Getting to the bottom of this Miranda question for the bomber

posted at 7:01 pm on April 20, 2013 by Jazz Shaw

This has been making the rounds quite a bit over the weekend, including some of our readers talking about it from an article earlier today. Quite a few people seem to be concerned (fair enough) or outright confused (including yours truly) over the situation where Dzhokhar Tsarnaev was not read his Miranda rights before being questioned.

As I pointed out earlier, there is apparently an exception granted under Miranda when public safety is at stake. But it’s rather ambiguous in terms of how we decide when the safety of the public is clearly in danger to a degree sufficient to invoke the exception. One protest over this is laid out fairly clearly. Quoting Joyner:

I have no problem in principle with an exigent circumstances exception to Miranda. I can envision situations where police simply don’t have time for this particular nicety because the public is truly in imminent danger.

This, however, does not seem to be one of those situations. I have no particular sympathy for Tsarnaev, who was given sanctuary in this country that allowed him to escape his war-torn homeland and have a much better life here only to, allegedly, terrorize the city he called home, murdering and maiming innocents. But there’s no theory of the case that I’m aware of that has the public in continued danger.

I’m afraid I have to disagree with Dr. Joyner on that one, at least to a point. When you’ve got two suspects (one dead) who were seen leaving and later throwing bombs and who left explosives in their apartment, the possibility that more nasty surprises are out there waiting certainly seems viable. And questioning the remaining suspect about it looks like fair game to me.

But a larger part of this question seems to be some confusion over precisely what sort of “rights” we’re talking about here. There is apparently nothing sacred about reading someone their Miranda rights unless you plan on using their statements in court anyway. Doug Mataconis explains.

Before getting into a discussion of the “public safety” exception, it’s important to recognize what Miranda does and does not require, and what the consequences are if the police do not comply with it properly. Contrary to the conclusion that most people are likely to gather from watching crime dramas like Law & Order, officers are not required to give the warning before they arrest someone and failure to give the warning will not result in dismissal of the case. Miranda is more properly seen as an evidentiary rule that the government must follow if it wishes to interrogate a suspect and eventual defendant and use whatever statements that interrogation elicits against him in court. If a suspect is not given his or her Miranda warnings and the state then attempts to utilize post-arrest statements against him, then the government will generally be barred from using that statement against him in Court. As Orin Kerr notes, however, the Supreme Court ruled in Chavez v. Martinez, 538 U.S. 760 (2003) that police may arrest a Defendant, fail to read him his rights, interrogate him, and obtain his statement as long as they don’t use the statement in Court. Additionally, the Court has held that evidence that the police discover as a result of a statement such as this can be used in Court against the defendant, which is radically different from 4th Amendment’s “fruit of a poisonous tree” doctrine which provides that any evidence obtained as a result of an illegal search, even indirectly, is inadmissble unless an exception applies.

It seems as if the big takeaways here relate to the fear that some have expressed that Tsarnaev might simply be let off if his attorney filed a protest over his questioning without his Miranda rights being read. He doesn’t legally have to have those rights read and will have no avenue to demand release over the lack of it. The only possible downside is that his statements might not be allowed as evidence in court. But the Public Safety exception could allow them to be used anyway, providing they don’t hold and question him for too long without taking that step.

Orin Kerr has a much more complete rundown of how this works, along with applicable supporting court cases. It’s worth a look, as I certainly picked up a few things there which I’d not realized before. In any event, it’s clearly too early to claim that law enforcement dropped the ball on this one, at least as I’m reading it.


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