Transcript of Boston Bombing suspect's bedside hearing (yes, he was Mirandized)

Dzhokhar Tsarnaev, 19, has been charged in a criminal complaint over the bombing of the Boston Marathon. He appeared before a federal magistrate who came to his bedside at Beth Israel Deaconess Medical Center. He nodded affirmatively in response to questions, but spoke only one word: "no," after the magistrate asked him if he could afford a lawyer. The New York Times has the transcript. After much controversy, it's good to see that he was read his Miranda Rights. [] And here's the FBI affidavit. []


  1. Huh.  If a pressure cooker is a WMD, then the claim that Iraq had WMDs is finally vindicated.

    1. Shit. Now I have a record on Amazon for shopping for WMDs. 

      Double shit. Now you can buy WMDs on Amazon. I’m reminded of the old Far Side cartoon. “Well great. Now the Hendersons have the Bomb.”

      1. Shit, I cooked black beans in my WMD today!  But the bomb won’t be going off until I eat them!

      2.  I sold a vintage WMD to a young couple just a day before Boston (here on the left coast). They’re really in demand for cooks in the know. And I even told them I never used one because I’ve always been afraid of them exploding under all that pressure. I wonder what they thought…

      3. I’m on the list with you, too. My husband bought me a pressure cooker for Christmas. I’m glad we brought it back to Finland when we did. I don’t think they’d let us check it in with our luggage now.

  2. When I got to the part of the transcript where he was Mirandized, I was moved and proud.

    Despite all our flaws, we remain a society that guarantees the protections of due process even to those who attack us from within. 

    This means something, and separates us from  – well, from people like Senator Lindsey Graham. I wouldn’t mind seeing the thumbscrews put to that one.

    1. I wonder, if not for this individual, then to whom Miranda rights should apply?  I suspect the answer from Graham, The Nuge et al is: no one, i.e. if they are reading you your rights, then you don’t deserve ’em, and it’s just to appease namby-pamby ACLU pussies. My $0.02.

  3. Building and intentionally placing IED’s with the intent to kill or injure as many people as possible in a crowd setting and do as much damage as possible isn’t use of a “weapon of mass destruction”? Do we need to define a WMD with how many people it could potentially kill?

    1. That would be the ‘M’ bit, of the term ‘WMD’.

      I’ll give you weapon, and destruction (including but not limited to death) is also a given.

      But mass? I understand that is how you – as a country – have chosen to define it criminally, but I chose to find that definition assinine.

      I hope you realise that according to this definition practically every soldier, most pilots, and quite a few sailors in the US military /regularly/ uses WMDs.

      1. Every soldier, pilot, and sailor does not regularly plant bombs meant to indiscriminately murder as many people as possible. That simply isn’t true at all.

        The bombers didn’t care who they killed. They wanted to cause as much death and destruction as possible with their handmade bombs. I’m not sure how the intended death of a huge crowd of people isn’t “mass destruction”, or why considering it such is “asinine”. But you’ve chosen to see it that way, so I guess that’s your decision?

          There is nothing in the law about ‘regularity’. Once is enough, and I suspect there are quite a few indiscriminantly targetted wedding participants, for example, who’d quibble with you about “not true at all.”

          The get-out clause for the military is “without lawful authority,” since generally they will have legal authority, as embodied in their ROEs. But there’ve been plenty of cases when military folk have stepped outside their ROE, and would be subject to this law. 

          Yes, seeing WMD defined this way as assine is my decision. I’m hardly alone in that.

          1. It seems to me that the definition of the word “mass” is exactly what we’re talking about, yes. In my view, using a weapon to try to kill as many people in a crowd, indiscriminately, as possible is a pretty good definition of attempted mass destruction — even if we’re just talking about homemade pressure cooker bombs.

            I’m not sure why that opinion earns me a bunch of snark.

          1. Which, at best, kill one person.

            A land mine is not a bomb meant to murder a massive crowd.

          2. (to otterhead, not Ernest. Stoopid diaqust)
            No. Mines can kill loads of people.

            (BTW, and FWIW, I don’t think mines should be classed as WMDs either. The explosives-based definition embedded in 18 USC § 2332a is all asinine, not just the bit  being specifically related to Tsarnaev.)

      2. I believe that in addition to the UCMJ, the US military is also subject to all domestic law at all times, and in all places. Which kind of puts all those soldiers, sailors, and airmen in an awkward legal position, no?

        Well, obviously they aren’t charged for murder when they shoot people, so I’m not sure that being subject to US law puts them in a tough spot.

        But that aside, I think a good case could be made that the notion of “mass” destruction is reasonably different when applied to criminal acts vs. acts of war.  When the expectation is that we are not supposed to hurt one another, killing three and taking out some legs seems like a lot.  When the expectation is that we are trying to kill each other to begin with, the same bomb doesn’t seem quite as big.

        And finally, that we have managed to convince ourselves that incinerating other human beings by the dozen is okay is incredible.  I think the criminal definition of mass destruction makes a hell of a lot more sense than a definition that says, “Oh you only annihilated 17 lives in one go?  That’s hardly a lot.”

    2. the image of the fellow being pushed in the wheelchair, with no legs left below the calves, shattered bones exposed, flesh hanging, shock/horror-stricken eyes, head back in a psychotic disbelief of the reality where his feet just were, his helpers running…
      times the others maimed, times the three dead, times the three in critical condition, times the 50+ in hospital yet, a week later, times the psychological overhaul of a city/media-nation, times the mistrust expressed during the week of the search, in terms of flase falgs and poor ‘journailsm’, times the desnsitization
      equals destruction, and more, mass scale and localized.
      the term is too loose.

      1.  Somebody just sent me a link to some lunatic’s blog asserting that the whole of that was fake, and he was fitted with ‘prosthetic’ missing legs…
        I fucking despair, really I do.

        1.  Those people are really a tiny minority. Before those cretins had access to computers and the internet they would have been mumbling to themselves and scaring away their neighbors. However, con-artists like Glen Beck, Rush Limbaugh, et al know how to manipulate the media and keep the attention constantly aimed at themselves. Their importance and the number of their followers is highly exagerated. They’re cranks. Ignore them.

    3. They could have killed far more people with two AK-47s than they did with two homemade black powder bombs.

      1. I disagree. The finish line was mobbed with the Boston Police. A pair of loonies brandishing AK-47s would barely get a shot off.  But a half-dozen homemade bombs had the potential to do an incredible amount of damage if these jokers hadn’t been so sloppy. Thankfully, they were.

    4.  Well, in terms of international treaties, etc., “WMD” is a term of art that replaced the earlier acronym NBC (nuclear, biological, chemical). Sad to say, but there’s nothing unconventional about the bombs used by the Tsarnaev brothers, and apart from the cell phone triggers, they used pretty much the same technology as the Anarchists used almost weekly in the United States a century ago. This isn’t “the new normal,” it’s the “old normal” of the Gilded Age.

      (Seriously, terrorist bombings were a regular occurrence in industrialized cities from around 1890 – 1920. Black powder and shrapnel, light the fuse, toss it into a crowd, keep on walking. And the cops were pretty useless — when they did make an arrest, they usually got the wrong guys — e.g., Haymarket. Everyone always forgets that piece of history.)

      1.  And the crowning achievement of the anarchist bombers of the time (aside from assassinating a president) was the assassination of ArchDuke Ferdinand.  Then some other stuff happened over the next 30 years, which I suspect was not precisely what they were hoping for (though in some places it was exactly what they wanted, Yugoslavia particularly).

        1. Sorry for the snark of others, but I’m with those who descry the broadening of WMD to include these small and poorly designed bombs. Yes of course they did great
          damage, but they’re just not WMD sensu strictu. Using WMD
          sensu lato, as here, inflates the situation
          needlessly, however serious it might be to those directly affected. Since words have meaning, it would be best to keep the meaning as precise as possible.

          1. I agree that a more precise definition is a good thing in this case.

            Yes, it’s true. Words Have Meaning. Thanks!

          2. If the argument is that US criminal law should be amended to avoid using an internationally recognized term because that might lead to confusion then I guess I can get behind that.

            The idea that there is something wrong with the definition being used here and something right about the one that says a bomb that can kill hundreds of people in a split second is *not* a weapon of mass destruction seems silly to me.

    5. The term “weapons of mass destruction” didn’t used to just mean bombs. It meant the seriously scary stuff — nukes, chemical weapons, germ warfare. That was the pretext for invading Iraq, remember? Saddam Hussein supposedly had chemical and biological weapons, not just improvised bombs. 

      1. Yes, I remember. So, again, that’s my question: should we only call things “WMD’s” that could potentially kill thousands? Tens of thousands? Millions? Or can bombs placed in a way that could kill many hundreds be WMD’s as well? It’s a sloppy definition right now, but I can see how it can apply to improvised bombs in this sort of context.

        1. should we only call things “WMD’s” that could potentially kill thousands? Tens of thousands? Millions?

          Yes. We already have this word “bomb”, which implies killing more than one person at a time. WMDs not only kill more people, they kill people who are not in the immediate vicinity, as in infection, radiation, contaminated food/ water/ air.

          1. Well, since you’ve declared it so, I’ll move along, then, and pass on trying to actually debate or bring up ideas.

          2. Weapon: An instrument used or designed to be used to injure or kill someone.

            Weapon of Mass Destruction. (usu. pl.) A weapon that is intended to kill human beings, without discrimi­nating between combatants and noncombatants, on a massive scale. – Among the most frequently cited examples are nuclear weapons and chemical weapons. – Abbr. WMD. 

            From Black’s Legal Dictionary. It seems in legal terms the deciding factor is that WMDs are indiscriminate rather than aimed. 

  4. Has he been conscious and alert the whole time that he’s been hospitalized?  If not, then it would have been senseless to read him his Miranda rights before now.

  5. Thank goodness this is who we are.  A few strident voices were demanding all sorts of lynching, but they don’t have to win.

    1. It’s not lynching idiot. It is called assessing immediate danger. We know now that they planned to head to NYC to bomb Times Square. Who is to say that there were not others involved? We did not know and really don’t know yet. It is easy for you to sit there in your safe, comfy cocoon and evangelize about due process and Miranda. When this enemy threat and infrastructure grows more and more within our borders and the horrors to terrorism become more frequent–where will you be? What if terrorism imacts you, a family member, or a friend? You’ll be crying in your coffee and eating your due process like bagel. Wise the hell up. We are at war.

      1. It is easy for you to sit there in your safe, comfy cocoon and evangelize about due process and Miranda.

        Ah, yes. There’s no better time to ditch your principles than when a problem arises. It makes you wonder why we should bother having any laws at all.

        1. Do you have any idea how naive you sound? No one said anything about ditching principles or the rule of law. In this case the FBI had 48 hours to interrogate as we were in clear and present danger. The DOJ was out of line stepping in when they did, usurping procedure in favor of the administration’s ideological views. That is borderline treasonous. There is a fine line between individual rights and the greater good to society. In this case and in future terror cases that are likely to occur we have to protect the common good. Are we impinging an individual’s rights? Yes. But when that individual has detonated bombs, shot and killed a police officer, and we don’t know who else might be carrying out the rest of their planned terror spree—well, I will gladly deny that right to protect innocent lives. I wonder if you would be so glib if your eight year old son was killed, your daughter severely wounded, and your wife left with brain injuries at the hands of the individual you would so adamantly protect. The FBI was acting within the law. It is a shame that the DOJ, Holder, and Obama don’t believe getting critical information is vital to this invetigation. It only shows their poor judgment and lack of leadership–yet again.

          1. Are we impinging an individual’s rights? Yes. But when that individual has detonated bombs, shot and killed a police officer, and we don’t know who else might be carrying out the rest of their planned terror spree—well, I will gladly deny that right to protect innocent lives.

            In other words, you don’t believe in the rule of law.


          2. Antinous: There is no reply button to respond to your last response so I am backing up to this one. You’re right—NEXT. You obviously don’t have the intellectual capacity to grasp or comprehend what I said. It is closed-minded dopes like you that will fuel our downward spiral. Don’t bother responding. i am off this thread. I couldn’t be bothered trying to have an intellectual discussion with a mental midget. Life is too short to waste time on the purely hopeless. Off to the gulfstream to enjoy a weekend of great fishing. I will say a prayer for your enlightenment. Have a fun weekend. :) By the way, your name says it all—Antinous. A loose Franglais interpretation would be “against us”. Clearly, by virtue of your alleged “thoughts” you are indeed against us. LOL @ you.

  6. When we talk to the rest of the world, WMD = “really scary stuff” like NBCs etc…the better to justify a preemptive strike, to protect our national interests. But when it comes to federal prosecution, WMD = basically anything we wouldn’t let a security guard carry…the better to justify the death penalty, to assuage our indignation at being targeted collectively (or at least the threat of death, to make the prosecutor’s job easier.)

    Note how much space the charging affidavit devotes to establishing the tenuous connections to interstate commerce so federal jurisdiction (and therefore the death penalty) can apply. If this had happened at a local beauty pageant, they could have said the tiaras were made in China. If the pressure cookers had been forged in the brothers’ garage, they might have noted that Cuisinart’s profits in neighboring Connecticut were being affected.

    So semantics aside, even if we dispensed with the term WMD and just said “bombs,” the root question is whether we want to make such offenses—where even if only one person dies, the psychological injury to the rest of us is great—punishable by death. And judging by the chants of “USA! USA!” (when the suspect himself is American and our nation is “not at war with Islam”) the answer appears to be a resounding yes.

    1. I’d hardly call the connection to interstate commerce ‘tenuous’. Were any of the victims from out of state? Did their injury affect their income or business? That’s an effect on interstate commerce. Not to mention AMTRAK services up and down the Northeast Corridor were shut down.  The death penalty debate is a separate debate.

  7. Hi everybody, I really like the discussion on this one, so I thought I would insert my two cents.

    First, I would say that I don’t work in a federal criminal law environment, but rather in a state criminal law environment. That being said, my state approaches this issue (the use of bombs and so forth) as referring to them as “destructive devices”. In my state, as one would expect, the use/possession (in some circumstances) of a destructive device is an extremely serious offense.
    I took a look at the federal statute and the statute does something which is fairly common for statutes, and in the legal profession generally, and offers definitions of the included terms. Basically the statute refers back to the definition of “destructive device” in section 921
    ” The term “destructive device” means—
    (A) any explosive, incendiary, or poison gas—
    (i) bomb

    plus a bunch of others. The statute also adds some additional definitions, such as the Nuclear/Biological/Chemical stuff.

    In a nutshell, I don’t really see anything weird here at all. The federal code (and indeed, all state laws) regularly use legal terms of art, which are not identical to the definition provided by common usage. I can assure you that the three deputy public defenders(!) assigned to represent the defendant would make an extremely simply argument that the elements of the crime had not been satisfied if they thought they could do so by suggesting that a bomb was not a weapon of “mass destruction”. In my opinion this would be an extremely weak defense, since the statute itself says that a bomb will satisfy the requirement. I totally and completely understand that using language in this way can be extremely annoying to folks that are used to relying on the OED for their definitions of words, but it is simply now how the law works in any common law jurisdiction.

    Secondly, and more interestingly (to me anyways), I wanted to talk about Miranda generally. 
    In my experience, practically everyone that is subjected to custodial interrogation (the point at which Miranda warnings are required) are in fact given their Miranda warnings in a timely fashion. Further, a huge majority of defendants, after receiving the warning, waive those rights, and talk freely with the police anyways (often resulting in a huge increase in their potential criminal liability). I have some ideas of why this is the case, but this post is already going to run way too long.

    Thirdly, this transcript is not of an interrogation, but of a weird, quasi-arraignment/hearing, conducted by a federal magistrate judge at the bedside of the defendant (which I have literally never heard of happening, it must of been a pretty interesting scene with a federal magistrate judge, a Federal Public Defender, a court clerk, and a court reporter all jammed into a hospital room).

    Fourth, a Miranda warning given by the judge at this hearing was *completely pointless* in this situation. The defendant has been charged with a crime. Under the 6th Amendment of the US Constitution, once a charge has been issued, a defendant’s right to counsel attaches, and they can no longer be questioned outside of the presence of their attorney. Generally Miranda is meant to protect from over zealous police questioning outside of the presence of a defendant’s attorney. The federal public defender almost certainly told his client to not say anything to anyone, period.

    Fifth, the defendant *was* questioned by the FBI on Sunday outside of the presence of counsel under the public safety exception (and having just had to deal with some of this stuff a few weeks ago, when I had to catch up on all the cases, I believe is a bit dubious). This means the defendant was questioned without the benefit of a Miranda warning. Ostensibly, from reading the NY Times article (
    it seems that these statements led to the charges filed against the defendant on Monday

    Sixth, I think there was probably way more than enough physical evidence present, even without admissions by the Defendant for the Assistant US Attorney to file charges against the defendant. This is speculation based on the news accounts, but I am guessing the admissions were just gravy for the prosecution.

    Sorry for the long post, and sorry to be a buzzkill about the fact that the defendant was interrogated without a Miranda warning.

    1. The federally supported prosecution case will be:  Spill all the beans or we’ll put you to death.

      1. It is not a federally supported prosecution, it is an actual prosecution by the federal government (although there may be state charges as well). Also, I suppose it is possible that the prosecution could offer a life sentence in exchange for a guilty plea and a detailed description of the events; although I suspect there will be some amount of pressure to seek the death penalty.

        Finally, I just noticed that Ken at Popehat (a former assistant us attorney) has a rundown of how this stuff works, which I think will be quite informative for folks.

  8. The label “Weapons of Mass Destruction” is very problematic because: 1) the Bush administration used it for political reasons and got busted with it, 2) when I think “WMD”, I think “Hiroshima Bomb”, not “Pressure Cooker”. Subsequently, the accusation gets a taste of exaggeration and political trial which, I think, is a very bad idea. In the following steps, we will have to watch a tragically perverted 19 year old criminal defending himself against an accusation which was last termed to fit the size of a whole country and its criminal leader and to justify a war that has not ended yet. I think the use of clear, simple terms like “explosive device” would be much more helpful and appropriate.

    1.  As discussed in my post above, and in the Popehat post I linked to, it is a legal term of art, and so you have to sort of ignore the popular usage, and read the definition assigned to the term from the statute.

      1. Why would we want to do something that supports the state manipulating the intent of law to hold a political vengeance trial? Have you ever heard the expression fiddling while Rome burns?

        1. Hello, and thanks for sharing your thoughts.
          Political vengeance trial? Manipulating the intent of the law?

          You lost me on both of these. The American legal system is an adversarial one. Each element of a criminal charge must be proven by the prosecution “beyond a reasonable doubt”. This is satisfied when the fact finder (generally the jury) is left with an “abiding conviction” that the facts asserted are true. The defense will have ample opportunity to shoot down the facts alleged by the prosecution, and it is ultimately up to the jury to decide what they believe. Not the judge and not the prosecution. I am not suggesting that the system is perfect, but I have a lot of faith generally in the ability of jurors to determine when they are being manipulated by the prosecution and to respond accordingly.

          As for your somewhat bizarre assertion that the intent of the law is being manipulated; I would direct you to the text of the statute which clearly defines “bombs” as falling under the statutes purview. I would be delighted for the chance to read your explanation of how following the statute to the letter is a manipulation of the intent of the law (by which I assume you mean the intent of the federal legislature which passed the law) as perhaps I am misunderstanding the statute itself, or your comment.

          1. Nearly tl;dr but your earnest self-expression gave me patience.

            Without directly approaching your responses, can I ask what you’d say if I asked you this:  imagining that the judicial system could be manipulated, explicitly, implicitly, subtly or obviously – in what ways could such manipulation occur?  What might be the motives?  What would be the outcomes?  Take a wide purview, over the media, the enforcement of the law, the prosecution of the individual, and so on.

            Forget the current situation.  Perhaps distinguish between a minor crime and a major crime that receives national coverage. 

            You seem to have detailed knowledge of the legal system.

            I’m asking you to turn 180 to see what you see.  Are there any holes in the totality of your view?  Any lacunas?  Any suspicions or misgivings?

            Anything.  What do you see?

          2.  Hi, thanks for your message. I’ve seen this TL;DR thing before, but I have no idea what it means. Sorry!

            Interesting and fun and extremely huge question though! I started writing my general thoughts, and realized as I was getting warmed up, that I had written about 3000 words. This made me think this maybe isn’t the best forum for this conversation, which is a shame, because (to me anyways) your question hits on some extremely important concepts which speak to what sort of society we have decided to make for ourselves.
            So, as a sort of compromise, I just want to touch really generally and objectively on how the media effects the trial system.

            Generally (ideally at least) at practically every trial, the media should have very little to do with the outcome of a case. The judge is required to follow the law (and is subject to having its rulings overturned by the two levels of appeal courts above the trial court level) and generally steps are taken by the court to ensure that the jurors are sheilded from the media during the time of the trial (which can include sequestering the jurors in a hotel without tv/internet/newspapers etc).

            This is obviously more difficult in the case of infamous crimes that have had huge media coverage, however the court still has tools at its disposal, such as a change of venue (as with the Timothy McVeigh trial for instance, which was moved from Oklahoma to Colorado) or other steps being taken by the court.

            Further, during jury selection, both the prosecution and defense is allowed to question the jurors as to their exposure to the case, general views, relationship to law enforcement, etc. The goal of which is to ensure that the jury is neutral.

            It is also worth noting that the prosecution will go over each and every fact they think is important in bringing about a conviction; in many cases, the prosecution will be more well armed with facts and materials than the media will, since they can benefit directly from the materials produced during law enforcement investigation which are often unavailable to the media.
            In effect, the prosecution can usually provide much more information to the jury than the media could anyways.

            While there are some other issues here which are worth talking about (for instance, jurors have been known to ignore the admonition against speaking with others about the case, or against reading the news, etc),  my feeling is that if things run the way they are supposed to, the media should have no effect on the returning of a guilty plea.

            I will also say in closing that in high profile cases such as these, it is extremely likely that every party (the defense, the court, and the prosecution) will go to extreme lengths to ensure that everything is done technically perfectly.

            Sorry again for the incomplete answer, it is just basically impossible for me (probably because I am a terrible writer) to boil down what I see as bigger concerns regarding the system to an appropriate length for this forum.

          3. Your posts have been very informative, thank you for them. And as far as ad hominem attacks, I have witnessed Antinous posting those on more than one occasion, which I think is a little strange for a message board moderator to do.

          4. I’m waiting for Antinous et al to demand that everyone that is oriented vertically their feet within the vicinity of a ‘NO STANDING’ sign be issued a summons. Afterall that is what standing means, right? Or perhaps it is the opposite, you can place your car in a no standing zone so long as you remain seated. 

            In all seriousness though why not charge him with 2332f? Sentencing guidelines perhaps?

          5.  I have no insight into why prosecutors chose the charges they did. Ken at Popehat might have a better sense of the tactical decisions that went into these charges.  I can say I was surprised at how light the charges look at the moment, considering what I have read in the Times.

    2. That is not the last time this term was used in a court of law, in fact since 9/11/2001 nearly 50 individuals have faced the same charge.

  9. My question on this: Does he still have these rights if he is not informed of them? Let’s say I’m arrested for something and I am not “informed” that I can refuse to speak to the authorities etc. 

    Can’t I still refuse to answer questions? 

    1. Yes, you automatically get the protections of the Miranda rights from the time you are taken into custody. The only question is at what point were they going to explicitly inform him of them. As soon as he woke up he could have not said anything and asked for a lawyer regardless of whether he had been “Mirandized” or not.

    2. The rights are constitutional, and are an important protection in most sophisticated legal systems against abusive process.

      In the USA, the 5th and 6th amendments to the Constitution are relevant:
      The 5th – the right against compelled self-incrimination
      The 6th – the right to counsel

      Basically, everyone covered by the Constitution has the right not to be forced to dump themselves into the shit, and has the right to appropriate legal representation (to ensure, in essence, that due process is correctly followed).

      The Constitution is always applicable, its protections are in action at all times, whether the individual is aware of them or not.  Miranda vs Arizona served to inform the executive and judicial branches of the state that every person taken into criminal legal process must be informed of those rights, to ensure that they have the capability to enjoy fully the protections of the Constitution.  Guilty or not.

    3. I felt a little confused by this as well.  There was so much talk about whether or not he had to be informed of his rights, but not the fact that he had the rights whether he was informed of them or not.  The notion that someone has rights but that it’s okay to try to hoodwink them out of their rights by hoping that they are ill-informed is really troubling.

      1.  It’s a phenomenon I’m trying to pin a name on, and my ignorance hinders my discovery.

        Where an important and useful thing (5th and 6th amendment rights) is seen through the frame of another important and useful thing (Miranda), but that latter thing both crystalises the importance of the former, and dilutes the knowledge of the content of the former, to the extent that everyone gets confused, even potentially utterly forgetting the original important thing and the pathways to get to it.

        So now everyone says “Miranda rights”, which is neat shorthand, but not everyone, and probably hardly anyone, knows what it means.  Everyone thinks it’s the ‘right to remain silent’, which again is a neat aphorism (?), but actually represents an important and fundamental concept – the right not to incriminate yourself, which is what you’re actually doing, when staying silent is the how you’re doing it – it differs.  It also means the right to legal representation.

        Actually mind you in the USA so many people have been processed by the cops maybe I’m talking through my hat when I say no-one knows it.

        So the term “Miranda rights” fractures the relationship with the original texts, it intersects or intervenes, albeit with the very best of intentions, and people look to Miranda rather than the Constitution.  Because of that layer, it’s also open to abuse, adaptation and misconception.

        What am I saying?

        Has anyone read this far?

        And does anyone know a term for this kind of thing?  It’s bugging me.

  10. Hey all,
    so yes, a quick word about “Miranda Rights” (I put it in quotations, because the Court often does when it is talking about these rights).
    Miranda rights are not directly enshrined in the Constitution, rather it is how the Supreme Court has interpreted a person’s 5th Amendment right against self incrimination is best protected (a bit of a weird distinction, I know, and really even when something is directly protected in the Constitution, the Court makes specific laws on how that protection should be interpreted. Again, a bit of a long conversation).
    Even though the defendant in this case was not directly read his Miranda warning, his right to remain silent was still protected by the United States Constitution. This is always true in the normal criminal system (it may not be true where people are being charged in the military system, as enemy combatants and so forth. I have exactly zero direct experience with this stuff, and only vaguely remember how that stuff works from one time when I got annoyed with the news reports about enemy combatants and decided to try and figure it all out… but I digress).
    To sum up, a person always has the right to remain silent, and avoid self-incrimination in the United States criminal system. The defendant in this case (or “suspect” when the questioning actually occurred) could have unequivocally invoked his Miranda rights, after which questioning would have had to cease immediately. There is no mechanism in the normal American criminal for forcing a suspect to speak if he does not want to (the court does have some contempt powers, but that is a different issue).

    So, what happened then you may ask, and what is all the hubbub about the Miranda warning in this case?

    In effect, the Supreme Court has carved out some exceptions where Miranda warnings do not need to be given. They generally fall within an umbrella of “exigent circumstances”. These exceptions are not a suspension of the 5th Amendment, but rather a suspension only of the requirement that a Miranda warning be given.

    There are a couple of famous cases where the Court found that no Miranda warning had to be given, I can think of three off the top of my head.

    1) guy commits crime, runs into grocery store, the police don’t know where the gun is, but are afraid it is in public. The Court held it was fine to ask about the whereabouts of the gun.
    2) a guy gets picked up for another weapons crime at or near some kind of a school for disabled children, but is found without the weapon. The police, concerned for the welfare of the children (who might find the gun) were able to ask him questions about the gun without receiving a Miranda waiver.
    3) An officer asks a detained suspect about dangerous items on his person that might injure the officer during the search (needles and so forth). No Miranda warning was given.

    So then, what is going on here? The interrogating law enforcement agency is arguing that, because the potential existence of other bombs may pose an immediate risk to public safety, they are not required to read a Miranda warning. If this case goes to trial the defense will almost certainly argue (outside of the presence of the jury) that this was an improper use of the public safety exception, and so all information gained from the questions should be thrown out.
    The defense could also potentially win half of the argument, and have some information thrown out (for instance, if the law enforcement asked non-public safety related questions, such as “why did you do it”) and allow other statements to be admitted into evidence (“are there any other bombs”).

    As of yet, there has been no judicial opinion on whether this usage of the public safety exception was warranted, and just because law enforcement chose that route, it does not mean the evidence obtained will be ruled admissible (which is what happened in the actual Miranda case).

    But, here is where it gets a bit more complex. Even if the use of the public safety exception was invalid, it only results in the subsequent statements from being used in the prosecution’s case in chief against the Defendant. Other evidence is still admissible. In this instance, based on news reports I have read, it seems that the statements may not be all that important in the prosecution’s case (although of course, the prosecutor would love to have them I am sure).
    For these reasons, law enforcement may have chosen to follow this route in the hopes of getting some additional information more with an intelligence gathering objective (as opposed to gathering information for the prosecution), because everyone knows that the defendant’s position will be much stronger once he is assigned counsel.

    Finally, some may wonder why law enforcement thinks giving Miranda is so harmful to their cause. I also sort of wonder this. It is my experience that it is only those more experienced with the criminal justice system, or those who come from a culture adverse to law enforcement that ever actually invoke their Miranda rights. The vast majority of suspects talk a great deal. A good example of this can be seen on the show “the First 48” (its on Netflix streaming). If you have never seen one, it follows a homicide investigation from the start, and is a good glimpse into the basics of law enforcement at the murder level (which obviously involves different resource levels than the prosecution in this instance). The vast majority of Defendants in that show, as in real life, sink their own battleship by speaking at length with the police, even after they have received a Miranda warning.

    For a sort of run through of how all this stuff works, here is a sort of cheat sheet for law students:

    It is not really complete, but if you are interested, it is a really good start.

    Ok, I have written way too much. Again.

Comments are closed.