same position as if the police had notviolated his rights.

Congress and the Court went as far as they did because the poisonoustree doctrine went that far. To use Amar and Lettow's language,Congress and the Court "stopped" where they did because thatwas where the poisonous tree doctrine "stopped."(286) NeitherCongress nor the Court could see any reason to give a witness who wascompelled to testify absolute or transactional immunity "when nosuch amnesty is required where the government ... coerces a defendantinto incriminating himself."(287)

IV. Inadmissible Confessions and the Poisonous Tree

Doctrine

As noted earlier,(288) it does not appear that the Supreme Court hasever specifically addressed the question whether or under whatcircumstances physical evidence derived from a coerced confession isadmissible. At first blush the Court's failure to do so seemsastonishing. But on reflection the failure becomes more understandable.

A. The Rule of Automatic Reversal

For most of the life of the due process coerced confession doctrine,the "rule of automatic reversal" governed - that is, theerroneous admission of a coerced confession necessitated reversalregardless of how much evidence, tainted or untainted, remained tosupport the conviction.(289) Not until 1991 did a closely divided Courthold for the first time that the admission of a coerced confession issubject to harmless error analysis.(290)

During the long reign of the rule of automatic reversal, whenever adefendant claimed that her coerced confession had been erroneouslyadmitted, there was, of course, no need to determine whether thephysical evidence in the case was derived from or independent of thecoerced confession. If the confession fell, so did the conviction.

Consider, for example, Culombe v. Connecticut.(291) After admittinghis involvement in a felony murder, the defendant led the police to aplace where certain weapons were concealed, to a swampy area where thedefendant and a confederate had disposed of another weapon, and toanother swampy area where a raincoat said to have been worn on the nightof the crime was recovered.(292) But there was no need for the Court toconsider whether these items were the inadmissible fruits of theconfession. And it did not do so. Justice Frankfurter, who announced thejudgment of the Court, pointed out: "If [the confessions] werecoerced [and they were], Culombe's conviction, however convincinglysupported by other evidence, cannot stand."(293)

To be sure, the rule of automatic reversal does not explain why theSupreme Court has never addressed the question of the admissibility ofphysical evidence in a case where the police extracted a coercedconfession from the defendant but the prosecution did not offer theconfession in evidence. But I know of no Supreme Court case fitting thatdescription. Nor does the rule of automatic reversal explain why theCourt never dealt with the admissibility of derivative evidence in acase where a defendant whose confession was overturned the first timearound was tried again and reconvicted without the confession. But Iknow of only one such case that reached the Court a second time, and itturned out to be an embarrassment for the prosecution.(294)

Once an appellate court has ruled that a confession introduced attrial was coerced, the victim of such a confession is apparently notretried very often. Why not? Many times, the prosecution may not haveenough evidence to obtain a conviction without the confession. Moreover,aware that an appellate court would probably take a long, hard look at aconviction obtained without a confession when the confession hadpreviously been found to be the product of serious police misconduct,the prosecution will not be eager to subject the case - and other policeconduct in the case - to further appellate court scrutiny.

B. The Prosecutor's Reluctance To Withhold a Confession

Let us put retrials aside. If a confession is arguably coerced, whynot decline to offer it in evidence and prosecute the case without it?It seems that rarely, if ever, will a prosecutor feel confident that hercase is so strong that she can afford to keep out the confession orother incriminating statements. She may remember the time when aseemingly overwhelming case for the State resulted in an acquittal or"hung jury." She may remember the time, after she lost a casein which there were no confessions or incriminating statements, when thejury clustered around her or the judge and asked whether the defendantever admitted his guilt.(295) She may be convinced that "in theabsence of a confession, seeds of doubt are likely to remain in theminds of the public and of jurors despite overwhelmingevidence."(296)

C. Nardone

I think there is another reason why the Supreme Court never hadoccasion to determine the admissibility of physical evidence derivedfrom a coerced confession. For much of the life of the doctrine, many(perhaps most) prosecutors and many (perhaps most) lower court judgesprobably assumed that the poisonous tree doctrine barred the use of suchevidence and acted accordingly.

After all, only three years after it had handed down its firstFourteenth Amendment due process coerced confession case,(297) the Courtdecided Nardone v. United States,(298) the case that coined the phrasefruit of the poisonous tree.(299) The Nardone Court refused to permitthe government to avoid an inquiry into its use of information gained byillegal wiretapping, observing that to forbid the direct use of methodsprohibited by the federal wiretap statute "but to put no curb ontheir full indirect use would only invite the very methods deemed`inconsistent with ethical standards and destructive of personalliberty.'"(300)

At no point in his opinion for the Court did Justice Frankfurtersuggest that the Court was invoking its supervisory powers over federalcriminal justice. Nor at any point did Frankfurter suggest that therewas anything special or peculiar about the wording or the legislativehistory of the antiwiretapping statute.

The doctrine applied in Nardone - and given the name by which it hasever since been known - had its genesis in a 1920 search and seizurecase, Silverthorne Lumber Co. v. United States.(301) Justice Frankfurterdeemed what was said in Silverthorne "pertinent" and quotedit: "`The essence of a provision forbidding the acquisition ofevidence in a certain way is that not merely evidence so acquired shallnot be used before the Court, but that it shall not be used atall.'"(302) "Here, as in the Silverthorne case,"added Frankfurter, improperly obtained facts may still be used"`[i]f knowledge of them is gained from an independent source ...but the knowledge gained by the Government's own wrong cannot beused by it' simply because it is used derivatively."(303)

Taken together, Silverthorne and Nardone seem to stand for thegeneral proposition that when the police obtain evidence by committing aconstitutional or federal statutory violation, they cannot use knowledgeacquired by their wrongful conduct simply because it is usedderivatively. The Silverthorne-Nardone doctrine - and until the 1960sthese were the only two Supreme Court cases to apply or discuss thepoisonous tree doctrine - "is a response to the realization that ifpolice officers are permitted to use knowledge gained from unlawfullyobtained evidence to obtain the same or other valuable evidence legally,an inducement to commit such unlawful practices continues toexist."(304)

D. Wong Sun

Perhaps the Nardone rationale explains the result in Wong Sun v.United States.(305) Although for many years "it ha[d] been hornbooklaw that the illegality of an arrest does not operate to exclude anotherwise admissible confession or incriminating statement"(306)the government in Wong Sun conceded that if the statements the defendanthad made to federal narcotics agents in his bedroom were held to be thefruits of his illegal arrest, the statements had to be excluded.(307)Justice Brennan, who wrote the opinion of the Court, recognized that theexclusionary rule "has traditionally barred from trial physical,tangible materials obtained either during or as a direct result of anunlawful invasion"(308) but held that "verbal evidence whichderives so immediately from an unlawful entry and an unauthorized arrestas the officers' action in the present case is no less the`fruit' of official illegality than the more common tangible fruitsof the unwarranted intrusion."(309)

Although Wong Sun is best known as the case that applied thepoisonous tree doctrine to verbal evidence derived from a FourthAmendment violation, another aspect of the case is noteworthy: The Courtalso applied the poisonous tree doctrine to bar the use of physicalevidence derived from the defendant's inadmissible statements.

When apprehended by the agents, the defendant told them about a thirdparty who had been selling drugs and told them where he lived. Whenconfronted by the agents shortly thereafter, the third party surrenderedsome heroin and told the agents that the narcotics had been provided bythe defendant.(310) The Court held that the narcotics as well as thedefendant's statements had to be excluded because "thenarcotics were `come at by the exploitation of [the primary]illegality.'"(311)

Evidently the Court regarded the narcotics turned over to the agentsby the third party as the somewhat distant fruits of theunconstitutional arrest. The narcotics may also be viewed as the moreimmediate fruits of the unconstitutionally obtained statements.(312) Butwhy should it matter which way the situation is viewed?(313)

Let us change the facts of Wong Sun. Suppose the federal agents hadlawfully arrested the defendant. Suppose further that they then hadextracted a coerced confession from him and that this confession had ledthem to a third party who surrendered narcotics and implicated thedefendant. It is hard to believe that the Court would have upheld theadmissibility of the narcotics on these changed facts, just because theacquisition of the narcotics was contaminated by a due process or FifthAmendment violation rather than by a Fourth Amendment violation.

When Justice Brennan observed in Wong Sun that "the policiesunderlying the exclusionary rule [do not] invite any logical distinctionbetween physical and verbal evidence,"(314) he was speaking of thefruits of the poisonous tree, not the poisonous tree itself. But whyshouldn't this observation apply to the poisonous tree as well?Once it is kept in mind that a principal - if not the dominant -rationale for barring the use of coerced confessions is condemnation anddiscouragement of the lawless police methods that brought about theconfession,(315) how can it be said that the policies underlying theconfession and search or seizure exclusionary rules invite a logicaldistinction?

As Justice Brennan told us in Wong Sun, "[e]ither in terms ofdeterring lawless [police] conduct ... or of closing the [courtroomldoors ... to any use of evidence unconstitutionally obtained, the dangerin relaxing the exclusionary rules in the case of verbal evidence [asopposed to physical, tangible fruits] would seem too great to warrantintroducing such a distinction."(316) But when we remember that formore than three decades the police methods test has been the primaryrationale for excluding coerced confessions,(317) the danger in relaxingthe exclusionary rule in the case of a coerced confession rather than anunlawful search would also seem too great to warrant a distinction.

E. Harrison v. United States

Five years after Wong Sun, in Harrison v. United States,(318) theCourt invoked the poisonous tree doctrine again. The Court did not viewthe doctrine as limited to the search and seizure setting in which itwas born, nor did it apply the doctrine sparingly. Justice Stewart,writing for a 6-3 majority, held that the petitioner's former trialtestimony should not have been used at his second trial because he hadtestified in his own defense at his first trial only in an effort tominimize the impact of three confessions that were improperly admitted.It is indisputable that the Court read the Silverthorne-Nardone-Wong Sunline of cases broadly as standing for the general proposition that thegovernment cannot introduce evidence acquired as a result of policemisconduct simply because it is used derivatively.

Harrison arose as follows: At the petitioner's first trial, theprosecution introduced three confessions in which he allegedly admittedthe shotgun slaying of a robbery victim. Following the admission ofthese confessions, the petitioner took the witness stand and testifiedto his own version of events. In the course of his testimony, headmitted that he had been at the scene of the killing, weapon in hand.The court of appeals reversed his conviction on the ground that theconfessions should have been excluded because they were obtained inviolation of the McNabb-Mallory rule.(319) On retrial, thepetitioner's previous trial testimony was used against him over hisobjection that he had been induced to testify at his first trial onlybecause of the governments use of his inadmissible confessions. Thepetitioner was again convicted, and the court of appeals affirmed theconviction.

The Supreme Court reversed the petitioner's second conviction onthe ground that his previous testimony was the inadmissible fruit of theillegally procured confessions. The fact that the original"contaminated" source consisted of three wrongfully obtainedconfessions - rather than an illegal arrest or unlawfully seizedphysical evidence - was not deemed worthy of discussion. Writing for theCourt, Justice Stewart quickly, and without analytical hesitation,invoked what he obviously considered a general principle:

[P]etitioner testified only after the Government had illegallyintroduced into evidence three confessions, all wrongfully obtained, andthe same principle that prohibits the use of confessions so procuredalso prohibits the use of any testimony impelled thereby - the fruit ofthe poisonous tree, to invoke a time-worn metaphor. For the"essence of a provision forbidding the acquisition of evidence in acertain way is that ... it shall not be used at all." Silverthorne....

... If [the petitioner testified at his first trial] in order toovercome the impact of confessions illegally obtained and henceimproperly introduced, then his testimony was tainted by the sameillegality that rendered the confessions themselves inadmissible.(320)

Harrison demonstrates that the basic principles underlyingSilverthorne, Nardone, and Wong Sun have not been and should not belimited to unconstitutional searches and illegal taps.(321)Nevertheless, considering the case's particular facts, it must besaid that Harrison would probably be decided differently today - forreasons that provide no comfort to Amar and Lettow.

The poisonous tree in Harrison consisted of mere McNabb-Malloryviolations,(322) not coerced confessions, and in Elstad the Courtindicated that nowadays the poisonous tree doctrine only applies toevidence stemming from constitutional violations.(323) The Elstad Courtrepeatedly compared and contrasted violations of the "prophylacticMiranda procedures" unaccompanied by "actual coercion"with "police infringement[s] of the Fifth Amendmentitself."(324)

Secondly, Harrison was a case in which the fruits hung a considerabledistance from the trunk of the poisonous tree. More specifically, Ithink a majority of the present Court would conclude - as the dissentersmaintained in Harrison - that the exclusion of the derivative evidencewould have little or no deterrent value, because it was highly unlikelythat the police officers who violated the petitioner's rightsforesaw his testimony at his first trial as a product of theirillegality.(325) According to dissenting Justice White:

[I]t cannot realistically be supposed that the police are spurred onto greater illegality by any rational supposition that success in thatillicit endeavor will make it more likely that the defendant will makeincriminatory admissions on the witness stand. If this is the case ...then suppression of the petitioner's testimony, even if it was infact induced by the wrongful admission into evidence of an illegalconfession, does not remove a source of further temptation to the policeto [act lawlessly].(326)

But this argument has no application to the cases Amar and Lettowhave in mind - cases in which the police coerce a suspect into revealingthe location of the murder weapon or the proceeds of a bank robbery orthe wallet of a mugging victim. In these instances the connectionbetween the fruits and the primary illegality has not "become soattenuated as to dissipate the taint."(327) The derivativeevidence, rather, is the probable and foreseeable product of the primaryillegality - and a motivating force behind it. As one commentatorrecently observed, in reliance on four different interrogation manuals:"Expert interrogators have long recognized, and continue toinstruct, that a confession is a primary source for determining theexistence and whereabouts of the fruits of a crime, such as documents orweapons."(328)

Amar and Lettow do not challenge the view that a principal purpose -if not the primary purpose - of interrogation is to obtain informationsuch as the location of physical evidence. Indeed, they agree, evidentlyregarding this as a reason for admitting evidence derived from coercedconfessions. "[P]hysical leads," they note at one point,"are often more important to law enforcement than gettingstatements for use in court."(329)

F. Nix v. Williams (Williams II)

One Supreme Court confession case, Nix v. Williams (WilliamsII),(330) remains to be considered. Although this case did not involvethe fruits of a coerced confession, it comes close.

Williams, an Iowa defendant, was suspected of murdering aten-year-old girl. He made incriminating statements to the police andled them to the ditch where the body was hidden.(331) The first time thecase reached the Court, in Brewer v. Williams (William I),(332) theconviction was reversed on the ground that the defendant'sstatements had been obtained in violation of his Sixth Amendment rightto counsel or, more specifically, the Massiah doctrine.(333) But theCourt noted that if Williams were retried, "evidence of where thebody was found and of its condition might well be admissible on thetheory that the body would have been discovered in any event, even hadincriminating statements not been elicited from Williams."(334)

Williams was retried and reconvicted. At the second trial neither hisstatements nor the fact that he had directed the police to thechild's body was offered in evidence. However, when the stateestablished by a preponderance of the evidence that a large search partywould have discovered the body within a short time in essentially thesame condition as it was actually found even if no statements had beenobtained from Williams, evidence concerning the body's location andcondition was admitted.(335)

In Williams II, the Court affirmed the defendant's secondconviction, adopting an "inevitable discovery" exception tothe poisonous tree doctrine.(336) Earlier Supreme Court cases hadrecognized an "independent source" exception, admittingderivative evidence if knowledge of it had been obtained from alegitimate source independent of the police Misconduct.(337) The Courtviewed the inevitable discovery exception - sometimes called the"hypothetical independent source" rule - as only a slightvariation on the independent source exception.(338)

Although Williams II held that the discovery of the body came withinthe inevitable discovery exception, the case should provide no comfortto Amar and Lettow. Neither the State of Iowa nor any member of theCourt thought it noteworthy that physical evidence does not"testify" or that corpses do not "speak."(339)Although the physical evidence included "the results of post mortemmedical and chemical tests on the body,"(340) neither the State norany Justice thought Schmerber relevant. Neither the Court nor any of thebriefs cited Schmerber at all.

Nobody suggested, as Amar and Lettow contend, that the law should"simply presume - irrebuttably - that somehow, some way, the truthand the fruit might have to come to light anyway."(341) Everymember of the Court, as well as the State, operated on the premise thatunless the linkage between Williams's inadmissible statements andthe physical evidence were severed, the evidence would have to beexcluded.

Early in his opinion for the Court, Chief Justice Burger made plainthat he viewed the Silverthorne-Wong Sun line of cases as representing acapacious principle:

The doctrine requiring courts to suppress evidence as the tainted"fruit" of unlawful governmental conduct had its genesis inSilverthorne ....

Wong Sun extended the exclusionary rule to evidence that was theindirect product or "fruit" of unlawful police conduct, butthere again the Court emphasized that evidence that has been illegallyobtained need not always be suppressed ....

Although Silverthorne and Wong Sun involved violations of the FourthAmendment, the "fruit of the poisonous tree" doctrine has notbeen limited to cases in which there has been a Fourth Amendmentviolation. The Court has applied the doctrine where the violations wereof the Sixth Amendment as well as of the Fifth Amendment.(342)

Williams II cites Murphy and Kastigar, not only as cases illustratingthe application of the poisonous tree doctrine, but also as casesadopting the independent source exception.(343) In rejecting thecontention that use and derivative use immunity inadequately protects awitness from various possible incriminating uses of the compelledtestimony, the Kastigar Court had pointed out that the prohibition onderivative use "barr[ed] the use of compelled testimony as an`investigatory lead'"(344) and that once a defendantdemonstrates that he has testified under an immunity grant, theauthorities must show that "their evidence is not tainted byestablishing that they had an independent, legitimate source for thedisputed evidence."(345) This, the Kastigar Court told us, "isvery substantial protection, commensurate with that resulting from ...the privilege itself."(346)

The Court's references to Murphy and Kastigar are notsurprising. In successfully urging the Court to adopt an inevitablediscovery exception and to use it to admit the disputed evidence, theState of Iowa relied on Kastigar - the case Amar and Lettow dislike somuch - and quoted language from that case to assure the Court thatneither an independent source nor an inevitable discovery exceptionwould "eviscerate the exclusionary rule":(347)

The State is still required to show what amounts to an"independent, legitimate source" for disputed evidence, arequirement which this Court, in a similar context, has characterized as"a substantial protection" against abuse. See Kastigar ....Any evidence that has been obtained by illegal means which would notinevitably or independently have been discovered is still subject to itsbite.(348)

But Amar and Lettow would admit physical evidence derived from acoerced confession even though the evidence would not have beendiscovered inevitably or independently. Williams II emphasized that theindependent source and inevitable discovery exceptions are notinconsistent with the rationale behind the exclusionary rule, becausethe rationale is that "the prosecution is not to be put in a betterposition than it would have been in if no illegality hadtranspired,"(349) and the independent source and inevitablediscovery exceptions do not really do that. If the evidence would havebeen lawfully obtained in any event, the exceptions only put theprosecution "in the same, not a worse, position tha[n] they wouldhave been in if no police ... misconduct had occurred."(350)However, because Amar and Lettow would admit the tangible fruits of acoerced confession regardless of whether they would have been discoveredin any event, their approach would often place the government in abetter position than it would have enjoyed if no unconstitutional policeaction had taken place.

I realize that the disputed evidence in Williams II grew out of aMassiah violation(351) rather than a coerced confession. But why shouldthat matter? The Court told us in Williams II that the poisonous treedoctrine applies to violations of the Fifth Amendment as well as thoseof the Fourth and Sixth.(352) And it considered the Fifth Amendmentimmunity cases relevant in discussing the issues raised by that case.Why would it disregard these Fifth Amendment cases when confronted bythe tangible fruits of a coerced confession - a Fifth Amendmentviolation in its most pristine form?

Moreover, a coerced confession will almost always constitute morepurposeful and more flagrant police misconduct than a Massiahviolation.(353) The more serious the police lawlessness, the wider thesweep of the poisonous tree doctrine should be.(354)

V. Some Final Comments

Amar and Lettow miss things in the Supreme Court's decisionsthat are there and see things that are not.(355)

Amar and Lettow seem to be unaware that, for more than thirty years,the dominant rationale for excluding coerced confessions has been theCourt's disapproval of and attempts to discourage the offensivepolice methods that produce such confessions, regardless of theirreliability. They do not even cite, let alone discuss, such leadingpolice methods confession cases as Rogers v. Richmond,(356) Jackson v.Denno,(357) and Colorado v. Connelly.(358) As a result, one unfamiliarwith the law and literature of coerced confessions would never know,after reading the Amar-Lettow article, that there is such a thing as apolice methods test for considering the admissibility of confessions.

As we have seen, in Kastigar v. United States(359) the Court adoptedthe view that protection against the use and derivative use of compelledutterances and the scope of the privilege are coterminous. Amar andLettow leave their readers with the impression that what they label theCourt's "newfangled immunity rule"(360) sprang fullgrownfrom the head of Zeus. They seem unable or unwilling to grasp that thisnewfangled rule may be regarded as either (i) a reaffirmation ofCounselman's intermediate holding that the privilege againstself-incrimination prohibits the use of evidence derived from compelledtestimony as well as the testimony itself, or (ii) a specificapplication of the poisonous tree doctrine.

Nowhere do they discuss Counselman's intermediate holding. Nordo they discuss the poisonous tree doctrine. They do not tell theirreaders that the national commission that recommended use and derivativeuse immunity and the Congress that enacted it into law and the Courtthat approved it in Kastigar an operated on the premise that thepoisonous tree doctrine applies to coerced confessions and compelledtestimony. Amar and Lettow seem either unable or unwilling to grasp thatboth Congress and the Kastigar Court went as far as they did -protection against derivative use - because the poisonous tree doctrinewent that far, and stopped where they did - short of absolute immunityagainst prosecution - because that is where the poisonous tree doctrinestopped.

Kastigar stands squarely in Amar and Lettow's path. I do not seehow that case can be explained or appraised without discussing thepoisonous tree doctrine. Yet Amar and Lettow do just that; remarkably,they fail to discuss the American poisonous tree doctrine anywhere intheir article.(361)

Amar and Lettow are contending, in essence, either that the poisonoustree doctrine should not be an intrinsic part of the Fifth Amendmentexclusionary rule, or that the poisonous tree doctrine should not applyto Fifth Amendment violations as it applies to other constitutionalviolations, or both. Yet they never tell their readers what therationale is for the poisonous tree doctrine, or why or how or when thedoctrine came about, or what its scope is. At no point in their articledo they cite, let alone discuss, two of the leading, and the two oldest,poisonous tree cases, Silverthorne(362) and Nardone.(363)

As noted earlier, Amar and Lettow rely heavily on Schmerber v.California.(364) But this time they see things that are not there. Theyview Schmerber as drawing a sharp fine, or at least furnishing supportfor the drawing of such a line, between compelled words and theirreliable physical fruits. But no evidence in that case was derived fromcompelled words, because there were no compelled words. No fruits ofpolice misconduct were involved in Schmerber, because there was nomisconduct.

Schmerber tells us that - absent any antecedent Fifth Amendmentviolation that enables the government to acquire the evidence - theacquisition of real or physical evidence does not violate the privilege.Schmerber does not tell us, and it cannot plausibly be read as tellingus, that the nontestimonial nature of derivative evidence, like somesorcerer's amulet, creates a bubble that envelops the evidence andshields it from the contamination of unconstitutional police action.

The blood test evidence was admitted in Schemerber, Justice Brennanwas careful to tell us, because it was neither the defendant'stestimony nor evidence relating to some communicative act" byhim.(365) But, relying in part of Schmerber, Amar and Lettow would admitphysical evidence that is derived from a defendant's compelled"communicative act."

Justice Brennan, who wrote the majority opinion in Schmerber, spentsix pages discussing whether the chemical analysis of thedefendant's blood should be excluded "as the product of anunreasonable search and seizure."(366) Why would he have botheredif the withdrawal of blood - or the acquisition of nontestimonialevidence generally - enjoyed a special immunity from the poisonous treedoctrine?

One might argue that although an antecedent Fourth Amendmentviolation may fatally taint the acquisition of nontestimonial evidence,an antecedent Fifth Amendment violation cannot. But why not? After all,the poisonous tree doctrine applies to violations of the FifthAmendment, as well as the Fourth.

A year after he wrote the majority opinion in Schmerber, JusticeBrennan, again writing for the Court, applied the poisonous treedoctrine to a violation of defendant's Sixth Amendment right tocounsel at a pretrial lineup.(367) He told us that a courtroomidentification by a government witness would be allowed if theprosecution could establish that it was based upon observations of thedefendant independent of those illegal lineup identification - citingfor authority the Fifth Amendment immunity grant case, Murphy v.Waterfront Commission.(368) This is further evidence that the Courtviews the poisonous tree doctrine as a general principle applicable tovarious constitutional violations, not a rule limited to the search andseizure setting.

More recently, the Court applied the poisonous tree doctrine, and itsexceptions, to the fruits of statements obtained in violation of theSixth Amendment right to counsel.(369) Once again, the Court pointed outthat the poisonous tree doctrine had not been limited to violations ofthe Fourth Amendment. It had, the Court reminded us, been applied aswell to violations of the Fifth. For authority, the Court cited twoimmunity grant cases, Murphy and Kastigar.(370)

As we have seen, Amar and Lettow gain much comfort from the Mirandaderivative evidence cases. Here, too, I venture to say, they see thingsthat are not there. In Michigan v. Tucker(371) and, a decade later, inOregon v. Elstad,(372) the Court did admit the verbal fruits of Mirandaviolations. But both Tucker and Elstad are Miranda cases, not cases"deal[ing] with the constitutional privilege against compulsoryself-incrimination in its most pristine form."(373)

The Tucker Court made clear that the underlying police misconduct"did not abridge respondent's constitutional privilege againstcompulsory self-incrimination, but departed only from the prophylacticstandards later laid down by this Court in Miranda."(374) Thus"[t]he question for decision" presented in Tucker was"how sweeping the judicially imposed consequences of [a]disregard" of Miranda's "procedural rules" - and"an inadvertent disregard," to boot - should be.(375)

Elstad relied heavily on the reasoning in Tucker. "Since therewas no actual infringement of the suspect's constitutionalrights" in Tucker, recalled the Elstad Court, that case "wasnot controlled by the doctrine expressed in Wong Sun that fruits of aconstitutional violation must be suppressed."(376) The Elstad Courtfelt that it was not bound by the poisonous tree doctrine because, as itperceived the matter, a victim of a Miranda violation "has sufferedno identifiable constitutional harm."(377) Added the Court:"If errors are made by law enforcement officers in administeringthe prophylactic Miranda procedures, they should not breed the sameirremediable consequences as police infringement of the Fifth Amendmentitself."(378)

Amar and Lettow maintain that the Court has been "chippingaway" at Kastigar "in the context of Mirandawarnings."(379) This is like saying the courts have been chippingaway at Roe v. Wade(380) in the contexts of physician-assisted suicideand active voluntary euthanasia. The more relevant question is whetherthe Court has been chipping away at Kastigar in its own bailiwick - in a"pure" (not "prophylactic") Fifth Amendment context.Amar and Lettow point to no cases in which the Supreme Court has.

Finally, Amar and Lettow point out that their goal can be achieved by"an extension of the inevitable discovery doctrine"(381) - by"simply presum[ing] - irrebuttably - that somehow, some way, thetruth and the fruit might have come to fight anyway."(382)

This is not an argument, only a conclusion. This is analogous tosaying that abolition of the search and seizure exclusionary rule can bebrought about (i) by simply expanding the doctrine permitting the use ofillegally seized evidence for impeachment purposes until it engulfs theexclusionary rule itself, or (ii) by simply expanding the"standing" requirement so that nobody has standing tochallenge the admissibility of evidence seized in violation of theConstitution, or (iii) by simply extending the so-called good faithexception to the exclusionary rule until it applies to all illegalsearches and seizures.

Amar and Lettow recognize that "at first glance" theirapproach may "seem like a startling break from currentinterpretations,"(383) but they quickly add, "[I]t is merelyan extension of [several] current doctrines or trends."(384) I havegiven the Amar-Lettow approach a second glance - and a third and afourth. It still looks like "a startling break from currentinterpretations" to me.(**) (1.) See Akhil Reed Amar & Renee B.Lettow, Fifth Amendment First Principles: The Self-incrimination Clause,93 Mich. L. Rev. 857 (1995). (2.) See id. at 858-59, 898-901, 908-09,926-27. (3.) 142 U.S. 547 (1892). The case is discussed at considerablelength infra in text accompanying notes 237-63. (4.) Ullmann v. UnitedStates, 350 U.S. 422,437 (1956). Although the Counselman opinion went onto say that an immunity grant is valid only when it affords"absolute immunity against future prosecution for the offence towhich the question relates," 142 U.S. at 586, what may fairly becalled the case's intermediate holding - what a later Court calledits "conceptual basis," see Kastigar v. United States, 406U.S. 441, 453 (1972) - was that the Fifth Amendment protects against thederivative use, as well as the use, of compelled utterances. See infratext accompanying notes 251-61. (5.) 406 U.S. 441 (1972). The case isdiscussed at considerable length infra in text accompanying notes268-79. (6.) Walter V. Schaefer, The Suspect and Society: criminalProcedure and Converging Constitutional Doctrine 78 (1967) (the text oflectures delivered shortly before the Supreme Court decided Miranda v.Arizona, 384 U.S. 436 (1966)). (7.) See Yale Kamisar, Kauper's"Judicial Examination of the Accused" Forty Years Later - SomeComments on a Remarkable Article, 73 Mich. L. Rev. 15, 15 n.3 (1974),reprinted in Yale Kamisar, Police Interrogation and Confessions 77,77-78 n.1 (1980) (discussing Paul G. Kauper, Judicial Examination of theAccused - A Remedy for the Third Degree, 30 Mich. L. Rev. 1224 (1932)).(8.) 378 U.S. 478 (1964). (9.) 384 U.S. 436 (1966). (10.) See Schaefer,supra note 6, at 76-81; Henry J. Friendly, The Fifth Amendment Tomorrow:The Case for Constitutional Change, 37 U. Cin. L. Rev. 671, 713 &n.180 (1968) ("endorsing" Justice Schaefer's proposal andnoting "a rather similar proposal" by Professor Kauper); seealso Kamisar, supra note 7, at 93-94. (11.) Schaefer, supra note 6, at80-81 (emphasis added); see also Kauper, supra note 7, at 1239, 1252,1255. (12.) See Schaefer, supra note 6, at 78, 80; Friendly, supra note10, at 721-22; see also Donald A. Dripps, Foreword: Against PoliceInterrogation - And the Privilege Against Self-Incrimination 78 J. Crim.L. & Criminology 699, 730-31 (1988); Phillip E. Johnson, A StatutoryReplacement for the Miranda Doctrine, 24 Am. Crim. L. Rev. 303, 309 n.15(1987); Stephen A. Saltzburg, Miranda v. Arizona Revisited:Constitutional Law or Judicial Fiat, 26 Washburn L.J. 1, 25 (1986).(13.) Amar & Lettow, supra note 1, at 908-09. As for statementsobtained by the police "before stationhouse custody commences - atthe scene of the crime, on the street corner, in the squad car, andelsewhere," all that Amar and Lettow have to say is that "niceproblems will arise." Id at 909. They will indeed. As JudgeFriendly noted, "A declaration that the privilege does not apply toquestioning before arrival at the station obviously would not do; theroute from the place of apprehension would too often rival thatsupposedly taken by the driver with a gullible foreigner in hiscab." Friendly, supra note 10, at 715. But Friendly was uncertainabout how to deal with "the intermediate area of post-arrest,pre-station house interrogation." Id at 716. (14.) Amar &Lettow, supra note 1, at 909. (15.) Id. at 919. (16.) Judge Schaefer, onthe other hand, would exclude the fruits of improperly obtainedstatements. After setting forth his proposal for judicially supervisedinterrogation, he adds: "An additional safeguard is desirable ...which places upon the prosecution the burden of establishing that theevidence which it offers is not the product of any statement of theaccused procured by improper means." Schaefer, supra note 6, at 81(emphasis added).

At this point, Judge Schaefer cites to a footnote in Murphy v.Waterfront Commission, 378 U.S. 52 (1964). This footnote informs us thatin order to assure that the government does not make use of compelledtestimony or its fruits, once a defendant demonstrates that he hastestified under an immunity grant, the authorities "have the burdenof showing that their evidence is not tainted by establishing that theyhad an independent, legitimate source for the disputed evidence."378 U.S. at 79 n.18 (emphasis added). (17.) Amar and Lettow do notquestion the "well-founded belief that ... where the police useforbidden means to obtain confessions, they do so more for the purposeof discovering clues than for the purpose of manufacturing admissibleevidence." Model Code of Evidence Rule 505 cmt. c (1942), discussedin Austin W. Scott, Jr., Federal Control over Use of Coerced Confessionsin State Criminal Cases - Some Unsettled Problems, 29 Ind. L.J. 151, 157& n.32 (1954). For more recent observations to the same effect, seethe quotations infra in text accompanying note 328 and infra in note329. Indeed, Amar and Lettow acknowledge that "physical leads areoften more important to law enforcement than getting statements for usein court." Amar & Lettow, supra note 1, at 922 n.286 footnoteomitted). (18.) Friendly, supra note 10, at 714-15. (19.) Manycommentators - and I am one of them - consider this a serious weaknessin Miranda. See Yale Kamisar, Wayne R. LaFave & Jerold H. Israel,Modern Criminal Procedure 541-42 (8th ed. 1994) (discussing this issueand citing authorities). (20.) Amar & Lettow, supra note 1, at 909(emphasis added). (21.) The available empirical data indicate that alarge number of police officers do not give the silence or counselwarnings at all, and many who do give them fail to do so in a meaningfulway. Moreover, it appears that a significant percentage of suspectseither misunderstand the existing warnings or fail to appreciate theirsignificance. See Lawrence S. Leiken, Police Interrogation in Colorado:The Implementation of Miranda, 47 Denv. L.J. 1, 15-16, 33 (1970);Richard J. Medalie et al. Custodial Police Interrogation in OurNation's Capital: The Attempt to Implement Miranda, 66 Mich. L.Rev. 1347, 1375 (1968); Project, Interrogations in New Haven: The Impactof Miranda, 76 Yale L.J. 1519, 1550-52, 1571-72, 1613-15 (1967). Againstthis background, how can anyone suggest that we make the Mirandawarnings more complicated, yet continue to rely on the uncorroboratedoral testimony of the police?

Actually, the Amar-Lettow proposal would lead not only to a revisedMiranda warning but to a much shortened one. The suspect would not betold of his right to counsel - either his own or one provided by thegovernment - before or during any questioning because he would not havesuch a right at the "pre-magistrate, pre-lawyer" stage. But hewould be told that "he must be brought before a magistrate and alawyer within a short time (say, five hours)." Amar & Lettow,supra note 1, at 909 (emphasis added). (22.) Amar & Lettow, supranote 1, at 858; see also id. at 919 ("Schmerber was right toemphasize the distinction between testimony and physical evidence, butlater decisions have failed to follow its logic to the end. Only thedefendant's compelled testimony should be protected by the [Fifth]Amendment."). In Schmerber v. California, 384 U.S. 757 (1966), theCourt upheld the taking of a blood sample of an injured person by aphysician, at police direction, over the person's objection. Thecase is discussed at considerable length infra in text accompanyingnotes 112-37. (23.) Amar & Lettow, supra note 1, at 895. (24.) Id.(footnote omitted). (25.) Some twenty-eight pages after making thestatement quoted above, Amar and Lettow tell us that Judge Friendly"noted that the main motivation behind extending the privilege[against self-incrimination] to informal proceedings must have been `thetruly dreadful risk of the false confession.'" Id at 923(emphasis added). What Judge Friendly actually said was that "aprime motive for extending the privilege to out-of-court proceedingsmust have been the Court's belief that the traditional due processapproach did not sufficiently protect against the truly dreadful risk ofthe false confession." Henry J. Friendly, A Postscript on Miranda,in Benchmarks 266, 281-82 (1967) (emphasis added). At this point, JudgeFriendly specifically refers to n. 24 of the Miranda opinion, whereChief Justice Warren notes that then-current police interrogationpractices - which the Court found to be at odds with the privilegeagainst self-incrimination - "may even give rise to a falseconfession." 384 U.S. at 455 n.24 (emphasis added). N. 24 thendiscusses People v. Whitmore, 257 N.Y.S.2d 787 (Sup. Ct. 1965), revd.,278 N.Y.S.2d 706 (App. Div. 1967), cert. denied, 405 U.S. 956 (1972), aNew York case where a person of limited intelligence confessed tovarious crimes that he did not commit.

As Professor Schulhofer has pointed out, "the core ofMiranda" is that informal pressure to speak can constitutecompulsion within the meaning of the privilege and that this element ofinformal compulsion is present in any custodial police interrogation.See Stephen J. Schulhofer, Reconsidering Miranda, 54 U. Chi. L Rev. 435,436 (1987). The Miranda Court relegates to a footnote the point thatthis informal compulsion may also - "may even," to use theCourt's words - produce a false confession. With all respect, Ithink Judge Friendly is making a mountain out of a footnote.

It may be true that the then-recent Whitmore case, which was adreadful episode, gave the Court another reason or an extra incentive toextend the privilege to out-of-court proceedings. But I do not thinksuch speculation constitutes much support for the Amar-Lettow view thatthe unreliability of a coerced confession is the touchstone for itsinadmissibility. Certainly, Chief Justice Warren, author of the Mirandaopinion, did not think so. Six years earlier, the Court, again speakingthrough the Chief Justice, had pointed out:

[T]he Fourteenth Amendment forbids "fundamental unfairness inthe use of evidence, whether true or false." Consequently, we haverejected the argument that introduction of an involuntary confession isimmaterial where other evidence establishes guilt or corroborates theconfession. As important as it is that persons who have committed crimesbe convicted, there are considerations which transcend the question ofguilt or innocence.

Blackburn v. Alabama, 361 U.S. 199, 206 (1960) (quoting Lisenba v.California, 314 U.S. 219, 236 (1941)) (citations omitted). (26.) Seegenerally Charles T. McCormick, Evidence 226 (1st ed. 1954); 3 JohnHenry Wigmore, A Treatise on the Anglo-American System of Evidence inTrials at Common Law [sections] 822 (3d ed. 1940). (27.) See, e.g., 2H.C. Underhill A Treatise on the Law of Criminal Evidence [sections] 404(Philip F. Herrick ed., 5th ed. 1956); 2 Francis Wharton, Wharton'sCriminal Evidence [subsections] 357-58 (Ronald A. Anderson ed., 12th ed.1955); 3 Wigmore, supra note 26, [subsections] 856-59.

Amar and Lettow note that some thirty-five years ago I stated thatwhen a coerced confession leads to the uncovering of physical evidence,the lower courts usually admit such evidence. See Amar & Lettow,supra note 1, at 917 n.265. I did say that. See Yale Kamisar, Wolf andLustig Ten Years Later: Illegal State Evidence in State and FederalCourts, 43 Minn. L. Rev. 1083, 1115 n.109 (1959). But Amar and Lettow donot point out that I was criticizing the rule - that I was arguing thata rule admitting the fruits of a coerced confession could not bereconciled with the new rationale for excluding coerced confessions. Seeid. at 1115. As I wrote in the same footnote referred to by Amar andLettow:

[I]f one of the purposes of the confession doctrine is to protectindividuals from "coercive" practices, regardless of the truthor falsity of the particular confession obtained as a result, then"not only would confessions resulting from such practices beexcluded, but any evidence gained as a `fruit' of the confession[would be denied admission]. ... Otherwise police and prosecutingauthorities will be not inhibited from carrying on `coercive'practices." Yale Kamisar, Wolf and Lustig Ten Years Later: IllegalState Evidence in State and Federal Courts, 43 Minn. L. Rev. 1083, 1115n.109 (1959) (quoting with approval Comment Material Witnesses and"Involuntary" Confessions, 17 U. Chi. L. Rev. 706, 715-16(1950)). (28.) Model Code of Pre-Arraignment Procedure [sections] 150.4cmt. at 410 (Am. Law Inst., Proposed Official Draft 1975) (footnoteomitted); John MacArthur Maguire, evidence of Guilt: Restrictions uponIts Discovery or Compulsory Disclosure (126-27 & n.19 (1959) (notingthat some state courts admit the entire confession or at least thoseparts specifically corroborated when the confession receives"circumstantial verification," but questioning whether thisrule could be squared with the rationale of recent Supreme Court cases);see also supra note 27 (citing authorities). (29.) 297 U.S. 278 (1936).(30.) 384 U.S. 436 (1966). (31.) See Yale Kamisar, What is an"Involuntary' Confession? 17 Rutcher L. Rev. 728, 741-47(1963), reprinted in Kamisar, supra note 7, at 1, 10-15. (32.) Roger J.Traynor, The Devils of Due Process in Criminal Detection, Detention, andTrial, 33 U. Chi. L. Rev. 657, 665 (1966) (pre-Miranda). (33.) CharlesT. McCormick, The Scope of Privilege in the Law of Evidence, 16 Texas L.Rev. 447, 457 (1938); see also McCormick, supra note 26, at 154-57.(34.) Maguire, supra note 28, at 127; see also id at 109. (35.) MonradG. Paulsen, The Fourteenth Amendment and the Third Degree, 6 Stan. L.Rev. 411, 429 (1954). (36.) See Francis A. Allen, The Supreme Court,Federalism, and State Systems of Criminal Justice, 8 DePaul L. Rev. 213,235 (1959). Professor Allen refers specifically to Ashcraft v.Tennessee, 322 U.S. 143 (1944), but I think his observation is even moreapplicable to more recent cases such as Spano v. New York, 360 U.S. 315(1959); Blackburn v. Alabama, 361 U.S. 199 (1960); and Rogers v.Richmond, 365 U.S. 534 (1961). (37.) Schaefer, supra note 6, at 10(based on a lecture delivered before Miranda). "Indeed," addedJustice Schaefer, the Supreme Court has sometimes insisted upon theexclusion of confessions whose reliability was not at all indoubt." Id. at 10-11. (38.) 365 U.S. 534 (1961). (39.) 365 U.S. at542. (41.) 365 U.S. at 540-41. For other emphatic statements of thepolice-methods rationale for excluding involuntary or coercedconfessions, see Jackson v. Denno, 378 U.S. 368, 376-77, 385-86 (1964),and Lego v. Twomey, 404 U.S. 477, 485 (1972). (42.) Otis H. Stephens,Jr., The Supreme Court and Confessions of Guilt 117 (1973). (43.) 1Wayne R. LaFave & Jerold H. Israel, Criminal Procedure [sections6.2, at 443 (1984) (footnote omitted). (44.) Model Code ofPre-Arraignment Procedure [section] 150.4, cmt. at 410-10 Inst.,Proposed Official Draft 1975). (45.) Henry J. Friendly, Mr. JusticeFrankfurter, in Benchmarks, supra note 25, at 318-19 (footnote omitted).(46.) Amar & Lettow, supra note 1, at 895. (47.) Paulsen, supra note35, at 428. Professor Paulsen was among the first commentators to callattention to the emerging police methods rationale for the admissibilityof confessions. See also Francis A. Allen, The Wolf Case: Search andSeizure, Federalism and the Civil Liberties, 45 Ill. L. Rev. L. Rev. 1,26-29 (1950); Bernard D. Meltzer, Involuntary Confessions: TheAllocation of Responsibility Between Judge and Jury, 21 U. Chi. L. Rev.317,343,348 (1954). (48.) See the quotations from JusticeFrankfurter's opinions infra in note 54 and accompanying text andinfra in text accompanying note 104. (49.) See supra text accompanyingnotes 37-44. (50.) Haley v. Ohio, 332 U.S. 596, 607 (1948) (Frankfurter,J., concurring). (51.) For use of this terminology, see Pitler, supranote *. Professors LaFave and Israel explain:

In the simplest of exclusionary rule cases, the challenged evidenceis quite clearly "direct" or "primary" in itsrelationship to the prior arrest, search, interrogation, [or] lineup ...Not infrequently, however, challenged evidence is "secondary"or "derivative" in character. This occurs when, for example, aconfession is obtained after an illegal arrest [or] physical evidence islocated after an illegally obtained confession .... In these situations,it is necessary to determine whether the derivative evidence is"tainted" by the prior constitutional or other violation. 1LaFave & Israel, supra note 43, [sections] 9.3(a), at 734. (52.)Amar and Lettow observe that there seems to be "no U.S. SupremeCourt case ... that actually excludes physical fruits of a coercedconfession." Amar & Lettow, supra note 1, at 917 n.265. Iagree. But Amar and Lettow might have added that there does not appearto be any Supreme Court case actually admitting the physical fruits of acoerced confession either.

Interestingly, in Kastigar v. United States, 406 U.S. 441 (1972),which upheld use and derivative use immunity, as opposed totransactional immunity, the Court assumed that the fruits of a coercedconfession had to be excluded along with the confession itself Indeed,in upholding use and derivative use immunity, the Court drew an analogyto coerced confessions. See infra text accompanying note 284. Eightyears earlier, concurring in Murphy v. Waterfront Commission, 378 U.S.52 (1964), Justice White, joined by Justice Stewart, had assumed thesame thing. See 378 U.S. at 92 (White, J., concurring); see also infratext accompanying notes 170-72.

For a discussion of possible reasons why the Court never specificallyaddressed the question whether the fruits of a coerced confession areadmissible, see infra text accompanying notes 289-304. It should benoted that the Court did apply the poisonous tree doctrine toconfessions inadmissible on grounds other than coercion. See infra textaccompanying notes 318-50. (53.) People v. Ditson, 369 P.2d 714, 727(Cal. 1962), vacated as moot, 371 U.S. 541 (1963). (54.) 369 P.2d at 727(citation omitted). The first inner quote comes from JusticeFrankfurter's opinion for the Court in Rochin v. California, 342U.S. 165, 173 (1952), which is discussed at considerable length infra intext accompanying notes 84-89, 104. According to the Rochin Court,"Use of involuntary verbal confessions ... is constitutionallyabnoxious not only because of their unreliability. They are inadmissibleunder the Due Process Clause even though statements contained in themmay be independently established as true. Coerced confessions offend thecommunity's sense of fair play and decency." 342 U.S at 173.

The second inner quote comes from Justice Frankfurter's opinionfor the Court in Watts v. Indiana, 338 U.S. 49 (1949):

In holding that the Due Process Clause bars police procedure whichviolates the basic notions of our accusatorial mode of prosecuting crimeand vitiates a conviction based on the fruits of such procedure, weapply the Due Process Clause to its historic function of assuringappropriate procedure before liberty is curtailed or life is taken. 338U.S. at 55. (55.) 378 U.S. 1 (1964). (56.) Lawrence Herman, The SupremeCourt and Restrictions on Police Interrogation 25 Ohio ST. L.J. 449, 465(1964). (57.) 378 U.S. at 7 (quoting Bram v. United States, 168 U.S.532, 542 (1897)). (58.) See infra text accompanying notes 237-61. (59.)See infra text accompanying notes 275-79. (60.) Miller v. Fenton, 474U.S. 104, 110 (1985) (citations omitted); see also Colorado v. Connelly,479 U.S. 157, 163 (1986) ("The Court has retained this due processfocus, even after holding, Maloy v. Hogan, that the Fifth Amendmentprivilege against compulsory even self-incrimination applies to theStates." (citation omitted)) (61.) 474 U.S. 104 (1985). (62.) 474U.S. at 110 (emphasis added). (63.) 474 U.S. at 110. (64.) 474 U.S. at109 (emphasis added). Immediately after quoting Rogers v. Richmond withapproval, Justice O'Connor added: "[A]ccordingly, tactics foreliciting inculpatory statements must fall within the broadconstitutional boundaries imposed by the Fourteenth Amendment'sguarantee of fundamental fairness." 474 U.S. at 110 (emphasisadded). (65.) 417 U.S. 433 (1974). (66.) See 417 U.S. at 440-46. Tuckerupheld the admissibility of the testimony of a witness whose identityhad been revealed by a statement obtained from the defendant inviolation of Miranda. In rejecting the contention that the poisonoustree doctrine should bar the testimony because the police never wouldhave learned of the witness's existence but for their unlawfulquestioning, Justice Rehnquist implied that the doctrine applies only toconstitutional violations: "[T]he police conduct at issue here didnot abridge [the defendant's] constitutional privilege againstcompulsory self-incrimination, but departed only from the prophylacticstandards laid down by this Court in Miranda to safeguard thatprivilege." 417 U.S. at 445-46.

I share Professor (now Provost) Stone's conclusion that the viewthat a violation of the Self-Incrimination Clause occurs only if aconfession is "involuntary" under pre-Miranda standards"is an outright rejection of the core premises of Miranda" and"is flatly inconsistent with the Court's declaration inMiranda that "[t]he requirement of warnings and waiver of rights isa fundamental with respect to the Fifth Amendment privilege."Geoffrey R. Stone, The Miranda Doctrine in the Burger Court, 1977 Sup.Ct. Rev. 99, 118-19 (quoting Miranda v. Arizona, 384 U.S. 436, 476(1966)). For additional criticism of Tucker, see Yale Kamisar, The"Police Practice" Phases of the Criminal Process and the ThreePhases of the Burger Court in The Burger Years 143, 151-53 (HermanSchwartz ed., 1987); Larry J. Ritchie, Compulsion that Violates theFifth Amendment The Burger Court's Definition, 61 Minn. L. Rev.383, 416-18 (1977); David Sonenshein, Miranda and the Burger Court.Trends and Countertrends, 13 Loy. U. Chi. L.J. 405, 423-429 (1982).Although Justice Rehnquist's opinion for the Court in Tucker hasbeen strongly criticized, it is fairly clear that a majority of thepresent Court subscribes to Tucker's way of thinking about Miranda.In both her concurring opinion in New York v. Quarles, 467 U.S. 649(1984) and her majority opinion in Oregon v. Elstad, 470 U.S. 298(1985), Justice O'Connor relied heavily on the distinction theTucker Court drew between violations of Miranda's prophylacticrules and actual infringements of the Fifth Amendment. See infra textaccompanying notes 180-83, 187-89, 201. (67.) Stone, supra note 66, at123. (68.) 417 U.S. at 441 (emphasis added) (citations omitted). (69.)479 U.S. 157 (1986). (70.) 479 U.S. at 163. (71.) 479 U.S. at 166-67(quoting Lisenba v. California, 314 U.S. 219, 236 (1941)) (citationomitted). (72.) George E. Dix, Federal Constitutional Confession Law.The 1986 and 1987 Supreme Court Terms, 67 Texas L. Rev. 231, 276 (1988);see also Laurence A. Benner, Requiem for Miranda: The RehnquistCourt's Voluntariness Doctrine in Historical Perspective, 67 Wash.U. L.Q. 59, 139-43 (1989). (73.) Amar & Lettow, supra note 1, at895. (74.) Alan M. Dershowitz & John Hart Ely, Harris v. New York:Some Anxious Observations on the Candor and Logic of the Emerging NixonMajority, 80 Yale L.J. 1198, 1219 (1971). (75.) Cf. Brown v. Illinois,422 U.S. 590 (1975) (excluding incriminating statements obtained from anillegally arrested suspect even though, before making the statements,the suspect had been given the Miranda warnings and had waived his Fifthand Sixth Amendment rights). The Brown Court pointed out that to admitthe statements under the circumstances would motivate the police to makeillegal arrests "encouraged by the knowledge that evidence derivedtherefrom could well be made admissible at trial by the simple expedientof giving Miranda warnings." 422 U.S. at 602 (footnote omitted).(76.) Dershowitz & Ely, supra note 74, at 1221. (77.) Thejustification for the "independent source" and"inevitable discovery" exceptions to the poisonous treedoctrine, on the other hand, is that if the derivative evidence"has been discovered by means wholly independent of anyconstitutional violation" or "inevitably would have beendiscovered by lawful means," the government should be put "inthe same, not a worse, position [than] they would have been if no policeerror or misconduct had occurred." Nix v. Williams (William II),467 U.S. 431, 443-44 (1984). (78.) See supra text accompanying notes37-44, 62-64, 68-71. (79.) See, eg., Oregon v. Elstad, 470 U.S. 298, 309(1985). (80.) Rochin v. California, 342 U.S. 165,172-73 (1952). (81.)Miller v. Fenton, 474 U.S. 104, 109 (1985). (82.) See Natl. Commn. onLaw Enforcement, Pub. No. 11, Report on Lawlessness in Law Enforcement(1931). (83.) Stephen J. Schulhofer, The Fifth Amendment at Justice. AReply, 54 U. Chi. L. Rev. 950, 956 (1987) (footnote omitted). Forspecific examples, see Schulhofer, supra note 25, at 448 n.26 and WelshS. White, Defending Miranda: A Reply to Professor Caplan, 39 Vand. L.Rev. 1, 13-14 & n.73 (1986). (84.) 342 U.S. 165 (1952). (85.) 342U.S. at 166. (86.) Justices Black and Douglas wrote separate concurringopinions, maintaining that the police had violated the defendant'sprivilege against compulsory self-incrimination. But the privilege hadnot yet been deemed applicable to the states and, in any event, theprevailing view was that the privilege did not afford direct protectionagainst nontestimonial compulsion. (87.) 342 U.S. at 174. (88.) 342 U.S.at 173 (quoting Brown v. Mississippi, 297 U.S. 278, 286 (1936)). (89.)342 U.S. at 173. (90.) Cf. United States v. Downing, 665 F.2d 404 (1stCir. 1981); see also infra note 97 (discussing Downing). (91.) I amassuming that the prosecution could not establish that the evidencederived from the keys and questioning about the keys fell within one ofthe recognized exceptions to the poisonous tree doctrine - for example,that the airplane and its contents would inevitably have been discoveredeven if the police had not violated the defendant's rights.

In United States v. Crews, 445 U.S. 463 (1980), the Court referred tothe "three commonly advanced exceptions" to the poisonous treedoctrine - where the government has learned of the derivative evidencefrom an "independent source," where the evidence would"inevitably" have been discovered lawfully, and where theconnection between the police violation and the derivative evidence hasbecome so "attenuated" as to dissipate the taint. 445 U.S. at470. See generally 1 LaFave & Israel, supra note 43, [sections] 9.3(c)-(e),- at 736-42; Pitler, supra note *. For application of theinevitable discovery exception, see Nix v. Williams, 467 U.S. 431(1984), discussed infra in text accompanying notes 330-54.

In my two hypothetical variations on Rochin (for the secondhypothetical, see infra text accompanying notes 93-97), I do not thinkit can be said that the connection between the derivative evidence andthe police misconduct has become so attenuated as to dissipate thetaint. (92.) In Nueslein v. District of Columbia, 115 F.2d 690 (D.C.Cir. 1940), Judge (later Chief Justice) Vinson observed, "Officersshould not be encouraged to proceed in an irregular manner on the chancethat all will end well." 115 F.2d at 694. Nueslein excluded avoluntary incriminating statement because the officers were in aposition to hear the defendant's remark only because they hadentered his home illegally. (93.) Cf. Beecher v. Alabama, 389 U.S. 35(1967). (94.) Cf. Malinski v. New York, 324 U.S. 401 (1945). (95.) Cf.Rogers v. Richmond, 365 U.S. 534 (1961). (96.) Cf. Ashcraft v.Tennessee, 322 U.S. 143 (1944). (97.) Consider United States v. Downing,665 F.2d 404 (1st Cir. 1981). After he was taken into custody andadvised of his Miranda rights, the defendant explicitly stated that hewished to see a lawyer before talking further. This request wasdisregarded. The drug enforcement agents then instructed the defendantto empty his pockets and surrender various articles, including somekeys. When asked what the keys were for, the defendant told the agentsthat they belonged to his Cessna airplane. When asked by the policewhere the plane was located, defendant told them where it was parked.This was the first time any of the drug enforcement agents learned ofthe plane's existence.

On the basis of this information, law enforcement agents obtained awarrant and searched the plane. The search uncovered charts and otherdocuments. The officers then questioned airport employees, who madecertain statements implicating defendant in a drug conspiracy.

In an opinion by Chief Judge Coffin, joined by Judge (now SupremeCourt Justice) Breyer and Judge Bonsal, the court held that unless theevidence would have been obtained independently of the defendant'sstatements to the agents - and the court of appeals remanded the case tothe district court to determine this issue - the tangible andtestimonial evidence gathered by searching the plane and questioningairport employees should be excluded, as well as the defendant'sstatements about the existence and location of his airplane: "[I]norder to deter the impermissible police conduct here we must exclude theevidentiary fruits of appellee's statements as well as thestatements themselves." 665 F.2d at 409.

The government relied heavily on Michigan v. Tucker, 417 U.S. 433(1974), see supra text accompanying notes 65-67, but the courtdistinguished Tucker in part on the ground that that case was"rooted in the distinction between a violation of the FifthAmendment and a violation of "the prophylactic rules developed toprotect that right."' 665 F.2d at 408 (quoting Tucker, 417U.S. at 439). In the instant case, on the other hand, defendant had"asserted his Fifth Amendment right [to have counsel present at any[interrogation] and the federal official violated that right bycontinuing interrogation." 665 F.2d at 408. (98.) Cf. Rochin v.California, 342 U.S. 165, 173 (1952) ("It would be a stultificationof the responsibility which the course of constitutional history hascast upon this Court to hold that in order to convict a man the policecannot extract by force what is in his mind but can extract what is inhis stomach."). (99.) Wolf v. Colorado, 338 U.S. 25, 27 (1949).Justice Frankfurter, writing in Wolf, drew upon Justice Cardozo'sfamous language in Palko v. Connecticut, 302 U.S. 319, 325 (1937).(100.) At the very least, there is, as Professor Francis Allen onceobserved, "a certain inelegance in speaking of rights `very basicto a free society' or in indulging in what appears to be almost acomparison of superlatives." Francis A. Allen, Federalism and theFourth Amendment. A Requiem for Wolf, 1961 Sup. Cr. Rev. 1, 9 (footnoteomitted); see also Kamisar, supra note 27, at 1123-24. (101.) Blackburnv. Alabama, 361 U.S. 199, 206 (1960). (102.) Oregon v. Elstad, 470 U.S.298, 368 (1985) (Stevens, J., dissenting). (103.) See infra textaccompanying notes 180-87, 195-210. (104.) 342 U.S. at 172-73. (105.)Amar & Lettow, supra note 1, at 927. (106.) Id. at 927-28. (107.)384 U.S. 757 (1966). (108.) Amar & Lettow, supra note 1, at 919.(109.) Id. at 885. (110.) Id at 880. (111.) Id. at 911. (112.) 384 U.S.757 (1966). (113.) 384 U.S. at 764. (114.) 384 U.S. at 765. (115.) As aleading commentator on evidence observed twelve years before theSchmerber case was decided, according to the prevailing view - one"expounded by Wigmore and widely accepted in recent opinions"- the privilege furnishes protection only against "testimonialcompulsion." McCormick, supra note 26, at 264. In thosejurisdictions that followed the prevailing view, continued ProfessorMcCormick, "the accused without breach of this privilege may be ...physically examined, may have his blood and other bodily fluids takenfor tests without his consent, may be required to give a specimen of hishandwriting ... and may be forced to participate in a police `lineup.'" Id. at 264-65 (emphasis added).

Under a second, and minority, view of the privilege, observedMcCormick, "the line is drawn between enforced passivity on thepart of the accused and enforced activity on his part." Id. at 265.But even under this view, "the prisoner could, for example, berequired to submit to finger-printing and the extraction of blood"Id. (emphasis added).

Finally, under a third and distinctly minority view, "anyevidence secured by compulsion from the prisoner, whether by requiringhim to act or by his mere passive submission, is within theprivilege." Id. at 266. But, added McCormick, "Presumably nocourt today would carry out such a notion consistently, as to do sowould prevent such established practices as compulsory finger-printingand requiring the accused at the trial to stand up foridentification." Id. (116.) 218 U.S. 245 (1910). (117.) 218 U.S. at252. (118.) 218 U.S. at 252-53. (119.) Amar & Lettow, supra note 1,at 885. (120.) See id at 919. (121.) Id. at 892-93. (122.) In Nardone v.United States, 308 U.S. 338 (1939), the case that first used the phrasefruit of the poisonous tree, 308 U.S. at 341, the Court observed that"[t]o forbid the direct use of methods [in this instance, illegalwiretapping] ... but to put no curb on their full indirect use wouldonly invite the very methods deemed `inconsistent with ethical standardsand destructive of personal liberty.'" 308 U.S. at 340. (123.)Schmerber, 384 U.S. at 765 (emphasis added) (footnote omitted); see alsoDoe v. United States, 487 U.S. 201, 211 n.10 (1988) ("[TheSchmerber] Court distinguished between the suspect's beingcompelled himself to serve as evidence and the suspect's beingcompelled to disclose or communicate information or facts that nightserve as or lead to incriminating evidence."); Oregon v. Elstad,470 U.S. 298, 350 n.32 (1985) (Brennan, J., dissenting) ("Schmerberhad nothing to do with the derivative-evidence rule, but held only thatthe evidence compelled in the first instance in that case - bloodsamples - was nontestimonial in nature."). (124.) Pennsylvania v.Muniz, 496 U.S. 582, 593 (1990). (125.) Cf. Payne v. Arkansas, 356 U.S.560 (1958). (126.) Cf. Mincey v. Arizona, 437 U.S. 385 (1978). (127.)Cf. Wong Sun v. United States, 371 U.S. 471, 488 (1963). (128.)Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). Thiscase is considered the genesis of the poisonous tree doctrine, as itlater came to be called. (129.) United States v. Crews, 445 U.S. 463,470 (1980) (footnote omitted); see also Nix v. Williams, 467 U.S. 431,441 (1984) (noting that the "fruits" doctrine applies to otherincriminating evidence derived from the illegally obtained evidence).(130.) 1 LaFave & Israel, supra note 43, at 443. (131.) See infratext accompanying notes 275-79, (132.) Counselman v. Hitchcock, 142 U.S.547, 585 (1892) (quoting Emery's Case, 107 Mass. 172, 182 (1871)).This view of the scope of the privilege against self-incrimination hasbeen reaffirmed many times. See infra text accompanying notes 257-61.(133.) See Amar & Lettow, supra note 1, at 889. (134.) Cf. Holt v.United States, 218 U.S. 245, 253 (1910). (135.) Cf. Schmerber v.California, 384 U.S. 757, 765 (1966). (136.) Cf. Doe v. United States,487 U.S. 201, 213 (1988) ("[The policies of the privilege] areserved when the privilege is asserted to spare the accused from havingto reveal, directly or indirectly, his knowledge of facts relating himto the offense ...."). (137.) Cf 487 U.S. at 211 n.10 "[TheSchmerber] Court distinguished between the suspect's beingcompelled himself to serve as evidence and the suspect's beingcompelled to disclose or communicate information or facts that mightserve as or lead to incriminating evidence."). (138.) 466 U.S. 740(1984). (139.) See South Dakota v. Neville, 459 U.S. 553 (1983). (140.)See 466 U.S. at 754. The parties agreed that if a person were unlawfullyarrested, his refusal to take a breath test would be reasonable andtherefore could not be grounds for the revocation of a driver'slicense. See 466 U.S. at 744. (141.) See United States v. Jacobsen, 466U.S. 109 (1984). (142.) See Jacobsen, 466 U.S. at 117. In Jacobsen, theresults of the chemical test of a trace amount of white powder were heldadmissible because the initial invasions of the package containing thepowder were occasioned by the acts of a private freight carrier. Afteropening the package pursuant to a written company policy regardinginsurance claims and after noticing a white powdery substance,originally concealed under many layers of wrappings, employees of thefreight carrier notified the Drug Enforcement Administration of theirdiscovery. Under the circumstances, "the federal agents did notinfringe any constitutionally protected privacy interest that had notalready been frustrated as the result of private conduct." 466 U.S.at 126. (143.) See 4 Wayne R. LaFave, Search and Seizure: A Treatise onthe Fourth Amendment [sections] 11.4(f), at 423 (2d ed. 1987). (144.)See 3 id [sections] 8.2(d). (145.) Id. at 190. In such instances, somecourts say that the consent was not voluntary, but as Professor LaFaveemphasizes, "the evidence obtained by the purported consent shouldbe held admissible only if it is determined that the consent was bothvoluntary and not an exploitation of the prior illegality." Id.(146.) See Work v. United States, 243 F.2d 660, 662 (D.C. Cir. 1957).The court did call attention to the fact that the trash receptacle wasunder the stone porch of the house, not beyond the curtilage, but Ithink the main reasoning of the court - and standard application of thepoisonous tree doctrine - would have led to the same result even if thetrash receptacle had been at the curb in front of the defendant'shouse. (147.) 277 U.S. 438 (1928). (148.) 277 U.S. at 464. But as was tobecome most significant later, in Olmstead no violation of the FourthAmendment had preceded the use of the sense of hearing. (149.) See Pub.L. No. 416, 48 Stat. 1064, 1103-04 (repealed by Crime Control Act of1968); see also Kamisar, LaFave Israel, supra note 19, at 363-65(discussing statute and citing authorities); Nardone v. United States,302 U.S. 379 (1937); Weiss v. United States, 308 U.S. 321 (1939). (150.)Olmstead was finally overruled by Katz v. United States, 389 U.S. 347(1967). In Katz, Justice Stewart, uttering the famous line "theFourth Amendment protects people, not places," wrote for the Courtthat "the reach of [the Fourth] Amendment cannot turn upon thepresence or absence of a physical intrusion into any givenenclosure." 389 U.S. at 351, 353. (151.) 365 U.S. 505 (1961).(152.) 365 U.S. at 506-07. (153.) 365 U.S. at 509-10. (154.) Wong Sun v.United States, 371 U.S. 471 (1963); see also infra text accompanyingnotes 305-17 (discussing Wong Sun). (155.) 371 U.S. at 485 (citationsomitted). (156.) Hoffman v. United States, 341 U.S. 479, 486 (1951),quoted with approval in Malloy v. Hogan, 378 U.S. 1, 11 (1964). (157.)378 U.S. 1 (1964). Malloy held that the privilege againstself-incrimination applied to the state via the Fourteenth Amendment andthat under the applicable federal standard, the state court had erred inruling that the privilege was not properly invoked. 378 U.S. at 3.(158.) 378 U.S. at 13 (footnote omitted). (159.) 378 U.S. 52 (1964).(160.) See, e.g., 378 U.S. at 79 ("[A] state witness may not becompelled to give testimony which may be incriminating under federal lawunless the compelled testimony and its fruits cannot be used in anymanner by federal officials in connection with a criminal prosecutionagainst him." (emphasis added)). (161.) See, e.g., Edward J.Imwinkelried et al., Courtroom Criminal Evidence [sections] 1733 (1993);1 LaFave & Israel, supra note 43, [sections] 8.11(b), at 685-90;Charles H. Whitebread & Christopher Slobogin, Criminal Procedure[sections] 15.04(b)(1) (3d ed. 1993); Note, Standards for Exclusion inImmunity Cases after Kastigar and Zicarelli, 82 Yale L.J. 171 (1972).(162.) 142 U.S. 547 (1892). Counselman is discussed in considerabledetail infra in text accompanying notes 237-61. (163.) 378 U.S. at 105(White, J., concurring). (164.) Amar & Lettow, supra note 1, at 877.(165.) 378 U.S. at 106-07 (White, J., concurring). (166.)"Following Murphy, Congress adopted a new immunity provision forfederal witnesses, replacing transactional immunity with a prohibitionagainst use and derivative use as to both federal and stateprosecutions." 1 LaFave & Israel, supra note 43, at 686. Thenew federal provision was upheld in Kastigar v. United States, 406 U.S.441 (1972), which quoted portions of Justice White's concurringopinion in Murphy with approval. Kastigar is discussed in considerabledetail infra in text accompanying notes 268-79. (167.) See 378 U.S. at92-93, 101-03, 106 (White, J., concurring). (168.) See 378 U.S. at102-03 (White, J., concurring). (169.) 378 U.S. at 103 (White, J.,concurring). (170.) I say that Justice White assumed this becausealthough he evidently thought it obvious that the fruits of a coercedconfession would have to be excluded, as well as the confession itself -unless the government came within a recognized exception to thepoisonous tree doctrine - as Amar and Lettow note, there seems to be noSupreme Court case precisely on point. See supra note 52. (171.) 378U.S. at 103 (White, J., concurring). (172.) 378 U.S. at 102 (White, J.,concurring). (173.) When the Court adopted Justice White's views onthe appropriate scope of immunity eight years later in Kastigar v.United States, 406 U.S. 441 (1972), it also relied on an analogy tocoerced confessions, and it also assumed that the fruits of a confessionhad to be excluded along with the confession itself. In Kastigar theCourt observed: A coerced confession, as revealing of leads as testimonygiven in exchange for immunity, is inadmissible in a criminal trial, butit does not bar prosecution. Moreover, a defendant against whomincriminating evidence has been obtained through a grant of immunity maybe in a stronger position at trial than a defendant who asserts a FifthAmendment coerced-confession claim. One raising a claim under thisstatute need only show that he testified under a grant of immunity inorder to shift to the government the heavy burden of proving that all ofthe evidence it proposes to use was derived from legitimate independentsources. On the other hand, a defendant raising a coerced-confessionclaim under the Fifth Amendment must first prevail in a voluntarinesshearing before his confession and evidence derived from it becomeinadmissible. 406 U.S. at 461-62 (emphasis added) (footnotes omitted).

For an elaboration of the point that either the general poisonoustree doctrine itself or Counselman and its view that the Fifth Amendmentexclusionary rule has what might be called a "built-in"poisonous tree doctrine was the basis for the federal immunity statuteat issue in Kastigar as well as for the Court's view that a ban onthe use and derivative use of compelled testimony was necessary andsufficient to satisfy the Fifth Amendment, see infra text accompanyingnotes 275-79. (174.) See Amar & Lettow, supra note 1, at 858, 880,911. (175.) 467 U.S. 649 (1984). (176.) 467 U.S. at 652. (177.) 467 U.S.at 655. (178.) 467 U.S. at 660 (O'Connor, J., concurring in partand dissenting in part). (179.) See Amar & Lettow, supra note 1, at881-82, 911, 928. (180.) When Justice O'Connor speaks of"nontestimonial evidence derived from informal custodialinterrogation," 467 U.S. at 660, it is clear, at least when onereads her opinion in its entirety, that she means evidence derived froman interrogation that violates the Miranda rule, but not the coercedconfession rule. See 467 U.S. at 661 (O'Connor, J., concurring inpart and dissenting in part) ("The Miranda Court for the first timemade the Self-Incrimination Clause applicable to responses induced byinformal custodial police interrogation, thereby requiring suppressionof many admissions that, under traditional due process principles, wouldhave been admissible." (emphasis added)); see also 467 U.S. at 668(O'Connor, J., concurring in part and dissenting in part) ("Tobe sure, admission of nontestimonial evidence secured through informalcustodial interrogation will reduce the incentives to enforce theMiranda code." (emphasis added)). (181.) 467 U.S. at 672(O'Connor, J., concurring in part and dissenting in part). (182.)467 U.S. at 670 (O'Connor, J., concurring in part and dissenting inpart). (183.) 467 U.S. at 671 (O'Connor, J., concurring in part anddissenting in part) (emphasis added). The United States, which filed anamicus brief in the Quarles case supporting the State of New York,conceded that a gun or other nontestimonial evidence derived from acompelled statement - rather than a violation of Miranda's"prophylactic rules" - should be excluded: Counselman involveda statement compelled by the threat of punishment for contempt, but wewould agree that nontestimonial evidence derived from a statement thathas been compelled by police interrogation practices that overbear thewill of a suspect should also not be admitted into evidence.

... [In this case, the] gun is nontestimonial evidence derived notfrom a statement shown to be compelled but from a statement obtained (weassume arguendo) in violation of the prophylactic rules of Miranda -rules that preclude the use of many statements that are not themselvesin fact compelled. When nontestimonial evidence is directly linked tocompelled statements, it is plausible to say that the values underlyingthe Self-Incrimination Clause would be offended by the use ofnontestimonial evidence .... Brief for the United States as AmicusCuriae Supporting Petitioner at 27, Quarles (No. 82-1213) (citationsomitted). (184.) 467 U.S. at 688 (Marshall, J., dissenting). (185.)Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). (186.)Wong Sun v. United States, 371 U.S. 471 (1963). Wong Sun is discussedinfra in text accompanying notes 305-17. (187.) 467 U.S. at 671 n.4(O'Connor, J., concurring in part and dissenting in part) (citationomitted). (188.) Miller v. Fenton, 474 U.S. 104, 109 (1985). (189.) 467U.S. at 672 (O'Connor, J., concurring in part and dissenting inpart) (quoting Kastigar v. United States, 406 U.S. 441, 462 (1972))(emphasis added); see also supra note 173 (discussing Kastigar); infratext accompanying notes 268-79 (same). (190.) Hudson County Water Co. v.McCarter, 209 U.S. 349, 355 (1908) (Holmes, J.). (191.) Amar &Lettow, supra note 1, at 928 ("Justice O'Connor has pointedthe way [to the Amar-Lettow view that the physical fruits of compelledtestimony and coerced confessions should be admissible] in Quarles,where she suggested always allowing fruits in for mere Mirandaviolations."); see also id. at 881-82, 911. (192.) See infra textaccompanying notes 237-79. (193.) For the full setting in which thisquotation appears, see infra text accompanying note 284. (194.) Quarles,467 U.S. at 663 (O'Connor, J., concurring in part and dissenting inpart). The one exception is the Edwards rule, which is triggered when acustodial suspect asserts his right to counsel. See Edwards v. Arizona,451 U.S. 477 (1981); Arizona v. Roberson, 486 U.S. 675 (1988); Minnickv. Mississippi, 498 U.S. 146 (1990). (195.) 467 U.S. at 672(O'Connor, J., concurring in part and dissenting in part). (196.)470 U.S. 298 (1985). (197.) 470 U.S. at 307. (198.) 470 U.S. at 308.(199.) Elstad may be read very narrowly or quite broadly.

The narrow reading: The record is bereft of any factual support forthe conclusion that the defendant's incriminating statement at hisfirst meeting with the police caused him to confess, after he was fullyadvised of his rights and waived them, at the second meeting. Moreover,the confession made at the second meeting was not the product ofintentional exploitation of the prior improper conduct by the police.There is no evidence that the police took advantage of the priorillegality in any way, for example, by confronting the defendant with,or reminding him of, his earlier statement. If, for example, the policehad told the defendant that because he had admitted his presence at thescene of the burglary when he was first questioned, he might as wellgive them a full account of his involvement in the crime now that he wasbeing questioned again, the result might have been different. Finally,the failure to advise the defendant of his Miranda rights at the firstmeeting was arguably inadvertent or only a borderline Miranda violation.If, for example, the defendant had asserted his right to counsel at thefirst meeting and the police had refused to honor that right, the resultmight have been different. Such a violation of Miranda might have beenviewed as deliberate police misconduct calculated or likely to underminethe defendant's powers of resistance. At one point JusticeO'Connor distinguished cases such as Elstad, where the policefailed to advise a suspect of his Miranda rights at their first meeting,from cases "concerning suspects whose invocation of their rights toremain silent and to have counsel present were flatly ignored whilepolice subjected them to continued interrogation." 470 U.S. at 313n.3.

Thus, there is some support in the majority opinion for dissentingJustice Stevens's view that "the Court intends its holding toapply only to a narrow category of cases in which the initialquestioning of the suspect was made in a totally uncoercive setting andin which the first confession obviously had no influence on thesecond." 470 U.S. at 364 (Stevens, J., dissenting) (footnoteomitted).

Even if Elstad applies to all Miranda violations that fall short ofactual coercion, the case may not apply to all types of derivativeevidence. Elstad does not deal specifically with the admissibility ofphysical or nontestimonial evidence derived from a Miranda violation;the Court has never explicitly addressed that issue. See Massachusettsv. White, 439 U.S. 280 (1978), affg. by an equally divided CourtCommonwealth v. White, 371 N.E.2d 777 (Mass. 1977) (holding thatphysical evidence obtained from a Miranda violation must be excluded).See also Patterson v. United States, 485 U.S. 922 (1988), where JusticeMute; joined by Justice Brennan in dissenting from the denial ofcertiorari, observed that Elstad "did not squarely address thequestion [whether physical evidence derived from a Miranda violation isadmissible) ... and in fact, left the matter open." 485 U.S. at 923(White, J., dissenting).

Dissenting in Elstad, Justice Brennan, joined by Justice Marshall,maintained that "[n]otwithstanding the sweep of the Court'slanguage, [the majority] opinion surely ought not be read as alsoforeclosing application of the traditional derivative-evidencepresumption to physical evidence obtained as a proximate result of aMiranda violation," noting that the majority "relies heavilyon individual `volition' as an insulating factor insuccessive-confession cases" - a factor altogether missing in thecontext of inanimate evidence." 470 U.S. at 347 n.29 (Brennan, J.,dissenting). Justice Brennan also noted that "most courtsconsidering the issue have recognized that physical evidence proximatelyderived from a Miranda violation is presumptively inadmissible."470 U.S. at 347 n.29 (Brennan, J., dissenting). According to David A.Wollin, however, "[f]ollowing Elstad federal and state courts havealmost uniformly ruled that the prosecution can introduce nontestimonialfruits of a Miranda violation in a criminal trial. The poisonous treedoctrine will be applicable only if there is evidence of actual coercionor other circumstances designed to overbear the suspect'swill." Wollin, supra note *, at 835-36 (footnotes omitted).

The broad reading: At several places in her opinion for the Court,Justice O'Connor tells us that the poisonous tree doctrine assumesthe existence of an underlying constitutional violation - for example, aviolation of the Fourth Amendment or "police infringement of theFifth Amendment itself." 470 U.S. at 309; see also 470 U.S. at304-05, 308. Because it is plain that, according to a majority of theCourt, a Miranda violation does not qualify as a "constitutionalviolation," one may conclude that the poisonous tree doctrine doesnot apply to Miranda violations at all - whether the fruit is a secondconfession or the testimony of a government witness or physicalevidence. Moreover, at one point Justice O'Connor writes as if theCourt had already decided that the tangible fruits of a Mirandaviolation are admissible. Thus, after discussing Michigan v. Tucker, 417U.S. 433 (1974), which upheld the admissibility of the testimony of agovernment witness who was discovered as a result of a Miranda violationbecause, inter alia, the third-party witness's testimony did notviolate the defendant's Fifth Amendment rights, she adds: "Webelieve that [the reasoning of Tucker] applies with equal force when thealleged `fruit' of a noncoercive Miranda violation is neither awitness nor an article of evidence but [as in the instant case] theaccused's own voluntary testimony." 470 U.S. at 308 (emphasisadded).

For purposes of this essay, I shall assume that the poisonous treedoctrine does not apply to noncoercive Miranda violations at all. (200.)See Amar & Lettow, supra note 1, at 881-82, 911, 928. (201.) 470U.S. at 305, 308 (emphasis added). Justice O'Connor refers toMichigan v. Tucker, 417 U.S. 433 (1974), a case that dealt with theadmissibility of the testimony of a witness whose identity had beenlearned by questioning the defendant without giving him full Mirandawarnings. In holding that the witness's testimony was admissible,the Court viewed the Miranda warnings as "not themselves rightsprotected by the Constitution" but only "prophylacticstandards" designed to "safeguard" or to "providepractical reinforcement for the right against compulsoryself-incrimination." 417 U.S. at 444-46. Tucker is discussed suprain note 66. (202.) See Oregon v. Hass, 420 U.S. 714 (1975); Harris v.New York, 401 U.S. 222 (1971). (203.) See Mincey v. Arizona, 437 U.S.385 (1978) (coerced confession); New Jersey v. Portash, 440 U.S. 450(1979) (compelled testimony). (204.) 401 U.S. 222 (1971); see alsoOregon v. Hass, 420 U.S. 714 (1975) (presenting a variation of thefactual situation in Harris). For powerful criticism of Harris, seeDershowitz & Ely, supra note 74. (205.) 437 U.S. 385 (1978). (206.)437 U.S. at 398; see also 437 U.S. at 402 ("Due process of lawrequires that statements obtained as these were cannot be used in anyway against a defendant at his trial."). (207.) 440 U.S. 450(1979). (208.) 440 U.S. at 459. (209.) 440 U.S. at 458 (emphasis added).(210.) 440 U.S. at 458. (211.) See generally Friendly, supra note 25.(212.) See New York v. Quarles, 467 U.S. 649, 668 (1984) (O'Connor,J,, concurring in part and dissenting in part). (213.) See Amar &Lettow, supra note 1, at 889. (214.) Friendly supra note 25, at 282. Ayear later, when he delivered the Robert S. Marx Lectures at the Collegeof Law at the University of Cincinnati, Judge Friendly reiterated thisconcern: Yet it can be argued against [the proposal to admit the fruitsof Miranda violations] that anything short of extending the Miranda codeto fruits and leads will fail to end the "third degree." Facedwith the alternatives of obeying the code, with its dampening effect onthe giving of answers, and using coercive methods in the hope ofobtaining unusable answers that will yield usable fruits, the police, itwill be asserted, will invariably opt for the latter. Friendly, supranote 10, at 712 (footnote omitted). (215.) Id. at 712 n.176; see alsoWollin, supra note *, at 845 (pointing out that "[e]xpertinterrogators have long recognized, and continue to instruct, that aconfession is a primary source for determining the existence andwhereabouts of the fruits of a crime, such as documents orweapons") (footnote omitted). In a footnote, Wollin quotes from orrefers to various interrogation manuals. See id. at 145 n.202. (216.)Amar & Lettow, supra note 1, at 922 n.286. (217.) See infra textaccompanying notes 230-36. (218.) See Quarles, 467 U.S. at 671(O'Connor, J., concurring in part and dissenting in part); Amar& Lettow, supra note 1, at 887. (219.) Friendly, supra note 25, at280 (footnote omitted). (220.) 384 U.S. 757 (1966). (221.) See suprasection II.A. (222.) 218 U.S. 245 (1910). (223.) See Friendly, supranote 25, at 280 n.67. (224.) 218 U.S. at 252-53. For further discussionof Holt see supra text accompanying notes 116-18. (225.) Friendly, supranote 10, at 709, 712 (emphasis added) (footnote omitted). Thus, althoughthere appears to be no Supreme Court case precisely on point, see supranote 52, Judge Friendly assumed that the poisonous tree doctrine appliedto coerced confessions and barred the used of physical evidence derivedfrom such confessions. The Court assumed the same thing in Kastigar. Seeinfra text accompanying note 284. So did Justices White and Stewart,concurring in Murphy v. Waterfront Commission, 378 U.S. 52, 103 (1964).See supra text accompanying notes 170-72. So did Justice Blackmun,concurring in Pillsbury Co. v. Conboy, 459 U.S. 248, 278 (1983). Seeinfra notes 283, 286. (226.) Friendly, supra note 25, at 280 (emphasisadded). (227.) Id. (228.) See supra note 225 and accompanying text.(229.) Friendly, supra note 25, at 280. (230.) Friendly, supra note 25,at 282. The reference is to Johnson v. New Jersey, 384 U.S. 719 (1966),which held that Miranda only applied to cases in which the trial beganafter the date of that decision. (231.) Amar & Lettow, supra note 1,at 895; see also id at 922-23. (232.) See id. at 901 (referring to JudgeFriendly's "wise and influential lectures on theSelf-incrimination Clause"). Perhaps I should add that I share Amarand Lettow's high regard for Judge Friendly. I served with him -and some thirty others - on the Advisory Committee to the American LawInstitute's Model Code of Pre-arraigmuent Procedure project fornine eventful years and came away with the impression that he was thewisest adviser of all. (233.) Recall that when the Court held in NewJersey v. Portash, 440 U.S. 450 (1979), that coerced or compelledutterances - as opposed to statements obtained in violation of Miranda -could not be used for impeachment purposes, it remarked that whendealing with a Fifth Amendment violation "in its most pristineform," the balancing of competing interests "isimpermissible." 440 U.S. at 459. (234.) See supra note 225 andaccompanying text. (235.) Miller v. Fenton, 474 U.S. 104, 109 (1985). AsJustice O'Connor observed for the majority in Miller, the Court"has long held that certain interrogation techniques ... are sooffensive to a civilized system of justice that they must be condemnedunder the Due Process Clause of the Fourteenth Amendment." 474 U.S.at 109. (236.) Friendly, supra note 10, at 712. (237.) 142 U.S. 547(1892). (238.) See Hal M. Koontz & Jeffrey C. Stodel, Note, TheScope of Testimonial Immunity Under the Fifth Amendment, 6 Loy. L.A. L.Rev. 350, 361 (1973). (239.) 142 U.S. at 564, 585-86. (240.) See 142U.S. at 584. (241.) 142 U.S. at 585. (242.) 107 Mass. 172 (1871). (243.)142 U.S. at 585 (quoting Emery's Case, 107 Mass. at 182). (244.)See Amar & Lettow, supra note 1, at 915-16. (245.) 142 U.S. at557-58, 586. (246.) 142 U.S. at 586. (247.) See Kastigar v. UnitedStates, 406 U.S. 441, 454-55 (1972). After stating that the "broadlanguage in Counselman [about the need for a valid statute to provide`absolute immunity'] ... was unnecessary to the Court'sdecision, and cannot be considered binding authority," the Courtnoted that "[l]anguage similar to the Counselman dictum can befound in" two other cases. 406 U.S. at 454-55 & n.39.

Consider also Murphy v. Waterfront Commission, 378 U.S. 52 (1964):The [Counselman] Court established for the first time that the coverageof the privilege extended to not only a confession of the offense butalso disclosures leading to discovery of incriminating evidence, amatter of considerable doubt at the time.... In a dictum indicating thatsome immunity statutes are valid, the Court added that "a statutoryenactment, to be valid, must afford absolute immunity...." 378 U.S.at 105-06 (White, J., concurring). (248.) 142 U.S. at 586. (249.) Thiswas the argument that petitioners made unsuccessfully in Kastigar v.United States, 406 U.S. 441, 459-62 (1972), discussed infra in textaccompanying notes 268-79. Although use and derivative use immunity wasupheld in Kastigar, various organizations, "including the AmericanBar Association and the Commissioners on Uniform State Laws, [have]urged retention of transactional immunity, and a majority of statescontinue to provide the broader immunity." 1 LaFave & Israel,supra note 43, [sections] 8.11(b), at 687-88 (footnote omitted). For auseful summary of the debate between the proponents of the two types ofimmunity, see 1 id [sections] 8.11(b), at 688-90. (250.) Koontz &Stodel, supra note 238, at 361 n.78. The state courts were split betweenthose upholding the constitutionality of testimonial immunity statutesand those rejuiring immunity statutes to provide complete immunity fromprosecution for the crimes disclosed by the compelled testimony. See idAfter noting this division in the state courts, the Counselman Courtexplicitly chose to follow the state cases requiring complete, ortransactional, immunity. See id. (251.) See Robert G. Dixon, Jr.,Comment on Immunity Provisions, in 2 Working Papers of the NationalCommission on Reform of Federal Criminal Laws 1405, 1430-31 (1970)("[T]he essence of Counselman is its use restriction language, andnot the additional loose statement from which the absolute immunity hasbeen derived. It would seem, therefore, that the traditionally broaderlanguage used in Federal immunity statutes, which raises a questionconcerning the use of independent evidence, is unneeded."). For thesignificance of Professor Dixon's comprehensive immunity study, seeinfra text accompanying note 280. (252.) 142 U.S. at 586. (253.)Kastigar v. United States, 406 U.S. 441, 453 (1972). (254.) Amar &Lettow, supra note 1, at 875-76. Compare the description of the samecase in Ullmann v. United States, 350 U.S. 422 (1956): [I]n Counselman,a unanimous Court had found [an immunity statute] constitutionallyinadequate ... because the immunity granted was incomplete, in that itmerely forbade the use of the testimony given and failed to protect awitness from future prosecution based on knowledge and sources ofinformation obtained from the compelled testimony. 350 U.S. at 436-37(citation omitted); see also Pillsbury Co. v. Conboy, 459 U.S. 248, 274(1983) (Blackmun, J., concurring) ("In Counselman v. Hitchcock thisCourt held that [a statute only providing testimonial immunity] couldnot be used to compel a witness to testify against himself, because itdid not provide protection coextensive with the Fifth Amendment."citation omitted)). (255.) See Amar & Lettow, supra note 1, at 858.(256.) See The American Heritage Dictionary (2d college ed. 1985) (anold and stale joke); The Random House College Dictionary (rev. ed. 1975,1988) (an old or stale joke); Webster's Unabridged Dictionary ofthe English Language (1989) (an old or stale joke); cf Chambers EnglishDictionary (1988) (a stale joke or cliche). (257.) Hoffman v. UnitedStates, 341 U.S. 479, 486 (1951) (Clark, J.). (258.) Murphy v.Waterfront Commn., 378 U.S. 52, 79 (1964) (Goldberg, J.) (citingCounselman). (259.) Gardner v. Broderick, 392 U.S. 273, 276 (1968)(Fortas, J.) (citing Counselman). (260.) Lefkowitz v. Turley, 414 U.S.70, 78 (1973) (White, J.). (261.) Doe v. United States, 487 U.S. 201,213 (1988) (Blackmun, J.). (262.) 1 LaFave & Israel, supra note 43,[sections] 8.11(b), at 685. (263.) Kastigar v. United States, 406 U.S.441, 452 (1972) (footnote omitted). (264.) 378 U.S. 52 (1964). (265.)See 378 U.S. at 79. There is language to the same effect in Gardner v.Broderick, 392 U.S. 273, 276 (1968). See also People v. La Bello, 249N.E.2d 412, 414 (N.Y. 1969) (viewing Counselman as not barring use andderivative use immunity).

The House report accompanying the immunity statute upheld in Kastigarspecifically states that the statute "is designed to reflect theuse-restriction immunity concept of Murphy v. Waterfront Commissionrather [than] the transaction immunity concept of Counselman v.Hitchcock." H.R. Rep. No. 1549, 91st Cong., 2d Sess. 42 (1970),reprinted in 1970 U.S.C.C.A.N. 4007, 4018 (citations omitted); see alsoPillsbury Co. v. Conboy, 459 U.S. 248, 276 (1983) (Blackmun, J.,concurring) (noting that Congress explicitly referred to Murphy and LaBello in formulating the immunity statute). (266.) Pub. L. No. 91-452,84 Stat. 927 (codified at 18 U.S.C. [sections] 6002 (1988 & Supp.1994)). (267.) 18 U.S.C. [sections] 6002 (1988 & Supp. 1994)(emphasis added). As Justice Blackmun pointed out a decade later, thelegislative history demonstrates that "Congress intended toincorporate the `fruit[] [of the poisonous tree]' doctrine into thestatute by use of the phrase `directly or indirectly.'"Pillsbury Co., 459 U.S. at 278 Blackmun, J., concurring); see alsoinfra notes 281, 283. (268.) 406 U.S. 441 (1972). (269.) 406 U.S. at453. (270.) 406 U.S. at 453. (271.) Amar & Lettow, supra note 1, at858 (emphasis added). (272.) Id. at 878 (emphasis added). (273.) Id. Thephrase rational accommodation is a reference to the KastigarCourt's statement that immunity statutes "seek a rationalaccommodation between the imperatives of the privilege and thelegitimate demands of government to compel citizens to testify."406 U.S. at 446. (274.) 406 U.S. at 452-53 (footnote omitted). (275.)Consider People v. Robinson, 210 N.W.2d 372 (Mich. Ct. App. 1973).Relying on various search and seizure cases, the defendant argued thatphysical evidence derived from his coerced confession should be excludedas the fruit of the poisonous tree. Relying on Counselman and Kastigar,the court responded: "[W]hile the defendant's position is welltaken, his reasoning is erroneous. Instead of urging us to establish aFifth Amendment branch of the `fruit of the poisonous tree'doctrine, he should have been arguing that such a branch was alwayspresent as an essential element of the Fifth Amendment guarantee."210 N.W.2d at 376 (footnote omitted). (276.) See infra text accompanyingnotes 281-87. (277.) See infra text accompanying notes 297-304(discussing Silverthorne Lumber Co. v. United States, 251 U.S. 385(1920) and Nardone v. United States, 308 U.S. 338 (1939)). (278.)Dershowitz & Ely, supra note 74, at 1214 (footnote omitted); seealso Stone, supra note 66, at 111 (noting that the Self-IncriminationClause "by its own terms seems to dictate the exclusion of evidenceobtained in violation of its commands" (footnote omitted)); TheSupreme Court, 1967 Term, 82 Harv. L. Rev. 63,222 (1968) (noting that"the fifth amendment exclusionary rule is an essential element ofthe constitutional right, not lust a means of enforcing theright"). (279.) Note, supra note 161, at 178. Thus, "[e]ven ifthe exclusion of evidence derived from a coerced confession is unlikelyto have a deterrent effect on the police, its introduction will stillrepresent an infringement on the individual's privilege againstself-incrimination." Id. (footnote omitted); see also Koontz &Stodel, supra note 238, at 378 n.164 ("It is the preclusion ofincriminating uses that is the essence of the privilege; the exclusionis not just a method to implement some other constitutionalright."); Howard R. Shapiro, Note, Miranda Without Warning.Derivative Evidence as Forbidden Fruit, 41 Brook. L. Rev. 325, 348(1974) ("[A]dmission of evidence derived from compelledself-witness does, in effect, work anew a compelled testimony by theaccused against himself."); Note, Scope of Taint under theExclusionary Rule of the Fifth Amendment Privilege AgainstSelf-Incrimination, 114 U. Pa. L. Rev. 570, 575 (1966) ("Becausethe fifth amendment exclusionary rule is more closely linked to therights of the particular defendant and is a more integral part of theprivilege than is the fourth amendment exclusionary rule, courts shouldnot have the same flexibility in applying it."). (280.) Dixon,supra note 251, at 1424. After noting that what he calls"unintentional immunity" is "frequently conferred"on defendants by excluding "illegally seized evidence and thefruits thereof," id. at 1419, and after calling the immunity rulesuggested in Murphy - barring prosecutorial use of compelled testimonyand its fruits - "an exclusionary rule ... based on the fifthamendment ... parallel to the judicially announced and judiciallypoliced [search and seizure] exclusionary rule," id at 1423-24,Professor Dixon continues: "Thus, under recent fifth amendmentjurisprudence ... the due process `coerced confession' line ofcases, the fourth amendment cases, and the fifth amendment line of casesseem to coalesce in result, even though there may be underlyingdoctrinal differences." Id. at 1424.

As the Kastigar Court noted, the recommendation of the NationalCommission on Reform of Federal Criminal Laws "served as themodel" for the federal immunity statute at issue in Kastigar, andthe Commission's recommendation "was based in large part"on the comprehensive study of immunity by Dixon quoted above. Kastigar,406 U.S. 441, 452 n.36 (1972). (281.) As for the Court, see Kastigar,406 U.S. at 461-62. As for Congress, see the discussion of thelegislative history of [sections] 6002 in Pillsbury Co. v. Conboy, 459U.S. 248, 276-78 (1983) (Blackmun, J., concurring). As Justice Blackmunpoints out:

Section 6002's prohibition against the use of compelledtestimony or "any information directly or indirectly derived fromsuch testimony" reflected Congress' view of the extent of theFifth Amendment privilege. According to the House and Senate Reports,the phrase was chosen to conform to "present law" on the"use of evidence derivatively obtained." The Reports then citeWong Sun v. United States, 371 U.S. 471 (1963), the seminal case on whatis commonly known as the "fruits" doctrine, as representing"present law." 459 U.S. at 276-77; see also infra note 283.(282.) 406 U.S. at 452 n.36; see also supra note 280. (283.) Thisportion of the special report to the President is quoted by the KastigarCourt. See 406 U.S. at 452 n.36. For the full text of this document, see2 Working Papers op the National Commission on Reform of FederalCriminal Laws 1445-47 (1970).

A decade later, Justice Blackmun noted that when it enacted theimmunity statute sustained in Kastigar, "Congress understood"that the Fifth Amendment prohibited the use of a coerced confession orits fruits, and, "as the legislative history demonstrates, Congressintended to incorporate the `fruits' doctrine into the statute byuse of the phrase `directly or indirectly derived.'" PillsburyCo., 459 U.S. at 278 Blackmun, J., concurring); see also supra notes267, 281. (284.) 406 U.S. at 461-62 (footnotes omitted) (emphasisadded). (285.) 406 U.S. at 462. (286.) A decade later, after canvassingthe House and Senate Reports and other evidence of legislative intent,Justice Blackmun concluded: It seems to me that Congress made its intentclear. First, it intended to grant only the minimum protection requiredby the Constitution. Second, it believed that the protectionconstitutionally required in cases of compelled testimony was identicalto the protection required in cases of coerced statements or evidenceotherwise illegally obtained. Pillsbury Co., 459 U.S. at 278 (Blackmun,J., concurring). (287.) 406 U.S. at 461-62. (288.) See supra note 52.(289.) The rule of automatic reversal held sway in the coercedconfessions area "[a]t least since Malinski v. New York [324 U.S.401, 404 (1945)]." Allen, supra note 100, at 45; see also Kamisar,supra note 31, at 7-8.

Moreover, the rule of automatic reversal may have applied to coercedconfessions even before the 1945 Malinski case: "Prior to the1960s, it was generally assumed that constitutional violations couldnever be regarded as harmless error." 3 LaFave & Israel, supranote 43, [sections] 26.6, at 270; see also Charles J. Ogletree, Jr.,Arizona v. Fulminante: The Harm of Applying Harmless Error to CoercedConfessions, 105 Harv. L. Rev. 152, 157 (1991) ("[P]rior to 1967,the Supreme Court routinely reversed convictions upon a finding ofconstitutional error." (footnote omitted)). (290.) See Arizona v.Fulminante, 499 U.S. 279 (1991). For powerful criticism of Fulminante,see Ogletree, supra note 289. (291.) 367 U.S. 568 (1961). (292.) 367U.S. at 615-16. (293.) 367 U.S. at 621. However, at the outset of hislong opinion - perhaps as a warning to the prosecution that a retrialwould be pointless - Justice Frankfurter made the pregnant comment thatat the trial of Culombe and his co-defendant, "no evidence of anyimportance was presented by the State that did not derive, directly orindirectly, from the confessions and disclosures obtained from the twomen." 367 U.S. at 569 n.1. (294.) In the first Ashcraft case,Ashcraft v. Tennessee, 322 U.S. 143 (1944), the defendant'sconviction was reversed because his written confession had been obtainedafter some thirty-six hours of almost continuous interrogation. Thedefendant was later retried and reconvicted. Again the Supreme Courtreversed. See Ashcraft v. Tennessee, 327 U.S. 274 (1946). The secondconviction rested in large part on oral statements the defendant hadmade disclosing that he had deliberately concealed the identity of hiswife's murderer for ten days. The Court saw "no relevantdistinction" between these statements and the written confessionstruck down the first time the case had reached the Supreme Court. See327 U.S. at 278. Thus "[a]ll the reasons given for reversal of thejudgment against Ashcraft in the first case, which we need not repeat,apply with equal force here." 327 U.S. at 279.

Cf. Nix v. Williams (Williams II), 467 U.S. 431 (1984); see alsoinfra text accompanying notes 330-54 (discussing Williams II). InWilliams II, the Supreme Court overturned the defendant's firstmurder conviction because it rested in part on statements obtained inviolation of the Sixth Amendment right to counsel. At the retrial, thebody of the victim was admitted into evidence, but not thedefendant's statements nor the fact that found that he had let thepolice to the body. The state established that a search party would havefound the body in a short time even if the defendant had not disclosedits whereabouts. This time the Supreme Court upheld the conviction onthe ground that the discovery of the body came within the inevitablediscovery exception to the poisonous tree doctrine. 467 U.S. at 448-50.But the Court operated on the premise that the poisonous tree doctrinedid apply to physical evidence derived from statements obtained inviolation of the Sixth Amendment right to counsel.

Consider, too, Harrison v. United States. 392 U.S. 219 (1968),discussed infra in text accompanying notes 318-20. The Court held thatthe defendant's testimony at his first trial - a case that did notreach the Supreme Court - could not be used against him at his retrialbecause it was the fruit of wrongfully obtained confessions improperlyadmitted into evidence at his first trial. 392 U.S. at 225-26.

Ernest Miranda, the defendant in the most famous confession case ofall, was retried and reconvicted without the confession the SupremeCourt had held inadmissible in Miranda. But his second conviction wasnot reviewed by the Supreme Court and, of course, his confession to thepolice had not been coerced. Miranda's second conviction was basedlargely on an oral confession he had made to a woman with whom he wasliving at the time (Mrs. Hoffman), and he contended that this confessionwas the fruit of the confession invalidated by the U.S. Supreme Court.Interestingly, the Supreme Court of Arizona, which affirmedMiranda's second conviction, proceeded on the premise that thepoisonous tree doctrine did apply to the fruits of inadmissibleconfessions. But it concluded that "there was a sufficient `breakin the stream of events' between the confession to the police andthe confession to Mrs. Hoffman" to allow her testimony. State v.Miranda, 450 P.2d 364, 373 (Ariz. 1969).

Interestingly, too, the Arizona Supreme Court's opinionforeshadowed developments in the U.S. Supreme Court:

Certainly the nature of the illegality which gives rise to the"fruits" must be considered in detemining whether the evidenceobtained is "tainted." Here, the violation was a failure towarm of constitutional rights which did not exist until sometimesubsequent to the conduct. Certainly such a "taint" should bemore easily "attenuated" than conduct more clearly proscribedby our Constitution. 450 P.2d at 373 (citation omitted). (295.) AsRichard Kuh, a former prosecuting attorney and a well-known commentatoron criminal procedure, remarked shortly after Miranda was decided: Theprosecutor's duty is to present all the legally admissible evidencethat can be fairly collected and presented and that he believes to benecessary and helpful in sustaining his considerable burden. Prosecutorsmay then be put in an impossible position when they have a confession inan otherwise weak case.... It is all very well to suggest that, despitethe rulings of a trial court sustaining the use of a defendant'sstatements, the prosecutor should play it safe and not use theconfession. However, when, so doing, he finds himself with an acquittalthat might have been avoided had he used the admissions, has he done hisjob? To those who believe that, in many cases, prosecutors probablycould obtain convictions without confessions and are"overtrying" their cases, I would suggest reading trialrecords in cases in which there have been acquittals or "hungjuries." It is a revelation to observe the apparently overwhelmingevidence and yet the seemingly "wrong" result at which thejury will sometimes arrive. It is much easier to fall into the habit ofsaying that certain evidence was not necessary if, as do the appellatecourts, one reads only records of convictions. .... suggest, moreover,that it is human nature ... to want to know if a defendant has"owned up to his crime." After the trial of cases in whichthere were no confessions, I have seen jurors cluster around the judgeor counsel and ask whether the defendant ever admitted his guilt.Richard H. Kuh, Interrogation of Criminal Defendants - Some views onMiranda v. Arizona, 35 Fordham L. Rev. 233, 238, 240 (1966). (296.) Id.at 240. (297.) See Brown v. Mississippi, 297 U.S. 278 (1936). (298.) 308U.S. 338 (1939). (300.) 308 U.S. at 340 (quoting Nardone v. UnitedStates, 302 U.S. 379, 383 (1937)). Nardone also established the"attenuation" doctrine, being the first case to recognize thateven where the challenged derivative evidence did not have anindependent source, it might still be admissible. See 308 U.S. at 341("Sophisticated argument may prove a causal connection betweeninformation obtained through illicit wire-tapping and theGovernment's prool As a matter of good sense, however, suchconnection may have become so attenuated as to dissipate thetaint."). (301.) 251 U.S. 385 (1920). (302.) 308 U.S. at 340-41(quoting Silverthorne, 251 U.S. at 392) (emphasis added). (303.) 308U.S. at 341 (quoting Silverthorne, 251 U.S. at 392) (emphasis added).(304.) Comment, Fruit of the Poisonous Tree - A Plea for RelevantCriteria, 115 U. Pa. L. Rev. 1136, 1138 (1967) (footnote omitted).(305.) 371 U.S. 471 (1963). (306.) Yale Kamisar, Illegal Searches orSeizures and Contemporaneous Incriminating Statements: A Dialogue on aNeglected Area of Criminal Procedure, 1961 U. Ill. L.F. 78, 84. Balbo v.People, 80 N.Y. 484 (1880), was the first and, for many decades, theleading American case on the lack of effect of a wrongful arrest on theadmissibility of a contempofaneous or subsequent incriminatingstatement. See Kamisar, supra, at 106-15. (307.) 371 U.S. at 484. (308.)371 U.S. at 485. (309.) 371 U.S. at 485 (footnote omitted). (311.) 371U.S. at 488. (312.) As the Court pointed out in Oregon v. Elstad, 470U.S. 298 (1985), "It is settled law that `a confession obtainedthrough custodial interrogation after an illegal arrest should beexcluded unless intervening events break the causal connection betweenthe illegal arrest and the confession so that the confession issufficiently an act of free will to purge the primarytaint."'" 470 U.S. at 306 (quoting Taylor v. Alabama, 457U.S. 687, 690 (1982) (quoting Brown v. Illinois, 422 U.S. 590, 602(1975))). (313.) Interestingly, Professor Pitier, author of one of theleading articles on the poisonous tree doctrine, describes Wong Sun bothways. At one point he states that "[t]he Court held that thenarcotics were the `fruit of the poisonous tree' - A's illegalarrest." Pitler, supra note *, at 593. A page later, he describesWong Sun as a case holding that "the narcotics seized from B couldnot be used as evidence against A" because "[t]hey were fruitof the illegally obtained statement of A." Id at 594. (314.) 371U.S. at 486. (316.) 371 U.S. at 486 (citations omitted). (317.) Seesupra text accompanying notes 37-44. (318.) 392 U.S. 219 (1968). (319.)392 U.S. at 220-21. In McNabb v. United States, 318 U.S. 332 (1943), theCourt held, in the exercise of its supervisory authority over theadministration of federal criminal justice, that voluntary confessionsshould be excluded from evidence if they were obtained ivhfle thesuspect was being held in violation of federal requirements that he bepromptly taken before a committing magistrate. Some years later, theCourt revived and reaffirmed McNabb, first in Upshaw v. United States,335 U.S. 410 (1948), and then in Mallory v. United States, 354 U.S. 449(1957). From 1957 on, the rule was often called the McNabb-Mallory ruleor sirnply the Mallory rule. But the storm of controversy over the rulenever subsided. See James E. Hogan & Joseph M. Snee, TheMcNabb-Mallory Rule. Its Rise, Rationale and Rescue, 47 Geo. L.J. 1, 5,17 (1958); see also Fred E. Inbau, The Confession Dilemma in the UnitedStates Supreme Court, 43 Ill. L. Rev. 442 (1948). Many bills wereintroduced to repeal or at least soften the rule, and in 1968, a law wasfinally enacted that severely cut back on it. See Pub. L. No. 90-351, 82Stat. 210 (codified as amended at 18 U.S.C. [sections] 3501 (a), (c)(1988)). Some aspects of the 1968 law are discussed in United States v.Alvarez-Sanchez, 114 S. Ct. 1599 (1994). At no point in his opinion forthe Court in Harrison did Justice Stewart suggest that the Court wasbarring the fruits of the McNabb-Mallory violations in the exercise ofits supervisory power over federal criminal justice. (320.) 392 U.S. at222-23 (footnotes omitted). In a footnote, the Court bolstered thereference to Silverthorne with citations to Nardone and Wong Sun. See392 U.S. at 222-23 n.7. (321.) According to the Model Code ofPre-Arraignment Procedure (Am. Law Inst., Tentative Draft No. 1, 1966):[T]he basic principles underlying Silverthorne and Nardone cannotjustifiably be limited to illegal searches and wiretaps. It is hard tosee why the "fruits" doctrine should apply to the products ofan illegal search and yet be totally inapplicable to the products ofpolice violations, such as confessions obtained by physical abuse, whichmay be fully as abhorrent and in need of deterrence. Id. [sections] 9.09cmt. at 216 (footnote omitted). (322.) In some respects, the McNabbCourt tried to do for the federal courts what, a quarter-century later,Miranda was designed to do for state as well as federal courts: bypassthe frustrating "swearing contests" over the nature of thesecret interrogation and reduce, if not eliminate, both policetemptation and opportunity to coerce incriminating statements. TheMcNabb doctrine sought to do so by focusing on a relatively objectivefactor - the length of time a suspect was held by the police beforebeing brought to a judicial officer to be advised of his rights. (323.)See supra text accompanying notes 196-203. Interestingly, the ElstadCourt apparently viewed Harrison as a coerced confession case, and, assuch is still good law. See Oregon v. Elstad, 470 U.S. 298, 316-17(1985) ("If the prosecution has actually violated thedefendant's Fifth Amendment rights by introducing an inadmissibleconfession at trial, compeuing the defendant to testify in rebuttal, therule announced in Harrison v. United States precludes use of thattestimony on retrial." (citation omitted)). (324.) See supra textaccompanying note 201. In a sense, Justice White, who dissented inHarrison, foreshadowed later developments, such as Elstad He observed:"[P]etitioner's statements were wrongfully admitted, notbecause they were involuntary or in any way coerced, but because theyviolated Mallory...." 392 U.S. at 229. He continued: Even if itwere true that the rule adopted by the Court served some minimaldeterrent function, I would not be able to join the Court. Marginalconsiderations such as these, especially when one is dealing withconfessions excludable because of violation of the technicalrequirements of cases like Mahory ... and Miranda[] are insufficient tooverride the interest in presenting an evidence which is relevant andprobative. 392 U.S. at 232-33 (citations omitted). (325.) But seeStanley Hirtle, Inadmissible Confessions and Their Fruits: A Comment onHarrison v. United States, 60 J. Crim. L. & Criminology 58, 63(1969) (arguing that the prosecutors in Harrison were intentionallyexploiting an illegality by using "the testimony caused by theconfessions ... as a substitute for" the confessions, and that suchbehavior might influence future police conduct). (326.) 392 U.S. at 232.(327.) As Justice Frartkfurter noted in Nardone, at some point theconnection between the original contaminated source and the informationderived from it "may have become so attenuated as to dissipate thetaint." 308 U.S. at 341; see also Wong Sun v. United States, 371U.S. 471, 487-88 (1963). (328.) Wolfin, supra note *, at 845 (footnoteomitted). (329.) Amar & Lettow, supra note 1, at 922 n.286 (citingFriendly, supra note 10, at 712 n.176 (citing B. James George, Jr., AnUnsettled Question, in A New Look at Confessions 115, 121 (B. JamesGeorge, Jr., ed., 1967))). Professor George states: Police can questionsuspects either (1) to obtain statements that they can later present incourt as evidence, or (2) to obtain leads from a suspect on the basis ofwhich they can discover real or demonstrative evidence, or identifyprosecution witnesses .... What data there are suggest that the latterobjective is usually more important to law enforcement than the former.George, supra at 121. (330.) 467 U.S. 431 (1984). (331.) 467 U.S. at436. (332.) 430 U.S. 387 (1977). For a detailed study of theoften-confusing record in Williams I and extensive discussion of theissues raised by this case, see Yale Kamisar, Foreword: Brewer v.Williams - A Hard Look at a Discomfiting Record, 66 Geo. L.J. 209(1977), reprinted in Kamisar, supra note 7, at 113, and Brewer v.Williams, Massiah, and Miranda: What Is "Interrogation"? WhenDoes It Matter?, 67 Geo. L.J. 1 (1978), reprinted in Kamisar, supra note7, at 139. (333.) 430 U.S. at 406. Massiah v. United States, 377 U.S.201 (1964), as clarified and arguably expanded in Williams I,establishes that once adversary proceedings have commenced against anindividual - for example, once he has been indicted or arraigned -government efforts to "deliberately elicit" incriminatingstatements from him, whether done openly by uniformed police officers orsurreptitiously by secret agents, violate the individual's right tocounsel. 430 U.S. at 398-401. (334.) 430 U.S. at 407 n.12. (335.) 467U.S. at 437-39. For an excellent "roadmap" to both Williamscases, see Phillip E. Johnson, The Return of the "Christian BurialSpeech" Case, 32 Emory L.J. 349 (1983). (336.) See 467 U.S. at 448.Although Williams II marked the first time the Court recognized theinevitable discovery exception, as the Court noted, the vast majority oflower courts had already done so. See 467 U.S. at 440. (337.) 467 U.S.at 441-44. (338.) See 467 U.S. at 443-44. A number of commentators wouldsharply disagree with this rather benign characterization of theinevitable discovery exception. For strong criticism of this exception,especially if it is applied loosely, see Pitler, supra note *, at627-30; Jeffrey M. Bain & Michael K. Kelly, Comment, Fruit of thePoisonous Tree. Recent Developments as Viewed Through Its Exceptions, 31U. Miami L. Rev. 615, 625-29 (1977); and The Supreme Court, 1983 Term -Leading Cases, 98 Harv. L Rev. 87, 124-30 (1984). (339.) Cf Amar &Lettow, supra note 1, at 888-89, 900. (340.) 467 U.S. at 437. (341.)Amar & Lettow, supra note 1, at 880. Elsewhere, Amar asks: [S]houldnot the law strongly presume that somehow, some way, sometime, the truthwould come out? Criminals get careless or cocky; conspirators rat;neighbors come forward; cops get lucky; the truth outs; and justicereigns - or so our courts should presume, and any party seeking tosuppress truth and thwart justice should bear a heavy burden of proof.Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev.757, 794 (1994) (footnote omitted). (338.) See 467 U.S. at 443-44. Anumber of commentators would sharply disagree with this rather benigncharacterization of the inevitable discovery exception. For strongcriticism of this exception, especially if it is applied loosely, seePitler, supra note *, at 627-30; Jeffrey M. Bain & Michael K. Kelly,Comment, Fruit of the Poisonous Tree. Recent Developments as ViewedThrough Its Exceptions, 31 U. Miami L. Rev. 615, 625-29 (1977); and TheSupreme Court, 1983 Term - Leading Cases, 98 Harv. L Rev. 87, 124-30(1984). (339.) Cf Amar & Lettow, supra note 1, at 888-89, 900.(340.) 467 U.S. at 437. (341.) Amar & Lettow, supra note 1, at 880.Elsewhere, Amar asks: [S]hould not the law strongly presume thatsomehow, some way, sometime, the truth would come out? Criminals getcareless or cocky; conspirators rat; neighbors come forward; cops getlucky; the truth outs; and justice reigns - or so our courts shouldpresume, and any party seeking to suppress truth and thwart justiceshould bear a heavy burden of proof. Akhil Reed Amar, Fourth AmendmentFirst Principles, 107 Harv. L. Rev. 757, 794 (1994) (footnote omitted).(342.) 467 U.S. at 441-42 (citing Murphy v. Waterfront Commn., 378 U.S.52 (1964), and Kastigar v. United States, 406 U.S. 441 (1972)) (emphasisadded) (footnote and citations omitted). (343.) See 467 U.S. at 442 n.3.(344.) 406 U.S. at 460 (footnote omitted). (345.) 406 U.S. at 460(quoting Murphy, 378 U.S. at 79 n.18). (346.) 406 U.S. at 461 (footnoteomitted). (347.) Brief of Petitioner at 21, Nix v. Williams, 467 U.S.431 (1984) (No. 82-1651). (348.) Id. (emphasis added). (349.) Nix v.Williams, 467 U.S. 431, 443 (1984). (350.) 406 U.S. at 443. (351.) Seesupra note 333. (352.) See supra text accompanying note 342. (353.) Cf.Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (holding that undercertain circumstances, especially if the initial illegality is"purpose[ful] and flagran[t]," not even Miranda warnings maybreak the causal connection between an unlawful arrest and a resultingconfession). (354.) Justice O'Connor's view that a Mirandaviolation should not beget the same "fruits" consequences asan infringement of the Fifth Amendment itself, see supra textaccompanying note 201, brings to mind the comments of the Model CodeReporters when they first "attempt[ed] to formulate standards withrespect to exclusion of the fruits of the poisonous tree' as itrelates to extrinsic evidence derived from inadmissiblestatements": [E]specially in the context of a code containing manyrigid rules of varying importance, some by no means of constitutionaldimension, it is relevant to the question whether the "fruits"of a statement should be excluded to inquire whether the underlyingviolation which rendered the statement inadmissible involved a graveinfringement of the defendant's rights. The more outrageous theviolation, the stronger deterrent we need, and consequently the widerthe sweep of the "fruits" doctrine should be. If, on the otherhand, the rule violated stands low in our hierarchy of values, theargument that [the] violation must be deterred at all costs isconsiderably less compelling. Model Code of Pre-Arraignment Procedures[sections] 9.09 cmt. at 75-76 (Am. Law Inst., Tentative Draft No. 1,1966) (emphasis added). (355.) Cf. Amar, supra note 341, at 758(discussing the adverse effects of placing the Fourth Amendment in acriminal procedure course rather than teaching it as part ofconstitutional law). (356.) 365 U.S. 534 (1961). (357.) 378 U.S. 368(1964). (358.) 479 U.S. 157 (1986). (359.) 406 U.S. 441 (1972). (360.)Amar & Lettow, supra note 1, at 877. (361.) The Amar-Lettow articlerefers to the independent source and inevitable discovery doctrines,Amar & Lettow, supra note 1, at 880, 908 n.227, 918-19, 928, butnever discusses how these doctrines came to be, or whether they ought tobe, exceptions to the more general poisonous tree doctrine. (362.)Silverthorne Lumber Co. v. United States, 251 U.S. 471 (1963); see supranotes 301-03 and accompanying text. (363.) Nardone v. United States, 308U.S. 338 (1939); see supra section IV.C. Amar and Lettow do refer toanother leading poisonous tree case, Wong Sun v. United States, 371 U.S.471 (1963), one time (a "But cf." citation in a footnote, Amar& Lettow, supra note 1, at 917 n.265), but fail to point out thatWong Sun applied the doctrine to exclude two types of"fruits": (a) statements the defendant made immediately afterbeing illegally arrested and (b) physical evidence derived from thoseinadmissible statements. See supra notes 308-13 and accompanying text.(364.) 384 U.S. 757 (1966). (365.) 384 U.S. at 765; see also supra textaccompanying note 123. (366.) 384 U.S. at 767. The Court upheld theadmissibility of the chemical analysis only after concluding thatdefendant had not been arrested illegally and that it was impracticalfor the police to seek a warrant before obtaining a sample of his blood.There is little doubt that if defendant's Fourth Amendment rightshad been violated, the chemical analysis would have been excluded"as the product of an unconstitutional search and seizure."(367.) See United States v. Wade, 388 U.S. 218 (1967). (368.) See 388U.S. at 240 (citing Murphy v. Waterfront Commn., 378 U.S. 52 (1964)).(369.) See Nix v. Williams (Williams II), 467 U.S. 431 (1984); see alsosupra text accompanying notes 330-48. (370.) See supra text accompanyingnote 342. (371.) 417 U.S. 433 (1974). (372.) 470 U.S. 298 (1985). (373.)New Jersey v. Portash, 440 U.S. 450, 459 (1979); see also supra textaccompanying note 208. Moreover, for reasons I have discussed at length,I believe Justice O'Connor's concurring opinion in Quarles isalso an argument for a special rule admitting the physical fruits ofMiranda violations. See supra text accompanying notes 180-89. (374.) 417U.S. at 446; see also supra note 66. For other language in the Tuckeropinion to the same effect, see supra note 201. (375.) 417 U.S. at 445.(376.) 470 U.S. at 308. (377.) 470 U.S. at 307. (378.) 470 U.S. at 309.(379.) Amar & Lettow, supra note 1, at 880; see also id. at 858.(380.) 410 U.S. 113 (1973). (381.) Amar & Lettow, supra note 1, at928. (382.) Id. at 880. (383.) Id. at 927. (384.) Id. (**) WhenProfessor Kamisar accepted the Law Review's invitation to respondto the Amar-Lettow article, he understood that he would not be able toreply to Amar and Lettow's rejoinder to his response.