So, I've been doing some poking around, especially since Sunday's talk shows. Attorney General Holder made some interesting comments regarding Miranda. And of course the wingnuts are all over Miranda and "terror suspects".
I have not yet made up my mind as to whether or not I agree with the Attorney General so I have decided to do some basic research.
Let's start with the actual Miranda case. Ernesto Miranda was tried for rape back in the 60s. His lawyer contended that his 5th and 6th Amendment rights had been violated.
And here are those two amendments:
V. No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Basically, Miranda made some self incriminating statements and was not advised by counsel. This was the basis for his first trial. The court ruled in his favor. The court ruled that suspects MUST be informed of their rights under the Constitution. Here is the pertinent part of the ruling:
...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says will be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent her or him.
So now, as all you Law and Order fans know, whenever someone is arrested, they are read their rights, or any statements made don't get entered into evidence and are thrown out. We all know the basic spiel:
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 an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?
However, the Court is explicit in stating that the suspect UNDERSTANDS the rights. Sometimes officers ask "do you understand" after every sentence. Some "translate" the statement to the suspect's level of understanding. These are admissible if the original statement is read and the "translation" is on tape or written. Foreign language translations have to be made available.
Some jurisdictions provide extra rights for juveniles such as the right to remain silent if a parent is not there.
There are also variations depending on area.
Some states use this:
We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.
Border states also use this:
If you are not a United States citizen, you may contact your country's consulate prior to any questioning.
Some states require a sentence letting a suspect know that waiving the rights is NOT a one time absolute occurrence:
You can decide at any time from this moment on to terminate the interview and exercise these rights.
And some states also add questions to comply with the Vienna Convention on Consular Relations:
Do you understand each of these rights I have explained to you? Having these rights in mind, do you wish to talk to us now?
The Miranda rule applies to the use of testimonial evidence in criminal proceedings that is the product of custodial police interrogation. Therefore, for Miranda to apply six factors must be present:
- evidence must have been gathered
2. the evidence must be testimonial
3. the evidence must have been obtained while the suspect was in custody
4. the evidence must have been the product of interrogation
5. the interrogation must have been conducted by state-agents
6. the evidence must be offered by the state during a criminal prosecution.
So basically what we have is a court ruling saying that all suspects under what is called a "custodial interrogation" must be made aware of the rights they have under the Constitution of the United States. So to read the Miranda warning does NOT confer any special rights on a person THAT THE PERSON DOES NOT ALREADY HAVE. However, clear steps must be followed for statements by a suspect to be taken into evidence at trial.
Here is where some confusion creeps in. While arrests and interrogations can legally occur without the Miranda warning being given, this procedure would generally make the arrestee's pre-Miranda statements inadmissible at trial. However, pursuant to the majority opinion in United States v. Patane, evidence obtained as a result of pre-Miranda statements may still be admitted.
In some jurisdictions, a detention differs at law from an arrest, and police are not required to give the Miranda warning until the person is arrested for a crime. In those situations, a person's statements made to police are generally admissible even though the person was not advised of their rights. Similarly, statements made while an arrest is in progress before the Miranda warning was given or completed are also generally admissible.
Here's another confusing scenario: If an inmate is in jail and invoked Miranda on one case, it is unclear whether this extends to any other cases that they may be charged with while in custody. For example: a subject is arrested, charged with robbery, and is held in county jail awaiting trial. He invoked his Miranda rights on the robbery case. In custody he is involved in a fight where another inmates is badly hurt. He speaks to the custodial staff regarding the fight without invoking Miranda. It is unclear if this statement is admissible because of the original Miranda statement.
So that's an overview of the Miranda ruling, and some of the legal confusion surrounding parts of it. Now the interesting part comes with something called the "Public Safety Exception". For example, if an arrestee hid a handgun in a supermarket just before being arrested, it is not necessary that the police Mirandize the suspect before asking where the gun is. This scenario in fact, is the basis of the Quarles case, ruled on in 1984. In that case, the Court ruled that Miranda warnings do not need to be administered when there is an imminent threat to public safety. This is consistent with the point that Miranda rights only apply to criminal trials and not to police intervention. Anything a person says, self-incriminating or not, can be used by the police to prevent or interrupt further crimes or violations of the law where it is within the authority of the police to intervene, whether or not this violates the interest of the person from whom the police obtained the information necessary for them to intervene.
Here is where the Attorney General is leading to. What questions are allowed under the exception? How long can the suspect be questioned? What types of suspects would fall under this exception with regards to a terrorist activity? There exists right now a very wide latitude in which this exception can be abused. And not only for terrorism related suspects. Regular so called run of the mill criminals can be subject to this as well. Finding the right constitutional balance will take time, and it MUST be done by Congress, and not by executive order. It would have to include ALL terrorism suspects, including domestic. Would there also be a codified difference between terrorist types and regular criminals?
At the beginning, I said I wasn't sure I agreed with the Attorney General. I'm still not sure. Should this be codified more? Perhaps. Do I support this? That would depend on the language that is proposed.
I am probably somewhat more law-and-order than many people on this site. That said, a CAREFUL codification and modification of the Public Safety Exception would be a vehicle to prevent future abuses. And that is the key. Shahzad and Captain Underpants were questioned for much longer than the customary periods before being notified of their rights. Will that evidence be admissible? We can only hope that the language is both sensible and strict, and not only preserves the rights granted under the Constitution, but enables law enforcement to protect us.