In this paper, we examine a series of special constitutional evidence rules that can be used in criminal enforcement against terrorists. Some of these rules expressly apply to terrorism cases; others contain an exigent circumstance element that can be adapted to terrorism contexts, and we so recommend. Building on the foundation provided by these special rules, we also propose a brand new exception in the area of coerced confessions.
Specifically, in the first Part of the paper, four existing "exceptions" to constitutional rules of evidentiary admissibility are examined—relating to fourth amendment protections, compulsory process, confrontation and Miranda. The first two of these exceptions were originally developed in connection with terrorism investigations; the second two apply to situations involving exigent circumstance-public safety concerns. The paper endorses the extension of one of these latter exceptions to terrorism investigations—namely, the public safety exception to the requirement of Miranda warnings. (Consistent with this recommendation, recently-made-public FBI guidelines have adapted this exception for use in interrogating suspected terrorists.) We also propose that the second of these public safety exceptions be extended to apply in terrorism investigations.
The second part of the paper, building on the described existing and proposed terrorism investigation exceptions, proposes and makes the case for the creation of a new exception relating to a fifth constitutional admissibility doctrine, one involving a hallowed area of constitutional criminal procedure—coerced confessions. A cabined exception is proposed, that is, one which, in exigent circumstances and to gather intelligence relevant to terrorism prevention, would apply an exception. It would allow government agents to utilize non-extreme police interrogation methods, the use of which, under existing supreme court precedents, might otherwise have been ruled to violate the Constitution.