If You Don’t Have Miranda or Misconduct, Think About McNabb and Mallory

November 13, 2012
By Hanging Out with Carl Gunn


  • Think about the McNabbMallory rule in addition to Mirandaand voluntariness.
  • The McNabbMallory rule requires suppression of statements obtained after any delay of more than six hours in bringing the defendant to court after arrest, unless the government shows the delay is reasonable.
  • Prior Ninth Circuit law suggesting suppression for violation of the rule is discretionary is no longer good law; the Supreme Court’s 2009 decision in Corley v. United States, 556 U.S. 303 (2009) makes suppression mandatory.


What’s the first thing you think about when you see a confession in your discovery? . . . As I write this, I’m imagining all sorts of gallows humor being muttered in response, but the answers I’m thinking about for purposes of this post are the serious ones that hopefully first come to your mind. One would be Miranda. The other would be voluntariness. These are two of the first things a defense attorney ought to consider when thinking about how to deal with a client’s confession – or any other problematic statement. Did the officers who questioned your client comply with Miranda? And was your client’s statement voluntary? Note that the second matters even if you win on the first because a court finding that a statement was involuntary has two benefits that a finding of a Miranda violation doesn’t: (1) Fruits (and actually even more; see a post on that coming up in the next couple of weeks or so) are suppressed in addition to the statement itself if it was involuntary, which isn’t true if there was merely a Miranda violation, compare Kastigar v. United States, 406 U.S. 441 (1972) with United States v. Patane, 542 U.S. 630 (2004); and (2) involuntary statements can’t be used to impeach your client if he or she testifies, while statements that are simply obtained in violation of Miranda can be used to impeach, compare New Jersey v. Portash, 438 U.S. 450 (1979)with Harris v. New York, 401 U.S. 222 (1971).

But what this post is about is a third issue you should think about when you see a confession or problematic statement in your discovery – one that may not come to mind as quickly as the other two. That’s a rule that arises out of two cases that are even older than MirandaMcNabb v. United States, 318 U.S. 332 (1943) and Mallory v. United States, 354 U.S. 449 (1957). Together these cases formed the basis for what came to be known as the McNabbMallory rule, which is a supervisory rule the Supreme Court created for cases in federal court. That rule required suppression of a confession – regardless of voluntariness – if there was any unreasonable delay in taking an arrestee to court for the initial appearance required by Rule 5 of the Federal Rules of Criminal Procedure, referred to in the later cases discussed below as “presentment.” The confession was to be suppressed regardless of voluntariness and regardless ofMiranda, though Miranda didn’t exist at the time McNabb andMallory were decided.

The rule was thrown into some doubt in 1968 when Congress passed the “Omnibus Crime Control and Safe Streets Act of 1968.” As part of Congress’s reaction to that horrible Warren Court’s effort to protect our civil liberties, it enacted a statute – codified at 18 U.S.C. § 3501 – which purported to, among other things, overrule Miranda, see 18 U.S.C. § 3501(a) (decreeing that any confession found to be given voluntarily shall be admissible). This was actually more of an embarrassment for Congress than a realistic threat to the Fifth Amendment; indeed, the idea that Congress could override the constitutional protection of Miranda with a statute was viewed as so far-fetched that no DOJ administration ever argued it and even the Rehnquist court eventually confirmed that Miranda survived as a constitutionally based protection, see Dickerson v. United States, 530 U.S. 428 (2000).

Section 3501 created a more realistic threat to the McNabbMallory rule, however. The McNabbMallory rule, as a non-constitutional rule arising out of the federal courts’ supervisory power over procedure in federal courts, could be overridden by Congress in a statute. And subsection (a), which flatly decrees that “a confession . . . shall be admissible in evidence if it is voluntarily given” would seem to override the McNabbMalloryrule, at least if read by itself.

But the legislative history – which is discussed at length inCorley v. United States, 556 U.S. 303 (2009), see id. at 317-20, and at even greater length in the defendant’s briefs in that case,see 2008 WL 4992685, at *38-56, and the defendant’s briefs in the earlier case of United States v. Alvarez-Sanchez, 511 U.S. 350 (1994), see 1993 WL 655049, at *9-15, in which the issue was briefed but not decided – suggests that subsection (a) was aimed at Miranda (unsuccessfully, as noted above) and it was another subsection – subsection (c) – that was aimed atMcNabbMallory. And subsection (c) provides that confessions “shall not be inadmissible solely because of delay in bringing the person before a magistrate judge” only “if such confession was made or given by such person within six hours immediately following his arrest or other detention” or such additional delay as “is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled.” 18 U.S.C. § 3501(c). This suggests that the statute simply limited the McNabb-Mallory rule by creating a six-hour “safe harbor” and left the rule intact – i.e., continued to allow suppression “solely because of delay” – when there was delay exceeding six hours that was not otherwise reasonable. This is also consistent with the legislative history discussed in the opinion and in the briefs. The original bill provided that confessions “shall not be inadmissible solely because of delay” without the “if such confession was made or given . . . within six hours” clause, and the latter clause was added as a compromise amendment. See Corley, 556 U.S. at 318-19.

Still, there is some tension between the plain language of subsection (a) and subsection (c). And the courts of appeals were split on the question until the Supreme Court decidedCorley three years ago. Several circuits gave controlling weight to the plain language of subsection (a) and held that section 3501 eliminated the McNabb-Mallory rule completely, while others, including the Ninth Circuit, read the statute as retaining the rule, albeit with the six-hour “safe harbor” added by subsection (c). See Corley, 556 U.S. at 313 (citing cases on different sides of split); see also United States v. Alvarez-Sanchez, 975 F.2d 1396, 1402-03 (9th Cir. 1992) (discussing rule in Ninth Circuit), rev’d on other grounds, 511 U.S. 350 (1994). The Supreme Court finally granted cert to resolve the split and sided with the Ninth Circuit and other circuits that had construed section 3501 as preserving the rule, subject to the addition of the six-hour “safe harbor.”

Better yet, the Court went farther than the Ninth Circuit in one respect. The rule in the Ninth Circuit prior to Corley – at least under one line of cases – was that section 3501(c) did notmandate suppression for unreasonable delay beyond the six-hour safe harbor but made it discretionary, with the decision of whether to suppress to turn at least in part on public policy considerations. See United States v. Van Poyck, 77 F.3d 285, 288-89 (9th Cir. 1996) and cases cited therein. See also United States v. Mitchell, 502 F.3d 931, 1002 (9th Cir. 2007) (Reinhardt, J., dissenting). But Corley makes clear that suppression is mandatory if there is unreasonable delay beyond the six-hour safe harbor, stating: “If the confession occurred before presentment and beyond six hours, . . . the court must decide whether delaying that long was unreasonable or unnecessary under the McNabbMallory cases, and if it was, the confession is to be suppressed.” Corley, 556 U.S. at 322 (emphasis added). See also United States v. Valenzuela-Espinoza, No. 10-10060, 2012 WL 4703479, at *5 (Oct. 4, 2012) (quoting Corley).

So Corley actually strengthened the McNabb-Mallory rule in the Ninth Circuit. Keep both the rule and this mandatory remedy in mind as a third consideration in evaluating the admissibility of confessions and those other problematic statements your clients may have made.

And oh yes, for any potential clients reading this blog, don’t make those statements in the first place. Just keep your mouth shut until you talk to a lawyer. No matter what the cops suggest about the benefits of talking first.