an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
With respect, I think that the exchange between Sandy and Jason misses the point. Miranda is understood by most laypeople and (in my experiences teaching abroad) foreigners as synonymous with "treating criminal defendants fairly." Why or how the case came to represent that ideal is an interesting question, but the result is that when Miranda rights are not given many people see that as terrible even though in practical terms it probably is not. That legal fiction cannot just be dismissed. It matters.
Let me add one other point. The Justice Department's decision to invoke the "public safety" exception to Miranda in the Boston Marathon case was also largely symbolic. It was a way of signaling that they were treating the case seriously while warding off the (in my mind, ludicrous) argument that the suspect should be given enemy combatant status. Was that a good idea? If it alleviated political pressure to use the flawed enemy combatant machinery, then I would say yes. Posted
by Gerard N. Magliocca [link]
Prof. Levinson spoke of "a preceding constitutional norm against potentially abusive police interrogation" ... which sounds like "treating criminal defendants fairly." I think he recognizes the symbolism and this is why the criticism of Bazelon was upsetting.
There is no public evidence that the Tsarnaevs were members of any foreign nation or group at war with the United States and thus cannot be detained as enemy combatants under the law of war.
Conservatives need to avoid the fallacy of terrorist = enemy combatant the same way that liberals need to avoid the fallacy of terrorist = civilian criminal defendant. Context is everything.
Justice was substantively (not just symbolically) correct to employ the public safety exception to the Miranda warning evidentiary rule. These terrorists just finished detonating two bombs at the marathon finish line and then either used or deployed further explosives in their flight. Law enforcement has every right to ask and there is nothing unfair about asking the surviving terrorist if they have planted other bombs and whether he is part of a larger group planting bombs or committing other terrorist acts.
Rights are not symbolic, or a privilege based on political signalling or calculation.
That said, There are really no "Miranda rights." Miranda warnings are merely a prophylactic measure meant to ensure that the defendant is aware of his rights. I doubt that the defendant was unaware of his fifth amendment right to keep quiet. Was he under duress? that's a tougher question.
More interesting, since this is a death penalty case, is whether questioning prior to a Miranda warning reduced his ability to plea bargain his case down to life in return for answering questions. Maybe its not the questioning per se but the right to counsel (vis-a-vis the ability to get a plea deal) that was infringed.
Overall, though, I see this debate as a positive sign. That fact that people are even debating the "public safety exception" on CNN for a terrorist shows how seriously we take rights in this country. The uncle on TV was pretty good - I love this country because everybody is treated like a human being. Well, that's the goal anyway.
Rights without "prophylactic measures" to actually protect them in real world situations are weak reeds. "Miranda rights" ultimately are expressed near the end of the opinion:
"From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner."
It is a comprehensive thing -- being advised of his rights in some stock way alone will not "effectively protect" the person.
Well said Joe. I guess one could say one has no 'exclusionary rule' rights, just Fourth Amendment rights just as some say one has no 'Miranda rights' just Fifth and Sixth Amendment rights, but in both cases the rules are a tool tied to and for the purpose of safeguarding those rights.
The government can force someone to appear before a Grand Jury. If they are given use immunity for their testimony, then they are required to answer under oath any question put to them. They are not entitled to have a lawyer present in the Grand Jury room. There is no constitutional right to remain silent. Of course, when a Grand Jury does the questioning instead of the police, there is Judicial supervision. At the same time, while you may remain silent during police questioning, one granted use immunity any refusal to answer questions before a Grand Jury is punished by imprisonment.
Police questioning without a Miranda warning is just an informal prelude to the far more legally coercive questioning before a Grand Jury. You have more rights and options with the police.
"Police questioning without a Miranda warning is just an informal prelude to the far more legally coercive questioning before a Grand Jury. You have more rights and options with the police."
The "informal" nature along with it not being in open court with "judicial oversight" in reality leads to some different "rights" and "options" in a police station than during a Grand Jury. Also, even if the lawyer isn't there, you can consult with the lawyer beforehand and at times during.
The Miranda exceptions are growing. It is now routine for police about to conduct a search to ask an un-Mirandized suspect whether there is "anything we ought to know about" in the location. This query, supposedly to protect the officers against booby traps or dangerous chemicals, is in fact used to connect the suspect with the premesis, to prove knowledge of the criminal activity, and to prove knowledge of the nature of the object of the search.
At the same time, the scope of Miranda is shrinking. The rights must now be unequivocally invoked, and officers are allowed to ask questions to "clarify" the intent of the suspect. "Knock and talks" are considered voluntary, even though the officer has relied on a show of authority to justify asking them.
It is ironic that the original post referred to Miranda itself, when there is so little of that decision remaining.