Balkinization  

Saturday, April 20, 2013

Miranda Schmiranda

Jason Mazzone

No surprise: the usual critics are crying foul at the news that the government has not/will not give Boston bombing suspect Dzhokhar Tsarnaev notice of his right to counsel and right to remain silent in accordance with Miranda v. Arizona. At Slate, for example, Emily Bazelon concludes dramatically that the failure of the government to Mirandize Tsarnaev should alarm every American because "when the law gets bent of shape for him, it's easier to bend out of shape for the rest of us." This is the sort of conclusion that follows from learning criminal procedure via Law and Order. A newsflash: Miranda does not in any way require the police to warn suspects taken into custody that they don't have to answer questions or that they have a right to have an attorney present. All that Miranda says is that if the interrogators don't give the warnings, then (barring an exception), the government won't be able to introduce into evidence at trial statements the unwarned suspect makes. Accordingly, there is nothing remotely unusual about the Tsarnaev situation. Millions of criminal suspects are questioned every year by the police (and other law enforcement officials) without ever being advised of their rights under Miranda. Police officers I know tell me they hardly ever Mirandize individuals they arrest because cases in which the arrestee's statements are relevant to securing a conviction (especially in a world of plea bargaining) are quite unusual. Indeed, as the Miranda Court obviously understood, when the government doesn't need a suspect's own statements to secure a conviction, it would be foolish to warn the suspect to stay quiet or request counsel. The physical evidence against Tsarnaev is almost certainly so overwhelming that despite the massive media attention during the past few days, on the Miranda issue, his case is quite humdrum: no need to use his own testimony at trial and so no need to warn him to stay quiet or ask for a lawyer. Nothing unconstitutional about that.

      

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