Printer Friendly

Judicial review and the limits of prosecutorial discretion.


The Executive Branch, as the branch of government charged by the Constitution with enforcing the law,(1) must be allowed considerable latitude in devising and executing its own enforcement strategies. Respect by the other two branches of government for the Executive's right to determine how best to enforce the law has come to be seen as a constitutionally compelled aspect of the separation of powers. However, despite the fact that the Congress and the Judiciary ordinarily must defer to the Executive's "prosecutorial discretion," this Note argues that under certain, limited circumstances, namely when Congress enacts a binding legal standard, the doctrine of separation of powers, rather than requiring unquestioning judicial deference to the Executive's prosecutorial decision-making, instead affirmatively permits the courts to assert their own constitutionally granted right to "say what the law is."(2) As a result, courts may, without violating the separation of powers, consider sua sponte legal arguments not specifically advanced by the prosecution even if presenting such arguments purposefully had been eschewed by the prosecution.

This issue -- whether there are limits to the Executive's traditional unfettered prosecutorial discretion to advance or limit its legal arguments in support of a criminal prosecution -- recently came to the forefront during the much publicized challenge to the continued validity of Miranda v. Arizona.(3) In Dickerson v. United States,(4) as well as in other antecedent cases presenting the same issue, the courts confronted whether it was appropriate to raise sua sponte a motion under 18 U.S.C. [sections] 3501, a statutory basis for admitting evidence that otherwise would be excluded by an application of Miranda, despite the fact that the prosecution had failed to raise the statute as a reason for the evidence's admission. In Dickerson, the Fourth Circuit, finding that the Justice Department had engaged in "elevating politics over law" and had "prohibited the U.S. Attorney's Office from arguing that Dickerson's confession is admissible under the mandate of [sections] 3501,"(5) raised the issue sua sponte and used section 3501 as the basis for admitting the evidence in question. Although scrutiny of the Fourth Circuit's decision to raise section 3501 was not included in the Supreme Court's grant of certiorari in the Dickerson case, it nonetheless has been the target of considerable criticism for being a violation of the Executive Branch's prosecutorial discretion and thus of the doctrine of separation of powers. For instance, in its petition for writ of certiorari, the Justice Department recorded its objection to the Fourth Circuit's sua sponte consideration of section 3501, noting that the "court of appeals' action is subject to question on prudential grounds."(6) The Justice Department suggested that while "appellate courts have a measure of discretion to identify the issues presented for resolution, that discretion does not usually include adjudicating the constitutionality of a statute that the government has declined to invoke on appeal."(7)

This criticism is misplaced. Rather than reflecting a violation of the separation of powers, the Fourth Circuit's decision to apply section 3501 on its own motion is not only consistent with separation of powers principles but actually represents an exercise of an important prerogative granted to the Judiciary by Article III of the Constitution: determining what is controlling law. This Note explores these issues, assessing whether, and in what circumstances, the Court should raise unilaterally a potentially dispositive statutory issue in the course of a criminal prosecution when the Executive Branch has consciously decided not to do so. It argues that when Congress enacts a binding legal standard, the courts, acting under their own Article III powers, do not violate the separation of powers by considering the legislative standard, even if it is not advanced by the prosecution. Applying this argument to the problem at issue in Dickerson, this Note suggests that the Fourth Circuit did not transgress the separation of powers by sua sponte considering section 3501 despite the fact that the Justice Department had decided not to present that statute as a basis for admitting the evidence in question.(8)

Part II sets the stage for the Dickerson controversy by outlining the history of Miranda jurisprudence and discussing the enactment of and the Executive Branch's approach to section 3501 from its passage in 1968 through the Clinton Administration. Part III addresses the courts' judicial review of the Justice Department's failure to raise the statute. Part IV provides a theoretical assessment of how separation of powers issues relate to the federal judiciary generally. Finally, Part V argues that although separation of powers concerns preclude the Judiciary from interfering with prosecutorial discretion normally, if Congress enacts a binding legal standard, the courts do not transgress the separation of powers when they invoke such legislation sua sponte despite the Executive's affirmative decision not to do so.


A. Judicial Innovations

In Escobedo v. Illinois,(9) the Court ruled that the refusal by the police to allow a suspect assistance of counsel violated his rights under the Sixth Amendment.(10) Two years later, in Miranda v. Arizona,(11) the Court reaffirmed Escobedo,(12) and in doing so, extended its scope by holding that the Fifth Amendment privilege against being compelled to be a witness against oneself attaches during custodial interrogation.(13) After concluding that custodial interrogations are inherently coercive,(14) Chief Justice Warren noted, "there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves."(15)

In order for statements made during custodial interrogations to be admissible at trial, Miranda mandated that the police first provide the accused with warnings informing him of his rights and that those rights be voluntarily, knowingly, and intelligently waived. Consequently, the Court held, "[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed."(16) Thus, "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination."(17)

Although the Court imposed specific procedural safeguards, it was explicit in stating that these are not the only possible safeguards that could protect the suspect's rights under the Fifth Amendment. Thus, the Court observed that "[i]t is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities."(18) By doing so, the Court left open the possibility for Congress or the States to devise their own procedural safeguards. Consequently, the Court noted that its decision "in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect."(19) Moreover, the Court observed, "we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted."(20)

To this end, the Court invited the state and federal legislatures to devise alternative mechanisms by which to protect the Fifth Amendment rights of the accused during custodial interrogations. "We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individuals while promoting efficient enforcement of our criminal laws."(21) Later in the opinion, the Court reiterated that "Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it."(22)

B. The Congressional Response to Miranda

Miranda immediately was subjected to intense criticism.(23) In response to Miranda, on June 19, 1968, Congress enacted 18 U.S.C. [sections] 3501. Rather than barring the admission of all statements made during custodial interrogations without counsel, and where the right to counsel had not been waived, section 3501 refocused the inquiry on whether the statement itself was voluntary, a determination to be made by the trial judge.(24) Moreover, section 3501 specified factors that should be considered by the trial judge when determining if the confession was voluntary. Such factors included:
 The time elapsing between arrest and arraignment of the defendant making
 the confession, if it was made after arrest and before arraignment;

 Whether the defendant knew the nature of the offense with which he was
 charged or of which he was suspected at the time of making the confession;

 Whether the defendant was advised or knew that he was not required to make
 any statement and that any such statement could be used against him;

 Whether the defendant had been advised prior to questioning of his right to
 assistance of counsel; and

 Whether the defendant was without assistance of counsel when questioned and
 when giving the confession.(25)

Section 3501 also made clear that the "presence or absence of any of the above-mentioned factors to be taken into consideration by the judge need not be conclusive on the issue of voluntariness of the confession."(26) Consequently, although under section 3501, consideration of whether the police informed the suspect of his Miranda rights was relevant for establishing that the confession was voluntary, unlike the system constructed by Miranda, the failure by the police to inform the suspect of these fights would not be necessarily dispositive. Thus, confessions obtained in the absence of Miranda-specified warnings would be admissible if the trial court were to find that, under the circumstances, the confession was nevertheless voluntary.(27)

Section 3501 was enacted against the backdrop of a widespread understanding, stemming from the Supreme Court's opinion itself, that Miranda, although grounded in the duty to protect Fifth Amendment rights, is not itself a constitutional decision. The credibility of this view was bolstered by the Supreme Court's subsequent interpretation of Miranda. As the Court observed in Michigan v. Tucker,(28) Miranda warnings are "not themselves rights protected by the Constitution,"(29) but are merely "prophylactic standards" designed to guard against self-incrimination.(30) Likewise, in Oregon v. Elstad,(31) the Court reiterated the proposition that Miranda is not itself a constitutional decision, observing that the Miranda exclusionary rule "serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself," such that it "may be triggered even in the absence of a Fifth Amendment violation." As a consequence, "Miranda's preventative medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm."(32)

C. The Department of Justice's Approach to Section 3501

Despite the fact that section 3501, assuming its constitutionality, would provide the Justice Department with a powerful procedural tool by which to introduce evidence that otherwise would be suppressed under Miranda, successive administrations proved reluctant to invoke the statute. Although President Lyndon Johnson signed section 3501 into law, he nonetheless instructed the Justice Department to continue to inform suspects of their Miranda rights.(33) During the Nixon and Ford Administrations, the Department of Justice took a more receptive approach to section 3501, and in 1975, the Tenth Circuit held that the trial court was not in error by applying section 3501 rather than Miranda in determining whether a confession was admissible.(34)

Former Attorney General Dick Thornburgh related to Congress that the Reagan Justice Department never prohibited U.S. Attorneys from invoking section 3501 to seek admission of Miranda-bad evidence.(35) Likewise, Edwin Meese stated that during his tenure as Attorney General, the Justice Department concluded that section 3501 "was constitutional, and that admission of voluntary confessions pursuant to its provisions was accordingly a legitimate objective for the Department to seek."(36) Indeed, Meese tasked Associate Deputy Attorney General Paul Cassell with locating an appropriate case to test the constitutionality of section 3501.(37) In fact, admission of evidence was sought on section 3501 grounds in the Eighth Circuit, although the court did not reach the section 3501 argument.(38) Moreover, at the request of Meese, in February 1986, the Office of Legal Policy issued the "Report to the Attorney General on the Law of Pre-Trial Interrogation," which concluded that section 3501, not Miranda, was controlling law.(39)

The Bush Justice Department also took the position that section 3501 was constitutional. According to former Attorney General William P. Barr, "the United States Attorneys Offices were authorized and encouraged to raise 18 U.S.C. [sections] 3501 as an argument for the admission of reliable evidence of guilt that would otherwise be kept from juries by the Miranda doctrine."(40) Moreover, Barr instructed a Special Assistant to the Attorney General to locate a test case for section 3501, and the U.S. Attorneys' Offices were contacted to find an appropriate case in which to adjudicate its constitutionality.(41)

D. Section 3501 Under the Clinton Administration

The Clinton Administration took the opposite approach and never invoked section 3501 to introduce evidence that otherwise would be excluded under Miranda. Significantly, however, the public stance taken by the Clinton Justice Department evolved from asserting that it would defend the constitutionality of section 3501 under appropriate circumstances to its later position that section 3501 was an impermissible attempt by Congress to overrule a constitutional decision by the Supreme Court.(42)

During his confirmation hearings, Deputy Attorney General Eric Holder testified in response to questioning from Senator John Ashcroft that during his tenure as U.S. Attorney for the District of Columbia, he never sought to use section 3501 as the basis for admitting evidence that otherwise would have been excluded as a violation of Miranda.(43) The reason, according to Holder, was that "Assistant U.S. Attorneys generally have been successful with respect to the admission of voluntary confessions in federal cases under Miranda and its progeny." Consequently, Holder suggested, "few if any voluntary confessions were deemed inadmissible in federal cases" during his tenure as U.S. Attorney.(44) However, Holder affirmed that, if confirmed, he would "take full advantage of the law enforcement tools provided by Congress, including 18 U.S.C. 3501 (a) and (b) in appropriate circumstances."(45)

Despite this assurance, the Justice Department changed its position regarding the constitutionality of section 3501. On September 10, 1997, Attorney General Janet Reno informed the Senate that the Department of Justice had determined that "the federal courts of appeals and district courts may not apply 18 U.S.C. [sections] 3501 to admit a voluntary confession in a case in which Miranda v. Arizona ... would require its exclusion, and that the Department of Justice cannot argue that they do so."(46) According to Reno, the lower federal courts could not apply section 3501 "unless and until the Supreme Court overrules or modifies" Miranda.(47)


Faced with the Justice Department's refusal to invoke section 3501, segments of the Judiciary became increasingly frustrated with the Justice Department and began to threaten and to actively consider the issue sua sponte. In Davis v. United States,(48) the Supreme Court considered a case in which section 3501 potentially would be dispositive. Although amici urged the Court to decide the case on section 3501 grounds, the Court declined the invitation.(49) In a concurring opinion, Justice Scalia took the Justice Department to task for its failure to invoke section 3501, suggesting that "[l]egal analysis of the admissibility of a confession without reference to [section 3501] is equivalent to legal analysis of the admissibility of hearsay without consulting the Rules of Evidence; it is an unreal exercise."(50)

Assessing whether circumstances sometimes may permit the Court to consider arguments not advanced by the litigants, Justice Scalia observed that although "the refusal to consider arguments not raised is a sound prudential practice," he refused to elevate the practice to that of a constitutional prohibition, arguing that "there are times when prudence dictates the contrary."(51) According to Justice Scalia:
 The Executive has the power (whether or not it has the right) effectively
 to nullify some provisions of the law by the failure to prosecute--the
 exercise of so-called prosecutorial discretion. And it has the power
 (whether or not it has the right) to avoid application of [sections] 3501
 by simply declining to introduce into evidence confessions admissible under
 its terms. But once a prosecution has been commenced and a confession
 introduced, the Executive assuredly has neither the power nor the right to
 determine what objections to admissibility of the confession are valid in

Shortly after Justice Scalia's admonishment to the Justice Department in Davis, the Justice Department again was presented with a prosecution where the invocation of section 3501 would have been appropriate. The case, United States v. Leong,(53) gave the Justice Department the opportunity to use section 3501 to admit evidence that otherwise would be suppressed under Miranda. In Leong, the defendant was stopped by the police for speeding.(54) Upon discovering a handgun, the officer proceeded to question the occupants of the car without reading them their Miranda rights.(55) Thereupon, Leong confessed ownership of the handgun and was arrested. After being indicted, however, Leong successfully suppressed his statement admitting ownership of the firearm on the ground that because he was in custody at the time, questioning by the officer violated Miranda.

Thus, section 3501 seemed to be particularly apposite to Leong; although the defendant made what appeared to be a voluntary confession, the officer had not given him Miranda warnings. However, despite the fact that under section 3501 Leong's confession likely would be admitted, the Justice Department refused to permit the Assistant U.S. Attorney responsible for prosecuting the case to use section 3501 as a means of admitting Leong's confession. On appeal, the Fourth Circuit only could apply a traditional Miranda inquiry, the only question being whether the defendant was in custody at the time he made his confession. Consequently, the court found that under Berkemer v. McCarty,(56) "Leong was in custody; because he was not given the proper Miranda warnings, his statement admitting ownership of the firearm was properly suppressed by the district court."(57)

After affirming the district court's suppression order, the Fourth Circuit took the unusual step of ordering the Justice Department to file a brief assessing the effect of section 3501 on the admissibility of Leong's statements. In response, however, instead of asserting that section 3501 permitted the admission of Leong's confession, the Justice Department filed a brief taking the position that section 3501 could not be used to support the admission of Miranda-bad confessions "unless and until the Supreme Court overrules or modifies" Miranda.(58) According to Assistant Attorney General Andrew Fois, the Justice Department concluded "in light of the Supreme Court's controlling decision in Miranda v. Arizona ... and the Court's subsequent decisions applying that precedent, that the lower federal courts are not at liberty to apply section 3501 in any way that would contravene the rules set forth by the Supreme Court in Miranda."(59) The Justice Department, however, observed that unlike the lower federal courts which are bound by Supreme Court precedent, the Supreme Court remains "free to reconsider its prior decisions." Consequently, the Justice Department left open the possibility of addressing the constitutionality of section 3501 before the Supreme Court.(60) Shortly thereafter, Attorney General Reno, acting in conformity with the statutorily mandated requirement that Congress be informed when the administration decides not to defend the constitutionality of a statute, related to Congress that the Justice Department would not defend section 3501 in the lower federal courts.(61)

Soon after Leong, the Justice Department again was confronted with a voluntary confession made in the absence of Miranda warnings. In Dickerson, the district court suppressed the defendant's confession on the ground that it had been given before he had been read his Miranda rights.(62) The district court, however, in deciding whether evidence obtained pursuant to the confession also should be suppressed, held that the confession itself was voluntary under the Fifth Amendment.(63) Nonetheless, the district court suppressed evidence obtained by the police while searching Dickerson's apartment, holding that their warrant failed to describe the items for which they were to search with adequate specificity. On appeal to the Fourth Circuit, the court of appeals, sua sponte, considered the effect of section 3501, and ruled that since the confession was given voluntarily, the district court was in error when it suppressed the statements.

In dissent, Judge Michael vehemently disputed the propriety of the majority's willingness to consider section 3501 despite the fact that the Executive Branch affirmatively had decided not to invoke its protection. According to Judge Michael, "[i]n pressing [sections] 3501 into the prosecution of a case against the express wishes of the Department of Justice, the majority takes on more than any court should."(64) The reason falls squarely in separation of powers concerns; the Judiciary, according to Judge Michael, should not intrude upon the Executive's exclusive prerogative to pursue prosecutions. Thus, to Judge Michael, "a decision not to invoke [sections] 3501 in response to a motion to suppress a confession is a matter of prosecutorial strategy;" such decisions "[w]e should leave ... to the executive."(65) Regarding the majority's concern that unless the Judiciary is willing to consider applicable legislation unilaterally in the face of executive neglect, Judge Michael argued that Congress is the appropriate vehicle for overseeing executive failure to adequately enforce the law, and that "Congress--consistent with separation of powers principles--uses the public hearings process to examine the policies and conduct of the executive. That process has been used on occasion to question the executive's exercise of prosecutorial discretion and the formulation of litigation strategy."(66)

Framing the issue in this way, Judge Michael's Dickerson dissent placed the majority's action in the context of an important, yet often neglected, constitutional quagmire: judicial-executive disputes.


At the federal level, the American constitutional system rests on an intricately balanced system of separation of powers. Indeed, after more than two centuries, the precise dynamics of the Framers' carefully crafted relationship among the three branches of the federal government remains intensely disputed,(67) and in recent years the Supreme Court has rediscovered an interest in clarifying separation of powers issues.(68) Much of the Court's recent separation of powers jurisprudence, however, has focused on resolving disputes between the Executive and Legislative branches of government. In Morrison v. Olson,(69) for instance, the Court upheld the constitutionality of the Ethics in Government Act, thereby allowing the appointment of independent counsels to investigate alleged Executive Branch malfeasance. In other landmark separation of powers cases, the Court has invalidated attempts to control federal spending(70) and declared the legislative veto unconstitutional.(71)

One important area of separation of powers jurisprudence that has received scant attention, however, concerns the relative powers and limitations of the federal courts vis-a-vis the Executive Branch. Although the Court has sought to define the precise relationship between the government's political branches, important separation of powers issues concerning the power and limitations of the federal Judiciary remain extant, despite the fact that, from the beginning of the republic, restraining legislative and executive aggrandizement at the expense of the Judiciary has been a central focus of our constitutional design. As James Madison admonished, preserving the independence of the Judiciary is central to the protection of liberty: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were if joined to the executive power, the judge might behave with all the violence of an oppressor."(72)

It is important to recognize that separation of powers issues involving the courts are unique in that the courts do not have an institutional mechanism by which they may assert themselves in the political process, so that they lack a potent means of self-protection available to the other branches of government. Thus, unlike legislative-executive disputes, where the combatants can avail themselves of the political process, the Judiciary, as -- to use Alexander Hamilton's phrase -- the federal government's "least dangerous" branch, lacks the capacity to resort to the political arena.(73) Consequently, while the checks and balances provided by the dynamics of the political process help to ensure that neither the Congress nor the Executive gains the upper hand in their interrelations, such cannot be the case with the Judiciary. As Hamilton observed:
 The Executive not only dispenses the honors, but holds the sword of the
 community. The legislature not only commands the purse, but prescribes the
 rules by which the duties and rights of every citizen are to be regulated.
 The judiciary, on the contrary, has not influence over either the sword or
 the purse; no direction either of the strength or of the wealth of the
 society, and can take no active resolution whatever. It may be truly be
 said to have neither force nor will, but merely judgment; and must
 ultimately depend upon the aid of the executive arm ever for the efficacy
 of its judgments.(74)

Traditionally, separation of powers has been understood to impose on the courts deference to prosecutorial decisions. What has remained unclear, however, is whether and under what circumstances the courts' own powers and responsibilities granted by Article III permit them to dispense with prosecutorial discretion. Indeed, ascertaining the proper judicial stance toward prosecutorial discretion has deeply divided the Judiciary itself. Consider the imbroglio that resulted when the Ninth Circuit decided to make plain its views on whether the Justice Department acted appropriately in selecting whom to prosecute under the Child Support Recovery Act.(75) In United States v. Mussari,(76) the Ninth Circuit took it upon itself to provide the Department of Justice, in dicta, with what it described as "a guide to enforcement of the statute." In doing so, it harshly criticized the Executive's choice of whom to prosecute, declaring:
 [I]n choosing among the thousands of persons delinquent in honoring their
 child support obligations, the government need not show itself an unfeeling
 monster, or make the law hideous, by selecting as its target an ineffectual
 worker, plagued by accidents and bad luck, without assets to make any
 restitution, without children to whom he has any legal connection, and with
 a present wife and family to whom he has important ties.(77)

This gratuitous lecture prompted a harsh rejoinder from Judge Kozinski, who in dissent criticized his colleagues for engaging in what he deemed an unconstitutional interference in what should be the Department of Justice's unfettered discretion to determine whom to prosecute; accordingly, Judge Kozinski condemned the majority for having "once again mounted the bully pulpit in order to lecture another branch of government about how to do its job."(78) Furthermore, Judge Kozinski declared that by attempting to influence the Executive's choice of whom to prosecute, the court transgressed the constraints imposed on the Judiciary by separation of powers:
 This highly inappropriate and factually unfounded sermon has no legitimate
 place in an opinion of this court. Second-guessing the exercise of
 prosecutorial discretion reflects a fundamental disregard for the principle
 of separation of powers. An opinion of this court is not a platform from
 which individual judges should express their personal views about the
 wisdom of federal legislation and enforcement efforts.(79)

But this dispute over whether the courts' adjudicatory function includes the fight to attempt to influence the Executive's prosecutorial strategy is not confined to the propriety of uninvited judicial dicta directed toward the Department of Justice's decision-making calculus, as was the case in Mussari.(80) It is in this context that the Fourth Circuit's decision in Dickerson to raise section 3501 sua sponte should be seen. Although Congress enacted the legislation explicitly intending to displace the specific procedural requirements imposed by the Court in Miranda, the Clinton Justice Department's consistent refusal to invoke the legislation to support the admissibility of confessions that otherwise would run afoul of Miranda, forced the courts to confront whether, on their own, they could use section 3501 to admit such evidence. By doing so, did the Fourth Circuit in Dickerson violate the separation of powers?

Although the Supreme Court chose not to address the issue in its Dickerson opinion, the Fourth Circuit's unilateral consideration of section 3501 raises important separation of powers concerns that merit attention.(81) Absent allegations of constitutional violations, courts traditionally do not subject the Executive's prosecutorial discretion to judicial review. Thus, the stance taken by the Fourth Circuit represents a marked departure from the conventional pattern of executive-judicial relations and pits two competing separation of powers interests against each other: the Executive's right to prosecute unfettered by strictures that the Judicial Branch would place upon it versus the Judiciary's constitutionally imposed responsibility to decide cases and controversies according to the law.


A. Ordinary Deference

At first blush, it would appear that those who criticize the Fourth Circuit's action as a violation of separation of powers are on steady ground because ordinarily separation of powers principles prohibit the courts from interfering with the Executive's discretion in prosecuting cases. For instance, it is firmly established that the Executive Branch enjoys "broad discretion" as to who to prosecute,(82) and that this "broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review."(83) As the Supreme Court noted in Town of Newton v. Rumery,(84) "Our decisions ... uniformly have recognized that courts normally must defer to prosecutorial decisions as to whom to prosecute."(85) Thus, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion."(86) As Judge Posner has suggested, a "judge in our system does not have the authority to tell prosecutors which crimes to prosecute or when to prosecute them."(87)

Consequently, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion."(88) Thus, "courts normally must defer to prosecutorial decisions as to whom to prosecute."(89) As the Supreme Court explained in Wayte v. United States:
 Such factors as the strength of the case, the prosecution's general
 deterrence value, the Government's overall enforcement plan are not readily
 susceptible to the kind of analysis the courts are competent to undertake.
 Judicial supervision in this area, moreover, entails systemic costs of
 particular concern. Examining the basis of a prosecution delays the
 criminal proceeding, threatens to chill law enforcement by subjecting the
 prosecutor's motives and decisionmaking to outside inquiry, and may
 undermine the prosecutorial effectiveness by revealing the Government's
 enforcement policy. All these are substantial concerns that make the courts
 properly hesitant to examine the decision whether to prosecute.(90)

Moreover, judicial deference to prosecutorial decision-making is not merely a prudential doctrine; rather, it also stems directly from separation of powers concerns. The Supreme Court in United States v. Armstrong(91) explicitly tied the judicial respect for prosecutorial discretion to principles of separation of powers, observing that the Attorney General and the U.S. Attorneys are granted "latitude" to enforce the criminal laws "because they are designated by statute as the President's delegates to help him discharge his constitutional responsibility to `take Care that the Laws be faithfully executed."(92) As the D.C. Circuit observed in Newman v. United States,(93) because "public prosecutions are within the exclusive direction of the United States Attorney," such issues must be resolved on the basis of the constitutional powers of the Executive.(94) Likewise, the Fifth Circuit explicitly found that the courts' deference to the Executive's prosecutorial discretion is a function of separation of powers. Starting from the proposition that "executive power is vested in the President of the United States, who is required to take care that the laws be faithfully executed," and that the "Attorney General is the hand of the President in taking care that the laws of the United States in legal proceedings and in the prosecution of offenses, be faithfully executed," the court concluded that:
 The discretionary power of the attorney for the United States in
 determining whether a prosecution shall be commenced or maintained may well
 depend upon matters of policy wholly apart from any question of probable
 cause. Although as a member of the bar, the attorney for the United States
 is an officer of the court, he is nevertheless an executive official of the
 Government, and it is as an officer of the executive department that he
 exercises a discretion as to whether or not there shall be a prosecution in
 a particular case. It follows, as an incident of the constitutional
 separation of powers, that the courts are not to interfere with the free
 exercise of the discretionary powers of the attorneys of the United States
 in their control over criminal prosecutions.(95)

Other circuits have arrived at similar conclusions. As the Eleventh Circuit has observed, the "heavy burden" imposed on defendants to show evidence of unconstitutional selective prosecution "is indicative of the policy of restraint that derives from a respect for executive, prosecutorial discretion implicit in constitutional separation of powers."(96) Similarly, the Ninth Circuit has observed that "the separation of powers mandates judicial respect for the prosecutor's independence,"(97) and that "[u]nder our system of separation of powers, the decision whether to prosecute ... rests in the discretion of the Attorney General or his delegates, the United States Attorneys."(98)

B. Limitations on Prosecutorial Discretion

1. Equal Protection Constraints and Judicial Review

Nonetheless, it would be wrong to conclude, based on this line of cases, that the separation of powers prohibits the courts from considering legal arguments, such as the application of section 3501, as a basis for admitting controverted evidence, even if such arguments are not advanced by the prosecution. As an initial matter, it is important to recognize that although the separation of powers confers upon the Executive a wide degree of discretion in managing the prosecution of cases, such prosecutorial discretion is not plenary. To the contrary, despite the deference usually conferred upon prosecutorial decisions, in some limited circumstances the Court has ruled that judicial review is appropriate. For example, judicial review is permitted to scrutinize alleged "selectivity in the enforcement of criminal laws."(99) Thus, the Supreme Court has held to be impermissible decisions to prosecute that are "deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification."(100) The exercise of statutory or constitutional rights also have been held to be improper bases for prosecution, and thus subject to judicial review.(101) Such prosecutorial decisions are reviewed under traditional equal protection standards.(102) Moreover, the Court has extended this review of constitutional claims beyond the charging decision to other aspects of the prosecutorial decision-making process.(103) Thus, by emphasizing the fact that judicial deference to prosecutorial discretion traditionally focuses on respecting the Executive's calculus in determining either who to prosecute or its strategy in conducting the prosecution, those who challenge the court's sua sponte consideration of section 3501 neglect the fact that the Equal Protection Clause functions as an important external constitutional constraint that limits the Executive's prosecutorial discretion and permits the courts to exercise judicial review.

2. Article III and Judicial Review

Just as the Equal Protection Clause constrains the Executive Branch's prosecutorial discretion and permits the courts to exercise judicial review of prosecutorial decision-making, so too does Article III empower the Judiciary, in limited circumstances, to inject itself into what would ordinarily be the exclusive province of the Executive. These unique circumstances arise when Congress, acting pursuant to its Article I authority to legislate,(104) enacts a statute that purports to establish a mandatory evidentiary rule, as was the case with the passage of section 3501. Recall that section 3501 purported to replace Miranda with a required multi-factor voluntariness test for determining the admissibility of confessions. In other words, this was an instruction by Congress to the courts that when confronted with a dispute over the admissibility of a confession, the courts should determine whether the confession was given voluntarily, rather than applying the mechanical test imposed by Miranda. The courts were not given leeway in deciding whether to apply section 3501--it was mandatory.

Once Congress has legislated on a matter, the courts' responsibility under Article III to decide cases and controversies according to the law becomes paramount and cannot be subverted by Executive oversight or refusal to invoke the relevant legal standard. Consider the Supreme Court decision in United States National Bank of Oregon v. Independent Insurance Agents of America.(105) In that case, the Court faced the improbable question of whether it was permissible for a court of appeals to determine whether a statute had been repealed and thus whether it continued to remain valid law, even though the litigants themselves had not raised the issue.(106) In U.S. National Bank, a unanimous Supreme Court affirmed the court of appeals' decision to consider unilaterally whether the statute upon which the case rested had been repealed -- despite the fact that neither of the parties presented the issue on appeal.(107) The Court premised its conclusion on the fact that under Article III, the "judicial Power" extends to cases "arising under the ... Laws of the United States."(108) As a consequence, by considering the status of the statute in question, "the Court of Appeals did not stray beyond its constitutional or prudential boundaries."(109) The U.S. National Bank decision thus suggests that the courts are under an independent duty imposed by Article III to discern the relevant law to apply and that the failure by the parties to invoke the correct statute does not preclude the courts from unilaterally seeking and applying the appropriate legal standard.

This is not to suggest, of course, that the court must accept the constitutionality of the statute that Congress directs them to apply, only that Article III requires courts to consider the statute; it is entirely possible that when the court applies the congressionally mandated legal standard it will find that it is unconstitutional for any one of a variety of reasons. Thus, in Dickerson, although the court was correct to invoke section 3501 sua sponte, as the subsequent Supreme Court decision reveals, the court, having invoked it, should have declared the statute unconstitutional. The constitutionality of the statute, however, is immaterial to the question of whether the court must take the first step in invoking the rule.

In other words, contrary to those who suggest that by invoking section 3501 the Fourth Circuit transgressed the boundaries imposed by our system of separation of powers, the court's actions in Dickerson differ significantly in kind from the sorts of prosecutorial decisions to which the judiciary ordinarily owes deference. Unlike such prosecutorial decisions -- determining, for instance, whether to charge an individual or which specific charges to bring -- the Dickerson court's application of section 3501 merely applied statutory law directly on point and at the explicit instruction of Congress. This distinction is crucial and goes to the heart of the Judiciary's Article III powers. Since Marbury v. Madison, it has been firmly established that "[i]t is emphatically the province and duty of the judicial department to say what the law is."(110) Thus, rather than an infringement on the prosecutorial discretion of the Executive, the Fourth Circuit's consideration of [sections] 3501 sua sponte is properly seen as an appropriate exercise of the court's constitutionally mandated function of deciding cases and controversies according to the law. In other words, the court's consideration of [sections] 3501 sua sponte is not a violation of separation of powers principles that infringes upon the Executive's prerogatives, but rather a necessary means by which the Judiciary performs its constitutionally mandated functions. Thus, the critics' objection to the Fourth Circuit's consideration of [sections] 3501 should be inverted; judicial acquiescence to the Executive's refusal to invoke applicable legislation represents not an affirmation of separation of powers, but a violation of it. As Justice Scalia observed in his Davis concurrence, "[w]e shirk from our duty if we systematically disregard that statutory command simply because the Justice Department systematically declines to remind us of it."(111) From the perspective of the courts, the "point is whether our continuing refusal to consider [sections] 3501 is consistent with the Third Branch's obligation to decide according to the law."(112)


Since the Judiciary is shorn of an ability to protect itself through politics, ensuring adequate protection of judicial interests must fall to the structural components of separation of powers. The paramount judicial obligation is to decide cases and controversies according to the law. This duty, imposed on the Judiciary by Article III, necessarily requires that the courts discern what law is to be applied; the courts simply cannot rely on the parties to make that determination for them. Thus, although under ordinary circumstances the separation of powers requires that the courts defer to the Executive Branch's almost unfettered discretion to prosecute criminal cases as it sees fit, that deference must not be understood to trump the Judiciary's own constitutionally compelled responsibilities. Consequently, when Congress enacts a legal standard controlling the admissibility of evidence in a criminal case, the court's duty under Article III requires that it invoke that standard regardless of whether the prosecution wishes it to do so. Doing otherwise, rather than preserving the separation of powers, as some suggest, only serves to violate it.

(1.) See U.S. CONST. Art. II, [sections] 3 (stating that the President shall "take Care that the Laws be faithfully executed").

(2.) Marbury v. Madison, 5 U.S. 137, 177 (1803).

(3.) 384 U.S. 436 (1966).

(4.) United States v. Dickerson, 166 F.3d 667, 671 (4th Cir. 1999) ("Congress, pursuant to its power to establish the rules of evidence and procedure in the federal courts, acted well within its authority in enacting [sections] 3501. As a consequence, [sections] 3501 rather than Miranda, governs the admissibility of confessions in federal court."), rev'd, 530 U.S. 428 (2000).

(5.) Id. at 672.

(6.) Brief for the United States, Petition for Writ of Certiorari at 38, Dickerson v. United States, 530 U.S. 428 (2000) (No. 99-5525).

(7.) Id. at 38. However, the Justice Department nonetheless decided not to seek certiorari on whether the Fourth Circuit acted properly in considering section 3501 sua sponte. The Supreme Court confined its grant of certiorari to the issue of whether "a voluntary confession may be admitted into evidence in the government's case-in-chief under 18 U.S.C. [sections] 3501, notwithstanding that the confession was taken in violation of the requirements of Miranda v. Arizona." Dickerson v. United States, 528 U.S. 1045 (1999) (granting certiorari and inviting Paul G. Cassell to brief and argue as amicus curiae). An amicus brief was filed, however, on behalf of former Attorney General Benjamin R. Civiletti, arguing that the Fourth Circuit did in fact violate the separation of powers by raising section 3501 sua sponte. See Brief of Amicus Curiae Benjamin R. Civiletti at 7, Dickerson v. United States, 530 U.S. 428 (2000) (No. 99-5525).

(8.) This Note does not address the merits of the claim litigated in Dickerson, namely whether Congress, via section 3501, constitutionally could override the specific mandates of Miranda. Instead, this Note confines its focus to the narrower questions of whether the Fourth Circuit acted appropriately in considering the issue despite the fact that the Department of Justice affirmatively decided that it would not use section 3501 as a means for seeking the admission of otherwise Miranda-bad confessions.

(9.) 378 U.S. 478 (1964).

(10.) See id. at 490-91. The Court held that where
 the investigation is no longer a general inquiry into an unsolved crime but
 has begun to focus on a particular suspect, the suspect has been taken into
 police custody, the police carry out a process of interrogations that lends
 itself to eliciting incriminating statements, the suspect has requested and
 been denied an opportunity to consult with his lawyer, and the police have
 not effectively warned him of his absolute constitutional right to remain
 silent, the accused has been denied "The Assistance of Counsel" in
 violation of the Sixth Amendment to the Constitution as "made obligatory
 upon the States by the Fourteenth Amendment" ... and that no statement
 elicited by the police during the interrogation may be used against him at
 a criminal trial.

Id. (citation omitted).

(11.) 384 U.S. 436 (1966).

(12.) Id. at 442 ("[Escobedo] was but an explication of basic rights that are enshrined in our Constitution -- that `No person shall be compelled in any criminal case to be a witness against himself,' and that `the accused shall have the Assistance of Counsel' -- rights which were put in jeopardy in that case through official overbearing.").

(13.) Id. at 460-63. See Charles D. Weisselberg, Saving Miranda, 84 CORNELL L. REV. 109, 166-67 (1998) (concluding that Miranda bright-line rules are necessary to combat psychologically coercive atmosphere of police interrogations).

(14.) Miranda, 384 U.S. at 461 ("An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak.").

(15.) Id. at 467.

(16.) Id. at 444.

(17.) Id.

(18.) Id. at 467.

(19.) Id.

(20.) Id.

(21.) Id.

(22.) Id. at 490.

(23.) Shortly after the Supreme Court handed down Miranda, Senator John L. McClellan (D-Ark.), the Chairman of the Senate Subcommittee on Criminal Laws and Procedures, declared himself to be "unequivocally convinced ... that something must be done to alleviate the baleful effects of the Supreme Court's 5-to-4 Miranda decision." S.917, Controlling Crime Through More Effective Law Enforcement: Hearings Before the Subcommittee on Criminal Laws and Procedure of the Senate Committee on the Judiciary, 90th Cong., 1st Sess. (1967); see also Mark E. Herrmann, Note, Looking Down From the Hill: Factors Determining the Success of Congressional Efforts to Reverse Supreme Court Interpretations of the Constitution, 33 WM. & MARY L. REV. 543, 576-86 (1992) (detailing congressional response to Miranda).

(24.) 18 U.S.C. [sections] 3501(a) states, in pertinent part, "In any criminal prosecution brought by the United States or by the District of Columbia, a confession ... shall be admissible in evidence if it is voluntarily given. Before such confession is received in evidence, the trial judge shall, out of the presence of the jury, determine any issue as to voluntariness. If the trial judge determines that the confession was voluntarily made it shall be admitted in evidence and the trial judge shall permit the jury to hear relevant evidence on the issue of voluntariness and shall instruct the jury to give such weight to the confession as the jury feels it deserves under all the circumstances."

(25.) 18 U.S.C. [sections] 3501(b).

(26.) Id.

(27.) In addition, other sections of 18 U.S.C. [sections] 3501 overruled the constraints on the admission of evidence created by the Supreme Court in McNabb v. United States, 318 U.S. 332 (1943), and Mallory v. United States, 354 U.S. 449 (1957), acting pursuant to its supervisory authority over the administration of criminal justice in the federal courts. Thus, 18 U.S.C. [sections] 3501(c) mandated:
 In any criminal prosecution by the United States or by the District of
 Columbia, a confession made or given by a person who is a defendant
 therein, while such person was under arrest or other detention in the
 custody of any law-enforcement officer or law-enforcement agency, shall not
 be inadmissible solely because of delay in bringing such person before a
 magistrate or other officer empowered to commit persons charged with
 offenses against the laws of the United States or of the District of
 Columbia if such confession is found by the trial judge to have been made
 voluntarily and if the weight to be given the confession is left to the
 jury and if such confession was made or given by such person within six
 hours immediately following his arrest or other detention: Provided, That
 the time limitation contained in this subsection shall not apply in any
 case in which the delay in bringing such person before such magistrate or
 other officer beyond such six-hour period is found by the trial judge to be
 reasonable considering the means of transportation and the distance to be
 traveled to the nearest available such magistrate or other officer.


Likewise, 18 U.S.C. [sections] 3501(d) stipulated that "[n]othing contained in this section shall bar the admission in evidence of any confession made or given voluntarily by any person to any other person without interrogation by anyone, or at any time at which the person who made or gave such confession was not under arrest or other detention." See generally United States v. Alvarez-Sanchez, 511 U.S. 350 (1994).

(28.) 417 U.S. 433 (1974). For early views arguing that section 3501 was unconstitutional, see, e.g., Thomas S. Schrock, et al., Interrogation Rights: Reflections on Miranda v. Arizona, 52 S. CAL. L. REV. 1 (1978); A. Kenneth Pye, The Warren Court and Criminal Procedure, 67 MICH. L. REV. 249, 264 (1968).

(29.) Tucker, 417 U.S. at 444.

(30.) Id. at 446; see also id. at 444 ("The suggested safeguards were not intended to create a constitutional straightjacket, but rather to provide practical reinforcement for the right against compulsory self-incrimination."); Brown v. Illinois, 422 U.S. 590, 600-01 (1975) ("The function of the warnings relates to the Fifth Amendment's guarantee against coerced self-incrimination, and the exclusion of a statement made in the absence of the warnings, it is said, serves to deter the taking of an incriminating statement without first informing the individual of his Fifth Amendment rights.").

(31.) 470 U.S. 298 (1985).

(32.) Id. at 306-07. Nonetheless, some argued before Dickerson that the specific safeguards mandated by Miranda remain necessary to protect rights secured by the Fifth Amendment. One scholar, for example, noted that "[a]bandoning the original vision of Miranda leaves courts and police to struggle with case-by-case determinations of voluntariness. In contrast, by complying with Miranda, officers largely avert the need for a voluntariness inquiry." Weisselberg, supra note 13, at 166. Others, however, disputed this conclusion, and argued that Miranda unfairly hinders effective and legitimate police tactics. See generally, e.g., Paul G. Cassell & Richard Fowles, Handcuffing the Cops? A Thirty-Year Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN. L. REV. 1055 (1998); Paul G. Cassell, All Benefits, No Costs: The Grand Illusion of Miranda's Defenders, 90 NW. U. L. REV. 1084 (1996). For the opposing perspective, see, e.g., Welsh S. White, False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions, 32 HARV. C.R.-C.L.L. REV. 425 (1997); Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. Rev. 501 (1996); George C. Thomas, III, Plain Talk About the Miranda Empirical Debate: A "Steady-State" Theory of Confessions, 43 UCLA L. REV. 933 (1996).

(33.) See Daniel Gandara, Admissibility of Confessions in Federal Prosecutions: Implementation of Section 3501 by Law Enforcement Officials and the Courts, 63 GEO. L.J. 305, 311 (1974).

(34.) United States v. Crocker, 510 F.2d 1129, 1138 (10th Cir. 1975). Crocker subsequently was overruled by the Dickerson decision. See United States v. Bustillos-Munoz, 235 F.3d 505, 516 (10th Cir. 2000) (noting that Crocker was overruled by Dickerson).

(35.) Letter from Dick Thornburgh to the Hon. Strom Thurmond, Chairman, Senate Subcommittee on Criminal Justice Oversight, Committee on the Judiciary (October 7, 1999) (on file with the American Criminal Law Review) ("With regard to [sections] 3501, I do not remember any cases of discussions within the Department that I was aware of that related to the invocation of that statute during my tenure as Attorney General. At the same time, I certainly know of no policy that would have prevented individual U.S. Attorneys from making arguments based on this provision.").

(36.) Letter from Edwin Meese, III to the Hon. Strom Thurmond, Chairman, Senate Subcommittee on Criminal Justice Oversight, Committee on the Judiciary (May 12, 1999) (on file with the American Criminal Law Review).

(37.) See id. Paul Cassell later was appointed by the Supreme Court in Dickerson to argue for the constitutionality of section 3501 when the Justice Department declined to do so. See Dickerson v. United States, 528 U.S. 1045 (1999) (granting certiorari and inviting Paul Cassell to brief and argue amicus curiae).

(38.) See United States v. Goudreau, 854 F.2d 1097 (8th Cir. 1988) (holding Miranda warnings were not required because suspect was not in custody).

(39.) See Past Enforcement of 18 U.S.C. 3501 by the U.S. Department of Justice, Hearing Before the Senate Judiciary Subcomm. on Criminal Justice Oversight, 105th Cong. (May 12, 1999) (statement of Stephen J. Marksman). According to Marksman, the Justice Department adopted a litigation strategy of attempting to "identify a case in which the Department could directly raise the constitutionality of 3501. Such efforts involved identifying a case in which the voluntariness of a confession was not essentially in dispute, and therefore in which there was no actual coercion in violation of the Fifth Amendment, but nonetheless a case in which an element of the Miranda warnings had not been properly given." Id.

(40.) Letter from William P. Barr to the Hon. Strom Thurmond, Chairman, Senate Subcommittee on Criminal Justice Oversight, Committee on the Judiciary (July 22, 1999) (on file with the American Criminal Law Review).

(41.) See id. Although the Bush Administration was unable to find an appropriate case, Barr related that the effort to do so "demonstrates the Bush Administration's commitment to use and defend section 3501 and seek a definitive adjudication as to its constitutionality." Id.

(42.) See U.S. Department of Justice, Petition for Writ of Certiorari, Dickerson v. United States, 530 U.S. 428 (2000) (No. 99-5525).

(43.) Nominations of Joel I. Klein and Eric H. Holder, Jr.: Hearings before the Senate Comm. on the Judiciary, 105th Cong. 130 (1997) (responses of Eric H. Holder, Jr. to Senator Ashcroft).

(44.) Id.

(45.) Id.

(46.) Letter from Attorney General Janet Reno to the Hon. Albert Gore, Jr., President of the Senate (Sept. 10, 1997) (on file with the American Criminal Law Review) [hereinafter "Reno Letter"].

(47.) Id. The Department of Justice took the position that because the Supreme Court had addressed the issue of custodial confessions, Miranda was controlling such that "the lower federal courts are not at liberty to apply section 3501 in any way that would contravene the rules set forth by the Supreme Court in Miranda." Letter from Assistant Attorney General Andrew Fois to the Hon. John Ashcroft, United States Senate (Sept. 11, 1997) (on file with the American Criminal Law Review) [hereinafter "Fois Letter"]. However, the Justice Department explained, "the same considerations would not control if the question of section 3501's validity were presented to the Supreme Court, since that Court (unlike lower federal courts) is free to reconsider its prior decisions." Id. (responding to letter from members of the Judiciary Committee inquiring as to the Justice Department's position regarding the applicability of section 3501 in United States v. Leong).

Nonetheless, Reno maintained that she had not as yet determined whether the Department of Justice would defend the constitutionality of section 3501 should the issue be properly presented before the Supreme Court. See Reno Letter, supra note 46. Reno noted:
 Because the Department has not determined that it will decline to defend
 the constitutionality of Section 3501 in the Supreme Court, should the
 issue arise there, it is unclear whether the reporting requirement of Pub.
 L. No. 96-132, [sections] 21 (a) (2) ... are triggered by our filing in
 Leong. Nonetheless, should the Department's determination that it will
 "refrain from defending Section 3501 in the lower courts trigger the
 statute's reporting requirements," this letter will serve as that report.

Id.; see also Testimony of Janet Reno, Before the Senate Judiciary Subcomm. on Criminal Justice Oversight, 105th Cong. (July 15, 1998) ("It is possible that the issue of 3501's validity or the constitutional status of Miranda may nevertheless be presented in the Supreme Court in a future federal case in which lower courts apply 3501, despite the Department's arguments to the contrary, or in a state case, challenging the status of the Miranda rule itself."). And in May 1999, Assistant Attorney General James K. Robinson testified before the Senate, where he reiterated that it "continues to be the traditional practice of the Department of Justice to defend Acts of Congress unless they are plainly unconstitutional under governing Supreme Court precedent, or where they impermissibly encroach upon the Executive's authority." Admissibility of Confessions -- 18 U.S.C. 3501: Hearings Before the Senate Judiciary Subcomm. on Criminal Justice Oversight, 105th Cong. (May 13, 1999) (statement of Asst. Attorney General James K. Robinson).

(48.) 512 U.S. 452 (1994). See generally Jane M. Faulkner, Note, So You Kinda, Sorta, Think You Might Need a Lawyer?: Ambiguous Requests for Counsel After Davis v. United States, 49 ARK. L. REV. 275 (1996); Jonathan B. Bruno, Comment, Davis v. United States: Leaving Less Articulate Suspects to Fend for Themselves in the Face of Custodial Interrogation, 22 NEW. ENG. J. ON CRIM. & CIV. CONFINEMENT 29 (1996); Nancy M. Kennelly, Note, Davis v. United States: The Supreme Court Rejects a Third Layer of Prophylaxis, 26 LOY. U. CHI. L.J. 589 (1995).

(49.) The Court noted that although "we will consider arguments raised only in an amicus brief," it was "reluctant to do so when the issue is one of first impression involving the interpretation of a federal statute on which the Department of Justice expressly declines to take a position." Davis, 512 U.S. at 457.

(50.) Id. at 463 (Scalia, J., concurring).

(51.) Id. at 464.

(52.) Id. at 464-65. In addition, Justice Scalia observed:
 The United States' repeated refusal to invoke [sections] 3501, combined
 with the courts' traditional (albeit merely prudential) refusal to consider
 arguments not raised, has caused the federal judiciary to confront a host
 of "Miranda" issues that might be entirely irrelevant under federal law ...
 [w]orse still, it may have produced--during an era of intense national
 concern about the problem of runaway crime--the acquittal and the
 nonprosecution of many dangerous felons, enabling them to continue their
 depredations upon our citizens. There is no excuse for this.


(53.) 116 F.3d 1474 (4th Cir. 1997) (unpublished opinion), available at 1997 WL 351214.

(54.) See id.

(55.) Id.

(56.) 468 U.S. 420, 435 (1984) (considering "whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered `custodial interrogation'" for purposes of Miranda).

(57.) Leong, 1997 WL 351214, at *4.

(58.) Reno Letter, supra note 46.

(59.) Fois Letter, supra note 47.

(60.) Id.

(61.) See Reno Letter, supra note 46 ("Because the Department has not determined that it will decline to defend the constitutionality of Section 3501 in the Supreme Court, should the issue arise there ... should the Department's determination that it will `refrain from defending' section 3501 in the lower courts trigger the statute's reporting requirements, this letter will serve as that report.").

(62.) See Dickerson v. United States, 120 S. Ct. 2326, 2330 (2000).

(63.) See United States v. Elie, 111 F.3d 1135, 1142 (4th Cir. 1997) (holding that "derivative evidence obtained as a result of an unwarned statement that was voluntary under the Fifth Amendment is never `fruit of the poisonous tree'").

(64.) Dickerson, 166 F.3d at 695 (Michael, J., dissenting).

(65.) Id. at 697.

(66.) Id.

(67.) See generally William G. Buss, An Essay on Federalism, Separation of Powers, and the Demise of the Religious Freedom Restoration Act, 83 Iowa L. REV. 391 (1998); William N. Eskridge, Jr., Relationships Between Formalism and Functionalism in Separation of Powers, 22 HARV. J.L. & PUB. POL'Y 21 (1998); Burt Neuborne, Formalism, Functionalism, and the Separation of Powers, 22 HARV. J.L. PUB. POL'Y 45 (1998).

(68.) See Keith Werhan, Normalizing the Separation of Powers, 70 TUL. L. REV. 2681, 2682 (1996) (noting recent debates over formalistic and functional approaches to separation of powers).

(69.) 487 U.S. 654 (1988).

(70.) See Bowsher v. Synar, 478 U.S. 714 (1986) (invalidating Gramm-Rudman-Hollings Act).

(71.) See INS v. Chadha, 462 U.S. 919 (1983) (invalidating legislative veto).

(72.) THE FEDERALIST NO. 47 (James Madison) (quoting Montesquieu) (emphasis in original).

(73.) THE FEDERALIST NO. 78 (Alexander Hamilton).

(74.) Id.

(75.) Child Support Recovery Act of 1992, 18 U.S.C. [sections] 228 (1994).

(76.) 152 F.3d 1156 (9th Cir. 1998) [hereinafter Mussari I], reh'g denied, 168 F.3d 1141 (9th Cir. 1999) [hereinafter Mussari II].

(77.) Mussari, I 152 F.3d at 1159.

(78.) Mussari II, 168 F.3d at 1142 (Kozinski, J., dissenting from denial of rehearing).

(79.) Id. (emphasis added).

The dispute in Mussari is not unique. Similarly, in United States v. Burdeau, Judge Kozinski lambasted the Ninth Circuit for attempting to "buffalo the Department of Justice into changing its position." United States v. Burdeau, 168 F.3d 352 (9th Cir. 1999), reh'g denied, 180 F.3d 1091, 1093 (9th Cir. 1999) (Kozinski, J., dissenting from denial of rehearing). He declared, "[u]nseemly as it is for a court to offer abstract policy recommendations, it is much worse to leverage the court's moral authority to change a result when we are supposed to be impartial arbiters." Id.

(80.) See supra notes 76-79 and accompanying text.

(81.) See Brooke B. Grona, Note, United States v. Dickerson: Leaving Miranda and Finding a Deserted Statute, 36 AM. J. Cram. L. 367,380 (1999) (arguing the Fourth Circuit should not have applied section 3501 unilaterally); Eric D. Miller, Note, Should Courts Consider 18 USC [sections] 3501 Sua Sponte?, 65 U. CHI. L. REV. 1029 (1998) (arguing it is appropriate for courts to consider section 3501 even if not first raised by the Department of Justice).

(82.) Wayte v. United States, 470 U.S. 598, 607 (1985); United States v. Goodwin, 457 U.S. 368, 380 (1982) ("For just as a prosecutor may forgo legitimate charges already brought in an effort to save the time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded."); United States v. Brock, 782 F.2d 1442, 1444 (7th Cir. 1985) ("The United States Attorney, of necessity, enjoys broad discretion in setting prosecutorial priorities.").

(83.) Wayte, 470 U.S. at 607; see also Massey v. Smith, 555 F.2d 1355, 1356 (8th Cir. 1977) ("The authority to decide against whom federal indictments shall be sought lies almost exclusively with the United States Attorneys or the Justice Department, and their decisions in this regard are not generally subject to judicial review."); Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) ("Few subjects are less adapted to judicial review than the exercise by the Executive of his discretion in deciding when and where to institute criminal proceedings, or what precise charge shall be made, or whether to dismiss a proceeding once brought."). Cf. United States v. Tucker, 78 F.3d 1313, 1317 (8th Cir. 1995) (holding that the Attorney General's referral to the Office of Independent Counsel is not "any more subject to judicial review than the usual prosecutorial decisions").

(84.) 480 U.S. 386 (1987).

(85.) Id. at 396.

(86.) Bordenkircher v. Hayes, 434 U.S. 357,364 (1978).

(87.) United States v. Giannattasio, 979 F.2d 98, 100 (7th Cir. 1992); see also United States v. Kysar, 459 F.2d 422,424 (10th Cir. 1972) (stating the prosecutor "has the power to prosecute or not to prosecute; this decision is not reviewable by any court").

(88.) Bordenkircher, 434 U.S. at 364 (holding that the Due Process Clause of the Fourteenth Amendment is not violated when a state prosecutor carries out a threat made during plea negotiations to reindict the accused on more serious charges if he does not plead guilty to the offense with which he was originally charged); see also tyler v. Boles, 368 U.S. 448, 456 (1962) (holding "the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation").

(89.) Newton, 480 U.S. at 397 (holding trial court may enforce agreement in which criminal defendant releases right to file action against municipality under 42 U.S.C. [sections] 1983 in exchange for prosecutor's dismissal of pending criminal charges because "mere opportunity to act improperly does not compel an assumption that all -- or even a significant number of -- release dismissal agreements stem from prosecutors abandoning the independence of judgment required by [their] public trust") (internal quotations omitted).

(90.) Wayte v. United States, 470 U.S. 598, 607-608 (1985).

(91.) 517 U.S. 456 (1996).

(92.) Id. at 464. See Marc Michael, Note, United States v. Armstrong: Selective Prosecution--A Futile Defense and its Arduous Standard of Discovery, 47 CATH. U.L. REV. 675 (1998) (examining the development of the selective prosecution claim).

(93.) 382 F.2d 479 (D.C. Cir. 1967).

(94.) Id. at 481; see also Armstrong, 517 U.S. at 465 ("Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts."); United States v. Zabawa, 39 F.3d 279, 284 (10th Cir. 1994) ("Because the district court's ruling forces the government to abandon, at least temporarily, the prosecution of separate crimes it has charged against defendants who are scheduled to be tried, we believe the ruling goes beyond those subject to the court's discretionary control and impinges upon the separation of powers. Prosecutorial discretion is a function of the executive branch, not the judiciary.").

(95.) United States v. Cox, 342 F.2d 167, 171 (5th Cir. 1965) (emphasis added); see also Newman, 382 F.2d at 481 n.5 ("The trial court should remember that the District Attorney's office is not a branch of the court, subject to the court's supervision. It is a part of the executive department, separate and apart from the judicial department. The District Attorney, and he alone, must determine the policies of that office. On the District Attorney rests the responsibility to determine whether to prosecute, when to prosecute and on what charges to prosecute. A case is not to be summarily dismissed because the court disagrees with some policy of the District Attorney's office.") (quoting United States v. Shaw, 226 A.2d 366, 368 (D.C. App. 1966)).

(96.) United States v. Jennings, 991 F.2d 725, 730 (11th Cir. 1993) (quoting United States v. Lichenstein, 610 F.2d 1272, 1281 n.4 (5th Cir. 1980)); see also United States v. Smith, 178 F.3d 22, 25 (1st Cir. 1999) (agreeing with majority of circuits that U.S. Attorney's certification of a substantial federal interest is an unreveiwable act of prosecutorial discretion); United States v. Campo, 140 F.3d 415, 419 (2d Cir. 1998) (refusing to order U.S. Attorney's Office to depart from office policy because doing so "would violate time-honored and fundamental principles of separation of powers"); United States v. Juvenile Male J.A.J., 134 F.3d 905, 909 (8th Cir. 1998) (holding separation of powers concerns mandate that U.S. Attorney's certification of a substantial federal interest is an unreviewable act of prosecutorial discretion).

(97.) United States v. Doe, 125 F.3d 1249, 1255 (9th Cir. 1997) (quoting United States v. Carrasco, 786 F.2d 1452, 1455 (9th Cir. 1986)).

(98.) United States v. Edmonson, 792 F.2d 1492, 1497 (9th Cir. 1986).

(99.) United States v. Batchelder, 442 U.S. 114, 125 (1979).

(100.) Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (quoting Oyler v. Boles, 368 U.S. 448, 456 (1962)).

(101.) See Wayte v. United States, 470 U.S. 598, 608 (1985); United States v. Goodwin, 457 U.S. 368, 372 (1982).

(102.) Wayte, 470 U.S. at 608; Oyler v. Boles, 368 U.S. 448 (1962).

(103.) See Wade v. United States, 504 U.S. 181, 185 (1992) (holding that federal district courts "have authority to review prosecutor's refusal to file a substantial-assistance motion and to grant a remedy if they find that the refusal was based on an unconstitutional motive"); see also United States v. Khoury, 62 F.3d 1138, 1142 (9th Cir. 1995) (holding that government erroneously presumed that a departure from the sentencing guidelines would constitute bad faith because such a departure might decrease the defendant's sentence); United States v. Paramo, 998 F.2d 1212, 1220-21 (3d Cir. 1993) (holding that defendant should have been given opportunity to show that reason why no motion was filed was prosecutorial vindictiveness for exercising right to trial).

(104.) See U.S. CONST. art. I.

(105.) 508 U.S. 439 (1993).

(106.) See Debra D. King, Comment, Judicial Expansion of National Banks' Insurance Powers: The Resurrection and Statutory Interpretation of Section 92 of the National Bank Act, 19 IOWA J. CORP. L. 833,836-841 (1994) (discussing the legislative history of the statute in question, the litigation in the lower courts, and the U.S. National Bank case in the Supreme Court).

(107.) 508 U.S. at 444.

(108.) Id. at 446.

(109.) Id. at 447. The court of appeals based its decision to consider the status of the statute on the fact that because the "controversy hangs on the interpretation of a statute that is presumed not to exist, we not only have the right to inquire into its validity, we have the duty to do so." Independent Insurance Agents of America v. Clarke, 955 F.2d 731,734 (D.C. Cir. 1992).

(110.) Marbury v. Madison, 5 U.S. 137, 177 (1803).

(111.) Davis v. United States, 512 U.S. 452, 465 (1994) (Scalia, J., concurring).

(112.) Id. (emphasis in original). In this regard, Justice Scalia correctly observed that whether the Executive's failure to invoke section 3501 represents a violation of its duties under the Take Care Clause "is not the point." Id.

Andrew B. Loewenstein, Law Clerk to the Hon. William J. Holloway, Jr., U.S. Court of Appeals for the Tenth Circuit; J.D., cum laude, Georgetown University Law Center, 2000; M.Sc., London School of Economics, 1997; A.B., magna cum laude, Brown University, 1996.
COPYRIGHT 2001 Georgetown University Law Center
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2001 Gale, Cengage Learning. All rights reserved.

 Reader Opinion




Article Details
Printer friendly Cite/link Email Feedback
Author:Loewenstein, Andrew B.
Publication:American Criminal Law Review
Article Type:Case Note
Geographic Code:1USA
Date:Mar 22, 2001
Previous Article:The Great Debate V: A debate on judicial reform, England v. United States.
Next Article:Better to be judged by twelve than carried by six: the need for an "against-self-preservation" interest exception to the hearsay rule.

Terms of use | Copyright © 2015 Farlex, Inc. | Feedback | For webmasters