It was almost fifty years ago that
the United States Supreme Court determined that individuals subjected to
custodial interrogation must be informed of their constitutional rights . Miranda v. Arizona (1966) was an
interesting amalgamation of four cases that had wound their ways to the U.S.
Supreme Court's docket. The four cases
had several factors in common. In each case, the defendant had been convicted
in some part through the use of a confession obtained by the police. In each case, the defendant had been
subjected to "incommunicado" interrogation.
In each case, the defendant had not been informed of his constitutional
rights.
Interestingly, none of the
defendants alleged that the police had coerced the confession. The sole contention was that they should have
been informed of their rights prior to being questioned. In its lengthy decision, the High Court
concluded that custodial interrogation is "inherently coercive". That is, the mere fact of being in custody
and being asked potentially incriminating questions creates a level of
intimidation (no matter how polite and kind the police may be behaving) that
must be counter balanced. The Court
concluded that the means by which this "inherent coercion" should be addressed
is the required reading of the now-famous Miranda rights.
Thereafter, custodial interrogation
of an arrestee required the officer to inform the individual, prior to any
questioning of the following constitutional rights: You have the right to remain silent; anything
you say can and will be used against you in a court of law; you have the right
to have an attorney present prior to and during questioning; if you cannot
afford an attorney one will be provide for you free of charge". It was the officer's responsibility to ensure
that the defendant understood these rights.
So after each recitation, the officer was required to ask "do you
understand this?" Assuming the arrestee
answered in the affirmative, the officer would ask at the conclusion of the reading
of the rights "Understanding all of these rights, are you willing to waive them
and speak to me now?" If the arrestee
agreed, the interrogation began. If the
arrestee refused, or otherwise indicated he wanted to remain silent or consult
with an attorney, the questioning ceased.
Most recently, the U.S. Supreme
Court modified Mirandas to permit officers to begin interrogation even when the
arrestee remained silent when asked if he would waive his rights. In Berghuis, Warden
v. Thompkins (2009), the Court concluded quite ironically that silence by
the arrestee could be construed by the police as an effective waiver of his
right to remain silent. Now, under
current jurisprudence, an arrestee is deemed to have waived his right to remain
silent unless he has affirmatively asserted it.
In 1984, the U.S. Supreme Court
recognized an "emergency" or "public safety" exception to Mirandas. In New
York v. Quarles , a young woman was raped at gunpoint in her New York City apartment. After he left, she sought help from two
uniformed officers. She described her
attacker and indicated that she saw him enter a local grocery store. She warned
Officer Kraft that he had a gun. Officer
Kraft entered the grocery and saw man she described. He grabbed him and cuffed him and noted that
he had no gun on his person. Office
Kraft asked him where the gun was, and Quarles indicated a nearby carton. Officer Kraft retrieved the gun from the
carton. Later, Quarles moved to suppress
his statement to Kraft about the location of the loaded gun arguing that he had
been subjected to custodial interrogation without first having been
Mirandized. The High Court carved out
the "public safety" exception to Mirandas and held that Officer Kraft could
temporary forego Mirandas to facilitate the neutralization of a danger to the
public safety (a loaded gun in an area accessible to the public). In doing so,
the Court
indicated that "The narrow exception to the Miranda rule recognized here will
to some degree lessen the desirable clarity of that rule. However, the
exception will not be difficult for police officers to apply because in each
case it will be circumscribed by the exigency which justifies it. Police
officers can and will distinguish almost instinctively between questions
necessary to secure their own safety or the safety of the public and questions
designed solely to elicit testimonial evidence from a suspect."
It is this exception on which
Attorney General Eric Holder relies in his assertion that he need not Mirandize
Boston Marathon bomber Dzhokhar Tsarnaev prior to questioning him. He relies,
in part, on a 2010 internal FBI memorandum
that provides guidance on the expanded use of the "public safety" exception to
Mirandas when interrogating those accused of terrorism. Indeed, it has been asserted
before with regard to other suspected terrorists without much fanfare. One can understand Mr. Holder's
position. Tsarnaev and his older brother
carried out an attack that resulted
in the deaths of three people and injured more than one hundred and seventy
others . There was increasing
evidence that more
attacks were being planned . Mr.
Holder is charged with protecting the citizens of this country, and wants to
know as much as he can about the attack.
How did the brothers obtain the information they used to build these
bombs? How were they able to obtain the
materials? In what quantity and from
what source did they obtain the explosives?
Were they acting alone or were there others involved? Were more attacks being planned? Are there co-conspirators or confederates
still on the loose? What support
(financial and otherwise) did the brothers have from dissident groups in
Chechnya? All of these are logical, even
urgent questions to which reasonable and competent law enforcement officials
want answers.
On the other hand, civil rights advocates
argue
that protection of civil liberties, especially in times of tragedy, should be
paramount. They argue that we
cannot sacrifice our constitutional principles for short-term goals, or we
have lost our republic. What government
does to the worst of us, the government will eventually do to the best of
us. They make a cogent argument that the
"public safety" exception recognized by the U.S. Supreme Court in 1984 was
envisioned as a very brief delay before informing the arrestee of his
rights. In New York v. Quarles,
the delay was the short time it took for the arrestee to indicate where he had
hidden the gun. Mr. Holder's plan is to
delay the recitation of Mirandas for days, weeks, or even months. That is a far cry from the Supreme Court's "temporary"
delay approved in Quarles.
But does it really matter? The failure to inform an arrestee of his
Miranda rights prior to custodial interrogation has only one consequence: the prosecution cannot use any ensuing
statements in the criminal trial of the defendant. The charges are not dismissed; the case does
not go away; the defendant is not released.
Only the unlawfully obtained statements are "suppressed" (inadmissible
in a criminal court). In the criminal
case against Dzhokhar, there is an abundance of evidence already in place to
convict him of the crimes with which he is charged. For his prosecutors, information obtained as
a result of Miranda-less interrogation may be helpful, but is not essential to
the prosecution. Such information,
however, may be extremely helpful in identifying confederates, in learning of
financial sources for terrorism, and in learning of weapons and materiel trafficking
that facilitates acts of terrorism. In
the end, the information interrogators obtain from Tsarnaev is more relevant to
intelligence-gathering and improvement in techniques to avert these terrorist
acts, than it is to the successful
prosecution of him.
The issue of whether the "public
safety" exception to Mirandas should be expanded to permit delaying Mirandas
for days, weeks or months (rather than minutes) is an important one, but it is
not one that the instant case will resolve.
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