By Dan Kennedy • The press, politics, technology, culture and other passions

The Miranda exception and why I’m not concerned

I’ve been debating on Facebook with several people whose views I respect about the decision by law-enforcement officials to invoke the “public safety” exception and question Dzhokhar Tsarnaev without first reading him his Miranda rights.

I think it was the right call. The idea behind the public-safety exception is that the investigation must take precedence over the prosecution — that the paramount interest is to obtain any information that could protect the public. Consider:

  • There have been reports that the Tsarnaev brothers may have planted other bombs. Pete Williams of NBC News reported that police detonated an IED near the Berklee College of Music on Friday morning. Are there more? Where?
  • The Tsarnaev brothers may not have acted alone. Last night, police took into custody three people in New Bedford to question them about their possible ties to the surviving brother. Was the Boston Marathon bombing part of a larger plot?
  • We need to know what if any ties the Tsarnaevs might have had to foreign extremist organizations. We know that Tamerlan Tsarnaev had spent quite a bit of time overseas. The New Yorker’s David Remnick paints a chilling portrait of both brothers, and of Tamerlan in particular.

Despite all this, Emily Bazelon of Slate writes that even though she supports the public-safety exception, she opposes it in the case of Dzhokhar Tsarnaev. Her argument is inconsistent and illogical. If it’s all right to use it in investigating a major terrorist attack, and we just experienced a major terrorist attack, then what is the issue exactly?

Now, I’m not going all Dick Cheney here. If Tsarnaev’s lawyer argues later that his client’s non-Miranda-ized statements shouldn’t be used against him at trial, I will probably find myself in agreement. In any case, Tsarnaev could likely be convicted solely on the basis of the physical evidence.

But the whole purpose of the public-safety exception is to keep Tsarnaev talking and not plant the idea in his head that he ought to shut up. Not while there are so many unanswered questions about dangers that may still be out there.

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  1. I don’t see why they don’t give it to him.

    He knows.

  2. Michael Pahre

    I understand the principle behind why authorities are invoking the public safety exemption to Miranda for Dzhokhar Tsarnaev.

    Unfortunately, those same authorities may have also screwed up its implementation. At the same press conference that U.S. Attorney Carmen Ortiz confirmed that they would be invoking the exemption, Boston Police Commissioner Ed Davis said that the danger was passed after Dzhokhar’s arrest. (I can’t find the exact quotation of his remarks.)

    If the danger is passed, then there is no justification for a Miranda exemption — and Dzhokhar’s attorney could use the screw-up to his advantage, possibly even to the extent of getting his client off. That would be tragic.

  3. You argue very logically, as always. But to me it’s the larger issue – a slippery slope, depending on who is in power, who has authority, the level of abuse can be none or it can be great. For example if we get a Republican president again, then waterboarding could be considered a legit tactic for people being held and not arrested, etc.

  4. Dan Hamilton

    Very interesting and logical, but flawed, Dan. The entire handling of this terrible crisis serves as a showcase for how we as a society deal with terror in the modern world. We play by the damn rules, rules which apply to everybody. We do not give in to crowd-driven calls for revenge. We do not assassinate suspects — even the ubiquitous use of that word throughout the manhunt shows we believe in and respect due process.

    This is a vitally important example to the world and an effective deterrent to terror. To get technical and weasel around those rules right now would inject a sour note, tarnish that world image, and probably not yield any good intelligence or achieve the goals you articulated.

    Put another way, the more we let terror distort our justice system and freedoms and civil rights, the more “they” win.

  5. Andrew Langmead

    I can see a slight difference between the scenario Bazelon describes in New York v. Quarles and the events with the Tsarnaev brothers. The gun Quarles had was known to exist. It was seen by the victim and he had an empty gun holster. (What is the purpose of a gun holster besides to hold a gun.) Other IEDs, other accomplices, etc. are all things that you are showing have the potential to exist.

    The law enforcement authorities obviously know much more about what is going on than I do. If from the other witnesses they had information about other explosive devices or other accomplices that only Dzhokhar knew about, I can see the use of this public safety exception. If it was based on these things potentially existing, then I’m less sure. If he was read his rights, and did ask for a lawyer, I can imagine his lawyer working with him to tell of any other explosives so that the number of murders he is being charged with doesn’t increase while in custody.

  6. Dan Kennedy

    The prosecution will attempt to introduce statements Tsarnaev made before his rights were read to him, the defense will try to stop it and a judge will decide. At the moment, I’m comfortable with that.

    And, frankly, I can’t imagine the prosecution will have any trouble convicting him even if it can’t introduce a single statement he made. The physical evidence is overwhelming.

  7. Amelia I Voorsanger

    I totally agree that investigation to prevent further danger must take presedence over trial and that investigators must not be delayed by Mirandizing and waiting for lawyers etc when in the face of evident real potential danger.

  8. Jim Morrison

    The Public Safety exemption isn’t exactly rare. I don’t think it will be problematic for the prosecution. If this guy doesn’t meet the criteria for the exemption, who does?

  9. Having read this piece, I remain uncomfortable. The closest to me is the Khalil case, but based on what I’ve read (and since we know how lousy some of the reporting was, I’ll give law enforcement the benefit of the doubt), they didn’t see something on or near Tsarnaev that was comparable.

    I hope his lawyers go to town on this issue.

  10. Michael Pahre

    Dan, I have no disagreement with you that there appears to be ample evidence obtained prior to asserting the Miranda exception.

    The problem is that, in any trial that might take place, the prosecution will have to demonstrate that each and every single piece of evidence introduced has absolutely no causal link to information they obtained from the pre-Miranda interrogation of the suspect. The paper trail leading up to obtaining every single piece of evidence must be shown — and shown to be independent of information gleaned from the interrogation.

    A one-month trial now becomes a twelve-month trial. Still winnable, but much, more more difficult and complicated.

    That’s why it is a screw-up by the police commissioner. I just heard a prosecutor from the Oklahoma City bombings on MSNBC make very similar comments, pointing out the problems raised by that very BPD commissioner’s statement (although he incorrectly called him the Watertown police chief).

  11. I tend to agree with Mr. Kennedy. Also, just because the suspect hasn’t heard his rights read to him doesn’t mean they’re not in effect-he’s absolutely free to invoke his right to remain silent and refuse to answer questions until he consults with a lawyer, which I understand will happen in 48 hours.

    At this point, with conservatively speaking about 18,000 hours of Law & Order in heavy rotation on cable TV, I don’t have a lot of sympathy who doesn’t already know their rights.

  12. Aaron Read

    Physical evidence may be overwhelming, but the person’s state of mind is an important factor, too, and for that you need his own words. For example, if the older brother had effectively brainwashed the younger brother, that might not be enough to exonerate him, but I think most people would consider that something of an extenuating circumstance, and could be influential at sentencing.

    I personally feel that the Miranda exception is okay as a concept, but there must be concrete consequences for invoking this exception. Police and prosecutors do not generally check themselves, they rely on external checks and balances. You need something hovering in their minds that if they’re gonna invoke this rule, they know exactly what it will…and won’t…mean down the road. It’s too easy to disconnect the act from the consequences when it may or may not get reviewed by a judge down the road. And therefore too easy for police/prosecutors to start thinking that they can invoke such an exception every time, without consequences.

    I’m neither a cop nor a prosecutor, but I would think a simple, clear consequence would be welcomed by them. Having to constantly make judgment calls on a shifting landscape with severe POTENTIAL consequences must be exceedingly maddening. If not a hindrance to their jobs.

  13. Rich Carreiro

    There is NO all-encompassing constitutional right to a Miranda warning. SCOTUS has never held that.

    All SCOTUS has held is that IF you want to get the statements admitted at trial, THEN you have to have Mirandized the suspect before you got the statements.

    So law enforcement is perfectly free to question the suspect as much as they want, without Mirandizing him. They just can’t use what he says in any trial.

    Frankly, even without any statement he might ever give, they have more than enough on him to put him away for a long, long time.

    • Dan Kennedy

      @Rich: All true. But the whole point of the public safety exception is that it allows prosecutors to admit statements made before the Miranda warning was given. There are safeguards — the defense lawyer will argue against it, and a judge will make the final decision. For the moment, I’m comfortable with that, but we’ll see how it goes.

  14. Rich Carreiro

    Here’s a good piece on it from a 4th Amendment expert:

    “Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement. Chavez holds that a person’s Miranda rights are violated only if the statement is admitted in court, even if the statement is obtained in violation of Miranda. See id. at 772-73. Further, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda — only the actual statement can be excluded. See United States v. Patane, 542 U.S. 630 (2004). So, contrary to what a lot of people think, it is legal for the government to even intentionally violate Miranda so long as they don’t try to seek admission of the suspect’s statements in court”

  15. Bob Gardner

    It’s called a public safety exception but it’s really more of a political posturing exception.

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