We're still learning new information about the Boston Marathon suspects. Last week it was revealed that the pair initially planned a July 4 attack, a detail gleaned from a hospital interview with Dzhokhar Tsarnaev, before he was read his Miranda warnings. We've also learned that the suspect stopped talking to investigators after a federal magistrate at the bedside proceedings read the suspect his Miranda warnings.
Before that, the FBI had relied on the "public safety exception" to Miranda, as a justification for interrogating Tsarnaev. But that reliance was misplaced. When the questioning began, the public safety exception was no longer applicable to the case. Whatever emergency may have existed at the time of the arrest had long been defused.
There is another reason, however, that the Miranda warnings need not and should not have been administered.
If it had been determined that a confession wasn't necessary for the prosecution of Tsarnaev -- and it appeared there would be sufficient evidence to convict without it -- then the Miranda Rule need not have been a concern. Not because of a public safety exception, but because the interrogation was not calculated to elicit a confession or press for self-incrimination, but to obtain information.
Some 20 years ago, when I was a judge on the New York Court of Appeals, I wrote a decision in a case where the police were told that a man in a supermarket in Queens had a loaded gun. When Benjamin Quarles was apprehended, he had an empty holster and the police asked where the weapon was. After the suspect showed the police where he had hidden the gun, he was arrested and charged with criminal possession of a weapon. It was argued that his incriminating statement about the gun was elicited in violation of his Miranda warnings.
My opinion in that case, later embraced by the Supreme Court, created the "public emergency exception" to Miranda. It allows the police to interrogate a suspect before administering the warnings, in order to protect the public in an unfolding and potentially dangerous situation. That exception to Miranda was used in 2009 in the interrogation of Farouk Abdulmutallab, the underwear bomber, and again in 2010 when questioning the Times Square bomber, Faisal Shahzad. In all of those situations, it was essential that interrogation be immediate and uninterrupted.
The reason for administering the Miranda warnings is to be certain that someone arrested for a crime isn't forced into confession. The warnings' genesis lies in the Fifth Amendment, which says that the government may not compel a person "in any criminal case to be a witness against himself." The framers knew that confessions could be easily obtained through torture or other forms of coercion. They also knew how tempting it was for law enforcement to facilitate a conviction by using such tactics to garner a confession.
To discourage this kind of abuse, the Supreme Court fashioned the Miranda warnings. A confession given by a person in custody, who has not been advised of his constitutional rights, cannot be used against him or her in a court of law.
It should be understood, first and foremost, that the failure to give the Miranda warnings does not result in a case being dismissed. It only results in the inability of the police to use an elicited confession against the accused. Indeed, the overwhelming majority of successful criminal prosecutions do not involve confessions. And no confession would have been needed to try and successfully convict Tsarnaev of the heinous crime he is accused of in Boston. It's hard to imagine a case where so much evidence of guilt is at hand.
The federal magistrate who interrupted the interrogation to administer Tsarnaev's Miranda warnings was well intentioned, but it appears to have been an unwarranted interference with an important investigation.
The Miranda rule enables us to protect a fundamental constitutional right without forcing the courts to allow the legitimacy of every confession to be proven before it is allowed into evidence. But if a suspect is being interrogated not to secure a confession but rather as part of an investigation, Miranda need not be invoked.