MINNESOTA v. MURPHY
Legal provision: Self-Incrimination
ORAL ARGUMENT OF ROBERT H. LYNN, ESQ., ON BEHALF OF THE PETITIONER
Chief Justice Warren E. Burger: We'll hear arguments next in Minnesota against Murphy.
Mr. Lynn, I think you may proceed whenever you are ready.
Robert H. Lynn: Mr. Chief Justice, and may it please the Court:
The issue presented in this case is does the Fifth Amendment to the United States Constitution require suppression of incriminating admissions to a rape murder made by an out of custody probationer to his probation officer because that probation officer did not first warn the probationer of his right not to incriminate himself.
The Minnesota Supreme Court in a divided opinion held solely as a matter of federal constitutional law that the Fifth Amendment required suppression of these admissions despite the fact that Respondent did not claim the privilege at the time the questions were asked.
Instead, the Minnesota Supreme Court relied upon factors this Court has expressly rejected in at least three cases those being the Beckwith, Mathiason and Bayhiller cases.
A state court may not impose greater restrictions as a matter of federal constitutional law where this Court specifically refrains from doing so.
An understanding of the legal issues in this case requires an understanding of the facts, and I would like to briefly summarize those for the Court.
October 1974 a seventeen-year-old woman is raped and strangled in Minneapolis.
Marshall Murphy, the Respondent in this case, was a suspect, was interviewed at that time but was never arrested and was never indicted.
September 1980 Respondent was placed on probation for the crime of false imprisonment after a plea of guilty in that matter.
The conditions of his probation included the normal ones, that he report to his probation officer as directed, that he be truthful to his probation officer in all matters, that he keep his probation officer informed of what he is doing.
There was also a specific condition of his probation that he attend a treatment program for sexual offenders known as Alpha House.
His probation officer assigned was a woman named Mara Widseth.
For the following year probationer, Respondent in this case, and the probation officer met on a monthly basis at the probation officer's office at times usually selected by Respondent.
In July of 1981 Respondent left the treatment program.
He was called into his probation officer's office.
They discussed the matter and she decided to allow him to continue on probation despite the fact he was no longer in the sexual offender treatment because she felt he was doing well in other areas.
Then September 22, 1981 the probation officer learned from a counselor at the Alpha House treatment program that Respondent had while in treatment at that program made admissions or told people that he had once committed a murder several years before.
When the probation officer learned that information, of course, she did not know whether that was true or false simply that those words apparently were said.
She did not go to the police to learn if any such case existed.
She made no contact with any other authorities.
She did after talking with her supervisor decide that she should relay this information she had learned to the police and she also decided she should inform the Respondent probationer of her decision.
So on the 24th of September she sent him a letter requesting that he come into her office to discuss further treatment.
She was concerned at that time--
Unidentified Justice: Mr. Lynn, may I ask you a question right there?
Robert H. Lynn: --Yes, sir.
Unidentified Justice: At that point in the development of events could she have lawfully told the police without first talking to the probationer?
Robert H. Lynn: There is a problem there, Your Honor, unrelated to the facts here.
That problem has to do with the confidentiality of the Alpha House treatment program.
That information was lawfully transmitted to her.
Unidentified Justice: For what purpose?
Robert H. Lynn: For the purpose of monitoring his probation.
Unidentified Justice: Was the Alpha House not under a restriction which would have prevented it from giving information to the police?
Robert H. Lynn: It was, Your Honor, yes.
Unidentified Justice: It could give that information to her for the limited purpose of monitoring the treatment?
Robert H. Lynn: And reporting to the judge who was, of course, monitoring this probation, yes.
Unidentified Justice: But you say there is at least a question as to whether before talking to the probationer she could have passed the information on to the police?
Robert H. Lynn: There is a substantial question as to that, Your Honor, yes.
Unidentified Justice: Mr. Lynn, these restrictions that you just referred to in responding to Justice Stevens, are those restrictions imposed by state law?
Robert H. Lynn: Imposed by both, Your Honor.
The Alpha House treatment program... This issue was litigated below at the trial court level.
The Alpha House treatment program is subject to certain federal regulations dealing with alcohol chemical dependency treatment.
There is also a state statute dealing with confidentiality.
The trial court ruled that one or both of these statutes acted to prevent that information from going to anyone other than the probation officer.
Unidentified Justice: What did... Did the Supreme Court of Minnesota pass on that question?
Robert H. Lynn: They did not, Your Honor.
That issue was not on appeal.
Unidentified Justice: So it is not before us either.
Robert H. Lynn: I believe not, Your Honor.
Unidentified Justice: Mr. Lynn, if when the probation officer questioned the Respondent he had refused to answer on grounds that his answer might incriminate him could Minnesota have revoked his probation for his refusal to answer?
Robert H. Lynn: I believe not, Your Honor.
As we discuss in our brief in this matter had he validly or had he claimed his Fifth Amendment privilege when this issue was discussed it is my interpretation of the rulings and decisions of this Court in such cases as Lefkowitz v. Turley, Lefkowitz v. Cunningham, Garrity and others that he could not be so punished.
He could not be revoked for invoking the Fifth Amendment validly.
In other words, that would be a valid defense.
I do not believe that issue has been litigated in the Minnesota Supreme Court, but I believe in any event it is bound by the decisions in this Court.
Unidentified Justice: You would concede that in making your argument?
Robert H. Lynn: Yes, Your Honor.
In any event then after this letter was sent to the probationer a meeting was set up September 28th, again at a time chosen by Respondent at the office he had been to approximately 12 times before.
The probation officer began that interview by telling Respondent exactly what she had learned from the Alpha House treatment program, that is, that he had made these comments about a murder and that she felt he needed further treatment.
At that point Respondent became angry and upset.
He commented that he felt like calling a lawyer.
He felt that his confidentiality had been violated.
She told him you will have to take care of that outside of the office because I want to talk to you further about further treatment.
The probation officer did not directly ask Murphy about this murder, did not directly confront him, never threatened to revoke him, simply posited the position that she felt based on what she had learned that he needed further treatment.
Respondent denied that.
He did that by first denying the false imprisonment charge for which he was in probation.
He claimed innocence, and he said further that at the time of this rape murder he had been involved with drugs quite heavily and that since he was no longer involved with drugs the two incidents were unrelated behaviorally.
The probation officer confronted him with his guilt on the false imprisonment charge and at that point without further prodding by this probation officer Respondent went ahead and in some detail described the 1974 murder.
At that point the probation officer informed him she would have to take this information to the police.
Respondent commented that he understood that but that unless he confessed to the police it would simply be her word against his.
She encouraged him to turn himself in.
He asked for time to do so.
At that point he began to cry.
He said he committed the ultimate sin.
After some moments of composing himself he walked out of her office unimpeded and left the building.
Two days later... The probation officer took no action for two days.
Two days later Respondent called and said he had contacted an attorney.
He had decided not to turn himself in and it was two days after that, in other words, four days after these admissions that Respondent was arrested and later charged and indicted with first degree murder.
The Fifth Amendment to the United States Constitution says no more nor no less than no person shall be compelled in any criminal case to be a witness against himself.
Unidentified Justice: Mr. Lynn, before you get into your argument, may I ask a sequel to the question Justice O'Connor asked?
You said that if he claimed the privilege he could not have had his parole revoked at that time.
Supposing he were asked not about something that happened prior to the institution of parole but about something that went on during parole, they asked him to report what he had been doing and whether he violated any of the conditions of parole.
In your view could he refuse to answer those questions and claim the privilege and still not have his parole revoked?
Robert H. Lynn: Your Honor, I would make a distinction.
If the questions asked had to do with perhaps noncriminal conditions of probation, for example, if he had been drinking when he was not supposed to be--
Unidentified Justice: No, suppose it related to violations of law occurring during the period of parole, is it your submission that he could refuse to answer those questions and still the Constitution would protect him from revocation--
Robert H. Lynn: --That is my reading, Your Honor, of the decisions of this Court.
Unidentified Justice: --Well, this Court has never addressed that question in a parole context.
Robert H. Lynn: --That is exactly right, Your Honor.
It may well be and there is some case law in lower courts and in the circuit courts that in the context of a probation officer-probationer relationship perhaps the Fifth Amendment has no application whatsoever.
At least there is some language in some Second Circuit cases to that regard or at least this Court and other courts have recognized that probationers like prisoners or parolees have a lesser right in the Fourth Amendment area of search or seizure and also in the Fifth Amendment area.
Unidentified Justice: Is it the practice in Minnesota... You are relying on federal law rather... Is it the practice in Minnesota that the parole officers in effect have an understanding with the parolees they do not have to tell them things they do not want to tell them?
Robert H. Lynn: I really do not know what the practice is, Your Honor.
Unidentified Justice: It seems to be very contrary to my understanding of the way this normally works.
Robert H. Lynn: All I can say is that in my experience as a state court prosecutor this issue very rarely ever comes up as to what transpired in the interview.
Unidentified Justice: And what the nature of the duty of the parolee to be candid with the parole officer is.
That never comes out?
Robert H. Lynn: Certainly yes it has, Your Honor.
The duty, of course, is to be truthful.
Unidentified Justice: Yes, be truthful but you say that does not mean you have to answer any questions if you do not want to answer them.
If you do answer you must answer honestly and that is the extent of the obligation in Minnesota.
Robert H. Lynn: I believe... Your Honor, I guess cannot answer for the State of Minnesota because I do not believe that that issue has been addressed in our courts either.
I can only deal with what is the practice and then my interpretation of case law in the Court.
But I do believe that if it is a valid assertion of a Fifth Amendment claim and if a probationer has his full right to a full Fifth Amendment privilege that he cannot be punished for a valid assertion of that privilege.
Unidentified Justice: Well, are you qualifying your answer to my question then?
Robert H. Lynn: Only to the extent, Your Honor, that--
Unidentified Justice: By saying you do not know if the probationer has a Fifth Amendment right?
Robert H. Lynn: --I am saying, Your Honor, that the issue... Yes, I guess I am saying that.
That issue has not been expressly decided by this Court nor by the Minnesota Supreme Court.
Unidentified Justice: So you withdraw your concession.
Robert H. Lynn: In that limited circumstance.
If it is a fact that a probationer has a lesser Fifth Amendment right than others then I would withdraw that concession.
I do not know that to be a fact or not a fact.
This Court has recognized, however, that the Fifth Amendment privilege against self-incrimination is not self-executing, that is, it must be claimed.
If a witness under compulsion to testify makes disclosures instead of claiming the privilege the government simply has not compelled him to incriminate himself.
The reason for that rule makes sense that a person in the circumstance as the Respondent in this case... There are many factors and circumstances which may compel one to incriminate himself.
Some may deal with government compulsion and some may deal with the person's own internal feelings or notions or ideas.
Unless the person attempts to claim or claims the privilege there is no way to know whether or not that individual made the admissions for reasons of his own or made the admissions as a result of governmental coercion or compulsion.
This Court has recognized very narrowly limited situations where one who does not claim that privilege may later assert it as a defense, and those, of course, are the inquiry here.
The inquiry narrowly is was the Defendant in custody or the Respondent in custody within the meaning of the Miranda case and the cases following; or secondly, absent custody were these admissions somehow coerced by genuine compulsion on the part of the government?
Now custody as defined last July by this Court in California v. Baylor means, of course, formal arrest and it also means a restraint of freedom of movement of the degree associated with formal arrest.
In the facts of this case we have neither a formal arrest nor a restraint of freedom to that degree.
The condition of probation required only that the probationer appear and report to his probation officer.
Unidentified Justice: Mr. Lynn.
David A. Strauss: Yes, sir.
Unidentified Justice: Do I gather from your last couple sentences that it is your view that the Supreme Court of Minnesota thought this case was governed by our Miranda decision?
Robert H. Lynn: Not precisely, Your Honor.
The Supreme Court of Minnesota said in their opinion that the defendant was not in custody in the normal sense but then from that position went on to identify three factors in the facts of this case and expanded the rationale if not the holding of Miranda to cover this situation and require warnings.
Unidentified Justice: I more or less read the Supreme Court of Minnesota's opinion as saying that a prophylactic requirement had been adopted in the Miranda case in the custodial interrogation arrest situation and they were going to fashion kind of another Miranda doctrine in the parolee or probationer-probation officer situation.
Robert H. Lynn: I think that is precisely correct, Your Honor.
That is what they did.
It is half the Miranda warnings.
It is the right to remain silent and the warning that the evidence may be used against you.
They left off the counsel part of the Miranda warning.
This Court has never adopted a warnings and waiver requirement in anything other than custodial interrogation as that was defined by Miranda and the cases following.
Unidentified Justice: Mr. Lynn, does the probation officer in Minnesota have the power to arrest?
Robert H. Lynn: The probation officer, Your Honor, has the same powers of arrest as a citizen.
Unidentified Justice: Is the probation officer's office located where?
Robert H. Lynn: It is located in the government center, Your Honor, which includes the courtrooms of the county--
Unidentified Justice: Is it in the court building or the police building?
Robert H. Lynn: --It is in the court building, Your Honor.
Unidentified Justice: Did you say that the probation officer has the same power of arrest as a citizen?
Robert H. Lynn: Under our arrest statute, Your Honor, there are powers applied to a peace officer and then there are citizen powers.
They are almost all the same.
A police officer may arrest with or without a warrant on probable cause.
I believe perhaps the specific answer here is that if this probation officer had something amounting to probable cause or reasonable cause that a violation of probation had occurred she could cause his arrest.
Probation officers do not carry weapons in Minnesota.
They do not conduct searches.
They do not have any of the other powers that you may associate with the police.
The trial court judge ruling found that this defendant was not in custody within the meaning of Miranda.
The Minnesota Supreme Court implicitly made that finding by not requiring the entire Miranda procedure.
I believe it is clear on the facts of this case and on the decisions of this Court that the defendant was not in custody within the meaning of Miranda.
There have been two lower court holdings, United States v. Miller out of the Second Circuit, United States v. Holmes out of the Eighth Circuit which agree with this conclusion.
I presume that in those situations the probationer was under the same sort of probation conditions as Respondent was here.
So that leads me then to the second inquiry.
Is there anything on the facts of this case that could be found to compel or to prohibit or deny this Respondent the free choice to admit, to deny or to claim the privilege?
I believe as pointed out in the facts of this case there is no identifiable factor here which interfered with that free choice on his part.
She never threatened him with revocation.
She never threatened him with any sanction whatsoever had he claimed the Fifth Amendment.
Since he did not he cannot now raise it in this Court.
Again, that inquiry looks further to the totality of the circumstances, and I point out briefly in that regard that the probation officer was acting on good faith in the performance of her dual role (1) to assist in the rehabilitation of the probationer, and (2) to protect the public.
She spoke with this man about treatment without threats or without coercion.
Chief Justice Warren E. Burger: Very well.
ORAL ARGUMENT OF DAVID A. STRAUSS, ESQ., ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE
David A. Strauss: Mr. Chief Justice, and may it please the Court:
The Fifth Amendment speaks of compulsion.
It prohibits the use of self-incriminating statements only when those statements have in some way been compelled.
Now what is notable about the Minnesota Supreme Court's opinion in this case is its failure to identify any source of compulsion that forced Respondent to speak against his will.
This Court has after all defined a test for determining whether confession has been compelled.
The test is the familiar one whether considering all the circumstances the defendant's will was overborne.
But no one, neither Respondent nor the court below, seemed seriously to suggest that Respondent's will was overborne in this sense.
He was not a juvenile.
He was not mentally handicapped.
He was not particularly vulnerable in any other way.
The probation officer's actions can scarcely be characterized as intimidating or menacing or abusive.
Unidentified Justice: Mr. Strauss, really are you fairly reading the Minnesota Supreme Court opinion?
They say because of the compulsory nature of the meeting because defendant was under a court order to respond truthfully to his agent's questions and so forth.
Are they not relying on compulsion when they say that?
David A. Strauss: Well, the source of compulsion they seem to identify to the extent they identify one has something to do with the probation conditions.
Unidentified Justice: You may disagree with their conclusion, but they did not ignore the requirement is all I am suggesting.
David A. Strauss: Well, I think they were insufficiently precise about realizing that they had to find actual compulsion on the defendant to speak, but I think you are right, Justice Stevens, that--
Unidentified Justice: Well, what if they construed the Minnesota probation condition to impose a legal obligation on the probationer to answer all questions?
David A. Strauss: --Well, two answers to that.
In the first place, they did not.
But even if they had imposed that that would simply put him in the same position as a grand jury witness who is under an obligation to speak and it is well settled on the basis of Monia and Cordell.
Unidentified Justice: Yes, but it is not because of an absence of compulsion.
David A. Strauss: --Oh, that is right.
Of course, had they construed the probation conditions to require--
Unidentified Justice: Well, it seems to me that is what they are saying when they say he was under court order to respond truthfully to his agent's questioning.
Does that not only say you have to be truthful but you have to respond truthfully?
As I read that I thought they were holding that he had a duty to respond.
David A. Strauss: --Well, the probation conditions are set out and the probation condition requires--
Unidentified Justice: As you know a statute means what the state court tells it does, and I would assume state probation conditions mean what the state court tells us they mean.
David A. Strauss: --I do not find in the Minnesota Supreme Court's opinion explicit instruction of those probation conditions to require the probationer to speak--
Unidentified Justice: They apparently just thought it was rather obvious that a duty to respond truthfully included a duty to respond.
David A. Strauss: --Well, the probation conditions which after all are written in a fashion that is supposed to be understood by the probationer say he must be truthful.
That is really all they say on this point.
As the state has pointed out to be truthful means not to lie.
Unidentified Justice: Did it also say that if the probation officer sees fit she can take you back to the judge without any more than that?
David A. Strauss: Yes, she can take him back if she has reason to believe he is violating his probation.
Unidentified Justice: And you do not consider that coercion?
David A. Strauss: Oh, certainly not.
A police officer who is interviewing a suspect with probable cause and believes the suspect has committed a crime can arrest the suspect on the spot, but that does not mean that the fact that he has probable cause means that he has to give Miranda warnings.
Unidentified Justice: You do not think a threat to have your probation... Suppose she said if you do not confess to me now I will have your probation revoked.
Would you consider that coercion?
David A. Strauss: Oh, yes.
That would be compulsion.
That would be a very different case.
Unidentified Justice: The only difference I submit between the two is she never used those words.
David A. Strauss: Well, she never said that to him.
I should say--
Unidentified Justice: But it was obvious was it not?
David A. Strauss: --Oh, I do not think it was obvious at all.
I do not think the Minnesota Supreme Court said that.
I also add, Justice Marshall, that even though the situation you have described which is not this case would constitute compulsion I do not think it would violate the Fifth Amendment.
Unidentified Justice: I was just hoping you would say there might be possibly a little bit of coercion.
David A. Strauss: I think... The term the Minnesota Supreme Court used is pressure.
There is no doubt there were some factors that impelled the Respondent to speak.
Usually when people confess there is some sort of emotional factor involved that impels them to speak.
But pressure and influence as this Court made absolutely clear in United States v. Washington those things do not amount to compulsion.
Compulsion is the overbearing of the witness' will and the fact that the witness was influenced by some circumstance, the fact that the State as the Court said in Washington created an atmosphere conducive to truth telling does not mean that the defendant was coerced.
Unidentified Justice: May I just ask this?
What is your view as to whether the probationer's probation could have been revoked if he had said I will not answer the question?
David A. Strauss: Our view obviously as a matter of federal constitutional law is that, yes, it could have been revoked.
Unidentified Justice: It is different--
David A. Strauss: Yes, we disagree with the State on that point.
Unidentified Justice: --There are two points to be kept in mind about the probation conditions to the extent that those are where the Minnesota Supreme Court located the compulsion in this case.
One is as the State has explained that they did not literally require him to answer every single question, and I think as most naturally interpreted they did not require him to answer every single question.
I think it is fair to say they imposed on him a general duty to cooperate, but that does not mean that if, for example, he thought the probation officer was asking a question that had nothing to do with probation and was invasive of his privacy that he could not have refused to answer for that question, for that reason.
It certainly does not mean that he could not have said I would rather not answer that because it might incriminate me.
But the second and I think more important point about the probation condition is that Respondent did not at any time seek either to clarify the meaning of those probation conditions or to invoke his Fifth Amendment privilege to the probation officer.
Now had he been unwilling to speak with the probation officer he would surely have said something to her suggesting his reluctance and asking whether he could refrain from speaking.
Was he not told to talk to the probation officer?
David A. Strauss: He was told to arrange meetings with her--
Unidentified Justice: And talk to her.
David A. Strauss: --And to be truthful with her.
Unidentified Justice: And to be truthful with her.
David A. Strauss: That is right.
Unidentified Justice: You said he was not.
David A. Strauss: No, he was told those things, but those are different things from being told to answer every question even if it is incriminating.
He was never told that, and he never asked whether he had to answer every question.
He could not conceivably have thought that just asking do I have to talk about that would jeopardize his probation, and it seems to me that if the Respondent would rather not have discussed the crime and was really being dragged into discussing the crime against his will because he feared that his probation might be revoked if he did not discuss it that the most natural thing for him to have done would have been to say do I have to talk about that.
Unidentified Justice: But, Mr. Strauss, would that be natural if he was under the impression that the purpose of the inquiry was to make sure he was getting appropriate treatment?
Would he not think that the right thing to do in his own self-interest would be to cooperate with the person who was trying to help him his treatment?
David A. Strauss: Well, that might have been a reason.
Unidentified Justice: Is that not what she told him that she wanted the information for?
David A. Strauss: I believe she did.
That might have been a reason for him to cooperate but--
Unidentified Justice: Was he at error in relying on what she told him?
David A. Strauss: --She never... No court has found that she made any promise implicit or explicit that would keep the information in confidence and would not use it and would not go to the police with it.
In fact at the end of the interview when she said to him you know I have to go to the police with this he said he understood--
Unidentified Justice: Well, if he knew and who knows whether he did or not what the restrictions are on use of this kind of information at the treatment center would he not normally have assumed that he could go forward with further discussion without running this particular risk?
David A. Strauss: --If there were some sort of promise given by--
Unidentified Justice: Well, there is a legal promise is there not?
David A. Strauss: --Well, no apparently there is not.
Unidentified Justice: Well, was there not a restriction on the treatment center's use of the information?
David A. Strauss: I gather there was, yes.
Unidentified Justice: Did that restriction not bind the probation officer until he repeated it to her face to face?
David A. Strauss: That is my understanding from the State, but that is different from there being a restriction on the information that the probation officer could give out on the basis of his statements.
Had there been some finding that she implicitly or explicitly promised him that what he said would go no further and would only be used for purposes of treatment I quite agree that this would be a different case under Bram.
But there is no finding in the basis of the opinion below.
It is plainly not that there was such a implicit promise or unfairness of this sort.
I would also reiterate as I said to Justice Stevens earlier that even if the probation condition are construed as having required Respondent to answer every single question that just puts him in the same position as any subpoenaed witness, and under the Monia presumption reaffirmed by such cases as Garner and Roberts and by the Mandujano plurality such a witness has to assert the privilege against self-incrimination in response to a question or he will not be considered to have been compelled to answer that question.
The reason for that rule, of course, is that witnesses are often willing to speak even though they could be compelled to speak were they not willing, and unless a witness objects and asserts his privilege there is no reason to conclude that he was not answering willingly.
Respondent is at the very worst at the same position as that.
Unidentified Justice: Mr. Strauss, if he did plead the Fifth Amendment could his probation be revoked for pleading the Fifth?
David A. Strauss: As a matter of constitutional law it is our view that it could for the reasons that Justice Stevens alluded to earlier and that Judge Frankel expressed in an opinion called Mandujano... called Manfredonia that we quote in our brief.
Chief Justice Warren E. Burger: Mr. Wernick.
ORAL ARGUMENT OF MARK S. WERNICK, ESQ., ON BEHALF OF THE RESPONDENT
Mark S. Wernick: Mr. Chief Justice, and may it please the Courts:
When Murphy went into that probation office he was faced with the classic cruel trilemma.
He was faced with the options of self-incrimination or contempt for refusing to talk or perjury if he talked falsely.
His only way out--
Unidentified Justice: Mr. Wernick, are you saying that the probation officer could have held him in contempt?
Mark S. Wernick: --He was under a court order to respond truthfully to his probation officer in all matters.
If he refused to do that that would be in contempt.
What I was about to say, Justice Rehnquist, that his only way out of that trilemma would be to assert the privilege.
On the question that the Court has asked whether his probation could be revoked for merely asserting the privilege it is my position that a probationer has full Fifth Amendment rights with respect to a new criminal prosecution but perhaps some lesser Fifth Amendment rights with respect to a probation revocation hearing.
Unidentified Justice: Is that kind of an unsettled question--
Mark S. Wernick: It is an unsettled question and I am analogizing to Baxter v. Palmigiano where this Court said that if a prisoner asserts the privilege at a prison disciplinary hearing an adverse inference could be raised at the hearing and similarly perhaps if a probationer asserts the privilege to a probation officer the probation officer could draw an adverse inference and that along with some other fact could be used to revoke.
Unidentified Justice: --To add to my education where is this case that you can be held in contempt for not answering a probation officer?
Mark S. Wernick: I used the word "contempt", Your Honor, just because the Court has used the word historically--
Unidentified Justice: Contempt means contempt.
It does not mean anything else.
Mark S. Wernick: --It means... What I meant to say was that he could have had his probation revoked and the Minnesota Supreme Court so said for refusing to discuss matters with his probation officer.
Unidentified Justice: But it is not contempt.
Mark S. Wernick: It is not contempt.
It would be a violation of his probation.
I raised it that way to say that he was facing the classic Fifth Amendmen dilemma.
The only way out of the dilemma was for him to assert the privilege, and the issue was whether he forfeited the privilege by making the disclosure or in other words did the probation officer do something or was the situation such that he was impaired from asserting the privilege and I submit he was because of two factors: first, because of what the probation officer told him about his right to talk to a lawyer; and second, because the probation officer continually made representations to Murphy about her concern being only treatment.
When Murphy said that he felt like calling a lawyer he said you are not supposed to know what I have said in treatment.
That was confidential.
I feel like calling a lawyer.
Murphy's confidentiality was intimately related to his ability to assert the privilege because if what he said in treatment was confidential then using the words this Court has used
"then the cat was not yet out of the bag. "
and Murphy could still assert the privilege and the privilege would protect him.
But if what Murphy said in treatment was not confidential then the cat would already be out of the bag and Murphy would not be protected by the privilege.
Unidentified Justice: Are you suggesting, Mr. Wernick, that there is a constitutional right to keep the cat in the bag to use your words or is it a constitutional right not to be compelled or forced to let the cat out of the bag?
Mark S. Wernick: The constitutional right is not to be compelled, but where the government leads you to believe that the cat is already out of the bag and, therefore, you make a disclosure the government has mislead you and has impaired your ability to assert the privilege.
Unidentified Justice: What is your authority for that proposition?
Mark S. Wernick: That where the government has mislead as to the purpose?
Unidentified Justice: Well, the same thing was involved in Oregon v. Mathiason.
We said it did not make any difference.
Mark S. Wernick: No, the Court did not reach that point in Oregon v. Mathiason.
The only issue in Oregon v. Mathiason was whether the defendant was in custody at the time, and the Court said that the falsehood that the police officer had told the defendant had nothing to do with the issue of whether or not he was in custody.
Unidentified Justice: Whether or not Miranda applied.
Mark S. Wernick: Whether or not Miranda applied.
That is correct.
Unidentified Justice: So what is your authority for the proposition that in this particular case they would be different then Mathiason?
Mark S. Wernick: Well, this case is different from--
Unidentified Justice: What is your authority?
Mark S. Wernick: --The old authority I guess is the first case Bram v. United States or Shotwell Manufacturing.
The Court has said in the context of a compulsory proceeding you cannot compel a person to talk by any implied threats or promises.
So I am saying when she talked to him about treatment, for example, she was impliedly representing to him that the purpose of discussing this murder was to determine whether or not he had to go back to treatment.
She represented to Murphy, Your Honor, no less then three times that her concern was treatment.
She said in her letter that she wanted to talk about treatment for the remainder of his probation.
When he got to the office she repeated I want to talk to you about treatment.
This is what I have heard you have been saying.
When she said to him you can deal with a lawyer outside the office I now want to talk to you about the behavioral relationship between the false imprisonment and the murder because I think that indicates more treatment.
Now this is--
Unidentified Justice: Do you think it had something to do with the treatment problems that she was dealing with?
Mark S. Wernick: --Whether it did or not she is still--
Unidentified Justice: Well, let's answer it.
Mark S. Wernick: --Yes, it did have something to do with treatment.
Unidentified Justice: So she had a right to ask him that question.
Mark S. Wernick: No question, Your Honor, she had a right to ask the question, but she has to ask the question in a way that is consistent with the privilege against compelled self-incrimination and she already knew that she was going to go to the police.
She had that in her mind.
She met with the supervisor and that decision was made.
Unidentified Justice: What reaction do you think there should be to his reference, Murphy's reference, to the fact that she thought he might want to talk to lawyer?
Mark S. Wernick: I think she would have to allow him to call the lawyer.
Unidentified Justice: Well, that indicated he was aware of the problem.
Mark S. Wernick: I believe he was aware that there was a problem.
Murphy testified that when he was confronted with this by the probationer flags went up in his head.
He said I felt like calling a lawyer but once the probation officer then says to him you will have to deal with a lawyer outside the office because now I want to talk about treatment that prevented Murphy from making any other assertion of his Fifth Amendment rights.
Unidentified Justice: Mr. Wernick, I do not read the Supreme Court of Minnesota's opinion as relying on implied representations by the probation officer.
Mark S. Wernick: That is correct, Your Honor.
In the question presented by the State of Minnesota in its petition for certiorari they identify the fact that this was a compulsory process and that the probation officer had substantial reason to know that the answers would be incriminatory and, therefore, the privilege was self-executing at that point and this is a case where the Court could reach that issue and decided whether or not based on those two factors the privilege would b self-executing.
I am saying this case also presents itself a third factor whether on these facts the probation officer impaired Murphy's ability to assert the privilege.
Unidentified Justice: But that is asking us to make a factual finding that the Supreme Court of Minnesota did not find.
Mark S. Wernick: Well, it is really a legal conclusion, Your Honor, I believe because the facts are in the Supreme Court opinion.
The facts are she had intended all along to report Murphy to the police and yet she made representations of treatment and she told them he could not call a lawyer.
These facts are all in the opinion.
The Court said in more general language than just limiting it to the two factors I have identified the Court said in the same paragraph as a matter of due process where this probation officer had already decided to report Murphy to the police this cannot be used against him.
So I think the Court can affirm based on the facts that are in the Supreme Court opinion.
When she told him again that she would not let him call a lawyer because she wanted to talk about this behavioral relationship I submit that when he first said he felt like calling a lawyer he was worried that the so-called cat had gotten out of the bag, but when she said you cannot call a lawyer because I want you to talk about this behavioral relationship at that point it was fair of him to assume that they were only talking about treatment.
Indeed, I ask the Court to look closely at the confession in this case because the confession really is an explanation of why he does not need treatment.
His confession is I am innocent of the false imprisonment charge.
At the time of the murder I was on drugs.
I am not using drugs any more therefore the false imprisonment is not related to the murder and therefore I do not need treatment.
This is his confession.
Now it was after he made the confession the probation officer said well you know I have to go to the police.
It was at that point Murphy says, well, I understand that and then he says to his probation officer you must really care about me to have me come in and talk about this because you could have just picked up the phone and started dialing the police.
Again, Murphy was wrong about the nature of his confidentiality rights.
The federal statute is clear.
The probation officer could not just have picked up the phone and called the police.
The language of the federal statute is that neither the treatment center nor the probation officer may initiate or substantiate a criminal prosecution based on information received from these federally funded treatment centers.
So when Murphy said you just could have called the police again Murphy was wrong about his confidentiality rights.
The issue in this case does not turn on whether Murphy was in custody because she had this legal power to compel.
The significance in this case--
Unidentified Justice: Can I ask you if the probation officer calls in a person on probation and says I hear you have been out drinking in bars and you know that you are not supposed to do that.
Have you been doing it and remember that if you refuse to answer your probation can be revoked, and he refuses to answer.
Would you say that the probation can be revoked in that circumstance if he refuses to answer?
Mark S. Wernick: --I would say... Well, the Court raises a very difficult question there because--
Unidentified Justice: Well, what is your view of it?
Mark S. Wernick: --My view is that it probably cannot but--
Unidentified Justice: It cannot you say.
Mark S. Wernick: --Not just for refusing--
Unidentified Justice: Well, then suppose the probation officer says if you refuse to answer, of course, your probation will be revoked and the fellow says well I will answer yes I have but he says you have compelled me to answer so you may not revoke my probation or use this against me.
Do you think he can use his statements against him?
Mark S. Wernick: --I think that they--
Unidentified Justice: For the purpose of revoking probation?
Mark S. Wernick: --Yes.
Unidentified Justice: So that is not compulsion.
That would not be a compelled answer?
Mark S. Wernick: That would be... In a sense yes, that would be compelled--
Unidentified Justice: Yes what?
Mark S. Wernick: --Yes it was compelled but yes it is--
Unidentified Justice: But it is not barred by the Fifth Amendment.
Its use is not barred by the Fifth Amendment even if it is compelled.
Mark S. Wernick: --That is because, Your Honor, the values underlying the self-incrimination clause go to protect the adversary nature of the criminal justice system.
It goes to protect the nature of a criminal trial.
Unidentified Justice: Well, in this case I guess you not contend that there was any physical or mental coercion in this case.
He finally answered the question about his involvement in this crime.
Mark S. Wernick: Yes.
Unidentified Justice: I take it that those statements could be used against him for the purposes of revoking probation.
Mark S. Wernick: I would say in this case they could not be used against him for the purposes of revoking probation--
Unidentified Justice: Why not?
Mark S. Wernick: --Because she told him he could not call a lawyer and any amount--
Unidentified Justice: Well, I know but that all flows from... You say it is not a Miranda case at all.
Mark S. Wernick: --Well, when a government official who has power to compel an answer to a question tell individual that they cannot call a lawyer--
Unidentified Justice: So this is a counsel case not a Fifth Amendment case?
Mark S. Wernick: --Counsel is related to the Fifth Amendment as this Court has said in Maness v. Meyers.
A person's ability to assert the privilege depends in many cases on their access to counsel.
Unidentified Justice: Mr. Wernick, is there not another factor that you may not have thought about but as a matter of Minnesota law is a parole revocation a criminal proceeding or is it not?
Mark S. Wernick: I think--
Unidentified Justice: Because if it is not a criminal proceeding the Fifth Amendment by its terms does not apply.
Mark S. Wernick: --It is a--
Unidentified Justice: Would not apply that is to use for parole revocation purposes.
Mark S. Wernick: --It is not an adversary proceeding such as a criminal trial.
There are some due process rights which attach to it.
Unidentified Justice: I understand that, but it is a criminal proceeding?
If it is not a criminal proceeding what would the source of the Fifth Amendment assertion be with respect to parole revocation as opposed to this case which is an indictment?
Mark S. Wernick: Your Honor, you are setting up categories for me which I am not sure how to describe the ultimate label of whether a revocation proceeding is a criminal proceeding or perhaps the best word to use is a "quasi" criminal proceeding.
Unidentified Justice: Well the Constitution does not use the word "quasi".
It either is or it is not.
Mark S. Wernick: Well, perhaps then it is best said that--
Unidentified Justice: But the point that you have to keep in mind is that the use that might be made of his answer what might be one thing in a subsequent trial and might be something else in a parole revocation hearing if that is not a criminal proceeding.
Mark S. Wernick: --I fully agree with the Court.
If in this case let's assume that the law is that where a probation officer uses a compulsory process to deliberately incriminate, to gather evidence for the police that the law is that that cannot be used in criminal trial absent some sort of advisory of the Fifth Amendment privilege.
Now the law may be is that when there is no Fifth Amendment privilege advisory you cannot use the statement in the context of a criminal trial but you could use it in a context of a revocation hearing.
The reason I said in this case you could not use Murphy's statements in a revocation hearing is because the probation officer went farther than that.
She completely undermined Murphy's ability to assert the privilege when he said--
Unidentified Justice: Well, what difference does it make?
What if she beat him up to get the information out of him and said the court requires you to answer.
She compelled him in every sense of the word.
It still would be admissible in the civil proceeding I would think.
There is no Fifth Amendment objection to doing it unless you violated some other right.
Mark S. Wernick: --Well, Your Honor, the Court raises good points and I guess my position is that once she cuts off his total ability to assert the privilege by saying he cannot call a lawyer that if he comes so involuntary at that point that it should not be used for any purpose whatsoever.
Unidentified Justice: I got the impression earlier you had more or less conceded that in light of Murphy's remarks about a lawyer that he did not need a warning.
A warning would have been a formality.
I want to be sure what is your position on that?
Mark S. Wernick: My position is that after he said I feel like calling a lawyer and was told that he could not because he had to talk about treatment that the probation officer completely confused Murphy as to what was going on in that conversation so at that point to the extent he might have been worried about a criminal prosecution before he talked once the probation officer told him no you cannot call a lawyer because this is about treatment then at that point he was confused and he thought he was talking about--
Unidentified Justice: Well, you do not usually have lawyers at probation talks with prisoners do you?
Mark S. Wernick: --No, you do not.
Unidentified Justice: I do not understand the importance about a lawyer there.
Mark S. Wernick: The importance--
Unidentified Justice: Asking for a lawyer at the probation talk.
Mark S. Wernick: --The importance of a lawyer is this.
When Murphy was confronted by the probation officer with her knowledge Murphy was faced with an extremely complicated legal situation.
Unidentified Justice: And should have a lawyer?
Mark S. Wernick: Well, he felt like he needed on and he certainly did.
Unidentified Justice: Well, I am asking what constitutional provision requires him to have a lawyer at a talk with a probation officer?
Mark S. Wernick: The Fifth Amendment says that the privilege against self-incrimination can be asserted... the amendment as this Court has interpreted that the privilege can be asserted in any language.
You do not have to be a lawyer to know how to assert the privilege and my--
Unidentified Justice: Well, do you have a Fifth Amendment if a man stops you in the street?
You get your Fifth Amendment in court do you not?
Mark S. Wernick: --But this was court.
This was a compulsory process.
Unidentified Justice: It was not a court.
Mark S. Wernick: He was under--
Unidentified Justice: This was in the probation officer's office.
Mark S. Wernick: --Your Honor--
Unidentified Justice: That is not a court.
Mark S. Wernick: --But this Court has said--
Unidentified Justice: Is that not a court?
Is it a court?
Mark S. Wernick: --It is not a courtroom.
I will concede only that much.
Unidentified Justice: Is it a court?
Mark S. Wernick: It is not a court room.
Unidentified Justice: It is not a court.
Mark S. Wernick: All right.
Not a court.
Unidentified Justice: All right.
Mark S. Wernick: By court I mean court room because--
Unidentified Justice: If it is not a court where do you get the right to a lawyer?
Mark S. Wernick: --He was under compulsion to speak via the court order and when he said I feel like calling a lawyer I am not saying that the probation officer had to go appoint him a lawyer at that time.
I am saying Murphy was attempting to assert the privilege.
He was attempting to find out what his legal rights were under the circumstances.
When she prevented him--
Unidentified Justice: Why did he not ask may I go and see a lawyer?
Mark S. Wernick: --Murphy's testimony was that he said I feel like I should have a lawyer present.
Unidentified Justice: Did he ask for a lawyer?
Mark S. Wernick: Well, he said I feel--
Unidentified Justice: He said I feel like a lawyer.
Mark S. Wernick: --Or--
Unidentified Justice: I feel like I am King Midas.
That does not help.
Mark S. Wernick: --Your Honor, take a look at the probation officer's response and then work backwards.
She said to him you will have to--
Unidentified Justice: I would rather... I usually read forward.
Mark S. Wernick: --Well, the probation officer said to him you will have to deal with a lawyer outside the office.
There is no--
Unidentified Justice: Did he not eventually do it?
Mark S. Wernick: --My point is that--
Unidentified Justice: Did he not eventually do it?
Mark S. Wernick: --Yes he did.
But there is no dispute in this case, Justice Marshall, that the lawyer was on notice that Murphy wanted to talk to a lawyer before he talked about the murder.
The only reason he did not do that is because the probation officer said to him you cannot.
Unidentified Justice: I would like to know if the probation officer said all right I will get you the lawyer and he got you and you came into the room and he said to you do I have to answer this question.
What would you have said?
Mark S. Wernick: Absolutely not.
Unidentified Justice: No obligation to answer the question?
Mark S. Wernick: No because the probation officer has the power to compel Murphy to talk about it, but like any other compulsory process of the court or probation officer--
Unidentified Justice: Would you have given the same answer if the question had pertained to an alleged criminal act after the beginning of the probationary period?
Mark S. Wernick: --Yes.
A person on probation has full Fifth Amendment rights with respect to new criminal prosecutions.
Unidentified Justice: But what if he then said well I want the information solely for the purpose and I represent to you it will be used only for that purpose of determining whether or not to revoke your probation.
Would he have a duty to answer that question or not?
Mark S. Wernick: I would say he would not have a duty to answer that question, but that the probation officer at that point under the authority of Baxter v. Palmigiano and the Court has not decided this issue in the context of probation but that the probation officer could at that point probably make an adverse inference.
In other words, when the probationer will not talk about it the probation officer can assume the worst.
Unidentified Justice: Well, if that is true then he might as well answer if the consequence is going to be parole revocation if that is the maximum consequence.
Mark S. Wernick: That is true if he has been assured that what he says is not going to be used against him at a criminal trial.
Unidentified Justice: Well, if the rule of the employee discharge cases applies it follows automatically that the testimony would be immunized from use at a criminal prosecution but not from use for discharge purposes.
Mark S. Wernick: I agree.
When I say, by the way, that Murphy could not have been revoked just for asserting the privilege the State of Minnesota does concede that if Murphy had asserted the privilege there would have been a revocation hearing.
Unidentified Justice: Well, as a practical matter when a person asserts the privilege really the only option that the person sitting there or a court is to draw an adverse inference if they refuse to testify.
Unless you are going to get out the thumbscrews you do not ever literally, you know, compel anyone to testify against their will.
It is really other devices that are used in the face of a refusal to testify.
Mark S. Wernick: Yes, I am not sure I follow the Court's point, though, on that.
But nonetheless it is compulsion whether it is physical force or not.
It is compulsion.
I missed the Court's point.
Unidentified Justice: I thought you were suggesting in your response to Justice Stevens that there was something peculiar about the fact that the remedy would have been to draw an adverse inference, and really I think that is what the remedy is in most cases.
Mark S. Wernick: Yes, except in a criminal trial where the Fifth Amendment prohibits the finder of fact from drawing an adverse inference.
I do not know how enforceable that is but certainly the jury cannot be instructed that they can draw an adverse inference.
You cannot argue that they can draw an adverse inference.
But in a criminal trial you cannot draw an adverse inference, and that may be the difference I am suggesting between the criminal trial and the revocation proceeding.
It is an unsettled question of law.
The cases that the Solicitor General cited in limiting the Fifth Amendment or in suggesting that this Court should limit the Fifth Amendment rights of probationers are First Amendment and Fourth Amendment cases where this Court has said that because of the particular institutional needs of a prison system the government can limit First Amendment rights and Fourth Amendment rights of people in prison.
The precedent in this Court for limiting Fifth Amendment rights of people convicted of crime is to the contrary.
Prisoners are entitled to Miranda warnings when they are being interrogated about new offenses while they are in prison, and this Court did assume in Baxter v. Palmigiano that if a prisoner were to be compelled to testify at a prison disciplinary hearing then his testimony would be immunized at a criminal trial.
So there is no authority for the proposition that the Fifth Amendment rights of probationers should be limited in the context of what can be used against them in a criminal trial.
In identifying what the institutional needs--
Unidentified Justice: You still have to show some compulsion.
Mark S. Wernick: --Yes.
Unidentified Justice: Your compulsion in this case was just asking the questions along with refusing him a lawyer?
Mark S. Wernick: Asking the questions pursuant to a court order, refusing the lawyer, telling him that this is just about treatment and I would add, Your Honor, that another significant fact in that regard is that at the time Murphy talked about this he was already in violation of his probation for having failed--
Unidentified Justice: I take it then consistent with your answers to me before and to Justice Stevens if the probation officer says to him I just want to check up on your treatment now have you been taking your treatment as you were supposed to do and the gentleman says I refuse to answer.
I will not talk about that and I do not have to talk about that.
I have been advised by my lawyer I do not have to talk about it.
The probation officer says well I am going to go to the judge and am going to revoke your probation.
He says well you cannot do that I have been advised by my lawyer that you cannot revoke my probation.
Would you say that he could not revoke the probation then?
Mark S. Wernick: --I do not believe that answering--
Unidentified Justice: Just for the refusal.
He goes to the judge and the judge says I revoke your probation because you refused to answer.
You refused to comply with one of the conditions of your probation.
You said I take it that you could not revoke the probation on that ground.
Mark S. Wernick: --In that hypothetical the judge may be able to revoke probation on that ground because it is not a crime to refuse to go to treatment.
Unidentified Justice: I know but we are talking about compulsion and an answer being used to revoke probation.
Mark S. Wernick: But you can only assert... When you are under court order to talk you can only assert the privilege as to those matters which would implicate you in a criminal prosecution.
Unidentified Justice: Well, you told me a while ago that you could not revoke the probation if he asked him have you been drinking at bars.
Mark S. Wernick: --I was going to... The reason that--
Unidentified Justice: You said no you could not revoke probation if he then said it is none of your business.
Mark S. Wernick: --The issue there would be, Your Honor, whether you can assert the privilege when you are being asked about something which is not a crime but yet is a violation of your probation.
That is what makes--
Unidentified Justice: That is the drinking one and that is the treatment one.
Mark S. Wernick: --Well, no because she is asking him tell me about this murder.
Unidentified Justice: No, no.
In my example I said he just asked him about treatment.
Are you taking your treatment and he says none of your business.
Do you think that probation could be revoked then?
Mark S. Wernick: If the Fifth Amendment only protects against further criminal prosecutions then the answer to your question is he could be revoked because--
Unidentified Justice: And similarly about drinking at bars.
Mark S. Wernick: --Similarly about drinking at bars but differently about being asked if he has committed other crimes.
Unidentified Justice: Then in neither case I would think would there be compulsion.
Mark S. Wernick: In both cases there may be some compulsion but--
Unidentified Justice: Well, there must--
Mark S. Wernick: --The government--
Unidentified Justice: --You have to say there is enough--
Mark S. Wernick: --Your Honor, the government compel--
Unidentified Justice: --You have to say there is enough compulsion to keep it out of a criminal trial.
Mark S. Wernick: --There is nothing illegal about the government compelling information.
The government does it all the time and it must compel information in order to function, but it has to do it in a way that is consistent with the Fifth Amendment.
When Murphy says I feel like calling a lawyer and when she tells him he cannot and when she tells him as to the nature of the interview she is not conducting herself in a way which is consistent with protecting the values underlying the Fifth Amendment.
It seems to me, Your Honor, all parties in this case have agreed that the most important institutional need of the probation system is a trust relationship between the probationer and the probation officer.
If this Court puts its seal of approval on the conduct of the probation officer in this case then that institutional need would be undermined, and I ask the Court to affirm the judgment of the Minnesota Supreme Court.
Chief Justice Warren E. Burger: Mr. Lynn, do you have something further?
ORAL ARGUMENT OF ROBERT H. LYNN, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL
Robert H. Lynn: A few points if I may, Your Honor.
As to the issue of a mention of a lawyer in this conversation on September 28th the constitutional right to a lawyer arises in only two circumstances that have been recognized by this Court.
That is the in-custody Miranda type of interrogation where the request for a lawyer is viewed by the prophylactic rules in that decision to affect protection of the Fifth Amendment rights.
The only other situation is at a critical stage of a criminal proceeding and that is the true Sixth Amendment right to counsel.
Neither of those two situations applies to a probation interview generally or to this one specifically.
Secondly, just to reiterate my major point.
The privilege in the Fifth Amendment does not prohibit asking questions or asking incriminative questions.
It only prohibits the government from compelling self-incrimination.
The focus of that inquiry has to be on the words and deeds and actions of the governmental agent in this particular case.
Either individually or in combination there are no factors identifiable here in the conduct of the probation officer which could be found under the existing decisions of this Court to compel his answers in the sense that he did not have the free choice to admit, deny or to claim the privilege.
Unidentified Justice: Mr. Lynn, what if Minnesota's parole conditions were a little less ambiguous because apparently there is some argument about what they really mean.
Supposing they said in so many words every probationer has an absolute duty to respond to every question propounded to him by the probation officer truthfully, fully in all detail concerning conduct during the probationary period, and the failure to respond to any such question shall be grounds for revocation of the probation, would there be any constitutional objection to that?
Robert H. Lynn: I do not believe so, Your Honor.
Unidentified Justice: But you do not construe these parole conditions to require any such broad duty to respond as I understand your argument.
I would think the interest of the parole system would be served by maximizing the flow of communication rather than by creating situations where you have got to claim privileges and all the rest.
Robert H. Lynn: I would generally agree with the Court.
Of the facts of this particular case, however, there is a problem--
Unidentified Justice: There is a problem because it relates to antecedent criminal conduct, but if it were not for that... Well, I guess we understand each other.
Robert H. Lynn: --Thank you.
Chief Justice Warren E. Burger: Thank you, gentlemen.
The case is submitted.