Miranda Warnings & The Boston Bomber

The feds have decided NOT to read Miranda warnings to Boston bombing suspect Dzhokhar Tsarnaev.  Why?  On what basis?  Does this jeopardize the case against him?  Will he go free one day because of this decision?  What are Miranda warnings and why are they needed?

The bombings and all the events of Friday were a tragedy.  As an American, I hope they bury this kid under the jail.  But as an attorney, I can’t help but see all sorts of interesting legal issues popping up here.  And the resolution of these legal issues will affect future terrorist investigations.

At some point Dzhokhar Tsarnaev will be formally charged and will get an attorney.  You better believe  his attorney will argue that his client’s rights were violated because of a failure to read Miranda warnings.  (You may recoil at this thought, but this is how our system works and I can guarantee you it will happen.)

His attorney will argue for suppression of certain evidence obtained after Miranda warnings should have been given.  This will take away some of the government’s evidence against him.  In particular, if he makes a confession, it may not be admissible in court without Miranda warnings.

What will that do the case against Dzhokhar Tsarnaev?  Will he end up going free one day because of this decision? 

The feds are using a 1984 Supreme Court case and a 2010 Justice Department memorandum as the basis of their actions.  That is one old case and one untested memo.  If you think this is thin, you are probably right.  In fact, I believe the case against Dzhokhar Tsarnaev is not really about him at all – it is the test case for this 2010 memo.  It will firmly establish when the FBI can refuse to read Miranda warnings, and for how long.

A memo is just an opinion of the Justice Department.  It has no real weight when things get to Court.  Ultimately, the Judicial Branch will decide the issues in this matter.  They will do so based on existing law, and other former case law, like the 1984 opinion allowing this emergency exception.

The exception mentioned in the 1984 Supreme Court case is for an immediate emergency.  Is there an immediate emergency for Tsarnaev?  Who knows?  Sure, he could know of other bomb plots.  Or, it could have been just him and his brother.  He is in custody and going nowhere.

This isn’t the “emergency” envisioned by the Court in 1984, but the question is: how far does an “emergency” extend, and under what circumstances?  This case is a good one to set those limits which are currently undefined.

What are Miranda rights anyway and why are they important?  Miranda warnings are nowhere in the constitution.  They are a judicially created rule for any time police arrest someone.  The suspect must be read his rights, like the right to remain silent and have an attorney.  Miranda didn’t create those rights.  Those rights already exist, and Tsarnaev has them no matter what.

The Miranda case just said the suspect has to be reminded of those rights.  By not reading Tsarnaev his rights, we are just failing to remind him he has rights – not establishing any rights he doesn’t already have.

If a suspect is not read his Miranda rights, then any evidence you get from questioning the suspect – in violation of his right to be silent and right to an attorney – cannot be used in court.  It is “suppressed” by the court.

This does not mean the suspect goes free, or that all the evidence against him is suppressed.  Any evidence that exists prior to failure to read Miranda warnings is still good evidence and can be used in Court.  Miranda cases deal with suppressing the evidence gained AFTER an interrogation.

This is why the question of Miranda warnings in the Dzhokhar Tsarnaev case is probably just an academic argument.  It appears police have video of him dropping the bomb before it exploded.  And they have the other bombs at his house, and in the car he was driving Thursday night.  They can pin him to the murder of that police officer, and they have him in a deadly shootout with police.  Frankly, they have a ton of incriminating evidence against Tsarnaev right now if he never speaks again.

However, this legal issue is likely to be a critical importance in a future case.  What is going to happen when the next terrorist gets arrested?  How far can the police go in asking him questions without a lawyer to stop an imminent attack?  How long can they hold him?  How far does that right extend and under what circumstances?

All of these questions are going to be answered in the years long litigation coming over Dzhokhar Tsarnaev’s Miranda rights.  His case will establish boundaries for the next case, while he likely rots in jail through the whole thing.  The litigation will be about him, but it isn’t likely to help him at all.

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