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Thank you for your interest in Scientific BioTech GmbH. The protection of personal data ranks among our highest priorities. Please therefore read the following Data Protection Policy.
The Data Protection Policy concerns personal data. Under the European General Data Protection Policy (GDPR) and the German Federal Data Protection Act (BDSG), personal data are pieces of information about the personal or material circumstances of an identified or identifiable natural person. This includes information such as your name, postal address and telephone number, for example, and may also cover usage data such as your IP address.
This Data Protection Policy applies to all websites for which Scientific BioTech GMBH is responsible. Our websites may, however, contain links to other companies to which our Data Protection Policy does not apply. Scientific BioTech GmbH guarantees the confidentiality of your personal data.
Cookies are small text files that are stored on your computer, tablet or cell phone. They do NOT pose any threat to your computer or your security and, contrary to popular but mistaken opinion, they have nothing to do with viruses, trojans or similar malware. Cookies help the websites that you visit to “remember” you and the way you use the website when you return to it, which has a positive effect on your online experience.
Your visit to our website is logged. This website uses so-called “cookies”, which serve to make our website as a whole more user-friendly, effective and safe – in the context, for example, of speeding up navigation through the site. Cookies also enable us to measure the frequency of access to our pages and general navigation on them. Cookies are small text files that are stored on your computer. They record the IP address currently being used by your PC, the date and time, the browser type and operating system of your PC and the pages you look at. We are not able to link this information to a specific person. These data are collected only for the purposes of data security. No other evaluation of the data takes place – with the exception of analysis for statistical purposes, which is carried out in anonymized form. No personal surfing profile or similar is created or processed either. Of course, you can refuse to accept cookies at any time if your browser allows you to do so. Please note, however, that certain functions of this website may not be available or may only be usable to a limited extent if your browser is set to reject cookies (from our website).
If you would like to find out more about cookies, plenty of information is available to you online at any time.
You can access the homepage of our website anonymously and navigate through the site without disclosing any personal data. Visitors cannot communicate with one another via our website and cannot post any information that could be accessed by other visitors.
Scientific BioTech undertakes to process and use personal data that are processed and used in connection with the use of the website www.sanakin.eu only for the purposes of fulfilling the service and to take all necessary steps and measures to ensure that data secrecy and data security are guaranteed at all times. Websites of third parties to which an external link is provided are not covered by this policy. Of course, we comply with the statutory provisions of the German Data Protection Act (BDSG) and Telemedia Act (TMG) and with other regulations of data protection law.
We comply with the principle of data processing for specific purposes and collect, process and store your personal data only for the purposes for which you have provided them to us. Your personal data will not be passed on to third parties without your express consent, unless this is required to provide the service or execute a contract. Similarly, they will be communicated to public bodies and authorities only in the context of legal obligations to disclose information or if we are obliged to do so by a court order.
We also take data protection within our company very seriously. We have placed our employees and the service providers appointed by us under an obligation to maintain confidentiality and to comply with the provisions of data protection law.
When users make contact with SCIENTIFIC BIOTECH GMBH (using the contact form, by e-mail or telephone, for example), their details are stored only for the purposes of processing their inquiry and in case there are any follow-up questions.
Personal data that you communicate to us over the Internet are processed only for correspondence or for the purpose for which you have provided them to us. You can object to the use of your personal data at any time.
Sending out newsletters or other advertising materials and implementing other advertising campaigns, provided that you have given us the corresponding consent.
Provision of personal data when you visit our website is not prescribed either by law or contract and is not required to conclude a contract. You are also not obliged to provide your personal data when you visit our website, although the IP address of your computer is recorded automatically when you access the site.
These data will not be sold or passed on to third parties under any circumstances other than those specified above.
Your data will be transmitted to countries outside the European Union (third states or third countries) only insofar as this is required to fulfill a contract, you have given us consent to do so or in the context of commissioned data processing on the basis of a legitimate interest.
When we do use service providers in a third country, they are obliged both to observe our written instructions and, by agreeing to the EU standard contractual clauses, to maintain the level of data protection that obtains in Europe.
It may be that content from third parties is integrated into this website, such as videos from YouTube, map materials from Google Maps, RSS feeds and graphics from other websites. This is always on the basis that the providers of that content (hereinafter referred to as “Third-Party Providers”) record the IP addresses of users. Without an IP address, they are unable to send the content to the browser of the user concerned. The IP address is therefore required to display this content. We attempt only to use content for which the respective Third-Party Provider requires the IP address solely to deliver that content. However, we have no control over the Third-Party Provider if it stores the IP address for statistical purposes, for example. If we are aware of this, we will notify the users of it.
In order to optimize the benefits of this website to you, we use the analytical tool Google Analytics. This is a standard analytical tool of Google Inc., 1600 Amphitheatre Parkway Mountain View, CA 94043, USA. Google Analytics. For its analysis, Google uses so-called “cookies”, by means of which it collects and analyzes information about user behavior.
Your data are analyzed anonymously. The Google tracking code has been extended on our website so that your IP address is always truncated by Google, meaning that the last digits are removed before the analysis takes place. This IP anonymization takes place shortly after the user IP address has been sent to the Analytics data network for recording. In this case, the full IP address is therefore never written to the hard drive. Truncation is usually carried out on servers within Member States of the European Union or in other countries that are signatories to the Agreement on the European Economic Area. The information generated by cookies about your use of this website is sent to a Google server in the USA only after it has been anonymized and it is stored there. It is not possible to identify you, and combination of these data with any data already held by Google is fundamentally impossible.
Recording, anonymization and analysis of the user data is commissioned in writing by the website operator (see Legal notice) and carried out by Google in accordance with Section 11 BDSG.
When you access one of our websites that includes a plugin of this sort, your browser establishes a direct connection with the Facebook servers. The content of the plugin is sent to your browser directly by Facebook and integrated into the website by it. We therefore have no influence over the extent of the data that Facebook collects by means of this plugin and we provide you with information about it to the best of our knowledge.
As a result of integration of the plugin, Facebook is notified that you have accessed the corresponding page of our website. If you are logged into Facebook, Facebook can associate your visit with your Facebook account. If you interact with the plugin, for example by clicking on the Like button or submitting a post, the corresponding information is sent directly to Facebook by your browser and is stored there. If you do not have a Facebook account, there is still a possibility that Facebook will collect and store your IP address.
If you have a Facebook account and do not want Facebook to collect data about you via our website and link them with the data Facebook holds about you, you must log out of Facebook before you visit our website. It is also possible to block Facebook social plugins with add-ons for your browser, with “Facebook Blocker”, for example.
Remarketing tags of the social network Facebook, 1601 South California Avenue, Palo Alto, CA 94304, USA, are integrated into our pages. When you visit our site, the remarketing tags establish a direct connection between your browser and the Facebook server. In this way, Facebook is notified that you have visited our site and is provided with your IP address. As a result, Facebook can associate your visit to our site with your user account. We can use the information we receive in this way to display Facebook ads. We wish to point out that, as the provider of the website, we have no knowledge of the content of the data transmitted or of how they are used by Facebook.
If you do not want data to be collected via Custom Audience, you can deactivate Custom Audience in your Facebook settings.
Our website uses functions of the LinkedIn network. The provider is the LinkedIn Corporation, 2029 Stierlin Court, Mountain View, CA 94043, USA. Every time one of our pages that contains the LinkedIn functions is accessed, a connection is established to the LinkedIn servers. LinkedIn is informed that you have visited our website with your IP address. If you click on the LinkedIn “Recommend” button while you are logged into LinkedIn, LinkedIn is able to associate your visit to our website with you and your user account. We wish to point out that, as the provider of the website, we have no knowledge of the content of the data transmitted or of how they are used by LinkedIn.
We process and store your personal data as required for the duration of our business relationship, which may, for example, include initiation and processing of the contract. We wish to point out in this context that the business relationship is a continuing obligation which is usually established for a number of years.
In addition, we are subject to various retention and documentation obligations on the basis, for example, of the German Commercial Code (HGB) and Tax Code (AO). The retention and documentation periods specified there range from two to ten years.
Finally, the storage period is also determined by the statutory expiry periods, which are usually three years pursuant to Sections 195 ff of the German Civil Code (BGB), but in certain cases can even extend to thirty years.
Every data subject has the right to information under Art. 15 GDPR, the right to rectification under Art. 16 GDPR, the right to erasure (“the right to be forgotten”) under Art. 17 GDPR, the right to restriction of processing (blocking) under Art. 18 GDPR, the right to object under Art. 21 GDPR (you can find separate information about this at the end of this Data Protection Policy) and the right to data portability under Art. 20 GDPR. The restrictions pursuant to Sections 34 and 35 BDSG apply to the right to information and the right to erasure. Finally, you have the right to lodge a complaint with the supervisory authorities under Art. 77 GDPR, in conjunction with Section 19 BDSG.
If you have given us consent to specific processing of your personal data, you may withdraw it at any time with effect from that point forward. This also applies to declarations of consent that you gave to us before the GDPR came into force, i.e. before 25 May 2018. Withdrawal of consent does not affect the lawfulness of our processing activities up to the point of withdrawal.
In the event of a change to the statutory regulations or to our service (new electronic products or services), it may be necessary to adapt this Data Protection Policy. The latest version of the data protection provisions can be viewed at any time by following the “Data Protection Policy” link.
You can obtain information about the data we have stored about you at any time, free of charge and without specifying the reasons. You can block, rectify or arrange for erasure of the data we have collected about you and object to pseudonymized data collection and storage for the purposes of optimization of our website. You can also withdraw the consent that you have given us to collect and use data at any time without specifying reasons (Art. 6 (2) (e) GDPR (data processing in the public interest) and Art. 6 (1) (f) GDPR (data processing on the basis of a legitimate interest)). Please use the contact address provided in the Legal Notice for this purpose. We will be happy to answer any further questions you may have about our Data Protection Policy and processing of your personal data at any time.

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This post is the second in the Jesner v Arab Bank special series on this blog. The first one is here.
It is a pleasure to welcome back Alessandra De Tommaso as a guest poster on ‘Rights as Usual’. Alessandra is a PhD candidate at Middlesex University School of Law in London. She works on the challenges arising from corporate criminal liability under international criminal law. This post is hers.
On 24 April 2018, the U.S. Supreme Court delivered its opinion in the case Jesner v Arab Bank, closing the door to future litigation against foreign corporations under the Alien Tort Statute (ATS). For those who believe in corporate accountability for human rights violations, this decision is a setback. But irrespective of one’s views, the decision is also incorrect. This post focuses on the Court’s misguided use of the practice of international criminal tribunals to exclude the possibility to sue (foreign) corporations under the ATS. It argues that international tribunals’ lack of authority to impose criminal liability on legal entities cannot be used as a reason to foreclose the civil liability of corporations at the domestic level.
Here the Court confuses the lack of a mean of enforcement at the international level with the absence of an international norm (see Dr. Nadia Bernaz’s post here). But leaving aside this misconception, the majority’s reasoning is erroneous from another perspective. The Court does not take into consideration that the international tribunals mentioned in the judgement have the authority to impose criminal liability only. Civil liability is not addressed in the statutes of any of these tribunals; neither was it discussed during the negotiations leading to their adoption. This point was correctly raised by Ambassador David J. Scheffer in his Brief as Amicus Curiae of 26 June 2017. Nonetheless, the Court assumed that the lack of an enforcing mechanism able to impose criminal liability on legal entities at the international level can affect the possibility of imposing civil liability at the domestic level. In doing so, the Court fails to distinguish between criminal liability under international criminal law, on one side, and civil liability under national law, on the other. A distinction that is particularly relevant in the context of corporate liability. Indeed, while corporate criminal liability is still a controversial legal concept and has yet to be recognised under international criminal law, the civil liability of companies is a general principle of law recognised worldwide. Yet the majority refuses to acknowledge such a fundamental distinction.
It is a pleasure to welcome Lucas Roorda as a guest poster on “Rights as Usual”. M. Roorda is a Ph.D. candidate at Utrecht University, in the Institute of International, Social and Economic Public Law. He specializes in extraterritorial jurisdiction over corporate human rights violations. This post is his.
These are busy days in English courts, insofar as foreign direct liability cases are concerned. Last year saw the London High Court decline jurisdiction in AAA v. Unilever on post-election violence in Kenya, while the Court of Appeals upheld the High Court’s interlocutory decision in Lungowe v. Vedanta on mining operations in Zambia. This February, on Valentine’s day no less, the Court of Appeals decided on the appeal against the interlocutory decision in Okpabi v. Shell. There seems to be little love lost between the applicants and the court: in a split decision (Sales LJ disagreeing) it upheld the High Court’s ruling that the applicants had no arguable claim against Shell, dismissing the appeal on all counts. This post examines the main tenets of the Okpabi appeals decision, how it compares against similar cases like Lungowe, and what that may mean for the future of foreign direct liability cases in English courts.
To recap, the Okpabi case concerned a complaint filed by Nigerian plaintiffs from the Ogale community against Royal Dutch Shell (RDS) and its Nigerian subsidiary SPDC. The plaintiffs alleged that faulty maintenance of pipelines had caused oil pollution in their communities. The argued that RDS had breached a common law duty of care pursuant to Caparo v. Dickman. To argue a duty of care on the basis of Caparo exists, the plaintiffs needed to argue (1) that is was foreseeable that the subsidiary’s activities may result in harm, (2) that the parent was in close proximity to its subsidiary, and that (3) it was reasonable and appropriate to impose such a duty. The proximity criterion has been further clarified in Chandler v. Cape. As discussed by Ekaterina Aristova in her excellent blog, this approach also makes it possible to assert jurisdiction over subsidiary SPDC as a “necessary and proper party” to the claim against the parent. It has been argued in a number of recent cases, including Lungowe and AAA, and mutatis mutandis in the Dutch case of Akpan en Stichting Milieudefensie v. Shell, discussed here on this blog.
RDS and SPDC both denied that the leakages were the result of lacking maintenance and disputed the English courts’ jurisdiction over the case, arguing that the case should take place in Nigeria. In particular, they argued that the claim against RDS had no prospect of succeeding, and was merely used as an empty vessel to “anchor” the claim against SPDC and bring it within the jurisdiction of English courts. In 2016, the High Court accepted the defendants’ motion to dismiss, holding that the claimants did not have a “good arguable case” against RDS; consequently, there was no viable claim to which SPDC could be a “necessary and proper party”, and the entire case was dismissed. I have discussed that decision in detail here. The main thrust of the High Court’s decision was that RDS as the ultimate holding company was too far removed from its subsidiary in Shell’s corporate structure, and was not “in the same business” as its subsidiary as required by Chandler.
On appeal, Lord Justice Simon writing for the Court of Appeals agreed with the conclusions of the High Court, albeit with a different argumentation. The parties had agreed that the principal issue was the proximity element of the Caparo test: if there was no “good arguable case” against RDS on this basis, the case would fall apart entirely. In contrast to the High Court, the Court of Appeals’ decision focused more on RDS’ operational control over SPDC, and its involvement in the activities of its subsidiaries. While Simon LJ did recognize the plaintiffs’ argument that RDS has a central role in designing, implementing and monitoring environmental and security policies of the entire group, he did not consider those general policies to be sufficient to establish a degree of control that would satisfy the proximity requirement under Caparo (para. 127). The appeal was thus rejected.
The Okpabi decision stands in sharp contrast to Lord Justice Jackson’s assessment of very similar arguments made in Lungowe v. Vedanta recently. Lungowe also concerned duties of care of parent companies (the case is cited in Okpabi para. 23). The main difference between these cases is that the Lungowe court saw much more active involvement of the parent company with its subsidiary than the Okpabi court did with respect to RDS and SPDC. Moreover, the Lungowe court tried to avoid an all-too-deep inquiry into the merits, warning against “mini-trials” in this preliminary phase of the proceedings (see Lungowe 2017, para. 86 citing Coulson J, and para. 90). Instead, it recognized that while the case might not be open-and-shut at this stage, evidence may become available at a later stage to support the claimants’ assertions.
The Okpabi appeals decision is disappointing for several reasons. First, assessing “proximity” according to the standards set by the Court of Appeals essentially rewards corporate groups whose parent companies do not get actively involved with their subsidiaries’ operations. Even when the parent is instrumental in creating operational standards across the entire group, that would not be sufficient for it to incur a duty of care; whereas more hands-on involvement would. This creates perverse incentives for parent companies not to improve the environmental, security and health and safety standards of specific subsidiaries, lest they are held liable when harm occurs later. It also punishes companies that do try to be more responsible. It is a strange movement in times when transnational corporations are encouraged to take due diligence with regard to the human rights and environmental risks of their operations.
Second, it could be argued that the Court of Appeals’ approach to the proximity standard requires the plaintiffs to have a “winnable” rather than an “arguable” case. Earlier cases required that the plaintiffs’ claim against the parent was more than hypothetical. Simon LJ’s examination of the claimants’ arguments in contrast seems to suggest that a virtual ‘smoking gun’ was necessary to make the claim arguable. That “smoking gun” could be a document that showed that RDS had indeed actively intervened in SPDC rather than documents showing its capacity to do so. It is questionable whether this is appropriate at the jurisdiction stage of the case, or if this inches close to the “mini-trials” the Lungowe court warned of.
Third, this early incursion into the merits puts plaintiffs at a serious disadvantage with regard to producing evidence. They cannot rely on disclosure rules in this phase of the proceedings, which is arguably instrumental for producing the specific evidence required to argue the type of direct involvement required by the Court’s high standard for proximity. Instead they must build their case on public documents, supplemented with more general expert witness statements. Those can however be easily dismissed as irrelevant to the specific case, as indeed happened in Okpabi. On the other hand, defendants do have all access to those relevant documents, which they can use to their benefit. The Okpabi court’s approach may thus lead to serious equality of arms issues.
A better approach in my view would be the one advocated by Lord Justice Sales in his separate opinion. This would “merely” require that the claimants demonstrate that their case was “more than speculative” (para. 136). The documents discussed by Simon LJ, demonstrating the general control of RDS over the group and its operations would be sufficient to satisfy that test. While they might not be sufficient to eventually win the case on the merits, they provided a substantive context that rendered the claim more than speculative. The evidence could be strengthened by later evidence following disclosure on the argument that RDS also exercised specific control sufficient to satisfy the proximity requirement (see e.g. paras. 161 and 171). Unfortunately, Sales LJ was not joined by the third judge Lord Chancellor Vos.
Perhaps the most important point, however, was made by Sales LJ in his conclusions (para. 172-xi). RDS sought to control certain activities and their accompanying risks for its own interests, which are not inconsequential in terms of financial gain. Now that these activities have resulted in significant harm to others, it seems strange not to address the actor that was in a prime position to prevent those harms. In that context, it seems hardly appropriate to be overly concerned with how bad it would be for the parent company to be under a duty of care for all its subsidiaries’ operations (see para. 206). As the claimants have opted to take the case to the UK Supreme Court, it can only be hoped that some of the deficiencies in the Okpabi appeals decision are remedied later. If Okpabi is adopted as the right approach for assessing a ‘good arguable case’ for a duty of care, the prospects for foreign direct liability cases in the United Kingdom may be in serious jeopardy.
The Business, Human Rights and the Environment Research Group at the University of Greenwich (BHRE), led by Dr Olga Martin-Ortega, and of which I am an associate member, answered the call for inputs on the Draft Guidelines on Human Rights and Environment, prepared by the UN Special Rapporteur on Human Rights and the Environment. Dr Martin-Ortega and myself were the main authors of the submission, with input from Dr. Opi Outhwaite and Dr. Daniel Aguirre.
We welcome the Draft Guidelines on Human Rights and the Environment (hereinafter Draft Guidelines) and highly regard the work of the UN Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment. This submission aims to support this work and provide further insights to help ground it into current international law and policy developments. Our recommendations seek to frame the Draft Guidelines within the current developments regarding business and human rights, environmental rights, children’s rights and international criminal justice.
International human rights law and environmental law have advanced greatly, both substantively and procedurally, to protect the rights of those affected by environmental damage and guarantee the enjoyment of a safe, clean, healthy and sustainable environment. These advancements have both widened the scope of State obligations and increased the responsibilities of third parties, in particular corporations, towards human rights and the environment.
In this regard, we believe it is important that the Draft Guidelines further reflect these advancements and more decisively highlight the role of the private sector in harming human rights and the environment, and addressing such harms. The harmonisation of language is particularly important in order to consolidate increasing State human rights obligations and efforts to hold corporations accountable for the impact of their actions and business relations. This is why this submission recommends the Draft Guidelines include some of the terms and concepts which are today consolidated elements of the business and human rights scholarship and practice.
It is important that the Draft Guidelines builds on other international legal instruments which are today widely accepted by the international community, including States, Intergovernmental Organisations, NGOs and corporations themselves. These include the Convention on the Rights of the Child (1990); the Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters (1998), the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005); UN Guiding Principles on Business and Human Rights (2011), OEDC Guidelines on Multinational Enterprises (2011), the UNICEF-Save the Children-Global Compact Children Rights and Business Principles (2012); the IFC Performance Standards on Environmental and Social Sustainability (2012); the World Bank Environmental and Social Safeguard Policies (2017) and the Policy Paper of the International Criminal Court Office of the Prosecutor on Case Selection and Prioritisation (2016), as well as the work of the UN Working Group on Business and Human Rights, and previous reports from the Special Rapporteur himself.
Most of the violations of human rights related to harm to the environment are directly connected with corporate activity. It is the private sector which produces the highest volume of pollution and harmful activity which has a direct impact on the full enjoyment of human rights. The State duty to protect human rights against third party action is long established in international human rights, and has been further consolidated since the publication of the UN Guiding Principles on Business and Human Rights and States National Action Plans to implement them. Considering this, we recommend that the Draft Guidelines includes a reference to the private sector, specifically corporations, in the General Obligations section, in order to reinforce this existing duty and harmonise language with current developments in international law.
It is widely accepted today that business have a responsibility, which is no longer exclusively a social expectation, to respect human rights and conduct themselves with due diligence in the development of their commercial activities and partnerships. Pillar II of the UN Guiding Principles on Business and Human Rights establishes the basic elements of this responsibility, which has been consolidated and further developed by other intergovernmental instruments, such as the OECD Guidelines on Multinational Enterprises, the EU Corporate Social Responsibility Strategy, National Action Plans on the implementation of the UN Guiding Principles on Business and Human Rights and prolific corporate statements and practice. Considering this, we recommend adding a fourth General Obligation establishing that every corporation has the responsibility to respect human rights from harm produced by environmental damage.
The right to remedy and its correlating State duty to provide access to justice are well established both in international human rights law and environmental law. The Aarhus Convention on Access to Information, Public Participation and Decision-Making and Access to Justice in Environmental Matters does so in relation to public decision-making and it is the core of Pillar III of the UN Guiding Principles on Business and Human Rights, obliging States to guarantee an effective remedy and corporations to participate in remediation efforts. State obligations to provide remedy and reparations for victims are further reinforced in the case of gross violations of human rights and serious violations of international humanitarian law, by UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. The Draft Guidelines should build on the work of the Special Rapporteur himself, who in 2013 extensively elaborated on the matter (A/HRC/28/61, 3 February 2015, p. 12 et seq.). As well established, victims’ lack of resources and the inequality of arms brought by it is one of the most prevalent obstacles to access to justice. We suggest the Draft Guidelines add a strong reference to Guideline 8 in the part on Procedural Obligations to States obligation to guarantee access to justice, by providing the adequate procedures, resources and support to victims of environmental and human rights harm.
As the Draft Guidelines highlight, children are particularly vulnerable to environmental harm. The Convention on the Rights of the Child recognizes the right of children to a healthy and safe environment, as one of the elements to ensuring the healthy development of each child. The UNICEF-Save the Children- Global Compact Principles on Business and Children establish specifically that “All business should…[r]espect and support children’s rights in relation to the environment and to land acquisition and use” (Principle 7). When developing the corporate responsibility to respect in relation to children’s rights the Principles elaborate respecting children’s rights in relationship to the environment as: “i. When planning and implementing environmental and resource-use strategies, ensure that business operations do not adversely affect children’s rights, including through damage to the environment or reducing access to natural resources; ii. Ensure the rights of children, their families and communities are addressed in contingency plans and remediation for environmental and health damage from business operations, including accidents”. Therefore, we suggest a reference to the duty of the State to regulate business to specifically respect children’s rights and remedy harm (in Guideline 14) as well as a direct reference to the corporate responsibility to respect children’s rights in relation to the environment and contribute to harm remediation (by adding a further Guideline).
During situations of armed conflict, violence in weak governance zones and mass and systematic abuses of human rights, States have a heightened duty to protect human rights. The UN Guiding Principles on Business and Human Rights further develop the obligations of States to engage with business to identify, prevent and mitigate the human rights-related risks of their activities and business relationships in these environments as well as provide adequate assistance to business enterprises to assess and address the heightened risks of abuses; deny access to public support and services for a business enterprise that is involved with gross human rights abuses and refuses to cooperate in addressing the situation; and ensure that their current policies, legislation, regulations and enforcement measures are effective in addressing the risk of business involvement in gross human rights abuses (UN GP 7). This applies too to violations resulting from environmental harm. As argued above, the duty of the State to provide remedy, access to justice and reparations to victims in these situations is well established in international human rights law. Furthermore, the ICC Prosecutor, in her recent Policy Paper on Case Selection and Prioritisation (on this, please see a short blog post here and a more detailed article here), has highlighted how in order to consider the cases which merit prioritisation “the impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities” (para. 41). In this context, the Office of the Prosecutor will give particular consideration to prosecuting crimes under the Rome Statute (war crimes, crimes against humanity and genocide) that are committed among others by means of, or that result in, inter alia, the destruction of the environment (ibid). Following these considerations, we recommend that the Draft Guidelines contain a reference to persons who are vulnerable due to the context in which the violations take place including armed conflict, weak governance and mass and systematic violence (Guideline 13). The obligations which the State is subject to in this case should include ensuring that the normative framework criminalises the actions which amount to international crimes in international criminal law (Guideline 14).
· Reports from the UN Working Group on Business and Human Rights and the Special Rapporteur himself.
b. Including a reference to the private sector, specifically corporations, in the General Obligations section, in order to reinforce this existing duty and harmonise language with current developments in international law.
c. Adding a fourth General Obligation establishing that every corporation has the responsibility to respect human rights from harm produced by environmental damage.
d. Adding add a strong reference to Guideline 8, Procedural Obligations, to States obligation to guarantee access to justice, by providing the adequate procedures, resources and support to victims of environmental and human rights harm.
e. Inserting a reference in Guideline 14 to the State duty to regulate business to specifically respect children’s rights and remedy harm.
f. Adding a further Guideline (Guideline 16) which contains a direct reference to the corporate responsibility to respect children’s rights in relation to the environment and contribute to harm remediation.
g. Adding a reference to persons who are vulnerable due to the context in which the violations take place including armed conflict, weak governance and mass and systematic violence to Guideline 13.
h. Adding a reference to the obligations of States to ensuring that the normative framework criminalises the actions which amount to international crimes in international criminal law to Guideline 14.
We reiterate our support to the Draft Guidelines and our willingness to further ground them in international law developments for them to become an instrumental tool for the protection of human rights and the environment. We look forward to the final version of the Draft Guidelines.

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D.C. Law Library - § 47–857.03. Tax abatements for new residential developments — Tax abatement for all new housing projects downtown.
↪ § 47–857.03. Tax abatements for new residential developments — Tax abatement for all new housing projects downtown.
§ 47–857.02. Tax abatements for new residential developments — Requirements for tax abatements for new residential developments.
§ 47–857.04. Tax abatements for new residential developments — Tax abatement for all new housing projects in Housing Priority Area.
§ 47–857.03. Tax abatements for new residential developments — Tax abatement for all new housing projects downtown.
(1) If a project does not use concrete construction throughout the building or does not include underground parking, the per residential FAR square foot tax abatement shall be determined by the Mayor and shall be determined so that the total tax abatement is estimated to be equal to 45% of the difference between the residential real property tax imposed on the project by § 47-811 before and after development.
(2) The tax abatement for an eligible real property allowed by this section shall expire at the end of the 10th tax year after the tax year in which a certificate of occupancy is issued for the property.
(3) If, during a tax year for which the tax abatement is authorized by this section, the property for which the abatement was granted contains fewer than 10 dwelling units, the abatement shall not be allowed.
This section is referenced in § 42-3508.02, § 47-857.02, and § 47-857.09.


Respondent Seibert feared charges of neglect when her son, afflicted with cerebral palsy, died in his sleep. She was present when two of her sons and their friends discussed burning her family’s mobile home to conceal the circumstances of her son’s death. Donald, an unrelated mentally ill 18-year-old living with the family, was left to die in the fire, in order to avoid the appearance that Seibert’s son had been unattended. Five days later, the police arrested Seibert, but did not read her her rights under Miranda v. Arizona, 384 U. S. 436. At the police station, Officer Hanrahan questioned her for 30 to 40 minutes, obtaining a confession that the plan was for Donald to die in the fire. He then gave her a 20-minute break, returned to give her Miranda warnings, and obtained a signed waiver. He resumed questioning, confronting Seibert with her prewarning statements and getting her to repeat the information. Seibert moved to suppress both her prewarning and postwarning statements. Hanrahan testified that he made a conscious decision to withhold Miranda warnings, question first, then give the warnings, and then repeat the question until he got the answer previously given. The District Court suppressed the prewarning statement but admitted the postwarning one, and Seibert was convicted of second-degree murder. The Missouri Court of Appeals affirmed, finding the case indistinguishable from Oregon v. Elstad, 470 U. S. 298, in which this Court held that a suspect’s unwarned inculpatory statement made during a brief exchange at his house did not make a later, fully warned inculpatory statement inadmissible. In reversing, the State Supreme Court held that, because the interrogation was nearly continuous, the second statement, which was clearly the product of the invalid first statement, should be suppressed; and distinguished Elstad on the ground that the warnings had not intentionally been withheld there.
93 S. W. 3d 700, affirmed.
Justice Souter, joined by Justice Stevens, Justice Ginsburg, and Justice Breyer, concluded that, because the midstream recitation of warnings after interrogation and unwarned confession in this case could not comply with Miranda’s constitutional warning requirement, Seibert’s postwarning statements are inadmissible. Pp. 4–15.
(a) Failure to give Miranda warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained. Conversely, giving the warnings and getting a waiver generally produces a virtual ticket of admissibility, with most litigation over voluntariness ending with valid waiver finding. This common consequence would not be at all common unless Miranda warnings were customarily given under circumstances that reasonably suggest a real choice between talking and not talking. Pp. 4–6.
(b) Dickerson v. United States, 530 U. S. 428, reaffirmed Miranda, holding that Miranda’s constitutional character prevailed against a federal statute that sought to restore the old regime of giving no warnings and litigating most statements’ voluntariness. The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda. Pp. 6–9.
(c) When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and the question-first strategy. Miranda addressed “interrogation practices … likely … to disable [an individual] from making a free and rational choice” about speaking, 384 U. S., at 464–465, and held that a suspect must be “adequately and effectively” advised of the choice the Constitution guarantees, id., at 467. Question-first’s object, however, is to render Miranda warnings ineffective by waiting to give them until after the suspect has already confessed. The threshold question in this situation is whether it would be reasonable to find that the warnings could function “effectively” as Miranda requires. There is no doubt about the answer. By any objective measure, it is likely that warnings withheld until after interrogation and confession will be ineffective in preparing a suspect for successive interrogation, close in time and similar in content. The manifest purpose of question-first is to get a confession the suspect would not make if he understood his rights at the outset. When the warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “deprive a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine, 475 U. S. 412, 424. And it would be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle. Pp. 9–12.
(d) Elstad does not authorize admission of a confession repeated under the question-first strategy. The contrast between Elstad and this case reveals relevant facts bearing on whether midstream Miranda warnings could be effective to accomplish their object: the completeness and detail of the questions and answers to the first round of questioning, the two statements’ overlapping content, the timing and setting of the first and second rounds, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. In Elstad, the station house questioning could sensibly be seen as a distinct experience from a short conversation at home, and thus the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission. Here, however, the unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. The warned phase proceeded after only a 15-to-20 minute pause, in the same place and with the same officer, who did not advise Seibert that her prior statement could not be used against her. These circumstances challenge the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes could not have understood them to convey a message that she retained a choice about continuing to talk. Pp. 12–15.
Justice Kennedy concluded that when a two-step interrogation technique is used, postwarning statements related to prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Not every violation of Miranda v. Arizona, 384 U. S. 436, requires suppression of the evidence obtained. Admission may be proper when it would further important objectives without compromising Miranda’s central concerns. See, e.g., Harris v. New York, 401 U. S. 222. Oregon v. Elstad, 470 U. S. 298, reflects a balanced and pragmatic approach to enforcing the Miranda warning. An officer may not realize that a suspect is in custody and warnings are required, and may not plan to question the suspect or may be waiting for a more appropriate time. Suppressing postwarning statements under such circumstances would serve “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence.” Elstad, supra, at 308. In contrast, the technique used in this case distorts Miranda’s meaning and furthers no legitimate countervailing interest. The warning was withheld to obscure both the practical and legal significance of the admonition when finally given. That the interrogating officer relied on respondent’s prewarning statement to obtain the postwarning one used at trial shows the temptations for abuse inherent in the two-step technique. Reference to the prewarning statement was an implicit, and false, suggestion that the mere repetition of the earlier statement was not independently incriminating. The Miranda rule would be frustrated were the police permitted to undermine its meaning and effect. However, the plurality’s test—that whenever a two-stage interview occurs, the postwarning statement’s admissibility depends on whether the midstream warnings could have been effective enough to accomplish their object given the case’s specific facts—cuts too broadly. The admissibility of postwarning statements should continue to be governed by Elstad’s principles unless the deliberate two-step strategy is employed. Then, the postwarning statements must be excluded unless curative measures are taken before they were made. Such measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and waiver. For example, a substantial break in time and circumstances between the prewarning statement and the warning may suffice in most instances, as may an additional warning explaining the likely inadmissibility of the prewarning statement. Because no curative steps were taken in this case, the postwarning statements are inadmissible and the conviction cannot stand. Pp. 1–5.
Souter, J., announced the judgment of Court and delivered an opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion. Kennedy, J., filed an opinion concurring in the judgment. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., and Scalia and Thomas, JJ., joined.
Justice Souter announced the judgment of the Court and delivered an opinion, in which Justice Stevens, Justice Ginsburg, and Justice Breyer join.
This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda v. Arizona, 384 U. S.436 (1966), the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement. Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible.
Respondent Patrice Seibert’s 12-year-old son Jonathan had cerebral palsy, and when he died in his sleep she feared charges of neglect because of bedsores on his body. In her presence, two of her teenage sons and two of their friends devised a plan to conceal the facts surrounding Jonathan’s death by incinerating his body in the course of burning the family’s mobile home, in which they planned to leave Donald Rector, a mentally ill teenager living with the family, to avoid any appearance that Jonathan had been unattended. Seibert’s son Darian and a friend set the fire, and Donald died.
Seibert: “Yes.” Id., at 70.
After being charged with first-degree murder for her role in Donald’s death, Seibert sought to exclude both her prewarning and postwarning statements. At the suppression hearing, Officer Hanrahan testified that he made a “conscious decision” to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question “until I get the answer that she’s already provided once.” App. 31–34. He acknowledged that Seibert’s ultimate statement was “largely a repeat of information … obtained” prior to the warning. Id., at 30.
The trial court suppressed the prewarning statement but admitted the responses given after the Miranda recitation. A jury convicted Seibert of second-degree murder. On appeal, the Missouri Court of Appeals affirmed, treating this case as indistinguishable from Oregon v. Elstad, 470 U. S. 298 (1985). No. 23729, 2002 WL 114804 (Jan. 30, 2002) (not released for publication).
The Supreme Court of Missouri reversed, holding that “[i]n the circumstances here, where the interrogation was nearly continuous, … the second statement, clearly the product of the invalid first statement, should have been suppressed.” 93 S. W. 3d 700, 701 (2002). The court distinguished Elstad on the ground that warnings had not intentionally been withheld there, 93 S. W. 3d, at 704, and reasoned that “Officer Hanrahan’s intentional omission of a Miranda warning was intended to deprive Seibert of the opportunity knowingly and intelligently to waive her Miranda rights,” id., at 706. Since there were “no circumstances that would seem to dispel the effect of the Miranda violation,” the court held that the postwarning confession was involuntary and therefore inadmissible. Ibid. To allow the police to achieve an “end run” around Miranda, the court explained, would encourage Miranda violations and diminish Miranda’s role in protecting the privilege against self-incrimination. 93 S. W. 3d, at 706–707. One judge dissented, taking the view that Elstad applied even though the police intentionally withheld Miranda warnings before the initial statement, and believing that “Seibert’s unwarned responses to Officer Hanrahan’s questioning did not prevent her from waiving her rights and confessing.” 93 S. W. 3d, at 708 (opinion of Benton, J.).
We granted certiorari, 538 U. S. 1031 (2003), to resolve a split in the Courts of Appeals. Compare United States v. Gale, 952 F. 2d 1412, 1418 (CADC 1992) (while “deliberate ‘end run’ around Miranda” would provide cause for suppression, case involved no conduct of that order); United States v. Carter, 884 F. 2d 368, 373 (CA8 1989) (“Elstad did not go so far as to fashion a rule permitting this sort of end run around Miranda”), with United States v. Orso, 266 F. 3d 1030, 1034–1039 (CA9 2001) (en banc) (rejecting argument that “tainted fruit” analysis applies because deliberate withholding of Miranda warnings constitutes an “improper tactic”); United States v. Esquilin, 208 F. 3d 315, 319–321 (CA1 2000) (similar). We now affirm.
“In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment … commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” Bram v. United States, 168 U. S. 532, 542 (1897). A parallel rule governing the admissibility of confessions in state courts emerged from the Due Process Clause of the Fourteenth Amendment, see, e.g., Brown v. Mississippi, 297 U. S. 278 (1936), which governed state cases until we concluded in Malloy v. Hogan, 378 U. S. 1, 8 (1964), that “[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty … for such silence.” In unifying the Fifth and Fourteenth Amendment voluntariness tests, Malloy “made clear what had already become apparent—that the substantive and procedural safeguards surrounding admissibility of confessions in state cases had become exceedingly exacting, reflecting all the policies embedded in the privilege” against self-incrimination. Miranda, 384 U. S., at 464.
In Miranda, we explained that the “voluntariness doctrine in the state cases … encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from making a free and rational choice,” id., at 464–465. We appreciated the difficulty of judicial enquiry post hoc into the circumstances of a police interrogation, Dickerson v. United States, 530 U. S. 428, 444 (2000), and recognized that “the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk” that the privilege against self-incrimination will not be observed, id., at 435. Hence our concern that the “traditional totality-of-the-circumstances” test posed an “unacceptably great” risk that involuntary custodial confessions would escape detection. Id., at 442.
Accordingly, “to reduce the risk of a coerced confession and to implement the Self-Incrimination Clause,” Chavez v. Martinez, 538 U. S. 760, 790 (2003) (Kennedy, J., concurring in part and dissenting in part), this Court in Miranda concluded that “the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored,” 384 U. S., at 467. Miranda conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained.[Footnote 1] Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver. See Berkemer v. McCarty, 468 U. S. 420, 433, n. 20 (1984) (“[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare”). To point out the obvious, this common consequence would not be common at all were it not that Miranda warnings are customarily given under circumstances allowing for a real choice between talking and remaining silent.
There are those, of course, who preferred the old way of doing things, giving no warnings and litigating the voluntariness of any statement in nearly every instance. In the aftermath of Miranda, Congress even passed a statute seeking to restore that old regime, 18 U. S. C. §3501, although the Act lay dormant for years until finally invoked and challenged in Dickerson v. United States, supra. Dickerson reaffirmed Miranda and held that its constitutional character prevailed against the statute.
When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and question-first. Miranda addressed “interrogation practices … likely … to disable [an individual] from making a free and rational choice” about speaking, 384 U. S., at 464–465, and held that a suspect must be “adequately and effectively” advised of the choice the Constitution guarantees, id., at 467. The object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.
There is no doubt about the answer that proponents of question-first give to this question about the effectiveness of warnings given only after successful interrogation, and we think their answer is correct. By any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content. After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.[Footnote 5] A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine, 475 U. S. 412, 424 (1986). By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle.
Missouri argues that a confession repeated at the end of an interrogation sequence envisioned in a question-first strategy is admissible on the authority of Oregon v. Elstad, 470 U. S. 298 (1985), but the argument disfigures that case. In Elstad, the police went to the young suspect’s house to take him into custody on a charge of burglary. Before the arrest, one officer spoke with the suspect’s mother, while the other one joined the suspect in a “brief stop in the living room,” id., at 315, where the officer said he “felt” the young man was involved in a burglary, id., at 301 (internal quotation marks omitted). The suspect acknowledged he had been at the scene. Ibid. This Court noted that the pause in the living room “was not to interrogate the suspect but to notify his mother of the reason for his arrest,” id., at 315, and described the incident as having “none of the earmarks of coercion,” id., at 316. The Court, indeed, took care to mention that the officer’s initial failure to warn was an “oversight” that “may have been the result of confusion as to whether the brief exchange qualified as ‘custodial interrogation’ or … may simply have reflected … reluctance to initiate an alarming police procedure before [an officer] had spoken with respondent’s mother.” Id., at 315–316. At the outset of a later and systematic station house interrogation going well beyond the scope of the laconic prior admission, the suspect was given Miranda warnings and made a full confession. Elstad, supra, at 301, 314–315. In holding the second statement admissible and voluntary, Elstad rejected the “cat out of the bag” theory that any short, earlier admission, obtained in arguably innocent neglect of Miranda, determined the character of the later, warned confession, Elstad, 470 U. S., at 311–314; on the facts of that case, the Court thought any causal connection between the first and second responses to the police was “speculative and attenuated,” id., at 313. Although the Elstad Court expressed no explicit conclusion about either officer’s state of mind, it is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic questioning in that particular case, but posing no threat to warn-first practice generally. See Elstad, supra, at 309 (characterizing the officers’ omission of Miranda warnings as “a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will”); 470 U. S., at 318, n. 5 (Justice Brennan’s concern in dissent that Elstad would invite question-first practice “distorts the reasoning and holding of our decision, but, worse, invites trial courts and prosecutors to do the same”).
The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. In Elstad, it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.
Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert’s postwarning statements are inadmissible. The judgment of the Supreme Court of Missouri is affirmed.
“[T]he burden of showing admissibility rests, of course, on the prosecution.” Brown v. Illinois, 422 U. S. 590, 604 (1975). The prosecution bears the burden of proving, at least by a preponderance of the evidence, the Miranda waiver, Colorado v. Connelly, 479 U. S. 157, 169 (1986), and the voluntariness of the confession, Lego v. Twomey, 404 U. S. 477, 489 (1972).
Emphasizing the impeachment exception to the Miranda rule approved by this Court, Harris v. New York, 401 U. S. 222 (1971), some training programs advise officers to omit Miranda warnings altogether or to continue questioning after the suspect invokes his rights. See, e.g., Police Law Manual 83 (“There is no need to give a Miranda warning before asking questions if … the answers given … will not be required by the prosecutor during the prosecution’s case-in-chief”); California Commission on Peace Officer Standards and Training, Video Training Programs for California Law Enforcement, Miranda: Post-Invocation Questioning (broadcast July 11, 1996) (“We … have been encouraging you to continue to question a suspect after they’ve invoked their Miranda rights”); D. Zulawski & D. Wicklander, Practical Aspects of Interview and Interrogation 50–51 (2d ed. 2002) (describing the practice of “[b]eachheading” as useful for impeachment purpose (emphasis deleted)); see also Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109, 110, 132–139 (1998) (collecting California training materials encouraging questioning “outside Miranda”). This training is reflected in the reported cases involving deliberate questioning after invocation of Miranda rights. See, e.g., California Attorneys for Criminal Justice v. Butts, 195 F. 3d 1039, 1042–1044 (CA9 2000); Henry v. Kernan, 197 F. 3d 1021, 1026 (CA9 1999); People v. Neal, 31 Cal. 4th 63, 68, 72 P. 3d 280, 282 (2003); People v. Peevy, 17 Cal. 4th 1184, 1189, 953 P. 2d 1212, 1215 (1998). Scholars have noted the growing trend of such practices. See, e.g., Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L. Rev. 1000, 1010 (2001); Weisselberg, In the Stationhouse After Dickerson, 99 Mich. L. Rev. 1121, 1123–1154 (2001).
It is not the case, of course, that law enforcement educators en masse are urging that Miranda be honored only in the breach. See, e.g., C. O’Hara & G. O’Hara, Fundamentals of Criminal Investigation 133 (7th ed. 2003) (instructing police to give Miranda warnings before conducting custodial interrogation); F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 221 (3d ed. 1986) (hereinafter Inbau, Reid, & Buckley) (same); John Reid & Associates, Interviewing & Interrogation: The Reid Technique 61 (1991) (same). Most police manuals do not advocate the question-first tactic, because they understand that Oregon v. Elstad, 470 U. S. 298 (1985), involved an officer’s good-faith failure to warn. See, e.g., Inbau, Reid, & Buckley 241 (Elstad’s “facts as well as [its] specific holding” instruct that “where an interrogator has failed to administer the Miranda warnings in the mistaken belief that, under the circumstances of the particular case, the warnings were not required, … corrective measures … salvage an interrogation opportunity”).
See, e.g., United States v. Orso, 266 F. 3d 1030, 1032–1033 (CA9 2001) (en banc); Pope v. Zenon, 69 F. 3d 1018, 1023–1024 (CA9 1995), overruled by Orso, supra; Cooper v. Dupnik, 963 F. 2d 1220, 1224–1227, 1249 (CA9 1992) (en banc); United States v. Carter, 884 F. 2d 368, 373 (CA9 1989); United States v. Esquilin, 208 F. 3d 315, 317 (CA1 2000); Davis v. United States, 724 A. 2d 1163, 1165–1166 (D. C. App. 1998).
Respondent Seibert argues that her second confession should be excluded from evidence under the doctrine known by the metaphor of the “fruit of the poisonous tree,” developed in the Fourth Amendment context in Wong Sun v. United States, 371 U. S. 471 (1963): evidence otherwise admissible but discovered as a result of an earlier violation is excluded as tainted, lest the law encourage future violations. But the Court in Elstad rejected the Wong Sun fruits doctrine for analyzing the admissibility of a subsequent warned confession following “an initial failure . . . to administer the warnings required by Miranda.” Elstad, 470 U. S., at 300. In Elstad, “a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will” did not “so tain[t] the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id., at 309. Elstad held that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Id., at 318. In a sequential confession case, clarity is served if the later confession is approached by asking whether in the circumstances the Miranda warnings given could reasonably be found effective. If yes, a court can take up the standard issues of voluntary waiver and voluntary statement; if no, the subsequent statement is inadmissible for want of adequate Miranda warnings, because the earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning.
It bears emphasizing that the effectiveness Miranda assumes the warnings can have must potentially extend through the repeated interrogation, since a suspect has a right to stop at any time. It seems highly unlikely that a suspect could retain any such understanding when the interrogator leads him a second time through a line of questioning the suspect has already answered fully. The point is not that a later unknowing or involuntary confession cancels out an earlier, adequate warning; the point is that the warning is unlikely to be effective in the question-first sequence we have described.
Because the intent of the officer will rarely be as candidly admitted as it was here (even as it is likely to determine the conduct of the interrogation), the focus is on facts apart from intent that show the question-first tactic at work.
We do not hold that a formal addendum warning that a previous statement could not be used would be sufficient to change the character of the question-first procedure to the point of rendering an ensuing statement admissible, but its absence is clearly a factor that blunts the efficacy of the warnings and points to a continuing, not a new, interrogation.
Because we find that the warnings were inadequate, there is no need to assess the actual voluntariness of the statement.
In my view, the following simple rule should apply to the two-stage interrogation technique: Courts should exclude the “fruits” of the initial unwarned questioning unless the failure to warn was in good faith. Cf. Oregon v. Elstad, 470 U. S. 298, 309, 318, n. 5 (1985); United States v. Leon, 468 U. S. 897 (1984). I believe this is a sound and workable approach to the problem this case presents. Prosecutors and judges have long understood how to apply the “fruits” approach, which they use in other areas of law. See Wong Sun v. United States, 371 U. S. 471 (1963). And in the workaday world of criminal law enforcement the administrative simplicity of the familiar has significant advantages over a more complex exclusionary rule. Cf. post, at 6–7 (O’Connor, J., dissenting).
I believe the plurality’s approach in practice will function as a “fruits” test. The truly “effective” Miranda warnings on which the plurality insists, ante, at 13–14, will occur only when certain circumstances—a lapse in time, a change in location or interrogating officer, or a shift in the focus of the questioning—intervene between the unwarned questioning and any postwarning statement. Cf. Taylor v. Alabama, 457 U. S. 687, 690 (1982) (evidence obtained subsequent to a constitutional violation must be suppressed as “fruit of the poisonous tree” unless “intervening events break the causal connection”).
I consequently join the plurality’s opinion in full. I also agree with Justice Kennedy’s opinion insofar as it is consistent with this approach and makes clear that a good-faith exception applies. See post, at 5 (opinion concurring in judgment).
The interrogation technique used in this case is designed to circumvent Miranda v. Arizona, 384 U. S. 436 (1966). It undermines the Miranda warning and obscures its meaning. The plurality opinion is correct to conclude that statements obtained through the use of this technique are inadmissible. Although I agree with much in the careful and convincing opinion for the plurality, my approach does differ in some respects, requiring this separate statement.
The Miranda rule has become an important and accepted element of the criminal justice system. See Dickerson v. United States, 530 U. S. 428 (2000). At the same time, not every violation of the rule requires suppression of the evidence obtained. Evidence is admissible when the central concerns of Miranda are not likely to be implicated and when other objectives of the criminal justice system are best served by its introduction. Thus, we have held that statements obtained in violation of the rule can be used for impeachment, so that the truth finding function of the trial is not distorted by the defense, see Harris v. New York, 401 U. S. 222 (1971); that there is an exception to protect countervailing concerns of public safety, see New York v. Quarles, 467 U. S. 649 (1984); and that physical evidence obtained in reliance on statements taken in violation of the rule is admissible, see United States v. Patane, post, p. ____. These cases, in my view, are correct. They recognize that admission of evidence is proper when it would further important objectives without compromising Miranda’s central concerns. Under these precedents, the scope of the Miranda suppression remedy depends on a consideration of those legitimate interests and on whether admission of the evidence under the circumstances would frustrate Miranda’s central concerns and objectives.
Oregon v. Elstad, 470 U. S. 298 (1985), reflects this approach. In Elstad, a suspect made an initial incriminating statement at his home. The suspect had not received a Miranda warning before making the statement, apparently because it was not clear whether the suspect was in custody at the time. The suspect was taken to the station house, where he received a proper warning, waived his Miranda rights, and made a second statement. He later argued that the postwarning statement should be suppressed because it was related to the unwarned first statement, and likely induced or caused by it. The Court held that, although a Miranda violation made the first statement inadmissible, the postwarning statements could be introduced against the accused because “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression” given the facts of that case. Elstad, supra, at 308 (citing Michigan v. Tucker, 417 U. S. 433, 445 (1974)).
In my view, Elstad was correct in its reasoning and its result. Elstad reflects a balanced and pragmatic approach to enforcement of the Miranda warning. An officer may not realize that a suspect is in custody and warnings are required. The officer may not plan to question the suspect or may be waiting for a more appropriate time. Skilled investigators often interview suspects multiple times, and good police work may involve referring to prior statements to test their veracity or to refresh recollection. In light of these realities it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning. See Elstad, 470 U. S., at 309 (“It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings … so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period”). That approach would serve “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the … testimony.” Id., at 308.
This case presents different considerations. The police used a two-step questioning technique based on a deliberate violation of Miranda. The Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given. As Justice Souter points out, the two-step technique permits the accused to conclude that the right not to respond did not exist when the earlier incriminating statements were made. The strategy is based on the assumption that Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory statements have already been obtained. This tactic relies on an intentional misrepresentation of the protection that Miranda offers and does not serve any legitimate objectives that might otherwise justify its use.
Further, the interrogating officer here relied on the defendant’s prewarning statement to obtain the postwarning statement used against her at trial. The postwarning interview resembled a cross-examination. The officer confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them. See App. 70 (“ ’Trice, didn’t you tell me that he was supposed to die in his sleep?”). This shows the temptations for abuse inherent in the two-step technique. Reference to the prewarning statement was an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false.
The technique used in this case distorts the meaning of Miranda and furthers no legitimate countervailing interest. The Miranda rule would be frustrated were we to allow police to undermine its meaning and effect. The technique simply creates too high a risk that postwarning statements will be obtained when a suspect was deprived of “knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine, 475 U. S. 412, 423–424 (1986). When an interrogator uses this deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.
The plurality concludes that whenever a two-stage interview occurs, admissibility of the postwarning statement should depend on “whether the Miranda warnings delivered midstream could have been effective enough to accomplish their object” given the specific facts of the case. Ante, at 13. This test envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations. Ante, at 13–15. In my view, this test cuts too broadly. Miranda’s clarity is one of its strengths, and a multifactor test that applies to every two-stage interrogation may serve to undermine that clarity. Cf. Berkemer v. McCarty, 468 U. S. 420, 430 (1984). I would apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.
The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Cf. Westover v. United States, decided with Miranda v. Arizona, 384 U. S. 436 (1966). Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient. No curative steps were taken in this case, however, so the postwarning statements are inadmissible and the conviction cannot stand.
Justice O’Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.
The plurality devours Oregon v. Elstad, 470 U. S. 298 (1985), even as it accuses petitioner’s argument of “disfigur[ing]” that decision. Ante, at 12. I believe that we are bound by Elstad to reach a different result, and I would vacate the judgment of the Supreme Court of Missouri.
On two preliminary questions I am in full agreement with the plurality. First, the plurality appropriately follows Elstad in concluding that Seibert’s statement cannot be held inadmissible under a “fruit of the poisonous tree” theory. Ante, at 10, n. 4. Second, the plurality correctly declines to focus its analysis on the subjective intent of the interrogating officer.
This Court has made clear that there simply is no place for a robust deterrence doctrine with regard to violations of Miranda v. Arizona, 384 U. S. 436 (1966). See Dickerson v. United States, 530 U. S. 428, 441 (2000) (“Our decision in [Elstad]—refusing to apply the traditional ‘fruits’ doctrine developed in Fourth Amendment cases—… simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment”); Elstad, supra, at 306 (unlike the Fourth Amendment exclusionary rule, the “Miranda exclusionary rule … serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself”); see also United States v. Patane, post, at ___ (slip op., at 1) (Kennedy, J., concurring in judgment) (refusal to suppress evidence obtained following an unwarned confession in Elstad, New York v. Quarles, 467 U. S. 649 (1984), and Harris v. New York, 401 U. S. 222 (1971), was based on “our recognition that the concerns underlying the Miranda … rule and other objectives of the criminal justice system must be accommodated”). Consistent with that view, the Court today refuses to apply the traditional “fruits” analysis to the physical fruit of a claimed Miranda violation. Patane, post, p. ___. The plurality correctly refuses to apply a similar analysis to testimonial fruits.
Although the analysis the plurality ultimately espouses examines the same facts and circumstances that a “fruits” analysis would consider (such as the lapse of time between the two interrogations and change of questioner or location), it does so for entirely different reasons. The fruits analysis would examine those factors because they are relevant to the balance of deterrence value versus the “drastic and socially costly course” of excluding reliable evidence. Nix v. Williams, 467 U. S. 431, 442–443 (1984). The plurality, by contrast, looks to those factors to inform the psychological judgment regarding whether the suspect has been informed effectively of her right to remain silent. The analytical underpinnings of the two approaches are thus entirely distinct, and they should not be conflated just because they function similarly in practice. Cf. ante, at 1–2 (concurring opinion).
The plurality’s rejection of an intent-based test is also, in my view, correct. Freedom from compulsion lies at the heart of the Fifth Amendment, and requires us to assess whether a suspect’s decision to speak truly was voluntary. Because voluntariness is a matter of the suspect’s state of mind, we focus our analysis on the way in which suspects experience interrogation. See generally Miranda, 384 U. S., at 455 (summarizing psychological tactics used by police that “undermin[e]” the suspect’s “will to resist,” and noting that “the very fact of custodial interrogation … trades on the weakness of individuals”); id., at 467 (“[I]n-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely”).
Thoughts kept inside a police officer’s head cannot affect that experience. See Moran v. Burbine, 475 U. S. 412, 422 (1986) (“Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right”). In Moran, an attorney hired by the suspect’s sister had been trying to contact the suspect and was told by the police, falsely, that they would not begin an interrogation that night. Id., at 416–418. The suspect was not aware that an attorney had been hired for him. Id., at 417. We rejected an analysis under which a different result would obtain for “the same defendant, armed with the same information and confronted with precisely the same police conduct” if something not known to the defendant—such as the fact that an attorney was attempting to contact him—had been different. Id., at 422. The same principle applies here. A suspect who experienced the exact same interrogation as Seibert, save for a difference in the undivulged, subjective intent of the interrogating officer when he failed to give Miranda warnings, would not experience the interrogation any differently. “[W]hether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident.” 475 U. S., at 423. Cf. Stansbury v. California, 511 U. S. 318, 324–325 (1994) (per curiam) (police officer’s subjective intent is irrelevant to whether suspect is in custody for Miranda purposes; “one cannot expect the person under interrogation to probe the officer’s innermost thoughts”).
Because the isolated fact of Officer Hanrahan’s intent could not have had any bearing on Seibert’s “capacity to comprehend and knowingly relinquish” her right to remain silent, Moran, supra, at 422, it could not by itself affect the voluntariness of her confession. Moreover, recognizing an exception to Elstad for intentional violations would require focusing constitutional analysis on a police officer’s subjective intent, an unattractive proposition that we all but uniformly avoid. In general, “we believe that ‘sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources.’ ” United States v. Leon, 468 U. S. 897, 922, n. 23 (1984) (quoting Massachusetts v. Painten, 389 U. S. 560, 565 (1968) (per curiam) (White, J., dissenting)). This case presents the uncommonly straightforward circumstance of an officer openly admitting that the violation was intentional. But the inquiry will be complicated in other situations probably more likely to occur. For example, different officers involved in an interrogation might claim different states of mind regarding the failure to give Miranda warnings. Even in the simple case of a single officer who claims that a failure to give Miranda warnings was inadvertent, the likelihood of error will be high. See W. LaFave, Search and Seizure §1.4(e), p. 124 (3d ed. 1996) (“[T]here is no reason to believe that courts can with any degree of success determine in which instances the police had an ulterior motive”).
These evidentiary difficulties have led us to reject an intent-based test in several criminal procedure contexts. For example, in New York v. Quarles, 467 U. S. 649 (1984), one of the factors that led us to reject an inquiry into the subjective intent of the police officer in crafting a test for the “public safety” exception to Miranda was that officers’ motives will be “largely unverifiable.” 467 U. S., at 656. Similarly, our opinion in Whren v. United States, 517 U. S. 806, 813–814 (1996), made clear that “the evidentiary difficulty of establishing subjective intent” was one of the reasons (albeit not the principal one) for refusing to consider intent in Fourth Amendment challenges generally.
For these reasons, I believe that the approach espoused by Justice Kennedy is ill advised. Justice Kennedy would extend Miranda’s exclusionary rule to any case in which the use of the “two-step interrogation technique” was “deliberate” or “calculated.” Ante, at 4–5 (opinion concurring in judgment). This approach untethers the analysis from facts knowable to, and therefore having any potential directly to affect, the suspect. Far from promoting “clarity,” ibid., the approach will add a third step to the suppression inquiry. In virtually every two-stage interrogation case, in addition to addressing the standard Miranda and voluntariness questions, courts will be forced to conduct the kind of difficult, state-of-mind inquiry that we normally take pains to avoid.
The plurality’s adherence to Elstad, and mine to the plurality, end there. Our decision in Elstad rejected two lines of argument advanced in favor of suppression. The first was based on the “fruit of the poisonous tree” doctrine, discussed above. The second was the argument that the “lingering compulsion” inherent in a defendant’s having let the “cat out of the bag” required suppression. 470 U. S., at 311. The Court of Appeals of Oregon, in accepting the latter argument, had endorsed a theory indistinguishable from the one today’s plurality adopts: “[T]he coercive impact of the unconstitutionally obtained statement remains, because in a defendant’s mind it has sealed his fate. It is this impact that must be dissipated in order to make a subsequent confession admissible.” 61 Ore. App. 673, 677, 658 P. 2d 552, 554 (1983).
We rejected this theory outright. We did so not because we refused to recognize the “psychological impact of the suspect’s conviction that he has let the cat out of the bag,” but because we refused to “endo[w]” those “psychological effects” with “constitutional implications.” 470 U. S., at 311. To do so, we said, would “effectively immuniz[e] a suspect who responds to pre-Miranda warning questions from the consequences of his subsequent informed waiver,” an immunity that “comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual’s interest in not being compelled to testify against himself.” Id., at 312. The plurality might very well think that we struck the balance between Fifth Amendment rights and law enforcement interests incorrectly in Elstad; but that is not normally a sufficient reason for ignoring the dictates of stare decisis.
I would analyze the two-step interrogation procedure under the voluntariness standards central to the Fifth Amendment and reiterated in Elstad. Elstad commands that if Seibert’s first statement is shown to have been involuntary, the court must examine whether the taint dissipated through the passing of time or a change in circumstances: “When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.” 470 U. S., at 310 (citing Westover v. United States, decided with Miranda, 384 U. S., at 494). In addition, Seibert’s second statement should be suppressed if she showed that it was involuntary despite the Miranda warnings. Elstad, supra, at 318 (“The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements”). Although I would leave this analysis for the Missouri courts to conduct on remand, I note that, unlike the officers in Elstad, Officer Hanrahan referred to Seibert’s unwarned statement during the second part of the interrogation when she made a statement at odds with her unwarned confession. App. 70 (“ ’Trice, didn’t you tell me that he was supposed to die in his sleep?”); cf. Elstad, supra, at 316 (officers did not “exploit the unwarned admission to pressure respondent into waiving his right to remain silent”). Such a tactic may bear on the voluntariness inquiry. Cf. Frazier v. Cupp, 394 U. S. 731, 739 (1969) (fact that police had falsely told a suspect that his accomplice had already confessed was “relevant” to the voluntariness inquiry); Moran, 475 U. S., at 423–424 (in discussing police deception, stating that simply withholding information is “relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them”); Miranda, supra, at 476.
Because I believe that the plurality gives insufficient deference to Elstad and that Justice Kennedy places improper weight on subjective intent, I respectfully dissent.


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Justia › US Law › US Case Law › US Supreme Court › Volume 115 › New Orleans Gas Co. v. Louisiana Light Co.
See also Greenwood v. Freight Co., 105 U. S. 20; New Jersey v. Yard, 95 U. S. 113.
That there is a power, sometimes called the police power, which has never been surrendered by the states, in virtue of which they may, within certain limits, control everything within their respective territories, and upon the proper exercise of which, under some circumstances, may depend the public health, the public morals, or the public safety is conceded in all the cases. Gibbons v. Ogden, 9 Wheat. 1, 22 U. S. 203. In its broadest sense, as sometimes defined, it includes all legislation and almost every function of civil government. Barbier v. Connolly, 113 U. S. 31. As thus defined, we may not improperly refer to that power the authority of the state to create educational and charitable institutions and provide for the establishment, maintenance, and control of public high ways, turnpike roads, canals, wharves, ferries, and telegraph lines, and the draining of swamps. Definitions of the police power must, however, be taken subject to the condition that the state cannot, in its exercise, for any purpose whatever, encroach upon the powers of the general government or rights granted or secured by the supreme law of the land.
See also West River Bridge Co. v. Dix, 6 How. 507, 47 U. S. 531.
a valuable consideration at the time advanced or for services to be thereafter performed, constitutes a contract within the meaning of the Constitution. Asylum v. New Orleans, 105 U. S. 368; Home of the Friendless v. Rouse, 8 Wall. 430; New Jersey v. Wilson, 7 Cranch 164, 11 U. S. 166; Bank of Ohio v. Knoop, 16 How. 363, 57 U. S. 376; Gordon v. Appeal Tax Court, 3 How. 133; Wimington Railroad v. Reid, 13 Wall. 264, 80 U. S. 266; Humphrey v. Pegues, 16 Wall 244, 83 U. S. 248-249; Farrington v. Tennessee, 95 U. S. 689.
P. 57 U. S. 429.
McClure, 10 Wall. 511; Ohio Life Ins. & T. Co. v. Debolt, 16 How. 429; Sedgwick's Stat. & Const. Law 637. And the obligation of her contracts is as fully protected by that instrument against impairment by legislation as are contracts between individuals exclusively. State v. Wilson, 7 Cranch 164; Providence Bank v. Billings, 4 Pet. 514; Green v. Biddle, 8 Wheat. 1; Woodruff v. Trapnall, 10 How. 190; Wolff v. New Orleans, 103 U. S. 358.
If, in the judgment of the state, the public interests will be best subserved by an abandonment of the policy of granting exclusive privileges to corporations other than railroad companies, in consideration of services to be performed by them for the public, the way is open for the accomplishment of that result with respect to corporations whose contracts with the state are unaffected by that change in her organic law. The rights and franchises which have become vested upon the faith of such contracts can be taken by the public, upon just compensation to the company, under the state's power of eminent domain. West River Bridge Co. v. Dix, ubi supra; 54 U. S. Railroad Co. v. Louisa Railroad Co., 13 How. 71, 54 U. S. 83; Boston Water Power Co. v. Boston & Worcester Railroad, 23 Pick. 360, 393; Boston & Lowell Railroad Co. v. Salem & Lowell Railroad Co., 2 Gray 1, 35. In that way the plighted faith of the public will be kept with those who have made large investments upon the assurance by the state that the contract with them will be performed.

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