By Norman Abrams* –
4 Harv. Nat’l Sec. J. 58 (2012)
This Article examines a series of special constitutional evidence rules that can be used in criminal enforcement against terrorists. Some of these rules already expressly apply to terrorism cases, others contain an exigent circumstance element that can and, it is recommended, should be adapted to terrorism contexts. Finally, building on both of these sets of special rules, it is proposed that a similar new exception should be applied to coerced confession rules. Specifically, in Part I, four existing “exceptions” to constitutional rules of evidentiary admissibility are examined—relating to Fourth Amendment privacy protections, compulsory process, confrontation, and Miranda. The first two of these exceptions were originally formulated in the context of terrorism investigations; the second two were developed in situations involving exigent circumstance and public safety concerns. This Article endorses the extension to terrorism investigations of the public safety exception to the requirement of Miranda warnings. (Along the same lines, recently-made-public FBI guidelines have adapted this exception for use in interrogating suspected terrorists.) It is also proposed that the public safety exception—dealing with confrontation issues—should be extended to terrorism investigations.
Part II, building on the described existing and proposed terrorism investigation exceptions, makes the case for the creation of a new exception relating to a fifth constitutional admissibility doctrine, one involving a hallowed area of constitutional criminal procedure—coerced confessions. A cabined exception is proposed that would, in exigent circumstances and to gather intelligence relevant to terrorism prevention, allow government agents to utilize non-extreme police interrogation methods, the use of which, under existing Supreme Court precedents, might otherwise have been ruled to violate the Constitution.
* Distinguished Professor of Law Emeritus, UCLA Law School.