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April 25, 2013

Judge Orders That Proceding Against Dzhohkar Begin, and Reads Him His Miranda Warning, And Then Dzhohkar Stops Talking

Before discussing the story, here's some background on what Miranda is, and what it's not.

Although we often say "Miranda rights," that's not technically accurate; there are no rights created by Miranda. "Miranda rights" are those rights of which an accused is advised per the formula announced in the 1966 decision Miranda v. Arizona, to wit:

You have the right to remain silent. If you give up this right, anything you say can and will be used against you in a court of law.

You have the right to an attorney. If you cannot afford an attorney, one will be provided to you by the state.

The first warning informs the accused of his Fifth Amendment guarantee that he cannot be compelled to testify against himself at court, and the second informs him of the Sixth Amendment right to have the assistance of counsel in preparing a defense and at trial.

The point is, everyone has their 5th and 6th Amendment rights, at all times. (In theory-- of course, any unscrupulous cop may steal them from you, but as a Constitutional rule you do have them.) When we say we're not giving someone their "Miranda rights," what we mean is that we're not giving them the standard warning about what their rights are -- but they do retain all their rights. We're not taking the rights away, or denying the rights; we are merely (if I may use that word) deciding not to advise them of their rights.

Why? Well, the moment someone hears the word "lawyer" he might start thinking maybe that's a good idea. Power of suggestion and all.

When we speak of "not giving someone Miranda" we're not talking about stripping them of all rights-- we're not saying we've decided we will illegally and unconstitutionally compel him to testify against himself. A lack of Miranda warning does not equal waterboarding. It also doesn't mean we'll refuse to give him a lawyer if he affirmatively asks for one. It just means we're not going to suggest doing so to him.

The other thing to keep in mind is that there is a standard penalty for not Mirandizing suspects: That penalty is that any incriminating information the suspect offers (confessions or other incriminating statements, such as false accounts of his actions, where his deception is used to infer guilt) cannot be offered at trial against him.

Makes sense -- if you don't Mirandize someone, and then that failure to Mirandize leads him to incriminate himself, then the incriminating statements he makes can't be used at trial. However, all other evidence you collected can be used against him; a suspect isn't cut free just because he hasn't been Mirandized. (Though it can lead to that if the only real evidence against him was his confession/incriminating statements. But if there's a mountain of physical and eyewitness evidence against an accused, then the loss of a confession isn't a grievous blow to the case.)

Orin Kerr discusses this at the Volokh Conspiracy.

The point is that Miranda doesn't even have to be read to a suspect -- it only has to be read to a suspect if the investigators have an eye to using his statements against him in court. If investigators do not plan on using these statements -- if, for example, they don't think they need a confession because their suspect is on video depositing the bombs and also confessed to a civilian who he carjacked and is also testified against by an eyewitness who looked him straight in the face -- then you don't need to give a Miranda warning.

You don't need his confession, so just take the penalty, in football terms-- intentionally take the safety. Exchange the minor loss of 2 points for the greater good. And the greater good here would be getting Dzhohkar to talk about third parties who may have been involved in the plot.

Here's Orin Kerr:

Miranda is a set of rules the government can chose to follow if they want to admit a personís statements in a criminal case in court, not a set of rules they have to follow in every case. Under Chavez v. Martinez, 538 U.S. 760 (2003), it is lawful for the police to not read a suspect his Miranda rights, interrogate him, and then obtain a statement. Chavez holds that a personís Miranda rights are violated only if the statement is admitted in court, even if the statement is obtained in violation of Miranda. See id. at 772-73. Further, the prosecution is even allowed to admit any physical evidence discovered as a fruit of the statement obtained in violation of Miranda ó only the actual statement can be excluded.

So, absent a Miranda warning, you can obtain all the statements you like. You just can't use them in court against the suspect. You could, however, use that information to develop a case against other suspects. (Note that you can't plead the violation of someone else's rights as a reason why evidence against you should be suppressed. Your right to have information excluded is based on your own rights being violated, not some third party's.)

So, why was Miranda read to this guy? Even if you don't buy the Public Safety exemption (which I allow, is sort of bullshit), we don't really need a confession from Dzhohkar, given that we have all the evidence in the world against him, and will only collect more and more from his apartment and computer.

What we wanted was to get him talking about other jihadis, trainers, perhaps, who taught Tamarlan, and perhaps this "Mischa" person who encouraged a radical Islamist philosophy, etc.

Why do anything that would make him stop talking?

And yet that's what's been done. Because a lot of people think "Miranda" equals "Your rights under the Constitution," and if there's no Miranda then it's Torture n Stuff.

Including judges, apparently.

The FBI had been questioning Tsarnaev for 16 hours before the judge called a start to the court proceeding, officials familiar with the Capitol Hill briefing told Fox News. Moreover, the FBI informed lawmakers that the suspect had been providing valuable intelligence, but stopped talking once the magistrate judge read him his rights.

And so we lost potentially important information about third parties.

Like, for example, this tidbit about Mother Tsarnaev:

The mother of Boston Marathon bomber Tamerlan Tsarnaev knew as early as 2011 that her son had been radicalized and sent text messages to family in Russia suggesting he was willing to die for Islam, the FBI told lawmakers this week according to two officials with knowledge of the Capitol Hill briefing.

I don't know this woman's citizenship status, but I know what I'd like it to be, if it could be altered.

And speaking of that: A majority of the public would like to reduce immigration, including legal immigration, and I think it's time for some real Immigration Reform.

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posted by Ace at 12:56 PM

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