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McNabb Lives! (more or less)

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Today, the U.S. Supreme Court dove once again into Congress's clumsy, problematic 1968 response to the Miranda decision, 18 U.S.C. ยง 3501.

Subdivisions (a) and (b) of that section were intended to simply abrogate Miranda. Even though the decision itself says that Congress could prescribe a different rule if that rule addressed the underlying problem, 384 U.S., at 467, Congress opted for the meat-axe approach. Subdivision (a) of the statute simply says that "a confession ... shall be admissible in evidence if voluntarily given." The statute lay dormant for years, leaving undecided the question of whether Miranda was a rule of constitutional law above the power of Congress to change or some lower level that Congress could change. That question was finally resolved in the Dickerson case in 2000.

A much older rule is the rule of McNabb v. United States, 318 U.S. 332 (1943), excluding confessions for a violation of the prompt presentment requirement. Because the underlying requirement is not constitutional, there is little doubt that Congress can have its way with this rule. Subdivision (c), read alone, appears to modify but not abrogate this rule, even though subdivision (a) would seem to wipe it out. So, do the courts apply subdivision (a) as it reads, making (c) pointless and superfluous, or do they say that (a) does not really mean what it so plainly says? That's a tough one. Bad(ly drafted) laws make hard cases. The Court split 5-4 for the former interpretation today in Corley v. United States.

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Souter piled on at the end. It's pretty easy to make the case that clause (a) was directed at Miranda and clause (c) at McNabb-Mallory. And he could have left it at that. Instead, he talks about 20th Century dictatorships and false confessions (cf. Kansas v. Marsh (Stevens, J., dissenting) (possibility of false convictions used to justify heightened scrutiny of constitutionality of death statute). Even if Corley had gone the other way, the 72 hour rule, which is of constitutional dimension, would have kicked in. Moreover, hasn't the Supreme Court maligned any state practice which is more favorable to the government than McNabb-Mallory?

Corley also had an interesting comment about a winning party raising an issue at the Supreme Court. Souter's opinion states flatly that the Supreme Court can ignore an issue not raised below by the winning party. Usually, winning parties below are entitled to argue alternative grounds in holding onto their judgment (after all, the Court reviews judgments, not opinions).

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