Monday, June 13, 2016

From NOLO: The Public Safety Exception to Miranda Officers don't have to abide by Miranda in certain kinds of emergencies.

The Supreme Court carved out an exception to Miranda warning in a 1984 decision.

- Click here for a more thorough description of the exception here.

Here is a look at the exception in light of recent events - notably the bombing of the Boston Marathon.

- Charles Lane: An update for Miranda rights.
Established in Miranda v. Arizona 47 years ago, the you-have-the-right-to-remain-silent litany has “become part of our national culture,” as the Supreme Court noted in a 2000 ruling that reaffirmed Miranda.
My favorite example: In the 1987 film “Robocop,” the eponymous cyborg hero grabs a murderer by the lapels, growls, “You have the right to an attorney” — and hurls the creep through a plate-glass window.
Today, the issue is how, or whether, to apply Miranda to Dzhokhar Tsarnaev, the surviving suspect in the Boston Marathon bombing. The Obama administration advocates a “public safety” exception that would permit the interrogation of terror suspects for a while before “Mirandizing” them and allow the government to introduce the resulting information at trial.
That puts the administration between some Republican senators who want to dispense with Miranda and designate Tsarnaev an “enemy combatant,” and civil libertarians who fret that the public-safety exception could set a precedent that ends up nullifying Miranda.
None of these positions is entirely satisfactory. Neither is the Miranda doctrine itself — not anymore. Its fault lines were evident well before 9/11 spawned terrorism-related dilemmas.
. . . Miranda seems an especially awkward fit for the Tsarnaev case. The public interest in pumping him for intelligence is high — to detect bombs elsewhere, to unravel a conspiracy and so on. Insisting on reading him his rights immediately anyway seems formalistic, to say the least.
Meanwhile, the government has little incentive to Mirandize Tsarnaev at all, given that the evidence against him seems overwhelming even without a confession. In this case, the Obama administration’s public-safety exception seems like a legalistic attempt to preserve the admissibility of evidence it might not even need. Yet invoking it may enshrine an exception far more expansive than the one created by the 1984 Supreme Court case upon which the administration’s legal theory rests. In that case, the interrogation consisted of immediately asking a hurriedly arrested rape suspect, “Where's the gun?”
Maybe someday the Supreme Court will sort it all out, just as it has attempted to fit a host of other unforeseen applications into the Miranda paradigm over the years.
Wouldn’t it be better to achieve the necessary and legitimate purposes ofMiranda through more efficient means? One alternative made possible by evolving technology would be to require video recording of all in-custody police questioning — to deter abuses and to let juries decide if a confession was voluntary.
Updating Miranda won’t be easy, since the Supreme Court already revisited its basic validity in 2000. However, Chief Justice Earl Warren’s opinion in Mirandanoted that “it is impossible . . . to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States.” Warren disavowed an intent to “straitjacket” federal and state lawmakers.

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