Questioning Miranda: What do we expect of the Boston investigators?

I wrote a blog post yesterday about the constitutional issues surrounding the possible interrogation of accused Boston marathon bomber Dzhokhar Tsarnaev. Since then, more information has surfaced—along with much more speculation about the constitutional implications of a custodial interrogation. I’ve done some of thinking since yesterday, and I came up with some questions of my own.

Right now, our best information tells us that Dzhokhar Tsarnaev remains in serious but stable condition in a Boston hospital. This means that his vital signs may be unstable and not within the normal range—and that his prognosis is uncertain but death is not imminent. He is said to have leg and throat injuries and is intubated and sedated.

For interrogation purposes, this presents obvious problems. He can’t be questioned right now because he’s asleep and has a tube down his throat, but what happens when and if he gets better?

One commenter wondered whether he could be interrogated at some point even if he cannot speak. What constitutes “questioning”? Another wondered whether police are allowed to question him if he is not fully conscious—can he truly give consent to the interrogation? Can he knowingly and voluntarily waive any rights if he is groggy and vulnerable due to his injuries? Would investigators otherwise violate his rights if they approach him in that weakened condition? In other words, is “coercion” more likely when the suspect is more vulnerable than the average person? (I’m thinking here of interrogations of mentally disabled suspects, who do not necessarily understand what their rights are and which rights they are waiving—and who believe the police when they tell them: If you tell us what we want to know, you can go home.)

Your constitutional rights

Criminal defendants in the United States are afforded a powerful set of rights in the 4th, 5th, 6th, 7th, 8th, and 14th amendments. Among these are the right against self-incrimination (“pleading the 5th”) and the right to a lawyer:

No person shall… be compelled in any criminal case to be a witness against himself…. U.S. Const. amend. V

In all criminal prosecutions, the accused… shall have the Assistance of Counsel for his defence. U.S. Const. amend VI

Miranda, again

The Supreme Court has held that these rights are so important that the police must inform a suspect of them prior to custodial interrogation (questioning while under arrest). See Miranda v. Arizona, 384 U.S. 436 (1966) If the detainee asks for an attorney or if he says that he wants to remain silent, the interrogation must cease immediately. Id. at 445

Miranda, while powerful, is not absolute. This is the so-called “public safety exception” that has been discussed so much in this case. Police can ask questions of a suspect who is under arrest without Mirandizing IF the questions are necessary to protect public safety. See New York v. Quarles, 467 U.S. 649 (1984) (Quarles had just been arrested in a grocery store for a recently-committed rape and was thought to have hidden a gun somewhere in the store. Police said, “Where’s the gun?” before they read him his Miranda warning, and Quarles told them. The Supreme Court held that the gun could be admitted into evidence at the trial even though it was recovered as part of a custodial interrogation without Miranda. The gun in this case is the perfect example of “fruit of the poisoned tree.”)

Remember, though, that Miranda is triggered ONLY when a suspect is under arrest AND police are interrogating.

What is “custody”?

We usually think of “arrest” as being cuffed, put in the squad car, read your rights, taken downtown. That’s certainly an arrest, but one can be arrested without any of those things.

A person is under arrest whenever a reasonable person would form the belief that he is not “free to leave.” See U.S. v. Mendenhall, 446 U.S. 544 (1980) and California v. Beheler, 463 U.S. 1121, 1125 (1983).

Obviously, Tsarnaev easily meets the “custodial” prong of “custodial interrogation.” He was captured by police in a shoot-out and certainly is surrounded by armed officers now. No reasonable person would feel free to leave. Tsarnaev is under arrest.

What is “interrogation”?

We picture a spare, windowless and airless room at the stationhouse. A bare bulb swings from the ceiling, and there’s just room enough for a scarred metal table with the defendant on one side and the good cop, bad cop duo on the other.

In reality, though, interrogation can take any number of forms and can happen anywhere.

In the famous “Christian burial case,” a police officer who was transporting a murder suspect in a squad car mused that it was going to snow that night and that it was awful to think of the victim’s body out in the open somewhere without the benefit of a Christian burial. The suspect cracked and showed police the body. The Court held that this was an interrogation—particularly because police knew that the suspect had a lawyer and had agreed not to question him on the trip. Brewer v. Williams, 430 U.S. 387 (1977).

The ability to speak is not necessary. Interrogation must be “testimonial” but need not be verbal—a nod “yes” is enough. See Schmerber v. California, 384 U.S. 757 (1966). In other words, a handwriting sample, for example, is not testimonial and would not be interrogation with Miranda rights, but writing, typing, texting, nodding, eye-blinking, etc., a confession would be. It’s possible, then, for Tsarnaev to be questioned even if the breathing tube stays in place.

I’ll answer your questions

Of course, a suspect can waive his rights and agree to be answer incriminating questions without a lawyer present. He must, however, waive his rights both voluntarily AND knowingly and intelligently. Miranda at 444.

Frankly, the “voluntary” bar has been lowered significantly. In Colorado v. Connelly, the Court held that the waiver would be considered voluntary unless the suspect is able to show that his choice to speak was the result of some sort of coercion or police misconduct that defeated his free will. 479 U.S. 157 (1986) In Tsarnaev’s case, with this much public scrutiny, police will almost certainly stay well within the bounds of Connelly.

“Knowingly and intelligently” is more problematic. When we say “knowingly and intelligently,” we’re asking whether the suspect understands his rights and appreciates the consequences of what he’s giving up when he waives them.

Tsarnaev does not show any of the impairments that traditionally handicap a suspect’s ability to act “knowingly and intelligently.” He is not mentally ill or mentally disabled, and he has been in this country long enough to speak perfect English and to understand the basic mores of American life. That’s not the problem. Investigators would need to ensure that he is recovered enough and is no longer groggy from the sedation.

Incidentally, the questioning itself—even if Tsarnaev is gravely ill—would not appear to violate his 5th amendment rights. Absent some other civil rights violation, police can interrogate a suspect who lies injured in the hospital. See Chavez v. Martinez, 538 U.S. 760 (2003)

Clearing up misconceptions

I’ve read the following statements during the last 24 hours:

1) “Under the public safety exception to Miranda, police only have 48 hours to question Tsarnaev without reading him his rights.”

The Quarles case does not impose a time limit. Rather, the Court called this a narrow exception that could only be used to ask questions meant to uncover threats to public safety. This could take five seconds (“Where is the gun?”) or much longer. While failing to read a suspect his rights for any amount of time is risky, police are not bound by a deadline.

2) “Miranda has been gutted and no longer really applies.”

No it hasn’t and yes it does.

When people say this, they are usually talking about the Berghuis case, in which the Court held that a suspect who begins talking after a period of remaining silent has not invoked Miranda. Berghuis v. Thompkins, 560 U.S. _____ (2010) In other words, the suspect must either remain silent or affirmatively invoke his right to remain silent: “I don’t want to answer questions,” for example. To me, this is similar to the Edwards holding, in which the Court ruled that a suspect must affirmatively ask for a lawyer: Saying something such as, “Hmm… maybe I should get a lawyer” is not enough. Edwards v. Arizona, 451 U.S. 477 (1981)

3) “Tsarnaev has been appointed a federal public defender. He can probably afford a lawyer, but no lawyer would take his case. That’s why they had to appoint one.”

First of all, Tsarnaev has not been appointed a federal public defender yet. The federal public defender’s office said that it would agree to represent him (assuming they have jurisdiction to do so). Other possible attorneys: The state public defender, of course, as well as lawyers for any number of constitutional rights organizations.

Generally speaking, in the United States, a criminal defendant is appointed a public defender only if he cannot afford a lawyer. Plenty of lawyers—public and private—would take his case, because that’s what lawyers do. Some would do it for free for the challenge, the publicity, or for some other compelling reason.

4) “If they don’t read him his rights, he walks!”

If the police don’t inform Tsarnaev of his rights and he doesn’t properly waive his rights, any evidence that the police get from an interrogation cannot be used as evidence at trial—if the interrogation was conducted outside a Miranda exception such as the public safety exception.

That’s a big difference, although certainly a lack of key evidence could make a conviction harder to get. Still, I think there will be a wealth of evidence in this case, and it’s unlikely that a jury would fail to convict Tsarnaev.