Cite as: 512 U. S. 452 (1994)
Scalia, J., concurring
§§ 3501(a), (b) (emphases added). It continues (lest the import be doubtful): "The presence or absence of any of the above-mentioned factors . . . need not be conclusive on the issue of voluntariness of the confession." § 3501(b). Legal analysis of the admissibility of a confession without reference to these provisions is equivalent to legal analysis of the admissibility of hearsay without consulting the Rules of Evidence; it is an unreal exercise. Yet as the Court observes, see ante, at 457-458, n., that is precisely what the United States has undertaken in this case. It did not raise § 3501(a) below and asserted that it is "not at issue" here, Brief for United States 18, n. 13.*
This is not the first case in which the United States has declined to invoke § 3501 before us—nor even the first case in which that failure has been called to its attention. See Tr. of Oral Arg. in United States v. Green, O. T. 1992, No. 91-1521, pp. 18-21. In fact, with limited exceptions the
*The United States makes the unusually self-denying assertion that the provision "in any event would appear not to be applicable in court-martial cases" since (1) court-martial cases are not " 'criminal prosecutions' " within the meaning of the Sixth Amendment and "therefore would not appear to be 'criminal prosecution[s]' for purposes of Section 3501(a)," and (2) courts-martial are governed by Article 31 of the Uniform Code of Military Justice, 10 U. S. C. § 831, and Rules 304 and 305 of the Military Rules of Evidence. The first point seems to me questionable: The meaning of terms in statutes does not necessarily parallel their meaning in the Constitution. Moreover, even accepting the premise that § 3501 does not apply to courts-martial directly, it does apply indirectly, through Rule 101(b)(1) of the Military Rules of Evidence, which requires courts-martial to apply "the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." As for the second point: The cited provisions of the Uniform Code and the Military Rules may (though I doubt it) be independent reasons why the confession here should be excluded, but they cannot possibly be reasons why § 3501 does not prevent Miranda v. Arizona, 384 U. S. 436 (1966), from being a basis for excluding them, which is the issue before us. In any event, the Court today bases its refusal to consider § 3501 not upon the fact that the provision is inapplicable, but upon the fact that the Government failed to argue it—and it is that refusal which my present statement addresses.
463
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