You shouldn't care. Because not reading someone under arrest the Miranda warning is constitutionally irrelevant in and of itself. It only acquires relevance if the government seeks to have the statements admitted at trial.
Discussing the similar case of Faisal Shahzad, who attempted to bomb Times Square, Orin Kerr, a law professor who is an expert on the 4th Amendment wrote:
"Importantly, though, it would not have violated Shahzad’s constitutional rights to not read him his Miranda rights. A lot of people assume that the police are required to read a suspect his rights when he is arrested. 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. 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 that would be inadmissible in court. Chavez holds that a person’s constitutional rights are violated only if the prosecution tries to have the statement admitted in court. See id. at 772-73. Indeed, 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 is excluded. See United States v. Patane, 542 U.S. 630 (2004). So while it may sound weird, it turns out that obtaining a statement outside Miranda but not admitting it in court is lawful."
Being read your Miranda rights also serves as an explicit acknowledgement by the state that you have those rights. Most of the time, this isn't really important, but in this case it would have served a very important purpose.
The Bush administration systematically created a legal netherworld for people they captured on suspicion of terrorism -- people usually referred to as "enemy combatants". They weren't arrested per se, so they weren't entitled to a trial, lawyers, or even the basic rights we associate with a criminal trial such as protection against self-incrimination (i.e. the right to remain silent). On the other hand, the administration argued they weren't prisoners of war either, so the Geneva Convention didn't apply to them.
By defining enemy combatants in this negative way -- in terms of what they are not -- the Bush administration pushed enemy combatant status into a grey area where no pre-existing legal rules seemed to apply. That's how they argued that torture was legal: they said that laws prohibiting torture only applied to prisoners of war or people charged with crimes, and that because enemy combatants weren't either of those things, they could legally be tortured.
If they had read this guy his Miranda rights, the Obama administration would have made it clear that they would treat his future as a police matter and that they were rejecting the enemy combatant framework in this case. They failed to do that, and I think it's a wasted opportunity.
(By the way, when justifying drone strikes and the courtroom procedures at Guantanamo Bay, the Obama administration has continued the enemy combatant framework that Bush's lawyers established.)
It only seems weird if you think of Miranda (and various other procedural protections) as a "gotcha" to hinder police efforts, instead of what it is: a way to keep people ignorant of their 5th amendment rights from incriminating themselves. That's the alpha and the omega of Miranda. It's not a search and seizure protection at all, which is why evidence obtained as a result of a Miranda-less interrogation is nonetheless admissible.
Unfortunately, too many people conceive of the 4th and 5th amendment protections entirely as roadblocks to hinder police for the sake of hindering the police, instead of the targeted checks on police behavior that they are. In doing so they read important parts of the amendments (e.g. "unreasonable" or precisely what a protection applies to, or precisely what sorts of activity a protection prohibits) completely out of the text of the Constitution.
I'm not sure if having a reasonable opportunity to read someone their rights, then choosing not to, is in the spirit of the public safety exception. Public danger alone can't be the reason, since the whole reason for criminal law in the first place is to protect the public from danger. Interested if an actual lawyer could clarify.
If it doesn't matter, then why don't they just read him his rights? If reading the rights is just a formality, then why all the effort and trouble to avoid doing it? The problem really isn't this case specifically, the problem is what this says about the attitude of the government toward the rights of people who are accused of crimes. The government seems to be sliding toward the position that accused people do not have rights, and this is troubling. Basically, it is an important to ask whether the government should be allowed to have whatever it is that the government believes it is gaining by not reading the suspect his rights in this case.
Miranda is very complicated. It generally means that the person cannot be interrogated. The penalty for violating the rule is that anything said is inadmissible. That is an important difference. If, for example, the witness isnt read his Miranda rights but just chooses to say something, that is fair game because he wasnt being interrogated. (Further, this is also a simplification, the full extent of Miranda is complicated, so this is just a perhaps overly broad taste)
Sir Thomas More: 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!
Jesus people. Read about what the "public safety exception" actually is before going all police-state-paranoid.
If the FBI or police try to misuse or abuse the public safety exception to attempt to get Tsarnaev to incriminate himself then they are going to have some fun times in court and get their asses handed to them. I'm skeptical that that's what's happening. I'm also skeptical that he's not been read his rights before being interrogated. Let's keep our heads on straight and avoid operating on incomplete data.
"Dzhokhar Tsarnaev will not hear his Miranda rights before the FBI questions him Friday night" [id.]
This implies he'll be going through a potentially long interrogation with the FBI that may be admittable as evidence, without having been given a Miranda warning. There is definitely something about this application of the "public safety exception", and the stare decisis discussed in the article, that gives cause for concern. We generally prefer citizens to know of their fifth amendment protections prior to a custodial interrogation. The fact he was in possession of a weapon or other armaments in his person should not defeat this aim.
Why even have an exception? Surely public safety is more important than trying to add a confession to all of the other evidence. The exception seems like something that could be abused in other cases.
I'd go further, and say that no statements made by an accused person should be admissible in court. That way, you don't give any incentives for coercion.
There is literally no point having rights at all if there are exceptions to those rights which can be used but authority when things get difficult or controversial. A right is universal, if there is an exception, its is no longer universal, there for no longer a right. If a right is not universal, it becomes a privilege.
The whole point of rights is to protect individuals when things get difficult, when people's emotions or political bias over ride actual justice.
When everything is normal and fine, what do you need rights for? Nothing what so ever. You only rely on them in the extremes, when things go wrong or when you are being unfairly treated by the state (or business). But that is exactly when government, law enforcement, etc want to suspend them, and they do. So, in the end, it become totally pointless.
Let's cut to the chase, what if, as in this case, granting an individual their full rights could deprive others of their rights, like the right to not be blown up by another bomb?
You are suggesting that rights only have value if there are no exceptions to those rights. I disagree.
Rights have value, but there must be a way to assign value to each individual right for each person, otherwise, when you cannot grant everyone in society all of their rights simultaneously, how do you decide who gets which rights and who does not?
The rights here are the Miranda rights, not the requirement to be told about them. There's no exception to those rights being discussed as far as I can tell, just an exception to the requirement.
For people asking "how do we know he wont be read his rights" its because the DA Carmen Ortiz[1] said she wouldn't in the press conference immediately following the suspects capture[2].
Serious question... Have we verified that the reason he hasn't been mirandized yet is anything other than the fact that he's in serious condition and may not yet be able to affirm that he is aware of his rights?
Tsarnaev and his brother planted bombs. It is not unreasonable for the FBI to be concerned that they may have left other bombs in place that could detonate later. Or, that there were other people involved that we don't know about. Invoking the public safety exception to the Miranda rights seems prudent to me.
No, Tsarnaev and his brother did not plant bombs as of the current moment. They are SUSPECTS in a criminal investigation in which one or more parties planted bombs.
Be VERY, VERY careful before you throw out that distinction. One day you may find yourself arrested for something you did or didn't do, only to find public opinion very much against you based on little more than hearsay.
I thought witholding Miranda means that anything he says is inadmissible as evidence in a court of law – but it's not like there's a lack of other incriminating evidence so that they would need to use self-incrimination to form a case against him.
Because lawmakers are terrified of proper process under our legal system, really says a lot (remember most Senators are lawyers).
I guess all rights can have restrictions in this country except gun ownership.
Several Senators have insisted he should NOT be mirandized a couple days after voting down background-checks for all gun sales. I don't understand how they can not implode from their lack of consistency.
"if prevention rather than prosecution is to be our new main goal"
I find this increadibly dangerous. Does that mean the police will move against "potential" crimes? Against people making plans? I hereby jokingly declare that I am planning to steal a cucumber at my local supermarket. Does this make me a goal of preventive action? Did I commit a thought-crime?
1984 and Minority Report come to mind when people say stuff like this.
Crimes like "it is illegal to drive and use a mobile device" and "it is illegal to drive while intoxicated" are meant to be preventative. You are committing a crime merely by creating the risk that something bad could happen.
But where does it stop? If, hypothetically, children raised by a single mother are more likely to commit violent crimes, then it ought to be illegal to be a single mother. That sort of law, which seems crazy, seems to be along the same thought process of why you shouldn't use your cell phone while driving.
Conspiracy is already a crime. Your cucumber example wouldn't attract a response because nobody actually cares enough to prosecute it. For example if your cucumber was made of solid goal then you would become a target of preventive action.
The Miranda warning is just that, a warning. Some people mistakenly call it the Miranda rights, which is wrong. Your rights are in the Constitution, and the Miranda warning just reminds you of those rights.
Now, the question is this: do the authorities make a big deal of not reading him his Miranda warning simply because they expect that if they do he will excercise his rights? Or are they implying, without saying it explicitly that he has no constitutional rights? If it is the latter, then this is worse than declaring him an enemy combatant (for which I see no basis), since now it basically means that anyone the Feds want to nail badly enough can fall under this category.
Imagine a hacker who responsibly disclosed a security issue with some military property being declared as having no fifth amendment rights. Does that sound like a precident we want?
I am not in any way trying to condone Dzhokhar Tsarnaev's actions. At the very least, he fired shots at the police on his own accord and I am fairly certain we will find out a whole lot more terrible stuff as the investigation continues. However, I am not a fan of how the interrogation is being presented.
It's entirely to the authorities whether to Mirandize the suspect or not. Perhaps they think they already have so much evidence that they don't need any statements from the interrogation to convict. In that case, they're just looking for information.
Remember, the authorities are perfectly free to interrogate you as much as they like without reading you any warnings at all. It's only at trial that the warnings become relevant. If your case isn't going to trial, it's not relevant.
I'm also concerned that the information (such as a confession) he gives may be rendered inadmissible in the future by the Supreme Court if it ever rules that the public safety exception was improperly applied in this interrogation.
This is no different than "Signature" killings via UAV, nor is it much different than the Telcoms receiving immunity for their participation in the unconstitutional domestic surveillance program.
It's just another example of how far our nation has fallen in a relatively short period of time.
This isn't really a question of a confession as much as it is Holder's DOJ has a long history of expanding the definition of the exemption. If they ask him where he's keeping any bombs, fine, but if they're doing this purely for long-term intelligence reasons above and beyond any clear or present dangers, I'm not sure if I would agree with that usage.
He has the same rights as any of us. The government chose to slightly jeopardize their prosecution, confession may be inadmissible, in the interest of public safety.
Dzhokhar was in no state to hear his Miranda rights. He was in serious need of medical attention, so the highest priority is his medical attention, not reading an injured person his miranda rights. Also, I'm not sure if he'd even have been able to repsond that he understood.
I went to highschool with this guy at CRLS and after going there you know your miranda rights as well as exactly whats legal and whats not. they make sure of that, and that he'll stand up for them. weather the FBI cares or not is beyond our hands reach at this point
[+] [-] hncommenter13|13 years ago|reply
Discussing the similar case of Faisal Shahzad, who attempted to bomb Times Square, Orin Kerr, a law professor who is an expert on the 4th Amendment wrote:
"Importantly, though, it would not have violated Shahzad’s constitutional rights to not read him his Miranda rights. A lot of people assume that the police are required to read a suspect his rights when he is arrested. 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. 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 that would be inadmissible in court. Chavez holds that a person’s constitutional rights are violated only if the prosecution tries to have the statement admitted in court. See id. at 772-73. Indeed, 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 is excluded. See United States v. Patane, 542 U.S. 630 (2004). So while it may sound weird, it turns out that obtaining a statement outside Miranda but not admitting it in court is lawful."
Oops, link: http://www.volokh.com/2010/05/05/shahzad-and-miranda-rights/
[+] [-] lbarrow|13 years ago|reply
The Bush administration systematically created a legal netherworld for people they captured on suspicion of terrorism -- people usually referred to as "enemy combatants". They weren't arrested per se, so they weren't entitled to a trial, lawyers, or even the basic rights we associate with a criminal trial such as protection against self-incrimination (i.e. the right to remain silent). On the other hand, the administration argued they weren't prisoners of war either, so the Geneva Convention didn't apply to them.
By defining enemy combatants in this negative way -- in terms of what they are not -- the Bush administration pushed enemy combatant status into a grey area where no pre-existing legal rules seemed to apply. That's how they argued that torture was legal: they said that laws prohibiting torture only applied to prisoners of war or people charged with crimes, and that because enemy combatants weren't either of those things, they could legally be tortured.
If they had read this guy his Miranda rights, the Obama administration would have made it clear that they would treat his future as a police matter and that they were rejecting the enemy combatant framework in this case. They failed to do that, and I think it's a wasted opportunity.
(By the way, when justifying drone strikes and the courtroom procedures at Guantanamo Bay, the Obama administration has continued the enemy combatant framework that Bush's lawyers established.)
[+] [-] rayiner|13 years ago|reply
Unfortunately, too many people conceive of the 4th and 5th amendment protections entirely as roadblocks to hinder police for the sake of hindering the police, instead of the targeted checks on police behavior that they are. In doing so they read important parts of the amendments (e.g. "unreasonable" or precisely what a protection applies to, or precisely what sorts of activity a protection prohibits) completely out of the text of the Constitution.
[+] [-] cynicalkane|13 years ago|reply
https://en.wikipedia.org/wiki/Miranda_warning#Public_safety_...
I'm not sure if having a reasonable opportunity to read someone their rights, then choosing not to, is in the spirit of the public safety exception. Public danger alone can't be the reason, since the whole reason for criminal law in the first place is to protect the public from danger. Interested if an actual lawyer could clarify.
[+] [-] glesica|13 years ago|reply
[+] [-] chacham15|13 years ago|reply
[+] [-] dreamdu5t|13 years ago|reply
The public safety exemption to Miranda rights DOES allow the results of questioning to be used as evidence. That is what is happening here.
This exception stems from https://en.wikipedia.org/wiki/New_York_v._Quarles
[+] [-] VikingCoder|13 years ago|reply
Or any evidence that those statements lead them to, if I'm not mistaken.
[+] [-] unknown|13 years ago|reply
[deleted]
[+] [-] tantalor|13 years ago|reply
[deleted]
[+] [-] michaelhoffman|13 years ago|reply
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!
[+] [-] InclinedPlane|13 years ago|reply
If the FBI or police try to misuse or abuse the public safety exception to attempt to get Tsarnaev to incriminate himself then they are going to have some fun times in court and get their asses handed to them. I'm skeptical that that's what's happening. I'm also skeptical that he's not been read his rights before being interrogated. Let's keep our heads on straight and avoid operating on incomplete data.
[+] [-] ghayes|13 years ago|reply
This implies he'll be going through a potentially long interrogation with the FBI that may be admittable as evidence, without having been given a Miranda warning. There is definitely something about this application of the "public safety exception", and the stare decisis discussed in the article, that gives cause for concern. We generally prefer citizens to know of their fifth amendment protections prior to a custodial interrogation. The fact he was in possession of a weapon or other armaments in his person should not defeat this aim.
[+] [-] axus|13 years ago|reply
I'd go further, and say that no statements made by an accused person should be admissible in court. That way, you don't give any incentives for coercion.
[+] [-] alan_cx|13 years ago|reply
The whole point of rights is to protect individuals when things get difficult, when people's emotions or political bias over ride actual justice.
When everything is normal and fine, what do you need rights for? Nothing what so ever. You only rely on them in the extremes, when things go wrong or when you are being unfairly treated by the state (or business). But that is exactly when government, law enforcement, etc want to suspend them, and they do. So, in the end, it become totally pointless.
[+] [-] eggnet|13 years ago|reply
You are suggesting that rights only have value if there are no exceptions to those rights. I disagree.
Rights have value, but there must be a way to assign value to each individual right for each person, otherwise, when you cannot grant everyone in society all of their rights simultaneously, how do you decide who gets which rights and who does not?
[+] [-] bostonpete|13 years ago|reply
[+] [-] wavesounds|13 years ago|reply
1. https://petitions.whitehouse.gov/petition/remove-united-stat...
2. I haven't been able to find video although I saw it live, this site confirms http://www.theblaze.com/stories/2013/04/19/boston-bombing-su...
[+] [-] philwelch|13 years ago|reply
[+] [-] brm|13 years ago|reply
[+] [-] InclinedPlane|13 years ago|reply
So, no.
[+] [-] nhebb|13 years ago|reply
[+] [-] geuis|13 years ago|reply
Be VERY, VERY careful before you throw out that distinction. One day you may find yourself arrested for something you did or didn't do, only to find public opinion very much against you based on little more than hearsay.
[+] [-] cinquemb|13 years ago|reply
But believe in your State™.
[+] [-] dyno12345|13 years ago|reply
[+] [-] starnixgod|13 years ago|reply
[+] [-] ck2|13 years ago|reply
I guess all rights can have restrictions in this country except gun ownership.
Several Senators have insisted he should NOT be mirandized a couple days after voting down background-checks for all gun sales. I don't understand how they can not implode from their lack of consistency.
[+] [-] Derbasti|13 years ago|reply
I find this increadibly dangerous. Does that mean the police will move against "potential" crimes? Against people making plans? I hereby jokingly declare that I am planning to steal a cucumber at my local supermarket. Does this make me a goal of preventive action? Did I commit a thought-crime?
1984 and Minority Report come to mind when people say stuff like this.
[+] [-] hermannj314|13 years ago|reply
But where does it stop? If, hypothetically, children raised by a single mother are more likely to commit violent crimes, then it ought to be illegal to be a single mother. That sort of law, which seems crazy, seems to be along the same thought process of why you shouldn't use your cell phone while driving.
[+] [-] analog|13 years ago|reply
http://en.wikipedia.org/wiki/Conspiracy_(crime)
[+] [-] IgorPartola|13 years ago|reply
Now, the question is this: do the authorities make a big deal of not reading him his Miranda warning simply because they expect that if they do he will excercise his rights? Or are they implying, without saying it explicitly that he has no constitutional rights? If it is the latter, then this is worse than declaring him an enemy combatant (for which I see no basis), since now it basically means that anyone the Feds want to nail badly enough can fall under this category.
Imagine a hacker who responsibly disclosed a security issue with some military property being declared as having no fifth amendment rights. Does that sound like a precident we want?
I am not in any way trying to condone Dzhokhar Tsarnaev's actions. At the very least, he fired shots at the police on his own accord and I am fairly certain we will find out a whole lot more terrible stuff as the investigation continues. However, I am not a fan of how the interrogation is being presented.
[+] [-] thrownaway2424|13 years ago|reply
Remember, the authorities are perfectly free to interrogate you as much as they like without reading you any warnings at all. It's only at trial that the warnings become relevant. If your case isn't going to trial, it's not relevant.
[+] [-] willurd|13 years ago|reply
[+] [-] brianchu|13 years ago|reply
[+] [-] D9u|13 years ago|reply
It's just another example of how far our nation has fallen in a relatively short period of time.
[+] [-] Steko|13 years ago|reply
[+] [-] zecho|13 years ago|reply
[+] [-] geuis|13 years ago|reply
If we don't treat the worst of us the same as the best, what can the rest of us expect?
[+] [-] youngerdryas|13 years ago|reply
[+] [-] kefka|13 years ago|reply
[+] [-] SilentStump|13 years ago|reply
[+] [-] SworDsy|13 years ago|reply