The right to remain silent: Is Miranda in the way?

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 before you answer any questions. If you cannot afford an attorney, one will be provided. Do you understand?

—Typical Miranda warning

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

As of Saturday afternoon, 19-year-old Dzhokhar Tsarnaev lies in serious condition at a Boston hospital. (“Serious” apparently means that his vital signs may be unstable and are not within normal limits, and that he’s acutely ill with a questionable prognosis.) With that medical status and an ongoing investigation, things can change by the minute. It doesn’t make sense, therefore, to speculate on what his future may hold with regard to specific criminal charges, state vs. federal, etc.

I’ve sifted through a lot of commentary, however, about the constitutional questions raised by Tsarnaev’s arrest—such as whether he will be read his Miranda rights and whether he’s an enemy combatant. I hope to clear up some of the confusion as I outline the constitutional questions that face us.

What is Miranda?

To protect a criminal defendant’s 5th amendment right against self-incrimination and the 6th amendment right to an attorney, the police must inform a person of these rights prior to an interrogation when the person is under arrest. 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

You can see why investigators are wary of Miranda in this case. It’s not because it would discourage Tsarnaev from confessing. Arguably, they don’t need a confession from him: They’re likely collecting plenty of incriminating evidence to convict him without one. A key question in this investigation, however, is whether the Tsarnaev brothers acted alone or whether they’re part of a “cell.” Also, did they leave undetonated bombs behind? If they start to question Tsarnaev and he asks for an attorney and/or says he doesn’t want to incriminate himself, the questioning stops and these questions go unanswered.

While most reasonable people understand why it’s important to protect a criminal defendant’s constitutional rights, we’re also naturally concerned about the rights of potential future victims of the Tsarnaev brothers and their accomplices, if any. We’ve got to get this lifesaving information, but we can’t jeopardize a future conviction.

Miranda who?

In 1963, Ernesto Miranda was arrested by the Phoenix police for the kidnapping and rape of a 17-year-old girl. Police interrogated Miranda, who then signed a written confession. Police did not specifically warn Miranda that he had a right to talk to a lawyer, and he was not told that he had the right to remain silent or that his statements could be used against him. The U.S. Supreme Court set aside the conviction, and Miranda got a new trial where he was convicted without the confession. In 1976, after his eventual release, he was stabbed to death in a bar fight in Kingman, Arizona. According to newspaper reports, his assailant fled prosecution—lending credence to the “what goes around comes around” theory. Miranda died with several printed Miranda warning cards in his pocket.

When is Miranda triggered?

Our perception of an arrest is largely shaped by movies and TV. We see the seasoned police detective lead the perp to the squad car: “You’re gonna have to come with me now, son. I’m sure I don’t need to tell you why.” The earnest rookie patrolman then reads the perp his Miranda rights while he’s pushed down into the back seat.

This gives us the false impression that police are required to read a suspect his Miranda rights when they are arresting him. Further, we assume that we’re not under arrest until we hear those words.

In reality, Miranda protects the suspect against self-incrimination in custodial interrogations. Miranda is triggered only when the suspect is both: 1) Under arrest AND 2) being questioned by police. While police officers generally do read the suspect his rights when they’re arresting him, it’s only as a matter of policy to make sure this base is covered—and to ensure that incriminating info can be used in case the suspect gets chatty in the patrol car on the way downtown. In fact, some departments re-read the Miranda rights when any formal questioning begins at the stationhouse and have the suspect sign a written Miranda waiver.

How do I know if I’m under arrest?

You wouldn’t think this would be a gray area—It’s when I’m handcuffed in the back of the squad car, right? It’s unclear in a surprising number of cases, though.

A person is in police custody when a reasonable person would not feel that he is “free to leave.” U.S. v. Mendenhall, 446 U.S. 544 (1980) A reasonable person wouldn’t feel “free to leave” if they are sitting on a curb surrounded by police with guns drawn, for example—or if they’ve been escorted to an office at an airport by DEA agents, as Mendenhall was.

I mention this here because Tsarnaev falls into one of those gray areas. He was transported to the hospital (not jail) in an ambulance (not a squad car). He doesn’t feel free to leave primarily because he’s gravely injured. Still, he’s in police custody because he is surrounded by police—after two firefights with them—and wouldn’t be allowed to move even if he could. A reasonable person would not feel free to leave under these circumstances.

If the police question him, it’s a custodial interrogation and therefore falls under Miranda.

The public safety exception to Miranda

A Department of Justice official who did not want to be named told an NPR reporter that investigators did not plan to read Tsarnaev his Miranda rights now. Instead, they are invoking the “public safety exception.” Police can ask questions of a suspect who is under arrest without Mirandizing IF the questions are necessary to protect public safety. New York v. Quarles, 467 U.S. 649 (1984)

The FBI has used the public safety exception with more than one terror suspect—notably, with would-be 9/11 hijacker Zacarias Mossaoui and with thwarted Times Square bomber Faisal Shahzad. In both of these cases, the FBI appears to have asked questions pertinent to public safety and then read the Miranda warnings before continuing the interrogation. It’s a fine line.

Enemy combatant

Senators Lindsey Graham, John McCain and others are calling for the Obama administration to treat Tsarnaev as an enemy combatant under the Military Commissions Act of 2006 (10 U.S.C.A. 948(a) (2006)), in which case he would be interrogated without Constitutional protections such as Miranda—and could be detained indefinitely at Guantanamo and tried in a military tribunal with no constitutional protections.

Congress passed the Military Commissions Act in 2006 after the Supreme Court held that the Guantanamo military tribunals held by the Bush administration violated both the Geneva Convention and the Uniform Code of Military Justice. Hamdan v. Rumsfeld, 548 U.S. 557 (2006) A key portion of the new, improved Military Commissions Act—in which enemy combatants were prohibited from filing habeas petitions so that their cases could be reviewed by federal courts—was held to be unconstitutional. Boumedine v. Bush, 553 U.S. 723 (2008)

In short, the Guantanamo route is a rocky road—even when the U.S. is trying to prosecute those who fall squarely within the definition of enemy combatants.

Several news articles have suggested that, under the Act, Tsarnaev cannot be defined as an enemy combatant because he is a U.S. citizen. This is not strictly true, as the Act does not limit the designation of enemy combatant to non-U.S. citizens. Still, because Tsarnaev is a U.S. citizen, he is afforded the same constitutional rights as any other U.S. citizen. To treat him as an enemy combatant under the Act would be a clear constitutional violation.

What happens next?

Because the situation is ever-changing, it will be interesting to see how the government’s case evolves. The State of Massachusetts (where there is no death penalty) and the federal government (where there is) are still preparing charges and collecting evidence. Also, given his condition, Tsarnaev may not live long enough for any of this to matter.

Note that even if police don’t read Tsarnaev his Miranda rights, he can still invoke them. Suspects (wisely) do it all the time. If you’re arrested, the first and only words out of your mouth should be “I want a lawyer!” As an American, Tsarnaev has possibly watched enough TV to know that.