author: Justice Souter Justice Breyer, Justice Kennedy, Justice O’Connor,

text:
    MISSOURI v. SEIBERT
    No. 02-1371.
    Argued December 9, 2003 —
    Decided June 28, 2004

      Karen K. Mitchell, Chief Deputy Attorney General of Missouri, argued the cause for petitioner. With her on the briefs were Jeremiah W. (Jay) Nixon, Attorney General, James R. Layton, State Solicitor, and Shaun J. Mackelprang and Karen R Hess, Assistant Attorneys General.

      Irving L. Gornstein argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Acting Assistant Attorney General Wray, Deputy Solicitor General Dreehen, and Jonathan L. Marcus.

      Amy M. Bartholow argued the cause and filed a brief for respondent.

       Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Jonathan L. Abram, Christopher T. Hand-man, William H. Johnson, Steven R. Shapiro, and Lisa Kemler; and for Michael R. Bromwich et al. by George A. Cumming, Jr., Charles D. Weisselberg, Stephen J. Schulhofer, Kirsten D. Levingston, Frederick A. Q. Schwarz, Jr., and Tom Gerety.

   Justice Souter

announced the judgment of the Court and delivered an opinion, in which Justice Stevens, Justice Ginsburg, and Justice Breyer join.

This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda v. Arizona, 384 U. S. 436 (1966), the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement. Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.

I

Respondent Patrice Seibert’s 12-year-old son Jonathan had cerebral palsy, and when he died in his sleep she feared charges of neglect because of bedsores on his body. In her presence, two of her teenage sons and two of their friends devised a plan to conceal the facts surrounding Jonathan’s death by incinerating his body in the course of burning the family’s mobile home, in which they planned to leave Donald Rector, a mentally ill teenager living with the family, to avoid any appearance that Jonathan had been unattended. Seibert’s son Darían and a friend set the fire, and Donald died.

Five days later, the police awakened Seibert at 3 a.m. at a hospital where Darían was being treated for burns. In arresting her, Officer Kevin Clinton followed instructions from Rolla, Missouri, Officer Richard Hanrahan that he refrain from giving Miranda warnings. After Seibert had been taken to the police station and left alone in an interview room for 15 to 20 minutes, Officer Hanrahan questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating “Donald was also to die in his sleep.” App. 59 (internal quotation marks omitted). After Seibert finally admitted she knew Donald was meant to die in the fire, she was given a 20-minute coffee and cigarette break. Officer Hanrahan then turned on a tape recorder, gave Seibert the Miranda warnings, and obtained a signed waiver of rights from her. He resumed the questioning with “Ok, ’trice, we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?” App. 66, and confronted her with her prewarning statements:

Hanrahan: “Now, in discussion you told us, you told us that there was a[n] understanding about Donald.”
Seibert: “Yes.”
Hanrahan: “Did that take place earlier that morning?” Seibert: “Yes.”
Hanrahan: “And what was the understanding about Donald?”
Seibert: “If they could get him out of the trailer, to take him out of the trailer.”
Hanrahan: “And if they couldn’t?”
Seibert: “I, I never even thought about it. I just figured they would.”
Hanrahan: “’Trice, didn’t you tell me that he was supposed to die in his sleep?”
Seibert: “If that would happen, ’cause he was on that new medicine, you know ....”
Hanrahan: “The Prozac? And it makes him sleepy. So he was supposed to die in his sleep?”
Seibert: “Yes.” Id., at 70.

After being charged with first-degree murder for her role in Donald’s death, Seibert sought to exclude both her pre-warning and postwarning statements. At the suppression hearing, Officer Hanrahan testified that he made a “conscious decision” to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question “until I get the answer that she’s already provided once.” App. 31-34. He acknowledged that Seibert’s ultimate statement was “largely a repeat of information . . . obtained” prior to the warning. Id., at 30.

The trial court suppressed the prewarning statement but admitted the responses given after the Miranda recitation. A jury convicted Seibert of second-degree murder. On appeal, the Missouri Court of Appeals affirmed, treating this case as indistinguishable from Oregon v. Elstad, 470 U. S. 298 (1985). No. 23729, 2002 WL 114804 (Jan. 30, 2002) (not released for publication).

The Supreme Court of Missouri reversed, holding that “[i]n the circumstances here, where the interrogation was nearly continuous, . . . the second statement, clearly the product of the invalid first statement, should have been suppressed.” 93 S. W. 3d 700, 701 (2002) (en banc). The court distinguished Elstad on the ground that warnings had not intentionally been withheld there, 93 S. W. 3d, at 704, and reasoned that “Officer Hanrahan’s intentional omission of a Miranda warning was intended to deprive Seibert of the opportunity knowingly and intelligently to waive her Miranda rights,” id., at 706. Since there were “no circumstances that would seem to dispel the effect of the Miranda violation,” the court held that the postwarning confession was involuntary and therefore inadmissible. Ibid. To allow the police to achieve an “end run” around Miranda, the court explained, would encourage Miranda violations and diminish Miranda’s role in protecting the privilege against self-incrimination. 93 S. W. 3d, at 706-707. Three judges dissented, taking the view that Elstad applied even though the police intentionally withheld Miranda warnings before the initial statement, and believing that “Seibert’s unwarned responses to Officer Hanrahan’s questioning did not prevent her from waiving her rights and confessing.” 93 S. W. 3d, at 708 (opinion of Benton, J.).

We granted certiorari, 538 U. S. 1031 (2003), to resolve a split in the Courts of Appeals. Compare United States v. Gale, 952 F. 2d 1412, 1418 (CADC 1992) (while “deliberate ‘end run’ around Miranda” would provide cause for suppression, case involved no conduct of that order); United States v. Carter, 884 F. 2d 368, 373 (CA8 1989) (“Elstad did not go so far as to fashion a rule permitting this sort of end run around Miranda”), with United States v. Orso, 266 F 3d 1030, 1034-1039 (CA9 2001) (en banc) (rejecting argument that “tainted fruit” analysis applies because deliberate withholding of Miranda warnings constitutes an “improper tactic”); United States v. Esquilin, 208 F 3d 315, 319-321 (CA1 2000) (similar). We now affirm.

II

“In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment . . . commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” Bram v. United States, 168 U. S. 532, 542 (1897). A parallel rule governing the admissibility of confessions in state courts emerged from the Due Process Clause of the Fourteenth Amendment, see, e. g., Brown v. Mississippi, 297 U. S. 278 (1936), which governed state cases until we concluded in Malloy v. Hogan, 378 U. S. 1, 8 (1964), that “[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement — the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty ... for such silence.” In unifying the Fifth and Fourteenth Amendment voluntariness tests, Malloy “made clear what had already become apparent — that the substantive and procedural safeguards surrounding admissibility of confessions in state cases had become exceedingly exacting, reflecting all the policies embedded in the privilege” against self-incrimination. Miranda, 384 U. S., at 464.

In Miranda, we explained that the “voluntariness doctrine in the state cases ... encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from making a free and rational choice,” id., at 464-465. We appreciated the difficulty of judicial enquiry post hoc into the circumstances of a police interrogation, Dickerson v. United States, 530 U. S. 428, 444 (2000), and recognized that “the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk” that the privilege against self-incrimination will not be observed, id., at 435. Hence our concern that the “traditional totality-of-the-eircumstances” test posed an “unacceptably great” risk that involuntary custodial confessions would escape detection. Id., at 442.

Accordingly, “to reduce the risk of a coerced confession and to implement the Self-Incrimination Clause,” Chavez v. Martinez, 538 U. S. 760, 790 (2003) (Kennedy, J., concurring in part and dissenting in part), this Court in Miranda concluded that “the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored,” 384 U. S., at 467. Miranda conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver. See Berkemer v. McCarty, 468 U. S. 420, 433, n. 20 (1984) (“[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare”). To point out the obvious, this common consequence would not be common at all were it not that Miranda warnings are customarily given under circumstances allowing for a real choice between talking and remaining silent.

Ill

There are those, of course, who preferred the old way of doing things, giving no warnings and litigating the voluntariness of any statement in nearly every instance. In the aftermath of Miranda, Congress even passed a statute seeking to restore that old regime, 18 U. S. C. §3501, although the Act lay dormant for years until finally invoked and challenged in Dickerson v. United States, swpra. Dickerson reaffirmed Miranda and held that its constitutional character prevailed against the statute.

The technique of interrogating in successive, unwarned' and warned phases raises a new challenge to Miranda. Although we have no statistics on the frequency of this practice, it is not confined to Rolla, Missouri. An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked. App. 31-32. Consistently with the officer’s testimony, the Police Law Institute, for example, instructs that “officers may conduct a two-stage interrogation. ... At any point during the pre-Miranda interrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subsequent incriminating statements later in court.” Police Law Institute, Illinois Police Law Manual 83 (Jan. 2001-Dec. 2003) (available in Clerk of Court's case file) (hereinafter Police Law Manual) (emphasis in original). The upshot of all this advice is a question-first practice of some popularity, as one can see from the reported cases describing its use, sometimes in obedience to departmental policy.

IV

When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and question-first. Miranda addressed “interrogation practices . . . likely ... to disable [an individual] from making a free and rational choice” about speaking, 384 U. S., at 464-465, and held that a suspect .must be “adequately and effectively” advised of the choice the Constitution guarantees, id., at 467. The object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.

Just as “no talismanic incantation [is] required to satisfy [Miranda’s] strictures,” California v. Prysock, 453 U. S. 355, 359 (1981) (per curiam), it would be absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance. “The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda.’ ” Duckworth v. Eagan, 492 U. S. 195, 203 (1989) (quoting Prysock, supra, at 361). The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.

There is no doubt about the answer that proponents of question-first give to this question about the effectiveness of warnings given only after successful interrogation, and we think their answer is correct. By any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content. After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again. A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine, 475 U. S. 412, 424 (1986). By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.

V

Missouri argues that a confession repeated at the end of an interrogation sequence envisioned in a question-first strategy is admissible on the authority of Oregon v. Elstad, 470 U. S. 298 (1985), but the argument disfigures that case. In Elstad, the police went to the young suspect’s house to take him into custody on a charge of burglary. Before the arrest, one officer spoke with the suspect’s mother, while the other one joined the suspect in a “brief stop in the living room,” id., at 315, where the officer said he “felt” the young man was involved in a burglary, id., at 301 (internal quotation marks omitted). The suspect acknowledged he had been at the scene. Ibid. This Court noted that the pause in the living room “was not to interrogate the suspect but to notify his mother of the reason for his arrest,” id., at 315, and described the incident as having “none of the earmarks of coercion,” id., at 316. The Court, indeed, took care to mention that the officer's initial failure to warn was an “oversight” that “may have been the result of confusion as to whether the brief exchange qualified as 'custodial interrogation’ or . . . may simply have reflected . . . reluctance to initiate an alarming police procedure before [an officer] had spoken with respondent’s mother." Id., at 315-316. At the outset of a later and systematic station house interrogation going well beyond the scope of the laconic prior admission, the suspect was given Miranda warnings and made a full confession. Elstad, supra, at 301, 314-315. In holding the second statement admissible and voluntary, Elstad rejected the “cat out of the bag” theory that any short, earlier admission, obtained in arguably innocent neglect of Miranda, determined the character of the later, warned confession, El-stad, 470 U. S., at 311-314; on the facts of that case, the Court thought any causal connection between the first and second responses to the police was “speculative and attenuated,” id., at 313. Although the Elstad Court expressed no explicit conclusion about either officer’s state of mind, it is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic questioning in that particular case, but posing no threat to warn-first practice generally. See Elstad, supra, at 309 (characterizing the officers’ omission of Miranda warnings as “a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will”); 470 U. S., at 318, n. 5 (Justice Brennan’s concern in dissent that Elstad would invite question-first practice “distorts the reasoning and holding of our decision, but, worse, invites trial courts and prosecutors to do the same”).

The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.

At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings. The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory, statement previously elicited. In particular, the police did not advise that her prior statement could not be used. Nothing was said or done to dispel the oddity of warning about legal rights to silence and counsel right after the police had led her through a systematic interrogation, and any uncertainty on her part about a right to stop talking about matters previously discussed would only have been aggravated by the way Officer Hanrahan set the scene by saying “we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?” App. 66. The impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given. It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.

VI

Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Miranda’s, purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert’s postwarning statements are inadmissible. The judgment of the Supreme Court of Missouri is affirmed.

It is so ordered.

Justice Breyer,

concurring.

In my view, the following simple rule should apply to the two-stage interrogation technique: Courts should exclude the “fruits” of the initial unwarned questioning unless the failure to warn was in good faith. Cf. Oregon v. Elstad, 470 U. S. 298, 309, 318, n. 5 (1985); United States v. Leon, 468 U. S. 897 (1984). I believe this is a sound and workable approach to the problem this case presents. Prosecutors and judges have long understood how to apply the “fruits” approach, which they use in other areas of law. See Wong Sun v. United States, 371 U. S. 471 (1963). And in the workaday world of criminal law enforcement the administrative simplicity of the familiar has significant advantages over a more complex exclusionary rule. Cf. post, at 628-629 (O’Connor, J., dissenting).

I believe the plurality’s approach in practice will function as a “fruits” test. The truly “effective” Miranda warnings on which the plurality insists, ante, at 615, will occur only when certain circumstances — a lapse in time, a change in location or interrogating officer, or a shift in the focus of the questioning — intervene between the unwarned questioning and any postwarning statement. Cf. Taylor v. Alabama, 457 U. S. 687, 690 (1982) (evidence obtained subsequent to a constitutional violation must be suppressed as “fruit of the poisonous tree” unless “intervening events break the causal connection”).

I consequently join the plurality’s opinion in full. I also agree with Justice Kennedy’s opinion insofar as it is consistent with this approach and makes clear that a good-faith exception applies. See post, at 622 (opinion concurring in judgment).

Justice Kennedy,

concurring in the judgment.

The interrogation technique used in this case is designed to circumvent Miranda v. Arizona, 384 U. S. 436 (1966). It undermines the Miranda wárning and obscures its meaning. The plurality opinion is correct to conclude that statements obtained through the use of this technique are inadmissible. Although I agree with much in the careful and convincing opinion for the plurality, my approach does differ in some respects, requiring this separate statement.

The Miranda rule has become an important and accepted element of the criminal justice system. See Dickerson v. United States, 530 U. S. 428 (2000). At the same time, not every violation of the rule requires suppression of the evidence obtained. Evidence is admissible when the central concerns of Miranda are not likely to be implicated and when other objectives of the criminal justice system are best served by its introduction. Thus, we have held that statements obtained in violation of the rule can be used for impeachment, so that the truth-finding function of the trial is not distorted by the defense, see Harris v. New York, 401 U. S. 222 (1971); that there is an exception to protect countervailing concerns of public safety, see New York v. Quarles, 467 U. S. 649 (1984); and that physical evidence obtained in reliance on statements taken in violation of the rule is admissible, see United States v. Patane, post, p. 630. These cases, in my view, are correct. They recognize that admission of evidence is proper when it would further important objectives without compromising Miranda’s central concerns. Under these precedents, the scope of the Miranda suppression remedy depends on a consideration of those legitimate interests and on whether admission of the evidence under the circumstances would frustrate Miranda’s central concerns and objectives.

Oregon v. Elstad, 470 U. S. 298 (1985), reflects this approach. In Elstad, a suspect made an initial incriminating statement at his home. The suspect had not received a Miranda warning before making the statement, apparently because it was not clear whether the suspect was in custody at the time. The suspect was taken to the station house, where he received a proper warning, waived his Miranda rights, and made a second statement. He later argued that the postwarning statement should be suppressed because it was related to the unwarned first statement, and likely induced or caused by it. The Court held that, although a Miranda violation made the first statement inadmissible, the postwarning statements could be introduced against the accused because “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression” given the facts of that case. Elstad, supra, at 308 (citing Michigan v. Tucker, 417 U. S. 433, 445 (1974)).

In my view, Elstad was correct in its reasoning and its result. Elstad reflects a balanced and pragmatic approach to enforcement of the Miranda warning. An officer may not realize that a suspect is in custody and warnings are required. The officer may not plan to question the suspect or may be waiting for a more appropriate time. Skilled investigators often interview suspects multiple times, and good police work may involve referring to prior statements to test their veracity or to refresh recollection. In light of these realities it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning. See Elstad, 470 U. S., at 309 (“It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings... so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period”). That approach would serve “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the . . . testimony.” Id., at 308.

This case presents different considerations. The police used a two-step questioning technique based on a deliberate violation of Miranda. The Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given. As Justice Souter points out, the two-step technique permits the accused to conclude that the right not to respond did not exist when the earlier incriminating statements were made. The strategy is based on the assumption that Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory statements have already been obtained. This tactic relies on an intentional misrepresentation of the protection that Mi randa offers and does not serve any legitimate objectives that might otherwise justify its use.

Further, the interrogating officer here relied on the defendant’s prewarning statement to obtain the postwarning statement used against her at trial. The postwarning interview resembled a cross-examination. The officer confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them. See App. 70 (“ ’Trice, didn’t you tell me that he was supposed to die in his sleep?”). This shows the temptations for abuse inherent in the two-step technique. Reference to the prewarning statement was an implicit suggestion that the. mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false.

The technique used in this case ’distorts the meaning of Miranda and furthers no legitimate countervailing interest. The Miranda rule would be frustrated were we to allow police to undermine its meaning and effect. The technique simply creates too high a risk that postwarning statements will be obtained when a suspect was deprived of “knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Bur-bine, 475 U. S. 412, 423-424 (1986). When an interrogator uses this deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.

The plurality concludes that whenever a two-stage interview occurs, admissibility of the postwarning statement should depend on “whether [the] Miranda warnings delivered midstream could have been effective enough to accomplish their object” given the specific facts of the case. Ante, • at 615. This test envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations. Ante, at 615-617. In my view, this test cuts too broadly. Miranda's clarity is one of its strengths, and a multifactor test that applies to every two-stage interrogation may serve to undermine that clarity. Cf. Berkemer v. McCarty, 468 U. S. 420, 430 (1984). I would apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.

The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Cf. Westover v. United States, decided with Miranda v. Arizona, 384 U. S. 436 (1966). Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient. No curative steps were taken in this ease, however, so the postwarning statements are inadmissible and the conviction cannot stand.

For these reasons, I concur in the judgment of the Court.

Justice O’Connor,

with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.

The plurality devours Oregon v. Elstad, 470 U. S. 298 (1985), even as it accuses petitioner’s argument of “disfiguring]” that decision. Ante, at 614. I believe that we are bound by Elstad to reach a different result, and I would vacate the judgment of the Supreme Court of Missouri.

I

On two preliminary questions I am in full agreement with the plurality. First, the plurality appropriately follows El-stad in concluding that Seibert’s statement cannot be held inadmissible under a “fruit of the poisonous tree” theory. Ante, at 612, n. 4 (internal quotation marks omitted). Second, the plurality correctly declines to focus its analysis on the subjective intent of the interrogating officer.

A

This Court has made clear that there simply is no place for a robust deterrence doctrine with regard to violations of Miranda v. Arizona, 384 U. S. 436 (1966). See Dickerson v. United States, 530 U. S. 428, 441 (2000) (“Our decision in [Elstad] — refusing to apply the traditional ‘fruits’ doctrine developed in Fourth Amendment cases — . . . simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment”); Elstad, supra, at 306 (unlike the Fourth Amendment exclusionary rule, the “Miranda exclusionary rule ... serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself”); see also United States v. Patane, post, at 644-645 (Kennedy, J., concurring in judgment) (refusal to suppress evidence obtained following an unwarned confession in Elstad, New York v. Quarles, 467 U. S. 649 (1984), and Harris v. New York, 401 U. S. 222 (1971), was based on “our recognition that the concerns underlying the Miranda . . . rule must be accommodated to other objectives of the criminal justice system”). Consistent with that view, the Court today refuses to apply the traditional “fruits” analysis to the physical fruit of a claimed Miranda violation. Patane, post, p. 630. The plurality correctly refuses to apply a similar analysis to testimonial fruits.

Although the analysis the plurality ultimately espouses examines the same facts and circumstances that a “fruits” analysis would consider (such as the lapse of time between the two interrogations and change of questioner or location), it does so for entirely different reasons. The fruits analysis would examine those factors because they are relevant to the balance of deterrence value versus the “drastic and socially costly course” of excluding reliable evidence. Nix v. Williams, 467 U. S. 431, 442-443 (1984). The plurality, by contrast, looks to those factors to inform the psychological judgment regarding whether the suspect has been informed effectively of her right to remain silent. The analytical underpinnings of the two approaches are thus entirely distinct, and they should not be conflated just because they function similarly in practice. Cf. ante, at 617-618 (Breyer, J., concurring).

B

The plurality’s rejection of an intent-based test is also, in my view, correct. Freedom from compulsion lies at the heart of the Fifth Amendment, and requires us to assess whether a suspect’s decision to speak truly was voluntary. Because voluntariness is a matter of the suspect’s state of mind, we focus our analysis on the way in which suspects experience interrogation. See generally Miranda, 384 U. S., at 455 (summarizing psychological tactics used by police that “undermin[e]” the suspect’s “will to resist,” and noting that “the very fact of custodial interrogation . . . trades on the weakness of individuals”); id., at 467 (“[I]n-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely”).

Thoughts kept inside a police officer’s head cannot affect that experience. See Moran v. Burbine, 475 U. S. 412, 422 (1986) (“Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right”). In Moran, an attorney hired by the suspect’s sister had been trying to contact the suspect and was told by the police, falsely, that they would not begin an interrogation that night. Id., at 416-418. The suspect was not aware that an attorney had been hired for him. Id., at 417. We rejected an analysis under which a different result would obtain for “the same defendant, armed with the same information and confronted with precisely the same police conduct” if something not known to the defendant — such as the fact that an attorney was attempting to contact him— had been different. Id., at 422. The same principle applies here. A suspect who experienced exactly the same interrogation as Seibert, save for a difference in the undivulged, subjective intent of the interrogating officer when he failed to give Miranda warnings, would not experience the interrogation any differently. “[Wjhether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident.” 475 U. S., at 423. Cf. Stansbury v. California, 511 U. S. 318, 324-325 (1994) (per curiam) (police officer’s subjective intent is irrelevant to whether suspect is in custody for Miranda purposes; “one cannot expect the person under interrogation to probe the officer’s innermost thoughts”).

Because the isolated fact of Officer Hanrahan’s intent could not have had any bearing on Seibert’s “capacity to comprehend and knowingly relinquish” her right to remain silent, Moran, supra, at 422, it could not by itself affect the volun-tariness of her confession. Moreover, recognizing an exception to Elstad for intentional violations would require focusing constitutional analysis on a police officer’s subjective intent, an unattractive proposition that we all but uniformly avoid. In general, “we believe that ‘sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources.’ ” United States v. Leon, 468 U. S. 897, 922, n. 23 (1984) (quoting Massachusetts v. Painten, 389 U. S. 560, 565 (1968) (White, J., dissenting)). This case presents the uncommonly straightforward circumstance of an officer openly admitting that the violation was intentional. But the inquiry will be complicated in other situations probably more likely to occur. For example, different officers involved in an interrogation might claim different states of mind regarding the failure to give Miranda warnings. Even in the simple case of a single officer who claims that a failure to give Miranda warnings was inadvertent, the likelihood of error will be high. See W. LaFave, Search and Seizure § 1.4(e), p. 124 (3d ed. 1996) (“[T]here is no reason to believe that courts can with any degree of success determine in which instances the police had an ulterior motive”).

These evidentiary difficulties have led us to reject an intent-based test in several criminal procedure contexts. For example, in New York v. Quarles, one of the factors that led us to reject an inquiry into the subjective intent of the police officer in crafting a test for the “public safety” exception to Miranda was that officers’ motives will be “largely unverifiable.” 467 U. S., at 656. Similarly, our opinion in Whren v. United States, 517 U. S. 806, 813-814 (1996), made clear that “the evidentiary difficulty of establishing subjective intent” was one of the reasons (albeit not the principal one) for refusing to consider intent in Fourth Amendment challenges generally.

For these reasons, I believe that the approach espoused by Justice Kennedy is ill advised. Justice Kennedy would extend Miranda’s exclusionary rule to any case in which the use of the “two-step interrogation technique” was “deliberate” or “calculated.” Ante, at 622 (opinion concurring in judgment). This approach untethers the analysis from facts knowable to, and therefore having any potential directly to affect, the suspect. Far from promoting “clarity,” ibid., the approach will add a third step to the suppression inquiry. In virtually every two-stage interrogation case, in addition to addressing the standard Miranda and voluntariness questions, courts will be forced to conduct the kind of difficult, state-of-mind inquiry that we normally take pains to avoid.

II

The plurality’s adherence to Elstad, and mine to the plurality, end there. Our decision in Elstad rejected, two lines of argument advanced in favor of suppression. The first was based on the “fruit of the poisonous tree” doctrine, discussed above. The second was the argument that the “lingering compulsion” inherent in a defendant’s having let the “cat out of the bag” required suppression. 470 U. S., at 311. The Court of Appeals of Oregon, in accepting the latter argument, had endorsed a theory indistinguishable from the one today’s plurality adopts: “[T]he coercive impact of the unconstitutionally obtained statement remains, because in a defendant’s mind it has sealed his fate. It is this impact that must be dissipated in order to make a subsequent confession admissible.” State v. Elstad, 61 Ore. App. 673, 677, 658 P. 2d 552, 554 (1983).

We rejected this theory outright. We did so not because we refused to recognize the “psychological impact of the suspect’s conviction that he has let the cat out of the bag,” but because we refused to “endo[w]” those “psychological effects” with “constitutional implications.” 470 U. S., at 311. To do so, we said, would “effectively immuniz[e] a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver,” an immunity that “comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual’s interest in not being compelled to testify against himself.” Id., at 312. The plurality might very well think that we struck the balance between Fifth Amendment rights and law enforcement interests incorrectly in Elstad; but that is not normally a sufficient reason for ignoring the dictates of stare decisis.

I would analyze the two-step interrogation procedure under the voluntariness standards central to the Fifth. Amendment and reiterated in Elstad. Elstad commands that if Seibert’s first statement is shown to have been involuntary, the court must examine whether the taint dissipated through the passing of time or a change in circumstances: “When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.” Id., at 310 (citing Westover v. United States, decided with Miranda, 384 U. S., at 494). In addition, ,Sei-bert’s second statement should be suppressed if she showed that it was involuntary despite the Miranda warnings. El-stad, supra, at 318 (“The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements”). Although I would leave this analysis for the Missouri courts to conduct on remand, I note that, unlike the officers in Elstad, Officer Hanrahan referred to Seibert’s unwarned statement during the second part of the interrogation when she made a statement at odds with her unwarned confession. App. 70 (“ ’Trice, didn’t you tell me that he was supposed to die in his sleep?”); cf. Elstad, supra, at 316 (officers did not “exploit the unwarned admission to pressure respondent into waiving his right to remain silent”). Such a tactic may bear on the voluntariness inquiry. Cf. Frazier v. Cupp, 394 U. S. 731, 739 (1969) (fact that police had falsely told a suspect that his accomplice had already confessed was “relevant” to the voluntariness inquiry); Moran, 475 U. S., at 423-424 (in discussing police deception, stating that simply withholding information is “relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them”); Miranda, supra, at 476.

* * *

Because I believe that the plurality gives insufficient deference to Elstad and that Justice Kennedy places improper weight on subjective intent, I respectfully dissent.

       “[T]he burden of showing admissibility rests, of course, on the prosecution.” Brown v. Illinois, 422 U. S. 590, 604 (1975). The prosecution bears the burden of proving, at least by a preponderance of the evidence, the Miranda waiver, Colorado v. Connelly, 479 U. S. 157, 169 (1986), and the voluntariness of the confession, Lego v. Twomey, 404 U. S. 477, 489 (1972).

       Emphasizing the impeachment exception to the Miranda rule approved by this Court, Harris v. New York, 401 U. S. 222 (1971), some training programs advise officers to omit Miranda warnings altogether or to continue questioning after the suspect invokes his rights. See, e. g., Police Law Manual 83 (“There is no need to give a Miranda warning before asking questions if... the answers given .. . will not be required by the prosecutor during the prosecution’s case-in-chief”); California Commission on Peace Officer Standards and Training, Video Training Programs for California Law Enforcement, Miranda: Post-Invocation Questioning (broadcast July 11, 1996) (“We ... have been encouraging you to continue to question a suspect after they’ve invoked their Miranda rights”); D. Zulawski & D. Wicklander, Practical Aspects of Interview and Interrogation 50-51 (2d ed. 2002) (describing the practice of “[b]eachheading” as useful for impeachment purpose (emphasis deleted)); see also Weisselberg, Saving Miranda, 84 Cornell L, Rev. 109, 110, 132-139 (1998) (collecting California training materials encouraging questioning “outside Miranda”). This training is reflected in the reported cases involving deliberate questioning after invocation of Miranda rights. See, e. g., California Attorneys for Criminal Justice v. Butts, 195 F. 3d 1039, 1042-1044 (CA9 1999); Henry v. Kernan, 197 F. 3d 1021, 1026 (CA9 1999); People v. Neal, 31 Cal. 4th 63, 68, 72 P. 3d 280, 282 (2003); People v. Peevy, 17 Cal. 4th 1184,1189, 953 P. 2d 1212, 1215 (1998). Scholars have noted the growing trend of such practices. See, e. g., Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L. Rev. 1000, 1010 (2001); Weisselberg, In the Stationhouse After Dickerson, 99 Mich. L. Rev. 1121, 1123-1154 (2001).
      It is not the case, of course, that law enforcement educators en masse are urging that Miranda be honored only in the breach. See, e. g., C. O’Hara & G. O’Hara, Fundamentals of Criminal Investigation 133 (7th ed. 2003) (instructing police to give Miranda warnings before conducting custodial interrogation); F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 221 (3d ed. 1986) (hereinafter Inbau, Reid, & Buckley) (same); J. Reid & Assoc., Interviewing & Interrogation: The Reid Technique 61 (1991) (same). Most police manuals do not advocate the question-first tactic,' because they understand that Oregon v. Elstad,
        470 U. S. 298 (1985), involved an officer’s good-faith failure to warn. See, e. g., Inbau, Reid, & Buckley 241 (Elstad’s “facts as well as [its] specific holding” instruct that “where an interrogator has failed to administer the Miranda warnings in thé mistaken belief that, under the circumstances of the particular case, the warnings were not required, . . . corrective measures ... salvage an interrogation opportunity”).

       See, e. g., United States v. Orso, 266 F. 3d 1030, 1032-1033 (CA9 2001) (en banc); Pope v. Zenon, 69 F. 3d 1018, 1023-1024 (CA9 1995), overruled by Orso, supra; Cooper v. Dupnik, 963 F. 2d 1220, 1224-1227, 1249 (CA9 1992) (en banc); United States v. Carter, 884 F. 2d 368, 373 (CA9 1989); United States v. Esquilin, 208 F. 3d 315, 317 (CA1 2000); Davis v. United States, 724 A. 2d 1163, 1165-1166 (D. C. App. 1998).

       Respondent Seibert argues that her second confession should be excluded from evidence under the doctrine known by the metaphor of the “fruit of the poisonous tree,” developed in the Fourth Amendment context in Wong Sun v. United States, 371 U. S. 471 (1963): evidence otherwise admissible but discovered as a result of an earlier violation is excluded as taintéd, lest the law encourage future violations. But the Court in Elstad rejected the Wong Sun fruits doctrine for analyzing the admissibility of a subsequent warned confession following “an initial failure ... to administer the warnings required by Miranda.” Elstad, 470 U. S., at 300. In Elstad, “a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will,” did not “so tain[t] the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id., at 309. Elstad held that “a suspect who has once responded to unwarned yet uncoerdve questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Id., at 318. In a sequential confession case, clarity is served if the later confession is approached by asking whether in the circumstances the Miranda warnings given could reasonably be found effective. If yes, a court can take up the standard issues of voluntary waiver and voluntary statement; if no, the subsequent statement is inadmissible for want of adequate Miranda warnings, because the earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning.

       It bears emphasizing that the effectiveness Miranda assumes the warnings can have must potentially extend through the repeated interrogation, since a suspect has a right to stop at any time. It seems highly unlikely that a suspect could retain any such understanding when the interrogator leads him a second time through a line of questioning the suspect has already answered fully. The point is not that a later unknowing or involuntary confession cancels out an earlier, adequate warning; the point is that the warning is unlikely to be effective in the question-first sequence we have described,

       Because the intent of the officer will rarely be as candidly admitted as it was here (even as it is likely to determine the conduct of the interrogation), the focus is on facts apart from intent that show the question-first tactic at work.

       We do not hold that a formal addendum warning that a previous statement could not be used would be sufficient to change the character of the question-first procedure to the point of rendering an ensuing statement admissible, but its absence is clearly a factor that blunts the efficacy of the warnings and points to a continuing, not a new, interrogation.

       Because we find that the warnings were inadequate, there is no need to assess the actual voluntariness of the statement.


source: Caselaw Access Project

author: Justice Thomas Justice Kennedy, Justice Souter, Justice Breyer,

license: Public Domain

text:
    UNITED STATES v. PATANE
    No. 02-1183.
    Argued December 9, 2003 —
    Decided June 28, 2004

      Deputy Solicitor General Dreeben argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Acting Assistant Attorney General Wray, James A. Feldman, and Joseph C. Wyderko.

      Jill M. Wichlens argued the cause for respondent. With her on the brief were Michael G. Katz and Virginia L. Grady.

       Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by William H. Pryor, Jr., Attorney General of Alabama, Nathan A. Forrester, Solicitor General, Michael B. Billingsley, Deputy Solicitor General, Marc A Starrett, Assistant Attorney General, and by the Attorneys General for their respective States as follows: M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Steve Carter of Indiana, Mike McGrath of Montana, Jim Petro of Ohio, D. Michael Fisher of Pennsylvania, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Greg Abbott of Texas, Mark L. Shurtleff of Utah, William H. Sorrell of Vermont, Jerry W. Kilgore of Virginia, Peggy A. Lautenschlager of Wisconsin, and Patrick J. Crank of Wyoming; and ¡for the Criminal Justice Legal Foundation by Kent S. Scheidegger.

      Briefs of amici curiae urging affirmance were filed for the Brennan Center for Justice by Stephen J. Schulhofer, Frederick A. O. Schwarz, Jr., Tom Gerety, and E. Joshua Rosenkranz; and for the National Association of Criminal Defense Lawyers et al. by James J. Tomkovicz, David M. Porter, and Steven R. Shapiro.

   Justice Thomas

announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice Scalia join.

In this case we must decide whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, 384 U. S. 436 (1966), requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements. The Court has previously addressed this question but has not reached a definitive conclusion. See Massachusetts v. White, 439 U. S. 280 (1978) (per curiam) (dividing evenly on the question); see also Patterson v. United States, 485 U. S. 922 (1988) (White, J., dissenting from denial of.certiorari). Although we believe that the Court’s decisions in Oregon v. Elstad, 470 U. S. 298 (1985), and Michigan v. Tucker, 417 U. S. 433 (1974), are instructive, the Courts of Appeals have split on the question after our decision in Dickerson v. United States, 530 U. S. 428 (2000). See, e. g., United States v. Villalba-Alvarado, 345 F. 3d 1007 (CA8 2003) (holding admissible the physical fruits of a Miranda violation); United States v. Sterling, 283 F. 3d 216 (CA4 2002) (same); United States v. DeSumma, 272 F. 3d 176 (CA3 2001) (same); United States v. Faulkingham, 295 F. 3d 85 (CA1 2002) (holding admissible the physical fruits of a negligent Miranda violation). Because the Miranda rule protects against violations of the Self-Incrimination Clause, which, in turn, is not implicated by the introduction at trial of physical evidence resulting from voluntary statements, we answer the question presented in the negative.

I

In June 2001, respondent, Samuel Francis Patane, was arrested for harassing his ex-girlfriend, Linda O’Donnell. He was released on bond, subject to a temporary restraining order that prohibited him from contacting O’Donnell. Respondent apparently violated the restraining order by attempting to telephone O’Donnell. On June 6, 2001, Officer Tracy Fox of the Colorado Springs Police Department began to investigate the matter. On the same day, a county probation officer informed an agent of the Bureau of Alcohol, Tobacco and Firearms (ATF), that respondent, a convicted felon, illegally possessed a .40 Glock pistol. The ATF relayed this information to Detective Josh Benner, who worked closely with the ATF. Together, Detective Benner and Officer Fox proceeded to respondent’s residence.

After reaching the residence and inquiring into respondent’s attempts to contact O’Donnell, Officer Fox arrested respondent for violating the restraining order. Detective Benner attempted to advise respondent of his Miranda rights but got no further than the right to remain silent. At that point, respondent interrupted, asserting that he knew his rights, and neither officer attempted to complete the warning. App. 40.

Detective Benner then asked respondent about the Glock. Respondent was initially reluctant to discuss the matter, stating: ‘T am not sure I should tell you anything about the Glock because I don’t want you to take it away from me.” Id., at 41. Detective Benner persisted, and respondent told him that the pistol was in his bedroom. Respondent then gave Detective Benner permission to retrieve the pistol. Detective Benner found the pistol and seized it.

A grand jury indicted respondent for possession of a firearm by a convicted felon, in violation of 18 U. S. C. § 922(g)(1). The District Court granted respondent’s motion to suppress the firearm, reasoning that the officers lacked probable cause to arrest respondent for violating the restraining order. It therefore declined to rule on respondent’s alternative argument that the gun should be suppressed as the fruit of an unwarned statement.

The Court of Appeals reversed the District Court’s ruling with respect to probable cause but affirmed the suppression order on respondent’s alternative theory. The court rejected the Government’s argument that this Court’s decisions in Elstad, supra, and Tucker, supra, foreclosed application of the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U. S. 471 (1963), to the present context. 304 F. 3d 1013, 1019 (CA10 2002). These holdings were, the Court of Appeals reasoned, based on the view that Miranda announced a prophylactic rule, a position that it found to be incompatible with this Court’s decision in Dickerson, swpra, at 444 (“Miranda announced a constitutional rule that Congress may not supersede legislatively”). The Court of Appeals thus equated Dickerson’s announcement that Miranda is a constitutional rule with the proposition that a failure to warn pursuant to Miranda is itself a violation of the Constitution (and, more particularly, of the suspect’s Fifth Amendment rights). Based on its understanding of Dickerson, the Court of Appeals rejected the post-Dickerson views of the Third and Fourth Circuits that the fruits doctrine does not apply to Miranda violations. 304 F. 3d, at 1023-1027 (discussing United States v. Sterling, 283 F. 3d 216 (CA4 2002), and United States v. DeSumma, 272 F. 3d 176 (CA3 2001)). It also disagreed with the First Circuit’s conclusion that suppression is not generally required in the case of negligent failures to warn, 304 F. 3d, at 1027-1029 (discussing United States v. Faulkingham, 295 F. 3d 85 (CAI 2002)), explaining that “[djeterrence is necessary not merely to deter intentional wrongdoing, but also to ensure that officers diligently (non-negligently) protect — and properly are trained to protect — the constitutional rights of citizens,” 304 F. 3d, at 1028-1029. We granted certiorari. 538 U. S. 976 (2003).

As we explain below, the Miranda rule is a prophylactic employed .to protect against violations of the Self-Incrimination Clause. The Self-Incrimination Clause, however, is not implicated by the admission into evidence of the physical fruit of a- voluntary statement. Accordingly, there is no justification for extending the Miranda rule to this context. And just as the Self-Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule. The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn. For this reason, the exclusionary rule articulated in cases such as Wong Sun does not apply. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings.

II

The Self-Incrimination Clause provides: “No person . . . shall be compelled in any criminal case to be a witness against himself.” U. S. Const., Amdt. 5. We need not decide here the precise boundaries of the Clause’s protection. For present purposes, it suffices to note that the core protection afforded by the Self-Incrimination Clause is a prohibition on compelling a criminal defendant to testify against himself at trial. See, e. g., Chavez v. Martinez, 538 U. S. 760, 764-768 (2003) (plurality opinion); id., at 777-779 (Souter, J., concurring in judgment); 8 J. Wigmore, Evidence § 2263, p. 378 (J. McNaughton rev. ed. 1961) (explaining that the Clause “was directed at the employment of legal process to extract from the person's own lips an admission of guilt, which would thus take the place of other evidence”); see also United States v. Hubbell, 530 U. S. 27, 49-56 (2000) (Thomas, J., concurring) (explaining that the privilege might extend to bar the compelled production of any incriminating evidence, testimonial or otherwise). The Clause cannot be violated by the introduction of nontestimonial evidence obtained as a result of voluntary statements. See, e. g., id., at 34 (noting that the word “ ‘witness’ ” in the Self-Incrimination Clause “limits the relevant category of compelled incriminating communications to those that are ‘testimonial’ in character”); id., at 35 (discussing why compelled blood samples do not violate the Clause; cataloging other examples and citing cases); Elstad, 470 U. S., at 304 (“The Fifth Amendment, of course, is not concerned with nontestimonial evidence”); id., at 306-307 (“The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony”); Withrow v. Williams, 507 U. S. 680, 705 (1993) (O’CONNOR, J., concurring in part and dissenting in part) (describing “true Fifth Amendment claims [as] the extraction and use of compelled testimony”); New York v. Quarles, 467 U. S. 649, 665-672, and n. 4 (1984) (O’CONNOR, J., concurring in judgment in part and dissenting in part) (explaining that the physical fruit of a Miranda violation need not be suppressed for these reasons).

To be sure, the Court has recognized and applied several prophylactic rules designed to protect the core privilege against self-incrimination. See, e. g., Chavez, supra, at 770-772 (plurality opinion). For example, although the text of the Self-Incrimination Clause at least suggests that “its coverage [is limited to] compelled testimony that is used against the defendant in the trial itself,” Hubbell, supra, at 37, potential suspects may, at times, assert the privilege in proceedings in which answers might be used to incriminate them in a subsequent criminal case. See, e. g., United States v. Balsys, 524 U. S. 666, 671-672 (1998); Minnesota v. Murphy, 465 U. S. 420, 426 (1984); cf. Kastigar v. United States, 406 U. S. 441 (1972) (holding that the Government may compel grand jury testimony from witnesses over Fifth Amendment objections if the witnesses receive “use and derivative use immunity”); Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York, 392 U. S. 280, 284 (1968) (allowing the Government to use economic compulsion to secure statements but only if the Government grants appropriate immunity). We have explained that “[t]he natural concern which underlies [these] decisions is that an inability to protect the right at one stage of a proceeding may make its invocation useless at a later stage.” Tucker, 417 U. S., at 440-441.

Similarly, in Miranda, the Court concluded that the possibility of coercion inherent in custodial interrogations unacceptably raises the risk that a suspect’s privilege against self-incrimination might be violated. See Dickerson, 530 U. S., at 434-435; Miranda, 384 U. S., at 467. To protect against this danger, the Miranda rule creates a presumption of coercion, in the absence of specific warnings, that is generally irrebuttable for purposes of the prosecution’s case in chief.

But because these prophylactic rules (including the Miranda rule) necessarily sweep beyond the actual protections of the Self-Incrimination Clause, see, e. g,, Withrow, supra, at 690-691; Elstad, supra, at 306, any further extension of these rules must be justified by its necessity for the protection of the actual right against compelled self-incrimination, Chavez, supra, at 778 (Souter, J., concurring in judgment) (requiring a “ ‘powerful showing’ ” before “expanding] . . . the privilege against compelled self-incrimination”). Indeed, at times the Court has declined to extend Miranda even where it has perceived a need to protect the privilege against self-incrimination. See, e. g., Quarles, supra, at 657 (concluding “that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination”).

It is for these reasons that statements taken without Miranda warnings (though not actually compelled) can be used to impeach a defendant’s testimony at trial, see Elstad, supra, at 307-308; Harris v. New York, 401 U. S. 222 (1971), though the fruits of actually compelled testimony cannot, see New Jersey v. Portash, 440 U. S. 450, 458-459 (1979). More generally, the Miranda rule “does not require that the statements [taken without complying with the rule] and their fruits be discarded as inherently tainted,” Elstad, 470 U. S., at 307. Such a blanket suppression rule could not be justified by reference to the “Fifth Amendment goal of assuring trustworthy evidence” or by any deterrence rationale, id., at 308; see Tucker, supra, at 446-449; Harris, supra, at 225-226, and n. 2, and would therefore fail our close-fit requirement.

Furthermore, the Self-Incrimination Clause contains its own exclusionary rule. It provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” Arndt. 5. Unlike the Fourth Amendment’s bar on unreasonable searches, the Self-Incrimination Clause is self-executing. We have repeatedly explained “that those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.” Chavez, 538 U. S., at 769 (plurality opinion) (citing, for example, Elstad, supra, at 307-308). This explicit textual protection supports a strong presumption against expanding the Miranda rule any further. Cf. Graham v. Connor, 490 U. S. 386 (1989).

Finally, nothing in Dickerson, including its characterization of Miranda as announcing a constitutional rule, 530 U. S., at 444, changes any of these observations. Indeed, in Dickerson, the Court specifically noted that the Court’s “subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming [Miranda]’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.” Id., at 443-444. This description of Miranda, especially the emphasis on the use of “unwarned statements ... in the prosecution’s case in chief,” makes clear our continued focus on the protections of the Self-Incrimination Clause. The Court’s reliance on our Miranda precedents, including both Tucker and Elstad, see, e. g., Dickerson, supra, at 438, 441, further demonstrates the continuing validity of those decisions. In short, nothing in Dickerson calls into question our continued insistence that the closest possible fit be maintained between the Self-Incrimination Clause and any rule designed to protect it.

Ill

Our cases also make clear the related point that a mere failure to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule. So much was evident in many of our pre-Dickerson cases, and we have adhered to this view since Dickerson. See Chavez, 538 U. S., at 772-773 (plurality opinion) (holding that a failure to read Miranda warnings did not violate the respondent’s constitutional rights); 538 U. S., at 789 (Kennedy, J., concurring in part and dissenting in part) (agreeing “that failure to give a Miranda warning does not, without more, establish a completed violation when the unwarned interrogation ensues”); Elstad, supra, at 308; Quarles, 467 U. S., at 654; cf. Chavez, supra, at 777-779 (Souter, J., concurring in judgment). This, of course, follows from the nature of the right protected by the Self-Incrimination Clause, which the Miranda rule, in turn, protects. It is “ ‘a fundamental trial right.’” Withrow, 507 U.S., at 691 (quoting United States v. Verdugo-Urquidez, 494 U. S. 259, 264 (1990)). See also Chavez, 538 U. S., at 766-768 (plurality opinion); id., at 790 (Kennedy, J., concurring in part and dissenting in part) (“The identification of a Miranda violation and its consequences, then, ought to be determined at trial”).

It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda. Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, “[t]he exclusion of unwarned statements ... is a complete and sufficient remedy” for any perceived Miranda violation. Chavez, supra, at 790.

Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the “fruit of the poisonous tree” doctrine of Wong Sun, 371 U. S., at 488. See also Nix v. Williams, 467 U. S. 431, 441 (1984) (discussing the exclusionary rule in the Sixth Amendment context and noting that it applies to “illegally obtained evidence [and] other incriminating evidence derived from [it]” (emphasis added)). It is. not for this Court to impose its preferred police practices on either federal law enforcement officials or their state counterparts.

IV

In the present case, the Court of Appeals, relying on Dickerson, wholly adopted the position that the taking of unwarned statements violates a suspect’s constitutional rights. 304 F. 3d, at 1028-1029. And, of course, if this were so, a strong deterrence-based argument could be made for suppression of the fruits. See, e.g., Nix, supra, at 441-444; Wong Sun, supra, at 484-486; cf. Nardone v. United States, 308 U. S. 338, 341 (1939).

But Dickerson’s characterization of Miranda as a constitutional rule does not lessen the need to maintain the closest possible fit between the Self-Incrimination Clause and any judge-made rule designed to protect it. And there is no such fit here. Introduction of the nontestimonial fruit of a voluntary statement, such as respondent’s Glock, does not' implicate the Self-Incrimination Clause. The admission of such fruit presents no risk that a defendant’s coerced statements (however defined) will be used against him at a criminal trial. In any case, “[t]he exclusion of unwarned statements ... is a complete and sufficient remedy” for any perceived Miranda violation. Chavez, supra, at 790 (Kennedy, J., concurring in part and dissenting in part). See also H. Friendly, Benchmarks 280-281 (1967). There is simply no need to extend (and therefore no justification for extending) the prophylactic rule of Miranda to this context.

Similarly, because police cannot violate the Self-Incrimination Clause by taking unwarned though voluntary statements, an exclusionary rule cannot be justified by reference to a deterrence effect on law enforcement, as the Court of Appeals believed, 304 F. 3d, at 1028-1029. Our decision not to apply Wong Sun to mere failures to give Miranda warnings was sound at the time Tucker and Elstad were decided, and we decline to apply Wong Sun to such failures now.

The Court of Appeals ascribed significance to the fact that, in this case, there might be “little [practical] difference between [respondent’s] confessional statement” and the actual physical evidence. 304 F. 3d, at 1027. The distinction, the court said, “appears to make little sense as a matter of policy.” Ibid. But, putting policy aside, we have held that “[t]he word ‘witness’ in the constitutional text limits the” scope of the Self-Incrimination Clause to testimonial evidence. Hubbell, 530 U. S., at 34-35. The Constitution itself makes the distinction. And although it is true that the Court requires the exclusion of the physical fruit of actually coerced statements, it must be remembered that statements taken without sufficient Miranda warnings are presumed to have been coerced only for certain purposes and then only when necessary to protect the privilege against self-incrimination. See Part II, supra. For the reasons discussed above, we decline to extend that presumption further.

Accordingly, we reverse the judgment of the Court of Ap: peals and remand the case for further-proceedings.

It is so ordered.

Justice Kennedy,

with whom Justice O’Connor joins, concurring in the judgment.

In Oregon v. Elstad, 470 U. S. 298 (1985), New York v. Quarles, 467 U. S. 649 (1984), and Harris v. New York, 401 U. S. 222 (1971), evidence obtained following an unwarned interrogation was held admissible. This result was based in large part on our recognition that the concerns underlying the Miranda v. Arizona, 384 U. S. 436 (1966), rule must be accommodated to other objectives of the criminal justice system. I agree with the plurality that Dickerson v. United States, 530 U. S. 428 (2000), did not undermine these precedents and, in fact, cited them in support. Here, it is sufficient to note that the Government presents an even stronger case for admitting the evidence obtained as the result of Pa-tane’s unwarned statement. Admission of nontestimonial physical fruits (the Glock in this case), even more so than the postwarning statements to the police in Elstad and Michigan v. Tucker, 417 U. S. 433 (1974), does not run the risk of admitting into trial an accused’s coerced incriminating statements against himself. In light of the important probative value of reliable physical evidence, it is doubtful that exclusion can be justified by a deterrence rationale sensitive to both law enforcement interests and a suspect’s rights during an in-custody interrogation. Unlike the plurality, however, I find it unnecessary to decide whether the detective’s failure to give Patane the full Miranda warnings should be characterized as a violation of the Miranda rule itself, or whether there is “[anything to deter” so long as the unwarned statements are not later introduced at trial. Ante, at 641-642.

With these observations, I concur in the judgment of the Court.

Justice Souter,

with whom Justice Stevens and Justice Ginsburg join, dissenting.

The plurality repeatedly says that the Fifth Amendment does not address the admissibility of nontestimonial evidence, an overstatement that is beside the point. The issue actually presented today is whether courts should apply the fruit of the poisonous tree doctrine lest we create an incentive for the police to omit Miranda warnings, see Miranda v. Arizona, 384 U. S. 436 (1966), before custodial interrogation. In closing their eyes to the consequences of giving an eviden-tiary advantage to those who ignore Miranda, the plurality adds an important inducement for interrogators to ignore the rule in that case.

Miranda rested on insight into the inherently coercive character of custodial interrogation and the inherently difficult exercise of assessing the voluntariness of any confession resulting from it. Unless the police give the prescribed warnings meant to counter the coercive atmosphere, a custodial confession is inadmissible, there being no need for the previous time-consuming and difficult enquiry into voluntariness. That inducement to forestall involuntary statements and troublesome issues of fact can only atrophy if we turn around and recognize an evidentiary benefit when an unwarned statement leads investigators to tangible evidence. There is, of course, a price for excluding evidence, but the Fifth Amendment is worth a price, and in the absence of a very good reason, the logic of Miranda should be followed: a Miranda violation raises a presumption of coercion, Oregon v. Elstad, 470 U. S. 298, 306-307, and n. 1 (1985), and the Fifth Amendment privilege against compelled self-incrimination extends to the exclusion of derivative evidence, see United States v. Hubbell, 530 U. S. 27, 37-38 (2000) (recognizing “the Fifth Amendment’s protection against the prosecutor’s use of incriminating information derived directly or indirectly from ... [actually] compelled testimony”); Kastigar v. United States, 406 U. S. 441, 453 (1972); That should be the end of this case.

The fact that the books contain some exceptions to the Miranda exclusionary rule carries no weight here. In Harris v. New York, 401 U. S. 222 (1971), it was respect for the integrity of the judicial process that justified the admission of unwarned statements as impeachment evidence. But Pa-tane’s suppression motion can hardly be described as seeking to “perver[t]” Miranda “into a license to use perjury” or otherwise handicap the “traditional truth-testing devices of the adversary process.” 401 U. S., at 225-226. Nor is there any suggestion that the officers’ failure to warn Patane was justified or mitigated by a public emergency or other exigent circumstance, as in New York v. Quarles, 467 U. S. 649 (1984). And of course the premise of Oregon v. Elstad, supra, is not on point; although a failure to give Miranda warnings before one individual statement does not necessarily bar the admission of a subsequent statement given after adequate warnings, 470 U. S. 298; cf. Missouri v. Seibert, ante, at 614-615 (plurality opinion), that rule obviously does not apply to. physical evidence seized once and for all.

There is no way to read this case except as an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained. The incentive is an odd one, coming from the Court on the same day it decides Missouri v. Seibert, ante, p. 600. I respectfully dissent.

Justice Breyer,

dissenting.

For reasons similar to those set forth in Justice Souter’s dissent and in my concurring opinion in Missouri v. Seibert, ante, at 617, I would extend to this context the “fruit of the poisonous tree” approach, which I believe the Court has come close to adopting in Seibert. Under that approach, courts would exclude physical evidence derived from unwarned questioning unless the failure to provide Miranda v. Arizona, 384 U. S. 436 (1966), warnings was in good faith. See Seibert, ante, at 617-618 (Breyer, J., concurring); cf. ante, at 645-646, n. 1 (Souter, J., dissenting). Because the courts below made no explicit finding as to good or bad faith, I would remand for such a determination.

       The Government concedes that respondent’s answers to subsequent on-the-scene questioning are inadmissible at trial under Miranda v. Arizona, 384 U. S. 436 (1966), despite the partial warning and respondent’s assertions that he knew his rights.

       The Court of Appeals also distinguished Oregon v. Elstad, 470 U. S. 298 (1985), on the ground that the second (and warned) confession at issue there was the product of the defendant’s volition. 304 F. 3d, at 1019, 1021. For the reasons discussed below, we do not find this distinction relevant.

       We acknowledge that there is language in some of the Court’s post-Miranda decisions that might suggest that the Miranda rule operates as a direct constraint on police. See, e. g., Stansbury v. California, 511 U. S. 318, 322 (1994) (per curiam); Moran v. Burbine, 475 U. S. 412, 420 (1986) (stating that “Miranda imposed on the police an obligation to follow certain procedures”); cf. Edwards v. Arizona, 451 U. S. 477, 485 (1981). But Miranda itself made clear that its focus was the admissibility of statements, see, e. g,, 384 U. S., at 439, 467, a view the Court reaffirmed in Dickerson v. United States, 530 U. S. 428, 443-444 (2000) (equating the Miranda rule with the proposition that “unwarned statements may not be used as evidence in the prosecution’s case in chief” (emphasis added)).

       We reject respondent’s invitation to apply the balancing test of Nardone v. United States, 308 U. S. 338 (1939). Brief for Respondent 15-33. At issue in Nardone was the violation of a federal wiretap statute, and the Court employed an exclusionary rule to deter those violations. But, once again, there are no violations (statutory or constitutional) to deter here.

       It is worth mentioning that the Court of Appeals did not have' the benefit of our decision in Chavez v. Martinez, 538 U. S. 760 (2003).

       While Fourth Amendment protections extend to “persons, houses, papers, and effects,” the Self-Incrimination Clause prohibits only compelling a defendant to be “a witness against himself,” Arndt. 5.

       It is not clear whether the Government could have used legal processes actually to compel respondent to produce the Glock, though there is a reasonable argument that it could have. See, e. g., United States v. Hubbell, 530 U. S. 27, 42-45 (2000); Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549, 554-556 (1990); Fisher v. United States, 425 U. S. 391 (1976); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 302-303 (1967); Schmerber v. California, 384 U. S. 757, 761 (1966). But see Commonwealth v. Hughes, 380 Mass. 583, 404 N. E. 2d 1239 (1980); Goldsmith v. Superior Court, 152 Cal. App. 3d 76, 199 Cal. Rptr. 366 (1984). In light-of this, it would be especially odd to exclude the Glock here.

       In so saying, we are taking the legal issue as it comes to us, even though the facts give off the scent of a made-up case. If there was a Miranda failure, the most immediate reason was that Patane told the police to stop giving the warnings because he already knew his rights. There could easily be an analogy in this case to the bumbling mistake the police committed in Oregon v. Elstad, 470 U. S. 298 (1985). See Missouri v. Seibert, ante, at 614-615 (plurality opinion).

       To the extent that Michigan v. Tucker, 417 U. S. 433 (1974) (admitting the testimony of a witness who was discovered because of an unwarned custodial interrogation), created another exception to Miranda, it is off the point here. In Tucker, we explicitly declined to lay down a broad rule about the fruits of unwarned statements. Instead, we “place[d] our holding on a narrower ground,” relying principally on the fact that the interrogation occurred before Miranda was decided and was conducted in good faith according to constitutional standards governing at that time. 417 U. S., at 447-448 (citing Escobedo v. Illinois, 378 U. S. 478 (1964)).


author: Per Curiam.

text:
    HOLLAND, WARDEN v. JACKSON
    No. 03-1200.
    Decided June 28, 2004
   Per Curiam.

I

Respondent Jessie Jackson was tried in 1987 by the State of Tennessee for the murder of James Crawley. The State asserted that he had shot Crawley after an argument over drugs. Its principal evidence at trial was the eyewitness testimony of Jonathan Hughes, who claimed to have been at the scene with his girlfriend Melissa Gooch when the shooting occurred. Gooch did not testify. The jury convicted, and respondent was sentenced to life imprisonment.

After unsuccessfully moving for a new trial, respondent sought state postconviction relief, alleging, inter alia, that his trial counsel had been ineffective in failing to conduct an adequate investigation. See Strickland v. Washington, 466 U. S. 668 (1984). The state court held an evidentiary hearing and then denied the petition, finding that counsel’s performance was not deficient and that, in any event, respondent suffered no prejudice. Respondent then filed a “Motion for Hearing in Nature of Motion for New Trial,” alleging newly discovered evidence. He claimed for the first time — seven years after his conviction — that Gooch would now testify that, contrary to Hughes’ trial testimony, she was not with Hughes on the night of the shooting. The state court denied this motion, and respondent appealed both rulings to the Tennessee Court of Criminal Appeals.

That court affirmed. It upheld the denial of new trial, observing that respondent had already filed an earlier such motion, that there was “no satisfactory reason given for the defendant’s failure to locate this witness” during the seven years that had elapsed, and that the. proposed testimony “would serve merely to impeach Hughes’ memory about having seen [Gooch] that night.” App. to Pet. for Cert. 88. It also affirmed the denial of postconviction relief, noting that there had never “been any showing on the record of favorable testimony that would have been elicited” from Gooch had counsel interviewed her, and that even crediting respondent’s “unsubstantiated pleading,” “it in no way rises to the level of contradicting what Hughes claims to have seen” respecting the shooting itself. Id., at 96-97 (emphasis added).

Respondent then sought federal habeas relief, and the District Court granted the State’s motion for summary judgment. It found that there had been ineffective assistance of counsel, noting several shortcomings and opining that there was a reasonable. probability of prejudice. It observed, however, that it could grant relief only if the state court’s adjudication of respondent’s claim was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. § 2254(d)(1). It concluded that the state court’s application of Strickland, while erroneous, was not unreasonable.

The Sixth Circuit reversed. 80 Fed. Appx. 392 (2003). Although it found a number of flaws in counsel’s performance, its grant of relief under § 2254(d)(1) was based on only two specific grounds: first, that the state court had unreasonably applied Strickland, given that Gooch’s statement undermined the credibility of Hughes’ testimony; and second, that the state court’s opinion was contrary to Strickland because it assessed prejudice under a preponderance-of-the-evidenee standard rather than a reasonable-probability standard.

We now grant the State’s petition for a writ of certiorari and respondent’s motion for leave to proceed informa pau-peris, and reverse.

II

A

The Sixth Circuit erred in finding the state court’s application of Strickland unreasonable on the basis of evidence not properly before the state court. Although the state court had ventured that it would deny relief on the merits even taking Gooch’s statement into account, its judgment also rested on the holding that the statement was not properly before it. See App. to Pet. for Cert. 86-89, 95-98. Granting relief in disregard of this independent basis for decision was error.

The “unreasonable application” clause of § 2254(d)(1) applies when the “state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams v. Taylor, 529 U. S. 362, 413 (2000). In this and related contexts we have made clear that whether a state court’s decision was unreasonable must be assessed in light of the record the court had before it. See Yarborough v. Gentry, 540 U. S. 1, 6 (2003) (per curiam) (denying relief where state court’s application of federal law was “supported by the record”); Miller-El v. Cockrell, 537 U. S. 322, 348 (2003) (reasonableness of state court’s factual finding assessed “in light of the record before the court”); cf. Bell v. Cone, 535 U. S. 685, 697, n. 4 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law).

Under the habeas statute, Gooch’s statement could have been the subject of an evidentiary hearing by the District Court, but only if respondent was not at fault in failing to develop that evidence in state court, or (if he was at fault) if the conditions prescribed by § 2254(e)(2) were met. See Williams v. Taylor, 529 U. S. 420, 431-437 (2000). Those same restrictions apply a fortiori when a prisoner seeks relief based on new evidence without an evidentiary hearing. See, e. g., Cargle v. Mullin, 317 F. 3d 1196, 1209 (CA10 2003), and cases cited. Where new evidence is admitted, some Courts of Appeals have conducted de novo review on the theory that there is no relevant state-court determination to which one could defer. See, e. g., Monroe v. Angelone, 323 F. 3d 286, 297-299, and n. 19 (CA4 2003). Assuming, arguendo, that this analysis is correct and that it applies where, as here, the evidencé does not support a new claim but merely buttresses a previously rejected one, it cannot support the Sixth Circuit’s action.

The District Court made no finding that respondent had been diligent in pursuing Gooch’s testimony (and thus that § 2254(e)(2) was inapplicable) or that the limitations set forth in § 2254(e)(2) were met. Nor did the Sixth Circuit independently inquire into these matters; it simply ignored entirely the state court’s independent ground for its decision, that Gooch’s statement was not properly before it. It is difficult to see, moreover, how respondent could claim due diligence given the 7-year delay. He complains that his state postconviction counsel did not heed his pleas for assistance. See App. to Pet. for Cert. 65. Attorney negligence, however, is chargeable to the client and precludes, relief unless the conditions of § 2254(e)(2) are satisfied. See Williams, supra, at 439-440; cf. Coleman v. Thompson, 501 U. S. 722, 753-754 (1991).

The Sixth Circuit therefore erred in finding the state court’s decision an unreasonable application of Strickland.

B

The Sixth Circuit also erred in holding that the state court acted contrary to federal law by requiring proof of prejudice by a preponderance of the evidence rather than by a reasonable probability. The state court began by reciting the cor-' rect Strickland standard:

“‘[T]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’” App. to Pet. for Cert. 95 (quoting Strickland, 466 U. S., at 694).

The Sixth Circuit nevertheless concluded that the state court had actually applied a preponderance standard, based on three subsequent passages from its opinion.

First was the statement that “[i]n a post-conviction proceeding, the defendant has the burden of proving his allegations by a preponderance of the evidence.” App. to Pet. for Cert. 95. In context, however, this statement is reasonably read as addressing the general burden of proof in postconviction proceedings with regard to factual contentions — for example, those relating to whether defense counsel’s performance was deficient. Although it is possible to read it as referring also to the question whether the deficiency was prejudicial, thereby supplanting Strickland!, such a reading would needlessly create internal inconsistency in the opinion.

Second was the statement that “it is asking too much that we draw the inference that the jury would not have believed Hughes at all had Melissa Gooch testified.” App. to Pet. for Cert. 96. Although the Court of Appeals evidently thought that this passage intimated a preponderance standard, it is difficult to see why. The quoted language does not imply any particular standard of probability.

Last was the statement that respondent had “failed to carry his burden -of proving that the outcome of the trial would probably have been different but for those errors.” Id., at 98. We have held that such use of the unadorned word “probably” is permissible shorthand when the complete Strickland standard is elsewhere recited. See Woodford v. Visciotti, 537 U. S. 19, 23-24 (2002) (per curiam).

As we explained in Visciotti, § 2254(d) requires that “state-court decisions be given the benefit of the doubt.” Id., at 24. “[R]eadiness to attribute error is inconsistent with the presumption that state courts know and follow the law.” Ibid. The Sixth Circuit ignored those prescriptions.

* * *

The judgment of the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Stevens, Justice Souter, Justice Ginsburg, and Justice Breyer would deny the petition for a writ of certiorari.

       We reject respondent’s contention that the State failed adequately to preserve this error. See, e. g., Final Brief for Appellee in No. 01-5720 (CA6), p. 18, and n. 3.