An update on recent developments in Arizona case law related to ADR, particularly arbitration and mediation.
The purpose of this article is to briefly bring you up to date on recent developments in Arizona case law related to alternative dispute resolution (ADR), particularly arbitration and mediation. At the conclusion, the article summarizes some of the trends on the national scene.
The first case dealt with is an unpublished decision, but one with a lot of comments regarding the bases for attacks on a large arbitral award.
2. “Undue Means” as a Basis for Overturning an Arbitral Award Is Clarified in the Roberts Decision.
Roberts v. Del Webb Communities, Inc., 2015 WL 770366 was a February 24, 2015 unpublished decision authored by the Honorable Maurice Portley of our Court of Appeals. The opinion affirmed Superior Court Judge Katherine Cooper’s confirmation of an arbitration award in favor of 460 purchasers of homes from Del Webb (and Pulte Homes) who had reported home construction problems ranging from collapsing soils to defective windows. An arbitration of their implied warranty claims had lasted 52 days before a three arbitrator panel and resulted in a $7.8 million award, followed by a $2.6 million award of attorneys’ fees to the claimant homeowners - plus expert costs. In their confirmation petition, the homeowners requested prejudgment and post judgment interest and Judge Cooper had awarded both.
Judge Portley, citing the recent case of Nolan v. Kenner, 226 Ariz. 459, 461 250 P.3rd 236, 238 (App. 2011) stated that the judicial review of arbitration awards is severely restricted under the F.A.A., which governed this arbitration.
Del Webb alleged that the arbitral award had been obtained by “undue means”, one of the listed F.A.A. bases upon which a court can refuse confirmation of an award. The first of the “undue means” which Del Webb asserted in this case was that one of a myriad of expert witnesses utilized by the plaintiff homeowners had been hired on a “contingent fee” basis. This was a matter which the arbitral panel had evaluated and considered at the time of hearing and had chosen to admit the expert’s opinion, but noted that the fee arrangement impacted the expert’s weight and credibility, not the admissibility of his testimony. Del Webb bolstered its “expert hired with a contingent fee” argument by saying that the panel’s admission of such testimony constituted a grave violation of public policy, an argument which the Superior Court and Court of Appeals rejected.
Claiming that there had been overzealous and unethical “solicitation” of the homeowners to join the case, and that the attorneys had an ownership interest in the soil testing lab which they had used, Del Webb asserted that such conduct was “undue means” which would justify a vacating of the award. The courts disagreed.
has been established by clear and convincing evidence.
Here in Roberts, the three arbitrator panel and the respondents, knew all about the way in which the claims were gathered and developed. The Appeals Court declined to find “undue means” and ruled that the award had properly been confirmed in the Superior Court.
Del Webb argued that no attorneys’ fees ($2.6 million) should have been awarded under its reading of the sales contract’s attorneys’ fees clause. The Court noted that both the homeowners and Del Webb had asked the panel to award attorneys’ fees and ruled that, when both parties have called for an award of legal fees, that issue is submitted to the panel for its decision and a court will not intervene to roll back the fee award.
Del Webb argued that, when the arbitral panel awarded the homeowners’ substantial expert fees as “costs of arbitration”, this was an error. The Court of Appeals ruled that such an interpretation of the “costs” which were allowed by the contract’s arbitration clause, was the panel’s construing the terms of the contract, a decision with which the court would not interfere.
This 2015 Roberts decision (to the extent citable) now amplifies the earlier decision in Nolan v. Kenner, 226 Ariz. 459, 250 P.3rd 236 (App. 2011). In that case, Judge Kessler on the Court of Appeals wrote that “undue means” to justify overturning an arbitral award had not been shown. The issue there has been that a California lawyer, not registered in Arizona, had represented Kenner in the arbitration proceedings. The Nolan opinion points out such bar membership was not concealed or misrepresented and was easily discoverable by opposing counsel who had represented Nolan, thus it could not be urged as “undue means” which would permit vacating the award.
In Russo v. Barger, 1 CA-CV14-0588 (January 26, 2016), the Court of Appeals overturned Judge Richard Gama. The opinion (by Judge Margaret Downie) dealt with a contract under which Russo had purchased a condo in Las Palomas Seaside Golf Community for $135,150 and had signed a purchase contract containing a forum selection clause choosing “the competent courts of the City of Hermosillo, Sonora”, Mexico. The condo developer claimed that there had been a decision by those courts granting the developer certain status, protection, and the right to continue to hold the money though the condo was not constructed after a long delay.
Russo filed suit in Maricopa County in 2009, which suit was timely answered - and the forum selection clause was raised by the developer among other defenses. A Motion for Summary Judgment and one for Cross Summary Judgment (not mentioning the forum selection clause) were filed in 2010. In 2011, an Amended Complaint was filed. Only then (after depositions were taken on various issues in the Motion for Summary Judgment) were Motions to Dismiss filed, raising the forum selection defense - and Judge Gama in Superior Court said that the forum selection clause was enforceable and had not been waived by three (3) years of Maricopa County litigation and discovery.
The teaching of this case as regards arbitration is that the Court of Appeals has stridently said that, if one has an arbitration clause that one might enforce, one must not file motions, or do depositions, or prepare disclosures. Instead, one must immediately, and preemptively, assert that arbitration clause (utilizing Section 12-3007, motion to compel or to stay arbitration). If you don’t do so, you will have lost your rights under the arbitration clause. This may be dicta, but it is forcefully stated.
We see few reported cases in Arizona which address any aspect of mediation. On September 22, 2015, the Court of Appeals (Div. 1) released a case addressing one of the most important features of mediation, confidentiality.
For 22 years, Arizona has had a simple and clear statute (A.R.S. § 12-2238) which envelopes the mediation process in the sort of broad privileged secrecy which we give to the statements made in the confessional. The statute flatly says: “The mediation process is confidential. Communications made…may not be discovered or admitted into evidence” unless one of four listed exceptions has occurred: (1) all parties to the mediation agree, (2) it’s needed to make a claim against the mediator (or his mediation program) related to breach of mediator obligations toward a party, (3) it’s required by a statute (perhaps A.R.S. § 46-454(b) re: elder abuse), or (4) it’s necessary to enforce an agreement to mediate.
In Grubaugh v. Blomo ex rel. County of Maricopa, 238 Ariz. 264, 359 P.3d 1008 (App. 2015), a litigant in family court litigation who sued her former attorneys related to their advice to Grubaugh during a mediation. In the mediation of a dissolution of marriage, the attorney’s advice on a “distribution of assets” question was, to Grubaugh’s belief, below the standard of care. She sued her former attorneys and, before discovery began, she had sought a ruling from the Superior Court that the Section 12-2238(B) mediation privilege was “waived.” The attorneys, faced with the claim, sought to reveal other (privileged) communications which would show why they gave such advice during the mediation. The Superior Court held that all the testimony could come into evidence, stating that the mediation privilege statute had simply failed to address this aspect of mediation (the client’s suing the lawyer).
This opinion issues a ringing endorsement of a broad privilege protecting all of the process of mediation (oral communications, demonstrative exhibits created for the mediation, and acts, all of which were done in or as part of the mediation). The case was sent back down from the Court of Appeal so that the trial court could determine if any of the communications which Grubaugh sought to expose could be said to have occurred “outside” of the mediation process. The final lines of the September 22, 2105 Court of Appeals decision state that, to the extent privileged material was placed in the Superior Court Complaint by Grubaugh, that material will be stricken from the Complaint.
On August 27, 2015, the Arizona Supreme Court amended its Rules (31, 34, 38, 39, 40, 42). Rule 31 regulates the Practice of Law in Arizona. Three important changes in that rule concern mediation in Arizona.
(a) Rule 31(a)(2)(D), altered the definition of mediation in two important aspects. The rule used to require that the mediator had to be engaged by all disputants’ actually signing a written agreement, but that requirement has now in effect, been made obsolete by our digital age of e-mails (and our electronic signature law). So that requirement of a written agreement with signatures has been removed from the Rule.
(b) A sentence has been added to the same paragraph (D) which sentence states: “Serving as a mediator is not the practice of law.” This too brought the Rule into conformity with modern times, as we have engineers and businessmen, among others, serving as mediators and no one serving as a mediator has a “client relationship” with any party in a mediation.
(c) In Rule 31(d)(25), the Supreme Court dealt with a concern that, in some instances, for example when two pro per litigants appear in a smaller mediated matter, the mediator may draft a settlement agreement for the parties. Such might look as though a mediator (who was not a lawyer) was, in effect, “practicing law.” After some months of “back and forth” commentary, the Supreme Court left in place the text in the rule which permits non-lawyer mediators to write settlement agreements if they are in a court (or government controlled) mediation program or in a non-for-profit community-based organization’s mediation program. The key thing is that a non-lawyer mediator, who is practicing outside of such programs, cannot prepare settlement documents. Such preparation of documents will need to be done by a lawyer or by a “certified document preparer” (under the Arizona Code of Judicial Administration, Part 7, Chapter 2, Section 7 - 208). The process for becoming a “certified document preparer” is not onerous, nor expensive.
As a prelude to the commentary below about national trends concerning arbitration, I have attached a Bill which was introduced in the Arizona State Senate on January 26, 2016. I am told that it was prepared by a lawyer who represents engineers, architects, and the AIA.
The bill (SB 1294) would have imported into every arbitration (whether conducted under the rules of AAA or JAMS or Tucson Realtors or the F.A.A. or RUAA statutes) a Superior Court procedural requirement. If this bill had been passed, an A.R.S. § 12-2602 Expert Affidavit would have had to accompany any demand for arbitration against any licensed professional. In addition, by adding to A.R.S. § 12-2602 a paragraph H, this bill would have narrowed greatly who can sign such a Section 12-2602 Expert Affidavit. Affidavit-signing experts are hard to find as it is, but the bill would have required that they be able to prove that (a) they are in precisely the same “branch” of engineering or medicine as the professional against whom they are offering testimony, and (b) during the year before their affidavit they devoted “a majority” of their professional time to that precise “branch” of engineering or medicine. There would have been further restrictions if the expert practiced in a forensic group.
The sidebar litigation that would have resulted from such a requirement would have been considerable and would have delayed arbitration (or litigation), thus increasing expenses for all plaintiffs or claimants.
After some lobbying, this bill was withdrawn by its sponsor and did not become law, but the fact that it was proposed fits well into my comments as to what the trends are nationally re: arbitration.
In 2007, a bill was filed in Congress entitled “The Arbitration Fairness Act.” If it had been adopted, it would have prohibited most pre-dispute arbitration clauses between companies and individuals.
Arbitration robs consumers of the “protections” of or jury trial and of court house discovery rules.
Arbitration agreements routinely tilt the playing field against “the little guy” reducing remedies available to them.
Arbitrators are often not independent, but are “beholden” to repeat users of arbitration.
The bill as it was proposed nine years ago, would have benefited one group with certainty, trial lawyers. ATLA supported the bill, which, in its Article 2, said it was intended to roll back U.S. Supreme Court decisions so as to protect “civil rights” from being eroded and to void parts of contracts occurring between all “parties of disparate bargaining power,” such as consumer disputes and employment disputes. Of course, determining whether a contract containing an arbitration clause was one which was between parties of “disparate bargaining power” set up the likelihood that there will be a lot of challenges to a lot of contracts, since “disparate” is a vague term.
The 2007 bill contained in its provisions “findings” that a “rapidly growing number of corporations are requiring millions of consumers and employees to give up their right to have disputes resolved by a judge or jury…” Another “finding” stated that consumers and employees don’t understand “deliberately fine print” that strips them of their rights and often leaves them unaware that such has occurred.” Various studies were done after 2007 trying to show proponents of the bill that some industries used arbitration - but that others made essentially no use of it; that consumers fared as well or better in arbitration than in (expensive) court house litigation; and that there is little evidence of a “repeat player” phenomenon.
As lawyers who follow cases about arbitration know, since approximately 2000 the nation’s courts have been generating recorded cases regarding procedural and substantive “unconscionability.” The Courts have been busy declaring as unenforceable those arbitration clauses which unfairly restrict remedies, amounts of damages, allocation of costs, hearing procedures, arbitrator selection, etc.
The same bill was filed once again in 2013 as S. 878 (113th Congress).
Along the way, due to the fracas in the hearings repeatedly held on Capitol Hill, the three major providers of consumer arbitration services (AAA, JAMS, National Arbitration Forum) all adopted rules requiring that the consumer arbitration clauses which they enforce will have to provide basic rights (reasonable fees, fair selection of arbitrators, all remedies available at law, fair locale selection, etc.).
During the run-up to the 2012 and the 2014 mid-term Federal Congressional elections, articles appeared speculating whether one or another of the then just released Supreme Court decisions or arbitration would increase or decrease the odds of a passage of the Arbitration Fairness Act. See “On Babies and Bathwater, the Arbitration Fairness Act and the Supreme Court’s Recent Arbitration Juris Prudence, 48 Houston Law Review, 457 (2011) regarding speculation as to the 2012 election, note 4.
One lesson has to be taken from the repeated refiling and tinkering with the misnamed Arbitration Fairness Act, as it is introduced again and again. Regardless of how well our Courts protect against procedural and substantive unconscionability in arbitration clauses, there are forces abroad in the land seeking to disable arbitration in a large number of situations. Whenever Courts fail to protect litigants against unreasonable arbitration clauses, the Courts thereby strengthen the hand of people calling for crippling restrictions on arbitration, restrictions which would affect some non-consumer arbitrations, as well as consumer arbitrations.
Bills were introduced at the end of January, 2016, in the New York State Legislature which sound very much like the Federal Fairness in Arbitration Act (Bills A108 and A8191). On February 10, 2016, the New York State Assembly heard those bills. Some commentators have noted that the New York Legislators seem to have “bought into” a very one-sided New York Times seven-article series in November of 2015 which “slammed” arbitration as being inimical to the “rights” of citizens to endure lengthy and expensive jury trials.
Any state legislation along these lines runs the risk of running afoul of Section 2 of the Federal Arbitration Act (8 USC § 1) which preempts and does not state law to single out and interfere with arbitration clauses under the F.A.A. If New York or other states start adopting acts like the Federal Fairness in Arbitration Act, there will be a lot of litigation to set aside such acts under the F.A.A.
appeal ability under § 12-3023.
Arizona cases like Broemer v. Abortion Services of Phoenix, Ltd., 173 Ariz. 148, 840 P.2d 1013 (1992), Harrington v. Pulte Home Corp, 211 Ariz. 241, 119 P.3d 1044 (App. 2005), Clark v. Renaissance West, LLC, 232 Ariz. 510, 307 P.3rd 77 (App. 2013), and Chang v. Siu, 234 Ariz. 442, 323 P.3d 725 (App. 2014), have demonstrated that our State Courts take seriously their duty to uphold fairness by finding “unconscionability” whenever it occurs, thus protecting the institution of arbitration..
The U.S. Supreme Court sent the case back under Section 2 of the F.A.A. saying it appeared Hawaii was too sensitive and, in effect, was treating arbitration agreements far differently than all other contract clauses, thus raising the preemption issue under the F.A.A. Section 2 - but the Ritz-Carlton cases demonstrate the great struggle throughout the country as to unconscionability rulings.
The key question is: When has the drafter of an arbitration cause “tilted the playing field” too far resulting in the clause being so unfair that the Courts will intervene and void the clause, forcing the dispute to enter the Court system?
 The RUAA also restricts judicial review to 6 bases stated in the statute. A.R.S. § 12-3023 (A)(1)-(6).
 Amended in 2010 after we adopted our RUAA.
	S.1728/HR3010, 109th Congress, Arbitration Fairness Act of 2007.
 "Who Can Be Against Fairness? The Case Against the Arbitration Fairness Act," Peter R. Rutledge, 9 v. Georgia Law Digital Commons, p. 267 (2008).


1.1 The number of lots of goods, delivered under CIF-port of destination terms, was defined on the basis of information contained in the bill of lading instead of that contained in the Seller's invoice.
1.2 At the time of conclusion of the contract the main places of business of the parties to that contract were in Contracting States of the CISG (the USSR and Syria), thus this Convention is applicable to the relations of parties. Considering that the contract had been concluded in Moscow, the Russian law was applied subsidiary on the basis of Russian Federation Civil Code 1964 Art. 566.
1.3 The penalty for the delay in payment in the amount specified in the contract was recovered from the Respondent [Buyer] for the period until filing the claim. Annual interest for the period from the date when the action was filed until the factual payment was awarded to the Claimant [Seller] at the rate of the banking credit at his place proved by the [Seller] on the basis of Russian Federation Civil Code Art. 395.
The action was brought by the [Seller],a Russian company, against the [Buyer],a Syrian company, in connection with failure to pay for the goods delivered under the contract between the parties of October 1991. The [Seller]'s claims included recovery of payment for the price of goods and payment of the penalty for the delay in payment, as stipulated in the contract. Additionally, on the basis of Russian Federation Civil Code Art. 395, [Seller] claims recovery of annual interest for using the money for the period from filing an action until the date of payment of the principal debt.
The ruling of the Tribunal of International Commercial Arbitration (hereinafter Tribunal) contained the following main points.
The Tribunal's competence to arbitrate the present case is based on para. 16 of the General Provisions of Sales, which is a part of the contract of 26 October 1991, also an arbitration clause "[a]ll disputes or misunderstandings between the parties that might arise from or in connection with this contract shall be solved, excluding the courts of general jurisdiction, by the International Trade Commission at the USSR Chamber of Commerce and Trade according to the Rules of Procedure of this Commission". By the Order of the USSR Supreme Council of 14 December 1987, the said Commission was renamed the Tribunal of Arbitration at the USSR Chamber of Commerce and Trade. According to the Chapter of the Tribunal, the Tribunal is a successor to the Tribunal of Arbitration at the USSR Chamber of Commerce and Trade and is competent to arbitrate the disputes, which parties aimed in their agreements to be referred to the Tribunal of Arbitration at the USSR Chamber of Commerce and Trade. Therefore, the Tribunal is competent to arbitrate the present dispute.
The contract concluded between the parties does not specify any applicable law. Since at the time of conclusion of the contract the USSR and Syria have already been the Contracting States of the CISG, thus the provisions of this Convention are applicable to the relations of parties to the dispute. By virtue of CISG Art. 7, issues not governed by the Convention should be solved on the basis of general principles on which the Convention is based, or when such principles do not exist - according to the law, applicable under the rules of international private law.
Art. 28(2) of the Russian Federation Law On the Tribunal of International Commercial Arbitration provides that when there is no parties' agreement as to applicable law, the Tribunal should apply the law defined under the rules of conflict of laws that the Tribunal considers applicable. The Tribunal has a stable trend to apply to such cases Russian rules of conflict of laws. The Tribunal did not find any reasons to revert from practice when arbitrating the present dispute. According to the rule of conflict of laws of the Russian Federation Civil Code 1964 Art. 566 which governs the relations between the parties, the rights and obligations of parties to an international sales contract should be defined under the laws of the place of conclusion of the contract [lex loci actus] provided the parties did not agree otherwise. Since the contract had been concluded in Moscow,the Russian laws should be applied subsidiary to the provisions of CISG.
The [Seller] shipped the goods on the CIF - port of destination terms as required by the contract. According to Amendment No. 1 to the contract, the [Buyer] was obligated to pay the price for the goods within 60 days from the date of [issuing] of the bill of lading. However, the [Buyer] failed to do so in the required term, neither did he pay later after multiple notices from the [Seller]. By this, the [Buyer] breached the contract provisions, as well as CISG Art. 53 and must pay the [Seller] the price for the goods delivered.
The [Seller] claims recovery of the sum which is the same as the sum in the invoice sent to the [Buyer]. This invoice has a reference to the bill of lading. However, the bill of lading specifies less number of lots of goods shipped than specified in the invoice. The [Seller] calculated the sum of his claim on the basis of the numbers specified in the invoice.
The Tribunal believes that this sum is not correct because in contrast with the bill of lading, the number of lots of goods has been increased without any reasons. Therefore, the Tribunal found that [Seller] shall recover only the sum that covers the number of lots of goods specified in the bill of lading.
According to the Amendment No. 1 to the contract, the [Buyer] must pay a penalty, calculated for every day of the delay of payment. The [Seller] made a calculation effective on the date of filing the action. Since the sum claimed by the [Seller] does not exceed the amount of penalty for the delay of payment for the period from 21 April 1992 until 1 March 1995, thus it shall be recovered from the [Buyer].
Based on the Russian Federation Civil Code Art. 395, the [Seller] claimed recovery of the annual interest for using the money for the period from 1 March 1995 (the day of filing the action) until the day of actual payment. The practice of application of the said Art. 395, which is confirmed by the Decision of the Russian Federation Supreme Court and Supreme Tribunal of Arbitration No. 6/8 of 1 July 1996, provides for the following. In cases when, according to the currency regulation laws, the monetary obligation is specified in a foreign currency and there is no information about the official credit rate on the day of performance of the obligation at the place of the creditor, the annual interest rate should be defined on the basis of official publications on the average rates of banking credits in foreign currency at the place of the creditor. If there are no such publications, the annual interest rate should be established on the basis of the report of one of the leading banks at the place of the creditor (such report shall be presented by the claimant) which confirms that this rate is applicable to the short term currency credits.
In light of the above the Tribunal, when defining the rate of annual interest based this decision on the report on the average annual credit rate, issued by the Russian Federation Bank of Foreign Trade on 28 February 1996.
* This is a translation of data on Proceeding 74/1995, dated 16 September 1996, of the Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, reported in Rozenberg ed., Arb. Praktika (1996-1997) No. 24 [83-85].
All translations should be verified by cross-checking against the original text. For purposes of this translation, Claimant of Russia is referred to as [Seller]; Respondent of Syria is referred to as [Buyer].


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CFC Controlled Foreign Corporation Tax Problem?
IRS has issued temporary and proposed regs to determine the basis of certain U.S. property acquired by a controlled foreign corporation (CFC) in certain nonrecognition transactions that are intended to repatriate earnings and profits of the CFC without income inclusion by the U.S. shareholders of the CFC under Code Sec. 951(a)(1)(B).
Background. IRS is aware that certain taxpayers are engaging in certain nonrecognition transactions in which a CFC acquires certain U.S. property (within the meaning of Code Sec. 956(c)) without resulting in an income inclusion to the U.S. shareholders of the CFC under Code Sec. 951(a)(1)(B).
IRS believes these transactions raise significant policy concerns because the transactions may have the effect of repatriating earnings and profits of a CFC without a corresponding dividend inclusion, or an income inclusion under Code Sec. 951(a)(1)(B) by reason of the CFC’s investment in U.S. property.
Code Sec. 956 was enacted to require an income inclusion by U.S. shareholders of a CFC that invests certain earnings and profits in U.S. property on the ground that the investment is substantially the equivalent of a dividend being paid to them.
Under Code Sec. 951(a)(1)(B), each U.S. shareholder (as defined in Code Sec. 951(b)) of a CFC (as defined in Code Sec. 957(a)) must include in its gross income for its tax year in which or with which the tax year of the CFC ends, the amount determined under Code Sec. 956 with respect to such shareholder for such year (but only to the extent not excluded from gross income under Code Sec. 959(a)(2)).
Regs under Code Sec. 367(b) prevent the repatriation of a U.S. person’s share of earnings and profits of a foreign corporation through what would otherwise be a nonrecognition transaction.
Under Code Sec. 362(a), for property acquired by a corporation in connection with a Code Sec. 351 transaction (relating to transfer of property to corporation controlled by transferor), the basis is the same as it would be in the hands of the transferor, increased by the amount of any gain recognized to the transferor on the transfer.
Illustration: Applying the facts from Illustration (1), the results are as follow under the temporary regs. The US2 stock acquired by CFC in the exchange constitutes U.S. property under Reg. § 1.956-1T(e)(6)(ii) because CFC acquires the US2 stock from US2, the issuing corporation. Therefore, because CFC’s basis in the US2 stock is determined under Code Sec. 362(a), then for purposes of Code Sec. 956, CFC’s basis in the US2 stock is, under Reg. § 1.956-1T(e)(6)(iii) no less than $90 million, the fair market value of the property exchanged by CFC for the US2 stock (the $10 million of CFC stock issued in the exchange does not constitute property for purposes of Reg. § 1.956-1T(e)(6)(iii)). Under Reg. § 1.956-1T(e)(6)(iv), for purposes of Reg. § 1.956-2(d)(1)(i)(a), CFC is treated as acquiring its basis of no less than $90 million in the US2 stock at the time of its transfer of property to US2 in exchange for the US2 stock. The result would be the same if, instead of CFC transferring $90 million of cash to US2 in the exchange, CFC assumes a $90 million liability of US2. Reg. § 1.956-1T(e)(6)(vi), Example 1.

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Following the disappearance of a 10-year-old girl in Des Moines, Iowa, respondent was arrested and arraigned in Davenport, Iowa. The police informed respondent's counsel that they would drive respondent back to Des Moines without questioning him, but during the trip one of the officers began a conversation with respondent that ultimately resulted in his making incriminating statements and directing the officers to the child's body. A systematic search of the area that was being conducted with the aid of 200 volunteers and that had been initiated before respondent made the incriminating statements was terminated when respondent guided police to the body. Before trial in an Iowa state court for first-degree murder, the court denied respondent's motion to suppress evidence of the body and all related evidence, including the body's condition as shown by an autopsy, respondent having contended that such evidence was the fruit of his illegally obtained statements made during the automobile ride. Respondent was convicted, and the Iowa Supreme Court affirmed, but later federal-court habeas corpus proceedings ultimately resulted in this Court's holding that the police had obtained respondent's incriminating statements through interrogation in violation of his Sixth Amendment right to counsel. Brewer v. Williams, 430 U.S. 387 . However, it was noted that even though the statements could not be admitted at a second trial, evidence of the body's location and condition might be admissible on the theory that the body would have been discovered even if the incriminating statements had not been elicited from respondent. Id., at 407, n. 12. At respondent's second state-court trial, his incriminating statements were not offered in evidence, nor did the prosecution seek to show that respondent had directed the police to the child's body. However, evidence concerning the body's location and condition was admitted, the court having concluded that the State had proved that if the search had continued the body would have been discovered within a short time in essentially the same condition as it was actually found. Respondent was again convicted of first-degree murder, and the Iowa Supreme Court affirmed. In subsequent habeas corpus proceedings, the Federal District Court, denying relief, also concluded that the body inevitably would have been found. However, the [467 U.S. 431, 432] Court of Appeals reversed, holding that - even assuming that there is an inevitable discovery exception to the exclusionary rule - the State had not met the exception's requirement that it be proved that the police did not act in bad faith.
The evidence pertaining to the discovery and condition of the victim's body was properly admitted at respondent's second trial on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional provision had taken place. Pp. 440-450.
(a) The core rationale for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct is that such course is needed to deter police from violations of constitutional and statutory protections notwithstanding the high social cost of letting obviously guilty persons go unpunished. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired. By contrast, the independent source doctrine - allowing admission of evidence that has been discovered by means wholly independent of any constitutional violation - rests on the rationale that society's interest in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. Although the independent source doctrine does not apply here, its rationale is wholly consistent with and justifies adoption of the ultimate or inevitable discovery exception to the exclusionary rule. If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means - here the volunteers' search - then the deterrence rationale has so little basis that the evidence should be received. Pp. 441-444.
(b) Under the inevitable discovery exception, the prosecution is not required to prove the absence of bad faith, since such a requirement would result in withholding from juries relevant and undoubted truth that would have been available to police absent any unlawful police activity. This would put the police in a worse position than they would have been in if no unlawful conduct had transpired, and would fail to take into account the enormous societal cost of excluding truth in the search for truth in the administration of justice. Significant disincentives to obtaining evidence illegally - including the possibility of departmental discipline and civil liability - lessen the likelihood that the ultimate or inevitable discovery exception will promote police misconduct. Pp. 445-446.
(c) There is no merit to respondent's contention that because he did not waive his right to the assistance of counsel, and because the Sixth Amendment exclusionary rule is designed to protect the right to a fair [467 U.S. 431, 433] trial, competing values may not be balanced in deciding whether the challenged evidence was properly admitted. Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial. Nor would suppression ensure fairness on the theory that it tends to safeguard the adversary system of justice. Pp. 446-448.
(d) The record here supports the finding that the search party ultimately or inevitably would have discovered the victim's body. The evidence clearly shows that the searchers were approaching the actual location of the body, that the search would have been resumed had respondent not led the police to the body, and that the body inevitably would have been found. Pp. 448-450.
700 F.2d 1164, reversed and remanded.
BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 450. STEVENS, J., filed an opinion concurring in the judgment, post, p. 451. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 458.
Brent R. Appel, Deputy Attorney General of Iowa, argued the cause for petitioner. With him on the briefs were Thomas J. Miller, Attorney General, and Thomas D. McGrane, Assistant Attorney General.
Kathryn A. Oberly argued the cause for the United States as amicus curiae urging reversal. With her on the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Joel M. Gershowitz.
[ Footnote * ] James E. Duggan filed a brief for the National Legal Aid and Defender Association as amicus curiae urging affirmance.
We granted certiorari to consider whether, at respondent Williams' second murder trial in state court, evidence pertaining to the discovery and condition of the victim's body was properly admitted on the ground that it would ultimately or inevitably have been discovered even if no violation of any constitutional or statutory provision had taken place.
On December 24, 1968, 10-year-old Pamela Powers disappeared from a YMCA building in Des Moines, Iowa, where she had accompanied her parents to watch an athletic contest. Shortly after she disappeared, Williams was seen leaving the YMCA carrying a large bundle wrapped in a blanket; a 14-year-old boy who had helped Williams open his car door reported that he had seen "two legs in it and they were skinny and white."
Williams' car was found the next day 160 miles east of Des Moines in Davenport, Iowa. Later several items of clothing belonging to the child, some of Williams' clothing, and an army blanket like the one used to wrap the bundle that Williams carried out of the YMCA were found at a rest stop on [467 U.S. 431, 435] Interstate 80 near Grinnell, between Des Moines and Davenport. A warrant was issued for Williams' arrest.
Police surmised that Williams had left Pamela Powers or her body somewhere between Des Moines and the Grinnell rest stop where some of the young girl's clothing had been found. On December 26, the Iowa Bureau of Criminal Investigation initiated a large-scale search. Two hundred volunteers divided into teams began the search 21 miles east of Grinnell, covering an area several miles to the north and south of Interstate 80. They moved westward from Poweshiek County, in which Grinnell was located, into Jasper County. Searchers were instructed to check all roads, abandoned farm buildings, ditches, culverts, and any other place in which the body of a small child could be hidden.
Meanwhile, Williams surrendered to local police in Davenport, where he was promptly arraigned. Williams contacted a Des Moines attorney who arranged for an attorney in Davenport to meet Williams at the Davenport police station. Des Moines police informed counsel they would pick Williams up in Davenport and return him to Des Moines without questioning him. Two Des Moines detectives then drove to Davenport, took Williams into custody, and proceeded to drive him back to Des Moines.
"I want to give you something to think about while we're traveling down the road. . . . They are predicting several inches of snow for tonight, and I feel that you yourself are the only person that knows where this little girl's body is . . . and if you get a snow on top of it you yourself may be unable to find it. And since we will be going right past the area [where the body is] on the way into Des Moines, I feel that we could stop and locate the body, that the parents of this little girl should be entitled to a Christian burial for the little girl who was snatched away from them on Christmas [E]ve and murdered. . . . [467 U.S. 431, 436] [A]fter a snow storm [we may not be] able to find it at all."
Leaming told Williams he knew the body was in the area of Mitchellville - a town they would be passing on the way to Des Moines. He concluded the conversation by saying: "I do not want you to answer me. . . . Just think about it . . . ."
Later, as the police car approached Grinnell, Williams asked Leaming whether the police had found the young girl's shoes. After Leaming replied that he was unsure, Williams directed the police to a point near a service station where he said he had left the shoes; they were not found. As they continued the drive to Des Moines, Williams asked whether the blanket had been found and then directed the officers to a rest area in Grinnell where he said he had disposed of the blanket; they did not find the blanket. At this point Leaming and his party were joined by the officers in charge of the search. As they approached Mitchellville, Williams, without any further conversation, agreed to direct the officers to the child's body.
The officers directing the search had called off the search at 3 p. m., when they left the Grinnell Police Department to join Leaming at the rest area. At that time, one search team near the Jasper County-Polk County line was only two and one-half miles from where Williams soon guided Leaming and his party to the body. The child's body was found next to a culvert in a ditch beside a gravel road in Polk County, about two miles south of Interstate 80, and essentially within the area to be searched.
In February 1969 Williams was indicted for first-degree murder. Before trial in the Iowa court, his counsel moved to suppress evidence of the body and all related evidence including the condition of the body as shown by the autopsy. The ground for the motion was that such evidence was the "fruit" [467 U.S. 431, 437] or product of Williams' statement made during the automobile ride from Davenport to Des Moines and prompted by Leaming's statements. The motion to suppress was denied.
The jury found Williams guilty of first-degree murder; the judgment of conviction was affirmed by the Iowa Supreme Court. State v. Williams, 182 N. W. 2d 396 (1970). Williams then sought release on habeas corpus in the United States District Court for the Southern District of Iowa. That court concluded that the evidence in question had been wrongly admitted at Williams' trial, Williams v. Brewer, 375 F. Supp. 170 (1974); a divided panel of the Court of Appeals for the Eighth Circuit agreed. 509 F.2d 227 (1974).
We granted certiorari, 423 U.S. 1031 (1975), and a divided Court affirmed, holding that Detective Leaming had obtained incriminating statements from Williams by what was viewed as interrogation in violation of his right to counsel. Brewer v. Williams, 430 U.S. 387 (1977). This Court's opinion noted, however, that although Williams' incriminating statements could not be introduced into evidence at a second trial, evidence of the body's location and condition "might well be admissible on the theory that the body would have been discovered in any event, even had incriminating statements not been elicited from Williams." Id., at 407, n. 12.
At Williams' second trial in 1977 in the Iowa court, the prosecution did not offer Williams' statements into evidence, nor did it seek to show that Williams had directed the police to the child's body. However, evidence of the condition of her body as it was found, articles and photographs of her clothing, and the results of post mortem medical and chemical tests on the body were admitted. The trial court concluded that the State had proved by a preponderance of the evidence that, if the search had not been suspended and Williams had not led the police to the victim, her body would have been [467 U.S. 431, 438] discovered "within a short time" in essentially the same condition as it was actually found. The trial court also ruled that if the police had not located the body, "the search would clearly have been taken up again where it left off, given the extreme circumstances of this case and the body would [have] been found in short order." App. 86 (emphasis added).
In finding that the body would have been discovered in essentially the same condition as it was actually found, the court noted that freezing temperatures had prevailed and tissue deterioration would have been suspended. Id., at 87. The challenged evidence was admitted and the jury again found Williams guilty of first-degree murder; he was sentenced to life in prison.
"After the defendant has shown unlawful conduct on the part of the police, the State has the burden to show by a preponderance of the evidence that (1) the police did not act in bad faith for the purpose of hastening discovery of the evidence in question, and (2) that the evidence in question would have been discovered by lawful means." Id., at 260.
The Iowa court then reviewed the evidence de novo 1 and concluded that the State had shown by a preponderance of the evidence that, even if Williams had not guided police to the child's body, it would inevitably have been found by lawful activity of the search party before its condition had materially changed.
In 1980 Williams renewed his attack on the state-court conviction by seeking a writ of habeas corpus in the United States District Court for the Southern District of Iowa. The District Court conducted its own independent review of the evidence and concluded, as had the state courts, that the body would inevitably have been found by the searchers in essentially the same condition it was in when Williams led police to its discovery. The District Court denied Williams' petition. 528 F. Supp. 664 (1981).
"We hold that the State has not met the first requirement. It is therefore unnecessary to decide whether the state courts' finding that the body would have been discovered anyway is fairly supported by the record. It is also unnecessary to decide whether the State must prove the two elements of the exception by clear and [467 U.S. 431, 440] convincing evidence, as defendant argues, or by a preponderance of the evidence, as the state courts held.
"The state trial court, in denying the motion to suppress, made no finding one way or the other on the question of bad faith. Its opinion does not even mention the issue and seems to proceed on the assumption - contrary to the rule of law later laid down by the Supreme Court of Iowa - that the State needed to show only that the body would have been discovered in any event. The Iowa Supreme Court did expressly address the issue . . . and a finding by an appellate court of a state is entitled to the same presumption of correctness that attaches to trial-court findings under 28 U.S.C. 2254(d). . . . We conclude, however, that the state Supreme Court's finding that the police did not act in bad faith is not entitled to the shield of 2254(d) . . . ." Id., at 1169-1170 (footnotes omitted).
We granted the State's petition for certiorari, 461 U.S. 956 (1983), and we reverse.
The Iowa Supreme Court correctly stated that the "vast majority" of all courts, both state and federal, recognize an inevitable discovery exception to the exclusionary rule. 2 We [467 U.S. 431, 441] are now urged to adopt and apply the so-called ultimate or inevitable discovery exception to the exclusionary rule.
Williams contends that evidence of the body's location and condition is "fruit of the poisonous tree," i. e., the "fruit" or product of Detective Leaming's plea to help the child's parents give her "a Christian burial," which this Court had already held equated to interrogation. He contends that admitting the challenged evidence violated the Sixth Amendment whether it would have been inevitably discovered or not. Williams also contends that, if the inevitable discovery doctrine is constitutionally permissible, it must include a threshold showing of police good faith.
The doctrine requiring courts to suppress evidence as the tainted "fruit" of unlawful governmental conduct had its genesis in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); there, the Court held that the exclusionary rule applies not only to the illegally obtained evidence itself, but also to other incriminating evidence derived from the primary evidence. The holding of Silverthorne was carefully limited, however, for the Court emphasized that such information does not automatically become "sacred and inaccessible." Id., at 392.
"If knowledge of [such facts] is gained from an independent source, they may be proved like any others . . . ." Ibid. (emphasis added).
"We need not hold that all evidence is `fruit of the poisonous tree' simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Id., at 487-488 (emphasis added) (quoting J. Maguire, Evidence of Guilt 221 (1959)).
The Court thus pointedly negated the kind of good-faith requirement advanced by the Court of Appeals in reversing the District Court.
The core rationale consistently advanced by this Court for extending the exclusionary rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from [467 U.S. 431, 443] violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.
By contrast, the derivative evidence analysis ensures that the prosecution is not put in a worse position simply because of some earlier police error or misconduct. The independent source doctrine allows admission of evidence that has been discovered by means wholly independent of any constitutional violation. That doctrine, although closely related to the inevitable discovery doctrine, does not apply here; Williams' statements to Leaming indeed led police to the child's body, but that is not the whole story. The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred. 4 See Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 79 (1964); Kastigar v. United States, 406 U.S. 441, 457 , 458-459 (1972). When the challenged evidence has an independent source, exclusion of such evidence would put the police in a worse position than they would have been in absent any error or violation. There [467 U.S. 431, 444] is a functional similarity between these two doctrines in that exclusion of evidence that would inevitably have been discovered would also put the government in a worse position, because the police would have obtained that evidence if no misconduct had taken place. Thus, while the independent source exception would not justify admission of evidence in this case, its rationale is wholly consistent with and justifies our adoption of the ultimate or inevitable discovery exception to the exclusionary rule.
The requirement that the prosecution must prove the absence of bad faith, imposed here by the Court of Appeals, would place courts in the position of withholding from juries relevant and undoubted truth that would have been available to police absent any unlawful police activity. Of course, that view would put the police in a worse position than they would have been in if no unlawful conduct had transpired. And, of equal importance, it wholly fails to take into account the enormous societal cost of excluding truth in the search for truth in the administration of justice. Nothing in this Court's prior holdings supports any such formalistic, pointless, and punitive approach.
"[T]he concept of effective deterrence assumes that the police officer consciously realizes the probable consequences of a presumably impermissible course of conduct" (opinion concurring in judgment).
On the other hand, when an officer is aware that the evidence will inevitably be discovered, he will try to avoid engaging in [467 U.S. 431, 446] any questionable practice. In that situation, there will be little to gain from taking any dubious "shortcuts" to obtain the evidence. Significant disincentives to obtaining evidence illegally - including the possibility of departmental discipline and civil liability - also lessen the likelihood that the ultimate or inevitable discovery exception will promote police misconduct. See Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 397 (1971). In these circumstances, the societal costs of the exclusionary rule far outweigh any possible benefits to deterrence that a good-faith requirement might produce.
Williams contends that because he did not waive his right to the assistance of counsel, the Court may not balance competing values in deciding whether the challenged evidence was properly admitted. He argues that, unlike the exclusionary rule in the Fourth Amendment context, the essential purpose of which is to deter police misconduct, the Sixth Amendment exclusionary rule is designed to protect the right to a fair trial and the integrity of the factfinding process. Williams contends that, when those interests are at stake, the societal costs of excluding evidence obtained from responses presumed involuntary are irrelevant in determining whether such evidence should be excluded. We disagree.
Exclusion of physical evidence that would inevitably have been discovered adds nothing to either the integrity or fairness of a criminal trial. The Sixth Amendment right to counsel protects against unfairness by preserving the adversary process in which the reliability of proffered evidence may be tested in cross-examination. See United States v. Ash, 413 U.S. 300, 314 (1973); Schneckloth v. Bustamonte, 412 U.S. 218, 241 (1973). Here, however, Detective Leaming's conduct did nothing to impugn the reliability of the evidence in question - the body of the child and its condition as it was found, articles of clothing found on the body, and the autopsy. No one would seriously contend that the presence of counsel in the police car when Leaming appealed to Williams' [467 U.S. 431, 447] decent human instincts would have had any bearing on the reliability of the body as evidence. Suppression, in these circumstances, would do nothing whatever to promote the integrity of the trial process, but would inflict a wholly unacceptable burden on the administration of criminal justice.
Nor would suppression ensure fairness on the theory that it tends to safeguard the adversary system of justice. To assure the fairness of trial proceedings, this Court has held that assistance of counsel must be available at pretrial confrontations where "the subsequent trial [cannot] cure a[n otherwise] one-sided confrontation between prosecuting authorities and the uncounseled defendant." United States v. Ash, supra, at 315. Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place. However, if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings. In that situation, the State has gained no advantage at trial and the defendant has suffered no prejudice. Indeed, suppression of the evidence would operate to undermine the adversary system by putting the State in a worse position than it would have occupied without any police misconduct. Williams' argument that inevitable discovery constitutes impermissible balancing of values is without merit.
"[t]he pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon [467 U.S. 431, 448] an offender for crimes the most flagitious." Id., at 23, 150 N. E., at 588.
Some day, Cardozo speculated, some court might press the exclusionary rule to the outer limits of its logic - or beyond - and suppress evidence relating to the "body of a murdered" victim because of the means by which it was found. Id., at 23-24, 150 N. E., at 588. Cardozo's prophecy was fulfilled in Killough v. United States, 114 U.S. App. D.C. 305, 309, 315 F.2d 241, 245 (1962) (en banc). But when, as here, the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible.
The Court of Appeals did not find it necessary to consider whether the record fairly supported the finding that the volunteer search party would ultimately or inevitably have discovered the victim's body. However, three courts independently reviewing the evidence have found that the body of the child inevitably would have been found by the searchers. Williams challenges these findings, asserting that the record contains only the "post hoc rationalization" that the search efforts would have proceeded two and one-half miles into Polk County where Williams had led police to the body.
When that challenge was made at the suppression hearing preceding Williams' second trial, the prosecution offered the testimony of Agent Ruxlow of the Iowa Bureau of Criminal Investigation. Ruxlow had organized and directed some 200 volunteers who were searching for the child's body. Tr. of Hearings on Motion to Suppress in State v. Williams, No. CR 55805, p. 34 (May 31, 1977). The searchers were instructed "to check all the roads, the ditches, any culverts . . . . If they came upon any abandoned farm buildings, they were instructed to go onto the property and search those abandoned farm buildings or any other places where a [467 U.S. 431, 449] small child could be secreted." Id., at 35. Ruxlow testified that he marked off highway maps of Poweshiek and Jasper Counties in grid fashion, divided the volunteers into teams of four to six persons, and assigned each team to search specific grid areas. Id., at 34. Ruxlow also testified that, if the search had not been suspended because of Williams' promised cooperation, it would have continued into Polk County, using the same grid system. Id., at 36, 39-40. Although he had previously marked off into grids only the highway maps of Poweshiek and Jasper Counties, Ruxlow had obtained a map of Polk County, which he said he would have marked off in the same manner had it been necessary for the search to continue. Id., at 39.
The search had commenced at approximately 10 a. m. and moved westward through Poweshiek County into Jasper County. At approximately 3 p. m., after Williams had volunteered to cooperate with the police, Detective Leaming, who was in the police car with Williams, sent word to Ruxlow and the other Special Agent directing the search to meet him at the Grinnell truck stop and the search was suspended at that time. Id., at 51-52. Ruxlow also stated that he was "under the impression that there was a possibility" that Williams would lead them to the child's body at that time. Id., at 61. The search was not resumed once it was learned that Williams had led the police to the body, id., at 57, which was found two and one-half miles from where the search had stopped in what would have been the easternmost grid to be searched in Polk County, id., at 39. There was testimony that it would have taken an additional three to five hours to discover the body if the search had continued, id., at 41; the body was found near a culvert, one of the kinds of places the teams had been specifically directed to search.
[ Footnote 1 ] Iowa law provides for de novo appellate review of factual as well as legal determination in cases raising constitutional challenges. See, e. g., Armento v. Baughman, 290 N. W. 2d 11, 15 (Iowa 1980); State v. Ege, 274 N. W. 2d 350, 352 (Iowa 1979).
[ Footnote 2 ] Every Federal Court of Appeals having jurisdiction over criminal matters, including the Eighth Circuit in a case decided after the instant case, has endorsed the inevitable discovery doctrine. See Wayne v. United States, 115 U.S. App. D.C. 234, 238, 318 F.2d 205, 209, cert. denied, 375 U.S. 860 (1963); United States v. Bienvenue, 632 F.2d 910, 914 (CA1 1980); United States v. Fisher, 700 F.2d 780, 784 (CA2 1983); Government of Virgin Islands v. Gereau, 502 F.2d 914, 927-928 (CA3 1974), cert. denied, 420 U.S. 909 (1975); United States v. Seohnlein, 423 F.2d 1051, 1053 (CA4), cert. denied, 399 U.S. 913 (1970); United States v. Brookins, 614 F.2d 1037, 1042, 1044 (CA5 1980); Papp v. Jago, 656 F.2d 221, 222 (CA6 1981); United States ex rel. Owens v. Twomey, 508 F.2d 858, 865-866 (CA7 1974); United States v. Apker, 705 F.2d 293, 306-307 (CA8 1983); [467 U.S. 431, 441] United States v. Schmidt, 573 F.2d 1057, 1065-1066, n. 9 (CA9), cert. denied, 439 U.S. 881 (1978); United States v. Romero, 692 F.2d 699, 704 (CA10 1982); United States v. Roper, 681 F.2d 1354, 1358 (CA11 1982).
[ Footnote 3 ] In Murphy v. Waterfront Comm'n of New York Harbor, 378 U.S. 52, 79 (1964), the Court held that "a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him." The Court added, however, that "[o]nce a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence." Id., at 79, n. 18; see id., at 103 (WHITE, J., concurring). Application of the independent source doctrine in the Fifth Amendment context was reaffirmed in Kastigar v. United States, 406 U.S. 441, 460 -461 (1972).
[ Footnote 4 ] The ultimate or inevitable discovery exception to the exclusionary rule is closely related in purpose to the harmless-error rule of Chapman v. California, 386 U.S. 18, 22 (1967). The harmless-constitutional-error rule "serve[s] a very useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial." The purpose of the inevitable discovery rule is to block setting aside convictions that would have been obtained without police misconduct.
[ Footnote 5 ] As to the quantum of proof, we have already established some relevant guidelines. In United States v. Matlock, 415 U.S. 164, 178 , n. 14 (1974) (emphasis added), we stated that "the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence." In Lego v. Twomey, 404 U.S. 477, 488 (1972), we observed "from our experience [that] no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence" and held that the prosecution must prove by a preponderance of the evidence that a confession sought to be used at trial was voluntary. We are unwilling to impose added burdens on the already difficult task of proving guilt in criminal cases by enlarging the barrier to placing evidence of unquestioned truth before juries.
Williams argues that the preponderance-of-the-evidence standard used by the Iowa courts is inconsistent with United States v. Wade, 388 U.S. 218 (1967). In requiring clear and convincing evidence of an independent source for an in-court identification, the Court gave weight to the effect an uncounseled pretrial identification has in "crystalliz[ing] the witnesses' identification of the defendant for future reference." Id., at 240. The [467 U.S. 431, 445] Court noted as well that possible unfairness at the lineup "may be the sole means of attack upon the unequivocal courtroom identification," ibid., and recognized the difficulty of determining whether an in-court identification was based on independent recollection unaided by the lineup identification, id., at 240-241. By contrast, inevitable discovery involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment and does not require a departure from the usual burden of proof at suppression hearings.
[ Footnote 6 ] Williams had presented to the District Court newly discovered evidence consisting of "previously overlooked photographs of the body at the site of its discovery and recent deposition testimony of the investigative officer in charge of the search [Ruxlow]." 528 F. Supp., at 671, n. 6. He contends that Ruxlow's testimony was no more than "post hoc rationalization" and challenges Ruxlow's credibility. However, the state trial court and Federal District Court that heard Ruxlow's testimony credited it. The District Court found that the newly discovered evidence "neither adds much to nor subtracts much from the suppression hearing evidence." Ibid.
[ Footnote 7 ] In view of our holding that the challenged evidence was admissible under the inevitable discovery exception to the exclusionary rule, we find it unnecessary to decide whether Stone v. Powell, 428 U.S. 465 (1976), should be extended to bar federal habeas corpus review of Williams' Sixth Amendment claim, and we express no view on that issue.
I join fully in the opinion of the Court. I write separately only to point out that many of Justice Stevens' remarks are beside the point when it is recalled that Brewer v. Williams, 430 U.S. 387 (1977), was a 5-4 decision and that four Members of the Court, including myself, were of the view that Detective Leaming had done nothing wrong at all, let alone anything unconstitutional. Three of us observed: "To anyone not lost in the intricacies of the prophylactic [467 U.S. 431, 451] rules of Miranda v. Arizona, the result in this case seems utterly senseless . . . ." Id., at 438. It is thus an unjustified reflection on Detective Leaming to say that he "decide[d] to dispense with the requirements of law," post, this page, or that he decided "to take procedural shortcuts instead of complying with the law," post, at 457. He was no doubt acting as many competent police officers would have acted under similar circumstances and in light of the then-existing law. That five Justices later thought he was mistaken does not call for making him out to be a villain or for a lecture on deliberate police misconduct and its resulting costs to society.
This litigation is exceptional for at least three reasons. The facts are unusually tragic; it involves an unusually clear violation of constitutional rights; and it graphically illustrates the societal costs that may be incurred when police officers decide to dispense with the requirements of law. Because the Court does not adequately discuss any of these aspects of the case, I am unable to join its opinion.
"The pressures on state executive and judicial officers charged with the administration of the criminal law are great, especially when the crime is murder and the victim a small child. But it is precisely the predictability of those pressures that makes imperative a resolute loyalty to the guarantees that the Constitution extends to us all." Brewer v. Williams, 430 U.S. 387, 406 (1977) (Williams I).
There can be no denying that the character of the crime may have an impact on the decisional process. As the Court [467 U.S. 431, 452] was required to hold, however, that does not permit any court to condone a violation of constitutional rights. 1 Today's decision is no more an ad hoc response to the pressures engendered by the special facts of the case than was Williams I. It was the majority in Williams I that recognized that "evidence of where the body was found and of its condition might well be admissible on the theory that the body would have been discovered in any event, even had incriminating statements not been elicited from Williams." Id., at 407, n. 12. It was the author of today's opinion of the Court who characterized this rule of law as a "remarkable" and "unlikely theory." Id., at 416-417, n. 1 (BURGER, C. J., dissenting). The rule of law that the Court adopts today has an integrity of its own and is not merely the product of the hydraulic pressures associated with hard cases or strong words.
The constitutional violation that gave rise to the decision in Williams I is neither acknowledged nor fairly explained in the Court's opinion. Yet the propriety of admitting evidence relating to the victim's body can only be evaluated if that constitutional violation is properly identified.
Before he was taken into custody, Williams, as a recent escapee from a mental hospital who had just abducted and murdered a small child, posed a special threat to public safety. Acting on his lawyer's advice, Williams surrendered to the Davenport police. The lawyer notified the Des Moines police of Williams' imminent surrender, and police officials, [467 U.S. 431, 453] in the presence of Detective Leaming, agreed that Williams would not be questioned while being brought back from Davenport. Williams was advised of this agreement by his attorney. After he was arraigned in Davenport, Williams conferred with another lawyer who was acting as local counsel. This lawyer reminded Williams that he would not be questioned. When Detective Leaming arrived in Davenport, local counsel stressed that the agreement was to be carried out and that Williams was not to be questioned. Detective Leaming then took custody of respondent, and denied counsel's request to ride to Des Moines in the police car with Williams. The "Christian burial speech" occurred during the ensuing trip. 2 As JUSTICE POWELL succinctly observed, this was a case "in which the police deliberately took advantage of an inherently coercive setting in the absence of counsel, contrary to their express agreement." Id., at 414, n. 2 (concurring opinion).
The Sixth Amendment guarantees that the conviction of the accused will be the product of an adversarial process, rather than the ex parte investigation and determination by the prosecutor. 3 Williams I grew out of a line of cases in which this Court made it clear that the adversarial process protected by the Sixth Amendment may not be undermined by the strategems of the police.
"Our Constitution guarantees the assistance of counsel to a man on trial for his life in an orderly courtroom, presided over by a judge, open to the public, and protected by all the procedural safeguards of the law. Surely a Constitution which promises that much can vouchsafe no less to the same man under midnight inquisition in the squad room of a police station." Id., at 327 (Stewart, J., concurring, joined by Douglas and BRENNAN, JJ.).
As Justice Douglas asked: "[W]hat use is a defendant's right to effective counsel at every stage of a criminal case if, while he is held awaiting trial, he can be questioned in the absence of counsel until he confesses? In that event the secret trial in the police precincts effectively supplants the public trial guaranteed by the Bill of Rights." Id., at 326 (Douglas, J., concurring, joined by Black and BRENNAN, JJ.).
Once the constitutional violation is properly identified, the answers to the questions presented in this case follow readily. Admission of the victim's body, if it would have been discovered anyway, means that the trial in this case was not the product of an inquisitorial process; that process was untainted by illegality. The good or bad faith of Detective Leaming is therefore simply irrelevant. If the trial process was not tainted as a result of his conduct, this defendant received the type of trial that the Sixth Amendment envisions. See United States v. Morrison, 449 U.S. 361 (1981); Weatherford v. Bursey, 429 U.S. 545 (1977); United States v. Wade, 388 U.S. 218, 240 -243 (1967). Generalizations about the exclusionary rule employed by the majority, see ante, at 443-448, simply do not address the primary question in the case.
The majority is correct to insist that any rule of exclusion not provide the authorities with an incentive to commit violations of the Constitution. Ante, at 445-446. If the inevitable discovery rule provided such an incentive by permitting the prosecution to avoid the uncertainties inherent in its search for evidence, it would undermine the constitutional guarantee itself, and therefore be inconsistent with the deterrent purposes of the exclusionary rule. 7 But when the burden of proof on the inevitable discovery question is placed on the prosecution, ante, at 444, it must bear the risk of error in the determination made necessary by its constitutional violation. The uncertainty as to whether the body would [467 U.S. 431, 457] have been discovered can be resolved in its favor here only because, as the Court explains ante, at 448-450, petitioner adduced evidence demonstrating that at the time of the constitutional violation an investigation was already under way which, in the natural and probable course of events, would have soon discovered the body. This is not a case in which the prosecution can escape responsibility for a constitutional violation through speculation; to the extent uncertainty was created by the constitutional violation the prosecution was required to resolve that uncertainty through proof. 8 Even if Detective Leaming acted in bad faith in the sense that he deliberately violated the Constitution in order to avoid the possibility that the body would not be discovered, the prosecution ultimately does not avoid that risk; its burden of proof forces it to assume the risk. The need to adduce proof sufficient to discharge its burden, and the difficulty in predicting whether such proof will be available or sufficient, means that the inevitable discovery rule does not permit state officials to avoid the uncertainty they would have faced but for the constitutional violation.
The majority refers to the "societal cost" of excluding probative evidence. Ante, at 445. In my view, the more relevant cost is that imposed on society by police officers who decide to take procedural shortcuts instead of complying with the law. What is the consequence of the shortcut that Detective Leaming took when he decided to question Williams in this case and not to wait an hour or so until he arrived in [467 U.S. 431, 458] Des Moines? 9 The answer is years and years of unnecessary but costly litigation. Instead of having a 1969 conviction affirmed in routine fashion, the case is still alive 15 years later. Thanks to Detective Leaming, the State of Iowa has expended vast sums of money and countless hours of professional labor in his defense. That expenditure surely provides an adequate deterrent to similar violations; the responsibility for that expenditure lies not with the Constitution, but rather with the constable.
"Nothing we write, no matter how well reasoned or forcefully expressed, can bring back the victim of this tragedy or undo the consequences of the official neglect which led to the respondent's escape from a state mental institution. The emotional aspects of the case make it difficult to decide dispassionately, but do not qualify our obligation to apply the law with an eye to the future as well as with concern for the result in the particular case before us." 430 U.S., at 415 (concurring opinion).
[ Footnote 2 ] These are the facts found in Williams I. See 430 U.S., at 390 -393. As Professor Kamisar has demonstrated, there are a number of unexplained ambiguities in the record. Kamisar, Foreword: Brewer v. Williams - A Hard Look at a Discomfiting Record, 66 Geo. L. J. 209 (1977). Nevertheless, this account of the facts was the basis for Williams I, and neither party seeks reexamination of those findings.
[ Footnote 3 ] See, e. g., Strickland v. Washington, 466 U.S. 668, 685 -687 (1984); United States v. Cronic, 466 U.S. 648, 655 -657 (1984); Polk County v. Dodson, 454 U.S. 312, 318 (1981); Herring v. New York, 422 U.S. 853, 862 (1975); Anders v. California, 386 U.S. 738, 743 (1967).
[ Footnote 4 ] "The defendant placed his trust in an experienced Iowa trial lawyer who in turn trusted the Iowa law enforcement authorities to honor a commitment made during negotiations which led to the apprehension of a potentially dangerous person. Under any analysis, this was a critical stage [467 U.S. 431, 455] of the proceeding in which the participation of an independent professional was of vital importance to the accused and to society. At this stage - as in countless others in which the law profoundly affects the life of the individual - the lawyer is the essential medium through which the demands and commitments of the sovereign are communicated to the citizen. If, in the long run, we are seriously concerned about the individual's effective representation by counsel, the State cannot be permitted to dishonor its promise to this lawyer." 430 U.S., at 415 (STEVENS, J., concurring) (footnote omitted). See also id., at 401, n. 8.
[ Footnote 5 ] "The whole point of Massiah is the prevention of the state from taking advantage of an uncounseled defendant once sixth amendment rights attach. The Christian burial speech was an attempt to take advantage of Williams. The attempt itself is what Massiah prohibits. The attempt itself violates the constitutional mandate that the system proceed, after some point, only in an accusatorial manner." Grano, Rhode Island v. Innis: A Need to Reconsider the Constitutional Premises Underlying the Law of Confessions, 17 Am. Crim. L. Rev. 1, 35 (1979) (emphasis in original).
[ Footnote 6 ] See also 430 U.S., at 409 (MARSHALL, J., concurring). The theme of THE CHIEF JUSTICE'S dissenting opinion in Williams I seems to permeate the opinion he has written for the Court today, even to the extent of again using the familiar hypothetical found in People v. Defore. Compare the discussion of Judge Cardozo's "grim prophecy," 430 U.S., at 416 -417 (dissenting opinion), with ante, at 447-448. See also Stone v. Powell, 428 U.S. 465, 502 (1976) (BURGER, C. J., concurring); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 413 , and n. 3 (1971) (BURGER, C. J., dissenting); Killough v. United States, 114 U.S. App. D.C. 305, 323, 315 F.2d 241, 259 (1962) (en banc) (Burger, J., dissenting).
[ Footnote 7 ] See Stovall v. Denno, 388 U.S. 293, 297 (1967); Gilbert v. California, 388 U.S. 263, 272 -273 (1967). See also Moore v. Illinois, 434 U.S. 220 (1977). See generally, e. g., Stone v. Powell, 428 U.S., at 484 ; United States v. Janis, 428 U.S. 433, 443 , n. 12 (1976); United States v. Calandra, 414 U.S. 338, 347 -348 (1974); Terry v. Ohio, 392 U.S. 1, 29 (1968); Tehan v. United States ex rel. Shott, 382 U.S. 406, 413 (1966); Mapp v. Ohio, 367 U.S. 643, 656 (1961); Elkins v. United States, 364 U.S. 206, 217 (1960).
[ Footnote 8 ] I agree with the majority's holding that the prosecution must prove that the evidence would have been inevitably discovered by a preponderance of the evidence rather than by clear and convincing evidence, ante, at 444-445, n. 5. An inevitable discovery finding is based on objective evidence concerning the scope of the ongoing investigation which can be objectively verified or impeached. Hence an extraordinary burden of proof is not needed in order to preserve the defendant's ability to subject the prosecution's case to the meaningful adversarial testing required by the Sixth Amendment. See United States v. Cronic, 466 U.S., at 655 -657.
[ Footnote 9 ] In this connection, it is worth noting, as JUSTICE MARSHALL did in Williams I, that in light of the assistance that respondent's attorney had provided to the Des Moines police, it seems apparent that the lawyer intended to learn the location of the body from his client and then reveal it to the police. See 430 U.S., at 407 -408 (concurring opinion). Thus, the need for a shortcut was practically nonexistent.
In Brewer v. Williams, 430 U.S. 387 (1977), we held that the respondent's state conviction for first-degree murder had to be set aside because it was based in part on statements obtained from the respondent in violation of his right to the assistance of counsel guaranteed by the Sixth and Fourteenth Amendments. At the same time, we noted that, "[w]hile neither Williams' incriminating statements themselves nor any testimony describing his having led the police to the victim's body can constitutionally be admitted into evidence, evidence of where the body was found and of its condition might well be admissible on the theory that the body would have been discovered in any event." Id., at 407, n. 12.
To the extent that today's decision adopts this "inevitable discovery" exception to the exclusionary rule, it simply acknowledges a doctrine that is akin to the "independent source" exception first recognized by the Court in Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920). See United States v. Wade, 388 U.S. 218, 242 (1967); [467 U.S. 431, 459] Wong Sun v. United States, 371 U.S. 471, 487 (1963). In particular, the Court concludes that unconstitutionally obtained evidence may be admitted at trial if it inevitably would have been discovered in the same condition by an independent line of investigation that was already being pursued when the constitutional violation occurred. As has every Federal Court of Appeals previously addressing this issue, see ante, at 440-441, n. 2, I agree that in these circumstances the "inevitable discovery" exception to the exclusionary rule is consistent with the requirements of the Constitution.
In its zealous efforts to emasculate the exclusionary rule, however, the Court loses sight of the crucial difference between the "inevitable discovery" doctrine and the "independent source" exception from which it is derived. When properly applied, the "independent source" exception allows the prosecution to use evidence only if it was, in fact, obtained by fully lawful means. It therefore does no violence to the constitutional protections that the exclusionary rule is meant to enforce. The "inevitable discovery" exception is likewise compatible with the Constitution, though it differs in one key respect from its next of kin: specifically, the evidence sought to be introduced at trial has not actually been obtained from an independent source, but rather would have been discovered as a matter of course if independent investigations were allowed to proceed.

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