Mythbusting the Miranda rights controversy

April 20, 2013 – Last night and this morning, everybody’s talking about Miranda rights and why the feds did or didn’t, should or shouldn’t read them to Dzhokhar Tsarnaev, the 19-year-old arrested as one of the Boston Marathon bombers. Some of my Facebook friends, and a lot of others, think that it’s outrageous that the feds are “denying him his Miranda rights.” Not so.

First of all, NO ONE HAS A RIGHT TO HAVE A POLICE OFFICER READ SOMETHING TO THEM OUTLINING THEIR RIGHTS. That is not what “Miranda rights” means. Like many things in law, it’s not as simple as you think.

Yes, police routinely “read the Miranda warning” to suspects before questioning them. They do so for the benefit of the prosecution, not for the benefit of the defendant. If the police question someone in custody without first “reading them their rights,” then that person’s answers to police questions cannot be used against the defendant at trial.

Police want to be able to use the defendant’s statements at trial. Therefore, they read the Miranda rights.

With or without having their rights read off a card, every person in the United States has a right to remain silent — that is, a right not to be “compelled in any criminal case to be a witness against himself” (Fifth Amendment). Every person who is charged with a crime has the right to be represented by a lawyer, “to have the Assistance of Counsel for his defence” (Sixth Amendment). And so on. See the sidebar for Wikipedia’s entirely adequate Miranda warning text.

So — if you see me smash the window of your car, and the police do not “give me my Miranda rights,” it probably doesn’t matter. They still have your testimony, and they do not need my words to convict me.

So why did the U.S. Attorney talk about an exception to the Miranda rights rule, and what was she talking about?

As succinctly summarized in the New York Times:

The Miranda warning comes from a 1966 case in which the Supreme Court held that, to protect against involuntary self-incrimination, if prosecutors want to use statements at a trial that a defendant made in custody, the police must first have advised him of his rights. The court later created an exception, allowing prosecutors to use statements made before any warning in response to questions about immediate threats to public safety, like where a gun is hidden.

When the police found Tsarnaev hiding in the boat, they probably asked him whether there were any guns or explosives nearby. According to the news reports, they did not first “give him his Miranda rights.” That sounds pretty reasonable. The exception means that if he said anything to them in the few minutes between being captured and being hauled off to the hospital, that might be admissible in a subsequent prosecution. That’s all it means.

Even if you think police should have read him the Miranda warning before asking him about explosives, it really does not seem likely to make any difference to the prosecution of the case, or to his defense.

Today, on the day after the arrest, some news reports continue to say that Tsarnaev has “not been given his Miranda rights,” as if this is a continuing issue. How do they know? Do they know whether police have questioned him in the hospital? Do they even know if he is conscious?

Would the police question him in the hospital without advising him of his Miranda rights? I can’t think of a single reason why they would — especially since this 19-year-old U.S. citizen has undoubtedly seen all of the same NCIS, Law and Order, Criminal Minds, CSI and other police procedural shows that the rest of us watch, and already “knows” all about it.

[If you want to read the original U.S. Supreme Court ruling, it’s here: Miranda v. Arizona – 384 U.S. 436.]