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Boston Bombing Suspect Won’t Be Read His Miranda Rights

A strange loophole in the law means Dzhokhar Tsarnaev will be questioned without being advised of his Miranda Rights.

bill-of-rights

AP (“Why The Boston Bombing Suspect Won’t Be Read His Miranda Rights“):

A Justice Department official says the Boston Marathon bombing suspect will not be read his Miranda rights because the government is invoking a public safety exception.

That official and a second person briefed on the investigation says 19-year-old Dzhokhar Tsarnaev will be questioned by a special interrogation team for high-value suspects. The officials spoke on the condition of anonymity because they weren’t authorized to disclose the information publicly.

The public safety exception permits law enforcement officials to engage in a limited and focused unwarned interrogation of a suspect and allows the government to introduce the statement as evidence in court. The public safety exception is triggered when police officers have an objectively reasonable need to protect the police or the public from immediate danger.

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. His brother is dead. He’s in police custody. There are no remaining brothers.There’s no known connection to a broader group.

Why don’t authorities have 30 seconds to read him his rights before interrogating him? They could have done it on the way to jail with time to spare.

Update (Doug Mataconis): I’ve added my thoughts about this issue, as well as a look at the law behind it, in a post titled Dzhokhar Tsarnaev, Miranda, And The Public Safety Exception

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. edmondo says:

    He’s not in Guantanamo yet?

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  2. Alex Knapp says:

    Because there might still be bombs and guns out there. A loose weapon was the justification for the public safety exemption in the first place.

    Like or Dislike: Thumb up 2 Thumb down 1

  3. James Joyner says:

    @edmondo: He’s a US citizen captured here, so I don’t think that’s an option.

    Like or Dislike: Thumb up 4 Thumb down 0

  4. James Joyner says:

    @Alex Knapp: And that’s fine. But it seems to me that we can either 1) spare 30 seconds to Mirandize him or 2) consider the finding of said devices its own reward and thus be wiling to exclude them from additional evidence.

    Like or Dislike: Thumb up 2 Thumb down 0

  5. CSK says:

    It may have something to do with the fact that two men and a woman who lived with the younger suspect have been taken in for questioning; they might possibly–I say possibly–be part of a cell. If so, there could be others out there. I am, of course, speculating, but if there is such a cell, it could represent a continuing danger.

    The police also found undetonated IEDs at other locations, including the apartment in Cambridge. There could be more elsewhere that haven’t yet been located. I suppose that could represent an imminent danger.

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  6. Mark Ivey says:

    Curious how the right wingers will go on this…..

    :-))

    Like or Dislike: Thumb up 1 Thumb down 0

  7. rudderpedals says:

    James is right; it’s nuts. The anti-mirandizers seem to think that the magic words remove the defendant’s fifth amendment rights but all omitting the mantra does is make to make it harder to elicit admissible evidence. The right to remain silent of course remains intact.

    Like or Dislike: Thumb up 4 Thumb down 0

  8. C. Clavin says:

    It’s really hard to reconcile the 19 yr old weed smoker that changed schools because on had better parties…with a guy that places a bomb in a crowd of people.
    Hopefully that story gets filled in.

    Not sure what denying a citizen his Miranda rights gets you.
    But it will keep Republicanists, like Butters Graham, very happy.

    Congrats again to law enforcement who did an almost perfect job.

    Like or Dislike: Thumb up 4 Thumb down 1

  9. JKB says:

    Well, there are indications there may be likes to a wider network. The three CSK mentioned who were detained. Over at In From the Cold they mention that they found military-grade explosives with is indicative of links to an organized group.

    But in any case, I doubt they need any statement from him to be used against him. Lots of evidence that should be sufficient to convict. Not least the reported declaration made to the guy they carjacked that they committed capital murder of a police officer. Plus the eyewitness testimony of the police officers who put the traceable bullets in him the night before.

    Statements made that are used to go after others aren’t impacted by Miranda, I don’t think.

    And keep in mind, this is not some revocation of his right to remain silent. It is simply not reminding him of that right and still hoping to use his statements against him. The cops can always question you, but if you are in custody and they don’t do Miranda there is a risk what you say will be excluded from trial.

    Like or Dislike: Thumb up 3 Thumb down 1

  10. JKB says:

    @C. Clavin: Not sure what denying a citizen his Miranda rights gets you.

    They are not denying his Miranda rights because no such thing exists. What they are doing is not giving the Miranda warning by using a judicially recognized exception. An exception that could still be challenged by his defense and denied by a trial judge.

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  11. PD Shaw says:

    There is no loophole; there is no requirement to be Mirandized. It just means they risk not being able to admit his statements into evidence. Orin Kerr:

    A lot of people assume that the police are required to read a suspect his Miranda rights upon arrest. That is, they assume that one of a person’s rights is the right to be read their rights. It often happens that way on Law & Order, but that’s not what the law actually requires. The police aren’t required to follow Miranda. Miranda is a set of rules the government can chose to follow if they want to admit a person’s statements in a criminal case in court, not a set of rules they have to follow in every case.

    Like or Dislike: Thumb up 3 Thumb down 0

  12. markm says:

    It is some very odd legalese.

    They might have such an open and shut case with evidence that they don’t care what he says????. Dunno.

    The justice department is about to charge him so I am sure we will soon know.

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  13. edmondo says:

    @James Joyner:

    His brother was a US citizen, not him. I believe he is a foreign national.

    Like or Dislike: Thumb up 0 Thumb down 5

  14. PD Shaw says:

    To put it another way, if the only evidence we will have to convict this person of the murders is his confession, that would be outrageous, particularly since confessions aren’t 100% reliable anyway. I believe Tarmerlan won’t be confessing.

    Like or Dislike: Thumb up 1 Thumb down 0

  15. C. Clavin says:

    Republicanists love the Constitution and the idea of individual rights.
    Until they change their little minds…hobgoblins being what they are.
    Then they make shit up.
    Because this 19 yr old is a Super-Criminal.
    Like the Joker. Or the Riddler. Or Lex Luthor.

    Republicanists are funny.

    Like or Dislike: Thumb up 8 Thumb down 2

  16. JKB says:

    @PD Shaw: I believe Tarmerlan won’t be confessing.

    Tarmerlan is dead. This is the younger brother who is in custody. Who, by the way, ran over his brother so could be charged in his death as well.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. OzarkHillbilly says:

    @C. Clavin:

    Not sure what denying a citizen his Miranda rights gets you.

    A bunch of inadmissible evidence. Not sure it really matters as I rather suspect he has watched enough American TV to know his rights already. What I want to know is what the gov’t gains thru this move other than a whole lot of allegations (spurious and otherwise) his lawyer will use to muddy up the judicial works.

    Stupid.

    Like or Dislike: Thumb up 3 Thumb down 0

  18. Stonetools says:

    Since the suspect is currently receiving medical are and is not being interrogated, there may be no need to Mirandize him right now anyway. My guess is that hey are still investigating and waiting till they start interrogating till they give him his Miranda rights. Not a big deal just yet.
    Always remember, we don’t have all the information the government has. There may be good, public policy reasons why he hasn’t been mirandized yet.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. JKB says:

    @C. Clavin: and the idea of individual rights.

    Are you saying we should take a poll and abide by the majority opinion on whether he has his Constitutional rights?

    His Constitutional rights are not being abridged here. He has and has always had the right to remain silent.

    But remember, government is violence. The Constitution can only protect you if you can make your case in open court or via public opinion before people who respect the Constitution. If government seizes you and keeps you outside the courts, then you are pretty much on your own until someone else raises the issue with the public and public opinion forces political elected officials to exercise their authority to bring the person within the domain of the court.

    Like or Dislike: Thumb up 3 Thumb down 0

  20. JKB says:

    @Stonetools:

    You are correct there is no requirement to mirandize upon arrest, just before asking any questions about the crime. The interrogators don’t have to interrogate him, they can talk to him all they want as long as they don’t ask questions about the crime. If he foolishly corrects their story or spouts off, to bad for him.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. PD Shaw says:

    @JKB:”Tarmerlan is dead.”

    I know, my oblique point was that his confession is not necessary to know what he did. A confession is not that important.

    What is important are the national security details, which aren’t really relevant to his criminal prosecution.

    Like or Dislike: Thumb up 1 Thumb down 0

  22. This, however, does not seem to be one of those situations.

    Really? There could be stashes of bombs still sitting around. There could be additional conspirators still on the loose. This seems a pretty straight forward application of the public safety exception.

    Also worst case is they can’t use anything he tells them as testimony. At this point it doesn’t really look like they need his testimony.

    Like or Dislike: Thumb up 3 Thumb down 1

  23. Dave Schuler says:

    If they don’t care whether the cases that will inevitably filed against Mr. Tsarnaev hold up in court or are sustained on appeal, they’re certainly going in the right direction. This doesn’t seem to satisfy the requirements for the “public safety exception”.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. @OzarkHillbilly:

    Not sure it really matters as I rather suspect he has watched enough American TV to know his rights already.

    It’s so common on US TV that police in other countries have to deal with people demanding their Miranda rights even when they don’t have them in that jurisdiction.

    Like or Dislike: Thumb up 2 Thumb down 0

  25. OzarkHillbilly says:

    Scott Lemieux:

    It is true that, in a narrow sense, the federal government is free under Miranda to interrogate Tsarnaev without informing him of his rights if it believes it has enough independent evidence to convict him. But this is not the only consideration. Miranda does not require us to be indifferent about the distinction between coercive and non-coercive interrogations, and indeed its logic suggests that we shouldn’t be. Earl Warren, to his great credit, did not believe that there was a inherent contradiction between professionalism and the respect for the rights of the accused and crime control. (cut)

    To refuse to inform Tsarnaev of his rights — outside of the acknowledged emergency exception to Miranda — sends the opposite message. It’s the message of the previous administration — i.e. that the rule of law and the “war on terror” are incompatible, that slapping the label “terrorist” on a suspect means that professional procedures that respect the rights of the accused can’t work. This isn’t right — it’s wrong in terms of the values it represents and it’s wrong in terms of the underlying assumption that less respect for the rights of the accused means more effective crime control. The appropriate course of action is for Tsarnaev to be treated like any other criminal suspect, consistently with not only the letter but the spirit of Miranda. Coercive interrogations are wrong because they’re wrong, not just because the state isn’t permitted to introduce evidence gained from them. This is why the Bill of Rights contains the Fifth Amendment rights Miranda was designed to enforce.

    (my emphasis)

    Like or Dislike: Thumb up 3 Thumb down 0

  26. OzarkHillbilly says:

    Also Lemieux:

    Give Whitey Bulger this: he knew that getaways worked better if your boat was actually on water.

    Wins the internets, I think.

    Like or Dislike: Thumb up 2 Thumb down 0

  27. OzarkHillbilly says:

    @Stormy Dragon: Somehow or other, I am not surprised.

    Like or Dislike: Thumb up 0 Thumb down 0

  28. stonetools says:

    @Stormy Dragon:

    Other countries actually have their own version of such warnings, but they are known by other names. In the UK, such warnings are known as a “caution”( I learned THAT through BBC-TV, as “Have you cautioned the suspect yet? ”
    Its unfortunate that thanks to US TV, we think of the Miranda warnings as a ritual incantation that once recited at the time of arrest, blesses every statement made by the suspect thereafter with “admissibility”.
    In real life, the courts and the police don’t see it that way. The courts take care to inquire into whether the suspect understands the warnings given to him and makes a knowing and voluntary waiver of his rights.In the present case, the courts may well conclude that someone suffering from two bullet wounds and who may be in a semi-conscious state , may not understand warnings recited to him at the time of arrest. If I was the US Attorney, i would wait until he was in a medically stable condition and free of the influence of all drugs. I would then give him the warnings in English AND in Chechen(his native tongue.) I would then have him initial and sign a form listing such warnings( Such form would be in English and Chechen, of course). Then , and only then, would I proceed with any questioning (which would be videotaped). THAT’S how you do it, folks.

    Like or Dislike: Thumb up 4 Thumb down 0

  29. @stonetools:

    Some do, some don’t. In Italy, for example, you don’t have a right to remain silent and a refusal to answer police questions can be presented as evidence of guilt in court.

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  30. Gromitt Gunn says:

    @edmondo: Other way around.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. MM says:

    @Alex Knapp:

    Because there might still be bombs and guns out there. A loose weapon was the justification for the public safety exemption in the first place.

    That justification could literally be used to refuse to mirandize everyone going forward. Sure you just got popped for trespassing, but you may have planted a bomb at some point in the past.

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  32. @MM:

    Suggesting a guy arrested for simple trespassing may have planted bombs isn’t a reasonable suspicion. Suggesting the guy who already sent of half a dozen bombs may have planted more of them is reasonable.

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  33. You can’t Mirandize someone unless they are conscious and competent. It also does not need to be delivered until the questioning process is ready to begin, especially if the suspect is unconscious in the first place. If he’s not in a position to answer any questions at the moment anyway, it really doesen’t matter. Regardless, here we have confirmed Muslim terrorists committing heinous acts on US soil (again). Only difference this time is whether they are lone wolves or part of an operational group. US citizenship was conferred on the dead guy a year or so ago via naturalization. Since he’s dead, it dosen’t matter. However, the one in custody is Russian, NOT a US citizen. Therefore he qualifies directly as being an international terrorist actor who qualifies for the exception since we don’t know if additional acts are immediately planned by other operators affiliated with him.

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  34. Spartacus says:

    @James Joyner:

    consider the finding of said devices its own reward and thus be wiling to exclude them from additional evidence.

    Exactly! The fact that the statements could be used in court actually makes it less likely that someone will give statements.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. Spartacus says:

    @stonetools:

    I believe you used to be a prosecutor. At what point after being arrested is a person entitled to see an attorney? And does he have to ask for one or is one automatically given to him?

    Like or Dislike: Thumb up 0 Thumb down 0

  36. Mary G says:

    I am an ex-Democrat; I have never donated money in a Presidential election until last year, when I sent President Obama quite a lot of money (by my standards – not a lot compared to other people’s contributions) and I rather reluctantly joined Organizing for America for $5 a month. Not because I love them, but because I have so much fear and loathing for today’s Republicans.

    However, this is NOT what I signed up for. I have been going on Google to try to find a way to contact them, and when I do, I am quitting. The thought of “exceptions” to Constitutional protections makes my blood run cold. When Lindsey Graham made his string of idiotic tweets yesterday, I thought that he was crazy; the thought that Holder is taking any of his suggestions is appalling.

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  37. Mary G says:

    @Richard Landers: I believe you have this reversed. The dead one, the older one, was “boxing for citizenship” and felt that he was denied naturalization because of a conviction of domestic violence. The younger one was naturalized while in high school. He is still alive.

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  38. CSK says:

    @Mary G:

    He was naturalized on September 11, 2012, several months after his graduation.

    September 11.

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  39. James Joyner says:

    @bill: Almost 30 years ago now, I took an oath to “defend the Constitution of the United States against all enemies, foreign and domestic.” That’s what I’m doing here. I don’t care much about this individual, who’s an outlier even among accused murderers. I care very much about the Bill of Rights and the rule of law.

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  40. anjin-san says:

    @ bill

    we’ll take care of him and save the taxpayers a bunch of cash

    I think what you really mean is somebody else will take care of him while you cower somewhere far from any actual danger, and afterwards you will spend some more time talking tough on a blog.

    Like or Dislike: Thumb up 0 Thumb down 0

  41. matt bernius says:

    @bill:
    From the Play/Movie “A Man for All Seasons”:

    William Roper: So, now you give the Devil the benefit of law!

    Sir Thomas More: Yes! What would you do? Cut a great road through the law to get after the Devil?

    William Roper: Yes, I’d cut down every law in England to do that!

    Sir Thomas More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!

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