public safety exception to Miranda

[Platapus]

I am starting a new thread so that the other Boston incident thread does not get derailed.

There is, and will continue to be controversy, concerning the decision to not issue Dzhokar Tsarnaev, a US Citizen, his rights against involuntary self-incrimination, more commonly called his Miranda rights.

The authorities who are choosing not to issue him his Miranda rights are invoking what is called the Public Safety Exception to Miranda. It is quite possible that people here may never have heard of this exception, but it has been valid since 1984 in New York v. Quarles.

The FBI has published a nice article that discusses the Public Safety Exception to Miranda. If anyone is interested in discussing this controversial topic, this article will serve nicely as a baseline understanding.

http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/february2011/legal_digest

And for geeks like me who actually like to read SCotUS opinions:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=search&court=US&case=/us/467/649.html

[Platapus]

My opinion is that if this case is reviewed by the Supreme Court, that the Public Safety Exclusion to Miranda will be judged not applicable in this case.

1. There was no probable cause to presume that there was an imminent threat to public safety. Unlike in U.S. v. Khalil (2000), there was no evidence that there were additional IEDs. Using the fear of additional IEDs to invoke the exclusion should not be allowed. If it were, then it could be applied to any crime where violence is involved. There needs to be some probable cause, as there was in U.S. v. Khalil.

2. There is no indication that there are any living accomplices to this crime. Invoking the exclusion based on the fear that there *might* be an unknown accomplice that *could* commit further acts of violence should not be allowed. If it were, it could be applied to any crime where the police don't know if there is an unknown accomplice.

3. The judicial intent of the exclusion is to mitigate immediate and local threats. Not threats that may occur in distant places at some unknown time in the future. The court cases where the exclusion has been applied all pertained to immediate (temporal) or local (locational) threats of a short duration/limited area. I do not believe the judicial intention of the exclusion was ever intended to be applied to interrogations taken place several days after the arrest. In U.S. v. Khalil, the case that most closely resembles the Boston incident, the exclusion interrogation occurred within hours of the arrest, but in a different location (hospital).

This could be a landmark case. The Public Safety Exclusion to Miranda has always been contentious, but the authorities have used it with restraint. The exclusion has its purpose, but it should not be casually expanded without restraint.

[frau kaleun]

I'm completely unfamiliar with the legal precedents and reasoning behind the decision but FWIW I got a squicky feeling when I heard the report that they were considering not Mirandizing him after taking him into custody. Just on general principles it makes me uncomfortable, besides which if there's any chance that not having done so would lead to an otherwise "clean" conviction being tossed aside on a technicality... I wouldn't like that at all. I say, why take the chance, go by the book right down to the last bit of fine print so there is no doubt that every proper procedure was followed and nothing can be called into question somewhere down the road.

[Platapus]

Smart criminal investigators will arrange a different investigator to conduct all the interrogations, while other investigators go out and investigate the case.

The records are kept separate. Then if any of the interrogation is ruled inadmissible, the fact that the field investigators did not have access to it, will make it easier to have the field evidence admissible. Often Law Enforcement does not have that luxury.

The bottom line is that anything recovered during an interrogation before Miranda warnings has been issued is generally ruled inadmissible as direct evidence. Very special cases of res gestae are some of the exemptions.

If you can get a conviction without using any non-mirandized evidence, then the fact that you did not mirandize a defendant is not a problem. You only need to issue Miranda warnings when you intend to use statements during interrogation as evidence in the case.

Sneaky prosecutors have tried to take advantage of this, but usually it backfires upon appeal.

In this case, perhaps there is no intention to ever formally take this individual to trial. Unfortunately, under the current legal situation, there may be venues to simply throw this US Citizen in a military prison and claim that he is an "enemy combatant". In that case, Miranda goes out the door.

This is why I strongly oppose classifying US Citizens as "enemy combatants" for the purpose of imprisoning them without a trial.

This guy may be a scumbag, and probably is. But as a US Citizen, he still has his constitutional rights even though we may hate his guts. :yep:

[ETR3(SS)]

BINGO! I'm glad in all this hatred and quick judgment I'm not the only one that went "wait a sec..wtf?" I made a couple comments on FB about it and was quickly flamed as a liberal supporting a muslim president.

[swamprat69er]

Let me ask this; The authorities don't read him his rights, what happens if he shuts up and doesn't say anything at all. No name, no address, nothing at all. What can they do? Certainly not beat it out of him.

I'm just asking, that's all.

[em2nought]

Maybe they just wanted a reason to send him back to Putin. :D

[GoldenRivet]

There *was* an imminent threat to public safety and the clause *is* applicable in this case.

Why?

The authorities had to ensure that he is not part of a larger cell or that additional bombings or attacks were not in the works or already in place hidden elsewhere that had yet to be discovered.

[Betonov]

Maybe they just wanted a reason to send him back to Putin. :D

Now thats worse than waterboarding

[Schroeder]

This can become a very slippery slope....:-?

[Oberon]

:hmmm: They really have to do things as by the book as possible here, the last thing you want to happen is for the proceedings to be mucked up because someone didn't dot their i or cross their t, the general public will be annoyed at the money that will be spent on this case anyway, so any more that's spent through delays is just going to inflame public opinion.

[Jimbuna]

There *was* an imminent threat to public safety and the clause *is* applicable in this case.

Why?

The authorities had to ensure that he is not part of a larger cell or that additional bombings or attacks were not in the works or already in place hidden elsewhere that had yet to be discovered.

Well that is my initial understanding.

[Ducimus]

This is why I strongly oppose classifying US Citizens as "enemy combatants" for the purpose of imprisoning them without a trial.

This guy may be a scumbag, and probably is. But as a US Citizen, he still has his constitutional rights even though we may hate his guts. :yep:

Same here. Reclassifying US citizens (scumbag though they may be), is a scary thing. This goes hand in hand with "politics of fear" and the ever increasing erosion of our civil rights.

While I personally would love nothing more then to kick the scumbag's teeth in with an old steel toe work boot, he is a citizen, and as thus is entitled by right, to due process. Just because we my hate the guys guts, doesn't change that.

This can become a very slippery slope....:-?

Indeed.



As an aside, there's already a couple videos on this issue. That talk about this very issue.

I've posted this guys videos on the gun rights issue. Again, he makes a good point.
Habeas "Graham"-us (http://www.youtube.com/watch?v=E_BPgG7M1R0)

I found this gal awhile ago on youtube. She makes a point, but has fun doing it.
Boston Bombing and Civil Liberties Violations (http://www.youtube.com/watch?v=hvmzCMT-4Q4)

Oh yeah. I've definately turned Libertarian. Then again, maybe I always was but didn't realize it. Meh. Anway, my final thought on this subject:

the constitution and the bill of rights is the supreme law of the land, it is the very framework upon which our country is built. As such it trumps anything our politicians want or say. We can't just pick and choose which parts we like and discard the parts we don't. We have to abide by it 100%, else our entire framework looses integrity, and things goes spiraling downward the slippery slope out of control. Or, In metaphor, If America was likened to a building that was severely damaged by disaster, you don't go about trying to repair the building by cutting away at it's structural support with a torch or beating on it with a sledgehammer. We want to save and repair the building, not make it fall down.

[Armistead]

My opinion is that if this case is reviewed by the Supreme Court, that the Public Safety Exclusion to Miranda will be judged not applicable in this case.

1. There was no probable cause to presume that there was an imminent threat to public safety. Unlike in U.S. v. Khalil (2000), there was no evidence that there were additional IEDs. Using the fear of additional IEDs to invoke the exclusion should not be allowed. If it were, then it could be applied to any crime where violence is involved. There needs to be some probable cause, as there was in U.S. v. Khalil.

2. There is no indication that there are any living accomplices to this crime. Invoking the exclusion based on the fear that there *might* be an unknown accomplice that *could* commit further acts of violence should not be allowed. If it were, it could be applied to any crime where the police don't know if there is an unknown accomplice.

3. The judicial intent of the exclusion is to mitigate immediate and local threats. Not threats that may occur in distant places at some unknown time in the future. The court cases where the exclusion has been applied all pertained to immediate (temporal) or local (locational) threats of a short duration/limited area. I do not believe the judicial intention of the exclusion was ever intended to be applied to interrogations taken place several days after the arrest. In U.S. v. Khalil, the case that most closely resembles the Boston incident, the exclusion interrogation occurred within hours of the arrest, but in a different location (hospital).

This could be a landmark case. The Public Safety Exclusion to Miranda has always been contentious, but the authorities have used it with restraint. The exclusion has its purpose, but it should not be casually expanded without restraint.

This may be the case that makes or breaks this exclusion, but regarding your points, it's speculation. I would think any time there is a mass attack on the civilian population, this exclusion would be in place.

What will be interesting, as in this case, the terrorist can't talk due to injury. I think the time limit of interrogation will be tested.

[Stealhead]

My opinion is that if this case is reviewed by the Supreme Court, that the Public Safety Exclusion to Miranda will be judged not applicable in this case.

1. There was no probable cause to presume that there was an imminent threat to public safety. Unlike in U.S. v. Khalil (2000), there was no evidence that there were additional IEDs. Using the fear of additional IEDs to invoke the exclusion should not be allowed. If it were, then it could be applied to any crime where violence is involved. There needs to be some probable cause, as there was in U.S. v. Khalil.

2. There is no indication that there are any living accomplices to this crime. Invoking the exclusion based on the fear that there *might* be an unknown accomplice that *could* commit further acts of violence should not be allowed. If it were, it could be applied to any crime where the police don't know if there is an unknown accomplice.

3. The judicial intent of the exclusion is to mitigate immediate and local threats. Not threats that may occur in distant places at some unknown time in the future. The court cases where the exclusion has been applied all pertained to immediate (temporal) or local (locational) threats of a short duration/limited area. I do not believe the judicial intention of the exclusion was ever intended to be applied to interrogations taken place several days after the arrest. In U.S. v. Khalil, the case that most closely resembles the Boston incident, the exclusion interrogation occurred within hours of the arrest, but in a different location (hospital).

This could be a landmark case. The Public Safety Exclusion to Miranda has always been contentious, but the authorities have used it with restraint. The exclusion has its purpose, but it should not be casually expanded without restraint.


I agree especially with #2 if they do this once it basically allows them to do it again under nearly any circumstance where violence occurred or is possible.

I see this as a very slippery slope.

When you allow the government to openly choose when to make exceptions to the law of the land you are asking for trouble.Anyone that trusts they will only do it under the "correct" circumstances is foolish.

[Bilge_Rat]

some thoughts:

1. Miranda rights are the purest expression of "judge made" laws that conservatives are always railing about. Yes, the Constitution contains both a right to counsel and a right against self incrimination, but it was the Supreme Court that decided that this meant both a positive duty on the police to advise suspects of their rights and total exclusion of evidence in case of violation of said rights.

That is not to say that the decision is bad, merely that the Warren court chose the interpretation that was the most protective of suspect's rights and most restrictive on police.

Since Miranda, some legal scholars have argued that Miranda went too far and there should be a "good faith" exception where evidence could still be admissible if the violation of the Miranda rights is inadvertent or based on a technicality.

The Quarles decision was seen as an expression of such a "good faith" exception. i.e. a judge made exception to a judge made right. Since then, as can be seen from the FBI article, Courts have been expanding the scope of the "public safety" exception.

2. In the bombing, there are various reasons why law enforcement would want to delay giving the suspect his "Miranda" rights:

a) get more evidence against him. If it falls under the exception, great, if it does not, they only lose that evidence, so no great risk.

b) more likely, get evidence against other suspects. If suspect A reveals that he is in a plot with B and C, the evidence may not be admissible against A, but it would be against B and C.

[WernherVonTrapp]

I'm not as familiar as I used to be with Federal Law and the State I was an officer in, usually imposes stricter regulations upon law enforcement than the Federal Government does. Anyway, they are allowed to question him w/o advising him of his Miranda Right if the have cause to believe an imminent threat to the public still exists (US v. Ferguson (http://www.caselaw4cops.net/cases_new/us_v_ferguson_2cir.html), 11-3806-cr 2nd Cir. 2012). This potential threat is self evident (e.g., potential for unexploded IEDs and/or their location, coconspirators who may be preparing to harm the public, etc.). The key word here is "imminent threat". Now, I believe it goes without saying that, all this information and "just cause" will have to be shown in court during any trail.
Once (and if) the authorities are satisfied that no imminent threat exists, they will probably advise him of his Miranda rights before questioning him any further. They have more than enough physical evidence against him to charge him with several counts of murder, including his own brother's, not to mention the various terrorism related charges.

Still it will be interesting to see how it all unfolds in court once the attorneys get involved.

[Ducimus]

I wonder. At what point does one cross the line between, not creating extraneous threads by posting in an existing one, and being a thread necro?
Anyway, I was just watching this, and got a good laugh, but it still makes the point.

Jon Stewart explains "Miranda rights" (http://www.youtube.com/watch?v=qkbJETUz20E)

[Wolferz]

I wonder. At what point does one cross the line between, not creating extraneous threads by posting in an existing one, and being a thread necro?
Anyway, I was just watching this, and got a good laugh, but it still makes the point.

Jon Stewart explains "Miranda rights" (http://www.youtube.com/watch?v=qkbJETUz20E)

Leave it to the comedians to point out the circus of the absurd that is our talking heads and heads of state.:up::haha:

What the hey, let's just take everyone's rights away and try the case in the public square Ahhh wait, that's what they're doing now. Mob lynching and a pot luck brunch afterward. BYO Rope.

[Ducimus]

In related news as it pertains to individual rights or liberties, from the sounds of things, ANY phone call you make can be reviewed.

http://www.youtube.com/watch?v=UHArgyt8vQU

While, I applaud the efforts to get to the bottom of the Boston bombing, I find myself disconcerted at the idea that any and all conversations I have had with spouse or family members can be reviewed by the government, anytime they choose to do so. They say, they only do this for terrorist cases, but who enforces that policy? I doubt there's much in the way of checks and balances or oversight with this. I think there's a line here that is entirely too fine and narrow to be acceptable.

Moral of the story, watch what you say over ANY digital media. Phone or otherwise. ( Insert any Big brother metaphor's or reference's here. )