OPINION

'Miranda' and the Constitution

The Supreme Court never has recognized a public-safety exception to the constitutional requirement for providing an attorney to a suspect who requests one.

, The National Law Journal

   |5 Comments

It has become increasingly evident that the Justice Department violated the constitutional rights of Boston bombing suspect Dzhokhar Tsarnaev by questioning him without his Miranda warnings. It is disturbing that the DOJ would risk its criminal prosecution by ignoring such basic rules and even more disturbing for what this says as to its view of the Constitution.

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What's being said

  • Quig653

    Mr Chemerinsky makes many important points, and I assume for the sake of brevity and simplicity he used some basic statements which aren't technically correct; as Mr Scheidegger points out; i.e. time of arrest vs. time of questioning. There could be a time when public safety concerns might necessitate a decision to ignore normal procedure and question a suspect without regard for their fifth amendment rights. I would gladly forfeit prosecution if it meant saving lives. But the point is that it has to be a choice. You follow the law or you suffer the consequences; in this instance, inadmissible statements and evidence. What we always forget in these situations is that the suspect has not been proven guilty yet.

    Mr Chemerinsky said it beautifully; "There is an enormous temptation to suspend the Constitution in a crisis. But the Constitution is not a luxury to be indulged until the ends justify other means."

    I would imagine that the times when the public safety exception should apply, would be extremely rare.

  • g3

    Miranda warning must be given not at the time of arrest, but rather, before questioning. The practical question/concern that I have in the Boston bombing case is this: If the non-Mirandized questioning is deemed unconstitutional, isn't everything that the suspect said going to be tainted as fruit of the initial error. Doesn't DOJ risk losing every shred of evidence gained from the suspect or developed as a result of what the suspect told them? The example that comes to mind, albeit with different facts, is the Oliver North prosecution where his immunized testimony before Congress doomed his prosecution despite extraordinary efforts by prosecutors to avoid being tainted by the information provided by North to Congress.

  • Kent Scheidegger

    Astonishing. Chemerinsky writes an entire article on the subject of what the law "requires" in this area, yet he seems to be entirely unaware of a critical distinction and does not mention at all the primary Supreme Court case on the point.

    There is a distinction between the law requiring someone to do something as an affirmative obligation and requiring the same act as a mere condition to something else. Chemerinsky writes, "The law is clear that when a suspect is taken into custody, he or she must be given Miranda warnings, and all questioning must cease when the suspect requests a lawyer. Any statements gained in violation of these requirements must be suppressed and cannot be introduced as evidence." The second statement is true, with some important exceptions, but it does not follow that failure to Mirandize is a violation of the Constitution by itself.

    The Supreme Court settled this 10 years ago in Chavez v. Martinez, 538 U.S. 760 (2003). Questioning an arrestee without giving Miranda warnings is not, by itself, a violation of the Constitution, and the arrestee cannot sue for it under 42 U.S.C. 1983. (Brutality in extracting involuntary statements would be actionable, but that is a different issue.) The law does not require, as an affirmative obligation, either the giving of warnings or ceasing when the arrestee asks for a lawyer. It only requires those things as a condition to admissibility of the answers.

    The Administration has not ignored the Constitution in this matter. It apparently made a judgment call that the importance of getting information from Tsarnaev for other reasons outweighed the likelihood that the statements would not be admissible at his trial. That was a valid judgment to make.

  • John Roberts

    Chemerinksy is one of the most brilliant constitutional scholars of our time so I try to read everything he writes.

  • Ersatz

    Chemerinsky is a publicity-seeker and I don't bother reading his opinions on anything.

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