Boston Marathon Bombing

The FBI Did Not Need a Miranda Exception to Question Tsarnaev About Ticking Bombs



The lead story in today's New York Times says that in questioning Boston bombing suspect Dzhokhar Tsarnaev before reading him his rights, the FBI invoked "the public safety exception to the Miranda Rule, a procedure authorized by a 1984 Supreme Court decision which in certain circumstances allows interrogation after an arrest without notifying a prisoner of the right to remain silent." But as I pointed out in my column last week, police are always free to question an arrestee before Mirandizing him; it's just that statements elicited by such questioning ordinarily cannot be used to prosecute him. The Times reports that in addition to saying he knew of no additional bombs or terrorist plots during the initial interrogation, Tsarnaev confirmed his involvement in the attack on the Boston Marathon. Without the "public safety" exception, that admission of guilt could not be used against him in court. But given all the other sources of evidence in this case—including video, photographs, witnesses, and leftover bomb-making materials as well as any statements Tsarnaev made after he was read his rights—that exclusion probably would not matter much.  

By contrast, in New York v. Quarles, the 1984 Supreme Court case that gave rise to the public-safety exception, the Miranda rule initially led to the dismissal of a weapons charge because police found the suspect's gun after he indicated where he had hidden it in response to a question asked before he was read his rights. As Justice Sandra Day O'Connor pointed out in a concurring opinion, it is not clear that the gun actually had to be excluded based on the Miranda rule as it stood before the Court invented the public-safety exception. "Nothing in Miranda or the privilege itself requires exclusion of nontestimonial evidence derived from informal custodial interrogation," she wrote. In any event, when you look at the details of the arrest it is clear that there was in fact no emergency that made it necessary to ask the suspect about the gun before he was Mirandized. The gun posed no immediate threat, and police would have easily found it if they had simply looked around a little.  The Tsarnaev case looks like a mirror image of Quarles. On one hand, there was a plausible public-safety rationale for questioning the arrestee before reading him his rights: a fear of unexploded bombs or imminent attacks. On the other hand, excluding the results of the initial interrogation probably would not have a crucial effect on the suspect's prosecution.

But even in cases involving a true emergency where excluding an un-Mirandized confession would make it substantially harder to convict the suspect, the public-safety exception makes no sense if you accept the logic of Miranda v. Arizona. That decision was based on the recognition that questioning someone in police custody is inherently coercive. Unless the arrestee is clearly informed that he is under no obligation to reply, the Court reasoned, the Fifth Amendment guarantee against compelled self-incrimination is apt to be compromised. The wisdom of that safeguard is confirmed by the very expectation that supposedly justifies the public-safety exception: that a suspect will talk more readily if he thinks he has no choice.

Fear of ticking bombs may have been a good reason to question Tsarnaev before Mirandizing him. But it is not a good reason to admit what he said in response as evidence against him, because the existence of an emergency does not make police custody any less coercive. In fact, the opposite is probably true. Coming to in a hospital and confronted by FBI agents anxious to find out if he knew of any imminent threats, the gravely wounded Tsarnaev may very well have concluded that he had no option but to answer their questions. The next day, after he was informed of his rights and the charges against him, he probably had a different view of the situation. Once a suspect understands that he need not answer questions, critics of Miranda worry, he might clam up. But that is the whole point. There is always the danger that people who know their constitutional rights may choose to exercise them.    

NEXT: Florida Supreme Court Rules Police Need Warrant to Search Cellphones

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  1. It’s ultimately not Tsarnaev’s fault that authorities lifted the blanket house arrest on Boston too soon. Officials caused the public safety concern by letting people out of their homes and therefore should not profit from it with a Miranda exception.

    On a more or less serious note, if a person requests an attorney, can authorities continue questioning?

    1. On a more or less serious note, if a person requests an attorney, can authorities continue questioning?

      No. But that doesn’t mean anything. They’ll just lie in their report and say you waived your Miranda rights, and it’s up to you to prove otherwise.

    2. I think they can’t continue questioning until the attorney comes (as that is their first amendment right), but the accused does not have to answer the new questions.

  2. The 6th amendment says that “and to have the Assistance of Counsel for his defence”. The original meaning of the phrase seems to be that people should be able to hire any lawyer they want, and the government can’t tell them you can’t hire this-or-that lawyer, or you can’t have a lawyer at all. Is that correct?

    Then starting with the New Deal Court, the phrase got expanded to mean providing free lawyers to certain people. Eventually with the Warren Court we got the famous Gideon versus Wainright, and now in all federal and state courts, you get a lawyer if you can’t afford one (though not for traffic court and such). See…..f_counsel.

    The New Deal Court probably ruled that way because free lawyers are part of a public works program. The Warren Court is of course known to be extremely liberal.

    I like to go back to the original meaning of the 6th amendment. I think this if everyone represented themselves, the laws would be simpler, people would be less likely to cut deals at the advice of counsel, and we might actually have fewer people in jail.

    1. The text is ambiguous so I’d come down on the side of making things more likely to reach the correct conclusion. The police have a lawyer, so the defendant should have a lawyer too. With no defense lawyer you’re more likely to get an unjust conviction/confession, while I don’t see a defense lawyer as being an obstacle to a correct conviction.

      1. Yeah, but free lawyers are welfare, which is not libertarian.

  3. I’m also not sure I agree with Miranda. Where in the constitution does it say you have to be informed of your 5th amendment right to not speak? I disagree with free lawyers too, which is based on an expanded meaning of the 6th amendment. Regarding waterboarding, I don’t think it violates the 8th amendment in general. Well it does violate the 8th amendment before you find them guilty, but once you’ve found them guilty then it’s OK because it is commensurate with their crime — ie. if some was found guilty of running a red light then waterboarding would be illegal because their crime of running a red light does warrant this.

    1. The Mirandizing requirement is a prophylactic measure to enforce the 5th amendment. Just like the exclusionary rule for unreasonable searches (also not in the constitution) is used to enforce the 4th amendment.

      Of course, that means the courts are free to reshape it in any way they deem necessary. The Quarles court decided that enforcing Miranda was not worth endangering public safety. If the defendant can show that he or she was coerced into an admission, then that evidence would still be thrown out; Miranda is not the ONLY protection of the 5th amendment. eg, if a cop Mirandizes you, then tells you he’s going to break one of your fingers every 5 minutes if you don’t confess, you still can get that confession thrown out.

  4. But Batman would have turned off his IV pain killing drip until he talked. Of course, Batman isn’t an agent of the state.

    1. I’m of the opinion that the cops’/DA’s claims that Batman wasn’t an agent of the state in TDK were a bit tendentious. They were meeting with him, telling him what they wanted, and he delivered it to them.

      It would be like if a cop told his brother that there was this awful criminal who they didn’t have enough evidence to convict, and gave his brother the address, and the brother went to the criminal’s house and beat a confession out of him (on video). Could that be used in court since it wasn’t a cop or official state person who coerced him?

  5. My favorite fact about Ernesto Miranda is that he was stabbed to death in a bar fight, his killer was read his Miranda rights and shut up, and later fled to Mexico.

  6. Jake, I think we’ve emailed before; but you seem to parrot O’Connor’s glib obfuscations of “nontestimonial” and “informal” without the scathing criticism they warrant.

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