Oral Argument Recap: Corley v. US
Stanford student Daniel Matro discusses last Wednesday’s oral argument in Corley v. US (07-10441).
On Wednesday, the Court debated the fate of the McNabb-Mallory rule in light of Congress's 1968 enactment of 18 U.S.C. § 3501 and the Court's Miranda jurisprudence. The Court grappled, as the briefs did, with how to read § 3501(a) and § 3501(c) together: the former seems to make voluntariness the sole non-constitutional criterion for admissibility of confessions in federal prosecutions, while the latter arguably suggests that even voluntary confessions might be excluded if made more than six hours after arrest and the delay was unreasonable.
Assistant Federal Defender David McColgin, arguing for petitioner Corley, sought to convince the Court that § 3501(c) carves out a six-hour safe harbor from the existing McNabb-Mallory rule and leaves the rule otherwise intact. Congress, he argued, "structured the statute on the foundation of McNabb-Mallory," and therefore the "time limitation" provision in § 3501(c) must be read as a signal of Congress's intent to limit, not eliminate the rule. Justice Alito pointed out that there is a difference in saying that § 3501(c) codified the supervisory rule adopted by the Court in McNabb-Mallory and saying that it created an exception to this rule to the extent that the rule remains in place. Justice Kennedy completed the thought, suggesting the possibility that § 3501(c) creates a six-hour safe harbor, but beyond that safe harbor leaves the Court "free to reexamine its supervisory rule in light of what Congress has provided in (a) and (b) of the statute." It is "a little bit odd," he said, to think that Congress would build a statute around a supervisory rule while taking away the Court's authority to reconsider the supervisory rule.
In response, McColgin argued that, even if the Court has the authority to reconsider the rule, it should respect Congress's choice in 1968 to leave McNabb-Mallory protection in place for confessions made outside the six-hour safe harbor. Picking up on arguments raised by the government in its brief, the Chief Justice and Justices Alito and Scalia proceeded to question whether the text of § 3501 in fact supported that interpretation of what Congress did: Couldn't § 3501(c) simply be read as a voluntariness safe harbor? Even if this requires some rewriting of the text, doesn't petitioner's interpretation require reading § 3501(a) to mean something different from what it says? Outside the safe harbor, wouldn't the normal voluntariness analysis apply, under which multiple factors, including delay, are considered? The ensuing discussion replayed the arguments in the briefs, with each side pointing out the textual obstacles to the other's reading.
Justice Kennedy then shifted the discussion to focus on the purpose behind McNabb-Mallory's exclusionary remedy, and in particular, whether the suppression of a voluntary confession is a necessary or appropriate mechanism for enforcing the right to prompt presentment. If the confession is voluntary, he asked, isn't suppression a "wholly unrelated remedy"? McColgin responded by emphasizing the inherent coercive pressures that stem from a delay in presentment, and the need for a prophylactic rule that creates an incentive to promptly present. Responding to Justice Stevens's apparently friendly question whether any other remedy would enforce the interest in prompt presentment, McColgin answered that without McNabb-Mallory, "this becomes an empty right."
Arguing for respondent United States, Deputy Solicitor General Michael Dreeben began by emphasizing that the Court developed the McNabb-Mallory rule prior to Miranda, when there was no constitutional law requiring that suspects be advised of their rights. The rule ensured that suspects would be brought promptly before a magistrate to be advised of those rights. Justice Stevens countered that McNabb was also designed to safeguard the right to prompt presentment itself, and that the incentive it provided government to respect that right was no less necessary today than back then. In response to Justice Scalia's suggestion that the police would still want to avoid any delay that would lead a Court to deem a confession involuntary, Justice Stevens disagreed, arguing that under that scheme police "have everything to gain and nothing to lose by continuing to interrogate."
Dreeben turned to the text of § 3501, which in his view carves out a six-hour safe harbor during which delay alone can never be the basis for suppressing a confession, but leaves admissibility outside that time period to be determined by other sources of law. Those sources, he suggested, do not include the non-constitutional McNabb-Mallory rule, but instead § 3501(a) and Federal Rule of Evidence 402, which supersede the rule and eliminate it. Responding to questioning from Justices Stevens and Breyer, Dreeben conceded that his interpretation of § 3501 rendered § 3501(c) largely superfluous, and that nothing in the legislative history reflects Congress's intent for § 3501(a) to overrule McNabb-Mallory. Dreeben went on to argue that, even if McNabb-Mallory survived § 3501, it was overridden in 1975 by Federal Rule of Evidence 402, which provides that only four sources of law may serve as the basis for excluding relevant evidence: the Constitution, an act of Congress, a rule of evidence, or other rules prescribed by the Supreme Court pursuant to statutory authority. After Rule 402, he asserted, relevant evidence may no longer be excluded on the basis of rules developed by the Court in its supervisory capacity. Answering Justice Ginsburg's observation that Rule 5 of the Federal Rules of Criminal Procedure prohibits unnecessary delay, Dreeben noted that the rule does not prescribe an enforcement mechanism.
Dreeben closed with a return to his opening theme, characterizing the McNabb-Mallory rule as the product of a supervisory decision made in an entirely different legal climate. In light of the Court's Miranda jurisprudence and subsequent legislation, any benefits of using the McNabb-Mallory rule to enforce a prompt presentment requirement do not justify the costs of excluding probative, voluntary confessions.
In a brief rebuttal, McColgin sought to refute the claim that Rule 402 overturned McNabb-Mallory. First, he noted, the Advisory Committee Notes expressly state that Rule 402 does not abrogate the McNabb-Mallory rule. Second, the citation in the Committee Notes to § 3501(c) indicates that the McNabb-Mallory rule was viewed as having a statutory basis. McColgin also insisted that the Court's Miranda jurisprudence in no way diminishes the importance of the McNabb-Mallory rule, without which there would be nothing to stop law enforcement from delaying presentment for the purpose of obtaining confessions.